A.L.S. and C.G.S. v. Minister of Social Development –, 2022 NBKB 176

FDW/123/22 IN THE COURT OF KING'S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF WOODSTOCK Citation: A.L.S. and C.G.S. v. Minister of Social Development – 2022 NBKB 176 Date: 20220921 BETWEEN: A.L.S. and C.G.S., Applicants - and - THE MINISTER OF SOCIAL DEVELOPMENT, Respondent Date of Hearing: August 18, 2022 and September 21, 2022 Date of Decision: September 21, 2022 Before: Justice Richard G. Petrie At: Woodstock, New Brunswick

Appearances: Jonathan Martin for the Applicants Brian A. Barnett for the Respondent D E C I S I O N Petrie, J. (Orally) In the circumstances before this Court I hold the view that it is imperative a decision be made today on a timely basis as to the applicants’ request for interim relief. I acknowledge that with more time I might have been able to deliver a more coherent and grammatically correct decision but I am satisfied that it is sufficient to provide to you right now. I. Introduction 1 .

The applicants have applied by way of an Amended Amended Notice of Application for an order waiving the respondent Minister of Social Development’s (“the Minister”) consent to the adoption of the child, A.J. (born […] 14, 2018), otherwise required by section 76(1)(

b) of the Family Services Act (the “ Act ”). Alternatively, the applicants seek a judicial review of the Minister’s decision made on or about July13, 2022 to revoke its prior consent or approval of the adoption and its refusal to proceed with the adoption. In the further alternative, the applicants seek an order of habeas corpus under the Court’s parens patriae authority and to order the Minister to complete the adoption process. 2 .

The immediate issue facing this Court is the applicants’ motion for an interlocutory injunction requesting an order to prohibit the Minister from placing the child for adoption and the return of the child to be placed into the interim care of the applicant, C.G.S.’s mother, D.L., pending a hearing of the application. Alternatively, they seek an order requiring the Minister to facilitate visits between the child and the applicants. II. Background 3 . The background facts can be fairly summarized as follows: 4 . The applicants are husband and wife, having been married on December 18, 2010.

They reside in Hazeldean, New Brunswick. A.L.S. is an owner/operator transport truck driver. 5 . As a result of the applicants’ inability to have children naturally, they applied to become adoptive parents through the Minister in 2012. Their application faced delays in processing but was first reviewed in 2018. 6 . As part of the process, the Minister conducted a “home study” assessment of the applicants’ home and their suitability as parents, all pursuant to section 67(2) of the Act . That assessment process came back positive and the applicants were approved as adoptive parents on or about October 2019. 7 .

On or about July 22, 2020, A.J.’s younger half-sibling, A.S. (born […], 2019), was placed with the applicants for a “prospective adoption”. The adoption of A.S. was finalized on May 8, 2021 and after and update to the required home study (SAFE

Assessment) was conducted. 8 . The child A.J., who is the subject matter of this proceeding, is under the guardianship of the Minister by virtue of a guardianship order pursuant to

section 56 of the Act by Justice Bruce Noble dated December 4, 2020. 9 . The Minister placed A.J. for adoption with the applicants around March 15, 2021. The Adoption Placement Agreement between the Minister and the applicants with respect to A.J. includes the following provisions (in part): 1. This agreement witnesses that the child has been placed for the purpose of adoption with the Applicant. 2. The applicant agrees: (

a) to undertake responsibility for the proper care, maintenance, support and education of the child from the date of placement; (

b) to notify the Minister immediately in case of any serious illness of the child or if the child should leave the care of the applicant; (

c) to notify the Minister immediately of any change of address and report from time to time to the Minister, as the Minister may require, regarding the welfare of the child; and (

d) to immediately return the child to the Minister if, in the opinion of the Minister, it is in the child’s best interests to be removed from the home of the applicant before an Order of Adoption is made. 3.

