D.B. v. A.B., 2016 NSCA 43

Nova Scotia Court of Appeal Citation: D.B. v. A.B., 2016 NSCA 43 Date: 20160530 Docket: CA 450219 Registry: Halifax Between: D.B. and C.B. Appellants v. A.B. and K.B. (by way of their Guardian Ad Litem, S.P.), Minister of Community Services, C.B and L.M. Respondents Restriction on Publication: Pursuant to s. 94(1) of the Children and Family Services Act , S.N.S. 1990, c. 5. Judge: The Honourable Chief Justice J. Michael MacDonald Motion Heard: May 19, 2016, in Halifax, Nova Scotia in Chambers Held: The motion for state-funded counsel is allowed.

Counsel: D.B., appellant in person C.B., appellant In person Tammy MacKenzie (not present) for the respondent S.P Patricia McFadgen for the respondent Minister of Community Services C.B., respondent in person (not present) L.M., respondent in person (not present) Stacey Gerrard for Lawyers’ Insurance Association of Nova Scotia (not present) Barry Whynot for Nova Scotia Legal Aid Edward Gores, Q.C. for the Attorney General of Nova Scotia Restriction on publication: Pursuant to s. 94(1) of the Children and Family Services Act , S.N.S. 1990, c. 5.

PUBLISHERS OF THIS CASE PLEASE TAKE NOTE THAT s. 94(1) OF THE CHILDREN AND FAMILY SERVICES ACT APPLIES AND MAY REQUIRE EDITING OF THIS JUDGMENT OR ITS HEADING BEFORE PUBLICATION. 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. Decision:

[1] Following oral arguments, I directed the Attorney General to provide counsel for the appellant parents in this child protectionproceeding. Here are my reasons for doing so. BACKGROUND [2] This matter involves four children, AB, KB, BB, and GB. To say that life has been unfair to them would be an understatement.First, they were the subject of protection proceedings involving their natural parents. As a result, they came into the care of the Ministerand were then placed with the appellants, first as foster parents and then as adoptive parents.

Now, for a second time, they have beensubjected to child protection proceedings. While the legal issues involving the two older children (AB and KB) have been settled,Associate Chief Judge Raymond Morse, of the Nova Scotia Family Court has determined that the two younger children (BB and GB)have been subjected to inappropriate physical discipline at the hands of their “new” parents, the appellants. He ordered them again intothe permanent care of the Minister [Nova Scotia (Community Services) v. D.B., 2016 NSFC 4]. [3] The appellants deny any abuse, insisting that any disciplinary measures were appropriate.

They contend that A.C.J. Morse erred in finding otherwise, prompting the present appeal (set for September 9th, 2016). They also want to introduce fresh evidence thatthey say would have made a difference had A.C.J. Morse been aware of it. To achieve all of this, they seek state-funded counsel. ANALYSIS [4] It is well settled that when the state seeks to enforce its child protection authority, the parents’ s. 7 Charter rights are engaged.This means that, to ensure a fair process, the state may have to provide counsel for indigent parents. Lamer, C.J. in New Brunswick(Minister of Health and Community Services) v.

G. (J.), (SCC), [1999] 3 S.C.R. 46 explains: 2 …When government action triggers a hearing in which the interests protected by s. 7 of the Canadian Charter of Rights andFreedoms are engaged, it is under an obligation to do whatever is required to ensure that the hearing be fair. In some circumstances,depending on the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent, the governmentmay be required to provide an indigent parent with state-funded counsel.

Where the government fails to discharge its constitutionalobligation, a judge has the power to order the government to provide a parent with state-funded counsel under s. 24(1) of the Charterthrough whatever means the government wishes, be it through the Attorney General’s budget, the consolidated funds of the province, orthe budget of the legal aid system, if one is in place. [5] The Chief Justice further explained that not every case will command state-funded counsel.

It depends on the circumstances ineach case: 86 I would like to make it clear that the right to a fair hearing will not always require an individual to be represented by counselwhen a decision is made affecting that individual’s right to life, liberty, or security of the person. In particular, a parent need not alwaysbe represented by counsel in order to ensure a fair custody hearing. The seriousness and complexity of a hearing and the capacities of theparent will vary from case to case.

Whether it is necessary for the parent to be represented by counsel is directly proportional to theseriousness and complexity of the proceedings, and inversely proportional to the capacities of the parent. [6] The Attorney General also invites me to consider the potential merits of the appeal. She suggests that, to qualify, theappellants must first establish that the appeal stands at least some chance of success. [7] From this, the following considerations emerge: a. The merits question; b. The parents’ indigence; c. The seriousness of the interests at stake; d. The complexity of the proceedings; and e.

