P.B. v. Nova Scotia (Community Services), 2014 NSSC 182

IN THE SUPREME COURT OF NOVA SCOTIA Citation: P.B. v. Nova Scotia (Community Services), 2014 NSSC 182 Date: 2014 05 16 Docket: SFHCFSA-086845 Registry: Halifax Between: P.B. Applicant v. The Minister of Community Services and S.B. Respondents 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: Leslie J. Dellapinna, J.

Subject: An application for state-funded counsel to represent Applicant in the hearing of his application to terminate orders for permanent care and custody of his children.

Summary: The Applicant applied to the Court to terminate the orders that placed his two daughters in the permanent care and custody of the Minister of Community Services. He could not afford legal counsel and could not obtain representation elsewhere such as through the offices of Nova Scotia Legal Aid. He applied for state-funded counsel under the Charter . The Attorney General opposed his application.

Issues: 1. Is the Minister of Community Services ’ opposition to the Applicant ’ s application to terminate the permanent care and custody orders a state-action that threatens the Applicant ’ s right to security of the person under the Charter ? 2. Could the Applicant receive a fair hearing without a lawyer? 3. Should merit be a consideration when deciding an application for state-funding in the context of an application to terminate orders for permanent care and custody?

Result: The Applicant ’ s right to security of the person under the Charter was threatened by the Minister ’ s ongoing interference with his parent-child relationship with his children and the principles contained in New Brunswick (The Minister of Health and Community Services) v. G. (J.)) applied. The Court determined that the Applicant could have a fair hearing without a lawyer notwithstanding the seriousness of the interests at stake. With some assistance from the Court but primarily because of his own intelligence and ability the Applicant could receive a fair trial if self-represented.

Merit should be a consideration and it was determined that even using a minimum merit threshold test, it was found that the Applicant ’ s application did not have even a minimal likelihood of success. The Applicant ’ s application for state-funding was therefore dismissed. This information sheet does not form part of the court ’ s judgment. Quotes must be from the judgment, not this cover sheet. SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: P.B. v. Nova Scotia (Community Services), 2014 NSSC 182 Date: 2014 05 16

Docket: SFHCFSA-086845 Registry: Halifax Between: P.B. Applicant v. Minister of Community Services and S.B. Respondents 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 Leslie J.

Dellapinna Heard: April 17, 2014 in Halifax, Nova Scotia Counsel: P.B., Self-represented Peter McVey counsel for the Attorney General for the Province of Nova Scotia Pamela MacKeigan, counsel for the Minister of Community Services Shelley Hounsell-Gray, counsel for S.B. By the Court: [ 1 ] The Applicant, P.B., applied to the Supreme Court of Nova Scotia (Family Division) to terminate the orders that placed his two children in the permanent care and custody of the Minister of Community Services.

His application is pursuant to subsection 48(3) of the Children and Family Services Act , S.N.S. 1990 c. 5 [the Act ]. [ 2 ] P.B. wants to have counsel to assist him with his application but he is unemployed and according to his evidence does not have the resources to retain a lawyer. He attempted to obtain representation through Nova Scotia Legal Aid but his

application was denied. He appealed the initial decision of Nova Scotia Legal Aid not to represent him but his appeal was also unsuccessful. [ 3 ] P.B. then applied to this Court for an order that he be provided state-funded counsel.

His application is in the form of an application pursuant to subsection 24(1) of the Canadian Charter of Rights and Freedoms (the Constitution Act , 1982) which provides: 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [ 4 ] P.B. alleged that his right to security of the person which is protected by the Charter would be infringed if he is not granted state-funded representation.

The Attorney General for the Province of Nova Scotia opposed P.B. ’ s application for state-funding. [ 5 ] Both the Minister of Community Services and S.B. (the children ’ s mother) advised the Court that they were taking no position with respect to P.B. ’ s application for funding and neither took

part in the hearing. [ 6 ] This decision relates solely to P.B. ’ s application for state-funded counsel. BACKGROUND [ 7 ] Together P.B. and S.B. had three children; two daughters and a son. Their daughters are now both seven years of age. Their son is now five. [ 8 ] On or about March 1, 2010 the Minister of Community Services initiated a Protection Application pursuant to the Act with respect to the three children. It was the second time that the Minister brought such an application with respect to their children. The first was initiated in the Spring of 2007.

That application was dismissed in January, 2008. [ 9 ] In its March 1, 2010 application the Minister alleged that the children were in need of protective services pursuant to subsections 22(2) (b), (e), (g), (h), (

j) and (ja) of the Act . [ 10 ] The Minister sought an order placing the children in the care and custody of S.B., subject to the supervision of the Minister, with P.B. having access as authorized and arranged by the Minister. [ 11 ] The Interim Hearing began on March 10, 2010 and was completed on March 30, 2010.

The Protection Order was granted on May 10, 2010 with the parents ’ consent. [ 12 ] On or about May 28, 2010 the children were taken into care by the Minister. [ 13 ] An application to vary the interim order was brought before the Court on June 3, 2010 and at that time I granted the Minister ’ s application for temporary care and custody of the children subject to the results of a hearing that took place on July 7, 2010. P.B. opposed the Minister ’ s application for temporary care. At the conclusion of the July 7 hearing I ordered that the

children remain in the temporary care and custody of the Minister. Before this hearing occurred P.B. and S.B. had separated. Among other things I concluded that P.B. had not demonstrated that he was capable of being a single parent to his three young children at least two of whom had very high needs. Based on the evidence I found that prior to the children being taken into care P.B. ’ s and S.B. ’ s parenting of their children was inadequate. Their methods of controlling, directing and disciplining their children resulted in the children being emotionally, psychologically and physically isolated.

I concluded that the children would be at substantial risk of harm if the children were returned to P.B.. There was also evidence from which I concluded that P.B. minimized the children ’ s problems and externalized blame (i.e. placing it on the Agency). [ 14 ] Regular review “ hearings ” were held in the fall and winter 2010 and the beginning of 2011. [ 15 ] By April 2011 the Minister thought that circumstances were such that the Minister was not prepared to consider returning the children to the care of either of their parents.

