NOVA SCOTIA COURT OF APPEAL
Citation: R.B. v. Children’s Aid Society of Halifax, 2003 NSCA 49
Date: 20030501
Docket: CA 194141
Registry: Halifax
Between:
R.B.
Appellant
v.
Children’s Aid Society of Halifax
and S.F.
Respondents
Publication Ban: Publication Ban pursuant to s. 94(1) of the Children and Family Services Act, S.N.S. 1990, c. 5
Revised decision: The text of the decision has been corrected according to the erratum released May 8th, 2003.
Judges: Cromwell, Chipman and Hamilton, JJ.A.
Appeal Heard: April 17, 2003, in Halifax, Nova Scotia
Held: Appeal dismissed and cross-appeal allowed per reasons for judgment of Chipman, J.A.; Cromwell and Hamilton, JJ.A. concurring.
Counsel: Donna Franey, for the appellant
Peter McVey, for the respondent, Children’s Aid Society of Halifax
S.F. not appearing
PUBLISHERS OF THIS CASE PLEASE TAKE NOTE THAT s. 94(1) OF THE CHILDREN AND FAMILY SERVICES ACT APPLIES AND MAY REQUIRE EDITING OF THIS JUDGMENT OR ITS HEADING BEFORE PUBLICATION.
SECTION 94(1) PROVIDES:
94(1) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or a relative of the child.
Reasons for judgment:
[1] This is an appeal and cross-appeal from a decision of Dellapinna, J. in the Supreme Court (Family Division).
[2] The appellant, R.B., is the paternal grandmother of L.F., a child born to the respondent, S.F., on February ..., 2000 (Editorial note- date removed to protect identity) , in the Province of Nova Scotia. The child’s biological father is C.B., the appellant’s son. C.B. took no part at any stage of the legal proceedings leading to this appeal.
[3] The primary caregiver of the child, L.F., was her mother, S.F., up until January 15, 2002, when she was taken into care by the respondent Agency. On January 17th, 2002, the Agency commenced a protection application alleging the child to be in need of protective services. An interim hearing was held on February 4, 2002, a pre-hearing conference on March 19, 2002, at which the mother attended, and on June 19, 2002 an unopposed disposition hearing was held, following which Dellapinna, J. granted an order for permanent care and custody of the child with the Agency. The appellant played no part in these proceedings although she was aware, through contact with the Agency, that they were under way. She had contact and parenting responsibilities for the child in Ontario for much of the period between June and December, 2000, but had not seen the child since, although she continued to have telephone contact with the child’s mother.
[4] On July 22nd, 2002, the appellant filed a notice of appeal with respect to the order for permanent care and custody but her application for standing with respect to this was dismissed on jurisdictional grounds by a Chambers judge of this Court reported at (2002), 207 N.S.R. (2d) 394; 2002 NSCA 108.
[5] On July 23rd, 2002, the appellant filed an application to the Supreme Court (Family Division) seeking standing and leave to apply to terminate the order for permanent care and custody. After withdrawing the application she subsequently had it placed back on the Court docket, and the matter came to a pre-trial conference on October 24, 2002, before Dellapinna, J. It was there agreed that the issues of standing, leave, and change in circumstances as referred to in s. 48(10)(a) of the Children and Family Services Act, S.N.S. 1990, c. 5, would be heard first, leaving aside consideration of the child’s best interests as referred to in s. 48(10)(b), to be dealt with if the appellant was successful on the first three issues.
[6] On December 5, 2002, a full day hearing was held before Dellapinna, J. to determine whether the appellant should have standing and leave, and to determine whether her circumstances had changed since the making of the order for permanent care and custody.
[7] In his decision dated January 13, 2003, Dellapinna, J. first considered the appellant’s application to be joined as a party under s. 36(1)(f) of the Act for the purpose of a termination application, and her application for leave under s. 48(6)(c) to do so. He reviewed the appellant’s circumstances.
[8] The appellant is the paternal grandmother of the child. She is 42 years of age. She has had three children; the father of the child at issue, a nine-year old special needs son and a daughter and her husband with whom she and her special needs son reside in Mississauga, Ontario.
