2014 NBCA 20, 2014 NBCA 20

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 95-13-CA S.H. and M.D. APPELLANTS S.H. et M.D. APPELANTS - and - - et - THE MINISTER OF SOCIAL DEVELOPMENT RESPONDENT MINISTRE DU DÉVELOPPEMENT SOCIAL INTIMÉE S.H. and M.D. v. The Minister of Social Development, 2014 NBCA 20 S.H. et M.D. c.

Ministre du Développement social, 2014 NBCA 20 CORAM: The Honourable Justice Larlee The Honourable Justice Richard The Honourable Justice Quigg CORAM : l’honorable juge Larlee l’honorable juge Richard l’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: August 20, 2013 Appel d’une décision de la Cour du Banc de la Reine : le 20 août 2013 History of Case: Historique de la cause : Decision under appeal: 2013 NBQB 263 Décision frappée d’appel : 2013 NBBR 263 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: April 8, 2014 Appel entendu : le 8 avril 2014

Judgment rendered: April 9, 2014 Jugement rendu : le 9 avril 2014 Reasons delivered: June 5, 2014 Motifs déposés : le 5 juin 2014 Reasons for judgment by: The Honourable Justice Larlee Motifs de jugement : l’honorable juge Larlee Concurred in by: The Honourable Justice Richard The Honourable Justice Quigg Souscrivent aux motifs : l’honorable juge Richard l’honorable juge Quigg Counsel at hearing: For the appellants: Patricia Gallagher Jette For the respondent: Corry Anne Toole Avocats à l’audience : Pour les appelants : Patricia Gallagher Jette Pour l’intimée : Corry Anne Toole THE COURT The appeal is dismissed without costs.

LA COUR L’appel est rejeté sans dépens. The judgment of the Court was delivered by LARLEE, J.A. [ 1 ] This is an appeal by S.H. and M.D. against an order of the Court of Queen’s Bench, Family Division, transferring from them the guardianship of three children (T., M., and H.), aged nine, eight and six, to the Minister of Social Development pursuant s. 56(1) of the Family Services Act , S.N.B. 1980, c. F-2.2 (the Act ).

The decision of the trial judge, which is reported at 2013 NBQB 263, 411 N.B.R. (2d) 30 , was rendered as a result of an order by this Court for a re-trial of a Guardianship Application for the three children, reported at 2013 NBCA 35 , 406 N.B.R.(2d) 242. This is an appeal from the re-trial decision. Shortly after the conclusion of the hearing, we dismissed the appeal with reasons to follow. These are the reasons. [ 2 ] At the time of the appeal, the three children had been under the protective care of the Minister for five years. Here is a short chronology of events:

September 18, 2008 Supervisory OrderSeptember 30, 2008 Case Plan signedMarch 17, 2009 Appellants consent to extendSupervisory OrderApril 9, 2009 Children taken into protectivecareApril 17, 2009 Custody OrderOctober 2010 Minister applies forGuardianship Order of the threechildrenApril 4, 2011 First trialJanuary 14, 2013 Decision in first trialApril 9, 2013 Appeal oral decision, 2013NBCA 35, 403 N.B.R. (2d) 186 July 4, 2013 Reasons on Appeal 2013 NBCA35, 406 N.B.R. (2d) 242July 15-19 and 22-26, 2013Second trialAugust 2, 2013 Written submissionsAugust 6, 2013 Oral argumentAugust 20, 2013 Decision [3] S.H. is the mother of seven children, including the three children who are the subject of theapplication for guardianship.

M.D. is the biological father of these three. S.H. and M.D. have a continuing relationship, but do notcohabit. Another child, N., was born in June 2010 and remains in the care of the mother. The parents consented to the guardianship oftwo other, older children at the children’s request. The plan of the Minister was to place the three children, T., M., and H., for adoption.The parents sought the return of these children. The trial judge granted the Minister’s request. I.

Standard of Review [4] The scope of appellate review is narrow as it applies to the application of the “best interests ofthe child” test in guardianship applications. In S.B. v. New Brunswick (Minister of Family and Community Services), 2006 NBCA 41,[2006] N.B.J.

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

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

These casesstand for the proposition, succinctly stated by Drapeau C.J.N.B. in A.N. at para. 11, that an appellate court will not intervene in childprotection 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] This Court has iterated this view in J.R.C. v. Minister of Social Development, 2013 NBCA 5, 398 N.B.R. (2d) 199; N.J.P. v. Minister ofSocial Development, 2012 NBCA 3, 382 N.B.R. (2d) 245; The Minister of Social Development v.

