2015 NLCA 55, 2015 NLCA 55

Date: 20151126 Docket: 13/85 Citation: J.T. v. Newfoundland and Labrador (Child, Youth and Family Services) , 2015 NLCA 55 PUBLICATION BAN: There is a Publication Ban on the names and any other identifying information of the children referred to herein, as well as the names of their biological parents, relatives and foster families pursuant to

section 52 of the Children and Youth Care and Protection Act , SNL 2010, c. C-12.2. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : J. T. APPELLANT AND : MANAGER OF CHILD, YOUTH AND FAMILY SERVICES, ZONE E FIRST RESPONDENT AND : D. L. SECOND RESPONDENT Coram: Green C.J.N.L., Welsh and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (F) 200702U0297, 2013 NLTD(F) 29 Appeal Heard: December 10, 2014

Judgment Rendered: November 26, 2015 Reasons for Judgment by Green C.J.N.L. Reasons for Judgment (Dissenting in Part and in the Result) by Welsh J.A. Reasons for Judgment by Hoegg J.A. Counsel for the Appellant: Lori Savory Counsel for the First Respondent: Jacqueline Pelletier Counsel for the Second Respondent: Shelley Senior Green C.J.N.L.: [1] I have read, in draft, the reasons for decision of my colleagues, Welsh, J.A. and Hoegg J.A. While I agree with much WelshJ.A. has written, I must respectfully disagree with her with respect to the ultimate outcome and with respect to part of her analysis of theissue regarding the application of

section 7 of the Canadian Charter of Rights and Freedoms to the circumstances of this case. While Iagree with the general result reached by Hoegg J.A., I prefer to express my analysis and reasoning somewhat differently. [2] I would allow the appeal and declare that section 32(6)(

a) of the Children and Youth Care and Protection Act, SNL 2010, c. C-12.1 is of no force and effect, insofar as it purports to preclude the ability of a judge to grant access to a child in need of protection whenmaking a continuous custody order and to attach conditions incidental to such access order, when the judge making the continuouscustody order determines that it is in the best interests of the child to do so. I would further order that the appellant J.T. (Ms.

T.) shallhave access to the children and incidental services in support of such access in accordance with the trial judge’s recommendations inparagraph 253 of her Reasons for Decision. Because of the time that has elapsed since the trial judge’s decision, I would give both Ms. T.and the Manager leave to apply to the Family Division for review and possible variation of those access conditions based on events thathave occurred since the time of the original hearing.

Appeal Issues [3] At issue in the appeal are the questions (1) whether the trial judge made errors in principle or made palpable and overridingerrors of fact in exercising her discretion not to make a further temporary custody order in respect of all or some of the children, insteadof making a continuous custody order; (2) whether the appellant should be allowed to raise a Charter issue on appeal even though shedid not make the argument at trial; and (3) if the answer to issue (2) is in the affirmative, whether the legislative restriction in section32(6)(

a) of the Act prohibiting attaching conditions, in particular access conditions, to a continuous custody order is in violation ofsection 7 of the Charter and if so, whether the provision is nevertheless saved by

section 1. Appropriateness of a Further Temporary Custody Order [4] I agree with, and adopt Welsh, J.A.’s analysis and conclusions that the trial judge did not err in the exercise of her discretionby refusing to make a further temporary custody order, instead of a continuous custody order, in respect of all or any of the children. Raising a Charter Challenge on Appeal [5] I also agree with Welsh, J.A.’s conclusion and reasoning that the appellant should be permitted to argue, for the first time onappeal, that section 32(6)(a), insofar as it prevents a court from imposing conditions in a continuous custody order, violates

section 7 ofthe Charter. I would further add that I endorse Hoegg J.A.’s additional reasons, expressed in paragraphs 116-117, for allowing theCharter arguments to be raised on this appeal. Application of

Section 7 of the Charter [6] That leaves for consideration the issue of whether section 32(6)(

a) of the Children and Youth Care and Protection Act, whichmandates that a continuous custody order “shall not contain conditions”, violates the Charter’s guarantee in

section 7 that a personcannot be deprived of the right to life, liberty and security of the person except in accordance with the principles of fundamental justice. [7] The jurisprudence of the Supreme Court of Canada requires a two-step analysis in deciding whether there is a violation ofsection 7: (1) whether there is an infringement of the right to life, liberty or security of the person; and (2), if so, whether theinfringement is contrary to the principles of fundamental justice. See Winnipeg Child & Family Services (Central Area) v.

W. (K.L.),2000 SCC 48, [2000] 2 S.C.R. 519, per L’Heureux-Dubé J. at paragraph 70. 1. Infringement of Life, liberty and Security of the Person? [8] With respect to the first step in the analysis, I agree with the conclusion of my colleague Welsh J.A. who relied on NewBrunswick (Minister of Health and Community Services) v. G. (J.), (SCC), [1999] 3 S.C.R. 46, that an order forcontinuous custody engages the parent’s

section 7 right to security of the person. I would also add, however, as recognized by LamerC.J.C. in G. (J.) at paragraph 76, that the child’s right to security of the person is also engaged since “the child’s psychological integrityand well-being may be seriously affected by the interference with the parent-child relationship.” (See also Re A.(R.), 2002 YKTC 28,

per Stuart C.J. at paragraph 167) and Re C.P.L. (1998), (NL SC), 70 Nfld. & P.E.I.R. 287 (Nfld. U.F.C.) per Riche, J.at paragraphs 16-17; appeal dismissed for mootness (1993), (NL CA), 112 Nfld. & P.E.I.R. 148 (NFCA); leave toappeal to SCC dismissed [1993] S.C.C.A.

No. 527.) [9] Further, I would emphasize that although what is at stake here is whether the parent should continue to exercise access to thechild and not whether a continuous custody order should be made, that does not lessen, in the current circumstances, the significance ofthe issue in terms of its impact on the psychological integrity of the mother or the child. The denial of access is the very thing that willbring about the serious interference with the psychological integrity that G.(J.) says that

section 7 protects. [10] What is important is the degree and quality of the relationship, in terms of the potential involvement of the parent in the child’slife, not the bare label (custody or access) of the issue at stake: J.F. v. Newfoundland and Labrador (Child, Youth and Family Services),2013 NLCA 27, 336 Nfld. & P.E.I.R. 214 at paragraph 45. In the current case, given that Ms. T. was the former custodial parent forwhom this is the final chance to preserve any relationship with her children, and given the findings of the trial judge (referred to later inthese reasons) that Ms.

T. has a significant emotional bond with the children and continued contact is in their best interests, there can beno doubt that Ms. T.’s and the children’s

section 7 rights are engaged. 2. Contrary to the Principles of Fundamental Justice? [11] It is in the application of the second part of the test for determining whether

section 7 applies (whether the infringement iscontrary to the principles of fundamental justice) where I differ with Welsh, J.A. [12] As stressed in W. (K.L.), the analysis is a contextual one that takes into account the social and legislative context and thepurpose and effect of the impugned provision. (

i) Social Context [13] In terms of social context, writing for the majority in W.(K.L.), L’Hereux-Dube J. emphasized two important matters. First, shestressed the “crucial” bond of love and support between parents and their children and that unnecessary disruptions of this bond by thestate have the potential to cause significant trauma to both parent and child (paragraph 72). Secondly, she nevertheless stressed thatbecause children are vulnerable and can be subject to abuse that can have long-term negative impact, the state has assumed the duty andpower to intervene to protect children’s welfare (paragraph 75).

There is obviously a tension potentially involved in recognizing andpromoting these two considerations. State intervention must respect and take account of the need to minimize “unnecessary disruptions”of the bond between parent and child. [14] This responsibility of the state to intervene to protect children’s welfare “finds expression in the parens patriae jurisdiction ofthe common law courts.” (W.(K.L.), paragraph 75). The state’s parens patriae power has been consigned to and exercised by the courts,in various iterations, since at least the seventeenth century (E. (Mrs.) v.

