Two foster parents will get a chance to win back care of two young children after the B.C. Appeals Court found the Prince George trial judge who heard the original case restricted evidence related to the natural father's conduct and ability to parent.
Custody of the children, then aged one-and-a-half and two-and-a-half years old, was awarded to the father a year ago despite evidence of drugs, alcohol and violence and the fact the natural mother supported the foster parents' application.
The mother is a sister of one of the foster parents.
The decision to give the father custody was based on concern awarding care to the foster parents would be contrary to the public policy premise that the natural family is the preferred environment for care and upbringing of children.
However, in a ruling issued last week on behalf of a three-Justice panel, Appeals Court Justice Nicole Garson found the trial judge adopted an overly restrictive approach in addressing relevant legislation and evidence.
Specifically, the trial judge had to weigh the role of foster parents as described in the Child, Family and Community Services Act (CFCSA) against what is in the best interest of the children, as outlined in the Family Relations Act (FRA).
The judge concluded the goals and guidelines of the CFCSA take precedence over the foster parents' attempt to use the FRA to have the court override a Ministry of Children and Family Development decision to return the children to their father's care.
But Garson found the trial judge's reasoning erroneous.
"When considering the best interests of the child, blood ties are an important factor, but only one factor that the judge ought to have considered," Garson wrote.
"There is no statutory prohibition precluding a foster parent from applying for custody.
"It will be an unusual case in which the ministry has agreed to return the children to the natural parent because there are no child protection concerns, but a court would nevertheless award custody to the foster parents.
"But such a result is not, in my view, necessarily against public policy."
Garson noted the father began a relationship with the mother when he was 28 and she was 14 years old and it was marred by drugs, alcohol and violence. She noted a social worker's testimony that the father, while under the influence of alcohol, bit one of the children as a form of discipline.
There was social worker's evidence the children were doing well under their father's care although the foster parents expressed concerns to the ministry about the father driving without a license, using drugs and smoking cigarettes around the children.
