THE MINISTER OF SOCIAL DEVELOPMENT Applicant v. D.O. and C.J., 2022 NBKB 212

2022 NBKB 212 COURT FILE: FDSJ 333-2020 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF SAINT JOHN BETWEEN: THE MINISTER OF SOCIAL DEVELOPMENT Applicant and D.O. and C.J. Respondents Before: Mister Justice Danys R. X. Delaquis Date of hearing: October 14, 2022 Date of Decision: November 8, 2022 Appearances: Corry Toole, K.C. - for the Applicant D.O. - Per Se Mylène Hendriks - for Attorney General C.O. - did not attend

SUMMARY: State-Funded Counsel – “G” Hearing DECISION

DECISION DELAQUIS, J.: BACKGROUND [ 1 ] The Respondent, D. O., (hereinafter referred to as the “Mother”), is the biological mother of the child, A.J. (DOB: (…) 2014), who is currently 8 years old (“the child”). [ 2 ] On April 8, 2022, Madam Justice Daigle, after a 10-day trial, granted a Protective Intervention Order (“PIO” Order) vis-à-vis the Mother, for a period of 12 months, commencing September 3, 2021. Justice Daigle’s Decision provided very detailed reasons for granting the PIO Order. [ 3 ] In

summary, the PIO Order was granted on conditions that the Mother refrain from any contact or association with the child except as approved by the Minister, that she would have supervised access to the child as deemed appropriate by the Minister and, lastly, that she would refrain “from taking the child to any hospital, clinic, doctor, or any other medical professional for a physical exam, unless accompanied by representative of the Department of Social Development”. [ 4 ] In anticipation of Justice Daigle’s Protective Intervention Order expiring, the Minister of Social Development filed an Application on August 23, 2022, seeking to extend the PIO for a period of 12 months pursuant to sections 58 and 60(2) of the Family Services Act S.N.B. 1980, c.F-2.2 (“the Act ”).

The Minister also requested that an Interim Protective Intervention Order be issued pending the final decision of the Application, pursuant to Rule 73.15 of the Rules of Court and subsection 58(4.1) of the Act . [ 5 ] At the first appearance on September 1, 2022, the Respondent, C.J., who is the biological Father of the child, consented to the Minister’s Application. However, the Mother advised the Court that she objected to the Application and would be applying to legal aid to defend the matter. [ 6 ] As a result, the Court adjourned the matter to provide the Mother with time to obtain counsel.

The Court also issued an Interim Protective Intervention Order pursuant to section 58(4.1) of the Act pending the disposition of the Application. [ 7 ] On September 26, 2022, the Mother filed a Notice of Motion, along with a voluminous Affidavit, to request that state-funded counsel be appointed to represent her in the Minister’s Application to extend the PIO Order for a further 12 months. [ 8 ] At the Case Management Conference on September 29, 2022, the Court therefore ordered that the matter be set for a “G” hearing. [ 9 ] On October 7, 2022, the Mother filed a further lengthy Affidavit setting out, among other things, a “list” which states when the child saw various health care professionals concerning allegations of sexual abuse. [ 10 ] The “G” Hearing took place on October 14, 2022, after which the Court reserved its decision.

FACTS [ 11 ] I will not summarize in detail the voluminous affidavit evidence submitted by the Mother for the purposes of this decision because most of this evidence does not relate to the issue before the Court, which is whether the Mother is entitled to state-funded counsel. Much of the affidavit evidence submitted by the Mother restates and summarizes the evidence, especially the medical evidence, that was before Madam Justice Daigle during the 10-day trial. [ 12 ] The same rationale applies to the Affidavit filed by the Mother on August 31, 2022.

Paragraphs 3-6 of that Affidavit relate to the Mother’s desire to subpoena various records from different sources including, for example, the Saint John Regional Hospital (paragraph

3) and the Fredericton Police Station (paragraph 4). In paragraph 6 of her Affidavit, she makes the following additional request: I am requesting for the courts to order for the previous trial transcripts to be presented as necessary to prove what was said in the testimonies to be true. I am requesting this to be presented as included for legal appointment during the G hearing as well. Transcripts will cost $7-9000 and that is money that I do not have.

They are already in the process of being typed due to the previous Social Development decision being appealed, I am seeking legal counsel for this as well. several witnesses testified to the sexual abuse at the trial. [ 13 ] Paragraphs 7 to 75 of the same Affidavit relate to the Mother’s response to the Minister’s Application with reference to various medical evidence and other testimony and evidence presented at the trial. Paragraph 76 attaches 48 Exhibits, which the Mother says, “prove the submissions I have stated to be true (…)”.

These Exhibits include other Affidavits for multiple other individuals, medical reports, Hospital Records, and transcripts of meetings. [ 14 ] Even during her oral testimony at the hearing, the Mother stated emphatically that for the past eight years, she has been fighting to prove that the child was sexually abused by the Father. Again, that is not the issue I must decide in this Motion. [ 15 ] The Mother currently lives with friends and has undertaken to pay rent of $750 per month. Prior to moving in with friends very recently, she rented an apartment but suffered a mental breakdown in July 2022.