The Minister also had an expert ’ s report that recommended that the children have no contact with their parents at all for an extended period of time in order that they could better develop coping strategies. [ 16 ] By June 2011 it was apparent that a resolution satisfactory to all parties was not likely to be reached by the statutory deadline of July 7, 2011 and therefore, following the suggestion by counsel for the Minister, a “ roll-over ” took place with the consent of P.B. and S. B. in June 2011.

As part of the “ roll-over ” the Protection Application that was then before the Court was terminated and a new one immediately initiated with P.B. and S.B. consenting to an Order for Temporary Care and Custody dated June 16, 2011. The effect of the “ roll-over ” was to give the parties and the Court additional time for further expert evidence to be received. It also gave P.B., S.B. and the children more time to work with service providers.

Further court appearances were scheduled on a regular basis after June 2011. [ 17 ] The Agency eventually took the position that it could not support the return of the children to their parents. Family placements were investigated and considered. The parties also took

part in a settlement conference in March 2012. [ 18 ] By April 2, 2012 (the day that the trial was to begin) the Court was advised that an agreement had been reached. P.B. and S.B. agreed that all three of the children would be placed in the Permanent Care and Custody of the Minister. As a result the Minister became the legal guardian of the children and as such has “ all the rights, powers and responsibilities of a parent or guardian for the [children ’ s] care and custody. ” (sub- section 47 (1) of the Act ) At the time both P.B. and S.B. were represented by experienced counsel.

I was satisfied that they gave their consents freely and understood the implications to them and the children. After satisfying myself that the Minister had met its onus under the Act the orders for Permanent Care and Custody of the children were granted. [ 19 ] A little over a year later, on June 27, 2013, P.B. filed a Notice of Application to terminate the Permanent Care and Custody orders relating to his daughters. His son is not a subject of his application. [ 20 ] On September 30, 2013 P.B. filed his Notice of Application to have the Attorney General of Nova Scotia provide funding for his counsel.

In his affidavit that accompanied that application he said, among other things, that he had a high school education and was unemployed.

He also indicated that Nova Scotia Legal Aid was not prepared to appoint a lawyer for him (because it was felt his application had insufficient merit) and he had no assets of value and no savings that he could use to retain a lawyer. [ 21 ] He concluded his affidavit by saying: “I do not think I will be able to properly represent myself at a trial because this is a very complex matter involving the permanent care and custody of two children, and the laws and procedures involved are beyond the ability of my education and experience to properly comprehend and address effectively.” THE ATTORNEY GENERAL ’ S POSITION

[22] The Attorney General for the Province of Nova Scotia opposes P.B.’s application for state-fundedcounsel. Counsel for the Attorney General cites three reasons: 1. P.B.’s application to terminate the Permanent Care and Custody orders relating to his daughters has no merit; 2. In the circumstances of this case P.B.’s “right to life, liberty and security of the person” is not being deprived as a result ofany state action and therefore he is not entitled to relief under the Charter; and 3. P.B. can have a fair hearing without a lawyer. NEW BRUNSWICK (THE MINISTER OF HEALTH AND COMMUNITY SERVICES) v.

G. (J.) [23] When considering applications for state-funded counsel in the context of a child protection proceeding,the leading case appears to be the Supreme Court of Canada decision in New Brunswick (Minister of Health and Community Services) v.G. (J.), (SCC), [1999] 3 S.C.R. 46, [1999] S.C.J. No. 47 which I will henceforth refer to as “G. (J.)”. [24] G.(J.) provides that where a government action threatens a person’s

section 7 Charter rights, the state isunder an obligation to do whatever is required to ensure a fair hearing. In certain circumstances an indigent party’s right to a fair hearingmay require the government to provide the party with state-funded counsel. (paragraph 55). [25] In G.(J.) the Court was faced with the issue of “whether indigent parents have a constitutional right to beprovided with state-funded counsel when a government seeks a judicial order suspending such parents’ custody of their children” (para1).

The issue came to the forefront as a result of Legal Aid New Brunswick’s decision not to provide legal aid assistance to a parentinvolved in a child protection proceeding following a policy enforced at the time of the Appellant’s application which stipulated that nolegal aid certificates would be issued to Respondents in custody applications made by the Minister of Health and Community Services. [26] In G.(J.) the Appellant’s three children were placed in the care of the Minister of Health and CommunityServices.

The Minister subsequently obtained an order for custody of the three children for a period of six months. The Appellant wasnot represented by counsel at that hearing. The Minister then sought another order to extend custody for a further six months. At theinitial appearance for that matter the Appellant advised the court that she intended to challenge the temporary custody application. Sheapplied to Legal Aid New Brunswick for legal aid but her application was denied because custody applications were not covered by thelegal aid guidelines at the time.

The Appellant then brought a motion arguing, among other things, that the lack of state-appointed legalcounsel violated the Charter of Rights and Freedoms and in particular

section 7 which reads as follows: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice.” [27] Ultimately the Appellant was successful before the Supreme Court of Canada. At paragraph 55 LamerC.J., said: “...The Minister’s application to extend the original custody order pursuant to

Part IV of the Family Services Act threatened to restrict theappellant’s right to security of the person. This restriction would not have been in accordance with the principles of fundamental justicewere the appellant unrepresented by counsel at the custody hearing.

Section 7 guarantees every parent the right to a fair hearing whenthe state seeks to obtain custody of their children. In certain circumstances, which obtain in this case, the parent’s right to a fair hearingrequires the government to provide the parent with state-funded counsel. To avoid a prospective breach of s. 7, the motion’s judge, whowas under a duty to ensure the fairness of the hearing, should have ordered the government to provide the appellant with state-fundedcounsel under s.24 (1)....” [28] The Court therefore concluded that in the circumstances of that case the Appellant’s right to security of

the person was threatened by the Minister ’ s application to extend the original custody order. [ 29 ] At paragraphs 103 and 104 of G.(J.) Lamer C.J. stated the procedure to be followed in similar cases in the future as follows: “103. 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. 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.” “104. 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 stake, 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. ” (emphasis added) [ 30 ] It is not apparent whether G.(J.) applies when the Minister opposes a parent ’ s application to terminate a Permanent Care and Custody Order. It seems G.(J.) would only apply if the Minister ’ s opposition to a parent ’ s application to terminate a permanent care and custody order is interpreted as a government action that threatens the Applicant ’ s

