D. v. Nova Scotia (Community Services), 2015 NSSC 74

SUPREME COURT OF Nova Scotia Citation: D. v. Nova Scotia (Community Services) , 2015 NSSC 74 Date: 2015-03-10 Docket: CFSA 093109 Registry: Kentville Between: In the matter of the Application for Adoption under the Children and Family Services Act of the person whose birth is registered as 2010 D and A v Minister of Community Services AND M v Minister of Community Services Judge: The Honourable Justice Gregory M. Warner Heard: December 1, 2014, in Kentville, Nova Scotia Counsel: Paul Morris, for Mi’kmaw Family and Children Services Jennifer Reid, for D and A Susanne M.

Litke and Thomas Saunders (student), for M R. Michael MacKenzie and Zachary Chisholm A/C, for the proposed adopting parents Angela Swantee, for the Minister of Community Services By the Court: This standing proceeding [ 1 ] A grandmother and foster parents seek standing as parties or intervenors to contest the adoption application of a four-year old

Millbrook First Nation child (“B”). [ 2 ] The evidence consists of the contents of the adoption file, some records of the Mi’kmaw Family and Children’s Services Agency (“Agency”) and seven affidavits: for the grandmother (“M”), her own affidavit and that of Elizabeth Paul, the director of health services for the Millbrook Health Centre; for the foster parents (“D” and “A”), their own affidavits and those of Robert Gloade, Chief of Millbrook First Nation, and of June Bruce, a foster parent involved in the Federation of Foster Families; and for the Agency, Lenora Paul, Assistant Executive Director of the Agency, who was acting Executive Director at the times material to this proceeding.

The evidence of Elizabeth Paul, Robert Gloade and June Bruce, relate primarily to representations made by the Agency at a meeting on April 29, 2014. Only Lenora Paul was cross-examined. [ 3 ] The motions for standing were opposed by the Agency, the Minister of Community Services and the proposed adopting parents. While only the Agency filed an affidavit (of Lenora Paul) and written submissions, the Minister and proposed adopting parents endorsed the Agency’s opposition to standing for the grandmother and foster parents. Background [ 4 ] B was born in late 2010.

She was apprehended from her mother, pursuant to a protection application filed a few days after her birth. B remained in the hospital for medical reasons for about three months. M had extensive interaction with B while she was in the hospital. [ 5 ] Upon discharge from the hospital in February 2011, B was placed in a foster home. On March 7, 2011, the Family Court varied the Temporary Care and Custody Order to a Third Party Supervision Order, permitting B to be placed in the care of M in the Millbrook First Nation community.

B remained with M, who at that time also had care of two other grandchildren, until March 2, 2012. [ 6 ] On March 2, 2012, B was removed from M’s home and placed in the foster care of D and A. They too lived in the Millbrook First Nation community; also, they had provided placements, foster care and respite care for the Agency for 17 years. D and A had also adopted two children from the agency in 2011. [ 7 ] D and A knew B from birth and, during the time that they parented B, permitted M to have extensive access with B. The intention of D and A was to adopt B. They had the approval of M to do so.

They began the adoption process with the agency in September 2012. [ 8 ] On December 12, 2012, an Order for Permanent Care and Custody was granted to the Agency. [ 9 ] In November 2013, D was advised by the Agency that past allegations against her had been received, investigated and found to be unsubstantiated. [ 10 ] However, on April 14, 2014, D was advised by the Agency that she would not be able to adopt B and could no longer provide care for foster or respite children under the age of 13 years.

D said that no reason was given for this advice; she was told she would have to make a FOIPOP Application for any explanation. She was advised during that meeting that B would be placed for adoption elsewhere. [ 11 ] D’s affidavit states that she asked for a “stay” of this decision while she appealed it. She asked for immediate access to her file. [ 12 ] On April 22, 2014, B was removed from D and A’s home. [ 13 ] On April 29, 2014, two meetings occurred at the Millbrook First Nation community with the Agency. The first meeting was with D.

At a second meeting, several other parties attended, including Lenora Paul (with three other agency workers); Elizabeth Paul; June Bruce, a community support worker and representative of the Federation of Foster Families; and, Millbrook Chief Robert Gloade.

The meetings were with respect to concern over the Agency’s removal of B from the community and, in particular, from the care of D and A. [ 14 ] In their affidavits, D, Chief Robert Gloade, Elizabeth Paul, and June Bruce state that the questions asked of the Agency were not answered and another meeting was scheduled to take place after disclosure pursuant to FOIPOP Applications was provided.

