Lagace v. Mannett, 2012 NSSC 346

SUPREME COURT OF NOVA SCOTIA(FAMILY DIVISION) Citation: Lagace v. Mannett, 2012 NSSC 346 Date: 20120517 Docket: 1201-062738; SFHD-059212 Registry: Halifax Between: Matthew Howard Lagace Applicant v. Tammy Anne Mannett Respondent LIBRARY HEADING Judge: The Honourable Justice Elizabeth Jollimore Heard: May 17, 2012

Summary: Motion by Minister of Community Services to intervene in a variation application between parents pursuant to the Divorce Act . Motion dismissed. Key words: Family, Civil Procedure Rules, amicus curiae , intervenor Legislation: Civil Procedure Rules 35.10, 59.40(2) THIS INFORMATION SHEET DOESN ’ T FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Lagace v. Mannett, 2012 NSSC 346 Date: 20120517 Docket: 1201-062738; SFHD-059212 Registry: Halifax

Between: Matthew Howard Lagace Applicant v. Tammy Anne Mannett Respondent Judge: The Honourable Justice Elizabeth Jollimore Heard : May 17, 2012 Counsel: Lindsay E. McFadden for Matthew Lagace Tammy Mannett on her own behalfMay S. Knox for the Minister of Community Services By the Court: Introduction [ 1 ] On May 17, 2012 I heard a motion by the Minister of Community Services, made pursuant to Civil Procedure Rule 35.10. The Minister sought intervenor status to be added as amicus curiae in the private custody litigation between Matthew Lagace and Tammy Mannett.

I gave an oral decision that day dismissing the Minister ’ s motion. What follows is a clearer expression of my reasons. This motion ’ s context [ 2 ] Where parents are litigating issues relating to their child and the Department of Community Services is, or has been, involved with the family, it ’ s common that one party will have the court issue a sub peona for an employee of the Department, requiring the employee to attend the hearing to testify about the Department ’ s involvement. The sub peona usually requires the employee to bring the Department ’ s file relating to the family.

The Minister ’ s motion arises in somewhat different circumstances. [ 3 ] Mr. Lagace applied in June 2011 to vary the terms of a Corollary Relief Judgment relating to custody, access and child support . [ 4 ] The Department of Community Services had been involved with the family in the past and it became involved with the family again in March 2012 as the result of a police referral. [ 5 ] In January 2012, Mr. Lagace and Ms. Mannett participated in a conference to organize the hearing, which was scheduled for May 17 and 18, 2012. At the conference, filing deadlines were fixed: Mr.

Lagace was ordered to file the materials in support of his application on or before April 5, 2012. [ 6 ] According to the Minister, around March 29, 2012 a “ decision was made to support the father ’ s application ” . At that point, Mr. Lagace had taken no steps to issue a sub peona for any employee of the Department, though his materials were to be filed just one week later. [ 7 ] The Minister filed its motion two days before the hearing was scheduled to begin and the motion was argued at the start of the hearing. Ultimately the hearing was adjourned on Ms.

Mannett ’ s motion. (The decision with regard to the variation application is reported at Lagace v. Mannett , 2012 NSSC 320 . ) [ 8 ] The day before the hearing was to begin, Mr. Lagace caused the court to issue sub peonas for a Department employee and for the Minister ’ s counsel. Each sub peona required the production of documents. The sub peona for the Minister ’ s counsel and her file was withdrawn after I expressed my concern that production of Ms. Knox ’ s file would jeopardize the confidentiality of her relationship with her client. Mr.

Lagace said that he caused the sub peonas to be issued to ensure that, if the Minister ’ s motion was dismissed, its employee ’ s evidence would still be available.

Civil Procedure Rule 35.10 [9] Civil Procedure Rule 35.10(1) provides that a non-party may move for an order to join in an application as an intervenor. Where Iam satisfied that the intervention won’t unduly delay the proceeding or cause other serious prejudice to a party, I may grant an orderjoining an intervenor, if one of certain circumstances exists. The circumstances are enumerated in Civil Procedure Rule 35.10(2) asfollows: (

a) where the proposed intervenor has an interest in the subject of the proceeding; (

b) where the proposed intervenor may be adversely affected by the proceeding’s outcome; (

c) where the proposed intervenor ought to be bound by a finding or a determination of law or fact in the proceeding; or (

d) where the intervention is in the public interest. The Minister’s motion [10] Without explicitly framing its motion to address the requirements of Rule 35.10(2), the Minister’s motion was advanced on thebasis of the public interest. There was no argument that the Minister had an interest in the variation application, that the Minister mightbe adversely affected by the outcome or ought to be bound by a finding made in the variation proceeding.