section 7 Charter rights. [ 31 ] Following G.(J.) the proper analysis should be as follows: 1. Does the Applicant want a lawyer? 2. If the answer to (1) is in the affirmative, has the Applicant exhausted all possible avenues for obtaining state-funded counsel such as that which is sometimes available through legal aid? 3. If the answer to (2) is in the affirmative, is the Applicant unable to afford to retain counsel? 4. If the Applicant is unable to afford a lawyer the Court must then determine whether there is any state action which threatens the Applicant’s

section 7 right to security of the person. 5. If there is a state action that threatens the Applicant’s right to security of the person the Court must determine whether the Applicant would receive a fair hearing without a lawyer through a consideration of the following criteria: (

a) the seriousness of the interests at stake; (

b) the complexity of the proceedings; (​) the capabilities of the parent; and

(

d) the ability of the Judge at the hearing to assist the Applicant within the limits of the judicial role. [ 32 ] Counsel for the Attorney General argued that any G. (J.) analysis should also include a further and overriding consideration of whether the Applicant ’ s application - in this case P.B. ’ s application to terminate the orders for permanent care and custody - has any merit or any reasonable prospect of success. ISSUES [ 33 ] The Attorney General acknowledged that P.B. wants a lawyer, has exhausted all possible avenues for obtaining state-funded legal assistance and is unable to afford a lawyer.

The issues in this case therefore are as follows: 1. Is the Minister’s opposition to the Applicant’s application to terminate the Permanent Care and Custody orders relating to his children a state action that threatens the Applicant’s right to security of the person? 2. Can the Applicant receive a fair hearing without a lawyer through a consideration of the following criteria: (

a) the seriousness of the interest at stake; (

b) the complexity of the proceedings; (​) the capabilities of the Applicant; and (

d) the ability of the judge at the hearing to assist the Applicant within the limits of the judicial role. 3. Should merit be a consideration and if so what is its impact on the Applicant’s application for state-funding? ANALYSIS 1. Is the Minister ’ s opposition to the Applicant ’ s application to terminate the Permanent Care and Custody orders relating to his children a state action that threatens the Applicant ’ s right to security of the person? [ 34 ] The burden of proof in an application for state-funded counsel is with the Applicant.

It is the Attorney General ’ s position that P.B. has failed to meet that burden. In particular, counsel for the Attorney General submits that the nature and circumstances of P.B. ’ s application (to terminate the Permanent Care and Custody orders) does not affect his

section 7 rights. [ 35 ] The first question that needs to be answered is whether P.B. ’ s application involves any state action at all.

[36] In G.(J.) a government agency applied to relieve the Appellant of custody of her children. Theapplication that is now before this Court (an application to terminate orders for Permanent Care and Custody) is different. The Ministerof Community Services did not initiate the application. It is an application brought by P.B. against the state. Custody was previouslydecided in April 2012. [37] With the granting of the orders for Permanent Care and Custody P.B.’s parental status was replaced bythe Agency being put in the position of the children’s legal guardian.

Counsel for the Attorney General takes the position that theMinister of Community Services seeks only to maintain the status quo. There is therefore no state action that could be said to threatenP.B.’s right to security of the person. [38] In my view the Attorney General’s position is too literal. It is not so much the Minister’s opposition toP.B.’s application that is the “state action” as it is the Minister’s ongoing interference with P.B.’s parent-child relationship.

It is thatongoing interference that P.B. seeks to change. [39] The next question is whether that ongoing interference threatens P.B.’s right to security of the person. InG.(J.) the Court concluded that relieving a parent of custody of his or her child restricted that parent’s right to security of the person. [40] The Court relied on past case law to support the proposition that

section 7 of the Charter protects “boththe physical and psychological integrity of the individual” (paragraph 58) and referred in particular to R. v. Morgentaler, (SCC), [1988] 1 S.C.R. 30 (S.C.C.) and said at paragraph 59 “[D]elineating the boundaries protecting the individual’s psychologicalintegrity from state interference is an inexact science.” Lamer C.J., went on to say: “...Dickson C.J. in Morgentaler , supra, at p. 56 suggested that security of the person would be restricted through “serious state-imposedpsychological stress” (emphasis added).

Dickson C.J. was trying to convey something qualitative about the type of state interference thatwould rise to the level of an infringement of this right. It is clear that the right to security of the person does not protect the individualfrom the ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action.

If the rightwere interpreted with such broad sweep, countless government initiatives could be challenged on the ground that they infringe the rightto security of the person, massively expanding the scope of judicial review, and, in the process, trivializing what it means for a right to beconstitutionally protected.

Nor will every violation of a fundamental freedom guaranteed in s. 2 of the Charter amount to a restriction ofsecurity of the person.” (Underlining added) [41] And at paragraphs 60 and 61: 60 “For a restriction of security of the person to be made out, then, the impugned state action must have a serious and profound effect ona person’s psychological integrity. The effects of the state interference must be assessed objectively, with a view to their impact on thepsychological integrity of a person of reasonable sensibility.

This need not rise to the level of nervous shock or psychiatric illness, butmust be greater than ordinary stress or anxiety.” 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 La Forest J.held in B.(​)), [v. Children’s Aid Society of Metropolitan Toronto, (SCC), [1995] 1 S.C.R. 315 (S.C.C.)], at para. 83, “anindividual interest of fundamental importance in our society”.

Besides the obvious distress arising from the loss of companionship of thechild, direct state interference with the parent-child relationship, through a procedure in which the relationship is subject to stateinspection and review, is a gross intrusion into a private and intimate sphere. Further, the parent is often stigmatized as “unfit” whenrelieved of custody.

As an individual’s status as a parent is often fundamental to personal identity, the stigma and distress resulting froma loss of parental status is a particularly serious consequence of the state’s conduct.” (Underlining added) [42] The Court elaborated on the kind of government actions which may interfere with the parent-childrelationship but would not restrict a parent’s right to security of the person. Examples given were when a child is sentenced to jail orconscripted into the army. At paragraph 64 Lamer, C.J. explained:

“While the parent may suffer significant stress and anxiety as a result of the interference with the relationship occasioned by these actions, the quality of the “injury” to the parent is distinguishable from that in the present case. In the aforementioned examples, the state is making no pronouncement as to the parent’s fitness or parental status, nor is it usurping the parental role or prying into the intimacies of the relationship. In short, the state is not directly interfering with the psychological integrity of the parent qua parent.

