2017 NLCA 37, 2017 NLCA 37

K.P. (appellant/applicant) v. Manager of Child, Youth and Family Services Zone A (respondent) and between M.K. and R.P. (appellants/applicants) v. Manager of Child, Youth and Family Services, Zone A (respondent) (16/87 and 16/89) Indexed As: K.P. v. Newfoundland and Labrador (Child, Youth and Family Services) 2017 NLCA 37 2 C.A.N.L.R. 1 Court of Appeal of Newfoundland and Labrador Hoegg J.A. June 16, 2017 RESTRICTION ON PUBLICATION: Pursuant to

section 52 of the Children and Youth Care and Protection Act , SNL 2010, c. C- 12.2., there is a ban on publishing or making public information that has the effect of identifying a child who is a witness at or a participant in this proceeding or who is the subject of this proceeding, the child’s parent or foster parent, or a member of the child’s family.

Summary: The applicants, a mother and grandparents, applied for state-funded legal counsel to represent them on an appeal of a Family Division Judge’s decision which granted continuous custody of two children to the Manager of Child, Youth and Family Services under the provisions of the Child and Youth Care and Protection Act, SNL 2010, c. C-12.2 ( CYCPA ). The applicant, K.P., was represented by Legal Aid counsel at trial. Her parents were represented by separate Legal Aid counsel. Legal Aid has declined to represent both the mother and the grandparents on their respective appeals.

Held: Mother’s application allowed, grandparents’ application dismissed. Hoegg J.A.: State action seeking to interfere in a parent’s relationship with his or her child or children engages the parent’s right to security of the person under

section 7 of the Charter , which could be violated if the state action is not in accordance with the principles of fundamental justice, such as a fair hearing. Some child protection proceedings could be rendered unfair by lack of counsel, and thus state-funded counsel must be provided. The criteria a judge must consider in deciding whether to grant state-funded counsel for a parent facing state-initiated action seeking to interfere with his or her parent-child relationship include: (

i) the inability of the parent to afford a lawyer or qualify for legal aid; (ii) the seriousness of the matter; (iii) the complexity of the matter; (iv) the incapacity of the parent to present his or her case effectively without the assistance of a lawyer; and (

v) the potential for the judge to assist within the limits of the judicial role. The issue respecting Ms. P.’s application is whether she can receive a fair hearing of her appeal without counsel to represent her. Considering the first of the factors, the stakes of Ms. P’s appeal are enormously high, and she is aware that they are high. The stakes are high for society. The state has a responsibility to protect children, and this responsibility is often a huge challenge to vindicate. Accordingly, the seriousness of this matter is high. The issues raised are complex. The applicant asserts that certain evidence was not considered by the Judge and that her trial was unfair in

some respects. Such assertions are usually tangled questions of mixed fact and law, and in family law cases in particular often involve theexercise of a judge’s discretion, to which much deference is properly owed. These exercises of discretion are often not revealed in adecision, however comprehensive, or by the record. Accordingly, from a fairness perspective, it is important that an appellant have theopportunity to effectively present her arguments, so that both she and society can rest assured that whatever the final result, it wasobtained by a fair process. Counsel could assist the appellant.

The history, context and issues for appellate consideration are more apt to be known and appreciatedby counsel through personal client contact and dealings with opposite counsel which inform their perspective and approach to the case.Accordingly, while this Court could assist Ms. P. with her appeal, in her case, the Court’s assistance of Ms. P. might not fully vindicate afair adjudication of her appeal. Ms. P. is not able to effectively argue her appeal. Accordingly, the criteria support the appointment of counsel. Counsel for the Attorney General, however, argues that Ms.

P.’s appeal has no merit, and that it is not in the public interest to investpublic legal services and time into unmeritorious appeals that have no chance of success. Counsel points to the fact that both Legal Aidand the Legal Aid Board have denied Ms. P. counsel on the basis that her appeal has no merit, and that their decisions should beconsidered by this Court. The Court can properly consider the Legal Aid opinions and did in this case. However, the issues raised are not readily discernable fromthe trial judgment and may only be able to be properly addressed through the appeal process.

