P.H. v. Nova Scotia (Community Services), 2013 NSCA 83

Nova Scotia Court of Appeal Citation: P.H. v. Nova Scotia (Community Services) , 2013 NSCA 83 Date: 20130709 Docket: CA 411685 Registry: Halifax Between: P.H. Appellant v. Minister of Community Services and R.W. Respondents Restriction on Publication: 94(1) Children and Family Services Act Judge: The Honourable Justice David P.S. Farrar Appeal Heard: May 17, 2013 Subject: Family Law. Children & Family Services Act , S.N.S. 1994-95, c. 5 . Access after Permanent Care.

Summary: The appellant appeals from the trial judge’s denial of access after permanent care. The trial judge found that the child was a child in need of protection and ordered permanent care. She denied access to the mother because the evidence established that access would impair a potential adoption. The appellant appeals arguing that the trial judge failed to take into account the best interests of the child in failing to allow access. She also argued that this Court should reconsider two of its previous decisions on this issue.

Issues: Whether the trial judge erred in denying access to the mother once permanent care was ordered? Result: Appeal dismissed. The trial judge committed no error in failing to grant access. Her decision was consistent with the Children and Family Services Act and previous decisions of this Court. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 35 pages. Nova Scotia Court of Appeal Citation: P.H. v.

Nova Scotia (Community Services) , 2013 NSCA 83 Date: 20130709 Docket: CA 411685 Registry: Halifax Between: P.H. Appellant v. Minister of Community Services and R.W. Respondents Restriction on Publication: 94(1) Children and Family Services Act

Judges: Saunders, Beveridge and Farrar, JJ.A. Appeal Heard: May 17, 2013, in Halifax, Nova Scotia Held: Appeal dismissed, per reasons for judgment of Farrar, J.A.; Saunders and Beveridge, JJ.A. concurring. Counsel: Shelley Hounsell-Gray, for the appellant Peter C. McVey, for the respondent Minister of Community Services Respondent, R.W., not participating Restriction on publication: Pursuant to s. 94(1) Children and Family Services Act . 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: 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. Reasons for judgment: [ 1 ] The appellant, P.H.’s decade long involvement with children’s services in Ontario and Nova Scotia culminated with her daughter C. being placed in the permanent care and custody of the Nova Scotia Minister of Community Services with access being denied to Ms. H. [ 2 ] Ms.

H. appeals the disposition ruling and says that the trial judge erred by collapsing the time lines under s. 45(1) of the Children and Family Services Act , S.N.S. 1990, c. 5 and by failing to include a provision for access to C. in the order placing her in the permanent care and custody of the Minister. Ms. H. does not appeal the order that C. be placed in the permanent care and custody of the Minister. Background [ 3 ] To address the appellant’s arguments, a rather extensive review of the factual background is necessary. [ 4 ] C. was born in Ontario on June 21, 2002.

In her lifetime she has been the subject of four child protection proceedings in two provinces and has been taken into care five times. She has been in the continuous care and custody of the Minister of Community Services since September 22, 2010. [ 5 ] Ms. H. was both born and raised in Ontario. Both C. and her mother are Mohawk members of the Six Nations of the Grand River First Nation, located in the Province of Ontario near the city of Brantford.

The Children's Aid Society of Brantford (“CAS Brantford”) and its Native Services Branch have been involved with C., beginning at her birth and continuing for several years. C. lived the first four years of her life in Ontario, before her parents moved to Nova Scotia in 2006. [ 6 ] The respondent R.W. is C.’s father. He did not participate in the appeal. His participation in the proceedings below ended in February, 2012. At the time of trial his whereabouts were unknown. [ 7 ] Ms. H.’s initial involvement with the CAS Brantford occurred in 2001, prior to C.'s birth, as a result of a referral regarding Mr.

W.'s treatment of the appellant's 11 year old daughter, P., a child of a previous relationship (i.e., not the subject child in this proceeding). [ 8 ] In 2001-2002, leading up to C.'s birth, a series of child protection referrals were received by the CAS Brantford from Mr. W.'s probation officer, the local Native Centre and the hospital where C. was born. All reported Mr. W.'s behaviour as threatening and aggressive.

[ 9 ] Referrals continued to be received after C.'s birth, despite Mr. W.’s agreement to attend counseling. As a result, the appellant's older daughter, P., went to live with her grandmother in 2002, and never returned to Ms. H.'s care. [ 10 ] In July 2002, when C. was one month, Ms. H. and Mr. W. entered into a three month "Voluntary Service Agreement" with the CAS Brantford, which provided, among other things, they would not live together. [ 11 ] However, between August and December 2002, in the first six months of C.'s life, the police were called to the appellant's home on several occasions.

In December 2002, the appellant attempted suicide and was involuntarily confined in a psychiatric institution. [ 12 ] In January 2003, after the appellant's release from hospital, she ran one kilometre, without a coat and carrying the infant C., to the CAS Brantford office, complaining that Mr. W. had tried to grab her by the throat. As a result, further terms and conditions were imposed on the appellant by the Agency for her child's safety. [ 13 ] The appellant returned home, resumed care of C., and agreed not to allow Mr. W. to return to the family. However, in February 2003, after receiving a report that Mr.

W. was in the appellant's home, C. was taken into protective care by the CAS Brantford. She was then only seven months of age. This was the first child protection proceeding concerning C. [ 14 ] Approximately two months later, on March 26, 2003, the Ontario Court of Justice ordered that C. be returned to Ms. H.'s care under the supervision of the CAS Brantford, on conditions that included no access visits between C. and W. unless agreed to by the CAS Brantford. [ 15 ] On August 5, 2003, C. was again taken into protective care by the CAS Brantford because of new concerns regarding the appellant's mental health.

However, C. was returned to the appellant's care the next day, after child protection workers confirmed the appellant was fully engaged in mental health services and treatment. [ 16 ] Two weeks later, on August 20, 2003, C. was taken back into protective care by the CAS Brantford following conflict between Mr. W. and the appellant in C.'s presence. C. was then placed in foster care by the CAS Brantford where she remained for approximately one year. [ 17 ] In March, 2004, the Ontario Court of Justice ordered that C. remain in the care of the CAS Brantford. [ 18 ] On August 23, 2004, C. was returned to Ms.

H.'s care with assurances that she and Mr. W. had separated. On September 9, 2004, those assurances were placed in an "Agreed Statement of Facts and Consent to Final Order" signed by Ms. H. She admitted, and the Court found, that C. was a child who was at risk of emotional harm due to exposure to domestic violence. The child was returned with a long list of expectations including that Mr. W. not have contact with the child for six months.

The court proceeding ended; the full time available for the proceeding having been exhausted. [ 19 ] Seven weeks later, C. was again taken into care (for the fourth time) on October 1, 2004. This commenced the second child protection proceeding concerning C. The CAS Brantford received a referral from the Ontario income assistance/employment support program, reporting that C.'s parents were cohabitating. [ 20 ] Following a hearing C. was returned to the appellant's care. Mr. W. appeared to have left the province of Ontario for Nova Scotia. The CAS Brantford continued to supervise the child's placement with Ms.

H. [ 21 ] The second Ontario child protection proceeding ended on January 17, 2005, on the express condition that Mr. W. would have no access with C. for at least 5 years. The CAS Brantford continued to provide agency services to the appellant and C., focused on the impact of domestic violence on children and the cyclical nature of spousal abuse. The appellant was required to notify the CAS immediately should Mr. W. attempt to contact her for access, and not to cohabitate or live with Mr. W. [ 22 ] In April 2006, Ms. H. and C. moved to Sackville, Nova Scotia with Mr. W.

When interviewed by Nova Scotia child protection workers in June, 2006 Ms. H. denied any involvement with Mr. W. [ 23 ] In December 2006, the Sackville Agency received a referral that Mr. W. and Ms. H. were living together and multiple domestic conflicts had occurred. The appellant continued to deny she was even in contact with Mr. W., although this proved to be false. [ 24 ] The appellant later explained her failure to abide by the five year prohibition against allowing Mr.

