[1]         The appellants appeal from a Provincial Court judge's decision to terminate their access to their two children by way of order made pursuant to s. 57 of the Child Family and Community Service Act, R.S.B.C. 1996, c. 46 [CFCSA], on June 27, 2023 (the “Access Order Decision”).

[2]         The two children involved in this matter are G., and D., (the “Children”), who are presently aged 10 and 9 respectively. The appellants are their parents. Both Children were apprehended from the appellants at an early age. They were returned to their parents under supervision in March 2015, but were removed again on July 11, 2017, due to the appellants’ breach of a supervision order. In August 2017, interim custody of the Children was granted to the Director of Child, Family and Community Service (the “Director” and/or the “Ministry”) by consent, and on March 12, 2018, the Director obtained temporary custody, also by consent.

[3]         A judge of the Provincial Court determined the question of whether there should be a continuing custody order (“CCO”) in favour of the Ministry following a five‑day trial in January 2020 (the “CCO Trial”). By way of unpublished reasons for judgment dated April 28, 2020 [the “2020 Reasons”], the judge granted the Ministry a CCO and provided the appellants, who by this time were no longer living together in a relationship, with access. At para. 106 of the 2020 Reasons, the judge found that it was in the best interests of the Children for the appellants to have access to them. He therefore granted the access order, with unspecified discretion to the Director.

[4]         Both Children have complex needs. They were both previously diagnosed with significant developmental delays and attention deficit hyperactive disorder. G. is also on the autism spectrum and has a language impairment.

[5]         The appellant, A.B.M., filed an application on November 12, 2022 to increase her post‑CCO access. That application was struck for procedural reasons and was refiled on December 14, 2022. All told, there were a total of eight court appearances dealing with A.B.M.’s access application prior to the Access Order Decision.

[6]         The Ministry contemplated adoption from the time it was granted the CCO and it is evident from the 2020 Reasons that the long‑term plan was to place the Children with an adoptive family. The Ministry filed an application on February 17, 2023, to terminate the appellants’ access. The Ministry was seeking to place the Children with a permanent adoptive family and was concerned that the adoption would not go forward if the access order remained in place. On March 13, 2023, the appellant, D.B.B., also filed his own application to increase post‑CCO access.

[7]         The Ministry’s application was before Judge Daneliuk on May 16, 2023. At that time, Judge Daneliuk ordered that the parties go to the judicial case manager to schedule a 30‑minute appearance before the judge who had heard the CCO trial. The Director’s application came before the judge on June 27, 2023 (the “Access Order Hearing”). It is the resultant order from that hearing, the Access Order Decision, that is the subject of this appeal.

[8]         At the Access Order Hearing, both appellants were separately represented by counsel, as was the Director. A day or so before the hearing, the Director filed an affidavit of Ms. Vanessa Marin, a social worker with conduct of the file. Ms. Marin's affidavit outlined the steps taken by the Ministry to find an adoptive family for the two Children.

[9]         During the Access Order Hearing, counsel for the Director outlined the history of the matter and the reasons why the appellants’ access should be cancelled. The Director’s reasons largely turned on the prospective adoption and the Ministry’s concern that it would not go forward with the access order in place.

[10]      Counsel for D.B.B. made submissions with regard to an Act Respecting First Nations, Inuit and Métis Children, Youth and Families, S.C. 2019, c. 24 [Federal Act], arguing that the permanent placement by way of adoption was proceeding too quickly, and that termination of access would not be in the Children's best interests.

[11]      A.B.M. also had counsel at the hearing—a lawyer that had only just become involved with the file. Counsel encouraged the court to take the Children's views into account and pointed out that three years had elapsed since the CCO Trial. In their submission, that meant a new s. 211 views of the child report should have been completed.

[12]      The judge proceeded to make inquiries of the appellants as to steps they had taken since the CCO Trial. As for A.B.M., she advised the judge of a number of courses that she had taken; however, upon closer inspection, the majority of those courses predated the CCO Trial. As for the appellant D.B.B., the judge saw no meaningful improvement in his ability to parent.

[13]      In the result, the judge made the Access Order Decision.

[14]      I am advised that the Children have since been placed with the prospective adoptive family, but the adoption has not been finalized.

[15]      The appellants allege the judge made the following errors:

[16]      For the reasons that follow, the appeal is dismissed.

