2022 NBCA 67, 2022 NBCA 67

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 112-21-CA S.M. and J.C. APPELLANTS S.M. et J.C. APPELANTS - and - - et - MINISTER OF SOCIAL DEVELOPMENT RESPONDENT MINISTRE DU DÉVELOPPEMENT SOCIAL INTIMÉE S.M. and J.C. v. Minister of Social Development, 2022 NBCA 67 CORAM: The Honourable Justice Quigg The Honourable Justice Green The Honourable Justice French S.M. et J.C. c.

Ministre du Développement social, 2022 NBCA 67 CORAM : l’honorable juge Quigg l’honorable juge Green l’honorable juge French Appeal from a decision of the Court of Queen’s Bench: September 24, 2021 Appel d’une décision de la Cour du Banc de la Reine : le 24 septembre 2021 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o. Appeal heard: November 17, 2022 Appel entendu : le 17 novembre 2022

Judgment rendered: November 24, 2022 Reasons delivered: March 9, 2023 Jugement rendu : le 24 novembre 2022 Motifs rendus : le 9 mars 2023 Reasons for judgment by: The Honourable Justice French Concurred in by: The Honourable Justice Quigg The Honourable Justice Green Counsel at hearing: For the appellants: Chelsea L. Seale For the respondent: Nancy Jane Martel Motifs de jugement : l’honorable juge French Souscrivent aux motifs : l’honorable juge Quigg l’honorable juge Green Avocats à l’audience : Pour les appelants : Chelsea L.

Seale Pour l’intimée : Nancy Jane Martel THE COURT On November 24, 2022, the appeal was dismissed with reasons to follow. These are the reasons for decision. LA COUR L’appel a été rejeté le 24 novembre 2022, avec motifs à suivre. Voici ces motifs. The following is the judgment delivered by FRENCH J.A. I. Introduction [ 1 ] A judge of the Family Division of the Court of Queen’s Bench, as it then was, ordered guardianship of two children be transferred to the Minister of Social Development on a permanent basis. Our Court dismissed the parents’ appeal of that decision on November 24, 2022, with reasons to follow.

These are those reasons. [ 2 ] The Minister’s initial involvement with the family began shortly after their daughter was born, in 2009, and it increased after the birth of their son, in 2014. By February 2017, the children were consistently under custody or

supervisory orders in favour of the Minister. In February 2019, immediate concerns regarding their safety prompted the Minister to take both children into protective care and, ultimately, to apply for guardianship. [ 3 ] Following a ten-day trial, during which 18 individuals testified, the judge rendered a 94-page decision that set out in considerable detail the evidence, the parties’ positions, and her findings. She accepted that the parents are in a committed, supportive, and long-term relationship of more than 20 years.

She also acknowledged their ability to parent is not impaired by addictions, they have maintained a permanent, non-transient home, and they have the support of family. However, the judge concluded the evidence substantiated the Minister’s long-held concerns over neglect and the security and development of the children. Deciding it was in their best interests, she transferred guardianship to the Minister and reserved the children’s right of access to their parents and paternal grandmother.

The right of access was ordered to be exercised in the discretion of the Minister, in accordance with the children’s best interests. [ 4 ] The parents advance three grounds of appeal. They contend the application judge erred:

i) in law, in that there was insufficient evidence to support her decision to grant guardianship; ii) in principle, by failing to consider the children’s individual best interests, contrary to the

preamble and s. 6 of the Family Services Act , S.N.B. 1980, c. F-2.2 (the “ Act ”); and iii) in making a post-guardianship order for access that is too vague to be either meaningful or enforceable . [ 5 ] The order of the grounds listed above is the reverse of that in the Supplementary Notice of Appeal.

I have chosen to address them in this order to align with the parents’ submission that: (1) there was insufficient evidence to establish it was in their children’s best interests to transfer guardianship; (2) even if the evidence justified guardianship in relation to their son (which they do not admit), the evidence indicates they can provide adequate care for their daughter; and (3) the rejection of their request for a prescribed access

schedule post-guardianship, and leaving access to the discretion of the Minister, has resulted in an access order that is meaningless and unenforceable. II. Standard of Review [ 6 ] It must be emphasized, including to the parents, that an appeal is not a retrial.

The law neither tasks nor permits a court of appeal to consider the evidence introduced before a trial judge and make a different decision, even where it might have come to a different conclusion; a decision can be overturned on appeal only where there has been an error in law or principle, or there has been a palpable and overriding error with respect to the evidence. As stated in M.V. and C.H. v. Minister of Social Development , 2021 NBCA 42 , [2021] N.B.J.

No. 234 (QL): The standard of review in child protection cases is narrow and one of deference unless it is clear there was an error in the application of a legal principle, the judge made a palpable and overriding error in the appreciation of the facts of the case, or the reasons were insufficient: S.H. and M.D. v. The Minister of Social Development , 2014 NBCA 20 , 419 N.B.R. (2d) 377, at para. 4 . In Van de Perre v.

Edwards , 2001 SCC 60 , [2001] 2 S.C.R. 1014, Bastarache J. reiterated that the standard of review in custody cases is one of deference unless it is determined there has been a material error, a serious misapprehension of the evidence, or an error of law (para. 11). [para. 6] III. Analysis A. Insufficient evidence to support a guardianship order [ 7 ] The contention that the evidence is insufficient to justify guardianship is not rooted in the identification of a palpable and overriding error in the application judge’s assessment of the evidence, or a misapprehension of the evidence.

It is advanced in tandem with the submission that the evidence establishes the parents met the expectations under the various case plans developed by the Minister, and they maintained a routine for their children, provided them with adequate, nutritious meals, followed doctors’ recommendations regarding their care, and maintained a home that, while not perfect, was safe. The parents assert the

Minister’s intervention was driven by relatively minor concerns over the state of their home and a dislike of their parenting style. [ 8 ] The assertions made under this ground of appeal closely resemble the parents’ closing arguments before the judge.

Significantly, they run contrary to the express findings made by the judge. [ 9 ] In the absence of a palpable error and overriding error, at best, this ground of appeal asserts it was not open to the judge to decide that, on the evidence accepted by her, the Minister established on a balance of probabilities guardianship was in the children’s best interests, and/or the judge improperly weighed the accepted evidence. Neither is connected to the judge’s consideration of the accepted facts. [ 10 ] The evidentiary record before the judge was considerable and it is thoroughly summarized in her 94-page decision.

While setting out an exhaustive

summary of the record is not warranted to dispose of this appeal, an overview of the Minister’s involvement with the parents, the parties’ positions and the live issues decided by the judge is helpful to an understanding of my reasons for rejecting the parents’ contention the evidence was insufficient to justify a guardianship order. [ 11 ] Although the Minister’s involvement with the family began when the daughter was born in 2009, the evidence at trial focussed primarily on the Minister’s active involvement in the five years prior to taking protective care of the children in 2019 and the 27 months that followed, until the trial occurred. [ 12 ] In October 2013, when the daughter was four, continuing concerns regarding the environment in the parents’ home prompted the Minister to arrange for the family to participate in a family enhancement program.

The birth of their son, in March 2014, added to the parental duties. He required surgery for an imperforate anus. While the surgery was successful, he required careful ongoing management of his diet and toileting. He would later be diagnosed as being autistic. The daughter was prescribed medication for ADHD and asthma. [ 13 ] Added to the Minister’s persistent concerns regarding the state of the parents’ home, the children’s hygiene and the parents’ mental health, concerns arose regarding their son’s health, including his struggle with low weight and low energy.

At a family group conference arranged by the Minister in March 2016, the plan developed to assist the parents included receiving assistance from extended family, in addition to the family support workers and homemaker who were provided by the Minister. [ 14 ] Unfortunately, these interventions did not alleviate the Minister’s concerns over care in the home. According to the Minister, the parents were unable to establish a structure or routine for the children. Permanency planning meetings were held in September and December 2016.

