New Brunswick (Minister of Health and Community Services) v. L. (M.), [1998] 2 S.C.R. 534
Minister of Health and Community Services Appellant
v.
M.L. and R.L. Respondents
and
Child Solicitor Intervener
Indexed as: New Brunswick (Minister of Health and Community Services) v. L. (M.)
File No.: 26321.
Hearing and judgment: June 23, 1998.
Reasons delivered: October 1, 1998.
Present: L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major and Binnie JJ.
on appeal from the court of appeal for new brunswick
Family law ‑‑ Guardianship ‑‑ Right of access ‑‑ Children in need of protection ‑‑ Order awarding permanent guardianship to Minister of Health and Community Services ‑‑ Whether order granting parents access can be made in conjunction with permanent guardianship order ‑‑ Whether Court of Appeal erred in intervening in trial judge’s decision to deny natural parents access to children.
In 1995, the respondents’ three young daughters were placed in a foster family. A number of orders were subsequently made concerning their protection, and efforts were made to preserve the family ties. The Minister of Health and Community Services applied for a permanent guardianship order in 1997. The trial judge granted the application. The respondents’ 16 years of cohabitation were characterized by numerous break‑ups and reconciliations. The judge noted that the father had serious dependency problems, that he was not assuming his responsibilities towards the children and that he was continually absent. He also observed that the mother, whose intellectual capacity was limited, had anxiety and depression and suffered from behavioural disorders. The judge believed that her parenting skills could not improve significantly because care of the children was itself a source of great anxiety for her. She admitted having hit the children and she wanted the Minister to take care of them because she felt incapable of doing so. The last attempt to return the children to the respondents had been a failure. The judge said that the evidence left no doubt that the children could not obtain the appropriate motivation and care from the respondents. The respondents’ parenting skills did not meet the needs of the children. The mental, emotional and physical health of the children would be jeopardized if they were returned to the respondents. The evidence also showed that the children had developed emotional ties with their foster family, in which they were making progress and were happy. Relying on the definition of the “best interests of the child” set out in s. 1 of the Family Services Act, the judge concluded that the permanent guardianship order was in the best interests of the children. In a second judgment rendered several weeks later, the judge prohibited the respondents from having any contact with the children. He said that the order was made in the best interests of the children because the evidence showed that the attempts by the respondents to contact the girls were greatly disturbing to their sense of security and stability. The Court of Appeal affirmed the permanent guardianship order but set aside the order prohibiting access and ordered the Minister to present to the trial judge for approval a plan in relation to the exercise of the respondents’ access rights. The court was of the opinion that there was nothing on the record that would warrant the complete abrogation of access by the respondents.
Held: The appeal should be allowed.
Under the Family Services Act, the Court of Appeal, like the trial judge, had jurisdiction to make an access order in conjunction with an order for permanent guardianship. The Act provides for the guardianship order to be varied on the application of the Minister (s. 60(2)) or the parents (ss. 60(3) and 61(1)), and for the court to be able to make any order that it considers appropriate at that time, having regard to the best interests of the child (s. 60(6)). Since access may be considered when the guardianship order is reviewed, a fortiori the court must be able to consider granting access at the time the initial order is made. Section 85(2) of the Act, which deals with access at the adoption stage, confirms this interpretation of the courts’ initial jurisdiction in respect of access. If the court has the power to “preserve” a right of access after adoption, a measure that is even more drastic and final than permanent guardianship, it would be illogical for it not to have the power to grant access when it makes the initial permanent guardianship order. Finally, the legislature has given the courts jurisdiction to decide access rights, since it requires that they “place above all other considerations the best interests of the child” (s. 53(2)). Denying the courts the opportunity to decide whether an access order should be made could prevent them from performing their duty of acting in the best interests of the child.
There is no inconsistency in principle between a permanent guardianship order and an access order. While it is true that permanent guardianship is generally a prelude to adoption, that is not always the case. Even in the case of adoption, it may be in the best interests of the child to maintain contact with his or her natural family. However, if adoption is more important than access for the welfare of the child and would be jeopardized if a right of access were exercised, access should not be granted. Access is the exception and not the rule in the context of a permanent guardianship order. While preserving emotional ties is one of the elements of the definition of the best interests of the child (s. 1(d)), it will only operate in favour of granting access if access is in the best interests of the child, having regard to all the other factors. The decision as to whether or not to grant access is a delicate exercise which requires that the judge weigh the various components of the best interests of the child. It is up to the judge to determine which of the child’s interests and needs take priority. Access should not be granted if its exercise would have negative effects on the physical or psychological health of the child.
In this case, the Court of Appeal erred in finding that there was “nothing” to justify the trial judge’s decision to deny access. While in that decision he stated only one fundamental reason, and did not specify the precise behaviour on the part of the respondents that had disturbed the children, the trial judge referred to the evidence before him and his first judgment provides the necessary details. His refusal to authorize access is based on valid considerations. No manifest error in his assessment of the facts was raised. The evidence shows serious misconduct by the parents. The father was manipulative and unable to control his emotions. The mother, who was stressed and depressed, was unable to face up to the ordeal of the visits. For one thing, the evidence shows that most of the visits, even though brief, were disturbing and upsetting to the children. Maintaining the emotional tie with the parents was therefore not consistent with the girls’ psychological stability. Moreover, the evidence indicates that an access order could have jeopardized the adoption of the children by the foster family, which was desirable.
