2014 SKCA 139 Date:, 2014 SKCA 139

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 139 Date: 2014-12-31 Between: Docket: CACV2527 In the matter of a hearing under The Child and Family Services Act and in the matter of J.B.B. #1 J.B.B. #2 J .B. Appellant - and - Minister of Social Services , on behalf of The Government of Saskatchewan Respondent - and - L.B. Respondent Coram:

Richards C.J.S., Ottenbreit and Herauf JJ.A. Counsel: Bruce Campbell for the appellant Michael Morris for the respondent , Minister of Social Services Appeal: From: 2014 SKQB 49 Heard: December 12, 2014 Disposition: Appeal dismissed Written Reasons: December 31, 2014 By: The Honourable Chief Justice Richards In Concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Herauf Richards C.J.S. I. introduction [ 1 ] The appellant, J.B. (the “Father”) has two boys who are presently six and four years of age. He and the mother of the boys had a tumultuous relationship fuelled by substance abuse.

The boys were the subject of a series of protection orders and agreements made pursuant to The Child and Family Services Act , SS 1989-90, c C-7.2 [ Act ]. [ 2 ] In May of 2013, the Minister of Social Services applied to the Court of Queen’s Bench for an order permanently committing the boys to his care. A hearing was held. The Father represented himself in those proceedings but was assisted by an amicus curiae . The boys were found to be in need of protection and the order sought by the Minister was made. [ 3 ] The Father appeals from the Queen’s Bench decision.

In broad terms, he submits that the protection order should be set aside because the trial was unfair. He contends that he needed the assistance of a lawyer and says he was unable to effectively present his case without such assistance. The Father also argues that the hearing judge erred in deciding to commit the boys to the Minister. In his view, the judge focused unduly on his parenting history and failed to consider, or consider properly, his prospects for the future. II. the legislative framework [ 4 ] The Act is aimed at the protection of children and the provision of support services to families.

Among other things, it sets out a process whereby orders may be made with respect to the custody of children who are in need of protection. [ 5 ]

Section 11 of the Act defines the “in need of protection” concept. In relevant part, it says this: 11 A child is in need of protection where: (

a) as a result of action or omission by the child’s parent: (

i) the child has suffered or is likely to suffer physical harm; (ii) the child has suffered or is likely to suffer a serious impairment of mental or emotional functioning; (iii) the child has been or is likely to be exposed to harmful interaction for a sexual purpose, including involvement in prostitution and including conduct that may amount to an offence within the meaning of the Criminal Code ;

(iv) medical, surgical or other recognized remedial care or treatment that is considered essential by a duly qualified medical practitioner has not been or is not likely to be provided to the child; (

v) the child’s development is likely to be seriously impaired by failure to remedy a mental, emotional or developmental condition; or (vi) the child has been exposed to domestic violence or severe domestic disharmony that is likely to result in physical or emotional harm to the child; (

b) there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur; or … [ 6 ] A person designated by the Minister pursuant to s. 57 (

b) of the Act (an “officer”) may apprehend a child when, on reasonable and probable grounds, he or she concludes the child is in need of protection and at risk of incurring serious harm. This authority is found in s. 17(1). If an apprehended child is not returned to a person who has a right to the custody of the child, the officer must make an application for a protection hearing. The parts of s. 17 which are applicable to this appeal read as follows: 17(1) Where an officer or peace officer concludes, on reasonable and probable grounds, that a child is in need of protection and at risk of incurring serious harm, the officer or peace officer shall: (

a) take all reasonable steps that he or she considers necessary to provide for the safety or welfare of the child, including, in the case of an officer, the offer of family services where practicable; or (

b) where no other arrangements are practicable, apprehend the child and remove the child to a place of safety. …

(4) If a child apprehended pursuant to subsection (1) is not returned to a person who has a right to custody of the child within 48 hours of being apprehended, an officer shall: (

a) if a family review panel has been appointed in the region or locality where the apprehension occurred, apply for a review pursuant to

section 20 of the reasons for the apprehension; and (

b) within seven days, not including the day on which the child was apprehended, make an application to the court for a protection hearing. … [ 7 ] On a protection hearing, the court must determine whether the child is in need of protection. If the court decides the child is not in such need, it must order the return of the child to a person who has a right to custody of the child. On the other hand, if the court determines that the child is in need of protection, the officer must present recommendations with respect to an appropriate order. All of this is set out in s. 36 of the Act : 36(1) On a protection hearing, the court shall determine whether the child is in need of protection.

(2) Where the court determines that a child is in need of protection, the officer shall present to the court the officer’s recommendations respecting an order to be made pursuant to

section 37.

(3) If the court determines that a child is not in need of protection, it shall dismiss the application and order the return of the child to a person who has a right to custody of the child.

(4) An order pursuant to subsection (3) does not constitute an order for custody of the child. [ 8 ] The court has a range of options if it determines a child to be in need of protection. At one end of the spectrum, it can order that the child be returned to his or her parent. At the other end of the spectrum, the court can order that the child be permanently committed to the Minister. These alternatives are laid out in ss. 37(1) to (3): 37(1) Subject to subsection (2), if the court determines that a child is in need of protection, the court shall make an order that the child: (

a) remain with, be returned to or be placed in the custody of his or her parent; (

b) be placed in the custody of a person having a sufficient interest in the child; or (

c) remain in or be placed in the custody of the minister for a temporary period not exceeding six months.

(2) If, in the opinion of the court, none of the orders described in subsection (1) is appropriate, the court shall make an order permanently committing the child to the minister.

