



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



B.B. v. British Columbia (Director of Child, Family and Community Services),









2005
            BCCA 46




Date: 20050127




Docket: CA031162

Between:

B.B. and T.B.

Appellants

And

Director of Child, Family and Community Services

Respondent

And

In The Matter Of The Children C.R.
        born December 20, 1991 and R.R. born May 25, 1989

And

In The Matter Of The Child K.B. born
        February 14, 1992









Before:



The
            Honourable Chief Justice Finch





The
            Honourable Madam Justice Huddart





The Honourable Mr. Justice Smith





D.
            O'Donnell



Counsel for the Appellants





K.
            Mundstock



Counsel for the Respondent





Place
            and Date of Hearing:



Vancouver, British Columbia





2 November 2004





Place
            and Date of Judgment:



Vancouver, British Columbia





27 January 2005














Written Reasons by
:





The
            Honourable Madam Justice Huddart





Concurred in by:





The
            Honourable Chief Justice Finch
The Honourable Mr. Justice Smith





Reasons for Judgment of the Honourable
        Madam Justice Huddart:

Introduction

[1]

This
      appeal is about the consequences of the use of a temporary custody order
      made by consent under s. 60 of the
Child, Family and Community Service
      Act
, R.S.B.C. 1996, c. 46 to an application for continuing custody
      under s. 49 of the
Act.

[2]

Section
      60 is used commonly to permit the Ministry of Children and Family Development
      and the Provincial Court to provide services children and their parents
      require, without making a finding that a child is in need of protection.  It
      permits parents and the Director of Child, Family and Community Services
      to plan for the future care of a child without court adjudication of factual
      disputes.  Sections 41(1)(d) and 49(4)(5) permit the Provincial Court
      to make an order of continuing custody in favour of the Director.  Following
      a continuing custody order the child's relationship with his or her parents
      may be terminated and the child may be adopted.  The Director becomes the
      guardian of the person of the child, and the Public Guardian and Trustee
      becomes the guardian of the child's estate.  Section 41(1)(d) applies following
      a finding of a need for protection at a protection hearing.  Section 49(5)
      applies following a period of temporary custody.  These two provisions
      mandate different tests for determining whether a continuing custody order
      can be made.  The ultimate question on this appeal is to determine which
      test applies where the temporary custody order was made by consent, without
      a finding or acknowledgment of a need of protection.

[3]

At
      the root of this case is a mothers inability to cope with the very troubled
      behaviour of her two sons, frequently in conflict with each other.  It
      is not in dispute that the mother loves her sons and does the best she
      can with minimal resources.

[4]

On
      13 December 2002, Judge C.J. Rounthwaite made orders following an extended
      hearing regarding the appellants three children.  On 11 June 2003, Grist
      J. dismissed appeals from all three orders.  While all three of his orders
      were appealed, the parties have settled their dispute over the orders relating
      to R.R. and K.B.  This appeal concerns only the order granting continuing
      custody of C.R., the son of the appellant, T.B., to the Director.  C.R.
      is now 13 years old.

[5]

The
      appellants ask that the order regarding C.R. be set aside, and that a new
      hearing be ordered to determine whether a last chance order under s.
      49(7)(b) is appropriate.  They submit that Rounthwaite P.C.J. erred when
      she applied the test set down in s. 49(5) to determine whether a continuing
      custody order was required for C.R.  In their view, she should have applied
      the test set down in s. 41(2), after she found C.R. in need of protection.

[6]

The
      appellants also expressed the view that the hearing with regard to C.R.
      was overwhelmed by the attention necessarily given to the more serious
      problems of his older brother, but did not suggest that complaint gives
      rise to a question of law.  Rather, they consider these problems distracted
      the trial judge into error.

[7]

In
      his reasons granting leave to appeal, Oppal J.A. wrote this:

The appellants have raised an interesting and
      intriguing legal issue as to the appropriate section for making a continuing
      custody order where there has been neither a protection hearing nor a finding
      that a child is in need of protection but there has been only a temporary
      order made under s. 60. Protection hearings are held under s. 37(1) and
      findings under that section are made under s. 40(1). In this case the trial
      judge made her order under s. 49. Under s-s. (5) of that section a court
      may order that a child be placed in the continuing custody of the Director
      if there is no significant likelihood that:

(a) the circumstances that led to the child's
      removal will improve within a reasonable time; or,

(b) the parent will be able to meet the child's
      needs.