Eve, (SCC), [1986] 2 S.C.R. 388 per LaForest, J.at paragraphs 34-39). In Newfoundland and Labrador, the Supreme Court has had jurisdiction to “appoint guardians and keepers forinfants” since at least 1825 (An Act for the Better Administration of Justice in Newfoundland and for other purposes, 5 Geo IV, c. 67, s. 6and the parens patriae jurisdiction of the superior courts has been recognized in numerous cases (see, In Re Harriet Sophia Rutherford(1861), 4 Nfld.

L.R. 589 per Robinson, J. at 590: “It is the duty of … each judge of Supreme Court of Newfoundland to act with all theanxious care and vigilance of a parent over the person and property of an infant ward of the court …” See also In Re McGirr (1891), 7Nfld. L.R. 560; Hutchings v. Clarke (1976), (NL CA), 9 Nfld. & P.E.I.R. 438, 71 D.L.R. (3d) 356). This jurisdictionhas been carried forward into confederation with Canada in 1949 by the Terms of Union (Newfoundland Act, Schedule, Term 18(4)).

Itis an inherent part of the court’s functions. [15] It is also arguable that the parens patriae jurisdiction is part of the Court’s “core” jurisdiction for the purpose of the applicationof

section 96 of the Constitution Act, within the principles enunciated in McMillan Bloedell v. Simpson, (SCC), [1995] 4S.C.R. 725, thereby eliminating the ability of the legislature to strip the court of that jurisdiction. However, this point was not arguedand, in view of my conclusion on

section 7, it is not a matter that requires a definitive answer at this time. In any event, the parenspatriae jurisdiction is to some degree also protected by the principle of statutory construction that a statute should not be interpreted asabrogating the inherent jurisdiction of the superior courts unless the statute employs clear language to that effect (Ordon Estate v. Grail, (SCC), [1998] 3 S.C.R. 437, per Iacobucci and Major JJ. at paragraph 46; see also Clift v.

Holdsworth (1819), 1 Nfld.L.R. 167, per Forbes C.J.). (ii) Legislative Context [16] As to the legislative context, the facts of this case and the findings of the trial judge throw into stark relief the contradictionsand conflicts inherent in the existing legislative provisions. The trial judge, after an exhaustive review of the evidence, concluded that“the children are bonded with their mother and have a stronger relationship with her than with their father.” (Decision, paragraph 242).

She referred to the fact that the Manager had committed to providing the father weekly access to the children and that as a result thefather had withdrawn his Charter challenge to section 32(6)(a). In contrast, the Manager refused to commit to any pattern or duration ofaccess on the part of the mother and specifically would not commit to whether any access would survive an adoption.

Observing that theManager’s position was “surprising to say the least”, the judge concluded: [242] … the Children’s best interests require that they have at least the same access to their mother as they have been assured they willhave to their father. (Emphasis added.) [17] Nevertheless, the judge felt she was driven, in the absence of a Charter challenge, by the wording of section 32(6)(a), to make acontinuous custody order in favour of the Manager, without any access conditions in favour of the mother. [18] It is clear from the manner in which the judge approached the matter that she did not believe that the best interests of the

children would be served unless access conditions were attached to the continuous custody order and she would have imposed suchconditions if she felt she could legally have done so. Instead she was faced with a choice between the lesser of two evils: continuouscustody without conditions or returning the children to the mother under the Manager’s supervision.

Faced with such a choice, she feltcontinuous custody was the better option. [19] To further emphasize the dissatisfaction the judge felt with the position she was being put in, she tried nevertheless to leaveopen the possibility of a subsequent imposition of access conditions in the event that a subsequent Charter challenge removed thestatutory constraint that created the dilemma she was facing: [251] … in the very unusual circumstances of this case, I shall make my Order subject to variation for the imposition of conditions in theevent of a successful Charter challenge to section 32(6)(a).

She then went on to spell out what the nature and extent of the access for the mother should have been, had she had the power to imposeit as a condition of the order. [20] The judge’s dilemma arose as a result of the conflict created by the interrelationship of section 32(6)(

a) with other provisions ofthe Act. [21]

Section 9 of the Act provides in pertinent part:

(1) This Act shall be interpreted and administered in accordance with the principle that the overriding and paramount consideration in adecision made under this Act shall be the best interests of the child or youth.

(2) In determining a child or youth’s best interests, all relevant factors shall be considered, including … (

b) the child or youth’s physical, emotional and developmental needs; (

c) the child or youth’s relationship with family or a person significant to the child or youth; (Emphasis added.) [22] This provision directs decision-makers, including the courts, not only to interpret but also to administer the legislation using thebest interests of the child as the touchstone. In doing so, regard must be had to, amongst other things, the relationship between the childand family members. This is strongly suggestive of a requirement to consider whether a child should continue to have access to his orher parents when deciding whether a custody order, whether temporary or continuous, should be made. [23]

Section 9, by its terms, applies to every provision of the Act, including

section 32, and specifically section 32(6)(a); yet thatlatter provision expressly says that a continuous custody order must not contain conditions, thereby purporting to eliminate access as aconsideration even though

section 9 contemplates it as being open to be addressed. If, as in this case, the trial judge, after considering allthe evidence, concludes that the best interests of the child require that she continue to have access to the mother but that in other respectscontinuous custody is indicated, section 32(6)(

a) on its face would prevent this and accordingly its operation would frustrate, or at leastblunt, the purpose of the legislation. [24] In New Brunswick (Minister of Health and Community Services) v. L.(M.), (SCC), [1998] 2 S.C.R. 534, a caseinvolving the question whether a court could impose access conditions when making a permanent guardianship order (the NewBrunswick equivalent of a continuous custody order) in a situation where the legislation was silent on the question, the Supreme Courtheld that the court did have such power, commenting, in the words of Gonthier J.: [30] This

interpretation of the Act is consistent with what was intended by the legislature, that is, the best interests of the child. Anyother

interpretation would leave the question of access entirely in the Minister’s hands. That would not be desirable, in that the childrenmight suffer, for example, from administrative oversights, lack of communication or tensions between the people involved. … [31] To summarize, I am of the view that the New Brunswick legislature has given the courts jurisdiction to decide access rights, since itrequires that they “place above all other considerations the best interests of the child” (s. 53(2)).

Denying the courts the opportunity todecide whether an access order should be made could prevent them from performing their duty of acting in the best interests of the child.… (Emphasis added.) [25] L.(M.) is authority for the proposition that an obligation to make a continuous custody decision on the basis of the best interestsof the child must of necessity include a consideration of access as part of that decision. It follows that the best-interests admonition insection 9 of our Act requires the court, if it is to fulfill its mandate, to deal with access.

Unlike in L.(M.), however, where the legislationwas simply silent, our legislation expressly purports to prevent access considerations from being dealt with. The conflict within ourlegislation is therefore clear. [26] It is tempting to try to construe

section 32(6(

a) in a manner that would make it consistent with

section 9. One way might be toconstrue “conditions” as meaning something other than conditions relating to access, on the theory that the extent of access, if any, is nota condition engrafted on a custody order but is an integral part of defining the scope of custody (a malleable concept) itself. In otherwords, it would have to be decided before the custody order is made, with the prohibition on conditions relating to other matters. [27] A careful reading of the Act does not leave this option open, however. The contrast in the language dealing with temporary

custody orders is too stark. Section 32(4) specifically allows a judge making a temporary custody order to “grant a parent or person significant to the child contact with the child” and section 32(5) (

a) allows the judge to attach “reasonable conditions” including conditions with respect to “the child’s contact with a parent.” It is evident from the usage of ‘conditions” in relation to temporary custody orders that the word is intended to encompass matters relating to access. Accordingly, consistency does not allow an

interpretation of section 32(6)(

a) in a manner that does not apply to access. [ 28 ] There is therefore a contradiction within the legislation itself with respect to the ability of a judge in a protective intervention hearing to impose access conditions even where the best interests of the child dictate that result. The effect of section 32(6) (a), if given free rein, is to carve out a zone of exemption where the best interests of the child cannot be given full effect, even though

section 9 purports to make the best interests consideration applicable to all situations under the Act . [ 29 ] There is also another conflict in the legislation that is tangentially relevant. Section 32(6) (

b) of the Act provides that where a continuous custody order is made, the manager has custody of the child and “has all the rights and responsibilities of a parent for the child’s care and future planning.” In slightly different language, section 39(1)(

a) also provides that the manager “has the right to make all decisions regarding the child.” The effect of these two provisions is to put the manager in the place and stead of the parent. But, that is as far as it goes. In other circumstances, parental rights with respect to custody and upbringing of their children are always subject to review by the courts if, in the context of a dispute, a claim of custody or access is made by a parent or another interested third party such as a grandparent.

