SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Nova Scotia (Community Services) v. NW , 2020 NSSC 244 Date: 2020-09-14 Docket: SFHCFSA No. 114927 Registry: Halifax Between: Minister of Community Services Applicant v. N.W. Respondent Library Heading Judge: The Honourable Justice Theresa M.

Forgeron Heard: September 14, 2020, in Halifax, Nova Scotia Oral Decision: September 14, 2020 Subject: Family Law; Child Protection; Appointment of Litigation Guardian for Respondent mother Issues: Should a litigation guardian be appointed for the mother under Rule 36 or via the court’s inherent jurisdiction Result: The court does not have the jurisdiction to appoint a litigation guardian for the mother under Rule 36. Rule 36 was amended to incorporate the Adult Capacity and Decision-making Act . Rule 36 does not confer a stand-alone authority to appoint a litigation guardian.

The ACDA provides a fair, respectful, and comprehensive framework to determine the capacity of vulnerable adults. The court should not employ its inherent jurisdiction because the ACDA provides a principled method to assess capacity. There is no persuasive reason why the mother’s capacity should not be assessed under the ACDA . It is inappropriate to substitute the legislative process for an ad hoc one developed on a case-by-case basis. Motion refused. THIS INFORMATION SHEET DOES NOT 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. NW , 2020 NSSC 244 Date: 2020-09-14 Docket: SFHCFSA No. 114927 Registry: Halifax Between: Minister of Community Services Applicant v. N.W.

Respondent Judge: The Honourable Justice Theresa M. Forgeron Heard: September 14, 2020, in Halifax, Nova Scotia Oral Decision: Written Decision: September 14, 2020 September 17, 2020 Counsel: Sarah Gordon, for the Applicant, the Minister of Community Services Lola Gilmer, for the Respondent, N.W. Linda Tippett Leary as Amicus Curiae By the Court: Introduction [ 1 ] NW is the mother of one-year old N, who is the subject of this child protection application. The mother is represented by Ms. Gilmer. Ms. Gilmer seeks to be removed as the mother’s lawyer. Ms.

Gilmer states that the mother is unable to make informed decisions and is unable to provide instructions. [ 2 ] The Minister of Community Services agrees with Ms. Gilmer. The Minister states that the mother has an intellectual disability and presents with exceptionally low functioning and adaptive skills deficits. [ 3 ] After Ms. Gilmer filed a motion to be removed as counsel, the Minister applied to have Susan Sly appointed as the mother’s litigation guardian. When asked about her position, Ms. Gilmer advised that she had no instructions. Because of these unusual circumstances, I appointed an Amicus Curiae . Ms.

Tippett-Leary assumed this role. Upon reviewing the materials, Ms. Tippett-Leary advised that she supports the appointment of Ms. Sly as litigation guardian. [ 4 ] Despite the lack of objection to Ms. Sly’s appointment, I continued with the hearing because of the jurisdictional issue. Specifically, I must determine if I have the authority to appoint Ms. Sly as the mother’s litigation guardian according to the procedure outlined in the Minister’s materials. After determining the Minister’s motion, I will then rule on Ms. Gilmer’s motion to be removed as the mother’s lawyer.

Issues [ 5 ] When making my decision, I will answer the following four questions: • What is the position of the parties? • Do I have jurisdiction to appoint a litigation guardian under Rule 36? • If not, can I apply inherent jurisdiction to do so? • Should I grant Ms. Gilmer’s motion to be removed as the mother’s lawyer? [ 6 ] Before addressing these issues, I will provide relevant background facts to provide context to the litigation. Background Information [ 7 ] On May 31, 2019, a child protection referral was received from the IWK Health Team concerning the mother’s pregnancy.

The child was born on June 25, 2019. Protection workers met with the mother to discuss their concerns. In response, the mother initially planned to have her father supervise and support her parenting. This plan, however, did not materialize. Further, it was later discovered that the mother’s father is also the father of the child. The mother no longer lives with her father. [ 8 ] The child was born with extensive health needs and remains medically fragile.

