J.C. APPELLANT - v. -, 2015 NBCA 28

COURT OF APPEAL OF COUR D'APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 51-14-CA V.C. APPELLANT V.C. APPELANTE - and - - et - THE MINISTER OF SOCIAL DEVELOPMENT and J.C. RESPONDENTS AND BETWEEN: J.C. APPELLANT - and - THE MINISTER OF SOCIAL DEVELOPMENT and V.C. RESPONDENTS LA MINISTRE DU DÉVELOPPEMENT SOCIAL et J.C. INTIMÉES ET ENTRE : 64-14-CA J.C. APPELANTE - et - LA MINISTRE DU DÉVELOPPEMENT SOCIAL et V.C. INTIMÉES V.C. and J.C. v. The Minister of Social Development et al., 2015 NBCA 28 CORAM: The Honourable Justice Larlee The Honourable Justice Deschênes The Honourable Justice Quigg V.C. et J.C. c.

La ministre du Développement social et autre, 2015 NBCA 28 CORAM : l’honorable juge Larlee l’honorable juge Deschênes l’honorable juge Quigg

Appeal from a decision of the Court of Queen’s Bench: April 15, 2014 Appel d’une décision de la Cour du Banc de la Reine: le 15 avril 2014 History of Case: Historique de la cause : Decision under appeal: 2014 NBQB 95 Décision frappée d’appel : 2014 NBBR 95 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: January 13, 2015 Appel entendu : le 13 janvier 2015 Judgment rendered: April 30, 2015 Jugement rendu : le 30 avril 2015 Reasons for judgment: The Honourable Justice Quigg Concurred in by: The Honourable Justice Larlee The Honourable Justice Deschênes Counsel at hearing: For the appellant V.C.: Misty Amber Matthews-Emery For the appellant J.C.: Patricia Gallagher Jette For the respondent The Minister of Social Development: David R. Colwell, Q.C.

Motifs de jugement : l’honorable juge Quigg Souscrivent aux motifs : l’honorable juge Larlee l’honorable juge Deschênes Avocats à l'audience : Pour l’appelante V.C. : Misty Amber Matthews-Emery Pour l’appelante J.C. : Patricia Gallagher Jette Pour l’intimée la ministre du Développement Social : David R. Colwell, c.r. THE COURT The appeals are dismissed. LA COUR Les appels sont rejetés.

The judgment of the Court was delivered by QUIGG, J.A. I. Introduction [ 1 ] The appellant mother, V.C., and her mother, J.C. (maternal grandmother), appeal a decision of a judge of the Court of Queen’s Bench, Family Division dated April 15, 2014. In accordance with the relevant provisions of the Family Services Act , S. N. B. 1980, s. F–2.2, he awarded the Minister guardianship of V.C.’s five children ranging in age from two to twelve years.

The judge further determined that the children could benefit from continued access to both their mother and maternal grandmother, and granted unstructured access in a manner to be determined by the Minister in accordance with the best interests of the children. The judge also endorsed the Minister’s plan to ensure access among the children, the frequency and extent of which is similarly to be determined by the Minister in each of the children’s best interests. The mother raises two grounds of appeal; the grandmother raises six. I would reject all grounds and dismiss both appeals. II.

Background [ 2 ] The Minister became involved with this family in May 2008. At that time the mother had two children and was cohabitating with an abusive partner who was not their father. Approximately one year later, the mother began cohabitating with a new partner who became the father of the next three children. The Minister remained involved through a series of court orders (both supervisory and custody) until a few months after the third child was born.

In 2010, protective care of the children was taken, but in May 2010 the Minister decided to return the children to the mother due to progress being made by her. The three children were returned under a supervisory order to safeguard them. The Minister’s next intervention arose in 2012, at which time the mother had four children and was expecting a fifth. The mother was still residing with the father of the youngest three children and, despite the Minister’s efforts to resolve the evident dysfunction in the household, he found it necessary to take protective care of all five children.

This action was triggered by an incident of domestic violence in September 2012. The children were placed in a foster home pursuant to a custody order, which has been extended over time. In March 2013 the Minister applied for a Guardianship Order. [ 3 ] In April 2013, the father of the three youngest children was incarcerated. He was released before the trial in the Court of Queen’s Bench began, but did not participate in the proceedings.

