2012 NBCA 3, 2012 NBCA 3

COURT OF APPEAL OF NEW BRUNSWICK 164-10-CA N.J.P. (Respondent) APPELLANT - and - THE MINISTER OF SOCIAL DEVELOPMENT (Applicant) RESPONDENT N.J.P. (Intimé) APPELANT - et – LA MINISTRE DU DÉVELOPPEMENT SOCIAL (Requérante) INTIMÉE N.J.P. v. The Minister of Social Development, 2012 NBCA 3 N.J.P. c.

La ministre du Développement social, 2012 NBCA 3 CORAM: The Honourable Justice Larlee The Honourable Justice Bell The Honourable Justice Quigg CORAM : L’honorable juge Larlee L’honorable juge Bell L’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: November 22, 2010 Appel d’une décision de la Cour du Banc de la Reine : Le 22 novembre 2010 History of the Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: November 10, 2011 Appel entendu : Le 10 novembre 2011 Judgment rendered January 19, 2012 Jugement rendu : Le 19 janvier 2012

Reasons for judgment by: The Honourable Justice Quigg Motifs de jugement : L’honorable juge Quigg Concurred in by: The Honourable Justice Larlee The Honourable Justice Bell Souscrivent aux motifs : L’honorable juge Larlee L’honorable juge Bell Counsel at the hearing: For the appellant: Claude R. Losier For the respondent: Sonia Doiron and Lisa B. DiBonaventura Yves J. Robichaud, on behalf of the child Avocats à l’audience : Pour l’appelant : Claude R. Losier Pour l’intimée : Sonia Doiron et Lisa B. DiBonaventura Yves J. Robichaud, pour l’enfant THE COURT The appeal is dismissed without costs.

LA COUR Rejette l’appel sans dépens. The judgment of the Court was delivered by QUIGG J.A. I. Introduction [ 1 ] The appellant father, N.J.P, appeals a decision by a judge of the Court of Queen’s Bench, Family Division, dated November 22, 2010. The judge allowed an application by the Minister of Social Development, and in accordance with the relevant provisions of the Family Services Act , S.N.B. 1980, c. F-2.2, awarded the Minister guardianship of the appellant’s son, C.P. The father raises several grounds of appeal, most of which involve questions of fact, or questions of mixed fact and law.

One ground alleges the judge made an error of law. The judge determined it was in the “best interests of the child” to grant the guardianship order and declined to issue an access order.

II. Trial Decision [2] At the end of a five-day hearing, the judge gave an oral decision detailing his analysis of the best interests ofthe child based on the evidence before him. He heard and reviewed the accounts of several social workers who had been involved withthis family, the testimony of a child psychologist and others. The judge discussed his findings regarding the parents in two distinctphases of the decision, the portion relating to the father contained in paragraphs 45-97.

The judge determined although the father was“well intentioned”, it would not be in the child’s best interests to be in his custody. III.

Grounds of Appeal [3] While the father raised nine grounds of appeal in his Notice of Appeal, the written submission addresses onlythe following four: (1) the trial judge erred by rendering an oral decision, and by giving insufficient reasons in granting the guardianship to the Minister. (2) the trial judge erred by not providing reasons sufficient to explain why the right of access by the child to his father was not in thechild’s best interests. (3) the trial judge failed to consider all the factors outlined in Gordon v. Goertz and Hickey v.

Hickey. (4) the judge erred in law in his assessment of the criteria which defines the “best interests of the child” in the Family Services Act. IV. Standard of Review [4] In S.B. v. New Brunswick (Minister of Family and Community Services), 2006 NBCA 41, [2006] N.B.J.

No.167 (QL), Richard J.A. expressed the following views: It is common ground that the scope of appellate review in child protection matters, including guardianship cases, is very narrow.Considering the numerous decisions of the Supreme Court of Canada and of this Court on point, it would have been futile for any of theparties not to acknowledge the limited circumstances where appellate intervention may be justified: see, for example, New Brunswick(Minister of Health and Community Services) v. C.(G.C.), (SCC), [1988] 1 S.C.R. 1073 at para. 5, New Brunswick(Minister of Health and Community Services) v.

