BILL 17 – 2002
CHILD, FAMILY AND COMMUNITY SERVICE AMENDMENT ACT, 2002

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

1 Section 1 of the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46, is amended

(a) by repealing the definition of "interim order" and substituting the following:

"interim order" means an order made under section 28 (5.1), 33.2 (2), 35 (2) (a), (b) or (d), 36 (3) (a) or (b), 42.1 (6) or 98 (7.1); , and

(b) in the definition of "supervision order" by striking out "35 (2) (b)," and substituting "35 (2) (b) or (d),".

2 Section 14 (1) is repealed and the following substituted:

(1) A person who has reason to believe that a child needs protection under section 13 must promptly report the matter to a director or a person designated by a director.

3 Section 17 is amended

(a) by repealing subsection (1) (b) and substituting the following:

(b) a person refuses

(i) to give the director access to the child, or

(ii) to provide the director with all the information known to the person that may assist the director in locating the child, and , and

(b) by repealing subsection (2) (b) and substituting the following:

(b) require a person to disclose all the information known to the person that may assist the director in locating the child; .

4 Section 18 (1) is repealed and the following substituted:

(1) If a person does not comply with an order under section 17 (2) (b) or (c), the court may issue a warrant for the person's arrest to bring him or her before the court to explain why the order should not be enforced.

5 Section 19 is amended by adding "or 63" after "section 17" in both places.

6 Section 28 is amended by adding the following subsection:

(5.1) If a director has applied to a court for a protective intervention order under subsection (1) and the court has ordered an adjournment of the hearing, the court may make an interim order

(a) for the purposes described in subsection (3), and

(b) for the period from the adjournment of the hearing until the conclusion of the hearing.

7 Section 32 (1) (b) is repealed and the following substituted:

(b) the court makes an interim order about the child under section 35 (2), 36 (3) or 42.1 (6), or .

8 Section 35 (2) is repealed and the following substituted:

(2) At the conclusion of the hearing, the court must make

(a) an interim order that the child be in the custody of the director,

(b) an interim order that the child be returned to or remain with the parent apparently entitled to custody, under the supervision of the director,

(c) an order that the child be returned to or remain with the parent apparently entitled to custody, or

(d) an interim order that the child be placed in the custody of a person other than a parent with the consent of the other person and under the director's supervision.

9 Section 36 (1) is amended by adding "or (d)" after "35 (2) (b)".

10 Section 39 (1) (c) and (d) is repealed and the following substituted:

(c) if the child is an aboriginal child, other than a Nisga'a child, a designated representative of an Indian band or aboriginal community served with notice of the hearing;

(d) if the child is a Nisga'a child, a designated representative of the Nisga'a Lisims Government served with notice of the hearing.

11 Section 40 (2) (b) is repealed and the following substituted:

(b) terminate any interim order made under sections 33.2 (2), 35 (2) and 36 (3).

12 Section 42.1 (6) (b) (i) is amended by striking out "was caring for the child" and substituting "had custody of the child".

13 Section 42.2 (7) is repealed and the following substituted:

(7) If the court is satisfied at the hearing that the child

(a) was the subject of a supervision order under section 49 (8), and

(b) was removed in accordance with section 42 (1),

the court must consider the child's need for finality in determining custody, and in the child's best interests, order one of the following:

(c) that the child be placed in the continuing custody of the director if there is no significant likelihood that

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

(ii) the parent will be able to meet the child's needs;

(d) an order referred to in subsection (4) (a), (b) or (c).

(8) The director may include in the evidence presented at a hearing under this section the transcript of a hearing held under section 49 with respect to the child.

14 Section 47 is amended

(a) in subsection (2) by adding "an interim order or" after "child under", and

(b) in subsection (3) by adding "or (d)" after "35 (2) (a)".

15 Section 53 (1) is amended by striking out "or" at the end of paragraph (c), by adding ", or" at the end of paragraph (d) and by adding the following paragraph:

(e) custody of the child is transferred under section 54.1.

16 Section 54 (2) is amended by adding the following paragraph:

(e) the parties to the proceeding in which the continuing custody order was granted.

17 The following sections are added to Division 5:

Transfer of custody to a person who is not a parent

54.1 (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.

(2) At least 10 days before the date set for hearing the application, notice of the hearing must be served on the following:

(a) each person to whom the court has been requested under subsection (1) to transfer custody;

(b) the child, if 12 years of age or over;

(c) if the child is registered or entitled to be registered as a member of an Indian band, a designated representative of the band;

(d) if the child is a Nisga'a child, a designated representative of the Nisga'a Lisims Government;

(e) if the child is not a Nisga'a child and is not registered or not entitled to be registered as a member of an Indian band but is an aboriginal child, a designated representative of an aboriginal community that has been identified by

(i) the child, if 12 years of age or over, or

(ii) the parent, if the child is under 12 years of age;

(f) the Public Guardian and Trustee;

(g) each person who has access to the child under an order made under section 56 (3).

(3) Subject to subsection (4), a court may permanently transfer custody of a child from the director to a person other than the child's parent if

(a) the persons referred to in subsection (2) (a), (b) and (f) have consented to the transfer of custody, and

(b) the court is satisfied that it is in the child's best interests.

(4) A court may rely on the consent given under subsection (3) by persons referred to in subsection 2 (a) and (b) if the court is satisfied that each person

(a) has been advised to consult with independent legal counsel before signing the consent,

(b) understands the nature and consequences of the consent, and

(c) has given voluntary consent to the order transferring custody under this section.

