2023 BCPC 154

Citation: ☼ Director v. M.G.N. and M.D.J., J.M.S., and M.J.
2023 BCPC 154

Date: ☼20230705
File No: F43082
Registry: Surrey
2023 BCPC 154 (CanLII)

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
IN THE MATTER OF
THE CHILD FAMILY AND COMMUNITY SERVICE ACT, R.S.B.C. 1996 c. 46
AND THE CHILD:
M.J.N., born [omitted for publication]
BETWEEN:
DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE
APPLICANT
AND:
M.G.N.
PARENT
AND:
M.D.J.
PARENT
File No: F43767

Registry: Surrey
AND IN THE MATTER OF

THE FAMILY RELATIONS ACT, R.S.B.C. 1996 c. 128
BETWEEN:
J.M.S.
APPLICANT
AND:
M.J. and M.N.
RESPONDENTS

RULING
OF THE
HONOURABLE JUDGE K.J. FERRISS
Counsel for the Director: K.L. Diehl

Counsel for the Parent: C. Cheng
Counsel for the Applicant: N. Kulusic
Counsel for the Respondent: C. Cheng
Place of Hearing: Surrey, B.C.
Date of Hearing: January 5 and April 27, 2023
Date of Judgment: July 5, 2023
Director v. M.G.N. and M.D.J., J.M.S. and M.J. Page 1
[1] This application involves M.J.N., who is [omitted for publication] years old. He
was born to M.G.N. and M.D.J. on [omitted for publication]. M.J.N. is Métis. The Director
has been involved in MJ.N.’s life since he was born. The Director has already obtained
a temporary custody order under the Child, Family, and Community Services Act

(“CFCSA”) and is applying for a continuing custody order (“CCO”).
[2] J.M.S.’s sole relationship to M.J.N. is as his former foster mother. She has
applied under the Family Law Act (“FLA”) for an order adding her as a guardian,
terminating the parents’ guardianship, and granting her all parental responsibilities and
parenting time. J.M.S. is also Métis.
[3] The issue I must determine is whether J.M.S., as M.J.N.’s former foster mother,
has standing to bring her application under the FLA, given her role as M.J.N.’s former
foster mother. While the decision I am being asked to make is purely procedural, I will
provide some background. To be clear, I am not deciding J.M.S.’s application, only
whether she has standing to make that application given her former role as M.J.N.’s
foster mother.
Position of the Parties
[4] The Director’s position is that J.M.S. does not or should not have standing under
the FLA. The Director intends to proceed with her application for a CCO, and that trial is
scheduled for October of this year.
[5] The Métis Commission has signed a Written Consent in Form 11 and they are in
agreement with the Director’s CCO application.
[6] M.D.J., the father, has not seen M.J.N. since August 2021 and he was not
present throughout this application. He has not made his view of J.M.S.’s or the
Director’s applications known.
[7] M.G.N., the mother, is opposed to the CCO application and J.M.S.’s application.
However, no submissions were made on her behalf with respect to this ruling.
Proceedings in Provincial Court under the CFCSA and FLA

[8] The Director filed a Report to Court on February 12, 2020 which sets out the
reasons M.J.N. was removed from his parents.
[9] After M.J.N. was born, M.G.N. left the hospital, indicating that she did not want to
parent or have any contact with M.J.N. At first, M.D.J. tried to be involved with M.J.N.

[10] On April 8, 2019, when M.J.N. was discharged from the hospital, M.D.J. was
homeless and there were no other family members who could assist with parenting. As
a result, M.D.J. entered into a three-month Voluntary Care Agreement (“VCA”) with the
Director commencing April 8, 2019, with the hope that M.D.J. would develop his
attachment with M.J.N. and secure housing. On April 10, 2019, the Director placed
M.J.N. with J.M.S., who was an approved foster home.
[11] The VCA was extended twice, for a total of nine months. However, M.D.J. was
unsuccessful in securing housing and he did not follow through with services. As a
result, M.J.N. was removed by the Director on February 5, 2020, when he was [omitted
for publication] old.
[12] An interim order was made on February 26, 2020 placing M.J.N. in the interim
custody of the Director under s. 35(2)(a) of the CFCSA.
[13] On June 3, 2020, an order was made finding that M.J.N. was in need of
protection pursuant to s. 40 of the CFCSA and making a temporary custody order to the
Director for three months pursuant to s. 41(1)(c) (the “TCO”). The parents were not
present at the court hearing, but an order was made that they could have access to
M.J.N. at the discretion of the Director.
[14] On September 16, 2020, an Order was made extending the TCO for a period of
three months pursuant to s. 44(3)(b). The TCO was further extended another three
months on December 16, 2020.
[15] On March 25, 2021, both M.G.N. and M.D.J. appeared at court and agreed to a
further extension of the TCO for a further three months.
[16] On June 24, 2021, M.D.J. appeared and agreed to extend the TCO for another
three months, expiring on September 24, 2021. The total period of time that M.J.N.
could remain in the temporary custody of the Director under s. 45(1.1) of the CFCSA
was extended until December 31, 2021.

[17] On September 22, 2021, the Director filed an Application for an order extending
the TCO for a further three months. The matter was adjourned several times in court
without the parents attending. On December 16, 2021, an order was made for alternate
service on both parents by emailing M.D.J.
[18] On December 8, 2021, J.M.S. filed a Notice to Resolve a Family Law Matter
under the FLA asking for guardianship of M.J.N.
[19] On December 21, 2021, the Director filed the CCO Application and an
Application for a further extension of the total period of time that M.J.N. could remain in
the temporary custody of the director under s. 45(1.1).
[20] The Director’s Court Plan of Care was filed with the CCO Application. It states
that the “overall goal is for [M.J.N.] . . . to remain in the continuing custody of the
Director while permanency plans continue to be explored, including adoption.” The plan
was to allow access to M.D.J. and other family members if it were in M.J.N.’s best
interests.
[21] On December 23, 2021, an Order was made under s. 45(1.1) extending the time
that M.J.N. could remain in the Director’s temporary care until the conclusion of the
CCO Application. The parents were not present for that court appearance, nor were
they present for the January 27, February 17, March 17, March 31, May 5, October 27,
November 3, 7, 17, or December 16, 2022 court appearances. No lawyers or agents
appeared on their behalf either.
[22] The Director changed M.J.N.’s foster home on October 27, 2021 and he is now
placed in a non-Indigenous foster home. He has been in the Director’s care for over 3.5
years.
[23] On December 22, 2021, J.M.S. filed another Notice to Resolve under the FLA
asking for contact with M.J.N.
[24] On March 13, 2022, J.M.S. filed both her Application about a Family Law Matter
and her Guardianship Affidavit.

[25] On March 17, 2022, Judge Solomon ordered that the CFCSA file (Court File No.
F43082) and the FLA file (Court File No. F43767) be heard together. The Director did
not dispute that order at the time it was made.
[26] On March 31, 2022, the trial was scheduled for five days in December 2022.
[27] The Director raised the issue of J.M.S.’s standing at the Pre-Trial Conference on
November 4, 2022 before me. I adjourned the matter to November 7 and then
November 17, 2022. On November 17, 2022, it was clear that the issue of standing
could not be dealt with before trial in December and so the trial dates were cancelled.
[28] By January 5, 2023, the mother M.J.N. had obtained counsel, Ms. Cheng. Ms.
Cheng has appeared for M.J.N. for all court appearances in 2023. The father has not
retained counsel nor appeared on any court dates this year.
The Supreme Court Proceedings
[29] J.M.S. had both M.J.N. and another foster child placed in her care by the
Director. On August 18, 2021, she filed a Petition in the Supreme Court of British
Columbia in which she sought interim relief pending the outcome of her petition to adopt
the two children. J.M.S. was granted an order restraining the Director of Child, Family
and Community Services and the Director of Adoptions from removing the children from
her care. Justice Francis, on October 27, 2021, adjourned J.M.S.’s petition generally
due to lack of service on M.D.J., whom she found to have remained as M.J.N.’s
guardian: J.M.S. v. British Columbia (Director of Child, Family and Community
Services), 2021 BCSC 2104.
Relevant Legislation
[30] In s. 1 of the CFCSA, a “parent” includes:
a) a person to whom guardianship or custody has been granted by a

