J.F. APPLICANT AND: DIRECTOR OF CHILD, YOUTH v. FAMILY SERVICES, MANAGER OF, 2013 NLCA 27

Date: 201304 24 Docket: 12/92 Citation: J.F. v. Newfoundland and Labrador (Child, Youth and Family Services), 2013 NLCA 27 PUBLICATION BAN: There is a publication ban on the names and any other identifying information of the child referred to herein, as well as the names of her biological parents, relatives and foster families, pursuant to s. 52 of the Children and Youth Care and Protection Act , SNL 2010, C. C-12.1 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: J.F.

APPLICANT AND: DIRECTOR OF CHILD, YOUTH AND FAMILY SERVICES, MANAGER OF CHILD YOUTH AND FAMILY SERVICES EASTERN REGIONAL INTEGRATED HEALTH AUTHORITY RESPONDENT Coram: Green C.J.N.L. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (F) 201102F0969 Application Heard: March 20, 2013 Oral Judgment Rendered: March 20, 2013 Reasons for Judgment Filed: April 24, 2013 Reasons for Decision by Green C.J.N.L. Counsel for the Applicant: Self Represented Counsel for the Respondent: Annette Duffy Counsel for the Attorney General

of Newfoundland and Labrador: Philip Osborne Green C.J.N.L.: [1] In this appeal from a Family Division judge granting a continuous custody order of S.F. to the Manager of Child, Youth andFamily Services (Manager) and denying the appellant’s claim to custody of the child, the appellant (J.F.), the grandmother of S.F.,requested the Court to appoint counsel for her in accordance with the principles enunciated in New Brunswick (Minister of Health andCommunity Services) v.

G.(J.), (SCC), [1999] 3 S.C.R. 46. [2] After hearing from J.F., the Attorney General and counsel for the Manager, I declined to make the order requested. Whatfollows are my reasons for that decision. Background [3] J.F. has a considerable history of interaction with the child protection authorities. All six of her children have been placed incare as a result of various apprehensions and court proceedings that have occurred since 2001. There have been at least three trialsinvolving the Director’s claims to continuous custody of those children.

In each case, J.F was unsuccessful in resisting the imposition ofchild protection orders and appeals from those orders to this Court were also dismissed. [4] In one appeal to this Court, where J.F. was also unrepresented, the Court made an order, applying the G.(J.) principles, thatJ.F. be provided with state-funded counsel to assist her in the presentation of her appeal against a continuous custody order relating toone of her own children: Director of Child, Youth and Family Services Health and Community Services Board (St. John’

s) v. J.F. et al,2005 NLCA 34, 247 Nfld. & P.E.I.R. 354 (“Director of CYFS v. J.F. (2005)”). The Court concluded that although J.F. appeared to be“intelligent and articulate, with the capacity to present her point of view” (paragraph 13), the seriousness of the issues at stake and thecomplexity of the legal issues (involving “the

interpretation of some complex statutory requirements and the application of somecomplex principles” (paragraph 12) including the principles respecting the reception of fresh evidence) required the appointment ofcounsel for “a full and fair presentation of her position on appeal that a fair hearing requires” (paragraph 13). [5] Because J.F. was not represented on her application for counsel and had difficulty putting her points respecting the potentialmerits of her appeal in jurisprudential terms, it is necessary to set out, in greater detail than would normally be necessary, some of thedetails of the trial, gleaned from the transcript, which the Court had ordered to be prepared for the purposes of the current application.

The Trial Subject to the Current Appeal [6] One of J.F.’s children (L.F.) gave birth to a daughter (S.F.). L.F., who was unsure of the identity of the father, had no fixedaddress. She expressed little or no interest in parenting the child. The child was apprehended by the Manager, by means of telewarrant,on the day of her birth and a protective intervention hearing in the Family Division ultimately ensued pursuant to the provisions of theChildren and Youth Care and Protection Act, SNL 2010, c. C-12.2 (“CYCPA”). [7] The Manager’s application for continuous custody was not opposed by L.F.

However, J.F., as grandmother of the child,applied for custody (or in the alternative, access) under the Children’s Law Act, RSNL 1990, c. C-13 (“CLA”). This application washeard at the same time as the protective intervention hearing. The only point of view in opposition to the Manager’s was therefore thatpresented by J.F. She acted without counsel. [8] The trial was relatively short. The protective intervention application was not opposed. The real issue at the trial was whetherJ.F.’s claim to custody or access under the CLA should be granted.

