IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Nova Scotia (Community Services) v. D.M.,
2022 NSSC 237
Date: 20220816
Docket: SFSNCFSA 119558
Registry: Sydney
Between:
Minister of Community Services
Applicant
and
D.M., J.M., J.P. and K.R.
Respondent(s)
Judge: Associate Chief Justice Lawrence I. O’Neil
Heard: June 21, July 12 and July 19, 2022, in Sydney, Nova Scotia
Publication restriction: this decision contains information extracted from a file for which there is a restriction on publication as provided by s. 94(1) of The Children and Family Services Act, S.N.S. 1990, c. 5.
“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.”
The Court also relies on its common law power to prohibit the publication of information that has the effect of identifying the subject child.
Counsel: Jessie MacDonald for the Minister
Alan Stanwick, Counsel for D.M.
Courtney Somerton, Counsel for J.P.
Danielle MacSween, Counsel for K.R.
By the Court:
Index
• Issue, para. 1
• Introduction, para. 5
• Legislative Timelines of the CFSA, para. 17
• Meeting Timelines – The Challenge, para. 27
• The Case before the Court, para. 37
• Extension of Timelines, para. 44
• Current Circumstances – August 2022, para. 63
• Consolidation of Proceedings, para. 69
• Extension of the Timeline, para. 70
• Parens Patriae – Bridging Order, para. 74
• Position of Parties: Termination of CFSA Proceeding, para. 83
• Conclusion, para. 86
- Rule 59A.03, para. 97
- Rule 59.40(3), para. 103
• Attachment A, B, & C
Issue
[1] The Children and Family Services Act, S.N.S. 1990, c 5 will also be referred to herein as the CFSA and the Parenting and Support Act, R.S.N.S. 1989, c. 160 will also be referred to as the PSA.
[2] As a general principle, at the conclusion of the timeline for completing a child protection proceeding the Court has two options. It is to terminate the proceeding or to order permanent care of the child or children.
[3] The statutory timeline for the Minister’s involvement has ended, she wishes to terminate her involvement, absent herself and leave it to the Court to decide which private parenting plan is superior. The issue the Court has to decide is can the Minister terminate her involvement in the absence of a private custody and access order?
[4] The Court must first decide if it may extend the timeline for completing this child protection proceeding. If not, may it put a private ‘bridging’ parenting order in place coincidental with termination of the CFSA proceeding and pending a final ‘Private’ PSA hearing that will occur without the participation of the Minister?
Introduction
[5] Initially this child protection proceeding involved three children who have the same mother, but different fathers.
[6] Typically, with the initiation of a child protection proceeding, private family litigation pertaining to the care of the children is stayed. As a consequence, the processing of any PSA applications pertaining to the same children are held in abeyance (Family and Children’s Services of Annapolis County v. J.D., 2004 NSCA 15).
[7] The statutory time period allocated to complete this proceeding as required by the CFSA is now past. The so-called outside date for completing this proceeding was March 10, 2022. The subject child protection proceeding commenced in September 2020.
[8] Given the scheduling challenges attributable to the availability of all parties and the Court and given the need to conduct a multi-day child protection hearing, this matter was identified for case management. Through case management the Court and parties sought to identify ways this proceeding could be concluded in a time frame more proximate to the statutory timelines for completing it, this being presumptively in the best interests of the subject children. The Court was also acting consistent with directions and stated objectives as outlined in various rules of this Court which require the Court to achieve a ‘just, speedy and inexpensive determination of every proceeding’ (Rule 1).
[9] As a result of the March 22, 2022 case management discussion, the matter was to proceed to a final hearing commencing April 12, 2022. The hearing did not begin. It was to continue April 26 and last several days but did not because counsel for one of the parties was ill. New trial dates were set for June, but these days had to be released because another counsel became unavailable. Faced with the potential need to schedule the hearing in the Fall of 2022, the matter was returned to case management. I once again met the parties on June 21, July 13 and July 19, 2022.
[10] At the June 21, 2022 case management appearance, I advised the parties the Court was considering not extending the child protection proceeding. I referenced various legal principles that were influencing the Court to consider this option. Counsel were asked to prepare submissions on whether the Court should or could proceed in that fashion, and oral submissions were scheduled for July 4, 2022 but due to illness, rescheduled to July 13, 2022. On July 13, 2022 one counsel was unavailable and after some discussion and further directions from the Court, the matter was put over to July 19, 2022. Further submissions were received to August 2, 2022.
[11] The Minister has been consistent in her position. Prior to reaching the outside date the Minister advised she wished to terminate the child protection proceeding in favour of PSA order(s).
[12] At that time, all parties did not agree on the terms of private parenting order(s) that would be put in place. As a consequence, the Minister’s involvement in the lives of these children and their parents has continued. The Minister would have been satisfied with ‘status quo’ PSA order(s) on the basis that a ‘private’ hearing involving only the other parties would occur later.
[13] The Court has faced this impasse frequently when the Minister wishes to terminate her involvement in a family’s life. Often the Minister is required to lead evidence over multiple days in support of an application to terminate. In essence, the Minister may be placed in the role of an advocate of one or the other parenting plans notwithstanding it is content to have the Court conduct a hearing as to the better private parenting plan and to do so in her absence.
[14] There can be strategic value for a litigant insisting that the Minister’s involvement continue.
[15] The Minister’s continuing involvement can and sometimes does affect the terms of the PSA order parties agree to. One parent may insist on the continuing involvement of the Minister to leverage concessions on parenting to be reflected in a consent PSA order. In that situation, the Minister may also feel required to lead evidence of the parties’ history. This is commonplace.
[16] Similarly, the Minister, even when it is clear she will not be seeking permanent care, regardless of the private parenting options, may chose to remain a party to influence the terms of the consent PSA order the parties are negotiating.
Legislative Timelines of the CFSA
[17] The processing of child protection applications are governed by very strict timelines established by the CFSA and R.60A of this Court. In this respect, CFSA proceedings are unique. They reflect the intrusive nature of the state’s involvement in a family subject to a child protection proceeding and the urgency that must be attached to resolving a child protection proceeding for the benefit of children.
[18] The timelines require that when it is claimed by the Minister that children are in need of protection, the Court must assign priority to assessing the child protection concern with the objective of ensuring a safe and healthy environment for them.
[19] The nature of a child protection proceeding and its focus on risks to the well being of a child means the initial interim five-day hearing proceeds, in almost every case, without parents having had a meaningful opportunity to challenge the allegations made by the Minister, notwithstanding the outcome of the initial hearing may be the Court confirming that a child will be placed or continue in the temporary care of a foster family, for example.
[20] The CFSA provides for short notice of the initial interim hearing and ‘relaxed’ evidentiary scrutiny:
Interim hearing
39 (1) As soon as practicable, but in any event no later than five working days after an application is made to determine whether a child is in need of protective services or a child has been taken into care, whichever is earlier, the agency shall bring the matter before the Court for an interim hearing, on two days’ notice to the parties, but the notice may be waived by the parties or by the Court.
. . . . .
(3) Where the parties cannot agree upon, or the Court is unable to complete an interim hearing respecting, interim orders pursuant to subsection (4), the Court may adjourn the interim hearing and make such interim orders pursuant to subsection (4) as may be necessary pending completion of the hearing and subsection (7) does not apply to the making of an interim order pursuant to this subsection, but the Court shall not adjourn the matter until it has determined whether there are reasonable and probable grounds to believe that the child is in need of protective services.
. . . . .