(3) Notwithstanding subsections (1) and (2), the court may, if it is of the view that: (

a) a child is in need of protection; and (

b) by reason of the age of the child or other circumstances, it is unlikely that an adoption plan would be made if the child were permanently committed to the minister; order that the child be placed in the custody of the minister until the child attains the age of 18 years. [ 9 ] In analyzing a matter under s. 37, the court must follow a two-step analysis: (

a) determine if the child is in need of protection within the meaning of s. 11 , and (

b) decide on the appropriate order. [ 10 ] The Act specifies the matters to be considered in determining what sort of order should be made pursuant to s. 37 . They are listed in s. 37(4):

(4) In making an order pursuant to subsection (1), (2) or (3), the court: (

a) shall consider the best interests of the child; (

b) may consider the recommendations of the officer mentioned in subsection 36(2); and (

c) may consider the recommendations of a chief, a chief’s designate or an agency that appears in court pursuant to subsection (11). [ 11 ]

Section 4 of the Act must also be noted here. It elaborates on the factors to be considered when the court determines “the best interests of the child” under s. 37: 4 Where a person or court is required by any provision of this Act other than subsection 49(2) to determine the best interests of a child, the person or court shall take into account: (

a) the quality of the relationships that the child has with any person who may have a close connection with the child; (

b) the child’s physical, mental and emotional level of development;

(

c) the child’s emotional, cultural, physical, psychological and spiritual needs; (

d) the home environment proposed to be provided for the child; (

e) the plans for the care of the child of the person to whom it is proposed that the custody of the child be entrusted; (

f) where practicable, the child’s wishes, having regard to the age and level of the child’s development; (

g) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity; and (

h) the effect on the child of a delay in making a decision. [12] The welfare of the child is the paramount, but not the only, consideration to be taken into account in considering the variousoptions available under s. 37. The court must also be mindful of other relevant matters as well because the list of factors identified in s.37(4) is not exhaustive. The wishes of the child’s parents must be given independent but subordinate weight. That weight will depend onthe circumstances of the case.

Further, any determination made pursuant to s. 37 should be undertaken in the context of the purpose ofthe Act which is stated in s. 3 to be “to promote the well-being of children in need of protection by offering, wherever appropriate,services that are designed to maintain, support and preserve the family in the least disruptive manner.” See: Saskatchewan (Minister ofSocial Services) v E.K.S. (1996), (SK KB), 146 Sask R 46 (QB), and as confirmed by this Court in S.F. (Re), 2009SKCA 121 at para 29, [2010] 1 WWR 217. [13] On the expiry of an order made pursuant to clause 37(1)(

b) or (c), the officer must return the child to a person who has a right tocustody. However, in the alternative, the officer may apply for a hearing to determine whether the child continues to be in need ofprotection. This must be done before the expiry of the order or within 15 days after its expiry. If the child is found to still be in need ofprotection, the court may make any order authorized by ss. 36 or 37. All of this is addressed in s. 38. Its most relevant features are asfollows: 38(1) Subject to subsection (2), on the expiry of an order pursuant to clause 37(1)(

b) or (c), an officer shall return the child to a personwho has a right to custody of the child.

(2) An officer may: (

a) before the expiry; or (

b) within 15 days after the expiry; of an order mentioned in subsection (1) or an order pursuant to subsection 37(6), apply for a hearing to determine whether the childcontinues to be in need of protection. …

(6) The provisions of this Part respecting protection hearings apply, with any necessary modification, to a hearing held pursuant tosubsection (2). …

(8) At a hearing pursuant to subsection (2), the court shall: (

a) determine whether the child continues to be in need of protection; and

(

b) make any order authorized by

section 36 or 37, as the case may require. … [ 14 ] The question before a court in a s. 38 proceeding is not whether previous protection orders were valid. They must be taken as having been properly made. This was explained by Hunter J.A. in S.F. (Re) at para. 23 : [23] … the authority of the trial judge is found in s. 38 of the Act . The task in the hearing before the trial judge, in her capacity as a reviewing judge, is to determine, at the time of the hearing and using as the point of reference the date the last order expired, whether the children continued to be in need of protection.

If the children continue to be in need of protection, the task is to determine which of the possible orders provided for in s. 37 of the Act is appropriate and applicable in the circumstances. … [ 15 ] With that bit of statutory and procedural context, it is now possible to examine the particulars of this appeal. III. background [ 16 ] The Father was born in 1955 and grew up in difficult circumstances in the Alberta foster care system. [ 17 ] The Father met L.B. (the “Mother”) in 2007 and they have been involved in a difficult on-again and off-again relationship since that time.

The Father describes himself as an addict and an alcoholic. [ 18 ] The Father’s first child, who I will refer to as “the six year old,” was born in 2008. He underwent withdrawal issues immediately after his birth because the Mother was on methadone. The Ministry’s ongoing involvement in the six year old’s life began at that time. [ 19 ] The Father’s second child, who I will refer to as “the four year old,” was born in 2010.

The Mother’s pregnancy was healthy, at least in relation to drug and alcohol abuse matters. [ 20 ] The Mother also has three other children, two of whom were in her custody during the early parts of her relationship with the Father. Those children have been committed to the permanent care of the Minister. [ 21 ] I will not attempt to itemize the full history of the Ministry’s involvement with the Father and the Mother or its efforts to assist them to care effectively for the children. Suffice it to say that the involvement was extensive.

It includes numerous protection hearing applications, residential services agreements and parental services agreements. [ 22 ] That said, it is perhaps helpful to specifically flag some of the more important features of the Ministry’s interventions in relation to the children. [ 23 ] On January 5, 2011, when the boys were in the Father’s custody, the Mother contacted the Ministry to express concern about marks she had observed on the six year old’s back and buttocks. This led Ministry officials to attend the boys’ daycare.

They confirmed the existence of the marks and the child explained, “Daddy owie me.” Both boys were apprehended. The Ministry then entered a Parental Services Agreement with the Father. It involved the provision of six weeks of intensive in-home family support by Ranch Ehrlo (10 to 15 hours per week) aimed at assisting the Father with parenting, discipline, budgeting and addictions. He undertook, among other things, to provide a safe environment for the children, to learn alternative disciplinary techniques and to work intensively with Ranch Ehrlo.

