T. R. APPELLANT AND: THE MANAGER OF CHILD, YOUTH v. FAMILY SERVICES RESPONDENT, 2014 NLCA 19

Date: 201404 07 Docket: 13/68 Citation: T.R. v. Newfoundland and Labrador (Child, Youth and Family Services) , 2014 NLCA 19 PUBLICATION BAN: There is a Publication Ban on the names and any other identifying information of the children referred to herein, as well as the names of their biological parents, relatives and foster families pursuant to

section 52 of the Children and Youth Care and Protection Act , SNL 2010, c. C-12.2. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: T. R. APPELLANT AND: THE MANAGER OF CHILD, YOUTH AND FAMILY SERVICES RESPONDENT Coram: Green C.J.N.L., Welsh and Mercer JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador, Trial Division (Family) 201102F0739 Appeal Heard: February 11, 2014 Judgment Rendered: April 7, 2014 Reasons for Judgment by Mercer J.A.

Concurred in by Green C.J.N.L. and Welsh J.A. Counsel for the Appellant: Rhona Buchan Counsel for the Respondent: Cynthia Janes Mercer J.A.: [ 1 ] This appeal addresses whether procedural fairness was observed in court proceedings that resulted in an order that a child be placed in the continuous custody of the provincial child protection service. Statutory Framework [ 2 ] The actions of the child protection service and the proceedings of the court below were taken pursuant to the Children and Youth Care and Protection Act , SNL 2010, c. C-12.2 ( Act ).

A brief outline of the provisions of the Act pertaining to this appeal now follows. 8. The purpose of this Act is to promote the safety and well-being of children and youth who are in need of protective intervention. 9.

(1) This Act shall be interpreted and administered in accordance with the principle that the overriding and paramount consideration in a decision made under this Act shall be the best interests of the child or youth. … 10.

(1) A child is in need of protective intervention where the child (

a) is being, or is at risk of being, physically harmed by the action or lack of appropriate action by the child’s parent; … (

c) is being, or is at risk of being, emotionally harmed by the parent's conduct and there are reasonable grounds to believe that the emotional harm suffered by the child, or that may be suffered by the child, results from the actions, failure to act or pattern of neglect on the part of the child's parent; . . . [ 3 ] Where the Manager, being the person appointed to exercise the powers and perform the duties conferred or imposed by the Act , determines that a child is in need of protective intervention, a court process is mandated.

Subject only to the important exception discussed below, the Act requires two court hearings where the Manager seeks a determination that a child is in need of protective intervention and the child has been removed from the care of a parent or parents pending that determination. [ 4 ] A protective intervention hearing must be held within 30 days of the removal of the child from the care of a parent or parents (see the Act at sections 25 - 26 ). The purpose of that hearing is to determine if the child is in need of protective intervention, and if so, the form of that intervention. The Act provides that: 32.

(1) At a protective intervention hearing, a judge shall determine whether a child is in need of protective intervention.

(2) Where a judge finds that a child is in need of protective intervention, the judge shall so declare and order that (

a) the child be returned to or remain with the parent and under a manager's supervision for a specified period of up to 6 months; (

b) the child be placed in the temporary custody of the child's family or a person significant to the child, other than the parent from whom the child was removed, with the consent of that person and under a manager's supervision, for a specified period in accordance with

section 33; (

c) the child be placed in the temporary custody of a manager for a specified period in accordance with

section 33; or (

d) the child be placed in the continuous custody of a manager. …

(6) Where a judge makes an order for continuous custody under paragraph (2)(d), (

a) the order shall not contain conditions; and (

b) the manager has custody of the child and has all the rights and responsibilities of a parent for the child's care and future planning.

(7) Where the judge finds that the child is not in need of protective intervention, the judge shall so declare and shall make an order that the child remain with or be returned to the parent from whom the child was removed and the order shall not contain conditions. [ 5 ] A presentation hearing, preliminary to the protective intervention hearing, is required where a child has been removed from the care of the parent or parents (see the Act at

section 27 ). The nature and purpose of the presentation hearing is as follows:

(1) A presentation hearing (

a) may be conducted by a judge in an informal manner; and (

b) shall be concluded within one day, unless extended by the judge.