[17]      No party made submissions as to the appropriate standard of review to be applied on this appeal. I find that the standard of review on the appeal pertaining to the decision to cancel the access order is correctness. The allegations with regard to procedural fairness are that the judge made an inappropriate exercise of discretion with regard to trial management. The grounds of appeal related to procedural fairness therefore attract a deferential standard.

[18]      As noted in Housen v. Nikolaisen, 2002 SCC 33, the appellate standard of review varies depending on the alleged error. On a question of law, the standard is one of correctness: para. 8. On a question of fact, or mixed fact and law that involved the application of a legal standard to a set of facts, the standard of review is that of palpable and overriding error: paras. 10, 28–29.

[19]      The Supreme Court of Canada in Housen instructs that a court must carefully discern between an error on a question of mixed fact and law and a pure error of law. At para. 27, Justices Iacobucci and Major for the majority wrote:

[20]      Justice Fish, for the majority, in H.L. v. Canada (Attorney General), 2005 SCC 25 described palpable and overriding error as follows at paras. 55–56:

[21]      Further, Justice D. Smith in Director of Child, Family & Community Service v. A.M., 2007 BCSC 1039, appeal dismissed at 2008 BCCA 178 [A.M. BCCA], summarized Housen as it pertains to questions of mixed fact and law. Justice Smith wrote:

[22]      The scope of appellate reviewed in family law matters has also been described as a narrow one that is limited to an error in principle, failure to consider all relevant factors, a consideration of an irrelevant factor, or a lack of factual support for the judgment: New Brunswick (Minister of Health and Community Services) v. C.(G.C.), [1988] 1 S.C.R. 1073 at 1077, 1988 CanLII 34 [C.(G.C.)], New Brunswick (Minister of Health and Community Services) v. L.(M.), [1998] 2 S.C.R. 534 at para. 35, 1998 CanLII 800 [L.(M.)].

[23]      In A.M. BCCA, the Court of Appeal considered a decision of a judge of this court to overturn a British Columbia Provincial Court decision to vary an access order but otherwise continue it. The Supreme Court decided the standard of review was correctness and determined the access order should have been cancelled on proper consideration of the decision. The Court of Appeal agreed that the failure of the Provincial Court judge to apply either the best interests of the child principles found in s. 4 of the CFCSA or the common law principles enumerated in L.(M.) was an error law. A judge’s failure to exercise their discretion judicially, guided by the applicable legal principles, is an error of law: para. 33.

[24]      The first two issues on appeal this appeal, relating to the substantive legal questions, allege that the judge misapplied the legal framework in reaching his conclusions, attracting a correctness standard: Housen at paras. 26–26.

[25]      The appellate standard of review on a matter of procedural fairness does not accord as easily with the standards set out in Housen. Nonetheless, the starting point is that procedural fairness is a foundational principle; all parties must have an opportunity to present evidence and advance their submissions: Moradkhan v. Mofidi, 2013 BCCA 132 at para. 81.

[26]      The Court of Appeal recently discussed the appropriate appellate standard of review on procedural fairness grounds in Katz v. Zentner, 2022 BCCA 371 [Katz]. Justice Abrioux held that when advancing an argument based on “procedural fairness” in the appellate context, the standard of review depends “on the legal basis for the substance of the allegation”: para. 44.

[27]      In Katz, the substance of the ground of appeal was based on an order pronounced after a trial and was grounded in an alleged material error and/or unreasonable exercise of discretion made during the trial pursuant to the judge’s trial management power: para. 46. The appellant alleged that the error or unreasonable exercise of discretion amounted to a miscarriage of justice. Characterized in that way, the appropriate standard of review was deferential, absent error of principle or unreasonable exercise of discretion by the judge the trial management direction was entitled to deference: para. 47.

[28]      Applying Katz to the circumstances, I similarly find that the judge’s decision to hear the matter on its merits was an exercise of discretion entitled to a deferential standard of review.

[29]      As noted above, the question of whether the adoption should go forward largely eclipsed the hearing wherein the judge ultimately made the Access Order Decision. Both parties made submissions to that effect in front of the judge and he in turn made inquiries of the appellants with regard to the competing applications that were or may have been in front of the Provincial Court.