It was opposed by the Manager. [9] The procedure adopted was for the Manager to lead evidence, through a social worker, to justify a protective interventiondeclaration, then for J.F. to lead evidence with respect to her custody/access application, with the Manager presenting reply evidence,through her social worker, in opposition to that application. [10] The evidence presented by J.F. in support of her CLA application consisted of evidence from a psychologist (Hillier) who hadtestified at previous protective intervention hearings involving J.F.’s children, as well as evidence from herself. [11] The psychologist presented the results of recently-conducted personality testing of J.F. which in his opinion did not disclose anyclinical psychopathologies and showed that her clinical profile was entirely within normal limits.

J.F. also attempted to lead evidencefrom him that, in her view, disclosed weaknesses in the negative conclusions reached about her by a psychiatrist (Dr. Craig) at previousprotective intervention hearings involving J.F.’s children. Dr. Craig’s reports were not put in evidence at the current trial; however, someof his findings and conclusions were referred to and relied on by the courts in previous judgments which were referred to in the course ofthe trial. Counsel for the Manager objected to this line of questioning.

The trial judge agreed and limited J.F.’s questioning to whatHillier relied on to prepare his own report. She stated: I don’t want to go too far down the road of critiquing another psychiatrist’s report when that is not, in fact, in evidence before us in thisproceeding and [Dr.] Craig is not being called to give evidence here today in his report. (Transcript, September 17, p. 40) [12] When J. F. questioned the appropriateness of this ruling, in light of Dr.

Craig’s negative findings against her, the followingexchange occurred: The Court: Yes, and it was in evidence in those proceedings involving your own children. It’s not in evidence in this proceeding. J.F.: No, not this one, but I’m saying the decisions are being admitted into this court, I was just served last week withdecisions, and in those decisions is – a large percentage of the reason why the decisions were made the way they were made were based

on that one-third of a part of a diagnosis [which J.F. was submitting made Dr. Craig’s diagnosis incomplete] (Transcript, September 17, pp. 40-41) [ 13 ] Counsel for the Manager then indicated that she was in fact going to be relying on the findings made in previous cases involving J.F. and on some of the evidence tendered in those cases (including Dr.

Craig’s, which was accepted by those courts and formed the basis of the findings). [ 14 ] The judge responded by saying: … I’m allowed under our Act to rely upon those prior decisions, and to the extent that findings were made based on evidence, I’m certainly prepared to accept those findings and rely on those findings….

I do have the court’s findings that were based upon that report, and to the extent that that is relevant, and there is a previous court finding, then I can rely on that finding… (Transcript, September 17, p. 43) J.F. interrupted the judge at that point, stating: If you are going to rely on the information in those decisions, not just the findings, but the information, the basis of those decisions, should I not be – in the best interest of my granddaughter, [S.F.], and be able to bring up – if they are going to bring it up, can I bring it up – I mean, some of the cases was like – 80 percent of the decision was [Dr.] Craig or whatever it was, … but it was such a large percentage of the decision was based on Dr.

Craig’s one-third of an assessment, that if they’re going to bring it up – (Transcript, September 17, p. 44) The judge then ruled: … it’s up to the judge to consider what may be relevant from a prior proceeding. I can tell you I don’t have Dr. Craig’s report in front of me today, I don’t have the complete report, but I am prepared to rely on the findings of the trial judge in previous decisions, and I’m entitled to do that, and I’m [wary] about having Mr.

Hillier comment on a report that [is] not before him and is not before this court. (Transcript, September 17, p. 45) [ 15 ] In cross-examination of Hillier by counsel for the Manager, he was asked whether in making his findings in previous cases involving J.F. he acknowledged not knowing that J.F. had had a couple of admissions to the Waterford Hospital and that he probably would have done more testing if he had known that.

When J.F. came back to this issue in re-examination, trying to blunt the negative inference that she had been committed to the hospital for mental illness, by suggesting that in fact that she had been sent to the Waterford for an assessment as to ability to stand trial in connection with certain criminal charges she was facing, she was prevented by the judge, on objection by counsel for the Manager as to relevancy, from asking whether it had ever been suggested to him that the admissions were as a result of mental illness and whether, in fact, she had told him about the true basis for her admissions. [ 16 ] The Manager recalled the social worker familiar with the file to testify in reply to J.F’s evidence on the CLA application.

She testified that the Manager did not support J.F. having either custody of or access to the child. This was based on that fact that “[J.F.] has an extensive child protection history regarding her six children, none of who are in [J.F.’s] custody” (Transcript, p. 90). She also referred to Dr. Craig’s previous assessments: I mean, as Dr.

