Date: 20000427
Docket: CA 160889
NOVA SCOTIA COURT OF APPEAL
[Cite as: Nova Scotia (Community Services) v. S.E.L., 2000 NSCA 55]
Chipman, Pugsley and Flinn, JJ.A.
BETWEEN:
S. E. L. and L. M. L.
Appellants
- and -
MINISTER OF COMMUNITY SERVICES
Respondent
_____________________________________________________________________
REASONS FOR JUDGMENT
_____________________________________________________________________
Counsel: Colin M. Campbell, for the Appellant, S.E.L.
Karen L. Hudson, for the Appellant, L.M.L.
Gordon R. Kelly and James Leiper for the Respondent
Appeal Heard: March 30, 2000
Judgement Delivered: April 27, 2000
THE COURT: The appeal is dismissed as per reasons for judgment of Chipman, J.A.; Pugsley and Flinn, JJ.A., concurring.
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.
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Editorial Notice
Identifying information has been removed from this unofficial electronic version of the judgment |
CHIPMAN, J.A.:
[1] This is an appeal from a decision and order of Campbell, J. of the Supreme Court (Family Division) determining that F.A.L., a child of the appellants, was in need of protective services following a hearing pursuant to s. 40 of the Children and Family Services Act, S.N.S. 1990, c. 5, as amended, and that the child remain in the custody of the respondent, Minister of Community Services, pending a disposition hearing.
[2] Since 1987, continuous and intensive parental support services have been provided by the Department of Community Services and other agencies to the appellants and their six other children, born between November *, 1987 and March *, 1998.
[3] On March 28, 1998, these six other children were taken into care of the respondent pursuant to the Act. A protection hearing was held over four days in May of 1998 before the Honourable Judge Robert White of the Family Court. By his decision dated July 3, 1998, Judge White found the children to be in need of protective services. Following a disposition hearing pursuant to s. 41 of the Act, Judge White held that the children should remain in the temporary care and custody of the respondent. On March 18, 1999, following a review hearing pursuant to s. 46(5)(c) of the Act, Judge White ordered that the six children be placed in the permanent care and custody of the respondent.
[4] F.A.L. was born on May *, 1999 and on that day, the respondent commenced a protection application pursuant to the Act respecting her. At an interim hearing pursuant to s. 39(3) of the Act, held on June 7, 1999, Williams, J. of the Family Division held that there were reasonable and probable grounds to believe that the child was in need of protective services and he continued her placement in the respondent’s care and custody.
[5] On June 7, 1999, the appellants consented to an order pursuant to s. 96(1) of the Act admitting as evidence in the proceedings the evidence from the two previous child protection hearings before Judge White respecting the other six children.
[6] An interim hearing pursuant to s. 39 of the Act (the so-called 30 day hearing) was held on June 22, 23 and 25, 1999, before Campbell, J., following which he ordered that F.A.L. was in need of protective services and continued her placement in the care and custody of the respondent.
[7] An interim report dealing with the advisability of F.A.L. remaining with the appellants was prepared by a psychologist, Dr. Ruth Carter, of the I.W.K. Grace Health Centre. The protection hearing pursuant to s. 40 of the Act was scheduled to take place before Campbell, J. on August 23, but following objection by the appellants to the receipt of Dr. Carter’s report based on Civil Procedure Rule 69.08(4), Campbell, J. found that it was in the best interests of the child that the protection hearing be adjourned beyond the time limit prescribed by s. 40 of the Act. This would allow the court to have the benefit of Dr. Carter’s complete report, and to give the parties adequate opportunity to review it prior to the hearing.
[8] Dr. Carter’s final assessment report was completed on or about October 5, 1999. A psychiatric assessment of the female appellant had been completed by Dr. Khalil Ahmad, a psychiatrist, on or about August 12, 1999.
[9] The protection hearing was held by Campbell, J. on October 27 and 28, 1999. In addition to the evidence in the previous hearings which was already before him, there was evidence in the form of affidavits, cross-examination on her affidavit of a caseworker from the Department of Community Services and the viva voce evidence of Dr. Carter, Dr. Ahmad and that of both appellants.
[10] On November 9, 1999, Campbell, J. rendered his decision finding that F.A.L. was in need of protective services. She was to remain in the care and custody of the respondents and the appellants were to be given supervised access to her. The order giving effect to this decision was made on November 24, 1999, and provided that a disposition hearing pursuant to s. 41(1) of the Act was to be held on a date to be fixed.
