Nova Scotia (Community Services) v. W.L.W.

Nova Scotia (Community Services) v. W.L.W. Court Court of Appeal Date 2002-10-28 Citation 2002 NSCA 129 Docket CA 184643 Judge/Registrar/Adjudicator Roscoe, Elizabeth A. (Honourable Justice) (CA); Glube, Constance R. (Honourable Chief Justice) (CA); Bateman, Nancy J. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - Nova Scotia (Community Services) v. W.L.W. - 2002 NSCA 129 - 2002-10-28 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Nova Scotia (Community Services) v. W.L.W., 2002 NSCA 129 Date: 20021028 Docket: CA 184643 Registry: Halifax Between: Minister of Community Services (Family & Children’s Services of Shelburne County) Appellant v. W. W. and T. M. Respondents Restriction on publication: Section 94(1) of the Children and Family Services Act Judges: Glube, C.J.N.S.; Roscoe and Bateman, JJ.A. Appeal heard: October 18, 2002, in Halifax, Nova Scotia Held: The appeal is dismissed as per reasons for judgment of Roscoe, J.A.; Glube, C.J.N.S. and Bateman, J.A., concurring. Counsel: W. Bruce Gillis, Q.C., for the appellant W. Andrew Ionson, for the respondent W. W. No one appearing on behalf of the respondent T. M. Reasons for judgment: [1] This is an appeal by the Minister of Community Services from an order made by Judge Marshall Black in the course of a proceeding brought by the respondent pursuant to the Children and Family Services Act, S.N.S. 1990, c.5, as amended, to terminate an order for permanent care of her four children. [2] The application for termination being heard by Judge Black was made pursuant to s. 48 of the Act, the relevant parts of which state: 48 (1) An order for permanent care and custody terminates when (a) the child reaches nineteen years of age, unless, because the child is pursuing an education program or because the child is under a disability, the court orders that the agency’s permanent care and custody be extended until the child reaches twenty-one years of age; (b) the child is adopted; (c) the child marries; or (d) the court terminates the order for permanent care and custody pursuant to this Section. ... (3) A party to a proceeding may apply to terminate an order for permanent care and custody or to vary access under such an order, in accordance with this Section, including the child where the child is sixteen years of age or more at the time of application for termination or variation of access. . . . (6) Notwithstanding subsection (3), a party, other than the agency, may not apply to terminate an order for permanent care and custody (a) within thirty days of the making of the order for permanent care and custody; (b) while the order for permanent care and custody is being appealed pursuant to Section 49; (c) except with leave of the court, within (i) five months after the expiry of the time referred to in clause (a), (ii) six months after the date of the dismissal or discontinuance of a previous application by a party, other than the agency, to terminate an order for permanent care and custody, or (iii) six months after the date of the final disposition or discontinuance of an appeal of an order for permanent care and custody or of a dismissal of an application to terminate an order for permanent care and custody pursuant to subsection (8), whichever is the later; or (d) except with leave of the court, after two years from (i) the expiry of the time referred to in clause (a), or (ii) the date of the final disposition or discontinuance of an appeal of an order for permanent care and custody pursuant to Section 49, whichever is the later. . . . (8) On the hearing of an application to terminate an order for permanent care and custody, the court may (a) dismiss the application; (b) adjourn the hearing of the application for a period not to exceed ninety days and refer the child, parent or guardian or other person seeking care and custody of the child for psychiatric, medical or other examination or assessment; (c) adjourn the hearing of the application for a period not to exceed six months and place the child in the care and custody of a parent or guardian, subject to the supervision of the agency; (d) adjourn the hearing of the application for a period not to exceed six months and place the child in the care and custody of a person other than a parent or guardian, with the consent of that other person, subject to the supervision of the agency; or (e) terminate the order for permanent care and custody and order the return of the child to the care and custody of a parent or guardian or other person. . . . (10) Before making an order pursuant to subsection (8), the court shall consider (a) whether the circumstances have changed since the making of the order for permanent care and custody; and (b) the child’s best interests. [emphasis added] [3] The respondent’s children were committed to permanent care and custody by order issued on August 29, 2000 following a trial before Judge Daley. The respondent made an application to terminate the order pursuant to s. 48(3) on July 19, 2001. Leave was not required for that application. After several adjournments, the parties appeared before Judge Black on June 4, 2002. At that time, counsel for the respondent requested a further adjournment because a person who had just recently been assisting the respondent with issues concerning the children and a proposed parenting plan, had not been available to attend court or to provide him with information necessary for an affidavit. Counsel for the appellant complained that the matter had been dragging on and would not consent to a further adjournment. He submitted: “...the proper thing to do, let [the respondent] get her information and so on together, and in the meantime dismiss this matter. It’s been going on for nearly a year