New Brunswick (Minister of Social Development) v. V.C., (2015) 435 N.B.R.(2d) 205 (CA)

• Judge: Larlee, Deschênes and Quigg, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: January 13, 2015
• Jurisdiction: New Brunswick
• Citations: (2015), 435 N.B.R.(2d) 205 (CA);2015 NBCA 28

N.B. v. V.C. (2015), 435 N.B.R.(2d) 205 (CA);

    435 R.N.-B.(2e) 205; 1134 A.P.R. 205

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]

.........................

Temp. Cite: [2015] N.B.R.(2d) TBEd. MY.010

Renvoi temp.: [2015] N.B.R.(2d) TBEd. MY.010

V.C. (appellant) v. The Minister of Social Development and J.C. (respondents)

J.C. (appellant) v. The Minister of Social Development and V.C. (respondents)

(51-14-CA; 2015 NBCA 28)

Indexed As: New Brunswick (Minister of Social Development) v. V.C.

Répertorié: New Brunswick (Minister of Social Development) v. V.C.

New Brunswick Court of Appeal

Larlee, Deschênes and Quigg, JJ.A.

April 30, 2015.

Summary:

Résumé:

The Minister of Social Development brought an application under the Family Services Act for permanent custody ("guardianship") of five children, aged between two and 11. If guardianship was granted the Minister would place them for adoption. The mother of the children was 28 years old. She wanted the children returned to her care. The maternal grandmother was 58 years old and had health problems. She applied for custody of the two oldest children and, if the Minister was successful regarding the three youngest, she also sought some access to them. However, her preference was for all five children to be returned to their mother's care. The father of the two oldest children consented to guardianship. The father of the three youngest did not attend.

The New Brunswick Court of Queen's Bench, Family Division, in a decision reported at (2014), 418 N.B.R.(2d) 353; 1087 A.P.R. 353, granted guardianship to the Minister. The court preserved access for the children to the mother, maternal grandmother and each other, with the form, place, frequency and extent thereof to be determined by the Minister in accordance with each child's "best interest". No access for the children to the fathers was preserved. The mother and maternal grandmother each brought an appeal.

The New Brunswick Court of Appeal dismissed the appeals.

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 592

Judges - Duties - Duty to conduct fair and impartial proceedings - An application judge granted guardianship of five children, aged between two and 11 to the Minister, who intended to place them for adoption - The mother and maternal grandmother appealed, submitting, inter alia, that the application judge's interference in the conduct of the trial compromised procedural fairness and judicial impartiality - The New Brunswick Court of Appeal rejected the submissions - Although the application judge frequently interfered, the interruptions did not affect the trial's outcome - They appeared to have been made in an attempt to reduce irrelevant and repetitious cross-examination - The judge intervened during three lines of questioning by the mother's and maternal grandmother's counsel, relating to: 1) the taking of protective care, 2) use of standards by the social workers, and 3) what the social workers thought the mother knew - The judge did not limit the questioning and gave counsel proper opportunity to respond to his concerns - Furthermore, he reversed a ruling he had made respecting questions advanced by the grandmother's counsel - This demonstrated an appropriate intention by the judge to allow the parties to fully explore their lines of questioning - The judge clearly addressed the issues that counsel attempted to deal with in these three specific areas and found that they were not relevant to the determination of what was in the best interests of the children - As the Court of Appeal had repeatedly said, the best interests of the child (from a child-centred perspective) was the sole test used to determine child custody - A more hands-off approach would have been appropriate where the parties were not self-represented but represented by two experienced counsel who worked in the Family Division; neverthleless, the judge did not err in interfering more than was advisable - See paragraphs 9 to 15.

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 815.9

Public trustee or guardian - Appointment - Child in need of protection - Opinion of child - [See Guardian and Ward - Topic 816 ].

Guardian and Ward - Topic 816

Public trustee or guardian - Appointment - Child in need of protection - Permanent appointment - The Minister sought guardianship of five children, aged between two and 11, who intended to place them for adoption - The children's mother was 28 years old - She wanted the children returned to her care - The maternal grandmother was 58 and had health problems - She applied for custody of the two oldest children and, if the Minister was successful regarding the three youngest, she also sought some access to them - However, her preference was for all five children to be returned to their mother - The father of the two oldest children consented to guardianship - The father of the three youngest did not attend - The children had been born into a milieu of criminality (including domestic violence), substance abuse, chronic instability, and neglect - The application judge awarded guardianship to the Minister - The Minister's plan afforded the best opportunity for all of the children's "best interests" to be met at this stage of their lives and for the foreseeable future - The judge preserved access for the children to the mother, maternal grandmother and each other, with the form, place, frequency and extent thereof to be determined by the Minister in accordance with each child's "best interest" - No access for the children to the fathers was preserved - The mother and maternal grandmother appealed - The New Brunswick Court of Appeal dismissed the appeal - The court held, inter alia, that the judge did consider the mother's attempts to meet the Minister's requirements and he weighed the views and preferences of the children where such views and preferences could be reasonably ascertained - See paragraphs 22 to 35.

