C.I. v. Children's Aid Society of Shelburne County

C.I. v. Children's Aid Society of Shelburne County Court Court of Appeal Date 2001-07-04 Citation 2001 NSCA 108 Docket 160632, CA 170194 Judge/Registrar/Adjudicator Bateman, Nancy J. (Honourable Justice) (CA); Hallett, J. Doane (Honourable Justice) (CA); Oland, Linda L. (Honourable Justice) Document Type Decision Relations Library Sheet - C.I. v. Children's Aid Society of Shelburne County - 2001 NSCA 108 - 2001-07-04 - Library Sheet Decision Content Date: 20010704 Docket: CA 170194 CA 160632 NOVA SCOTIA COURT OF APPEAL [Cite as: C.I. v. Children’s Aid Society of Shelburne County , 2001 NSCA 108] Bateman, Hallett and Oland, JJ.A. BETWEEN: C.(I.) and C. (H.R.) Appellants - and - CHILDREN’S AID SOCIETY OF SHELBURNE COUNTY Respondent AND BETWEEN: A.(C.) and S.(D.) Appellants - and - CHILDREN’S AID SOCIETY OF SHELBURNE COUNTY Respondent REASONS FOR JUDGMENT Counsel: Johanne L. Tournier for the appellants I.C. and H.R.C. Timothy D. Landry for the appellants C.A. and D.S. Donald G. Harding for the respondent Appeal Heard: June 15, 2001 Judgment Delivered: July 4, 2001 THE COURT: Appeal of I.C. and H.R.C. allowed and appeal of C.A. and D.S. dismissed per reasons for judgment of Bateman, J.A.; Hallett and Oland, JJ.A. concurring. PUBLISHERS OF THIS CASE PLEASE TAKE NOTE THAT s. 94(1) OF THE CHILDREN AND FAMILY SERVICES ACT APPLIES AND MAY REQUIRE EDITING OF THIS JUDGMENT OR ITS HEADING BEFORE PUBLICATION. SECTION 94(1) PROVIDES: 94(1) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or a relative of the child. Editorial Notice Identifying information has been removed from this unofficial electronic version of the judgment. BATEMAN, J.A.: [1] This is an appeal by the biological parents, C.A. and D.S., from a decision of Chief Judge John Comeau of the Family Court. Their application for leave to apply to terminate a permanent care order made in relation to their daughter B.J.S. was refused. At the same time the child's foster parents, H.R.C. and I.C., applied unsuccessfully to be joined as parties to the child welfare proceeding. The Cs appeal that disposition. The respondent is the Children’s Aid Society of Shelburne County (the “Agency”). Background: [2] B.J.S. was born September *, 1997. She was placed with the Cs when she was only eleven hours old and continued to live with them at the time of this application. [3] The Cs have three adult children. Living at home at the time of this application was their fourth child, a son, who was adopted by them and is now twelve years old, a seventeen year old foster daughter and B.J.S. They have provided fostering for the Agency since 1987 having had the care of about twenty foster children over the years. [4] When B.J.S. was about a year old, the Agency advised the Cs that, at the Agency's initiative, the biological parents were prepared to consent to permanent care of B.J.S. if the Cs would commit to adopt her. They agreed. The order for permanent care was issued on December 28, 1998. It was understood by the Cs at that time that if no suitable biracial adoptive home were found, they would be at liberty to adopt B.J.S. Although there was no provision for access in the permanent care order, the Cs have permitted C.A. and D.S. to visit B.J.S. weekly. In the fall of 1999 the Cs were approved to adopt B.J.S. They expected the adoption to proceed in July 2000. Through unexplained delay on the part of the Agency the adoption was not completed. [5] In October 2000, I.C.’s father, L.C., was charged with sexual assault. The alleged victim was about thirteen years old when the assault is said to have happened, about twenty years ago. The Cs agreed to give a statement to the police, attesting to what they knew of L.C.'s behaviour. They acknowledged that approximately fifteen years ago they had been told of the allegation by the alleged victim. At that time the victim suggested that the Cs' daughter, M., who was then fifteen years old, may also have been assaulted by her grandfather. When asked, M. acknowledged to her parents that on one occasion only her grandfather had pressed up against her when she was in the kitchen. There was only that one occurrence. Both M. and the other victim asked that the incidents not be disclosed to the police. The Cs acceded to their request. [6] Thereafter, the Cs warned any young woman in their home that she should not risk being alone with L.C. In addition, they confronted him and cautioned that they would report any further occurrences to the police. To their knowledge there have been no problems since then. [7] At the time of providing her statement to the police, H.R.C. disclosed that she had a longstanding affair with L.C. which had ended some fifteen years before. I.C. was not aware of it at the time of giving her statement. At the urging of the Agency she has since told him about it. They are committed to their marriage continuing. [8] As might be expected, the Agency was concerned about both the affair and the alleged sexual abuse. It was the Cs' understanding that the Agency would investigate the situation and that until the investigation was completed their status as foster parents and prospective adoptive parents was on hold. [9] By all accounts, the Cs have been exemplary “parents” for B.J.S. She has a number of physical and emotional challenges which may be attributable to her biological mother's prenatal drug abuse. From the outset she has had feeding problems, suffers from asthma, was developmentally delayed, requires speech therapy, has poor eyesight, some hearing loss, has certain minor features of Fetal Alcohol Syndrome, and, possibly, a degree of autism. She has, since birth, required regular and frequent medical attention, all of which has been facilitated by the Cs. [10] On January 16, 2000 the Cs applied to the Family Court to become parties to the child protection proceeding which had resulted in the permanent care order. Their application was effectively dismissed, in part, at the January 29 hearing. Sometime after that first hearing, the Cs were told by the Agency that they were no longer acceptable as foster or adoptive parents. B.J.S. would be removed from their home at an unspecified time. [11] On February 5, 2000 C.A. and D.S. sought leave to apply to terminate the permanent care order, in the hope that B.J.S. would remain in the care of the Cs. The Cs asked to be added as parties to the termination application, should leave be granted. Those applications were dismissed. Issues: [12] The issues arising can be stated as follows: 1. Did the judge err in refusing to grant to the foster parents, party status pursuant to s. 36(1)(f) or s.36(4) of the Children and Family Services Act, S.N.S. 1990, c. 5, as amended (the CFSA)? 