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Province's top court to hear arguments on child protection 'gap' Friday

Chief Justice Marc Richard had set a deadline of 4:30 p.m. on Wednesday for applications to intervene in the case. (Edwin Hunter/CBC - image credit)
Chief Justice Marc Richard had set a deadline of 4:30 p.m. on Wednesday for applications to intervene in the case. (Edwin Hunter/CBC - image credit)

The New Brunswick Court of Appeal is set to hear arguments Friday on whether it can fix a legislative mistake by the Higgs government after no one filed to argue against the province's position.

Chief Justice Marc Richard had set a deadline of 4:30 p.m. Wednesday for applications to intervene in the case.

The court said late Wednesday that no one had applied.

Richard and two other members of a three-justice panel had set the hearing for next Monday but said if there were no intervener applications they would move it up to Friday.

The error, in legislation adopted last December, omitted a timeline for proclaiming the bill into law.

That meant by default that it took effect immediately, repealing child-protection provisions of the Family Services Act before replacement sections in a new Child and Youth Well-Being Act were in force.

The province said this put in doubt the legal status of child protection orders issued by the courts between Dec. 13 and Jan. 26.

The government is using its power under the Judicature Act to ask the court to answer two questions: whether the gap did, in fact, exist for 43 days, and, if so, whether the court has the power to "fill the gap in legislation."

Such reference cases do not lead to binding rulings, but the court's answers can serve as a guide for any Court of King's Bench justices who may hear applications to strike down a potentially invalid child protection order.