Y.L. v. Children's Aid Society of Halifax

Y.L. v. Children's Aid Society of Halifax Court Court of Appeal Date 1993-06-18 Citation 1993 NSCA 120 Docket CA 02850 Judge/Registrar/Adjudicator Freeman, Gerald B. (Honourable Justice) (CA); Jones, Malachi C. (Honourable Justice) (CA); Pugsley, Ronald N. (Honourable Justice) Document Type Decision Decision Content C.A. No. 02850 NOVA SCOTIA COURT OF APPEAL Jones, Freeman and Pugsley, JJ.A. Cite as: Y.L. v. Children’s Aid Society of Halifax, 1993 NSCA 120 B E T W E E N: Y. L. ) Appellant in person ) appellant ) ) - and - ) ) CHILDREN'S AID SOCIETY OF HALIFAX ) Philip S. Gruchy and ) Pamela J. MacKeigan respondent ) for respondent ) ) ) Appeal Heard: ) June 18, 1993 ) ) ) Judgment Delivered: ) June 18, l993 ) ) ) ) Editorial Notice Identifying information has been removed from this electronic version of the judgment. THE COURT: Appeal dismissed per oral reasons for judgment of Freeman, J.A.; Jones and Pugsley, JJ.A., concurring. The reasons for judgment of the Court were delivered orally by: FREEMAN, J.A.: This appeal concerns the future of a child who has spent her life in a legal limbo of uncertainty since her birth November [...], 1990, despite, or perhaps because of, statutory efforts intended to bring speed and order to the disposition of family matters in Nova Scotia. Shortly after Y. L. gave birth to her daughter S. the child was apprehended by the Children's Aid Society of Halifax. Proceedings were begun under the Family and Children's Services Act then in effect. There were numerous delays, all intended to accommodate the mother's efforts to regain custody. The result was that by the time Judge Timothy T. Daley of the Family Court rendered his decision on October 29, 1991, he had lost jurisdiction. A new hearing was ordered on appeal. Judge Daley found the child in need of protective services and ordered that she be placed in the care and custody of the Children's Aid Society of Halifax. The child was reapprehended after his decision was set aside on appeal and the process began afresh. In the meantime, proposed adoptive parents with whom S. had been placed were unable to stand the strain of the uncertainty and returned S. to the agency. She was returned to the care of the foster parents who had looked after her since a few days after her birth, who now wish to adopt her. The natural mother, who has steadfastly fought for custody of her daughter since the first apprehension, appeals from the order of Judge Deborah Gass dated April 5, 1993, making S. a ward of the agency. The agency's plan calls for her to be adopted by the foster parents. At the time of the first apprehension Y. L. was an immature nineteen years old, involved in an abusive and unstable relationship, since ended, with R. W., S.'s father, who was much older. During the first proceedings the plans advanced by Y. L. for caring for her daughter required the involvement of her mother and step-father. Y. L. had been sexually abused as a child by that same stepfather, who had been incarcerated as a result. Ms. L. had straightened her life out considerably by the time she testified in the second proceedings, although she retained a dependence on her own mother. She had entered into a more appropriate new relationship with A.B.. From the point of view of the best interests of S., Judge Gass found the improvements came too late. She concluded: "And in looking at the least intrusive alternatives and the extent to which they have been tried and failed, that is set out in the plan of care, and there was an insistence for a long period of time on the part of S. that she remain in a home that was a matter of concern to the agency. And unfortunately, although Y. has been able to become independent, to remove herself from that family unit and to set up housekeeping on her own, I have to share the view that for this particular child, S., at this particular point in her life, it is too late for the Court to take the position that the child be returned to the care of her mother. So it is my view that this particular child, in this particular set of circumstances, that S. be placed in the care and custody of the Agency." She found as a fact that S.'s family unit was the foster family. " . . . The evidence before me suggests that just on the basis of the sheer passage of time, as well as the quality of the home she is in, is that she is basically bonded with and attached to her foster family since birth." Her decision, she said, would not have been the same had the agency's plan contemplated moving S. out of that home. She found the move to the other prospective adoptive home was very traumatic for her. " . . . the professional opinions that have been put forth in this matter would tend to suggest that she can't withstand too much upheaval in her life or much more than she has already encountered in her short life." Judge Gass was obviously and understandably troubled by the difficulties she encountered in attempting to apply the new Children and Family Services Act, which took effect September 3, 1991. The Act substitutes intricate lists of instructions, many of which irrelevant to this case, for broader statements of principle which judges can adapt to circumstances that may vary enormously from one family situation to another. She noted that the time safeguards contained in the Act did not contemplate that people have a right to appeal, and that appeals take time. The sheer passage of time, she found, was a major factor in her conclusions as to S.'s best interests. That is in accordance with one of the recitals in the preamble to the Act: "AND WHEREAS 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." Counsel were able to waive their right to object to passing time periods. S. was not. Time continued to run for her in the foster home. Judge Gass' decision provides that S.'s home and parents will be the ones she has known throughout virtually the whole period of the time that she has experienced. In my view, this is a disposition made in the best interests of the child, which remains the governing consideration under the legislation. The appeal is dismissed Freeman, J.A. Concurred in: Jones, J.A. Pugsley, J.A. . C.A. No. 02869 NOVA SCOTIA COURT OF APPEAL B E T W E E N: Y. L. ) REASONS FOR ) appellant ) JUDGMENT BY: ) - and - ) FREEMAN, J.A. ) (Orally) THE CHILDREN'S AID SOCIETY OF HALIFAX ) ) respondent )