C. F. PETITIONER - v. -, 2015 SKQB 264

REDACTED VERSION QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2015 SKQB 264 Date: 201 5 09 03 Docket: FLD 433 of 2014 Judicial Centre: Regina, Family Law Division BETWEEN: C. F. PETITIONER - and - THE GOVERNMENT OF SASKATCHEWAN, THE MINISTER OF SOCIAL SERVICES FOR THE PROVINCE OF SASKATCHEWAN RESPONDENT Counsel: Joanne C. Moser for the petitioner Karen L. Hindle for the Minister of Social Services Sheri L. Woods for the children B and A JUDGMENT ELSON J.

SEPTEMBER 3, 2015 Introduction [ 1 ] In this application, a former foster parent of two children seeks an interim designation as a person of sufficient interest in respect of the two children, as well as an order of interim custody. The Ministry of Social Services [MSS] vigorously opposes the application. Although MSS argues that the orders sought by the petitioner would not be in the best interests of the children, its major argument is that the fundamental quality of foster care is incompatible with the substance and character of the orders sought by the petitioner.

MSS contends that, irrespective of the bond that may have been created between the petitioner and the children, the petitioner must be considered, as a matter of law, to be a stranger to these children. As such, MSS contends that any of the requested orders, even on an interim basis, would set an unfortunate and unhappy precedent. [ 2 ] I must admit that the position taken by MSS has given me considerable pause. Nonetheless, having reviewed the various authorities on the subject, I am satisfied that, for the reasons which follow, the application should be granted.

Facts [ 3 ] The children who are the subjects of this application are B.L., born October 4, 2002, and A.P., born December 20, 2007. For ease of reference, I shall refer to each child by the initial of the first names, “B” and “A”.

[ 4 ] By an order of this Court, dated November 25, 2005, B and her three older siblings were found to be children in need of protection, pursuant to s. 11 (

b) of The Child and Family Services Act , SS 1989-90, c C-7.2 [ CFSA ]. That same order directed that the children be placed in the custody of the Minister of Social Services until the age of 18, pursuant to s. 37(3) of the CFSA . This is generally known as a long-term order or a long-term wardship. Although the particulars of all the proceedings under the CFSA were not disclosed, it is evident that B was apprehended by MSS in late 2004 or early 2005. On January 21, 2005, B was placed in the foster home of the petitioner and her husband.

She remained in the foster home, with the financial assistance and support of MSS, until October 9, 2014. At that time, she had just observed her 12 th birthday [ 5 ] Meanwhile, A was placed in the home of the petitioner and her husband on December 27, 2007, shortly after his birth. Pursuant to an order of this Court, dated September 8, 2009, he was also found to be a child in need of protection. As in the case of B, A was made a long-term ward and placed in the care of MSS until the age of 18, pursuant to s. 37(3) of the CFSA .

A remained in the foster care of the petitioner until October 9, 2014. [ 6 ] The petitioner has been a foster parent for a number of years. She first became a foster parent in 1972. When she and her husband were married in 1988, they carried on acting as foster parents as well as raising their own three children who are now adults and live elsewhere. It is agreed between the parties that the foster home had been closed on certain occasions in 1977, 1979, 1981, 1987 and 2003. The reasons for those closures have been set out in the affidavit material and I do not find them to be material to the matter at hand.

The foster home was last opened and approved by MSS in 2004. Thereafter, the petitioner and her husband remained as foster parents until October 9, 2014, when MSS closed the home. [ 7 ] Immediately prior to the closure, there were other persons living in the home as a consequence of the foster care arrangements. Although the petitioner describes all of these persons as “children”, she acknowledges that two of them are now adults. Both of them had earlier been placed in the home for the purposes of foster care.

One of the adult children has two children of her own and the petitioner has been designated a person of sufficient interest to both of them. The other adult child had earlier been adopted by the petitioner and her husband and remains living in the home. In 2005, two other children, who are biological siblings to A, were placed in the petitioner’s residence. The petitioner and her husband were designated as persons of sufficient interest with respect to both of them.

