K.B. v. Nova Scotia (Community Services), 2013 NSCA 23

NOVA SCOTIA COURT OF APPEAL Citation: K.B. v. Nova Scotia (Community Services) , 2013 NSCA 23 Date: 20130214 Docket: CA 408482 Registry: Halifax Between: K.B. and B.C. Applicants/Appellants v. Minister of Community Services Respondent Restriction on publication: Pursuant to s. 94(1) Children and Family Services Act Judge: The Honourable Chief Justice J. Michael MacDonald Motion Heard: February 14, 2013, in Halifax, Nova Scotia, in Chambers Held: Motion to adjourn the appeal is dismissed without costs. Counsel: David A. Grant, for the appellant, KB BC, applicant/appellant 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.

Decision (Orally) : [ 1 ] The appellant parents are appealing a permanent care order involving their two children. The appeal is set to be heard tomorrow morning, February 15, 2013. This morning I am asked to adjourn the appeal to allow the Appellant mother KB time to produce proposed fresh evidence. Specifically she hopes to secure a supplementary medical report that she would then ask this Court to consider in the appeal proper. [ 2 ] At the close of argument, I denied the motion with reasons to follow. Here then are my reasons. BACKGROUND [ 3 ] The Minister offers this accurate

summary of the facts in her pre-motion brief: 7. There was a previous proceeding under the Children and Family Services Act in relation to the Appellant [KB]’s daughter, [WB], born April [...] 1998. That proceeding took place between December 10, 2009, and May 25, 2011. It was in the context of that proceeding that the Appellant, [KB], was first diagnosed with Borderline Personality Disorder in December 2010. 8. However, regarding the current proceeding, on May 4, 2011, the children, [TB] and [MB], were born. They were premature and remained in hospital until May 26, 2011. 9.

On May 17, 2011, the Agency commenced a Protection Application alleging the children to be at substantial risk of physical and emotional harm. 10. On May 24, 2011, the Court granted in Interim Order providing that the children shall remain in the interim care and custody of [KB], subject to the supervision of the Agency and on terms and conditions. 11. On August 9, 2011, the Court found the children in need of protective services by consent and admission, the finding being that the children were at substantial risk of physical and emotional harm. 12.

On August 26, 2011, the children were taken into care by the Agency. The Appellant [KB] had left her two, three month old children alone at home while she went out shortly before midnight to gamble and drink. 13. On August 30, 2011, the Trial Judge varied the terms of the Protection Order, placing the children in the interim care and custody of the Agency. 14. On October 25, 2011, the Court granted an Order for Temporary Care and Custody in relation to the children, commencing the twelve month time limit for disposition review under Section 45(1) (

a) of the Children and Family Services Act . 15. On January 10, 2012; March 20, 2012; April 10, 2012; May 1, 2012; June 28, 2012; August 21, 2012; September 4, 2012; and September 18, 2012, the Court granted further Orders for Temporary Care and Custody upon review. 16. However, on March 15, 2012, the Agency filed an Agency Plan for the Children’s Care seeking an Order for Permanent Care and Custody.

17. A Trial was held regarding the Agency’s application, over four days commencing June 27, 2012, and ending on September 20, 2012. 18. On September 20, 2012, the Trial Judge rendered an oral Decision, later reduced to writing, granting Orders for Permanent Care and Custody in relation to the children. 19. On October 26, 2012, the Appellants filed a Notice of Appeal in relation to these Orders. 20. The Appellant’s Notice of Appeal alleges five (5) errors, namely: a. The Trial Judge erred in being satisfied that all relevant provisions of the Children and Family Services Act were complied with by the Agency; b.

After the children’s uncle from Alberta withdrew his plan of care[,] no other family placements were sought or considered. An uncle from Nova Scotia was in attendance for the trial. c. There is no evidence that the agency worked with the father, [BC], taking reasonable measures as described in the Children and Family Services Act . d. There is no evidence that the father, [BC], failed or refused services, or that less intrusive meansures [sic] would be inadequate to protect the children while in his care. e. After the children were taken into care the agency ceased working with the mother, [KB].