The parents’ capacities. The Merits Question [8] A consideration of the merits is routine in the equivalent criminal law context. For example, in R. v. George, 2013 NSCA 41,my colleague Justice Saunders said this: 20 Before addressing these two inquiries judges first tend to begin with a quick evaluation of the strengths of the grounds of appeal. 21 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. [9] More recently, in R. v. Martin, 2015 NSCA 360, my colleague Justice Farrar added: 20 The appropriate threshold for evaluating the merits of the appeal is whether there is an arguable issue. See also: R. v. Frank, 2012 NSCA 114, ¶ 9 and ¶ 20 and R. v. Stewart, 2014 NSCA 56, ¶ 13-14. [10] There is at least one Canadian appellate court that has imposed a similar requirement in the child protection context. ChiefJustice Green of the Newfoundland Court of Appeal in JF v.

Newfoundland and Labrador (Child, Youth and Family Services), 2013NLCA 27 said this about a merits consideration:

41 While this point was not expressly discussed in S.F. or L.T. , I am nevertheless prepared to accept that it is not unreasonable for the Court to address such a consideration in its analysis. In a sense, the other criteria, especially the seriousness and complexity of the matter, assume that the potential appeal is not unmeritorious and not frivolous. If the appeal on its face has no merit then it cannot be said to be complex. In reality, it is a hidden or unspoken consideration in any event. Consequently, it is appropriate to take account of potential merit as a factor.

I would say, however, the threshold should be a low one. I would not describe the standard as “whether the appeal is meritorious” but rather whether there is any discernible merit in the appeal in the sense that the appeal does not appear on its face to be frivolous or without any arguable basis. [ 11 ] While I agree that merit should be a consideration, it is a particular challenge in the child protection context. For example (recognizing the need for stability in children’s lives) we work under very strict statutory timelines in processing these matters. This appeal is no exception.

The notice of appeal was filed on April 13 th , barely a month ago. Yet the appeal must (and will) be heard by September 9 th . We do not even have an appeal book yet. So all I have to go on is the judge’s decision and the appellants’ notice of appeal. Of course, one cannot ignore the irony of using the notice of appeal as a tool to assess merit.

The appellants’ request for state- funded counsel is premised on their inability to properly articulate the merits of their appeal. [ 12 ] Furthermore, Nova Scotia Legal Aid operated under the same disadvantage when denying coverage following its merit assessment. [ 13 ] Therefore, by necessity, merit must represent a low threshold.

In my view, I need only be satisfied that the appeal, on its face, is not frivolous. [ 14 ] Here, while the judge delivered a comprehensive decision that appeared to address all of the relevant issues, the matter did involve a comprehensive voir dire to determine the admissibility of the children’s out-of-court statements. Furthermore, the entire decision was premised on the reliability of these statements. I therefore cannot conclude, at this stage, that the appeal is frivolous.

The Parents’ Indigence [ 15 ] The Attorney General acknowledges that the appellants have insufficient funds to advance this appeal and that they have exhausted all Nova Scotia Legal Aid avenues. The Seriousness of the Interests at Stake [ 16 ] The Minister also (quite properly) acknowledges that there are serious interests at stake here. In fact, it is hard to imagine a more serious risk than that of permanently losing contact with your children. The Complexity of the Proceedings [ 17 ] Irony also visits this consideration. The potential evidentiary issue aside, A.C.J.

Morse’s decision rested primarily on a factual determination – whether the children’s abuse allegations were made out. Yet, as self-represented litigants, the appellants risk making the appeal more complicated than it need be. They have raised issues of incompetent counsel, and they seek to introduce fresh evidence. Without at all commenting on the merits of any of their grounds of appeal, the involvement of counsel could very well render the appeal less complicated.

In other words, this should not be a complicated matter, but it may take state-funded counsel to make that so. [ 18 ] The statutory timelines are also at play in this consideration. While the appeal should not be complex, there is very little time to meet the filing deadlines and to prepare for the hearing. This adds to the challenge. The Parents’ Capacities [ 19 ] Mr. and Mrs. B. have grade 9 and 7 respectively. They have had no previous exposure to the legal system. These two factors, while not insurmountable, are challenging. However, I have one overriding concern. It is the appellants’ emotional state.

They are completely overwhelmed by this process. Their children have been placed in the permanent care of the Minister. This understandably takes an enormous toll. They are not sleeping and could hardly utter a word before me without breaking down. Yet, in a compressed timeframe, they are expected to pull it all together in order to meet their filing deadlines and prepare for the hearing. I am convinced that, in these particular circumstances, that would be too much to ask. They require counsel. [ 20 ] In reaching this conclusion, I am mindful that permanent care orders must be devastating for all parents.

However, this should not suggest that state-funded counsel will be required in all such cases. Instead, each case must stand on its own facts. Here, the appellants simply cannot function as self-represented litigants. DISPOSITION [ 21 ] The Attorney General is directed to provide counsel to represent the appellants in this appeal. It shall be a joint retainer. MacDonald, C.J.N.S.