In principle, as the substitute parent, the manager should also equally be subject to the jurisdiction of the courts if the child’s best interests demand it. [ 30 ] Yet, section 39(4) of the Act purports to eliminate this possibility. It provides: 39.

(4) An application for custody of or access to a child under the Children’s Law Act shall not be made with respect to a child who is the subject to a continuous custody order made under this Act . Then, as if to try to nail the door shut, the prohibition is repeated again in similar language in section 27(2) of the Children’s Law Act , RSNL 1990, c. 13.

The intent appears to be to strip the court of its parens patriae jurisdiction in child protection matters. [ 31 ] The effect of these provisions, if they are given full scope, is to give to the manager custodial rights that are effectively greater than those of the parents from whom custody has been taken and to make the manager a law unto herself without any judicial supervision or accountability (except on administrative law principles that might call for judicial review of administrative discretion).

Although more subtle, this also represents an inherent conflict in the Act because the intent behind placing the manager in loco parentis appears not to make the manager an “uber-parent” whose rights have no effective bounds. One is reminded again of Gonthier J.’s decrying in L.(M.) the idea of leaving “the question of access entirely in the Minister’s hands” and asserting “[t]his would not be desirable, in that children might suffer, for example, from administrative oversights…” (paragraph 30).

In this connection, the observation of Stuart C.J. in Re A.(R.) are also relevant: [130] In dealing with the social context surrounding the constitutional rights of a child, we cannot overlook the lessons learned from erroneously assuming institutions always protect a child’s best interests.

The history of care provided by mission schools, orphanages, correction facilities and foster homes contains ample tragic examples of why the best interests of children cannot be left to the exclusive discretion of an institution. [ 32 ] So long as the legislature continues to involve the courts in the process of deciding the best interests of children when deciding protective intervention questions, and so long as the mandate is to make decisions in accord with their best (not, “better than nothing”) interests, the courts must have the authority to do their job. [ 33 ] It must be remembered that the issue at stake here relates to the authority of the courts to make an order relating to access at the time of making a continuous custody order (which must be made by reference to the best interests principle); it does not relate to whether the courts should continue to have authority to make access orders or otherwise intervene in matters that may arise subsequent to the making of the continuous custody order.

Whether the courts can be so restricted will, at least in part, depend on whether their parens patriae jurisdiction constitutes a core jurisdiction of a superior court which cannot constitutionally be removed by legislation. As indicated previously, this is an issue that is best left undecided for another day. (iii) Purpose [ 34 ] The general purpose of the Act is, as stated in

section 8 , ‘to promote the safety and well-being of children and youth who are in need of protection.” This purpose is to be achieved by interpreting the powers in the Act and applying its provisions in accordance with the best interests principle (s. 9). Sections 8 and 9 must be read together. As noted by Abella J. in Manitoba (Director of Child and Family Services v. C.(A.) , 2009 SCC 30 , [2009] 2 S.C.R. 181, the best interests of the child is the “conceptual cornerstone” of child protection legislation. Promotion of children’s safety and well-being is accomplished by making decisions in their best interests.

This is not to be left to subjective whim. According to the scheme of the legislation, the decision must be made objectively and independently of persons with invested interests. The courts have been chosen to perform that task, at least up to and including the making of a continuous custody order. [ 35 ] When the current wording of

section 32 is compared with the legislation before it was amended (which specifically allowed access conditions to be attached to a continuous custody order: SNL 1998, c. C-12.1, s. 34(2) , (3) and (4) ), it is clear that the removal of such provisions and the insertion of countermanding ones to the effect that a continuous custody order shall not contain conditions was meant to remove from the court the power to grant access to a parent when making a continuous custody order. [ 36 ] Little was said in argument as to the reason for such a move.

It appears, however, given the strong legislative attempt to remove the courts from any further involvement on access and custody issues once a continuous custody order has been made, that there may have been a perception that any lingering effect of the court’s order, in terms of potential restrictions on what the manager can subsequently do or decide, ostensibly in the child’s best interests, would be counterproductive to the effectiveness and efficiency of future decisions involving the child. These may be laudable goals but they must respect and be balanced against the goal of ensuring that

the courts make continuous custody decisions based on the best interests of the child. As noted already, making such decisions, which ofnecessity involves a consideration of “ the child[’s]… relationship with family or a person significant to the child…” (s. 9(2)(c)), requiresa determination of whether continued access is in the best interests of the child. (iv) Principles of Fundamental Justice [37] The fact that the Supreme Court of Canada in Canadian Foundation for Children, Youth and the Law v.

Canada (AttorneyGeneral), 2004 SCC 4, [2004] 1 S.C.R. 76 held that “the best interests of the child” is itself not a principle of fundamental justice doesnot end the matter. The question is whether there are nevertheless, on the application of the existing jurisprudence, other bases forconcluding that section 32(6)(

a) is not in accordance with the principles of fundamental justice. [38] The Supreme Court has already determined that the right of the state to intervene in the parent-child relationship to protect thechild’s life and health accords with the principles of fundamental justice “provided that there is a fair procedure for making thisdetermination” (G.(J.), per Lamer C.J.C. at paragraph 70).

In this case, the legislature has mandated a procedure for reviewing andauthorizing state intervention by providing that the court may make the decision authorizing state intervention but only where such adecision is in the best interests of the child. A parent or child facing state intervention is entitled, as a matter of fairness, to have thatdetermination made. If the court is prevented from doing so, a determination will be made that does not ensure that the parent and childare dealt with according to law, that is, in a manner that fully respects the best interests of the child.

To do so in these circumstances is toviolate the principles of fundamental justice so long as the legislation gives to the court the authority to make the best interestdetermination. [39] The matter can also be put another way. In Canada (Attorney General) v. Bedford, 2013 SCC 72 , [2013] 3 S.C.R.1101 and Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 33, the Court reiterated that laws that are “arbitrary,overbroad or having effects that are grossly disproportionate to the legislative goal” (Bedford, paragraph 105) violate the principles offundamental justice.

In Bedford, McLachlin C.J.C. explained that the “evil” of the absence of a connection between the infringement ofrights and what the law seeks to achieve is addressed by the norms against arbitrariness and overbreadth (paragraph 108). In Carter, anarbitrary law was described as one that is not capable of fulfilling its objectives (paragraph 83) and a law that is overbroad is one thattakes away rights in a way that generally supports the object of the law but “goes too far by denying the rights of some individuals in away that bears no relation to the object” (paragraph 85).

The Court in Carter also observed that: [85] … A law that is drawn broadly to target conduct that bears no relation to its purpose “in order to make enforcement more practical”may therefore be overbroad (see Bedford, at para. 113) [40] In my view, the impugned section 32(6)(

a) does not comply with the norms against arbitrariness and overbreadth. The purposeof stripping from the courts the ability to make an access order in accordance with the best interests of the child is to facilitate theefficiency and expediency of the manager’s work after a continuous custody order is made. However, the importance of efficiency andexpediency does not necessarily require absolute and untrammeled ability to act instantaneously in all cases without reference to previousdeterminations as to the value of continued access.

