Butler v. Snelgrove, 2015 NLCA 46

Date: 20151006 Docket: 14/83 & 14/89 Citation: Butler v. Snelgrove , 2015 NLCA 46 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : CLAIRE LOUISE BUTLER APPELLANT/APPLICANT AND : NORMAN GRAHAM SNELGROVE RESPONDENT Coram: Green C.J.N.L., Welsh and White JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division 200702U0996 (2014 NLTD (F) 11 and 2013 NLTD (F) 24 Application Heard: May 27, 2015 Decision Rendered: October 6, 2015 Reasons for Decision by Welsh J.A. Concurred in by Green C.J.N.L. and White J.A.

Counsel for the Appellant/Applicant: Eric Groody and Julia Gaunce (by teleconference) Counsel for the Respondent: Stephanie L. Newell Q.C. Counsel for the Attorney General: David Rodgers

Welsh J.A.: [ 1 ] Ms. Butler is appealing orders flowing from her divorce. As a preliminary matter she seeks to have court fees waived as well as a transcript provided by the court and counsel appointed, both without cost to her. BACKGROUND [ 2 ] Ms. Butler filed notices of appeal against decisions of Dunn and McGrath JJ. dealing with spousal and child support, division of matrimonial property, and custody of and access to the children of her marriage to Mr. Snelgrove. Ms. Butler, who is a British citizen, has remarried and lives in Alberta while Mr.

Snelgrove and the children live in this Province. [ 3 ] Pending consideration of the appeals, Ms. Butler twice applied for a stay of the order of Dunn J. Both applications were denied ( 2014 NLCA 51 and 2015 NLCA 5 ). Ms. Butler also filed an application stating that she “has no source of income or savings and has been denied legal aid in Newfoundland and Alberta”. She requested an order for the appointment of counsel and the waiver of fees and costs associated with the appeals. [ 4 ] Just prior to Ms.

Butler commencing her appeals, the right of access to the courts where a litigant lacks financial means was addressed by the Supreme Court of Canada in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General ), 2014 SCC 59 , [2014] 3 S.C.R. 31. At the time, it was determined that application of the principles set out in that case to Ms. Butler’s request would engage legal and constitutional questions involving

section 55 of the Judicature Act , RSNL 1990, c. J-4, the Supreme Court Fees Regulations , RNL 90/07, and rule 7.19 of the Rules of the Supreme Court, 1986 . A hearing to consider the issues was held on May 27, 2015. Solely for the purpose of dealing with those issues, the Attorney General participated in the hearing and agreed to provide funding for counsel for both Ms. Butler and Mr. Snelgrove. [ 5 ] However, since the hearing, amendments were made to both the Supreme Court Fees Regulations , RNL 39/15, and rule 7.19, RNL 43/15.

As discussed below, as a result of the amendments, most of the issues considered at the hearing are moot. (Counsel were provided with the opportunity to make submissions regarding the amendments.) ANALYSIS Application of the Amended Regulations and Rules [ 6 ] When legislation has been amended, whether the amendments will apply in a pending matter is discussed in R. v. Dineley , 2012 SCC 58 , [2012] 3 S.C.R. 272: [10] There are a number of rules of

interpretation that can be helpful in identifying the situations to which new legislation applies. Because of the need for certainty as to the legal consequences that attach to past facts and conduct, courts have long recognized that the cases in which legislation has retrospective effect must be exceptional. More specifically, where legislative provisions affect either vested or substantive rights, retrospectivity has been found to be undesirable.

New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively [citations omitted]. However, new procedural legislation designed to govern only the manner in which rights are asserted or enforced does not affect the substance of those rights. Such legislation is presumed to apply immediately to both pending and future cases [citations omitted]. [11] Not all provisions dealing with procedure will have retrospective effect.

Procedural provisions may, in their application, affect substantive rights. If they do, they are not purely procedural and do not apply immediately [citations omitted]. Thus, the key task in determining the temporal application of the Amendments at issue in the instant case lies not in labelling the provisions “procedural” or “substantive”, but in discerning whether they affect substantive rights . (Emphasis added.) [ 7 ] In this case, it is clear that Ms.

