Mi ’ kmaw Family v. Children, 2012 NSSC 412

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Mi ’ kmaw Family and Children ’ s Services v. L.I., 2012 NSSC 412 Date: 20121212 Docket: SFPACFSA-065972 Registry: Port Hawkesbury Between: Mi ’ kmaw Family and Children ’ s Services Applicant v. L.I and B.L. Respondents LIBRARY HEADING Judge: The Honourable Justice Moira C. Legere Sers Heard: July 5 and August 27, 2012 in Port Hawkesbury, Nova Scotia Subject: Section 47(2) of the Children and Family Service ’ s Act (Access after permanent care) and the proper application of the best interests test considering Nova Scotia (Minister of Community Services) v.

T.H. , 2010 NSCA 63 ; Children & Family Services of Colchester (County) v. K.T. , 2010 NSCA 72 ;and Nova Scotia(Community Services) v. C.B. , 2012 NSSC 358 : Issue: What is the test when considering access after permanent care? Sufficiency of evidence on the issue of access?

Summary: Two children were placed in permanent care without access to the biological parents. The Nova Scotia Court of Appeal affirmed the permanent care order and sent the matter back for consideration of access. Result: Limited access granted to regulate inevitable contact. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE

DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Mi ’ kmaw Family and Children ’ s Services v. L.I.,, 2012 NSSC 412 Date: 20121212 Docket: SFPACFSA-065972 Registry: Port Hawkesbury Between: Mi ’ kmaw Family and Children ’ s Services Applicant v. L.I. and B.L. Respondents Restriction on publication: Publishers of this case please take note that s. 94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication.

Section 94(1) provides: “No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or relative of the child.” Judge: The Honourable Justice Moira C. Legere Sers Heard: July 5 and August 27, 2012, in Port Hawkesbury, Nova Scotia Counsel: Robert Crosby, Q.C., for the applicant Coline Morrow, for the respondent L.I. Sam Moreau, for the respondent B.L.

By the Court : [ 1 ] By Decision dated April 27, 2011, the two children who are the subject matter of this proceeding were placed in the permanent care and custody of the Mi ’ kmaw Family and Children ’ s Services with no order as to access. [ 2 ] The applicant mother appealed this decision.

The father abandoned his appeal. [ 3 ] On November 23, 2011, the Nova Scotia Court of Appeal affirmed the Orders for Permanent Care and Custody pertaining to each of the children. [ 4 ] The court allowed the mother ’ s appeal as it related to access, referring this issue of access by the appellant mother to her children back to the Supreme Court (Family Division). [ 5 ] This matter has been delayed for final determination on the issue of access from November 23, 2011 to November 27, 2012 for a number of reasons:

a) in response to the Supreme Court Family Division ’ s offer, the parties unanimously choose to offer more evidence; b)scheduling was delayed until all parties and counsel were available and ready to proceed;

c) a recognition of the need to put the mother in a position to call the latest information; d)waiting for the release of a report concerning the oldest child ’ s behaviour; and

e) the release of Nova Scotia (Community Services) v. CB. , 2012 NSSC 358 [CB] as it relates to “ the best interests ” . [ 6 ] I tolerated these delays having considered the circumstances of these children. The children are in their permanent placement. A delay would not jeopardize their best interests nor would it cause a material change in their circumstances. [ 7 ] This decision will address three issues: 1. Section 47 (2) of the Children and Family Services Act . 1990,c.5 and it ’ s effect on the best interests test. 2. Evidence of Placement; and 3.

Access after Permanent Care . [ 8 ] The Court of Appeal made two brief references worthy of specific mention. [ 9 ] First ,the court referred to the findings of Chief Justice MacDonald in Children and Family Services of Colchester County

v. K.T . , [2010] N.S.J. No. 474 , at paragraphs 39 to 40 wherein he found that : “‘a special circumstances’ under

Section 47 2 (

d) of the Children and Family Services Act may include a permanent placement with a family member, with a view to adoption by that family member, but involving some ongoing contact with the natural parent that was satisfactory to the adopting parents and which would not deter the adoption. ” [ 10 ] Secondly, the court found as follows: “The judge in this case did not consider whether or not access by these children to their mother, the appellant, would jeopardize their placement, whether the potential adoption by the kinship caregivers might qualify as a special circumstances, or other special circumstance exists, or access would be in these children’s best interests.

In my view those issues should be addressed.

Whether this will be done on the evidence presented to her at the final disposition hearing or with the calling of additional evidence will be a matter for the judge to determine , perhaps with the assistance of the parties.” [ 11 ] At the final disposition hearing, having considered all the evidence, the issue of access was, in fact, considered and rejected. [ 12 ] The reasons behind the decision to decline to preserve access between the biological parents and children, were not sufficiently articulated. [ 13 ] First, I will review the law on best interests in the context of statutory

interpretation; second I will identify the process that was followed. [ 14 ] After referring to the evidence on which the decision to decline to grant access was based, I will deal with the new evidence that was introduced post final disposition and post appeal.

Legislative Authority Access after Permanent Care [ 15 ] Section 2(2) of the Act states: “In all proceedings and matters pursuant to this ACT , the paramount consideration is the best interests of the child. ” Best Interests Defined [ 16 ] Section 3(2) of the Act sets out the definition of best interests within the context of this provincial legislation: “2) Where a person is directed pursuant to this Act, except in respect of a proposed adoption, to make an order or determination in the best interests of a child, the person shall consider those of the following circumstances that are relevant: (

a) the importance for the child's development of a positive relationship with a parent or guardian and a secure place as a member

of a family; (

b) the child's relationships with relatives; (

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

d) the bonding that exists between the child and the child's parent or guardian; (

e) the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs; (

f) the child's physical, mental and emotional level of development; (

g) the child's cultural, racial and linguistic heritage; (

h) the religious faith, if any, in which the child is being raised; (

i) the merits of a plan for the child's care proposed by an agency, including a proposal that the child be placed for adoption, compared with the merits of the child remaining with or returning to a parent or guardian; (

j) the child's views and wishes, if they can be reasonably ascertained; (

k) the effect on the child of delay in the disposition of the case; (

l) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent or guardian; (

m) the degree of risk, if any, that justified the finding that the child is in need of protective services; (

n) any other relevant circumstances.

(3) Where a person is directed pursuant to this Act in respect of a proposed adoption to make an order or determination in the best interests of a child, the person shall take into consideration those of the circumstances enumerated in subsection (2) that are relevant, except clauses (i), (

l) and (

m) thereof. 1990, c. 5, s. 3.” Other than subsection (j), all subsections of

section 2 are relevant in this case. [ 17 ] In Nova Scotia, we have the additional requirements set out in section 47 (2) of the Act. [ 18 ] This

section focuses the court ’ s attention on what the court must be concerned with when assessing questions of access after permanent care.

[ 19 ] I have highlighted that which I believe relevant to this case: “Order for Access 47(2) Where an order for permanent care and custody is made, the court may make an order for access by a parent or guardian or other person, but the court shall not make such an order unless the court is satisfied that (

a) permanent placement in a family setting has not been planned or is not possible and the person's access will not impair the child's future opportunities for such placement ; (b)N/A (

c) the child has been or will be placed with a person who does not wish to adopt the child; or (

d) some other special circumstance justifies making an order for access. ” [ 20 ] We have a number of cases from different levels of court that deal with the relation of section 47(2) to the “ best interests test ” . These I refer to herein in chronological order: Nova Scotia (Minister of Community Services) v. T.H ., 2010 NSCA 63 ; (T.H. ) Children & Family Services of Colchester(County) v. K.T. , 2010 NSCA 72 ; (K.T.) L.B. v. Mi ’ kmaw Family and Children Services of Nova Scotia , 2011 NSCA 104 ; ( L.B.) Nova Scotia (Community Services) v.

