Children and Family Services of Colchester County v. K.T., 2010 NSCA 72

• Judge: MacDonald, C.J.N.S., Fichaud and Farrar, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 25, 2010
• Jurisdiction: Nova Scotia
• Citations: 2010 NSCA 72;(2010), 294 N.S.R.(2d) 379 (CA)

CFS v. K.T. (2010), 294 N.S.R.(2d) 379 (CA);

    933 A.P.R. 379

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. SE.009

Children and Family Services of Colchester County (appellant) v. K.T. (respondent)

(CA 325959; 2010 NSCA 72)

Indexed As: Children and Family Services of Colchester County v. K.T.

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Fichaud and Farrar, JJ.A.

September 9, 2010.

Summary:

A Children and Family Services Agency applied for orders for permanent care and custody in relation to B.T. (born in 2001) and D.H. (born in 2003). The Agency's plan for the children was that they be adopted.

The Nova Scotia Supreme Court, in a decision not reported in this series of reports, ordered that B.T. and D.H. be placed in the permanent care and custody of the Agency. The court ordered parental access for the mother, kinship access and sibling access, on the basis that B.T. and D.H. had established strong bonds with each other, their biological mother and their extended family. The Agency appealed.

The Nova Scotia Court of Appeal, on the correctness standard, allowed the appeal and rescinded the access provisions. The disposition judge "applied pre-permanent care priorities to the post-permanent care end of the process. This lured him into reversible error". The access provisions impaired the children's opportunities for an alternate permanent placement. Based on the extensive record, the court decided that special circumstances did not justify an access order under s. 47(2) of the Children and Family Services Act.

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.

Courts - Topic 1781

Powers - Guardianship - General - At issue on this appeal was parental access in conjunction with a permanent care order - The Nova Scotia Court of Appeal conducted a review of the legal principles respecting a child's best interests under the Children and Family Services Act (CFSA) - "[A] trial judge must work within the operative statute ... [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. That said, there may be topics and occasions when a judge can fill in a gap in the CFSA's standards of best interests. As well, there may be a regime where a legislative void allows even greater scope. In Nova Scotia, one such regime is in the field of adult protection ... As well, superior court judges in Canada possess a residual parens patriae jurisdiction to protect the best interests of children but, again, that power is limited to the filling of legislative gaps (and judicial review) ... [W]hile 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" - See paragraphs 24 to 34.

Courts - Topic 1782

Powers - Guardianship - Courts with parens patriae jurisdiction - [See Courts - Topic 1781 ].

Courts - Topic 1801

Powers - Guardianship - Infants - General - [See Courts - Topic 1781 ].

Guardian and Ward - Topic 803

Public trustee or guardian - Legislation - [See first, second and third Guardian and Ward - Topic 825.3 ].

Guardian and Ward - Topic 807

Public trustee or guardian - Jurisdiction - Parens patriae - [See Courts - Topic 1781 ].

Guardian and Ward - Topic 812.5

Public trustee or guardian - Appointment - Permanent guardian of children - Effect of - [See all Guardian and Ward - Topic 825.3 ].

Guardian and Ward - Topic 815

Public trustee or guardian - Appointment - Child or adult in need of protection - Considerations (incl. best interests of child) - [See Courts - Topic 1781 ].

Guardian and Ward - Topic 823

Public trustee or guardian - Appointment - Appeals - [See first Guardian and Ward - Topic 944 ].

Guardian and Ward - Topic 825.3

Public trustee or guardian - Appointment - Access - At issue on this appeal was parental access in conjunction with a permanent care order - The Nova Scotia Court of Appeal considered the Children and Family Services Act (CFSA) and highlighted the legislature's "shift in priority" when it came to access - "[W]hen 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 ... and the focus becomes a stable alternate plan. Thus, upon securing a permanent care order, the Agency under the CFSA effectively becomes the parent ... 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" - See paragraphs 35 to 38.

