(FAMILY DIVISION)
Citation: Mi’kmaw Family and Children’s Services v. L.I.,, 2012 NSSC 412
Date: 20121212
Docket: SFPACFSA-065972
Registry: Port Hawkesbury
Between:
Mi’kmaw Family and Children’s Services
Applicant
v.
L.I. and B.L.
Respondents
Restriction on publication: 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:
“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 subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or relative of the child.”
Judge: The Honourable Justice Moira C. Legere Sers
Heard: July 5 and August 27, 2012, in Port Hawkesbury, Nova Scotia
Counsel: Robert Crosby, Q.C., for the applicant
Coline Morrow, for the respondent L.I.
Sam Moreau, for the respondent B.L.
By the Court:
[1] By Decision dated April 27, 2011, the two children who are the subject matter of this proceeding were placed in the permanent care and custody of the Mi’kmaw Family and Children’s Services with no order as to access.
[2] The applicant mother appealed this decision. The father abandoned his appeal.
[3] On November 23, 2011, the Nova Scotia Court of Appeal affirmed the Orders for Permanent Care and Custody pertaining to each of the children.
[4] The court allowed the mother’s appeal as it related to access, referring this issue of access by the appellant mother to her children back to the Supreme Court (Family Division).
[5] This matter has been delayed for final determination on the issue of access from November 23, 2011 to November 27, 2012 for a number of reasons:
a) in response to the Supreme Court Family Division’s offer, the parties unanimously choose to offer more evidence;
b)scheduling was delayed until all parties and counsel were available and ready to proceed;
c) a recognition of the need to put the mother in a position to call the latest information;
d)waiting for the release of a report concerning the oldest child’s behaviour; and
e) the release of Nova Scotia (Community Services) v. CB., 2012 NSSC 358 [CB] as it relates to “the best interests” .
[6] I tolerated these delays having considered the circumstances of these children. The children are in their permanent placement. A delay would not jeopardize their best interests nor would it cause a material change in their circumstances.
[7] This decision will address three issues:
1. Section 47 (2) of the Children and Family Services Act .1990,c.5 and it’s effect on the best interests test.
2. Evidence of Placement; and
3. Access after Permanent Care.
[8] The Court of Appeal made two brief references worthy of specific mention.
[9] First ,the court referred to the findings of Chief Justice MacDonald in Children and Family Services of Colchester County v. K.T., [2010] N.S.J. No. 474, at paragraphs 39 to 40 wherein he found that:
“‘a special circumstances’ under Section 47 2 (d) of the Children and Family Services Act may include a permanent placement with a family member, with a view to adoption by that family member, but involving some ongoing contact with the natural parent that was satisfactory to the adopting parents and which would not deter the adoption.”
[10] Secondly, the court found as follows:
“The judge in this case did not consider whether or not access by these children to their mother, the appellant, would jeopardize their placement, whether the potential adoption by the kinship caregivers might qualify as a special circumstances, or other special circumstance exists, or access would be in these children’s best interests. In my view those issues should be addressed.
Whether this will be done on the evidence presented to her at the final disposition hearing or with the calling of additional evidence will be a matter for the judge to determine , perhaps with the assistance of the parties.”
[11] At the final disposition hearing, having considered all the evidence, the issue of access was, in fact, considered and rejected.
[12] The reasons behind the decision to decline to preserve access between the biological parents and children, were not sufficiently articulated.
[13] First, I will review the law on best interests in the context of statutory interpretation; second I will identify the process that was followed.
[14] After referring to the evidence on which the decision to decline to grant access was based, I will deal with the new evidence that was introduced post final disposition and post appeal.
Legislative Authority
Access after Permanent Care
[15] Section 2(2) of the Act states:
“In all proceedings and matters pursuant to this ACT , the paramount consideration is the best interests of the child.”
Best Interests Defined
[16] Section 3(2) of the Act sets out the definition of best interests within the context of this provincial legislation:
“2) Where a person is directed pursuant to this Act, except in respect of a proposed adoption, to make an order or determination in the best interests of a child, the person shall consider those of the following circumstances that are relevant:
(a) the importance for the child's development of a positive relationship with a parent or guardian and a secure place as a member of a family;
(b) the child's relationships with relatives;
(c) the importance of continuity in the child's care and the possible effect on the child of the disruption of that continuity;
(d) the bonding that exists between the child and the child's parent or guardian;
(e) the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs;
(f) the child's physical, mental and emotional level of development;
(g) the child's cultural, racial and linguistic heritage;
(h) the religious faith, if any, in which the child is being raised;
(i) the merits of a plan for the child's care proposed by an agency, including a proposal that the child be placed for adoption, compared with the merits of the child remaining with or returning to a parent or guardian;
(j) the child's views and wishes, if they can be reasonably ascertained;
(k) the effect on the child of delay in the disposition of the case;
(l) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent or guardian;
(m) the degree of risk, if any, that justified the finding that the child is in need of protective services;
(n) any other relevant circumstances.
(3) Where a person is directed pursuant to this Act in respect of a proposed adoption to make an order or determination in the best interests of a child, the person shall take into consideration those of the circumstances enumerated in subsection (2) that are relevant, except clauses (i), (l) and (m) thereof. 1990, c. 5, s. 3.”
Other than subsection (j), all subsections of section 2 are relevant in this case.
[17] In Nova Scotia, we have the additional requirements set out in section 47 (2) of the Act.
[18] This section focuses the court’s attention on what the court must be concerned with when assessing questions of access after permanent care.
[19] I have highlighted that which I believe relevant to this case:
“Order for Access
47(2) Where an order for permanent care and custody is made, the court may make an order for access by a parent or guardian or other person, but the court shall not make such an order unless the court is satisfied that
(a) permanent placement in a family setting has not been planned or is not possible and the person's access will not impair the child's future opportunities for such placement;
(b)N/A
(c) the child has been or will be placed with a person who does not wish to adopt the child; or
(d) some other special circumstance justifies making an order for access.”
[20] We have a number of cases from different levels of court that deal with the relation of section 47(2) to the “best interests test”. These I refer to herein in chronological order:
Nova Scotia (Minister of Community Services) v. T.H., 2010 NSCA 63; (T.H.)
Children & Family Services of Colchester(County) v. K.T., 2010 NSCA 72; (K.T.)
L.B. v. Mi’kmaw Family and Children Services of Nova Scotia, 2011 NSCA 104; ( L.B.)
Nova Scotia (Community Services) v. C.B., 2012 NSSC 358; (C.B.)
[21] There are others: Nova Scotia (Community Services) v G.R., 2011 NSSC 88 (paragraph 44) and Nova Scotia (Community Services) v. L.H. & B.S., 2011 NSSC 41 (paragraph 47) that I need not refer to for the purpose of deciding this case.
[22] My purpose in addressing the first four cases is to sound the warning bell about the dangers inherent is the change in direction these cases appear to be taking our Family Courts.
[23] The cases are cited as authority to mandate and permit delays in assessing best interests, adjourn the best interests analysis (T.H.), restrict our interpretation of section 47(2) (K.T.) and subsequently avoid altogether a best interests analysis (C.B.).
[24] Starting with T.H., the court begins to read down, defer, adjourn or limit the ability and responsibility of the trial court or parents for that matter (inclusive of the Minister / Agency as parent) when addressing the best interests of the child. This approach, I will suggest, is contrary to the preponderance of legislative and case law precedent.
[25] Professor Thompson (Schulich School of Law, Dalhousie University) identifies in his annotation to K.T. the consequence of reading down or in his words “reading out” other subsections of section 47(2) if one interprets K.T. restrictively. (I will suggest a more inclusive interpretation is more congruent with substantive law).
[26] In his annotation of K.T. reported at 98 RFL (6th) 272, Professor Thompson state as follows:
“For parents or guardians seeking access after permanent care, the T.(K.) interpretation gives clause (a) of s.47(2) overriding importance. They must now focus their evidence upon that provision, rather than clause (d) which has been virtually read out of existence by the appeal court. There will have to be legal argument about the precise meaning of “permanent Placement in a family setting”, or “has not been planned or is not possible”, or “will not impair the child’s future opportunities for such placement “ It will be important for them to explore and test agency evidence about placement option and adoption possibilities in a practical way , rather than just accepting the usual kind of agency evidence like that given in T.(K.) itself at paras 60-64. Specialist family law judges , who might be sympathetic to a parent’s claim for access in a particular case, will need this kind of specific evidence to get past clause (a) in a child’s best interests.
[27] The danger of reading out other considerations is heightened in K.T. when the court adopts and endorses Fichaud J.’s comments at paragraphs 55 and 56 of T.H.
[28] In this case, Fichaud J. rejected the trial judges decision to restrict the adoption prospects of the children he placed in the permanent care of the Minister. Fichaud J. states at paragraph 56:
“The decision under appeal would preclude these legislated processes and standards for adoption. The role of the adoption court under ss73 and 78(1) would be eliminated. There would be no determination of the child’s best interests under s.78 (1) ( c). There would be no application of the adjusted adoption criteria for the best interest in s. 3(3) There would be no opportunity for a ministerial consent under s. 74 (7) and (8) There would be no real people for the adoption court to appraise as potential parents and no evidence of residence with the prospective adoptive family for the court to weigh, when the court decides whether adoption is in the child’s best interest.”
[29] In T.H. the trial judge had imposed conditions on placement in an effort to craft a placement plan that recognized what he found to be the children’s need to maintain contact with their biological parents. Clearly their age and stage of development played a significant part in his deliberations.
[30] The trial judge in an insightful commentary familiar to family court judges (paragraph 13 of T.H. ) struggled with the interplay of the “legislated” notion of “permanency planning “ for older children where real constraints may exist regarding adoptability.
[31] The trial judge in K.T. faced a similar crossroad in attempting to match the reality with the best interests of the children.
[32] Each judge met the limit of the law and according to the court, pushed it beyond it’s ordinary meaning.
[33] Either a parent has or has not addressed the identified risks in accordance with the section 45 time lines.
[34] If they have addressed the risks, the children must be returned without conditions. If they have not, permanency planning must take place (without conditions).
[35] That was all that was necessary for the purposes of assessing the trial judges decision in T.H.
[36] If the legislation does not address current reality, as some suggest, it is the legislature that bears the responsibility to keep the legislation current as we grow in our capacity to better understand these issues.
[37] The language of section 42 of the Act is clear. Rightly or wrongly, courts in final disposition proceedings have no authority to place conditions on Final Disposition Orders.
[38] While the reasoning found at paragraph 56 (in particular) in T.H. has been endorsed in K.T. and followed in C.B., this reasoning is obiter. It is based on a misapprehension of the adoption process.
[39] The consequence of this misunderstanding is very serious. It has started a momentum of reducing and limiting the trial judges discretion at the permanent care hearing as they undertake a best interests analysis.
[40] Adopting T.H., the court in K.T. said as follows:
“...further, it would be up to another judge in a later process to decide if a proposed adoption should be granted. (paragraph 2)”
[41] This will not happen.
[42] It is important for the integrity of the actual child protection and adoption process to find the source of this misapprehension.
[43] Going beyond the scope of what was required, the court in T.H. decided that one can delay a best interests analysis to an adoption hearing.
[44] Having suggested erroneously that this could be done, these comments were incorporated by the court in K.T., when discussing section 47(2) to be expanded in C.B. wherein Jollimore J. states at paragraph 48:
“A decision with regard to access following a permanent care order is not one which requires me to consider the children’s best interests.”
and at paragraph 49:
“According to subsection 47(2), I may not make an order for access unless I’m satisfied that one of certain circumstances enumerated in that subsection exists. Access may be available where an adoption isn’t planned or where some other special circumstances justifies the access order, for example....”
[45] By first reading down the best interests test in T.H. (unnecessarily) followed with a restrictive analysis of section 47(2) in K.T. on the court’ s ability to assess access in the context of a best interests analysis, a conflict develops within the legislation itself in the context of substantive law; a law that has evolved and adapted as courts struggle with the diversity and changing face of familial structures.
