Nova Scotia (Community Services) v. T.G., 2012 NSCA 19

NOVA SCOTIA COURT OF APPEAL Citation: Nova Scotia (Community Services) v. T.G. , 2012 NSCA 19 Date: 20120217 Docket: CA 375447 Registry: Halifax Between: Minister of Community Services Appellant v. T. G. and R. C. Respondents Restriction on publication: Pursuant to s. 94(1) Children and Family Services Act . Editorial Notice Identifying information has been removed from this electronic version of the judgment.

Judge: The Honourable Justice Linda Lee Oland Motion Heard: February 16, 2012 in Halifax, Nova Scotia, In Chambers Held: Motion for intervenor status and admission of fresh evidence is dismissed Counsel: Heather McNeill and Mark Russell, for the Association of Black Social Workers of Nova Scotia Peter C. McVey, for the appellant LouAnn Chiasson, Q.C., for T.G. Jane Lenehan, for R.C. 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.

Decision : [ 1 ] The Association of Black Social Workers of Nova Scotia (ABSW) brings a motion to intervene in the appeal from an order on judicial review. If intervenor status is granted pursuant to Rule 90.19, it then asks to put forward fresh evidence on the appeal. [ 2 ] The parties to the appeal had sought and been granted an expedited hearing. The appeal will be heard in less than five weeks, on March 22, 2012. On February 7 th , the ABSW filed its notice of motion for leave to intervene.

After hearing its motion on February 16 th , I reserved my decision. [ 3 ] For the reasons which I will develop, I would dismiss the motion. Background [ 4 ] The proceedings pertain to the placement of a young child for adoption. Almost immediately after he was born, the Department of Community Services took him into care. The respondent TG has been his foster mother since he was two days old. In May 2011, the child was placed in the permanent care and custody of the Minister of Community Services.

He is now 20 months old. [ 5 ] The child has two older siblings, both of whom were placed in the permanent care and custody of the Minister in January 2010. In August of that year, the siblings were placed with the respondent RC for the purposes of adoption. [ 6 ] One of the parents of three children is Caucasian and the second is Caucasian-African. That second parent may also be partly aboriginal. TG is Caucasian.

RC is African Canadian, her mother was bi-racial and her grandmother Caucasian. [ 7 ] On June 22, 2011 the Department decided to place the child in the home of RC for the purpose of adoption. [ 8 ] In July 2011, TG filed a Notice of Judicial Review of that decision. An injunction maintained the child ’ s placement in her home until completion of the judicial review hearing. RC was granted intervenor status. [ 9 ] The judicial review was heard by Justice R. James Williams of the Supreme Court of Nova Scotia (Family Division) over two days in September 2011.

In his reasons, he described the heart of the matter as the process that led to the decision by the Minister

and addressed the factors that courts are to consider in determining the duty of fairness in particular circumstances. He reviewed the evidence and referred to the Children and Family Services Act including s. 3(2), which sets out the circumstances including as (

g) the child ’ s cultural, racial and linguistic heritage, to be considered in determining the best interests of a child, and s. 47(5) which reads: 47

(5) Where practicable, a child, who is the subject of an order for permanent care and custody, shall be placed with a family of the child's own culture, race or language but, if such placement is not available within a reasonable time, the child may be placed in the most suitable home available with the approval of the Minister. In his decision, the judge gave his views as to the interplay between s. 3(2) and s. 47(5).

He stated that the overriding policy consists of the factors in s. 3(2) which includes the s. 47(5) consideration. [ 10 ] The judge concluded that the process chosen by the Department in considering the two alternative adoption plans had violated the principles of fairness and natural justice. He quashed the June 22, 2011 placement decision and directed that a fresh panel decide the child ’ s placement for adoption. His oral decision was given on December 5, 2011.

