Citation: B.H. v. Minister of Community Services, 2009 NSCA 67
Date: 20090617
Docket: CA 309398
Registry: Halifax
Between:
B.H.
Appellant
v.
Minister of Community Services and M.F.
Respondents
Restriction on publication: Pursuant to s. 94(1) Children and Family Services Act
Judges: Roscoe, Hamilton, Fichaud, JJ.A.
Appeal Heard: June 10, 2009, in Halifax, Nova Scotia
Held: Appeal is dismissed without costs, per reasons for judgment of Hamilton, J.A.; Roscoe and Fichaud, JJ.A. concurring.
Counsel: Sharon L. Cochrane, for the appellant
Peter C. McVey, for the respondent Minister of Community Services
The respondent M.F. not present
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:
[1] The appellant, B.H., appeals from the unreported judgment dated February 17, 2009 of Judge Marci Lin Melvin of the Nova Scotia Family Court. The appeal is limited to the interpretation of s.48(6)(c)(ii) of the Children and Family Services Act (“Act”), S.N.S. 1990, c.5, to determine whether it prevents an application to terminate a permanent care order being made without leave of the court until the expiry of six months after an order dismissing an application for leave to terminate such an order.
[2] The relevant provisions of the Act provide:
48 (3) A party to a proceeding may apply to terminate an order for permanent care and custody or to vary access under such an order, in accordance with this Section, ....
...
(6) Notwithstanding subsection (3), a party, other than the agency, may not apply to terminate an order for permanent care and custody
(a) within thirty days of the making of the order for permanent care and custody;
(b) while the order for permanent care and custody is being appealed pursuant to Section 49;
(c) except with leave of the court, within
(i) five months after the expiry of the time referred to in clause (a),
(ii) six months after the date of the dismissal or discontinuance of a previous application by a party, other than the agency, to terminate an order for permanent care and custody, or
(iii) six months after the date of the final disposition or discontinuance of an appeal of an order for permanent care and custody or of a dismissal of an application to terminate an order for permanent care and custody pursuant to subsection (8),
whichever is the later;...
[3] The relevant facts are straight forward. On July 16, 2008, an order was granted placing the appellant’s then three year old child in the permanent care and custody of the respondent, the Minister of Community Services (Kings County). On August 18, 2008 the appellant applied for leave to have the permanent care order terminated. She was prevented at that time from applying to terminate the order without leave by s.48(6)(c) which provides a six month period following a permanent care order for a child protection agency to place a child for adoption, unless leave to apply to terminate is granted by the court. The appellant’s application for leave was denied by oral decision on November 12, 2008. By the time the order denying leave was issued on January 16, 2009, six months had elapsed from the date the permanent care order was granted. The appellant applied on January 29, 2009 to terminate the permanent care order.
[4] At the hearing scheduled for the appellant’s application to terminate the permanent care order, the judge found that she did not have jurisdiction to hear the appellant’s application at that time because of the January 16, 2009 order dismissing her leave application. It is that decision the appellant has appealed.
[5] In deciding that s.48(6)(c)(ii) prevented an application to terminate being made until six months after an order dismissing a leave application, the judge referred to the wording of s.48(6). She then considered whether or not leave is a preliminary stage in an application to terminate or whether it is an entity on its own by taking into account the factors weighed by the court when deciding whether a leave application should be granted to see how those factors related to the factors considered on an application to terminate without leave. She stated:
In D.L.G. v. Family and Children’s Services of King’s County et al (1995), 136 N.S.R. (2d) 131, Judge Levy, at page 133 states:
[7] An application to terminate a care and custody order of necessity interjects delay and uncertainty into an Agency's plans for children. It may well be that this delay and uncertainty would compromise the best interests of the children. So too might the possibility of further assessments, (48 (8) (c)), and the distraction of Agency workers from the task of settling the child. If a parent could keep the Agency and its plans on a permanent hold simply by continuously applying for termination, much of, if not the entire value of a permanent care and custody order would be lost. Certainly any undue delay in settling children or commencing the necessary "healing" process can prejudice a child's healthy development.
[8] Wisely, the Act seeks not to altogether forbid or preclude an application within the six month period. There may be any number of circumstances that would justify proceeding with such an application to terminate. Imposing the necessity of, (and granting the opportunity to), obtain leave is a mechanism to secure balance and flexibility for appropriate circumstances.
Judge Levy, in D.L.G. v. Family and Children’s Services of King’s County et al, supra, goes on to say, at page 133:
[10] ... essential to the ultimate success of any application when leave to be granted is proof that it would be in the child's best interests to terminate (48(10)(b)) ...
And at page 134:
[11] ... the applicant for leave must, in my opinion, present ostensibly credible and weighty evidence that those deficiencies in the parent or her circumstances that led to the care and custody order being granted have improved, or are being convincingly and meaningfully addressed with a realistic expectation of success in the reasonably foreseeable future.
...