[11] Pursuant to s. 49 of the Act, the appellants appeal this decision and order to this Court. They submit that Campbell, J. erred:
[12] (1) in extending the time limit provided by the Act for holding the protection hearing;
[13] (2) in shifting the burden of proof to the appellants by reason of the fact that they did not appeal the earlier decisions of Judge White respecting their other six children;
[14] (3) in basing his decision on that of Judge White in the earlier decisions;
FIRST ISSUE:
[15] In extending the time limit for the protection hearing, Campbell, J. was exercising a discretion vested in him whenever the best interests of the child mandate such an extension of the directory, not mandatory time limits found in the Act. See Children Aid’s Society and Family Services of Colchester County v. H.W., et al. (1996), 155 N.S.R. (2d) 334 (N.S.C.A.) at p. 340. Campbell, J., in exercising this discretion, emphasized that the court would not ordinarily extend the time, but he found as a fact that the child’s best interests required him to do so. Specifically, while the report of Dr. Carter could be admitted on short notice, it would not be available to the appellants in sufficient time to give them a full opportunity to assess it and reply to it. This would not, in his view, be in the child’s best interests.
[16] The appellants have not shown that in exercising his discretion in this manner, Campbell, J. erred. Campbell, J. has given a clearly articulated and valid reason for the exercise of this discretion. I would reject this ground of appeal.
SECOND ISSUE:
[17] The evidence given before Judge White respecting the appellants and the other six children was before Campbell, J. by virtue of s. 96(1) of the Act. Judge White’s decisions were not appealed by the appellants.
[18] The appellants rely on certain comments made by Campbell, J. during the course of the 30 day hearing in June, 1999, in support of their submission that at the protection hearing which commenced in October, 1999, he shifted the burden of proof to the appellants to show that the child was in need of protective services. They are:
. . . the fact that Judge White made certain findings that led to certain conclusions and an outcome does not mean that your client’s case is automatically lost. But at the same time, those findings haven’t been appealed, and they stand on the record, and that leaves you in the position, Mr. Campbell, I think of showing and convincing the Court that there is no future risk to this particular child. And that’s where the case will turn, as to the extent to which prior history, which is the subject of a finding, will impact on the question of whether there’s risk to this child. So you can continue to - you can continue to inquire, in terms of matters that you think will cause me to be satisfied that there’s no risk, that there’s not sufficient risk, I should say.
[19] They also rely on the following comment by Campbell, J. in his decision following the protection hearing.
The decisions of the Honourable Judge R.J.L. White . . . are relied on heavily by the Applicant. It’s not necessary for me to repeat major portions of these decisions. These findings are a matter of record and of course I adopt them. These decisions were not appealed . . .
[20] The respondent submits that where evidence from prior child protection proceedings is before a court, the court must, by operation of the doctrines of issue estoppel and collateral attack, adopt the findings from the decisions in the prior proceedings with respect to the circumstances of the parties as they were at the time of the earlier decision. Alternatively, the respondent says that such is the position where evidence from prior child protection proceedings is admitted pursuant to s. 96(1) of the Act, as was the case here.
[21] The appellants submit that the earlier decisions of Judge White were not evidence or, in the alternative, that they were not binding in the protection hearing, but were at best a guide.
[22] It should be observed at the outset that s. 40(5) of the Act dealing with the protection hearing directs that the court shall determine whether the child is in need of protective services as of the date of the protection hearing.
[23] In Catholic Children’s Aid Society of Metropolitan Toronto v. C.M. , [1994] 2 S.C.R. 165, the Supreme Court of Canada dealt with the subject of status review hearings under the Child and Family Services Act of Ontario, R.S.O. 1990, c. C11. The court stated at para. 35 that it is not the function of a status review hearing to retry the original need for protection order. That order is set in time and must be assumed to have been properly made at the time. The point, however, was made that courts must continually evaluate the need for state intervention in family matters in order to ensure that the objectives of the legislation are met. Thus, although the prior decisions must be taken to have been properly made at the time, they are not res judicata of the issues before the court at a later hearing. Once a finding of the need for protection has originally been made, there is still the requirement upon a status review to consider whether the child is or is no longer in need of future protection. Children’s needs and family circumstances are continually evolving and these ever changing circumstances must be taken into account. [24] In my opinion, the principles applied in Catholic Children’s Aid Society, supra, respecting the status review application under the Ontario Legislation are appropriate in determining the weight to be assigned to previous decisions before the judge at the time of the protection hearing. In short, the previous decisions are to be taken as properly made at that time, for what that may, in the circumstances, be worth.
[25] The previous decisions of Judge White dealt with the capabilities of the appellants to parent six other children. The extensive evidence supporting Judge White’s findings that the appellants lacked the ability to properly do so was, along with the findings, before Campbell, J. The appellants’ counsel characterizes this earlier evidence as a “mountain”. He referred to the list of orders of productions, affidavits, and transcripts as “overwhelming”. Nevertheless, this material does support Judge White’s decisions in painting a very unfavourable picture of the capabilities of the appellants as parents generally.