[30]      However, the actual issue before the judge was only whether the appellant's access should be terminated. It is readily apparent that the two issues are linked. The only reason for the Director’s application to terminate access was because there was a proposed adoption and the Ministry’s stated concern that it would not go forward. The order to terminate access was not sought for reasons arising out of how the appellant's access had been going, and since the access order provided significant discretion to the Director in any event, the Director would likely not necessarily have had to bring a formal application if the only concern had been the quality of the access visits.

[31]      Although the Director’s application to terminate access was motivated by the possibility of adoption, whether the Children should be adopted, and by whom, was not before the judge; neither did he make such a decision. For the purposes of this appeal, it is important to keep in mind that the only matter he was asked to decide and the only question he did decide was whether the appellants’ access to the Children should be terminated.

[32]      The parties took a similar approach at the hearing of this appeal and in their submissions in support of the same. For example, the appellants’ joint submissions begin with a statement to the effect that it is inappropriate for a court to presume that adoption is always in the best interests of Indigenous children. The Director’s submissions turned largely on the appellants’ legal position in relation to the Children following the CCO and the judge’s findings in the 2020 Reasons.

[33]      In his submissions, counsel for the Director suggests the test to be applied here is under s. 56(3) of the CFCSA. He noted that the basis of the cancellation in this instance should be that it is now inconsistent with s. 56(3)(b), namely, that an applicant may be granted access to a child if it is consistent with the plan of care. He says the application filed on February 17, 2023 was filed on the basis of s. 56(3)(b) to cancel the appellants’ access because it is not consistent with the plan of care, to wit: placement of the Children for permanent adoption.

[34]      With respect, the Director overlooked that the test for cancelling an access order is located in s. 57(3) of the CFCSA. Section 57 reads as follows:

[35]      On a question of changing or cancelling an access order under s. 57, the applicant bears the burden of proving a change of circumstances and that cancelling access is in the child’s best interests: Director of Child, Family & Community Service v. A.M., 2007 BCSC 1039 at para. 32 [A.M. BCSC], aff’d A.M. BCCA.

[36]      An important consider in the case at bar is that the appellants have lost their parenting rights to the Children by way of the CCO. In L.(M.) at para. 17, Justice Gonthier considered this reality in relation to an access order:

[37]      The CCO can be permanent; by virtue of s. 53 of the CFCSA, a continuing care order remains in place until one of a number of circumstances occur, including when the Children reach 19 years of age or if they are adopted. Therefore, it is appropriate to consider the guidance in in L.(M.) in these circumstances. That the right of access now belongs to the Children, not the parents, must factor into the best interests of the child test under s. 57(3) of the CFCSA.

[38]      The appellants say that that s. 57 should not apply in this instance because of the Federal Act. They say the Federal Act applies by s. 7 therein and because the Children are Métis—a fact that is not in dispute. I agree. However, I disagree with the appellants that the CFCSA should not apply in the circumstances. As noted by Justice Walkem in J.W. v. British Columbia (Director of Child, Family and Community Service), 2023 BCSC 512, the CFCSA applies concurrently with the Federal Act, subject to the doctrine of federal paramountcy if or when the two are in conflict: para. 27.

[39]      In my view, the provisions at issue here are not in conflict and can be read alongside each other, at least with regard to s. 10 of the Federal Act. Section 57(3), as noted, sets out a two‑part test: (1) the applicant must demonstrate that the circumstances have substantially changed and (2) the applicant must demonstrate that the decision would be in the best interests of the children. Subsections 10(1), 10(2), and 10(3) of the Federal Act prescribe what this means in the case of Indigenous children. Put another way, s. 10 of the Federal Act informs how s. 57 is to be interpreted when a child is Indigenous and the court must make decisions about their care. The provisions read as follows:

[40]      Therefore, the appropriate test to cancel an access order in the circumstances is found in s. 57(3) of the CFCSA, with the best interests of the child test informed by s. 10 of the Federal Act. I will evaluate the Access Order Decision in light of this test.

[41]      The appellants made further submissions to the effect that ss. 16 and 17 of the Federal Act should apply. This will be discussed in more detail below. However, in short, I find that these provisions are not relevant to the dispute at issue: whether the Access Order Decision should be overturned. Sections 16 and 17 of the Federal Act apply in circumstances where an Indigenous child is being placed. The heading of that part reads “Placement of Indigenous Child”. Section 16 sets out an order of priority with which an Indigenous child should be placed, followed by other considerations, including encouraging contact with the child’s siblings and requiring consideration of Indigenous customs and traditions in placement decisions. Section 17 stipulates that where an Indigenous child is not placed with their parents or family members, child and family services should be provided, where it is in the best interests of the child, such that the child’s attachment and emotional ties to members of their family are promoted.

