C.M.M., Applicant, – v. –, 2023 NBKB 087

FDM-256-2023 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF MONCTON Date: May 24, 2023 Neutral Citation: 2023 NBKB 087 BETWEEN: C.M.M., Applicant, – and – THE MINISTER OF SOCIAL DEVELOPMENT, Respondent. DECISION BEFORE: Madam Justice Marie-Claude Bélanger-Richard AT: Moncton, N.B. DATE OF HEARING: April 25, 2023 DATE OF DECISION: April 26, 2023 DATE OF REASONS: May 24, 2023 APPEARANCES: Venessa Comeau Gerrard, for the Applicant Sarah M.M. Fitzpatrick, for the Respondent

Summary: Preliminary motion requesting an interlocutory injunction against the Minister of Social Development pending a judicial review application regarding the adoption process of a child BÉLANGER-RICHARD, J.: OVERVIEW

[ 1 ] An interlocutory injunction is an extraordinary remedy. It is discretionary in nature and must only be granted in accordance with established principles. In this matter, the actions of the Minister and the best interests of the child dictate the granting of such an extraordinary order pending the determination of the judicial review application to be filed by the Applicant pursuant to my Order. FACTS [ 2 ] The Applicant is a foster parent approved by the Minister of Social Development (“the Minister”).

In October 2021, the Minister took protective care of the child N.K. (“N.” or “the child”) and placed him with the Applicant. N. was four days old at the time and has remained under the constant care of the Applicant ever since. N. is now 18 months old. [ 3 ] Because of his biological mother, N. was born addicted to drugs with the possibility of Fetal Alcohol Spectrum Disorder. Upon his arrival at the Applicant’s foster home, N. went through many days of withdrawal.

In her Affidavit sworn on April 20, 2023, the Applicant describes the various health problems that N. has had since living with her and the care she has provided for him: 26. In the beginning, [N.] went through many days of withdrawals. His little body was in shock and was twitching for weeks. I laid with him for many nights and tried everything to keep him calm and relaxed. I kept the lights low, the sounds low and rocked him until it would pass, day after day. 27. When [N.] was two weeks old, he began with a fever. I took him to the hospital where he was admitted.

He had a urinary tract infection that travelled to his blood, and he went into septic shock. He spent two and half weeks in the pediatric ward where he was on IV antibiotics. On October 31, 2021, after passing many tests and scans, he was finally cleared to come home. This began a long list of testing for [N.]. 28. [N.] has kidney issues, liver issues and a low immune system. He was on antibiotics for the first six months of his life to prevent infections and septic shock. He has continued to be prescribed antibiotics almost once per month since this time.

As his immune system is compromised, [N.] attracts many different viruses which take a lengthy time to heal. 29. I travel to Moncton to see [N.]’s pediatrician, Dr. Sadek Salloum, every two weeks for blood work and checkups. The doctor is keeping a close eye on his kidney and liver functions. [N.] has had ultrasounds done to look at his liver as it was inflamed multiple times. 30. [N.] also has an upper and lower lip tie, weak lip muscles which cause excessive drooling. […] 32. On February 28, 2023, [N.] underwent surgery to have tubes put in his ears due to him having nine double ear infections.

This was to prevent further ear infections and conductive hearing loss. 33. In March of 2023, I also had a follow-up appointment in order to recheck [N.]’s blood for Hepatitis C. This test can only be performed and ruled out after he has reached 18 months of age. I am currently waiting the results for same. […] 35. Recently, [N.]’s doctor also recently discovered that [N.]’s soft spot on his head, which is supposed to close by 18 months old, is not closing as quickly as it should. This would mean that [N.] would need to have scans done if the situation does not improve. 36. Furthermore, Dr.

Salloum referred [N.] to a behavioral specialist in relation to his signs of Attention Deficit Hyperactivity Disorder (ADHD), his addiction to drugs and his tantrums. The tantrums began approximately three months ago and occur when [N.] is feeling mad or upset. During these tantrums, he will often bang his head on the floor and scream, which is dangerous due to the soft spot of his head.

[…] 37. I also bring [N.] for routine blood work in order to check his kidney and liver functions, as recommended by Dr. Salloum. […] 39. At the moment, I spend between two and four hours every two weeks at the pediatric ward with [N.]’s pediatrician running tests. […] [ 4 ] The Applicant has been separated from her husband since 2019. She owns a 4,500 square foot home and her parents live in an in-law suite attached to the home. [ 5 ] The Applicant has three biological daughters, ages 11, 13, and 19. Her eldest daughter, A., is in her first year at the University of PEI studying to become a veterinarian.

