Nova Scotia (Community Services) v. D.H., 2012 NSSC 458

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Nova Scotia (Community Services) v. D.H., 2012 NSSC 458 Date: 20121005 Docket: SFHCFSA-080333 Registry: Halifax Between: Minister of Community Services Applicant v. D. H. and V. W. Respondents Editorial Notice Identifying information has been removed from this electronic version of the judgment. Restriction on publication: PUBLISHERS OF THIS CASE PLEASE TAKE NOTE THAT S. 94(1) OF THE CHILDREN AND FAMILY SERVICES ACT , S. N. S., 1990,

CHAPTER 5 APPLIES AND MAY REQUIRE EDITING OF THIS JUDGMENT OR ITS HEADING BEFORE PUBLICATION. SECTION 94(1) PROVIDES: "94(1) NO PERSON SHALL PUBLISH OR MAKE PUBLIC INFORMATION THAT HAS THE EFFECT OF IDENTIFYING A CHILD WHO IS A WITNESS AT OR A PARTICIPANT IN A HEARING OR THE SUBJECT OF A PROCEEDING PURSUANT TO THIS ACT, OR A PARENT OR GUARDIAN, A FOSTER PARENT OR A RELATIVE OF THE CHILD." PUBLISHERS OF THIS CASE FURTHER TAKE NOTE THAT IN ACCORDANCE WITH S. 94(2) NO PERSON SHALL PUBLISH INFORMATION RELATING TO THE CUSTODY, HEALTH AND WELFARE OF THE CHILDREN. Judge: The Honourable Justice R.

James Williams Heard: September 21 and September 24, 2012 in Halifax, Nova Scotia Oral Decision Rendered: October 5, 2012 Edited for Release: June 7, 2013 Counsel: Peter McVey, counsel for the Applicant Glenn Anderson, counsel for the Attorney General Pavel Boubnov, counsel for D. H. V. W., self-represented

By the Court: [1] This is an application brought by D. H. for an order that he be provided state-funded counsel in a child protection proceedinginitiated by the Minister of Community Services of the Province of Nova Scotia. The proceeding is on-going and concerns Mr. H.’children, W. H. (born April [...], 2002), D. H. (born October [...], 2003) and D. H. (born October [...], 2004). In making the application,Mr. H. relies on the case of New Brunswick Minister of Health and Community Services v. G.(J.) (1999) (SCC), 3 S. C.R. 46, a decision of the Supreme Court of Canada.

I will refer to that decision as “G. (J.)” henceforth. [2] Mr. H.’s application is opposed by the Attorney General of the Province of Nova Scotia. The Minister of CommunityServices has taken no position in his application, nor has Mr. H.’s wife, V. W., who is a party to the child protection proceeding. G. (J.) [3] The Supreme Court of Canada in G. (J.) stated: at paragraph 61: I have little doubt that state removal of a child from parental custody pursuant to the state’s parens patriae jurisdiction constitutes aserious interference with the psychological integrity of the parent.

The parental interest in raising and caring for a child is, as LaForest J.held in B. (R.), supra, at para. 83 ‘an individual interest of fundamental importance in our society’. Besides the obvious distress arisingfrom the loss of companionship of the child, direct state interference with the parent-child relationship, through a procedure in which therelationship is subject to state inspection and review, is a gross intrusion into a private and intimate sphere. Further, the parent is oftenstigmatized as ‘unfit’ when relieved of custody.

As an individual’s status as a parent is often fundamental to personal identity, the stigmaand distress resulting from a loss of parental status is a particularly serious consequence of the state’s conduct. [4] At paragraphs 66 and 67: A child custody application is an example of state action which directly engages the justice system and its administration. The FamilyServices Act provides that a judicial hearing must be held in order to determine whether a parent should be relieved of custody of his orher child.

I therefore conclude that the Minister of Health and Community Services’ application to extend the original custody order threatened torestrict the appellant’s right to security of the person. (Referring to s. 7 of the Canadian Charter of Rights and Freedoms). [5] The Court, in G. (J.), was speaking of New Brunswick legislation, and concerned a child protection proceeding similar to theproceeding before this Court.

A child protection hearing, by its nature, is a process, not a singular event. [6] At paragraph 70: ...the principles of fundamental justice in child protection proceedings are both substantive and procedural. The state may only relievea parent of custody when it is necessary to protect the best interests of the child, provided there is a fair procedure for making thisdetermination. [emphasis added]

I note that the Supreme Court of Canada has referred to both substantive and procedural issues in its decision. [ 7 ] At paragraph 55: S. 7 of the Canadian Charter of Rights and Freedoms ‘guarantees every parent the right to a fair hearing when the state seeks to obtain custody of their children’. In certain cases...the parent’s right to a fair hearing requires the government to provide the parent with state- funded counsel.

In saying this, the Court made it very clear that there is no absolute right to state-funded counsel or state-appointed counsel. [ 8 ] At paragraph 103 and 104: As similar cases may arise in the future, I will briefly outline the procedure that should be followed when an unrepresented parent in a custody application seeks state-funded counsel. The judge at the hearing should first inquire as to whether the parent applied for legal aid or any other form of state-funded legal assistance offered by the province.

