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Concise Overview of the Appeal / Factum of the Respondent D. B.

PART I

CONCISE OVERVIEW OF THE APPEAL

  1. This appeal considers whether or not a judge of the Family Court for the Province of Nova Scotia, having made findings of fact supporting the position that permanent care and custody is appropriate but that adoption is contrary to the best interests of particular children in particular circumstances, must nevertheless give priority to the Minister’s plan of care to place children for adoption over all other interests at play.
  1. This appeal further considers the roles of section 2 of the Children and Family Services Act [the “Act”]and section 47(2)(a) and (d) in the identification and interpretation of the means by which a child’s best interests may be achieved under the Act.
  1. The Respondent, D.B., submits that a judge of the Family Court is entitled, having made a finding that adoption for a child in permanent care is not in that child’s best interest, to determine that s. 47(2)(a) should not bar ongoing access between a child and a parent with whom he has a necessary attachment.

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Concise Statement of Facts / Factum of the Respondent D. B.

PART II

CONCISE STATEMENT OF FACTS

  1. The Respondent does not dispute the facts as contained in the Factum of the Appellant; however, the Respondent would add some additional facts.
  1. In making the comment ‘I regard the treasury as a bottomless pit to be raided as we see fit’, referred to by the Appellant at page 3 paragraph 13 of the Appellant’s factum, the learned trial judge was responding to concerns raised by counsel for T.H.that a lack of agency resources was being touted as justification by agency personnel for repeatedly cancelling court ordered access between T.H. and her sons. On the issue of the Minister’s duty to comply with court orders, Judge Levy went on to note, “It’s not up for them [the Minister] to say, We will comply or won’t comply or we will partially comply…if there’s to be reasonable access or if it’s to be specified access that shall occur”[Appeal Book 2, Transcript at page 33, line 6].
  1. Despite the above comments, in his decision at page 32, the learned trial judge acknowledged the reality of the budgetary restrictions placed upon agency personnel, writing, “in an imperfect and under-resourced world it is unreasonable to demand flawless execution and error-free judgement by an agency. Would that it could be so”.
  1. During the hearing, the preponderance of evidence offered by expert witnesses for the Minister concluded that both N.B. and J.B.’s needs would best be met if they were placed in the permanent care of the Minister but continued to have contact with their mother, T.H.
  1. Dr. Gerald Hann, the child psychologist who prepared psychological assessments for both the children and T.H., testified in support of the Minister’s application to have N.B. and J.B. placed in the permanent care and custody of the Minister. In endorsing permanent care Dr. Hann did, however, express the view that the children’s needs would be best met if they were to main in their current foster homes [Appeal Book Part 2, Transcript at page 578, line 7].
  1. Dr. Hann further noted on direct examination that he would have concerns about the children’s behaviour regressing if contact with their mother were terminated. Referring to the younger son, in particular, he stated:

So as long as access with the biological parent is not disruptive, it’s seen in the framework of meaningful and beneficial to the children. Because it really should be driven by what’s good for the children … I think it might be detrimental to say, No more contact with mother. I think it could cause a setback for the behaviour, and in particular, J.B. I would be very concerned about that [Appeal Book Part 2, Transcript at page 258, line 1].

  1. Additionally, on the issue of the Minister’s request for no access between T.H. and the boys, Dr. Hann indicated in both direct and on cross-examination that he believed it to be in the boys’ best interest to continue to have contact with their mother. In particular, when asked by counsel for T.H.to comment on the Minister’s policy of advocating a severing of parental and foster parent contact in order to broaden the pool of potential adoptive families available to N.B. and J.B., he stated:

I think it would not be in the children’s best interest to place them for adoption and to sever parental contact … With regard to the adoption, I mean, it’s only going to amplify the problems [with attachment disorder], potentially, right? Because you’re going to sever, you know, an attachment which is insecure but positive… [Appeal Book Part 2, Transcript at page 730, line 13].

  1. Although she too endorsed the Minister’s request to have both N.B. and J.B.placed in the permanent care and custody of the Minister, child psychiatrist Dr. Pippa Moss expressed concerns similar to those of Dr. Gerald Hann respecting the Minister’s proposal to sever the boys’ contact with T.H. When her reasons for recommending ongoing access between T.H. and N.B. in particular were questioned by counsel for the Minister, she responded:

Because all of the research into the best needs of children says that children do better when they maintain contact with people to whom they have an attachment. And there’s no doubt that he does have an attachment with mom and she has an attachment to him and to disrupt that is not going to be in his best interest [Appeal Book Part 2, page 1604, line 20].