(2) At the conclusion of a presentation hearing, a judge may (

a) dismiss the application for a protective intervention hearing; (

b) order that the child be returned to or remain with the parent under the supervision of a manager or social worker until the conclusion of the protective intervention hearing; (

c) order that the child be placed in the custody of a parent, other than the parent from whom the child was removed, under the supervision of a manager until the conclusion of the protective intervention hearing; (

d) order that the child be placed in the care of the child's family or a person significant to the child, other than the parent from whom the child was removed, under the supervision of a manager until the conclusion of the protective intervention hearing; (

e) order that the child be placed in or remain in the custody of a manager until the conclusion of the protective intervention hearing; or (

f) make a declaration that the child is in need of protective intervention and make an order under subsection 32 (2) . (Emphasis added.) [ 6 ] As suggested by its name, an order for continuous custody effectively terminates the rights of the child’s parent or parents. The Act clarifies that: 39.

(1) Where an order for continuous custody is made under paragraph 32(2)(d), (

a) the manager becomes the sole custodian of the child and has the right to make all decisions regarding the child; … (

c) the manager may consent to the adoption of the child under the Adoption Act . [ 7 ] Prior to an adoption order and with the leave of the court, an application for rescission of a continuous custody order may be undertaken as per

section 42 of the Act . [ 8 ] The Act provides that proceedings (which term includes a presentation hearing) may be as informal as the judge considers appropriate. Furthermore, at such proceedings the judge may adopt hearsay evidence and various forms of out of court statements. The Act provides: 48.

(1) A proceeding under this Act … (

b) may be as informal as a judge may allow; …

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

a) the evidence, including hearsay, that the judge considers relevant and reliable in the circumstances; (

b) an oral statement which has been video-taped; (

c) a written statement; (

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. Initial Removal of the Child [ 9 ] T.R. is the mother of J.W. (the child), born […], 2013. Pursuant to a telewarrant authorized by section 22(2) of the Act , the child was removed from the care of T.R. upon birth and placed in the care of the Manager.

The Information grounding the warrant stated that T.R.’s other four children had previously been placed in the continuous custody of the provincial child protection service and that T.R. and the father of the child had a history of drug use as well as significant involvement with the criminal justice system. When T.R. presented at the hospital to give birth to the child, health professionals suspected that she was under the influence of illegal drugs. T.R. was also observed to have needle markings indicative of intravenous drug use. There was concern that the child could experience withdrawal symptoms.

When the father of the child appeared at the hospital, he was reported to be staggering and likely under the influence of drugs. Attached to the Information of […], 2013 was a previous Information of August 25, 2011 concerning the taking into care of another of T.R.’s children. That document gave details of T.R.’s lengthy history of drug addiction, drug trafficking, other

involvement with the criminal justice system, and her participation in drug treatment programs. In particular, her history included that three children born prior to 2011 had been placed in the custody of the provincial child protection service and that efforts made for reunification of T.R. with her children had been unsuccessful due to her conduct. Proceedings in the Trial Division [ 10 ] Following issuance of the telewarrant authorizing the removal of the child, the Manager on June 17, 2013 filed an application for a protective intervention hearing seeking an order for continuous custody.

A presentation hearing was set for June 25, 2013 and the protective intervention hearing was scheduled for July 11, 2013. [ 11 ] On June 25, 2013 the Manager filed with the court a plan of care for the child, as required under the Act .

The plan detailed further allegations respecting the ability of T.R. and the child’s father to care for the child; including that: - the child had been prescribed morphine for withdrawal symptoms due to his mothers’ use of opiates during pregnancy; - T.R.’s last residence was in poor condition and contained evidence of drug use; - there was a warrant for T.R.’s arrest on charges of theft, fraud, uttering a forged document, assault, assault causing bodily harm, and failure to comply with an undertaking; - the father of the child had scheduled court appearances on charges of theft, breach of probation, and failure to comply with an undertaking; - as of June 24, 2013, T.R. had not contacted the Manager to inquire about the child’s health, and - on June 25, 2013, the Manager was informed that T.R. and the father had been arrested and were being held in custody. [ 12 ] When the presentation hearing was called in Court, the parents were represented by duty counsel and the matter was set over to July 11, 2013, at which time the matter was called before the trial judge.