The parents agreed to continue to work with the Minister and to meet regularly with their son’s pediatrician and follow advice in relation to his low weight. [ 15 ] In January 2017, concerns about the son’s low weight, pallor and lack of energy led his pediatrician to have him admitted to the hospital, in part, to monitor his food intake. Additionally, it was decided the daughter (then seven) would reside with her paternal grandmother. [ 16 ] The son’s weight increased, and his overall condition improved.

In February 2017, he was discharged from the hospital; however, the Minister was not confident the parents could meet his needs, and he was released to the care of his grandmother. [ 17 ] Having the care of both children at her home proved to be too much for the grandmother and, a few weeks later, the Minister took the son into protective care.

The daughter remained with her grandmother. [ 18 ] The concerns identified by the Minister at a permanency planning meeting on May 26, 2017, included the parents’ eviction from their home due to its poor state, the mother’s refusal to engage in mental health counselling, the parents’ lack of engagement with the children during access, and their inability to recognize the existence or impact of any of these persistent concerns. It was agreed the parents would work toward sorting out the state of their home and, to assist the mother, a referral was made to Mental Health.

In the meantime, their daughter continued to live with her grandmother and their son remained in the Minister’s care.

[ 19 ] On June 16, 2017, the daughter returned to the parents’ home, under a Supervisory Order. The son remained in the care of the Minister. [ 20 ] In August 2017, the Minister believed the parents’ progress on the case plan was inadequate and their son’s physical and mental needs prevented him from returning to their home, even with a Supervisory Order.

The Minister applied for extensions of the custody order regarding the son and the Supervisory Order for the daughter. [ 21 ] On November 30, 2017, the Minister transitioned the son to his parents’ home under a Supervisory Order. [ 22 ] The environment in the parents’ home deteriorated over the next three months, and again the son’s weight declined. On February 23, 2018, the Minister took him into care for a second time.

The daughter remained at home under a Supervisory Order. [ 23 ] After a further period of extensive involvement and support from the Minister, by the summer of 2018, some progress was recognized and, in September 2018, the son was returned to his parents’ home under a Supervisory Order. At this point, both children were in the care of their parents under Supervisory Orders.

The September 2018 Supervisory Order contained a significant number of detailed conditions respecting the care of the children and the state of the home. [ 24 ] Despite the recent progress and the parents’ agreement to abide by the conditions of the Supervisory Order, the Minister continued to be concerned about the prospect of a deterioration in relation to all areas of concern once intensive support from the Minister reduced.

This period of family reunification would continue for almost five months. [ 25 ] On February 22, 2019, the Minister took protective care of both children. [ 26 ] In the weeks prior to doing so, the Minister had become very concerned about the parents’ struggles to meet the case plan and the terms of the Supervisory Order. The daughter’s school notified the Minister that the daughter told a teacher she had not been looked after while at home with the flu and her parents just played video games all day.

The school also reported the daughter’s hygiene had declined and she complained of being hungry and having a sore belly. Additionally, the Minister learned of the son having missed appointments for services related to his autism and his weight loss. This period also led to increased concerns over the mother’s mental health and her related excessive sleep patterns. The Minister’s contact with the mother’s family physician exacerbated concerns over the son’s weight loss and the condition of the home aggravating the daughter’s asthma. Further, a meeting with the son’s pediatrician elevated concerns about his care.

Although the son was almost five years old at the time, a witness testified that he appeared at the time to be a child of no more than two years of age. [ 27 ] The Notice of Protective Care identified the following concerns of neglect: Parents inability or unwillingness to place the Children’s needs as a priority, as demonstrated by: Physical Neglect : condition of the home (example: safety concerns, large amounts of clutter, no clear eating space,) children’s hygiene, inadequate food provisions for both children (moldy food to school, complaints of being hungry at school) and no routine in the home.

Medical Neglect : Parents inability or unwillingness to follow medical direction for their son’s care (example: set and regular meal times, balanced meals, following doctor’s recommendations for treatment of constipation), who presents with significant needs (no weight gain in the past year) Attempts to address these concerns by the Minister, service providers and medical professionals have been unsuccessful. [para. 47]

[ 28 ] The Minister’s Notice of Application, dated March 1, 2019, requested an order (1) that there were reasonable grounds for placing the children in protective care, and (2) transferring guardianship on a permanent basis, on the grounds that the children’s security and development were endangered because:

a) the children were without adequate care, supervision, or control;

b) they were living in unfit or improper circumstances;

c) their parents were unable or unwilling to provide adequate care, supervision or control of them;

d) their parents’ conduct endangered their lives, health or emotional well-being; and

e) their parents neglected or refused to provide or obtain for them the proper medical care or treatment necessary for their health and well-being. [ 29 ] The parents initially opposed the taking of protective care; however, at a hearing held on May 9, 2019, they consented to the taking of protective care and opposed the children remaining in the care of the Minister pending the outcome of the application for guardianship. The hearing proceeded on that issue. The judge ordered the children remain in the care of the Minister until the trial of the application (see Minister of Social Development v.

S.M. and J.C ., 2019 NBQB 95 , [2019] N.B.J. No. 181 (QL)). [ 30 ] At trial, the Minister called 14 witnesses and relied on 16 affidavits. The parents called two witnesses, in addition to offering their own testimony, and relied on five affidavits. The evidence also included the testimony of, and two Voice of the Child Reports by, a clinical psychologist with respect to the views of the daughter. The first report was completed in September 2020, the second, in April 2021.

The parents’ viva voce evidence sought to explain the circumstances leading up to the Minister taking protective care of the children and generally challenge the evidence introduced by the Minister, including the Voice of the Child evidence. [ 31 ] The judge stated the following in relation to her findings regarding the taking of the children into protective care, in February 2019, and the subsequent 27 months, to the trial in May 2021: […] The Minister’s concerns were long standing at the time protective care was taken and had remained virtually unchanged for many years despite repeated attempts to address the issues with significant resources and legal interventions.

Previous custody and supervisory orders had been unsuccessful in precipitating the changes necessary for these parents to meet the Children’s needs and provide a safe and secure environment for them to thrive in. The evidence for that period in my view, clearly establishes three things: the Children’s basic needs were not being met, [the son] was not thriving, and the Respondents were not acknowledging that their Children were being neglected . In my view, the evidence tendered for the months prior to the taking of protective care establishes clear neglect .

The Respondent’s resistance to change and their inability to recognize and accept the issues they face, has been a significant and continued impediment to this family moving forward without ministerial intervention. Unfortunately, this resistance has continued over the course of the last 27 months. I am persuaded it has been the main obstacle to reunification. Collectively, the evidence presented by all parties satisfies me the Respondents still do not acknowledge or accept that the concerns identified by the Minister are real and negatively impact their Children’s wellbeing.

This perspective makes genuine progress illusive. [Emphasis added; paras. 426-430] [ 32 ] In her assessment of the evidence related to the issue of the parents’ ability to meet “their children’s needs over the longer term,” the judge rejected the parents’ argument that they followed the Minister’s case plan and made satisfactory progress during the 27 months the children were in care prior to trial; this was a submission the parents repeated on appeal:

In this instance, the Court’s concern remains the “the broader risk that the parents will be unable to see to their children’s need over the longer term.” While it is acknowledged that in the last few months before trial the Respondents were able to start introducing some basic structure into their home (under the watchful eye of the Minister), it falls far short of persuading me that they will be able to independently meet their Children’s needs over the long term. I agree with the Minister that you can not change what you do not acknowledge.

The Respondent’s failure to accept that things need to change is the reason the Ministers intervention has been required for so many years. It is also the reason marginal progress was only noted at the 22 month mark of protective care. The Respondents remain unwavering in their belief that the Minister’s interventions have not been necessary. In her testimony S.M. was clear that she does not accept the circumstances that led to the taking of protective care in 2017, 2018 or 2019. She remains steadfast in the position that there has never been neglect.

