2013 NBCA 8, 2013 NBCA 8

COURT OF APPEAL OF NEW BRUNSWICK 111-12-CA THE MINISTER OF SOCIAL DEVELOPMENT (Applicant) APPELLANT -and- N.S. and A.L.G. (Respondents) RESPONDENTS -and- THE COLLEGE OF PSYCHOLOGISTS OF NEW BRUNSWICK INTERVENOR LA MINISTRE DU DÉVELOPPEMENT SOCIAL (Requérante) APPELANTE -et- N.S. et A.L.G. (Intimé

s) INTIMÉS -et- LE COLLÈGE DES PSYCHOLOGUES DU NOUVEAU-BRUNSWICK INTERVENANT The Minister of Social Development v. N.S., A.L.G. and the College of Psychologists of New Brunswick, 2013 NBCA 8 La Ministre du Développement social c. N.S., A.L.G. et le Collège des psychologues du Nouveau- Brunswick, 2013 NBCA 8 CORAM: The Honour able Justice Richard The Honourable Justice Bell The Honourable Justice Quigg CORAM : L’honorable juge Richard L’honorable juge Bell L’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: July 24, 2012 Appel d’une décision de la Cour du Banc de la Reine : Le 24 juillet 2012

History of case: Decision under appeal: Unreported Preliminary or incidental proceedings: Court of Appeal [2012] N.B.J. No. 434 (QL) Historique de la cause : Décision frappée d’appel : Inédite Procédures préliminaires ou accessoires : Cour d’appel [2012] A.N.-B. n o 434 (QL) Appeal heard : January 8, 2013 Appel entendu : Le 8 janvier 2013 Judgment rendered: January 21, 2013 Jugement rendu : Le 21 janvier 2013 Counsel at hearing: For the appellant: Yves Duguay For the respondents: Martine Lanteigne, counsel for the respondent N.S. No one appeared for A.L.G. Nadine Losier, counsel for the children Sacha D.

Morisset, counsel for the College of Psychologists of New Brunswick Avocats à l’audience : Pour l’appelante : Yves Duguay Pour les intimés : Martine Lanteigne, avocate pour l’intimée N.S. Personne n’a comparu pour A.L.G. Nadine Losier, avocate pour les enfants Sacha D. Morisset, avocat pour le Collège des psychologues du Nouveau-Brunswick THE COURT The motion by the Intervenor, the College of Psychologists of New Brunswick, to adduce evidence on appeal is allowed. The appeal is allowed without costs. The matter is remitted to the Court of Queen’s Bench for a new trial before a different judge.

The following is the judgment delivered by

THE COURT I. Introduction [ 1 ] On July 24, 2012, a judge of the Court of Queen’s Bench, Family Division, dismissed the application brought by the Minister of Social Development for an order of guardianship, of N.S.’s children, who were four and three years of age respectively at the time of the hearing. The father of the children, A.L.G., had consented to the Minister’s application.

An overriding feature of the judge’s assessment of the matter was his ruling that two psychologists, who had provided court-ordered reports and had been qualified as expert witnesses at the outset of their trial testimony, were not qualified to offer opinion evidence. The judge decided as follows: [TRANSLATION] Considering the whole of the evidence, I find that it does not show that [N.S.] suffers from mental health problems, for the reason that only a psychiatrist can offer an opinion in this regard. With respect, psychologists cannot offer an opinion on an issue related to mental health.

Their expertise is as follows, according to the definition of the word [ psychologie ] “psychology” in the Nouveau petit Robert de la langue française , 2007 Edition: [TRANSLATION] “1 Knowledge of the human soul, considered as part of metaphysics”, and “2 Scientific study of mind and thought phenomena which are specific to living beings who are aware of their own existence.” [Paras. 51 and 52, Decision – July 24, 2012] [ 2 ] This ruling forms the basis of two of the Minister’s seven grounds of appeal.

The Minister maintains the trial judge erred in law by concluding that only psychiatrists can offer their opinion in regard to mental health issues, and psychologists cannot offer their opinion on the subject. [ 3 ] On December 20, 2012, a judge of this Court granted intervener status to the College of Psychologists of New Brunswick (the “College”) (see [2012] N.B.J. No. 434 (QL) ). [ 4 ] At the hearing of the appeal, the Court allowed the College’s motion to adduce fresh evidence.

After hearing arguments and considering the new evidence, we allowed the appeal, set aside the trial decision and ordered a new hearing before a different judge. The new hearing is to be consolidated with a second guardianship hearing currently scheduled regarding the same parties. We indicated that written reasons would follow. The following are those reasons. II.

Grounds [ 5 ] Although the Minister appeals on several grounds, we determined, on the basis of two of those grounds, that the judge erred in law when he concluded that only psychiatrists can offer opinions regarding a person’s mental health, thereby excluding psychologists from offering any such opinion. [ 6 ] Counsel for the mother conceded that the judge was likely in error in his determination respecting the evidence of the psychologists, but argued the error had no impact upon the outcome.

