Present: Dickson C.J. and Beetz, McIntyre, Wilson and L'Heureux‑Dubé JJ.
on appeal from the court of appeal for new brunswick
Family law ‑‑ Guardianship order ‑‑ Best interests of children ‑‑ Moral turpitude and naming of prospective adoptive parents not among elements set out by statute for determining child's best interests ‑‑ Whether Court of Appeal properly substituted custody order for guardianship order ‑‑ Family Services Act, S.N.B. 1980, c. F.‑2.2, ss. 1, 53(2), 56(1).
The general issue in this appeal was whether it was appropriate for the welfare and protection of two of respondent's children, who had been in protective care, to grant appellant guardianship rather than custody. Appellant's application for guardianship had been denied by the trial judge at the first hearing but was granted on a second application, some ten months later, after a review of the evidence. The Court of Appeal allowed an appeal from that decision, set aside the guardianship order and substituted a custody order. The questions arising out of that Court's judgment which were addressed by this Court were (a) whether the concept of moral turpitude is persuasive under the provisions of the Family Services Act, and (b) whether the Minister when applying for a guardianship order must name the adoptive parents as part of his long term plans.
Held: The appeal should be allowed.
Neither moral turpitude nor the naming of the adoptive parents are included in the Act's definition of best interests of the child which is the paramount consideration established by s. 53(2) when disposing of an application for guardianship. Moral turpitude of parents in the context of the parent‑child relationship, while it may be one of the relevant factors in assessing the child's best interests, is not an element predicating the grant of a guardianship order. To import into the Act a burden of proof of parental moral turpitude, which the Act itself does not require, fails to recognize other situations contemplated by the Act in which children can find themselves in need of protection and in which their security and development is at risk.
Although guardianship may have more permanent and serious consequences than custody, the Act provides some means for the conservation of the relationship between the child and its natural parent or guardian when in the former's best interests. The Minister has discharged the burden of proof of showing the propriety of the measure.
The naming of specific adoptive parents upon a guardianship application is contrary to public policy as enunciated in the Family Services Act. No such requirement is found in the Act. It would thwart the thrust of the Act in the direction of family reunification and would rob the adoption process both of its anonymity and of its underlying rationale that adoptive parents have the opportunity to realize their full capacity as parents uninterrupted and without interference by the natural parents.
Cases Cited
Referred to: Adams v. McLeod, [1978] 2 S.C.R. 621; Novic v. Novic, [1983] 1 S.C.R. 696, aff'd on reconsideration [1983] 1 S.C.R. 700; Racine v. Woods, [1983] 2 S.C.R. 173; Pelech v. Pelech, [1987] 1 S.C.R. 801; Richardson v. Richardson, [1987] 1 S.C.R. 857; Caron v. Caron, [1987] 1 S.C.R. 892; Hepton v. Maat, [1957] S.C.R. 606; Re Baby Duffell: Martin v. Duffell, [1950] S.C.R. 737; In re Agar: McNeilly v. Agar, [1958] S.C.R. 52; Re Moores and Feldstein (1973), 12 R.F.L. 273; Talsky v. Talsky, [1976] 2 S.C.R. 292; King v. Low, [1985] 1 S.C.R. 87; New Brunswick (Minister of Health and Community Services) v. M.(L.), [1988] N.B.J. No. 132; New Brunswick (Minister of Health and Community Services) v. H.(C.), [1988] N.B.J. No. 27.
Statutes and Regulations Cited
Family Services Act, S.N.B. 1980, c. F.‑2.2 [as am. S.N.B. 1983, c. 16], ss. 1, 53(1)(b), (2), 56(1), (3), 60(b), (3), (6), 85(2)(a).
APPEAL from a judgment of the New Brunswick Court of Appeal, [1987] N.B.J. No. 1029, [1988] W.D.F.L. 062, allowing an appeal from a judgment of Richard C.J.Q.B. Appeal allowed.