Rather, in her view, her battle with the Minister boils down to a “difference in parenting styles”. […] The Respondent have, despite compliance with parenting sessions, counseling and a routine for visits prescribed by the Minister, continued to dispute the legitimacy of the Minister’s concerns throughout the period of protective care. As a result, they have not made the changes necessary to address the issues that underly the neglect that resulted. Interventions such as family support, parenting sessions and counseling for S.M. were unsuccessful in bringing about a change in perspective or approach.

As a result, they have not been able to establish over the period of the last 27 months that they have progressed to a place where they can consistently, without prompts and cues meet the Children’s basic needs. The evidence of both Ms. Roberts and Ms. Buckley in my view supports this. While Ms. Buckley’s evidence was less detailed and in general terms was more favorable to the Respondents, her evidence also indicates the need for continued prompts and cues. The family plan was also ineffective in bringing about progress.

In large part this stems in my view from the fact the Respondents were never truly in favor of the concept. S.M. in her evidence attempted to lay blame at the feet of the Minister for not clearly communicating expectations surrounding the family plan. The evidence simply doesn’t support this. I am satisfied that the Minister’s expectations with respect to the family plan were clearly communicated both to the Respondent’s and to N.C. by way of the Visit Expectation document. It was reviewed several times with the Respondents and N.C. By her own admission, S.M. did not pay attention to the details in the document.

In my view this is indicative of her resistance to genuinely engage in anything that took aim at or questioned her parenting skills. The Respondents did not in my view, in good faith embrace the concept of having N.C. take on the role of a primary care provider of their Children. N.C. was attuned to this and she raised the issue with Ms. Hierlihy. I accept the evidence of Ms. Hierlihy that N.C. felt uncomfortable prompting the Respondents.

On balance, in my view, the fami1y was not successful and the evidence suggests that in some respects things in fact started to decline. [Emphasis added; paras. 438-440, 454-459] [ 33 ] The judge also made findings regarding the parents’ ability to meet the mental, emotional and physical health needs of the children and provide a secure environment that would permit them to become useful and productive members of society through the achievement of their full potential according to their individual capacity: The Respondent’s ability to meet the Children’s physical, emotional and mental needs and provide a safe and secure environment is central to the analysis in this case.

The condition of the Respondents home has warranted the Minister’s intervention as far back 2009. For the reasons already stated, the evidence presented satisfies me that the home remains in a condition that in

my view is not suitable to meet the physical emotional and mental needs of the Children or to provide them a secure environment. Marginal gains made at the onset of the family plan in the fall of 2020 started to dissipate as early as December 2020. Those gains were never consistently maintained. The photographic evidence along with the corroborating evidence of Ms.

Hierlihy, and both family support workers in the home during this time period establishes, without question that the home continues to present clutter that prevents clear pathways between rooms, multiple cords remain in the living room area and present a tripping hazard, the Children’s rooms do not consistently remain free of clutter and appear to become a dumping ground for items around the home. There were instances where there is not a clear pathway from their bed to the door.

The floors in the home, the bathroom and the kitchen did not present in my view as consistently demonstrating an appropriate standard of cleanliness. […] The evidence also establishes that the laundry simply isn’t being done with any degree of regularity. Dirty towels and face clothes remain in the sink for weeks or longer and there are often not clean linens or towels for the Children. [the son’s] underwear continues to be returned to the foster placement with dried feces on it. If the Children were residing in the home fulltime, their clothes would not be routinely laundered.

Hygiene or the lack thereof was an issue that caused [the daughter] distress and anxiety in the months leading up to the taking of protective care. She faced comments at school. The evidence does not persuade me that the Respondents would be able to meet the Children’s need for basic hygiene if they were returned to their fulltime care.

I am further persuaded that the Respondents throughout the period of care have failed to demonstrate they appreciate the ongoing need for [the son] to have structure and routine in his environment both for the purposes of his ASD diagnosis and to ensure he continues on his current growth curve. […] I am not confident that the Respondents will exercise the supervision and vigilance needed to ensure [the son’s] constipation, nutrition and ultimately continued growth will be maintained. [The mother and father] have been historically reluctant to follow Dr.

Nicholson’s recommendations and the evidence did not satisfy me that reluctance has changed throughout the period of care. In her viva voce evidence [the mother] specifically stated her belief that [the son] does not require the structured environment Dr. Nicholson recommended, based on her own research related to his ASD diagnosis The Respondents argue that their financial situation has impacted their ability to provide balanced meals for the Children. [The mother] has indicated that she finds it stressful that she cannot feed the Children the way the Minister wants her to as a result of her “limited resources”.

I do not accept this argument. Family support workers Tammy Zigante and Bliss Roberts prepared budgets, and balanced meal plans that could be accommodated by those budgets. They even went so far as to go grocery shopping with them. They simply were not able or refused to implement those meal plans. Further there were several instances in the evidence where it was clear the Respondents had the funds to purchase the groceries necessary for balanced meals, however they made the “choice” to spend the money on other non-essential items. [The son] will require follow up at the IWK.

His next appointment is in November of this year. Again, I am not confident the Respondents will get him to that appointment. They missed the last IWK appointment scheduled for [the son]. The Minister encouraged them to attend. The reasons provided in the evidence for not attending were not in my view credible and displayed a lack of commitment in meeting [the son’s] needs. [The mother] throughout the period of care has repeatedly defaulted to various health related restrictions for not following through on many aspects of the Children’s needs.

Most of these ailments were not substantiated in the evidence and in my view are “excuses” used to justify not doing something she does not want to do, such as cleaning the home.

[The daughter] has had a very strong voice in these proceedings, albeit through the evidence of others. She has disclosed that in part her reasons for not wanting to return to her parent’s care was because “nothing has changed”. A constant theme was present in her disclosure to the witness who testified, namely her parent’s preoccupation with video games and computers.

It is first noted in the evidence in January 2019 when she told her teacher she had not been cared for by her parents despite being quite ill, “because they were playing video games.” She disclosed to several of the Ministers witnesses that this preoccupation with electronics results a failure to engage with she and [the son]. 1 am also cognizant of the photographic evidence of the home that was submitted into evidence. The photos span a period of several months and depict [the mother] sitting on the couch, in the exact same position with her keyboard and video controls in many of the photographs.

Accordingly, I do not accept [the mother’s] evidence that she only plays video games when the Children are in bed. In my view this “preoccupation” is central to the Respondents inability to keep the home maintained and adequately respond to the Children’s needs. The evidence presented further satisfies me that [the mother], although having no formal mental health diagnosis struggles with emotions and behaviors that impact her ability to meet the Children’s needs.

I am satisfied that while she has made some progress in dealing with grief and the loss of her mother, she has not progressed in other areas. […] [The mother] argues she does not have mental health issues that impact her ability to parent. I disagree. The evidence in my view establishes significant anxieties that prevent her from parenting and meeting the Children’s emotional and physical needs. The Respondents have had limited success with the interventions offered to date by the Minister. They continue to deny the issues underlying the resulting neglect that has plagued this family for many years.

As a result, I am not confident that they are able to meet the Children’s physical, mental and emotional needs going forward or provide the secure environment necessary for them to meet their full potential.

Accordingly, I find that for the purpose of these two components of the best interest analysis, a guardianship order is preferable to reunification. [Emphasis added; paras. 461-481] [ 34 ] In the end, the judge concluded: Regrettably, based on the reasons set out, I am not satisfied that the Minister’s interventions over the period of care or the attempted family plan, have resulted in the changes necessary to ensure neglect will not follow reunification, even with the benefit of a supervisory order. In 2018 when [the son] was reunified a very detailed supervisory order followed.

