Manager of Child, Youth and Family Services, Zone E (Nfld. and Lab.) v. J.T. et al., (2015) 371 Nfld. & P.E.I.R. 84 (NLCA)

• Judge: Green, C.J.N.L., Welsh and Hoegg, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: December 10, 2014
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 371 Nfld. & P.E.I.R. 84 (NLCA);2015 NLCA 55

CFS v. J.T. (2015), 371 Nfld. & P.E.I.R. 84 (NLCA);

    1156 A.P.R. 84

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. DE.002

J.T. (appellant) v. Manager of Child, Youth and Family Services, Zone E (first respondent) and D.L. (second respondent)

(13/85; 2015 NLCA 55)

Indexed As: Manager of Child, Youth and Family Services, Zone E (Nfld. and Lab.) v. J.T. et al.

Newfoundland and Labrador Supreme Court

Court of Appeal

Green, C.J.N.L., Welsh and Hoegg, JJ.A.

November 26, 2015.

Summary:

The Manager of Child, Youth and Family Services (Nfld. and Lab.) applied for an order of continuous custody respecting three children, aged six, four and three.

The Newfoundland and Labrador Supreme Court, Trial Division (Family), in a decision reported 341 Nfld. & P.E.I.R. 47; 1061 A.P.R. 47, granted the order. The children's mother (J.T. or appellant) appealed. At issue on appeal was: (1) whether the trial judge made errors in principle or made palpable and overriding errors of fact in exercising her discretion not to make a further temporary custody order in respect of all or some of the children, instead of making a continuous custody order; (2) whether the appellant should be allowed to raise a Charter issue on appeal even though she did not make the argument at trial; and (3) if the answer to issue (2) was in the affirmative, whether the legislative restriction in s. 32(6)(a) of the Children and Youth Care Protection Act prohibiting attaching conditions, in particular access conditions, to a continuous custody order was in violation of s. 7 of the Charter and if so, whether the provision was nevertheless saved by section 1.

The Newfoundland and Labrador Court of Appeal came to the result quoted below. The court rendered three separate opinions, with Welsh, J.A., dissenting in part and in the result.

"1. The trial judge did not err in the exercise of her discretion to make a continuous custody order for each of the three children;

"2. The appellant is granted leave to make submissions on appeal that section 32(6)(a) of the Children and Youth Care and Protection Act violates section 7 of the Canadian Charter of Rights and Freedoms;

"3. It is declared that section 32(6)(a) of the said Act violates section 7 of the Charter and is not saved by section 1. It is therefore of no force and effect insofar as it purports to preclude the ability of a judge acting under the Act to grant access to a child in need of protection when making a continuous custody order and to attach conditions incidental to such access order, when the judge determines it is in the best interests of the child to do so;

"4. J.T. shall have access to her three children and they shall have access to her subject to the following conditions:

(a) access shall be once each week and in addition, on each of the children's birthdays (or the day prior) and for half a day during both the Christmas and Easter holidays;

(b) J.T.'s counselling with [C.M.] shall continue and be expanded to include counselling for signs and symptoms of child sexual abuse. Should [C.M.] consider herself unqualified or unable to counsel J.T. for signs and symptoms of child sexual abuse, she shall make the necessary referral for J.T. to another counsellor;

(c) The Manager shall provide J.T. all the support reasonably necessary for them to transport, entertain, feed and care for the children during any access visits, and with respect to D.L., during any access visits that the Manager is prepared to allow;

(d) Wherever reasonably possible, the children's access to J.T. shall be in her own home.

"5. J.T. and the Manager have leave to apply to the Family Division for variation of any of the conditions listed in paragraph 4 based on events that have occurred since the conclusion of the original continuous custody hearing;

"6. There is no order as to costs."

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law (in this case, the Children and Youth Care and Protection Act, S.N.L. 2010, c. C-12.2, s. 52), publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 1206.4

Security of the person - General - Custody and access (incl. child protection) - [See second Guardian and Ward - Topic 816 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - [See second Guardian and Ward - Topic 816 ].

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - The Manager of Child, Youth and Family Services (Nfld. and Lab.) obtained an order of continuous custody respecting three children - The mother appealed - She sought to argue, for the first time on appeal, that s. 32(6)(a) of The Children and Youth Care and Protection Act, insofar as it prevented a court from imposing conditions in a continuous custody order, violated s. 7 of the Charter - The Newfoundland and Labrador Court of Appeal allowed the mother to raise the Charter arguments on appeal - See paragraphs 5, 77 to 81 and 111.

