L.H. v. H.M., 2023 NLCA 32

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation : L.H. v. Newfoundland and Labrador (Child, Youth and Family Services), 2023 NLCA 32 Date : October 20, 2023 Docket Number : 202201H0018 BETWEEN: L.H. and H.M. APPELLANTS AND: MANAGER OF CHILD, YOUTH AND FAMILY SERVICES RESPONDENT Restriction on Publication : 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 55 of the Children, Youth and Families Act . Coram: D.E. Fry C.J.N.L., F.P. O’Brien and D.M. Boone JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador, Family Division 201902F0194 Appeal Heard: June 14, 2023 Judgment Rendered: October 20, 2023 Reasons for Judgment by: D.E. Fry C.J.N.L. Concurred in by: F.P. O’Brien and D.M. Boone JJ.A Counsel for the Appellants: Daniel M. Glover Counsel for the Respondent: Jason N. House Authorities Cited: CASES CITED: Newfoundland and Labrador (Child, Youth and Family Services) v. L.H. (10 February 2022), 201901F0194 (NLSC);

M.K. and R.P. v. Newfoundland and Labrador (Child and Youth Services), 2018 NLCA 34, 3 C.A.N.L.R. 26; B.J.T. v. J.D., 2022 SCC24; Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014; Manager of Child, Youth and Family Services (Nfld. and Lab.) v.T.R., 2014 NLCA 19, 348 Nfld. & P.E.I.R. 96; New Brunswick (Minister of Health and Community Services) v. G. (J.), (SCC), [1999] 3 S.C.R. 46; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; Dakota Ojibway Child and Family Services et al v.M.B.H., 2019 MBCA 91, leave to appeal to SCC refused, 38907 (19 March 2020); Kawartha-Haliburton Children's Aid Society v.

M.W.,2019 ONCA 316; L.M. v. Peel Children’s Aid Society, 2019 ONCA 841; Newfoundland and Labrador (Child and Youth Services) v.N.N., 2017 NLTD(F) 26, 2017 CarswellNfld. 268; J.B., Re (1998), (NL CA), 166 Nfld. & P.E.I.R. 1 (NFCA), leaveto appeal to SCC refused, 26931 (7 January 1999); Manager of Child, Youth and Family Services (Nfld. and Lab.) v. L.F. et al., 2013NLCA 55, 340 Nfld. & P.E.I.R. 57; K.P. v. Newfoundland and Labrador (Child and Youth Services), 2018 NLCA 35, 3 C.A.N.L.R. 40;Director of Child, Youth and Family Services (Nfld. and Lab.) v.

L.T. et al., 2011 NLCA 1, 304 Nfld. & P.E.I.R. 134; Director of Child,Youth and Family Services, Health and Community Services Board (St. John’

s) v. J.F. et al., 2006 NLCA 35, 259 Nfld. & P.E.I.R. 296. STATUTES CONSIDERED: Children, Youth and Families Act, SNL 2018, c. C-12.3, sections 32(2), 10(1)(a), 10(1)(c), 10(1)(l),31(2)(e), 33(1), 9, 33(2), 51; Canadian Charter of Rights and Freedoms,

section 7; Child, Youth and Family Services Act, SNL 1998, c.C-12.1,

section 50 as it appeared on April 2011. RULES CONSIDERED: Rules of the Supreme Court, 1986,

Part IV, Supreme Court Family Rules, rule F28; Rules of the SupremeCourt, 1986, SNL 1986, c. 42,

Schedule D; Rules of the Supreme Court, 1986, SNL 1986, c. 42,

Schedule D, rule 56A.75 as it appearedon June 2010. D.E. Fry C.J.N.L.: INTRODUCTION [1] Twin children, born in the spring of 2019, were placed in the continuous custody of the Manager under section 32(2)(

d) of theChildren, Youth and Families Act, SNL 2018, c. C-12.3 (the “Act”), due to their need for protective intervention under section 10(1)(a),(c) & (

l) of the Act. The order also provided for continued access between the children and L.H. and H.M., as determined by the Managerto be in their best interests. L.H. and H.M. are appealing the continuous custody order, which was made following a

summary judgmenthearing under rule F28 of the Rules of the Supreme Court, 1986,

Part IV, Supreme Court Family Rules. [2] They submit that a

summary judgment proceeding cannot meet the requirements of fundamental justice and proceduralfairness pursuant to

section 7 of the Canadian Charter of Rights and Freedoms. They also submit that the Judge committed errors of factand law by reversing the onus of proof, unduly limiting options under the Act and failing to consider material evidence. BACKGROUND [3] L.H. and H.M. have been in a relationship for approximately 20 years. They have three older children, now 16, 17 and 20 yearsof age. The family had frequent involvement with Child, Youth and Family Services over the years. These three children had significantdevelopmental delays.

The parents did not regularly provide them with their medication and did not ensure they consistently attendedtheir medical appointments. Treating physicians reported possible signs of parental neglect. School attendance was an issue with the threechildren. The parents received access to a number of programs and supports, but despite being cooperative and polite with supportworkers and completing parenting programs and training, there was no lasting change in behaviour. [4] The three older children were, with the consent of the parents, placed in the continuous custody of the Manager on May 25,2018.

The three older children reside in foster placements and the parents maintain telephone and electronic communication with them. [5] The twins, who are the subject of this appeal, were born in the spring of 2019 after a break in the relationship between L.H.and H.M. H.M. is not the biological father of the twins. The twins were apprehended from their mother, L.H. at the time of their birth, bya warrant to remove issued by a judge. H.M. accepted a parental role with regard to the twins as he and the mother reconciled.

He wasadded as a party to proceedings involving them. [6] An application for a protective intervention hearing was filed by the Manager the day after the apprehension. A presentationhearing commenced eight days later and concluded with an order, filed April 9, 2019, placing the twins in the care of the Manager untilthe conclusion of the protective intervention hearing (Act, at s. 31(2)(e)). The order imposed conditions on the parents, includingrequiring that they participate in a number of services and programs.

Both parties were represented by counsel. [7] On May 14, 2019, the parents consented to an order that declared the twins in need of protective intervention and placed themin the temporary custody of the Manager for six months under sections 32(2)(

c) and 33(1)(

a) of the Act. This order, filed June 19, 2019,also included similar conditions for the parents to engage in programs and services. Both parties continued to be represented by counsel. [8] On December 9, 2019, the Manager applied for a second temporary custody order of three months duration (the maximumamount of time for a second temporary order for children of this age under section 33(1)(

b) of the Act). [9] The Manager amended its application on February 3, 2020, seeking a continuous custody order for both children.

[ 10 ] Several case management hearings were held as the matter proceeded to the protective intervention hearing. At the case management hearing on November 19, 2020, hearing dates were set for June of 2021. The Manager had a parenting capacity assessment prepared and had provided it to counsel for the parents. On this date, the parents indicated that they would seek an independent parenting capacity assessment. Both parties continued to be represented by counsel. [ 11 ] On May 7, 2021, at a trial readiness hearing the Court was advised that the parties had separated.

H.M.’s lawyer was given leave to withdraw and H.M. was struck from the proceedings. The Court was also advised that the independent parenting capacity assessment was not completed. [ 12 ] On May 27, 2021, H.M. appeared on his own at a further trial readiness hearing and advised that he had changed his mind and wanted to be added back as a party to the proceedings.

