2011 NLCA 1, 2011 NLCA 1

Date: 20110104 Docket: 10/0118 Citation: L.T.. v. Director of Child, Youth and Family Services (No. 2), 2011 NLCA 01 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : L.T. and S.H. APPLICANTS AND : DIRECTOR OF CHILD, YOUTH AND FAMILY SERVICES RESPONDENT Coram: Green, C.J.N.L. Court Appealed From: Supreme Court of Newfoundland and Labrador Unified Family Court 2008 02U 0527 Application Heard: December 14, 2010 Reasons for Judgment Rendered: January 4, 2011 Reasons for Judgment by Green, C.J.N.L. Counsel for the Appellants: Brian K. Wentzell Counsel for the Respondent: Brian Furey, Q.C.

Green, C.J.N.L.: [ 1 ] The intended appellants, L.T. and S.H. applied, under rule 57.05 of the Rules of the Supreme Court, 1986 for an extension of the time required for filing a notice of appeal from a continuous custody order relating to their two children made by a judge of the Family Division in favour of the Director of Child, Youth and Family Services. [ 2 ] The decision granting continuous custody to the Director was filed on August 18, 2010 and the formal order perfecting the decision on August 25, 2010.

The parents attempted to file a notice of appeal on September 30, 2010, which was 6 days after the expiration of the normal 30 day appeal period. See rule 57.02. As a result, they filed an application for extension of time. [ 3 ] They had been represented by legal aid counsel at the trial but had been refused counsel for the purpose of any appeal. When the application for an extension was initially called in Court, it quickly became apparent that the application, drafted, as it was, without the assistance of counsel, was deficient.

It did not address the factors that the Court would normally consider in dealing with such applications and, in particular, did not address whether there was any potential merit in the proposed appeal. As a result, I made an order

appointing counsel for the parents to advise and represent them with respect to, amongst other things, the preparation and presentation of a proper application for extension of time. See L.T. v. Director of Child, Youth and Family Services, 2010 NLCA 70 . [ 4 ] Counsel for the parents subsequently prepared and filed an application for extension. Counsel for the Director opposed the application. I have concluded that I should not exercise my discretion to grant an extension.

What follows are my reasons for that conclusion. [ 5 ] Rule 57.05 allows the time for appealing to be extended where “in the opinion of the Court, refusal to do so would create an injustice”. In Law Society ( Newfoundland ) v. Fahey, 2000 NFCA 19 , Cameron J.A. provided a non-exhaustive list of factors to consider in determining whether refusal to grant an extension of time would create an injustice. Those factors were said to include: (

i) whether the appellant had a bona fide intention to appeal within the appeal period; (ii) whether there is a reasonable excuse for the failure to comply with the time limit stipulated by the rule; (iii) the potential merits of the appeal; and (iv) the presence of any exceptional or special circumstances justifying or working against the fairness of the extension. [ 6 ] With respect to the fourth factor, one of the matters to be considered is the possibility of prejudice - and its relative extent - to the parties if the extension were granted or denied.

In cases involving the welfare of children, it is worth noting that the focus on “special circumstances” means that it is not only prejudice to the interests of the actual parties to the litigation that must be considered but also the potential prejudice to and interests of children affected by the decision that must be weighed in the balance. [ 7 ] Counsel for the intended appellants submitted that the first two of the factors were clearly established because, during the running of the appeal period, they applied to legal aid for counsel to be appointed for the purpose of appealing the order and by the time they had been informed that their applications had been rejected, they did not have time to prepare an appeal on their own behalf and file it with the Court.

Counsel for the Director did not seriously take issue with this submission. Nor do I. [ 8 ] The main challenge to the application for extension relates to the Director’s submissions that: (

a) there is no merit to the appeal; and (

b) there would be serious prejudice to the children if the Director’s plan to facilitate adoption of the children were to be delayed by an appeal. I will deal with these two matters in greater detail. Potential merits of the appeal [ 9 ] The background to the litigation is summarized in the trial judge’s judgment as follows: [2] Both of the children were apprehended at birth by warrant. There have been two temporary orders … pertaining to [the older child, now nearly two and a half years old] with the application for continuous custody being made March 5, 2009.

