2012 NLCA 73, 2012 NLCA 73

Date: 20121203 Docket: 12/21 Citation: D.K. v. Newfoundland and Labrador (Child, Youth and Family Services) , 2012 NLCA 7 3 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : D.K. APPELLANT AND : MANAGER OF CHILD, YOUTH AND FAMILY SERVICES, ZONE 1 RESPONDENT/APPLICANT Coram: Welsh, Harrington and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division 201004F0292 Appeal Heard: September 27, 2012 Judgment Rendered: December 3, 2012 Reasons for Judgment by Hoegg J. A. Concurred in by Welsh and Harrington JJ.A.

The Appellant appearing on her own behalf Counsel for the Respondent: Brian Furey Q.C. Hoegg J.A.: Introduction [ 1 ] The Manager of Child, Youth and Family Services (“the Manager”) applies to strike or dismiss D.K.’s appeal of a Family Division order granting continuous custody of her three children to the Manager. The matter engages the application of rule 57.17 of the Rules of the Supreme Court, 1986 , that sets out the grounds on which such an application can succeed.

History and Context [ 2 ] On December 1, 2010, the Manager filed an application with the Supreme Court of Newfoundland and Labrador, Trial Division (Family Division) seeking a continuous custody order with respect to D.K.’s three children.

[ 3 ] On January 20, 2012, following a seven-day hearing, a Family Division judge granted the Manager’s application.

The order for continuous custody was filed with the Court on February 29, 2012. [ 4 ] On March 22, 2012, D.K. filed a notice of appeal which stated “seeking custody of my 3 children …” as the sole ground of appeal. [ 5 ] On June 5, 2012, the Manager filed an interlocutory application asking the Court to grant an order striking out D.K.’s notice of appeal for failure to comply with the provisions of Rule 57, or on the basis that 1) she has unduly delayed the preparation and perfection of her appeal, or 2) that her appeal is frivolous and without merit.

The matter was set to be heard on June 19, 2012. [ 6 ] On June 19, 2012, Legal Aid counsel appeared as a friend of the court. He advised that D.K.’s application for Legal Aid representation on her appeal had been denied and that she had appealed the denial to the Legal Aid Appeals Board, but the result of the appeal was not yet known. The Chief Justice set the matter over to July 31, 2012 in anticipation that the result of D.K.’s appeal would be known by then.

He also ordered the Manager to prepare the trial transcript and provide copies to D.K. and the Court. [ 7 ] On July 31, 2012, the parties appeared before me, but the result of D.K.’s appeal to the Legal Aid Appeals Board was still not known, so I set the matter over to September 11, 2012. Counsel for the Manager advised that the transcript had been filed with the Court and that a copy had been sent to D.K.

I advised D.K. that she should be prepared to respond to the Manager’s application on September 11, 2012. [ 8 ] On August 1, 2012, counsel for the Manager was informed that the Legal Aid Appeals Board had rejected D.K.’s request for counsel, and that D.K. had been so informed. [ 9 ] On September 11, 2012, the Court was closed due to a storm so the Manager’s application was rescheduled for September 21, 2012. [ 10 ] When the parties appeared on September 21, 2012, D.K. acknowledged that she had received the transcript of the continuous custody hearing in early August, and that she had been notified around the same time that her appeal to the Legal Aid Appeals Board had been denied.

She advised the Court that she had made some inquiries about obtaining legal representation for her appeal but had not yet been successful. The Court granted D.K. until September 27, 2012 to follow up on her inquiries. Counsel for the Manager voiced concern about the delays since her application had been filed and requested that it be heard on September 27, 2012. [ 11 ] On September 27, 2012, D.K. was unable to inform the Court of any steps she had taken to secure counsel. She told the Court that she could not afford a lawyer, and advised that she would not be having legal representation on her appeal.

The Court permitted the Manager to amend her application to include dismissal of D.K.’s appeal as an alternative to striking it out, and proceeded to hear the Manager’s application. The Rule Rule 57.17 states: 57.17.

(1) Any party to an appeal may apply to the Court in accordance with rule 57.30 at any time before or at the hearing of the appeal for an order (

a) striking out the notice of appeal; or (

b) dismissing the appeal on the grounds that: (

c) no appeal lies to the Court, (

d) the appeal is frivolous, vexatious or without merit, (

e) the appellant has unduly delayed the preparation and perfection of the appeal, or (

f) the appellant has failed to apply to have the appeal set down for hearing.

(2) The application shall state the reasons therefore and shall be supported by an affidavit setting forth any relevant facts not set forth in the order appealed from. The Case Law [ 12 ] In Walsh v. Johnson , 2010 NLCA 6 , Green C.J.N.L. observed that “although the grounds for either dismissing an appeal or striking out a notice of appeal are the same, the manner of dealing with such applications is somewhat different.” [ 13 ] The test for striking out a notice of appeal is whether it is plain and obvious that the grounds of appeal cannot succeed.

Such a determination involves “consideration of whether the appeal is without justification at law, whether it is only for the purpose of annoying or embarrassing the opposing party, or whether there is an arguable ground”, as discussed by Cameron J.A. in Harnum and Harnum v. Green , 2007 NLCA 31 .

This “formalistic” review involves some consideration of whether there is merit to an appeal, but not an assessment of its likelihood of success (paragraph 11). [ 14 ] If a notice of appeal does not disclose an arguable basis for interfering with the trial judge’s decision or an appellant is unable to demonstrate potential support for the ground or grounds of appeal as stated in the notice, the Court may determine that the appeal “plainly and obviously” cannot succeed and striking out will follow unless the appellant can put forward a basis for an extension of time

and permission to amend the impugned notice ( Walsh , paragraphs 12-13 ). Such an application would engage consideration of the factors set out in Law Society of Newfoundland v. Fahey , 2000 NFCA 19 , which considered when an application for an extension of time to file an appeal should succeed. [ 15 ] At paragraph 16 of Walsh, the Chief Justice explained that dismissal of an appeal on a rule 57.17 application requires a more intensive analysis of merits than that required for striking out a notice of appeal, because a dismissal is regarded as an adjudication of the merits which has more serious consequences.