[46] This diversity was recognized in 1992 by Chief Justice Mc Lachlin in Young v Young:
Second, the test (best interests)is broad. Parliament has recognized that the variety of circumstances which may arise in disputes over custody and access is so diverse that predetermined rules, designed to resolve certain types of disputes in advance, may not be useful. Rather, it has been left to the judge to decide what is in the "best interests of the child", by reference to the "condition, means, needs and other circumstances" of the child. Nevertheless, the judicial task is not one of pure discretion. By embodying the "best interests" test in legislation and by setting out general factors to be considered, Parliament has established a legal test, albeit a flexible one. Like all legal tests, it is to be applied according to the evidence in the case, viewed objectively. There is no room for the judge's personal predilections and prejudices. The judge's duty is to apply the law. He or she must not do what he or she wants to do but what he or she ought to do.”
[47] And again:
“the ultimate test in all cases is the best interests of the child. This is a positive test encompassing a wide variety of factors, ...compatible with the best interests of the child..The judge must determine all factors relevant to determining what is in the best interests of the child.”
[48] If we widen the lens through which we look for a full view of substantive law in a contextual analysis, we see that a restrictive interpretation of K.T. places this and other decisions in conflict with the Federal and Provincial Legislation that occupies the family law field wherein the paramount concern is “ the best interests of the child” in it’s broadest sense.
[49] What is problematic in K.T. is the endorsement of the comments of Fichaud J. in Nova Scotia (Minister of Community Services) v. T.H., 2010 NSCA 63 as if they were true.
[50] The court appeared to be under the mistaken belief that a meaningful enquiry of best interests generally takes place in a judicial setting at the adoption stage of the proceedings. Thus it follows that at some point the court operated under the mistaken belief that an unfettered analysis of best interests would eventually take place.
[51] Relying on that mistaken assumption, Fichaud J. on behalf of the court, suggested that delaying or adjourning the assessment of best interests to the adoption stage (a future and uncertain date) met the legislative intent.
[52] This kind of best interests enquiry at the adoption stage rarely, if ever, happens. Nor is it designed to happen if one understands the legislation prescriptions in a factual reality.
[53] Fichaud J. appeared to be concerned that by imposing conditions of the placement in permanent care (refusing adoption), the role of the adoption court under sections 73, 78(1) and 78(c) would be eliminated.
[54] The offending paragraph (56) and the analysis that follows spoke to the competing roles of the final disposition court verses the adoption court.
[55] In reality, these two courts referred to are one and the same; they are responsible for both functions. It was an arbitrary and unnecessary distinction.
[56] Based on a misapprehension of the actual process of adoption these comments have the exact effect of reducing / limiting the trial judges discretion as they undertake a best interests analysis before adoption. They defer to an adoptions court as “the proper place” for such an expanded analysis when in fact this will not happen.
[57] This analysis in K.T. adopting conclusions in T.H. that one can adjourn the analysis of best interests to the adoption hearing offends the legislative intent and spirit of the Act as stated in the preamble wherein we are directed to respect the child’s sense of timing (the child’s sense of timing is unique); it offends the requirements and expectations set out in section 2 and 3 as well the subsequent interpretation of section 47(2) (a) (if interpreted as exclusive to other considerations).
[58] It is the child’s best interest, not the perspective of the various courts or parties, that is paramount.
[59] This analysis in T.H. and K.T. also offends section 45 of the Act in which the legislature sets out specific time limits beyond which we must not venture and within which we must be concerned with permanency planning for the children within our judicial view.
[60] It erroneously defers, adjourns and effectively denies for the child and any other interested party (except for the party proposed by the Minister), a meaningful enquiry into best interests as it is described in its broadest form.
[61] This prescribed approach essentially denies the child and other interested parties both access “to the court” and “access to justice”.
[62] This analysis takes from the court in the first instance the ability to exercise it’s responsibility to conduct a thorough and broad analysis at final disposition thereby eliminating an exhaustive review of best interests.
[63] This leaves the child(ren) almost absolutely at the mercy of the internal administrative adoptive process, virtually without judicial review.
[64] This approach, as I will outline, is incongruent with the actual process of adoption.
[65] In K.T., the court addressed our obligation to address best interests in sections 2 and 3 as well as adopting the comments of Gonthier J. In New Brunswick (Minister of Health & Community Services) v. M.L., [1998 S.C.J. No 52] and Abella J. in Nova Scotia (Minister of Health) v. J.J., 2005 SCR 177).
[66] However, by adopting the false assumptions in T.H. and incorporating them into K.T. adding a restrictive analysis of section 47(2), the court began a process that may significantly alter our ability to address best interests in the final disposition stage.
[67] This is not consistent with the comments of Gonthier J. who directs that courts must have sufficient information to assess access after permanent care and if not must direct further evidence be filed to ensure the court fulfills its duty to assess the best interests.
[68] Oland J. in L.B. moves in a more expansive direction when she emphasized the court’s responsibility to undertake a “meaningful enquiry” and articulate reasons why access after permanent care does or does not address the best interests of the child.
[69] Oland J.’s decision, while apparently inconsistent with the restrictions placed on the courts by T.H. and T(K) is coherent with the substantive body of law that describes the assessment of best interests as a “broad enquiry” not fettered as T.H. and T(K) may be interpreted to mean.
[70] As Gonthier J. said in paragraph 30 of New Brunswick (Minister of Health & Community Services) v. M.L. [1998 S.C.J. No 52]:
“This interpretation of the Act is consistent with what was intended by the legislature, that is, the best interests of the child. Any other interpretation would leave the question of access entirely in the Minister's hands. This would not be desirable, in that the children might suffer, for example, from administrative oversights, lack of communication or tensions between the people involved (see Re H.I.R. (1984), 37 R.F.L. (2d) 337 (Alta. C.A.), at p. 344; Children's Aid Society of Winnipeg v. N. (1979), 9 R.F.L. (2d) 326 (Man. C.A.), at p. 331).”
[71] To illustrate the misapprehension of the adoption process as envisioned by Fichaud J., a look at the actual adoption process is in order. Fichaud said in paragraph 56:
“The role of the adoption court under sections 73 and 78(1) would be eliminated.”
[72] Section 73 simply states as follows:
“An application for adoption shall be made to the court.
Section 78(1)( c) states that:
the court must be satisfied as to (a) (b) and that the adoption is proper and in the best interests of the child.”
[73] Section 77(1) demands that every adoption hearing is in camera although the court may permit someone to be there if appropriate, and:
“section 77 (4) demands that the name of the child is not to appear in the title of the application.
the child’s name is generally not on the record, the proceedings are restricted to the public.”
[74] Thus, any interested party, as in the cases before the court, would be denied access to the court to have their plan reviewed.
[75] In compliance with the spirit and intent of this Act, court practice and procedure was developed around adoptions:
● The child’s name does not appear on the public record or the public docket.
● Generally and historically, the child’s name is not mentioned on the court record except by the identification of the child with his or her birth registration number.
● Court procedure dictates that adoption files are kept in a separate secure place in the court administration office. They can be obtained only with court administrator’s assistance.
● The registration number is the only identifying feature on the file folders and dockets.
● The court staff are directed not to disclose the names of the parties ever.
● The judicial assistant obtains the file from a locked cabinet. It is only the lawyer involved in the matter who is paged to the court.
● No information would be available to the public to determine that an adoption is in process.
● The court log shows only the registration number. If a log is kept the court reporter is responsible for destroying it.
● Any order signed by the justice responsible for the hearing are to be given to a designated person for distribution
● The running file is not to contain the lawyers name or the cassette number so as to allow the public to determine who was present.
● The entry onto the civil index is limited to display that an order was granted.
● To the interested public there would be no discernable method of finding out when the adoption was coming before the court should one be interested in applying for status or putting forward a competing plan to address the best interests of the child.
● Access to the record is restricted by policy. After the adoption is granted the record is sealed.
[89] If that were not enough to exclude interested members of the public, section 74 (7) and (8) deal with the entitlement to give consent for children in care. The Act states as follows:
“(7) No order for adoption of a child in care of the Minister shall be made without the written consent of the Minister and no order for the adoption of a child in care of an agency shall be made without the written consent of the agency or the Minister
(8) Subject to subsection (1) and pursuant to subsection(7) , where a child proposed to be adopted is a child in care , the written consent of the agency or the Minister is the only consent required.”
[90] To further close and lock the door to “any meaningful enquiry” into the merits of the application; before a child in the permanent care of the Minister can be placed for adoption with the prospective adoptive parent, any right of access which may exist in an order under section 47(2) must be terminated.
[91] The only other option for an interested party to place their case before the court is by way of application to terminate permanent care. This involves a hearing on the merits before the placement of a child may occur and after the final disposition hearing.
[92] Where the Permanent Care Order contains no order as to access, no other party except the Minister (section 76(1)(a)) is entitled to Notice.
[93] If there is simply an order placing a child in permanent care with no order preserving access one would have to launch an independent action to be added as party or for intervenor status in anticipation of an adoption.
[94] Should there be an Order for Permanent Care with an Order with Access, the prospective adoptive parents must first make application to dispense with their consent. This necessitates an application and further litigation.
[95] Thus, the prospective adoptive parents or the Minister must first apply to the court to terminate any access order before the child can even be placed for adoption (Section 70(3)).
[96] Given these considerations, the deferral of a broad consideration of the best interests analysis not only offends the child(s) sense of timing it defers it to a fictional point in time.
[97] This offends the right of the child to have his or her best interests either assessed by the courts or properly assessed by the Minster’s agents with the added protection afforded the child that if the Minister failed to follow the directions for such a determination as set out in the Young v. Young analysis, the protection of a judicial review would allow the courts to exercise its supervisory capacity to ensure in the final analysis the Minister did in fact follow that which was mandated by the Supreme Court of Canada. (see paragraph 94 herein)
[98] The Supreme Court mandates an assessment in it’s broadest context “the best interest of that child”.
[99] This recent approach in T.H, K.T. and CB undermines our ability to preform our paramount duty to examine the best interests of the child.
Delay
[100] In the adoption process, unless the Minister modifies the time period under section 76(2), the court shall not make an order for adoption unless the child has been in the care of the adoptive parent for 6 months as required (section 76(1)( c)).
[101] Contrary to what the court in T.H. perceived to be the court’s jurisdiction regarding residency (paragraph 57), it is the Minister who may waive the time period (the residency requirement referred to in T.H. ), not the court.
[102] In the actual adoption process, the court simply has to assure itself that the residency requirements have been meet in accordance with the legislation or the Minister’s wishes.
[103] After apprehension, therefore in accordance with section 45, a child under six may have been in the protection process for up to18 months.
[104] If the child is six to 12 years of age, the child may have been in the protection process up to two years.
[105] What the court does by deferring a full best interests analysis is to add another six months to the litigation life of this child unless the matter is before the Court of Appeal in which case yet another five to six months again may be added to the child’s life.
[106] This delay is clearly not congruent with the child’s sense of timing and section 45 of the Act.
[107] There is, therefore, a stark contrast between the process demanded of courts in the substantive body of law surrounding “a best interests analysis” and that which takes place in the adoption process.
[108] In the Young v Young analysis, courts and parents (inclusive of the Minister under s. 47(1)) must weigh the competing plans, balance the benefits and risks of harm to the completing plans and assess which better addresses the best interests.
[109] Where children are children ‘in care’ the adoption process has, for all intents and purposes, become a quasi judicial - administrative function.
[110] Rarely, if ever, are competing plans placed before the courts.
[111] In all but the exceptional cases (and I have seen none in my 20 years as a Judge) in the ordinary adoption proceeding there are no competing plans to weigh, or benefits to measure (as required in a Young v. Young analysis)
[112] Even though there is but one plan before the court, there is minimal evidence (perhaps a two page affidavit simply complying with section 71 (a) and (b)) and little else (absent even the adoption study prepared by the Agency).
[113] The court is restricted to a review of the generally very brief affidavit setting out the bare particulars of the person(s) already approved by the Minister.
[114] In practice and in fact, therefore, in child protection cases there are only two parties to the adoption process (the Minister and the approved adoptive person(s)) (approved in advance by the Minister).
[115] The court reviews the application to ensure it complies with the notice requirements of the Minister and any other party entitled to notice, to ensure all necessary consents are present, to confirm that the child has been with the prospective adoptive parent for at least six months prior to the application, and that the Minister has had at least one months notice of the actual court date.
