NOVA SCOTIA COURT OF APPEAL
Citation: R.K. v. H.S.P. , 2008 NSCA 63
Date: 20080704
Docket: CA 296435
Registry: Halifax
Between:
R.K.
Appellant
v.
H.S.P., L.A.C. and Minister of Community Services and
Family and Children’s Services of Cumberland County
Respondents
Restriction on publication: pursuant to s. 94(1) of the Children and Family Services Act
Judge: The Honourable Justice Thomas Cromwell
Application Heard: June 19, 2008, in Halifax, Nova Scotia, in Chambers
Additional Written
Submissions
by Appellant: July 3, 2008
Held: Application referred to a panel of the Court.
Counsel: Kelly Ryan, Article Clerk, for the appellant
Peter McVey, for the respondent Minister of Community Services
Gordon Kelly, for the respondent, Family and Children’s Services of Cumberland County
respondent, H.S.P., not appearing
respondent, L.A.C., not appearing
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.
Decision:
[1] The applicant has applied in chambers for orders setting the appeal down for hearing and filing dates, for an order under s. 85(2) of the Children and Family Services Act, S.N.S. 1990, c. 5 and Civil Procedure Rule 62.31 allowing a sealed package in relation to the adoption proceedings involving the children, R.R.H. and B.N.H., to be open to inspection by the appellant and the appellant’s solicitor and for an order directing that the full record of proceedings bearing Court No. Fam. C.F.S.H. - 033345 and the full record of the proceeding bearing Court No. CA. 261055 be included in the appeal book.
[2] In brief, the background is this. The appellant is the biological father of the children. He is appealing the order for their adoption by the respondents H.S.P. and L.A.C.
[3] The children were ordered into the permanent care and custody of the Agency with no provision for access by the appellant. The appellant filed an appeal from the permanent care order. However, the appeal was filed late and application for an extension of time was dismissed. As a result, the appeal could not proceed on the merits.
[4] The appellant then filed an application to terminate the permanent care order which was dismissed because the Agency had placed the children in a potential adoptive home. That placement broke down and the appellant filed a second application to terminate the permanent care order. On the advice of counsel, the appellant withdrew his application to terminate.
[5] The children have now been adopted. The appellant, as noted, appeals the adoption orders.
[6] Under s. 83(1) of the Children and Family Services Act a “person aggrieved” by an order for adoption may appeal to this Court. It is common ground that the appellant was not entitled to notice of the adoption proceedings or to participate in them. In my view, there is a serious question as to whether the appellant is a “person aggrieved” within the meaning of s. 83(1). It is, to say the least, difficult to understand why a person who had no right to notice of the adoption proceedings and no right to participate in them would have a right to appeal the adoption order. So far as counsel have been able to determine, the matter is not squarely settled by authority. The result is that whether the appellant has a right of appeal at all is a live issue and one that appears to raise an unsettled and important question of statutory interpretation.
[7] In addition to that threshold problem, I have serious reservations about the authority of a Chambers judge to make an order allowing the sealed package in relation to the adoption proceedings to be opened to inspection by the appellant and the appellant’s solicitor. I have not been referred to any statute, rule or authority supporting the jurisdiction of a Chambers judge of the Court of Appeal to make such an order.
[8] I am advised that counsel for the Minister has been instructed to bring an application to quash the appeal and, of course, that application must be heard by a panel of the Court. Based on the Minister’s oral submissions in Chambers, I assume that the basis of the application to quash will be that the appellant has no right of appeal.
[9] I think it would be inappropriate for me to express an opinion on the question of whether the appellant is “a person aggrieved” in the context of an application to set an appeal down for hearing. As noted, this issue raises an important question of statutory interpretation going to the jurisdiction of the Court and which appears not to have been settled by authority. I also am of the view that the application to unseal the adoption proceedings would be better considered by a panel of the Court. The jurisdiction of a Chambers judge to make the order is doubtful and, of course, once made, the effect of the order cannot in any realistic sense be undone.
[10] Until these issues are resolved, there is no point in dealing with the application to include the record of other court proceedings in the appeal book.
[11] I am of the view that the appellant’s application would be better addressed by a panel of the Court. I therefore refer the appellant’s application to the Court for hearing and disposition as provided for in Rule 62.31(7)(d). The application should be heard at the same time as the Minister’s application to quash the appeal.
Cromwell, J.A.