We agree the trial judge erred in law in ruling as he did with respect to the evidence of the psychologists and we are of the view that this error played a pivotal role in the ultimate outcome. Since the success of these grounds of appeal requires us to dispose of the matter by ordering a new trial, the other grounds are moot. III. Standard of Review

[7] In S.B. v. New Brunswick (Minister of Family and Community Services), 2006 NBCA 41, [2006] N.B.J. No. 167 (QL),Richard J.A. expressed the following views: It is common ground that the scope of appellate review in child protection matters, including guardianship cases, is very narrow.Considering the numerous decisions of the Supreme Court of Canada and of this Court on point, it would have been futile for any of theparties not to acknowledge the limited circumstances where appellate intervention may be justified: see, for example, New Brunswick(Minister of Health and Community Services) v.

C.(G.C.), (SCC), [1988] 1 S.C.R. 1073 at para. 5, New Brunswick(Minister of Health and Community Services) v. L.(M.), (SCC), [1998] 2 S.C.R. 534 at paras. 34-36, D.B. v. NewBrunswick (Minister of Family and Community Services) (2000), (NB CA), 228 N.B.R. (2d) 218 (C.A.), at paras. 6-7, Nouveau-Brunswick (Ministre des Services familiaux et communautaires) c. A.N. et Y.N. (2003), 264 N.B.R. (2d) 80 at para. 11,New Brunswick (Minister of Family and Community Services) v. M.D., 2006 NBCA 7 , [2006] N.B.J. No. 11 (C.A.) (QL) atparas. 5-7 and T.T. v.

New Brunswick (Minister of Family and Community Services), [2006] N.B.J. No. 39 (C.A.) (QL) at para. 3. Thesecases stand for the proposition, succinctly stated by Drapeau C.J.N.B. in A.N. at para. 11, that an appellate court will not intervene inchild protection cases “unless the trial judge’s decision has no factual merit or was based on an error in principle, a failure to consider allrelevant factors or the consideration of an irrelevant factor.” [para. 3] [Emphasis added.] See also A.W. v. The Minister of Family and Community Services, 2007 NBCA 77, 322 N.B.R. (2d) 162; Van de Perre v.

Edwards, 2001SCC 60, [2001] 2 S.C.R. 1014; A.M.K.H. v. K.A.M., 2003 NBCA 33, 259 N.B.R. (2d) 291; N.J.P. v. New Brunswick (Minister of SocialDevelopment) 2012 NBCA 3, 382 N.B.R. (2d) 245; New Brunswick (Minister of Social Development) v. G.B., 2012 NBCA 62, 392N.B.R. (2d) 209. [8] As the above jurisprudence delineates, the scope of appellate review with respect to guardianship cases is quite narrow and,in the absence of material error, such as a serious misapprehension of the evidence or an error of law, deference must be shown.

In thiscase, an obvious error in law was made by the judge when he made the broad statement that psychologists cannot give opinionsrespecting mental health. This error requires intervention by this Court on the standard of correctness. IV. Analysis [9] The evidence the College of Psychologists adduced establishes without question that psychologists are competent to provideopinions on the issue of mental health. They regularly testify as expert witnesses in a wide variety of cases, including criminal matters,accident cases and family law cases.

They have training and expertise in this field, which is outside the scope of ordinary knowledge andtheir evidence, in many instances, is both relevant and necessary to assist the trier of fact. In short, they meet the test to provide opinionevidence within their field of expertise. There was simply no basis whatsoever for the judge’s conclusion that only psychiatrists canprovide an opinion on mental health issues, and such a conclusion is not borne out by even the most cursory review of case law.

Properlyqualified psychologists are entitled to offer opinion evidence with respect to mental health issues, and have historically done so in courtsacross the country. They play an important role in the area of mental health and in the delivery of multidisciplinary health services in ourProvince and elsewhere. [10] We conclude by noting this is not a case where the judge considered the evidence he had heard and then rejected it. It is alsonot a case where he properly weighed the evidence of the psychologists against the opinion of another professional and chose one overthe other for well-articulated reasons.

This is a case where the judge determined that, in law, the evidence of the psychologists couldnot be considered because they were not capable of providing opinions as to the mother’s mental health. In that regard he erred. V. Disposition [11] In the circumstances, the trial judge’s decision cannot stand. It was not reached on proper application of the governing legalprinciples and on the consequent consideration of all relevant evidence. For that reason, we allowed the appeal, set aside the trialdecision and ordered a new trial before a different judge.

According to the parties, a subsequent guardianship application involving thesame children and the same parties will be heard in the Court of Queen’s Bench in the near future. The parties all agreed the new trial ofthis matter should be consolidated with the new application, so, with their consent, we would so direct. In the circumstances, we do notaward any costs.

___________________________________ J.C. MARC RICHARD, J.A. ___________________________________ B. RICHARD BELL, J.A. ___________________________________ KATHLEEN A. QUIGG, J