The affiants affirm that the Agency promised that it would not proceed with the adoption process for B with the new placement and that any application would be put on hold while their discussions were ongoing. [ 15 ] Lenora Paul was cross-examined with regards to the affiants’ statements of the Agency’s representations at the April 29 th meeting. Her answers were vague and inconsistent. She purported not to be certain of what promises were made on April 29 th .

Where her evidence differed from the affidavit evidence of Chief Robert Gloade, Elizabeth Paul, June Bruce and D with respect to the promises made, I accept the clear affidavit evidence. [ 16 ] On May 15, 2014, M filed a FOIPOP Application with the Agency. On May 20, 2014, D filed a FOIPOP Application with the Agency. On June 27, Lenora Paul, acting Executive Director of the Agency, wrote to the Chief and to D. She acknowledged the meeting of April 29 th ; she advised that she had reviewed the agency file and agreed with the Agency’s decision to place B elsewhere.

She ended her letter to D as follows: In regard to your FOIPOP request, your file has been forwarded to the Agency’s lawyer at Patterson Law for vetting. Following the completion of such, it will be forwarded to you. I trust this information is helpful to you and should you seek further clarification through a file review by our Child Welfare Specialist, your concerns will be addressed. [ 17 ] In early July 2014, copies of the Agency’s materials requested in the FOIPOP Applications by M, D and A were delivered to

them. The materials were heavily redacted. [ 18 ] D and A formed an intention to apply to the Family Court for a termination of the Order for Permanent Care and Custody. [ 19 ] In the meantime, M, D and A, together with the Millbrook community, continued to communicate their concerns about the placement of B outside the Millbrook community. [ 20 ] Chief Robert Gloade attended a meeting of the Board of Directors of the Agency held at Dartmouth on August 1, 2014, to address his community’s concerns.

During a break in that meeting, the Chief and M’s counsel became aware that, contrary to the Agency’s representation at the April 29 th meeting at Millbrook, a Notice of Proposed Adoption had already been filed respecting B. The Notice had, in fact, been filed with the Minister of Community Service on July 14, 2014. No prior notice had been provided to Chief Gloade, M, D or A. [ 21 ] The applicants before this court filed a motion in the Family Court to terminate the Permanent Care and Custody Order of December 12, 2012.

The Agency objected to the motion on the basis that the Family Court had lost jurisdiction once the Notice of Proposed Adoption had been filed with the Minister on July 14, 2014. The Family Court agreed and dismissed the applicants’ application. [ 22 ] The applicants note that the timeline for filing a Notice of Proposed Adoption and for adoption is set out in s. 76(1) and (2) of the Act , which reads: 76(1) Except as herein provided, where the person sought to be adopted is under sixteen years of age, the court shall not make an order for the child’s adoption unless (

a) notice of the proposed adoption has been given to the Minister not later than six months before the application to the court for an order for adoption, or where one of the applicants for adoption is a parent or relative of the child, notice of the proposed adoption has been given to the Minister not later than one month before the application to the court for an order for adoption; (

b) notice of the hearing of the application and a copy of the application and all material to be used in support of it with respect to a child in permanent care and custody or a child that is the subject of an adoption agreement have been filed with the Minister not later than one month before the date of the application; and (

c) the child sought to be adopted has for a period of not less than six months immediately prior to the application, lived with the applicant under conditions that, in the opinion of the court, justify the making of the order.

(2) The Minister may, by certificate in writing, shorten the length of any notice or the period of residence required by subsection (1) or dispense with any notice or period of residence. [ 23 ] In this case, it is apparent that the Minister consented to a significantly shortened time period. The Notice was filed less than three months after B was placed with the proposed adopting parents. The applicants claim that the shortened notice period was intentional and intended to prevent the applicants, upon receipt of the FOIPOP Application materials, from applying to terminate the Permanent Care and Custody Order.

Issues [ 24 ] The primary issues are: 1. Whether the law permits the applicants to gain standing in this adoption proceeding; and, 2. If so, should the court grant them standing? [ 25 ] The Agency raises three other preliminary issues: 1. The scope of the relief sought by the applicants; 2. The admissibility of two opinion reports; and, 3. The admissibility of parts of the affidavits filed on behalf of the applicants.