The different effect on the psychological integrity of the parent in the above examples leads me to the conclusion that no constitutional rights of the parent are engaged.” [ 43 ] So, if a parent applies to terminate an order for Permanent Care and Custody, would the Minister ’ s opposition to that application be seen as a threat to the parent ’ s right to security of the person?

Counsel for the Attorney General put it this way (and I paraphrase): given that the effects of the “ state interference ” must be assessed objectively (paragraph 60 of G.(J.)) would a reasonable person perceive “ a serious and profound effect ” on the “ psychological integrity ” of the parent if the Minister was to successfully oppose the application to terminate? [ 44 ] I was unable to locate any reported cases directly on point i.e. involving a parent ’ s application to terminate an order for permanent care and custody.

Although there are several reported decisions regarding applications for state- funding in the context of

section 684 Criminal Code of Canada , R.S.C. 1985 c. C-46 [the Code ], the only reported decision in this province resulting from an application for state-funding in the context of a child welfare application that I could locate was the relatively recent decision of Williams, J. in Nova Scotia ( Minister of Community Services) v. D.H., [2012] N.S.J. No. 736 , 2012 NSSC 458 . That case did not involve an application to terminate an order for permanent care.

Rather, the Applicant was seeking funding so that he would have representation at a Disposition Hearing in which the Minister was seeking an order for permanent care. [ 45 ] P.B. and counsel for the Attorney General referred me to a number of cases from other jurisdictions which, although not directly on point, were of some assistance. [ 46 ] The case law seems to establish that just as government actions seeking to take custody of a child away from a parent triggers a parent ’ s right to “ security of the person ” the same can be said of appeals of decisions which resulted in a government agency being granted custody.

See for example Re: J.F., [2005] N.J. 194 , 2005 NLCA 34 in which Wells, C.J. said at para. 9: “It is difficult to imagine how it could be argued that the threat “to restrict the appellant’s right to security of the person”, resulting from an application to extend an original custody order, ends with the conclusion of a custody hearing that resulted in the order being granted. If the order is granted when, at law, it perhaps ought not to have been granted, it cannot be said that the level of threat to the parent’s right to security of the person has diminished.

At best, it has remained the same or, at worst, it has increased. Where, as here, there is a statutory right of appeal, I see no reason, in logic, to treat an appeal by the parent, where extension was granted to the Director at the custody hearing, any differently than the custody hearing itself. The threat to the appellant’s Charter right to security of the person on the appeal is at least as great as, if not greater than, it was at the custody hearing.

I conclude, therefore, that the same principles apply to an appeal and the three factors identified by Lamer C.J. ought to be considered in the application of those principles.” [ 47 ] An application to terminate an order for permanent care is, however, not the same as an appeal. An appeal is a process designed to determine whether an order was granted when “ it perhaps ought not to have been granted ” .

An application to terminate an order for permanent care is a process by which a party to a proceeding may apply to terminate an order that is considered to have been the appropriate disposition at the time it was granted.

If the Applicant is unsuccessful with his/her application, the order does not change and the child remains in the permanent care and custody of the Agency. [ 48 ] Consequently, the Attorney General ’ s position is that the Minister ’ s successful defence of an application to terminate an order for permanent care does not in and of itself interfere with the fundamental importance of a parent ’ s interest in raising and caring for his or her child and while the failure to succeed with such an application may cause the Applicant/parent stress and anxiety it does not result in the same quality of “ injury ” as did the initial order relieving him/her of custody.

It does not necessarily involve any new pronouncement regarding the applicant ’ s fitness as a parent. Therefore, it was submitted, viewed objectively the Minister ’ s opposition to P.B. ’ s application cannot be considered to trigger his right to security of the person. [ 49 ] With respect, I disagree. The Attorney General ’ s argument would suggest that while the granting of a Permanent Care and Custody order may result in serious state imposed psychological stress, the dismissal of an application to terminate a Permanent Care order - given that it results in no change to the status quo - would not.

Counsel argues that a reasonable person would

not expect the unsuccessful parent/applicant to suffer any serious or profound effect on his/her psychological integrity. I do not believe that to be the case. [ 50 ] An application to terminate an order for permanent care and custody allows a parent an opportunity, in the appropriate circumstances, to reestablish the parent-child relationship.

While their prior experience with the legal process may temper their expectations or at the very least may have steeled them somewhat to the possibility of an unsuccessful conclusion, I have no doubt that the psychological “ injury ” resulting from an unsuccessful application would be just as severe to a parent as is the granting of the permanent care and custody order in the first place.

While the Court that dismisses an application to terminate an order for permanent care need not necessarily comment again on the fitness of a parent, the Court ’ s decision to dismiss often carries the same message. [ 51 ] The right to security of the person guaranteed by

section 7 of the Charter protects the psychological integrity of an individual. In order for the right to be triggered the state ’ s action must have a “ serious and profound effect on a person ’ s psychological integrity ” . [ 52 ] While an application to terminate is different from an appeal it is one of very few options available to a parent to try to reinstate their parental status. If unsuccessful I don ’ t believe that the effect of the dismissal order on the psychological integrity of a parent of reasonable sensibility would be any less serious or profound even when assessed objectively.

The effect could be even more profound given that the application to terminate may be seen by the parent as a last resort. [ 53 ] I therefore conclude that the Minister ’ s opposition to P.B. ’ s application to terminate the Permanent Care and Custody orders or, perhaps more accurately, the Minister ’ s ongoing interference with P.B. ’ s parent-child relationship with his children, is a state action which threatens P.B. ’ s right to security of the person. 2. Can the Applicant receive a fair hearing without a lawyer through a consideration of the following criteria: (

a) the seriousness of the interests at stake; (

b) the complexity of the proceedings; ( ​ ) the capabilities of the parent; and (

d) the ability of the Judge at the hearing to assist the Applicant within the limits of the judicial role. [ 54 ] Having concluded that P.B. has shown that the Minister ’ s opposition to his application to terminate threatened to restrict his right to security of the person, the next step is to determine whether this infringement would be in accordance with the principles of fundamental justice if P.B. is not represented by counsel at the termination hearing. [ 55 ] In G. (J.) Lamer C.J. said at paragraph 70: “...the principles of fundamental justice in child protection proceedings are both substantive and procedural.

