R.K. v. Family and Children's Services of Cumberland County

R.K. v. Family and Children's Services of Cumberland County Court Court of Appeal Date 2006-02-13 Citation 2006 NSCA 19 Docket CA 261055 Judge/Registrar/Adjudicator Fichaud, Joel E. (Honourable Justice) (CA) Document Type Decision Decision Content NOVA SCOTIA COURT OF APPEAL Citation: R.K. v. Family and Children’s Services of Cumberland County, 2006 NSCA 19 Date: 20060213 Docket: CA 261055 Registry: Halifax Between: R.K. Applicant v. Family and Children’s Services of Cumberland County Respondent Restriction on publication: Pursuant to s. 94(1) Children and Family Services Act. Judge: The Honourable Justice Joel E. Fichaud Application Heard: January 30, 2006, in Halifax, Nova Scotia, in Chambers Held: Application for extension of time to file notice of appeal dismissed. Counsel: Luke A. Craggs, for the applicant Cindy Bourgeois, for the respondent 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] This is an application to extend the time for filing a notice of appeal. After a five-day hearing in the Family Court, Judge Milner rendered an oral decision on October 28, 2005, followed by orders on November 15, 2005. The orders placed two children, aged 2 and 3, in the permanent care and custody of the Family and Children Services of Cumberland County (“Agency”). The applicant R.K. is the children’s father. Under s. 49(1) of the Children and Family Services Act, S.N.S. 1990, c. 5, as am. (“CFSA”), a notice of appeal must be filed within 30 days of the order, i.e. by December 15, 2005. No notice of appeal was filed by that date. On January 12, 2006 R.K. filed this application. [2] At the hearing I asked counsel to provide a copy of Judge Milner’s oral decision. The decision was transcribed on February 6, 2006 and was followed by written submissions from counsel. The Test for Extension [3] In Jollymore Estate v. Jollymore (2001), 196 N.S.R. (2d) 177 (CA in chambers) Justice Saunders summarized the test for extensions in civil appeals outside the CFSA: [22] In this province, reference is often made to the so-called three part test for extensions of time in cases such as this. It is said that in order to qualify for such relief the court must be satisfied that: (1) the applicant had a bona fide intention to appeal when the right to appeal existed; (2) the applicant had a reasonable excuse for the delay in not having launched the appeal within the prescribed time; and (3) there are compelling or exceptional circumstances present which would warrant an extension of time, not the least of which being that there is a strong case for error at trial and real grounds justifying appellate interference. Flavoring this test is the broader question of “whether justice requires that the application be granted”: Tibbetts v. Tibbetts (1992), 112 N.S.R. (2d) 173 at ¶ 14 (CA Chambers), per Hallett, J.A.; Jollymore at ¶ 24. To the same effect: McCarron v. Houghton (2003), 220 N.S.R. (2d) 22 (CA Chambers), per Oland, J.A., at ¶ 5. [4] The proposed appeal is from permanent care orders under the CFSA. The CFSA adds additional elements to the extension test, as described by Justice Cromwell in Nova Scotia (Minister of Community Services) v. S.E.L. (2002), 205 N.S.R. (2d) 104, 2002 NSCA 62, at ¶ 10-11. [10] In many civil cases, extensions of time are often granted quite readily especially where the delay is short and the party seeking the extension is not represented by counsel. However, extensions of time for appealing under the Act call for the consideration of at least two special factors. [11] The first is that, as in all proceedings under the Act, the best interests of the child or children are paramount. It is not a matter of doing justice simply between the appellants and the respondent, but of serving the best interests of the child who is the subject of the proceedings. Secondly, the Act makes it clear that time limits are important so that the child’s sense of time is respected. Nowhere in the Act is this more clear than with respect to appeals. The Act has an extraordinary and virtually unique requirement that appeals must be heard by the Court of Appeal in 90 days, with the possibility of a 60 day extension, from the date of the filing of the notice of appeal. The time limit for hearing the appeal runs from the filing of the notice of appeal; it follows that any extension of the time for filing the notice of appeal in effect extends the time for hearing the appeal. In other words, extending the time for filing the notice of appeal accomplishes indirectly what the Act does not specifically provide for -- an extension of the time within which the appeal must be heard. [5] The two principles cited in S.E.L. flow from the CFSA and are complementary. The CFSA s. 2(2) states: In all proceedings and matters pursuant to this Act, the paramount consideration is the best interests of the child. The “proceedings” in s. 2(2) include this extension application. The CFSA’s preamble states: Children have a sense of time that is different from that of adults and services provided pursuant to this Act and proceedings taken pursuant to it must respect the child’s sense of time. A delay that impacts the parent only minimally may exhaust a full formative term for an infant. So s. 49 of the CFSA strictly limits the time for appeal. Respect for the child’s sense of time sustains the child’s best interest. [6] In other civil proceedings the named litigants may be the only parties whose interests are relevant to an extension application. In a disposition proceeding under the CFSA, the child’s interests trump the interests of the parents and Agency. So I should first consider the children’s interests in the extension application before folding in the components of the standard Jollymore test. This essentially is what was done in S.E.L., at ¶ 12-28. The Children’s Interests [7] The affidavits initially filed by R.K. in support of this application discuss R.K.’s intent to appeal, the steps he and his counsel took toward filing a