NOVA SCOTIA COURT OF APPEAL
Citation: C.V. v. Children’s Aid Society of Halifax, 2006 NSCA 2
Date: 20060106
Docket: CA 250275
Registry: Halifax
Between:
C.V. and L.F.
Appellants
v.
Children’s Aid Society of Halifax
Respondent
Restriction on publication: Pursuant to s. 94(1) Children and Family Services Act
Judge(s): MacDonald, C.J.N.S., Bateman & Hamilton, JJ.A.
Appeal Heard: November 24, 2005, in Halifax, Nova Scotia
Held: Appeal dismissed as per reasons for judgment of the court.
Counsel: Appellants, in person
Elizabeth Whelton, for the respondent Children’s Aid Society
Glenn Anderson, Q.C., & Jacklyn Scott, for the respondent, Attorney General of Nova Scotia
Terrance Sheppard, Amicus Curiae to the Court
Restriction on publication: Pursuant to s. 94(1) Children and Family Services Act.
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, a foster parent or a relative of the child.
Reasons for judgment, by the Court:
[1] The self-represented appellants, C.V. and L.F., mother and father of M.C.F. respectively, appeal the June 22, 2005 final disposition order of Associate Chief Justice Deborah K. Smith of the Nova Scotia Supreme Court placing their daughter in the permanent care and custody of the respondent, the Children’s Aid Society of Halifax (the “Society”), without access by either parent.
[2] This is the parents’ second perfected appeal to this court arising from the child protection proceedings commenced by the Society in January, 2004. They previously appealed the judge’s November 26, 2004 decision following a review hearing under s.46 of the Children’s and Family Services Act, S.N.S. 1990, c.5, as amended, reported at (2004), 228 N.S.R. (2d) 266. That appeal was dismissed in this court’s June 3, 2005 decision reported at (2005), 233 N.S.R. (2d) 360.
[3] No factum was filed by the parents in this appeal. The mother chose not to participate in the hearing and requested that she be removed from the court room and returned to jail almost immediately after the hearing began. The father presented oral argument on his own behalf.
BACKGROUND
[4] The background facts relating to this family are set out in many prior court decisions including: the decision under appeal reported at (2005), 235 N.S.R. (2d) 67; this court’s prior decision and the judge’s November 26, 2004 decision both referred to above; and this court’s February 22, 2005 decision, reported at (2005), 231 N.S.R. (2d) 50, dismissing the parents’ appeal from MacAdam, J.’s April 7, 2005 disposition on the parents’ habeas corpus application, reported at (2005), 233 N.S.R. (2d) 69.
[5] In this court’s June 3, 2005 judgment the facts to May, 2004 are summarized:
[2] The appellants have a long history before the Ontario courts, the details of which are outlined in two earlier decisions of Smith J. reported as Children's Aid Society of Halifax v. C.V., [2004] N.S.J. No. 196 and CAS of Halifax v. V. and F., 2004 NSSF 04, as yet unreported. Their involvement with the respondent Society had its origins when they moved to Nova Scotia in late 2003. Ms. C.V. was pregnant at that time. The child, M.C.F., was born here that December. Due to events which had transpired in Ontario, resulting in concerns about the mental status of the appellants, the Huron‑Perth Children's Aid Society of Stratford, Ontario had issued a Canada‑wide Child Protection Alert which recommended a warrant to apprehend in the event that the family's whereabouts became known. When the respondent Society learned the appellants were in Nova Scotia, it commenced a protection application initially seeking a supervision order and the referral of the appellants for various assessments aimed at determining their mental health. Although personally served with the notice of the protection hearing, Ms. C. V. did not attend. It later became known that she had gone into hiding with the child. Mother and child would not reappear for several months. The hearing proceeded in her absence with Mr. L.F. representing himself. On January 15, 2004, at that stage recognizing the futility of a supervision order, the court granted temporary care of the child to the respondent Society pending continuation of the hearing in February. On February 12, 2004 the court issued a further interim order with the child to continue in the temporary care of the Society with supervised access to the appellants. The whereabouts of Ms. C.V. and M.C.F. were still unknown to the Society. In an oral decision delivered on March 22, 2004, Smith, J. found the child to be in need of protective services. Ms. C.V. eventually returned to the home of her mother-in-law, in Halifax, where Mr. L.F. was living. They refused to surrender the child to the respondent Society. A three-day armed stand-off with police ensued, ending on May 21, 2004 with the appellants surrendering into police custody.
[6] The first disposition hearing with respect to their daughter was scheduled to begin May 31, 2004 but was adjourned at the mother’s request. It recommenced June 7, 2004. Neither parent attended. Despite knowing the date the disposition hearing was to begin, and having been told by the judge to ensure these dates were kept available if they decided to apply for bail, the parents requested and obtained the same date, June 7, 2004, for the commencement of their bail hearing even though other dates were available. When the prosecutor informed the judge setting the dates for the bail hearing of the conflict, the parents indicated that they did not wish to appear at the disposition hearing.
[7] The parents did not notify the judge of the conflicting dates once they were set or seek another adjournment of the first disposition hearing. The judge became aware of the conflicting dates and the parents’ participation in the setting of the dates for their bail hearing through the Society’s counsel. On June 7, 2004 the parents attended their bail hearing. After reviewing the transcript of the Provincial Court proceedings to confirm the parents had indicated they did not wish to attend the disposition hearing, the judge proceeded with the hearing in their absence on June 7. She ordered that the child remain in the temporary care of the Society without access by the parents who were incarcerated, but with provision that either parent was free to apply for access.
[8] The father has been in custody since the armed standoff. The mother was released on bail on July 8, 2004. One term of the mother’s July 8, 2004 release was that she could not attempt to contact her daughter unless such contact was ordered by the court.
[9] Throughout the summer of 2004 the mother demanded access with her daughter directly from the Society. She was reminded by the Society’s lawyer in eight separate letters that she must, in compliance with her bail terms, apply to the court to obtain such access. The mother made no such application.
[10] The disposition review hearing that gave rise to the judge’s November 26, 2004 decision, previously unsuccessfully appealed to this court began June 3, 2005, began September 7, 2004 and continued intermittently to November 18, 2004. On October 14, 2004, during the continuation of that hearing, the judge appointed counsel as amicus curiae, to be available to provide certain legal help to the parents who had not retained legal counsel despite legal aid being available to them.
[11] In her November 26, 2004 decision, the judge found the child continued to be in need of protection and ordered ongoing temporary care of the child to the Society without access to the parents. She also ordered psychological/psychiatric assessments and parental assessments of the parents. The parents refused to participate in any assessments despite being given the opportunity to choose the person who would conduct them.
[12] Following another review hearing in February and March 2005, the judge again determined that the child continued to be in need of protective services and ordered a continuation of temporary care and custody without access.