There was no follow-up or any acknowledgement by the agency of the significant and sustainable life changes made by the mother after the apprehension of the children. 21. On November 8, 2013, the Honourable Justice David Farrar set January 18, 2013, as the deadline for the Appellants to file Fresh Evidence. 22. On January 3, 2013, the Honourable Justice Peter Bryson extended by consent the deadline to January 28, 2013, for the Appellants to file Fresh Evidence. 23. On January 28, 2013, the Registrar extended by consent the deadline to January 30, 2013, for the Appellants to file Fresh Evidence. 24.

On January 31, 2013, the Appellants filed their Fresh Evidence and Factum. 25. On February 1, 2013, the Respondent Minister filed her Factum in reply. 26. On February 7, 2013, the Appellants filed a Motion to Adjourn the Appeal Hearing. 27. The evidence the Appellants wish to have considered on the Adjournment Motion and as Fresh Evidence is as follows: a. A Solicitor’s Affidavit stating that reports have been received by the Appellant, [KB], from Gary Neufeld and Dr. Brian Steeves, questioning her diagnosis with Borderline Personality Disorder;

b. A one paragraph letter from Dr. Brian Steeves dated January 21, 2013, stating in part: “I have serious doubts about the diagnosis of borderline personality disorder and we are currently seeking another psychiatrists [sic] opinion for an updated assessment and diagnosis.” c. A report of Gary Neufeld dated January 28, 2013, addressed to the Appellant, [KB], including a “comment on your diagnosis with Borderline Personality Disorder”. He notes changes he has observed in the Appellant’s behaviours, some of which pre-date the Trial Judge’s Decision and about which he has already testified. [ 4 ] As noted in the Minister ’ s

summary, the Appellant KB, in support of her motion, has filed a solicitor ’ s affidavit dated February 7, 2013 with attached a January 21, 2013 report from family Dr. Brian Steeves and a January 28, 2013 report from social worker Mr. Gary Neufeld. Both professionals question KB ’ s Borderline Personality Disorder diagnosis. To this end, Dr.

Steeves proposes securing a further psychiatric assessment and report to challenge this diagnosis. [ 5 ] At the hearing this morning, the Minister indicated that if the matter were to proceed tomorrow as scheduled, she would not object to KB attempting to introduce, as further proposed fresh evidence, her February 7 th solicitor ’ s affidavit with attached reports. In other words, while the Minister objects to this (or any of the proposed) fresh evidence being introduced, she would not challenge KB ’ s late hour attempt to do so.

Of course, whether the panel assigned to hear this appeal would, at this stage, accept submissions on this material would be for it to decide. [ 6 ] The minister ’ s main objection therefore involves the proposed psychiatric assessment and report. ANALYSIS [ 7 ] Even if this Court were inclined to accept the proposed new psychiatric assessment as fresh evidence, an adjournment to secure it is, at this late stage, simply out of the question. I say this for several reasons. [ 8 ] Firstly, this appeal must be heard within six weeks from now. We have no choice.

Nova Scotia ’ s Children and Family Services Act, S.N.S. 1990, c.5 , commands that child protection appeals be processed within 90 days of filing and in any case no later than 150 days. This appeal was filed on October 26, 2012 making March 25, 2013 the last possible day to hold this appeal.

It is completely unrealistic to suggest that, within six weeks, KB can find a psychiatrist, have this psychiatrist review this complex file, arrange an assessment, prepare a report, share the report with the Minister and allow the Minister time to respond. [ 9 ] Secondly, we have no idea what this proposed assessment will produce.

All we have now is a challenge to the diagnosis with no idea what the yet unknown psychiatrist may conclude. [ 10 ] Thirdly, even if this proposed report disputed the Borderline Personality Disorder diagnosis, it is questionable how relevant it would be to the merits of the appeal (assuming that the panel would even entertain this evidence). [ 11 ] Finally, there are other practical complications. Specifically, there is a panel ready to hear this case tomorrow. They are briefed and prepared. Should this matter be adjourned, new dates would have to work around the schedules of these three assigned judges.

Furthermore, our upcoming docket is full up to and including March 25, 2013. CONCLUSION [ 12 ] For all these reasons, the motion to adjourn is dismissed without costs.

MacDonald, C.J.N.S.