Cases Cited
Referred to: Re M.A.G. (1986), 73 N.B.R. (2d) 443; Re H.I.R. (1984), 37 R.F.L. (2d) 337; Children’s Aid Society of Winnipeg v. N. (1979), 9 R.F.L. (2d) 326; Adams v. McLeod, [1978] 2 S.C.R. 621; New Brunswick (Minister of Health and Community Services) v. C. (G.C.), [1988] 1 S.C.R. 1073; T. (A.H.) v. P. (E.J.) (1994), 4 R.F.L. (4th) 241; Turgeon v. Walker, [1996] B.C.J. No. 2316 (QL); Dombovary v. Dombovary (1997), 87 B.C.A.C. 318; Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165; New Brunswick (Minister of Health and Community Services) v. Jackson (1991), 121 N.B.R. (2d) 434; New Brunswick (Minister of Health and Community Services) v. K. (B.), [1990] N.B.J. No. 1141 (QL); Nouveau‑Brunswick (Ministre de la Santé et des Services communautaires) v. L.L., [1997] A.N.‑B. no 417 (QL); Nouveau‑Brunswick (Ministre de la Santé et des Services communautaires) v. L.L. (1990), 109 N.B.R. (2d) 202; Nova Scotia (Minister of Community Services) v. S. (S.M.) (1992), 41 R.F.L. (3d) 321; Nova Scotia (Minister of Community Services) v. K.M.S. (1995), 141 N.S.R. (2d) 288; Superintendent of Family and Child Service v. D.S. (1985), 46 R.F.L. (2d) 225; King v. Low, [1985] 1 S.C.R. 87; Young v. Young, [1993] 4 S.C.R. 3; New Brunswick (Minister of Health and Community Services) v. S.G. (1997), 193 N.B.R. (2d) 274; New Brunswick (Minister of Health and Community Services) v. B.D. (1994), 145 N.B.R. (2d) 14; New Brunswick (Minister of Health and Community Services) v. R.N. (1997), 194 N.B.R. (2d) 204; Re S.G.N., [1994] A.J. No. 946 (QL); New Brunswick (Minister of Health and Community Services) v. D. (K.), [1991] N.B.J. No. 222 (QL); Children’s Aid Society of the District of Thunder Bay v. T.T., [1992] O.J. No. 2975 (QL); Children’s Aid Society of the Durham Region v. W. (C.), [1991] O.J. No. 552 (QL); Nova Scotia (Minister of Community Services) v. D.L.C. (1995), 138 N.S.R. (2d) 241; New Brunswick (Minister of Health and Community Services) v. D.T.P., [1995] N.B.J. No. 576 (QL); New Brunswick (Minister of Health and Community Services) v. K.E.B. (1991), 117 N.B.R. (2d) 229; New Brunswick (Minister of Health and Community Services) v. P.P. (1990), 117 N.B.R. (2d) 222; New Brunswick (Minister of Health and Community Services) v. R.P.S., [1993] N.B.J. No. 96 (QL); Director of Child Welfare (Alta.) v. A.C. (1991), 121 A.R. 301; Alberta (Director of Child Welfare) v. L.L.O., [1996] A.J. No. 660 (QL).
Statutes and Regulations Cited
Child and Family Services Act, R.S.O. 1990, c. C.11, s. 59(2).
Children and Family Services Act, S.N.S. 1990, c. 5, s. 47(2).
Family Services Act, S.N.B. 1980, c. F‑2.2 [am. 1983, c. 16, s. 1], ss. 1 “best interests of the child” [am. 1996, c. 13, s. 1], 2, 6(1), 13, 43 “guardianship agreement”, “guardianship order”, 44(2.1) [ad. 1990, c. 25, s. 9], 45(3), 48(1), 52(1), 53(1), 53(2), 55(4), 56 [am. 1992, c. 33, s. 3], 58(1), 58(2) [rep. & sub. 1990, c. 25, s. 12], 58(3), 59(1), 59(4), 60(2), 60(3) [idem, s. 13], 60(6) [am. 1988, c. 13, s. 4], 61(1) [rep. & sub. 1990, c. 25, s. 14], 61(4) [idem], 85(2).
APPEAL from a judgment of the New Brunswick Court of Appeal (1997), 197 N.B.R. (2d) 113, 504 A.P.R. 113, [1997] A.N.‑B. no 372 (QL), allowing in part the respondents’ appeal from a judgment of Boisvert J. (1997), 197 N.B.R. (2d) 60, 504 A.P.R. 60, [1997] A.N.‑B. no 133 (QL), awarding the appellant guardianship of the respondents’ children. Appeal allowed.
Mary Elizabeth Beaton and Rita Godin, for the appellant.
Terrence P. Lenihan, for the respondent M.L.
Peter J. C. White, for the respondent R.L.
Sylvia Mendes‑Roux, for the intervener.
//Gonthier J.//
English version of the judgment of the Court delivered by
1. Gonthier J. -- At the hearing of this case, the Court allowed the appeal from the bench, with reasons to follow. These are the reasons.
2. At issue here is the jurisdiction of the Court of Appeal in this instance, and of the courts in general, in matters of child protection, to make an order granting the parents access in conjunction with an order awarding permanent guardianship to the Minister of Health and Community Services (hereinafter the “Minister”). The appropriateness of the intervention by the Court of Appeal, having regard to the facts of the case, is also in issue.
I. Facts and Proceedings
3. The facts are set out in the trial judgment, which I shall summarize later, and for the most part are not in dispute. On May 19, 1995, the respondents’ twin daughters, L.A. and L.L. born on April 6, 1991, and aged four at the time, were placed under protective care. On June 1, 1995, their older sister N.L., born on January 3, 1988, and then aged seven, was also taken into protective care. The three children were placed with the same foster family. Over the next two years, a number of orders were made concerning their protection, and efforts were made to preserve the family ties; these may be summarized as follows:
- June 29, 1995: interim custody order awarding custody to the Minister, and order prohibiting access by the father when the children visited their mother, on the ground of harassment;
- September 1, 1995: protection order cancelled because the parents had resumed cohabitation;
- September 11, 1995 to March 22, 1996: various orders awarding custody to the Minister;
- March 22, 1996: application by the Minister for guardianship of the three children. Counsel appointed for the children;
- July 4, 1996: order granting access to the parents (on consent);
- Summer 1996: attempt to return the children to their parents gradually;
- September 5, 1996: consent of the Minister to a supervision order. Parents given last chance. The children went back to live with them. Back-up provided by the foster family for some weekends;
- November 14, 1996: children returned to the foster family at the request of their mother, who was afraid she would strike them, and whose mental health had deteriorated. The father, who had started taking drugs again, was aggressive and violent;
- November 20, 1996: application by the Minister for permanent guardianship.
