K.B. et al. v. Nova Scotia (Minister of Community Services), (2013) 328 N.S.R.(2d) 123 (CA)

• Judge: Saunders, Fichaud and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: March 06, 2013
• Jurisdiction: Nova Scotia
• Citations: (2013), 328 N.S.R.(2d) 123 (CA);2013 NSCA 32

K.B. v. N.S. (2013), 328 N.S.R.(2d) 123 (CA);

    1039 A.P.R. 123

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. MR.018

K.B. and B.C. (appellants) v. Minister of Community Services (respondent)

(CA 408482; 2013 NSCA 32)

Indexed As: K.B. et al. v. Nova Scotia (Minister of Community Services)

Nova Scotia Court of Appeal

Saunders, Fichaud and Bryson, JJ.A.

March 6, 2013.

Summary:

The Minister took three month old twins into temporary care because they were in need of protection as both parents were addicted to alcohol and drugs. The mother had been diagnosed with a borderline personality disorder. The father, who was physically abusive, no longer lived with the mother. After the apprehension, both parents abstained from drugs and alcohol and undertook counselling and other support services. The Minister applied for, and was granted, a Permanent Care and Custody Order. Notwithstanding the laudable progress made by the parents, the children remained in need of protection. There was a history of progress followed by relapses, and the mother's borderline personality disorder was resistant to treatment and led to a chaotic lifestyle. The substantial risk to the children remained. The father's assessed parenting capacity did not support giving him custody. The parents appealed and applied to introduce fresh evidence.

The Nova Scotia Court of Appeal admitted the fresh evidence respecting the progress that parents had made and a challenge to the borderline personality disorder diagnosis, but dismissed the appeal. The trial judge committed no palpable and overriding error in assessing the facts, particularly that the children remained at risk notwithstanding the progress made by the parents to deal with their addiction issues.

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 816

Public trustee or guardian - Appointment - Permanent appointment - The Minister took into temporary care three month old twin children because the drug and alcohol addictions of the parents placed the children at substantial risk of physical and emotional harm - The mother no longer lived with the physically abusive father - After the apprehension, both parents abstained from drugs and alcohol and undertook counselling and other support services - The Minister applied for, and was granted, a Permanent Care and Custody Order - Notwithstanding the laudable progress made by the parents, the children remained in need of protection - There was a history of progress followed by relapses, and the mother's borderline personality disorder was resistant to treatment and led to a chaotic lifestyle - The substantial risk to the children remained - The father's assessed parenting capacity did not support giving him custody - The Nova Scotia Court of Appeal dismissed the appeal, stating that "the trial judge did not err in law by failing to turn his attention to the children's ongoing need for protective services. He made that finding. He made no palpable and overriding error in his assessment of the facts. In particular, despite their commendable progress, the judge did not make a palpable and overriding error in deciding that the risks to the twins had not been mitigated sufficiently so as to accommodate custody by [the mother or father]." - See paragraphs 21 to 62.

Guardian and Ward - Topic 945

Public trustee or guardian - Appeals to courts (incl. judicial review) - Admission of "new evidence" - The Minister obtained an order for permanent care and custody of twin children, who had been taken into temporary care one year earlier when they were three months of age - The parents appealed and applied to adduce fresh evidence on the appeal - The evidence concerned the progress the parents had made in dealing with their addictions to alcohol and drugs and a challenge to the diagnosis that the mother had a borderline personality disorder - The Nova Scotia Court of Appeal held that "the wide latitude afforded this court under s. 49 [of the Children and Family Services Act] and the case law suggest that the 'fresh evidence' should be admitted and considered by us to the extent that it gives us more recent information that might affect the court's assessment of the best interests of the twins." - See paragraph 20.

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 18].

Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165; 165 N.R. 161; 71 O.A.C. 81, refd to. [para. 18].

Children's Aid Society of Cape Breton v. S.G. (1995), 142 N.S.R.(2d) 57; 407 A.P.R. 57 (C.A.), refd to. [para. 18].

Children's Aid Society of Cape Breton v. L.M. and B.M. (1998), 169 N.S.R.(2d) 1; 508 A.P.R. 1 (C.A.), refd to. [para. 18].

Children's Aid Society of Cape Breton-Victoria v. A.L.F. (2003), 220 N.S.R.(2d) 24; 694 A.P.R. 24; 2004 NSCA 2, refd to. [para. 18].

Nova Scotia (Minister of Community Services) v. B.L.C. (2007), 254 N.S.R.(2d) 52; 810 A.P.R. 52; 2007 NSCA 5, refd to. [para. 22].

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. 25].

Nova Scotia (Minister of Community Services) v. D.W.S. (1996), 168 N.S.R. (2d) 27; 505 A.P.R. 27 (Fam. Ct.), refd to. [para. 25].

Nova Scotia (Minister of Community Services) v. F.A., [1996] N.S.J. No. 447 (Fam. Ct.), refd to. [para. 25].

Nova Scotia (Minister of Community Services) v. A.S., [2007] N.S.R.(2d) Uned. 98; 2007 NSCA 82, refd to. [para. 25].

Awalt v. Blanchard (2013), 326 N.S.R.(2d) 189; 1033 A.P.R. 189; 2013 NSCA 11, refd to. [para. 32].

S.R. v. Nova Scotia (Minister of Community Services) (2012), 317 N.S.R.(2d) 73; 1003 A.P.R. 73; 2012 NSCA 46, refd to. [para. 33].

Nova Scotia (Minister of Community Services) v. R.F. et al., [2012] N.S.R.(2d) Uned. 86; 2012 NSSC 125, refd to. [para. 49].

Family and Children's Services of Kings County v. B.D. (1999), 177 N.S.R.(2d) 169; 542 A.P.R. 169 (C.A.), refd to. [para. 52].

Counsel:

David Grant, for the appellant, K.B.;

B.C., self-represented;

Peter C. McVey, for the respondent.

This appeal was heard on February 15, 2013, at Halifax, N.S., before Saunders, Fichaud and Bryson, JJ.A., of the Nova Scotia Court of Appeal.

On March 6, 2013, Bryson, J.A., delivered the following judgment for the Court of Appeal.