Preliminary Issue #1 [ 26 ] M seeks leave for an order granting her party standing in this proceeding, seeking to set aside the Notice of Proposed Adoption and granting her access to B or, alternatively, seeking to be joined as an intervenor. [ 27 ] D and A seek leave for an order granting them party status to: (1) contest the proposed adoption as not in the best interest of B; (2) quash by certiorari the Minister’s decision to discontinue their adoption planning process and removal of B from their home; (3) order return of B to them;

(4) quash the Minister’s decision to consent to the proposed adoption in this proceeding; (5) require the Minister to receive and consider their proposed adoption of B; and, (6) strike the Notice of Proposed Adoption, thereby staying this proceeding and permitting them to apply to the Family Court for determination of the Permanent Care and Custody Order. [ 28 ] I agree with the Agency that, if I find that the court has jurisdiction and should grant either applicant standing in this proceeding, the jurisdiction of this court is limited to determining whether the proposed adoption is in the best interests of B and, if not in the best interests of B, to refuse the adoption application, effectively terminating the procedure for the adoption and the Notice of Proposed Adoption.

Preliminary Issue #2 [ 29 ] In support of her application, M filed opinion reports of Elizabeth Shein dated September 22, 2014, and Diana Robichaud- Smith dated September 26, 2014. [ 30 ] In an oral decision early in the hearing on December 1 st , this court concluded that these opinion reports should be excluded from considerations for the reasons given orally. These reasons included: the fact that the reports failed to comply with CPR 55.04 ; and, further, that the opinions contained in

part irrelevant (to the issue of standing) and in part generalized pejorative observations without any identified objective factual foundation. Preliminary Issue #3 [ 31 ] The Agency objects to what it submitted was irrelevant evidence (or, alternatively, evidence of very limited relevance), hearsay evidence and opinion evidence, in virtually all of the affidavits.

In the interest of time, the Agency did not seek to have the affidavits struck or edited, but rather asked the court to ignore inadmissible, irrelevant, hearsay and opinion evidence. [ 32 ] While the court does not agree with every example of irrelevant, hearsay or opinion evidence claimed by the Agency in its written prehearing brief, I generally agree that most of the affidavits contain some hearsay and opinion evidence that I have ignored for the purposes of this application.

Relevance is in the eye of the beholder; in my view, most of the affidavit evidence was either relevant to this motion or proper context for the motion. The evidence relied upon by the court for the purpose of this motion is the evidence referred to in the decision. Issue #1 – Whether the law permits the Applicant to gain standing in this adoption proceeding? D and A’s submissions [ 33 ] D and A seek to be joined as parties pursuant to CPR 35.08 or as intervenors pursuant to CPR 35.10 . These rules read: 35.08

(1) A judge may join a person as a party in a proceeding at any stage of the proceeding.

(2) It is presumed that the effective administration of justice requires each person who has an interest in the issues to be before the court in one hearing.

(3) The presumption is rebutted if a judge is satisfied on each of the following: (

a) joining a person as a party would cause serious prejudice to that person, or a party; (

b) the prejudice cannot be compensated in costs; (

c) the prejudice would not have been suffered had the party been joined originally, or would have been suffered in any case.

(4) Despite Rule 35.08(1), a judge may not join a person as a plaintiff, applicant, applicant for judicial review, or appellant, unless the person consents.

(5) Despite Rule 35.08(1), a judge may not join a party if a limitation period, or an extended limitation period, has expired on the claim that would be advanced by or against the party, the expiry precludes the claim, and the person protected by the limitation period is entitled to enforce it.

(6) A judge who joins a person as a party to a proceeding may give directions for the party’s participation in the proceeding, including any of the following: (

a) an amendment to the heading; (

b) a process by which the party may give notice of a claim, defence, or ground; (

c) a process by which each other party may respond to the notice;

(

d) requirements for the new party to make disclosure and be discovered. . . . 35.10

(1) A person who is not a party to a proceeding and wishes to be joined may move for an order joining the person as anintervenor. [N.S. Gaz. 2013.1.1003]

(2) A judge who is satisfied that the intervention will not unduly delay the proceeding, or cause other serious prejudice to a party,may grant the order in one of the following circumstances: (

a) the person has an interest in the subject of the proceeding; (

b) the person may be adversely affected by the outcome of the proceeding; (

c) the person ought to be bound by a finding on the determination of a question of law or fact in the proceedings; (

d) intervention by the person is in the public interest.

(3) Unless a judge orders otherwise, an intervenor must comply with all Rules applicable to a defendant, including the Rules in

Part 5 - Disclosure and Discovery.

(4) Unless a judge orders otherwise, an intervenor is entitled to all of the procedural rights of a party.

(5) The judge may make an order restricting an intervenor’s procedural duties and rights, and generally, regulating the intervenor’sparticipation in an action or application. [34] Nothing in CPR 35 expressly precludes the rule applying to motions for standing in an adoption proceeding. The rules applyto adoption applications by reason of CPR 5 (applications) and CPR 61 (adoptions). [35] D and A submit that the test for granting standing requires them to show that they have an interest in the subject matter.