Family Law - Topic 2001.3

Custody and access - Access - Access to children under guardianship order - [See both Guardian and Ward - Topic 816 ].

Guardian and Ward - Topic 816

Public trustee or guardian - Appointment - Child or adult in need of protection - Permanent appointment - Family Services sought a continuous custody order respecting three young children who had been subject to temporary custody orders - The mother, who had supervised access, wanted the children returned to her - The mother was 24 and the father 40 - Chronic cycles of domestic violence - The mother ultimately withdrew from her relationship with the father, but became involved with another man who was a concern for Family Services - Mother suffered from post-traumatic stress disorder - Mental health issues - No family support - No social network - Had been unemployed, but took training and found a job - Difficult childhood - Traumatic experiences affected the mother's ability to parent - Attempts at reintegration failed - Admitted recent drug use - Children had no stability - The applications judge granted a continuous custody order - The children's mother appealed - The Newfoundland and Labrador Court of Appeal held that the applications judge did not err in exercising her discretion in refusing a further temporary custody order in favour of a continuous custody order - See paragraphs 4, 104, 110 and 204.

Guardian and Ward - Topic 816

Public trustee or guardian - Appointment - Child or adult in need of protection - Permanent appointment - At issue on appeal was whether the legislative restriction in s. 32(6)(a) of the Children and Youth Care Protection Act prohibiting attaching conditions, in particular access conditions, to a continuous custody order was in violation of s. 7 of the Charter - The Newfoundland and Labrador Court of Appeal declared that s. 32(6)(a) violated s. 7 of the Charter and was not saved by section 1 - Section 36(2)(a) was, therefore, of no force and effect insofar as it purported to preclude the ability of a judge acting under the Act to grant access to a child in need of protection when making a continuous custody order and to attach conditions incidental to such access order, when the judge determined it was in the best interests of the child to do so - See paragraphs 6 to 49, 82 to 109, 130 to 204.

Guardian and Ward - Topic 825.3

Public trustee or guardian - Appointment - Access - [See both Guardian and Ward - Topic 816 ].

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised (incl. new theory of case) - [See Civil Rights - Topic 8584 ].

Cases Noticed:

Child and Family Services of Winnipeg Central v. K.L.W. et al., [2000] 2 S.C.R. 519; 260 N.R. 203; 150 Man.R.(2d) 161; 230 W.A.C. 161; 2000 SCC 48, refd to. [para. 7].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 8].

R.A., Re, 2002 YKTC 28, refd to. [para. 8].

C.P.L., Re (1988), 70 Nfld. & P.E.I.R. 287; 215 A.P.R. 287 (Nfld. U.F.C.), affd. (1993), 112 Nfld. & P.E.I.R. 148; 350 A.P.R. 148 (Nfld. C.A.), leave to appeal dismissed (1995), 186 N.R. 78; 136 Nfld. & P.E.I.R. 1; 423 A.P.R. 1 (S.C.C.), refd to. [para. 8].

Director of Child, Youth and Family Services (Nfld. and Lab.) v. L.F. et al. (2013), 336 Nfld. & P.E.I.R. 214; 1043 A.P.R. 214; 2013 NLCA 27, refd to. [para. 10].

Eve, Re, [1986] 2 S.C.R. 388; 71 N.R. 1; 61 Nfld. & P.E.I.R. 273; 185 A.P.R. 273, refd to. [para. 14].

Eve v. Mrs. E. - see Eve, Re.

Harriet Sophia Rutherford, In Re (1861), 4 Nfld. L.R. 589, refd to. [para. 14].

McGirr, In Re (1891), 7 Nfld. L.R. 560, refd to. [para. 14].

Hutchings, Re (1976), 9 Nfld. & P.E.I.R. 438; 12 A.P.R. 438; 71 D.L.R.(3d) 356 (Nfld. C.A.), refd to. [para. 14].

MacMillan Bloedel Ltd. v. Simpson et al., [1995] 4 S.C.R. 725; 191 N.R. 260; 68 B.C.A.C. 161; 112 W.A.C. 161, refd to. [para. 15].

Ordon et al. v. Grail, [1998] 3 S.C.R. 437; 232 N.R. 201; 115 O.A.C. 1, refd to. [para. 15].

