Children's Aid Society of Cape Breton-Victoria v. L.D.

Children's Aid Society of Cape Breton-Victoria v. L.D. Court Court of Appeal Date 2006-03-14 Citation 2006 NSCA 32 Docket CA 263073 Judge/Registrar/Adjudicator Fichaud, Joel E. (Honourable Justice) (CA) Document Type Decision Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Children’s Aid Society of Cape Breton-Victoria v. L.D., 2006 NSCA 32 Date: 20060314 Docket: CA 263073 Registry: Halifax Between: The Children’s Aid Society of Cape Breton-Victoria Appellant v. LD, JE and CS Respondent Restriction on publication: Pursuant to s. 94(1) Children and Family Services Act. Judge(s): The Honourable Justice Fichaud, in Chambers Appeal Heard: Thursday, March 9, 2006, in Halifax, Nova Scotia Held: Application for stay is dismissed without costs. Counsel: Christopher Conohan, for the appellant, The Children’s Aid Society of Cape Breton-Victoria David Iannetti, for the respondent, CS Respondents, LD and JE not appearing 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. Reasons for judgment: [1] The trial judge ordered that a three year old female child be in the permanent care and custody of the appellant Children’s Aid Society of Cape Breton-Victoria (“Agency”). The trial judge ordered that the child’s father have access for six months. The Agency appealed against the access, and applies for a stay of execution of the access until the appeal decision. Background [2] SD was born on January (editor’s note- date removed to protect identity), 2003. Her mother is the respondent LD, and her father is the respondent CS. LD and CS separated before SD’s birth. LD then began a relationship with the respondent JE. That relationship terminated in early 2005. [3] In April 2004, the Agency apprehended SD because of unhealthy and unsafe living conditions in LD’s home. The Agency applied to the Supreme Court (Family Division) for permanent care and custody with no access. Justice Wilson conducted a three day trial and rendered an oral decision on October 13, 2005, followed by a written decision and order on January 31, 2006. [4] The trial judge’s decision noted that the child’s living conditions with LD and her partner JE were inappropriate. Justice Wilson decided that it would not be in the child’s best interest to return to the care of LD or JE. Neither LD nor JE has appealed that ruling. So I will not comment further on their parental capacities. [5] CS, the child’s biological father, lives with his mother in North Sydney. He has received social assistance for the last four years. He is looking for employment. His two and one-half year relationship with LD ended before SD’s birth. For two years afterward CS did not try to contact his daughter. [6] In February 2005 CS contacted the Agency. He said he was SD’s father and requested access. He applied to be added to the protection proceeding. LD opposed his application and denied that he was the biological father. A paternity test confirmed that CS was SD’s father. LD still opposed his application to join the proceeding. Finally, on September 15, 2005, the court granted CS’s application for standing to participate in the disposition hearing. [7] CS wants a relationship with his daughter. Justice Wilson’s decision related CS’s position. [41] He acknowledged that he should have sought a relationship with his child sooner. He was nervous and confused. He knew the Agency apprehended S. and that she had been returned to the mother’s care. He hoped that the mother would get her act together and she would be able to provide care for the child. It was only when S. was taken into care for the second time that he decided that he should contact the Agency and inform them that he was the father and he wanted access. Now he wants to care for S. because it is important for his child to know family. He admits that S. does not know him as her father. His plan is to reside with S. in his mother’s residence and eventually his own apartment. His mother and the maternal grandmother would assist him in providing care for the child. He acted promptly to get a lawyer when the Agency told him they could not help him with access. He feels that he is a capable father because he helped care for the mother’s older child, D. He acknowledged that he used marijuana but not when the child was present. He said the mother is an angry person and they often had verbal conflicts during their relationship. He was not aware of any safety issues when they lived together but the mother ignored the child, D.’s needs at times. [8] Because of CS’s late entry into the proceeding, the Agency did not have time to assess his parental abilities. Justice Wilson stated: [60] The biological father does not have a relationship with the child and the child does not know him as her father. The Court is uncertain about the father’s ability to care for the child on a long term basis. . . . [63] The Court is uncertain whether it is possible to place the child with him pursuant to Section 42(3) of the Act. [64] The maximum time limits pursuant to the statute have expired and a Court must either place the child in the permanent care of the Agency or with the biological father. [65] I have considered the plan of the Agency and the plan of the biological father. I find the plan of the Agency is in the child’s best interests. In determining the child’s best interests I have considered that no bond exists between the child and the biological father and further disruption in the continuity of the child’s care would have a negative impact on the child. The father’s ability to care for the child and to provide the child with a positive relationship in a secure home environment which is important for the child’s future development is unknown. The biological father’s lack of commitment to the child prior to February 2005 raises questions about his long-term commitment to care for the