W.M. v. Nova Scotia (Community Services), 2016 NSSC 59

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: W.M. v. Nova Scotia (Community Services), 2016 NSSC 59 Date: 20160212 Docket: SFSNCFSA93322 R egistry: Sydney, N.S. Between: WM and DM, Sr. Applicants v. Minister of Community Services, AW, DM, Jr. and NM Respondents To Publishers of this case: Please take note that Section 94(1) of the Children and Family Services Act applies and may require editing of this Judgment or its headings before publication. Section 94(1) provides: Prohibition on Publication 1. 94

(1) 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 the subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or a relative of the child. Judge: The Honourable Justice Robert M.

Gregan Heard: January 27, 2016; February 11, 2016 and February 12, 2016, in Sydney, Nova Scotia Written Release: March 31, 2016 Counsel: Robert Moores, Counsel for the Applicants Tara MacSween, Counsel for the Respondent, MCS Coline Morrow, Counsel for the Respondent, AW NM, Respondent, Self-Represented DM, Jr., Respondent, Self-Represented By the Court: [ 1 ] This is my decision on the application for standing by WM and DM, Sr. under

Section 36 of the Children and Family Services Act and

Section 18 of the Maintenance and Custody Act . [ 2 ] WM and DM, Sr. are the biological grandparents of K, age eight; JC, who will be two in September and H, who will be three in March, and with whom the grandparents have a familiar relationship. They ask this court to grant them standing in these proceedings, pursuant to

Section 36 of the Children and Family Services Act and pursuant to Section 18(2) of the Maintenance and Custody Act . In WM and DM, Sr.’s view, they love their grandchildren and also take the position that all three children should be in their care. Of course, while they seek standing, ultimately the question for the court is, “What is in the best interests of these three children?” In other words, it is about K, JC and H and what is best for them. [ 3 ] I would now like to outline the history of these proceedings.

History [ 4 ] These three children were taken into care on October 6, 2014, as a result of the child, H, sustaining life-threatening injuries, that required treatment at the IWK in Halifax. The Notice of Taking Into Care was filed on October 10, 2014. There was a lengthy investigation which involved a number of medical reports from the IWK. In March, 2015, DM, Jr. was charged with assault causing bodily harm and aggravated assault in relation to H. Photos of the injuries to H, alleged to have been inflicted at the hands of DM, Jr., have been marked as Exhibit #4 in these proceedings.

They are very disturbing photos. [ 5 ] DM, Jr.’s criminal charges are still before the court and he is on an Undertaking which prohibits him from having contact with any of the three children or with the Respondent, NM. He also continues to reside with his parents who are his sureties in the criminal matters and the Applicants in this proceeding. The child, H, is currently placed in a foster home in Halifax and the court has been advised that H continues to be followed by medical professionals for treatment, which includes permanent brain damage.

The child, K, spent several months at Chisholm house in Halifax and recently returned to a kinship foster home in December of 2015. The Minister has documented a number of behavioural concerns that led to K spending time in Chisholm house and the Minister asserts K has been diagnosed with, and is being treated for, PTSD – that evidence was outlined in the Affidavit of Ms. Mikkelsen, Exhibit #9 , as well as referred to in the Affidavit of Ms. Donovan, child protection workers for the Respondent, Minister of Community Services. [ 6 ] JC has been placed in an Agency foster home.

Fortunately, there have not been any physical or behavioural concerns that have been documented by the Minister at this stage of the proceedings. [ 7 ] There have been numerous court appearances before this court following the Notice of Taking Into Care.

From a review of the court running file, it would appear that the Applicants, WM and DM, Sr., were present for a number of the court appearance and although not a party to the proceedings, from their evidence in this application, reviewed much of the documents/disclosure in the possession of their son DM, Jr., who resides with them and is a Respondent in these proceedings. [ 8 ] The court running file notes also indicate that the protection findings in this matter were adjourned a number of times at the request of counsel as a result of delays in medical disclosure surrounding H’s injuries and the reports from the I.W.K. [ 9 ] On March 3, 2015 a Disposition Hearing was held in this matter.

