A. W. APPELLANT AND: MANAGER OF CHILD YOUTH v. FAMILY SERVICES, ZONE F RESPONDENT, 2014 NLCA 22

Date: 201 40429 Docket: 13/78 Citation: A.W. v. Newfoundland and Labrador (Child, Youth and Family Services) , 2014 NLCA 22 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-122. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: A. W. APPELLANT AND: MANAGER OF CHILD YOUTH AND FAMILY SERVICES, ZONE F RESPONDENT Coram: Green C.J.N.L., White and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador General Division 201306G0010 Appeal Heard: December 13, 2013 Judgment Rendered: December 13, 2013 (Orally) Written Reasons Filed: April 29, 2014 Reasons for Oral Decision by White J.A. Concurred in by Green C.J.N.L. and Hoegg JJ.A.

Corrected Decision: The text of the original judgment was corrected on May 16, 2014. A description of the correction is appended. Counsel for the Appellant: Donald A. MacBeath Q.C. Counsel for the Respondent: Krista M.

Atkins REASONS FOR ORAL DECISION White J.A.: [1] This is an appeal of an order of a judge of the Trial Division dismissing the appeal of the appellant, A.W., from the order of ajudge of the Provincial Court placing A.W.’s daughter, A.D.W., in the continuous custody of the respondent, the Manager of ChildYouth and Family Services, Zone F (CYFS). [2] At the conclusion of the hearing, the panel allowed the appeal, set aside the decision of the Trial Division judge, ordered theTrial Division to proceed forthwith with the hearing of the appeal from the decision of the Provincial Court judge and ordered that CYFSprepare a transcript on an expedited basis.

The panel also stated that it would issue reasons for its decision, including a ruling on costs, indue course. These are those reasons. [3] A.D.W. was born […], 2012 when A.W. was 19 years old. A.D.W.’s father has not been identified. A.W. lived with hermaternal grandparents for most of her life and initially stayed with them after A.D.W. was born. After ten days, A.W. moved into anapartment with A.D.W.

Shortly thereafter CYFS began to receive expressions of concern about A.W.’s parenting abilities and visitedA.W.’s home. [4] After further notifications regarding A.W.’s parenting, CYFS retained a parent coach in July of 2012 to work with A.W. for 40hours each week. A.W. had been diagnosed with mild cognitive global delay and CYFS sought to assist her with her role as a newmother.

Despite the parenting coach being in place, CYFS continued to receive information that A.W.’s parenting abilities wereinadequate. [5] A.D.W. was removed from A.W.’s custody by CYFS acting with a warrant in August of 2012. [6] An application for protective intervention, initially seeking a six-month temporary custody order, was heard by a judge of theProvincial Court in the fall of 2012.

The application for temporary custody was converted to an application for continuous custody onOctober 17, 2012 and the Provincial Court judge granted the application on December 19, 2012, with reasons. [7] With the assistance of the Newfoundland Legal Aid Commission, A.W. filed a notice of appeal in the Trial Division from theProvincial Court decision on January 24, 2013, along with a copy of a request for a CD of the Provincial Court proceedings and anundertaking to request the preparation of a transcript within ten days. [8] The notice of appeal was never properly served on CYFS although CYFS did obtain a copy.

A.W. did not prepare a transcript,file an appeal book with the Trial Division, or otherwise perfect the appeal. This was understandable given that she was awaitingdecisions from the Legal Aid Commission on possible legal representation on the appeal. [9] A.W. was refused Legal Aid counsel for her appeal. Her internal appeal was also denied as was her appeal to the Legal AidAppeal Board.

The Board’s rejection was communicated to A.W. by a letter dated July 17, 2013. [10] CYFS filed an interlocutory application for an order to strike out or dismiss the appeal in the Trial Division on May 7, 2013 andtook the position that further delays would impact adoption planning for A.D.W.

