Nunavut v. J.A. & J.N, 2014 NUCJ 32

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: Nunavut v. J.A. & J.N, 2014 NUCJ 32 Date: 20141128 Docket: 17-11-336 CHW Registry: Iqaluit Appellant: Nunavut (The Director of Child and Family Services) -and- Respondents: J.A. & J.N ________________________________________________________________________ Before: The Honourable Madam Justice Tulloch Counsel (Appellant): Sheila MacPherson Counsel (Respondent J.A): Jack Squire Counsel (Respondent J.N): Susan Switch Counsel (Applicant C.A.): Michael H.

Penner Location Heard: Iqaluit, Nunavut Date Heard: November 13, 2014 Matters: The Child and Family Services Act, SNWT, 1998, c 34, as amended, and as duplicated for Nunavut by

section 29 of the Nunavut Act, SC 1993, c 28 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Anonymized Judgment Disclaimer: This judgment has been has been anonymized at the discretion of the authoring Justice to protect vulnerable parties. I. INTRODUCTION [ 1 ] This decision is the result of an application brought by a loving foster mother (C.A.) seeking standing in a child welfare matter involving the child, R.N., who was in her care for almost three years. II. FACTS [ 2 ] It is important to provide a brief

summary of the facts in this case which are undisputed by the parties. They are as follows: • By the time R.N. was 15 months old, he had sustained several serious injuries including a fractured arm, femur and ribs; • In 2010, R.N. was hospitalized with a broken elbow and again in May of 2011 for a fractured leg; • During this time period the parents struggled with addiction issues resulting in a finding that family violence was present in the home; • On May 17, 2011, R.N. and his older brother were apprehended by the Director of Child and Family Services [the Director].

Although the older brother was returned to the mother, R.N. remained in the care of the Director; • Suspected physical abuse played a significant role in the initial apprehension and in the subsequent protection proceedings; • R.N. sustained a broken collarbone while in foster care with his grandmother while the mother was exercising access; • In September of 2011, R.N. was removed from his home community and placed in the care of C.A. until May 30, 2014. A.

New Information [ 3 ] R.N. continued to sustain broken bones while in the care of the foster mother, C.A., which necessitated many trips to the hospital in Winnipeg for extensive and frequent medical treatment. [ 4 ] The fractures caused the Director and R.N.’s medical professionals to reconsider their original conclusion of intentional infliction of harm. [ 5 ] During the final year that R.N. was in C.A.’s care, the Director grew concerned about her facilitation of access with R.N.’s biological parents and came to the conclusion that she may become a barrier to effective reunification. [ 6 ] R.N. was removed from C.A.’s care on May 30, 2014, and placed in a foster home in his home community where he has had regular access with his parents.

[7] In June and July of 2014, the Director received medical reports substantiating that R.N. is likely to be suffering from a new strain ofosteogenesis imperfecta or what is commonly referred to as “brittle bone disease”. [8] To date, there is still no definitive finding that the child is in need of protection and at present, R.N. is still in the temporary custodyof the Director. III. THE APPLICATION [9] The parents, and in particular the mother, are working hard to address underlying parenting issues.

All parties to this action are nowworking towards developing a consent supervision order that they feel would be in the best interest of this young boy.

That order wouldfocus on the reunification of R.N. with his biological parents and extended family in his home community. [10] In coming to my decision today, I have taken into consideration the able submissions of all counsel and I have carefully reviewedall of the cases provided to assist the Court. [11] Counsel on behalf of C.A. concedes that the relief requested under paragraph two of his application (temporary or permanentcustody of R.N.) is not possible in these proceedings.

It forms no part of this decision. [12] Alternatively, he asks the court to allow C.A. leave to appear as amicus curiae in the proceedings involving R.N., pursuant to Rule92 of the Nunavut Rules of Court, N.W.T.

R-010-96, Rule 27, as duplicated for Nunavut by s.29 of the Nunavut Act, S.C. 1993, c. 28[Rules]. [13] That rule is set out as follows: 92. “With leave of the Court, a person may intervene in a proceeding, without becoming a party to the proceeding as amicus curiae forthe purpose of rendering assistance to the Court by way of argument or by presentation of evidence, on such terms as to costs orotherwise as the Court may impose.” [14] With the greatest of respect to counsel for the applicant, I cannot find that the appointment of C.A. as amicus curiae on theseparticular facts and in this particular case has any basis in law.

The case of R v Wing Toon Lee, (NWT SC), 125 CCC(3d) 363, is just one of many that set out situations where the court would require the assistance of an amicus. None of those situationsapply to this case. [15] The information that C.A. may be able to provide is already known to the Director and, therefore, it does not warrant herappointment in the role of amicus curiae. I therefore dismiss the relief sought in paragraph three of Ms. A’s application. [16] That being said, from the submissions of counsel I find that what Ms. A. is really seeking is some form of standing.

She wants to beinvolved in what happens to R.N. She loves the child and feels that she has information to offer the Director that would, as she sees it, behelpful in deciding where R.N. should live and with whom. [17] She clearly feels that the sudden removal of R.N. from her care was unwarranted and unfair in the circumstances. [18] C.A. and her daughter have had the care of this child from an early age. They have developed a strong bond with R.N. over thelengthy period of time that they have had him in their lives.