W. to have access with C., by stating that she felt the Order of the Ontario Superior Court of Justice was "not fair", and she does what she feels is "right" for her and her family. [ 25 ] The Sackville Agency commenced a Child Protection Application in March, 2007, seeking and obtaining a Supervision Order in March 2007. This was the third child protection proceeding in C.'s less than five years of life. During the legal proceeding Mr. W. left the family home and agreed not to have unsupervised access to C. Ms. H. and Mr.

W. participated in services in varying degrees, including counseling for both regarding domestic violence. [ 26 ] By 2008, it appeared that Ms. H. and Mr. W. was making progress in addressing the child protection concerns. As a result, the Sackville Agency permitted Mr. W. to reside with Ms. H. and C. on the understanding that they would continue to engage in services and that there would be no domestic violence. The proceeding was then terminated. [ 27 ] The family relocated to the Truro area.

The Truro Agency became involved in February 2010, when they were called to C.'s school following a disturbance caused by Mr. W. They investigated the matter but took no action. [ 28 ] On September 18, 2010, however, Ms. H. made a "911 call", reporting a physical and verbal confrontation between herself and W. She sought to have Mr. W. removed from her home. He had left the home by the time the police arrived.

[ 29 ] Shortly after the September 18, 2010 incident, Ms. H. spoke with Krista Marsh, a child protection worker with the Truro Agency. She told Ms. Marsh that there was no need for the Agency to be involved because Mr. W. had left and she was getting a peace bond against him. [ 30 ] On or about September 21, 2010, C. was also interviewed. She presented as upset and crying, and said Mr. W. "scared" her. In light of Ms.

H.'s uncooperative approach and the parties' extensive child protection history in Brantford, Ontario and Sackville, Nova Scotia, the Truro Agency made the decision to take C. into care. [ 31 ] C. was taken into care on September 22, 2010, when she was eight, and remains in care.

This is the fifth time C. has been taken into care and the fourth such legal proceeding. [ 32 ] It was alleged by the Truro Agency that C. is a child at substantial risk of physical harm and substantial risk of emotional harm, and is further a child who has suffered physical or emotional harm caused by being exposed to repeated domestic violence. [ 33 ] An Interim Order was granted on September 29, 2010 placed C. in the temporary care and custody of the Agency. A similar Interim Order was granted on October 21, 2010. [ 34 ] A protection finding was made by the Court (with Ms.

H.'s consent) on December 7, 2010, finding C. to be a child at substantial risk of physical and emotional harm, and to have suffered physical or emotional harm caused by being exposed to repeated domestic violence ( s. 22(2) (b), (

g) and (

i) of the Children and Family Services Act ). [ 35 ] The initial Disposition Hearing was held on March 7, 2011. The Agency sought an Order for Temporary Care and Custody of the child, but with a plan to transition the child home to her mother's care. The Plan contained expectations for Ms. H., including participation in access, services, an updated parental capacity report, and the requirement that she maintain "a firm and unequivocal commitment to not resuming her relationship with the respondent, R.W.". [ 36 ] The Court approved the Agency's Plan of Care, which provided for reunification of Ms.

H. and C. within a ten week timeline, with no access to Mr. W. except as agreed by the Agency. The Court expressly adopted, at paragraph 2 of the first Disposition Order, the Agency's plan for access progression. That Plan was consented to by Ms. H. and provided as follows: It will be an essential condition of the progression of Ms. [H.]'s access that Ms. [H.] not permit any contact between the child and Mr. [W.] during any unsupervised access.

Information or circumstances indicating that Ms. [H.] has resumed contact with Mr. [W.] or may be intending to pursue a relationship with Mr. [W.] will impact negatively upon the progression of access and may well preclude the child being returned to Ms. [H.]'s day-to-day care. " [ 37 ] The Plan stated permanent care would be considered if progress was not made by temporary care and supervision. [ 38 ] The Agency then began to transition access between C. and her mother to Ms. H.'s home. [ 39 ] On March 31, 2011, during an access visit, Ms. H. told C. that Mr. W. was in the home.

She then took C. into a bedroom and refused to let the access supervisor come in. The access supervisor called the Agency. Agency workers and the police attended Ms. H.'s home. [ 40 ] Mr. W. was not, in fact, in the home. Ms. H. later claimed this was a "joke". After this incident, access was restricted to Agency facilities. [ 41 ] A Review Hearing was held on May 9, 2011. The Court ordered that Agency services continue, including an updated parental capacity assessment, supervised access, and individual counselling. [ 42 ] In July 2011, Ms. H. allowed Mr. W. to stay with her for approximately twelve days.

During this time, Mr. W. attended at the Agency offices while Ms. H. was visiting with C. and caused a disturbance. [ 43 ] On August 8, 2011, during a Review Hearing, the trial judge told Ms. H. what she had to do to have C. returned, and further told Ms. H. that the Court would set a hearing for "final disposition" if she did not start demonstrating progress in the areas of concern. [ 44 ] There was another Review Hearing on November 7, 2011, where a further Order for Temporary Care and Custody was sought and granted.

The same services and supervised access remained in place. [ 45 ] On January 5, 2012, another Review Hearing was held. Agency counsel advised the court, erroneously, that the maximum date for disposition review was March 7, 2012. The court was also informed that a Parental Capacity Update Assessment was underway with Dr. Susan Hastey, and Mr. W. had been referred for a psychiatric assessment by Dr. Risk Kronfli. At that time, the Agency requested a further Order for Temporary Care and Custody.

Finally, on that day, the court set February 23, 2012 as the date for commencing the disposition hearing. [ 46 ] On January 19, 2012, the child's social worker had the following discussion with C.: "I explained to C. that the Agency would soon have to make a decision regarding her care status. I explained that the Agency was contemplating making an application for permanent care and custody and if granted that she would be placed for adoption. I explained that the decision had not yet been made.

C. stated that she was scared to return to her mother's home because she believed her mother would allow her father to return to the family home and they would be fighting again within 6 months to a year. I asked C. if she believed that her mother would keep her safe and she stated no." [ 47 ] Dr. Hastey met with the appellant in January 2012. Dr. Hastey found that by then the appellant has demonstrated "no improvement in her attitude toward services, toward the Agency or toward her daughter in regard to the Agency concerns …". Dr.

Hastey further concluded from the interview that Ms. H. "continues to have a poor level of understanding in regard to R.W.'s mental health issues." Ms. H. denied during the interview with Dr. Hastey that C. was in fact afraid of her father, despite C. having told Dr. Hastey of this fear, and Dr. Hastey having conveying this to Ms. H. The appellant further denied that C. had suffered any emotional harm in the past, despite the finding to the contrary by courts in Nova Scotia and Ontario. [ 48 ] On January 31, 2012, the appellant retained new legal counsel, Donna Franey. Ms.

Franey participated by telephone in the next court appearance held February 2, 2012. [ 49 ] On February 2, 2012, the Agency advised the trial judge that it continued to seek only an Order for Temporary Care and Custody. At the beginning of the hearing, Agency counsel corrected her misstatement of the maximum date for disposition at the previous appearance. The court was advised the correct date was September 7, 2012, not March 7, 2012. She also informed the court that the parental capacity update assessment was still incomplete.

The Agency did not request trial dates, did not seek permanent care, and had not formulated its final plan for the child's care. The appellant, however, still wished to have a trial scheduled. [ 50 ] At that time, the trial judge no longer saw any need to commence a trial on February 23, 2012. She explained to Ms. H.’s new counsel that, "we set that date because we thought that the timelines were expiring in March". The trial judge recognized, "there was time", and asked trial counsel to discuss with her client her desired timing of the trial.