His order followed on December 21 st , and his written decision which was released on January 20, 2012 is reported as 2011 NSSC 497 . [ 11 ] The Minister appeals the Order on Judicial Review. His Notice of Appeal sets out several grounds of appeal. Among other things, he submits that the judge erred in his

interpretation and application of s. 47(5) of the Act , the duty of procedural fairness, and the right of natural justice. [ 12 ] All the parties agreed that it was imperative that the appeal be heard quickly. On February 2, 2012 the appeal was set down for a full day hearing on March 22 nd . The Minister was directed to file his factum by February 13 th and each of the respondents hers by February 27 th . [ 13 ] On February 7 th , the ABSW filed its notice of motion for leave to intervene. The Minister and RC did not oppose the motion; TG did.

After hearing counsel for ABSW and all parties to the appeal on February 16 th , I reserved my decision. The Motion [ 14 ] The ABSW is a volunteer charitable organization consisting of black social workers and human service workers throughout Nova Scotia. It was actively involved in the development of the current Act, including s. 3(2)(

g) and s. 47(5) . [ 15 ] The ABSW seeks intervenor status and, if granted, permission to put forward fresh evidence on the appeal. Its motion was supported by the affidavit of Veronica Marsman, the President of this professional organization. One of its exhibits provides the ABSW ’ s current Position Statement on placement issues, which reads in part: ABSW subscribes to the belief that the African Nova Scotian child should grow in a safe, secure environment with parents and care givers who are able to naturally transmit to that child a positive sense of culture, identity and well being.

ABSW opposes child welfare practices of trans-racial adoption and foster placement of African Nova Scotian children in white homes. ABSW adheres to the position that African Nova Scotian children be placed in African Nova Scotian homes. This practice best preserves the child’s cultural and racial identity, increasing their ability to develop to their fullest potential. [ 16 ] Ms. Marsden ’ s affidavit deposes:

11. If granted intervenor status, on behalf of ABSW, I will make submissions with respect to the law and literature as it applies to theissues of transracial placements. . . . 17. The ABSW can speak to issues of cultural alienation, identity confusion, racism, culture and history of African people, as it relatesto placement of black and bi-racial children into white homes. 18. I believe that the ABSW has a unique interest that neither the Minister of Community Services nor either of the Respondents canprovide the court. 19.

I believe the Minister of Community Services’ administrative point of view is not necessarily compatible with the position of theABSW. I believe the Minister of Community Services’ position on cultural identity has often been incongruent with those of the ABSW,and the ABSW has lobbied to hold the Minister accountable in order to protect ABSW’s mandate from being moved to the periphery bysocial agencies. 20.

I believe that the ABSW is in the best position to independently assist the court to understand fully the issues of transracialplacements and the impacts of placing children affected in white homes. [17] The ABSW submits that it is in a unique position to speak to the significance of s. 3(2) and 47(5) of the Act as they relate toissues of cultural and racial identity with respect to the placement of black and bi-racial children into white homes.

It argues that none ofthe other parties can speak to the broader interests of African Nova Scotians pursuant to that legislation. [18] At the hearing of the motion, I sought clarification as to the fresh evidence that ABSW would be seeking to adduce at theappeal. According to ABSW, it would not include any affidavit evidence. It would consist of legal cases and authorities regardingtransracial placements, and literature on that subject, which would be attached to or incorporated within its written submissions.

ABSWcould not identify with any precision what, or how extensive, the literature on transracial placements would be. Analysis [19] The motion is brought pursuant to Rule 90.19 which gives a judge a discretion whether to allow an intervention. In Logan v.WCAT, 2006 NSCA 11, Fichaud, J.A. spoke of that discretion: [8] The authorities have described a flexible menu of criteria to govern that discretion. I refer to Justice Cromwell's decision in R. v.Regan (1999), 1999 NSCA 7 , 174 N.S.R. (2d) 1 (C.A.) at ¶ 29-53, and Justice Bateman's decision in Nova Scotia (AttorneyGeneral) v.

Arrow Construction Products Ltd. (1996), 1996 NSCA 4 , 148 N.S.R. (2d) 392 (C.A.) at ¶ 5. Generally, anintervention should (1) target the parties' existing lis and (2) accommodate the process of the existing appeal while (3) augmenting andnot just duplicating the parties' submissions or perspectives to assist the court's consideration of the parties' issues. ... [20] In decisions such as R. v. Fraser, 2010 NSCA 106 at ¶ 8-9 and R. v. Ross, 2012 NSCA 8 at ¶ 12, this court has approved thefollowing passage from John Sopinka & Mark E.