The events which led to this designation were not disclosed in evidence. [ 8 ] The circumstances leading to the closure of the petitioner’s foster home can be briefly described. They are set out in the affidavit of the resource worker with MSS that had been assigned to the home. According to the worker, there had been two issues raised with the petitioner and her husband between 2004 and 2011. The first issue arose in the summer of 2007 when concerns were expressed about the poor condition of the carpeting in the home.

Although the foster parents had received a quote to have the carpets replaced with laminate, this was never done. Apparently, there was a dispute between the foster parents and MSS about the percentage of cost that MSS would cover. The second issue arose in 2011, when MSS officials expressed concerns about excessive clutter in the foster home. There was a recommendation that the foster parents utilize the support of in-home support services to help maintain their home.

Despite these concerns, it is noteworthy that the 2011 review, prepared by the official who expressed this concern, contained a recommendation for ongoing approval. The official went on to say the following at p. 7: C and D are recognized by this writer as being an extremely valuable resource for the Ministry of Social Services. This couple has a wealth of knowledge and skills that they have gained throughout their careers as well as fostering experience that greatly benefit the children placed in their care.

In the excess of thirty years of fostering experience of this family, there have been minimal concerns raised and the majority of any such concerns were unsubstantiated. Those concerns that were valid were easily addressed through discussions with the couple or through the implementation of extra support to provide assistance. … [ 9 ] The concerns that directly related to the closure of the foster home arose in the spring of 2013, after MSS had been advised, for the third time, that the petitioner was permitting the children to play in the street unsupervised.

This report led to the attendance of MSS officials at the petitioner’s home for a meeting. During that meeting, and during subsequent attendances, the officials made observations of the home and expressed concerns about its cleanliness and the state of repair. One particular concern, relating to the presence of black mould, led to an investigation by an environmental assessment company. That company’s report, dated October 23, 2013, confirmed the presence of mould growth as well as the presence of asbestos related materials.

Nine specific recommendations were made. [ 10 ] The concerns identified in 2013 led to formal review in that year, followed by a further review in 2014. The review in 2013 recommended ongoing approval but suggested there should be no further placements in the home. The report went on to say that “…Should further reports of the home’s cleanliness or the lack of supervision be brought forward, these placements may need to be reconsidered.” (p.5). The review in 2014 was much less favourable. The 15 page report generated from that review recommended closure of the home.

At the same time, it acknowledged that the children for whom the petitioner and her husband had been found to have sufficient interest, would remain in the home. In this respect, MSS would have no authority to remove these children unless they were found to be in need of protection.

It was acknowledged that the concerns identified about the petitioner’s home did not rise to that level. [ 11 ] While I include a general description of the concerns expressed by MSS about the petitioner’s foster home, I must also acknowledge that the petitioner vigorously disputes most of it, particularly the assertion that the children have gone unsupervised.

She also contends that MSS has not been as helpful as it should have been in assisting the family to bring the home up to the expected standard. [ 12 ] It should also be noted that, aside from the petitioner and her husband, the court received five affidavits in support of the application. The deponents of these affidavits include a teacher at B’s school, the mother of one of B’s dance classmates (who became a friend of the petitioner), a neighbour of the petitioner (who is an early childhood educator and the mother of another of B’s friends) and a second neighbour of the petitioner.

These affidavits contain comments which are very favourable to the petitioner and her husband. Although most of the comments are expressed as matters of opinion, there are generalized facts contained within them to support the opinions expressed. They give the impression of a very strong bond between all of the children in the home and the

petitioner. In particular, I note that the affidavit disclosed matters of fact which tended to illustrate how deeply involved the petitioner has been in the lives of the children who lived in her home. [ 13 ] Finally, the court also received the affidavit of A’s biological mother. She is also supportive of the petitioner’s application and expresses concern about the foster home in which her son is currently living. [ 14 ] It is apparent from the affidavit evidence received that there is a certain amount of conflicting evidence.