[42]      With respect, the parties’ submissions at times misconstrued what is at issue on this application. Whether the Children will be adopted is certainly a live issue between the parties and will accordingly inform the analysis on the access question. However, it would be inappropriate to overturn the Access Order Decision for the judge’s purported failure to apply provisions—ss. 16 and 17 of the Federal Act—that are irrelevant to the question to be decided. Accordingly, in what follows, I will only attend to the arguments that are relevant to the narrow issue on appeal, which is whether the access order should have been cancelled.

[43]      The Federal Act applies to the provision of child and family services to Indigenous children and applies to the respondent Minister pursuant to s. 7 of the Federal Act. The Federal Act requires that certain additional factors be considered when determining the best interests of Indigenous children, and the appellants argue that the judge failed to do so when he terminated their post‑CCO access.

[44]      There are two parts to the Federal Act, which were described by Walkem J. in J.W.:

[45]      The purpose of the Federal Act is set out in a lengthy preamble as follows:

[46]      The legislative purpose of the Federal Act, consistent with the preamble, is to consider the best interests of Indigenous children with reference to and with due consideration given to their cultural and Indigenous background. At paras. 85 and 86 of J.W., Walkem J. stated the following:

[47]      In J.W., Indigenous children had previously been placed with non‑Indigenous foster parents. Over time, the connection between the children and their Indigenous community had become more distant. An agency associated with their Indigenous community became involved and the children were moved from the foster family to caregivers within their Indigenous community. The foster parents applied for access which was opposed by the Indigenous agency responsible for their care. Justice Walkem concluded that it was not in the best interests of the children for the foster family to have access.

[48]      In this case, the appellants argue that the judge failed to take the Federal Act into account prior to approving the adoption. They argue that inquiries ought to have been made with regard to the Children's Indigenous heritage and how that may be promoted by way of the proposed adoption placement, and that it may have been in the Children's best interests to leave them with the foster parents.

[49]      There are a number of difficulties with these arguments, the most pressing being that the question of whether the proposed adoption should proceed was not in front of this Court. Further, as a result of the CCO, the parents are legal strangers to the Children, with the exception of the post‑CCO access order. In other words, the parents have lost the right to input with regard to the future care of the Children. All of those rights were awarded to the Ministry through the CCO. In any event, the arguments made about leaving the Children with the foster family are not relevant to the question of whether the appellants’ access to the Children was appropriately cancelled.

[50]      The Director’s application to terminate access required the judge to undertake an analysis under section 57(3) of the CFCSA. I am satisfied that the judge did so.

[51]      First, I am satisfied that the possibility of an adoption, which includes placement of the children with the potential adoptive family for what amounts to a trial period, constitutes a material change in circumstances such that the court was entitled to consider if continued access was in the best interests of the children.

[52]      Having found that the possibility of an adoption constituted a material change in circumstances, the question turns to what would be in the best interests of the children.

[53]      While the judge's decision is not in the nature of formal reasons for judgment, I am satisfied that he was well aware that he needed to make a decision based upon what he considered to be in the best interests of the children. I am also satisfied that he did so. The factors to be considered with regard to the best interests of the children are well known and are enumerated in s. 4 of the CFCSA, to be read alongside those in s. 10(3) of the Federal Act. Judges in British Columbia are very familiar with making decisions with regard to the best interests of children. Such considerations form the basis of numerous decisions made in family cases on a daily basis. Further, the Federal Act has been in force since January 2020, and I am confident that the judge is familiar with these provisions and how they apply.

[54]      It is not necessary for a judge to restate the entirety of the section, or to review each subsection individually, in order to satisfy a reviewing court as to whether the judge made his or her decision based solely upon the best interests of any particular child. In this case, not only was the judge very familiar with CFCSA matters, he was specifically aware of these children and their circumstances based upon his involvement in their in this case through the years.