[9] The appellant cared for L.F. for a week in April 2000. In June 2000 her son C.B. and L.F.’s mother moved with the child to Ontario. The mother and child lived with the appellant for about two months, during which time the appellant performed numerous care giving responsibilities. In mid August of 2000 the child and her mother moved out of the appellant’s home, and her son C.B. moved in. In September, 2000, the mother left the child with the appellant who assumed all parenting responsibilities toward the child until December, 2000, when the child’s mother took her back to Nova Scotia. The appellant has not seen the child since.
[10] In January 2002 the mother, S.F., consented to the child being placed in the temporary care and custody of the Agency and so advised the appellant.
[11] During the time that the proceedings were under way to obtain the order for permanent care and custody, the appellant knew of them, and had been in communication with the Agency. She told the Agency’s worker that her only concern in presenting a plan for the child was her special needs son who was autistic. She said that she might have trouble caring for him and for L.F. at the same time. She was advised that she should seek legal advice and in due course advised the Agency that she had obtained an appointment to do so. She, at one time, expressed interest in coming to Nova Scotia to visit the child, and although advised that access was possible, she did not further pursue the matter of a visit with the child. As late as March 7th, 2002, she left a voice mail message with the Agency stating that she did not think she was going to be able to care for the child because of the special needs of her son. She last had telephone contact with the Agency prior to the making of the permanent care order in April, 2002.
[12] Dellapinna, J. observed that no explanation was given why the appellant did not apply for party status prior to the disposition hearing. Nor was an explanation given why she made no further attempt to contact the Agency after April 10, 2002 by which time she knew L.F. had been in the care of the Agency for approximately three months. She did not follow through with the retention of legal counsel. Her next contact with the Agency was in July 2002 at which time she learned that L.F. was placed in the permanent care and custody of the Agency.
[13] The trial judge noted that the appellant wished to eventually secure custody of L.F. and have her live with her together with her special needs son and her daughter and son-in-law. There was no indication what role, if any, the appellant contemplated for L.F.’s parents while the child was in her custody, nor was there any indication of how permanent the living arrangements with the daughter and son-in-law would be.
[14] After reviewing case law, the trial judge referred to s. 2(2) of the Act referring to the best interests of the child as the paramount consideration. A party applying for party status and leave, he held, must show more than a tentative connection to the child. The evidence must show that the person seeking leave offers a reasonable alternative to the permanent removal of the child from her parents. There must be a reasonable possibility that when compared with other alternatives, the welfare of the child may be enhanced by granting leave.
[15] The trial judge concluded that the appellant, as L.F.’s grandmother, had a relationship with her, albeit distant in time, and that she offered a plan which showed a reasonable alternative to the permanent removal of L.F. from her mother’s care. This plan, he said, showed a reasonable possibility that the child’s welfare may be enhanced by granting leave and the hearing of the appellant’s evidence.
[16] The trial judge then addressed the question whether there was a change in circumstances.
[17] Dellapinna, J. had before him two affidavits sworn by the appellant - one on July 23rd, 2002, in support of her initial application and her supplementary affidavit sworn on December 4, 2002. He had her viva voce testimony as well as affidavits and testimony from representatives of the Agency. He considered evidence from her that she had, three weeks prior to the hearing of the application, placed her special needs son in a school which she claimed was better equipped to deal with his behaviour. The child was in the school from approximately 8 a.m. until 4 in the afternoon. The only other change about which she testified was that a change in his medication some five weeks prior to the hearing had brought about a change in his behaviour including fewer tantrums. There was also evidence that as late as October, 2002, the appellant was required to call the police to quell disruptive behaviour of her special needs son.
[18] Dellapinna, J. concluded that the appellant had not satisfied the burden of showing that there had been a change in circumstances since the order for permanent care and custody. He did not regard the very recent changes as being material changes contemplated by s. 48(10)(a). They were but two of many adjustments that might have to be made in the appellant’s care for her son. It was unclear and uncertain how long any of them would operate to improve the conditions which had originally given rise to her concern. No evidence had been offered respecting any change in L.F.’s circumstances. The trial judge found that the appellant had not established a change in circumstances as contemplated by s. 48(10)(a).