The children were returned to the Father on the strength of the Agreement. [ 24 ] As the six weeks of programming was coming to a conclusion, Ranch Ehrlo felt that its services should be extended because the Father was displaying anxiety, becoming agitated and yelling at the boys. Ranch Ehrlo believed the children were at risk and the Ministry took them into care again for a one-month period beginning March 2, 2011 pursuant to a Residential Services Agreement signed by the Father.

As part of the Agreement, the Father also undertook to have a mental health assessment and to attend counselling at Family Services Regina. He was apparently prescribed medication as a result of the assessment. [ 25 ] The boys were returned to the Father early in April of 2011 after he signed a Parental Services Agreement through which he committed to provide a safe and stable environment for the boys, not consume alcohol, continue with counselling and work cooperatively with Ranch Ehrlo.

For its part, Ranch Ehrlo agreed to complete a second intervention with the Father and, from its perspective, the Father made good progress with the program. [ 26 ] On May 20, 2011, the Ministry received a call from the Mother wherein she expressed concern for the children because she and the Father had been out drinking the night before, the children had been home alone and she did not know the Father’s location. Ministry officials found the children in the Father’s home. They were dirty and distressed. The Father was asleep or passed out in his bed.

The children were apprehended again. [ 27 ] The Ministry applied for a protection hearing but then withdrew the application in favour of a Parental Services Agreement, running from June 15, 2011 to August 31, 2011. The Father agreed to continue using a variety of community supports such as the Early Childhood Intervention Program and Addiction Services. The Mother was not to be in the house and Catholic Family Services was to make random visits.

The Father committed to continue with counselling and so forth by way of another Parental Services Agreement signed on July 28, 2011 and running to September 28, 2011. [ 28 ] On August 18, 2011, the Father contacted the Ministry and requested financial assistance for groceries. The Ministry decided to do a child welfare check. Ministry officials found the Mother in the home bathing the children. She appeared to be sober. But, as noted, a term in the July 28, 2011 Parental Services Agreement prohibited the Mother from being in the home until a parenting plan was

established for her. When the Ministry official advised the Father of this term, he stated that the Parental Services Agreement was “null and void” and that he would not work with the Ministry any further. The Ministry served the Father with an application for a protection hearing on August 23, 2011. However, the children were not apprehended and the application was ultimately withdrawn. [ 29 ] The children remained in the care of the Father until January of 2012. On January 16, 2012, The Ministry and the Regina Police Service received a call from the principal at the six year old’s school.

The principal had noticed a red mark on the six year old’s face that appeared to have been caused by a slap. The police and a Ministry official picked up the four year old from daycare and brought both boys to Regina General Hospital. An official reported on a hearsay basis that, when asked by the doctor about the cause of the marks, the six year old had replied, “My daddy did it.” The children were both apprehended. [ 30 ] The Father and the Mother met with a Ministry official on January 17, 2012. Both agreed to participate in the Ranch Ehrlo Intensive Family Preservation Service Program.

On January 20, the Ministry received confirmation that Ranch Ehrlo would work with the family and the Father and the Mother signed a Parental Services Agreement on that date. Under this Agreement, the boys were to be returned to the Father’s home, provided that the Father and the Mother worked cooperatively with Ranch Ehrlo and with Ministry officials. The Agreement was to run until April 20, 2012.

The boys were returned to the Father’s residence on January 27, 2012. [ 31 ] In the week following the boys’ return to the Father’s residence, several events occurred which ultimately led to the boys being apprehended once again. First, a Ranch Ehrlo therapist witnessed the Mother and the Father having a heated telephone conversation. Second, that same therapist attended the Father’s residence one night after she received a phone call from the Father expressing frustration with the Mother’s handling of the children. She witnessed the Father and the Mother having an agitated argument in front of the children.

She called the Ministry, which decided the Ranch Ehrlo program could not continue given the disharmony in the home. Without the Ranch Ehrlo program, the Ministry concluded that no other safety supports existed for the children and that the only available course of action was to apprehend them once again. [ 32 ] The children were apprehended on February 2, 2012 and an application for a protection hearing was filed on February 6, 2012.

The Father then signed a Support Services Contract with the Ministry, agreeing to receive individual counselling to address his domestic behavior and his relationship with the Mother. This agreement ran until April 30, 2012. The Father signed a second Support Services Contract, with similar terms, which ran from May 1, 2012 to August 31, 2012. Two more Support Services Contracts were signed in September of 2012. One required the Father to continue to receive individual counselling, and one required the Father and the Mother to attend couples’ counselling on a weekly basis.

Both were to run until November 30, 2012. The boys remained in the care of the Ministry during this time. Separate supervised visits were facilitated for the Father and the Mother. [ 33 ] The boys were placed in a foster home in September of 2012, but they were moved back into a transition shelter in November. The six year old had started to exhibit significant negative behavior, and the foster parents were unwilling to continue fostering him.

The Ministry wished to keep both boys together, so both were removed from the foster home. [ 34 ] In October of 2012, the Father and the Mother began to have joint supervised visits with the children. The Mother was living with her father and two of her other children on her home reserve, and the Father was living in a town near the reserve. Discussions began regarding the possibility of the boys being moved to the house where the Mother’s father lived.

Arrangements were made for the boys to spend Christmas at the Mother’s father’s house, but no permanent arrangements were made at that time. [ 35 ] Both Support Services Contracts were renewed in early December 2012, with the contract for couples’ counselling running from December 1, 2012 to January 31, 2013 and the contract for the Father’s individual counselling running from December 1, 2012 to April 30, 2013. [ 36 ] Ministry officials had begun discussing the need for a new protection order in the fall of 2012. By early January 2013, the Father agreed to consent to such an order.

This resulted in a January 16, 2013 order by Justice Dawson. It included 16 conditions imposed on the Father and the Mother. Those conditions reflected the various case plans that Ministry officials had developed with them through the fall of 2012. [ 37 ] In late January 2013, the Father attended the Ministry offices to advise them that he had obtained housing, and that he and the Mother had once again separated because she had started drinking again.