Clift v. Holdsworth (1819), 1 Nfld. L.R. 167, refd to. [para. 15].

Nouveau-Brunswick (Ministre de la Santé et des Services communautaires) v. M.L. et R.L., [1998] 2 S.C.R. 534; 230 N.R. 201; 204 N.B.R.(2d) 1; 520 A.P.R. 1, refd to. [para. 24].

Director of Child and Family Services (Man.) v. A.C. et al., [2009] 2 S.C.R. 181; 390 N.R. 1; 240 Man.R.(2d) 177; 456 W.A.C. 177; 2009 SCC 30, refd to. [para. 34].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 37].

Bedford et al. v. Canada (Attorney General), [2013] 3 S.C.R. 1101; 452 N.R. 1; 312 O.A.C. 53; 2013 SCC 72, refd to. [para. 39].

Carter et al. v. Canada (Attorney General) et al., [2015] 1 S.C.R. 331; 468 N.R. 1; 366 B.C.A.C. 1; 629 W.A.C. 1; 2015 SCC 5, refd to. [para. 39].

K.P. et al. v. Eastern Regional Integrated Health Authority et al. (2009), 288 Nfld. & P.E.I.R. 37; 888 A.P.R. 37; 2009 NLCA 42, refd to. [para. 46].

K.P. v. Newfoundland & Labrador (Child, Youth & Family Services) - see K.P. et al. v. Eastern Regional Integrated Health Authority et al.

Director of Child, Youth and Family Services, Health and Community Services Board (St. John's) v. J.F. et al. (2006), 259 Nfld. & P.E.I.R. 296; 781 A.P.R. 296; 2006 NLCA 35, refd to. [para. 72].

Fowler et al. v. Atlantic Developments Inc. (2013), 342 Nfld. & P.E.I.R. 189; 1064 A.P.R. 189; 2013 NLCA 58, refd to. [para. 78].

R. v. D.B., [2008] 2 S.C.R. 3; 374 N.R. 221; 237 O.A.C. 110; 2008 SCC 25, refd to. [para. 86].

J.B., Re (2000), 195 Nfld. & P.E.I.R. 44; 586 A.P.R. 44 (Nfld. C.A.), refd to. [para. 93].

Beson et al. v. Director of Child Welfare (Nfld.) et al., [1982] 2 S.C.R. 716; 44 N.R. 602; 39 Nfld. & P.E.I.R. 246; 111 A.P.R. 246, refd to. [para. 93].

D.B. v. Newfounland (Director of Child Welfare) - see Beson et al. v. Director of Child Welfare (Nfld.) et al.

Manager of Child, Youth and Family Services (Nfld. and Lab.) v. A.B. et al. (2013), 333 Nfld. & P.E.I.R. 132; 1034 A.P.R. 132; 2013 NLTD(F) 1, refd to. [para. 97].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, refd to. [para. 100].

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1, refd to. [para. 133].

R.B. v. Children's Aid Society of Metropolitan Toronto - see Sheena, B., Re.

R.T., Re (2004), 259 Sask.R. 122; 248 D.L.R.(4th) 303; 2004 SKQB 503, refd to. [para. 140].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 146].

Charkaoui, Re, [2008] 2 S.C.R. 326; 376 N.R. 154; 2008 SCC 38, refd to. [para. 194].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 196].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 197].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 48]; sect. 7 [para. 1].

Children and Youth Care and Protection Act, S.N.L. 2010, c. C-12.2, sect. 8 [para. 34]; sect. 9 [para. 21]; sect. 32 [para. 59]; sect. 32(6)(a) [para. 2 et seq.]; sect. 33(1) [para. 60]; sect. 33(2) [para. 64]; sect. 39 [para. 61]; sect. 39(4) [para. 30].

Children's Law Act. R.S.N.L. 1990, c. 13, sect. 27(2) [para. 30].

Counsel:

Lori Savory, for the appellant;

Jacqueline Pelletier, for the first respondent;

Shelley Senior, for the second respondent.

This appeal was heard on December 10, 2014, before Green, C.J.N.L., Welsh and Hoegg, JJ.A., of the Newfoundland and Labrador Court of Appeal. On November 26, 2015, the following decision was delivered and the following opinions were filed:

Green, C.J.N.L. - see paragraphs 1 to 52 and 204;

Welsh, J.A., (dissenting in part) - see paragraphs 53 to 109;

Hoegg, J.A. - see paragraphs 110 to 203.