C.B. , 2012 NSSC 358 ; (C.B.) [ 21 ] There are others : Nova Scotia (Community Services) v G.R. , 2011 NSSC 88 (paragraph 44 ) and Nova Scotia (Community Services) v. L.H. & B.S., 2011 NSSC 41 (paragraph 47 ) that I need not refer to for the purpose of deciding this case. [ 22 ] My purpose in addressing the first four cases is to sound the warning bell about the dangers inherent is the change in direction these cases appear to be taking our Family Courts. [ 23 ] The cases are cited as authority to mandate and permit delays in assessing best interests, adjourn the best interests analysis ( T.H.) , restrict our

interpretation of section 47(2) (K.T.) and subsequently avoid altogether a best interests analysis (C.B.) . [ 24 ] Starting with T.H., the court begins to read down, defer, adjourn or limit the ability and responsibility of the trial court or parents for that matter (inclusive of the Minister / Agency as parent) when addressing the best interests of the child. This approach, I will suggest, is contrary to the preponderance of legislative and case law precedent.

[25] Professor Thompson (Schulich School of Law, Dalhousie University) identifies in his annotation to K.T. the consequence ofreading down or in his words “reading out” other subsections of section 47(2) if one interprets K.T. restrictively. (I will suggest a moreinclusive

interpretation is more congruent with substantive law). [26] In his annotation of K.T. reported at 2010 NSCA 72 , 98 RFL (6th) 272, Professor Thompson state as follows: “For parents or guardians seeking access after permanent care, the T.(K.)

interpretation gives clause (

a) of s.47(2) overriding importance.They must now focus their evidence upon that provision, rather than clause (

d) which has been virtually read out of existence by theappeal court. There will have to be legal argument about the precise meaning of “permanent Placement in a family setting”, or “has notbeen planned or is not possible”, or “will not impair the child’s future opportunities for such placement “ It will be important for them toexplore and test agency evidence about placement option and adoption possibilities in a practical way , rather than just accepting theusual kind of agency evidence like that given in T.(K.) itself at paras 60-64.

Specialist family law judges , who might be sympathetic to aparent’s claim for access in a particular case, will need this kind of specific evidence to get past clause (

a) in a child’s best interests. [27] The danger of reading out other considerations is heightened in K.T. when the court adopts and endorses Fichaud J.’scomments at paragraphs 55 and 56 of T.H. [28] In this case, Fichaud J. rejected the trial judges decision to restrict the adoption prospects of the children he placed in thepermanent care of the Minister. Fichaud J. states at paragraph 56: “The decision under appeal would preclude these legislated processes and standards for adoption. The role of the adoption court underss73 and 78(1) would be eliminated.

There would be no determination of the child’s best interests under s.78 (1) ( c). There would be noapplication of the adjusted adoption criteria for the best interest in s. 3(3) There would be no opportunity for a ministerial consent unders. 74 (7) and

(8) There would be no real people for the adoption court to appraise as potential parents and no evidence ofresidence with the prospective adoptive family for the court to weigh, when the court decides whether adoption is in the child’sbest interest.” [29] In T.H. the trial judge had imposed conditions on placement in an effort to craft a placement plan that recognized what hefound to be the children’s need to maintain contact with their biological parents. Clearly their age and stage of development played asignificant

part in his deliberations. [30] The trial judge in an insightful commentary familiar to family court judges (paragraph 13 of T.H. ) struggled with the interplayof the “legislated” notion of “permanency planning “ for older children where real constraints may exist regarding adoptability. [31] The trial judge in K.T. faced a similar crossroad in attempting to match the reality with the best interests of the children. [32] Each judge met the limit of the law and according to the court, pushed it beyond it’s ordinary meaning. [33] Either a parent has or has not addressed the identified risks in accordance with the

section 45 time lines. [34] If they have addressed the risks, the children must be returned without conditions. If they have not, permanency planning musttake place (without conditions). [35] That was all that was necessary for the purposes of assessing the trial judges decision in T.H. [36] If the legislation does not address current reality, as some suggest, it is the legislature that bears the responsibility to keep thelegislation current as we grow in our capacity to better understand these issues.

[ 37 ] The language of

section 42 of the Act is clear. Rightly or wrongly, courts in final disposition proceedings have no authority to place conditions on Final Disposition Orders. [ 38 ] While the reasoning found at paragraph 56 (in particular) in T.H. has been endorsed in K.T. and followed in C.B. , this reasoning is obiter. It is based on a misapprehension of the adoption process. [ 39 ] The consequence of this misunderstanding is very serious.

It has started a momentum of reducing and limiting the trial judges discretion at the permanent care hearing as they undertake a best interests analysis. [ 40 ] Adopting T.H ., the court in K.T. said as follows: “...further, it would be up to another judge in a later process to decide if a proposed adoption should be granted. (paragraph 2)” [ 41 ] This will not happen . [ 42 ] It is important for the integrity of the actual child protection and adoption process to find the source of this misapprehension. [ 43 ] Going beyond the scope of what was required, the court in T.H . decided that one can delay a best interests analysis to an adoption hearing. [ 44 ] Having suggested erroneously that this could be done, these comments were incorporated by the court in K.T. , when discussing section 47(2) to be expanded in C.B. wherein Jollimore J. states at paragraph 48: “A decision with regard to access following a permanent care order is not one which requires me to consider the children’s best interests.” and at paragraph 49: “According to subsection 47(2), I may not make an order for access unless I’m satisfied that one of certain circumstances enumerated in that subsection exists.

Access may be available where an adoption isn’t planned or where some other special circumstances justifies the access order, for example....” [ 45 ] By first reading down the best interests test in T.H. (unnecessarily) followed with a restrictive analysis of section 47(2) in K.T . on the court ’ s ability to assess access in the context of a best interests analysis, a conflict develops within the legislation itself in the context of substantive law; a law that has evolved and adapted as courts struggle with the diversity and changing face of familial structures. [ 46 ] This diversity was recognized in 1992 by Chief Justice Mc Lachlin in Young v Young : Second, the test ( best interests) is broad.

Parliament has recognized that the variety of circumstances which may arise in disputes over custody and access is so diverse that predetermined rules, designed to resolve certain types of disputes in advance, may not be useful. Rather, it has been left to the judge to decide what is in the "best interests of the child", by reference to the "condition, means, needs and other circumstances" of the child. Nevertheless, the judicial task is not one of pure discretion.

By embodying the "best interests" test in legislation and by setting out general factors to be considered, Parliament has established a legal test, albeit a flexible one. Like all

legal tests , it is to be applied according to the evidence in the case, viewed objectively. There is no room for the judge's personal predilections and prejudices. The judge's duty is to apply the law. He or she must not do what he or she wants to do but what he or she ought to do.” [ 47 ] And again: “the ultimate test in all cases is the best interests of the child.

This is a positive test encompassing a wide variety of factors, ...compatible with the best interests of the child..The judge must determine all factors relevant to determining what is in the best interests of the child.” [ 48 ] If we widen the lens through which we look for a full view of substantive law in a contextual analysis, we see that a restrictive

interpretation of K.T. places this and other decisions in conflict with the Federal and Provincial Legislation that occupies the family law field wherein the paramount concern is “ the best interests of the child ” in it ’ s broadest sense. [ 49 ] What is problematic in K.T. is the endorsement of the comments of Fichaud J. in Nova Scotia (Minister of Community Services) v. T.H. , 2010 NSCA 63 as if they were true. [ 50 ] The court appeared to be under the mistaken belief that a meaningful enquiry of best interests generally takes place in a judicial setting at the adoption stage of the proceedings.

Thus it follows that at some point the court operated under the mistaken belief that an unfettered analysis of best interests would eventually take place. [ 51 ] Relying on that mistaken assumption, Fichaud J. on behalf of the court, suggested that delaying or adjourning the assessment of best interests to the adoption stage (a future and uncertain date) met the legislative intent. [ 52 ] This kind of best interests enquiry at the adoption stage rarely, if ever, happens.

