Docket: CA 183381
NOVA SCOTIA COURT OF APPEAL
[Cite as: R.B. v. Children’s Aid Society of Nova Scotia, 2002 NSCA 108]
BETWEEN:
R.B.
Applicant/Appellant
- and -
CHILDREN’S AID SOCIETY OF NOVA SCOTIA and
S.F.
Respondents
D E C I S I O N
Counsel: Donna D. Franey for the appellant
John Underhill for the respondent Children’s Aid Society
of Halifax
Respondent S.F. not appearing
Application Heard: July 25, 2002
Applicant’s brief August 16, 2002
Respondent Society’s brief August 30, 2002
Decision Delivered: September 5, 2002
BEFORE THE HONOURABLE JUSTICE CROMWELL IN CHAMBERS
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.
CROMWELL, J.A.: (in Chambers)
Introduction:
[1] R.B. applies to me in Chambers for an order that she be added as a party so that she can appeal a permanent care order respecting her granddaughter.
[2] R.B. is the paternal grandmother of two and one-half year old L.T.F. L.T.F. was the subject of protection proceedings brought by the Children’s Aid Society of Halifax in the Family Division. R.B. did not participate in those proceedings. She says she had indicated to the Society that she was willing to be considered as a placement for the child if the plan to return the child to her mother did not progress as anticipated. In the end, the proceedings resulted, in June of this year, in an order placing the child in the permanent care and custody of the Children’s Aid Society of Halifax. According to R.B., she found out about the order after the fact. She feels that the Society wrongly shut her out of the process and that the judge in the Family Division erred in not considering a family placement with her before making the permanent care order.
[3] The application raises two issues. The first is whether I, sitting as a judge in Court of Appeal Chambers, have the authority to deal with the application. The second is whether R.B. should be added as a party for the purposes of bringing an appeal.
[4] Having considered the helpful briefs of counsel and the authorities, I am of the view that a judge of the Court of Appeal in Chambers does not have authority to make the order requested. Even if I had jurisdiction to do so, I would not make the order as, in my opinion, an application to the Family Division for leave to terminate the permanent care order appears likely to be a more appropriate initial way for R.B. to proceed. I, therefore, dismiss the application.
II. Adding Parties for the Purposes of Pursuing an Appeal:
[5] R.B. submits that there are two bases on which this Court may add her as a party for the purposes of appealing the permanent care order. I will briefly outline the submissions with respect to each of them.
[6] The first is found in ss. 36(1)(f), 31 and 49 of the Children and Family Services Act, S.N.S. 1990, c. 5 as amended. Under s. 31, the definition of a proceeding in the Act includes an appeal to this Court of a permanent care order made in the Family Division. Section 36 defines a party to a proceeding as including “... any other person added as a party at any stage in the proceeding pursuant to the Family Court Rules”. It is argued that the provision in s. 36, which authorizes the addition of a party at any stage of the proceeding, includes the power of this Court to add a party for the purposes of an appeal.
[7] The second basis on which R.B. says there is jurisdiction to add a party for the purposes of appealing is the preserved inherent jurisdiction of this Court. In Société des Acadiens du Nouveau-Brunswick Inc. and the Association des conseillers scolaires francophones du Nouveau-Brunswick v. Association of Parents for Fairness in Education, Grand Falls District 50 Branch, [1986] 1 S.C.R. 549, the Supreme Court of Canada held that the New Brunswick Court of Appeal had inherited the authority of the High Court of Chancery in England to add a party for the purposes of bringing an appeal from a decision in which that party had an interest. Briefly put, R.B.’s submission is that this Court is in the same position as the New Brunswick Court of Appeal.
[8] The Children’s Aid Society contests the jurisdiction of this Court or a judge to make the order sought. However, in light of the conclusions that I have reached, I need not decide whether the Court has the authority on either or both of the bases advanced by R.B. to add a party for the purposes of appealing. To consider the authority of a Chambers judge I will assume, without deciding, that this Court has that authority. The question, then, is whether a judge in Chambers may exercise the power of the Court in this situation.
III. Jurisdiction of a Chambers Judge:
[9] In general, all the powers of the Court of Appeal are exercised by a panel of at least three judges. The powers exercisable by one judge of the Court in Chambers are limited to the matters assigned to a Chambers judge under Rule 62 or any other Rule or enactment: see Rule 62.24 and Future Inns Canada lnc. v. Nova Scotia (Labour Relations Board) (1996), 154 N.S.R. (2d) 358; N.S.J. No. 434 (Q.L.)(N.S.C.A. Chambers).