G.B., F.H. and R.O., 2012 NBCA 62,392 N.B.R. (2d) 209; and New Brunswick (Minister of Family and Community Services) v. A.W. et al., 2007 NBCA 77, 322 N.B.R. (2d)162. II. Fresh Evidence [5] At the appeal hearing, S.H. and M.D. presented a motion for fresh evidence, specifically twohearsay statements made by a 13 year old sibling of the subjects of the application to their mother (indirectly) and to his 18 year oldbrother.

The appellants argued the statements would be relevant to the credibility of the foster mother, the validity of the Minister’s Planfor the three children, and the validity of the trial judge’s weight given to the evidence. They submit this fresh evidence would have hadan impact on the just determination of the children’s best interests.

[6] The law with respect to the admissibility of fresh evidence in the family law context isexplained by Bell J. A. in L.T.G. v. C.J.G., 2011 NBCA 12, 369 N.B.R. (2d) 202: […] In order to be admitted, the evidence must not have been reasonably discoverable prior to trial by the application of due diligence,would probably have an influence upon the result, and must be apparently credible, although it need not be incontrovertible: Workers’Compensation Board v. McCarthy (1982), (NB CA), 42 N.B.R. (2d) 160, [1982] N.B.J. No. 309 (C.A.) (QL), paras.4-6; Ryan v. Law Society of New Brunswick [2000] N.B.J.

No. 540 (C.A.) (QL), para. 13; P.R.H. v. M.E.L., 2009 NBCA 18, 343 N.B.R.(2d) 100, para. 40, and cases cited therein. […] [para. 9] See, as well, Sangster v. Sangster, 2014 NBCA 14, [2014] N.B.J. No. 60 (QL) and Brooks v. Brooks, 2014 NBCA 29, [2014] N.B.J. No.112 (QL). [7] The evidence S.H. and M.D. sought to produce as fresh evidence on appeal was notadmissible. In our view, the trial judge would not have accorded any weight to an isolated comment from a troubled young boy in thiscontext, and, as a result, it would not have had an influence on the result.

Therefore, we dismissed the motion to admit fresh evidence atthe hearing. III. Analysis and Decision [8] S.H. and M.D. request the Guardianship Order be set aside and a custody order granted. Theyrely on numerous grounds of appeal. I will respond to them globally as many of them touch on the same issues.

None of them convinceme that the trial judge’s decision has no factual merit or was based on an error in principle, a failure to consider all relevant factors or theconsideration of an irrelevant factor. [9] S.H. and M.D. argue that, as a result of alleged errors, the children were denied their statutoryright to have their best interests determined. They submit a separate analysis of the criteria of the “best interests of the child” wasrequired for each child.

There is no jurisprudence from the Supreme Court of Canada or this Court that would require a trial judge to doan independent and separate analysis of the seven criteria of the “best interests of the child” found in the definition

section of the Act foreach child in an application of this kind. These children are in close proximity in age, and they have functioned as a sub family unit for aperiod of 5 years or more. The trial judge himself acknowledged that their lives were intertwined, and after discussing individualcharacter traits of each child he did a global analysis of their needs in applying the “best interests of the child” criteria.

There may besituations where it would be necessary to undertake a separate and distinct analysis, if the children were not in the same age group andhave resoundingly different needs, but this is not one of them. The trial judge devoted 24 pages of his reasons to the analysis of the “bestinterests of the child” criteria. It is a very comprehensive analysis.

As a result, this ground of appeal fails. [10] S.H. and M.D. submit they were denied their procedural right to a fair hearing as guaranteed bythe legislation and the Canadian Charter of Rights and Freedoms, and that the security of the children’s rights were breached in amanner that was not in accordance with the principles of fundamental justice (s. 7 of the Charter). They allege, among other things,omissions in, and the argumentative nature of, the Minister’s affidavits.

According to them, the trial judge failed to recognize theMinister’s slanted presentation of the case, which affected the reliability of the evidence. In the end, they claim the trial judge should nothave granted the guardianship order. A review of the record reveals the appellants were given full opportunity to cross examine thewitnesses and to present their position to the trial judge.