In her Affidavit, the Applicant describes a very strong bond between N. and her children. A. comes home from university every weekend to spend time with N. and she has daily Facetime calls with N. [ 6 ] The Applicant is the only mother N. has ever known. Although N. has been attending daycare 2 or 3 days a week since the age of 8 months, the drop-offs are still very difficult. N. cries and refuses to let anyone pick him up. The Applicant has to sit with him for a few minutes each time. When she returns to pick him up, N. is so excited that he cries if the Applicant does not get through the gates quickly enough.

In her Affidavit (at para. 44), the Applicant says that N. “runs to me and squeezes me with everything in him.” [ 7 ] Even though N. is used to having blood work done and seeing Dr. Salloum, there are still episodes when he clings to the Applicant, screams when the nurses try to lay him on the bed, and cries when Dr. Salloum touches him.

As soon as the nurses and the doctor leave the room, N. is completely well and cuddles on the knees of the Applicant. [ 8 ] On September 12, 2022, on November 10, 2022, and on January 19, 2023, the social worker Elise Benoit conducted home visits with N. at the Applicant’s residence. During all three visits, N. did not interact with Ms. Benoit. He remained very close to the Applicant. When Ms. Benoit attempted to touch N., he ran back to the Applicant and refused to approach the social worker. In her Affidavit (para. 46), the Applicant describes the home visit on January 19, 2023 as follows: 46.

During the January 19, 2023, visit, [N.] was extremely clingy and would not get off me to play with anything. He would look at Elise and put his head on my chest. If I tried to slide him off my knee to sit on the couch, he would cry. When Elise was asking me questions, as I tried to look at her to answer her questions, [N.] would grab my face to pull it back in his direction and give me a kiss. At one point, I put [N.] down for a moment, he started walking towards the playroom then he turned around and ran back to me to be picked up.

Whenever Elise walks in, [N.] jumps in my arms and will not let me put him down. [ 9 ] In her Affidavit, the Applicant also describes N.’s reactions when she was away for a few days. N. was cranky during the day and unable to settle down at night. The Applicant had to make Facetime calls late at night to calm him down enough to sleep. [ 10 ] In addition to N., the Minister has placed two other children with the Applicant.

There is no question that the Minister is satisfied with the care provided by the Applicant to N. and that all of his needs are being met by the Applicant (Affidavit of Elise Benoit sworn on April 25, 2023, at para. 24). [ 11 ] On July 13, 2022, the Minister was granted guardianship of the child N. (see Exhibit 1). At that time, no one mentioned to the Applicant that N. had extended family members who were interested in adopting him. [ 12 ] In early September 2022, the social worker Elise Benoit informed the Applicant of N.’s extended family in Nova Scotia who were interested in adopting him.

The Applicant asked for information about this extended family, but Ms. Benoit kept saying that the

Minister was not there yet. However, Ms. Benoit states in her Affidavit sworn on April 25, 2023, at para. 32, that “the plan was always for [N.’s] family, [Jo.] and [Je.], to adopt him and to have him grow up with [his] Siblings once it was determined his biological parents would not be able to care for him.” Jo. is N.’s maternal great-uncle and Je. is his wife. In May 2022, they adopted N.’s two siblings who do not have the same biological father as N.

N.’s siblings are currently 8 and 11 years old. [ 13 ] Being unaware of the Minister’s ultimate plan for N.’s adoption, the Applicant communicated with the Minister on September 19, 2022, and advised that she wanted the opportunity to adopt N. because “his separation from [her] would cause him great harm psychologically and emotionally and would also cause major setbacks in his development.” (Affidavit of the Applicant sworn on April 20, 2023, at para. 61).

On October 28, 2022, counsel for the Applicant sent a Notice of Intention confirming the Applicant’s intention to apply for N.’s adoption. [ 14 ] In response to the Applicant’s request and intention to adopt N., the Minister took the position that the Applicant had no right and refused to consider the Applicant’s intention to adopt. According to the Minister, it was important for N. to be “reunited” with his family and siblings. I put the word “reunited” in quotation marks because this word is defined as to “come together or cause to come together again after a period of separation” (Oxford Dictionary).

I note that N. has never seen or met Jo. and Je. since his birth. [ 15 ] As Jo. and Je. reside in Nova Scotia, the Minister was required to work with the Nova Scotia authorities regarding the approval process to be completed for N.’s adoption. As part of this process, a Structured Analysis Family Evaluation (SAFE assessment) of the prospective adoptive family was required.