These conflicts cannot be resolved in whole or in part on the basis of affidavit evidence. They must be left to be considered at trial. Issues [ 15 ] There are two issues before the court. (

a) Whether or not the applicant can be declared a person of sufficient interest with respect to the children, B and A. (

b) Should there be an order of interim custody between now and the date of trial? Legislation [ 16 ] This application engages the various provisions of the CFSA and The Children’s Law Act, 1997 , SS 1997, c C-8.2 [ CLA ]. The relevant provisions in this respect are as follows: The Child and Family Services Act : 2

(1) In this Act: ... (j) ”foster care services” means the provision of residential services to a child by and in the home of a person who is: (

i) approved by a director to care for the child; and (ii) not the child’s parent or a person with whom the child has been placed for adoption. ... 3 The purpose of this Act is to promote the well-being of children in need of protection by offering, wherever appropriate, services that are designed to maintain, support and preserve the family in the least disruptive manner. 4 Where a person or court is required by any provision of this Act other than subsection 49(2) to determine the best interests of a child, the person or court shall take into account: (

a) the quality of the relationships that the child has with any person who may have a close connection with the child; (

b) the child’s physical, mental and emotional level of development; (

c) the child’s emotional, cultural, physical, psychological and spiritual needs; (

d) the home environment proposed to be provided for the child; (

e) the plans for the care of the child of the person to whom it is proposed that the custody of the child be entrusted; (

f) where practicable, the child’s wishes, having regard to the age and level of the child’s development; (

g) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity; and (

h) the effect on the child of a delay in making a decision. ... 11 A child is in need of protection where: (

a) as a result of action or omission by the child’s parent: (

i) the child has suffered or is likely to suffer physical harm; (ii) the child has suffered or is likely to suffer a serious impairment of mental or emotional functioning; (iii) the child has been or is likely to be exposed to harmful interaction for a sexual purpose, including involvement in prostitution and including conduct that may amount to an offence within the meaning of the Criminal Cod e; (iv) medical, surgical or other recognized remedial care or treatment that is considered essential by a duly qualified medical practitioner has not been or is not likely to be provided to the child; (

v) the child’s development is likely to be seriously impaired by failure to remedy a mental, emotional or developmental condition; or

(vi) the child has been exposed to domestic violence or severe domestic disharmony that is likely to result in physical or emotional harm to the child; (

b) there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur; … ... 3 7(1) Subject to subsection (2), if the court determines that a child is in need of protection, the court shall make an order that the child: (

a) remain with, be returned to or be placed in the custody of his or her parent; (

b) be placed in the custody of a person having a sufficient interest in the child; or (

c) remain in or be placed in the custody of the minister for a temporary period not exceeding six months.

(2) If, in the opinion of the court, none of the orders described in subsection (1) is appropriate, the court shall make an order permanently committing the child to the minister.

(3) Notwithstanding subsections (1) and (2), the court may, if it is of the view that: (

a) a child is in need of protection; and (

b) by reason of the age of the child or other circumstances, it is unlikely that an adoption plan would be made if the child were permanently committed to the minister; order that the child be placed in the custody of the minister until the child attains the age of 18 years. ...

(5) In making an order pursuant to subsection (1) or (3), the court may: ... (

b) include in the order a provision respecting access to the child. ... 39

(1) Subject to subsection (2), the court may, on the application of any party to the original protection hearing, vary or terminate an order made pursuant to

section 37 where: (

a) there has been a change in circumstances; and (

b) it is in the best interests of the child to vary or terminate the order. (2) Subsection (1) does not apply with respect to a child who has been: (

a) permanently committed to the minister; and (

b) adopted or placed in a home for the purpose of adoption. ... 52

(2) Subject to subsection (3), the minister shall: (

a) have all the rights and responsibilities of a parent; and (

b) be the guardian of the person; of a child who is committed permanently to the minister pursuant to subsection 37(2) or

section 46. ... 54

(1) Where foster care services are provided pursuant to this Act, the director shall enter into a written agreement with the person providing those services setting out the duties and responsibilities of each party with respect to the care provided.

(2) None of the rights or powers vested in the minister pursuant to this Act are impaired by any terms or conditions of an agreement made pursuant to subsection (1).

(3) Every agreement made pursuant to subsection (1) is deemed to contain a provision reserving to the director the right to remove the child from the person providing foster care where, in the opinion of the director, the welfare of the child requires that removal. ... 66

(1) Where:

(

a) the time for appealing: (

i) an order of committal pursuant to this or any Family Services Act or Child Welfare Act; or (ii) an order dispensing with a parent’s signature pursuant to

section 49; has expired; and (

b) either: (

i) an order of adoption has been made with respect to the child; or (ii) the child has been placed in a home for the purpose of adoption pursuant to The Adoption Act or The Family Services Ac t; the order is final and conclusive and the validity of the order shall not be challenged in any court.