This application was brought before the Trial Divisionjudge on four occasions, including: May 9, 2013, May 28, 2013, June 25, 2013 and July 25, 2013. [11] On May 9, 2013, the Trial Division judge adjourned the matter to May 28, 2013 due to A.W. having recently learned that shehad been denied Legal Aid and her expressed interest in appealing that decision. A.W. appeared unrepresented on May 28, 2013 and toldthe Court that Legal Aid had advised her that a decision would be made on her Legal Aid appeal within 30 days.

The judge inquired ofher as to what she planned to do about the appeal in the event she did not obtain a lawyer from Legal Aid to represent her. It does notappear that there was any discussion of her right to apply for state-funded counsel under the principles in New Brunswick (Minister ofHealth and Community Services v. G.(J.), (SCC), [1999] 3 S.C.R. 46. He asked “are you going to proceed on with theappeal yourself?” She replied, “I guess I got no other choice, if Legal Aid is not going to represent me”.

The Trial Division judgeadjourned the matter to June 25, 2013. [12] On June 25, 2013, A.W. again was self-represented. She brought a letter from her family doctor, a letter dated June 7, 2013from the chair of the Legal Aid Appeal Board stating it had deferred its decision, and a letter that she had written explaining why theappeal should be allowed. Based on the letter from the Legal Aid Appeal Board, the Trial Division judge adjourned the application toJuly 25, 2013.

On the first three hearings of the application, he had advised A.W. of steps to take in order to perfect her appeal,including obtaining a transcript of the proceedings at the Provincial Court. However, it would appear that A.W. was given to understandthat her obligation to advance the process herself arose only after it became clear that she was going to represent herself. For example,on May 28th he said: … as soon as you find out if you will or will not be getting legal counsel, then you must notify the Court and [counsel for the Manager]

… If you are not going to be represented by Legal Aid, then , you have to get on to the process of filing these materials right away… (Transcript, pp. 14-15) and And if you don’t have a lawyer representing you, you have also to indicate what your plans are about the appeal.

If you’re going to represent yourself, then you have to get and do all the work that’s got to be done to make that appeal come on as quickly as possible… (Transcript, p. 21) [Emphasis added.] [ 13 ] A.W. indicated to the judge, however, that she did take the step of obtaining the CD of the trial proceedings and brought it to the local Legal Aid lawyer, the assumption presumably being that she expected him to finalize preparation and filing of the transcript if Legal Aid representation was ultimately approved. [ 14 ] The other implication of the trial judge’s remarks on both May 9th and May 28th, 2013, previously referred to, is that if A.W. did not receive legal representation, she would be given, at some future time, an opportunity to make submissions on her own behalf regarding the merits of the appeal.

As matters occurred, that did not happen. [ 15 ] On July 25, 2013, A.W. again appeared for herself and produced a letter from the Legal Aid Appeal Board dated July 17, 2013, which stated that it had denied her appeal.

In response to a question from the judge as to whether she had obtained a transcript of the hearing in Provincial Court, she referred again to the fact that she had obtained a CD which, as noted previously, she had given to Legal Aid pending a decision on her representation. [ 16 ] The Trial Division judge allowed the application brought by CYFS and dismissed the appeal, stating: …we’re at the stage where this matter has to be dealt with, and I’m going to make a decision and to allow the application to dismiss the appeal.

And I’m doing it on the basis that the appeal hasn’t been brought on to the point that it should be by yourself. I realize that you’re not a lawyer. You’ve made efforts to get a lawyer, but you’re not going to get representation. You have to bring this matter through yourself, and you haven’t done that, and it’s been a long time since it has been on the go.

The difficulty is, of course, that the child is basically in a state of say, you know, abeyance as we call it, like a decision has to be made, the issue has to be addressed for the best interest of the child. … And, so as a result of that, I’m going to dismiss the appeal that you filed, and so that’s the end of the matter in this Court… [ 17 ] On appeal before this Court, A.W. was represented by counsel who undertook to proceed expeditiously with the appeal of the original Provincial Court order if this Court were to allow the appeal and order the appeal of the Provincial Court order to be heard on its merits.

The Court relied on this undertaking and his further undertaking to proceed with perfecting the appeal and setting it down for hearing without waiting for a decision on any future application for state-funded counsel.