The matter was adjourned with trial dates to be set at the next appearance. [ 51 ] On February 3, 2012, Dr. Hastey completed an update to her Parental Capacity Assessment. [ 52 ] Dr. Hastey identified a number of concerns in her update, including the appellant's passively uncooperative approach with the Agency as exemplified by her behaviour on March 31, 2011; her uncooperative attitude towards signing and reviewing a Safety Plan with the Agency; and the appellant's uncooperative and aggressive manner towards her own court-ordered therapist, Lauraine Logan- Smith. [ 53 ] Dr.

Hastey concluded that the appellant had "failed to protect her daughter on several occasions from the effects of domestic violence." She also identified several behaviours affecting the appellant's parenting ability, such as her rigidity, poor communication and poor decision making. She was of the opinion that the appellant had not made any significant progress in regard to any of the problems or issues of concern which had been identified a year before in the report of March 2011.

She noted that, "[P.H.] does not believe she needs further counseling and did not state a willingness to participate in counseling or other services deemed necessary by the Applicant Agency should the child be returned to her day-to-day care." It was Dr. Hastey's opinion that the appellant was not capable of cooperating with an Order for Supervision, or able to provide a safe home for her daughter. She recommended that C. be placed in the permanent care and custody of the Agency. [ 54 ] On February 21, 2012, the Agency made an application for continuation of the Order for Temporary Care and Custody.

The Agency worker stated in her Affidavit that the Agency had accepted the opinions and recommendations of Dr. Hastey and would be formulating a Plan of Care seeking an Order for Permanent Care and Custody. [ 55 ] On February 23, 2012, a further Order for Temporary Care and Custody was granted by the Court, and trial dates were fixed with the consent of all parties for July 23, 24, 25, 30 and 31, 2012.

The Court also ordered that all Agency services and access continue unchanged. [ 56 ] The Agency filed its Plan of Care on April 4, 2012, seeking permanent care with no provision for access to the child by the respondents.

The Agency Plan provided that, if permanent care were granted, C. would be returned to the jurisdiction of Sixth Nations of the Grand River and the CAS Brantford in the Province of Ontario, her mother's and her home community, and there she would be made available for adoption. [ 57 ] On April 19, 2012, adjustments were made to the trial dates with the consent of all parties (July 30 & 31, 2012, and continuing September 17 & 18, 2012). [ 58 ] Evidence was also heard on this date (April 19, 2012), again with the consent of the parties, from only one witness (Dr.

Jolaine States), who had by then stopped treating C. and had planned to leave Canada prior to the scheduled trial dates. After this brief evidence was heard, the matter was adjourned to both a Settlement Conference and a further Pre-Trial Conference. [ 59 ] On June 12, 2012, the parties attempted to resolve the proceeding with a judicial Settlement Conference before another judge of the Family Court, without success. [ 60 ] The trial commenced on July 30, 2012. Access visits continued as the trial approached and throughout the trial process. A further interview of the appellant by Dr.

Hastey was arranged prior to trial to update the assessor's information and opinions. The appellant continued to receive counseling services from Charlene Thomas. There was no change in the services or access arrangement pending a ruling on the Agency's application for an Order for Permanent Care and Custody. [ 61 ] The parties agreed that because September 7, 2012 was outside the legislative time limit, the trial judge had only two options: dismissal or permanent care. Ms. H. sought dismissal of the proceeding. [ 62 ] The trial judge heard extensive evidence regarding C.'s experience during access visits.

She made the findings that, while access visits were mainly positive, the access facilitators noted inappropriate comments made by the appellant to C., often towards the end of access visits, i.e. talking about the respondent Mr.

W. even after she was made aware that C. was not "comfortable in talking about her Dad", and making negative comments about C.'s care in her foster home or about Agency staff. (p.17) The trial judge noted the appellant's "continued insistence on inappropriate and anxiety-causing behaviour and conversations during access." (p. 27) [ 63 ] The appellant's lack of cooperation with access supervision was also thoroughly canvassed in the evidence. Access facilitators reported that the appellant simply turned her back to them during access and engaged in rude behaviours. Agency social

workers testified that the appellant usually refused to acknowledge or speak to them during or before access. Agency staff all testified as to the appellant's uncooperative and rude interactions with them. [ 64 ] The trial judge heard opinion evidence from Lisa Richardson. Lisa Richardson provided therapy to C. from March to October 2012. Ms. Richardson related to the trial judge that C. was made uncomfortable by the appellant's anger at the Agency and by the appellant repeatedly mentioning Mr. W. during access visits. Ms. Richardson also described C.'s "shock and panic" when Ms.

H. told C. of the Agency's plan to return her to the Mohawk Sixth Nations in Ontario, if she is placed in permanent care. [ 65 ] Ms. Richardson indicated that C. has a great deal of anxiety about what will happen to her, and guilt that she has "said the wrong thing". Ms. Richardson testified that access with the appellant was unpredictable for C., sometimes good, but sometimes upsetting; as a result, C. was often anxious before access. [ 66 ] Ms. H., on the other hand, described her continued references to Mr. W. during her access as her attempt to keep a connection between C. and her father.

She did not accept Ms. Richardson's view that this made C. uncomfortable. C. was noted after meeting with her mother as nauseated or vomiting after or during access visits. [ 67 ] Regarding change and prospects for change, the trial judge said the following: "Many of the changes which [the Appellant] identifies as having occurred since the protection finding had been present before this proceeding. For example, [the Appellant] cites greater community, social, cultural and fitness involvement since her most recent separation from [the Respondent W.]. However, similar gains were noted by Mr.

Whitzman when [the Appellant] and [the Respondent W.] separated in 2006 to 2007. [The Appellant] also cites her positive job experience, but she has been employed in her present job since 2009. [The Appellant] has engaged in counselling with Ms. Thomas and expresses a willingness to continue, but she has participated in counselling during other proceedings as well. She has previously been able to express an understanding of the impact of domestic violence on children, but this did not result in changes in [the Appellant's] judgement and decision making in that regard.

" (pp. 26-27) [ 68 ] The trial judge was of the view that "less intrusive alternatives were not available and would have been inadequate to protect this child throughout this proceeding and that all reasonably necessary services were provided to this family." (p. 29) She concluded: [C.] has been taken into care five times in her short life. The evidence before the Court is that her father continues to have serious unresolved mental health and personality issues which placed [C.] at significant risk of exposure to domestic violence. I accept Ms. Richardson's and Dr.

Hastey's evidence that [C.] has suffered significant emotional harm by her exposure to domestic violence. The Court finds that the Minister has proven on the balance of probabilities that [the Appellant] remains incapable of protecting [C.] from significant harm and is incapable of providing adequate parenting for [C.]. No community or family placements have come forward.

The Court accepts the Minister's Plan of Care as being in [C.'s] best interests and will sign an order for permanent care and custody. (p. 30) [ 69 ] The trial judge, however, did consider the possibility of granting an Access Order upon permanent care. She was aware that the CAS Brantford would be the Agency responsible for C. if returned to the Six Nations Band. [ 70 ] The position of the Six Nations Band on any access order was well-known.

On March 5, 2012, a Band representative advised the Truro Agency that adoption placement in their community "would be dependent on whether or not there was an access order." The Band agreed to seek out extended family members for placement, but later advised the Truro Agency there were no viable family placement options for the child in her home community.

The Six Nations Council made a formal request on June 12, 2012, that C. be returned to her First Nations community, should she be placed in permanent care. [ 71 ] Sally Rivers of the CAS Brantford testified at trial that should C. be placed in permanent care because an access order would "severely limit" their ability to find a permanent home for the child, and in the past [i.e., in other cases], access orders had interfered with the permanent placement of children.

The trial judge found that, "Sally River's unchallenged evidence is that an access order would impair the child's opportunities for adoption." (p. 31) [ 72 ] As a final finding of fact, the trial judge concluded that, "To order access in this case would impede permanent placement which would not be in the child's best interests. No special circumstances exist." She ordered that access be terminated. (p. 31-32) Issues [ 73 ] It is against this factual backdrop that I will now address the issues on appeal: 1.

