SFHC 13237 IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: MCS v. B. M. 2004 NSSF 01 BETWEEN: MINISTER OF COMMUNITY SERVICES J.B. J.M. -RESPONDENTS Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on May 7, 2008. HEARD: At Halifax, Nova Scotia before The Honourable Justice Douglas C. Campbell on the 10th day of December, 2003. DECISION: December 10, 2003 (orally) COUNSEL: JAMES LEIPER, COUNSEL FOR THE MINISTER WILLIAM LEAHEY, COUNSEL FOR J.B. J.M., SELF-REPRESENTED CAMPBELL, J.,(orally): I have before me a motion in this case under the Children and Family Services Act, S.N.S. 1990. c.5 (which I will hereinafter refer to as the "Act") by which the mother asks for a dismissal of this matter on the basis that I have lost my jurisdiction to hear the case because the trial date is after the outside disposition date provided in the Act. Because the trial is scheduled to start tomorrow, have had no opportunity to reserve, other than for few hours. would have preferred to have expanded on my reasons. This case involves child protection proceeding in respect of child who was under the age of six when taken into care. There was delay in the proceeding for number of reasons. The primary child protection concerns that were being advanced and alleged by the agency were such that the original agency planning for the reunification of the mother and child required some psychological counselling for the mother and child. She made number of changes in the counselling providers over period of time and so initially great deal of time was lost in proceeding at least from the point of view of the agency's plan. Over time, reunification seemed probable; but that changed in the mind of the agency. By the time the agency began to formulate plan that called for permanent care with the agency, the matter was very near the outside deadline. In any event, there was good reason for the matter to be extended for trial beyond the date of the overall deadline which reasons were based on the best interests of the child. made decision on August 15th therefore to extend the time line for the trial in respect of the permanent care application to tomorrow's date. In doing so relied on the case of Children's Aid Society Family Services of Colchester County v. H.W., found at 1996, 155 N.S.R. 2d, 335 which Court of Appeal decision will hereinafter refer to as H.W. The Court of Appeal issued a decision, subsequent to my ruling, in October 2003 referred to as Nova Scotia (Minister of Community Service) v. B.F. at 2003 NSCA 119 (CanLII), 2003 N.S.J. 405 which I will hereinafter refer to as B.F. This morning, as mentioned, counsel for the mother made a motion that based on the rule in B.F. I had lost my jurisdiction and must dismiss the matter. Discussion was had as to whether there would be consent to the Minister's intention (assuming were to grant the motion) of an immediate reapprehension and consolidation of the various initial proceedings from interim hearing through protection finding and then to disposition in order to preserve the existing trial dates. Consent would not be forthcoming. In the H.W. decision the proceeding had been approaching the first disposition deadline under section 41(1) of the Act and the trial court extended the deadline so as to conduct the disposition hearing after that statutory deadline had passed. This was done after ruling that it was in the best interests of the child to do so. The Court of Appeal upheld that ruling and confirmed that the trial judge had not lost jurisdiction despite the fact that the Act uses the mandatory word "shall" in section 41(1). By contrast, in the B.F. case the trial court conducted and completed the trial within days of the overall statutory deadline and instead of following one of the only two options available under section 42(1) of the Act, [that is, termination order under 42(1)(a) or permanent care under 42(1)(f)], the Court granted further supervision order for period of six months with further extensive services to be in place. In H.W. the word “shall” was held to be directory thereby permitting the time line extension but in B.F. the word “shall” was held not to be directory thereby leaving no possibility of extending the time line resulting in loss of the Court's jurisdiction. In B.F. the Court of Appeal recognized the validity of its own decision in H.W. notwithstanding the opposite outcome in it. An analysis of how this can be so will determine the motion before me. If the case before me is on “all fours” with H.W., must continue; if it fits with B.F., must dismiss. Counsel for the mother distinguishes the two cases on the basis that H.W. involved the approval of the extension of the statutory deadline at stage that fell within the overall outside date that arrives after all the statutory stages are complete. B.F. he suggests stands for the proposition that the extension of the final deadline in the Act can never be done. Counsel for the agency sees different distinction. He suggests that H.W. allows the extension of deadline in order to conduct trial that will determine based on the best interests of the children, which of the dispositions available to the Court should be applied. B.F. on the other hand merely disallows the making of an order after the trial wherein that best interest has been determined if that order would operate beyond any given statutory deadline. propose reviewing the decision of the Court of Appeal in the B.F. case to determine which, if either, method of distinction appears to have been intended. Before doing so, will digress to speak about some of the policy issues that may assist in understanding the decision in B.F. Subsections (1) and (2) of the Act indicate that the purpose of the Act is to protect children from harm, promote the integrity of the family and ensure the best interests of the children. Subsection mandates