Craig had discussed, even with intensive therapy, he saw that the mother’s prognosis – [J.F.’s] prognosis would be very poor. [ 17 ] Counsel for the Manager also led evidence from the social worker that since her granddaughter had been born, J.F. had not been calling for reports on the child or to inquire how the child was doing. J.F. asked to play a voice recording of a conversation with the social worker which she said would contradict her testimony.

When questioned as to its relevancy, she did not pursue this request but commenced to question the witness as to the circumstances surrounding her previous requests for contact with one of her sons. Counsel for the Manager objected on the basis that it was not relevant (Transcript, September 18, p. 11) and that issues involving her son were “over and done with”. (Transcript, September 18, p. 15). The trial judge agreed: I … question the relevance of this type of evidence. We’re dealing here with a custody and access application for [S.F.].

We’re not re- litigating the matters that were litigated previously regarding your other children. (Transcript, September 18, p. 13) … this is not what is before the court today.

And I don’t want to go too far down the road of letting you lead evidence concerning your other children and concerning a matter that’s already been dismissed by the Court of Appeal . (Transcript, September 18, p. 17) [ 18 ] J.F. responded by asserting, in effect, that exploration of issues respecting the reasons for difficulties with respect to access to her other children was relevant because she had to be able to defend herself against accusations of her inability to parent: Yes, I don’t want to be bringing up evidence with regards to the children, it’s just yes, I guess you would say, you know, consistency, credibility where, you know, things are being said in regards to myself, about myself and to defend myself, so to speak and present evidence – [ 19 ] The judge rejected that argument and reiterated that while the court could consider and rely on previous judicial findings respecting J.F.’s parenting abilities, J.F. could not nevertheless go into or question those matters that had already been decided, at the

current trial: I’m only supposed to be admitting matters into evidence that pertain to the application that’s before me dealing with [S.F.]. I can rely upon previous judicial findings and accept certain findings of fact, but I can’t re-litigate matters that were already decided upon by this court and by the Court of Appeal.

So, I really cannot introduce evidence that relates to your previous children and relates to issues that you have arising out of those previous judicial proceedings. (Transcript, September 18, p. 18) The Trial Decision [ 20 ] The trial judge ultimately dismissed J.F.’s application for custody or access and made the continuous custody order requested by the Manager: Newfoundland and Labrador (Manager of Child, Youth and Family Services) v.

L.F. , 2012 NLTD(F) 35. [ 21 ] In reaching her conclusion that J.F.’s application for custody or access should be denied, the trial judge made a number of references to, and relied on, the findings and evidence presented in the previous decisions involving J.F. and her children (paragraphs 34- 41; 67-73; 80-85). [ 22 ] As noted previously in the description of the trial proceedings, the trial judge asserted the appropriateness of relying on previous judicial findings and accepting their findings of fact for the purpose of the current proceeding. She reiterated this position in her judgment, as follows: [39]

Section 48 of the CYCP Act allows the Court to hold hearings informally and to consider relevant reports, including exhibits filed and findings in an earlier civil proceedings, as well as evidence taken and a declaration made at a prior proceeding under the CYCP Act or a similar statute . (Emphasis added.) [ 23 ] The reference to

section 48 of the CYCPA is to the following provision: 48.

(2) In a proceeding under this Act, a judge may admit and act upon … (

d) a report the judge considers relevant, including a transcript, exhibit or finding in an earlier civil or criminal proceeding; and (

e) evidence taken and a declaration made at a prior proceeding under this Act or under a similar statute. [ 24 ] Applying that provision and the comments of this Court in Newfoundland and Labrador (Director of Child, Youth and Family Services) v. F.(J.) , 2006 NLCA 35 , 259 Nfld. & P.E.I.R. 296 to the effect that provisions of this type give the judge “wide discretion to accept evidence not tested by the normal strictures of adversarial proceedings” (paragraph 21), the judge concluded that [41] …“it was proper to consider evidence given and exhibits entered in a prior hearing under the CYCP Act . The J.F.

Decisions are prior proceedings under the former Child, Youth and Family Services Act (predecessor to the CYCP Act ) pertaining to the parenting abilities of J.F. (Emphasis added.) [ 25 ] The judge then went on, when considering the ability of J.F. to act as a parent, to rely on parts of the previous decisions. Amongst the comments she made were the following: [67] While it is not necessary to consider or review all evidence from the prior J.F.

