S.S. v. Nova Scotia (Minister of Community Services) et al., 2016 NSCA 4

• Judge: Bryson, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 28, 2016
• Jurisdiction: Nova Scotia
• Citations: 2016 NSCA 4;(2016), 369 N.S.R.(2d) 376 (CA)

S.S. v. N.S. (2016), 369 N.S.R.(2d) 376 (CA);

    1162 A.P.R. 376

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. FE.005

S.S. (appellant) v. The Minister of Community Services, M.S., S.A. and S.F. (respondents)

(CA 446435; 2016 NSCA 4)

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

Nova Scotia Court of Appeal

Bryson, J.A.

February 2, 2016.

Summary:

The Minister of Community Services applied for permanent care and custody of three children who had been in its care since August 2014. The children's maternal grandmother applied for party status in the proceeding. She also applied for leave and custody of the children pursuant to the Maintenance and Custody Act.

The Nova Scotia Supreme Court, Family Division, in a decision reported at (2015), 366 N.S.R.(2d) 206; 1154 A.P.R. 206, dismissed the applications. The grandmother appealed. The Minister moved to dismiss the appeal.

The Nova Scotia Court of Appeal, per Bryson, J.A., granted the motion and 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.

Courts - Topic 2101

Jurisdiction - Appellate jurisdiction - General - [See Guardian and Ward - Topic 943 ].

Courts - Topic 2110

Jurisdiction - Appellate jurisdiction - Single appellate judge - [See third Guardian and Ward - Topic 948 ].

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - [See third Guardian and Ward - Topic 948 ].

Courts - Topic 6041

Provincial courts - Nova Scotia - Court of Appeal - General - [See Guardian and Ward - Topic 943 ].

Courts - Topic 6050

Provincial courts - Nova Scotia - Court of Appeal - Jurisdiction - Single judge - [See third Guardian and Ward - Topic 948 ].

Guardian and Ward - Topic 823

Public trustee or guardian - Appointment - Appeals - [See fourth Guardian and Ward - Topic 948 ].

Guardian and Ward - Topic 943

Public trustee or guardian - Appeals to courts - Parties - The Minister of Community Services applied for permanent care and custody of three children - The children's maternal grandmother (SS) applied for party status in the proceeding - The application judge dismissed the application - SS appealed under the Children and Family Services Act (CFSA) - The Minister moved to dismiss the appeal - The Nova Scotia Court of Appeal, per Byrson, J.A., granted the motion and dismissed the appeal - SS had no right of appeal because she was not a party (CFSA, s. 49(1)) - The court discussed the possibility of the appeal being reconstituted under s. 38(1) or 38(1A) of the Judicature Act, which permitted an appeal from the Supreme Court and the Supreme Court Family Division, but noted several problems - Each of those sections began "Except where it is otherwise provided by any enactment ..." - The court would therefore have to find that the appeal provisions in the CFSA were no impediment - Moreover, if the application judge's decision was interlocutory, as the Minister argued, then the appeal would require leave and should have been filed no later than November 2015 (it was now February 2016) - See paragraphs 16 and 17.

Guardian and Ward - Topic 948

Public trustee or guardian - Appeals to courts - Powers of appellate court - [See Guardian and Ward - Topic 943 ].

Guardian and Ward - Topic 948

Public trustee or guardian - Appeals to courts - Powers of appellate court - The Minister of Community Services applied for permanent care and custody of three children - The children's maternal grandmother (SS) applied for party status in the proceeding - The application judge dismissed the application - SS appealed under the Children and Family Services Act (CFSA) - The Minister moved to dismiss the appeal - The Nova Scotia Court of Appeal, per Byrson, J.A., granted the motion and dismissed the appeal - SS had no right of appeal because she was not a party (CFSA, s. 49(1)) - Even assuming that the court had authority to amend the appeal as one brought under the Judicature Act, it would not do so because, inter alia, there were no exceptional circumstances to warrant such amendment - SS did not have a compelling case on the merits - No error of law was alleged or was apparent in the application judge's decision - The application judge's factual findings were supported by the record - See paragraph 19.