The state may only relieve a parent of custody when it is necessary to protect the best interests of the child, provided that there is a fair procedure for making this determination.” [ 56 ] The Chief Justice went on to say at paragraph 72: “A fair procedure for determining whether a custody order should be extended requires a fair hearing before a neutral and impartial arbiter. The paramount consideration at the hearing should be the child’s best interests....”

[ 57 ] And further at paragraph 73: “For the hearing to be fair, the parent must have an opportunity to present his or her case effectively. Effective parental participation at the hearing is essential for determining the best interests of the child in circumstances where the parent seeks to maintain custody of the child....If [the parent is] denied the opportunity to participate effectively at the hearing, the judge may be unable to make an accurate determination of the child’s best interests.

There is a risk that the parent will lose custody of the child when in actual fact it might have been in the child’s best interests to remain in his or her care.” [ 58 ] To determine whether P.B. can receive a fair hearing without a lawyer G.(J.) directs at paragraphs 75 and 82 that the Court is to consider the seriousness of the interests at stake, the complexity of the proceedings, the capabilities of the parent and the ability of the judge at the hearing to assist the applicant within the limits of the judicial role. (

a) The seriousness of the interests at stake [ 59 ] In G.(J.) the Court held at paragraph 76 that the interests at stake (when the Agency is seeking custody) are “ unquestionably of the highest order ” . Lamer C.J. said: “Few state actions can have a more profound effect on the lives of both parent and child. Not only is the parent’s right to security of the person at stake, the child’s is as well.

Since the best interests of the child are presumed to lie with the parent, the child’s psychological integrity and well-being may be seriously affected by the interference with the parent-child relationship. [ 60 ] And then at paragraph 87: “Although all custody hearings engage serious interests, the seriousness of the interests varies according to the length of the proposed separation of parent from child. For instance, permanent guardianship applications are more serious than temporary custody applications.

Therefore counsel will more likely be necessary in guardianship applications than custody applications....There is also a difference in the seriousness of the interests at stake in custody hearings depending on the length of any previous separation.” [ 61 ] The seriousness of the interests at stake are greater the longer a child is separated from a parent because as noted by the Court at paragraph 77: “...generally speaking, the longer the separation of parent from child, the less likely it is that the parent will ever regain custody.” [ 62 ] As the Supreme Court indicated, when the state pursues custody of a parent ’ s child, or in my view seeks to maintain custody of a child, the interests at stake are of the highest order.

Given that P.B. ’ s daughters have been in the care of the Agency for years, first by virtue of Temporary Care and Custody orders and then as a result of the orders of Permanent Care and Custody which were granted in April 2012, I find that the interests at stake in the present application are extremely high. (

b) The complexity of the proceedings [ 63 ] The Court is to consider whether the termination hearing will be sufficiently complex, in light of the other factors that are to be considered, that P.B. will require the assistance of a lawyer to ensure his right to a fair hearing.

[ 64 ] In G.(J.) the Court characterized the custody hearing contemplated by that case (which is different from P.B. ’ s termination application) as sufficiently complex to require the assistance of a lawyer. At paragraph 79 Lamer C.J. said: “...Although perhaps more administrative in nature than criminal proceedings, child custody proceedings are effectively adversarial proceedings which occur in a court of law. The parties are responsible for planning and presenting their cases. While the rules of evidence are somewhat relaxed, difficult evidentiary issues are frequently raised.

The parent must adduce evidence, cross-examine witnesses, make objections and present legal defences in the context of what is to many a foreign environment, and under significant emotional strain....” [ 65 ] And also at paragraph 80: “In proceedings as serious and complex as these, an unrepresented parent will ordinarily need to possess superior intelligence or education, communication skills, composure and familiarity with the legal system in order to effectively present his or her case....” [ 66 ] The Court did however recognize that not all “ custody ” hearings are the same. “The complexity of the hearing can vary dramatically from case to case.

Some hearings may be very short, involve relatively simple questions of fact and credibility, and have no expert reports. Others may take days and involve complicated evidentiary questions, troublesome points of law, and multiple experts. In the former cases, the assistance of counsel will make little difference to the parent’s ability to present his or her view of the child’s best interests, whereas in the latter cases, the representation of counsel may be essential to ensure a fair hearing.” (Paragraph 88) [ 67 ] As noted by Williams, J. in Nova Scotia ( Minister of Community Services) v.

D.H. (supra) a hearing to decide whether children should be placed in permanent care and custody can be very complex for a number of reasons. It includes various stages, time lines, steps and statutory language that has a legal context that would not necessarily be consistent with everyday usage, and the evidence presented by the Minister can be voluminous which may trigger the consideration of various rules of evidence that a self-represented litigant would not likely be familiar with.

It would be fair to say however that applications to terminate a permanent care and custody order are less complex but it would be an exaggeration to say that they are simple. [ 68 ] The law regarding the test to be met by the applicant is relatively straight forward. The outcome is generally fact driven. Because the facts in each case are different, the complexity of each case is also different. The degree of complexity involved in an application to terminate is not unlike that in an application to vary custody made pursuant to

section 17 of the Divorce Act , R.S.C. 1985, c. 3, or pursuant to

section 37 of the Maintenance and Custody Act , R.S.N.S. 1989, c. 160 which are conducted by self-represented litigants on a regular basis with various degrees of success. Whether an applicant would require the assistance of a lawyer would depend very much on his or her own capabilities. ( ​ ) P.B. ’ s capabilities [ 69 ] At paragraph 89 of G. (J.) the Lamer C.J.C. said: “The parent’s capacities are also variable. Some parents may be well educated, familiar with the legal system, and possess above- average communications skills and the composure to advocate effectively in an emotional setting.

