H.W. v. Children's Aid Society

H.W. v. Children's Aid Society Court Court of Appeal Date 1996-11-06 Citation 1996 NSCA 239 Docket CA 130325 Judge/Registrar/Adjudicator Freeman, Gerald B. (Honourable Justice) (CA); Hart, Gordon L.S. (Honourable Justice); Hallett, J. Doane (Honourable Justice) (CA) Document Type Decision Decision Content C.A. No. 130325 NOVA SCOTIA COURT OF APPEAL Cite as: H.W. v. Children’s Aid Society, 1996 NSCA 239 Hallett, Hart and Freeman, JJ.A. BETWEEN: H. W. ) Dianne E. Paquet ) for the Appellant Appellant ) ) - and - ) ) S. Raymond Morse ) and H. Matthew Graham THE CHILDREN'S AID SOCIETY and ) for the Respondent, FAMILY SERVICES OF COLCHESTER ) The Children's Aid Society COUNTY, D. L. and B. S. ) and Family Services of ) Colchester County ) ) Respondents ) Appeal Heard: ) October 17, 1996 ) ) ) Judgment Delivered: ) December 6, 1996 Editorial Notice Identifying information has been removed from this electronic version of the judgment. THE COURT: Appeal dismissed without costs per reasons for judgment of Freeman, J.A.: Hart, J.A. concurring and Hallett, J.A. concurring by separate reasons. FREEMAN, J.A.: A Family Court judge's decision as to the permanent care and custody of a boy now seven and a girl not yet three was delivered more than six months after final submissions in the main disposition hearing. The issue is whether the Family Court judge had lost jurisdiction because of the delay. The Family Court judge purported to derive his authority from s. 8 of the Family Court Act, R.S.N.S. 1989 c. 159, which provides that reserved decisions are to be given within six months from the time they are reserved. The judge, however, held the time frame had been extended because he re-opened the hearing on two occasions to receive additional evidence and hear submissions respecting it. The appellant argues that the governing provision is not s. 8 of the Family Court Act but s. 42(1) of the Children and Family Services Act, S.N.S. 1990, c. 5 which calls for dispositions to be heard and decided within ninety days from the time a child is found in need of protection. Underlying the issues are questions whether the Family Court can preserve its jurisdiction beyond the rigid time schedules set out in various provisions of the Children and Family Services Act. Factual Background The two children, the boy J., born October [...], 1989, and the girl, H., born November [...], 1993, were apprehended from their mother H.W. on April 19, 1994 because they were feared to be at risk from her abuse of alcohol. After a series of proceedings not at issue in this appeal they were returned to H.W. subject to the supervision of the Agency on June 16, 1995, and re-apprehended July 31, 1995. In order to preserve the Court's jurisdiction the parties agreed to treat the reapprehension as a new protection proceeding. By consent of the parties a hearing on August 8, 1995, was constituted an initial hearing and a hearing on August 17, 1995, constituted a protection hearing. By consent the children were found in need of protective services pursuant to s. 22(2)(a),(b),(g), and (h) of the Children and Family Services Act. On August 31, 1995, D.L., the father of J., was given interim care and custody of J. subject to supervision . H. remained in the temporary care and custody of the Agency. The agency supported the application of D.L. for permanent care and custody of J. and sought permanent care and custody of H. B.S., the father of H., also sought permanent care and custody of her. The disposition hearing was scheduled for November 16, 1995, the earliest date available for the court and all counsel. The Family Court judge heard evidence during five days in November and December, 1995, and submissions of counsel were heard December 28, 1995. The judge delivered his reserved decision as of July 18, 1996, six months and three weeks later. In the meantime, with the consent of all parties and leave of the court, additional evidence in the form of a letter from the Drug Dependency Services was presented on January 17, 1996, and in the form of an access visitation record on February 27, 1996. All four counsel involved filed supplementary submissions by January 19, 1996 with respect to the letter and one of them filed a submission respecting the visitation record on February 27, 1996. November 16, 1995, the date the disposition hearing was scheduled to begin, was at the end of the ninety-day time limit following the finding that the children were in need of protection. This left virtually no time for taking evidence or hearing submissions. The parties agreed to the extension of the time limits for these purposes. Counsel for the respondent submitted that the time limit for the disposition hearing was within the 180 days in total allowed for the protection hearing and the disposition hearing because the protection hearing had been expedited, but that does not appear relevant in this appeal. The Time Limits Under s. 40 of the Act a