The parents, through counsel, indicated their consent to conclude the presentation hearing and to have the child remain in the Manager’s custody until the conclusion of the protective intervention hearing.

The trial judge declined to conclude the presentation hearing stating: I’m not prepared at this stage to … conclude the presentation hearing because I don’t want to foreclose the opportunity of having a full consideration of the … order I might make … I am concerned … whether or not there is a real … opportunity that this child could actually be … parented by either or both [parents] … I may well be making an order under

section 32 of the Act which will basically foreclose the ability to have a protective determination hearing. ... I’m just going to adjourn … the presentation hearing at this stage without an order until I see exactly what the parties present before me on … the date that we return … [ 13 ] The presentation hearing was set over to August 1, 2013 to allow the parents to consult with counsel. On August 1, 2013 the trial judge began the hearing by referencing his July 11, 2013 comments and stating: … I had decided that I was going … to decide whether or not I would actually grant an order under

section 32 of the Act based upon what I heard … on the next occasion … when it was determined what the situation was with regard to their incarceration. … The Court was advised that T.R.’s criminal matters had not yet been resolved. T.R.’s counsel requested a further adjournment stating that a sentencing decision was required in order for T.R. to develop an alternative plan of care for the child. The trial judge noted his responsibility to consider the best interests of the child, the addiction issues respecting the child, and T.R.’s parenting history.

He then stated: … And … my thinking right at the moment to be quite frank is that … the Act gives me the power and the authority to make an order directly under

section thirty two and this is one of those cases that is so as far as I’m concerned so certain as regards to … what the end result can be. I cannot foresee a situation where either one of you is going to be able to parent this child in the foreseeable future on your own and as a result from my point of view I think … what I’m going to be doing and what I’m thinking about doing at this stage is actually making an order now placing the child in the continuous care of the director.

I’m not opposed to waiting for another couple of weeks to do that … So, I have no problems with basically adjourning the matter to see what happens with the criminal charges but I want you to both be aware of the fact that I am very seriously considering making the order now … … So I will set this over to … August the 20th at three o’clock in the afternoon and that will be to conclude the presentation hearing. So if there are other plans or something else you want me to see make sure I get it in plenty of time. [ 14 ] The presentation hearing was then adjourned to August 20, 2013.

On that date the Manager requested, for the first time, that an order for continuous custody be made at the presentation hearing. Counsel for T.R. advised that her sentencing was set for September 4, 2013, likely with a joint submission for a one year term of imprisonment. Counsel indicated that T.R. would likely be recommended for temporary absences from prison to participate in a community drug treatment program to begin in January 2014. Counsel opposed the immediate issuance of an order for continuous custody as there was evidence to be heard respecting T.R.’s ability to care for the child.

Counsel requested that a half-day be set to complete the presentation hearing following T.R.’s sentencing. Counsel for the father took a similar position. Both counsel indicated the parties would consent to a six-month custody order and T.R. spoke to the Court respecting her commitment to the proposed drug treatment program.

[15] Following those submissions, the trial judge granted the requested order that the child be placed in the continuous custody ofthe Manager. On October 1, 2013, the trial judge filed additional reasons for his oral decision (see Newfoundland and Labrador (Child,Youth and Family Services) v. T.R., 2013 NLTD(F) 30, 341 Nfld. & P.E.I.R. 147 (Trial Decision)). Trial Decision [16] The Trial Decision provided a detailed review of the Act, the circumstances of this case, and the reasons for the trial judge’sdisposition. The following passages are particularly relevant to this appeal: [42] … A presentation hearing is held early after proceedings have been commenced and, as such, must be

summary in nature. Where there is a dispute as to material facts related to the Manager’s application, such must be resolved in favor of the safety and well-being of the child at that stage of the proceedings pending the full protective intervention hearing. Generally, viva voce testimony willneither be led nor is it required at such a hearing. That is not to say that a judge may not permit or require it in certain exceptionalcircumstances.