[55]      The Children’s Indigenous background was before the judge. The Children are Métis through their father's side of the family which was based in Québec. He was aware of this both because of his prior involvement, and also because the Director brought to his attention a letter from the Métis Commission in support of the proposed adoption.

[56]      Section 50.06 of the CFCSA requires the Director to consult and cooperate with the appropriate Indigenous group prior placing an Indigenous child for adoption. When the proposed adoptive family was identified, the Ministry initiated contact with the Métis Commission of British Columbia. The Métis Commission provided feedback that they supported the proposed adoption. It follows that the judge could have, and undoubtedly did, take some comfort from its position. By way of a letter dated May 5, 2023, the Cultural Safety Supervisor for the Métis Commission advised the social workers, including Ms. Marin, of the following:

[57]      Further, the affidavit from Ms. Marin also confirms the following:

[58]      While the Métis Commission letter and Ms. Marin’s affidavit speak to the adoption and not the question of access, I expect that the judge considered that the Children would be supported to connect to their Indigenous culture even if access were to be cancelled to facilitate the adoption. Given that the access question arose because of the adoption, it was appropriate for the judge to consider how the adoption would further the Children’s best interests. While not express in his application of the factors under s. 10(3) of the Federal Act, I can infer from the above that the judge was alive to the importance of preserving the child’s cultural identity and any plans for the child’s care, including care in accordance with the Indigenous community to which the Children belong. These are factors (d) and (f) of s. 10(3).

[59]      I am satisfied that the Children’s Indigenous heritage was taken into account by the judge throughout while he applied the best interests of the child test under the Federal Act. This ground of appeal must fail.

[60]      The appellants argue that the Provincial Court did not have the minimum amount of reliable evidence to allow the judge to consider the mandatory factors in the Federal Act. They argue the evidence in Ms. Marin’s affidavit:

[61]      In the alternative, they argue the judge erred by considering only the Ministry’s evidence and did not afford the appellants the opportunity to tender evidence of their own regarding the mandatory considerations under the Federal Act before cancelling their access in order to facilitate the proposed adoption.

[62]      This ground of appeal substantially overlaps with and is somewhat inextricable from the appellants’ first ground of appeal. The analysis set out earlier in these reasons with regard to the evidence in front of the judge thus similarly applies here without express repetition.

[63]      I do not accept the appellants’ submissions under this ground of appeal. In general terms, I am not satisfied that the appellants have standing to challenge the Ministry’s adoption placement decision. The Ministry was the legal guardian of both Children. The appellants’ legal position as it relates to the Children was limited to their post‑CCO access order. The appellants’ access was a limited carve‑out from the Ministry's full guardianship powers.

[64]      Turning to the specific errors alleged, for the reasons set out under the first ground of appeal, the appellants’ submissions are flawed because the judge was not being asked to decide whether the Children should be adopted. The question of whether these Children needed continuing care had already been conclusively determined at the CCO Trial and in the 2020 Reasons.

[65]      With regard to the evidence in front of the court, regard must be had to the informal and ongoing nature of CFCSA proceedings, especially where a judge is seized of the matter, such as in this case, In L.J. v. Dir. Of Child, Family and Community Services, 2000 BCCA 446, the Court of Appeal confirmed that CFCSA proceedings are ongoing and flexible in nature. The Court described the procedures in child protection cases as follows:

[66]      Further, the Court confirmed that prior decisions need not be relitigated:

[67]      Of relevance here is also s. 66(1)(b) of the CFCSA, which states, in part, that a hearing under the CFCSA may be as informal as the judge may allow. In L.J., the Court of Appeal held that s. 66 affords a hearing judge considerable scope to craft a proceeding that is appropriate in the circumstances of a given case, including to consider what evidence emerged out of past hearings: para. 33.

[68]      As for the information before the judge, he was seized with the case. He was well aware of the Children, their needs and circumstances, and of the appellants’ abilities and limitations because he had heard the CCO Trial. He was also aware of the Ministry’s long‑term plan to place the Children for adoption and the difficulties it may encounter: 2020 Reasons at paras. 102–104. In the 2020 Reasons, the judge noted that one of the reasons why he granted post‑CCO access was that adoption was unlikely to be a quick process: para. 104.

[69]      In the circumstances, the judge’s knowledge of the case and his appreciation of the application before him was not limited to the Ministry social worker’s affidavit. It was also based on his longstanding familiarity with the case. He was aware there was some urgency to the application given the possibility of an adoption placement and the challenges associated with securing an adoption given the Children’s needs.

