Grace v. Halifax (Regional Municipality), (2013) 325 N.S.R.(2d) 294 (SC)

• Jurisdiction: Nova Scotia
• Judge: Smith
• Neutral Citation: 2013 NSSC 15
• Citation: (2013), 325 N.S.R.(2d) 294 (SC),2013 NSSC 15,325 NSR(2d) 294,(2013), 325 NSR(2d) 294 (SC),325 N.S.R.(2d) 294
• Subject Matter: INFANTS,GUARDIAN AND WARD,PRACTICE
• Date: 19 November 2012
• Court: Supreme Court of Nova Scotia (Canada)

Grace v. Halifax (2013), 325 N.S.R.(2d) 294 (SC);

    1031 A.P.R. 294

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. JA.036

Evan Parker Grace, by his litigation guardian Robert Grace (plaintiff) v. Shelly Yates (defendant) and Halifax Regional Municipality, a body corporate, incorporated pursuant to the Municipal Government Act (third party)

(Hfx. No. 210564; 2013 NSSC 15)

Indexed As: Grace v. Halifax (Regional Municipality)

Nova Scotia Supreme Court

Smith, A.C.J.

January 11, 2013.

Summary:

In November 2002, a child (the plaintiff) was involved in an accident while travelling in a vehicle being driven by his mother (the defendant). The child allegedly suffered a brain injury as a result of the accident. In November 2003, the child's father commenced an action by the child against the mother. The father was named as litigation guardian. Nine years after the action was commenced, the mother's common-law spouse (Johnston) brought a motion to replace the father as litigation guardian.

The Nova Scotia Supreme Court dismissed the motion.

Guardian and Ward - Topic 217

Appointment and qualifications of guardian - Of children - Guardian ad litem - Appointment - While travelling in a vehicle being driven by his mother, a child was involved in a car accident and suffered a brain injury - The child's father commenced an action by the child against the mother - The father was named as litigation guardian - Nine years after the action began, the mother's common-law spouse (Johnston) brought a motion to replace the father as litigation guardian - The child lived with his mother and Johnston and had limited contact with his father - The Nova Scotia Supreme Court dismissed the motion - A litigation guardian had a duty to take all reasonable steps to further the interests of a child, and had a responsibility to secure the best possible result in the litigation - A litigation guardian had to be indifferent to the outcome of the proceeding - As the defendant's common-law spouse, Johnston would be in a conflict position in attempting to represent the child in the action against his mother - See paragraphs 25 to 33.

Guardian and Ward - Topic 217

Appointment and qualifications of guardian - Of children - Guardian ad litem - Appointment - [See Guardian and Ward - Topic 218 ].

Guardian and Ward - Topic 218

Appointment and qualifications of guardian - Of children - Guardian ad litem - Removal - While travelling in a vehicle being driven by his mother, a child was involved in a car accident and suffered a brain injury - The child's father commenced an action by the child against the mother - The father was named as litigation guardian - Nine years after the action began, the mother's common-law spouse (Johnston) brought a motion to replace the father as litigation guardian - The child lived with his mother and Johnston and had limited contact with his father - Johnston argued that it was in the child's best interests to have a litigation guardian who was familiar with him and his condition - The Nova Scotia Supreme Court dismissed the motion - The test for removal of a litigation guardian was based on the best interests of the child - The burden was on Johnston to prove that removal of the litigation guardian was in the child's best interests - There was no evidence to suggest that the father had not been acting in the best interests of the child - The litigation guardian was not required to have a close relationship with the child or an understanding of the child's condition - See paragraphs 12 to 14 and 34 to 36.

Infants - Topic 6086

Legal proceedings - Representation of infants - As guardian - [See first Guardian and Ward - Topic 217 and Guardian and Ward - Topic 218 ].

Practice - Topic 138

Persons who can sue and be sued - Infants - Litigation guardian - Appointment of - [See first Guardian and Ward - Topic 217 and Guardian and Ward - Topic 218 ].

Cases Noticed:

Gronnerud v. Gronnerud Estate (2002), 287 N.R. 1; 217 Sask.R. 161; 265 W.A.C. 161; 2002 SCC 38, folld. [para. 12].

Schwartz v. Ryan et al. (2000), 185 N.S.R.(2d) 122; 575 A.P.R. 122; 2000 NSCA 82, refd to. [para. 25].

McLellan v. Crowell (2000), 181 N.S.R.(2d) 350; 560 A.P.R. 350 (S.C.), refd to. [para. 26].

Fischer v. Balofsky, [2005] O.J. No. 2152 (Sup. Ct.), refd to. [para. 34].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 36.08 [para. 10].

Counsel:

Janus Siebrits on behalf of the applicant, Clifton James Johnston;

Colin D. Bryson, Q.C., on behalf of the respondent, Robert Grace.

This motion was heard in Halifax, N.S., on November 19, 2012, before Smith, A.C.J., of

the Nova Scotia Supreme Court, who delivered the following judgment on January 11, 2013.