- November 25, 1996: prohibition by the Minister against any contact with the children for which prior authorization had not been given (s. 13 of the Family Services Act, S.N.B. 1980, c. F‑2.2 (hereinafter the “Act”)). Supervised one-hour visits every two weeks, during which the father was unable to control his emotions. The girls were sad, disturbed, worried and anxious about the visits;
- December 2, 1996: order for interim custody of the children. Issue of access left to the discretion of the Minister;
- January 30, 1997: prohibition by the Minister against all contacts until trial. Reasons: failure to comply with earlier orders, girls affected negatively by the visits;
- February 24 to 28 and March 3, 1997: hearing on permanent guardianship;
- March 20, 1997: order awarding permanent guardianship of the three children to the Minister made by Boisvert J. Judgment appealed by the parents, who continued to try to contact their children, going to the eldest’s school several times and publishing an article in the local newspaper. The eldest was disturbed;
- May 8, 1997: order made by Boisvert J. prohibiting the parents from having any contact with the children, on the application of the Minister under s. 60(2) of the Act;
- September 22, 1997: appeal allowed in part. The permanent guardianship order was upheld, but the Minister was to prepare an access plan;
- January 9, 1998: leave to appeal from the judgment of the Court of Appeal granted;
- February 13, 1998: hearing on the approval of the access plan postponed for 60 days by Deschênes J.;
- March 16, 1998: motion to stay the execution of the judgment of the Court of Appeal granted by this Court.
II. Relevant Statutory Provisions
4. Family Services Act, S.N.B. 1980, c. F-2.2
1 In this Act
. . .
“best interests of the child” means the best interests of the child under the circumstances taking into consideration
(a) the mental, emotional and physical health of the child and his need for appropriate care or treatment, or both;
(b) the views and preferences of the child, where such views and preferences can be reasonably ascertained;
(c) the effect upon the child of any disruption of the child’s sense of continuity;
(d) the love, affection and ties that exist between the child and each person to whom the child’s custody is entrusted, each person to whom access to the child is granted and, where appropriate, each sibling of the child and, where appropriate, each grandparent of the child;
(e) the merits of any plan proposed by the Minister under which he would be caring for the child, in comparison with the merits of the child returning to or remaining with his parents;
(f) the need to provide a secure environment that would permit the child to become a useful and productive member of society through the achievement of his full potential according to his individual capacity; and
(g) the child’s cultural and religious heritage;
. . .
13 The Minister, where he considers it to be in the best interests of the child to do so, may prohibit in writing any person from visiting, writing to, telephoning or otherwise communicating with a child in care, his parent or his foster parent, and any person who violates a prohibition in writing executed under this section having been given notice of the prohibition, or who otherwise in any way interferes with a child in care without the Minister’s consent, commits an offence.
43 In this Part
. . .
“guardianship agreement” means an agreement entered into under paragraph 44(1)(b) between the parent and the Minister permanently transferring from the parent to the Minister the guardianship of the child, including the custody, care and control of, and all parental rights and responsibilities with respect to, the child;
“guardianship order” means an order made under section 56 which transfers to the Minister the guardianship of the child, including the custody, care and control of, and all parental rights and responsibilities with respect to, the child;
44(2.1) The Minister shall not enter into a guardianship agreement unless
(a) the Minister plans to place the child for adoption, . . .
45(3) Where the child is in care under a guardianship agreement the Minister shall
(a) provide care for the child that will meet his physical, emotional, religious, educational, social, cultural and recreational needs;
(b) provide for the support of the child; and
(c) consider any wishes that the child expresses with regard to any placement or planning the Minister proposes;
and the Minister has full parental rights and shall exercise full parental responsibilities with respect to the child.
52(1) The court has jurisdiction to hear and determine any application made under this Part.
53(1) Notwithstanding any existing agreement or order, where a matter is before the court pursuant to an application made under this Part the court may
(a) make an order under section 54, 55, 56, 57, or 58;
(b) by order vary, terminate, or extend any such order as authorized by section 60;
(c) dismiss the application where the court is satisfied that there is insufficient cause to make an order; or
(d) subject to subsection (3), adjourn the hearing from time to time.
53(2) When disposing of an application under this Part the court shall at all times place above all other considerations the best interests of the child.
56(1) The court may make a guardianship order transferring from a parent to the Minister on a permanent basis the guardianship of a child, including the custody, care and control of, and all parental rights and responsibilities with respect to, the child.
56(2) Where a child is in care under a guardianship order the Minister shall meet those obligations set out in subsection 45(3) with respect to a child in care under a guardianship agreement.
56(3) Where a child is in care under a guardianship order the Minister may return the child to the former parent periodically, as the Minister considers appropriate, but such action shall not be construed as a release or waiver by the Minister of any rights and obligations under the order with respect to the custody, care and control of the child.
56(4) A guardianship order remains in effect until the child
(a) is adopted,
(b) marries, or
(c) reaches the age of majority,
or until an order is made under subsection 60(6).
58(1) The court may make a protective intervention order directed to any person who, in the opinion of the court, is a source of danger to a child’s security or development.
58(2) A protective intervention order may contain such provisions as the court considers to be in the best interests of the child, including a direction to the person named in the order to do either or both of the following:
(a) to cease to reside in the same premises in which the child resides;
(b) to refrain from any contact or association with the child.
58(3) A protective intervention order may be made in conjunction with any other order that the court may make under this Part.
59(1) Any order or decision made under this Part may be appealed within thirty days of the order or decision to The Court of Appeal of New Brunswick.
59(4) On appeal, the court may
(a) affirm the order, with or without modification;
(b) terminate the order;
(c) remit the order with directions to the court below; or
(d) give any judgment or make any order that in its opinion ought to have been given or made in the court below.
60(2) The Minister may, in the prescribed form and after notice as set out in section 52, apply to the court to have an order made under sections 54 to 58 varied, extended or terminated or to have another order made in substitution for or in addition to an existing order.
60(6) Upon hearing an application the court, if satisfied that it is in the best interests of the child to do so, may make such order authorized by this Part as it considers appropriate.
61(1) Where a child is in care under a guardianship order or a guardianship agreement and at least six months have elapsed from the making of the order or agreement or from any previous review of the order or agreement, a child or former parent of the child may apply to the court in the prescribed form to vary or terminate the order or agreement.
