



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R.(R.) 
          v. British Columbia (Director of Child, Family & Community Services),







2006 
          BCCA 19



Date: 20060113





Docket: CA032796

Between:

R.(R.)

Appellant



And

British 
    Columbia (Director of Child, Family & Community Services)

Respondent








Before:


The 
          Honourable Madam Justice Rowles




The 
          Honourable Madam Justice Newbury




The 
          Honourable Madam Justice Levine








Appearing 
          on her own behalf


Appellant




D. 
          Hart


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver, British Columbia




27 September 2005




Place 
          and Date of Judgment:


Vancouver, British Columbia




27 September 2005




Written 
          Submissions Received:


21 and 30 November 2005




Date 
          of Supplementary Judgment


13 January 2006








Supplementary 
          Written Reasons by
:




The 
          Honourable Madam Justice Rowles




Concurred 
          in by:




The 
          Honourable Madam Justice Newbury

The 
          Honourable Madam Justice Levine





Supplementary Reasons of the Honourable Madam Justice 
    Rowles:

[1]

These supplementary reasons concern the entitlement to costs of the 
    Public Guardian and Trustee of British Columbia (PGT) against an unsuccessful 
    applicant on a review application brought under s. 9(6) of the
Court 
    of Appeal Act
where the PGT was not a party to the proceedings in 
    the lower court or this Court.

[2]

By way of background, the Director of Child, Family and Community Services 
    under the
Child, Family and Community Service Act
, R.S.B.C. 
    1996 c. 46 (
CFCSA
), had the child who is the subject of the 
    proceedings removed from the mothers care on 5 March 2004, after a murder 
    charge had been laid against the mother in respect of her husbands death.  
    An interim custody order in favour of the Director was made on 15 April 2004 
    pursuant to s. 35 of the
CFCSA
.

[3]

The Director applied for a twelve-month temporary custody order and 
    for an order appointing the PGT as guardian of the childs estate under s. 
    58 of the
CFCSA
.  Section 58 of the
CFCSA
provides:

58
(1) When a temporary custody order is made 
    or at any time during the term of that order, a director may apply to the 
    court for an order appointing the Public Guardian and Trustee as guardian 
    of the child's estate.

(2) At 
    least 10 days before the date set for hearing the application, notice of the 
    time, date and place of the hearing must be served on

(a) the 
    Public Guardian and Trustee,

(b) the 
    child, if 12 years of age or over, and

(c) the persons who under section 39 are entitled to notice.

(3) The 
    court may appoint the Public Guardian and Trustee as guardian of the child's 
    estate for all or part of the term of the temporary custody order if

(a) a 
    financial or legal interest of the child must be dealt with during the term 
    of the temporary custody order, and

(b) the interests of a parent conflict or may conflict with the child's 
    interests.

(4) The 
    director must provide the Public Guardian and Trustee with a copy of any order 
    made under this section.

[4]

The hearing of the Directors applications had originally been set 
    for 18 January 2005 but had been adjourned when the Director was given to 
    understand from the mothers then counsel that she was going to consent to 
    the orders being made after a pending matter concerning the administration 
    of her late husbands estate had been determined by the Court of Appeal.

[5]

The mother later indicated that she was not going to consent to either 
    order and the hearing was ultimately re-scheduled for 18 March 2005.  On that 
    date, the mother sought an adjournment but Judge Chaperon refused to grant 
    one.  The mother immediately attempted to bring an appeal in the Supreme Court 
    of British Columbia from Judge Chaperons refusal to grant an adjournment 
    but Mr. Justice Wilson refused to abridge the time for her to bring such an 
    appeal.

[6]

On 24 March 2005, the mother filed in this Court a Notice of Application 
    for Leave to Appeal from the order of Wilson J. and had it served on the Director 
    and the PGT.  However, the mother did not bring an application to stay the
CFCSA
proceedings in the Provincial Court pending the determination 
    of the leave application and she did not bring on her leave application in 
    a timely way.

[7]

On 18 March 2005, the Directors applications came on for hearing before 
    Judge Neal.  The hearing continued on April 5, 7, 12-14, and 21 and submissions 
    were made on 26 May 2005.  Other than on the first day, the applicant was 
    represented by counsel throughout the proceedings.

[8]

The PGT appeared on three of the hearing days including the day on 
    which closing submissions were given.  The PGTs participation was limited 
    to supporting the Directors application to have the PGT appointed as the 
    guardian of the childs estate.  The childs father died intestate and his 
    only beneficiaries are his widow (the mother of the child) and the child.  
    The estate consists of interests in real property, including revenue properties, 
    and may have a value of between $800,000 and $1,000,000.

[9]

On 26 May 2005 Judge Neal granted the Director a twelve-month temporary 
    custody order and made an order appointing the PGT as the guardian of the 
    estate of the child.

[10]

The mother has filed a Notice of Appeal from Judge Neals order and 
    served the Notice on the Director and the PGT.  The PGT is not participating 
    in that appeal as none of the issues raised by the mother concerns the order 
    appointing the PGT as the guardian of the childs estate.

