NOVA SCOTIA COURT OF APPEAL
Citation: T.G. v. Nova Scotia (Community Services), 2012 NSCA 71
Docket: CA 398506
Registry: Halifax
Between:
T.G.
Appellant
v.
Minister of Community Services and R.C.
Respondents
Restriction on publication: Pursuant to s. 94(1) of the Children and Family Services Act
Judge: The Honourable Justice Duncan R. Beveridge
Motion Heard: June 21, 2012, in Halifax, Nova Scotia, In Chambers
Held: Application dismissed.
Counsel: Philip Epstein, Q.C. and Michael Zalev, for the appellant
Peter C. McVey, for the respondent, Minister of Community Services
Jane Lenehan, for the respondent, R.C. (Watching Brief)
Restriction on publication: Pursuant to s. 94(1) Children and Family Services Act.
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:
INTRODUCTION
[1] T.G. was the foster mother for R. since his birth in May 2010. She hoped to be able to adopt R. The Minister of Community Services, acting through her agents, decided that it was in the best interests of R. to be adopted by R.C.. There is no avenue to appeal such a decision to a court. However T.G. brought an application for judicial review and for an injunction preventing the Minister from removing R. from T.G.’s care pending her application for judicial review.
[2] A judge granted that order. The same judge later concluded that T.G. had been denied procedural fairness by the agents of the Minister who made the decision to place R. with R.C. for adoption, rather than with T.G.
[3] The Minister appealed. On May 2, 2012 the Nova Scotia Court of Appeal overturned the decision of the lower court and said the Minister could proceed with placement of R. with the adoptive parent selected by the Minister, R.C. The Minister did so by immediately removing R. from T.G.’s care. The necessary documents were executed and R. was placed with R.C.
[4] On May 15, 2012 T.G. filed an application for leave to appeal to the Supreme Court of Canada. A few days later, she brought a motion to have her leave application expedited and for a stay of proceedings. On June 1, 2012 Cromwell, J. granted the request to have the leave application heard on an expedited basis. With respect to the motion for a stay, Justice Cromwell directed that it be heard by the Court of Appeal or a judge thereof.
[5] I heard T.G.’s application for a stay and related relief on June 21, 2012. Specifically, she requested that I stay the order of the Nova Scotia Court of Appeal; require the Minister to return R. to T.G.’s care; and to prohibit the Minister from taking any further steps to have R. adopted by R.C. until T.G.’s application for leave to appeal to the Supreme Court of Canada is determined, and if leave is granted, until the appeal is determined. Given the importance of the outcome of this application, I reserved my decision at the conclusion of the hearing. For the reasons that follow, the application is dismissed.
BACKGROUND
[6] To understand the positions of the parties and put my reasons into context, it is necessary to set out additional background information and a summary of the evidence adduced by the parties on this application. What follows is gleaned from the record of the proceedings before the Nova Scotia Supreme Court Family Division, the Nova Scotia Court of Appeal, the affidavit of T.G. filed on this application and the numerous affidavits tendered by the Minister.
[7] T.G. has been approved as a foster mother for over seven years. She has fostered over 20 children. One of those children is a boy, A., who she adopted.
[8] In the spring of 2010, she advised representatives of the Department of Community Services that she would no longer foster newborn infants in her home on a short term basis. The reason for her decision was at least partly due to the impact on her son forming bonds with foster children and then having to deal with his loss and grief when those children left her care. She remained willing to foster infants if there was a likelihood that the foster placement could become permanent by adoption.
[9] There is some dispute about some of the communications that occurred just prior to, and the months following, the birth of R. T.G. says she was told by an agency worker that R. had two siblings that were currently in foster care and that there was a prospective adoptive mother for R.’s siblings. The prospective mother was R.C. T.G. claims she was told that R.C. was not interested in adopting R. but only wished to adopt R.’s two older siblings.
[10] R.C. is adamant that she never communicated any such view. She says that when she was told that the girls’ mother was pregnant and that a third child may later be available for adoption, she would have to think or consider her position. She told the agency workers in August 2012 that she wanted to be informed if R. was placed in the permanent care and custody of the Minister. Legally, R. could not be adopted unless and until that occurred.
[11] An order for permanent care and custody was made on May 30, 2011. R.’s father consented to that order on his understanding that R. would be placed for adoption with his sisters. Once R. became available for adoption on being placed in the permanent care and custody of the Minister, R.C. advised that she would like to adopt him so that he could grow up with herself and his two sisters.
[12] The day after the order for permanent care was made, two adoption workers met with T.G. They explained that the agency is required by law to consider adoption placement options in preference to T.G.’s wish to adopt R. The mandated, preferred options were with a family of the child’s own culture, race or language, and placement with a relative or siblings.
[13] T.G. is Caucasian, as is A. R. is racially mixed. His father is Caucasian, and his mother is Caucasian and African-Canadian. R.C. is Caucasian and African-Canadian. Nonetheless, T.G. felt strongly that she was ably equipped to be the adoptive parent for R. Since birth, R. had been part of her family, loving T.G. as his mother and A. and R. loving each other as brothers. They had become a family in every sense of the word. T.G. advocated for the Agency to commission an attachment study and to consider the results of such a study before making its decision as to where to place R. for adoption.
[14] On June 22, 2011, the Minister convened an adoption placement conference to decide the adoption placement for R.
[15] A decision was made to permit T.G. to attend that conference and present her plan for adoption. She did so. Part of her presentation was a request for the Agency to order an attachment study. At the conclusion of the adoption placement conference, a decision was made to place R. with R.C. as the adoptive parent.
[16] Steps were taken to commence the transition of R. from T.G.’s foster care into R.C.’s home for adoption. The Agency proposed a six to eight-week transition period. Agency workers from the department were surprised by T.G. advising them that she wanted R. to be fully transitioned by the first week in August, 2011. The reason was T.G.’s concern over how A. would deal with the loss of R. from his family and how that might affect him upon commencing school in September 2011.
[17] T.G. agreed to attend a transition meeting on July 15, 2011. A detailed plan was prepared, accomplishing R.’s placement with R.C. by July 29, 2011. These plans were communicated to T.G. on July 11, 2011. T.G. advised one of the Agency workers that she wanted the transition “ironed out by the 15th” but that otherwise she was satisfied with the transition plan.
[18] There was no transition meeting held with T.G. on July 15, 2011. On July 12, 2011 T.G. swore an affidavit in support of two motions in the Nova Scotia Supreme Court. The first was her notice for judicial review. The second was a motion returnable on July 22, 2011 for an order enjoining the Minister from removing R. from her care and other relief. This motion was heard on July 22, 2011. The Honourable Justice R. James Williams gave an oral decision later that day granting an interim injunction prohibiting the Minister from removing R. from T.G.’s care pending further order of the court.
[19] Justice Williams heard the motion for judicial review seeking to impeach the validity of the decision of the Minister, reached by her lawful delegates at the adoption placement conference of June 22, 2011. I will not review the history of the proceedings including amendments to the relief being sought by the applicant.