85(2) Except where a person adopts a child of his spouse, an adoption order, from the date it is made,
(a) severs the tie the child had with his natural parent or guardian or any other person in whose custody the child has been, by divesting the parent, guardian or other person of all parental rights in respect of the child, including any right of access that is not preserved by the court, and freeing that person from all parental responsibilities for the support of the child;
(b) free the child from all obligations, including support, with respect to his natural parent or any other person in whose custody he has been; and
(c) unless specifically preserved by the order in accordance with the express wishes of the natural parent, severs the right of the child to inherit from his natural parent or kindred;
but an adoption order does not terminate or affect any rights the child has that flow from his cultural heritage, including aboriginal rights.
III. Judicial History
1. Court of Queen’s Bench, Family Division, [1997] A.N.‑B. no 133 (QL)
5. On March 20, 1997, pursuant to s. 56 of the Act, Boisvert J. made an order for permanent guardianship of the respondents’ three children. The respondents had then been cohabiting for 16 years. They were both receiving social assistance, and their marital life was described as [translation] “dysfunctional” by Boisvert J., in that it had been characterized by numerous break-ups and reconciliations (para. 10).
6. At the time the order for permanent guardianship was made, R.L. was 33 years old. He had attended primary school only. His criminal record showed several convictions for theft. He had started taking drugs at the age of 14 and had serious dependency problems. Boisvert J. noted that R.L. had a tendency to deny the obvious, to blame others and to minimize the seriousness of his drug and marital problems. He was reluctant to believe R.L., who claimed that he was no longer taking drugs at the time of the trial, and decided that there was a possibility of a relapse.
7. M. L. was 36 years old at the time of the trial. She cannot read or write. Her intellectual capacity is limited and she requires medical supervision for anxiety and depression. She suffers from behavioural and impulsive disorders. Boisvert J. believed that her parenting skills could not improve significantly because care of the children was itself a source of great anxiety for her.
8. He concluded that the guardianship order was in the best interests of the children because the respondents’ promises and good intentions were insufficient (at paras. 25‑26):
[translation] The Minister rightly states that things go well with the respondents as long as the children are not with them, and the problems begin again once they return.
[R.L.’s] dependency problems and all the psychic disorders suffered by his wife are a real source of insecurity for the children. The facts clearly indicate that the evidence of the respondents’ rehabilitation is insufficient to warrant the risk of putting the children in their custody and thereby interrupting their stability. [Emphasis added.]
9. Adopting the Minister’s arguments, Boisvert J. found that R.L. was not assuming his responsibilities towards the children and that he was continually absent. M.L. generally felt exhausted and out of control. She admitted having hit the children on several occasions. She wanted the Minister to take care of the children because she felt incapable of doing so. The respondents continually exposed their children to their marital disputes. The attempt to return the children to them had been a failure. On the other hand, the girls were making progress with their foster family.
10. Relying on the definition of the best interests of the child set out in s. 1 of the Act, Boisvert J. stated his findings as follows (at para. 41):
[translation] (a) The evidence leaves no doubt that the children cannot obtain the appropriate motivation and care from their biological parents. The respondents’ parenting skills do not meet the needs of the children. The respondents have failed to demonstrate that they are able to guarantee the children the security, stability and care they need. The mental, emotional and physical health of the children would be jeopardized if they were returned to the respondents.
(b) The views and preferences of the children: the evidence shows that the children are happy in their foster home. The children are young: I believe their lawyer’s opinion is important in the determination of the matter. In fact, Ms. Roux is the spokeswoman for the children. Her primary role is, necessarily, to protect their interests. The children’s lawyer supports the Minister in his application for a guardianship order.
(c) In view of the Minister’s plans, the ties of affection between the children are not threatened. The children have developed emotional ties with their foster family. It is undeniable that the children are aware of their biological parents, but it would be illogical to return the children to the respondents for the sole reason that they will probably feel, for at least some time, a certain anxiety because of the breaking of ties with the respondents.
(d) In view of the record, no further intervention could be of any utility for the respondents. They are, in my opinion, incapable of taking advantage of the assistance offered by the applicant.
(e) From any standpoint, the Minister’s plans are superior to those of the respondents.
(f) I believe that the family environment cannot guarantee the security to which each child is entitled. They cannot achieve their full potential within their family.
(g) In view of the couple’s separations and difficulties, the female respondent’s psychic deficiencies, her inability to adequately care for her children, and the male respondent’s drug problems, the family environment can only harm the children’s development. A return of the children to the natural parents would have harmful consequences for them.
(h) The children cannot obtain from their natural parents the appropriate motivation and care.
(i) Neither the cultural nor the religious heritage appear to be threatened.
In view of these findings, Boisvert J. made an order for permanent guardianship of the children, the effect of which was to transfer to the Minister the custody, care and control of, and all parental rights and responsibilities with respect to, the children.
11. On May 8, 1997, pursuant to s. 60(2) of the Act, on the application of the Minister, Boisvert J. made an order prohibiting the parents from having any contact with the children:
The respondents, [M.L.] and [R.L.], are ordered not to have any contact, association or any form of communication with the children or foster parents. This prohibition extends to any and all attempts by the respondents to communicate with the children or the foster parents through the written press, radio or television.
At all times, the respondents shall remain at least one half mile away from any place where either of the three children are located.
He gave the following reasons for his decision:
In my view, this order is necessary and in the best interest of the children because the evidence, that I have before me, showed that the attempts by the respondents to contact the children are greatly disturbing to their sense of security and stability. [Emphasis added.]
2. New Brunswick Court of Appeal, [1997] A.N.‑B. no 372 (QL)
12. In a brief judgment handed down on September 22, 1997, the Court of Appeal allowed the parents’ appeal in part, setting aside the judgment of Boisvert J. concerning the order prohibiting access, but leaving the permanent guardianship order intact. The Court of Appeal stated its reasons as follows (at paras. 1-2):
[translation] The appellants did not plead any error of law in the decision of the trial judge. Nevertheless, the Court is of the opinion that there is nothing on the record that would warrant the complete abrogation of access by the natural parents, or the finding that the abrogation of such rights would be in the interest of the children. This issue was not addressed by the trial judge in his reasons.
An order shall go that the Minister shall present to the trial judge for approval a plan in relation to the exercise of the natural parents’ visiting right that has been prepared following consultation with the foster family and the preparation of the necessary expert reports concerning the terms and conditions in which such access shall be exercised. [Emphasis added.]