If the parent has not exhausted all possible avenues for obtaining state-funded legal assistance, the proceedings should be adjourned to give the parent a reasonable time to make the appropriate applications, provided the best interests of the children are not compromised. Child protection proceedings have statutory timelines. Delay is to be avoided.

Delay risks the compromise of child(ren) ’ s best interests. [ 9 ] The Supreme Court of Canada goes on to say, at paragraphs 103 and 104: It goes without saying that if the parent, whether or not he or she is able to pay for a lawyer, chooses not to have one that there will be no entitlement to state-funded legal assistance: see Rowbotham, supra, at p. 64. This is because the parent voluntarily assumes the risk of ineffective representation, for which the government cannot be held responsible.

If the parent wants a lawyer but is unable to afford one, the judge should next consider whether the parent can receive a fair hearing through a consideration of the following criteria: the seriousness of the interests at state, the complexity of the proceedings, and the capacities of the parent. The judge should also bear in mind his or her ability to assist the parent within the limits of the judicial role.

If, after considering these criteria, the judge is not satisfied that the parent can receive a fair hearing and there is no other way to provide the parent with a lawyer (i.e., pursuant to a statutory power to appoint counsel), the judge should order the government to provide the parent with state-funded counsel under s. 24(1) of the Charter . I hasten to add that I am limiting my comments here to child protection proceedings, and need not and should not comment as to other kinds of proceedings. [ 10 ] Ms. W. has chosen to proceed without seeking a G. (J.) order appointing counsel.

CHILD PROTECTION PRODEEDINGS GENERALLY [ 11 ] For parents, child protection proceedings are inevitably adversarial. Children are removed from their care, sometimes temporarily, sometimes permanently. [ 12 ] A child protection proceeding has stages and time lines set out in its legislation (here in Nova Scotia in the Children and Family Services Act ). A first court appearance must occur within days of the child protection proceeding being initiated, an interim hearing must be completed within 30 days of the commencement of the proceeding.

The Court must determine if the children involved are “ in need of protective services ” within 90 days of the proceedings ’ commencement. If the children are not found in need of protective

services, the proceeding ends. If the finding in need of protective services issue is resolved affirmatively, a disposition order will follow within 90 days of that finding. The total length of sequential disposition orders is limited by the legislation, generally to a period of one year for children under twelve. [ 13 ] Child welfare proceedings should move, in relative terms, expeditiously. They are more process than event.

Unlike criminal proceedings where adjournments for months might be acceptable or at least tolerable; child welfare proceedings have at least three imperatives that dictate against delay: statutory time lines; parents who do not want to prolong separation from their children; and thirdly, and most importantly, the proceeding concerns children whose best interests are potentially compromised by delay. [ 14 ] The Minister of Community Services routinely in this Court emphasizes the importance of avoiding delay in child protection proceedings.

In doing so, the Minister is doing little more than responding to the mandate given by the legislation and is appropriate in doing so. [ 15 ] The “ best interests of the child ” and “ protection of children ” are foundation principles in child protection proceedings in this jurisdiction. The Children and Family Services Act

preamble and definition sections mandate that “ the best interests of the child ” principle is fundamental to all decision-making. The purpose of the Act is to protect children. [ 16 ] Delay, simply put, is generally not desirable in child protection proceedings. THIS CHILD PROTECTION PROCEEDING [ 17 ] Kimberley Hankin, a social worker with the Department of Community Services has described the history of this proceeding (in her September 20, 2012 Affidavit) as follows (quoting from her paragraph 8): (

b) On April 5, 2012 the children were taken into the care and custody of the Applicant under the Children and Family Services Act , Section 33(1); (

c) On April 12, 2012 the Minister of Community Services commenced a Child Protection Application alleging the children to be in need of protective services within the meaning of Section 22(2), paragraphs (

b) and (

g) of the Children and Family Services Act ; (

d) On April 16, 2012, the Honourable Justice R. James Williams granted an Interim Order in relation to the Application, providing that the children shall remain in the interim care and custody of the Applicant with provision for access to the children by the Respondents. (

e) On April 27, 2012, the Honourable Justice R. James Williams granted a further Interim Order on the same terms and conditions. (

f) On July 10, 2012, the Child Protection Application was discontinued and a new proceeding was immediately commenced on the same grounds and evidence, by means of a Notice of Child Protection Application and my Affidavit in support both of that date; (

g) On July 10, 2012, the Honourable Justice R. James Williams granted an Interim Order in the new proceeding, providing that the children shall remain in the interim care and custody of the Applicant with provision for access to the children by the Respondents; [ 18 ] Also of concern in July were discussions about and around Mr. H. ’ s expressed desire for counsel. The matter proceeded from there as follows: (

a) July 26, 2012 - Mr. Mancini of Nova Scotia Legal Aid advised the Court that Nova Scotia Legal Aid would provide a limited

certificate for the application for appointment of legal counsel for Mr. H.. The need of protective services issues was adjourned for trial to October 4 and 5, 2012, the outside date for that decision being under the legislative mandate being October 8, 2012. (

b) August 17, 2012 - Counsel for the Attorney General was present. Mr. Boubnov, counsel for Mr. H. on the application for appointment of legal counsel, appeared for the first time. He requested time to file the application and supporting documentation as he had been recently retained. He was directed to do so by September 12, less than a month thereafter, with the Attorney General to reply by September 19. A hearing date was set for September 21, 2012. [ 19 ] Ms.

