Court of Appeal

Judge:

The Honourable Justice Beveridge

Appeal Heard:

February 5, 2014, in Halifax, Nova Scotia

Subject:

Family Law - Child Protection – Review Hearing - Children and Family Services Act, S.N.S. 1990, c. 5

Summary:

A Supervision Order required the mother and father not to have contact with each other in the presence of the children, due to risk of harm.  Prior to a scheduled review hearing, contact occurred.  As permitted by the terms of the Supervision Order, the Minister took the children into care and immediately applied to vary the Supervision Order.  At the hearing, the appellant agreed that the applicable test was similar to a five-day stage hearing.  He argued that the test had not been met.  The other respondents to the application conceded it had been met.  The judge granted the requested variation.  The appellant claimed the judge used the wrong legal test.

Issues:

Did the judge apply the wrong legal test on the application to vary the Supervision Order?

Result:

Appeal was dismissed at the conclusion of the hearing.  While there are differences between a five-day hearing under s. 39 and a review or variation application permitted by s. 46 of the Act, there are, as the judge commented, similarities.  A judge must still be satisfied that the children are in need of protective services and that the proposed plan is in furtherance of their best interests, and are the least intrusive.  Although the judge did not specifically refer to the directive of least intrusive alternatives, she was well aware of this requirement.  The parties had already consented that it was in the children’s best interests that the parents not be in each other’s company in the presence of the children.  The parents violated that order.  No other alternatives that protected the children from risk of harm, and were in their best interests were suggested to the judge, or on appeal.  The appeal was without merit from a legal or practical point of view.