S.A.D. v. Nova Scotia (Minister of Community Services) et al., (2014) 349 N.S.R.(2d) 131 (CA)

• Judge: Fichaud, Beveridge and Scanlan, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 16, 2014
• Jurisdiction: Nova Scotia
• Citations: (2014), 349 N.S.R.(2d) 131 (CA);2014 NSCA 77

S.A.D. v. N.S. (2014), 349 N.S.R.(2d) 131 (CA);

    1101 A.P.R. 131

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. AU.001

S.A.D. (appellant) v. Minister of Community Services, A.G.M., C.E.M., C.I.A.M. by their Guardian ad Litem, Valorie Rule (respondents)

(CA 422799; 2014 NSCA 77)

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

Nova Scotia Court of Appeal

Fichaud, Beveridge and Scanlan, JJ.A.

August 1, 2014.

Summary:

A Family Court judge granted the Minister of Community Services permanent care and custody of three brothers aged 15, eight and two, without access. A focus of the evidence at the hearing was the mother's proclivity to allow the father to return, despite his inveterate violent behaviour. In his view, leaving the children with the mother likely would expose the children to further violence, contrary to their best interests. The mother appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

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.

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - A Family Court judge granted the Minister of Community Services permanent care and custody of three brothers aged 15, eight and two, without access - On appeal, the mother contended that the maximum time lines for temporary care and supervision in s. 45 of the Children and Family Services Act were ultra vires the Legislature under s. 92 of the Constitution Act, 1867 and violated s. 7 of the Charter of Rights and Freedoms - The constitutional issues were raised for the first time in the Court of Appeal - The Nova Scotia Court of Appeal held that child welfare was intra vires the provincial legislature - Clearly the Charter issue would require evidence - The Court of Appeal should decline to consider a new constitutional issue not raised in the lower court, if at the trial the opposing party would have adduced additional evidence, not already on the record, that pertained to the new issue - Thus, the court declined to rule on the Charter challenge - See paragraphs 107 to 109.

Constitutional Law - Topic 7505

Provincial jurisdiction (s. 92) - Matters of local or private nature - Particular matters - Child welfare - [See Civil Rights - Topic 8584 ].

Guardian and Ward - Topic 216

Appointment and qualifications of guardian - Of children - Guardian ad litem - General - A Family Court judge granted the Minister of Community Services permanent care and custody of three brothers aged 15, eight and two, without access - On appeal, the mother submitted, inter alia, that the trial judge allowed the children's guardian ad litem too prominent a role in the trial, particularly by allowing the guardian to present last - The Nova Scotia Court of Appeal disagreed - Section 37(3) of the Children and Family Services Act (CFSA) authorized the appointment of a guardian ad litem - Ms. Rule was appointed as the guardian ad litem for the two younger children, without objection - She prepared a Report disclosing her evidence, which was entered without objection - The guardian ad litem spoke for the children whose interests were "paramount" under the CFSA - The judge ruled: "Best interest of the child is my guiding principle. The child goes last." - So he positioned Ms. Rule's evidence at the end of the trial - The judge had the discretion to consider the process by which the guardian ad litem's participation would fold into the process between the Minister and mother - He did not improperly exercise that discretion (no error in principle and no patent injustice) - Nor did the guardian ad litem's participation have any determinative impact on the judge's reasoning - The judge's decision was fully supported by the other evidence - See paragraphs 110 to 114.

Guardian and Ward - Topic 386

Appointment and qualifications of guardian - Evidence and proof - Order of evidence - [See Guardian and Ward - Topic 216 ].

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 815.13 ].

Guardian and Ward - Topic 815

Public trustee or guardian - Appointment - Child or adult in need of protection - Considerations (incl. best interests of child) - A Family Court judge granted the Minister of Community Services permanent care and custody of three brothers aged 15, eight and two, without access - The mother appealed - The Nova Scotia Court of Appeal stated that "The mother's submissions focus on the integrity of the biological family. That factor does not trump the children's best interests. There is no sliding scale that finds a happy medium by gradating the child's risk against promotion of the biological family." - See paragraph 93.

