C.C. v. N.S., 2015 NSCA 67

Judge:Scanlan, Bourgeois and Van den Eynden, JJ.A.
Court:Nova Scotia Court of Appeal
Case Date:July 07, 2015
Jurisdiction:Nova Scotia
Citations:2015 NSCA 67;(2015), 363 N.S.R.(2d) 94 (CA)
 
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C.C. v. N.S. (2015), 363 N.S.R.(2d) 94 (CA);

    1143 A.P.R. 94

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Temp. Cite: [2015] N.S.R.(2d) TBEd. JL.017

C.C. and G.C. (appellants) v. Minister of Community Services (respondent)

(CA 436477; 2015 NSCA 67)

Indexed As: C.C. et al. v. Nova Scotia (Minister of Community Services)

Nova Scotia Court of Appeal

Scanlan, Bourgeois and Van den Eynden, JJ.A.

July 7, 2015.

Summary:

At a disposition hearing, the parents of a 10 month old girl consented through counsel to a permanent care and custody order in favour of the Minister. The parents subsequently appealed and sought to introduce fresh evidence to establish that the mother's consent was invalid due to the ineffective assistance by counsel. The parents both argued that the judge failed to directly confirm with them that their consent was informed and voluntary, as required by s. 41(4)(c) of the Children and Family Services Act.

The Nova Scotia Court of Appeal dismissed the appeal. The mother was given prudent advice by counsel. There was no ineffective representation. Although the judge failed to comply with s. 41(4)(c), there was no reversible error where the evidence was clear that the parents freely and voluntarily consented to the permanent custody and care order with knowledge of its consequences.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Guardian and Ward - Topic 816

Public trustee or guardian - Appointment - Child in need of protection - Permanent appointment - [See Guardian and Ward - Topic 817.4 ].

Guardian and Ward - Topic 817.4

Public trustee or guardian - Appointment - Child in need of protection - Consent to permanent care order - At a January 2015 disposition hearing, the parents of a 10 month old girl consented through counsel to a permanent care and custody order in favour of the Minister - The girl had been apprehended at birth under s. 22(2)(d) of the Children and Family Services Act (need of protective services due to substantial risk of sexual abuse) - The parents argued that the judge failed to directly confirm with them that their consent was informed and voluntary, as required by s. 41(4)(c) of the Children and Family Services Act - The Nova Scotia Court of Appeal held that although the judge failed to comply with s. 41(4)(c), there was no reversible error where the evidence was clear that the parents freely and voluntarily consented to the permanent custody and care order with knowledge of its consequences - The court stated that s. 414(4)(c) was "intended to protect the interests of parties who, through misunderstanding, coercion or otherwise may not be validly consenting to a permanent care order. This provision should not be used as a means for those who clearly gave valid consent, to later reconsider and rescind that decision" - See paragraphs 52 to 59.

Practice - Topic 9230

Appeals - New trials - Lack of or incompetence of counsel at trial - At a January 2015 disposition hearing, the parents of a 10 month old girl consented through counsel to a permanent care and custody order in favour of the Minister - The girl had been apprehended at birth under s. 22(2)(d) of the Children and Family Services Act (need of protective services due to substantial risk of sexual abuse) - The parents consented to a permanent care and custody order for another child in February 2014 due to the risk of sexual abuse by the father, who had a history of such allegations involving young children - The mother chose to remain with the father, disbelieving the allegations and refusing to take steps to protect the child from unsupervised contact with the father - The parents subsequently appealed and sought to introduce fresh evidence to establish that the mother's consent was invalid due to the ineffective assistance by counsel - The mother alleged that counsel failed to follow her instructions to proceed to a contested disposition hearing - The Nova Scotia Court of Appeal dismissed the appeal - Counsel provided prudent advice - There was no ineffective representation - The evidence established that counsel clearly explained the consequences of consenting to a permanent care of custody order and that counsel conveyed that consent to the court on the mother's instructions - The advice offered to the mother was not only reasonable, it was the only realistic means (at the time it was given) of the mother maintaining any chance of regaining custody - The loss of custody was solely due to the mother's failure to follow prudent advice given by counsel to separate from the father - See paragraphs 27 to 51.

Cases Noticed:

Mi'kmaw Family and Children's Services v. H.O. et al. (2013), 338 N.S.R.(2d) 192; 1071 A.P.R. 192; 2013 NSCA 141, refd to. [para. 25].

M.W. v. Nova Scotia (Minister of Community Services) (2014), 353 N.S.R.(2d) 106; 1115 A.P.R. 106; 2014 NSCA 103, refd to. [para. 28].

M.O. v. N.S. (2015), 357 N.S.R.(2d) 189; 1127 A.P.R. 189; 2015 NSCA 26, refd to. [para. 28].

R. v. West (W.F.) (2010), 288 N.S.R.(2d) 293; 914 A.P.R. 293; 2010 NSCA 16, refd to. [para. 28].

Statutes Noticed:

Children and Family Services Act, S.N.S. 1990, c. 5, sect. 41(4) [para. 53].

Counsel:

Cheryl Watson, representative for the appellants;

Peter C. McVey, Q.C., and Patricia A. McFadgen, for the respondent.

This appeal was heard on June 19, 2015, at Halifax, N.S., before Scanlan, Bourgeois and Van den Eynden, JJ.A., of the Nova Scotia Court of Appeal.

On July 7, 2015, Bourgeois, J.A., delivered the following judgment for the Court.

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