Focus On

Family Law - Child protection - Protective agencies and institutions - Permanent crown wardship - Considerations - Best interests of the child - Parents’ ability to provide stable environment - Appeals

Thursday, August 25, 2016 @ 8:00 PM  

Appeal by the Ministry of Community Services from an order dismissing its application for permanent Crown wardship and returning the children to the care of their parents. The Minister had sought permanent care orders in respect of two children, now ages two and four, who had been in protective care from shortly after their respective births. The Minister submitted the parents did not have the capacity or ability to care for the children. The Minister believed the children were in need of protection and that return to the parents would expose the children to substantial risk of chronic neglect and physical and emotional harm. The trial judge found that although both parents were intellectually disabled, the children were no longer in need of protection. The children were returned to their parents’ care. The Minister appealed and adduced fresh evidence in support of its position that the risk to the children remained high and had arguably increased since their return to their parents’ care. The Minister sought an order for permanent care rather than a retrial.

HELD: Appeal allowed. In considering whether the children required protective services, the trial judge erred by adopting a parent-centric approach rather than focusing on the best interests of the children. Although the judge stated the correct child-centred legal principles, those principles were not applied. The judge inappropriately referenced material that was not before the court in support of a new perspective on the ability of disabled parents to care for their children. The judge’s new perspective utilized an erroneous focus and legal standard that did not exist in the governing legislation or applicable jurisprudence. In addition, the trial judge erred in interpreting and applying ss. 22(1), 22(2)(b), and 22(2)(k) of the Children and Family Services Act to the issues of substantial risk, protective services, and the parents’ ability to resume care of the children. The appropriate disposition was consistent with the relief initially sought by the Minister. Ample evidence supported a determination the children were in need of protection due to serious and chronic underlying concerns. The parents’ maladaptive behaviour, conflict, and deficient parenting were unlikely to improve. The children were placed in the permanent care and custody of the Ministry.