Minister of Community Services Appellant v. D.S. v. C.S., 2023 NSCA 67

Nova Scotia Court of Appeal Citation: Nova Scotia (Minister of Community Services) v. D.S. ; Nova Scotia (Minister of Community Services) v. K.M. 2023 NSCA 67 Date: 20230613 Dockets: CA 519915 CA 520524 Registry: Halifax Between: Minister of Community Services Appellant v. D.S. and C.S. Respondents Between: Minister of Community Services Appellant v. K.M. and B.W. Respondents Restriction on Publication: s. 94(1) of the Children and Family Services Act Judge: The Honourable Justice Cindy A. Bourgeois Appeal Heard: June 13, 2023, in Halifax, Nova Scotia Subject: Children and Family Services Act ; principles of statutory

interpretation; “constructive taking into care"

Summary: On June 13, 2023, this Court simultaneously heard two appeals advanced by the Minister of Community Services (the “Minister”). Both matters involved protection proceedings brought under the Children and Family Services Act , S.N.S. 1990, c. 5 , as amended (the “ CFSA ”). Both were dismissed by the hearing judges because the Minister had failed to bring the matters before the court within the statutorily prescribed time frame, resulting in a loss of jurisdiction. The Minister appealed both determinations, and submitted the judges inappropriately applied the concept of a “constructive taking into care” – the genesis of which is anchored in an incorrect

interpretation of the CFSA . The hearing judges were presented with evidence regarding the nature of the interactions between employees of the Minister and the parents prior to court involvement being initiated. Although in each instance the children in question were not physically removed by the Minister, the hearing judges concluded at the interim hearing that the context and the Minister’s prior conduct gave rise to a “constructive taking into care”. The hearing judges identified specific dates, based upon the evidence before them, when the Minister had constructively taken the children into care.

As the constructive taking was found to have occurred several weeks prior to the filing of the application, the judges found the Minister had failed to bring the matter before the Court within five business days as required in the CFSA , and as a result they had no jurisdiction to hear the application. Dismissals ensued. Issues: Did the hearing judges err in finding the Minister had constructively taken the children into care pursuant to the CFSA ? Result: Appeals allowed. The concept of a “constructive taking into care” does not align with a correct

interpretation of the provisions of the CFSA . To take a child into care, the Minister must, through its representative, physically remove a child from its parent or guardian. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 16 pages. Nova Scotia Court of Appeal Citation: Nova Scotia (Minister of Community Services) v. D.S. , Nova Scotia (Minister of Community Services) v. K.M. 2023 NSCA 67 Date: 20230613 Dockets: CA 519915 CA 520524 Registry: Halifax Between: Minister of Community Services Appellant v. D.S. and C.S. Respondents

Between: Minister of Community Services Appellant v. K.M. and B.W. Respondents Restriction on Publication: s. 94(1) of the Children and Family Services Act Judges: Farrar, Bourgeois and Beaton, JJ.A. Appeal Heard: June 13, 2023, in Halifax, Nova Scotia Written Release: September 27, 2023 Held: Appeals allowed, per reasons for judgment of Bourgeois, J.A.; Farrar and Beaton, JJ.A. concurring Counsel: Amanda Dillman and Alison Campbell, for the appellant Jim O’Neil, for the respondent, C.S. Allison Kouzovnikov, for the respondent, D.S. Susan Young and Jessica Simm, articled clerk, Amicus Curiae, D.S.

Lola Gilmer and Emma Astephen, for the respondent, K.M. The respondent, B.W., attending by telephone Restriction on publication : Pursuant to s. 94(1) Children and Family Services Act , S.N.S. 1990, c. 5 . Publishers of this case please take note that s. 94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication. SECTION 94(1) PROVIDES : Prohibition on publication 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. Reasons for judgment: [ 1 ] On June 13, 2023, this Court simultaneously heard two appeals advanced by the Minister of Community Services (the