The Minister, under the authority of sections 70 and 70.1 of the Family Services Act , by this agreement transfers to the applicant the custody, care and control of the child, but reserves the right to grant or withhold the Minister’s consent to medical treatment of the child, unless the medical treatment is necessary in an emergency to meet imminent risk to the child’s life or health as set out in the Medical Consent of Minors Act . 4.

The Minister agrees that if in the Minister’s opinion it is in the best interests of the child and all the requirements of the Family Services Act have been satisfied, the Minister will consent to the adoption of the child by the applicant and apply to the court for an adoption order effecting the adoption of the child by the applicant. 5. The applicant agrees to abide by the provisions of this agreement until the agreement is either terminated or an adoption has been issued . (My emphasis added) 10 .

Paragraph 8 of the affidavit of A.L.S. describes the two children: 8) [A.J.] and [A.S.] are half biological sisters. They have the same mother but different fathers. They have always grown up together and only periodically lived apart. They are the only two siblings from their biological family that are close in age and with whom they have any relationship. 11 . The applicants say that they were “finally” approved to adopt A.J. on September 15, 2021. It was on this date they say the “process” for adoption “started”. Mr.

Barnett today pointed out that the prior SAFE Assessment had expired by March of 2022 and therefore more steps needed to be taken by the Minister in order to finally approve the applicants. It is not disputed, however, that the process for adoption of A.J. had not yet been finalized and no application for adoption had yet been filed in court.

12. On or about June 23, 2022, both children were placed into protective care as a result of bruising noted on A.J.’s hip, lowerback and buttocks area by a daycare worker, and reported to the Minister. This decision was made after the investigating social workerhad talked with the referral source and had interviewed A.J., who disclosed having been hit three times by A.L.S. for peeing in her bed. 13. It would seem that the applicants have largely maintained throughout that A.J. fell down stairs at home and this resulted inher bruises. Social worker Mr.

MacDougall and his supervisor, Lori Cox, determined the allegations of abuse were “substantiated” atthat time (June 23, 2020). 14. Following a Permanency Planning Committee (“PPC”) meeting on June 30, 2022 between all of the parties, both childrenwere temporarily placed with A.L.S.’s parents until further investigation was completed. 15. It would seem that by June 30, 2022 the RCMP had already determined there was insufficient evidence to support anycriminal charges. Health care professionals had been consulted and some concerns were noted. 16.

During the PPC meeting, in the context of a discussion over discipline of the girls, C.G.S. acknowledged that she hadpreviously, on one occasion, “lightly” spanked A.J. over her clothes. According to the applicants, while the Minister’s representativeexpressed some concern over the “corporal punishment” issue, there was no indication, at that time, that the adoption would be stopped. 17. There was further investigation by social worker MacDougall, who conducted a forensic interview of A.J., who confirmed her father had hit her on her bum after peeing in her bed.

A further interview of A.J. on July 13th by social worker MacDougall disclosedthen that A.J. now alleged it was C.G.S. who had spanked her. She maintained that even after being reminded that she had previouslyindicated it was A.L.S. She also confirmed falling down stairs but was not sure when. 18. On July 13, 2022, the Minister took A.J. out of the care of A.L.S.’s parents and declared they had cancelled the applicants’adoption of A.J. as a result of substantiated abuse concerns. The applicants had not seen A.J. since then, albeit they did have asupervised visit with her in late August. 19.

The applicants maintain that, under protest, they signed a kinship agreement for temporary care in order to maintain thechild A.S. residing with her grandparents. The agreement contains language indicating that there are substantial concerns of physical oremotional abuse. The applicants maintain that if they had not signed that agreement the Minister threatened to place A.S. into fostercare. Again, A.S. is currently placed with the applicants but with C.G.S.’s mother, D.L., living at their home in order to supervise. Thisis said to have been the approved plan by Child Protection. 20.

According to the Minister, A.J. has not been placed for adoption at this time. She is in foster care, currently residing in theMinto area with a foster family with whom she apparently had some prior familiarity. III. Issue 21. The issue to be determined by the Court is whether the moving parties are entitled to an interlocutory injunction. IV. Law and Analysis 22. An interlocutory injunction is an extraordinary remedy. It is not to be granted as a matter of course. It is alsodiscretionary in nature. While the relevant considerations are not formulaic, there are widely accepted legal principles to be applied.