[116] To suggest after six months that a court would consider further disruption of a child already placed in a prospective adoptive home particularly after a lengthy child protection proceeding (absent problems in the home) is incompatible with the spirit and intent of the legislation, permanency planning and the overall best interest stipulation and completely disregards the issue of continuity of care and attachment theory.
[117] Indeed, the probability that a court would have enough evidence to reject an adoption before it that was approved by the Minister, unless there has been non compliance with the procedural requirement, is minuscule.
[118] The court primarily ensures the adoption process follows the statutory requirements and endorses the Minister’s choice of parent.
[119] There is, therefore, effectively no independent evidence or review. The adoption process, while judicial in nature, is not an opportunity for a meaningful enquiry into the best interests of the child.
[120] In this reality to reduce or delay an inclusive best interests analysis while the matter is already before the court in a Final Disposition hearing is tantamount to an abdication of our responsibility as courts (and parents, including the Minister / Agency) to conduct the fullest analysis possible in accordance with the fundamental and paramount consideration (best interests); with a sense of timeliness that respects the child’s sense of time (sooner rather than later) as articulated in the preamble to the Act; and section 45 (the need for permanency planning) in accordance with the child(s) age and stage of development while there are in fact competing interests before the court.
[121] To suggest as the court does in T.H. that parties find another forum or apply to the court at a later date is to encourage multiplicity of litigation, a course of action specifically frowned upon by our courts and one which will ultimately (given the costs of litigation and the lack of transparent access to the adoption proceedings) result in a denial of access to the courts.
[122] This approach is problematic first because the only parties that can endure this kind of multiplicity of actions is the Agency /Minister and or the client poor enough to obtain legal Aid.
[123] Secondly, our role as trial judges requires that we keep our eyes firmly on the children before us in each case. To the extent of our legislated authority we must not take our eyes off the particular child’s best interests and needs clearly in our view.
[124] Sending a child away from our court when we have the mandate and obligation to address their best interests and needs to try another court with limited mandate to meet their needs at a later date , further delaying an assessment of their needs in a system fraught with systemic delays does not make sense.
[125] It is, therefore, important to recognize the frailty of the assumptions underpinning the belief that another court will complete this most essential task during the adoption process.
Exclusive Jurisdiction as to Placement
[126] Also problematic and perhaps too bold a statement is the suggestion in K.T. that the court plays no role in placement issues.
[127] In K.T., the court incorporated Children and Family Services Act, S.N.S. 1990,c5 (C.F.S.A.) that :
“...once a permanent care order is made, it is up to the Minister and not the disposition hearing judge to decide if and when the children should be placed for adoption. Further it would be up to a judge in a later process to decide if a proposed adoption should be granted. Both the Minister and the adoption judge are to make those decisions in accordance with the child’s best interests.”
[128] We know how limited the enquiry at the adoption stage is.
[129] Abella J. wrote the following for the Supreme Court of Canada in Nova Scotia (Minister of Health) v. J.J., 2005 SCR 177).
“The significance of independent judicial review of state action when a vulnerable adult has been deprived, at the instigation of the state, of the right to function autonomously, cannot be overstated. The court's statutorily assigned supervisory role emerges from the adult's vulnerability. The corollary of a judicial determination that an adult is in need of protection is a corresponding limitation on that adult's autonomous decision making and liberty. It is the function of the court to monitor the scope of that limitation. The legislation must, therefore, be interpreted in a way which acknowledges the intrusiveness of the determination and offers muscular protection from state intervention incompatible with the adult's welfare. Section 9(3)(c) should not be applied in a way that frustrates that responsibility.”
[130] The court in T.H. acknowledge the importance of the supervisory function in child protection matters where the children are likewise among our most vulnerable citizens. In reference to J.(J.), Fichaud J., said as follows:
“I disagree with the Minster that J.(J)’s reasoning dissolves just because the CFSA is a different statute. The Supreme Court of Canada (p.15) described its reasoning as an “interpretive exercise” Justice Abella gave an “interpretation”(16) of the broad words in s.9(3)(c)that assigned to the court a “statutory “(21) responsibility to measure services against best interests. J(J)’s approach is interpretive, and the Supreme Court;s reasoning pivots on the Legislatures intent. J.(J.)’s message for the CFSA is that the relevant statutory provisions be interpreted to determine how the Legislature intended to channel the promotion of the child’s best interests. (para 24 TH).”
[131] In following T.H. and K.T. we must exercise caution to avoid limiting the application of J.(J.) to situations where the court steps in to exercise its parens patria jurisdiction in the event of a “legislative gap”.
[132] As the court correctly noted in T.H., the trial judge in J(J.) did speak to the deficiencies in the Adult Protection Act.
[133] However, no-where in the Supreme Court decision did the court justify or confine court intervention based on parens patria or filling a void in the legislation.
[134] The court in T.H. correctly identified Abella J.’s approach as one of legislative interpretation as to the responsibility of the court based on the statute .
[135] The decision is clear and unambiguous. Abella J undertook ; a statutory interpretive approach referring to the duty of courts as written in the Adult Protection Act to interpret the adults best interests is a way that fulfills the court’s mandate to act in the bests interests of the adult.
[136] Bateman J. speaking for the court in G.(S.) V. Children’s Aid Society of Cape Breton, 1996 CarswellNS 174, 151 N.S.R. (2d) 1, 440 A.P.R. 1, 23 R.F.L. (4th) 189, on the merits of an application to terminate permanent care endorsed both a flexible approach and interpretation to “best interests” and the need for timely resolution.
Interpretative Guide
[137] Recognizing the court’s mistaken perception of the adoption process and the dangers inherent in delaying a full best interests analysis (delay becoming essentially denial) as suggested in T.H. and as adopted in K.T. how do we interpret section 47(2) in light of the court’s comments in K.T.
[138] Was it the intention of the court to conclude that section 47(2) ought to be read to exclude other directives that have evolved through time, case law and legislation?
[139] The more serious question is, does K.T. by focussing on 47(2)(a) as an overriding factor, “virtually read out other clauses including (d)”? If it does, for many important reasons, it ought not to.
[140] A review of Sullivan and Driedger on the Construction of Statutes (4th edition) by Ruth Sullivan Professor of Law University of Ottawa is a good starting point.
[141] Two ideas that are fundamental to statutory interpretation are:
1.the meaning of a text depends on its context; and
2. The statute book is comprised of a coherent and internally consistent set of rules c.10
[142] The meaning of a word depends on the context in which it is used.
[143] As Viscount Simonds wrote in A.G. v. Prince Ernest Augustus of Hanover:
“...words , and particularly general words , cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context , and I use “context” in its widest sense) [1957]A.C.436, at 461(H.L).”
[144] Professor Sullivan quotes as follows:
“In Prassad v. Canada (Minister of Employment & Immigration), Sopinka J. wrote:
In order to arrive at the correct interpretation of statutory provisions that are susceptible of different meanings, they must be examined in the setting in which they appear. 3
In Poulin v. Serge Morency et Associés Inc., Gonthier J. wrote:
As Côté notes, ... the meaning of words depends in part on the context in which they are used. The overall context of an enactment includes, inter alia, the other provisions of the statute, the related statutes and the other rules of the legal system. 4
Context is a vague and malleable term. In modern usage, it may refer to anything that contributes to a text’s meaning, other than the text itself. As indicated by Lord Normand in the Prince Augustus case, it is generally taken to include a wide range of internal and external materials:
In order to discover the intention of Parliament it is proper that the court should read the whole Act, inform itself of the legal context of the Act, including Acts so related to it that they may throw light upon its meaning, and of the factual context, such as the mischief to be remedied, and those circumstances which Parliament had in view."[1957]A.C.436, at 461(H.L.)p.465.
[145] Context is:
“generally taken to include a wide range of internal and external materials”(emphasis mine)
[146] When one looks to substantive law to infer legislative intent we assume:
“ that drafters, legislatures and interpreters all operate within a shared legal tradition that informs their understanding of legal texts.”
[147] Professor Sullivan continues:
“ the external context consists of the setting in which the law was enacted and the setting in which it currently operates . The key assumption here is that legislation is not an academic exercise. It is a response to circumstances in the real world and it necessarily operates within an evolving set of institutions , relationships and cultural assumptions.”( my emphasis)
[148] Thus, we look to the immediate context (the words in the legislation); the Act as a whole; the statute book; the related legislation and the common law; and if relevant, international law; and finally the external context (the historical setting to which a provision was enacted or the setting in which it currently operates).
[149] I would refer to this final consideration as “real life”.
[150] Considering ‘external context’ is an important part of every interpretive exercise:
“Whether acknowledged or not, interpreters rely on their knowledge of the world– on social , political , historical ,economic and cultural assumptions-in determining the meaning and purpose of texts and in assessing their consequences. For this reason the reluctance of some courts to look at evidence of external context is troubling.” (p.262)
[151] I add to this comment that it is particularly troubling when the assumptions in this external context are mistaken. It is here that the we need to consider very carefully the admonition of our Chief Justice McLachlin who cautioned us as judges (and parents inclusive of the Minister / Agency) as follows:
“There is no room for the judge's personal predilections and prejudices. The judge's duty is to apply the law. He or she must not do what he or she wants to do but what he or she ought to do.”
[152] That is to say in the absence of actual evidence we must not fall prey to imputing our cultural and institutional values in our interpretation of legislative intent that reflect our own judicial prejudices and predilections.
[153] To continue with the legislative analysis :
“Coherence
It is presumed that the provisions of legislation are meant to work together , both logically and technologically, as parts of a functioning whole. The parts are presumed to fit together logically to form a rational , internally consistent framework; and because the framework has a purpose, the parts are also presumed to work together dynamically ,each contributing something toward accomplishing the intended goal (p.262)
...
The presumption of coherence is also expressed as a presumption against internal conflict. It is presumed that the body of legislation enacted by a legislature does not contain contradictions or inconsistences, that each provision is capable of operating without coming into conflict with any other.(p.263)
...
The presumption of coherence is a presumption against internal conflict,(p.263)
...
There is a presumption that the legislature did not intend to make or empower the making of contradictory enactments ( LaForest J.,[1992]1S.C.R.3 at 38)
...
I start from the fundamental principle of construction that provisions of a statute dealing with the same subject should be read together , where possible, so as to avoid conflict....In this way, the true intention of the Legislature is more likely to be ascertained.( McLachlin J. In MacKeigan (J.A.) V. Royal Commission (Marshall Inquiry), (1989),61D.L.R.(4th) 688, at 716 (S.C.C.) )
...
With respect to the application of the contextual approach...the objective is to interpret statutory provisions to harmonize the components of legislation in as much as is possible , in order to minimize internal inconsistency....(Sopinka J. In Willick v. Willick [1994]3S.C.R. 670 at 689)
...
There is no doubt that the principle that statutes dealing with similar subjects must be presumed to be coherent means that interpretation s favouring harmony among statutes should prevail over discordant ones (...Lamer C.J. in Point-Claire (City) v. Quebec( Labour Court) [1997]1S.C.R. 1015 )
...
Overlapping Provisions are presumed to apply(p.264)”
[154] Unless there is evidence that one provision (overlapping subject matter) was intended to provide an exhaustive declaration on the applicable law, where two provisions are applicable without conflict, it is presumed that each of the provisions is meant to operate fully according to its terms.
[155] In the case before me, I ask is section 47(2) (a) (the more specific subsection) meant to be exhaustive? If not, there is no reason to exclude the more general subsections such as section 47(2) (d).
[156] . If as in Tabernacle Permanent Building Society v. Knight, the sections under review can “stand together and both operate without either interfering with the other”, there is no conflict (Lord Halsbury [1892]A.C. 298,at 302 (H.L.). Thus there is no need to resort to “conflict avoidance” strategies as is required when interpreting legislation.
[157] There is no evidence that would support a conflict between the subsections in section 47(2) or as between section 47(2) and section 2 and 3 of the Act.
[158] Is there any need to and is it wise to suggest that the specifics in section 47(2)(a) is interpreted as overruling the general?