At the request of counsel, there was consent to a finding pursuant to Section 22(2)(

b) of the Children and Family Services Act (and a finding under Section 22(2)(

a) of the Children and Family Services Act was deferred). This was confirmed at court appearances and review orders before Justice M. Clare MacLellan on April 27 th and May 22 nd . At the May 22 nd appearance, MacLellan, J., indicated that the hearing with respect to the Respondents, DM, Jr. and NM and the allegations pursuant to Section 22(2)(

a) should be heard. Counsel for all parties declined and consented to a deferral of this issue beyond the timelines. [ 10 ] The issue was once again raised by the court on May 26 th , 2015 and a number of days were set aside for the Section 22(2)(

a) hearing, commencing August 21 st, 2015. The matter came before me on August 21 st . At that time, the court was advised that the parties were not prepared to proceed with a Protection Hearing on the Section 22(2)(

a) and instead all parties were consenting to a Disposition Order and the Minister was seeking permanent care and custody and requesting that the Section 22(2)(

a) be combined with the permanent care hearing and all counsel agreed to have the matters heard together. [ 11 ] The court was also advised at that court appearance that WM and DM, Sr. were seeking legal aid and considering making an application for standing. [ 12 ] With respect to the August 21 st appearance, the net result is that there has not been a finding by this court on the allegations pursuant to Section 22(2)(

a) nor a criminal finding with respect to DM, Jr. On September 21, 2015, there was a motion that was granted permitting counsel for DM, Jr. and NM to withdraw as counsel citing a breakdown of solicitor/client relationship. Since September 21 st and until the commencement of this hearing on January 27 th, 2016, neither NM or DM, Jr. were present. They appeared at the January 27 th hearing without counsel and chose to observe but not participate in these proceedings. Both NM and DM, Jr. advised they supported the paternal grandparents’ application seeking standing. [ 13 ] The Minister and Mr.

Moores (the Applicants’ counsel) and Ms. Morrow (and her client) appeared on November 16 th and the date for the standing hearing was set for January 27 th . The court ordered disclosure to be provided by December 4 th .

The Respondents, NM and DM, Jr., were not present but were ordered to be served with notice of the standing application and hearing and, as indicated, they appeared on the 27 th to observe, but not participate. [ 14 ] Finally, before delving into the evidence from this hearing, for the purposes of completing the record, I note that at the court appearance on August 21 st , 2015, the court was advised that the Minister was in the process of drafting a plan and it would be provided the following week.

The Agency Plan of Care was not filed with this court until January 27 th , 2016, just prior to the hearing, when the court requested a copy of the plan from the Minister. The plan was provided and filed with the court on January 27 th , 2016. It is dated August 25 th , 2015. I would have more to say about this in my decision. [ 15 ] The permanent care hearing in this matter is scheduled for seven days, with the matter commencing on March 7, 2016. [ 16 ] The issue before the court is, “W hether or not WM and DM, Sr., be granted standing under

Section 36 of the Children and Family Services Act and

Section 18 of the Maintenance and Custody Act? Analysis [ 17 ] I will begin my analysis by saying that the appropriate test to be applied in determining whether or not a non-party should be granted standing was recently referred to by Forgeron, J. in Minister of Community Services v. M.S., S.A. and S.F. 2015 NSSC 307 ,

affirmed by our Nova Scotia Court of Appeal in 2016 NSCA 4 . [ 18 ] At a Pre-Trial Conference in this proceeding, counsel was referred to Minister of Community Services v. M.S., S.A. and S.F. and the remarks of Forgeron, J. In the aforementioned case, Justice Forgeron said as follows, at paragraphs 19 to 22: 19 Section 36 (1) (

f) of the CFSA provides the court with the jurisdiction to add "any other person" as a party "at any stage in the proceeding pursuant to the Family Court Rules ." The burden is on the person making the application. 20 In Nova Scotia (Minister of Community Services) v. S.S. , 2012 NSSC 293 , Jollimore, J., after undertaking a case law analysis, reviewed the factors to be considered when faced with a contested standing motion.

These factors are as follows: ▪ Whether the non-party seeking standing has a direct interest in the proceeding's subject matter. ▪ Whether the non-party seeking standing has a familial, or some other, relationship with the children. ▪ Whether there is a reasonable possibility, when compared to other alternatives, that the children's welfare may be enhanced by granting the non-party standing and hearing the relevant evidence. 21 Further, the CFSA contemplates family placement in appropriate circumstances, see for example ss. 42(1)(

c) and 42(3). These provisions, however, must always be reviewed from the perspective of the best interests of the child as stated in ss. 2(2) and 3(2) of the Act , and in Family and Children's Services of King's County v. B.D. , [1999] N.S.J. No. 220 (C.A.) . 22 When responding to a family placement request, the court must be responsive to reasonable alternatives, where such placements are "sound, sensible, workable, well-conceived and have a basis in fact": Children's Aid Society of Halifax v. S.M.R. and B. 2001 NSCA 99 at par. 29 .

