2013 NBCA 35, 2013 NBCA 35

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 22-13-CA S.H. (Respondent) APPELLANT S.H. (Intimé

e) APPELANTE - and - - et - THE MINISTER OF SOCIAL DEVELOPMENT (Applicant) RESPONDENT LA MINISTRE DU DÉVELOPPEMENT SOCIAL (Requérante) INTIMÉE S.H. v. The Minister of Social Development, 2013 NBCA 35 S.H. c.

La ministre du Développement social, 2013 NBCA 35 CORAM: The Honourable Justice Richard The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge Richard L’honorable juge Quigg L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: January 14, 2013 Appel d’une décision de la Cour du Banc de la Reine : Le 14 janvier 2013 History of case: Decision under appeal: 2013 NBQB 49 Preliminary or incidental proceedings: N/A Historique de la cause : Décision frappée d’appel : 2013 NBBR 49 Procédures préliminaires ou accessoires : S.O.

Appeal heard : April 9, 2013 Appel entendu : Le 9 avril 2013 Judgment rendered: April 9, 2013 Jugement rendu : Le 9 avril 2013

Counsel at hearing: For the appellant: Patricia Gallagher-Jette For the respondent: Corry A. Toole For the children: William H. Watts Avocats à l’audience : Pour l’appelante : Patricia Gallagher-Jette Pour l’intimée : Corry A. Toole Pour les enfants : William H. Watts THE COURT The appeal is allowed, the guardianship order is set aside and the matter is remitted to the Court of Queen’s Bench for a new trial before a different judge. LA COUR L’appel est accueilli, l’ordonnance de tutelle est annulée et l’affaire est renvoyée à la Cour du Banc de la Reine afin qu’un nouveau procès soit tenu devant un autre juge.

The following is the judgment delivered by THE COURT (Orally) [ 1 ] This is an appeal from a guardianship order of Noble J., of the Court of Queen’s Bench, Family Division, issued on January 14, 2013.

That order transferred to the Minister, on a permanent basis, the guardianship of five children, including their custody, care and control, and all parental rights and responsibilities. [ 2 ] More than 27 months (2¼ years) expired between the date the Minister applied for guardianship of the children and the court's decision to grant the application: 172 days (5 months and 21 days) between the date the application was filed and the beginning of trial, 260 days (8 months and 16 days) between the beginning of trial and final arguments, and a staggering 393 days (1 year and 27 days) between the end of the trial and the date the judge rendered his decision.

This in the context of a legislative scheme that requires the hearing of the application be held “ in no case later than fifteen days after the day the application was made to the court ” and which requires a court to dispose of such an application “ within thirty days after it is made” unless the court explains why “exceptional circumstances require the disposition of the application to be delayed beyond such day”: s. 52(2) and 53(3) of the Family Services Act , S.N.B. 1980, c.

F-2.2. [ 3 ] During the period between the end of trial and the final decision, the mother of the children made a personal plea to the Chief Justice of the Court of Queen’s Bench to expedite the long-delayed decision.

As well, counsel appointed to represent the children wrote to the judge seeking to have him recuse himself from the matter and have the matter heard by another judge on the grounds the “confidence of the litigants […] in the administration of justice has been shaken.” During this time, counsel for the Minister asked her superior to also intervene with the Chief Justice and periodically inquired of court staff as to the status of the file.

Meanwhile, one of the children, a 13-year-old boy, who along with four of his siblings lingered in foster care awaiting a decision, remarked to a social worker: “the judge probably forgot about [us].” [ 4 ] A year after the trial ended, the judge caused the hearing to reconvene asking the parties to advise the court whether “factors have arisen since the last hearing date that the Court should take into consideration.” Ultimately, the

judge ruled he would not consider the further evidence. He also determined he would not recuse himself. Three weeks after the hearing reconvened, the judge rendered a decision granting the guardianship order. [ 5 ] The mother of the children appeals the decision. Counsel for the children supports the appeal and maintains that the inordinate delays have infringed the children’s rights to security of their persons as protected by s. 7 of the Canadian Charter of Rights and Freedoms . He argues the decision must be set aside and a new trial be ordered before a different judge of the Court of Queen’s Bench.

Try as we might to find a suitable solution short of this remedy, we see no other option but to grant this relief. We recognize the irony of holding that the delays in this matter have been unreasonable and unacceptable while at the same time granting relief that will occasion yet more delay. However, we see no other solution and will address this matter more fully in our reasons for decision to follow. We add to our oral decision the following: the appeal is allowed on the grounds of the delay and the failure of the judge to consider the updated information some of the parties wanted to adduce.

Nothing in our reasons will affect the outcome of a new trial. Thus, there is no need for anyone to await receipt of those reasons before proceeding with and disposing of the matter. It is our expectation that this matter will be processed expeditiously, as contemplated by the legislation. [ 6 ] For these brief reasons and the more elaborate ones to follow, the appeal is allowed, the guardianship order is set aside, and the matter is remitted to the Court of Queen’s Bench for a new hearing before a different judge. ________________________________ J.C.

MARC RICHARD, J.A. ________________________________ KATHLEEN A. QUIGG, J.A. ________________________________ BRADLEY V. GREEN, J.A.