The father of the two eldest children was incarcerated at the time the trial began; he consented to the guardianship and was given permission to withdraw from further attendance. The Minister’s concurrent plan at the time of the trial was to continue to work toward reunification of the children with the mother although the probability of this occurring, in the Minister’s view, was slim. [ 4 ] In June 2013, the maternal grandmother applied for custody of all five children.

By the time of trial she sought custody of the two eldest children only, with access to the three youngest, if the mother was not successful at trial. III.

Grounds of Appeal [ 5 ] The mother is appealing on grounds that the application judge erred in principle and law by: 1. compromising procedural fairness and the image of judicial impartiality by intervening in the cross-examination of witnesses and the trial process as a whole; 2. pre-determining issues of relevance, not permitting counsel full opportunity to test the credibility of witnesses on cross- examination, and by not fully and equally considering the credibility of all parties, and witnesses.

He thereby rendered a decision based on evidence that had not been fully tested, and which was overly reliant on negative historical evidence. The decision lacked focus on the recent, positive evidence of improvements made by the mother. As a result, the decision was not in the best interests of the children.

[6] The grandmother is appealing on grounds that the application judge erred: 1. in denying a fair hearing consistent with the principles of fundamental justice when he stated that it did not matter if the Ministerfiled “fraudulent” affidavits in the proceeding; 2. when he seemed to say that it was not relevant whether or not the Minister conducted herself following the “rule of law” and thatthe Minister was above the law in such a proceeding; 3. when he attempted to “shut down” cross-examination by the appellants thus creating an atmosphere of intimidation and hostilitythroughout the trial; 4. in his findings of fundamental and essential facts, specifically that she had drug problems; 5. in not giving careful and due consideration to the wishes of two of the children; 6. in granting a guardianship order when there was insufficient evidence.

IV. Standard of Review [7] The standard of review that governs in these types of cases can be found in S.B. v. Minister of Family andCommunity Services, 2006 NBCA 41, [2006] N.B.J.

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

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

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

K.A.M., 2003 NBCA 33, 259 N.B.R. (2d) 291, at paras. 7-9; and N.J.P. v.The Minister of Social Development, 2012 NBCA 3, 382 N.B.R. (2d) 245, at paras. 4-5. [8] The above jurisprudence instructs that the scope of appellate review with respect to guardianship cases isquite narrow and, in the absence of material error such as a serious misapprehension of the evidence or an error of law, deference must beshown to the application judge. V. Analysis – Mother A. Procedural Fairness and judicial interference

[9] The mother and maternal grandmother both submit that the application judge interfered in the conduct of thetrial to the extent that procedural fairness and judicial impartiality were compromised. They purport that a review of the record revealsrepeated interruptions and interventions by the judge, particularly with respect to the cross-examination of the Minister’s witnesses bycounsel for the mother as well as counsel for the maternal grandmother.

In her amended written submission the mother states thefollowing: • It is respectfully submitted that the 17 volume transcript is overridden with examples of the trial judge descending into the arena,particularly during the cross-examination, by both counsel for the mother and counsel for the grandmother, of key witnesses for theMinister, including the two lead social workers, Mack Mackenzie and Brandon Pike, the social work supervisor, Diane Arthurs, and theRegional Consultant, Beth Marr-Ernst. • The Appellant respectfully submits that there are numerous examples of the learned trial judge interrupting Appellants’ counsel,breaking the sequence of questions and answers, rephrasing questions for the Appellants’ counsel, summarizing the witnesses’ testimonyduring cross-examination, and most notably, repeatedly challenging Appellants’ counsel at length as to relevance in the midst of cross-examination. • The appearance of fairness of the proceedings was further compromised by the procedural irregularity of the order in which thelearned trial judge determined counsel would ask questions of the witnesses.

Despite the fact that the Appellant mother was a respondentto the Application of the Minister and the Application of the Appellant grandmother, the learned trial judge ordered that counsel for theAppellant mother cross-examine first, followed by counsel for the Appellant grandmother. [10] The mother contends that the nature and extent of the interventions made by the application judge illustrate thejudge was not simply posing questions to the witnesses for clarification, but that the interventions were directed at counsel with a certain“tone”. [11] In John Sopinka, Sidney N. Lederman & Alan W.

