Family and Children's Services of Annapolis County v. J.D.

Family and Children's Services of Annapolis County v. J.D. Court Court of Appeal Date 2004-01-30 Citation 2004 NSCA 15 Docket CA 214492 Judge/Registrar/Adjudicator Saunders, Jamie W. S. (Honourable Justice) (CA) Document Type Decision Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Family and Children’s Services of Annapolis County v. J.D. , 2004 NSCA 15 Date: 20040130 Docket: CA214492 Registry: Halifax Between: Family and Children’s Services of Annapolis County Appellant v. J.D. and R.R. Respondents Restriction on publication: s. 94(1) Children and Family Services Act. Judge: Saunders, J.A. Application Heard: January 29, 2004, in Halifax, Nova Scotia, In Chambers Held: Application for stay denied. Counsel: D. B. MacMillan, for the appellant Oliver Janson, for the respondent, J.D. The respondent, R.R. not appearing 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. Decision: [1] After considering counsels’ oral submissions I denied the appellant’s application, indicating that I was not satisfied there were circumstances of a special and persuasive nature sufficient to justify a stay of Chief Judge Comeau’s decision pending appeal. I directed that his decision stands unless or until otherwise ordered. I advised the parties that full written reasons would be filed shortly. These are my reasons. [2] As a preliminary matter counsel for the appellant, Mr. D.B. MacMillan, confirmed that the respondent, R.R. had been personally and properly served with the required notice and within the time prescribed by the Civil Procedure Rules. Based on that stipulation and the details provided I was satisfied that R.R. had proper notice of the appellant’s application and that it was appropriate to proceed in his absence. [3] Family and Children’s Services of Annapolis County (the “Agency” or the “appellant”) appeals from the decision of the Honourable Chief Judge John D. Comeau of the Nova Scotia Family Court, dated January 12, 2004, following a disposition hearing pursuant to s. 41(1) of the Children and Family Services Act (the “Act”) respecting the child, M.J.M.D., (hereinafter “the child”) born August (editorial note- date removed to protect identity) , 2001. The respondents, J.D. and R.R. are the natural parents of the child. [4] Today, the child is approximately twenty-nine months’ old. She was apprehended on March 11, 2003 and placed in protective custody by order dated July 8, 2003. She was then nineteen months’ old and so has been in the care of the Agency for about the last ten months. [5] In its notice of appeal filed January 26, 2004, the Agency lists ten grounds of appeal and claims additional relief in three respects. First, the Agency seeks a stay of Chief Judge Comeau’s decision pending the hearing of the appeal pursuant to CPR 62.10(2) and s. 49(3) of the Act. Second, the Agency seeks leave to adduce fresh evidence “relating to the events after the appealed decision” pursuant to s. 49(5) of the Act. Finally, the Agency seeks to vary the judgment of the Family Court so as to provide that the child be placed in the permanent care and custody of the Agency pursuant to s. 49(6)(c) of the Act. The Agency’s applications are opposed by the respondent, J.D.. [6] The question of seeking leave to adduce fresh evidence is best left to the panel assigned to hear the case. It should be brought upon notice in accordance with the Rules, supported by proper affidavit evidence that addresses the well recognized and essential legal requirements for such applications. So too will it be for the panel hearing the appeal to consider the merits of the Agency’s purported “variation” application. [7] The general authority to grant a stay of proceedings in this province is governed by s. 41(e) of the Judicature Act, R.S.N.S. 1989, c. 240 which provides that: In every proceeding commenced in the Court, law and equity shall be administered therein according to the following provisions: . . . (e) no proceeding at any time pending in the Court shall be restrained by prohibition or injunction but every matter of equity on which an injunction against the prosecution of any such proceeding might have been obtained prior to the first day of October, 1884, either unconditionally or on any terms or conditions, may be relied on by way of defence thereto provided always that nothing in this Act contained shall disable the Court from directing a stay of proceedings in any proceeding pending before the Court if it or he thinks fit, and any person, whether a party or not to any such proceeding who could have been entitled, prior to the first day of October, 1884, to apply to the Court to restrain the prosecution thereof, or who is entitled to enforce by attachment or otherwise any judgment, contrary to which all or any part of the proceedings have been taken, may apply to the Court thereof by motion in a summary way for a stay of proceedings in such proceeding either generally, or so far as is necessary for the purposes of justice and the Court shall thereupon make such order as shall be just; . . . [8] The court’s authority to issue a stay is governed by Civil Procedure Rule 62.10 which provides that: (1) The filing of a notice of appeal shall not operate as a stay of execution of the judgment appealed from. (2) A Judge on application of a party to an appeal may, pending