Did the trial judge err in law by concluding that the duration for the disposition orders concerning C. was March 7, 2012 and not September 7, 2012, thereby collapsing the time line for C. without finding this would be in C.’s best interest; 2. Did the trial judge err in considering whether access should be ordered upon permanent care? Standard of Review [ 74 ] This is an appeal from a trial judge’s decision. Our role is not to embark upon a fresh assessment of the evidence or to substitute our exercise of discretion for that of the trial judge.

We may only intervene if the trial judge erred in legal principle or was shown to have made a clear error with respect to a factual finding that has materially affected the result ( Children’s Aid Society of Cape Breton-Victoria v. A.M. , 2005 NSCA 58, ¶26). Issue #1 - Did the trial judge err in law by concluding that the duration for the disposition orders concerning C. was March 7, 2012 and not September 7, 2012, thereby collapsing the time line for C. without finding this would be in C.’s best interest?

[ 75 ] The appellant says that the trial judge “collapsed” the timeline for the disposition of this matter and, in failing to give reasons for collapsing the timeline, she erred. In particular, she says the trial judge failed to recognize the significant negative impact upon C.’s best interests collapsing the time line would have. Appellate counsel fleshed out this ground of appeal in oral argument saying that once timelines were collapsed and the matter was moving towards a Final Disposition Hearing, the conflict between Ms. H. and the Agency escalated, resulting in lack of services being provided to Ms.

H. and a confrontational relationship between Ms. H. and the Agency post- January, 2012. This made it difficult for Ms. H. to address the Agencies concerns. [ 76 ] The appellant’s argument fails both factually and legally. [ 77 ] As noted earlier, on January 5, 2012, Agency counsel misstated the maximum time limit for Disposition Review on the record saying it was March 7, 2012, rather than September 7, 2012.

However, on February 2, 2012, counsel corrected her mistake on the record stating the case worker had until September 7, 2012, to complete the Disposition Review. [ 78 ] The trial judge made no decision which affected the timelines or the manner in which this matter proceeded to trial. It was clear to everyone involved on February 2, 2012, that the time line to complete the Disposition Review was September 7, 2012. [ 79 ] The Agency had not yet determined that it would seek an order for permanent care and custody.

It did not change the manner in which the Agency made its decision. [ 80 ] When the trial dates were set on February 23 rd , 2012, it was by consent of the parties. I have set out, in considerable detail above, what occurred between January 5, 2012 and the date of trial to illustrate the manner in which the Agency proceeded; Ms. H.’s ability to access services; and, her access visits with C. There were no changes made to the access arrangement pending trial nor was any change made to the services which were available pending trial. The trial dates were agreed to by Ms.

H.’s counsel and the complete statutory time period was exhausted by the time the trial was completed. [ 81 ] The suggestion that C.’s best interests were somehow impacted by Agencies’ counsel’s misstatement is simply not borne out by the record. The appellant had every opportunity to access services and to have access visits with her daughter. [ 82 ] The appellant’s position is also wrong in law. In her factum, Ms. H. speaks of the time frames as if they are a right of the parent: 46. The inclusion of the maximum timeframe for final disposition orders in s. 45 of the Act , is to identify to the parent(

s) a timeframe in which they must ameliorate the child protection concern(s). ... [ 83 ] The appellant also says: 59. But there is a presumption that the parent(

s) will have the maximum statutory timeframe available to them. [ 84 ] In support of her position she cites Children’s Aid Society of Cape Breton (Victoria) v. J.F. , 2005 NSCA 101 . With respect, the time lines in the Act are not a right of the parent and J.F. is not authority for that proposition. J.F. simply said that the question for the court is whether adequate parenting can be achieved within a reasonable time frame. That time frame is presumed to be the statutory time limit in the Act .

J.F. does not say that the parents are entitled to the maximum statutory time frame available to them to ameliorate the parenting concerns. [ 85 ] Section 42(4) of the Act says that before granting an order for permanent care and custody, the trial judge must consider whether the circumstances justifying the order are unlikely to change within a reasonably foreseeable time not exceeding the maximum time limit in s. 45(1) of the Act , so the child may be returned to the parent. [ 86 ] Section 46(6) of the Act expressly directs a trial judge, at every review hearing, to not keep granting temporary care if the circumstances are unlikely to change within a reasonably foreseeable time not exceeding the maximum allowable under the Act . [ 87 ] Courts must respect the child’s – not the parent’s – sense of time and the impact on the child of time passing, not the impact on the parents.

J.F. makes this point clear: It is in a child's interests that the uncertainty that accompanies a child welfare proceeding be prolonged no longer than necessary. The statutory time frames provide the outside limits.

Indeed, the Act contemplates that an order for permanent care may be necessary even before the maximum times have expired (see, for example s. 46(6)). ... (¶19) [ 88 ] The statute does not oblige a judge to defer a decision to order permanent care until the maximum time limits have expired: The Act does not require a court to defer a decision to order permanent care until the maximum time limits have expired. The direction of s. 46(6) of the statute is to the opposite effect. ( L.L.P. v.

Nova Scotia (Minister of Community Services) , 2003 NSCA 1 , ¶31) [ 89 ] Finally, this Court has expressly approved the principles articulated by Williams, J. in Nova Scotia (Minister of Community Services) v. S.Z. , (1999) 179 N.S.R. (2d) 240 (S.C.F.D.) , aff’d 1999 NSCA 155 where he said: 60 Should the Agency seek a permanent order where there is what seems like so much time left on the statutory clock?

The Agency has a right, if not a duty, to do so where it believes it can satisfy the burden of proof put on it by the operation of the relevant statutory provisions which include, as stated in sections 2(1) , (2) and 3 (2) of the Children and Family Services Act . 61 The time limits set out in s. 45(1) are just that - limits. They are not goals. They are not waiting periods . Each case is different. Each case must be decided on its particular facts and circumstances. ... (Emphasis added) Conclusion

[ 90 ] There is no presumption in favour of the parents that they will have the maximum time frame under the Act to remedy the concerns of the Agency. This argument is not legally sustainable and, as noted earlier, it is not sustainable on the facts of this case. [ 91 ] I would dismiss this ground of appeal. Issue #2 - Did the trial judge err in considering whether access should be ordered upon permanent care? [ 92 ] The only remedy sought on this appeal is access post-permanent care.

In support of her argument on this ground of appeal, the appellant relies on Legere Sers, J.’s recent decision in Mi’kmaw Family and Children’s Services v. L.I. , 2012 NSSC 412 . In that decision, the trial judge is critical of this Court’s decisions in Nova Scotia (Community Services) v. T.H. , 2010 NSCA 63 and Children and Family Services of Colchester County v. K.T. , 2010 NSCA 72 .

Leave to appeal both of those decisions was refused by the Supreme Court of Canada ([2010] S.C.C.A. 385 and [2010] S.C.C.A. 451). [ 93 ] In L.I. , the trial judge seems to assume that this Court’s jurisprudence has shifted and now prevents trial judges, at a final disposition hearing, from considering the best interests, and defers the best interests analysis until the adoption hearing ( L.I. , ¶39-43).

Justice Legere Sers said her purpose in L.I. was to “sound the warning bell about the dangers inherent is the change in direction these cases appear to be taking our Family Courts”. ( L.I. , ¶22) In that case, this Court sent the matter back for rehearing solely on the question of whether access should be ordered post-permanent care. Despite this limited mandate, Legere Sers J. nevertheless thought it necessary to go further and in a lengthy obiter she went on to assess how the adoption procedure under the CFSA works once permanent care has been ordered.

That was not an issue that was before her and she erred in misapprehending this Court’s jurisprudence which is, of course, binding upon her. So too does the appellant in reliance upon L.I. [ 94 ] The appellant accepts that the trial judge considers best interests at the disposition hearing, but argues that there is no judicial oversight of the child’s best interests unless there is an adoption hearing. According to the appellant, this lack of judicial oversight means there is no one to look out for the child’s best interests between the time the child is placed in permanent care and adoption.

