Child-protection committee completes review of selected court orders and procedures at this month’s meeting

20 March 2020

By Kevin Zakreski

At its March 2020 committee meeting, BCLI’s Child Protection Project Committee continued its review of provisions of the Child, Family and Community Service Act relating to selected court orders and procedures. The committee considered four issues under this topic at the meeting.

First, the committee examined whether a clarifying amendment should be made to section 54.2 of the act. This section sets out the effect of orders permanently transferring custody of a child to a third party (that is, someone who isn’t a parent or the director). These orders may be made before a continuing custody order (under section 54.01) or after a continuing custody order (under section 54.1). The committee discussed whether any confusion could result when an order is made under section 54.01 having the declared effect of the third party becoming “the child’s guardian.” Should it be made clear that the third party is to become the child’s sole guardian?

Second, the committee examined the wide range of other provisions in the act that call for a transfer of a child’s custody to a third party. Are these provisions in need of their own clarifying amendments on whether a transfer of custody results in the third party becoming the child’s sole guardian?

Third, the committee examined provisions in the Family Law Act regarding misuse of court process and orders respecting conduct. These provisions gave the courts an expanded range of tools to deal with misconduct by litigants in family-law proceedings. The committee considered whether any of these tools should be adopted for child-protection proceedings. Or, should this area of child-protection proceedings continue to be governed solely by the vexatious-litigant regime that applies to all civil proceedings in supreme court and provincial court by virtue of section 18 of the Supreme Court Act?

Fourth, the committee considered whether to propose amending the Child, Family and Community Service Act to provide that whenever a child is served with documents in a child-protection proceeding the child automatically becomes a party to that proceeding. Currently, the act has a provision in section 39 that gives the court the discretion to order that any person (including the child) be made a party to a child-protection proceeding. This approach is broadly consistent with the approach taken in most child-protection legislation in Canada, but other provinces (notably Alberta and Nova Scotia) have gone further and made children parties to child-protection proceedings. Should British Columbia follow where these two provinces have gone?

The goal of the committee’s review is formulating tentative recommendations for law reform, which will be published in a consultation paper later in the project’s life cycle. The consultation paper will give the public the opportunity to comment on the committee’s proposals to modernize the Child, Family, and Community Service Act.

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