court of competent jurisdiction or by an agreement, and
b) a person with whom a child resides and who stands in place of the

child’s parent or guardian,
but does not include a caregiver or director . . .
[31] A “caregiver” is defined as:
... a person with whom a child is placed by a director and who, by

agreement with the director, is authorized to carry out the rights and
responsibilities, under the agreement, of the director;
While the CFCSA uses the term “caregiver”, I will use the more colloquial term of
“foster parent” throughout this decision.
[32] Section 2 lists the CFCSA’s guiding principles as follows:
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;
(b1) Indigenous families and Indigenous communities share responsibility
for the upbringing and well-being of Indigenous children;
(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) Indigenous children are entitled to
i. learn about and practise their Indigenous traditions, customs
and languages, and
ii. belong to their Indigenous communities;
(g) decisions relating to children should be made and implemented in a

timely manner.
[Emphasis added]
[33] The relevant sections of the FLA that deal with J.M.S.’s application are as

follows:
51 (1) On application, a court may

(a) appoint a person as a child's guardian, or
(b) except in the case of a director who is a child's guardian
under the Adoption Act or the Child, Family and Community
Service Act, terminate a person's guardianship of a child.
(2) An applicant under subsection (1) (a) of this section must provide
evidence to the court, in accordance with the Supreme Court Family Rules
or the Provincial Court Family Rules, respecting the best interests of the
child as described in section 37 [best interests of child] of this Act.
(3) Subsection (2) of this section applies regardless of whether there is
consent to the application under section 219 [persons may consent to
order being made].
(4) If a child is 12 years of age or older, a court must not appoint a person
other than a parent as the child's guardian without the child's written
approval, unless satisfied that the appointment is in the best interests of
the child.
(5) A person who has custody of a child under section 54.01 (5) or 54.1 of
the Child, Family and Community Service Act is deemed, for the purposes
of this Act, to be a guardian appointed under subsection (1) of this section.
....
39 (1) While a child's parents are living together and after the child's
parents separate, each parent of the child is the child's guardian.
(2) Despite subsection (1), an agreement or order made after separation
or when the parents are about to separate may provide that a parent is not
the child's guardian.
(3) A parent who has never resided with his or her child is not the child's
guardian unless one of the following applies:
(a)section 30 [parentage if other arrangement] applies and
the person is a parent under that section;
(b)the parent and all of the child's guardians make an
agreement providing that the parent is also a guardian;
(c)the parent regularly cares for the child.
(4) If a child's guardian and a person who is not the child's guardian marry
or enter into a marriage-like relationship, the person does not become a
guardian of that child by reason only of the marriage or marriage-like
relationship.
[34] Nothing in s. 51 limits who can apply to be a guardian and I note that, while s. 51

of the FRA refers to the CFCSA, there is no limit placed on the foster parents’ standing
to apply to be guardians.
Case Law
[35] After a child is removed under the CFCSA, there are generally three stages of
the proceedings:
1. the presentation hearing or interim stage,

2. the protection hearing or temporary order stage, and
3. the permanent stage.
[36] There is substantial case law pertaining to the standing of foster parents in their
applications for guardianship at both the interim and permanent stages of the CFCSA.
The law is relatively well settled and I will first review the cases relating to the interim
and permanent stages
[37] The Director provided the following case law:
1. P.(E.) v. B.C. (Supt. Of Fam. & Child Service), 1988 CanLII 2985 (BCCA);
[1988] B.C.J. No. 245, (also known as Perteet v. British Columbia Superintendent
of Family and Child Service)
2. R.L. and T.L. v. Children’s Aid Society of the Niagara Region, 34 R.F.L. (5th)
44, 167 O.A.C. 105 (C.A.); 2002 CanLII 41858 (ON CA)
3. L.S. and S.S. v. The Ministry of Children and Family Development et al.,
2003 BCSC 428
4. C.K. v. The Director, Ministry of Children and Family Development and
British Columbia (Attorney-General), 2003 BCSC 785
5. The Director of Child, Family and Community Service v. K., 2003 BCSC 742
6. K. v. HMTQ (BC) & Others, 2003 BCSC 1248
7. Director v. M.L., 2005 BCPC 77
8. N.K. v. British Columbia (Director, CFCSA), 2008 BCSC 1321

9. L.M. v. British Columbia (Director of Child, Family and Community
Services), 2015 BCSC 2261
10. W.N. v. C.G., 2012 BCCA 149
11. L.M. v. British Columbia (Director of Child, Family and Community

Services, 2016 BCSC 275
[38] J.M.S. provided the following cases:
1. W.(C.K.), 2002 YKTC 3
2. L.J.G. v. N.B., 2017 BCSC 350
3. J.M.D.C. v. D.I.D.C., 2019 BCSC 172
4. CFCSA and The Child E.S.I., 2003 BCPC 274
5. Director v. L.W.C., B.C. and K.F., 2016 BCPC 311.
[39] She also relies on The Director of Child, Family and Community Service v. K.
and W.N. v. C.G.
[40] While I have reviewed all of the case law, I will refer to those cases that I found
most persuasive.
Interim Stage - Legislation
[41] Under s. 32 of the CFCSA, if a child is removed by the Director under ss. 30, 36
or 42, the Director has care of the child until an interim order is made or the child is
returned or the Director withdraws. While the child is in the Director’s care, the Director
may authorize a health care provider to examine the child and consent to necessary
health care. The Director may also consent to the child’s participation in routine school,
social, or recreational activities. However, persons who were guardians of the child prior
to removal maintain their guardianship status.
[42] Under s. 47 of the CFCSA, once an interim or temporary order is made, if the
child is placed in the custody of the Director, the Director has the following rights and
responsibilities subject to any court order:
a. to consent to health care for the child;

b. to make necessary decisions about the child's education and religious
upbringing;
c. to exercise any other rights and to carry out any other responsibilities of a
personal guardian of the child, except the right to consent to the child's adoption.
[43] “Custody” under the CFCSA is defined in s. 1 of the Act to include care and
guardianship of a child. The Court can, however, make an order that a parent retain the
right to consent to health care or make necessary decisions about the child’s education
and religious upbringing. The persons who were guardians prior to the order being
made maintain their status as guardians.
Interim Stage – Case Law
[44] Judge Raven, in an unreported decision, Director of Child, Family and

Community Service v. B. and D. (12 July 2002), Surrey Registry F19412 and F18182
(B.C. Provincial Court) considered the interplay between the CFCSA and an application
for custody made under the Family Relations Act (“FRA”), the legislation that preceded
the FLA. The FRA used the words “custody” and “access” rather than “parenting time”.
[45] An interim order under the CFCSA had been made by consent placing the child
in the interim custody of the Director and the Director had subsequently filed an
application for an immediate CCO under s. 41(1)(d) of the CFCSA, bypassing the need
for a temporary order. There had not been a finding that the child was in need of
protection under s. 40 of the CFCSA and the child was still in the interim custody of the
Director.
[46] The father’s application under the FRA for custody was filed two months after the
Director’s application for a CCO and both the father’s FRA application and the Director’s
CCO application were ordered to be heard together.
[47] The Director in that case did not oppose the father’s application for custody and
indicated that, if he were to be granted custody of the child, the Director would no longer
have any child protection concerns. In fact, the Director had already placed the child
with the father against the wishes of the mother.

