THE MINISTER OF SOCIAL DEVELOPMENT Applicant v. F. A.H. and Y.A., 2023 NBKB 115

2023 NBKB 115 COURT FILE: FDSJ 50-2023 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF SAINT JOHN BETWEEN: THE MINISTER OF SOCIAL DEVELOPMENT Applicant and F. A.H. and Y.A. Respondents Before: The Honourable Mister Justice Danys R.X. Delaquis Date of Hearing: June 2, 2023 Date of Decision: June 23, 2023 Appearances: Chantal Landry - for the Applicant Natasha J. MacKay - for the Respondent, F.A.H. William H. Watts - for the Respondent, Y.A. Patricia Gallagher Jette - for the child

Summary: Stay of proceedings in Guardianship Application RULING

RULING DELAQUIS, J.: BACKGROUND [ 1 ] The Respondent, Y.A., brings a Motion for a stay of proceedings of the Guardianship Application brought by the Minister of Social Development (“the Minister”). The Minister is asking for a Guardianship Order with respect to the child M.A., who is now 11 years old (“the child”), pursuant to s. 56(1) of the Family Services Act , S.N.B. 1980, c. F-2.2 (the “ FSA ”). [ 2 ] The child has been in protective care for 24 months and presently resides in a group home.

The relief sought on the third day of this Guardianship trial was an immediate “permanent stay” of proceedings based on oral testimony given by the manager of a group home where the child is staying. In essence, that testimony related to an incident in late November 2022 about a physical altercation between the child and other residents of the group home, in addition to racial taunts directed at the child (“the incident”).

Alternative relief of a “temporary” or “conditional” stay is also sought, with a request to hear further oral evidence from certain social workers involved in the file who had not yet testified, and other possible witnesses who may have relevant testimony. [ 3 ] As a result of the extraordinary remedy sought, the Court directed the Respondent Y.A. to file and serve a Notice of Motion that specifically sets out the relief sought, along with the grounds and legislative references that support his position. The parties filed written submissions, which were followed by oral argument.

EVIDENCE GIVING RISE TO THE MOTION [ 4 ] The Respondent argues that a stay of proceedings is warranted because of the viva voce testimony of Joel Seale on the second day of trial. Mr. Seale is employed by Centre for Youth Care Inc. as the Program Manager. Mr. Seale worked in the same group home where the child resides and filed two affidavits that the Minister relies upon in the Guardianship Application. [ 5 ] Mr. Seale’s evidence during cross-examination giving rise to this Motion is as follows: Q. Basically on those dates, Mr.

Seale, the beginning of those dates where you said, at paragraph 12, page 48 of the Record. When I looked at some of the entries here, there’s one on December 2nd and I’m gonna see if this helps refresh your memory. December – this is December 2nd, Joel says – Joel said he wanted to follow up on two things – you’re talking to Mr. Ryan. (Inaudible). One of those two things was an incident with [M.] last week. So that would have been in November. He worries about what would have happened. THE COURT: Ms. Gallagher Jette. Ms. Gallagher Jette, we’re waiting for translation. MS.

GALLAGHER JETTE: Oh, I thought - excuse me again. THE COURT: He was looking to you for clarification. So, the question related to an entry of December 2nd that referred to an event last week which would have been in November. Q. It related – your worries, you said, were that he could come to harm and have a meltdown and maybe run away. Do you remember what that incident was because I looked back. It’s not in your documents here so can you help out, fill in the blanks there? A. I don’t recall the incident. THE COURT: Just wait.

WITNESS: Oh, sorry. Q. Do you remember saying to Mr. Ryan, I understand why [M.] would have meltdown and run. I understand it so I’m kinda worried about it and you still – that doesn’t help you remember the incident? You went on to say that he handled it well and about potentially pressing charges against the other youth. Is that helping at all? A. Now that – after you mentioned the “potentially pressing charges”, yes that incident does – that does stand out. THE COURT: Do you recall now, Sir? WITNESS: I do – I do, yes. THE COURT: The incident? WITNESS: I do, yes. Q.

So, can you elaborate now that you have the recall, Mr. Seale? A. That particular incident was – [M.] wasn’t the only resident involved and there was an altercation within the house. Q. Why were you worried about the effect on [M.] – meltdown and you wouldn’t have blamed him and running away? A. It was a challenging issue that evening – I should say morning if I recall correctly. Q. Can you be specific, Mr. Seale? You’re under oath and if you know anything about it. A. No, of course. Q.

Would you feel comfortable giving some details as to what this thing was because as I say, it’s very vague in the notes, and you – excuse me, you talked to Mr. Ryan on the phone, said, fill me in, will talk later, but there are no notes so that’s why I’m asking you if you can help out. A. Of course, yep. That particular incident there were two residents who were, at the time, I’ll say bullying [M.]. That particular time there were two particular residents who were bullying [M.]. When I say that I’m – I’m – I’m not sure what you’re reading, but I – I – I was proud of him because he didn’t engage in anything.

They were deliberately picking on [M.] and [M.] did a great job at removing himself from the situation. It was at three in the morning or four in the morning. It was a challenging situation. Q. [M.] has his own room, correct? A. That’s correct. Q. Did they go into his room to bully him?

A. No, ma’am they did not. They – they – [M.] ended up coming out of the room because of – there was – there was commotion happening within the house. [M.] was woken up by the commotion. When [M.] came out of his room that’s when the bullying began. Q. And what was the nature of the – oh sorry. Excuse me. A. Can you repeat the question please? Q. What was the nature of the bullying? A. When [M.] came out of his room, the two boys pushed him to the ground. One of the – one of the residents put him in a headlock. And I believe that there was some racial – racial remarks made to [M.] as well. Q.

Did you hear those remarks? A. No, I did not. Q. On what basis do you say that? A. When I read the incident report from the other residents’ perspective, they would have been more clear within the incident report about what was said. Q. Do you remember (inaudible). A. Pardon? Q. Do you remember what you read? A. I remember the racial word that was used. They had said the “N” word. Q. The “N” word. Thank you. What sanctions were imposed on those (inaudible) A. The police were called that morning.

The police were called that morning, I had reached out to Wayne immediately the following morning and – I had reached out to Wayne the following morning. Q. What does that mean, Mr. Seale? What does it mean, “I reached out”? A. I called – I would have emailed him and called him. Q. Was it because you wanted Mr. Ryan to deal with the situation or you felt it was beyond your jurisdiction, your control, was that? A. Due to being his – due to Wayne – due to Wayne being [M.]’s social worker, he’s – he should know what happened to [M.]. As

well as due to the police department being involved it was in their hands if they would want to press charges or not. Q. Do the other residents have social workers? A. Yes, they do. Q. So, what sanctions did the boys face? They were both older boys, correct? A. That’s correct. They were both older. And with regards to what sanctions, nothing came from – nothing came from it, no. ISSUES [ 6 ] The parties have agreed and asked the Court to rule only on the following threshold issues at this stage: 1. Does the Court have jurisdiction to grant a stay of proceedings? 2.

