Beson v. Director of Child Welfare (NFLD.), [1982] 2 SCR 716

SUPREME COURT OF CANADA

Beson v. Director of Child Welfare (NFLD.), [1982] 2 S.C.R. 716

Date: 1982-11-23

Donald Beson & Patricia Beson Appellants;

and

The Director of Child Welfare for the Province of Newfoundland Respondent;

and

Norma Kathleen Jones and Ernest Joseph Jones Interveners;

and

Christopher, an infant by his counsel David C. Day Mis en cause.

File No.: 17154.

1982: October 21; 1982: November 23.

Present: Ritchie, Dickson, Estey, McIntyre and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR NEWFOUNDLAND

Adoption — Respondent removing child from prospective adoptive home within six-month probationary period — Adoption Appeal Board refusing to hear appeal of adoptive parents — Whether habeas corpus available — Whether The Adoption of Children Act, 1972 is a complete code re adoption and therefore limits parens patriae jurisdiction of superior courts — Judicial review of Director's order — Failure to treat fairly — The Adoption of Children Act, 1972, 1972 (Nfld.), c. 36, ss. 11, 11A, 11B — The Child Welfare Act, 1972. 1972 (Nfld.), c. 37, s. 47.

This case arose as a result of the action of the Director of Child Welfare for Newfoundland in removing a child from an adoptive home seven days before the expiration of the probationary residence period of six months required for an adoption. He also refused to refer the matter to the Adoption Appeal Board. The appellants commenced habeas corpus proceedings in the Supreme Court of Newfoundland. Noel J. held that the Director had a discretion under The Adoption of Children Act, 1972 and that he should not substitute his views for those of the Director. An appeal to the Court of Appeal was dismissed on the ground that The Adoption of Children Act, 1972 is a complete code and that habeas corpus does not lie. The Court also held that the parens patriae jurisdiction of the Court could be resorted to only where the legislation afforded no remedy. In

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this case a remedy did exist by way of mandamus to compel the Adoption Appeal Board to hear the appeal.

Held: The appeal is allowed and an order is made under s. 12 of The Adoption of Children Act, 1972, for the adoption of Christopher by the appellants.

The Court of Appeal was in error in holding that mandamus would lie against the Board since no appeal lay under s. 11B of The Adoption of Children Act, 1972 in a case where the child was removed from the adoptive home during the probationary period. Section 11B must be read in light of Sections 11 and 11A. There is accordingly a gap in the legislation which the Newfoundland courts could have filled by an exercise of the parens patriae jurisdiction. Further the Director's failure to treat the appellants fairly provided a basis for judicial review and the courts were in error in treating the application as one in which they were being asked to substitute their discretion for that of the Director.

A. v. Liverpool City Council and another, [1981] 2 All E.R. 385; Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311 referred to.

APPEAL from a judgment of the Supreme Court of Newfoundland, Appeal Division, delivered on March 22, 1982, dismissing an appeal from a judgment of the Supreme Court of Newfoundland, Trial Division. Appeal dismissed.

Jean V. Dawe, for the appellants.

John C. McCarthy, for the respondent.

 H. Stephen Roy, for the interveners.

David C. Day, Q.C., for the mis en cause.

The judgment of the Court was delivered by

WILSON J.—The issue on this appeal is not one which normally confronts us. It arises out of a rather sad saga which discloses how one small boy can be caught in a legislative and administrative net and have to come to the highest court in the land to extricate himself. The chronological history of the matter is a procedural nightmare.