Guardian and Ward - Topic 948

Public trustee or guardian - Appeals to courts - Powers of appellate court - The Minister of Community Services applied for permanent care and custody of three children - The children's maternal grandmother (SS) applied for party status in the proceeding - The application judge dismissed the application - SS appealed under the Children and Family Services Act (CFSA) - The Minister moved to dismiss the appeal - The Nova Scotia Court of Appeal, per Byrson, J.A., granted the motion and dismissed the appeal - SS had no right of appeal because she was not a party (CFSA, s. 49(1)) - Even assuming that the court had authority to amend the appeal as one brought under the Judicature Act, it would not do so because, inter alia, the appeal was moot - The permanent custody order had been issued - SS was therefore asking the court to give her standing in a matter that had already been heard - SS would have to appeal the custody order, which she would need standing to do, and a single judge of the Court of Appeal could not grant standing - See paragraph 20.

Guardian and Ward - Topic 948

Public trustee or guardian - Appeals to courts - Powers of appellate court - The Minister of Community Services applied for permanent care and custody of three children - The children's maternal grandmother (SS) applied for party status in the proceeding - The application judge dismissed the application - SS appealed under the Children and Family Services Act (CFSA) - The Minister moved to dismiss the appeal - The Nova Scotia Court of Appeal, per Byrson, J.A., granted the motion and dismissed the appeal - SS had no right of appeal because she was not a party (CFSA, s. 49(1)) - Even assuming that the court had authority to amend the appeal as one brought under the Judicature Act, it would not do so because, inter alia, it would not be in the children's best interests - Three months had passed since the permanent custody order was made - The children's opportunity to bond and develop in a new family setting would be indefinitely deferred - Moreover, the application judge had determined that the children would likely be at risk if placed in SS's custody - See paragraphs 22 and 23.

Practice - Topic 8858

Appeals - Bar or loss of right of appeal - Moot issues - [See third Guardian and Ward - Topic 948 ].

Practice - Topic 8862

Appeals - Quashing or dismissal of appeals - Grounds for - [See Guardian and Ward - Topic 943 and second, third and fourth Guardian and Ward - Topic 948 ].

Practice - Topic 8893

Appeals - Parties - Standing to appeal - [See Guardian and Ward - Topic 943 ].

Practice - Topic 8989

Appeals - When appeal available - Persons entitled to appeal - [See Guardian and Ward - Topic 943 ].

Cases Noticed:

R.K. v. H.S.P. et al. (2009), 274 N.S.R.(2d) 113; 874 A.P.R. 113; 2009 NSCA 2, refd to. [para. 3].

Ingham v. West Hants District (Municipality) (2006), 243 N.S.R.(2d) 86; 772 A.P.R. 86; 2006 NSCA 37, refd to. [para. 3].

R.B. v. Children's Aid Society of Halifax et al. (2003), 214 N.S.R.(2d) 335; 671 A.P.R. 335; 2003 NSCA 49, refd to. [para. 6].

Jollymore Estate, Re (2001), 196 N.S.R.(2d) 177; 613 A.P.R. 177; 2001 NSCA 116, refd to. [para. 19].

Griffiths v. Nova Scotia (Department of Education) (2005), 233 N.S.R.(2d) 181; 739 A.P.R. 181; 2005 NSCA 85, refd to. [para. 20].

G.S. v. Nova Scotia (Minister of Community Services) et al. (2006), 239 N.S.R.(2d) 318; 760 A.P.R. 318; 2006 NSCA 4, refd to. [para. 20].

C.O. et al. v. Nova Scotia (Minister of Community Services) (2010), 295 N.S.R.(2d) 311; 935 A.P.R. 311; 2010 NSCA 83, refd to. [para. 22].

Statutes Noticed:

Judicature Act, R.S.N.S., c. 240, sect. 38(1), sect. 38(1A) [para. 17].

Counsel:

S.S., appellant in person;

Peter McVey, Q.C., for the respondent, Minister of Community Services.

This motion was heard in Chambers, in Halifax, N.S., on January 28, 2016, before Bryson, J.A., of the Nova Scotia Court of Appeal, who delivered the following judgment on February 2, 2016.