If the Court does have jurisdiction, is a stay appropriate relief in the context of a Guardianship Application? POSITION OF THE PARTIES [ 7 ] After some initial discussion with counsel, the legal foundation for the relief sought was unclear. It is therefore important to set out the relief sought by the Respondent in his Notice of Motion in full to understand exactly what he is asking the Court to do: 1.

THAT the moving party in the within Motion be granted a permanent stay of proceedings of the within Guardianship Application and that the child M.A. be returned to his father, the respondent Y.A., subject to a Supervisory Order in favor of the Minister of Social Development on terms considered just by the Court, or, in the alternative; 2. THAT the moving party in the within Motion Y.A. be granted a temporary stay of proceedings of the within Guardianship Application until the following conditions have been fulfilled; 3. (

a) That the child M.A. be removed from the Group Home where he presently resides and be placed in a safe and secure living environment free from physical, emotional and psychological abuse; and (

b) That the Minister of Social Development satisfy the Court that M.A. has been so removed and placed; and (

c) That M.A.'s present social worker Wayne Ryan and his Supervisor Heather Gagnon be replaced; or, in the alternative 4. That a full hearing be conducted on the within Motion with viva voce evidence from any witness having relevant and probative evidence with respect to the grounds and relief set out in the within Motion and that cross-examination of those witnesses be conducted. 5. That any relevant and probative evidence contained in the Events Profile records of the Minister of Social Development be admitted into evidence if they are relevant and probative with respect to the issues raised in the within Motion;

6. That the court rule that it can employ its inherent jurisdiction to grant the relief requested. 7. That in the alternative, the court rule that it can employ its parens patriae jurisdiction to grant the relief requested; 8. That in the alternative, the court rule that it can grant the relief requested pursuant to Section 24(1) of the Canadian Charter of Rights and Freedoms . [ 8 ] Various grounds were raised by the Respondent in his Notice of Motion with reference to the legislative provisions he relies upon.

In essence, the grounds allege that because of the incident, the child was subjected to physical, emotional and psychological trauma which aggravated the historical trauma he had already endured prior to immigrating to Canada with his parents and other behavioural “proclivities”. The Respondent further alleges that the Minister failed in her duty to adequately supervise the child, to urgently provide him with a “safe haven” and to remove him from the group home after the social workers became aware of the incident. The Respondent further alleges that the Minister’s conduct breached the child’s

Section 7 Charter right to security of the person. [ 9 ] No case law was submitted by counsel for the Respondent Y.A. where a Trial Division Judge granted a permanent, or even a temporary or conditional stay before the completion of a Guardianship Application. Counsel for the Respondent, Y.A., submits that does not mean that this Court cannot grant the relief sought.

He further argues that the absence of any specific provision in the FSA providing for this relief does not mean that the Court cannot stay the proceeding either. [ 10 ] The Respondent, F.A.H. and the child, as represented by counsel, support the relief sought in the Notice of Motion. The Respondent F.A.H. did submit a Brief with reference to case law especially from the Nova Scotia Court of Appeal on the question of stays in the context of child protection matters.

She argues that the Judicature Act provides this Court with broad jurisdiction to grant a stay, including in child protection matters. [ 11 ] Counsel for the child submitted a 1.5-page Brief that references no case law in support of the child’s position. In fact, paragraph 1 of that Brief reads as follows: “I AGREE WITH THE FACTS AS STATED IN THE RESPONDENTS BRIEF (ON behalf of [Y.A.])” [Caps in the original].

The written and oral submission simply supports the Respondent father’s position without presenting any cogent argument on why this remedy might not be in the child’s best interests. [ 12 ] During oral argument, counsel for the Minister acknowledged that the Court may have “some” jurisdiction under the Judicature Act to grant a stay but maintains that the remedy of a stay is not proper in guardianship cases even if the Court assumes a Charter breach. Crown counsel provided the Court with jurisprudence in support of her position.

ANALYSIS AND DECISION Issue 1 – Jurisdiction [ 13 ] The Respondent relies on section 11(9) , and 26(7) of the Judicature Act , RSNB 1973, c.

J-2 and Sections 7 and 24(1) of the Canadian Charter of Rights and Freedoms . [ 14 ] Sections 11(9) and 26(7) of the Judicature Act read as follows: 11(9) The Family Division has and may exercise jurisdiction as parens patriae. 26(7) No cause or proceeding, at any time pending in the Court, shall be restrained by injunction or by an order on judicial review, but every matter of equity on which an injunction against the prosecution of any such cause or proceeding might have been obtained either unconditionally or on any terms or conditions, if The Judicature Act , 1909 had not been enacted, may be relied on by way of defence

thereto; but nothing herein disables the Court from directing a stay of proceedings in any cause or matter pending before it, if itsees fit; and any person, whether a party or not to any such cause or matter, who would have been entitled, if The Judicature Act,1909 had not been enacted, to apply to any Court to restrain the prosecution thereof, or who may be entitled to enforce, by anymeans, any judgment, decree, rule or order, contrary to which all or any part of the proceedings in the cause or matter have beentaken, is at liberty to apply to the Court by motion in a

summary way, for a stay of proceedings in such cause or matter eithergenerally or so far as may be necessary for the purposes of justice; and the Court shall thereupon make such order as is just. [Emphasis mine] [15] I refer to s. 11(8) of the Judicature Act because the within Application is being heard in Family Division.

Section 11(8)states that Judges sitting Family Division of the Court of King’s Bench have all the powers and duties of the Court of King’s Bench: 11(8) In exercising its jurisdiction in respect of any proceeding the Family Division has, in addition to the powers and duties of a court orjudge that would exercise jurisdiction but for this section, all the powers and duties of the Court of Queen’s Bench and a judge thereof. [16]

Section 7 and 24(1) of the Charter state that: Life, liberty, and security of person 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordancewith the principles of fundamental justice. 24

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competentjurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [17] In R. v LeBlanc, [2019] N.B.J. No. 238, 2019 NBCA 65, the defence invoked

Section 7 and 24(1) of the Charter mid-trial, asserted an abuse of process and sought a stay of proceedings. That case was a criminal jury trial. The trial judge reserved hisdecision on the outcome of the motion until after the jury rendered its verdict. In the end, the Trial Judge refused to grant a stay and hisdecision was upheld.

The Court of Appeal stated at paragraph 36 that the decision to grant a stay is discretionary and further explained atparagraphs 37 and 38 that: [37] Principles regarding a stay of proceedings for abuse of process in the criminal context are discussed in Babos, where Moldaver J.,writing for the majority, notes: A stay of proceedings is the most drastic remedy a criminal court can order (R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, atpara. 53). It permanently halts the prosecution of an accused.

In doing so, the truth-seeking function of the trial is frustrated and thepublic is deprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their dayin court. [38] Nonetheless, this Court has recognized that there are rare occasions – the “clearest of cases” – when a stay of proceedings for anabuse of process will be warranted (R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411, at para. 68).

These cases generally fallinto two categories: (1) where state conduct compromises the fairness of an accused's trial (the "main" category); and (2) where stateconduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category) (O’Connor,at para. 73). […] [paras. 30-31] [18] Rule 62.26 of the Rules of Court refers to stay of proceedings. That Rule is invoked before the Court of Appeal torequest a stay of a lower Court judgment or decision, although Rule 62.26(2) does provide that the request for a stay “may be madebefore the judge appealed from”.