(11) For the purpose of this Section, the Court may admit and act on evidence that the Court considers credible and trustworthy in the circumstances.
[21] Sections 45 and 45A of the CFSA also impose strict limits on the duration of subsequent Court orders and the time for completing a child protection proceeding:
Duration of orders
45 (1) The duration of a disposition order made pursuant to Section 42 must not exceed three months.
(2) Where the Court has made an order for temporary care and custody, the total period of disposition orders, including any supervision orders, shall not exceed
(a) where the child was under fourteen years of age at the time of the application commencing the proceedings, twelve months; or
(b) where the child was fourteen years or more at the time of the application commencing the proceedings, eighteen months.
(3) Where the parties are referred to conferencing during a proceeding, the maximum cumulative duration of all disposition orders made pursuant to Section 42, as determined pursuant to subsection (2), must be reduced by the amount of time equal to that spent by the parties in conferencing. 2015, c. 37, s. 35.
Multiple proceedings
45A Where
(a) a child has been the subject of more than one proceeding;
(b) the proceeding closest in time to the current proceeding ended no less than five years prior to the commencement of the current proceeding; and
(c) the cumulative duration of all disposition orders made pursuant to clause (d) of subsection (1) of Section 42 with respect to all proceedings exceeds thirty-six months,
(d) the Court shall, in the child’s best interests (d) dismiss the proceeding or (e) order that the child be placed in the permanent care and custody of the agency, in accordance with Section 47.
[22] The other statutory timelines to complete the three stages of a child protection proceeding are consistent in requiring that predetermined timelines be met by the Court. The protection stage must be completed within 90 days of the completion of the interim stage and the first disposition stage must be completed within 90 days of the protection finding.
[23] Finally, subsequent reviews of a disposition order must not exceed three months and temporary care orders must not exceed twelve months for children fourteen years of age or younger or eighteen months where the child is fourteen or older (s.45 CFSA).
[24] Amendments to the CFSA adopted by the legislature in 2015 restricted the amount of time a child may be in temporary care over their lifetime (s. 45A). Periods of time from different proceedings but pertaining to the same child are now cumulative. The result has been, in some cases, a shortening of the maximum time a child may be in temporary care before a matter proceeds to conclusion.
[25] The time a child was in temporary care in a former proceeding can serve to shorten the period the child can be in temporary care in a current proceeding.
[26] Clearly, these provisions are generally without precedent when compared to processes applicable to other types of family proceedings.
Meeting Timelines – The Challenge
[27] One of the underlying objectives of the legislature is to reunite children with their families without the need to have child protection authorities involved in their lives. The timelines flowing from the 2015 amendments to the CFSA make this objective more difficult given the challenge for families accessing Court ordered services. It is not uncommon for families to wait months for services ordered by the Court, if they can be accessed at all.
[28] Setting dates for permanent care hearings which may result in the child’s permanent loss of the legal connection to their family is always difficult from a scheduling perspective. Court time is often already assigned to other families.
[29] To meet the legislative timelines of the CFSA, private family litigation is routinely adjourned. Many children in the families whose litigation is ‘bumped’ also require the Court’s intervention to ensure family conflict is reduced and risks to their well being is minimized.
[30] The Court’s approach to the management of child protection proceedings is being modernized.
[31] Rule 59.38 and Rule 59A adopted by the Supreme Court are designed to explicitly detail management tools for the Court to employ when faced with the challenge of meeting strict legislative timelines. They provide:
59.38 Conference
(1) A Judge or a Court officer may arrange a conference with a Judge under Rule 26A - Conference.
. . . . .
(4) Part 6 - Motions, and in particular Rule 26A - Conference, apply to case management of a proceeding, and the presiding Judge may direct a party or counsel to prepare the record of a case management conference.
(5) A Judge who gives directions under the provisions of Rule 26A - Conference may do any of the following:
(a) appoint a time, date, and place for a settlement conference if all of the parties agree to participate;
(b) set a time, date, and place for a further conference to organize the hearing of the application;
(c) refer the parties to conciliation or mediation;
(d) order a parenting assessment report under Section 32F of the Judicature Act or Section 19 of the Parenting and Support Act;
(e) require a party to present direct evidence by calling a witness rather than presenting an affidavit from the witness;
(f) appoint a time, date, and place for the hearing of the application;
(g) do anything that may aid the disposition of the proceeding.
[32] Rule 59A was adopted by the Supreme Court in response to the Court’s anticipated need to more closely manage hearings and child protection proceedings in particular. It confers broad management power on the Court:
Rule 59A - Judicial Dispute Resolution and Process Management
Scope of Rule 59A
59A.01 This judicial dispute resolution and process management Rule applies to every proceeding in the Supreme Court Family Division including proceedings under Rule 60A, 60B and 61.
Object of Rule 59A
59A.02 The object of this Rule is to:
(a) promote the proportional, just, timely, and cost- effective resolution of disputes;
(b) minimize conflict and promote cooperation between the parties; and
(c) reduce the negative impact that the Court's dispute resolution process(es) may have on the parties and their children.
Dispute Resolution Processes
59A.03(1) A Judge may direct that the issues in dispute are to be resolved at a hearing, a trial, a focused hearing, or other appropriate process.
. . . . .
(4) Any other appropriate dispute resolution process.
(5) A Judge shall direct and instruct the parties with respect to the process and requirements of the chosen dispute resolution process.
59A.05
Judicial Dispute Resolution: Process Management
At every appearance, including a conference under Rule 59.38, a Judge may by direction or order:
. . . . .
(e) provide for an immediate need by making an interim temporary time limited order based upon evidence contained in affidavits and documents filed with the Court with or without cross-examination of a party;
. . . . .
(k) give any direction and make any order that is appropriate to promote the proportional, just, fair, timely, and cost-effective resolution of issues in dispute.
[33] The Court continues to work with the Bar to achieve efficiencies in process.
[34] The Court has mandated page limits on the lengths of affidavits filed with the Court. It had been common practice at some Court sites for the applicant to file lengthy affidavits, many exceeding fifty (50) pages for the initial five-day hearing. At other sites, the same duty was almost always comfortably met with an affidavit of less than 20 pages. Obviously, lengthy affidavits filed at the last moment by an applicant make it impossible for respondents to respond in a meaningful way especially when these affidavits are received at the last moment, perhaps the day before an appearance before a Judge. The effect of filing lengthy, unfocused affidavits late, is that proceedings already subject to strict timelines will be delayed.
[35] Adjournments are made necessary as a consequence.
[36] In addition to imposing page limits the Court has taken the unusual step of imposing costs on the Minister for late filings.
The Case Before the Court
[37] In March 2022 when I first became involved as a case management Judge, the oldest child born May 21, 2009 was living with her maternal grandparents. The child's father J.M. did not oppose the child continuing to live with her maternal grandparents. The child's guardian supported the child remaining with the maternal grandparents and reported that it was the child's preference to continue to live with her maternal grandparents. The Minister supported the child remaining with her maternal grandparents and wished to terminate the child protection proceeding to the extent it pertained to this child. These parties saw the termination of the CFSA proceeding in favour of a PSA order recognizing this status quo as in the child’s best interests.
[38] The child's mother, D.M. however sought to have her primary care of the child confirmed in a revised PSA order.
[39] Between the first case management meeting in March of 2022 and a second meeting on June 21, 2022, the parties did agree on the terms of a PSA order confirming primary care of this child would rest with her maternal grandparents. This child and her father, J.M. are no longer subject to this child protection proceeding.