protection hearing must be held within 90 days of the application. S. 41(1), governing the disposition hearing, provides: (1) Where the court finds the child is in need of protective services, the court shall, no later than ninety days after so finding, hold a disposition hearing and make a disposition order pursuant to Section 42. While the Act does not make it clear that time limits can be extended by the consent of parties subject to the approval of the court, counsel for H.W. does not argue that "the Learned Trial Judge's decision should be overturned because the matter exceeded the 90-day rule in s. 41. The parties, including H.W., consented to the extension of this 90-day period to ensure all evidence was placed before the court." Rather, she refers to it to highlight her concerns under s. 42(1), which provides that: 42(1) At the conclusion of the disposition hearing, the court shall make one of the following orders, in the child's best interests: . . . The permissible orders range from dismissal to permanent custody, including several temporary strategies, but they do not include the option of an adjournment, lengthy, indefinite or otherwise, of the making of an order. Neither do they include the refusal to make an order, which is included in the definition of an order in s. 3(1)(g) of the Act. The Family Court judge sought his authority to reserve his decision in Section 8 of the Family Court Act, which provides: Upon the hearing of any proceeding, the presiding judge of the Family Court may, of his own motion or by consent of the parties, reserve judgment until a future day, not later than six months from the day of reserving judgment. The appellant's position is that the more general provisions of the Family Court Act cannot override the specific time allowances in the Family and Children's Services Act. She submits that her research did not disclose another case in which a disposition order was made more than seven days after the close of the hearing. The Family Court judge was aware of the problem created by his delay and dealt with it in his judgment, concluding as follows: The Court relies on the informed consent of all parties and has done so in this particular case. This court finds that the statutory six month period for reserving judgment was extended by the tendering of additional evidence. This Court rejects the submission of Diane Paquet that "judgment was reserved by the Court on December 28, 1995, and the admission of the small amount of additional evidence after that fact did not start the proceeding afresh." This court finds that the "hearing of any proceedings" concludes only upon the completion of all the evidence and the receipt of argument with respect thereto. The addition of further evidence by consent of all parties did extend the six month period. It is the determination of this court that it continues to have jurisdiction pursuant to Section 8 of the Family Court Act. It is further the finding of this Court that all parties consented to the extension of the time limits provided by Section 41 of the Children and Family Services Act and in so doing the parties cannot restrict exercise of judicial discretion by the Family Court ("on (its) own motion") to reserve judgment of the Court in compliance with Section 8 of the Family Court Act. (Emphasis in original.) The Family Court Concern The difficulties Family Court Judges have experienced with the time limits imposed by the Children and Family Services Act were given eloquent expression by Judge Levy of that court in Family and Children's Services of Annapolis County v. A.M. (1996), N.S.J. 331 (F.C.). He stated at paragraph 25: The issue of the time frames under the Act has been the cause of no end of problems for the Family Court Bench and for counsel. That which has been put in place to serve the best interests of children has come close to being their master. . . . He went on at paragraph 27: None of this is to say that the time limits are unimportant, or that they should not be met if at all possible. Neither is it a wish to return to the excesses under the previous Act when some matters may have dragged on far too long with perhaps too little regard to the "child's sense of time." With legislated and specific time frames a feature of the Act, it would appear that they are to have greater force than those fewer and possibly "lopsided" time frames that were in the Children's Services Act. But are they mandatory? What is the remedy for a breach? The Act, for example, could have expressly stipulated that if a deadline were missed that the Court lost jurisdiction. The Act could have stipulated in Section 2, the section which states that the child's best interests were to be the paramount consideration, that these best interests were not to be seen as paramount to the time limits. The Preamble to the Act could have expressly stated that the child's sense of time is more important than the integrity of the family. None of this was done