Summaries Sunday: OnPoint Legal Research

One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.

A.A.A.M. v. British Columbia (Children and Family Development), 2015 BCCA 220

AREAS OF LAW: Family Law Act; Best interests of the child; Guardians

~It is unfair to say that a parent does not regularly care for a child for the purposes of determining guardianship under s. 39(3)(c) of the Family Law Act, when the Director of Adoption and the courts control that parent’s access to the child.~

BACKGROUND: The Appellant, M, is the biological father of a child born on December 8, 2009. The Appellant was not in a marriage-like relationship with the child’s mother, and the child’s birth registration form indicated that the father was “unknown”. On December 18, 2009, the mother signed a consent to adoption, making the Respondent Director of Adoption the child’s guardian. Following a DNA test that proved he was the child’s biological father, the Appellant became registered on her birth certificate. The Respondent placed the child with a couple in Alberta who had adopted her half-sister, and who were to act as her “caregivers” pending her adoption. Five months after she was placed for adoption, the Appellant sought custody of the child under the Family Relations Act. After that Act was repealed he sought to be recognized or appointed as the guardian, or one of two guardians, of the child under the Family Law Act (FLA). Under the terms of the FLA, only guardians may have parental responsibilities or make certain major decisions affecting the child. In the years preceding the trial, the Appellant had some limited access to the child. At trial, the judge found that the child’s mother’s consent to adopt was valid. She also found that the Appellant was not the child’s guardian despite being a parent, because he could not be said to be a person who “regularly cares for the child” within the meaning of s. 39(3)(c). The trial judge concluded it was not in the child’s best interests to appoint the Appellant as a guardian under s. 51. While the Appellant had taken great strides as a parent and clearly loved the child, he was not well-suited to make significant decisions for her. He allowed his reaction to what he perceived as ill-treatment or injustice towards him to interfere with his ability to give top priority to the child’s best interests. The Appellant was in Canada on a student visa which was due to expire, and his employment and financial situation was unclear. The trial judge also considered it relevant that the Appellant was facing a charge for a potentially serious criminal offence at the time of the close of the trial. She did find it in the child’s best interests to have contact with her father, and permitted the Appellant to see the child once every six weeks for 2.5 hours in her home community, accompanied by an approved adult.

APPELLATE DECISION: The appeal was allowed. The Appellant argued that the trial judge erred in finding that the written consent signed by the child’s mother on December 18, 2009 was a valid consent pursuant to the Adoption Act and that the Respondent was accordingly a guardian of the child. He also submitted that the judge erred in finding the Appellant could not be a guardian under s. 39(3)(c) of the FLA, and that she erred in refusing to appoint him as a guardian under s. 51. The Court of Appeal was not persuaded that the written consent was invalid. Madam Justice Newbury for the majority went on to consider the other grounds of appeal. The FLA provides at s. 39(3)(c) that a parent who has never resided with the child is not the child’s guardian unless the parent regularly cares for the child. The majority found that the trial judge’s ruling on the s. 39(3)(c) question was unfair. The Appellant had no access when there was no court order in place, because he was not permitted to have access by the Respondent, and the child had been moved to Alberta. Although the Appellant himself had been relatively unresponsive to the Respondent’s inquiries, the majority found that Ministry workers, the Respondent, and the courts controlled how often and how long the Appellant was allowed to have contact with and care for the child. Therefore, they should not now be heard to say that the contact was not “regular” or sufficient. In the majority’s view, the Appellant met the criterion under s. 39(3)(c) and should be recognized as a co-guardian with the Respondent. The trial judge’s order was set aside and an order granted declaring the Appellant a guardian of the child. The Respondent remains a guardian and the Appellant’s guardianship is subject to the condition that he and the Respondent attempt to reach an agreement concerning rights and responsibilities.

Mr. Justice Groberman would have dismissed the appeal. He found that in interpreting s. 39(3)(c), one must bear in mind that the focus of Part IV of the FLA is on the child’s best interests and not parental rights. The facts of the case disclosed a very limited history of the Appellant actually being a caregiver for the child, and for the most part he was only a visitor to the child when he saw her. The question of whether a parent regularly cares for a child is one of mixed fact and law, and the trial judge’s determination of the matter was entitled to deference. There was also no basis on which the Court could properly interfere with the trial judge’s determination on the s. 51 question.