Thetest to be considered for the granting of an interim or interlocutory injunction has been set out by the Supreme Court of Canada in itsseminal case of RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311. The moving partymust demonstrate: (

a) that there is a serious issue to be tried; (

b) that the moving party will suffer irreparable harm if the injunction is not granted; and (

c) that the balance of convenience favors the granting of the injunction

Serious Issue to be Tried 23. In RJR, the Supreme Court directed that, generally, the standard to be applied when considering whether there is a seriousquestion to be tried is not an onerous one. The Judge must make a preliminary, not prolonged, assessment of the merits of the case inorder to determine whether the application is either vexatious of frivolous. 24. While there are several obstacles for the applicants in the circumstances, I am satisfied that as “approved prospectiveadopting parents”, unlike the case in H.C. v.

New Brunswick (Minister of Family and Community Services), 2003 NBQB 196, they atleast have sufficient standing to have filed an application for judicial review and the Court may have jurisdiction to review the Ministersactions (see also N.C. and L.C. v. Minister of Social Development, 2020 NBCA 27). The Supreme Court of Canada decision in Beson v.Director of Child Welfare (NFLD.), (SCC), [1982] 2 S.C.R. 716, and P.T. v. New Brunswick (Social Development),2011 NBQB 318, would also be authority for this proposition. I am satisfied the applicants have raised at least a serious issue to bedetermined. 25.

Furthermore, there is additional recent authority for this as found in J.M.S. v. British Columbia (Director of Child, Familyand Community Services), 2021 BCSC 2104. 28. In RJR-MacDonald, the Supreme Court of Canada described a low threshold for “a serious question to be tried” but held that thechambers judge hearing an injunction application must engage in a preliminary assessment of the merits of the case: p. 337. 29. J.S.’s adoption petition raises a number of legal issues.

One issue is the question of whether the court has the power to make anadoption order in favour of a foster parent outside the placement scheme in the Adoption Act, R.S.B.C. 1996, c. 5, in light of the Court ofAppeal’s decisions in L.M. v. British Columbia (Director of Child, Family and Community Services), 2016 BCCA 367 and M.M. v.T.B., 2017 BCCA 296. Another related issue is that M.J. does not appear to be eligible for adoption, as he is in the CFCSA Director’scare under a temporary custody order. This is a significant obstacle to the relief sought by the petitioner as it pertains to M.J.

Despitethese complications, the Directors conceded that the petition raises a serious issue to be tried. As such, I find that this component of thetest for injunctive relief has been met. Irreparable Harm 26. In RJR, the Supreme Court of Canada has defined “irreparable harm” as the nature of the harm suffered rather than itsmagnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannotcollect damages from the other.

More typical examples include instances where one party will be put out of business by the court’sdecision, where one party will suffer permanent market loss or irrevocable damage to its business reputation. 27. In the case before me, the applicants argue much less material concerns, of course, but raise the repercussions on youngA.J. being separated from her sibling, as well having only limited interactions with persons she is most familiar with, such as theapplicants and the applicants’ parents. These are real concerns to the Court. 28.

There is no question the applicants feel aggrieved by the actions of the Minister. The applicants feel they have been treatedunfairly and that the Minister’s actions in removing A.J. from the care of the prospective “grandparents” for child protection purposesand splitting her off from her sister, were unwarranted. Furthermore, the termination of the adoption process is also most unreasonable. The applicants make the point that in interim injunction applications involving the care of children, best interests of the child is theparamount concern. 29. In P.(D.H.) vs.