On the other hand s. 41(2) states that following
      a protection hearing a court may not order that a child be placed in the
      continuing custody of the Director
unless:

(a) the identity or location of a parent of the
      child has not been found after a diligent search and is not likely to be
      found;

(b) a parent is unable or unwilling to resume
      custody of the child; or,

(c) the nature and extent of the harm the child
      has suffered or the likelihood that the child will suffer harm is such
      that there is little prospect it would be in the child's best interests
      to be returned to the parent.

The appellants have argued that there is no statutory
      or even logical basis for applying to a continuing care application that
      followed a period of temporary consent custody, the test found in s. 49
      rather than the more stringent test found in s. 41 which is applied to
      continuing care applications in the first instance. It is argued that by
      applying a less stringent test in a situation where a temporary consent
      order has been made is to penalize parents who cooperate with the Director
      in order to act in the child's best interests. As well, it is argued that
      because s. 60 is important for the purposes of case management it is a
      matter of some significance whether the test for continuing care applications
      for after a period [of] temporary custody by consent differs from
a continuing care application in the first instance.

[8]

It
      does not appear Grist J. was asked to address this alleged error.

The Statutory Scheme

1.  Guiding
        Principles

[9]

In
      s. 2 of the
Act,
the Legislature set down the principles
      that must guide consideration of this legal issue:

2
.
This Act
      must be interpreted and administered so that the safety and well-being
      of children are the paramount considerations and in accordance with the
      following principles
:

(a)
      children are entitled to be protected from abuse, neglect and harm or threat
      of harm;

(b)
      a family is the preferred environment for the care and upbringing of children
      and the responsibility for the protection of children rests primarily with
      the parents;

(c)
      if, with available support services, a family can provide a safe and nurturing
      environment for a child, support services should be provided;

(d)
      the child's views should be taken into account when decisions relating
      to a child are made;

(e)
      kinship ties and a child's attachment to the extended family should be
      preserved  if possible;

(f)
      the cultural identity of aboriginal children should be preserved;

(g)
      decisions relating to children should be made and implemented in a timely
      manner.

[10]

Under
      s. 30(1), the Director may remove a child (i.e. take a child into his
      care) if he has reasonable grounds to believe the child needs protection
and
the
      childs health or safety is in immediate danger, or no other less disruptive
      measure that is available is adequate to protect the child.  One such alternative
      measure is a supervision order under s. 29.1.

[11]

Section
      13 lists the non-exhaustive circumstances when a child is deemed to be
      in need of protection.  In
S. (B.) v. British Columbia (Director
      of Child, Family and Community Service)
(1998), 48 B.C.L.R. (3d)
      106 (C.A.), this Court held the provisions of s. 2 can be invoked to ensure
      protection of a child when the precise requirements of s. 13(1) cannot
      be met with sufficient certainty.

2.  Presentation Hearings

[12]

There
      are two stages to a protection proceeding: the presentation hearing (s.
      35) and the protection hearing (ss. 37-40).

[13]

The
      presentation hearing, designed to ensure that a child is not arbitrarily
      taken into care, is to be begun no later than 7 days after the day a child
      is removed (s. 34(1)), to be summary and concluded as soon as possible
      (s. 33.3).  For that hearing, the Director is required to provide a written
      report that includes the circumstances causing the removal of the child,
      an interim plan of care for the child, and information about any less disruptive
      measures he considered before removing the child.  The focus of the hearing
      is on providing appropriate care arrangements for the child until a protection
      hearing can take place.  Both the Director and the parents may call
viva
      voce
evidence, but it must be brief:
British Columbia (Director
      of Child, Family and Community Service) v. R.F
., [1996] B.C.J.
      No. 1979 (S.C.).

[14]

At
      a presentation hearing the practice of the Provincial Court is to resolve
      any conflict in the evidence in favour of the Director and not to make
      any findings of credibility, leaving the resolution of such conflicts to
      the protection hearing, unless the facts the Director seeks to establish
      are manifestly wrong or untrue or unlikely to have occurred:
Re J.(A.)
,
      [1996] B.C.J. No. 2786 (Prov. Ct.),
Re S.(R.A.),
[1996] B.C.J.
      No. 2227 (Prov. Ct.),
Re B.S.(J.)
(19 August 1997), Vancouver
      97-9790 (Prov. Ct.), and
Re M.(S.)
, [1998] B.C.J. No. 2204
      (Prov. Ct.).