In any event, Rule 62.26 provides some backdrop to cases where the Court of Appeal is asked todetermine if a stay of the judgment or decision below is warranted pending the disposition of the appeal: see J.L. v. E.B., [2021] N.B.J.No. 132 at paras 10-19 and R.A.M. v. J.C.M., [2021] N.B.J. No. 45 at paragraph 7.

[19] In R.A.M. v. J.C.M., supra LeBlond, J.A. granted a stay in a “custody and access” (as it was then referred to) case onterms, and explained the basis for his decision at paragraphs 9 and 10: 9. The motion for the stay of execution is granted up to the date the parties confirm withdrawal of the appeal or the date of thehearing of the appeal, at which time the panel will deal with its continuation or termination. The stay is granted subject to the followingterms: (…) 10.

I make this decision strictly out of my concern for the best interests of the children and the parties are urged to keep that in mindpending the hearing of the appeal. This decision is made in accordance with the jurisdiction granted to me under s. 11 of the JudicatureAct, R.S.N.B. 1973, c. J-2, Rule 62.26(3)(c), and the common law. [Emphasis added] [20] The case before me is, of course, not an appeal from a decision or a judgment. However, when I consider ss. 26(7) and 11of the Judicature Act, I am of the view that this Court does have general jurisdiction to grant a stay of proceedings.

It is a drastic remedyand, as will be discussed below, context matters. Issue 2 – The Stay as a Remedy in Guardianship Proceedings [21] Here, the Court is asked to exercise its discretion to grant a permanent stay in the context of a Guardianship Application.The context of guardianship is important because the governing legislation and case law from the Supreme Court of Canada and ourCourt of Appeal mandates that the sole consideration in making a child protection Order, including a Guardianship Order, is the child’sbest interests: see for example the

Preamble and s.53(2) of the FSA and Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27.The request for a stay must therefore be considered in that context. [22] Jurisprudence from our Court of Appeal confirms that the test for a stay in child protection matters involves considerationsthat are specific to the child’s best interests. In an appeal from a child custody matter, Richard J.A. (as he then was) noted several yearsago in C.D. v A.B., (NB CA), [2004] N.B.J. No. 443 (NB CA) that a stay of proceedings in child protection mattersraises context-specific considerations.

For example, when considering the irreparable harm aspect of the test, the focus is on harm to thechild (not the parties). The overriding principle of the best interests of the child applies in a stay motion. [23] As a result, the test for a stay in the child protection context must therefore “be somewhat modified” as Richard, J.A. (ashe then was) noted in C.D. v A.B., at paragraph 27, while referencing other appellate decisions, including D.M.F. v. Minister ofCommunity Services, 2004 NSCA 113, at para. 13; Minister of Community Services v. B.F., 2003 NSCA 125, at para. 19;Children's Aid Society of Halifax v.

J. et al, 2000 NSCA 144, at paras. 31 and 32; Lefebvre v. Lefebvre, (ONCA), [2002] O.J. No. 4885 (Ont. C.A.) and C.B. v. P.C., 2003 ABCA 321 , [2003] A.J. No. 1343 (Alta. C.A.). [24] In C.D. v A.B., supra, Richard, J.A. (as he then was), explained the nuances that apply when considering a stay ofproceeding in an appeal from a child protections case: 26. Courts generally determine whether it is just and equitable to grant a stay pending appeal "by applying the well-known three-

prong test formulated in Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board(Man.), (SCC), [1987] 1 S.C.R. 110 ... and RJR-MacDonald Inc. and Imperial Tobacco Inc. v. Canada (AttorneyGeneral), (SCC), [1994] 1 S.C.R. 311:

(1) Does the appeal pose a serious challenge to the decision in the court below?

(2) Will the applicant suffer irreparable harm without a stay?

(3) Does the balance of convenience favour the order sought?": seeMoncton (City) v. Steldon Enterprises Ltd. et al., [2000] N.B.R. (2d) (Supp.) No. 3 (C.A.) per Drapeau J.A. (now Chief Justice of NewBrunswick) who then observed that "[t]he first branch of the test is referred to in Rule 62.26, while the second and third branches havebeen formulated by the courts to provide a principled framework for the exercise of discretion contemplated by the rule." 27. In child custody matters, the overriding principle is always the best interests of the child: Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27.

In my view, this principle applies as well to a motion to stay a custody order. As a result, where the stay of acustody order is sought, the standard tripartite test for the determination of the motion must be somewhat modified. 28. In Lefebvre v. Lefebvre, (ON CA), [2002] O.J. No. 4885 (C.A.) (QL) the second component of the test wasre-stated to take into account the nature of the order sought to be stayed. It was determined that the inquiry should be not whether theapplicant will suffer irreparable harm but whether the child or children, as the case may be, will suffer such harm. In C.B. v.

P.C., 2003ABCA 321 , [2003] A.J. No. 1343 (C.A.) (QL), Russell J.A. modified the second and third components of the test to reflect theparamount importance of the best interests of the child. He stated at para. 4 that "those interests mandate a consideration of whether thechild will suffer irreparable harm from the denial of a stay, and it is those interests that will ultimately determine the balance ofconvenience." 29.

In Nova Scotia, to determine whether a child custody order should be stayed, the inquiry is "whether there are circumstances of aspecial and persuasive nature to grant a stay." The three-part test is considered generally relevant but is not "slavishly applied": D.D. v.Nova Scotia (Minister of Community Services), 2003 NSCA 146 , [2003] N.S.J. No. 477 at para. 9 (C.A.) (QL) and Minister ofCommunity Services v. B.F., 2003 NSCA 125 , [2003] N.S.J. No. 421 (C.A.) (QL).

In B.F., Cromwell J.A. discussed the legalprinciples in the following words at paras. 13 and 19: 13 A third clarification is necessary because, unlike RJR-MacDonald, this case involves the care and custody of children. It follows thatthe decision to grant or deny a stay must weigh and give effect to their best interests. In my view, this requirement leads to somemodification of the irreparable harm aspect of the test. The primary focus in a case like this should be on the risk of irreparable harm tothe children while, of course, taking due account of the rights of the parties.

In addition, given the need for stability and finality in childcustody matters, there will generally need to be circumstances of a "special and persuasive nature", usually connected to the risk of harmto the children, in order to persuade the Court to grant a stay: see, for example, Children's Aid Society of Halifax v. B.M.J. (2000), 2000NSCA 144 , 189 N.S.R. (2d) 192; [2000] N.S.J. No. 405 (Q.L.) (C.A.

Chambers) at paras. 29-30 and the cases cited there. ... 19 The fundamental issue in an application of this sort is to balance the risks of harm -- particularly harm to the children -- in light of thepossible, but as yet unknown, outcome of the application for leave to appeal. To paraphrase R.J. Sharpe's description of the centralproblem posed by interlocutory injunctions (of which the stay pending appeal may be viewed as an example), the issue may be bestunderstood in terms of balancing the relative risks of granting or withholding the remedy.