W., step-mother of the children, indicated that she was prepared to proceed without counsel and that she may receive help from her mother to get counsel. The Court advised her that if she was making an application for the appointment of counsel to do so by September 12. No such application was or has been made to this Court, nor was there any expression that she desired to do so. (

c) September 21 - The hearing of Mr. H. ’ s application to have a court-appointed counsel proceeded. Evidence was heard from Mr. H.. The matter was adjourned to September 24, 2012 for submissions. (

d) September 24 - Submissions were made by counsel. This Court, of its own motion, stayed the child welfare proceeding to November 6 and 7, 2012, concluding that the best interests of the children in these circumstances lie in first having a resolution of the issue of their father ’ s request for appointed legal counsel (and giving this Court time to make a decision). A practical reality was that with the time frames we had, whether the Court ’ s decision was that Mr. H. have counsel or not have counsel, time was going to be required to prepare for the in need of protective services trial.

In the circumstances, I felt I had no alternative but to stay the proceeding and secure that time. [ 20 ] The original child protection proceeding was commenced April 5, 2012 and discontinued July 10, 2012, with a new proceeding initiated on July 10, 2012. This “ rollover ” , as referred to in the child protection community, was done with the consent of all parties and done essentially to extend the permitted time lines under the legislation while the Court, and I believe to some extent the agency, struggled with Mr. H. ’ expressed desire to have legal counsel. Two factors contributed to this delay: 1. Mr.

H. ’ s application to legal aid and the appeal of the denial of his application took some time. This process appeared to proceed in a reasonable fashion but, as I say, simply took some time. 2.

The systemic starting point or assumption, however tenuous, that a self-represented parent is capable on their own (or even with the assistance of the Court or counsel for the agency) of organizing and taking the legal, procedural and evidentiary steps necessary to make an application to the Court for appointment of state counsel for them, was being struggled with. [ 21 ] Here Nova Scotia Legal Aid eventually stepped up and provided a limited certificate that allowed Mr. Boubnov to act as counsel for Mr. H. on the application for the appointment of legal counsel.

Getting to that point took some time. [ 22 ] I applaud Nova Scotia Legal Aid for responding to this situation and providing the limited purpose funding for a certificate for counsel to act for Mr. H. in the application now before the Court. [ 23 ] I note that there is some irony in the view that a self-represented person can or should make an application for the appointment of legal counsel (pursuant to constitutional remedies available to them as a result of the G. (J.) case) without legal counsel. [ 24 ] Applications for state-funded counsel in child protection matters are, at least in this Court, rare.

That said, child protection proceedings are important enough and delay enough of a concern for there to be a need to attempt to expedite these applications should, or when, they occur again. [ 25 ] One option might be for the Court to attempt to facilitate matters by offering, through a judge not hearing the matter, to put counsel for the Attorney General, the agency, a representative of Legal Aid, and a self-represented individual into a settlement-like

discussion to make arrangements to address the issue of getting counsel to make the application for appointment of counsel quickly and expeditiously at the start of the proceedings. In hindsight, I should have aggressively explored that here.

I did not. [ 26 ] Another possible process would be for the Attorney General ’ s office to arrange, even if it was on a trial basis, with Legal Aid to fund counsel for these applications in child protection matters, subject to whatever arrangements with the individual (including repayment plans) are reasonable. [ 27 ] I make these observations because the time lines in child protection proceedings simply do not fit a model where these applications can be delayed and repeatedly set over.

The interests of children as defined in the Children and Family Services Act are not a fit with a process that would have a self-represented person make a G. (J.) application on their own. If self-represented parties are left to make applications on their own, inevitably the evidence and pleadings will be inadequate. One of the options normally available to a Court with self-represented individuals is to adjourn and give them time to, if not perfect, to improve their application or documentation. Such delay is contrary to the very legislative mandate the child protection proceeding lies within.

Indeed even here counsel for the Attorney General suggested at various points in his brief that the application is pre-mature, that the matter should be adjourned for Mr. H. to give additional evidence or provide additional information about his finances, or attempt to refinance or reorganize his finances. Systemically we should be making every attempt to avoid unnecessary delay. [ 28 ] The Attorney-General for Nova Scotia has filed a very thorough Brief. He asserts that the process or analysis in this application should be as follows: 1.

Inquiry #1 - Has the parent exhausted all possible avenues for obtaining state-funded legal assistance, i.e. legal aid. If the answer is “ yes ” , then: 2. Inquiry #2 - Is the parent unable to afford a lawyer? If the answer is that he cannot, then: 3. Inquiry #3 - Can the parent receive a fair hearing without a lawyer?

In considering this, the Court should consider: a. the seriousness of the interests at stake; b. the complexity of the proceedings; c. the capacities of the parent; d. the ability of the Court, the Judge, to assist the parent within the boundaries of the judicial role. [ 29 ] In his Brief, counsel for the Attorney General of Nova Scotia, also states: In G.(J.) the Chief Justice tied the entitlement to state-funded counsel to the necessity of counsel for a fair hearing...

And quotes from paragraph 107 of G. (J.) : ...s. 7 should not be interpreted as providing an absolute right to state-funded counsel at all hearings where an individual’s life, liberty and security of the person is at stake and the individual cannot afford a lawyer...a limited right to state-funded counsel arises under s. 7 to ensure a fair hearing in the circumstances I have outlined.