3. Court of Queen’s Bench, Family Division, [1998] A.N.-B. no 46 (QL)
13. The Minister submitted to Deschênes J. a report from the foster family and a psychologist, which was intended as an unequivocal warning against granting access. Deschênes J. believed that the Court of Appeal judgment required that he consider the terms and conditions upon which access would be exercised, and not its appropriateness. In order to give the parents and counsel for the children time to review the reports and respond to them, Deschênes J. postponed the hearing for two months.
14. In his judgment, he expressed his failure to understand the judgment of the Court of Appeal, and noted that at the time of the hearing on appeal, [translation] “Boisvert J. had expressly addressed the parents’ access rights and had rendered his decision prohibiting any communication between the respondents and the children” (para. 7).
IV. Issues
15. 1. Do the courts (Court of Queen’s Bench and Court of Appeal) have jurisdiction to make an access order in conjunction with an order for permanent guardianship, either under the Act or by virtue of their parens patriae jurisdiction?
2. Did the Court of Appeal err in holding that there was “nothing” to justify the trial judge’s finding that it was in the interests of the children that they continue to have no contact with the respondents?
V. Analysis
1. Jurisdiction of the courts to make an access order
(a) Change in the parties’ status
16. The legislature has provided for the consequences of a permanent guardianship order, in s. 56(1) of the Act:
56(1) The court may make a guardianship order transferring from a parent to the Minister on a permanent basis the guardianship of a child, including the custody, care and control of, and all parental rights and responsibilities with respect to, the child. [Emphasis added.]
17. Parents have rights in order that they may fulfil their obligations towards their children. When they are relieved of all of their obligations, they lose the corresponding rights, including the right of access. After a permanent guardianship order is made, access is a right that belongs to the child, and not to the parents. The Court of Appeal did not recognize that the parents had a right of access; it simply allowed them to have access to the children. It used the expression “right” in the sense of permission.
18. When the Minister becomes the guardian of a child, he “has full parental rights and shall exercise full parental responsibilities” (s. 45(3)). He has an obligation to provide care for the child “that will meet his physical, emotional, religious, educational, social, cultural and recreational needs” (ss. 45(3)(a) and 56(2)) (emphasis added). Unlike a custody agreement, a guardianship order does not impose an obligation on the Minister to allow access to the child under his guardianship (see ss. 48(1) and 55(4) of the Act). The legislature has provided that where a child is in his care the Minister “may return the child to the former parent periodically, as the Minister considers appropriate” (s. 56(3)) (emphasis added). I am of the view that the expression “may” means “must” where that is in the best interests of the child.
19. Section 13 of the Act gives the Minister the power to prohibit all contact between the child and his or her parents, where the Minister considers it to be in the best interests of the child to do so. Any violation of the Minister’s decision constitutes an offence. On November 25, 1996, before the hearing on permanent guardianship, the Minister used this power and notified the respondents that any contact with their children would require prior authorization. On January 30, 1997, the respondents having failed to abide by his decision, the Minister prohibited them from having any contact with the girls.
20. Under ss. 13, 45(3) and 56(2) of the Act, the Minister in effect has the necessary discretion to grant or deny the parents access or visiting rights.
21. The court has the power to prohibit the parents from having access to their children. Section 58(1) of the Act provides that the court “may make a protective intervention order directed to any person who, in the opinion of the court, is a source of danger to a child’s security or development”. Section 58(2) specifies that a protective intervention order may contain “such provisions as the court considers to be in the best interests of the child, including a direction” to a person “to refrain from any contact or association with the child”.
22. While it is clear that the court “may” protect a child from the harmful consequences of his or her parents exercising a right of access, the question still arises as to whether the court may, on the contrary, order that the child shall benefit from a visiting right. The Minister contends that the legislature has made no provision for the courts to have this power, and that he alone may exercise it.
(b) Jurisdiction of the court in respect of access
23. Boisvert J. prohibited the respondents from having any contact with their children, at the request of the Minister, who had applied under s. 60(2) of the Act:
60(2) The Minister may, in the prescribed form and after notice as set out in section 52, apply to the court to have an order made under sections 54 to 58 varied, extended or terminated or to have another order made in substitution for or in addition to an existing order. [Emphasis added.]
Section 52(1) provides as follows:
52(1) The court has jurisdiction to hear and determine any application made under this Part. [Emphasis added.]
In asking the court to “vary” its original order so as to prohibit access, the Minister acknowledged that the court had jurisdiction to make such a ruling at the time of the original order as well.
24. In Re M.A.G. (1986), 73 N.B.R. (2d) 443, at p. 451, the New Brunswick Court of Appeal, per Hoyt J.A., took this approach: “If access is in the best interests of the child and thus permitted at the review stage surely access is an option when the order is made initially”.
25. The parents also have the right to ask the court to “vary” and even to terminate a guardianship order. They may make such an application six months after the order was made (ss. 60(3) and 61(1)). They lose that right if the child has been placed for adoption within that period (s. 61(4)).
26. In my view, it is absurd to argue that the legislature believed that it could never be in the best interests of the child for the courts to be able to decide whether the natural parents should have access to their child before six months had elapsed since the making of the order for permanent guardianship. In my opinion, the six‑month period is intended only to avoid repetitive applications.
27. In short, the Act provides for the guardianship order to be varied on the application of the Minister (s. 60(2)) or the parents (ss. 60(3) and 61(1)) and for the court to be able to make any order that it considers appropriate at that time, having regard to the best interests of the child (s. 60(6)). Access may be considered when the guardianship order is reviewed. A fortiori, the court must be able to consider granting access at the time the initial order is made.
28. Section 85(2) of the Act, which deals with access at the adoption stage, confirms this interpretation of the courts’ initial jurisdiction in respect of access:
85(2) Except where a person adopts a child of his spouse, an adoption order, from the date it is made,
(a) severs the tie the child had with his natural parent or guardian or any other person in whose custody the child has been, by divesting the parent, guardian or other person of all parental rights in respect of the child, including any right of access that is not preserved by the court, and freeing that person from all parental responsibilities for the support of the child; [Emphasis added.]
29. If the court has the power to “preserve” a right of access after adoption, a measure that is even more drastic and final than permanent guardianship, it would be illogical for it not to have the power to grant access when it makes the initial permanent guardianship order.