Some appeals are so obviously devoid of merit that it would be useless to appoint counsel to represent a potential appellant. Thisthreshold is a high one and is somewhat akin to the test for striking pleadings. Accordingly, one cannot to say that Ms. P.’s appeal has nodiscernable merit. Fairness dictates that Ms. P.’s application for state-funded counsel to assist her in presenting her appeal be granted. While theoretically possible for grandparents to succeed in an application for state-funded counsel, grandparents must still meet thecriteria under

section 7 of the Charter. The state has not initiated any action in relation to the grandparents. Neither have the grandparentsdemonstrated that the state action against their daughter is effectively action against them. The have voluntarily participated in theproceeding. Here, the grandparents have not suffered the losses and insults required to engage their

section 7 rights to security of theperson. Cases cited: New Brunswick (Minister of Health and Community Services) v. G.(J.), (SCC), [1999] 3 S.C.R. 46 J.F. v. Newfoundland and Labrador (Child, Youth and Family Services), 2013 NLCA 27, 336 Nfld. & P.E.I.R. 214 P.G.B. v. Nova Scotia (Community Services), 2014 NSCA 113, 1126 A.P.R. 44 Counsel: Appearing on their own behalfs, the appellants/applicants; Krista Atkins, for the respondent; David Rodgers, for the Attorney General of Newfoundland and Labrador. This application was heard and decision rendered orally on May 12, 2017 by Hoegg J.A.

The following reasons for decision were filed on June 16, 2017 by Hoegg J.A. ______________________________________________________________

Hoegg J.A.: INTRODUCTION [1] K.P. applies for state-funded legal counsel to represent her on her appeal of a Family Division Judge’s decision which grantedcontinuous custody of her two children to the Manager of Child, Youth and Family Services under the provisions of the Child and YouthCare and Protection Act, SNL 2010, c. C-12.2 (CYCPA). [2] M.K. and R.P. are K.P.’s parents. They also apply for state-funded legal counsel to represent them on their appeal of the FamilyDivision Judge’s decision denying their application for custody of K.P.’s children, their grandsons.

The grandparents’ application forcustody was made and decided under the provisions of the Children’s Law Act, RSNL 1990, c. C-13. It was heard at the same time asthe Manager’s application for continuous custody. [3] At the hearing, Ms. P. resisted the Manager’s application and sought return of the children to her custody. Her parents’application sought custody of the children only if the Court did not return them to their mother’s care. [4] The Judge allowed the Manager’s application. She found the children in need of protective intervention under sections 10(1)(a)and (

c) of the CYCPA and placed them in the continuous custody of the Manager under section 32(2) of the Act. The Judge dismissedMs. K’s and Mr. P’s custody application, finding that “the best interests of the children would not be served by having the children caredfor or [by] being placed in the custody of their grandparents”. [5] Ms. P. was represented by Legal Aid counsel at trial. Her parents were represented by separate Legal Aid counsel. Legal Aidhas declined to represent both the mother and the grandparents on their respective appeals.

The Law [6] The law respecting when the state may be required to fund counsel for parents who stand to lose custody of their children wasset out in New Brunswick (Minister of Health and Community Services) v. G.(J.), (SCC), [1999] 3 S.C.R. 46. TheSupreme Court invoked the Canadian Charter of Rights and Freedoms, which governs relationships between individuals and the state, torule that state action seeking to interfere in a parent’s relationship with his or her child or children engages the parent’s right to securityof the person under

section 7 of the Charter, which could be violated if the state action is not in accordance with the principles offundamental justice. Since a fair hearing is a principle of fundamental justice, state action (for instance a hearing) which is not fair couldresult in a breach of the parent’s, or indeed the subject child’s or children’s, security of the person. The Court explained that in somecases, an unrepresented parent could be unable to effectively advocate his or her interests in such a hearing, which could render thehearing unfair and therefore not in accordance with the principles of fundamental justice.

In such cases, the Court stated that the parentought to be provided with counsel to assist him or her in the hearing, thereby making the proceeding a fairer one by evening the playingfield. [7]

Section 7 of the Charter reads: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. The case headnote neatly explains the Court’s reasoning as to how the right to security of the person is engaged when the state seeks tointerfere in the parent-child relationship. I cannot say it better: … to extend the original custody order threatened to restrict the appellant’s right to security of the person guaranteed by s. 7 of theCharter.