Her past mental health issues involved what she described as a drug induced psychotic state. As a result, she was not able to pay rent and was therefore given a Notice to Vacate. [ 16 ] The Mother has not worked since June 2022. Her work history includes working as kitchen staff earning $12.75/hour, but that employment only lasted two weeks. Before that she worked for an unknown duration at Canadian Tire in the parts department. She has no savings and no vehicle.

She testified that she has been involved in several motor vehicle accidents. [ 17 ] Her debts include court costs of $4,000, CERB taxes of $1,300, $550 in credit card debt, phone bill of $70 per month, an Easyhome loan of $100 per month, in addition to the cost of obtaining transcripts for her appeal of Justice Daigle’s decision in the amount of $3,500. She did receive a “back payment” for EI benefits, but testified that she applied the entire amount to her current debt.

The Mother estimates her current debt level at about $10,000-$12,000. [ 18 ] However, the Mother started new employment approximately one- and one-half weeks ago, working 32 to 35 hours per week as a mechanic. Although she expects to earn about $1,800 per month, she has not yet received her first paycheck. [ 19 ] The Mother testified that she's been to court many times before and, in fact, over the last eight years on family related matters without a lawyer. However, she confirmed that she was appointed state-funded counsel to represent her in the trial before Madam Justice Daigle.

More specifically, solicitor Richard Northrup represented her at that trial. [ 20 ] The Mother testified that she has a severe learning disability, as well as other medical issues, including mental health issues such as PTSD and an anxiety disorder. The medication she takes causes “mental fogginess”. [ 21 ] She testified that from April 26, 2020 to present, she has only had supervised visits with the child, two hours per visit, two days per week, on Tuesday and Thursday. She takes the child for walks, goes to the park, and plays board games.

The supervised visits take place in Sussex. [ 22 ] The Mother does not have any decision-making authority with respect to the child. She testified that the Father is supposed to inform her of the child's development but does not do so. The Father is solely responsible for the child's well-being. The child has resided with the Father for at least two years. In addition, the Mother confirmed that the Father provides all the child's necessities, and that she provides none.

The Mother however testified that she did have “custody” of the child from the moment of her birth until that right was “taken away” on April 26, 2020. [ 23 ] In cross-examination, the Mother did not dispute that a PIO has been in place since September 9, 2021. The visits are only when allowed by the Minister. The Mother testified that the Father would nonetheless attempt to restrict access on the basis that she would “interrogate” the child. The Mother filed a “Covid Motion” in January 2022. The Mother testified that she had a visit with the child the day before the hearing.

[24] It is undisputed that the Mother’s application to legal aid was denied, as was her appeal of that decision. POSITION OF THE PARTIES [25] The Mother argues that she was granted state-funded counsel before so she should be entitled to counsel again.

She says she hascalled many lawyers in the last eight years, cannot afford a private lawyer, and does not qualify for a loan to pay a lawyer either. [26] The Minister of Justice and Public Safety takes the position that the Mother meets the qualifications except for one criticalcomponent: she is not a custodial parent and therefore her s. 7 Charter rights are not engaged. Counsel referred the Court to the leadingauthorities from our Court of Appeal in support of their position.

ISSUE [27] Is the Mother entitled to state-funded counsel in relation to the Minister’s Application to extend the PIO for a further 12 months? LAW AND ANALYSIS [28] In New Brunswick (Minister of Health and Community Services) v. G.(J.), (SCC) (the “G” decision), theSupreme Court held that a custodial, biological parent had a constitutional right to state-funded counsel in a child protection proceedingby virtue of

section 7 of the Canadian Charter of Rights and Freedoms (the Charter). The Supreme Court in “G” explained theprocedure to be followed in deciding entitlement to state-funded counsel at paragraphs 103 and 104: 103. As similar cases may arise in the future, I will briefly outline the procedure that should be followed when an unrepresented parentin a custody application seeks state-funded counsel. The judge at the hearing should first inquire as to whether the parent applied forlegal aid or any other form of state-funded legal assistance offered by the province.

If the parent has not exhausted all possible avenuesfor obtaining state-funded legal assistance, the proceedings should be adjourned to give the parent a reasonable time to make theappropriate applications, provided the best interests of the 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, chooses not to have one that there will be no entitlement to state-funded legalassistance: see Rowbotham, supra, at p. 64.

This is because the parent voluntarily assumes the risk of ineffective representation, forwhich the government cannot be held responsible. 104. If the parent wants a lawyer but is unable to afford one, the judge should next consider whether the parent can receive a fairhearing through 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. [29] The right to state-funded counsel is not guaranteed by statute.