At the other extreme, some parents may have little education and difficulty communicating, particularly in a court of law. It is unfortunately the case that this is true of a disproportionate number of parents involved in child custody proceedings, who often are members of the least advantaged groups in society. The more serious and complex the proceedings, the more likely it will be that the parent will need to possess exceptional

capacities for there to be a fair hearing if the parent is unrepresented.” [ 70 ] I have had the benefit of observing P.B. representing himself at various stages of the child protection proceeding. I have also had the opportunity to review his pleadings including the pleadings which he submitted in support of his application to terminate the Permanent Care and Custody orders as well as his briefs. [ 71 ] Although P.B. does not have a university education he is clearly an intelligent person. He says that he is well read and he certainly appears so. He has done research for this application.

He has done a capable job drafting pleadings and his briefs to the Court illustrate an ability to write and communicate well and persuasively. In the courtroom he is generally composed in spite of the emotional nature of the proceedings. He speaks clearly and presents his thoughts in an organized fashion. When he comes to Court, he comes well prepared.

He has always been appropriately respectful to witnesses, the Minister ’ s counsel, counsel for the Attorney General and to the Court. [ 72 ] During a Disposition Hearing that took place as part of the original protection application proceedings, P.B. displayed considerable skill in the cross-examination of a witness.

Of all the self-represented litigants I have dealt with over the years, I would rate P.B ’ s ability among the best. [ 73 ] Notwithstanding the skill P.B. has demonstrated in representing himself, in his brief dated November 25, 2013 he said: “Intelligence, the ability to read well, and to mirror the basic structure of documents produced by the experienced counsel of those I face in court in no way qualifies me to practice law, or understand the nuance and often confusing processes of the courts.” ... “While intellectually capable of understanding the process, I lack both the knowledge and training required to express and represent myself and receive a fair hearing.” [ 74 ] He also said in his letter to the Court dated April 2, 2014: “While I am not an unintelligent man, when it comes to the complexities of the law I am, at best, a mere layperson.

Someone who can, with time, and diligent study, comprehend the gist of the law and procedure, but not effectively present a case on par with the highly trained counsel I face.” [ 75 ] Those are fair statements. His affidavit filed in support of his application to terminate the Permanent Care and Custody orders demonstrate that he is capable of marshalling the facts that he wants to place before the Court.

However, his pleadings and in particular his briefs suggest that he may be confusing what is required of a parent at a final Disposition Hearing with what is required of an applicant at a termination hearing. [ 76 ] While P.B. would no doubt benefit from the assistance of counsel I believe that with the intelligence and skill that he has demonstrated he would be able to present his case and participate in a hearing effectively. (

d) The ability of the Judge at the hearing to assist the Applicant within the limits of the judicial role

[77] The Court can assist a self-represented litigant to a degree. A trial judge can assist a self-representedlitigant by referring him/her to the appropriate case law as well as outside sources of information and assistance. The trial judge canassist a litigant with the procedural issues and attempt to demystify the legal process. The trial judge can also, to some extent, assist aself-represented party with the structuring of their questions posed to witnesses and allow them a certain degree of latitude that may notordinarily be offered to counsel.

However, a trial judge cannot provide legal advice or assist a self-represented litigant with trialplanning. [78] Primarily because of P.B.’s capabilities and the willingness and ability that he has shown to research thelaw I believe that notwithstanding the seriousness of the interests at stake P.B., with the limited assistance the Court can provide, couldhave a fair hearing without the assistance of counsel. 3.

Should merit be a consideration and if so what is its impact on the Applicant’s application for state-funding? [79] Counsel for the Attorney General submitted that in addition to the G.(J.) considerations, the Court shouldapply a threshold merit test before determining whether state-funding should be ordered. [80] Counsel could not refer the Court to any reported decision which apply a merit test in the circumstancesof an application to terminate an order for permanent care.

However, as I indicated earlier, there does not appear to be any reported caselaw dealing with applications for state-funding in the context of an application to terminate. [81] In criminal law appeals merit is a consideration. In R. v. Frank, [2012] N.S.J. No. 600 (N.S.C.A.) Farrar,J.A. dismissed a motion for state-funded counsel made pursuant to

section 684 of the Code. Justice Farrar concluded that he could notidentify any arguable issue in the grounds of appeal and therefore dismissed the motion for state-funding because the appeal appeared tohave “very little or no merit”. [82] In R. v. George, [2013] N.S.J. No. 167 (N.S.C.A.) Saunders, J.A. gave his reasons for denying anappellant’s motion for the appointment of counsel under

section 684 of the Code. At paragraph 21 Justice Saunders said: “While not delving too deeply into the merits of the appeal I should at least be satisfied that the appeal is arguable, in other words,tenable and not frivolous. As I will explain in a moment, from what I’ve seen of this record it is questionable whether the appellant hascracked that initial threshold.” See also R. v.

Grenkow (1994), 1994 NSCA 46 , 127 N.S.R. (2d) 355 (N.S.C.A.). [83] A merit test has also been applied when applications for state-funding were made in the context of anappeal from an earlier child welfare custody decision. [84] In R.A.F. v. Saskatchewan (Department of Justice), [2003] S.J. No. 783, the appellant made applicationto the Court for a court-appointed legal counsel to represent him in an appeal of a trial decision that had permanently committed his threechildren to the care of the Minister of Community Resources and Employment. The application was dismissed.

At paragraph 7Zarzeczny, J. stated: “ Although this is the kind of matter for which the courts have recognized it appropriate, in proper circumstances, that court-appointedcounsel be considered at the initial hearing [see New Brunswick v. G.J., (SCC), [1999] 3 S.C.R. 46 (S.C.C.)]nevertheless, such an appointment, in the case of an appeal, should not be made unless there is at least some demonstrated or arguablelegal ground to support the appeal; some chance of success - some basic merit to the appeal.

That is not to say that this minimum meritthreshold should in any way prejudice the outcome of an appeal nor should it be applied, except in the most obvious of cases, to deny aperson legal representation in a case such as this where the Supreme Court of Canada has recognized that a person’s constitutional rightsunder the Charter of Rights and Freedoms may entitle that person to representation.”

[85] Zarzeczny, J., in dismissing the application, concluded that the appeal appeared to lack any merit orreasonable chance of succeeding. [86] In Newfoundland and Labrador (Manager of Child, Youth and Family Services) v. L.F. (Appeal by J.F.),2013 NLCA 27 , [2013] N.J. No. 249; 2013 NLCA 27, J.F., who was the mother of L.F. and the grand-mother of S.F.,appealed the decision of a Family Division judge granting a continuous custody order of S.F. to the Manager of Child, Youth andFamily Services and denying J.F.’s claim to custody of S.F..