The Manager’s plan of care, filed pursuant to s. 29(1) of the Act, as well as any other documentation filed, includingwarrant documentation, is to be the basis upon which a judge is to decide whether the matter should proceed to a full protectiveintervention hearing subject to any evidence and documentation provided by the parents. … … [46] A child protection proceeding involving the apprehension of a child from parental care by the state brings into play the right tosecurity of the person, both for the child and for the parents. (See, Winnipeg Child and Family Services v.

K.L.W., 2000 SCC 48, [2000]2 S.C.R. 519, and New Brunswick (Minister of Health and Community Services) v. G. (J.) [J.G.], (SCC), [1999] 3S.C.R. 46, [1999] S.C.J. No. 47.) As such, I am satisfied that parents are entitled to certain procedural and other safeguards to ensure thatthey have an opportunity to be heard and their positions considered.

This is so notwithstanding that decisions made under the Act aregoverned by the best interests principle. … [52] … it is to be recognized, particularly as regards the granting of continuous custody orders, that because of the nature of thepresentation hearing, it will be a rare occurrence at this early a stage in the proceedings and only in the clearest of circumstances that itwill be appropriate for a judge to make an order pursuant to s. 31(2)(

f) for continuous custody. [53] I would also conclude that if such an order is being contemplated, or any order under s. 31(2)(f), the parents should be advised ofthis so that they have an opportunity to be heard as regards that and also to permit them an opportunity to present documentation,potentially an alternate plan of care, that would permit a judge to decide otherwise.

Such an order should only be made where it is foundthat there really can be little doubt as to the result of the application, making the holding of a protective intervention hearing unnecessary,and where it is in the best interests of the child that the matter proceed in such a fashion. It is to be remembered that the scheme of thelegislation recognizes that time is an important factor in acting in a child’s best interests. A balancing and consideration of the rights ofthe parents, including their procedural rights, must occur along with the rights of the child in accordance with the best interests principle.

As such, where s. 31(2)(

f) is being contemplated at a presentation hearing, much more than a prima facie case for same must bepresented before such an order can be appropriately made, both as to declaring that a child is in need of protective intervention and asregards the order to be made pursuant to that subsection. Again, such circumstances will arise only rarely, particularly where acontinuous custody order is to be made. [54] I have found, based on the documentation presented by the Manager at the hearing before me that the circumstances in this caseare such as to make it appropriate and necessary to make an order under s. 31(2)(

f) based upon the best interests of this child. It is clearthat the child is in need of protective intervention based primarily upon the mother’s long-standing drug addiction and her inability toresolve this as well as the result of the criminal activity of the parents.

The fact that the child has had to undergo drug withdrawaltreatment at birth, the criminal involvement and incarceration of both parents which means that neither at this point in time can parentthis child, as well as the obvious potential instability for the child in his future based on the parents’ past drug and criminal involvement,are all facts and matters that can be the subject of little dispute. The child is definitely in need of protective intervention.

As to theappropriate order, the best interests of this child clearly are met by placing him in the continuous custody of the Manger so thatpermanency planning can commence. As an infant, there is likely a good prospect for his eventual placement with an appropriateadoptive family. [55] While the mother, as in the past, has stated a desire and an intention to partake in services and to remain drug free, again, hercommitment must be considered in the context of what has happened in the past as related to her other children.

While it is my hope thatthe mother can succeed in dealing with her issues, there is nothing to suggest that such is guaranteed to occur or that it will happen at anoptimal time for J.A.W. [56] While in appropriate circumstances temporary orders are granted to permit parents an opportunity to overcome their parentaldeficiencies, this is a case where the mother has been given many opportunities over a significant period of time to resolve her drugissues in particular so that she could care for her children.

Those opportunities ultimately resulted in her other four children being placedin the continuous care of the Manager. There is nothing before me, even considering the mother’s present desire to avail of services atEmmanuel House, etc., which permits me to conclude that it is in the best interests of J.A.W. for there to be any order other than acontinuous custody order at this time. A temporary order just does not made sense in the circumstances.