3.  Protection Hearings

[15]

Following
      a presentation hearing the court may return the child to a parent apparently
      entitled to custody with or without supervision by the Director or to a
      third person with supervision by the Director, or order the child remain
      in the custody of the Director.  When an interim custody order is made,
      the court must set the earliest possible date for the protection hearing
      (s. 37(1)) unless the interim order was made by consent under s. 60.  In
      either event, the protection hearing must commence no more than 45 days
      after the conclusion of the presentation hearing.  In practice, a protection
      hearing is commenced within 45 days, but the commencement is a mere formality.  The
      substantive hearing may be held months to years later, in part because
      of the minimal court time available for contested protection hearings.  Under
      s. 38(1) of the
Act,
a copy of any plan of care the Director
      intends to present to the court, together with notice of the order he intends
      to request, must be delivered to the parents and the child, if over 12
      years of age, at least 10 days before the protection hearing, unless the
      parent and any other person entitled to notice agree to wait until a later
      date for that information (s. 38(2)).

[16]

The
      first task of the court at a protection hearing is to determine whether
      the child was in need of protection at the date of removal.  If the child
      is not found to be in need of protection, the court will return the child
      to the parent apparently entitled to custody and terminate any interim
      order.  If the child is found in need of protection, the court must consider
      the plan of care presented by the Director and may hear other evidence
      as it considers necessary to determine what order should be made in the
      childs best interests (s. 40).

[17]

The
      disposition options provided by s. 41(1) are that the child be returned
      to or remain with the parents for up to six months or with another willing
      person for from three to 12 months depending on the age of the child, in
      either event under the Directors supervision, or that the child remain
      or be placed in the Directors temporary custody or continuing custody.  Section
      41(2) precludes a continuing custody order being made at a protection hearing
      unless a parent is missing and unlikely to be found or is unable or unwilling
      to resume custody of the child, or

(c) the nature and extent of the harm the child
      has suffered or the likelihood that the child will suffer harm is such
      that there is little prospect it would be in the childs best interests
      to be returned to the parent.

[18]

Upon
      the expiry of an order granting temporary custody to the Director or a
      third person, the child may be returned to the parent under the Directors
      supervision for a period of up to six months (s. 41(1.1)).  Before a temporary
      supervision or custody order expires, the Director may apply for an extension
      to it (s. 44(1)) if he considers the circumstances that caused the child
      to need protection are likely to improve within a reasonable time.  Extension
      orders are also permitted if an application for an extension or for continuing
      custody is adjourned (s. 61).  However, the total period of time a child
      may remain in the Director or a third persons temporary custody depends
      with the childs age (s. 45).  Once it expires, the child must be returned
      to his parents, unless a continuing custody order is made earlier, or a
      court exercises its power under s. 45(1.1) to extend that time limit in
      the childs best interests.

4.  Continuing Custody
        Orders

[19]

The
      Director may apply for a continuing custody order under s. 49(1) not sooner
      than 60 days before a temporary custody order expires.  If a childs parent
      is missing and not likely to be found or is unable or unwilling to resume
      custody the court must make a continuing custody order (s. 49(4)).  Otherwise,
      the court must consider (s. 49(6))

(a) the past conduct of
      the parent towards any child who is or was in the parents care,

(b) the plan of care,
      and

(c) the childs best interests

and conclude
      pursuant to s. 49(5) that

there is no significant likelihood that

(a) the circumstances
      that led to the childs removal will improve within a reasonable time,
      or

(b) the parent will be able to meet the childs
      needs.

[20]

If
      the evidence does not establish one of these criteria, and the court does
      not make a continuing custody order, s. 49(7) provides the mechanism for
      bringing a protection proceeding to an end.  Under that provision, the
      court can order the return of the child to the parent apparently entitled
      to custody or

that the child remain in the temporary
      custody of the director or a person other than the parent for a specified
      period of up to 6 months.

This is the last chance order the
      appellants seek in this case.  At the expiry of that order, s. 49(10) requires
      the court to order the childs return to his or her parents or continuing
      custody in the Director, having regard to the factors in s. 49(6).

Background

[21]

The
      appellants acknowledge that, realistically, they cannot take C.R. home
      now, that he was and continues to be in need of protection, but they say
      the evidence permitted a finding that there was some prospect it would
      be in C.R.s best interests to return to their care after a further six
      months in the Directors custody.  Such a finding at a protection hearing
      would preclude a continuing custody order under s. 41(2).

[22]

Judge
      Rounthwaite applied the less stringent test for continuing custody under
      s. 49(5) by asking herself whether there is a significant likelihood that
      the circumstances which led to the removal will improve within a reasonable
      time, or that the parents will be able to meet the boys needs.  But first,
      because there has been no protection hearing, she determined C.R. had been
      in need of protection on the date the Director removed him from his parents
      care.

