Family & Children's Services of Cumberland County v. D.M.

Family & Children's Services of Cumberland County v. D.M. Court Court of Appeal Date 2006-03-06 Citation 2006 NSCA 28 Docket CA 262934 Judge/Registrar/Adjudicator Fichaud, Joel E. (Honourable Justice) (CA) Document Type Decision Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Family & Children’s Services of Cumberland County v. D.M., 2006 NSCA 28 Date: 20060306 Docket: CA 262934 Registry: Halifax Between: Family and Children’s Services of Cumberland County Appellant v. D.Mc. and D.M. Respondents - and - S.Mc. and J.F. Third Parties/Respondents Restriction on publication: Pursuant to s. 94(1) Children and Family Services Act Judge: The Honourable Justice Fichaud Application Heard: March 2, 2006, in Halifax, Nova Scotia, In Chambers Held: Application for stay dismissed. Counsel: Cindy A. Bourgeois, for the applicant/appellant Mary Ellen Nurse and Alexander Embree, article clerk, for the respondents, S. Mc. and J.F. 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] Family and Children Services of Cumberland County (“Agency”) applies for a stay of execution of the Family Court’s disposition order for an infant child. Background [2] In February 2006, Judge Milner of the Family Court conducted a four day hearing to consider the disposition of M.Mc., a female child aged 17 months. M.Mc.’s parents are the respondents, D.M. and D.Mc. Judge Milner noted that D.M., the child’s father, presented no parenting plan and, at the opening of the hearing, said he would not participate in the proceeding. D.Mc., on the other hand, made it clear to Judge Milner that she wished to be involved in her daughter’s life. Judge Milner considered the evidence respecting D.Mc.’s parenting abilities and concluded: So I’m not at all confident that if this young child was placed with her mother that she would be able to properly care for her and provide the kind of stability which I think the young child needs. ... So far as [D.Mc.] goes and [D.M.], I think it is necessary to remove the child or not to allow the child to live in their care. [3] Judge Milner noted that, if there was no other family option for M.Mc.’s care, “I would likely have placed [M.Mc.] in the permanent care and custody of Family and Children’s Services.” [4] There was, however, another option for M.Mc.’s placement. The respondent S.Mc. is D.Mc.’s mother, and the child’s grandmother. S.Mc.’s fiancee is the respondent J.F. S.Mc. and J.F. participated in the Family Court hearing and proposed that they raise the child as their own. [5] The Agency opposed the placement with S.Mc. and J.F. The Agency adduced evidence that, some years ago, S.Mc. had been involved in an abusive relationship with a former spouse. S.Mc. and her former spouse T.B. had filed child protection complaints against each other raising concerns about the welfare of S.Mc.’s own children. S.Mc. had spanked her children. There was also evidence that, before her relationship with J.F., S.Mc. had engaged in inappropriate sexual conduct in the presence of her own child. The Agency requested an order that M.Mc. be in the permanent care and custody of the Agency. [6] Judge Milner considered the Agency’s evidence and said the following respecting S.Mc.: With respect to her own abilities to be a parent, she may have made some mistakes but I think she’s learned something from those mistakes, something that will give her abilities in the future to better care for her children than perhaps she has in the past. I’m aware that the relationship that she had with her former partner does necessarily continue in the sense that she continues with him to be a parent of certain children and they are still growing up between the two homes. She has, importantly, I think, entered into a new relationship which has been a positive influence on her life. She and [J.F.] have been close friends and partners going back until the year 2002, and it’s my conclusion or impression or both from having listened and read all the evidence, that her situation since she’s been involved with Mr. [J.F.] has been one without abuse or violence and he has been and it seems will continue to be a strong support to her in her discharge of duties to her children as parents. [Mr. F.] himself helped to raise four children, including one girl. And his evidence is that he’s done a fairly good job of doing that, along with his former wife, and in addition, there’s no evidence to the contrary. The children I’m told, his children, that is, support him in his new relationship and he has maintained contact with his children and with their children. Their plans, the third parties, would be to raise [M.Mc.] as their own child in the sense that they would see themselves as being the decision-makers, the persons in the same kind of position of control that a parent usually is in our society, that is they would make the important decisions in the upbringing of the child and they would do that without interference and they would try to prevent interference from anyone else. [7] After further reviewing the circumstances of the relationship between S.Mc. and J.F., Judge Milner concluded: So I think it would be in the best interest of [M.Mc.] that she be able to live with Mr. [J.F.] and [S.Mc] under some arrangement that fits within the procedures set out in both statutes. [8] Judge Milner ordered that, under the Maintenance and Custody Act, R.S.N.S. 1989, c. 160 and the Children and Family Services Act, S.N.S. 1990, c. 5 (CFSA) the child M.Mc. be placed in the interim care and custody of S.Mc. and J.F. The interim custody was subject to both continuing supervision of the Agency and a review hearing before Judge Milner scheduled for May 9th, 2006. The order provided that the Agency supervision included two visits per month to the home of S.Mc and J.F. Counsel for S.Mc. and J.F. acknowledged at the hearing of this application