  1. On her direct evidence, Dr. Moss also stressed the importance of N.B. remaining in his current placement, stating, “If I was concerned that N.B. was going to be moved from foster home to foster home with a lot of home breakdown I would not recommend that [permanent care] at all”[Appeal Book Part 2, page 1606, line 10].
  1. At a later point on cross-examination by counsel for T.H., Dr. Moss noted that much of N.B.’s progress up to that point had beendue to the fact that he had been placed with a “very experienced foster mom” and observed:

he’s probably doing better than many kids with his degree of behavioural challenge would do. Most children that are as challenging as N.B. would probably have been through many foster homes by now and the difficulties would have been compounded [Appeal Book Part 2, page 1676, line 19].

  1. Over the lifetime of this protection matter, the caseworker in charge of the H/B file changed a number of times, with the most recent reassignment occurring in July of 2009. At that time Sandra Mason assumed control of the file. Ms. Mason and her supervisor Paula Rideout were responsible for preparation of the Plan of Care filed by the Minister in relation to this file on September 24, 2009. The plan referenced the possibility of access between T.H. and the children until such time as the children were adopted. The plan was, however, silent on the issue of ongoing access between the boys themselves.
  1. Dr. Hann’s recommendations, as expressed in the psychological assessments prepared by him in relation to N.B., J.B., and T.H. were submitted approximately two weeks after the Plan of Care for the children as filed. No revisions were made to the Minister’s Plan of Care after Dr. Hann’s recommendations were received and the Minister continued to take the position that adoption with no continuation of access with their mother would be in the boys’ best interests.

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Points in Issue / Factum of the Respondent D. B.

PART III

POINTS IN ISSUE

  1. The points in issue are as set out in the Factum of the Appellant:
  1. Did the Learned Trial Judge err in law by concluding that he had the jurisdiction to grant Orders for Permanent Care and Custody upon terms and conditions respecting the children’s care and placement?
  1. Did the Learned Trial Judge err in law by concluding that he had the jurisdiction to impose terms and conditions calculated to prevent the children from being placed for adoption?

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Standard of Review / Factum of the Respondent D. B.

PART IV

STANDARD OF REVIEW

  1. As the Respondent, T.H., notes at paragraph 6 of her factum, in child protection matters, an appellate court is only to intervene “if the trial judge erred in legal principle or made a palpable and overriding error in finding the facts” Children's Aid Society of Cape Breton-Victoria v. A.M., [2005] N.S.J. No. 132 [“A.M.”] at paragraph 26.
  1. This conforms with the recognition of court that the trial judge as the individual who heard the evidence, is best positioned to make findings pertinent to the matter. In New Brunswick (Minister of Health and Community Services) v. M.L.,[1998] 2 S.C.R. 534 [“M.L.”] Justice Gonthier, writing for the court at paragraph 35, cited approvingly Spence J.’s decision in Adams v. McLeod, [1978] 2 S.C.R. 621 where he held at pages 625-26:

Again our courts have been unanimous that the most authoritative pronouncement thereon is by the trial court judge who hears the evidence and assesses it. . . . However, as to custody issues, that caution must, in my view, become very strong indeed. Those issues are so intensely personal that the trial court judge is able to do, and does, far more than merely assigning credibility.

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Brief of Argument / Factum of the Respondent D. B.

PART V

BRIEF OF ARGUMENT

Issue 1

That the learned trial judge erred in law by concluding that he had the jurisdiction to grant Orders for Permanent Care and Custody upon terms and conditions respecting the children’s care and placement.

  1. The Respondent, D.B., has read the arguments submitted on behalf of the Respondent, T.H., on this issue and concurs with her position.

Issues 2

That the learned trial judge erred in law by concluding that he had the jurisdiction to impose terms and conditions calculated to prevent the children from being placed for adoption.