Once an appeal is dismissed, a respondent cannot be granted an extension of time to file another notice of appeal nor can the appeal be reinstated on a subsequent application. [ 16 ] In conducting a rule 57.17(2)(

d) merits evaluation, a court may review a judge’s reasons for decision and the record so as to ascertain whether the appeal has any arguable merit. Delaying the inevitable by keeping alive an unmeritorious appeal would be vexatious to the respondent ( Walsh , paragraph 21 ) and not in the best interests of children who are affected by the appeal (See L.T. v. Director of Child, Youth and Family Services (No. 2) , 2011 NLCA 11 , paragraphs 9-24 .) Analysis [ 17 ] D.K.’s notice of appeal states only that she is “seeking custody of my 3 children …”.

It does not allege that the Family Division judge erred in granting continuous custody of her children to the Manager, nor does it state any other arguable basis on which this Court could interfere with the judge’s decision. At the hearing on September 27, 2012, D.K. was unable to point to any basis on which this Court could interfere with the judge’s decision.

Her comments to the Court indicate that she is not intending to advance a new ground of appeal or argument, or to use the transcript to illustrate support for what might be considered an arguable ground of appeal, or to file an appeal book or factum or bring her appeal on for hearing anytime soon. [ 18 ] D.K.’s reference to the transcript was limited to her comments that some of the recorded evidence is “lies” which she told the Manager because she believed the lies were what the Manager wanted to hear.

D.K. expressed her disagreement with the decision of the judge and her desire to have another opportunity to argue her case in the hope of achieving a different result. In short, D.K.’s stated ground of appeal is a simple statement which does not engage a justiciable issue or the correctness of the decision under appeal. [ 19 ] The record shows that D.K. is cognitively challenged. As well, she is unrepresented in this Court, and drafted her notice of appeal without the assistance of counsel ( Walsh , paragraph 26 ).

While D.K.’s notice of appeal and her submissions do not disclose an arguable ground of appeal, it is appropriate for the court, in these particular circumstances, to do a “more intensive analysis” of the merits of D.K.’s appeal ( Walsh , paragraph 16 ). The Family Division Judge’s Decision [ 20 ] The transcript of the judge’s decision, rendered a day after the trial’s conclusion, shows that he appreciated the child protection legislation and legal principles relevant to the case, and that he was aware of the heavy onus on the Manager to establish that a continuous custody order was warranted.

The judge reviewed the evidence, which included the history of Child, Youth and Family Services’ involvement with D.K’s family since the birth of her eldest child and numerous incidents when the health and welfare of some or all of the children were in jeopardy. He then considered this evidence in determining whether the children were in need of protective intervention and what type of remedial order should be granted.

The judge gave several reasons for his decision, among which were that D.K. frequently left her children unsupervised, was unable to control them and that she was both unable and unwilling to address their significant medical and behavioural needs. He found that D.K.’s defiance and mistrust of the Manager and her propensity to “play fast and loose with the truth” contributed to her inability to safely parent her children and did not bode well for her stated willingness to change.

He also noted that she had missed, without convincing excuse or explanation, approximately two-thirds of the scheduled visits with her children in the months preceding the hearing. The judge observed that none of the Manager’s evidence was significantly challenged by D.K. and also that D.K.’s position that the children be returned to her subject to a supervision order was an acknowledgement by her that they were in need of protection. He concluded that sending the children home to their mother would be “disastrous” for them.

The Record [ 21 ] I have reviewed the transcript of the continuous custody hearing, and am satisfied that there is no apparent flaw in the judge’s appreciation of the evidence or in his reasoning.

Three social workers, a family support worker, and a clinical supervisor testified, each from her own perspective and area of expertise and responsibility, to the myriad efforts made by the Manager over the years in the form of parenting support, respite, repeated instructional and parenting courses for D.K., and protective interventions for the children when complaints were received or when they were unwell or experiencing particular difficulties, and that these efforts met with minimal success.

These witnesses were at a loss as to what other support services could be offered to D.K. to enable her children to have their needs met while living with her. A doctor of psychology who conducted testing on D.K. confirmed that D.K. was cognitively challenged and that her behaviour was unlikely to change. As well, the evidence demonstrates that the health and behaviour of all three children have improved since they have been in foster care. Nothing in the evidence of D.K. and her friend M.H., or in the argument D.K. presented in this Court, cast doubt on the essence of the Manager’s evidence.

The fathers of D.K.’s children, whose identities D.K. has refused to disclose, and the male partners she has lived with since her children were born (including her current partner), were conspicuously absent potential witnesses. [ 22 ] The Family Division judge specifically noted that D.K. loves her children, and I do not disagree. Unfortunately, however, D.K.’s love for her children does not translate into her ability to parent them in a safe and stable environment that meets their basic needs. [ 23 ] In the result, I conclude that there is no merit to D.K.’s appeal.

The appropriate remedy is to grant the Manager’s application pursuant to paragraph (

b) of rule 57.17(1). Accordingly, D.K.’s appeal is dismissed. The order granting continuous custody of D.K.’s three children to the Manager stands. [ 24 ] There is no order as to costs.

L. R. Hoegg J.A. I concur: B. G. Welsh J.A. I concur: M. F. Harrington J.A.