16 September 2013

Court Comments on Records Requirements for Guardianship Applications

Regular readers will recall that under the new Family Law Act, people who must apply to be appointed as a guardian of a child — remember that some people are automatically guardians — are required to prepare a specific form of affidavit with certain documents attached to it. Section 51 of the new act says this:
(1) On application, a court may
(a) appoint a person as a child's guardian ...
(2) An applicant under subsection (1) (a) of this section must provide evidence to the court, in accordance with the Supreme Court Family Rules or the Provincial Court (Family) Rules, respecting the best interests of the child as described in section 37 of this Act. ...
To figure out what evidence must be provided to the court, you have to look at Provincial Court Family Rule 18.1 if you're making your application in the Provincial Court, or Supreme Court Family Rule 15-2.1 if you're in the Supreme Court. Both rules say that:
  1. you must file a special affidavit, Form 34 in the Provincial Court or Form F101 in the Supreme Court, within a certain number of days of the hearing; and,
  2. "any records check, criminal records check or protection orders records check" attached to the affidavit must have been prepared within a certain number of days of the hearing.
To figure out what checks are required, you then have to look at the special affidavit. 

This overall arrangement is somewhat peculiar, as none of s. 51(2), PCFR 18.1 or SCFR 15-2.1 state that the records checks must be provided or explain the sort of checks that are required. This task is left to the affidavit forms and the affidavit forms are, in hindsight, not as clear as they could be. This is what PCFR Form 34 says on the issue (the text in italics is the instructions provided by the form) :
9 Attached to this affidavit and marked as Exhibit ______ is a copy of a British Columbia Ministry of Children and Family Development records check dated ______ . [Note that under rule 18.1, if there is to be no hearing for this application, this records check must be dated within 60 days of the date on which this affidavit is filed.] 
10 Attached to this affidavit and marked as Exhibit ______ is a copy of a Protection Order Registry protection order records check dated ______ . [Note that under rule 18.1, if there is to be no hearing for this application, this records check must be dated within 60 days of the date on which this affidavit is filed.]

11 Attached to this affidavit and marked as Exhibit ______ is a copy of a criminal records check dated ______ obtained from the ______ [name and location of police force or department from which the criminal records check was obtained]. [Note that under rule 18.1, if there is to be no hearing for this application, this records check must be dated within 60 days of the date on which this affidavit is filed.]
These ambiguities were before Judge Frame of the Provincial Court in Director and L.M.P. / L.M.P. v. K.P., a case involving a father who never resided with his child or regularly cared for the child, and accordingly was required to apply to be appointed as the guardian of his child. As the court put it,
"[2] During the course of the proceedings, the issue of [the father's] criminal record check arose. Clearly the criminal record checks conducted both by the Ministry of Children and Family Development, as well as the one obtained by [the father] pursuant to the family law legislation, do not disclose his criminal history. Thus, the issue arose whether a criminal record check was a mandatory or compellable requirement, what form of criminal record check was to be conducted, and what results are adequate for the purposes."
After reviewing the requirements of the act and the Rules of Court, the judge embarks on a very welcome discussion of the nature of police policies, and the available criminal record checks, their costs, their wait periods and their relative inadequacies. (This overview will be very helpful for anyone who must complete a Form 34 or Form F101, see paragraphs 12 to 39 of the judge's decision.) Here are the court's conclusions, with the particularly important bits in bold:
"[47] It is clear that in order to meet the purpose and requirements of the legislation, the criminal record check to be performed must include a vulnerable sector search [a special search that reports all police involvements, all information related to non-convictions and all charges regardless of what happened with them]. ... 
"[49] I am not satisfied that the existing legislation is sufficient to compel a person to obtain a criminal record check, much less the secondary fingerprint search. Where there is such a positive obligation upon an applicant to disclose such sensitive information, there ought to be mandatory language in some part of the legislation, be it the Family Law Act, the rules, or the regulations bringing the form into force. 
"[50] Furthermore, I am not satisfied that Form 34 contemplates any more than the preliminary criminal record check such as the one obtained by [the father]. Paragraph 12 of that affidavit form provides a section for the applicant to complete where the criminal record check omits some part of a person’s criminal history. It recognizes that the criminal record check may not be complete. The [applicant] is only required to disclose convictions for which there is no pardon. Presumably if a person were convicted of a sexual offence for which they were pardoned, there would be no obligation to disclose it. This defeats the whole apparent intention of protecting children who are members of a vulnerable sector.

"[51] I cannot tell from the evidence before me whether a person can obtain a vulnerable sector search for themselves through any other police agency, but it certainly cannot be obtained from the Vancouver Police Department for personal reasons. It appears this is based on RCMP policy. If applicants cannot obtain a vulnerable sector search, it seems to defeat the whole purpose of having the criminal record check done for a guardianship application. ... 
"[54] I am not satisfied that I have the authority to order [a] secondary fingerprint search absent any legislation empowering me to do so. There is no inherent jurisdiction in this court to make such orders. This goes beyond matters of procedure over which this court does have some inherent jurisdiction. ... 
"[56] The most practical procedure would be for [the father] to attend the detachment where he obtained his initial criminal record check and request a fingerprint search. While I cannot order him to do so, it is more practical than he or any other party trying to determine all of the detachments with which he had any engagements and make applications for disclosure of their records. ... "
In other words, the specific check an applicant for guardianship must obtain for the purposes of the Family Law Act is the particularly intrusive vulnerable sector search. However, an applicant cannot be compelled to request the vulnerable sector search, the form doesn't appear to require it, and policy policy appears to prevent applicants from getting it. Isn't this awkward. Making matters worse, the court's proposed solution — having the applicant attend at a police station to request a special search using fingerprint identification— is something that an applicant cannot be compelled to do.

It appears, then, that a person applying to be appointed as the guardian of a child is only required to provide the sort of brief check you can get by walking into a police station and asking for the check. It would be prudent to ask for the secondary fingerprint search; whether court can force you to do this or not, it will help to demonstrate your good faith in making the application.

Now, the Supreme Court is a court of inherent jurisdiction, which means that it is not limited by what the legislation says it can do when it makes orders. It is also a court of parens patriae jurisdiction, which means that it can make such orders as are necessary for the benefit of a child, usually when there is a gap in any applicable legislation. This may affect the outcome when similar issues arise in that court.

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