In February of 2013, Ministry officials became aware of the fact that the Father was making inappropriate comments to the children regarding the Mother, including that “mommy had been drinking” and “if she doesn’t stop drinking, then she obviously doesn’t care about you as much.” When Ministry officials tried to talk to the Father about these comments, he became visibly upset. [ 38 ] A number of supervised visits occurred throughout the spring of 2013, with the Father demonstrating some positive parenting behaviour. However, the Ministry decided that the boys should not be returned to the Father’s care.

The January 2013 order of Dawson J. was set to expire in May of 2013, and the Ministry applied for an extension of it. Ministry officials also informed the Father at this time that they would be seeking permanent wardship of the boys. [ 39 ] While the Father had made some progress in his parenting, he continued to struggle with anger issues. One incident in late July of 2013 caused particular concern for Ministry officials. The Father arrived at the Ministry offices in an agitated state, leading Ministry officials to believe that he was suicidal.

He had asked for documents allowing him to sign over all of his rights to a Ministry worker, and he had brought some of the boys’ toys to the office. He began increasingly agitated at the office, and the police were eventually called. The Father was arrested and taken to the hospital for a mental health assessment, but he was eventually released. [ 40 ] This was not the only incident of concern to Ministry officials. On September 4, 2013, the Mother and her father were attending a supervised visit with the boys at the Ministry offices.

The Father also attended the visit, and he became engaged in a verbal conflict with the Mother and her father in front of the boys. The Father and the Mother’s father were removed from the room. As the Mother and her father were standing in the parking lot and preparing to leave the Ministry offices, the Father drove his truck straight at them, narrowly missing the Mother and a Ministry official. He blamed this incident on the fact that he had not taken his anxiety medication that

morning. [ 41 ] The boys stayed in the Ministry’s care until the date of trial. They were moved to a different transition shelter on May 21, 2013, and they remained there until the end of August 2013. At that point, they were placed in a foster home in Regina, where they resided until the trial. [ 42 ] It should be noted that a constant theme of the Ministry’s history with the Father and the Mother has been the involvement of the police. The record discloses numerous incidents where the police were called to respond to allegations of domestic violence or disharmony between the Father and the Mother.

These calls were frequently the result of fights and arguments between the Father and the Mother, often when one or both of them had been drinking. An assault charge was laid against the Father following one of these incidents, but it was ultimately stayed. Despite the frequent involvement of police, no other charges were laid. IV. the protection decision [ 43 ] At the protection hearing, and as noted, the Minister sought an order permanently committing both the six year old and the four year old to his care. Both parents conceded that the boys were in need of protection.

For his part, the Father candidly offered that “there is no way in the world that today, I can look after the babies.” As a result, the issue before the Court was what order to make pursuant to s. 37 of the Act . [ 44 ] For her part, the Mother sought a long-term committal under s. 37(3) with a view to obtaining another chance to overcome her parenting inadequacies. The Father requested an order pursuant to s. 37(1)(

c) temporarily placing the children in the Minister’s care for a period of six months so that he could obtain work and address the protection issues which were troubling the Ministry. [ 45 ] The hearing judge referred to the framework of analysis described in this Court’s decision in S.F. (Re) . He then reviewed both the background and current circumstances of the Father and the Mother. [ 46 ] For reasons which need not concern us here, the hearing judge concluded there was no proper legal basis for the order sought by the Mother.

He went on to conclude that a long-term order of the sort she desired would not be in the best interests of the children in any event. The Mother has not appealed. [ 47 ] In dealing with the Father’s situation, the hearing judge made extended reference to a Parental Capacity Assessment Report prepared by Francis Stewart. Mr. Stewart had administered a number of psychological tests to the Father and had observed him interacting with his boys over the course of a visitation.

He characterized the relationship between the Father and the Mother as being “extremely dysfunctional” and concluded his report by writing as follows: The writer does not question [the father’s] or [the mother’s] love for their children, but the numerous factors outlined in this Assessment Report suggests that ongoing parenting by [the father] and [the mother] is likely to result in placing the children in a continued high-risk environment.

It is this writer’s professional opinion that [the father] and [the mother] are not able to assume the role of parents where they can responsibly, reliably, and effectively care for their two young children. Due to [the father’s] minimization and denial, his lack of responsibility and accountability for the ongoing problems in both his relationship with [the mother] and his repetitive problems in parenting, along with his elevated test scores on the CAPI and PAI, the risk to the children would be substantial if [the father] were allowed to parent his children.

The observation session supported the writer’s opinion that [the father] would continue to present substantial risk to his children. … [emphasis added] [ 48 ] The hearing judge found that the Father’s evidence and demeanour had reinforced Mr. Stewart’s conclusions. He rejected the Father’s claim that he was a changed person and found that, if he was given custody of the children, he would exploit his authority and the Mother’s need to see the children to his own advantage.

The judge concluded it was not in the boys’ best interests to be in the Father’s custody and that, even after a six-month temporary order of the sort requested by the Father, there would be a legitimate and ongoing risk of harm to them. [ 49 ] In the end, the hearing judge ordered that (

a) the boys be permanently committed to the Minister, (

b) the Father’s access to the boys be terminated immediately, and (

c) the Mother be allowed three hours of supervised access per week until such time as the boys were placed for adoption. V. analysis [ 50 ] The Father takes issue with the order made by the hearing judge. His first argument is that he was entitled to the assistance of a lawyer and that, because he conducted the hearing himself, the proceedings were unfair. The Father’s second argument is that the judge erred in concluding the children should be permanently committed to the care of the Minister. I will examine each of these submissions in turn.

A. Was the hearing unfair? [51] The Father’s position on the fairness of the hearing is rooted in the Supreme Court’s decision in New Brunswick (Minister ofHealth and Community Services) v G.(J.), (SCC), [1999] 3 SCR 46 [G.(J.)]. It concerned a situation where theMinister of Health and Community Services had been granted custody of the appellant’s children and sought to have that order extendedby six months. The appellant applied for legal aid but was denied because, at the time, protection applications were not covered by theProvince’s legal aid plan.