Catherine A. Jack, for the appellant.
Weldon J. Furlotte, for the respondent.
Judith F. MacPherson, for the interveners.
The judgment of the Court was delivered by
1. L'Heureux‑Dubé J.‑‑The issue in this appeal is whether it is appropriate for the welfare and protection of two of respondent's children, Tracy Lynn Church and Shawna Jennifer Dawn Church, respectively born in 1983 and 1975 and in protective care since October 1985, to grant guardianship rather than custody to appellant. The crucial point to be decided is the burden of proof required on an application by the Minister for guardianship pursuant to the provisions of the Family Services Act, S.N.B. 1980, c. F.‑2.2, as amended by S.N.B. 1983, c. 16, hereinafter referred to as "the Act".
2. On March 29, 1985, the trial judge had refused an application by the appellant for the guardianship of the two children on the basis that, although "a difficult and borderline decision", the Minister "had not met the burden of proof and that there was still a chance to preserve the family unit" of respondent and her two daughters. On January 14, 1986, on a second application, after reviewing the evidence, the same judge rendered judgment granting a guardianship order under s. 56(1) of the Act:
56(1) The court may make a guardianship order transferring from a parent to the Minister on a permanent basis the guardianship of a child, including the custody, care and control of, and all parental rights and responsibilities with respect to, the child.
He concluded this time:
It is clear that Mrs. C. is incapable of fulfilling her responsibilities for the care, supervision and personal development of her children and that even her presence with or around the children is detrimental to their "best interest".
This is no longer a difficult or borderline case. The evidence is overwhelming and cries for a solution, i.e. the granting of a guardianship order. It is granted.
3. By judgment dated November 16, 1987, the New Brunswick Court of Appeal allowed the appeal, set aside the guardianship order and substituted a custody order: [1987] N.B.J. No. 1029, [1988] W.D.F.L. 062. It is from this judgment that leave to appeal was granted.
4. Angers J.A., writing for the Court of Appeal, stated that he had "no difficulty in accepting the conclusions of the trial judge that [respondent was] incapable of taking care of her children". On that basis he "would have [had] no difficulty in upholding an order for permanent wardship" of those children to the Minister under the previous statute. Nevertheless "under the present statutory scheme", he would not do so. In his view, because a guardianship order under the new statute transferred to the Minister "all parental rights", the burden of proof on the Minister was a much more stringent one which he described as follows:
Before the Family Services Act, it was necessary, in order to divest a person of all parental rights, to show that by reason of moral turpitude or abdication of parental rights, the person had forfeited his or her rights to the child. See the Director of Child Welfare v. B.M.(B.)D., (1982) 37 N.B.R. (2d) 334 and S.A. v. Minister of Social Services, (1982) 40 N.B.R. (2d) 252.
I do not wish to say that the concept of abdication of parental right or moral turpitude has survived the Family Services Act. The concept was the product of good sense and while not a requirement in the new legislation its history must give it some weight. Obviously it cannot be determinative but it is persuasive. Today we are more concerned with children's rights than with parents' rights and let it be so. But we must be conscious that most children as they grow older will seek their natural parents; it is a feature of the consanguinity. Surely these are elements to be considered in determining what is in the best interests of every child.
...
There was some evidence of the Minister's plans for the long‑term security and development of the children but the trial Judge did not refer to these plans in his reasons for judgment. The Minister intends to place the children together for adoption. In the meantime they are to remain in a foster home. The evidence showed these intentions but there is nothing to indicate that these intentions will be realized, not even on a balance of probabilities. Not even the names of the intended adopting parents are known. [Emphasis added.]
