New Brunswick (Minister of Health and Community Services) v. G. (J.)

New Brunswick (Minister of Health and Community Services) v. G. (J.)
Collection
Supreme Court Judgments
Date
1999-09-10
Report
[1999] 3 SCR 46
Case number
26005
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Major, John C.; Binnie, William Ian Corneil
On appeal from
New Brunswick
Subjects
Action
Appeal
Constitutional law
Family law
Notes
SCC Case Information: 26005
Decision Content
New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46
J.G. Appellant
v.
The Minister of Health and Community Services,
the Law Society of New Brunswick,
Legal Aid New Brunswick,
the Attorney General for New Brunswick
and the Minister of Justice Respondents
and
The Attorney General of Manitoba,
the Attorney General of British Columbia,
the Attorney General for Alberta,
the Canadian Bar Association,
the Charter Committee on Poverty Issues,
the Women’s Legal Education and Action Fund,
the National Association of Women and the Law,
the Disabled Women’s Network Canada,
the Watch Tower Bible and Tract Society of Canada Interveners
Indexed as: New Brunswick (Minister of Health and Community Services) v. G. (J.)
File No.: 26005.
1998: November 9; 1999: September 10.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Major and Binnie JJ.
on appeal from the court of appeal for new brunswick
Constitutional law -- Charter of Rights -- Security of person -- Minister of Health and Community Services applying to extend order granting him custody of three children -- Whether parent’s right to security of person engaged in custody proceedings -- Canadian Charter of Rights and Freedoms, s. 7 .
Constitutional law -- Charter of Rights -- Fundamental justice -- Legal Aid -- Minister of Health and Community Services applying to extend order granting him custody of three children -- Parent intending to challenge application to extend custody order but denied legal aid because custody applications not covered under legal aid guidelines -- Whether failure to provide parent with legal aid in custody proceedings infringing principles of fundamental justice -- If so, whether infringement justified -- Appropriate remedy -- Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 24(1) .
Family law -- Children in care -- Ministerial application for extension of custody order -- Legal Aid -- Minister of Health and Community Services applying to extend order granting him custody of three children -- Parent intending to challenge application to extend custody order but denied legal aid because custody applications not covered under legal aid guidelines -- Whether parent has constitutional right to state-funded counsel in circumstances of case -- Procedure to be followed when unrepresented parent in custody application seeks state-funded counsel -- Canadian Charter of Rights and Freedoms, s. 7 .
Appeals -- Mootness -- Legal issues raised in case moot -- Whether Supreme Court should exercise its discretion to decide case.
Practice -- Constitutional questions -- Reformulation -- Constitutional questions slightly modified to reflect prospective rather than retrospective nature of case -- No prejudice to parties or potential interveners.
The New Brunswick Minister of Health and Community Services was granted custody of the appellant’s three children for a six-month period. He later sought an extension of the custody order for a further period of up to six months. At the initial appearance of the appellant, duty counsel appointed by the Minister of Justice to act on her behalf advised the court that the appellant intended to challenge the application and required a full hearing of the matter. The appellant, who was indigent and receiving social assistance at the time, applied for legal aid in order to retain a lawyer to represent her at the custody hearing. Her application was denied because, at the time, custody applications were not covered under the legal aid guidelines. The appellant then brought a motion for an order directing the Minister to provide her with sufficient funds to cover reasonable fees and disbursements of counsel for the purposes of preparing for and representing her in the custody proceedings or, in the alternative, that either Legal Aid New Brunswick or the provincial Attorney General provide her with counsel. She also sought a declaration that the rules and policies governing the distribution of Domestic Legal Aid violated s. 7 of the Canadian Charter of Rights and Freedoms . The motions judge was unable to decide the issue prior to the date set for the custody application. The parties agreed that it would be in the best interests of the children to proceed with the application, and duty counsel for the appellant agreed to represent the appellant at the custody hearing pro bono. At the custody hearing, all the parties were represented by counsel, including the appellant. During a three-day period, the Minister called testimony and presented affidavit evidence from 15 witnesses, including expert psychological reports. The Minister was granted an extension of the custody order. Almost a year later, the appellant’s motion to obtain state-funded counsel was dismissed. The motions judge concluded that the failure to provide the appellant with legal aid did not violate s. 7 of the Charter . The majority of the Court of Appeal affirmed the decision. This appeal is to determine whether indigent parents have a constitutional right to be provided with state-funded counsel when a government seeks a judicial order suspending such parents’ custody of their children.