[23]

There
      is no provision in the
Act
expressly requiring a court to
      find a child in need of protection before considering a continuing custody
      order under s. 49.  That requirement derives from the construction of the
Act
by
      the Provincial Court.  In
Re S.(J.)
,
1998 WL 1727473
      (B.C. Prov. Ct.), Rae P.C.J. explained how consent orders are used in protection
      matters (at para. 3):

A section 60 consent to an order is
      a new procedure introduced when the new legislation was proclaimed in 1996.
      It provides a means for parents and the Director to agree to a disposition
      with respect to children without the necessity of a court hearing. It is
      a private arrangement between the parents and the Director and can be accomplished
      entirely outside the court process,
although
      it is probably necessary to file the consents required by the section and
      an order saying that the parents have consented to a section 60 order and
      setting out the terms. I say that because it seems to make sense from a
      procedural point of view, but there is no specific direction in the legislation
      to that effect. In the Lower Mainland at least, the practice has developed
      to speak to these matters in court, although I suspect that practice varies
      in other parts of the province where the public does not have daily access
      to a court sitting. Usually the order specifies that the parties agree
      to a s. 41 or a section 49 order by way of section 60. The parties can
      agree to any order in this manner except for a s. 35 order for interim
      custody of the children. Section 60 provides that for example if the parties
      agree to a section 60 order for temporary custody for three months and
      disagree with the Director when they seek an extension order, the parents
      then have the option of going to court to have a judge decide whether an
      extension order is appropriate. The parents have the option of choosing
      to agree to a section 60 consent or to opt back into the court process
      for a hearing at any stage of the process.
What is not at all clear
      in the legislation is whether or not the Director has to justify the original
      removal once the parents have opted back into the court process after initially
      agreeing to a section 60 consent. That justification for the original removal
      is referred to as a section 40 "finding" that the child needs
      protection. The time frame for that "finding" is the date of
      removal.

[Emphasis added.]

[24]

At
      para. 7, Rae P.C.J. held that the parents consent to a temporary order
      does not preclude the need for a finding of protection under s. 40, writing:

As I read section 41 it contemplates
      a hearing and the making of a finding under section 40. The only way to
      avoid this is for the parents to enter into a section 60 consent with respect
      to any subsequent stages of the proceedings. If the parents have agreed
      that the Director have temporary custody of the children pursuant to s.
      60, but disagree with the Directors request for a continuing custody order
      under s. 49, they are entitled to an adjudication as to the reasons for
      the removal. There has in fact never been a protection hearing pursuant
      to s. 41. Had the legislature intended to deny the parents who consent
      pursuant to s. 60 the right to this adjudication they would have done so
      in clear and unmistakable language.
I am satisfied that it is necessary
      to make a section 40 finding before proceeding to a hearing under s. 49.

[
Emphasis added.]

[25]

Counsel
      for the Director does not take issue with the highlighted rule.  Moreover,
      she agrees that the finding under s. 40 must be made from the date the
      children were removed from their parents care.  I agree with both propositions
      and thus, with the approach Rounthwaite P.C.J. took to the Directors application
      for continuing custody of C.R.  This approach has the important advantage
      of providing a baseline for the assessment of a childs needs and parents
      capacities under s. 49, just as it does for one under s. 41.  On applications
      under both sections, the circumstances that led to the childs removal
      are fundamental to the choice of the appropriate order.  It also permits
      the Court to make findings of fact about the parents reasons for consenting
      to a temporary custody order.  Those reasons are likely to be an important
      circumstance to be considered on a continuing custody application.

[26]

Rounthwaite
      P.C.J. first determined whether C.R. was in need of protection on 27 October
      2000, and if he was, why that was so.  On page three of her decision, Rounthwaite
      P.C.J. said this:

The boys were in need of protection at the time of their removal
      in October, 2000, having been emotionally harmed by the parents conduct.  Witnesses
      describe the boys fighting, screaming, being out of control, while the
      parents intervention was inappropriate and harmful, or ineffective.  [R.R.]
      was suspended from school, while [C.R.s] behaviour in running away put
      him at risk.  Both parents were unable to cope, as evidenced by the numerous
      Ministry intakes, the repeated calls to family support worker, and the
      eggnog incident.  Indeed, the parents recognized they were unable to provide
      the children with the help they needed, and subsequently requested a return
      to care.