It is not an automatic right, nor is there a “freestanding right” tolegal counsel. In fact, a review of the case law demonstrates that a narrow approach has been adopted and applied in New Brunswick onthe availability of state-funded counsel: C.M. v. New Brunswick (Minister of Justice and Consumer Affairs, 2012 NBCA 45; NewBrunswick (Minister of Social Development) v. P.(J.), 2013 NBQB 288; New Brunswick (Minister of Social Development) v. A.(R.), 2013 NBQB 217; Province of New Brunswick as represented by Minister of Justice v. J.F.,2021 NBCA 61 and The Ministerof Social Development v.

M.M. and K.B., 2022 NBQB 17 . [30] In essence, the right to state-funded counsel is a common law right that must be determined by applying the relevant criteria on acase-by-case basis. The applicable criteria include whether the affected parent has exhausted all avenues to obtain state-funded counsel.This part of the test is usually easily satisfied upon delivery of proof that the affected parent has applied to legal aid and that theapplication, and appeal, have been denied.

Financial considerations also enter the equation in terms of ascertaining whether the affectedparent can afford to retain counsel on their own. [31] Next, the Court considers whether the affected parent will receive a fair trial based on three criteria: (1) seriousness of the

interests, (2) the complexity of the proceedings and (3) the capacities of the parent affected. [ 32 ] Lastly, the Court must consider whether “exceptional circumstances” exist to extend entitlement to state-funded counsel beyond the “custodial parent”. [ 33 ] In this case, there is no dispute that the Mother did not qualify for legal aid and that her appeal was denied. I am also satisfied that she is indigent and cannot afford to retain her own lawyer in the context of the cost of the proposed litigation and her financial situation, including her debt levels.

Indeed, these points are also conceded by the Minister of Justice and Public Safety. [ 34 ] Before turning to the other applicable criteria, I will first refer to Chief Justice Lamer’s comments in the “ G ” decision, at paragraphs 86 to 89: 86 I would like to make it clear that the right to a fair hearing will not always require an individual to be represented by counsel when a decision is made affecting that individual’s right to life, liberty, or security of the person. In particular, a parent need not always be represented by counsel in order to ensure a fair custody hearing.

The seriousness and complexity of a hearing and the capacities of the parent will vary from case to case. Whether it is necessary for the parent to be represented by counsel is directly proportional to the seriousness and complexity of the proceedings, and inversely proportional to the capacities of the parent. 87 Although all custody hearings engage serious interests, the seriousness of the interests at stake varies according to the length of the proposed separation of parent from child. For instance, permanent guardianship applications are more serious than temporary custody applications.

Therefore, counsel will more likely be necessary in guardianship applications than custody applications. The difference in seriousness between these two types of applications is currently recognized by Legal Aid New Brunswick, which provides legal aid certificates to financially eligible applicants in all guardianship applications but not in all custody applications. There is also a difference in the seriousness of the interests at stake in custody hearings depending on the length of any previous separation. 88 The complexity of the hearing can vary dramatically from case to case.

Some hearings may be very short, involve relatively simple questions of fact and credibility, and have no expert reports. Others might take days and involve complicated evidentiary questions, troublesome points of law, and multiple experts. In the former cases, the assistance of counsel will make little difference to the parent’s ability to present his or her view of the child’s best interests, whereas in the latter cases, the representation of counsel may be essential to ensure a fair hearing. 89 The parent’s capacities are also variable.

Some parents may be well educated, familiar with the legal system, and possess above- average communication skills and the composure to advocate effectively in an emotional setting. At the other extreme, some parents may have little education and difficulty communicating, particularly in a court of law. It is unfortunately the case that this is true of a disproportionate number of parents involved in child custody proceedings, who often are members of the least advantaged groups in society.

The more serious and complex the proceedings, the more likely it will be that the parent will need to possess exceptional capacities for there to be a fair hearing if the parent is unrepresented. [ 35 ] I propose to address the two criteria of complexity and capacity first as they are both conceded, rightfully so, based on the evidence. I will then turn to the issue of seriousness of the interests in some detail as the debate is focused there.

(1) Complexity [ 36 ] First, in terms of complexity, the hearing of the Application will not be a re-trial of the issue already determined by Justice Daigle in her Decision. The issue to be determined at trial now is whether it is in the best interests of the child to extend the PIO for another 12 months, as requested by the Minister, pursuant to s. 58 and 60(2) of the Act . The trial will not be an appeal of Justice Daigle’s decision either.

[ 37 ] However, the best interests of the child test must still be applied to decide whether the relief sought by the Minister ought to be granted. As s. 58(2) of the Act says: “A protective intervention order may contain such provisions as the court considers to be in the best interests of the child (…)” The Court will need to consider all the factors set out in the Act , including whether the Mother continues to be a source of danger to the child’s security or development, pursuant to s. 58(1) of the Act . [ 38 ] The duration of the trial has not yet been determined.

My impression is that the trial may be three to five days long subject to any agreement regarding documents and witnesses. Considering the Affidavits submitted by the Mother, she certainly views the matter as complex. In any event, I suspect that the trial will probably involve at least some expert testimony. There will likely be many potentially complicated evidentiary issues. Justice Daigle already made findings with respect to the Mother’s credibility at paragraphs 197 to 202 of her Decision.