As a result, she brought a motion for an order directing the Minister to provide her with sufficient funds tocover the cost of fees and disbursements of counsel. The motions judge was unable to decide the matter before the date set for theprotection application. Duty counsel agreed to represent the appellant pro bono and, consequently, the appellant did have counsel at thehearing. The parties later moved forward with the motion to obtain state-funded counsel even though it was technically moot. [52] The Supreme Court grounded its analysis of the claim to funded counsel on s. 7 of the Charter.

It provides that “Everyone has theright to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles offundamental justice.” The Court found that the Minister’s application to extend the order threatened the appellant’s security of theperson and, more specifically, her psychological integrity.

It then examined the question of what was necessary to satisfy “principles offundamental justice” and concluded that, in the circumstances, this meant a fair hearing was required. [53] The Court went on to say that, for a custody hearing to be fair, a parent must have an opportunity to present his or her caseeffectively. It added that, depending on the complexity of the case and the intelligence, communication skills, composure and experienceof the parent, effective participation could require that the parent be represented by counsel.

The Court said child custody proceedingswere effectively adversarial in nature and that they were sufficiently serious and complex that, in the circumstances before it, theappellant needed to be represented by counsel for there to have been a fair determination of her children’s best interests. [54] At the same time, the Court recognized that the complexity and other characteristics of child protection hearings can varysubstantially from one case to another. As a result, it concluded there was no absolute right to state-funded counsel.

Lamer C.J. said this: 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 counsel whena decision is made affecting that individual’s right to life, liberty, or security of the person. In particular, a parent need not always berepresented 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. [55] In my view, G.(J.) does not control the outcome of this appeal. To begin, the Father was not denied state-funded counsel. TheQueen’s Bench file reveals that, on June 18, 2013, Rod Simaluk, a Regina lawyer, appeared on the Father’s behalf and asked to beappointed by the Court to represent the Father. That order was made and Mr.

Simaluk appeared for the Father at a July 16, 2013 pre-trialconference where hearing dates were set for January 29 to February 7, 2014. At the same time, an interim order was made with respect tothe parents’ access to the children pending trial. [56] Mr. Simaluk withdrew as the Father’s counsel on September 16, 2013. The Queen’s Bench file does not indicate why he withdrewand we know nothing of the efforts, if any, made by the Father to retain new counsel. We do know that, on November 6, 2013,McMurtry J. made a second order granting the Father court-appointed counsel.

Matters were adjourned to November 19, 2013 on theunderstanding the Father would then “report on efforts to find counsel.” [57] The Queen’s Bench file reveals only that, on November 19, the Father was “still trying to find counsel to represent him.” Theproceedings were then adjourned to November 27 for another progress report.

The endorsement for that date says, “[The Father] stilllooking for counsel.” It is apparent from all of this that the Court was keeping a close eye on the fact the Father was unrepresented and,by way of short adjournments, it was no doubt attempting to ensure he pressed forward with the business of replacing Mr. Simaluk. [58] The pre-trial conference reconvened on December 5, 2013. The endorsement for that date states, “[The Father] asks that Mr.Simaluk assist him at trial as a friend of the Court. Ordered that the court appointment of Nov 6/13 applies to Mr.

Simaluk as a friend ofthe Court.” It was explained to us during argument that counsel for the Minister had suggested that, if the Father was having difficultyfinding counsel, he might wish to consider having Mr. Simaluk appointed as an amicus to act as a resource for him. The Father agreedwith this suggestion. He wanted to move forward with the protection hearing. [59] The Father did not attempt to put any evidence before this Court to elaborate on the idea that he had been denied state-fundedcounsel. He did not, for example, explain what he had done in an effort to retain new counsel after Mr.

Simaluk withdrew or explain whyhe was not able to put such arrangements in place. Nor did the Father put forward evidence to suggest that he had felt compelled orpressured to go on with the hearing as scheduled even though he did not have his own lawyer. We are left with the facts that (

a) theFather had been authorized to retain counsel at government expense, (

b) he retained Mr. Simaluk, (

c) Mr. Simaluk withdrew for reasonsunknown, (

d) the Father did not retain new counsel even with the benefit of several adjournments, and (

e) the Father agreed with the ideaof moving on to the hearing on the understanding that Mr. Simaluk would assist him as a friend of the court. [60] At no point in the proceedings, at least in terms of what is revealed by the Queen’s Bench file and the transcripts, did the Fatherever indicate that he felt unable to present his case. Nor did he suggest that he was unprepared or needed an adjournment. And, as well,he has not attempted to present evidence to this effect in this Court.

The closest the Father has come to expressing concerns of this sortwas in his opening statement at the hearing in the Court of Queen’s Bench. He said this: So much has happened in the past two years since the children were apprehended, but I would like it to be on record that during oneof the most important court cases of my children and my life, I remain unrepresented and I take responsibility for some of that.

I believeand I will show this Court with evidence that I am more than a capable father, a loving father, a father that can provide for these children.I intend to show this Court, through evidence, that the past two years dealing with the Ministry, I have learned so much and I believe thatmyself and the mother of our children, has demonstrated that she is trying her very best to be the best mother that she can be, and I thebest father.

All I can do and all I can show this Court is put the best foot forward and explain what has happened in the past two years hasbeen absolutely nothing but growth, and continues to grow each day. Thank you.

[ 61 ] Significantly, Mr. Simaluk did, in fact, assist the Father both in his preparation for the hearing and in his conduct of it. At the very outset of the proceedings, Mr. Simaluk said, “On working on this file, [the Father] and I have talked about what he has to do, issues regarding evidence, the goals, et cetera, et cetera.” Then, throughout the course of the hearing, it is apparent from the transcript that the Father was consulting with Mr. Simaluk on matters like adjournments, procedure and evidence and that, in fact, he was often content to have Mr. Simaluk speak on his behalf, with Mr.