“Minister”). Both matters involved protection proceedings brought under the Children and Family Services Act , S.N.S. 1990, c. 5 , as amended (the “ CFSA ”). Both were dismissed by the hearing judges because the Minister had failed to bring the matters before the court within the statutorily prescribed time frame, resulting in a loss of jurisdiction. [ 2 ] The Minister appeals both determinations, and submits the judges inappropriately applied the concept of a “constructive taking into care” – the genesis of which is anchored in an incorrect

interpretation of the CFSA . In the alternative, the Minister submits that even if a constructive taking into care had occurred, the hearing judges had the discretion to extend the timeline and to retain jurisdiction. As will be seen in the reasons to follow, it is not necessary for the Court to address this alternative argument. [ 3 ] At the conclusion of the appeal hearing, the Court advised both appeals would be allowed, with reasons to follow. These are those reasons. The legislative context [ 4 ] The two matters under appeal engage the

interpretation of provisions of the CFSA relating to the commencement of child protection applications by the Minister [1] . It is helpful to set these key provisions out to place the subsequent review of the challenged decisions in context. [ 5 ] Protection applications are brought pursuant to s. 32, which states: Court application by agency 32 An agency may make application to the court to determine whether a child under sixteen years of age is in need of protective services or, where a representative has taken a child into care pursuant to

Section 33 without an application having been made pursuant to this Section, the agency shall make such application. [Emphasis added] [ 6 ] As demonstrated by the above, the Minister may bring an application when a child is not in her care (seeking a supervision order), but is mandated to do so when a child has been taken into care. [ 7 ]

Section 33 applies when the Minister’s representative takes a child into care: Taking into care 33

(1) An agent [A representative] may, (

a) at any time before or after an application to determine whether a child is in need of protective services has been commenced, if the child is under sixteen years of age; or (

b) at any time after an application to determine whether a child is in need of protective services has been commenced, if the child is sixteen years of age or more but under nineteen years of age, without warrant or court order take a child into care where the representative has reasonable and probable grounds to believe that the child is in need of protective services and the child’s health or safety cannot be protected adequately otherwise than by taking the child into care.

(2) On taking a child into care, a representative shall forthwith serve a notice of taking a child into care upon the parent or guardian if known and available to be served. [ 8 ]

Section 39 contains a requirement that where an application is made, or a child is taken into care, an early court appearance must follow: 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.

(2) Where at an interim hearing pursuant to subsection (1) the court finds that there are no reasonable and probable grounds to believe that the child is in need of protective services, the court shall dismiss the application and the child, if in the care and custody of the agency, shall be returned forthwith to the parent or guardian. [Emphasis added] [ 9 ] “Taken into care” is not defined as a stand alone concept in the CFSA . As will be seen below, the legislation when read as a whole provides a meaning. Advent of a “constructive taking into care” [ 10 ] I will briefly discuss both decisions under appeal, but prior to doing so, I will review the reasons in Nova Scotia (Community

Services) v. K.B. , 2021 NSSC 372 , (“K.B.”). Although not the subject of this appeal, that decision provides context for the two matters before the Court which effectively mirrored its approach. [ 11 ] At this juncture, it is helpful to observe that in all three matters, the hearing judges were presented with evidence regarding the nature of the interactions between employees of the Minister and the parents prior to court involvement being initiated.

Although in each instance the children in question were not physically removed by the Minister, the hearing judges concluded at the interim hearing that the context and the Minister’s prior conduct gave rise to a “constructive taking into care”. [ 12 ] The hearing judges identified specific dates, based upon the evidence before them, when the Minister had constructively taken the children into care.

In all three matters, because the “constructive taking” was found to have occurred several weeks prior to the filing of the application, the judges found the Minister had failed to bring the matter before the court within five business days, and as a result they had no jurisdiction to hear the application. Dismissals ensued. [ 13 ] I turn now to the reasons in K.B. , which gave rise to the concept of a “constructive taking into care”. The circumstances before the court were described by the hearing judge, Justice Michelle K.

Christenson, as follows: [2] As a result of a series of incidents, K.B., ended up at a women’s shelter in New Brunswick. Her daughter, N., who is under the age of three, ended up at a friend’s house in Shelburne, Nova Scotia. Her ex-boyfriend was incarcerated and charged with attempted murder in relation to a third party. [3] Child and Family Services became involved. By the time the matter was brought to Court, K.B., acting on the recommendations from the local R.C.M.P., had fled the jurisdiction due to safety concerns.

Her daughter, N., according to the Minister, was in the care of a friend under the guise of a voluntary placement. K.B. contacted her friend directing the child to be brought to her in New Brunswick. That did not happen. The Minister filed a Child Protection Application. [4] In Court, K.B., appeared by phone, had no disclosure, was not represented. She took no position on any issue before the Court.