Although the trial judge in this Application is not bound by those findings, he or she may nonetheless need to make findings of credibility. [ 39 ] On balance, I find that the matter is sufficiently complex.

(2) Capacity [ 40 ] This part of the test is easily satisfied. The evidence establishes that the Mother suffers from mental health issues in addition to having a severe learning disability. She is presently 27 years old. A nurse practitioner, Fiona Thornton, supported the Mother’s request for a service dog for her PTSD disability (Affidavit of Caitlan Stevens-Kelly sworn to August 22, 2022, at para. 13). There is reference to the medical opinion of Dr.

Laurie Porter, the Mother’s attending psychiatrist during her hospitalization from April 4, 2021, to May 4, 2021, that she suffered from delusional disorder. [ 41 ] In her Affidavit at paragraph 24, Ms.

Stevens-Kelly explains that the Mother called her on July 12, 2022, to advise that her current stay at the hospital “is due to black magic being placed on her home by her roommate and that her mother and sister were a part of this wiccan black magic spell placed on her home.” [ 42 ] As stated above, the Mother has been obsessed over the last eight years about trying to prove that the Father has sexually abused the child.

She continues with this obsession even though Justice Daigle explained, in her Decision, that the issue is not whether the Father has sexually abused the child, but whether it is in the best interests of the child to grant a PIO in respect of the Mother. In essence, the Mother simply does not fully understand the issue, or cannot focus on the issue, which contributes to her incapacity to represent herself.

(3) Seriousness of the Interests [ 43 ] The interests at stake in child protection matters pertain to the possible infringement of s. 7 Charter rights on custodial parent(s), and they are therefore very serious. It is the loss of existing custodial rights that engages

section 7 of the Charter considerations. That is why it is important to determine if the parent was a custodial parent at the time the child was taken into care before deciding if state- funded counsel should be appointed in a particular case. [ 44 ] As Mr. Justice Petrie recently explained in The Minister of Social Development v.

M.M. and K.B. at paragraph 29 : “Most often, the focus of the dispute is whether the person seeking state-funded counsel was acting as a custodial parent at the time of the state’s intervention into their and their child’s lives.” Justice Petrie, correctly in my view, canvassed this concern under this part of the test, and I will as well. [ 45 ] I begin the analysis by referring to the case of New Brunswick (Minister of Social Development) v. K.W. , [2010] N.B.J. No.

462 . In that case, the Court wrestled with the issue of whether a biological parent who never really had any custodial relationship with the child was entitled to state-funded counsel. In denying the application, the Court reasoned that: 36 To be eligible for state-funded legal counsel, it seems appropriate to require there be some past custodial relationship between the parent and the child. It is not the possibility of becoming a custodial parent that triggers the application of s. 7 ; it is the impact of the loss of custodial rights that invoke a s. 7 argument.

This is clearly reflected in Justice Larlee's comment in para. 13 quoted above: "Effective parental participation at the hearing is essential for determining the best interests of the child in circumstances where the parent seeks to maintain custody of the child." 37 The provisions of the Canadian Charter of Rights and Freedoms are only available when there is an impact upon the person claiming the right. The relationship between Y.B. and J.T.W. must be more than a biological one.

If there has been no custodial relationship there is no basis to presume that Y.B.'s security of the person is at risk. 38 It must be clear the invocation of s. 7 does not require the person be the current custodial parent. There can be many circumstances in which a parent may not currently have custody. However, the person must have had some custodial relationship with the child. This might be a joint custody arrangement or an access arrangement that is actually implemented.

The fact joint custody to the child may be imputed to the parent by virtue of s. 129(1) of the Family Services Act is not enough, by itself, to establish a custodial relationship between the parent and the child sufficient to generate an order for state-funded legal counsel. [Emphasis mine]. [ 46 ] In C.M. v. New Brunswick (Minister of Justice and Consumer Affairs , 2012 NBCA 45 , the Court of Appeal stated very clearly at paragraph 36 that the “presumptive requirement” for state-funded counsel is that the child must be in the parent’s custody when taken into protective care: 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. [Emphasis mine]. [ 47 ] The C.M. v.

New Brunswick (Minister of Justice and Consumer Affairs decision from the Court of Appeal sent a clear message that non-custodial parents are not entitled to state-funded counsel, absent exceptional circumstances. That message was reiterated by the Court in New Brunswick (Minister of Social Development) v. A. (R.) , 2013 NBQB 217 , at paragraph 37 : 37.

From the New Brunswick Court of Appeal, the message is clear; if you are a non-custodial parent at the time the child is taken into care, state funded counsel is not available to you, absent exceptional circumstances. [ 48 ] More recently, the Court of Appeal in Province of New Brunswick as represented by Minister of Justice v. J.F. , 2021 NBCA 61 , (“J.F.”) removed any possible lingering doubt about how the test was to be applied in this Province.