Nor is it designed to happen if one understands the legislation prescriptions in a factual reality. [ 53 ] Fichaud J. appeared to be concerned that by imposing conditions of the placement in permanent care (refusing adoption), the role of the adoption court under sections 73, 78(1) and 78(

c) would be eliminated. [ 54 ] The offending paragraph (56) and the analysis that follows spoke to the competing roles of the final disposition court verses the adoption court. [ 55 ] In reality, these two courts referred to are one and the same; they are responsible for both functions. It was an arbitrary and unnecessary distinction. [ 56 ] Based on a misapprehension of the actual process of adoption these comments have the exact effect of reducing / limiting the trial judges discretion as they undertake a best interests analysis before adoption.

They defer to an adoptions court as “ the proper place ” for such an expanded analysis when in fact this will not happen. [ 57 ] This analysis in K.T. adopting conclusions in T.H. that one can adjourn the analysis of best interests to the adoption hearing offends the legislative intent and spirit of the Act as stated in the

preamble wherein we are directed to respect the child ’ s sense of timing ( the child ’ s sense of timing is unique ); it offends the requirements and expectations set out in

section 2 and 3 as well the subsequent

interpretation of section 47(2) (a) (if interpreted as exclusive to other considerations).

[58] It is the child’s best interest, not the perspective of the various courts or parties, that is paramount. [59] This analysis in T.H. and K.T. also offends

section 45 of the Act in which the legislature sets out specific time limits beyondwhich we must not venture and within which we must be concerned with permanency planning for the children within our judicial view. [60] It erroneously defers, adjourns and effectively denies for the child and any other interested party (except for the party proposedby the Minister), a meaningful enquiry into best interests as it is described in its broadest form. [61] This prescribed approach essentially denies the child and other interested parties both access “to the court” and “access tojustice”. [62] This analysis takes from the court in the first instance the ability to exercise it’s responsibility to conduct a thorough and broadanalysis at final disposition thereby eliminating an exhaustive review of best interests. [63] This leaves the child(ren) almost absolutely at the mercy of the internal administrative adoptive process, virtually withoutjudicial review. [64] This approach, as I will outline, is incongruent with the actual process of adoption. [65] In K.T., the court addressed our obligation to address best interests in sections 2 and 3 as well as adopting the comments ofGonthier J.

In New Brunswick (Minister of Health & Community Services) v. M.L., (SCC), [1998 S.C.J. No 52]and Abella J. in Nova Scotia (Minister of Health) v.

J.J., 2005 SCR 177). [66] However, by adopting the false assumptions in T.H. and incorporating them into K.T. adding a restrictive analysis of section47(2), the court began a process that may significantly alter our ability to address best interests in the final disposition stage. [67] This is not consistent with the comments of Gonthier J. who directs that courts must have sufficient information to assessaccess after permanent care and if not must direct further evidence be filed to ensure the court fulfills its duty to assess the best interests. [68] Oland J. in L.B. moves in a more expansive direction when she emphasized the court’s responsibility to undertake a“meaningful enquiry” and articulate reasons why access after permanent care does or does not address the best interests of the child. [69] Oland J.’s decision, while apparently inconsistent with the restrictions placed on the courts by T.H. and T(

K) is coherent withthe substantive body of law that describes the assessment of best interests as a “broad enquiry” not fettered as T.H. and T(

K) may beinterpreted to mean. [70] As Gonthier J. said in paragraph 30 of New Brunswick (Minister of Health & Community Services) v. M.L. (SCC), [1998 S.C.J. No 52]: “This

interpretation of the Act is consistent with what was intended by the legislature, that is, the best interests of the child. Any otherinterpretation would leave the question of access entirely in the Minister's hands. This would not be desirable, in that the children mightsuffer, for example, from administrative oversights, lack of communication or tensions between the people involved (see Re H.I.R.(1984), 1984 ABCA 28 , 37 R.F.L. (2d) 337 (Alta. C.A.), at p. 344; Children's Aid Society of Winnipeg v. N. (1979), (MB CA), 9 R.F.L. (2d) 326 (Man. C.A.), at p. 331).”

[ 71 ] To illustrate the misapprehension of the adoption process as envisioned by Fichaud J., a look at the actual adoption process is in order. Fichaud said in paragraph 56: “The role of the adoption court under sections 73 and 78(1) would be eliminated.” [ 72 ]

Section 73 simply states as follows: “An application for adoption shall be made to the court. Section 78(1)(

c) states that: the court must be satisfied as to (a) (

b) and that the adoption is proper and in the best interests of the child.” [ 73 ] Section 77(1) demands that every adoption hearing is in camera although the court may permit someone to be there if appropriate, and: “section 77 (4) demands that the name of the child is not to appear in the title of the application. the child’s name is generally not on the record, the proceedings are restricted to the public.” [ 74 ] Thus, any interested party, as in the cases before the court, would be denied access to the court to have their plan reviewed. [ 75 ] In compliance with the spirit and intent of this Act , court practice and procedure was developed around adoptions: ● The child’s name does not appear on the public record or the public docket. ● Generally and historically, the child’s name is not mentioned on the court record except by the identification of the child with his or her birth registration number. ● Court procedure dictates that adoption files are kept in a separate secure place in the court administration office.

They can be obtained only with court administrator’s assistance. ● The registration number is the only identifying feature on the file folders and dockets. ● The court staff are directed not to disclose the names of the parties ever. ● The judicial assistant obtains the file from a locked cabinet. It is only the lawyer involved in the matter who is paged to the court. ● No information would be available to the public to determine that an adoption is in process.

● The court log shows only the registration number.

If a log is kept the court reporter is responsible for destroying it. ● Any order signed by the justice responsible for the hearing are to be given to a designated person for distribution ● The running file is not to contain the lawyers name or the cassette number so as to allow the public to determine who was present. ● The entry onto the civil index is limited to display that an order was granted. ● To the interested public there would be no discernable method of finding out when the adoption was coming before the court should one be interested in applying for status or putting forward a competing plan to address the best interests of the child. ● Access to the record is restricted by policy.

After the adoption is granted the record is sealed. [89] If that were not enough to exclude interested members of the public, section 74 (7) and (8) deal with the entitlement to give consent for children in care. The Act states as follows: “

(7) No order for adoption of a child in care of the Minister shall be made without the written consent of the Minister and no order for the adoption of a child in care of an agency shall be made without the written consent of the agency or the Minister

(8) Subject to subsection (1) and pursuant to subsection(7) , where a child proposed to be adopted is a child in care , the written consent of the agency or the Minister is the only consent required. ” [90] To further close and lock the door to “ any meaningful enquiry ” into the merits of the application; before a child in the permanent care of the Minister can be placed for adoption with the prospective adoptive parent, any right of access which may exist in an order under section 47(2) must be terminated. [91] The only other option for an interested party to place their case before the court is by way of application to terminate permanent care.

This involves a hearing on the merits before the placement of a child may occur and after the final disposition hearing. [92] Where the Permanent Care Order contains no order as to access , no other party except the Minister (section 76(1)(a)) is entitled to Notice. [93] If there is simply an order placing a child in permanent care with no order preserving access one would have to launch an independent action to be added as party or for intervenor status in anticipation of an adoption. [94] Should there be an Order for Permanent Care with an Order with Access, the prospective adoptive parents must first make application to dispense with their consent.

This necessitates an application and further litigation. [95] Thus, the prospective adoptive parents or the Minister must first apply to the court to terminate any access order before the child can even be placed for adoption (Section 70(3)). [96] Given these considerations, the deferral of a broad consideration of the best interests analysis not only offends the child(

s) sense of timing it defers it to a fictional point in time. [97] This offends the right of the child to have his or her best interests either assessed by the courts or properly assessed by the Minster ’ s agents with the added protection afforded the child that if the Minister failed to follow the directions for such a determination as set out in the Young v.