Decisions, in all three trial decisions the trial judges came to the conclusion that the children of J.F. would be subjected to emotional and physical risk of harm if the children were in her care. … [69] Findings were made in all three trials that J.F. was not able or willing to protect her children and that she was unable to keep an ongoing focus in regards her children. [70] All three trial judges accepted and relied upon the report of Dr. David Craig, a psychiatrist who testified at the first two trials but did not testify at the third trial … [71] A review of the J.F.

Decisions indicates that, while unable to state so with any certainty due to a lack of information about J.F.’s attitudes and behaviours during childhood and adolescence, Dr. Craig strongly suggested that J.F. met the diagnosis of personality disorder… … [73] The reports of Dr. Craig and Dr. Jeffrey were not entered as Exhibits at trial and were not in the file material pertaining to S.F. However, as I indicated to the parties during the hearing of this matter, to the extent these reports were specifically referred to and accepted by the Court in the J.F.

Decisions, they became findings of the Court in those trials and were considered by me in making this decision. (Emphasis added.)

[ 26 ] The judge also commented on the attempt by J.F. to question the social worker about issues relating to access to her own son: [86] … J.F. focused her questioning of Bethany Woodman on issues surrounding access to her youngest son and alleged actions of the Department, suggesting the Department was responsible for her lack of contact with her son.

Even when advised by this Court that the matter of access to her youngest son was not an issue to be determined in these proceedings, J.F. continued in this line of questioning. … [88] … J.F. appeared to be placing her legal disputes and ongoing distrust of the Department ahead of the interests of her granddaughter. [89] Similarly, the evidence of J.F. at trial is clear that she continues to be unable to focus on the welfare of her children, and now her grandchild.

She remains fixated on blaming the Department for the loss of custody and continuing access to her own children without acknowledging the significant role she played in those decisions. [ 27 ] To summarize, in reaching the conclusions she did, the trial judge’s approach included: 1. a determination that J.F.’s parenting abilities with respect to her own children were relevant to determining the issue of her parenting abilities with respect to her grandchild; 2. reliance on the negative findings in the previous decisions with respect to her ability to parent; 3. a decision not to allow her to attempt to attack or undermine the opinions of Dr.

Craig; 4. a decision not to allow her to cross-examine the social worker who testified on behalf of the Director to challenge her evidence respecting her relationship with her own children; 5. reliance on evidence respecting her relationship with her granddaughter since she was born. The Appeal Issues [ 28 ] In her notice of appeal, J.F. outlined a number of specific errors which she says the trial judge made.

Most of them involve disagreement with factual matters relating to the weighing of factors relevant to the determination of the best interests of S.F. [ 29 ] In addition, however, she takes issue with the decision of the judge respecting the admissibility of certain evidence (specifically, a tape recording which she says contradicts the evidence of the social worker at trial), and also a failure of the judge to refer to expert evidence from a Dr. Jeffrey that had been heard at other trials involving her own children that J.F. says supported her position.

She also takes issue with the degree to which the judge relied on the evidence of Dr.

Craig in other trials for the purpose of deciding the current case, especially in light of his absence of consideration of her “African culture” which, she says, undermines his ability to assess the normality of her behavior. [ 30 ] She further says the judge failed to acknowledge or take account of evidence that she had taken two parenting courses and received two certificates of completion which had been admitted as evidence at one of her former trials. [ 31 ] Finally, at paragraphs 9-11 of her notice of appeal she, more generally, asserts that the trial judge erred in law by admitting re- written decisions at or before the trial; by interfering with her ability to examine and cross-examine witnesses; and by interfering with her ability to testify [ 32 ] J.F. explained further at the hearing that her complaint was that she was not allowed to challenge the evidence that was being presented against her, especially the evidence that the Manager was proposing to rely on from the previous hearings involving her own children and that she was not allowed to reply to the evidence led by the Manager’s social worker as to why she was not regarded as a suitable parent.

As well, she says the judge did not accept or refer to other evidence in the previous decisions which was favourable to her. [ 33 ] J.F. is not legally trained and drafted the notice of appeal herself, albeit with the assistance of a friend. The language chosen to describe her complaints about the trial and the resulting judgment, while in some cases infelicitous, nevertheless conveys specific concerns about the manner in which the trial was conducted and the correctness of the resulting judgment.

It is not a general plea, as appears to be occurring with greater frequency from unrepresented appellants, for a new trial or reversal of judgment without stating any specific reason for doing so. State-Funded Counsel in Child Custody Cases [ 34 ] The power of a Court to order that a parent be represented by a lawyer where state action could result in loss of custody of a child was established by the Supreme Court of Canada in the G.(J.) case.

