Nova Scotia (Community Services) v. EL, 2020 NSSC 193

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Nova Scotia (Community Services) v. EL , 2020 NSSC 193 Date: 20200623 Docket: SFH-CFSA 113064 Registry: Halifax Between: Minister of Community Services Applicant v. E.L. and D.M. Respondents AND Between: D.M. Petitioner v. E.L. Respondent Judge: The Honourable Justice Elizabeth Jollimore Heard : June 23, 2020

Summary: Minister asked to end child protection application. Mr. M asked to vary an interim order under the Divorce Act so he would have interim parenting and not have to pay child support. Mother had notice and failed to appear though she emailed, saying the case should be postponed. No adjournment granted. Child protection application dismissed under Rule 5.20(2). Interim parenting varied and child support ended as of date when children removed from mother’s care. Key words: Family, Child protection termination,

Summary proceeding,

Parenting, Custody, Parenting, Child support, Termination, Variation Legislation: Children and Family Services Act , S.N.S. 1990, c. 5 Civil Procedure Rule 5.20(2) Divorce Act , R.S.C. 1985 (2 nd Supp.), c. 3 Restriction on publication: Publishers of this case please take note that subsection 94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication.

Subsection 94(1) provides: 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 relative of the child. Publishers of this case further take note that in accordance with subsection 94(2) no person shall publish information relating to the custody, health and welfare of the children. 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: Nova Scotia ( Community Services) v. EL , 2020 NSSC 193 Date: 20200623 Docket: SFH-CFSA 113064 Registry: Halifax Between: Minister of Community Services Applicant v. E.L. and D.M. Respondents AND Between: D.M. Petitioner v.

E.L. Respondent Judge: The Honourable Justice Elizabeth Jollimore Heard : June 23, 2020 Counsel: Peter C. McVey, Q.C. for the Minister of Community Services Eugene Y.S. Tan with D.M. E.L., Self-represented and not appearing Restriction on publication: Publishers of this case please take note that subsection 94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication.

Subsection 94(1) provides: 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 relative of the child. Publishers of this case further take note that in accordance with subsection 94(2) no person shall publish information relating to the custody, health and welfare of the children. By the Court: Introduction [ 1 ] I have two requests before me today.

They relate to 2 children: an 8-year old boy and a 6-year old girl. • The Minister of Community Services wants an order ending its application under the Children and Family Services Act, S.N.S. 1990, c. 5 , against Ms. L and Mr. M. • Mr. M wants an interim order under the Divorce Act , R.S.C. 1985 (2 nd Supp.), c. 3 that places the children in his care and terminates his obligation to pay child support to Ms. L as of February 2019, when the Minister removed the children from Ms. L’s care.

This request is in the context of the parties’ divorce, file 1201-68118. [ 2 ] The Minister of Community Services’ involvement began with a referral from Ms. L’s treating psychologist. Ms. L has a prior diagnosis of schizo-affective disorder and her psychologist said that Ms. L lacked insight into her mental illness. The older child’s school reported on his negative “emotional and behavioural presentation at school”. Agency staff, Tammy MacAskill, observed Ms.

L’s “thinking and conversation appeared to be tangential” and she was “lacking insight into her own mental health.” Progress and procedure until today [ 3 ] The Minister’s application was started in January 2019 and a final disposition order must be made by July 11, 2020 under s. 43(4) of the Children and Family Services Act . [ 4 ] Since December 2019, the Minister has asked me to end its case where the children are with Mr. M. The children have been in

his care since a supervision order was granted on May 31, 2019. While Ms. L agreed to the supervision order (at a review in July 2019), she has opposed the Minister ending her case and the children being placed with Mr. M since December 2019. [ 5 ] Mr. M agrees that the Minister’s application can end, and the children should be with him. [ 6 ] The parties were last together in court in person on March 9, 2020. A hearing had been scheduled for late April. At Ms.

L’s request, the hearing was rescheduled to June and, on March 9, new hearing dates were assigned, and a conference scheduled for June 2. [ 7 ] Between March and June, the Family Division moved to an essential services model because of the provincial state of emergency. [ 8 ] The parties were given telephone numbers and conference call information so we could hold the June 2 conference by phone. One purpose of the call was to determine how the final disposition hearing would be held since the courthouse was not open for in person hearings. On May 28 - 5 days before the conference call, counsel and Ms.