[27]

No
      dispute is taken with these findings.  The appeal arises from the following
      conclusions that Rounthwaite P.C.J. made on page four:

The evidence equally is clear that
      there is no significant likelihood that the circumstances which led to
      the removal will improve within a reasonable time, or that the parents
      will be able to meet either of the boys needs. To the parents credit,
      they actively sought help for their children, by consenting to the temporary
      custody orders. They have continued to take courses in an effort to improve
      their parenting skills, such as Nurturing Fathers and Families First. Nevertheless,
      the boys special needs require a degree of specialized parenting, intensive
      supervision and consistent structure which is beyond the capacity of the
      parents.  This is clearly evident through the whole of the evidence and
      the expert reports filed.

In making the order for continuing custody, I have considered
      the parents past conduct, the plan of care, and the childrens best interests.
      The parents uncertain plans to move to Alberta with [C.R.] have been made
      without thought for him, his continued need for services and the significant
      relationships he has developed. It was noticeable that while [the mother]
      had checked to ensure the continuation of her own schooling, she had done
      nothing to ensure necessary services for [C.R.].

[28]

The
      appellants submit that the distinction between the test the trial judge
      applied in this case and the test the appellants argue she should have
      applied has assumed greater importance.  In their view, this is so because
      the Provincial Court has interpreted s. 49(5) as placing the onus on parents
      to establish a significant likelihood that the child protection concerns
      will improve within a reasonable time, or that they have made sufficient
      changes to now make it in the childs best interests to return home:
D.P.R.
      (Re)
, [1996] B.C.J. No. 2298 (Prov. Ct.),
British Columbia
      (Director of Child, Family and Community Services) v. K.W.
, [2003]
      B.C.J. No. 767 (Prov. Ct.).

[29]

In
      the appellants view, this understanding of s. 49(5) places an unfair burden
      on parents because the guiding principle of the protection regime is that
      a family is the preferred environment for the care and upbringing of children
      and the responsibility for the protection of children rests primarily with
      the parents.  Thus, they argue that parents may be discouraged from consenting
      to orders that permit the Director to provide help they know their children
      need that they cannot provide.

[30]

Moreover,
      they submit, s. 41 applies whenever a court finds a child needs protection
      under s. 40.  Thus, the Director must meet the little prospect test under
      s. 41(2), whenever a court makes a finding a child is in need of protection,
      whether that finding is made on an application for temporary custody, extension
      of temporary custody, or continuing custody.

[31]

Alternatively,
      the appellants maintain that the trial judge did not fulfil her obligations
      under s. 49(5), even if she was entitled to apply the "no significant
      likelihood" test in preference to the "little prospect" test
      in s. 41(2).  They see nothing in her reasons to suggest she gave serious
      consideration to a last chance order after making her findings as to the
      reasons for the original removal of C.R.

[32]

The
      appellants find error in the reasons of Grist J. because he considered
      the trial judge had only three options: return of C.R. to his parents,
      a further temporary order not to exceed two months, or a continuing care
      order.  In their view, a last chance order could have been made for another
      six months and the decision to order continuing custody could be made only
      if a six months last chance order had no significant likelihood of success.  Had
      Grist J. concluded that a last chance order for six months was an option,
      they submit he would have remitted the matter to the trial judge for a
      new hearing, because she missed or undervalued the evidence that supported
      potential for improvement and the return of C.R. to their care in a reasonable
      period of time.  They acknowledge as understandable his conclusion that
      C.R. could not return to them within two months.

Discussion

[33]

The
      issue we need to decide is whether it was error in principle to apply the "no
      significant likelihood" test to an application under s. 49 that first
      required a finding that C.R. was in need of protection.  I am persuaded
      that Rounthwaite P.C.J. did not err in her interpretation or application
      of s. 49.  I am satisfied that the Provincial Courts established practice
      is that which was intended by the Legislature when it enacted ss. 60 and
      49.  Moreover, I am not persuaded that practice is unfair to parents who
      consent to temporary custody orders because they acknowledge they need
      help in caring for their children.