Held: The appeal should be allowed. The New Brunswick government was under a constitutional obligation to provide the appellant with state-funded counsel in the particular circumstances of this case.
Per Lamer C.J. and Gonthier, Cory, McLachlin, Major and Binnie JJ.: While the legal issues that arise in this appeal are moot, the Court should exercise its discretion to decide the case. First, there was an appropriate adversarial context and the appeal was vigorously and fully argued on both sides by the parties and the interveners. Second, the question of whether a parent has a right to state-funded counsel at a custody hearing is of national importance and, although similar cases may arise in the future, they are by nature evasive of review. Lastly, the Court is not overstepping its institutional role in deciding this appeal. While the issues are moot, they are not abstract. This case, however, must be approached as though a prospective breach of s. 7 of the Charter was at issue. The analysis must proceed on the assumption that the custody hearing had not yet taken place and that the appellant would not have been represented by counsel at the hearing. Given this approach, the constitutional questions, which are retrospective rather than prospective in nature, must be slightly modified. None of the parties are prejudiced by the reformulation of the questions, nor would any potential interveners have made a different decision about exercising their right to intervene.
The Minister’s application to extend the original custody order threatened to restrict the appellant’s right to security of the person guaranteed by s. 7 of the Charter . This right protects both the physical and psychological integrity of the individual and this protection extends beyond the criminal law and can be engaged in child protection proceedings. For a restriction of security of the person to be made out, the impugned state action must have a serious and profound effect on a person’s psychological integrity. The effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety. State removal of a child from parental custody pursuant to the state’s parens patriae jurisdiction constitutes a serious interference with the psychological integrity of the parent. Besides the obvious distress arising from the loss of companionship of the child, direct state interference with the parent-child relationship, through a procedure in which the relationship is subject to state inspection and review, is a gross intrusion into a private and intimate sphere. Further, the parent is often stigmatized as “unfit” when relieved of custody. As an individual’s status as a parent is often fundamental to personal identity, the stigma and distress resulting from a loss of parental status is a particularly serious consequence of the state’s conduct. A combination of stigmatization, loss of privacy, and disruption of family life are sufficient to constitute a restriction of security of the person.
This restriction would not have been in accordance with the principles of fundamental justice were the appellant unrepresented by counsel at the custody hearing. Section 7 guarantees every parent the right to a fair hearing when the state seeks to obtain custody of their children. For the hearing to be fair, the parent must have an opportunity to present his or her case effectively. Effective parental participation at the hearing is essential for determining the best interests of the child in circumstances where the parent seeks to maintain custody of the child. While a parent need not always be represented by counsel in order to ensure a fair custody hearing, in some circumstances, depending on the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent, the government may be required to provide an indigent parent with state-funded counsel. A consideration of these factors leads to the conclusion that, in the circumstances of this case, the appellant’s right to a fair hearing required that she be represented by counsel. Without the benefit of counsel, the appellant would not have been able to participate effectively at the hearing, creating an unacceptable risk of error in determining the children’s best interests and thereby threatening to violate both the appellant’s and her children’s s. 7 right to security of the person. Although all custody hearings engage serious interests, the seriousness varies according to the length of the proposed separation of parent from child and the length of any previous separation. Here, the state was seeking to extend a previous custody order by six months and the appellant had already been separated from her children for over a year. The custody hearing was sufficiently complex. Child custody proceedings are adversarial and the parties are responsible for planning and presenting their cases. While the rules of evidence are somewhat relaxed, difficult evidentiary issues are frequently raised. The parent must adduce evidence, cross-examine witnesses, make objections and present legal defences in the context of what is to many a foreign environment, and under significant emotional strain. In this case, all the other parties were represented by counsel. The hearing was scheduled to last three days, and counsel for the Minister planned to present 15 affidavits, including two expert reports. Finally, in proceedings as serious and complex as these, an unrepresented parent will ordinarily need to possess superior intelligence or education, communication skills, composure, and familiarity with the legal system in order to effectively present his or her case. There is no evidence here suggesting that the appellant possessed such capacities. The potential s. 7 violation in this case would have been the result of the failure of the New Brunswick government to provide the appellant with state-funded counsel under its Domestic Legal Aid program after initiating proceedings under Part IV of the Family Services Act.
