2012 NBCA 19, 2012 NBCA 19

COURT OF APPEAL OF NEW BRUNSWICK 62-11-CA THE MINISTER OF SOCIAL DEVELOPMENT (Applicant) APPELLANT LA MINISTRE DU DÉVELOPPEMENT SOCIAL (Requérante) APPELANTE - and - - et - M.G. and B.B. (Respondents) RESPONDENTS M.G. et B.B. (Intimé

s) INTIMÉS Minister of Social Development v. M.G. and B.B., 2012 NBCA 19 Ministre du Développement social c.

M.G. et B.B., 2012 NBCA 19 CORAM: The Honourable Justice Richard The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge Richard L’honorable juge Quigg L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: March 30, 2011 Appel d’une décision de la Cour du Banc de la Reine : Le 30 mars 2011 History of Case: Historique de la cause : Decision under appeal: 2011 NBQB 91 Décision frappée d’appel : 2011 NBBR 91 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: October 19, 2011 Appel entendu : Le 19 octobre 2011 Judgment rendered: February 23, 2012 Jugement rendu : Le 23 février 2012

Reasons for judgment: The Honourable Justice Richard Motifs de jugement : L’honorable juge Richard Concurred in by: The Honourable Justice Quigg The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Quigg L’honorable juge Green Counsel at hearing: For the appellant: Maurice C. Richard For the respondent B.B.: Jason T. Dempsey The respondent, M.G., appeared in person Solicitor for the child, S.G., Yves J. Robichaud Avocats à l’audience : Pour l’appelante : Maurice C. Richard Pour l’intimé B.B. : Jason T. Dempsey L’intimée, M.G., a comparu en personne Avocat pour l’enfant, S.G., Yves J.

Robichaud THE COURT The appeal is dismissed without costs. LA COUR Rejette l’appel sans dépens. The judgment of the Court was delivered by RICHARD J.A. I. Introduction [1] On March 30, 2011, a judge of the Court of Queen’s Bench issued a Guardianship Order with respect to a child of the respondents. In the Order, the judge reserved a right of access for the child, who, at the time, was almost 8 years old, so as to enable the child to keep in touch with her natural parents. The judge specified how the access was to occur. The Guardianship Order has not been

appealed, but the Minister of Social Development has appealed the access provision.The Minister sought leave to adduce evidence on appeal regarding the difficulties ofimplementing the structured access. After hearing the Minister’s motion, we receivedthe new evidence. However, after the hearing the appeal, we dismissed it, andindicated that reasons for our decision would follow. These are those reasons. [2] The preservation of a child’s right of access to his or herbiological parents despite a guardianship order is reserved for rare situations: seeT.L.M. v.

Department of Social Development (formerly the Minister of Family andCommunity Services), 2009 NBCA 8, 341 N.B.R. (2d) 33, citing New Brunswick(Minister of Health and Community Services) v. L.(M.), (SCC),[1998] 2 S.C.R. 534, [1998] S.C.J. No. 52 (QL). As stated in L.(M.), access is theexception and not the rule and “[t]he decision as to whether or not to grant access is adelicate exercise which requires that the [trial] judge weigh the various components ofthe best interests of the child” (para. 51).

In the present case, the judge applied theseprinciples of law and concluded that, on balance, the child’s right of access should bepreserved. In our view, this decision is justifiable on the facts of the case and ought tobe afforded deference. II. Factual Background [3] The respondents, M.G. and B.B., are respectively thebiological mother and father of a young girl who became the subject of aguardianship application after the Minister of Social Development considered her tobe in need of protection.

The Minister’s application led to a hearing, following whicha judge of the Court of Queen’s Bench determined the Minister’s concerns were well-founded, and, upon applying the relevant criteria, concluded it was in the child’s bestinterests that a Guardianship Order be issued. Since the Guardianship Order is notthe subject of any appeal, suffice it to say the application judge found evidence ofneglect and of the biological parents’ inability to properly parent the child because ofalcohol/drug addictions and incarceration. The judge’s extensive reasons for decisionare reported at 2011 NBQB 91, [2011] N.B.J.

No. 110 (QL). [4] At the hearing, only M.G. opposed the guardianshipapplication. In the alternative, she joined with B.B. in seeking an order that a right ofaccess be preserved if a guardianship order was to be issued. Counsel appointed onbehalf of the child informed the Court the 7-year-old wants to be with her mother,but nevertheless argued it was in the child’s best interest that the GuardianshipOrder be granted. However, he too sought an order granting the child access to herbiological parents. Only the Minister opposed the “reservation of any right of accessfor the child” (para. 4).

[5] Upon granting the Guardianship Order, the application judge then turned to the requested access provision. He acknowledged that preserving a right of access in a guardianship situation should only be done if it is in the best interests of the child, and recognized the need to weigh many factors in making this determination. Among these factors, the judge emphasized the question of whether or not attaching an access provision to a guardianship order would jeopardize any chances of adoption.

The judge noted the Minister’s position that “under the circumstances of this case if the court grants access it should be well defined” (para. 283). With this, the judge considered the facts and placed particular weight on the report and testimony of a psychologist who had conducted a court-ordered psychological and parenting capacity assessment. [6] The judge concluded that this case presented exceptional circumstances because of the child’s age and strong bond with her parents.

In the final analysis, he held there was “no need to place on this child the further loss of not being able to maintain a relationship with her parents” (para. 300) and, in particular, was not satisfied on the evidence that “access would inappropriately in this special case jeopardize [a]doption” (para. 303). However, the judge acceded to the Minister’s request, supported by the psychologist’s opinion, and structured the access that was to be allowed. He disposed of the matter as follows: 1.