[34]

This
      Court noted in
J.(L.) v. British Columbia (Director of Child, Family & Community
      Services)
(2000), 78 B.C.L.R. (3d) 233, 2000 BCCA 446 at paras.
      26, 28 and 34 that, despite the unavoidable adversarial quality to protection
      proceedings, the thrust of the
Act
is to provide solutions
      for unsatisfactory home situations including supervisory orders and the
      provision of support services to assist the parents (para. 28).  To that
      end, proceedings must be as flexible and informal as is consistent with
      fairness.  The primary goal is to reach a consensual resolution.  Absent
      such a resolution, a court will be obliged to make the order or orders
      it thinks fit based on the state of the current evidence before it (para.
      26).  The scheme of the
Act
envisages an evolving process
      whereby a court is enabled, on the best evidence currently available, to
      decide what should be done concerning the custody and care of children
      (para. 34).  To like effect is the discussion of Ontarios comparable legislation
      in
Catholic Childrens Aid Society of Metropolitan Toronto v. C.M.
,
      [1994] 2 S.C.R. 165; 113 D.L.R. (4th) 321 at 395
per
LHeureux-Dubé J.

[35]

With
      that understanding of the disposition aspect of a protection proceeding,
      any discussion of onus or burden of proof is misplaced.  This aspect of
      the proceeding should not begin with a general rule that a party will be
      unsuccessful unless he or she satisfies a specific burden of proof.  The
      parties, whether the Director, the parents, or an interested third person,
      all bear the evidentiary burden of demonstrating the most appropriate care
      plan for a child.  Once the Director has established on the balance of
      probabilities that a child is in need of protection and the court has made
      that determination, whether on an application under s. 41 or s. 49, the
      court must assess the evidence before it to determine the appropriate care
      arrangement within the strictures imposed by the
Act
.  Until
      a continuing custody order is made, the duty to determine what care arrangement
      is most appropriate for a child lies with the court, not with the Director
      or the parents, unless they agree.  No general rule should deflect the
      courts attention from the necessary inquiry into the childs needs and
      the parents ability to meet them, with such support as the community is
      able to provide.  As McLachlin J. (as she then was) wrote of an inquiry
      into the best interests of a child directed by the
Divorce Act
,
      so here, the inquiry into the appropriate disposition after a finding a
      child is in need of protection, "should not be undertaken with a mindset
      that defaults in favour of a preordained outcome absent persuasion to the
      contrary:
Gordon v. Goertz
, [1996] 2 S.C.R. 27 at para.
      44.

[36]

As
      for the appellants alternative submission, that Rounthwaite P.C.J. erred
      in her application of the s. 49(5) no significant likelihood test, I
      cannot think of any circumstance where a judge hearing an application for
      a continuing custody order could make a last chance order without also
      finding there was a significant likelihood that the circumstances leading
      to the removal would improve or that the parents would be able to meet
      the childs needs within a reasonable period of time.  The wording of s.
      49(7) reflects that reality.  To delay the inevitable is unlikely ever
      to be in a childs best interests.  If the evidence justified a last chance
      order, it would inevitably preclude a continuing custody order.

[37]

With
      this understanding of protection proceedings, a less stringent test for
      a continuing custody order following a period of temporary custody makes
      good sense and fits well within the child protection regime structured
      by the
Act
.  A s. 41(1) order is made early in protection
      proceedings before parents have been given the opportunity to obtain services
      designed to address the concerns that led to their childs removal.  By
      the time an application for continuing custody under s. 49(5) can be made,
      the parents will have had at least two months in which to address the protection
      concerns, and often a year or more.  It necessarily follows that the court
      will have considerably more evidence from which to determine the childs
      needs and the parents capacity to meet them at the time of removal, any
      changes in those needs and capacity, and the potential for future change.

[38]

Although
      a lack of resources seems to seriously hamper the Provincial Court and
      the Director in their efforts to fulfil the promise of the
Act
,
      the Director asks this Court not to forget that one of the
Act
's
      fundamental premises is that a child is entitled to a decision made and
      implemented in a timely manner.  In the Directors view, a requirement
      that all continuing custody applications following temporary consent custody
      orders be heard under s. 41, would preclude any protection proceeding being
      completed within a reasonable period of time, or within the time frame
      set down by the Legislature, albeit rarely accomplished in practice.

[39]

I
      do not see this as a problem.  First, the requirement for a s. 40 finding
      as a first step in a s. 49 continuing custody application is not a requirement
      for a s. 41 hearing. The need for that disposition hearing is what is obviated
      by the consent order under s. 60.  Second, the overall time limit for temporary
      custody applies whether or not a s. 40 finding has been made.  A court
      can extend the maximum period of temporary custody only in the childs
      best interests (s. 45(1.1)).  No one suggested s. 45 does not apply when
      an initial temporary custody order is made by consent under s. 41(1)(c).