It was in place for only 5 months when protective care was ultimately required. For the reasons set out, the change necessary to satisfy me that things would be different this time around, simply has not occurred.

Accordingly, based upon the significant record of evidence established before me, the arguments presented by counsel and most importantly taking into consideration the criteria set out in applicable paragraphs of the definition of the bests interest of the child under the Act , I find that the Minister has established it is more probable than not that the best interests of the Children requires a guardianship order issue pursuant to section 56(1) of the Act . Further, I do not find this is a situation where a supervisory order is appropriate.

The Children are entitled to certainty going forward and the stability, security and continuity of care that a guardianship order will ultimately provide them. [paras. 512-514] [ 35 ] The judge’s factual findings and analysis include consideration of the daughter’s views and preferences in addition to that contained in the passages reproduced above. More will be said about this below, where I address the parents’ submission that the judge did not consider the best interests of the children separately.

[ 36 ] As explained above, no palpable error in the judge’s assessment of the evidence was identified by the parents, and no such error is apparent to me, let alone an error that is overriding. Lastly, I do not accept the evidentiary record was insufficient to order guardianship. There is simply no merit to the assertion the facts found by the judge were incapable of supporting her determination that guardianship was in the children’s best interests. In the absence of a reversible error on the part of the judge, her decision cannot be interfered with on appeal. B.

Failure to consider the children’s individual best interests [ 37 ] The parents maintain the application judge erred in principle by failing to consider the children’s individual best interests, contrary to the

preamble and s. 6 of the Family Services Act . [ 38 ] The part of the

preamble relied upon states: WHEREAS it is recognized that the basic rights and fundamental freedoms of children and their families include a right to the least invasion of privacy and interference with freedom that is compatible with their own interests and those of their families and of society[.] [Emphasis added.] ATTENDU que le droit des enfants et de leurs familles à ne subir que le minimum d’intrusion dans leur vie privée et d’entrave à leur liberté qui soient compatibles avec leurs propres intérêts , ceux de leurs familles et ceux de la société, fait

partie des droits essentiels et des libertés fondamentales reconnus aux enfants et à leurs familles[.] [Les caractères gras et le soulignement sont de moi.] [ 39 ] Where a child can express his or her wishes, s. 6(1) requires they be considered in determining the child’s interests and concerns when making a decision in relation to the child. It further requires the child’s interests and concerns be considered “as distinct interests and concerns, separate from those of any other person.” The parents submit that it is in relation to this obligation that the judge erred.

The provision states: Consideration of wishes of child 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 . [Emphasis added.] Prise en considération des vœux de l’enfant 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 vœux 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 . [Les caractères gras et le soulignement sont de moi.] [ 40 ] The parents maintain that, since much of the evidence considered by the application judge focussed on their son’s unique and complex health needs, it was reasonable for them to conclude the judge would have ordered different outcomes for their children.

They argue the evidence does not indicate they are unable to provide adequate day-to-day care for their daughter and she ought to have been returned to their care under a Supervisory Order .

[ 41 ] In my opinion, this ground of appeal is founded upon a mischaracterization of the judge’s decision. It contends the judge did not consider the daughter’s interests and concerns, or her best interests , distinct from those of her brother.

Undoubtedly, consistent with a focus of the evidence led at trial, the judge’s reasons for decision address, in some detail, the health of the son and the challenges it posed for the parents; however, it is simply not possible to conclude the judge did not separately consider the daughter’s interests and concerns, or her best interests, in deciding to transfer guardianship of both children to the Minister. [ 42 ] In relation to the factors relevant to an assessment of the best interests of the child, the judge expressly set out her consideration of the views and preferences of the daughter: The significant evidence relating to the views and preferences of [the daughter] has been fully canvassed and I will not repeat it .

In

summary, I believe [the daughter] wishes to remain in the Minister’s care. That has been her position since the early months of 2021. On more than one occasion she has articulated the position that “she would like to remain with her foster parents but still maintain contact with her parents.” Ultimately, I believe that is her preference. She expressed this sentiment to Ms. Munn, Ms. Richards and Ms. Hierlihy. I have no doubt that she loves her parents and is concerned always about their feelings.

However, in my view her voice is clear, she feels safe and less responsible for ensuring that her needs and her brothers are being met when she is in the care of her foster family . Recently, when [the son] attended a visit that she did not, she was very concerned about whether he made it to school and what he had to eat. This was a palpable concern for her, and in my view, points to the reality that she was parentified before the taking of protective care . Further, she indicated to Dr.

Nicholson in May of this year that she “experiences anxieties while in the care of her parents that she doesn’t in the foster care placement ” . Based on the totality of the evidence presented I believe those anxieties revolve around the manner of [the mother’s] engagement with the Children (her tendency to at times become emotional and heightened) and her concern over whether her and [the son’s] needs will be met. It is acknowledged that she became conflicted when faced with the realities of adoption, but on balance I am not of the view that this has swayed her preference.

Accordingly, I am persuaded based on the totality of the evidence that [the daughter] wishes to remain in the Minister’s care and maintain a level of contact with her parents and her grandmother. [The son] is not of sufficient age for me to evaluate his views and preferences. [Emphasis added; paras. 482-486] [ 43 ] In relation to the other factors relevant to the best interests of the child assessment, the judge also discretely considered the circumstances of the daughter.

She noted, for example, that, since the daughter has been in care, she has not required medication for ADHD or her asthma. [ 44 ] With respect, I find no merit to this ground of appeal. C.

The order for access post-guardianship is too vague and is meaningless [ 45 ] The order provides that the children’s right of access to their parents and paternal grandmother “is preserved.” The right is “to be exercised at the discretion of the Minister and in accordance with the best interests of the Children.” [ 46 ] In her reasons for decision, the application judge noted the exceptionality of reserving a child’s right of access to a parent on a transfer of guardianship to the Minister and correctly explained that such an order “may be warranted if it is found to be in the best interest of the Children.” The judge found the “bonds of attachment between the Children and [their parents and grandmother] are notable,” and she concluded that, since guardianship will be disruptive, a “certain measure of continuity may be achieved if they can continue to maintain a connection with their parents and [their grandmother].” The Minister supported the preservation of the children’s right of access, provided the order doing so did not specify the terms of access and left that to the Minister. [ 47 ] The parents maintain that, despite having decided it was in the children’s best interests to

preserve their right of post-guardianship access, the judge failed to specify the access and, instead, erroneously delegated her duty to determine the nature and frequency of the access ordered. At a minimum, they submit the order is so vague it confers a right in a manner that is neither meaningful nor enforceable.

(1) Ontario jurisprudence and legislation [ 48 ] The parents rely on jurisprudence that found it is an error of law to “delegate” the discretion to determine the terms of court-ordered access. In J.S.R. v. Children’s Aid Society of Ottawa , 2021 ONSC 630 , [2021] O.J.

No. 369 (QL), the court unanimously decided the trial judge erred in law by delegating to the Society all decisions regarding the type, frequency and duration of the children’s access to their mother (and their older sibling and grandmother) under the order that placed the children in the extended care of the Society (similar to guardianship under the Act ). [ 49 ] The parents submit the rationale in such decisions is persuasive despite the fact they recognize they are based upon the

interpretation of Ontario legislation relating to placing children in extended care (similar to guardianship), which is substantially different from the provisions of the Act respecting guardianship .

They also acknowledge these cases reflect only one line of jurisprudence, which has been described as divided on the issue. [ 50 ] Although the legislative differences alone are indeed sufficient to distinguish the application of the Ontario jurisprudence, the analysis in those decisions highlights the significance of the distinction between: (1) a court order for guardianship that reserves a child’s right of access based on the court having determined that doing so was in the child’s best interests; and (2) the Minister’s statutory authority, independent of an access order, to permit a child in care to have access to a parent or another person.

Not surprisingly, the interpretative analysis undertaken in J.S.R. v.

