J. Date: January 10, 2003 Docket: [02D0013] IN THE FAMILY COURT FOR THE PROVINCE OF NOVA SCOTIA [Cite as: Minister of Community Services v. T.K.G., G.H., J.R.L. and S.A.H., 2003 N.S.F.C. 1] IN THE MATTER OF: An Application pursuant to Rule 37.11(2)of the Civil Procedure Rules setting aside the decision of the Honourable Chief Judge John Comeau dated November 12, 2002, placing the child C. (born [in 1993]) in the permanent care of Family and Children’s Services of Digby County; BETWEEN: Minister of Community Services APPLICANT/RESPONDENT and T.K.G., G.H., J.R.L. and S.A.H. RESPONDENTS/APPLICANT Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on November 23, 2008. HEARD BEFORE: The Honourable Judge John D. Comeau, Chief Judge of the Family Court of Nova Scotia DATE HEARD: December 3, 2002 PLACE HEARD: Digby, Nova Scotia DATE OF DECISION: January 10, 2003 COUNSEL: W. Bruce Gillis, Q.C., for the Applicant Andrew Ionson, Esq., for the Respondent, T.K.G. THE APPLICATION: [2] The Applicant is T.K.G., who was one of the Respondents in the original application. She is the mother of the child, C., born [in 1993], and asks the court, pursuant to Civil Procedure Rule 37.11(2), to set aside its decision granting permanent care and custody to Family and Children’s Services by order dated November 12, 2002. [3] In her affidavit the Applicant sets out her understanding of what occurred from the date the child was found in need of protective services (protection hearing), to the order of November 12, 2002 (disposition review hearing). On April 30, 2002, consented to finding that C. was in need of protective services pursuant to section 22(2)(b) and (ja) of the Children and Family Services Act. Under the protection order C. was placed in the temporary care of the Applicant, and was granted access to my son; appeared with my then counsel, Patricia Reardon, for pre-disposition proceeding before the Family Court sitting at Digby in or about the month of October, 2002. At that proceeding, do verily believe date for the Disposition Hearing was scheduled. When left court that day, did verily believe the hearing was scheduled for the Family Court at Digby on November 14, 2002; On November 12, 2002 attempted to contact my counsel by telephone during the morning to discuss with her evidence that would be presenting at the hearing scheduled for November 14. It was my understanding my counsel needed information by November 12, 2002 as she would be meeting with the lawyer for the Applicant to discuss the evidence that would be presented on the 14th; was advised by my counsel’s receptionist that my counsel was at the court house at Digby. As result of my conversation with the receptionist attended at the Digby court house where arrived at approximately 11:00 a.m. there spoke with court clerk whom do verily believe was Cyndi Gennette. was advised that Ms. Reardon was no longer at the court, and that all matters before the court were concluded; was able to reach my counsel later in the day. Ms. Reardon advised me that the disposition hearing had been scheduled for that day. She advised that as had not appeared, she had applied to the court and had been permitted to withdraw as my counsel. Ms. Reardon also said that the court had placed my son C. in the permanent care of the Applicant; As result of my mistake was unable to appear before the court and present evidence of the plan that wished to present to the court regarding the ongoing care of my son, C.. hereby make application under Civil Procedure Rule 37.11(2) requesting that this Honourable Court set aside the decision reached November 12, 2002. [4] Sarah Wallace, social worker for Family and Children’s Services, has filed response in the form of an affidavit. The admissible paragraphs provide an outline of the Minister’s understanding of what resulted in an order for permanent care and custody. THAT on October 8th, 2002, was present in Family Court at Digby, Nova Scotia, for Disposition Review. T.K.G. was present with her counsel, Patricia Reardon, and requested an assessment by Psychiatrist John Curtis. It was agreed that she could pursue such an assessment but any information with respect to the Disposition Review Hearing would have to be before the court for disclosure by November 5th and the matter was set over to November 12th, 2002 in the presence and with the knowledge of T.K.G. and her counsel. THAT on November 7th, 2002, the Respondent T.K.G. met with me and Worker Tracy Saulnier-Terrio at our office in Digby. T.K.G. stated that she was not drinking or doing drugs or any sort and that she felt that foster home was the best place for her son, C., to be at that point and that she needed more months to get her life together. THAT we advised her that the Agency was going ahead with the submitted Plan of Care requesting permanent care and custody and that she could present her side of the story to the judge the following Tuesday, November 12th, in court. THAT after confirming that T.K.G. was no where present in the court house the