[48] The mother was contesting the grounds for the removal. She did not believe it
was in the child’s best interests to remain in the father’s custody. She wanted the child
to either be returned to her care, or put in foster care in Saskatchewan where she lived
so that she could see the child and work towards a return of the child.
[49] Judge Raven noted that s. 41(2) of the CFCSA restricts the circumstances under
which the court can order an immediate continuing custody order:
(2)The court must not order under subsection (1) (d) that the 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.
[50] Judge Raven found that the test the Director needed to meet under s. 41(2) of
the CFCSA was more onerous than the test imposed on an applicant for custody under
the FRA, which, like the current FLA was to prove on a balance of probabilities that
such an order was in the child’s best interests. She found that the father would not have
applied for custody if the Director had not removed the child.
[51] Judge Raven summarizes the prevailing case law at paragraph 21:
Where there is an outstanding C.F.C.S.A. application, any F.R.A. order is

in “cold storage” pending the outcome of the protection proceedings. R. S.
(P.F.), [11 February 1998, Vancouver 967974, 9507289]. [1998 Fam. L.D.
998 B.C. Prov. Ct.]. It is up to the trial Judge to determine the procedure
for hearing conflicting applications where C.F.C.S.A. and F.R.A.
applications are joined for hearing. Re Mirasty (sub nom M. (R.) v. C.

(B.A.), 15 D.L.R. (4th) 48; British Columbia (Director of Family and Child
Services) v. M.K. 2000 BCPC.
[52] At paragraph 23, Judge Raven states:

It is unfair to a parent from whom a child is removed to defend herself
against a subsequent custody application pursuant to the F.R.A. before it
is determined by the Court whether the child is in need of protection.
British Columbia (Director of Child, Family and Community Service) v.
A.N.G. (10 December 1996), Vancouver 968998 (B.C. Prov. Ct.) The
intent of the C.F.C.S.A. is to remove children who are in need of protection
from unfit parents, to provide intervention strategies to assist those
parents to improve their circumstances and to return their children to their
care. If that is not possible then the Director has a duty to determine if
there are other persons who are fit to care for the child as an alternative to
placing the child in the Director’s continuing custody. The Director is not
entitled to remove a child and avoid its obligation to prove its case against
the parent apparently entitled to custody pursuant to the C.F.C.S.A. by
supporting the application subsequently filed by a person pursuant to the
F.R.A. To find otherwise, would dilute the legal onus placed on the
Director in the C.F.C.S.A. and substitute therefore the test set out in the
F.R.A. For these reasons I find the Director must first prove its case
against Ms. D. pursuant to the C.F.C.S.A. before I decide the F.R.A.
application.
[53] Judge Raven went on to find that the child was in need of protection under s. 40
of the CFCSA, but found that the Director had not met its onus under s. 41(1) and she
had concerns regarding the father’s lifestyle. She made a three month temporary order
under s. 49(7)(b) of the CFCSA and adjourned the father’s FRA application for a period
of three months.
[54] Since that decision was made, the FLA replaced the FRA in 2013. Under the
FRA, both parents were joint guardians for so long as they lived together. After
separation, unless there was an order or agreement to the contrary, the parent who
usually had care and control of the child was the sole guardian of the person of the
child.
[55] The provisions of the FLA provide that separation of the parents does not change
their guardianship status in relation to their child and parents are generally the
guardians. The term “custody” is no longer used and has been replaced with “parenting
time” and “parental responsibilities”.
[56] The CFCSA continues to use the term “the parent apparently entitled to custody
of the child”. Before the FLA was introduced, that term was used to describe the parent

who had primary residency of the child. Judge Frame in Director and L. et al, 2014
BCPC 284, found that the father, who did not have primary residency at the time of the
removal, was a parent apparently entitled to custody because there was a previous
order where the parents were granted joint custody and joint guardianship of the
children. She cited the provisions of the FLA in support of her decision.
[57] In my view, the status of any person who is not a guardian to make an
application for guardianship and “return” of a child from the Director at the interim stage
of CFCSA proceedings is settled. The application should not proceed until after the
court finds that the child was in need of protection. The L. decision allows a guardian,
who did not have primary residency of the child at the time of the removal, to be
considered a “parent apparently entitled to custody”.
The Permanent Stage - Legislation
[58] The law with respect to FLA guardianship applications made by any person once
a CCO has been made is also settled.
[59] Section 50 sets out the effect of a continuing custody order. The Director
becomes the sole personal guardian of the child and may consent to the child’s
adoption. The Public Guardian and Trustee becomes the sole property guardian of the
child. Any guardianship orders under the FLA are no longer of any effect.
The Permanent Stage – Case Law
[60] The case law is clear that once the Director has obtained a CCO, foster parents
have few rights regarding the child in their care. For instance, they have no right to
petition for adoption unless the Director consents to that adoption; they have no
standing to apply to set aside a CCO under s. 54 of the CFCSA; and they have no
standing to ask the court to return a child to them if the Director decides to move the
child to another foster home.
[61] I intend to provide a review of the cases where foster parents have made
applications against the Ministry after a CCO has been made in chronological order.

Many of the decisions comment on the role of foster parents and concerns with
permitting foster parents to apply for guardianship or custody and those comments are
important.
[62] In the B.C. Court of Appeal decision of P.(E.) v. B.C. (Supt. Of Fam. & Child
Service), often referred to as the Perteet decision, the Director appealed a decision
granting the child’s former foster parents standing to bring an application for adoption or
custody of the child. The sole issue was whether the foster parents had status to bring
that application when a permanent order (now a CCO) had been made in favour of the
Superintendent (now referred to as the Director) already. The foster parents relied on
the parens patriae jurisdiction of the Supreme Court.
[63] At the time of the decision, the existing legislation was the Family and Child
Service Act, RSBC 1979, c. 11 (the “FCSA”), and the provincial family legislation was
the FRA.
[64] The Court of Appeal stated that the FCSA was “an exclusive and comprehensive
code relating to the care and custody of children in need of protection” [para. 12]. The
Court also noted that foster parents were not included in the definition of “parent” under
the FCSA. The court referred to s. 3(2) of the FCSA which gave the Superintendent the
ability to "contract with foster parents for the custody of a child over whom the
Superintendent had guardianship” [para. 16].
[65] The Court reviewed the provisions of the FCSA as a whole, finding it was
necessary to do so to determine the impact of the Court’s decision on the litigation.
[66] The Court found that:

1. Because the foster parents were never guardians of the child, they had no
standing under s. 21 of the FCSA to apply to set aside a permanent order and
“resume guardianship” [para. 22].
2. The Director had the right to remove a child from the care of the foster parents.
That right would be rendered ineffective if the foster parents could petition the
Supreme Court to rescind the permanent order and return the child to them. The

foster parents would be asking the Court, rather than the Superintendent, to
determine the child’s best interests [paragraph 23].
3. Once a permanent order was made, the Superintendent had the right to consent
to an adoption, a right that would be rendered ineffective if the foster parents had
recourse to Supreme Court to rescind the permanent order. It would also
increase uncertainty and make the adoption process subject to a s. 21 inquiry.
4. If the foster parents were given standing to set aside a permanent order and a s.
21 inquiry had to be held, it would result in delay and expense. The Court said:
[25]. . . . one must have regard to the expense and delays which would
result from custody hearings of the nature envisaged by s. 21. In order for
the Supreme Court to determine the issue as to whether it is satisfied that
a permanent order should be rescinded under s. 21, it would be necessary
in the "child's best interest" to hear extensive viva voce testimony from all
interested parties. The new foster parents or the adopting parents would
have to be represented. In the meantime the "child" would remain in limbo.
In my opinion, the legislature in the "best interests" of the child purposely
sought in the case of foster parents to avoid uncertainty, delay and
expense by giving the superintendent the statutory power, as the sole
guardian of the child, to determine all matters relating to care and custody
of the child, including adoption. It is not for the courts to thwart the
legislative will by giving s. 21 such an extended meaning as to render the
statutory scheme unworkable. The "best interests" of the child will in the
case of permanent wards be served by requiring the superintendent to act
solely within the ambit of the legislative mandate and to act "in good faith
and not capriciously".
[67] The Court found that foster parents had no status to apply to rescind a
permanent order under the FCSA nor did they have the standing to apply for custody or
access to a child after a permanent order was made in the Superintendent’s favour. At
paragraph 43 the Court stated that:
. . . .the legislature clearly intended that the superintendent should