[70]      Further, and as I have already discussed under the first ground of appeal, the judge had some evidence in front of him regarding the Children’s Indigeneity and how cancelling access—vis‑à‑vis encouraging the prospective adoption to go forward—would be in the Children’s best interests. In my view, this evidence was sufficient to meet the requirements of the Federal Act. Though some of that evidence was supportive of adoption, rather than cancelling access, the adoption nonetheless pertains to factors enumerated under s. 10(3) of the Federal Act. For example, s. 10(3)(b) requires the court to consider “the child’s needs, given the child’s age and stage of development, such as the child’s need for stability”. Adoption will certainly provide the Children with some stability.

[71]      The appellants’ alternative submission under this ground of appeal is that the judge did not give the appellants sufficient time to tender evidence of their own regarding the mandatory considerations under the Federal Act before cancelling their access in order to facilitate the proposed adoption. I discuss this in more detail under the procedural fairness analysis below. However, though the appellants argue that the judge had insufficient evidence about what would be in the Children’s best interests from a cultural perspective, there was no suggestion that either appellant was in a position to enlighten the court. D.B.B. suggested to the judge that someone from the Penticton Indian Band might be prepared to advocate on their behalf, the Children are not members of that Band. Different Indigenous groups in Canada have different languages, cultures, traditions and beliefs. There is no single homogenous Indigenous culture.

[72]      In any event, as the Director brought the application under s. 57(3) of the CFCSA, the Director had the burden of demonstrating that cancelling access was in the best interests of the Children, having regard to the factors in s. 10(3) of the Federal Act. I have already found that the judge’s determination that the Director had done so was correct in the circumstances.

[73]      The appellants argue that the manner in which the hearing to cancel their access took place was contrary to the requirements of the CFCSA and to the interests of fundamental justice.

[74]      The principles of fundamental justice apply to child protection proceedings. In New Brunswick (Minister of Health and Community Service) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46 at paras. 70, 73, 1999 CanLII 653, Chief Justice Lamer, writing for the majority, explained:

[75]      The procedures under the CFCSA are set out in the legislation, but courts routinely take a flexible approach. In B.B. v. British Columbia (Director of Child, Family and Community Services), 2005 BCCA 46, Justice Huddart described the flexibility, informality and evolutionary character of child protection proceedings under the CFCSA. To this end, citing L.J. at paras. 26, 28, and 34, she wrote that “proceedings must be as flexible and informal as is consistent with fairness” and ‘[t]he scheme of the Act envisages ‘an evolving process whereby a court is enabled, on the best evidence currently available, to decide what should be done concerning the custody and care of children’ (para. 34).”

[76]      The Court of Appeal in L.J. wrote that “[t]he process should be kept as informal as possible [in] order to ensure that the interests of the children and the interests of the parents are properly taken account in what will often be changing and fluid situations”: para. 26. Therefore, in my view, what is procedurally fair in the circumstances must be determined in light of the purposes of the CFCSA and s. 66.

[77]      Section 64(1) of the CFCSA provides for disclosure as follows:

[78]      The appellants argue that the Ministry failed to make sufficient disclosure prior to the hearing, and that the process was unfair because the appellants assumed that the Access Order Hearing was going to be procedural rather than substantive in nature.

[79]      The appellants argue procedural fairness in this case mandated that the Ministry make ongoing disclosure. When asked, the appellants identified the following documents as ones they say should have been disclosed:

[80]      In keeping with standard practice, the appellants say that all of these documents would be vetted.

[81]      While I can accept that certain of these documents could have been relevant for the purposes of the CCO Trial, it does not follow that the documents were relevant to the Access Order Decision. The appellants have failed to explain the same. It also does not follow that the Ministry’s disclosure obligations continue to be expansive and cover every possible document when the CCO Trial has been concluded.

[82]      I accept that there is nothing in the CFCSA that distinguishes between the disclosure obligations prior to trial (i.e. the CCO hearing) and other processes. However, what changes following various hearings, given the cumulative and sequential nature of the process as outlined in L.J. is that relevance is necessarily narrowed when issues are conclusively resolved.