The Director’s first application for [the younger child, now a little more than a year old] was one of continuous custody filed on October 6, 2009. Both children have resided together with the same caregiver couple in the Bonavista area. [3] The mother, now 25 years old, has a history of drug abuse and prostitution while the father, now 35 years old, is cognitively delayed, has a history of drug abuse, and several criminal convictions.

Both children have special needs, each having been diagnosed with a type of Fetal Alcohol Spectrum Disorder (FASD). [The younger child] also has a serious kidney disorder requiring surgery. [4] The parents have stopped using drugs, obtained accommodation, established a relationship as a couple [which has apparently not lasted - I was told at the hearing of the application that they have now separated] and believe they are now, or will be in the near future, able to parent both children in their own home. [ 10 ] The trial lasted 18 days.

In the middle, the judge adjourned the case to allow for a comprehensive parenting capacity assessment of the parents. This resulted in over 300 hours of direct observation with the parents and their children over a two month period as well as interviews, questionnaires, testing and review of previous psychological tests. [ 11 ] The trial judge identified the two legal issues as: (

i) whether the children were in need of protective intervention; and (ii) if so, what was the appropriate remedy. [ 12 ] She addressed the burden of proof and the applicable provisions of the Child, Youth and Family Services Act , reviewed the evidence of both lay and professional witnesses in detail, considered the submissions of the parents and concluded: [86] Despite an intensive effort with experienced social workers acting as advisors and parent coaches in the Spring of 2010, I am satisfied that the evidence shows that neither parent has consistently and effectively been able to meet the basic physical and safety needs of the children. … Neither parent has demonstrated that they have a consistent ability to independently interact with the children, create learning opportunities for the children or to direct their behavior and guide their development. … [108] Given the combination of the parental weaknesses which have been identified by the social workers and assessors through their observations and evidence which I have outlined previously and accept and the special needs and vulnerabilities of these children, I am making the finding that [the two children] are children in need of protective intervention… [ 13 ] Turning to the issue of the appropriate remedy, the judge considered the submissions of the father that there should be a three- month temporary custody order, rather than a continuous custody order, to allow the parents more opportunity to demonstrate that they could parent the children.

She also addressed the submission of the mother that the appropriate remedy was to return the children to the parents pursuant to a supervision order monitored by the Director. The judge reviewed a number of reported decisions in this and other jurisdictions concerning applications for continuous custody orders, noting factual distinctions and similarities. She found that since the children’s births the services provided to the parents by or through the Director by way of assistance and education met the requirements of

section 8 of the Act . She also acknowledged that the test to be applied was what was in the best interests of the children. She specifically adverted to the factors outlined in

section 9 of the Act that are to be considered in determining the best interests of the child,

including the children’s safety, development needs, the importance of stability and continuity in the children’s care and the effect of a delay in the disposition of a judicial or other proceeding. She concluded: [136] Counsel for the parents stated that a further three month order would not significantly delay future planning for these children and that the parents would benefit from an opportunity to further develop their skills to meet the needs of the children. In my view, further delay would not be in the best interests of the children.

The parents have had more than two years to deal with their problems and develop the necessary parenting skills.

It is my assessment, based on the evidence provided by the psychologists and the assessment team, that any further delay will not enhance the abilities of the father. … The mother has made choices and reached conclusions that demonstrate she does not appreciate the risks, physical needs, safety concerns, developmental needs of the children and the family’s need for supportive services and in my view will not be able to adequately meet the parenting needs of these children. [137] The future of these children and their opportunity for a permanent home where the caregivers will have the skills necessary to meet their special needs and minimize negative impacts of FASD slips away a little bit every day. … The reality is that a further three month temporary order may result in no significant parenting changes, another lengthy trial and a considerable period of time before a final disposition would be made.

If the children were to return to the care of their parents, even with supports and services, which the parents do not believe they require, it is my view, having heard from the psychologists, social workers, addictions counselors and physicians, that the risk that the children would return to care is extremely high.