that in all proceedings in matters pursuant to the Act the paramount consideration is the best interests of the child. It is normally possible to fully complete proceeding under the Act within the time lines that are set out. This Court has fundamental policy of following those guidelines whenever it is possible and of taking whatever exceptional steps are needed to achieve that compliance. It is only in the rarest of situations that the Court entertains an extension and then only when the best interests of the child demands. There can be many situations where the overall deadline is approaching at the time it becomes clear to the agency or to the Court in due course, that plan (such as reunification) once thought to be impossible is possible (or vice versa) but only with the use of an additional amount of time that would not prejudice the child's interest but would nonetheless go beyond the deadline. Without the power to extend deadlines, the court would be faced with the dilemma of either taking the drastic step of permanent care thereby separating the child permanently from his or her natural parents or returning the child at time when the child welfare issues had not fully and safely resolved. In some cases, neither course would be justified. If time line extensions can never be given in those rare cases, the Court has only one remedy and it is very rough one, not always the best one. That remedy would be terminate the proceeding because of the deadline, hoping that the agency would reapprehend in order to offer the needed protection and pursue the primary and ultimate goal of reuniting the child with the parents. That remedy is rough one for at least two reasons. First, the Court cannot order the agency to reapprehend. Although the protection concerns may have been insufficient to justify an order for permanent care, they nonetheless may require intervention by the agency. Nonetheless, the Court can do no more than recommend reapprehension. Second, and more important, reapprehension will expose the child to the very delay the deadlines are designed to avoid since each of the stages set out in the Act (interim hearing, protection finding and at least one disposition hearing) will have to run their course, in the absence of consent to consolidation under Section 40(2) of the Act. When the plan of care changes from reunification to permanent care close to the particular deadline, it is not in a child’s best interest for a rushed trial date. There may be need for the preparation of expert reports and other trial preparation and to ascertain whether ongoing further services would have resolved the problem. The child’s best interests demands an opportunity for these events to occur unless the delay is of greater detriment to the child’s interest. While section 42(4) of the Act requires that permanent care order shall not be made unless the Court is satisfied that the circumstances justifying the order “are unlikely to change within reasonably foreseeable time not exceeding the maximum time limits”, it does not follow that when the circumstances are likely to change so as to allow the return of the child to the parent within reasonably foreseeable time that the Court must deny the child that opportunity because extension of time is required. Implicit in the fact that the various statutory guidelines were provided in the Act is the legislature’s intended desire to balance the need for swift resolution resulting either in reunification of the child and the parents or some other form of permanent care planning against the need to allow enough time for the child welfare issues to be resolved through services. system which insisted on very short deadlines might permanently separate child from parents inappropriately. On the other hand, an indefinite and/or lengthy time frame could become the child welfare issue in and of itself as the child bonds with temporary care givers. Given the philosophy of the Act which is based on the best interests of the child and given the fact that deadlines can ultimately be overcome by termination of the proceeding and reapprehension by the agency and given that there will be rare and exceptional circumstances where time extension is preferable to reapprehension, the legislature must not be taken to have intended that there can never be an extension of the overall deadline given by the Act (or any other deadline in the Act, for that matter). In my opinion, the fact of opposite outcomes reached by the Court of Appeal in H.W. and B.F. respectively confirms the recognition by the Court of Appeal of that interpretation of the legislature’s intention; otherwise, it would have overruled its decision in H.W. or else expressly stated that extensions are permissible for deadlines within the proceeding but not with respect to the final overall deadline. Turning to the B.F. decision, will refer to paragraph numbers because do not yet have copy of this recent decision that would give me page numbers from any of the reporting services. Paragraph 55 of Justice Fichaud's decisions says: "In H.W. the time limit preceded the disposition order. If as argued to the Court in H.W. the Family Court lost jurisdiction after the passage of the time limit there would be no decision to determine the best interests of the child. The agency might have to reapprehend to start the time limits anew." Now emphasize from that passage the words, “the time limit preceded the disposition order” In that case, it happened to be the first disposition order. It is to be noted that the Court, in that passage, is approving of the notion that the time limit can be extended in order to conduct the trial. In paragraph 56 the Court states and quote: "In J.M.M.