Court of Appeal

Judge:

The Honourable Justice David P.S. Farrar

Appeal Heard:

October 8, 2014, in Halifax, Nova Scotia

Subject:

Children and Family Services Act, S.N.S. 1990, c. 5, ss. 48(3),(8) and (10). Change in Circumstances Warranting Termination of a Permanent Care Order. Bias on the Part of the Motions Judge.

Summary:

The appellants’ twin daughters were the subject of a permanent care order.  The appellants made an application pursuant to s. 48(3) of the CFSA to terminate the order on the basis that there had been a change in circumstances justifying setting aside the order.  The Minister then made a motion for summary judgment to dispose of the appellants’ application.

At the hearing of the summary judgment motion the appellants argued that the judge was biased and should not hear the motion. 

The motions judge refused to recuse herself.  She went on to find that there had not been a change in circumstances which would warrant setting aside the permanent care order.  The motions judge granted summary judgment to the Minister and dismissed the appellants’ application to terminate the permanent care order.

The appellants appeal alleging that the motions judge erred in failing to find a change in circumstances which warranted setting aside the permanent care order.  They also argue the motions judge was biased and ought not to have heard the application.

Issues:

(1)        Did the motions judge err in dismissing the application to terminate the permanent care order?

(2)        Was there a reasonable apprehension of bias that required the motions judge to recuse herself?

Result:

Appeal dismissed.  The motions judge correctly stated and applied the test with respect to change in circumstances.  She found there was no change in circumstances that warranted setting aside the permanent care order.  In doing so she did not commit any error. 

The appellants’ allegation of bias was without merit.  The motions judge had previously presided over a pretrial which involved one of the appellants.  The fact that she had done so did not give rise to a reasonable apprehension of bias.