Once the Minister determined it would be in the best interests of the children toseek a guardianship order, there was nothing wrong with the Minister’s lawyer advocating this position. [11] S.H. and M.D. submit because of these alleged procedural errors made by the Minister, the trialjudge should have issued a custody order instead of a guardianship order. I do not agree that there were procedural errors.

But, even ifthere had been, we could not grant the relief sought on appeal: that the guardianship order be set aside and a custody order issue in itsplace. [12] A trial judge may extend periods of custody up to a maximum of 24 months in accordance withs. 55(2) of the Act. In this case, the children had been in the care of the Minister since April 9, 2009, well beyond the prescribed 24month period. The trial judge stated: Except, I find there are serious faults with the parents’ plan. First, the Court cannot issue a custody order in these circumstances. This

was made clear in New Brunswick (Minister of Family and Community Services) v. S. B. , 2008 NBCA 16 . Second, my earlier findings regarding the nature of the relationship between the children and their parents, coupled to the serious deficiencies in the parenting capacities and abilities and my earlier conclusion as to the lack of utility of a supervisory order, however conditioned, makes the prospect of returning the children, or even trying to return the children, not only bleak but a desperate measure. [para. 169] [ 13 ] In New Brunswick (Minister of Family and Community Services) v. S.

B. this Court found that there was no ambiguity in s. 55(2): an application judge does not have the authority or jurisdiction to extend a custody order beyond the 24 months set out in that section. To retain custody after that period, the Minister must apply for permanent guardianship of the children, otherwise custody reverts to the parents upon expiration of the custody order, subject to the possibility of a supervisory order issuing in favour of the Minister. The trial judge knew he had two choices: to grant the guardianship or not.

There is no basis to this ground of appeal. [ 14 ] S.H. and M.D. argue that the trial judge failed to consider relevant evidence and made essential findings of fact and inferences not supported by the evidence. I disagree. [ 15 ] The trial judge found it was in the children’s best interests that the Minister’s application be granted. The appellants attack the following conclusory paragraph in which the trial judge made comments on the subject: This Court took great pains at the outset to identify what happened to the children and to explain why they remain so very troubled.

It was only in trying to understand and answer those questions could the Court even begin to assess what these children truly need and who can best provide it to them, in the short and over the long term. This is not a case where because of lack of supervision a child or children were physically injured. This case is not about broken bones that have long since healed and parents who have long since rehabilitated their parental attention. And, this case is well beyond physical deprivation that has been eliminated.

This case is about children who suffered severe “trauma”, emotionally and mentally, in the neglectful hands of their parents over a considerable period. At the time of protective care they were incredibly developmentally delayed. They suffered untold stress, stress that no adult could even come close to fully understanding, expert or not. They were scared, angry, defiant, aggressive, anxious, frustrated and absolutely starved and craving for love, affection, attention and just simple understanding.

From what I have seen in the totality of the evidence, I explain the depths of despair these children must have been in by unhesitatingly describing the level of neglect as outrageous! [para. 160] [ 16 ] The trial judge then came to a number of determinative conclusions. He found the three children are still developmentally delayed. He accepted the opinion of a developmental pediatrician who has been following these children since the implementation of the protective care order, who unequivocally summed up the children’s condition by stating: “These children are high needs and very damaged”.

According to the trial judge, the children react and interact as they do in a way that is “off the chart” and their problems are so pervasive they require medication to cope. [ 17 ] The trial judge found the foster parent is the children’s “psychological parent” since two of the children have been in her care longer than with their parents.

It is at the foster mother’s patient, skillful and caring hands that the children have, for the first time in their lives, found structure, consistency, nurture, guidance, discipline and, above all, true understanding of their needs and unwavering focus on them. [ 18 ] The trial judge concluded at least two of the children have attachment disorders, the children’s relationship with their parents is unhealthy, the bonds fragile, and they are confused and anxious.

Two elder siblings, who were taken into care, are of an age to comprehend the situation and did not want to be returned to the parents, hence the transfer with consent of their guardianship to the Minister. [ 19 ] The trial judge remained worried about the implications of unresolved narcissistic personality traits of the parents.

He had misgivings about placing the children into the care of anyone whose parenting style was “permissive” or “laid back”, as contraindicated by the experts. [ 20 ] The trial judge concluded the application for a guardianship order had to be granted because of his firm conviction these children need caregivers with parental skills and attributes well above those of an average parent, most certainly above a level of “minimally acceptable”; and since so much time has passed, the children require the most immediate and secure environment possible so that they can reach their full potential. [ 21 ] In truth, the trial judge made every effort to compare the history of the family with the current situation.