L were provided with copies of Associate Chief Justice O’Neil’s Notices to the Profession and Public outlining the 2 processes available to litigants (a settlement conference and a documents- only proceeding), and His Lordship’s Notice relating to urgent CFSA proceedings. [ 9 ] On May 29 - 4 days before the conference call, Ms. L emailed my judicial assistant saying, in part, “I do not think a telephone concerned [sic] will change things.” She also said “Any delay will only cause more harm to” the children. [ 10 ] The Minister’s lawyer and Mr. M’s lawyer took

part in the call on June 2. Ms. L did not. [ 11 ] After the June 2 call, I wrote to all parties and provided the telephone conference call number and details for today. I confirmed that the Minister expected to file a motion to end her application and Mr. M expected to file a motion for interim custody of the children and ending his child support payments to Ms. L as of February 1, 2019. Because I was told that Ms.

L was no longer willing to accept documents being couriered to her, I granted an order allowing her to be served with documents for these motions at the email address she has used to correspond with the court and counsel. [ 12 ] Mr. M filed his interim motion on June 8. The Minister filed hers on June 9. Both were served on Ms. L by email. The Minister made clear that if Ms. L chose to take part, she could cross-examine the Minister’s witness, but she shouldn’t be allowed to introduce evidence of her own where her deadline for offering evidence had passed. [ 13 ] Ms.

L didn’t ask the Minister to make any of her witnesses available for cross-examination. She confirmed that she wanted none. Regardless, the Minister did still have Martin MacLean available. [ 14 ] Ms. L emailed the court on June 8, saying she thinks it is “unethical to have any hearings before the Court” and that “moving forward with these hearings” is “unjust”.

She said that she thinks the decisions made are going to be “tainted.” She said she “will not participate in any hearings until the emergency order [the provincial state of emergency] is lifted.” These comments contrast with those she made on May 29, that “any delay would only cause more harm to” the children. Ms. L did not explain why she changed her view. [ 15 ] Until we adopted our essential services model, Ms. L was able to be in court and to address me directly (she has been self- represented since September 26, 2019). I adjourned the earlier hearing dates in March at Ms.

L’s request so she could be prepared for the hearing. She chose not to participate today. Ms. L’s adjournment request [ 16 ] The Minister’s application has a deadline of July 11, 2020 under section 43(4) of the Children and Family Services Act . I can only extend that deadline where it is in the best interests of the children. At that point, I have 2 options: take the children into permanent care or dismiss the application: T.B. v. Children’s Aid Society of Halifax , 2001 NSCA 99 . [ 17 ] In effect, the Minister is asking me to dismiss her case: she wants to place the children with Mr. M.

They’ve lived with him for almost 13 months, without any difficulty observed by the Minister’s staff and without any reports of difficulty to the Minister from any other source. [ 18 ] The Children and Family Services Act ’s

preamble makes clear that the Minister’s intervention in a family’s life should be as brief and little as appropriate, considering children’s sense of time and their best interests. Already, the Minister’s involvement with the family has been prolonged from December until now because Ms. L disagreed with ending it. [ 19 ] I have advised Ms. L about filing affidavits. I have provided her with written direction in a conference memorandum. The Minister’s counsel has also directed Ms. L to information that could assist her. We provided Ms.

L with the Notice outlining the new method for filing documents during the state of emergency. She’s filed no affidavit. [ 20 ] There is no evidence from Ms. L (or anyone) to persuade me that it is in the children’s best interests to extend this application. [ 21 ] The Minister asks me to terminate her application under Civil Procedure Rule 5.20(2). She has met the requirements of the Rule 5.20(2)(a) – (c): providing notice where Ms. L does not appear, and disclosing all communications she has had with Ms. L.

In addition, I must be satisfied that the evidence supports granting the order: Rule 5.20(2)(d). [ 22 ] The Minister has been willing to end its case, leaving the children with Mr. M, since December 2019. Ms. L does not agree with this. She has been invited to provide information to support her position. Ms. L was given information about filing affidavits. She hasn’t filed any. [ 23 ] Ms. L has sent emails to the court and provided copies of emails she has sent to others. I have read all the material that Ms. L has provided. I have read all her emails with Mr. McVey disclosed under Rule 5.20(2)(c).

