L.D. v. J.B., 2012 ABQB 693

Court of Queen ’ s Bench of Alberta Citation: L.D. v. J.B., 2012 ABQB 693 Date: 20121108 Docket: FL08 00653 Registry: Medicine Hat Between: L.D. and T-L.D. Appellants - and - J.B., K.C., and Alberta ( Child, Youth and Family Enhancement Act , Director) Respondents Restriction on Publication: Identification Ban – See the Child, Youth and Family Enhancement Act ,

section 126.2 . No one may publish the name or photograph of a child, or of the child ’ s parent or guardian, in a manner that reveals that the child is receiving, or has received, intervention services. NOTE: This judgment is intended to comply with the restriction so that it may be published. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.A. Jerke _______________________________________________________

Introduction [ 1 ] L.D. is V.’s mother. In January 2009 when V. was about 16 months old, she was apprehended and a Temporary Guardianship Order was granted to the Director designated under the Child, Youth and Family Enhancement Act , RSA 2000, c C-12 (the Director). J.B. and his mother K.C. immediately began proceedings under the Family Law Act , SA 2003, c F-4.5, for guardianship. An Interim Order was granted in March 2009 placing V. in the primary care of J.B. Seven months later an Interim Order for guardianship and day-to-day care of V. was granted to J.B. and K.C.

J.B. and K.C.’s application for permanent guardianship proceeded. L.D. resisted the application and sought to have V. returned to her care or to be placed in the care of her sister T-L.D. [ 2 ] J.B. and K.C. were granted permanent guardianship in May 2011, after about 30 days of trial. They have had primary day-to- day care of V. since March 2009. [ 3 ] L.D. appealed the Order granting J.B. and K.C. permanent guardianship, and I was appointed as Case Management Judge. [ 4 ] L.D. has filed parts but not all of the transcripts of the trial. She claims she cannot afford to pay for the transcripts.

L.D. applied to the Legal Aid Society for a Certificate covering legal fees on the appeal and the disbursements for the transcript. Legal Aid denied coverage. [ 5 ] No application for judicial review of the Legal Aid decision was made. [1] Instead, within her appeal L.D. made an application for an order directing Legal Aid to provide funding for legal representation on the appeal, and to provide coverage for disbursements, including the costs of the transcripts. [ 6 ] The Respondents to the appeal of the trial decision did not participate in the application.

Legal Aid is not a party to the appeal, but was named as Respondent to the application. No order has been granted adding Legal Aid as a party to the appeal or amending the style of cause. This is puzzling but Legal Aid counsel appeared, and no procedural irregularities were raised. [ 7 ] At the hearing Legal Aid resisted the application on substantive grounds. No argument was made that the ruling of Legal Aid should be challenged by judicial review.

No issue was taken with the proposition that in an appropriate case an Order of the nature sought could be granted. [ 8 ] No application was made against nor formal notice given to the Attorney General prior to the chambers hearing. After the hearing L.D. notified the Attorney General that the hearing had taken place and that I had directed the parties to file written briefs. Her notice also included service of all the materials which had been filed on the application.

The Attorney General has since filed a “Written Argument of the Intervenor” in which it contends that if funding is warranted, the order should be directed to the Attorney General, not Legal Aid. [ 9 ] Legal Aid now also contends there is no authority to make an order against Legal Aid, and any order should be directed against the Attorney General. [ 10 ] L.D. has since filed an amended application which seeks an Order directing the Minister of Justice and Attorney General for Alberta to provide funding for legal counsel and disbursements. [ 11 ] I agree that if an Order is granted on this application it can and should be directed to the Attorney General, not Legal Aid, despite the various procedural irregularities. [ 12 ] For the reasons which follow I dismiss L.D.’s application.

I have determined that L.D.’s appeal is unlikely to succeed. She is not entitled to state funded counsel on the appeal, and she is not entitled to have the state pay the costs of the transcripts.

