Mi'kmaw Family and Children's Services v. B.L. et al., 2012 NSSC 412

• Judge: Legere Sers, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: August 27, 2012
• Jurisdiction: Nova Scotia
• Citations: 2012 NSSC 412;(2012), 323 N.S.R.(2d) 330 (SC)

CFS v. B.L. (2012), 323 N.S.R.(2d) 330 (SC);

    1025 A.P.R. 330

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. DE.037

Mi'kmaw Family and Children's Services (applicant) v. L.I. and B.L. (respondents)

(SFPACFSA-065972; 2012 NSSC 412)

Indexed As: Mi'kmaw Family and Children's Services v. B.L. et al.

Nova Scotia Supreme Court

Family Division

Legere Sers, J.

December 12, 2012.

Summary:

The Nova Scotia Supreme Court, Family Division, in a judgment reported [2011] N.S.R.(2d) Uned. 91, awarded permanent care and custody of two young children to the Minister, with no order for access by the biological parents. The mother appealed.

The Nova Scotia Court of Appeal, in a judgment reported [2011] N.S.R.(2d) Uned. 265, affirmed the permanent care order, but remitted the matter of access for reconsideration.

The Nova Scotia Supreme Court, Family Division, awarded the parents specified access, limited to that needed to regulate inevitable contact between the parents and the children.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Guardian and Ward - Topic 825.3

Public trustee or guardian - Appointment - Access - Two young children were placed in permanent care - Access by the parents was denied - The children were placed with the father's aunt under a kinship/foster mother placement - On appeal, the matter of access was remitted to the court - The aunt had yet to file a Notice of Intention to Adopt (due to financial implications of losing subsidies for the children if they were adopted), but did plan to adopt in the future - In the 3.5 years the children were in her care, the children had "fairly extensive contact" with extended family, including the parents - The parents instigated unannounced and irregular visits with the children, which the aunt permitted in a supervised setting - At issue was whether access after permanent care was in the best interests of the children, especially where some contact between children and parents was inevitable and the aunt was not adverse to some access as long as it was structured and regulated - Section 47(2) of the Children and Family Services Act presumed no access after a permanent care order, but permitted access where the court was satisfied that, inter alia, "some other special circumstances justifies making an order for access" - The Nova Scotia Supreme Court, Family Division, stated that "'a special circumstance' under section 47(2)(d) may include a permanent placement with a family member, with a view to adoption by that family member, but involving some ongoing contact with the natural parent that was satisfactory to the adopting parents and which would not deter the adoption " - Neither parent presented sufficient evidence to determine whether access was in the best interests of the children - Since contact was inevitable, and given the aunt's intention of continuing to permit some visitation, the issue became how to regulate contact between the children and parents - The court held that "it is important that the foster mother, through the Agency, have a degree of control over any visits, to make decisions about how long they should last, how often and to observe and modify should visits become problematic from the children's perspective. ... The access is for the purpose of keeping the children aware of their biological parents and not to facilitate a parenting relationship" - The court set out general guidelines for access "to help the foster mother and the Agency to regulate the inevitable visits and promote the stability of the children's household making the visits more predictable in frequency and duration" - The parents were not "to initiate any other visitation unless agreed to in advance by the Agency in consultation with the foster mother" - See paragraphs 160 to 419.

Cases Noticed:

Nova Scotia (Minister of Community Services) v. C.B., [2012] N.S.R.(2d) Uned. 248; 2012 NSSC 358, refd to. [para. 5].

Children and Family Services of Colchester County v. K.T. (2010), 294 N.S.R.(2d) 379; 933 A.P.R. 379; 2010 NSCA 72, refd to. [para. 9].

Nova Scotia (Minister of Community Services) v. T.H. et al. (2010), 293 N.S.R.(2d) 200; 928 A.P.R. 200; 2010 NSCA 63, refd to. [para. 20].

Nova Scotia (Minister of Community Services) v. G.R. et al., [2011] N.S.R.(2d) Uned. 32; 2011 NSSC 88, refd to. [para. 21].

Nova Scotia (Minister of Community Services) v. L.H. et al., [2011] N.S.R.(2d) Uned. 18; 2011 NSSC 41, refd to. [para. 21].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 46].

Nouveau-Brunswick (Ministre de la Santé et des Services communautaires) v. M.L. et R.L. (1998), 230 N.R. 201; 204 N.B.R.(2d) 1; 520 A.P.R. 1 (S.C.C.), refd to. [para. 65].

Nova Scotia (Minister of Health) v. J.J., [2005] 1 S.C.R. 177; 331 N.R. 103; 231 N.S.R.(2d) 103; 733 A.P.R. 103, refd to. [para. 65].

S.G. v. Children's Aid Society of Cape Breton et al. (1996), 151 N.S.R.(2d) 1; 440 A.P.R. 1; 1996 CarswellNS 174 (C.A.), refd to. [para. 123].

Attorney General v. Prince Ernest Augustus of Hanover, [1957] A.C. 436 (H.L.), refd to. [para. 130].

Tabernacle Permanent Building Society v. Knight, [1892] A.C. 298 (H.L.), refd to. [para. 143].

Children's Aid Society of Cape Breton-Victoria v. A.M. (2005), 232 N.S.R.(2d) 121; 737 A.P.R. 121; 2005 NSCA 58, refd to. [para. 162].

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241, refd to. [para. 399].

Statutes Noticed:

Children and Family Services Act, S.N.S. 1990, c. 5, sect. 2(2) [para. 15]; sect. 3(2), sect. 3(3) [para. 16]; sect. 47(2) [para. 19].

Authors and Works Noticed:

Thompson, R., Annotation to Children and Family Services of Colchester County v. K.T. (2011), 98 R.F.L.(6th) 272, generally [para. 26].

Counsel:

Robert Crosby, Q.C., for the applicant;

Coline Morrow, for the respondent, L.I.;

Sam Moreau, for the respondent, B.L.

This matter was heard on July 5 and August 27, 2012, at Port Hawkesbury, N.S., before Legere Sers, J., of the Nova Scotia Supreme Court, Family Division, who delivered the following judgment on December 12, 2012.