N.B. v. T.L.M.

• Jurisdiction: New Brunswick
• Court: Court of Appeal (New Brunswick)
• Judge: Turnbull, Richard and Bell, JJ.A.
• Neutral Citation: 2009 NBCA 8
• Citation: (2009), 341 N.B.R.(2d) 33 (CA),2009 NBCA 8,341 NBR (2d) 33,[2009] NBJ No 19 (QL),[2009] N.B.J. No 19 (QL),(2009), 341 NBR(2d) 33 (CA),341 N.B.R.(2d) 33,341 NBR(2d) 33
• Date: 18 November 2008

N.B. v. T.L.M. (2009), 341 N.B.R.(2d) 33 (CA);

    341 R.N.-B.(2e) 33; 876 A.P.R. 33

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2009] N.B.R.(2d) TBEd. FE.007

Renvoi temp.: [2009] N.B.R.(2d) TBEd. FE.007

T.L.M. (Per Her Litigation Guardian) (respondent/appellant) v. Department of Social Development (Formerly the Minister of Family and Community Services) (applicant/respondent)

(39-08-CA; 2009 NBCA 8)

Indexed As: New Brunswick (Minister of Family and Community Services) v. T.L.M. et al.

Répertorié: New Brunswick (Minister of Family and Community Services) v. T.L.M. et al.

New Brunswick Court of Appeal

Turnbull, Richard and Bell, JJ.A.

January 29, 2009.

Summary:

Résumé:

The Minister of Family and Community Services sought guardianship of a young child pursuant to s. 56(1) of the Family Services Act. The mother was mentally challenged and resided with her parents and younger siblings. She argued that she was capable of parenting the child with the assistance of her family and boyfriend. Alternatively, she requested that a right of access to her be preserved for the child. The child's father was in agreement with guardianship.

The New Brunswick Court of Queen's Bench, Family Division, in a decision reported at 328 N.B.R.(2d) 334; 841 A.P.R. 334, granted the guardianship order and refused to include a right of access. The mother appealed respecting the trial judge's refusal to make access a condition of the guardianship order.

The New Brunswick Court of Appeal dismissed the appeal.

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 583

Judges - Duties - Re reasons for decisions - The Minister of Family and Community Services sought guardianship of a young child - The child was apprehended shortly after birth and placed in foster care because the mother was unable to parent the child - The mother was mentally challenged and resided with her parents and younger siblings - The trial judge granted the guardianship order - The mother was unable to adequately parent the child on her own due to her cognitive limitations - She could not ensure the security and safety to which the child was entitled - There were also concerns about the mother's home - The trial judge also refused to make access to the biological parents a condition of the guardianship order, concluding that it was not in the child's best interests - The mother appealed - She argued that the trial judge did not give adequate reasons for her decision respecting the access issue - She alleged that the reasons were limited to three sentences and were deficient because they did not explain why access would not be in the child's best interests - This deficiency precluded meaningful appellate review - The New Brunswick Court of Appeal rejected the argument - The reasons, considered in conjunction with the evidentiary record, the submissions of counsel and the live issues at the trial, revealed the basis for the verdict reached - The trial judge seized the substance of the critical issues that were raised at trial - See paragraphs 7 to 15.

Guardian and Ward - Topic 825.3

Public trustee or guardian - Appointment - Access - The Minister of Family and Community Services sought guardianship of a young child - The child was apprehended shortly after birth and placed in foster care because the mother was unable to parent the child - The mother was mentally challenged and resided with her parents and younger siblings - The trial judge granted the guardianship order - Despite 18 months of hands on training, the mother was unable to adequately parent the child on her own due to her cognitive limitations - She could not ensure the security and safety to which the child was entitled - There were also concerns about the mother's home - The trial judge also refused to make access to the biological parents a condition of the guardianship order, concluding that it was not in the child's best interests - The mother appealed respecting the access issue - The New Brunswick Court of Appeal dismissed the appeal - The trial judge applied the correct legal test and reviewed the factors to be considered in determining the best interests of the child - The court stated that, considering that access was the exception and not the rule, that adoption was in this child's best interests, and that it would likely be hampered by the existence of a right of access, it could not be said the preservation of family ties outweighed the other factors - There was also no evidence that access would have negative effects on the child's physical or psychological health - There was no indication of any irrelevant factor infiltrating itself into her reasons for decision and there was factual support for her conclusion that it would not be in the child's best interests to order access - See paragraphs 14 and 16 to 18.

Guardian and Ward - Topic 908

Public trustee or guardian - The hearing - Reasons for decision - [See Courts - Topic 583 ].

Tribunaux - Cote 583

Juges - Devoirs - Motifs de décision - [Voir Courts - Topic 583 ].

Tutelle - Cote 825.3

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

Tutelle - Cote 908

Tuteur ou curateur public - L'audience - Motifs de décision - [Voir Guardian and Ward - Topic 908 ].

Cases Noticed:

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. 1].

R. v. D.R., H.R. and D.W., [1996] 2 S.C.R. 291; 197 N.R. 321; 144 Sask.R. 81; 124 W.A.C. 81, refd to. [para. 8].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 8].

R. v. Walker (B.G.) (2008), 375 N.R. 228; 310 Sask.R. 305; 423 W.A.C. 305; 2008 SCC 34, refd to. [para. 8].

J.C. and A.C. v. Children's Aid Society of Cape Breton-Victoria (2005), 239 N.S.R.(2d) 132; 760 A.P.R. 132; 2005 NSCA 161, refd to. [para. 9].

D.M.G. v. Director of Family and Child Services (B.C.), [2007] B.C.T.C. Uned. C35; 2007 BCSC 461, leave to appeal refused [2007] B.C.A.C. Uned. 101; 2007 BCCA 415, refd to. [para. 9].

Blanchard v. Légère (2009), 339 N.B.R.(2d) 357; 870 A.P.R. 357; 2009 NBCA 2, refd to. [para. 9].

R. v. R.E.M. (2008), 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 10].

New Brunswick (Minister of Social Services) v. G.C.C., [1988] 1 S.C.R. 1073; 85 N.R. 10; 85 N.B.R.(2d) 252; 217 A.P.R. 252, refd to. [para. 16].

Counsel:

Avocats:

Danielle Bastarache, for the appellant;

Catherine A. Berryman, for the respondent.

This appeal was heard on November 18, 2008, by Turnbull, Richard and Bell, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the Court of Appeal was delivered in both official languages by Richard, J.A., on January 29, 2009.