She argues that if the trial judge had done a best interest analysis for access post-permanent care she would have concluded that it was in the child’s best interest to maintain access with her mother. She says by failing to do so the trial judge erred. Relying on L.I. she asks us to reconsider this Court’s approach in T.H. and K.T. [ 95 ] To address the appellant’s argument, it is necessary to address, in some detail, the two main themes I take from the reasons in L.I. First, there is a broad theme that there is a deferral of the best interest analysis.

As I read her decision, the trial judge believes that this Court has moved away from the best interests analysis at the permanent care stage. That assumption reveals a failure to appreciate this Court’s decision in T.H. which dealt extensively with the statutory role of the Minister to guard the child’s best interests once permanent care is ordered, whether or not the child is adopted down the road. [ 96 ] The second theme relates to this Court’s articulation of the test for permitting access after permanent care is ordered pursuant to s. 47(2) (

d) of the CFSA . I will address these two themes individually. Deferring the Best Interests Analysis [ 97 ] At the appeal hearing in this case the Minister submitted in argument that the decision in L.I., and the appellant’s reliance upon it, misunderstand the role of the Minister in protecting the child’s best interests once the child is in permanent care.

I agree. [ 98 ] T.H. affirms that the disposition judge always considers best interests at the permanent care hearing, yet recognizes that a shift in focus occurs post-permanent care (¶43), when the court is no longer responsible for overseeing every step of the child’s permanent care plan. That is because the Minister has then become the child’s legal guardian. As Fichaud, J.A. explained in T.H . : Normally the permanent care and custody order ends the disposition hearing.

Section 47(1) of the CFSA says that the Agency (i.e. the Minister) is then the child’s legal guardian, and the CFSA directs how the Minister may then proceed with adoption. (¶12) [ 99 ] The following CFSA provisions demonstrate that the disposition judge can only make an order for permanent care if it is in the child’s best interests, and then, once that happens, the statute entrusts oversight of the child’s best interests to the Minister: • Section 42(1)(

f) ensures that a decision to place the child in permanent care will be made in the child’s best interests. • Once the judge orders permanent care under section 42(1)(f), section 47(1) shifts responsibility for the child to the Agency. [ 100 ] It is important to remember the facts in T.H.

The trial judge’s decision in T.H. was unusual because he had added conditions to the permanent care order for two brothers: “The conditions’ bottom line was that the boys would remain in foster care and not be adopted.” ( T.H. ,¶13) [ 101 ] The Minister appealed, arguing that the Family Court had no jurisdiction to restrict the Minister’s authority over children in the Minister’s permanent care and custody.

The appeal was allowed because the trial judge had erred in law by failing to consider the particular provisions in the CFSA related to what happens after permanent care. ( T.H. , ¶27) By imposing conditions on permanent care, the trial judge in T.H. had tried to dictate what would happen after his permanent care order came into effect – and that was an improper intrusion into the Minister’s territory. [ 102 ] It seems, with respect, that the trial judge in T.H. had perhaps mistaken the forest (the overarching stipulation in s. 2(2) of the Act that the child’s best interests are always paramount) for the trees (the particular CFSA provisions breaking down how, exactly, the child’s best interests are considered once the child is in the Minister’s permanent care and the Minister plans for adoption).

Fichaud, J.A.

explained this distinction: Section 2(2) directs that child's best interests be paramount in "all proceedings and matters pursuant to this Act ". The disposition proceeding here under s. 42, the disposition order under s. 43, the permanent care and custody order under s. 47, and the adoption provisions in ss. 67-87 are "proceedings and matters pursuant to this Act ". So their governing statutory provisions are to be interpreted consistently with the child’s best interests as stated in s.(2). That conclusion does not end the analysis.

In J.J. the Adult Protection Act, a brief enactment, did not specify how the welfare of the adult in need of protection should be determined regarding her placement. So s. 12’s statutory mandate to promote J.J.'s welfare infused the judge’s general powers under s. 9(3)(

c) with a judicial discretion to fashion conditions for J.J.’s welfare. In Blois v. Blois , the other authority considered by Judge Levy, the Appeal Division considered the former Family Maintenance Act , S.N.S. 1980, c. 6, the predecessor to the current Maintenance and Custody Act , R.S.N.S. 1q989, c. 160. The Family Maintenance Act similarly lacked specific statutory direction on the matter in issue (residence restrictions for custody).

Here the CFSA is a comprehensive statute with specific provisions defining how, when, by whom, and the criteria by which the child's best interests are to be determined and promoted respecting adoption. These provisions belong in the interpretive exercise. Judge Levy's decision did not consider them . As I will explain, in my respectful view this led to an error of law. (¶26-27) (Emphasis added) [ 103 ] Fichaud, J.A. emphasized that the generality of s. 2(2) does not override or invalidate the more particularized provisions of the Act : Section 2(2) is not abrogative, like s. 52(1) of the Constitution Act, 1982 .

It does not invalidate other sections in the CFSA . Rather s. 2(2) is to be construed consistently with other provisions in the CFSA . That is the interpretive exercise directed by J.J .

In my respectful view, the judge erred in law by contravening the Legislature's expressed intent respecting the process and standards according to which the best interests of children in the Minister's permanent care and custody are considered for adoption.(¶57) [ 104 ] The permanent care order triggers the Agency’s ability to put its plan of care into place, making it different from other judicial orders under the CFSA . ( T.H. , ¶36-37, ¶43-44) The Minister is obliged under the Act to make placement decisions in accordance with the child’s best interests and within the timeline set out in the Act , and does not require court approval along the way.

Again quoting Fichaud, J.A. from T.H. : Placement is a "matter" under s. 2(2), meaning the Minister's paramount consideration must be the child's best interests. But that does not mean the court has a plenary authority to pre-empt the exercise of the Minister's functions as legal guardian. This court has said that, unless there is bad faith or breach of the duty of fairness, the CFSA intended that placement decisions for children in permanent care and custody rest with the Minister, under the Minister's status as guardian under s. 47(1). N.N.M. v.

Nova Scotia (Minister of Community Services) , 2008 NSCA 69 , para. 63-74 , 86 and 98 and authorities there cited. Judge Levy's decision referred to s. 47, but did not mention N.N.M . or any authority that discusses the CFSA . (¶38) [ 105 ] It is inaccurate to speak of a “gap” or “deferral” of the best interests analysis, either under the CFSA or through this Court’s

interpretation of the Act . There is no break in consideration of the child’s best interests. The judge will only order permanent care if it would be best for the child, and then the Minister will be responsible for ensuring that the placement plans are in the child’s best interests. That is the statutory scheme approved by the Legislature. (See also Nova Scotia (Minister of Community Services) v.

N.N.M. , 2008 NSCA 69 ) If the plan leads to adoption, a court once again resumes oversight of the child’s best interests in order to approve the adoption. ( T.H., supra , ¶52-56) [ 106 ] Fichaud, J.A. explained this in T.H. , when he outlined the potential consequences of the trial judge’s attempt to impose conditions on permanent care and intervene in the permanency planning process even though the Legislature has put other actors in charge. He wrote: The decision under appeal would preclude these legislated processes and standards for adoption.

The role of the adoption court under ss. 73 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 no application of the adjusted adoption criteria for best interests in s. 3(3). There would be no opportunity for a ministerial recommendation to the adoption court under s. 77(2) or, for that matter, a ministerial consent under ss. 74(7) and (8).

There would be no real people for the adoption court to appraise as potential parents, and no evidence of residence with the prospective adoptive family for the court to weigh, when the court decides whether adoption is in the child's best interests. In Nova Scotia (Community Services) v. C.B.T . , 2002 NSCA 101 , at para. 12 this court adopted the trial judge's statement, [2002] N.S.J. No. 79 , in a ruling after a disposition hearing, that "[t]his court does not have jurisdiction over adoption".