P.(P.L.), (NB CA), 2012 CarswellNB 725, (now) C.J. Richard of the New BrunswickCourt of Appeal modified the RJR-MacDonald test for injunctions (or stays) with respect to a child custody matter (pending an appeal)and determined that the question of irreparable harm shall be analyzed from the perspective of the child’s best interests. 30. At paragraph 6, Richard, J.A., at the time, states in part: In child custody matters, the overriding principle is always the best interests of the child: Gordon v. Goertz, (SCC),[1996] 2 S.C.R. 27. In my view, this principle applies as well to a motion to stay a custody order.

As a result, where the stay of acustody order is sought, the standard tripartite test for the determination of the motion must be somewhat modified.

In Lefebvre v. Lefebvre, (ON CA), [2002] O.J. No. 4885 (C.A.) (QL) the second component of the test was re-stated to take into account the nature of the order sought to be stayed. It was determined that the inquiry should be not whetherthe applicant will suffer irreparable harm but whether the child or children, as the case may be, will suffer such harm. In C.B. v.P.C., 2003 ABCA 321 , [2003] A.J. No. 1343 (C.A.) (QL), Russell J.A. modified the second and third components of thetest to reflect the paramount importance of the best interests of the child.

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

No. 477at para. 9 (C.A.) (QL) and Ministerof Community Services v. B.F., 2003 NSCA 125 , [2003] N.S.J. No. 421 (C.A.) (QL). In B.F., Cromwell J.A. discussed thelegal principles in the following words at paras. 13 and 19: A third clarification is necessary because, unlike RJR-MacDonald, this case involves the care and custody of children. It followsthat the decision to grant or deny a stay must weigh and give effect to their best interests. In my view, this requirement leads tosome modification of the irreparable harm aspect of the test.

The primary focus in a case like this should be on the risk ofirreparable harm to the children while, of course, taking due account of the rights of the parties. In addition, given the need forstability and finality in child custody matters, there will generally need to be circumstances of a “special and persuasive nature”,usually connected to the risk of harm to the children, in order to persuade the Court to grant a stay: see, for example, Children’sAid Society of Halifax v. B.M.J. (2000), 2000 NSCA 144 , 189 N.S.R. (2d) 192; [2000] N.S.J. No. 405 (Q.L.) (C.A.

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

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

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

I would add that a finding that a child is at risk of harm because of a custody order will usuallybe equivalent to a finding of the child being at risk of irreparable harm in the sense of the term as set out by Sopinka and CoryJJ. in RJR-MacDonald at p. 341: “Irreparable” refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetaryterms or which cannot be cured, usually because one party cannot collect damages from the other. [paras. 25-30] (Emphasis added) 31.

In P.H.D., supra, Richard, J.A. also accepted the additional argument that there was little risk of harm to the child if theearlier custody (Family Division) decision was stayed. 32. The crux of the applicants position before me is simply that the child A.J.’s adoption process was halted by the Ministerunfairly. Their challenge to that decision and request for the court to waive the Minister’s consent is yet to be determined.

The status quois somewhat complicated by the fact that Child Protection intervened and became engaged in removing these children from the directcare of the applicants, but placed with the grandparents of A.S. and prospective grandparents of A.J., who had been approved caregivers. They argue compellingly that the status quo of returning the child to the applicants’ care under D.L.’s supervision poses less risk and

recognizes A.J.’s best interest of regular contact with her biological sister but also with respect to persons she would be familiar with. The child protection issues are not risky, at least given that the children are in a third party (grandparents) supervised care and the Minister is actively involved. 33 . Again, A.J. remains under guardianship of the Minister and is currently in foster care and residing in Minto by way of an approved foster care provider. 34 . The Minister makes the argument that further disruption to the child is what is most at risk here. This is a very legitimate concern.

Again, I have already determined though that there is a serious issue to be decided by way of the applicants’ application. In my view, especially in light of the New Brunswick Court of Appeal’s decision in N.C. and L.C. , supra, the applicants face an uphill battle, but it is not at all a foregone conclusion. 35 . The New Brunswick Court of Appeal decision in N.C. and L.C. , supra, might, at first glance, appear to be determinative of the unavailability for the applicants to judicially review or obtain other related relief in the case at bar.

