Province asks top court to weigh in on child custody 'gap'

The Higgs government is asking the New Brunswick Court of Appeal to rule on the legality of dozens of child custody orders issued during a 43-day "gap" in the law.

The cabinet took the rare step of asking the court to hear a reference case because "questions have arisen" about the legal status of the orders between Dec. 13 and Jan. 26, Attorney General Ted Flemming said in a statement.

Last week, the province acknowledged that a drafting mistake — the omission of one key line in a bill approved by the legislature in December — had created the legal void affecting dozens of custody orders.

At the time, Flemming said in a statement that "New Brunswickers can remain confident that protecting children is of paramount importance and that the safety of vulnerable children has been maintained."

But in Tuesday's statement, Flemming said the court is being asked to determine if provisions of the Family Services Act were in effect during the 43 days and whether the court can address the gap.

The gap was created because of the way the government adopted the new Child and Youth Well-Being Act.

It was approved by the legislature in June 2022 but left unproclaimed — not put into legal effect by cabinet order — so that officials could make some changes to it first.  

Social Development Minister Jill Green introduced those amendments in the legislature last October.

Because of a mistake, they did not contain the line setting out when they would take effect.

That meant that by default, they took effect immediately after they passed and got royal assent on Dec. 13.

The amendments repealed large sections of the existing Family Services Act concerning children in care — without the passed-but-still-not-proclaimed 2022 law being on the books to replace those sections.

"This resulted in no legislative child protection or adoption provisions being in force during this time," Flemming said in Friday's press release.

Cabinet proclaimed the new act and related regulations at midnight last Thursday to close the legal void. 

Under the Judicature Act, the provincial cabinet can ask the Appeal Court to weigh in on legal issues, including the constitutionality of provincial laws or their interpretation and the powers of the legislature.

The last time a provincial government sent a reference case to the court was in 2015, when the Brian Gallant Liberals asked the justices to say whether the Constitution required two bus systems for English and French school systems.

The case was withdrawn before the court could rule.