with - with no advance in the matter, and then when she has the information together that she can make a proper application, she can restart the application, and we’ll appear at a date and time to be set then and deal with it.” [emphasis added] Judge Black replied that it would be helpful to have the information that counsel for the respondent was waiting for, and purportedly dismissed the matter, and then set a date for the hearing of the application on July 11, 2002. Counsel for the agency did not object to the setting of that date or suggest that a leave application would be required. [4] A fresh application was filed the following day by counsel for the respondent, with notice of hearing on July 11, 2002. An affidavit of the respondent setting out changes in her circumstances since Judge Daley’s order was filed with the application. [5] On July 4, 2002 counsel for the appellant wrote to Judge Black submitting that parts of the affidavits filed on behalf of the respondent should be struck, that the application should be summarily dismissed because the affidavits disclosed no change in circumstances and that leave to bring the application within six months of the previously dismissed application should not be granted. [6] At the commencement of the hearing on July 11th, Judge Black stated that he was granting leave to proceed with the application because the previous application had not been dealt with on the merits. The matter then proceeded and evidence was heard from the respondent and three other witnesses. The respondent testified that since the protection order she had severed her relationship with the father of the children, that she had taken two child care programs and an anger management course, and had discontinued use of alcohol and drugs. She also testified that as a result of her access visits she had formed the opinion that the children were unhappy in their current placement at the SOS Village. There was no oral argument made regarding the suggestion in counsel’s letter that the matter should be dismissed pursuant to Rule 14.25 and no further discussion of it. At the end of the day, the matter had not concluded, and the judge and counsel discussed dates for reconvening. None of them mentioned or appeared to take note of s. 48(8)(b). Judge Black referred to s. 48(10) and indicated that in order to “get an idea of the whole picture” it would be advisable to have updated reports from some of the experts involved in the hearing before Judge Daley. Counsel advised Judge Black that two of the experts had recently seen the children. He asked counsel to agree on which experts should be retained for preparation of the updates. The matter was adjourned for continuation on November 26th. The notice of appeal to this court is dated August 15, 2002. [7] The order appealed from, dated July 11, 2002, contained four provisions: leave to the respondent to bring the application for termination pursuant to s. 48(6) of the Act was granted, the appellant’s application for summary dismissal of the application made pursuant to Civil Procedure Rule 14.25 was dismissed, update reports from professionals previously involved with the family were ordered, and the matter was adjourned for continuation of the hearing to November 26th, 2002. [8] The appellant raises four issues in its notice of appeal: that the judge erred in granting leave when there was no written application for leave on file as required by s. 48(6)(c)(ii) and Family Court Rule 21.14; that the judge erred in not dismissing the application pursuant to Rules 14.25; that the judge misapplied the burden of proof by failing to require the respondent to establish a prima facie case as to change in circumstances before proceeding; and that the judge erred in adjourning the matter for more than 90 days contrary to s. 48(8)(b) of the Act. [9] With respect to the granting of leave by Judge Black in the absence of a formal written application for leave, there are several relevant factors: the first application was never dealt with on the merits, the second application was really a “re-starting” of the first one for which leave was not required, and to which agency counsel implicitly consented at the time. Family Court Rule 21.14 was not brought to the attention of Judge Black, and Family Court Rule 2.01(1) which is the same as Civil Procedure Rule 2.01(1), provides that a failure to comply with the Rules shall not nullify a proceeding unless the Court otherwise orders. While we agree that the requirement for leave is substantive (see C.A.S. of Cape Breton v. L.M. (1999), 177 N.S.R. (2d) 25, ¶ 68), in the unusual circumstances of this case, the procedural irregularity of failing to file a separate application for leave should not preclude the continuation of the hearing of the application. [10] With respect to the second issue raised on appeal, it is well settled that on an application pursuant to Rule 14.25 to strike out an action, a judge must proceed on the assumption that the facts contained in the pleadings are true and, assuming those facts to be true, consider whether a claim is made out. An order to strike out a statement of claim will not be granted unless on the facts as pleaded the action is "obviously unsustainable". See: Vladi Private Islands Ltd. v. Haase et al (1990), 96 N.S.R. (2d) 323 at p. 325. Here the document that would be assumed to contain true facts would be the respondent’s affidavit setting out her changes in circumstances. For example, one of the reasons for the permanent care order was the domestic violence inflicted upon the family by the respondent’s former partner. The respondent now asserts that she is no longer involved with him. If that fact is proven, her application for termination cannot be said to be unsustainable. As