M. B.-W. APPELLANT AND: R. Q. RESPONDENT, 2015 NLCA 28

Date: 2015 0529 Docket: 14/34 Citation: M. B.-W. v. R.Q. , 2015 NLCA 28 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: M. B.-W. APPELLANT AND: R. Q. RESPONDENT Coram: Green C.J.N.L., Welsh and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (F) 200202U12074 Appeal Heard: June 6, 2014 Judgment Rendered: May 29, 2015 Reasons for Judgment by Green C.J.N.L. Concurred in by Welsh and Hoegg JJ.A. Counsel for Appellant: J. Michael Cabot Counsel for Respondent: Janet A. Tucker

Green C.J.N.L.: [ 1 ] This appeal addresses, amongst other things, the scope of the powers of a trial-readiness judge and a case management judge in connection with provision of legal representation of a child in a family law dispute. It also engages the question of the degree, if at all, to which such a judge may revisit and vary a previous child representation order and the factors to be considered in making such a decision. [ 2 ] Under appeal is an order made by LeBlanc J. of the Family Division purporting to revoke a previous child representation order made by Fry J. several months earlier.

The appellant mother submitted that the Order by Fry J. could only be set aside by way of appeal from that Order (something that was not undertaken) and could not be changed or revoked by another judge of co-incident jurisdiction.

She also submitted that even if the second judge had such authority, he should not have exercised it here, as it was in the best interests of the fourteen-year-old child in question that she have independent representation. [ 3 ] The appeal was heard on an expedited basis with attenuated written (but fulsome oral) submissions – eight days after the filing of the notice of appeal – because of the need for an answer before the commencement of a trial scheduled three days later. [ 4 ] At the conclusion of the appeal hearing, this Court granted leave to appeal but dismissed the appeal with reasons to follow.

What follows are my reasons for the decision that was reached. Background [ 5 ] The case involves a parental dispute as to custody and access with respect to a fourteen-year-old child. The husband made allegations of parental alienation by the mother. [ 6 ] In a case management meeting held on January 15, 2014 before Fry J., the father’s counsel requested an independent psychological assessment of the child to determine her views and preferences with respect to parenting and to determine whether parental alienation by the mother was taking place.

The mother’s counsel opposed such an assessment but countered with a request to have independent counsel appointed for the child. This issue had also been briefly discussed at a prior case management hearing conducted by another judge. The husband’s counsel suggested, nevertheless, that an assessment of whether parental alienation was occurring should be undertaken first because “if she’s being directed by her mother to want to have counsel, [it] … might not be appropriate” (transcript,15 Jan. 2014, p. 8). Fry J. saw it somewhat differently.

She said: Well, I’m just going to say that a 14 year old, who is expressing a view that she would like counsel, would be entitled to it … and I will make an Order that the counsel explore with her the suggestion of an assessment, a psychological assessment. (Transcript, 15 Jan. 2014, p. 8.) [ 7 ] Although Fry J. did acknowledge later “the possibility that children’s views are influenced by one parent or another” (transcript, 1 Jan. 2014, p. 9) she seemed, at least at that point in the proceeding, to feel that appointment of counsel should come first, and that one of the purposes of counsel would be to advise the child as to the appropriateness of undergoing a psychological assessment.

Later, however, she concluded that the assessment should proceed forthwith. The transcript does not indicate any opposition to this by counsel for the mother. Fry J. further decided that an order permitting legal representation for the child was also appropriate.

She linked the two together using the following words: Equally, I am going to make, as part of this order, that should [the child] wish to consult with legal counsel she may do so and her legal counsel may assist her, if she has one, in any way appropriate but she will have the choice to engage legal counsel should she wish to and she will participate in the independent assessment… . (Transcript, 15 Jan. 2014, p. 11.) That portion of Fry J.’s oral reasons found its way into the resulting formal Order as follows: 4.

Should the Child wish to consult with legal counsel then the Child may engage legal counsel. [ 8 ] The mother applied for legal aid for the provision of counsel for the child, but the application was denied on the ground that the parents failed to meet financial eligibility criteria. As a result, no legal counsel was engaged. [ 9 ] Subsequent to the case management meeting with Fry J., the psychological assessment report that she had ordered was filed.

The report expressed the view that the child was “moderately alienated” from her father and that the mother “has engaged in alienating tactics.” It also stated that “the alienation is increasing to the point that it will become severe” and that “the more she is with her mother, the more she rejects her father, and there is now much danger that she will entirely dismiss this relationship.” [ 10 ] The matter came back before another case management judge, LeBlanc J., on April 2, 2014 to deal with a request to set an early trial date on the issue of parental alienation.

At that point, the judge had read the assessment report, but the parties had not yet seen it, it just having been filed. Counsel for the mother advised the Court about the unwillingness of Legal Aid to fund appointment of counsel for the child and inquired as to what other arrangements could be made. He asserted that having counsel would enable the child to make her wishes known to the Court. Noting that he was “very concerned” about the report and its conclusions, LeBlanc J. expressed the view that: The issue of representation of [the child] is not something I’m going to deal with at this stage.

If I decide that it’s appropriate that [the child] be given a voice in this manner , I will find a means by which that can be provided. I’m not willing at this stage to even consider the possibility of appointing counsel for her at this stage. The reasons for that I think will become fairly obvious when counsel receive this report and have it. … I’m going to give the parties an opportunity to review the report, then I will decide how we’re going to proceed from there.