She receives ongoing treatment from the IWK Health Center, including from its physiotherapy, occupational therapy, and immunology departments. [ 9 ] On July 4, 2019, a protection application was filed under s. 22(2) (b), (g), (

k) and (kb) of the Children and Family Services Act. Protection concerns centered around the mother’s low functioning. The Minister states that the mother has not mastered basic parenting skills which places the child at a significant risk of physical and emotional harm. In addition, the mother is transient and has not secured stable housing.

[10] Interim proceedings were completed on July 4 and 22, 2019. The protection finding was entered on September 30, 2019. Thedisposition order issued on December 17, 2019, with review orders being granted on February12, 2020, May 6, 2020 and July 21, 2020. Since the proceedings began, the child has remained in the care of the Minister. The mother has supervised parenting time. [11] In August 2019, a psychological assessment of the mother’s abilities was completed by registered candidate, Liza Gabriel,M.A.S.P. of Shift Psychological and Counselling Services. At page 12 of her report, Ms.

Gabriel stated as follows about the mother: • That she presented with thinking and reasoning skills that fell in the extremely low range, based upon her full-scale cognitive score, at less than the 0.1st percentile. • That she experienced significant challenge on all cognitive tasks presented. • That she faced significant challenge using information to reason and problem solve. • That her academic performance was commensurate with her cognitive skills. • That she displayed adaptive skills difficulties. [12] Ms.

Gabriel concluded that the mother meets the criteria for an intellectual disability given her extremely low cognitivefunctioning as well as her adaptive skills deficits. [13] After reviewing the assessment, the Minister continued to work with the mother and attempted to implement Ms. Gabriel’srecommendations. Eventually, the Minister concluded that she would seek a permanent care order after a November risk managementconference, and as confirmed in the November 12, 2019 motion filed. [14] On February 10, 2020, Ms. Gilmer filed a motion to be removed as solicitor of record. In her affidavit, Ms.

Gilmer noted asfollows at para. 15: Based on my two meetings with xxx, and my review of the material in this matter, including the Psychological Assessment Report fromLiza Gabriel, it is my conclusion that xxx cannot instruct me. I am not confident that xxx has sufficient understanding about what istaking place in this proceeding, in order to make informed decisions on her own behalf, and to be able to instruct legal counsel. [15] On March 5, 2020, the Minister applied to have Susan Sly appointed as the mother’s litigation guardian.

In support, theMinister relied on the affidavits filed by Stephanie Inness, Katie Brown, Melissa Blaikie, Lola Gilmer and the psychological assessment. The Minister’s affidavits speak to the continuing protection concerns arising from the mother’s cognitive difficulties, lack of parentingskills and transience. [16] On May 28, 2020, a telephone conference was convened because COVID protocols prevented an in-person hearing. Themother was not present for the call. The court scheduled a hearing for June 12, 2020. The mother was not present for the June 12conference.

At that time, I appointed an Amicus Curiae because Ms. Gilmer was unable to obtain instructions. Ms. Tibbett-Learyeventually assumed this role. [17] The Minister filed a brief to support her motion. In addition, I directed counsel to review the Adult Capacity and Decision-making Act, S.N.S, 2017 c.4 and the case of Ocean v. Economical Mutual Insurance Co., 2009 NSCA 8, because these authorities werenot canvassed.

The Minister and the Amicus filed briefs to address these authorities. [18] No further in-person hearing was held because the parties confirmed that they did not seek to cross-examine, that they did notseek to provide further oral submissions, and that they did not seek an in-person hearing. My oral decision was thus delivered by audioconference. [19] I now turn to the analysis portion of my decision. Analysis [20] What is the position of the parties? Position of the Minister and Amicus [21] The Minister and Amicus state that Rule 36 and the legal test set out in the Minister of Health v.