In addition, the family member advocating a competing plan must produce cogent evidence of the plan's viability, as noted in paras. 53 and 54, which provide as follows: ▪ [53] The agency is not required to investigate each and every family placement proposal. The burden of persuasion is upon those advocating a competing plan to advance the most compelling and sensible alternative they can muster. ▪ [54] There is an obligation upon the person advocating a competing plan to present some cogent evidence with respect to it.

In that way, the merits and viability of the proposal will have some foundation in fact which might then be adequately assessed by the trial judge. Should time permit and circumstances warrant, it may well be that the plan put forward as a worthwhile family placement option will require further investigation, perhaps in some cases a complete home study report.

However, not every possible placement alternative will require such a response. [ 19 ] As mentioned, that test was reviewed and confirmed by the Nova Scotia Court of Appeal, which I will not quote at length, but after reviewing the three factors that Justice Forgeron set out in SS, Bryson, J.A., for the Court of Appeal, then noted after citing that test from SS, said as follows at the end of paragraph 6: ▪ T his test is not new. It received favourable comment in R.B. v. Children's Aid Society , 2003 NSCA 49 at para 30 . [ 20 ] The case that Bryson, J.A. referred to was R.B. v.

Children’s Aid Society of Halifax and S.F. , [2003] N.S.J. No. 147 . There, at paragraph 30, the court said as follows: ▪ [30] The presentation of a reasonable alternative by a family member as an appropriate consideration in granting party status and leave was considered appropriate by the courts in applications made prior to a permanent care order. See Minister of Community Services v. T.B. [1994] N.S.J. No. 649 (Quicklaw) (F.C.) ; Children's Aid Society of Halifax v. T.C. (1996), 152 N.S.R. (2d) 277 ; [1996] N.S.J. No. 597 (Quicklaw) (F.C.) .

These cases were relied on by the trial judge, erroneously in my view, in addressing the entirely different situation which presented itself to him. [ 21 ] The case of the T.B. v. Children’s Aid Society of Halifax 2001 NSCA 99 was provided to the court by counsel this morning. [ 22 ] In this application for standing, counsel for both the Minister and AW conceded that the applicants, WM and DM, Sr., satisfied the first two prongs of the test as cited by Justice Jollimore in Minister of Community Services v.

S.S. and that for the purposes of this hearing, the inquiries should be on the third prong, and that is “whether there is a reasonable possibility when compared to other alternatives that the children’s welfare may be enhanced by granting the non-party standing and hearing the relevant evidence”. It is clear from the passages I have quoted and the case authorities I have cited, that the burden is on the Applicants, WM and DM, Sr., on a balance of probabilities that their plan is viable and will enhance the welfare of these children.

Before doing so, however, the court must pause to make a comment. [ 23 ] As pointed out, while the emphasis of this hearing is on the plan of the applicant, the phraseology when compared to other alternatives used in Minister of Community v. M.S. , in my view, requires a limited weighing of the plan put forward by the Minister. As referred to in my decision, it is concerning that the plan for the Minister was not filed until January 27 th at the request of the court.

It is also concerning that it was not presented in August or September when the Respondents still had counsel and could have explored it more fully. [ 24 ] On the other hand, as was set out in both Minister of Community Services v. M.S. and S.A. and R.B. v. Children’s Aid

Society of Halifax and S.F. and T.B. v. Children’s Aid Society of Halifax, the Court of Appeal reminds us, the Agency is not required to investigate each and every family placement and not every possible placement alternative would require such a response. Again, I would refer counsel to R.B. , paragraph 30 , as well as T.B. S., paragraphs 30, 31 and 54 . [ 25 ] This is, perhaps, a place to start with the plan of Applicants. WM and DM, Sr., say they do not believe that there son inflicted the injuries on H. as alleged.

They say, however, that if the court orders it, they will no longer have DM, Jr. stay with them, even if it means he will have to go to jail. [ 26 ] In my view, such an approach does not put the interest of their grandchildren first. By continuing to put their son’s interests ahead of the grandchildren, the Applicants have made it impossible for the Minister to consider their placement – their plan as a viable alternative. The Applicants, by having their son live in their home with them as sureties, have lost precious time.

