The Grandparents v. BC Ministry of Children and Family Development, 2025 BCHRT 47
Date Issued: February 26, 2025
File: CS-000776
Indexed as: The Grandparents v. BC Ministry of Children and Family Development, 2025 BCHRT 47
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:
The Grandparents
COMPLAINANT
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)(c) and 27(1)(d)(ii)
Tribunal Member: Robin Dean
Counsel for the Complainant: Aleem Bharmal, KC
Counsel for the Respondent: Carmelle Dieleman
I INTRODUCTION
[1] I begin with a warning that these reasons for decision mention child sexual abuse and exploitation.
[2] The Grandparents allege that the Ministry of Children & Family Development [ MCFD ] discriminated against them in the area of services based on religious belief, contrary to s. 8 of the Human Rights Code . They say that MCFD denied them guardianship of their grandchild [ Grandchild ] based on an erroneous belief that the Grandparents were members of a religious cult which encouraged the sexual exploitation and abuse of children. The Grandparents also say that MCFD “mistreated” them by ignoring their communications and failing to keep them informed of the ongoing child guardianship process. The Grandparents eventually adopted the Grandchild in June 2021.
[3] MCFD denies discriminating and submits that the Tribunal should dismiss the complaint under s. 27(1)(c) and 27(1)(d)(ii) of the Code . It says that there is no reasonable prospect that the complaint will succeed because there is no adverse impact attributable to MCFD and no nexus between the Grandparents’ protected religious beliefs and the adverse impact alleged. In the alternative, MCFD says that there was a bona fide and reasonable justification for its actions, namely its legitimate concerns for the safety of the Grandchild and its legal obligations to prioritize her safety and wellbeing. Finally, MCFD takes the position that it would not further the purposes of the Code to proceed with the complaint as any discrimination was remedied when the Grandparents adopted the Grandchild.
[4] In my view, I can deal with this application to dismiss under s. 27(1)(c). I must therefore decide whether the complaint has no reasonable prospect of success.
[5] For the reasons that follow, I allow the application to dismiss. 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 BACKGROUND
[6] MCFD is an arm of the BC government with the authority and responsibility to deliver services to families and children in accordance with the Child, Family and Community Service Act [ CFCSA ]. The CFCSA provides that the “safety and well-being of children are the paramount considerations” in MCFD’s provision of services: s. 2. Section 2(b) of the CFCSA prioritizes keeping children with their families as the “preferred environment”, and s. 2(e) states: “kinship ties and a child’s attachment to the extended family should be preserved if possible”.
[7] The Grandchild was born in November 2016. MCFD removed the Grandchild from her Parents’ care six weeks after her birth, it says due to domestic violence and neglect concerns. MCFD subsequently sought a custody care order [ CCO ] under the CFCSA to permanently remove the Grandchild from her Parents and place her in the care of the Director of Child Protection. Because the CCO was not by consent, MCFD had to wait until the Parents had exhausted all appeals before custody of the Grandchild could be permanently transferred. While the CCO process was ongoing, the Grandchild was cared for by foster parents.
[8] Shortly before the Grandchild’s birth, a worker at a family services centre alerted MCFD that the Mother had told them that the Father grew up in a “cult” and that the Father believed children should be encouraged to engage in sexual relations. In an interview after the Grandchild’s birth, the Father denied believing that children should be encouraged to have sex, but he indicated that the Grandparents had raised him in a religious organization called the Family International. He stated that there had been allegations of child abuse by members of the Family International but that such abuse was not “condoned by the group as a whole.” The Father said the Grandparents left the Family International when the Grandfather discovered children being exposed to sexually explicit magazines.
[9] The Grandparents say that they hold non-denominational Christian beliefs, which are “less evangelical” than in their past and “closer to Reform Theology.” They say they access devotional material online, including through the Family International’s website, which they say promotes mainstream Christian beliefs. The Grandparents acknowledge that the Family International was accused of child abuse or condoning sex with minors, but they say that the Family International “was never found guilty of these charges.” They say that they would not condone any religious practices that would be harmful to children and that their contact with Family International was limited to using the Family International’s online resources.
[10] After the Grandchild was removed from her parents’ care, MCFD went about finding a permanent living situation for the Grandchild, which MCFD calls “family finding”. As a part of this process, MCFD contacts as many of the child’s family members as possible to speak with them confidentially and determine who might be able to support permanency for the child. Once a permanent option is identified, MCFD undertakes a detailed assessment of the proposed guardians. For an adoption this includes prior contact checks, criminal record searches, physician’s reports, references, interviews of the applicants, interviews of anyone else living in the home, and a written family assessment.
