M.K. v. Nova Scotia (Community Services), 2015 NSCA 69

Nova Scotia Court of Appeal Citation: M.K. v. Nova Scotia (Community Services) , 2015 NSCA 69 Date: 20150707 Docket: CA 438899 Registry: Halifax Between: M.K. Appellant v. Minister of Community Services Respondent Restriction on Publication: 94(1) of the Children & Family Services Act Editorial Notice: Birthdates have been removed from this electronic version of the judgment. Judge: Farrar, J.A. Motion Heard: June 25, 2015, in Halifax, Nova Scotia in Chambers Held: Motion dismissed. Counsel: Appellant in person Peter C.

McVey, Q.C., for the respondent Restriction on publication: Pursuant to s. 94(1) Children and Family Services Act , S.N.S. 1990, c. 5. 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 ] M.K. appeals from the decision of Judge Jean Dewolfe of the Family Court placing M.K.’s two children, A., born November […], 2013 and C, born November […], 2014, in the permanent care and custody the Minister of Community Services and denying access to M.K. [ 2 ] M.K. applies for a stay of execution of the trial judge’s order. The effect of such a stay would be to maintain access visits for M.K. with A. and C pending appeal. [ 3 ] For the reasons that follow I would dismiss M.K.’s motion for a stay.

Background (Note: This factual background is taken from the affidavits filed by the respondents and M.K.’s submissions. The facts, as sworn to in

the affidavits, was not contested.) [ 4 ] Immediately after his birth A. was taken into care for his own protection. [ 5 ] A. was born showing symptoms of drug withdrawal. A drug test performed at birth determined there was methadone and marijuana in his system.

He had light sensitivities, had to be cared for in a darkened, quiet room following birth, and presented as in pain even if routinely handled by nursing staff. [ 6 ] On November 12, 2013, a child protection proceeding was commenced concerning A., alleging substantial risk of physical harm and of emotional harm. [ 7 ] C. was also immediately taken into care after his birth for his own protection. [ 8 ] C. also exhibited symptoms of withdrawal from methadone at birth, had to be kept in hospital for observation, and was noted in his first month of life to suffer from involuntary arm movements and twitching. [ 9 ] On November 19, 2014, a child protection proceeding was initiated in relation to C., alleging him to be at substantial risk of physical harm, including physical harm that may be caused by chronic and serious neglect. [ 10 ] A Protection Hearing (Trial) was held in relation to A. in January-February 2014.

A. was found to be in need of protective services as alleged. [ 11 ] The order and decision dated February 10, 2014, were not appealed. [ 12 ] On April 15, 2014, the Minister made application for Permanent Care of A. [ 13 ] On May 6, 2014,the Disposition Hearing in relation to A. was commenced but not completed. [ 14 ] Further trial dates were scheduled for the summer of 2014, but later removed from the court docket on the belief that the appellant planned to consent to the Minister’s application for permanent care and custody of A. [ 15 ] However, the appellant did not consent to an Order for Permanent Care and Custody in relation to A., but rather discharged her lawyer.

As a result, on November 19, 2014, new trial dates were set with her new legal counsel. [ 16 ] In the meantime, C. had been born and a child protection proceeding commenced with respect to him. [ 17 ] On February 17, 2015, C. was found by the trial judge to be in need of protective services (substantial risk of physical harm, including physical harm that may be caused by chronic and serious neglect).

The protection finding in relation to C. was not contested by M.K. [ 18 ] On February 17, 2015, the Application of the Minister involving C. was consolidated with the Application involving A., under Family Court Rule 16.02. [ 19 ] On March 5, 2015, the Minister also made application for an Order for Permanent Care and Custody in relation to C. [ 20 ] On March 16, 2015, a trial was held in relation to the two, consolidated applications for Orders for Permanent Care and Custody. [ 21 ] On March 16, 2015, on the first day of the trial, M.K. sought to fire her new legal counsel, Ms.

Jennifer Barnes. [ 22 ] In light of the almost one-year delay in hearing the Minister’s application regarding A., the trial judge would not release the appellant’s lawyer. [ 23 ] Instead, M.K. was permitted to ask her own questions of witnesses and make her own submissions, in addition to those made by her lawyer. [ 24 ] M.K. is 32 years of age and the mother of six children, none of whom are in her care or custody. Child protection agencies have been involved with her and her children since February 2002, addressing concerns including the following: (

a) substance abuse (

b) domestic violence (

c) involvement in prostitution (

d) participation in criminal activity, and (

e) otherwise inadequate parenting. [ 25 ] M.K. has been diagnosed as suffering from Substance Dependence, and engages in behaviours reflecting a diagnosis of Borderline (Cluster B), Antisocial, Schizotypal, and Paranoid personality disorders. [ 26 ] She herself suffered emotional abuse, physical abuse, sexual abuse, emotional neglect, and physical neglect in the “severe” range as a child.

[27] She now presents with emotional lability, poor self-concept and a tendency to be self-destructive. [28] These patterns of behavior are reflected in incidents of alcohol and drug abuse, aggression, criminality and a suicidal gesture, allwithin the past five months. [29] Extensive remedial services have already been provided but have failed to remedy the child protection concerns. [30] For change to occur, long-term intervention, beyond the legislative time limits for disposition review regarding such youngchildren, would be required. [31] The appellant’s access visits with her children were limited during the lower court proceeding to weekly visits, fully supervisedby staff of the Minister. [32] The appellant attended at the agency office on January 28, 2015, smelling of alcohol, despite being scheduled for an accessvisit. [33] On May 6 and 19, 2015, the appellant presented with speech that sounded slurred or pressured, broken, choppy, and did not flowwell, suggestive of impairment. [34] All regularly scheduled access visits ended on March 24, 2015.