[13] On May 12, 2005 the parents were convicted of numerous criminal charges relating to the hiding of the child and the armed standoff. Both were sentenced to custodial terms. The appeals of their convictions are pending.
[14] The final disposition hearing resulting in the decision under appeal began May 30, 2005. The mother chose not to participate as referred to in ¶ 3 above. The father initially participated but terminated his participation on June 7, 2005 prior to its completion. No evidence was introduced by the parents at the hearing other than a few exhibits entered during cross-examination of the Society’s witness. They withdrew their affidavit that had been filed before the hearing began. They called no witnesses nor did either testify.
JUDGE’S DECISION
[15] In ¶ 2 to 27 of the appealed decision the judge reviewed in detail the history of the child protection proceeding from the initial application in January, 2004. After referring to the relevant sections of the Act and the case law she rightly concluded that she had to determine if the child was still in need of protection, and if so, whether it would be in the child’s best interests that she be placed in the permanent care of the Society.
[16] She reviewed the mental health issues raised with respect to the parents and concluded that while she was satisfied there were such issues, she had to go further than that and determine if those issues placed their daughter at risk:
[50] Serious mental health concerns have been raised throughout this proceeding about both of M.C.F.'s parents. L.F. has refused to participate in the psychiatric/psychological assessment ordered by this Court in November of 2004, but he was assessed in June of 2004 (following the armed standoff) by Dr. Robert A. Pottle. As indicated previously, Dr. Pottle (a psychiatrist) diagnosed L.F. as having a serious psychotic illness (a Delusional Disorder ‑ Persecutory type) along with a Personality Disorder with narcissistic, antisocial and histrionic personality traits. Dr. Pottle went on to say that L.F. suffers from chronic persecutory delusions and that his judgment is impaired in part due to his Personality Disorder. He concluded that L.F.'s prognosis for treatment of the Delusional Disorder was poor as L.F. does not accept that he has any form of mental illness.
[51] To my knowledge, L.F. has not been re‑assessed by a psychiatrist or a psychologist since the time that Dr. Pottle saw him in June of 2004 and there is no evidence before me that L.F.'s mental condition has changed since that time.
[52] C.V. has also refused to be assessed by a psychiatrist or a psychologist as ordered by this Court. Despite this fact, it is clear after seeing C.V. in court on numerous occasions that there are serious and legitimate concerns about her mental health. While C.V. presents in court as an intelligent individual, her conduct is often grossly inappropriate, aggressive, antagonistic and sometimes bizarre. There have been a number of occasions during the course of these proceedings when she has either been unwilling or unable to control her behaviour.
[53] As a result of C.V. refusing to be assessed by a psychiatrist or a psychologist, the Court does not have a formal medical opinion of her mental condition. Nevertheless, I am fully satisfied that C.V.'s mental health is a relevant concern when it comes to the issue of M.C.F.'s need for protection.
[54] At the time of the initial Review Hearing, I accepted Dr. Pottle's testimony that L.F. suffers from chronic persecutory delusions. As indicated previously, L.F. believes that he is being persecuted by the government and that a conspiracy exists in relation to M.C.F.
[55] As indicated in my decision of November 26th, 2004, C.V. also appears to believe that a conspiracy exists in relation to the apprehension of M.C.F. Throughout this proceeding both C.V. and L.F. have suggested that numerous individuals are involved in this conspiracy including the government, various social workers and the Court.
[56] The fact that L.F. has been diagnosed with a serious psychotic illness; that there are serious concerns about C.V.'s mental health and that both of these individuals appear to subscribe to conspiracy theories in relation to their infant daughter does not, in itself, mean that M.C.F. is in need of protection. The question that the Court has to consider is whether the Respondents' mental health and their actions as a result of their beliefs place M.C.F. at risk.
(Emphasis added)
[17] In answering the question in the affirmative, the judge said:
[57] M.C.F. was being hidden from child welfare authorities before she was even born. At the time of the Protection Hearing in March of 2004, L.F. openly acknowledged that he and C.V. moved to Nova Scotia in the fall of 2003 (prior to M.C.F.'s birth) to insure that she was not apprehended by Children's Aid in Ontario.
[58] When the Children's Aid Society of Halifax made application to supervise the Respondents care of their infant daughter (leaving M.C.F. in the care and custody of her parents) C.V. surreptitiously disappeared with the child, hiding her from the protection of the Children's Aid Society and the Court.
[59] In May of 2004, L.F. and C.V. put their infant daughter in the middle of a multi‑day armed standoff with police rather than comply with the Court Order placing M.C.F. in temporary care. Their actions in this regard showed a total lack of judgment concerning their daughter's safety as well as an inability to put the interests of M.C.F. above their own. Regardless of whether C.V. and L.F. agreed with the Order placing M.C.F. in temporary care, their decisions and actions in May of 2004 were completely inappropriate and clearly placed M.C.F. at significant risk of physical and emotional harm.
[60] Since the armed standoff in May of 2004, the Respondents have done little to deal with the issues that put M.C.F. in temporary care. They refuse or are incapable of recognizing or dealing with the mental health issues that have been raised throughout this proceeding ‑ opting instead to charge ahead in what appears to be a relentless pursuit of fighting "the system". They appear to be consumed with their perception of a corrupt family justice system and seem incapable of recognizing their own role in M.C.F. being placed in care.
[61] I am satisfied that L.F. and C.V. are unable to focus on or act in the best interests of their daughter and that M.C.F. would be at substantial risk of physical and emotional harm if returned to her parents' care.
(Emphasis added)
[18] The judge then determined that it was in the best interests of the child to be placed in the permanent care of the Society in accordance with its plan of care which included adoption:
[69] While maintaining and promoting the integrity of the family is clearly one of the main objectives of the Children and Family Services Act, the Court's paramount concern must be M.C.F.'s best interests. After carefully considering the evidence presented as well as the factors set out in s.3(2) and s.46(4) of the Act, I have concluded that it is in M.C.F.'s best interests that she be placed in the permanent care and custody of the Children's Aid Society of Halifax. In arriving at my decision I have applied the most recent plan of care filed by the Children's Aid Society of Halifax.
[19] The judge then considered the one Charter issue she determined was properly raised by the parents:
[77] For reasons given by the Court during the course of the hearing only one of the constitutional questions raised by C.V. and L.F. went forward for consideration by the Court. That is: Whether psychiatric or psychological assessments of a parent or parents whose offspring are in state care or who are subject to becoming state wards by virtue of s.22(2)(b) and s.22(2)(g) of the Children and Family Services Act violate s.2(a), s.2(b), s.7 and s.15 of the Canadian Charter of Rights and Freedoms.