[83]      While the appellants had the right to apply to set aside the CCO, the sole issue before the judge was whether or not the appellants’ post‑CCO access to the Children should be terminated. It is not apparent that many, if any, of the documents identified by counsel for the appellants, if they exist, would inform the court on the issue, perhaps save and except for supervised visit reports.

[84]      While the adoption process necessarily impacts significantly on access, it does not necessarily follow that the appellants necessarily will have the opportunity to participate in the adoption process. It must be kept in mind that with the narrow exception of their post‑CCO access, all rights of guardianship were terminated by the CCO. It is not apparent that the appellants are entitled to any information regarding the proposed adoptive family.

[85]      With reference to the list of documents the appellants say should have been disclosed—and putting aside whether it would be the subject of a “document”—I am not satisfied that the question of whether the foster family might be available on an indefinite basis is something that would inform the issue of continued access. Foster families are a Ministry resource subject to contractual obligations. The Ministry is entitled to make decisions to reallocate its resources in certain circumstances.

[86]      Lastly, I note the language of s. 64(1) that stipulates firstly that “if requested, a party to a proceeding under this Part, including a Director, must disclose fully and in a timely manner to another party to the proceeding…” (emphasis added). Section 64(3) further provides a party dissatisfied with the requested disclosure a remedy: “[e]vidence may be excluded from a hearing under this Part if no reasonable effort was made to disclose the evidence in accordance with this section”. In my view, the wording of this provision and the corresponding remedy puts an onus on a party seeking disclosure to be actively pursuing the same. The appellants did not suggest on appeal that they had submitted such a request for disclosure. Further, had the appellants done so and thereafter been dissatisfied with the Director’s disclosure or lack thereof, they could have and should have raised this issue at the Access Decision Hearing to argue the evidence should have been excluded in accordance with s. 64(3). It is, in my view, misguided to raise this as a concern about procedural fairness without having complied with the statutory requirements.

[87]      Applying a deferential standard of review, I am not satisfied that the appellants have established that the Director failed make the requisite disclosure and that the judge should have ordered the same. There is therefore no procedural unfairness stemming from the lack of disclosure.

[88]      I turn now to the hearing itself. The appellants argue that their counsel did not have an opportunity to address the evidence that was before the court. They say they were faced with an element of surprise because counsel for the Director was asking that a decision be made based on information within a late disclosed affidavit with no opportunity to scrutinize the information before the court.

[89]      The first appearance before the Provincial Court with regard to the Director’s application to cancel the appellants’ access was on May 16, 2023 before Judge Daneliuk. There was a discussion about process before her, and she referred the parties to the judicial case manager (“JCM”) to find time before the judge because he was seized of the matter. Judge Daneliuk stated the following at page 5 of the transcript from May 16, 2023:

[90]      After some discussions about dates, Judge Daneliuk concluded as follows:

[91]      The next hearing was the Access Order Hearing. The only filed evidence before the judge was Ms. Marin’s affidavit, filed and served on the appellants on the preceding day. This Court has the benefit of a full transcript of the hearing before the judge on that date.

[92]      The appellants each had counsel at the Access Order Hearing, as did the Director. Counsel for the Director, Mr. Kennedy, started off by advising the judge that the matter was before him to get direction as to how to proceed with the access application. He then made submissions on behalf of the Director.

[93]      Mr. Kennedy advised the judge that Ms. Marin’s affidavit had been filed the day before and that, from the Director's perspective, there was some urgency to the application to cancel access. The urgency was because a permanent placement had been found for the Children and there was a concern the placement might be lost if the issue of access was not dealt with promptly. Mr. Kennedy also advised the court that the appellants had been notified of the application as of February and that the parents had been updated of the prospects of adoption in the intervening time.

[94]      Following counsel for the Director’s submissions, counsel for D.B.B. made submissions with regard to the Federal Act. She also expressed some concern with regard to the Children having already been made aware of the possibility of adoption, and if access were terminated, there would be no one to look after the Children’s interests. Counsel also pointed out that there were no incidents noted with regard to the parents’ access and that the views of the child should be obtained by way of a s. 211 report.

[95]      Counsel for A.B.M. was new to the file and adopted the submissions of counsel for D.B.B., emphasizing the relevance of the views of the child.

[96]      Counsel for the appellants also brought to the judge’s attention the possibility of an application by the appellants to terminate the CCO. There was a discussion as to whether an application had actually been filed or was simply being considered, and the parties appear to have agreed that it was likely the latter rather than the former.