2. In refusing to grant leave to the parents to apply to terminate the permanent care order, did the judge err in that he applied the wrong test? Fresh Evidence: [13] The Cs have applied to have admitted fresh evidence on this appeal. The Agency opposes its receipt. We are satisfied that it is unnecessary to admit that evidence for the purpose of resolving the appeal. Analysis: [14] Upon the granting of a permanent care order, the Agency becomes the legal guardian of a child and as such has all the rights, powers and responsibilities of a parent or guardian for the child's care and custody. (s. 47(1) CFSA, S.N.S. 1990 c. 5, as amended) [15] A permanent care order may be terminated by the court (s. 48(1)(d) CFSA) on application by a party: 48(3) A party to a proceeding may apply to terminate an order for permanent care and custody or to vary access under such an order, in accordance with this Section, including the child where the child is sixteen years of age or more at the time of application for termination or variation of access. [16] The Cs' only possible course of action, upon learning that the Agency intended to remove B.J.S. from their care, was to apply to terminate the permanent care order. Where two years have elapsed since the making of the order, as was the case here, a party who wishes to apply to terminate must have leave of the court (CFSA s. 48(6)). The Cs did not have standing to apply for the necessary leave unless they were “parties” to the proceeding. A “party” is as designated in s. 36(1) of the CFSA: 36 (1) The parties to a proceeding pursuant to Sections 32 to 49 are (a) the agency; (b) the child's parent or guardian; (c) the child, where the child is sixteen years of age or more, unless the court otherwise orders pursuant to subsection (1) of Section 37; (d) the child, where the child is twelve years of age or more, if so ordered by the court pursuant to subsection (2) of Section 37; (e) the child, if so ordered by the court pursuant to subsection (3) of Section 37; and (f) any other person added as a party at any stage in the proceeding pursuant to the Family Court Rules. (Emphasis added) [17] The relevant Nova Scotia Family Court Rule is r. 5.09 which provides: 5.09 Any person may, with leave of the court and subject to enactments respecting confidentiality, intervene in a proceeding and become a party thereto where, such person (a) claims, and to the satisfaction of the court by the filing of an affidavit containing the grounds for the intervention, can show a direct interest in the subject matter of the proceeding, concerning the enforcement of the judgment therein; or (b) has a right to intervene under an enactment or Rule. [18] I will first consider the refusal by the judge to permit the Cs to join as parties to the proceeding. On January 16, 2001 the Cs filed an application with the Family Court asking, inter alia, to become parties to the protection proceeding. There was an initial hearing before the Chief Judge on January 29th. At that time counsel for the Cs stated that her clients sought party status pursuant to s. 36(1)(f) of the CFSA. It was the Agency's position that the only option open to the Cs was to seek full party status under s. 36(4), upon the biological parents making application for leave to apply to terminate. Section 36(4) provides that a foster parent who has had care of the child for the preceding six months has a right to limited participation on a termination application, but may be granted additional status by the Court: 36(4) On a hearing to review a disposition order pursuant to Section 46 or on an application to terminate, or vary access under, an order for permanent care and custody pursuant to Section 48, a foster parent, who has cared for the child continuously during the six months immediately before the hearing or application, (a) is entitled to the same notice of the proceeding as a party; (b) may be present at the hearing; (c) may be represented by counsel; and (d) may make submissions to the court, but shall take no further part in the hearing without leave of the court. (Emphasis added) [19] At the time of the January 29th hearing, the biological parents had not sought leave to make application to terminate the permanent care order. The Cs' participation under this section would depend upon C.A. and D.S. being granted leave to apply to terminate the permanent care order and thereafter initiating a termination application. Party status pursuant to s. 36(1)(f) was clearly the preferable route for the Cs. As parties they could, on their own behalf, seek leave to apply to terminate the permanent care order. Their fate would not depend upon the success of the biological parents' application for leave. [20] The court, however, endorsed the Agency’s view and directed counsel for the Cs that their only option was to pursue party status pursuant to s. 36(4). Section 36(4) permits foster parents participation “on an application to terminate”. By limiting the Cs' application to s. 36(4), should the biological parents not apply for or be granted leave to terminate, there would be no application in which the Cs could join. At a further hearing the biological parents' application for leave was dismissed. [21] It is the Cs' submission that the court erred in refusing to consider their application to be made parties pursuant to s. 36(1)(f). They were asking for independent party status not simply as foster parents, but in their capacity as long term caretakers of B.J.S. and prospective adoptive parents. [22] Section 36(1)(f) provides for the addition of a person as a party “at any stage in the proceeding”. In the Annotated Children and Family Services Act, August 1991, by D. A. Rollie Thompson, Dalhousie Law School, Halifax, Nova Scotia, the author says of these sections commencing at p. 125: . . . A notable change is s. 36(1)(f), which permits any person to be added as a party, with leave of the Court as provided under the Family Court Rules, thereby obviating any need for Ministerial authorization. This last provision will permit relatives and other individuals with any relationship with the child to seek standing from the Court, consistent with the more flexible approach towards interim and final dispositional alternatives found in the Act. [23] And as to s. 48(3), commencing at p. 248: Commentary: Under the former Act, status to bring a termination application was restricted to three classes of parties, “and no other person”: the agency with care and custody, a parent of the child, or a person who received or was entitled to receive a Notice of Taking Into Care. . . . The new Act widens standing to apply for termination, empowering any “party” to bring the application under this subsection. Thus, any person qualifying as a “party” under Section 36 in the protection proceeding has the necessary status to commence the application. Included is any person who was served as a “parent or guardian”, as well as any person who obtained standing with leave pursuant to Section 36(1)(f) in the proceeding that terminated in the permanent wardship