[20] This argument related to the orders made by the judge in February and November, 2004 and in February 2005 requiring that both parents participate in psychological/psychiatric and parental assessments - which both failed to do. On this issue the judge stated:
[91] We are now at the final disposition stage of this proceeding. As part of its case the Children's Aid Society of Halifax has referred to the fact that C.V. and L.F. have refused to participate in the assessments ordered by the Court. In response to that argument, the parents are suggesting that they did not have to participate in these assessments as they violated their rights under the Charter. In these circumstances, I do not view the parents' argument as an appeal of my decision but rather a response to the most recent case advanced by the Children's Aid Society of Halifax. In other words, I am not being asked to consider whether I should have ordered these assessments but, rather, whether the Respondent parents had a valid reason not to comply with my Order.
[92] L.F. and C.V. have not satisfied me that in the circumstances of this case, the psychiatric or psychological assessments ordered by the Court violated their rights and freedoms under s.2(a), s.2(b), s.7 or s.15 of the Canadian Charter of Rights and Freedoms.
[93] Many of the arguments advanced in support of the parents' position on this issue were difficult to understand. It was difficult to determine the basis upon which the parents claim such assessments would violate their freedom of conscience and religion under s.2(a); their freedom of thought, belief, opinion and expression under s.2(b) or their equality rights under s.15. In the end, the Court was largely left to speculate as to how these freedoms and rights were allegedly being violated.
[94] In relation to the s.7 argument, even if I was satisfied that the ordering of such assessments would violate the parents' right to liberty and security of the person under s.7 of the Charter, I am nevertheless satisfied that such infringement would occur in accordance with the principles of fundamental justice (see the Supreme Court of Canada decisions in B.(R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46 and Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519 for a review of the principles of fundamental justice in the context of child welfare legislation).
[95] Individuals who are alleging a Charter infringement must establish that their rights or freedoms have been violated. L.F. and C.V. have not fulfilled this burden in the circumstances of this case.
(Emphasis added)
[21] The same counsel who acted as amicus curiae at the trial level was appointed as amicus curiae for this appeal on July 29, 2005 (2005), 235 N.S.R. (2d) 290. In her order appointing the amicus curiae Oland, J.A. (in chambers) described his functions:
[27] . . . The functions of the amicus would be to use reasonable efforts: (1) to review the appeal books and decision under appeal; (2) to prepare a factum which would make submissions in support of any arguable grounds of appeal; (3) to serve that factum to the parties to this appeal and to file it with the court by August 31, 2005; (4) to appear in court on the scheduled date of this hearing and, in the panel’s discretion, to make oral presentations and respond to questions from the court.
STANDARD OF REVIEW
[22] The standard of review is as stated in this court’s June 3, 2005 decision:
¶ 4 An appeal of an order under the Act is subject to the usual civil standard of review. This was concisely stated by Cromwell, J.A. in Children's Aid Society of Cape Breton‑Victoria v. A.M., [2005] N.S.J. No. 132 (Q.L.):
[26] This is an appeal. It is not a retrial on the written record or a chance to second guess the judge's exercise of discretion. The appellate court is not, therefore, to act on the basis of its own fresh assessment of the evidence or to substitute its own exercise of discretion for that of the judge at first instance. This Court is to intervene only if the trial judge erred in legal principle or made a palpable and overriding error in finding the facts. The advantages of the trial judge in appreciating the nuances of the evidence and in weighing the many dimensions of the relevant statutory considerations mean that his decision deserves considerable appellate deference except in the presence of clear and material error: Family and Children's Services of Lunenburg County v. G.D., [2003] N.S.J. No. 416 (Q.L.) (C.A.) at para. 18; Family and Children's Services of Kings County v. B.D. (1999), 177 N.S.R. (2d) 169 (C.A.); Nova Scotia (Minister of Community Services) v. C.B.T. (2002), 207 N.S.R. (2d) 109; Van de Perre v. Edwards, [2001] 2 S.C.R. 1014 at paras. 10‑16.
FRESH EVIDENCE
[23] Before analysing the grounds of appeal we must deal with the father’s fresh evidence application made during the hearing. He sought to have admitted before us: (1) the June 3, 2004 pick-up order granted by the judge with respect to the mother’s appearance at the June 7, 2004 first disposition hearing; (2) a similar pick-up order for the father; (3) the August 11, 2005 order of Fichaud, J.A. (in chambers) dismissing the parents’ appeal of the summary dismissal of their civil law suit against the judge; and (4) July 8 and 18, 2005 orders of Chief Justice MacDonald of this court in chambers.
[24] Counsel for the Society agreed that the two pick-up orders form part of the record. We will consider the three orders of this Court as they may be relevant to this appeal.
GROUNDS OF APPEAL
[25] The parents’ amended notice of appeal contains 21 grounds of appeal:
1. Smith, J. erred in law when assuming jurisdiction of subject matter entirely emanating from the Province of Ontario. Smith, J. knew that the Applicant, State Agent C.A.S. were neither capable nor able to call their case to bar. The only jurisdiction was within the Children and Family Services Act and The Courts of Justice Act for the Province of Ontario. The Child and her parents rights were violated as per the Canadian Bill of Rights preamble, Part I (1)(a), (b), (d), (2)(a), (b) and (e) and the Charter s. 2, 7, 11, and 15 of the Judicature Act, R.S., c. 240, s. 43 (10) and (11) Canada and Universal Human Rights Acts;
2. Smith, J. erred in law with total disregard for fundamental justice and due process of law most evident within the transcripts dated Jan. 15, 2004 Vol. 1 pages 1 to 55 inclusive. The child and her parents rights as pleaded within Ground # 1 were violated and not respected that constitutes a miscarriage of justice;
3. Smith, J. erred in law and fact considering documents filed by the Applicant, State Agent C.A.S.'s application record to be fraudulent, contrary to Ontario Court Orders, unsigned authored documents that would outrage the community's sense of fair play and decency constituting a miscarriage of justice. The respondents were denied an opportunity to respond and rights were violated as per in ground # 1;
4. Smith, J. erred in law by controlling the adducing of evidence in an overwhelming bid to the respondents that led to a pre‑designed conclusion in favour of the State Agent C.A.S. Smith, J. discarded or disqualified witnesses called and or subpoenaed by the respondents that formed some of the subject matter within the State Agent C.A.S. application record. Smith, J. made erroneous rulings pertaining to evidence within medical files of the respondents that were not in dispute with counsel for Dr. Edgar. Smith, J. erred when not ruling that the State Agent C.A.S. bring forward Dr. Edgar, [MABLE] clinic nurse and public duty nurse the only eye witnesses in Nova Scotia to the child's care;
5. Smith, J. erred in law by exceeding the court's jurisdiction when adjudicating her own motion following Rule 25 of the Civil Procedure Rules for Nova Scotia. The courts jurisdiction was within the Judicature Act, R.S. c. 240, s. 1 and the Children and Family Services Act 1990, c. 5, s. 1. There was no common law to substantiate such a procedure to deny the respondents their right to a trial of the issue. This is contrary to the adversary system of justice and without any jurisdiction in statute or codified by common law. The respondents' rights as per ground # 1 were violated which constitutes a miscarriage of justice;
6. Saunders, J.A. erred in law when attaching a monetary financial burden on the appellants within appeal file number CA 216216 to review the Section 39 proceeding of Smith, J. Saunders, J.A. was informed and knew of the indigent status of the parents and that his unilateral directions could not be met or respected. In addition giving the State Agent C.A.S. twice the time to prepare a factum was bias and prejudicial against the appellant child and her parents in favour of the state. This is contrary to and violated the protected rights of the appellants within ground # 1 and constitutes a miscarriage of justice;
7. Oland, J.A. erred in law in the further continuance of appeal file number CA 216216. A miscarriage of justice occurred when Oland, J.A. with all the particulars before the court refused to appoint counsel or alternatively recognize or compromise the plight of the child and her parents within the appeal at bar. This constitutes a miscarriage of justice violating protected rights as pleaded in ground # 1. Oland, J.A. further erred in law by dismissing the appeal without proof of service on the appellants by State Agent C.A.S. The appellants never received an application for dismissal;
8. Smith, J. erred in law on June 7, 2004 when assuming jurisdiction of the Section 42 disposition hearing without the attendance of the parents and or representation for the parents and the child. This was done despite a valid pick‑up order in effect out of the Supreme Court for Nova Scotia dated June 3, 2004. There was no proper inquiry into the respondents absence. Violating and contrary to the rights pleaded in ground # 1.