Issues [ 13 ] A determination of this application raises consideration of six questions. 1. On an appeal of a Guardianship Order, when may an appellant parent who previously had custody of the child be entitled to representation by state-funded counsel? I conclude that an appellant parent may be entitled to be represented by state-funded counsel when the parent’s life, liberty or security is at stake as a result of government action, and the appeal is meritorious. The appellant parent must also show that she has exhausted all other avenues for obtaining legal counsel.

A Court may then order state-funded counsel after considering the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent. 2. Has the appellant shown that her life, liberty or security are at stake as a result of government action? I conclude that the appellant has shown that her life, liberty or security are at stake as a result of government action. 3 . Has the appellant shown that the appeal is meritorious? I conclude that the appeal has little chance of success and that the appellant has not shown that it is meritorious. 4.

Has the appellant shown that she has exhausted all other avenues for obtaining legal representation? It is not necessary for me to answer this question. 5. Should the Court exercise its discretion and order state-funded counsel based upon the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent? Although it is not necessary for me to decide this question to determine the application, I would not be prepared to exercise my discretion to order state-funded counsel in the circumstances of this case. 6.

If an Order is not granted directing the state to fund counsel, should an Order be granted directing the state to cover transcript fees? There is no automatic right to state-funded transcripts on appeal. L.D. has not shown the appeal is meritorious, so she is not entitled to state-funded transcripts on appeal. Analysis

(1) On an appeal of a Guardianship Order, when may an appellant parent who previously had custody of the child be entitled to representation by state-funded counsel? [ 14 ] To answer this question it is necessary to consider the entitlement to state-funded counsel in the criminal and family law spheres. I conclude that an appellant parent may be entitled to be represented by state-funded counsel when the parent’s life, liberty or security is at stake as a result of government action, and the appeal is meritorious.

The appellant parent must also show that she has exhausted all other avenues for obtaining legal counsel. A Court may then order state-funded counsel after considering the seriousness of

the interests at stake, the complexity of the proceedings, and the capacities of the parent. [15] Even outside the Legal Aid process, the principles concerning the provision of state-funded legal counsel for persons chargedwith criminal offences are well established. An order for funding may be granted if the Court concludes that representation of theaccused by counsel is essential to a fair trial, and a Court may stay proceedings until the necessary funding is provided: R v Rowbotham,(1988) (ON CA), 41 CCC (3d) 1.

If the Court concludes that representation of the accused by a particular counsel at anenhanced rate of compensation over the Legal Aid rate is essential to a fair trial, such an order can also be granted: R v Fisher, [1997] SJNo 530, 1997 CarswellSask 821. [16] The principles concerning state-funded counsel for appeals of criminal matters are also settled. The Alberta Court of Appealfound that while an appellant may be statutorily entitled to counsel pursuant to s. 684 of the Criminal Code, that right is not absolute. In R v Morehouse, 2005 ABCA 336 at para 2, Paperny, J. stated: ...

Under s. 684, the applicant must show he cannot afford a lawyer and that it is in the interests of justice that he should have legalassistance. To be in the interests of justice, he must show that there is merit to the appeal: R v Robinson (1989), 1989 ABCA 267, 51 C.C.C. (3d) 452 (Alta.

C.A.), or, that the appeal is arguable: R v Bernardo (1997), (ON CA), 121 C.C.C.(3d) 123 (Ont C.A.). [17] In family law matters, the leading case on state-funded counsel is New Brunswick (Minister of Health and CommunityServices) v G(J), (SCC), [1999] 3 SCR 46 (referred to as “G(J)”). [18] In G(J), Lamer, J. noted that parents have a vital interest in their relationship with their children, and this interest is entitled toprotection under s. 7 of the Charter as an aspect of “security of the person”. When the Government removes a child from parentalcustody, the parent becomes a respondent to government action.

As the Charter applies to the government of Canada and thegovernments of the Provinces, this government action may be a potential infringement of the parent’s rights. [19] Lamer, J. ruled that when the government action creates a potential infringement of s. 7 rights, then the government has anobligation to ensure that the hearing which may lead to the removal of the children is conducted in accordance with the principles offundamental justice, which include ensuring that the hearing is fair.

