2011 NLCA 76, 2011 NLCA 76

Date: 20111122 Docket: 11/83 Citation: M.W. v. Director of Child, Youth and Family Services , 2011 NLCA 76 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : M.W. APPLICANT AND : DIRECTOR OF CHILD, YOUTH AND FAMILY SERVICES RESPONDENT Coram: Hoegg, J.A.

Application Heard: November 22, 2011 Decision Rendered: November 22, 2011 (Orally) Memorandum of Disposition Filed: November 30, 2011 The Applicant, appearing on her own behalf Counsel for the Respondent: Jackie Pelletier MEMORANDUM OF DISPOSITION Hoegg, J.A.: [ 1 ] M.W. has applied for an extension of time to appeal a decision made on June 29, 2009 by a judge of the Unified Family Court. The decision placed her two sons in the continuous custody of the Director of Child, Youth and Family Services. An order was issued on the same date. The appeal period expired 30 days later.

On November 4, 2011, approximately two years and four months later, M.W. applied to this Court for an extension of time to file an appeal of the Unified Family Court judge’s decision. The Unified Family Court Decision [ 2 ] After a protective intervention hearing under section 34(1) of the Child, Youth and Family Services Act , S.N.L. 1998, c. C- 12.1, the Unified Family Court judge found that M.W.’s children were in need of protective intervention under sections 14(

a) and (

c) of the Act (physical harm and emotional harm). The judge determined, on the evidence, that continuous custody was in their best interests. The judge also ordered that M.W. have access to them as long as the Director determined it to be in their best interests and that they were to remain together in the custody of the Director with any change in their living arrangement to be subject to approval by their psychiatrist, Dr. Weldon Bonnell.

Background [ 3 ] This matter has a protracted history. Proceedings involving the boys began on September 28, 2001, when the Director applied for a Warrant to Remove them. An interim order placing the children in the Director’s custody was made on October 9, 2001, and a without-prejudice consent order was issued on October 16, 2001 and followed by a four-month temporary custody order on October 30, 2001. The four-month order was rescinded on February 4, 2002. [ 4 ] After a five-year interval, the Director applied for another Warrant to Remove the children on March 29, 2007.

A four-month temporary custody order was issued with M.W.’s consent on April 10, 2007. [ 5 ] The Director applied for a second temporary order on August 6, 2007. On August 21, 2007, the proceedings were adjourned for three months to allow for a parenting capacity assessment. [ 6 ] On November 21, 2007, the Director applied for continuous custody, relying on the parenting assessment. Although M.W. had previously consented to temporary custody, she was not prepared to consent to continuous custody.

The court ordered that the children remain in the care of the Director until a protective intervention hearing could be held. A further order that the children remain in the care of the Director was issued on January 16, 2008. Hearing of the Director’s continuous custody application began in March 2009 and a decision was rendered on June 29, 2009.

Recent History [ 7 ] M.W. and counsel for Child, Youth and Family Services were advised prior to this hearing that the Court would be requesting a current report on the childrens’ situation including the status of M.W.’s access to them. [ 8 ] Counsel advised the Court that M.W.’s supervised access continued from the date of the continuous custody order until December, 2009, when problems developed. It was then scaled back, and in the spring of 2010, Dr. Bonnell recommended that M.W.’s access to her children be terminated due to increasing concerns about their behaviour.

M.W.’s access was reduced, and by the end of May, 2010, it was limited to short supervised access at Christmas, Easter and on birthdays. [ 9 ] Meanwhile, on May 10, 2010, M.W., with legal aid representation, filed an application at Unified Family Court seeking increased access. This application was adjourned from time to time in the months following in order to accommodate an assessment of M.W.’s mental health. After the assessment, her legal aid counsel certificate was cancelled, and her application was adjourned sine die.

The application is now being brought forward for case management at Unified Family Court on December 1, 2011. [ 10 ] Child, Youth and Family Services’ counsel also reports that the children are now in high school, exhibiting normal behaviours, participating in normal activities, and doing well in their living situation. [ 11 ] M.W. did not dispute any of the information counsel provided to the Court. However, she continues to want increased access to her children and expresses the desire to have custody of them so they “can move to Ottawa away from Child, Youth and Family Services”.

She says she is committed to do whatever she can do to achieve these objectives. The Law Concerning Extension of time to File an Appeal [ 12 ] Rule 57.05 of the Rules of the Supreme Court, 1986 provides that a party can apply for an extension of time to file a notice of appeal where “in the opinion of the Court, refusal to do so would create an injustice”. The factors for consideration of such an application were set out by Cameron J.A. at paragraph 3 of Law Society of Newfoundland v.

Fahey , 2000 NFCA 19, 95 A.C.W.S. (3d) 1011 : [3] … The factors considered in applications to extend the time for filing a notice of appeal include: 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 rule; 3 the potential merits of the appeal; and 4 the presence of any exceptional or special circumstances justifying or working against the fairness of an extension. [ 13 ] These four factors are not stand-alone requirements which, if one or more are met, entitle an applicant to an extension.

