Nova Scotia (Minister of Community Services) v. T.H. et al., (2010) 293 N.S.R.(2d) 200 (CA)

• Judge: MacDonald, C.J.N.S., Fichaud and Farrar, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 16, 2010
• Jurisdiction: Nova Scotia
• Citations: (2010), 293 N.S.R.(2d) 200 (CA);2010 NSCA 63

N.S. v. T.H. (2010), 293 N.S.R.(2d) 200 (CA);

    928 A.P.R. 200

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. JL.026

Minister of Community Services (appellant) v. T.H. and D.B. (respondents)

(CA 325503; 2010 NSCA 63)

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

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Fichaud and Farrar, JJ.A.

July 27, 2010.

Summary:

Two brothers, aged 10 and eight, were first apprehended for protection by the Minister of Community Services in 2004, and were in and out of protective care. The Minister applied for permanent care and custody, with a view to adoption. The boys' mother, supported by their father, sought return of the boys to her care, with access to the father.

The Nova Scotia Family Court, in a decision not reported in this series of reports, decided that the boys' best interest was in the Minister's permanent care and custody, but "ruled out" adoption. The court added conditions to the permanent care and custody orders, directing that foster care continue indefinitely and suggesting return to the mother. The Minister appealed, submitting that the court erred in law or jurisdiction by attaching the conditions.

The Nova Scotia Court of Appeal allowed the appeal and deleted the conditions.

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 1781

Powers - Guardianship - General - A disposition judge decided that it was in the best interests of two brothers to be in the permanent care and custody of the Minister of Community Services, but added conditions to "rule out" adoption - The Nova Scotia Court of Appeal stated that placement was a "matter" under s. 2(2) of the Child and Family Services Act (CFSA), meaning the Minister's paramount consideration had to be the children's best interests - "But that does not mean the court has a plenary authority to pre-empt the exercise of the Minister's functions as legal guardian. This court has said that, unless there is bad faith or breach of the duty of fairness, the CFSA intended that placement decisions for children in permanent care and custody rest with the Minister, under the Minister's status as guardian under s. 47(1)" - In the end result, the court concluded that the disposition judge erred in law in adding conditions to the permanent care and custody orders - See paragraphs 38 and 39.

Courts - Topic 1781

Powers - Guardianship - General - A disposition judge's orders for permanent care and custody provided for indefinite foster care except for an option of the childrens' return to their mother - His reasons stated that "this order will preclude the children being placed for adoption" - The Nova Scotia Court of Appeal stated that s. 48 of the Child and Family Services Act permitted a court, in specified circumstances, either to terminate the order for permanent care and custody or to vary the access conditions of that order - If the order was affirmed by the court, "(1) s. 48 would not authorize a variation of the conditions that preclude adoption, and (2) s. 48(8) would not authorize Agency placement for adoption as an option for the court on an application for termination of the permanent care and custody order" - In the end result, the court concluded that the disposition judge erred in law in adding the conditions to the order - The court had no jurisdiction to restrict the Minister's authority over children in the Minister's permanent care and custody - See paragraphs 41 and 42.

Courts - Topic 1801

Powers - Guardianship - Infants - [See both Courts - Topic 1781 ].

Courts - Topic 6171.2

Provincial courts - Nova Scotia - Family Court - Jurisdiction - Respecting adoption - [See both Guardian and Ward - Topic 803 ].

Family Law - Topic 1424

Adoption - Jurisdiction - Conferred by statute - [See both Guardian and Ward - Topic 803 ].

Guardian and Ward - Topic 803

Public trustee or guardian - Legislation - The Nova Scotia Court of Appeal discussed the Child and Family Services Act (CFSA) in the context of a permanent care and custody order made under s. 47 and adoption provisions in ss. 67 to 87 - The governing statutory provisions were to be interpreted consistently with the child's best interests as stated in s. 2(2) - However, "[t]hat conclusion does not end the analysis ... [T]he CFSA is a comprehensive statute with specific provisions defining how, when, by whom, and the criteria by which the child's best interests are to be determined and promoted respecting adoption. These provisions belong in the interpretive exercise" - Those provisions were not considered in the decision under appeal - In the end result, the court held that this led to an error of law - See paragraphs 25 to 27.