[40]

Such
      a suggestion may be implicit in the reasons of Collings P.C.J. in
Re
      L
(16 June 1999), Vancouver 96-09119 (Prov. Ct.).  When he was
      confronted with the practical difficulty of making a protection finding
      in June 1999 after a consent temporary custody order was made in October
      1997 and extended in 1998, he had no hesitation in treating his protection
      order as though it had been made at the date of the first temporary custody
      order.  He made the protection finding
nunc pro tunc
, and back-dated
      it to 20 October 1997.  He saw that solution as reflecting reality, precluding
      a new 18-month temporary custody ceiling, and encouraging timely decisions.  I
      am of the view that Collings P.C.J. was wrong to imply that the time limitation
      on temporary custody orders does not run from an initial order made by
      consent.  In my view it does, subject to any extension required by the
      childs best interests.

[41]

The
      Director also suggests such a requirement would be a disincentive to the
      use of consents under s. 60.  I cannot accept that the Director would consent
      less often to temporary custody orders for this reason.  Parents would
      be more likely to find the more stringent test for continuing custody an
      attractive inducement to consent.

[42]

I
      do not accept that serious negative consequences would flow from adopting
      the interpretation of the
Act
put forward by the appellants.  Although
      I can understand the benefit to parents of that interpretation, I cannot
      accept it as the right one.  This is because a court may not choose whatever
      meaning it considers would be fairest to parents, but rather, must read
      the words of a statute in their entire context and in their grammatical
      and ordinary sense harmoniously with the scheme of the
Act
,
      the object of the
Act
, and the intention of Parliament:
      E.A. Driedger,
Construction of Statutes
(2nd ed. 1983), at
      87.
In my view, the established practice of the Provincial Court
      exemplified in the reasons of the trial judge in this case reflects the
      correct interpretation of the
Act
.

[43]

I
      would summarize the effect of that interpretation this way. Consent under
      s. 60 to an order of temporary custody under s. 41(1)(c) does not preclude
      the need for a s. 40 finding of need of protection.  It does preclude the
      need for a disposition hearing other than whatever may be required to ensure
      full compliance with s. 60.  The temporary custody order triggers the running
      of time under s. 45 and the right of the Director to seek a continuing
      custody order under s. 49.  On that application, the Director must establish
      on a balance of probabilities the childs need for protection at the date
      of removal, unless that finding has been made on an earlier application
      to extend a temporary custody order (s. 44).  Once the court has made that
      finding under s. 40, it may consider whether to make a continuing custody
      order, and if not, whether to return the child to the parents or to make
      a last chance order.

[44]

I
      accept that Grist J. erred when he said that a last chance order could
      be made for only two months, but there is no suggestion the trial judge
      made that mistake.  Rather, the appellants submit she erred in her application
      of the no significant likelihood test.  In their view, the evidence suggested
      the potential for sufficient improvement for C.R. to return to their care
      within six months, given appropriate support.  The trial judge either ignored
      that evidence, or effectively placed the onus on them to establish a significant
      likelihood, rather than on the Director to establish no significant likelihood
      of improvement in the circumstances that led to C.R.s removal during the
      period of a six-month last chance order.

[45]

As
      I noted earlier, the question of onus or burden of proof in disposition
      proceedings is misplaced.  The question is what the evidence reveals.  No
      significant likelihood of a change in C.R.s needs or the appellants capacity
      within six months or any period of time emerges from the record.  The evidence
      was persuasive that control of C.R.s behaviour was simply beyond the appellants
      emotional and intellectual resources.  The improbability of future improvement
      in their capacity is evident from the history of this proceeding.

[46]

On
      27 October 2000, the Director removed C.R., then eight years of age, and
      R.R., then 11, from the care of the appellants, their mother and step-father.  A
      contested presentation hearing was held on 17 December 2000.  The record
      does not provide any reason for the delay following C.R.s removal two
      months earlier.  Nor does it explain why the presentation hearing was not
      held within the seven days during which the Director "must attend
      the court for a presentation hearing as required by s. 34(1).  The parents
      co-operative attitude throughout this proceeding suggests they did not
      object to the delay because C.R. was receiving the help he needed.

[47]

Following
      the presentation hearing, Rounthwaite P.C.J. returned the children to the
      appellants under the Directors supervision pending the commencement of
      a protection hearing set for 1 February 2001.  At the formal commencement
      of the protection hearing that day, the parents and the Director consented
      to an order under ss. 60 and 41 of the
Act
, that C.R. remain
      in the care of the Director until 28 June 2001.  On 21 June 2001, they
      consented to an extension of temporary custody until 21 October 2001.  Throughout
      this time, the plan (of both the parents and the Director) was that C.R.
      would return to his parents care.  The parents saw the consent orders
      as being in C.R.s best interest, because temporary custody permitted him
      to receive specialized care he would otherwise have been unable to access.

