J.C. and A.C. v. Children's Aid Society of Cape Breton-Victoria, 2005 NSCA 161

• Judge: Cromwell, Saunders and Oland, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 23, 2005
• Jurisdiction: Nova Scotia
• Citations: 2005 NSCA 161;(2005), 239 N.S.R.(2d) 132 (CA)

J.C. v. CAS (2005), 239 N.S.R.(2d) 132 (CA);

    760 A.P.R. 132

MLB headnote and full text

Temp. Cite: [2005] N.S.R.(2d) TBEd. DE.014

J.C. and A.C. (appellants) v. Children's Aid Society of Cape Breton-Victoria (respondent)

(CA 251964; 2005 NSCA 161)

Indexed As: J.C. and A.C. v. Children's Aid Society of Cape Breton-Victoria

Nova Scotia Court of Appeal

Cromwell, Saunders and Oland, JJ.A.

December 13, 2005.

Summary:

The Children's Aid Society of Cape Breton-Victoria sought permanent care and custody of two children.

The Nova Scotia Supreme Court, Family Division, in a decision not reported in this series of reports, granted orders of permanent care and custody. The court also ordered that after an “appropriate weaning-off process” the parents were to be denied access. Adoption of the children was to be pursued. The parents appealed.

The Nova Scotia Court of Appeal dismissed 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.

Guardian and Ward - Topic 815

Public trustee or guardian - Appointment - Child or adult in need of protection - Considerations - Best interests of child - Parents appealed an order placing their three year old daughter and infant son in the permanent care and custody of the Children’s Aid Society - The order provided that after an “appropriate weaning-off process” the parents were to be denied access and that adoption was to be pursued - The parents were developmentally delayed - Their significant cognitive deficits impaired their ability to understand and respond appropriately to the children’s emotional, intellectual, safety, health and developmental needs - The mother had an epileptic seizure disorder - The father was suspicious of other people - Their initial dependence on the Society, family and friends had developed into mistrust - They were socially isolated - Despite 2.5 years of intervention, they had not developed insight into nor overcome their inability to nurture and care for the children - Their daughter’s development was delayed but had shown a marked improvement after being removed from their home - They would not deliberately harm the children or place them at risk - The Nova Scotia Court of Appeal dismissed the appeal - The best interest of the children trumped the parents’ wishes and interests - See paragraphs 37 to 70.

Guardian and Ward - Topic 816

Public trustee or guardian - Appointment - Child or adult in need of protection - Permanent appointment - [See Guardian and Ward - Topic 815 ].

Guardian and Ward - Topic 823

Public trustee or guardian - Appointment - Appeals - Parents appealed a permanent care and custody order - The Nova Scotia Court of Appeal stated that “This is not the forum where the parties should expect to have their case tried over again. Our role is limited and much different. We review for error. We may only interfere with the decision of a trial judge if he or she erred in law or made a material error in determining the facts. Apprehension cases leading to permanent care and custody orders are inherently exercises in discretion. Such discretion vested in the trial judge permits a balanced evaluation. The principal determination to be made in custody cases is the best interests of the child. We are not in a position to say what we might consider to be the proper result from the evidence. That is the job of the trial judge. It is not our role to undertake our own assessment of the evidence, or second guess the exercise of a trial judge's discretion, or move to substitute our own discretion for that of the judge in first instance. The special advantages a trial judge has in hearing the parties and their witnesses directly, and being able to appreciate the special circumstances or nuances that may arise when applying the relevant statutory considerations, imparts a high level of deference to a trial judge's decision in child custody cases. Because of its fact-based and discretionary nature, trial judges are afforded considerable deference by appellate courts when their custody decisions are under review. ... Absent error in law or palpable and overriding error of fact we must not intervene.” - See paragraph 34.

Guardian and Ward - Topic 908

Public trustee or guardian - The hearing - Reasons for decision - Parents appealed a permanent care and custody order - The Nova Scotia Court of Appeal dismissed the appeal - Saunders, J.A., commented on the adequacy of the trial judge’s reasons for judgment and set out a systematic approach to organizing and articulating reasons for judgment - Saunders, J.A., stated that the Children and Family Services Act was especially well suited for such an approach - See paragraphs 76 to 87 - Cromwell and Oland, JJ.A., were of the view that it was not necessary or desirable to address these matters where they had not been raised as grounds of appeal or argued before the court and they had no bearing on the appeal’s disposition - See paragraph 91.

Cases Noticed:

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 143 C.C.C.(3d) 289, refd to. [para. 30].

R. v. Missions (W.D.) (2005), 232 N.S.R.(2d) 329; 737 A.P.R. 329 (C.A.), refd to. [para. 30].

Mallett and Mallett v. Alberta (Administrator of Motor Vehicle Accident Claims Act) et al. - see Foley v. Administrator, Motor Vehicle Accident Claims Act (Alta.) et al.

Foley v. Administrator, Motor Vehicle Accident Claims Act (Alta.) et al. (2002), 330 A.R. 1; 299 W.A.C. 1; 2002 ABCA 297, refd to. [para. 30].

Director of Child, Family and Community Services (B.C.) v. D.B. (2002), 166 B.C.A.C. 167; 271 W.A.C. 167; 99 B.C.L.R.(3d) 231; 2002 BCCA 55, refd to. [para. 30].

Hallatt v. Minister of National Revenue, [2004] N.R. Uned. 56 (F.C.A.), refd to. [para. 30].

D.W. v. White et al. (2004), 189 O.A.C. 256 (C.A.), leave to appeal refused (2005), 339 N.R. 400 (S.C.C.), refd to. [para. 30].

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241, refd to. [para. 34].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 34].

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161, refd to. [para. 34].

T.B. v. Children's Aid Society of Halifax et al. (2001), 194 N.S.R.(2d) 149; 606 A.P.R. 149; 2001 NSCA 99, refd to. [para. 34].

Nova Scotia (Minister of Community Services) v. J.G.B. et al. (2002), 206 N.S.R.(2d) 3; 645 A.P.R. 3; 2002 NSCA 86, refd to. [para. 34].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 34].

Hendrickson v. Hendrickson (2005), 232 N.S.R.(2d) 131; 737 A.P.R. 131; 2005 NSCA 67, refd to. [para. 34].

Nova Scotia (Minister of Community Services) v. K.A.B.S., [1999] N.S.R.(2d) Uned. 32 (C.A.), refd to. [para. 70].

Children's Aid Society of Halifax v. T.A. and C.S., [2004] N.S.R.(2d) Uned. 49 (S.C.), refd to. [para. 70].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50, refd to. [para. 80].

R. v. Braich (A.) et al., [2002] 1 S.C.R. 903; 285 N.R. 162; 164 B.C.A.C. 1; 268 W.A.C. 1; 2002 SCC 27, refd to. [para. 87].

Counsel:

Mary Frances Roach MacDonald, for the appellants;

Robert M. Crosby, Q.C., for the respondent.

This appeal was heard on November 23, 2005, at Halifax, Nova Scotia, by Cromwell, Saunders and Oland, JJ.A., of the Nova Scotia Court of Appeal. The decision of the court was delivered on December 13, 2005, with the following opinions:

Saunders, J.A. - see paragraphs 1 to 90;

Cromwell, J.A. (Oland, J.A., concurring) - see paragraph 91.