A young teen from British Columbia was removed from her family home and placed in the interim and later the permanent custody of the Director of Child Protection in 2015. The Ministry located a foster home for the girl who thrived and developed a positive relationship with her foster mother. (The Director, Child, Family and Community Services Act v. Registrar General of Vital Statistics 2019 BCSC 1859)
The girl’s removal arose when criminal charges were brought against her father for sexual interference, sexual assault, and incest…a terrible, tragic situation, but one that resulted in the father’s conviction, after she testified against him. The aftermath of her trauma led to suicidal ideation and complex PTSD.
In an application to change her surname from her father’s name to the surname of her foster mother, the Director cited the Name Act, but the Vital Statistics authority refused to accede to the application since the legislation stipulated that only a parent could bring a name change application. The authority suggested that the teen contact her biological mother and request that she bring the application on her behalf.
That advice was acted on but ended badly, as the teen’s mother blamed her for damaging the family unit.
The Director launched an appeal to the British Columbia Supreme Court from the decision of the Regional Manager for Vital Statistics, filing supporting material from the teen’s counsellor, her social worker, her foster mother, and the teen herself. The evidence established that she experienced high anxiety and extreme emotional distress when signing, reading, or being called by her family surname.
After considering the evidence, the Court remarked that the Regional Director’s decision was sound given the language of the Name Act, as there was no presently qualified person to bring an application on the girl’s behalf.
Based on the “gap” in the legislation, the Court relied on its parens patriae power to provide the remedy sought, relying on E. v. Eve (1986) 2 SCR 377 where the high court said:
“An appeal to the parens patriae jurisdiction of the Court is the equivalent of an appeal to its inherent jurisdiction; namely, a jurisdiction which can be exercised when no rule or statute explicitly confers jurisdiction”
The Court noted that without the use of the parens patriae power, the minor child, would “but for its exercise, be left in a hopeless situation.”
Lawdiva aka Georgialee Lang