L.D. et al. v. J.B. et al., (2012) 549 A.R. 58 (QB)

• Judge: Jerke, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 23, 2012
• Citations: (2012), 549 A.R. 58 (QB);2012 ABQB 693

L.D. v. J.B. (2012), 549 A.R. 58 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. DE.013

L.D. and T-L.D. (appellants) v. J.B., K.C., and Alberta (Child, Youth and Family Enhancement Act, Director)

(respondents)

(FL08 00653; 2012 ABQB 693)

Indexed As: L.D. et al. v. J.B. et al.

Alberta Court of Queen's Bench

Judicial District of Medicine Hat

Jerke, J.

November 7, 2012.

Summary:

L.D.'s child was apprehended and a temporary guardianship order was granted. J.B. and his mother, K.C., were granted permanent guardianship. L.D. filed an appeal and applied for state-funded counsel on the appeal.

The Alberta Court of Queen's Bench dismissed the application.

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, publication ban, Maritime Law Book's editorial policy or otherwise.

Editor's Note: An appeal from this decision was dismissed. See (2013), 553 A.R. 188; 583 W.A.C. 188.

Civil Rights - Topic 1206.4

Security of the person - General - Custody and access (incl. child protection) - [See second Civil Rights - Topic 4633 ].

Civil Rights - Topic 1210

Security of the person - General - Denial of security - What constitutes - [See second Civil Rights - Topic 4633 ].

Civil Rights - Topic 4633

Right to counsel - Appointment of counsel by the court or the state - Where party impecunious - The Alberta Court of Queen's Bench stated that an appellant parent might be entitled to be represented by state-funded counsel on an appeal from a private guardianship order if three threshold requirements were met: (1) the parent's life, liberty or security were at stake as a result of government action; (2) the appeal was meritorious; and (3) the parent had exhausted all other avenues for obtaining counsel - A court could then order state-funded counsel after considering the seriousness of the interests at stake, the complexity of the proceedings and the parent's capacities - See paragraphs 14 to 24.

Civil Rights - Topic 4633

Right to counsel - Appointment of counsel by the court or the state - Where party impecunious - L.D.'s child was apprehended and a temporary guardianship order was granted - J.B. and his mother, K.C., were granted permanent guardianship - L.D. filed an appeal and applied for state-funded counsel on the appeal - She had been denied legal aid - The Alberta Court of Queen's Bench dismissed the application - To be successful, L.D. had to establish that her life, liberty or security were at stake as a result of government action - Although the appeal was from a private guardianship order, the private guardianship application only arose after the child was apprehended by the Director under the Child, Youth and Family Enhancement Act - The Director's involvement had continued throughout the proceedings - The state was still characterizing L.D. as an unfit parent and had the power to prevent her from regaining custody of her child - L.D. had met the threshold requirement that her life, liberty or security were at stake as a result of government action - See paragraphs 25 to 33.

Courts - Topic 1403.1

Administration - General - Court fees - L.D.'s child was apprehended and a temporary guardianship order was granted - J.B. and his mother, K.C., were granted permanent guardianship - L.D. filed an appeal and applied for state-funded counsel on the appeal - L.D. argued that, even if she was not successful in obtaining state-funded counsel, the state should be compelled to pay her transcript fees - The Alberta Court of Queen's Bench, having dismissed the application for state-funded counsel, held that, as there was no automatic right to state-funded transcripts and L.D. had failed to show that her appeal was meritorious, the funding application for transcripts was dismissed - See paragraphs 63 to 67.

Courts - Topic 1765

Powers - Appointment of counsel - To represent parent in protection proceedings - [See both Civil Rights - Topic 4633 ].

Guardian and Ward - Topic 215

Appointment and qualifications of guardian - Of children - Jurisdiction (incl. who may apply) - L.D.'s child was apprehended and a temporary guardianship order was granted - J.B. and his mother, K.C., were granted permanent guardianship - L.D. filed an appeal and applied for state-funded counsel on the appeal - The Alberta Court of Queen's Bench dismissed the application - To be successful, L.D. had to establish that the appeal had merit - An issue at trial related to the fact that, when J.B. and K.C. initially applied for guardianship, J.B. was assumed to be the child's father - It was later shown that he was not - Under s. 23(5) of the Family Law Act, an applicant who was not a parent had to have had care and control of the child for more than six months - J.B. and K.C. had not - Under s. 23(5)(b), the requirement could be waived where there were "good and sufficient reasons" for doing so - The trial judge waived the requirement - L.D.'s argument that s. 23(5)(b) meant that the court could only shorten the requirement, not dispense with it entirely, raised an issue of law for which the standard of review was correctness - However, on a plain and ordinary reading of the section, her argument had no hope of success - Further, once the requirement was waived, J.B. and K.C. had standing to apply for guardianship - As a whole, the appeal lacked merit - See paragraphs 34 to 58.

Guardian and Ward - Topic 363

Appointment and qualifications of guardian - Practice - Application for private guardianship - Time for or when available - [See Guardian and Ward - Topic 215 ].

Cases Noticed:

R. v. R.J.H. (2006), 405 A.R. 231; 2006 ABQB 656, refd to. [para. 5, footnote 1].

R. v. Rowbotham et al. (1988), 25 O.A.C. 321 (C.A.), refd to. [para. 15].

R. v. Fisher, 1997 CarswellSask 821 (Q.B.), refd to. [para. 15].

R. v. Morehouse, 2005 ABCA 336, refd to. [para. 16].

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. 17].

R.A.F. v. Saskatchewan (Minister of Justice) et al. (2003), 240 Sask.R. 95; 2003 SKQB 507, refd to. [para. 20].

L.K.D. et al. v. J.B. et al., [2012] A.R. Uned. 22; 2012 ABCA 72, refd to. [para. 28].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 36].

MacKinnon v. Harrison (2011), 519 A.R. 132; 539 W.A.C. 132; 2011 ABCA 283, refd to. [para. 36].

O.V.E. v. I.P.E., [2011] A.R. Uned. 787; 2011 ABQB 758, refd to. [para. 36].

R.K. et al. v. Director of Child, Youth and Family Enhancement (Alta.) (2008), 438 A.R. 238; 2008 ABPC 25, refd to. [para. 53].

P.M. v. S.L.D. (2007), 414 A.R. 95; 2007 ABQB 99, refd to. [para. 54, footnote 3].

T.W. et al. v. Director of Child, Youth and Family Enhancement (Alta.) et al. (2009), 446 A.R. 339; 442 W.A.C. 339; 2009 ABCA 25, refd to. [para. 54, footnote 3].

A.F., Re - see T.W. et al. v. Director of Child, Youth and Family Enhancement (Alta.) et al.

R. v. Robinson; R. v. Dolejs (1989), 100 A.R. 26 (C.A.), refd to. [para. 64].

Toronto-Dominion Bank v. Beaton (2012), 534 A.R. 132; 2012 ABQB 125, refd to. [para. 65].

Statutes Noticed:

Family Law Act, S.A. 2003, c. F-4.5, sect. 23(5) [para. 49].

Counsel:

Genevieve Magnan (Magnan Law Office), for the applicants;

Jonathan P. Tieman (Bolton Bishop), for the Legal Aid Society of Alberta;

Peter Barber (Alberta Justice - Civil Litigation), for the intervener, the Attorney General of Alberta.

This application was heard on May 23, 2012, by Jerke, J., of the Alberta Court of Queen's Bench, Judicial District of Medicine Hat, who delivered the following memorandum of decision on November 7, 2012.