The Minister has a specificinterest in protecting children from harm, but the statutory regime for pursuing this interest is the Children and Family Services Act,S.N.S. 1990, c. 5. [11] The Minister argues “the role of amicus curiae is to bring to the attention of the court, information or arguments that are not beingpresented by any other party”. Here, though the Minister’s employees had been involved with this family, no steps were taken to arrangefor evidence of that involvement to be brought to my attention.

The public interest to be served is that of ensuring that I have all relevantevidence before me in determining what parenting arrangements are in Logan’s best interests. The Minister was explicit that its evidenceshould be considered “to affect placement of the child in the primary care and custody of” Mr. Lagace. [12] In Children’s Aid Society of Halifax v. C.V., 2005 NSCA 113, at paragraph 26, Justice Oland stated that “The appointment of anamicus curiae is intended to give the panel hearing the appeal the fullest argument possible on any arguable ground of appeal.” In NovaScotia (Community Services) v.

A.A., 2009 NSSC 206, then-Justice O’Neil appointed amicus curiae to assist the court. He said, atparagraph 28, the amicus curiae “is not to represent Ms. A., he is not to represent the Minister, he is to assist the court in dealing with adifficult issue, namely whether Ms. A. is so affected by mental illness that she cannot represent herself in the subject proceeding.” Inthese cases, both child protection proceedings, the parent was unrepresented and amicus curiae was appointed to provide the court withassistance that would otherwise not be available. [13] A different circumstance existed in D.L.P. v.

D.M.P., (NS SF): a permanent care and custody order had beengranted in a child protection application and the child was placed with its maternal grandparents. In the child protection proceeding therewas an order for no access by the mother, D.L.P., to the child. The mother later applied for unsupervised access to the child. Therespondents, the grandparents with whom the child had been placed, agreed. D.L.P. presented Justice Dellapinna with a consentvariation order.

The Minister of Community Services asked to become amicus curiae to provide Justice Dellapinna with information thatotherwise would not be available to him, by virtue of the parties’ consent. This request was granted. [14] In all of these cases, an amicus curiae appointment was made to assist the judge or judges by providing information or argumentthat would not otherwise be available. [15] Noting the existence of the sub peona for an Agency worker, I asked the Minister whether there would be any greater advantage tome if the Minister was amicus curiae rather than having its employee as a witness.

I was told “Offhand, it would appear that the sametype and quantity and quality of information would be the same being presented to the Court”. Where no more or better evidence isavailable by adding the Minister as amicus curiae, there is no public interest in making this appointment. [16] Mr.

Lagace argued that granting the Minister the status of an intervenor is “a better way to put the information before the Court”because the Minister’s employee would provide an affidavit in advance of the hearing, rather than offering evidence through directexamination. [17] Civil Procedure Rule 59.40(2) provides that “The hearing judge may direct that the hearing be conducted on testimony rather thanaffidavit evidence, or that it be conducted partly on testimony.” At the conference, I directed that the hearing be conducted on affidavitevidence.

This direction is fairly common in the Family Division in the Halifax Regional Municipality. The witnesses who appear byvirtue of sub peonas are usually somewhat independent of the parties: they are, for example, daycare workers, teachers, doctors,counsellors, police officers and employees of the Department of Community Services. The party who seeks their testimony cannotobtain an affidavit from them, so they offer viva voce testimony. [18] The Minister’s employee has already filed an affidavit.

This wouldn’t typically have happened, but it has happened here: theaffidavit was filed to support the motion to be added as an intervenor. As a result, it isn’t necessary to join the Minister so the parties canhave this evidence in advance. [19] According to the Minister, “most people don’t want the Minister of Community Services involved” in their private litigation. Thefeeling is mutual: the Minister acknowledged that it’s unusual to seek to intervene in private custody litigation.

[ 20 ] Where parents privately contest custody or access, the Minister doesn ’ t want litigants to make repeated quibbling complaints to child welfare agencies to bolster their claim for custody or access. But for the unusual situation where Mr. Lagace had taken no steps to arrange for evidence from the Department of Community Services, the Minister would not have made this motion. [ 21 ] The Minister ’ s mandate is not to become a proxy for one parent in private litigation.

Where there are other means available to bring evidence from the Minister ’ s employees to me, it isn ’ t in the public interest to divert (or distract) the Minister ’ s staff from their core purpose. [ 22 ] I find it is not in the public interest that I appoint the Minister of Community Services as intervenor in this variation application. Where there is no circumstance under Civil Procedure Rule 35.10(2) that forms the basis for the Minister ’ s motion, I need not consider the overarching issues of possible delay or serious prejudice. [ 23 ] There has already been some disclosure of Agency materials.

If no further materials are accumulated, there will be no further disclosure and counsel for the Minister will write to the parties stating that there is nothing further to disclose. If further materials are amassed, one week before the adjourned date for the hearing, the Minister will provide each parent with a complete copy of the Agency ’ s file. _________________________________ Elizabeth Jollimore, J.S.C. (F.D.) Halifax, Nova Scotia