He was advised by the Court to contact Legal Aid so that the proper application could be made. [ 13 ] On June 10, 2021, at a further trial readiness hearing, counsel for the mother was advised that the matter could go ahead if an unrelated scheduled matter did not take as long as expected. Counsel for the mother advised the Court that she had communicated the possibility to the mother that the matter may not proceed as scheduled, and she did not oppose setting another date. [ 14 ] On August 31, 2021, the Manager filed an application to have the matter determined by

summary judgment hearing pursuant to rule F28 of the Supreme Court Family Rules. A case management hearing was set for September 20, 2021, for that purpose in accordance with rule F28.02. [ 15 ] On September 20, 2021, H.M. appeared with counsel, having filed an application to be added back to the proceedings, and on October 18, 2021, he was reinstated as a respondent in the proceedings. [ 16 ] A case management hearing to consider the

summary judgment application and other related matters was heard on October 29, 2021. The independent parenting assessment by Lorna Berndt Piercey, a psychologist retained by L.H., had been completed and both parents consented to it being provided to the Manager. [ 17 ] At the case management meeting, the Judge considered the positions of the parties with respect to proceeding by way of the

summary judgment procedure including how the evidence would be presented. There was agreement that the three parenting capacity assessments and the social workers’ affidavits would be filed as consent exhibits. The parents requested that the Daybreak Home Visitation Program worker give oral evidence, and that they themselves be permitted to give oral evidence rather than affidavit evidence. [ 18 ] The parents conceded that the twins remained in need of protective intervention and the only contested issue was the appropriate order, temporary or continuous custody. Counsel for the parties discussed the provisions of rule F28.03(

c) which provided that a judge may, “order that oral evidence be presented by one or more parties at the hearing…”. [ 19 ] The Judge reserved the decision on whether to grant leave or dismiss the request for a

summary judgment hearing under rule F28.03. [ 20 ] On November 5, 2021, the Judge determined that leave should be granted to proceed with a

summary judgment hearing. The Judge noted that the final determination as to whether or not there was a genuine issue requiring a trial remained open for determination at the

summary judgment proceeding, once all the relevant evidence was before the Court. The Judge confirmed that the Manager would rely on affidavits from two social workers and three parenting capacity reports. From the parents, there would be evidence in the form of affidavits as well as oral evidence from the parents’ Daybreak home care worker, who would give direct evidence and be subject to cross-examination. All counsel agreed to filing dates for briefs and a full day, December 6, 2021, was set for the

summary judgment hearing. The

summary judgment hearing [ 21 ] The

summary judgment hearing proceeded on December 6, 2021, with all parties represented by counsel.

The Manager reviewed the affidavits of social workers, Karen Oliver, who was the Protective Intervention Program social worker for the family as of February 20, 2020, and Karen Pratt, the social worker who had been the case manager for the family since July 2021. [ 22 ] The Manager also filed a number of exhibits outlining risk assessments, services and supports, and three Parenting Capacity Assessments prepared by Beverley McLean, R Psych. (September 11, 2017), Kristen Hynes, MSW, RSW (December 20, 2019), and Lorna Berndt Piercey, M.Sc. R.

Psych. (May 31, 2021). [ 23 ] The parents and the maternal grandmother each filed affidavits. Oral evidence was provided by Kim Hendry, a family support worker with Daybreak Home Visitation Program (at the request of the parents) and Ms. Pratt. [ 24 ] In her oral decision of February 10, 2022, Newfoundland and Labrador (Child, Youth and Family Services) v. L.H. , 201901F0194 (NLSC), the Judge outlined four questions she was required to determine during the course of the

summary judgment hearing:

(1) Is there a genuine issue requiring a trial?

(2) If not, is this an appropriate case for a

summary judgment?

(3) Are the twins in need of protective intervention pursuant to

section 10 of the Act ?

(4) If so, what is the appropriate order pursuant to section 32(2) of the Act ? [ 25 ] The parents and their counsel conceded that the children were in need of protective intervention and that the parents needed

more time in order to prepare to parent the children safely. The Judge was satisfied that based on the evidence before her that the children were in need of protective intervention under section 10(1) (a), (c) & (

l) of the Act . No appeal was taken on this finding. [ 26 ] The only issue that was left for the Judge to consider was the type of order that should be made. The parents’ position was that a further three-month temporary custody order should be made. The Manager’s position was that a continuous custody order was in the children’s best interests. [ 27 ] The Judge found that there was no genuine issue requiring a trial. The Judge determined that it was an appropriate case for

summary judgment hearing on the basis that “having considered the issues involved and the evidence presented, I conclude that the record is sufficient to permit me to fully consider the application for continuous custody” (Decision, at page 35, lines 17-22). [ 28 ] The Judge in her decision at page 37, lines 20-25, and page 38, lines 1-25, made the following observation about the timelines outlined in the Act . Under the Act, there can only be a further three-month temporary custody order where the child is less than six years of age.

Section 33 of the Act limits the amount of time that a child needs to—that a child in need of protective intervention can remain in the temporary custody of the Manager. Subsection 33(2) of the Act provides that a judge can only make two orders for temporary custody unless there are exceptional circumstances and where it is reasonably expected the parents can resume custody of the children within a reasonable time. At this point, the twins have been in the care of the Manager nearly three years.

This goes well beyond the period of time contemplated by the Act which limits the length of and number of orders a Court can make for a child under six years of age. The evidence is uncontradicted that the parents do not presently have the capacity to safely parent the twins, nor is it reasonable to expect that their capacity to parent can improve given their intellectual deficiencies described in the Parenting Capacity Assessments.

There was no evidence led which would indicate that three to six months would be a sufficient time for the parents to be ready to resume care of the twins. [ 29 ] The Judge carefully reviewed the oral evidence of Ms. Hendry, a witness called by the parents. Ms. Hendry worked with Daybreak Child Care Centre as a family support worker. Her primary function was to assist families that had been referred by the Department of Children, Seniors and Social Development (the “CSSD”) with building parenting skills by providing the appropriate tools and resources. She was examined and cross-examined. [ 30 ] Ms.

Hendry was the family support worker for this family from April 2019, to April 2020. She conducted home visits for two hours twice a week and, occasionally, three time per week. The twins came from their foster placement to the parents’ residence for these visits. She testified that she observed the parents with the twins for a one-year period. She indicated that the parents were receptive to any suggestions she provided them. She observed improvements over time. She was asked whether she thought the parents were capable of parenting and noted that there was potential for improvement.

She could not say if six months would be sufficient time. [ 31 ] Ms. Hendry was not aware of the couple’s separation in 2021 and that H.M. had not seen the twins for an extended period of time.

She also testified that she was unable to comment on their current ability to parent two children nearly 3 years of age (at the time of the hearing), since she had only observed infant care for short periods of time. [ 32 ] The Judge also reviewed the social workers’ affidavits which outlined their interactions with the family, the services provided, and the ongoing supervised access visits which were provided by CSSD in order to assess whether reunification was possible.

There was no request by counsel for the parents to cross-examine, which was permitted pursuant to rule F28.04. [ 33 ] The Judge also considered the concerns raised in the social workers’ affidavits regarding the circumstances of the three older children. [ 34 ] Ms. Oliver was the protective intervention program social worker for this family from February 20, 2020.