That is because the CFSA assigns that jurisdiction to another court at a later juncture. (¶56) [ 107 ] Yet the trial judge in L.I. said that this reasoning from T.H. , later confirmed in K.T. , was “based on a misapprehension of the adoption process” ( L.I. , ¶38) and created “an arbitrary and unnecessary distinction” between the final disposition court and the adoption court. ( L.I. , ¶54-55). She stated: Based on a misapprehension of the actual process of adoption these comments have the exact effect of reducing/limiting the trial [judge’s] 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. 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). (¶56-57) She repeats these criticisms throughout her decision. ( L.I. , ¶24; ¶43; ¶49-64; ¶83-86; ¶107; and ¶112) [ 108 ] T.H. did not say that the best interests analysis is adjourned to the adoption hearing and/or that trial judges must now defer the

“expanded analysis” to the adoption court. T.H. simply confirms what the statute says: if the final disposition court orders permanent care, it does so in the child’s best interests; then, the Minister becomes the child’s legal guardian and responsible to protect his or her interests throughout the placement process; and if that process leads to adoption, a judge will consider the proposed adoption.

As Fichaud, J.A. explained in T.H. a permanent care order brings a changed focus with a view towards a long-term stable placement, but that does not delay the assessment of what the child’s best interests require.( T.H. , ¶43-46) [ 109 ] Nor did T.H. indicate that the adoption court would undertake a full-fledged best interests analysis (beyond what s. 78(1)(

c) requires). This Court noted that the CFSA “reprioritizes” the factors in the best interests assessment where there is a proposed adoption ( T.H. , ¶49-50). The Court’s approach recognized that the consideration of best interests at the adoption hearing is more limited and circumscribed than the analysis that occurs at the final disposition hearing. [ 110 ] T.H. is not the only case where this Court has deferred to the role of the Minister once permanent care has been ordered. Such statutorily required deference runs through the procedural fairness cases of N.N.M., supra and Nova Scotia (Community Services) v.

T.G. , 2012 NSCA 43 (leave to appeal denied [2012] SCCA 237) where this Court emphasized that the CFSA gives the Minister the responsibility to protect the children’s best interests and discretion over the adoption process. [ 111 ] This Court’s decision in K.T. also recognizes that the Agency is obliged under the Act to place the child’s best interests front and centre post-permanent care, and that judges cannot intervene where the statute does not permit it.

Reiterating what Fichaud J.A. outlined in T.H. , Chief Justice MacDonald stated in his introductory comments in K.T .: …according to our Children and Family Services Act , S.N.S. 1990, c. 5 ( CFSA ), 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 another 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. (¶2) [ 112 ] As MacDonald C.J. recognized, “a trial judge is one of the key decision-makers mandated to promote a child’s best interests,” (¶26) but not the only decision-maker mandated to do so. His comments on the proper role of the trial judge apply equally to the judge’s erroneous obiter efforts in L.I. to revamp the law: Yet when considering a child's best interests, a trial judge must work within the operative statute.

In other words, a judge in a child protection matter does not write his or her own standards that are inconsistent with the statutory standards governing the child's best interests. (¶29) And further: In

summary, while a consideration of a child's best interests is fundamental and important to a judge's role, specific statutory prerequisites cannot be sacrificed in attainment of this goal. It is, after all, within the province of the Legislature, if it so chooses, to prescribe how a child's best interests will be met. This is not the exclusive bailiwick of the judiciary. (¶34) [ 113 ] A review of T.H. and K.T. demonstrates that the judge’s reasons in L.I. misinterpreted these decisions on assessing the best interests of the child when considering permanent care.

T.H. and K.T. do not defer the analysis of the child’s best interests from the final disposition stage to the adoption stage. The disposition judge must consider the child’s best interests as the statute directs, but must recognize that by the terms of the CFSA , the Legislature expects the Minister to carry the burden of protecting the child’s interests once permanent care is ordered. There is no “gap” or “deferral” of considering the child’s best interest.

The appellant’s submissions in this case and the reasoning in L.I. fail to recognize or accept the Minister’s role in protecting the child’s best interests once the child is in permanent care. This Court’s approach to access orders under s. 47(2) of the CFSA [ 114 ] The second aspect of L.I. ’s reasoning, which the appellant focuses on in this case, relates to the proper

interpretation of s. 47(2), particularly (d): Order for access

(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) 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. (Emphasis added.) [ 115 ] As long as the Minister is planning for adoption, can there ever be a “special circumstance” that justifies making an order for access? This Court has effectively said “yes, but rarely.” This Court has interpreted s. 47(2) (

d) to read: “some other special circumstance justifies making an order for access “ and access will not impair the child’s opportunities for permanent placement if that is what the agency is planning. ” ( K.T. , ¶39) [ 116 ] The appellant follows L.I .’s reasoning and argues that this approach effectively deletes option (d). She urges a full and fresh

assessment of best interests when considering access under s. 47(2): Where the Agency indicates an intention to place the child for adoption, then the trial judge must balance where the child’s best interestsrest on a competing plan of parental access post-permanent care, against the impact continued access will likely have on placing the childfor adoption. (AF, ¶94(b)) L.I. calls for a similarly broad analysis. (L.I., ¶148-150) [117] This Court’s

interpretation of s. 47(2) in no way ignores the child’s best interests. Instead, it respects the Legislature’s clearintention to promote a stable placement for children in permanent care, including adoption, without the barriers that continued access cancreate. [118] The child’s best interests are naturally in the mix when a trial judge is considering access, as the Minister acknowledgedbefore us in argument, but by this point an entirely fresh balancing act is unnecessary.

This is because the bulk of the best interests workhas already been done with the permanent care decision, which would have been based on the Agency’s plan under s. 41(3)(e).

By thetime the trial judge is considering access, the scope of the child’s best interests will already be informed by the Agency’s plan and mustbe considered within the context of that plan. [119] In other words, the trial judge considers the full panoply of factors related to the child’s best interests when making adisposition under s. 42 and, if the conclusion is that the child should be placed in permanent care under s. 42(1)(f), the “changed focus”of the CFSA discussed in T.H. means that the child’s best interests are now oriented away from her parents and towards the potential fora permanent placement with another family (assuming that is the Agency’s plan).

The access option under s. 47(2) can only be seenthrough this lens; if it is in the child’s best interests to be placed in care leading to adoption or a similarly permanent placement, then itmakes logical sense to ensure access is only ordered if it will not impair those plans. [120] The appellant points out that, in practice, a great number of children are never adopted. But a court can only base its decisionon the evidence before it.

And, as in this case, the evidence will often indicate that access would negatively affect adoption plans.Evidence of this nature, combined with the agency’s permanency plan, will inevitably narrow the trial judge’s ability to grant access, butthis reality comes from the CFSA’s priorities, not our imagination. [121] Justice Gonthier put it nicely in New Brunswick (Minister of Health and Community Services) v M.L., (SCC), [1998] 2 S.C.R. 534: An order for permanent guardianship is the result of a consideration of the best interests of the child.

In considering whether visiting oraccess rights should be granted, the judge cannot ignore the fact that he or she has first found it necessary to remove the child from theparents' care completely and permanently, so that the child's welfare will not be jeopardized any further. The judge must thereforeconsider whether more limited contact might still be beneficial for the child. (¶38) This is how the best interests assessment is refocused when the judge is contemplating access post-permanent care.

The Court in M.L.explained this shift: My consideration of whether access should be granted is based on the following principles. First, there is no inconsistency in principlebetween a permanent guardianship order and an access order. Second, access is the exception and not the rule. Third, the principle ofpreserving family ties cannot come into play in respect of granting access unless it is in the best interests of the child to do so, havingregard to all the other relevant factors. Fourth, an adoption, which is in the best interests of the child, must not be hampered by theexistence of a right of access.

Fifth, access should not be granted if its exercise would have negative effects on the physical orpsychological health of the child. (¶39, emphasis added) [122] There was no comparable provision to s. 47(2) in the New Brunswick child protection statute at issue in M.L. But it is tellingthat the Supreme Court assumed that adoption efforts should not be impaired by access orders. This is consistent with this Court’sinterpretation of s. 47(2)(d). [123] Contrary to the reasoning in L.I., T.H. and K.T. are not a change in direction from previous decisions of this Court.