Due to a significant backlog of work, the SAFE assessment was not completed until the end of March 2023. [ 16 ] On April 4, 2023, the extended family members, Jo. and Je., were formally approved by the Minister as adoptive parents for N., and the child N. was therefore placed with them for adoption. At the hearing, counsel for the Minister confirmed that April 4, 2023 was the official date on which N. was placed for adoption with Jo. and Je. [ 17 ] The social worker Elise Benoit then informed the Applicant that N. would be transitioned into the care of Jo. and Je. as early as April 21, 2023. Ms.

Benoit prepared a plan for the transition to begin the week of April 24, 2023, and to be completed by May 1, 2023.

The transition plan includes two visits to the Applicant’s home, a half day in the community, two full days with Jo. and Je., and the following day, N. is to go home with Jo. and Je. [ 18 ] Upon being informed of the transition schedule, on April 20, 2023, the Applicant filed a Notice of Preliminary Motion (Form 37B) seeking an abridgment of time for service, an interlocutory injunction for the child N. to remain in her care pending the determination of the judicial review application that she intended to file, and an order granting her the interim physical care of the child N. until a final decision is made regarding the judicial review application. [ 19 ] The abridgment of time for service was granted.

On April 25, 2023, I heard the parties’ submissions on the preliminary motion. On April 26, 2023, I granted an interlocutory injunction against the Minister with reasons to follow. The terms of my Order are as follows: 1. Pursuant to Rule 40.05 of the Rules of Court , an interlocutory injunction against the Respondent, the Minister of Social Development, is granted until a final determination is made on the judicial review application that the Applicant [C.M.M.] must file in accordance with this Order or until further Order of the Court, such interlocutory injunction being granted upon the following terms:

a) the Minister of Social Development shall not remove the child [N.M.], born on […], 2021, from his current foster home in order for the said child to remain in the care of the Applicant [C.M.M.]; and

b) the Minister of Social Development shall not take any further step regarding any adoption process regarding the child [N.M.]. 2. No later than May 5, 2023, the Applicant [C.M.M.] shall file and serve an Application for judicial review of the Minister’s decision regarding the child [N.M.]’s adoption placement. 3. No later than May 25, 2023, the Respondent, the Minister of Social Development, shall file her affidavit(

s) in response to the Applicant’s judicial review application.

4. No later than May 26, 2023, either party may serve to the other party a Notice to Call an Expert Witness. 5. The hearing of the judicial review application shall be held on June 1 and 2, 2023, commencing at 9:30 a.m. each day. [20] After my Order was issued, counsel for the Minister requested clarification of paragraph 1(

b) of the Order. I confirmed that thechild N. could meet and have visits with his extended family, and that this would not contravene my Order. At the hearing, theApplicant had mentioned that she had no objection to facilitating these visits between N. and his extended family. [21] Here are the reasons for my decision on the interlocutory injunction. LAW AND ANALYSIS [22] The test for an interlocutory injunction is set out in RJR-MacDonald Inc. v. Canada (Attorney General), (SCC),[1994] 1 S.C.R. 311, [1994] S.C.J. No. 17. It has three parts: 1. Is there a serious issue to be tried? 2.

Will the moving party suffer irreparable harm if the injunction is not granted? 3. Does the balance of convenience favour the order sought? Serious issues to be tried [23] As to the first part of the test, it is well-known that the threshold is low. There must be a serious question to be tried, but there isno need to show a strong prima facie case. As long as the claim is not frivolous or vexatious, a Court should be satisfied that there is aserious question to be tried.

Counsel for the Minister conceded at the hearing that this proceeding raises a serious question to be tried.However, I believe it is important to expand on the serious issues that arise from the circumstances of this case. [24] In N.C. and L.C. v. Minister of Social Development, 2020 NBCA 27, our Court of Appeal found that some of the criteria set out inRegulation 85-14 (Adoptive Applicant Regulation – Family Services Act) were mandatory minimum eligibility requirements foradoption.

In this case, one of the prospective adoptive parents had been convicted of fraud, which made that person ineligible to adoptunder section 3(1)(e.6) of the Regulation 85-14. The Court of Appeal concluded that there was no decision or exercise of discretion bythe Minister in the application of this criterion. Consequently, the unsuitability of the prospective adoptive parents to adopt was notreviewable.