Ifthey do, there is a presumption in favor of standing rebutted only by the circumstances in CPR 35.08(3) (See: Parker MountainAggregates Ltd v Nova Scotia, 2010 NSSC 277, at para. 17). [36] They claim to have been adversely affected by the representations of the Agency on April 29, 2014, and the Minister’sconsent to shorten the timelines for this adoption application. Balanced against these factors is the prejudice to the child caused by thedelay in the adoption proceeding if standing is granted to them.

The applicants do not address the difficulty arising from the requirementin CFSA, s. 77(1), that adoption proceedings be held in camera (reinforced by CPR 61.06). [37] D and A also submit that the CFSA provides for them being granted status.

They cite the analysis of the Nova Scotia Court ofAppeal in Children’s Aid Society of Shelburne County v IC, 2001 NSCA 108, where foster parents were granted status in a childprotection proceeding, and in which the court analyzed the factors for determining whether to grant leave to add foster parents as parties. [38] D and A submit that they are the psychological parents of B, who resided with them from about the age of one to three-and-a-half years.

But for the Agency’s broken promise and the Minister’s shortening of the normal timelines for the consent to adoption, theFamily Court would have had jurisdiction to hear the application filed to terminate the Permanent Care and Custody Order. [39] With respect to adoption proceedings under the CFSA, they submit that there is no provision allowing or disallowing a personfrom applying for status.

Section 36 of the CFSA expressly applies only to ss. 32 to 49 of the Act and not to the sections of the Act dealingwith adoption. [40] Alternatively, they submit that the court can exercise parens patriae jurisdiction.

Counsel cites cases outlining thisjurisdiction: Beson v Director of Child Welfare, (SCC), [1982] 2 SCR 716; R v Nova Scotia, 2008 NSSC 20, at paras. 19to 22; Minister of Community Services v AB, 2011 NSSC 114 (in which the court held that a legislative gap existed); Children’s AidSociety of London and Middlesex (Re), 2010 ONSC 1348, at paras. 14 and 16 to 18; DWH v DRJ, 2013 ABCA 240, at para. 61; and DJNv Canada, (BCCA), at para. 32. Counsel distinguishes Nova Scotia v LW, 2006 NSSC 244, on the basis of the court’sfinding that there had been no procedural unfairness to the foster parents.

The court notes that only three of these cases involved adoptioncases – Beson, R v Nova Scotia, and Middlesex, and the only case involving the issue of standing was R v Nova Scotia (which involvedthe standing to intervene by natural parents with a legal access right for the purpose of maintaining their access). [41] Counsel submits that part of the obligation upon the court in determining whether to approve an adoption involves the court’ssatisfaction that the adoption is proper and in the best interests of the person to be adopted (CFSA, s. 78(1)).

Section 3 of the CFSAoutlines the factors for determining the best interests of a child. Eleven of the fourteen factors enumerated in s. 3(2) are applicable toadoptions. It is not the Minister’s unfair determination of the child’s best interests that governs; rather, it is the court’s duty to be satisfiedthat the adoption is in the best interests of the child. [42] The analysis has been confirmed by the Nova Scotia Court of Appeal in several decisions, including: Nova Scotia v TH, 2010

NSCA 63, at paras. 55 and 60; Children’s and Family Services of Colchester County v KT, 2010 NSCA 72, at para. 36; and, PH v NovaScotia, 2013 NSCA 83, at para. 105. [43] In KT, TH and PH, the issue was access after a Permanent Care Order, not standing in an adoption proceeding. [44] D and A submit that this court cannot fulfill its obligation to be satisfied that the factors for determining B’s best interests,particularly in respect of: the importance of the continuity of B’s care; the bonding that exists between B and B’s foster parents; B’sphysical, mental and emotional needs; and B’s cultural, racial and linguistic heritage, unless they (the foster parents) are given standing. [45] The standard of procedural fairness owed to the foster parents was a central consideration in TG v Nova Scotia, 2012 NSCA43.

In that case, the Minister sought to remove the child from foster parents for adoption. Adoption proceedings had not commenced. Inthat case, the fact that the foster parent was Caucasian and the adoptive parents of mixed race, as was the child, determined the issue. [46] In TH supra, at para. 38, the court wrote: Placement is a “matter” under s. 2(2), meaning the Minister’s paramount consideration must be the child’s best interests. But that doesnot mean the court has a plenary authority to pre-empt the exercise of the Minister’s functions as legal guardian.