They were, in fact, told by the Minister that they could not be considered for further access or have a plan considered as long as DM, Jr., remained in their home. Whether they believe their son with respect to the yet unproven allegations is one thing. What they have done, thus far, and their actions in delaying putting a plan together is another. [ 27 ] In addition, the court has a number of other concerns listening to the evidence of the Applicants. WM [ 28 ] I listened carefully to the evidence of WM. I have no doubt she loves her grandchildren. However, love is not the issue.

The issue is, what is in the best interests of these children - the ability to meet their needs and to adequately protect them. WM, in her testimony, freely admitted that her son, DM, Jr. was a very difficult child. There were a number of vicious, serious, violent altercations that DM, Jr. unleashed upon his brother, C, school mates, and WM, herself. Some of these resulted in criminal charges, expulsion from school and DM, Jr., spending some time in the Shelburne Youth Facility. [ 29 ] I have no doubt that at the time it were occurring, DM, Sr. and WM did all they could to get help for DM, Jr.

I also have no doubt that at the time, they viewed his actions as very serious matters. [ 30 ] The difficulty for the court was the responses that WM gave to the court and her views today on DM, Jr.’s behaviour. In cross- examination she could not recall being clawed in the face by DM, Jr. She could not recall her other son, C, being struck in the face by a chain by DM, Jr.

She could not recall DM, Jr’s assaultive behaviour towards other students. [ 31 ] Of greater concern, when WM’s memory was refreshed from the Minister’s file notes, she did recall the items, but when asked by counsel for the Minister if she viewed these activities as violent or serious, WM’s response was, “Somewhat”. Similarly, when asked about an incident in 2010 when DM, Sr. and DM, Jr. got into a physical fight in the home with the child, K, present and when C’s (their son’

s) girlfriend was assaulted, WM, in her evidence, downplayed the seriousness of the event – again describing it as, “Somewhat serious”. This, despite the fact that K, a child who is the subject of this application, was present and allegedly the fight began because both applicants thought DM, Jr. had thrown K onto the bed in her room. [ 32 ] In my view, such evidence shows a serious lack of insight on the part of WM as to how to adequately protect these children. Another example of WM’s extremely poor judgment during an access visit in April of 2015. A

summary of the visit, through the access facilitator’s notes was introduced as Exhibit #3 . Prior to the notes being marked as an exhibit, WM was asked if she ever had discussions with K about sexualized things that K was saying about other people. WM denied every saying such things to K.

Yet, Exhibit #3 clearly recorded that K was confronted by WM about saying and doing things that WM felt K should not be saying or doing – this, despite the fact, as acknowledged by WM on the witness stand, she had been admonished before this not to do so. [ 33 ] According to Exhibit #3 , which was not contradicted, not only did she confront K, WM also accused K of lying.

This is a child who is in care and who is, the court is being told, undergoing counselling for post-traumatic stress disorder. [ 34 ] When asked why she would say these things, the witness said in a low voice, “I did say it and couldn’t help myself”. In addition, the notes also show that there were comments on the school K was going to and when she was placed with Mr. and Mrs. L., and that K was also questioned about this during the access visit. [ 35 ] WM was also shown Exhibit #4 , the photos of H.

When asked whether she had seen those injuries, WM’s response was that she saw H almost every day up to the day H was taken to the hospital on October 6, 2014 and she had not seen the injuries. It was WM’s view that the injuries were caused by the Respondent, NM’s father, and DM, Jr. was “being set up”.

When it was suggested that NM’s father saw the child or had access to H from September 15 th to 22 nd , 2014, and the hospital admission was October 6 th , WM had no explanation as to how NM’s father could have been the one to cause the injuries but she reiterated that it was “a set up”. [ 36 ] When shown the photos in Exhibit#4 , WM said that she did not see the bruises on the face or chin (photo 9 of Exhibit #4 ) , and still believed that it may have been NM’s father, MM. [ 37 ] Towards the end of the evidence, WM was asked if she would agree that K’s behaviours were very similar to her son, DM, Jr.’s when growing up.

There was that word again, “somewhat”, and WM was surprised by the principal’s categorization of K’s difficult behaviours. [ 38 ] Finally, when asked about K’s placement by both counsel for the Minister and AW, WM acknowledged that K’s present placement was a good one and she was happy but, regardless, wanted all three children to be with her and her husband. Such an approach, in my view, puts her own wishes and wants ahead of the children.