9. Smith, J. erred in law with the total disregard to the best interest of the unrepresented child when failing to provide the infant child with access to her parents starting a year long pre‑designed alienation of [the child] from her parents. Contrary to the entire Children's and Family Services Act and violating protected rights pleaded within ground # 1. This constitutes a miscarriage of justice.
10. Smith, J. erred in law when failing to exercise and assume the courts exclusive original jurisdiction over the prosecution of an offence against the Children and Family Services Act, 1990 C. 5, S. 95. Abduction of children by members of the same family are codified and conferred on the Nova Scotia Supreme Court Family Division within Section 32A(2)(f) of the Judicature Act, R.S. C. 240, S. 32. In addition penalty or penalties are within the Children and Family Services Act, 1990 C. 5, S. 90 to 95 inclusive. This constitutes a miscarriage of justice and violates protected rights pleaded in ground # 1.
11. Smith, J. erred in law creating a miscarriage of justice when improperly conducting criminal proceedings in a quasi‑criminal manner with total disregard for the respondents right to the presumption of innocence when facing serious criminal sanctions within a criminal court of law. Two courts both adjudicating the same subject matter runs counter to all protected rights within ground # 1;
12. Smith, J. erred in law throughout the proceedings when failing to provide legal representation for the child or alternatively protect and represent the child from the bench which is contrary to the best interest of the child. A miscarriage of justice occurred and the child's rights were violated as pleaded in ground # 1;
13. Smith, J. erred in law failing to exercise the court's jurisdiction to conduct proper and timely disposition hearings within the stated time frames. In 6 months, 2 disposition hearings were neither started not completed. Organized pre‑hearings were not conducted and the child was alienated from her parents. The parents were separated, jailed and not in any position to participate properly in the proceedings. This includes the right to conduct examination for discoveries, right to call witnesses, use of the telephone and possession of all legal documents. However Smith, J. continued on with the respondents suffering these abuses directly in the face of the court. This constitutes a miscarriage of justice and violates the rights pleaded in ground # 1;
14. Smith, J. erred in law when including within an order of November 23, 2004 for the respondent father to contact medical personnel knowing it to be an impossibility. Orders from the bench to purposely have them violated runs counter to the proper administration of justice. It was later learned the State Agent C.A.S. moved for their junk science experts in conflict of interests at the I.W.K. assessment unit. They are being paid and funded by Justice Nova Scotia who was prosecuting the parents in criminal court as well as Family Court. This constitutes a miscarriage of justice and violates all rights protected as pleaded in ground # 1;
15. Smith, J. erred in law and exceeded the court's jurisdiction when ordering medical assessments. Smith, J. further erred by continually failing to consider the respondents repeated requests to use Junk Science expert from the non‑conflict of interest personnel from the United States of America. Smith's order was tailored for Justice Minister Baker's team at I.W.K. who have an overwhelming success rate favouring the State Agent C.A.S. This constitutes a miscarriage of justice and violates the rights pleaded in ground # 1;
16. Smith, J. erred in law by failing to protect the infant child from State foster home abuses. State Agent C.A.S. were exposed moving the child without any transition time whatsoever and deliberately trying to hide the move from the court. [The child] was traumatized once again in the face of the court. Smith, J. did nothing more than to minimize this abuse in favour of the State Agent C.A.S. This constitutes a miscarriage of justice and violates rights pleaded in ground # 1;
17. Smith, J. erred in law when holding the courts decision in reserve for a period of time to once again run the statute time allotment out and the appeal was dumped without even a hearing. This constitutes a miscarriage of justice and violates rights pleaded within ground # 1;
18. Smith, J. erred in law when violating the court's organizational pre‑hearing Order. Permitting the State Agent C.A.S. to proceed within a due process as they pleased. This constitutes a miscarriage of Justice and violates rights pleaded within ground # 1;
19. The Court of Appeal rendered a decision on appeal file number CA 23775. This compartment of this adjudication was set with no time for the appellants to prepare due to criminal proceedings. At the oral hearing the parents were denied their legal documents and the decision in no way reflected on any of the appellants oral submissions. The decision had no one writing for the court and entirely was a factual triad when what was being adjudicated was the lack of due process pursuant to the applicable statutes. This constitutes a miscarriage of justice and violates rights pleaded in ground # 1;
20. Smith, J. erred in law when failing to render a decision on a single Constitutional question after days of court time were wasted with the Agents for the Attorney General totally ignoring S. 1 and S. 24(1) of the Charter. These sections ground breaches to individual rights that trigger Section 52 writing up or down legislation or in fact sends it back to the executive arm. This constitutes a miscarriage of justice and violated rights pleaded in ground # 1. The whole question was frustrated in an intellectual legal vacuum;
21. Smith, J. erred in law failing to recognize that the State Agent C.A.S. failed to provide services, uphold the spirit of the Children and Family Services Act 1990 C. 5 S. 1. From start to finish the State Agent reversed the onus on to the parents when they continually failed to discharge this onus as required by law to the child and her immediate and extended family. The State Agent C.A.S. did nothing in over a year and ½ and only took instructions from lawyer Whelton. The lack of due process, conflict of interest and the bias from the bench left the respondents no choice but to pull the plug on this miscarriage of justice. Their grounds of appeal only makes the need for a public inquiry more pressing to protect the administration of justice.