order. . . . A foster parent who has cared for the child “continuously during the six months immediately before the hearing or application” must also be served with notice of an application to terminate or to vary access, although Section 36(4) makes clear that such a foster parent is not a “party” and hence cannot initiate an application under this subsection. Lastly, in this analysis of who is a “party”, a relative who was not involved at the prior stages of the proceeding may seek leave to be added as a party, pursuant to Section 36(1)(f), in order to enable him or her to make a termination application. For example, a relative located in another province may learn of the child becoming a permanent ward and may wish subsequently to seek custody of the child. Under the new Act, that relative can seek to obtain party status, to present a plan to the Court. Presumably the Court would have to be satisfied of the reasons for the absence of prior involvement and of the viability of the proposed plan, in order to grant leave in such a case. . . (Emphasis added) [24] While this commentary is not binding authority it is of some persuasive value and has often been used by the courts as an aid to interpreting the CFSA. Professor Thompson speaks of a “relative” being joined as a party in order to apply for a termination order, however, the CFSA does not limit added parties to those related to the child. Nor is it a bar that the protection proceeding has been concluded and, in that sense, is not active. The court retains jurisdiction to make further orders in relation to the child under s. 48. In my view, there is a “proceeding” to the extent necessary to apply for party status. Were that not the case, no one could be added as a party, after the granting of the permanent care order, unless a termination application was in progress. [25] Foster parents are generally not parties to the initial protection proceeding. Once a permanent care order has been granted and termination of that order is sought, however, the CFSA, in s. 36(4), contemplates a role for foster parents, as of right. The CFSA provides, as well, that a court can grant to foster parents an expanded role in a termination proceeding. A foster parent is not, however, precluded expressly or by implication from being joined as a party to the proceeding. Had the Legislature so intended it could have said so in simple terms. (See, for example, s. 64 of the Child and Family Services Act, R.S.O. 1990, c. C.11; G. (C.) v. Catholic Children's Aid Society of Hamilton-Wentworth (1998), 161 D.L.R. (4th) 466 (Ont.C.A.). Under that legislation a foster parent cannot fit within the defined group of persons permitted to apply for a post-permanent care review hearing.) [26] I would agree with the observation of Professor Thompson that a person who did not participate in the original proceeding yet is offering as a candidate to care for the child may, under the liberal wording of the legislation, apply to be joined as a party under s. 36(1)(f) for the purpose of commencing a termination application. [27] “In all proceedings and matters pursuant to this Act, the paramount consideration is the best interests of the child” (s. 2(2) CFSA). As Professor Thompson notes, this principle must “govern not only the substance of decisions but also the process whereby such decisions are reached”. It cannot be consistent with B.J.S.'s best interests to summarily dismiss the application of the Cs, who are her psychological parents. It is in B.J.S.'s interests that their request to be heard with respect to her long term care receive substantive consideration. [28] It is important to distinguish between applications by foster parents seeking party status in order to participate in the initial permanent care proceeding, and those applications which follow an order for permanent care. This evolving role of foster parents was discussed by Nasmith, J. in Children's Aid Society of Metropolitan Toronto v. S.(D.), [1991] O.J. No.1384 (Q.L.)(Prov. Div.). There the judge expressed his disapproval at the foster parents having been added as parties to the initial protection application so that they could oppose the agency's plan for placement of the child. He said, commencing at p. 3: As the Metropolitan Toronto Children's Aid Society has emphasized, this case demonstrates a serious misconception about the role and status of foster parents. By looking at the sections quoted above, one can discern quite different stages of protection intervention. It is important to recognize that the role and status of foster parents is very different depending on what stage the protection intervention has reached. There is a brightline distinction between the role and status of foster parents caring temporarily for children whose preliminary protection issues have not been determined as against foster parents caring for children who have been made wards of the state. The first stage of protection intervention is prior to a finding that the child is in need of protection and prior to the point where it is found that there are grounds for removing the child from the family. In legislative terms, that is the stage prior to the initial determinations under sections 37 and 53 of the Act. I find it remarkable how widespread are the misconceptions about the status of foster parents at this initial stage. This is the investigative stage and sometimes the 'assessment' stage. No justification has been established for removing the child from the original family. At this stage the foster parents' 'plan' is absolutely irrelevant and any comparison between the advantages to the child in the foster home and in the biological home is impertinent. It is anathema to the role of the foster parents at this preliminary stage of protection intervention to be setting them up as permanent caretakers and to have them staking their own custodial claims on the child. They should be preparing the child for a return to the family. Until it has been determined that there are grounds for removing the child from the family, and that there is no one in the family who is acceptable as a substitute caretaker, the foster parents cannot be putting forward their own resources as being 'better' than the family's or calling for a comparative analysis of plans as between themselves and the family. Before removal from the family has been justified, foster parents cannot have status to compete for the child and to argue 'attachment' or 'better resources'. In this case, the agency was following its mandate in looking for a caretaker for Mary within her family and it was premature for the foster parents to be considered as alternatives. There is a tacit agreement between the protection agency and foster parents that no claims for custody be made by them until the way has been legally cleared for them. There is a delicate alliance involved in this agreement that would be fractured if foster parents could claim custody for themselves before the preliminary issues had been determined. Sabotage and suspicion would be rampant. The clash between the foster parents and the agency that has emerged from this case would be commonplace. Moreover, if a best interests, comparison between the foster home and the original family were introduced from the beginning of the protection proceedings, there would be no substance to the principles of family integrity, rehabilitation or to priorities for family placements as set out in section 53. Moreover, the trust in temporary foster placements would be in big trouble. There would be a conflict of interest for foster parents from the outset. 