disposition of the appeal, order stayed the execution of any judgment appealed from or of any judgment or proceedings of or before a magistrate or tribunal which is being reviewed on an appeal under Rules 56 or 58 or otherwise. (3) An order under rule 62.10(2) may be granted on such terms as the Judge deems just. . . . (5) Nothing herein prevents the staying of execution or proceedings by the court appealed from, as authorized by rule of court or by an enactment. [9] The well known test for the granting of stays in this jurisdiction was expressed by Hallett, J.A. in Fulton Insurance Agencies Ltd. v. Purdy (1990), 100 N.S.R. (2d) 341. There, at pp. 346-47 Justice Hallett stated: In my opinion, stays of execution of judgment pending disposition of the appeal should only be granted if the appellant can either (1) satisfy the Court on each of the following: (i) that there is an arguable issue raised on the appeal; (ii) that if the stay is not granted and the appeal is successful, the appellant will have suffered irreparable harm that it is difficult to, or cannot be compensated for by a damage award. This involves not only the theoretical consideration whether the harm is susceptible of being compensated in damages but also whether if the successful party at trial has executed on the appellant's property, whether or not the appellant if successful on appeal will be able to collect, and (iii) that the appellant will suffer greater harm if the stay is not granted than the respondent would suffer if the stay is granted; the so-called balance of convenience. OR (2) failing to meet the primary test, satisfy the Court that there are exceptional circumstances that would make it fit and just that the stay be granted in the case. [10] Application of the standard Fulton test is modified in matters involving the custody of children. As Chief Justice Clarke observed in Routledge v. Routledge, [1986] N.S.J. No. 196: In my opinion, there need to be circumstances of a special and persuasive nature to grant a stay. [11] A further explanation for modifying the Fulton approach when dealing with stay applications involving the custody of children was given by Flinn, J.A. in Children’s Aid Society of Halifax v. B.M.J. [2000], N.S.J. No. 405 at ¶ 31: ¶31 There is, at least, one very good reason why the test for granting an application to stay the execution of a judgment in a custody case is different. The question of custody of a child is a matter which peculiarly lies within the discretion of the judge who hears the case. The ultimate issue in such a case - the best interests of the child - is fact driven. The trial judge has the opportunity, generally denied to an appellate tribunal, of seeing the parties and investigating the child's circumstances. For these reasons the court of appeal shows considerable deference to the decision of a trial judge in custody matters. The court of appeal will only interfere with such a decision where the trial judge has gone wrong in principle, or has overlooked material evidence (see Nova Scotia (Minister of Community Services) v. S.M.S. et al. (1992), 112 N.S.R. (2d) 258). [12] In considering whether the applicant has demonstrated circumstances of a special and persuasive nature sufficient to justify the granting of a stay, I must of course consider the risk of harm to the child, while at the same time taking into account the rights of the parties, all within the context of a potential, but uncertain, result on appeal. In this respect Cromwell, J.A.’s comments (in Chambers) in Minister of Community Services v. B.F., [2003] N.S.J. No. 421 admittedly within the context of an application for a stay of proceedings pending an application for leave to appeal to the Supreme Court of Canada (Supreme Court Act, R.S.C., c. S-19, s. 65.1) are helpful: ¶ 13 . . . this case involves the care and custody of children. It follows that the decision to grant or deny a stay must weigh and give effect to their best interests. In my view, this requirement leads to some modification of the irreparable harm aspect of the test. The primary focus in a case like this should be on the risk of irreparable harm to the children while, of course, taking due account of the rights of the parties. In addition, given the need for stability and finality in child custody matters, there will generally need to 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: see, for example, Children’s Aid Society of Halifax v. B.M.J. (2000), 189 N.S.R. (2d) 192; N.S.J. No 405 (Q.L.)(C.A. Chambers) at paras. 29 - 30 and the cases cited there. . . . ¶ 19 The fundamental issue in an application of this sort is to balance the risks of harm — particularly harm to the children — in light of the possible, but as yet unknown, outcome of the application for leave to appeal. To paraphrase R. J. Sharpe’s description of the central problem posed by interlocutory injunctions (of which the stay pending appeal may be viewed as an example), the issue may be best understood in terms of balancing the relative risks of granting or withholding the remedy. 