Assuming without deciding that the policy of not providing state-funded counsel to respondents in custody applications was a limit prescribed by law, that the objective of this policy -- controlling legal aid expenditures -- is pressing and substantial, that the policy is rationally connected to that objective, and that it constitutes a minimal impairment of s. 7 , the deleterious effects of the policy far outweigh the salutary effects of any potential budgetary savings. The proposed budgetary savings are minimal and the additional cost of providing state-funded counsel in these circumstances is insufficient to constitute a justification within the meaning of s. 1 of the Charter . Moreover, the government’s obligation to provide legal aid to a parent who cannot afford a lawyer only arises in circumstances where the representation of the parent is essential to ensure a fair hearing where the parent’s life, liberty, or security is at stake.
In circumstances where the absence of counsel for a parent would result in an unfair custody hearing, the appropriate remedy under s. 24(1) is an order that the government provide the parent with state-funded counsel.
In the future, when an unrepresented parent in a custody application wants a lawyer but is unable to afford one, the judge should first inquire as to whether the parent applied for legal aid or any other form of state-funded legal assistance. If the parent has not exhausted all possible avenues for obtaining state-funded legal assistance, the proceedings should be adjourned to give the parent a reasonable time to make the appropriate applications, provided the best interests of the child are not compromised. The judge should next consider whether the parent can receive a fair hearing if unrepresented by considering the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent. The judge should also bear in mind his or her ability to assist the parent within the limits of the judicial role. If, after considering these criteria, the judge is not satisfied that the parent can receive a fair hearing and there is no other way to provide the parent with a lawyer, the judge should order the government to provide the parent with state-funded counsel under s. 24(1) of the Charter .
Per L’Heureux-Dubé, Gonthier and McLachlin JJ.: In addition to s. 7 issues, this case raises issues of gender equality because women, and especially single mothers, are disproportionately and particularly affected by child protection proceedings. In considering the s. 7 issues, it is thus important to ensure that the analysis takes into account the principles and purposes of the equality guarantee in promoting the equal benefit of the law and ensuring that the law responds to the needs of those disadvantaged individuals and groups whose protection is at the heart of s. 15 of the Charter . The principles of equality, guaranteed by both ss. 15 and 28 , are a significant influence on interpreting the scope of protection offered by s. 7 .
For the reasons given by the Chief Justice, the appellant’s security of the person was implicated when the government instituted proceedings to extend the existing custody order. However, the proceedings also triggered the appellant’s liberty interest. The result of the proceedings may be that the parent is deprived of the right to make decisions on behalf of children and guide their upbringing. Parental decision-making and other attributes of custody are protected under the liberty interest in s. 7 of the Charter .
The appellant can only be deprived of her security and liberty interests in accordance with the principles of fundamental justice. These principles require that a parent be able to participate in the hearing adequately and effectively, and it is the obligation of the trial judge to exercise his or her discretion in determining when a lack of counsel will interfere with the ability of the parent to present his or her case. In determining whether a parent will be able to participate effectively in the hearing, the trial judge must consider the seriousness of the interests, the complexity of the proceedings, and the characteristics of the parent affected. Child protection hearings will have varying degrees of seriousness. While the seriousness of the order requested will play a role in balancing the interests involved, the fact that the application is temporary or permanent should not have a significant effect on whether the parent will be granted a right to counsel since temporary applications are often part of a process that leads to permanent ones. In considering the seriousness factor, the trial judge must take into account the overall context and the serious effects of losing the ability to care for and guide the development of one’s children. With respect to the complexity factor, the more complex the proceedings are, the more difficult it will be for the parent to participate effectively without assistance. The length of the proceedings, the type of evidence that is presented, the number of witnesses and the complexity and technicality of the proceedings must be important considerations in evaluating this factor. In considering the characteristics of the parent affected, courts must avoid including considerations in the test for state-funded counsel that may make it more difficult for the parent when presenting his or her case on the merits. The focus must be on the parent’s education level, linguistic abilities, facility in communicating, age, and similar indicators. When the three factors are taken into account, it is likely that the situations in which state-funded counsel is required will not necessarily be rare. Here, the trial judge did not exercise her discretion properly. She was in error in not adequately considering the values of meaningful participation in the hearing affecting the rights of the child or the complexity of this case and the difficulty the appellant would face in presenting her case.
Cases Cited
By Lamer C.J.