'Best interests' comparisons between foster parents and families do not operate from the beginning. At this initial stage, the family priorities supersede the best interests comparison and these legislated priorities do not melt into a 'best interests' mixture. There is no logic in the notion that there can be a 'best interests' comparison of two placements in the sense of determining which of two placements is 'better' and at the same time accommodating the legal priorities given to the family at the initial stages. The fallacy in that position is unbecoming. It is high time the key people in the protection field were clear about these distinctions. Once the family placement has been deemed inadequate, then, and only then, do temporary' foster placements open up for comparison. . . . If comparisons between foster parents and original families were legitimate from the outset, it would be tantamount to declaring open season on each and every child who was moved, however temporarily, into a foster home. When could it not be said that there was an attachment between a foster parent and a child and that moving the child back to the family would break the attachment. When could it not be said that the foster home had advantages over the original home. It would be ironic if foster homes were being chosen where the foster parents were so casual that there was no attachment or where the resources were no better than the family that was being assisted. A major portion of protection work involves a temporary removal of children from a family situation, the putting in place of some help and then a return to the family, often with supervisory safeguards and programmes. According to a recent report from Ontario's Child, Youth and Family Policy Research Centre only five per cent of all children involved with the Children's Aid societies end up in permanent care. One cannot place children in temporary care on an emergency basis or as a precaution pending a hearing on preliminary protection issues as contained in sections 37 and 53 of the Act and then use the time it takes to get to the hearing as part of a rationale for not returning the child to the family. (Emphasis added) [29] I agree with those remarks. However, as Judge Nasmith recognized, the role of the foster parents evolves once a permanent care order is in place. At p. 5: Once the child has been ordered removed from the previous caretakers under section 53(3) and from the family under section 53(4) and once it has been determined that two years is going to pass without a likelihood of reconciliation under section 53(6), then the foster parents can be considered for permanent custody or adoption. At that point, it is definitely relevant to consider the advantages of the foster home. At this point, the child is a ward of the Society. The priorities in section 53 will have been canvassed and dealt with and it will have been deemed necessary to remove the child from the family either temporarily or permanently. There is a stage following a non‑permanent wardship order where the cross‑currents of foster parent attachment and family reconciliation will meet. That is the stage where there is a temporary wardship order and the matter of attachment to foster parents and the possibility of a permanent placement in the foster home begin to become operative. But one must still have regard to the fact that until the two years have passed or until a permanent wardship order has been made, the possibility of reconciliation with the original family should not be lost sight of. Finally, when permanent wardship is ordered, the hope of reconciliation has been abandoned and the interests of the family and extended family have been dealt with, the foster parents are not only free to apply for permanent care of the child but are usually welcomed in that respect due, among other advantages, to the chance of continuity for the child. At this final stage of protection intervention, the role of foster parents has changed completely. Fifteen years ago, foster parents could never be considered as candidates for adoption. This was a blunt way to avoid the conflict we have seen in this case. Most of us who were cognizant of protection issues, were relieved when policies changed and foster parents were allowed to contend for adoption of children who were their wards. This policy shift was a great advance in the options for children. Let us hope this advantage is not lost through its abuse. (Emphasis added) [30] This evolution in the role of the foster parents parallels the change in the court's focus on an application to terminate. With the granting of the permanent care order, the family unit is dissolved. On an application to terminate that order, bonding between the child and her temporary caregivers and the impact upon her of a severing of that tie becomes a central factor. In Catholic Children's Aid Society of Metropolitan Toronto v. M.(C.), [1994] 2 S.C.R. 165; S.C.J. No. 37 (Q.L.) the society sought an order for permanent Crown wardship without access for the purposes of adoption in relation to a child who had been in the care of the society as a temporary ward. This was a status review proceeding pursuant to the Child and Family Services Act. The trial judge ordered that the child be returned to the mother. That order was affirmed on appeal to a judge of the Ontario High Court (General Division). On further appeal to the Ontario Court of Appeal, the child was made a Crown ward, without access. The Court of Appeal rejected the proposition, adopted by the trial judge, that the child must be returned to the parent unless the society could demonstrate that there was some continuing deficiency in the parenting capacity of the natural parent. [31] On further appeal to the Supreme Court of Canada, L'Heureux-Dubé, J., writing for the Court, endorsed the approach of the Court of Appeal. At p. 200 (S.C.R.) she wrote: The examination that must be undertaken on a status review is a two‑fold examination. The first one is concerned with whether the child continues to be in need of protection and, as a consequence, requires a court order for his or her protection. The second is a consideration of the best interests