Nova Scotia (Minister of Community Services) v. C.K.Z. et al., 2016 NSCA 61

• Judge: Scanlan, Bourgeois and Van den Eynden, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: July 15, 2016
• Jurisdiction: Nova Scotia
• Citations: 2016 NSCA 61;(2016), 376 N.S.R.(2d) 113 (CA)

N.S. v. C.K.Z. (2016), 376 N.S.R.(2d) 113 (CA);

    1185 A.P.R. 113

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. AU.001

Minister of Community Services (appellant) v. C.K.Z. and G.L.P. (respondents)

(CA 449684; 2016 NSCA 61)

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

Nova Scotia Court of Appeal

Scanlan, Bourgeois and Van den Eynden, JJ.A.

July 29, 2016.

Summary:

The Minister of Community Services applied for permanent care orders for the respondents' two infant children, ASP (born 2013) and GCP (born 2014). Both children had been in the temporary care of the Minister for some time. The Minister asserted that the parents (mother, 26; father, 44; both intellectually disabled), did not have the capacity and/or ability to resume care of their children, and that returning the children to their care exposed them to substantial risk of physical harm, emotional harm and chronic neglect.

The Nova Scotia Supreme Court, Family Division, in a decision with neutral citation 2016 NSFC 9, dismissed the Minister's application. The trial judge determined that the children were no longer in need of protection, and returned the children to their parents' care. The Minister appealed, asserting that the trial judge made several reviewable errors. The issues were whether the trial judge erred: (1) by adopting a parent-centric and/or proof of fault requirement when considering whether the children were in need of protective services; (2) when stating the burden of proof on the Minister was to a "clear, convincing and cogent" standard; and (3) in his application of s. 22(2)(b) and s. 22(2)(k) of the Child and Family Services Act. A further issue was the appropriate disposition, should the Court of Appeal find error justifying appellate intervention.

The Nova Scotia Court of Appeal allowed the Minister's appeal, and granted the requested orders for permanent care. "We are satisfied that the trial judge applied an erroneous focus and legal standard to the issues before him for determination, most critically whether the children were in need of protective services as alleged by the Minister. We are further of the view that the trial judge's belief that a 'different perspective' was warranted influenced his view of the evidence before him, particularly that offered on behalf of the Minister. On this basis alone, we would allow the appeal." The trial judge also erred in his application of s. 22(2)(b) and s. 22(2)(k) of the Act. "[U]ltimately the paramount consideration is the best interests of ASP and GCP. They need to be protected from harm and unfortunately their parents are unable to do so." The Court also determined that any order for access was not in the best interests of the children.

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

Public trustee or guardian - Appointment - Child or adult in need of protection - Considerations (incl. best interests of child) - The trial judge dismissed the Minister's application for permanent care orders for two infant children - The Minister appealed, asserting that the trial judge wrongly focused on the rights of the respondents/parents as opposed to what was in the best interests of the children - The respondents argued that the trial judge appropriately considered the family unit, as the Child and Family Services Act required - The Nova Scotia Court of Appeal, in allowing the appeal, stated that "[i]ntegrity of a family unit is important. However, the predominant factor must be the welfare of the child. ... The Minister submits that there are so many problems with the trial judge's parent-centric analysis that the result is 'a death by a thousand cuts'. We agree. ... [T]he trial judge's approach to the issues before him was not in accordance with the principles set out in the Act. We are satisfied that despite stating the correct child-centered legal principles, he failed to apply them. He also inappropriately referenced material not before the court in support of his 'new perspective'. Finally, the trial judge applied a legal standard to the issues and evidence before him, which does not exist in the governing legislation." - See paragraphs 31 to 41.

Guardian and Ward - Topic 815

Public trustee or guardian - Appointment - Child or adult in need of protection - Considerations (incl. best interests of child) - The trial judge dismissed the Minister's application for permanent care and returned the two children to the respondents'/parents' care - He determined that both parents were intellectually disabled, that they "may need society's long term help" and "it may be time for a different perspective, and a different approach in the best interests of the family" - The Nova Scotia Court of Appeal, in allowing the Minister's appeal, stated that "[i]n endorsing a 'different approach', the trial judge found support in the United Nations Convention on the Rights of Persons with Disabilities. This is problematic in several regards. Firstly ... there is no analysis how that document serves to modify the child-centered focus set out in the legislation governing the proceeding before him. Furthermore ... the trial judge overlooked the existence of the United Nations Convention on the Rights of the Child. ... Finally, ... case authorities continue to hold that protection legislation is child-focused. The trial judge was bound to follow the legislation and the approach set out by the Supreme Court of Canada and this Court. It is also concerning that the trial judge, without giving the parties the opportunity to speak to it, relied upon a document, not argued or placed before him in evidence, as support for a new approach to intellectually disabled parents in child protection proceedings." - See paragraphs 42 to 44.