The child Christopher was born on May 21, 1977 and immediately following his birth became

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a ward of the Director of Child Welfare in Newfoundland. In January 1979 the appellants, Mr. and Mrs. Beson, applied to adopt a child and in July 1980 Christopher was placed by the Director in their custody with a view to adoption. A social worker was assigned to monitor the adoption in the normal manner and his reports, made to the Director on August 21, 1980 and October 23, 1980, were very favourable. However, on January 8, 1981 Mrs. Beson was advised that allegations of child abuse by her husband had come to the attention of the Director. Mrs. Beson, naturally greatly upset at this, denied any such abuse as did also her husband. Mr. Beson was asked to return the child which he did under protest on January 9, 1981. Neither Mr. nor Mrs. Beson were able to elicit from the Director or his staff the source of the allegations. Nor were they given any opportunity to respond. In seven days following the removal of Christopher from the Beson home the six-month period of residence required for an adoption would have been completed. Christopher was returned to the foster home in which he had resided prior to his placement with the Besons.

Immediately after the return of Christopher the Besons advised the Director that they wished to appeal his decision to the Adoption Appeal Board. He told them that in his opinion there was no right of appeal in a case where a child was removed from a prospective adoptive home prior to the expiry of the six-month period. The Besons filed an appeal nonetheless but the Appeal Board apparently shared the view of the Director and refused to entertain the appeal. The Besons thereupon commenced habeas corpus proceedings in the Supreme Court of Newfoundland to try to get the child back. At the hearing of this application on May 28, 1981 the allegations of abuse against Mr. Beson were fully canvassed and Noel J. held that they were unfounded. However, he dismissed the habeas corpus application on the basis that the Director had a discretion under The Adoption of Children Act, 1972, 1972 (Nfld.), c. 36, as amended, and that he should not substitute his views for the views of the Director. He did, however, state that: "it would be in this child's interest for the Director to sit down with the Besons and come to an agreement, subject to supervision, to give this

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boy a chance to have this fine home." The Director indicated to the Besons that he would not follow this advice and they thereupon appealed the decision of Noel J. to the Newfoundland Court of Appeal.

The Court of Appeal dismissed the appeal on the ground that The Adoption of Children Act, 1972 is a complete code with respect to adoption and that habeas corpus does not lie. It held, moreover, that the parens patriae jurisdiction of the Court, which had been put forward in argument by counsel for the Besons, could be resorted to only where the legislation afforded no remedy. In the Court's view the legislation in this case did afford a remedy. The Director's decision was appealable to the Adoption Appeal Board and a mandamus would have lain to compel the Board to hear the appeal. Although the Besons had been treated unfairly by the Director and the manner in which he made his decision was "to say the least most unfortunate", there was nothing the Court could do.

The Besons applied for leave to appeal to this Court and, during the hearing of the application on June 22, 1982, the Court asked counsel for the Director where and with whom Christopher was currently residing. It was then disclosed that, unknown to the Besons, and indeed to the Newfoundland Court of Appeal at the time it heard the Besons' appeal on the habeas corpus application, Christopher had been in a new adoptive home since January, 1982. This information was subsequently corrected by counsel for the Director and the Court advised that Christopher had been placed with Mr. and Mrs. Jones for adoption in November, 1981.

The Court gave leave to appeal, granted the subsequent application of Mr. and Mrs. Jones to intervene in the appeal and appointed separate counsel to represent the child Christopher. All counsel agreed that there should be the fullest evidence before the Court on the hearing of the appeal so that the matter could be brought to a finality and that it would be appropriate to have it

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taken on commission in Newfoundland. It was agreed also that it was in the child's best interests that the appeal be heard as soon as possible. An order to expedite was accordingly made.

The appellants alleged a number of errors on the part of the Newfoundland Court of Appeal. Their first submission was that the "best interest of the child" doctrine, which has been statutorily enacted in The Child Welfare Act, 1972, 1972 (Nfld.), c. 37, s. 47, takes precedence over the provisions of The Adoption of Children Act, 1972. The Court of Appeal should not therefore have considered itself helpless to aid Christopher if it was persuaded that his best interests lay with the appellants. In particular, it was submitted that the parens patriae jurisdiction of the Court is the tool by which this overriding power of the Court may be exercised. It is, counsel argued, a "complete" jurisdiction and not one dependent, as the Court of Appeal found, upon the presence of "gaps" in the applicable legislation. Counsel, in making this submission, was responding to the following passage from the reasons of Gushue J.A.:

The Legislature has enacted a code by which the adoption of children is to be governed. In addition to prescribing the procedure to be followed, the Act also protects the rights of all parties involved. That in no way interferes with or supplants the inherent and ancient 'parens patriae' jurisdiction of the Courts in relation to the welfare of children. That jurisdiction is at any rate of an equitable nature and should be exercised only where statutes and other laws do not provide a proper answer. To put it another way, it is an overriding power in the courts to fill in the gaps in the law in the best interests of a child.

In the alternative, counsel argued, if there has to be a gap in the legislation in order to permit the court to exercise its parens patriae jurisdiction, there is a gap if the Director and the Adoption Appeal Board are correct that no appeal lies to the Board from a decision of the Director made prior to the expiry of the six-month period. Counsel supported this interpretation of the legislation as against that of the Court of Appeal. The relevant sections read as follows:

11. An adoption order shall not be made unless the Director certifies in writing

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(a) that the child has lived with the applicant for at least six months immediately prior to the date of the application and that, during that period, the conduct of the applicant and the conditions under which the child has lived have been such as to justify the making of the order; or

(b) that the applicant is, to the knowledge of the Director, a fit and proper person to have the care and custody of the child and that for reasons set out in the certificate the period of residence may be dispensed with.

11A. Where the Director decides not to give

(a) the approval referred to in subsection (3) of Section 4;

(b) the consent referred to in subsection (1) of Section 8; or

(c) the certificate referred to in Section 11, he shall, as soon as reasonably may be after he has reached such decision, communicate, in writing, his decision to the person or applicant concerned, and such communication shall have attached thereto a copy of Section 11B.

11B....

(2) Any person or applicant who feels aggrieved by a decision of the Director respecting any matter referred to in Section 11A may, subject to the regulations, including, without limiting the generality of the foregoing, any provisions of the regulations respecting the time limit for appeal and the procedure on appeal, appeal from such decision to the Appeal Board, and, subject to the regulations, the Appeal Board shall notify such person or applicant of the time the appeal shall be heard by it and shall, upon the conclusion of the hearing, confirm or set aside the decision of the Director and may give such directions not inconsistent with this Act or the regulations respecting the granting or refusal of the approval, consent or certificate concerned as the Appeal Board considers proper, and, subject to Section 11C, any finding or decision of the Appeal Board is final.

The view that no appeal lay to the Board in this case was based on the fact that the certificate contemplated in s. 11 could not issue until after the expiry of the six-month period because in it the Director had to either certify as to the completion of the residence period or dispense with it. Accordingly, while as a factual matter the Director might "decide" prior to the expiry of the six-month period "not to give the certificate referred to in s. 11" the juridical act which would give rise to a

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right of appeal under s. 11A could only take place after the expiry of the period.

It seems to me that this interpretation of s. 11A is mandated by the contents of the certificate under s. 11 and that the Appeal Board was correct that no appeal lay. The Newfoundland Court of Appeal was accordingly in error when it said:

The proper course of procedure for the appellants was to pursue their remedy under the appeal provisions of the Act. I realize that the Appeal Board declined jurisdiction in the matter because the adoption was terminated before the full six-month probationary term had expired, but in my view the Board had no right to do so. I have no doubt whatever that the appellants should have been given a hearing to at least argue the question of jurisdiction, and that Mandamus would lie against the Board's refusal to hear the appeal.

The question that arises is whether, as counsel for the appellants submits, this constitutes a gap in the legislation which would entitle the Court to assert its parens patriae jurisdiction in what it considered to be Christopher's best interests.