It is also to be noted as wellthat neither parent has yet played any role in the life of this child at a time where the child’s development is so formative and there is noreal guarantee or a substantial likelihood that either will be able to take on a parenting role in the near future. At this time, this childrequires stability and permanency planning and, as a result, a continuous order is necessary.

[57] As to procedural safeguards followed here by me prior to making this order, I am satisfied that both parents were given areasonable opportunity through postponements to develop an appropriate alternate plan for the child and their involvement in his life. Both were advised early on that I was contemplating making an order under s. 31(2)(

f) and both were heard as to their respectivepositions. While the proceedings were not a full hearing in which viva voce evidence was heard, there was more than sufficient materialplaced before me to justify the making of the order for continuous custody considering the best interests of this child.

ISSUE [17] The sole issue on appeal, as agreed by counsel, is whether the trial judge failed to observe procedural fairness in his conduct ofthe presentation hearing which resulted in the order that the child be placed in the continuous custody of the Manager. [18] Whether procedural fairness was observed is an issue of law and accordingly the applicable standard of review on appeal is thatof correctness. Appellate deference to a trial decision respecting child protection applies to “fact-based and discretionary family lawdecisions unless manifest error is found” (see Grimes v.

Grimes, 2012 NLCA 68, 329 Nfld. & P.E.I.R. 29, at para. 24). Where thestandard of correctness does not apply, while the role of the appellate court is not to retry the case in the sense of making its own findings of fact and substituting its opinion for that of the trial judge, neverthelessit is part of the function of appellate review to review the record generally to satisfy itself that there is evidentiary support for theconclusion which the trial judge reached.

Re B.(J.) (1998), (NL CA), 166 Nfld. & P.E.I.R. 1 (NLCA) at para. 141, see also para. 43. [19] It should be noted that the father of the child is not party to this appeal. [20] It appears that this is the first reported case in which an order for continuous custody was granted at the presentation hearingstage pursuant to section 31(1)(

f) of the Act. It is therefore the first occasion for this Court to consider the requirements of proceduralfairness in that context. ANALYSIS [21] The requirement of procedural fairness is one of the principles of fundamental justice developed at common law and engagedunder the Canadian Charter of Rights and Freedoms. Its enduring importance in child protection proceedings under

section 7 of theCharter has been recognized by the Supreme Court of Canada in New Brunswick (Minister of Health and Community Services) v. G. (J.), (SCC), [1999] 3 S.C.R. 46: [70] … Thus, the principles of fundamental justice in child protection proceedings are both substantive and procedural. The statemay only relieve a parent of custody when it is necessary to protect the best interests of the child, provided that there is a fair procedurefor making this determination.

Lamer C.J. then gave general guidance respecting the necessary components of a fair procedure: [72] A fair procedure for determining whether a custody order should be extended requires a fair hearing before a neutral andimpartial arbiter. The paramount consideration at the hearing should be the child’s best interests. … [73] For the hearing to be fair, the parent must have an opportunity to present his or her case effectively. Effective parentalparticipation at the hearing is essential for determining the best interests of the child in circumstances where the parent seeks to maintaincustody of the child.

The best interests of the child are presumed to lie within the parental home. However, when the state makes anapplication for custody, it does so because there are grounds to believe that is not the case. A judge must then determine whether theparent should retain custody. In order to make this determination, the judge must be presented with evidence of the child’s home life andthe quality of parenting it has been receiving and is expected to receive. The parent is in a unique position to provide this information tothe court.

If denied the opportunity to participate effectively at the hearing, the judge may be unable to make an accurate determinationof the child’s best interests. There is a risk that the parent will lose custody of the child when in actual fact it might have been in thechild’s best interests to remain in his or her care. See also B.(R.) v. Children’s Aid Society of Metropolitan Toronto, (SCC), [1995] 1 S.C.R. 315; Winnipeg Child andFamily Services (Central Area) v.