Beforeboth of those decisions, Bateman, J.A. wrote a trilogy of cases on the proper

interpretation of s. 47(2)(d). [124] The mother in the first case, Children’s Aid Society of Cape Breton (Victoria) v J.F., 2005 NSCA 101, argued that thejudge “erred in refusing to order continued access” and relied upon s.47(2)(d): J.F. says her improving mental health was a "special circumstance" justifying an access order. An access order here would amount to anindefinite extension of the statutory time periods, double the maximum time having already elapsed. This would run counter to the clearintent of the statute that such proceedings respect the child's sense of time.

Whatever the meaning of "special circumstance" in s.47(2)(d), it cannot be interpreted so as to circumvent the clear maximum times mandated by the Act unless the best interests ofthe child so requires. The judge was satisfied the children required security and stability with their best hope of achieving this being adoption. Inshort, their best interests were served by permanent placement for adoption.

This conclusion, which is not reflective of error andis not directly challenged on appeal, is inconsistent with the granting of access. (¶24-25) (Emphasis added) [125] This was a case where access would impair adoption, possibly indefinitely, so ordering access would not have been in thechild’s best interests.

Bateman J.A.’s reasoning was tied to the facts of the case and, on those facts the mother’s alleged “specialcircumstance” was not enough to recalibrate the unchallenged conclusion that the children’s best interests would be served by permanentplacement for adoption. [126] The next case in the ‘trilogy’ is A.J.G. v Children’s Aid Society of Pictou County, 2007 NSCA 78 where, again, the mother

argued on appeal that the trial judge erred in refusing to order access (¶9). [ 127 ] Without providing specifics on what may constitute a “special circumstance,” Bateman, J.A. explicitly spelled out that subsection (

d) must be read with (a): ...

It must be highlighted, however, that "special circumstances" are only available as a basis for access where "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" ( s. 47(2) (a)). (¶33) (Emphasis in original) [ 128 ] She nevertheless went on to consider whether access would have been in the child’s best interests, if the evidence about the adoption plans had been different. (¶34) After reviewing the evidence, she deferred to the trial judge’s finding that there were no special circumstances justifying access. (¶38) [ 129 ] The last case in Justice Bateman’s ‘trilogy’ is Children’s Aid Society and Family Services of Colchester County v E.Z. , 2007 NSCA 99 .

The trial judge in that case had made an access order, which the Court of Appeal overturned. (¶1, 16 and ¶61). Despite the “high level of deference” owed to the trial judge, Bateman J.A. found that he had materially misapprehended the evidence (¶33) by characterizing the evidence of the two psychologists who testified for the agency as “the usual reasons” for recommending that access be terminated.(¶32-33) [ 130 ] Immediately after citing Gonthier, J.’s comments from M.L. that “adoption can take priority over access,” (¶54) Bateman J.A. segued into a discussion of s. 47(2) .

She mentioned “the link between adoption placement and access” in s. 47(2) (a): As others have commented, the wording of s. 47(2) cries out for legislative clarification.

It suffices to say here that, at a minimum, this is statutory recognition that permanent placement of the child (which is usually, but not always, accomplished through adoption) takes precedence over access and that an access order must not be made where it will impair a child's opportunity for permanent placement. (¶56, emphasis added) [ 131 ] This statutory prioritization still leaves room for the best interests of the children to be considered – it is just that the best interests favoured a focus on adoption and a move away from access.

Justice Bateman stated: “The fact that an access order would reduce the pool of available prospective adoptive parents, as was the evidence, is highly relevant when determining whether ongoing access is in the best interests of these children.” (¶57) She reviewed the evidence and found that the trial judge could not have concluded that ongoing access would be in the best interests of the children. (¶59) [ 132 ] Fichaud, J.A. reviewed, and confirmed, this Court’s longstanding

interpretation of the legislation in T.H. : In A.J.G. v. The Children's Aid Society of Pictou County and J.G. , 2007 NSCA 78 , para. 33 , and Children's Aid Society and Family Services of Colchester County v. E.Z. and J.M. , 2007 NSCA 99 , para. 56 , this court confirmed the CFSA 's prioritization of long term stable placement over parental access, that would prejudice such a placement, after an order for permanent care and custody.

The Legislature has, after permanent care and custody, de-emphasized family contact and instead prioritized long term stable placement, including adoption, in the criteria governing the child's best interests. There are exceptions, of course, including access in limited circumstances under s. 47(2) and openness agreements after adoption under s. 78A. (¶45-46) [ 133 ] This Court’s consistent approach in the

interpretation of s. 47(2) was affirmed in K.T. [ 134 ] In K.T. the trial judge had ordered permanent care and continued access. The Court of Appeal found that the trial judge had not paid sufficient regard to the statutory provisions limiting this exceptional form of relief. As in our case, the Agency was planning for adoption, and presented evidence “that an access order would impair this proposed future placement.” (¶62) [ 135 ] In his review of the CFSA provisions, MacDonald, C.J. in K.T. endorsed Fichaud J.A.’s statutory

interpretation from T.H. regarding the Legislature’s shift in priority when it comes to access. (¶36) Yet our decision in K.T. is also the subject of criticism by the trial judge in L.I. [ 136 ] MacDonald C.J.’s analysis concerning the CFSA shift in focus is worth repeating in detail: Before the issuance of a permanent care order, the legislative focus is on preserving the family unit. This would understandably mean that when the children are in temporary Agency care, parental access is to be encouraged so as to hopefully rehabilitate the family. However, with a permanent care order, the focus shifts.

Any hope of preserving the family within the legislated time limits is presumably lost and the focus becomes a stable alternate plan . Thus, upon securing a permanent care order, the Agency under the CFSA effectively becomes the parent: 47(1) Where the court makes an order for permanent care and custody pursuant to clause (

f) of subsection (1) of

Section 42, the agency is the legal guardian of the child and as such has all the rights, powers and responsibilities of a parent or guardian for the child's care and custody. This provision suggests the termination of the natural parents' relationship with the children. However, in special circumstances, post-permanent care access is possible although given the stark change in focus, such circumstances are rare and limited to those that would not jeopardize the new focus, namely an alternate stable placement.

Thus, it is not surprising that the provision allowing for such access is highly restrictive : [Reproduction of section 47(2) omitted.] Therefore, from my reading of s. 47, three conclusions relevant to this appeal are clear. First, the Agency effectively replaces the natural parents. This puts the onus on the natural parents (or guardian) to establish a special circumstance that would justify continued

access. Second, by virtue of ss. 47(2)(

a) and (b), an access order must not impair permanent placement opportunities for children under12. Section 47(2)(

c) is consistent with this. It provides that if no adoption is planned then access will be available. This highlights theimportance of adoption as the new goal and the risk that access may pose to adoption. Third, for children under 12, the "some otherspecial circumstance" contemplated in s. 47(2)(d), must be one that will not impair permanent placement opportunities. Therefore, to rely on s. 47(2)(

d) as the judge did in this appeal, the (special) circumstances must be such that would not impair afuture permanent placement. When then would s. 47(2)(

d) apply? Consider for example a permanent placement with a family memberwhich will involve contact with the natural parent. Presuming that the adopting parents would be content with that arrangement, theadoption would not be deterred. See Children's Aid Society of Cape Breton-Victoria v. M.H., 2008 NSSC 242 at para. 35. In short, access which would impair a future permanent placement is, by virtue of s. 47(2), deemed not to be in the child's bestinterest. This represents a clear legislative choice to which the judiciary must defer. Finally, I note that this court has made similar pronouncements in the past.