[19] Although the appellant had failed to meet the requirements for terminating the order, Dellapinna, J. went on to consider her relationship with the child and concluded that it was not in the child’s best interests to further delay final disposition of the child’s case pursuant to the permanent care order.
[20] The appellant appeals to this Court claiming that Dellapinna, J. erred by failing to properly apply the test for a change of circumstances to the evidence as required by s. 48(10)(a) of the Act, and that he erred by making a determination regarding best interests of the child when, by agreement, evidence had not yet been presented on that issue.
[21] The respondent Agency cross-appeals, contending that the trial judge erred in giving the appellant standing as a party pursuant to s. 36(1)(f) of the Act and in granting leave to apply to terminate the order for permanent care and custody within the time frame specified in s. 48(6)(c)(i) of the Act.
Cross-Appeal
[22] I propose to address the cross-appeal first, because if the respondent is correct in its contention that the appellant should not have been granted standing or leave, the appeal is moot and need not be decided.
[23] Section 36(1) of the Act provides that the parties to a proceeding pursuant to ss. 32 to 39 include “any other person added as a party at any stage in the proceeding pursuant to the Family Court Rules” (s. 36(1)(f)). This provision certainly enables the joinder of a person who did not participate in the proceeding resulting in the order for permanent care and custody but who proposes, as a candidate ready to care for the child, to make a termination application. Rule 5.09 of the Family Court Rules provides:
5.09 Any person may, with leave of the court and subject to enactments respecting confidentiality, intervene in a proceeding and become a party thereto where, such person
(a) claims, and to the satisfaction of the court by the filing of an affidavit containing the grounds for the intervention, can show a direct interest in the subject matter of the proceeding, concerning the enforcement of the judgment therein; or
(b) has a right to intervene under an enactment or Rule.
[24] Section 48(3) of the Act provides for the application by a party to a proceeding for termination of an order for permanent care and custody. Section 48(6)(a) provides that no party other than the Agency may do so within thirty days of its making and s. 46(6)(c)(i) provides that except with leave of the court such an application may not be made within five (5) months following that thirty (30) day period.
[25] Dellapinna, J. recognized that the appellant’s application for party status could not be considered independently from her application for leave. He referred to the following from the decision of Bateman, J.A. in I.C. et al. v. Children’s Aid Society of Shelburne (2001), 196 N.S.R. (2d) 70; N.S.J. No. 260 (Q.L.)(N.S.C.A.):
[43] Had the judge entertained the Cs' application for party status pursuant to s. 36(1)(f), what factors would have been relevant? In my view the question cannot be considered independently of the Cs' intention to use that status to apply for leave to terminate the permanent care order. In the circumstances of this case it is appropriate to consider the application for joinder as a party together with the application for leave to apply to terminate the permanent care order. It would be pointless to grant party status only to deny leave to the Cs to make application to terminate.
[44] A significant feature of our legislation is that it permits any "party" to make application to terminate the permanent care order, subject to the leave requirements. The safeguard which prevents those with only a tentative connection to the child from intervening as parties is the requirement for leave.
[26] In my opinion, it is appropriate here to address the cross-appeal by considering the appropriateness of the grant by the trial judge of standing and leave together as one issue.
[27] After referring to the need for the safeguard of leave referred to by Bateman, J.A. as preventing those with only a tentative connection with the child from intervening after a permanent care order, Dellapinna, J. addressed the test to be applied before party status and leave was granted. He referred to a number of cases. Those dealing with applications for standing and leave by extended family members involved applications made before a permanent care order was granted.
[28] The test articulated by Dellapinna, J. as applicable to the situation before him was that the person seeking standing and leave should be able to offer a reasonable alternative to the permanent removal of the child from the parents. In determining this, the court must ascertain whether there is a reasonable possibility, when compared with other alternatives, that the welfare of the child may be enhanced by giving leave.
[29] The trial judge concluded that although the appellant had a distant-in-time relationship with L.F., she was her grandmother, and presented a reasonable alternative to the permanent removal of the child from the mother’s care. It was on this basis that he granted party status and leave.