[20] On December 5, 2011, Justice Williams rendered an oral decision on T.G.’s motion for judicial review (2011 NSSC 497). He concluded that the Agency’s selection of R.C. was biased and predetermined. This he said violated the Minister’s duty of procedural fairness to T.G. The decision of June 22, 2011 was quashed. Justice Williams ordered the Minister to convene a new panel to determine R.’s adoption placement. This new panel would be made up of three social workers who would be required to swear affidavits that they had no prior involvement with or knowledge of R., T.G. or R.C. The panel had the option to retain a psychologist to prepare a report concerning the needs of R. and the ability of each of T.G. and R.C. to provide for those needs.
[21] The Minister appealed. The appeal was heard on an expedited basis. The hearing was held March 22, 2011. Prior to that hearing, T.G. filed a motion for the court to consider fresh evidence. The fresh evidence was an affidavit by T.G. that attached as exhibits a report dated February 27, 2012 by a panel of three social workers that had been struck according to the terms of Justice Williams’ order; a report from psychologist Dr. Caroline Humphries that the panel had considered; and copies of documents that the panel had before it. The Minister objected to the admission of the proposed fresh evidence. Provisionally, a reply affidavit from Mary Craig, the Agency’s adoption program supervisor, was tendered.
[22] There is no need to canvass in detail the contents of these documents. The court provisionally admitted them for the limited purpose of assisting the court in determining whether the Minister violated her duty of procedural fairness to T.G. before or at the adoption placement conference of June 22, 2011. I need only say the following. The report by Dr. Caroline Humphries was not an attachment study. She did not see or interview anyone. She was not asked, nor did she or speak to, T.G. or R.C.’s ability to provide for the needs of R. The sole question posed was, from an attachment perspective, which adoption placement would be in R.’s best interests. She opined that best practice and placement of a child is to avoid disruption of a primary attachment relationship whenever possible and therefore, from an attachment perspective, an adoption placement with T.G. would be in R.’s best interests.
[23] The panel of three social workers wrote that the adoption placement conference that made the decision on June 22, 2011 to place R. in R.C.’s home was the correct decision at that time. However, they went on to conclude that due to the amount of time that had since passed, it was no longer practicable to place R. in R.C.’s home and that the most suitable home now was that of T.G.
[24] To better understand the issues that the applicant seeks leave to appeal to the Supreme Court of Canada, it is important to make reference to what was and what was not in issue in the proceedings before Justice Williams and before the Nova Scotia Court of Appeal.
[25] Initially, the applicant sought judicial review on only two grounds: that the Minister’s decision to place R. with R.C. was not in R.’s best interests and therefore unreasonable; and the Minister’s decision to remove R. was not made within a reasonable time pursuant to s. 47(5) of the Children and Family Services Act. The latter ground was abandoned. The applicant added grounds of complaint that the Minister did not comply with the requirements of procedural fairness by not following her own plan of action and she was not impartial by predetermining R.’s placement with R.C.
[26] As Justice Williams acknowledged, the Minister has a broad discretion to select adoptive parents for children who are in the permanent care of the Minister. He also observed:
[13] The choice of homes for R.J. would be very difficult. Both homes appear exceptional. R.C.’s home is a racial match and has the advantage of maintaining the biological sibling grouping. T.G. has cared for R.J. since birth. R.J. is undoubtedly attached to her and A.G..
[14] The first ground of Judicial Review pleaded by T.G. asserts that the decision of the Minister is “not in R.J.'s best interests...”
[15] This Court does not have jurisdiction in this proceeding to re‑evaluate the merits of the decision made, to re‑visit, to re‑do, to re‑balance the best‑interest analysis done by the Minister. I do not have the jurisdiction to say “yes” the right choice was made or “no” the wrong choice was made. The first ground of judicial review cannot be said to be unreasonable on its face. The first ground pleaded thus fails insofar as it is a merit‑based concern. [Emphasis added]
[27] Justice Williams also accepted that the Minister has a broad discretion to determine the decision-making process in selecting adoptive parents. He wrote:
[50] There is no requirement that the Minister of Community Services disclose information to either foster parents or potential adoptive parents. There is no requirement that the Minister provide in every case a meaningful opportunity for those persons to participate actively in the selection process.
[51] The Children and Family Services Act provides that the selection of the most suitable adoptive parents is the function of the agency, not the Court.
[28] Nonetheless, Justice Williams concluded that the meeting of the adoption placement conference of June 22, 2011, was simply to confirm R.C.’s plan for adoption. They failed to communicate to T.G. that her plan would only be considered if R.C.’s plan failed. He concluded that T.G. had a legitimate expectation that the meeting of June 22, 2011 would be for the purpose of choosing between two potential adoption placements. Since this did not occur, the actions by the Minister were unfair and violated the principles of fairness and natural justice.
[29] The decision of the Nova Scotia Court of Appeal was released on May 2, 2012. Reasons for judgment were written by Fichaud J.A., concurred in by Saunders and Farrar JJ.A. (2012 NSCA 43). Fichaud J.A. concluded that Justice Williams erred in a number of respects. In terms of explaining the concept of duty of procedural fairness owed by the Minister to T.G., he wrote:
[147] The Agency’s role at the Adoption Placement Conference is decidedly not that of a classic judicial tribunal. A judicial tribunal waits passively for the parties to bring the case forward, keeps a solemn reserve until all the evidence and argument is in, then allows or dismisses the petitioner’s claim with a ruling that, for the first time, breaches the tribunal's objective demeanour and expresses an opinion on the merits.
[148] The Agency, on the other hand, is expected to be proactive before the Adoption Placement Conference to: (1) find a suitable adoptive placement, not with haste, but with some urgency after the permanent care order; (2) once a suitable match is found, finish the legwork, obtain the consents and waivers and satisfy the administrative prerequisites ‑ for instance the communications with Mi'kmaw Family and Children Services in this case; and (3) gather the relevant material and assemble the staff with knowledge of the child’s circumstances at an Adoption Placement Conference. The Meeting’s attendees make a final decision, and the Agency moves forward to implement the decision. The Adoption Placement Conference is supposed to culminate, not initiate the placement choice.
[149] As a culminating event, the Adoption Placement Conference is not expected to convene with the blank slate and placid mind of a jury on opening day of a criminal trial. The Adoption Placement Conference is not tainted because some of its participants have prior inclinations. A conscientious parent is entitled to an opinion. The Adoption Placement Conference likely will open with a prior recommendation for a preferred adoptive parent. That preference likely would have been discussed and endorsed, before the Adoption Placement Conference, by individuals who then attend that Conference. That preference may well be streamed by the criteria, including prioritized criteria, that the Legislature has channelled to define “best interests of the child”. The Adoption Placement Conference is not tasked to hear submissions from competing parties, then award the child as a res to the winning litigant. It is a problem‑solving Conference about the child, not a forum for the argument between adoption applicants. The role of the Adoption Placement Conference is to undertake a culminating assessment, that may adopt a prior recommendation, or may include an appreciation that some second thought is in order, and make a final decision. This fairly describes what happened on June 22, 2011.