child. [9] To address the uncertainty respecting the prospects of placement with CS, the trial judge decided that CS should have six months access with his daughter, followed by a parental assessment. Justice Wilson stated: [68] There are special circumstances which justify making an Order for access with respect to the biological father. [69] The child is not yet three years old. It may be possible to place the child with her biological father and his family. The biological father’s circumstances and parenting capacity could have been assessed prior to the final hearing in October but he was unable to participate until September 2005. The Agency knew he wanted to present a plan of care for the child in February and later agreed to his participation but did not take any steps to assess his circumstances until he was formally added as a party when it was too late. While the father was tardy in seeking a relationship with the child there was still plenty of time between February and September for his circumstances and capacity to be assessed. [70] The Court is satisfied that an access Order for a limited period of six months (to expire on April 13, 2006) is appropriate in order to have the father’s parenting capacity and circumstances assessed. The Agency is to arrange for a parental capacity assessment and the father is to make himself available for an assessment. Access between the child and the father will be in the discretion of the Agency and will allow the child and the father to be viewed by the Assessor. [71] The access Order will expire automatically on April 13, 2006 unless there is an application to vary the Order. [72] The Court is satisfied that this limited access Order will not impair the child’s future placement for a permanent placement in a family setting given the child’s young age. [10] Justice Wilson’s written decision dated January 31, 2006 said (¶ 71) that the six months access to CS “will expire automatically on April 13, 2006 unless there is an application to vary the Order.” Clearly Justice Wilson contemplated that the six months access would commence October 13, 2005, the date of his oral decision. [11] For this stay application the Agency filed an affidavit of Mr. Dave Brown, a director with the Agency. Mr. Brown was cross examined on his affidavit. [12] From Mr. Brown’s evidence it is clear that, from the outset, the Agency disagreed with the access provision in Justice Wilson’s decision . In December 2005, CS’s mother spoke to Mr. Brown and inquired whether the Agency had any plan to permit access to CS. Mr. Brown responded that the Agency had no plan for access, and that the Agency would appeal. [13] The Agency objects to access because CS has no bond with his daughter and showed no commitment to his daughter during the first two years of her life. The Agency believes that the child would be better placed with a family having the initiative to apply for adoption. The CAS says that, if its appeal is dismissed, they would allow CS to have the six months access followed by a parental assessment, beginning after the decision of the Court of Appeal. [14] As a result, there has been no access, notwithstanding Justice Wilson’s decision. The terminal date for the six months access, April 13, 2006, is one month away. [15] The appeal is scheduled for hearing in this court on June 16, 2006. Legal Principles [16] Section 49(3) of the CFSA and Rule 62.10 govern stays of execution. [17] In Fulton Insurance Agencies Ltd. v. Purdy (1991), 100 N.S.R. (2d) 341 (C.A.) at ¶ 28, Justice Hallett stated the basic test for stays of execution under Rule 62.10. A stay may be granted if the applicant shows either (1) an arguable issue for an appeal, and that there would be irreparable harm from a denial of the stay, and that the balance of convenience favours the applicant or (2) there are exceptional circumstances. [18] These principles are adjusted in child protection cases. Section 2(2) of the CFSA states: (2) In all proceedings and matters pursuant to this Act, the paramount consideration is the best interests of the child. The Agency’s stay application is a “proceeding” under the CFSA. So the best interests of SD govern. [19] In D.M.F. v. Minister of Community Services, 2004 NSCA 113, at ¶ 12-15 and 20, I reviewed the authorities and described how the normal Fulton principles are altered for a stay application in a child protection proceeding: [12] In child protection cases special principles infuse the Fulton tests. These principles have been summarized by Justice Cromwell in Minister of Community Services v. B.F., 2003 NSCA 125 at paras. 13, 19, and 22, by Justice Saunders in Family and Children’s Services of Annapolis Co. v. J.D., 2004 NSCA 15 at paras. 10 - 14, Justice Bateman in D.D. v. Nova Scotia (Minister of Community Services), 2003 NSCA 146 at paras. 9 - 1 and Justice Flinn in C.A.S. of Halifax v. B.M.J. (2000), 189 N.S.R. (2d) 192 at paras. 29 - 31. I will summarize these principles without reproducing the cited passages. [13] Although the Fulton test provides the format for analysis, under s. 2(2) of the Act in a child protection case the overriding factor is always the best interests of the child. This reformulates the “irreparable harm” and “balance of convenience” branches of the Fulton test. The standard civil tests of irreparable harm to the applicant and balance of convenience between applicant and respondent are sterile in a child custody case. It is not the irreparable harm to the applicant (whether parent or Agency) or the balance of convenience between the litigants (parent and Agency) which governs. Rather the focus is on the child. It is highly unlikely that harm to the child would be compensable in money. So the “irreparable” concept recedes. [14] In B.F., at para. 19, Justice Cromwell summarized the approach: The applicants must show a risk of harm produced by the combination of the