Bryant, The Law of Evidence in Canada, 2nd ed. (Markham,Ont.: Butterworths, 1999) the authors state: The search for truth is not the only value accommodated in the rules of evidence. The rules are also designed to enhance the efficiency ofthe trial process itself. The fundamental principle that the evidence presented to the court must be relevant to the facts in issue ensuresthat the court is not distracted by collateral matters. [p.4] [12] In United Nurses of Alberta v. Alberta (Attorney General), (SCC), [1992] 1 S.C.R. 901, [1992]S.C.J.

No. 37 (QL), McLachlin J. (as she then was), writing for the majority, states the right to cross-examine is not unlimited. All cross-examination is subject to the judge’s discretion to refuse irrelevant cross-examination. In R. v. Atkinson (1981), 33 N.B.R. (2d) 137,[1981] N.B.J. No. 26 (C.A.) (QL), leave to appeal refused [1981] S.C.C.A.

No. 257 (QL), this Court states the following respectingjudicial interference: A good deal of the argument on the hearing of this appeal dealt with the assertion by the appellant that the trial judge, by his questionsand remarks during the trial, unduly interfered with the conduct of the trial and deprived the accused of a fair trial. We regard such anassertion, per se, as serious, and in order to make a proper assessment of it in this case, the issue being one of extent, we have read theentire trial transcript. […] In Jones v.

National Coal Board, [1957] 2 Q.B. 55 (C.A.), Lord Denning described the role of a trial judge in the following terms at pp.63, 64 and 65: "In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not toconduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries.

Even inEngland, however, a judge is not a mere umpire to answer the question 'How's that?' His object, above all, is to find out the truth, and todo justice according to law; and in the daily pursuit of it the advocate plays an honourable and necessary role. Was it not Lord EldonL.C. who said in a notable passage that 'truth is best discovered by powerful statements on both sides of the question'?: see Ex Parte

Lloyd. And Lord Greene M.R. who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking

part in their disputations? If a judge, said Lord Greene, should himself conduct the examination of witnesses, 'he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict': See Yuill v. Yuill . Yes, he must keep his vision unclouded. It is all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth: and the less dust there is about the better.

Let the advocates one after the other put the weights into the scales - the 'nicely calculated less or more' - but the judge at the end decides which way the balance tilts, be it ever so slightly . . . The judge's

part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies.

If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he said that: 'Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal.' Such are our standards. They are set so high that we cannot hope to attain them all the time. In the very pursuit of justice, our keenness may outrun our sureness, and we may trip and fall. That is what has happened here.

A judge of acute perception acknowledged learning, and actuated by the best of motives, has nevertheless himself intervened so much in the conduct of the case that one of the parties - nay, each of them - has come away complaining that he was not able properly to put his case; and these complaints are, we think, justified." (Emphasis in original.) […] Upon close scrutiny of each alleged intervention of the trial judge, in the context in which it occurred, as well as upon a consideration of their combined effect, we are satisfied that they did not result in a "judicial interference amounting to prejudicial error"; see R. v.

Pavlukoff , supra. In this respect, we think it is well to keep in mind the words of Edmund Burke who said: "A judge is not placed in that high position to be the mere arbiter of parties. He has a further duty, independant of that and that duty is to ascertain the truth." The duty to ascertain the truth not only justifies but, on occasion, requires judicial intervention. [paras. 38, 40, & 46] [Emphasis added] [ 13 ] A review of the record reveals that, although the application judge frequently interfered, these interruptions did not affect the outcome of the trial.

They appear to have been made in an attempt to reduce irrelevant and repetitious cross-examination. It is apparent that the judge attempted to engage counsel for the mother and maternal grandmother in discussions for the purpose of clarifying the objective of certain lines of questioning, and to determine whether or not the questions being asked and, more importantly, whether the answers to them, were relevant to the issue to be decided by the court.