Butler’s application for an exemption from the payment of fees and the appointment of counsel is procedural in nature, and that the amendments do not affect substantive rights. It follows that the proper course is to apply the amended provisions. Relevant Legislation and Rules [ 8 ] Section 55(1) of the Judicature Act provides authority for the rules committee of the court to make rules respecting enumerated matters, including: (

j) respecting the costs of proceedings in the court; and (

k) governing the pleading, practice and procedure generally of the Court of Appeal or the Trial Division. [ 9 ] Sections 55(2) to (4) provide:

(2) The Lieutenant-Governor in Council may make rules fixing the scale of fees to be taken by the Supreme Court.

(3) Each rules committee may make rules fixing the scale of fees to be taken by barristers and others for proceedings in the court not included in subsection (2).

(4) Rules made under this

section are subordinate legislation for the purposes of the Statutes and Subordinate Legislation Act . [ 10 ] As amended, the Supreme Court Fees Regulations , enacted under the Judicature Act , provide for the payment of fees together with a

schedule of fees:

2. A person shall pay to the Supreme Court the fee listed in the

Schedule for the service set out opposite the fee. [ 11 ] For purposes of an appeal, the

Schedule specifies: Fees to be taken by the Supreme Court … 3. For making copies of any …. affidavit or other document in the Registry, at the rate of $0.25 for every page or a part of a page. (Except that the Supreme Court may provide free of charge copies of the reasons for an order or judgment filed in a matter to every party to the matter, …) … 6. With a Notice of Appeal 60.00 … 9. With an order of the Court 60.00 10. For an affidavit 10.00 … 15.

For transcripts of evidence or other proceedings a charge of $3.00 a page to the person requesting the transcript and a charge of $0.25 per page to each person requesting a copy 16. For a copy of the sound record of evidence or other proceedings a charge of $20.00 per tape [ 12 ]

Section 2.1 of the Regulations , in force as of June 26, 2015, provides for an exemption from payment of the fees:

(1) A clerk, officer or employee of the Supreme Court who performs a registry function may waive a fee under these regulations in whole or in part where an individual (

a) requests that the fee be waived; and (

b) provides proof satisfactory to the clerk, officer or employee that he or she is in receipt of income support under the Income and Employment Support Act .

(2) A judge of the Supreme Court may waive a fee under these regulations where (

a) an individual requests that the fee be waived; and (

b) after considering the individual’s financial and other circumstances, the judge is satisfied that it is appropriate to waive the fee. [ 13 ] Following the addition of the above exemption to the Supreme Court Fees Regulations , rule 7.19 of the Rules of the Supreme Court, 1986 was amended by the Trial Division rules committee, effective July 10, 2015. The amended rule outlines a procedure for applying

section 2.1 of the Supreme Court Fees Regulations . Rule 7.19 states, in relevant parts:

(1) A person may apply to the Court to have the fees payable pursuant to the Supreme Court Fees Regulations waived or reduced.

(2) An application pursuant to this rule shall be in Form 7.19A and may be accompanied by an affidavit or supporting documents.

(3) An application pursuant to this rule may be made without notice to any other party.

(4) No fee shall be charged for an application pursuant to this rule or for any affidavit or documents filed in support of it.

(5) No document filed in support of an application pursuant to this rule may be used for any other purpose unless any required fees are paid or waived.

(6) Upon receipt of an application pursuant to this rule, the registrar shall (

a) waive the fees payable if the registrar is satisfied that the applicant is in receipt of income support under the Income and Employment Support Act , or (

b) forward the application to a judge.

(7) The Court may allow an application summarily at any time.

(8) The Court may allow an application in whole or in

part if (

a) paying the fee would (

i) constitute an undue hardship for the applicant, and (ii) prevent the applicant from advancing a non-frivolous and non-vexatious claim or defence; or

…

(9) In exercising its discretion under this rule, the Court may consider whether (

a) the applicant’s claim, application, notice, defence, or filing (

i) discloses no reasonable claim or defence; (ii) is scandalous, frivolous, or vexatious, (iii) may prejudice, embarrass, or delay the course of a proceeding, or (iv) is otherwise an abuse of the Court’s process; (

b) the applicant’s claim, application, notice, defence, or filing is pursued in good faith in the public interest; … (

e) the Court has already waived fees for the applicant; and (

f) the applicant has filed every document in the applicant’s control that might support the applicant’s claim. [ 14 ] Rule 7.20 provides for an application for an order that the party “is to pay no costs in the proceeding”. The rule includes the procedure and factors to be considered in assessing that application. [ 15 ] Unlike the previous rule 7.19, no provision is made in either rule 7.19 or 7.20 for the appointment of counsel. [ 16 ] Before proceeding with the analysis of the above Regulations and rule, I note that the amended rule 7.19 would apply, with the necessary changes, to an appeal.