continuing in force of the order under appeal and the delay until the result of the proposed appeal is known. The risk is that if the stay is withheld, their rights and the interests of the children will be so impaired by the time of final judgment that it will be too late to afford complete relief. On the other hand, this risk must be balanced with the risk of harm to the children if the stay is granted. The risk to be considered is that of harm to the children that could result from staying an order that may be affirmed on further review to be both lawful and in their best interests. [15] This perspective also affects the deference which the judge considering a stay application must give to the trial judge’s findings. The determination of the child’s best interests is a delicate fact-driven balance at the core of the rationale for appellate deference. For these reasons, in B.M.J. at para. 31, Justice Flinn said that the Court of Appeal “shows considerable deference to the decision of a trial judge in custody matters” and will only interfere if the trial judge has “gone wrong in principle, or has overlooked material evidence.” Justice Cromwell noted in B.F. at para. 13 that, because of the need for stability and finality in child custody, generally there must be “circumstances of a ‘special and persuasive nature’, usually connected to the risk of harm to the children, in order to persuade the court to grant a stay.” . . . [20] In a child protection case, consideration of irreparable harm and balance of convenience distills into an analysis of whether denial of the stay would harm the child and, if so, whether the stay’s issuance or denial would better serve, or cause less harm to, the child’s interest. The applicants have adduced no evidence to dissuade me from deferring to the trial judge’s findings. The children’s positive reaction to foster care cited in Ms. Boyce’s note of August 24, 2004 supports Justice Campbell’s view that separation of the children from the parents would be ameliorative. To the same effect see Family and Children’s Services of Cumberland County v. D.Mc., 2006 NSCA 28, at ¶ 10-14. Application of Legal Principles [20] The issues here are whether the denial of the stay would harm SD and, if so, whether the stay’s issuance or denial would better serve, or cause less harm to SD’s interests: See D.M.F. ¶ 20. [21] The Agency says that, if CS has access to SD, the child will bond. Then, if SD is placed permanently with another family, she will suffer emotional harm from the severance of that bond. [22] In my view the Agency has not established that six months contact with CS would harm SD or that the stay’s issuance would better serve SD’s interests than would the stay’s denial. My reasons are these. [23] Mr. Brown testified on cross examination that the Agency took a “show me” attitude to CS. Because CS had exhibited no initiative during his daughter’s first two years, the Agency wanted to see evidence of CS’s commitment. Justice Wilson’s access direction institutes this “show me” approach. That was the reason for the six months access to be followed by a parental assessment. [24] Justice Wilson considered that the child’s best interest merited an opportunity that she connect with her father, followed by a parental assessment, so the prospect of a continuing father/daughter relationship could be considered. Sometimes the assessment of a child’s best interests is not an ineluctable deduction. It is a delicate balance. As noted in D.M.F., ¶ 15 and the case law there cited, an appeal judge considering a stay shows considerable deference to the trial judge’s assessment of that fact driven balance. The appeal judge will interfere if the trial judge has “gone wrong in principle, or has overlooked material evidence” or if there are circumstances of a “special and persuasive nature connected to the risk of harm” to the child. The Agency has provided no evidence to satisfy me that Justice Wilson’s decision has offended these standards. [25] In June the Court of Appeal will consider whether the six months access is in SD’s best interest. Had the access occurred as Justice Wilson contemplated, from October 2005 until April 2006, likely there would be a parental assessment of CS available for submission as additional evidence to the Court of Appeal. This might have clarified the “uncertainty” cited by Justice Wilson. Then the Court of Appeal would be in a better informed position to assess SD’s best interests. The Agency prefers to delay CS’s access until and unless its appeal is dismissed. So the Court of Appeal would not have the benefit of this evidence to better assess the child’s interests. [26] Justice Wilson’s decision directed that CS’s access occur between October 13, 2005 and April 13, 2006, followed by a parental assessment of CS and permanency planning. According to the Agency, if its appeal is dismissed, CS’s six months access would begin after the appeal decision following the June hearing by this court. Whatever the result of the appeal, the Agency’s approach would extend SD’s bonding either to her foster family or to CS after April 2006. These additional months may be a formative stage of life for an infant. The CFSA’s preamble states: Children have a sense of time that is different from that of adults and service is provided to this Act and proceedings taken pursuant to it must respect the child’s sense of time. The Agency’s approach would extend pre-permanency bonding beyond the date contemplated by Justice Wilson’s decision. There is some disingenuity in the Agency’s submission that pre-permanency bonding justifies a stay. Conclusion [27] The Agency has not shown that denial of the stay would harm SD, or that the stay would better serve SD’s interests than would compliance with the trial judge’s directed access. I dismiss the application for a stay. There will be no costs. Fichaud, J.A.