The Court of Appeal did mention, however, that a Court may have jurisdiction to review the Minister’s actions if “some ofthe [adoption] criteria might require the Minister to assess and decide if they have been satisfied” (para. 37). [25] It is trite law that the Minister is responsible for making adoption placements and determining the suitability of individuals to beadoptive parents. Section 67(2) of the Family Services Act stipulates that the determination of suitability must be made in accordancewith the criteria set out in

Part V of the Family Services Act and in the regulations.

Part V of the Family Services Act provides that “inplacing a child for adoption the minister or the parent shall put above all other circumstances the best interests of the child” (section71(1)). The expression “best interests of the child” is defined in

section 1 of the Family Services Act. [26] The Adoptive Applicant Regulation (Regulation 85-14) was promulgated under the Family Services Act. Section 3(1) and othersections of this regulation list various requirements that the prospective adoptive parents must meet in order to be deemed suitable foradoption. As noted in N.C., supra, most of the criteria listed in the Regulation 85-14 are either met or not met with “no room to dispute”(para. 37). [27] In P.T. and S.T. v.

The Department and Minister of Social Development for the Province of New Brunswick and J.M.N., 2011NBQB 318, the prospective adoptive parents sought a judicial review of the Minister’s decision that they were not suitable for theprivate adoption of a child. The child had been placed with the prospective adoptive parents two days after birth and was 11 months oldat the time of the application. The birth mother had consented to the adoption placement. During the initial background check of theprospective adoptive parents, the Minister did not check the former married name of one of the applicants.

It was later discovered thatthe prospective mother’s daughter from a previous marriage had been a victim of sexual assault. Upon learning this information, the

Minister determined that the applicants were unfit to be adoptive parents because the mother had failed to protect her daughter and report the abuse. The birth mother subsequently withdrew her consent to the adoption. [ 28 ] In informing the applicants that they were unfit to be adoptive parents, the Minister sent a letter explaining the decision by reference to a breach of

section 31 of the Family Services Act . As Walsh J. noted in P.T. , this criterion was not listed in

Part V or in the regulations but was part of an internal policy regarding criminal record check and Social Development record check to be made and consented to by the prospective adoptive parents.

In quashing the Minister’s decision, Walsh J. stated: 63 For two reasons fatal to the Minister's position on this judicial review, this reference in the Minister's Decision to a "contravention" under "section 31" is an error of law, which error I conclude infected the Minister's finding that the applicant's are "unsuitable" as adoptive parents. 64 The first, and most significant and obvious reason, is that these so-called criteria do not fall under the prescription of FSA, 67 (2) : The Minister ... shall determine according to the criteria established in this Part and in the regulations , whether the applicant is "suitable"... 65 Even on a plain, generous reading, the criteria noted in the SD Policy and Procedures document appear as both different and/or additional to the criteria set out in Regulation 85-14 .

To put it differently and more directly, the "Policy Statement" criteria established and then approved by the two Deputy Ministers in s. 1.2 of the SD Record Check and Criminal Record Check Policy and Procedure document do not, however well intentioned, have any force of law; they were not passed by the Legislature as part of

Part V of the FSA , nor promulgated by the Lieutenant Governor in Council as a regulation authorized by the Act , nor does it find legal source in a regulation. In this latter regard, I note the special circumstance, not applicable here, addressed by section 9 (5) of Regulation 85-14 : The Minister shall give preference to placing siblings in the same adoptive home or related adoptive homes if the home (

a) meets the best interests of the child, (

b) meets the criteria and standards set out in this Regulation, and (

c) meets the criteria and standards set by the Minister . (Emphasis added) 66 Indeed, in another internally generated document the Minister has given direction, in my opinion properly so, to any "Placement Suitability Conference": The Family Services Act Regulation 85-14 sets out the criteria which must be followed while determining suitability for assessing private adoption families. ( Practice Standards Private Adoption , Practice Standard 7, Record at p. 442) 67 Standards, practices, policies, protocols and procedures created and employed within a ministerial department for guidance and consistency in the carrying out of a Minister's mandate is one thing; creating law through them is quite another.

And, this is what the policy aspect of the SD Policy and Procedures document purports to do. 68 To reinforce the point being made, even a regulation cannot amend a definition within

an Act (See: Carter Brothers Ltd. v. New Brunswick (Registrar of Motor Vehicles) , supra at para. 17). A fortiori , a ministerial document, however named, most certainly cannot do the same to

an Act or regulation. 69 The SD policy in question purports to create specific criteria that shall prevent a person from being an adoptive parent unless an exemption is granted under specified circumstances. Indeed, it goes further. The "Guidelines for Exemptions of Contraventions" attached to the policy state that an exemption will only be granted in exceptional situations ( Record , at p. 1005). It is beyond the Department's authority to create these thresholds, absent a legal source of authority.

