Nova Scotia court decision could be candidate for Supreme Court appeal, Dal prof says

A recent Nova Scotia court decision that denied two intellectually disabled parents custody of their children could make an appropriate case for appeal to the Supreme Court of Canada, a Dalhousie University law professor says.

Rollie Thompson told CBC's Information Morning the case is a complex one. 

Last week, Nova Scotia's Court of Appeal overturned a lower court decision when its decision said the rights of the children, age two and four, were more important than those of the parents, and that the parents' behaviour put the children at risk of future harm.

Far-reaching effects

Even though the choice is a binary one — leaving children with their parents or taking those children away — either outcome could have far-reaching effects, Thompson said. 

Thompson said that the Nova Scotia decision could influence how these kinds of cases are handled in the future.

"There is some very strong language in [the decision] that will make it more difficult for the next trial judge to address these issues."

Thinking to guard against

Yet this isn't the first case to raise these questions, said Thompson.

"These issues come up with some frequency in child protection cases," he said.

"Because we are talking about, you know, what's good enough parenting and there's a lot of stereotypes and a lot of automatic thinking in these kinds of cases which you've got to guard against."

Need for services

The lower court decision attempted to encourage different ways of thinking about the rights of intellectually disabled people, Thompson said, both by referencing the UN Convention on the Rights of Persons with Disabilities, and by pointing out that all parents need support when raising their children 

Family Court Justice William Dyer said authorities need to offer parents more services, rather than take their children away.

But as Thompson pointed out, "one of the issues is services available to help parents in the community have disappeared and disappeared under successive governments." 

National importance

The case won't automatically proceed to the Supreme Court, Thompson said. Even if the parents have the means to mount a case, three judges on the Supreme Court need to determine whether the case warrants an appeal.

But the complexity of the case — and the implications it could have for families — make it a good candidate. 

"[Judges] have to decide if it's of national significance or public importance," he said. "This kind of case raises those sorts of issues."