The applicants must show a risk of harmproduced by the combination of the continuing in force of the order under appeal and the delay until the result of the proposed appeal isknown. This risk is that if the stay is withheld, their rights and the interests of the children will be so impaired by the time of finaljudgment that it will be too late to afford complete relief. On the other hand, this risk must be balanced with the risk of harm to thechildren if the stay is granted.

The risk to be considered is that of harm to the children that could result from staying an order that may beaffirmed on further review to be both lawful and in their best interests: R.J. Sharpe, Injunctions and Specific Performance (Canada LawBook Inc.: Aurora, updated to November, 2003) at para. 2.90-2.100. [Emphasis in original] [25] Richard, J.A. (as he then was), then concluded that: 30. I generally agree with the statements of Cromwell J.A. set out above and in particular with the focus on the risk of harm asopposed to proof of actual harm.

I would add that a finding that a child is at risk of harm because of a custody order will usually beequivalent to a finding of the child being at risk of irreparable harm in the sense of the term as set out by Sopinka and Cory JJ. in RJR-

MacDonald at p. 341: "Irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetaryterms or which cannot be cured, usually because one party cannot collect damages from the other. 31. Applying this modified tripartite test to the facts of this case, I concluded that the stay should be denied. C.D. failed to convinceme that his appeal raises a serious enough issue.

Moreover, even if he had been able to satisfy the first part of the test, I was notconvinced that the children would suffer any harm, much less any irreparable harm. [26] See also Prince Edward Island (Director of Child Protection) v. E.W., [2020] P.E.I.J. No. 47; 2020 PECA 15. [27] The Respondent, Y.A., alleges that the child’s s. 7 Charter rights have been breached based on Mr. Seale’s evidence.

Irefer to the following statement by the Supreme Court of Canada in New Brunswick (Minister of Health and Community Services) v.G. (J.), (SCC) at paragraph 101, which provides a complete answer to the Respondent’s argument for a stay based on s.24(1) of the Charter: 101. There are only two possible remedies a judge can order under s. 24(1) to avoid a prospective s. 7 breach in circumstances wherethe absence of counsel for one of the parties would result in an unfair hearing: an order that the government provide the unrepresentedparty with state-funded counsel, or a stay of proceedings.

A stay of proceedings is clearly inappropriate in this case, as it wouldresult in the return of the children to the appellant’s custody. Children should not be returned to their parent’s care when thereis reason to suspect that they are in need of protection. Indeed, this would run contrary to the purposes of

Part IV of the FamilyServices Act. The government must, therefore, provide the appellant with state-funded counsel. [Emphasis mine] [28] The Supreme Court of Canada’s statement in New Brunswick (Minister of Health and Community Services) v. G. (J.)is very clear despite counsel for the Respondent urging me not to follow it. New Brunswick (Minister of Health and CommunityServices) v. G. (J.) was a case emanating from New Brunswick where the Supreme Court found that a stay was contrary to the purposeof

Part IV of the FSA that governs child protection matters, including Guardianship Applications. [29] Counsel for the Respondent urges the Court to distinguish New Brunswick (Minister of Health and CommunityServices) v. G. (J.) because in that case, the Charter breach was related to an allegation of an unfair hearing unless state funded counselwas appointed, which is different that what is alleged here. Regardless, the effect of the stay is the same: to potentially return the child tohis parents despite a concern that he may still need protection. In my view, that is a situation that runs afoul of

Part IV of the FSA. [30] I do not have to determine at this stage if there was a breach of the child’s

section 7 Charter rights. The argument at thisstage is akin to the situation in New Brunswick (Minister of Health and Community Services) v. G. (J.) supra where the SupremeCourt of Canada considered whether a stay pursuant to s. 24(1) of the Charter was an appropriate remedy to avoid a prospective s. 7Charter breach. I am satisfied that a stay is not an available remedy under s. 24(1) of the Charter in the event of a prospective s. 7Charter breach in this case as well. [31] Indeed, there are other decisions that have applied New Brunswick (Minister of Health and Community Services) v.

G.(J.) in refusing to grant a stay in a Guardianship context. I will review in some detail a case that Counsel for the Minister relied uponconsiderably because a very similar argument as here was made, and rejected. [32] In Jewish Family and Child Service of Toronto v JZ, [2014] OJ No 1123, 2014 ONCJ 119, the Court was faced with amotion to stay proceedings in the context of a guardianship application based on alleged breaches of Charter rights. The Court providedthe following background to the arguments raised by the Respondents in that case:

108. It is the father's position that his

section 7 Charter rights have been infringed and the remedies he seeks are available to himpursuant to section 24(1) of the Charter. 109. In order to satisfy the court that there has been a breach of his

section 7 Charter rights, the father must establish on a balance ofprobabilities, first, that the delay complained of impaired his security of the person, and second, that the impairment was not inaccordance with the principles of fundamental justice. 110. It is important to understand that the Charter right to "security of the person" is not an absolute right. Instead, that right is subjectto the "principles of fundamental justice". 111. On the wording of

section 7 of the Charter, both parts of this two-part test must be met. 112. I turn first to the leading

section 7 Charter case in child protection proceedings, namely, New Brunswick (Minister of Health& Community Services) v. G. (J.), (SCC), [1999] 3 SCR 46, a decision of the Supreme Court of Canada. In that casethe Court held that held that Charter rights are engaged in child protection proceedings. In particular, the removal of a child from aparent engages that parent's security of the person. 113.

At paragraph 2 of G. (J.) the Court stated: When government action triggers a hearing in which the interests protected by s. 7 of the [Charter] are engaged, it is under an obligationto do whatever is required to ensure that the hearing be fair. 114. At paragraph 60, the Court continued [my emphasis]: For a restriction of security of the person to be made out, the, the impugned state action must have a serious and profound effect on aperson's psychological integrity.

The effects of the state interference must be assessed objectively, with a view to their impact on thepsychological integrity of a person of reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness, butmust be greater than ordinary stress or anxiety. 179. On this analysis, being a respondent in a child protection proceeding is not an immutable characteristic which is protected bysection 15 of the Charter. Being a respondent in a child protection proceeding is about "behaviour".

This child protection proceeding wascommenced by the society because the society alleged that the mother and the father behaved in a certain way that either harmed thechildren, or placed the children at risk of harm. Whether that behaviour is eventually made out so that the children are found to be inneed of protection, is something which will have to await the completion of the trial.

[33] The Court in Jewish Family and Child Service of Toronto v JZ, supra then addressed the request for a stay ofproceedings: 208. The father then seeks, in the alternative, a dismissal of the Application, or a stay of the proceeding. The net effect of such aremedy would be the automatic return of the children to the father's care, jointly with the mother. Returning the children to the father'scare before a determination on the merits whether the children are at risk of harm in the care of their father would fly in the face of theparamount purpose of the CFSA, as provided for in

section 1, namely, "to promote the best interests, protection and well being ofchildren". It would also place the father's Charter rights ahead of the children's rights to be protected from harm. 209. Furthermore, there has already been a judicial determination -- twice -- by Justice Sherr that it is in the best interests of thechildren that father's access be very restricted, and that his access be supervised by the society. This is the order which must remain inplace, in the best interests of the children, until the trial is concluded on its merits, failing which the children may be exposed to seriousharm. 210.