Children’s Aid Society of Ottawa included the view that, given the statutory authority of the Society to facilitate access where it believed contact would be in a child’s best interests (in the absence of a court order), the statutory authority permitting a court to order access is intended to do more than merely echo the discretion conferred by the legislation on the Society. [ 51 ] Unlike the Act, which does not expressly provide a court with the authority to reserve a right of access when making a guardianship order, the Ontario legislation expressly provides the authority to order access when making an extended care order .

However, I pause to note that, almost 40 years ago, this Court found the Act implicitly conferred this authority. This will be addressed further below. [ 52 ] Additionally, in conferring the authority to reserve a child’s right of access when making an extended care order, the Ontario legislation specifies the factors a court must consider when deciding whether to do so. In its reasons for decision, the Ontario Superior Court of Justice in J.S.R. v. Children’s Aid Society of Ottawa explained:

Section 104 of the [ Child, Youth and Family Services Act, 2017 ] provides the court with jurisdiction to determine access in the child's best interests. Section 104(1) provides that the court may “make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.”

Section 104 makes it clear that it is the court that makes an order respecting access, and it is the court that is to impose terms and conditions “as the court considers appropriate.” [Emphasis added; para. 38] [ 53 ] The court’s

interpretation flowed from its consideration of s. 104 in the context of s. 105.

This latter provision states that an o rder placing a child in the extended care of the Society terminates any prior access order and that, once an extended care order is made, a court is prohibited from making an order for access in relation to a child in the extended care of the Society “unless the court is satisfied that the order or variation would be in the child’s best interests.” Before making such an access order, the court must consider whether the relationship is “beneficial and meaningful to the child” and whether “the ordered access will impair the child’s future opportunities for adoption.” Any access order must identify all persons who are granted a right of access or to whom access has been granted.

The legislation also expressly requires a court terminate any access order where it is no longer in the child’s best interests. [ 54 ] The court’s interpretative analysis included contrasting court-ordered access under s. 104, with the Society’s authority under s. 105(9) to facilitate a child’s access, where, in the absence of court-ordered access, the Society believes such contact would be in the best interests of a child in extended care.

The court reasoned that, since the Society could permit access at its discretion absent a court order, an order for access made by a court under s. 104 was to do more and was not intended to similarly leave ordered access to the discretion of the Society.

[55] Addressing the two lines of jurisprudence that developed in relation to whether a court could“delegate all aspects of that access – including all decisions about type, frequency, and duration – to the Society,” the court, in Children’sAid Society of Ottawa, stated: Having found that the access orders made in favour of the mother and sister were, indeed, in the best interests of the child, can the courtdelegate all aspects of that access – including all decisions about type, frequency, and duration – to the Society?

There are twostreams of jurisprudence that have evolved on ordering access at the discretion of a Society, thoroughly reviewed by Harper, J. in C.A.Sv. K.D.D., 2020 ONSC 511. The first stream of jurisprudence finds that it is an error in law for a court to delegate a child’s accessrights at the discretion of a Society. At paras. 45 and 46, Harper, J., stated: [45] I am of the view that a court cannot and should not delegate its exercise of discretion when ordering access. It is the court thatmust balance and evaluate the evidence within the consideration of the factors set out in the statute.

Expediency cannot overridesuch considerations. [46] I am also of the view that in certain circumstances, after the court has made the determination that access is appropriate, it may benecessary to set out certain parameters and guidelines to a party who may be placed in a position of having to facilitate thataccess given the unique circumstances of each case that is presented a court.

Several other judges of the Superior Court and Ontario Court of Justice have refused to grant requests by a Society that access would beat the discretion of the Society because such an order would improperly delegate the jurisdiction of the court to make an order for access:Children’s Aid Society of Toronto v. N.N., 2017 ONCJ 827; Children’s Aid Society of Toronto v. D.P., [2005] O.J. No. 930 (S.C.J.);Children’s Aid Society of Toronto v. B.O., (ON CJ), [2003] O.J. No. 4247 (O.C.J.), at paras. 46-48; Children’s AidSociety v. C.B., [2007] O.J.

No. 3573 (O.C.J.), at paras. 53-55; and Children’s Aid Society of London and Middlesex v. C.(G.), [Emphasis added; para. 42-43] [56] In concluding it was an error in law to delegate all decisions on the type, frequency and durationof the children’s access, the court explained:

Section 104 of the CYFSA makes it clear that it is the court’s obligation to impose the terms and conditions of an access order. This is adiscretionary decision. Nothing in the language of sections 104 or 105 of the CYFSA either explicitly or implicitly includes the power tosub-delegate the decision as to terms or conditions of access to a nonjudicial actor such as a Society. In fact, the language of

section 105[(9)] implies the opposite. That

section provides that: “If a society believes that contact orcommunication between a person and a child who is in extended society care under an order made under paragraph 3 of subsection 101(1) or clause 116 (1) (

c) is in the best interests of the child and no ...access order is in effect with respect to the person and the child, thesociety may permit contact or communication between the person and the child” (emphasis added). Without an access order in effect, aSociety has discretion about contact and communication. But there is now an access order with no terms. This contradicts thestatutory provision, which reserves Society discretion to situations in which there is no access order in effect.

A judicial decision that delegates the discretionary elements of access including type, frequency, and duration to a Societyoffends the principle against sub-delegation: A.G. of Canada v. Brent, (SCC), [1956] SCR 318 at 321. It is a decision todelegate discretionary adjudicative authority to a nonjudicial actor where the power is statutorily reserved to a judicial decision-maker.We adopt the comments of Goodman, J. with respect to a previous version of the statute: Children’s Aid Society of Toronto v. P.(D.), 2005 CarswellOnt 922, [2005] O.J.

No. 930 (S.C.J.) at para. 40, rev’d on other grounds, Children’s Aid Society of Toronto v. D.P., (ON CA): Yet, I do find it difficult to accept that the legislature ever intended to leave decisions regarding access to children in the hands ofone of the litigants, itself, particularly where children have no right of access to their parents unless an order for access is madeunder

Part III...While I can certainly understand some of the reasons why it would be efficient, time–and or cost-wise to delegate accessissues to the CAS, children and their parents have a right, in my view, to have decisions in respect of access made in an objective andneutral manner. One would expect that it would be rare, if ever, that legislation would authorize a court to delegate its judicial functionsto any third party who/which is a party to the litigation, when neutrality and objectivity are so vital to the decision-making process.

Inmy view, simply put and at least on a final basis, the CFSA does not permit, either expressly or by implication, the court todelegate its authority to make orders in respect of access under

section 58 to any person or entity, including the CAS.

[Some emphasis mine; paras. 49 -51]

(2) The Act and New Brunswick jurisprudence [57] Although not as plainly as the Ontario legislation, the Minister is authorized, in the absence of acourt order, to permit a child in care to have access to a parent/person where such contact would be in the best interests of the child. TheAct requires the Minister to provide care that meets the emotional needs of a child in care under a guardianship order (s. 45(3) ands.56(2)) and “the Minister may return the child to the former parent periodically, as the Minister considers appropriate” (s. 56(3)).

Aswas emphasized in Children’s Aid Society of Ottawa, court ordered access is intended, not only legislatively in Ontario but, in myopinion, practically, to do more than reflect the Minister’s statutory authority to permit a child in care to have contact with aparent/person where it is felt such access is in the child’s best interests. [58] As noted, unlike the legislation of Ontario and that of some other provinces, the Act does notexpressly confer the authority to order access when transferring guardianship to the Minister under s. 56; however, this Court concludedthere was an implicit authority to do so in M.A.G., Re. (1986), (NB CA), 73 N.B.R. (2d) 443, [1986] N.B.J.

No. 126(QL) (C.A.). In this case, the Minister maintained on appeal that the trial judge erred by reserving a child’s right of access to a parent inconnection with a guardianship order.