(Transcript, 2 April 2014, pp. 6-7; underlining added.) [ 11 ] LeBlanc J. then adjourned the case management to April 8, 2014. It is not without significance that the judge appeared to link the idea of making counsel available to the idea of ensuring that the child had a voice in the proceeding but left the “manner” by which this would be accomplished to a later date. He also was obviously concerned about the implications of the assessment report for this issue. [ 12 ] On April 8, 2014, Le Blanc J. referred to the report as “an extremely significant development in this case” (transcript, 8 April 2014, p. 1).

Counsel for the mother responded by requesting a second opinion and reiterated his view that the child “should have a voice in this process and that Justice Fry’s Order granting counsel to [the child] if she wants it, should be followed …” (transcript, 8 April 2014, p. 5). Counsel for the father took the position that because of the potential of parental alienation it would not be appropriate for the child to be represented by counsel because the child’s views would be skewed by the alleged alienation if in fact it was occurring.

The judge observed: …there’s no way, shape or form at this stage that it would be appropriate for [the child] either to be spoken to by myself or by a trial judge unless that’s decided later, or alternatively, for her to have counsel. Clearly that would not be appropriate in a case where there’s an allegation that there is a finding of parental alienation for obvious reasons. So no, I don’t accept the fact at this stage that she will have counsel and I guess we’ll wait and see what the second report has to say before a final determination can be made in that regard.

But I can just tell you now that it would not be in the best interest of the child in my view for that to occur, at least with regard to what I have presently before me. (Transcript, 8 April 2014, p. 14; underlining added.) [ 13 ] The case management meeting was further enlarged to April 22, 2014 to determine the status of the second assessment report and to resolve other trial issues. LeBlanc J. then advised the parties that there would be an early trial date and that they would be notified of it.

He also said he would hold a trial readiness inquiry “to make sure that everybody’s ducks are in a row” (transcript, 22 April 2014, p. 6). No further mention was made of appointment of counsel for the child. [ 14 ] The trial was set for June 9, 2014, and a trial readiness inquiry was scheduled for May 21, 2014 “to make sure everybody is ready to go and to have a look at … if there’s any issues that need to be dealt with before the hearing” (transcript, 21 May 2014, p. 1). On the trial readiness date, the mother, represented by new counsel, again raised the issue of separate legal representation for the child.

Counsel asserted that: … there is an Order of the Court in January [Fry J.’s Order], which, from [the mother’s] perspective, procedurally cannot be overruled by a Judge at the same level or the same Court, and so upon that review, my lord, I would submit that we are bound by Justice Fry’s order … [T]he child has strong views, and at 14 years of age, those views certainly deserve consideration by the Court, my lord.

So, that matter must be resolved prior to having a trial on the merits. (Transcript, 21 May 2014, pp. 3-4.) Counsel for the father opposed appointment of counsel on the basis that the child’s views would be tainted by the alleged parental alienation, which had been endorsed in the assessment after Fry J. had made her Order. She also opposed any postponement of the trial. [ 15 ] LeBlanc J. regarded the issue of legal representation as linked to the broader question of how to ensure that the views of the child were brought before the Court.

He ruled as follows: … This is a file that has been before the Court in this Province since 2002… . … [I]t’s incumbent upon the Court to act in the best interests of a child… . The Court has before it, which is presently sealed, a report that, obviously, has caused me a great deal of concern. I am not accepting that the content of that report is true, but I am accepting that there is an allegation here of parental alienation. Parental alienation can have devastating effects on the best interests of children.

If, in fact, it is proven that there has been parental alienation in this case, every expert that I’ve ever heard speak or every psychologist who I’ve heard testify has indicated that it’s important that the issue be explored as quickly as is possible to determine whether or not that alienation is, in fact, in existence. … In this case, it is true that there was a prior Order about representation for the child. She is a 14 year old child and in the normal course of events, obviously, the views of the child are significant. They are not determinative but they are significant and they will be a matter in issue.

In this case, however, I think that the circumstances that present themselves, and the reason why this matter has been set down, basically, overtake, in my view, the need at this stage for counsel for this child. I don’t believe it’s in the best interests of the child, first of all, for her to have counsel and to be here in Court when the Court is determining whether or not in the circumstances, parental alienation is in existence or not and what is in the best interests of the child. That is a matter that will have to be determined subsequently.

I have no doubt that Justice Paquette [the designated trial judge], at some stage, will want to speak to this child or want to have the views of the child explored. Whether she wants to do that by way of an interview herself, or whatever, that is a matter that will be left to her and she may decide, if, in fact she determines that parental alienation is in existence, that there’s no point in having that discussion with the child or having those views presented. (Transcript, 21 May 2014, pp. 7-9.) [ 16 ] LeBlanc J. accordingly refused any delay in the trial.

Counsel for the mother asked that the ruling be put in a formal order. The

judge agreed but commented: … certainly you can but you know, I am ordering that the trial will proceed. That in my view, in the circumstances, at the moment, at least, dealing with the issue of parental alienation, … there’s no need for the child to be represented and it will be up to the trial judge to determine how the views of the child, how, and if, the views of the child will be obtained. (Transcript, 21 May 2014, p. 19.) The resulting formal Order, approved by the judge, simply read: 1. This matter shall be set down for trial commencing June 9, 2014. 2.

Notwithstanding the Order of the Honourable Madam Justice Fry dated January 15, 2014, it is not in the best interests of the child for her to retain her own independent legal counsel to act on her behalf in this matter. [ 17 ] Although the Order on its face appears to deal with legal representation for the whole of the remainder of the case (“in this matter”), it seems apparent from the judge’s remarks in the courtroom that he was only deciding that it was unnecessary for the child to have counsel (as he put it, to have a “voice”) for that part of the trial relating to the issue of parental alienation.

