M.O. v. N.S., (2015) 357 N.S.R.(2d) 189 (CA)

Judge:Hamilton, Scanlan and Bourgeois, JJ.A.
Court:Nova Scotia Court of Appeal
Case Date:February 11, 2015
Jurisdiction:Nova Scotia
Citations:(2015), 357 N.S.R.(2d) 189 (CA);2015 NSCA 26
 
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M.O. v. N.S. (2015), 357 N.S.R.(2d) 189 (CA);

    1127 A.P.R. 189

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Temp. Cite: [2015] N.S.R.(2d) TBEd. MR.024

M.O. (appellant) v. Minister of Community Services, C.D., C.H. and K.H. (respondents)

(CA 432344; 2015 NSCA 26)

Indexed As: M.O. v. Nova Scotia (Minister of Community Services) et al.

Nova Scotia Court of Appeal

Hamilton, Scanlan and Bourgeois, JJ.A.

March 11, 2015.

Summary:

Two children were removed from the care of their mother in 2002. They were placed in the permanent care and custody of the Minister of Community Services in 2005. The mother was awarded continued supervised access, which she exercised regularly. In 2014, the Minister applied to terminate access as the children's long term foster parents wanted to adopt them. The mother, represented by legal counsel, indicated her consent to the order. The court granted the order, varying the permanent care order to remove access. The mother 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 815.8

Public trustee or guardian - Appointment - Child in need of protection - Notice to child - [See Guardian and Ward - Topic 964 ].

Guardian and Ward - Topic 825.3

Public trustee or guardian - Appointment - Access - Two children were removed from the care of their mother in 2002 - They were placed in the permanent care and custody of the Minister of Community Services in 2005 - The mother was awarded continued supervised access, which she exercised regularly - In 2014, the Minister applied to terminate access as the children's long term foster parents wanted to adopt them - The mother, represented by legal counsel, indicated her consent to the order - The court granted the order, varying the permanent care order to remove access - The mother appealed, asserting that the Family Court judge erred by failing to confirm her consent directly with her pursuant to s. 41(4) of the Children and Family Services Act - The Nova Scotia Court of Appeal dismissed the appeal - By its reference to s. 42, s. 41(4) was clearly intended to apply when an order was being made at the conclusion of a disposition hearing - There was no indication that the same statutory duty was intended to apply at other hearings contemplated within the legislation, including those brought under s. 48 - The Family Court judge had no statutory obligation to make an inquiry as to the nature of the mother's consent, and as such, his failure to do so could not be seen as a reason for appellate intervention - See paragraphs 25 to 27.

Guardian and Ward - Topic 904

Public trustee or guardian - The hearing - Representation -Two children were removed from the care of their mother in 2002 - They were placed in the permanent care and custody of the Minister of Community Services in 2005 - The mother was awarded continued supervised access, which she exercised regularly - In 2014, the Minister applied to terminate access as the children's long term foster parents wanted to adopt them - The mother, represented by legal counsel, indicated her consent to the order - The court granted the order, varying the permanent care order to remove access - The mother appealed, asserting that her consent was vitiated due to the ineffective representation of her counsel - The Nova Scotia Court of Appeal dismissed the appeal - The counsel's representation of the mother was "a far cry from ineffective" - It recognized the factual realities of the mother's circumstances, that of the children, as well as the status of the law - Access following permanent care was the exception, rather than the rule, and would not be ordered should it interfere with adoption - Undoubtedly the mother did not like the advice she received, but that did not render it ineffective - To the contrary, the approach suggested by her counsel kept open the possibility of contact in some form with the children, something which might have evaporated following an unsuccessful challenge by the mother - In the circumstances of this case, it was prudent advice and the mother's acceptance of it did not give rise to a miscarriage of justice - See paragraphs 17 to 24.

Guardian and Ward - Topic 964

Public trustee or guardian - Practice - Service or notice - Two children were removed from the care of their mother in 2002 - They were placed in the permanent care and custody of the Minister of Community Services in 2005 - The mother was awarded continued supervised access, which she exercised regularly - In 2014, the Minister applied to terminate access as the children's long term foster parents wanted to adopt them - The mother, represented by legal counsel, indicated her consent to the order - The court granted the order, varying the permanent care order to remove access - The mother appealed, raising a number of irregularities, including, inter alia, that (1) one judge made the order in court, yet another issued it; (2) the paternal grandparents were not given notice of the application; (3) the father was not given notice of the application; (4) the mother was not provided with the Minister's complete files in relation to the children; and (5) the children were not provided with notice of the Minister's application - The Nova Scotia Court of Appeal dismissed the appeal - All but one (5) were entirely without substance and would not, individually or collectively, justify appellate intervention - With respect to notice to the children, the court was satisfied from the record and the evidence that the children had notice of the Minister's application to terminate access and understood the consequences of that in terms of access with the mother - The outcome was overwhelmingly in their best interests - It was important to emphasize, however, that the practice followed here should not be repeated - It was incumbent on counsel and the court to explicitly address the issue of notice on all persons entitled to it, including children, both on the record and within the orders which issue - See paragraphs 28 to 43.

Cases Noticed:

Mi'kmaw Family and Children's Services v. H.O. et al. (2013), 338 N.S.R.(2d) 192; 1071 A.P.R. 192; 2013 NSCA 141, refd to. [para. 16].

M.W. v. Nova Scotia (Minister of Community Services) (2014), 353 N.S.R.(2d) 106; 1115 A.P.R. 106; 2014 NSCA 103, refd to. [para. 18].

Nouveau-Brunswick (Ministre de la Santé et des Services communautaires) v. M.L. et R.L., [1998] 2 S.C.R. 534; 230 N.R. 201; 204 N.B.R.(2d) 1; 520 A.P.R. 1, refd to. [para. 23].

P.H. v. Nova Scotia (Minister of Community Services) et al. (2013), 332 N.S.R.(2d) 134; 1052 A.P.R. 134; 2013 NSCA 83, refd to. [para. 23].

Family and Children's Services of Lunenburg County v. G.D. (1997), 160 N.S.R.(2d) 270; 473 A.P.R. 270 (C.A.), dist. [para. 26].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 40].

T.G. v. Nova Scotia (Minister of Community Services) et al. (2012), 316 N.S.R.(2d) 202; 1002 A.P.R. 202; 2012 NSCA 43, leave to appeal denied (2012), 439 N.R. 392 (S.C.C.), refd to. [para. 40].

Counsel:

Ms. Watson, representative for the appellant;

Peter C. McVey, Q.C., for the respondent.

This appeal was heard at Halifax, N.S., on February 11, 2015, by Hamilton, Scanlan and Bourgeois, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Bourgeois, J.A., on March 11, 2015.

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