Young analysis, the protection of a judicial review would allow the courts to exercise its supervisory capacity to ensure in the final analysis the Minister did in fact follow that which was mandated by the Supreme Court of Canada. (see paragraph 94 herein) [98] The Supreme Court mandates an assessment in it ’ s broadest context “ the best interest of that child ” . [99] This recent approach in T.H, K.T. and CB undermines our ability to preform our paramount duty to examine the best interests of the child .

Delay [100] In the adoption process, unless the Minister modifies the time period under section 76(2), the court shall not make an order for adoption unless the child has been in the care of the adoptive parent for 6 months as required (section 76(1)( c)). [101] Contrary to what the court in T.H. perceived to be the court ’ s jurisdiction regarding residency (paragraph 57), it is the Minister who may waive the time period (the residency requirement referred to in T.H. ), not the court. [102] In the actual adoption process, the court simply has to assure itself that the residency requirements have been meet in accordance with the legislation or the Minister ’ s wishes . [103] After apprehension, therefore in accordance with

section 45, a child under six may have been in the protection process for up to18 months. [104] If the child is six to 12 years of age, the child may have been in the protection process up to two years. [105] What the court does by deferring a full best interests analysis is to add another six months to the litigation life of this child unless the matter is before the Court of Appeal in which case yet another five to six months again may be added to the child ’ s life. [106] This delay is clearly not congruent with the child ’ s sense of timing and

section 45 of the Act . [107] There is, therefore, a stark contrast between the process demanded of courts in the substantive body of law surrounding “ a best interests analysis ” and that which takes place in the adoption process. [108] In the Young v Young analysis, courts and parents (inclusive of the Minister under s. 47(1)) must weigh the competing plans , balance the benefits and risks of harm to the completing plans and assess which better addresses the best interests. [109] Where children are children ‘ in care ’ the adoption process has, for all intents and purposes, become a quasi judicial - administrative function. [110] Rarely, if ever, are competing plans placed before the courts.

[111] In all but the exceptional cases (and I have seen none in my 20 years as a Judge) in the ordinary adoption proceeding there are no competing plans to weigh, or benefits to measure (as required in a Young v. Young analysis) [112] Even though there is but one plan before the court, there is minimal evidence (perhaps a two page affidavit simply complying with

section 71 (

a) and (b)) and little else (absent even the adoption study prepared by the Agency). [113] The court is restricted to a review of the generally very brief affidavit setting out the bare particulars of the person(

s) already approved by the Minister. [114] In practice and in fact, therefore, in child protection cases there are only two parties to the adoption process (the Minister and the approved adoptive person(s)) (approved in advance by the Minister). [115] The court reviews the application to ensure it complies with the notice requirements of the Minister and any other party entitled to notice, to ensure all necessary consents are present, to confirm that the child has been with the prospective adoptive parent for at least six months prior to the application, and that the Minister has had at least one months notice of the actual court date. [116] To suggest after six months that a court would consider further disruption of a child already placed in a prospective adoptive home particularly after a lengthy child protection proceeding (absent problems in the home) is incompatible with the spirit and intent of the legislation, permanency planning and the overall best interest stipulation and completely disregards the issue of continuity of care and attachment theory. [117] Indeed, the probability that a court would have enough evidence to reject an adoption before it that was approved by the Minister, unless there has been non compliance with the procedural requirement, is minuscule. [118] The court primarily ensures the adoption process follows the statutory requirements and endorses the Minister ’ s choice of parent. [119] There is, therefore, effectively no independent evidence or review.

The adoption process, while judicial in nature, is not an opportunity for a meaningful enquiry into the best interests of the child . [120] In this reality to reduce or delay an inclusive best interests analysis while the matter is already before the court in a Final Disposition hearing is tantamount to an abdication of our responsibility as courts (and parents, including the Minister / Agency) to conduct the fullest analysis possible in accordance with the fundamental and paramount consideration (best interests); with a sense of timeliness that respects the child ’ s sense of time (sooner rather than later) as articulated in the

preamble to the Act ; and

section 45 (the need for permanency planning) in accordance with the child(

s) age and stage of development while there are in fact competing interests before the court. [121] To suggest as the court does in T.H. that parties find another forum or apply to the court at a later date is to encourage multiplicity of litigation, a course of action specifically frowned upon by our courts and one which will ultimately (given the costs of litigation and the lack of transparent access to the adoption proceedings) result in a denial of access to the courts. [122] This approach is problematic first because the only parties that can endure this kind of multiplicity of actions is the Agency /Minister and or the client poor enough to obtain legal Aid. [123] Secondly, our role as trial judges requires that we keep our eyes firmly on the children before us in each case.

To the extent of our legislated authority we must not take our eyes off the particular child ’ s best interests and needs clearly in our view.

[124] Sending a child away from our court when we have the mandate and obligation to address their best interests and needs to try another court with limited mandate to meet their needs at a later date , further delaying an assessment of their needs in a system fraught with systemic delays does not make sense. [125] It is, therefore, important to recognize the frailty of the assumptions underpinning the belief that another court will complete this most essential task during the adoption process.

Exclusive Jurisdiction as to Placement [126] Also problematic and perhaps too bold a statement is the suggestion in K.T. that the court plays no role in placement issues. [127] In K.T. , the court incorporated Children and Family Services Act , S.N.S. 1990,c5 (C.F.S.A.) that : “...once a permanent care order is made, it is up to the Minister and not the disposition hearing judge to decide if and when the children should be placed for adoption. Further it would be up to a judge in a later process to decide if a proposed adoption should be granted.

Both the Minister and the adoption judge are to make those decisions in accordance with the child ’s best interests. ” [128] We know how limited the enquiry at the adoption stage is. [129] Abella J. wrote the following for the Supreme Court of Canada in Nova Scotia (Minister of Health) v. J.J., 2005 SCR 177). “ The significance of independent judicial review of state action when a vulnerable adult has been deprived, at the instigation of the state, of the right to function autonomously, cannot be overstated. The court's statutorily assigned supervisory role emerges from the adult's vulnerability.

The corollary of a judicial determination that an adult is in need of protection is a corresponding limitation on that adult's autonomous decision making and liberty. It is the function of the court to monitor the scope of that limitation. The legislation must, therefore, be interpreted in a way which acknowledges the intrusiveness of the determination and offers muscular protection from state intervention incompatible with the adult's welfare. Section 9(3)(

c) should not be applied in a way that frustrates that responsibility.” [130] The court in T.H. acknowledge the importance of the supervisory function in child protection matters where the children are likewise among our most vulnerable citizens. In reference to J.(J.), Fichaud J., said as follows: “I disagree with the Minster that J.(J)’s reasoning dissolves just because the CFSA is a different statute.

The Supreme Court of Canada (p.15) described its reasoning as an “interpretive exercise” Justice Abella gave an “interpretation”(16) of the broad words in s.9(3)(c)that assigned to the court a “statutory “(21) responsibility to measure services against best interests. J(J) ’s approach is interpretive , and the Supreme Court;s reasoning pivots on the Legislatures intent.

J.(J.)’s message for the CFSA is that the relevant statutory provisions be interpreted to determine how the Legislature intended to channel the promotion of the child ’s best interests. (para 24 TH).” [131] In following T.H. and K.T. we must exercise caution to avoid limiting the application of J.(J.) to situations where the court steps in to exercise its parens patria jurisdiction in the event of a “ legislative gap ” . [132] As the court correctly noted in T.H. , the trial judge in J(J.) did speak to the deficiencies in the Adult Protection Act .

