2017 NLCA 55, 2017 NLCA 55

D.M. (appellant) v. Manager of Children and Youth Services (applicant/respondent) (16/118) Indexed As: D.M. v. Newfoundland and Labrador (Children and Youth Services) 2017 NLCA 55 2 C.A.N.L.R. 202 Court of Appeal of Newfoundland and Labrador Green C.J.N.L. September 12, 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 applicant, Manager of Children and Youth Services, who was the respondent to an appeal of an order of continuous custody of children J. and A. in a child protection proceeding, applied for an order striking the appellant father’s notice of appeal under rule 36(1) (

a) and (

e) of the Court of Appeal Rules , NLR 38/16 on the grounds that the appeal was without merit, and the father had failed to perfect the appeal in a timely manner. The Manager also asserted there was urgency for a final order. Since filing his notice of appeal, the father has taken no steps to prosecute the appeal. Held: Application allowed. Green C.J.N.L.: The Manager encountered difficulties in trying to serve the father with the application. At the hearing of the application to strike, the father did not appear.

Normally, the failure to effect personal service and doubt as to whether the responding party may have known of the appearance date would result in a postponement. However, given that: (

i) there has been a year’s delay already; (ii) there has been an absence of any indication on the part of the father of an interest in proceeding with the appeal; (iii) the stated grounds in the notice of appeal are tenuous, at best; and (iv) the policy of the Court of Appeal Rules of expediting all proceedings involving children ( Rule 9 ), the Court decided that it should proceed with the application. The Court of Appeal Rules do not expressly require personal service. “Service” is not defined in the Judicature Act, RSNL 1990, c. J-4 or the rules.

Rule 28(6) simply requires delivery of a copy of the document to the address for service. Rule 28(5) provides that the address for service in this Court is the address for service used in the Court below “unless a party notifies the Court and other parties of a change in the address for service”. The notice of appeal filed in this Court requires the appellant to designate a new address for service (Rule 8(4)(e); Form 1). In the vast majority of cases the address for service of an appellant for the purpose of the Court of Appeal Rules will be that stated in the notice of appeal.

As a matter of procedural fairness, one would expect that service of a document, especially one that could result in the striking of a notice of appeal, would be personally delivered to the affected party or at least involve other steps that would have a reasonable prospect of bringing the matter to the party’s attention. However, a party who does not keep the Registry apprised of a current address for service runs the risk that matters may proceed without his or her knowledge and in his or her absence.

Given the lack of a forwarding address for the appellant and the inability or unwillingness of his mother to indicate his whereabouts, the steps taken by the Manager to effect service and to bring the application to the father’s attention were reasonable. The Court therefore made an order nunc pro tunc providing that the service on the father’s mother was valid service. There being nothing in the record to suggest any justification for the failure on the part of the father to proceed to perfect the appeal or at

least to contact the court with an explanation for the delay and a request for further time. There was no apparent merit in the appeal. The notice of appeal was therefore struck out. Counsel: No appearance, for the appellant; Annette Duffy, for the applicant/respondent. This application was heard and decision rendered orally on September 5, 2017 by Green C.J.N.L.

The following Memorandum of Disposition was filed on September 12, 2017 by Green C.J.N.L. ______________________________________________________________ Green C.J.N.L.: [ 1 ] In this child protection proceeding, which resulted in an order in favour of the Manager of Child, Youth and Family Services for continuous custody of two children, J. and A., now aged 13 and 3 respectively, the Manager applied for an order striking the father’s notice of appeal under rule 36(1) (

a) and (

e) of the Court of Appeal Rules [1] , NLR 38/16 on the grounds that the appeal was without merit, and the father had failed to perfect the appeal in a timely manner. The Manager also asserted there was urgency for a final order, especially for A. so that adoption planning could be completed. [ 2 ] At the trial in the Family Division, the mother opposed the Manager’s application in respect of both children and asked they be returned to her. Alternatively, she asked for a further temporary custody order rather than continuous custody.

The father, though separately represented, opposed continuous custody of A. (he was not the biological father of J.) and supported the mother’s request for return of both children to her. [ 3 ] J. had been in care of his paternal grandparents under the Manager’s supervision since the age of seven, when he had been apprehended from the mother due to concerns about criminal and drug activity of the parents. A. was apprehended at birth due to ongoing concerns with the mother and the criminal record of the father and has never been in the custody of either parent.

In fact, the father has rarely had any physical contact with A. [ 4 ] The judge of the Family Division granted an order of continuous custody on the grounds that the children’s safety, health, well- being and their physical, emotional and developmental needs demanded it (2016 NLTD(F) 27, paragraphs 45-48). J. was to continue in the care of his grandparents and A. was to be considered for adoption placement. [ 5 ] The decision was given on September 16, 2016 and the father filed a notice of appeal on September 30, 2016. The notice of appeal is not expressly limited to an appeal from the order respecting A.

Nevertheless, in view of the fact that the father is biologically related only to A, it is apparent that his challenge on appeal is only in respect of that child. The mother did not appeal the order with respect to either child. [ 6 ] Since filing his notice of appeal, the father has taken no steps to perfect the appeal by filing a transcript of the trial, an appeal book or a factum. For a portion of the intervening year, he was incarcerated. He applied for legal aid on the appeal but his application was denied.

