Family Law Act Overview – MCFD Breach of Law, Denied respondent due process and procedural fairness and rights

Click here to read the full document or an excerpt below.

 

In MLJ v RDJ 2013 BCDC 1358
• THE FACTS
• In this case, the Mother withheld access to Dad, breaching a court order. She was advised to do so, at the request of MCFD, who were investigating a protection report. MCFD did not take any steps under the CFCSA to remove or supervise the children (or under the FLA), but directed mom to deny dad access.
• A s211 report was completed 4 months later, and eventually MCFD agreed that the children should go back to the regular schedule with dad.
• Dad then sought costs against MCFD and mom, for him having to enforce the order. The Court criticized MCFD and said
• [28] In the case before me, there were two parents entitled to custody, both the respondent and the claimant. The MCFD took no formal action and thereby denying the respondent due process. With no authority, it removed the child from his care. The director counseled the claimant to breach a court order and provided no legal framework for the respondent to challenge its actions. To paraphrase an excerpt in Black’s Law Dictionary, fifth edition, at p. 449, due process of the law provides notice to a person and an opportunity to be heard and to enforce and protect his rights before a court having power to hear and determine the case. The respondent was denied this basic procedural fairness.
• AND

[30] I find nothing in my review of the CFCSA that gives the director the
power to limit contact between a parent and child without removing the
child and initiating protection proceeds. The CFCSA does provide
jurisdiction for the director to apply for leave to intervene in a proceeding
under the Family Law Act in the Supreme Court under s. 97.1 of the CFCSA,
but this was not done.
• Intervention in Family Law Act proceedings
• 97.1 A director may apply under section 204 (2) of the Family Law Act to
the court, as defined in that Act, for leave to intervene in a proceeding
under that Act if the director considers it is in the best interests of a child to
do so.
• In other words: MCFD cannot be intervening or “directing” parents to
breach a current family law order without taking action under the CFCSA
or FLA. To do so denies the other parent their procedural rights.
• This is a common problem that other parent’s counsel report. This is the
first cited case I have seen on this issue.

 

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