Guardian and Ward - Topic 823

Public trustee or guardian - Appointment - Appeals - The New Brunswick Court of Appeal referred to jurisprudence regarding the standard of review that governed guardianship cases - The court held that the jurisprudence instructed that the scope of appellate review with respect to these types of cases was quite narrow and, in the absence of material error such as a serious misapprehension of the evidence or an error of law, deference had to be shown to the application judge - See paragraphs 7 to 8.

Practice - Topic 8820

Appeals - General principles - Duty of appellate court re findings of credibility by trial judge - An application judge granted guardianship of five children, aged between two and 11, to the Minister, who intended to place them for adoption - The mother and maternal grandmother appealed, submitting, inter alia, that the application judge erred in law when he made determinations during the course of the trial respecting relevancy, making such statements as "even if you at the highest demonstrated here that the Minister fraudulently deceived the mother" "- how does that bear on my decision" - The mother argued that such statements indicated a lack of impartiality, and the judge erred in so asserting as he impeded her counsel's ability to test the evidence and credibility of the Minister's witnesses - Further, these statements gave the appearance that the credibility of the Minister's key witnesses was beyond reproach - The New Brunswick Court of Appeal held that the judge's comments, though not reflecting the best choice of words, were merely an attempt to illustrate a point using an extreme hypothetical - The judge did not believe what he was saying to be reflective of the truth - The judge's interventions were attempts to have counsel focus on what was important to the decision making process - Credibility findings were to be given great deference by appellate courts - The court found no error respecting the judge's credibility findings - See paragraphs 16 to 21.

Procédure - Cote 8820

Appel - Devoir d'une cour d'appel relativement aux conclusions de crédibilité par le juge du procès - [Voir Practice - Topic 8820 ].

Tribunaux - Cote 592

Juges - Devoirs - Tenir des audiences équitables et impartiales - [Voir Courts - Topic 592 ].

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 815.9

Tuteur ou curateur public - Nomination - Enfant ayant besoin de protection - Opinion de l'enfant - [Voir Guardian and Ward - Topic 815.9 ].

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 823

Tuteur ou curateur public - Nomination - Appels - [Voir Guardian and Ward - Topic 823 ].

Cases Noticed:

New Brunswick (Minister of Family and Community Services) v. S.B., [2006] N.B.R.(2d) Uned. 64; 2006 NBCA 41, appld. [para. 7].

New Brunswick (Minister of Family and Community Services) v. A.W. et al. (2007), 322 N.B.R.(2d) 162; 829 A.P.R. 162; 2007 NBCA 77, refd to. [para. 7].

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161; 2001 SCC 60, refd to. [para. 7].

A.M.K.H. v. K.A.M. (2003), 259 N.B.R.(2d) 291; 681 A.P.R. 291; 2003 NBCA 33, refd to. [para. 7].

N.J.P. v. New Brunswick (Minister of Social Development) (2012), 382 N.B.R.(2d) 245; 988 A.P.R. 245; 2012 NBCA 3, refd to. [para. 7].

J.F. v. T.E., [2010] W.D.F.L. 1483; 354 N.B.R.(2d) 260; 913 A.P.R. 260; 2010 NBCA 14, refd to. [para. 15].

New Brunswick (Minister of Social Development) v. M.A. et al. (2014), 422 N.B.R.(2d) 1; 1096 A.P.R. 1; 2014 NBQB 130, disagreed with [para. 18].

LeBlanc v. Fundy Drywall Ltd. et al. (2014), 414 N.B.R.(2d) 339; 1075 A.P.R. 339; 2014 NBCA 2, refd to. [para. 20].

New Brunswick (Minister of Health and Community Services) v. M.R. and A.R. (1998), 198 N.B.R.(2d) 201; 506 A.P.R. 201 (C.A.), refd to. [para. 22].

P.R.H. v. M.E.L. (2009), 343 N.B.R.(2d) 100; 881 A.P.R. 100; 2009 NBCA 18, refd to. [para. 32].

Authors and Works Noticed:

Sopinka, John, Lederman, Sidney N., and Bryant, Alan, The Law of Evidence in Canada (2nd Ed. 1999), p. 4 [para. 11].

Counsel:

Avocats:

Misty Amber Matthews-Emery, for the appellant, V.C.;

Patricia Gallagher Jette, for the appellant, J.C.;

David R. Colwell, Q.C., for the respondent, The Minister of Social Development.

These appeals were heard on January 13, 2015, by Larlee, Deschênes and Quigg, JJ.A., of the New Brunswick Court of Appeal. Quigg, J.A., delivered the following decision for the court, in both official languages, on April 30, 2015.