She recounted that throughout the Manager's involvement with the parents with respect to the three older children, there were significant interventions and services provided in an attempt to maintain the family unit and keep the children safe from harm. [ 35 ] The Judge outlined some of the social worker’s evidence as follows at pages 9-10 of her decision: Unfortunately, despite the services and interventions including Daybreak, Behaviour Management Services, the Voice Program, Empowerment Group and a parenting course, service providers reported that while the parents were compliant and polite in their engagement of service, they questioned the parental ability to retain and understand the information being provided to them.

There was evidence of extensive verbal violence between the mother and father which often resulted in police response and the eldest child, [S.], becoming physically violent. There were mental health concerns noted in [S.] including anger, difficulty with emotional regulation, self-harming behaviours, suicidal thoughts and panic attacks. All three children were on medication. There was evidence that the children were not being provided their medication on a consistent basis; nor were they consistently attending medical appointments for follow-up as required.

Significant concerns were reported by the treating physicians regarding possible signs of parental neglect and parental failure to follow through on required medical treatment. There were also concerns noted with respect to the physical care provided to the children and ongoing hygiene issues especially in relation to head lice. The file notes reveal that the eldest child, [S.], had head lice for over a year which went untreated. The mother reported she did not know how to treat it, despite being provided with the medication and given instructions on multiple occasions as to how to use it.

The infestation for [S.] was severe, such that it affected her emotionally and she did not want to return to school. School attendance was also reported to be a concern for the other two children. Despite discussions with the parents to address this issue,

the school continued to report extremely low attendance. … [ 36 ] Ms. McLean, registered psychologist, conducted a parenting capacity assessment dated September 11, 2017, prior to the three older children being placed in the care of the Manager. Her report was entered as an exhibit at the

summary judgment hearing and considered by the Judge. Ms. McLean indicated that the purpose of a parenting capacity assessment is to assess the parents’ ability to ensure that they can meet the basic safety and emotional needs of the children. “It considers the lowest threshold of parenting skill necessary to protect a child’s welfare given the risks and protective factors present in the family” (Decision, at page 12, lines 9-13). [ 37 ] The Judge described Ms.

McLean’s conclusions with regard to the older children this way: “The parents were overwhelmed by the degree of the children’s’ emotional and behavioural problems and [ sic ] inability to develop an effective response to these emotional and behavioural issues. [The parents] did not demonstrate the capacity to parent their children in a safe and nurturing environment individually or as a couple” (Decision, at page 15, lines 2-10). [ 38 ] The Judge noted that since the three older children were placed in the custody of the Manager, in May of 2017, all three children have progressed academically, behaviourally, and emotionally.

Both parents have maintained contact with the children through in-person visits, telephone, and electronic means. The parents consented to the continuous custody order on May 25, 2018. [ 39 ] With respect to the twins born in 2019, the Judge described the social worker’s affidavit as raising similar concerns to those set out in Ms. Mclean’s conclusions with respect to the three older children.

In addition to the Daybreak Home Visitation Program, the Manager also provided supervised access workers to work with the family to have more access than the four hours per week provided by the Daybreak worker. [ 40 ] The Judge reviewed the observations in the first parenting capacity assessment with respect to the twins. This assessment prepared by Ms. Kristen Hynes, completed on December 20, 2019, was also entered as a consent exhibit. [ 41 ] Ms. Hynes concluded that the parents do not have the capacity to parent the twins any differently than they did the three older children.

She also noted that there were no recommendations to be made regarding additional services as the parents had already accessed a multitude of programs and services. [ 42 ] The Judge, at pages 22-24 of her Decision, describes Ms. Hynes’s observations: Ms. Hynes stated that the progress of the three children had made since being placed in foster care, further reinforces the impact of their chaotic home environment on their overall growth and development. … … “Both [the mother and the father] received parent training with their older children from multiple service providers.

They can articulate the things they learned from these service providers. However, based on both the file review and the interviews with the parents, they were not able to implement the things that they were taught. They followed the suggestions in the moment and the children were observed as responding positively. However, the parents were not able to continue with the skills outside the formal sessions. This appears to be the case now. While Daybreak staff are in the home, the parents are observed as interacting well together, tending to the needs of the children and implementing the skills taught.

However, when the supervised access worker is present, the interaction in the home is different. The visits are spent predominately watching television. There has been tension between the parents on multiple occasions and [the father] has spent time in bed during a significant number of visits. Given that Daybreak is in the home only twice per week for one and a half hours each time, it is not unexpected that the parents would be able to maintain positive routines for that amount of time and then struggle to do the same during the longer more regular supervised visits." Ms.

Hynes observed that as the children get older, their needs become more complex. Her file review confirms that [the parents] had difficulty meeting their older children’s needs and were not able to maintain the things they were taught in their programs. While they are able to meet some of the twins’ basic needs, it requires a structured supervised and supportive environment.

Their relationship remains unstable with three separations since their older three children were taken into care in 2017 with the most recent separation being in 2021. [ 43 ] The Judge reviewed the affidavit evidence adduced on behalf of the parents as follows at pages 24-27 of her Decision: … [The mother] provided a brief affidavit in response to the Manager’s application. She confirms participation in three programs since the twins’ birth including Nobody is Perfect in December 2020, Health Relationships Information in August 2019 and a Grief Loss Education and Action Group in December of 2019.

The mother reports… that the father and her mother are good supports for her in raising the twins. From April 2019 to September 3rd, 2020, she and the father were actively engaged and participated in the Family Home Visitation Program. They had more contact with the twins when reunification was the goal, however, since the Manager applied for continuous custody, their visitation time was reduced. Their visitations are limited to two hours twice per week. The mother states that she couldn't attend the medical appointments for the twins because CYS cut her taxi funding. Ms.

Oliver stated in her affidavit that the mother was told that if she was serious about parenting the twins full time, she would have to demonstrate that she was able to attend the medical appointments by using the supports she had reported to CYS that she had. In response, the mother states that if the twins were returned to her care, she would ensure that they attend all of the required services, including medical appointments. She did not, however, elaborate on how that would be accomplished.

An affidavit was also filed from the children’s’ maternal grandmother [L.P.]… She lives near her daughter and is within a 20-minute walk from her home. She says she and her daughter are in daily contact and that, in her opinion, the mother and father dearly love the twins and are capable of parenting them. She can assist them with babysitting and provide them with emotional support and care of the children. [The father] filed an affidavit. In it, he states that he is committed to [the mother] and wishes to parent the twins together.

He claims that he and [the mother] no longer argue like they used to, adding that he no longer drinks alcohol. He states that he suffers from depression,

but is taking his medication and thinking clearly and sleeping better. He states that they have a clean basement apartment with a room for the twins and two cribs and a change table. He denies that [the mother] has a hygiene problem and states that she showers daily--twice daily. The father also notes that the reason the mother was unable to attend the medical appointments with the twins is because CYS had cut her taxi funding. Lastly, he denies that they lack the intellectual capacity to parent the twins. [ 44 ] Counsel for the Manager did not seek to cross-examine the parents.

The parents were represented by separate counsel. There was no request by either counsel to allow the parents to supplement their affidavits with oral evidence. [ 45 ] The maternal grandmother’s affidavit did not detail any role she may have had in assisting with the parenting of the three older children before they were removed from their parents’ care. [ 46 ] A discussion of hygiene, referenced in the father’s affidavit, was in response to the social workers’ reports and observations in Ms.