In my opinion he needed to thoroughly examine the evidence of past parenting because it is relevant to both the finding of

protection and in deciding upon a proper disposition if the children are found to be in need of protection: Prince Edward Island (Directorof Child Welfare) v. P.P., 2006 PESCAD 12, [2006] P.E.I.J. No. 33 (QL), at paras. 31-33. [22] Finally, and perhaps the overarching argument of S.H. and M.D. in this case was that the trialdecision was an indictment of the mother and her parenting ability.

The attack is three pronged: (1) the trial judge drew incorrectinferences regarding her parenting skills, (2) relied too heavily on outdated expert reports; and (3) erred in reserving access to thechildren’s siblings and not to the parents. [23] I do not accept the submission of the appellants that the trial judge in essence blamed themother for all that had gone wrong with these children and that her permissive parenting style was the sole cause of the problem. Acareful read of the decision shows the trial judge had empathy for the mother.

During a period of two years she worked seven days aweek from 9:00 a.m.to 2:30 a.m. and, while the trial judge admired the efforts she made for her children in working as hard as she did, hewas unable to come to any other conclusion than that she failed to demonstrate a consistent ability to parent at a minimally acceptablestandard over the ensuing years with respect to the three children. As a trier of fact, it is the responsibility of the trial judge to evaluate allthe evidence, including that of experts, and come to a conclusion. The trial judge made no error in this regard.

It was his decision tomake: P.R.H. v. M.E.L., 2009 NBCA 18, 343 N.B.R. (2d) 100, para. 16. [24] The trial judge found that reserving access of the three children to the parents would not be intheir best interests and would impede their possibility of being adopted. In so doing, he was applying the criteria found in the leadingcase on this subject, New Brunswick (Minister of Health and Community Services) v. M.L., (SCC), [1998] 2 S.C.R.534, [1998] S.C.J. No. 52 (QL), in which Gonthier J. explained: An order for permanent guardianship is the result of a consideration of the best interests of the child.

In considering whether visiting oraccess rights should be granted, the judge cannot ignore the fact that he or she has first found it necessary to remove the child from theparents’ care completely and permanently, so that the child’s welfare will not be jeopardized any further. The judge must thereforeconsider whether more limited contact might still be beneficial for the child. My consideration of whether access should be granted is based on the following principles. First, there is no inconsistency in principlebetween a permanent guardianship order and an access order.

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

Fifth, access should not be granted if its exercise would have negative effects on the physical orpsychological health of the child. [paras. 38-39] [25] However, the trial judge went on to find this was one of those rare cases where access rightsshould be reserved to the three children’s siblings and step-siblings. He explained why this access should be preserved and it should notbe interpreted as a further indictment of the mother: The children’s siblings and half siblings are a different matter. I have earlier attempted to describe those convoluted relationships.

In myview those family ties should not be severed. They will be important for the children in the years to come. It has been said that therelationship between siblings “may be as important to their well-being as their relationships with their parents” (Funk v. Funk 2004BCSC 1800). This is probably such a case. In the years to come they will probably need each other to come to grips with where theyhave been; for understanding and mutual support. We should recognize “the potential degree of relationship that will likely developgiven a secure and stable environment” (Akister v.

Rasmussen (1991), (SK KB), 90 Sask.R. 60 (Q.B.) at para. 26).He. and Je. would seem to be particularly important figures, if not now, in later years. Weighing the potential benefits against thepurpose of the guardianship order, including the potential effects on adoption placement, I am satisfied that access in principle needs tobe preserved for the children to their siblings and half siblings.

In saying that I realize that Jd., at least at this stage of his life, posescertain concerns and that the preservation of access to siblings will most probably involve incidental contact with the parents in somesettings. [para. 187] [26] In my view, the trial decision is devoid of any error regarding the relevant principles or theirapplication to the facts of the case, and these facts support the finding that it was in the best interests of the children to grant theguardianship order which S.H. and M.D. are appealing.

That being so, and given the applicable standard of review, there is no basis forappellate intervention. [27] For the above reasons, I joined with my colleagues in dismissing the appeal, but without costs. ____________________________________

M.E.L. LARLEE, J.A. WE CONCUR: _______________________________ J.C. MARC RICHARD, J.A. _________________________________ KATHLEEN A. QUIGG, J.A.