2022 NLCA 13, 2022 NLCA 13

K.K. (applicant/appellant) v. Manager of Children and Youth Services, Zone D (respondent) (22/08) Indexed As: K.K. v. Manager of Children and Youth Services, Zone D 2022 NLCA 13 7 C.A.N.L.R. 346 Court of Appeal of Newfoundland and Labrador Welsh J.A. February 22, 2022

Summary: K.K. is the mother of three young children who were taken into continuous care of the Manager of Child, Youth and Family Services. The formal order for continuous care was filed on December 16, 2021. K.K. filed an application on February 4, 2022 for an extension of time to file a notice of appeal, which was filed on that date. Held: Application granted. Welsh J.A.: K.K.’s conduct established that she wanted to appeal the order for continuous care. K.K. had an appointment with counsel set for December 17, 2021, which was unavoidably cancelled by counsel.

When K.K. contacted counsel on January 28, 2022, she was advised that she was beyond the 30 day appeal period and would need to apply for an extension of time to appeal the order. K.K. proceeded to file the application and notice of appeal on February 4, 2022. It was accepted that K.K. was upset by the death of her partner in October and the order placing her children in the continuous care of the Manager. Further, her counsel resided in St. John’s while K.K. was living on the west coast of the province, which made contact with counsel more difficult (paragraphs 1-10). Cases cited: L.T. v.

Director of Child, Youth and Family Services (No. 2) , 2011 NLCA 1 , 304 Nfld. & P.E.I.R. 134 Rules considered: Court of Appeal Rules , NLR 38/16, rule 8(1) (

a) Counsel: Catherine E. Boyde, for the applicant/appellant; Krista M. Atkins, for the respondent. The application was heard and decision rendered orally on February 22, 2022 by Welsh J.A. The following memorandum of disposition was filed on February 24, 2022 by Welsh J.A. ______________________________________________________________ Welsh J.A.: [ 1 ] K.K., the mother of three young children who have been taken into care, applied for an extension of time within which to file a notice appealing that order. At the hearing, I allowed her application, set May 20, 2022 for the hearing of her appeal, and set a

schedule

for the filing of materials. [ 2 ] The appeal arises from an order of a judge of the Supreme Court, Family Division, given orally on November 12, 2021, in which the three children were taken into the continuous care of the Manager of Child, Youth and Family Services. On December 16, 2021, the formal order was filed. [ 3 ] Pursuant to rule 8(1) (

a) of the Court of Appeal Rules , NLR 38/16 , a notice of appeal was required to be filed “within 30 days after the order appealed from has been filed in the court appealed from”. In this case, December 16, 2021 is the date when the order appealed from was filed. Accordingly, the notice of appeal was required to be filed by January 16, 2022.

However, the notice of appeal was not filed until February 4, 2022. [ 4 ] In determining whether an extension of time should be granted after the expiration of the thirty-day period, four factors that may be considered are: (1) whether the appellant had a bona fide intention to appeal within the appeal period; (2) whether there is a reasonable excuse for the failure to comply with the time limit stipulated by the rule; (3) the potential merits of the appeal; and (4) whether there are special or exceptional circumstances justifying or working against the fairness of granting or refusing an extension of time (see, for example, L.T. v.

Director of Child, Youth and Family Services (No. 2) , 2011 NLCA 1 , 304 Nfld. & P.E.I.R. 134 , at paragraph 5 ). [ 5 ] Depending on the circumstances, these factors should be applied with appropriate flexibility. An order placing a child in the continuous care of the Manager of Child, Youth and Family Services may have long term, significant implications for both the child and the parents.

In this case, the Manager intends that the children should be placed for adoption, with the hope that they will be placed together in a culturally appropriate home. [ 6 ] I am satisfied from K.K.’s conduct that she wanted to appeal, if that was an available option. She had an appointment with legal aid counsel set for December 17, 2021, which was unavoidably cancelled by counsel. On January 28, 2022, K.K. contacted counsel and was advised that she would need to apply for an extension of time to file a notice of appeal. The application and notice of appeal were filed on February 4, 2022.

While K.K. could have been more diligent in pursuing the appeal, I accept that she was upset by the death of her partner in October and the order placing her children in the continuous care of the Manager. Her counsel resides in St. John’s while she was residing in Stephenville, and subsequently in Corner Brook, making contact with counsel more difficult. [ 7 ] I was unable to give proper consideration to the merits of the appeal. The trial judge’s oral decision has not been transcribed.

However, in the absence of access to the trial judge’s decision, K.K.’s affidavit in support of her application provided sufficient information to satisfy me that the appeal is not frivolous. [ 8 ] I am fully cognizant of the need to proceed with this appeal without delay, in the best interests of the children. Given that the children have been placed in the continuous care of the Manager, if adoption is to take place, this should proceed as soon as possible.

With that in mind, and with the concurrence of counsel, I set dates for the filing of materials and hearing of the appeal with the intention of avoiding any unnecessary delay. [ 9 ] Accordingly, the application for an extension of time within which to file a notice of appeal was granted. Application granted.