[133] However, no-where in the Supreme Court decision did the court justify or confine court intervention based on parens patria orfilling a void in the legislation. [134] The court in T.H. correctly identified Abella J.’s approach as one of legislative

interpretation as to the responsibility of the courtbased on the statute . [135] The decision is clear and unambiguous. Abella J undertook ; a statutory interpretive approach referring to the duty of courts aswritten in the Adult Protection Act to interpret the adults best interests is a way that fulfills the court’s mandate to act in the bestsinterests of the adult. [136] Bateman J. speaking for the court in G.(S.) V. Children’s Aid Society of Cape Breton, 1996 NSCA 97 ,1996 CarswellNS 174, 151 N.S.R. (2d) 1, 440 A.P.R. 1, 23 R.F.L. (4th) 189, on the merits of an application to terminate permanent careendorsed both a flexible approach and

interpretation to “best interests” and the need for timely resolution. Interpretative Guide [137] Recognizing the court’s mistaken perception of the adoption process and the dangers inherent in delaying a full best interestsanalysis (delay becoming essentially denial) as suggested in T.H. and as adopted in K.T. how do we interpret section 47(2) in light ofthe court’s comments in K.T. [138] Was it the intention of the court to conclude that section 47(2) ought to be read to exclude other directives that have evolvedthrough time, case law and legislation? [139] The more serious question is, does K.T. by focussing on 47(2)(

a) as an overriding factor, “virtually read out other clausesincluding (d)”? If it does, for many important reasons, it ought not to. [140] A review of Sullivan and Driedger on the Construction of Statutes (4th edition) by Ruth Sullivan Professor of Law University ofOttawa is a good starting point. [141] Two ideas that are fundamental to statutory

interpretation are: 1.the meaning of a text depends on its context; and 2. The statute book is comprised of a coherent and internally consistent set of rules c.10 [142] The meaning of a word depends on the context in which it is used. [143] As Viscount Simonds wrote in A.G. v. Prince Ernest Augustus of Hanover: “...words , and particularly general words , cannot be read in isolation: their colour and content are derived from their context. So it isthat I conceive it to be my right and duty to examine every word of a statute in its context , and I use “context” in its widest sense)[1957]A.C.436, at 461(H.L).” [144] Professor Sullivan quotes as follows:

“In Prassad v. Canada (Minister of Employment & Immigration) , Sopinka J. wrote: In order to arrive at the correct

interpretation of statutory provisions that are susceptible of different meanings, they must be examined in the setting in which they appear. 3 In Poulin v. Serge Morency et Associés Inc . , Gonthier J. wrote: As Côté notes, ... the meaning of words depends in part on the context in which they are used. The overall context of an enactment includes, inter alia , the other provisions of the statute, the related statutes and the other rules of the legal system. 4 Context is a vague and malleable term. In modern usage, it may refer to anything that contributes to a text’s meaning, other than the text itself.

As indicated by Lord Normand in the Prince Augustus case, it is generally taken to include a wide range of internal and external materials: In order to discover the intention of Parliament it is proper that the court should read the whole Act, inform itself of the legal context of the Act, including Acts so related to it that they may throw light upon its meaning, and of the factual context, such as the mischief to be remedied, and those circumstances which Parliament had in view." [1957]A.C.436, at 461(H.L.) p.465. [145] Context is: “generally taken to include a wide range of internal and external materials”(emphasis mine) [146] When one looks to substantive law to infer legislative intent we assume: “ that drafters, legislatures and interpreters all operate within a shared legal tradition that informs their understanding of legal texts.” [147] Professor Sullivan continues: “ the external context consists of the setting in which the law was enacted and the setting in which it currently operates .

The key assumption here is that legislation is not an academic exercise .

It is a response to circumstances in the real world and it necessarily operates within an evolving set of institutions , relationships and cultural assumptions. ”( my emphasis) [148] Thus, we look to the immediate context (the words in the legislation); the Act as a whole; the statute book; the related legislation and the common law; and if relevant, international law; and finally the external context (the historical setting to which a provision was enacted or the setting in which it currently operates). [149] I would refer to this final consideration as “ real life ” . [150] Considering ‘ external context ’ is an important part of every interpretive exercise: “Whether acknowledged or not, interpreters rely on their knowledge of the world– on social , political , historical ,economic and

cultural assumptions-in determining the meaning and purpose of texts and in assessing their consequences. For this reason the reluctanceof some courts to look at evidence of external context is troubling.” (p.262) [151] I add to this comment that it is particularly troubling when the assumptions in this external context are mistaken. It is here thatthe we need to consider very carefully the admonition of our Chief Justice McLachlin who cautioned us as judges (and parents inclusiveof the Minister / Agency) as follows: “There is no room for the judge's personal predilections and prejudices.

The judge's duty is to apply the law. He or she must not do whathe or she wants to do but what he or she ought to do.” [152] That is to say in the absence of actual evidence we must not fall prey to imputing our cultural and institutional values in ourinterpretation of legislative intent that reflect our own judicial prejudices and predilections. [153] To continue with the legislative analysis : “Coherence It is presumed that the provisions of legislation are meant to work together , both logically and technologically, as parts of a functioningwhole.

The parts are presumed to fit together logically to form a rational , internally consistent framework; and because the frameworkhas a purpose, the parts are also presumed to work together dynamically ,each contributing something toward accomplishing the intendedgoal (p.262) ... The presumption of coherence is also expressed as a presumption against internal conflict. It is presumed that the body of legislationenacted by a legislature does not contain contradictions or inconsistences, that each provision is capable of operating without coming intoconflict with any other.(p.263) ...

The presumption of coherence is a presumption against internal conflict,(p.263) ... There is a presumption that the legislature did not intend to make or empower the making of contradictory enactments ( LaForest J., (SCC), [1992]1S.C.R.3 at 38) ... I start from the fundamental principle of construction that provisions of a statute dealing with the same subject should be read together ,where possible, so as to avoid conflict....In this way, the true intention of the Legislature is more likely to be ascertained.( McLachlin J.In MacKeigan (J.A.) V.

Royal Commission (Marshall Inquiry), (1989), (SCC), 61D.L.R.(4th) 688, at 716 (S.C.C.) ) ...

With respect to the application of the contextual approach...the objective is to interpret statutory provisions to harmonize the componentsof legislation in as much as is possible , in order to minimize internal inconsistency....(Sopinka J. In Willick v. Willick (SCC), [1994]3S.C.R. 670 at 689) ... There is no doubt that the principle that statutes dealing with similar subjects must be presumed to be coherent means thatinterpretation s favouring harmony among statutes should prevail over discordant ones (...Lamer C.J. in Point-Claire (City) v.Quebec( Labour Court) (SCC), [1997]1S.C.R. 1015 ) ...

Overlapping Provisions are presumed to apply(p.264)” [154] Unless there is evidence that one provision (overlapping subject matter) was intended to provide an exhaustive declaration onthe applicable law, where two provisions are applicable without conflict, it is presumed that each of the provisions is meant to operatefully according to its terms. [155] In the case before me, I ask is section 47(2) (a) (the more specific subsection) meant to be exhaustive? If not, there is no reasonto exclude the more general subsections such as section 47(2) (d). [156] . If as in Tabernacle Permanent Building Society v.

Knight, the sections under review can “stand together and both operatewithout either interfering with the other”, there is no conflict (Lord Halsbury [1892]A.C. 298,at 302 (H.L.). Thus there is no need to resort to “conflict avoidance” strategies as is required when interpreting legislation. [157] There is no evidence that would support a conflict between the subsections in section 47(2) or as between section 47(2) andsection 2 and 3 of the Act. [158] Is there any need to and is it wise to suggest that the specifics in section 47(2)(

a) is interpreted as overruling the general? [159] MacDonald C.J. in his analysis at paragraphs 24 and 25 cites the importance of 2and 3 of the Act specifically,incorporating these and emphasizing the best interests as the paramount consideration. [160] The bulk of authority approaches the application of this test ‘in the moment’ to respect the need for a timely analysis in thecircumstances and in it’s broadest sense. [161] While section 47(2) does create a statutory presumption that access is not in the best interests of the child, if certain conditionsexist our analysis ought not to stop there. [162] If these conditions exist, this creates a preference for permanent care without access. [163] If those conditions listed exist, we need to then assess those conditions to determine on the totality of the evidence what servesthe best interests of the child or children before us.

