Nova Scotia (Community Services) Applicant v. Birth Registration # 2016-02-002781, 2017 NSSC 95

SUPREME COURT OF NOVA SCOTIA ( FAMILY DIVISION ) Citation : Nova Scotia (Community Services) v. Birth Registration # 2016-02-002781 , 2017 NSSC 95 Date: 20170329 Docket: SFHCFSA 102013 Registry: Halifax Between: Nova Scotia (Community Services) Applicant and Birth Registration # 2016-02-002781 Respondent Restriction on publication: 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: “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 relative of the child.” Addendum to the Decision of February 2 nd , 2017 Judge: Associate Chief Justice Lawrence I. O ’ Neil Released: March 29, 2017 in Halifax, Nova Scotia Counsel: Peter McVey, QC Judith A. Schoen By the Court :

Introduction [ 1 ] On February 2, 2017 this Court informed counsel for the parties by written decision that it was proceeding to

schedule a hearing to address constitutional questions the Court raised and arising from the language of the Children and Family Services Act , S.N.S. 1990 c.5. Those questions and related commentary appear as part of that decision reported as MCS v. Birth Registration #2016- 02-002781 , 2017 NSSC 27 .

This Court then proceeded to identify judicial time for the anticipated hearing. [ 2 ] Unknown to this Court, the Minister of Community Services and the parents proposing to adopt the subject child, filed a Notice of Motion in the Nova Scotia Court of Appeal on February 17, 2017 seeking inter alia a stay of these proceedings. [ 3 ] That stay was granted.

This Court learned of the Notice of Motion and the 'stay' when the ‘ stay order ’ was delivered to it with no accompanying explanation or backgrounder. [ 4 ] This is an unusual proceeding in that it is ‘ ex-parte ’ and ‘ in camera ’ . [ 5 ] Had the matter proceeded to a hearing before me or should it continue before me, a question for the Minister and the other parties is whether this is an appropriate case for the appointment of an amicus curiae . The parties are alerted that they may need to offer a position in response. [ 6 ] In the case of CAS v.

C.V. , 2005 NSCA 113 , counsel was appointed to assist parents in the preparation of a legal brief for the Court of Appeal. In the case of B.E.D. v. J.L.H [2003] N.S.J. 142 , the Department of Community Services intervened as amicus curiae . [ 7 ] In Nova Scotia (Minister of Community Services) v. A.A. , [2009] N.S.J. 310 , the mental capacity of the subject parent was at issue.

An amicus was appointed to assist the Court in its assessment of the case put forward by the Minister of Community Services which was that the parent lacked capacity. [ 8 ] The constitutional questions raised herein could hardly be more important for the “ unknown parent ” and the “ unrepresented child ” and therefore, for society and the Court. [ 9 ] There is a precedent for the appointment of amicus curiae in family law circumstances. [ 10 ] The question of whether this is such a case is held in abeyance pending further order of the Court of Appeal. O’Neil, ACJ