J.M. v. Nova Scotia (Community Services), 2012 NSCA 29

NOVA SCOTIA COURT OF APPEAL Citation: J.M. v. Nova Scotia (Community Services) , 2012 NSCA 29 Date: 20120312 Docket: CA 384102 Registry: Halifax Between: J.M. Appellant (Applicant) v. Minister of Community Services Respondent Restriction on publication: Section 94(1) of the Children and Family Services Act . Judge: The Honourable Justice Joel E. Fichaud Motion Heard: March 8, 2012, in Halifax, Nova Scotia, in Chambers Held: Extension of time to file notice of appeal granted. Counsel: The Appellant(Applicant) J.M., in person Peter C.

McVey, for the respondent 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 ] Ms. J.M. moves for an extension of time to file her Notice of Appeal from a decision of the Supreme Court of Nova Scotia (Family Division).

That decision of Justice Forgeron ( 2012 NSSC 19 ) determined that J.M. ’ s two year old daughter J.S. be in the permanent care and custody of the Minister of Community Services further to the Children and Family Services Act , S.N.S. 1990, c. 5, as amended ( CFSA ). The judge ’ s decision was delivered orally on January 11, 2012, released in writing on January 18, 2012, and was followed by an order issued on January 24, 2012. [ 2 ] Section 49(1) of the CFSA says that the notice of appeal is to be filed within 30 days of the order.

Civil Procedure Rule 90.13(1) reiterates that the time for commencing an appeal shall be as stated in the statute. Rule 94.02 prescribes the calculation of time for the purpose of the filing deadline for a notice of appeal. The time excludes the day the period begins, weekends and days when the Prothonotary ’ s office is closed and the day the notice of appeal is to be filed. Under Rule 94.03(2), delivery after 4:30 PM counts as performance on the following day.

Under that formula, J.M. ’ s Notice of Appeal should have been filed by Thursday, February 23, before 4:30 PM. [ 3 ] J.M. submitted her Notice of Appeal to the Office of the Registrar of the Court of Appeal on February 24, 2012, a day late. The Registrar rejected the Notice as out of time. [ 4 ] J.M. moved in chambers for an extension of time to file her Notice of Appeal. She filed her Notice of Motion on February 27, 2012 and I heard the motion on March 8, 2012. The Respondent Minister of Community Services opposed the motion. [ 5 ]

Section 50 of the Judicature Act , R.S.N.S. 1989, c. 240, as amended, authorizes the Court of Appeal to enact rules that permit an extension of the time for the commencement of an appeal, notwithstanding that the time period has expired. Rule 90.37(12)(

h) allows a judge to extend the time. [ 6 ] N.L. v. Nova Scotia (Community Services) , 2010 NSCA 84 summarizes the principles that govern a judge ’ s discretion whether to extend the time for filing a notice of appeal in a child protection matter under the CFSA : [9] The general principles governing extensions were stated by Justice Saunders in Jollymore v. Jollymore , 2001 NSCA 116 , ¶ 22: [22] In this province, reference is often made to the so-called three part test for extensions of time in cases such as this.

It is said that in order to qualify for such relief the court must be satisfied that: (1) the applicant had a bona fide intention to appeal when the right to appeal existed; (2) the applicant had a reasonable excuse for the delay in not having launched the appeal within the prescribed time; and (3) there are compelling or exceptional circumstances present which would warrant an extension of time, not the least of which being that there is a strong case for error at trial and real grounds justifying appellate interference. [10] In CFSA cases, the third Jollymore principle, respecting the merits, is adjusted to conform with the statute's objective.

In Nova Scotia (Minister of Community Services) v. S.E.L. , 2002 NSCA 62 , Justice Cromwell said:

[10] In many civil cases, extensions of time are often granted quite readily especially where the delay is short and the party seeking the extension is not represented by counsel. However, extensions of time for appealing under the Act call for the consideration of at least two special factors. [11] The first is that, as in all proceedings under the Act , the best interests of the child or children are paramount. It is not a matter of doing justice simply between the appellants and the respondent, but of serving the best interests of the child who is the subject of the proceedings.

Secondly, the Act makes it clear that time limits are important so that the child's sense of time is respected. Nowhere in the Act is this more clear than with respect to appeals. The Act has an extraordinary and virtually unique requirement that appeals must be heard by the Court of Appeal in 90 days, with the possibility of a 60 day extension, from the date of the filing of the notice of appeal. The time limit for hearing the appeal runs from the filing of the notice of appeal; it follows that any extension of the time for filing the notice of appeal in effect extends the time for hearing the appeal.

In other words, extending the time for filing the notice of appeal accomplishes indirectly what the Act does not specifically provide for -- an extension of the time within which the appeal must be heard. [11] In R.K. v. Family and Children's Services of Cumberland County , 2006 NSCA 19 , after quoting this passage from S.E.L. , I said: [5] The two principles cited in S.E.L . flow from the CFSA and are complementary. The CFSA s. 2(2) states: In all proceedings and matters pursuant to this Act , the paramount consideration is the best interests of the child.

The "proceedings" in s. 2(2) include this extension application. The CFSA 's

preamble states: Children have a sense of time that is different from that of adults and services provided pursuant to this Act and proceedings taken pursuant to it must respect the child's sense of time. A delay that impacts the parent only minimally may exhaust a full formative term for an infant. So s. 49 of the CFSA strictly limits the time for appeal. Respect for the child's sense of time sustains the child's best interest. [6] In other civil proceedings the named litigants may be the only parties whose interests are relevant to an extension application.