Piercey’s parenting capacity report at page 11 (Appeal Book, Vol. 2, Tab 37), that during the interview “[the mother] smelled extremely strongly in this session. The smell remained strong for the entire 1 1/2 hour session, despite my mask, an air exchanger, and an open window.” Ms. Piercey’s report continues at page 15: Cleanliness and personal hygiene are other problems for [the mother]. These concerns were noted in the past, e.g. personal hygiene and [S.’s] head lice.

Similar concerns were noted in the access visits with the twins, as the children ate food that had dropped on the floor, used bottles that had fallen on the floor, or did not have their diapers changed during two of the 3-hour visits. The access workers had to prompt [the mother] to stop the children from putting inappropriate things in their mouths, as she did not appear to be concerned by this at all. She denied that the turtle tank smelled, even though the workers were unable to stay in the home because of the smell. Her own personal hygiene was noticeably bad on a couple of occasions.

If the children were returned to her, it is likely that their hygiene would become a problem, as [the mother] does not seem to recognize the importance of cleanliness. [47] Ms. Piercey determined, at page 11, that the mother had substantial intellectual difficulty affecting her ability to learn new information, form concepts, recognize cause and effect, use logical reasoning, and anticipate consequences.

These results [of the tests] explain why, for example, [the mother] had difficulty in putting the babies’ snowsuits on them, why she continued to heat bottles in the microwave, why she was unable to treat [S.’s] head lice, why she continued to place the babies alone on the couch, and why she has a limited understanding of why her children were removed from her care. It is difficult for her to follow instructions and to remember explanations. She is relatively unable to anticipate danger; that is, she does not “see” what might happen in certain circumstances.

Furthermore, she does not learn easily from past mistakes or events; she would need much repetition of events in order to learn what to do (or to avoid doing). [48] Ms. Piercey, at page 13, expressed concern for the twins’ safety as follows: As mentioned earlier, she simply does not anticipate dangers and therefore does not prevent accidents, nor does she react appropriately when potentially dangerous situations arise.

This was seen when she continued to place the babies on the couch and let them roll and fall onto the floor, when she continued to heat bottles in the microwave despite instruction to not do so, when she did not notice that [female twin] was chewing on something and didn't check when she was told about it, when she did not clean the babies’ bottles when they fell on the floor, or when she continued to place snacks within [male twin’s] reach even though she had been told that these could make him vomit.

I believe that she does not want her children to be hurt in any way, and that her inability to ensure their safety is not a result of a lack of concern, but she does not have the intellectual ability to perceive a logical sequence of events and therefore cannot act accordingly. This problem is significant when the children are babies and toddlers, but is no less a problem as they age. While they may no longer fall off a couch, they will be mobile and able to grab things, fall off playground equipment, or run away from her on a street.

She is unlikely to monitor their activity closely and to anticipate the likelihood of danger in their vicinity. Part of this problem is that [the mother] seems to expect that the children can manage situations for themselves. She may have thought that they could stay on the couch or that [female twin] would spit out the rock on her own, or that [male twin] would recognize that he shouldn't eat certain snacks.

It is clear that, with her three older children, she did not take responsibility for aspects of their welfare, for example, expecting them to decide to go to bed at a reasonable hour and to decide to go to school. ISSUES [49] The issues that arise in the context of this appeal are as follows: 1. Can a

summary judgment hearing, in the circumstances of this child protection matter, meet the requirements of fundamental justice and procedural fairness pursuant to

section 7 of the Charter ? 2. Did the Judge commit errors of fact and law by reversing the onus of proof, unduly limiting the options available under the Act , and failing to consider material evidence? STANDARD OF REVIEW [50] In M.K. and R.P. v. Newfoundland and Labrador (Child and Youth Services) , 2018 NLCA 34 , 3 C.A.N.L.R. 26, this Court described the standard of review in child protection matters this way: [10] The standard of appellate review in child protection proceedings was outlined in T.R. v. Newfoundland and Labrado r (Child, Youth and Family Services) , 2014 NLCA 19 , 348 Nfld. & P.E.I.R. 96, where Mercer J.A. stated:

18 Whether procedural fairness was observed is an issue of law and accordingly the applicable standard of review on appeal is that ofcorrectness. Appellate deference to a trial decision respecting child protection applies to “fact-based and discretionary family lawdecisions unless manifest error is found” (see Grimes v. Grimes, 2012 NLCA 68, 329 Nfld. & P.E.I.R. 29, at para. 24).

Where thestandard of correctness does not apply, while the role of the appellate court “is not to retry the case in the sense of making its own findings of fact and substituting its opinion for that of the trial judge, neverthelessit is part of the function of appellate review to review the record generally to satisfy itself that there is evidentiary support for theconclusion which the trial judge reached.” J.B., Re (1998), (NL CA), 166 Nfld. & P.E.I.R. 1 (NLCA) at para. 141, see also para. 43. [11]

Section 9 of the Act outlines the paramount consideration in child protection proceedings and must be considered upon appellatereview: 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. [51] The Supreme Court of Canada in B.J.T. v. J.D., 2022 SCC 24, at paragraph 52, confirmed that in determining the best interestsof the child in custody matters, Van de Perre v.

Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at paragraph 11, governs:“an appellate court is not entitled to intervene unless there has been “a material error, a serious misapprehension of the evidence, or anerror in law”.” The Court also determined that the best interests of the child is also the guiding principle in child protection matters andthat the appellate standard of review is no different (B.J.T., at para. 59). [52] In B.J.T., at paragraph 53, the Court observed: To assess the best interests of a child, courts apply a multi-factorial legal standard, although different statutes may articulate theindividual factors in slightly different ways.

It is a highly contextual and fact driven exercise that involves a high level of judicialdiscretion: a case-by-case consideration of the unique circumstances of each child is the hallmark of the process… [53] At paragraph 57, the Court added: This narrow scope of appellate review means that, absent a material error, the “Court of Appeal is not in a position to determine what itconsiders to be the correct conclusions from the evidence.

This is the role of the trial judge”… [54] Applying the appropriate standard of review will engage a correctness standard when considering the parents’ arguments that asummary judgment hearing violated their

section 7 Charter rights in that this process did not provide sufficient procedural fairness in thecircumstances of this matter. When the correctness standard does not apply, I will review the record to determine whether, absent amaterial error, there is evidentiary support for the conclusion reached by the Judge. ANALYSIS ISSUE I: Can a

summary judgment hearing, in the circumstances of this child protection matter, meet the requirements offundamental justice and procedural fairness pursuant to

section 7 of the Charter? [55]

Section 7 of the Charter states: 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. [56] The parents’ counsel on appeal (not the same counsel as at the

summary judgment hearing) argues that a

summary judgmenthearing could never meet the requirements of fundamental justice and procedural fairness and further that a

summary judgment hearingwas not appropriate in the context of this case as there was a genuine issue for trial. [57] The Rules of the Supreme Court, 1986, SNL 1986, c. 42,

Schedule D, were amended in 2017.