This is the situation in which the Court can order the government toprovide a parent who wants a lawyer, but is unable to afford one, with state-funded counsel. The obligation to provide counsel may arise“depending on the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent”: G(J), at para2. [20] G(

J) concerned the government’s obligation to provide counsel at the trial level. No case has been cited where state-fundedcounsel was ordered for an appeal of a guardianship/custody dispute. Such an application was made in RAF v Department of Justice,2003 SKQB 507, where the father was appealing an Order permanently committing children to the care of the government. The fatherbrought an application for state-funded counsel.

In dismissing the application, the Court found that in the case of an appeal, anappointment, “... should not be made unless there is at least some demonstrated or arguable legal ground to support the appeal; somechance of success --- some basic merit to the appeal” (para 7). [21] I conclude that on an appeal of a guardianship order, there are several steps to be met by an appellant parent who haspreviously had custody of the child. There are three threshold requirements.

The first is that the appellant must show that his/her life,liberty or security are at stake as a result of government action. [22] The second is that the appellant must show he/she has exhausted all other avenues for obtaining legal representation, and thatstate-funded counsel is the only remaining opportunity. This is set out in G(

J) at para 103: ... The judge at the hearing should first inquire as to whether the parent applied for legal aid or any other form of state-funded legalassistance offered by the province. If the parent has not exhausted all possible avenues for obtaining state-funded legal assistance, theproceedings should be adjourned to give the parent a reasonable time to make the appropriate applications, provided the best interests ofthe children are not compromised.

It goes without saying that if the parent, whether or not he or she is able to pay for a lawyer, choosesnot to have one that there will be no entitlement to state-funded legal assistance: see Rowbotham, supra, at p. 64. This is because theparent voluntarily assumes the risk of ineffective representation, for which the government cannot be held responsible.

[ 23 ] The third threshold requirement is that the appellant must show that the appeal is meritorious. [ 24 ] If the appellant meets the three threshold requirements, the Court then exercises its discretion to decide whether the appellant should be granted state-funded counsel. The discretion is exercised based upon the judge’s assessment of the following factors: the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the appellant.

(2) Has the appellant shown that her life, liberty or security are at stake as a result of government action? [ 25 ] I conclude that the appellant has shown that her life, liberty or security are at stake as a result of government action. [ 26 ] In the Provincial Court, the Director brought an application for permanent guardianship of V. The Trial Judge stated: 215 Counsel for the Director made it clear that if the guardianship applications of JB and KC were granted, then it would discontinue its application for a Permanent Guardianship Order.

Given that stance, I consider the Director's application withdrawn. [ 27 ] After the trial decision, L.D. appealed the granting of permanent guardianship to J.B. and K.C. The Director was named as a Respondent. L.D. later contended at a Case Management Meeting that the Director should not participate in the appeal proceedings. [ 28 ] I granted an Order confirming the Director as a Respondent party in the Appeal. On an Appeal of my Order, the Court of Appeal stated: 3 The first order under appeal makes the Director of Child, Youth and Family Enhancement a party to the appeal.

When competing private guardianship applications were commenced, the Director initiated a cross-application for a Permanent Guardianship Order in case the private applications were all dismissed. When one of the private applications was granted, he withdrew his application, and that withdrawal is recorded in the order under appeal. Theoretically at least, that application might be revived depending on the results of the appeal. Whether the Director is entitled to any relief is not the issue.

It was not unreasonable for the case management judge to conclude that the Director, who was a party at the trial level, had a meaningful interest in the outcome of the appeal. No reviewable error is shown. LKD v JB , 2012 ABCA 72 [ 29 ] Both Legal Aid and the Attorney General argue that this appeal is a private custody dispute and there is no government involvement, so the Charter is not engaged and L.D. does not meet the threshold to apply for state-funded counsel.

The Attorney General characterizes the Director ’s involvement as “contingent” because the Director will only be asking for a permanent guardianship order if the appeal is successful. [ 30 ] In G(J) , Lamer, J. did not state that it was the degree of government involvement in the immediate hearing that triggered the government’s potential obligation to fund counsel.

