M.W. v. N.S., (2014) 353 N.S.R.(2d) 106 (CA)

Judge:Fichaud, Scanlan and Bourgeois, JJ.A.
Court:Nova Scotia Court of Appeal
Case Date:September 26, 2014
Jurisdiction:Nova Scotia
Citations:(2014), 353 N.S.R.(2d) 106 (CA);2014 NSCA 103
 
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M.W. v. N.S. (2014), 353 N.S.R.(2d) 106 (CA);

    1115 A.P.R. 106

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Temp. Cite: [2014] N.S.R.(2d) TBEd. NO.022

M.W. (appellant) v. Minister of Community Services (respondent)

(CA 426855; 2014 NSCA 103)

Indexed As: M.W. v. Nova Scotia (Minister of Community Services)

Nova Scotia Court of Appeal

Fichaud, Scanlan and Bourgeois, JJ.A.

November 18, 2014.

Summary:

The Nova Scotia Family Court placed an 18 month old girl in the permanent care and custody of the Minister of Community Services. At the final review disposition hearing, the child's mother, through her counsel, indicated her consent to the permanent care and custody order. The mother appealed on the grounds that (1) her consent was not valid due to the ineffective representation of her counsel; (2) she was not provided with appropriate services by the Minister; and (3) the judge failed to comply with the requirements of the Children and Family Services Act.

The Nova Scotia Court of Appeal dismissed the appeal on all grounds.

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 823

Public trustee or guardian - Appointment - Appeals - At the final review disposition hearing, the appellant, through her counsel, indicated consent to the permanent care and custody order concerning her child - As a ground of appeal, the appellant argued that her consent was not valid due to the ineffective representation of her counsel - She sought the introduction of fresh evidence in that regard - The Nova Scotia Court of Appeal held that the ground of appeal had no merit - The fresh evidence was necessary to assess the allegations surrounding counsel's representation, and was admitted - Based on the record, the proffered evidence and the circumstances before the court, the appellant failed to establish that counsel's representation was ineffective, or that it led to a miscarriage of justice - "The ineffective assistance of counsel as a ground of appeal is a serious allegation. It should not be used indiscriminately, but rather when the mishandling of the client's matter is reasonably supportable on the record, by admissible evidence on appeal, and where there is a clear miscarriage of justice. This case does not even come close." - See paragraphs 41 to 53.

Guardian and Ward - Topic 823

Public trustee or guardian - Appointment - Appeals - The Family Court judge placed an 18 month old child in the permanent care and custody of the Minister of Community Services - On appeal, the child's mother alleged that the Minister failed to provide her with the "middle" ground option as recommended by the assessor; i.e., that she and the child be placed together in a supervised placement - As such, she was not given the opportunity to demonstrate her ability to parent, nor was the "least intrusive" approach taken by the Minister - The Nova Scotia Court of Appeal held that the argument was meritless - The mother's position totally disregarded the concerns highlighted by the assessor, namely, the mother's unaddressed mental health issues and her ongoing involvement with a convicted sex offender - Nor was the Minister obligated "to provide every possible service which could conceivably alleviate risk of harm and enable a child to remain with its parent" - Section 13 of the Children and Family Services Act directed the Minister to take "reasonable measures" to provide services that promoted the integrity of the family - See paragraphs 54 to 60.

Guardian and Ward - Topic 823

Public trustee or guardian - Appointment - Appeals - At a final disposition hearing, the appellant consented to a permanent care and custody order - On appeal, she submitted that the Family Court judge failed to abide by the mandatory obligations contained within ss. 41 and 42 of the Children and Family Services Act - The Nova Scotia Court of Appeal, in rejecting that ground of appeal, stated that "In assessing whether the family court judge erred in relation to his statutory obligations, it is helpful to note the context in which he was acting. Several observations are important. Firstly, the family court judge had been involved in the proceedings from the outset ... The appellant had been present at every court appearance, and was represented on all occasions, save once where she was in the process of changing lawyers. The court had received a final Plan of Care filed in support of the Minister's application for permanent care and custody, and he was advised the appellant had reviewed same with her counsel. ... [T]he court was presented with a draft order, and was advised the appellant had reviewed it with her counsel and was consenting to it." - See paragraph 64.