In my view, the judge intervened during three lines of questioning by counsel for the mother and the maternal grandmother, namely relating to: 1) the taking of protective care, 2) use of standards by the social workers, and 3) what the social workers thought the mother knew. [ 14 ] The judge did not limit the questioning and gave counsel, over the course of 17 days, proper opportunity to respond to his concerns. Furthermore, the judge reversed a ruling he had made respecting questions advanced by counsel for the grandmother.

This demonstrates an appropriate intention by the judge to allow the parties to fully explore their lines of questioning. [ 15 ] The judge clearly addresses the issues that counsel attempted to deal with in these three specific areas and found that they were not relevant to the determination of what was in the best interests of the children. As this Court has said many times, the best interests of the child (from a child-centred perspective) is the sole test used to determine child custody (see J.F. v. T.E. and G.E. , 2010 NBCA 14 , 354 N.B.R. (2d) 260 ).

If this had been a case in which the parties were self-represented I would not have been as concerned with the number of interventions made by the judge but, with two experienced counsel who work in the Family Division before him, a more hands-off approach would have been appropriate. Regardless, in my view, although the judge interfered more than would be advisable, he made no error in so doing. B. Credibility of the witnesses

[ 16 ] The mother and grandmother submit the judge erred in law when he made determinations during the course of the trial respecting relevancy, making such statements as “even if you at the highest demonstrated here that the Minister fraudulently deceived the mother” “– how does that bear on my decision”. The mother says that such statements by the judge indicate a lack of impartiality, and the judge erred in so asserting as he impeded the ability of her counsel to test the evidence and credibility of the Minister’s witnesses.

These statements further, according to the mother, gave the appearance that the credibility of the Minister’s key witnesses was beyond reproach. The mother says questioning the credibility of these witnesses was an essential element of her theory of the case and her position as put forth to the judge. She submits there were clear issues regarding credibility in the evidence given by them, respecting the lack of compliance with the minimum and mandatory standards, as well as in testimony concerning case plans and safety plans, for this family.

The mother says these witnesses gave contradictory evidence as to when the Minister decided she could no longer work toward reunification of the family, and to proceed with her application for guardianship. [ 17 ] The mother further submits the judge did not permit her to fully test the witnesses’ credibility on cross- examination, nor did he in his decision adequately address the credibility issues.

As a result, the decision became overly reliant upon the negative historical evidence respecting this family and lacked focus on the positive and more recent evidence of improvements made by the mother. [ 18 ] As an aside, Counsel for the mother, in her written submission, places great importance upon Minister of Social Development v.

M.A. and R.A ., 2014 NBQB 130 , 422 N.B.R. (2d) 1 , where she says a judge of the Court of Queen’s Bench, Family Division speaks to the particular care that must be taken by courts in guardianship cases, the heavy onus on the Minister, and the importance of a full and careful examination of the credibility of all witnesses. Counsel for the mother attempted to stress the importance of this decision in her oral submissions as well. A review of this “decision” indicates that the parties had settled the matter and did not complete the trial.

However, for some unexplained reason, the judge decided to publish a lengthy decision providing comments and recommendations concerning the case and the actions of employees of the Minister. Lawyers who rely on and cite this case to us should be aware it has no precedential value, since all of the comments and recommendations are in obiter dicta .

In particular, the following observation by the judge is troublesome and confusing, where comments which appear to be taken completely out of context are attributed to this Court: My unequivocal response is that in child protection hearings, where the future of the parent/child relationship is at stake, ethics must never be sacrificed in the name of the adversarial system. [para. 274] I would point out that ethics are not affected by the adversarial process; they are an integral part of it. [ 19 ] Regardless, in the case before us, a review of the record indicates to me that the judge’s comments, though not reflecting the best choice of words, were merely an attempt to illustrate a point using an extreme hypothetical.

In my view, the judge did not believe what he was saying to be reflective of the truth. Contrary to the allegations made by the mother, her counsel was permitted to conduct an in-depth cross-examination. It is clear the judge was attempting to have counsel for the mother focus on obtaining evidence from the witnesses which would assist him in determining what was in the best interests of the children.

Although counsel for the mother may have comprehended the judge’s interventions to be an attempt to deny her an opportunity to test the credibility of the witnesses, as I have said above, I interpret these interventions to be attempts to have counsel focus on what was important to the decision making process. [ 20 ] Credibility findings are to be given great deference by appellate courts. In LeBlanc v.