It was that part of the case that was proceeding to trial on June 9. Issues [ 18 ] Whether the second paragraph of the Order can be interpreted as a refusal to implement the previous Order or a purported variation of it, counsel for the mother nevertheless submits that LeBlanc J. had no authority to do so, and that, in fact, he should have ensured that legal counsel was provided before the trial of any issue occurred.

The resolution of these matters involves an analysis of the scope of the powers of a case management judge and a trial readiness judge and, in particular, whether those powers encompass the authority to deal with the issue of legal representation of a child and, if so, for a judge to vary or revoke an order previously made. Analysis (

a) Leave to Appeal [ 19 ] The Order in issue in this appeal is interlocutory in nature because it does not decide the “real matter in dispute between the parties” ( Newfoundland Government Fund Ltd. v. Hickman , 2008 NLCA 56 , 287 Nfld. & P.E.I.R. 13, at paragraph 7 ).

Leave to appeal is therefore required: rule 57.02(1)(a). [ 20 ] In my view, leave is justified because of the importance of resolving the issues presented: whether a case management judge may make an order respecting child representation and, if so, whether a subsequent order can be made by a judge of co-incident jurisdiction revoking or varying the previous order. These issues have not been dealt with by this Court before. Their resolution may be of assistance in clarifying the scope of case management procedures in the family context.

There is also some confusion as to the scope and application of this Court’s decision in Chafe v. Henley , 2003 NLCA 57 , 231 Nfld. & P.E.I.R. 264 which dealt with case management in a different context, as it applies to the current situation. [ 21 ] Accordingly, I would grant leave under rules 57.02(4)(

c) and (e). (

b) Case Management and Trial Readiness [ 22 ] The function of case management is to manage and direct the procedural and other preliminary matters that are necessary to be dealt with prior to trial, exploring as well whether the matter can be settled or at least simplified along the way and, even if not, to ensure the parties are ready for trial. It culminates in discussions about trial readiness.

It usually involves a number of court appearances of the parties and their counsel in the court. [ 23 ] The case management and trial readiness hearings are means whereby the court’s inherent power to control its own process find tangible expression. But they are not the only ways. The inherent jurisdiction to control the process of necessity remains with the judge at all stages of the court process.

The exercise of that inherent power, of course, is constrained at all times by considerations of trial fairness. [ 24 ] Case management and trial readiness are dealt with in the Family Law Rules in the following terms: 56A.21.

(1) After a family law proceeding is started, other than a protective intervention or an interim or interlocutory application, the Registrar shall

schedule a case management meeting to be heard before a judge and the person starting the application shall serve the application on the other parties with a Notice of Case Management in Form 56A.21A.

(2) After the first case management meeting a party to the family law proceeding may obtain a date for a case management meeting from the Registrar and the person requesting the meeting shall serve the other parties with a Notice of Case Management in Form 56A.21A at least 5 days prior to the date scheduled for the meeting.

(3) All parties and counsel shall attend case management meetings, unless a judge has permitted a party or counsel to attend by teleconference or excused a party or counsel from attending.

(4) At a case management meeting the judge, counsel and the parties shall (

a) explore the chances of settling the case;

(

b) identify the issues that are in dispute and those that are not in dispute; (

c) explore ways to resolve the issues that are in dispute; (

d) ensure that relevant evidence is disclosed; (

e) note that it may be possible to simplify the case if the parties admitted certain facts; (

f) set the date for the next step in the case; (

g) have the parties agree to a specific timetable for the steps to be taken in the case before it comes to trial; and (

h) discuss whether a settlement conference is appropriate.

(5) At a case management meeting the judge may (

a) make an order for document disclosure; (

b) make an order for an appraisal of the value of property; (

c) set the times for events in the case or give directions for the next step including follow-up case management meetings; (

d) refer any issue for alternate dispute resolution; (

e) direct an interview of a child; (

f) order psychiatric and psychological assessments; (

g) order home assessments; (

h) order an accounting by a person approved by the Court; (

i) order that the evidence of a witness at trial be given by affidavit; (

j) make any unopposed order or an order on consent; (

k) if notice has been served, make an interim order with the consent of the parties or a final order; (

l) make an order amending pleadings or other documents; (

m) make an order limiting the number of expert witnesses and determining how they may give their evidence; (

n) make an order requiring the parties to make arrangements for expert witnesses to meet, on a without prejudice basis, to determine those matters on which they agree and to identify those matters on which they do not agree; (

o) make an order for directions as to the manner of conducting lengthy and complex trials; (

p) order that a pre-trial or settlement conference be held; (

q) order that examination for discovery be held under rule 56A.35(4); and (

r) make an order that will promote a fair and expeditious resolution of the case. …

(9) Unless otherwise ordered, a party seeking to have a trial date set at a case management meeting shall complete Form 56A.21B and also shall be prepared to discuss each of the matters set out in the form at the case management meeting.

(10) A Notice of Case Management requesting that a trial date be set shall have attached to it a copy of the completed Form 56A.21B when provided to the other parties.

(11) A party who receives a Notice of Case Management requesting a trial date which has a completed Form 56A.21B attached to it shall file his or her own completed Form 56A.21B with the court, provide it to the other parties and be prepared to discuss each of the matters set out in the form at the case management meeting. … 56A.23.

(1) When a party wishes to set a date for a trial or hearing, the party shall contact the Registrar to obtain a date for a case management meeting.

(2) At the case management meeting the judge shall determine whether the parties are ready for trial or a hearing and the Court may make an order described in rule 56A.21(4). …

56A.73.

(1) Where a hearing date has been set, a judge may require the parties to attend a trial readiness inquiry.