Rather, they are factors to be weighed and balanced against each other in consideration of the ultimate question. Analysis [ 14 ] After assessing M.W.’s application in relation to each of the four factors, I concluded, for the reasons that follow, that this Court should not extend the time period for her to file an appeal of the Unified Family Court’s continuous custody order. Bona Fide Intention to Appeal [ 15 ] There is no indication in M.W.’s application that she had intended at any time prior to this application to appeal the Unified Family Court judge’s decision ordering continuous custody.

Neither did she assert at this hearing that she had an intention to appeal after the order was made. M.W. advised the Court that it was only when problems arose respecting her access to the boys in December, 2009 – some five or six months after the order was made – that she sought legal advice regarding her options. Even at this time M.W. did not consider an appeal. Instead, she chose to apply to the Unified Family Court to increase her access to her children, filing her application on May 10, 2010.

It was only very recently that she considered an appeal to this Court, having learned that such action could possibly help her in her quest to see more of her children.

Reasonable Excuse for Failure to Comply with the Rule [ 16 ] M.W. does not offer any excuse for her failure to file an appeal with the time requirements of Rule 57.02. She did say that she did not recall being advised of a 30-day appeal period and that, if she had been so advised, she would not have digested the information because of shock and upset following the continuous custody decision. She also suggested that her self-represented status accounts for her ignorance of legal options.

While M.W.’s submission in this regard may be sincere, the fact is that she was represented by counsel until November, 2010 and, until very recently, chose to pursue increased access, rather than an appeal. Potential Merits of Appeal [ 17 ] In assessing the potential merits of an appeal, this Court is usually called upon to assess the merit of the potential grounds of appeal. These potential grounds of appeal usually allege error made in the court below.

M.W. has not asserted, in her lengthy application or in her oral submission, any error made by the Unified Family Court judge in granting the Director’s application for continuous custody. She advances no basis on which this Court could conclude that the Unified Family Court judge erred in principle, misapprehended the evidence or otherwise erred in ordering the children into the continuous custody of the Director. Neither is it apparent from the record that the Unified Family Court judge erred in any respect. [ 18 ] It is helpful to appreciate the nature of M.W.’s 123-page application.

It contains fifteen pages of notes referencing what appear to be professional disciplinary cases involving lawyers outside of this jurisdiction. None of these referenced cases has even a tenuous argument helpful to her appeal. M.W.’s application also contains eight pages of notes referencing her requests to various individuals and agencies, including the Governor General, the UN Commissioner of Human Rights and the Bloc Québécois, to help her with her cause. The balance of her application relates to her own grievances with Child, Youth and Family Services, and complaints of how that agency has persecuted her.

One has to strain to interpret any of the content of M.W.’s application as relating to the welfare of her children; any reference to their best interests is, at most, peripheral. Extraordinary or Special Circumstances [ 19 ] M.W. did not advance any argument concerning special circumstances which might warrant granting her an extension of time to file an appeal, and no special circumstances were apparent to the Court. To the contrary, the circumstances of this case weigh against granting her application. The situation of M.W.’s children is akin to the situation in J.F. v.

T.P.S. , 2011 NLCA 70 ( “J.F.” ) which considered whether to reinstate a child custody appeal which had been deemed abandoned. In J.F. , Green C.J.N.L. observed that procedural fairness to and between the parties was a theme in this Court’s jurisprudence relating to reinstatement issues, and that in child custody cases, prejudice, normally considered from the perspective of the parties, must be expanded to include children affected (paragraphs 12 and 13). The Chief Justice then said at paragraph 15: …. Cases involving child custody or child protection merit special attention in the court system.

By their very nature family relationships are dynamic. Life does not grind to a halt just because an appeal is filed in the Court. An appeal that takes an inordinate amount of time to process, no matter how it ultimately turns out, may not be in accord with the reality of the current situation, which may have taken a different turn since the trial. In fact, an appellate decision that no longer reflects the reality on the ground, so to speak, and disrupts newly developed relationships and conditions, may be productive of considerable injustice.

Even where circumstances have not changed significantly since the time of the original decision, existing relationships may have become more solidified and greater bonding may have occurred so that a delayed appeal, if successful, may have a greater impact on disrupting those relationships than otherwise. The longer it takes, therefore, for an appeal in a case involving a child to be heard and decided, the greater is the likelihood that it may no longer be of benefit to the parties or the child involved.

These statements apply equally to this application. [ 20 ] As indicated above, M.W.’s children are currently in a stable situation. Interruption to their current circumstances as a result of change in their custody and/or their mother’s access to them must surely only result from a contemporaneous evaluation of their situation. Unless there is good reason, they are entitled to no less.

They should not be subjected to the uncertainty and potential instability associated with an appeal of a decision respecting their welfare which was made two-and-one-half years ago and would not be heard and decided for an additional period of time. Accordingly, changes respecting their mother’s access to them and their custody are more appropriately dealt with by a current application (like M.W.’s pending application before the Unified Family Court) or by a rescission hearing. Disposition [ 21 ] In

summary, M.W. had not established that any of the Fahey factors operates in favour of granting her application. Accordingly, it was not necessary to engage in a balancing exercise in consideration of whether she ought to be granted an extension of time to appeal. In the result, the application was dismissed. [ 22 ] There is no order as to costs. ________________________________ L. R. Hoegg, J.A.