[11] In May 2017, MCFD says the Grandparents first expressed a desire to care for the Grandchild. MCFD says the Parents were not supportive of the Grandparents having care of the Grandchild. At that time, the Grandparents told MCFD that they had been but were no longer a part of the Family International.
[12] On May 9, 2017, MCFD checked its records to determine if MCFD had any prior contact with the Grandparents. It discovered that the Grandparents had 11 children and that MCFD had been called about the Grandparents multiple times in the 1980s and 1990s. The reports included several allegations of inadequate living conditions. Other reports related to the children soliciting donations for the Family International and concerns about the family’s involvement with the Family International. One report said that there was a rumor the children were forced to perform “sexual favours to lure people into their cult”. All the reports had been closed by MCFD. However, MCFD says these reports still posed a concern when determining who should care for the Grandchild, particularly given the similarity between some of the reports and what the Mother had told the family services centre worker about the Father’s beliefs.
[13] In May 2017, a “family finder”, who was employed by MCFD to explore potential options for the Grandchild should the CCO be granted, asked the Grandparents for the contact information of their children, which the Grandparents declined at that point to provide. Eventually the Grandparents provided this information to MCFD in 2019.
[14] The Grandparents say that MCFD interviewed them in June 2017, at which time they told MCFD that they held “basic Christian beliefs.” The Grandparents say they were advised that there would be a family conference to discuss permanency options for the Grandchild. During the interview, they say they made it clear to MCFD that they wanted guardianship of the Grandchild. MCFD says that the Grandparents said they could keep her safe from the Parents, suggesting that they could move and not disclose their address.
[15] The Grandparents say that following this interview, they tried to get updates from MCFD several times, but MCFD did not reply to their communications. Near the end of July 2017, MCFD told the Grandparents that there would be no family conference. MCFD explains that the conference was put on hold pending the CCO process.
[16] According to MCFD, during the trial to obtain the CCO, which took place in the summer and fall of 2017, the Father testified that the Grandparents were affiliated with the Family International and that he had no knowledge of the Grandparents ever leaving the organization. When asked about his exposure to sexually explicit material as a child, MCFD says, the Father testified that the Grandfather had kept such material “under lock and key.” The materials before me indicate that MCFD understood the Father’s testimony to suggest that the Grandfather possessed child pornography when the Father was growing up, which the Grandfather vehemently denies.
[17] The BC Provincial Court granted the CCO in November 2017.
[18] After the CCO was granted, the parents pursued appeals all the way to the Supreme Court of Canada, which ultimately denied leave to appeal. MCFD says that the Grandparents continued to express an interest in custody of the Grandchild during this time, but as the appeals process was ongoing it could not transfer permanent custody of the Grandchild. During the appeals process, the permanency planning process was put on hold.
[19] The Grandparents say that while the trial was ongoing, they tried to communicate with MCFD to get information on the results of the trial as well as their written request for guardianship. In November 2017, the Grandparents approached the Ombudsperson for intervention, they say because of MCFD’s non-responsiveness. They say they learned that the CCO was granted November 17, 2017, three days after the Provincial Court issued its decision.
[20] In the materials before me is a November 2017 email from MCFD to an advocate for the Grandparents explaining that they would not be home studying the Grandparents for temporary custody. The email lists several reasons for the decision, including:
a. the Grandparents “continue to be active in a Fundamentalist cult”;
b. the Father alluded to the Grandfather having child pornography during trial;
c. the Grandfather was aggressive and confrontational with MCFD counsel during the trial;
d. MCFD’s concern about the Parents kidnapping the Grandchild should the Grandparents have custody of her;
e. the Grandparents saying that they could “disappear” with the Grandchild;
f. possible concerns about collusion between the Grandparents and the Parents; and
g. the high likelihood that the Parents would appeal the CCO decision.
[21] Further, MCFD says it made the determination that it would be in the best interests of the Grandchild to remain in the temporary custody of the Foster Parents while the appeals were ongoing, given the Grandchild’s attachment to the Foster Parents and the Foster Parents’ other children.
[22] The Grandparents deny that the Grandfather was aggressive with MCFD counsel or said that they could “disappear” with the Grandchild.
[23] While the appeals related to the CCO were ongoing, the Grandparents had access visits with the Grandchild.