  1. While the learned trial judge accepted the expert evidence of Drs. Hann and Moss that removal from their foster homes would be contrary to the children’s best interests, it is important to note that the orders concerning the permanent care and custody of N.B. and J.B.do not prohibit either child from being adopted. Nor do they prohibit the Minister from ever removing the children from the care of their respective foster parents, as evidenced by the wording of clause three of each order which simply states that the Minister will maintain the child “in his current foster home so long as possible” and facilitate sibling access between the children [Appeal Book Part 1, Tabs 1 and 2].
  1. The orders do safeguard the children’s ongoing contact with their mother and task the Minister with considering, should either foster parent placement ever break down, whether permanent care and custody continues to be in the child’s best interests. However, this requirement to consider the best interests of the children in the event of a proposed change in foster placement should, it is respectfully submitted, be read more as an ongoing reminder to the Minister of the paramount consideration when engaging in permanency planning for these children – an exercisein which the Minister would, presumably, engage in any event.
  1. If, as it is respectfully submitted, clauses two and three of the respective orders do not actually prevent the children from being adopted, then the only other potential source of the Minister’s complaint that adoption has been thwarted lies in the learned trial judge’s decision to grant access to T.H.. The Respondent respectfully submits that neither the existing legislation in Nova Scotia, nor the caselaw relevant to this issue, would support the view that an order for access with their mother will bar either of these boys from being adopted, assuming appropriate families capable of meeting their needs present themselves.
  1. In M.L., supra,one of the central questions the Supreme Court of Canada was asked to examine was the issue of whether the New Brunswick Court of Queen’s Bench and Court of Appeal had “jurisdiction to make an access order in conjunction with an order for permanent guardianship, either under the Act or by virtue of their parens patriae jurisdiction”[paragraph 15].
  1. Justice Gonthier, writing for the Court, found this question to overwhelmingly be answered in the affirmative, noting at paragraphs 30 - 32:

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.

  1. Having found this authority within the New Brunswick Act, the Court declined to examine the issue of whether this authority could also flow from parens patriae jurisdiction.
  1. At a later point in the Court’s decision, Gonthier J., noted that both Ontario and Nova Scotia legislation impose a rebuttable presumption in favour of no access post-permanent care, but recognised that there are clearly instances where access, even in the face of agency plans to adopt a child, should occur.
  1. The Court found no inconsistency in principle between guardianship and access, and was particularly unreceptive to the Minister’s argument that the court did not have the authority to order access post-permanent care because it would have the effect of reducing the pool of families willing to adopt, noting at paragraph 41:

In Re M.A.G., supra, at p. 451, in the Court of Appeal, the Minister urged that owing to the fact that a guardianship order is generally a prelude to adoption, and that potential adoptive parents may be discouraged by the existence of an access right, it would be illogical to grant access at the same time as a guardianship order. Hoyt J.A. felt, with good reason, that these concerns were exaggerated.

  1. Justice Gonthier further expanded on this in paragraph 42 where he noted, “For one thing, while it is true that permanent guardianship is generally a prelude to adoption, that is not always the case, as it may not be in the best interests of the child in question” (M.L., supra, emphasis mine).
  1. Justice Gonthier additionally noted at paragraph 43:

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.)) [emphasis mine].

  1. At paragraph 44, Justice Gonthier specifically referenced the presumption in both Ontario and Nova Scotia legislation that access is revoked barring “exceptional circumstances” and noted that the burden of rebutting the presumption rests with the party claiming that access would be in the best interests of the child. He further stated at paragraph 50 that, in cases where an adoption has been identified to be in the best interests of the child and access would jeopardize it, an order for access should not be made:

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.)) [Emphasis mine].

  1. The Court clearly recognised the priority to be given adoption, but not to the extent that it would trump all other considerations of a child’s best interest or justify acting contrary to a child’s best interest, noting at paragraph 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.)).

  1. Nor did the Supreme Court of Canada in M.L., supra, suggest that adoption, as a best interest of a child, is solely within the decision making powers of the Minister.
  1. This Court applied similar principles in Children’s Aid Society of Cape Breton-Victoria v. M.H.,[2008] NSJ No. 368 [“M.H.”]when it held at paragraphs 36 and 37:

36 The provision for access in the face of permanency planning is an exceptional remedy. I accept that it should be rarely ordered. However, s. 47(2)(d) of the Act must have some function and some role, or it would not have been written, albeit in a vague and uncertain manner. This is one of the rare cases where I find that the provisions of s. 47(2) have been met. Because of the unique circumstances of this case, and because of the unique needs of this child, I find that special circumstances do exist which justify the making of the order for access.