(2) At the trial readiness inquiry the parties shall be present along with their counsel, if any, and be prepared to address trial process issues including: (

a) providing the names of all witnesses to be called; (

b) providing a brief description of the testimony expected from each of the witnesses to be called; (

c) providing a full list as well as copies of documents and other exhibits to be tendered at the hearing; (

d) providing an estimate of the time required for each party’s case to be heard; (

e) providing any expert reports to be tendered during the hearing; and (

f) advising whether settlement discussions are occurring and the likelihood as to whether all, or any, issues will be resolved prior to the hearing. …

(3) A trial readiness inquiry shall be scheduled for no more than 30 days before the hearing unless a judge directs otherwise.

(4) Based upon the information provided at a trial readiness inquiry, the judge may adjourn or otherwise vary the dates of the hearing. [ 25 ] It will be seen from these provisions that in addition to attempting to narrow issues and possibly resolve some or all of them, the focus is also on organizing and managing the process towards trial if that becomes necessary because of failure of settlement attempts along the way. Trial readiness considerations are therefore an integral part of the process.

This is specifically reflected in rule 56A.21(10) and (11) (which stipulate the use of the case management process to obtain a trial date), Form 56A.21B (which must be filed when seeking a trial date and which requires the parties to address a host of procedural questions that would have to be settled before the parties could be said to be ready for trial), and rule 56A.23 (which specifically requires the case management judge to determine whether the parties are ready for trial).

The process of case management therefore culminates in setting a trial date after determining the parties are ready to proceed to trial. [ 26 ] The rules also provide for a subsequent “inquiry” with respect to trial readiness within 30 days of a scheduled trial date. However, it is not mandatory in every case. Rule 56A.73 provides that after a trial date has been set a judge may require the parties to attend such an inquiry to address a variety of trial management issues to ensure that the trial runs smoothly.

It also provides an opportunity for a second check on the conclusion the case management judge reached (that the case was trial-ready) at the time he or she set the date for trial. Obviously, events could have occurred since that time which affect the state of trial-readiness. While the rules respecting case management and trial readiness are different, in many respects the trial readiness inquiry, if it is held, is an extension of the case management process. [ 27 ] Nowhere in the foregoing rules is the appointment of counsel for the child explicitly dealt with.

One of the issues presented in this case is whether a judge conducting a case management or trial readiness hearing may nevertheless make such an order. To determine that question it is necessary to consider the scope of a case management or trial readiness hearing, whether during such hearings the inherent jurisdiction of the court to control its own process may also be exercised and, furthermore, whether making a representation order falls within that ambit. [ 28 ] In addition to the above-quoted rules, the following provisions are also relevant: 56A.02. …

(4) Where the practice and procedure in a particular cause or matter cannot be determined, the Court may adopt the practice and procedure that is necessary to permit the cause or matter to proceed.

(5) Family law proceedings will be conducted as informally as the circumstances of the case permit. … [ 29 ] In the context of case management hearings and trial readiness inquiries, these provisions reinforce the idea that case management and trial readiness inquiries are expected to be conducted in a functional and business-like manner and, in the words of rule 56A.02(5), “as informally as the circumstances of the case permit.” [ 30 ] It is clear from the wording of rule 56A.21(4) and (5), set out at paragraph 24, that the case management hearing is designed to enable a judge not only to attempt to resolve the case but to ensure that the parties are working towards being ready for trial.

The scope of the orders that are contemplated, while broad, is not unlimited. For example, in Chafe v. Henley and in McCarthy v. Ivany , 2013 NLCA 38 , 338 Nfld. &. P.E.I.R. 301, which followed Chafe , this Court held that the powers of a case management judge did not extend to making an interim order for child custody or child support without the consent of the parties. Although the wording of the case management rule considered in Chafe has since been modified slightly, the rule’s thrust is still the same.

The Court in Chafe concluded that the wording of what is now rule 56A.21(5)(r), which provides that a case management judge “can make any order that will promote a fair and expeditious resolution of the case,” was not broad enough to allow for an interim non-consensual custody order. The Court reached this conclusion essentially for two reasons. First, by its very nature, a case management hearing is not intended to dispose of the

merits of the litigation but to move the case along to a point where the merits can be litigated. Secondly, the inclusion in the list of ordersthat could be made a reference to making an order on consent suggested that orders respecting child custody that were opposed were notintended to be made. Roberts J.A. explained: [12] Rule 56A.21(3)(

j) and (k) [now rules 56A.21(4)(

j) and (k)] allow for orders, including a final order, providing consent is given. Theresidual power given by rule 56A.21(3)(q) [now rule 56A.21(4)(r)] permitting “an order that will promote a fair and expeditiousresolution of the case” cannot, by definition, order an end to the dispute between the parties, or any part of it, either on an interim or finalbasis. If the dispute were to be disposed of there would be nothing left to promote.

Rule 56A.23(2) which provides that the casemanagement judge “shall determine whether the parties are ready for trial or a hearing and the Court may make an order described inRule 56A.21A(3) [now rule 56A.21(4)]” reinforces this conclusion. (Emphasis in original.) [31] The rationale given in Chafe for limiting the residual clause in Rule 56A.21(4)(

r) does not apply to the current situation. Anorder providing for child representation does not dispose of the merits of the dispute and may certainly be regarded as a type of order thatmay “promote a fair and expeditious resolution of the case.” Furthermore, the absence of any other reference to making a childrepresentation order in the list in Rule 56A.21(4) means that there is no basis for cutting down the scope of clause (

r) by the applicationof the expressio unius canon of

interpretation. The list clearly contemplates that many types of orders that do not bring an end to themerits of the litigation can be made without consent. [32] Can it be said that the broad words of clause (

r) are cut down by some other principle of

interpretation or by reference to theunderlying purpose of the case management rule? The long list of potential orders contained in Rule 56A.21(4) is so diverse that it is notpossible to apply the noscitur a sociis or ejusdem generis canons. There is no single genus or class of order represented by the list whichcan be said to define a limit to the application of clause (

r) except, as described in Chafe, the class of orders that does not dispose of themerits of the litigation. [33] Furthermore, the idea of making an order providing for counsel to represent the interests of an affected child is consistent withcase management’s underlying purposes of resolving preliminary issues and ensuring that the case is prepared for trial. [34] Even more fundamentally, however, the making of a child representation order is integral to the exercise of the parens patriaejurisdiction of the court.