[40] In March 2022, the second child born November 10, 2011 was living with her father J.P. and the father wanted that arrangement to be formalized pursuant to an order under the PSA. The Minister of Community Services supported the father having joint custody of this child with his own mother, the paternal grandmother (also having the initials J.P.). The Minister supported the child remaining with her father and the paternal grandmother, with the father and his mother having primary care and living in the same home with the child.
[41] The child's mother D.M. sought primary care of the child.
[42] The third child born March 10, 2018 has lived with her father K.R. since November 2019 or thereabouts. The father wished to have his primary care of this child confirmed pursuant to the provisions of a PSA order. The Minister supported the primary care of the child remaining with her father.
[43] In March 2022, the child’s mother D.M. wanted primary care of this child as well.
Extension of Timelines
[44] Although Trial Courts are faced with the need to hold hearings within the statutory timelines of the CFSA, it is not always possible for this to occur.
[45] As stated, the outside date for concluding this proceeding was March 10, 2022.
[46] Whether exceeding statutory timelines of the CFSA results in an error of law depends on the context of the decision and the process which led to the Court’s decision to exceed/extend the timeline.
[47] Justice Cromwell infra at paragraph 62 emphasized the fact specific nature of a Court’s decision to extend the time limits to conclude a hearing. This assessment will determine whether an error of law has occurred when time limits are extended.
[48] Although an exception, as explained in the following, extending the time to conclude a stage of a child protection proceeding can be unavoidable and can be consistent with the principles of the CFSA , including the overriding requirement to manage a proceeding consistent with the best interests of a child.
[49] At any given time, hundreds of child protection files are being processed across the Province and unanticipated developments are commonplace.
[50] Not all CFSA proceedings require contested hearings. Most do not. It is not always clear that a matter will require a contested hearing. Lawyers are frequently satisfied that a matter is proceeding to the next stage on a consent basis, only to learn at the last moment that their instructions have changed and a contested hearing is necessary.
[51] Again, when this occurs proximate to the timeline, a Judge’s docket will be cleared to ensure the Judge is available to preside. Alternatively, another Judge may be freed up to participate in a Judicial settlement conference in an effort to achieve an outcome by consent. Subject to the availability of counsel and witnesses, a matter will proceed prior to the expiry of the timelines.
[52] The CFSA is premised on many assumptions. One is that parents will, in a timely way, be given a meaningful opportunity and support and benefit from assessments so that they can better meet their responsibilities as parents. Ensuring family supports are available is a challenge for social agencies. In reality, months can pass after a child protection proceeding commences before services for parents are available. Although the timelines of the CFSA assume that parents will have an opportunity to address their challenges (even if unsuccessfully) and create an appropriate home life for children, that objective is frequently unavailable within the time frames of the CFSA.
[53] An assessment by the Court of what is in the medium and long-term best interests of a child is often difficult to make when the Court does not have credible evidence of the prospects for improved parenting. The Court is often left to rely upon evidence that may only be a snapshot of the life and capabilities of the parents.
[54] The other scheduling reality for the Courts is that it must also assist many families as they attempt to resolve ‘private’ legal issues such as custody and access involving children and parents for whom domestic violence is a concern and child protection agencies are not yet involved. Many family situations are very complex and very negative for children and parents. Court time must be available for these families and in particular, for the benefit of the children of these families.
[55] Regardless of the cost to other children, in practice, CFSA hearings that must be held within statutory timelines bump private family litigation when time is needed for a CFSA hearing.
[56] Even with this prioritization, CFSA hearings cannot always be scheduled within timelines because lawyers are unavailable when the Court is, or important witnesses may not be available. Lawyers and witnesses may be involved in other child protection proceedings, for example, or divorce proceedings also involving children. Judges may also be scheduled to do another child protection proceeding. These are some of the realities of meeting the timelines of the CFSA.
[57] Nevertheless, extending the time to complete a stage of a child protection proceeding is to be the exception, not commonplace. As referenced earlier, to ensure child protection proceedings are completed within the statutory timelines, changes to the management of the CFSA hearing processes are being implemented on an ongoing basis.
[58] In the following cases involving applications for permanent care, the Court discussed whether the timelines for completing the proceedings should have been extended. I observe that, herein, the Minister wishes to terminate its care.
[59] Justice Saunders writing for the Court in T.B. v. Children’s Aid Society of Halifax and S.M.R., 2001 NSCA 99 directed that the statutory deadlines for dealing with a child protection proceeding should only be rarely extended:
[56] It must also be remembered that the statutory deadline for dealing with this proceeding expired on December 15, 2000 and was extended by the trial Judge for 30 days in order for him to hear submissions from counsel and reflect upon his decision. I do not accept appellant’s counsel’s argument before us that such extensions can be granted as a matter of course to permit (as here) the gathering of information garnered to sustain T. B.’s “plan” to assist. Such extensions should rarely be granted and then only in circumstances where protecting the best interests of the child demand it (see for example the decisions of this Court in Family and Children’s Services of Kings Co. v. H.W. et al. (1996), 1996 CanLII 8714 (NS CA), 155 N.S.R. (2d) 334; Family and Children’s Services of Kings Co. v. H.W.T. (1996), 1996 NSCA 247 (CanLII), 156 N.S.R. (2d) 237).
[57] Justice Campbell recognized this himself when he said that his extending the statutory deadline was a “rare, unusual and unsatisfactory event” prompted only by the urgent need for finding a permanent solution for this unfortunate child. On his own motion he granted a further temporary care and custody order upon terms, to January 15, 2000, so as to preserve jurisdiction and give himself a few weeks over the busy holiday season to carefully consider a great deal of evidence and expert testimony, together with the written submissions of counsel to be filed as directed. In reaching, as he put it, “the extremely unusual conclusion (to) ... extend time”, it is obvious from the record that he kept foremost in his mind his duty to this child’s best interests.
[60] Justice Cromwell writing for the Court of Appeal in Nova Scotia (Community Services) v. The Children’s Aid Society of Cape Breton-Victoria, 2005 NSCA 58 discussed the mandatory nature of timelines in the CFSA and summarized the guiding principles at paragraph 32:
[32] To summarize my conclusions:
1. Surpassing of a time limit in the Act to determine the child’s best interests does not result in the loss of jurisdiction: H.W. and B.F. However, as noted in B.F., this principle does not apply to time limits which govern the contents of the order after that determination is made: B.F. at para. 58.
2. Time limits should not be extended in order to permit a determination to be made of the child’s best interests unless, at the time they are extended, the Judge determines that it is in the best interests of the child to do so: H.W. at para. 41.
3. Such extensions should not be open-ended but rather strictly constrained in accordance with the principles in the Act: H.W. at para. 41.
4. Failure to observe the approach set out in points 2 or 3 above is an error of law, but will not lead automatically to interference with the Judge’s ultimate determination. Intervention will follow only when it is shown, according to the applicable standard of appellate review, that the Judge’s decision to proceed, notwithstanding the expiration of the time limit, was not in the children’s best interests.
5. In this case, the Judge erred by reserving judgment beyond the time limits without, at the time, finding that it was in the children’s best interests to do so and without constraining the time for reaching a decision. However, his decision to proceed was manifestly in the children’s best interests in the circumstances of this case and his decision should not be interfered with on appeal as a result of this error.
[61] Most recently in A.B. v. The Minister of Community Services, 2022 NSCA 24, the Appeal Court offered the following comment on the effect of the expiry of the statutory timelines in the CFSA. The Court did not expand upon the statement.
