Finck v. Children's Aid Society of Halifax

Finck v. Children's Aid Society of Halifax Court Court of Appeal Date 2005-01-31 Citation 2005 NSCA 21 Docket CA 237775 Judge/Registrar/Adjudicator Cromwell, Thomas A. (Honourable Justice) Document Type Decision Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Finck v. Children’s Aid Society of Halifax, 2005 NSCA 21 Date: 20050131 Docket: CA 237775 Registry: Halifax Between: Lawrence Ross Finck and Carline Antonia Finck Applicants v. Children’s Aid Society of Halifax Respondents Restriction on publication: pursuant to s. 94(1) of the Children & Family Services Act Judge: The Honourable Justice Thomas A. Cromwell Application Heard: January 20, 2005, in Halifax, Nova Scotia, In Chambers Held: Applications dismissed Counsel: Applicants in person Elizabeth A. Whelton, for the Children’s Aid Society of Halifax 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 Decision: [1] The appellants apply in Chambers for: a protective intervention order pursuant to Rule 69.06 of the Rules of Civil Procedure for Nova Scotia and parens patriae jurisdiction, returning the infant (editor’s note- name and birthdate removed to protect identity), to the custody and care of her parents until appeals and matters within these cases at Bar are properly adjudicated; or alternatively, an order pursuant to Rule 62.30 and Rule 62.31 of the Rules and parens patriae jurisdiction staying all proceedings with SCNS CFSA 029575 and all orders arising therefrom returning the infant (editor’s note- name and birthdate removed to protect identity), to the custody and care of her parents until appeals and matters within these cases at Bar are properly adjudicated. [2] In previous chambers appearances in this matter, Mr. Finck’s application for appointment of counsel has been adjourned without date, an application for a stay of proceedings was similarly adjourned without date and the application for dates for filing the facta and for a hearing date was adjourned without day. [3] For the reasons which I have set out in the other application brought by the appellants in File No. CAC 230245, the appellants have no standing to apply for a protective intervention order and a judge of this court has no jurisdiction to grant such an order. [4] As for the stay application, Roscoe, J.A. explained to the appellants on January 6, 2005, this appeal relates only to the November 26, 2004 order of Smith, J. (as she then was) in the Family Division. A stay of that order would not seem likely to achieve any practical result in terms of the custody of the infant child given the earlier orders of the Family Division in place with respect to the child. [5] As for the request that all proceedings in the Family Division be stayed, and assuming without deciding that a judge of this court has jurisdiction to make such an order, I would not make it here. It is important that the issues raised in these proceedings have a full evidentiary hearing before a court of first instance. The Family Division conducting the proceedings which have given rise to this appeal are the appropriate forum for that to occur. [6] I see no point in postponing consideration of these applications on their merits. [7] The applications are dismissed. Cromwell, J.A.