Guardian and Ward - Topic 815

Public trustee or guardian - Appointment - Child or adult in need of protection - Considerations (incl. best interests of child) - The trial judge dismissed the Minister's application for permanent care - He determined that both respondents/parents were intellectually disabled, that they "may need society's long term help" and "it may be time for a different perspective, and a different approach in the best interests of the family" - The Nova Scotia Court of Appeal, in allowing the Minister's appeal, stated that "[t]he trial judge's 'different approach' calls for a different legal standard when assessing the abilities of intellectually impaired parents to care for their children. ... The trial judge's use of a standard calling for a comparison to similarly disabled parents as part of a protection analysis is flawed. The [Child and Family Services] Act contains no such standard. In s. 22(2), the Legislature set out the circumstances which give rise to a finding that a child is in need of protective services. ... Nowhere in s. 22(2) is the protection status of a child linked to the specific attributes of his or her parent or guardian. It is, however, clearly linked to the actions, failure to act, or inability to act of the adults responsible for the child's care. Whether a child is in need of protective services is based upon the real life, lived experiences of the child. Nowhere in that definition, or elsewhere in the Act, is the status of a child as being in need of protective services informed by the reason why their parents acted, failed to act, or have the inability to act in a particular manner." - See paragraphs 45 to 47.

Guardian and Ward - Topic 815

Public trustee or guardian - Appointment - Child or adult in need of protection - Considerations (incl. best interests of child) - In the court below, the Minister applied for permanent care orders - The Minister asserted that the respondents/parents, both intellectually disabled, did not have the capacity and/or ability to resume care of their two young children, and that returning the children to their care exposed them to substantial risk of physical harm, emotional harm and chronic neglect - The trial judge dismissed the application - He determined that the parents "may need society's long term help" and "it may be time for a different perspective, and a different approach in the best interests of the family" - The Nova Scotia Court of Appeal allowed the Minister's appeal - "We agree that the intellectual capacity of a parent is an important factor in implementing services to remediate problematic circumstances, and in some instances, evaluating the risk of future harm. However, the [Child and Family Services] Act does not contemplate a finding that a child is, or is not, in need of protective services, being based upon where his or her intellectually disabled parents fall within a comparison to parents with similar attributes. We are satisfied that the trial judge applied an erroneous focus and legal standard to the issues before him for determination, most critically whether the children were in need of protective services as alleged by the Minister. We are further of the view that the trial judge's belief that a 'different perspective' was warranted influenced his view of the evidence before him, particularly that offered on behalf of the Minister. On this basis alone, we would allow the appeal." - See paragraphs 48 and 49.

Guardian and Ward - Topic 815

Public trustee or guardian - Appointment - Child or adult in need of protection - Considerations (incl. best interests of child) - Section 22(2)(k) of the Child and Family Services Act provided that "A child is in need of protective services where the child has been abandoned, the child's only parent or guardian has died or is unavailable to exercise custodial rights over the child and has not made adequate provisions for the child's care and custody, or the child is in the care of an agency or another person and the parent or guardian of the child refuses or is unable or unwilling to resume the child's care and custody" - The Nova Scotia Court of Appeal held that the trial judge in this case erred in his application of s. 22(2)(k) - "Firstly, the trial judge incorrectly identified s. 22(2)(k) as a 'substantial risk' provision, along with clauses (b), (g) and (ja). It is not. Secondly, ... the trial judge was of the view that like (g), (k) included a consideration of whether the parents were consenting to services or treatment to alleviate harm. (The trial judge had found the respondents to be willing to participate in services.) Sections 22(2)(g) and (k) are not analogous. ... Section 22(2)(k), unlike (g), does not, as initially stated by the trial judge, include a consideration of parental engagement in services" - See paragraphs 64 and 65.