Rule 1.02 provides: These rules govern every proceeding in the Supreme Court of Newfoundland and Labrador, including the conduct of appeals, except where a statute otherwise provides. Rule 57 is the rule that applies specifically to appeals. There is nothing in that rule that would displace the application of rule 7.19 to an appeal.

Access to the Courts - Exemption from the Payment of Fees Underlying Principles [ 17 ] The analysis of an exemption from the payment of fees prescribed under the Supreme Court Fees Regulations begins with the constitutional principle regarding access to the courts discussed in the Trial Lawyers Association of British Columbia case: [36] It follows that the province’s power to impose hearing fees cannot deny people the right to have their disputes resolved in the superior courts. To do so would be to impermissibly impinge on s. 96 of the Constitution Act, 1867 .

Rather, the province’s powers under s. 92(14) must be exercised in a manner that is consistent with the right of individuals to bring their cases to the superior courts and have them resolved there. [37] ... It follows that the province does not have the power under s. 92(14) to enact legislation that prevents people from accessing the courts. [ 18 ] McLachlin C.J.C., for the majority, also relied on the rule of law to support the principle of access to the courts on the basis that the “ s. 96 judicial function and the rule of law are inextricably intertwined” (paragraph 39).

Nonetheless, she continued: [41] … not “every limit on access to the courts is automatically unconstitutional” ([ Christie v. British Columbia (Attorney General ), 2005 BCCA 631 , 262 D.L.R. (4th) 51] para. 17). In the present case, the hearing fee requirement has the potential to bar litigants with legitimate claims from the courts. The tax at issue in Christie , on the evidence and arguments adduced, was not shown to have a similar impact. [ 19 ] McLachlin C.J.C. explained that litigants are expected to arrange their finances “so that, with reasonable sacrifices, they may access the courts” (paragraph 45).

The point at which fees may infringe the right of access to the courts is when the fees cause “undue hardship” (paragraph 45). McLachlin C.J.C. concluded: [48] [A]s a general rule, hearing fees must be coupled with an exemption that allows judges to waive the fees for people who cannot, by reason of their financial situation, bring non-frivolous or non-vexatious litigation to court. A hearing fee scheme can include an exemption for the truly impoverished, but the hearing fees must be set in an amount such that anyone who is not impoverished can afford them.

Higher fees must be coupled with enough judicial discretion to waive hearing fees in any case where they would effectively prevent access to the courts because they require litigants to forgo reasonable expenses in order to bring claims. … Application to an Appeal [ 20 ] In considering the right of access to the courts, there is no basis on which to draw a distinction between proceeding with a trial as opposed to an appeal. The right of appeal constitutes a core jurisdiction of superior courts under

section 96 of the Constitution Act, 1867 . In the Trial Lawyers Association of British Columbia case McLachlin C.J.C., referring to sections 92(14) and 96 of the Constitution Act, 1867 , wrote:

[29] … Taken together, these sections have been held to provide a constitutional basis for a unified judicial presence throughout thecountry: MacMillan Bloedel Ltd. v. Simpson, (SCC), [1995] 4 S.C.R. 725, at paras. 11 and 52.

Although the bare wordsof s. 96 refer to the appointment of judges, its broader import is to guarantee the core jurisdiction of provincial superior courts:Parliament and legislatures can create inferior courts and administrative tribunals, but “[t]he jurisdiction which forms this core cannot beremoved from the superior courts by either level of government, without amending the Constitution” (MacMillan Bloedel, at para. 15). In this way, the Canadian Constitution “confers a special and inalienable status on what have come to be called the ‘section 96 courts’”(MacMillan Bloedel, at para. 52).