of the child, an important and, in the final analysis, a determining element of the decision as to the need of protection. The need for continued protection may arise from the existence or the absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time. As the Court of Appeal said: We agree that a children's aid society, as the representative of the state, must continue to justify its intervention by showing that a court order is necessary to protect the child in the future. Regardless of the conclusion reached at this first stage, the need for continued protection encompasses more than the examination of the events that triggered the intervention of the state in the first place. As the Court of Appeal further noted: We do not agree, however, that this means, in the absence of proof of some deficiency in the present parenting capacity on the part of the natural parent, that the child must be returned to the care of the natural parent. A court order may also be necessary to protect the child from emotional harm, which would result in the future, if the emotional tie to the care givers whom the child regards as her psychological parents, is severed. Such a factor is a well recognized consideration in determining the best interests of the child which, in our opinion, are not limited by the statute on a status review hearing. (Emphasis added) And at pp. 201 - 203 (S.C.R.): The wide focus of the best interests test encompasses an examination of the entirety of the situation and thus includes concerns arising from emotional harm, psychological bonding and the child's desires, which the Act contemplates as well. Within the realm of best interests perhaps the most important factor in the present case, as probably in many others, is regard to the psychological bonding of a child to her or his foster family. . . . Among the factors in evaluating the best interests of a child, the emotional well‑being of a child is of the utmost importance, particularly where the evidence points to possible long‑term adverse consequences resulting from the removal of the child from his or her foster family and the return to his or her birth parents. . . . 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 interests. ... (Emphasis added) [32] Under consideration in M.(C.), supra, was the Ontario child welfare legislation. These principles are equally applicable to a termination proceeding under the CFSA, as is expressly recognized in s. 48(10): 48(10) Before making an order pursuant to subsection (8), the court shall consider (a) whether the circumstances have changed since the making of the order for permanent care and custody; and (b) the child's best interests. [33] Section 48(10)(b), in requiring the court to consider the child's best interests, implicitly refers the court back to s. 3(2) which provides: 3(2) Where a person is directed pursuant to this Act, except in respect of a proposed adoption, to make an order or determination in the best interests of a child, the person shall consider those of the following circumstances that are relevant: (a) the importance for the child's development of a positive relationship with a parent or guardian and a secure place as a member of a family; (b) the child's relationships with relatives; (c) the importance of continuity in the child's care and the possible effect on the child of the disruption of that continuity; (d) the bonding that exists between the child and the child's parent or guardian; (e) the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs; (f) the child's physical, mental and emotional level of development; (g) the child's cultural, racial and linguistic heritage; (h) the religious faith, if any, in which the child is being raised; (i) the merits of a plan for the child's care proposed by an agency, including a proposal that the child be placed for adoption, compared with the merits of the child remaining with or returning to a parent or guardian; (j) the child's views and wishes, if they can be reasonably ascertained; (k) the effect on the child of delay in the disposition of the case; (l) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent or guardian; (m) the degree of risk, if any, that justified the finding that the child is in need of protective services; (n) any other relevant circumstances. (Emphasis added) [34] Once a permanent care order has been made there is a shifting of focus to the best interests of the child, not in the context of the child and a hypothetical care giver offered as an alternative to the parent, but taking into account the new environment the child has come to know. [35] Here, there was no possibility of returning B.J.S. to her biological parents. The only question on a termination application would be whether B.J.S. should be removed from the Cs. The Cs say that, taking into account their connection to B.J.S. and the requirement that the court's decision be guided by the best interests of the child, the judge erred in foreclosing their application to be joined as parties pursuant to s. 36(1)(f) of the CFSA. I would agree. [36] Generally, once a permanent care order is made, all decisions affecting the child are within the discretion of the Agency. This is so because the Agency then stands in the place of the parents: 47 (1) Where the court makes an order for permanent care and custody pursuant to clause (f) of subsection (1) of Section 42, the agency is the legal guardian of the child and as such has all the rights, powers and responsibilities of a parent or guardian for the child's care and custody. [37] The Agency says that the Court has no place interfering with its decisions regarding placement of the child. There is some judicial authority to support this view. In G. (C.) v. Catholic Children's Aid Society of Hamilton-Wentworth, supra, a husband and wife were foster parents, for ten years, to four siblings who had been made Crown wards. As a result of allegations of abuse by the husband, the Agency closed their home to fostering and placed elsewhere the two minor children who were still wards. The allegations against the husband were found to be totally without substance. The foster parents sought custody of the children through an application under the Children's Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”). The agency applied to dismiss their application for custody on the basis that s. 64 of the Child and Family Services Act precluded a foster parent from applying for a status review hearing of a Crown wardship order. It was the agency's position that the custody application under the CLRA was in conflict with this provision. Although unsuccessful before the motions judge, the agency prevailed on appeal and the foster parents' application for custody was dismissed. [38] The appeal court held that by omitting foster parents from those who could apply for termination of a wardship order, the Legislature had evidenced its intent