J.N.C.-M. et al., Re, (2014) 451 Sask.R. 117 (CA)

• Judge: Jackson, Ottenbreit and Herauf, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: October 30, 2014
• Jurisdiction: Saskatchewan
• Citations: (2014), 451 Sask.R. 117 (CA);2014 SKCA 136

J.N.C.-M., Re (2014), 451 Sask.R. 117 (CA);

    628 W.A.C. 117

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JA.002

In The Matter Of a Hearing under the Child and Family Services Act

And In The Matter Of: J.N.C.-M., V.P.W., G.O.L.W., M.J.L.W., R.N.S.W., and A.W.

(CACV2372; 2014 SKCA 136)

Indexed As: J.N.C.-M. et al., Re

Saskatchewan Court of Appeal

Jackson, Ottenbreit and Herauf, JJ.A.

December 23, 2014.

Summary:

Ramona had legal custody of "Jane" (aged 16.5), "Violet" (aged 15), "George" (aged 13.5), "Michael" (aged 13.5), "Reena" (aged 11), and "Adam" (aged 8). The family had a lengthy involvement with the Minister of Social Services. The Minister apprehended the children and applied for an order under ss. 11(a) and 11(b) of the Child and Family Services Act and an order under s. 37(2) of the Act permanently committing all of the children, except Jane, to the custody of the Minister and thus making them eligible for adoption. With respect to Jane, the Minister applied for an order under s. 37(3) committing her to long-term care.

The Saskatchewan Court of Queen's Bench, Family Law Division, in a decision reported 411 Sask.R. 193, ordered that Jane be placed in long term foster care and the other children be placed permanently in the custody of the Minister. Ramona appealed, asserting that the children should not have been found in need of protection and that the orders were made in error.

The Saskatchewan Court of Appeal dismissed the appeal with respect to all of the children except Jane. With respect to Jane, the court allowed the appeal. However, as Jane was now 18, no further order was required.

Editor's Note: Certain names in the following case have been replaced by pseudonyms, initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's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 812.7

Public trustee or guardian - Appointment - Foster care - Ramona had legal custody of "Jane" (aged 16.5) and five younger children - The family had a lengthy involvement with the Minister of Social Services - The Minister apprehended the children and applied for an order under s. 37(3) of the Child and Family Services Act committing Jane to long-term care - The applications judge stated that Jane presented a problematic decision - She was almost 17 years old and was at the age where courts rarely made a custody order - She was progressing to obtaining her high school diploma, which was a basic necessity in today's world - Accommodating Jane's wishes to return to Romana's care would place that goal in jeopardy - The judge concluded that Jane was in need of protection in that removal from her foster home would put her at risk, particularly as it related to her education - The judge ordered that she be placed in long-term foster care - The Saskatchewan Court of Appeal allowed Ramona's appeal respecting Jane - The appropriate order had been under s. 37(1)(a) the Child and Family Services Act which allowed a child in need of protection to be returned to the parent - The court reached that conclusion for a number of reasons - Jane wanted to return to Ramona - She was significantly older than the other children - The concerns respecting Jane's schooling if she returned to live with Ramona were mitigated by the fact that Jane had, while in foster care, shown a commitment to attend school - Moreover, while Ramona might have been unable to be supportive of six children at once, it would be a fair inference that she might have been capable of reasonably supporting the schooling for one 17 year old daughter living with her - As Jane was now 18 years old, no further order was required - See paragraphs 53 and 57.

Guardian and Ward - Topic 815

Public trustee or guardian - Appointment - Child or adult in need of protection - Considerations (incl. best interest of child) - [See Guardian and Ward - Topic 812.7 ].