even though the legislature, certainly the author of the legislation, would have been aware of certain cases which I will note later had been decided. Nothing in the Preamble suggests that time limits, or the "child's sense of time", are to have priority over the best interests of the child, or to the integrity of the family, or to the rights of the parties to a fair and full hearing. Can it be that the legislature intended that these time limits be sacrosanct regardless of whether there would be a denial of natural justice? Regardless of whether information vital to determining the best interests of the children can be available in time? Regardless of sudden illness or death in the family? Regardless of the damage done to the integrity of the family? Regardless of whether the Court had to sit day and night? Judge Levy argued that the "saving provision" in the Act is s. 2(2) requiring that paramountcy be given to the best interests of the child, "the prism through which all decisions, procedural and substantive, are to be viewed." ". . . An almost identical section was the one that was used under the previous Act to override the time limits, and that fact was known to the legislature when the new Act was passed. . . . If there is an unavoidable conflict between the best interest of a child and the time limits the best interests considerations must govern. The time limits are not a stand-alone imperative; they exist to serve the child or they exist for no reason at all. In a subsequent decision in the same matter, which involved vital expert evidence not available until after the expiry of the time limit for the order in a disposition hearing, Judge Levy found jurisdiction had been lost. Ordinary Meaning Judge Levy's remarks raise considerations appropriate to an analysis of the statutory time limits under the "ordinary meaning rule" discussed by Professor Ruth Sullivan in Driedger on the Construction of Statutes, 3rd Edition, Butterworths, Toronto, 1994. She states at p. 7: As understood and applied by modern courts the ordinary meaning rule consists of the following propositions: (1) It is presumed that the ordinary meaning of a legislative text is the intended or most appropriate meaning. In the absence of a reason to reject it, the ordinary meaning prevails. (2) Even where the ordinary meaning of a legislative text appears to be clear, the courts must consider the purpose and scheme of the legislation, and the consequences of adopting this meaning. They must take into account all relevant indicators of legislative meaning. (3) In light of these additional considerations, the court may adopt an interpretation in which the ordinary meaning is modified or rejected. That interpretation, however, must be plausible; that is, it must be one the words are reasonably capable of bearing. In the present appeal "relevant indicators of legislative meaning" include s. 2 and the following passage from the Preamble to the Children and Family Services Act : AND WHEREAS children have a sense of time that is different from that of adults and services provided pursuant to this Act and proceedings taken pursuant to it must respect the child's sense of time. Section 2 states the purpose of the Act: 2 (1) The purpose of this act is to protect children from harm, promote the integrity of the family and assure the best interests of children. (2) In all proceedings and matters pursuant to this Act, the paramount consideration is the best interests of the child. The Act must be interpreted to attain these objects, particularly when the legislature has been at pains to identify an object as a "paramount consideration." Section 9 (5) of the Interpretation Act R.S.N.S. 1989, c. 235 provides: 9(5) Every enactment shall be deemed remedial and interpreted to ensure the attainment of its objects by considering among other matters (a) the occasion and necessity for the enactment; (b) the circumstances existing at the time it was passed; (c) the mischief to be remedied; (d) the object to be attained; (e) the former law, including other enactments upon the same or similar subjects; (f) the consequences of a particular interpretation; and (g) the history of legislation on the subject. In my view, on a proper interpretation of the time limits contained in the Children and Family Services Act, the object of eliminating the excessive time delays experienced under the previous legislation can best be attained not at the expense of the paramount consideration but by giving the best interests of children their fullest and broadest effect. What Judge Levy has pointed out, and what this appeal illustrates, is that the time limits, which give effect to the concern expressed in the Preamble, are sometimes in conflict with the best interests of the child. When that occurs, the legislation must be given a construction consistent with the best interest of the child. In my view the ordinary meaning of the legislation creating the time limits cannot be ascertained