2012 NBCA 45, 2012 NBCA 45

COURT OF APPEAL OF NEW BRUNSWICK 14-12-CA PROVINCE OF NEW BRUNSWICK, as represented by THE MINISTER OF JUSTICE AND CONSUMER AFFAIRS (Respondent) APPELLANT PROVINCE DU NOUVEAU-BRUNSWICK, représentée par LA MINISTRE DE LA JUSTICE ET DE LA CONSOMMATION (Intimé

e) APPELANTE - and - - et - C.M. (Applicant) RESPONDENT C.M. (Requérant) INTIMÉ PROVINCE OF NEW BRUNSWICK, as represented by THE MINISTER OF JUSTICE AND CONSUMER AFFAIRS (Respondent) APPELLANT PROVINCE DU NOUVEAU-BRUNSWICK, représentée par LA MINISTRE DE LA JUSTICE ET DE LA CONSOMMATION (Intimé

e) APPELANTE - and - - et - P.M. (Applicant) RESPONDENT P.M. (Requérant) INTIMÉ Province of New Brunswick, as represented by the Minister of Justice and Consumer Affairs v. C.M. and P.M., 2012 NBCA 45 Province du Nouveau-Brunswick, représentée par la ministre de la Justice et de la Consommation c. C.M. et P.M., 2012 NBCA 45 CORAM: The Honourable Justice Robertson The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge Robertson L’honorable juge Quigg L’honorable juge Green Appeal from decisions of the Court of Queen’s Bench: November 17, 2011 Appel des décisions de la Cour du Banc de la Reine : Le 17 novembre 2011 History of Case: Historique de la cause :

Decisions under appeal: 2012 NBQB 36 2012 NBQB 37 Décisions frappées d’appel : 2012 NBBR 36 2012 NBBR 37Preliminary or incidental proceedings: Court of Appeal 2012 NBCA 45 [2012] N.B.J.

No. 93 (QL) (2012), (NB CA), 384 N.B.R.(2d) 357 Procédures préliminaires ou accessoires : Cour d’appel 2012 NBCA 45 [2012] A.N.-B. no 93 (QL) (2012), (NB CA), 384 R.N.-B. (2e) 357 Appeal heard and judgment rendered: May 9, 2012 Appel entendu et jugement rendu : Le 9 mai 2012 Reasons delivered: December 13, 2012 Motifs déposés : Le 13 décembre 2012 Reasons for judgment by: The Honourable Justice Green Motifs de jugement : L’honorable juge Green Concurred in by: The Honourable Justice Robertson The Honourable Justice Quigg Souscrivent aux motifs : L’honorable juge Robertson L’honorable juge Quigg Counsel at hearing: For the appellant: Michael L.

Hynes For the respondents: No one appeared for C.M. and P.M. Avocats à l’audience : Pour l’appelante : Michael L. Hynes Pour les intimés : Personne n’a comparu pour C.M. et P.M. THE COURT The appeal is allowed, and the orders for state-funded counsel are set aside. LA COUR L’appel est accueilli. Les ordonnances prescrivant laprestation de services d’un avocat rémunéré par l’Étatsont annulées. The judgment of the Court was delivered by GREEN J.A.

I. Introduction [ 1 ] These two related appeals consider when it is appropriate for a court to order the appointment of state-funded counsel for parties to a guardianship application. In companion decisions dated November 17, 2011, a judge of the New Brunswick Court of Queen’s Bench, Family Division, ordered the Province to provide the respondents, C.M. and P.M., with state-funded legal counsel in relation to an ongoing guardianship application. The Province, as represented by the Minister of Justice and Consumer Affairs, appealed both decisions.

At the conclusion of the hearing, we allowed the appeals, set aside the orders issued below, and indicated reasons would follow. Here are said reasons. II. Factual and Procedural Background [ 2 ] The underlying guardianship application involves two children. A.M. was born in 1999. The respondent C.M. is A’s biological father. H.M. was born in 2001. The respondent P.M. is H’s biological father. H.F. is the biological mother of both children. A. The Respondent C.M. [ 3 ] The respondent C.M. resided in Nova Scotia with his daughter A. and her mother H.F. from the time of A’s birth in May, 1999, until July, 2000.

