Attorney General Ted Flemming said in a statement that no children were negatively affected during the 43-day legal gap created by the error. (Jacques Poitras/CBC file photo – photo credit)
The Higgs government is asking the New Brunswick Court of Appeal to rule on the legality of dozens of custody decisions made during a 43-day “legal loophole.”
The Cabinet took the rare step of asking the court to hear a reference case because “questions” arose about the legal status of the orders between December 13 and January 26, Attorney General Ted Flemming said in a statement.
Last week, the province acknowledged that a drafting error – the omission of a key line in a bill passed by the legislature in December – had created a legal loophole affecting dozens of custody orders.
At the time, Flemming said in a statement: “New Brunswickers can continue to have confidence that protecting children is of paramount importance and that the safety of vulnerable children will be maintained.”
But in Tuesday's statement, Flemming said the court would be asked to determine whether the provisions of the Family Services Act were in effect during the 43 days and whether the court could close the loophole.
The gap arose because of the way the government passed the new Child and Young People's Welfare Act.
It was approved by the legislature in June 2022 but not promulgated – that is, not put into effect by cabinet decision – so that officials could first make some changes to it.
MacEachern said he also took issue with Social Development Minister Jill Green's statement suggesting she had worked on him, him and the council when he said he and his fellow councilors had never spoken to her before.
Social Development Minister Jill Green tabled amendments in Parliament last October, which were considered by a committee of MLAs for four hours before finally receiving approval and royal assent on December 13. (Jacques Poitras/CBC)
Social Development Minister Jill Green introduced these changes in the legislature last October.
Due to an error, they did not contain a line indicating the effective date.
This meant that by default they came into force immediately after their adoption and received royal assent on December 13th.
The changes reiterated large portions of the existing Family Services Act that affect children in care – with no enacted but not yet promulgated 2022 law planned to replace those sections.
The story goes on
“This resulted in no statutory child protection or adoption provisions being in effect during this time,” Flemming said in Friday’s news release.
The Cabinet promulgated the new law and associated regulations at midnight last Thursday to close the legal gap.
Under the Judicature Act, the provincial cabinet may ask the Court of Appeal to rule on legal questions, 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 Brian Gallant's Liberals asked the justices whether the constitution provided for two busing systems for the English and French school systems.
The case was withdrawn before the court could rule.
Comments are closed.