This court has said that,unless there is bad faith or breach of the duty of fairness, the CFSA intended that placement decisions for children in permanent care andcustody rest with the Minister, under the Minister's status as guardian under s. 47(1). N.N.M. v. Nova Scotia (Minister of CommunityServices), 2008 NSCA 69, ¶ 63-74, 86 and 98 and authorities there cited. Judge Levy’s decision referred to s. 47, but did not mentionN.N.M. or any authority that discusses the CFSA. [47] D and A state that the Agency acted in bad faith. D and A diligently completed every step of the process asked of them toadopt B.

D and A were advised at one point of vague allegations against them, which the Agency purported to discount, but in the end, inApril 2014, they were told, without reasons, that they could not adopt B. B was almost immediately removed from their home. Theywere denied reasons and told to apply for the Agency’s file through the FOIPOP’s process. They were promised that no action would betaken until the FOIPOP process was complete. The FOIPOP disclosure, when received, was heavily redacted.

At the same time that itwas released, the Minister consented, on shortened notice, to the adoption by the present adopting parents, the shortened notice beingless than the normal six-month notice provided for in the Act, and a Notice of Proposed Adoption was given. [48] The applicants applied to the Family Court to terminate the Permanent Care Order.

The Agency’s defence to the application toterminate the Permanent Care Order was that the Family Court had lost jurisdiction upon the Minister’s consent to adoption by thepresent proposed adoptive parents, and they had given a Notice of Proposed Adoption. [49] D and A state that by reason of the Agency’s bad faith conduct – its broken promise to wait and expedited consent to theproposed adoption, D and A are unable to present evidence of what is in B’s best interests unless this court grants them standing in thisadoption proceeding. [50] They point out that issuance of an adoption order is final (See: K v HMTQ (BC), 2003 BCSC 1248).

If this court does notgrant them standing, D and A lose the opportunity to present evidence as to B’s best interests. In K v HMTQ, the court reviewed Speck vSpeck, (BC CA), [1983] BCJ No. 22 (BCCA), which decisions appear to acknowledge that courts can consider badfaith conduct when receiving submissions and evidence to assess a child’s best interests in adoptions proceedings. M’s submissions [51] M seeks standing to contest the Notice of Proposed Adoption and to gain access to B.

As noted earlier, this court has nojurisdiction to grant M access to B. [52] M’s submissions are similar, in effect, to those of D and A. CPR 35 sets out when and how a party (CPR 35.08) or intervenor(CPR 35.10) may be added. The provisions defining parties in CFSA, ss. 36 and 37, do not apply to adoption proceedings.

The CFSA is,in effect, silent on when and how an interested party may be added. [53] M raised B in the first year of her life in a kinship placement and, during the foster home placement, had extensive access withB, by which access she involved B in her First Nation community and introduced her to its culture and language. [54] M acknowledges that the test for gaining status in child protection proceedings involves “compelling circumstances”.

This testis described in: Children’s Aid Society of Shelburne v IC, 2001 NSCA 108, at para. 27; Halifax v RB, 2003 NSCA 49, at para. 40, andCM v Nova Scotia, 2011 NSSC 222, at para. 31. [55] M’s intended participation is to provide evidence that the proposed adoption is not in B’s best interests.

Her uniqueknowledge and involvement with B and the Agency since birth are, she submits, compelling circumstances. [56] M submits that, pursuant to s. 78(1)(c), it is the court that must be satisfied that the adoption is both proper and in B’s bestinterests. “Proper” includes the process by which the proposed adoption is before the court; “best interests” refer to 11 of the 14 criteriaset out in s. 3(2) of the CFSA.

M claims to have a special interest and knowledge with respect to both aspects of the analysis. [57] With respect to the issue that delay is a consideration in determination of whether to add parties, M submits that, but for theexpedited procedure followed in this proposed adoption, no Notice of Proposed Adoption would have been issued before the FamilyCourt had the opportunity to hear the application to terminate the Permanent Custody and Care Order. Furthermore, the rationale fordelay as a factor in assessing applications for standing is a concern about B’s stability.

In this case, any delay caused by M’s, or D andA’s, participation need not result in B being placed with strangers in the interim. [58] In NNM v Nova Scotia, 2008 NSSC 72, the court found that the Minister’s decision respecting a proposed adoption and theprocess by which the decision was made had been unfair to, and without proper input from, the foster parents. The court exercised

parens patriae jurisdiction to keep the children in the foster parents’ care while a separate agency reviewed in a procedural fair way all ofthe relevant factors in determining the best adoption plan for the children. Agency’s submissions [59] The Agency submits that evidence of the relation between B and the respective applicants is not relevant to whether theapplicants can or should be granted standing. [60] CFSA does not entitle the applicants to standing in an adoption proceeding.