The Application Judge assessed the custodial relationship that existed at the time of the placement into protective care in that case by considering the criterion of family violence, which forms part of the best interest analysis under the legislation. In that case, the Judge reasoned that the child had not resided with the mother for approximately eight years because of the father’s abusive and controlling personality. The mother therefore played as much of a role as possible in the child’s life in the circumstances. The Application’s Judge ordered state-funded counsel for the

mother pursuant to s. 24(2) of the Charter . [ 49 ] The Court of Appeal indicated that further clarification was required on when state-funded counsel should be granted in a proceeding when a child has not been removed from the custodial care of the applicant.

The Court of Appeal referred to jurisprudence confirming that there is no “freestanding” right to legal counsel, and also explained the “ G ” decision: [15] In the child protection context, following the “ G. ” decision, it has generally been accepted that, when the state removes a child from parental care and is seeking custody or permanent guardianship, custodial parents are entitled to legal representation and should not be required to represent themselves, if they can satisfy certain criteria.

If legal aid has been requested and rejected, and the appeal process has been exhausted, the parent may apply to the court for an order requiring the appointment of state-funded counsel. Judges who render these decisions have historically been guided by the reasons set out in the “ G. ” decision . [16] In that case, the Minister sought a custody extension of up to six months for the three children. The mother’s application for legal aid was denied. The mother then brought a motion for an order directing the Minister to provide her with state-funded counsel.

The denial of legal aid assistance and state-funded counsel was unsuccessfully appealed to this Court. The mother then appealed to the Supreme Court on the basis this denial was a violation of her fundamental right to a fair trial as guaranteed under s. 7 of the Charter . The criteria that have been historically considered at “ G .” hearings include:

a) the fact the proceedings may have a detrimental impact on the parent’s life, liberty or security of the person, which includes psychological security, under s. 7 of the Charter ;

b) whether lack of legal representation would violate the principles of fundamental justice due to the seriousness of the interests at stake, the complexity of the case and the inability of the parent to properly present his or her case due to intellectual disadvantage; and

c) whether there is evidence the parent lacks the financial ability to pay for legal services themselves or with the assistance of others. [18] The Supreme Court noted it was “of particular importance” the Minister was seeking a six-month extension of a previous custody order. It was Lamer C.J.’s opinion the removal of children from a parent of three young children for six months is a “significant period of time” (para.77). He observed the mother had already been separated from her children for over a year as a result of previous proceedings. He stated the Minister’s application to extend the original custody order under

Part IV of the Family Services Act threatened to restrict the mother’s right to security of the person, which would not be in accord with the principles of fundamental justice (para. 55). Lamer C.J. opined that to avoid a prospective breach of s. 7 of the Charter , state-funded counsel should have been provided to her. French J.A. applied this reasoning in S.G. v. New Brunswick (Minister of Social Development ), [2018] N.B.J. No. 364 (QL) (C.A.) . [Emphasis mine]. [ 50 ] The Court of Appeal in J.F. , supra held that the Court below erred in granting state-funded counsel to the mother.

This is how the Court of Appeal explained the error: [20] Before proceeding with this part of the analysis, it bears examining what the Supreme Court concluded in the “ G. ” decision. As I read its reasons, the decision clearly tied the removal of a child from parental custody to the Charter interests being protected in s. 7 . It is my opinion the analysis was restricted to those cases where a child is being removed from the custodial care of a parent at the time of the initiation of legal proceedings (paras. 60-61). Green J.A. accepted and amplified this principle in C.M.

What the judge did in this case was to find a creative way to distinguish C.M. I will concede that, in certain cases, where there is clear evidence a parent has been denied his or her custodial care of a child through no fault of his or her own, a court could be persuaded to invoke the “exceptional circumstances” exception discussed by Green J.A. in C.M . With respect, however, that was not the evidence in this case. The significant and uncontradicted facts include the following (…) [25] In this case, the mother testified she “ended up getting in trouble,” and she did not fight for the child.

She described it as taking the coward’s way out and resorting to drugs. She stated when it was “time to fight” for the child, she was “too far gone” (transcript, at p. 17). This mirrors exactly what the court stated in K.W. It is not the prospect of gaining custodial care that triggers the s. 7 Charter interest. It is the potential for the loss of existing rights as a result of state action. In this case, the state was not seeking to remove the child from the mother’s custodial care. In fact, as stated, the mother was relieved of her custodial rights when the child was approximately two years of age.

With respect, it is my view the decision in the court below stretches the “notion” of custodial rights in such a way as to ignore the clear message the Supreme Court sent in the “ G. ” decision. The facts speak for themselves. At

the time the child was taken into protective care in this case, the mother could not have been considered a custodial parent. For the reasons stated, it is my opinion the judge incorrectly applied the legal principles. [32] In my view, not only is it inappropriate, but it is also dangerous, to attempt a merit-based analysis at the “G.” hearing stage. Even if such an analysis were deemed to be meritorious, a judge should not focus exclusively on one criterion, in this case, domestic violence, to the exclusion of the other criteria.