[30] Fichaud J.A. went on to explain the consequences if the contended for duty of procedural fairness was accepted. He wrote:
[151] The Agency’s files, as they existed immediately before the Adoption Placement Conference, would be produced and scoured by legal talent for “pre‑determination”. It is highly likely ‑ if the Agency is doing its job ‑ that those files would disclose an email or a note from some Agency employee that expresses a preference, perhaps a strong one, for the proposed adoptive parent. The Agency is supposed to lead the fray to find a suitable adoptive placement. It’s a cognitive challenge to imagine how the Agency could do that without such a document materializing in a file.
[152] Continuing with the scenario, that note would be produced by court order, then used to support a ruling of “bias” or “pre‑determination”. The bias would be cleansed by an interim injunction that suspends the process, followed by a court order on judicial review that vitiates all the Agency's adoptive placement efforts, and remits the matter to a new “independent” panel designated by the judge. The court Order would prohibit that new panel from receiving any “input or advice” from Agency personnel who have knowledge and experience with the child since the child entered the Agency’s care (in this case at R.’s birth). The Order would prescribe the information that the new panel could review and hint at the name of the expert to advise the panel. That information would exclude any reference to the child’s racial or cultural background and would omit substantial material from the Agency’s case file, accumulated since the placement in care. The new panelists would have no personal knowledge of the child, their source information being limited to the documents listed in the Order.
[153] R.’s interim injunction has suspended his adoption for over ten months and kept R. with T.G.. The judge’s decision on Judicial Review emphasizes that, in his view, attachment is the critical factor for a child's best interests, and says (para 166): “The longer a child is in a home, the more attachment issues should be considered”. So, to the judge, the interim injunction’s effect would inexorably strengthen the merits of the injunction applicant’s ultimate case. That injunctive bootstrapping may have left its imprint in this case. The February 2012 report of the new panel that appears in the fresh evidence tendered by T.G. (above para 70) says that R.’s placement with R.C. was “the correct decision” in June of 2011, but that R.’s continuing attachment to T.G. since that time, might now tip the scale to T.G.. I reiterate what I said earlier (paras 69, 83‑85), that these reasons address only the procedural issues, and should not be taken as a comment on the merits that one day will be presented to a judge under s. 78(1).
[31] Justice Fichaud summarized the adoption process that the Legislature contemplated for a child in Agency care in para. 155:
[155] In my view, that scenario could not be farther from the adoption process that the Legislature contemplated for a child in Agency care, namely:
(1) The CFSA intends that, upon permanent care, the Agency be the deemed parent, who wisely and conscientiously, and with some alacrity, seeks a permanent placement ‑ usually, though not always an adoptive home.
(2) To the extent that the CFSA expressly allows the foster parent to participate legally, then that avenue is open. For instance, s. 36(4) permits a foster parent with six months' care to participate in an application to terminate permanent care (C.A.S. v. I.C.). No such provision applies to the proceedings under appeal.
(3) Otherwise, the CFSA intends that the Agency select the prospective adoptive home. That is done after proactive investigation and recruitment, if necessary, by the Agency. This will involve preferences or opinions, weak or strong, by individual Agency personnel before the Adoption Placement Conference.
(4) The Agency staff gathers the material, obtains the consents and waivers, and satisfies the administrative prerequisites.
(5) The Agency stakeholders, including those with prior opinions, gather at an Adoption Placement Conference. That Conference has a culminating look, considers any outstanding issues, then makes a final decision. The placement may be with the foster parent, or it may not.
(6) Then the child is placed with the adoptive family selected by the Agency.
(7) Unless there is an application to terminate permanent care, the CFSA contemplates no legal proceedings that would abort the process to this point. The Agency is the deemed parent under s. 47(1). Section 74(7) says that “[n]o order for the adoption of a child in care of the Minister shall be made without the written consent of the Minster”. Section 74(8) says that, for a child under twelve years of age, “the written consent of the agency or the Minister is the only consent required”. The CFSA requires the Minister to act in the child’s best interests. Best interests sometimes are in the eye of the beholder. The CFSA favours the Minister’s eye at this point, and the Court’s aspect later in the process.
(8) Sections 76 and 77 prescribe the “Prerequisites to adoption”. Sections 76(1)(c) and (d) require that the child “has for a period of not less than six months immediately prior to the application, lived with the applicant” unless the Minister, by certificate, has shortened that period. That provision is noteworthy in this case. The Legislature has addressed the process to assess pre‑adoption attachment. The Minister is to select the prospective adoptive parent, and the child is to live with that person for at least six months in a probationary placement. Then the child has a track record of attachment, or lack of it, with the prospective adoptive parent.
(9) Finally, after the above processes have run their course, under ss. 77 and 78 the Court hears an application for adoption brought by the individual who comes to court with the Minister’s consent, for a child in care. By s. 106, that court is the Supreme Court of Nova Scotia. Section 78(1)(c) says;
“Where the court is satisfied ... that the adoption is proper and in the best interests of the person to be adopted, the court shall make an order granting the application to adopt.”
It is on this application that the Legislature intended the judge of the Supreme Court to rule on the child’s best interests in the proposed adoption. The Legislature intended that, before the Court makes that ruling, the child have six months residence with the proposed adoptive parents ‑ ie, those who have the consent of the Minister to adopt a child in care. The evidence of the child’s experience with the proposed adoptive applicant would assist the Court to assess how issues of attachment affect the child’s best interests.
[32] With respect to the concept of legitimate expectations impacting on the content of procedural fairness, Justice Fichaud pointed out that T.G.’s own evidence was that she had been told again and again that the focus of the Minister was to look at sibling contact and cultural heritage. Therefore, the Agency had made it clear to T.G. that cultural/racial heritage in sibling placement were preferred criteria and that there was therefore no representation and certainly no “clear, unambiguous and unqualified representation by the Agency to T.G. otherwise”. Hence, the motions judge erred in law, the appeal was allowed and T.G.’s motion for judicial review was dismissed.
[33] At the conclusion of Justice Fichaud’s reasons, he wrote:
[218] This will enable the Agency to proceed with R.’s adoption according to the CFSA’s process that I have summarized above (para 155). To be clear, that means: (1) R. would be placed with the Minister’s preferred adoptive parent; (2) unless there is a Ministerial certificate to abridge the time under s. 76(2), R. would have at least six months residence with that individual further s. 76(1)(c); then (3) the Supreme Court would hear any application to adopt by that individual under ss. 77, 78 and 106; and (4) the judge of the Supreme Court would then determine whether R.’s adoption by that applicant is in R.’s best interests under s. 78(1)(c).
Events Post NSCA Decision
[34] At approximately 9:30 a.m. on Wednesday, May 2, 2012, T.G. received a copy of the Nova Scotia Court of Appeal’s Decision. At approximately 10:30 a.m. on the same day, four social workers from the Agency came to T.G.’s home and took R. Plainly, T.G. was shocked by this conduct. She had no opportunity to prepare herself, R. or A. for this development. T.G. describes this conduct as being “extremely unusual”. Each time a foster child was transitioned into an adoptive home, she was involved in that process. In addition, T.G. attaches to her affidavit copies of the Agency’s policies which she says requires the adoption workers to carry out a number of steps, which they did not do.