[159] MacDonald C.J. in his analysis at paragraphs 24 and 25 cites the importance of 2and 3 of the Act specifically, incorporating these and emphasizing the best interests as the paramount consideration.
[160] The bulk of authority approaches the application of this test ‘in the moment’ to respect the need for a timely analysis in the circumstances and in it’s broadest sense.
[161] While section 47(2) does create a statutory presumption that access is not in the best interests of the child, if certain conditions exist our analysis ought not to stop there.
[162] If these conditions exist, this creates a preference for permanent care without access.
[163] If those conditions listed exist, we need to then assess those conditions to determine on the totality of the evidence what serves the best interests of the child or children before us.
[164] This would be more in harmony with the specific statute, the entire body of statutes and congruent with the entire body of the law inclusive of the specific provision.
[165] It would be more congruent with the comments of Oland J. (see paragraph 9) to read K.T. solely in the context of the case then before the court; one which demanded special considerations and L.B. v. Mi’kmaw Family and Children’s Servces of Nova Scotia, 2011 NSJ No 623, as demanding what Gonthier J. did in New Brunswick (Minister of Health and Community Services ) v. ML, [1998] 2 SCR, that is that we conduct a meaningful unfettered analysis of access after permanent care and seek out that information we need to do so.
[166] That would be in harmony with the specific statutes, the other body statutes dealing with children and the vast body of case law which adopts consistently a broad application of best interests test.
[167] We ought to read the sections as coherent rather than place them in conflict with one another.
[168] It follows that interpreting K.T. so as to further restrict the courts ability to conduct a meaningful enquiry moves us further from the spirit and intent of a vast body of substantive law .
[169] It is also critical to avoid an interpretation of C.B.. that permit courts to enter into a reduced analysis of best interests at the permanent care proceeding.
[170] Interpretation of the law must attempt to be congruent with what is actually happening in the lives of Nova Scotians.
[171] Chief Justice MacDonald referred specifically to a consideration of section 3(2) of the Act. He did not say a consideration of section 47(2) precludes a consideration of section 3(2).
[172] Best interest always remains a mandatory consideration. To exclude such an analysis in any circumstances where a child is before us is unwise and unnecessary.
Case Law
[173] Having reviewed the statutory context, a review of the case law is in order to obtain the entire context.
[174] Justice Gonthier stated in New Brunswick (Minister of Health and Community Services ) v. M.L., [1998]2 SCR:
“The decision to be made concerning access , like all decisions concerning the child , must be made in the child’s best interests.”(Paragraph 37)
[175] As Justice Cromwell said in A.M. v. Children’s Aid Society of Cape Breton-Victoria, 2005 NSCA 58 (paragraph 36):
“the decision as to whether or not to grant access is a ‘...delicate exercise which requires the judge weigh the various components of the best interests of the child.”
[176] In Young v. Young, [1993] 4 S.C.R. 3, McLachlin J. summarized the law relating to best interests in a private divorce proceeding in deciding questions of custody and access.
[177] She directed that the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
[178] Her comments endorse the paramountcy of the test articulated in the Children and Family Services Act (ie: the “ best interests”)
[179] McLachlin writes :
“The Wording of the Act
Parliament has adopted the "best interests of the child" test as the basis upon which custody and access disputes are to be resolved. Three aspects of the way Parliament has done this merit comment.
First, the "best interests of the child" test is the only test. The express wording of s. 16(8) of the Divorce Act requires the court to look only at the best interests of the child in making orders of custody and access. This means that parental preferences and "rights" play no role.
Second, the test is broad. Parliament has recognized that the variety of circumstances which may arise in disputes over custody and access is so diverse that predetermined rules, designed to resolve certain types of disputes in advance, may not be useful. Rather, it has been left to the judge to decide what is in the "best interests of the child", by reference to the "condition, means, needs and other circumstances" of the child. Nevertheless, the judicial task is not one of pure discretion. By embodying the "best interests" test in legislation and by setting out general factors to be considered, Parliament has established a legal test, albeit a flexible one. Like all legal tests, it is to be applied according to the evidence in the case, viewed objectively. There is no room for the judge's personal predilections and prejudices. The judge's duty is to apply the law. He or she must not do what he or she wants to do but what he or she ought to do.”
Third, s. 16(10) provides that in making an order, the court shall give effect "to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child." This is significant. It stands as the only specific factor which Parliament has seen fit to single out as being something which the judge must consider. By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized. The modifying phrase "as is consistent with the best interests of the child" means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. But only to that extent. Parliament's decision to maintain maximum contact between the child and both parents is amply supported by the literature, which suggests that children benefit from continued access: Michael Rutter, Maternal Deprivation Reassessed (1981), Benians, "Preserving Parental Contact", in Fostering Parental Contact (1982).”
[180] The third element is less applicable to post final disposition findings in part because the parental relationship has been severed and in part because section 47(2) speaks to a presumption that access which interferes with adoption is contraindicated.
[181] The Supreme Court in Young , v. Young requires courts to complete a risk benefits analysis to decide these issues in accordance with the best interests of the child.
[182] This obligation applies to the judge and to parents (which implicitly includes the Agency and / or the Minister( s. 47(1) of the Act )).
[183] While written in the context of a divorce variation, I am unaware of any conflicting authority that would give courts, parents or the Minister permission to avoid a risks benefits analysis to attain the best interests result:
“227...The only question to be considered where limitation of access is in issue is what is in the best interests of the child. While the custodial parent has the obligation to make certain basic decisions as to how the child is educated, which may extend to religious matters, this does not automatically mean that religious contacts with the access parent of a different faith are to be excluded. It is not the wishes of the custodial parent that govern terms of access, but the best interests of the child.
228 Second, the trial judge failed to consider the benefits which might enure to the children from coming to know their father as he was -- that is, as a devoutly religious man devoted to the Jehovah's Witness faith. She made no reference to Parliament's instruction in s. 16(10) that the child shall have as much contact with both parents as is compatible with her best interests.
229 Thirdly, the trial judge failed to consider adequately whether there was any evidence of a risk of harm to the children which might offset the benefit of full access to their father's values, including those related to religion. While in some circumstances access may be limited on grounds unrelated to harm, in cases such as this, where the issue is whether entirely lawful discussions and activities between the access parent and the child should be curtailed, it behooves the judge to enquire whether the conduct poses a risk of harming the child.
230 While the trial judge alluded to the possibility that if Mr. Young continued to share his religion with the children, he would damage his relationship with the elder two, she failed to allude to any other suggestion of harm and failed to consider whether such harm might outweigh the benefit to be gained from a freer, fuller relationship with their father.”
[184] The issue of access after permanent care was discussed at length in New Brunswick (Minister of Health & Community Services) v. M.L., [1998 S.C.J. No 52]. At that time the New Brunswick legislation did not have a specific provision similar to section 47 of the N.S. Act.
[185] Gonthier J. said at paragraph 29:
“29 If the court has the power to "preserve" a right of access after adoption, a measure that is even more drastic and final than permanent guardianship, it would be illogical for it not to have the power to grant access when it makes the initial permanent guardianship order.
30 This interpretation of the Act is consistent with what was intended by the legislature, that is, the best interests of the child. Any other interpretation would leave the question of access entirely in the Minister's hands. This would not be desirable, in that the children might suffer, for example, from administrative oversights, lack of communication or tensions between the people involved (see Re H.I.R. (1984), 37 R.F.L. (2d) 337 (Alta. C.A.), at p. 344; Children's Aid Society of Winnipeg v. N. (1979), 9 R.F.L. (2d) 326 (Man. C.A.), at p. 331).
31 To summarize, I am of the view that the New Brunswick legislature has given the courts jurisdiction to decide access rights, since it requires that they "place above all other considerations the best interests of the child" (s. 53(2)). Denying the courts the opportunity to decide whether an access order should be made could prevent them from performing their duty of acting in the best interests of the child. It is not surprising that the New Brunswick courts, supported by the judgment of the Court of Appeal in Re M.A.G., supra, have generally found that they possess this jurisdiction.
32 Moreover, a judge hearing an application by the Minister for permanent guardianship of a child is in an excellent position to assess the consequences of granting access. The judge hears the testimony and submissions of all the parties involved, and of their expert witnesses, and has the power, where necessary, to order additional evidence on the question of access. In this instance, he is in a position to hear and draw the necessary conclusions from the evidence relating to what happened on earlier visits.”
[186] In assessing best interests, Gonthier J. referred to the definition of best interests set out in the New Brunswick statute.
[187] He emphasized that the paramountcy of the child’s best interests is absolute. He continued his analysis using the elements outlined in section 1 of the New Brunswick legislation.
[188] Later, he reviewed the legislation in Nova Scotia and Ontario wherein the legislature articulated specific considerations under that broader umbrella of considerations related to the best interests of the child in the context of the facts of each case:
37 The decision to be made concerning access, like all decisions concerning the child, must be made in the child's best interests. Under s. 1, the determination of the best interests of the child takes into consideration:
(a) the mental, emotional and physical health of the child and his need for appropriate care or treatment, or both;
(b) the views and preferences of the child, where such views and preferences can be reasonably ascertained;
(c)the effect upon the child of any disruption of the child's sense of continuity;
(d) the love, affection and ties that exist between the child and each person to whom the child's custody is entrusted, each person to whom access to the child is granted and, where appropriate, each sibling of the child and, where appropriate, each grandparent of the child;
(e) the merits of any plan proposed by the Minister under which he would be caring for the child, in comparison with the merits of the child returning to or remaining with his parents;
(f) the need to provide a secure environment that would permit the child to become a useful and productive member of society through the achievement of his full potential according to his individual capacity; and
(g) the child's cultural and religious heritage; [Emphasis added.]
38 An order for permanent guardianship is the result of a consideration of the best interests of the child. In considering whether visiting or access rights should be granted, the judge cannot ignore the fact that he or she has first found it necessary to remove the child from the parents' care completely and permanently, so that the child's welfare will not be jeopardized any further. The judge must therefore consider whether more limited contact might still be beneficial for the child.
39 My consideration of whether access should be granted is based on the following principles. First, there is no inconsistency in principle between a permanent guardianship order and an access order. Second, access is the exception and not the rule. Third, the principle of preserving family ties cannot come into play in respect of granting access unless it is in the best interests of the child to do so, having regard to all the other relevant factors. Fourth, an adoption, which is in the best interests of the child, must not be hampered by the existence of a right of access. Fifth, access should not be granted if its exercise would have negative effects on the physical or psychological health of the child.
43 In addition, even where the Minister intends to try to find an adoptive family for a child under his guardianship, it may be in the best interests of the child to maintain contact with his or her natural family. Section 85(2) of the Act provides that the court may preserve a right of access even after adoption. For instance, it may be necessary to ensure a child's emotional stability by keeping him or her in the foster family, so that the child does not have to live with a parent who is unable to provide for his or her welfare but can nevertheless have the opportunity to maintain and cultivate an emotional tie with that parent (Nouveau-Brunswick (Ministre de la Santé et des Services communautaires) v. L.L., [1997] A.N.-B. no 417 (QL) (Q.B.); Nouveau-Brunswick (Ministre de la Santé et des Services communautaires) v. L.L. (1990), 109 N.B.R. (2d) 202 (Q.B.)).
(ii) Access: the exception and not the rule
44 A review of the case law and legislation of the other provinces shows that access is the exception and not the rule in the context of a permanent guardianship order. In Ontario and Nova Scotia, the legislation creates a presumption that any right of access is revoked, and sets out the exceptional circumstances in which an access order may be made.
Child and Family Services Act, R.S.O. 1990, c. C.11
59. . . .
(2) Where a child is made a Crown ward under paragraph 3 of subsection 57 (1), the court shall not make an order for access by the person who had charge of the child immediately before intervention under this Part unless the court is satisfied that,
(a) permanent placement in a family setting has not been planned or is not possible, and the person's access will not impair the child's future opportunities for such placement;
(b) the child is at least twelve years of age and wishes to maintain contact with the person;
(c) the child has been or will be placed with a person who does not wish to adopt the child; or
(d) some other special circumstance justifies making an order for access.
Children and Family Services Act, S.N.S. 1990, c. 5
47 . . .
