M.M. v. Children's Aid Society of Halifax

M.M. v. Children's Aid Society of Halifax Court Court of Appeal Date 1996-04-04 Citation 1996 NSCA 94 Docket CA 124001 Judge/Registrar/Adjudicator Roscoe, Elizabeth A. (Honourable Justice) (CA); Pugsley, Ronald N. (Honourable Justice); Chipman, David (Honourable Justice) Document Type Decision Decision Content C.A. No. 124001 NOVA SCOTIA COURT OF APPEAL Cite as: M.M. v. Children=s Aid Society of Halifax, 1996 NSCA 94 Chipman, Roscoe and Pugsley, JJ.A. BETWEEN: ) ) M. M. ) D. A. Rollie Thompson ) for the Appellant Appellant ) ) - and - ) ) CHILDREN'S AID SOCIETY OF ) Deborah Conrad HALIFAX and S. F. ) for the Respondent, ) Children's Aid Society Respondents ) ) ) Appeal Heard: ) April 4, 1996 ) ) ) Judgment Delivered: ) April 4, 1996 Editorial Notice Identifying information has been removed from this electronic version of the judgment. THE COURT: The appeal is dismissed without costs as per oral reasons for judgment of Chipman, J.A.; Roscoe and Pugsley, JJ.A., concurring. The reasons for judgment of the Court were delivered orally by CHIPMAN, J.A.: This is an appeal from a decision of a judge of the Family Court declining to rescind an order in 1993 for permanent care and custody of the appellant's granddaughter. The basis on which the application was made to the Family Court was that the appellant consented to or agreed with the 1993 order on the faith of the agency's then plan of care which envisaged that adoption plans would be initiated by the appellant. Unfortunately, the adoption plans did not materialize because the agency lost confidence in the appellant's parenting skills. The appellant has a drug dependency problem and by June of 1995 was hospitalized. At that time, the appellant's husband reported the problem to the agency it sought its intervention because he alone could not care for the child. The appellant sought rescission of the order in question on the authority of Civil Procedure Rules 15.07 and 15.08: Amendment of judgments and orders 15.07 Clerical mistakes in judgments or orders, or errors arising therein from any accidental mistake or omission, or an amendment to provide for any matter which should have but was not adjudicated upon, may at any time be corrected or granted by the court without appeal. Reversal or variation of order 15.08 Where a party is entitled to, (a) maintain a proceeding for the reversal or variation of an order upon the ground of a matter arising or discovered subsequent to the making of the order; (b) impeach an order on the ground of fraud; (c) suspend the operation of an order; (d) carry an order into operation; (e) any further or other relief than that originally granted; he may apply in the proceeding for the relief claimed. These rules were available for application by the Family Court at the discretion of the judge by virtue of Rule 1.04 of the Family Court Rules. The Family Court judge in rejecting the application said: One major obstacle in assessing the procedure sought by the grandmother is that this court is required under both the Family Maintenance Act (section 18(5) and the Children and Family Services Act (section 2(1)(2) and 3(2)(3)) to issue orders which are judicially determined to be in the best interest of a child. Such a determination is not a corollary or an adjunct to previous proceeding but rather the main and most fundamental issue to be assessed by the court. Not a mere rubber stamping of a consent agreement, if one is presented to the court as was the case at the October 1993 proceeding. There is no certainty that this court would or should have issued a custody order under the Family Maintenance Act even with the presentation of a consent order to such effect. Additionally, the grandmother relies upon Wood v. Wood (1982), 56 N.S.R. (2d) 217 (N.S.S.C.) as authority to apply Civil Procedure Rule 15:07 and 15:08. With respect, I do not find Wood, supra, to be persuasive. In Wood, supra, the Supreme Court amended a decree nisi which inadvertently failed to include an agreement between a husband and wife that the wife would vacate once a lump sum spousal support payment was made to her. However, I note in Wood there was evidence, a letter exchanged between the parties, which demonstrated that the parties understood the wife would vacate upon payment. Besides which, in Wood, both parties indicated their common understanding of the necessity to vacate upon payment of support. Although there are other distinguishing facts relative to the Wood case from the present application, it is most noteworthy that the court in Wood was not dealing with the future well being of an innocent young child. It was a financial matter between two adults. In my view, this is a material distinction. . . . Furthermore, the court has listened to the electronic tape recording of the 1993 proceedings. It is not obvious from the court record that there was any clear intention to grant an order under the Family Maintenance Act. In fact, the Agency specifically sought a permanent care and control order to ensure the continuation of services to the grandmother and the child. Other options were available to the Agency but those options were not discussed or placed before the court. . . . In summary, based upon all of the evidence, the court finds there was no oversight regarding the issuance of a Family Maintenance Act order to the grandmother. If the court is wrong in that regard, the court cannot find it is in S.'s best interest to now issue a retroactive custody order under the Family Maintenance Act. In short, the present application is dismissed. We agree fully with this reasoning. The procedure adopted by the appellant is, as the respondent said, "an effort to compel a retrospective consideration of the past circumstances of [the child], rather than an assessment of her present circumstances". The appeal is dismissed without costs. Chipman, J.A. Concurred in: Roscoe, J.A. Pugsley, J.A.