Given the facts of this case, it is my view the judge erred when she imported domestic violence as a component of her analysis. [Emphasis mine]. [ 51 ] It would be equally inappropriate and dangerous in this “G” hearing to include as part of the analysis the question of whether the Father in fact sexually abused the child, as the Mother suggests. A “G” hearing is not the proper forum to conduct a merit-based analysis, as the Court of Appeal confirmed in J.F. supra. [ 52 ] In this case, the Minister is seeking a PIO pursuant to ss. 58 and 69(2) of the Act .

The relief sought squarely falls under the “protective care” part of the Act or more specifically,

Part IV, Children in Care, thereof. It is under

Part IV of the Act that, for example, Supervisory Orders (s.54), Custody Orders (s. 55), Guardianship Orders and Protective Intervention Orders (s.58) are granted. Protective care is defined in s. 1 of the Act as follows: “protective care” means a service which provides an immediate safeguard for (régime de protection) (

a) a child’s security and development, or (

b) the security of a person whom the Minister has reason to believe is a neglected adult or an abused adult; [ 53 ] In this case, the Minister did not assume care, custody, or control of the child in the same manner as it would pursuant to a Custody or Guardianship Order. A PIO is akin to protective care to the extent that its purpose, here, is to “protect” the child from the Mother by refraining her from any contact or association with the child “except as agreed by the Minister”.

Also, in a Guardianship Application, the child may be taken from the parents on a permanent basis without any right of access, whereas pursuant to s. 58(4) of the Act , a PIO remains in force for a period “not to exceed twelve months, and may, on Application, be extended for additional periods of up to twelve months each.” I also note that under s. 58(6) of the Act , it is an offence for any person to violate a PIO. [ 54 ] The focus here needs to be on whether the Mother was a “custodial” parent at the time the Minister sought “protective care” as defined in the Act .

It is not normally very difficult to answer this question. However, in this case, given the nature and long history of this file, the answer to that question requires a detailed explanation. [ 55 ] In this case, the PIO was sought as a result of the Minister’s decision to protect the child by virtue of a PIO that leaves access to the Mother at the Minister’s discretion. The Minister therefore decided to protect the child from the Mother by asking for, and obtaining, a PIO.

The reason the Minister applied for a PIO, rather than a Custody or even a Guardianship Order, is because the Father was granted “sole custody” of the child as a result of the Court’s decision on February 25, 2020: D.O. v. C.J . [2020] N.B.J. No. 89 (the “private application”). The Court described the procedural history that led to the private application as follows: 2.

In December 2016, the parties agreed on the following terms: -they had joint custody of the child; -the mother had primary care of the child; -the father's access was from Friday to Sunday the first week and from Wednesday to Friday the second week. 3. This arrangement was confirmed by a Consent Order dated December 21, 2016. There was another Order made on May 4, 2016, which order provides that the father pays child support of $332 per month for the benefit of the child.

4. In November 2018, the mother filed a Motion to Change seeking to terminate the father's access or to have his access supervised and asking to have sole custody of the child. In his Response to Motion to Change, the father opposed the mother's request and asked for sole custody of the child. 5. This matter came before the Court on December 17, 2019. At the beginning of the hearing, the mother asked to withdraw her Motion to Change and the father consented to the withdrawal.

The father however maintained his variation request for sole custody. [ 56 ] In the private application, the Court granted sole custody to the Father and essentially reversed the access arrangement that existed in 2016 by varying the existing order to give the Mother access from Friday to Sunday the first week, and from Wednesday to Friday the second week. In addition, the Court granted the Mother three non-consecutive weeks of vacation in the summer as well as during Christmas on alternating years as well as telephone access.

All of the access granted to the Mother in the private application was unsupervised and did not stipulate or include any conditions at the request of the Minister. In fact, the Court found that the parties could make adjustments to the access

schedule by mutual agreement. [ 57 ] This background helps explain why counsel for the Minister of Justice takes the position in her written submission at paragraph 28 that: “The facts of this case show that, the applicant was not a custodial parent of [the child] since February 2020.” [ 58 ] However, it is when the child is taken into protective care that matters, not when the private application was decided.

The distinction is important because the Court Order in the private application does not engage any s. 7 of the Charter rights; state intervention is required for that to occur. [ 59 ] Of some significance here is that the Minister is seeking an extension of a PIO already in place, which is akin to the situation in “ G ” where the Minister sought an extension of a six-month Custody Order. Although these remedies under the Act may be sought for different reasons, both amount to extensions of previous Orders that have the effect of removing custody, care and control of the child from the mother.