J.J., 2003 NSSF 42 ,2003 NSSF 042, provide me with the jurisdiction to appoint Ms. Sly as the mother’s litigation guardian. [22] In addition, the Minister and Amicus suggest that the ACDA should not apply because of three challenges. First, although s. 5 ofthe ACDA allows a “person” to apply for a representation order, many individuals, especially those involved in child protectionproceedings, lack family and friends who can do so. Second, the Public Trustee is under no obligation to assume this role. Third, s.34(2)(

b) and (

c) of the Act limit a representative’s authority in matters involving custody, parenting, adoptions, or guardianship ofchildren. Given these unique challenges, they argue, that an order under the ACDA is not a prerequisite to the appointment of a litigationguardian. [23] Furthermore, the Minister and Amicus submit that the principles discussed in Ocean are not applicable for four reasons. First,Ocean involved a tort claim while this matter concerns a child protection issue. Second, Ocean arose because the court lacked thestatutory authority to order an assessment. Conversely, the Minister has statutory authority to order assessments under s. 39(4)(

g) of theCFSA and properly did so in the mother’s case. Third, Ocean predates the ACDA. Fourth Rule 36 was revised after the Ocean decision.Rule 36 is now more descriptive than that in place when Ocean was decided.

[ 24 ] Finally, the Minister and Amicus state that even if I lack authority under Rule 36 , I should nonetheless appoint Ms. Sly by exercising my inherent jurisdiction. To do otherwise will mean that the mother is effectively without representation. Position of the Mother [ 25 ] I do not know the mother’s position. Ms. Gilmer does not have instructions. [ 26 ] Do I have the jurisdiction to appoint a litigation guardian under Rule 36? [ 27 ] I disagree with the position of the Minister and Amicus . Rule 36 does not provide me with the jurisdiction to appoint a litigation guardian for the mother.

I offer six reasons for my decision. Rule 36 [ 28 ] First, Rule 36 offers no standard or test to determine lack of capacity. Although providing no standard or test, Rule 36 nonetheless points directly to the ACDA as the vehicle through which such a finding can be made.

Rule 36 was specifically amended to incorporate the language derived from the ACDA as is evident in Rule 36.06(1) which states as follows: 36.06(1) A child, or a person who has been found not to have capacity to act on their own or to instruct counsel, must start, defend, contest, or respond to a proceeding by a named litigation guardian, or a guardian under the Guardianship Act or a statutory representative. [ 29 ] The term “statutory representative” in Rule 36 is not defined, but its meaning is clear from context and legislative history.

The phrase “statutory representative” was the substitute for “the Incompetent Persons Act ” when the Rule was amended to reflect the introduction of the ACDA in place of the IPA . Further, the phrase “who has been found not to have capacity to act on their own or to instruct counsel” in Rule 36.06(1) replaced the IPA terminology “who is not capable of managing their own affairs...” [1] In other words, the Rule was amended to incorporate the ACDA . It follows that a representative appointed under the ACDA is a “statutory representative” under Rule 36.

Purpose of ACDA [ 30 ] Second, the legislature explicitly enacted the ACDA as a fair and respectful legal framework to determine the capacity of vulnerable adults as noted in s. 2 of the Act wherein its purpose is reviewed as follows: 2 The purpose of this Act is to (

a) recognize that adults may experience an impairment of their capacity; (

b) provide a fair and respectful legal framework for protecting the safety and security of adults whose capacity is impaired and who may be made vulnerable thereby; (

c) promote the dignity, autonomy, independence, social inclusion and freedom of decision-making of adults who are the subject of this legislation; and (

d) ensure that the least restrictive and least intrusive supports and interventions are considered before an application is made or a representation order is granted under this Act . ACDA

Interpretation Principles [ 31 ] Third, the principles espoused in s. 4 of the ACDA confirm the delicate balance that the legislature deemed appropriate where lack of capacity is in issue.

