I.C. et al. v. Children's Aid Society of Shelburne County et al.,

• Jurisdiction: Nova Scotia
• Judge: Bateman, Hallett and Oland, JJ.A.
• Neutral Citation: 2001 NSCA 108
• Citation: 2001 NSCA 108,(2001), 196 N.S.R.(2d) 70 (CA),19 RFL (5th) 243,[2001] CarswellBC 2000,196 NSR (2d) 70,196 NSR(2d) 70,(2001), 196 NSR(2d) 70 (CA),196 N.S.R.(2d) 70
• Date: 15 June 2001
• Court: Court of Appeal of Nova Scotia (Canada)

I.C. v. CAS (2001), 196 N.S.R.(2d) 70 (CA);

 613 A.P.R. 70

MLB headnote and full text

Temp. Cite: [2001] N.S.R.(2d) TBEd. JL.013

I.C. and H.R.C. (appellants) v. Children's Aid Society of Shelburne County (respondent)

C.A. and D.S. (appellants) v. Children's Aid Society of Shelburne County (respondent)

(CA 170194; CA 160632; 2001 NSCA 108)

Indexed As: I.C. et al. v. Children's Aid Society of Shelburne County et al.

Nova Scotia Court of Appeal

Bateman, Hallett and Oland, JJ.A.

July 4, 2001.

Summary:

B.J.S. was placed with foster parents short­ly after her birth. When she was one year old the biological parents consented to per­manent care of B.J.S. if the foster parents would consent to adopt her. The foster parents agreed. An order for permanent care was issued. The foster parents were approved for adoption. The foster parents applied under s. 36(1)(f) of the Children and Family Services Act to become parties to the child protection proceedings which had resulted in the permanent care order.

The Nova Scotia Family Court, in a de­cision not reported in this series of reports, dismissed the application. Thereafter, the Children's Aid Society advised the foster parents that they were no longer acceptable as foster or adoptive parents. B.J.S.'s bio­logical parents applied for leave to apply to terminate the permanent care order. The foster parents applied under s. 36(4) to be added as parties to the termination appli­cation should leave be granted.

The Nova Scotia Family Court, in a de­cision not reported in this series of reports, dismissed the applications. The biological parents appealed. The foster parents appealed the dismissal of their s. 36(1)(f) application.

The Nova Scotia Court of Appeal allowed the foster parents' appeal and ordered that they be joined as parties to the child welfare proceedings pursuant to s. 36(1). The court dismissed the biological parents' appeal.

Guardian and Ward - Topic 812

Public trustee or guardian - Appointment - Parties - Section 36(1)(f) of the Children and Family Services Act provided for the addition of a party "at any stage in the proceeding" - The Nova Scotia Court of Appeal stated that the fact that the protec­tion proceeding has been concluded and, in that sense, was not active was not a bar to being added under s. 36(1)(f) - A "pro­ceeding" existed after the issuance of a permanent care order to the extent neces­sary to apply for party status - Were that not the case, no one could be added as a party after the granting of the permanent care order, unless a termination application was in progress - See paragraph 24.

Guardian and Ward - Topic 812

Public trustee or guardian - Appointment - Parties - The Nova Scotia Court of Appeal stated that "[f]oster parents are generally not parties to the initial protection proceed­ing [under the Child and Family Services Act (CFSA)]. Once a permanent care order has been granted and termination of that order is sought, however, the CFSA, in s. 36(4), contemplates a role for foster parents, as of right. The CFSA provides, as well, that a court can grant to foster parents an expanded role in a termination proceeding. A foster parent is not, how­ever, precluded expressly or by implication from being joined as a party to the pro­ceeding. Had the Legislature so intended it could have said so in simple terms." - See paragraph 25.

Guardian and Ward - Topic 812

Public trustee or guardian - Appointment - Parties - The Nova Scotia Court of Appeal stated that a person who does not partici­pate in the original child protection pro­ceeding under the Child and Family Ser­vices Act, but was a candidate to care for the child could apply to be joined as a party under s. 36(1)(f) of the Act for the purpose of commencing a termination application - See paragraph 26.

Guardian and Ward - Topic 812

Public trustee or guardian - Appointment - Parties - The Nova Scotia Court of Appeal stated that "the structure of the CFSA [Child and Family Services Act] leaves open the possibility of latecomers applying to terminate the permanent care order. The fact that the [applicant foster parents] were not parties to the original protection pro­ceeding is not a disentitling factor. That said, ... foster parents should not routinely be permitted to join a protection proceed­ing. This is particularly so before a perma­nent care order is made. To do so would bring about an undesirable level of com­plexity and delay and undermine the foster parenting system which is central to the Agency's work. None of this would be consistent with a child's best interests. ... I am satisfied, however, that by providing for a termination procedure and, particular­ly, by not limiting those who might so apply to the parents, former caretakers or the agency, the CFSA intends that the court retain a supervisory role" - See para­graphs 45 and 46.