that foster parents not have standing to bring a separate custody application. The Ontario CFSA, the court said, comprised a complete code for children within the child welfare system. Parallel custody proceedings under another statute conflicted with that scheme. The court noted that the foster parents were not without redress for what they believed to be the unwarranted act by the agency in removing the children. The Ontario CFSA provides for advance notice to foster parents and a review mechanism when the agency intends to remove a child (s. 61(7) and s. 68 CFSA (Ont.)). The foster parents had chosen not to follow that route. Their custody application was dismissed. Similarly, in P. (E.) v. British Columbia (Superintendent of Family and Child Services), 1988 CarswellBC 67; 12 R.F.L. (3d) 405 (B.C.C.A.), the appeal court reversed the trial court's order, pursuant to the parens patriae jurisdiction of the court, granting the former foster parents status to apply for adoption or custody of the children pursuant to the Family and Child Service Act, S.B.C. 1980, c.11 (FCSA). [39] In my view there are important distinctions between the Ontario scheme and that in Nova Scotia. Firstly, foster parents, although not within the definition of parents under the CFSA, are not precluded from becoming parties. Secondly, pursuant to s. 48(3) any party may apply to terminate an application, or for leave to do so. In Ontario only the agency, the child or the parent may apply for a status review. Thirdly, our CFSA does not contain a statutory review mechanism as does the Ontario Act. At the hearing of this appeal we were advised that there was a review of the decision to remove B.J.S., conducted by a sister agency. We were not, however, directed to any regulations which govern such review, nor is it my understanding that the Cs were afforded a right to meaningfully participate in the review. Finally, our Family Court Rules specifically provide for a custody proceeding to be joined with a protection matter: 21.07 Any proceeding in the court involving the custody or access of a child may be joined or consolidated with a protection proceeding, in accordance with Rule 16.02. 16.02 Where two or more proceedings are pending in the court, the court may order the proceedings to be consolidated on such terms as it thinks just, or may order them to be tried at the same time, or one immediately after another, or may order any of them to be stayed until after the determination of any other of them. [40] As with the Ontario legislation, the unique wording of the British Columbia FCSA, dictated the result. It was the court's opinion that it was the intent of the legislation that an application to terminate a permanent care order be made only by a parent or the superintendent and not a foster parent. Section 21 of that Act, which preserved the parens patriae jurisdiction of the court, was not to be used to circumvent that intent. The court noted that the right of the foster parents to bring an application for judicial review of the conduct of the superintendent was not in issue. [41] For the above reasons, I am not persuaded that the results reached in G.(C.) or P.(E.) are applicable to our legislative scheme. Indeed, a number of cases in other jurisdictions, although through differing routes, have granted foster parents status in such circumstances. Relevant cases include: G.(H.) v. British Columbia (Superintendent of Family and Child Service), [1987] B.C.J. No. 336 (Q.L.) (B.C.S.C.); F. (M.A.) v. Southeast Child & Family Services, [2000] 10 W.W.R. 479, 2000 CarswellMan 400 (Q.B.); Children's Aid Society of Winnipeg (City) v. Maendel, [1977] 4 W.W.R. 606, 1977 CarswellMan 61 (C.A.); (M.A.S. (Re), [1999] Nu.J. No. 3 (Q.L.)(Ct. Jus.); N.P. (Re), [2001] O.J. No. 441 (Q.L.)(Sup. C.J.); C.M. v. Children's Aid Society of the Regional Municipality of Ottawa-Carlton, [1994] O.J. No. 1570 (Q.L.)(Prov. Div.). [42] It is my view that the trial judge erred in summarily dismissing at the first hearing the Cs' application to be joined as parties, pursuant to s. 36(1)(f), for the purpose of applying for leave to terminate the permanent care order. To dismiss them as simply foster parents having no standing under the CFSA is not to recognize the unique position that they enjoyed in the life of this child. Nor was it appropriate to link their participation to that of the biological parents who have played no custodial role in B.J.S.'s life. [43] Had the judge entertained the Cs' application for party status pursuant to s.36(1)(f), what factors would have been relevant? In my view the question cannot be considered independently of the Cs' intention to use that status to apply for leave to terminate the permanent care order. In the circumstances of this case it is appropriate to consider the application for joinder as a party together with the application for leave to apply to terminate the permanent care order. It would be pointless to grant party status only to deny leave to the Cs to make application to terminate. [44] A significant feature of our legislation is that it permits any “party” to make application to terminate the permanent care order, subject to the leave requirements. The safeguard which prevents those with only a tentative connection to the child from intervening as parties is the requirement for leave. [45] As I have previously discussed, the structure of the CFSA leaves open the possibility of latecomers applying to terminate the permanent care order. The fact that the Cs were not parties to the original protection proceeding is not a dis-entitling factor. That said, for the reasons discussed by Nasmith, J. above, foster parents should not routinely be permitted to join a protection proceeding. This is particularly so before a permanent care order is made. To do so would bring about an undesirable level of complexity and delay and undermine the foster parenting system which is central to the Agency's work. None of this would be consistent with a child's best interests. [46] I am satisfied, however, that by providing for a termination procedure and, particularly, by not limiting those who might so apply to the parents, former caretakers or the agency, the CFSA intends that the court retain a supervisory role. In the normal course, the interests of a child's long term care taker will be championed by the agency and accommodated through an adoption application or other arrangement. In such circumstances the court will not play a substantial role. [47] Where, however, the interests of the care giver do not align with the agency's position the court must be the final arbiter. The court's ultimate supervisory role was recognized, for example, by the Supreme Court of Canada in New Brunswick (Minister of Health and Community Services) v. L.