Director of Child and Family Services (Nunavut) v. J.A. et al., (2012) 539 A.R. 50

Judge:Côté, Rowbotham and O'Ferrall, JJ.A.
Court:Court of Appeal of Nunavaut
Case Date:September 25, 2012
Jurisdiction:Nunavut
Citations:(2012), 539 A.R. 50;2012 NUCA 7
 
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CFS v. J.A. (2012), 539 A.R. 50; 561 W.A.C. 50 (NUCA)

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Temp. Cite: [2012] A.R. TBEd. NO.087

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

(17-12-02 CAC; 2012 NUCA 7)

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

Nunavut Court of Appeal

Côté, Rowbotham and O'Ferrall, JJ.A.

November 15, 2012.

Summary:

The Director of Child and Family Services apprehended the respondents' three-year-old son. After a confirmation hearing, the reviewing judge did not confirm the apprehension and directed that the child be returned to the parents. The Director appealed, arguing that the reviewing judge misapprehended the evidentiary burden on the Director at the apprehension confirmation hearing.

The Nunavut Court of Appeal, per Schuler, J.A., in a decision reported at 522 A.R. 391; 544 W.A.C. 391, granted a stay of the decision pending appeal.

The Nunavut Court of Appeal allowed the appeal. The court held that the reviewing judge erred in his application of the burden of proof on the Director under s. 26(1) of the Child and Family Services Act. The apprehension of the child was confirmed. The child would be placed in the interim custody of the Director pending a hearing under s. 27 of the Act

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 819

Public trustee or guardian - Appointment - Child or adult in need of protection - Evidence - [See Guardian and Ward - Topic 881 ].

Guardian and Ward - Topic 881

Public trustee or guardian - Evidence and proof - General - On May 17, 2011, the Director of Child and Family Services apprehended the respondents' three-year-old son - After a confirmation hearing on January 17, 2012, the reviewing judge did not confirm the apprehension and directed that the child be returned to the parents - The Director appealed, arguing that the reviewing judge misapprehended the evidentiary burden on the Director at the apprehension confirmation hearing - The Nunavut Court of Appeal allowed the appeal - The reviewing judge erred in his application of the burden of proof on the Director under s. 26(1) of the Child and Family Services Act - The reviewing judge had commented that Justices of the Peace hearing initial applications to confirm an apprehension would normally have much less information before them than existed in this case - He concluded that because he had more information, he could weigh that evidence to reach the conclusion that the Director had not met its burden - By so doing, he erred in concluding that the Director had not met the low threshold required at the stage of the s. 26(1) initial confirmation hearing - He turned the initial hearing contemplated by s. 26(1) into the full child protection hearing contemplated by s. 27 of the Act - The Director's testimony describing the evidence of the child protection workers and the physicians who had examined the child was more than adequate to establish that there was some evidence that, if believed, could lead the court to find that the child was in need of protection - Although that evidence was hearsay, the medical evidence satisfied the threshold burden on the Director - That evidence could be challenged at the more fulsome hearing contemplated by s. 27.

Cases Noticed:

S.F. et al., Re (2009), 343 Sask.R. 112; 472 W.A.C. 112; 2009 SKCA 121, refd to. [para. 21].

Child and Family Services of Winnipeg Central v. K.L.W. et al., [2000] 2 S.C.R. 519; 260 N.R. 203; 150 Man.R.(2d) 161; 230 W.A.C. 161; 2000 SCC 48, refd to. [para. 23].

P.E. v. Director of Child and Family Services (Nunavut), [2010] Nunavut Cases Uned. 24; 2010 NUCJ 24, refd to. [para. 23].

K.M.T. v. J.D.T. (1999), 87 A.C.W.S.(3d) 498 (Prov. Ct.), refd to. [para. 26].

Director of Child Welfare (P.E.I.) v. D.M. and T.M. (1998), 163 Nfld. & P.E.I.R. 36; 503 A.P.R. 36 (P.E.I.T.D.), refd to. [para. 26].

Nova Scotia (Minister of Community Services) v. A.M. et al., [2010] N.S.R.(2d) Uned. 144; 2010 NSSC 227, refd to. [para. 26].

Family and Children's Services of Kings County v. Y.B. and J.T. (2000), 181 N.S.R.(2d) 178; 560 A.P.R. 178 (Fam. Ct.), refd to. [para. 26].

British Columbia (Director of Family and Child Services) v. W.H.K., [2003] B.C.J. No. 1982 (Prov. Ct.), refd to. [para. 27].

Statutes Noticed:

Child and Family Services Act, S.N.W.T. 1997, c. 13, sect. 24, sect. 26(1), sect. 26(3), sect. 26.1, sect. 27 [para. 24].

Counsel:

S. MacPherson, for the appellant;

J. Squire, for the respondent, J.A.;

J. Squire, as agent for Andrea Smart.

This appeal was heard on September 25, 2012, before Côté, Rowbotham and O'Ferrall, JJ.A., of the Nunavut Court of Appeal. The Court of Appeal delivered the following memorandum of judgment on November 15, 2012.

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