The Court held that the removal of a child from parental custody constituted a “serious interference with the psychological integrity of the parent” (paragraph 61) that could potentially interfere with the parent’s right to security of the person within

section 7 of the Canadian Charter of Rights and Freedoms . [ 35 ] Accordingly, the state action could only occur in conformity with the principles of fundamental justice, which meant that the parent was entitled to a fair hearing with a meaningful opportunity to present her case. While this did not mean that the parent would be entitled to state-funded counsel in all such cases, the Court concluded that a judge is required to consider in each case whether the parent could receive a fair trial without legal representation. Factors pointing towards the need for state-funded counsel identified in G.(J.) included: (

i) the inability of the parent to afford a lawyer or qualify for legal aid; (ii) the seriousness of the matter; (iii) the complexity of the matter; (iv) the incapacity of the parent to present his or her case effectively without the assistance of a lawyer; and (

v) the potential for the judge to assist within the limits of the judicial role (paragraphs 103-104).

[ 36 ] In opposing the appointment of counsel for J.F. in this case, counsel for the Attorney General made a number of submissions related to the scope of the power of the Court to make such an order. [ 37 ] First, counsel submitted that G.(J.) is limited in its application to protective intervention proceedings and not to child custody disputes between parents or between third parties, like a grandparent, and a parent.

He submitted that the determination of any claim by J.F. to custody of S.F. was made in the context of a custody/access application by her under the CLA and not under the child protection legislation. This differentiates the case, he argued, from the ordinary situation where a parent is resisting a direct application by the state to remove a child from its parent. The result is that

section 7 Charter rights are not engaged because J.F.’s right to life, liberty and security are not being jeopardized by state action in a private parental custody dispute. [ 38 ] Whatever may be the merits of this type of distinction generally, I do not accept its application in the context of the current case. This is not, in any realistic sense, a custody contest between a grandparent and a parent. J.F.’s claim for custody arises out of and in response to the action of the Manager, representing the state, seeking to have S.F. declared in need of protection and taken into custody.

The true protagonists in the fight to have custody of the child were the Manager and J.F. In fact J.F. indicated to the Court that the mother, L.F., who did not participate, was content for J.F. to have custody. Furthermore, both J.F. and the Manager were named as parties in the style of cause in both proceedings in the judgment filed by the trial judge and both matters were essentially consolidated to be heard together. How the matter was originally technically pleaded is not the determining factor.

In these circumstances the two matters were so closely intertwined that I would not be prepared to distinguish this case from G.(J.) on this basis. [ 39 ] Secondly, counsel for the Attorney General argued that the G.(J.) principles are not congruently transferable to the appellate context. The nature of appellate proceedings, he says does not engage

section 7 Charter rights in the same way or to the same degree. At trial, the parent or other family member is facing the prospect of losing the child in a proceeding that involves potentially complex questions of evidence and trial procedure with the forces of the state arrayed against her.

At appeal, by contrast, an adverse ruling has already been made, thus negativing the presumption that the best interests of the child lie with the parent, and the hearing dynamic on appeal is usually not as complex or challenging. [ 40 ] Of course, this Court has already determined, in at least two other cases, that G.(J.) has potential application in the appellate context: Director of CYFS v. J.F. (2005) and T.(L.) & H.(S.) v. Director of Child, Youth and Family Services 2010 NLCA 70 . That issue in not open for debate.

Counsel nevertheless submitted that the test applicable in the appellate context should in any event be different. Relying on D.(L.) v. B.(J.) , 2012 ABQB 643 he submitted that to qualify for counsel on appeal, the applicant must also show that “the appeal is meritorious” (paragraph 23). See also F.(R.A.) v.

Saskatchewan (Department of Community Resources & Employment) , 2003 SKQB 507 at paragraph 7 (“some demonstrated or arguable legal ground to support the appeal; some chance of success”). [ 41 ] While this point was not expressly discussed in S.F. or L.T. , I am nevertheless prepared to accept that it is not unreasonable for the Court to address such a consideration in its analysis. In a sense, the other criteria, especially the seriousness and complexity of the matter, assume that the potential appeal is not unmeritorious and not frivolous.

If the appeal on its face has no merit then it cannot be said to be complex. In reality, it is a hidden or unspoken consideration in any event. Consequently, it is appropriate to take account of potential merit as a factor. I would say, however, the threshold should be a low one.