from looking at the sections containing those specific provisions standing alone; they must be read in light of the Preamble and s. 2. The alternative, loss of jurisdiction which nullifies all proceedings prior to the infringement of the time limit, may not only be contrary to the best interests of the child but to the concern addressed in the Preamble, and to the intent of the time limits themselves. Nullification after a child is found in need of protection either deprives a child of that protection or subjects it to the delays inherent in starting proceedings all over again from the beginning. Child protection proceedings become a game of "snakes and ladders". Because their meaning varies with their context from case to case, depending on whether there is a conflict with s. 2, I would consider the time limits provisions to be not mandatory but strongly directory, to be obeyed to the fullest extent possible consistent with the best interests of the child. An error in extending a time limit to serve the best interests of a child would then be an error of law, subject to appeal, but would not result in the loss of jurisdiction nullifying proceedings. It is neither logical nor pragmatic that a court can be wrong as to a child's best interests and retain jurisdiction but, if it is wrong respecting a time limit, it is shorn of jurisdiction. Best Interest of the Child The Supreme Court of Canada applied the paramountcy of the best interest of the child as the determining principle in Catholic Children's Aid Society of Metropolitan Toronto v. M.(C.), [1994] 2 S.C.R. 165. In that case a child taken from her mother when a month old was still in the system seven years later and had bonded to her foster mother. There had been a specific breach of s. 70(1) of the Ontario Children and Family Services Act which provided for a two-year limit on proceedings. It was found in the best interests of the child to stay with her foster mother. Writing for the court, L'Heureux-Dube J. stated at p. 204: Finally, it is clear that the best interests of a child require different solutions over time and such interests may have to take precedence over any parental interest. As was recently said in Young v. Young, supra, at p. 60 the "furtherance and protection of the child's best interests must take priority over the desires and interests of the parent." Further, as examined in New Brunswick (Minister of Health and Community Services) v. S.G. and S.A. (1989) 100 N.B.R. (2d) 357 at page 360, a child's best interests must take precedence over all other considerations including the effect of delay: While it is correct to say that there are administrative delays in the processing of the guardianship application in this case, there is not proof that the delays were deliberate or that there was any bad faith on the part of anyone involved in the proceedings. Moreover, it is to be observed that the trial judge never lost sight of the fact that the sole issue before him was to determine what was in the "best interests" of the child S.G., Jr. Other cases which have reached similar conclusions include: Langille v. Children's Aid Society of Halifax N.S.C.A. June 18, 1993, unreported; Winnipeg Child and Family Services v. F. (A.C.) 1992 (42 R.F.L.) (3d) 337 (Man. C.A.) and most recently Taroe v. Siwan B.C.C.A., Victoria Registry Number VO1916. Auigust 19, 1993, unreported. E.C. v. Family and Children's Services of Lunenburg (1988), 86 N.S.R. (2d) 302 (Co. Ct.) was decided under the previous Act but applied the principle of the best interest of the child to override an alleged loss of jurisdiction resulting from a delay. It was held: The manifest intention of the legislature was that the Children's Services Act should be applied in the best interests of children affected by it. I find it is not in the best interests of such children that Section 49(1)(e) be applied so as to deprive a court of jurisdiction in such a rigid, absolute, automatic manner as to make a nullity of proceedings which are in the best interests of a child. This section seems clearly to require that it be interpreted as a procedural or directory as opposed to a mandatory provision. Jurisdiction There are no matters in issue in the present appeal prior to the disposition hearing. I would proceed on the principle that the time limits are to be given their literal meaning unless a conflict with the best interest of the child can be identified by the Family Court as a finding of fact. In that event, the paramount consideration must prevail. In the present appeal the children were found in need of protection, which triggered the requirement that their interests be protected by a disposition hearing within ninety days. The Family Court Judge carefully canvassed the options and determined that the earliest it could be held, as a matter of practical necessity, was beginning November 16, 1995, the last day of the ninety-day time period. This confronted him with two alternatives: nullify