Gelowitz, The Conduct of an Appeal, 2nd ed., (Canada: Butterworths, 2000), at pages258-59: In considering an application to intervene, appellate courts will consider: (1) whether the intervention will unduly delay the proceedings;(2) possible prejudice to the parties if intervention is granted; (3) whether the intervention will widen the lis between the parties; (4) theextent to which the position of the intervenor is already represented and protected by one of the parties; and (5) whether the interventionwill transform the court into a political arena.

As it is a matter of discretion, the court is not bound by any of these factors in determiningan application for intervention but must balance these factors against the convenience, efficiency and social purpose of moving the caseforward with only the persons directly involved in the lis.

[ 21 ] If intervention is granted, there should be no prejudice to the parties by reason of any delay of the hearing of the appeal of the decision on judicial review scheduled for March 22 nd . The ABSW has agreed to file its factum by February 27 th , the deadline for the filing of the respondents ’ facta. [ 22 ] I am not persuaded that allowing the ABSW to intervene would likely lead to additional motions to intervene at the appeal which would result in delay and prejudice. According to the Minister, the Mi ’ kmaq Family and Children Services has had notice of the proceedings concerning this child.

No individual or group has advised the Minister that he or it wishes to be heard on s. 47(5) at the appeal. [ 23 ] The decision under appeal is a decision on judicial review wherein the judge analysed the process the Minister undertook to decide the child ’ s placement for the purposes of adoption. The Minister directed that the placement of a bi-racial child be placed with a person of African descent. At the hearing of the motion, the Minister expressed how, in her view, she made no error in law in her

interpretation of the Act and stated that the whole appeal decision is going to ride on s. 47(5). She says that what this court decides will either re-iterate or change the Minister ’ s adoption policy and its application. It is clear from her submissions that the Minister will argue at the appeal that that provision is directive and not, as the judge concluded, governed by the best interest of the child analysis in s. 3(2). [ 24 ] In my opinion, the position of the proposed intervenor in this regard is essentially the same as that of the Minister.

The ABSW takes the same view, namely, that s. 47(5) should be read as directive. Accordingly, its position is already highly represented and protected by a party to the appeal. [ 25 ] Moreover, the submissions and the literature the ABSW wishes to adduce as fresh evidence might assist the court if the appeal of the decision on judicial review pertained to the merits of the placement of the child. But it does not.

The issue that the ABSW wishes to address as intervenor on the appeal concerns the paramountcy of s. 3(2) or 47(5) in the context of the process undertaken by the Minister in determining placements for adoption. In this context, submissions on the law and literature on the effect of transracial placements are not relevant. [ 26 ] I am also troubled that just what material the ABSW wishes to adduce as fresh evidence, and its extent, could not be identified at the hearing of its motion.

Any party that might want to do so may well have insufficient time, after receipt of those particulars, to challenge the expertise of any author or to provide rebuttal at the appeal. It was not suggested that a full day for the hearing would be insufficient were the ABSW permitted to intervene. However, this assumes no difficulty or controversy with the material, yet unknown to any of the parties, that ABSW would seek to introduce.

Therefore, the possibility that admissibility issues may arise which would have to be dealt with at the hearing and would reduce the time available for argument on the merits of the appeal remains.

Particularly where we are dealing with an expedited hearing, these uncertainties persuade me that the granting of intervenor status would be procedurally unsound. [ 27 ] In all the circumstances, including the expedited hearing, the nature of the appeal of the decision on judicial review, the duplication by the proposed intervenor of the Minister ’ s position on the issue concerning s. 3(2) and s. 47(5) of the Act , the lack of relevance of the submissions and material proposed by the ABSW in the context of this appeal, and the uncertainties surrounding the fresh evidence it wishes to introduce, I would exercise my discretion and dismiss the motion for intervenor status.

I would award the respondent T.G. costs of $500 inclusive of disbursements. Oland, J.A.