This right protects both the physical and psychological integrity of the individual and this protection extends beyond thecriminal law and can be engaged in child protection proceedings. For a restriction of security of the person to be made out, the impugnedstate action must have a serious and profound effect on a person’s psychological integrity. The effects of the state interference must beassessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility.

This need not rise tothe level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety. State removal of a child fromparental custody pursuant to the state’s parens patriae jurisdiction constitutes a serious interference with the psychological integrity ofthe parent. 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 aprivate and intimate sphere.

Further, the parent is often stigmatized as “unfit” when relieved of custody. As an individual’s status as aparent is often fundamental to personal identity, the stigma and distress resulting from a loss of parental status is a particularly seriousconsequence of the state’s conduct. A combination of stigmatization, loss of privacy, and disruption of family life are sufficient toconstitute a restriction of security of the person.

At paragraphs 68 to 93 of the decision, the Court explains how some child protection proceedings could be rendered unfair by lack ofcounsel, and went on to identify criteria a judge must consider in deciding whether to grant state-funded counsel for a parent facing state-initiated action seeking to interfere with his or her parent-child relationship. Again I resort to the case headnote for a neat

summary:

Section 7 guarantees every parent the right to a fair hearing when the state seeks to obtain custody of their children. For the hearing tobe fair, the parent must have an opportunity to present his or her case effectively. Effective parental participation at the hearing isessential for determining the best interests of the child in circumstances where the parent seeks to maintain custody of the child. While aparent need not always be represented by counsel in order to ensure a fair custody hearing, in some circumstances, depending on the

seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent, the government may be required to provide an indigent parent with state-funded counsel. … [ 8 ] The G.(J.) criteria, stated at paragraphs 103-104 of the decision, were succinctly summarized by Green C.J. of this Court in J.F. v. Newfoundland and Labrador (Child, Youth and Family Services) , 2013 NLCA 27 , 336 Nfld. & P.E.I.R. 214 , at para. 35 : … Factors pointing towards the need for state-funded counsel identified in G.(J.) included: (

i) the inability of the parent to afford a lawyer or qualify for legal aid; (ii) the seriousness of the matter; (iii) the complexity of the matter; (iv) the incapacity of the parent to present his or her case effectively without the assistance of a lawyer; and (

v) the potential for the judge to assist within the limits of the judicial role. K.P.’s Application [ 9 ] The Attorney General does not dispute that Ms. P.’s

section 7 right to security of the person is engaged in this case. Neither is it disputed that Ms. P. cannot afford a lawyer and that she has been denied legal aid. I agree that these points are established. [ 10 ] The Attorney General opposed Ms. P.’s application on three bases: (1) there is no potential merit to her appeal; (2) the matters under appeal are not complex; and

(3) K.P., with the assistance of the Court, would be able to effectively argue her appeal without the assistance of counsel. [ 11 ] Leaving aside the merit of Ms. P.’s appeal for the moment, the issue respecting Ms. P.’s application is whether she can receive a fair hearing of her appeal without counsel to represent her. In deciding this issue, I will consider the G.(J.) factors that remain in contention . I will then address the Attorney General’s argument respecting the merits of Ms. P.’s appeal. The Seriousness of the Matter [ 12 ] The record discloses that Ms.

P. was well known to Child, Youth and Family Services. Concerns about her ability to parent her children and inappropriate goings on in their home had caused the authorities to intervene on several occasions over the years. The record also discloses efforts to assist Ms. P. with her parenting and to protect the children. Despite these interventions, Ms. P. retained custody of her children until the Manager removed them and initiated continuous custody proceedings in 2013. Since then, Ms. P. has continued to see her children from time to time pursuant to various arrangements.

The elder child is now 16 years old and the younger child is 7 years old. [ 13 ] The Judge observed that Ms. P. sincerely loves her children. I am of the same view, and I accept that she sincerely wants to care for them in her own home. [ 14 ] While it is not disputed that Ms. P.’s security of the person is engaged, how Ms.