Guardian and Ward - Topic 803

Public trustee or guardian - Legislation - A disposition judge added conditions to the permanent care and custody orders of two children, directing that foster care continue indefinitely and suggesting return to the mother - The conditions' bottom line was that the children not be adopted - As authority for the conditions, the judge relied on s. 2(2) of the Child and Family Services Act (CFSA) of Nova Scotia, which stated that the best interests of the child governed all proceedings and matters under the Act - The Nova Scotia Court of Appeal "walked through" the CFSA as part of the "interpretive exercise" to "spotlight the Legislature's intentions respecting the child's best interests" - The court concluded that "Section 2(2) is not abrogative ... It does not invalidate other sections in the CFSA. Rather s. 2(2) is to be construed consistently with other provisions in the CFSA. That is the interpretive exercise directed by [Nova Scotia (Minister of Health) v. J.J.]. In my respectful view, the judge erred in law by contravening the Legislature's expressed intent respecting the process and standards according to which the best interests of children in the Minister's permanent care and custody are considered for adoption" - In the end result, the court deleted the conditions - See paragraphs 28 to 57.

Guardian and Ward - Topic 812.5

Public trustee or guardian - Appointment - Permanent guardian of children - Effect of - A disposition judge placed conditions in two orders for permanent care and custody - The Nova Scotia Court of Appeal stated that "[t]here are critical differences between the CFSA's provisions governing orders for Agency permanent care and custody and the provisions ... for other disposition orders involving Agency supervision or temporary care and custody. Section 47 says nothing, except respecting access, to authorize terms or conditions in the order for Agency permanent care and custody. In this respect, s. 47 differs from ss. 43(1) and 44(1) of the CFSA ... that expressly authorize the court to include 'terms and conditions' in the disposition orders for supervision or Agency temporary care and custody ... The Legislature chose not to express that power for a permanent care and custody order. Instead, the Legislature in s. 47(1) assigned to the Minister the 'status of legal guardian of the child'" - In the end result, the court deleted the conditions - See paragraphs 36 and 37.

Guardian and Ward - Topic 812.5

Public trustee or guardian - Appointment - Permanent guardian of children - Effect of - The Nova Scotia Court of Appeal set out and discussed the various provisions in the Child and Family Services Act (CFSA) that "confirm the Legislature's changed focus respecting the child's best interests after a permanent care order ... The Legislature has, after permanent care and custody, de-emphasized family contact and instead priorized long term stable placement, including adoption, in the criteria governing the child's best interests. There are exceptions ... including access in limited circumstances under s. 47(2) and openness agreements after adoption under s. 78A" - See paragraphs 43 to 46.

Guardian and Ward - Topic 812.5

Public trustee or guardian - Appointment - Permanent guardian of children - Effect of - A disposition judge placed conditions in two orders for permanent care and custody, precluding the children being placed for adoption - The Nova Scotia Court of Appeal deleted the conditions - "The judge's reasons use the nomenclature of permanent care and custody. But the judge's 'conditions on the permanent care and custody order', directing indefinite foster care and ... exhorting return to the mother without adoption, replicate the substance of temporary care. There are two difficulties with this, both sourced in the [Child and Family Services Act]. First, s. 45(1)'s outside time limit for temporary care, discussed earlier, has passed ... Second ... the Legislature intended that permanent care and custody involve an opportunity for long term stable placement. The principal option for long term stable placement is adoption, according to the CFSA's prescribed standards and procedures" - See paragraph 48.