[24] After November 2017, MCFD says, the Grandparents were in Mexico for five months. The Grandparents contacted MCFD in April 2018, and MCFD told the Grandparents that they were still awaiting the outcome of the appeal. The Grandparents say this is the first time they learned that the Parents had appealed the CCO to the BC Supreme Court.
[25] In June 2018, the BC Supreme Court confirmed the CCO, and MCFD recommenced its process to find a permanent living situation for the Grandchild through family finding. The Grandparents say they found out about the BC Supreme Court’s decision from the news.
[26] The Grandparents say that in July 2018, MCFD told them that they were not being considered as guardians for the Grandchild because they were in a religious cult, referring to the Family International. MCFD apparently told the Grandparents that their home would be a dangerous environment in which to raise the Grandchild. MCFD said they would send the Grandparents a letter explaining the reasons for their decision, but the Grandparents never received such a letter.
[27] MCFD denies this statement was made and says that a new family finding team was constituted. This team considered all the Grandchild’s extended family, including the Grandparents, regardless of the decisions of the temporary placement team.
[28] The Grandparents say they approached their MLA at the end of July 2018 to assist them in obtaining reasons from MCFD as to why they were not being considered as guardians. The Grandparents say that no reason was given when they were contacted by MCFD one month later.
[29] In August 2018, the Grandparents went to MCFD’s office, which was in another part of the Province from where they live, in order to speak with the MCFD representatives in charge of the Grandchild’s case. They say MCFD told them they were too busy to speak with them. Instead, the Grandparents’ children provided MCFD with letters of reference for the Grandparents regarding their upbringing and their desire to have the Grandchild as part of the family.
[30] While family finding was ongoing, the Grandparents had access visits with the Grandchild.
[31] MCFD says that in January 2019, the Grandparents’ advocate advised MCFD that the Grandparents did not want to be considered further as a permanent placement option for the Grandchild.
[32] In February 2019, MCFD advised the Grandparents that no one had come forward to proceed with the application process for permanent custody of the Grandchild; MCFD was therefore re-canvassing extended family members before looking outside the family for placement options. In March 2019, MCFD received the Grandparents’ application under s. 54.1 of the CFCSA , for the permanent transfer of custody of the Grandchild, which, as I understand it, is different from an adoption application.
[33] During a home study, in September 2019, the Grandparents expressed an interest in adopting the Grandchild and submitted an adoption application in December 2019, which MCFD says further delayed the permanency process.
[34] The Grandchild began visits in the Grandparents’ home in January 2020 when the Grandparents’ clean criminal record check came back from Mexico.
[35] MCFD received questionnaires from and interviewed the Grandparents’ children regarding their views on the Grandparents adopting the Grandchild. All the Grandparents’ children, except for the Father, supported the Grandparents adopting the Grandchild.
[36] In June 2020, the home study of the Grandparents was completed, which recommended the Grandparents be approved for adoption.
[37] In September 2020, the Grandchild went into notice of placement for adoption with the Grandparents. In June 2021, the Grandparents adopted the Grandchild. MCFD says the adoption process was somewhat delayed due to difficulties the Grandchild and Foster Parents had with the transition as well as the start of the COVID-19 pandemic in March 2020.
III DECISION
A. Section 27(1)(c) – No reasonable prospect of success
[38] MCFD applies to dismiss the Grandparents’ complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c) The onus is on MCFD to establish the basis for dismissal.
[39] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[40] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence ” : Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan , 2013 BCSC 942 at para. 77 .
[41] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority , 2021 BCSC 2176 at para. 20 ; SEPQA v. Canadian Human Rights Commission , [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 [ Hill ] at para. 27 .
[42] To prove their complaint at a hearing, the Grandparents will have to prove that (1) they have a sincerely held religious belief, (2) they were adversely impacted in connection with MCFD’s services, and (3) their religion was a factor in that adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33. If they did that, the burden would shift to MCFD to justify the impact as a bona fide reasonable justification. If the impact is justified, there is no discrimination.
[43] Turning to the allegations that MCFD was not sufficiently responsive to the Grandparents during the CFCSA proceedings, I am satisfied these allegations have no reasonable prospect of success. There is nothing in the materials before me that suggests a connection between any delays in communication and the Grandparents’ religious beliefs. Rather, MCFD says that it had solely non-discriminatory reasons for any delay – i.e. the busy caseloads of MCFD employees. Given the lack of evidence to the contrary, I am satisfied that the Grandparents have not taken their allegations out of the realm of speculation and conjecture.