[164] This would be more in harmony with the specific statute, the entire body of statutes and congruent with the entire body of thelaw inclusive of the specific provision. [165] It would be more congruent with the comments of Oland J. (see paragraph 9) to read K.T. solely in the context of the case thenbefore the court; one which demanded special considerations and L.B. v. Mi’kmaw Family and Children’s Servces of Nova Scotia,2011 NSJ No 623, as demanding what Gonthier J. did in New Brunswick (Minister of Health and Community Services ) v.

ML,[1998] 2 SCR, that is that we conduct a meaningful unfettered analysis of access after permanent care and seek out that information weneed to do so. [166] That would be in harmony with the specific statutes, the other body statutes dealing with children and the vast body of case lawwhich adopts consistently a broad application of best interests test. [167] We ought to read the sections as coherent rather than place them in conflict with one another. [168] It follows that interpreting K.T. so as to further restrict the courts ability to conduct a meaningful enquiry moves us furtherfrom the spirit and intent of a vast body of substantive law . [169] It is also critical to avoid an

interpretation of C.B.. that permit courts to enter into a reduced analysis of best interests at thepermanent care proceeding. [170]

Interpretation of the law must attempt to be congruent with what is actually happening in the lives of Nova Scotians. [171] Chief Justice MacDonald referred specifically to a consideration of section 3(2) of the Act. He did not say a consideration ofsection 47(2) precludes a consideration of section 3(2). [172] Best interest always remains a mandatory consideration. To exclude such an analysis in any circumstances where a child isbefore us is unwise and unnecessary.

Case Law [173] Having reviewed the statutory context, a review of the case law is in order to obtain the entire context. [174] Justice Gonthier stated in New Brunswick (Minister of Health and Community Services ) v. M.L., [1998]2 SCR: “The decision to be made concerning access , like all decisions concerning the child , must be made in the child’s bestinterests.”(Paragraph 37) [175] As Justice Cromwell said in A.M. v.

Children’s Aid Society of Cape Breton-Victoria, 2005 NSCA 58 (paragraph 36): “the decision as to whether or not to grant access is a ‘...delicate exercise which requires the judge weigh the various components of thebest interests of the child.” [176] In Young v. Young, (SCC), [1993] 4 S.C.R. 3, McLachlin J. summarized the law relating to best interests in aprivate divorce proceeding in deciding questions of custody and access.

[177] She directed that the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child. [178] Her comments endorse the paramountcy of the test articulated in the Children and Family Services Act (ie: the “ best interests ” ) [179] McLachlin writes : “The Wording of the Act Parliament has adopted the "best interests of the child" test as the basis upon which custody and access disputes are to be resolved. Three aspects of the way Parliament has done this merit comment.

First, the "best interests of the child" test is the only test . The express wording of s. 16(8) of the Divorce Act requires the court to look only at the best interests of the child in making orders of custody and access. This means that parental preferences and "rights" play no role. Second, the test is broad. Parliament has recognized that the variety of circumstances which may arise in disputes over custody and access is so diverse that predetermined rules, designed to resolve certain types of disputes in advance, may not be useful.

Rather, it has been left to the judge to decide what is in the "best interests of the child", by reference to the "condition, means, needs and other circumstances" of the child. Nevertheless, the judicial task is not one of pure discretion. By embodying the "best interests" test in legislation and by setting out general factors to be considered, Parliament has established a legal test, albeit a flexible one. Like all legal tests , it is to be applied according to the evidence in the case, viewed objectively. There is no room for the judge's personal predilections and prejudices.

The judge's duty is to apply the law. He or she must not do what he or she wants to do but what he or she ought to do.” Third , s. 16(10) provides that in making an order, the court shall give effect "to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child." This is significant. It stands as the only specific factor which Parliament has seen fit to single out as being something which the judge must consider.

By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized . The modifying phrase "as is consistent with the best interests of the child" means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. But only to that extent.

Parliament's decision to maintain maximum contact between the child and both parents is amply supported by the literature, which suggests that children benefit from continued access: Michael Rutter, Maternal Deprivation Reassessed (1981), Benians, "Preserving Parental Contact", in Fostering Parental Contact (1982).” [180] The third element is less applicable to post final disposition findings in part because the parental relationship has been severed and in part because section 47(2) speaks to a presumption that access which interferes with adoption is contraindicated. [181] The Supreme Court in Young , v.

Young requires courts to complete a risk benefits analysis to decide these issues in accordance with the best interests of the child. [182] This obligation applies to the judge and to parents (which implicitly includes the Agency and / or the Minister( s. 47(1) of the Act )). [183] While written in the context of a divorce variation, I am unaware of any conflicting authority that would give courts, parents or the Minister permission to avoid a risks benefits analysis to attain the best interests result:

“227...The only question to be considered where limitation of access is in issue is what is in the best interests of the child. While thecustodial parent has the obligation to make certain basic decisions as to how the child is educated, which may extend to religiousmatters, this does not automatically mean that religious contacts with the access parent of a different faith are to be excluded.

It is not thewishes of the custodial parent that govern terms of access, but the best interests of the child. 228 Second, the trial judge failed to consider the benefits which might enure to the children from coming to know their father as he was-- that is, as a devoutly religious man devoted to the Jehovah's Witness faith.

She made no reference to Parliament's instruction in s.16(10) that the child shall have as much contact with both parents as is compatible with her best interests. 229 Thirdly, the trial judge failed to consider adequately whether there was any evidence of a risk of harm to the children whichmight offset the benefit of full access to their father's values, including those related to religion.

While in some circumstances access maybe limited on grounds unrelated to harm, in cases such as this, where the issue is whether entirely lawful discussions and activitiesbetween the access parent and the child should be curtailed, it behooves the judge to enquire whether the conduct poses a risk of harmingthe child. 230 While the trial judge alluded to the possibility that if Mr.

Young continued to share his religion with the children, he would damagehis relationship with the elder two, she failed to allude to any other suggestion of harm and failed to consider whether such harm mightoutweigh the benefit to be gained from a freer, fuller relationship with their father.” [184] The issue of access after permanent care was discussed at length in New Brunswick (Minister of Health & CommunityServices) v. M.L., (SCC), [1998 S.C.J. No 52]. At that time the New Brunswick legislation did not have a specificprovision similar to

section 47 of the N.S. Act. [185] Gonthier J. said at paragraph 29: “29 If the court has the power to "preserve" a right of access after adoption, a measure that is even more drastic and final thanpermanent guardianship, it would be illogical for it not to have the power to grant access when it makes the initial permanentguardianship order. 30 This

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

interpretation would leave the question of access entirely in the Minister's hands. This would not be desirable, in that the childrenmight suffer, for example, from administrative oversights, lack of communication or tensions between the people involved (see Re H.I.R.(1984), 1984 ABCA 28 , 37 R.F.L. (2d) 337 (Alta. C.A.), at p. 344; Children's Aid Society of Winnipeg v. N. (1979), (MB CA), 9 R.F.L. (2d) 326 (Man.

C.A.), at p. 331). 31 To summarize, I am of the view that the New Brunswick legislature has given the courts jurisdiction to decide access rights, sinceit requires that they "place above all other considerations the best interests of the child" (s. 53(2)).

Denying the courts the opportunity todecide whether an access order should be made could prevent them from performing their duty of acting in the best interests of the child.It is not surprising that the New Brunswick courts, supported by the judgment of the Court of Appeal in Re M.A.G., supra, havegenerally found that they possess this jurisdiction. 32 Moreover, a judge hearing an application by the Minister for permanent guardianship of a child is in an excellent position to assessthe consequences of granting access.