Section 4 states that the Act “is to be interpreted and administered in accordance with the following principles”: (

a) an adult is entitled to make his or her own decisions, unless the adult’s incapacity to do so is clearly demonstrated; (

b) an adult is not incapable of making a decision merely because the adult makes or would make a decision that another adult would consider risky or unwise; (

c) an adult is entitled to communicate by any means that enables the adult to be understood, and the means by which the adult communicates is not relevant to a determination of whether the adult has capacity; and (

d) where an adult does not have the capacity to make a decision, the adult’s autonomy must be preserved by ensuring that the least restrictive and least intrusive form of representative decision making is provided that is likely to be effective to promote and protect the adult’s well-being and interests in financial matters.

Definition of Capacity in ACDA [ 32 ] Fourth, unlike s. 36 of the Civil Procedure Rules , the ACDA specifically defines capacity at s. 3(

d) as “the ability, with or without support,” to (

i) understand information relevant to making a decision, (ii) appreciate the reasonably foreseeable consequences of making or not making a decision including, for greater certainty, the reasonably foreseeable consequences of the decision to be made... ACDA’s Detailed Process [ 33 ] Fifth, the ACDA establishes a detailed process to employ when asking the court to issue a representation order. The application is brought by ‘a person” under

section 5. Subsections 5(4)-(7) set out the requirements of notice and service. The comprehensive content of the application is described at secs. 5(2) and (3) as follows:

(2) An application must include (

a) subject to subsection (3), a capacity assessment report respecting the adult who is the subject of the application; (

b) a representation plan; (

c) a vulnerable sector check respecting each proposed representative and proposed alternative representative who is an individual; (

d) a supporting affidavit that includes the information prescribed by the regulations; (

e) evidence of the consent of each proposed representative or alternate representative to act as the representative or alternate representative for the adult, as the case may be; and (

f) any other documents or evidence prescribed by the Court.

(3) An application is not required to include a capacity assessment report if the adult who is the subject of the application refuses to undergo a capacity assessment as directed under

Section 10 or is prevented from undergoing a capacity assessment. [ 34 ] The test that the applicant must prove before a representation order is granted is discussed under s. 7(1) of the Act as follows: (

a) the adult does not have capacity respecting the matters that are to be referred to in the order; (

b) the adult needs or will need to make decisions about the matters that are to be referred to in the order; (

c) any less intrusive and less restrictive measures available have been considered and would not likely be, or have been implemented and have not been, effective to protect and promote the adult’s well-being and interests in financial matters; and (

d) the adult is in need of a representative. [ 35 ] In deciding whether to make a representation order, and what terms such an order should incorporate, s. 7(2) of the Act provides that the court shall consider a number of matters including the wishes of the adult, the capacity assessment, and the representation plan. Matters involving capacity assessments, assessment reports, the appointment of a suitable representative, and the obligations of appointed representatives are all carefully canvassed within the body of the Act and its regulations.

Case Law [ 36 ] Sixth, the decision of Nova Scotia (Community Services) v HU , 2018 NSSC 99 , supports the view that an ACDA representative appointment is an option where a parent in a permanent care and custody proceeding is unable to instruct counsel. In HU , the Minister sought a permanent care order. At paras 5 – 7, the mother’s counsel indicated that the mother was unable “to provide instructions or to articulate whether she understood what was going on” and counsel “was concerned about her client’s level of understanding.” Jollimore, J. favourably commented on the potential use of the ACDA in her decision.