(2) While an order of committal or a voluntary committal is in force and the child has been placed for adoption: (

a) no application by a parent shall be allowed; and (

b) no order, decision or judgment shall be made; granting to a parent a right of custody, guardianship or maintenance of, or right of access to, the child pursuant to this Act, The Children’s Law Act or any other Act or law.

(3) While an order of committal or a voluntary committal is in force and the child has been placed for adoption, no application shall be made to the court for a declaration of parentage pursuant to

Part VI of The Children’s Law Act. ... 68

(1) Where a child has been committed to the minister pursuant to subsection 37(2) or

section 46, or has been placed in the custody of the minister pursuant to clause 37(1)(

c) or subsection 37(3) , the committal or order expires when: (

a) the child attains 18 years of age; (

b) the child is adopted; (

c) the child marries; (

d) the committal of the child is terminated by an order of the court; or (

e) the committal is otherwise terminated pursuant to this Act; whichever occurs first. The Children’s Law Act, 1997 : 6

(1) Notwithstanding sections 3 to 5, on the application of a parent or other person having, in the opinion of the court, a sufficient interest, the court may, by order: (

a) grant custody of or access to a child to one or more persons; (

b) determine any aspect of the incidents of the right to custody or access; and (

c) make any additional order that the court considers necessary and proper in the circumstances. ... 8 In making, varying or rescinding an order for custody of a child, the court shall: (

a) have regard only for the best interests of the child and for that purpose shall take into account: (

i) the quality of the relationship that the child has with the person who is seeking custody and any other person who may have a close connection with the child; (ii) the personality, character and emotional needs of the child; (iii) the physical, psychological, social and economic needs of the child; (iv) the capacity of the person who is seeking custody to act as legal custodian of the child; (

v) the home environment proposed to be provided for the child; (vi) the plans that the person who is seeking custody has for the future of the child; and (vii) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child.

... 12

(1) Where a child is the subject of proceedings pursuant to

Part III of The Child and Family Services Act and an application for custody of or access to the child is brought pursuant to this Act: (

a) unless the court otherwise orders, the proceedings pursuant to The Child and Family Services Act are stayed pending the decision of the court with respect to custody or access; (

b) the applicant for custody or access shall serve the director with notice of the application for custody or access; and (

c) the minister responsible for the administration of that Act is not to be joined as a party to the proceedings for custody or access unless that minister applies to be joined as a party.

(2) Where the minister responsible for the administration of The Child and Family Services Act is a party to the proceedings for custody or access, the court may: (

a) consolidate the actions in the court and make an order pursuant to

section 37 of The Child and Family Services Act ; or (

b) refer the proceedings pursuant to The Child and Family Services Act back to the Provincial Court to be concluded after the custody or access application has been decided. Analysis [ 17 ]

Section 6 of the CLA stipulates that in order for a person, other than a parent of the child, to have standing to seek an order in respect of that child, the person must be found to have “a sufficient interest”. The parties agree that the Court of Appeal decision in G.E.S. v D.L.C ., 2006 SKCA 79 , 285 Sask R 19 [ G.E.S. ] describes the nature of the court’s inquiry in this respect. It is an inquiry with two distinct stages, the first being a threshold requirement, as to the “sufficient interest”, and the second a consideration of the application’s merits.

According to G.E.S. , the inquiry into the threshold requirement does not focus on the best interests of the child involved. Rather, the focus is on the nature of the relationship between the child and the person in question. Speaking for the court, Richards J.A. (as he then was) described the analysis as follows, at paras. 46 and 47: 46 That said, I do not agree with the trial judge's view of the approach which should be used to determine whether a person has "a sufficient interest". In this regard, it is important to recognize that the Act contemplates two separate stages of analysis.

First, s. 6 sets out a threshold requirement which must be satisfied before an access order can be made. It requires that the applicant be either a "parent" or "other person having, in the opinion of the court, a sufficient interest." Second, s. 9 provides that, if the threshold requirement is met, the merits of making an order are to be considered by reference to the best interests of the child.