Rather, he focussed on the overall effect of the government’s action on the parent’s psychological integrity: 60 For a restriction of security of the person to be made out, then, the impugned state action must have a serious and profound effect on a person’s psychological integrity. The effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility.

This need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety. 61 I have little doubt that state removal of a child from parental custody pursuant to the state’s parens patriae jurisdiction constitutes a serious interference with the psychological integrity of the parent. The parental interest in raising and caring for a child is, as La Forest J.

held in B.(R.) , supra , at para. 83, “an individual interest of fundamental importance in our society”. Besides the obvious distress arising from the loss of companionship of the child, direct state interference with the parent-child relationship, through a procedure in which the relationship is subject to state inspection and review, is a gross intrusion into a private and intimate sphere. Further, the parent is often stigmatized as “unfit” when relieved of custody.

As an individual’s status as a parent is often fundamental to personal identity, the stigma and distress resulting from a loss of parental status is a particularly serious consequence of the state’s conduct. [ 31 ] The private guardianship application brought by J.B. and K.C. only arose after the Director apprehended V. from L.D.’s care. The basis for the apprehension was L.D.’s fitness to parent. The Director’s concern over L.D.’s fitness to parent led it to obtain a temporary guardianship order.

The Director’s active opposition to L.D.’s desire to provide day-to-day care to her child continued throughout the proceedings as the Director maintained its application for a permanent guardianship order and actively supported the guardianship application of J.B. and K.C. The Director sought to retain party status here because it remains interested in the outcome of the appeal.

If the appeal is successful, the Director will intervene because it has concerns about L.D.’s ability to parent V. [ 32 ] The Director ’s involvement is not properly characterized as “contingent”’; due to its continuing status as a party to these proceedings and the powers given to it under the Child, Youth and Family Enhancement Act , the state is still characterizing L.D. as an unfit parent, and has the power to prevent her from regaining custody of her child. [ 33 ] Further, the Director ’s stance that L.D. is an unfit parent is a distressing label for her to bear in our society.

I find the Director’s continued involvement constitutes a serious potential infringement of L.D.’s psychological integrity. She meets the first threshold to apply for state-funded counsel.

(3) Has the appellant shown that the appeal is meritorious? [ 34 ] On my review of the decision of the Trial Judge and the issues raised on appeal, I conclude that the appeal has little chance of success. I find the appellant has not established that the appeal is meritorious. [ 35 ] The issues on appeal have been clarified in the Case Management Conferences, and are now stated as follows: (

A) Whether the Trial Judge’s finding that L.D. was an unfit mother is a proper finding. (

B) Whether the Trial Judge’s finding that V.’s best interests are with J.B. and K.C. is a proper finding. (

C) Whether the Trial Judge’s finding that L.D. should not have parenting time is a proper finding. (

D) Whether the Trial Judge’s findings (as listed above) were proper findings based on what constitutes admissible evidence only. (

E) Whether the Provincial Court had jurisdiction to engage s. 23 of the Family Law Act . (

F) Whether J.B. and K.C. had legal standing to apply for guardianship. (A and

B) Whether the Trial Judge ’s finding that L.D. was an unfit mother is a proper finding; and Whether the Trial Judge ’s finding that V. ’s best interests are with J.B. and K.C. is a proper finding [ 36 ] Both of these grounds of appeal allege errors by the Trial Judge on findings that are findings of fact, or mixed law and fact. The standard of review is therefore deferential, meaning the appellant must show that the Trial Judge was under a “significant

misapprehension of the evidence”, was “clearly wrong”, or committed a “material error”: Hickey v Hickey, (SCC),[1999] 2 SCR 518, MacKinnon v Harrison, 2011 ABCA 282, and OVE v IPE, 2011 ABQB 758. [37] In assessing L.D.’s fitness to parent, the Trial Judge devoted several pages to considering L.D.’s physical and mental healthhistory, her decision to remove V. from J.B.’s home, her use of marijuana, her behaviour in court, and her history of conflict andinstability. The Trial Judge assessed the credibility of various witnesses. She reached some conclusions on discrete points of theevidence as part of this review, and then provided a

summary which set out her overall conclusions: 187 On the basis of all of the evidence heard, I find that it is not in the best interests of V that she be returned to the care of LD. LDposes an ongoing risk to the child’s physical, psychological and emotional safety. Given the mental, emotional and physical difficultiesLD faces which have been apparent in Court and attested to by witnesses, it is unlikely that she could meet the needs of V includingstability, safety and V’s general well-being.

