2010 NLCA 70, 2010 NLCA 70

Date: 20101119 Docket: 10/118 Citation: T.(L.) & H.(S.) v. Director of Child, Youth & Family Services 2010 NLCA 7 0 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : L.T. AND S.H. INTENDED APPELLANTS AND : DIRECTOR OF CHILD, YOUTH AND FAMILY SERVICES INTENDED RESPONDENT Coram: Green, C.J.N.L. Court Appealed From: Supreme Court of Newfoundland and Labrador Unified Family Court 2008 02U 0527 Appeal Heard: November 2, 2010 Decision Rendered: November 2, 2010 Memorandum of Disposition Filed: November 19, 2010 Memorandum of Disposition by Green, C.J.N.L.

The Intended Appellant L.T. appearing on her own behalf The Intended Appellant S.H. not appearing Counsel for the Intended Respondent: Kimberley McLennan Counsel for Attorney General of Newfoundland and Labrador: Chantel MacDonald-Newhook

MEMORANDUM OF DISPOSITION Green, C.J.N.L.: [ 1 ] The intended appellants, L.T. and S.H., applied, without the assistance of counsel, for an order extending the time for filing a notice of appeal against a finding of a judge of the Family Division that the Director of Child, Youth and Family Services should be granted continuous custody of their two children, aged two and one. Instead, I made an order that they be provided with legal counsel to assist them with their application.

This is how this result came about. [ 2 ] The intended appellants requested that before the Court ruled on their extension application, they be given an opportunity to obtain counsel. The application was adjourned to enable them to complete an application for legal aid. They subsequently advised that they were denied legal aid. I indicated that even where legal counsel was unavailable under the legal aid scheme, the court still had a residual jurisdiction, within the principles in New Brunswick (Minister of Health and Community Services) v.

G. (J.), 1999 CanLII 653 (SCC) , [1999] 3 SCR 46, to appoint counsel for them. I directed that notice be given to the Attorney General to enable him to be heard before I would consider the matter further. [ 3 ] Although there is no universal free-standing right to counsel protected by the Canadian Charter of Rights and Freedoms , G. (J.) recognized that there is, in some types of child protection cases, a right to state-funded counsel for parents where they are unable to afford to pay for counsel themselves.

The circumstance where such a right may arise is where the parents’ security of the person under s. 7 of the Charter is engaged thereby triggering the application of the principles of fundamental justice. G. (J.) held that, in the context of the legislative scheme dealing with child protection in that case, a parent’s security of the person guaranteed by s. 7 was restricted because removal of a child from the care of his or her parents constitutes a serious interference with the psychological integrity of the parents.

The principles of fundamental justice that become applicable include the right to a fair hearing. The right to a fair hearing, in turn, may include the right to state-funded counsel if the parents are unable to afford counsel and the proceedings are sufficiently serious and complex that the assistance of a lawyer would be necessary, considering the capacities of the parents, to ensure that they will receive a fair hearing. See also Winnipeg (Child and Family Services) v.

A. (J.) , 2003 MBCA 154 per Steel J.A. at paras. 33 - 36. [ 4 ] Lamer C.J., writing for the majority in G. (J.) , recognized that there is no requirement that parents always be provided with state-funded legal counsel in child protection proceedings because: [86] … 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. [ 5 ] The decision in G. (J.) dealt with the right to counsel at trial in child protection cases. Such an appointment can also be made at the appellate level, where the same legal principles apply: Newfoundland and Labrador (Director of Child, Youth and Family Services v.

F.(J.) , 2005 NLCA 34 per Wells, C.J.N.L., at para. 9 [ 6 ] In this case, the parents’ application for extension of time is deficient in that it does not address the factors that a Court is required to consider on such an application. In particular, and most importantly, it does not address whether there is any arguable merit in the appeal. The application simply says that the parents want the Court to grant continuous custody of the children to them.