I agree. I also agree that the burden of proof is on Mr. H. in an application such as this. I note also that applications such as this are very fact and situation specific. INQUIRY #1 - HAS MR. H. EXHAUSTED ALL POSSIBLE AVENUE FOR OBTAINING STATE-FUNDED LEGAL ASSISTANCE, I.E., LEGAL AID? [ 30 ] Mr. H. applied to Nova Scotia Legal Aid. His application was denied. He appealed the decision. His appeal was denied. The Attorney General of Nova Scotia acknowledges that Mr. H. has exhausted all possible avenues for obtaining state-funded legal aid. INQUIRY #2 - HAS MR. H.

SHOWN THAT HE IS UNABLE TO AFFORD A LAWYER? [ 31 ] The cost of legal services has been the subject of comment by the Chief Justice of Canada in various contexts, including the media and more formal speeches. Mr. H. must demonstrate that he is unable, in his particular circumstances, which include the circumstances of the legal process he is involved in, to afford a lawyer. He must demonstrate that he lacks the financial resources to retain a lawyer. A. Financial Circumstances: [ 32 ] Mr. H. ’ financial circumstances must be examined. Mr. H. is employed full time.

His monthly income is $5,853.50, or approximately $70,242.00 a year. His statement of expenses has been filed. It notes expenses as follows: Rent $775.00 Insurance 20.00 Electricity 60.00 Telephone, internet, cable 190.00 Food 400.00 Toiletries 50.00 Clothing 25.00 Laundry, Cleaning 50.00 Motor Vehicle 532.00 Gas 300.00 Maintenance 45.00 Insurance, Licencing, Registration and Inspection 100.00 Parking and Tolls 20.00 Child access 50.00 (Part of this relates to access he is exercising to his step-child who is in [...]) Drugs 40.00 Dental 30.00

Christmas/events 50.00 Entertainment 15.00 Savings 50.00 [...] 460.00 Storage (related to the apartment they are in) 35.00 Total: $3,297.00 Source Deductions: CPP 290.93 EI 112.90 Pension 636.15 Medical 4.00 Disability/Death Benefits 42.84 Tax 1,469.68 Taking Mr. H. ’ s numbers, his expenses and income are a virtual wash. [ 33 ] Mr. Anderson, on behalf of the Attorney General of Nova Scotia, identified surplus income, including the following: - $50.00 a month in savings; - some monies which Mr.

Anderson is not specific on, but which could be identified as recoverable through the cable, telephone and internet bundle of expenses of $190.00 a month. Mr. Anderson asserts that this could be reduced by an undetermined amount. - $400.00 for the months of October, November and December 2012 arising from the fact that Mr. H. ’ s yearly CPP and EI deductions were completed for the 2012 tax year by mid-September, according to Mr.

H. ’ s oral evidence, meaning that the monthly attribution of expense to those items would not exist for October, November and December; - $532.00 plus - insurance, gas and repairs for Mr. H. ’ s vehicle. The bulk of this is the $532.00 on Mr. H. ’ s car loan. Mr. H. ’ s evidence is that this is a seven-year loan that now has just under $30,000.00 owing. The loan is secured on the vehicle which is valued considerably under this amount. The evidence before me indicates Mr. H. has not attempted to renegotiate this loan as the vehicle is valued at far less than the amount of the loan. It is a [...]. Mr.

H. indicates the Canadian Black Book value is $14,150.00 as of June 28, 2012. The evidence also indicates that the loan was for more than simply this vehicle as a loan in relation to his previous wife ’ s car, which was sold in the spring of 2011, was consolidated into this loan in early 2011. - Finally there are monies available from the budgeted [...] item. The [...] debt is reduced by about $210.00 as of September 2012. This is a payment on time for items purchased at [...] through the [...]. The current amount being paid is now (as of September 2012) reduced to $247.00 a month, not the $460.00 a month in Mr.

H. ’ s budget. This amount will be repaid by May 2013. [ 34 ] I note, then, that Mr. Anderson has demonstrated that Mr. H. has monies available as of September 2012. Monies that Mr. H. could reasonably be expected to use to pay for legal counsel, then, could arguably include:

$50.00 from savings 25.00-50.00 for cable, internet and telephone 210.00 a month for [...] $285.00-$310.00 a month [ 35 ] For the months of October, November and December there is also the monies from Canada Pension and Employment Insurance (up to $400.00 per month). [ 36 ] Mr.

H. has testified that he has at least four debts that are either in collection or not being paid: - a Toronto Dominion Bank loan of $10,259.86; - a Rogers account of $3,006.56; - a Halifax Water Commission account of $497.76; and - a Nova Scotia Power Account of $1,033.27. [ 37 ] It would appear that his current water, power, phone/internet arrangements are either paid for through his rent or with an alternate provider after one provider has either cut off services or demanded payment, or that the service is in the name of his wife, V. W.. B. Assets: [ 38 ] Mr.

H. has no assets of any value apart from the motor vehicle which has been mentioned. He has three bank accounts and indicates the total deposited in these accounts as of September 12, 2012 is $109.83. [ 39 ] Counsellors at Mr. H. ’ s place of employment, [...] (he says) have recommended that he not borrow additional funds. There is no evidence that identifies an asset that could be borrowed against by Mr. H.. [ 40 ] Mr. H. did receive an income tax refund of some $3,400.00 in March of 2012. That was before this proceeding was initiated.