Guardian and Ward - Topic 812.5

Public trustee or guardian - Appointment - Permanent guardian of children - Effect of - A disposition judge's decision for the permanent care and custody of two children stated that "this order will preclude the children being placed for adoption" - Clause 2 of the orders directed that, if the existing foster placement ceased, "the Minister shall also give serious consideration to placing the child in the care of [the mother], having regard to the best interests of the child" - The Nova Scotia Court of Appeal noted that the decision did not mention ss. 3(2) or 3(3) of the Child and Family Services Act, which confirmed "the Legislature's repriorization of criteria for the child's best interests in adoption" - Of particular interest in s. 3(3) was the exclusion of the "merits of ... a proposal that the child be placed for adoption, compared with the merits of the child remaining with or returning to a parent or guardian" - In the end result, the court concluded that the disposition judge erred in law and deleted clause 2 - See paragraphs 49 and 50.

Guardian and Ward - Topic 812.5

Public trustee or guardian - Appointment - Permanent guardian of children - Effect of - A disposition judge granted orders for permanent care and custody of two children - Clause 2 of the orders directed that, if the existing foster placement ceased, "the Minister shall also give serious consideration to placing the child in the care of [the mother]" - Clause 3 stated that "This Order is predicated upon the Minister maintaining the child in his current foster home so long as possible" - The Nova Scotia Court of Appeal deleted both clauses - The decision under appeal precluded the legislated processes and standards for adoption under the Child and Family Services Act (CFSA) - "The role of the adoption court under ss. 73 and 78(1) would be eliminated ... In Nova Scotia (Community Services) v. C.B.T. ... this court adopted the trial judge's statement, in a ruling after a disposition hearing, that '[t]his court does not have jurisdiction over adoption'. That is because the CFSA assigns that jurisdiction to another court at a later juncture" - See paragraph 56.

Guardian and Ward - Topic 816

Public trustee or guardian - Appointment - Child or adult in need of protection - Permanent appointment - The Nova Scotia Court of Appeal stated that the Supreme Court of Canada's decision in Nova Scotia (Minister of Health) v. J.J. (2005) centered on the Family Court's jurisdiction under s. 9(3)(c) of the Adult Protection Act of Nova Scotia to impose terms and conditions on plans proposed by the Minister for a vulnerable adult's care - The court disagreed with the Minister's suggestion in this appeal that "the principles in J.J. are not applicable to the different statutory regime of child protection matters" - J.J.'s reasoning did not dissolve just because the Child and Family Services Act (CFSA) was a different statute - "J.J.'s approach is interpretive, and the Supreme Court's reasoning pivots on the Legislature's intent. J.J.'s message for the CFSA is that the relevant statutory provisions be interpreted to determine how the Legislature intended to channel the promotion of the child's best interests" - See paragraphs 20 to 24.

Guardian and Ward - Topic 816

Public trustee or guardian - Appointment - Child or adult in need of protection - Permanent appointment - Section 47 of the Child and Family Services Act of Nova Scotia (CFSA) governed orders for permanent care and custody - The Nova Scotia Court of Appeal stated that s. 47 differed from the Adult Protection Act - "The Adult Protection Act did not assign guardianship, with its rights, powers and responsibilities, to the Minister. Rather, s. 9(3)(c) authorized the court to assess the qualitative sufficiency of the Minister's services to the protected adult. Then ss. 9(5) through (8) provided that the adult protection orders will expire every six months unless renewed by further court orders. The Adult Protection Act expressly contemplated a continuing judicial supervision over the conditions of the protected adult's evolving care. This cannot be said of the CFSA" - See paragraph 40.

Guardian and Ward - Topic 816

Public trustee or guardian - Appointment - Child or adult in need of protection - Permanent appointment - [See Guardian and Ward - Topic 872 ].

Guardian and Ward - Topic 823

Public trustee or guardian - Appointment - Appeals - [See Guardian and Ward - Topic 944 ].

Guardian and Ward - Topic 872

Public trustee or guardian - Powers - To place children for adoption - The Nova Scotia Court of Appeal set out and discussed sections 67 to 87 of the Child and Family Services Act (CFSA), governing the process of adoption - "These provisions respecting adoption are ... the key difference between the CFSA and the Adult Protection Act ... The CFSA's processes and standards specifically channel the Legislature's intentions for promotion of the child's best interests respecting adoption. They are not just an alter ego to the child's best interests under s. 2(2), leaving a judge on the disposition hearing with an option to choose one or the other. Rather they flesh out 'best interests' in s. 2(2) and, together with s. 2(2), embody the Legislature's prescription to satisfy the child's best interests respecting adoption" - See paragraphs 51 to 55.

