New Brunswick (Minister of Social Development) v. S.D.N. et al., 2014 NBQB 46

Judge:DeWare, J.
Court:Court of Queen's Bench of New Brunswick
Case Date:February 05, 2014
Jurisdiction:New Brunswick
Citations:2014 NBQB 46;(2014), 416 N.B.R.(2d) 175 (FD)
 
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N.B. v. S.D.N. (2014), 416 N.B.R.(2d) 175 (FD);

    416 R.N.-B.(2e) 175; 1079 A.P.R. 175

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Temp. Cite: [2014] N.B.R.(2d) TBEd. FE.035

Renvoi temp.: [2014] N.B.R.(2d) TBEd. FE.035

The Minister of Social Development (applicant) v. S.D.N. and T.J.M. (respondents)

(FDC-116-13; 2014 NBQB 46; 2014 NBBR 46)

Indexed As: New Brunswick (Minister of Social Development) v. S.D.N. et al.

Répertorié: New Brunswick (Minister of Social Development) v. S.D.N. et al.

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Campbellton

DeWare, J.

February 18, 2014.

Summary:

Résumé:

The Minister of Social Development sought a permanent guardianship order under s. 56(1) of the Family Services Act regarding two children, who had been born in August 2009 and June 2011. The children had been in the Minister's care since September 2011. The children's mother and her former partner, who was not the children's father but had parented them, opposed the application. If the application was granted, the parents sought access.

The New Brunswick Court of Queen's Bench, Family Division, allowed the Minister's application and ordered that the parents were to have access to 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.

Family Law - Topic 2001.3

Custody and access - Access - Access to children under guardianship order - The Minister of Social Development sought a permanent guardianship order under s. 56(1) of the Family Services Act regarding two children, who had been born in August 2009 and June 2011 - The children had been in the Minister's care since September 2011 - The children's mother and her former partner, who was not the children's father but had parented them, opposed the application - If the application was granted, the parents sought access - The New Brunswick Court of Queen's Bench, Family Division, having allowed the Minister's application, ordered that the parents were to have access to the children - The reservation of a right of access following a permanent guardianship order was an exceptional order - This was an exceptional case where preserving rights of access did accord with the children's best interests - The experts were all clear in their evidence that there was a loving relationship between the parents and the children as well as a positive attachment - While the Minister objected to a right of access, no evidence has been provided to substantiate that position - There was no evidence to show that the children's ability to be adopted would be hampered by the parents' right of access - It was insufficient for the Minister to oppose the parents' request without providing an explanation and evidence to support that position - See paragraphs 95 to 104.

Guardian and Ward - Topic 815

Public trustee or guardian - Appointment - Child or adult in need of protection - Considerations (incl. best interests of child) - [See Guardian and Ward - Topic 816 ].

Guardian and Ward - Topic 816

Public trustee or guardian - Appointment - Child or adult in need of protection - Permanent appointment - The Minister of Social Development sought a permanent guardianship order under s. 56(1) of the Family Services Act regarding two children, who had been born in August 2009 and June 2011 - The children had been in the Minister's care since September 2011 - The children's mother and her former partner, who was not the children's father but had parented them, opposed the application - The New Brunswick Court of Queen's Bench, Family Division, allowed the Minister's application - As the children had been in custody for over 24 consecutive months, s. 55(2) of the Act provided that a decision had to be made - The court did not have the ability to provide additional time for the parents to address their problems - The overriding concern was the children's best interests - The mother's mental health issues were such that, despite her strong desire to be a parent, she simply did not have the ability to parent independently, safely or affectively - The mother's mental health challenges put the children at an untenable risk for emotional harm - The children had special needs that would require structure, planning and perseverance - The parents struggled to meet their own needs - They were unable to meet the children's mental, emotional and physical needs - The disruption to the children's sense of continuity, if they were returned to their mother, would be ongoing and pervasive - The disruption with adoption would eventually settle - The children's health and emotional well-being would be in jeopardy if they were returned to the mother's care - See paragraphs 71 to 94.

Guardian and Ward - Topic 825.3

Public trustee or guardian - Appointment - Access - [See Family Law - Topic 2001.3 ].

Droit de la famille - Cote 2001.3

Garde et accès - Accès - Accès auprès d'enfants faisant l'objet d'une ordonnance de tutelle - [Voir Family Law - Topic 2001.3 ].

Tutelle - Cote 815

Tuteur ou curateur public - Nomination - Enfant ou adulte ayant besoin de protection - Facteurs considérés (y compris le meilleur intérêt de l'enfant) - [Voir Guardian and Ward - Topic 815 ].

Tutelle - Cote 816

Tuteur ou curateur public - Nomination - Enfant ou adulte ayant besoin de protection - Nomination à titre permanent - [Voir Guardian and Ward - Topic 816 ].

Tutelle - Cote 825.3

Tuteur ou curateur public - Nomination - Accès - [Voir Guardian and Ward - Topic 825.3 ].

Cases Noticed:

New Brunswick (Minister of Family and Community Services) v. S.B. (2008), 327 N.B.R.(2d) 101; 840 A.P.R. 101 (C.A.), refd to. [para. 76].

New Brunswick (Minister of Social Development) v. G.B. et al. (2012), 392 N.B.R.(2d) 209; 1016 A.P.R. 209 (C.A.), refd to. [para. 85].

Nouveau-Brunswick (Ministre de la Santé et des Services communautaires) v. M.L. and R.L., [1998] 2 S.C.R. 534; 204 N.B.R.(2d) 1; 520 A.P.R. 1, refd to. [para. 96].

New Brunswick (Minister of Family and Community Services) v. T.L.M. et al. (2009), 341 N.B.R.(2d) 33; 876 A.P.R. 33; 2009 NBCA 8, refd to. [para. 101].

Counsel:

Avocats:

Andrée Poitras, for the applicant;

Michelle Boudreau-Dumas, for the respondent, S.D.N.;

T.J.M., per se.

This application was heard on January 14-17 and 21 and February 5, 2014, by DeWare, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Campbellton, who delivered the following decision on February 18, 2014.

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