Court of Appeal

CASE NO.                                                   VOL. NO.                                                           PAGE

C.(I.) and C.(H.R.)                                           - and -                  CHILDREN’S AID SOCIETY OF

                                                                                                                    SHELBURNE COUNTY

(Appellants)                                                                                                                     (Respondent)

                                                                         - and -

A.(C.) and S.(D.)                                             -  and  -            CHILDREN’S AID SOCIETY Of

                                                                                                                    SHELBURNE COUNTY

(Appellants)                                                                                                                     (Respondent)

CA 170194                                                  Halifax, N.S.                                         BATEMAN, J.A.

CA 160632

             [Cite as: Children’s Aid Society of Shelburne County v.  C.A., 2001 NSCA 108]

APPEAL HEARD:                                         June 15, 2001

JUDGMENT DELIVERED:                        July 4, 2001

SUBJECT:                 Child welfare.

SUMMARY:              The 3 ½ year old special needs child was in the permanent care of the Agency but had resided with the appellants since birth.  They had been approved to adopt her.  When the Agency learned that some male members of the appellants' extended family had been accused of sexual assault, the incidents alleged to have occurred many years ago, and that the appellant foster mother had, several years ago, a longstanding affair with her father-in-law, who was one of the alleged abusers, they removed the child from the appellants' care.  The appellants applied to the Family Court to be joined as parties to the child welfare proceeding pursuant to s. 36(1)(f) or s.36(4) of the Children and Family  Services Act, S.N.S. 1990 c. 5 for the purpose of seeking to have the permanent care order terminated pursuant to s. 48(6) (leave to apply to terminate).  The appellants were told that they could not apply pursuant to s. 36(1)(f).  Their application pursuant to s. 36(4) was dismissed.

ISSUES:                     Did the judge err in failing to consider the parties’ application to join a proceeding pursuant to s.36(1)(f)?

RESULT:                   Appeal allowed.  Usually foster parents are not permitted to participate in a child welfare proceeding, save as provided in s.36(4) of the Act.  Where a permanent care order has been granted and the applicants are prospective adoptive parents who have had care of the child since birth, and where they have provided exemplary day to day care of the child, it is in the child's best interests that they be permitted to join the proceeding as parties and be granted leave to apply to terminate the permanent care order.