That is a jurisdiction that is not to be cut down or restricted unless there is clear legislative intent to do so: Besonv. Director of Child Welfare (Nfld.), (SCC), [1982] 2 S.C.R. 716; E. (Mrs.) v. Eve, (SCC), [1986] 2S.C.R. 388 at page 420, where LaForest J. wrote: “… the jurisdiction is a carefully guarded one.

The courts will not readily assume thatit has been removed by legislation where a necessity arises to protect a person who cannot protect himself.” [35] The issue of whether the parens patriae jurisdiction of the court continues to operate in the context of case management andtrial readiness hearings was, although argued, left open by the Court in Chafe. In my view, the jurisdiction certainly cannot be cut downby means of procedural rules, which do not define the court’s jurisdiction but merely provide guidelines as to how that jurisdiction is tobe generally exercised.

If the procedural rules do not occupy the whole of the jurisdictional field, that does not mean that they will beallowed to have the effect of preventing the exercise of jurisdiction in other circumstances: Tremblett v. Tremblett, 2013 NLCA 53, 340Nfld. & P.E.I.R. 135 at paragraphs 40-41; Ryan v.

Dew Enterprises Limited, 2014 NLCA 11, 347 Nfld. & P.E.I.R. 274 at paragraph 60.As noted in rule 56A.02(4), “where the practice and procedure in a particular cause or matter cannot be determined, the Court may adoptthe practice and procedure that is necessary to permit the cause or matter to proceed.” [36] The issue of whether a child should have his or her own legal representation can arise at virtually any point in the litigation.Given the emphasis on ensuring that the best interests of the child are protected, there is no reason in principle why the issue could notbe appropriately dealt with at any stage in the process, including at case management or even at a trial readiness inquiry just prior to trial.Clearly, if the circumstances are such that protection of the child’s interests requires appointment of separate counsel even just beforetrial, that is something that can and should be addressed.

I see no reason, therefore, why the necessity of such an appointment could notbe raised during case management or trial readiness discussions. It is integral to the process of managing the case and getting it ready fortrial. [37] It has been suggested that the process of case management is not appropriate to determining the issue of legal representation ofa child and that such an issue should only be dealt with on a formal application brought in applications court outside of the casemanagement process. I disagree.

The prime imperative of ensuring that the best interests of a child, both procedurally and substantively,are advanced dictates that the courts can and should intervene at any stage of the process to appoint counsel for a child if such a step iswarranted. It is true, of course, that considerations of fairness to all parties may, in most cases, require the filing of further documentationand the conduct of a separate hearing to determine the question.

While it may usually be preferable that the issue of legal representationfor a child be dealt with in a separate hearing, the manner of dealing with the issues and the exact procedure to be followed must, in thelast analysis, be determined by the court when the issue arises as the exigencies of the particular case dictate.

As long as the matter canbe dealt with fairly to all concerned, the issue should be dealt with whenever it arises and in whatever forum that is engaged at the time.The fact that in most cases it might be better to deal with the matter outside of the case management process and upon a separateapplication does not mean that there is no jurisdiction to deal with it in an appropriate case as part of the case management or trialreadiness process. [38] Accordingly, I see no reason in principle why the issue of child representation should not be dealt with at case management ortrial readiness inquiries.

Exclusion is not mandated by the express words or any implication from the applicable rules governing casemanagement or trial readiness. [39] It follows that neither Fry J. nor LeBlanc J. was precluded from dealing with the issue of child representation by the simple factthat the issue arose in the context of case management and trial readiness preparation. (

c) Principles applicable to making a Child Representation Order

[40] Many factors may go into a discretionary decision to make or refuse a child representation order. All of them ultimately mustrelate back to a determination as to what is in the best interests of the child: Puszczak v. Puszczak, 2005 ABCA 426, 384 A.R. 57 atparagraph 10. The possibility of parental alienation, while important, is one relevant factor. [41] The ordering of legal representation for a child is, in fact, the exception, rather than the rule.

Such a step is often reserved for“high conflict situations where there is a very real potential that what is in the child’s best interest may not be adequately brought beforea court”: S.H. v. W.H. (1999), (NL SC), 177 Nfld. & P.E.I.R. 273 (NFUFC) at paragraph 37. See also M. (K.A.A.) v.M. (J.M.), 2008 NLUFC 25 at paragraphs 4 and 9; H. (L.M.) v. H. (S.R.), 2010 ABQB 769, 507 A.R. 201 at paragraph 12.

While it ishigh conflict situations where the interests of the child are most likely to be lost from consideration, there may be other circumstanceswhere those interests may also be a casualty of the dispute between the parties. The key point is that it is not the high conflict situationthat in itself triggers the appointment of counsel but the possibility that the child’s interests may be submerged and not given properconsideration in the broader issues that are at stake. [42] That is not to say that there always needs to be a separate voice for the child’s interests.

In most situations, those interests willemerge from the difference in positions advocated by the other parties. In Puszczak, Paperny J.A. observed: [30] It is clear that the wishes of the child are important, although not determinative, provided they are genuine.