Counsel relies on the decision of the House of Lords in A. v. Liverpool City Council and another, [1981] 2 All E.R. 385, referred to in the judgment of the Newfoundland Court of Appeal. In that case the Liverpool City Council which had care and custody of an infant had placed him in a foster home with weekly access rights in favour of his mother. When the Council decided to reduce her access rights the mother commenced wardship proceedings to have her son made a ward of the court so that she could challenge Council's decision. The trial judge, without going into the merits, discharged the wardship proceedings on the basis that the court could not exercise its wardship jurisdiction to review the discretionary power of Council. The mother appealed directly to the House of Lords. Their Lordships held that, because Parliament had entrusted the power and duty to make decisions as to the welfare of children to Council without reserving any right of review on the merits to the court, the courts had no jurisdiction to review the exercise of Council's discretionary power except by way of judicial review and there was no basis for judicial review in the instant case.

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It is of interest to note that the main submission made by the mother in Liverpool was that, the welfare of the child being the paramount consideration, the High Court had an overriding power and duty to apply this fundamental principle and that this jurisdiction could not be ousted by the legislature. Lord Wilberforce rejected the concept that the court could substitute its discretion for the discretion reposed in Council by the legislature. He stated at p. 388:

To the argument, therefore, that the High Court has a special and overriding jurisdiction because only there can the welfare of the child be assigned its proper place, the answer is clear: that there is no other principle on which any court or administrative body can (with the exception of public protection cases, and even there considerations must be mixed) act than that which is best for the child's welfare. It must, however, be borne in mind that, whereas the duties and powers of local authorities and of juvenile courts are defined and limited by statute, there is no similar limitation on those of the High Court.

This leads to the next and decisive question: given that both the High Court and the local authority have responsibilities for the welfare of the child, what is the relationship, or dividing line, between them? I think that there is no doubt that the appellant, the child's mother, is arguing for a general reviewing power in the court over the local authority's discretionary decision; she is, in reality, asking the court to review the respondents' decision as to access and to substitute its own opinion on that matter. Access itself is undoubtedly a matter within the discretionary power of the local authority.

In my opinion the court has no such reviewing power. Parliament has by statute entrusted to the local authority the power and duty to make decisions as to the welfare of children without any reservation of reviewing power to the court.

The learned Law Lord then went on to deal with the relief that was available from the court in exercise of its parens patriae jurisdiction and gave as an example judicial review should the facts of 'the case warrant it. In the Liverpool case they did not. He stressed that the inherent jurisdiction is not taken away. It simply cannot be resorted to if the action the court is being asked to take is within

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the discretion of the local authority. He continued at pp. 388-89:

But in some instances there may be an area of concern to which the powers of the local authority, limited as they are by statute, do not extend. Sometimes the local authority itself may invite the supplementary assistance of the court. Then the wardship may be continued with a view to action by the court. The court's general inherent power is always available to fill gaps or to supplement the powers of the local authority; what it will not do (except by way of judicial review where appropriate) is to supervise the exercise of discretion within the field committed by statute to the local authority. [Emphasis added.]

It would seem then that in England the ward-ship jurisdiction of the court (parens patriae) has not been ousted by the existence of legislation entrusting the care and custody of children to local authorities. It is, however, confined to "gaps" in the legislation and to judicial review. Is there room for the Court's parens patriae jurisdiction in this case?

The legislative gap approach

If the Besons had indeed no right of appeal under the statute from the Director's removal of Christopher from their home, then I believe there is a gap in the legislative scheme which the Newfoundland courts could have filled by an exercise of their parens patriae jurisdiction. Noel J., in other words, could have done more than recommend that the Director give Christopher the chance of the good home available with the Besons. He could have so ordered. It was not a matter of substituting his views for those of the Director. It was a matter of exercising his parens patriae jurisdiction in light of a deficiency in the statute. If it were not in Christopher's best interests that he be removed from the appellants' home, then in the absence of any statutory right of appeal through which his interests might be protected, Noel J. had an obligation to intervene.