Effect of a transfer of custody under section 54.1

54.2 (1) When an order is made transferring custody of a child under section 54.1,

(a) the individual to whom custody is transferred becomes the guardian of the person and the guardian of the estate of the child, and

(b) the order does not affect the child's rights respecting inheritance or succession to property.

(2) A custody order made under section 54.1 is not

(a) enforceable under this Act, and

(b) capable of being confirmed, modified or cancelled under this Act.

(3) On custody of a child being transferred under section 54.1, an order under section 56 permitting access to the child, including any changes to that order, automatically

(a) becomes an access order that is solely between the person who is granted custody and the person who is granted access under that order, and

(b) ceases to be an access order that is capable of being confirmed, modified or cancelled under this Act.

(4) The director must send a copy of the order under section 54.1 to the Public Guardian and Trustee.

18 Section 55 (1) and (2) is amended by adding "or an order made under section 54.1" after "continuing custody order".

19 Section 56 (1) is amended by striking out "After a continuing custody order is made," and substituting "If a continuing custody order is in effect,".

20 Section 57 is amended by adding the following subsection:

(5) This section does not apply if the change of circumstances relates to an application to transfer custody under section 54.1, whether or not custody is transferred under that section.

21 The following section is added:

Access orders if application made under section 54.1

57.1 (1) If an application is made to transfer custody of a child under section 54.1, a party to an order for access to the child under section 56 may apply to the court for a change of the access order.

(2) At least 10 days before the date set for hearing the application to change the access order under subsection (1), notice of the hearing must be served on

(a) the child, if 12 years of age or over,

(b) the director,

(c) each person to whom the court has been requested to transfer custody under section 54.1 (1), and

(d) the parties to the proceeding in which an access order was made under section 56.

(3) On an application under this section, the court may, if it is in the child's best interests,

(a) confirm the terms of the existing access order,

(b) change the terms of the existing access order, or

(c) cancel the access order and make no other order.

(4) The court may attach to an access order under this section any reasonable terms or conditions.

(5) An order made under this section for access to a child takes effect, in accordance with section 54.2 (3), on custody of the child being transferred under section 54.1.

22 Section 60 (3) is repealed and the following substituted:

(3) The court may dispense with any consent required under subsections (1) and (6), if the court considers it in the child's best interests to do so.

23 Section 62 (2) is amended by adding "care or" before "custody".

24 Section 63 (1) is repealed and the following substituted:

(1) If

(a) a director has care of a child under this Act, or a director or another person has custody of a child under an order made and enforceable under this Act, and

(b) the director or the other person is denied care or custody, as the case may be,

a court, on application, may order that a police officer take charge of the child and take the child to the director or other person who is entitled to the care or custody of the child under this Act.

25 Section 93 (1) (g) (ii) is repealed and the following substituted:

(ii) with a person who has custody by an interim order or a temporary custody order under Part 3 or by an order made under section 54.1, for contributions to the child's support, .

26 Section 95 is repealed.

27 Section 97 (8) (a) is amended by striking out "section 93 (3)" and substituting "section 93 (5)".

28 Section 98 is amended

(a) in subsection (1) (b) and (c) by adding "subparagraph (i), (ii) or (iii) of" after "mentioned in",

(b) by repealing subsection (6) and substituting the following:

(6) At least 2 days before the date set for hearing an application for a restraining order, notice of the time, date and place of the hearing must be served on the following:

(a) the person against whom the order is sought;

(b) the child, if the child is 12 years of age or over;

(c) a director. , and

(c) by adding the following subsection:

(7.1) If a director or another person has applied for a restraining order under subsection (1) or (3) and the court has ordered an adjournment of the hearing, the court may make an interim order

(a) for the purposes described in subsection (1) or (3), as the case may be, and

(b) for the period from the adjournment of the hearing until the conclusion of the hearing.

29 Section 102 is amended

(a) in subsection (1) by adding the following paragraph:

(d.1) section 75. , and

(b) in subsection (2.1) by adding ", (d.1)" before "or (f)".

30 Section 103 (2) (f) is repealed and the following substituted:

(f) prescribing aboriginal organizations for the purposes of presentation hearings; .

 
Consequential Amendments

 
Family Relations Act

31 Section 22 of the Family Relations Act, R.S.B.C. 1996, c. 128, is amended by adding the following subsection:

(3) Subsection (1) does not apply to a parent of a child affected by an application if

(a) the parent's guardianship powers, rights and duties with respect to the child were terminated by a continuing custody order under the Child, Family and Community Service Act, and

(b) another person has custody of the child under section 54.1 of the Child, Family and Community Service Act.

32 The following section is added:

Guardian under a Child, Family and Community Service Act order

30.1 (1) Despite section 30 (3), a person who has custody of a child under section 54.1 of the Child, Family and Community Service Act is for the purposes of this Act, a guardian appointed under section 30 (1).

(2) Despite section 30 (3), the consent of a parent of a child is not necessary under that section if

(a) the parent's guardianship powers, rights and duties with respect to the child were terminated by a continuing custody order under the Child, Family and Community Service Act, and

(b) another person has custody of the child under section 54.1 of the Child, Family and Community Service Act.

33 Section 35 is amended by adding the following subsection:

(5) An access order referred to in section 54.2 (3) of the Child, Family and Community Service Act is, for the purposes of this Act, an order for access made under this section.

Commencement

34 This Act comes into force by regulation of the Lieutenant Governor in Council.