judge proceeded to decide the matter in her absence and placed C. in the permanent care and custody of the Agency. TRANSCRIPT EVIDENCE: [5] At the court hearing on November 12, 2002, the Applicant was represented by counsel, Patricia Reardon. She advised her client was not in attendance. Ms. Reardon: Well she isn’t visually. I’m sure she knew that today was the day but. [6] The Deputy Sheriff was again asked to check the court premises to see if the Applicant was there and he received no response. [7] The transcript discusses further the absence of the Applicant and the position of Family and Children’s Services. MR. GILLIS: Thank you, Your Honour. have some sympathy for Ms. Reardon’s position because I, as understand it, she’s essentially without much by way of instructions but this was originally set for the 8th of October and at that time an adjournment was requested by the Respondent in order for her to have time to see psychiatrist and to establish attendance at AA. THE COURT: There was list of things in the July 18th order, believe. MR. GILLIS: And number of other things, right. THE COURT: The July 18th order, believe, yeah. MR. GILLIS: Right. Yeah. We needed to find out who her family doctor was and whether there was going to be reference to psychiatrist and so on and so forth. Your Honour adjourned it to today’s date on the understanding, and there was an order issued saying that all reports and affidavits to be presented by her would be filed by the 5th of November together with witness list of who was intended to be here today for the disposition hearing or guess it’s review, not disposition but, there is before you the Agency’s Plan of Care which has been filed since September indicating that we’re looking for permanent care and custody. We have, as of yet, no response to the requirement for what is the Plan of Care from the Respondent, the alternate Plan of Care. My understanding from my friend is that, although she’s got some verbal direction, she has had no instructions. We were looking for such things as even confirmation of her employment, her employment hours, where she’s working, that sort of thing and there’s really nothing here and my friend, as understand it, is here without client to give her instructions. Our proposal would be there would be choice of things to do either proceed to put evidence on the stand. We have Mr. we have report in from Kevin Graham and Kevin Graham is here. He has come down and is available to confirm the contents of his report and answer any questions on it. We have the affidavit of the social worker involved and we have the Plan of Care before you and I’m happy to proceed on those. THE COURT: Ms. Reardon what do you say? MS. REARDON: Well, Mr. Gillis has very adequately summed up this dilemma that have today. have received some oral instructions from T.K.G. and had reason to believe that she does, in fact, have an apartment because spoke to where she was staying and was told that she had that she’s not where she was and that she didn’t have telephone number yet. have reason to believe that she is working because I’ve gotten messages, gotten responses after left messages there. My concern is that she hasn’t, mean among other things, she has not given me letter from her employer yet. understood from talking to her that she had rent receipt but don’t have it. have reason to believe, although that there was no referral to psychiatrist... THE COURT: She hasn’t attended AA. MS. REARDON: She says she’s attended AA. THE COURT: Oh, according to the affidavit. [8] During the course of this proceeding counsel for the Applicant withdrew as solicitor of record because of lack of instruction from her client. This was accepted by the court. [9] The court went on to make decision referring to an order of July 18th, 2002, which required the Applicant to attend AA regularly, attend regular addiction counselling for alcohol and drug abuse, submit to urine testing and continue to attend mental health counselling at service or agency recognized by Family and Children’s Services, temporary care and custody was granted to the agency with access. review of disposition was set for October 8th, 2002, and on that date, by consent of counsel, it was set for November 12th, 2002. [10] The court’s decision on November 12th, 2002, is set out in the transcript of the hearing. THE COURT: So, based on the evidence that was taken at the interim hearing and all the affidavits and attachments that came from Pictou County, the court made finding then that the child was in need of protective services and made further finding at the protection hearing, based on that same evidence, and based on the same evidence today and the report of Mr. Graham, there was an order dated July the 18th where the Respondent was to comply with certain things in order to protect the child. She’s failed to do that. She’s failed to take an interest in her child, failed to appear here and looking at the plan of the Agency, there’s no plan on the part of the mother and also looking