Parent and another v. Ministry of Children and Family Development (No.2), 2025 BCHRT 160
Date Issued: July 8, 2025
File: CS-000620
Indexed as: Parent and another v. Ministry of Children and Family Development (No.2), 2025 BCHRT 160
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Parent and Stepparent
COMPLAINANTS
AND:
His Majesty the King in Right of the Province of British Columbia as Represented by the Ministry of Children and Family Development
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(f)
Tribunal Member: Devyn Cousineau
Counsel for the Complainants: M. Shane Dugas
Counsel for the Respondent: Zachary Ansley and Julia Roe
I INTRODUCTION
[1] This is a decision about whether to dismiss a human rights complaint brought by the Parent and Stepparent because the substance of their complaint has been appropriately dealt with in proceedings before the BC Provincial Court.
[2] The Parent has two children. The Stepparent acted as their stepparent for five years, but did not meet the legislative definition of a “parent entitled to custody”. In November 2016, the Ministry of Children and Family Development [MCFD] determined the children were in need of protection and removed them. There is no dispute that the Complainants’ mental health was a factor in the removal.
[3] This human rights complaint is about the 18-month period around the time the children were removed until March 2018. During that period, the Complainants allege that MCFD failed to offer them appropriate supports or give them guidance about what steps were necessary to work towards the return of the children. The Stepparent also alleges that the MCFD social worker on their file [the Social Worker] made discriminatory comments about him. The Complainants both allege that MCFD discriminated against them in its services based on their real or perceived mental disability, in violation of s. 8 of the Human Rights Code. The Stepparent also alleges that MCFD discriminated against him based on his family status.
[4] Between November 2018 and June 2019, the BC Provincial Court held a 17-day trial to decide MCFD’s application to permanently transfer custody of the children to their aunt and uncle. The Parent conceded that the children were in need of protection at the time of removal, but argued that there was a significant likelihood that the circumstances that led to the removal would improve within a reasonable time, so that a permanent custody order was not appropriate. In its decision dated June 19, 2019, the Court disagreed [BCPC Decision].
[5] The Court found that the Parent had unresolved mental health issues that continued to expose the children to a significant risk of emotional and physical harm. It rejected the Complainants’ arguments that MCFD had failed to provide services or give direction about how to have the children returned. The Court granted permanent custody to the children’s aunt and uncle.
[6] In this application, MCFD argues that the substance of the Complainants’ human rights complaint has been appropriately dealt with in the BC Provincial Court proceedings, as well as a civil action which was dismissed by a consent order: Code, ss. 27(1)(f) and (c). In the alternative, it asks the Tribunal to dismiss allegations outside the one-year time limit for filing the complaint: Code, s. 27(1)(g).
[7] I find I can most efficiently decide this application under s. 27(1)(f) of the Code. I agree with MCFD that the substance of this complaint was appropriately dealt with by the BC Provincial Court. It does not make sense to “expend public and private resources on the relitigation of what is essentially the same dispute”: British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 [Figliola] at para. 37. The complaint is dismissed.
[8] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.
II DECISION
[9] The Tribunal may dismiss a complaint under s. 27(1)(f) of the Code if the substance of the complaint has been appropriately dealt with in another proceeding. The principles underlying s. 27(1)(f) flow from the doctrines of issue estoppel, collateral attack and abuse of process, and include finality, fairness, and protecting the integrity of the administration of justice by preventing unnecessary inconsistency, multiplicity, and delay: Figliola at paras. 25 and 36.
[10] To decide whether the substance of a complaint has been appropriately dealt with in another proceeding, the Tribunal must ask itself three things:
a. Did the other proceeding have jurisdiction to decide human rights issues?
b. Was the previously decided legal issue essentially the same as what is being complained of to the Tribunal?
c. Did the complainant have the opportunity to know the case to be met and have a chance to meet it, regardless of whether the previous process procedurally mirrored the one the Tribunal prefers or uses itself?