Chief Justice Lamer mentioned in “ G ” that the six-month extension of time was a significant consideration, as mentioned above. [ 60 ] In this case, it is important to refer to the history of these proceedings from the Minister’s perspective to ascertain when the Minister assumed protective care of the child. The history of the matter is set out at paragraph 7 of Ms. Stevens-Kelly’s Affidavit sworn to on August 22, 2022: 7. After we review of the Ministers file, I do verily believe that the Minister has received approximately 36 intake referrals involving [the child] since 2014.

Four (4) child protection cases have been opened due to concerns of repeated allegations made by [the mother] of sexual abuse by [the father] toward [the child]. [The mother] continues to believe that [the father] is sexually abusing [the child], resulting in the department receiving continuous intakes:

a) A child protection case was opened from October 22nd, 2014 to March 10th, 2015;

b) A child protection case was opened from July 14th, 2016 to March 6th, 2017. During this period, the Minister applied for and was granted a Supervisory Order with conditions directed at [the mother] including that [the mother] be supervised with [the child] and that she must advise the Minister prior to bringing her for a physical exam. The grounds of the application included concerns that “[the child], was being subjected to ongoing and repeated physical examinations by family doctors, nurse, and ER physicians at the hands of [her mother], and all of which has been unfounded.”

c) A child protection case was open from February 22, 2019 to April 10, 2020 due to the same concerns of the repeated unsubstantiated physical examinations for sexual assault. The file was closed when [the father] was granted physical custody of [the child]; and

d) A child protection case was opened July 11, 2020 to present (August 2022) when the Minister became aware that despite the change in custody, [the mother] continued to bring the child for physical examination without notifying either [the father] or the Minister. [Emphasis mine] [ 61 ] The Mother’s testimony, as noted above, is clear: everything changed for her on April 26, 2020. It was at that moment that she

says she was only entitled to supervised access twice per week, 2 hours per visit. What is unclear is exactly how and why this change occurred on April 26, 2020, considering the evidence from Ms. Stevens-Kelly that the Minister’s file was closed on April 10, 2020, and only “reopened” on July 11, 2020. [ 62 ] Ms.

Stevens-Kelly’s Affidavit further states that on July 14, 2020, a Permanency Planning Conference took place, and the Minister made the decision to apply for a PIO requesting supervised access for the Mother, that the Mother not take the child to a doctor for sexual abuse examinations, in addition to a request that the Mother attend trauma counseling. [ 63 ] Further to that decision, the Minister filed an Application for a PIO toward the Mother on August 31, 2020, with a first hearing taking place on September 3, 2020.

An Interim PIO was issued on September 9, 2020. [ 64 ] On October 1, 2020, the Court ordered that a “G” hearing be scheduled at the request of the Mother in relation to the Minister’s Application for a PIO. The “G” hearing took place on October 21, 2020. On October 26, 2020, the Court granted the Mother’s request that state-funded counsel be appointed to represent her at the trial of the Minister’s PIO Application. Solicitor Richard Northrup represented the Mother during the 10-day trial. [ 65 ] The Court granted the PIO for one year (September 3, 2021, to September 2, 2022).

On September 2, 2022, the Court extended the PIO on an Interim basis pending the disposition of the Application in accordance with s. 58(4.1) of the Act . The Minister now seeks an extension of the PIO for another full year, until September 3, 2023. It is for this hearing that the Mother again seeks to have state- funded counsel appointed to represent her. [ 66 ] While the Mother was adamant that she “lost her rights” to see her daughter on April 26, 2020, she tried to clarify when the Minister “formally” intervened during her testimony on cross-examination: Q.

And it’s been over two years that you lost the custody of your child, correct? A. Yes. Q. And it was on September 3, 2021 that the Protective Intervention Order was directed towards you? Is that correct? A. Yes. Uh, what date did you say? Q. September 3, 2021? A. That’s when the order took place but that’s not when they took my rights from me. It was April 26, 2020. They refused to put in for a PIO for several months. They took my rights from me but yet, refused to take it to Court. Q. But the Decision was for September 3rd? A. Yes. (…) Q. And at the moment you have limited visits with your daughter, correct? A.

Yes.

Q. And you can only visit your daughter when the Minister allows it to you? A. Yes. Q. You still don’t have any contact with your daughter without the Minister giving you permission? A. No. Q. And when was the last time you saw your daughter? A. Yesterday. [ 67 ] Here is how the Mother explained the situation in her closing submission: I had custody of my child from when I birthed my child up until 2020. I had decision rights over her, and I – even after I had lost custody of her I still had custodial rights to my child.

The only reason why I do not have access rights to my child where I do not have custodial decision making rights is because I do not have supervision rights to her. I only can be supervised by the Minister of Social Development. Just give me one second.

What the Minister is doing is wrong. [ 68 ] Whether the Minister made a decision to restrict the Mother’s access to supervised visits twice per week on April 26, 2020 as the Mother suggests, or on July 11, 2020 when the Minister’s file was “reopened”, there can be no doubt that an Interim PIO was issued on September 9, 2020. [ 69 ] Given the uncertainty in the evidence as to the exact date of the Minister’s involvement in formally restricting access to the child, I will choose to rely on the certainty of the Interim PIO Order dated September 9, 2020.