Summary [ 37 ] I find that Rule 36 does not provide the jurisdiction to appoint Ms. Sly as the mother’s litigation guardian. Rule 36 was amended to incorporate the ACDA. The ACDA was enacted as a fair, respectful, and comprehensive legal framework to determine the capacity of vulnerable adults. Its use is also appropriate in child protection matters. [ 38 ] Should I apply my inherent jurisdiction to appoint Ms. Sly as the mother’s litigation guardian? Court of Appeal Caution

[ 39 ] In Ocean v. Economical Mutual Insurance Co. , 2009 NSCA 8 , Bateman, J.A. discussed the procedural concept of inherent jurisdiction. The Court of Appeal held that courts must be cautious when exercising such power at para 75 which states as follows: [75] This Court cautioned in Goodwin v. Rodgerson , 2002 NSCA 137 , (2002), 210 N.S.R. (2d) 42: [17] The inherent jurisdiction of the court has been described as a vague concept and one difficult to pin down.

It is a doctrine which has received little by way of analysis, but there is no question it is a power which a superior trial court enjoys to be used where it is just and equitable to do so.

It is a procedural concept and courts must be cautious in exercising the power which should not to be used to effect changes in substantive law . (Emphasis added) [ 40 ] Further, Bateman, J.A. confirmed that one must act judicially when exercising inherent jurisdiction at paras. 77 and 78, which state as follows: [77] Inherent jurisdiction does not bestow an unfettered right to do what, in the judge's opinion, is fair as between the parties.

A court’s resort to its inherent jurisdiction must be employed within a framework of principles relevant to the matter in issue (see ABN Amro Bank Canada , supra and Golden Forest Holdings Ltd. , supra ). [78] An action taken pursuant to the inherent jurisdiction of the court requires an exercise of discretion. Discretion must always be exercised judicially ( British Columbia v. Worthington (Canada) Inc. , [1988] B.C.J. No. 1214 (Q.L.)(C.A.) , per Lambert, J.A., dissenting in the result). (See also Ward v.

James , [1965] 1 All E.R. 563 (C.A.) at p. 570) [ 41 ] When assessing whether the trial judge erred in using her inherent jurisdiction to order a capacity assessment, Bateman, J.A. confirmed at para 81 that “an adult person is presumed to be competent to manage her own affairs”.

Bateman, J.A. also confirmed, at para. 82, that the 1972 CPR did not outline a “procedure for having a person declared incompetent” and that the “statutory vehicle to address issues of incompetency” was the IPA . [ 42 ] Further, Bateman, J.A. held, at para. 99, that the trial judge erred by invoking its inherent jurisdiction and made that finding without deciding whether a court “can rely upon its inherent jurisdiction to inquire into a litigant’s competence”.

Two of the reasons listed and relevant to my decision were articulated in para.100, as including the following: • Permitting an opposing litigant to raise the question of a party’s mental capacity in a proceeding sets a dangerous precedent, as discussed in Halstead v. Anderson , supra at para. 57 (reproduced in para. [93] above). • The court’s inherent jurisdiction is an extraordinary power, rooted in controlling contempt of court or abuse of the court’s process and should not be used save in the clearest of cases.

My Decision [ 43 ] It is not necessary for me to decide whether the appointment of a litigation guardian is a proper exercise of the court’s inherent jurisdiction. I need not decide that point because even if such power exists, I would not exercise it for the following five reasons: [ 44 ] First, I must proceed cautiously, acting judicially and in a principled fashion. [ 45 ] Second, the ACDA provides a comprehensive, fair, and respectful framework within which to assess an adult’s capacity.

This framework was expressly enacted to balance the needs of an adult’s dignity, autonomy, independence, social inclusion as well as the safety and security of vulnerable persons. It would be inappropriate to substitute this legislative process for an ad hoc one developed on a case-by-case basis. [ 46 ] Third, the Minister is seeking the permanent care and custody of the mother’s child. The Minister’s position does not align with the mother’s desire to parent her own child. The mother’s desire was communicated to the protection worker.