In effect, counsel for A.W., a senior lawyer acting in the best traditions of the bar, undertook A.W.’s expeditious representation on the appeal before the Trial Division without any guarantee (or perhaps even realistic prospect) of payment. [ 18 ] In deciding to set aside the order of the Trial Division judge and order that the Trial Division hear A.W.’s appeal of the continuous custody order of the Provincial Court judge, this Court considered whether, in the circumstances, the Trial Division judge exercised his discretion judicially in failing to grant a further adjournment of A.W.’s appeal and in granting the Manager’s application to dismiss. [ 19 ] Counsel for A.W. succinctly states in his factum, and I agree, that: In this matter, the supervening consideration which the Learned Trial Judge should have applied in exercising his discretion to grant or not grant a further adjournment was the rights and interests of the child [A.D.W.].

This entailed ensuring that issues with respect to her future care and custody be determined after a fair hearing, including due consideration of the merits of her mother’s appeal from [the Provincial Court judge’s] Order of Continuous Custody. [ 20 ] Rule 57.23(1)(

e) of the Rules of the Supreme Court, 1986 , (applicable to appeals in the Trial Division by virtue of Rule 58.01) provided the basis for the Trial Division judge to postpone the hearing of A.W.’s appeal for such period as he deemed just. It was on this basis that he exercised his discretion to postpone when the matter came before him on the occasions previous to July 25, 2013. [ 21 ] A decision of a judge of the Trial Division to grant or refuse a postponement is not to be interfered with by this Court lightly.

It requires the Court to conclude such exercise of discretion denied a party a fair hearing, thereby constituting an error in principle. [ 22 ] CYFS argued before the Trial Division judge that the appeal ought to be struck out or, alternatively, dismissed, pursuant to rule 57.17(1) for undue delay in perfecting the appeal and/or because the appeal is frivolous, vexatious or without merit. [ 23 ] The approach of this Court is set out in K.(D.) v.

Newfoundland and Labrador (Manager of Child, Youth and Family Services), Zone 1 , 2012 NLCA 73 , 332 Nfld. & P.E.I.R. 42, an appeal with similar facts to this case which also involved unrepresented litigants with cognitive delays, denials of representation by Legal Aid, appeals to Legal Aid, postponements to allow for those appeals and a failure to file a transcript. [ 24 ] The decision in K.(D.) distinguishes between the considerations for striking out a notice of appeal and dismissing an appeal under rule 57.17.

[ 25 ] To strike out a notice of appeal it must be “plain and obvious” that the grounds of appeal cannot succeed. This is the case where an appeal is without justification at law, it is intended to annoy or embarrass the opposing party and there is no arguable ground. In coming to such a conclusion the Court must undertake some consideration whether there is merit to an appeal, but not make an assessment of its likelihood of success; it is not “a disposition of the appeal on its merits” (see Walsh v. Johnson , 2010 NLCA 6 , 293 Nfld. & P.E.I.R. 100 at para. 13 ). (See also Harnum v.

Green , 2007 NLCA 31 at para. 1 ; Walsh at paragraphs 12-15 .) [ 26 ] Green C.J.N.L. explained in Eco Zone Engineering Ltd. v. Grand Falls-Windsor (Town) , 2010 NLCA 15 , 297 Nfld. & P.E.I.R. 79, that parties are entitled to have their cases decided on the merits unless a party is responsible for undue delay that has caused prejudice to the other party. It follows that to have an appeal dismissed for delay requires considering the nature of the delay and with the prejudice posed to the opposing party balanced against the strong presumption in favour of hearing a case on its merits.

Each case requires exercising discretion; no set length of delay will necessarily warrant dismissal and a meritorious case will not dispel dismissing the appeal in all cases. Specific factors that ought to be considered by a court in this regard include: (

i) the subject-matter of the litigation; (ii) the complexity of the issues between the parties; (iii) the length of the delay; (iv) the explanation for the delay; (

v) the prejudice to the other litigant; and (vi) the potential merits of the appeal. The first four factors attempt to explain the nature of the delay (see Eco Zone Engineering at paragraphs 13 to 20). These factors are equally applicable to appeals where the interests of a child are at stake (see S. L. v. M.-E.F. , 2007 NLCA 12 , 264 Nfld. & P.E.I.R. 103). The interests of the affected child must, however, factor significantly in any balancing of the factor of delay against other considerations.