Regardless of how thosewishes come before the court, it must be done in a considered manner that affords the child a voice but does not necessarily embroil him[or her] further or exacerbate what is already a high conflict manner. [43] Where the court is persuaded, in the exceptional case, that the child should have some sort of voice independent of the parties,the court should give careful consideration to how that voice should be provided. It does not necessarily have to be by way of legalrepresentation.

As noted in Puszczak at paragraph 10, other methods may be a judicial interview or the appointment of an independentexpert able to ascertain those views. [44] Where the court comes to the conclusion that some form of legal representation of the child is nevertheless necessary ordesirable, consideration must also be given to determining the role of the counsel who is appointed. Broadly speaking, there are threeways in which counsel may act on behalf of a child: as (

i) an advocate, acting, within the parameters of the child’s maturity level, on thechild’s instructions; (ii) a guardian, proposing and acting on his or her perceptions as to what is in the child’s best interests; or (iii) anamicus curiae, acting in a neutral role ensuring that all relevant information is before the court. See the discussion of these issues in M.(K.A.A.), paragraphs 27-31; Puszczak, paragraph 9; David C.

Day, “Counsel for Christopher: Representing an Infant’s Best Interests inthe Supreme Court of Canada” (1983), 33 R.F.L. (2d) 16. [45] The role assigned to counsel in this regard is important because it will effectively define the parameters of and approach to theresponsibility of the counsel throughout the process. It is necessary to ensure that all counsel, the child (if mature enough) and theparents understand this role and responsibility and its limits.

Furthermore, the definition of the role will provide a basis upon which thecourt may assess submissions as the case develops. [46] Some of the considerations which the court should address in appointing legal representation for the child should thereforeinclude: (

a) The age and maturity of the child; (

b) The nature of the issues to be determined; (

c) Whether counsel’s role is to be that of advocate, guardian or amicus; (

d) Whether counsel is to be constrained in any manner by the instructions of the child; (

e) Whether the role is to be limited to simply consulting with and providing the child with advice or some other sort of specificassistance; (

f) Whether the counsel is to be limited in his or her authority to engage in consultations and discussions with the parents and theircounsel; (

g) Whether directions ought to be given as to how the child’s evidence may be presented (by affidavit, reports or orally, etc.); (

h) Whether there should be any limitation on the scope of examination and cross-examination of and on behalf of the child; (

i) Whether experts may be retained; (

j) Who will be appointed, how they will be appointed and who will be responsible for engaging counsel; (

k) Who will be responsible for the cost of counsel; (

l) If consideration is given to appointment of counsel at public expense (e.g. as an amicus), how the views of the Attorney Generalought to be sought. [47] All of these matters may not be able to be definitively determined at the moment when the issue of legal representation is firstconsidered. There may have to be further returns to the issue to better define the process, in the light of other developments.

Theimportant point, however, is that these matters will have to resolved at some appropriate point before the process of appointment can besaid to be completed. [48] Finally, to return to the issue of parental alienation, it is important to remember that where counsel is appointed as an advocate(ordinarily, in the case of an older child), it is necessary “that the child be capable of making reasonable choices and can exercise

judgment without undue adult influence” (Puszczak, paragraph 20). Thus, allegations of parental alienation may be an important factor inthemselves in determining whether the appointment of counsel would be helpful and, if so, in what capacity (Letourneau v. Letourneau,2014 ABCA 156 at paragraph 13). [49] The initial Order made by Fry J. was not appealed. It therefore must stand unless modified or set aside.

In order to determine thecorrectness or appropriateness of LeBlanc J.’s purporting to vary or modify that Order, it is first necessary to consider what it was thatFry J. actually did and then consider whether there is power in a judge of coincident jurisdiction to reverse or modify a previous order. (

d) The Nature of the Order of Fry J. [50] The scope of the Order made by Fry J. was not clearly defined.

The Order simply stated: “Should the Child wish to consult withlegal counsel then the Child may engage legal counsel.” These words unfortunately do not: • indicate the nature of the substantive role to be undertaken by counsel if appointed, i.e. whether the appointed counsel is to act asan advocate, a guardian, or an amicus curiae; • clarify the scope of the appointment, i.e. whether counsel was to act for the child only with respect to advice as to whether thechild should participate in the ordered psychological assessment or participate in the trial of the issues relating to parental alienation oract throughout the remainder of the process, including the trial, on all substantive issues as well as on (or perhaps excluding) the issue ofparental alienation; • clarify the temporal scope of the appointment, i.e. whether it was intended that the child have legal representation thenceforth tothe end of trial of all issues or whether the issue could be revisited at later portions of the proceeding; • indicate how the child was to make her wishes known as to whether she wanted to consult legal counsel, i.e could the mother, whowas alleged to have engaged in parental alienation, speak for the child on this issue and proceed to engage counsel, or would the child’swishes have to be made known through some other more neutral manner; • indicate who was to pay for legal counsel’s services, if engaged, i.e. was one or both of the parents required, without furtherconsideration of the issue, to pay the associated cost if legal aid funding was refused. [51] Knowing just what was intended by the Order that was made is important because it would otherwise be difficult to determinethe effect of the subsequent Order by LeBlanc J.

One has to know what one is modifying or revoking to make sense of the wholeprocess. [52] Some understanding of the judge’s approach to these issues may, to some extent, be gleaned from the comments she made incourt leading up to the making of the Order. They can be used to interpret and give life to the bare words of the Order.

In fact, this Courthas, on appeal, the power to amend the formal Order to ensure that it conforms to the evident intent of the reasons given for the Order,even though the judge in the court below has approved the form of the Order by initialing it in accordance with rule 49.04: Wareham v.Steele (1985), (NL CA), 55 Nfld. & P.E.I.R. 59 (NFCA) and Meadus v. Meadus, 2014 NLCA 17 at paragraph 56. [53] Fry J. at one point appeared to tie the appointment of counsel to advice to the child with respect to participating in the proposedparental alienation assessment.