It should be recalled that when the Besons applied to adopt Christopher he was a physically and emotionally deprived child. They took him on that basis and he made remarkable progress in

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their care. He developed from a shy reserved child who was slow in speech development and not toilet-trained at over three years old into a bright, happy and totally normal youngster. At the time the Director removed him from the Besons' care and returned him to the foster home no other prospective adoptive parents were in the picture. The Director simply took a child who had been placed in a prospective adoptive home in which he was thriving, and in respect of which favourable reports were issuing from his own case worker, out of that home one week prior to the expiry of the six-month residence period on the basis of completely unfounded rumours of child abuse. It is clear from the reasons of the Newfoundland Court of Appeal that they dismissed the appeal because in their view the Besons had a right of appeal to the Appeal Board under the statute which they failed to pursue when mandamus proceedings would have been open to them. It is clear also that the Court of Appeal agreed with Noel J. that he could do no more than make a recommendation to the Director. 1 think that on both these issues the Court of Appeal was in error.

The judicial review approach

There is no doubt that judicial review of the Director's action would have been available to the appellants in the absence of any right of appeal in the statute. Moreover, an application for judicial review might well have been successful on the ground of the Director's failure to treat the Besons fairly: See Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311. The Newfoundland Court of Appeal found as a fact that they had been treated unfairly. The allegations came from a completely unreliable source and no effort was made by the Director to substantiate them. However, instead of proceeding by way of judicial review the appellants instituted habeas corpus proceedings and the Newfoundland courts concluded, in my view wrongly, that they were without jurisdiction to deal with the matter. I have concluded that it was open to them to proceed with judicial review in exercise of their parens patriae jurisdiction. Unlike the Liverpool case there was a basis for judicial

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review here and the courts were in error in treating the application as one in which they were being asked to substitute their discretion for that of the Director. They were being asked to control the improper exercise of his discretion.

The available relief

What recourse then is open to this Court to settle the rights not only of the Besons but also of Mr. and Mrs. Jones, the interveners, who through no fault of their own are now caught up in what must be a most traumatic and painful experience? Mr. and Mrs. Jones had apparently no knowledge of the claim of the Besons to the child who had been so enthusiastically welcomed into their family until the bombshell was dropped on them by the Registrar of this Court.

We have now had the benefit of very complete evidence taken on commission in Newfoundland before Mr. Justice Goodridge. This includes the evidence of a pediatrician, two psychologists, a child psychiatrist, two social workers, the Director of Child Welfare and Mr. and Mrs. Beson. We have also had the benefit of thorough argument from counsel for the appellants and for the interveners, from counsel for the Director and from Mr. Day, counsel appointed by the Court to represent Christopher. Having been advised by Dr. Boddie, the child psychiatrist retained by him, that Christopher was neither capable of instructing counsel nor "of expressing his wishes as to his future custodians", Mr. Day assessed his role as being to advance his client's best interests as he saw them to the Court. In order to satisfy himself as to where Christopher's best interests lay Mr. Day conducted a very thorough investigation of Christopher's social, medical and legal antecedents and of his present circumstances. In the course of this investigation he reviewed the Director's files on Christopher and interviewed all the people who had had Christopher under care including the appellants and the interveners, former foster parents, child welfare workers, health care persons and his teacher. He also spent time with Christopher at his present residence.

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Mr. Day's submissions to the Court, based on his investigations and the assistance he received from the professionals he retained on Christopher's behalf, are that Christopher's best interests were being served when he was a member of the appellants' family and would likely have continued to be served by his being left there. However, given that he was removed from their care by the Director, the Court must decide whether his best interests would now be served by leaving him where he is, i.e. with the interveners, or by returning him to the appellants. This in turn would depend, counsel submitted, on whether the quality of care he would receive from the appellants would outweigh any prejudice to him arising from yet another move.