Fundy Drywall Ltd . and Allain , 2014 NBCA 2 , 414 N.B.R. (2d) 339 , this Court delineates: The Supreme Court has given courts of appeal clear direction with respect to their ability to interfere with credibility findings made by trial judges. In H.L. v. Canada (Attorney General ), 2005 SCC 25 , [2005] 1 S.C.R. 401 , the Court addresses the issue of appellate court deference to trial judges in assessing credibility: I find it helpful, in concluding on this point, to reproduce Professor Zuckerman's

summary of the governing principles in England: As a general principle, an appeal court must not interfere with findings of fact made by the lower court for the simple reason that the judge who saw and heard the witnesses is better placed to assess their reliability and draw inferences from their testimony. An appeal court will interfere only if it concludes that no reasonable court could have reached such conclusions, or if the lower court failed to take crucial factors into consideration.

... It follows that, if the appeal court cannot conclude that the lower court's inference from the primary facts was wrong, in the sense thatit fell outside the range of inferences that a reasonable court could make, the appeal court should allow the lower court's decision tostand. The nature of the appellate evaluation of the lower court's decision will vary in accordance with the type of judgment that thelower court was called upon to make. But whatever the nature of the issues and however wide or narrow is the room for disagreement,the test remains the same: was the lower court's decision wrong. ... A decision will be wrong if it was founded on an incorrect

interpretation of statute, or if it wrongly applied [page 423] a legal principle,or if it was based on a plainly erroneous factual conclusion. ... Put another way, as long as the lower court's conclusions represent areasonable inference from the facts, the appeal court must not interfere with its decision. (A. A. S. Zuckerman, Civil Procedure (2003), at pp. 765-68) [para. 57] (See also Baniuk v. Filliter; R. v. Weldon, 2011 NBCA 54, [2011] N.B.J. No. 199 (QL); Mills v.

Mills, 2010 NBCA 20, 356 N.B.R. (2d)351). [para. 24] [21] I, therefore, find no error respecting the judge’s determination of the credibility of the witnesses. C. Relying on historical evidence [22] In New Brunswick (Minister of Health and Community Services) v. A.R. (1998), (NB CA),198 N.B.R. (2d) 201, [1998] N.B.J. No. 142 (C.A.) (QL), this Court stated: I am of the opinion that the appellants' argument on the relevance of the testimony in previous cases is without merit.

This Court has inthe past held that this type of evidence is of relative importance although, as a general rule, it should not be determinative as such (seeNew Brunswick (Minister of Health and Community Services) v. M.R. and A.R. (supra). In the case at bar, there is sufficient evidence ofa relationship between previous testimony on the one hand and parenting skills and the best interests of the children at the criticalmoment, i.e., the time of trial on the other.

In light of this evidence, I adopt in essence, Boisvert, J.'s comments when he stated that "[i]tis absolutely unreasonable to conclude that a court can determine the parenting skills of the [appellants] without considering thebackground of their family...". [para. 20] [23] In my view, the judge did take into consideration the mother’s attempts to meet the Minister’s requirements,but he finds: More germane, counsel for the mother makes the assertion in her Pre-Trial Briefs that “in order for the best interests of the children to bemet, the evidence should be clear that the mother knew what was expected of her, and that she either accomplished or failed to meet thatwhich she knew was expected of her”.

In my view, the record amply reveals that in this long standing child protection case the motherknew and was told repeatedly what the concerns of the Minister were and what was expected of her. She knew that the children requireda caregiver who was free of dependency on illicit or illegal drugs; she knew that the children required stability in their lives; she knewthat domestic violence was of serious concern and she knew her parenting skills had been called into serious question.

Indeed, parentingdeficits became more pronounced over time. [para. 138] [24] He continues: Broadly speaking, the chronic problems encountered in addressing these concerns and satisfactorily meeting all the goals were fourfold.The first is the long-standing and deep-seated nature of the issues, only made that more complicated by the number of children and theirrespective ages. The second was the very dysfunctional on again-off again relationship between the mother and B.M. The third is themother’s psychological profile as identified by Heidi FitzGerald.