[62] Paragraph 74 and 75 provide the Court’s conclusion:
[74] The Minister suggests the matter be remitted to the trial Court for reassessment of the facts. Even A.B. requests some “transition” arrangements using s. 46(5)(b) of the Act. That option is not available.
[75] The Court of Appeal can make any order that the trial Court could have made (s. 49(6)(c) of the Act). Unfortunately, in this case the statutory timeline was exhausted and the Judge either had to dismiss the application or grant the Care and Custody Order (Nova Scotia (Community Services) v. V.A.H., 2019 NSCA 72 at ¶5).
Current Circumstances – August 2022
[63] The primary care of the two remaining children continues to be with their fathers, subject to a child protection supervision order.
[64] The Minister proposes that in the case of the older child, primary care would be shared between his father, J.P and J.P.’s mother. This living arrangement has existed for most of this proceeding. J.P.’s mother filed a PSA application and that was recently joined with the PSA application of J.P. However, D.M., the child’s mother, does not support this outcome. She seeks primary care of this child.
[65] The younger child continues in the primary care of his father K.R. and K.R. wants this to continue. K.R. has filed a PSA application asking that this arrangement be confirmed. The Minister supports this outcome. However, D.M., the child’s mother, does not. D.M. seeks primary care of this child.
[66] The only point of disagreement as to the interim living arrangement for the children is as between the mother of the children and all other parties.
[67] D.M. continues to disagree with the issuance of interim without prejudice consent orders consistent in substance with the CFSA parenting arrangement. Notwithstanding the foregoing, she appears prepared to accept a CFSA order to similar effect which would continue until an as yet undetermined time.
[68] As explained, the foregoing impasse caused the Court to ask the parties whether the Court should extend the timeline for completion of the CFSA proceeding or if through the exercise of its parens patriae authority or any other authority the Court could make an interim without prejudice order reflecting in substance the status quo pending the hearing of private custody/parenting applications.
Consolidation of Proceedings
[69] Rule 60A.09 permits the consolidation of CFSA proceedings with private custody and access litigation. Herein, the CFSA and PSA proceedings have not been consolidated.
Consolidation of proceedings
60A.09 The Court may order that a child protection proceeding be consolidated with another proceeding involving custody or access to a child, including a proceeding under the Children and Family Services Act.
Extension of the Timeline
[70] Can this Court extend the outside date for completing this child protection proceeding? If so, should it do so?
[71] When considering whether to extend the time for completing this proceeding, I must first assess whether the best interests of the children require that I do so. To assess the best interests of the children I must consider the factors identified in section 3(2) of the CFSA.
[72] Section 3(2) of the CFSA requires that the following circumstances be considered to determine the best interests of a child:
3(2) Where a person is directed pursuant to this Act, except in respect of a proposed adoption, to make an order or determination in the best interests of a child, the person shall consider those of the following circumstances that are relevant:
(a) the importance for the child’s development of a positive relationship with a parent or guardian and a secure place as a member of a family;
(b) the child’s relationships with relatives;
(c) the importance of continuity in the child’s care and the possible effect on the child of the disruption of that continuity;
(d) the bonding that exists between the child and the child’s parent or guardian;
(e) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs;
(f) the child’s physical, mental and emotional level of development;
[73] Herein should the Court conclude extending the time for completion of the child protection proceeding is not in the children’s best interests, without more, the parenting arrangement for the children would default to the regime established by earlier PSA orders. Not all parties support that option.
Parens Patriae – Bridging Order
[74] Does the Court have inherent authority to, on its own motion, make a private interim without prejudice parenting order, which order would take effect upon termination of the child protection proceeding? Such an order would be designed to bridge the parenting regime until a final PSA hearing. The order could, for example, mirror to the extent it is possible, the child protection order in place in recent months.
[75] The authority for the Court to put such an order in place is not expressly provided in the CFSA. Does the Court have authority within its inherent jurisdiction or parens patriae jurisdiction to impose such an order?
[76] The Judicature Act, R.S.N.S. c.240 s.32A (t) confirms the parens patriae jurisdiction of the Supreme Court of Nova Scotia.
[77] The leading case discussing this doctrine, its origins and its effect is Eve v. Eve [1986] S.C.J. No. 60. At paragraph 72 – 74 the Court stated:
72. In the foregoing discussion, I have attempted to set forth the legal background relevant to the question whether a Court may, or in this case, ought to authorize consent to non‑therapeutic sterilization. Before going on, it may be useful to summarize my views on the parens patriae jurisdiction. From the earliest time, the sovereign, as parens patriae, was vested with the care of the mentally incompetent. This right and duty, as Lord Eldon noted in Wellesley v. Duke of Beaufort, supra at 2 Russ., at p. 20, 38 E.R., at p. 243 is founded on the obvious necessity that the law should place somewhere the care of persons who are not able to take care of themselves. In early England, the parens patriae jurisdiction was confined to mental incompetents, but its rationale is obviously applicable to children and, following the transfer of that jurisdiction to the Lord Chancellor in the seventeenth century, he extended it to children under wardship, and it is in this context that the bulk of the modern cases on the subject arise. The parens patriae jurisdiction was later vested in the provincial superior Courts of this country, and in particular, those of Prince Edward Island.
73. The parens patriae jurisdiction is, as I have said, founded on necessity, namely the need to act for the protection of those who cannot care for themselves. The Courts have frequently stated that it is to be exercised in the "best interest" of the protected person, or again, for his or her "benefit" or "welfare".
74. The situations under which it can be exercised are legion; the jurisdiction cannot be defined in that sense. As Lord MacDermott put it in J. v. C., [1970] A.C. 668, at p. 703, the authorities are not consistent and there are many twists and turns, but they have inexorably "moved towards a broader discretion, under the impact of changing social conditions and the weight of opinion ...." In other words, the categories under which the jurisdiction can be exercised are never closed. Thus, I agree with Latey J. in Re X, supra, at p. 699, that the jurisdiction is of a very broad nature, and that it can be invoked in such matters as custody, protection of property, health problems, religious upbringing and protection against harmful associations. This list, as he notes, is not exhaustive.
[78] In a second case, also originating in Prince Edward Island Reference re Broome v. Prince Edward Island the Supreme Court [2010] S.C.J. No. 11, a description of the Court’s parens patriae jurisdiction is offered:
[49] The parens patriae doctrine means different things in different contexts. Historically, it referred to a broad and virtually undefined authority of the Crown over the property and person of children and the mentally incompetent. These powers of the Crown came to be exercised by the Courts so that it is now recognized that the superior Courts have certain powers to step into the shoes of the parent and make orders in the best interests of the child: E. (Mrs.) v. Eve, 1986 CanLII 36 (SCC), [1986] 2 S.C.R. 388. It has also sometimes been said that the Attorney General’s standing to act in the public interest, such as in pursuing civil claims in public nuisance, is attributable to the Crown’s role as parens patriae: British Columbia v. Canadian Forest Products Ltd., 2004 SCC 38, [2004] 2 S.C.R. 74, at para. 67. Although it is unclear from the appellants’ brief submissions, it seems that they rely on the doctrine in the former sense, that is on the power of courts to make orders in the best interests of a child.