Part IV, referred to as theSupreme Court Family Rules, came into force on March 1, 2017. These “new rules” apply to the conduct of family law procedures inthe Supreme Court of Newfoundland and Labrador. These rules included an extensive

summary judgment hearing rule (F28.01-F28.16)particularized for family law matters. [58] Prior to that,

summary judgment proceedings generally adapted the Supreme Court of Newfoundland and Labrador civil rulesto the family law context. Jurisprudence of this and other jurisdictions provided guidance as did general principles of fairness. [59] Manager of Child, Youth and Family Services (Nfld. and Lab.) v. T.R., 2014 NLCA 19, 348 Nfld. & P.E.I.R. 96, provides anexample of the use of a

summary procedure at an early stage of a child protection proceeding where there was no applicable rule orprocedure. This matter involved a child protection proceeding where the issue was whether procedural fairness could be maintained if afamily court judge made a continuous custody order at the preliminary stage of a presentation hearing, rather than, as is usually the case,at a protective intervention hearing. [60] This Court in T.R. confirmed that the requirement of procedural fairness is one of the principles of fundamental justicedeveloped at common law and engaged under the Charter. Its enduring importance in child protection proceedings under

section 7 hasbeen recognized by the Supreme Court of Canada in New Brunswick (Minister of Health and Community Services) v. G. (J.), (SCC), [1999] 3 S.C.R. 46. [61] In T.R., the Court outlined principles derived from the relevant jurisprudence relating to the rights of parents in custodyhearings involving children:

[22] To ensure effective parental participation in child custody hearings certain rights of the parents have been recognized. Theseinclude:

a) The right to observance of statutory notice requirements and disclosure of the case to which the parent or parents will have to respond(see Catholic Children’s Aid Society of Metropolitan Toronto v. L.O., (ON SC), [1996] 139 D.L.R. (4th) 534, O.J. No.3018, (Ont. C.J.) affirmed in Catholic Children’s Aid Society of Metropolitan Toronto v. L.O., (ON CA), [1997] 149D.L.R. (4th) 464, O.J. No. 3041, (C.A.));

b) The right to have a reasonable opportunity to respond to the case for removal of the child from parental care (see Children’s AidSociety of Halton Region v. K.L.A., (ON CA), [2006] O.J. No. 3958, 32 R.F.L. (6th) 7 (C.A.));

c) The right to have the case decided by an impartial judge. This common law right as described in R. v. S. (R.D.), (SCC), [1997] 3 S.C.R. 484 applies to child protection proceedings (see, for example, Marchand (Litigation guardian of) v. PublicGeneral Hospital Society of Chatham, (2000) (ON CA), 51 O.R. (3d) 97 (C.A.)); and

d) The right to representation by counsel in circumstances where the absence of counsel would result in an unfair hearing, therebyviolating the right to security of the person recognized in

section 7 of the Charter (see G.(J.)). [62] This Court in T.R. went on, at paragraph 23, to determine that the fair hearing principle does not necessarily require a full trialor hearing at which viva voce or oral evidence is presented: …In appropriate circumstances, a

summary proceeding may be preferable to protect the best interests of the child while ensuring theopportunity for effective parental participation. The Trial Division judge hearing a child custody proceeding under either s. 31 or 32 ofthe Act has the jurisdiction to determine the extent of the hearing including whether it should be

summary in nature (see L.O.). Theprovisions of

section 48 of the Act, stated above, respecting the nature of proceedings under the Act and the admissibility of non vivavoce evidence, are relevant in this regard. [63] At paragraph 24, Mercer J.A. outlined procedural safeguards to ensure a fair hearing: The parent must be clearly informed that a

summary order is being sought or is contemplated; The parent must be provided with disclosure by affidavit of the specific facts which are alleged to show that there is no genuine issuerequiring a full hearing; The parent must have a reasonable opportunity to respond to the foregoing; and The parent’s response, to be filed within a reasonable time, must set forth the alleged facts showing there is a genuine issue requiring afull hearing. [64] Mercer J.A. concluded at paragraph 32 that the trial judge in T.R. “throughout the presentation hearing, ensured that therequirements of procedural fairness were observed.

The trial judge did not err in his determination that there was no genuine issuerequiring a full hearing. There was a proper evidentiary basis for his conclusions that the child was in need of protective interventionand that the appropriate disposition was to place the child in the continuous custody of the Manager.” [65] In the matter currently under appeal, the

summary judgment order was not granted at the presentation hearing stage but rathermuch later in the process, at a protective intervention hearing, and after an application for a

summary judgment hearing under rule F28.Both parents were represented by counsel. There was disclosure by affidavit and exhibits. There were multiple case managementmeetings as well as a delay to provide the opportunity for the parents to seek an independent parenting capacity assessment. There wasclear information provided to the parents and their counsel that the order being sought was a continuous custody order. The parents wereprovided an opportunity to demonstrate that there was a genuine issue requiring a full trial. [66] It is argued by the parents that a

summary judgment hearing is never appropriate when a continuous custody order is beingsought, as that is the most drastic order that can be made. The parents argue if a continuous custody order is contested or if there iscontradictory evidence, a matter cannot be decided by

summary judgment without violating the principles of fundamental justice. [67] The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, in reviewing amendments to rule 20 ofthe Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 191 (the

summary judgment rule), discussed the new test and fact findingpowers to be employed in determining

summary judgment applications; that test being whether or not there is a genuine issue requiringa trial. After stating that there are no categories of cases where

summary judgment is or is not appropriate, and that even complex casesinvolving a voluminous record are not exempted, Karakatsanis, J. stated the following: [43] The Ontario amendments changed the test for

summary judgment from asking whether the case presents “a genuine issue for trial”to asking whether there is a “genuine issue requiring a trial”. The new rule, with its enhanced fact-finding powers, demonstrates that atrial is not the default procedure. … … [49] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on amotion for

summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2)allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a justresult. [50] These principles are interconnected and all speak to whether

summary judgment will provide a fair and just adjudication. When asummary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be

proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute. [51] Often, concerns about credibility or clarification of the evidence can be addressed by calling oral evidence on the motion itself.

However, there may be cases where, given the nature of the issues and the evidence required, the judge cannot make the necessary findings of fact, or apply the legal principles to reach a just and fair determination. [Emphasis in original.] [68] This decision is of significant importance to child protection

summary judgment proceedings and has been considered by appellate courts in Manitoba and Ontario. [69] In Dakota Ojibway Child and Family Services et al v. M.B.H. , 2019 MBCA 91 , leave to appeal to SCC refused, 38907 (19 March 2020), the central question facing the Court was “whether

summary judgment is appropriate in child protection proceedings and, in particular, where an agency is seeking a permanent order of guardianship” (para. 2). The Court determined it was: [4]

Summary judgment is appropriate in some, but not all, child protection proceedings, including proceedings for a permanent order of guardianship. A contextual analysis is required. The question is whether a

summary judgment motion is a fair and just method of adjudication in the circumstances of the particular case. [70] Manitoba’s

summary judgment rules were amended and came into force on January 1, 2018, and were further amended in relation to “family proceedings” including child protection proceedings, which came into force on February 1, 2019 ( M.B.H. , at para. 84 ). The amended rules are very similar to the Ontario

summary judgment rules that were considered in Hryniak . [71] It is also of note that the changes discussed in M.B.H. to the rule requires a judge to grant

summary judgment if he or she is satisfied that there is “no genuine issue requiring a trial”, whereas the former rule required a judge to do so where there was “no genuine issue for trial” ( M.B.H ., at para. 85 ). [72] This change is described as reflecting the culture shift encouraged in Hryniak , at paragraph 45 , which changes the nature of

summary judgment, from “a means to weed out unmeritorious claims to a significant alternative model of adjudication”. [73] The Newfoundland and Labrador new Supreme Court Family Rules were enacted in the same time frame, for similar purposes, and also used the language of “no genuine issue requiring a trial” (rule F28.06). [74] The Manitoba Court of Appeal in M.B.H . dismissed the appeal and concluded as follows: [153]