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. This 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: R. J. Sharpe, Injunctions and Specific Performance (Canada Law Book Inc.: Aurora, updated to November, 2003) at para. 2.90 - 2.100. [13] As Bateman, J.A. observed in D.D. v. Minister of Community Services, [2003] N.S.J. No. 146 (in Chambers), the required analysis is more than a mere balancing of the interests. ¶11 This is not to suggest, however, that the determination of a stay application reduces to a simple balancing of interests. The decision of the trial judge is deserving of considerable deference. He has the opportunity of observing the parties and hearing the evidence. This is a distinct advantage, unavailable to the appellate court. This Court has commented that nowhere is the advantage of the trial judge greater than in family proceedings. . . . [citing again Flinn, J.A.’s remarks in B.M.J., supra.] [14] Other decisions of this court have provided examples of events that might in a given case - having regard to the facts of that particular case - amount to “circumstances of a special and persuasive nature,” for example: - where it is apparent that there was likely an error in the trial process and for that reason the trial will probably succeed (Ryan v. Ryan (1999), 175 N.S.R. (2d) 370 (C.A.)) - a material change in circumstances (to which I would add the qualifying words “amounting to a risk to the child”) (B.M.J., supra.) - evidence that any of the conditions imposed by the trial judge as part of the impugned order have not, or will not, be met (B.M.J.), - evidence from which I might conclude that harm is likely to come to the child if she were turned over to her mother in accordance with the terms of Chief Judge Comeau’s order (B.M.J.), or - where the child is at risk of more harm if the stay were denied, than if it were granted (Ryan). [15] After carefully considering the record, as well as the submissions of counsel, I am not persuaded that any of these potentially qualifying events is made out, or that there are any other features constituting circumstances of a special and persuasive nature, such as to justify a stay of Chief Judge Comeau’s disposition order pending appeal. [16] There can be no question that the respondent J.D.’s problems with drugs and alcohol, and the difficult and often tumultuous relationships she has had with other male companions have caused great concern to the Agency, its child protection officers, police officers, physicians, other health care professionals and judges who have had to deal with J.D. and matters concerning her children. However, it seems to me that all of those legitimate concerns were thoroughly addressed by the trial judge in his lengthy decision (39 typed pages) dated January 12. 2004. [17] Comeau, C.J. Fam. Ct. carefully reviewed the evidence presented by the Agency and then went on to consider and assess the evidence offered by the respondent J.D. who was supported in her plan on a host of important issues by a number of witnesses including professional experts. [18] I need not reiterate those portions of their evidence in any detail. It is enough to recall that J.D.’s physician, Dr. Barkwell testified, and his letters detailing his meetings and assessment of J.D. and the child were filed in evidence. Dr. Barkwell reported to having seen J.D. on her own on more than fifty occasions and the child another dozen times, a series of appointments which he viewed as “ample opportunity to get to know J.D. and assess changes in her attitudes and behaviour over time.” While Dr. Barkwell was certainly aware of the respondent’s history of problems with addictions in her life, he formed the professional opinion that the respondent remains committed to turning her life around and to a “considerable extent has succeeded in doing so.” His assessment of the child confirmed that her physical examination was entirely within normal limits and that “[i]n terms of her development, she meets all the milestones for her age . . . I see no risk to [the child], and considerable benefit to both her and her mother, in returning her to her mother’s care . . . ”. [19] The great strides made by the respondent were all confirmed by Ms. Jean Morrison, an addictions counsellor and clinical therapist who has worked with the respondent since April, 2003 and also by Ms. Eleanor D. MacKlin, Ph.D., a marriage and family therapist, who has provided assistance to the respondent in reshaping her life and resuming care for her little girl. [20] Evidently J.D. has also commenced a serious and loving relationship with R.H., a man she first met years ago in the United States and who reconnected with her last year. They are both attending marriage counselling. R.H. testified and appears to have impressed the trial judge with his understanding, sensitivity and the ongoing support he is prepared to offer to J.D. and the child. The evidence before Chief Judge Comeau was that R.H. and the respondent were contemplating marriage and that R.H. had given up drinking so that their lifestyle would be alcohol free. [21] Chief Judge Comeau also had the benefit of listening to J.D.’s testimony in reaching his own conclusions as to her maturity, progress and commitment to improvement. It seems to me significant as well that the child’s father, that is the respondent R.R., who made the original complaint that led to the apprehension of the child, expressed confidence in R.H., testifying that he would prove to be a valuable asset in providing stability and security for the respondent J.D. and the child. [22] Not only did the trial judge enjoy the benefit of hearing