The Queen’s Bench of New Brunswick’s (Family Division) decision in The Minister of Social Development v M.M. and K.B., 2022 NBQB 17 (CanLII) confirms when state-funded counsel may be available to parents in a child protection guardianship application in New Brunswick. [1] If the applicant is a non-custodial parent, they will have to show there are “exceptional circumstances” to warrant providing them with state funded counsel. A self-represented litigant may be able to show exceptional circumstances if they can show they have a current, active and meaningful relationship with the child.
In this case, the father of a child subject to a guardianship application by the Minister of Social Development (the Minister) filed a request for state-funded counsel in a “G” hearing. A “G” hearing was named after Supreme Court of Canada decision, New Brunswick (Minister of Health and Community Services) v G.(J.), 1999 CANLII 653 (SCC) . This Supreme Court case recognized a custodial biological parent’s constitutional right to state-funded legal counsel in a child protection proceeding based on section 7 of the Canadian Charter of Rights and Freedoms ( the Charter) . [2]
In The Minister of Social Development v M.M. and K.B, the father was ultimately denied state-funded counsel because he was not the custodial parent at the time his child was taken into care. Additionally, there were no exceptional circumstances to warrant extending state-funded counsel to the father as a non-custodial parent.
The father’s request for counsel arose after an application by the Minister for the guardianship of his child. The father was described being heavily involved for the first five to six years of the child’s life and was the primary caregiver at this time. He also described having had a close and loving relationship with his child. [3]
In 2018, the mother was granted primary care of the child, in part because the father was charged with a drug offence occurring while the child was present. These charges were ultimately dropped. Although the father was allowed access at this time, he reported that his “life fell apart”, and he ceased having contact with his child. [4]
In 2021, the father was incarcerated to serve a one-year sentence for assault. Prior to this conviction, he had been under house arrest for approximately one year. [5]
At the time of the child protection hearing, the father had not been in contact with his child for over three years. He provided an explanation for this, including that a member of the mother’s family had assaulted and threatened him on two occasions. He described experiencing depression, he was drinking heavily and had moved away. [6] The father stated that he was saving money to hire a lawyer to help him re-obtain primary care of his child, but he ended up using this money to hire a lawyer to fight the criminal charge for which he was incarcerated. [7]
Despite being incarcerated and having limited means, the father was denied legal aid because he was not the custodial parent at the time of the Minister’s involvement. [8] His appeal against this decision was also denied and he was advised of his right to seek state-funded counsel by way of a “G” hearing. [9]
ISSUE AND HOLDING
The central issue was whether the father was entitled to state-funded legal counsel with respect to the Minister’s guardianship application.
Despite being sympathetic to the father’s circumstances, the court ultimately denied the father’s request for state-funded counsel. The father was not the custodial parent at the time his child was taken into the Minister’s care, and there were no exceptional circumstances to extend state-funded counsel to him as a non-custodial parent.
In a child protection “G” hearing, the court will first consider whether a parent has applied for legal aid and exhausted all other avenues for state-funded legal assistance. If so, the court will then determine whether the parent can receive a fair proceeding by considering:
• the seriousness of the interests at stake
• the complexity of the proceeding, and
• the capacities of the parent
If a parent cannot be provided a fair hearing given the above factors, and there is no other way to obtain a lawyer, a judge should order the government to provide state-funded counsel. [10]
In this case, the decision centered on the seriousness of the interests at stake. It was established that the father had applied for and was denied legal aid. The matter was deemed to be complex, and the judge acknowledged that the father would face difficulties effectively representing himself. [11]
In terms of the seriousness of the interests at stake, the court looked at The Supreme Court of Canada’s decision in New Brunswick (Minister of Health and Community Services) v G.(J.), and noted that the removal of a child from a custodial parent “constitutes a serious interference with the psychological integrity of the parent.” [12] However, as clarified by the New Brunswick Court of Appeal in C.M. v New Brunswick (Minister of Justice and Consumer Affairs) , 2012 NBCA 45 , a key component was that the parent was the custodial parent:
In my opinion, this decision (subsequently applied in J.R. ) firmly establishes the presumptive requirement that an individual seeking state-funded counsel to challenge state intervention in child protection cases of this nature must have been exercising custody, care and control of the child at the heart of the application. To be even clearer, it must have been from that individual’s “custody” that the child was taken into care by the Minister. [13]
The court reviewed New Brunswick case law, which made it clear that absent exceptional circumstances, state-funded counsel will not be available to a non-custodial parent whose child was taken into care. [14] Another New Brunswick Court of Appeal decision, Province of New Brunswick as represented by Minister of Justice v J.F. , 2021 NBCA 61 , confirmed that s.7 Charter interests are connected to the removal of a child from parental custody, and it is the “potential loss of existing rights” rather than the prospect of gaining rights that engage the Charter. [15]
The court determined that the father in this case was not exercising custodial care of his child at the time the Minister became involved. Although the father had been previously granted some custody and access to his child in a court order, he had not seen his child in three years and was not exercising any parenting rights at the time the Minister took his child into care. [16]
The court confirmed that there are limited circumstances that may warrant the extension of entitlement to state-funded counsel to a non-custodial parent. C.M. v New Brunswick (Minister of Justice and Consumer Affairs) stressed that such cases would be rare and extraordinary, for instance when the parent and child each have a “significant and meaningful” role in one another’s lives or when the parent’s life is “unquestionably interwoven” with the child’s life. [17]
The court concluded that in this case, s.7 of the Charter was not engaged, and the father did not qualify under exceptional circumstances. [18] Although he had a prior meaningful relationship with his child in their earlier years, this was not the case during the relevant period. [19]
The father did provide an explanation for his absence, including the alleged threats and assault by the mother’s family, and his incarceration which may have impacted his ability to communicate with his child. He also stated that the mother would not answer his calls and that the funds he planned to use to hire a lawyer to assist with custody arrangements were spent on his criminal charge [20] . Although the court accepted that these conditions were personally challenging to the father, the court did not find that they were exceptional. The court concluded that a parent who had not seen their child in three years would not necessarily experience a profound effect from state intervention. [21] As a result, the father was denied state-funded counsel.
This case affirms that for “G” hearings for state-funded counsel for child protection proceedings in New Brunswick, funding will be provided for those who are in financial need when the Minister is asking the court for a supervisory order, custody or permanent guardianship of a child. Non-custodial parents must show that there are exceptional circumstances warranting provision of state funded counsel. Exceptional Circumstances require that the applicant show they have a current, active and meaningful relationship with the child.
While the case is a positive one in that it recognizes the strong interests that self-represented parents have in being provided state-funded counsel for hearings against the Minister, it does also shed light on difficult situations where parents may want state-funded counsel to regain rights to their children, but intervening life circumstances have disconnected them from this child. The case highlights the difficulty that these parents may face in attempting to regain rights to their child and the toll that a lack of access to justice for all may have, not just for these parents, but for children, as well.
[1] The Minister of Social Development v MM and KB , 2022 NBQB 17 (CanLII)