[97]      Although the judge was only deciding whether or not to terminate access, he nonetheless took it upon himself to make further inquiries. Specifically, he inquired with regard to the suggestion on behalf of both appellants that they will intended to seek and to terminate the CCO. If either of the appellants were successful in setting aside the CCO, the children would be returned to either or both parents and an adoption would no longer be appropriate.

[98]      Such inquiries would seem prudent in all of the circumstances. The Director’s plan was to place the Children with a prospective adoptive family. However, if the adoption was unlikely to proceed for whatever reason, an order to cancel access would not have been appropriate because the only reason for the application was to facilitate a possible adoption.

[99]      The judge already knew of the Métis Commission’s position regarding the prospective adoption. The Métis Commission supported the proposed adoption as being in the Children’s best interests.

[100]   The judge then proceeded to make inquiries, both of counsel and A.B.M. directly as to what might have changed since the CCO Trial that might provide some evidentiary foundation for such an application if one were brought. He concluded that little to nothing had changed, pointing out that, at least in the circumstances of A.B.M., many of the courses and certificate she pointed to as evidence of her having made significant changes actually predated the CCO Trial.

[101]   The judge then ordered that the appellants’ post‑CCO access would be terminated.

[102]   From my review of the transcript, it is apparent that neither of the appellants took issue with the process as it unfolded. Although Ms. Marin’s affidavit was only filed the day before, there was no suggestion from any party that they took issue with the affidavit, or that they needed an opportunity to review it or to respond to it.

[103]   The only matter of substance that was brought to the judge’s attention as to the appellants’ future intentions was the possibility of an application to cancel the CCO. The judge took care to determine if there were such an application pending, and even though it appeared that there was not, he was alive to the possibility that one could be filed based upon the submissions of counsel.

[104]   The judge made inquiries with regard to the potential merits of such an application, even though one had not been brought. He was of the view that it was plain and obvious that such an application would not succeed and proceeded to grant the order sought by the Director to terminate access.

[105]   I do not consider the comments of Judge Daneliuk with regard to referring the parties to the JCM's office to set a hearing before the judge to determine process to be significant. First, Judge Daneliuk was simply referring the matter to the judge because he was seized. She was not interposing on the process that the judge might follow. Second, she also stated that the parties were to go before the judge and, “in the interim, counsel can discuss, hopefully before you get in front of Judge Koturbash, what you think it ought to look like.”

[106]   Counsel for the Director, who was also counsel at the hearing, acknowledged at the hearing of the appeal that he could understand that counsel for the appellants might have been surprised that he launched into his submissions at the beginning of the Access Order Hearing.

[107]   I accept counsel for the Ministry’s acknowledgement that he was anxious to proceed with the application because—after years with this matter before the court and the resulting uncertainty—a suitable home had finally been found for the Children.

[108]   When the Director’s application to terminate access went before the judge, he would not have known that any of the parties was contemplating a hearing solely to determine process. None of the parties took issue with the matter proceeding as it did. No party sought more time or an opportunity to respond or to provide evidence. Neither of the appellants indicated that they needed time to review Ms. Marin's affidavit. Neither appellant requested an adjournment, either through counsel or directly. There was no suggestion that more time was required or that some important evidence was missing. Rather, the matter simply proceeded.

[109]   Had either appellant expressed any concerns with regard to process at the Access Order Hearing, one might expect that a very brief adjournment would have been granted. In the absence of a request to adjourn, it was reasonable for the judge to proceed to adjudicate the Director’s application, which application had been filed several weeks before.

[110]   Although the appellants were unsuccessful in resisting the Ministry’s application to terminate their access, it does not necessarily follow that the termination is permanent or irreversible. First, if the adoption proceeds, Ms. Marin states the following in her affidavit:

[111]   As such, once the children have settled with their new family, it appears to be contemplated that the appellants will once again be afforded the opportunity to renew their relationship with the children.

[112]   Conversely, since the only reason to terminate the appellants’ access related to the pending adoption—it being the material change of circumstances required by s. 57(3) of the CFCSA—if the proposed adoption does not proceed as contemplated, there would seem to be no reason why the appellants’ access would not resume as previously.

[113]   The appeal is dismissed.