In a disposition proceeding under the CFSA , the child's interests trump the interests of the parents and Agency. So I should first consider the children's interests in the extension application before folding in the components of the standard Jollymore test. This essentially is what was done in S.E.L. , at ¶ 12-28. To similar effect: R.K. v. Family and Children ’ s Services of Cumberland County , 2006 NSCA 19 , paras 3-6 and C.O. v.

Nova Scotia (Community Services) , 2010 NSCA 83 , paras 13-14 . [ 7 ] Jollymore ’ s first two tests are satisfied here. [ 8 ] At the date of the Justice Forgeron ’ s Order, when the appeal period began to run, J.M. was unrepresented by counsel. Clearly J.M. had the intent to appeal within the time period for filing her Notice of Appeal. J.M. has provided a copy of her application to Nova Scotia Legal Aid for legal assistance with her prospective appeal.

That application was dated February 8, 2012, within the 30 day period for filing a Notice of Appeal. [ 9 ] J.M. ’ s affidavit says that she was a day late because of an unexpected delay in making arrangements to obtain legal representation. I accept her statement and her submission that this is a reasonable excuse for a one day delay in submitting her Notice of Appeal for filing.

[ 10 ] As I noted in N.L. , in CFSA appeals Jollymore ’ s third factor, assessing the merits, is adjusted to embody the CFSA ’ s objective that the child ’ s best interests prevail. [ 11 ] The Minister cites the trial judge ’ s reasons ( 2012 NSSC 19 , paras 33-34 ) for the proposition that it is not in J.S. ’ s interest to be retuned to the care of her mother.

The Minister submits that Jollimore ’ s third factor is not satisfied and I should deny the extension. [ 12 ] I respectfully disagree with the Minister ’ s submission. [ 13 ] J.M. has pointed to aspects of the judge ’ s reasons that J.M. says are inaccurate. She says, for instance, that the judge mischaracterized the extent of J.M. ’ s counselling and efforts to improve her parenting abilities. I do not have a transcript, and am unable to assess the degree of merit in J.M. ’ s concerns. The review of the transcript to assess the merits of the grounds of appeal is for the panel of this Court at the appeal proper.

That is why s. 49 of the CFSA prescribes an appeal to the Court, and not just to a chambers judge. J.M. should have the opportunity to attempt to persuade the panel of this Court that it is in J.S. ’ best interests to maintain the relationship with her mother. [ 14 ] If J.M. ’ s appeal succeeds, the panel of this Court would have reached the conclusion that the child ’ s best interests have been served. [ 15 ] If J.M. ’ s appeal fails, then the extension to file a notice of appeal would not have prejudiced J.S. ’ interests to any significant degree.

In this respect, the circumstances of J.M. ’ s motion differ critically from those in N.L. . In N.L. , a special needs child with Fetal Alcohol Syndrome had impropitious prospects for adoption. But, as the extension decision noted (para 18), [t]here is, however, another child protection agency with a family interested in adopting a special needs child. This family has said they will attend the Special Needs Adoption Day to be held on October 30, 2010, two days after the hearing of this extension application. Because of those facts, in N.L.

I concluded: 19 If I deny this extension application, there is potential that, two days from now, the child might connect with an adoptive family. If I grant the extension, the child cannot be presented at the Special Needs Adoption Day on October 30, the next such event is April 2, 2011, and there is no other apparent prospect for adoption. As a result, I dismissed the mother ’ s motion for an extension to file a notice of appeal. [ 16 ] In this case, there is no such evidence that J.S. ’ s prospect for long term placement may hinge on whether I grant or deny the extension.

I understand from the comments of the Minister ’ s counsel at the chambers hearing that no prospective adoptive parent has been identified to date. It is too early in the process to make a reliable prediction. [ 17 ] At the chambers hearing on March 8, I provisionally scheduled the dates for filings and the hearing of the appeal. The time limit for the hearing in the Court of Appeal is constrained by s. 49(4) of the CFSA , in the child ’ s interests to have an expeditious determination. It was prudent to assign those dates while J.M. and counsel for the Minister were in the courtroom on March 8. Of course the

schedule was contingent on the assumption that, after hearing the submissions for this motion, I would grant the extension for J.M. to file a notice of appeal. Given the time allowances necessary for preparation of the transcript, filing of factums and docket availability, the earliest feasible date for the appeal hearing was June 15, 2012. This is barely within the outside extended date that is prescribed by s. 49 of the CFSA . [ 18 ] Had J.M. filed her Notice of Appeal on February 23, 2012, one day earlier and within the time limit for an appeal, the hearing date for her appeal would not have been materially sooner than June 15, 2012.

[ 19 ] Neither J.M, ’ s appeal itself, nor the brief interval between the date that a notice of appeal properly could have been filed and the filing that would follow an extension, would prejudice the potential for J.S. ’ adoption, should J.M. ’ s appeal ultimately fail. This is the distinction between J.M. ’ s motion and the facts in N.L . . [ 20 ] Jollymore ’ s third test, as adjusted for a CFSA appeal, is satisfied. [ 21 ] I allow the motion for an extension of time to file a notice of appeal without costs. J.M. shall have to March 20, 2012 to file and serve the Notice of Appeal.

At the chambers hearing, counsel for the Minister confirmed that he would accept service on behalf of the Minister and Agency. [ 22 ] The milestone dates for the appeal, as discussed in chambers, are May 1, 2012 for J.M. ’ s factum, May 15, 2012 for the Minister ’ s factum and June 15, 2012 at 2 PM for the hearing. The filing of the appeal book depends on the preparation of the transcript, which is handled by the Minister. The transcript date is uncertain.

If the transcript and appeal books cannot be prepared by mid April, it may be necessary to delay the factum dates by a further motion, which may occur either in chambers or by teleconference with the chambers judge. Fichaud, J.A.