Figliola at para. 37
[11] In the child protection context, s. 27(1)(f) allows the Tribunal to “avoid contradictory orders, prevent parties from undermining findings of other decision makers and promote efficient use of public resources”: R.R. v. Vancouver Aboriginal Child and Family Services Society, 2025 BCCA 151 at para.81. In X v. BC Ministry of Children and Family Development, 2024 BCHRT 333, the Tribunal explained the relationship between child protection proceedings in the BC Provincial Court and this Tribunal:
In exercising its jurisdiction over child-protection issues under the [Child, Family and Community Service Act], the Provincial Court frequently makes findings in relation to child-protection issues; for example, in relation to the actions of social workers or other actors under the CFCSA in removing children from a parent’s care, setting access and custody restrictions or conditions, or deciding whether and when a child can be returned to a parent or other individual. In discrimination complaints that come before the Tribunal in the child-protection context, the Tribunal is sometimes asked to look at issues in the human rights framework which relate to these types of issues; for example, allegations that a social worker removed a child from a parent’s care due to unfounded stereotypical views the social worker held about the parent’s race, religion, gender identity, or other protected characteristic. However, the Provincial Court may have made factual or legal findings which may be relevant to, or even determinative of, questions that arise in the discrimination complaint. In those situations, there is a potential for injury to the repute of the justice system if the Tribunal allows relitigation of those legal or factual findings: para. 62.
[12] Ultimately, the Tribunal must decide “whether it makes sense to expend public and private resources on the relitigation of what is essentially the same dispute”: Figliola at para. 37; Vancouver Island Health Authority v. Safaei and British Columbia Human Rights Tribunal, 2025 BCSC 340 [Safaei] at paras. 67-68.
[13] In this case, I agree with MCFD that the substance of this complaint has been dealt with by the BC Provincial Court. I begin by describing the allegations in the human rights complaint.
A. The human rights complaint
[14] In November 2016, MCFD removed the Parent’s two children from her custody. The reasons for removal included concerns about how the Parent and Stepparent’s mental health was impacting the children, and a criminal investigation about the Parent’s role in suspicious events affecting the family at this time: BCPC Decision at para. 4. Over the next 18 months, the Complainants were seeking to have the children returned to them, while MCFD took steps to understand and address the conditions that led the children to be in need of protection. This is the period covered by the Complainants’ human rights complaint.
[15] The Parent filed her complaint on March 27, 2018, alleging that MCFD discriminated based on her mental disability (which she identified as post traumatic stress disorder). She alleges:
a. MCFD removed her children for reasons related to her mental health.
b. Between October 2016 and January 2017, MCFD refused to offer her services, provide service recommendations, or to give her access to an advocate. The Parent alleges that MCFD promised to offer her services after she participated in a parental capacity assessment but then refused to share any services or recommendations from that assessment.
c. Between December 2017 and March 2018, MCFD would not share her mental health service needs with her treating mental health professionals, and said that she was not eligible for services because her children were being removed permanently.
d. MCFD refused to acknowledge her complaints about a lack of services and restricted her ability to ask for services.
[16] The Stepparent filed his complaint five months later, on August 29, 2018, alleging discrimination based on his family status and mental disability. His complaint named MCFD and the Social Worker. His allegations also span the period since October 2016, with an escalation in January/February 2017 when the Social Worker came onto the file. He alleges that MCFD would not provide services to him because he was not a biological parent. He further alleges that MCFD told him that his mental health was the reason that it refused to respond to his request for services and service recommendations. He makes specific allegations that the Social Worker:
a. Made untrue statements in front of his extended family that he was “mentally dangerous”, had “untreated mental health issues”, and was a “domestic violence perpetrator”;
b. Falsely told the court (and possibly others) that he had “manipulated government documents … from [his] place of employment”, that he lacked insight into his mental health, and that his treatment was inadequate;
c. Said he lacked insight into his parenting skills and the needs of his children, because of untreated mental illness and a lack of mental capacity, and refused to work towards reunification; and
d. Refused to provide “specific, clear and measurable goals” for him to take to be reunified with the children.