Although the Minister agreed it was in the child’s best interests to have continued access to hisfather and was willing to agree in writing that such access would occur, the Minister was “unwilling to have the Court make such anorder.” Despite the absence of an express authority in the Act to reserve a right of access following guardianship, Hoyt J.A., laterC.J.N.B., rejected the notion this indicated a legislative intention to prohibit the making of such an order: […] Once the guardianship order is made s. 61 provides the only review mechanism.

That review provides for the varying of aguardianship order and for making such order as the Court then considers appropriate, considering always the best interests of the child.If access is in the best interests of the child and thus permitted at the review stage surely access is an option when the order ismade initially. Counsel for the Minister urged strongly that, because a guardianship order is generally a prelude to adoption and because adoptingparents would likely not want to adopt a child where other persons have visiting rights, it would be illogical to give access when makinga guardianship order.

In my view counsel's concerns are overly stated. It will be only in rare situations that access will be orderedand it may be that in these rare situations it is not appropriate for that child to be placed for adoption. It should be noted that theAct, in s. 85(2)(a), contemplates that even an adoption order can be made subject to access. [Emphasis added; paras. 15-16] [59] This

interpretation of the court’s authority under the Act to order access on guardianship wasaffirmed more than a decade later by the Supreme Court in New Brunswick (Minister of Health and Community Services) v. L. (M.), (SCC), [1998] 2 S.C.R. 534, [1998] S.C.J. No. 52 (QL): To summarize, I am of the view that the New Brunswick legislature has given the courts jurisdiction to decide access rights, since itrequires that they “place above all other considerations the best interests of the child” (s. 53(2)).

Denying the courts theopportunity to decide whether an access order should be made could prevent them from performing their duty of acting in the bestinterests of the child.

It is not surprising that the New Brunswick courts, supported by the judgment of the Court of Appeal in Re M.A.G.,supra, have generally found that they possess this jurisdiction. [Some emphasis mine; para. 31] [60] To be clear, the authority recognized by the Supreme Court did not derive from the court’sinherent jurisdiction; it flowed from the Act. [61] In relation to the principles applicable to a determination of whether the power to preserve achild’s right of access ought to be exercised on the making of a guardianship order, Gonthier J. stated in New Brunswick (Minister ofHealth and Community Services) v.

L. (M.): My consideration of whether access should be granted is based on the following principles. First, there is no inconsistency in principlebetween a permanent guardianship order and an access order. Second, access is the exception and not the rule. Third, the principle of

preserving family ties cannot come into play in respect of granting access unless it is in the best interests of the child to do so, having regard to all the other relevant factors. Fourth, an adoption, which is in the best interests of the child, must not be hampered by the existence of a right of access. Fifth, access should not be granted if its exercise would have negative effects on the physical or psychological health of the child. The decision as to whether or not to grant access is a delicate exercise which requires that the judge weigh the various components of the best interests of the child.

It is up to the judge to determine which of the child’s interests and needs take priority (see New Brunswick (Minister of Health and Community Services) v. D.T.P. , [1995] N.B.J. No. 576 (QL) (Q.B.), at para. 41 ). A child’s emotional stability is of prime importance. If the child is unduly disturbed by access, it is generally not granted[.] [Emphasis added; paras. 39 and 51] [ 62 ] These principles have guided the analysis of the courts of New Brunswick for almost 25 years (see, for example, D.S. and A.C. v. The Minister of Social Development , 2021 NBCA 25 , [2021] N.B.J. No. 128 (QL) ; and J.P. and R.D. v.

The Minister of Social Development , 2022 NBCA 57 , [2022] N.B.J. No. 227 (QL) ), and they are not in issue in this case . Not surprisingly, the factors to be considered when deciding whether to reserve access under the Ontario legislation are similar to those identified by Gonthier J. [ 63 ] Little has been said in New Brunswick regarding the necessity or preferability of specifying the type and frequency of post-guardianship access in the order reserving that right. T he issue has been determined on a case-by-case basis.

It appears the Minister’s practice has been generally to advocate against an order that includes structured post-guardianship access. [ 64 ] In M.A.G., Re . , the order appealed by the Minister required the child have “reasonable access” to his father following guardianship . Although the specificity of the access ordered was not challenged on appeal, this Court upheld the trial judge’s decision to order unspecified, “reasonable” access. [ 65 ] In Minister of Social Development v.

M.G. and B.B. , 2012 NBCA 19 , 383 N.B.R. (2d) 394, the Minister appealed a trial judge’s order that specified structured access following guardianship. This Court rejected the Minister’s assertion that the judge erred. The Court concluded the decision to order access was owed deference and noted the ordered access could be varied if the circumstances changed. This may be done pursuant to ss. 60 and 61 of the Act .

That said, the Court agreed generally with the Minister’s contention that structured access creates difficulties for both the Minister and the child, and flexibility and discretion should be the norm in such orders. With respect to the second ground, the Minister argues that structured access should not have been ordered because it had not been specifically sought by the child’s counsel. The Minister points out that structured access creates difficulties for both the Minister and the child and argues that discretion and flexibility should be the norm. We generally agree with this last proposition.

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

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

Decisions like this one, made in exceptional cases, unless either unreasonable or the product of an error of law or of principle, should withstand appellate review on application of the deference owed to trial judges and should be left to be varied, as appropriate, upon a change of circumstances that affects the best interests of the child. [Emphasis added; paras. 11 and 12] [ 66 ] I agree with the notion that, as a general proposition, an order for post-guardianship access should seek to provide the measure of flexibility that best serves the child’s interests going forward.

This is in recognition of the fact that, in most cases, guardianship leads to a change in the plan for the child’s future, likely the pursuit of adoption. Consequently, even where there is a reservation of a right of access to a parent(

s) or other person(s), there will be a corresponding change in the nature and level of the contact, which responds to the transition that is anticipated and may be expected to continue to evolve for a variety of reasons over time.

[ 67 ] However, whether it would be more appropriate to specify access will depend on the circumstances of the case, including whether the judge is satisfied the parties can act reasonably under an order that confers a discretion in an effort to provide the desired flexibility. [ 68 ] In deciding whether it is preferable to provide flexibility or specificity in the order in relation to the right of access, it will undoubtedly be borne in mind that the court has concluded the children’s best interests are served by ordering post-guardianship access, in addition to and rather than relying solely on the Minister’s ability to permit the child or children to have access or contact with a parent or other person.

(3) The right of access [ 69 ] In this case, the parents submit the order leaves access so completely to the Minister’s discretion that the Minister can decide whether there ought to be access at all. Additionally, they contend the children’s right of access is further compromised by their inability to engage the court to require the Minister to give effect to the order. In other words, the parents assert they cannot enforce the order as it is. It was acknowledged at the hearing before us that the children have not had contact with their parents or grandmother in quite some time.

Why this has been the case is unknown. [ 70 ] I do not agree the order is as meaningless as the parents contend. In my opinion, any order that expressly reserves a child’s right of access to a parent or other person on guardianship or otherwise, confirms the existence of a substantive right. Consequently, even where the order provides for that right to be exercised through the Minister’s discretion, having regard to the best interests of the children, the order imposes an obligation that is mandatory.

It goes without saying that the discretion conferred on the Minister must be exercised reasonably in the circumstances and consistent with the child’s best interest. [ 71 ] Having found it was in the children’s best interests to continue their right of access to their parents and grandmother, the application judge ordered that right be preserved. This was done in contemplation of a considerable volume of evidence, including two Voice of the Child reports.

The daughter indicated she wanted things to remain the same, which the judge took, during closing arguments, as indicating she was content in care but wanted to continue a relationship with her parents.

Further, in recognition of the guardianship order ending the plan to reunify the family and commencing the effort to find the children a permanent home through adoption, the judge concluded the children would benefit from the continuity of maintaining the relationships with their parents and grandmother. [ 72 ] The reasons for reserving the right of access would be expected to inform the access that the judge expected would occur post-guardianship, at least initially.