70 The FSA is the authority and Regulation 85-14 is the subordinate authority for the adoption assessment and the considerations required. The policy statements contained within the SD policy document are not because, in my opinion, they are not authorized by the Act or regulation. [ 29 ] In the present matter, the Minister invokes section 9(5) of the Regulation 85-14 to justify his decision to place the child N. for adoption with his extended family members. Section 9(5) reads as follows: 9(5) The Minister shall give preference to placing siblings in the same adoptive home or related adoptive homes if the home (

a) meets the best interests of the child, (

b) meets the criteria and standards set out in this Regulation, and (

c) meets the criteria and standards set by the Minister. [ 30 ] By using the word “shall”, section 9(5) obliges the Minister to place siblings in the same adoptive home as long as certain conditions are met. The Minister must be satisfied that the home meets various criteria, standards and, most importantly, the best interests of the child. As in N.C. , some criteria and standards may not leave room for dispute and therefore do not require the exercise of discretion by the Minister.

However, while I agree that the Family Services Act gives to the Minister the power to assess the best interests of a child in the context of adoption placements (Wooder J. in H.C. v. New Brunswick (Minister of Family and Community Services) , 2003 NBQB 196 , at para.44-46), the Minister must still exercise his power and discretion appropriately and in accordance with the law, which includes acting in good faith and in accordance with the principles of fairness and natural justice. [ 31 ] This brings me to the definition of “siblings” found in the Regulation 85-14: “siblings” includes (

a) two or more children who have the same natural parent or natural parents, and (

b) two or more children who have been living together in a family relationship where love, affection and ties exist between such children and includes children who have been living with foster parents. [ 32 ] In the present case, the Minister clearly indicated that he only considered N.’s extended family members, namely Jo. and Je., for adoption because two of N.’s biological siblings were already living with them.

It appears that the Minister never considered the Applicant’s children who were living with N. in the foster home despite the fact that N. and the Applicant’s children seem to meet the definition of “siblings” as they have “been living together in a family relationship where love, affection and ties exist”.

In this context, there is arguably a serious question as to whether the Minister acted in accordance with the law and in an appropriate manner, having regard to the principles of fairness and natural justice. [ 33 ] This case also raises the issue of whether section 9(5) of the Regulation 85-14 is inconsistent with the Family Services Act . As pointed out by Walsh J., a regulation is subordinate to its enabling statute and “cannot amend a definition within

an Act”. The definition of best interests of a child in the Family Services Act provides for a consideration of, among other factors , “the love, affection and ties that exist between the child and each person to whom the child’s custody is entrusted, each person to whom access to the child is granted and, where appropriate, each sibling of the child and, where appropriate, each grandparent of the child” (emphasis added). In the Family Services Act , the sibling factor does not take precedence over the other factors that form part of the definition of the best interests of the child.

However, section 9(5) of the Regulation 85-14 gives priority to the sibling factor over all other factors that define the best interests of a child. Therefore, the validity of section 9(5) may be challenged as contrary to its enabling statute. [ 34 ] I am therefore satisfied that there are serious issues to be tried and that the first part of the test is satisfied.

Irreparable harm [35] In RJR-MacDonald, the Supreme Court explains the concept of “irreparable harm” in terms of the nature of the harm sufferedrather than its magnitude. It is harm that either cannot be quantified in monetary terms, or which cannot be cured, usually because oneparty cannot collect damages from the other (RJR-MacDonald, at para. 59). [36] In general, the same principles should be applied by a Court whether the relief sought is an injunction or a stay (RJR-MacDonald, para. 41). In D.H.P. v. P.L.P., (NB CA), [2012] N.B.J.

No. 424 (N.B.C.A.), our Court of Appealconsidered an application for a stay in a child custody matter. Richard. J.A., as he then was, recognized that the test for a stay (orinjunction) had to be modified somewhat in child custody matters because the overriding principle is the best interests of the child. Hestated: 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 a custodyorder is sought, the standard tripartite test for the determination of the motion must be somewhat modified. In Lefebvre v. Lefebvre, (ON CA), [2002] O.J. No. 4885 (C.A.) (QL) the second component of the test was re-statedto take into account the nature of the order sought to be stayed. It was determined that the inquiry should be not whether the applicantwill suffer irreparable harm but whether the child or children, as the case may be, will suffer such harm. In C.B. v. P.C., 2003 ABCA 321, [2003] A.J.