He was present at the hospital when A. was born. During this fourteen month period, C.M. acted as a parent to A., and was involved in her day to day care. [ 4 ] Prior to the date of separation, the respondent C.M. and H.F. resided together for six years, during which time C.M. was “continuously on disability”. [ 5 ] When the respondent C.M. and H.F. separated, H.F. decided to move to Moncton, New Brunswick. H.F. took A. to live with her, while C.M. remained in Nova Scotia.

At the time of the hearing giving rise to this appeal, C.M. was residing in Amherst, Nova Scotia. [ 6 ] At the time of the Queen’s Bench hearing in September and October of 2011, C.M. had neither seen nor communicated with his daughter A. since July, 2000. [ 7 ] The application judge received evidence to the effect C.M. had attempted at one point in 2001 to initiate legal proceedings with respect to securing some level of custody of his daughter.

He was unable to afford to engage a lawyer to assist him, and consequently the matter did not proceed. [ 8 ] C.M. did not provide any financial support for A., and played no role in decision-making for his daughter, following July, 2000. [ 9 ] The application judge noted C.M. faced significant obstacles in locating his child, even though she and her mother were living relatively close by, albeit in New Brunswick rather than Nova Scotia. The application judge further noted C.M.’s lack of sophistication and financial resources. B.

The Respondent P.M. [ 10 ] The respondent P.M. and H.F. commenced a relationship in the summer of 2000, and began living together in August of that year. They continued to cohabitate, interrupted by brief periods of separation, until approximately June, 2002. During this period, the child A. resided with them, as did the child H. following her birth in June, 2001, and the respondent P.M. acted as a parent, and was involved in the day to day care of the children.

[ 11 ] In March or April, 2002, the family moved to Nova Scotia. The respondent P.M. had gone first, rented an apartment, and H.F. and the children joined him approximately one month later. The arrangement was short lived, and by June, 2002, the couple had separated, and H.F. returned to Moncton, New Brunswick, with the two children. [ 12 ] The respondent P.M. maintained contact with both H. and A. post-separation. The application judge stated P.M. “would see the children at least three or four times in the run of a month then ultimately once or twice a month”.

P.M. now has two other children with a new partner. [ 13 ] From the time of separation until October, 2003, the respondent P.M. resided in Nova Scotia. He then lived briefly in Moncton before returning to Nova Scotia in early 2004. Throughout this time, the children resided with their mother in New Brunswick. [ 14 ] In 2008, P.M. was convicted of a criminal offence and received a sentence of two and one half years’ incarceration. He was ultimately released in October, 2010. Visits and telephone conversations with the children continued. C.

The Guardianship Application [ 15 ] The Minister of Social Development filed a Notice of Application on November 15, 2010, seeking custody, care and control of A. and H. for a period of six months. Various interim custody orders were issued until May 15, 2011. [ 16 ] On May 13, 2011, the Minister of Social Development commenced an application seeking an order that guardianship of the children be transferred on a permanent basis to the Minister pursuant to subsection 56(1) of the Family Services Act , S.N.B. 1980, c.

F-2.2. [ 17 ] On June 7, 2011, a judge of the Court of Queen’s Bench, Family Division, issued an Interim Custody Order concerning the parental rights and obligations of H.F. and the respondent P.M. As a result, the custody, care and control of the children was transferred to the Minister pending the hearing of the application. With respect to the parental rights and obligations of the respondent C.M., the custody, care and control of the children was transferred to the Minister pending the next court appearance. [ 18 ] The next order was issued on June 21, 2011.

This order was with respect to the respondent C.M., and resulted in an Interim Custody Order in favour of the Minister pending the next court appearance. A similar order was issued on July 26, 2011. [ 19 ] On August 23, 2011, the application judge issued another Interim Custody Order, which included an order for a parenting capacity assessment of C.M. The custody, care, and control of the children remained with the Minister pending the next court appearance.