DM, Sr. [ 39 ] I also listened to the evidence of DM, Sr., and I will highlight his evidence. I found that he gave his evidence in a frank and straight-forward, unsophisticated manner. He was candid about DM, Jr.’s difficulties and acknowledged that they were serious. He also acknowledged his own conviction for assaulting a principal, although he qualified it as being, and thought what he viewed, as self- defence. I accept his evidence that he has indeed become better when dealing with authorities and in terms of managing his own behaviours.

I find, however, there were a number of shortcomings regarding his plan with WM, and as was pointed out by Mr. Moores, his plan is inextricably linked with that of WM. [ 40 ] For example, DM, Sr., acknowledged WM as being emotional and inappropriate and him having an inability to assist her with those issues, and that they could be challenging to caregivers.

He acknowledged in cross-examination that she may or may not be able to deal well with authorities. [ 41 ] It was my impression from reviewing the evidence of DM, Sr., that the parenting of DM, Jr., was that he was not the one primarily parenting DM, Jr., and he noted that when he was parenting DM, Jr., he was able to handle DM, Jr., but that WM could not. From the evidence, it appeared that DM, Jr. had a lot of difficulties which, presumably, occurred when WM was primarily looking after DM, Jr. [ 42 ] Similarly, with respect to K, I have no doubt that he has spent time with K and has been a positive influence.

He described going to the park, going to McDonald’s, doing crafts and, by all accounts, he was appropriate with visits that were observed by the Minister.

That, however, is not parenting day-to-day, the needs and meeting the special needs in applying parenting skills - treating post- traumatic stress disorder or sexualized behaviours or brain damage – all of which, in this case, are so significant that the Agency has placed K and H in separate homes, to deal with these significant challenges, yet the plan of DM, Sr. and WM is to have all three children be with them. [ 43 ] I note as well, from the testimony of DM, Sr., that it is a very busy house. DM, Sr. works full-time, which again would suggest that WM would be the primary caregiver for the children.

As well, they have a grown son, C, who has lupus and relies heavily upon his parents, the Applicants. DM, Sr., also testified with respect to the 2010 incident, and that is, that all parties were unable to maintain control over DM, Jr., during the altercation with the child, K. When it came to protecting K, DM, Sr. testified that if an Order was put in place that DM, Jr. not have any contact with the children, he would contact the police “lickety-split”. In my view, given what has occurred, I have concerns whether or not DM, Sr. would be able to do so.

Decision [ 44 ] In my view, a review of the evidence sets out a number of concerns which can be summarized as follows: • Placing the children in the care of the Applicants will not enhance these children’s lives because it is clear to me that, (

a) given their lack of insight into the violence and tension in their home and, (

b) in particular, as to the actions of their son, DM, Jr., they do not have the ability to protect these children; • Because of the lack of insight, they do not have the ability to care for these children, H and K, in particular, who have special needs. WM and DM, Sr. have failed to advance a plan because they continue to have their son remain in their home. With respect to K, knowing she has post-traumatic stress disorder, WM continued to have inappropriate conversations with her; • The other concern is the timing of this application for standing. This matter is scheduled for a permanent care hearing in March.

Under the Children and Family Services Act , the court must come to a determination at the completion of that hearing, with very few options – award permanent care to the Minister or terminate the proceedings. Given the challenges that face these children (and H and K, in particular), they need continued intervention and support well beyond what the applicants can provide. The court has no authority to expand the deadlines that would allow the children to be placed in the care of the Applicants under the supervision of the Minister.

However, given the short-comings of the Applicants and concerns identified, in my view, the Applicants would not have the ability to parent these children under a supervision order. The timelines also do not permit it, as I say and they do not permit such an experiment and any ability of the Minister to consider such a request is lost due to the actions of WM and DM, Sr., choosing their son over their children.

Because their son was residing with them while facing the charges regarding H, they could not be considered as a placement and have lost, as I have indicated, precious time. [ 45 ] These concerns that I have expressed, have also been outlined by case authorities. I have already referred to Minister of Community Services v. M.S., S.A. and S.F . Justice Forgeron found that given the instability of the grandparent seeking a placement, it would not only not be enhanced, but it would also result in the children being placed at risk.