Based on the evidence before me, I determined there were reasonable and probable grounds to believe the child needed protective services. [5] The interim hearing was adjourned to allow K.B. the opportunity to obtain and instruct counsel. When the matter reappeared, I learned K.B. was contesting the Courts’ jurisdiction based on what she alleged was a “shadow apprehension.” [6] K.B. argued, the matter had not been brought before the Court in the requisite five-day time period. She argued I lost jurisdiction to make the finding on the grounds of protection.

N., needed to be returned. [7] The Minister asserted there was no taking into care. She argued the matter was brought to Court pursuant to an application. [ 14 ] K.B. asserted the Minister took the child into care on September 24, 2021 when social workers devised a “safety plan” which continued the child’s care with her friend. She said the social workers had interfered with her parental autonomy to such a degree that they had taken the child into care within the meaning of the CFSA . She argued this triggered the obligation to bring the matter before the court within five working days pursuant to s. 39(1).

Since the Minister had failed to do so, she argued the court had no jurisdiction to entertain the subsequently filed Notice of Child Protection Application. [ 15 ] The hearing judge set out the Minister’s responding position as follows: [15] The Minister maintains the mother voluntarily placed her child in the care of a friend. A safety plan was developed. It was implemented. At no time did a representative of the Minister take physical care and control of the child. An application was made pursuant to

Section 32 of the Children and Family Services Act , S.N.S. 1990, c. 5 (the “ Act ”), and within five clear days the matter was in Court. She argues I have jurisdiction to decide the remaining issue of placement. [ 16 ] The hearing judge turned her mind to what constituted a “taking into care”. She observed: [24] The term “taking into care” is itself not defined in the Act . [25] The Minister argues, that given the principles of statutory

interpretation, the term taking into care, means: “an agency through its appointed representative has taken physical care and control of a child.” Only that constitutes a taking into care. [26] K.B. argues, a taking into care is that and much more. A taking into care is essentially “an interference of parental autonomy such that the Minister and not the parent controls the care and the residence of the child, or the care and control of the child.” [Emphasis in original] [ 17 ] After reviewing a number of the provisions of the CFSA , and reminding herself of the principles of statutory

interpretation, the hearing judge concluded that “taking into care” was a flexible concept which permits a judicial examination of the contextual circumstances. She wrote: [87] After a consideration of the various sections of the Act , and the principles of statutory

interpretation as noted by Counsel, I am of the view that the [Minister’s] definition of a taking into care, will always constitute a taking into care. [88] Further, that K.B.’s definition of a taking into care, may constitute a taking into care, but it will depend on: 1) the circumstances of each case, 2) the level of interference by the Minister into the care and control of the child and the child’s residence, and 3) it will depend on the thorny issue of consent considered objectively and subjectively. [Emphasis in original]

[ 18 ] The judge then provided a list of 12 factors which would assist a court in determining whether a taking into care had taken place: [90] In my view, these factors assist me in determining if in fact, a taking into care has occurred: 1. Did the Minister express an intent to take the child into care, either to the child, a parent, or third-party who had the child? 2. Was this intent reduced to writing in the form of a Notice? 3. Was there reference to the need of a safety plan to avert more intrusive measures? What were the circumstances of this conversation and the specific details of the plan? 4.

Was a plan developed? By whom? 5. Did that plan place restrictions on the parents’ care and control of the child, and if so, how much? 6. Did the Minister reference to a parent, guardian or third-party having control of the child, they had a notice of taking into care? 7. Was this notice served on anyone? 8. Who was present at the time the safety plan was developed? 9. Did the Minister request assistance from the Police or the R.C.M.P. to attend with them? Did they attend? Was the parent aware of the police presence? 10. Was the child taken into possession; actual or constructive? 11.

What was the intention of the parent? Did they provide valid consent? Did they understand the consequences of what they were being asked to consent to? Did the parent have the benefit of independent legal advice or a written document to outline the specifics of what they were being asked to agree to? 12.

Did the safety plan as developed disrupt the parents’ physical care and control of the child and would a reasonable person in the parents’ position have believed they truly had options? [ 19 ] Applying these factors, the judge concluded the child had been constructively taken into care by the Minister on September 24, 2021 as alleged by K.M. Consequently, because the Minister had failed to bring the matter before the court within five working days from that date, the judge concluded she had no jurisdiction, and dismissed the application. [ 20 ] The Minister did not appeal.