It is apparent that LD has a tendency to come into conflict with others and she has shown anunwillingness to cooperate in Children’s Services’ plans for V’s care. She has expressed a lack of respect for the justice system andgovernment authority and would be unlikely to comply with any court order that is not in her favour. If she were to have V returned toher care, she would have no regard for the obvious relationship that has grown between V, JB and KC, and is unlikely to comply with acourt order that gave them contact with V. She is unable to put V’s needs before her own.

LD has not provided evidence of any stabilityin her life and little evidence has been given to assure this Court that V would even have a stable residence if placed with LD. [38] L.D. now attempts to challenge this conclusion by picking apart individual pieces of evidence, arguing that the Trial Judgeerred by emphasizing certain parts of the evidence which presented L.D. in a less positive light. She also argues that there were otherparts of the evidence which were more beneficial to L.D. but omitted from the Trial Judge’s analysis. [39] I do not agree that this constitutes a meritorious argument on appeal.

First, individual facts are to be examined in the contextof the evidence as a whole, not separately or in isolation, as is done in L.D.’s argument. Secondly, the trial decision does not preferevidence which casts L.D. in a negative light over that which casts her in a positive one. The Trial Judge conducted a full review of theevidence adduced on each topic, then weighed and evaluated that evidence to reach an overall conclusion.

The weighing and evaluatingof evidence lies fully within the ambit of the Trial Judge’s role, and when carried out in a thorough and complete manner, as appears tohave been done here, attracts a large measure of deference. In my view, the Appellant’s likelihood of success on this issue is remote. [40] The Trial Judge found that V.’s best interests are to be with J.B. and K.C. L.D. contends that, “V’s best interest [sic] are to bewith willing and able family as opposed to JB and KC.” This is an opinion, not an argument. It is not the test to determine what is in thebest interests of a child.

The Trial Judge takes the correct approach. She appears to examine the evidence, then states her overallconclusions at paras 205 to 210. I find that the same thorough review appears to have been engaged in by the Trial Judge as with the firstground of appeal, and is thus owed a high degree of deference. Because of this, L.D.’s likelihood of success on this issue is remote. (

C) Whether the Trial Judge’s finding that L.D. should not have parenting time is a proper finding [41] L.D.’s appeal on this point is moot. At this point, and even if the appeal is dismissed, L.D. retains the right to seek parenting time based on a change of circumstances in reference to V.’s best interests.[2] [42] The Trial Judge’s decision, particularly paragraph 213, does not deal with L.D.’s right to have parenting time, but in light ofthe history of the matter, addresses how parenting time could be recommenced.

It is expected that the Trial Judge’s observations aftersuch a thorough experience with the evidence in this case would be important. [43] In my view, the Appellant’s likelihood of success on this issue is remote. (

D) Whether the Trial Judge’s findings were proper findings based on what constitutes admissible evidence only [44] L.D. did not provide any comment on what constituted the inadmissible evidence, claiming that she is unable to give

particulars until she has the transcripts, and she needs more time. [ 45 ] L.D. has some portions of the transcripts, as she has referred to them on the other grounds of appeal. The counsel assisting her in this application was also counsel at trial. L.D. must have some rationale for having included this as a ground of appeal. To now state additional time is needed to set out why this ground of appeal is meritorious is not sufficient. L.D. bears the onus, and she has failed to show there is any merit to this ground of appeal. (

E) Whether the Provincial Court had jurisdiction to engage s. 23 of the Family Law Act [ 46 ] This issue raises a question of law, and the standard of review is correctness. [ 47 ] At the time J.B. and K.C. filed their applications for guardianship under the Family Law Act , it was assumed that J.B. was V.’s biological father. By the time the trial commenced, it had been determined that he was not.