The application judge noted the respondent C.M.’s Legal Aid appeal had been denied, and that the respondent P.M. had yet to hear from Legal Aid with respect to his appeal.

The application judge then directed that a one-hour hearing take place prior to September 30, 2011, to consider applications for state-funded counsel from the respondents C.M. and P.M. [ 20 ] On September 7, 2011, a different judge of the Court of Queen’s Bench, Family Division, ordered with respect to C.M. that the custody, care and control of the children be transferred to the Minister pending the next court appearance. [ 21 ] Two thirty-minute hearings were set for September 30, 2011.

On September 27, 2011, the Clerk of the Court for the Judicial District of Moncton received notice the Minister of Justice and Consumer Affairs intended to intervene with respect to both hearings. [ 22 ] At the appearance on September 30, 2011, the respondents were advised their applications for

state-funded counsel were being contested.

The matter was adjourned until October 6, 2011, at which time the applications were heard. [ 23 ] The application judge considered the applicable law, the evidence before him, and the arguments advanced and concluded as follows: A person objectively assessing the State interference in question would certainly find this state action in relation to Mr. [C.M./P.M.] would cause a serious [and] profound effect on the psychological integrity of a person of reasonable sensibilities. [Trial Decision, para. 188 ( C.M. )] [Trial Decision, para. 192 ( P.M. )] […] I find that in the circumstances the failure of the Government of New Brunswick to provide a lawyer to the Applicant herein in relation [to] the Minister of Social Development[’s] Guardianship Application, would constitute an infringement of the Applicant’s rights pursuant to s. 7 of the […] Canadian Charter of Rights and Freedoms . [Trial Decision, para. 210 ( C.M. )] [Trial Decision, para. 228 ( P.M. )] […] The Province of New Brunswick will provide state funded legal counsel to Mr. [C.M./P.M.] in relation to the Minister[’s] Application herein for Guardianship. [Trial Decision, para. 211 ( C.M. )] [Trial Decision, para. 229 ( P.M. )] III.

Issues [ 24 ] The Minister of Justice and Consumer Affairs relies on four grounds of appeal, and alleges the application judge erred by: 1. Concluding a refusal to provide state-funded counsel to a party to a guardianship application may constitute an infringement of that person’s

section 7 Charter rights, if the individual in question has had no custody, or has only had custody in the past, of the child who is the subject of the application; 2. Including irrelevant factors in his analysis of whether refusal to provide state-funded counsel to a party to a guardianship application may constitute an infringement of that person’s

section 7 Charter rights; 3. Finding the potential granting of the guardianship application “would result in a serious and profound effect on the psychological integrity of a person of reasonable sensibilities given the respondents’ circumstances”; and 4. Ordering the provision of state funded counsel for P.M. in spite of his not meeting the definition of “parent” as set out in

section 1 of the Family Services Act . IV. Law and Analysis

A. Legal Framework and Prior Consideration by this Court [25] The law with respect to ordering state funded counsel in cases involving the state seekingcustody of a child was set out by the Supreme Court of Canada in New Brunswick (Minister of Health and Community Services) v. G.(J.), (SCC), [1999] 3 S.C.R. 46, [1999] S.C.J. No. 47 (QL). Chief Justice Lamer, as he then was, held: 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 aperson’s psychological integrity.

The effects of the state interference must be assessed objectively, with a view to their impact onthe 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. I have little doubt that state removal of a child from parental custody pursuant to the state’s parens patriae jurisdiction constitutesa serious interference with the psychological integrity of the parent.

The parental interest in raising and caring for a child is, as LaForest J. held in B. (R.), supra, at para. 83, “an individual interest of fundamental importance in our society”. Besides the obviousdistress arising from the loss of companionship of the child, direct state interference with the parent-child relationship, through aprocedure 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 oftenfundamental to personal identity, the stigma and distress resulting from a loss of parental status is a particularly seriousconsequence of the state’s conduct. [paras. 60-61] [Emphasis added.] [26] The Supreme Court has thus recognized the existence of a constitutional obligation on the partof the state to provide state-funded counsel to individuals, confronted with the prospect of having a child or children being taken intocare, finding themselves in the “particular circumstances” of Ms. “G”.