Applied: Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; distinguished: R. v. Prosper, [1994] 3 S.C.R. 236; referred to: B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Duke v. The Queen, [1972] S.C.R. 917; R. v. Rowbotham (1988), 41 C.C.C. (3d) 1; Howard v. Stony Mountain Institution, [1984] 2 F.C. 642; Children’s Aid Society of Ottawa-Carleton v. M.T., [1995] O.J. No. 3879 (QL); International Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders’ Exchange, [1967] S.C.R. 628; Reference re Objection by Quebec to a Resolution to amend the Constitution, [1982] 2 S.C.R. 793; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; R. v. Vermette, [1988] 1 S.C.R. 985; R. v. Harrer, [1995] 3 S.C.R. 562; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; R. v. Morgentaler, [1988] 1 S.C.R. 30; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; Mills v. The Queen, [1986] 1 S.C.R. 863; Augustus v. Gosset, [1996] 3 S.C.R. 268; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Hepton v. Maat [1957] S.C.R. 606; R. v. Robinson (1989), 63 D.L.R. (4th) 289; R. v. Rain (1998), 130 C.C.C. (3d) 167; R. v. Oakes, [1986] 1 S.C.R. 103; Egan v. Canada, [1995] 2 S.C.R. 513; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69.
By L’Heureux-Dubé J.
Referred to: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Tran, [1994] 2 S.C.R. 951; Moge v. Moge, [1992] 3 S.C.R. 813; Santosky v. Kramer, 455 U.S. 745 (1982); B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; R. v. Morgentaler, [1988] 1 S.C.R. 30; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 2 , 7 , 10 , 11 (d), 15(1) , 24(1) , 28 .
Family Services Act, S.N.B. 1980, c. F-2.2 [am. 1983, c. 16, s. 1], ss. 1 “best interests of the child”, 7(b), 53(2), Part IV.
Legal Aid Act, R.S.N.B. 1973, c. L-2, ss. 12(1) [am. 1979, c. 41, s. 73(2); am. 1983, c. 46, s. 6; am. 1987, c. 6, s. 51(10)], 12(14) [rep. & sub. 1983, c. 46, s. 6; am. 1987, c. 6, s. 51(10)], 24(1) [ad. 1993, c. 21, s. 20], Part II [ad. 1993, c. 21, s. 20].
Authors Cited
Callahan, Marilyn. “Feminist Approaches: Women Recreate Child Welfare”. In Brian Wharf, ed., Rethinking Child Welfare in Canada. Toronto: McClelland & Stewart, 1993, 172.
Cossman, Brenda, and Carol Rogerson. “Case Study in the Provision of Legal Aid: Family Law”. In Report of the Ontario Legal Aid Review: A Blueprint of Publicly Funded Legal Services. Toronto: Ontario Legal Aid Review, 1997, 773.
Hughes, Patricia. “New Brunswick’s Domestic Legal Aid System: New Brunswick (Minister of Health and Community Services) v. J.G.” (1998), 16 Windsor Y.B. Access Just. 240.
Thompson, D. A. Rollie. “Taking Children and Facts Seriously: Evidence Law in Child Protection Proceedings – Part I” (1988), 7 Can. J. Fam. L. 11.
Thomson, George M. “Judging Judiciously in Child Protection Cases”. In Rosalie S. Abella and Claire L’Heureux-Dubé, eds., Family Law: Dimensions of Justice. Toronto: Butterworths, 1983, 213.
APPEAL from a judgment of the New Brunswick Court of Appeal (1997), 187 N.B.R. (2d) 81, 478 A.P.R. 81, 145 D.L.R. (4th) 349, [1997] N.B.J. No. 138 (QL), dismissing the appellant’s appeal from a judgment of Athey J. (1995), 171 N.B.R. (2d) 185, 437 A.P.R. 185, 131 D.L.R. (4th) 273, [1995] N.B.J. No. 560 (QL), dismissing the appellant’s motion asserting a right to a state-funded legal counsel. Appeal allowed.
E. Thomas Christie, for the appellant.
Bruce Judah, Q.C., for the respondents the Minister of Health and Community Services, the Attorney General for New Brunswick and the Minister of Justice.
Gary A. Miller, for the respondents the Law Society of New Brunswick and Legal Aid New Brunswick.
Heather Leonoff, Q.C., for the intervener the Attorney General of Manitoba.
George H. Copley, Q.C., for the intervener the Attorney General of British Columbia.
Roderick Wiltshire, for the intervener the Attorney General for Alberta.
Barry L. Gorlick, Q.C., and Greg Delbigio, for the intervener the Canadian Bar Association.