As part of this discussion, I return to the decision of the Supreme Court of Canada in G. (J.), supra, wherein the Court stated, atparagraph 101 [my emphasis]: There are only two possible remedies a judge can order under s. 24(1) to avoid a prospective [Charter] breach ... [an order forgovernment funded counsel, where that was the issue in G. (J.) or] a stay of proceedings. A stay of proceedings is clearly inappropriate inthis case, as it would result in the return of the children to the appellant's custody.

Children should not be returned to their parent's carewhen there is reason to suspect that they are in need of protection. Indeed, this would run contrary to the purposes of [the relevant childprotection legislation]. See also the decision of the Ontario Court of Appeal in R. v. Imona-Russell, 2011 ONCA 303 , 2011 CarswellOnt 2608, atparagraph 34. 211. In Children's Aid Society of Hamilton v. E.O. (ON SC), 2009 CarswellOnt 8125 (S.C.J.), Gordon J. wasfaced with a 33-month delay between the date of apprehension and the trial.

During this period of time the child remained in foster care.Justice Gordon made a Crown wardship order, although noting at paragraph 244 [my emphasis]: ... In a child protection case, the ultimate test is the best interests of the child. Returning him to his parents, as a result of mistakes madeby the society, is not appropriate. As Fleury J. said in Children's Aid Society of Hamilton-Wentworth v. E.D., [1999] O.J. No. 5779 (Ont.Gen. Div.), at para 8: To penalize the society by returning a child to a situation of danger would be the most ridiculous result that I can imagine.

It would bringthe entire administration of justice into disrepute. 212. Simply put, this particular sought-after remedy by the father, is not a possible outcome in the event of a breach of Charterrights. [Emphasis in original] [34] I concur with the reasoning in Jewish Family and Child Service of Toronto v JZ, supra. [35] Significantly, that case was cited with approval by our Court of Appeal in J.S. v New Brunswick (Minister of SocialDevelopment), 2018 NBCA 26 , [2018] N.B.J. No. 371 supra at paragraph 29. In J.S. v New Brunswick (Minister of SocialDevelopment), the Court of Appeal noted that: 11.

Guardianship proceedings are described as "the capital punishment" in family law. This is so due to the fact a guardianship order

has the effect of severing the legal rights, duties and obligations between a parent and a child. These proceedings are lengthy, and oftencomplicated by the fact the hearings are preceded by interventions on the part of the Minister, in an effort to keep the family unittogether as required by the Act. A guardianship order is sought when all other measures have failed. 12. The

Preamble to the Act recognizes that children and their families are entitled to "the least invasion of privacy and interference withfreedom that is compatible with their own interests and those of their families and of society", and the "best interests and safety of thechild must always prevail when there is a conflict between risk to the child and the preservation of the family unit". 13. The

Preamble also recognizes the need to avoid procedural delays in the decision-making process concerning the permanent plansfor a child. Further, there is an acknowledgement that social services are "essential to prevent or alleviate the social and related economicproblems of individuals and families". There were numerous interventions by social workers and third-party service providers retained bythe Minister to work with the parents in keeping with the above principle. 29.

The application judge correctly concluded the allegations concerning a breach of Charter rights lacked traction and shecould not stay the proceedings in the best interests of the child. To support her conclusion, she relied on Jewish Family and ChildService of Toronto v. J.Z., 2014 ONCJ 119, [2014] O.J.

No. 1123, where Spence J. referred to Lamer J. in the G.(J.) decision: There are only two possible remedies a judge can order under s. 24(1) to avoid a prospective s. 7 breach in circumstances where theabsence of counsel for one of the parties would result in an unfair hearing: an order that the government provide the unrepresented partywith state-funded counsel, or a stay of proceedings. A stay of proceedings is clearly inappropriate in this case, as it would result in thereturn of the children to the appellant's custody.

Children should not be returned to their parent's care when there is reason to suspect thatthey are in need of protection. Indeed, this would run contrary to the purposes of

Part 1V of the Family Services Act [...]. [para. 341] [Underlining in original.] [36] I next refer to the British Columbia (Director of Child, Family and Community Service) v KO, [2018] B.C.J. No.651, where the Court also followed the Jewish Family and Child Service of Toronto v JZ, supra decision. In that case, Child, Familyand Community Services (CFCS) became involved because of allegations of alcohol use and domestic violence that occurred in July2017. The mother decided to not sign the Safety Plan proposed by the CFCS, which led to the child being placed in the care of thepaternal grandparents.

The mother argued that incident that occurred in July 2017 was tantamount to removal of the child, an abuse ofthe legislation and a breach of her Charter rights. [37] The Court dismissed the mother’s application for a stay of proceedings and determined that the child was to remain in theinterim custody of the Director of CFCS. At paragraph 95, the Court found there were no s. 7, 11 and 15 Charter breaches in that casedespite the argument that there were reasonable grounds to believe the child needed protection.

Lastly, the Court’s findings on the issueof jurisdiction to stay proceedings in British Columbia (Director of Child, Family and Community Service) v KO are set out atparagraphs 96 to 99: 96. The final issue is whether this court has jurisdiction to entertain a judicial stay of proceedings due to breaches of the Charter. Evenif there had been a breach or breaches proved on the evidence, it is my finding that this court does not have the jurisdiction to grant ajudicial stay in any event. 97.

The case law specifically stresses that the Provincial Court does not have jurisdiction to deal with a stay as it would automaticallyreturn the child to the parent before a determination on the merits and may not be in the child's best interests (Jewish Family and ChildService of Toronto v. J.Z.; N.B. (Min of Health) v. G.(J.) (SCC), [1999] 3 S.C.R. 46).

98. The court does not have any prerogative power to grant declaratory judgments (Joyce v. Director of Child, Family and CommunityService) nor should the court express an opinion on a question of law which is not necessary to decide the issues before it (Phillips v.Nova Scotia (Westray Miner Inquiry; Joyce v. Director of Child, Family and Community Service). 99. Accordingly, the application by K.O. for a constitutional remedy is denied. [38] Counsel for the Respondent F.A.H. relies on Children’s Aid Society of Bruce County v. B.(I.), (ONSC).

In that case, the mother appealed an order making her three-year-old child a Ward of the Crown. As a result of fresh evidencebecoming available, the Children’s Aid Society did not oppose the appeal and was in fact agreeable to the child being graduallyintegrated back into the parents care under conditions including a supervisory order, but not immediately. The Children’s Aid Societyundertook to provide the Court with a status review application to the lower court in seven days and to retain an expert to assess re-integration.