Summary judgment is available in Manitoba for child protection proceedings, including proceedings for a permanent order of guardianship. [154] The potential of the

summary judgment process to represent a fair and just method of adjudication in a particular case must be determined on the basis of the principles discussed in Hryniak , coupled with a recognition that, for the purpose of achieving its legislative agenda, the CFSA specifically contemplates “hearings” that are informal and

summary in nature. [155] W hile

summary judgment is available for child protection proceedings, it is not appropriate in all cases. The question is whether a

summary judgment motion is a fair and just method of adjudication in the circumstances of the particular case. To answer that question, the judge must decide whether the

summary judgment process will allow him or her to make the necessary findings of fact and to apply the law to the facts, and whether it is a proportional approach, that is, a more expeditious and less expensive means to achieve a just result than going to trial (see Hryniak at paras 4, 49-50 ). As noted in Hryniak , what is fair and just involves a contextual analysis and turns on the nature of the issues, the nature and strength of the evidence and what is the proportional procedure in each case (see para 59). [75] The Ontario Court of Appeal in Kawartha-Haliburton Children's Aid Society v. M.W ., 2019 ONCA 316 , explicitly endorsed the appropriateness of

summary judgments in child protection proceedings at paragraphs 62-80. [76] The Court summarized five factors to consider when proceeding by way of

summary judgment in a child protection matter: [80] To summarize and clarify the approach that the courts should take to

summary judgment in child protection proceedings, I set out the following: 1. Hryniak’s fairness principles for

summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child. 2. The burden of proof is on the party moving for

summary judgment. Although, r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial. 3. The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a

summary judgment motion that would be inadmissible at trial. 4. Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must

provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council. 5. The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children. [77] The Court, at paragraph 76, references the impact of the Hryniak decision that emphasizes that there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment. The Court goes on to confirm that there is a need to take a cautious approach to granting

summary judgment in child protection proceedings. [78] In L.M. v. Peel Children’s Aid Society , 2019 ONCA 841 , the Ontario Court of Appeal had an opportunity to comment on what may have been seen as different approaches in M.B.H. and Kawartha. The Court stated: [51] In my view, both provinces’ appellate courts agree that, as the Manitoba court also stated in that case, “[w]hile

summary judgment is available for child protection proceedings, it is not appropriate in all cases”: para. 155. Thus, in some child protection cases,

summary judgment can ensure a fair and just determination in a prompt and proportionate manner, while in other cases it cannot do so. Each case must be decided based on the issues and evidence presented. As noted in Hryniak , at para. 59 : “[w]hat is fair and just turns on the nature of the issues, the nature and strength of the evidence and what is the proportional procedure”. [79] Based on the decisions of this Court and other appellate courts, it can be concluded that the appropriateness of

summary judgment hearings in child protection matters should be determined and based on an analysis of the circumstances and the context of the matter before the Court. Other than the fairness and fundamental justice principles that have been set out in Kawartha and other decisions, there has been no specificity as to what those cautions would entail nor any jurisprudence that sets out circumstances where a

summary judgment hearing could not proceed in cases similar to the circumstances before the Judge in this matter. The necessity to hear oral evidence [80] In this case the parents say that it was unfair that they, the parents, were not able to give oral evidence. They did provide affidavit evidence, but at the hearing neither they, nor their counsel, made any request to augment their affidavits with oral evidence or submissions. There is no requirement for oral evidence at a

summary judgment hearing. Most hearings proceed without oral evidence. [81] At paragraphs 61-65 of Hryniak, the Court provided guidance on the use of oral evidence, a

summary of which follows: 1. The decision to allow oral evidence rests with the judge and not the lawyers. 2. A judge should only exercise this power when oral evidence can be obtained from a small number of witnesses and gathered in a manageable period of time; the presentation of oral evidence is likely to have a significant impact on whether the

summary judgment motion is granted; and any such issue is narrow and discrete. 3. A party seeking to lead oral evidence should be prepared to demonstrate why such evidence would assist the judge in weighing the evidence, assessing credibility, or drawing inferences and to provide a “will say” statement or other description of the proposed evidence so that the judge will have a basis for setting the scope of the oral evidence. [82] In the circumstances of this case there were no material facts in dispute. The parents had agreed that the children were in need of protective intervention.

No one disputed any facts in the affidavits of the parents that: they loved their children; they had taken many programs to improve their parenting skills over the years; and they felt that they could parent the children. They had the assistance of counsel in putting forward their position to the court. The only issue for the Judge to determine was the nature of the order that was in the best interests of the twins, either another short-term temporary order or a continuous custody order.

After three years in the care of the Manager, the parents wanted a further opportunity to have the children returned to their care. However, there was no suggestion that their oral evidence would be any different than their affidavit evidence. [83] The Judge did hear oral evidence in this matter. She heard from Ms. Hendry, the Daybreak home care worker called by the parents. She was examined and cross-examined by all counsel.

When counsel for the parents raised with the Judge whether there would be an opportunity to have continued access if a continuous custody order was granted, a social worker was called and examined and cross-examined by all counsel on the Manager’s plans for the children and continuing contact with the parents, before or after an adoption, if an adoption was being contemplated. Neither counsel nor the parents made any request to the Judge at the hearing to provide further evidence, oral or otherwise.

Section 7 of the Charter was not breached [84] In the circumstances of this

summary judgment hearing, the Judge correctly applied the principles of fairness and fundamental justice described in

section 7 Charter jurisprudence. Appropriate notice and disclosure, the right to a hearing before an impartial judge, the right to representation by counsel and the right to have a reasonable opportunity to respond to the case for removal of the child from parental care have been provided. The parents were successful in seeking a delay sufficient to have an independent parenting capacity assessment prepared for them by an experienced psychologist, which was considered by the Judge. [85] The Judge asked herself the correct questions and determined that there was no genuine issue requiring a trial. The Judge determined that this was an appropriate case for a

summary judgment hearing, after considering the issues involved and the evidence presented, including the position of the parents that the twins continued to be in need of protective intervention. She found that the record, augmented by the oral evidence of several witnesses, was sufficient to permit her to fully consider the application for continuous custody. [86] T.R. establishes that the scope of appellate review will require the application of the standard of correctness when considering the parents’ arguments that a

summary judgment hearing violated their

section 7 Charter rights (para. 18). I am satisfied that the Judge made no error in this regard. The parents have not established that the conduct of the

summary judgment hearing fell below the required

constitutional protection of procedural fairness and fundamental justice in the circumstances of this case. Use of

summary judgment in child protection cases [87] Given that child protection family law cases are legislatively required to be held in private and are often not reported, it is myview that it would be helpful to set out some principles for the appropriate use of

summary judgment in child protection matters. [88] The new Supreme Court Family Rules adopted in 2017 provided for

summary judgment hearings in the detailed provisions ofrule F28. The new

summary judgment rule is applied on a different basis than the previous rule (Rules of the Supreme Court, 1986, SNL1986, c. 42,