Accordingly, one of the trial issues was whether J.B. and K.C. should be named as guardians to V. based upon the applications for guardianship which they had originally filed. [ 48 ] L.D. argues that because at the time of their guardianship applications neither J.B. nor K.C. were parents of V., nor had care and control of V. for more than six months, neither had any standing to bring a guardianship application.

Therefore, she argues that the Trial Judge had no jurisdiction to grant either J.B. or K.C. permanent guardianship. [ 49 ] Section 23(5) of the Family Law Act provides as follows: If it is satisfied that there are good and sufficient reasons for doing so, the court may waive the requirement ... (

b) in the case of an application under subsection (1)(a), that the applicant has had the care and control of the child for a period of more than 6 months. [ 50 ] L.D. argues s. 23(5) (

b) means that the Court can only shorten the care and control period, not dispense with it entirely. [ 51 ] The requirement referred to in s. 23(5)(

b) is that “the applicant has had the care and control of the child for a period of more than 6 months”. There is one requirement, not two. A Court may waive this requirement provided the facts establish a good and sufficient reason for doing so. Sometimes it will be the case that the applicant has had care and control for a period of less than six months, and in some cases has not had care and control at all prior to the application. That fact must be considered together with the other facts of the case, and a determination made whether all the facts show a good and sufficient reason for waiving the requirement.

In my view, and on a plain and ordinary reading of the section, L.D.’s argument has no hope of success. [ 52 ] My view is consistent with other provisions of the Act, particularly s. 23(6), which permits the Court to appoint a guardian without any “care and control” precondition: Subject to the regulations, the court may at any time on its own motion make a guardianship order appointing a guardian of a child, other than a director under the Child, Youth and Family Enhancement Act , to act with another guardian of the child in accordance with section 21(2) . [ 53 ] L.D. contends there is case law which supports her argument, and refers to K(

R) v Alberta ( Director , Child, Youth and Family Enhancement Act) , 2008 ABPC 25 .

[ 54 ] K(

R) does not support L.D.’s position. Paragraphs 26 and 29 actually support the

interpretation that the entire care and control period can be waived, and paragraph 30, not referred to in L.D.’s brief, explicitly acknowledges that there are situations where a guardianship application can be successfully brought under the Family Law Act even where there has been no care and control exercised by the applicant. [3] [ 55 ] Based upon a plain reading of the statute in question and the relevant case authority, I find that this ground of appeal has little chance of success, and lacks merit. (

F) Whether J.B. and K.C. had legal standing to apply for guardianship [ 56 ] This issue also raises a question of law, and the standard of review is correctness. [ 57 ] J.B. and K.C. had standing to apply for guardianship when the Court waived the condition in s. 23(5) (b). An alternative basis to establish legal standing was also proposed, namely, that J.B. or K.C. stood in loco parentis to V. Once the Trial Judge waived the care and control period to give J.B. and K.C. standing to apply for guardianship she did not need to address the loco parentis argument.

However, she decided to address this argument in the alternative, and found that J.B. was in loco parentis . L.D. now argues that the Trial Judge erred in law in doing so. [ 58 ] It is not necessary for me to consider this issue. As Legal Aid correctly points out, because this finding was made in the alternative, even if this ground has merit that does nothing to give merit to the overall appeal. Because I have found there is no merit on the first ground, having a successful appeal on this second ground cannot affect the outcome of the appeal.

(4) Has the appellant shown that she has exhausted all other avenues for obtaining legal representation? [ 59 ] Issues have been raised with respect to whether L.D. meets the test of impecuniosity set out in G(J) , particularly since she has been represented by legal counsel, without Legal Aid funding, throughout this case management process. Given the lack of evidence on L.D.’s fee arrangement with her counsel, and my findings on the appeal’s merits, I find it unnecessary to address this matter.

(5) Should the Court exercise its discretion and order state-funded counsel based upon the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent? [ 60 ] Though it is not necessary for me to decide this question to determine this application, I am not prepared, in these circumstances, to exercise my discretion to order state-funded counsel. [ 61 ] There is no question of the seriousness of the interests at stake; if L.D. is unsuccessful in her appeal, J.B. and K.C. retain guardianship and day-to-day care over L.D.’s daughter. [ 62 ] As to the complexity of the proceedings and the capacities of the parent, L.D. has testified and made representations before me.