[17] On October 25, 2023, the Tribunal dismissed the Stepparent’s complaint against the Social Worker: Stepparent v. BC Ministry of Children and Family Development and another, 2023 BCHRT 170. On January 23, 2024, the Tribunal joined the two complaints.
[18] Given the issues and outcome in this application, I do not find it necessary to detail MCFD’s response or the extensive evidence it has submitted in support of this application. Generally, MCFD disputes the Complainants’ allegations, arguing that it fulfilled its mandate under the Child, Family and Community Services Act [CFCSA]. It says that its staff did what they could to understand and address the Complainants’ mental health needs and that there were no other services that they could offer them.
B. Issues appropriately dealt with
[19] On November 2, 2017, MCFD applied for an order transferring permanent custody of the children to their aunt and uncle. The application for permanent custody was heard by the BC Provincial Court in a 17-day trial between November 2018 and June 2019.[1] The Court heard from 18 witnesses, and the judge described the evidence as “fulsome, detailed and extensive”: para. 12. The Parent and Stepparent were represented by legal counsel. The Court found that the Parent had unresolved mental health issues that continued to expose the children to a significant risk of emotional and physical harm. It granted permanent custody to the children’s aunt and uncle.
[20] The first issue I must consider is whether the Court had jurisdiction to consider human rights issues. The fact that the BC Provincial Court does not have jurisdiction to apply the Code is not determinative: Safaei at para. 62. In this case, the Court had jurisdiction to, and did, consider how the Complainants’ mental health impacted the Parent’s ability to safely care for the children and whether there was anything further MCFD could do to support reunification with the children. It considered the Complainants’ allegations that MCFD failed to offer or direct them to supports that would have addressed the mental health concerns. These are the human rights issues raised by the Complainants’ complaint.
[21] This is also dispositive of the second issue: whether the BC Provincial Court decided essentially the same issue that is the subject of this human rights complaint. It did.
[22] The Provincial Court specifically addressed the Complainants’ allegation that MCFD refused to offer them supports or instructions about the steps they needed to follow to have the children returned to them. The Stepparent testified about these allegations, and the Court noted that “the tension between [the Stepparent] and MCFD was a major theme in the trial”: see paras. 34-35. The Court rejected the allegation, finding that the Stepparent’s evidence was “not reliable or credible on many points”: para. 37. The Court ultimately agreed with MCFD that the Parent and Stepparent were aware of its concerns but were “in denial” and avoiding the primary issue that needed to be addressed. The Court explained:
I believe it is important to address an allegation made by [the Stepparent], (and to a lesser extent argued by parents counsel). The allegation is that the Ministry unreasonably and somewhat maliciously refused to support [the Parent] and [the Stepparent] or to provide them specific guidance regarding what they needed to do in order to have the children returned. As noted, the possibility of Factitious Disorder was first raised in November of 2016, at the point of removal, when Dr. Smith made the provisional diagnosis and recommended [the Parent] be fully [assessed] for it. The issue again was raised by Dr. Dorward and by Dr. Feehan in June of 2017, and was further emphasised in Dr. Elterman’s report of November 2017. In his testimony the [Stepparent] expressed his view that MCFD did not give [the Parent or Stepparent] any specific directions about what they needed to do to get the girls back. [The Stepparent] definitely perceived this as unfair and unreasonable. [The Parent and Stepparent] were told repeatedly to follow their doctors and psychologists advice and treatment plans. The undercurrent is that [they] were not made aware that Factitious Disorder was such an issue. However I find that it must have been readily apparent to both [the Parent] and [the Stepparent] that it was a very live central issue. Dr. Smith, Dr. Feehand and Dr. Elterman directly and squarely raised these issues. Based on the opinions and reports of these three doctors, and the testimony I heard I conclude that [the Parent and the Stepparent] were both in conscious denial of the issue, or at least avoiding the issue. It may be perhaps [the Parent] was avoiding the issue because of pending criminal charges, but I do find it was an issue whose importance should have been obvious to both [the Parent and the Stepparent]: para. 81, emphases added.