[50] This does not in my view support the existence of a private law duty of care on the part of the Province towards children in the care of third parties. The parens patriae power of the Courts, as I understand it, is conceived of as a protective jurisdiction which confers the power to act. It is commonly exercised by a superior Court on a case‑by-case basis as a matter of judicial discretion; it is not generally thought of as a power of the executive branch of government. While it is sometimes spoken of as a duty on the part of the Crown (as, for example, in King v. Low, 1985 CanLII 59 (SCC), [1985] 1 S.C.R. 87, at p. 94, and Re: B.C. Family Relations Act, 1982 CanLII 155 (SCC), [1982] 1 S.C.R. 62, at p. 107), no authority has been presented for the proposition that the parens patriae doctrine imposes a positive duty to seek out and address cases of potential child abuse.
[79] Most recently, the Supreme Court confirmed this Court’s essential role in child welfare matters and its parens patriae jurisdiction. In B.J.T. v. J.D., 2022 SCC 24, the Court stated:
[63] No general principle prevents a Judge on a best interests of the child analysis from considering the actions of a child protection agency. Such inquiries are not only permissible, they may in some circumstances be required on account of the court’s essential oversight role in child welfare matters and its parens patriae jurisdiction.
[64] The Director has the statutory responsibility to safeguard children and has broad investigative and apprehension powers to act in their best interests. Child protection workers perform an essential public service, under often arduous and challenging circumstances. The decision to place children in state care brings profound, life-altering consequences for children and families. “Few state actions can have a more profound effect on the lives of both parent and child” (New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46, at para. 76).
[65] Section 7 of the Canadian Charter of Rights and Freedoms “requires that this dramatic form of state intervention only take place in accordance with the principles of fundamental justice” (Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48, [2000] 2 S.C.R 519, at para. 15, per Arbour J., dissenting in the result). To ensure that child protection agencies exercise their jurisdiction only when warranted and with due fairness to children and parents, child protection statutes give courts the authority to supervise the exercise of an agency’s power (e.g., the Child Protection Act, ss. 27 and 29). This important role, with its attendant checks and balances, is exercised throughout the proceedings. Hence, even in the assessment of a child’s best interests, an agency’s decision-making process remains the proper subject of inquiry as part of the court’s oversight role. Similarly, the jurisdiction under parens patriae to act in the best interests of a child gives ambit to a superior court to take due notice of an agency’s conduct insofar as it impacts a child’s best interests.
[66] The hearing Judge therefore committed no reviewable error by noting that the Director had over-held W.D. and breached the timeline prescribed under s. 41 of the Child Protection Act. As Matheson J. noted in a separate contempt hearing in this matter, “[w]hen a child is placed in the care and custody of the Director by a court, this care and custody is always under the supervision of the court” (2019 PESC 53, at para. 37 (CanLII)). As Matheson J. found, by July 16, 2019, the Director had exhausted the timelines under s. 41, and lacked the jurisdiction to hold W.D., direct his care, or transfer him to Alberta, without returning to court to seek a further period of apprehension.
[67] While Judges must not lose sight of the child’s best interests, they should also not fear appellate intervention for exercising their supervisory functions by referring to or reviewing a child protection agency’s conduct. Provided the focus remains on the applicable legal principles, it is in everyone’s best interest that the checks and balances established in child welfare legislation are front of mind for all decision makers, including Judges undertaking a best interests analysis.
[80] I had occasion to address the circumstances of a mother who appeared before me as a Respondent after her child was apprehended at birth. The case against the mother was based on an allegation that she could not parent because of her mental health issues (Nova Scotia Community Services v. A.A. and C.D., 2009 NSSC 206).
[81] I relied upon the Court’s inherent jurisdiction to address the issue of her ability to represent herself or instruct counsel given evidence of her mental health placed before the Court. In the end, I decided to appoint an amicus curiae.
[82] In Ocean v. Economical Mutual Insurance Co., 2009 NSCA 81 at paragraph 74 – 75 the Court discussed the limits on the Court’s inherent jurisdiction. At paragraph 75 it said it is a procedural concept:
[74] In a thorough canvass of the authorities on inherent jurisdiction, Professor Charles observes that none of the theories put forward to explain the basis for inherent jurisdiction attempt to determine its limits. Indeed, in this jurisdiction the Courts have generally addressed what is not a proper exercise of the Court’s inherent jurisdiction on a case by case basis (see for example, Bank of Nova Scotia v. Golden Forest Holdings Ltd., 1990 CanLII 2489 (NS CA), [1990] N.S.J. No. 230 (Q.L.) (C.A.) and ABN Amro Bank Canada v. NsC Diesel Power Inc. (1991), 1991 CanLII 2525 (NS CA), 101 N.S.R. (2d) 361 (CA)).
[75] This Court cautioned in Goodwin v. Rodgerson, 2002 NSCA 137, (2002), 210 N.S.R. (2d) 42:
[17] The inherent jurisdiction of the Court has been described as a vague concept and one difficult to pin down. It is a doctrine which has received little by way of analysis, but there is no question it is a power which a superior trial Court enjoys to be used where it is just and equitable to do so. It is a procedural concept and Courts must be cautious in exercising the power which should not to be used to effect changes in substantive law. (Emphasis added)
Position of the Parties: Termination of CFSA Proceeding
[83] The parties were asked to make submissions as to whether the CFSA proceeding should terminate and if so, what order should govern parenting as an alternative. All parties, except D.M., favoured the termination of the CFSA proceeding and the Court making interim PSA orders to bridge the time until final PSA hearings could proceed. D.M. wants the CFSA hearing to continue to a fall hearing with the Minister fully participating with all other parties. Other parties favour interim PSA orders mirroring the CFSA parenting structure.
[84] The parties were invited to provide any additional evidence and alerted to the need for the Court to decide what powers it had to put varied or new PSA order(s) in place on an interim basis. The parties’ attention was drawn to the Court’s potential reliance upon its parens patriae authority, the extent of the inherent jurisdiction of the Court, as well as the authority conferred on the Court by virtue of Rule 1, Rule 59A and Rule 5.
[85] Only D.M. filed additional evidence. This was to be considered by the Court if it decided to terminate the CFSA proceeding. As explained below, I have considered that evidence.
Conclusion
[86] The best interests of these children as determined by reference to section 3(2)(a) - (f) of the CFSA are not served by the continued involvement of the Minister of Community Services in their lives.
[87] Similarly, all but three of the best interests’ factors in s. 3(2)(g)-(j) of the CFSA are neutral with respect to whether this proceeding should continue. Section 3(2)(k)-delay weighs strongly in favour of not extending the time to complete this child protection proceeding.
[88] Delay in disposing of this proceeding is negative for these children. The continuing involvement of the Minister is a diminution of the Charter Rights of children and their parents. The ongoing involvement of child protection authorities limits the authority of the parents and distracts from the family life these children would otherwise be free to have within their respective families. The passage of time is very significant in the life of a child given how quickly they move through their developmental stages and the importance of the early childhood period for a child, particularly when forming the all-important attachments to people around them. The strict timelines in the CFSA are often explained as necessary for this reason.
[89] While the continued involvement of the Minister could have a positive impact on the lives of the children, there are alternatives to the Minister's involvement that would meet the same objectives.
[90] These children are currently judged by the Minister to have a secure place in the care of their respective fathers and have relationships with relatives. The termination of the Minister’s involvement in their lives in favour of the status quo, certainly until a final PSA order is in place would minimize disruption and ensure continuity. Maintaining the status quo is possible without a CFSA order and the status quo can be thoroughly evaluated through a process without the Minister’s involvement.
[91] Permanent care of these children is not sought.
[92] I am satisfied it is not in the best interests of the subject children to extend the timeline for completing the CFSA proceeding.
[93] The CFSA proceeding will therefore terminate and two interim PSA orders will issue.