L.(M.), (SCC), [1998] 2 S.C.R. 534 at paras. 34-36, D.B. v. NewBrunswick (Minister of Family and Community Services) (2000), (NB CA), 228 N.B.R. (2d) 218 (C.A.), at paras. 6-7, Nouveau-Brunswick (Ministre des Services familiaux et communautaires) c. A.N. et Y.N. (2003), 264 N.B.R. (2d) 80 at para. 11,New Brunswick (Minister of Family and Community Services) v. M.D., 2006 NBCA 7 , [2006] N.B.J. No. 11 (C.A.) (QL) atparas. 5-7 and T.T. v. New Brunswick (Minister of Family and Community Services), [2006] N.B.J. No. 39 (C.A.) (QL) at para. 3.

Thesecases stand for the proposition, succinctly stated by Drapeau C.J.N.B. in A.N. at para. 11, that an appellate court will not intervene inchild protection cases "unless the trial judge's decision has no factual merit or was based on an error in principle, a failure to consider allrelevant factors or the consideration of an irrelevant factor." [Emphasis added.] [para. 3] (See also A.W. v. The Minister of Family and Community Services, 2007 NBCA 77, 322 N.B.R. (2d) 162; Van de Perre v. Edwards, 2001SCC 60, [2001] 2 S.C.R. 1014; A.M.K.H. v.

K.A.M., 2003 NBCA 33, 259 N.B.R. (2d) 291). [5] Therefore, the scope of appellate review with respect to guardianship cases is quite narrow and in the absence

of material error, such as a serious misapprehension of the evidence or an error of law, deference must be shown. V. Analysis A. Insufficiency of Reasons [6] In the present case, the father contends the judge erred by giving insufficient reasons in granting theguardianship order to the Minister and by giving the reasons orally rather than in writing. I do not agree.

When the oral reasons weretranscribed, the result was a 43-page decision, 23 pages of which detailed the father’s parenting skills, including examples of hisimpulsiveness, his excessive use of corporal punishment and his inability to provide a secure environment for the child. In T.L.M. v.Department of Social Development (formerly the Minister of Family and Community Services),, 2009 NBCA 8, 341 N.B.R. (2d) 33,Richard J.A. stated the following: Recently, the Supreme Court once again reviewed the principles that govern appellate review based on the sufficiency of the reasons. InR. v. R.E.M., [2008] S.C.J.

No. 52 (Q.L.), 2008 SCC 51, McLachlin C.J.C., for a unanimous Court, explained how courts of appeal mustapproach a ground of appeal that calls into question the sufficiency of reasons. She stated as follows: [...] courts of appeal considering the sufficiency of reasons should read them as a whole, in the context of the evidence, the argumentsand the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard, at paras. 46 and 50; R. v.Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 524).

These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show howthe judge arrived at his or her conclusion, in a "watch me think" fashion. It is rather to show why the judge made that decision. Thedecision of the Ontario Court of Appeal in Morrissey predates the decision of this Court establishing a duty to give reasons in Sheppard.But the description in Morrissey of the object of a trial judge's reasons is apt.

Doherty J.A. in Morrissey, at p. 525, puts it this way: "Ingiving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she madethat decision" […] .

What is required is a logical connection between the "what" - the verdict - and the "why" - the basis for the verdict.The foundations of the judge's decision must be discernable, when looked at in the context of the evidence, the submissions of counseland the history of how the trial unfolded. [paras. 16-17] [...] In Sheppard, the Court, per Binnie J. enunciated this "simple underlying rule": "if, in the opinion of the appeal court, the deficiencies inthe reasons prevent meaningful appellate review of the correctness of the decision, then an error of law [under s. 686 of the CriminalCode] has been committed" (para. 28).