(M.), [1998] 2 S.C.R. 534. At issue was the court's jurisdiction to make an order granting the parents access in conjunction with an order awarding permanent guardianship to the Minister. The agency opposed access. The agency argued that once a permanent guardianship order was made, the parents’ entitlement to access was solely within its discretion. The court acknowledged that under ss. 13, 45(3) and 56(2) of the Family Services Act, S.N.B. 1980, c. F-2.2 the Minister has the necessary discretion to grant or deny the parents access. At the request of the Minister the judge prohibited the parents from having any contact with the children. The parents applied to vary that order. The court held that although the Act was silent on the court's power to order access upon a permanent guardianship order, it was implicit that the court had such a right. Having the power to preserve a right of access after adoption, it would be illogical for it not to have the power to grant access when it makes the initial permanent guardianship order. Writing for the Court, Gonthier J. said: [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). (See also Beson v. Newfoundland (Director of Child Welfare), [1982] 2 S.C.R. 716) [48] The test to be applied on a leave application is not set out in the CFSA and has received little judicial consideration. Generally, it is the parent or person from whom the child had been apprehended that wishes to apply to terminate the order. In such cases a significant focus is the changes that the parent has made in his or her circumstances since the granting of the permanent care order. In Children's Aid Society of Cape Breton v. L.M. and B.M. (1999), 177 N.S.R. (2d) 25 Flinn, J. A., for this Court, approved the test articulated by Levy J. in D.L.G. v. Family and Children's Services of Kings County et al., (1994), 136 N.S.R. (2d) 131 (N.S.Fam.Ct.). Levy J.F.C wrote, at p. 134: [11] . . . the applicant for leave must, in my opinion, present ostensibly credible and weighty evidence that those deficiencies in the parent or her circumstances that led to the care and custody order being granted have improved, or are being convincingly and meaningfully addressed with a realistic expectation of success in the reasonably foreseeable future. . . . [14] The applicant for leave does not have to prove that the children should be returned forthwith. What must be established however, is that there is sufficient evidence to warrant holding a hearing and of having any agency plans, put on hold; some reasonable prospect of success. The parent's rights and her evidence are to be weighed against whatever negative consequences there might be from holding a hearing, and the decision, as with all decisions under the Act, is to be made in the best interests of the children. [49] Judge Levy expressly rejected a requirement that the applicant for leave demonstrate a prima facie case. He said: [9] I am reluctant to state that the applicant for leave must establish a prima facie case. That suggests a case complete on its face and likely to be successful, which would stand unless it is displaced by other evidence or weakened appreciably at trial. [10] For one thing, essential to the ultimate success of any application when leave to be granted is proof that it would be in the child's best interests to terminate (48(10)(b)). It may well be that the applicant lacks sufficient knowledge of the children's present circumstances to address that issue with any degree of specificity, and if so, that parent is unable, at this preliminary stage, to present prima facie (or any) evidence on that crucial aspect. [50] The Cs are not, however, the persons from whom the child was apprehended. It is not necessary for them to address, on the leave hearing, parenting deficiencies which led to the apprehension. [51] In Gray v. Gray (1995), 137 N.S.R. (2d) 161 (F.C.) Legere, J.F.C., as she then was, conducted a thorough review on the law of leave in the context of a birth mother's application for leave to apply (pursuant to the Family Maintenance Act, R.S.N.S. 1989, c. 60 (“FMA”) for custody or access to the child who had been adopted by the maternal grandparents. As under the CFSA, the paramount factor under the FMA is the best interests of the child. Judge Legere listed the following factors as relevant: [189] Taking from the cases then, the guidelines outlined include an application overall of the best interests test having regard to the nature of the application; is it frivolous or vexatious; is there a sufficient interest and/or connection and should the custodial parents be called to respond to this application; are there other more appropriate means of resolving this problem or having the court hear the issue; is there a justiciable issue; are there risk factors associated with this case that calls for court intervention, again in the best interests of the child? Will the leave application, if granted, place the child in more risk of litigation and uncertainty? Are there extenuating circumstances, such as a change in the natural order of access or denial of access? Does the death of one of the custodial parents constitute extenuating circumstances? Is the involvement of the third party destructive or divisive in nature? [190] Any one of these factors in and of itself is not the test. It is a weighing of a combination of these factors in light of the facts presented on the application that leads one to the appropriate conclusion in allowing or denying an application of this sort with such serious repercussions. [52] Drawing upon those factors suggested by Judge Legere and those enumerated in s. 3(2) of the CFSA, I would identify the following areas as relevant and favouring the Cs' application to be joined as parties and for leave to apply to terminate the permanent care order: 1. The Cs are B.J.S.'s psychological parents and the only family that she has known; 2. B.J.S. is now 3 ½ years old and aware that the Cs are her “parents”; 3. The Cs have demonstrated their ability to meet B.J.S.’s special needs; 4. There is concern that B.J.S. may have difficulty in bonding with a new family; 5. B.J.S. may suffer emotional harm in being removed from the care of the Cs; 6. If B.J.S. is left with the Cs, assuming that she is not in danger of abuse, the delay occasioned by the termination hearing should not be a significant factor; 7. There is legitimate concern, discussed below, about the quality of the Agency's investigation of the circumstances which gave rise to the decision to remove B.J.S. from the Cs' care; 8. There are no details about the alternative placement proposed by the Agency; 9. The Agency's reason for removing B.J.S. from the Cs' home does not relate to any deficiencies in their day to day care of her. [53] Militating against party status and leave, is the Agency's concerns about the risk of sexual abuse and about the long term stability of the C. marriage, in view of the disclosure of the affair. [54] As I have said, generally, the Agency decisions about placement