The law does not remove judicial authority to grant such orders in a child's best interests
The New Brunswick Court of Appeal ruled that courts retain jurisdiction to order post-guardianship contact under the Child and Youth Well-Being Act (CYWBA), affirming that the legislation does not remove judicial authority to grant such orders when they serve a child's best interests.
The case involved a 12-year-old child who had been in the Minister of Social Development's care since November 2022 and resided in a group home. The child's parents faced health challenges that affected their ability to provide consistent care, but they maintained a strong relationship with frequent visits each week.
The court granted the minister's request for a permanent guardianship order. However, the application judge also ordered continued contact between the child and the parent, finding that ongoing communication aligned with the child's best interests. The minister appealed, arguing that under s. 69(5) of the CYWBA, courts lacked jurisdiction to order post-guardianship contact, as such decisions fell solely within the minister's discretion.
Before the Court of Appeal, the key issue was whether s. 69(5) of the CYWBA removed the courts' authority to order post-guardianship contact. The minister argued that a guardianship order immediately turns a parent into a "former parent," giving the minister exclusive jurisdiction to decide any contact.
The opposing argument asserted that courts should interpret the CYWBA in line with established jurisprudence, which previously recognized their implied jurisdiction to grant post-guardianship contact in exceptional cases. Following this approach, the application judge concluded that the language of s. 69(5) did not explicitly remove court jurisdiction, emphasizing that legislative changes must be exceptionally clear to alter existing legal principles.
The Court of Appeal upheld this reasoning, stating that the CYWBA's purpose of promoting children's well-being supports an interpretation allowing courts to order contact when it serves the child's best interests. The court found no explicit language in the CYWBA prohibiting judicial authority to grant such orders. It noted that similar legislation in Nova Scotia expressly precludes courts from ordering post-guardianship contact, whereas the CYWBA contains no such prohibition.
The court emphasized that preventing judges from ordering post-guardianship contact could result in unnecessary delays or administrative barriers, potentially disrupting the child's connection with their family. It found that requiring former parents to apply separately to the minister for contact would be inefficient and contrary to the child's stability.
Additionally, the court rejected the argument that s. 69(5) grants the minister absolute discretion over post-guardianship contact. Instead, it ruled that the provision provides an alternative avenue for former parents to request contact but does not eliminate judicial discretion.
Ultimately, the court dismissed the appeal, confirming that courts in New Brunswick retain jurisdiction to order post-guardianship contact when it aligns with a child's best interests.