[Family Children's Services of Annapolis County v. J.M.M. L.M. 1997 161 N.S.R. 2d 63 of the Court of Appeal] as fair determination of the issues on the interim required the taking of evidence beyond the five day limit, it was consistent with the rule of law and the best interests of the child that the five day limit be treated as directory. The Family Court did not lose jurisdiction after the five days passed." Again the Court of Appeal is approving the notion that time limits can be extended in order to conduct the trial, in this case at the interim stage. Paragraph 57 states and quote: "The Act clearly contemplates judicial determination of the child's best interests. If passage of time limit which is milestone toward the trial caused the Court to lose jurisdiction to determine the child's best interest this would contradict the object of the Act." From that passage, the Court of Appeal is again underlining that as the trial date approached, time limits need to be extended in order to meet the object of the Act when the best interest requires it and when the proceeding is moving toward hearing which is designed to decide the overall best interests of the child and therefore the type of disposition order that should best protect the child's interests. The theme from all three passages is the same. Paragraph 58 the Court of Appeal states, referring to the above principle in those cases, and quote: "This principle does not apply to time limit which governs the contents of the order after the trial." interpret the Court to be making it very clear in that passage, that it is impossible to make an order after the trial if that order would operate beyond the time limits of the statute. If Court attempts to make an order after trial that operates beyond any statutory time deadline, an error of law is thereby made and jurisdiction is lost. In paragraph 66 the Court states and quote: "From these passages it is clear that the maximum time periods to be written in disposition orders are not directory items. They are important components of the scheme and object of the Act and the intention of the legislature as discussed in L.L.P." careful reading of that passage requires the emphasis to be placed on the words, "to be written in disposition orders". Again, the Court is confirming that when time limits are passed in orders that follow the trial they are not directory and they offend the legislation and represent an error of law. This is so only when extensions are included in an order that follows the trial. At paragraph 68 the Court says and quote: "By issuing continued supervision order which bypassed the time limit under section 43(4) the Family Court committed an error of law." Again the Court is emphasizing that it is the issuing of an order after trial that offends the concept of extending time limits. In summary, the H.W. case stands for the following principle: when the best interests of the child requires it, an extension of a deadline to make a determination at the then stage of the proceeding by trial or otherwise is acceptable and no loss of jurisdiction occurs. In my opinion, the B.F. case stands for the following proposition: once the determination at a particular stage of the proceeding is made at trial or otherwise, and with the exception of reserving the Court’s decision, no order can have effect beyond the statutory deadline. When that occurs at the overall deadline, the only options are dismissal and permanent care, as stated in Section 42 of the Act. In the H.W. case, the trial court, based on the best interests of the children, extended the statutory deadline for the first disposition hearing and then conducted the trial which gave one of the dispositions authorized by Section 42 of the Act which disposition was to be reviewed within the statutory deadlines. Jurisdiction was not lost. In the B.F. case, the trial court conducted the trial prior to the statutory overall deadline and, with 13 days left within which to implement its jurisdiction, made disposition order purporting to last months. The trial court could have made such an order for the 13 days remaining; but because the order was to last beyond that 13th day, it acted without jurisdiction. To reconcile the H.W. decision with the B.F. decision on the basis argued above by counsel for the mother would be to ignore the distinction relied upon by the Court of Appeal. In the present case, granted the time extension to the trial date. The trial has not yet been conducted. The best interests of the child has not yet been determined. The appropriate disposition has not been determined and after the trial, will have only two options under this statute and they are to terminate the proceedings or to make permanent care order. Any attempt after the trial to make continued intervention order of any type would not be possible in my view. In conclusion, the Court has not lost its jurisdiction in this matter and the trial will commence tomorrow. Campbell, J.
The mother moved for the dismissal of the pending permanent care trial, arguing that, applying the reasoning in a recent Court of Appeal decision, the court had lost jurisdiction. No trial had been held on any issue as all matters had proceeded to this point with the consent of the parties. The time for trial had been extended to allow the mother to retain counsel. Application dismissed; the court had not lost jurisdiction; trial to proceed. The Court of Appeal decision stands for the proposition that, once a trial at any stage of the Act is held, no order can have effect beyond the next statutory deadline; however, this is so only when the extensions are included in an order which follows trial. When the best interests of the child require it, an extension of a statutory deadline can be made in order to have a trial completed in respect of any stage of the Act. When the plan of care changes from reunification to permanent care close to the particular deadline, it is not in a child's best interest for the court to order a rushed trial date.