[44] In terms of withholding temporary guardianship of the Grandchild, MCFD says that the Grandparents have no reasonable prospect of proving an adverse impact attributable to MCFD. Any delay in gaining custody of the Grandchild, MCFD says, was due to the Parents’ estrangement from the Grandparents, the complex CFCSA proceedings, and the Grandparents’ own actions. Further, MCFD says that the Grandparents have no reasonable prospect of proving a nexus between the Grandparents’ religious beliefs and any alleged adverse impact. It says that MCFD was focused at all times on the safety and well-being of the Grandchild.
[45] Accepting for the sake of this application that the Grandparents could prove their case, the complaint has no reasonable prospect of success because I am satisfied that MCFD is reasonably certain to prove its actions were justified: Purdy v. Douglas College and others , 2016 BCHRT 117 at para. 50.
[46] To justify the adverse impacts at a hearing, MCFD would have to prove that: (1) it adopted the standard for a purpose rationally connected to function being performed, (2) it adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and (3) the standard is reasonably necessary to the accomplishment of that legitimate purpose. This third criterion encompasses MCFD’s duty to accommodate to the point of undue hardship: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 [ Grismer ] at para. 20.
[47] The Grandparents say that the justification defence must fail because MCFD has not demonstrated that it would have been impossible to accommodate the Grandparents without experiencing undue hardship. They do not say what accommodations should have been offered. However, I take from the Grandparents’ argument that the first two Grismer criteria are not in dispute. Therefore, I turn to a consideration of whether MCFD is reasonably certain to prove the third criterion. The third Grismer criterion requires that MCFD demonstrate it could not have done anything else reasonable or practical to avoid the negative impact on the Grandparents: British Columbia (Public Service Employee Relations Comm.) v. BCGSEU , 1999 CanLII 652 (SCC), [1999] 3 SCR 3 at para. 38.
[48] At the time temporary custody was being decided, MCFD says it believed that:
a. the Grandparents had been or were affiliated with an organization that encourages the sexual abuse of children;
b. the Grandfather had child pornography when the Father was a child;
c. the Grandfather was aggressive and confrontational with MCFD counsel during the trial;
d. the Parents might kidnap the Grandchild should the Grandparents have custody of her; and
e. the Grandparents might disappear with the Grandchild.
[49] The materials indicate that MCFD was also guided by its belief that the CCO would be appealed and that the Foster Parents were the best placement for the Grandchild at the time.
[50] I am satisfied that even if the Grandparents’ perceived religious beliefs were a factor in the decision to withhold temporary custody of the Grandchild, those perceived religious beliefs, along with other factors, gave rise to MCFD’s concern about the safety and wellbeing of the Grandchild, and MCFD is reasonably certain to prove that the actions it took regarding those concerns were justified. In my view, MCFD is reasonably certain to prove that withholding temporary custody of the Grandchild was appropriate and proportionate given these concerns and the framework of the CFCSA .
[51] The Grandparents cite RR v. Vancouver Aboriginal Child and Family Services Society (No. 6) , 2022 BCHRT 116 at para. 303, where the Tribunal says:
Child protection intervention which derives from stereotype, prejudice, or assumptions that a person is unsafe to parent because of their protected characteristics cannot be justified because it imposes a standard that is not reasonably necessary to achieve the purpose of protecting children: Meiorin at paras. 57-59; Grismer at para. 31. This type of connection is often subtle, unconscious, and must be inferred: Campbell (No. 4) at para. 102.
[52] I am not satisfied that MCFD’s actions here indicate that they were guided by stereotype or assumptions about the Grandparents’ religious beliefs. Rather, MCFD had credible information that an organization that the Grandparents had been or were affiliated with encouraged child sexual abuse. The Ministry was at all times properly focused on the impact that the Grandparents’ perceived religious affiliation may have on the Grandchild and were not operating from stereotype. In that context, MCFD is reasonably certain to prove temporary guardianship of the Grandchild was withheld based on what was in the best interests of the Grandchild at that time, taking as paramount the security of the Grandchild, as MCFD was required to do under the CFCSA.
[53] I grant the application to dismiss under s. 27(1)(c).
IV CONCLUSION
[54] While the process of finding permanent placement for the Grandchild was undoubtedly difficult for the Grandparents, on the materials before me, I am satisfied that MCFD is reasonably certain to prove it could not have done anything less in order to avoid the negative impact on the Grandparents in light of the evidence MCFD relied on in making its decision and the paramount purpose of the CFCSA , which is the protection of children.
[55] I allow the application to dismiss. The complaint will not proceed.
Robin Dean
Tribunal Member