Children's Aid Society and Family Services of Colchester County v. T.M.

Children's Aid Society and Family Services of Colchester County v. T.M. Court Court of Appeal Date 2006-05-12 Citation 2006 NSCA 61 Docket CA 265758 Judge/Registrar/Adjudicator Roscoe, Elizabeth A. (Honourable Justice) (CA) Document Type Decision Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Children’s Aid Society and Family Services of Colchester County v. T.M. , 2006 NSCA 61 Date: 20060512 Docket: CA 265758 Registry: Halifax Between: Children's Aid Society and Family Services of Colchester County Appellant v. T. M. Respondent Restriction on publication: Pursuant to s. 94(1) Children and Family Services Act Judge: Justice Elizabeth Roscoe, In Chambers Application Heard: May 11, 2006, in Halifax, Nova Scotia Held: Application for stay is dismissed without costs. Counsel: S. Raymond Morse, Q.C., for the appellant Sheila A. McDougall and Nicole Baker, articled clerk, for the respondent Restriction on publication: Pursuant to s. 94(1) Children and Family Services Act. PUBLISHERS OF THIS CASE PLEASE TAKE NOTE THAT s. 94(1) OF THE CHILDREN AND FAMILY SERVICES ACT APPLIES AND MAY REQUIRE EDITING OF THIS JUDGMENT OR ITS HEADING BEFORE PUBLICATION. SECTION 94(1) PROVIDES: 94(1) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or a relative of the child. Reasons for judgment: [1] The appellant child welfare agency seeks a stay of an interim order of Family Court Judge David Hubley, made in relation to the custody of T., the eight year old son of the respondent, pursuant to s. 39(9) of the Children and Family Services Act S.N.S. 1990, c. 5, as amended. The appeal of the interim order has been scheduled to be heard in this court on September 12, 2006. The continuation of the child welfare proceeding in the Family Court before Judge Hubley is set for May 18, 2006. [2] The proceeding relating to T. commenced on March 21, 2006. At that time the agency was already involved with the mother in relation to an infant, S., who was born in August, 2005. T. had been living with his grandmother in Ottawa until February 2006 when the grandmother returned him to Truro to live his mother, T.M.. A supervision order in relation to T. was issued on March 23, 2006. (s. 39(4)(b)) [3] On March 21, 2006, S.S., the father of S., viciously assaulted T.M in the presence of the children. As a result of that assault and a previous incident of domestic violence T.M. and S.S. had both given undertakings in Provincial Court to have no contact with each other. The order of the Family Court dated March 23 also provided that T.M. would prevent S.S. from residing with her or having any contact with the child T. On April 10th S.S. was observed to be entering T.M.’s residence. Police and an agency worker attended at the home. T.M. denied that S.S. was present but upon searching the premises he was found hiding in a closet. T.M. advised that he had come to pick up his belongings and she lied because she did not want him to go to jail. She thought the visit was permissible because the children were not present. [4] As a result of the incident on April 10th, the agency took T. into care and made an application pursuant to s. 39(9) of the Act to vary the supervision order of March 23rd. The review application was heard by Judge Hubley on May 1st. Five witnesses testified for the agency and T.M. testified in response. On May 2nd Judge Hubley delivered his oral decision finding that the agency had proven a change in circumstances and that the taking of T. into care on April 10th was justified. He concluded that T. should remain in the care of the agency until May 9th when he should be returned to the care of his mother under closer supervision of the agency. At the request of the agency Judge Hubley stayed his order for a period of 10 days pursuant to s. 49(2). [5] The agency has appealed and requests a stay pending either the completion of the protection hearing in the Family Court or the hearing of the appeal. The respondent mother opposes the stay and asks that T. be returned to her care under supervision in accordance with Judge Hubley’s order. At the conclusion of the argument on the stay application, I reserved decision but continued the stay issued by Judge Hubley pending its release and advised counsel that my decision on the application would be made before the next hearing in Family Court on May 18th. [6] The appellant’s argument is that in spite of the repeated warnings to T.M. that she stay away from S.S., she continued to breach the court orders by having contact with him and thereby put her children at risk. It is submitted that to allow T. to return to his mother puts him at substantial risk of harm and that Judge Hubley failed to recognize that supervision by the agency was not sufficient to insure the child’s safety. The essence of the argument is stated in its brief as: The evidence established a substantial risk to the child’s health and safety as of April 10, 2006. It is difficult to comprehend how the learned Family Court Judge could find that the Agency had discharged the burden of proof falling upon it for purposes of the Variation Application and grant a further Order for Temporary Care and Custody under Section 39 of the Children and Family Services Act and at the same time direct the Agency within a week to return the child to the care Ms. [M.]