[10] R.B. submits that a Chambers judge generally has authority to deal with procedural matters and the addition of a party for the purposes of bringing an appeal is such a matter. Even accepting that this rather significant step is a procedural matter, the power of a Chambers judge in this Court is not dependent on the distinction between matters of procedure and matters of substance. The Chambers judge’s authority, while mainly procedural in nature, depends on specific authority found in the applicable Rules or enactments.
[11] If there is an inherent power, derived from English Chancery practice, to add a party for the purposes of bringing an appeal, this preserved inherent jurisdiction is that of the Court, not one judge of the Court. In the New Brunswick case cited earlier, a Court of Appeal Chambers judge decided that under New Brunswick practice, the inherent jurisdiction to add a party for the purposes of appealing should be exercised only by the Court. Assuming (without deciding) that our Court has a similar inherent power, there is no rule or enactment to which I have been referred which authorizes a judge in Chambers to exercise it.
[12] R.B. relies on Rule 62.01(j) which defines “respondent” to include “any person, who ... is authorized by the Court or a Judge to be a party to the appeal...”. I do not think this assists R.B.’s position. Putting aside that she seeks to become an appellant, not a respondent, Rule 62.01(j) is purely a definition provision and should not be interpreted as conferring jurisdiction.
[13] If the power to add a party derives from the provisions of the Children and Family Services Act, I cannot read them as conferring any power to do so on a judge of the Court of Appeal. In general, the powers of the Family Court and the Family Division of the Supreme Court are exercised by a judge thereof. However, as noted, generally the powers of the Court of Appeal are exercised by a panel of at least three judges. In my opinion, if s. 36 confers the authority to make the order asked for by R.B., the authority is conferred on the Court, not on a Chambers judge.
[14] R.B. argues by analogy from the jurisdiction of a Chambers judge to permit intervention on appeal. In my view, however, the jurisdiction of a Chambers judge of this Court depends on an express or implied grant of power in a rule or enactment and not on analogy. Moreover, the authority of a judge to permit intervention was controversial before the amendment of the Rules to expressly permit it, and the amendment did not extend to empowering a judge to add a party for the purposes of appealing: see Conrad v. Snair (1995), 142 N.S.R. (2d) 224; N.S.J. No. 622 (Q.L.)(N.S.C.A. Chambers); 1874000 Nova Scotia Ltd. v. Adams (1996), 156 N.S.R. (2d) 208; N.S.J. No. 456 (Q.L.)(N.S.C.A. Chambers); Labourers’ International Union Local 1115 v. Dexter Construction Co. (1999), 180 N.S.R. (2d) 129; N.S.J. No. 370 (Q.L.)(N.S.C.A. Chambers); Rule 62.35.
[15] I conclude that I do not have jurisdiction to add R.B. as a party for the purposes of appealing the permanent care order.
IV. Discretion:
[16] If a Chambers judge had jurisdiction to make the order sought by R.B., that authority would be a discretionary one. For a number of practical reasons, I would be very reluctant to exercise the discretion given that there appears to me to be a more appropriate route for R.B. to seek redress initially in this situation.
[17] It seems likely that R.B. may be able to seek party status for the purposes of seeking leave to apply in the Family Division for an order terminating the permanent care order: see Children’s Aid Society of Shelburne County v. I.C. (2001), 196 N.S.R. (2d) 70; N.S.J. No 260; 2001 NSCA 108. If this is so, that approach would be immensely preferable to adding a party for the purposes of an appeal.
[18] The Family Division not only has intimate knowledge of the permanent care proceedings, but is better equipped to deal with the evidentiary matters which are likely to arise in the course of R.B.’s attempts to place her position before the Court. The Family Division would also be in the position to deal with the permanent care order on its merits whereas this Court, if persuaded that R.B’s plan for the child should have been heard and considered, would most likely find it necessary to remit the matter to the Family Division for evaluation of her plan for the child. This would add to delay which the Children and Family Services Act tries to avoid.
[19] While there might be particular circumstances in which a judge of this Court, if he or she had jurisdiction, would make the order sought, there is nothing in the material filed that would persuade me to do so in this case.
[20] I should add that it is apparent from the material filed that there are a number of issues of fact surrounding R.B’s involvement with the child and the proceedings as well as the Society’s communications with her. Nothing which I have said in these reasons should be taken as deciding any of these factual issues.
V. Disposition:
[21] In the result, the application is dismissed.
Cromwell, J.A.