At another point, she expressed the view that the appointment should happen after the assessment hadbeen concluded. In the end, she purported to make the appointment coincident with the Order for the assessment in more generallanguage (“her legal counsel may assist her … in any way appropriate” (transcript, 15 Jan. 2014, p. 11)). [54] What is clear is that there is nothing in her remarks to indicate that appointment of counsel (in whatever role was contemplated)was intended necessarily to continue in respect of all issues relating to custody in the trial.

Indeed, the permissive language of herremarks, as well as in the formal Order (“should [the child] wish to consult counsel she may do so”; “should the Child wish to consultwith legal counsel then the Child may engage legal counsel”), does not indicate a firm resolve on the part of the judge that it is in thebest interests of the child that she necessarily have legal counsel thenceforward. [55] Furthermore, the language chosen by the judge seems to contemplate that it would be the child’s choice to engage counsel, butthere is no indication as to who, if the child chose private counsel, would pay for those services.

Even though there was discussionbetween the Court and counsel indicating an intention by the mother to approach Legal Aid, this issue did not find its way into thejudge’s disposition. [56] At best, Fry J.’s Order can be said to be inchoate in nature, since it did not purport to define the scope, nature or duration of thecontemplated representation nor the methodology by which the Order was to be implemented.

There would have to have been asubsequent order fleshing out these details before it could have been fully implemented. [57] With respect to methodology of implementation, the mother did approach Legal Aid for appointment of counsel, but thatapplication was rejected. Counsel for the mother did not know where to go from there and asked the Court in the case managementhearing on April 2, 2014 for directions on the matter. Clearly, something further was required.

It could be said, therefore, that the effectof Fry J.’s Order was spent after the initial attempt to obtain legal representation through Legal Aid, as discussed in earlier casemanagement, did not yield results, and that another order would have to be made de novo if legal representation was to be pursued. Even

if it cannot be said that the scope of the Order was limited to having the child represented through Legal Aid, there would clearly have to be other directions given before anything further could be done. (

e) The Effect of the Order of LeBlanc J. [ 58 ] LeBlanc J. regarded the appointment of counsel as a method of allowing the child to have a “voice” in the litigation.

Having expressed his concern about the suggestions of the existence of parental alienation and its possible impact on the ability of the child to exercise an independent choice of legal counsel and to give appropriate instructions, he recognized that there might be other mechanisms, such as judicial interviews and an interview by an independent third party, which could be utilized to allow the views of the child to be heard, if the Court was satisfied that they were not detrimentally affected by any alienation found to exist. [ 59 ] It is also clear that he was of the view that the existence of the report suggesting parental alienation made the circumstances he was facing different from those in existence when Fry J. made the initial Order.

He called it an “extremely significant development.” [ 60 ] It also seems clear that, despite the general language used in the formal Order (“it is not in the best interests of the child for her to retain her own independent legal counsel to act on her behalf in this matter”), LeBlanc J. did not intend to preclude access by the child to legal representation in all circumstances henceforth in the proceeding.

At several points in his remarks, the judge stressed that he was not going to deal with representation “at this stage” and purported to limit his comments to the parental alienation issue (“at the moment at least, dealing with parental alienation, … there’s no need for the child to be represented”).

It is also apparent that LeBlanc J. contemplated the trial judge re-addressing the issue of the child’s “voice” once the trial got underway and the impact of parental alienation, if any, was clearer. [ 61 ] Even if Fry J.’s Order was not fully spent once Legal Aid rejected the application for publicly-funded counsel, it cannot be said that LeBlanc J. purported to revoke the previous Order in the sense of deciding definitively that, contrary to Fry J., for the purposes of the remainder of the case, legal representation for the child was not ever appropriate.

At most, he was purporting to decide that, based on changed circumstances, it was not appropriate to make the appointment in advance of trial on the parental alienation issue at the current time and in the current circumstances. [ 62 ] Applying the principles in Wareham and Meadus, I would amend the formal Order to more properly reflect the apparent intention of LeBlanc J. as disclosed in his oral comments in the transcript. Paragraph 2 should read as follows: 2.

An application for funding of legal counsel for the child having been rejected by the Newfoundland and Labrador Legal Aid Commission, and considering the changes in circumstances since the Order of Madam Justice Fry dated January 15, 2014, it is not in the best interests of the child for independent legal counsel to be appointed to represent her at this time.

The matter of appointment of legal counsel or the application of other means whereby the child may be given a separate voice in the proceeding, in whole or in part, may be revisited on application by a party or on the court’s own motion, by the trial judge. [ 63 ] Before leaving this issue, I would observe in passing that it is important that formal orders be drafted with care to properly reflect the intention of the Court as disclosed in the transcript, in the case of oral judgments, or in written reasons for judgment.

Even if a draft of an order is agreed to by counsel, the judge has the ultimate responsibility to review it to make sure it conforms with the stated intention before it is filed. (

f) The Authority to Vary or Revoke Previous Orders [ 64 ] It now remains to consider counsel for the mother’s submission that LeBlanc J. lacked any authority to revoke or make any variation to the previous Order of Fry J. [ 65 ] Of course, if Fry J.’s Order was spent once Legal Aid rejected the application for counsel, then there was nothing to impede LeBlanc J. from doing what he did.

He would simply have been dealing with a new request as a matter of first impression. [ 66 ] Assuming, however, that Fry J.’s Order was still in effect but in inchoate form and merely a statement of principle, it would also have been open to LeBlanc J. to give further directions to flesh out or give substantive detail to the nature, scope, effect and timing of the original Order.