. [7] The respondent submits that the stay is not warranted and is an unjustified interference with the statutory time lines and process of the Family Court since this protection matter has basically just begun. The respondent says the additional services in the order of May 2nd adequately address the agency’s concerns raised in the variation proceeding. As well, as noted by the trial judge, as with any supervisory order, the agency retains the discretion to take the child back into its care if deemed necessary. [8] The applicable legal principles and test on the application for a stay are as most recently set out by Justice Fichaud in The Children’s Aid Society of Cape Breton‑Victoria v. LD, 2006 NSCA 32: [16] Section 49(3) of the CFSA and Rule 62.10 govern stays of execution. [17] In Fulton Insurance Agencies Ltd. v. Purdy (1991), 100 N.S.R. (2d) 341 (C.A.) at ¶ 28, Justice Hallett stated the basic test for stays of execution under Rule 62.10. A stay may be granted if the applicant shows either (1) an arguable issue for an appeal, and that there would be irreparable harm from a denial of the stay, and that the balance of convenience favours the applicant or (2) there are exceptional circumstances. [18] These principles are adjusted in child protection cases. Section 2(2) of the CFSA states: (2) In all proceedings and matters pursuant to this Act, the paramount consideration is the best interests of the child. The Agency's stay application is a "proceeding" under the CFSA. So the best interests of SD govern. [19] In D.M.F. v. Minister of Community Services, [2004] N.S.J. No. 356, 2004 NSCA 113, at ¶ 12‑15 and 20, I reviewed the authorities and described how the normal Fulton principles are altered for a stay application in a child protection proceeding: [12] In child protection cases special principles infuse the Fulton tests. These principles have been summarized by Justice Cromwell in Minister of Community Services v. B.F., [2003] N.S.J. No. 421, 2003 NSCA 125 at paras. 13, 19, and 22, by Justice Saunders in Family and Children's Services of Annapolis Co. v. J.D., [2004] N.S.J. No. 35, 2004 NSCA 15 at paras. 10‑14, Justice Bateman in D.D. v. Nova Scotia (Minister of Community Services), [2003] N.S.J. No. 477, 2003 NSCA 146 at paras. 9‑1 and Justice Flinn in C.A.S. of Halifax v. B.M.J. (2000), 189 N.S.R. (2d) 192 at paras. 29‑31. I will summarize these principles without reproducing the cited passages. [13] Although the Fulton test provides the format for analysis, under s. 2(2) of the Act in a child protection case the overriding factor is always the best interests of the child. This reformulates the "irreparable harm" and "balance of convenience" branches of the Fulton test. The standard civil tests of irreparable harm to the applicant and balance of convenience between applicant and respondent are sterile in a child custody case. It is not the irreparable harm to the applicant (whether parent or Agency) or the balance of convenience between the litigants (parent and Agency) which governs. Rather the focus is on the child. It is highly unlikely that harm to the child would be compensable in money. So the "irreparable" concept recedes. [14] In B.F., at para. 19, Justice Cromwell summarized the approach: The applicants must show a risk of harm produced by the combination of the continuing in force of the order under appeal and the delay until the result of the proposed appeal is known. The risk is that if the stay is withheld, their rights and the interests of the children will be so impaired by the time of final judgment that it will be too late to afford complete relief. On the other hand, this risk must be balanced with the risk of harm to the children if the stay is granted. The risk to be considered is that of harm to the children that could result from staying an order that may be affirmed on further review to be both lawful and in their best interests. [15] This perspective also affects the deference which the judge considering a stay application must give to the trial judge's findings. The determination of the child's best interests is a delicate fact‑driven balance at the core of the rationale for appellate deference. For these reasons, in B.M.J. at para. 31, Justice Flinn said that the Court of Appeal "shows considerable deference to the decision of a trial judge in custody matters" and will only interfere if the trial judge has "gone wrong in principle, or has overlooked material evidence." Justice Cromwell noted in B.F. at para. 13 that, because of the need for stability and finality in child custody, generally there must be "circumstances of a 'special and persuasive nature', usually connected to the risk of harm to the children, in order to persuade the court to grant a stay." ... [20] In a child protection case, consideration of irreparable harm and balance of convenience distills into an analysis of whether denial of the stay would harm the child and, if so, whether the stay's issuance or denial would better serve, or cause less harm to, the child's interest. The applicants have adduced no evidence to dissuade me from deferring to the trial judge's findings. The children's positive reaction to foster care cited in Ms. Boyce's note of August 24, 2004, supports Justice Campbell's view that separation of the children from the parents would be ameliorative. To the same effect see Family and Children's Services of Cumberland County v. D.Mc., [2006] N.S.J. No. 84, 2006 NSCA 28, at ¶ 10‑14. [9] I have carefully considered the appellant’s arguments and studied Judge Hubley’s decision. I am not persuaded that I should interfere with his order. I am of the view that the trial judge was completely cognizant of the agency’s position and the risks posed by the potential presence of S.S. in the home. However, as is shown by the following passages, Judge Hubley was also conscious of the best interests of the child and although it appeared to be a difficult choice, he was persuaded that the mother had, as a result of the taking of T. into care on April 10th, an increased awareness of the dangers and consequences of continued contact with S.S. and had learned from her mistakes: The Court's satisfied that the issues are greater than just compliance and non‑compliance with existing orders. We have reviewed the circumstances of existing orders. But the orders themselves are not so totally comprehensive that everything has to be contained in the orders. Good judgement in parenting often goes beyond the scope of any particular orders. In this particular case, there were orders from other Courts, of which all participants were aware and the conditions therein. Cross‑examination