Counsel Comments provided by Mary E Mouat, Q.C., counsel for the Respondent:

“I wish to make it clear that the comments and opinion outlined herein are my opinion alone and not attributable to my client, the Provincial Director of Adoption, Her Majesty the Queen in Right of the Province of BC or the Attorney General of the Province of BC.

The BC Court of Appeal decision raises, in my view, a number of interesting issues. However, the two that stand out are the interpretation of section 39(3) of the Family Law Act and the implications for institutional guardians.

The former act, the Family Relations Act, did not grant guardianship to a birth father who had not lived with and was not married to the birth mother. Under the Family Law Act, while parents of a child are generally presumed to be a child’s guardian, if a parent has never lived with his or her child, that parent is only a guardian if:

a) There is a surrogacy or assisted reproduction agreement;
b) The parent and all the child’s guardians agree; or
c) The parent regularly cares for the child.

The Ministry of Justice explanation for “regularly cares for a child” at section 39(3)(c), in the White Paper was: “this may occur where a child is born in a short relationship where the parent did not live together, but both parents have been involved in the child’s life”. Section 39(3)(c) recognizes the fact of a dating relationship producing a child.

The purpose of section 39(3)(c) is to allow the Court to declare or recognize guardianship without consideration of a child’s best interests. It is implicit that if a parent regularly cares his or her child, it is in the child’s best interest to recognize and declare that relationship.

A parent who does not fall under section 39 still has the opportunity to be a guardian and can only become a guardian by Court order and with a consideration of the child’s best interests.

The bulk of the early interpretation of the Family Law Act flow from the Provincial Court and while the Provincial Court cases that were cited by counsel in this case examined the concept of “regularly cares for”, it was a retrospective fact finding: what was the care prior to the application to Court.

The Court of Appeal notes in this case that “the intention of the Legislature was to refer to a parent who has demonstrated a continuing willingness to provide for the child’s ongoing needs…certainly it connotes something more than simply ‘visiting’ the child, even at regular intervals.” [Paragraph 63].

Evidence as to “willingness to parent” is much different than proof that prior to the application, there was the fact of regular care.

As the Director of Adoption as guardian and the Court controlled how often the Appellant was able to have contact, the Court of Appeal found it would be inherently unfair for the Director of Adoption and the Court to use that control to preclude a finding that the appellant had regularly cared for the child.

While the facts of this case are unique, does it now flow that a parent’s mere intentions to “regularly parent” a child may be enough to have a parent declared a guardian?

Turning to the issue of institutional guardianship, while the declaration that the Appellant is a guardian in this case doesn’t preclude O’s adoption, something that is in fact contemplated in the appellate decision [paragraph 68], it does raise the issue of how an institutional guardian could be a co-guardian with a non-institutional guardian.

Specifically, how does an institutional guardian exercise guardianship responsibilities with another non-institutional guardian?

How are the distinct legislative goals of the Director of Adoption – to place a child for adoption and to assist in the completion of that adoption and the goals of the Appellant who wants to continue as guardian to be reconciled?

The Adoption Act is a complete code that sets out the role and mandate of the Director of Adoption. When there is a voluntary relinquishment adoption, as there was in this case, the Director of Adoption is authorised and required to seek to place children for adoption; she is not authorized or provided with a mandate to co-parent a child.

Further, by virtue of section 24 of the Adoption Act, once the guardian’s consent to adoption has been provided, the Director of Adoption is guardian and the Public Guardian and Trustee becomes the child’s property guardian. The existence of this third guardian of the child is not addressed in the decision.

The Court of Appeal noted the Director of Adoption’s argument that it “was ‘both inherently and practically impossible’ for her to share guardianship responsibilities with an individual…” [Paragraph 40]. However, it appears that as the Appellant only sought to receive third party information and to communicate with the child, it was not thought necessary to address that argument [paragraph 69].

While I would have preferred to have had Mr. Justice Groberman’s dissent as the majority decision, that is not the case. As the Appellant’s challenge to the Director of Adoption’s guardianship has been dismissed, the most important consideration, the child’s best interests, will be the only focus in any future applications.”