The fourth is the mercurial nature of the relationship between themother and the maternal grandmother. […] In the end, what became insurmountable for the mother was what was revealed over the years as the number of children increased andthe issues exponentially grew – the mother’s lack of capacity and ability to effectively parent over any sustained period with or withoutsupports, including with or without B.M.

The more children, the longer she abused drugs, the longer the relationship with B.M., the moreoften the extended family relationships failed, the longer instability remained a feature of her and the children’s lives, the deeper became

the abyss, out of which the mother has tried but, sadly, has been unable to climb. [paras. 139, 141] [ 25 ] In the judge’s analysis respecting the mother, he set out the definition of best interests of the child as found in s. 1 of the Act and addressed all of the criteria by applying the facts of this case to each one. In his analysis, I find no error. VI. Analysis – Grandmother A. Knowing the case against her [ 26 ] The maternal grandmother lists six grounds of appeal.

As I have already dealt with procedural fairness, social workers’ practice standards, and the credibility issue, I will move to the grandmother’s ground wherein she alleges she was unaware of the case against her. The grandmother indicates that she had been, from the outset, a respondent in the guardianship application. She initially sought custody of all five children, and then amended her application to seek custody of the two oldest children. The Minister did not consent to the application of the grandmother.

The grandmother was provided with extensive disclosure and numerous affidavits. [ 27 ] The grandmother submits that she was not given the opportunity to present her case effectively, and as such, was not provided with a fair trial. My review of the record indicates she knew the case against her and had experienced counsel to assist her. The application judge considered and weighed the evidence and in my view, demonstrated a thorough and correct assessment of it. It appears the grandmother is asking us to retry this case. Doing so is not within our scope of review. As a result, this ground must fail. B.

Insufficient evidence [ 28 ] The grandmother states the judge did not have enough evidence before him to determine her ability to parent. In the decision, the judge makes many findings of fact from the ample evidence presented during the 17-day trial regarding the grandmother’s ability to parent. The application judge specifically addresses the evidence regarding the grandmother in paragraphs 91 to 104. The following excerpts represent the more salient findings: In regard to the grandmother’s psychological profile, the aspects more directly bearing on parenting are the following: In

summary, J.C.’s overall general ability to think, reason, and solve problems falls in to the Borderline range. There were no demonstrated strengths or weaknesses between the four index scores. There are no specific areas of strength or weaknesses in J.C.’s ability to think, reason and problem solve that would negatively impact her ability to fulfill the role of a parent.

However, her overall lower cognitive functioning (5 th percentile) means that she may experience difficulty providing educational/academic support to her grandchildren, may require more time to process information, and will tend to be concrete in her thinking style.

Generally people in this range of cognitive ability are able to live and work independently and have trouble with abstract thinking and problem solving. … DIAGNOSIS (DSM-V): Personality Disorder: Obsessive-Compulsive Personality Disorder traits: J.C.’s pattern of responding on the MCMI, her self-descriptions, and observations of her in her home and interacting with others indicate that she has Obsessive Compulsive Personality traits. She tends to rigidly adhere to rules as a way of managing her emotions.

She may have such difficulty deciding which tasks take priority or what is the best way of doing a particular task that she does not get started on anything. She tends to respect and defer to individuals in positions of authority and be particularly aware of status in relationships. The other aspect of the psychologist’s report of particular relevance is the grandmother’s self-reported medical history, including long standing “lung problems”, high blood pressure, high cholesterol, and arthritis in her spine, and difficulties with her knees.

Indeed, the psychologist explained that the grandmother’s “poor health” makes it difficult for her to get up in the mornings, and observed that “her physical inability to attend to the needs of five young children at this time is apparent”. On the other hand, the grandmother in her testimony would have the Court believe otherwise; that her health would not appreciably impact on her capacity or ability to parent [K] and [K]. The weight of the evidence in the record, though, is that her health does have an impairing effect on her day to day activities.