No. 1343 (C.A.) (QL), Russell J.A. modified the second and third components of the test to reflect the paramountimportance of the best interests of the child.

He stated at para. 4 that "those interests mandate a consideration of whether the child willsuffer irreparable harm from the denial of a stay, and it is those interests that will ultimately determine the balance of convenience." In Nova Scotia, to determine whether a child custody order should be stayed, the inquiry is "whether there are circumstances of a specialand persuasive nature to grant a stay." The three-part test is considered generally relevant but is not "slavishly applied": D.D. v. NovaScotia (Minister of Community Services), 2003 NSCA 146 , [2003] N.S.J.

No. 477at 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: A third clarification is necessary because, unlike RJR-MacDonald, this case involves the care and custody of children. It follows that thedecision 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. [...] 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 added.] [37] Therefore, as stated in D.H.P., the question of irreparable harm must be analyzed from the perspective of the child’s bestinterests. [38] In the present case, the Applicant argues that the removal of the child N. from her care would be detrimental to his progress andthe breaking of the attachment and bond he has with her and her family would cause severe trauma and extreme stress. This would leadto an overall decline in his development.

The Minister argues that this is simply the opinion of the Applicant and that the Minister is the

“experienced party when it comes to young children being moved from a foster family it had a strong bond with to an adoptive home”. [ 39 ] The evidence is overwhelming that the child N. has a strong attachment to the Applicant. She is the only parental figure N. has known throughout his life. N. is also very close to the Applicant’s children. The evidence is undisputed that N.’s health problems have required constant care and follow-up, and the Applicant is fully aware of N.’s health history and care.

The Applicant has been the constant presence and support in N.’s life since his birth. [ 40 ] On the other hand, N. has yet to meet with Jo., Je. and his siblings in Nova Scotia. While the social worker Elise Benoit states that Jo. and Je. are “fully” aware of N.’s specific needs in relation to his health issues, her Affidavit lacks details as to the source of her personal knowledge in this regard.

Although Jo. and Je. have made some inquiries about N., I am not convinced that they fully understand and are informed about the history of his health problems, the care he requires on an ongoing basis, and his recent behavioral problems. In addition, Jo. and Je. have not yet arranged for the bi-weekly medical follow-up that N. would require in Nova Scotia. [ 41 ] Since July 2022, the Minister has known that he wanted to place N. for adoption with Jo. and Je.

The Minister did not show any concern for N.’s well-being and growing attachment to the Applicant during this 8-month delay which culminated in an official adoption placement with Jo. and Je. Therefore, I do not understand why the Minister should now be concerned that the adoption process be halted for approximately one month to allow for the hearing of the Applicant’s judicial review application.

Whilst finality is important, there is no risk to N. of a short delay in his full transition to his extended family if the judicial review application fails. [ 42 ] I fail to see how the Minister’s general experience in dealing with the transition from foster care to adoption addresses the specific risk of harm that could result from the child N. being removed from the Applicant’s care and home pending the determination of the judicial review application.

Again, the evidence shows that even the short absences of the Applicant have traumatized the child N. and caused him distress. [ 43 ] Keeping the child N. in the care of the Applicant pending the determination of the judicial review application will prevent the major disruption that would necessarily result in the absence of an interlocutory injunction. While the Applicant’s judicial review application is far from being a foregone conclusion, I have real concerns about subjecting N. to the trauma of living with complete strangers for this short period of time.

Considering N.’s best interests, the status quo poses less risk to N. Balance of convenience [ 44 ] As part of my Order, I have directed that the hearing of the Applicant’s application for judicial review be held in approximately one month’s time. Given the relatively short period before the hearing of the application, I see no reason to disrupt N.’s stability and continuity and to jeopardize his progress and development.

I see no benefit to N. in being placed at this time with people who are currently complete strangers to him, when on the other hand, the Applicant provides a loving, stable, and supportive environment that has always met all his needs and allowed him to develop to his full potential. The love and quality of care that N. receives from the Applicant outweigh any prejudice to him arising from the temporary suspension of his adoption process.