the proceedings or carry on with them beyond the time limit. Nullifying the proceedings was not in the interest of children who had been found in need of protection; proceeding with them somewhat tardily was in their best interests. While there is not a specific finding, it is clear from the decision that the Family Court judge was guided in this regard by the paramount consideration. In my view jurisdiction is preserved by a finding of fact that proceeding beyond the time limits set out in the Act is in the best interest of the children. The threshold is necessarily high respecting s. 41: the mere convenience of court or counsel will not suffice. With respect to a s. 40 protection hearing I would consider the principle to be the same but the evidentiary burden to be much heavier. The consent of counsel is not a governing factor, but may be relevant in assessing the interests of the child. Consent cannot create jurisdiction beyond the statutory time limits in the absence of a finding as to the best interests of the child, and where there is such a finding the consent of counsel is not necessary. The Family Court was therefore within its jurisdiction to proceed with the disposition hearing beyond November 16, 1995. Therefore the proceeding was no longer within the time limit imposed by s. 41(1). Once that requirement was avoided, it could not be reimposed and ceased to have a direct relevance to the proceeding. Section 41(1) states: 41 (1) Where the court finds the child is in need of protective services, the court shall, not later than ninety days after so finding, hold a disposition hearing and make a disposition order pursuant to Section 42. It is this section which imposes a duty upon the judge to make the disposition order within ninety days of the protection order. Section 42 (1) provides: 42 (1) At the conclusion of the disposition hearing, the court shall make one of the following orders: . . . This section governs the kind of order that can be made at the end of the disposition hearing, but it does not purport to impose a time limit. That is imposed by s. 41. Having escaped the time constraints of s.41, the Family Court judge considered himself governed by s. 8 of the Family Court Act. He reserved judgment of his own motion and then considered that he had six months to render a decision. The admission of evidence and the hearing of submissions in January and February of 1996, accompanied by further reservations of judgment, would have reset the date when the six month period began to run. In my view this approach is in error of law. The Family Court Judge was correct in finding that it was in the best interests of the children to take evidence and hear submissions beyond the 90-day period specified in s. 41. He was then no longer bound by a specific statutory deadline. He was however bound by consideration of the best interest of the children pursuant to the Children and Family Services Act, including the principles of the Preamble. That best interest could not be reconciled with the six-month deadline for a reserve decision provided by s. 8 of the Family Court Act. Before reserving his decision the Family Court judge should have determined whether a time extension for a reserve decision was in the best interests of the children, and made a further finding. The length of any extension should have been strictly constrained by the principles of the Children and Family Services Act, including the Preamble. The objectives reflected by the 90-day deadline in s. 41 should have been considered for guidance: each day beyond the 90 becomes more difficult to justify in the best interests of the children. Although the Family Court Judge was wrong in law, and possibly vulnerable to judical review before filing his decision, I am not satisfied he was without jurisdiction under s. 8 of the Family Court Act when he gave his decision. He had lawfully retained jurisdiction into the time period when s. 41(1) no longer governed. In the absence of a clear statutory provision terminating his jurisdiction there was no point at which his jurisdiction was cut off so as to make a nullity of his judgment. The evidence was properly received during the disposition hearing after November 16, 1995, and it was with respect to that evidence that his judgment was rendered. The order he eventually issued was of a kind mandated by s. 42(1). Except for the delay, everything was in order. The children were first taken into care April 16, 1994. The boy J. would have little recollection and the girl H. would have none of the period in their lives before they began to be processed by the system. The decision finally reached by the Family Court judge was intended, not merely by himself but by the legislature in enacting the statute, to replace that period of uncertainty with an era of stability. If his decision is otherwise in the best interests of the children, which remains to be determined, it would not be in their best interests for it to