P.’s security of the person is engaged, her reaction to the determinations that she is not a fit parent, state intrusion into and inspection of her private life, as well as the resulting stigma and her distress over losing her parental status inform, in some measure, the seriousness of the matter. It was clear to me from Ms. P.’s application, her notice of appeal, the record, and her submissions to this Court, that she is very upset, distressed, and anxious about permanently losing custody of her children.

She submitted that she is particularly aggrieved by the Court’s findings respecting her own health issues and how they have impacted her parenting. Ms. P. impressed me as taking her appeal seriously and as being desperate to give it all she has so as to ensure that she does everything she can to avoid losing custody of her children. This is to say nothing more than that for her, the stakes of her appeal are enormously high, and that she is aware that they are high. In this regard, I agree with MacDonald C.J. of the Nova Scotia Court of Appeal who said in P.G.B. v.

Nova Scotia (Community Services) , 2014 NSCA 113 , 1126 A.P.R. 44 , at para. 8 : It is hard to think of a higher interest than that of a parent whose children have been placed in the permanent care of the state. … [ 15 ] I would also say that the stakes are high for society. The state has a responsibility to protect children, and this responsibility is often a huge challenge to vindicate.

However, when the state seeks continuous custody of a parent’s children, and there is resistance to that state action, the courts responsible for protecting individual Charter rights, must be vigilant to ensure that the parent-child relationships in play are not unfairly interfered with. This is for the benefit of parents, children, and all society. A family unit, in whatever form, is a foundational building block of our society, and should not be interfered with lightly. Accordingly, I regard the seriousness of this matter as high. The Complexity of the Appeal [ 16 ] The Attorney General asserts that Ms.

P.’s appeal is not complex in that it does not involve “intricate or novel areas of legal arguments”. From my review of the Judge’s comprehensive decision and Ms. P.’s notice of appeal and application, I agree that her appeal does not raise any novel legal issues. However, I cannot agree that the issues she raises are not intricate. She asserts that certain evidence was not considered by the Judge and that her trial was unfair in some respects.

Such assertions are usually tangled questions of mixed fact and law, and in family law cases in particular often involve the exercise of a judge’s discretion, to which much deference is properly owed. These exercises of discretion are often not revealed in a decision, however comprehensive, or by the record. Accordingly, from a fairness perspective, it is important that an appellant have the opportunity to effectively present her arguments, so that both she and society can rest assured that whatever the final result, it was obtained by a fair process.

Unless state action seeking custody of a parent’s child is seen to be fair, the public will have no confidence in the state authorities in carrying out their responsibilities or in the courts who have the responsibility to uphold Charter rights and freedoms.

The Ability of Counsel to Assist the Appellant [ 17 ] The Attorney General maintains that this Court could assist Ms. P. so as to ensure that her appeal can be fairly adjudicated. [ 18 ] Courts generally, and this Court in particular, try their best to assist self-represented litigants in navigating legal proceedings.

While courts have some accepted methods and tools at their disposal to do so, they remain limited in their ability to assist particular litigants, for too much assistance given to one litigating party can be perceived to be, or actually be, unfair to the other litigating party or parties in the matter. Moreover, absent blatant or unusual circumstances, it is my view that it is the role of counsel and the parties, not of the courts, to identify and argue grounds of appeal.

Courts are not as well equipped as parties and their counsel to identify grounds of appeal nor are they as fully informed on the issues they identify as they could be if they heard adversarial argument because they do not know the history and context of the case. The history, context and issues for appellate consideration are more apt to be known and appreciated by counsel through personal client contact and dealings with opposite counsel which inform their perspective and approach to the case. Accordingly, while I agree with the Attorney General that this Court could assist Ms.

P. with her appeal, I am not convinced that, in her case, the Court’s assistance of Ms. P. would fully vindicate a fair adjudication of her appeal. I do not think it would be appropriate for this Court to delve into the history and trial of this case so as to “mine the record”, as the Chief Justice put it at paragraph 52 of J.F., to assure itself that grounds of potential appeal would be detected. Ms. P.’s Ability to Effectively Argue her Appeal [ 19 ] I note that the Attorney General did not specifically address Ms. P.’s own ability to effectively argue her appeal. [ 20 ] In assessing Ms.