See, for example, A.J.G. v. Children's Aid Society ofPictou County, 2007 NSCA 78, and Children's Aid Society and Family Services of Colchester County v. E.Z., 2007 NSCA 99. (¶37-42)(Emphasis added) [137] This Court in K.T. gave an example of a potential “special circumstance” under s. 47(2)(

d) that also respects (

a) and theCFSA’s broader policy on placement: a permanent placement with a family member which would involve contact with the naturalparent, as long as the adopting parents were content with continued access. [138] The problem in K.T. itself was that the trial judge did not sufficiently contextualize his best interests analysis; instead, “heseemed to simply embark on a best interests analysis that ignored the prerequisites set out in s. 47(2) (while presuming that anarrangement which must be temporary could go on indefinitely).” (¶47) (italics in original) According to MacDonald C.J.: ...In reading the entire decision, it is clear that the judge felt it to be in the children's best interests to maintain the status quo with thechildren remaining in foster care with access to the natural mother and her family continuing.

He said: The children's mental and emotional needs and the appropriate care to meet those needs is best provided by way of an Order forPermanent Care and Custody permitting the children's existing foster placement to be maintained on a long-term basis (Section 3(2)(e)). This respectfully is incongruent with the scheme of the CFSA.

I say this because the status quo that the judge wished to preserve was aregime of temporary care, which by the time of the disposition hearing had to have ended by the dismissal of the Agency's applicationand the return of the children to their mother, or an order of permanent care to the agency with or without access. (¶44-45) [139] The following hypothetical from K.T. further illustrates the need for contextualization: Further on this point, consider the front end of the child protection process when agencies first become involved.

Then the legislativefocus is on preserving the family unit by offering services. Permanent care at that stage under the same legislation is to be considered alast resort. See for example: 42(2) The court shall not make an order removing the child from the care of a parent or guardian unless the court is satisfied that lessintrusive alternatives, including services to promote the integrity of the family pursuant to

Section 13, (

a) have been attempted and have failed; (

b) have been refused by the parent or guardian; or (

c) would be inadequate to protect the child. Yet, what if the judge at that stage could consider only what he viewed as the best interests of the children without reference to thosestatutory prerequisites? He may very well have been tempted to order an immediate adoption so as to prevent any further risk to thesechildren. But that simply is not how the legislation operates. In my view, it is no different at the other end of the spectrum. The limitations of the statute must be respected however stronglythe judge may feel about the child's best interests.

Thus, the judge seemed to have applied pre-permanent care priorities to the post-permanent care end of the process. This lured himinto reversible error. (¶56-59) (Emphasis added) [140] With this background in mind, I now turn to the reasoning in L.I.

In that case, Legere Sers J. suggested that the K.T. analysisshould remain confined to its own facts, and that trial judges should conduct a “meaningful unfettered analysis of access afterpermanent care”: (Emphasis added) If those conditions listed exist, we need to then assess those conditions to determine on the totality of the evidence what serves thebest interests of the child or children before us. This would be more in harmony with the specific statute, the entire body of statutes and congruent with the entire body of the lawinclusive of the specific provision.

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 then beforethe court; one which demanded special considerations and L.B. v. Mi'kmaw Family and Children's Services of Nova Scotia, [2011] N.S.J.No. 623, as demanding what Gonthier J. did in New Brunswick (Minister of Health and Community Services) v. ML,

(SCC) , [1998] 2 S.C.R. 534, that is that we conduct a meaningful unfettered analysis of access after permanent care and seek out that information we need to do so. That would be in harmony with the specific statutes, the other body statutes dealing with children and the vast body of case law which adopts consistently a broad application of best interests test. We ought to read the sections as coherent rather than place them in conflict with one another.

It follows that interpreting K.T. so as to further restrict the courts ability to conduct a meaningful enquiry moves us further from the spirit and intent of a vast body of substantive law. (¶150-155) [ 141 ] To similar effect: I conclude section 47(2) is the starting point. I approach this as unfettered in compliance with the substantive law requires and I do not exclude consideration of the best interests test as defined in section 3(2). The most persuasive authority is the consistent theme throughout that best interests, as defined in section 3(2) of the Act , is the ultimate test.

It would create an inconsistency to interpret Chief Justice MacDonald's decision in a restrictive fashion such that a total analysis of the best interests would be ignored or, as suggested in T.H. , delayed. (¶177-179) [ 142 ] Finally: An analysis as to whether access should take place requires a consideration of the best interests of the children, the paramount consideration as articulated in section 2(2) ; it requires an analysis of the positives and negatives, the potential harm and a weighing of the possible plans in evidence. (¶350) [ 143 ] Legere Sers, J.’s approach and the appellant’s argument before us would result in a repetitive analysis of the wide-ranging best interests factors listed under s. 3(2), which would have already been considered as part of the permanent care decision.

Looking afresh at, say, “the child’s relationships with relatives” under (

b) or “the bonding that exists between the child and the child’s parent or guardian” under (

d) could unravel the permanent care determination and undermine the Agency’s plan for a permanent placement. To repeat the following paragraph from K.T .: In

summary, while a consideration of a child's best interests is fundamental and important to a judge's role, specific statutory prerequisites cannot be sacrificed in attainment of this goal. It is, after all, within the province of the Legislature, if it so chooses, to prescribe how a child's best interests will be met. This is not the exclusive bailiwick of the judiciary. (¶34) [ 144 ] This Court’s most recent pronouncement on access post-permanent care is Mi’kmaw Family and Children’s Services v. B.L. , 2011 NSCA 104 , the decision that led to the rehearing on access in L.I.

Oland, J.A. found that the trial judge had originally erred in principle by failing to consider access at all. She stated:

Section 2 of the Act states that its purpose is to "protect children from harm, promote the integrity of the family and assure the best interests of the children". There is no analysis in the judge's decision on the issue of access. According to the evidence at the final disposition hearing, the children and their mother share a warm attachment and a strong bond which, if disrupted, may present a risk of harm to the children. Section 47(2) does not impose a blanket prohibition against access.

Rather, a judge must consider factors such as the likelihood of impairment of opportunities for permanent placement and whether there are special circumstances which would justify making an access order. (¶42) [ 145 ] According to Legere Sers, J. on the rehearing, Justice Oland's analysis was a positive departure from T.H. and K.T. : Oland [JA] 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.

Oland [JA]'s decision, while apparently inconsistent with the restrictions placed on the courts by T.H. and T(

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

K) may be interpreted to mean. (¶68-69) [ 146 ] Justice Legere Sers uses quotation marks around the phrases "meaningful enquiry" and "broad enquiry" but neither phrase appears in Oland, J.A.'s reasons. [ 147 ] B.L. is not inconsistent with the Court's earlier jurisprudence, because of three case-specific factors: 1. The Agency's original plan included access, which should have triggered the trial judge to consider s. 47(2) even though the Agency changed its plan late in the day. (¶41) 2. Perhaps unusually, there seemed to be no agency evidence that access would impair adoption.

And there was evidence that access would be beneficial: "According to the evidence at the final disposition hearing, the children and their mother share a warm attachment and a strong bond which, if disrupted, may present a risk of harm to the children." (¶42) 3. Most importantly in my view, the Agency's plan was for a "kinship placement" within the Mi'kmaw community, (¶38) which the Court in K.T. indicated could constitute a "special circumstance" warranting an access order under s.47(2)(d). This cried out for consideration by the trial judge:

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 circumstance, or other circumstances exist, or access would be in these children's best interests. In my view, those matters should be addressed. [ 148 ] Taken together, these three reasons demonstrate why the trial judge erred in failing to consider access on the facts of B.L .

Oland, J.A. did not depart from K.T. on the fundamental analysis required under s. 47(2); in fact, she cited that case extensively. [ 149 ] In conclusion, I have reviewed the case law and the statutory provisions in some detail to illustrate that this Court’s

interpretation of s. 47(2)(

d) has been consistent and that K.T. and T.H. are not a departure from this Court’s previous

interpretation of that provision. Nor are they a deferral of the best interests analysis. L.I. ’s criticism of this Court’s recent jurisprudence is misconceived and fails to appreciate the Legislature’s clear intention in such matters. [ 150 ] The appellant’s reliance upon L.I . is misplaced. This appeal falls squarely within

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