The complete legislative scheme for adoptions iscontained in ss. 106 and 67 to 87, CFSA. [61] Sections 106(4) and 77 limit the participation of non-parties. [62] The only consent required for adoption of a child subject to an order for permanent custody and care, and the only one entitledto notice of the proposed adoption is the Minister: not a parent, foster parent or grandmother. Who has rights and responsibilitiesrespecting adoptions is tightly controlled.

Unlike other sections of the CFSA (s. 36), the adoption provisions do not statutorily permitothers to be parties or intervenors. [63] The Agency opposes the applicants’ suggestion that this amounts to a legislative gap that may be addressed by CPR 35 or theparens patriae jurisdiction of the court. [64] The Agency submits that the applicants’

interpretation of R v Nova Scotia, 2008 NSSC 20, is in error.

Justice Boudreau heldat paras. 12 and 13 that the basis for intervention in an adoption proceeding must be found in the CFSA, not the CPRs, even if CPR 35.10is broader in scope than CPR 8.01, the rule that was considered by the court in R v Nova Scotia. [65] The Agency agrees that this court has parens patriae jurisdiction but, pursuant to Re Eve, (SCC), [1986] 2SCR 388, at paras. 73 and 77, that jurisdiction can only be exercised where it is necessary for the protection of the person for whosebenefit it is exercised. [66] The parens patriae jurisdiction does not equate to the general supervisory jurisdiction over the discretionary “best interests”decisions of child protection agencies.

This court cannot intervene in the Agency’s decision “simply because the applicants ask it to”.Beson supra decided that this court has no supervisory role to “double check the appropriateness” of the Agency’s discretionarydecisions. The court’s only jurisdiction is through judicial review or by parens patriae - if a legislative gap exists. [67] The Agency submits that there is no legislative gap in the CFSA respecting standing in an adoption proceeding. It cites:Children’s Aid society and Family Services of Colchester County v DT, 1992 CarswellNS 544 (NSCA).

At paragraph 31, the court wrote: … Strong policy considerations demand that we recognize the adoption legislation as a complete code and that collateral proceedingstaken to interfere with the process of adoption be discouraged. Adoptive parents must have confidence in the system, which confidenceincludes freedom from fear of such attacks. A consideration of the entire scheme of the legislation, as well as its predecessor legislationleads to the conclusion that the adoption provisions in the Act constitute a complete and comprehensive code respecting adoptionmatters. Mr.

Justice Hall erred in finding a gap in this legislative scheme. [68] Counsel distinguished the facts in R v Nova Scotia supra, cited by the applicants. In that case, the court was required todetermine whether it was in the best interests of the child that the natural parents’ existing right of access continue post-adoption.

In thiscontext, the Agency submits that “it was appropriate for the court to exercise its inherent jurisdiction to assure that procedural fairnessand the principles of natural justice are followed” (para. 28). [69] The Agency notes that unlike the applicants in R v Nova Scotia supra (who did not seek to prevent the adoption), theapplicants in this case have no existing rights.

It argues that in R v Nova Scotia supra, a legislative gap existed as to how the existingright of access could be determined without giving the parents standing. [70] The Agency asks the court to reject the applicants’ submissions that this court cannot satisfy itself that the adoption is properand in the best interests of the child unless they are granted standing. Such would mean that no adoption could proceed without everyonewith relevant information being heard. Such would be contrary to the requirement that the court give deference to Agency decisionsrespecting a child’s best interests. The Agency cites H(

P) v Nova Scotia, 2013 NSCA 83, at paras. 110 to 112; NNM supra at para. 38;and, G(

T) v Nova Scotia, 2012 NSCA 43, which decision overturned a trial court granting of foster parent standing in a judicial reviewapplication because of a lack of procedural fairness. [71] Important procedural considerations respecting the adoptive process include the anonymity of the adoptive parents and thevery limited circumstances and persons who are entitled to be involved in the process. The Agency cites Mi’kmaw Family ChildrenServices v I(L), 2012 NSSC 412, at para 75. [72] Granting standing in this case will effectively terminate the anonymity component of the process.

Even if a legislative gapjustifying the exercise of parens patriae did exist in this case, the court should not grant standing to the applicants. The court cannotgrant the applicants the relief they seek. The court cannot direct the Agency to make a particular decision (Nova Scotia v TH, 2010NSCA 63, at paras. 37 to 38, and G(

T) supra, paras. 137). [73] The Agency acknowledges that if the D and A had filed a notice for judicial review (they did not), the court might havedirected the Agency to reconsider their request to become the adoptive parents of B, but the court still could not direct the Agency toconsent to their request for adoption of B. [74] D and A’s application constitutes a collateral attack on the Permanent Care and Custody Order, which application was madefour months after they were informed of the Agency’s decision to place B in a different adoption placement, and two months after they

were advised that the Agency’s agreed upon review did not alter the original decision. Applicants’ reply submissions [ 75 ] The applicants disagree with the Agency’s view of B’s best interests. The applicants describe their understanding of who the proposed adoptive parents are: that the proposed adoptive parents do not live in a First Nation community nor speak the Mi’Kmaw language.