It was clear access was expected to reduce from multiple times each week, as was the case when the plan included the possibility of family reunification prior to the transfer of guardianship. Although the Minister indicated access would continue, undoubtedly if it were ordered, there was no indication as to how this would evolve through the expected transition. Before us, the parents sought access once every couple of weeks or once a month.

It is evident the fluidity of the circumstances played a role in the judge’s decision to reject the parents’ request for specified access and, instead, order that access “be exercised at the discretion of the Minister” and “in accordance with the best interests of the Children.” [ 73 ] Despite the discretion, it is readily apparent the judge intended to create a right of access and impose a corresponding obligation on the Minister to arrange access.

The order is not simply permissive, nor is it intended to merely mirror the Minister’s existing authority to facilitate access. [ 74 ] Indeed, in my opinion, the order cannot be interpreted as entitling the Minister to decide there should be no right of access. If the Minister were to conclude there ought not be a right of access, the Minister should apply to vary the access order as permitted under ss. 60 and 61 of the Act . Notably, in such an application, one of the factors to be taken into consideration is “whether the Minister has fulfilled his obligations under the order.” Section 61(2) provides:

61(2) Upon receiving an application undersubsection (1), the court shall, subject tosubsection (4), (

a) hear the matter in accordance with section60, (

b) take into account as additionalconsiderations, (

i) whether the Minister has fulfilled hisobligations under the order or agreement, and (ii) if relevant to the application, whether theformer parent is able and willing to provideappropriate care for the child. 61(2) Sur réception d’une demande en vertudu paragraphe (1), la cour doit, sous réservedu paragraphe (4),

a) entendre la question conformément àl’article 60,

b) tenir compte, en plus des autresconsidérations (

i) du fait que le ministre s’est ou non acquittédes obligations que lui imposait l’ordonnanceou l’entente, et (ii) si pertinent à la demande, du fait quel’ancien parent est ou non capable de procurerà l’enfant un foyer convenable et disposé ounon à le faire. [75] Further, the order does not, on its face, permit the Minister to exercise the discretion conferredin a manner that effectively defeats the children’s right of access and renders it illusory. [76] Finally, it was and continues to be open to the parents to either or both apply to vary the order orchallenge the Minister’s compliance with the order. [77] Although an application to vary the order can only be made at least six months after the makingof the order (s. 61), that time has long passed.

In relation to the parents’ hypothetical concern with non-compliance within the first sixmonths of the order, there is always Rule 76 – Contempt. This said, as noted in a case where this Court set aside a finding of contemptwhere the Minister was found not to have complied with a requirement under a Supervisory Order, the terms sought to be enforcedcannot be ambiguous (see New Brunswick (Minister of Health and Community Services v. S.L. et al. (1998), (NBCA), 200 N.B.R. (2d) 127, [1998] N.B.J. No. 230). [78] In sum, in my opinion, the application judge did not err in ordering access as she did. IV.

Disposition [79] It was for these reasons I joined with my colleagues in dismissing the appeal. Version française de la décision rendue par LE JUGE FRENCH I. Introduction

[1] Une juge de la Division de la famille de la Cour du Banc de la Reine (tel était alors son nom) aordonné que la tutelle de deux enfants soit transférée à la ministre du Développement social à

titre permanent. Notre Cour a rejeté l’appelque les parents ont interjeté de cette décision le 24 novembre 2022 et a indiqué que les motifs suivraient. Voici ces motifs. [2] La Ministre est intervenue auprès de la famille pour la première fois peu après la naissance deleur fille, en 2009, et son intervention s’est intensifiée après la naissance de leur fils, en 2014. En février 2017, les enfants étaientrégulièrement visés par des ordonnances de garde ou de surveillance en faveur de la Ministre.

En février 2019, des préoccupationsimmédiates au sujet de leur sécurité ont incité la Ministre à placer les deux enfants sous un régime de protection et, finalement, à endemander la tutelle. [3] À la suite d’un procès de dix jours, pendant lequel 18 personnes ont témoigné, la juge a renduune décision de 94 pages présentant de manière très détaillée la preuve, les positions des parties et ses conclusions. Elle a reconnu queles parents sont engagés dans une relation à long terme depuis plus de 20 ans.

Elle a aussi reconnu que leur aptitude à parenter n’est pasaffaiblie par l’existence de dépendances, qu’ils ont maintenu un foyer permanent et fixe et qu’ils ont le soutien de leur famille. Toutefois,la juge a conclu que la preuve étayait les préoccupations de longue date de la Ministre au sujet de la négligence, de la sécurité et dudéveloppement des enfants. Jugeant qu’il était dans l’intérêt supérieur des enfants de le faire, elle a transféré la tutelle à la Ministre et aconservé pour les enfants un droit d’accès auprès de leurs parents et de leur grand-mère maternelle.

Il a été ordonné que le droit d’accèssoit exercé à la discrétion de la Ministre, en conformité avec l’intérêt supérieur des enfants. [4] Les parents soulèvent trois moyens d’appel. Ils soutiennent que la juge saisie de la requête acommis une erreur :

i) de droit en raison de l’insuffisance de la preuve à l’appui de sa décision d’accorder la tutelle; ii) de principe en omettant de tenir compte de l’intérêt supérieur de chaque enfant, en violation du préambule et de l’art. 6 de la Loisur les services à la famille, L.N.-B. 1980, ch. F-2.2 (la Loi); iii) en rendant une ordonnance d’accès postérieur à la mise en tutelle qui était trop vague pour être valable ou exécutoire. [5] Les moyens d’appel énumérés ci-dessus sont présentés dans l’ordre inverse de celui qui estdans l’avis d’appel supplémentaire.

J’ai choisi de me pencher sur eux dans cet ordre afin de répondre à l’argument des parents selonlequel : 1) la preuve était insuffisante pour établir qu’il était dans l’intérêt supérieur de leurs enfants de transférer la tutelle; 2) même si lapreuve justifiait la mise en tutelle de leur fils (ce qu’ils n’admettent pas), elle révèle qu’ils peuvent assurer des soins convenables à leurfille; et 3) le fait que leur demande visant l’établissement d’un calendrier d’accès déterminé à la suite de la mise en tutelle a été rejetée etque l’accès a été laissé à la discrétion de la Ministre a entraîné le prononcé d’une ordonnance d’accès qui est vide de sens etinexécutoire.

II. Norme de contrôle [6] Il y a lieu de souligner, notamment aux parents, qu’un appel n’est pas un nouveau procès. Ledroit n’enjoint ni ne permet à un tribunal d’appel d’examiner la preuve produite au juge de première instance et de rendre une décisiondifférente, et ce, même lorsqu’il aurait été porté à tirer une conclusion différente. On ne peut infirmer une décision en appel qu’enprésence d’une erreur de droit ou de principe, ou d’une erreur manifeste et dominante quant à la preuve. Comme on l’a affirmé dans l’arrêt M.V. et C.H. c.

Ministre du Développement social, 2021 NBCA 42, [2021] A.N.-B. no 234 (QL) : La norme de contrôle en appel en matière de protection de l’enfance est stricte et doit être empreinte de retenue, sauf s’il y a une erreurévidente dans l’application d’un principe juridique, si le juge a commis une erreur manifeste et dominante dans l’appréciation des faits de l’affaire, ou si les motifs étaient insuffisants (S.H. et M.D. c. Ministre du Développement social, 2014 NBCA 20, 419 R.N.-B. (2e)377, par. 4). Dans l’arrêt Van de Perre c.