Similarly, in MacMillan Bloedel, McLachlin J. wrote: [51] … [The

section 96 courts established across the country] are united by the fact that they exercise similar jurisdiction, by the factthat their judges are federally appointed and paid, and by the fact that appeals lie from all to the Supreme Court of Canada, whichexercises a unifying influence. The result is a network of related Canadian courts ensuring judicial independence, interprovincialuniformity, and minimum standards of decision making throughout the country. … [21] The right of appeal is an essential part of the core jurisdiction of the

section 96 superior courts. Accordingly, just as access tothe courts for purposes of a trial may not be precluded by reason of lack of financial means, the same principle applies to an appeal. Exemption from the Payment of Fees under the Amended Provisions [22]

Section 2.1 of the Supreme Court Fees Regulations and rules 7.19 and 7.20 are intended to provide a means whereby a litigantwho lacks financial means may, nonetheless, exercise the right of access to the courts as discussed in the Trial Lawyers Association ofBritish Columbia case. In

summary, an application for an exemption must be assessed on the basis of undue hardship. The fees andcosts at issue must have the potential to bar the litigant who has a non-frivolous claim or appeal from accessing the courts. The applicantis expected to make efforts to pay the fees and costs by appropriate arrangement of his or her finances and making reasonable sacrifices. [23] The court fees as set out in the

Schedule to the Supreme Court Fees Regulations vary from minimal to substantial. As applied toan appeal, filing of documents such as a notice of appeal, a court order and an affidavit, and obtaining copies of the sound record of theevidence would fall at the minimal end of the continuum. Costs of $60, $60, $10 and $20 per tape (or disc), respectively, would precludea litigant from proceeding only in exceptional circumstances.

Section 2.1(1) of the Supreme Court Fees Regulations and rule 7.19(6)(a)specifically provide for an exemption from the payment of fees where the litigant is in receipt of social assistance. In other situations,exemption from the payment of these minimal fees or fees for copying materials would fall within the broad authority of the court toorder an exemption under

section 2.1(2) of the Regulations and rule 7.19(8)(a). [24] Costs with respect to transcripts for an appeal raise additional issues. Transcripts are governed by the Recording of EvidenceAct, RSNL 1990, c. R-7, with

section 5 addressing the preparation of the transcript:

(1) An official court reporter, employee of the court or a person referred to in subsection (2) or (3) may prepare a transcript of the wholeor a part of (

a) a sound record …; or (

b) a copy of a sound record reproduced under

section 6 …

(2) The Department of Justice may, with the approval of the appellate court, contract with a person, other than an official court reporteror employee of the court, for the purpose of subsection (1).

(3) Where a party to a proceeding intends to appeal a decision and that party obtains an order from the appellate court, that party may, inaccordance with the terms and conditions contained in the order, arrange to have a person prepare a transcript of the whole or a part of acopy of a sound record reproduced under

section

Section 6 provides for reproduction of the original sound record, and “the contents reproduced shall have the same effect as the originalevidence.” [25] In

summary, a transcript “may” be prepared by a court employee under subsection (1) or by a private transcription service undersubsection (3). The use of the word “may” permits two possible

interpretations of subsection (1): first, the court employee is authorized,but not required, to produce a transcript; or, second, the court employee is not simply authorized, but is obliged to produce a transcript. Under the first

interpretation, a litigant may request that a transcript be produced by a court employee, but the request may be refused onreasonable and non-arbitrary grounds, leaving the litigant with the option of engaging a private transcription service. Under the secondinterpretation, the court system would be required to provide a transcript where a request was made. [26] In determining which of these

interpretations is correct, the discussion of the word “may” in R. Sullivan, Sullivan on theConstruction of Statutes, 5th edition (Markham, ON: LexisNexis, 2008), at pages 69 to 74, is of assistance. At pages 70 to 71, the authorwrites: When a statutory power is conferred using the word “may”, the implication is that the power is discretionary and that its recipient canlawfully decide whether or not to exercise it. After all, if the legislature wished to impose an obligation, it could easily have used “shall”instead of “may”. But as Dickson C.J. cautions in R. v.

S.(S.), the use of “may” is not conclusive: [M]y reasons should not be taken as an indication that the use of the term “may” alone is determinative of the question whether anobligation is imposed. … The absence of an obligation expressed in unequivocally mandatory language is, however, one factor whichleads me to conclude that the Young Offenders Act does not oblige the provinces to initiate a program of alternative measures.