P.’s ability to effectively present her appeal to this Court, I have reviewed her notice of appeal, her application, and the Judge’s decision. I also heard Ms. P.’s oral submission to this Court. My assessment leads me to make the following observations. Ms. P.’s notice of appeal and application for state-funded counsel list issues and arguments in a disorganized and rather jumbled fashion. As such, they belie a failure to appreciate how to state and present the grounds and issues she seeks to argue. Her oral presentation in this Court did not clarify or otherwise improve on her written submissions.

In fact, her inability to focus on the issues of concern in her application further demonstrated to me that she is unable to effectively present her appeal. In this regard, I note references in the Judge’s decision to Ms. P.’s lack of insight. I, too, observed a lack of insight on Ms. P.’s

part into the issues at play on her application, as opposed to those at play on her appeal. I am therefore not convinced that Ms. P. is able to effectively argue her appeal. [ 21 ] Accordingly, in balancing the G.(J.) criteria, I am of the view that the matter is very serious, that the issues are tangly, and that Ms. P. cannot effectively present her appeal even with this Court’s assistance.

The Merits of the Appeal [ 22 ] At paragraphs 50 and 51 of J.F. , the Chief Justice remarked that: In principle, if there is no discernible merit in the appeal, there would be no justification for proceeding to consider the matter further. The reality is that the ability of an unrepresented appellant to demonstrate that the appeal has some discernible merit may be seriously compromised by the lack of legal assistance in the drafting of the notice of appeal and in the presentation of the argument on the application.

As well, the record, at the time of the application, will often be very sparse and the Court will therefore be hampered in conducting its own examination of the record to see if there might be something present that would merit appellate consideration. … [ 23 ] Counsel for the Attorney General argues that Ms. P.’s appeal has no merit, and that it is not “in the public interest to invest public legal services and time into unmeritorious appeals that have no chance of success.” Counsel points to the fact that both Legal Aid and the Legal Aid Board have denied Ms.

P. counsel on the basis that her appeal has no merit, and that their decisions should be considered by this Court. Counsel also submits that the judge’s decision appears to be a “thorough, well-reasoned decision that carefully goes through the evidence submitted at the hearing and correctly applies the appropriate legal tests”. [ 24 ] I agree that the Judge’s decision appears to be all of those things. I also agree that I can properly consider the Legal Aid opinions, and I have. However, Ms. P. asserts that it is what is not in the Judge’s decision that concerns her.

I do not mean to suggest that the Judge’s decision is in any way lacking. Rather, I mean to say only that the issues Ms.

P. raises, like the Judge’s alleged failure to acknowledge historical circumstances related to removal of the children, the omission of relevant evidence, misapprehension of admitted evidence, issues involving the improper exercise of judicial discretion regarding disclosure of documents and second opinions, procedural matters and general fairness, are not readily discernable from the judgment and may only be able to be properly addressed through the appeal process. [ 25 ] I agree with the Chief Justice that some appeals are so obviously devoid of merit that it would be useless to appoint counsel to represent a potential appellant.

This threshold is a high one, though, and in my opinion, is somewhat akin to the test for striking pleadings. Accordingly, and despite my seeing no apparent error on the face of the Judge’s decision, I am unable to say that Ms. P.’s appeal has no discernable merit. [ 26 ] In the result, I am of the opinion that fairness dictates that Ms. P.’s application for state-funded counsel to assist her in presenting her appeal be granted. Accordingly, I ordered that Ms.

P. had until May 31, 2017 to engage counsel who would be willing to represent her on her appeal on the basis of payment as agreed between counsel and the Attorney General and failing agreement to be taxed by the Registrar on the basis of the standard fee

schedule for outside counsel retained by the Government of Newfoundland and Labrador. If Ms. P. were unable to find counsel, I ordered that she is required to notify the Court so that the Court would do so. M.K. and R.P.’s Application [ 27 ] In J.F. this Court considered a grandmother’s application for state-funded counsel to represent her on her appeal of a decision

denying her custody of a grandchild, whose parents were not involved in the proceeding. In denying the grandmother’s application, Green C.J.N.L. applied the G.(J.) criteria and also considered the merits of J.F.’s appeal.