Guardian and Ward - Topic 825.3

Public trustee or guardian - Appointment - Access - The Nova Scotia Court of Appeal considered the Legislature's intention under the Children and Family Services Act when it came to the granting of access after an order for permanent care - From the court's reading of s. 47, three conclusions were: "First, the Agency effectively replaced 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 under 12. Section 47(2)(c) is consistent with this. It provides that if no adoption is planned then access will be available. This highlights the importance of adoption as the new goal and the risk that access may pose to adoption. Third, for children under 12, the 'some other special circumstance' contemplated in s. 47(2)(d), must be one that will not impair permanent placement opportunities" - See paragraph 39.

Guardian and Ward - Topic 825.3

Public trustee or guardian - Appointment - Access - Section 47(2)(d) of the Nova Scotia Children and Family Services Act read that "47(2) Where an order for permanent care and custody is made, the court may make an order for access by a parent or guardian or other person, but the court shall not make such an order unless the court is satisfied that (d) some other special circumstance justifies making an order for access" - The Nova Scotia Court of Appeal stated that "to rely on s. 47(2)(d) as the judge did in this appeal, the (special) circumstances must be such that would not impair a future permanent placement ... 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 best interest. This represents a clear legislative choice to which the judiciary must defer" - The court referred to similar pronouncements it had made in the past - In the end result, the court held that the judge in this appeal ignored the statutory prerequisite when making his access order - The court struck the access provisions - See paragraphs 40 to 43.

Guardian and Ward - Topic 825.3

Public trustee or guardian - Appointment - Access - A disposition judge ordered that two children be placed in the permanent care and custody of the Children and Family Services Agency, and ordered access for the mother, kinship access and sibling access - The Agency appealed the access order - The Nova Scotia Court of Appeal observed that, in reading the entire decision, it was clear that the judge felt it to be in the children's best interests to maintain the status quo - That reasoning was incongruent with the scheme of the Children and Family Services Act - The status quo was a regime of temporary care - Further, an order that perpetuated foster care effectively pre-empted adoption - Yet, a disposition hearing judge had no ability to make such an order - That approach would also have the effect of extending a temporary care order beyond the clear statutory time limits - On that "insecure footing", the judge assessed the merits of an access order - Further, he at no time addressed the "very limited application" of s. 47(2) of the Act, which allowed for access in special circumstances - Instead, he simply embarked on a "best interests" analysis that ignored the prerequisites set out in s. 47(2) - See paragraphs 44 to 47.

Guardian and Ward - Topic 825.3

Public trustee or guardian - Appointment - Access - A disposition judge ordered that B.T. and D.H. be placed in the permanent care and custody of the Children and Family Services Agency - He further ordered access for the mother, kinship access and sibling access, on the basis that B.T. and D.H. had established strong bonds with each other, their biological mother and their extended family - The Nova Scotia Court of Appeal held that the judge ordered access "without paying meaningful consideration to the legislative directives set out in s. 47(2)" of the Children and Family Services Act (CFSA) - The judge's "ten points" ran "totally contrary to the scheme of the legislation", and specifically to s. 47(2) which directed that access should yield to alternate permanent placements, the most common of which was adoption - The trial judge "clearly de-prioritizes adoption against the return of the family unit. This, in fact, contradicts the definition of 'best interests' in s. 3(3) of the CFSA" - See paragraphs 47 to 55.

Guardian and Ward - Topic 825.3

Public trustee or guardian - Appointment - Access - A disposition judge ordered that two children be placed in the permanent care and custody of the Children and Family Services Agency - He further found it to be in the children's best interest for them to have continued access to their mother and other family members - The Nova Scotia Court of Appeal struck the access provisions - It would be "completely impractical" to remit the matter to the trial court - Instead, based on the extensive record, the court decided that special circumstances did not justify an access order under s. 47(2) of the Children and Family Services Act - "The Agency's plan is for adoption and having received a permanent care order, that is its decision to make. It is equally clear that an access order would impair this proposed future placement ... The judge acknowledged this when apparently accepting the evidence of [the] Adoption Supervisor" - The access provisions impaired the children's opportunities for an alternate permanent placement - See paragraphs 60 to 66.