I would not describe the standard as “whether the appeal is meritorious” but rather whether there is any discernible merit in the appeal in the sense that the appeal does not appear on its face to be frivolous or without any arguable basis. [ 42 ] A third point made by counsel for the Attorney General was that the G.(J.) principles do not apply to a grandparent, as opposed to a custodial parent facing the prospect of losing a child.

Counsel submitted that a grandparent would not normally be the custodian of the child and would not necessarily have the same close relationship with the child that a parent would have. Accordingly, he argued, the prospect of a child being taken into care by the state would not have the same psychological impact on a grandparent so as to trigger an interference with

section 7 Charter rights. [ 43 ] The New Brunswick Court of Appeal has held that non-custodial grandparents were not entitled to state-funded legal counsel because their

section 7 right to security of the person was not engaged: New Brunswick (Minister of Justice and Consumer Affairs) v. J.R. and C.R. , 2010 NBCA 81 . Relying on a previous decision of the same Court dealing with an application for state funding in a child protection case by a child’s aunt ( New Brunswick (Minister of Social Development) v. T.S. , 2009 NBCA 67 , 351 N.B.R. (2d) 162), Larlee J.A. expressed the conclusion of the Court as follows: “…

section 7 of the Charter is not engaged in child protection cases where the applicant for state-funded counsel is the non-custodial relative of the child” (paragraph 21). [ 44 ] In a subsequent case, the New Brunswick Court of Appeal also denied state funding for fathers of two children who did not have custody of the children and had little involvement in their lives: M.(C.) v. New Brunswick (Minister of Justice and Consumer Affairs) , 2012 NBCA 45 , 2012 CarswellNB 721.

Green J.A. explained: [31] My reading of the [ G.(J.) ] decision suggests the remarks of the former Chief Justice [Lamer] were firmly rooted in the notion that an individual’s rights under s. 7 of the Charter are threatened when the state seeks the “removal of a child from parental custody”. The stigmatization referred to in [ G.(J.) ] flows from the parent being “relieved of custody”.

The existence of custody played a central role in the Court’s analysis and subsequent decision… … [36] In my opinion, [the cases] firmly [establish] the presumptive requirement that an individual seeking state-funded counsel to challenge state intervention in child protection cases of this nature must have been exercising custody, care and control of the child at the heart of the application.

To be even clearer, it must have been from that individual’s “custody” that the child was taken into care by the Minister… [ 45 ] The principle emerging from these New Brunswick cases, and inferentially from G.(J.) itself, is that before the protection for security of the person under

section 7 of the Charter is engaged, there should be a form of custodial relationship existing between the child and the person seeking funding; otherwise, it would be difficult, if not impossible in most cases, to be able to argue that there was a degree of stigmatization, distress and interference with the psychological integrity of the person that would engage

section 7.

[ 46 ] I would observe, however, that inasmuch as the touchstone for triggering s. 7 is, in the words of Lamer C.J.C. in G.(J .) at paragraph 61 , “serious interference with the psychological integrity” of the applicant and “the stigma and distress resulting from a loss of parental status”, it remains theoretically possible for a person who does not have physical custody of the child but who is nevertheless involved in parenting the child or is otherwise involved in the child’s life and care to a significant degree to qualify, even if the involvement could not be said to amount, technically, to custody.

In such circumstances, a grandparent or other person who had assumed caregiving responsibilities might also be able to claim that their Charter rights are being breached, for which the remedy of provision of state-funded counsel could, in principle, be available. [ 47 ] This possibility was in fact recognized in the New Brunswick M.(C.) case, where Green J.A. commented: [37] … I accept that there may be exceptional circumstances which could extend entitlement to state-funded counsel under the rubric of s. 7 of the Charter beyond the custodial individual or individuals with whom the child resides.

Such cases would be rare. For example, a parent who sees his or her child on a regular basis, who spends considerable time with the child, who provides aspects of care and control whilst with the child, who perhaps participates in the making of significant decisions with respect to the child’s health and/or education, and whose life is unquestionably interwoven with that of the child, may well qualify… [ 48 ] The fact that J.F. is the grandmother, and not the parent, of S.F. does not therefore, for that reason alone, disqualify her from making this application.

Application of the Principles to the Circumstances of this Case [ 49 ] The G.(J.) principles have potential application to this case. The question, however, is whether an order for appointment of counsel is justified in the particular circumstances facing J.F. (

a) Potential Merit in the Appeal [ 50 ] In principle, if there is no discernible merit in the appeal, there would be no justification for proceeding to consider the matter further. [ 51 ] The reality is that the ability of an unrepresented appellant to demonstrate that the appeal has some discernible merit may be seriously compromised by the lack of legal assistance in the drafting of the notice of appeal and in the presentation of the argument on the application.