In other words, the use of “may” implies discretion, but it does not preclude obligation. The interpreter must determine whether there isanything in the statute or in the circumstances that expressly or impliedly obliges the exercise of the power. … … The word “may” alone cannot determine the outcome; it must be considered in context, having regard to the usual things – the Act asa whole, the purpose and scheme, the entire context. [27] Examples discussed by Sullivan are of further assistance. In Brown v.

Metropolitan Authority (1996), 1996 NSCA 91 ,150 N.S.R. (2d) 43 (NSCA), Pugsley J.A. concluded that, once the conditions for compensation had been met, a duty arose to exercisethe power to make the payment. Under the Community of Sackville Landfill Compensation Act, the purpose of the statute would havebeen thwarted if the payment was discretionary. [28] On the other hand, Sullivan points out that satisfying conditions precedent to the exercise of a power will not necessarily giverise to an obligation. In R. v.

Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, the Court concluded that, while dangerous offender status canonly be imposed after certain conditions have been satisfied, a court retains the discretion to determine a just and fit sentence consistentwith the purpose and principles of sentencing set out in the Criminal Code. In the result, “may” was construed as discretionary. [29] Case authority led Sullivan to comment, at page 73: … What the cases show is that the

Interpretation Act provisions respecting “may” create a presumption, not a rule. … [30] The final issue referenced by Sullivan is the degree or scope of discretion arising from the use of “may”. In R. v. Lavigne, 2006SCC 10, [2006] 1 S.C.R. 392, dealing with forfeiture of the proceeds of crime, Deschamps J. wrote: [27] The effect of the word “may” cannot therefore be to grant a broad discretion. The exercise of the discretion is necessarily limitedby the objective of the provision, the nature of the order and the circumstances in which the order is made. That said, Deschamps J. cautioned, at paragraph 28, that “the word ‘may’ must not be read to say ‘must’ unless such an

interpretation isdictated by the context.” [31] As applied to this case, for the following reasons, I conclude that “may” as used in

section 5 of the Recording of Evidence Actdoes not give rise to an obligation by a court employee to provide a transcript whenever requested. [32] To proceed with an appeal, the Rules require the filing of necessary portions of the transcript of proceedings in the court below(rule 57.06 of the Rules of the Supreme Court, 1986). The purpose of the Act is to ensure that a true and correct, certified transcript isprovided to the Court and that an appellant has an avenue to obtain such a transcript. [33] With respect to the entire context of the Act, with the exception of

section 5, the Act deals solely with the use of sound recordingmachines to record evidence.

Section 2 sets out

definitions. Sections 3, 4 and 6, virtually unchanged since first enacted in 1959, provide: 3. The evidence or a portion of evidence in a proceeding may, by general or specific order of a judge, or under an order of the AttorneyGeneral in general or specific terms, be recorded by a sound recording machine. 4.

(1) A sound record made under

section 3 shall be certified by the judge or by the court official in charge of the sound-recordingmachine during the proceeding as being the record made of the evidence or portion of the evidence in the proceeding.

(2) A certificate made under subsection (1) shall, without proof of the signature of the judge or, where made by the person in charge ofthe sound-recording machine, without proof of his or her signature or official character, and in the absence of evidence to the contrary,be evidence that the sound record is the record of the evidence or portion of the evidence in the proceeding. 6. The contents of a sound record made under

section 3 and certified under

section 4 may be reproduced by a device, machine or systemof a type approved by the Supreme Court or by the Attorney General, and the contents reproduced shall have the same effect as theoriginal evidence. [34]

Section 7 of the Act deals with the filing, custody and distribution of sound recordings.