The Chief Justice went on to explain how the courts were to givepractical application to this obligation: As similar cases may arise in the future, I will briefly outline the procedure that should be followed when an unrepresented parent in acustody application seeks state-funded counsel. The judge at the hearing should first inquire as to whether the parent applied for legalaid or any other form of state-funded legal assistance offered by the province.

If the parent has not exhausted all possible avenues forobtaining state-funded legal assistance, the proceedings should be adjourned to give the parent a reasonable time to make the appropriateapplications, provided the best interests of the children are not compromised. It goes without saying that if the parent, whether or not heor she is able to pay for a lawyer, chooses not to have one that there will be no entitlement to state-funded legal assistance: seeRowbotham, supra, at p. 64.

This is because the parent voluntarily assumes the risk of ineffective representation, for which thegovernment cannot be held responsible. If the parent wants a lawyer but is unable to afford one, the judge should next consider whether the parent can receive a fair hearingthrough a consideration of the following criteria: the seriousness of the interests at stake, the complexity of the proceedings, andthe capacities of the parent. The judge should also bear in mind his or her ability to assist the parent within the limits of the judicial role.

If, after considering these criteria, the judge is not satisfied that the parent can receive a fair hearing and there is no other way to providethe parent with a lawyer (i.e., pursuant to a statutory power to appoint counsel), the judge should order the government to provide theparent with state-funded counsel under s. 24(1) of the Charter.

I hasten to add that I am limiting my comments here to child protectionproceedings, and need not and should not comment as to other kinds of proceedings. [paras. 103-104] [27] In the aftermath of that decision, Family Division courts in New Brunswick have frequentlyconducted what have become known as “G” hearings when an unrepresented party in a child protection matter, facing a Ministerialapplication for custody or guardianship of a child, requests the appointment of legal counsel paid for by the provincial government. Theprocedure outlined above is followed, and a determination is made.

However, the challenge which soon emerged was with respect to thebreadth of the constitutional obligation recognized in “G”: to whom does it apply? The answer is clear if the circumstances of the casemirror those considered by the Supreme Court in the “G” case: the Minister removes a child or children from the custody of the parentwho is providing day to day care. Such an individual falls squarely within the obligation. What then of other adults, somehowconnected with a child taken into care, who do not meet that threshold? [28] Our Court has had an opportunity to consider that question on more than one occasion.

Quigg

J.A. did so in New Brunswick (Minister of Social Development) v. T.S. , 2009 NBCA 67 , 351 N.B.R. (2d) 162 . The facts of that case involved an application for state-funded counsel from the great aunt (and her husband) of a child taken into care: Early in the “G” decision, Chief Justice Lamer concluded the Government of New Brunswick’s constitutional obligation to provide state-funded counsel arose pursuant to the “particular circumstances” of the “G” case.

That case concerned an indigent natural mother who faced the prospect of losing custody of her three children to the Minister of Health and Community Services. In this case, the Speights are not the natural or adoptive parents of the child in question and therefore do not fall squarely within the parameters of the “G” decision. This leads one to ask whether the Speights will be deprived of their s. 7 security rights if they are denied state-funded counsel. The answer has to be no. This is not to suggest that s. 7 comes into play only in cases involving natural and adoptive parents.