On that basis, the mother was prepared to withdraw her appeal. [39] However, the Judge hearing the Appeal had concerns about the mother possibly abandoning her right of appeal in theevent the Children Aid Society did not satisfy its promises. The Court therefore granted a conditional stay of the appeal pendingcompletion of the terms on its own initiative under

section 106 of Courts of Justice Act and its parens patriae power. Only when theterms were fulfilled would the mother’s appeal be permanently and irrevocably stayed. In the event a term was not honoured, the appealwould be reinstated. In reaching this decision, the Court stated as follows: [4]

Section 106 of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended, permits this court, on its own initiative, to stay anyproceeding in this court on terms that are considered just. Further, this court retains its parens patriae power, as confirmed by theSupreme Court of Canada in E. v. Eve (by Guardian ad litem), [1986] 2 S.C.R. 388, 71 N.R. 1, 61 Nfld. & P.E.I.R. 273, 185 A.P.R. 273,31 D.L.R. (4th) 1, 13 C.P.C. (2d) 6, , [1986] S.C.J.

No. 60, a jurisdiction of a very broad nature that may appropriately beinvoked in cases such as this. [40] It must be noted that the circumstances in Children’s Aid Society of Bruce County v. B.(I.), (ONSC) are quite unique and, again, involve a stay by an appeal judge after a full hearing on the merits. [41] Furthermore, in MSD v. J.D. and R.D. (FDSJ-49-2023), Madam Justice Daigle rendered an unreported Oral Decision onMay 7, 2023, during a Guardianship trial in response to counsel’s request for a stay. Counsel argued that issues with disclosure andfairness that transpired in the MSD. v.

J.D. and R.D. case warranted a stay of proceedings. I have listened to Justice Daigle’s oraljudgement. She referred to case law, including the New Brunswick (Minister of Health and Community Services) v. G.(J.), supra,and dismissed the motion for a stay of proceedings. [42] It is important to consider the applicable legislative framework because it sets out the powers and responsibilities of theCourt in child protection proceedings. Under

PART IV of the FSA, s.53(1) states that: Powers and responsibilities of court 53(1) Notwithstanding any existing agreement or order, where a matter is before the court pursuant to an application made under thisPart the court may (

a) make an order under

section 54, 55, 56, 56.1, 57 or 58;

(

b) by order vary, terminate, or extend any such order as authorized by

section 60; (

c) dismiss the application where the court is satisfied that there is insufficient cause to make an order; or (

d) subject to subsection (3), adjourn the hearing from time to time. 53(2) When disposing of an application under this Part the court shall at all times place above all other considerations the best interests of the child. [ 43 ] Nothing in s. 53(1) or (2) of the FSA assists the Respondent with the relief he seeks at this stage of the proceeding. In reference to s. 53(1)(a), this Application brings into play

section 56 of the FSA , which reads as follows: Guardianship order 56(1)The court may make a guardianship order transferring from a parent to the Minister on a permanent basis the guardianship of a child, including the custody, care and control of, and all parental rights and responsibilities with respect to, the child. 56(2) Where a child is in care under a guardianship order the Minister shall meet those obligations set out in subsection 45(3) with respect to a child in care under a guardianship agreement. 56(3) Where a child is in care under a guardianship order the Minister may return the child to the former parent periodically, as the Minister considers appropriate, but such action shall not be construed as a release or waiver by the Minister of any rights and obligations under the order with respect to the custody, care and control of the child. 56(4) A guardianship order remains in effect until the child (

a) is adopted, (

b) marries, or (

c) reaches the age of majority, or until an order is made under subsection 60(6). [ 44 ] Nothing in s. 56(1) of the FSA aids the Respondent Y.A. in terms of the relief sought either. [ 45 ] The law is clear that the Minister has the burden of establishing all the alleged facts to obtain a Guardianship Order with respect to the child. The Minister’s Application refers to the background that led to the within Guardianship Application: [M.A.] first came into care on June 26th, 2019 after a domestic dispute between his parents and returned home January 22nd, 2020.

He came into care again on April 4th 2020 after lighting his bed on fire, and he returned home on May 10th, 2020. He came into care again on July 16th, 2020 as he was poking other children with used needles, stole from neighbors and nearby businesses, and damaged property. He returned home on January 15th 2021.

Most recently, he came into care on July 26th, 2022 after he was hospitalized after getting into a fight, was reported missing on July 18th 2022, was out at all hours of the night with individuals much older than him and consuming drugs and tobacco with them, and admitted to setting fires at the direction of these individuals. A six-month custody agreement was signed on August 3rd 2022 and [M.A.] was has remained in care since.

The Minister has received numerous reports of [M.A.]'s out of control behavior that places himself and others at risk. In addition to the concerns already mentioned, he was found by a social worker with a crack pipe in the fall of 2021. He will follow strangers he just met and, on one such occasion in the spring of 2021, he was sexually assaulted. In February 2022, M was sexually inappropriate towards his sisters. Lack of supervision has also been a concern with this family since they became involved with the department in June of 2016. (…) When [M.A.] is in care, his behavior has improved.

For example, while [M.A.] lived with his parents, he only attended school for 30 minutes a day and would often escalate during this time and run away from school period since being in care recently, [M.A.] has progressed to the point he is now attending school full days, something he has done not done in over two years. Group home staff reported that [M.A.]'s behaviors escalate before visits and that he would remain escalated for a day after visits. When his visits were put on hold, he expressed feeling relieved.

Following a visit in January 2023, [M.A.] went to a local convenience store near the group home and attempted to rob it with a knife. [M.A.] needs to remain in a structured environment where he receives attention and care consistently, is kept busy, and is offered supports so that his behaviors can be managed and offer him the best potential outcomes.

The parents, while willing, are not able to manage and parent their son. [ 46 ] It is an uncontested fact that the child has been in protective care for 24 months cumulatively: - June 26, 2019 to January 22, 2020 (returned to father’s care) = 7 months - April 4, 2020 to May 10, 2020 (returned to father’s care) = 1 month - July 16, 2020 to January 15, 2021 (returned to father’s care) = 6 months - July 26, 2022 to present (date of hearing – May 29, 2023) = 10 months [ 47 ] Here I can grant an Order for Guardianship in accordance with s. 56(1) of the FSA or dismiss the Application.

If I dismiss the Application, the child is returned to the care of his parents. I will address the Respondent’s request for a Supervisory Order attaching to the stay below. [ 48 ] In this case, the Respondent asks the Court to grant the relief sought based on part of the evidence of one witness without consideration of all the other evidence that led to the child being taken into protective care and which forms the basis for the Guardianship Application. Some of that evidence, including evidence from the Respondents, has not yet been heard.

This Motion essentially comes before the Court, mid-stream during the Trial. To be clear, the evidence from Mr. Seale raises concerns; however, that evidence does not exist in a vacuum. [ 49 ] There is also evidence in the Trial Record to counterbalance the notion that returning the child to his parents may be better for his overall safety and well-being, or that the child may or may not want to return to his parents despite what transpired during the incident. [ 50 ] For example, Mr.

Seale swore to the following facts that he observed approximately five weeks after the incident in late November 2022, at paragraph 16 of his Affidavit: 16. On January 4th, 2023, two social workers arrived to speak with [M]. [M]. and I had a conversation about his visits being cancelled, M. then pumped his fist and said “Yes!” and displayed what seemed to be a sense of relief. I passed this information along to social work supervisor Heather Gagnon.