[48]

Clearly,
      no one anticipated the issues regarding C.R.s care were going to be resolved
      quickly.  That proved to be true.  Three days after he applied for a continuing
      custody order under s. 49, the Director filed a Court Plan of Care, to
      be reviewed in May 2002.  From the record, it appears the next step in
      the protection proceeding took place on 11 October 2001, when Hay P.C.J.
      ordered that a case conference be held on 19 October 2001.  On 28 November
      2001, Rounthwaite P.C.J. ordered the parties to attend a pre-trial conference
      on 10 April 2002 and that the protection hearing continue on 29 May 2002.

[49]

By
      the time the first witness was called on 11 July 2002, C.R. had been in
      the Directors care for almost 18 months, the maximum period of temporary
      custody allowed in his case by s. 45.  During the ongoing proceeding, Rounthwaite
      P.C.J. made orders under s. 45(1.1) on 21 August 2002 and 4 November 2002
      extending that period.

[50]

We
      are advised such delays are not uncommon in protection cases, and are one
      consequence of family cases being heard at Chilliwack only two days each
      month, during which time the Provincial Court is asked to deal with all
      matters under the
Family Relations Act
, R.S.B.C. 1996 c.
      128 as well as protection cases.  Fortunately, for all that time C.R. was
      placed with the same specialized foster care giver.  That delay might have
      benefited the appellants, had they been able to martial their resources
      and develop the capacity to help their son, or had C.R. made sufficient
      improvement with that care to return to the care of the appellants.  Neither
      happened.

[51]

The
      hearing of the Directors application took place over six days between
      11 July and 4 November 2002.  The appellants told Rounthwaite P.C.J. that
      they were moving to Alberta where Mr. B. had a prospect of employment.  They
      wanted C.R. returned to their custody at the end of the school year or,
      alternatively, a "last chance order" under s. 49(7) with a transfer
      of C.R. to the Ministry of Childrens Services in Alberta.  They understood
      that R.R. needed to stay in care and that it was in the best interests
      of Mr. B.s daughter (the subject of the third order of Rounthwaite P.C.J.)
      to be adopted, but disagreed with the Director about the nature and extent
      of their continuing role in the lives of these two children.  As I noted
      earlier, they have been able to reach an agreement with the Director about
      the continuing care of R.R. and K.B.  They have also decided to remain
      in British Columbia permanently.

[52]

Rounthwaite
      P.C.J. granted the Directors application for continuing custody of C.R.
      on 13 December 2002.  By then, C.R. had been in his temporary custody for
      almost two years.  The appellants acknowledge they were not then in a position
      to take C.R. home, and that to do so would not have been in his best interest
      at that time.  They understand that he needed care they could not then
      provide.  Two more years have passed.  There is no evidence anything has
      changed beyond a passing mention during submissions that C.R. is no longer
      in the same foster home.

[53]

It
      is not in dispute that C.R. has special needs and requires expert care.  He
      has a chronic traumatic stress disorder, exhibits aggressive behaviour
      to both children and animals, and has been described by a teacher as "very
      troubled".  Like his older brother, he has been damaged and is said
      to be "out of control".  Rounthwaite P.C.J. found that both boys
      were emotionally harmed by their parents.

[54]

Grist J. upheld the order on appeal to the Supreme Court under s.
      81(1) of the
Act
.  In doing so, he was guided by the principles
      discussed by LHeureux-Dubé J. in
C. (G.C.) v. New Brunswick (Minister
      of Social Services),
[1988] 1 S.C.R. 1073 at para. 5 (affirmed
      in
New Brunswick (Minister of Health and Community Services) v. M.L.
,
      [1998] 2 S.C.R. 534 at para. 35):

trial judges decisions,
      particularly in matters of family law, should not be interfered with lightly
      by appellate courts absent an error in principle, a failure to consider
      all relevant factors, a consideration of an irrelevant factor or a lack
      of factual support for the judgment

[55]

So
      must we be.  Having found no error in principle in Rounthwaite P.C.J.s
      reasons, like Grist J., I can find nothing in the record to persuade me
      to interfere with her decision.  The evidence fully supports her order
      granting continuing custody of C.R. to the Director.

It follows I would dismiss
      the appeal.

The Honourable
      Madam Justice Huddart

I agree:

The Honourable Chief Justice Finch

I agree:

The Honourable
      Mr. Justice Smith