determine "the best interests" of the child. Even if the court was of the
opinion that the superintendent should not have that power, it cannot be
contended that a legislative gap exists.
[68] In R.L. and T.L. v. Children’s Aid Society of the Niagara Region, is a decision
of the Ontario Court of Appeal with respect to Ontario’s legislation. The Ontario child
protection legislation is somewhat different than that of British Columbia. The system is
similar to British Columbia’s in that the social worker must first work with the parent that

the child was removed from, with a view to returning the child. If that is not possible, the
social worker is then to look to members of the child’s extended family to see if the child
can be placed with one of them. The Court states at paragraph 9 that:
. . . . The Act does not envisage a contest between members of a child’s

family and a foster parent at a hearing to declare whether the child should
be declared to be a society or Crown ward.
[69] And at paragraph 11:
The Act also envisages that a foster parent may wish to adopt a child.
[70] With respect to foster parents, the court noted that:
[38]. . . foster parents are meant to provide temporary care for children
pending their return to their family or transfer to a more permanent
placement. They are not intended to provide a comparative basis for the
determination of the child’s best interests from the outset. A best interests
comparison between the foster home and the original family at this stage
would run contrary to the entire scheme of state intervention in cases
where there is reason to believe that a child is in need of protection. As
Nasmith J. aptly put it in Children’s Aid Society of Metropolitan Toronto v.
S.(D.), 1991 CanLII 4537 (ON CJ), [1991] O.J. No. 1384 (Prov. Div. Ct.):
There is no logic in the notion that there can be a ‘best interests’
comparison of two placements in the sense of determining which of two
placements is ‘better’ and at the same time accommodating the legal
priorities given to the family at the initial stages. … Once the family
placement has been deemed inadequate, then, and only then, do
temporary foster placements open up for comparison.
…
If comparisons between foster parents and original families were
legitimate from the outset, it would be tantamount to declaring open
season on each and every child who was moved, however temporarily,
into a foster home. When could it not be said that there was an attachment
between a foster parent and a child and that moving the child back to the
family would break the attachment. When could it not be said that the
foster home had advantages over the original home. It would be ironic if
foster homes were being chosen where the foster parents were so casual
that there was no attachment or where the resources were no better than
the family that was being assisted.
[71] At paragraph 41 the court continues:

[41] In this case, the appellants are known as “risk foster parents”. As
noted by the applications judge, this designation applies to foster parents
who have expressed an interest in adopting a foster child who has been
placed with them if that foster child is made a Crown ward. There is an
inherent risk in such situations that the duration of foster parenting may be
more than just temporary and that strong attachments would be formed.
However, the special role that foster parents may end up playing in the
children’s lives by reason of these circumstances does not alter their
status under the Act. The foster home is not intended to provide a
comparative basis in the assessment of the plans of care, if any, that are
presented by family members for consideration by the court at this stage
of the proceedings.
[72] In L.S. and S.S. v. The Ministry of Children and Family Development et al.,
2003 BCSC 429, the child was in the Director’s care under a CCO. The foster parents
petitioned the Supreme Court for an order, among other things, that would ensure the
Director could not unilaterally terminate the foster parent agreement. They sought
review of the child’s care under s. 70(1)(a) of the CFCSA, which provides that children
in care have certain rights.
[73] The foster parents in the L.S. and S.S. case relied on the decision in British
Columbia (Director of Family and Child Services) v. P.K. and T.K., 2002 BCSC
1762 which seemed to move away from the decision in Perteet at para. 53:
[53] Clearly the present Act cannot be seen as intended to delegate

unfettered power to the Director to determine all matters relating to the
care and custody of children in care, as the FCSA was perceived by the
Court of Appeal in Perteet.
[74] However, the court in L.S. and S.S. found that s. 70 of the CFCSA did not
provide a basis for foster parents to ask the Court to review the Director’s care. The
Court in L.S. and S.S. went on to say:
[19] The current legislation may not be intended to delegate unfettered

power to the Director in respect of all matters relating to the care and
custody of wards. Foster parents may now apply for access where the
Director has not seen fit to grant it, and they may have other rights that
were not recognized before the current Act was passed. However, that
does not mean that the Act gives to foster parents a standing to petition in

their own names more broadly for a review of the Director’s decisions
pertaining to what is in a child’s best interest. They simply have no
standing to do that. If it were otherwise, virtually every decision taken by
the Director that bore upon the best interests of a child in care could be
challenged through court application by a party to a foster home
agreement or, it would seem, by any other person.
[75] At paragraph 21, the Court found that:
[21] In my view, the underlying reasoning in Perteet remains applicable.

The current legislation is, like its predecessor, an exclusive,
comprehensive code that vests in the Director the determination of what is
in the best interests of children in his care save where provision may be
expressly made for the exercise of that discretion to be questioned. In
saying that, I recognize that because the rights of a child are enforced
through proceedings taken in the child’s name by his or her legal
guardian, it does appear that the current legislation provides for rights the
breach of which is without remedy as long as the Director remains the
guardian of the child. It may be that a remedy for the breach of such rights
can only be sought against the Director once a continuing custody order
has ended (see s. 53(a) of the Act) and the Director has ceased to be the
guardian of the child.
[76] The Court also refused to invoke its parens patriae jurisdiction.
[77] The decision was appealed and overturned on appeal on the basis that the
proceedings in Supreme Court were irregular. The Court also found that any person had
status to bring on an application for the Supreme Court to exercise its parens patriae
jurisdiction: L.S. and S.S. v. British Columbia (Ministry of Children and Family
Development), 2004 BCCA 244; 196 BCAC 82; 4 RFL (6th 433; 27 BCLR (4th) 62; 238
DLR (4th) 655.
[78] In 2002 and 2003 there were three decisions regarding two foster children in the
home of the K.’s. In the first decision, Director of Family and Child Services v. K.(P.),
2002 BCSC 1762, the Director appealed an order made in Provincial Court in which the
K.’s had been granted full-time access to their former foster children under s. 56 of the
CFCSA. A CCO had already been made in the CFCSA matter. The question of standing
arose in that matter and the Director argued that policy concerns should prohibit the
foster parents from making such an application.

[79] Section 56 of the CFCSA states that:
56 (1) If a continuing custody order is in effect, a parent or any other

person may apply to the court for access to the child.
The phrase “parent or any other person” is identical to the language of s. 51 of the FLA.
[80] The Court noted that the FCSA (the former Act) did not have a provision dealing
specifically with access applications. On a plain reading of the CFCSA, the foster
parents had standing to apply for access. However, the Provincial Court Judge had
erred in making an access order that was in fact a custody order, thereby usurping the
Director’s role in determining the placement of the children. The Order was set aside.
[81] In The Director of Child, Family and Community Service v. K., 2003 BCSC
742, the Supreme Court heard an appeal from the Director under the CFCSA where the
lower court had found that the K.’s had standing under the FRA to apply for custody of a
child after a CCO had been made. The foster parent appealed the same judge’s
decision finding that the foster parent had no standing to apply under s. 54 of the
CFCSA to set aside a CCO.
[82] With respect to standing under the FRA to vary a CCO, the court found that there
was no authority under the FRA to vary or cancel a CCO. The decision of the trial judge
that the foster parent had standing under the FRA did not confer anything on the foster
parent, given the jurisdiction of the FRA.
[83] With respect to s. 54 of the CFCSA, a person only has standing if they were a
party when the order was made. The Court relied on Judge Auxier’s decision in A.I.
(Re), (1996) B.C.J. No. 2774 (B.C. Prov. Court), paragraph 9:
Section 54 is clearly intended to limit those instances where a court would

entertain an application to rescind a permanent order:
a) To be an applicant, you must fall within a very limited category --
you must have been "a party to a proceeding in which a continuing
custody order was made". Who are the parties in a continuing
custody hearing? I look to section 49(3). The parties would be the