Section 8, the final provision in the Act,authorizes the making of regulations “to give effect to the purpose of this Act or for supplying a deficiency in this Act”. Theseprovisions all deal with ensuring an accurate recording of evidence while authorizing the use of mechanical recording machines. [35] As to a written transcript,

section 5 originally provided for transcription only by a court employee (RSN 1970, c. 116): An official court reporter or a shorthand-typist may reduce to typewritten copy the whole or a part of a sound record made under section3 and certified under

section 4, and where a reporter or shorthand-typist does so he or she shall attach to the typewritten copy his or heraffidavit stating that it is a true and correct transcription of the record or part of it and the typewritten copy shall then have the sameeffect as the original evidence. [36] In 1994,

section 5 of the Act was amended, adding subsection (3) to authorize an appellant to have a person other than a courtreporter prepare the transcript. I would infer from the context of the Act as a whole that the provision of an accurate transcript remainedthe focus, with subsection (3) providing an additional avenue for obtaining an approved transcript. [37] There is nothing in

section 5 that would preclude an appellant from requesting that a court employee provide a transcript. However, if the request was refused on reasonable and non-arbitrary grounds, the appellant would have the alternative of engaging aprivate transcription service since a transcript obtained via that route would be equally authoritative. [38] It should be noted that section 5(1) does not contain a requirement for a court order. An affidavit “stating that it is a true and

correct transcription of the sound record or part of it” is a requirement when the transcript is prepared by a court employee (section 5(1)). Section 5(3), rather than requiring an affidavit, specifies a court order. I take judicial notice of the fact that, in practice, appellants have not sought and the Court has not required an order permitting preparation of a transcript by a private transcription service.

In a manner comparable to subsection (1), a transcript provided by a private transcription service has been accepted and relied upon by this Court and parties to an appeal, provided the transcriber attaches a certification attesting that it is a true and correct transcription. Indeed, in practice, neither a court employee nor a transcriber from a private transcription service provides a sworn affidavit.

Rather, a certificate as provided in the Transcript Standards Manual of the Court Reporters’ Office is used. [ 39 ] The Manual is referenced in rule 57.06(11) of the Rules of Court, 1986 , which provides: A written transcript shall be prepared in accordance with the Recording of Evidence Act and the Transcript Standards Manual of the Court Reporters’ Office. [ 40 ] The Manual states: The Transcript Standards Manual has been created for the propose of ensuring that transcripts filed with the Supreme Court of Newfoundland are consistent throughout the province and follow standard guidelines for transcribing verbatim evidence with the utmost accuracy.

The Transcript Standards Manual is to be used by all individuals preparing transcripts for the Supreme Court of Newfoundland. … [ 41 ] The Manual includes instruction regarding the format to be used, guidelines to proper English, and instructions regarding copying, binding and labelling. Regarding certification of the transcript, the Manual states: When a transcript has been concluded the Court Reporter/Transcriber makes the following certification(

s) which is/are then placed after the title page but before the index or the first page of text: Forms are provided for certifying the transcript as “true and accurate” to the best of the transcriber’s knowledge and ability. [ 42 ] The Manual, read together with the Recording of Evidence Act and the Rules , reinforces the conclusion that the focus and purpose of the Act is to ensure the accuracy of transcripts provided for purposes of an appeal. [ 43 ] In the result, I am satisfied that the Recording of Evidence Act is intended to ensure both that the Court is provided with a true and correct transcript and that an appellant has access to obtaining such a transcript.

The option under section 5(3) provides an alternative source in cases where transcription is not provided by a court employee under subsection (1). There is nothing in the purpose or context of the Act that would place an obligation on a court employee to provide a transcript where such an alternative is available. [ 44 ] The question, then, is whether there is a means by which public resources could be used to provide a transcript where the Crown is not a party and the appellant is unable for financial reasons to obtain a necessary transcript.

In considering that issue, I would emphasize that the first step in a particular case would be to determine whether a transcript, or portion thereof, is essential (rule 57.06). There are many cases where an appeal may be argued and decided without reference to a transcript. The decision under appeal should contain reasons, including findings of fact, explaining the outcome. This Court’s role is to review the decision for error, not to conduct a re-trial based on the evidence.

Where the appeal is based on issues of law or the application of the law to the facts found by the trial judge, the Court would need to be convinced of the need for a transcript. [ 45 ] If the need for a transcript is established, the Court may order that it be prepared by a court employee. This would be an administrative matter over which the court retains authority insofar as the court has employees whose responsibility it is to prepare transcripts. [ 46 ] However, ordering that a court employee provide the transcript would engage the operation of the Supreme Court Fees Regulations and paragraph 15 of the

Schedule of fees. Whether there should be an exemption from payment of the fees would be determined under rule 7.19. To obtain an exemption in whole or in part, the appellant would be required to demonstrate that: (1) the transcript or portion thereof is necessary to enable disposition of the appeal; (2) the grounds of appeal requiring a transcript are not frivolous or vexatious and those grounds could possibly affect the result; and (3) payment of the fees would result in undue hardship taking into account the appellant’s responsibility to make reasonable sacrifices in arranging his or her finances.

