C.L. et al. v. Nova Scotia (Minister of Community Services), (2012) 320 N.S.R.(2d) 199 (CA)

• Judge: Farrar, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: August 16, 2012
• Jurisdiction: Nova Scotia
• Citations: (2012), 320 N.S.R.(2d) 199 (CA);2012 NSCA 88

C.L. v. N.S. (2012), 320 N.S.R.(2d) 199 (CA);

    1014 A.P.R. 199

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. AU.031

C.L. and S.S. (respondents/appellants) v. Minister of Community Services (applicant/respondent)

(CA 398039; 2012 NSCA 88)

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

Nova Scotia Court of Appeal

Farrar, J.A.

August 21, 2012.

Summary:

During the trial for permanent care and custody of the parents' three children, the parents moved to raise a Charter issue. The judge dismissed the motion on February 7, 2012. Orders for the permanent care and custody of the children were issued on May 7, 2012. On June 12, 2012, the parents appealed. One of the grounds of appeal was that the trial judge had erred in dismissing the Charter motion. The Minister of Community Services moved for an order striking this ground of appeal as out of time.

The Nova Scotia Court of Appeal, per Farrar, J.A., referred the Minister's motion to the panel hearing the appeal.

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.

Courts - Topic 2110

Jurisdiction - Appellate jurisdiction - Single appellate judge - During the trial for permanent care and custody of the parents' three children, the parents moved to raise a Charter issue - The judge dismissed the motion on February 7, 2012 - Orders for the permanent care and custody of the children were issued on May 7, 2012 - On June 12, 2012, the parents appealed - One of the grounds of appeal was that the trial judge had erred in dismissing the Charter motion - The Minister of Community Services moved for an order striking this ground of appeal as out of time - The Minister asserted that the trial judge's order dismissing the Charter motion was an interlocutory order and that an appeal had to be filed within 10 days of the date of the order - The parents asserted that the trial judge had made an order akin to an evidentiary or Charter ruling in a criminal trial with the result that no interlocutory appeal was ever available - The Nova Scotia Court of Appeal, per Farrar, J.A., referred the Minister's motion to the panel hearing the appeal - A single judge in Chambers had only such authority as was explicitly or implicitly granted in the legislation or the Rules - In order to grant the relief sought by the Minister, the court would have to accept his characterization of the order as interlocutory - This was hotly contested - There was a danger that arguments on such a contested issue would raise issues relating to the merits of the appeal as a whole - Given the fundamental differences between the parties, the motion was best left to the panel to hear and decide.

Cases Noticed:

Children and Family Services of Colchester County v. K.T. (2010), 294 N.S.R.(2d) 379; 933 A.P.R. 379; 2010 NSCA 72, refd to. [para. 3].

Future Inns Canada Inc. v. Labour Relations Board (N.S.) et al. (1996), 154 N.S.R.(2d) 358; 452 A.P.R. 358 (C.A.), refd to. [para. 9].

R. v. West (W.F.) (2009), 279 N.S.R.(2d) 241; 887 A.P.R. 241; 2009 NSCA 63, refd to. [para. 10].

A.B. v. Bragg Communications Inc. et al. (2011), 302 N.S.R.(2d) 314; 955 A.P.R. 314; 2011 NSCA 38, refd to. [para. 10].

Chesal v. Nova Scotia (Attorney General) et al. (2003), 217 N.S.R.(2d) 128; 683 A.P.R. 128; 2003 NSCA 86, refd to. [para. 12].

Counsel:

Lisa Bevin, for the appellant, S.S.;

Stephanie Hillson, for the appellant, C.L., not appearing;

Peter McVey, for the respondent.

This motion was heard in Chambers, at Halifax, Nova Scotia, on August 16, 2012, by Farrar, J.A., of the Nova Scotia Court of Appeal, who delivered the following decision on August 21, 2012.