R.Q. v. M.B.W., 2015 NLCA 28

• Judge: Green, C.J.N.L., Welsh and Hoegg, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: June 06, 2014
• Jurisdiction: Newfoundland and Labrador
• Citations: 2015 NLCA 28;(2015), 367 Nfld. & P.E.I.R. 130 (NLCA)

R.Q. v. M.B.W. (2015), 367 Nfld. & P.E.I.R. 130 (NLCA);

      1147 A.P.R. 130

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. MY.040

M.B.W. (appellant) v. R.Q. (respondent)

(14/34; 2015 NLCA 28)

Indexed As: R.Q. v. M.B.W.

Newfoundland and Labrador Supreme Court

Court of Appeal

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

June 6, 2014 and May 29, 2015.

Summary:

The case involved a parental dispute as to custody and access of their 14 year old child. The father made allegations of parental alienation by the mother. The issue of child representation arose in the context of case management and trial readiness preparation. The mother appealed an order made by a case management and trial readiness judge that purported to revoke a previous child representation order made by another case management judge several months earlier.

The Newfoundland and Labrador Court of Appeal granted leave to appeal but dismissed the appeal. The Court addressed the scope of the powers of a case management judge and a trial readiness judge and, in particular, whether those powers encompassed the authority to deal with the issue of legal representation of a child. The analysis also engaged the question of the degree, if at all, to which such a judge might revisit and vary a previous child representation order and the factors to be considered in making such a decision.

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.

Family Law - Topic 980

Husband and wife - Actions between husband and wife - Practice - Case management - The Newfoundland and Labrador Court of Appeal considered the scope of the powers of a case management judge and a trial readiness judge pursuant to the Family Law Rules; in particular, whether those powers encompassed the authority to deal with the issue of legal representation of a child - The Rules did not explicitly deal with the appointment of counsel for a child - To determine the issue, the Court considered the scope of a case management or trial readiness hearing, whether during such hearings the inherent jurisdiction of the court to control its own process might also be exercised and whether making a representation order fell within that ambit - Rules 56A.02(4) and (5) were also relevant: "these provisions reinforce the idea that case management and trial readiness inquiries are expected to be conducted in a functional and business-like manner and, in the words of rule 56A.02(5), 'as informally as the circumstances of the case permit.'" - In the end result, the Court concluded that "I see no reason in principle why the issue of child representation should not be dealt with at case management or trial readiness inquiries. Exclusion is not mandated by the express words or any implication from the applicable rules governing case management or trial readiness." - See paragraphs 22 to 38.

Family Law - Topic 980

Husband and wife - Actions between husband and wife - Practice - Case management - The case involved a parental dispute as to custody and access - The mother appealed an order made by the trial readiness judge that purported to revoke a previous child representation order made by a case management judge several months earlier - The Newfoundland and Labrador Court of Appeal stated that "where circumstances change in a material respect that affects the suitability of the previous order with respect to the proper continuing management of the trial, a case management judge has the authority to reverse or modify the previous order to ensure that it continues to be appropriate for the management of the trial as it is developing. This authority is recognized in rule 15.08(a) which contemplates a party being able to apply 'for the reversal or variation of an order on the ground of a matter arising or discovered subsequent to the making of the order.'" - See paragraph 70.

Family Law - Topic 980

Husband and wife - Actions between husband and wife - Practice - Case management - [See third Family Law - Topic 2095 ].

Family Law - Topic 1913

Custody and access - Appeals - Leave to appeal - The case involved a parental dispute as to custody and access - The mother appealed an order made by the trial readiness judge that purported to revoke a previous child representation order made by a case management judge several months earlier - The Newfoundland and Labrador Court of Appeal, in granting leave to appeal, stated that "[t]he Order in issue in this appeal is interlocutory in nature because it does not decide the 'real matter in dispute between the parties' ... . Leave to appeal is therefore required: rule 57.02(1)(a). In my view, leave is justified because of the importance of resolving the issues presented: whether a case management judge may make an order respecting child representation and, if so, whether a subsequent order can be made by a judge of co-incident jurisdiction revoking or varying the previous order. These issues have not been dealt with by this Court before. Their resolution may be of assistance in clarifying the scope of case management procedures in the family context. There is also some confusion as to the scope and application of this Court's decision in Chafe v. Henley, 2003 ... . Accordingly, I would grant leave under rules 57.02(4)(c) and (e)." - See paragraphs 19 and 20.

Family Law - Topic 2095

Custody and access - The hearing - Counsel - Representation of child's interests - The issue of child representation arose in the context of case management and trial readiness preparation - The Newfoundland and Labrador Court of Appeal, in addressing the principles applicable to making a child representation order, set out some of the matters which a court should consider in appointing legal representation for a child - All of those matters might not be able to be definitively determined when the issue of legal representation was first considered, and there "may have to be further returns to the issue to better define the process, in the light of other developments. The important point, however, is that these matters will have to resolved at some appropriate point before the process of appointment can be said to be completed." - See paragraphs 40 to 47.

Family Law - Topic 2095

Custody and access - The hearing - Counsel - Representation of child's interests - The Newfoundland and Labrador Court of Appeal, in addressing the principles applicable to making a child representation order, stated that "allegations of parental alienation may be an important factor in themselves in determining whether the appointment of counsel would be helpful and, if so, in what capacity" - See paragraph 48.