[94] By letter dated August 2, 2022, I informed counsel of my decision to terminate the CFSA proceeding, and I invited submissions on the terms of the interim orders. I also undertook to release written reasons for terminating the CFSA matter. The reasons are contained herein.
[95] I must explain my authority to confirm an interim parenting arrangement and be prepared to decide what the terms of an interim (bridging) PSA order should be. As stated, the parties were asked to make submissions on both of these points and have done so.
[96] I am not relying upon parens patriae or the Court’s inherent jurisdiction to address the procedural impasse herein because the rules of this Court provide the necessary authority.
- Rule 59A.03
[97] Taking into account the fact the proposed orders are to be (1) interlocutory and interim (2) without prejudice (3) of short duration and (4) would reflect in large measure a status quo that existed on a consent basis for a long period, I am satisfied the parties have been fully heard.
[98] All parties were provided an opportunity to make submissions on the issue of my authority to issue interim PSA orders, on the terms of interim orders and all were invited to offer additional evidence. In my view, this process has met the need to achieve proportionality, to achieve fairness for all parties and it is a process which has as an overriding objective, the determination of the best interests of the subject children.
[99] Rule 1.01 says the object of the Court Rules is to achieve “the just, speedy, and inexpensive determination of every proceeding”. Consistent with this objective, Rule 59.38(3), the case management rule, imposes a duty on the Court to direct that the Court’s processes be flexible, fair and proportionate.
[100] In fashioning this process, the Court has been guided by Rule 59A and 59.40 which empower the Court to fashion a Rule 5 like procedural solution to the impasse facing the parties.
[101] Rule 59A.03 empowers a Judge to direct “that the issues in dispute are to be resolved at a hearing, a trial, a focused hearing, or other appropriate process”. Rule 59A.05(i) provides that a Judge may manage the hearing, trial or dispute resolution process in a wide range of ways including by limiting the volume of evidence, the time allocated to present direct evidence and by limiting cross-examination.
[102] Counsel were aware that should I decide not to extend the timeline for the CFSA proceeding, I would take guidance from Rule 59.40 , Rule 59A and Rule 5 to issue PSA bridging orders. The process I decided upon and followed is analogous to an application in chambers under R.5.02 to 5.06 where cross-examination is not permitted by R.59.40(3)(c).
- Rule 59.40(3)
[103] Rule 59.40(3) provides:
59.40 Hearing
(3) An application in chambers proceeds under Rules 5.02 to 5.06 of Rule 5 - Application, except each of the following apply:
(a) a Judge or a Court officer must appoint a time for the hearing of an application, including any application in chambers, and regardless of the duration of the hearing;
(b) a Judge or Court officer may extend or shorten a deadline in Rule 5.06;
(c) cross-examination is not permitted at a hearing scheduled for less than a half-hour, unless a Judge otherwise orders;
(d) a Judge, or Court officer, may direct the parties to appear for a conference to organize an application that is to be heard in more than a half-hour.
[104] As stated, this CFSA proceeding involved three children initially and multiple PSA proceedings. In April 2022, the parties agreed to the terms of a PSA order governing the oldest child E.M. born May 31, 2009. This child’s residency was confirmed to remain with her grandparents, the family with whom she has been living throughout the child protection proceeding. A PSA order issued in May 2022 and confirmed this arrangement (SFSNMCA 124204 M.M. and R.M. v. D.M. and J.M.).
[105] In June 2022 three outstanding PSA files pertaining to the other two children remained. One file had as parties J.P. the maternal grandmother and the child’s mother D.M. (SFSNPSA 124626 J.P. v. D.M.). The parties agreed to consolidate J.P.’s application with that of her son J.P. (SFSNMCA 083713 J.P. v. D.M.). D.M. is a Respondent in that file. Both applications pertained to the second oldest child, born November 11, 2011. As a result of the consolidation, the maternal grandmother discontinued her stand-alone PSA application.
[106] On August 25, 2021, J.P. filed a variation application and named D.M. as the Respondent. Those pleadings are before the Court.
[107] The other PSA file (SFSNPSA 110645 D.M. v. K.R.) regarding the youngest child born March 10, 2018 names the child’s father K.R. and D.M., the child’s mother, as the parties.
[108] On August 17, 2021, D.M. filed a variation application naming K.R. a Respondent. Those pleadings are before the Court.
[109] I have chosen to adopt/mirror the most recent CFSA order as to the terms of the two interim PSA orders which will now govern the parenting of these two (2) children. Many of the terms of these PSA orders have governed for many months as terms of a CFSA order. For a discussion of the deference to be shown to the status quo, see B.J.T. v. J.D., 2022 SCC 24 at paragraph 73:
[73] In the same vein, the Director’s decisions structured the status quo as it existed at the time of the disposition hearing and the hearing judge was well within her authority to understand how that status quo came about. In many cases the status quo is an important consideration when assessing the best interests of children (see Beson v. Director of Child Welfare (Nfld.), 1982 CanLII 32 (SCC), [1982] 2 S.C.R. 716, at p. 728; K.L.W., at para. 18). However, courts have also recognized that in certain circumstances, it is inappropriate to give effect to an existing state of affairs. For example, return and retention orders restore the status quo that existed before a wrongful removal or retention (Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at para. 24; Thomson v. Thomson, 1994 CanLII 26 (SCC), [1994] 3 S.C.R. 551, at pp. 579-81). While the father pressed the status quo of W.D. living in Alberta before this Court, a status quo created from compounded actions or errors on the part of a child protection agency or others may require scrutiny. A court is entitled to look behind the veil of an existing status quo to understand how it came about and to assess whether that status quo is itself in the child’s best interests.
[110] These children have lived with their fathers since January 2020. For the period January 2020 – September 2020, that living arrangement was pursuant to a voluntary agreement with the Minister of Community Services. With the initiation of a child protection proceeding in September 2020, that arrangement was confirmed by a supervision order of this Court.
[111] All other parties are agreeable to an interim PSA order on these terms. D.M. is not.
[112] The interim PSA orders form part of this decision and are marked as attachment A and B. For ease of reference, I am also attaching the most recent CFSA order issued February 23, 2022 and marked C.
[113] By way of obiter, I observe the challenge of meeting child protection timelines at all Court sites is expected to increase and will require parties and the Court to work closely with one another. I invite process stake holders, including the Courts, to consider the following on an ongoing basis both before and after a CFSA matter commences and ask, which of the following would help achieve a “just, speedy and inexpensive determination of (the) proceeding”:
1. Presumptive consolidation of active PSA applications with CFSA proceedings, Rule 60A.09.
2. When the Minister concludes it will terminate in favour of a PSA order and parties become aware of a potential conflict over the terms of a PSA order, parties should cooperate to have an interim consent without prejudice PSA order in place or file a motion seeking a bridging order as provided by R59.40 (3)(c)).
3. Committing to be available for hearings by clearing calendars for required hearings after having agreed to represent a party on a CFSA matter. This may require timely transfer of another file to new counsel.
4. The Court must assign priority to the scheduling of CFSA hearings.
5. Requiring greater accountability and more timely responses to orders to provide services, including assessments.
6. Separating day one of a CFSA hearing from subsequent days given the number of times CFSA proceedings settle on or immediately before the first day of a hearing, a reality that results in other families losing the Court’s attention.