Jurisdiction of the Court to grant an interlocutory injunction [ 45 ] As part of the Minister’s submissions at the hearing, his counsel raised the lack of jurisdiction of this Court to grant an injunctive relief against the Crown on the basis of section 14(2) of the Proceedings Against the Crown Act , R.S.N.B. 1973, c. P-18 . This

section reads as follows: 14(2) Where, in proceedings against the Crown, any relief is sought that might, in proceedings between persons, be granted by way of injunction or specific performance, the court shall not, as against the Crown, grant an injunction or make an order for specific performance but may, in lieu thereof, make an order declaratory of the rights of the parties. [ 46 ] Since the Respondent is the Minister of Social Development and “officer” is defined in the Proceedings Against the Crown Act to include a Minister of the Crown, I consider that section 14(4) of the Proceedings Against the Crown Act is the applicable

section in this matter. Section 14(4) reads as follows: 14(4) The court shall not in any proceedings grant an injunction or make an order against an officer or agent of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown, but, in lieu thereof, may make an order declaratory of the rights of the parties.

[ 47 ] In her written submissions, counsel for the Minister did not refer to any case law supporting the Minister’s immunity from injunctive relief. At the hearing, counsel briefly mentioned a decision of my colleague Richard Petrie, without providing me with the citation. I searched for and found that decision, which is reported as A.L.S. and C.G.S. v. The Minister of Social Development , 2022 NBKB 176 . In his decision, Petrie J. dismissed the application for an injunction against the Minister on the basis that the applicants had not satisfied the third part of the RJR-MacDonald test.

He then added the following comments in obiter : 43. Even if I am wrong, the second reason is perhaps even more fundamental, which is that I am simply not convinced that this Court has the authority to issue injunctive relief against the Crown or its servants, in any event. I believe this is a fundamental problem for the applicants, in particular subsections 14(2) and 14(4) of the Proceedings Against the Crown Act , which directs that no injunctive relief can be granted against a Crown or Crown servant acting lawfully in the performance of their duties. I will simply say that that

section does not seem to distinguish between interim or permanent specific performance relief and I do note from the decision of J.M.S. out of British Columbia, that the judge there similarly found. [ 48 ] Similarly in the case cited by Petrie J., e.g. J.M.S. v.

British Columbia (Director of Child, Family And Community Services) , 2021 BCSC 2104 , the comments about the lack of jurisdiction to grant an injunction against the Crown were made in obiter , following the denial of an injunction for failure to satisfy the RJR-MacDonald test. [ 49 ] In her brief, counsel for the Minister mentioned some exceptions to the general rule of immunity and claimed that none of the exceptions applied in this case. She referred to the following case in support of her argument: CUPE Local 252 v. New Brunswick (Treasury Board) , 2021 NBQB 224 , at para. 43 . [ 50 ] In Smith v.

Nova Scotia (Attorney General) , 2004 NSCA 106 (N.S.C.A.) , I found a thorough analysis of provisions similar to sections 14(2) and 14(4) of the Proceedings Against the Crown Act . In that decision, Cromwell J. (as he then was) provides the historical background to the Crown immunity for the purpose of interpretating sections 16(2) and 16(4) of the Proceedings Against the Crown Act , R.S.N.S. 1989, c. 360 (“ PACA ”).

For ease of reference, I will set out sections 16(2) and 16(4) of PACA : Section 16(2): Where, in proceedings against the Crown, any relief is sought that might, in proceedings between persons, be granted by way of injunction or specific performance, the court shall not, as against the Crown, grant an injunction or make an order for specific performance, but may, in lieu thereof, make an order declaratory of the rights of the parties.

Section 16(4): The court shall not in any proceedings grant an injunction or make an order against an officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown that could not have been obtained in proceedings against the Crown, but may, in lieu thereof, make an order declaratory of the rights of the parties. [ 51 ] In Smith , Justice Cromwell embarks on a lengthy discussion of the context, purpose and scheme of modern proceedings against the Crown legislation (such as PACA and the New Brunswick Proceedings Against the Crown Act ).

Cromwell J. writes: 83 Viewed in this context, the purpose of modern proceedings against the Crown legislation such as the PACA is clear. It was intended to overhaul, fundamentally, the previously existing common and statutory laws that gave the Crown a uniquely privileged position in litigation. Stated broadly, the legislation swept away many of the immunities and special procedural rights of the Crown as a litigant and, in general, put the Crown in the same position as an ordinary litigant, subject to specified exceptions. […]

85 I conclude that an important contextual consideration in interpreting s. 16(4) of the PACA is that, viewed in light of the law at the time of its enactment, its purpose was to reform, fundamentally, the pre-existing common and statute law with respect to proceedings against the Crown by placing the Crown, with some specified exceptions, in the same position as an ordinary litigant as regards liability, court jurisdiction, procedure and remedies. [ 52 ] While Crown officers and agents are entitled to the immunities of the Crown itself, Justice Cromwell asserts that section 16(4) of PACA does not preclude injunctions against Crown officers in all cases.