[35] The Agency arranged for a “goodbye visit” on May 5, 2012. R. was happy to see A. and T.G. In T.G.’s view, R. was not himself. This meeting has been her last contact with R.
[36] The Minister filed 19 affidavits from 15 different affiants. I will not review the contents of each. The details of significance are as follows.
[37] Mary Craig is a professional social worker and is the adoption supervisor in the Dartmouth district office of the Minister, which office has the lawful custody of R. Ms. Craig learned that the Registrar of the Nova Scotia Court of Appeal had alerted the parties that the Court intended to release an oral decision on Friday, April 13, 2012. The Registrar then notified the parties that an oral decision would not be released. Nonetheless, as a result of these communications, she believed that the decision of this Court was imminent.
[38] In line with the well-established principles regarding the need to act expeditiously in proceedings involving children, she decided to convene a fresh adoption placement conference in order to make a fresh and timely adoption placement decision. Her office held that conference on April 26, 2012. Fourteen social workers participated. Some of them were individuals from outside the Dartmouth office. Presentations were made with respect to R.’s needs and best interests and the ability of each of T.G. and R.C. to meet those needs and best interests. As with the meeting of June 22, 2011, detailed minutes of the conference were kept of the April 26, 2012 adoption placement conference.
[39] The decision on April 26, 2012 was unanimous. The Minister of Community Services, acting through her lawful delegate, concluded that it would be in the best interests of R. to be placed for adoption with R.C. Under the policies of the Minister, the decision of the adoption placement conference, effective May 1, 2012, became the decision of the Minister.
[40] Ms. Craig received information regarding the Court of Appeal decision at about 9:00 a.m. on May 2, 2012. She immediately convened a transition plan meeting for the adoption team. The minutes of that meeting reflect:
There are further legal threats that could impede a transition process if we wait. Everyone agreed that further legal action and the stalling of an adopting placement is not in the child’s best interests. We needed to weigh the potential for short-term trauma and grief for the child along with further lengthy legal complications allowing the child to remain in foster care without a permanent long term plan or opportunity to settle into his permanent home as soon as possible. Although we would like to trust that the foster parent will cooperate with the transition plan, in the past she had agreed to participate in a transition plan and then initiated court action that resulted in the child remaining in foster care since July of 2001.
Given that the agency, who knows this child best, has determined that the best long term permanent home for this child is with the adoptive parent of R.’s siblings, it was determined that we must transition the child immediately and take as many steps as possible to minimize the trauma for the child.
[41] Ms. Craig deposed that they realized there was the potential for short term trauma and grief, but after weighing all factors, their decision, as the Minister’s delegate, was to effect immediate transition in R.’s best interests as a whole.
[42] Affidavits were filed from virtually every social worker that had contact at the point of removal of R. from T.G.’s home on May 2, to the last recorded report from the adoption social worker for R. dated June 13, 2012. These affiants unanimously describe a happy, healthy young boy who did not experience, or at least exhibit, any outward signs of grief or distress on being removed from T.G.’s home on May 2, 2012, at the goodbye visit of May 5, 2012, or thereafter. Many of these observations had been tendered in affidavits for the anticipated application for a stay of proceedings before a justice of the Supreme Court of Canada. In T.G.’s affidavit of June 11, 2012, she asserts her personal view that these affidavits defy belief. I will return to these affidavits later.
ISSUES
[43] The applicant succinctly says that the sole issue for me to decide is whether T.G.’s request for a stay pending her application for leave to appeal to the Supreme Court of Canada should be granted. Counsel for the applicant suggests that I apply the test articulated by Hallett J.A. in Purdy v. Fulton Insurance Agencies Ltd. (1990) 100 N.S.R. (2d) 341 where he proposed that a stay should only be granted if the appellant satisfies the court that there is an arguable issue raised by the appellant; if the stay is not granted and the appeal is successful, the appellant will have suffered irreparable harm; and that the appellant will suffer greater harm if the stay is not granted than the respondent would suffer if the stay is granted; or if the court is satisfied that there are exceptional circumstances that make it fit and just that a stay be granted.
[44] The respondent can do nothing but agree that the ultimate issue is, should I order a stay. However, in both their written and oral submissions she raises a host of ancillary issues, including:
1. A stay of proceedings and ancillary relief are equitable remedies but the applicant is not entitled to such relief because she does not come before the court with “clean hands”;
2. The form of relief being requested by the applicant is in the form of a mandatory injunction which is not available against a Minister of the Crown who acts lawfully;
3. Any relief I grant would expire on either the dismissal or granting of leave to appeal;
4. The “exceptional circumstances” test is not available;
5. The applicant has not established any of the criteria for a stay.
[45] After considering the submissions of the parties, the following issues are the ones to be addressed:
1. What is the appropriate test to be applied in considering the relief requested?
2. Has the applicant satisfied me that she has met those tests?
ANALYSIS
What is the appropriate test?
[46] My jurisdiction to grant the relief requested is found in s. 65.1 of the Supreme Court Act, R.S.C. 1985, c. S-26 which provides as follows:
65.1 (1) The Court, the court appealed from or a judge of either of those courts may, on the request of the party who has served and filed a notice of application for leave to appeal, order that proceedings be stayed with respect to the judgment from which leave to appeal is being sought, on the terms deemed appropriate.
(2) The court appealed from or a judge of that court may exercise the power conferred by subsection (1) before the serving and filing of the notice of application for leave to appeal if satisfied that the party seeking the stay intends to apply for leave to appeal and that delay would result in a miscarriage of justice.
(3) The Court, the court appealed from or a judge of either of those courts may modify, vary or vacate a stay order made under this section.
[47] Section 65.1 creates concurrent jurisdiction for the Supreme Court of Canada, a provincial appeal court or a judge of either to order that proceedings be stayed on terms deemed appropriate. This concurrent jurisdiction was created in 1994 (S.C. 1994, c. 44, s. 101). It has become a general rule that the applicant for a stay must first apply to the provincial court of appeal, or a judge thereof (see Richter &Partners Inc. v. Ernst and Young, [1997] 2 S.C.R. 5; Re Pacifica Paper Inc., [2001] S.C.C.A. No. 400). The Minister says there are two consequences that arise from my jurisdiction being founded in the Supreme Court Act.
[48] The first is that the Minister contends that I am bound to follow only the Supreme Court of Canada jurisprudence as to the test to be applied. This, she says is to be found only in the decisions of the Supreme Court of Canada that established that the remedy of a stay of proceedings and interlocutory injunctions are of the same nature and governed by the same principles (Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; RJR – MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311). These principles require the court or judge to focus on a three-stage test: is there a serious question to be resolved (as opposed to a frivolous or vexatious one); would the applicant suffer irreparable harm if a stay was not granted; and which of the two parties would suffer the greater harm from the grant or refusal of the relief being requested (the balance of convenience).
[49] Both parties recognize that the leading case in Nova Scotia with respect to the principles governing the granting of a stay is Purdy v. Fulton Insurance Agencies Limited, supra. In that case, Hallett J.A. canvassed the authorities that dealt with a number of different types of cases. Included in that review were requests for stays of custody orders. As these involve children’s welfare, a stay would be ordered only if special circumstances existed which could be harmful to a child if the order was acted on before the appeal was heard (para. 13).