[11]

On 28 July 2005, the mother brought an application under Rule 7(3) 
    of the Court of Appeal Rules to extend the time to file materials in support 
    of her application for leave to appeal the order made by Wilson J. on 18 March 
    2005.  The application was opposed by the Director as well as the PGT.  Mr. 
    Justice Hall dismissed the mothers application for an extension of time.

[12]

On 27 September 2005, the mother brought an application under s. 9(6) 
    of the
Court of Appeal Act
to review the order of Hall J.A. 
    dismissing her application.  Counsel for both the Director and the PGT appeared 
    on the application.  The review application was without merit and was dismissed.

[13]

The PGT sought costs against the mother on the review application.  
    The mother and the PGT have filed written submissions on the issue of costs.

[14]

The main thrust of 
    the mothers submissions may be summarized as follows:  (1) no independent 
    application had to be made by the PGT to become the guardian of the estate 
    of the child, instead, it was the Director who had the statutory authority 
    to bring the application for the appointment of the PGT under s. 58 of the
CFCSA
;  (2) there was no necessity for counsel for both the 
    Director and the PGT to appear on the application because the Director could 
    have made any necessary submissions regarding the appointment of the PGT as 
    guardian of the estate of the child, and;  (3) the
Court of Appeal Rules
only allow for costs for parties and the PGT was not a party either in the 
    court below or in this Court.

[15]

The PGT's submissions include the following:

15.       On July 28, 2005, the Honourable Mr. Justice 
    Hall dismissed an application made by the Appellant to extend the time to 
    file materials in support of her application to the Court of Appeal for leave 
    to appeal the Order of Mr. Justice Wilson.  The Respondent [Director] and 
    the PGT appeared before Mr. Justice Hall via their respective counsel to oppose 
    the Appellant's application.  The PGT was particularly concerned about this 
    appeal as the remedy the Appellant was seeking was to have the trial decision 
    of Judge Neal set aside and a new trial ordered without the Court of Appeal 
    having had the opportunity to review or consider what transpired at trial, 
    essentially circumventing the Supreme Court's role in reviewing Judge Neal's 
    decision on appeal.  If the Appellant were eventually successful on this appeal 
    of Mr. Justice Wilson's decision, in the manner she sought, the impact would 
    be more quickly and profoundly felt by the PGT because his appointment as 
    guardian would be set aside.  Again, the impact on the care of the child, 
    and hence the Respondent's role, would not have been as great because [the 
    child] would have remained in foster care pursuant to the interim order pending 
    a new trial.  In fact, it was due to the PGT's position on the application, 
    particularly in light of ongoing events in the litigation over [the fathers] 
    estate, that the Respondent decided also to oppose the Appellant's application 
    before Mr. Justice Hall.  The Respondent was initially inclined to consent 
    to the application and then address this once leave to appeal was sought.

. 
    . .

19.       Concerning the Appellant's appeal of Judge 
    Neal's decision to the Supreme Court of British Columbia, given that the Appellant's 
    grounds for appeal do not touch on the PGT's appointment as guardian of [childs] 
    estate and as this appeal will properly consider what transpired at trial, 
    the PGT has decided to rely on the submissions of the Respondent to address 
    the appeal and, accordingly, will not be appearing at the hearing of the appeal.

[16]

In my opinion, it is doubtful whether the PGT can properly advance 
    a claim for costs on the review application when he was not a party in the 
    proceedings below or in this Court.  The Provincial Court of British Columbia 
    is a statutory court and its jurisdiction is limited to that provided by statute. 
     Section 58 of the
CFCSA
allows the Director to apply to have 
    the PGT appointed as the guardian of the estate of a child, but nothing in 
    the
CFCSA
purports to give the Provincial Court power to make 
    orders with respect to real property that may form part of a childs estate.  
    In view of s. 96 of the
Constitution Act, 1867
, and the decision 
    of the Supreme Court of Canada in
Reference Re. Family Relations Act 
    (B.C.)
, [1982] 1 S.C.R. 62, it is questionable whether the provincial 
    government could do so in any event.  The
CFCSA
does not provide 
    for the PGT to become a party to the proceedings in the Provincial Court and 
    it is not clear what purpose would have been served by his becoming a party 
    in this case.

[17]

The PGT submitted that, in view of the background to the proceedings 
    in the Provincial Court, the controversy and litigation over the administration 
    of the fathers estate and the fact that the mother had not been cooperative 
    regarding an accounting of rentals received from the revenue properties, he 
    was justified in opposing the review application to avoid any interruption 
    in the order appointing him as the guardian of the estate of the child.

[18]

Regardless of whether the PGT has the status as a non-party to make 
    a claim for costs against the mother in relation to her unsuccessful review 
    application in this case, I am of the view that no costs ought to be awarded 
    to the PGT.  It is true that the obligations and responsibilities of the guardian 
    of the estate of a child differ from those of a guardian of the person of 
    a child but it cannot be said that the two roles conflict or that the PGTs 
    concerns could not readily have been advanced by the Director.  That is particularly 
    so in this case where the review application raised very limited issues.

[19]

In the circumstances 
    described, I would order that no costs be awarded to the PGT in respect of 
    the review application.

The Honourable 
    Madam Justice Rowles

I agree:

The Honourable Madam Justice Newbury

I agree:

The Honourable 
    Madam Justice Levine