Family Law - Topic 2095

Custody and access - The hearing - Counsel - Representation of child's interests - The case involved a parental dispute as to custody and access with respect to a 14 year old child - The father made allegations of parental alienation by the mother - The mother sought separate legal representation for the child - A child representation order made by Fry, J. (case management judge) stated that "Should the Child wish to consult with legal counsel then the Child may engage legal counsel." - Legal Aid rejected the mother's application for publicly-funded counsel - Subsequently, the psychological assessment report ordered by Fry, J., was filed, alleging parental alienation by the mother - LeBlanc, J. (case management and trial readiness judge) ruled that, in the child's best interests, based on the changed circumstances, it was not appropriate to make the appointment of counsel in advance of trial - A significant factor was the urgency of the parental alienation issue - The mother appealed - The Newfoundland and Labrador Court of Appeal, in dismissing the appeal, concluded that: "1. A case management judge and a trial readiness inquiry judge are not precluded from making a child representation order in an appropriate case, but, as a general rule, such an issue will usually be better dealt with by way of a separate application; 2. Fry J.'s Order was not appealed and is therefore not capable of being varied on this appeal; 3. LeBlanc J., sitting as a case management judge and as a trial readiness inquiry judge, had the jurisdiction and authority to make an order affecting legal representation of the child; 4. LeBlanc J. had the legal authority to revoke or vary the previous Order of Fry J.; 5. This Court should not interfere with LeBlanc J.'s exercise of discretion in modifying the Order of Fry J. and in declining to delay the scheduled trial date." - See paragraph 77.

Infants - Topic 6044

Legal proceedings - Jurisdiction - Common law or inherent jurisdiction of courts (parens patriae) - [See first Family Law - Topic 980 ].

Practice - Topic 37

Actions - Conduct of - General - Case management - [See first Family Law - Topic 980 ].

Practice - Topic 5780

Judgments and orders - Interlocutory or interim orders or judgments - Stay, revocation or variation of - [See third Family Law - Topic 2095 ].

Practice - Topic 8875.1

Appeals - Leave to appeal - From case management or pre-trial orders - [See Family Law - Topic 1913 ].

Cases Noticed:

Newfoundland Government Fund Ltd. v. Hickman et al. (2008), 287 Nfld. & P.E.I.R. 13; 885 A.P.R. 13; 2008 NLCA 56, refd to. [para. 19].

Chafe v. Henley (2003), 231 Nfld. & P.E.I.R. 264; 686 A.P.R. 264; 2003 NLCA 57, consd. [paras. 20, 30 et seq.].

McCarthy v. Ivany (2013), 338 Nfld. & P.E.I.R. 301; 1049 A.P.R. 301; 2013 NLCA 38, refd to. [para. 30]; dist. [para. 71].

Beson et al. v. Director of Child Welfare (Nfld.), [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. 34].

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. 34].

Tremblett v. Tremblett (2013), 340 Nfld. & P.E.I.R. 135; 1057 A.P.R. 135; 2013 NLCA 53, refd to. [para. 35].

Ryan v. Dew Enterprises Ltd. - see Pakara Apartments Ltd. v. Dew Enterprises Ltd.

Pakara Apartments Ltd. v. Dew Enterprises Ltd. (2014), 347 Nfld. & P.E.I.R. 274; 1080 A.P.R. 274; 2014 NLCA 11, refd to. [para. 35].

Puszczak v. Puszczak (2005), 384 A.R. 57; 367 W.A.C. 57; 2005 ABCA 426, refd to. [para. 40].

S.H. v. W.H. (1999), 177 Nfld. & P.E.I.R. 273; 543 A.P.R. 273 (Nfld. Fam. Ct.), refd to. [para. 41].

J.M.M. v. K.A.M., [2008] Nfld. & P.E.I.R. Uned. 44; 2008 NLUFC 25, refd to. [para. 41].

L.M.H. v. S.R.H. (2010), 507 A.R. 201; 2010 ABQB 769, refd to. [para. 41].

Letourneau v. Letourneau, [2014] A.R. Uned. 77; 2014 ABCA 156, refd to. [para. 48].

Wareham v. Steele (1985), 55 Nfld. & P.E.I.R. 59; 162 A.P.R. 59 (Nfld. C.A.), refd to. [para. 52].

S.M. v. C.M. (2014), 349 Nfld. & P.E.I.R. 90; 1085 A.P.R. 90; 2014 NLCA 17, refd to. [para. 52].

Business Development Bank of Canada v. Noble (2012), 331 Nfld. & P.E.I.R. 21; 1027 A.P.R. 21; 2012 NLTD(G) 173, refd to. [para. 69].

Pennecon Energy Ltd. v. Metal World Inc. et al. (2014), 346 Nfld. & P.E.I.R. 302; 1078 A.P.R. 302; 2014 NLCA 10, refd to. [para. 69].

Statutes Noticed:

Rules of Court (Nfld. and Lab.), Family Law Rules, rule 56A.02(4), rule 56A.02(5) [para. 28]; rule 56A.21, rule 56A.23, rule 56A.73 [para. 24].

Family Law Rules (Nfld. and Lab.) - see Rules of Court (Nfld. and Lab.), Family Law Rules.

Authors and Works Noticed:

Day, David C., Counsel for Christopher: Representing an Infant's Best Interests in the Supreme Court of Canada (1983), 33 R.F.L.(2d) 16 [para. 44].

Counsel:

J. Michael Cabot, for the appellant;

Janet A. Tucker, for the respondent.

This appeal was heard and decided on June 6, 2014, by Green, C.J.N.L., Welsh and Hoegg, JJ.A., of the Newfoundland and Labrador Court of Appeal. On May 29, 2015, Green, C.J.N.L., delivered the following reasons for the decision.