The judge granted the mother access to only two of eight children
The NB Court of Appeal has clarified, in a recent family law case, the distinction between effects of parenting order and a permanent guardianship order.
In S.P. c. La ministre du Développement social, 2023 NBCA 36, a mother appealed the decision of a judge to grant only two of her eight children a right of access and visitation with her. The judge also gave custody of the two children to their biological father. Meanwhile, the remaining six children are the subject of a guardianship order that denied access between the children and their mother.
The mother argued that the judge's decision created an inconsistent disposition among the siblings, constituting an error in principle. The mother further asserted that the judge should have applied to the remaining six children the same cultural standard used for the two children. The mother appealed the judge's decision to the NB Court of Appeal.
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The judge provided a detailed review of the evidence of the parent's history of drug abuse, homelessness, mental health issues, violence in the home, frequent moves, lice, bed bugs, home and food insecurity and allegations of child abuse. The appeal court found that in granting custody of the two children to their father, the judge distinguished the criteria set out in the Family Law Act concerning private custody and access disputes from those set out in the Family Services Act concerning guardianship hearings.
The NB Court of Appeal explained a marked difference between the granting of a parenting order under the Family Law Act and the effect of an order for the permanent guardianship of children under the Family Services Act. Under the Family Services Act, all parental rights are severed, and the Minister of Social Development assumes full legal responsibility for the ongoing care of the children who are the subjects of the order.
On the other hand, parenting orders under the Family Law Act are crafted to address the unique fact-based nature of private child custody and access disputes. Such orders do not sever parental rights. Instead, they create an orderly and prescribed way for children to continue to have maximum contact with both parents, provided it is in their best interests.
The courts stressed that access is the child's right, not the parent's. Post-guardianship access orders are exceptional because when a guardianship order is issued, a judge has determined that it is not in the best interests of a child to remain in the care of and under the supervision of their parents. The court emphasized that once that determination is made, the onus shifts to the parents to establish that ongoing contact is in the children's best interests.
The court noted that the judge carefully conducted the best interest of the child analysis by considering several factors, including the children's cultural, linguistic, religious and spiritual upbringing and heritage, including their First Nations heritage. He found that continuing contact between the two children and their mother would be a "link" to their Indigenous culture.
The appeal court also noted that the judge's conclusion to grant two of the children limited access to their mother could be readily distinguished from that made for the remaining six children. The court noted that the Minister plans to place the remaining six children in care in the Elsipogtog First Nation to have them adopted. This placement would recognize and allow them to link with their cultural heritage. The court said that the Minister's plan for the remaining six children offers them stability and certainty and is in their best interests.
The appeal court pointed out that the decision not to grant children access to their biological parents following the issuance of a guardianship order does not depend exclusively on the risk of undermining the adoption process. It is a decision taken in consideration of the evidence as a whole and in the child's best interests.
The court found that the judge followed a thorough review of the evidence, which chronicled a lengthy history of the mother's instability and irregular attendance for access visits. The judge determined there were no demonstrated "exceptional circumstances" to support granting post-guardianship access. The court concluded its decision by dismissing the mother's appeal.