In this case, I adopt that approach given the inability to protect and meet the children’s name. It would place K, H and JC at risk. [ 46 ] Similarly, in Children’s Aid Society of Cape Breton-Victoria v. L.D. and B.S. , 2010 NSSC 61 , the child subject to the proceedings was apprehended due to ongoing injuries to the infant child resulting in micro fractures to the tibia and patella of the infant child. The Respondent parents denied causing the injuries. JS, the paternal grandmother, at the disposition phase, sought standing. A

summary of the position of JS is in that case regarding injuries to the grandchild is found at paragraph 54: “She, meaning JS, the person seeking standing, has heard him (her biological son), the father of the child, get angry to the Agency but

does not believe he has an anger problem or an addiction problem at this time. While she does not believe the Respondents harmed their child, D, she will agree to follow any conditions in a court order which would restrict contact between the Respondents and S. She has visited S on occasions with the Respondents, but knows little about her needs or development.” [ 47 ] In declining to grant standing to the grandmother, Wilson J. stated the following at paragraph 62. 62 I find that is not possible to place the child, S., with her paternal grandmother, J.S.

Although I find J.S. is well-intentioned and will not personally harm S., I agree with submission of counsel for the Agency that she is not in the position to provide long-term stable care for S., in which the child's physical needs would be met. I also find that it is unlikely she will be able to provide long-term care for S. on her own, without the assistance of other family members. S. requires a great deal of care.

While she does not have any special needs, her overall level of development is delayed, there is a concern about her vision, she has difficulty breathing on occasion, and requires regular physiotherapy and ongoing medication. I find J.S. would not be able to assure the child's safety since she does not believe the Respondents were responsible for the harm suffered by D. and supported the return of the child to the Respondents care.

Nor do I believe she would be able to resist the demands of B.S. and L.D. to visit with and care for their daughter. [ 48 ] In my view, given the concerns that I have already outlined in reviewing the evidence here, those same concerns would apply with respect to WM and DM, Sr. I do find that WM and DM, Sr. would not be able to resist the request of DM, Jr., to visit with his daughter, as evidenced by the 2010 incident I have already referred to.

The inability to control DM, Jr., when he was younger is also a factor, as well as the inappropriate discussions that I have referred to between WM and the child K, that are referred to in the access facilitator’s notes. All of which lead to the conclusion that the Applicants cannot and will not protect the children adequately from the Respondent, DM, Jr. [ 49 ] This court also has concerns, as I’ve mentioned, regarding the timing of the Applicant’s standing application, which has also been addressed in the case law.

Again, in the L.D. case that I just cited, and if I have not said it, the citation for that is 2010 NSSC 61 , there Wilson, J. at paragraph 55 of the decision sited section 42(4) of the Children and Family Services Act , where he stated: Section 42(4) provides:

(4) The court shall not make an order for permanent care and custody pursuant to clause (

f) of subsection (1), unless the court is satisfied that the circumstances justifying the order are unlikely to change within a reasonably foreseeable time not exceeding the maximum time limits, based upon the age of the child, set out in subsection (1) of

Section 45, so that the child can be returned to the parent or guardian. [ 50 ] Wilson, J. then goes on to say at paragraph 56: 56 The time-limits pursuant to the Legislation have expired and the Court must either place the child in the permanent care and custody of the Agency or dismiss the proceedings and return the child to the care of the Respondents, or L.D. alone. [ 51 ] Similarly, the court also dealt with this issue of timing on the standing application in Mi’kmaw Family and Children’s Services v. L.M.I., 2013 NSJ 674 .

There the Respondent’s mother, a sibling-sister or aunt to the children, applied for leave and standing for custody. The application was brought following a disposition hearing after the Respondents had consented to an order for permanent care. In considering the aunt’s application for standing, Beaton, J. stated as follows, at paragraph 42 (there she reviewed the test in (B.)R. v.

Children’s Aid Society of Halifax , 2003, NSCA 49 , which I have already referred to and she highlighted the quote, which indicated: 42 18 ... the test for permitting standing and leave to one who is not a party and without prior involvement in the proceedings is more stringent than the “reasonable alternative test” . [ 52 ] At paragraph 43, Beaton J. said: 43 The Family Member must persuade this Court compelling circumstances exist that present a reasonable possibility that the welfare of the Child might be enhanced by granting leave to consider the possibility of the Family Member assuming care of the Child. [ 53 ] And at paragraph 44: 44 I accept the evidence of the Agency to the effect that this continuation of its position has not been merely rote, but rather was maintained after successive risk conferences identified no reasonable alternative was available. [ 54 ] And at paragraph 45: 45 Counsel for the Family Member likened this to the situation that was before the Court in Children's Aid Society of Inverness/Richmond v.