Simaluk often using the term “we” when referring to the Father’s position. Thus, by way of illustration, on the issue of whether a particular letter should be admitted as an exhibit, Mr. Simaluk said, “We take no issue with it” and, when discussing with the judge how long it would take to present the Father’s side of the case, Mr. Simaluk said, “We have, for sure two witnesses, probably three, other than [the Father].” When the Father gave his evidence, it was Mr. Simaluk who led him through his testimony. At the end of the hearing, the Father indicated that he “greatly appreciated the assistance of Mr.

Simaluk … .” In other words, although Mr. Simaluk was not the Father’s counsel, Mr. Simaluk appears to have been of significant strategic and practical assistance to him. [ 62 ] Nonetheless, it was the Father who cross-examined the Minister’s witnesses and who led the evidence of David Elliott, his only witness. No doubt this was not easy for the Father and he said as much in his closing argument. This is not a surprise. The Father is not trained as a lawyer and the proceedings involved personal and emotional subject matter.

That said, the Father did cross-examine each witness put forward by the Minister and he did so with some vigour and often more extensively than did counsel for the Mother. The Father was often reasonably skilful at obliging witnesses to answer questions to which they did not respond directly and he frequently showed good instincts for the key points to be made in cross-examination. For example, in cross-examining Sheri Hoyland, a Ministry official, the Father was able to establish the following: Q And would you say there was any -- in your teaching, was there any improvements or were there negatives?

A I think that you tried the time outs, which was a positive point during our debrief. However, I still feel like there needed to be some work done on it. … Q At any time, were there times when the children were in the home -- were they in any danger whatsoever? A None that I saw; otherwise, I would’ve ended the visit. [ 63 ] By way of further illustration, the Father obtained favourable answers from Darlene Walliser, another official, in this way: Q Can you confirm that you stated that the visit with the boys on May 8th went very well? A Yes, I stated that.

Q Would you be surprised if it was to say that we had testimony in this hearing confirming that fact? A I agree with that. [ 64 ] In addition, it must be noted that the judge was very accommodating of the fact that the Father was not experienced in the business of examining witnesses and leading evidence. He extended considerable latitude to the Father.

For example, rather than requiring some witnesses to give viva voce evidence, the judge allowed reports and letters helpful to the Father to be entered as exhibits and did so notwithstanding that they had been provided by the Father to counsel for the Minister only the day before. As well, David Elliott, the Father’s witness, was allowed to testify by telephone even though there had been no disclosure of what he was going to say and the request came only immediately prior to his giving evidence.

Further, the hearing judge assisted the Father on several occasions by intervening in a cross-examination to help him focus his questions more effectively. All of this helped to somewhat reduce or limit whatever disadvantage the Father might have suffered by virtue of the fact he did not have his own counsel. [ 65 ] One other point is perhaps worthy of mention. The Mother was represented by counsel at the hearing. This was of at least some consequential benefit to the Father on a few points where the Mother’s interests and his interests were aligned.

In other words, the cross- examinations conducted by the Mother’s counsel sometimes also worked to the benefit of the Father. For instance, when the Mother’s counsel had Mr. Stewart—the psychologist—agree that parents could be successfully assisted to overcome problems in disciplining children, Mr. Stewart’s acknowledgement worked to the Father’s advantage as well. [ 66 ] There are two aspects of the hearing where counsel now representing the Father says the Father was particularly disadvantaged. The first was in cross-examining Mr.

Stewart, whose testimony was quoted at some length by the hearing judge in his decision. The Father suggests Mr. Stewart should have been obliged to disclose various background materials relating to the tests he conducted and that he should have been cross-examined more deeply and effectively about his conclusions. [ 67 ] There is no doubt that a skilful lawyer would have examined Mr. Stewart differently than did the Father. Among other things, the Father questioned about matters which were not relevant to the issues faced by the hearing judge. However, he also had Mr. Stewart

acknowledge that the two men had not seen each other in about a year. This was not insignificant given the Father’s overall argumentthat he was a changed man and that his past troubles should be seen as just that—past troubles. The Father also had Mr. Stewart confirmthat he had seen him and his children together for only two and one-half hours in total and he pressed Mr. Stewart about the utility andvalidity of conclusions based on such limited observations. [68] Although it might have been possible to blunt or discredit Mr.

Stewart’s evidence with a more thorough line of cross-examination,this is by no means clear on the face of the material before the Court. The Father has not, for instance, pointed to specific problems orvulnerabilities in Mr. Stewart’s report which could have been revealed by a different kind of cross-examination. He simply asks theCourt to accept that this necessarily would have been the case. I am reluctant to take this leap. Cross-examination is a difficult businessand the cross-examination of an expert is particularly challenging.

It is significant here that the Mother’s counsel, a senior lawyerfamiliar with this sort of case, chose not to seek the sort of disclosure now flagged by the Father and chose not to conduct the sort ofcross-examination the Father now says was essential. [69] The other area where counsel for the Father suggests the Father was disadvantaged relates to the overall focus of the case. Morespecifically, he submits the true questions before the judge very much concerned the future and concerned the Father’s ability to parentthe boys after a six-month temporary order.

But, he submits that the Father fell into the trap, both in cross-examining Ministry witnessesand in presenting his own evidence, of defending his actions in the past. [70] There is little merit in this line of argument. As I read the transcript, the Father understood very clearly his obligation to convincethe judge that, going forward, he would be able to successfully parent the boys.

In his opening statement, he declared that he was “acapable father, a loving father, a father that can provide for these children” and said that “what has happened in the past two years [i.e.since the children were apprehended] has been absolutely nothing but growth, and continues to grow each day.” Similarly, in his closingargument, the Father claimed he was not the same individual as he was when the boys were apprehended. [71] In his cross-examination of Ministry officials, the Father did take issue with many of their observations about his conduct over theyears. But, this was not misguided.

The Father correctly appreciated that, to at least some extent, the judge’s conclusions about hisbehaviour in the past would influence his assessment of the Father’s prospects for the future. The various witnesses called by theMinister testified about what they had seen over the course of their interventions with respect to the boys. The Father contested a gooddeal of what they said. In general terms, I see no mistake or lack of focus in any of that. [72] In his own testimony, the Father commented on the evidence given by a number of Ministry witnesses.