In his general discussion about the operation of the Act, the trial judge blurred these two distinct steps by centering on the best interests of the child when considering the threshold requirement of sufficient interest. 47 The proper focus of an inquiry in relation to the "sufficient interest" question, in my view, is the nature of the relationship between the applicant and the child. The question of the child's best interests does not enter the analysis at that point.

In determining whether a non-family applicant is a person with a sufficient interest, the court should consider a variety of factors including, but not necessarily limited to: (

a) the extent or degree of the applicant's involvement in the child's life, (

b) the duration of that involvement, (

c) the level of intimacy and the quality of the relationship between the applicant and the child, (

d) how the relationship between the applicant and the child was represented to the world, and (

e) whether the applicant provided financially for the child. Further, at least in relation to situations such as the one at issue in this appeal where there is no traditional family or blood relationship between the applicant and the child, it is necessary to consider whether the applicant can show a settled commitment to the child and an intention to be a continuing and meaningful presence in the life of the child.

Overall, in the kinds of circumstances involved here, s. 6 generally should be applied to screen out applicants who do not have both a significant relationship with the child and a demonstrated and settled ongoing commitment to the child. [ 18 ] The analysis in G.E.S. has been considered by this Court in four reported cases where foster parents or non-relatives sought designation as persons of sufficient interest.

They are L.P. v S.P. , 2006 SKQB 478 , 287 Sask R 228 [ L.P. ] ; Schindel v Stone , 2008 SKQB 399 , 323 Sask R 305 [ Schindel ] ; Bentley v Bueckert, 2010 SKQB 472 , 364 Sask R 309 [ Bentley ] and S.C. v H.G. , 2012 SKQB 349 , 403 Sask R 274 [ S.C. ] . [ 19 ] In L.P. , a child of First Nations’ ancestry had been apprehended three days after birth and placed in the care of foster parents, who were not members of a First Nations’ community. There were two orders that the child was in need of protection and would remain in the care of the then Minister of Community Resources for consecutive six-month periods.

During the child’s time in foster care, a bond had developed with members of the foster parents’ family. As a consequence, the foster parents sought the Minister’s support for a person of sufficient interest designation under s. 23 of the CFSA . Initially, support was indicated. The Minister’s position changed, however, when the child’s biological mother died and her second cousin and his wife interceded with a desire to care for the child. The Minister then supported the child’s relatives.

This prompted the foster parents to issue a petition under the CLA which included a request for sufficient interest designation under either s. 23 of the CFSA or s. 6 of the CLA . The Minister then brought an application for a number of interlocutory orders, including an order that the child’s relatives be designated as persons of sufficient interest. It was the Minister’s argument that, because the relatives were extended family members, they would be better able to expose the child to her cultural heritage and traditions.

Meanwhile, the foster parents countered with their own similar application, basing their argument on the history with the child. [ 20 ] Sandomirsky J. declined to find either of the parties as persons of sufficient interest. After referencing the analysis in G.E.S. , he went on to conclude that, on the facts of the case before him, the two-stage inquiry could only be conducted after a trial of the issue. It is noteworthy that Sandomirsky J. went on to leave the care of the child with the foster parents, subject to specified interim access with the relatives.

In making the interim order, it was specifically noted that the Minister’s independent powers were to be curtailed and subject to the court’s authority in determining parenting.

[ 21 ] In Schindel , which MSS relies upon in support of its submission, the child in question was the subject of a permanent order made by the Provincial Court under s. 37(2) of the CFSA . The child’s natural father successfully appealed the decision to this Court, and the matter eventually came before the Saskatchewan Court of Appeal on an application for leave. Meanwhile, the foster parents with whom the child had been placed brought a petition under the CLA , and sought a s. 6 designation as well as interim custody. [ 22 ] The application was denied.

In applying the analysis drawn from G.E.S ., Smith J. cited the definition of “foster care services” in s. 2 of the CFSA and the legal nature of the relationship between MSS and foster parents, as set out in s. 54 of the CFSA . From this point, he went on to say the following at paras. 27-30: 27 Foster care is designed to provide stable residential environment for children who have been found to be in need of protection under The Child and Family Services Act .