Guardian and Ward - Topic 815

Public trustee or guardian - Appointment - Child or adult in need of protection - Considerations (incl. best interests of child) - At trial, the Minister alleged that the respondents' two children were in need of protective services by virtue of s. 22(2)(k) of the Child and Family Services Act; i.e., "the child has been abandoned, the child's only parent or guardian has died or is unavailable to exercise custodial rights over the child and has not made adequate provisions for the child's care and custody, or the child is in the care of an agency or another person and the parent or guardian of the child refuses or is unable or unwilling to resume the child's care and custody" - Evidence was led that the respondents, both intellectually disabled, were unable to resume care of the children - The trial judge determined that the children were no longer in need of protection - On the appeal, the respondents submitted that s. 22(2)(k) could only ground a finding of protection in cases of parental abandonment - The Nova Scotia Court of Appeal stated that "the respondents' narrow interpretation of s. 22(2)(k) is flawed. A reading of the section demonstrates that not only a parent's unwillingness to resume care of a child is included (an abandonment), but also a parent's inability to do so. The provision is intended to cover circumstances well beyond abandonment, also permitting a consideration of a willing parent's ability to resume care." - See paragraphs 55 to 58.

Guardian and Ward - Topic 815

Public trustee or guardian - Appointment - Child or adult in need of protection - Considerations (incl. best interests of child) - In the decision under appeal, the trial judge determined the respondents' two infant children were no longer in need of protection - He dismissed the Minister's application for permanent care - An issue was whether the trial judge erred in his application of ss. 22(1) and 22(2)(b) of the Child and Family Services Act: "22 (1) In this Section, 'substantial risk' means a real chance of danger that is apparent on the evidence. (2) A child is in need of protective services where ... (b) there is a substantial risk that the child will suffer physical harm inflicted or caused as described in clause (a);" - The Nova Scotia Court of Appeal, in allowing the appeal, stated that "there is no analysis undertaken by the trial judge with respect to s. 22(2)(b). ... [I]t is implicit the trial judge concluded the children were not at substantial risk of physical harm. However, given the pleadings, and the evidence before the court, more was required than a blanket conclusion. The trial judge's view regarding the role of 'the past' when assessing the existence of substantial risk is troublesome. ... Evidence of past parenting has been described as 'the primary evidence' upon which current and future circumstances can be assessed, and 'highly relevant' to the future care of the child ... [T]here was ample evidence of past behaviour of both respondents which is relevant to their care of the children, and in particular the risk of physical harm. However, the trial judge undertook no analysis, based on the evidence, relating to the alleged risk of physical harm to the children. His failure to do so is an error justifying intervention." - See paragraphs 67 to 71.

Guardian and Ward - Topic 815.2

Public trustee or guardian - Appointment - Child in need of protection - Considerations - Past and future events - [See seventh Guardian and Ward - Topic 815 ].

Guardian and Ward - Topic 816

Public trustee or guardian - Appointment - Child or adult in need of protection - Permanent appointment - [See Guardian and Ward - Topic 823 ].

Guardian and Ward - Topic 819

Public trustee or guardian - Appointment - Child or adult in need of protection - Evidence - In the decision under appeal, the trial judge determined that the respondents' two children were no longer in need of protection - The Nova Scotia Court of Appeal, in allowing the Minister's appeal, stated that "what is most problematic with [the trial judge's] treatment of the expert evidence is his failure to consider their evidence as it relates to ss. 22(2)(b) and (k) of the [Child and Family Services] Act. Both experts recommended the children be placed in the permanent care and custody of the Minister. In reading his decision, it is obvious the trial judge took exception to the experts including final disposition recommendations in their respective reports. In child protection proceedings, it is both common and acceptable to see experts make recommendations that touch upon the 'ultimate issue' before the Court. ... That said, recommendations from experts alone do not carry the day. The admissible and relevant evidence of experts is to be considered with the other evidence. In the end, it is up to the trial judge (and in this case this Court as we are delving into the record) to determine the ultimate outcome or disposition." - See paragraphs 93 to 96.