[14] The [applicant] for leave does not have to prove that the children should be returned forthwith. What must be established however, is that there is sufficient evidence to warrant holding a hearing and of having any agency plans, put on hold; some reasonable prospect of success. The parent's rights and her evidence are to be weighed against whatever negative consequences there might be from holding a hearing, and the decision, as with all decisions under the Act, is to be made in the best interests of the children.
[The judge who dismissed the leave application], in dismissing Ms. H’s application for leave, did not give a written decision so this Court is unaware of his reasons for dismissing the leave application. However the case law is clear that for a court to grant leave under section 48(6)(c)... of the Act, not only must there be some reasonable prospect of success to justify putting the agency’s plans for the child on hold, but also whether the further delay and uncertainty would compromise what is in the child’s best interests. The Court can only conclude that Ms. H’s application for leave was dismissed because the Court hearing the matter could not find as above.
[6] She found that the best interests of the child had to be taken into account when interpreting s.48(6)(c)(ii) of the Act relying on King v. Low, (1985), 44 RFL (2d) 113 at page 126, (also [1985] 1 S.C.R. 87 and [1985] S.C.J. No. 7):
I would therefore hold that in the case at bar the dominant consideration to which all other considerations must remain subordinate must be the welfare of the child.
[7] She concluded:
In this case, the child’s best interests must be weighed taking into account the delay and uncertainty in [the child’s] life as the result of this matter having been before the Court since the initial date of apprehension, the Order at the 5-day stage having been rendered the 27 November 2006.
[8] She examined the history of the child’s care in the case before her noting that the child was placed with family members when the child was eighteen months old, had continued to live with them since and that they wished to adopt the child. She noted that the permanent care order did not provide access to the appellant. She recognized that the delay in having the child’s future settled resulted from the court process prescribed by the Act and from the steps the appellant had taken since the permanent care order was granted and concluded:
...Whether or not [the child] has been with family members during this time, whether or not those family members intend to adopt [the child], makes no difference in the delay. The child has a right to and is entitled to as much emotional and physical security as is humanly possible for [the child] to have. A child’s emotional security at such a young age is imbued through the emotional security of [the child’s] family. This child needs a family and [the child] needs the security - emotional and physical - having a family should bring. That is clearly in the child’s best interests, and for this reason, the Court finds the delay has been excessive and has not been in the child’s best interests.
[9] The judge referred to the preferred modern principle of statutory interpretation set out by Elmer Driedger in Construction of Statutes (2nd ed. 1983) and subsequently approved by the Supreme Court of Canada in Re Rizzo and Rizzo Shoes Ltd., [1998] SCJ No. 2 and Bell Express Vu Limited Partnership v. Rex, 2002 SCC 42:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intent of Parliament.
[10] Taking the factors enunciated by this approach into account, the judge concluded:
Counsel for Ms. H. made an interesting and eloquent argument on behalf of her client and the Court spent considerable time pondering the merits of it. At first blush, the sections of the Act could be read as singular entities. However, when one reads the Children and Family Services Act, supra., in its entirety, and specifically for the purposes of this case, section 48, the Court can only conclude it is unlikely that the legislators intended that a party could make an application..., for leave, and if denied make another one immediately thereafter for termination [without leave]. To do so would allow the Court process to become an open wound and there would be no sense of healing for the child. Further, it would effectively forestall an adoption placement. Leave, therefore, cannot be viewed as an obscure and separate entity, but rather as a first step in the process. Section 48(6)(c)..., and [s.48(3)], allow a party a choice, but must be read in harmony with the other and not as an “If I can’t get this, I’ll get that” type of scenario. Once the application for leave has been dismissed, the Applicant Party is then obligated to wait pursuant to the terms of the Act, in this case:
(ii) six months after the date of the dismissal or discontinuance of a previous application by a party, other than the agency, to terminate an order for permanent care and custody.
...
The dismissal of an application for leave precludes a further immediate application for termination of an order for permanent care. Although the two applications are not identical, for all practical purposes their impact on the process and on the child is the same. The Act should be read in a manner consistent with its clear objectives so as to not allow a child’s stability to be compromised because of an apparent “loophole” in the legislation. Subsequent to a dismissal of a leave application, the Applicant in an application to terminate must adhere to the time limitations as set out in section 48 of the Children and Family Services Act.
[11] The issue before the judge, and now before this court, is whether s.48(6)(c)(ii) of the Act prevents an application to terminate a permanent care order being made without leave of the court until the expiry of six months after an order dismissing an application for leave to terminate such an order.
[12] The issue is the proper interpretation of a statute, a question of law. The standard of review is correctness.
[13] The appellant argued the judge erred by interpreting the statute in light of the facts of this case, rather than generally, and by ignoring the plain meaning of the words of s.48(6)(c)(ii) which refers only to an application to terminate and not to an application for leave to terminate.