[23] The Court also heard evidence from the Stepparent about his interactions with MCFD social workers and his other grievances about MCFD. The Court accepted that the Stepparent “felt very aggrieved and unsupported by the Ministry” but found that his conduct was a significant factor in the deterioration of the relationship: para. 38. I am satisfied that the Stepparent’s allegations about MCFD social workers in this human rights complaint are essentially the same as the issues he raised in the BC Provincial Court proceedings, and have been addressed.
[24] Finally, there is no dispute that the Complainants had the opportunity to “know the case to be met and … a chance to meet it”: Figliola at para. 37. They were represented by legal counsel in a lengthy court process with full procedural fairness.
[25] The Complainants’ submissions affirm my determination that this human rights complaint invites relitigation of issues that were decided by the BC Provincial Court. Their arguments, which are notably only 2.5 pages long, rely largely on evidence which they say Ministry staff gave in the Provincial Court proceeding. They appear to take issue with the Court’s findings, arguing “The evidence clearly established before the court and in the documentation that no services were offered by the Respondents”. They argue that “support was refused while there was no risk to the children” – a direct challenge to the findings of the Court. They do not offer any rebuttal to MCFD’s argument that the issues in this complaint have been substantially addressed in the BC Provincial Court proceeding. To the contrary, they appear to be expressly asking the Tribunal to relitigate those issues and reach a different conclusion.
[26] I agree with MCFD that “a finding that the Ministry acted in a discriminatory manner by removing the Children or withholding supports or service recommendations for reunification would require the Tribunal to directly contradict and undermine the factual and legal findings” of the Court. Like in X, to find in the Complainants’ favour would require the parties to relitigate the same issues that were thoroughly litigated in the BC Provincial Court: para. 99. The Tribunal would have to re-weigh the same evidence that was before the Court, and reach a different conclusion. These inconsistent results would “undermine the credibility of both the Tribunal and Provincial Court processes, and diminish their authority, credibility and aim of finality”: X at para. 99; citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63. This is precisely what the principles underlying s. 27(1)(f) of the Code seek to avoid.
[27] I am satisfied that the substance of this human rights complaint has been appropriately dealt with by the BC Provincial Court. It is dismissed under s. 27(1)(f) of the Code.
III CONCLUSION
[28] Before I conclude, I must address the Complainants’ submission that the Tribunal had asked the Province to apply to dismiss the complaint. They argue that this “was an invitation to further burden the Complainants without due process relating to the complaints”. Respectfully, this is an inaccurate and problematic description of the Tribunal’s process.
[29] Under its Case Path Pilot, the Tribunal does not ask a respondent to file a dismissal application; it allows them to. If the respondent opts to file the application, then the complainant has a full and fair opportunity to participate in the process. The Tribunal decides whether to dismiss a complaint based on arguments and evidence submitted by all parties, in a context where the respondent bears the burden. There is no denial of “due process”. In allowing the application, the Tribunal does not predict its outcome.
[30] In this case, MCFD has persuaded me that this complaint does not warrant the time and expense of a hearing in circumstances where the issues it raises have been substantially, thoroughly, dealt with by the BC Provincial Court. The complaint is dismissed under s. 27(1)(f) of the Code.
Devyn Cousineau
Vice Chair
[1] The Ministry says the trial was 17 days, which corresponds with the cover sheet of the Provincial Court’s judgement. However, in the decision, the judge says that the trial was 22 days: para. 12. Nothing turns on this.