be found to be a nullity made without jurisdiction. The Disposition This court remarked in Children's Aid Society of Cape Breton v. S.G. (1995), 14 N.S.R. (2d) 57 (C.A.) at p. 60-61: In child welfare matters, the deference to be shown the decision of the trial judge, in the assessment of errors of law and fact, must be determined in the light of the best interests of the child as defined by the Children and Family Services Act. . . . In the course of his decision, which appears thorough and painstaking, the Family Court Judge made a number of findings respecting the appellant. Some were positive, but they included the following, which are relevant to the best interests of the children. -That H.W. (the mother) has an anxiety disorder, combined with extreme addictions including alcohol, medications and caffeine. -The Court finds that there has been a long history of agency intervention to assist H.W. and provide services to H.W. -The Court finds there has been a consistent and repeated failure by H.W. to abstain from consumption of alcohol to the extent that J. and H. (the two children) have been repeatedly put at risk. -The Court finds that H.W. has continued to involve herself in inter-personal relationships which put the children at risk. -The Court finds the parenting plan proposed on behalf of H.W. is insufficient and not in the best interests of the children. -The Court finds that H.W. has repeatedly failed to take professional advice and guidance . . . The Court finds according to the evidence of H.W. that H.W. did not come to terms with her own addictive behaviour until September, 1995. -The Court finds that after the acceptance of her addictive behaviour in September, 1995, H.W. resumed drinking September 30, 1995. -The Court finds there is clear and convincing evidence that H.W. lacks the necessary openness, honesty and willingness to confront and deal with her addictive behaviours. -H.W.'s failure to confront her addictive behaviours has resulted in her lifestyle choices taking priority over the needs and best interests of the children. . . . As a result of these findings the Family Court Judge concluded: The decision of this Court is that credible evidence has clearly established, by a high degree of probability, that the plan of the Agency (and the parenting proposal of D.L. (J.'s father) as it relates to J.) have become absolutely necessary to protect the best interest of the children. This Court orders . . . that the child H. shall be placed in the permanent care and custody of the agency. . . This Court orders that consistent with the custody application of D.L. and the Agency's plan, the child, J., shall be placed in the sole custody of his father, D.L. . . . subject to conditional access by H.W. In light of the findings with respect to H.W. quoted above, these dispositions appear to be in the best interests of the children. I would dismiss the ground of appeal asserting that the Family Court judge had lost jurisdiction, and that the proceedings were therefore null and void, for the reasons given above. It would be clearly contrary to the best interests of the children to decide otherwise. Although the Family Court judge was wrong in law in holding that he was entitled to delay his disposition order under the Children and Family Services Act for the six months provided by the Family Court Act for rendering a reserved decision, in the present circumstances interference with a decision that is otherwise in the best interests of the children is not appropriate. In other circumstances the remedy for inordinate delay by a Family Court judge in rendering a decision might be judicial review by way of mandamus. The Least Intrusive Intervention The appellant also asserted as a ground of appeal: The learned trial judge erred and did not find the least intrusive method of intervention when he placed H. in the permanent care and custody of the respondent agency before making inquiries whether it was possible to place her with a relative, neighbour, or other member of the child's community or extended family, pursuant to Section 42(1) of the Children and Family Services Act. The appellant's submission is that "consideration should have been given to a placement with either the respondent, B.S., or in the alternative, members of Mr. S.'s family or Ms. W.'s family ." In fact, an application by B.S., the father of H., was one of the matters consolidated before the Family Court judge. He not only considered placement of H. with B.S. but he specifically dismissed the application after making the following findings: The court finds that B.S. has long-standing addiction problems and significant personal problems with little or no history of counselling or therapeutic services to deal with these problems. This court finds that B. S. has limited support from his extended family and the parenting plan proposed by B. S. with respect to the parenting of the child, H., is insufficient to adequately address the best interests