[30] The presentation of a reasonable alternative by a family member as an appropriate consideration in granting party status and leave was considered appropriate by the courts in applications made prior to a permanent care order. See Minister of Community Services v. T.B. (1994), N.S.J. No. 649 (Q.L.)(F.C.); Children’s Aid Society of Halifax v. T.C. (1996),152 N.S.R. (2d) 277; N.S.J. No. 597 (Q.L.)(F.C.). These cases were relied on by the trial judge, erroneously in my view, in addressing the entirely different situation which presented itself to him.
[31] I accept the respondent’s submission that Dellapinna, J. erred in principle by failing to recognize that after a permanent care order has been granted, a more onerous test applies to one who seeks party status and leave to make an application to terminate such a permanent care order, than is the case when such an application is made for status prior to the granting of a permanent care order.
[32] In I.C., supra, foster parents in whose care the child had been for three and one half years since birth made an application to be joined as parties and for leave seeking to terminate a permanent care order. Their application to the Family Court was dismissed, but their appeal to this Court was allowed.
[33] Bateman, J.A., for the Court, referred to s. 36(1)(f) of the Act, providing for joinder of a party at any stage of a proceeding, and s. 48(3) dealing with termination applications. At ¶ 22 she referred to Annotated Children’s and Family Services Act, 1991 by D. A. Rollie Thompson, a part of which commencing at p. 248 states:
Commentary: Under the former Act, status to bring a termination application was restricted to three classes of parties, "and no other person": the agency with care and custody, a parent of the child, or a person who received or was entitled to receive a Notice of Taking Into Care. . . .
The new Act widens standing to apply for termination, empowering any "party" to bring the application under this subsection. Thus, any person qualifying as a "party" under Section 36 in the protection proceeding has the necessary status to commence the application. Included is any person who was served as a "parent or guardian", as well as any person who obtained standing with leave pursuant to Section 36(1)(f) in the proceeding that terminated in the permanent wardship order. . . . A foster parent who has cared for the child "continuously during the six months immediately before the hearing or application" must also be served with notice of an application to terminate or to vary access, although Section 36(4) makes clear that such a foster parent is not a "party" and hence cannot initiate an application under this subsection.
Lastly, in this analysis of who is a "party", a relative who was not involved at the prior stages of the proceeding may seek leave to be added as a party, pursuant to Section 36(1)(f), in order to enable him or her to make a termination application. For example, a relative located in another province may learn of the child becoming a permanent ward and may wish subsequently to seek custody of the child. Under the new Act, that relative can seek to obtain party status, to present a plan to the Court. Presumably the Court would have to be satisfied of the reasons for the absence of prior involvement and of the viability of the proposed plan, in order to grant leave in such a case. . . (Emphasis added)
[34] After noting that the foster parents are not generally parties in the original proceedings, Bateman, J.A. agreed with Professor Thompson that a person who did not participate in the original proceedings may apply under s. 36(1)(f) for the purposes of commencing a termination application. At ¶ 34 and 36, Bateman, J.A. said:
34 Once a permanent care order has been made there is a shifting of focus to the best interests of the child, not in the context of the child and a hypothetical care giver offered as an alternative to the parent, but taking into account the new environment the child has come to know.
. . .
36 Generally, once a permanent care order is made, all decisions affecting the child are within the discretion of the Agency. This is so because the Agency then stands in the place of the parents:
47(1) Where the court makes an order for permanent care and custody pursuant to clause (f) of subsection (1) of Section 42, the agency is the legal guardian of the child and as such has all the rights, powers and responsibilities of a parent or guardian for the child's care and custody.
[35] At ¶ 48 Bateman, J.A. points out that the test to be applied on a leave application is not set out in the Act and has received little judicial consideration. Generally such applications are made by a parent or person from whom the child has been apprehended, and who now seeks to demonstrate a change of circumstances. In such a context, the applicant must adduce sufficient evidence to warrant a hearing and thereby put the Agency plans on hold.
[36] At ¶ 52 Bateman, J.A. identified nine compelling circumstances shown by the appellants making it necessary in the child’s best interests to invoke the court’s jurisdiction in favour of the foster parents for joinder and leave. While generally Agency decisions respecting placement should be free from court intervention, there are circumstances such as were then before the court where it may be appropriate for the court to exercise a supervisory jurisdiction, she said.