parents and, where applicable, the band or aboriginal community
representatives -- but only if these persons appeared at the
continuing custody hearing.
[paragraph 14]
[84] The Court goes on to note that a retroactive order adding a party under s. 39(4)
is not permitted since “that section doesn’t allow such a remaking of history” [para 11].
Judge Auxier also relied on the Perteet decision for the proposition that foster parents
do not have standing to make such an application.
[85] The foster parents argued that the decision in Director of Family and Child
Services v. P.K. and T.K., 2002 BCSC 1762 supported their position, but the Judge
found it was inapplicable to s. 54 of the CFCSA.
[86] At paragraph 21, the Court states:
. . . .The CFCSA simply denies a foster parent that opportunity, and for
good reason. Were K. entitled to do as she wants, then every foster parent
of every child under a continuing custody order in British Columbia could
do likewise. The Director’s ability to plan for the child’s future would be
severely compromised in the result. There is, therefore, a good policy
reason to limit a foster parent’s role to a temporary paid caregiver. Were
they to become more than that they could stymie the Director’s effort to
carry out his mandate.
[87] In K. v. HMTQ (BC) & Others, 2003 BCSC 1248, the K.’s applied to adopt the
two children, but the Director would not consent. The K.’s asked that the court dispense
with the Director’s consent, as well as the biological father’s consent to the adoption.
The Court struck the petition because the foster parents lacked standing under the
Adoption Act to bring the petition and the petition was bound to fail.
[88] In its reasons, the court provided an extensive review of cases involving the
Director where the issue was adoption. The Court noted that “the best interests of
children is often better determined by those who are in regular and long term contact,
than by a court with limited time and resources to explore the matter” [para. 110].
[89] And at paragraph 118, the court states:

[118] I am troubled by the underlying circumstances of the present case,
for it seems clear that the role of foster parents in our society is in
transition. These caregivers play an important role yet lack many of the
rights which generally attach to those who serve in the capacity of parents.
At the same time, there are good reasons for maintaining a separate and
distinct role for foster parents compared to that of the parental authority.
Foster parents are essentially contract parents. They provide a safe
environment for a child in a time of transition or need. While there are
certainly exceptions, generally these placements are intended to be
temporary, and the contracts made create a clearly defined set of
obligations and rights for all parties involved. There are a great many
implications which would flow from the alteration of those relationships,
not least of which would be increased levels of litigation and uncertainty.
[90] In C.K. v. The Director, Ministry of Children and Family Development and
British Columbia (Attorney-General), 2003 BCSC 785, the foster parents asked for
an order prohibiting the Director from moving a child from their foster home. The foster
parents relied on s. 70 of the CFCSA in support of their petition. The Court declined to
make any orders, relying on the wording in Perteet and the L.S. and S.S. decision
above.
[91] The court also found that it was not a situation where the court’s parens patriae
jurisdiction should be invoked.
[92] The Court described the situation as follows:
[45] It is highly probable that foster parents will become attached to the
children they care for, particularly when they receive the children
immediately after birth. I cannot help but express my admiration for the
people who take in needy, handicapped children and care for them as
though they were their own.
[46] Unfortunately, the lot of a foster parent is inherently insecure. There
are competing interests, such as the interests of biological parents and
biological siblings. The legislature anticipated such problems and carefully
crafted a statute to ensure that the Director has the necessary discretion
to act freely in the best interests of the child in care. The Ks signed a
contract with the MCFD which contained the following clause:
3. A Director may at any time, in his or her sole discretion,
retake physical care and control of a child who is receiving
services from the Caregiver and revoke any guardianship
authority specified or implied, which has been delegated by

a Director to the Caregiver.
....
[48] In summary, the legislature has given the Director the power and
responsibility of determining what persons are to act as foster parents of
children in need of protection, and to remove the children from the care of
foster parents and place them with other foster parents as deemed by the
Director to be in the best interests of the children. There is no legislative
gap where the legislature clearly intended to withhold from the court the
power to reconsider the Director's decisions.
[49] The court cannot substitute its view for that of the Director. The court
can only intervene and overrule a decision by the Director if that decision
is capricious or made in bad faith. I cannot say that in the circumstances
of this case.
[93] In CFCSA and the Child E.S.I., the family friends of the mother applied for
custody under the FRA. The child was in the temporary custody of the Director and the
Director had applied for a CCO. The Court directed that until a CCO was made, any
person could apply for custody of the Child. If the applicant had no meaningful
connection with the Child, the court may make an interim ruling as to whether standing
should be permitted. The Court suggested that the test should be whether there was a
prima facie case where it could be in the Child’s best interests. The applicant in this
case was not a foster parent or former foster parent to the Child.
[94] In Director v. M.L., 2005 BCPC 77, Judge Raven ruled on an application by the
Director to place a child into the custody of his long term foster parents pursuant to s.
54.1 of the CFCSA. A finding had already been made that the child was in need of
protection under s. 40 and a CCO had also been made. The father of the child had not
attended at the CCO hearing and was not a party, the mother had passed away, and
the grandparents of the child were in agreement with the foster parents having custody
of the child. The foster mother’s aunt was a good friend of the child’s paternal
grandmother, so there was some connection other than through being a foster parent. If
an order under s. 54.1 were to be made, guardianship rights of the person and the
estate of the child are joined and transferred to the person receiving the transfer of
custody. Once the order is made, the FLA governs.
[95] The issues in the case are set out at paragraph 31:

1. Are foster parents within the group of persons "other than the child’s
parent" to whom custody may be transferred?
2. Do persons to whom the Director seeks to transfer custody understand
the nature and consequences of consenting to a transfer of custody under
s. 54.1, and do they voluntarily consent to such a transfer?
3. Is the transfer of custody proposed under s. 54.1 of the CFCSA in the
best interests of children who are in the continuing custody of the
Director?
[96] Section 54.1 states that:
(1)Subject to subsection (1.1), a director may apply to the court to

permanently transfer the custody of a child who is in the custody of the
director under a continuing custody order to a person other than the child's
parent.
[97] Judge Raven found that the foster parents were not within the category of person
to whom custody could be transferred under s. 54.1 of the CFCSA. In coming to that
conclusion, she reviewed the law as it stood in relation to foster parents, including the
cases already described.
[98] In N.K. v. British Columbia (Director, CFCSA), 2008 BCSC 1321, the
petitioners were former foster parents who were in the process of adopting their foster
child when the Director discontinued the process. A CCO had already been made in the
matter. The foster parents applied for judicial review and for an order under the court’s
parens patriae jurisdiction.
[99] Following the cases set out above, the Court found that the adoption process
was not a statutory power of decision that was reviewable under the Judicial Review
Procedures Act, that foster parents were not entitled to notice of court applications, and
that this was not a case where the court should exercise its parens patriae jurisdiction.
In coming to those conclusions, the Court referred to Galbraith v. Superintendent of

Family and Child Service (1981), 51 B.C.L.R 314; 25 R.F.L. (2d) 244 (S.C.), pp. 254-
255 at which Locke J. stated:
This province has set up an elaborate system to ensure children are

placed with suitable adopting parents after they have been screened as to
suitability. In any administrative processes there are both good, mediocre
and even poor investigations and perfection is not easily arrived at but if
the information is reasonably accurate and the recommendations made
bona fide I see no reason to interrupt it. The court should only use its
overriding inherent jurisdiction—to draw a quotation from Chappell’s case
at p. 18:
“‘…whenever it is just or equitable to do so to ensure the
observance of due process of law, to prevent abuse of court
processes, or to do justice between parties.’”
Taking the above standard, I find no elements warranting
interference in this case.
[100] In W.N. v. C.G., 2012 BCCA 149, both the biological father of the children and
their former foster parents applied under the FRA for sole custody and guardianship of
the children. The trial judge in Supreme Court found for the father. The trial judge also
found that the application by the foster parents was against public policy and “in conflict
with the proper role of foster parents” [para. 1].
[101] The foster parents in this case had a historical connection to the child’s mother.
The mother of the child had herself been in the care of the Ministry. She had been
placed with one of the foster parent’s biological parents and considered the foster
parent to be a “foster sister”. When the parties’ child was eight months old, the mother
placed the child with her foster sister and her foster sister’s partner. This arrangement
was formalized under a “kith and kin” agreement with the Director. The child was
returned to the mother for a short while and then the Ministry removed him.
[102] The foster parents started an action for custody of the child in Supreme Court
under the FLA. The Director advised the foster parents she was opposed to the
application and removed the child from the foster parents care after the foster parents
refused to withdraw their application for custody. The Provincial Court in the CFCSA
matter made a temporary supervision order under the CFCSA in favour of the father.
[103] The Supreme Court determined that it would be unfair to permit the foster
parents to rely on the bond established between them and the children as foster parents