and seeing these witnesses over several days of hearings, he also assessed the merits of the plans put forward for the care of this little girl, and after considering the leading jurisprudence determined that the child’s welfare would best be served if she were returned to her mother under friendly supervision by the agency for a period of twelve months upon conditions in accordance with s. 43(1) of the Act. [23] The trial judge imposed very strict terms. They included ordering the respondent to refrain from the use of alcohol and non-prescription drugs; to attend AA meetings and counselling sessions with her professional health care workers as arranged; and to submit to random urine and blood tests as required by the Agency. Furthermore, the trial judge ordered that the child’s father R.R. was to have no contact with the respondent J.D., either personally or by telephone for any reason including access. The Agency was given permission to visit any place where the child might be at any particular time to further ensure the child’s best interests. A breach of any of the order’s strict terms was to be considered “as contempt in the face of the Court” and dealt with accordingly. [24] From my review of the record, it seems evident that the trial judge was satisfied the child has bonded with her mother and that J.D., who clearly loves her daughter, is able to provide a stable, secure and nurturing environment for the little girl. It has not been demonstrated to my satisfaction that the child would be at risk if placed with her mother pending the appeal. In fact, with the full advantages available to a trial judge, Chief Judge Comeau decided it was in the child’s best interests that she be placed with her mother and not remain in foster care. This child has spent the majority of her young life with her mother and while it is true that denying the Agency’s application for a stay will require the child to be moved, the trial judge considered that prospect and decided it would not outweigh all the other factors favouring the child’s return to her mother. [25] J.D. was the primary caregiver of the child for the first year and a half of her life. She has had frequent contact with her daughter while the child was in foster care. The child is attached to her mother and evidently Chief Judge Comeau was satisfied that J.D. would provide a stable environment, with her own network of support and a plan that would be in the child’s best interests. [26] The affidavit evidence submitted by the appellant in support of the desired stay was primarily centred around R.R.’s drinking and behaviour. It seems to me that Chief Judge Comeau accounted for this contingency by terminating any contact between J.D. and R.R. With respect, the Agency’s affidavit does not raise any new issues the trial judge would not have considered. J.D. has a substance abuse problem that will be closely monitored for the next twelve months. Her present partner, R.H. impressed the trial judge with the role he intends to play in both J.D. and her daughter’s lives. With the views expressed by J.D.’s physician and other health care professionals, the trial judge was well aware of her support in the community and the substantial strides she continues to make in effecting a positive change in her life. All seem to recognize that this is her chance, perhaps her last chance, to preserve a true, loving and continuous relationship between mother and daughter. [27] There is no evidence of any threat of physical harm to the child. The risk from the Agency’s point of view is that if J.D. were to abuse drugs or alcohol her daughter might be neglected. However, Chief Judge Comeau accounted for that contingency by imposing random urine testing, and random visits, and permitting the Agency to seek a variation should there be any breach of the terms of his order. [28] Counsel for the appellant offered extracts from the actual case reports of earlier decisions cited by Comeau, C.J. Fam. Ct. in his decision, to support their submission that he had misconstrued the law. With respect, after checking the excerpts provided and reviewing his decision as a whole, I am unable to conclude that the trial judge misconstrued or misapplied binding authority. It may well be that errors in typing, simply leaving out a single word, account for the discrepancies between the text of quoted authority in Chief Judge Comeau’s decision and that which is actually recorded in the case reports. In any event, for the purposes of dispensing with the stay application, I am not persuaded that much weight ought to be attached, at this stage, to the Agency’s complaint. [29] For all of these reasons the applicant has failed to demonstrate that there are any circumstances of a special and persuasive nature meriting the exercise of my discretion in ordering a stay of the trial judge’s decision and order. In keeping with the statutory requirements I fixed dates as follows: Appeal Book: February 20, 2004 Appellant’s Factum: March 1, 2004 Respondent’s Factum: March 15, 2004 Appeal Hearing: Friday, April 16, 2004, 2:00 p.m. [30] I direct that the Registrar ensure delivery of a copy of this decision to the respondent, R.R. at the address given in his correspondence to the court so that he will be aware of these deadlines, should he choose to appear. There will be no order for costs. Saunders, J.A.