As to the quality of care available to Christopher in the appellants' home, Mr. Day stated that "the quality of care which can be afforded by the appellants is superior to a significant degree to that which can be afforded by the interveners". He hastened to point out that this was not to say that Christopher was not currently being materially and emotionally well cared for to the best of their ability by the interveners. He simply needs a great deal of care and attention and requires, according to counsel, "the time, patience, vigilance and sensitivity of supportive and stimulating custodians". The appellants are more able to spend time with Christopher and have been and continue to be motivated to do so. They clearly love him very much as witness their pursuit of this matter through all the various levels of the court. They want him back as their son despite the fact that they now have a baby girl of their own.

Mrs. Beson is at home all day and Mr. Beson is a businessman with considerable latitude in his working hours. Their eider son, Larry, is devoted to Christopher. Mrs. Jones, on the other hand, has a job and both she and her husband function on fairly stringent work schedules. Christopher has to be looked after by a neighbour until they return from work. They are simply not able to give the child the time and attention he needs. They have two children, a boy of nine and a girl of seven. In the context of the longer term interests of Christopher, the appellants are more able to handle financial

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family contingencies and to save for their childrens' post-secondary education and training which is a high priority with them. While financial security is not by any means a determining factor, it is a relevant one. It is not surprising, counsel submitted, that on the basis of the evidence Mr. Justice Noel was concerned that Christopher have the opportunity of this fine home.

Nevertheless, Mr. Day submitted, the Court must be concerned about the effect of another move on a boy who has lived up to this time what he described as "a nomadic existence". The advice he had received from the child psychiatrist was encouraging in this respect. The child was extremely resilient (doubtless as a result of his background to date) and Dr. Boddie was of the opinion that he would adjust to the return to his former home since "proper care and love can prevent permanent impairment due to separation". The pediatrician and psychologists who assessed Christopher were less sanguine on this count.

Having reviewed all of the evidence and considered the submissions of counsel, and being particularly impressed by the totally impartial and objective submissions of Christopher's counsel, I am of the view that it is in Christopher's best interests that he now be returned to the appellants. In so saying 1 am certainly not unmindful of the upset this will unquestionably involve for the child and that the courts have cautioned against the disturbance of the status quo. I am also aware that it will cause anguish for the interveners. Indeed, hurt all round is the tragic feature of this sorry situation.

What kind of relief then is it open to this Court to grant? As I understand it, the exercise of the Court's parens patriae jurisdiction has traditionally resulted in an order for custody, the jurisdiction being of ancient origin and pre-dating the concept of adoption. It would, however, in my view serve Christopher ill if the Court made an order for custody in favour of the appellants. Counsel for the Director advised that if this were done it would amount in his view to a new placement and, since Mr. and Mrs. Jones have already had Christopher

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in excess of the six-month period, a certificate could be issued by the Director in their favour at any time. It is quite clear that further litigation would ensue if this Court made an order for custody only and this could hardly be in Christopher's best interests. Moreover, an order for custody only would deprive Christopher of the status of being the appellants' "child" in the fullest sense of the term. If ever a child needed the security of that status, this one does. Accordingly, having found that the Newfoundland Court of Appeal was in error in considering itself powerless to safeguard the interests of this child, I would allow the appeal and make the order which that Court ought to have made, namely an order under s. 12 of The Adoption of Children Act, 1972 for the adoption of Christopher by the appellants.

I would award the appellants their costs throughout as against the respondent. I would also award the interveners their costs of the appeal as against the respondent. The Minister of Justice for Newfoundland has undertaken to pay the costs of Christopher's counsel.

I would be remiss if I did not acknowledge the indebtedness of the Court to counsel in this most trying and difficult case. Mr. Day, in particular, deserves the respect and admiration of the Court for the conscientious and sensitive manner in which he discharged his duties as counsel for the child.

Appeal allowed with costs.

Solicitor for the appellants: Jean V. Dawe, Gander.

Solicitor for the respondent: John McCarthy, St. John's, Nfld.

Solicitor for the interveners: H. Stephen Roy, St. John's, Nfld.

Solicitor for the mis en cause: David C. Day, St. John's, Nfld.