Since his release from Her Majesty’s Penitentiary he had made no attempt to contact the Court. [ 7 ] The Manager filed her application to strike the appeal on August 22, 2017. Difficulties were encountered in trying to serve the father with the application. The last known address available when he was released from the penitentiary was a St. John’s address for his mother which was supplied by officials at the penitentiary. Legal Aid had no record of a current address. The process server attended at the father’s mother’s address in the hope of contacting him there. He was not present.

Although the mother did not provide an alternative address, it appeared from her knowledge of the matter that she was in communication with the father. The process server left the papers with the father’s mother and asked her to deliver them to him. She accepted the papers. [ 8 ] At the hearing of the application to strike, the father did not appear.

Normally, the failure to effect personal service and doubt as to whether the responding party may have known of the appearance date would result in a postponement of the hearing to allow for further efforts at personal service or for a formal application for substituted service. In this case, however, counsel for the Manager expressed concern about further delay and the existence of the outstanding appeal on the ability of the Manager to proceed with final adoption planning for A. Given that: (

i) there has been a year’s delay already; (ii) there has been an absence of any indication on the part of the father of an interest in proceeding with the appeal; (iii) the stated grounds in the notice of appeal are tenuous, at best; and (iv) the policy of the Court of Appeal Rules of expediting all proceedings involving children ( Rule 9 ), I was satisfied that a way should be found to proceed with the application forthwith. [ 9 ] Notwithstanding the fact that personal service of court process has traditionally been regarded as the norm, the Court of Appeal Rules do not expressly require it. [ 10 ] The only provisions in the rules dealing with service are those found in rule 28:

(1) Unless otherwise prescribed in these rules or directed or ordered by the Court, a party shall file with the Court 4 copies of every document and without delay shall serve one copy of the document on each party. . . .

(3) In the case of an application, unless otherwise prescribed in these rules or directed or ordered by this Court, a party shall file with the Court 2 copies of every document and without delay shall serve one copy of the document on each party . . . .

(5) An address for service used in the Court appealed from shall be used for purpose of serving a document under subsections (1) or (3) unless a party notifies the Court and other parties of a change in the address for service.

(6) A party shall serve a document on another party by delivering a copy to the address for service . [Emphasis added] [ 11 ] “Service” is not defined in the Judicature Act RSNL 1990, c. J-4 or the rules. Rule 28(6) simply requires delivery of a copy of the document to the address for service. [ 12 ] Rule 28(5) provides that the primary source of an address for service in this Court is the address for service used in the Court below “unless a party notifies the Court and other parties of a change in the address for service”.

In fact, the notice of appeal filed in this Court requires the appellant to designate a new address for service (Rule 8(4)(e); Form 1) which could be the same or different than that used in the Court below.

Thus, except where the notice of appeal is not properly completed, in the vast majority of cases the address for service of an appellant for the purpose of the Court of Appeal Rules will be that stated in the notice of appeal. [ 13 ] That said, generally as a matter of procedural fairness, one would expect that service of a document, especially one that could result in the striking of a notice of appeal, would be personally delivered to the affected party or at least involve other steps that would have a reasonable prospect of bringing the matter to the party’s attention.

Indeed, that is a fair implication of other provisions in the rules. See for example, rule 28(8) and Form 3 which provide for proof of service that requires acknowledgement of receipt by way of signature or identification on delivery or confirmation of delivery by mail or courier. Since personal service is not an absolute requirement, the key question in any case is whether fair and reasonable steps have been taken to bring the requirement for appearance in court, and the nature of the proceeding, to the attention of the party.

Even where personal service or its knowledge-imparting equivalent is indicated, exceptions must be recognized to ensure that the court’s process is not stultified. Accordingly, substituted service is sometimes permitted even if it does not have the effect of actually bringing the matter to the other party’s attention. In that way, no party will have an ability to frustrate the process by dropping out of sight and failing to update his or her address for service in the Registry.

At bottom, a party who does not keep the Registry apprised of a current address for service runs the risk that matters may proceed without his or her knowledge and in his or her absence. [ 14 ] In this case, the appellant’s notice of appeal gave Her Majesty’s Penitentiary as his address for service. Counsel for the Manager was nevertheless right not to rely on service by delivery at the Penitentiary only, when it was known the appellant was no longer there, without first taking other steps to attempt to bring the application to his attention.

Given the lack of a forwarding address for the appellant and the inability or unwillingness of his mother to indicate his whereabouts, the steps taken by the Manager to effect service and to bring the application to the father’s attention were reasonable.

Furthermore, given the need for the Manager to make appropriate care arrangements for A. in her best interests and in a timely manner, further delay to allow for further efforts at service would not likely have been productive. [ 15 ] I am satisfied that had the Manager made application for substituted service, an order providing for service by leaving the papers with the father’s mother with a request that they be passed on to him would have been a likely and reasonable result.

In such circumstances, I made an order nunc pro tunc providing that the service on the father’s mother was valid service. [ 16 ] Accordingly, I proceeded to deal with the Manager’s application. There being nothing in the record to suggest any justification for the failure on the part of the father to proceed to perfect the appeal or at least to contact the court with an explanation for the delay and a request for further time, and given the lack of any apparent merit in the stated grounds of appeal, I was satisfied that the notice of appeal should be struck out. [ 17 ] It is ordered that:

(1) Delivery of the application to strike and related documents to the appellant’s mother on August 28, 2017 is hereby deemed, nunc pro tunc, effective and valid service on the appellant;

(2) The notice of appeal is hereby struck out. Application allowed .