Rather this case establishes the general principle that s. 7 is not engaged in cases where the applicant for state-funded counsel is a non-custodial relative of the child. In my view, the fact that the Speights are non-parents is a critical but not necessarily determinative factor. In that regard, I turn to the definition of “parent” found in s. 1 of the Family Services Act , S.N.B. 1980, c. F-2.2: Family Services Act , S.N.B. 1980, c. F-2.2 “parent” means a mother or father and includes (

a) a guardian; and (

b) for purposes of Parts III, IV and VII, a person with whom the child ordinarily resides who has demonstrated a settled intention to treat the child as a child of his or her family; but does not include (

c) a foster parent; ( c.1 ) a prospective adopting parent with whom the Minister has entered into an agreement under the authority of

section 70.1; (

d) a natural parent or adopting parent whose rights with respect to the guardianship of the child have been terminated by a guardianship agreement or a guardianship order under

Part IV or who has been deprived of the status of guardian under subsection 3(1) of the Guardianship of Children Act ; or (

e) the natural father of the child who is not married to the mother of the child unless he has signed the birth registration form under

section 9 of the Vital Statistics Act or he has filed, with the mother, a statutory declaration under

section 105, or he has been named the father of the child in a declaratory order made under

Part VI or he is a parent within the meaning of paragraph (b); It is clear the Speights do not even qualify as parents within the extended meaning of parent as provided for under the above definition. I note that the definition includes a “guardian” and a person with whom the child ordinarily resides in circumstances where the person is treating the child as member of the family. Had the Speights, for example, qualified under the latter category, they could have argued that their s. 7 security interests were engaged.

But those are not the facts of our case. [paras. 12-13] [Emphasis added.] [ 29 ] The following year, Larlee J.A. considered the issue in J.R. v. New Brunswick (Minister of Social Development) , 2010 NBCA 81 , 365 N.B.R. (2d) 377 , in this instance with respect to non-custodial grandparents:

There does not exist, in Canada, a general constitutional right to counsel in civil proceedings before courts and tribunals (see NewBrunswick Legal Aid Services Commission v. Comeau and Comeau, 2009 NBCA 78 , 2009 NBCA 78, 351 N.B.R. (2d) 269, atpara. 11). New Brunswick (Minister of Health and Community Services) v. G.(J.), recognized an exception to this rule.

A custodial biologicalparent has a constitutional right to state-funded counsel in a child protection proceeding based on s. 7 of the Canadian Charter of Rightsand Freedoms: the right that protects life, liberty and security of the person and the right not to be deprived thereof except inaccordance with the principles of fundamental justice. In “G”, Chief Justice Lamer states: I have concluded that the Government of New Brunswick was under a constitutional obligation to provide the appellant with state-fundedcounsel in the particular circumstances of this case.

When government action triggers a hearing in which the interests protected by s. 7 ofthe Canadian Charter of Rights and Freedoms are engaged, it is under an obligation to do whatever is required to ensure that the hearingbe fair. In some circumstances, depending on the seriousness of the interests at stake, the complexity of the proceedings, and thecapacities of the parent, the government may be required to provide an indigent parent with state-funded counsel.

Where thegovernment fails to discharge its constitutional obligation, a judge has the power to order the government to provide a parent with state-funded counsel under s. 24(1) of the Charter through whatever means the government wishes, be it through the Attorney General’sbudget, the consolidated funds of the province, or the budget of the legal aid system, if one is in place. [para. 2] The Supreme Court explained that, in the context of child protection proceedings, when the state seeks to take custody of a child from hisparents, such an action threatens to restrict the custodial parent’s security of the person.

For a restriction of security of the person to bemade out, the impugned state action must have a serious and profound effect on a person’s psychological integrity (para. 60). The statemay only relieve a parent of custody when it is necessary to protect the best interests of the child, provided that there is a fair procedurefor making this determination (para. 70). As the Court points out, the concept of a fair hearing includes more than having a neutral andimpartial arbiter, it also requires effective participation by the parents.

Effective parental participation at the hearing is essential fordetermining the best interests of the child in circumstances where the parent seeks to maintain custody of the child. The best interests ofthe child are presumed to lie within the parental home. However, when the state makes an application for custody, it does so becausethere are grounds to believe that is not the case. A judge must then determine whether the parent should retain custody.

In order to makethis determination, the judge must be presented with evidence of the child’s home life and the quality of parenting the child has beenreceiving and is expected to receive. The parent is in a unique position to provide this information to the court. If denied the opportunityto participate effectively at the hearing, the judge may be unable to make an accurate determination of the child’s best interests. There isa risk that the parent will lose custody of the child when, in actual fact, it might have been in the child’s best interests to remain in his orher care (para. 73).

