NB Court of King’s Bench refuses to stay guardianship application without best interests analysis

The NB Court of King’s Bench has refused to stay a guardianship application without full analysis of child’s best interests.

In New Brunswick (Social Development) v FAH, 2023 NBKB 115, the Minister of Social Development brought an application for a guardianship order concerning an 11-year-old child who has been in protective care for 24 months and resides in a group home.

During the trial, the respondent filed an immediate "permanent stay" of the proceedings because the manager of the group home where the child is staying testified that the child was involved in a physical altercation with other home residents. The respondent contended that the child must be removed from the group home and be placed in a safe and secure living environment free from physical, emotional, and psychological abuse. The respondent further alleged that because of the incident, the child was subjected to physical, emotional, and psychological trauma, which aggravated the historical trauma he had endured before immigrating to Canada with his parents and other behavioural "proclivities."

The respondent also alleged that the minister failed to adequately supervise the child, to provide him with a "safe haven" urgently, and to remove him from the group home after the social workers became aware of the incident.

Guardianship application

The NB Court of King's Bench noted that it must consider the request for a stay within the context of the guardianship application. The governing law from the Supreme Court of Canada and the Court of Appeal states that the sole consideration in making a child protection order, including a guardianship order, is the child's best interests.

The court said, citing jurisprudence, that the test for a stay in child protection involves considerations specific to the child's best interests. Furthermore, the court referred to case law stating that the "fundamental issue in a stay application is to balance the risks of harm—particularly harm to the children—in light of the possible, but as yet unknown, outcome of the application for leave to appeal."

The court agreed with the ruling of the Supreme Court of Canada in New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), stating that a stay of proceedings is inappropriate in cases where the result of the stay would be to return the child to their parent's care. The SCC said that children should not be returned to their parent's care when there is reason to suspect that they need protection. It would run contrary to the purposes of the Family Services Act (FSA).

Best interests of the child

The court noted that the respondent was asking the court to return the child to the parents before undertaking a fulsome analysis of the child's best interests based on all the evidence, contrary to the purpose of the FSA. The court further said that the relief the respondent sought was akin to dismissing the guardianship application. If the court granted the respondent's relief, the result would be to permanently prevent the minister from seeking guardianship of the child.

Counsel for the child argued that the minister may simply "re-intervene" to protect the child if another "intake" is received after the child is returned to the parents. The court found such an argument without merit. The court said that the mere possibility that the minister would subsequently "re-intervene" upon every new intake and return to court is another reason why a stay of proceedings is an inappropriate remedy in the context of a guardianship application. It is especially true in this case, where the 11-year-old child has been in protective care for 24 months. In the court's view, such an approach would be inconsistent with the child's best interests.

The court stressed that the remedy of granting a mid-trial stay of proceedings is not appropriate in the context of the guardianship application as it would return the child to his parents without first determining if it is in his best interests to do so. The court further said that to grant the remedy of a stay equates to bypassing the relevant provisions of the FSA. The proper remedy is to consider the incident involving the child in the context of the full best interests of the child analysis.

Supervisory order

The court also rejected the respondent's contention that staying the proceedings and issuing a supervisory order after the child is returned to the parents would be appropriate. In essence, the respondent asked for a concurrent order that dismisses the guardianship application while keeping the minister involved in a supervisory capacity. The court did not agree that a concurrent relief was proper because it was not convinced that there was any legal foundation to grant a concurrent stay and supervisory order in this case.

The court ultimately dismissed the respondent's motion, concluding that staying a guardianship application is inappropriate because such an extraordinary remedy is contrary to the FSA. It bypasses the best interests test because the effect of the stay is to return the child to the parents, even though it might not be in his best interests to do so, before hearing all the evidence.