Director of Child and Family Services (Nunavut) v. J.A. et al., 2012 NUCA 2

• Judge: Schuler, J.A.
• Court: Nunavut Court of Appeal (Canada)
• Case Date: March 06, 2012
• Jurisdiction: Nunavut
• Citations: 2012 NUCA 2;(2012), 522 A.R. 391

CFS v. J.A. (2012), 522 A.R. 391; 544 W.A.C. 391 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. MY.038

In The Matter Of the Child and Family Services Act, S.N.W.T. 1997, c. 34, as amended by Statutes enacted under section 76.05 of the Nunavut Act

And In The Matter Of the child R.N., born [xxx], 2008, apprehended: May 17, 2011

The Director of Child and Family Services (appellant) v. J.A. (mother) and J.N. (father)

(respondents)

(17-12-002-CAC; 2012 NUCA 2)

Indexed As: Director of Child and Family Services (Nunavut) v. J.A. et al.

Nunavut Court of Appeal

Schuler, J.A.

April 11, 2012.

Summary:

The Director of Child and Family Services for Nunavut applied for a stay pending appeal of an order made by a judge returning a child to his parents.

The Nunavut Court of Appeal, per Schuler, J.A., granted a stay.

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 946

Public trustee or guardian - Appeals to courts - Stay of proceedings pending appeal - The Director of Child and Family Services for Nunavut applied for a stay pending appeal of an order made by a judge returning a child to his parents - The Nunavut Court of Appeal, per Schuler, J.A., stated that "In proceedings affecting the welfare of children, the concept of irreparable harm focuses on the risk of irreparable harm to the child ... The applicant for a stay need not establish that the child will suffer irreparable harm if the stay is not granted, it is enough that on the evidence there is a reasonably perceivable risk that the child may suffer harm if the stay is not granted ... In this case, the Court must also be mindful of s. 2(a) of the [Child and Family Services] Act, which states that the paramount objective of the Act is to promote the bests interests, protection and well-being of children. This objective supports the principle that the factors of irreparable harm and balance of convenience must be viewed through the lens of the child's best interests in cases involving the custody of children" - See paragraphs 8 to 11.

Guardian and Ward - Topic 946

Public trustee or guardian - Appeals to courts - Stay of proceedings pending appeal - The Director of Child and Family Services for Nunavut applied for a stay pending appeal of an order made by a judge returning a child to his parents - The main ground of appeal was that the trial judge turned the s. 26(1) hearing (Child and Family Services Act) into a s. 27 full hearing on the merits - Counsel for the parents relied on comments in Children's Aid Society and Family Services of Colchester County v. T.M. (2006 NSCA), where it was said that a judge considering a stay application must give considerable deference to the trial judge's findings, and because of the need for stability and finality in child custody, generally there must be circumstances of a special and persuasive nature, usually connected to the risk of harm to the child, in order to persuade the court to grant a stay - The Nunavut Court of Appeal, per Schuler, J.A., stated that "Although that deference might be appropriate in a case where a trial judge had heard all the evidence in a full hearing, I am not persuaded that it is appropriate where, as here, the nature of the hearing is in question. The trial judge did not hear all the medical evidence upon which the Director had acted in ordering the apprehension of the child. Nor were the parents' assertions and explanations tested" - See paragraphs 24 to 25.

Guardian and Ward - Topic 946

Public trustee or guardian - Appeals to courts - Stay of proceedings pending appeal - The Director of Child and Family Services for Nunavut applied for a stay pending appeal of an order made by a judge returning a child to his parents - The main ground of appeal was that the trial judge turned the s. 26(1) hearing (Child and Family Services Act) into a s. 27 full hearing on the merits - The Nunavut Court of Appeal, per Schuler, J.A., granted a stay - There was a serious issue as to whether the hearing and the trial judge's assessment of the evidence went beyond what was contemplated under s. 26(1) of the Act - There was a perceivable risk of harm to the child if he was returned to his parents - There was therefore a risk of irreparable harm if a stay was not granted - The balance of convenience also favoured a stay - The risk of physical and emotional harm to the child should he be returned to the parents outweighed the risk of harm to the parent-child relationship from their separation - See paragraphs 12 to 43.

Guardian and Ward - Topic 946

Public trustee or guardian - Appeals to courts - Stay of proceedings pending appeal - The Director of Child and Family Services for Nunavut applied for a stay pending appeal of an order made by a judge returning a child to his parents - The Director applied to adduce fresh evidence on the stay application - The Nunavut Court of Appeal, per Schuler, J.A., stated that "On an appeal dealing with the welfare of a child, the judge has a discretion to hear further evidence relevant to the best interests of the child ... I would apply the same considerations on a stay application. Since the best interests of the child are the governing consideration, evidence relevant to those interests can be admitted depending on the circumstances. In this case, since the main issue is the scope of the hearing that took place and whether it went beyond what is appropriate for an initial hearing, a broad reading of the principles in Palmer is appropriate" - See paragraphs 30 to 32.

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes "irreparable harm" - [See third Guardian and Ward - Topic 946 ].

Practice - Topic 8958

Appeals - Stay of proceedings pending appeal - Balance of convenience and justice - [See third Guardian and Ward - Topic 946 ].

Cases Noticed:

D.D. v. Nova Scotia (Minister of Community Services) et al. (2003), 220 N.S.R.(2d) 42; 694 A.P.R. 42; 2003 NSCA 146, refd to. [para. 9].

Child and Family Services of Western Manitoba v. K.B. et al. (2006), 205 Man.R.(2d) 31; 375 W.A.C. 31; 2006 MBCA 48, refd to. [para. 10].

A.J., Re, [1996] B.C.J. No. 2786 (Prov. Ct.), refd to. [para. 15].

British Columbia (Director of Family and Child Services) v. W.H.K., [2003] B.C.J. No. 1982, refd to. [para. 16].

Children's Aid Society and Family Services of Colchester County v. T.M., [2006] N.S.R.(2d) Uned. 45; 2006 NSCA 61, refd to. [para. 24].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 30].

Children's Aid Society of Waterloo (Regional Municipality) v. L.B., [2006] O.T.C. 810; 2006 CanLII 32609 (Sup. Ct.), refd to. [para. 32].

Counsel:

Sheila M. MacPherson, for the Director of Child and Family Services;

Jack Squire, for the mother, J.A.;

Andrea Smart, for the father, J.N.

This application was heard on March 6, 2012, before Schuler, J.A., of the Nunavut Court of Appeal, who filed the following memorandum of judgment on April 11, 2012.