As well, the record, at the time of the application, will often be very sparse and the Court will therefore be hampered in conducting its own examination of the record to see if there might be something present that would merit appellate consideration.

That is why in this case a transcript of the trial proceeding was ordered. [ 52 ] It is appropriate in a case such as this for the Court to perform its own review of the record to see if, within the broad umbrella of the nature of the appellant’s general complaint with the trial result, there is anything in the way the trial was conducted or in the judge’s rulings or in the final reasons for disposition that could, on a reasonable analysis, constitute an arguable case for appeal.

The goal is not to mine the record to find something, however fanciful or theoretical, that might support the appellant’s case but, taking a reasonable and sensible view of the record, to determine if any potentially reasonably arguable point that might affect the trial decision is apparent. [ 53 ] Taking this approach to the current case, I have concluded that there are points apparent from the record of the trial which could amount to a reasonable arguable case on appeal, and that, accordingly, for the purposes of this application, it can be said there is discernible merit in the appeal. [ 54 ] It is not necessary to discuss all such potential appellate points.

I will limit myself to a brief description of some of them. [ 55 ] Much of J.F.’s concern about the trial and its result relates to the way in which the trial judge treated the findings of and evidence adduced in the previous cases involving J.F.’s own children. As noted earlier, the judge concluded that “it was proper to consider evidence given and exhibits entered in a prior hearing under the CYCP Act ” because they were prior proceedings under that Act “pertaining to the parenting abilities of J.F.” (paragraph 41; emphasis added).

Having decided that, she nevertheless restricted J.F. from challenging that evidence on the ground that to do so would amount to re-litigating issues in those cases and that therefore she could not “introduce evidence that relates to your previous children.” Yet, in deciding to accept evidence and exhibits from the previous proceedings, the judge was implicitly acknowledging that J.F.’s parenting of her own children was relevant, in the current case, to her ability to parent her grandchild.

If parenting ability vis-à-vis her own children was relevant in the current context, then it is at least arguable that evidence from J.F herself or elicited by J.F. on cross-examination of other witnesses relating to her parenting of her own children would also have to be relevant and should not be excluded. [ 56 ] This issue engages an

interpretation of

section 48 of the CYCPA . The trial judge appears to have given a very expansive construction to the language. It is at least arguable that a more restrictive

interpretation is appropriate. In the first place,

section 48 only applies “in a proceeding under this Act”, i.e. the CYCPA . Does it have any relevance to a proceeding under the CLA ? [ 57 ] Secondly, could it not be argued that the purpose of the

section was to obviate the necessity, when dealing with successive child apprehensions involving the same parent, of having to lead evidence from the file relating to the same family dynamic so that the whole family history is always at play in family protection proceedings involving the children in the same family unit? Would that purpose encompass use of evidence and exhibits in subsequent proceedings that do not involve the same family dynamic, such as, in this case, a grandparent-child situation? [ 58 ] Thirdly,

section 48 says nothing about the reception of other evidence relating to the same issues. The fact that evidence and exhibits may be entered and relied on in subsequent proceedings does not in itself preclude the leading of other relevant evidence to counteract that previous evidence. Here, J.F. attempted to lead other evidence to show that certain facts about her situation involving her own children were not taken into account by the experts who testified in previous proceedings. It is at least arguable that, having admitted material under

section 48, the trial judge was also required, as a matter of trial fairness, to admit other relevant evidence on the

point.

Section 48 does not appear to set up some sort of statutory res judicata principle.

It is at least arguable that, even with respect to the findings in the previous proceedings, the common law doctrine of res judicata (which the trial judge in any event did not rely on) did not apply because the issues and cause of action were not the same. [ 59 ] Finally, with respect to J.F.’s attempt to cross-examine the Manager’s social worker about previous contact J.F. had had with one of her own sons, she was prevented from pursuing this, because the judge questioned the relevance of “this type of evidence”, ruling that they were not “re-litigating the matters that were litigated previously regarding your other children” (Transcript, September 18, p. 13).