in an application under the FRA. To permit that reliance would be contrary to public
policy and would undermine their role as foster parents. It would be unfair to the parents
to be in competition with the foster parents and it would override the decision made by
the Director.
[104] At paragraph 37, the BC Court of Appeal stated:
[37] At the outset, I note that the appellants’ application for custody was
made while they were still acting as foster parents for the children;
however, when the issue of custody was determined, the children had
been removed from the appellants’ care and the supervision order was in
effect. This appeal does not address the argument that filing their FRA
application while a CFCSA order determining custody was in effect was an
impermissible circumvention of the latter scheme. Instead, this appeal
addresses the effect of the supervision order on the appellants’ ability to
apply for custody because, functionally, this was the issue for trial. The
parties and the judge agreed that there was jurisdiction to make an order
under the FRA and the Director advised the court that it had no further
custodial interest in the children at the time of trial.
[emphasis mine]
[105] The Court of Appeal stated the law at paragraph 38 as follows:
1. Concurrent FRA and CFCSA proceedings are permissible;

2. If there is a conflict between the FRA and the CFCSA, the CFCSA prevails.
[106] The Court agreed with the trial judge that a return to a parent apparently entitled
to custody under s. 41(1)(a) of the CFCSA released the child from the Director’s care
and control, but the supervision order did not determine custody. It was open to
competing claims to be determined under the FLA. However, in dismissing the foster
parents’ application, the trial judge did not review the child’s best interests.
[107] The Court of Appeal noted that the N.K. decision did not decide that foster
parents may not make application under the FRA [para. 52]. The BC Court of Appeal
distinguished R.L. on the basis that it was concerned with “the limited role of foster
parents prior to a finding that a child is in need of protection and not the right to apply for

custody under a different scheme” [para. 56].
[108] At paragraph 66, the Court concluded that:
[66] None of these cases is determinative of the question of whether

proceedings under both the FRA and the CFCSA may exist concurrently.
Further, they are not determinative of the question of whether the public
policy considerations described in those cases are applicable to
applications for custody that do not seek to challenge a decision by the
Ministry to move a child in order to protect that child or to arrange care
pending determination of the need for protection.
[109] The Court found that Perteet “stood for the narrower proposition that a decision
to remove a child from a particular foster home cannot be indirectly challenged by foster
parents through the court’s parens patriae jurisdiction” [para 70].
[110] The Court reviewed previous case law and found as follows:
[71] This narrower construction is consistent with the Nova Scotia Court of
Appeal’s interpretation of Perteet in Children’s Aid Society of Shelburne
County v. I.C., 2001 NSCA 108 at para. 40, 19 R.F.L. (5th) 243:
[40] As with the Ontario legislation, the unique wording of the
British Columbia FCSA, dictated the result [in Perteet]. It was
the court's opinion that it was the intent of the legislation that
an application to terminate a permanent care order be made
only by a parent or the superintendent and not a foster
parent. Section 21 of that Act, which preserved the parens
patriae jurisdiction of the court, was not to be used to
circumvent that intent. The court noted that the right of the
foster parents to bring an application for judicial review of the
conduct of the superintendent was not in issue.
[72] Other authorities make it clear that, in British Columbia, child
protection proceedings may run concurrently with FRA proceedings. In Re
Superintendent of Family & Child Service et al. v. Stuart (1985), 1985
CanLII 452 (BC CA), 18 D.L.R. (4th) 617 at 624, 63 B.C.L.R. 104 (C.A.),
Craig J.A. held that:
...There is no doubt that the tenor of all the legislation in

British Columbia relating to children is that a court's
paramount concern is the best interests of the child. When
considering the best interests of a child, a court may deal
with the applications under the Family Relations Act at the
same time as dealing with applications under the Family &

Child Service Act: J.M. v. Superintendent of Family & Child
Service, supra and Mirasty v. Superintendent of Family &
Child Service…
[73] In a similar vein, in Re Mirasty et al. and Charles et al., (1984), 1984
CanLII 395 (BC CA), 15 D.L.R. (4th) 481 at 485-486, 59 B.C.L.R. 317
(C.A.), this Court held that:
If the parents' position is to be respected, as the common
law and the statute indicate, it would be wrong to decide an
application for custody by a third party before dealing with
the provisions of s. 14(2) and (3) of the Family and Child
Service Act [Permanent Order].
But applications for custody, and the evidence and
submissions respecting them, may be very important in
determining where the balance lies in an application under s.
14. Under that section the safety and well-being of the child,
the best interests of the child, the claim of the parents, and
the competing claims of the superintendent and third parties
may all be relevant to deciding what order ought to be made.
...
It seems to me that those objectives can be best met, in
most cases, by hearing all of the parties before a decision is
made. A trial judge, charged with the responsibility of
conducting a proper hearing, will decide, in the
circumstances of each case, the procedure he or she will
adopt to achieve this objective.
...
It follows that the learned chambers judge was correct when
he held that the s. 14 application and the custody
applications could be heard concurrently...
[74] Thus I conclude from the jurisprudence that the jurisdiction of the
court under the FRA is not necessarily ousted where CFCSA proceedings
are underway.
[75] The next question is which scheme prevails in the case of a conflict
and whether there is a conflict in this case. As addressed above, the law
in Ontario is clear that child protection legislation prevails in the case of
conflict. This also appears to be the law in British Columbia. In Stuart,
Esson J.A. said the following in his concurring reasons at 626:
It is sometimes said that the Family and Child Service Act is

to be treated as “a code unto itself”. That phrase may be
useful to emphasize the point that the Act embodies a
comprehensive legislative scheme and that, to the end that
the scheme will be carried out, effect should be given to the
plain meaning of the language of the Act. But it is a statute

like any other. In a proceeding under it, due regard must be
had to other applicable laws of the province and, should
there appear to be overlapping or conflict, that must be
resolved by ordinary rules of interpretation such as those
which provide for priority as between general and particular
provisions....
[76] In the case of conflict, the CFCSA is paramount.

[77] The language of s. 41(1)(a) of the CFCSA supports the contention
that the schemes can sometimes operate concurrently and without
conflict. Section 41(1)(a) contemplates the return of a child to the person
“apparently” entitled to custody. I view this language as a statement that a
supervision order is not intended to determine permanent custody rights
and that such matters, when necessary, are to be determined through
different mechanisms.
[78] I note also that the FRA explicitly contemplates custody applications
by non-parents and non-relatives. Further, there is room for non-relatives
to be treated as parents under the CFCSA. The definition of “parent”
includes persons given custody by court order or arrangement.
[79] Applying these considerations to the facts at hand, both schemes
were clearly in play in this case. The application was made under the FRA
and the supervision order was authorized and governed by the CFCSA
scheme. As addressed above, this is not necessarily impermissible as
concurrent proceedings are allowable, unless in a particular case there is
a conflict between the two schemes.
[80] In regards to whether there is a conflict, I note that child protection
legislation is not concerned with what would be the most nurturing
environment for a child but with when it is necessary to intervene with a
child’s upbringing and/or residence in order to protect that child’s health
and safety. It is specific legislation targeting a narrow purpose and, when
properly invoked, should be given precedence.
[81] In my view, considering the purpose of child protection legislation,
when considering a concurrent custody application, one should not place
undue emphasis on CFCSA guiding principles which favour returning
children to their natural parents as soon as possible. These considerations
apply to determinations of whether the circumstances require state
intervention; they do not contemplate and were not intended to have
application to questions of custody for any other purpose. As will be
addressed below, the FRA scheme accounts for ties to natural parents in
a different manner.
[82] Here, there is no conflict. The CFCSA provisions at play do not
determine long-term custody arrangements. In fact, the order in place at
the time of trial did not mark a state-imposed custody arrangement but the
cessation thereof. As stated by the Ministry at trial, the CFCSA scheme

was still operative but the Director no longer had a custodial interest.
[83] Foster parents may be aware that their involvement may be intended
to be temporary. However, on the other hand, a child’s return to his or her
parents is not the same as a decision that his or her parents are the best
people to have custody; it is merely the result of state intervention being
no longer required to protect the health and safety of that child. As is clear
from the FRA, the law does not restrict who may apply for custody of a
child but considers the best interests of the child to be determinative.
[84] The s. 35 custody application was permissible.
[111] In L.M. v. British Columbia (Director of Child, Family and Community