A Guardianship Order is hereby granted pursuant to Section 56(1) of the Family Services Act , transferring from the parents M.G. and Mr. B.B. to the Minister on a permanent basis the Guardianship including the custody, care and control of and all parental rights and responsibilities with respect to S.G. (D.O.B. July 1, 2003). 2. Mr. B.B.'s access at this point will be limited to telephone access twice per month for 5 minutes or such lesser [time] as he may be permitted while incarcerated. The time is to be arranged by agreement between Mr.

B.B. and S.G.'s legal Guardian who ever that may be at the relevant time i.e. the Minister or Adoptive parent. Subsequent to Mr. B.B.'s release from incarceration he will be entitled to two supervised access visits per month for 1 hour each as long as same remains in the best interests of S.G. The supervisor shall be such responsible adult as agreed upon between the child's legal Guardian and Mr. B.B. Failing any such agreement the visit will be supervised by a professional access supervisor to be paid for by Mr. B.B. Mr.

B.B. will be responsible to ensure that during his participation in access that he does not allow the child to be in the presence of any person known to be involved in any illegal activities. Mr. B.B. shall not speak negatively about M.G. or any member of her family or S.G.'s legal Guardian or Foster Family at any time. M.G. will be entitled to two supervised access visits per month with S.G. for 1 hour each as long as same remains in the best interests of S.G. The supervisor shall be such responsible adult as agreed upon between the child's legal Guardian and M.G.

Failing any such agreement the visit will be supervised by a professional access supervisor to be paid for by M.G. M.G. will be responsible to ensure that during her participation in access that she does not allow the child to be in the presence of any person known to be involved in any illegal activities. M. G. shall not speak negatively about Mr. B.B. or any member of his family or S.G.'s legal Guardian or Foster Family at any time.

If at any time M.G. misses more than two consecutive visits without excuse deemed to be reasonable to S.G.'s legal Guardian all her access is suspended until further court order or until her legal Guardian deems access again in the best interests of S.G. If M.G. at any time attends to any access visit and appears to be under the influence of drugs or any other intoxicant her access is suspended until she produces a drug analysis acceptable to her legal Guardian or until further order of the court.

All terms and condition of access inclusive of time; location; who else may or may not be present during access are always to be at the sole discretion of S.G's Legal Guardian as determined to be in S.G.'s best interests. Other than the telephone access granted herein while Mr. B.B. is incarcerated any other telephone access will be at the sole discretion of her legal Guardian as determined to be in her best interests. S.G.'s Legal Guardian is always free to allow such further access as said Guardian may determine to be in the best interests of S.G. III.

Issues [7] The Minister appeals the access provision of the Guardianship Order, but does not seek to have it set aside. The Minister acknowledges that there was evidence to support an access provision, but seeks to have the provision varied so that the extent, manner and form of the access might be supervised access determined by the Minister or the child’s legal guardian based on the best interests of the child.

The Minister says the judge (1) “erred in law in granting the respondents a post-guardianship entitlement of access”, and (2) “erred in law in granting frequent and structured access to the respondents.” IV. Analysis and Disposition [8] In support of the first ground of appeal, the Minister submits the judge erred in his disposition of the matter when he stated the biological parents “will be entitled” to specified access. According to the Minister, the right of access is one reserved for the child and does not create an entitlement for the respondents.

Evidently, if the judge had ruled it was the respondents who had a right of access in this case, he would have been wrong. The law is clear that “access is a right that belongs to the child, and not to the parents”: L.(M.) , at para. 17. [9] In L.(M.) , it was argued the court had erred in recognizing a “right” to the parents. However, the Supreme Court explained as follows: The Court of Appeal did not recognize that the parents had a right of access; it simply allowed them to have access to the children. It used the expression "right" in the sense of permission. [para. 17]

[10] In our view, the same occurred in this case. The application judge did not give the parents an “entitlement” in the sense of rights. Rather, he merely used the word “entitled” in the sense of permission. This is obvious upon reading the full reasons of the application judge and, in particular, his identification of the issue as being a right of access for the child (para. 5), and his unequivocal statement that “[a]ny right of access after Guardianship is certainly the child’s right” (para. 221).

What the judge essentially did was specify when and under what conditions the child would have the right to see her parents. There is no merit to this ground of appeal. [11] With respect to the second ground, the Minister argues that structured access should not have been ordered because it had not been specifically sought by the child’s counsel. The Minister points out that structured access creates difficulties for both the Minister and the child and argues that discretion and flexibility should be the norm. We generally agree with this last proposition.

In fact, the new evidence we allowed the Minister to adduce on appeal illustrates the very point. It reveals difficulties arising out of B.B.’s incarceration, which have seriously impeded the implementation of the telephone access. [12] Nevertheless, we dismissed the appeal. The reason we did so is because of the deference we owe to a trial judge’s assessment of the best interests of a child in a situation such as this one, and particularly because the structured access provision in the Guardianship Order is not immutable in the sense that it cannot be changed.

In fact, one of the hallmarks of family law decisions is that changes in circumstances can result in changes in court orders. When he weighed all the factors relevant to determining the best interests of the child, the judge determined structured access, which he understood the Minister was seeking, was the best approach. In our view, a court of appeal must be circumspect in interfering with such a decision.

Decisions like this one, made in exceptional cases, unless either unreasonable or the product of an error of law or of principle, should withstand appellate review on application of the deference owed to trial judges and should be left to be varied, as appropriate, upon a change of circumstances that affects the best interests of the child. [13] For these reasons, the appeal was dismissed. No costs were ordered. ______________________________ J.C. MARC RICHARD, J.A.

WE CONCUR: _____________________________ KATHLEEN A. QUIGG, J.A. _____________________________ BRADLEY V. GREEN, J.A.