Consequently, the Supreme Court directs judges to consider what constitutes effective participation for a party whose security of theperson is threatened by the state action. If a judge concludes the parent does not need counsel, after assessing the complexity of theprospective proceedings and the abilities of the parent (and after considering the bounds of assistance a judge might be able to provide),then no order is required. This is because the hearing would be fair and the principles of fundamental justice met (at para. 86).

If,however, a judge concludes the parent cannot effectively participate without the assistance of a lawyer then an order for state-fundedcounsel is required. It should be noted that the “G” decision dealt only with custodial parents. In fact the word “parent” is used throughout the text of thedecision. […] The application judge referred to this Court’s decision and ratio in New Brunswick (Minister of Social Development) v. T.S. He tried todistinguish the case from the circumstances before him. In my respectful view, he erred.

In his attempt to distinguish the case law, and inhis attempt to establish a parallel between the word “parent” and “grandparent” in the “G” case, the application judge drafted five criteriadescribing a grandparent’s relationship to a grandchild. He suggests they are simply built on common sense and the experience ofeveryday life. It is not necessary to do a critical analysis of those criteria. It should be noted, however, the application judge did notanalyze any evidence with respect to a s. 7 breach of the Charter that related specifically to the grandparents in this case.

Rather hereferred generally to grandparents’ “obvious distress” should they lose the companionship of a grandchild. Not all the problems of the world are solved by logic and common sense. This case comes down to a question of statutory

interpretation:whether the grandparents fit within the definition of parent in the Family Services Act or, put another way, whether there is evidence thatthey stood in loco parentis with the child. The application judge’s finding on that point is clear. They do not. Once the application judgecame to that conclusion he could go no farther. These grandparents were not entitled to state-funded counsel in the context of the “G” orT.S. decisions. The ratio of the latter case is confirmed by this decision: s. 7 of the Charter is not engaged in child protection cases

where the applicant for state-funded counsel is a non-custodial relative of the child. [paras. 11-15 and 20-21] [Emphasis added.] B. The Application Judge’s Decision [ 30 ] The application judge considered the decision of the Supreme Court in “ G ” as well as the jurisprudence of this Court.

In response to the argument advanced by the Minister of Justice and Consumer Affairs, the judge came to the following conclusions: [The Minister] would say that if there is no custodial relationship there is no state funded counsel. [The Minister’s] position is that the “G” case and the two New Brunswick Court of Appeal cases and the New Brunswick QB decisions referenced have established clearly that there is a requirement for a custodial relationship.

I do not believe the Court of Appeal itself has made any such determination. […] In any event with respect I cannot conclude that the denial of state funded counsel solely on the basis of no previous custodial relationship alone is the test. [paras. 80-83] C. The Importance of the Custodial Relationship [ 31 ] My reading of the “ G ” decision suggests the remarks of the former Chief Justice were firmly rooted in the notion that an individual’s rights under s. 7 of the Charter are threatened when the state seeks the “removal of a child from parental custody”.

The stigmatization referred to in “ G ” flows from a parent being “relieved of custody”. The existence of custody played a central role in the Court’s analysis and subsequent decision. What, then, is meant by custody? [ 32 ] The Family Services Act does not provide a definition of “custody” per se, but the Act does provide

definitions of both “custody agreement” and “custody order” in s. 43 under

Part IV of the Act , said part being titled “Children In Care”. Both

definitions speak to the transfer of the “custody, care and control of a child”. Conceptually, “custody” in child protection matters initiated under this legislation is tied firmly to the legal responsibility for the care and control of the child in question. Similarly, the Act defines “guardianship order”, which is at the heart of the underlying application in this case, as involving the transfer of the “custody, care and control” of a child. [ 33 ] This is an opportune point to highlight the potential problem of focusing on “custody” in the absence of the “care and control” component. I refer to the wording employed in s. 129 of the Act , which reads as follows: 129

(1) Unless otherwise agreed by written agreement or unless otherwise ordered by the court, where the child has more than one parent, the parents jointly have custody of their child. 129

(1) Sauf convention contraire faite par écrit ou ordonnance contraire e la cour, la garde d’un enfant qui a plus d’un parent revient conjointement à ces parents.