Given this child’s fragility and unique and demanding medical condition, thisis understandable. [19] I must decide whether allowing C.A. standing in this case is in this child’s best interest.

[ 20 ] There has been a long and very unfortunate delay in these proceedings. This delay cannot be attributed to R.N.’s parents or to the Director. Although it is very unusual and has contributed greatly to the bonding between the child and the foster mother, it is a neutral factor in the decision I now have to make. IV. THE ISSUE A.

Would it be in R.N.’s best interest to grant standing to C.A. to become a party to the proceedings presently before the court? [ 21 ] The proceedings are currently at the stage where the Director is working hard to reunite the child with his parents. [ 22 ] The law with respect to granting standing is set out in a number of the cases provided by counsel. Although I have set out the issue to be decided based on the paramount principle under the The Child and Family Services Act, S.N.W.T., 1998, c. 34, as amended, and as duplicated for Nunavut by

section 29 of the Nunavut Act, S.C. 1993, c. 28 , there are other factors that must be taken into consideration. They are as follows. (i). Would the addition of Ms. A serve the child’s best interest? [ 23 ] Counsel for the applicant points to the decision of this court in MAS (Re), 1999 NUCJ 01 , [1999] Nu J No 3 (QL) . In that case, Justice Browne granted the foster parents standing because they were in fact the only parents known to the child and their input was needed in the father’s application for custody. This was a case where the father had played no role in the child’s life and was a virtual stranger.

That is not the case in these proceedings. [ 24 ] R.N.’s parents are known to R.N. and they deserve the opportunity to prove to the Director that they can meet his needs in the future. C.A.’s role in their struggle is very limited. She does not know the parents and has nothing of substance to offer that would assist the Director with this important consideration. There is no doubt that Ms. A. has R.N.’s best interest at heart, but so does the Director and others who are parties to the litigation. (ii).

Is it likely to prolong proceedings if C.A. is granted standing? [ 25 ] I have no doubt from what I have heard in this case that C.A. is having a great deal of difficulty letting R.N. go. She is not particularly supportive of his parents’ request to have him back and I do not believe she can be impartial in the ultimate decision that will need to be made in this case. She loves the child too much to take a back seat in his reintegration. It is therefore very likely that adding C.A. as a party to this litigation would prolong proceedings. (iii).

Is the addition of C.A. necessary to determine the issue? [ 26 ] In this case, the issue is whether or not this child is in need of protection. Ms. A. has nothing to contribute with respect to this question. As stated previously she does not know the parents. She does not know what efforts, if any, they have made to provide a safe environment for R.N. Her addition is not necessary to determine the issue in this case. (iv).

Does C.A. have a legal interest in this case? [ 27 ] C.A. is a devoted foster parent to R.N., but she does not have any legal interest based on the relief she is seeking. [ 28 ] At this point, no order can be made for or against C.A. She does have an interest in the outcome of the case, but she is not legally

affected (Children’s Aid Society of London and Middlesex v JP, (ON CJ), [2000] OJ No 745 (QL)). (v). Is C.A. capable of putting forward of plan of care which would be in the best interest of R.N.? [29] Everyone agrees that C.A. is. No one is disputing the excellent care she has given this child while he has been safe in her custody. [30] The important role in child protection hearings with respect to foster parents is clear. They are temporary caregivers and not parties.They take on the role knowing that the Director has the sole discretion of deciding where the child will live in the future.

It is a difficultrole and in this case it was exacerbated by the long delay in proceedings and the additional care given by the foster mother and herdaughter due to R.N.’s serious medical condition. [31] The decision of the Ontario Court of Justice (Provincial Division) in the Children’s Aid Society of Metropolitan Toronto and D.S.and F.S., (ON CJ), [1991] OJ No 1384 (QL), sets out the role of foster parents and why the best interests of the childcan never be met by partaking in a contest between the foster parents and the biological parents.

Paragraph 25 says the following: If comparisons between foster parents and original families were legitimate from the outset, it would be tantamount to declaring openseason on each and every child who was moved, however temporarily, into a foster home. When could it not be said that there was anattachment between a foster parent and a child and that moving the child back to the family would break the attachment? When could itnot be said that the foster home had advantages over the original home?

It would be ironic if foster homes were being chosen where thefoster parents were so casual that there was no attachment or where the resources were no better than the family that was being assisted. V. CONCLUSION [32] For all of the reasons mentioned above I cannot grant C.A. standing in this case.

It would not be in the best interest of R.N. to do soand the application is hereby dismissed. [33] Although I am convinced that my decision is correct in law, I make the following observation in the hope that the parties to thisaction might take what I am about to say to heart. [34] For almost three years C.A. and her daughter have cared for this fragile young boy. During that time it is very possible that theylearned some things that would be useful to R.N.’s future care. [35] I invite C.A. and her daughter to prepare a

summary of their time with R.N. focusing on the day to day care they have given himover the time they had him in their lives. That

summary is then to be delivered to the Director of Child and Family Services who willpass it on to R.N.’s future caregivers. [36] I believe that this one time sharing of information in writing could be very useful in R.N.’s future. [37] I am also hopeful that it might assist Ms. A. and her daughter to understand that the excellent assistance they gave R.N. as fosterparents is both appreciated and meaningful.

Dated at the City of Iqaluit this 28th day of November, 2014 ___________________ Justice B. Tulloch Nunavut Court of Justice