Nova Scotia appeal court removes children from disabled parents' care

Nova Scotia's highest court has denied an intellectually disabled couple custody of their children, saying a lower court was wrong to prioritize the parents' rights over their sons.

"We recognize [the parents] genuinely want to continue to parent their children and losing the right to do so is a devastating loss," the Nova Scotia Court of Appeal said in a decision released Wednesday.

"Ultimately the paramount consideration is the best interests of [the children]. They need to be protected from harm and unfortunately their parents are unable to do so."

Overturned lower-court decision

The appeal court overturned a lower-court decision that returned the children to their parents. In that ruling, Family Court Justice William Dyer had said authorities needed to offer the parents more help, not take their sons away.

There has been much said about the parents' failures. The bigger issue may be whether society has failed them.- Family Court Justice William Dyer 

"It may be time for a different perspective, and a different approach in the best interests of the family," Dyer said in his own ruling. He added: "There has been much said about the parents' failures. The bigger issue may be whether society has failed them."

The appeal judges substituted their own judgment rather than ordering a new trial, in an effort to resolve the issue more quickly for the children.

The boys, now aged two and three, have been in the care of child protection authorities for much of their lives.

Present socially as young adolescents

Their 26-year-old mother and 44-year-old father have lived together several years. The appeal court said the two, who were both neglected themselves as children, present socially as young adolescents.

The court said the parents bickered badly and often, and exposed their kids to violence. They prioritized their own needs over their children's, and showed little ability to change, it said.

The parents' lawyers argued there is no evidence they abandoned their sons, but the appeal court said the parents were dysfunctional and unable to care for their children, and their past behaviour means the kids are at "high risk" for future harm. Other, less intrusive methods to address the issue failed, it said.

Children at 'epicentre' of dangerous outbursts

The appeal court noted neighbours overheard screaming and things being thrown in the parents' apartment. On one supervised visit, the father threw a toy train and kicked chairs and yelled "You don't have a father" at one boy. Other times, he kicked a crib and punched a wall.

"The children were often at the epicentre of dangerous outbursts of uncontrolled anger," said the appeal court.

The youngest child was first taken into care as an infant, after the father was charged after domestic violence. The second was taken at 10 months, after the mother decided to return to her partner after a brief separation.

Children have high needs

Both children now have high needs and are aggressive, and the older boy bangs his head, the appeal court said.

The appeal court denied the parents any future access to their boys, saying it "is not in the best interest of the children." It noted the kids had good prospects for adoption.

"Understandably, the parents love and want to continue to care for their children. Losing their right to parent cannot be interfered with lightly and should only occur if required to protect the welfare of a child. Such is the circumstance in this case," said the appeal judges.

Parents may need 'society's long term help'

In his decision at trial, Dyer had said the agency failed "to recognize the parents' special needs as intellectually disabled citizens," and were simply measured on their inability to meet expectations.

"Rarely, if ever, I find, did anyone see the parents through a disability lens or put themselves in their shoes, so to speak," he said.

"Perhaps the parents deserve far more credit than they have been given; and the agency considerably less. I find, with respect, a more nuanced and insightful approach to the parents was warranted.

"In my opinion, the parents may need society's long term help. Many disabled people do. This should not be a rationale to permanently remove their children from their care."

'Not likely to change'

In its decision, the appeal court criticized Dyer for quoting from the United Nations Convention on the Rights of Persons with Disabilities, which wasn't in evidence in the trial.

"It was inappropriate for the trial judge to support his call for a 'different perspective' with a document arguably not properly before the court, but more importantly, a document upon which the parties had no opportunity to comment," the appeal court said.

It said Dyer did not consider the "ample evidence" before him about risks of harm to the children.

"The record is clear and persuasive: the parents lack the ability and capacity to resume safely the care of their children. This is not likely to change," said the appeal court, composed of justices Edward Scanlan, Cindy Bourgeois and Elizabeth Van den Eynden.