J.F. applied to the Court for an order appointing counsel for her inaccordance with the principles in G.(J.). Green, C.J.N.L. ultimately dismissed her application on the ground that the G.(J.) principleswere not engaged because of J.F.’s lack of any significant involvement in S.F.’s life since her birth. Prior to reaching that conclusionhowever he addressed the issue of merit and said at paragraph 50: “In principle, if there is no discernable merit in the appeal, there would be no justification for proceeding to consider the matter further.” [87] In L.D. v. J.B., 2012 ABQB 693 , [2012] A.J.

No. 1195; 2012 ABQB 693 Jerke, J. dismissed anapplication for court funded counsel. Justice Jerke found that the Appellant had to show that her appeal was meritorious and heconcluded that it was not. At paragraph 34 he said “I conclude that the appeal has little chance of success.” [88] In W.S. v. Alberta (Child, Youth and Family Enhancement, Director), 2013 ABQB 231 , [2013]A.J. No. 387; 2013 ABQB 231 the Applicant applied to the Court for an order for state-funded counsel to assist him in his appeal of aProvincial Court decision under the Child, Youth and Family Enhancement Act, R.S.A. 2000, c.

C-12 granting a PermanentGuardianship Order respecting his seven children. In dismissing the application Ross, J. said at paragraphs 12 and 13: 12. “I agree that the right to state-funded counsel in child protection appeals requires consideration, in addition to the factors referred toin JG, of the merit of the appeal. This is the view of the majority of courts that have considered this issue. While this factor was notmentioned by the Newfoundland and Labrador Court of Appeal in JF,[2005 NLCA 34], the same court in the subsequent decision of LT[[2010] N.J.

No. 362; 2010 NLCA 70] agreed that it would be premature to consider whether counsel should be appointed for purposesof the full appeal, until the merits of the appeal had been considered in a preliminary application.” 13. “To provide state-funded counsel for an appeal without merit and without any chance of success would not further the objectives ofJG. If children are removed from parental custody after a hearing, particularly a hearing at which the parents had legal representation,there is a prima facie case that the principles of fundamental justice have been complied with, as required by s. 7 of the Charter.

Todemonstrate otherwise requires a showing that, at least arguably, the order was granted “when, at law, it perhaps ought not to havebeen”; JF at para 9. To provide funding for an appeal that has no real chance of reuniting parent and child does not further the parents’or the children’s right to security of the person.” [89] As for the test to be applied Ross, J. adopted the words of Zarzeczny in R.A.F (supra) that there must be“some demonstrated or arguable legal ground to support the appeal” and “some chance of success”.

He repeated Zarzeczny, J.’sconclusion that it is a minimum merit threshold that should not be applied except in the most obvious of cases. (para. 15) [90] Whereas merit is a factor to be considered before state-funding is granted for counsel to appeal a childwelfare custody decision, there seems to be an even stronger argument for merit to be a threshold test if the application for state-fundingis in relation to an application to terminate. [91] At the appeal stage, there is a prima facie presumption that the principles of fundamental justice werecomplied with at the trial stage.

In the circumstance of an application to terminate a Permanent Care and Custody order, the PermanentCare and Custody order, unless overturned on appeal, carries with it the same presumption and is deemed to have been correct at the timeit was made. It seems that if merit is to be a threshold test for the former then logically it should be a threshold test for the latter. [92] There are other reasons why merit should be a threshold test. Every jurisdiction has only finite judicialresources. Family proceedings of all kinds place a strain on the court system.

Child welfare proceedings already take up a verysignificant portion of this Court’s docket sometimes causing other proceedings to be postponed. The heavy demands on courtroom timecreate docket delays that frequently stretch into many months. Those delays, in turn, add to litigants’ frustrations, anxieties, stress andcosts.

[ 93 ] Public funds are not limitless. Presumably one of the reasons, if not the main reason, that Nova Scotia Legal Aid denied P.B. ’ s application for representation is that its funding is shrinking while demands on its services are growing. While this Court has thus far received relatively few applications for state-funding based on the G.(J.) principles, it is likely that such applications will increase in frequency as the pressures on Nova Scotia Legal Aid increase.

While the welfare of children should never take a backseat to fiscal concerns or expediency, the interest of justice should require the courts to expect some degree of accountability on the part of litigants before granting orders for state-funded counsel. Anything less would be untenable. [ 94 ] Assuming the merit test is a “ minimum merit threshold ” (R.A.F., supra) it would not run afoul of the G. (J.) objectives ( see W.S. , supra ). Also, a merit consideration would be in the best interests of the children who are the subject of the application to terminate.

If the Agency plan was to find an adoption placement for the child, an application to terminate should not be encouraged or prolonged if it does not have some chance of success. Sub- section 76 (3) of Act reads as follows: “

(3) In the case of a child who is a child in permanent care and custody, the notice of the proposed adoption shall not be given until any appeal from an order for permanent care and custody of the child or from a decision granting or refusing an application to terminate an order for permanent care and custody is heard and finally determined or until the time for taking an appeal has expired.” [ 95 ] Subsection 76 (3) prohibits the filing of a Notice of Proposed Adoption while an application to terminate remains before the Court thereby effectively preventing any adoption process from proceeding.

Assuming placement of the child in an appropriate home is in that child ’ s best interest, stalling or preventing such a placement from taking place because of an application that has little or no merit would not be in the child ’ s best interest. [ 96 ] I therefore conclude that a threshold merit test should be applied when an application for state-funding is made in contemplation of an application to terminate an order for permanent care and custody. [ 97 ] Whatever merit test is applied should be a minimum test.

In other words, the Applicant need not show that they have a strong case or a likelihood of success. Rather, he/she need only demonstrate that their application has at least some chance of success or some basic merit. [ 98 ] When measuring the likely merit of the application to terminate, the Court should not be bound by the assessment of merit made by Legal Aid ( see W.S. , supra , para 14 ). The Court should make its own decision. [ 99 ] There are likely to be cases where it would be difficult for the chambers judge to assess the merit of an application.

If that is not possible then the benefit of the doubt should be given to the Applicant.