The goal of foster care is to provide a child with a safe and nurturing family environment pending determination of a proceeding brought by MSS under the statute. 28 Proceedings under The Child and Family Services Act come to an end in the following ways: (

i) MSS withdraws its application and the child is returned to the parent(s); (ii) the child is placed with the parent under s. 37(1)(

a) with conditions as to supervision by MSS over a specified period of time; (iii) the child is placed with a person of sufficient interest (under s. 23 of the CLA ) for a specified or indefinite period of time; (iv) the child is placed in the permanent care of MSS under s. 37(2) with the child typically being placed on an adoption list; (

v) if none of the above are available, the child is placed as a permanent ward of the Minister under s. 37(3) until he or she is 18 years of age; or (vi) the application by MSS is dismissed and the child is returned to the parents. 29 While foster parents may not be agents of MSS under a strict legal definition of "agency", they are, however, representatives and contractors of MSS in relation to the child and its parents.

The application by the petitioners for designation under s. 6 of the Act must be examined with sensitivity to their provenance to the child. 30 While I accept that Keano has become a central presence in the petitioners' lives and that they have constituted his primary family for virtually all of his life, those facts, in and of themselves, do not meet the test of s. 6. [ 23 ] In addition to the foregoing comments, it is noteworthy that Smith J. was careful to say that his comments on the facts of the case should not be seen as a “general rule”.

In this respect, he recognized, in para. 33, that: “In other cases, with other facts, foster parents may be entitled to the designation under s. 6.” [ 24 ] The Bentley decision did not involve an application by foster parents. Rather, the petitioners were a couple who were paid to look after the child while the child’s legal custodian was at work. This arrangement carried on for over four years and the petitioners developed a significant bond with the child. The legal custodian of the child was her great-grandmother to whom custody had been given by the biological mother.

The petitioners sought a s. 6 designation as well as custody or, in the alternative, access to the child. [ 25 ] Relying in large measure on the decision in Schindel , the court denied the application. In coming to this decision, Dufour J. looked to the nature of the relationship between the legal custodian and the petitioners, finding that none of the great- grandmother’s custodial authority had been delegated to the petitioners. Whatever authority they exercised resulted solely from the fact that they had usurped the custodian’s authority.

From this point, Dufour J. went on to characterize the threshold requirement as follows, at para. 42: 42 The threshold test - whether the applicants are persons of sufficient interest - is a screening mechanism that weeds out those who ought not to be allowed to vie for custody or access. It weeds out interlopers, meddlers and well-intentioned but misguided non-parents who ought not to be recognized at law as persons who should be heard by the Court as to that which is in a child's best interests. The bar cannot be set so low as to include the petitioners.

Often, as here, a contest results with the non-parents pitting their care-giving abilities against those of the custodial parent or legal custodian. The legal custodian has to respond. Rose did, defending at length why she was raising Shaunna as she was - but she should not have had to. To suggest that the petitioners should be able to call Rose to account would not, to again borrow Justice Smith's words in Schindel , "be consonant with any reasonable observer's notion of justice." [ 26 ] S.C. is a decision of this Court, on appeal from the Provincial Court.

In that case, MSS apprehended a child and placed the child in the care of foster parents when the child was eight days old. The child remained in the care of the foster parents for the next two years and four months. At that time, MSS removed the child from foster care and placed her in the care of her paternal grandmother. In the course of the child protection proceedings, the foster parents sought designation as persons of sufficient interest pursuant to ss. 23(1) (

c) of the CFSA . In an unreported decision, the judge of the Provincial Court granted the request. Both MSS and the child’s grandmother appealed the decision to this Court. In doing so, it was argued that the judge below had failed to apply the principles and criteria set out in G.E.S. [ 27 ] The appeal was dismissed. In her reasons, Dawson J. concluded that ss. 23(1) (

c) conferred discretionary power on the court to make the designation. With this in mind, she concluded that there was no evidence that the trial judge had abused his discretion or that there was a misapprehension of principle or fact. [ 28 ] There is another matter about S.C. that is particularly noteworthy. In considering the standard of review to be applied in the appeal before her, Dawson J. specifically referred to the Court of Appeal decision in Ochapowace Indian Band v Saskatchewan (Department of Community Resources) , 2008 SKCA 48 , 310 Sask R 130 .