However, as led by Mr.Simaluk, he was also very alert to making the point that, after a six-month temporary order, he would be in a position to successfullyparent the boys. He did this in a number of ways. He said (

a) he was no longer abusing alcohol, (

b) he was not taking illegal drugs, (

c) hewas not involved in any criminal activity, and (

d) he was taking prescription medication which moderated his anger and that there hadbeen no physical violence between him and the Mother since 2011. In more general terms, the Father asserted and emphasized that,starting in 2013, he had changed. He claimed to be “more solid, more understanding” and expressed confidence in his ability to be a goodand loving father.

As a result, I do not accept that the Father’s own evidence was somehow fatally mis-focused on the past, rather thanon his ability to parent in the present and in the future. [73] Further, the Father has not identified, except perhaps in the broadest of generalities, evidence that should have been put before thejudge but was not.

For example, he makes some reference to counselling that took place in 2013 but we have no sense of whether theparticulars of that evidence would have been helpful or not to his cause. [74] The Father agrees that, given the way the protection hearing unfolded, the root issue on this wing of the appeal is not whether heshould have had his own counsel. Rather, it is whether, given that he did not have his own counsel, the hearing was fair.

Taking intoaccount all of the relevant considerations, and given the Father’s failure to identify any concrete instances where a lack of representationmeaningfully harmed his position, I am unable to conclude on the basis of the record before the Court that the protection hearing wasunfair or that there was a miscarriage of justice. B. Did the judge make the wrong order? [75] The Father also submits that, regardless of the fairness of the hearing, the judge below erred by making a permanent order.

Moreparticularly, the Father contends the judge got off track by using the interim protection order of July 13, 2013 as a reference point for hisreasoning rather than the January 16, 2013 order of Dawson J. He also suggests the judge wrongly failed to consider, or inadequatelyconsidered, evidence concerning the Father’s conduct since the January 16, 2013 order and thereby failed to focus on the question of theFather’s ability to parent on a go-forward basis. [76] Before turning directly to these points, it is important to underline that this is an appeal, not a retrial of the protection hearing.

See:Children’s Aid Society of Cape Breton-Victoria v A.M., 2005 NSCA 58 at para 26, 2005 NSCA 58 , 232 NSR (2d) 121. Ingeneral, the standard of review in this kind of proceeding is deferential. W.(C.) v Saskatchewan (Minister of Social Services) (1990), (SK CA), 25 RFL (3d) 308 (Sask CA) is helpful on this point. In that case, Cameron J.A. described the power tomake an order under s. 29 of The Family Services Act, RSS 1978, c F-7 (now repealed but the equivalent of s. 37 of The Child andFamily Services Act) as being essentially discretionary.

He went on to explain the resulting standard of review as follows at p. 309: … accordingly its exercise is not to be interfered with on appeal in the absence of some material failure going to how the power wasexercised. It follows that our function, at the outset at least, is one of review, only, to determine if the trial judge in the exercise of hisdiscretion, erred in law, or disregarded or overlooked some relevant matter, or failed to act judicially. Unless something of that nature ispresent an appellate court cannot properly intervene.

See also: S.F. (Re) at paras. 6-8. [77] With that point made, I return to the substance of the Father’s submission. His first line of argument is that the hearing judge

misapprehended the nature of the question before him. He says the judge should have focused on the January 16, 2013 order of Dawson J. and the conditions contained in it. In order to assess this argument, it is necessary to revisit some of the relevant background. [ 78 ] On January 16, 2013, Dawson J. made an order pursuant to s. 37(1) (

c) of the Act . It placed the Father’s children in the care of the Minister for four months. The order was made with the consent of both the Mother and the Father. It included 16 conditions.

Those conditions were as follows: (1) [The Father] and [the Mother] shall secure safe and stable housing and provide the Ministry with their address and contact information. (2) [The Father] and [the Mother] shall consent to the Ministry being provided information from all service providers involved in case planning, including counselors, cultural advisors, medical practitioners, and provincial labs. (3) [The Father] and [the Mother] shall abstain from alcohol and drug use. (4) [The Father] and [the Mother] shall not use physical means of discipline with the children. (5) [The Father] and [the Mother] shall not expose the children to domestic violence or domestic disharmony, including yelling, swearing, screaming, threatening, verbal abuse or physical violence. (6) [The Father] and [the Mother] shall develop an alcohol abuse relapse prevention plan, which may include involvement with cultural ceremonies, meeting with an elder, or other treatment options. (7) [The Mother] shall complete drug and alcohol screens at the request of the Ministry. (8) [The Father] and [the Mother] shall complete a parenting capacity assessment with Francis Stewart and follow through with any and all recommendations for treatment or therapy. (9) [The Father] and [the Mother] shall participate in counseling to address relationship issues, including, but not limited to: co- dependency, trust, self esteem, domestic disharmony, and communication skills. (10) [The Father] and [the Mother] shall engage in a parenting program to develop knowledge related to age appropriate behaviors, expectations, and healthy child behavior management techniques. (11) [The Father] and [the Mother] shall demonstrate use of appropriate parenting skills such as non-violent methods of discipline, boundary setting, and establishing routine and healthy communication. (12) [The Father] and [the Mother] shall work with a parent aide for further education, direction and support related to practicing healthy parenting skills. (13) [The Father] and [the Mother] shall have, at a minimum, two 3 hour supervised visits per week.

(14) Supervised visits in [The Father] and [the Mother’s] home shall commence once housing is secured, and shall be a minimum of once per week.

(15) Unsupervised visits may commence by the end of the first month of the order, provided such visits are in the best interests of the children. A parent aide shall supervise a minimum of five to eight home visits prior to unsupervised visits occurring.

(16) Visits may progress to overnight and further extended visits by the end of the second month, provided such visits are in the best interests of the children.