notice of appeal, and why the notice was not filed before the time limit. R.K.’s initial affidavit says he was “not happy with [the] outcome of the trial”.These affidavits say nothing about the best interests of the children or the merits of the proposed ground of appeal. After the hearing of this application R.K. submitted copies of his affidavit and parenting plan which had been tendered to the Family Court, and which were considered in Judge Milner’s decision. [8] Judge Milner noted the violent history between R.K. and the children’s mother. He related the evidence of the children’s special needs: [10] The Agency’s position as I’ve alluded to is that they feel the children should be placed in permanent care with no access. The children, in the Agency’s views have special needs, those special needs include significant medical conditions, which require a structure to ensure that the medical issues are properly dealt with. The medical issues or conditions concern problems with ears, lungs, particularly asthma, bowel disorder, attachment disorder, and possibly fetal alcohol syndrome which is being assessed now. The attachment disorder connected at least partly in the Agency’s view to having been exposed [R.] I think specifically, having been exposed to domestic violence between his parents. [9] The court repeatedly had ordered R.K. to participate in the New Directions Program, a 10-week course addressing family violence. Judge Milner found: [26] The evidence is clear, including the evidence of [R.K.], that he did not do what was ordered with respect to the New Directions program. [R.K.] explained, I think when I asked him whether he was open to it even now, to taking the New Directions program, he explained here in court that he didn’t think the program was fair, that it painted him or men generally as being at fault and he seemed pretty clear even in this week in court that he had no use for that program and would not in all likelihood participate in that. After noting that R.K. attended another anger management program, Judge Milner discussed the difference between the two programs: [30] [Ms. Manuel] was asked about the anger management course and she said “this is not the New Directions”. The anger management as she understood it was a five week course with five sessions. New Directions was ten weeks, and it was designed I think specifically to deal with domestic violence and there was a difference and she discussed with [R.K.] the difference and she told him that he should still attend as he was ordered to attend the New Directions program. [10] Judge Milner commented on the prospects if the children returned to R.K.’s custody: [36] But regardless of that, leaving that aside completely, the possibility of various outcomes of the criminal court proceedings, there would still have to be, in the best interests of the children, I think there would have to be a need for ongoing association, directly or indirectly, between [R.K.] and [the children’s mother], and there’s no reason to think based on the evidence that I have heard that the risk of violence would disappear during any encounter between [the children’s mother] and [R.K.] especially if there were disagreements with respect to the care and upbringing of the children. [11] Judge Milner also noted that the maximum time limit for Agency supervision under the CFSA was near expiry. So the choice was permanent care and custody to the Agency or return of the children to one or both parents without Agency supervision. Judge Milner concluded: [48] And my view is that the best interests of [the children] would be best served by placing them in the permanent care and custody of Family and Children’s Services of Cumberland County and I order that now and given the intention of the Agency to proceed towards possible adoption, the order will have no term providing for access to the parents. [12] The Agency filed an affidavit of Ms. Manuel, the Agency social worker responsible for the protection file relating to the two children. Ms. Manuel’s affidavit says: (a) The two boys are R.H., born on January (*), 2002 and B.H. born on April (*), 2003. (*editor’s note- dates removed to protect identity) (b) In July of 2004 the Agency commenced a protection application against R.K. and the children’s mother, S.H. As a result of that application, the children have been in the care and custody of the Agency since August 2004 and have since resided continually in the same foster home. (c) The child protection application followed concerns about domestic violence between the parents and the mother’s drug and alcohol abuse. (d) Except when R.H. was a small infant, R.K. has neither resided with the children nor been a regular care provider. R.K. has had little regular contact with the younger child B.H. (e) The children have special medical and psychological needs requiring attention from a family physician, pediatrician, neurologist, ENT specialist, occupational therapist, bowel specialist, early interventionist, speech therapist, eye doctor and a developmental psychologist. The boys frequently must travel to Moncton, Truro and the IWK Hospital in Halifax for medical attention. (f) R.K. is a commercial fisherman who works very long hours during significant portions of the year. During the Agency’s involvement, R.K. was unable to make himself available for large blocks of time to exercise access with his children. (g) The Family Court repeatedly ordered R.K. to address his aggression and attachment deficiencies by attending domestic violence programs. R.K. failed to attend the programs, notwithstanding the court orders. (h) Since the orders for permanent care, the children have been prepared for adoption. This involves grief counselling for the loss of former relationships (including their foster parents with whom they have resided for over 17 months), final access visits with their older siblings and parents, and therapy for the transition to new adoptive parents. These visits occurred before notice to the Agency of R.K.’s