To be sure, custody of [K] (age 11) and [K] (age 9) would not be as physically demanding as would the care of the younger three children;

nevertheless, the need to actively parent remains and the grandmother’s stamina to do so is of concern to the Court; particularly since both [K] and [K] have cognitive problems and emotional issues. The judge goes on: And, as the grandmother acknowledged, she is no longer young. To reiterate, she has a multitude of health issues, not the least of which is long standing COPD (Chronic Obstructive Pulmonary Disease) arising from asthma and bronchitis, compounded by the fact she remains a pack-a-day smoker. I have previously mentioned that the grandmother suffers from pain because of an arthritic spine.

For this she is prescribed Tylenol 4, for which she must see her doctor once a month. And, as mentioned earlier, there is a live issue about her ability to manage the pain on that prescription alone, which she has had for a long time. As well, the mother reported that the maternal grandmother had to be hospitalized overnight in July 2013 because of “severe swelling of the legs and fluid buildup”. For my own part, I have had the opportunity to observe the grandmother through the many days of this trial, regrettably stretched over several months, and most days she appeared to struggle against fatigue.

My assessment of her testimony on the issue was that she put up a brave front because of what is at stake. Even if she had the present physical capacity and ability, the years would not be reasonably expected to improve her health. H.L. was called as a witness during the grandmother’s case. She has known the grandmother and mother since 1985, as a friend and neighbor. What I take and accept from Ms. L’s evidence is that the grandmother is a well meaning and loving woman who has suffered much since she lost her own mother. However, I am unable to accept Ms. L’s evidence in other areas.

It was too painfully obvious she was doing her best to protect the grandmother and mother or did not really know or could not see or appreciate the dysfunction so evident to others. Ms. L made sweeping statements such as “Never once the kids were not loved and cared for”; “[the grandmother] does not drink or do drugs; she is always, always in control’; nothing that physically limits [the grandmother]”.

Yet, in that last regard she had also testified (in apparent explanation and as example of the unfair treatment visited upon the grandmother) that the grandmother at some point, “because of all her problems had applied for disability welfare and was refused”. When the Court asked Ms. L about that at the end of her testimony I had the unmistakable impression that she caught on quickly where that line of questioning was headed and attempted to cover over the implication of the grandmother having applied for monies based on “disability”. Another point that Ms.

L attempted to make was that the grandmother is well liked in the “North End” and that she has a community support group – “J.C. has a whole network of ladies in the North End”. If that is so, where were they through these years? Where were they in the courtroom? What type of concrete, pragmatic support could they offer? All unanswered questions. There is one more historical evidentiary piece that must be laid before more directly turning to the legal questions. The maternal grandmother had raised her own children, V.C. and Ja.C., without the help of their father.

He was not really in their lives, leaving a couple of years after the twins were born. Instead, the maternal grandmother relied heavily on her own mother and father, particularly her mother. Indeed, the evidence is that for all intents and purposes their lives were intertwined and V.C. and Ja.C. were very close to their grandparents, particularly their grandmother. And, according to J.C., life was good. “Things changed” for them when J.C.’s mother became ill. Their lives went “downhill” after she died. The girls were 13 or 14 years of age. J.C. became “very depressed” as her “mother was everything”.

Indeed, her mother was the glue that kept the family and extended family together. The girls started skipping, then stopped going to school. Ja.C. became pregnant at 15 and V.C. at 17. They both became involved in drugs. J.C. probably said it all when she testified that: “I don’t know what happened to me and my girls”. [paras. 95-101] [ 29 ] The grandmother purports the Minister submitted fraudulent affidavits during the trial. A review of the record does not reveal evidence of any fraudulent behaviour on behalf of the Minister, nor any finding of such by the application judge.

Furthermore, the allegation that the Court considered the Minister to be “above the law” is of no merit. It is very clear that in our system, it is for the court, not the Minister, to ultimately decide what is in the best interests of the children. This is exactly what was done in this case. The judge determined that the grandmother’s ability to parent was severely compromised by significant health and psychological issues. I find no error arising from that determination. C.