ANALYSIS
[26] On the appeal from the review hearing, this court considered the full record of this proceeding, from its commencement in January 2004 until the November 26, 2004 judgment. The panel at that time considered not only the grounds of appeal set out in the parents’ then notice of appeal, but also whether there was reversible error on any basis.
[27] Accordingly, we have not revisited the present grounds of appeal that concern the proceeding prior to November 26, 2004. As the parents continue to be self represented, we have considered whether the June 22, 2005 decision appealed from reflects reversible error on any basis even if not raised in the parents’ present grounds of appeal.
[28] Because they relate to that portion of the child protection proceeding prior to November 26, 2004, we will not revisit Grounds 5, 8, 9, 14, 15 and 16. Also we will not deal with the sixth, seventh and nineteenth grounds of appeal, which raise arguments about prior orders of this court (in chambers) on other appeals. These orders are not appealable to this court without leave of the Chief Justice or his designate, if at all and are not properly before us. With respect to grounds 1, 2, 3, 4, 10, 11, 12, 13, 17, 18, 20 and 21, we considered each of these grounds only as it relates to the June 22, 2005 decision.
[29] In many of the grounds of appeal the parents’ allege breaches of their Charter rights. We will address only the one Charter issue which was properly before the judge. We have not considered the other alleged Charter breaches raised in the parents’ notice of appeal. This court is not a court of first instance where Charter issues which involve contested facts should be dealt with for the first time. I now turn to the relevant grounds under consideration.
1. Smith, J. erred in law when assuming jurisdiction of subject matter entirely emanating from the Province of Ontario. Smith, J. knew that the Applicant, State Agent C.A.S. were neither capable nor able to call their case to bar. The only jurisdiction was within the Children and Family Services Act and The Courts of Justice Act for the Province of Ontario. The Child and her parents rights were violated as per the Canadian Bill of Rights preamble, Part I (1)(a), (b), (d), (2)(a), (b) and (e) and the Charter s. 2, 7, 11, and 15 of the Judicature Act, R.S., c. 240, s. 43 (10) and (11) Canada and Universal Human Rights Acts;
[30] In this ground of appeal the parents may be objecting to the judge considering their actions in Ontario prior to moving to Nova Scotia. The people involved in their earlier Ontario child protection matters did not testify before the judge.
[31] While the judge was aware of the parents’ history of child abduction concerns in Ontario from the initial affidavit filed by the Society in January 2004 and from reported Ontario decisions, her June 22, 2005 decision was based on evidence of their actions in Nova Scotia. The judge clearly recognized the difference between the evidence she was able to rely on for the first interim hearing pursuant to s. 39(11), evidence that the judge considers credible and trustworthy, and the evidence that she could take into account at the final disposition hearing. She made this point clear to the father several times during the hearing.
[32] The evidence the judge relied on in reaching her decision included: the parents’ agreement that the mother would go into hiding with the child if a child protection proceeding was commenced in Nova Scotia; the armed stand-off in May of 2004 when the judge’s order for temporary care and custody was being enforced; Dr. Pottle’s assessment of the father as having a serious psychotic illness (a delusional disorder - persecutory type) along with a personality disorder with narcissistic antisocial and histrionic personality traits; the parents’ refusal to participate in assessments that were ordered; and the parents’ behaviour in court.
[33] There is nothing in the record substantiating the parents’ claim that the judge relied upon inadmissible evidence. Accordingly we are satisfied there is no merit to Ground No. 1.
2. Smith, J. erred in law with total disregard for fundamental justice and due process of law most evident within the transcripts dated Jan. 15, 2004 Vol. 1 pages 1 to 55 inclusive. The child and her parents rights as pleaded within Ground # 1 were violated and not respected that constitutes a miscarriage of justice;
[34] If the parents are arguing that only the Ontario courts have jurisdiction to deal with this child protection matter because it was the Ontario child protection authority who initially raised concerns with the Society about their parenting of their daughter, this argument is without merit. Nova Scotia courts have jurisdiction over children physically present in Nova Scotia as this child is.
[35] A common theme during the father’s oral argument was that we should ignore the facts and deal only with the law, specifically the lack of due process and fundamental justice in the child protection proceeding. Our review of the record satisfies us the judge did not disregard fundamental justice or due process in her conduct of the proceedings. Quite the contrary, the judge afforded the parties every opportunity to fully participate, sometimes in the face of objections by the Society. For example, the judge gave the father significant latitude in his cross-examination of the Society’s witness.
3. Smith, J. erred in law and fact considering documents filed by the Applicant, State Agent C.A.S.'s application record to be fraudulent, contrary to Ontario Court Orders, unsigned authored documents that would outrage the community's sense of fair play and decency constituting a miscarriage of justice. The respondents were denied an opportunity to respond and rights were violated as per in ground # 1;
[36] The appellants’ focus under this ground is not clear. The only “unsigned authored documents” were those received at the initial interim hearing on January 15, 2004. As referred to in ¶ 31 above, during the hearing that led to the decision under appeal, the judge specifically distinguished this type of evidence that was admissible for the purpose of the first interim hearing from the evidence she would rely on during this final hearing:
And, in fact, to be, to be quite frank with you, the materials on the interim application aren’t before me on a disposition hearing. And that - we’ve discussed that before. That’s because they contain hearsay and other matters, and the materials in a protection application are before me.
[37] There is no merit to this ground of appeal.
4. Smith, J. erred in law by controlling the adducing of evidence in an overwhelming bid to the respondents that led to a pre‑designed conclusion in favour of the State Agent C.A.S. Smith, J. discarded or disqualified witnesses called and or subpoenaed by the respondents that formed some of the subject matter within the State Agent C.A.S. application record. Smith, J. made erroneous rulings pertaining to evidence within medical files of the respondents that were not in dispute with counsel for Dr. Edgar. Smith, J. erred when not ruling that the State Agent C.A.S. bring forward Dr. Edgar, [MABLE] clinic nurse and public duty nurse the only eye witnesses in Nova Scotia to the child's care;
[38] There is nothing in the record indicating the judge controlled the evidence so as to ensure the child would be placed in the permanent care of the Society. Her evidentiary rulings were appropriate. The fact that most of the judge’s decisions did not favour the parents speaks to the evidence and arguments made, not to a predisposition by the judge to take the child from the parents.