The Agency directs the court to the fact that, through the proposed adoption, B would be placed with the same parents who previously adopted B’s sibling, and that at least one of the prospective adopting parents possesses Mi’Kmaw heritage. [ 76 ] The Agency submits that it has considered the best interests of B and, if the court has jurisdiction to grant standing to any of the applicants, that it should not do so. Analysis [ 77 ] Can this court grant standing to M, D or A? And, if so, should it? [ 78 ] M, D and A submit in a nutshell: i.

CPR 35 authorizes the court to join a person as a party or intervenor in any proceeding. Nothing in CPR 61 (Adoption Application) or in the CFSA expressly precludes their joinder. ii. The test of whether they should be joined is whether they have an interest in the proceeding or are adversely affected. iii.

Section 36 of the CFSA , which limits who may become a party, applies only to ss. 33 to 49 of the Act , that is child protection proceedings, and not to the adoption sections (ss. 67 to 87 and 106) of the Act . iv. Alternatively, the court has parens patriae jurisdiction, which it should exercise in these circumstances.

Legislative intent [ 79 ] A determination of who may be a party or intervenor in an adoption begins with the relevant legislative provisions: ss. 67 to 87 and 106 of the CFSA . [ 80 ] Sections 106(4) and 77(1) provide that adoptions are conducted in private with only those persons present whom the court permits. They are not, by statute, public proceedings nor intended to be so because of their nature. [ 81 ] The only consent required for an adoption of a child subject to a Permanent Care Order is the Agency or Minister.

In other circumstances (where a child is not under Permanent Care Order), the only other consent necessary is that of a parent or parents. The definition of a parent in s. 67(1) specifically does not include grandparents, and there is no reference in the definition

section of a parent that might lead to an inference that it includes foster parents. [ 82 ] In the case of a child in permanent care, only the Minister is required to receive notice of the proposed adoption. [ 83 ] These provisions are important in the analysis of the legislative intent. [ 84 ] These provisions are unlike those provisions of the CFSA, such as respecting child protection proceedings, that specifically permit participation of other persons, including those in the position of the applicants in these motions. [ 85 ] I conclude that the legislation does not authorize persons, such as the applicants in these motions, to be parties or intervenors in an adoption proceeding. [ 86 ] Many cases cited to the court related to child protection proceedings that had not reached the stage where the child had been placed for and was residing in the home of the persons who had given a notice of proposed adoption.

There is a significant contextual difference between those matrices and those respecting adoption proceedings that are underway. Section 48(4) CFSA reflects this legislative intent. [ 87 ] CPR 35 cannot create authority to join persons as parties or intervenors contrary to the relevant legislation ( See: R v Nova Scotia , 2008 NSSC 20 , at paras. 12 and 13 ).

Parens patriae jurisdiction [ 88 ] M, D and A submit that the absence of an express prohibition on other persons becoming parties or intervenors in adoption proceedings authorizes the court to exercise its parens patriae jurisdiction. [ 89 ] The Agency acknowledges that parens patriae jurisdiction does exist, but it is not unlimited. It refers the court to Re Eve supra , at paras. 73 and 79 – parens patriae jurisdiction is a discretion to be exercised cautiously and only where necessary for the protection of the best interests of the protected person, not the interests of other persons.

As noted in Beson supra , the exercise of jurisdiction “cannot be resorted to if the action the court is being asked to take is within the discretion of the local authority … [it] is always available to fill gaps or to supplement the powers of the local authority”. The ‘local authority’, in this case, is the Agency. [ 90 ] I agree with the Agency that the inclusion and exclusion provisions of the CFSA respecting standing in proceedings are the result of policy decisions and statutory intent. There is no legislative gap in the CFSA respecting adoption proceedings. (See: Re T(D) ,

1992 CarswellNS 544 (NSCA) at paras. 27 , 28 and 31). [ 91 ] As Justice Hamilton noted at para. 38 in NNM v Nova Scotia , 2008 NSCA 69 , a decision that reversed 2008 NSSC 72 , the trial judge acknowledged that there was no legislative gap and that the exercise of parens patriae jurisdiction was on the basis of Beson ’s second alternative – judicial review for a suggested breach of a duty of procedural fairness to the foster parents. What stands out from a review of NNM , both trial and appellate decisions, is that the application for standing did not arise in the same context as in this case.