Again, if evidence and findings from previous proceedings were admissible in the current proceeding, it is at least arguable that fairness dictated that J.F. be allowed to lead other evidence, elicited through cross-examination of the Manager’s witnesses, that potentially was relevant to the same issue of her parenting ability of her own children. [ 60 ] On a broad reading of the notice of appeal, these matters can be said to be raised as part of the scope of the appeal. They can be said to fall within paragraphs 9, 10 and 11 of the notice of appeal, as quoted earlier. [ 61 ] Of course, this is not to say that

section 48 was improperly applied here. It may well be that when examined closely, the material from previous proceedings that the trial judge relied on will be found to fall squarely within the section, properly interpreted, and that she did not in fact rely on any evidence and exhibits that were not fully accepted and incorporated as part of the actual rulings in those cases. Nevertheless, it cannot be said that the case does not have arguable appeal points. [ 62 ] Further, viewed from a broader perspective, the case arguably engages the important issue as to the general scope and proper operation of

section 48 of the CYCPA . There may be a laudable objective of having such a provision as

section 48 ; however, from the point of view of trial fairness, one has to be careful that the operation of such a provision does not have the inadvertent effect of “stacking the deck” against a parent who is fighting state intervention, simply because in previous cases adverse findings have been made against her, with the result that the parent will effectively have no means of fighting the subsequent case on a level playing field and may be exposed to the court picking and choosing what findings and evidence in the person’s case will be relied on, while at the same time limiting the parent’s ability to rely on other more favourable parts of those decisions. [ 63 ] I conclude, therefore, the J.F. should not be denied counsel on the basis that there is no discernible merit in the appeal. (

b) Is

section 7 of the Charter engaged ? [ 64 ] The question to be addressed here is whether the relationship of J.F. with S.F. is such that the actions of the state in attempting to assume custody, care and control over the child would amount to a serious and profound effect on J.F.’s psychological integrity or a stigmatization of her ability as a parent leading to stress resulting from loss of parental status, such that J.F.’s security of the person under

section 7of the Charte r can be said to be threatened. [ 65 ] I do not doubt J.F.’s sincerity in wanting to step into the void created by the child’s mother’s apparent disinterest in parenting her. Nor do I question her sincerity in wishing the child to be brought up in an environment that will give her an appreciation of her cultural heritage. [ 66 ] J.F. asserted that she worries constantly that S.F. is being properly fed and cared for and that she suffers without her companionship.

She also submitted that in her culture maternal grandmothers are intimately involved in the upbringing of their grandchildren and that her status as a grandmother who is involved in her grandchild’s life is fundamental to her personal identity. Accordingly, she argued, there would be considerable stigma and distress associated with the loss of her maternal grandmother status on the basis that she is an unfit grandmother. [ 67 ] It is unclear to me, however, as to just how J.F.’s “African culture” has figured in her life. She told me she was born in India to missionary parents.

Her father was from Barbados and her mother was a Caucasian from Nova Scotia. Her parents immigrated to Canada when she was nine months old and she lived and grew up in Toronto and Hamilton until she moved to Newfoundland and Labrador in 1994. She believes, however, that S.F.’s father was of “African” descent. [ 68 ] The information provided to me by J.F. is not sufficiently clear, at least for the purposes of this application, to enable me to conclude that the degree of J.F.’s connection to an “African heritage” would trigger the application of

section 7. [ 69 ] Furthermore, it appears that J.F. has not had any significant involvement in S.F.’s life since her birth. She does not have de facto custody of her and has had virtually no visitational contact with her. Whether this was a result of her own choice or as a result of circumstances beyond her control, the fact remains that she has not had any visit with the child since November 1, 2011, the day of the child’s birth. Under these circumstances, I am unable to conclude that there is a serious or profound interference with J.F.’s psychological integrity such that the appointment of counsel as a remedy for breach of

section 7 of the Charter would be indicated. (

c) Other Factors [ 70 ] In light of the foregoing conclusion, there is no need to consider the other factors outlined in G.(

J) which would only become relevant if

section 7 of the Charter had been engaged. [ 71 ] It is sufficient to observe, therefore, that it was not contested that J.F. could not afford the services of a private lawyer or that she had been refused legal aid. I would also agree with the conclusion of the 2005 decision of this Court cited earlier that although J.F. is intelligent and articulate with a capacity to present her point of view the seriousness of the issues at stake and their legal complexity (potentially involving questions of

interpretation and application of statutory provisions and the application of the rules of evidence) lead to the conclusion that she would benefit from being represented by legal counsel. I am not satisfied, however, that the case would be incapable of being presented without a lawyer or that the Court would need the assistance of counsel to address the issues presented. Conclusion and Disposition

[ 72 ] I have concluded that, on the facts of this case, the G.(J.) principles are not engaged. Accordingly, the application for appointment of legal counsel to present this appeal on J.F.’s behalf was denied. J. D. Green C.J.N.L.