Family & Children's Services of Annapolis County v. J.M.M.

Family & Children's Services of Annapolis County v. J.M.M. Court Court of Appeal Date 1997-06-12 Citation 1997 NSCA 120 Docket CA 136806 Judge/Registrar/Adjudicator Flinn, Edward J. (Honourable Justice); Hart, Gordon L.S. (Honourable Justice); Freeman, Gerald B. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - Family & Children's Services of Annapolis County v. J.M.M. - 1997 NSCA 120 - 1997-06-12 - Library Sheet Decision Content C.A. No. 136806 NOVA SCOTIA COURT OF APPEAL Cite as: Family & Children's Services of Annapolis County v. J.M.M., 1997 NSCA 120 FREEMAN, HART AND FLINN, JJ.A. BETWEEN: FAMILY & CHILDREN'S SERVICES ) OF ANNAPOLIS COUNTY ) W. Bruce Gillis, Q.C. ) for the Appellant Appellant ) ) - and - ) ) Theresa C. Rowe ) for the Respondent J. M. M. and ) L. M. ) ) ) Respondent ) Appeal Heard: ) June 12, 1997 ) ) ) Judgment Delivered: ) June 12, 1997 ) THE COURT: Appeal dismissed per oral reasons for judgment of Freeman, J.A.; Hart and Flinn, JJ.A. concurring. Editorial Notice Identifying information has been removed from this electronic version of the judgment. The reasons for judgment of the Court were delivered orally by: FREEMAN, J.A.: When nine-year-old M.’s parents separated in late 1996 they consented to a joint custody order under which he was to alternate between parents on a weekly basis; the mother began residing with her friend M. and M. complained to his father that M. had touched him inappropriately. The appellant agency apprehended M., alleging pursuant to s. 22(2)(c) and (d) of the Family and Children’s Services Act S.N.S. 1990 c. 5 he had been sexually abused and that there was a substantial risk of further sexual abuse. The mother initially thought M.’s father had persuaded him to make the complaint and did not acknowledge a risk of further harm. An interim hearing to determine if there are reasonable and probable grounds for an apprehension must be held within five days of the apprehension pursuant to s. 39(1) of the Act. This “five day hearing” was held before Family Court Judge Robert Levy on February 5, 1997; the only evidence was the affidavit of a representative of the agency, Edie Ross. The respondent mother was present to give viva voce evidence but there was no time to hear her. Family Court Rule 21.08 (5) provides: 21.08 (5) In determining whether there are reasonable and probable grounds to believe that the child is in need of protective services pursuant to sections 39(2) and (3), the court shall decide the question solely upon any affidavits filed by any party, unless leave of the court is granted to hear viva voce evidence. At the conclusion of the five-day hearing Judge Levy issued an order: On an interim basis that there are reasonable and probable grounds to believe that the male child, M. . . . , born June *, 1987, is a child in need of protective services subject to the right of either respondent to lead evidence on the issue of reasonable and probable grounds. The interim hearing was adjourned to February 25, 1997, at which time Judge Levy considered further affidavits and viva voce evidence and dismissed the Agency’s application. The agency has appealed, arguing that Judge Levy’s judgment of February 5 was without jurisdiction pursuant to s. 39 of the Act, which requires a decision as to whether there are reasonable and probable grounds for apprehension on the evidence presented at the five-day hearing. He was not entitled to make an interim finding, nor to make a finding subject to further evidence. A literal reading of Section 39 supports the agency’s argument. The scheme of the section appears to require a decision within five days either dismissing the application, or, if reasonable and probable grounds are found to exist, permitting an adjournment pursuant to s. 39(3) within a thirty-day time frame from apprehension for determining the appropriate order to govern during the ninety days pending the disposition hearing. No provision is made for dismissal of the application at the adjourned hearing. However as the American Jurist Learned Hand wrote in Guiseppe v. Walling 144 F. 2d 608, 624 (1944): There is no surer way to misread any document than to read it literally; . . . As nearly as we can, we must try to put ourselves in the place of those who uttered the words, and try to divine how they would have dealt with the unforeseen situations; and, although their words are by far the most decisive evidence of what they would have done, they are by no means final. The Family and Children’s Services Act must be read in light of its preamble, which contains the following: AND WHEREAS the rights of children, families and individuals are guaranteed by the rule of law and intervention into the affairs of individuals and families so as to protect and affirm these rights must be governed by the rule of law; Judge Levy’s concern was that in a contested matter, a decision based on inadequate evidence at a hastily convened hearing could not safeguard the rights of the child or his parents to be heard, in accordance with natural law, possibly resulting in the unnecessary intrusion of the agency into their lives until the protection hearing, which may be held up to ninety days after the apprehension. Judge Levy’s “interim finding” was a device to reserve his right to make a substantive decision until he had heard the relevant evidence. The alternative of dismissal at the five-day hearing when there were clearly grounds for suspecting danger of sexual abuse would not have been in the best interests of the child. There would be pressure on the court to err on the side of caution by accepting mere suspicion in lieu of proof of the existence of reasonable and probable grounds. We are not satisfied that, in the circumstances of the present case and in light of the overarching purpose of the Family and Children’s Services Act, he lacked jurisdiction to make an interim order that he committed reversible error. The appeal is dismissed. Freeman, J.A. Concurred in: Hart, J.A. Flinn, J.A.