In essence, that is what LeBlanc J. did (at least in part) by concluding, as a result of the further development regarding the alleged parental alienation, that it would not be appropriate “at this stage” to have the child represented, and that the issue could be revisited by the trial judge at a later stage, possibly after the parental alienation issue was determined. [ 67 ] On the other hand, even if the Order of Fry J. can be regarded as a complete order in itself from which all possible inferences could be drawn as to the nature, scope, effect and timing of the representation Order, I am of the view that LeBlanc J. had the authority to vary or revoke the Order in any event. [ 68 ] The Order in question is an interlocutory order, which does not determine the substantive merits of the custody dispute between the parties but is designed to facilitate that determination.

Case management is a dynamic and evolving process. Many orders of a procedural nature made during that process may well have to be modified or even reversed as the landscape surrounding the eventual trial changes as the parties move closer to trial. [ 69 ] That does not mean all interlocutory orders made in advance of trial have no binding effect or that a dissatisfied party may seek a reversal of such an order by the same or another case management judge without having to appeal formally to the Court of Appeal.

The order is final and irreversible on the basis of the record and circumstances pertaining at the time it was made (except in the limited circumstances where the doctrine of reconsideration applies; see Business Development Bank of Canada v. Noble , 2012 NLTD(G) 173, 331 Nfld. & P.E.I.R. 21 ; Pennecon Energy Ltd. v. Metal World Inc. , 2014 NLCA 10 , 346 Nfld. & P.E.I.R. 302). [ 70 ] But where circumstances change in a material respect that affects the suitability of the previous order with respect to the proper

continuing management of the trial, a case management judge has the authority to reverse or modify the previous order to ensure that it continues to be appropriate for the management of the trial as it is developing. This authority is recognized in rule 15.08(

a) which contemplates a party being able to apply “for the reversal or variation of an order on the ground of a matter arising or discovered subsequent to the making of the order.” (

g) The Exercise of Discretion in this Case [ 71 ] In the current case, it is clear that LeBlanc J. was of the view that the existence of the assessment report raising the possibility of parental alienation affected the appropriateness of making a child representation order, at least until the issue of parental alienation was resolved. As noted previously, he described this as “an extremely significant development,” and that Fry J.’s Order was “overtaken” by the assessment report. This was a sufficiently material circumstance that justified revisiting the original Order that had been made.

He gave plenty of notice to the parties that he was giving consideration to reversing the previous Order; accordingly, they had ample opportunity to make submissions on the point. This is not a case like McCarthy where a decision was made at a case management hearing in circumstances where the affected party had no sufficient notice. [ 72 ] As noted previously, there are many factors that may go into a discretionary decision to make or refuse a child representation order, all directed at determining what is in the best interests of the child.

Although LeBlanc J. did not refer to factors other than the potential impact of parental alienation, it is clear that he properly made his determination by reference to the “best interests” test. In dealing with the matter, he stated at the trial readiness inquiry of May 21, 2014 that it was “incumbent upon the Court to act in the best interests of a child” (transcript, 21 May 2014, p. 7), and the best interest phraseology also made it into the formal Order. [ 73 ] A significant factor that also influenced LeBlanc J. was the urgency of addressing and dealing with the parental alienation issue.

The trial was scheduled 19 days hence. If the Order of Fry J. were to be implemented by detailed directions at that stage, resulting in engagement of counsel, there would inevitably have been a postponement of the trial. That was also a factor that was appropriate to consider when balancing the interests at stake. In light of LeBlanc J.’s view that it was inappropriate to appoint counsel at that stage in any event, the urgency of dealing with the parental alienation issue simply re-enforced the decision not to appoint counsel so as not to derail the rest of the process.

Given the circumstances facing LeBlanc J., it was not unreasonable for him to have dealt with the child representation issue as he did. [ 74 ] Even if one were to interpret rule 57.73 respecting trial readiness as very narrow in scope, permitting only a decision, in the words of subsection (4), to “adjorn” or otherwise vary the date of the hearing,” then LeBlanc J.’s obvious preference not to permit a delay in the hearing would have been a reasonable exercise of his discretion, with the result that no legal representative would be able to act for the child until the trial judge considered the issue further once the trial was underway. [ 75 ] In the circumstances, I was not prepared to interfere with LeBlanc J.’s exercise of discretion.

Summary and Disposition [ 76 ] At the hearing of the appeal, leave to appeal was granted and the appeal was dismissed with no order as to costs. [ 77 ] In arriving at those rulings, my analysis involves the following conclusions: 1. A case management judge and a trial readiness inquiry judge are not precluded from making a child representation order in an appropriate case, but, as a general rule, such an issue will usually be better dealt with by way of a separate application; 2. Fry J.’s Order was not appealed and is therefore not capable of being varied on this appeal; 3.

LeBlanc J., sitting as a case management judge and as a trial readiness inquiry judge, had the jurisdiction and authority to make an order affecting legal representation of the child; 4. LeBlanc J. had the legal authority to revoke or vary the previous Order of Fry J.; 5.

This Court should not interfere with LeBlanc J.’s exercise of discretion in modifying the Order of Fry J. and in declining to delay the scheduled trial date. [ 78 ] Finally, I would reiterate what the panel said at the close of the oral hearing: in light of LeBlanc J.’s concerns about confidentiality relating to the existence of the parental alienation report, no transcript of the proceedings before this Court is to be prepared or distributed except to the trial judge and counsel, without further order of the Court. ______________________________ J. D. Green C.J.N.L.

I concur: ______________________________ B. G. Welsh J.A. I concur: ______________________________ L. R. Hoegg J.A.