Certainly, if the child is in imminent danger, the manager would in any event havethe authority to act to prevent that danger on a temporary basis.

For longer-term post-order arrangements affecting access, there are othermechanisms that could be provided legislatively that could still provide an efficient and flexible basis for varying, adjusting or removingthe access that may have been indicated at the time the continuous custody order was originally made, instead of purporting to removefrom the court the ability, in terms of access, to do what was determined to be appropriate then. [41] It is important to remember that there is nothing inherent in the concept of continuous custody that would make it incompatiblewith the idea of the court, when making a continuous custody order, granting continuing access to a parent.

In L.(M.), Gonthier Jobserved: [42] There is no inconsistency in principle between access and guardianship [the term used in New Brunswick]… [43] … [I]t may be necessary to ensure a child’s emotional stability by keeping him or her in the foster family, so that the child does nothave to live with a parent who is unable to provide for his or her welfare but can nevertheless have the opportunity to maintain andcultivate an emotional tie with that parent … This analysis is inferentially supported by the fact that the vast majority of other provincial and territorial jurisdictions in Canadaapparently also see there is no incompatibility with a court, when making a continuous custody order, making it subject to conditions,including access conditions. [42] Removing from the court any ability to make an access order at the time of making a continuous custody order and in allcircumstances is arbitrary because it purports to kill a mouse with an elephant gun.

The solution results in effects that are unnecessary toachieve the apparent object of section 32(6)(

a) and in fact works against the purpose of the legislation as a whole. Even if it could besaid there is some potential rational connection between removing the ability of the court to impose access conditions and the need forefficacy and expediency in the post-order period, the manner in which the legislature has chosen to achieve that is overbroad.

Itsacrifices principle and fairness for expediency or practicality in all cases when that is not necessary to achieve the identified objectives. [43] A provision that effectively undermines the legislative purpose – in this case, promoting the safety and well-being of childrenby requiring decisions affecting them to be in their best interests – has to be considered either arbitrary or overbroad when the provisionis not necessary to achieve the legislative purpose and its application results in infringement of the rights of persons to whom it is beingapplied. [44] My colleague, Welsh J.A., emphasizes the distinction between the objectives of temporary and continuous custody orders, withthe former being to promote reunification of the family and the latter being to provide a long-term solution for the care of the childwhich could lead ultimately to adoption.

Even granting the differing objectives of these two types of custody orders, it does not followthat there will never be circumstances where continued contact with a parent, even after a continuous custody order is made, may not bein the best interests of the child, assessed at that time. Furthermore, the differing objectives do not, as a matter of principle, mean that

access conditions are inappropriate for inclusion as part of a continuous custody disposition. The comments in L.(M.) quoted above make that clear. [ 45 ] I emphasize again that what is at issue here is the constitutional legitimacy of a provision that purports, at the time of a hearing when continuous custody is in issue , to remove the ability of a court to decide access issues even though an access order is not inconsistent with making a continuous custody order ( L.(M.) ) and in fact is intimately bound up with the court’s mandate to make a decision that is in the best interests of the child.

For reasons already expressed, addressing access by considering the importance of the relationships between the child and his or her parent is part of that determination. It is therefore not necessary to address whether it is appropriate for the court to continue to have a supervisory role over best interests decisions by the manager in the period after the continuous custody order is made. [ 46 ] Thus, the fact that the manager’s subsequent decisions are nevertheless subject to judicial review is not relevant to the constitutionality of section 32(6)(

a) insofar as it affects the court’s decision-making authority at the time a continuous custody order is made . I would add, however, that I in any event disagree with my colleague Welsh J.A.’s conclusion that judicial review is a sufficient substitute for other court supervision, by way of its parens patriae jurisdiction or otherwise, of best interests determinations. Judicial review, even though it involves considerations relating to a child, must by its nature, proceed on administrative law principles where, as Barry J.A. pointed out in P.(K.) v.

Newfoundland & Labrador (Child, Youth & Family Services , 2009 NLCA 42 , 288 Nfld. & P.E.I.R. 37 at paragraph 67 , the hearing “will be constrained by the need to show considerable deference to the findings of the statutory decision- makers.” The focus on reasonableness as the likely standard of judicial review will mean that direct consideration of the best interests of the child will not be front and centre, as they should be and as the legislation requires. Furthermore, the result of a judicial review hearing is to remit the case to the administrative decision-maker for a further decision.

It does not permit the court to make its own decision on the merits (in this case, using best interests considerations). [ 47 ] Accordingly, I conclude that section 32(6)(

a) contravenes

section 7 of the Charter because it deprives Ms. T. of her right to security of the person in a manner that is not in accord with the principles of fundamental justice. I would also add that the denial of the children’s right to have access to Ms. T. also contravenes

section 7 by denying them the right to security of their person that is not in accordance with the principles of fundamental justice. (

v) Application of

section 1 of the Charter [ 48 ] In my view, the infringement of Ms. T.’s and the children’s rights under

section 7 is not saved by

section 1 of the Charter . To be saved under

section 1, it must be shown that the provision has a pressing and substantial objective and that the means are proportional to that object: Carter , paragraph 94 . As noted in Carter , the circumstances where a person’s

section 7 rights can be overridden by operation of

section 1 will be rare because

section 7 rights are fundamental and laws that violate them are by their nature inherently flawed. [ 49 ] It is sufficient for the current analysis to say, based on the foregoing discussion, that the means chosen to achieve the objective of ensuring effectiveness and efficiency of decision-making by the manager after a continuous custody order has been made (removing the ability to make an access order as part of a continuous custody determination) are not proportional to achieving that objective, as they fundamentally alter the exercise of the state’s parens patriae jurisdiction by allowing for decisions (by the court) that may not be in accordance with the underlying purpose of that jurisdiction, namely, acting in the best interests of the child.

Furthermore, the minimal gain in efficient and expeditious dealing with post-order matters is outweighed by the substantial negative impact on parents and children in cases such as the present. Conclusion and Disposition [ 50 ] I would affirm the trial judge’s finding that a further temporary custody order should not be made in respect of any of the children. The appeal against that conclusion should be dismissed. [ 51 ] I would allow the appeal with respect to the constitutionality of section 32(6)(

a) of the Children and Youth Care and Protection Act , with no order as to costs, and declare that section 32(6)(

a) is of no force and effect insofar as it purports to preclude the ability of a judge to grant access to a child in need of protection when making a continuous custody order and to attach conditions incidental to such access order, when the judge determines that it is in the best interests of the child to do so. [ 52 ] Inasmuch as this Court may “…make any order which might have been made by the court appealed from” ( Rules of the Supreme Court, 1986, rule 57.23(1)(b)), I would further order (following the analysis in L.(M.) ), as conditions of making the continuous custody order in this case, that Ms.

T shall have access to her children and incidental services in support of such access in accordance with the trial judge’s recommendations in paragraph 253 of her Reasons for Decision. However, because of the time that has elapsed since the trial judge’s decision, I would give both Ms. T. and the Manager leave to apply to the Family Division for review and possible variation or revocation of those conditions based on events that have occurred since the time of the original hearing. ______________________________ J. D. Green C.J.N.L. Welsh J.A. (Dissenting in part and in the result): [ 53 ] Ms. T. and Mr.

L. are the unmarried parents of three children ages seven, five and four. The children were taken into care when infants. Over the years, the two elder children have been returned to the care of their mother for limited periods of time which ended when the children were taken back into care. While in care, the three children have always resided with the same foster family. On September 30, 2013, the trial judge ordered that the children be placed in the continuous custody of the manager of Child, Youth and Family Services.