5. Both the appellant and the intervener on behalf of the children took issue with those two statements as being contrary to the letter and the spirit of the Act. They also stressed, and rightly so, that trial judges' decisions, particularly in matters of family law, should not be interfered with lightly by appellate courts absent an error in principle, a failure to consider all relevant factors, a consideration of an irrelevant factor or a lack of factual support for the judgment (Adams v. McLeod, [1978] 2 S.C.R. 621; Novic v. Novic, [1983] 1 S.C.R. 696, aff'd on reconsideration [1983] 1 S.C.R. 700; Racine v. Woods, [1983] 2 S.C.R. 173, and more recently Pelech v. Pelech, [1987] 1 S.C.R. 801; Richardson v. Richardson, [1987] 1 S.C.R. 857, and Caron v. Caron, [1987] 1 S.C.R. 892).
6. The questions to be addressed by this Court are therefore:
(a) whether the concept of moral turpitude is persuasive under the provisions of the Family Services Act; and,
(b) whether the Minister when applying for a guardianship order must name the adoptive parents as part of his long term plans.
7. At the outset, it is clear that neither of these criteria is to be found in the wording of the Act which sets out as the sole criterion the "best interests of the child" as reflected in s. 53(2) of the Act:
53(2) When disposing of an application under this Part the court shall at all times place above all other considerations the best interests of the child.
8. Section 1 of the Act defines the "best interests of the child" as follows:
1 In this Act
...
"best interests of the child" means the best interests of the child under the circumstances taking into consideration
(a) the mental, emotional and physical health of the child and his need for appropriate care or treatment, or both;
(b) the views and preferences of the child, where such views and preferences can be reasonably ascertained;
(c) the effect upon the child of any disruption of the child's sense of continuity;
(d) the love, affection and ties that exist between the child and each person to whom the child's custody is entrusted, each person to whom access to the child is granted and, where appropriate, each sibling of the child;
(e) the merits of any plan proposed by the Minister under which he would be caring for the child, in comparison with the merits of the child returning to or remaining with this parents;
(f) the need to provide a secure environment that would permit the child to become a useful and productive member of society through the achievement of his full potential according to his individual capacity; and
(g) the child's cultural and religious heritage;
9. These provisions are in line with legislation adopted by most if not all provinces and with the most recent decisions of this Court. In the words of Wilson J., speaking for a unanimous Court in Racine v. Woods, supra, at p. 174:
...the law no longer treats children as the property of those who gave them birth but focuses on what is in their best interests.
10. Dealing with the first issue, while moral turpitude of parents in the context of their relationship with their children may be one of the relevant factors in assessing the best interests of the child, on a proper construction of the statute it is not a necessary element absent which a guardianship order may be refused. The determining factor in decisions concerning children is their best interests.
11. As in adoption, guardianship has the effect of permanently divesting parental rights or their equivalent. The shift from a consideration of parental rights towards that of the child's welfare has, however, been most apparent in disputed adoption cases. Historically, the best interests of the child was read subject to the right of the natural parents to custody of their child. In that context, it was only when evidence of moral turpitude, abandonment or severe misconduct was proven that parents could see their rights terminated (Hepton v. Maat, [1957] S.C.R. 606; Re Baby Duffell: Martin v. Duffell, [1950] S.C.R. 737; In re Agar: McNeilly v. Agar, [1958] S.C.R. 52). In recent years, the legislature and the Courts have considered the welfare of the child as the predominant factor (see amongst others: Re Moores and Feldstein (1973), 12 R.F.L. 273 (Ont. C.A.); Talsky v. Talsky, [1976] 2 S.C.R. 292). No longer is it necessary for the court to find abandonment or other severe misconduct on the part of the natural parents to terminate parental rights, as put by McIntyre J. in King v. Low, [1985] 1 S.C.R. 87, at p. 101:
Parental claims must not be lightly set aside, and they are entitled to serious consideration in reaching any conclusion. Where it is clear that the welfare of the child requires it, however, they must be set aside.
These principles apply to matters of guardianship as well.