Services), 2015 BCSC 2261, a continuing custody order had already been obtained by
the Director over a young Métis child. The foster parents were also Métis and wished to
adopt her. However, the Director was opposed to the adoption on the basis that they
wished to place the child with the adoptive parents of her two siblings who lived in
Ontario. The Director provided me with both of the Supreme Court decisions on the
foster parents’ petitions, the case noted above as well as L.M. v. British Columbia
(Director of Child, Family and Community Services), 2016 BCSC 275. Both
decisions dismissed the foster parents’ petitions. The first decision of Justice Macintosh
found that there were no gaps between the CFCSA and the Adoption Act such that the
court should exercise its parens patriae jurisdiction. In the second petition before Justice
Choi, the foster parents had added the child as a petitioner with the foster parents as
her litigation guardians. The court found they had no authority to act as the litigation
guardian for the child. The foster parents also claimed that Justice Macintosh’s decision
violated s. 7 and 15 (1) of the Charter on the basis that it created a class of persons,
foster parents and foster children, who were deprived from “pursuing any meaningful
application to adopt in front of a court where the . . . [Director] does not consent” [para.
36].
[112] The Court dismissed the petition on the basis of res judicata and abuse of
process. In doing so, the Court noted that the foster parents were “legal strangers” to
the child [para.72].
[113] Both Justice Macintosh’s and Justice Choi’s decisions were appealed by the

foster parents to the Court of Appeal: L.M. v. British Columbia (Director of Child,
Family and Community Services), 2016 BCCA 367. In the intervening time, the birth
parents had unsuccessfully applied to cancel the CCO in Provincial Court. They were in
support of the adoption by the foster parents.
[114] The Court of Appeal stated that the foster parents faced “an insurmountable
hurdle to achieving the relief sought in the first petition [heard by Justice Macintosh] –
the adoption scheme in British Columbia does not provide for adoption of a child by
foster parents at the behest of a court, outside of the statutorily mandated process for
adoption” [para. 22]. Both appeals were dismissed.
[115] In L.J.G. v. N.B., the Supreme Court heard an appeal from a Masters’ Order in
an FLA application. The Claimants had been the foster parents of the subject child after
her removal for a total of 18 months. The foster parents had adopted the mother’s older
child earlier. The Provincial Court, in the CFCSA matter found that there were no longer
protection concerns and returned the child to her mother, making her the sole guardian
of the child. The foster parents sought guardianship of the child in Supreme Court.
[116] The master hearing the case granted some contact time to the foster parents on
an interim basis. The master also made an on-going police enforcement clause and an
order prohibiting the mother from removing the child from the lower mainland of BC. The
mother appealed.
[117] The foster parents had sought standing to challenge the return to the mother or
to join with a claim for primary care under the FLA. The provincial Court judge
dismissed their applications.
[118] In J.M.D.C. v. D.I.D.C., a child’s paternal great-aunt applied for guardianship of

her. The child was estranged from her parents. The Court found that the paternal aunt
had standing under s. 51 of the FLA as a person.
Decision

[119] As counsel has advised, none of the above cases deal with the standing of foster
parents or former foster parents to apply under the FLA for guardianship of a child that
has been placed in their care by the Director.
[120] The Director refers to the many policy considerations that she says should be
taken into account before permitting J.M.S. standing in this case. In particular, the
Director says that to permit a foster parent standing under the FLA would be contrary to
the “purpose, spirit and overall legislative scheme of the CFCSA”. As the Director notes,
most of the cases outlined above that deal with applications by foster parents uphold
the limits on foster parents that are set out in the CFCSA after a CCO is made.
Certainly, there is a public policy argument that can be made to restrict the ability of
foster parents to interfere with the decisions of the Director when considering the best
interests of the child in care.
[121] The Director submits that allowing a foster parent or former foster parent
standing to apply for guardianship under the FLA would interfere with the rights of the
natural parents to have the child returned to their care. It would set up a competition
between natural parents and the foster parents for on-going care of the children. As so
eloquently stated in the R.L. case, the competition may be unfair.
[122] Referring to the cases summarized above, permitting a foster parent to apply for
guardianship under the FLA with respect to children placed in their care may:
1. Encourage foster parents to offer their services for the express purpose of
obtaining guardianship of the children placed with them;
2. Discourage foster parents from following the Director’s plans to reunite children
with their biological parents;
3. Provide, as the Director argues, a “back door’ opportunity via the FLA to obtain
placement of a child with them rather than going through the legislative schemes
set out in the Adoption Act and the CFCSA;
4. Encourage foster parents to apply under the FLA for guardianship when they
disagree with the Director’s decisions; and

5. Create an increase in the amount of litigation and, thereby, uncertainty for the
vulnerable children that are in the care of the Director.
[123] However, in interpreting s. 51 of the FLA, I must follow the “modern principle (or
approach” to statutory interpretation. This approach was recently set out in the BC Court
of Appeal decision of T.L. v. British Columbia (Attorney General), 2023 BCCA 167. At
paragraph 117, the Court states:
[117] To interpret s. 96(1) of the CFCSA, we are bound by the modern

principle (or approach) to statutory interpretation adopted in Re Rizzo &
Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 (S.C.C.) at
para. 21:
… the words of an Act are to be read 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.
[Citing Elmer Driedger in Construction of Statutes (2nd ed.
1983) at 87, emphasis added.]
See also Bell ExpressVu Limited Partnership v. Rex, 2002
SCC 42 at para. 26.
....
[119] The Supreme Court of Canada has held that in the child protection
context, the best interests of the child take priority over parental rights.
See Syl Apps at paras. 44–45 and the cases cited therein; K.L.W. at para.
80.
[124] In this case, I must have regard for the object and scheme of the FLA and the
intention of the legislature, because the FLA is the Act I must interpret, not the CFCSA.
While the purpose of the FLA is not set out in the Act, it is the legislation the Province
has put in place to assist parents and guardians who are living separately and have
disputes regarding their children, as well as child and spousal support, and division of
property. It also deals with situations where there has been family violence and
applications by others, including non-family members, for guardianship, contact, and

other orders respecting a child. The FLA may include under its umbrella children who
are in the care of the Director under the provisions of the CFCSA. The CFCSA is the
applicable legislation where there is a conflict between the two Acts. There are no

provisions in the CFCSA that restrict foster parent applications under the FLA, so there
is no conflict if such applications are permitted.
[125] When dealing with children under the FLA, the only consideration is the best
interests of the child. Various factors are set out at s. 37 of the FLA for the court when
addressing the child’s best interests. There are requirements in the Provincial Court
Family Rules dealing with criminal records, MCFD history, and Protection Order
Registry entries where a non-guardian applies for guardianship. There are requirements
for the child’s consent where the child is over twelve years of age and the parties must
provide proof of the child’s best interests before the Court can make an order. However,
there are no limitations to who can be appointed other than they must be “a person” and
it is up to a judge hearing evidence to decide what is in the child’s best interests.
[126] I note that section 51 does mention the Director. For instance, the Court cannot
terminate the Director’s guardianship under this section of the FLA and s. 54.01 and
54.1 of the CFCSA are mentioned in subsection (5).
[127] Despite the comments made by judges in previous cases that I have summarized
and the policy considerations submitted by the Director in this case, the legislature has
maintained wording similar to the previous Act, the FRA, which read:
30(1) Subject to this Act, a court may, on application,