Views of the children [ 30 ] With respect to the children’s views, the judge gave careful and due consideration to the wishes of the children, as is evident in paragraphs 113 to 120 of the decision. The judge says: Counsel for the grandmother and mother assert that the children have not been properly or fully heard; the two oldest children especially. Indeed, counsel for the grandmother appears to take the position that this right to be heard extends, at this child protection stage, to those

children being informed of the prospect of their adoption should guardianship be granted. Counsel for the grandmother wrote in her Post Trial Brief that “the Minister has a statutory duty to ascertain the position of the children on the merits of any plan which would affect them”. [para. 113] [ 31 ] The pertinent statutory provisions of the Family Services Act provide: 6

(1) In the exercise of any authority under this Act given to any person to make a decision that affects a child, the child’s wishes, where they can be expressed and where the child is capable of understanding the nature of any choices that may be available to him, shall be given consideration in determining his interests and concerns , and the interests and concerns of the child shall be given consideration as distinct interests and concerns, separate from those of any other person. […] 6

(4) In any matter or proceeding under this Act affecting a child, whether before a court or any person having authority to make a decision that affects a child, the child has the right to be heard either on his own behalf or through his parent or another responsible spokesman. [Emphasis added] 6(1) Lorsqu’une personne a reçu autorité en application de la présente loi pour prendre une décision qui touche un enfant et qu’elle exerce cette autorité, les voeux de l’enfant, s’ils peuvent être exprimés et si l’enfant est capable de comprendre la nature d’un choix qui s’offre à lui, doivent être pris en considération pour déterminer les intérêts et préoccupations de l’enfant et elle doit prendre en considération ces intérêts et préoccupations distinctement et séparément de ceux de toute autre personne. […] 6

(4) Dans toute question ou procédure qui touche un enfant et dont une cour ou toute personne autorisée à prendre une décision qui touche un enfant est saisie en vertu de la présente loi, l’enfant a le droit d’être entendu personnellement ou par la voix de son parent ou d’un autre porte-parole responsable . [C’est moi qui souligne] [ 32 ] In the decision, the judge does give the provision clear consideration: In considering these provisions context is also important.

Asking children their views and preferences in the context of a child protection case is fraught with complexity, particularly in convoluted situations like here. Much would obviously depend on the age, level of maturity, their feelings of security, number of children, etc. To illustrate, I would pose the following rhetorical question: should [K] and [K] have been specifically told, as it appears that the mother and grandmother would have wanted, about the prospect of adoption should the Minister succeed, an adoption placement that may not later actually be found?

If so, should they also be told that one possible scenario would be that if they were put in custody of their grandmother and their mother did not recover custody of the other three, their step sister [P], who has been with them in the foster home, would be put up for adoption, along with their step-brothers? What, if any, weight could be placed on their responses? [para. 114] (See P.R.H. v.

M.E.L. , 2009 NBCA 18 , 343 N.B.R. (2d) 100, at paras. 15-17 for an overview of the role of assessors). [ 33 ] The very difficult circumstances these children find themselves in cannot be overlooked when considering the extent to which their views are explored and the weight that could be placed on those views. The judge says: In the end, it is the Court who must decide for all of the children, i.e. whether any or all will be placed in the care of the Minister. In my opinion the two oldest have been heard to the extents reasonable and the other children are much too young.

The ultimate decision for the two oldest is not their burden to carry at 9.5 and 11 years old. They cannot be permitted a choice in the context here. [para. 120] [ 34 ] Therefore, it is obvious to me that the judge did indeed take into consideration s. 1 of the Family Services Act , and did weigh the views and preferences of the children where such views and preferences could be reasonably ascertained. Therefore, there is no error allowing appellate intervention. This ground must fail. VII. Disposition

[ 35 ] After a 17-day hearing, the judge provided an 80-page decision wherein he considered all of the evidence presented. The findings of fact were supported by the evidence and his reasons disclose he considered the relevant factors in determining that it was not in the children’s best interests that they be placed in the care of the mother or grandmother. The judge also provided a detailed analysis of the criteria listed in the definition of best interests of the child from s. 1 of the Family Services Act .

The application judge applied the correct legal principles in determining the children’s best interests and made no error in law in coming to his decision. [ 36 ] I would dismiss the appeals. __________________________ KATHLEEN A. QUIGG, J.A. WE CONCUR: ____________________________ M.E.L. LARLEE, J.A. ______________________________ ALEXANDRE DESCHÊNES, J.A.