[39] In her decision the judge noted the high burden to be met by the Society on the application before her:
In this case, the burden rests upon the Children’s Aid Society of Halifax to establish that [the child] continues to be a child in need of protection and that an Order for Permanent Care would be in her best interests. A Permanent Care and Custody Order is the most intrusive remedy available under the Act and accordingly, the burden on the Children’s Aid Society is a heavy one.
[40] The parents presented no evidence at the hearing other than a few exhibits entered during cross-examination of the Society’s witness. They withdrew the affidavit they had filed in advance of the hearing. The mother refused to participate in the hearing. The father left before its conclusion. As stated before, they did not themselves testify nor did they call other witnesses. The judge cautioned the father, when he elected to leave the hearing, that there would be no evidence to support the parents’ position.
[41] It is also unlikely that the testimony of these medical personnel referred to in this ground of appeal would have made a difference to the judge’s decision. The judge had always accepted that the child was healthy and physically well cared for at the time she was taken into care, which was the evidence the parents could have sought from Dr. Edgar and the nurses. She referred to this in ¶ 6 of her decision:
The evidence that was before the Court at the time of the Interim Hearing (in particular the evidence of the doctor that attended at [the child’s] birth) indicated that the child appeared to be well cared for by the parents.
[42] The issue before the judge was not the physical health of the child when she was taken into care but whether the parents’ mental health and its effect on their actions put the child at risk. The evidence of these medical persons with limited contact with the family would not likely have helped the judge in this determination.
[43] There is no merit to the fourth ground of appeal.
10. Smith, J. erred in law when failing to exercise and assume the courts exclusive original jurisdiction over the prosecution of an offence against the Children and Family Services Act, 1990 C. 5, S. 95. Abduction of children by members of the same family are codified and conferred on the Nova Scotia Supreme Court Family Division within Section 32A(2)(f) of the Judicature Act, R.S. C. 240, S. 32. In addition penalty or penalties are within the Children and Family Services Act, 1990 C. 5, S. 90 to 95 inclusive. This constitutes a miscarriage of justice and violates protected rights pleaded in ground # 1.
[44] The father says that all charges arising from the taking of the child into hiding and the armed standoff should have been dealt with under the Act, by the Family Division of the Supreme Court, rather than under the Criminal Code, by the general division of the Supreme Court, and that, somehow, the judge erred in not ensuring that this was done.
[45] Section 92 of the Act has some similarities to s.282 of the Criminal Code under which the parents were charged in relation to the hiding of their daughter and the armed standoff. The parents however were not charged under this section of the Act, they were charged under the Code. The judge had no jurisdiction to determine which statute the parents were charged under and hence committed no error in relation to something beyond her control. There is no merit to this ground of appeal.
11. Smith, J. erred in law creating a miscarriage of justice when improperly conducting criminal proceedings in a quasi‑criminal manner with total disregard for the respondents right to the presumption of innocence when facing serious criminal sanctions within a criminal court of law. Two courts both adjudicating the same subject matter runs counter to all protected rights within ground # 1;
[46] This ground of appeal may deal with the use of evidence in the child protection matter from witnesses involved in the parents’ criminal matters, specifically Dr. Pottle, the psychiatrist who evaluated the father in connection with the criminal trial. Dr. Pottle did not testify during the June 2005 hearing but his testimony given at the initial review hearing was considered by the judge as permitted by the Act.
[47] A similar argument was made by the parents in their earlier appeal to this court in relation to events prior to November 2004 and was specifically dealt with in this court’s June 22, 2005 decision in ¶ 20 to 24. This Court’s earlier statements apply to the use of Dr. Pottle’s evidence by the judge in reaching her decision under appeal as well. We will not repeat those comments here except to say that Dr. Pottle’s testimony about the father’s mental health is logically relevant to his capacity to parent. It affects his judgments with respect to his daughter. Neither the judge’s use of Dr. Pottle’s testimony nor the inferences which she drew are reflective of error.
[48] If in ground 11 the parents are arguing that the judge erred by “punishing” them a second time in her June 22, 2005 decision for the criminal charges they were already convicted of by a jury on May 12, 2005, there is no merit to this argument. On June 6, 2005 the judge gave a decision during the final disposition hearing on the admissibility of the certificates of conviction with respect to some of the criminal charges laid against the parents as a consequence of the hiding of the child and the armed standoff.
[49] In her decision on the admissibility of these certificates on conviction the judge said:
As I indicated previously, I am satisfied that these certificates are relevant to the matters at issue in the proceeding. I have decided to admit these certificates into evidence; however, if desired, I am going to give the respondents an opportunity to respond to the certificates.
. . .
. . . These certificates will be admitted for the purpose of showing that the [parents] have been convicted of these offences. I will not, in this proceeding, be making any findings as to whether [LF] or [CV] actually were guilty or not guilty of the conduct referred to in the criminal charges, nor will I be making any findings as a result of these certificates, as to their specific involvement or actions in the standoff. The certificates simply show that the [parents] have been convicted of certain criminal offences, as a result of the standoff. If the [parents] provide evidence that they intend to appeal their conviction, then the evidence will also show that the convictions will be appealed. That is the extent to which I will be using this evidence.
[50] This makes it clear the judge was not making any finding of guilt with respect to the criminal charges or any findings as to the parents’ specific involvement in the standoff. Her decision was focussed on whether the child continued to be in need of protection and, if so, whether it was in her best interests to be placed in the permanent care of the Society.
[51] The trial judge did not err in continuing to deal with the child protection matter while the parents were facing criminal charges. The Act sets out very strict time lines within which child protection matters must be completed. The judge was required to ensure compliance with these time lines.
12. Smith, J. erred in law throughout the proceedings when failing to provide legal representation for the child or alternatively protect and represent the child from the bench which is contrary to the best interest of the child. A miscarriage of justice occurred and the child's rights were violated as pleaded in ground # 1;
[52] The parents did not apply to have a guardian or a lawyer appointed for their daughter.
[53] Section 37(3) of the Act provides a court with a discretion to appoint a guardian-ad-litem for a child:
(3) Upon the application of a party or on its own motion, the court may, at any stage of a proceeding, order that a guardian ad litem be appointed for a child who is the subject of the proceeding and, where the child is not a party to the proceeding, that the child be made a party to the proceeding, if the court determines that such a guardian is desirable to protect the childs interests and, where the child is twelve years of age or more, that the child is not capable of instructing counsel.
[54] The judge did not appoint a guardian on her own motion but she did appoint counsel to act as amicus curiae on October 14, 2004 during the review hearing and he continued in that capacity throughout the final disposition hearing. She explained the role of the amicus:
I am not anticipating that the amicus will be actively involved in the questioning of witnesses, or in making submissions to the court, unless Mr. [L.F.] or Ms. [C.V.] specifically request this assistance. I want the amicus to be available to assist the respondents by providing advice on procedural, evidentiary and substantive matters.