[37] The best interests of the child is the paramount consideration; s. 2(2) of the Act. Although the Act lays down no test for joinder and leave at any given time and draws no specific distinction in s. 36 between applications before and after an order for permanent care has been made, a sharp distinction is recognized in the Act between proceedings before and after a permanent care order has been given.
[38] An examination of s. 42 of the Act shows that prior to a permanent care order being made, the court is to exhaust all reasonable alternatives, including the consideration of less intrusive alternatives and if necessary to remove a child from the care of a parent or guardian, to consider placement with a relative, neighbour or other member of the community or the extended family. After the permanent care order has been made, the Agency becomes the legal guardian of the child with the mandate to seek a permanent placement for him or her, most often adoption. After such an order has been granted, although it may be terminated, there are a number of restrictions that apply: see s. 48(4) and (6).
[39] Having regard to the Statute and the case law, particularly I.C., supra, I am satisfied that the test for permitting standing and leave to one who is not a party and without prior involvement in the proceedings is more stringent than that applied by Dellapinna, J., ie. the “reasonable alternative” test.
[40] As the best interests of the child is always the paramount consideration, and as its application always involves a fact specific exercise, there must always be flexibility. Having so said, after a permanent care order is made, a non party with no prior involvement in the proceedings must, as a general rule, as in I.C., show compelling circumstances justifying status and leave. There are, as the court pointed out in I.C., supra, risks to the child of the delay inherent in granting standing to one, not previously involved in the proceedings, who seeks to present a new plan after the granting of a permanent care order. This same concern has been expressed by this Court even in the context of late attempts to submit new plans before the making of a permanent care order. See for example Family and Children’s Services of Kings County v. B.D. (1999), 177 N.S.R. (2d) 169; N.S.J. No. 220 (Q.L.) at ¶ 22-23. In I.C., supra the court not only found that there were compelling circumstances requiring the hearing of the termination application but also that in the circumstances of that case, the delay resulting in so doing “should not be a significant factor”.
[41] In my opinion, there were no compelling circumstances presented by the appellant in this case. She chose not to participate in the original proceedings. She had not seen the child in two years. She advised the Agency early in the proceedings that she was not a candidate for the child’s care, giving her reasons. Her circumstances were spoken of by the Agency’s representative in testimony at the disposition hearing.
[42] In his conclusion that the appellant met the “reasonable alternative” test, the trial judge recognized the shortcomings in the appellant’s position. On the very same evidence, he was satisfied that she had failed to show a change in circumstances as contemplated by s. 48(10)(a) of the Act. I am satisfied that this finding was amply supported by the evidence. In short, nothing had changed. The appellant only had a tenuous connection to the child. Her plan was presented late, and was not compelling, given the long time that had elapsed from her last contact with the child and the challenges she faced with her special needs son.
[43] In addition to applying too low a threshold, I am of the view that the trial judge failed to give adequate consideration to the risk of delay and uncertainty that would inevitably result from permitting a termination application to be heard on the merits here. Such risk, when balanced against the merits of the appellant’s plan, was simply too great to take. The child was nearly three years of age at the time of the hearing, and the inevitable delay of months at the least was too great a risk for her.
[44] In summary, I find that the trial judge erred in granting standing and party status in that he failed to apply the appropriate test - compelling circumstances - when the application is made by a non-party with no prior involvement in the proceedings, for the purposes of seeking termination of the permanent care order on the basis of a new plan. This test is to be distinguished from that appropriate for granting standing in custody proceedings or child welfare proceedings prior to a final disposition order being made. I would also find that the judge erred in principle in failing to give sufficient consideration to the impact of delay on the child by the granting of the application.
[45] I would allow the cross-appeal and set aside the order granting party status and leave for the purpose of bringing a termination application and in its place order that the appellant’s application be dismissed. In light of that disposition, it is not necessary to specifically consider the merits of the appeal. Consequently the appeal should be dismissed. I would make no order for costs.
Chipman, J.A.
Concurred in:
Cromwell, J.A.
Hamilton, J.A.