Guardian and Ward - Topic 944

Public trustee or guardian - Appeals to courts (incl. judicial review) - Nature and scope of - A disposition judge ordered that two children be placed in the permanent care and custody of the Children and Family Services Agency - He further found it to be in the children's best interest for them to have continued access to their mother and other family members - The Agency appealed the access provisions - The Nova Scotia Court of Appeal applied a correctness standard - "We accord trial judges significant deference when reviewing their factual conclusions. The same applies for exercises of discretion ... Here, although the decision to grant access is a discretionary one commanding deference, the issue for us is whether the judge properly interpreted the statutory provisions allowing for this type of relief. That is a question of law which I will review on the correctness standard" - See paragraphs 22 and 23.

Guardian and Ward - Topic 944

Public trustee or guardian - Appeals to courts (incl. judicial review) - Nature and scope of - A disposition judge ordered that two children be placed in the permanent care and custody of the Children and Family Services Agency - He further found it to be in the children's best interest for them to have continued access to their mother and other family members - The Nova Scotia Court of Appeal struck the access provisions - It would be "completely impractical" to remit the matter to the trial court - Instead, based on the extensive record, the court decided that special circumstances did not justify an access order under s. 47(2) of the Children and Family Services Act - "The Agency's plan is for adoption and having received a permanent care order, that is its decision to make. It is equally clear that an access order would impair this proposed future placement ... The judge acknowledged this when apparently accepting the evidence of [the] Adoption Supervisor" - The access provisions impaired the children's opportunities for an alternate permanent placement - See paragraphs 60 to 66.

Cases Noticed:

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, consd. [para. 2].

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, appld. [para. 22].

Adams and Adams v. McLeod and Ramstead, [1978] 2 S.C.R. 621; 20 N.R. 203; 9 A.R. 1, refd to. [para. 26].

New Brunswick (Minister of Health and Community Services) v. M.L. - see Nouveau-Brunswick (Ministre de la Santé et des Services communautaires) v. M.L. et R.L.

Nouveau-Brunswick (Ministre de la Santé et des Services communautaires) v. M.L. et R.L., [1998] 2 S.C.R. 534; 230 N.R. 201; 204 N.B.R.(2d) 1; 520 A.P.R. 1, consd. [para. 27].

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; 2005 SCC 12, refd to. [para. 30].

Nova Scotia (Minister of Health) v. J.J. (2001), 193 N.S.R.(2d) 13; 602 A.P.R. 13; 2001 NSSF 12, refd to. [para. 30].

Nova Scotia (Minister of Community Services) v. N.N.M. and R.D.M. (2008), 268 N.S.R.(2d) 109; 857 A.P.R. 109; 2008 NSCA 69, refd to. [para. 33].

Beson et al. v. Director of Child Welfare (Nfld.), [1982] 2 S.C.R. 716; 44 N.R. 602; 39 Nfld. & P.E.I.R. 246; 111 A.P.R. 246, refd to. [para. 33].

Children's Aid Society of Cape Breton-Victoria v. M.H. et al. (2008), 269 N.S.R.(2d) 17; 860 A.P.R. 17; 2008 NSSC 242 (Fam. Div.), refd to. [para. 40].

A.J.G. v. Children's Aid Society of Pictou County (2007), 256 N.S.R.(2d) 173; 818 A.P.R. 173; 2007 NSCA 78, refd to. [para. 42].

Children's Aid Society and Family Services of Colchester County v. E.Z. et al. (2007), 258 N.S.R.(2d) 311; 824 A.P.R. 311; 2007 NSCA 99, refd to. [para. 42].

Statutes Noticed:

Children and Family Services Act, S.N.S. 1990, c. 5, sect. 47(1) [para. 37]; sect. 47(2) [para. 38].

Counsel:

S. Raymond Morse, Q.C., and Sarah Lennerton, for the appellant;

Anne MacL. Malick, Q.C., and Amber Snow, for the respondent;

Peter C. McVey, for the Minister of Community Services (Intervenor).

This appeal was heard in Halifax, N.S., on June 25, 2010, by MacDonald, C.J.N.S., Fichaud and Farrar, JJ.A., of the Nova Scotia Court of Appeal. In reasons written by MacDonald, C.J.N.S., the Court of Appeal delivered the following judgment and reasons for judgment, dated September 9, 2010.