[55] While this was not an appointment of counsel for the child, it did ensure the parents, who would normally have the interests of their child uppermost in their minds, had access to counsel during the proceedings. We are not satisfied the judge erred in not exercising her discretion to appoint a guardian for the child.
13. Smith, J. erred in law failing to exercise the court's jurisdiction to conduct proper and timely disposition hearings within the stated time frames. In 6 months, 2 disposition hearings were neither started not completed. Organized pre‑hearings were not conducted and the child was alienated from her parents. The parents were separated, jailed and not in any position to participate properly in the proceedings. This includes the right to conduct examination for discoveries, right to call witnesses, use of the telephone and possession of all legal documents. However Smith, J. continued on with the respondents suffering these abuses directly in the face of the court. This constitutes a miscarriage of justice and violates the rights pleaded in ground # 1;
[56] Under this ground we considered whether the judge erred in continuing with the hearing in light of the father’s position that he was not able to participate properly in the final review hearing due to his and the mother’s incarceration and the consequent restriction on their activities. The final disposition hearing began May 30, 2005.
[57] The father repeatedly told the judge that he was not able to properly prepare for the hearing due to his inability to communicate effectively with his wife and because of not having adequate access in prison to the materials he needed to prepare. Recognizing that she could not dictate how the prison system is run and wanting to accommodate the father’s requests to the extent possible, the judge arranged for the parents to meet alone in the court room with a sheriff or in the “cells” at the court house several times. She arranged for their boxes of materials to be couriered for them. She had assured access to legal advice by the appointment of the amicus who had contact with the parents from time to time. She adjourned from time to time to give the father time to calm down and get focussed. The parents have not suggested what they may have done differently if they had had more time to prepare, such as calling any particular evidence or making any particular argument. Their professed difficulties in accessing their “materials” does not account for why neither testified or called witnesses.
[58] We are not satisfied the judge could have done more to address the father’s complaints in the circumstances.
17. Smith, J. erred in law when holding the courts decision in reserve for a period of time to once again run the statute time allotment out and the appeal was dumped without even a hearing. This constitutes a miscarriage of justice and violates rights pleaded within ground # 1;
[59] The issue here is whether the judge erred by extending the time for completing the final disposition hearing two weeks beyond the time limit set out in the Act to allow her time to provide a written decision. The judge recognized on the last day of the hearing when she had planned to give an oral decision, that she needed more time. She recognized that she had given a deadline to the parents to file a brief, which deadline had not yet arrived, and that she wanted time to review tapes of prior hearings to try to understand what the parents’ closing position would have been if they had participated in the hearing until the end. She recognized she would need longer than the statutory time limit to do this. In light of this she expressly considered and decided that it was in the best interests of the child to extend the time to a specific date to complete these matters and then to provide written reasons.
[60] In this regard the judge stated:
Under s. 45(1) of the Children & Family Services Act where the Court has made an Order for temporary care and custody the total period or duration of all Disposition Orders, including any Supervision Orders, shall not exceed 12 months when the child was under six years of age at the time of the Application commencing the proceeding. Obviously, [the child] was under six years of age at that time. She is under six years of age at the present time and so the timelines under the Act are due to expire shortly. While these timelines are in place for a very good reason and are to be adhered to by the Court if it is in the best interests of the child to extend this timeline, the court has the ability to do so. In this regard, I refer to the Court of Appeal decisions in CAS and Family Services of Colchester County v. HW, Nova Scotia Minister of Community Services v. DF, MS v. Children's Aid Society of Cape Breton Victoria and the very recent decision of Children's Aid Society of Cape Breton Victoria v. AM. In that latter decision, the Honourable Justice Cromwell indicates that these time limits should not be extended in order to permit a determination to be made in the child's best interests unless at the time that they are extended, the judge determines that it is in the best interests of the child to do so. Further, his Lordship states that such extensions should not be open‑ended but rather strictly constrained in accordance with the principles set out in the Children & Family Services Act.
In this case, I am satisfied that it is in the best interests of [the child] that I extend the timeline under s. 45(1) of the Act to allow me a reasonable period of time to review the evidence, go back and listen to the previous submissions made by [the father and the mother] in the previous Review Hearings and to fully consider the various issues and to prepare a written decision. As stated by Justice Cromwell, however, such extensions should be strictly constrained in accordance with the principles set out in the Act. Accordingly, I hereby extend the timeline under s. 45(1) of the Children & Family Services Act until June 22nd, 2005 which is two weeks from today. My Order of April 21st, 2005 will remain in effect until that time. That is my ruling on the extension of the timelines and you will have my decision no later than June 22nd, 2005.
[61] Before extending the time the judge considered the law governing such extensions and whether such an extension was in the best interests of the child. Once she determined such an extension was in the best interests of the child she set a reasonable time frame to complete the hearing. We are satisfied the judge did not err.
18. Smith, J. erred in law when violating the court's organizational pre‑hearing Order. Permitting the State Agent C.A.S. to proceed within a due process as they pleased. This constitutes a miscarriage of Justice and violates rights pleaded within ground # 1;
[62] This ground of appeal relates to two rulings made by the judge on June 6, 2005 during the final disposition hearing. The first concerns the fact that she admitted certificates of conviction with respect to some of the charges laid against the parents with respect to the armed standoff. These were admitted into evidence after the dates she had set for the Society to file its affidavits in connection with the final hearing. She did this for the limited purpose of establishing that the parents had been convicted, not to prove that they had committed the crimes of which they were convicted. She also recognized, as a fact, that the parents had appealed these convictions. In her second ruling, she decided to rely upon the Society’s brief with respect to the final disposition hearing which had been filed by the Society on May 12, 2005, but which was not received by the parents until May 15, 2005.
[63] With respect to the admission of the certificates of conviction the judge stated:
I will also state that I am satisfied that the Children’s Aid Society of Halifax could not possibly have filed these documents within the time lines set by the Court at the organizational per-hearing conference, as the convictions had not been entered by that time.
[64] She also said:
As I indicated previously, I am satisfied that these certificates are relevant to the matters at issue in the proceeding. I have decided to admit these certificates into evidence; however, if desired, I am going to give the respondents an opportunity to respond to the certificates.
. . .
These certificates will be admitted for the purpose of showing that the [parents] have been convicted of these offences. I will not, in this proceeding, be making any findings as to whether [LF] or [CV] actually were guilty or not guilty of the conduct referred to in the criminal charges, nor will I be making any findings as a result of these certificates, as to their specific involvement or actions in the standoff. The certificates simply show that the [parents] have been convicted of certain criminal offences, as a result of the standoff. If the [parents] provide evidence that they intend to appeal their conviction, then the evidence will also show that the convictions will be appealed. That is the extent to which I will be using this evidence.