He testified that this money was spent before the commencement of the proceeding. It is unclear whether he will receive such a refund for the 2012 taxation year. The Court does not have information about the tax treatment that will be given the children (who have been in the care of the Department of Community Services since before the start of this proceeding). I do not know what the Department of Community Services ’ position would be. Simply put, I do not have the evidence to say he will or will not get an income tax refund for his 2012 tax year. C. Borrowing: [ 41 ] Mr. H. states he has no ability to borrow.

There is little reason to doubt this given the financial circumstances put before the Court. He has no credit cards.

[ 42 ] Counsel for the Attorney General has, with respect to various aspects of Mr. H. ’ evidence, suggested that there is no documentation, or that there should be additional documentation. I found Mr. H. ’ s evidence concerning his financial circumstances to be straight forward. I accept it. Delaying the proceeding to request additional information or documentation from Mr. H. is not necessary or appropriate given the nature of the proceeding before the Court. D. Retaining a Lawyer: [ 43 ] Mr.

H. ’ s evidence is that he has approached a number of law firms, all of whom have requested retainers of $2,000.00 to $10,000.00. Mr. H. testified (in answer to questions from his counsel): Q. Mr. H., how many lawyers did you call to? A. I lost track. Mr. Mancini gave me a list of all the legal aid lawyers. I’ve also tried searching on line and going through the phone book to contact different firms. The list I provided was a very abbreviated one. Most of the firms that I contacted I wasn’t able to speak to a lawyer directly but I got some information from the receptionists. But I honestly lost track.

I would say easily two dozen. Q. Okay. And when you talked to these lawyers, did you ask for estimate of the potential legal costs? A. Not the potential, just what they required for a retainer. Some of them were kind enough to tell me they required multi-thousand dollar retainer, as well as what their hourly rate would be, um, but not what their potential costs would be given the complexity of the case. Q. And how much were the lawyers you talked to charging hourly rate? A. Um, the retainers were between two and ten thousand dollars. Well beyond my savings, and their hourly rate ranged from $125.00 to $350.00. Q.

So the minimal hourly rate was $125.00 an hour. A. Yes. Q. And were you provided any estimate how many hours it may require for a lawyer to work on the case? A. No. Given the, I just, what I did by phone was contact the lawyers and explain the complexities of the case and some of them refused completely given the time frame to take the case; others would just provide a hourly rates and retainers fees. Q. And the retainer fees, just for the clarity - it’s what you have to pay right up front. A. Yes.

That’s what they would require before I was even able to, before they would even agree to take my case, and then assuming they burned through that amount of money, they would be requiring more to continue. [ 44 ] Mr. Anderson, on behalf of the Attorney-General, asked: Q. When did you make these calls to the lawyers? A. I made some in June, I made some in July. I made a number of them in September. Q. So “in September” meaning within the last two days? A. Meaning between August 15 th at the time my application went in.

I’ve made additional calls since then trying to find lawyers who would be able to take a case on such short notice given the complexities and trying to find it... One of my questions specifically were if I was granted state-funded counsel, would they be willing to take my case. And, surprisingly, even as state-funded counsel, they still said “no”. It’s the amount of time remaining and the complexities that they’re, I guess I don’t want to say “unwilling”, but they’re, ah, worried because of the amount of work that would be required in such a short amount of time. Q.

And did you approach Bacchus and Associates to see if they were willing to be representing you? A. I’m sure I must have.

[ 45 ] I note that Bacchus and Associates is referred to in the list (of law firms) that Mr. H. filed - firms he spoke to. [ 46 ] Counsel for the Attorney General also asked Mr. H. whether he (Mr. H.) asked lawyers if they would act for him based on the legal aid tariff rates of $60.00 or $70.00 an hour. Mr. H. indicated that he did not know what the legal aid fees tariff was so did not ask about that. He did indicate: Unfortunately there was only one law office that I contacted who would say directly that they do accept legal aid certificates.

Most of the lawyers I spoke with requested a retainer... [ 47 ] He provided a list of some of the law firms he contacted and the retainers requested. E. Has Mr. H. Shown That He Cannot Afford a Lawyer? [ 48 ] Mr. H. does not have the resources to pay a retainer. He does not appear to have the capacity to borrow. He has monthly discretionary monies but not enough to gather a retainer in a timely fashion.

This matter is proceeding on November 6 and 7, 2012. [ 49 ] I do not conclude that it would be appropriate for the Court to examine his resources retrospectively and say, for example, “ if you had not spent your tax refund in March, you could do this ” . That occurred before this proceeding was initiated. In my view, the question before the Court is “ can he afford a lawyer? ” - at this point in time, for the proceeding that is now before the Court (a proceeding that has been adjourned once with a rollover, once with a stay and that has legislated mandates to go forward). [ 50 ] With respect to Mr.

H. ’ s ability to borrow, counsel for the Attorney General suggested that Mr. H. had not provided documentation demonstrating an inability to borrow, showing he was “ turned down ” . Mr. H. says he cannot borrow. He says family cannot help him. He has no unencumbered assets. He has no credit cards. He has a number of debts in collection. I accept Mr. H. ’ s evidence that he cannot borrow. [ 51 ] This is not to say that someone in different circumstances would not be expected to demonstrate an attempt to borrow beyond what Mr.