[ 51 ] Mr. Seale then states at paragraph 18 of his Affidavit: 18. [M] began school in the new year on January 10th, 2023. The school has identified that they've noticed a drastic change in [M]'s behavior for the better. [M]’s behaviors within the house have also improved drastically. [M] has been attending the YMCA on a regular basis. He's been incredibly helpful around the house and is often the first one to offer a helping hand. [M] is aware of his repayment to the school and makes an effort every two weeks to personally deliver the $5 to Mr.

Matheson. [ 52 ] In his further Affidavit sworn to on May 16, 2023, Mr. Seale states at paragraphs 5, 6 and 10: 5. [M]’s visits are Monday-Tuesday-every other Thursday 3:00 PM - 7:00 PM and Saturdays 10 AM - 2:00 PM. Oftentimes the visits do not last for the full duration. [M] will often cancel his visits last minute; I've witnessed him do so. When this happens, I've encouraged him to rethink his decision so he can see his family. 6. [M] has been doing well at [the group home]. He continues to strengthen his relationships with the staff, especially one on the evening staff [R.L.].

They often go out for bike rides and go to the park and play basketball. [M] sleeps well, eats well and has good hygiene. He keeps his room very well kept as well. [M] continues to be a great help around the house. (…) 10. [M] is currently a part of the […] football program. There are two staff members that play on the team, […] and [R.L.]. [M] attends football practice with [R.L.] on Tuesday and Thursday evenings. He attended his first game on April 29th, 2023 and he has been on the sidelines with the team. He will be taking

part in all of the local games. This has been a very positive experience and it's something he looks forward to weekly. The president of the program gave him his own gear, helmet and cleats as well. [M] as identified that this upcoming spring he wants to play flag football for his school and play for funding minor football in the spring/fall. [ 53 ] These are but a few examples of evidence from Mr. Seale in addition to the evidence he gave with respect to the incident. The Court must consider that evidence as well. Furthermore, the Minister has already called one expert, Dr.

Sarah Gander (pediatrician), and intends to call another, Dr. Tutschka (Family Physician) later, in addition to the lead social worker, various family support workers and other witnesses. The evidence surrounding the incident and the sequelae for M.A. will receive the weight it deserves based on my appreciation of the totality of the evidence. [ 54 ] In the within matter, the Respondent Y.A. is asking the Court to return the child to the parents before undertaking a fulsome analysis of the child’s best interests based on all the evidence contrary to s. 53(2) and indeed, to the entire purpose of

Part IV of the FSA . The relief sought is akin to dismissal of the Application because if granted, the result would be to permanently prevent the Minister from seeking guardianship of the child. That is the nature and effect of a stay. [ 55 ] Counsel for the child’s argument that the Minister may simply “re-intervene” to protect the child if another “intake” is received after the child is returned to the parents in any event is without merit. Re-doing this judicial exercise based on a new intake defeats the purpose of seeking a permanent stay.

In fact, the mere possibility that the Minister would subsequently “re-intervene” upon every new intake and return to Court is yet another reason why a stay of proceedings is an inappropriate remedy in the context of a Guardianship Application. This is especially true in this case, where the 11-year-old child has already been in protective care for 24 months.

In my view, such an approach would be inconsistent with the best interests of the child. [ 56 ] In essence, the remedy of granting a mid-trial stay of proceedings is not appropriate in the context of this Guardianship Application because it would return the child to his parents without first determining if it is in his best interests to do so. I will not pre- determine the child’s best interests. To grant the remedy of a stay here equates to bypassing the relevant provisions of the FSA referred to above, which I should not, and will not, do.

The proper remedy is to consider the incident involving the child and its sequelae in the context of a full best interests of the child analysis. [ 57 ] Part of the test to determine the child’s best interests includes weighing whether the Minister’s plan for the child to remain in the group home is more aligned with his overall well-being and safety, compared to the parents’ plan for the child. I will hear all the evidence, carefully weigh it, and then determine if it is in the best interests of the child to issue a Guardianship Order pursuant to s. 56(1) of the FSA .

[ 58 ] The Respondent says that it would be appropriate to stay the proceedings and to also issue a Supervisory Order after the child is returned to the parents. In essence, the Respondent here asks for a concurrent order (Stay – Supervisory Order) that has the effect of dismissing the Guardianship Application while keeping the Minister involved in a supervisory capacity.

The argument is I presume, because it was not addressed in the Respondent’s brief or during oral argument specifically, that this approach would ensure that the child remains protected from further harm. [ 59 ] I do not agree that the concurrent relief sought is available here for the following reasons. First, to obtain a Supervisory Order, the Respondent must first obtain a stay, which I have determined is not appropriate. Second, a Supervisory Order is not meant to be permanent or until the child reaches the age of majority in approximately 8 years, in this case.

Third, the Minister has already been supervising visits for quite some time and despite this, a Guardianship Application was still filed because of ongoing concerns for the child. Lastly, I am not convinced that there is any legal foundation to grant a concurrent Stay and Supervisory Order in this case. Alternative Relief Sought [ 60 ] In the alternative, the Respondent asks the Court to hear further evidence with respect the incident from social workers and other potential witnesses. The Respondent is not requesting an adjournment, nor a voir dire .

Granting a “temporary” stay and hearing more evidence on this incident will not change the result. The child would presumably still return to the parents if this temporary relief is granted. That is also inappropriate relief for the same reasons as discussed above. The evidence that would be presented during the “temporary” stay will be evidence that will be heard when the guardianship trial resumes, and will be weighed, analyzed, and scrutinized alongside all the other evidence pertaining to the child’s best interests. If Mr.

Seale must take the stand again to provide further evidence as part of that process, so be it. [ 61 ] Lastly, the Respondent asks in

section 3 of his Notice of Motion that the child be “removed from the group home where he presently resides and be placed in a safe and secure living environment free from physical, emotional and psychological abuse” and, that the current social worker and his supervisor be replaced. [ 62 ] I will not grant this relief because those powers are provided in the FSA to the Minister, not the Court. In other words, I do not have power to substitute my views with respect to suitability of a particular group home or to appoint, change, or remove social workers from particular files. Section 3(1) (

a) of the FSA states specifically that the Minister “is responsible for the administration of the Act”, while section 3(1) (

e) further states that the Minister: (

e) may accept responsibility on behalf of the Crown in right of the Province, including making recompense, for any damage, loss or injury caused by a child in care. [ 63 ]

Section 45 of the FSA speaks to the issue of placement of children: Responsibilities of Minister for child in care 45(1) Where a child is in the care of the Minister under a custody agreement the Minister shall, to the extent the parent cannot, (

a) provide care for the child that will meet his physical, emotional, religious, educational, social, cultural and recreational needs; and (

b) provide for the support of the child. 45(2) In complying with subsection (1), the Minister may place the child in any facility he considers to be appropriate for the child and may prescribe any plan he considers suitable for the child, but before so doing he shall consider any wishes of the child and the parent that have been expressed with respect to any placement or planning he proposes. 45(3) Where the child is in care under a guardianship agreement the Minister shall (

a) provide care for the child that will meet his physical, emotional, religious, educational, social, cultural and recreational needs; (

b) provide for the support of the child; and

(

c) consider any wishes that the child expresses with regard to any placement or planning the Minister proposes; and the Minister has full parental rights and shall exercise full parental responsibilities with respect to the child. [64] The Court of Appeal in New Brunswick (Minister of Family & Community Services) v. Arif (Litigation Guardianof), [2002] NBJ No 419, 2002 NBCA 100, canvassed the issue of a request for removal from a placement in the context of an adultprotection application, but also under the FSA.