at how the child is doing in the foster home, think that what the agency is asking for is in the child’s best interests and I’ll make an order for permanent care and custody to the Agency. [11] The evidence before the court from all proceedings indicates the Applicant has failed to recognize and take control of her alcoholism. professional report prepared by Kevin Graham and dated July 2002 refers to this problem and the Applicant’s unwillingness to do anything about it. Her personal difficulties, denial, misrepresentations, irresponsibility, poor judgment and decision making all erode her parenting capacity to the point that she is not able to provide stable and secure home for C. at present. She has not indicated she is willing to change. ISSUE: [12] Whether the court should set aside its order for permanent care and custody. THE LAW: Arguments of Counsel: 1. On behalf of the Applicant: [13] The jurisprudence in Nova Scotia indicates that C.P. Rule 37.11(2) has not been used in the context of family law matter. It is further submitted that as there is no provision to set aside an order for permanent care under the Children and Family Services Act (there is provision to terminate) or regulations made thereunder, or under the Family Court Act or Family Court Rules, the Civil Procedure Rules apply and more particularly, rule 37.11. [14] Reference is made in the decision of Squitti v. Squitti [1997] No. 4781 where Justice McCartney set aside an ex-parte order where the Respondent failed to notice the hearing date because she was in crisis. In Roberts v. White [1987] O.J. No. 625, Master McBride set out what he/she considered to be the test. think there are two principal requirements to be observed by person moving under this rule [Rule 37.14(1)(b) which is similar to our Rule 37.11(2)]. The first is that the mover must demonstrate that he failed to appear because of an accident, or his mistake or that there was insufficient notice. The second requirement is one to the end that relief from an order made in the absence of person must be promptly sought. 2. On behalf of the Agency: [15] Counsel on behalf of the agency (Family and Children’s Services) argues that the decision and principle set out by Justice Haliburton in Cameron v. Gabriel S.A.R. 01552 July 20, 1999. In that case an application to set aside was dismissed for various reasons including reference to the court being “functus officio” and there was no accident, mistake or insufficient notice. The court also felt that C.P. Rule 37 did not apply to the particular type of action it was dealing with. [16] Civil Procedure Rule 37.11(2) is as follows: 37.11(1) When party fails to attend on hearing of an application or on any adjournment thereof after being served with notice of application, the court may proceed in his absence. [E. 32/5(1)] (2) party who has failed to appear on an application through accident, mistake, insufficient notice or other just cause may, within ten days from the time when the order granted on the application comes to his attention, apply on notice to set aside or vary the order and the court may do so on such terms as it thinks just. [E. 28/4(1); 32/5(4)] CONCLUSIONS/DECISION: [17] There is no provision in the Family Court Rules to set aside an order of the court and in that event reference is made to the Civil Procedure Rules. The Applicant has complied with the time requirements set out in Rule 37.11(2) having made application on November 20, 2002 to set aside the order of November 12, 2002. [18] The Applicant’s argument is one of mistake as to the hearing date. Her counsel at the time referred to her inability to contact and communicate with the Respondent now Applicant) so she withdrew. [19] In family law matters the paramount consideration will always override any technical argument. It is in the best interests of the child that because of this mistake, the court take jurisdiction and set aside the permanent care and custody order to allow the Applicant another disposition review hearing [20] The order of November 12, 2002 is set aside under C.P. Rule 37.11(2) and this matter will be set down for a disposition review hearing on a date convenient to counsel. [21] At the hearing, the Applicant will be required to prove compliance with the order of July 18, 2002 and file written plan for the long term care of the child. Order accordingly. John D. Comeau Chief Judge of the Family Court for the Province of Nova Scotia.
The mother of a child applied to have the court set aside its decision granting permanent care and custody of the child to the Agency. When the applicant did not appear at the original hearing, her counsel withdrew as solicitor of record. She now argued that she had made a mistake in the hearing date. Application allowed; previous order set aside and matter set down for disposition review hearing. In order to protect the best interests of the child, the court must take jurisdiction and set aside the previous order to allow the applicant another disposition review hearing.