[50] Justice Hallett also reviewed the then relatively recent decision of the Supreme Court of Canada in Manitoba (Attorney General) v. Metropolitan Stores Ltd., supra, and set out the test to obtain a stay of execution as follows:
[28] In my opinion, stays of execution of judgment pending disposition of the appeal should only be granted if the appellant can either:
(1) satisfy the court on each of the following: (i) that there is an arguable issue raised on the appeal; (ii) that if the stay is not granted and the appeal is successful, the appellant will have suffered irreparable harm that it is difficult to, or cannot be compensated for by a damage award. This involves not only the theoretical consideration whether the harm is susceptible of being compensated in damages but also whether if the successful party at trial has executed on the appellant's property, whether or not the appellant if successful on appeal will be able to collect, and (iii) that the appellant will suffer greater harm if the stay is not granted than the respondent would suffer if the stay is granted; the so‑called balance of convenience
OR
(2) failing to meet the primary test, satisfy the Court that there are exceptional circumstances that would make it fit and just that the stay be granted in the case.
[51] The Minister takes no issue with what is sometimes referred to as the primary test articulated by Hallett J.A. in Purdy v. Fulton Insurance Agencies Ltd. The Minister objects to any consideration of the secondary test that speaks to the power to grant a stay based on “exceptional circumstances”, if it was fit and just to do so. Counsel for the Minister says that this test is recognized in no Supreme Court of Canada jurisprudence and, hence, is excluded from any consideration. No authority was cited by counsel for this suggestion.
[52] With all due respect, I am unable to agree. The reason for the existence of the power to issue a stay and other broad relief pending an appeal is to ensure that justice will not be unfairly denied to a party. The Judicature Act, R.S.N.S. 1989, c. 240 confers broad rule-making powers on the judges of the Court of Appeal. It provides:
46 The judges of the Court of Appeal or a majority of them may make rules of court in respect of the Court of Appeal and the judges of the Supreme Court or a majority of them may make rules of court in respect of the Supreme Court for carrying this Act into effect and, in particular,
. . .
(f) regulating the payment, transfer or deposit into, in or out of any court of any money or property or the dealing therewith;
[53] Nova Scotia Civil Procedure Rule 90.41(2) is such a rule. It provides:
90.41 (2) A judge of the Court of Appeal on application of a party to an appeal may, pending disposition of the appeal, order stayed the execution and enforcement of any judgment appealed from or grant such other relief against such a judgment or order, on such terms as may be just.
[54] Judges of the Supreme Court of Canada have similar broad power to make rules (s. 97). The Supreme Court of Canada rule with respect to powers to stay execution or grant other relief pending proceedings in that court is Rule 62. It provides:
62. Any party against whom a judgment has been given, or an order made, by the Court or any other court, may make a motion to the Court for a stay of execution or other relief against such judgment or order, and the Court may give such relief on the terms that may be appropriate.
[55] This Rule was formally r. 27.
[56] Sopinka and Cory JJ. in RJR -- MacDonald Inc. v. Canada (Attorney General), supra, wrote of the breadth of this power as follows:
30 In light of the foregoing and bearing in mind in particular the language of s. 97 of the Act we cannot agree with the first two points raised by the Attorney General that this Court is unable to grant a stay as requested by the applicants. We are of the view that the Court is empowered, pursuant to both s. 65.1 and r. 27, not only to grant a stay of execution and of proceedings in the traditional sense, but also to make any order that preserves matters between the parties in a state that will prevent prejudice as far as possible pending resolution by the Court of the controversy, so as to enable the Court to render a meaningful and effective judgment. The Court must be able to intervene not only against the direct dictates of the judgment but also against its effects. This means that the Court must have jurisdiction to enjoin conduct on the part of a party in reliance on the judgment which, if carried out, would tend to negate or diminish the effect of the judgment of this Court. In this case, the new regulations constitute conduct under a law that has been declared constitutional by the lower courts.
[57] I accept that while the discretion to grant a stay of proceedings is to be guided by the three-part test confirmed by the Supreme Court of Canada in RJR -- MacDonald Inc. v. Canada (Attorney General) and set out by Hallett J.A. in Purdy v. Fulton Insurance Agencies Ltd., ultimately the goal is to ensure that relief is granted even if some aspect of the three-part test is not strictly met, but it is nonetheless appropriate to grant the relief.
[58] What is added by the express acknowledgment of granting a stay based on “exceptional circumstances” is nothing more than a recognition that in order to ensure an appellant’s right to pursue a remedy on appeal is not rendered meaningless, there exists a residual discretion to grant the relief despite there being an inability to strictly establish all three tests on a balance of probabilities. It is important in this respect to recall what might constitute “exceptional circumstances”.
[59] Cromwell J.A., as he then was, in W. Eric Whebby Ltd. v. Doug Boehner Trucking & Excavating Ltd., 2006 NSCA 129, set out what is meant by exceptional circumstances:
[11] Very few cases have been decided on the basis of the secondary test in Fulton. Freeman, J.A. in Coughlan et al. v. Westminer Canada Ltd. et al. (1993), 125 N.S.R. (2d) 171 (C.A., in Chambers) at para. 13 offered as an example of exceptional circumstances a case in which the judgment appealed from contains errors so egregious that it is clearly wrong on its face. As Fichaud, J.A. observed in Brett v. Amica Material Lifestyles Inc. (2004), 225 N.S.R. (2d) 175 (C.A., in Chambers), there is no comprehensive definition of “exceptional circumstances” for Fulton’s secondary test. It applies only when required in the interests of justice and it is exceptional in the sense that it permits the court to avoid an injustice in circumstances which escape the attention of the primary test.
[12] While there is no comprehensive definition of what may constitute “exceptional circumstances” which may justify a stay even if the applicant cannot meet the primary test, those exceptional circumstances must show that it is unjust to permit the immediate enforcement of an order obtained after trial. ...
[60] Although it is appropriate in most cases to address each of the criteria separately, there may well be any number of scenarios where the strength of one aspect of the test can compensate for a deficiency in another. This practical reality was noted by Justice Robert J. Sharpe in his text, Injunctions and Specific Performance, looseleaf (Aurora, Ontario: Canada Law Book, 2009) (para.2.450):
[T]he test is a relative and flexible one which, it is submitted, necessarily involves an evolution of other factors. Indeed it has been held that an interlocutory injunction may be granted even where “irreparable harm” has not been demonstrated. Similarly, attempts to make irreparable harm a condition precedent and hence a threshold test, have been rejected. . . . If the plaintiff’s case looks very strong, harm may appear to be more ‘irreparable’ than where the plaintiff has only an even chance of success. While judges seldom explicitly acknowledge that there is a “overflow” effect produced by strength of weakness of other factors, it cannot be doubted that, as a practical matter, it exists.