Guardian and Ward - Topic 823

Public trustee or guardian - Appointment - Appeals - The Family Court judge placed the appellant's child in the permanent care and custody of the Minister of Community Services - The appellant had indicated her consent, through her legal counsel - The Nova Scotia Court of Appeal rejected the submission that the judge failed to abide by the statutory obligations prior to granting the order - From the recital on the face of the order, the Family Court signified it was satisfied on the basis of the evidence and material on file that ss. 42(2), 42(3) and 42(4) of the Children and Family Services Act had been complied with - It was implicit that the court had turned its mind to s. 41(4)(a), ensuring services had been offered - The judge was not obligated in order to comply with s. 41(4)(b) to ask whether the appellant had consulted independent legal counsel in connection with the consent - "Where a parent is unrepresented, such an inquiry should be made, but where counsel is standing before the court who has identified themselves as representing the party, absent clearly unusual circumstances, there would be no obligation to inquire further." - See paragraphs 66 to 69.

Guardian and Ward - Topic 823

Public trustee or guardian - Appointment - Appeals - The Family Court judge placed the appellant's child in the permanent care and custody of the Minister of Community Services - The appellant had indicated her consent, through her legal counsel - The appellant argued that the judge failed to abide by the obligation contained within s. 41(4)(c) of the Children and Family Services Act, concerning the issue of consent - The Nova Scotia Court of Appeal held that "Although it would have been preferable for the family court judge to confirm directly with the appellant that her consent was being voluntarily given, his failure to do so in this case does not justify appellate intervention. Here, there is no suggestion the appellant was intellectually impaired. She had been present at every court proceeding and had the opportunity to hear the exchanges between counsel and the court, specifically ... when the matter of consent had been raised. Further, she had received the Plan of Care which clearly set out the consequences of consenting to the permanent care and custody order. In my view, such falls within the 'exceptional circumstances' as contemplated by this Court in G.D. [Family and Children's Services of Lunenburg County v. G.D. (1997)] "- See paragraphs 70 to 75.

Guardian and Ward - Topic 825.5

Public trustee or guardian - Appointment - Permanent appointment - Setting aside - [See first Guardian and Ward - Topic 823 ].

Guardian and Ward - Topic 945

Public trustee or guardian - Appeals to courts - Admission of "new evidence" - [See first Guardian and Ward - Topic 823 ].

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - [See first Guardian and Ward - Topic 823 ].

Practice - Topic 9230

Appeals - New trials - Lack of or incompetence of counsel at trial - [See first Guardian and Ward - Topic 823 ].

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. 40].

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. 41].

R. v. West (W.F.) (2010), 288 N.S.R.(2d) 293; 914 A.P.R. 293; 2010 NSCA 16, refd to. [para. 42].

R. v. Hobbs (K.P.) (2009), 282 N.S.R.(2d) 14; 895 A.P.R. 14; 2009 NSCA 90, refd to. [para. 42].

R. v. Fraser (A.) (2011), 306 N.S.R.(2d) 201; 968 A.P.R. 201; 2011 NSCA 70, refd to. [para. 42].

R. v. Gogan (D.) (2011), 309 N.S.R.(2d) 308; 979 A.P.R. 308; 2011 NSCA 105, refd to. [para. 44].

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.), consd. [para. 70].

Statutes Noticed:

Children and Family Services Act, S.N.S. 1990, c. 5, sect. 13(1) [para. 56]; sect. 41(4) [para. 62]; sect. 42(2), sect. 42(3), sect. 42(4) [para. 63]; sect. 49(6) [para. 76].

Counsel:

Arthur von Kursell, for the appellant;

Philip S. Gruchy, for the respondent.

This appeal was heard on September 26, 2014, in Halifax, Nova Scotia, before Fichaud, Scanlan and Bourgeois, JJ.A., of the Nova Scotia Court of Appeal. In reasons written by Bourgeois, J.A., the Court delivered the following judgment, dated November 18, 2014.

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