H. has stated. [ 52 ] Counsel for the Attorney General also suggests (concerning evaluation of Mr. H. ’ ability to afford legal counsel) that the Court consider: 1. If a person could manage his financial affairs to secure legal counsel, the application for state-funded counsel should be dismissed (referring to R.F. v. T.T., 2006 YKTC, 57 ). There the Court concluded that the parent could retain counsel and could adequately represent himself. Mr. H. might be expected to manage his money and retain counsel if the child protection proceeding was four to six months from now. It is not. It is one month from now.

He lacks the resources to retain counsel now. Even if he retained counsel now, that counsel will need time to prepare. 2. That Nova Scotia Legal Aid Financial Guidelines should be considered. Legal Aid ineligibility is not a determination that somebody can afford counsel. Chief Justice McLachlin of the Supreme Court of Canada has noted in speeches that some who cannot afford counsel are not eligible for legal aid. This Court experiences and observes that circumstance on a daily basis. The cost of legal services is an ongoing Access to Justice issue. 3.

Counsel for the Attorney General also refers to the Child Support Guidelines , saying that if Mr. H. was ordered to pay child support under the Guidelines , the amount would be $1,275.00 a month for three children. The Child Support Guidelines have no regard to expense and debt. They are simply a table based on income. There is no such regime in place for G. (J.) applications and, in fact, G. (J.) applications specifically contemplate consideration of the affordability of legal counsel.

4. Reference to average salaries or wages in Nova Scotia was also made by the Attorney General ’ s counsel. I am uncertain of the relevance beyond a very broad contextual view. Mr. H. ’ salary exceeds that of many, many Nova Scotians. The issue, though, is whether he, in these circumstances, can afford legal counsel. 5. Finally, reference was made by counsel for the Attorney General to the issue of “ willingness to sacrifice ” as a principle. It is a principle that arises in Rowbotham applications. R. v. Drury , 2000 Man. C. A. 100 speaks of people reworking priorities. The reworking of priorities takes time.

The time frames this Court faces with this child protection proceeding are, in a word, tight. Counsel, if they were to be in place for Mr. H. for early November trial dates, need to be retained immediately. It is difficult to identify a sacrifice or prioritization or a reworking of priorities that Mr. H. could make now that would allow him to retain counsel immediately. It is reasonable to expect him to make some sacrifice to secure and maintain counsel. I will address that later.

I agree that the “ willingness to sacrifice ” principle is of some relevance in G. (J.) applications, as it is in Rowbotham applications. The principles are analogous - they are not the same. The time frames that proceedings must take place within are entirely different in a child protection and criminal law contexts. [ 53 ] Timing is an issue. This is a child protection proceeding. Statutory time lines and mandates dictate that the matter proceed as soon as possible. [ 54 ] Can Mr. H. afford a lawyer for this proceeding now?

I conclude that he cannot. [ 55 ] Could he, if directed to save for four to five months do so? Perhaps “ yes ” . [ 56 ] Could he now borrow monies and retain a lawyer? Based on the evidence that I have before me I must conclude “ no ” . [ 57 ] Is it reasonable for lawyers to want a retainer, even a significant retainer from Mr. H. given his financial circumstances and the nature of this proceeding? In a word, “ yes ” . [ 58 ] I conclude that with respect to the child protection proceeding before this Court and scheduled to proceed on November 6 and 7, 2012 and beyond, that Mr.

H. has proven that he cannot afford to retain a lawyer to prepare and appear in November 2012. INQUIRY #3 - A. THE SERIOUSNESS OF THE INTERESTS AT STAKE [ 59 ] Mr. H. ’ s children are in the temporary care of the Department of Community Services. The seriousness of such child protection proceedings has been noted by the Supreme Court of Canada. [ 60 ] This proceeding has additional context. [...]. The Affidavit of Kimberley Hankin of the Department of Community Services of April 12, 2012 states: 80. [...] 85. [...] 86. [...]

S. P. is not a child before this Court and is, I believe, the child of V. W.. 87. [...] 88. [...] 91. On January 9, 2012, the Agency received the additional referral information from the Halifax Regional Police described above alleging verbal, emotional, and possible physical abuse of the children within the home, [...] [ 61 ] What followed were voluntary arrangements for the children to go into temporary care. Ultimately, in April 2012, this proceeding was initiated. [ 62 ] This child protection proceeding concerns Mr. H. ’ s children. It is serious in and of itself. [...].

I have no difficulty in concluding that the issues before the Court are serious. For Mr. H., his actions, statements and submissions in this proceeding have at least the potential of having implications well beyond this proceeding [...] INQUIRY #3 - B. THE COMPLEXITY OF THE PROCEEDINGS [ 63 ] The proceeding is very complex. I conclude this, considering: 1. It is a child protection proceeding involving stages, time lines, steps and statutory language that has a legal context that is not necessarily consistent with everyday language usage. From Mr.