[ 34 ] I believe it is clear the Supreme Court in “ G ” was not contemplating custody in this sense, but rather a notion of custody which reflected the realities of a child’s day to day life. What adult was responsible for the child’s well- being? With whom did the child reside? Who was expected to provide the child with the necessities of life? The answers to these questions provide a much more fulsome picture of custody, and are of critical importance to meeting the threshold for conducting a s. 7 Charter analysis pursuant to “ G ”. D.

Jurisprudence of this Cour t [ 35 ] The T.S. decision provides clear direction for the courts of the Province in applying “G” to requests for state-funded counsel in child protection matters: […] this case establishes the general principle that s. 7 is not engaged in cases where the applicant for state-funded counsel is a non- custodial relative of the child. […] [para. 12] [ 36 ] In my opinion, this decision (subsequently applied in J.R. ) firmly establishes the presumptive requirement that an individual seeking state-funded counsel to challenge state intervention in child protection cases of this nature must have been exercising custody, care and control of the child at the heart of the application.

To be even clearer, it must have been from that individual’s “custody” that the child was taken into care by the Minister. When the application judge held that our Court had not made any such determination, he fell into error, and opened the door to appellate intervention. It was for this reason I was convinced to join with my colleagues in allowing the appeal. Given the appeal was allowed on this basis, my consideration of the grounds of appeal need progress no further.

Specifically, I make no comment with respect to the ground of appeal which alleges C.M. does not meet the definition of “parent” and therefore could not qualify for state-funded counsel. [ 37 ] Recognizing that absolutism is often not entirely realistic in the challenging pantheon of family law, I accept there may be exceptional circumstances which could extend entitlement to state-funded counsel under the rubric of s. 7 of the Charter beyond the custodial individual or individuals with whom the child resides. Such cases would be rare.

For example, a parent who sees his or her child on a regular basis, who spends considerable time with the child, who provides aspects of care and control whilst with the child, who perhaps participates in the making of significant decisions with respect to the child’s health and/or education, and whose life is unquestionably interwoven with that of the child, may well qualify. Such is not the case with either of the respondents in this matter.

If the child plays no significant and meaningful role in the life of the applicant, and the applicant plays no significant and meaningful role in the life of the child, s. 7 is not engaged and the application for state-funded counsel must fail. [ 38 ] A final comment is in order. Care must be taken in these matters to not equate the word “parent” with only a biological or adoptive parent. As more fully set out in paragraph 27 of these reasons, s. 1 of the Family Services Act casts a wider net, and defines “parent” as follows: [38]

“parent” means a mother or father and includes (

a) a guardian; and (

b) for purposes of Parts III, IV and VII, a person with whom the child ordinarily resides who has demonstrated a settled intention to treat the child as a child of his or her family; « parent » désigne une mère ou un père et s’entend également

a) d’un tuteur; et

b) aux fins des Parties III, IV et VII, d’une personne avec laquelle l’enfant réside ordinairement qui a manifesté l’intention bien arrêtée de traiter l’enfant comme faisant

partie de sa famille; Let us then consider a situation in which a child ordinarily resides with a grandparent, an aunt, or uncle, and that person has “demonstrated a settled intention to treat the child as a child of his or her family”. In the event the Minister is seeking to remove a child from the custody of such a person, she or he should be entitled to the same consideration under “ G ” as a custodial biological parent. V. Disposition [ 39 ] For the reasons set out above, I agreed the appeals should be allowed with reasons to follow, and the orders for state-funded counsel should be set aside.

I would not order costs. ____________________________ BRADLEY V. GREEN, J.A. WE CONCUR: ______________________________ J.T. ROBERTSON, J.A. ______________________________ KATHLEEN A. QUIGG, J.A.