Guardian and Ward - Topic 815.13

Public trustee or guardian - Appointment - Child in need of protection - Exposure to violence - In October 2013, a Family Court judge granted the Minister of Community Services permanent care and custody of three brothers aged 15, eight and two, without access - A focus of the evidence at the hearing was the mother's proclivity to allow the father to return, despite his inveterate violent behaviour - The older children had been taken into care in 2006 for that very reason - In July 2012, the oldest son, emulating his father, had beat the mother while she was holding the baby - The three children again were taken into care - Services had been provided to the family throughout - The trial judge held that leaving the children with the mother likely would expose the children to further violence, contrary to their best interests - The Nova Scotia Court of Appeal dismissed the mother's appeal - The appeal turned on an issue of fact - The trial judge foresaw that, as had occurred often before, the mother and the father likely would resume what the judge found to be their "very enmeshed and complicated relationship", and reinstitute what he found to be a "recurring cycle" of exposure to domestic violence that had wounded these children - He made no palpable and overriding error of fact.

Guardian and Ward - Topic 823

Public trustee or guardian - Appointment - Appeals - [See Guardian and Ward - Topic 815.13 ].

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - [See Civil Rights - Topic 8584 ].

Cases Noticed:

Nova Scotia (Minister of Community Services) v. S.Z. et al. (1999), 181 N.S.R.(2d) 99; 560 A.P.R. 99; 1999 NSCA 155, refd to. [para. 51].

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. 61].

Nova Scotia (Minister of Community Services) v. T.H. et al. (2010), 293 N.S.R.(2d) 200; 928 A.P.R. 200; 2010 NSCA 63, leave to appeal refused [2011] 1 S.C.R. xi; 421 N.R. 399, refd to. [para. 62].

Children and Family Services of Colchester County v. K.T. (2010), 294 N.S.R.(2d) 379; 933 A.P.R. 379; 2010 NSCA 72, refd to. [para. 62].

J.F. v. Children's Aid Society of Cape Breton-Victoria (2005), 235 N.S.R.(2d) 117; 747 A.P.R. 117; 2005 NSCA 101, refd to. [para. 62].

Nova Scotia (Minister of Community Services) v. A.S., [2007] N.S.R.(2d) Uned. 98; 2007 NSCA 82, refd to. [para. 62].

G.M. v. Children's Aid Society of Cape Breton-Victoria (2008), 271 N.S.R.(2d) 200; 867 A.P.R. 200; 2008 NSCA 114, refd to. [para. 62].

G.S. v. Nova Scotia (Minister of Community Services) et al. (2006), 241 N.S.R.(2d) 148; 767 A.P.R. 148; 2006 NSCA 20, refd to. [para. 62].

Children's Aid Society of Halifax v. S.G. et al. (2001), 193 N.S.R.(2d) 273; 602 A.P.R. 273; 2001 NSCA 70, refd to. [para. 63].

Nova Scotia (Minister of Community Services) v. K.L.M. et al. (2007), 258 N.S.R.(2d) 327; 824 A.P.R. 327; 2007 NSCA 100, refd to. [para. 83].

B.D. et al. v. Children's Aid Society of Halton Region et al., [2007] 3 S.C.R. 83; 365 N.R. 302; 227 O.A.C. 161; 2007 SCC 38, refd to. [para. 94].

J.C. and A.C. v. Children's Aid Society of Cape Breton-Victoria (2005), 239 N.S.R.(2d) 132; 760 A.P.R. 132; 2005 NSCA 161, refd to. [para. 95].

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, leave to appeal refused [2004] 1 S.C.R. v; 330 N.R. 190; 229 N.S.R.(2d) 400; 725 A.P.R. 400, refd to. [para. 98].

P.H. v. Nova Scotia (Minister of Community Services) et al. (2013), 332 N.S.R.(2d) 134; 1052 A.P.R. 134; 2013 NSCA 83, refd to. [para. 98].

Native Child and Family Services of Toronto v. Communications, Energy and Paperworkers Union of Canada, [2010] 2 S.C.R. 737; 408 N.R. 121, refd to. [para. 108].

V.S. v. Nova Scotia (Minister of Health) (2006), 249 N.S.R.(2d) 185; 792 A.P.R. 185; 2006 NSCA 122, refd to. [para. 109].

R. v. Phillips (J.J.A.) (2006), 255 N.S.R.(2d) 6; 814 A.P.R. 6; 2006 NSCA 135, refd to. [para. 109].

Counsel:

Roseanne M. Skoke, for the appellant;

Peter C. McVey and Cory Roberts, for the respondent, Minister of Community Services;

Lisa Bevin, for the respondent, A.G.M. (not appearing);

Alain Bégin, for the respondent, Guardian Ad Litem V.R.;

Edward Gores, Q.C., for the respondent, Attorney General of Nova Scotia.

This appeal was heard in Halifax, N.S., on May 16, 2014, by Fichaud, Beveridge and Scanlan, JJ.A., of the Nova Scotia Court of Appeal. Fichaud, J.A., delivered the following decision for the court on August 1, 2014.