[14] For the reasons given by the judge, I am satisfied she did not err in her interpretation of the Act. Interpreting an application for leave to terminate as an integral part of an application to terminate as the judge did is in a child’s best interests which is the paramount purpose of the Act, s.2. The judge’s interpretation also takes into consideration the child’s sense of time and the impact of delay on the child, two aspects emphasized in the preamble to the Act and in the statutory definition of best interests. Such an interpretation also takes into account the need for harmonization throughout the Act. As the respondent pointed out, without such an interpretation (1) the purpose of the six month window provided in the Act where leave is required, to allow placements for adoption to be accomplished, would be defeated and (2) the respondent would be able to place a child for adoption even if there were a leave application before the court because of the provisions of s.76(3) of the Act.
[15] The respondent explained this last point in her factum:
98. The second consequence of the Appellant's interpretation is it will effectively reverse the legislative change made in 1991, in which the discretion of the Minister was replaced by leave of the Court, in considering whether or not an application to terminate should be heard during the six‑month window.
99. The Minister of Community Services agrees with the Appellant that this was the only substantive change made to the termination provisions, when this Act came into force in 1991.... Insisting an Application for Leave is wholly distinct from an Application to Terminate means there will be nothing to prevent the Minister placing a child for adoption, while a leave application is pending.
100. Understanding this consequence requires an analysis of the relationship between the termination and adoption provisions of the Act, an analysis the Appellant fails to undertake in her Factum. The Minister of Community Services summarizes this consequence as follows:
· No application to terminate a permanent care and custody order may be made following the commencement of an adoption application, unless that adoption application has been dismissed, discontinued or unduly delayed (Section 48(4) of the Act)
· An adoption application is commenced by the filing, by the prospective adoptive parents with the Minister, a Notice of Proposed Adoption (Section 67(2)(a) of the Act)
· Only the consent of the Minister or agency is required to place for adoption a child under twelve, in permanent care and custody of the Minister or an agency (Section 74(8) of the Act)
· A child must normally reside with a family for six months prior to the hearing of an adoption application, and the Minister must normally receive one month's notice of the hearing; however, the Minister may, at his or her sole discretion, dispense with both the period of residence and the notice period (Section 76(2) of the Act)
· Crucially, Section 76(3) of the Act only limits the discretion of the Minister as follows:
76 (3) In the case of a child who is a child in permanent care and custody, the notice of the proposed adoption shall not be given until any appeal from an order for permanent care and custody of the child or from a decision granting or refusing an application to terminate an order for permanent care and custody is heard and finally determined or until the time for taking an appeal has expired.
...
103. Under the Appellant's analysis, a Leave Application "is a separate, preliminary step", ... "unlike ...an application to terminate an order for permanent care and custody"..., and "a distinct and separate application"....
104. The consequence of the Appellant's interpretation is that only an Appeal of the Order for Permanent Care and Custody, or the filing of an Application to Terminate such an Order after having obtained leave, can prevent the Minister from filing a Notice of Proposed Adoption during the six months following an Order for Permanent Care and Custody.
105. If the two "applications" are distinct and separate, as submitted by the Appellant, a Leave Application is also not captured by the language of Section 76(3) of the Act. Consequently, a Notice of Proposed Adoption may be filed while a Leave Application is pending before the Family Court.
106. In short, the mere filing of a Leave Application cannot prevent an adoption, but the mere filing of a Notice of Proposed Adoption can prevent a hearing of the application on its merits (Section 48(4) of the Act). To use the Appellant's submission, but now with reference to Section 76(3) of the Act, "if this subsection was meant to include applications for leave, it would be expressly included in this subsection as a leave application is a separate and distinct application." If there is only a Leave Application, adoption may proceed without regard to the matter before the Family Court.
107. This would nullify entirely the significance of the leave application, unfettering the Minister's hands to [commence in] its sole discretion, an adoption application to commence and proceed on an expedited basis through the Supreme Court. This would reverse the effect of the amendment made in 1991, reinstating the Minister's discretion and allowing him or her to ignore the ruling of a Family Court Judge on a leave application.
108. The Minister of Community Services submits that the Appellant's interpretation leads to an absurdity, one which defeats entirely the purpose of the 1991 amendment posited by the Appellant. Such an interpretation returns to the sole discretion of the Minister, the power to effectively allow or prevent an application to terminate within the first six months after a permanent care order, by simply opposing the leave application and expediting the adoption. This is not a result intended by the Legislature in creating a judicial leave requirement.
109. A more appropriate interpretation is that adopted by the Trial Judge. A Leave Application is a first and necessary step in an Application to Terminate, and forms an inextricable part of the latter application. If a Leave Application is before the Court, a Notice of Proposed Adoption may not be filed. Section 76(3) of the Act must be interpreted to prohibit the filing of a Notice of Proposed Adoption while even the "first step" of an Application to Terminate is before the Court; otherwise, the adoption may proceed without regard to the process being pursued in Family Court.
[emphasis in original]
[16] I agree.
[17] Accordingly, I would dismiss the appeal without costs.
Hamilton, J.A.
Concurring:
Roscoe, J.A.
Fichaud, J.A.