[61] Counsel for the Minister acknowledged during oral submissions that there is such an interrelationship between the criteria. As noted above, counsel for the Minister cited no authorities in support of his contention that the “exceptional circumstances” test does not apply on an application for a stay pending a leave application to the Supreme Court of Canada. I have by no means carried out an exhaustive search, but in KRG Insurance Brokers (Western) Inc. v. Shafron, 2008 BCCA 411, Donald J.A., in Chambers, considered whether “special circumstances” could justify a stay despite the applicant being unable to meet the RJR -‑ MacDonald Inc. criteria.
[62] In Nova Scotia the authorities are divided. In Amica Mature Lifestyles Inc. v. Brett, 2004 NSCA 100, Fichaud J.A., in Chambers, concluded the “exceptional circumstances” test did not apply (para. 46). But there are other cases where judges of this Court did apply the exceptional circumstances test to a s. 65.1 application, one after Amica and one before. In Royal Bank of Canada v. Saulnier, 2006 NSCA 108, (in Chambers), Bateman J.A included the exceptional circumstances test, but found that it had not been met (paras. 7 and 20). In Potter v. Halifax Regional School Board, 2002 NSCA 105, (in Chambers) Roscoe J.A. took a similar approach (paras. 4 and 10).
[63] Despite contending that only the RJR – MacDonald Inc. test governs, counsel for the Minister conceded in oral argument that this test must be modified in cases involving the welfare of children. To this end he accepted as correct the modified test recently articulated by Fichaud J.A. in Reeves v. Reeves, 2010 NSCA 6. Fichaud J.A. wrote as follows:
[20] Fulton’s test is modified in stay applications involving the welfare of children, including issues of custody or access. That is because, in children’s cases, the court’s prime directive is to consider the child's bests interest. The child’s interests prevail over those of the parents, usually the named litigants, on matters of irreparable harm and balance of convenience. Fulton, page 344. Ellis v. Ellis (1997), 163 N.S.R. (2d) 397, at p. 398. Nova Scotia (Minister of Community Services) v. J.G.B., 2002 NSCA 34, at ¶ 7. D.D. v. Nova Scotia (Minister of Community Services), 2003 NSCA 146, at ¶ 9‑11. Minister of Community Services v. B.F., [2003] N.S.J. No. 421 (Q.L.) (C.A.), at ¶ 13, 19. Family and Children’s Services of Annapolis County v. J.D., 2004 NSCA 15, at ¶ 10‑14. Minister of Community Services v. D.M.F., 2004 NSCA 113, at ¶ 12‑15, 20. Family and Children’s Services of Cumberland County v. D.Mc., 2006 NSCA 28, at ¶ 12‑13. The Children's Aid Society of Cape Breton‑Victoria v. L.D., 2006 NSCA 32 at ¶ 18‑19. Gillespie v. Paterson, 2006 NSCA 133 at ¶ 3‑4. Crewe v. Crewe, 2008 NSCA 68, at ¶ 7.
[21] I summarize the following principles from these authorities. The stay applicant must have an arguable issue for her appeal. But, when a child’s custody, access or welfare is at issue, the consideration of irreparable harm and balance of convenience distils into an analysis of whether the stay’s issuance or denial would better serve, or cause less harm to, the child’s interest. The determination of the child’s interests is a delicate fact driven balance at the core of the rationale for appellate deference. So the judge on a stay application shows considerable deference to the findings of the trial judge. Of course, evidence of relevant events after the trial was not before the trial judge, and may affect the analysis. The child’s need for stability generally means that there should be special and persuasive circumstances to justify a stay that would alter the status quo.
[64] In my opinion, the concession is appropriate. The fact that the relief being sought can have profound impact, not just for or on the parties, but on the children who are the subject of the litigation mandates a consideration of their best interests (see for example Minister of Community Services v. B.F., 2003 NSCA 125; B.(C.) v. C.(P), 2003 ABCA 321; G.(A.) v. B.(J.), 2008 ABCA 61; Lefebvre v. Lefebvre, [2002] O.J. No. 4885 ; Leis v. Leis, 2011 MBCA 109).
[65] It is with these principles in mind I turn to the second issue.
Has the applicant satisfied me that the relief requested is appropriate?
Arguable Issue:
[66] Both parties agree that because the appeal proceedings to the Supreme Court of Canada are not as of right, the first part of the test must be modified. They accept as correct the statement by Cromwell J.A., as he then was, in Minister of Community Services v. B.F., 2003 NSCA 125, where he said:
[11] I should clarify certain aspects of this test as it applies in the context of this case. In applying the first part of the test I must remember that, as leave has not been granted at this point, the first part of this test must be modified so as to be concerned with whether there is a serious or arguable issue for leave being granted pursuant to s. 40 of the Supreme Court Act. In other words, the question is not simply whether there is an arguable issue of law, but whether there is an arguable issue of law which could qualify for leave to appeal to the Supreme Court of Canada. As decided by Freeman, J.A in Turf Masters Landscaping Ltd. v. T.A.G. Developments Ltd. and Dartmouth (City) (1995), 144 N.S.R. (2d) 326; 416 A.P.R. 326 (C.A.), this requires that the applicants show that there is an arguable issue of public importance, an important issue of law or mixed law and fact, or that the matter is otherwise of such a nature and significance as to warrant decision by the Supreme Court of Canada as required for leave to appeal to that Court under s. 40 of its Act.
[67] The applicant seeks leave to appeal on the following two issues:
Issue 1: What is the appropriate weight that courts in Canada are to give to factors of culture, race or language in considering whether an adoption placement is within the best interests of the child?
Is racial compatibility a super-weighted factor? Should the “best interests of the child test” be overshadowed by factors of culture, race or language?
Issue 2: What is the content of the duty of procedural fairness owed by an adoption agency to a foster parent seeking to adopt a child in his or her care? Is the duty the same when a foster parent has been specifically designated as fostering with the view to adopt?
Should an adoption agency pre-determine a placement prior to an adoption placement conference?
[68] As noted in RJR -- MacDonald Inc. v. Canada (Attorney General), the test is satisfied if the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried (para. 49). There are no specific requirements which must be met in order to satisfy this criteria but that the “threshold is a low one” (para. 54).
[69] Counsel for the Minister specifically conceded that the application for leave to appeal to the Supreme Court of Canada is not “frivolous or vexatious”. Nonetheless, counsel spent a great deal of time arguing that the circumstances justified a more probing examination of the merits of the grounds of appeal upon which the applicant has sought leave to appeal to the Supreme Court of Canada.
[70] I acknowledge that there is considerable force in the submissions of the Minister. The applicant requests not merely a stay of proceedings but a requirement that the Minister return R. to T.G. This, the applicant says, will preserve the status quo. However, the Minister is undoubtedly correct that what the applicant is attempting to preserve is the day-to-day care of R. The custody of R. resides with the Minister. Section 47(1) of the Children and Family Services Act dictates that the Minister is the legal guardian of the child and as such has all the rights, powers and responsibilities of a parent or guardian for the child’s care and custody. This means that even if leave to appeal is granted, and the appeal is allowed, T.G. cannot adopt R. without the consent of the Minister. The Minister says, at least as circumstances exist presently, she will not consent. If I grant the relief being requested, the applicant will get in the interim what she cannot necessarily get in the final result.