Granting an order in such circumstances would create the dangerous precedent discussed in Ocean . [ 47 ] Fourth, nothing in the language of the ACDA bars Ms. Sly from bringing an application under the ACDA . [ 48 ] Fifth, participating in child protection litigation is encompassed within the authorized power of a representative under s 27(4) of the ACDA, which

section permits the court to authorize the representative “to act and make decisions respecting any one or more of” a list of specific matters, including under (

g) and (

j) as follows: (

g) whether to commence, continue, settle or defend any claim or proceeding that relates to the adult; .... (

j) any other matter the Court considers appropriate. [ 49 ] Further, although in s. 34 of ACDA , restrictions apply to a representative’s authority to determine custody, parenting arrangements, and guardianship of children, such restrictions are not applicable under s. 34(2)(

c) where a court orders otherwise. As such, the court may make an order dealing with certain parenting arrangements, including guardianship and CFSA applications.

Summary

[50] Given the forgoing, I will not invoke my inherent jurisdiction to appoint Ms. Sly as the mother’s litigation guardian. It goeswithout saying that this decision has nothing whatsoever to do with the professionalism, competence, or skills of Ms. Sly. [51] Should I grant Ms. Gilmer’s motion to be removed as the mother’s lawyer? [52] I allow Ms. Gilmer’s motion to be removed as the mother’s counsel. I encourage the mother to apply for another lawyer. In themeantime, Ms. Tippett-Leary will continue in her role of Amicus to assist the court on procedural, evidentiary, and substantive matters.

In so doing, I reference three cases. [53] First, in New Brunswick (Minister of Health and Community Services) v G(J), (SCC), [1999] 3 SCR 46, theSupreme Court of Canada, at para 61, held that a child protection proceeding triggers a potential violation of the right to security of theperson under

section 7 of the Charter. As such, a parent has a constitutional right to state-funded counsel if this is the only way to ensurea fair hearing.

The court, at para. 86, held that not every custody hearing would require representation; the need “for the parent to berepresented by counsel is directly proportional to the seriousness and complexity of the proceedings, and inversely proportional to thecapacities of the parent.” [54] Second, in CV v Children's Aid Society of Halifax, 2006 NSCA 2, the trial judge hearing a permanent care and custodyapplication, appointed an Amicus “to assist the respondents by providing advice on procedural, evidentiary and substantive matters.” TheCourt of Appeal held at para. 55 that “[w]hile this was not an appointment of counsel for the child, it did ensure the parents, who wouldnormally have the interests of their child uppermost in their minds, had access to counsel during the proceedings.” The parents in CV,whose behaviour raised serious mental health concerns, declined to have counsel, despite legal aid being available to them, and weredifficult and uncooperative with the court. [55] Third, an Amicus appointment may be appropriate in the child protection context where a parent is unable to maintain asolicitor-client relationship, as the court concluded in Children’s Aid Society of Toronto v SA, 2017 ONCJ 553 at para. 61 as follows: [61] The court finds that in the particular circumstances of this case, the appointment of amicus is actually the most effective way toprotect the mother’s

section 7 rights. It will ensure that evidence relevant to her interests will be fairly presented to the court so it canmake an order in the child’s best interests. The appointment of amicus avoids the high risk of another breakdown in a solicitor-clientrelationship that might leave the mother without the benefit of counsel, particularly if the breakdown takes place on the eve of asummary judgment motion or a trial. Conclusion [56] Rule 36 does not confer a stand-alone authority to appoint a litigation guardian. Rule 36 was amended to incorporate the ACDA.

The ACDA was enacted as a fair and respectful legal framework to determine the capacity of vulnerable adults. The ACDA offers acomprehensive framework to determine capacity. There is no persuasive reason why the capacity of a parent responding to a permanentcare and custody application should not be assessed under ACDA procedures. The combined effect of the ACDA and Rule 36 provides aprincipled method to assess the capacity of a respondent in a CFSA application. As such, it is not necessary to access any inherentjurisdiction that the court may possess. [57] Ms.

Gilmer is permitted to be removed as the mother’s solicitor, while Ms. Tippett-Leary will continue to act as Amicus Curiae. Ms. Gordon is to prepare the order. Forgeron, J.