A.R. v. Nova Scotia (Community Services)

A.R. v. Nova Scotia (Community Services)

Subsection 78(6) applies to children in permanent care and custody; the statute vests the court with the discretion to continue or vary access after adoption and that determination must be made with procedural fairness; therefore persons with court-ordered access (here A.R. and R.R.) are entitled to a forum to be heard in adoption proceedings unless the Minister timely applies under s.48(5) to terminate access.

Citation
2008 NSSC 20
Parties
Natural Parent/applicant: A. R.; Natural Parent/applicant: R. R.; Respondent/agency: Minister of Community Services; Proposed Adoptive Parents: Proposed adoptive parents; Subject Child: J.P.R.
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
25 January 2008
Procedural Posture
Adoption/child Welfare / Application for Standing in Adoption Proceedings / Interlocutory Decision
Outcome
Court ordered the Minister to commence an application to terminate the access provisions under s.48(5) within 40 days; if Minister fails the court will grant A.R. and R.R. standing in the adoption proceedings to make representations under s.78(6).
Legal Topics
Access Orders, Permanent Care and Custody, Standing to Be Heard, Procedural Fairness, Best Interests of the Child, Statutory Interpretation, Inherent Jurisdiction
Source Language
English
Family Law Adoption Law Child Welfare Administrative Law Access Orders Permanent Care and Custody Standing to Be Heard Procedural Fairness +3 more

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Parties

A. R.

Natural Parent/applicant

R. R.

Natural Parent/applicant

Minister of Community Services

Respondent/agency

Proposed adoptive parents

Proposed Adoptive Parents

J.P.R.

Subject Child

Procedural Posture

Adoption/child Welfare / Application for Standing in Adoption Proceedings / Interlocutory Decision

Legal Issues

  1. 1 Whether s.78(6) of the Children and Family Services Act applies to children in the permanent care and custody of the Minister
  2. 2 What procedural rights (standing, right to present and challenge evidence) natural parents with court-ordered access have in adoption proceedings under s.78(6) when the child is in permanent care and custody

Ratio Decidendi

Subsection 78(6) applies to children in permanent care and custody; the statute vests the court with the discretion to continue or vary access after adoption and that determination must be made with procedural fairness; therefore persons with court-ordered access (here A.R. and R.R.) are entitled to a forum to be heard in adoption proceedings unless the Minister timely applies under s.48(5) to terminate access.

Court Disposition

Court ordered the Minister to commence an application to terminate the access provisions under s.48(5) within 40 days; if Minister fails the court will grant A.R. and R.R. standing in the adoption proceedings to make representations under s.78(6).

Orders

  • Minister shall have 40 days from the date of decision to commence an application to terminate the access provisions of the August 24, 2006 permanent care and custody order pursuant to s.48(5) of the Children and Family Services Act
  • If the Minister fails to commence that application within 40 days, the court will grant A.R. and R.R. standing in the adoption proceedings to make representations on whether it is in the best interests of J.P.R. that any access by them continue after adoption