At issue in the appeal is whether the judge erred in refusing to grant a further temporary custody order and, in the

alternative, whether the legislation preventing the court from attaching conditions to a continuous custody order infringes

section 7 of the Canadian Charter of Rights and Freedoms . BACKGROUND [ 54 ] The relationship between Ms. T. and Mr. L. was described by the applications judge as “many cycles of domestic violence with reconciliation and recantation being a common theme” ( 2013 NLTD(F) 29, 341 Nfld. & P.E.I.R. 47, at paragraph 7 ). Domestic violence and Ms. T.’s returning to reside with Mr. L. are the main reason the children have continued to be in care. [ 55 ] Two temporary custody orders have been granted for the eldest child, and one each for the two younger children.

The temporary orders have been continued for lengthy periods. Over the years, with the approval of the manager, both parents have exercised access to the children. Finally, on February 7, 2011, the manager filed an application for continuous custody in respect of all three children. Ms. T. objected to the order and sought return of the children to her care. Mr. L. initially supported that request, with access to the children for him.

However, at the hearing, he indicated support for a continuous custody order on the assumption that the children would remain with the same foster family and that he would have access to them. The continuous custody order was granted on September 30, 2013. [ 56 ] In her decision, the trial judge provided a detailed review and consideration of the evidence. She was critical of the failure of Child, Youth and Family Services to provide more support for Ms. T. in her attempt to have the children returned to her care. The judge was clearly aware that there were times when Ms.

T. appeared to be making changes in her lifestyle which seemed to bode well for possible return of the children to her care. However, in the result, the trial judge concluded: [205] I accept that [Ms. T.’s] inability to withdraw from her abusive relationship with [Mr. L.] (until recently ) posed a risk of emotional (and potentially physical) harm to the Children. In fact, I conclude that the relationship itself was the root of most (if not all) of the Manager’s concerns. … The evidence supports the conclusion that all three Children were removed because of [Ms. T.’s] relationship with [Mr.

L.]. [206] As a result of the cycle of their removal, placement, return under supervision, removal, placement, changes in

schedule and form of access, the Children have had no stability and in [the eldest child’s] case this has continued for six long years. The evidence supports the conclusion that each of the Children, in their own way, is displaying behavioural responses to this history and all three Children require certainty in their upbringing and relationships. [207] Had [Ms. T.] been able to break the cycle of domestic violence and remain free from alcohol/drug abuse for a sustained period prior to the conclusion of the trial, I may have concluded differently.

However, given her disappearance in June/July 2012, her new relationship with a partner who has his own history of domestic violence and her admission at the conclusion of the trial in July 2012 of continued drug use, I have no difficulty accepting all three Children are in need of protective intervention. The more difficult question is the appropriate Order. [ 57 ] Focusing on determining an order that would be in the children’s best interests, the trial judge undertook a thorough review of the evidence and circumstances before making an order for continuous custody, rather than further temporary orders.

The judge went on to address the legislative bar to attaching conditions to the continuous custody order. ISSUES [ 58 ] There are three issues raised by this appeal:

(1) Did the trial judge err in refusing to make additional temporary custody orders for the children?

(2) If the judge did not err in granting a continuous rather than temporary order, does the legislative bar to attaching conditions to a continuous custody order breach

section 7 of the Charter ?

(3) A preliminary question is whether the Charter issue can properly be considered by this Court given that the argument was not made at trial. ANALYSIS The Legislation [ 59 ] Orders granting the manager care of a child are made pursuant to

section 32 of the Children and Youth Care and Protection Act , SNL 2010, c. C-12.2, which provides, in relevant parts:

(1) At a protective intervention hearing, a judge shall determine whether a child is in need of protective intervention.

(2) Where a judge finds that a child is in need of protective intervention, the judge shall so declare and order that … (

c) the child be placed in the temporary custody of a manager for a specified period in accordance with

section 33; or (

d) the child be placed in the continuous custody of a manager. …

(5) Where a judge makes an order for temporary custody under paragraph (2)(c), the judge may attach reasonable conditions to that order, including conditions with respect to

(

a) the child’s contact with a parent, unless the judge is satisfied that continued contact with the parent would not be in the best interests of the child; …

(6) Where a judge makes an order for continuous custody under paragraph (2)(d), (

a) the order shall not contain conditions; and (

b) the manager has custody of the child and has all the rights and responsibilities of a parent for the child’s care and future planning. [ 60 ] Section 33(1) of the Act limits the number of temporary custody orders to two orders in total during a child’s life. Nonetheless, subsection (2), which permits a third order, provides in relevant parts: Notwithstanding subsection (1), a third order may be granted where (

a) there are exceptional circumstances that in the opinion of the judge warrant exceeding the lifetime maximum of 2 orders; and (

b) the parent has demonstrated that he or she may reasonably be expected to resume the custody of the child within a reasonable period, but the term of a third order shall not exceed (c) 3 months where the child is under 6 years of age when that order is made; or (d) 6 months where the child is 6 years of age or over when that order is made. [ 61 ] The effect of a continuous custody order is that the manager “becomes the sole custodian of the child and has the right to make all decisions regarding the child” and “may consent to the adoption of the child” (

section 39 of the Act ). [ 62 ] In some circumstances, a continuous custody order may be rescinded.

Section 42 provides, in relevant parts:

(1) With the leave of a judge, and where (

a) the circumstances have changed significantly since the time an order for continuous custody was made; and (

b) the child or youth has not been placed for adoption, a party to a hearing at which the order was made may file an application with the court for the rescission of the order. …

(3) The judge may grant an order to rescind an order for continuous custody where he or she believes it is in the best interests of the child to do so. An Additional Temporary Custody Order [ 63 ] Having reviewed the evidence, the trial judge considered the options available under the legislation. She determined that return of the children to Ms. T.’s care with a supervision order was not appropriate: [215] … The Children’s best interests would not be served by transferring their residence from the caregiver home to [Ms.

T.’s] care (under supervision) while concerns for drug use and exposure to a relationship of domestic violence are real. A Supervision Order is therefore not a realistic option. [ 64 ] As to a temporary custody order, a second such order was available for the two younger children for whom just one previous order had been made. However, a third order for the eldest child engaged the requirements of section 33(2) of the Act . The trial judge was satisfied that the first requirement was met because the importance of not separating the three siblings would qualify as an exceptional circumstance.

She reasoned that, while a second temporary order was available for the two younger children, raising the possibility of their future return to the care of Ms. T., if a third order was precluded for the eldest child, she could be separated from the other two. [ 65 ] Under section 33(2), a reasonable expectation that Ms. T. would resume custody of the eldest child within a reasonable period of time is the second requirement for granting a third temporary order.

In order not to separate the children, the judge concluded that the reasonable expectation must be that all three children may be returned to their mother’s care. In conducting the analysis, the trial judge relied on four primary considerations: the relationships the children have formed; their safety and well-being; their physical, emotional and developmental needs; and the importance of stability and permanency in their care. [ 66 ] Factors the trial judge assessed in the short-term were: the negative influences of Ms.

T.’s family and the likelihood that she would “remain vulnerable to their lure”; the fact that, regardless of “the immense services provided to [Ms. T.], over the course of at least six years, she has not yet demonstrated that she can maintain a lifestyle that is free from alcohol/drug abuse or domestic violence”, and that this was not likely to change in the near future; and the continuing risk that Ms. T.’s “drug or alcohol use would lead to the neglect or abandonment of the Children” (paragraphs 220, 221, 223 and 224, respectively). The trial judge referred to other challenges for Ms.

T., such as limitations in her cognitive abilities and the demands of dealing with the needs of three young children. The latter, she noted, could be addressed by the provision of appropriate services. [ 67 ] The trial judge recognized that an order for continuous custody is “the most drastic order that can be made” and that “there is a

natural reluctance not (sic) to make such an order until absolutely convinced that no other option is appropriate” (paragraph 226). Withthat in mind, in assessing whether a temporary order would be appropriate, the trial judge explained: [230] [Ms. T.] has been involved with CYFS since she was herself a child and consistently since the birth of the first of her threeChildren, in 2007. Despite my criticism of the disproportionate services provided to [Ms. T.] and the caregiver family, [Ms. T.] hasreceived multiple services at great public expense over the past six years.