(2) Where an order for permanent care and custody is made, the court may make an order for access by a parent or guardian or other person, but the court shall not make such an order unless the court is satisfied that
(a) permanent placement in a family setting has not been planned or is not possible and the person's access will not impair the child's future opportunities for such placement;
(b) the child is at least twelve years of age and wishes to maintain contact with that person;
(c) the child has been or will be placed with a person who does not wish to adopt the child; or
(d) some other special circumstance justifies making an order for access.
The burden of proving the existence of one of these exceptional circumstances rests on the person claiming the access rights (Nova Scotia (Minister of Community Services) v. S. (S.M.) (1992), 41 R.F.L. (3d) 321 (N.S.S.C.A.D.), at p. 335; Nova Scotia (Minister of Community Services) v. K.M.S. (1995), 141 N.S.R. (2d) 288 (Fam. Ct.), at pp. 306‑7).
45 In New Brunswick, the legislature has not chosen to create a presumption that access is revoked. In practice, and in accordance with the judgment of the Court of Appeal in Re M.A.G., supra, at pp. 451‑52: "It will only be in rare situations that access will be ordered and it may be that in these rare situations it is not appropriate for that child to be placed for adoption." (Emphasis added.) This statement of the applicable law seems to me to be entirely accurate, and is consistent with what was said by Esson J.A. in Superintendent of Family and Child Service v. D.S. (1985), 46 R.F.L. (2d) 225 (B.C.C.A.).
(iii) Preservation of family ties: a factor
46 While a liberal interpretation of the Act is called for, to protect the integrity of the family and avert family breakdown (s. 2), the best interests of the child must remain the primary consideration.
47 The Ontario Act is regarded as one of the least interventionist, in that it emphasizes the importance of preserving the family unit. This Court has held, however, that preserving the family unit plays an important role only if it is in the best interests of the child (Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), supra). This Court has also held on numerous occasions that pursuing and protecting the best interests of the child must take precedence over the wishes and interests of the parent (King v. Low, [1985] 1 S.C.R. 87; Young v. Young, [1993] 4 S.C.R. 3). In Catholic Children's Aid Society of Metropolitan Toronto, supra, at p. 191, L'Heureux‑Dubé J. stated: "Thus, the value of maintaining a family unit intact is evaluated in contemplation of what is best for the child, rather than for the parent. In order to respect the wording as well as the spirit of the Act, it is crucial that this child‑centred focus not be lost".
48 I conclude that while preserving emotional ties is one of the elements of the definition of the best interests of the child (s. 1(d)), it will only operate in favour of granting access if access is in the best interests of the child, having regard to all the other factors.
49 Thus, if there is an emotional bond between the child and the parent, it should be preserved, as long as it is not contrary to the other interests of the child such as security or psychological health (New Brunswick (Minister of Health and Community Services) v. B.D. (1994), 145 N.B.R. (2d) 14 (Q.B.)). On the other hand, a child and a parent who are not attached to each other may not be granted access if the effect of doing so would be to disturb the child (New Brunswick (Minister of Health and Community Services) v. S.G. (1997), 193 N.B.R. (2d) 274 (Q.B.)). The child's wishes, where the child is capable of expressing them, is an important consideration (ss. 6(1) and 45(3)(c) of the Act).
(iv) Adoption as a priority
50 If adoption is more important than access for the welfare of the child and would be jeopardized if a right of access were exercised, access should not be granted (New Brunswick (Minister of Health and Community Services) v. R.N. (1997), 194 N.B.R. (2d) 204 (Q.B.)). In other words, the courts must not allow the parents to "sabotage" an adoption that would be beneficial for the child (Re S.G.N., [1994] A.J. No. 946 (QL) (Prov. Ct.)). In New Brunswick (Minister of Health and Community Services) v. D. (K.), [1991] N.B.J. No. 222 (QL) (Q.B.), the child was severely disabled, both physically and mentally. In view of the evidence that the mother was interfering inappropriately in the foster family's life and was thereby reducing the already slim chances of finding adoptive parents, Athey J. refused to grant access (see also: Children's Aid Society of the District of Thunder Bay v. T.T., [1992] O.J. No. 2975 (QL) (Prov. Div.), and Children's Aid Society of the Durham Region v. W. (C.), [1991] O.J. No. 552 (QL) (Gen. Div.)). Because of the urgent need to find the child an adoptive home, access was denied to the extent it was unduly delaying the adoption process (see: Nova Scotia (Minister of Community Services) v. D.L.C. (1995), 138 N.S.R. (2d) 241 (C.A.)).
(v) Interests and needs of the child to take priority
51 The decision as to whether or not to grant access is a delicate exercise which requires that the judge weigh the various components of the best interests of the child. It is up to the judge to determine which of the child's interests and needs take priority (see New Brunswick (Minister of Health and Community Services) v. D.T.P., [1995] N.B.J. No. 576 (QL) (Q.B.), at para. 41). A child's emotional stability is of prime importance. If the child is unduly disturbed by access, it is generally not granted (see New Brunswick (Minister of Health and Community Services) v. K.E.B. (1991), 117 N.B.R. (2d) 229 (Q.B.), at p. 239; New Brunswick (Minister of Health and Community Services) v. P.P. (1990), 117 N.B.R. (2d) 222 (Q.B.)).
52 The evidence as to how access has been exercised is particularly relevant, since it relates both to the attitude of the parent and to the effects of the visits on the child. Every parent must place his or her child's interests ahead of the parent's own. The parent's inability to do so, and the harm suffered by the child, are factors that may result in access being prohibited. This will be the case, for example, where the parent is violent, manipulative, unstable or unable to control his or her emotions. With regard to the effects of the visits on the child, signs such as sadness, anxiety, regression, the reappearance or exacerbation of behavioural problems, mood and nightmares may evidence harm. (See: New Brunswick (Minister of Health and Community Services) v. R.P.S., [1993] N.B.J. No. 96 (QL) (Q.B.); New Brunswick (Minister of Health and Community Services) v. K.E.B., supra, at p. 235; Director of Child Welfare (Alta.) v. A.C. (1991), 121 A.R. 301 (Prov. Ct.).) In short, the parents must be worthy of being "visitors in their child's life", in the words of Judge Cook‑Stanhope in Alberta (Director of Child Welfare) v. L.L.O., [1996] A.J. No. 660 (QL) (Prov. Ct.), at para. 94.”
[189] I am therefore armed with section 47(2) and section 3(2) of the Act and the comments of Chief Justice MacDonald in K.T. that ‘a special circumstances’ under Section 47 (2 )(d) may include a permanent placement with a family member, with a view to adoption by that family member, but involving some ongoing contact with the natural parent that was satisfactory to the adopting parents and which would not deter the adoption.
[190] I conclude section 47(2) is the starting point. I approach this as unfettered in compliance with the substantive law requires and I do not exclude consideration of the best interests test as defined in section 3(2).
[191] The most persuasive authority is the consistent theme throughout that best interests, as defined in section 3(2) of the Act, is the ultimate test.
[192] It would create an inconsistency to interpret Chief Justice MacDonald’s decision in a restrictive fashion such that a total analysis of the best interests would be ignored or, as suggested in T.H., delayed.
Process
[193] Following the directions of the Court of Appeal on November 23rd, 2011, on January 16, 2012. the parties and their counsel appeared for a pre trial administrative conference before the Family Division.
[194] The parties and their counsel were given a choice to have the access issue concluded without further evidence or to call evidence. They unanimously chose the latter.
[195] While the Court of Appeal spoke only to the mother’s right to be heard, the father chose to file an affidavit as well. All parties were represented by counsel. No one objected to the father’s involvement.
[196] The matter was adjourned to March 12, 2012. Counsel were to advise the court as to their preferred method of proceeding. The mother, L.I., was directed to file an updated affidavit by January 31, 2012, providing information to the court regarding any contact she has had with the children and/or the foster parents since March 16, 2012, the last day evidence was given.
[197] The father, B.L., was to file his affidavit by February 15, 2012.
[198] The matter was scheduled for hearing on May 15, 2012.
[199] The mother filed an unsworn Affidavit on January 4th which contained no new information. Her final filed undated Affidavit was sent to the court on June 22, 2012. She executed this in court. This Affidavit simply provided a list of workshops the mother had attended .
[200] The father provided a Plan of Care dated June 29, 2012.
[201] On March 12, 2012, all parties except counsel for the mother were present; although the mother’s counsel did advise in advance she was agreeable to an adjournment.
[202] The case was further adjourned to April 30, 2012.
[203] The matter reconvened on April 30, 2012. The Agency advised they opposed access. The father’s counsel did not have instructions. The mother’s counsel acknowledged that she understood that more work had to be done in this matter before it could be presented to the court.
[204] Again on May 15, 2012 all parties agreed it was best to have more information before the court. The court was informed that the older child was seeing a psychologist. The Agency wanted some time to allow the psychologist to meet with the child. The matter was adjourned.
[205] Finally, the matter came before the court on July 5, 2012, for hearing. Both of the parents filed very brief Affidavits. As well, I received an updated Affidavit from the Agency. No cross examination of these witnesses occurred.
[206] I heard from the foster mother who was cross examined by both parents’ counsel.
[207] The child’s psychologist, Dr. Wolfe, did not testify. Her task was to assess the oldest child’s behavioural issues, not the access issue.
Access Consideration
[208] In the Final Disposition Decision dated April 27, 2011, the court outlined the facts that successfully supported the request for no access. The reasons lie within the evidence before the court at first instance. A summary is also contained in the Court of Appeal Decision. I will not repeat those facts herein.
[209] It was abundantly clear that these two parents loved their children and the children loved the parents.
[210] In both the permanent care hearing and the post appeal access hearing,
the mother submitted the Report of the access facilitator Laurie Coffin, dated August 27, 2012 (exhibit 2).
[211] This Report confirmed that during supervised visits with the children, the parents acted appropriately. There was a good relationship between the parents and the children. The parents were attentive and the children were very happy with visits with their parents.
[212] It was obvious in the access reports and other evidence that a strong bond of attachment existed between the two parents and the children.
[213] None of the access visits were terminated as a result of inappropriate parental behaviour.
[214] The parents rights were terminated because in the history of this file the evidence confirmed that absent supervision the parents have not been able to exercise the responsibilities of parent in a consistent and safe manner such that the needs of the children could be adequately addressed.
[215] Significant time had elapsed between the “taking into care” and the final Decision during which time the parents were coaxed to participate in services that would address the issues of domestic violence, life style issues and the misuse of alcohol and drugs.
[216] It was clear to me that the Mi’kmaw Agency worked towards a return of the children to their parents care as their first priority.
[217] The children were, in fact, returned briefly and then reapprehended.
[218] It was also clear that this particular agency held on to this objective until the very last moment when it became clear the parents were unable and unwilling to address the risks in a timely fashion within the time limitations imposed by the section 45 of the Act and case precedent.
[219] The children were removed from the parents because there was a substantial risk of harm to them if they continued in their parents care.
[220] That finding never changed.
Parental Capacity Assessment
[221] I have had the benefit of rereading the Parental Capacity Assessment to determine what were the issues and concerns that existed when the children came into care.
[222] Pages seven through 11of this Assessment identify issues that were of concern regarding the father ,B.L. and the mother L.I..
[223] The parenting concerns regarding L.I. were identified.
[224] The Assessment noted that the mother (then 19 years old) appeared to have limited insight into her behaviour in relationships (parental capacity assessment - p. 7).
[225] The relationship issues between the parents was of concern.
[226] It was noted on numerous occasions that the mother was aggressive and physically violent with the father (parental capacity assessment-pgs. 8, 9 and 11).
[227] There were allegations of violence by both the mother and the father and repeated incidents of violence when the young couple were drinking.
[228] The issues noted by the assessor included:
There were relationship difficulties;
There was the attempted suicide by the father;
There was alcohol use and abuse throughout; and
There was a lack of truthfulness to the Agency.
[229] The mother said: “I didn’t give the (social workers) a straight up answer because I didn’t like talking to them about it”.