of H. There was evidence of H.W.'s relationship with her family before the Family Court judge, and no evidence that any family members were sufficiently interested in H. to take responsibility for her care. The agency submits: . . . consideration of Ms. W.'s own personal background would be sufficient to raise considerable doubt as to the appropriateness of any placement with Ms. W.'s parents. After arriving at the disposition set out above, the Family Court judge made the following observations, which are supported by evidence.: In ordering these placements, the Court has considered Section 42(3) and Section 43(4) and finds that this Order is the least intrusive, considering the best interests of the children and this the Court is satisfied that the circumstances are unlikely to change within a reasonably foreseeable time. I would dismiss this ground of appeal. The remaining issues raised in the appeal involve questions of fact. Perusal of the materials filed with this appeal discloses abundant evidence in support of the strong findings made by the Family Court Judge. The burden of showing reversible error, either that he proceeded on a wrong principle of law in arriving at his decision, or committed palpable and overriding error in his assessment of the facts, has not been met. I would dismiss the appeal without costs. Freeman, J.A. Concurred in: Hart, J.A. HALLETT, J.A.: (Concurring) I agree with Justice Freeman's decision to dismiss this appeal. He has reviewed the facts. Having reviewed the record, there is no question in my mind that the Family Court judge was correct in the decision he reached as to what was in the best interest of the children. For the reasons I will set out, and even assuming the Family Court judge had lost jurisdiction, I am satisfied this Court has jurisdiction to deal with the matter that was before the Family Court. By S.N.S. 1992, c. 16 a separate Appeal Court was established in Nova Scotia. Section 38(2) of the Judicature Act, R.S.N.S. 1989, c. 240, as amended, pursuant to S.N.S. 1992, c. 16 states: "38 (2) The Court of Appeal also has jurisdiction as provided by any Act of the Parliament of Canada or of the Legislature." Section 49 the Children and Family Services Act, S.N.S. 1990, c. 5 provides for an appeal from a disposition order to the Appeal Division of the Supreme Court. Section 49(6) states: "49 (6) The Appeal Division of the Supreme Court shall (a) confirm the order appealed; (b) rescind or vary the order; or (c) make any order the court could have made." (emphasis added) Section 9 of the Judicature Act, R.S.N.S. 1989, c. 240, as amended by S.N.S. 1992, c. 16 provides: "9 A reference in any enactment to the Supreme Court in banco or a judge thereof or to the Appeal Division of the Court or a judge thereof is, whether expressed in those terms or not, a reference to the Court of Appeal or a judge thereof and shall be so construed." The Childrens and Family Services Act provides that in all proceedings pursuant to the Act the paramount consideration is the best interest of the child (s. 2(2)). As the Family Court now has jurisdiction to deal with custody matters, the Legislature, in enacting s. 49(6) of the Act, recognized the need to confer on this Court broad jurisdiction in dealing with custody issues on appeal from Family Court decisions. That jurisdiction authorizes this Court to make any order the Family Court could have made in the proceedings under appeal. As the paramount consideration in any proceedings under the Children & Family Services Act is to determine what is in the best interests of the child, s. 49(6) of the Act should be interpreted with that paramount consideration in mind. It would not be consistent with that principle to interpret s. 49(6) restrictively. To interpret the section as meaning that if the Family Court judge had lost jurisdiction and, as a result his order was a nullity, then this Court could not make an order, would not be consistent with the legislative intent as set out in s. 2(2) of the Act. Nor would it be consistent with the historic exercise of parens patraie jurisdiction of superior courts in matters involving the welfare of a child. (Re S. (an infant), [1965] 1 All E.R. 865 (C.A.); Children's Aid Society of Winnipeg v. N. (1979), 9 R.F.L. (2d) 326 at 331 (Man. C.A.); and Rebus v. McLellan, [1994] N.W.T.R. 1 (N.W.T.C.A.)). Therefore, even if a Family Court judge had lost jurisdiction, this Court can exercise jurisdiction and make any order the Family Court judge could have made had jurisdiction not been lost. Having considered the record and the decision of the Family Court judge, it is not in the interest of these children to order a new disposition hearing before a Family Court judge. In my opinion, it is in the best interest of the children that the child H be placed in the permanent care and custody of the agency and the child J. in the sole custody of his father J.L. I would dismiss the appeal without costs. Hallett, J.A.