The conclusions reached in the K.B. decision had implications for the two matters now under appeal. D.S. and C.S. proceeding [ 21 ] In August, 2021, the child L. made a disclosure of sexual abuse against her father, C.S. The child was jointly interviewed by the RCMP and social workers on behalf of the Minister. Criminal charges were laid against the father and he was released on an undertaking to have no contact with L. and for his contact with other children in the home to be supervised.

The mother, D.S., and the children remained in the family home. [ 22 ] On June 28, 2022 the Minister became aware the criminal proceedings had been dismissed, and the undertaking vacated. On August 23, 2022, social workers went to the family home and advised the mother the father could not remain there. The Minister became aware on September 14 th the father was residing on the family property in a trailer. [ 23 ] It was not until October 19, 2022 that social workers conducted a Risk Management Conference in relation to L.’s circumstances.

A decision was made at that time to bring a court application seeking a supervision order with the children remaining in the care of their mother. [ 24 ] The Minister filed a Notice of Child Protection Proceeding on October 26, 2022, with the interim hearing commencing on November 2, 2022. Judge Timothy Daley found there were reasonable and probable grounds to believe the children were in need of protective services and ordered they remain in the “care and custody” of their mother, subject to the supervision of the Minister.

The hearing was adjourned to November 22, 2022 for the conclusion of the interim hearing and to hear a motion brought by the respondents requesting the application be dismissed, as the court had lost jurisdiction. [ 25 ] On November 22, 2022 the court heard evidence and received submissions. The respondents argued the children had been constructively taken into care by the Minister on June 28, 2022 when social workers advised the mother that the father could no longer remain on the family property.

They said this triggered the running of the five working day limit in s. 39(1) of the CFSA , and because the Minister failed to have the matter brought to court within that time frame, the judge lacked jurisdiction to hear the matter. [ 26 ] The judge agreed. In his brief oral reasons delivered at the conclusion of submissions, the judge said: I've indicated at the beginning of this hearing that today I will be providing a written decision, regardless of the findings made by the Court. But today I want to be very, very brief so that I can provide you with that written decision within a short period of time.

But I simply cannot provide you with a full oral decision today. I never do that in advance; I never prepare any notes in advance as if I’m going to give a particular type of decision because that would suggest that I'd made up my mind in some way and I haven't. But I have now and I'm going ... I will be making the finding that I do not have jurisdiction to hear this matter on the basis that there was a constructive taking into care on or about June 28 of 2022, and the matter is dismissed.

Now, with respect to any findings, there is the option of the court to say that if I'm wrong, I therefore make the following finding on reasonable and probable grounds. I'm not going to do that here. I will also note for the record that it is a "without prejudice" dismissal. The Minister, of course, can refile if she so chooses and I say she because the Minister is a woman in this province. So, she may choose to refile an application.

I have no idea as to the merit of it or what would become of it, but at that point, that would be the reasonable and probable grounds assessment at the first stage and the constructive taking into care would no longer be the issue. But I am indicating on the record now that my finding is, and my decision will reflect, that this was a constructive taking into care, the timeline was therefore no t met, and I have no jurisdiction to hear this particular application. [ 27 ] The judge did not provide the promised written reasons.

The resulting order, issued January 27, 2022, does not elaborate on how the judge reached his conclusion the Minister had constructively taken the children into care, or how such a concept arose from the statutory provisions within the CFSA . K.M. and B.W. proceeding [ 28 ] This matter involved a young child, 17 months old at the time of the hearing judge’s decision. The record demonstrates the Minister originally became involved with the family due to a police referral citing concerns of domestic violence.

Several months later, on August 22, 2022, the child’s maternal grandmother contacted the Minister to report concerns respecting the mother’s mental health and drug use. The grandmother advised that the mother, K.M., had left the child with her five weeks prior. [ 29 ] On August 24, 2022, K.M. went to the grandmother’s home seeking to retrieve the child. Police became involved and the child remained with the grandmother. The following day, social workers went to K.M.’s home to discuss the referral concerns. K.M. acknowledged she had mental health struggles and was seeking treatment.

The social workers discussed services with her, including drug testing. They further instructed K.M. that she “needs to stop showing up at her mother’s home and getting police involved”. [ 30 ] In September, K.M. again went to the grandmother’s home in an unsuccessful attempt to retrieve the child. Shortly thereafter, the Minister held a Risk Management Conference. The following day, September 14, 2022, social workers met with K.M. and advised a file had been opened for “long-term services”.