[230] At page 41 of the Assessment, the assessor notes:
“...attachment with her parents seems to be marked by ambivalence and alienation. Ms. I. admits that she does not care about her parents or their lives. By 10 years of age, her parents were living separately. Not having a secure attachment in her childhood, it would be difficult for Ms. I. to have secure attachments in her adult relationships (emphasis mine). Her pattern of alienation in relationships is further supported by the MMPI-IIRF.”
[231] Further, the assessor noted:
“adding to the challenges in her life, Ms. I. was sexually abused at the ages of nine and 13 years. No treatment was sought by her for those experiences. As the perpetrator was an adult, it likely further jeopardized her ability to develop safe and secure relationships with others. The MMPI-IIRF supports that Ms. I. is suspicious of others, and does not easily trust. This pattern is also found in her therapeutic relationship with Mr. Burns, whom she does not appear to share her thoughts and feelings with. Given her history and assessed psychological makeup, it will likely be difficult for Ms. I. to form a therapeutic relationship with a therapist, and to be compliant with treatments.”
[232] In speaking of relationship issues and the problematic and ultimately chaotic nature of her relationships at that age, the assessor noted at pages 41 and 42:
“She acknowledges her anger towards Mr. L. but does not seem to understand the origins of that anger. There appears to be limited emotional awareness. The MMPI-IIRF supports her difficulty with insight. As a result, there is a pattern of conflict which threatens their ability to provide a consistent and appropriate environment for their children.”
[233] The assessor did conclude that:
“the use of alcohol by Ms. I. does not suggest that she has an alcohol dependance issue. At times, alcohol was involved when situations escalate.”
[234] The kinship foster mother expressed concerns about the oldest’s child’s behaviour after visits with Ms.I. Respecting this, the assessor noted at page 42, as follows:
“Information from Ms. I., the foster mother, and a babysitter suggest that H. can be a behavioural challenge when her demands are not met. The foster mother and babysitter report that she will sometimes grab people between the legs. This behaviour may be attention seeking in nature.”
[235] The assessor also added:
“ ...observed, H. did not exhibit any problematic behaviours. Consistent with the view of Ms. I., both H. and J. appeared to be healthy, age appropriate children who do not currently present with any special needs. Both appear to have a secure attachment to their mother, Ms. I., was attentive of them, providing good supervision and adequate care when observed.”
[236] The assessor noted finally:
“Ms. I. is a young mother of two healthy girls. Some of her current difficulties may be related to her youth and lack of life experience. By completing her education, she is demonstrating motivation to improve the family situation for herself and her dependent daughters. It is realistic with further support (parenting, relationship, mental health and alcohol use treatment) that she could be in a position to adequately and appropriately care for her children.”
[237] The assessor then made recommendations in his April 7, 2010 Report (prior to permanent care stage of proceedings) to address the issues of concern that might, if followed, bring the mother to a position where she could parent the children (paragraph 43). These recommendations included:
“2. supervised visits with her children;
3. that she remain abstinent from alcohol and other psychoactive substances such as marijuana and any other street drug;
4. conjoint counselling;
5. individual counselling to address anger management, stress management; emotional awareness and self esteem;
6. parenting classes; and
7. addiction counselling.”
Conclusion on the Evidence provided at Permanent Care
[238] In paragraph 6 of the Permanent Care Decision, the court noted as follows:
“The children were returned to their mother’s care under conditions on October 25, 2010, and on December 1, 2010, they were reapprehended and returned to their kinship placement where they remain pending the final hearing.”
and at paragraph 7:
“In later November, 2010, the agency changed their Plan of Care due to:
a) a lack of sufficient compliance with the agency plan;
b) ongoing relationship issues, including domestic violence;
c) a lack of insight and a lack of evidence of positive parental behavioural changes; and
d) positive urine results, including a hair analysis sample that indicated that the mother was exposed to frequent cannabis users.”
[239] In referring to the reasons the Plan of Care changed, the court noted:
“228 The parents lied to the agency during the family conference when they assured the agency they were drug and alcohol free and had been for some time.
229 More critically, the mother shows no insight into the necessity to remain drug and alcohol free. Nor does she articulate a desire to do so. Without the testing, she told the assessor she might use again. She drank because she wanted to even when the consequences of doing so could result in the loss of her children. She associates with those who use cannabis frequently.
230 There is evidence that the mother participated in the domestic violence and parenting course offered her. The hours offered to them were very limited.
231 I have no information before me that allows me to conclude she developed insight or altered her behaviour as a result of these courses.
232 There is evidence that both mother and father received high praise at supervised access visits.
233 The children were apprehended in September, 2009. The mother finally attended six sessions with an addictions counsellor in April, 2010. When she attended, she did not represent to the addictions counsellor insight or accuracy regarding the effect of alcohol in her life.
234 Her behaviour also consistently exhibits a lack of insight or simply refusal to maintain contact or to participate in the ongoing support services available to her.
235 The refusal to be consistently open and available does not argue well for the safety of the children in her care unless there is a demonstrated change in perspective, insight and behaviour such that external resources would not be necessary to provide external support and observation.
236 The mother’s affidavit and testimony provide scant detail that would assure the Court that placement of the children in her care could occur without conditions.
237 There is no evidence before me that would address the on and off again relationship between the parents and the domestic violence.
238 While they currently present as separate, this has been a long term relationship with many separations. The therapist concluded they could not parent together, presented as immature and lacking in insight regarding their relationship.
239 While they presented a separate plan, apparently recognizing that together they continued to pose a risk to the children’s environment, there were occasions when they continued to associate and stay together in the home. This does not support a conclusion that, left on their own, they have the necessary insight to address the risk their ongoing relationship difficulties present to their children.
240 The assessor noted that each should address the history of sexual abuse that victimized each of them. Each expressed, understandably, a reluctance to do this. However, the goal of such therapy was to create the capacity for each of these parents to enter into mature and healthy relationships in future.
241 The relationship issues between the parents and the mother’s choice of other partners has been a major cause of conflict and chaotic lifestyle to which the children have been exposed.
242 I cannot conclude with any confidence that the mother has the insight and motivation to address her relationship issues sufficiently such that the children will not in future be exposed to violence, substance abuse and the fathers mental health issues.
243 The mother’s testimony did not address with certainty any insight into her selection of partners who expose her to unhealthy circumstances.
244 The negative testing does suggest the parents can remain drug free while being tested. There are sufficient missed testing; such that I cannot conclude this issue has been addressed by the father or that the mother understands how important abstinence is. However, this is not the major factor.
245 The most serious impediment is the clear lack of insight and understanding regarding how the parents lifestyle issues, domestic violence, and instability affects the children. This was something that Mr. Bryson said the mother could develop.
246 Unfortunately, after 20 months there is little evidence to see that this intervention has made a difference. That is not to say it can’t happen for the mother. It is simply to say, currently it has not happened in this case with these children.
247 These children have been in a kinship placement for in excess of 15 months. I have only the evidence of the parents to support their belief that they understand and have made significant progress.
248 I have no evidence from any other source indicating that these children could be placed in the care of the mother without conditions and they would be free of the risks identified at the beginning.
Placement Evidence
[240] This reference back from the Court of Appeal has provided me an opportunity as a trial judge I would not normally have, to open the door to evidence from the actual foster /kinship placement, within the context of a final disposition hearing.
[241] In assessing whether access after adoption is in the best interests of the children, this referral has given the court a very positive opportunity to hear, examine and weigh evidence from the person who has provided the day to day care to these children over a period of three years.
[242] We hear little, if anything, about placement other than the information contained in the brief summary contained in the Final Plan of Care. Professor Thompson accurately referred in his annotation to the “(often bare) assertions that there are placement options for children or that access would impair those options” ( paragraph 26).
[243] Historically, we are discouraged by counsel for the Minister from seeking evidence within the placement domain. The Agency argues historically that the court has no business concerning themselves with placement issues after permanent care.
[244] In this case, evidence regarding placement will have an effect on access.
[245] As I reviewed the evidence, I became mindful of how hampered we have become as judges in the first instance because of the paucity of evidence we are given about the placement of the children as it relates to their needs and, in this case, access to their biological parents.
[246] The final disposition process is not meant to pit the parents against competing interests unless and until the applicant had satisfied the court, in accordance with the civil burden of proof, that the parents cannot sufficiently address the risk issues within the time frame of the legislation.
[247] Thus, unless a third party is joined as a party or forms part of a Plan of Care, the court hears little to no evidence about the prospective kinship placement or prospective adoptive parent.
[248] Clearly, this has proven to be unsatisfactory. The focus in the initial aspect pre final disposition is on the past, not the present. What is happening to the child while in the care of the Minister goes virtually unnoticed. This is a truncated approach to assessing best interests.
[249] The paucity of evidence in this case hindered the court in exercising its function in assessing the value of ongoing contact between parents and children in a post protection world.
[250] The direction from Oland J.,writing for the court, read in the context of our guiding Supreme Court of Canada authorities on access in private proceedings, access after permanent care, implicitly and explicitly calls upon the trial division to ensure it has sufficient evidence to address access after permanent care.
[251] Further Gonthier J. (New Brunswick (Minister of Health & Community Services) v. M.L. [1998] S.C.J. No 52, at paragraph 32) directs trial courts to order additional evidence if necessary.
[252] This frees the court from previous held notions that tend to limit our jurisdiction over the home in which the child is placed.
[253] It frees us to demand sufficient evidence to address this most critical issue.
New Evidence
The Kinship /Foster Mother Placement
[254] A.W., the kinship foster mother, is 57 years old, married, works 5 days a week and lives in the M.U. area. Her husband works back shift and has every second weekend off. A.W. hopes to retire in two and a half years.
[255] The foster mother in this placement is the grand aunt of the children and the aunt of father. I did not hear from the foster father.
[256] They have parented M.; B.L.’s sister, since her infancy. She is now 14 years old and continues to live with A.W. and her husband.
[257] A.W. has many close relations living in the C.I. area (in close proximity to the biological parents). She brings the children to C.I. for most if not all holiday celebrations and she and they stay with her relatives.
[258] In July of each year, the community of C.I. holds a religious ceremony commonly known as “Mission”. It is held on an island off of the coast of C.I. and religious services and community events take place during Mission week.
[259] The foster mother spends some of her vacation there every year and attends the annual “Mission”.
[260] H. and J. (the children who are the subject matter of this hearing) came to live with A.W. and her husband when they were 18 months and seven months respectively. H. is almost 5and J. is almost 4
[261] As of this decision, these children have been living with A.W. and her husband for three years and three months.
[262] The children are kept in fairly significant contact with A.W.’s relatives who come from and form part of the same extended family from which the father and H. and J. come.
[263] While in C.I., they also have an opportunity to see their mother’s family, including their mother’s sister who is a Godmother to one of the children.
[264] The youngest child, J., has been with A.W. since she was seven months old. She is described as “a bubbly, happy child”.
[265] The foster mother confirmed that she visits her relatives in C.I. on a regular basis and particularly on holidays.
[266] J., the youngest child, has not had the same opportunity to be connected to her biological parents as the older child.
The Parents
[267] The information that I have from both parents is very sparse.
[268] Since the Permanent Care Order, the mother advises she has completed various workshops in part in relation to another protection application before the court regarding her youngest child, born June 28, 2011.
[269] To that end, she has completed:
A) Strategies for Anger Management - May 11, 2012;
B) Healthy Parenting Home Study Program - November, 2011;
C) Simple Gift Parenting Program - August 17, 2011; and
D) ASIST - Suicide First Aid - May 5th and 6th , 2011.
[270] She is currently having supervised access to her youngest child who is in the care of the Mi’kmaw Family and Children’s Services Agency.
The Father
[271] B.L. resides in a three bedroom home in the First Nations community of C.I. The home is owned by the C.I. Band Office and was registered in B.L.’s mother’s name. He confirmed what was clear in the court record, that he enjoyed “a close and loving relationship with both children”.
[272] B.L. filed a short Affidavit in which he advised he has obtained his medical First Response designation from the Nova Scotia Department of Health - Emergency Health Services and has recently joined the C.I. Volunteer Fire Department and anticipates he will begin training shortly. He has also joined the C.I. Search and Rescue.
[273] B.L.’s aunt, the kinship foster parent, brought the children to this Mission in July, 2011( post permanent care). The foster mother stayed with B.L.’s uncle.