12. I readily accept, as stressed by the Court of Appeal, that guardianship may have more permanent and serious consequences than custody. However, the Act provides, under s. 56(3), that where a child is in care under a guardianship order, the Minister may return the child to the former parent periodically. Furthermore, pursuant to s. 60, a Court has jurisdiction to review, vary or terminate a guardianship order if satisfied that it is in the best interests of the child to do so (s. 60(6) and 53(1)(b)). Indeed, section 60(3) provides specifically that where authorized by the Attorney‑General, the child or the former parent may apply to the Court to have a guardianship order varied or terminated. Finally, section 85(2)(a) provides that an adoption order may be made subject to a right of access of the natural parent or guardian.
13. Even if the Act did transfer to the Minister "all parental rights" as stated by Angers J.A., as we have seen, it provides some means for the conservation of the relationship between the child and its natural parent or guardian when in the former's best interests. Indeed, the preamble of the Act declares that "children should only be removed from parental supervision either partly or entirely when all other measures are inappropriate". The burden of proof rests upon the Minister to show the propriety of the measure on the facts of the case. In my view, the Minister has discharged this burden in the case at bar particularly so since the trial judge who had heard and refused a previous guardianship application had then expressed hope for the preservation of the family, a hope that ten months later he could no longer entertain on the evidence placed before him. In his assessment of the matter, the trial judge has demonstrated a cautious approach and has ruled in accordance with the spirit of the Act.
14. To import into the Act a burden of proof of moral turpitude on the part of parents, which the Act itself does not require, fails to recognize other situations contemplated by the Act in which children can find themselves in need of protection and in which their security and development is at risk. By focussing on the welfare of the child, the legislatures and the courts now consider the best interests of the child from the standpoint of the child and not from the standpoint of the parents. The interpretation given by the Court of Appeal in fact contradicts the language and spirit of the Act. On this point, I conclude that the Court of Appeal erred in giving weight to the concept of moral turpitude and by considering it to be persuasive.
15. On the second issue, i.e., the requirement that the Minister name specific adoptive parents on a guardianship application, the Court of Appeal purported to "consider the best interest of the child on a long‑term basis". This ruling of the Court of Appeal was followed, although criticized, in the following decision of the New Brunswick Court of Queen's Bench, Family Division: New Brunswick (Minister of Health and Community Services) v. M.(L.), [1988] N.B.J. No. 132, presently on appeal. The Court of Appeal, reversing the trial judge in New Brunswick (Minister of Health and Community Services) v. H.(C.), [1988] N.B.J. No. 27, reiterated the principles elaborated in this case.
16. Adoption is dealt with in Part V of the Family Services Act. This Part contains numerous provisions to safeguard the rights of the parties. The naming of adoptive parents during guardianship proceedings would defeat the nature and purpose of the Act. The thrust of the Act supports working towards reunification of the family unit until a guardianship order issues. Until then, foster care is designed to be short‑term and is aimed toward the reintegration of children into their natural homes. In addition, such a requirement would deprive the adoption process of its anonymity and its underlying rationale that adoptive parents should have the opportunity to realize their full capacity as parents uninterrupted and without interference by the former parents. The prospective adoption would be precarious and dependent on a judicial decision on the guardianship application as to whether these parents may eventually be able to adopt. In my view, in addition to the fact that there is no such requirement in the Act, the naming of specific adoptive parents upon a guardianship application is contrary to public policy as enunciated in the Family Services Act.
17. On the whole, on the facts in this case which need not be repeated here, I am of the view that the Court of Appeal erred in intervening in the trial judge's discretion given that he made no error in principle and no error has been demonstrated in his assessment of the evidence.
18. Accordingly, I would allow the appeal, set aside the judgment of the Court of Appeal and reinstate the judgment of the trial judge. Given the nature of the case, I would make no order as to costs.
Appeal allowed.
Solicitor for the appellant: Catherine A. Jack, Moncton.
Solicitor for the respondent: Weldon J. Furlotte, Moncton.
Solicitor for the interveners: Judith F. MacPherson, Moncton.
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