The trial judge declined to determine appropriateness of the care facility because shelacked the jurisdiction to grant such relief under the FSA. The trial judge further found that her parens patriae jurisdiction did not applybecause there was no gap in the legislation. Furthermore, the trial judge found that a violation of Mr.

Arif’s rights under sections 7 and15 of the Charter did not arise out of the making of the Supervisory Order just because a hearing into the suitability of his placement wasnot conducted as part of the determination of the Minister’s application. [65] The Court of Appeal stated the issue to be determined as follows 36. At the risk of belabouring the point, I repeat that, at bottom, there is only one interpretative question before this Court. It is whetherJustice Athey had the power under the concluding part of s. 39(1) to determine the suitability of the particular facility where the Ministerintended to place Mr.

W.A. and, if necessary, to order his removal from Centracare and placement in some other facility. (…) For thereasons that follow, I am of the view that Justice Athey was right in holding that she did not have the power argued for by the appellant. [66] The rationale for the Court of Appeal’s dismissal of the appeal in New Brunswick (Minister of Family & CommunityServices) v. Arif (Litigation Guardian of), is at paragraphs 45 to 47: 45 In the case at bar, it is common ground that it was in Mr. Arif's best interests that an order issue placing him under the supervision ofthe Minister. Since the health of Mr.

Arif's parents did not allow them to take him back home, s. 39(1)(

b) applied. In exercising herjurisdiction under that provision, Justice Athey did not have the power to determine the suitability of the particular facility where theMinister intended to place Mr. Arif. Nor did she have the power to order Mr. Arif removed from Centracare and placed in some otherfacility. Mr. Arif's submission that the concluding part of s. 39(1) yields a judicial power greater than the one found in s. 39(1)(

b) mustfail. I reject, as well, Mr. Arif's submissions based on the Family Division's parens patriae jurisdiction and the Charter. 46 The parens patriae jurisdiction is designed to give the court the power to intervene for the protection of those who cannot care forthemselves. It is engaged only when there is a material gap in the legislation that the court is required to apply. See Eve, Re, (SCC), [1986] 2 S.C.R. 388 (S.C.C.), at paras. 74-76, per La Forest J., for the Court, and Walker (Litigation Guardian of) v. Region 2Hospital Corp. (1994), (NB CA), 150 N.B.R. (2d) 366 (N.B. C.A.). There is simply no material gap in the Act'streatment of supervisory orders.

47 Counsel for Mr. Arif confirmed at the hearing before this Court that his client's submission based on the Charter does not impugn the constitutionality of s. 39(1)(b) , or, for that matter, any other provision of the Act . The record reveals that the Minister's application satisfied all conditions precedent to the application of s. 39(1)(b). Indeed, the parties’ agreement that it was in Mr. Arif's best interests that Justice Athey make an order placing him under the supervision of the Minister, coupled with the uncontradicted evidence that Mr.

Arif was mentally incompetent and a neglected adult, triggered the application of s. 39(1)(b). Justice Athey acted throughout in accordance with the Act . In particular, her April 29, 2002 ruling is in conformity with s. 39(1)(b), as that provision was interpreted by this Court in Nouveau-Brunswick (Ministre de la santé & des services communautaires) c. D. (A.) . Justice Athey's conclusion that Mr.

Arif's Charter rights "will [not] be violated if the appropriateness of the placement is not determined in this application " is, in my view, unimpeachable. [ 67 ] Here, there is no material gap in the FSA with respect to the legislative authority granted to the Minister regarding the administration of the FSA and/or placement of children under protective care. As a result, the Court has no jurisdiction under the FSA for the relief sought in terms removal of a social worker from the file and/or determining a more suitable group home for the child.

There is no recourse available under the parens patriae jurisdiction of the Court either. As Madam Justice Wooder explained in C. (H.) v. New Brunswick (Minister of Family & Community Services) , 2003 NBBR 196 , 2003 NBQB 196 at paras 14 and 44 to 48 : 14 Child protection proceedings and adoptions are creations of statute. The process by which government interferes in the lives of its citizens for the purpose of ensuring the protection and security of children, and the principles under which such interference occurs, are contained in the Family Services Act , S.N.B. 1980, c. F-2.2 .

Numerous sections of the Act relate to foster home placements and the adoption process. It is not necessary to set them out in their entirety here. (…) 44 In my view, the same analysis and conclusion apply in the within case.

The legislature has seen fit to enact a statute and to give to the Minister various powers including the power to fix and apply criteria to determine who should act as foster parents, to fix and apply criteria to select suitable adopting parents and to consent to the adoption of children in care as a consequence of a guardianship order. 45 The Act establishes a comprehensive scheme which grants certain authority to, and imposes various obligations on, the Minister along with an absolute discretion to exercise her authority and discharge those duties.

The issue of whether the Minister has exercised her authority and discretion appropriately, for example, by meeting the duty to act bona fide , is not before this court. 46 The matter of judging the best interests of a child for whom the Minister is the parent, in the context of foster and adoption placements, has been given to the Minister. 47 The parens patriae jurisdiction should not be invoked to enable a court to substitute its decision for that of the Minister. To do so effectively permits the court to use the jurisdiction as a vehicle to amend the legislation.

That is not its purpose. 48 Further, in my view, the deficiencies in the Act identified by the applicant do not constitute a material gap. The absence of a provision which gives to prospective adopting parents the right to apply for interim custody does not call for judicial intervention. The fact that it is a "difference" from that Part of the Act which deals with private custody applications does not lead inevitably to the conclusion that there is a gap which must be filled.

There is no material gap in every instance where legislation differentiates between different groups in different situations or where legislation in this province is not identical to legislation in another jurisdiction. Nor is there a gap because the Act does not provide for every procedural or substantive matter which counsel proposes is critical to a consideration of the issue faced by the court. Conclusion On Issue 2 [ 68 ] In conclusion, the Court has general jurisdiction to grant a stay of proceedings. However, it is not appropriate to stay a Guardianship Application.

Such an extraordinary remedy is contrary to

Part IV of the FSA and, where the effect of the stay is to return the child to the parents even though it might not be in his best interests to do so, before hearing all the evidence. Such a remedy bypasses the best interests test mandated in s. 53(2) of the FSA . Lastly, the Court does not have jurisdiction to remove the child from the group home and place him in another one, nor to replace the social worker as requested by the Respondent because the legislature has conferred that decision-making responsibility solely upon the Minister.

DISPOSITION [ 69 ] The Respondent Y.A.’s Notice of Motion is dismissed. DATED at Saint John, New Brunswick this ______ day of June 2023. _________________________________ Danys R.X. Delaquis Judge of the Court of King’s Bench of New Brunswick - Family Division