No record of the trial proceeding has been prepared and there is no basis in the application or the existing inadequate records for this Court to make a determination as to whether there might be some issue that would be worthy of consideration by way of appeal. I am satisfied that the parents are not capable, without assistance of counsel, of properly reviewing the proceedings below with a view to identifying specific legal issues that might qualify as arguable grounds of appeal. [ 7 ] The case is obviously serious for these parents.

A continuous custody order has been made and they will effectively lose the right to parent their children unless the order is varied on appeal. That said, it is not possible to make an overall assessment of the complexity of the proceedings or the appealable issues involved, if any, at this point. It would therefore be premature to make an order for appointment of counsel to represent the parents fully on an appeal that at the moment may not even clear the hurdle of obtaining an extension of time for filing a notice of appeal.

Even if an extension were ultimately granted, further information about the case would need to be known, especially the nature of the legal issues that would be engaged, before determining whether the matter was complex enough to warrant legal representation all the way to the conclusion of the appeal. [ 8 ] I concluded, therefore, that the most appropriate thing to do at this point would be to make an order for legal representation to assist the parents in preparing and presenting a proper application for extension of time together with related matters up to the filing of a notice of appeal, if the extension were to be granted, but reserving the appointment of counsel for the appeal itself to another day. [ 9 ] I was satisfied that the parents were unable to afford to pay legal counsel.

They had the assistance of legal aid counsel at the trial but their application for counsel on the appeal was rejected. It is tempting to infer that the reason for the Legal Aid Commission’s refusal to carry the case to appeal is because they did not consider that it had any merit. Even if that were so, this Court cannot be bound by the Legal Aid Commission’s determination of arguable merit; the Court must make its own determination of this issue, on a proper record, when considering whether an extension of time for appealing should be granted.

At present, there is nothing before the Court on which such a determination could be made. [ 10 ] The test for appointment of counsel – at least on the limited basis I have described – has been met.

Considering the limited capacities of the parents, the seriousness of the matter to them and the complexity of the issues, concerning the relationship of the question of arguable merit to the extension application, the assistance of counsel is necessary in order for the parents to have a fair hearing of the application for extension of time; to be able properly to prepare and file a notice of appeal if the extension were to be granted; and to apply for continuation of the assistance of counsel on the appeal itself, if that is indicated, once more is known about the scope of the appeal.

[ 11 ] L.T. assured me that the interests of S.H., who was not able to be present at the last scheduled appearance in court, are the same. In light of the fact that there does not appear to be any conflict of interest between them, it is not necessary to consider whether separate counsel ought to be appointed for each of them.

Joint representation should be sufficient. [ 12 ] Counsel for the Attorney General appeared and, very fairly, indicated that the Attorney General would not oppose an order appointing counsel on the application for an extension provided the legal fees payable to the counsel so appointed were consistent with those payable by the government generally when outside counsel are engaged. In my view that was a very reasonable position to take in the circumstances of this case. Disposition [ 13 ] Accordingly, I ordered that: 1.

The intended appellants may, within 15 days of the filing of this Order, designate to the Registrar the name of a member of the Bar who is willing to act on their behalf to provide the following legal services to them: (

a) to advise them with respect to the issues at stake in respect of, and the merits of, their application for extension of time to file a notice of appeal; (

b) on instruction, to prepare and file an amended application for extension; (

c) to act as counsel for them in respect of such an application; (

d) if the application for extension is granted, to prepare and file a notice of appeal and, on instruction, to prepare and file an application for the appointment of counsel to argue the appeal on their behalf; (

e) to act as counsel for them in respect of such application for appointment of counsel on the appeal. 2. In the event that the intended appellants do not designate to the Registrar within fifteen days the name of counsel willing to act, the Registrar shall thereafter, with the consent of the intended appellants, nominate a member of the Bar, knowledgeable and experienced in child protection proceedings, to act as counsel for them; 3. The fees and expenses of the counsel so designated or nominated shall be as agreed between the counsel and the Attorney General and, failing agreement, shall be as taxed by the Registrar on the basis of the standard fee

schedule for outside counsel retained by the Government of Newfoundland and Labrador. J. D. Green, C.J.N.L.