It would be inappropriate and not in the best interest of the children, in my view, to take this risk … [ 14 ] As a result of those conclusions, the judge made orders placing both children in the continuous custody of the Director. [ 15 ] Counsel for the intended appellants submitted a draft notice of appeal that he proposed to file if an extension were granted.

Aside from making the general assertion that the trial judge erred in law or mixed fact and law in finding that the children were in need of protective intervention, without stating any specific errors that were made by the judge in reaching that conclusion, the only specific grounds of appeal asserted were that the judge erred in law or mixed fact and law in: (

a) granting a continuous custody order when the option of making a temporary order was still available; and (

b) failing to consider a less intrusive option than a custody order, namely a supervision order. [ 16 ] Counsel pointed out that he was not counsel at trial and the transcript of the evidence had not yet been prepared.

Therefore, he said, it was not possible to assert more specific grounds based on specific errors in the conduct of the trial. [ 17 ] Counsel was also not able, however, to point to any portion of the written sixty-one page decision of the trial judge as containing any errors in her statement of the applicable legal principles or any flaw in her analytical approach or the existence of any inconsistencies or apparent errors in the judge’s treatment of the evidence. [ 18 ] I conclude from this that the intended appellants are simply saying at this time that they disagree with the result in the case and wish an opportunity to argue again for a different conclusion.

They are not able to point to any legal or factual errors made by the judge in her decision that could have the potential of convincing an appellate court that there is a basis for overturning the decision and either ordering a new hearing or substituting a decision more favourable to the appellants. [ 19 ] It is for this reason that counsel for the Director asserts that there is no demonstrable merit in the appeal and that, considering the interests of the children, no extension should be granted. [ 20 ] Generally, to establish that the proposed appeal has potential merit, it is incumbent on the intended appellant to identify some basis on which this Court could conclude that the trial judge erred in principle, or significantly misapprehended the evidence, or that he made an award which is clearly wrong: Fitzgerald v.

Foote, 2003 NLCA 25 at paragraph 26 . Counsel for the parents submitted, however, citing Stockwood v. Hayden, 2010 NLCA 39 , paragraph 21 , that the threshold for establishing whether an appeal has demonstrable merit is of necessity a low one when the appeal record is “sparse”. In my view, he reads too much into what was said in Stockwood . In that case, I concluded that there was some merit demonstrated even on the meager appeal record that existed, stating that the appeal was not frivolous.

The degree of merit in Stockwood , while low, was, when taken in consideration of all other factors, regarded as sufficient to justify an extension in the circumstances of that case. [ 21 ] It is important to appreciate that the existence of potential merit, and the degree of its potential strength, is a “factor” to be considered and balanced against the other considerations in the case; it is not a hurdle of a fixed height which, if cleared, will render its further consideration unnecessary in the determination of whether there ought to be an extension.

The stronger the apparent merit of the case, the greater effect it may have in assessing the other considerations in the case; conversely, the weaker the apparent merit, the more likely it may be for other factors to be determinative. [ 22 ] In this case, no potential error in the trial judge’s judgment has been demonstrated. No possible legal or factual errors have been pointed out. I have reviewed the written decision to see if there might be any apparent appeal issue that was overlooked by counsel. I have not found any. The judgment appears to be carefully and thoroughly crafted.

It touches on all of the relevant legal principles and addresses the sorts of considerations that would go into a determination as to whether children are in need of protective intervention and, if so, what sort of remedial order should be granted. There was extensive consideration given to whether some remedial disposition other than a continuous custody order, such as a temporary order or a supervision order, was indicated. It cannot be said, as alleged in the draft notice of appeal that the judge failed to consider such matters. There also appears to be a careful consideration of the evidence.

There is no indication of any error of law or principle made by the trial judge and there is certainly nothing that is immediately apparent from the judgment that could form the basis of an argument that the decision is clearly wrong or that the judge made an overriding and palpable error of fact. [ 23 ] While I recognize the difficulty that counsel who did not appear at the trial may have in formulating a complete appellate argument in the absence of access to a transcript of the evidence – at least in respect of arguments based on evidentiary rulings (if any) and possible misapprehension of the evidence – there still should be something presented to the Court that suggests a possible arguable ground of appeal.