Notwithstanding these, she candidly acknowledges continueddrug use and is committed to maintaining a relationship with a new partner who she acknowledges has a history of domestic violence. [68] The trial judge indicated an understanding of Ms. T.’s attempts to put her life in order in the hope of being able to parent thechildren in the long-term.

The judge accepted evidence that the eldest child “has challenging behaviours and is particularly aggressive toher siblings” and that both of the younger children “display some unsettling behavior”, with the second eldest being insecure and theyoungest being “almost as aggressive as her older sister” (paragraphs 238 and 239).

The trial judge concluded: [239] … I conclude that these symptoms are tied to a lack of stability and security that is related to the temporary nature of therelationship they have with the caregiver family and the uncertainty associated with contact with their natural family. [69] Having considered the composite of factors, the judge concluded: [240] … that a Temporary Custody Order [for the two younger children] would not best promote their safety, health, well-being,physical, emotional or developmental needs.

The evidence does not support the conclusion that, within a reasonable period, returning theChildren to [Ms. T.] would represent a reasonable long-term plan. [Ms. T.] has not established that she can remain free from the lure ofviolent relationships, drug or alcohol use. Even with supervision, I conclude that they would remain at risk for future turmoil, potentialfor neglect and another apprehension. Returning the younger Children to [Ms. T.] will not provide them with the best likelihood ofstability and permanency.

For the same reasons, I conclude that the second requirement (for an extraordinary third Temporary CustodyOrder for [the eldest child]) cannot be met. [241] My conclusion that [Ms.

T.’s] care does not represent a viable long-term option for them supports a need for finality for all threeChildren. … [70] In the result, the trial judge concluded that a continuous custody order for the three children was “the only realistic statutoryoption available to me on the facts of this case” (paragraph 243). [71] In determining whether the trial judge erred in refusing to order further temporary custody orders for the children, I begin withtwo propositions. First, the fundamental principle underlying the Children and Youth Care and Protection Act, as set out in

section 9, is: This Act shall be interpreted and administered in accordance with the principle that the overriding and paramount consideration in adecision made under this Act shall be the best interests of the child or youth. [72] Second, the standard of review of a decision of a trial judge in a matter such as this is stated in Director of Child, Youth andFamily Services, Health and Community Services Board (St. John’

s) v. J.F., 2006 NLCA 35, 259 Nfld. & P.E.I.R. 296: [16] The Director took no issue with the standard of appellate review argued for by JF. The standard identified by JF was thatexpressed by this Court in Director of Child Welfare (Nfld.) v. J.S. and G.B. (1994), (NL CA), 115 Nfld. & P.E.I.R.14, 360 A.P.R. 14. JF quoted Cameron J.A., at paragraph 14, as writing: [14] This appeal, as any review of a custodial disposition by a court of first instance, must be undertaken with caution. This follows froma basic rule that is well entrenched in the law.

It was expressed in the Supreme Court of Canada in New Brunswick (Minister of SocialServices) v. G.C.C., (SCC), [1988] 1 S.C.R. 1073; … by L’Heureux-Dubé, J. on behalf of the Court, at p. 1077 in thefollowing words: … trial judges’ decisions, particularly in matters of family law, should not be interfered with lightly by appellate courts absent an error inprinciple, a failure to consider all relevant factors, a consideration of an irrelevant factor or a lack of factual support for the judgment. … [73] In this case, Ms.

T. submits that Child, Youth and Family Services failed by not providing her with services comparable to thosegiven to the foster family, and that the trial judge erred by not assessing this as an exceptional circumstance pursuant to section 33(2) ofthe Act. However, based on the premise that the children should not be separated, the trial judge did, in fact, conclude that theexceptional circumstances requirement, regarding a third temporary order for the eldest child, had been satisfied. An additional basis forfinding exceptional circumstances was unnecessary. [74] Insofar as Ms.

T.’s submission was directed to the second requirement of section 33(2), that there was a reasonable expectationthat she would resume custody of the children within a reasonable period, the trial judge considered the disparity in services and theeffect of that factor on the appropriateness of an additional temporary order. Having carefully reviewed the evidence, the judgeconcluded that the reasonable expectation requirement was not satisfied. The main reason for this conclusion related to Ms. T.’s personaldifficulties related to alcohol and drug use and her failure to avoid a situation of domestic violence.

Had this not been the case, the judgeindicated she would have been open to returning the children to Ms. T. under a supervision order. In that case, the kinds of servicesprovided to the foster family to assist in raising the children would have been engaged. [75] Finally, Ms. T. submits, a second temporary custody order was an option for the two younger children without the legislativerequirement for special circumstances or the reasonable expectation that she would have custody of those children within a reasonableperiod.

However, the trial judge determined that, given all the circumstances, it was in the best interests of the three children not to beseparated. In light of the judge’s analysis and conclusions as set out above, and more fully in her decision, there is no basis on which toconclude that she erred in making that determination. In the result, where a temporary custody order was not an option for the eldest

child, the only possible order was continuous custody, applying to all three siblings. [76] In

summary, a review of the trial judge’s decision leads to the conclusion that she did not err in the exercise of her discretion torefuse a further temporary order for all or any of the children. The judge considered the evidence and applied the appropriate analysis,maintaining the best interests of the children as the overriding and paramount consideration. Raising a Charter Challenge at First Instance on Appeal [77] Ms. T. submits that legislation preventing a court from imposing conditions in a continuous custody order violates

section 7 ofthe Charter. Further, she submits, there is no bar to her raising that question on appeal when the issue was not argued at trial. Indeed,the issue was raised, but abandoned by Mr. L. at trial. On appeal, neither Mr. L. nor the manager objects to the Court considering theCharter issue. I note that the required notice of constitutional question under

section 57 of the Judicature Act, RSNL 1990, c. J-4, wasgiven to the Attorneys General. [78] The test for determining whether it is appropriate for an appeal court to hear a Charter issue at first instance is set out in Fowlerv. Atlantic Developments Inc., 2013 NLCA 58, 342 Nfld. & P.E.I.R. 189: [22] Whether a new issue may be raised on appeal is a matter in the discretion of the Court. The test to be applied is set out inMoakler v.

Conception Bay South (Town), 2006 NLCA 72, 262 Nfld. & P.E.I.R. 306: [11] In broad terms, the ability of a party to raise a new argument on appeal depends on the answer to two questions, namely, whether theissue can be dealt with by the appeal court without having to examine a different or expanded record from the court below, and whetherthe other side will be prejudiced in his or her ability to deal properly with the issue. … [79] In this case, the parties agree, and I accept, that the record is sufficient to permit this Court to consider the issue under

section 7of the Charter without a prior determination by the trial judge. In addition, there is no indication or claim that any party would beprejudiced if the Charter issue is heard at first instance in this Court. [80] This being a discretionary decision, an additional consideration, relevant in this case, is the importance of the issue from theperspective of development or clarification of the law and potential application in future cases where the manager is granted a continuouscustody order. [81] I emphasize that it is always preferable to have the benefit of the trial judge’s decision on all issues.

However, in this case,based on the foregoing factors, I would grant leave to argue the Charter question. Application of

Section 7 of the Charter [82]

Section 7 of the Charter provides: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [83] The issue is whether section 32(6)(

a) of the Act, which provides that a continuous custody order “shall not contain conditions”,infringes

section 7 of the Charter.