However, in cases such as the one that is presently before the Court, where the full record of the proceeding is before the chambers judge, such an assessment can probably be made, often without the need to appoint counsel for the Applicant for the purpose of disposing of the application. [ 100 ] In P.B. ’ s affidavit sworn June 27, 2013 which accompanied his application to terminate the Permanent Care and Custody orders he said at paragraph 3 that he was applying to terminate the orders “ or at least vary the order to allow me to have regular access to see my children.... ” [ 101 ] His affidavit provides a history of the proceedings from his perspective. [ 102 ] He describes his children ’ s circumstances based on material that was filed with the Court prior to the Permanent Care and Custody orders being granted.

He also refers to reports previously filed with the Court and in particular the report of Ms. Debra Garland dated October 4, 2011. [ 103 ] P.B. repeats positions which he advanced prior to the Permanent Care and Custody orders being granted. He takes issue with opinions expressed by Ms. Garland in her report.

[ 104 ] As long and as detailed as his affidavit is, it contains little new information. [ 105 ] He is critical of the psychiatric treatment the children are receiving (or not receiving as the case may be) and is critical of the foster family with whom the children are placed. [ 106 ] He believes the children should be allowed to have their own counsel and be allowed to make their wishes known. [ 107 ] As for his own circumstances P.B. says the following: “92 I have been proactive in improving my life and parenting skills. 93.

I have taken and completed a positive parenting course and received a certificate of completion for the same (Exhibit “J) 94. The skills I has (sic) learned through this program revolve around dealing with children and the focus is on setting structure and routine. 95. I have completed and received a certificate for an anger management course through Nova Scotia Mental Health. 96. I have studied and received certification in first aid and CPR (Exhibit “K”). 97.

I have actively taken control of my health and for my efforts had my needed medications for diabetes reduced by my doctor, including the discontinuance of two such medications, and lost over 20 kilograms. 98. I have arranged for Family SOS to provide supervision to access visits, should the court grant them, to provide a safe, positive environment (Exhibit “L”), and allow for unbiased documentation of said visits for the courts. 99. I have enquired and been informed I can also utilize Family SOS’ family reunification program when the need arrises. 100.

I have prepared a parenting plan (Exhibit “M”), and am more than willing to work with the Minister to achieve any changes we may agree are beneficial. 101. My transition plan for the return of the children would be a gradual one, starting with two visits per week, then full access on weekends, to full reintegration.” [ 108 ] The orders for permanent care and custody were granted on April 2, 2012.

The positive parenting course to which P.B. refers in paragraph 93 of his affidavit was taken in the autumn of 2010 and his certificate is dated December 9, 2010 - well before the permanent care orders were granted. [ 109 ] While it is commendable that P.B. took a St-John ’ s Ambulance First Aid course his successful completion

of that course would have little or no impact on the ultimate outcome of his application. [ 110 ] P.B. ’ s affidavit contains no details of any change in circumstance that would suggest that the concerns that led to the Court granting the Permanent Care and Custody orders in the first place are any less now than they were when the orders were granted. [ 111 ] P.B. ’ s application and accompanying affidavit suggest to me that P.B. is approaching this application as if it is an appeal of the permanent care orders. His letter to the Court dated November 25, 2013 reinforces that conclusion.

It ends with the sentence: “This case had merit before settlement was reached, it was never argued before the court, its merit remans (sic) unchanged.” [ 112 ] This is not an appeal. The test to be applied when considering an application to terminate an order for permanent care is twofold: (1) have the circumstances changed so that there is no longer any need for protection and that the parent is the proper person to care for the child? and (2) when the application is made, is it in the best interest of the child to terminate the order? (See Nova Scotia (Minister of Community Services) v. D.L.C., [1997] N.S.J.

No. 78 (N.S.C.A.) ) . The change must be “ significant, relevant and a positive benefit for the welfare of the child to result in a termination order. ” (See M.D. v. Children ’ s Aid Society of Halifax, [1994] N.S.J. No. 191 (N.S.C.A. ) at para 61 .) [ 113 ] P.B ’ s daughters have mental health and emotional difficulties for which they are likely going to need treatment for many years. Their mental health issues are significant.

The evidence presented prior to the granting of the Permanent Care and Custody orders strongly suggested that the cause of these disorders resulted from a lack of an emotional connection between the children and their parents, neglect and possibly even abuse. [ 114 ] The evidence suggested that neither P.B. nor S.B. could meet the emotional needs of their children. [ 115 ] By the time the permanent care orders were granted the children had already been in care for nearly two years. The symptoms that they demonstrated during that time were alarming.

The therapy that they received prior to the permanent care orders barely scratched the surface of the treatment that they require. Even with the very best therapeutic treatment, it would be unrealistic to expect significant progress being made in the two years since the permanent care orders were granted. Even if significant progress has been made, the circumstances of P.B. as described in his affidavit have not changed enough that it ’ s likely that the Court would believe that it would be in the best interests of the children (or either of them) to be returned to his care at this time.

There ’ s no evidence that he could meet the high needs of the children. [ 116 ] It seems that P.B. has yet to comprehend or accept the needs of the children and there is no evidence that he ’ s undergone the kind of therapy he may need in order to be able to respond to the children ’ s needs. [ 117 ] I therefore can ’ t help but conclude that P.B. ’ s application to terminate the orders for permanent care and custody does not have the required chance of success to meet even a minimum merit threshold test.

I say this knowing that an application for state-funded counsel should not be denied for this reason except in the most obvious of cases.

CONCLUSION [ 118 ] In conclusion, although P.B. has satisfied me that his right to security of the person is threatened by the Minister ’ s ongoing interference with his parent-child relationship with his children I hereby dismiss his application for state-funding because I have concluded that he can have a fair trial without the assistance of counsel and further because he has not satisfied me that his application to terminate the orders for Permanent Care and Custody has even a minimal likelihood of success.

[ 119 ] Although in preparing this decision merit was the final issue that I addressed, in future I suggest that merit be addressed immediately after determining whether there is any state action that might threaten the applicant ’ s right to security of the person. If a minimum merit threshold test is not met it would become unnecessary to consider the other G.(J.) factors. [ 120 ] I ask that counsel for the Attorney General prepare the appropriate order. J.