As I read Ochapowace , particularly para 29, there is an implicit recognition that the criteria identified in G.E.S. , for determinations under s. 6 of the CLA , also applies to determinations under ss.

23(1) (

c) of the CFSA . [ 29 ] The essence of the argument against the petitioner’s application is that a designation of a foster parent as a person of sufficient interest would run contrary to the role foster parents are required to assume under the relevant provisions of the CFSA . As recognized by those provisions, MSS argues that a foster parent’s role is not only to care for children in need of protection but also to assist in restoring them to the care of their parents.

To use the words of counsel, “The essence of being foster parents is that they must be willing to give the children back.” In this respect, MSS asserts that the petitioner is acting contrary to this essential feature. [ 30 ] Taken to its logical conclusion, the position of MSS disregards the discretionary nature of the designation sought by the petitioner.

While I accept that the court’s decision must be based on a principled exercise of discretion, as per the analysis in G.E.S. , I also agree with Smith J. when he said there is no “general rule” forbidding foster parents from s. 6 designations. [ 31 ] In the present case, the petitioner has presented considerable evidence in support of her position. I am satisfied that, at the very least, the evidence is sufficient to justify an interim order that the petitioner be designated as a person of sufficient interest pursuant to s. 6 of the CLA .

She has been the children’s primary and central caregiver – for most of B’s life and for all of A’s life. The petitioner’s evidence, along with the additional affidavits filed in support, demonstrate that the petitioner does not fall within the group of “interlopers, meddlers and well-intentioned but misguided non-parents” who should not be heard in matters that pertain to the children’s best interests. In coming to this conclusion, I have taken full account as to how the petitioner’s relationship with these children began.

On the circumstances of this case, I cannot accept that the petitioner’s status as a foster parent disqualifies her from a s. 6 designation. [ 32 ] As for the matter of interim custody, this is a question which clearly does engage a consideration of the children’s best interests. MSS argues that, given the upheaval that has occurred in these children’s lives, it would be confusing to them to be placed back with the petitioner in the form of an interim custody order. The first problem with this argument is that it ignores the fact that MSS was responsible for this upheaval in the first place.

The second problem is that there is no real and persuasive evidence before me to support the conclusion that a change in arrangements would be contrary to the children’s best interests. Indeed, given the support of A’s mother for the petitioner’s application, as well as the submissions of counsel for the children, I am satisfied that there is considerable evidence to support the petitioner’s application in this respect. [ 33 ] Having said the foregoing, I must acknowledge that the issues which prompted MSS to close the petitioner’s foster home are concerning.

Some very minor solace can be taken in the fact that the problems identified by MSS were not significant enough to warrant removal of the children for whom the petitioner was already a person of sufficient interest. It must further be acknowledged that much of the evidence presented about the concerns in the home is conflicting. [ 34 ] Finally, it must be remembered that the orders for long-term wardship remain in place such that MSS retains its custodial responsibility for these children, and that it will continue to do so at least until the date of trial. As such, there will be a form of shared custody.

It necessarily follows that, during the period of interim custody, MSS is entitled to information from the petitioner with respect to the status of the children, including matters relating to their care, health, education and extracurricular activities. MSS staff should also be entitled to visit with the children at the petitioner’s home in order to satisfy itself as to their circumstances. In saying this, however, it must be remembered that the petitioner’s home is no longer a foster home and the level of scrutiny on the conditions in the petitioner’s home must be undertaken with a different perspective.

Conclusion [ 35 ] In the result, there shall be an interim order, pending trial, designating the petitioner as a person of sufficient interest pursuant to s. 6 of the CLA . In addition, there shall be an interim order, pending trial, that the children, B and A, shall be returned to the custody of the petitioner. The order of interim custody shall be subject to the condition that MSS shall be entitled, on request, to receive from the petitioner information relating to the children’s care, health, education and extracurricular activities.

The order of interim custody is further subject to the condition that the petitioner shall permit MSS staff to visit the children at the petitioner’s home in order to satisfy themselves as to the information received from the petitioner. [ 36 ] Any costs that can be awarded in this respect of this application shall be in the cause. J. R. W. ELSON