However, the Court in Sheppard also stated: "The appellate court is not given the power to intervene simply because it thinks the trialcourt did a poor job of expressing itself" (para. 26). To justify appellate intervention, the Court makes clear, there must be a functionalfailing in the reasons. More precisely, the reasons, read in the context of the evidentiary record and the live issues on which the trial[focussed], must fail to disclose an intelligible basis for the verdict, capable of permitting meaningful appellate review.

An appellate court reviewing reasons for sufficiency should start from a stance of deference toward the trial judge's perceptions of thefacts. As decided in H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25, and stated in Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621 (para. 20), "in the absence of a palpable and overriding error by the trial judge, his or her perceptionsshould be respected". It is true that deficient reasons may cloak a palpable and overriding error, requiring appellate intervention.

But theappellate court's point of departure should be a deferential stance based on the propositions that the trial judge is in the best position todetermine matters of fact and is presumed to know the basic law. The appellate court, proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, thesubmissions of counsel and the live issues at the trial, reveals the basis for the verdict reached. It must look at the reasons in their entirecontext.

It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial. Ifthe evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealtwith the contradictions. If there is a difficult or novel question of law, it should ask itself if the trial judge has recognized and dealt with

that issue. [paras. 52-55] [para. 10] [Emphasis in original.] [7] In P.R.H. v. M.E.L., 2009 NBCA 18, 343 N.B.R. (2d) 100, Larlee J.A. added: In Van de Perre, Bastarache J. noted that in preparing reasons in custody cases, a trial judge is expected to consider each of the factorsoutlined in Gordon v. Goertz. However, he went on to state it would be unreasonable to require a judge to discuss every piece ofevidence when explaining his or her reasons. Thus, while a trial judge is not compelled by Van de Perre to discuss each of the factorsenumerated in Gordon v.

Goertz when evaluating the best interests of the child in a custody or mobility case, it nevertheless remainsprudent to refer to the relevant criteria. In Karpodinis v. Kantas (2006), 227 B.C.A.C. 192, [2006] B.C.J. No. 1209 (QL), 2006 BCCA272 at para. 26, the Court observed that mobility cases vary infinitely in their fact patterns and no case can provide a complete templatefor another.

Furthermore, in custody cases, wherein the governing consideration is the best interests of the child, the judicial inquiry isheavily fact-dependent and the decision is ultimately discretionary, the scope of appellate review is strictly limited. An appellate courtwill only interfere if the trial judge acted on some wrong principle or significantly misapprehended the evidence. In Young v. Young (2003), (ON CA), 63 O.R. (3d) 112 (C.A.), [2003] O.J. No. 67 (QL), Laskin J.A. cautionedagainst the use of conclusory reasons in family law cases.

He held that the three main rationales for reasoned decisions from R. v.Sheppard, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30 (QL), 2002 SCC 26, were also applicable in the family law context. These threerationales are: (1) public confidence in the administration of the justice system; (2) the importance of telling the losing party the reasonsfor having lost; and (3) making the right of appeal meaningful. The importance of sufficient reasons has similarly been affirmed by thisCourt of Appeal in A.M.K.H. v. K.A.M. (2003), 259 N.B.R. (2d) 291, 2003 N.B.J.

No. 171 (QL), 2003 NBCA 33 and Blanchard v.Légère [2009] N.B.J. No. 2 (QL), 2009 NBCA 2. See also Petrowski v. Waskul (2003), 173 Man.R. (2d) 237, [2003] M.J. No. 151 (QL),2003 MBCA 65 at para. 13. In R. v. Walker, [2008] S.C.J. No. 34 (QL), 2008 SCC 34, the Court emphasized that the parties are entitled to know why the judgereached his or her decision, and that reasons must be sufficient to allow for appellate review. However, an appellate court is not tointervene merely because a trial court did a poor job in expressing itself.

The Court held that reasons are sufficient if they are responsiveto the live issues of the case and the parties' key arguments. Sufficiency of reasons must be measured by the degree to which theyrespond to the substance of what was in issue. The live issues of the case must be dealt with, and the basis for the ruling must be clear. The Supreme Court's most recent pronouncement concerning the issue of adequate reasons for judgment is found in the decision of R. v.R.E.M., [2008] 3 S.C.R. 3, [2008] S.C.J.