[274] At that time, B.L. had the opportunity to visit for three hours with the children. He fed them and played with them. At the request of his aunt, the foster mother, he changed the children’s diapers.
[275] B.L. also had an opportunity to see the children on the Canada Day weekend of 2011. He did not have an opportunity to interact with them during their visit.
[276] Further, on Christmas Day 2011, he visited with the children at his aunt’s home in C.I. This was a visit that took place over one and a half hours. He had Christmas dinner with the children and brought them gifts.
[277] The foster mother was present and while she was not asked in advance to permit the visit, she voiced no objection to him seeing the children and interacting with them.
[278] In March, 2012, B.L. visited with the children at his Aunt’s home in C.I. On the March visit, B.L. spent one hour with the children.
[279] He observes them to be happy when they see him and sad to see him leave.
[280] He advises that he continues to see his counsellor on a weekly basis.
[281] I have no evidence as to the success of his counselling.
Behavioural Problems
[282] H., the oldest child in this proceeding, had difficulties from the very beginning. When she first came to live with her Great Aunt she was acting out with her dolls, poking the doll and repeating or mimicking actions that the foster mother equated with sexual activity with the doll.
[283] The doll was originally removed the first night and given back to the child. The child became very secretive with the doll again and continued to strip the dolls and play with the doll in what the foster mother described as a sexualized manner.
[284] The Agency was contacted and this was discussed at a very early stage in the proceedings.
[285] This was seen as attention seeking behaviour and the foster mother was counselled as to how she should address the child’s difficulties.
[286] The child has a temper. She is described as a child who continually goes after her sister to poke at her, to grab her, to poke at her rectum and grab her between the legs.
[287] As a result, the foster mother has instituted in her household certain precautions when H. is playing with dolls or playing close to her sister. She ceased bathing the children together because the oldest would be more aggressive with the youngest in the bathtub.
[288] The foster mother describes this activity as more frequent immediately after visits with the mother and less frequent when the visits are less often.
[289] The foster mother did not observe the same behaviour when the child had visits with her biological father prior to the Permanent Care Order.
[290] I am aware as a result of this hearing that the foster mother holds a favourable impression of the biological father, who is her nephew.
[291] Before the Permanent Care Order, the foster mother was a supervisor of the mother and father’s visitation because the Agency could find no one else to supervise.
[292] After the permanent care hearing, the foster mother described H’s more difficult behaviour as tapering off.
[293] Currently, the child has been seeing a psychologist to deal with her behavioural problems.
[294] I have no evidence on which I could decide the cause of the child’s behaviour. I have no evidence to concluded that this child was inappropriately exposed to sexual behavior of adults or that this behaviour is simply one of the consequences of her removal from her parents, her need to be connected with them and her need to act out as a result of the fact that she cannot live with her parents. I also cannot conclude whether this is a result of the circumstances of her chaotic life prior to apprehension.
[295] I can only conclude that this is attention seeking behaviour.
Access Between Biological Parents and Children
[296] This kinship placement has allowed the children fairly extensive contact with their extended biological family.
[297] There have been occasions since the Permanent Care Order when the children have had unscheduled access visits with their biological parents. Although these encounters were not preplanned or initiated by the foster mother, she has allowed them to happen and has allowed the children limited contact with their parents in a supervised setting.
[298] There have been three, possibly four, visits since the Permanent Care Order. One at Christmas, another at a ball game and the children were able to see their parents at the Mission celebration in C.I.
[299] On the first occasion, the parents showed up unexpectedly one day at the foster mother’s sister’s home, E.B., in C.I. The mother came with two bags of Christmas gifts.
[300] When she arrived at the home where the foster mother and the children were staying, she was invited to come into the home. The foster mother allowed her some time to be with her children and to exchange presents. The children knew that this was their mother; they said “it’s our mommy” and the mother was allowed to stay for an hour and play with the children.
[301] That evening, the foster mother had difficulty settling H. down. This continued until approximately one o’clock in the morning. H. began to have the behavioural issues when she is being put to bed. She began to, again, reach over to poke and touch her sister. She was restless. She grabbed her stuffed toy, that her mother brought her. The foster mother said it wasn’t until 1:00 a.m. that H. was able to sleep. The behaviour continued all the next day with H. being what she termed “all worked up”, “aggressive”.
[302] The only conclusion I can come to on the evidence is that this may be the inevitable consequence/ conflict that arises in children who have already established a relationship with their parents (adequate or otherwise).
[303] The biological father also showed up that evening when visiting his other sister for what was apparently an unrelated purpose.
[304] Again, at a summer baseball game, the mother showed up and stayed for 45 minutes until the foster mother brought an end to the visitation.
[305] At the Mission, the biological mother and father showed up and visited with the girls. The father stayed for approximately an hour.
[306] It is the parents who have instigated unscheduled visitation. The foster mother has not been asked in advance for an opportunity to see the children. L.I. has appeared at a community activity, visited the residence where the children stay during the visits and engaged the children without prior permission from the foster mother.
Notice of Intent to Adopt
[307] The Court of Appeal in this Decision dated November 23, 2011, noted that the kinship placement had not, as of the hearing of the appeal, filed a Notice of Intent to Adopt (paragraph 43).
[308] It is unclear to me what effect the absence of a Notice of Intent to Adopt had on the court finding within the context of section 47(2) regarding the intent of the kinship foster placement to adopt these children.
[309] Section 76 (3) of the Children and Family Services Act states as follows:
“3) In the case of a child who is a child in permanent care and custody, the notice of the proposed adoption shall not be given until any appeal from an order for permanent care and custody of the child or from a decision granting or refusing an application to terminate an order for permanent care and custody is heard and finally determined or until the time for taking an appeal has expired. 1990, c. 5, s. 76; 1996, c. 10, s. 14; 2005, c. 15, s. 4.”
[310] At the time of the appeal, the kinship placement or intended adoptive parents were prohibited by law from filing a Notice of Adoption until, in this case, the Court of Appeal rendered its Decision on November 23, 2011.
[311] This kinship placement had been contemplated as noted on page 5, paragraph ( c) of the Final Agency Plan filed of December 21, 2010.(s. 47(2)(a) of the Act)
[312] As to the second part of (a), at the time of the hearing, neither party provided any evidence as to the effect of an access order on the kinship placement except for the Agency Plan of Care that simply indicated that access would impair the prospective adoption:
“The children H L and JL are placed in an approved foster home , which is their paternal aunt, who will be given the opportunity to adopt the children. The children ....have been in the same foster home since coming into care and adoption is proposed for these children as well.”
and (d):
“Access with the children will be at the discretion of the agency. Access will only be conducted should the parents embrace recovery from additions.”
...and 79 ( c)
“An access provision would impair any opportunity for the children to be placed for adoption and no provision is requested.”
Intention to Adopt
[313] While the foster mother was unable to file a Notice of Intent to Adopt at the time the Appeal was heard; she has yet to file this Notice.
[314] The foster mother has also not filed a Notice of Intent to Adopt the oldest child, B.L.’s sister, although two to three years prior, both she and her husband took adoption courses.
[315] The foster mother and her husband are parenting three of her extended family members.
[316] The foster mother expressed an intent to adopt these two children before me. As with all three, financial circumstances appear to be the stumbling block.
[317] Prior to adoption the foster mother continues to receive support while she parents three members of her extended family. She needs the Agency agreement to continue to subsidize the placement post adoption.
[318] The loss of this subsidy would create financial hardship for her family.
[319] This is a very real financial concern for her and it is entirely reasonable she would be reluctant to lose these subsidies.
[320] That consequence clearly would not be in the best interests of the two children before me.
[321] She also confirmed that access under certain conditions would not deter her from seeking to adopt these children.
[322] When asked whether she would continue to care for the children if the court rendered a Decision that access should be granted, she advised that she would. Access in and of itself would not cause her to give up the care for these children.
[323] The foster mother encourages the children to remember their biological parents. She tells them she believes H. looks like her biological mother and J. looks like her biological father.
[324] She speaks of the parents and identifies that they do have a father and mother; notwithstanding the children call the foster mother “mom” and the foster father “dad”. She refers to the biological parents as their Mom and Dad.
[325] She is open in speaking with the children that they have biological parents as well as themselves and their extended family. She has advised the children that they are very special.
[326] She had a conversation with H. in which she said “you are a very special girl to have two parents and two grand parents” to which the child responded “I am, am I?” The foster mother is not afraid to raise the issue . The children are part of their own large extended family.
[327] The foster mother is familiar with B.L. and describes him as a pretty good guy, “a nice father” who will listen to her and follow her instructions.
[328] The children call the babysitter “Nanny” and they call the foster mother’s sister “Grandma”.
Legislative Obstacle to Adoption
[329] There is at first glance an obvious “legislative obstacle” in granting access to a parent when adoption is contemplated.
[330] Paragraph 70(3) of the Children and Family Service’s Act states as follows:
“No child in permanent care and custody and in respect of whom there is an order for access pursuant to subsection (2) of section 47 may be placed for adoption unless an until the order for access is terminated pursuant to section 48.”
[331] Absent consent of the Agency or the party who has been granted access, litigation to dispense with that consent is required.
[332] There are financial and emotional costs associated with an Application to Terminate Access.
[333] These are weighty considerations to prospective adoptive parents who, unlike most respondents before the court in child protection proceedings, do not qualify for legal assistance.
Burden of Proof
[334] During the protection application process, up to an including final disposition, the Agency bears the burden of proof.
[335] The Agency is usually in the best position to be informed and to inform the court about the placement details during the litigation process. They control the placement. The parent does not.
[336] However, the court must delve into what, if any, effect ongoing access (as just one example) might have on the integrity and viability of the placement.
[337] Section 20, section 39(8) and section 44(1)(3) of the Act requires the Agency to consider certain factors that support sustaining family and community connections when considering temporary care.
[338] The court is also directed in section 42(3) to consider certain considerations before making a placement decision.
[339] Thus, if placement were not in the best interests before permanent care while the child was before us, the court would have a responsibility to respond to issues that might arise before us regarding placement and the children’s best interests.
[340] After permanent care, the purpose of looking at the placement may differ but the responsibility to do so when the best interests of the child is at stake does not.
[341] The court must delve into what, if any, effect ongoing access (as just one example) might have on the integrity and viability of the placement.
[342] However, to read the comments of Chief Justice MacDonald in Children’s and Family Services of Colchester County v. KT., 2010 NSCA 72, as limiting our review because it occurs in a child protection proceeding, that is to say restrictively, would unnecessarily narrow the focus in each case that comes before. This would also create a conflict with other sections of the legislation (section 3).
[343] I do not believe these comments were intended to avoid a best interests analysis.
[344] A restrictive approach would not be congruent with the spirit and intent of the legislature in matters concerning children and access to children. Nor would it be congruent with the case law that has developed around access considerations.
[345] Such an approach, I suggest could sabotage the intentions of section 3(2) of the Children and Family Services Act and the vast body of case law that emphasizes the duty of the courts to exercise it’s discretion and judgement in addressing a child’s best interests.
[346] To interpret Children and Family Services of Colchester County v. K.T. restrictively would impair our ability as judges of first instance to assess all relevant factors as is required of us in the Children and Family Services Act and the Supreme Court of Canada in Young v. Young.
[347] In M.L. (which had no such section as 47(2)) , Justice Gonthier cautioned that:
“access is the exception and not the rule and ...if adoption is more important than access for the welfare of the child and would be jeopardized if a right of access were exercised ,access should not be granted.”
[348] As such M.L. and K.T. are consistent with each other.
[349] One must not use C.B. as authority for permission to avoid a best interests analysis.
[350] We must look to the weight of historical authority to find a strategy to consider access.
Application of Law to Facts
[351] We need to know what effect access will have on the child’s placement.
[352] Will access destabilize the placement or enhance the child’s life without destabilizing the placement?
[353] The court has “a supervisory role” when reviewing a placement plan if the plan does not, in the courts eyes, meet the best interests test.
[354] The direction of the Court of Appeal in this case implicitly requires the court to ensure it is in a position to carefully assess and articulate it’s reasoning for denial of access to this mother.