well, given that the appellant did not file any actual application pursuant to Rule 14.25 and did not bring the issue to Judge Black’s attention at the hearing on July 11, 2002, there is no merit to this ground of appeal. [11] The appellant submits that the trial judge has “completely misunderstood the nature of the mother’s burden of proof and the two-step process” involved in a termination application, that is, the necessity of proving a change in circumstances before proceeding to determine the best interests of the children. The trial judge has not yet made any determination of the merits of this application. The burden of proof has not yet been engaged. Nor has the judge commenced upon any consideration of what is in the best interests of the children, or any assessment of whether the respondent has shown a change in circumstances. He has merely heard part of the evidence and ordered that the matter be continued on another date. In the meantime, he has exercised his discretion to order updated reports from professionals, as agreed upon by counsel, apparently to save time and to have a better understanding of the current situation of the children. Until such time as a decision on the respondent’s application is rendered, it is our view that the appeal of the July 11th order is premature. It may ultimately be moot. [12] Whether an appeal of the order of Judge Black should even be entertained at this juncture is an issue that has not been addressed by counsel, and need not in the circumstances be determined, but the admonishment of Justice Chipman in Children’s Aid Society of Halifax v. L.H. (1989), 90 N.S.R. (2d) 44 is apposite here: Judge Roscoe's decision falls within the category of the numerous rulings which a trial judge must make in the course of the proceeding which include not only rulings on the admissibility of evidence, but decisions as to times of hearings, adjournments, the order of calling evidence and arguments. In my opinion, it could not have been the intent of the Legislature to treat such a decision or ruling as a "decision" within the meaning of s. 73(1) of the Children's Services Act. The present case serves as an example of the complete impracticability of trials being held up at any and all stages by the launching of appeals from the various rulings and decisions which are made constantly by a trial judge as an incident of every trial. I accept the following from the decision of Hughes, C.J.N.B., in New Brunswick Telephone Company Limited v. John Maryon International Limited et al. (1980), 32 N.B.R. (2d) 133 where he said at p. 136: "The judge presiding at a trial of a civil action in the Court of Queen's Bench is, I think, the master of the proceedings from the commencement until the conclusion. He is required to make decisions on numerous questions arising in the course of the trial, which may be the basis of an appeal against the judgment rendered in the action. However, notwithstanding that a ruling as to the admissibility of evidence may fall within the word "decision" within the meaning of s. 8(3) of the Judicature Act, I cannot accept the proposition that a litigant has an immediate right to appeal such a decision although the decision may constitute a basis for an appeal against the judgment in the case." . . . The expeditious and orderly resolution of disputes require that a trial judge be in command of the proceedings until their end. Only then is it possible to tell whether or by whom an appeal should be attempted. The whole issue raised here might have, by the end of the day, become entirely moot. The judge could arrive at a decision totally without reference to the points at issue or a decision entirely to the satisfaction of the party complaining of the ruling on the admissibility of the evidence. As I have said, Judge Roscoe has reached her conclusions on the basis of extensive viva voce evidence which she has summarized. It is not apparent from the decision that the challenged business records played any role in the conclusion which she reached. The only reference in the entire decision to the subject records is a statement that the respondent's evidence confirmed certain entries in those records respecting her. To permit appeals in midstream, as it were, would only create such delay and confusion as appears to have resulted from this premature and ill-conceived challenge to Judge Roscoe's ruling. [13] As the final ground of appeal, the appellant submits that the trial judge erred in adjourning the matter for a period in excess of 90 days contrary to s. 48(8)(b). That subsection provides that one of the options open to the judge hearing a termination application is to refer the child or parent for a psychiatric, medical or other assessment. If that option is selected, the adjournment should not be for a period in excess of 90 days. The problem with this ground of appeal is that there was no explicit order for a psychiatric or medical assessment. The judge had been advised by counsel that two of the experts had continued contact with the children. The order states: That counsel for the Applicant and the Respondent prepare a list of professionals whom they agree should provide updates of reports submitted to the Court in the protection proceeding and request them to provide updates to the Court. [14] In any event, once this ground of appeal was brought to the attention of counsel for the respondent and Judge Black, the date for recommencement of the hearing was advanced by agreement to October 8, 2002, so that the adjournment was not outside the time permitted by s. 48(8)(b). Accordingly, this ground of appeal should be dismissed as the issue is now moot. [15] The appeal should therefore be dismissed. Roscoe, J.A. Concurred in: Glube, C.J.N.S. Bateman, J.A.