(a) appoint a guardian, or
(b) remove from office a guardian appointed or acting by virtue of this Part
or a deed or testamentary appointment.
And s. 35 which stated:
35(1) Subject to Part 3, a court may, on application, order that one or

more persons may exercise custody over a child or have access to the
child.
(1.1) The reference to "persons" in subsection (1) includes

parents, grandparents, other relatives of the child and
persons who are not relatives of the child.
[128] The Director says that because of the policy concerns expressed, only foster

parents should be restricted from applying for guardianship of the children who are or
were placed in their care because it might thwart the opportunities for families to resolve
their child related issues with extended family members or family friends.
[129] The decision of The Director of Family and Child Services v. K.(P.), in which
the K’s applied for access under s. 56 to the two children who had been in their care
under a CCO dealt with the same wording as is in the FLA and also dealt with the policy
concerns raised in this case by the Director.
[130] Director’s counsel in that case argued that caregivers were under contract were
not intended by the legislature to be included as persons under s. 56 because that may
conflict with the Director’s discretion to move the children from the foster parent. The
Court in that case noted that the agreement did not contain any restriction on applying
for access.
[131] The Director argued that it would “open the door to contract caregivers to acquire
legal rights to children in care” and undermine the Director’s ability to perform her
duties, which the presiding judge understood to mean that there would be a flood of
applications by former foster parents.
[132] Finally, the Director argued that in allowing access applications by former foster
parents, the Court would be making the decision as to what was in the child’s best
interests rather than the Director.
[133] The Court found that applying the modern approach to statutory interpretation,
the meaning of “a parent or any other person” was clear and that foster parents had
standing under the CFCSA to apply for access after a CCO.
[134] The Court in K.(P.) also relied on M. v. W., 1985 CanLII 442 (BC SC), a case
that considered s. 35 of the FRA:
[56] The respondents cited M. v. W., 1985 CanLII 442 (BC SC), [1985]
B.C.J. No. 2792 (S.C.),(QL), wherein Proudfoot J. considered the meaning
of “any person” for the purpose of determining an issue of standing to
apply for custody and access under ss. 34 and 35 of the Family
Relations Act. She stated the following:
Under s. 34(1)(c) and s. 35(1) the designation of “any

person” surely has to include someone that has some real
connection or real relationship to this child – some tie must
exist. While I do not propose to attempt to name all the
persons that might be included in this category of “any
person”, I would have to conclude that it would include
persons that are blood relatives, relatives by marriage,
grandparents, aunts and uncles (including in-laws),
babysitters, foster parents or daycare workers who have
developed some relationship.
[57] I would adopt and apply the same interpretation to the phrase “any
person” in the Act.
[58] In my opinion the requirement of a real connection or relationship to
the child is the only qualification that must be placed on “any person” as it
is used in s. 56 of the Act. Foster parents such as the respondents, with
whom the children have resided for a number of years, clearly meet that
qualification and have standing to apply for access.
[135] The Court of Appeal decision of W.N. is also of application. While the child had
been returned to the biological parent under the supervision of the Director and, thus,
the child was not in the temporary care of the Director, the application itself had been
filed while the child was in the temporary custody of the Director. The Court of Appeal
did not take issue with the timing of that application.
[136] I find that s. 51 of the FLA must be given its plain meaning which is that on
application, any person may be appointed as a guardian. Any person includes a foster
parent or former foster parent.
[137] While the Director urges me to outline a test for determining when “a person” will
be restricted from applying under the FLA for guardianship, I find that I am not in a
position to do so. Every family file has its different facts and different relationships.
Every child is an individual with their own array of best interests. All of the factors set
out in s. 37 must be considered, not to children in general, but to the individual child that
is the subject of our decision.
[138] If the person who applied for guardianship has no real connection to or
relationship with the child, the trial judge has the responsibility to manage the case,
using the tools under the FLA. Those tools include hearing the FLA matter separately,
holding trial management conferences, and determining disclosure requirements.

However it is always the court’s responsibility to hear evidence and determine what is in
the child’s best interests.
[139] The M. v. W. and K.(P.) decisions were released long before the FLA came into
effect. Yet no changes were made to the wording as to who could apply for
guardianship. In my view, no changes could be made because it is too difficult to
determine who is or will be “family” to a child. To predetermine a child’s best interests by
restricting who can apply to be a guardian without hearing evidence on the child’s best
interests would be contrary to the Court of Appeal’s decision in W.N. Accordingly, I find
that J.M.S. has standing to apply to be a guardian of M.J.N.
[140] J.M.S. had the day-to-day care of M.J.N. for a substantial period of his young life.
She is in the class of persons enumerated in the M. v. W. decision. J.M.S.’s application
for guardianship should be heard at the same time as the Director’s application for a
CCO. As set out in Mirasty, the application for guardianship may be important to where
the balance lies in the Director’s application and M.G.N.’s application.
[141] J.M.S. has also argued that An Act Respecting First Nations, Inuit and Métis
children, youth and families (the “Federal Act”) has bearing on her application and
these proceedings because both M.J.N. and J.M.S. are Métis. However, given my
decision that she has standing to bring an application for guardianship under the FLA,
as does a parent and any other person, there is no need for me to consider that
legislation.
_____________________________
The Honourable Judge K. Ferriss
Provincial Court of British Columbia

2023 BCPC 154

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Citation: ☼ Director v. M.G.N. and M.D.J., J.M.S., and M.J.

2023 BCPC 154

2023 BCPC 154 (CanLII)

DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE

File No: F43767

AND IN THE MATTER OF

2023 BCPC 154 (CanLII)

Counsel for the Director: K.L. Diehl

2023 BCPC 154 (CanLII)

Position of the Parties

Proceedings in Provincial Court under the CFCSA and FLA

2023 BCPC 154 (CanLII)

2023 BCPC 154 (CanLII)

2023 BCPC 154 (CanLII)

The Supreme Court Proceedings

[30] In s. 1 of the CFCSA, a “parent” includes:

a) a person to whom guardianship or custody has been granted by a

2023 BCPC 154 (CanLII)

[31] A “caregiver” is defined as:

... a person with whom a child is placed by a director and who, by

[32] Section 2 lists the CFCSA’s guiding principles as follows:

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

2023 BCPC 154 (CanLII)

51 (1) On application, a court may

2023 BCPC 154 (CanLII)

1. the presentation hearing or interim stage,

[37] The Director provided the following case law:

8. N.K. v. British Columbia (Director, CFCSA), 2008 BCSC 1321

2023 BCPC 154 (CanLII)

[38] J.M.S. provided the following cases:

1. W.(C.K.), 2002 YKTC 3

2. L.J.G. v. N.B., 2017 BCSC 350

3. J.M.D.C. v. D.I.D.C., 2019 BCSC 172

4. CFCSA and The Child E.S.I., 2003 BCPC 274

5. Director v. L.W.C., B.C. and K.F., 2016 BCPC 311.

Interim Stage - Legislation

a. to consent to health care for the child;

2023 BCPC 154 (CanLII)

Interim Stage – Case Law

[44] Judge Raven, in an unreported decision, Director of Child, Family and

2023 BCPC 154 (CanLII)

Where there is an outstanding C.F.C.S.A. application, any F.R.A. order is

applications are joined for hearing. Re Mirasty (sub nom M. (R.) v. C.

[52] At paragraph 23, Judge Raven states:

2023 BCPC 154 (CanLII)

2023 BCPC 154 (CanLII)

The Permanent Stage - Legislation

The Permanent Stage – Case Law

2023 BCPC 154 (CanLII)

[66] The Court found that:

2023 BCPC 154 (CanLII)

. . . .the legislature clearly intended that the superintendent should

2023 BCPC 154 (CanLII)

. . . . The Act does not envisage a contest between members of a child’s

[69] And at paragraph 11:

[70] With respect to foster parents, the court noted that:

[71] At paragraph 41 the court continues:

2023 BCPC 154 (CanLII)

[53] Clearly the present Act cannot be seen as intended to delegate

[19] The current legislation may not be intended to delegate unfettered

2023 BCPC 154 (CanLII)

[75] At paragraph 21, the Court found that:

[21] In my view, the underlying reasoning in Perteet remains applicable.