7. Pursuing early intervention, when this is a reasonable alternative to initiating a CFSA proceeding.
8. Always considering conferencing as an option (section 40A).
9. Closely budget Court time allocated to issues and develop best practices in this regard.
10. Commit to detailed case management meetings when hearings are requested and address the following:
a. Opportunities for agreed statement of facts and joint exhibit books;
b. Eliminating redundant witnesses, e.g., agreeing to tender business records by consent so witnesses are not required to authenticate them;
c. Waiving cross-examination when appropriate, or agreeing to time-limited cross-examinations;
d. Dealing with preliminary objections (e.g. hearsay in affidavits) in advance;
e. Agreeing to hold necessary voir dires in advance;
f. Agreeing to and meeting deadlines for disclosure;
g. Ensuring that parties who contest the Minister’s position/PCC plan, file their own detailed plan/affidavit in advance; and
h. Exchange suggestions on how to streamline the process to achieve a just, speedy and inexpensive determination in new ways.
ACJ
ATTACHMENT A
to the decision of Associate Chief Justice Lawrence I. O’Neil, being
Minister of Community Services v. D.M., J.M., J.P. and K.R., 2022 NSSC 237
J.M.P. and J.P.
And
D.L.M.
Without Prejudice Bridging Order
August 16th, 2022
SFSNMCA 083713
IN THE SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Between:
J.M.P. and J.P.
Applicant
- and –
D.L.M.
Respondent
[Due to the Publication Ban, the original text of the order has been anonymized]
WITHOUT PREJUDICE BRIDGING ORDER
BEFORE THE HONOURABLE ASSOCIATE CHIEF JUSTICE LAWRENCE I. O’NEIL on the 16th day of August, 2022:
WHEREAS the parties J.M.P. and D.L.M. and their child, I.J.M., born November 10th, 2011 were subject to a child protection proceeding identified as SFSNCFSA 119558;
WHEREAS J.P.’s application, SFSNPSA 124626 was, by consent, consolidated with that of her son, J.M.P.;
WHEREAS J.P. is granted standing to apply for custody of her granddaughter, the subject child herein;
WHEREAS the Court ruled the time to complete the child protection proceeding should not be extended beyond August 16th, 2022 or the issuance of this order, whichever first occurs;
WHEREAS the parties disagree on the terms of a ‘private’ parenting order that should govern following termination of the child protection proceeding;
WHEREAS the Court, in a decision reported as Minister of Community Services v. D.M., J.M., J.P. and K.R., 2022 NSSC 237, ruled an interim parenting order should be put in place pending a final hearing to determine a parenting regime for the subject child;
AND after hearing Courtney Somerton, counsel for the Applicant, J.M.P.;
AND after hearing Alan Stanwick, counsel for the Respondent, D.L.M.;
AND after hearing from J.P.;
NOW UPON MOTION:
IT IS ORDERED:
1. The child, I.J.M. shall remain in the care and custody of the Applicant J.M.P. and his mother J.P. who shall have joint interim primary care and decision-making authority with respect to the child I.J.M. born November 10th, 2011.
2. The Respondent, D.L.M. will not have contact with I.J.M. except for parenting time upon terms and conditions as may be agreed to by the Applicant, J.M.P.
3. The terms and conditions of parenting time between the child, I.J.M. and her parents D.L.M. and J.M.P. shall include the following:
a. The Respondent, D.L.M. is to refrain from the use of drugs and alcohol, other than medications prescribed by a doctor and only in the dosages as prescribed by a doctor;
b. The Respondent, D.L.M. will not allow any persons who are under the influence of non-medically prescribed drugs or alcohol, or any persons who are associated with the drug subculture, into her home when caring for the child;
c. The Respondent, D.L.M. will follow all recommendations from her treatment team following her inpatient stay in Mental Health;
d. The Respondent, D.L.M. will follow through with support services, including Addiction Services, Family Place Resource Center and Family Support, if they remain available to her and follow any recommendations;
e. The Applicant, J.M.P. is to retrain from the use of non-medically prescribed drugs and alcohol while in a child caring role;
f. The Applicant, J.M.P. will not allow any persons who are under the influence of non-medically prescribed drugs or alcohol, or any persons who are associated with the drug subculture, into his home when caring for the child;
g. The Respondent, D.L.M. and the Applicant, J.M.P. will consider voluntary ongoing services offered by the Minister of Community Services as determined by the Minister; and
h. The Applicant, J.M.P. shall decide whether the Respondent, D.L.M., should have parenting time with the child and under what conditions, if any, but he shall not unreasonably deny parenting time.
4. The matter will be scheduled for a final hearing to determine the terms of an MCA/PSA hearing at a time determined after consultation with the parties.
5. A Pre-Trial Hearing will take place in September or at an earlier time directed by a Judge. The Court Scheduler will be in further communication to confirm a date.
Enforcement
6. All Sheriffs, deputy sheriffs, constables and peace officers shall do all such acts as necessary to enforce this order and for such purposes they, and each of them, are hereby given full power and authority to enter upon any lands and premises whatsoever to enforce the terms of this order.
GRANTED at Halifax, Nova Scotia, this 16th day of August, 2022.
ISSUED at Halifax, Nova Scotia, this 16th day of August, 2022
___________________________________
Deputy Prothonotary
ATTACHMENT B
to the decision of Associate Chief Justice Lawrence I. O’Neil, being
Minister of Community Services v. D.M., J.M., J.P. and K.R., 2022 NSSC 237
D.L.M.
And
K.M.R.
Without Prejudice Bridging Order
August 16th, 2022
SFSNPSA 110645
IN THE SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Between:
D.L.M.
Applicant
- and –
K.M.R.
Respondent
[Due to the Publication Ban, the original text of the order has been anonymized]
WITHOUT PREJUDICE BRIDGING ORDER
BEFORE THE HONOURABLE ASSOCIATE CHIEF JUSTICE LAWRENCE I. O’NEIL on the 16th day of August, 2022:
WHEREAS the parties herein and their child, N.J.L.M., born March 10th, 2018 were subject to a child protection proceeding identified as SFSNCFSA 119558;
WHEREAS the Court ruled the time to complete the child protection proceeding should not be extended beyond August 16th, 2022 or the issuance of this order, whichever first occurs;
WHEREAS the parties disagree on the terms of a ‘private’ parenting order that should govern following termination of the child protection proceeding;
WHEREAS the Court, in a decision reported as Minister of Community Services v. D.M., J.M., J.P. and K.R., 2022 NSSC 237, ruled an interim parenting order should be put in place pending a final hearing to determine a parenting regime for the subject child;
AND after hearing Alan Stanwick, counsel for the Applicant, D.L.M.;
AND after hearing Danielle MacSween, counsel for the Respondent, K.M.R.;
NOW UPON MOTION:
IT IS ORDERED:
1. The child, N.J.L.M. shall remain in the care and custody of the Respondent, K.M.R. who shall have interim primary care and decision-making authority with respect to the child, N.J.L.M., born March 10th, 2018.
2. The Applicant, D.L.M. will not have contact with N.J.L.M. except for parenting time upon terms and conditions and as may be agreed to by the Respondent, K.M.R..