She seems well aware of the proceedings, the issues, and her own interests. She has demonstrated a reasonable capacity in proceedings before me. The appeal has been made less complex by clarification of the issues. Case management is in place. In light of those factors, and bearing in mind the assistance the Court can properly provide, and the role of a Judge on appeal, I am of the view that L.D. does not require counsel to ensure she receives a fair hearing.

(6) If an Order is not granted directing the state to fund counsel, should an Order be granted directing the state to cover transcript fees?

[63] The Attorney General has suggested that the granting of an order for state-funded counsel would, out of necessity, includefunding to cover disbursements incidental to the conduct of the matter, such as the costs of the transcripts. However, L.D. argues thateven if she is not successful in obtaining state-funded counsel, the state should still be compelled to pay the transcript fee.

It is thereforenecessary to consider the test for state funding of transcripts. [64] In criminal appeals, our Court of Appeal has clearly stated that the transcripts can never be demanded as of right: ... unless there is entitlement to it by statute, or the payment of the fee for its preparation, that transcript has never been given to aconvicted appellant upon his demand. If legal aid (including that available under

section 684) is declined, the appellant remainsresponsible for the cost. To urge otherwise, as a principle of fundamental justice, is not historically supportable. R v Robinson, (1989), 1989 ABCA 267 , 100 AR 26 [footnotes omited] [65] The application for an order for free transcripts required to perfect an application for leave to appeal to the Supreme Court ofCanada was dismissed in TD Bank v Beaton, 2012 ABQB 125.

The Court found that it must decline to waive court fees not only, “wherethe claim is frivolous, vexatious or an abuse of process, but it must also decline to intervene unless the applicant has established ameritorious claim”: para 20. [66] L.D. could choose to abandon the factual issues and restrict her appeal to the pure questions of law. If she did, the transcriptsare not necessary. [67] As there is no automatic right to state-funding for transcripts and L.D. has failed to show that the appeal is meritorious, thefunding application for transcripts is dismissed.

Conclusion [68] While L.D.’s life, liberty or security are at stake as a result of this appeal, it is unlikely to succeed. She is not entitled to state-funded counsel on the appeal, and she is not entitled to have the state pay the costs of the transcripts. Her application is dismissed. [69] L.D. has invested significant resources in the trial, and in various applications. It may be that her resources would be morewisely applied to addressing the issues which lie at the root of the problems she is experiencing. [70] Costs may be spoken to. Heard on the 23rd day of May, 2012.

Dated at the City of Lethbridge, Alberta this 7th day of November, 2012.

R.A. Jerke J.C.Q.B.A. Appearances: Magnan Law Office Genevieve Magnan for the Applicants Bolton Bishop Jonathan P. Tieman for The Legal Aid Society of Alberta Alberta Justice - Civil Litigation Peter Barber for the Intervener The Attorney General of Alberta [1] See R v RJH , 2006 ABQB 656 , where the possibility of Judicial Review of Legal Aid decisions is discussed. [2] Counsel for V., during the Case Management process, advised that a change of circumstances may include the following: 1. Participation by L.D. in psychological and parenting abilities assessment. 2. Participation in psychological counselling. 3.

Completion of an anger management program. 4. Attendance at a drug treatment program. 5. Abstinence from the daily use of illegal drugs. [3] M(

P) v D(SL) , 2007 ABQB 99 , paragraphs 78 and 79 , and F(A) , Re , 2009 ABCA 25 paragraph 14 , both imply that dispensation of the entire care and control period, not just a portion of it, is a power properly exercised by a trial judge. The basis for this is the need for the Family Law Act process to be flexible in order to counter the rigid Child, Youth and Family Enhancement Act process, thus ensuring that the Court has the flexibility to appoint the person who has the child ’ s best interests at heart, regardless of their ability to meet technical legislative requirements: para 75, K(R) , para 79 , M(P) , and paras 16 and 33 , F(A) .