Guardian and Ward - Topic 812

Public trustee or guardian - Appointment - Parties - Shortly after her birth, B.J.S. was placed with foster parents - An order for permanent care was issued - The foster parents were approved to adopt B.J.S. - The foster parents applied under s. 36(1)(f) of the Children and Family Services Act to become parties to the child protection proceedings for the purpose of applying for leave to terminate the permanent care order - The trial judge dismissed the application - Thereafter, the Children's Aid Society advised the foster parents that they were no longer acceptable as foster or adoptive parents because of concerns over the sta­bility of their marriage and sexual abuse by a member of their extended family - B.J.S, now 3.5 years old, had special needs which the foster parents had been able to meet - The Nova Scotia Court of Appeal held that the trial judge erred in dismissing the foster parents' s. 36(1)(f) application given their connection to B.J.S. and the requirement that the court's decision be guided by B.J.S.'s best interests.

Guardian and Ward - Topic 815

Public trustee or guardian - Appointment - Child or adult in need of protection - Considerations - Best interests of child - [See fifth Guardian and Ward - Topic 812 ].

Guardian and Ward - Topic 815

Public trustee or guardian - Appointment - Child or adult in need of protection - Considerations - Best interests of child - Section 48(10)(b) of the Children and Family Services Act provided that "[b]e­fore making an order pursuant to subsec­tion (8), the court shall consider ... the child's best interests" - The Nova Scotia Court of Appeal stated that "[o]nce a per­manent care order has been made there is a shifting of focus to the best interests of the child, not in the context of the child and a hypothetical care giver offered as an alternative to the parent, but taking into account the new environment the child has come to know." - See paragraph 34.

Guardian and Ward - Topic 944

Public trustee or guardian - Appeals to courts - Nature and scope of - [See fourth Guardian and Ward - Topic 812 ].

Cases Noticed:

C.G. and M.G. v. Catholic Children's Aid Society of Hamilton-Wentworth (1998), 110 O.A.C. 338; 161 D.L.R.(4th) 466 (C.A.), refd to. [para. 25].

Children's Aid Society of Metropolitan Toronto v. D.S., [1991] O.J. No. 1384 (Prov. Div.), refd to. [para. 28].

Catholic Children's Aid Society of Metro­politan Toronto v. C.M., [1994] 2 S.C.R. 165; 165 N.R. 161; 71 O.A.C. 81, refd to. [para. 30].

E.P. v. British Columbia (Superintendent of Family and Child Services) (1988), 12 R.F.L.(3d) 405; 1988 CarswellBC 67 (B.C.C.A.), refd to. [para. 38].

H.G. v. British Columbia (Superintendent of Family and Child Service), [1987] B.C.J. No. 336 (S.C.), refd to. [para. 41].

M.A.F. v. Southeast Child and Family Services, [2000] 10 W.W.R. 479; 2000 CarswellMan 400 (Q.B.), refd to. [para. 41].

Children's Aid Society of Winnipeg (City) v. Maendel, [1977] 4 W.W.R. 606; 1977 CarswellMan 61 (C.A.), refd to. [para. 41].

M.A.S., Re, [1999] Nu.J. No. 3 (Ct. Jus), refd to. [para. 41].

N.P., Re, [2001] O.J. No. 441 (Sup. Ct.), refd to. [para. 41].

C.M. v. Children's Aid Society of the Regional Municipality of Ottawa-Carle­ton, [1994] O.J. No. 1570 (Prov. Div.), refd to. [para. 41].

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, refd to. [para. 47].

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. 47].

Children's Aid Society of Cape Breton v. L.M. and B.M. (1999), 177 N.S.R.(2d) 25; 542 A.P.R. 25 (C.A.), refd to. [para. 48].

D.L.G. v. Family and Children's Services of Kings County et al. (1994), 136 N.S.R.(2d) 131; 388 A.P.R. 131 (Fam. Ct.), refd to. [para. 48].

Gray v. Gray (1995), 137 N.S.R.(2d) 161; 391 A.P.R. 161 (Fam. Ct.), refd to. [para. 51].

Statutes Noticed:

Children and Family Services Act, S.N.S. 1990, c. 5, sect. 36(4) [para. 18]; sect. 48(3) [para. 15]; sect. 48(10) [para. 32].

Authors and Works Noticed:

Thompson, D.A. Rollie, The Annotated Children and Family Services Act (1991), pp. 125 [para. 22]; 248 [para. 23].

Counsel:

Johanne L. Tournier, for the appellants, I.C. and H.R.C.;

Timothy D. Landry, for the appellants, C.A. and D.S.;

Donald G. Harding, for the respondent.

This appeal was heard on June 15, 2001, by Bateman, Hallett and Oland, JJ.A., of the Nova Scotia Court of Appeal. Bateman, J.A., delivered the following reasons for judgment of the court on July 4, 2001.