As a result, I will also find that the Mother continued to exercise the same access as the Order in the private application provided to her, especially in the absence of evidence from the Minister that access was restricted on April 26, 2020. If that was the case, the Ministers’ file would not have been closed on April 10, 2020, or, alternatively, Ms. Stevens-Kelly would have indicated that the Minister’s file was reopened on April 26, 2020, and explicitly confirmed the Minister’s intervention at that time. Ms.

Stevens-Kelly’s Affidavit confirms the Minister not only opened (or reopened) the file on August 22, 2022, but took positive steps to intervene by way of Court Order to confirm the Minister’s intervention. Indeed, the Minister of Justice and Public Safety relies on the Affidavit evidence of Ms. Stevens-Kelly for the purpose of this Motion. [ 70 ] It is an undisputed fact that the Mother was a custodial parent prior to February 25, 2020.

The question is thus whether the Mother was a custodial parent on September 9, 2020. [ 71 ] The Mother continued to exercise all of the access she was entitled to under the private application Order and, as a result, she continued to be involved in some capacity in the care of the child up to the September 9, 2020, Interim PIO. The child stayed with the Mother at her residence overnight, unsupervised, during her access time from Friday to Sunday the first week, Wednesday to Friday the second week, as well as for three non-consecutive weeks of vacation in the summer, during Christmas on alternating years.

During those visits, the Mother was responsible for providing all of the necessities of life for the child such as food and shelter, in addition to making decisions for the child while in her care. In other words, the Mother continued to provide aspects of care and control with respect to the child during her regular, structured access visits in accordance with the Court Order.

Even after February 25, 2020, it cannot be said that there has been little or no contact between the child and the Mother, or that the Mother played no role in the child’s life, or that there was no connection between them either. [ 72 ] The Mother argues here that because the Court previously ordered state-funded counsel that I must make the same Order now. That prior decision does add a rather unique consideration to this case.

In this case, the Minister of Justice is left to argue that the Mother, who has already been appointed state-funded counsel for the trial of a PIO, should not benefit from that right for the extension of that same PIO after it expires. In any event, I am not bound by the prior “G” decision and I must decide this Motion based on the evidence before me.

[ 73 ] I have already found that the Minister took protective care on September 9, 2020. I find that at that time, the Mother was a custodial parent. The Minister’s seeking of the Interim PIO on September 9, 2020 severely and further restricted the Mother’s access and visitation even compared to what it was based on in the Order in the private Application. It is apparent given the long procedural history of the matter, and the Mother’s mental health issues and struggles, that she was particularly vulnerable when the Minister sought the Interim PIO.

The Mother went from regular, unsupervised, overnight care and control of the child during her visits, to supervised two- hour visits based on the Minister’s discretion, in addition to other relief that refrained her from contacting the child.

Furthermore, the Supreme Court in the “ G ” decision stated at paragraph 87 that “[a]lthough all custody hearings engage serious interests, the seriousness of the interests at stake varies according to the length of the proposed separation of parent from child.” In the “ G ” decision, the six- month duration for a custody order was of significant enough to engage s. 7 Charter rights. Here, the Minister sought and obtained a 12- month PIO and now seeks a further 12-month extension of that same PIO.

As noted above, s 58(6) of the Act makes it an offence for the Mother to violate the PIO. [ 74 ] I find the Mother is therefore entitled to state-funded counsel in this particular case because her s. 7 Charter rights have been infringed as a custodial parent at the time the child was taken into protective care on September 9, 2020. Exceptional Circumstances [ 75 ] The analysis does not end there. As Justice Green explained in C.M. v. New Brunswick (Minister of Justice and Consumer Affairs at paragraph 37 : 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. [ 76 ] The Court of Appeal has delineated some of the parameters of what constitutes exceptional circumstances. [ 77 ] In the event that my finding that the Mother was a custodial parent when the child was taken into protective care on September 9, 2020 is an error, I find that exceptional circumstances exist in this case. [ 78 ] As stated above, the Mother enjoyed regular unsupervised access prior to September 9, 2020.

While the Mother was not enjoying as much time as she wanted with the child, she nonetheless made all decisions concerning the child while in her care. Even though her role as a custodial parent changed as a result of the February 25, 2020 Order in the private application, the Mother and the child continued to play a meaningful role in each other’s lives up to September 9, 2020, and to that extent s. 7 of the Charter is engaged. DISPOSITION [ 79 ] The Notice of Motion requesting the appointment of state-funded counsel is therefore allowed.

The Applicant D.O. shall be appointed state funded counsel for the purpose of this Application pursuant to s. 24(2) of the Charter . No costs shall be ordered. DATED at Saint John, New Brunswick this ______ day of November 2022.

________________________________ Danys R. X. Delaquis Judge of the Court of King’s Bench of New Brunswick - Family Division