Application dismissed. It is in the best interests of the child to remain in the custody of her foster parents than with her biological father, as she is connected to the biological mother’s First Nations cultures and is fluent in their language.
Indigenous Law Centre CaseWatch Blog
The Director of Child, Family & Community Service [“Director”] has a continuing custody order made by this Court for a 6 year old child. The biological father, applies to set aside that order. However, there is no application before the Court to appoint him or anyone else to be the child’s guardian, and it is not clear who would be.
A biological parent is a guardian if and only if the biological parent “regularly cared for the child” (Family Law Act). The father has never had day-to-day care of the child, and so is not her guardian. The father’s application was opposed by the biological mother. Sadly, however, she recently died of a drug overdose and was unable to participate in the hearing. As well, the Director opposes the application. Three First Nations participated in the hearing, the Homalco and Klahoose First Nations, of which the mother was a member, and the Wuikinuxv First Nation, of which the father is a member.
The Federal Statute recognizes and affirms the right of First Nations to enact their own laws in relation to child custody and protection. None of the Wuikinuxv, Klahoose and Homalco First Nations have exercised that right. On an application to set aside a continuing custody order, the issue is not whether the child is in need of protection. Rather, the issues are: 1) whether there has been a significant change in the relevant circumstances since the continuing custody order was made; and 2) if so, whether cancellation of the continuing custody order is in the child’s best interest (Director of Child, Family & Community Service v AI, 2005 BCPC 620).
The father has clearly made significant progress with his substance abuse and anger- management issues, however, there is always a risk of relapse with every recovering addict and there is a history of violent behaviours. The Court is not in a position to quantify the risk of future family violence initiated by the father, but it is considered to be a real risk, which should not be ignored. Each of the governing statutes emphasizes the importance of fostering the child’s connection to, and participation in, the cultures of the First Nations of which she is a member.
The child has been an active participant in the Klahoose and Homalco cultures since she was 13 months old. Those cultures are fully-integrated aspects of her day-to-day life. She is fluent in their common language, and knows many of the traditional songs and dances by which the cultures are transmitted from generation to generation. She visits often with her maternal grandfather, with whom she speaks the language and participates in cultural activities. She engages in traditional food-gathering and preserving activities as part of her day-to-day life. The statutes do not allow the Court to prefer father’s interests at the expense of the child’s. The Court is of the opinion that the child’s best interests are served by remaining in her present placement, and that the application should be dismissed for that reason.