N.B. Court of Appeal to move quickly to hear child protection reference case

The New Brunswick Court of Appeal says it will move quickly to hear a reference question about whether a drafting error left a legal void in child protection laws and, if so, the court can retroactively fix it.

“The Court recognizes the need to proceed expeditiously,” said Chief Justice Marc Richard during a case management case Thursday afternoon.

The Court will hear the reference on Friday, February 9 or Monday, February 12.

According to an affidavit filed by the attorney general’s office with the Court of Appeal, on January 12 a civil servant discovered that a drafting error had caused the Family Services Act to be prematurely repealed, leaving a 43-day gap where judges had no legal authority to issue supervisory orders, custody orders or guardianship orders. Once the mistake was discovered the government rushed to prepare the regulations for the new Child and Youth Well-Being Act allowing it to be proclaimed on January 26.

The government initially said that “the safety of vulnerable children has been maintained” but on Tuesday it sent out another news release saying that questions had arisen and it intended to file a reference question with the Court of Appeal.

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The reference asks if the provisions relating to child adoption and protection in the Family Services Act are considered to have been in force from when it was mistakenly repealed on Dec. 13 to when the new act was proclaimed last week. If not, the government is asking if the Court can fill that gap in legislation through its parens patriae, a common-law concept that allows a superior court to ensure children remain protected.

During Thursday’s case management conference Michael Hynes, a lawyer for the attorney general’s office, said that the province was hoping to move quickly, saying it’s “apparent there is some degree of anxiety and concern” of what the gap in legislation could mean.

Hynes said that while the case is “unique in scope,” the legal issues are not particularly complicated and that courts have corrected drafting errors in legislation in the past.

Any interveners have until Feb. 7 to apply to the court, in which case the hearing would take place on February 12. Should no interveners come forward the reference hearing will happen on Feb. 9.