that those visits could be unannounced and, if the Agency wished, last a full day. [9] The Agency appealed. The hearing of the appeal is scheduled to be heard on June 5, 2006. The Agency has applied for a stay of execution of Judge Milner’s order until the determination of this court on the appeal. In the meantime, the Agency has declined (without a stay) to comply with Judge Milner’s order issued on February 23, 2006. So M.Mc. remains with the Agency today. Legal Principles [10] Section 49(3) of the CFSA and Civil Procedure Rule 62.10 govern stays of execution. [11] In Fulton Insurance Agency Ltd. v. Purdy (1991), 100 N.S.R. (2d) 341 (C.A.), at ¶ 28 Justice Hallett stated the familiar test which governs stays of execution under Rule 62.10. To summarize, a stay may be granted if the applicant shows either (1) an arguable issue for the appeal, that there would be irreparable harm from denial of the stay, and that the balance of convenience favours the applicant or (2) there are exceptional circumstances. [12] In child protection cases these principles are altered. 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. This stay application is a “proceeding” under the CFSA. So the best interests of M.Mc. govern. [13] In D.M.F. v. Minister of Community Services, 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 NSCA 125 at paras.13, 19, and 22, by Justice Saunders in Family and Children’s Services of Annapolis Co. v. J.D., 2004 NSCA 15 at paras. 10 - 14, Justice Bateman in D.D. v. Nova Scotia (Minister of Community Services), 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. [14] I will apply those principles to this application. Application of Principles [15] The key issue is whether denial of the stay would harm M.Mc., as stated in D.M.F. ¶ 20. [16] The Agency filed an affidavit of a social worker, Lisa Butt. Ms. Butt reiterates the concerns which were presented at the hearing before Judge Milner. These include concerns about physical abuse suffered by S.Mc.’s children during S.Mc.’s earlier relationship with T.B., and accompanying child protection references to the Agency or to the New Brunswick child protection authorities. These also include suggestions of inappropriate sexual conduct by S.Mc. viewed by her child. Ms. Butt’s affidavit concludes: [33] The stay is being sought at this time given what this Agency views as substantial risk of placing [M.Mc.] in the Third parties’ home pending the outcome of an appeal in this matter, namely: a) [M.Mc.] does not know the Third parties [S.Mc. and J.F.], and has demonstrated marked shyness towards, and a difficulty interacting with, the Third parties during the two visits she has had with them since birth. The transition from the foster home immediately into the Third parties care will likely be an extremely difficult and traumatic transition for [M.Mc..]; b) there is a high degree of uncertainty regarding the documented child protection concerns regarding [S.Mc.] including her usage of physical discipline, and her documented neglect of her own children; c) there is uncertainty regarding what type of interaction will occur between [M.Mc.] and other children in the household, especially given those children’s history of being exposed to repeated domestic violence and physical abuse; d) there is uncertainty with respect to potential upheaval in the Third parties’ household given the ongoing conflict between [S.Mc.] and her ex-spouse [T.B.] with respect to the care and custody of their children, which may impact on [M.Mc.]. [17] While the matters set out in Ms. Butt’s affidavit give cause for concern, they were in evidence before Judge Milner. As counsel for the Agency acknowledged at the hearing of this application, the Agency’s evidence in support of the stay application basically repeats the evidence presented to the Family Court. [18] Judge Milner’s decision concluded that those concerns were no longer imminent. He determined that the instances of domestic violence were primarily attributable to S.Mc.’s former partner T.B. who is no longer in the household. He found that J.F. was a gentleman of integrity who had successfully raised his own children, and that his mollifying influence on S.Mc. would result in a supportive household in which to raise M.Mc. He concluded that living with S.Mc. and J.F. was in the child’s best interest. [19] I begin with those findings by Judge Milner. He considered the Agency’s evidence. The Agency has produced no pertinent evidence except what was before Judge Milner. As indicated by the case law cited earlier, (D.M.F. ¶ 15), a judge on a stay application under the CFSA shows substantial deference to the trial judge’s findings in this fact driven analysis. [20] Ms. Butt’s affidavit concludes with ¶ 33 quoted earlier, which identifies a culminating risk described as a series of uncertainties. There is “a high degree of uncertainty” concerning the child protection concerns, “uncertainty” regarding the interaction between M.Mc. and the other children in the household and “uncertainty” concerning this continuing conflict between S.Mc. and her former spouse. There would also be a transitional issue. With respect, such uncertainties are insufficient to deflect the substantial deference due to the findings of the trial judge on the very subject of those concerns. [21] As noted in D.M.F. ¶ 20, the applicant for stay must establish that denial of the stay would harm the child. The trial judge heard and saw the witnesses and concluded that a placement with S.Mc and J.F. would be in M.Mc.’s best interest. Ms. Butt’s affidavit does not dislodge the deference due to that finding. The Agency has not shown that interim placement of M.Mc. with S.Mc. and J.F. until the review hearing in May or the appeal hearing in June, and subject in the meantime to the Agency supervision, would harm the child. [22] I dismiss the Agency’s application without costs. Fichaud, J.A.