intent to apply for an extension to file a notice of appeal. (i) Because of the children’s special needs, the Agency planned to place them for adoption as a sibling group. These children are presented at a “special needs adoption day” where prospective adoptive parents can review the children’s information and video tapes. These are prospective parents who have indicated a willingness to consider adoption of children with special needs. R.H. and B.H. are scheduled for a special needs adoption day in March in 2006 with a number of prospective adopting couples. The next special needs adoption day is in the autumn of 2006. [13] I accept this uncontradicted evidence in Ms. Manuel’s affidavit. [14] In my view, based on this evidence, an extension is not in the best interests of the children. The six-month delay would not, as R.K.’s counsel suggests, simply maintain the status quo. For a three-year old six months is a stage of life, and I must recall the statutory admonition about the child’s sense of time. A six month extension of an infant’s bonding with foster parents preceding their separation from the children, and a similar delay in permanency planning and adoption, might hinder the children’s emotional development. Since the Family Court order and expiry of the appeal period, the children have stepped lightly onto the path toward family stability. They have undergone therapy to prepare both for their separation from their long term foster parents and blood relatives and for adoption by new parents. I cannot just rewind the therapy. The distress from a reversal could bruise these emotionally fragile children. The Other Criteria [15] Consideration of the Jollymore factors does not alter my view. [16] Judge Milner gave an oral decision on October 28, 2005 directing that the two children be in the permanent care and custody of the Agency, without access to either parent. The formal order followed on November 15, 2005. [17] Before the appeal period expired, R.K. had a bona fide intent to appeal. According to Ms. Manuel’s affidavit, on November 14, 2005 R.K. told Ms. Manuel that he would appeal. [18] Ms. Manuel states that she replied: . . . I directed [R.K.] to speak with his lawyer quickly as there was a deadline for filing an appeal. I explained to [R.K.] that it was important for the Agency to resolve plans for [R.H.] and [B.H.] as quickly as possible, given the fact that they had been in foster care for an extended period of time and it was essential that they had some certainty with respect to their future. Ms. Manuel deposed that, after the appeal period expired without a notice of appeal, the Agency proceeded with the permanency planning described earlier. [19] R.K. has filed an affidavit of Robert Rideout, a Moncton lawyer. Mr. Rideout’s affidavit says that on November 29, 2005 he received a Legal Aid certificate to represent R.K. on the appeal. According to Ms. Bourgeois’ affidavit, in early December of 2005 before the appeal period expired, the Agency’s lawyer told Mr. Rideout that the Agency was anxious to proceed with permanency planning, that any appeal should be filed within the 30 day period, and that the Agency would not consent to an extension. According to Mr. Rideout’s affidavit: I had difficulty obtaining the appropriate documents to commence this appeal, because I had not done it before, and I also had a significant trial schedule, wherein I was in court every day until Friday, December the 23rd. I was trying to ascertain what I would have to do to appear before the Court. [20] Mr. Rideout’s comments do not establish a reasonable excuse for the delay. Filing a notice of appeal does not require an appearance. The process can be discerned from s. 49 of the CFSA and Civil Procedure Rule 62. Mr. Rideout had a Legal Aid certificate on November 29, sixteen days before the appeal period expired. Before the time limit expired, R.K. and his counsel had each been told directly, by Ms. Manuel and the Agency’s counsel respectively, that any appeal should be filed before the expiry of the time limit because of the impending permanency planning for the children. A lawyer’s trial schedule is a frail excuse for not filing a notice of appeal over 16 days after retainer in a time sensitive matter involving children’s welfare. [21] R.K.’s alternative position is that he had instructed counsel to appeal within time, and that counsel’s failure to do so is not R.K.’s fault. I will give R.K. the benefit of the doubt and assume this is a reasonable excuse. [22] Dovetailing the paramount interests of the children and the Jollymore factors focuses on whether the appellant has a substantial case on the merits based on the children’s best interests. Here there are no “compelling or exceptional circumstances” to warrant an extension of time such as “a strong case for error at trial and real grounds to justify appellate interference” under the Jollymore formulation. The proposed ground of appeal should be realistic and substantial: S.E.L. ¶ 15-23. The draft notice of appeal submitted by R.K. says simply that the Family Court “failed to give appropriate consideration to R.K.’s parenting plan and gave undue consideration to his failure to attend anger management class and access visits”. [23] The primary reason for the permanent care orders was domestic violence. This resulted in repeated orders that R.K. attend the New Directions Program. The orders are in evidence. His non-attendance is in evidence and was acknowledged in Judge Milner’s decision. R.K. chose to disregard the court’s repeated directions that addressed the concern leading to the orders which he now seeks to appeal. There is nothing before me to support any “strong case” that the permanent care orders, based on this concern, reflect an ill-founded assessment of the children’s best interests. Conclusion [24] An extension of the time limit for an appeal is not in the best interests of the two children. There are no substantial countervailing factors. I would dismiss the application. Fichaud, J.A.