30. This interpretation of the Act is consistent with what was intended by the legislature, that is, the best interests of the child. Any other interpretation would leave the question of access entirely in the Minister’s hands. This would not be desirable, in that the children might suffer, for example, from administrative oversights, lack of communication or tensions between the people involved (see Re H.I.R. (1984), 37 R.F.L. (2d) 337 (Alta. C.A.), at p. 344; Children’s Aid Society of Winnipeg v. N. (1979), 9 R.F.L. (2d) 326 (Man. C.A.), at p. 331).
31. To summarize, I am of the view that the New Brunswick legislature has given the courts jurisdiction to decide access rights, since it requires that they “place above all other considerations the best interests of the child” (s. 53(2)). Denying the courts the opportunity to decide whether an access order should be made could prevent them from performing their duty of acting in the best interests of the child. It is not surprising that the New Brunswick courts, supported by the judgment of the Court of Appeal in Re M.A.G., supra, have generally found that they possess this jurisdiction.
32. Moreover, a judge hearing an application by the Minister for permanent guardianship of a child is in an excellent position to assess the consequences of granting access. The judge hears the testimony and submissions of all the parties involved, and of their expert witnesses, and has the power, where necessary, to order additional evidence on the question of access. In this instance, he is in a position to hear and draw the necessary conclusions from the evidence relating to what happened on earlier visits.
33. In view of these conclusions, there is no need to consider the second head of jurisdiction relied on by the respondents, namely parens patriae.
2. Did the Court of Appeal err in holding that there was “nothing” to justify the trial judge’s finding that it was in the interests of the children that they continue to have no contact with the respondents?
(a) Intervention by an appellate court
34. The appellant contends that the Court of Appeal should not have substituted its discretion for that of the trial judge. This Court has stated on a number of occasions that the trial judge is in the best position to decide the best interests of the child. In Adams v. McLeod, [1978] 2 S.C.R. 621, Spence J. wrote (at pp. 625-26):
Again our courts have been unanimous that the most authoritative pronouncement thereon is by the trial court judge who hears the evidence and assesses it. . . . However, as to custody issues, that caution must, in my view, become very strong indeed. Those issues are so intensely personal that the trial court judge is able to do, and does, far more than merely assigning credibility. [Emphasis added.]
35. More recently, in New Brunswick (Minister of Health and Community Services) v. C. (G.C.), [1988] 1 S.C.R. 1073, at p. 1077, the Court, per L’Heureux-Dubé J., described the function of an appellate court in family law matters as follows:
. . . trial judges’ decisions, particularly in matters of family law, should not be interfered with lightly by appellate courts absent an error in principle, a failure to consider all relevant factors, a consideration of an irrelevant factor or a lack of factual support for the judgment . . . .
36. Accordingly, appellate courts will be circumspect, especially where the trial judgment is detailed and meticulous (see T. (A.H.) v. P. (E.J.) (1994), 4 R.F.L. (4th) 241 (Alta. C.A.), at p. 245; Turgeon v. Walker, [1996] B.C.J. No. 2316 (QL) (C.A.); Dombovary v. Dombovary (1997), 87 B.C.A.C. 318).
(b) Relevant factors in respect of access
37. The decision to be made concerning access, like all decisions concerning the child, must be made in the child’s best interests. Under s. 1, the determination of the best interests of the child takes into consideration:
(a) the mental, emotional and physical health of the child and his need for appropriate care or treatment, or both;
(b) the views and preferences of the child, where such views and preferences can be reasonably ascertained;
(c) the effect upon the child of any disruption of the child’s sense of continuity;
(d) the love, affection and ties that exist between the child and each person to whom the child’s custody is entrusted, each person to whom access to the child is granted and, where appropriate, each sibling of the child and, where appropriate, each grandparent of the child;
(e) the merits of any plan proposed by the Minister under which he would be caring for the child, in comparison with the merits of the child returning to or remaining with his parents;
(f) the need to provide a secure environment that would permit the child to become a useful and productive member of society through the achievement of his full potential according to his individual capacity; and
(g) the child’s cultural and religious heritage; [Emphasis added.]
38. An order for permanent guardianship is the result of a consideration of the best interests of the child. In considering whether visiting or access rights should be granted, the judge cannot ignore the fact that he or she has first found it necessary to remove the child from the parents’ care completely and permanently, so that the child’s welfare will not be jeopardized any further. The judge must therefore consider whether more limited contact might still be beneficial for the child.
39. My consideration of whether access should be granted is based on the following principles. First, there is no inconsistency in principle between a permanent guardianship order and an access order. Second, access is the exception and not the rule. Third, the principle of preserving family ties cannot come into play in respect of granting access unless it is in the best interests of the child to do so, having regard to all the other relevant factors. Fourth, an adoption, which is in the best interests of the child, must not be hampered by the existence of a right of access. Fifth, access should not be granted if its exercise would have negative effects on the physical or psychological health of the child.
(i) No inconsistency in principle between guardianship and access
40. In Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165, at p. 207, L’Heureux-Dubé J. concluded:
In the present case, none of the exceptions set out in s. 59(2) is applicable and none has been proven. Permanent placement has been established with a family who wishes to adopt S.M.; S.M. is under twelve years of age; and further, she refuses to maintain contact with her mother. In the presence of such overwhelming evidence, the appellant has been unable to discharge her burden under the Act. Although there may be cases where temporary or transitional access could be beneficial to the child, in the present case the situation does not appear, realistically, to allow for such a solution. Consequently, the Act must apply. The strong evidence provided by Dr. Wilkes and Ms. De Sousa leaves little room for any order other than that of Crown wardship without access, in the best interests of S.M. [Emphasis added.]
Thus the Court has already considered the possibility, under Ontario legislation, of access coexisting with a permanent guardianship order.
41. In Re M.A.G., supra, at p. 451, in the Court of Appeal, the Minister urged that owing to the fact that a guardianship order is generally a prelude to adoption, and that potential adoptive parents may be discouraged by the existence of an access right, it would be illogical to grant access at the same time as a guardianship order. Hoyt J.A. felt, with good reason, that these concerns were exaggerated.