Guardian and Ward - Topic 925

Public trustee or guardian - Children in care - Management of - Placement in a place of safety - [See first Courts - Topic 1781 ].

Guardian and Ward - Topic 929

Public trustee or guardian - Children in care - Management of - Compulsory foster care - [See second Guardian and Ward - Topic 803 ].

Guardian and Ward - Topic 944

Public trustee or guardian - Appeals to courts (incl. judicial review) - Nature and scope of - A disposition judge placed two children in the permanent care and custody of the Minister of Community Services but said that adoption would be "ruled out" - Conditions to the permanent care and custody orders directed that foster care continue indefinitely and suggested return to the mother - The Minister appealed - The Minister's submission was that the judge erred in law or jurisdiction by attaching the conditions, and in particular conditions that inhibited the children's placement for adoption - The Minister did not appeal the judge's findings of fact or the access order - The Nova Scotia Court of Appeal stated that the issue was "purely legal", for which the standard of review was correctness - See paragraphs 18 and 19.

Statutes - Topic 2603

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Intention from whole of section or statute - [See both Guardian and Ward - Topic 803 ].

Cases Noticed:

Nova Scotia (Minister of Health) v. J.J., [2005] 1 S.C.R. 177; 331 N.R. 103; 231 N.S.R.(2d) 1; 733 A.P.R. 1, consd. [para. 14].

Blois v. Blois (1988), 83 N.S.R.(2d) 328; 210 A.P.R. 328; 13 R.F.L.(3d) 225 (C.A.), refd to. [para. 14].

Children's Aid Society of Cape Breton-Victoria v. A.M. (2005), 232 N.S.R.(2d) 121; 737 A.P.R. 121; 2005 NSCA 58, refd to. [para. 18].

Nova Scotia (Minister of Community Services) v. N.N.M. and R.D.M. (2008), 268 N.S.R.(2d) 109; 857 A.P.R. 109; 2008 NSCA 69, refd to. [para. 38].

A.J.G. v. Children's Aid Society of Pictou County (2007), 256 N.S.R.(2d) 173; 818 A.P.R. 173; 2007 NSCA 78, refd to. [para. 45].

Children's Aid Society and Family Services of Colchester County v. E.Z. et al. (2007), 258 N.S.R.(2d) 311; 824 A.P.R. 311; 2007 NSCA 99, refd to. [para. 45].

Nova Scotia (Minister of Community Services) v. B.F. and B.W. (2003), 219 N.S.R.(2d) 41; 692 A.P.R. 41; 2003 NSCA 119, leave to appeal denied [2004] 1 S.C.R. v.; 330 N.R. 190; 229 N.S.R.(2d) 400; 725 A.P.R. 400, refd to. [para. 48].

T.B. v. Children's Aid Society of Halifax et al. (2001), 194 N.S.R.(2d) 149; 606 A.P.R. 149; 2001 NSCA 99, refd to. [para. 48].

Nova Scotia (Minister of Community Services) v. L.L.P. et al. (2002), 211 N.S.R.(2d) 47; 662 A.P.R. 47; 2003 NSCA 1, refd to. [para. 48].

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; 2002 NSCA 101, refd to. [para. 56].

Counsel:

Peter C. McVey and S. Raymond Morse, for the appellant;

Lisa Bevin, for the respondent, T.H;

Stephanie Hillson, for the respondent, D.B.

This appeal was heard on June 16, 2010, by MacDonald, C.J.N.S., Fichaud and Farrar, JJ.A., of the Nova Scotia Court of Appeal. Fichaud, J.A., delivered the following judgment and reasons for judgment of the Court, dated July 27, 2010.