W. (K.L.), 2000 SCC 48, [2000] 2 S.C.R. 519. [22] To ensure effective parental participation in child custody hearings certain rights of the parents have been recognized. Theseinclude:

a) The right to observance of statutory notice requirements and disclosure of the case to which the parent or parents will have torespond (see Catholic Children’s Aid Society of Metropolitan Toronto v. L.O., (ON SC), [1996] 139 D.L.R. (4th) 534,O.J. No. 3018, (Ont. C.J.) affirmed in Catholic Children’s Aid Society of Metropolitan Toronto v. L.O., (ON CA),[1997] 149 D.L.R. (4th) 464, O.J. No. 3041, (Ont. C.A.));

b) The right to have a reasonable opportunity to respond to the case for removal of the child from parental care (see Children’s AidSociety of Halton Region v. K.L.A., (ON CA), [2006] O.J. No. 3958, 32 R.F.L. (6th) 7 (Ont. C.A.));

c) The right to have the case decided by an impartial judge. This common law right as described in R. v. S.(R.D.), (SCC), [1997] 3 S.C.R. 484 applies to child protection proceedings (see, for example, Marchand (Litigation guardian of) v. PublicGeneral Hospital Society of Chatham, (2000) (ON CA), 51 O.R. (3d) 97 (Ont. C.A.)); and

d) The right to representation by counsel in circumstances where the absence of counsel would result in an unfair hearing, therebyviolating the right to security of the person recognized in

section 7 of the Charter (see G. (J.)).

[23] The principle that there be a fair hearing encompassing the opportunity for effective parental participation applies to all hearingsunder the Act where an order for custody of a child is sought by the Manager. However, the fair hearing principle does not necessarilyrequire a full trial or hearing at which viva voce evidence is presented. In appropriate circumstances a

summary proceeding may bepreferable to protect the best interests of the child while ensuring the opportunity for effective parental participation. The Trial Divisionjudge hearing a child custody proceeding under either

section 31 or 32 of the Act has the jurisdiction to determine the extent of thehearing including whether it should be

summary in nature (see L.O.). The provisions of

section 48 of the Act, stated above, respectingthe nature of proceedings under the Act and the admissibility of non viva voce evidence, are relevant in this regard. [24] Nevertheless, in view of the overriding requirement that there be a fair hearing, in order for a continuous custody order to begranted under the Act without a trial or hearing at which viva voce evidence is presented, certain procedures must be followed: - The parent must be clearly informed that a

summary order is being sought or is contemplated; - The parent must be provided with disclosure by affidavit of the specific facts which are alleged to show that there is no genuineissue requiring a full hearing; - The parent must have a reasonable opportunity to respond to the foregoing; and - The parent’s response, to be filed within a reasonable time, must set forth the alleged facts showing there is a genuine issuerequiring a full hearing. [25] In a protective intervention hearing under the Act the above procedural safeguards are met by Rule 56A.75 of the Rules of theSupreme Court, 1986, SNL 1986, c. 42 Sch.

D, which is inapplicable to a presentation hearing. However, in a presentation hearing theabove procedural safeguards apply as a matter of common law. In assessing whether these procedural safeguards have been observedprime regard must be had to the substance, not the form, of the steps taken to ensure a fair hearing. [26] In determining whether a

summary determination is warranted, the principles of

summary judgment law developed in this andother Canadian jurisdictions apply equally in this context. See for example Ledrew v. Burke (1999), (NL CA), 176Nfld. & P.E.I.R. 288 (Nfld. C.A.) and Newfoundland and Labrador (Director of Child, Youth and Family Services) v. J. (T.), 2010NLTD(F) 21, 300 Nfld. & P.E.I.R. 90 at paras. 6-16. The onus is on the Manager to establish that there is no genuine issue requiring afull hearing, i.e. that there is neither a substantial question of law nor a material evidentiary issue requiring credibility assessments orfindings respecting disputed facts.

In order for the parents’ response to assist in determining whether there is a genuine issue, it mustcontain more than bald denials and go beyond a heartfelt expression of desire to resume custody (see Children’s Aid Society of SimcoeCounty v. R.(D.), 2010 ONSC 2092 and Children’s Aid Society of Toronto v. T.T., 2012 ONCJ 318). [27] In the present case, T.R. contended that her right to procedural fairness at the presentation hearing was breached.