[26] The last finding of Judge White as to the appellants’ inability to parent their other six children was made on March 18, 1999 on the basis of evidence heard in February 1999, less than four months before the birth of F.A.L. There was thus a close proximity in time between February, 1999 and the protection hearing some eight months later. The circumstances existing in February, 1999 are certainly relevant in considering whether F.A.L. was in need of protective services as of the date of the protection hearing. Without any additional evidence, a court would have the gravest concerns - as did the agency when it apprehended F.A.L. immediately following her birth.
[27] However, in this case, there was additional evidence. One of the passages to which I have referred, and on which the appellant relies, makes clear that Campbell, J. was prepared to take into account such evidence should it be produced.
[28] There was evidence that when the community care worker visited the appellants’ home, it appeared neat and clean. However, the evidence of past parenting with respect to the other children clearly raised the greatest of concerns, and amply supported the conclusions of Judge White. There was also the additional evidence from Drs. Carter and Ahmad clearly supporting the conclusion that, in view of the history, there was too much risk to F.A.L. to leave her with her parents. In particular, Dr. Carter opined that there had been insufficient time for the appellants to have made any serious or dramatic changes in their personal or family functioning, and as such, there was little that could be recommended for them until they understood and accepted their role in the problems identified over the previous 12 years. Dr. Ahmad was of the view that the female appellant had very little insight into her problem, mentioning to him that she was going to get her children one way or the other. He found her untrusting of people and believed that it might take a long time for her to trust and confide in any mental health professional. As she did not see anything wrong, it may be difficult for her to agree to see one who could be of any benefit to her.
[29] It is clear from reading Campbell, J.’s decision as a whole, and the questions he put to counsel during argument that he did not give undue weight to the previous evidence or shift the burden of proof. He used the earlier evidence properly in conjunction with the evidence lead before him in coming to his conclusion. He recognized that he was dealing with a different situation from that which confronted Judge White. The following passages from his decision capture his reasoning process.
. . . Those findings are a matter of record, and of course, I adopt them. These decisions were not appealed and evidence given by those witnesses who testified at the subject hearing and at the interim hearing which preceded it are largely consistent with those findings on matters that are relevant to the Court’s decision . . .
. . .
. . . The fact that gives the Court the greatest concern is the difference between the stress and the weight of the task associated with one child versus a household that at one point was five children and then of course the birth of a sixth child who was apprehended as well at birth. There could be no doubt that the task is less onerous with one child, and that, in itself, would have caused the Court to give serious attention to testing the arrangement when that particular new circumstance differentiates the situation from the varied past history about which or from which the Court is asked to assess risk. Having considered that seriously and having heard the evidence of the professional witnesses about that point and having heard from counsel, I conclude that in this particular case, the history has simply been so extensive both in terms of time, 11 years, and so significant in terms of the amount of neglect and the extent to which the Respondents are unwilling to agree that that neglect had occurred would cause me to conclude, as I do in this case, the young child, the baby, is in need of protective services, that in fact the interim or continued disposition of the matter requires an order for temporary care and custody to the Minister of Community Services, because to order something less intrusive would subject the child to the type of substantial risk that is not permissible under the Act. So I will grant an order for the temporary care and custody in the Minister . . .
(emphasis added)
[30] As this Court pointed out in Minister of Community Services v. S.Z., et al. (1999), 179 N.S.R. (2d) 240 at paras. 11 to 13, evidence of past parenting is invaluable in assessing the fitness of parents to continue with the custody of their children. As in that case, I am satisfied that the trial judge did not place undue emphasis on past parenting, but properly used it in addition to the other evidence before him in coming to the conclusion that there was too much risk involved in leaving the child with the appellants. That point was driven home in the evidence before him from Dr. Carter and Dr. Ahmad. Campbell, J. did not, in effect, reverse the burden of proof which rested upon the respondent in the proceedings. His decision was amply supported by the evidence. It contained no discernible errors, let alone any palpable or overriding ones, and was not shown to be unreasonable in any way.
[31] I would dismiss this ground of appeal.
THIRD ISSUE:
[32] A review of Campbell, J.’s decision makes clear, as I have already said, that he rendered his decision on the basis of all of the evidence before him and did not simply base it on the earlier decisions of Judge White.
[33] I would also dismiss this ground of appeal.
[34] In the result, the appeal should be dismissed.
Chipman, J.A.
Concurred in:
Pugsley, J.A.
Flinn, J.A.