A.M. et al. v. Nova Scotia (Minister of Community Services), (2014) 352 N.S.R.(2d) 213 (CA)

• Judge: Beveridge, Farrar and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 08, 2014
• Jurisdiction: Nova Scotia
• Citations: (2014), 352 N.S.R.(2d) 213 (CA);2014 NSCA 97

A.M. v. N.S. (2014), 352 N.S.R.(2d) 213 (CA);

    1112 A.P.R. 213

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. OC.039

A.M. and J.W. (appellants) v. Minister of Community Services (respondent)

(CA 430111; 2014 NSCA 97)

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

Nova Scotia Court of Appeal

Beveridge, Farrar and Bryson, JJ.A.

October 24, 2014.

Summary:

The appellants' twin daughters were the subject of a permanent care order . The appellants applied under the Children and Family Services Act to terminate the order on the basis that there had been a change in circumstances. The Minister of Community Services moved for summary judgement dismissing the appellants' application. At the hearing, the appellants asserted that the judge was biased and should not hear the motion.

The Nova Scotia Supreme Court, in a decision reported at 347 N.S.R.(2d) 303; 1098 A.P.R. 303, rejected the bias argument and allowed the motion, granting summary judgment. The appellants 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.

Courts - Topic 689

Judges - Disqualification - Bias - Arising out of participation in prior proceedings - [See Courts - Topic 691 ].

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - The appellants' twin daughters were the subject of a permanent care order - The appellants applied under the Children and Family Services Act to terminate the order on the basis that there had been a change in circumstances - The Minister of Community Services moved for summary judgement dismissing the appellants' application - At the hearing, the appellants asserted that the judge was biased and should not hear the motion - The motion judge rejected the bias argument and allowed the motion, granting summary judgment - The appellants appealed - The Nova Scotia Court of Appeal dismissed the appeal - The motion judge had presided over a pretrial conference involving one of the appellants in another matter - She heard no evidence in that matter - The fact that the motion judge had presided over a pretrial fell far short of a reasonable apprehension of bias - An informed person, viewing this matter realistically and practically, would not conclude that the motions judge could not decide the matter fairly - See paragraphs 34 to 36.

Guardian and Ward - Topic 846

Public trustee or guardian - Termination of guardianship - Considerations -The appellants' (A.M. and J.W.) twin daughters were the subject of a permanent care order (PCO) - The appellants applied under the Children and Family Services Act to terminate the order on the basis that there had been a change in circumstances, i.e., that charges of sexual assault against J.W. involving a third party's child which were pending at the time the PCO was ordered had since been withdrawn - The Minister of Community Services moved for summary judgement dismissing the appellants' application - The motion judge allowed the motion, granting summary judgment - The appellants appealed - The Nova Scotia Court of Appeal dismissed the appeal - The sexual assault charges being withdrawn did not change the factual findings - What the appellants failed to appreciate was that the determination that the twins were in need of protection did not rest on J.W. having been charged with sexual assault - The judge considered a multitude of factors - The motions judge correctly stated and applied the test with respect to change of circumstances - She found that there was no change in circumstances that warranted setting aside the PCO - She did not commit any error - See paragraphs 21 to 33.

Cases Noticed:

Aspden v. Leclerc, [2014] N.S.R.(2d) Uned. 200; 2014 NSCA 86, refd to. [para. 19].

C.B. v. T.M., [2013] N.S.R.(2d) Uned. 87; 2013 NSCA 53, refd to. [para. 34].

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. 43].

Counsel:

Appellants, in person;

Adam B. Neal, for the respondent.

This appeal was heard at Halifax, Nova Scotia, on October 8, 2014, by Beveridge, Farrar and Bryson, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Farrar, J.A., on October 24, 2014.