42. There is no inconsistency in principle between access and guardianship. For one thing, while it is true that permanent guardianship is generally a prelude to adoption, that is not always the case, as it may not be in the best interests of the child in question. For example, in New Brunswick (Minister of Health and Community Services) v. Jackson (1991), 121 N.B.R. (2d) 434 (Q.B.), it was held that it was in the best interests of the child, a 14‑year‑old girl, that she remain in her foster family in accordance with her wishes and in view of the abuse perpetrated by her mother’s spouse, but that she could communicate with her mother. The wishes of the child, who was 13 years old, were also determinative in New Brunswick (Minister of Health and Community Services) v. K. (B.), [1990] N.B.J. No. 1141 (QL) (Q.B.).
43. In addition, even where the Minister intends to try to find an adoptive family for a child under his guardianship, it may be in the best interests of the child to maintain contact with his or her natural family. Section 85(2) of the Act provides that the court may preserve a right of access even after adoption. For instance, it may be necessary to ensure a child’s emotional stability by keeping him or her in the foster family, so that the child does not have to live with a parent who is unable to provide for his or her welfare but can nevertheless have the opportunity to maintain and cultivate an emotional tie with that parent (Nouveau-Brunswick (Ministre de la Santé et des Services communautaires) v. L.L., [1997] A.N.‑B. no 417 (QL) (Q.B.); Nouveau‑Brunswick (Ministre de la Santé et des Services communautaires) v. L.L. (1990), 109 N.B.R. (2d) 202 (Q.B.)).
(ii) Access: the exception and not the rule
44. A review of the case law and legislation of the other provinces shows that access is the exception and not the rule in the context of a permanent guardianship order. In Ontario and Nova Scotia, the legislation creates a presumption that any right of access is revoked, and sets out the exceptional circumstances in which an access order may be made.
Child and Family Services Act, R.S.O. 1990, c. C.11
59. . . .
(2) Where a child is made a Crown ward under paragraph 3 of subsection 57 (1), the court shall not make an order for access by the person who had charge of the child immediately before intervention under this Part unless the court is satisfied that,
(a) permanent placement in a family setting has not been planned or is not possible, and the person’s access will not impair the child’s future opportunities for such placement;
(b) the child is at least twelve years of age and wishes to maintain contact with the person;
(c) the child has been or will be placed with a person who does not wish to adopt the child; or
(d) some other special circumstance justifies making an order for access.
Children and Family Services Act, S.N.S. 1990, c. 5
47 . . .
(2) Where an order for permanent care and custody is made, the court may make an order for access by a parent or guardian or other person, but the court shall not make such an order unless the court is satisfied that
(a) permanent placement in a family setting has not been planned or is not possible and the person’s access will not impair the child’s future opportunities for such placement;
(b) the child is at least twelve years of age and wishes to maintain contact with that person;
(c) the child has been or will be placed with a person who does not wish to adopt the child; or
(d) some other special circumstance justifies making an order for access.
The burden of proving the existence of one of these exceptional circumstances rests on the person claiming the access rights (Nova Scotia (Minister of Community Services) v. S. (S.M.) (1992), 41 R.F.L. (2d) 321 (N.S.S.C.A.D.), at p. 335; Nova Scotia (Minister of Community Services) v. K.M.S. (1995), 141 N.S.R. (2d) 288 (Fam. Ct.), at pp. 306‑7).
45. In New Brunswick, the legislature has not chosen to create a presumption that access is revoked. In practice, and in accordance with the judgment of the Court of Appeal in Re M.A.G., supra, at pp. 451-52: “It will only be in rare situations that access will be ordered and it may be that in these rare situations it is not appropriate for that child to be placed for adoption.” (Emphasis added.) This statement of the applicable law seems to me to be entirely accurate, and is consistent with what was said by Esson J.A. in Superintendent of Family and Child Service v. D.S. (1985), 46 R.F.L. (2d) 225 (B.C.C.A.).
(iii) Preservation of family ties: a factor
46. While a liberal interpretation of the Act is called for, to protect the integrity of the family and avert family breakdown (s. 2), the best interests of the child must remain the primary consideration.
47. The Ontario Act is regarded as one of the least interventionist, in that it emphasizes the importance of preserving the family unit. This Court has held, however, that preserving the family unit plays an important role only if it is in the best interests of the child (Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), supra). This Court has also held on numerous occasions that pursuing and protecting the best interests of the child must take precedence over the wishes and interests of the parent (King v. Low, [1985] 1 S.C.R. 87; Young v. Young, [1993] 4 S.C.R. 3). In Catholic Children’s Aid Society of Metropolitan Toronto, supra, at p. 191, L’Heureux-Dubé J. stated: “Thus, the value of maintaining a family unit intact is evaluated in contemplation of what is best for the child, rather than for the parent. In order to respect the wording as well as the spirit of the Act, it is crucial that this child-centred focus not be lost”.
48. I conclude that while preserving emotional ties is one of the elements of the definition of the best interests of the child (s. 1(d)), it will only operate in favour of granting access if access is in the best interests of the child, having regard to all the other factors.
49. Thus, if there is an emotional bond between the child and the parent, it should be preserved, as long as it is not contrary to the other interests of the child such as security or psychological health (New Brunswick (Minister of Health and Community Services) v. B.D. (1994), 145 N.B.R. (2d) 14 (Q.B.)). On the other hand, a child and a parent who are not attached to each other may not be granted access if the effect of doing so would be to disturb the child (New Brunswick (Minister of Health and Community Services) v. S.G. (1997), 193 N.B.R. (2d) 274 (Q.B.)). The child’s wishes, where the child is capable of expressing them, is an important consideration (ss. 6(1) and 45(3)(c) of the Act).
(iv) Adoption as a priority
50. If adoption is more important than access for the welfare of the child and would be jeopardized if a right of access were exercised, access should not be granted (New Brunswick (Minister of Health and Community Services) v. R.N. (1997), 194 N.B.R. (2d) 204 (Q.B.)). In other words, the courts must not allow the parents to “sabotage” an adoption that would be beneficial for the child (Re S.G.N., [1994] A.J. No. 946 (QL) (Prov. Ct.)). In New Brunswick (Minister of Health and Community Services) v. D. (K.), [1991] N.B.J. No. 222 (QL) (Q.B.), the child was severely disabled, both physically and mentally. In view of the evidence that the mother was interfering inappropriately in the foster family’s life and was thereby reducing the already slim chances of finding adoptive parents, Athey J. refused to grant access (see also: Children’s Aid Society of the District of Thunder Bay v. T.T., [1992] O.J. No. 2975 (QL) (Prov. Div.), and Children’s Aid Society of the Durham Region v. W. (C.), [1991] O.J. No. 552 (QL) (Gen. Div.)). Because of the urgent need to find the child an adoptive home, access was denied to the extent it was unduly delaying the adoption process (see: Nova Scotia (Minister of Community Services) v. D.L.C. (1995), 138 N.S.R. (2d) 241 (C.A.)).