No. 52 (QL), 2008 SCC 51, in which McLachlin C.J.C. advocates a functional context-specificapproach to the consideration of adequacy of reasons. Courts of Appeal which are considering the sufficiency of reasons should readthem as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for whichthey are delivered. The function of the reasons is to tell the affected parties why the decision was made, to provide public accountabilityand to permit effective appellate review.

The reasons need to show the path the judge followed from the evidence to the factual findingsto the legal conclusions. This approach was followed by this Court in New Brunswick (Minister of Family and Community Services) v.T.L.M. (Litigation guardian of), [2009] N.B.J. No. 19 (QL), 2009 NBCA 8, in which Richard J.A. discusses the question of sufficiencyof reasons to be applied in child protection matters. [paras. 10-13] [8] In this case the judge evidently applied the proper principles and provided reasons demonstrating the “bestinterests of the child” had been adequately considered.

Early in the decision, the judge discussed the criteria set out in s. 1 of the FamilyServices Act, and, when describing the situation respecting the mother, he applied the facts to each of these criteria. Although the judgedid not mirror that analysis when discussing the father, he did refer to s. 1 of the Family Services Act and, specifically, criteria (a), (

c) and(f). It cannot be said, upon a review of the reasons in their entirety and the evidence provided at the trial, that the judge failed to considerthe relevant criteria. As such, I am of the opinion the decision contains reasons sufficient to ensure the “best interests” of the child havebeen adequately assessed and would reject this ground of appeal. B. Right of Access

[9] The father maintains the judge erred by not providing sufficient reasons respecting the child’s right to haveaccess to his father. In 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), Gonthier J. delineated the factors to be considered when determining whether access should be grantedin guardianship cases. He stated: My consideration of whether access should be granted is based on the following principles. First, there is no inconsistency in principlebetween a permanent guardianship order and an access order.

Second, access is the exception and not the rule. Third, the principle ofpreserving family ties cannot come into play in respect of granting access unless it is in the best interests of the child to do so, havingregard to all the other relevant factors. Fourth, an adoption, which is in the best interests of the child, must not be hampered by theexistence of a right of access.

Fifth, access should not be granted if its exercise would have negative effects on the physical orpsychological health of the child. [para. 39] [10] Having reviewed the judge’s findings of fact and the testimony of the various social workers, the foster motherand the psychologist, I am persuaded the judge clearly expressed why an access order would not serve the “best interests of the child”.The judge explains: We know from the evidence how Mr. [P.] behaved vis-à-vis his son.

He has admitted in the evidence the physical force that hesometimes applies, he has admitted to different persons with whom he had discussions on this topic. We know his views regardingyelling, threatening and being physically forceful vis-à-vis his son, [C.]. We know he believes it is justified to behave towards his son because according to him it works. And he says, something to the effect it is the only thing that works with his son at times or insituations that he deems it important, that his child, as he puts it, listens.

Mr. [P.] also expressed himself to the effect that he does not believe that his anger, or the expression of his anger has a negative oradverse affect on his son. As I have said before there are many contra indications to this, the child complains how his father treats him.And his father largely admits it and tries to justify it. [paras. 81-82] [11] In his decision, the judge also reviewed the effect anger issues had upon the child.

The judge quoted thetestimony of the psychologist: […] [C.] has shown great ambivalence in relation to his father at times wanting to go for visits, while at other times refusing or showingevidence of anxiety in anticipation of the visits. Soiling his pants would be one example of his anxiety when visiting his father. Duringthe summer in which there was a period when there was no visit for a few weeks, the incidents had stopped completely whereas whenthe visits resumed with the father, C. began to soil his pants either before the visits or afterwards.

Children who are anxious and whocontinue to be exposed to the source of their anxiety will show this type of behaviour as they tend to exert a lot of self-control whenvisiting with the parent whereas when they return to their foster home, they cannot maintain this high level of self-control and thereforehave accidents of this nature. This can be seen as a form of regressive behaviour.