Comparing section 16(2) and section 16(4) of PACA , he states: 86 I turn to the text of s. 16. The overall structure of the

section reflects the statute’s broad purpose. Section 16(1), as noted, states the general rule that in proceedings against the Crown, the court may make any order that it may make in proceedings between persons and otherwise give the relief that the case requires, subject to the exceptions set out in the Act .

The remaining subsections, including 16(4), set out those exceptions. 87 The exception set out in s. 16(2) is expressed in absolute language: “... the court shall not, as against the Crown, grant an injunction ...” But the text of the exception in s. 16(4), in contrast, creates a less all-encompassing limitation on injunctions against Crown servants. It does not set out a blanket prohibition with respect to Crown officers as s. 16(2) does with respect to the Crown itself.

The prohibition as regards injunctions in s. 16(4) is directed only to situations in which “...the effect of granting the injunction ... [against the Crown officer] would be to give any relief against the Crown that could not have been obtained in proceedings against the Crown ...”. If a general prohibition of injunctions against Crown officers had been intended, the Legislature could have used in s. 16(4) the more all- inclusive prohibition that it used in s. 16(2).

Moreover, it is implicit in the wording that injunctions against Crown officers were available in some circumstances. 88 I conclude that the ordinary sense of the words of s. 16(4), read in the context of the pre-existing law and the scheme and purpose of the Act leads to two conclusions: first, that in drafting the section, the Legislature assumed that injunctions against Crown officers were available in some circumstances; and, second, that the intention was not to prohibit such injunctions in all circumstances. [ 53 ] Therefore, while an injunction cannot be granted against the Crown (section 14(2)), an injunction can be granted against a Crown officer if the case falls within the type of case that was recognized at common law as not being, in effect, an injunction against the Crown (section 14(4)).

Cromwell J. went on to say that at common law the availability of injunctions against Crown officers was based on two main principles: first, that acts beyond authority could be enjoined, and second, that acts which would attract personal liability of the Crown officer could also be enjoined ( Smith , para. 101 ). [ 54 ] To better understand the kinds of situations in which a Crown officer may be enjoined under these two principles, Cromwell J. reviews many authorities and gives examples of situations in which these principles would apply, particularly with respect to acts beyond authority.

Among these examples, he describes two situations which I consider relevant to the present proceedings: 107 Many cases base the availability of injunctions against Crown officers on the ground that they are alleged to be acting in excess of valid statutory powers. The “excess of statutory powers”, however, may take many forms. The cases illustrate that included in this category are situations in which: […]

(2) The acts do not fall within the scope of permitted acts on the proper

interpretation of the legislation. For example, in Pacific Salmon , the court confirmed its jurisdiction to enjoin actions by a minister in excess of his statutory powers. The minister, purporting to rely on power delegated to him by regulation, had ordered the plaintiff to stop delivering certain goods to an airport but the plaintiff claimed that the relevant regulations, properly interpreted, did not prohibit mere delivery of the goods and that the Minister had therefore exceeded his powers under them. See also Baxter Foods Ltd. v. Canada (Minister of Agriculture) (1988), 21 F.T.R. 15 (Fed. T.D.) .

(3) The acts are authorized by subordinate legislation which is itself ultra vires : see for example Esquimalt Anglers’ Association , supra . […] [ 55 ] Applying these principles to the present case, I am of the view that the Minister’s actions were arguably beyond his statutory

authority. Properly interpreted by reference to the definition of “siblings”, section 9(5) of the Regulation 85-14 does not permit the Minister to disregard the Applicant’s application for adoption.

It is also arguable that section 9(5) of the Regulation 85-14 may be ultra vires as it contravenes the Family Services Act . [ 56 ] Having concluded that the Applicant has an arguable case that the challenged actions of the Minister in giving preference to N.’s extended family in the adoption process and in excluding the Applicant from that process were not authorized, I conclude that the Minister can be enjoined to do what I have ordered him to do.

DATED at Moncton, New Brunswick, this 24 th day of May 2023. __________________________________________ Justice Marie-Claude Bélanger-Richard Court of King’s Bench of New Brunswick