J.G. v. Nova Scotia (Community Services), 2011 NSCA 24

NOVA SCOTIA COURT OF APPEAL Citation: J.G. v. Nova Scotia (Community Services), 2011 NSCA 24 Date: 20110218 Docket: CA 337122 Registry: Halifax Between: J.G and M.G. Appellants v. Minister of Community Services and M.G. and J.G. Respondents Restriction on Publication: Pursuant to s. 94(1) Children and Family Services Act Judge: The Honourable Justice Linda Lee Oland Appeal Heard: February 17, 2011 Subject: Child Protection - Children and Family Services Act , S.N.S. 1990, c. 5.

Summary: The parents appeal the order of the trial judge that their child be placed in the permanent care and custody of the Agency for the purposes of adoption and they be denied access. Issue: Whether the judge ignored evidence or gave insufficient weight to evidence. Whether the Agency failed to provide necessary services on a timely basis. Result: Appeal dismissed. No errors in legal principle were argued. The trial judge made no palpable and overriding errors in her findings of fact. 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 4 pages.

NOVA SCOTIA COURT OF APPEAL Citation: J.G. v. Nova Scotia (Community Services), 2011 NSCA 24 Date: 20110218 Docket: CA 337122 Registry: Halifax Between: J.G. and M.G. Appellants v. Minister of Community Services and M.G. and J.G. Respondents Editorial Notice Identifying information has been removed from this electronic version of the judgment. Restriction on publication: Pursuant to s. 94(1) Children and Family Services Act Judges: Oland, Fichaud and Bryson, JJ.A.

Appeal Heard: February 17, 2011, in Halifax, Nova Scotia Held: Appeal dismissed without costs to any party, per reasons for judgment of Oland, J.A., Fichaud and Bryson, JJ.A. concurring. Counsel: Coline Morrow, for J.G. Alan Stanwick, for M.G. Peter McVey, for the Minister of Community Services Restriction on publication: Pursuant to s. 94(1) Children and Family Services Act .

Restriction on publication: Pursuant to s. 94(1) Children and Family Services Act . 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: 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 ] At the conclusion of the hearing, we announced that the appeal was dismissed and that short reasons would follow. These are those reasons. [ 2 ] By a decision dated June 28, 2010, Justice M. Clare MacLellan ordered that the child E.M., born June *, 2008, be placed in the permanent care and custody of the respondent Agency for the purposes of adoption and denied access to her parents. In reaching her decision, the trial judge referred to the provisions of the Children and Family Services Act , S.N.S. 1990, c. 5 and stated the applicable burden of proof.

Her order is dated September 8, 2010. [ 3 ] At the hearing, the mother, J.P., had admitted that she was unable to provide a plan of care for the child. The father, M.G., had sought return of the child to his care and custody and, in the alternative, that the child be placed with a relative. The parents requested that if an order for permanent care was granted to the Agency, they be granted access to the child. [ 4 ] Both parents appeal the decision of the trial judge, but raise different grounds of appeal.

In his 10 grounds, the father essentially argues that the trial judge ignored evidence or gave insufficient weight to evidence. In particular, he says that the judge erred in finding that he exhibited a chronic dependency on the misuse of alcohol and the use of drugs, resulting in him not being able to appropriately care for the child. According to the father, a proper appreciation and application of the evidence shows that he had made considerable progress. The child would not be at risk if placed in his care and it would be in the best interests of the child that she were placed in his care.

The mother submits that the Agency did not promote access between her and her daughter, and it did not facilitate the mother getting necessary services on a timely basis. She asks that if the child is placed with the father, she be granted supervised access. [ 5 ] The standard of review was set out in Children’s Aid Society of Cape Breton-Victoria v. A.M. , 2005 NSCA 58, at ¶ 26, where Cromwell, J.A., as he then was, stated: [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.

The appellate court is not, therefore, to act on the basis of its own fresh assessment of the evidence or to substitute its own exercise of discretion for that of the judge at first instance. This Court is to intervene only if the trial judge erred in legal principle or made a palpable and overriding error in finding the facts.

The advantages of the trial judge in appreciating the nuances of the evidence and in weighing the many dimensions of the relevant statutory considerations mean that his decision deserves considerable appellate deference except in the presence of clear and material error. [ 6 ] No questions of law, or extricable legal principles in relation to issues of mixed law and fact, were raised in the Notices of Appeal, the facta or the oral submissions of the appellant parents.

Having carefully reviewed the decision of the trial judge and the record, we can find no palpable and overriding error in her findings of fact or any clear and material error that would permit appellate intervention. It is apparent that the trial judge was alive to the issues, the arguments of the parties, and the applicable statutory considerations. Her decision addressed the submissions made by the parents at trial and again on appeal.

[ 7 ] We would dismiss the appeal, without costs to any party. Oland, J.A. Concurred in: Fichaud, J.A. Bryson, J.A.