of a child in permanent care should be respected and free from court intervention. In circumstances such as these, however, where the Agency has lost confidence in a family intended to be adoptive or long term, it may be appropriate for the court to exercise supervisory jurisdiction. It is particularly relevant here that the Cs' exemplary care of B.J.S. is not the issue. [55] One must respect the legitimate concern by the Agency for B.J.S.'s safety. Clearly, the information which came to light called for a thorough investigation. It appears, however, from the information filed in support of the application, that there are material facts in dispute which are relevant to the Cs' suitability as ongoing caretakers for B.J.S. and which require further consideration. [56] The Agency has prepared two reports in response to the information which has come to its attention. Those reports are appended to the affidavit of Holly Demone of the Children's Aid Society of Shelburne. The reports contain some factual assertions which are at odds with the evidence provided in the Cs' affidavit. In other respects, the reports are less than thorough. For example, according to the uncontradicted affidavit evidence of I.C. and H.R.C., the Agency overstates the number of male relatives who have been convicted or are suspected to have sexually abused children. Additionally, the author concludes, without elaboration, “The chances that there are no more family members who are either perpetrators, or victims are low, and this would therefore pose a risk to any child placed with them”. The author further states that the Cs have not recognized the risk that L.C. poses. This is not consistent with their evidence. The author speculates that “the family would also not likely engage in counseling on their own behalf with regards to the sexual abuse that is prevalent in their family”. There is conflicting information, as well, about whether the Cs disclosed information about the alleged sexual assault to the worker who prepared the report supporting the adoption of their son. If this was disclosed, the Agency was in possession of the information and did not at that time find it a bar to the adoption. Finally, the Agency appears to have given only superficial consideration to the effect upon B.J.S. of removing her from the Cs. That issue is addressed in a single paragraph: [B.J.S.] has been with [H.R.C.] and [I.C.] almost since birth, and has come to know them as her parents. She has successfully attached to them, and they have, in turn, bonded with her. The question then remains, will [B.J.S.] be able to attach to new parents, to a new family? Research shows that children who have been able to attach to significant individuals, have the ability to attach to new individuals in the future. We know that [B.J.S.] is attached to the [Cs], and therefore, she has the ability to attach to a new family in the future. [57] There was no consideration of the particular emotional difficulties B.J.S. has which may impair her ability to bond. Nor was there mention of her specific emotional and physical challenges which may impede her ability to adapt to change. Remarkably, there was no psychological or other report that assessed B.J.S.'s unique psychological and emotional needs and the effect upon her development of being taken from her psychological family. This factor was identified by the Court in C.M., supra, as being of the utmost importance. [58] Without doubt, B.J.S.'s physical safety cannot be put in jeopardy. If B.J.S. is not safe in the Cs' home, she cannot remain in their care. Whether that is in fact the case requires a more detailed investigation. The Agency has lost confidence in the family. This matter will best receive a proper vetting in a termination proceeding. [59] While the Cs are and have been referred to throughout as foster parents, in my view, by the time of this application, they had reached a position of substantially more significance. It must not be lost sight of that B.J.S. was placed with them, almost from the outset, for probable adoption, subject only to the Agency finding a suitable biracial home. There was never any prospect that the biological parents would have care of B.J.S. As time went by the Cs were approved as adoptive parents. For unexplained reasons, the adoption was never processed. They were not temporary foster parents who bonded with B.J.S. at their peril, knowing that they would certainly someday be separated from her. Their role as surrogate parents was encouraged and promoted by the Agency. The Cs are not simply foster parents but prospective adoptive parents who have had care of B.J.S. since birth. [60] I am aware that there will be significant difficulties to address on a termination hearing. Unless the Agency reverses its position on the Cs as potential adoptive parents, it may not be open to them to adopt B.J.S. The question, then, is what relief could be granted to them if the court is persuaded that it is in B.J.S.'s best interests to remain in their care? The only option would be a custody order. Presumably, it will be necessary for them to apply for leave to commence an application for custody pursuant to the Maintenance and Custody Act, R.S.N.S. 1989, c. 160 (formerly the Family Maintenance Act) and, under the Family Court Rules, seek joinder of that action with the termination proceeding under the Family Court Rules. [61] This case is further complicated by the fact that B.J.S. has recently been removed from the Cs' care and placed in a new home with long term prospects. While a court might have ordered that B.J.S. remain in the Cs' care had the termination application been made before her removal, it may no longer be in her best interests to again be uprooted. It is hoped that there can be a free exchange of information between the Agency and the Cs about B.J.S.'s current circumstances to enable the Cs to make an informed decision as to whether it is in B.J.S.'s best interests that they pursue termination of the permanent care order. [62] It is unnecessary for me to address in detail the second ground of appeal, which is the denial of the biological parents’ application for leave to apply to terminate. I am not persuaded that the judge applied the wrong test, in particular that he required the parents to demonstrate a prima facie case. C.A. and D.S. had never had the care of B.J.S. There was no possibility that they could succeed in their application to terminate the permanent care order. Disposition: [63] The power of this Court on appeal is set out in s. 49 of the CFSA: 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. [64] I would order that the Cs be granted party status pursuant to s. 36(1)(f) of the CFSA and, pursuant to s. 48(6), that they be granted leave to apply for termination of the permanent care order. [65] There will be no order for costs. Bateman, J.A. Concurred in: Hallett, J.A. Oland, J.A.