(v) Interests and needs of the child to take priority
51. The decision as to whether or not to grant access is a delicate exercise which requires that the judge weigh the various components of the best interests of the child. It is up to the judge to determine which of the child’s interests and needs take priority (see New Brunswick (Minister of Health and Community Services) v. D.T.P., [1995] N.B.J. No. 576 (QL) (Q.B.), at para. 41). A child’s emotional stability is of prime importance. If the child is unduly disturbed by access, it is generally not granted (see New Brunswick (Minister of Health and Community Services) v. K.E.B. (1991), 117 N.B.R. (2d) 229 (Q.B.), at p. 239; New Brunswick (Minister of Health and Community Services) v. P.P. (1990), 117 N.B.R. (2d) 222 (Q.B.)).
52. The evidence as to how access has been exercised is particularly relevant, since it relates both to the attitude of the parent and to the effects of the visits on the child. Every parent must place his or her child’s interests ahead of the parent’s own. The parent’s inability to do so, and the harm suffered by the child, are factors that may result in access being prohibited. This will be the case, for example, where the parent is violent, manipulative, unstable or unable to control his or her emotions. With regard to the effects of the visits on the child, signs such as sadness, anxiety, regression, the reappearance or exacerbation of behavioural problems, mood and nightmares may evidence harm. (See: New Brunswick (Minister of Health and Community Services) v. R.P.S., [1993] N.B.J. No. 96 (QL) (Q.B.); New Brunswick (Minister of Health and Community Services) v. K.E.B., supra, at p. 235; Director of Child Welfare (Alta.) v. A.C. (1991), 121 A.R. 301 (Prov. Ct.).) In short, the parents must be worthy of being “visitors in their child’s life”, in the words of Judge Cook-Stanhope in Alberta (Director of Child Welfare) v. L.L.O., [1996] A.J. No. 660 (QL) (Prov. Ct.), at para. 94.
(c) Application to the facts of this case
53. The respondent M.L. relies on the judgment of the Court of Appeal and submits that it is in the best interests of the children that they maintain contact with their parents, for one or two hours a month, or however frequently the court might deem appropriate.
54. The first judgment of Boisvert J. dealt with the permanent guardianship order. In the second judgment, he allowed the Minister’s application for a prohibition on access for the reason already quoted: “In my view, this order is necessary and in the best interest of the children because the evidence, that I have before me, showed that the attempts by the respondents to contact the children are greatly disturbing to their sense of security and stability” (emphasis added).
55. I am of the view that Boisvert J. gave valid reasons for his decision to deny access. While he stated only one fundamental reason, and did not specify the precise behaviour on the part of the respondents that had disturbed the children, he returned to the evidence before him and his first judgment, rendered after a six-day trial, provides the necessary details.
56. The evidence shows serious misconduct by the parent in both minor and major matters. They have demonstrated their inability to put the girls’ interests before their own. For instance, they exposed the children to their marital disputes, and frequently involved the children in them. They called the eldest as often as five or six times a day. They did not abide by the visiting schedule and brought the children back earlier than agreed to because they did not feel able to keep them any longer. They violated the terms laid down for the visits by trying to meet the children in public places on days other than those arranged. Although they were not entitled to write to the children, they hid a letter in one of the eldest’s dolls, and this upset her greatly. After the respondents were prohibited from seeing their children, they refused to give them their toys.
57. The visits are difficult for M.L., who runs out of patience and energy after a few hours. On numerous occasions, she asked that the frequency and length of the visits be cut back. In September 1995, it was agreed that there would be three visits a week and that the children would sleep at their parents’ home on Saturday evening. In early October 1995, the schedule provided for two three-hour visits a week. In December, the children were spending no more than an hour every two weeks with their parents. The visits took place in the offices of the Department of Health and Community Services, in the presence of a support worker. For M.L., they were an ordeal which she was unable to face up to. She was stressed and depressed.
58. R.L. is unstable and absent. He does not help M.L. He manipulated the eldest girl by asking her to lie to the social worker and used her to get in touch with his wife during one of their numerous separations. He is unable to control his emotions during visits and cries in front of the children. The children get upset and feel obliged to comfort him. On several occasions, they asked to go back to their foster family earlier than arranged. They are apprehensive about subsequent visits and prefer not to see their father rather than to see him cry.
59. At the trial in respect of the guardianship order, the Minister’s plan was adoption. In her testimony, the foster mother expressed her own and her husband’s desire to adopt the three sisters. She expressed her concern, however, that the natural parents would blame them and would interfere with their family life.
60. Boisvert J. examined the situation carefully. His refusal to authorize access is based on valid considerations. No manifest error in his assessment of the facts has been established. For one thing, the evidence shows that most of the visits, even though brief, were disturbing and upsetting to the children. Maintaining the emotional tie with the parents was therefore not consistent with the girls’ psychological stability. Moreover, the children’s adoption could have been jeopardized by an access order.
61. With all due deference, I am of the view that the Court of Appeal’s intervention was not warranted.
VI. Conclusion
62. Like the trial judge, the Court of Appeal had jurisdiction to make an access order in conjunction with an order for permanent guardianship.
63. In the instant case, however, the Court of Appeal’s decision must be set aside, because it erred in finding that there was “nothing” to justify the trial judge’s decision to deny access. For these reasons, the permanent guardianship order dated March 20, 1997, as varied by the order prohibiting access of May 8, 1997, was upheld and the order of the Court of Appeal set aside.
Appeal allowed.
Solicitors for the appellant: The Department of Justice, Fredericton, and the Crown Prosecutors Office, Bathurst.
Solicitors for the respondent M.L.: Byrne, Lenihan, Riordon, Bathurst.
Solicitor for the respondent R.L.: Peter J. C. White, Bathurst.
Solicitors for the intervener: Roux Frenette, Bathurst.