That is not the case here. The judge engaged in a thorough review of the evidence and the written decision does not disclose any apparent analytical defect.

[ 24 ] I conclude, therefore, that the intended appellants have not demonstrated that there is any arguable merit in the proposed appeal. Exceptional Special Circumstances [ 25 ] Counsel for the intended appellants submits, however, that the absence of any apparent grounds of appeal should not be determinative in this case. He stresses that an order for continuous custody has the most serious of consequences for the parents – the severing of the parental bond, effectively on a permanent basis.

Because of the importance of the issue and the short period of time by which the parents missed the appellate window, justice would be served in allowing them an extension. Otherwise, counsel submits, there would be extreme prejudice to the parents.

He points out that if they had filed their notice of appeal six days earlier they would have had a right to have their appeal heard by the Court no matter how lacking in apparent merit the appeal was. [ 26 ] While it is true that an appeal filed within the appeal period stipulated by the rules of court will have to be heard by an appeal panel no matter how weak the grounds of appeal may be (subject to a possible preliminary application to strike on the grounds that the appeal is frivolous), that is because our appellate system operates on the basis of allowing at least one appeal as of right from final, as opposed to interlocutory, trial decisions.

A reasonable time must therefore be allowed for the exercise of that right. That does not mean, however, that the right can be exercised at any time. It is reasonable that a cut-off point which, inevitably, must be somewhat arbitrary, be established. It is not, in the strict sense, a limitation period. Within the appeal period, the system must tolerate the possible hearing of unmeritorious appeals. Outside of that period, however, the right to proceed with an appeal depends on whether denying it would create, in the words of rule 57.05, an “injustice”.

The burden then shifts to the person wanting to appeal to show that there is nevertheless some justification for accessing the system other than simply slowing down final resolution by proceeding with what appears to be an unmeritorious case. That involves consideration of a variety of factors, but of considerable importance among them will be a consideration of whether there is really any point to the appeal; in other words, whether there is any demonstrable merit.

This approach is a reasonable balance between allowing the processing of an apparently unmeritorious appeal indiscriminately and at any time, with consequent unnecessary engagement of the system, and screening all appeals for potential merit even if processed promptly. [ 27 ] Accordingly, the fact that the intended appellants here might have been able to have their appeal heard, regardless of lack of merit, if they had filed within the stipulated appeal period, is not a consideration of any importance where they have not in fact complied with the appeal period. (I exclude from this discussion a situation where the missing of the deadline involves just minutes or such another short period that can be characterized as de minimis. ) [ 28 ] Counsel for the Director, on the other hand stresses the potential prejudice to the children if an apparently unmeritorious appeal were to be allowed to proceed, thereby delaying the plans of the Director for placement of the children in a situation that is regarded as in their long term best interests.

He points out that there will be a delay at least for several months to enable the transcript of this lengthy trial to be completed, the appeal book prepared and facta to be written and filed. While acknowledging that the consequences of a continuous custody order are serious for the parents, he submits that the interests of the children trump those of the parents in these circumstances, where there does not appear to be any merit in the appeal. [ 29 ] I agree with counsel for the Director.

It is worth repeating what the trial judge observed about the delay that would result if a temporary, instead of a continuous, custody order were made and a further trial had to be held to reconsider continuous custody at a later date: [137] The future of these children and their opportunity for a permanent home where the caregivers will have the skills necessary to meet their special needs and minimize negative impacts of FASD slips away a little bit every day.

The social workers advise that the older the children are the more difficult it is to find a permanent home. [ 30 ] This could be equally said about further delays in the appellate process. Considerations and Disposition [ 31 ] Taking all factors into consideration, it has not been demonstrated that the proposed appeal has any merit and there would be significant prejudice to the interests and well-being of the children for no just purpose.

I have concluded, therefore, that it would not be just to allow an extension of time in these difficult circumstances and I ought therefore to exercise my discretion to deny the application for extension of time. [ 32 ] The application is therefore dismissed. J. D. Green, C.J.N.L.