However, and at least tentatively, I do not hold that view, in particular at this stage of the proceedings. 36 . In N.C. and L.C. the challenge before the Court of Appeal also dealt with the criteria for adoption under Regulation 85-14. In L.C. and N.C. , the Court found the criteria for adoption set out in Regulation 85-14 to be mandatory minimum qualifying criteria in order for a person to be able to adopt a child. In N.C. and L.C. an applicant for adoption was found ineligible to adopt as she had been convicted of fraud, which was a specified offence under section 3(1)(e.6) of Regulation 85-14.

The New Brunswick Court of Appeal upheld that determination. It was not contested that the applicant had been so convicted. The essence of the decision was that, in those circumstances, the Minister had no choice and there was therefore no decision or exercise of discretion to be reviewed in the circumstances. 37 . However, in N.C. and L.C. at paragraph 37 the Court appears to recognize the possibility of certain qualifying criteria needing to be assessed and decided upon by the Minister. In other words, circumstances where the Minister may have to exercise a discretion. 38 .

In the case before me, the applicants say that the alleged applicable disqualifying criteria, being a determination of a substantiated finding of child abuse, is one such example. They also point out that that determination was not made by the police but rather by the Minister. They say that it is a decision that must be subject to judicial review for either breach of procedural fairness and/or reasonableness, especially when, in this case, the applicants had previously been expressly approved as prospective adopting parents by the Minister.

As authority for judicial review being “available”, I wish to again also cite Beson , supra. Balance of Convenience 39 . Notwithstanding my compassion for A.L.S. and C.G.S., my deep concerns for A.J., and my appreciation for Mr. Martin’s able arguments here that A.J. can be returned to their interim care with supervision pending the hearing of the application, I have determined with much hesitancy, that that is not the best course of action for the child. 40 . There are two main reasons for my decision to regrettably reject the applicants’ interim relief request.

First and foremost, the hearing of this application, at my direction, has been expedited and is now set for just under one month’s time. While I have already stated the applicants’ case raises a serious issue, it is not one that I have determined to be a “given”, at least not at this stage.

Indeed, at this stage I would characterize the ultimate outcome to perhaps slightly favour the Minister given the various authorities before me, which, and I say this in the most general way, in New Brunswick seem to favour the Minister in situations of adoption of children, i.e., the Minister’s decisions or discretion in making decisions with respect to adoption. 41 .

Given the relatively short period before the hearing of the application, I am very concerned over the potential for the further disruption to this child’s stability and continuity should she be moved back with A.L.S. and C.G.S. only to be again moved out of the home in a small number of weeks’ time. To this degree, I disagree with Mr. Martin’s argument, in his brief, that there is only upside for A.J. to return for this rather short period of time. 42 .

While I do recognize her safety can likely be accommodated by an interim return, I am very fearful of the impact on her if she has to experience yet another drastic change in her life after a short period and after the hearing. I understand that A.J. had some familiarity with the foster family with whom she currently resides. I recognize there is some evidence of perhaps minor regression in terms of her toilet training. However, my grave concerns, are for her emotional and psychological sense of stability and security should

she be subject to a whipsawing or boomerang change in her day-to-day care in a short period of time. This could further cause unnecessary stress, anxiety and confusion for this little girl. I acknowledge that perhaps if the period waiting for hearing were extended I might have felt differently. I also acknowledge the importance of her maintaining regular contact with her sister, A.S., and with A.L.S. and C.G.S. I believe this can be accomplished in a different way. 43 .

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

section does not seem to distinguish between interim or permanent specific performance relief and I do note from the decision of J.M.S. out of British Columbia, that the judge there similarly found. 44 . In these circumstances, I must, with regret, and with some uncertainty, reject the applicants’ request for interim relief. I will, however, order in the interim the Minister to ensure regular contact between A.S. and A.J., and with A.L.S. and C.G.S., under appropriate supervision as much as reasonably possible and which should be no less than once a week until we return. I will also order that A.J. not be placed for adoption pending the outcome of this application hearing.