[355] That demands of trial judges that we make the enquiry regarding access; weigh the risks and benefits of the competing plans as articulated in Young v. Young.
[356] This appears to move trial courts from what was a hands off role to a more expansive role.
[357] Terminating all contact between parents and children is perhaps one of the most invasive actions the Act contemplates. It is also one of the most difficult decisions Family Court judges must make.
[358] An order prohibiting contact, save for a successful appeal, effectively terminates their rights as parents and lays the path for filing a Notice of Intent to Adopt.
[359] Parent are ousted from an opportunity to apply to terminate permanent care once a Notice of Intent to Adopt is filed.
[360] The question in this circumstance is whether or not access by the mother to her children, or by the father to his children, would jeopardize their current placement.
[361] Will this access in this circumstance of a kinship placement qualify as a special circumstance or do other special circumstances exist or will access to the biological parents be in the best interest of the children?
[362] There is a presumption against access due to section 47(2)this legislative enactment.
[363] An analysis as to whether access should take place requires a consideration of the best interests of the children, the paramount consideration as articulated in section 2(2); it requires an analysis of the positives and negatives, the potential harm and a weighing of the possible plans in evidence.
[364] In assessing the issue of access based upon the evidence in the final disposition stage, I did not permit access.
[365] The parents had not met the burden of proof to show that access was in the children’s best interests.
[366] The new evidence from the foster parent confirmed that the foster mother was prepared to and had provided supervised access post permanent care.
[367] However, she had concerns about the exacerbation of the older child’s (H.’s) behavioural difficulties after the mother’s visits.
[368] These difficulties were already set out in the Parental Capacity Assessment dated April 7, 2010.
[369] The foster mother also advised that she was not consulted in advance by the parents when they showed up at her family’s door, post permanent care, to see the children.
[370] The foster mother is concerned about access. It occurs spontaneously, without her consent, without preplanning and without notice.
[371] She is concerned about the effects of contact between H. and her mother given the behaviour H. exhibits after these visits
[372] She also confirmed that while she had not filed a Notice of Intent to Adopt she did in fact wish to adopt the children.
[373] She anticipates receiving a report from the psychologist who is currently seeing H. She hopes to have recommendations to address H’s behaviour.
[374] What, if any, access should be granted to the biological parents in this circumstance?
[375] If the court grants access that, in and of itself, will not be a deterrent should the foster parent be able to adopt in the future.
[376] These children are able to connect with many of their extended family without court intervention.
[377] Without court intervention, the foster mother has permitted limited and unscheduled contact between parent and children.
[378] The needs of the children are currently being addressed and have been addressed for the last three and a half years by the foster mother.
[379] H. was disturbed by something when she arrived at this foster parent’s home and that disturbance came out of her parental environment previous to the foster mother’s care. That is being addressed by the foster mother with the assistance of the Mi’kmaw Agency and the psychologist.
[380] There is no suggestion that the mother or the father have abused this child.
[381] It is their own inability to address their own lifestyle issues that placed these children in circumstances where they had to be removed from their parental care and placed in the permanent care of the Agency.
[382] The foster mother has already exhibited great dedication and commitment to these children, both in addressing their day to day needs and in keeping them in close contact with their extended family.
[383] She has already permitted contact even though she did not initiate it. Her historic actions corroborate her in-court testimony in which she indicates that she is prepared to promote access and has done so on a voluntary basis.
[384] I have the very limited evidence from both the father and the mother.
[385] I have no evidence regarding whether the mother has gained insight into the concerns that resulted in the permanent removal of the children.
[386] I have no information whether the courses have resulted in a deeper understanding of how the parental issues affected their ability to parent.
[387] I have no information on how, if at all, the courses and passage of time affected the life style and living conditions of the parents.
[388] I have no new information on whether the mother and father remain drug free.
[389] I have no evidence as to whether the mother and father’s living circumstances are more stable than at the time of the permanent care hearing.
[390] I do not know at all about the mother’s living circumstances.
[391] I have no evidence as to the results of any counselling that the parents have attended.
[392] I do not know if the mother has been able to enter into and maintain adult relationships, free of domestic violence.
[393] I have no evidence on which I could draw conclusions that the parents lives are sufficiently stable to allow then to have contact with the children.
[394] In other words, I have no evidence on which I could conclude that there has been a sufficient change in circumstances in their lives, individually, from the date of the Permanent Care Order to today’s date.
[395] Should H.’s behaviour continue to destabilize, that would be difficult in the kinship placement household. It could potentially jeopardize her placement.
[396] It is also clear to me that if the contact between the biological parents and the children were not carefully managed it could have an adverse affect on the foster family and on their willingness to proceed.
[397] The evidence I have is that neither the mother nor the father approach visitation with notice. Access is sporadic and apparently unplanned.
[398] The mother arrives according to her own schedule, does not ask for permission . She simply shows up to meet with the children.
[399] In many situations, this would indeed be problematic.
[400] However, in this Mi’kmaw community, the foster mother has approached these visits in a wise and mature manner, watching the visits to ensure they are positive and child focussed; allowing them for a limited period of time and bringing them to a conclusion in an appropriate manner.
[401] The foster mother lives and works away from her community in C.I. However, she finds herself in C.I. and in the parents’ community frequently.
[402] Thus, as long as the biological parents live there, there will be many occasions in which the community celebrates together and there will be the probability of contact between the children and their biological parents.
[403] This becomes more an issue of regulation of contact and not whether it will happen because, in all probability, it will happen.
[404] Regulation of this certainty is in the best interests of the children.
[405] It is clear to me that with respect to B.L., he is likely, without the necessity of court order, to have contact with his children as long as he maintains a cordial and appropriate relation with his extended family and in this instance, with the foster mother, his grand aunt.
[406] If I were to draw a conclusion now based only on the parents’ further information I would have insufficient evidence to meet the burden of proof to show that the continuation of visits is in the children’s best interests.
[407] It is important to avoid interference with or place at risk the integrity of the foster mother’s household by creating a schedule that places higher demands on the foster mother and increases H.’s behavioural problems.
[408] Continuity of care after this extended foster placement is, as we know, historically critical.
[409] This is solely a situation where the court must carefully assess whether an order demanding the foster mother promote access with a parent ought to be put in place and what, if any, effect that would have on the integrity of the foster parent’s household.
[410] After this matter comes before the court and this is finalized, it will be the foster parent who will have to live with the consequences of any order imposed on her while she maintains the day to day care of these very young children.
[411] I am mindful of the limited but powerful role the courts play in the lives of these parents and foster parents.
[412] I refer to Gordon v. Goertz, [1996] 2 S.C.R. 27, which specifically recognizes the court's limited capacity to manage the day-to-day child rearing decisions or indeed the efficacy of maintaining a watching brief on the family’s day-to-day living:
“As Goldstein, Freud and Solnit stress, an important function of the law on divorce or separation is to reinforce the remainder of the family unit so that children may get on with their lives with as little disruption as possible. Courts are not in a position, nor do they presume to be able, to make the necessary day-to-day decisions which affect the best interests of the child. That task must rest with the custodial parent, as he or she is the person best placed to assess the needs of the child in all its dimensions.. .Once a court has determined who is the appropriate custodial parent, it must indeed it can do no more than, presume that that parent will act in the best interests of the child. [Emphasis added]
It follows that where, as here, a decision of the custodial parent is challenged by the non-custodial parent on the basis that it is not in the child's best interests, “[t]he emphasis should be . . . on deferring to the decision-making responsibilities of the custodial parent, unless there is substantial evidence that those decisions impair the child's, not the access parent's, long-term well-being.” (MacGyver v. Richards, supra, at p.445 (per Abella J.A.); emphasis added) It must be remembered, as Twaddle J.A. points out in Lapointe v. Lapointe, supra, at p. 620:
In all but unusual cases, the custodial parent is in a better position than a judge to decide what is in the child's best interests. A judge can scrutinize the decision, ensure that it is reasonable and even say, when clearly shown, that the custodial parent's decision is in fact not in the child's best interests, but initially it is the person entrusted with the responsibility of bringing up the child who probably knows best.”
[413] Both parents have been given the opportunity to present evidence about access. I am surprised at the sparsity of evidence, the lack of verification or corroboration before me by each of them.
[414] I am satisfied on the totality of the evidence that the foster mother intends to adopt. I am satisfied that she will keep the children’s biological and cultural history alive. Without court intervention, the children will see their father.
[415] The children will know their heritage even if the children continue to identify the foster mother and father as Mom and Dad.
[416] I am also satisfied that the foster mother would continue to allow the parents some contact as long as that contact did not cause damage to the children.
[417] The risk relates to the effect of contact with the mother on H.’s behaviour.
[418] I cannot measure the potential effect on the children should the parents continue to arrive unannounced and visit with the children as they move into adolescence.
[419] I conclude that the court should intervene as little as possible with the foster parents, a position apparently adopted by the Agency.
[420] The foster mother makes child focussed decisions as it relates to access to the biological parents with apparently little Agency intervention. Indeed, given she did not initiate the chance visits, her behaviour is quite generous, understanding and wise.
[421] I also conclude that it is important that the foster mother, through the Agency, have a degree of control over any visits, to make decision about how long they should last , how often and to observe and modify should visits become problematic from the children’s perspective.
[422] The father’s community involvement appear to show some initial evidence of maturation and a desire to be a contributing member of his community.
[423] I have no evidence before me that would allow me to draw any more sophisticated conclusions as to the nature and extent of this maturation.
[424] The mother has taken additional courses. I have insufficient evidence from the mother or any collaterals to the weight or the effect these courses have had on her or the effect her maturation has had on her lifestyle choices.
[425] The foster mother wishes her sister to supervise any visits that are to take place.
Conclusion
[426] The new evidence I have from the foster mother indicates that contact with biological family and the parents is probable but permissible without interfering with the integrity of the household.
[427] Contact has to be managed to allow the Agency and the foster mother the ability to control the contact and to cease contact if it becomes problematic.
[428] The access is for the purpose of keeping the children aware of their biological parents and not to facilitate a parenting relationship as one would expect in a private custody situation.
[429] The parents have not presented sufficient evidence to allow me to reinstate access that would maximize contact.
[430] To help the foster mother and the Agency regulate the inevitable visits and promote the stability of the children’s household making the visits more predictable in frequency and duration, I order:
1) one supervised Christmas visit for each parent for a duration not exceeding one hour unless otherwise agreed upon by the Agency in consultation with the foster mother; and
2) one supervised summer visit during which time the parents may either see the children at the Aunt’s home at or around the Mission time or a summer event (such as a ball game, soccer, etc.) in a manner as agreed upon in advance by the foster mother.
[431] The foster mother wishes her sister to be the supervisor and the Agency may certainly consider this as an option.
[432] The mother and father are not to initiate any other visitation unless agreed to in advance by the Agency in consultation with the foster mother.
[433] The mother must follow the foster mother’s directions in order to ensure the stability of the home and minimize any negative impact of visit on H.
[434] Regular, periodic visits will likely destabilize the children and may be problematic for H. and her behavioural problems.
[435] Should H’s behaviour worsen, the nature and frequency of the visits ought to be revisited by the Agency.
[436] Should the foster mother, in consultation with the Agency, agree that the children could profit from further visits they shall be permitted to arrange such other visits as necessary.
[437] The reasons for determining this is in the best interests of the children arises out of the foster mother’ evidence. These children know their parents, have an attachment to them and will likely be seeing them at major community events.
[438] I have crafted this Decision to avoid imposing an onerous and possibly destabilizing schedule on the Agency and most particularly, on the foster family, while at the same time respecting the decisions of the Agency with the defacto parent in making important decisions about best interests.
[439] The burden rested with the parents. They did little to satisfy this burden.
[440] The father appears to be making some progress but I am unable to conclude whether there is meaningful change.
[441] The mother is elusive, in part because of her inability to trust the Agency. I understand that and I recognize that this comes out of her history much of which was outside of her control.
[442] I order this access to assist in better regulating conduct so as to maximize the benefit of this contact for the children and minimize the unscheduled and unilateral nature of these visits and the effect on the kinship placement and the foster home.
[443] Counsel for the Agency shall draft the order.
Moira C. Legere Sers, J.