In S.L. , for example, Cameron J.A. stressed at paragraph [10] that “there should be no unreasonable delay in proceeding with the appeal” where the appeal involved custody of a young child. [ 27 ] To dismiss an appeal under rule 57.17, as opposed to striking out the notice of appeal, requires the Court to engage in a more intensive analysis of the merits of the appeal since, as stated by Hoegg J.A. at paragraph 15 of K.(D.) referencing Green C.J.N.L.’s comments at paragraph 16 of Walsh : …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. [ 28 ] The merits analysis required to dismiss an appeal must go beyond the enumerated grounds of appeal and extend to the existing record, including the trial decision (see Walsh at paragraph 17 ).

A more intensive analysis of the merits is required where a litigant is cognitively challenged and unrepresented by counsel (see K.(D.) at paragraph 19 and Walsh at paragraph 16 ). [ 29 ] In the instant case, the Trial Division judge purported to dismiss the appeal, not merely strike out the notice of appeal. [ 30 ] In dismissing the appeal, the Trial Division judge did not consider the factors set out in Eco Zone and S.L. or articulate any legal test whatsoever.

He stated that the appeal had not “been brought to the point that it should be” by A.W. and stated that the child was in a state of “abeyance” and “a decision has to be made, the issue addressed for the best interest of the child”. [ 31 ] He did not identify, however, what the interests of the child at that point were. He appears to assume that the child’s interests mandated adoption. But that assumption presupposes that the appeal is without merit, something he did not address.

No doubt if the position of the Manager were upheld, delay in the adoption process could impact negatively on the child’s long term interests. In this particular case, however, the record does not disclose any degree of significant short-term prejudice to the child if the case were to have been postponed a further short period of time to allow A.W. to prepare to argue against the Manager’s motion to dismiss or to argue the appeal merits. Ms.

Debbie Blake, A.W.’s case worker, told the judge on May 28th that although there was a concern about developing a bond between A.W. and A.D.W. if delay occurred and ultimately adoption took place, requiring the severing of that bond, the impact was primarily on the mother, not the child. She stated, “the baby will be able to re-adjust pretty quickly”. [ 32 ] On other occasions and in different contexts this Court has noted that delay is an important consideration when dealing with appeals involving children: J.F. v. T.P.S. , 2011 NLCA 70 , 313 Nfld. & P.E.I.R. 112 at paras. 12-16 ; M.W. v.

Newfoundland and Labrador (Director of Child, Youth and Family Services) , 2011 NLCA 76 , 315 Nfld. & P.E.I.R. 237 at para. 19 . There is a general recognition that “[t]he longer it takes … for an appeal in a case involving a child to be heard and decided, the greater is the likelihood that it may no longer be of benefit to the parties or the child involved” ( J.F. at paragraph 15 ).

That said, the prospect of some delay does not necessarily mean that other considerations involving the interests of the child, including the child’s interest in having her future decided on the merits must be disregarded, especially where the record does not, as here, establish that delay will necessarily be significant. All considerations involving the interests of the child as well as general fair hearing interests have to be balanced against each other in determining whether an adjournment should be granted and the appeal dismissed without an appeal on the merits.

Here, the Trial Division judge did not do that. [ 33 ] The Trial Division judge did not have a transcript of the Provincial Court decision before him nor did he refer to the reasons of the Provincial Court judge. A dismissal requires at least a cursory merits analysis – a look at the grounds of appeal and a look at the judgment and the record – even if a review of the transcript is not always necessary. Without such a cursory merits analysis, it is not possible to say an appeal is frivolous or devoid of merit.

[ 34 ] While the best interests of the child are always of the highest significance, and are clearly to be considered when addressing the impact of delay and the effect of prejudice in this case, neither A.W. nor A.D.W. was represented by counsel when the application to dismiss made by CYFS (represented by counsel) was allowed by the Trial Division judge.

