Nova Scotia (Minister of Community Services) v. E.U., 2015 NSCA 61

• Judge: MacDonald, C.J.N.S., Scanlan and Bourgeois, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 02, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSCA 61;(2015), 361 N.S.R.(2d) 176 (CA)

N.S. v. E.U. (2015), 361 N.S.R.(2d) 176 (CA);

    1137 A.P.R. 176

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. JN.026

E.U. (appellant) v. The Minister of Community Services (respondent)

(CA 436141; 2015 NSCA 61)

Indexed As: Nova Scotia (Minister of Community Services) v. E.U.

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Scanlan and Bourgeois, JJ.A.

June 17, 2015.

Summary:

The Minister of Community Services applied for an order that the child, A.U., born March 2013, and taken into care, be placed in the permanent care of the Minister, with no provision for access (Children and Family Services Act, s. 42(1)(f)). The child's mother opposed the application.

The Nova Scotia Supreme Court, Family Division, in a decision reported at [2015] N.S.R.(2d) Uned. 1, placed the child in the permanent care and custody of the Minister. The mother appealed. She argued the trial judge made fatal errors in his assessment and interpretation of the evidence.

The Nova Scotia Court of Appeal dismissed the appeal. "[T]he majority of the appellant's arguments invite this Court to reweigh the evidence. That is not our function. ... When the statutory clock ran out, A.J.U. was still in need of protective services."

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 825.5

Public trustee or guardian - Appointment - Permanent appointment - Setting aside - The appellant sought to have the permanent care and custody order set aside, and the child returned to her care - That order resulted from a contested disposition hearing, which included the evidence of Dr. Christians, qualified to give expert opinion in the area of "general psychiatry" - The appellant challenged the trial judge's findings regarding the status of her mental health and its resulting impact on the risk to the child - All of her concerns were rooted in the evidence of Dr. Christians - The Nova Scotia Court of Appeal held that the trial judge had ample evidentiary basis to draw the conclusions he did - The appellant's desired interpretation of Dr. Christians' evidence was based on discrete comments, which the trial judge was entitled to weigh and assess against the totality of the evidence - See paragraphs 26 to 42.

Guardian and Ward - Topic 825.5

Public trustee or guardian - Appointment - Permanent appointment - Setting aside - The trial judge placed a 22 month old child in the permanent care and custody of the Minister of Community Services - He agreed with the Minister's submission that the child's mother continued to engage in a chaotic lifestyle, exhibited a lack of impulse control and some manipulative behaviour - The mother sought to have the order set aside - She argued that the trial judge accepted the Minister's assertions without an adequate evidentiary foundation - The Nova Scotia Court of Appeal disagreed - The trial judge had the benefit of hearing not only the viva voce testimony of 14 witnesses, but also had extensive documentary materials entered into evidence - He also noted the mother's own acknowledgment, under cross-examination, of her past history of child neglect, domestic violence, drug abuse, attempted suicide and prostitution - The evidence more than adequately laid the evidentiary foundation for the trial judge's characterization of the mother and her chaotic lifestyle - See paragraphs 42 to 46.

Guardian and Ward - Topic 825.5

Public trustee or guardian - Appointment - Permanent appointment - Setting aside - This was an appeal from an order placing a child in the permanent care and custody of the Minister of Community Services, pursuant to Nova Scotia's Children and Family Services Act - The appellant contended that the trial judge erred in placing insufficient weight on the evidence relating to the positive efforts that she had made - The Nova Scotia Court of Appeal stated that "[i]n finding the efforts were 'too little, too late', the trial judge was engaging in the 'multi-faceted endeavour' of determining the best interests of the child, which absent palpable and overriding error, is entitled to deference. The trial judge was clearly aware of, and gave consideration to the evidence relating to the appellant's positive efforts. It was his obligation to consider this evidence not in a vacuum, but rather as part of the totality of evidence before him, and within the statutory framework of the Act. That is exactly what he did. The appellant is asking this Court to revisit the delicate balancing of evidence undertaken by the trial judge. That is not our function." - See paragraphs 47 to 49.

Guardian and Ward - Topic 825.5

Public trustee or guardian - Appointment - Permanent appointment - Setting aside - The trial judge placed A.J.U., a 22 month old child, in the permanent care and custody of the Minister of Community Services, pursuant to Nova Scotia's Children and Family Services Act - The appellant submitted that the trial judge erred in determining that the appellant's mental health created a risk to the child - The Nova Scotia Court of Appeal disagreed - "While it is true that no witness directly testified that the appellant's mental health would pose a risk to A.J.U., I do not view that as problematic in the least. Making a determination as to whether the particular circumstances of a parent give rise to risk as defined by the Act, falls squarely within the mandate of the trial judge. It was his function to assess the evidence before him, make findings of fact, and then determine whether those findings gave rise to risk to the child. ... [T]he trial judge made findings relating to the appellant's mental health, considered this within the context of the other evidence relating to the appellant's personal circumstances, and found that the child would not be safe in her care. Given the evidence before him, and the factual findings made, it was certainly open to the trial judge to reach that conclusion." - See paragraphs 50 to 52.

Guardian and Ward - Topic 944

Public trustee or guardian - Appeals to courts - Nature and scope of - This was an appeal from an order placing a child in the permanent care and custody of the Minister of Community Services, pursuant to Nova Scotia's Children and Family Services Act - That order resulted from a contested disposition hearing - The appellant argued that the trial judge made fatal errors in his assessment and interpretation of the evidence, resulting in an improper finding that the child was in need of protective services - The Nova Scotia Court of Appeal set out the appropriate standard of review - "In my view, determining whether a child is 'in need of protective services' is an issue of mixed law and fact. A trial judge must correctly identify the law which defines that term, however, once that is done, findings of fact, will govern whether a child falls within that definition. Challenges to those factual findings will be reviewed on a 'palpable and overriding error' standard." - See paragraph 24.

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. 23].

Counsel:

Coline Morrow, for the appellant;

Danielle Morrison, for the respondent.

This appeal was heard in Halifax, Nova Scotia, on June 2, 2015, before MacDonald, C.J.N.S., 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 June 17, 2015.