3. The terms and conditions of parenting time between the child N.J.L.M and the parents, the parties herein, shall include the following:
a. The Applicant, D.L.M. is to refrain from the use of drugs and alcohol, other than medications prescribed by a doctor and only in the dosages as prescribed by a doctor;
b. The Applicant, D.L.M. will not allow any persons who are under the influence of non-medically prescribed drugs or alcohol, or any persons who are associated with the drug subculture, into her home when caring for the child;
c. The Applicant, D.L.M. will follow all recommendations from her treatment team following her inpatient stay in Mental Health;
d. The Applicant, D.L.M. will follow through with support services, including Addiction Services, Family Place Resource Center and Family Support, if they remain available to her and follow any recommendations;
e. The Respondent, K.M.R. is to retrain from the use of non-medically prescribed drugs and alcohol while in a child caring role;
f. The Respondent, K.M.R. will not allow any persons who are under the influence of non-medically prescribed drugs or alcohol, or any persons who are associated with the drug subculture, into his home when caring for the child;
g. The Applicant, D.L.M. and the Respondent, K.M.R. will consider voluntary ongoing services offered by the Minister of Community Services as determined by the Minister; and
h. The Respondent, K.M.R. shall decide whether the Applicant, D.L.M. should have parenting time with the child and under what conditions, if any, but he shall not unreasonably deny parenting time.
4. The matter will be scheduled for a final hearing to determine the terms of an MCA/PSA hearing at a time determined after consultation with the parties.
5. A Pre-Trial Hearing will take place in September 2022 or at an earlier time directed by a Judge. The Court Scheduler will be in further communication.
Enforcement
6. All Sheriffs, deputy sheriffs, constables and peace officers shall do all such acts as necessary to enforce this order and for such purposes they, and each of them, are hereby given full power and authority to enter upon any lands and premises whatsoever to enforce the terms of this order.
GRANTED at Halifax, Nova Scotia, this 16th day of August, 2022.
ISSUED at Halifax, Nova Scotia, this 16th day of August, 2022
___________________________________
Deputy Prothonotary
ATTACHMENT C
to the decision of Associate Chief Justice Lawrence I. O’Neil, being
Minister of Community Services v. D.M., J.M., J.P. and K.R., 2022 NSSC 237
Minister of Community Services
And
D.M., J.M., J.P. and K.R.
Supervision Order
February 23rd, 2022
2020 SFSNCFSA 119558
SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
BETWEEN:
MINISTER OF COMMUNITY SERVICES
APPLICANT
AND
D.M., J.M.,
J.P. and K.R.
RESPONDENTS
[Due to the Publication Ban, the original text of the order has been anonymized]
SUPERVISION ORDER
(February 23, 2022)
BEFORE THE HONOURABLE JUSTICE PAMELA MARCHE VIA TELECONFERENCE:
After hearing Jessica MacDonald, counsel for the Applicant;
And after hearing Alan Stanwick, counsel for the Respondent, D.M., who was present;
And after hearing Rosemary Osasere, counsel for the Respondent, J.M., who was not present;
And after hearing Courtney Somerton, counsel for the Respondent, J.P., who was not present;
And after hearing Danielle MacSween, counsel for the Respondent, K.R., who was present;
And after hearing Lisa Fraser-Hill, counsel for Guardian ad litem, Carol MacLellan, who was not present;
FINDINGS
The persons entitled to notice of this proceeding have been notified;
The children, E.R.T.M., born May 21, 2009, I.M., born November 10, 2011, and N.J.L.M., born March 10, 2018, continue to be in need of protective services under the Children and Family Services Act, clause 22 (2)(b) on February 23, 2022.
After reading the notice of child protection application and all the documents on file, and the unsworn Affidavit of Megan Holloway dated September 24, 2020 and the unsworn Supplemental Affidavit of Megan Holloway dated December 7, 2020 and the unsworn Supplemental Affidavit of Megan Holloway dated January 28, 2021 and the Supplemental Affidavit of Megan Holloway dated May 25, 2021, and the Supplemental Affidavit of Megan Holloway dated August 19, 2021, and the Affidavit of Madelyn Ross dated January 17, 2022, and the Affidavit of Alisha MacDonald dated February 16, 2022, a decision was made on February 23, 2022;
ORDER
It is ordered:
1. The child, E.R.T.M. shall remain in the care and custody of her maternal grandparents, M.R.M. and R.M., subject to the supervision of the Applicant, the Minister of Community Services;
2. The child, I.M., shall remain in the care and custody of the Respondent, J.P., subject to the supervision of the Applicant, the Minister of Community Services;
3. The child, N.J.L.M., shall remain in the care and custody of the Respondent, K.R., subject to the supervision of the Applicant, the Minister of Community Services;
4. The Respondent, D.M., and the Respondent, J.M., shall not reside with or contact the children, E.R.T.M., I.M., and N.J.L.M. except for access upon terms and conditions and as may be arranged by an Agent of the Minister of Community Services;
5. The terms and conditions of the supervision are as follows:
(a) The Respondent, D.M. shall have access to the children, which may be unsupervised, at the discretion of the Applicant, the Minister of Community Services;
(b) The Respondent, D.M., is to refrain from the use of drugs and alcohol, other than medications prescribed by a doctor and only in the dosages as prescribed by a doctor;
(c) The Respondent, D.M., will not allow any persons who are under the influence of non-medically prescribed drugs or alcohol, or any persons who are associated with the drug subculture, into her home or around the children;
(d) The Respondent, D.M., will comply with drug testing, random urinalysis, upon the request of the Minister of Community Services;
(e) The Respondent, D.M., will follow all recommendations from her treatment team, following her inpatient stay in Mental Health;
(f) The Respondent, D.M., will follow through with support services, including Addiction Services, Family Place Resource Center, and Family Support, and follow any recommendations;
(g) The Respondent, J.M., shall have access to the child as determined by the Minister of Community Services, unless otherwise directed by the Minister;
(h) The Respondent, J.M., is to refrain from the use of drugs, other than medications prescribed by a doctor and only in the dosages as prescribed by a doctor;
(i) The Respondent, J.M., will not allow any persons who are under the influence of non-medically prescribed drugs or alcohol, or any persons who are associated with the drug subculture, into his home or around the children;
(j) The Respondent, J.M., will comply with drug testing, random urinalysis, upon request of the Minister of Community Services;
(k) The Respondent, J.M., is to follow through with support services, including Addiction Services, and follow any recommendations;
(l) The Respondent, J.P., is to refrain from the use of non-medically prescribed drugs and alcohol while in a child caring role;
(m) The Respondent, J.P., will not allow any persons who are under the influence of non-medically prescribed drugs or alcohol, or any persons who are associated with the drug subculture, into his home or around the children;
(n) The Respondent, K.R., is to refrain from the use of non-medically prescribed drugs and alcohol while in a child caring role;
(o) The Respondent, K.R., will not allow any persons who are under the influence of non-medically prescribed drugs or alcohol, or any persons who are associated with the drug subculture, into his home or around the children;
(p) M.R.M. and R.M. are to refrain from the use of non-medically prescribed drugs and alcohol while in child caring role, and will not allow any persons who are under the influence of non-medically prescribed drugs or alcohol, or any persons who are associated with the drug subculture, into their home or around the children;
(q) E.R.T.M. and I.M. will attend counselling through Family Services;
(r) The Respondent, D.M., the Respondent, J.M., the Respondent, J.P., and the Respondent, K.R., will be open to ongoing services presented by the Minister of Community Services;
(s) Any representative of the Minister of Community Services shall have the right to enter the residence of the children, E.R.T.M., I.M., and N.J.L.M., to provide guidance and assistance and to ascertain that the children, E.R.T.M., I.M., and N.J.L.M., are being properly cared for;
t) Non-compliance with any of the conditions may result in the children, E.R.T.M., I.M., and N.J.L.M. coming into the care of the Department of Community Services.
6. The Pre-trial Hearing will take place on March 4, 2022 at 11:15 a.m., or at an earlier time directed by a judge.
DATED February 24, 2022
ISSUED , 2022.
COURT OFFICER