Schedule D, rule 56A.75 as it appeared on June 2010). A traditional trial is not to be seen as being the only method to ensurea fair and just outcome occurs in all circumstances. Where a judge is able to find the necessary facts, apply the law to those facts, and hasconfidence in the conclusions that follow, a

summary judgment order may be appropriate. [89] In Newfoundland and Labrador (Child and Youth Services) v. N.N., 2017 NLTD(F) 26, 2017 CarswellNfld. 268, at paragraph19, LeBlanc J. outlined factors which could be used to determine whether it would be appropriate to consider and decide a childprotection application using the new

summary judgment rule. These principles and considerations provide a useful road map forpractitioners, as well as judges, when considering the use of

summary judgment procedures. I endorse these principles which follow: 1) Any application for

summary judgment pursuant to Rule F28 must be considered bearing in mind the need for proportionality asregards the matter in ensuring a fair, timely, affordable and just determination of the claims of the parties. 2) Rule F28 utilizes a test of determining whether there is a genuine issue requiring a trial and this ultimately means that a trial of thematter is not to be presumed to be the most appropriate process to fairly determine a claim or claims.

A trial is not to be seen as thedefault procedure, particularly based upon the various new dispute resolution processes as set out in our present rules. 3) Where on an application pursuant to Rule F28 a judge is able to find the necessary facts in the matter, apply the law to those factsand resolve the matter in a just and fair manner, a full trial would not be seen to be proportionate, timely or cost effective. If theapplication does not permit a judge to find the necessary facts, apply the law to the facts and resolve the matter fairly, the

summaryjudgment process would not meet the requirements of proportionality set out in the Hyrniak case. 4) The evidence available on an application pursuant to Rule F28 need not be equivalent to that of a trial but must be such that the judgefeels he/she can be confident that the matter in dispute can be fairly resolved without a trial. 5) A record based upon the affidavits of the parties, particularly when supplemented by the new fact-finding tools contained in RuleF28.06(2), including the hearing of oral evidence if shown or found to be necessary under Rule F28.06(3), will often be sufficient indetermining issues in dispute in a fair and just manner.

The enhanced fact-finding powers as well as the hearing of oral evidence canprovide an equally appropriate and valid manner of fact-finding. 6) Utilizing the enhanced fact-finding powers and considering the interest of justice, what is fair and just will turn on the nature of theissues in dispute, the nature and strength of the evidence and what is the proportional procedure. [Emphasis in original.] ISSUE II: Did the Judge commit errors of fact or law by reversing the onus of proof, unduly limiting the options available underthe Act, and failing to consider material evidence? [90] The parents allege that the Judge’s decision was not an impartial independent assessment of their current circumstances but wascoloured by evidence demonstrating their previous experience parenting the three older children. [91] In J.B., Re (1998), (NL CA), 166 Nfld. & P.E.I.R. 1 (NFCA), leave to appeal to SCC refused, 26931 (7January 1999), this Court held that past parenting was a relevant factor for consideration of the future ability to parent a child, andconcluded that evidence of past parenting practices in relation to other children and family members is relevant to a determination of thefitness and ability of a person to parent a child who is alleged to be in need of protection and should not be excluded: [90] It is, therefore, a necessary incident of the child protection litigation system that past parenting practices, as they relate not only tothe child in question, but also other children and family members, can and should be examined and be used as a basis for concluding thata particular child is or is not in need of protection, where the issue at stake involves the custodian’s parenting ability as a ground for theclaim that the child is in need of protection.

One need only postulate the circumstance where parents have had a numberof children removed from their home as a result of bad parenting practices and are facing the birth of another child. Can it be said thatthe child protection authorities may not apprehend the child at birth on the basis of a demonstrated lack of parenting ability with respectto the other children but must wait to see if that child is abused or neglected, thereby exposing that child to risk of harm? To ask thequestion is surely to answer it.

Child protection legislation must be interpreted in a fair and liberal manner to carry out its fundamentalpurpose which is to ensure the protection of children. [92] This Court considered the matter again in Manager of Child, Youth and Family Services (Nfld. and Lab.) v.

L.F. et al., 2013NLCA 55, 340 Nfld. & P.E.I.R. 57, and upheld the decision of the trial judge at paragraph 22 that “the parenting history involvingthe children of J.F. clearly gives rise to a concern that there would be no stability for S.F. if such a custody or access order [to J.F.] wasgranted.” [93] Trial courts in this province and others often consider past parenting practices in appropriate cases and, while notdeterminative, this factor can be important in predicting and assessing future parenting behaviour.

This is particularly true when there is arelatively short time, such as in this matter, between the permanent custody order relating to the three older children in 2018 and the birthof the twins in 2019 and the continued acknowledgement by the parents that the twins remained in need of protective intervention at thetime of the decision in 2022.

[94] In other cases, parenting practices in the distant past may have less relevance if there is evidence demonstrating that rehabilitative efforts, by a parent or parents, have resulted in changes in parenting capacity and practices, for example, overcoming addictions or leaving a violent relationship. [95] The Judge made no material error in considering the past parenting behaviours, especially when coupled with the assessment of the parenting capacity assessors’ evidence that, despite intensive coaching and programming, there was no indication that the parents would be able to parent the twins any differently than the three older children.

Was the onus of proof reversed? [96] The parents submit that the onus of proof was wrongly reversed, requiring them to prove their circumstances had changed from when the three older children were removed in 2017 (followed by their consent to a continuous custody order in 2018) rather than requiring the Manager to prove that parental rights should be terminated. [97] The Judge accepted the admission of the parents through their counsel that the children remained in need of protective intervention and in making that finding noted that the parents did not lead any evidence to the contrary (Decision, at page 36).

It was not an error for the Judge to rely on an admission of the parents to narrow the issues. [98] The Judge then went on to consider the appropriate order for temporary or continuous custody. Counsel for the Manager submitted evidence and argued that the evidence was sufficient to make the order for continuous custody in the circumstances before the Judge. The parents, through their counsel, provided evidence and made the argument that a three-month temporary order would be appropriate in the circumstances.

It is not a reversal of the onus for the parents to put forward or demonstrate that their circumstances have changed since the twins were removed from their care or that they would be able to change sufficiently to parent the twins safely within the period of the temporary order, if granted. Did the Judge err in unduly limiting the options available under the legislation? [99] The parents submit that, given the age of the children, the legislation permitted a further three-month temporary order after the first six-month temporary order. Section 33(1) of the Act states as follows: 33.

(1) Where a judge makes an order for temporary custody under paragraph 32(2) (

b) or (c), the term of the order shall not exceed (a) 6 months for a first order; (b) 3 months for a second order where the child who is the subject of the order is under 6 years of age when that order is made; and (c) 6 months for a second order where the child who is the subject of the order is 6 years of age or older when that order is made, with a maximum of 2 orders in total during the child's life. [100]

Section 9 of the Act states that the overriding and paramount consideration in any decision under the legislation is the best interests of the child. All other factors must be considered in light of this guiding principle. There is a limited period of time in which a child should remain under the care of the Manager. The Act provides for a maximum of two temporary orders in total during the child's lifetime. Section 33(2) provides that in exceptional circumstances, a third order may be granted but cannot exceed three months if the child is under the age of six.