If these requirements are satisfied, subject to the direction of the Court, there would be a further obligation on the appellant to use the sound record to identify the relevant portions of the transcript so as to minimize the burden on the court transcription system. Exemption from Fees in this Case [ 47 ] At the conclusion of the hearing of this application, the Court indicated that, insofar as necessary, a conference with the parties would be held to determine how the matter will proceed. Based on the affidavits provided by the parties, I would make the following determinations. [ 48 ] Ms.

Butler’s affidavit does not provide a basis on which to conclude that she should be exempt from fees related to the filing of documents or the obtaining of the sound record from the court. Those costs are minimal and Ms. Butler has not demonstrated that the payment of the fees would cause undue hardship. I note in particular Ms. Butler’s failure to identify steps she has taken over the years to obtain the necessary immigration qualification to allow her to practice her profession of music teacher.

It is reasonable to assume that, with the necessary immigration authorization, she would be able, at a minimum, to earn money through offering private lessons. I note that her visitor visa specifies that she is prohibited from engaging in employment in Canada “unless authorized”. [ 49 ] Further, she attests that, while her husband is a teacher in Calgary, the family financial resources are completely committed.

However, as noted in the Trial Lawyers Association of British Columbia case, litigants are expected to arrange their finances “so that, with reasonable sacrifices, they may access the courts” (paragraph 45). There is no information indicating steps Ms. Butler has taken in

that respect. [ 50 ] As to the transcript, two decisions, those of Dunn and McGrath JJ., are under appeal. Both decisions provide lengthy and detailed reasons. The Notices of Appeal do not provide any detail regarding the grounds of appeal. As to McGrath J.’s decision, the Notice states only: The trial judge erred in law. The trial judge made palpable and overriding errors of fact. [ 51 ] As to Dunn J.’s decision, the Notice of Appeal is similar. However, details regarding the grounds of appeal are set out in Ms. Butler’s application for a stay. In

summary, Ms. Butler alleges that Dunn J. erred by: a. Imputing income to her without considering s. 19.1(

a) of the Federal Child Support Guidelines ; b. Varying previous orders without first finding a material change in circumstances; c. Denying her a litigation friend; d. Instructing her that she could not question Mr. Snelgrove’s financial figures because he was an accountant; e. Awarding an unequal division of matrimonial assets in favour of Mr. Snelgrove; f. Awarding a greater share of matrimonial assets to Mr. Snelgrove while ordering an equal division of debts; g. Allowing unconscionable delay in handing down the decision; h. Failing to find a material change in her circumstances; i.

Failing to conduct a de novo hearing of the application for custody of and access to the children; j. Requiring different burdens of proof to be met by the parties; k. Failing to consider the maximum contact principle; l. Misapplying the principles set out in section 31(2) of the Children’s Law Act ; m. Working from a presumption in favour of the custodial parent; n. Failing to act as an independent and impartial arbiter, and instead acting as counsel for Mr. Snelgrove; o.

Conferring with unknown persons to discuss the evidence and trial process and coming to decisions in conference with those persons without giving her an opportunity to make submissions or object to their involvement; p. Making errors of fact such as saying Ms. Butler had no parenting plan and referring to a date as 2011 when it should have been 2012. [ 52 ] Of these grounds, item (

d) and perhaps (c), (

h) and (

n) might require portions of the transcript. It would be Ms. Butler’s responsibility: (1) to show that those grounds are not frivolous or vexatious and that they could possibly affect the result; (2) to use the sound record to identify the relevant part of the transcript; and (3) to demonstrate that the cost of transcription of that evidence by a private service would amount to undue hardship. [ 53 ] The remaining grounds of appeal should not require a transcript because alleged errors such as these can be assessed based on the trial judge’s decision, documentary evidence and submissions of the parties.