[71] There is also considerable force in the Minister’s submissions that the first proposed ground of appeal questioning the appropriate weight that courts in Canada are to give to factors of culture, race or language in considering adoption placement and the best interests of the child, does not involve an important issue of law, let alone an arguable issue of national or public importance. This issue was not addressed, let alone determined, by the Nova Scotia Court of Appeal. In fact, the Court clearly said that there is no court involvement in such considerations at this stage of the proceedings. Indeed, the applicant withdrew her complaint before Justice Williams that the adoption placement decision was unreasonable. I agree that this is not a case about judges or courts weighing best interest factors. However, this is not the only ground upon which the applicant seeks leave to appeal.
[72] In the applicant’s motion book for leave to appeal, she says there are an estimated 67,000 children in care in Canada as of 2007. Many foster parents who are caring for these children go on to be adoptive parents. She argues that this case offers an opportunity to provide guidance in an important area of the law that affects many Canadians. In light of the well-established principle that the threshold to be met is a low one, I will assume that this part of the test has been satisfied.
Irreparable harm/Balance of convenience:
[73] As noted earlier, the parties agree that irreparable harm and the balance of convenience are inextricably linked to the point that it becomes an analysis of whether the stay’s issuance or denial would better serve, or cause less harm to, the child’s best interests.
[74] Earlier I mentioned that the Minister contends that there are two consequences that arise from my jurisdiction flowing from s. 65.1 of the Supreme Court Act. I have dealt with the first earlier ( para. 48 et. seq.). The second is that the Minister submits that any relief granted by me would only operate to the ruling on leave to appeal.
[75] Counsel for the Minister argues that there is no evidence of irreparable harm between now and the ruling on leave to appeal. He says the ruling is expected as early as July 14, 2012. In other words, he suggests that if I was to grant the relief requested to the applicant, it would lapse on the date the Supreme Court of Canada denied or granted leave. If leave was granted, he suggests that the applicant would need to reapply to the Supreme Court of Canada. In support of this latter point, he cited an annotation which, in turn, relied on the decision by Binnie J. in Quebec (Commission des doit de la personne et des doit de la jeunesse) v. Montreal (City), [1999] 1 S.C.R. 381.
[76] If correct, it means that the issue of the impact of issuance or denial of the stay relief on the interests of R. would only be considered over the next few weeks. With all due respect, I am unable to agree with the Minister’s submissions on this issue. I say so for the following reasons.
[77] First of all, there is nothing in the language of s. 65.1 that expressly makes that temporal limitation. I see no language in the provision that would justify such an interpretation. Secondly, such a result would not be efficient, practical nor just. It would be a cause of considerable waste of judicial resources, not to mention unnecessary expense to litigants, to make a successful applicant, who also succeeds on her leave application, to then re-apply for a stay.
[78] Thirdly, the only Supreme Court of Canada decision that I could find that interprets the scope of s. 65.1 is Quebec v. Montreal, supra. Binnie J. concluded that a party may apply under s. 65.1(1) of the Supreme Court Act for a stay of proceedings before or after leave has been granted. He gave the provision a liberal and expansive interpretation. He wrote (para. 16):
[16] It is not necessary for present purposes to define "execution" in the abstract. No doubt the word takes its colour from its surroundings. In light of the specific provision in the English version of s. 65.1(1) for a stay of proceedings, which may be used as an interpretive guide to the French version of the same text, no stay of proceedings is automatically imposed by s. 65(1). If such a stay is desired by a party who has "served and filed a notice of application for leave to appeal" (in this case the employer), it may move under s. 65.1(1) and Rule 27 at any time thereafter (or even beforehand under s. 65.1(2)). The right to apply is not cut off by the granting of leave. Section 65.1(1) does not express any such limitation. Rule 27[62], which is also not limited as to time, speaks of "execution or other relief against [the] judgment or order".
[79] [Emphasis added]
[80] I could find no Nova Scotia authorities that have expressly considered this issue. Other provincial appellate courts appear divided, some taking the view that the stay would continue pending disposition of the leave application and continue thereafter if leave was granted (M.J. Jones Inc. v. Kingsway General Insurance Co., [2004] O.J. No. 3286 (in Chambers); Anderson v. British Columbia (Securities Commission), 2004 BCCA 326); others that the stay would lapse if the leave to appeal was granted (Re Stelco Inc., [2005] O.J. No. 1333; Zanzibar Tavern Inc. v. Las Vegas Restaurant & Tavern Ltd., [1996] O.J. No. 1826).
[81] Henry S. Brown, Q.C., in Supreme Court of Canada Practice 2012 (Toronto: Carswell, 2011) comments on this issue as follows: “However, orders made under s. 65.1 usually continue until the appeal is disposed of.” (p. 164).
[82] While I have no doubt that a judge can limit the temporal operation of a stay or other relief as part of the terms “deemed appropriate”, I see no automatic temporal limitation. If a stay was considered appropriate pending an application for leave to appeal, I cannot foresee why it would not continue pending determination of the appeal, if leave is in fact granted, absent a change in circumstances. If anything, the granting of leave strengthens one of the criteria for the relief - the existence of an arguable issue. If circumstances change that make the relief granted no longer appropriate, jurisdiction to modify, vary or vacate a stay order is specifically provided in s. 65.1(3) of the Act.
[83] In my opinion, if a stay of proceedings and related relief was to be granted, it would continue until leave was denied, or if leave was granted, until determination of the appeal before the Supreme Court of Canada, or until otherwise dealt with pursuant to s.65.1(3).
[84] With respect to the evidence that the applicant relies upon in support of her contention that a stay would better serve R.’s best interests, she says her affidavit demonstrates that R. established a secure attachment over the first two years of his life with her and her son, A. This is the only family R. has ever known. She argues that the emotional and psychological distress being suffered by R. from the continued disruption of his secure attachment with T.G. will cause irreparable harm to R. and to his relationship with her and A. For this, she relies on the report by Dr. Humphries and the outcome of the reconstituted adoption placement conference of February 27, 2012, which concluded, based on the information available to them, that it would not be in R.’s best interests to sever his attachment from T.G.
[85] The applicant also relies on a report from a psychologist, Dr. Pure, who described A.’s negative reaction to R.’s removal from his home on May 2, 2012.
[86] T.G. describes no emotional upset or distress experienced by R. when he was removed from her home on May 2, 2012. She says in her affidavit that, in her view, R. was not himself during the goodbye visit of May 5, 2012. She says he had a flat effect and was clearly not himself that day.
[87] From this evidence, the applicant also argues that the balance of convenience lies with her as the harm that will be suffered by R. if a stay is not granted exceeds the harm that may be suffered by R. if he returns to her. If the stay is refused, then R.’s interest will be drastically impaired by the time a final determination is made. On the other hand, if R. is ordered returned to T.G.’s care and her appeal is ultimately unsuccessful, then there will appropriate time to permit a transitioning of R. from T.G.’s care to R.C.’s home in a therapeutic manner.
[88] The Minister does not dispute that R. had a healthy attachment to T.G. and to A. On the other hand, R. had been introduced to his two sisters in January and February, 2012. The Agency was plainly aware that there was at least a risk that removing R. from T.G.’s care on May 2, 2012 clearly opened the potential for short term trauma and grief.