[65] With respect to the consideration of the late served brief, the judge stated:
Okay, now what I want to do is move on to the second issue that I was to rule on this morning, and that's the admission of the pre‑hearing memorandum filed by the Children's Aid Society of Halifax in relation to the final disposition hearing. [The father] has objected to the Children's Aid Society relying on their pre‑hearing memorandum at the organizational pre‑hearing conference held on March 18th, 2005. I directed that the Children's Aid Society of Halifax file and serve their pre‑hearing memorandum on the respondents by May 12th, 2005. This memorandum was filed with the Court by that date, but it appears that it was not served on the respondents until May 15th, 2005. [The father] submits that since this memorandum was not served on he and his wife by the 12th, it should not be relied on by the Children's Aid Society of Halifax.
The irony of [the father]'s position is not lost on the Court. I am hard pressed to think of an occasion where [the father or the mother] have complied with the filing deadlines set by the Court. Nevertheless, I will consider [the father]'s submissions in this regard. The issue, from my perspective, is whether [the father and the mother] have been prejudiced by the late service of this document upon them, as the record will show this proceeding has been extended. It was originally scheduled to take place May 16th through to and including June 2nd of 2005. It's now June 6th, and the permanent care hearing continues, and I anticipate we may be here for a number of days yet. I'm satisfied that [the father and the mother] have had a sufficient opportunity to review that memorandum, and that they've not been prejudiced in any significant way by the fact that it wasn't serve upon them on May 12th, 2005, but rather was served on May 15th, 2005, and accordingly I will be taking that briefing into account, when making my deliberations. If there are any comments that [the father or the mother] want to make in relation to that brief during summation, they're certainly entitled and welcomed to make those comments at that time period.
[66] No error is disclosed in the judge’s treatment of these matters.
20. Smith, J. erred in law when failing to render a decision on a single Constitutional question after days of court time were wasted with the Agents for the Attorney General totally ignoring S. 1 and S. 24(1) of the Charter. These sections ground breaches to individual rights that trigger Section 52 writing up or down legislation or in fact sends it back to the executive arm. This constitutes a miscarriage of justice and violated rights pleaded in ground # 1. The whole question was frustrated in an intellectual legal vacuum;
[67] There is no merit to this ground of appeal. It is clear the judge did render a decision on the one constitutional question properly before her, commencing at ¶ 76 of her decision (2005), 235 N.S.R. (2d) 67.
[68] The judge set out the only constitutional question before her:
[77] . . . Whether psychiatric or psychological assessments of a parent or parents whose offspring are in state care or who are subject to becoming state wards by virtue of s.22(2) (b) and s.22(2)(g) of the Children and Family Services Act violate s.2(a), s.2(b), s.7 and s.15 of the Canadian Charter of Rights and Freedoms.
[69] At ¶ 20 above we have quoted from the judge’s decision on this issue. The parents failed to establish that their Charter rights or freedoms were violated. Following this decision the judge continued:
[98] There is one additional matter that I should raise in this regard. The refusal of L.F. and C.V. to be assessed by a psychiatrist or a psychologist was only one piece of evidence that I have taken into account in coming to my final decision in relation to M.C.F. Regardless of their refusal to participate in these assessments, I am satisfied that M.C.F. continues to be a child in the need of protective services and that it is in her best interests that she be placed in the permanent care and custody of the Children's Aid Society of Halifax.
[70] On the record before her we are not satisfied the judge erred in concluding that the parents had not proved that any of their Charter rights were violated.
21. Smith, J. erred in law failing to recognize that the State Agent C.A.S. failed to provide services, uphold the spirit of the Children and Family Services Act 1990 C. 5 S. 1. From start to finish the State Agent reversed the onus on to the parents when they continually failed to discharge this onus as required by law to the child and her immediate and extended family. The State Agent C.A.S. did nothing in over a year and ½ and only took instructions from lawyer Whelton. The lack of due process, conflict of interest and the bias from the bench left the respondents no choice but to pull the plug on this miscarriage of justice. Their grounds of appeal only makes the need for a public inquiry more pressing to protect the administration of justice.
[71] The first aspect of this twenty-first ground of appeal is the allegation that the judge erred in ordering that the child be placed in the permanent care of the Society because the Society failed to provide services to the parents and the child in an effort to keep the family together. A similar argument was made before the judge. She stated:
[72] C.V. and L.F. have suggested that the Children's Aid Society of Halifax has failed to provide services to them to promote the integrity of their family. The irony of this position is not lost on the Court. Throughout this proceeding the Respondent parents have rejected the services that were offered by Children's Aid. They have, to put it mildly, fought Children's Aid every step of the way. In my view, it was reasonable for the Children's Aid Society of Halifax to begin by offering to assess the parents and then see what further services would be recommended by the assessors to assist in reuniting the family. In the circumstances of this case, I am fully satisfied that the services offered to C.V. and L.F. were appropriate and I reject the suggestion that the Children's Aid Society of Halifax has somehow failed in this regard.
(Emphasis mine)
[72] While the record indicates that both parents have problems that may or may not be alleviated by any counselling or treatment services that might have been provided by the Society, the judge was satisfied the Society’s decision to obtain assessments of the parents first in order to decide what services to offer was reasonable. Because the parents refused to participate in these assessments, the Society could not determine what services were needed. The judge made no reviewable error in concluding that the Society had not failed in its duty to provide services to the parents.
[73] The second aspect of this twenty-first ground of appeal alleges a reversal of onus. The judge dealt with the burden of proof in her decision:
[35] Section 2(2) of the Children and Family Services Act indicates that in all proceedings and matters pursuant to that Act, the paramount consideration is the best interests of the child. Clearly, however, a child will not be placed in care unless the Court is satisfied that the child is in need of protection. In this case, the burden rests upon the Children's Aid Society of Halifax to establish that M.C.F. continues to be a child in need of protection and that an Order for Permanent Care would be in her best interests. A Permanent Care and Custody Order is the most intrusive remedy available under the Act and accordingly, the burden on the Children's Aid Society is a heavy one.
(Emphasis added)
[74] The judge referred to the correct onus and there is no indication in the record that she failed to apply it. The burden, throughout remained on the Society to establish its case.
[75] At the hearing before us the father took objection to this court’s reference in its prior decision to Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165, suggesting that case was not relevant to his family’s circumstances because the facts are completely different. We agree that the facts are not comparable. The case however was not referred to for its similar facts, but for its legal principles: (1) the two-stage test for determining at the final disposition hearing whether the child is in need of protection and (2) that the need for continued protection may arise from circumstances which have occurred since the granting of the first order for child protection.
DISPOSITION
[76] For the foregoing reasons, we dismiss the appeal.
MacDonald, C.J.N.S.
Bateman, J. A.
Hamilton, J.A.