[ 79 ] On May 28, 2013, and on the basis that the Father and the Mother had not complied with all of the conditions of the January 16 order, the Ministry applied for an extension of the order. On July 13, 2013, there was an “Interim Order Before Trial.” It provided as follows: 1. The children, [J.B.B.#l] and [J.B.B.#2], shall remain in the care of the Minister of Social Services pursuant to

Section 35 (l)(

c) of The Child and Family Services Act . 2. [The Father] and [the Mother] shall each have one three (3) hour supervised visit per week with the children. Each parent may attend the other parent’s supervised visit if the other parent agrees to the same. 3. Additional conditions: a) [The Mother] shall supply drug screens at the request of the Ministry;

b) The Ministry shall continue to provide referrals to counseling and programming to [the Father] and [the Mother]. 4. This order shall remain in force until determination of the protection hearing, or further order of the Court. [ 80 ] In his reasons for decision, the hearing judge referred only to the July 13, 2013 order and did so in the context of stating that the purpose of the proceedings before him was to review the status of the two boys and to evaluate whether there was need for a further order to ensure their protection.

The Father suggests this was an error and that the judge should have focused on whether he had complied with the conditions specified in the January 16, 2013 order. He also contends that he had satisfied each of the conditions. [ 81 ] It would have been helpful if the hearing judge had examined somewhat more expressly the extent to which the Father had complied with the January 16, 2013 order. This might have been a useful way, in part, to analyze the question of what sort of protection order was appropriate. However, the judge’s decision not to take this approach was by no means fatal.

This is because the question before him was not whether the Father had complied with the January 16 (or any other other) order. The question, as per s. 38(8) of the Act , was whether (

a) the children continued to be in need of protection, and (

b) if so, what sort of order should be made. Given that the Father and the Mother both conceded the children were in need of protection, the only practical question before the judge was the one concerning the nature of the order he should make. [ 82 ] On this latter point, the Father rightly conceded during argument that the issue of whether the children should be permanently committed to the Minister was not one which could be answered simply by confirming compliance with the January 16, 2013 order.

In other words, the conditions specified in the order were not some sort of checklist which, if satisfied, would see the children returned to the Father. The protection question was substantially more complicated and subtle than that. As a result, the hearing judge’s failure to work through the January 16, 2013 conditions item by item was not, in itself, a significant error. [ 83 ] I should underline here that this is not a case like S.F. (Re) .

There, this Court found that a Queen’s Bench judge had erred by retrying the original order finding children in need of protection, rather than evaluating the need for a further order. The hearing judge in this case accepted what had gone before by way of orders and, indeed, he had no reason to question them because both the Father and the Mother conceded the boys were in need of protection.

The judge quite correctly outlined the framework which governed his analysis by quoting para. 23 of this Court’s decision in S.F. (Re) and then proceeding accordingly. [ 84 ] I also note that, in any event, while the Father apparently did comply with a number of the conditions in the January 16, 2013 order, he did not comply with all of them. For example, he undertook to abstain from alcohol use but testified that, a week before the hearing, he had split a case of 12 beer with the Mother. The Father also undertook not to expose the children to domestic violence, including yelling, screaming and so forth.

However, Courtney MacDougall, a Ministry official, described a visit with the children in early September of 2013 where the Father had a verbal conflict with the Mother’s father and others. He used inappropriate language in front of the boys and ended up scraping his truck along the side of a vehicle driven by the Mother’s father and in which the Mother herself was a passenger. [ 85 ] As noted, the real question at the protection hearing in this case was not whether the Father had complied with the January 16 order. It was whether a temporary order pursuant to s. 37(1) (

c) of the Act or a permanent order pursuant to s. 37(2) was most appropriate. The hearing judge considered the evidence placed before him and did so in the context of the correct analytical framework.

Given the governing standard of review, I see no grounds for interfering with his decision on the basis that he did not comment expressly on whether the Father had complied with the various terms of the January 16, 2013 order or did not ground his analysis on that order. [ 86 ] The Father’s other criticism of the decision of the hearing judge is that the judge did not take account of matters post-January 2013 and, instead, focused on the Father’s past.

He argues the judge thereby failed to assess whether the Father presently was, or after a six- month temporary order would be, in a position to parent his children. In my view, this is not an accurate characterization of the approach taken by the hearing judge. [ 87 ] There are many points in the judge’s decision where he referred to events or situations after January of 2013. For example, at para. 6 of his decision, he said the evidence had established that the Father was not using drugs and had not used illicit or non-prescription drugs since the date of the last order.

He also observed that there was no evidence of serious misuse of alcohol since the July 2013 order. Further, the judge commented that the Father was continuing to taunt the Mother by inviting her to his apartment to drink. At para. 9, the

judge concluded the boys were no longer fearful of the Father. At para. 13, the judge recounted the Father’s views about his present situation, including the facts that he was taking medication and felt he had overcome most of his anxiety attacks and depression. At para. 14, the judge reviewed the Father’s future plans with respect to his relationship with the Mother. The heart of the hearing judge’s analysis, at paras. 38 to 40 of his decision, is self-evidently concerned with the Father’s current and future parenting capacity. [ 88 ] In

summary, the hearing judge focused, and focused appropriately, on the Father’s parenting prospects going forward. He did not refer expressly to each and every piece of evidence touching on that question but he had no obligation to do so. In my view, the judge did not improperly limit himself to the evidence concerning the Father’s past and, as a consequence, I am unable to accept the Father’s argument on this point. VI. conclusion [ 89 ] There is no suggestion here that the Father does not love his children. No doubt he does. However, that is not what this appeal is about.

The issues here are whether the protection hearing was unfair and whether the order in dispute was wrongly made. As explained above, the Father’s arguments on those points cannot succeed. As a result, his appeal must be dismissed. There will be no order with respect to costs. DATED at the City of Regina, in the Province of Saskatchewan, this 31st day of December, A.D. 2014. “Richards C.J.S.” Richards C.J.S. I concur “Richards C.J.S.” for Ottenbreit J.A. as per authorization I concur “Herauf J.A.” Herauf J.A.