Section 7 has two components. In this case, it must first be established that the parent’s right tosecurity of the person is engaged. If that threshold is cleared, there will, in any event, be no breach of

section 7 if the deprivation of theparent’s security of the person is made in accordance with the principles of fundamental justice. [84] In this case, counsel agree, and I accept, that an order for continuous custody engages the parent’s

section 7 right to security ofthe person. (New Brunswick (Minister of Health and Community Services) v. G.(J.), (SCC), [1999] 3 S.C.R. 46, atparagraphs 61, 64 and 67.) The question, then, is whether the legislation precluding the court from adding conditions to a continuouscustody order results in a deprivation of the parent’s security of the person which is not in accordance with the principles of fundamentaljustice. [85] Ms.

T. submits that the “best interests of the child” is a principle of fundamental justice and that the legislative bar to the courtattaching conditions to a continuous custody order is not in accordance with that principle. I begin with the determination by theSupreme Court of Canada that the “best interests of the child” does not constitute a principle of fundamental justice.

In G.(J.)., LamerC.J.C., for the Court, explained: [69] While relieving a parent of custody of his or her child restricts the parent’s right to security of the person, this restriction maynevertheless be in accordance with the principles of fundamental justice. The principles of fundament justice “are to be found in thebasic tenets of our legal system”: Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, at p. 503.

It is a time-honoured principle that the state may relieve a parent of custody when necessary to protect a child’s health and safety. … [70] More recently, La Forest J., writing for three others in B.(R.) [ (SCC), [1995] 1 S.C.R. 315] held at para. 88 that The common law has long recognized the power of the state to intervene to protect children whose lives are in jeopardy and to promotetheir well-being, basing such intervention on its parens patriae jurisdiction; see, for example, Hepton v. Maat, [ (SCC),[1957] S.C.R. 606]; E. (Mrs.) v. Eve, (SCC), [1986] 2 S.C.R. 388.

The protection of a child’s right to life and to health,when it becomes necessary to do so, is a basic tenet of our legal system, and legislation to that end accords with the principles offundamental justice, so long, of course, as it also meets the requirements of fair procedure. Thus, the principles of fundamental justice in child protection proceedings are both substantive and procedural. The state may onlyrelieve a parent of custody when it is necessary to protect the best interests of the child, provided that there is a fair procedure for makingthis determination.

[86] Following G.(J.), the issue of whether the “best interests of the child” constitutes a principle of fundamental justice wasconsidered in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76. McLachlin C.J.C., for the majority, concluded that “the best interests of the child” is an important legal principle, but not a principle offundamental justice. She explained: [8] Jurisprudence on s. 7 has established that a “principle of fundamental justice” must fulfill three criteria: R. v. Malmo-Levine,[2003] 3 S.C.R. 571, 2003 SCC 74, at para. 113.

First, it must be a legal principle. This serves two purposes. First, it “providesmeaningful content for the s. 7 guarantee”; second, it avoids the “adjudication of policy matters” … . Second, there must be sufficientconsensus that the alleged principle is “vital or fundamental to our societal notion of justice” … . The principles of fundamental justiceare the shared assumptions upon which our system of justice is grounded. They find their meaning in the cases and traditions that havelong detailed the basic norms for how the state deals with its citizens.

Society views them as essential to the administration of justice. Third, the alleged principle must be capable of being identified with precision and applied to situations in a manner that yieldspredictable results. … See also: R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, at paragraphs 45 to 47. [87] The Chief Justice reviewed relevant factors and concluded that the “best interests of the child” is a legal principle meeting thefirst requirement of the analysis.

However, the second and third requirements to ground a principle of fundamental justice are notsatisfied: [10] … The “best interests of the child”, while an important legal principle and a factor for consideration in many contexts, is not vitalor fundamental to our societal notion of justice, and hence is not a principle of fundamental justice. [11] The third requirement is that the alleged principle of fundamental justice be “capable of being identified with some precision”(Rodriguez, [ (SCC), [1993] 3 S.C.R. 519], at p. 591) and provide a justiciable standard.

Here, too, the “best interests ofthe child” falls short. It functions as a factor considered along with others. Its application is inevitably highly contextual and subject todispute; reasonable people may well disagree about the result that its application will yield, particularly in areas of the law where it isone consideration among many, such as the criminal justice system.

It does not function as a principle of fundamental justice setting outour minimum requirements for the dispensation of justice. [12] To conclude, “the best interests of the child” is a legal principle that carries great power in many contexts. However, it is not aprinciple of fundamental justice. [88] Since the “best interests of the child” is not a principle of fundamental justice for purposes of

section 7, it is necessary toconsider whether there is another basis for concluding that the legislative bar to the court attaching conditions to a continuous custodyorder is not in accordance with the principles of fundamental justice. [89] I note that the bar came into effect on June 30, 2011 as a result of legislative amendment. Section 34(2) of the Child, Youth andFamily Services Act, SNL 1998, c. C-12.1, the precursor to the current legislation, provided for supervision, temporary or continuouscustody orders.

Subsection (3), applying to all custody orders, including those for continuous custody, provided: A judge may attach those conditions to an order made under subsection (2) that he or she considers appropriate. In addition, subsection (4) provided that, when granting a temporary or continuous custody order, the judge “may grant a parent or aperson significant to the child access to the child”. [90] Subsections (3) and (4) were altered by the 2011 amendments. The current legislation specifically permits conditions to beattached to temporary orders, but precludes attaching conditions to a continuous custody order.

This amendment demonstrates a clearlegislative intention to alter the law. The difference in treatment between temporary and continuous custody orders arises from thedifference in their objectives. The objective of an order which is intended to be temporary, is reunification with the parent. When atemporary order is granted, it is not intended that the manager would have long-term responsibility in place of the parent. By contrast, acontinuous custody order, subject to the possibility of rescission under

section 42 of the Act, is intended to be a long-term solution, withthe manager having responsibility as the child’s sole custodian with the right to make all decisions regarding the child, including consentto adoption (paragraph 9, above.) [91] Ms. T. submits that several other Canadian jurisdictions provide for the court to attach conditions to a continuous custodyorder. However, different legislation in other jurisdictions is not a valid basis on which to determine the constitutional validity of section32(6)(a).

The court may interfere only if the legislative choice is one that is not legally available due, for example, to a constitutionalimpediment. [92] Ms. T. submits that the bar to the court attaching conditions interferes with the inherent right of the court under its parenspatriae jurisdiction to make an order in the best interests of the child. That issue was considered in an earlier decision of this Courtdealing with prior legislation which gave the court discretion to make an order as to parental access where there was an order forcontinuous custody. At the core of the issue is whether

section 7 of the Charter requires that the court have the authority to make aninitial order as to parental access or whether the principles of fundamental justice are satisfied where the court has a supervisory role. For the following reasons, I conclude that the latter is the correct position, and that any resultant deprivation of the parent’s right tosecurity of the person under section 32(6)(

a) is in accordance with the principles of fundamental justice. [93] In J.B., Re, 2000 NFCA 58, 195 Nfld. & P.E.I.R. 44, Marshall J.A. addressed the question of the parens patriae jurisdiction ofthe court in the context of access by a parent where a continuous custody order had been made under the 1998 legislation. WhileMarshall J.A. wrote in dissent, the majority did not address this issue. I agree with the following discussion by Marshall J.A., which wasbased on the decision in Beson v. Director of Child Welfare (Nfld.), (SCC), [1982] 2 S.C.R. 716: [86] … where a statutory scheme relating to wardship of children vests decisions at first instance regarding access of parents to wards

in their appointed guardians, courts must exercise a high degree of deference towards those decisions, and may not simply substitute their own views as to the correct disposition under the guise of exercising their parens patriae jurisdiction.

Hence, while it may be correct to assert that a judge’s general inherent jurisdiction in these matters may not be delegated, where statutory direction exists in which original decisions regarding such matters are left to a ward’s guardian, then the investing in the guardian of the resolution of questions as to where and how parents may fit into the lives of children apprehended from them is not a delegation of judicial power, but rather a manifestation of deference to the legislative scheme . Translated to the circumstances at bar, the trial judge’s leaving the determination to the Director of how Mr.