Guardian and Ward - Topic 823

Public trustee or guardian - Appointment - Appeals - The Minister of Community Services applied for permanent care orders for the respondents'/parents' two infant children - Both children had been in temporary care for some time - The Minister asserted that the parents, both intellectually disabled, did not have the capacity and/or ability to resume care of their children - The trial judge determined that the children were no longer in need of protection, and returned the children to their parents' care - The Nova Scotia Court of Appeal allowed the Minister's appeal and granted the requested orders for permanent care - "We have the option of ordering a new trial in the court below. Section 49(6)(c) of the [Child and Family Services] Act also permits this Court to make any order the court below could have made." - The children had been the subject of court proceedings for almost their entire lives - Because of delays, settling the older child's long term plan was seriously over the statutory timeline - "Given the children's needs and their sense of timing, rendering a timely decision is important. Finality is an important consideration in decisions pertaining to children. To remit for a retrial is not in their best interests. The thorough record from the court below permits a meaningful review by this Court. All parties had prepared for a permanent care hearing and advanced evidence and argument accordingly. This material enables us to adjudicate on the issues of critical importance to these children." - Turning to that analysis, the Court held that there was ample evidence in the record to support a determination that the children remained in need of protection - See paragraphs 72 to 74.

Guardian and Ward - Topic 824.3

Public trustee or guardian - Appointment - Onus or burden of proof - In the decision under appeal, the trial judge determined that the respondents' two children were no longer in need of protection - He dismissed the Minister's application for permanent care - The Minister appealed - An issue was whether the trial judge inappropriately applied a heightened burden of proof to the evidence before him - The Nova Scotia Court of Appeal reformulated the issue as "Did the trial judge err when stating the burden of proof on the Minister was to a 'clear, convincing and cogent' standard", and addressed the issue as follows - "In our view, the description of the burden as employed by the trial judge overly condensed the approach endorsed in F.H. [v. McDougall (2008) (S.C.C.)]. It risks the re-implementation of a higher burden. ... Although prudence called for a more fulsome description by the trial judge, on the record before us we are not satisfied that he misapplied the burden and standard of proof." - See paragraphs 50 to 54.

Guardian and Ward - Topic 944

Public trustee or guardian - Appeals to courts - Nature and scope of - The Nova Scotia Court of Appeal set out the scope of appellate review on a child protection matter - See paragraph 30.

Practice - Topic 6037.2

Judgments and orders - Reasons for judgment after trial or application - Giving written reasons after oral judgment - Subsequent to the Minister of Community Services filing the Notice of Appeal, the trial judge released his decision in written form - It contained multiple variations from his oral decision - The Nova Scotia Court of Appeal stated "[w]hat is the authority for a trial judge to revise the content of their oral decision, particularly, after having issued orders that flowed from their decision? It is acceptable and proper for a trial judge to edit their oral decision reduced to written form both for readability and to catch typographical transcription errors. When editing, a judge should not change the substance of their rendered oral reasons. Public confidence in and the integrity of our justice system requires that judges avoid what might appear to be after-the-fact justification. ... Although the Minister expressed concern with many of the changes, she concedes the changes are not to the degree that it raises a judicial apprehension of bias, thereby rebutting the presumption of judicial integrity. We agree. That recognized, the Minister asked that we rely on the oral transcript when assessing the grounds of appeal or a material issue. We agree that is appropriate." - See paragraphs 61 and 62.

Practice - Topic 6037.2

Judgments and orders - Reasons for judgment after trial or application - Giving written reasons after oral judgment - The Minister of Community Services had specifically alleged that the children were in need of protective services by virtue of s. 22(2)(k) of the Child and Family Services Act - Subsequent to the Minister filing the Notice of Appeal, the trial judge released his oral decision in written form - It contained multiple variations from his oral decision - In his reasons, the trial judge made minimal reference to s. 22(2)(k) of the Act - The Nova Scotia Court of Appeal stated that the trial judge's treatment of s. 22(2)(k) changed materially from the oral decision, to that issued in writing - "[A] review of the oral decision reveals the trial judge's analysis was originally more expansive, including a broader consideration of s. 22(2)(k) ... In our view, the deletion of the reference to s. 22(2)(k) from the oral to the written decision went beyond editing for grammar or ease of comprehension. As such, we will consider the trial judge's oral reasons as reflective of his analysis." - See paragraphs 60 to 63.

Counsel:

Peter C. McVey, Q.C., for the appellant;

Nicholaus Fitch, for C.K.Z.;

Michael K. Power, Q.C., for G.L.P.

This appeal was heard on July 15, 2016, in Halifax, Nova Scotia, before Scanlan, Bourgeois and Van den Eynden, JJ.A., of the Nova Scotia Court of Appeal. In reasons written by Bourgeois and Van den Eynden, JJ.A., the Court delivered the following judgment, dated July 29, 2016.