Guardian and Ward - Topic 815

Public trustee or guardian - Appointment - Child or adult in need of protection - Considerations (incl. best interest of child) - Ramona had legal custody of "Jane" (aged 16.5), "Violet" (aged 15), "George" (aged 13.5), "Michael" (aged 13.5), "Reena" (aged 11), and "Adam" (aged 8) - The family had a lengthy involvement with the Minister of Social Services - The Minister apprehended the children and applied for an order under ss. 11(a) and 11(b) of the Child and Family Services Act with respect to all the children except Jane - Ramona conceded that Violet and Reena might be considered children in need of protection - She acknowledged that they had been victims of sexual exploitation but asserted that she and the Minister should work towards returning them to her care - The Minister intended to take steps to ensure the children's continued access to Ramona - The applications judge allowed the Minister's application - Ramona's homemaking skills fell somewhere between adequate and awful, but were never considered as sufficient grounds to apprehend the children - She had an abysmal record of assessing the men in her life and home - That lack of sophistication or susceptibility had placed the girls in a position where they had been victims of sexual predation - The family dynamic of both the girls and the boys was troubling - Physical and sexual boundaries were unhealthy for the children and placed them at risk - Each child was, to some degree, maladaptive to a normal living and social environment - The children might be spared victimization with proper safety plans, but the critical element in any plan was Romana's self-awareness and discipline and her ability to apply common sense caution to create a tolerable home for the children - Her and the children's love for each other was not enough - The children required steady, predictable structure in their daily lives and routine - They had made great improvements in their ability to function while in foster care - No reasonable observer would conclude that placing them in Ramona's care would not expose them in some way to real risk - The children were in need of protection - Long term care was not in their best interests - They needed some permanency - It was important for them to know that they would not be returned to Ramona's care and could proceed to structure their lives on a go-forward basis, knowing that that was their reality - The Saskatchewan Court of Appeal affirmed the decision - However, attention had to be paid to the sprit of s. 3 of the Act in respect of promoting the children's well-being in relation to their family - The judge's decision posited that the Minister would continue to provide Ramona access to the children notwithstanding the termination of her parental rights - The court viewed with consternation the fact that Ramona had received only limited access to the children during their apprehension - Since a substantial and real continued connection between Ramona and the children underpinned the judge's orders, it was important that that "support" be generously interpreted conscious of the children's best interests - See paragraphs 54 to 56.

Guardian and Ward - Topic 815.9

Public trustee or guardian - Appointment - Child in need of protection - Opinion of child - [See Guardian and Ward - Topic 812.7 ].

Guardian and Ward - Topic 816

Public trustee or guardian - Appointment - Child or adult in need of protection - Permanent appointment - [See second Guardian and Ward - Topic 815 ].

Guardian and Ward - Topic 818.4

Public trustee or guardian - Appointment - Child in need of protection - Considerations - Education - [See Guardian and Ward - Topic 812.7 ].

Guardian and Ward - Topic 825.3

Public trustee or guardian - Appointment - Access - [See second Guardian and Ward - Topic 815 ].

Guardian and Ward - Topic 945

Public trustee or guardian - Appeals to courts (incl. judicial review) - Admission of "new evidence" - An order was issued placing Ramona's eldest child in long term foster care and her five other children permanently in custody of the Minister of Social Services - Ramona appealed and sought to admit further evidence respecting her efforts to develop her parenting skills and the circumstances and wishes of the children pursuant to s. 63(4) of the Child and Family Services Act - The Minister also sought to admit the affidavits of Leanne Berger and Lucy Davis - Berger attempted to address the issues set forth in Ramona's affidavit - She indicated that the children were doing well in their current placements - Davis's affidavit attached several reports prepared by psychologists setting out the results of assessments done on the children - The reports painted a picture of the children doing reasonably well in foster care but with some challenges - The Saskatchewan Court of Appeal concluded that "... the evidence of Ramona, except for the evidence respecting the wishes of the children and the affidavit of Lucy Davis, has met the four-fold test [for admissibility] given that the best interests of the children guide its admission. The further evidence of Leanne Berger will also be admitted on the basis it meets the test except for para. 12 thereof. This paragraph deals with the wishes of the children which are contradicted by the evidence of Ramona. The evidence of the wishes of the children cannot be said to be decisive since it is only one factor to be considered, and in this case would, in any event, not be decisive given the evidence as a whole." - However, even with the further evidence, it was not in the children's best interests to be returned to Ramona - If returned, they would be at risk in the same ways as in the past - There was no basis to interfere with the finding that the children were in need of protection - See paragraphs 45 to 51.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - [See Guardian and Ward - Topic 945 ].

Cases Noticed:

Eli et al., Re., [2012] 12 W.W.R. 468; 393 Sask.R. 57; 546 W.A.C. 57; 2012 SKCA 38, refd to. [para. 20].

B.L. v. Saskatchewan (Ministry of Social Services) - see Eli et al., Re.

Gallop v. Abdoulah et al., [2008] 5 W.W.R. 231; 311 Sask.R. 123; 428 W.A.C. 123; 2008 SKCA 29, refd to. [para. 20].

R. v. Kendall (S.) (2005), 200 O.A.C. 18; 75 O.R.(3d) 565 (C.A.), refd to. [para. 27].

Counsel:

Ammy Murray, for the mother, R.W.;

Leslie Belloc-Pinder, for the Ministry of Social Services.

This appeal was heard on October 30, 2014, by Jackson, Ottenbreit and Herauf, JJ.A., of the Saskatchewan Court of Appeal. Ottenbreit, J.A., delivered the following judgment for the court on December 23, 2014.