H. ’ s point of view, this adds to the complexity of the proceeding. For example, the issue of whether a child is in need of protective services has significance beyond the everyday usage of the phrase “ in need of protection ” or “ in need of protective services ” . A finding that a child is in need of protective services is a necessary step to further stages of a proceeding - a necessary step that, if taken, may lead to an application for permanent care and custody of the children. 2. The allegation here is that the children are in need of protective services pursuant to s. 22(2)(

b) and s. 22(2)(

g) of the Children and Family Services Act . Those sections read as follows: S. 22(2) A child is in need of protective services where: (

b) there is a substantial risk that the child will suffer physical harm inflicted or caused as described in clause (a); Clause (

a) states: the child has suffered physical harm, inflicted by a parent or guardian of the child or caused by the failure of a parent or guardian to supervise and protect the child adequately; S. 22(2) A child is in need of protective services where: (

g) there is a substantial risk that the child will suffer emotional harm of the kind described in clause (f), and the parent or guardian does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm; Clause (

f) states: the child has suffered emotional harm, demonstrated by severe anxiety, depression, withdrawal, or self-destructive or aggressive behaviour and the child’s parent or guardian does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm; “ Substantial risk ” is a phrase which is statutorily defined. 3. The record suggests that the evidence put forward by the Department of Community Services on the hearing to be held November

6 and 7, 2012 next will or could include: (

A) portions of electronic intercepts and recordings of Mr. H. and his family [...] (

B) out of court statements of young children, including one child (S.) who is not the subject of these proceedings. These statements appear to have been taken in a fashion where they were not recorded. (

C) evidence which may or may not be put forward as expert evidence arising from play, [...] or other therapy the children are now involved in. Special legal rules or principles apply to each of these areas - electronic intercepts, child hearsay, expert evidence and, in the absence of expert evidence, the limits of lay opinion. 4. The agency seeks an order pursuant to s. 96(1)(

a) of the Children and Family Services Act essentially asking that the record and evidence from two previous legal proceedings - one of which concerned Mr. H. and these children, one of which did not but involved his current partner, V. W., and her child, S. P. - be incorporated into these proceedings. The details of those other proceedings have not yet been put before this Court. The evidence called, who was represented or not and so on are not before this Court at this point. Again, there are special legal rules that apply to applications such as this. 5. The agency has spoken to Mr. H. and his partner, V. W., asking them to participate in: (

A) a parenting capacity assessment; (

B) a psychiatric assessment. Mr. H. and Ms. W., according to Ms. Hankin ’ s Affidavit of September 20, 2012, said they wished to consult with a lawyer before addressing the agency request. As a result of the unresolved status of Mr. H. ’ s application for legal counsel, the agency states “ it has not sought a ruling on the request ” . This is at paragraph 7 of her Affidavit. In stating that it has not yet sought such a ruling, it is reasonable to anticipate that the agency may well seek such a ruling. 6. All of the above must be seen in the context of the agency asserting that Mr.

H. and his partner are [...]. [...] [ 64 ] This proceeding is, in my view, extraordinarily complex. INQUIRY #3 - C. THE CAPACITIES OF THE PARENT [ 65 ] Mr. H. has a non-academic Grade 12. Counsel for the Attorney General of Nova Scotia has asserted that: Mr. H. is capable of representing himself, with the assistance of, if required, and the accommodation of the judge within the limits of the judicial role. [ 66 ] Mr. H., in his Affidavit of September 11, 2012 states (at paragraph 14):

14. I feel the complexity of the current proceedings is beyond my education and intellectual capacity. He states that he in a previous private custody dispute acted for himself and ...it did not work well. I had trouble advancing my arguments and cross-examining witnesses. [ 67 ] I conclude that Mr. H., considering his education, experience with the Courts, intellect, the seriousness of the issues and the complexity of the proceeding, lacks the capacity to act for himself. [ 68 ] Counsel for the Attorney General also states of V. W., Mr. H. ’ wife: It is understood that Ms.

W. will be representing herself during the proceeding and anticipated that the judge will be assisting and accommodating her within the limits of the judicial role. The same assistance and accommodation can be provided to Mr. H.. [ 69 ] Ms. W. has not brought an application for the appointment of counsel. She has chosen, apparently, to act on her own. Mr. H. has not. He seeks legal counsel. The submission with respect to Ms. W. is of little relevance. INQUIRY #3 - D.

THE ABILITY OF THE COURT, THE JUDGE, TO ASSIST THE PARENT WITHIN THE BOUNDARIES OF THE JUDICIAL ROLE [ 70 ] The issue of judicial assistance to self-represented individuals has been addressed by the Canadian Judicial Council. In 2006, the Canadian Judicial Council adopted a Statement of Principles on Self-represented Litigants and Accused Persons.

The Statement of Principles advises judges that in order to protect a self-represented litigants ’ “ equal right to be heard ” , the Judge may: a. explain the process; b. inquire whether both parties understand the process and the procedure; c. make referrals to agencies able to assist the litigant in the preparation of the case; d. provide information about the law and evidentiary requirements; e. modify the traditional order of taking evidence; and f. question witnesses. [ 71 ] The Statement of Principles also lays out additional duties for the judiciary: 1.

Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices. 2. In appropriate circumstances, judges should consider providing self-represented persons with information to assist them in understanding and asserting their rights, or to raise arguments before the court. 3.

Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons. 4. The judiciary should engage in dialogues with legal professional associations, court administrators, government and legal aid organizations in an effort to design and provide for programs to assist self-represented persons.