C.S.L . [ 55 ] And at paragraph 48: 48 In my view, the circumstances in the instant case are very different. [Again, she’s referring to “different” than those in the Children’s Aid Society of Inverness/Richmond.] The Agency became aware of the Family Member's expression of interest to act as a temporary foster placement only, approximately one month prior to the disposition hearing on September 23, 2013.

The Family Member waited until October 15, 2013 to file her Application, only five and a half weeks prior to the hearing on November 25-26, 2013 which was identified as necessary on September 23 to allow the parties time to consider further the question of access for the Mother and her assertion that a family member wished to put forward a plan…The evidence does not lead me to conclude that in this case the Agency was remiss in its duty or the Agency failed to place the appropriate priority on family placement.

[ 56 ] And I would note parenthetically as here, the Minister could not consider the placement for the Applicants, WM and DM, Sr. until DM, Jr. was out of the home. [ 57 ] At paragraph 50, Justice Beaton continued: 50 In my view, the evidence also justifies concern as to whether the Family Member would be able to maintain respect for any court order that might impose conditions on the Mother.

Although the Family Member's intentions seem sincere, it remains very questionable whether the Family Member could resist pressure from the Mother, especially given the Mother's refusal to take a position regarding the Family Member's expressed intention to overrule the Mother if necessary, as discussed earlier herein.

Admitted breaches of Agency instructions also create concern about the Family Member's ability to comply with any conditions in the future. [ 58 ] In my view, those same concerns apply to the WM and DM, Sr. given my comments earlier. [ 59 ] And finally at the end of paragraph of 53, with regard to the timing of the application, Beaton J. stated: 53 The Application is, as characterized by counsel for the Agency, "a hurried attempt to prevent the adoption of the Child".

With respect, it is too little, too late in the timeline of the protracted litigation over the Child . [emphasis added] [ 60 ] And in my view, given the timing of this application, which is completed today, on February 12, 2016 with a protection hearing looming in March, to use the phraseology in L.M.I., “it is too little too late”. [ 61 ] Timelines were also considered, I just wish to point out as well, and were commented on in the M.S. case, the Court of Appeal’s review of Justice Forgeron’s decision in Minister of Community Services and M.S., S.A. and S.F. , there, Bryson, J.A. noted at paragraph 22: 22 The paramount consideration in any access of discretion involving the interests of children under the CFSA, the Act exorts a speedy process. [ 62 ] The court went on to quote from Justice Fichaud from C.O. v.

Nova Scotia Community Services, 2010 NSCA 83 at paragraph 20 , where Justice Fichaud says as follows: 20 When the litigation started, one child was an infant and the other a toddler. Now the younger is a toddler and the elder an active boy. Twenty months may be an eye blink to a commercial litigant, but cradle to playground is a stage of life to a child. Even the four months since the decision to be appealed is formatively significant. The CFSA commands that I examine the children's best interests through the lens of their sense of time.

A courtroom is a sorry nursery, and no aspect of the evidence suggests that longer litigation could elevate these children's interests. [ 63 ] And, finally, there is reference by the court to comments of Justice Cromwell at paragraph 26, citing from paragraph 11 of Justice Cromwell’s comments in Nova Scotia ( Minister of Community Services) v. S.E.L. 2002 NSCA 62 , at paragraph 11 : 11 The first is that, as in all proceedings under the Act, the best interests of the child or children are paramount.

It is not a matter of doing justice simply between the appellants and the respondent, but of serving the best interests of the child who is the subject of the proceedings. Secondly, the Act makes it clear that time limits are important so that the child's sense of time is respected. Nowhere in the Act is this more clear than with respect to appeals. [ 64 ] I cite those cases because it is very clear that the timing in this matter is important given the late stage at which the plan was advanced by the Applicants.

Conclusion [ 65 ] I do not find it is in the children’s best interests for all the reasons I’ve set out to grant standing and the risks that I have identified and, as such, the application of WM and DM, Sr. under the Children and Family Services Act ,

Section 36, is dismissed. As has been set out by counsel in their briefs, given that the CFSA proceeding is still ongoing, it is not appropriate for them to be granted standing under the Maintenance and Custody Act ,

Section 18, and I am, therefore, also declining to grant standing under that Act . ______________________________ Gregan, J.