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Cape Breton judge tells department to file on time or risk costs award

Court stock image.
Court stock image. - 123RF Stock Photo

A Sydney family court judge has put the Department of Community Services on notice to either adhere to deadlines for filing of documents or risk being tagged with cost awards for delays.

In a decision released Tuesday, Justice Lee Anne MacLeod-Archer said there is a persistent, if not chronic, problem in her district with late filing of documents by the department and that it has become the norm.

“In addition, the minister’s orders are often filed late; in some cases, the order isn’t filed until immediately prior to the next docket date (up to three months later). The vast majority of files scheduled for appearance days to deal with overdue orders, belong to the minister,” said the judge.

The comments were made in relation to a child protection case in which MacLeod-Archer awarded costs in the amount of $250 to Nova Scotia Legal Aid because of late filing by the department.

“When materials are filed late, leading to an adjournment and the use of a second (and sometimes a third) time slot on an already busy docket, it disadvantages everyone in the system,” said the judge, adding the result is lawyers for the parents have to again prepare for another hearing which increases their costs and reduces their time spent on other client files.

The department had filed a protection application on March 12, 2020 and a protection order was issued on June 22.

A final disposition hearing was scheduled along with a prehearing conference which was set for Aug. 5 and MacLeod-Archer ordered that briefs be filed one week in advance of that August date.

The judge noted the department didn’t file its motion for disposition until 1:50 p.m. on Aug. 4 knowing the prehearing conference was set for 10:30 a.m. the following morning.

In examining case law relating to such a case, MacLeod-Archer said while the Nova Scotia Court of Appeal does not appear to have dealt with the issue of costs against a child protection agency, other courts across the country certainly have.

In her decision, MacLeod-Archer said that child protection cases take priority over other family cases particularly because protection cases are governed by statutory time limits.

“This priority status may have led to complacency on the part of the minister as courts are generally unwilling to dismiss a child protection matter for lack of procedural compliance,” she said.

She said nearly every aspect of a parent’s life is under scrutiny in protection hearings and it is important for all to know the department’s plan and what evidence will be entered to support such a plan.

The judge noted the filing delays cannot be attributed to the COVID-19 state of emergency, as the problem in her district has been chronic and long-standing.

She opined that maybe the department needs more staff.

“Either way, the problem must be addressed,” said the judge, in granting the cost award.


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