[89] Affidavits were filed from every virtually every social worker who was present or had contact with R. from the time of his removal from T.G.’s home on May 2, 2012 to June 13, 2012. In addition, the Minister filed affidavits from R.C., her family, friends, and church leaders. If I accept the evidence as tendered by the Minister, it establishes that R. experienced no grief, emotional trauma or distress at any time. To the contrary, he was talkative, smiling. The affidavits demonstrate that on arrival in R.C.’s home, he immediately slept through the night and has done so since. He eats well, attends daycare with his sisters. In short, all indications are that R. is thriving in his new adoption placement. He is happy, content and well adjusted in R.C.’s home.
[90] The applicant chose not to cross-examine on any of this affidavit evidence. She acknowledges that I must consider this evidence when examining irreparable harm and balance of convenience but suggests that the evidence should be discounted because many of the affiants work for the Department of Community Services. With respect, I am unable to agree. I see no reason not to accept this evidence and I do. There is nothing inherently improbable about this evidence. Indeed, Dr. Humphries, in her report of January 30, 2012, observed that children can form new attachment relationships after the loss or disruption of an initial attachment.
[91] I am not satisfied that the applicant has demonstrated irreparable harm to R. lest I grant the stay of proceedings and related relief. I am also not satisfied that a stay of proceedings and related relief requiring R. to be returned to T.G. would be an order that would best minimize the overall risk of harm to R. pending disposition of the proceedings before the Supreme Court of Canada. I would therefore not grant the relief based on the so-called primary test.
Exceptional circumstances:
[92] In Purdy v. Fulton Insurance Agencies Ltd., Hallett J.A. found exceptional circumstances based on a combination of three factors: the judgment was obtained in a summary proceeding rather than after a trial; the appellant raised an arguable issue and thus may be successful on the appeal from the granting of the summary judgment; and the appellant’s counterclaim and the claim to a setoff had not yet been adjudicated. Therefore, the proceedings were not complete and it was premature to permit execution on the summary judgment.
[93] It is useful to repeat what Justice Cromwell said in W. Eric Whebby Ltd. v. Doug Boehnar Trucking and Excavating Ltd., supra, about the secondary test in Fulton:
[11] Very few cases have been decided on the basis of the secondary test in Fulton. Freeman, J.A. in Coughlan et al. v. Westminer Canada Ltd. et al. (1993), 125 N.S.R. (2d) 171 (C.A., in Chambers) at para. 13 offered as an example of exceptional circumstances a case in which the judgment appealed from contains errors so egregious that it is clearly wrong on its face. As Fichaud, J.A. observed in Brett v. Amica Material Lifestyles Inc. (2004), 225 N.S.R. (2d) 175 (C.A., in Chambers), there is no comprehensive definition of “exceptional circumstances” for Fulton’s secondary test. It applies only when required in the interests of justice and it is exceptional in the sense that it permits the court to avoid an injustice in circumstances which escape the attention of the primary test.
[12] While there is no comprehensive definition of what may constitute “exceptional circumstances” which may justify a stay even if the applicant cannot meet the primary test, those exceptional circumstances must show that it is unjust to permit the immediate enforcement of an order obtained after trial. So, for example, in Fulton itself, Hallett, J.A. found that exceptional circumstances consisted of three factors in combination: first, that the judgment was obtained in a summary proceeding rather than after trial; second, that on the face of the pleadings the appellant raised what appeared to be an arguable issue and, thus, was likely to be successful on appeal; and third, the appellant had a counterclaim and claim to a set off that had not been adjudicated making it premature to execute on the summary judgment.
[94] The applicant submits that the exceptional circumstances here arise from three factors: the Agency failed to comply with its obligation to act in R.’s best interests by removing him from the only caregiver he had ever known without notice or advance warning. A “wise and conscientious parent” would never do such a thing. Furthermore, the Agency violated a number of what the applicant says are the Agency’s own legally binding policies; and the Agency failed to give T.G. notice of the third adoption placement conference that was held on April 26, 2012.
[95] Despite Mr. Epstein’s able submissions, I am unable to agree. In my opinion, the failure to give T.G. notice of the third adoption placement conference is irrelevant. The decision of the Nova Scotia Court of Appeal released on May 2, 2012 dismissed the application for judicial review attacking the validity of the June 22, 2011 adoption placement conference. I see no connection between the Minister seeking to proceed with an adoption cleared of hurdles by this Court on May 2, 2012 and the adoption placement conference of April 26, 2012.
[96] I do not intend to review the policies of the Agency and compare them to what occurred and arrive at rulings or conclusions as to whether they complied with each and every one of the enumerated policies. I think it is fair to say that the Agency recognized that moving immediately on May 2, 2012 would be unusual. Nonetheless, a transition plan meeting was held on May 2, 2012. As detailed earlier, Mary Craig, adoption supervisor, concluded that they would transition the child immediately in light of the events of July 2011, where T.G. appeared to cooperate with a proposed transition plan while in the process of initiating court action.
[97] With respect, I am unable to agree with the Minister that this conduct deprived the applicant of “clean hands”. But T.G., in cross-examination, did acknowledge that she gave every impression to the Agency’s workers that she was cooperating in the process of transitioning R. to R.C.’s home while she was in the process of preparing an injunction to prevent that from happening. While I cannot and do not fault T.G. for pursuing what she believed to be a lawful remedy, the reaction by the Agency is quite understandable.
[98] The applicant argues that I should grant the stay and related relief in order to send a message to the Agency that it is not above the law and that it must comply with its own policies and legal obligation to act in the best interests of the children who are in its care. I have found that, based on the evidence before me, R. has not suffered any trauma, grief or emotional harm. He appears to be well cared for and is content and happy in his new home. An order now removing him from this new home would not be in R.’s best interests. In these circumstances, it is not appropriate to sacrifice R.’s best interests to try to fulfill the applicant’s claim that a stay would send an important message to the Agency.
[99] As to the submission that the Agency failed to comply with its obligation to act in R.’s best interests, I am far from persuaded that that is the case. The evidence demonstrates that the Agency assembled a broadly constituted adoption placement conference on April 26, 2012. All of the relevant information was canvassed including the material that was before the reconstituted adoption placement conference and Dr. Humphries’s views on attachment. The minutes reflect a full discussion of all aspects of R.’s best interests. The one individual who was not there was Cindy Bailey, R.’s social worker. However, she provided all relevant information to the adoption placement conference prior to being called away on a personal emergency. On her return, Ms. Bailey, and her supervisor, agreed with the decision of the adoption placement conference that the best interests of R. were with R.C.
[100] Even “wise and conscientious parents” have to make difficult decisions. From T.G.’s perspective, the decision by the Agency was decidedly not in R.’s best interests. From the Agency’s point of view, it was. I fail to see how this disagreement over where R.’s best interest lie, either alone or with other factors, amounts to “exceptional circumstances”.
[101] Accordingly, I dismiss the application for a stay and related relief. No costs were sought by either party. None are ordered.
Beveridge, J.A.