was very insightful on some issues. In particular, what would have to be done to earn trust in the future. I think those comments were referred to also in the summations. Maintaining her progress that she has made with respect to the drug addictions in the past, follow through with services, notify the case worker, follow through with recommendations, counselling, cooperate with respect to access arrangements, work out a plan how to deal with the father of her unborn child and have safety or support systems in place. (page 2) ... ...Children and Family Services have been attempting to provide these supports in addition to the support of the grandmother to the best that they can. They've had wonderful people doing it. When you look at the caliber of the child support workers, you look at the caliber of the expert opinions they're getting, you look at the concerns in the file. There is no question that the blanket of support that they've tried to throw around her has been appropriate. Now, there is no question, and I find on the evidence, that there's clear and convincing evidence that the Agency has established a prima facie case for taking the steps that the Agency has to intervene and bring these matters back before the Court. I've considered the statutory authority under Section 39(9) as referred to by Mr. Morse. The Section 46 factors, the fact that there has been a change in circumstances, the fact that from their perspective the order was not being complied with, that there were concerns with respect to the best interests of the children. The Court finds that the burden on the Agency, in establishing a prima facie case has been met. There was clear and convincing evidence. However, it doesn't end there. The Court has to look at the whole of the evidence and the whole of the evidence includes the response that [T] has made with respect to these circumstances. ... (page 4 -5) But let's look at the response too. I've listened to the response carefully. In the response, and I'm trying to consider the response in the light of the submission that has been made by Mr. Morse on behalf of the Agency when they've raised the question "can she be counted on in the future"? That's the issue that's here. Can [the mother] be counted on to make wise judgements in the future? Mr. Justice Grant, one of the most sensitive Judges we've had in the Province of Nova Scotia perhaps during my professional career on family matters, said that in family proceedings that some of these proceedings have to be therapeutic, that if we go through and listen to the evidence as we did yesterday and today, that hopefully this exercise can be therapeutic or helpful to people. ... (page 5) She has acknowledged that she has made a mistake. I think that's important. I think it's clear on cross‑examination she didn't necessarily use all the options before her. ... (page 7) ... Can these needs be addressed in the mother's care? That's the question that I'm struggling with. The Supreme Court of Canada made a comment about these proceedings are so often focused on the parents' ability to parent or in this case, the ability of the mother to parent or the reasonableness of the position the Agency has taken. I've heard a lot of evidence on those two matters when, in fact, the law says I've got to focus on the child's needs and this is a case where I'm struggling with those needs. I want to believe that these proceedings are a clear wake‑up call to the mother as to how important continued communication and cooperation with the Agency is so those needs of [T.] can be met. Does he have to be in the day to day care of the Agency to best met [sic] those needs? I'm struggling with that. ... (page 9) But with respect to [T.'s] needs, I'm concerned that priority be given so that counselling can take place, that there are no missed appointments so that we can go ahead and focus on those needs at the earliest possible day. There hasn't been a great deal of evidence before me as to how his needs can best be met whether he's in the day to day care of the Agency or whether he's in the day to day care of his mother under the supervision of the Agency. I, of course, have to consider the principles set forth in the Children and Family Services Act. The integrity of the family, the statutory interpretation of best interests, but it's got to be a positive relationship with the parent. The child's relationship with the relatives and the bonding that exists between the parents. Those are all factors. ...(page 10) In these circumstances, I'm going to order that [T.] remain in the care of the Agency and that a needs assessment be completed as soon as possible and that immediate efforts be made to make arrangements for the competent therapist to deal with the issues I've described in particular and any other ancillary needs that must be addressed. I would expect this matter to come back to the Court on May 9 at which time I would hope that there would be a plan in place for him to then be returned to his mother with a clear understanding of her responsibilities in order that [T.’s] needs can be attended to. ... (page 10) [emphasis added] [10] Having regard to the considerable deference that I must give to the trial judge’s assessment of the facts and the best interests of the child, I am not persuaded that there is clear error or other special circumstances requiring interference with the interim order and the continuing protection process in the Family Court. Given the close supervision of the agency, the various services in place, the ability to re-apprehend if necessary and the Family Court’s on-going involvement with the family in both protection files, I am not persuaded that T. would be at risk in his mother’s custody pending the appeal. [11] The agency has not shown that denial of the stay would harm T., or that the stay would better serve T.’s interests than would compliance with the trial judge’s interim order. I dismiss the application for a stay without costs. Roscoe, J.A.