K.M. was further told the Minister wanted the child to remain with the grandmother while services were being accessed. [ 31 ] In her reasons the hearing judge, Justice Lee Anne MacLeod-Archer, sets out the process that followed: [16] The Minister filed its Notice of Child Protection Application (“Application”) on November 10, 2022. The matter came before the Court for the first appearance, known as the 5-day interim hearing, on November 21, 2022.

Neither parent had been served by that date, so the Minister sought (and was granted) a waiver of the time for service. [17] At that first appearance, I questioned whether there had been a constructive taking into care, and whether that impacted my jurisdiction to deal with the matter. The Minister’s response was that the child was not taken into care, rather she’d been left in the grandmother’s care while the Minister attempted “least intrusive measures” to address the risk.

It was the Minister’s position that because the child was not taken into care, the matter was properly before the Court within 5 business days of filing as required by s. 39(1) of the Children and Family Services Act , SNS 1990, c. 5 (“ CFSA ”). [18] The Court questioned what triggered the filing of the Application two months later, if as the Minister argued, KM was cooperating with a plan she agreed to.

There is nothing in the affidavit filed on November 10, 2022 to suggest that KM stopped cooperating, that there were new concerns or some triggering event which prompted the filing, or that the “safety plan” was no longer adequate to address the risk. Counsel responded that as the file progressed, it became “apparent” that an Application would be necessary. I therefore invited the Minister to file an updated affidavit identifying what transpired to trigger the Application. [19] I adjourned the interim hearing for conclusion within thirty days as permitted by the legislation.

However, as required by s 39(4) of the CFSA , I granted an interim order placing the child in the maternal grandmother’s supervised care pending further order of the Court. [20] With a date set for completion of the interim hearing, I directed the Minister to file three things before the return date:

A) written submissions on whether there was a constructive taking into care (citing Nova Scotia (Community Services) v. KB , 2021 NSSC 372 );

B) written submissions on whether the Court lacked jurisdiction if there’d been a constructive taking almost two months prior; and

C) an updated affidavit outlining any new concerns or events that might have triggered the Application. [21] When the matter came back before the Court on December 9, 2022 the Minister had filed none of these documents. By that time, KM’s counsel was present, so I exercised my discretion to extend the deadline for completion of the 30-day interim hearing and directed both counsel to file submissions on the issues of a constructive taking and jurisdiction.

I also granted an extension of time for the Minister to file an updated affidavit. [Emphasis in original] [ 32 ] The matter was adjourned to December 22, 2022 at which time the hearing judge heard submissions. The application was dismissed in oral reasons given the same day based on a constructive taking into care, and a resulting lack of jurisdiction. [ 33 ] In her written decision, Nova Scotia (Community Services) v. K.M. , 2023 NSSC 8 , the hearing judge adopted the reasons in K.B .

She did not undertake an independent assessment of whether a “constructive taking into care” aligned with the statutory scheme of the CFSA . [ 34 ] After considering the 12 factors set out in K.B. , the hearing judge concluded a constructive taking into care arose on the evidence before her:

[27] Based on all of the above, I find that the child was constructively taken into care on September 14, 2022 when the Ministerdirected KM to leave the child with the grandmother and stop showing up at the grandmother’s home. [28] I further accept KM’s argument, in the alternative, that the taking into care may have happened even sooner, when KM wasrefused contact with the child and directed by police to leave the grandmother’s home.

That took place on August 24, 2022, two daysafter the Minister directed the grandmother that if there were “concerns about [KM’s] mental health or that she is under the influence of asubstance…” to call police or the Minister if KM showed up at her home. . . . [29] Under s. 39(1) the Minister was obliged to file its Application within five working days of the date of the taking.

The latest dateof these two dates of taking the child into care would place that deadline at September 21, 2022. [30] The Application wasn’t filed until November 10, 2022, so the Minister did not meet the legislated deadline for filing itsApplication. Issues [35] The Notices of Appeal filed by the Minister raise three identical grounds of appeal: 1. The Judge erred in [her/his] statutory

interpretation of s. 2, s. 32 and s. 33 of the Children and Family Services Act, SNS1990, c 5 (“CFSA”); 2. The Judge erred in finding a “constructive taking into care” had occurred; 3. The Judge erred in finding the Court had lost jurisdiction, rather than extending the statutory deadline. [36] A fourth ground of appeal was pled in the K.M. and B.W. matter: 4. The Judge erred in her application of the principle of the best interests of the child; [37] The Minister has also filed a Motion for Fresh Evidence in each appeal supported by affidavits sworn by counsel, Ms.Lennerton.