The Act provides that an exceptional order is only available where the parents have demonstrated that they may reasonably be expected to resume the care of the child within a reasonable period of time. [101] The philosophy of the Act is to provide a limited period of time prior to a final decision being made, and permanency planning commencing with respect to a child’s future care.

In considering the best interests of a child, the importance of stability and continuity in the child's care, as well as the effect upon the child of a delay in the disposition of a judicial or other proceeding, are considered relevant factors. These children have been in the care of the Manager since birth and are now more than four years old. [102] The general principles outlined in the Act provide that every child is entitled to be assured of personal safety, health and well- being and that the family is the basic unit of society responsible for the safety, health and well-being of the child.

It is important that parents are provided the opportunity to acquire the skills and receive the services necessary to be able to parent their children. However, the legislature has determined that there is a limited period of time during which parental rehabilitation may take place.

Balancing the needs of parents for time to overcome obstacles and develop the necessary skills to parent their children with the needs of the children for a safe, healthy and stable home is important in assessing the children’s best interests. [103] The Act provides that where there is a conflict between the child’s safety, health and well-being and the importance of the family as the preferred environment for the care of the child, the child’s safety, health, and well-being shall prevail ( Act , at s. 9(3) ). [104] The Judge determined following a review of the professional assessments and evidence regarding the extensive opportunity provided for programming and supervised access, that despite great effort, neither of the parents, together or separately, had the ability to care for the children at the present time.

She noted that none of the professional assessments were able to recommend any further programs or one-on-one teaching that would enable the parents to be in a position to safely parent the children. [105] The Judge also determined that there was no evidence to indicate that three to six months would be sufficient for the parents to resume care for the twins.

The Judge determined that “a further temporary order would have the result of only delaying the inevitable and prolong the twins’ placement for adoption, thereby depriving them of the stability to grow and thrive” (Decision, at page 41). [106] The parents submit that the Manager had the ability to grant a further three-month temporary order that they were seeking. It is true that there was room for a second temporary order but the jurisprudence does not require all temporary orders to be exhausted before a continuous custody order is granted.

[107] This Court determined in K.P. v. Newfoundland and Labrador (Child and Youth Services) , 2018 NLCA 35 , 3 C.A.N.L.R. 40, that a court was not required to exhaust all temporary orders prior to making a continuous custody order: [8] Finally, K.P. submitted that the Judge should have made a further temporary custody order, rather than a continuous custody order. I begin by noting that the Act does not require the Court to exhaust every temporary order that may be legislatively permitted before making a continuous custody order.

The appropriate order will depend on an assessment of the best interests of the child. In this case, the child was removed by warrant from K.P.’s care when he was four years old. In the three years following his removal, many attempts were made and services provided to K.P. to improve her parenting ability, but no meaningful progress was made. The child is now nine years old and in a stable living situation. Current information confirms K.P.’s situation has not changed.

The judge’s conclusion that a continuous custody order was in the child’s best interests, and her determination regarding the possibility of reunification within the foreseeable future based on K.P.’s inability to parent or improve her ability to parent, were well supported by the evidence. [108] This Court also commented on the impact of delay by making a further temporary order. In Director of Child, Youth and Family Services (Nfld. & Lab.) v.

L.T. et al. , 2011 NLCA 1 , 304 Nfld. and P.E.I.R. 134 , Green C.J.N.L. stated at paragraph 28, “[w]hile acknowledging that the consequences of a continuous custody order are serious for the parents, [counsel for the Director] submits that the interests of the children trump those of the parents in these circumstances, where there does not appear to be any merit in the appeal”. Green C.J.N.L. continued: [29] I agree with counsel for the Director.

It is worth repeating what the trial judge observed about the delay that would result if a temporary, instead of a continuous, custody order were made and a further trial had to be held to reconsider continuous custody at a later date: “[137] The future of these children and their opportunity for a permanent home where the caregivers will have the skills necessary to meet their special needs and minimize negative impacts of FASD slips away a little bit every day.

The social workers advise that the older the children are the more difficult it is to find a permanent home.” [109] It is not necessary or always desirable to grant the full series of temporary orders prior to consideration of continuous custody. As noted above there may be cases where continuous custody is an appropriate first order. [110] A review of the record discloses no material error and demonstrates that there was evidentiary support for the Judge’s decision to grant the Manager’s application.

The Judge’s finding that the continuous custody order was in the best interests of the twins, after considering the appropriate factors is supported by the evidence. The Judge also considered the parents’ request that they continue to have contact with the twins and that the Manager supported continued parental contact. The Judge ordered that access should occur and will be as determined by the Manager to be in the best interests of the children. Conduct of the proceedings and evidence [111]

Section 51 describes the conduct of proceeding under the Act as follows: 51.

(1) A proceeding under this Act (

a) is civil in nature; (

b) may be as informal as a judge may allow; and (

c) shall be held in private, unless otherwise ordered by the judge.

(2) In a proceeding under this Act , a judge may admit and act upon (

a) the evidence, including hearsay, that the judge considers relevant and reliable in the circumstances; (

b) an oral statement which has been video-taped; (

c) a written statement; (

d) the notes and other documentation made in a departmental file in relation to a child, a youth, his or her family or placement; (

e) a report the judge considers relevant, including a transcript, exhibit or finding in an earlier civil or criminal proceeding; and (

f) evidence taken and a declaration made at a prior proceeding under this Act or under a similar statute. [112] On the conduct of proceedings under the Act , this Court has described the overriding principle consistently to be, “not only that the Act be administered in accordance with the principle that “the overriding and paramount consideration in any decision made under this Act shall be the best interests of the child”, it also requires the Act “shall be interpreted” in accordance with that principle” ( Director of Child, Youth and Family Services, Health and Community Services Board (St. John'

s) v. J.F. et al. , 2006 NLCA 35 , 259 Nfld. & P.E.I.R. 296, at para. 20 ; and Act , at s. 9 ). [113] This Court, also in J.F ., determined that the effect of the present

section 51 of the Act (previously Child, Youth and Family Services Act , SNL 1998, c. C-2.1, at s. 50 as it appeared on April 2011) was that child protection matters were not to proceed on the same basis as other civil matters, and that they differed in fundamental ways: [21] I would also conclude, from the whole of

section 50, that judicial proceedings under the Act are not to proceed on the basis of the same rules and practice regime as conventional adversarial court proceedings, recognizing always the necessity to ensure procedural

fairness. They are to be held in private and are to be as informal as a judge may allow . The

section as a whole gives the judge wide discretion to accept evidence not tested by the normal strictures of adversarial proceedings. Presumably this is to assist in ensuring that the best interests of the child receives paramount consideration, and the objects of the Act are thereby achieved. [Emphasis in original.] [114] The Judge thoroughly considered all of the material evidence in this matter.

In addition to hearing oral testimony and reviewing affidavit evidence, the Judge admitted and referred to social workers’ notes and other documentation in the departmental family file as well as parenting capacity reports submitted by the parties, without objection from any of the parties. This is permitted by section 51(2) and the Judge exercised her discretion and made no error in doing so. It should also be noted that counsel on this appeal did not raise this as a distinct ground of appeal. The Judge thoroughly considered all of the material evidence.

DISPOSITION [115] For the reasons stated, I would dismiss the appeal. D.E. Fry C.J.N.L. I concur: _____________________________ F.P. O’Brien J.A. I concur: _____________________________ D.M. Boone J.A