She submittedthat the same procedural safeguards as apply at a protective intervention hearing should apply at a presentation hearing, and that suchsafeguards were not observed by the trial judge. Specifically, it was argued that: - there was no written notice or application for

summary determination to which to respond but “simply comments” from the benchwhich were insufficient notice; - the parties were not directed by the trial judge “to argue or bring evidence on whether this was a genuine issue for trial”, and - the appellant was denied “the ability to have her case considered in full” by the trial judge’s denial of her requested postponementso she could call witnesses and respond to the Manager’s application. [28] From the initial application of June 11, 2013, the Manager sought continuous custody of the child.

The documentation filed onthat date and on June 25, 2013 disclosed the case to which the parents had to respond. On July 11, 2013 the trial judge stated that he wascontemplating the issuance of the continuous custody order at the presentation hearing stage, based upon the documents on file, andindicated that he would not issue the order until he saw exactly what the parties would present to him on the return date. On August 1,2013 he reiterated that the facts could warrant issuance of a continuous custody order at this stage.

He stated that the presentationhearing would conclude on the return date of August 20, 2013 and that he should be provided by the parents with an alternate plan ofcare or other materials. [29] I conclude that the statements of the trial judge on July 11, 2013 and August 1, 2013 constituted a sufficiently clear notice thatthe trial judge believed that the circumstances of this case could warrant issuance of the requested order without a full hearing at whichviva voce evidence would be presented. He explicitly requested that the parents respond on or before August 20, 2013.

In my view it isnot essential that there be a written notice of an application for

summary determination at a presentation hearing (see L.O. at paragraphs84 to 88). What is necessary is that, as occurred here, the parents receive clear notice that

summary determination was being sought orwas contemplated. It is also clear from the transcripts, as noted above, that the parents were directed by the trial judge to bring forwardtheir response for consideration before a decision was made on whether a full hearing was not required. [30] The notice in this case was initiated by the trial judge, not the Manager. Though in non-family civil matters it would fall to theparties to initiate a

summary proceeding, it is permissible for the trial judge to do so in proceedings under the Act. That power flowsfrom the court’s inherent jurisdiction to conduct its process, see L.O. at paragraphs 62 to 68. Furthermore, the powers conferred on thetrial judge under the Act have to be exercised “in accordance with the principle that the overriding and paramount consideration … shallbe the best interests of the child …” as per section 9(1). It follows that in appropriate circumstances, i.e. where the best interests of thechild require, a pro-active role for the trial judge is appropriate.

In exercising a pro-active role, the trial judge must be vigilant to ensurethat the requirement of procedural fairness be observed. The record does not support a finding that this principle was violated in thiscase. [31] Nor does the record support the contention that T.R. was denied a reasonable opportunity to respond. Though she was incustody on criminal charges, she had notice from July 11, 2013 that

summary determination was possible and that the trial judge had

requested her response to the documentation filed by the Manager. She was represented throughout by counsel. T.R.’s response was given in her statement to the court on August 20, 2013 and in the submissions of her counsel on that date, both of which indicated the nature of the evidence proposed to be adduced at a full hearing. [ 32 ] An examination of the transcripts and trial decision leads me to conclude that the trial judge, throughout the presentation hearing, ensured that the requirements of procedural fairness were observed.

The trial judge did not err in his determination that there was no genuine issue requiring a full hearing. There was a proper evidentiary basis for his conclusions that the child was in need of protective intervention and that the appropriate disposition was to place the child in the continuous custody of the Manager.

SUMMARY a. The principles of procedural fairness apply to all hearings under the Act where custody of a child is sought by child protection services. b. The Trial Division judge has the power at the presentation hearing stage to determine whether a

summary determination is appropriate having regard to the best interests of the child and the rights of the parents. c. Where a

summary determination is sought or contemplated by the judge at the presentation hearing stage, procedural safeguards apply to ensure that the parents receive reasonable notice, disclosure, and an opportunity to respond. d. Procedural fairness was observed in this case. DISPOSITION [ 33 ] For the reasons stated, I would dismiss the appeal. There should be no order respecting costs. ______________________________ K.J. Mercer J.A. I Concur: _________________________________ J. D. Green J.A. I Concur: _________________________________ B. G. Welsh J.A.