B. was to fit into his son’s life whilst the boy was a permanent ward was in concert with the law’s endowment of the Director with legislative power to make original determinations of what was in a child’s best interests . … [89] Just as the judge’s leaving of the access question to the Director was in concert with reason and legal principle, so too the discretionary decision whether to grant or refuse access to a child under permanent wardship was within the scope of the Director’s powers. It is true the statute conferred no explicit power in the Director to determine parental access during permanent wardships.

However, its overriding instruction that the best interests of the ward are to permeate all applications of the legislation would appear to provide sufficient scope for such access, and leave decisions as to the wisdom of permitting it to the Director as guardian of the child’s best interests.

This would mandate the question of access being determined by the Director, who is best positioned to make decisions regarding access in such instances . (Emphasis added.) [ 94 ] Section 32(6) of the Act provides that the manager is statutorily mandated, as the guardian of a child subject to a continuous custody order, to make all initial decisions regarding the care of the child, including access by a parent, while the court has only a supervisory role.

The decision in G.(J.) supports the conclusion that such a scheme is in accordance with the principles of fundamental justice. [ 95 ] The issue in G.(J.) was whether, based on

section 7 of the Charter , in the particular circumstances of that case, the parent had a right during a custody hearing to legal representation paid for by Her Majesty. As noted above, the Court accepted that protection of a child, “when it becomes necessary to do so, is a basic tenet of our legal system, and legislation to that end accords with the principles of fundamental justice, so long, of course, as it also meets the requirements of fair procedure” ( G.(J.) , at paragraph 70 , paragraph 33, above). [ 96 ] Procedural fairness may be satisfied in different ways depending on the particular issue.

In this case, the following factors are relevant. First, the legislation is clear that, when a continuous custody order is made, the manager stands in the place of the parent for purposes of making decisions respecting the child. The manager is legislatively required to act and make decisions in the best interests of the child. To this end, the manager has resources to assist in carrying out this responsibility. In addition, the manager has access to relevant background information that is as complete as possible.

If a parent requests access to a child who has been placed in continuous custody, the manager is legislatively required to decide whether to grant access based on the principle that the overriding and paramount consideration is the best interests of the child. If the manager refuses the parent’s request for access, that decision is reviewable by the court. In effect, the court has a supervisory role as discussed in J.B. [ 97 ] Ms. T. submits that this is not adequate because the standard of review of the manager’s decision would be one of reasonableness.

I note that, while questions of fact and mixed fact and law would be governed by the reasonableness standard, a standard of correctness would apply to questions of law. In any event, the best interests of the child remains the paramount and overriding consideration fundamental to the court’s assessment and determination. (See, for example, Manager of Child, Youth and Family Services (Nfld. and Lab.) v.

A.B. , 2013 NLTD(F) 1, 333 Nfld. & P.E.I.R. 132, at paragraph 36 .) [ 98 ] Further, under its parens patriae jurisdiction, the court retains the authority to intervene where the manager has acted capriciously, arbitrarily or in bad faith, or for some other wrong purpose, or has improperly exercised his or her discretion ( K.P. v. Eastern Regional Integrated Health Authority , 2009 NLCA 42 , 288 Nfld. & P.E.I.R. 37, at paragraphs 36 , 38, 41 and 65). [ 99 ] In Manager of Child, Youth and Family Services (Nfld. and Lab.) v.

A.B. , supra , Le Blanc J. considered circumstances where it was clear that the children could not be returned to the care of their parents. However, the parents had been provided access visits with the children. The manager indicated that, as long as it was in the children’s best interests, provision for access would continue. Le Blanc J. was satisfied that this was adequate, and that, even if he had the jurisdiction to attach a condition to the continuous custody order, he would not do so.

He explained: [31] …In fact, I am satisfied in this case that even if [attaching a condition concerning parental access to the continuous custody order] were permitted legislatively, in all likelihood, I would not make it a condition of the order as I do not want to unduly tie the hands of the Manager to react quickly to protect the best interests of the children.

Here, it is clear to me that while continued access is presently in these children’s best interests, based upon some of the things that have occurred in the past and the past inability or unwillingness of the parents to resolve parenting deficiencies, it may not continue to be in the best interests of these children to permit access at some point in time in the future.

As a result, it is appropriate that the Manager, who will have the care and custody of the children, be able to react to any issues that arise in the event there is a need to suspend access or, alternatively, at some point in time to even end such access if the parenting issues become so serious that they impact the best interests of the children and outweigh the bond that exists between them and their parents. [32] As well, I would point out that even if I were inclined to feel it necessary to impose a condition as part of the continuous custody order regarding ongoing access, the most I would likely do in these circumstances would be to provide for such access, but only so long as it is deemed by the Manager to be in the children’s best interests. [ 100 ] Finally, Ms.

T. submits that the law precluding the court from attaching conditions to a continuous custody order is arbitrary. It is accepted that an arbitrary law is inconsistent with the principles of fundamental justice ( Chaoulli v. Quebec (Attorney General) , 2005 SCC 35 , [2005] 1 S.C.R.791, at paragraph 129 ). McLachlin C.J.C. and Major J. wrote:

[130] A law is arbitrary where “it bears no relation to, or is inconsistent with, the objective that lies behind [it]”. To determine whether this is the case, it is necessary to consider the state interest and societal concerns that the provision is meant to reflect: Rodriguez , at pp. 594-95. [131] … The question in every case is whether the measure is arbitrary in the sense of bearing no real relation to the goal and hence being manifestly unfair. … [ 101 ] That test, referring to Chaoulli , is reiterated in the decisions in Canada (Attorney General) v.

Bedford , 2013 SCC 72 , [2013] 3 S.C.R. 1101, and Canada (Attorney General) v. Carter , 2015 SCC 5 , [2015] 1 S.C.R. 331. As summarized in Bedford : [96] The Motor Vehicle Reference recognized that the principles of fundamental justice are about the basic values underpinning our constitutional order. The s. 7 analysis is concerned with capturing inherently bad laws: that is, laws that take away life, liberty, or security of the person in a way that runs afoul of our basic values. The principles of fundamental justice are an attempt to capture those values.

Over the years, the jurisprudence has given shape to the content of these basic values In this case, we are concerned with the basic values against arbitrariness, overbreadth, and gross disproportionality. … [119] As noted above, the root question is whether the law is inherently bad because there is no connection , in whole or in part, between its effects and its purpose. … This is a matter to be determined on a case-by-case basis, in light of the evidence. [Italics in original.] [120] Gross disproportionality asks a different question from arbitrariness and overbreadth.

It targets the second fundamental evil: the law’s effects on life, liberty or security of the person are so grossly disproportionate to its purposes that they cannot rationally be supported. The rule against gross disproportionality only applies in extreme cases where the seriousness of the deprivation is totally out of sync with the objective of the measure. … [ 102 ] As applied in this case, it cannot be said that section 32(6)(

a) is inconsistent with the referenced principles of fundamental justice. It is not arbitrary, overbroad or grossly disproportionate. Section 32(6)(

a) has the effect of placing the responsibility for decisions regarding children for whom a continuous custody order has been made with the manager. Decisions of the manager are subject to review by the court. This procedure cannot be said to be inconsistent with or bear no relation or connection to the legislative objective of ensuring the well-being of children in need of protection, with the overriding and paramount consideration being the best interests of the child.

The legislative choice for achieving this objective is not manifestly unfair. [ 103 ] To summarize, when a child is taken into care and the court determines that a continuous custody order is required, to the extent that the legislative scheme, including the bar to attaching conditions to the order, results in a deprivation of the parent’s security of the person, such deprivation is in accordance with the principles of fundamental justice. Accordingly, there is no breach of

section 7 of the Charter . [ 104 ] While it is unnecessary for the decision, I would add that there is no reason to conclude that the courts are in a better position to make a determ

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