It appears that, unlike the case at bar, the proceedings in NNM had not reached the stage described in s. 48(4) of the CFSA where the child had been placed and was residing in the home of the persons who had given notice of proposed adoption by filing the notice with the Minister. [ 92 ] The court’s obligation to satisfy itself that the adoption is proper and in the best interests of the person being adopted (s. 78(1) (c)) does not imply that anyone with information about the best interests of the child, or who may be affected by the Agency’s determination, is to be given standing.

Procedural fairness issue [ 93 ] The Agency’s duty respecting procedural fairness to persons like M, D and A, and its general obligation in respect of adoption proceedings was central to the Nova Scotia Court of Appeal decision G(

T) supra . Standing was not an issue before the court in that case because the applications by competing potential adoptive parents had been taken before a notice of proposed adoption was filed with the Minister. [ 94 ] The court’s conclusion in G(

T) supra as to the legislative intent respecting the adoption process is thoroughly summarized at para. 155. The process does not permit the supervising court to enter into a redetermination, as between competing adopting parents, of what might be in the best interests of the child. The decision states in clear language the relevant parameter of the court’s inquiry. Leave to appeal to the Supreme Court of Canada was denied. [ 95 ] The focus of M’s request for standing was for the purpose of preserving her involvement with B.

The focus of D and A’s request was a challenge to the Agency’s unexplained determination not to recommend their proposed adoption of B, and the Agency’s decision to restrict their future foster parenting to children not under the age of thirteen [ 96 ] This evidence, respecting the relationship between B and them, has no direct relevance in determining whether the proposed adoption in this proceeding is in the best interests of B.

The court’s supervisory role in the adoption process does not contemplate a determination of whether the proposed adoption is in the best interests of the child by comparison with the circumstances of other possible adoptive parents. [ 97 ] The application before this court is for approval of the adoption of B (now four) by proposed adoptive parents, who are the adoptive parents of B’s sibling, and one of whom shares with B the same cultural heritage. [ 98 ] The decision about standing in this proceeding is whether to give B’s maternal grandmother, who had care of B for her first year of life, but whose conduct resulted in the removal of B from her care, and whether to give D and A, foster parents who live in the same community and who care for B for the next two years of her life, but from whom B was removed, standing to oppose the proposed adoption. [ 99 ] In their applications, they also seek other remedies.

There is no jurisdiction in this court to grant those other remedies. The court’s jurisdiction is limited to determining whether the proposed adoption is proper and in the best interests of B. If not, the adoption is not approved and B remains in the permanent care of the Agency, B’s legal guardian. [ 100 ] The granting of standing would lead to an evidentiary process that compares the circumstances of B in the proposed adoptive home with that proposed by the intervenors.

There is no relevance to that evidence. [ 101 ] The only complicating circumstance in this case involves the action by the Agency after it removed B from D and A’s care on April 22, 2014, and placed it with the proposed adopting parent.

While the Agency was not obligated to do so, and most likely because the Agency (a First Nations agency) was under community pressure for removing B from her community, the Agency held meetings on April 29, 2014, with the applicants and other interested members of the community. [ 102 ] It appears that the Agency promised to effectively "stay" this adoption proceeding until M, D and A filed FOIPOP applications with and received from the Agency its records respecting B and the Agency’s decision to remove B from D and A’s foster care.

It appears that shortly after M, D and A had received redacted records pursuant to their FOIPOP applications (in early July), the Agency shortened the required waiting period for the filing of a Notice of Proposed Adoption by the proposed adopting parents and recommended the adoption of B by the proposed applicants. [ 103 ] By reason of this waiver of the remaining waiting period and the filing of the Notice of Proposed Adoption, any possibility that the applicants could return to the Family Court under the child protection proceedings and seek to terminate the permanent care was lost. [ 104 ] M, D and A put before the court that it should not condone the Agency’s conduct, which, to say the least, appears sharp in the conduct of its treatment of M, D and A. [ 105 ] The only issue before this court is the best interests of B, not the interests of M, D or A.

Because the shortening of the notice period effectively prevented M from applying for access in the Family Court, or D and A from applying for termination of the Permanent Care Order, it appears their interests are not necessarily on all fours with the best interests of B. [ 106 ] The difficulty with this decision arises not from whether the proposed intervenors have been dealt with fairly by the Agency. The court in G(

T) at para. 155 describes an adoption process for a child in the Agency’s care. That process does not contemplate consideration of procedural unfairness to the applicants.

[ 107 ] For these reasons, the applications by M, D and A for standing in these proceedings are dismissed. Warner, J.