The purpose of the affidavits are to set out events which occurred following the dismissals. Section 49(5) of the CFSApermits this Court to receive “evidence relating to events after the appealed order”.[2] I am satisfied this information is not necessary todispose of the appeals before us.

It is uncontested, however, that following both dismissals, the Minister recommenced protectionproceedings, which are still ongoing. [38] After having considered the record and the submissions of the parties, I would frame the single question for determination as: Did the hearing judges err in finding the Minister had constructively taken the children into care pursuant to the CFSA? Standard of Review [39] In A.M. v. The Children's Aid Society of Cape Breton-Victoria, 2005 NSCA 58, Justice Cromwell said: [26] This is an appeal.

It is not a retrial on the written record or a chance to second guess the judge’s exercise of discretion. Theappellate court is not, therefore, to act on the basis of its own fresh assessment of the evidence or to substitute its own exercise ofdiscretion for that of the judge at first instance. This Court is to intervene only if the trial judge erred in legal principle or made apalpable and overriding error in finding the facts.

The advantages of the trial judge in appreciating the nuances of the evidence and inweighing the many dimensions of the relevant statutory considerations mean that his decision deserves considerable appellate deferenceexcept in the presence of clear and material error: Family and Children’s Services of Lunenburg County v. G.D. , [2003] NSJ No 416(Q.L.) (C.A.) at para. 18; Family and Children’s Services of Kings County v. B.D. (1999), 1999 NSCA 180 , 177 N.S.R. (2d)169 (C.A.); Nova Scotia (Minister of Community Services) v. C.B.T. (2002), 2002 NSCA 101 , 207 N.S.R. (2d) 109; Van dePerre v.

Edwards, 2001 SCC 60 , [2001] 2 S.C.R. 1014 at paras. 10 - 16. (Bolding in original) [40] These appeals address whether the concept of a “constructive taking into care” as applied by the hearing judges is consistentwith the governing statutory scheme contained in the CFSA. A correctness standard is engaged. Analysis [41] From the two written decisions reviewed earlier, it is apparent the hearing judges had serious concerns about the conduct of theMinister both before and after the commencement of the proceedings.

Justice Christenson was concerned about the voluntariness of“safety plans” implemented by the Minister and parents, and the power imbalance that may arise in those circumstances. JusticeMacLeod-Archer questioned why the Minister was bringing an application two months after the mother agreed to have the child staywith her mother, and specifically what had happened to give rise to reasonable and probable grounds the child was currently in need ofprotective services. [42] This decision is not intended to suggest that such concerns were not warranted.

Nor should these reasons be read as anendorsement of the Minister’s conduct in any of the matters referenced herein. From the record it would appear there was a considerable

period of time in each case when parental autonomy was significantly impacted by the Minister’s employees who seemed content to leave status quo arrangements in place rather than formalize the Minister’s involvement through an application. That being the case however, the issue is whether the provisions of the CFSA can be interpreted in such a manner as to give rise to a “constructive taking into care”. [ 43 ] Judges in child protection matters cannot write their own standards that are inconsistent with the statutory scheme of the CFSA ( Children and Family Services of Colchester County v.

K.T. , 2010 NSCA 72 at para. 29 ). I am satisfied that in employing the concept of a “constructive taking into care”, that is exactly what the hearing judges did. I will explain. [ 44 ] As noted earlier, the term “taken into care” is not defined in the CFSA . However, principles of modern statutory

interpretation lend assistance to ascertaining its intended meaning. I note in particular: • It is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain. [3] • It is presumed that the legislature uses language carefully and consistently so that within a statute or other legislative instrument the same words have the same meaning and different words have different meanings. [4] [ 45 ] The word “care” is used many times in the CFSA , including in the context of ss. 33 and 39 .

It is presumed that its meaning remains consistent throughout the legislation, including in the context of a “taking into care”, and has been statutorily defined as follows: 3

(1) In this Act , (c) “care” means the physical care and control of a child; [Emphasis added] [ 46 ] When the legislature chooses to use a word, it intends it to convey meaning. The choice to include “physical care” within s. 3(1)(

c) demonstrates that in defining “care”, two elements are necessary – a physical component, along with control of a child. [ 47 ] In determining if the Minister has taken a child into care, the statutory meaning of “care” cannot be ignored. With respect, the hearing judges did just that. The judges focused exclusively on the control component of “care” and failed to recognize that the physical element is also necessary.