The judge hears the testimony and submissions of all the parties involved, and of their expertwitnesses, and has the power, where necessary, to order additional evidence on the question of access. In this instance, he is in aposition to hear and draw the necessary conclusions from the evidence relating to what happened on earlier visits.” [186] In assessing best interests, Gonthier J. referred to the definition of best interests set out in the New Brunswick statute.

[187] He emphasized that the paramountcy of the child’s best interests is absolute. He continued his analysis using the elementsoutlined in

section 1 of the New Brunswick legislation. [188] Later, he reviewed the legislation in Nova Scotia and Ontario wherein the legislature articulated specific considerations underthat broader umbrella of considerations related to the best interests of the child in the context of the facts of each case: 37 The decision to be made concerning access, like all decisions concerning the child, must be made in the child's best interests. Unders. 1, the determination of the best interests of the child takes into consideration: (

a) the mental, emotional and physical health of the child and his need for appropriate care or treatment, or both; (

b) the views and preferences of the child, where such views and preferences can be reasonably ascertained; (c)the effect upon the child of any disruption of the child's sense of continuity; (

d) the love, affection and ties that exist between the child and each person to whom the child's custody is entrusted, each person towhom access to the child is granted and, where appropriate, each sibling of the child and, where appropriate, each grandparent of thechild; (

e) the merits of any plan proposed by the Minister under which he would be caring for the child, in comparison with the merits of thechild returning to or remaining with his parents; (

f) the need to provide a secure environment that would permit the child to become a useful and productive member of society throughthe achievement of his full potential according to his individual capacity; and (

g) the child's cultural and religious heritage; [Emphasis added.] 38 An order for permanent guardianship is the result of a consideration of the best interests of the child. In considering whethervisiting or access rights should be granted, the judge cannot ignore the fact that he or she has first found it necessary to remove the childfrom the parents' care completely and permanently, so that the child's welfare will not be jeopardized any further.

The judge musttherefore consider whether more limited contact might still be beneficial for the child. 39 My consideration of whether access should be granted is based on the following principles. First, there is no inconsistency inprinciple between a permanent guardianship order and an access order. Second, access is the exception and not the rule. Third,the principle of preserving family ties cannot come into play in respect of granting access unless it is in the best interests of thechild to do so, having regard to all the other relevant factors.

Fourth, an adoption, which is in the best interests of the child, mustnot be hampered by the existence of a right of access. Fifth, access should not be granted if its exercise would have negativeeffects on the physical or psychological health of the child. 43 In addition, even where the Minister intends to try to find an adoptive family for a child under his guardianship, it may be in the bestinterests of the child to maintain contact with his or her natural family. Section 85(2) of the Act provides that the court may preserve aright of access even after adoption.

For instance, it may be necessary to ensure a child's emotional stability by keeping him or her in thefoster family, so that the child does not have to live with a parent who is unable to provide for his or her welfare but can neverthelesshave the opportunity to maintain and cultivate an emotional tie with that parent (Nouveau-Brunswick (Ministre de la Santé et desServices communautaires) v. L.L., [1997] A.N.-B. no 417 (QL) (Q.B.); Nouveau-Brunswick (Ministre de la Santé et des Servicescommunautaires) v. L.L. (1990), (NB KB), 109 N.B.R. (2d) 202 (Q.B.)). (ii) Access: the exception and not the rule

44 A review of the case law and legislation of the other provinces shows that access is the exception and not the rule in the context of apermanent guardianship order. In Ontario and Nova Scotia, the legislation creates a presumption that any right of access isrevoked, and sets out the exceptional circumstances in which an access order may be made. Child and Family Services Act, R.S.O. 1990, c. C.11 59. . . .

(2) Where a child is made a Crown ward under paragraph 3 of subsection 57 (1), the court shall not make an order for access by theperson who had charge of the child immediately before intervention under this Part unless the court is satisfied that, (

a) permanent placement in a family setting has not been planned or is not possible, and the person's access will not impair the child'sfuture opportunities for such placement; (

b) the child is at least twelve years of age and wishes to maintain contact with the person; (

c) the child has been or will be placed with a person who does not wish to adopt the child; or (

d) some other special circumstance justifies making an order for access. Children and Family Services Act, S.N.S. 1990, c. 5 47 . . .

(2) Where an order for permanent care and custody is made, the court may make an order for access by a parent or guardian or otherperson, but the court shall not make such an order unless the court is satisfied that (

a) permanent placement in a family setting has not been planned or is not possible and the person's access will not impair the child'sfuture opportunities for such placement; (

b) the child is at least twelve years of age and wishes to maintain contact with that person; (

c) the child has been or will be placed with a person who does not wish to adopt the child; or (

d) some other special circumstance justifies making an order for access. The burden of proving the existence of one of these exceptional circumstances rests on the person claiming the access rights(Nova Scotia (Minister of Community Services) v. S. (S.M.) (1992), (NS CA), 41 R.F.L. (3d) 321 (N.S.S.C.A.D.), atp. 335; Nova Scotia (Minister of Community Services) v. K.M.S. (1995), 141 N.S.R. (2d) 288 (Fam. Ct.), at pp. 306-7). 45 In New Brunswick, the legislature has not chosen to create a presumption that access is revoked. In practice, and in accordance withthe judgment of the Court of Appeal in Re M.A.G., supra, at pp. 451-52: "It will only be in rare situations that access will be ordered

and it may be that in these rare situations it is not appropriate for that child to be placed for adoption." (Emphasis added.) Thisstatement of the applicable law seems to me to be entirely accurate, and is consistent with what was said by Esson J.A. in Superintendentof Family and Child Service v. D.S. (1985), (BC CA), 46 R.F.L. (2d) 225 (B.C.C.A.). (iii) Preservation of family ties: a factor 46 While a liberal

interpretation of the Act is called for, to protect the integrity of the family and avert family breakdown (s. 2), thebest interests of the child must remain the primary consideration. 47 The Ontario Act is regarded as one of the least interventionist, in that it emphasizes the importance of preserving the family unit.This Court has held, however, that preserving the family unit plays an important role only if it is in the best interests of the child(Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), supra).

This Court has also held on numerous occasions thatpursuing and protecting the best interests of the child must take precedence over the wishes and interests of the parent (King v.Low, (SCC), [1985] 1 S.C.R. 87; Young v. Young, (SCC), [1993] 4 S.C.R. 3). In Catholic Children'sAid Society of Metropolitan Toronto, supra, at p. 191, L'Heureux-Dubé J. stated: "Thus, the value of maintaining a family unit intact isevaluated in contemplation of what is best for the child, rather than for the parent.

In order to respect the wording as well as the spirit ofthe Act, it is crucial that this child-centred focus not be lost". 48 I conclude that while preserving emotional ties is one of the elements of the definition of the best interests of the child (s. 1(d)), itwill only operate in favour of granting access if access is in the best interests of the child, having regard to all the other factors. 49 Thus, if there is an emotional bond between the child and the parent, it should be preserved, as long as it is not contrary to the otherinterests of the child such as security or psychological health (New Brunswick (Minister of Health and Community Services) v.

B.D.(1994), (NB KB), 145 N.B.R. (2d) 14 (Q.B.)). On the other hand, a child and a parent who are not attached to eachother may not be granted access if the effect of doing so would be to disturb the child (New Brunswick (Minister of Health andCommunity Services) v. S.G. (1997), (NB KB), 193 N.B.R. (2d) 274 (Q.B.)). The child's wishes, where the child iscapable of expressing them, is an important consideration (ss. 6(1) and 45(3)(

c) of the Act). (iv) Adoption as a priority 50 If adoption is more important than access for the welfare of the child and would be jeopardized if a right of access were exercised,access should not be granted (New Brunswick (Minister of Health and Community Services) v. R.N. (1997), (NBKB), 194 N.B.R. (2d) 204 (Q.B.)). In other words, the courts must not allow the parents to "sabotage" an adoption that would bebeneficial for the child (Re S.G.N., [1994] A.J. No. 946 (QL) (Prov. Ct.)). In New Brunswick (Minister of Health and CommunityServices) v. D. (K.), [1991] N.B.J.