In G.(J.) , Lamer C.J. explains at paragraph 70 that “…[t]he state may only relieve a parent of custody when it is necessary to protect the best interests of the child, provided there is a fair process for making this determination.” Lamer C.J. continues at paragraph 73 to state that in order to be fair “… the parent must have an opportunity to present his or her case effectively.” [ 35 ] While in G.(J.) the Court went on to find in that case that a fair hearing required that the parent be represented by counsel, a similar result may not necessarily have been the case here.

At least, though, a fair hearing on whether or not to dismiss the appeal in this case ought to include a review of the Provincial Court decision, the grounds of appeal and an invitation to A.W. to elaborate on her dissatisfaction with the Provincial Court decision. Considering A.W.’s cognitive issues, she may not have been able to fully articulate her position. In such cases, assistance of counsel may well be the only means of ensuring fairness.

Unlike G.(J.) however, A.W. did not make an application for state-funded counsel nor did she appear to be aware that she could do so, as there was no discussion of this issue in the Court. [ 36 ] In dealing with the matter as he did the Trial Division judge effectively made two decisions, both of which involved error. The first was the decision not to grant a further adjournment to allow A.W. to make argument on her own behalf in support of allowing the appeal.

Given that up to the point of the court appearance on July 25, 2013, the focus was on whether A.W. was going to be represented by a Legal Aid solicitor, it is understandable that she was not prepared on that date to argue the appeal on her own or that a transcript had not been prepared (since that would be something that Legal Aid counsel, if appointed, would be expected to do). [ 37 ] In addition, as previously stated it does not appear that A.W. was aware that she could apply for state-funded counsel outside of the Legal Aid scheme under the principles of G.(J.) .

All of these matters were relevant considerations, along with the delay as it affected the child, to whether a further short adjournment was warranted to enable the child’s interests to be fully addressed by a fair hearing where the merits of her mother’s appeal were heard. [ 38 ] The second decision made by the Trial Division judge was to dismiss A.W.’s appeal once he decided that there would be no further adjournment. As noted, just because Legal Aid counsel is not appointed and the judge decides to proceed forthwith without adjournment, it does not follow that the appeal ought to be automatically dismissed.

There must be a determination made that the appeal is frivolous, vexatious or otherwise without merit or that the appellant has unduly delayed the preparation and perfection of the appeal within rule 57.17 (1) (

a) or (e). The Trial Division judge made no such determinations. Although obviously concerned about the importance of delay on the child, he made no determination that in the totality of the circumstances, that delay was “undue”. In any event, before making such determinations it was incumbent on the judge to give A.W. an opportunity to make submissions on such matters on July 25, 2013 even if he was not prepared to grant an adjournment.

By not doing so and by not addressing whether the grounds for dismissal were established the Trial Division judge also fell into error. [ 39 ] The application to dismiss should not have been granted. Permanent separation of a parent and child requires more than what was undertaken here. A fair hearing must take place, not only for the parents’ benefit but also for the benefit of the child.

It is in the child’s interest as well to have her future determined after a fair hearing where the merits of her mother’s appeal ‒ at least in the context of an application to dismiss ‒ have an opportunity to be considered. [ 40 ] As the Trial Division judge did not exercise his discretion according to proper principle, he erred.

This Court then proceeded to exercise the discretion that the judge should have exercised, according to proper principle, and ordered that A.W.’s appeal proceed forthwith in the Trial Division. [ 41 ] As A.W. was successful in this Court in having the Trial Division judge’s decision to dismiss the appeal set aside, she should have her costs on the appeal. ____________________________________ C. W. White J.A. I Concur: ________________________________ J. D. Green C.J.N.L. I Concur: ________________________________ L. R. Hoegg J.A. Correction Notice Correction made on May 16, 2014: 1.

On page 10, paragraph 38, reference to “rule 57.17(

a) or (e)” was replaced with “rule 57.17 (1)(

a) or (e)”.