A final, “good-bye” visit took place on June 4, 2015. [35] Neither child has ever lived in the day-to-day care of the appellant. [36] The Minister’s plan is to have the children expeditiously adopted together. [37] The appellant seeks a stay and ongoing access on the following evidence: (

a) the children really enjoy the visits; (

b) the time spent is very loving; (

c) they spend the time together cuddling, playing, reading and singing; (

d) the children are both very young; (

e) the appellant opines that “the bond is very strong”; (

f) she submits that continued access will “ensure the bond stays strong”; (g) 18 month old A. calls her “mommy”; (

h) She wishes to see 6 month old C. “gain more of a bond”. Issue [38] The issue is whether M.K. has established the requirements for a stay. Analysis [39] A combination of s. 49(3) of the Children and Family Services Act, S.N.S. 1990, c. 5 (CFSA), s. 41(

e) of the Judicature Act,R.S.N.S. 1989, c. 240 and Rule 90.41(2) of the Civil Procedure Rules permits a single judge of this Court to grant a stay. [40] In Fulton Insurance Agency v. Purdy (1991), (NS CA), 100 N.S.R. (2d) 341 (C.A.), Justice Hallett set outthe well-known principles which govern the exercise of discretion in granting a stay. A stay may be granted if the applicant shows (

i) anarguable issue for the appeal; (ii) that there would be irreparable harm if the stay were denied and that the balance of conveniencefavours the applicant; or (iii) there are exceptional circumstances. [41] However, in child protection cases, special principles infuse the Fulton test, Justice Fichaud in D.M.F. v. Nova Scotia(Minister of Community Services), 2004 NSCA 113 reviewed the authorities and summarized the test as follows: 13 Although the Fulton test provides the format for analysis, under s. 2(2) of the Act in a child protection case the overriding factor isalways the best interests of the child.

This reformulates the "irreparable harm" and "balance of convenience" branches of the Fulton test.The standard civil tests of irreparable harm to the applicant and balance of convenience between applicant and respondent are sterile in achild custody case. It is not the irreparable harm to the applicant (whether parent or Agency) or the balance of convenience between thelitigants (parent and Agency) which governs. Rather the focus is on the child. It is highly unlikely that harm to the child would becompensable in money.

So the "irreparable" concept recedes. [Underlining mine] [42] Therefore, to grant the motion I must be satisfied the appellant has raised an arguable issue and there are circumstances of aspecial and persuasive nature that would warrant the granting of the stay. In other words, I would have to be satisfied that thecircumstances here are such that the best interests of the children would be served by a stay. Application of the Principles

[ 43 ] M.K. is self-represented and has raised three grounds of appeal in her Notice of Appeal. They are: 1. Court’s Judgement constituted abuse of Judicial Authority 2. Court Improperly permitted evidence that required expert testimony, but instead permitted lay testimony providing improper opinion. 3. Court improperly promised its decision on non-contemporaneous evidence in issuing its ruling terminating appellant’s parental rights. 4. Ineffectiveness of Counsel. [ 44 ] I am satisfied that at least one of the grounds of appeal is arguable. [ 45 ] It is not necessary for me to say anything further on this issue.

The merits will be for the panel. [ 46 ] I will now turn to consideration of the irreparable harm and balance of convenience test which, as I have noted above, distills into an analysis of whether denial of the stay would harm the child and, if so, whether the stay’s issuance or denial would better serve or cause harm to the children’s interests Nova Scotia (Community Services) v.

B.F. , 2003 NSCA 125 , ¶20). [ 47 ] The burden rests with the applicant to show a risk of harm to the child, produced by the combination of the continuing force of the order under appeal and the delay foreseen until the result of the appeal is known ( B.F., supra , ¶19). [ 48 ] This evidential burden was explained by Bateman, J.A. in Nova Scotia (Minister of Community Services) v. J.G.B. , 2002 NSCA 34 : ... access should only be reinstated [pending appeal] if consistent with the best interests of the children. There is an onus on the applicant to so demonstrate.

The question is not simply one of balancing the convenience between the two parties. (¶17) [ 49 ] The quality of the evidence is such that it must be of a “special and persuasive nature”. ( B.F., supra , ¶13). [ 50 ] Despite M.K.’s valiant efforts to present her case, I am not satisfied that the evidence rises to that level. [ 51 ] M.K. acknowledges, in her written submission, the following: ... I have had very minimal contact with my boys since their births. ... Since the decision was made for [permanent care [on March 23, 2015] I have not seen them at all.

I was not given a chance to show I can take care of my boys. [ 52 ] Before me she admitted that she could not say that the boys would suffer harm if a stay was not granted. Her submissions, not surprisingly, were to the effect that she wished to maintain contact with the children so that she could bond with them as their mother. [ 53 ] This is not sufficient to persuade me to issue a stay of a no access order of a judge of the Family Court who has made that decision after a careful weighing of the evidence after trial. As Mr.

McVey, on behalf of the Minister, points out in his oral and written submissions, to allow a stay on the evidence and arguments submitted in this case would amount to a presumption of harm to the children without evidence. I am not prepared to do so. Conclusion [ 54 ] The motion for a stay is dismissed. Farrar, J.A.