I reiterate that the purpose of an appeal is to review the trial judge’s decision for error, not to retry the case based on a new consideration of the evidence. (Item “o” would not require a transcript because it is apparently not based on the record, but on possible fresh evidence.) [ 54 ] As to McGrath J.’s decision, the grounds set out in the Notice of Appeal are not sufficiently detailed to permit assessment of the need for a transcript. [ 55 ] Mr. Snelgrove also applied to be exempt from the payment of fees and costs for purposes of the appeal. While Mr.

Snelgrove’s financial resources have suffered a significant set-back as a result of the litigation and expenses he has incurred with respect to custody of the children, he is an employed chartered accountant and should be able to arrange his finances so as to pay for filing fees and the cost of providing copies of his factum and authorities. Rule 7.20 – Order Regarding Costs of the Appeal [ 56 ] Ordinarily, costs of an appeal will be determined when the decision is rendered, taking into account all the relevant considerations.

Only in rare circumstances would an order be made at the outset of proceedings such that an unsuccessful party would be relieved of the risk of paying the costs of the successful party. Care must be taken to avoid placing the respondent at a financial disadvantage and the appellant at an advantage at the outset. [ 57 ] In this case, Ms. Butler has not provided a basis on which such an order should be made. Mr. Snelgrove has indicated that the litigation to date and Ms. Butler’s conduct have had significant negative effects on his financial situation.

Costs of the appeals should be determined in the ordinary course at the conclusion of the matter.

Appointment of Counsel [58] Prior to being amended, rule 7.19 provided for the appointment of counsel in circumstances where a litigant is unable to accesscounsel due to a lack of financial means. That provision has been repealed. As discussed above, it is the amended rule 7.19 that appliesfor purposes of Ms. Butler’s appeals. [59] I note that, with respect to this application, notice was served on the Attorney General who agreed to fund counsel solely for thepurpose of addressing the legal and constitutional questions arising from the Trial Lawyers Association of British Columbia case and rule7.19.

Such issues involved questions of law having general application in which the Crown had an interest. Accordingly, the assistanceof counsel was sought by the Court and provided by the Crown. [60] The current rule does not provide a foundation for Ms. Butler to seek an order for the appointment of counsel for purposes ofthe appeals. Nor is there another basis on which such an order would be made in the circumstances. The provision of counsel in thefamily law context was considered in New Brunswick (Minister of Health and Community Services) v. G.(J.), (SCC),[1999] 3 S.C.R. 46.

That case involved a parent losing custody of her children. Legal Aid was not available. The Court referred to theseriousness of the interests at stake in which the children would be placed in the care of the state, the complexity of the proceedings andthe limited capacity of the mother (see paragraphs 75 to 81). [61] In this case, the issues are purely of a private nature between parties to a marriage dissolution. The grounds of appeal do notraise novel issues requiring the assistance of counsel, nor do they raise issues of general public interest.

SUMMARY AND DISPOSITION [62] In

summary, the right of appeal is an essential part of the core jurisdiction of the

section 96 superior courts. Accordingly, theprinciples regarding the right of access to the courts discussed in the Trial Lawyers Association of British Columbia case are engaged inan appeal. [63] The relevant provisions to be assessed for purposes of this application are the amended Supreme Court Fees Regulations andrule 7.19. The amended Regulations provide for an exemption from the payment of the Scheduled fees, and rule 7.19 provides anappropriate procedure which applies, with the necessary changes, to an appeal. [64] Ms.

Butler has not established the basis for an order that she be exempt from the payment of filing fees. Regarding theprovision of a transcript and copying of materials, Ms. Butler has leave to apply for directions from the Court, based on the principlesand factors set out above. [65] It would not be appropriate to make an order regarding costs of the appeals at this stage; that issue should be considered upondisposition of the appeals. There is no basis on which to order the appointment of counsel for purposes of the appeals. [66] While Mr.

Snelgrove’s financial resources have suffered a significant set-back as a result of the litigation and expenses he hasincurred with respect to custody of the children, he has not provided a basis on which to conclude that the payment of filing fees and thecost of providing copies of his factum and authorities would result in undue hardship. ____________________________________ B. G. Welsh J.A. I Concur: __________________________________ J. D. Green C.J.N.L. I Concur: __________________________________ C. W. White J.A.