Sun. Feb 25th, 2024

The province created a legal loophole and took 6 weeks to realize it.

Protection of the ;childhood: NB in ​​court after an error

Legal vagueness makes decisions rendered uncertain for 43 days regarding the protection of children. (Archive photo)

Radio-Canada

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The New Brunswick Court of Appeal has decided to quickly review the provincial government's request, which mistakenly created a six-week legal vacuum and plunged into uncertainty a range of decisions made for the protection of children.< /p>

From December 13 to January 25, no child protection or child adoption legislation was in force in New -Brunswick.

The government therefore proclaimed the Child and Youth Well-being Act ahead of schedule. We had just realized that by repealing, in December, certain sections of the Family Services Act, we had mistakenly created a legal vacuum which persisted for 43 days.

This calls into question the validity of child protection decisions that were made by judges during this period.

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Prisca Levesque, lawyer at Dalhousie, explains the confusion the situation creates.

The courts do not know […] where to follow this information, and what to do with the decisions and orders rendered, Prisca Levesque, a lawyer at Dalhousie, said in an interview on Thursday.

What do we do with the orders that were made when there may not have been no law in effect at all? And what do we do with the cases that were started and not finished?, asks Me Levesque.

No child or young person was negatively affected by this error, the province's Justice Minister, Ted Flemming, said in a statement last Friday.

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Four days later, the government gives another speech.

Since the proclamation of the Child and Youth Well-being Act on January 26, questions have been raised regarding the legal status of certain actions taken under the Family Services Act between December 13, 2023 and January 26, 2024, Ted Flemming said in a statement Tuesday.

The provincial government has therefore just gone to court. The court is being asked to determine whether the child protection provisions of the Family Services Act remained in effect during those 43 days.

If a judge rules that this is not the case, we want to know whether the court has the jurisdiction to remedy this legal void. In other words, it is whether she had the authority to make decisions for the protection of the children herself.

Jane Thomson, who teaches family law at the University of New Brunswick (UNB) Faculty of Law, is hopeful that the answer to this last question will be yes.

The government asks the court to invoke parens patriae jurisdiction (New window), a principle in common lawwhich allows superior courts to act in place of a father or mother in order to ensure the protection of the child when the appointment of an independent legal representative for the child is not provided for in the legislation.

Usually, parens patriae is used when there is a gap in the legislation. In other words, when the laws do not offer an adequate response if a child, for example, is in danger, summarizes Jane Thomson.

She says the circumstances that existed for 43 days represent a very clear case in which this power can be used by the court. This would therefore make it possible to maintain the decisions made for young people during these few weeks.

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The courthouse in Fredericton, March 23, 2022.

In court filings, the government says 80 new child welfare cases, involving 127 children, were opened during the 43 days.

During this period, responsibility for the welfare of 18 children was transferred to the state, care orders were issued for 11 others, seven young people were placed in the care of family members, and two new families of home were created.

During the first hearing held Thursday, New Brunswick Chief Justice Marc Richard recognized the &x27; urgent action.

The court will hear the case on February 9, if no one wishes to intervene, or on February 12 otherwise, the magistrate decided.

The government provincial did not explain why the error occurred. It eluded at least two ministries and a parliamentary committee that studied the bill.

In other documents presented to the court on Tuesday, we can learn that it was Elena Bosi, the assistant to the deputy attorney general, who noticed with a colleague the province's error, while revising bills adopted in the fall.

We immediately realized what this meant and what devastating effect it could have, wrote Elena Bosi.

With information from Jacques Poitras (CBC) and Serge Bouchard

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