Edwards, 2001 SCC 60 , [2001] 2 R.C.S. 1014, le juge Bastarache a réitéré que lanorme de contrôle en matière de garde d’enfant prescrit la déférence, sauf s’il y a une erreur importante, une erreur significative dansl’interprétation de la preuve ou une erreur de droit (par. 11). [par. 6]

III. Analyse A. L’insuffisance de la preuve à l’appui d’une ordonnance de tutelle [7] L’assertion selon laquelle la preuve est insuffisante pour justifier la tutelle n’est pas ancrée dans le fait qu’on ait relevé une erreur manifeste et dominante dans l’appréciation de la preuve effectuée par la juge saisie de la requête ou une erreur dans l’interprétation de la preuve.

Elle est avancée en tandem avec l’observation selon laquelle la preuve établit que les parents ont répondu aux attentes prévues dans les divers plans d’intervention élaborés par la Ministre et qu’ils ont maintenu une routine pour leurs enfants, leur ont fourni des repas convenables et nutritifs, ont suivi les recommandations des médecins quant à leurs soins et ont entretenu un foyer qui, même s’il n’était pas parfait, était sécuritaire.

Les parents affirment que l’intervention de la Ministre était motivée par des préoccupations relativement mineures quant à l’état de leur foyer et par le fait qu’elle n’aimait pas leur style de parentage. [8] Les assertions faites à l’appui du présent moyen d’appel ressemblent de près à la plaidoirie de clôture que les parents ont présentée à la juge.

Il est important de souligner qu’elles sont contraires aux conclusions expressément tirées par la juge. [9] En l’absence d’une erreur manifeste et dominante, dans le meilleur des scénarios, il est affirmé par ce moyen d’appel qu’il n’était pas loisible à la juge de décider, d’après la preuve qu’elle avait admise, que la Ministre avait établi, selon la prépondérance des probabilités, que la tutelle était dans l’intérêt supérieur des enfants ou qu’elle n’avait pas convenablement soupesé la preuve retenue.

Ni l’une ni l’autre de ces prétentions n’a quelque rapport que ce soit avec la prise en considération par la juge des faits admis. [10] La juge disposait d’un dossier de preuve considérablement volumineux et en a présenté un résumé complet dans sa décision de 94 pages.

Bien qu’il ne soit pas nécessaire d’exposer un résumé complet du dossier pour trancher le présent appel, un aperçu de l’intervention de la Ministre auprès des parents, des positions des parties et des questions en litige tranchées par la juge est utile pour comprendre les motifs pour lesquels j’ai rejeté l’argument des parents selon lequel la preuve était insuffisante pour justifier une ordonnance de tutelle. [11] Même si l’intervention de la Ministre auprès de la famille a commencé à la naissance de la fille, en 2009, la preuve présentée au procès portait principalement sur la participation active de la Ministre pendant les cinq années qui ont précédé le placement des enfants sous un régime de protection en 2019 et les 27 mois qui ont suivi, jusqu’à la tenue du procès. [12] En octobre 2013, alors que la fille avait quatre ans, des préoccupations continues quant aux conditions qui existaient dans le foyer des parents ont incité la Ministre à prendre des dispositions pour que la famille participe à un programme d’appui à la famille.

La naissance de leur fils, en mars 2014, a imposé des responsabilités supplémentaires aux parents. Il a dû subir une opération chirurgicale en raison de son anus imperforé. Bien que l’opération ait réussi, il avait continuellement besoin d’une gestion attentive en matière d’alimentation et d’élimination. Il a reçu plus tard un diagnostic d’autisme.

Quant à la fille, on lui a prescrit des médicaments pour un TDAH et l’asthme. [13] Aux préoccupations persistantes de la Ministre au sujet de l’état du foyer des parents, de l’hygiène des enfants et de la santé mentale des parents s’ajoutent des préoccupations quant à la santé du fils, notamment en ce qui concerne ses difficultés liées à son poids faible et à son manque d’énergie.

Le plan élaboré afin d’aider les parents lors d’une conférence de groupe familiale organisée par la Ministre en mars 2016 comprenait la réception d’une assistance provenant de leurs familles élargies, en plus de celle provenant de travailleurs de soutien familiaux et d’auxiliaires familiaux fournis par la Ministre. [14] Malheureusement, ces interventions n’ont pas apaisé les inquiétudes de la Ministre quant aux soins prodigués dans le foyer. Selon la Ministre, les parents ont été incapables d’établir une structure ou une routine pour les enfants.

Des conférences de planification de la permanence ont eu lieu en septembre et en décembre 2016. Les parents ont accepté de continuer de collaborer avec la Ministre, de rencontrer régulièrement le pédiatre du fils et de suivre les conseils ayant trait à son faible poids. [15] En janvier 2017, des préoccupations au sujet du faible poids du fils, de sa pâleur et de son manque d’énergie ont mené son pédiatre à l’admettre à l’hôpital, en

partie pour surveiller son apport alimentaire. De plus, il a été décidé

que la fille (qui avait alors sept ans) habiterait chez sa grand-mère paternelle. [16] Le fils a pris du poids et son état général s’est amélioré. En février 2017, il a obtenu son congé de l’hôpital. Toutefois, la Ministre n’avait pas confiance que les parents pourraient répondre à ses besoins, et il a été confié aux soins de sa grand-mère. [17] Avoir la charge des deux enfants chez elle s’est avéré trop difficile pour la grand-mère et, quelques semaines plus tard, la Ministre a placé le fils sous un régime de protection.

La fille est restée avec sa grand-mère. [18] Lors d’une conférence de planification de la permanence tenue le 26 mai 2017, la Ministre a notamment fait valoir ses préoccupations quant au fait que les parents ont été expulsés de leur foyer en raison du piètre état de celui-ci, que la mère refusait de recevoir du counseling en santé mentale, que les parents interagissaient peu avec les enfants lors des visites et qu’ils étaient incapables de reconnaître l’existence ou les répercussions de ces préoccupations persistantes.

Il a été convenu que les parents travailleraient en vue de régler la question de l’état de leur foyer et, pour aider la mère, cette dernière a été orientée vers des services de santé mentale. Entretemps, leur fille a continué de vivre avec sa grand-mère et leur fils est resté sous la charge de la Ministre. [19] Le 16 juin 2017, la fille est retournée vivre chez ses parents sous le régime d’une ordonnance de surveillance.

Le fils est resté sous la charge de la Ministre. [20] En août 2017, la Ministre estimait que les progrès réalisés par les parents par rapport au plan d’intervention étaient insuffisants et que les besoins physiques et mentaux de leur fils l’empêchaient de retourner vivre chez eux, et ce, même si une ordonnance de surveillance était rendue.

La Ministre a demandé une prolongation de l’ordonnance de garde relative au fils et de l’ordonnance de surveillance relative à la fille. [21] Le 30 novembre 2017, la Ministre a procédé à la transition du fils vers le foyer de ses parents sous le régime d’une ordonnance de surveillance. [22] Les conditions qui existaient dans le foyer des parents se sont détériorées au cours des trois mois qui ont suivi, et le fils a encore une fois perdu du poids. Le 23 février 2018, la Ministre l’a pris en charge pour la deuxième fois.

La fille est restée chez elle conformément à une ordonnance de surveillance. [23] Après une autre période comptant beaucoup d’interventions et d’aide de la part de la Ministre, on a reconnu, à l’été 2018, qu’un certain progrès avait été réalisé et, en septembre 2018, le fils a été renvoyé au foyer de ses parents sous le régime d’une ordonnance de surveillance. Les deux enfants étaient alors aux soins de leurs parents sous le régime d’ordonnances de surveillance.

L’ordonnance de surveillance de septembre 2018 contenait un nombre important de conditions détaillées ayant trait aux soins des enfants et à l’état du foyer. [24]

Malgré les récents progrès et le fait que les parents avaient accepté de respecter les conditions de l’ordonnance de surveillance, la Ministre a continué de s’inquiéter de la possibilité d’une détérioration dans tous les sujets de préoccupation dès que l’intensité de

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