In so doing, the Chief Justice acknowledged that a grandparent could succeed on such an application, saying: [46] … it remains theoretically possible for a person who does not have physical custody of the child but who is nevertheless involved in parenting the child or is otherwise involved in the child’s life and care to a significant degree to qualify, even if the involvement could not be said to amount, technically, to custody.

In such circumstances, a grandparent or other person who had assumed caregiving responsibilities might also be able to claim that their Charter rights are being breached, for which the remedy of provision of state- funded counsel could, in principle, be available. [ 28 ] While theoretically possible for grandparents to succeed in an application for state-funded counsel, grandparents must still meet the criteria under

section 7 of the Charter . Accordingly, Mr. K. and Mr. P. must demonstrate that their

section 7 rights to security of the person have been engaged, and that they are in jeopardy of breach by an unfair hearing of their appeal. [ 29 ] I would first observe that the state has not initiated any action in relation to the grandparents. Neither have the grandparents demonstrated that the state action against their daughter is effectively action against them. They chose to apply for custody of Ms. P.’s children, on a conditional basis, and their appeal relates to the Judge’s dismissal of their application. They voluntarily chose to engage in the state’s proceeding against their daughter.

Further to this point, both grandparents are in a position to continue to see their grandchildren. G.(J.) requires that state-initiated action seeking to interfere with an applicant’s relationship to children is necessary before that applicant’s

section 7 right to security of the person can be engaged. This is not to say that a grandparent’s

section 7 right could never be engaged in a state action against a parent, for it is possible that such a state action could seek to specifically interfere or even effectively interfere with a grandparent in a way that engages his or her

section 7 rights. It is to say only that in this case, there was no state action taken in relation to Ms. K. and Mr. P. which engaged or threatened a deprivation of their respective rights to security of the person under

section 7 of the Charter . [ 30 ] The grandparents of Ms. P.’s children, Ms. K. and Mr. P., have lived separate and apart for many years, although they remain on friendly terms. They have each had a relationship with both of their grandchildren over the years although they have never had formal custody of or access to them. They continue to see their grandchildren to the extent that they are able and that the Manager can arrange, although Ms. K. has elected not to see her grandsons for the past year because “she finds it too hard”. Mr.

P., however, advised the Court that he still sees his grandchildren and recently spent a Saturday with his elder grandchild. While Ms. K. and Mr. P. clearly love their grandchildren, their relationship with them has been no more than what is considered typical of a grandparent-grandchild relationship. Their respective involvements in their grandchildren’s lives, while loving and caring, has been to support their daughter’s care of them when needed and is otherwise normal grandparent involvement. [ 31 ] Ms. K. and Mr.

P. argue that their respective rights to security of the person are engaged due to the stress, anxiety and upset they claim to have suffered as a result of the Manager’s proceedings in relation to their daughter. In this regard, I refer to Chief Justice Lamer’s words at paragraph 60 of G. (J.) that: 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. [ 32 ] M.K. and R.P. presented nothing to me that comes close to “a serious and profound effect” on their psychological integrity.

Neither grandparent had decision-making involvement in their grandchildren’s lives, or had a level of engagement in their lives in the sense which Lamer C.J. described in G.(J.) (paragraph 61 ) or to which Green C.J.N.L. adverted in J.F. (paragraph 46 ). Neither grandparent has been subjected to state-inspection of or intrusion into their lives, and neither has suffered a loss of parental status. In short, the grandparents have not suffered the losses and insults required to engage their

section 7 rights to security of the person. [ 33 ] In so deciding, I do not wish to minimize the stress and anxiety Ms. K. and Mr. P. have suffered as a result of their daughter’s and grandchildren’s involvement in child protection proceedings, and the care of love they have for their daughter and grandchildren. However, I see their stresses and anxieties as “ordinary stresses and anxieties that persons of reasonable sensibility would suffer” ( G.(J.) paragraph 59 ) as a result of their loved ones being entangled in the state-initiated proceedings. [ 34 ] For the above reason I dismissed the grandparents’ application. Application allowed in part.