C.L. v. Children's Aid Society of Inverness- Richmond
Section 49(4) of the Children and Family Services Act is mandatory; because the appellant failed to take steps to perfect the appeal and the statutory 90‑day requirement was not met, the court had no jurisdiction to hear the appeal and the appeal must be dismissed.
Source-derived case information.
- Citation
- 1993 NSCA 112
- Parties
- Appellant: C. L.; Respondent: The Children's Aid Society of Inverness-Richmond
- Court
- Nova Scotia Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 24 June 1993
- Procedural Posture
- Appeal Under Children and Family Services Act / Application to Dismiss for Failure to Comply With S.49(4) of the Act (heard and Dismissed June 24, 1993)
- Outcome
- Application granted; appeal dismissed for failure to comply with s.49(4) of the Children and Family Services Act.
- Legal Topics
- Mandatory Appeal Timelines, Transcript Preparation Responsibility, Jurisdiction to Hear Appeal, Perfection of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
C. L.
Appellant
The Children's Aid Society of Inverness-Richmond
Respondent
Procedural Posture
Appeal Under Children and Family Services Act / Application to Dismiss for Failure to Comply With S.49(4) of the Act (heard and Dismissed June 24, 1993)
Legal Issues
- 1 Whether failure to perfect the appeal and prepare transcript within the 90 day period mandated by s.49(4) ousts the court of jurisdiction to hear the appeal
- 2 Whether s.49(4) is mandatory and binding on the parties and the court
Ratio Decidendi
Section 49(4) of the Children and Family Services Act is mandatory; because the appellant failed to take steps to perfect the appeal and the statutory 90‑day requirement was not met, the court had no jurisdiction to hear the appeal and the appeal must be dismissed.
Court Disposition
Application granted; appeal dismissed for failure to comply with s.49(4) of the Children and Family Services Act.
Orders
- Application to dismiss appeal granted.
- Appeal dismissed.
Full Case Text
Judgment text and source record
1 paragraphs
C.L. v. Children's Aid Society of Inverness- Richmond Court Court of Appeal Date 1993-06-24 Citation 1993 NSCA 112 Docket CA 02797 Judge/Registrar/Adjudicator Jones, Malachi C. (Honourable Justice) (CA) Document Type Decision Decision Content C. A. No. 02797 NOVA SCOTIA COURT OF APPEAL Cite as: C.L. v. Children’s Aid Society of Inverness-Richmond, 1993 NSCA 112 BETWEEN: C. L. ) Kathryn Pentz ) for the Appellant Appellant ) ) - and - ) ) Robert B. MacKeen ) for the Respondent THE CHILDREN'S AID SOCIETY ) OF INVERNESS-RICHMOND ) ) Respondent ) Application Heard: ) June 24, 1993 ) ) ) Application Dismissed: ) June 24, 1993 ) BEFORE: The Honourable Mr. Justice M.C. Jones, in chambers. JONES, J.A.: This is an application for an order to dismiss the appeal herein for failure to comply with s. 49(4) of the Children and Family Services Act. On November 19, 1992, Wilson, F.C.J. made an order giving the respondent permanent care and custody of the children. Section 49(4) of the Act provides: "49(4) Where a notice of appeal is filed pursuant to this Section, the Minister is responsible for the timely preparation of the transcript and the appeal shall be heard by the Appeal Division of the Supreme Court within ninety days of the filing of the notice of appeal." A notice of appeal was filed on January 4, 1993. The application is based on the fact that no steps have been taken since the notice of appeal was filed to perfect the appeal. Apparently counsel for the appellant had requested approval from legal aid before proceeding further with the appeal. In my view the provisions of s. 49(4) are mandatory and therefore the court has no jurisdiction to hear the appeal. See Family & Children's Services of Kings Co. v. E.D., 12 R.F.L. (3d) 104 and Children's Aid Society of Halifax v. L. (Y.M.), 39 R.F.L. (3d) 343. The application is granted and the appeal dismissed but without costs. J.A.