Family law cases in doubt as province asks top court to 'fill' legal gap
Lawyers say it’s not clear what they should tell clients about error that repealed child-protection provisions
New Brunswick's family court system is still sorting out the potential impact of a legislative mistake that created a 43-day legal void in the province's child protection regime.
Lawyers who represent some of the most vulnerable children in the province say news of the mistake last Friday had the potential to throw their cases into turmoil.
"The news is a little bit spotty," said Rothesay lawyer Patricia Gallagher-Jette, who didn't realize the extent of the problem until she read media coverage last Friday evening.
"All I need to know — my only source is the media — is, 'is that the extent of an error, just that this happened?'" she said.
That's a reference to the fact judges apparently issued custody orders, supervisory orders and guardianship orders for six weeks without any legal authority because of an error in a bill approved by the legislature.
"Step two for me is: before I start advising my clients … is this error fixed? And is it without any negative implications for my client? And I haven't heard that yet."
Fredericton family lawyer Jennifer Davis was also thrown for a loop.
"What initially went through my mind is here are families whose lives have just been further complicated, and [it's] a lot of confusion for them," she said.
"The only advice that I would have to be able to give them right now is those acts had not been proclaimed, and the parts under which your orders were made were repealed, so I wouldn't have a lot of answers to give them yet."
The government disclosed last Friday that amendments to the Child and Youth Well-Being Act adopted by MLAs in December were missing a key phrase authorizing cabinet to proclaim them into effect at a later date.
The mistake got past at least two government departments and a committee of MLAs that studied the bill for four hours.
Without the phrase, the amendments took effect immediately after royal assent on Dec. 13, repealing sections of the Family Services Act on children in care.
But replacement sections of the new Child and Youth Well-Being Act, adopted in 2022, were not yet in effect either, resulting in "no legislative child protection or adoption provisions being in force" between Dec. 13 and Jan. 26, the province said last week.
The provisions give the province the legal authority to intervene if a child is considered at risk in their family home.
In an affidavit filed with the New Brunswick Court of Appeal on Tuesday, the government said 80 new child protection cases involving 127 children were opened during the 43-day gap.
Eleven children were given protective care status, two new foster families were approved, seven kinship placements were approved and 18 children were taken into provincial guardianship during that period, the affidavit said.
In a second affidavit, Elena Bosi, the assistant deputy attorney general overseeing legislation, said she and a colleague noticed the mistake on Jan. 12 while reviewing bills adopted last fall.
"We immediately realized what that meant and what a devastating effect it could have," she wrote.
Initially, the government said "the safety of vulnerable children has been maintained," despite the provisions not being in effect until the new act was proclaimed on Jan. 26.
WATCH | 'We had not received any instructions from the court itself'
But Tuesday the message changed, with a new statement declaring that "questions have arisen" about the validity of the orders issued by judges during the 43-day gap period.
Gallagher-Jette said she was in Saint John family court Tuesday for a trial and was called back to the courthouse by the judge an hour after it wrapped, along with lawyers for other parties in the case, because of the mistake.
The judge wanted to puzzle out what to do about the fact the documents filed in the case and the examination of witnesses were based on the old law no longer in effect.
For Davis, Gallagher-Jette and others practising family law, the stakes are high.
They represent some of the most vulnerable people in the province: children or parents living in homes where there is domestic violence, abuse and addiction.
"Child protection involves almost exclusively involves the less-educated, the poor, the vulnerable" said Gallagher-Jette. "And that includes both parents and the children.
"And yet it is one of the most, if not the most powerful powers that the court has — to permanently remove children from their parents. … That's what you're dealing with."
Davis worried that some people who had been in court over the last six weeks might take matters into their own hands.
"You might have some clients who would look at their order, and read the news that there was this gap, and look at the date on their order and just assume it's not valid, and go and take their own actions … which would create problems in and of itself."
She was reassured after the province announced late Tuesday that it will ask the New Brunswick Court of Appeal to step in.
In the reference case, the government is asking the court whether the sections of the Family Services Act repealed on Dec. 13 remained in effect until the new act was proclaimed, and, if not, whether the Appeal Court can "fill the gap in legislation," according to the filing.
Davis says the answer to the first question appears to be a clear "No" but she's optimistic the second answer will be "Yes."
The government is asking the court to invoke its parens patriae jurisdiction, a common-law concept that allows superior courts to step in to represent the interests of children.
"Usually parens patriae is exercised when there is a gap in legislation, in other words, when statutes and other laws do not provide a proper answer in relation to, for example, a child being in danger," says Jane Thomson, who teachers family law at the University of New Brunswick law school.
"In this instance this seems like a very clear-cut case for the use of that power."
There are still questions about the reference case process.
In 2016, then-Chief Justice Ernest Drapeau questioned whether the Appeal Court should even hear a reference case sent to them by the Gallant government.
The province eventually withdrew the case — but not before Drapeau's concerns led to preliminary hearings and motions that gobbled up most of the year.
The court has scheduled a preliminary case management hearing in the gap case for Thursday.
Gallagher-Jette said she remains uncertain how it will all shake out — and why the province claimed there was no problem last Friday only to ask the court for help on Tuesday.
"So I'm thinking, 'OK, is there still a problem?'" she said.
"It makes counsel uneasy when you can't say to your client, 'This is exactly what's happening and what this means.' It's a little disturbing."
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