Nova Scotia’s Children and Family Services Act provides authority for the Minister of Community Services to supervise and manage Nova Scotia’s child protection legislation and to appear in court with respect to any matter arising pursuant to the legislation. Each province in Canada has similar legislation, with Ontario’s Act for the Prevention of Cruelty to and Better Protection of Children being Canada’s first child welfare legislation, enacted in 1893.
It cannot be denied that there is a vast difference in power between child welfare authorities and parents who are involved in a province’s child welfare system. British Columbia’s former Representative for Children and Youth and former family court judge Mary Ellen Turpel-Lafond once remarked that regaining custody of children in the ministry’s care “rarely works if they don’t have a lawyer. … it’s a very expensive process, it’s a very complex system …” (The Tyee.ca, “In BC, Odds are Stacked Against Parents Fighting the Children’s Ministry,” November 20, 2018.)
The 46-page trial decision in Nova Scotia (Minister of Community Services) v. R.S., 2023 NSSC 330, reveals a sad tale of a family embroiled in the system, where the mandate must be and is to protect children from harm, promote the integrity of the family and assure the best interests of the child.
Parents J.L and R.S. were common-law partners who became the subject of ministry inquiries when they lived in Newfoundland. They departed that province, moving to Nova Scotia, in the midst of a child protection investigation regarding their son, MA, born in 2016. In 2021, the Nova Scotia ministry became involved and, at that time, there were two children, MA, a 5-year-old boy, and MI, a 4-year-old boy. By the fall of 2022, twins were born to the couple, so at the time of the hearing in 2023, the family comprised four children.
The circumstances identified by Newfoundland authorities and confirmed by Nova Scotia social workers and other professionals included family violence, substance abuse, emotional abuse and neglect, unsafe and unsanitary conditions in the home, the risk of R.S. becoming physical with the children and the possibility that R.S was experiencing suicidal ideation. The evidence also showed that J.L. had used physical punishment on the children, and the children had informed their counsellors that they were afraid of their father and had refused supervised visits with him.
When the children’s school teachers indicated severe behavioural issues on the children’s part, including violence against other students, R.S. removed the children from their school, intending to homeschool them. The reasons indicate that the Nova Scotia ministry took all possible steps to assist the family with individual counselling for the children and each parent, domestic violence education and its effect on their children, speech and language and psycho-educational assessments for MA and MI, mental health assessments of parents and children, and periods of supervised access.
However, no improvements were achieved, and with no secure housing arrangements, the court ordered the four children into the ministry’s permanent care and custody with no contact permitted between parents and children.
The parents were successful in obtaining an order for an extension of time to file a Notice of Appeal and did so on March 19, 2024. This was followed by an application to obtain a government-funded lawyer for their appeal. (J.L. v. Nova Scotia (Minister of Community Services) 2024 NSCA 51). Relying on New Brunswick (Minister of Health and Community Services) v. G.(J.) 1999 3 S.C.R. 46, the appeal court referred to Chief Justice Antonio Lamer’s statements where the court held that state intervention in child protection proceedings may give rise to an obligation to provide state-funded counsel to parents. He said:
“When government action triggers a hearing in which the interests protected by section 7 of the Canadian Charter of Rights and Freedoms are engaged, it is under an obligation to do whatever is required to ensure that the hearing be fair. In some circumstances, depending on the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parents, the government may be required to provide an indigent parent with state-funded counsel…a judge has the power to provide a parent with state-funded counsel under section 24(1) of the Charter through whatever means the government wishes, be it through the Attorney-General’s budget, the consolidated funds of the province, or the budget of the legal aid system, if one is in place.”
Chief Justice Lamer held that state intrusion in child protection proceedings, where a child is removed from a parent’s home, impacts that parent’s security interest, notably their psychological integrity, contrary to s. 7 of the Charter.
The court noted that the provision of counsel is not guaranteed. It must be established that parties do not have the financial means to obtain representation, and further, that they can show they have exhaustively pursued all avenues to obtain pro bono counsel.
The parties provided proof that their application for legal aid had been turned down, however, they had a right to appeal that decision and had not done so. They explained they were not satisfied with the competence of legal aid lawyers they had experienced in the past, hence their unwillingness to further pursue that option.
The Attorney General conceded that the parties were impecunious, noting that secure housing was an issue and that at certain points in time, J.L. lived in his van. The court then considered the merits of the grounds of appeal, summarized by the parties as a material misapprehension of the evidence before the court and an allegation of bias on the part of the trial judge.
Noting the minuscule threshold, the court observed that the appeal was not bound to fail.The final consideration was the capacity of the parties to effectively present their own arguments to the court. The court remarked that both parents had competently and clearly communicated the issues relevant to their appeal and their application materials contained a detailed analysis of the legal issues. The court held that J.L.’s arguments were “organized, coherent and comprehensive” and that he represented himself and R.S. in a calm and focused manner, leading to the court’s dismissal of the application.
If I may venture my opinion on the merits of the appeal, the evidence before the court was overwhelming regarding the lack of insight of these parents and R.S.’s refusal to disengage from J.L. in order to save her relationship with her children, particularly the twin babies. Ultimately, the court believed the children’s accounts of family violence against them and R.S., while she continued to deny that it had occurred. I expect that the trial judge’s findings of fact will be difficult, if not impossible, to challenge on appeal.