No. 222 (QL) (Q.B.), the child was severely disabled, both physically and mentally. In view of theevidence that the mother was interfering inappropriately in the foster family's life and was thereby reducing the already slim chances offinding adoptive parents, Athey J. refused to grant access (see also: Children's Aid Society of the District of Thunder Bay v. T.T., [1992]O.J. No. 2975 (QL) (Prov. Div.), and Children's Aid Society of the Durham Region v. W. (C.), (ON SC), [1991] O.J.No. 552 (QL) (Gen. Div.)).

Because of the urgent need to find the child an adoptive home, access was denied to the extent it was undulydelaying the adoption process (see: Nova Scotia (Minister of Community Services) v. D.L.C. (1995), 1995 NSCA 44 , 138N.S.R. (2d) 241 (C.A.)). (

v) Interests and needs of the child to take priority 51 The decision as to whether or not to grant access is a delicate exercise which requires that the judge weigh the various componentsof the best interests of the child. It is up to the judge to determine which of the child's interests and needs take priority (see NewBrunswick (Minister of Health and Community Services) v. D.T.P., [1995] N.B.J. No. 576 (QL) (Q.B.), at para. 41). A child's emotionalstability is of prime importance.

If the child is unduly disturbed by access, it is generally not granted (see New Brunswick (Minister ofHealth and Community Services) v. K.E.B. (1991), (NB KB), 117 N.B.R. (2d) 229 (Q.B.), at p. 239; NewBrunswick (Minister of Health and Community Services) v. P.P. (1990), (NB KB), 117 N.B.R. (2d) 222 (Q.B.)).

52 The evidence as to how access has been exercised is particularly relevant, since it relates both to the attitude of the parent and to theeffects of the visits on the child. Every parent must place his or her child's interests ahead of the parent's own. The parent's inability to doso, and the harm suffered by the child, are factors that may result in access being prohibited. This will be the case, for example, wherethe parent is violent, manipulative, unstable or unable to control his or her emotions.

With regard to the effects of the visits on the child,signs such as sadness, anxiety, regression, the reappearance or exacerbation of behavioural problems, mood and nightmares mayevidence harm. (See: New Brunswick (Minister of Health and Community Services) v. R.P.S., [1993] N.B.J. No. 96 (QL) (Q.B.); NewBrunswick (Minister of Health and Community Services) v. K.E.B., supra, at p. 235; Director of Child Welfare (Alta.) v. A.C. (1991), (AB CJ), 121 A.R. 301 (Prov.

Ct.).) In short, the parents must be worthy of being "visitors in their child's life", in thewords of Judge Cook-Stanhope in Alberta (Director of Child Welfare) v. L.L.O., [1996] A.J. No. 660 (QL) (Prov. Ct.), at para. 94.” [189] I am therefore armed with section 47(2) and section 3(2) of the Act and the comments of Chief Justice MacDonald in K.T. that‘a special circumstances’ under

Section 47 (2 )(

d) may include a permanent placement with a family member, with a view to adoption bythat family member, but involving some ongoing contact with the natural parent that was satisfactory to the adopting parents and whichwould not deter the adoption. [190] I conclude section 47(2) is the starting point.

I approach this as unfettered in compliance with the substantive law requires and Ido not exclude consideration of the best interests test as defined in section 3(2). [191] The most persuasive authority is the consistent theme throughout that best interests, as defined in section 3(2) of the Act, is theultimate test. [192] It would create an inconsistency to interpret Chief Justice MacDonald’s decision in a restrictive fashion such that a total analysisof the best interests would be ignored or, as suggested in T.H., delayed.

Process [193] Following the directions of the Court of Appeal on November 23rd, 2011, on January 16, 2012. the parties and their counselappeared for a pre trial administrative conference before the Family Division. [194] The parties and their counsel were given a choice to have the access issue concluded without further evidence or to callevidence. They unanimously chose the latter. [195] While the Court of Appeal spoke only to the mother’s right to be heard, the father chose to file an affidavit as well. All partieswere represented by counsel.

No one objected to the father’s involvement. [196] The matter was adjourned to March 12, 2012. Counsel were to advise the court as to their preferred method of proceeding.

Themother, L.I., was directed to file an updated affidavit by January 31, 2012, providing information to the court regarding any contact shehas had with the children and/or the foster parents since March 16, 2012, the last day evidence was given. [197] The father, B.L., was to file his affidavit by February 15, 2012. [198] The matter was scheduled for hearing on May 15, 2012. [199] The mother filed an unsworn Affidavit on January 4th which contained no new information. Her final filed undated Affidavitwas sent to the court on June 22, 2012. She executed this in court.

This Affidavit simply provided a list of workshops the mother hadattended . [200] The father provided a Plan of Care dated June 29, 2012.

[201] On March 12, 2012, all parties except counsel for the mother were present; although the mother ’ s counsel did advise in advance she was agreeable to an adjournment. [202] The case was further adjourned to April 30, 2012. [203] The matter reconvened on April 30, 2012. The Agency advised they opposed access. The father ’ s counsel did not have instructions. The mother ’ s counsel acknowledged that she understood that more work had to be done in this matter before it could be presented to the court. [204] Again on May 15, 2012 all parties agreed it was best to have more information before the court.

The court was informed that the older child was seeing a psychologist. The Agency wanted some time to allow the psychologist to meet with the child. The matter was adjourned. [205] Finally, the matter came before the court on July 5, 2012 , for hearing. Both of the parents filed very brief Affidavits. As well, I received an updated Affidavit from the Agency. No cross examination of these witnesses occurred. [206] I heard from the foster mother who was cross examined by both parents ’ counsel. [207] The child ’ s psychologist, Dr. Wolfe, did not testify.

Her task was to assess the oldest child ’ s behavioural issues, not the access issue. Access Consideration [208] In the Final Disposition Decision dated April 27, 2011, the court outlined the facts that successfully supported the request for no access. The reasons lie within the evidence before the court at first instance. A

summary is also contained in the Court of Appeal Decision. I will not repeat those facts herein. [209] It was abundantly clear that these two parents loved their children and the children loved the parents. [210] In both the permanent care hearing and the post appeal access hearing, the mother submitted the Report of the access facilitator Laurie Coffin, dated August 27, 2012 (exhibit 2). [211] This Report confirmed that during supervised visits with the children, the parents acted appropriately. There was a good relationship between the parents and the children.

The parents were attentive and the children were very happy with visits with their parents. [212] It was obvious in the access reports and other evidence that a strong bond of attachment existed between the two parents and the children. [213] None of the access visits were terminated as a result of inappropriate parental behaviour. [214] The parents rights were terminated because in the history of this file the evidence confirmed that absent supervision the parents have not been able to exercise the responsibilities of parent in a consistent and safe manner such that the needs of the children could be

adequately addressed. [215] Significant time had elapsed between the “ taking into care ” and the final Decision during which time the parents were coaxed to participate in services that would address the issues of domestic violence, life style issues and the misuse of alcohol and drugs. [216] It was clear to me that the Mi ’ kmaw Agency worked towards a return of the children to their parents care as their first priority . [217] The children were, in fact, returned briefly and then reapprehended. [218] It was also clear that this particular agency held on to this objective until the very last moment when it became clear the parents were unable and unwilling to address the risks in a timely fashion within the time limitations imposed by the

section 45 of the Act and case precedent. [219] The children were removed from the parents because there was a substantial risk of harm to them if they continued in their parents care. [220] That finding never changed. Parental Capacity Assessment [221] I have had the benefit of rereading the

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