Nova Scotia (Minister of Community Services) v. B.F. and B.W., (2003) 219 N.S.R.(2d) 41 (CA)

• Judge: Roscoe, Bateman and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 12, 2003
• Jurisdiction: Nova Scotia
• Citations: (2003), 219 N.S.R.(2d) 41 (CA);2003 NSCA 119

N.S. v. B.F. (2003), 219 N.S.R.(2d) 41 (CA);

 692 A.P.R. 41

MLB headnote and full text

Temp. Cite: [2003] N.S.R.(2d) TBEd. NO.048

Minister of Community Services (appellant) v. B.F., B.W. and Mi'Kmaq Family and Children's Services of Nova Scotia (respondents)

(CA 202056; 2003 NSCA 119)

Indexed As: Nova Scotia (Minister of Community Services) v. B.F. and B.W.

Nova Scotia Court of Appeal

Roscoe, Bateman and Fichaud, JJ.A.

November 12, 2003.

Summary:

Pursuant to a review of a disposition order (supervision), the Minister sought permanent care and custody of four children aged between three and seven under s. 42(1)(f) of the Children's Services Act. The parents sought a return of the children under agency supervision (s. 42(1)(b)).

The Nova Scotia Family Court, in a judgment reported at (2003), 216 N.S.R.(2d) 26; 680 A.P.R. 26, dismissed the Minister's application and ordered that the children be returned to the parents under agency supervision, with services funded by the province. The Minister appealed.

The Nova Scotia Court of Appeal allowed the appeal and ordered that the children be placed in the permanent care and custody of the Minister.

Evidence - Topic 2200

Special modes of proof - Judicial notice - General principles - General - The trial judge in a child protection hearing relied extensively in his reasons for judgment on a document (Growing Up With Parents Who Have Learning Difficulties) that was never in evidence, was not referred to by counsel or expert witnesses, was not a legal text and was used as an expert opinion without the knowledge of or input of counsel - The Nova Scotia Court of Appeal held that the trial judge erred in relying on the document - The contents of the document were not so "notorious" as to permit the trial judge to take judicial notice of the document - The trial judge should have limited his sources of expert evidence to those materials adduced at trial - See paragraphs 89 to 100.

Guardian and Ward - Topic 814

Public trustee or guardian - Appointment - Child or adult in need of protection - Friendly or departmental supervision - The Minister sought permanent care and custody of four children, aged 3-7, who were being inadequately cared for by parents disabled with limited cognitive abilities that hindered their attainment of required parenting skills - The application was made after extensive agency involvement in providing services over several years - The parents sought a return of the children under a supervision order, with in-home support funded by the agency - At issue was, inter alia, the agency's obligation to provide funded services that did not reasonably appear capable of resolving the parenting incapacities within the time limits for supervision orders under s. 43 of the Children and Family Services Act (no more than 12 months) and the court's jurisdiction to extend those time limits - The trial judge ordered that the children be returned to the parents under a supervision order (initially six months), with the agency to provide funded services - The court held that long-term assistance was required and the best interests of the children overrode any time limits under the Act - The Nova Scotia Court of Appeal held that the trial judge erred in extending the supervision order beyond the s. 43(4) time limits, which were unequivocal - Since the only options were permanent care and custody or returning the children to the parents (unacceptable), the court granted permanent care and custody to the Minister - See paragraphs 48 to 113.

Guardian and Ward - Topic 815

Public trustee or guardian - Appointment - Child or adult in need of protection - Considerations (incl. best interests of child) - [See Guardian and Ward - Topic 814 ].

Guardian and Ward - Topic 815.4

Public trustee or guardian - Appointment - Child or adult in need of protection - Duties of agency - Funding - The Nova Scotia Court of Appeal found it unnecessary to decide whether a trial judge erred in finding that he had jurisdiction to order the Agency to provide and fund services which were not approved by the Agency or contained in a plan submitted to the court by the Agency - See paragraph 115.

Guardian and Ward - Topic 816

Public trustee or guardian - Appointment - Child or adult in need of protection - Permanent appointment - [See Guardian and Ward - Topic 814 ].

Guardian and Ward - Topic 819

Public trustee or guardian - Appointment - Child or adult in need of protection - Evidence - [See Evidence - Topic 2200 ].

Guardian and Ward - Topic 820

Public trustee or guardian - Appointment - Temporary appointment - Extension of - The Nova Scotia Family Court referred to the court's jurisdiction, in the best interests of children, to extend the time limits found in the Children and Family Services Act, including the extension of time limits for supervision orders under s. 43(4) of the Act - The Nova Scotia Court of Appeal held that the trial judge erred - Section 43(4) was unequivocal - There was no jurisdiction to extend temporary supervision orders beyond the s. 43(4) time limits - See paragraphs 48 to 68.

Guardian and Ward - Topic 902

Public trustee or guardian - The hearing - Time limits (incl. applications) - [See Guardian and Ward - Topic 820 ].

Guardian and Ward - Topic 944

Public trustee or guardian - Appeals to courts - Nature and scope of - The Nova Scotia Court of Appeal stated that "a trial judge's decision on a children's protection matter may be set aside on appeal only if the trial judge erred in legal principle or has made a palpable and overriding error in his appreciation of the evidence" - See paragraph 44.

Cases Noticed:

Children's Aid Society of Halifax v. C.M. et al. (1995), 145 N.S.R.(2d) 161; 418 A.P.R. 161 (C.A.), refd to. [para. 42].

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. 44].

Nova Scotia (Minister of Community Services) v. C(B).T. and F.Y. (2002), 207 N.S.R.(2d) 109; 649 A.P.R. 109 (C.A.), refd to. [para. 44].

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. 45].

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. 45].

Children's Aid Society and Family Services of Colchester County v. H.W. et al. (1996), 155 N.S.R.(2d) 334; 457 A.P.R. 334 (C.A.), dist. [para. 50].

Family and Children's Services of Annapolis County v. J.M.M. and L.M. (1997), 161 N.S.R.(2d) 68; 477 A.P.R. 68 (C.A.), dist. [para. 56].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 61].

Social Services Administration Board (Parry Sound District) v. Ontario Public Service Employees Union, Local 324 et al. (2003), 308 N.R. 271; 177 O.A.C. 235 (S.C.C.), refd to. [para. 61].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1, refd to. [para. 64].

Nova Scotia (Minister of Community Services) v. L.L.P. et al. (2002), 211 N.S.R.(2d) 47; 662 A.P.R. 47 (C.A.), refd to. [para. 65].

Dean v. Brown (2002), 209 N.S.R.(2d) 70; 656 A.P.R. 70 (C.A.), refd to. [para. 95].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 111].

Statutes Noticed:

Children and Family Services Act, S.N.S. 1990, c. 5, sect. 43(4) [para. 31]; sect. 45(1) [para. 32]; sect. 46(5)(c) [para. 33].

Authors and Works Noticed:

Routledge, L., Growing Up With Parents Who Have Learning Difficulties (1998), generally [para. 89].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), p. 60 [para. 59].

Counsel:

W. Bruce Gillis, Q.C., and Peter C. McVey, for the appellant;

Andrew Ionson, for the respondents, B.F. and B.W.;

No one appearing for the respondent, Mi'Kmaq Family and Children's Services of Nova Scotia.

This appeal was heard on October 17, 2003, at Halifax, N.S., before Roscoe, Bateman and Fichaud, JJ.A., of the Nova Scotia Court of Appeal.

On November 12, 2003, Fichaud, J.A., delivered the following judgment for the Court of Appeal.