[ 72 ] As noted earlier, the Supreme Court of Canada has stated that “ ..the principles of fundamental justice in child protection proceedings are both substantive and procedural ” (para. 70 of G. (J.) ). This proceeding has many substantive and evidentiary issues. It is one thing for a judge to help a litigant with procedural matters; another to provide advice on evidentiary or substantive issues. [ 73 ] Goldschmidt, in his

article “ Judicial Assistance to Self-Represented Litigants: Lessons from the Canadian Experience ” (2009) 17 Mich. State Law Review 601, outlines some of countless factors that might be considered when questions of when and how far a judge can go in assisting a self-represented litigant. They include: - is the judge to provide information or legal advice? - the nature of the case - how serious is it? - the context - is it an individual piece of assistance, e.g. an accommodation on a pleading, an adjournment, or something more? [ 74 ] These factors run together somewhat.

Here, however, it appears that the case to be put forward by the Department of Community Services is to a significant extent built on [...] and upon out of court statements made by children and adults. I do not suggest that this is the only evidence that will be led by the agency, but it forms a substantial part of the agency case that is now before the Court. [ 75 ] The assistance Mr. H. reasonably requires includes, in my view, advice concerning the rules of evidence and admissibility, and the implications of actions in this proceeding may have [...].

His need for assistance here goes far beyond providing information about what forms to fill out, documents to file, basic evidentiary rules. It involves very serious circumstances and relates to assistance over an entire hearing and beyond. This is not merely a situation where he needs help framing questions, completing documentation or an adjournment to accommodate. He needs assistance with substantive and evidentiary issues. He needs legal advice. [ 76 ] I conclude the assistance required by Mr. H. goes beyond that which this judge could or should attempt to provide where there is an alternative.

Fairness, as the Supreme Court of Canada has indicated, has procedural and substantive requirements. The substantive and evidentiary requirements in this situation go beyond what the Court should attempt to provide. [ 77 ] I note the caution expressed by the Manitoba Court of Appeal in A.(J.M.) v. Winnipeg Child & Family Services 2004 CarswellMan 522 , at paragraphs 38 to 40 where they state: In other words, a judge must not appear to assume the role of counsel for the unrepresented litigant.

A trial judge should not be required to instruct a litigant on the nuances and subtleties of an extremely complicated body of knowledge. [ 78 ] The evidentiary issues in this case are similarly complicated. [ 79 ] In the case before the Manitoba Court, they said: What the mother in reality is complaining about is not the failure of the trial judge to assist her in an understanding and even-handed way, but rather the fact that he did not provide her during the course of the lengthy trial with substantive legal advice and guidance to advance her position.

The authorities just reviewed all support the conclusion that no judge can assist an unrepresented litigant in this way and at the same time maintain the essential appearance and reality of impartiality that is a core precept of the judicial function. [ 80 ] I believe that this view applies to the situation before me at this time.

[ 81 ] I conclude that Mr. H. cannot afford counsel for the child protection hearing that will proceed on November 6 and 7 next and possibly beyond that date. I conclude, considering the seriousness of the interests at stake in this and possible other future legal proceedings, the complexity of the proceedings, Mr. H. ’ s personal capacity and the limited assistance a Judge can provide a self- represented litigant within the limits of the judicial role, that Mr. H. would not receive a fair hearing without counsel. I can identify no other way to provide Mr.

H. with counsel but to order that the Attorney General of Nova Scotia do so. [ 82 ] Counsel for the Attorney General has stated that an order for state-funded counsel is an order that the Attorney General provide funding for a lawyer. Unless otherwise ordered, such an order obliges the Attorney General to provide funding on the same basis as set out in legal aid policy - a set hourly rate and a set number of hours. That is the submission of the Attorney General.

To the extent that the Attorney General ’ s submission is that the Court should attempt to avoid becoming involved in dictating what an hourly rate should be or what the specifics of a specific retainer should be, I agree that the Court should at least at an initial point not get so involved unless necessary. I leave those arrangements to the Attorney General and Mr. H.. [ 83 ] I observe though that it would not be unreasonable, in my view, for the Attorney-General to enter an arrangement with Mr. H. to provide that Mr. H. pay for such legal services over a period of time, it appearing that Mr.

H. could reasonably be expected to contribute to such costs at a rate of $300.00 to $400.00 per month (or perhaps more for the months of October, November and December of 2012) and $200.00 to $300.00 per month thereafter. It would also be reasonable to expect that an arrangement include that the Attorney General ’ s office be paid a percentage of any tax refund Mr. H. might receive for the 2012 taxation year. Such arrangements would, in my view, give effect to the “ willingness to sacrifice ” principle referred to. [ 84 ] I make these observations having been advised by Mr.

Mancini, who appeared from Legal Aid, that such arrangements are from time to time done by Nova Scotia Legal Aid and being of the view that the arrangements for counsel (once an order is made for the Attorney General ’ s office to appoint counsel for Mr. H.) are at least initially for the Attorney General and Mr. H. to independently work out, negotiate. This must be done extremely quickly.

I have commented on more than one occasion on the time lines in the Children and Family Services Act and the unique demands and mandate that that places on the Court and, for that matter, the Department of Community Services, Mr. H. and Ms. W.. J. S. C. (F. D.) Halifax, Nova Scotia