N.S. v. T.S., (2015) 356 N.S.R.(2d) 133 (SC)

Judge:Lynch, J.
Court:Supreme Court of Nova Scotia
Case Date:February 11, 2015
Jurisdiction:Nova Scotia
Citations:(2015), 356 N.S.R.(2d) 133 (SC);2015 NSSC 65
 
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N.S. v. T.S. (2015), 356 N.S.R.(2d) 133 (SC);

    1126 A.P.R. 133

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Temp. Cite: [2015] N.S.R.(2d) TBEd. MR.003

Minister of Community Services (applicant) v. T.S. and W.M. (respondents)

(Hfx. No. SFHCFSA-094728; 2015 NSSC 65)

Indexed As: Nova Scotia (Minister of Community Services) v. T.S. et al.

Nova Scotia Supreme Court

Family Division

Lynch, J.

February 11, 2015.

Summary:

The Minister of Community Services (MCS) brought an application under s. 32 of the Children and Family Services Act (CFSA). At the interim hearing, MCS requested a finding that the child, a four year old girl, was in need of protective services under s. 39(3) and an order placing the child in the care of her parents subject to MCS's supervision under s. 39(4)(b) of the CFSA. MCS requested conditions which would allow it to enter the parents' home to ascertain that the child was being properly cared for. MCS also requested provisions requiring the parents to refrain from the use of non-medically prescribed drugs and use of alcohol, submission to hair follicle testing and orders of production for records from the Abbie Lane Hospital, the Halifax Regional Police and seven separate organizations under the umbrella of Capital Health.

The Nova Scotia Supreme Court, Family Division, dismissed the application. The credible and trustworthy information and evidence presented to the court did not provide reasonable and probable grounds to determine that the child was in need of protective services. Nothing in the decision prohibited MCS from continuing their investigation.

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.

Evidence - Topic 1525

Hearsay rule - Hearsay rule exceptions and exclusions - General - [See first Guardian and Ward - Topic 819 ].

Guardian and Ward - Topic 817.3

Public trustee or guardian - Appointment - Child in need of protection - Interim order - [See first and second Guardian and Ward - Topic 819 ].

Guardian and Ward - Topic 819

Public trustee or guardian - Appointment - Child or adult in need of protection - Evidence - The Nova Scotia Supreme Court, Family Division, stated that "The MCS [Minister of Community Services] must comply with the rules of evidence, although at the interim hearing stage they can rely on evidence that is credible and trustworthy [Children and Family Services Act, s. 34(11)]. Evidence of limited or no probative value should not be presented to the court in the affidavit of the MCS. Statements from anonymous sources should not be contained in the affidavits for the truth of their contents. If the anonymous referral information is presented to the court as proof that the statement was made and the reason for the investigation by the MCS, it could be considered for that purpose provided the investigation of the MCS substantiated the information. If the MCS did not consider the information received important or reliable enough to investigate, it should not be in the affidavit as it has no probative value. If the MCS did investigate but did not substantiate the anonymous referral information, it should not be in the affidavit as it has no probative value. Unless the details of the anonymous referral are necessary to explain the subsequent investigation they should not be included in the affidavit." - See paragraphs 18 and 19.

Guardian and Ward - Topic 819

Public trustee or guardian - Appointment - Child or adult in need of protection - Evidence - After numerous anonymous referrals, the Minister of Community Services (MCS) brought an application under s. 32 of the Children and Family Services Act (CFSA) - At the interim hearing, MCS requested a finding that the child, a four year old girl, was in need of protective services and an order placing her in her parents' care subject to MCS's supervision (CFSA, ss. 39(3), 39(4)(b)) - MCS requested conditions allowing it to enter the parents' home to ascertain that the child was being properly cared for as well as other intrusive provisions - The Nova Scotia Supreme Court, Family Division, dismissed the application - The anonymous or confidential referrals were not admissible and should not be considered - They did not provide credible and trustworthy evidence on which the court could find reasonable and probable grounds to believe that the child was in need of protective services (s. 34(11)) - The court considered evidence of the mother's reaction when MCS attended at her home to investigate the anonymous allegations, which MCS interpreted as evidence of mental health issues - There was no doubt that the mother was upset and angry about the allegations made about her and the father - She "got in the face" of the social worker, screamed and yelled, was hard to keep on topic, and cursed and swore - She also apologized for her behaviour - She was very upset again when the social worker indicated that there was going to be a court application with requests for very intrusive orders - The mother was trying to explain the referrals as coming from her previous partner - It was impossible to defend against anonymous allegations - It was not unusual that a person would get very upset about the invasion into their life as a result of anonymous referrals - The mother's behaviour did not provide reasonable and probable grounds that the child was in need of protective services - See paragraphs 1 to 28.

Guardian and Ward - Topic 819

Public trustee or guardian - Appointment - Child or adult in need of protection - Evidence - After numerous anonymous referrals, the Minister of Community Services (MCS) brought an application under s. 32 of the Children and Family Services Act (CFSA) - At the interim hearing, MCS requested a finding of reasonable and probable grounds that the child, a four year old girl, was in need of protective services and an order placing her in her parents' care subject to MCS's supervision (CFSA, ss. 39(3), 39(4)(b)) - The Nova Scotia Supreme Court, Family Division, stated that "Proceedings under the CFSA involve a huge intrusion into the lives of families and the end result could be loss of all parental rights. They are not to be used for fishing expeditions when there are numerous anonymous referrals made." - See paragraph 26.

Cases Noticed:

Director of Child Protection (P.E.I.) v. C.P. and T.P. (2014), 356 Nfld. & P.E.I.R. 58; 1108 A.P.R. 58; 2014 PECA 18, agreed with [para. 18].

Statutes Noticed:

Children and Family Services Act, S.N.S. 1990, c. 5, sect. 39(11) [para. 11].

Counsel:

Megan Roberts, for the applicant;

Eugene Tan, for the respondent, T.S.;

W.M., self-represented.

This application was heard in Halifax, N.S., on February 11, 2015, by Lynch, J., of the Nova Scotia Supreme Court, Family Division, who delivered the following decision on the same date.

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