To take a child into care, the Minister must not only exert control over the child, but also have physically removed them. [ 48 ] The judge-made concept of a “constructive taking into care” fails to respect this clear legislative intent. A taking into care within the meaning of the CFSA can only occur when the Minister has physically removed a child from their parent or guardian. [ 49 ] I would allow the appeals on this basis alone. However, I also agree with the Minister that other aspects of the legislation render the hearing judges’ creation of a “constructive taking into care” untenable.

The examples below demonstrate the concept is not consistent within the legislative scheme of the CFSA . Required presence of a “Representative” [ 50 ] Sections 32 and 33(1) both reference that a “representative” takes a child into care. In the Children and Family Services Regulations , O.I.C. 2018-176, N.S. Reg. 120/2018, “representative” is defined as follows: 5

(1) A person must meet all of the following qualifications to be eligible to be appointed by the Minister as a representative: (

a) they must hold a degree in social work or equivalent degree, or be a registered member in good standing of the Nova Scotia College of Social Workers; (

b) they must have successfully completed the “Fundamentals of Child Protection” course and related requirements provided by the Department; (

c) they must have practised in the field of child protection or the field of child welfare; (

d) they must be knowledgeable regarding the Act and have the knowledge and skills in the field of child protection to warrant the person being appointed a representative under the Act , as evidenced by a statement from the head of an agency that attests to this. [ 51 ] It is clear that not every employee of the Minister will be a “representative” authorized to take a child into care. The Minister must plan to have a representative present in order to take a child into care as required by the legislation.

This supports, as argued by the Minister, the decision to take a child into care is one that she alone makes, and does not contemplate a judge, at a later point in time, making an independent finding that a taking into care has previously taken place. [ 52 ] It is impossible for the Minister to meet her statutory obligation to have a properly appointed representative present at a taking into care when a judge retroactively decides one has constructively taken place. None of the hearing judges appeared to consider the significance of this provision.

In my view, it is inconsistent with the concept of a “constructive taking into care”. Section 33(2) - serving notice [ 53 ] Section 33(2) of the CFSA places the following obligation on the Minister’s representative at the time a child is taken into care: 33

(2) On taking a child into care, a representative shall forthwith serve a notice of taking a child into care upon the parent or guardian if known and available to be served.

(Emphasis added) [ 54 ] It bears repeating that applying the concept of a “constructive taking into care” involves hearing judges making a retroactive determination the Minister had, at a fixed point in the past, taken a child into care. Indeed, in each case the Minister did not know she had constructively taken a child into care until the hearing judge found she had. Such an outcome is entirely at odds with the mandatory serving of notice to a parent or guardian at the time of the taking into care, or as soon thereafter as possible.

The requirement of notice is entirely consistent with a taking into care being an event, planned by the Minister, where a representative takes physical care of a child, removing them from their parent or guardian. Section 33(4) [ 55 ] Section 33(4) states: 33

(4) Where a child has been taken into care pursuant to this Section, an agency has the temporary care and custody of the child until a court orders otherwise or the child is returned to the parent or guardian . (Emphasis added) [ 56 ] Clearly, when a child is taken into care, the Minister has temporary care and custody of the child. The provision does not contemplate a scenario where the Minister is found to have taken a child into care, yet the custody remains with a parent or guardian as occurred in the two cases under appeal.

For the Minister to have custody of a child, she must have the child in her possession. The concept of a “constructive taking into care” is entirely inconsistent with the clear language of the statute. [ 57 ] Further, the provision references a “return to the parent or guardian”, adding more support to the inevitable conclusion that a taking into care can only mean a situation where the Minister physically removes a child from a parent or guardian’s possession. Disposition [ 58 ] For the reasons above, I am satisfied the hearing judges erred in principle.

A “constructive taking into care” is not consistent with a proper

interpretation of the CFSA . A child is taken into care within the meaning of the legislation only when a representative of the Minister physically removes the child from a parent or guardian, not before. [ 59 ] The appeals are allowed. As the parties are presently before the courts below, there is no need to order a return of the matters for re-consideration. Bourgeois, J.A. Concurred in: Farrar, J.A. Beaton, J.A.