[ 24 ] Ms. L says, in emails, that the children “should never have been taken from my home. They are not safe with their father”. She has not explained these statements or offered information by way of example. [ 25 ] Ms. L’s emails are like her comments in court: she has a good vocabulary and is intelligent. Her thoughts are disorganized and quickly stray from relevance. When others do or say things she doesn’t accept, she says they lack ethics or are unprofessional. She alleges conflicts of interest and dishonesty almost everywhere and suggests that people are working together against her.

This includes family members, social workers at the DCS, the Halifax School Board, the police, and various lawyers, including her own. She has complained to the College of Physicians and Surgeons of Nova Scotia, the Nova Scotia Barristers’ Society and, it seems, to the Nova Scotia Board of Examiners in Psychology. She has written to the provincial Minister of Justice and to her Member of Parliament. [ 26 ] The evidence before me supports the Minister’s request. I order her application be terminated. Mr.

M’s motion under the Divorce Act [ 27 ] There is an existing interim parenting and child support order under the Divorce Act that was granted by consent in October 2015. The parties’ divorce stalled before the Minister became involved. [ 28 ] We typically do not vary interim orders – we ask the parties to move directly and as quickly as possible to a final resolution. [ 29 ] These are not typical circumstances. The parties can’t move quickly to a divorce trial. Financial disclosure is significantly out of date. [ 30 ] The interim order placed the children with their mother and required Mr. M to pay child support.

Mr. M wants to vary this, so the children will stay with him and his child support will end. Child support [ 31 ] The children have not lived with their mother since the Minister began her application in January 2019. They have lived with Mr. M since the end of May 2019. Regardless, Mr. M has still been subject to an interim order for child support. [ 32 ] Where the children have not been with their mother for over a year, Mr. M shouldn’t pay her child support. [ 33 ] I order that Mr. M’s obligation to pay child support to Ms. L end as of February 1, 2019.

Parenting [ 34 ] The concerns that prompted the Minister to act have not been resolved. The Minister ended her case not because her concerns about Ms. L were resolved, but because the children were in a safe place. [ 35 ] In terms of parenting, the children have been with Mr. M under the Minister of Community Services’ supervision for almost 13 months, since the end of May 2019. [ 36 ] The children’s contact with their mother was suspended on October 1, 2019 based on what case aides heard Ms. L say to the children during their visits, reports from Mr.

M and the children’s maternal grandmother about the older child’s comments, and concerns expressed by the children’s therapist. While the Minister’s staff tried to discuss resuming access with Ms. L, she wouldn’t discuss it and access never resumed. The children haven’t seen their mother in 9 months. [ 37 ] The interim order is almost 5 years old. The children were pre-schoolers (aged 2 and 3) when it was made. To end the Minister’s application on its own would see the children returned to their mother under the 2015 interim order. [ 38 ] Ms.

L has offered no evidence opposing her husband’s request to change the interim order. [ 39 ] It’s appropriate that I take the unusual step of varying the interim order. The long delay in finalizing this divorce has made the interim order, in effect, a “final” order. [ 40 ] It’s in the children’s best interests that I place the children in Mr. M’s care and enable him to make decisions for them. It is not in the children’s best interests to live with Ms. L for 3 reasons: 1. The concerns which merited the Minister of Community Services’ involvement remain unresolved. While Ms.

L claims she is in remission, there is no evidence to support this. Her behaviour and comments are disorganized and not relevant to her surroundings. Ms. L agreed to take

part in a psychiatric assessment in July 2019. She was represented by counsel when she agreed. She has not done so. 2. She presents as bearing no responsibility for her situation – it is all the fault of others who are acting inappropriately. She is unaware of the part she plays in her situation. 3. Mr. M has provided an appropriate home for the children for almost 13 months. [ 41 ] My order is an interim one.

[ 42 ] Either party may request a Date Assignment Conference to move the divorce forward. At a divorce hearing, Ms. L can advance any claims about parenting and decision-making that she wishes to make. [ 43 ] Orders are to be served on Ms. L by email. ___________________________________ Elizabeth Jollimore, J.S.C. (F.D.) Halifax, Nova Scotia