C. has as well verbalized his concern and upsetnessabout his father yelling at him.” [para. 74 ] [12] The judge found it would not be in the child’s best interests to allow access to his father and that reservingaccess could impede the chances of an adoption. This conforms to the criteria set out in L.(M). The Supreme Court is clear on point,reservation of access is the exception rather than the rule. I would dismiss this ground of appeal, as the judge made no error indetermining that a right of access to the appellant father is not in the “best interests of the child”.

C. “Best Interests of the Child” Criteria / Gordon v. Goertz [13] The third and fourth grounds of appeal should be combined. The father says the judge failed to consider thefactors outlined in Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27, [1996] S.C.J. No. 52 (QL) and Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518, [1999] S.C.J. No. 9 (QL) and the judge erred in his assessment of the criteria contained in thedefinition of the “best interests of the child” found in the Family Services Act. I disagree. The father relies on Hickey v.

Hickey whichdescribes the approach to be taken by appellate courts when determining the standard of review. Hickey concerned child and spousalsupport issues and is of little assistance in determining the case before us. With respect to the contention made by the father regarding the

judge’s failure to consider the factors delineated in Gordon v. Goertz , the father has not identified the specific factors which he claims the judge neglected to consider. Although Gordon v. Goertz can be distinguished from the case before us on the basis that it was a mobility case and thus dealt with custody issues where a change in circumstances existed, the second part of the two-stage test set out by McLachlin C.J.C. does involve a determination of the “best interests of the child”. She observed: What principles should guide the judge on this fresh review of the situation?

This inquiry takes us to the last clause of s. 17(5) of the Divorce Act : ". . . in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change".

The amendments to the Divorce Act in 1986 (S.C. 1986, c. 4 (now R.S.C., 1985, c. 3 (2nd Supp.)) elevated the best interests of the child from a "paramount" consideration, to the " only " relevant issue. [para. 19] [Emphasis in original.] [ 14 ] In the judge’s analysis respecting the mother, he set out the definition of “best interests of the child” as found in s. 1 of the Family Services Act and addressed all of the criteria by applying the facts of this case to each of the criteria.

Although the judge does not formally undertake the same analysis regarding the father, it is apparent each of the criteria was considered. The judge applied the appropriate legal test, and there was more than enough evidence to support his findings. In T.M.S. and J.C. v.

Department of Social Development (formerly the Minister of Family and Community Services) , 2009 NBCA 50 , 347 N.B.R. (2d) 285 , Richard J.A. says: Although the trial judge's decision contains no convenient analysis of his findings on each of the criteria set out in the definition of "best interests of the child", it cannot be said, in reviewing this decision in the context of the reasons in their entirety and in the context of the evidence, arguments and trial, that each criterion was not carefully considered.

We are of the opinion that the trial judge applied the correct legal test and that he made no error in law in his assessment of the criteria defining the best interests of the children. [para. 15] [ 15 ] Overall, the judge undertook a thorough analysis of the “best interests of the child” and provided a reasoned decision for granting the guardianship order. I agree with the judge’s conclusions when he offered the following: In the context of evidence herein in my view the father cannot and he is not inclined to in the future to be able to provide a secure environment for his son C.

In my view, considering all of the evidence, and in spite of the fact that Mr.

P. seems well intentioned, he seems to really love his son, he feels it is his responsibility to raise him and look after him, in spite of that, for the reasons I have just given, I find that the father if he is to be assigned the custody of his son, would clearly represent in my view a danger to his security and development and it would simply not be in the child’s best interest according to the definition that’s in the Family Services Act , it would not be in the child’s best interest to be in the custody of his father. [paras. 95-96] [ 16 ] I am of the opinion the judge applied the correct legal principles and that he made no error in law.

VI. Disposition [ 17 ] For these reasons, I am not persuaded the judge made any error that would provide a basis for intervention. I would dismiss the appeal without costs.

____________________________ KATHLEEN A. QUIGG, J.A. WE CONCUR: _____________________________ M.E.L. LARLEE, J.A. _____________________________ B. RICHARD BELL, J.A.