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Digest of the Week | Evidence on Appeal

Nova Scotia (Community Services) v. V.A.H. | 2019 NSCA 72 | Nova Scotia Court of Appeal

Family law --- Children in need of protection — Practice and procedure in custody hearings — Appeal of order — Evidence on appeal

Parents' two children had wide array of physical, mental and emotional challenges that created complex needs and required specialized treatment, care and supervision — Parents had intellectual disabilities, including both cognitive and adaptive ability challenges, which compromised their practical capacity to live independently as adults — Children were taken into care, and interim care and custody was granted to children's aid society — Children were found to be in need of protective services due to substantial risk of physical and emotional abuse parents were not able to address, and finding that children had already experienced emotional abuse — Judge dismissed society's application for permanent care order, while finding that children and parents required ongoing and necessary services, and returned custody and care of children to parents — Society appealed — Appeal allowed — Fresh evidence society adduced was admitted — Fresh evidence disclosed that children continued to be very high needs for special services, monitoring and other forms of intervention — Due diligence requirement for admission of fresh evidence was diminished here because evidence focused on ongoing nature of children's needs and behavioural challenges, as well as parents' ability to meet those needs — Evidence was clearly relevant — Both children's needs and parental capacity affected propriety of order for permanent care — There were no credibility issues with evidence.
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