Arne Peltz and Martha Jackman, for the intervener the Charter Committee on Poverty Issues.
Carole Curtis and Anne Dugas-Horsman, for the interveners the Women’s Legal Education and Action Fund, the National Association of Women and the Law, and the Disabled Women’s Network Canada.
W. Glenn How, Q.C., and André Carbonneau, for the intervener the Watch Tower Bible and Tract Society of Canada.
The judgment of Lamer C.J. and Gonthier, Cory, McLachlin, Major and Binnie JJ. was delivered by
1 The Chief Justice -- This case raises for the first time the issue of whether indigent parents have a constitutional right to be provided with state-funded counsel when a government seeks a judicial order suspending such parents’ custody of their children. It comes before the Court as a result of Legal Aid New Brunswick’s decision not to provide legal aid to the appellant after the Minister of Health and Community Services of New Brunswick sought to extend an order granting the Minister custody of the appellant’s three children for an additional six months. The decision not to provide the appellant with legal aid was made pursuant to a policy in force at the time of her application which stipulated that no legal aid certificates would be issued to respondents in custody applications made by the Minister of Health and Community Services.
2 I have concluded that the Government of New Brunswick was under a constitutional obligation to provide the appellant with state-funded counsel in the particular circumstances of this case. When government action triggers a hearing in which the interests protected by s. 7 of the Canadian Charter of Rights and Freedoms are engaged, it is under an obligation to do whatever is required to ensure that the hearing be fair. In some circumstances, depending on the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent, the government may be required to provide an indigent parent with state-funded counsel. Where the government fails to discharge its constitutional obligation, a judge has the power to order the government to provide a parent with state-funded counsel under s. 24(1) of the Charter through whatever means the government wishes, be it through the Attorney General’s budget, the consolidated funds of the province, or the budget of the legal aid system, if one is in place.
I. Factual Background
3 The appellant’s three young children were placed in the care of the Minister of Health and Community Services of New Brunswick on November 12, 1993. On April 28, 1994 the Minister obtained an order under Part IV of the Family Services Act, S.N.B. 1980, c. F-2.2, granting him custody of the children for a period of up to six months. The appellant was not represented by counsel at the hearing, although she did have the assistance of a friend who did not have any legal training.
4 By notice of application served on the appellant on October 24, 1994, the Minister sought an extension of the order for a further period of up to six months. On October 27, 1994, at the initial appearance of the appellant, duty counsel appointed by the Minister of Justice to act on her behalf advised the court that the appellant intended to challenge the temporary custody application and therefore required a full hearing of the matter.
5 The appellant, who was indigent and receiving social assistance at the time, applied to Legal Aid New Brunswick for legal aid on November 1, 1994 and was advised the next day that her application was denied on the grounds that the proceeding involved a custody application, as opposed to a guardianship application by the Minister. At that time, custody applications were not covered under the legal aid guidelines; legal aid certificates were available only for guardianship applications.
6 On November 2, 1994, the appellant brought a motion for an order directing the Minister to provide her with sufficient funds to cover reasonable fees and disbursements of counsel for the purposes of preparing for and representing her in the custody proceedings or in the alternative, that either Legal Aid New Brunswick or the Attorney General for New Brunswick provide her with counsel. She also sought a declaration that the rules and policies governing the distribution of Domestic Legal Aid, as they differentiated between applications for guardianship and applications for custody orders (or their extension), were contrary to s. 15(1) of the Charter . Subsequently, the motion was amended to include relief for a violation of s. 7 of the Charter .
7 November 3, 1994 was set aside to hear the motion. At the request of the Attorney General, an adjournment was granted until December 12, 1994. The motions judge, Athey J., also requested that the parties present their arguments by way of written brief.
8 In the week preceding the new hearing date, Athey J. advised counsel that she would be unable to determine the issue of the right to paid counsel prior to the date set for the custody application. It was agreed by counsel that the best interests of the children would be served by proceeding with the custody hearing on the originally scheduled date. Mr. Christie, who had been appointed duty counsel for the appellant and relieved of his role on November 8, 1994, agreed to represent the appellant at the custody hearing pro bono, in accordance with the highest standards of the profession. The parties also agreed that the motion would not be considered moot by virtue of Mr. Christie’s representation of the appellant at the hearing.
9 The custody hearing was held December 19, 20 and 21, 1994. Athey J. granted an extension of the custody order on January 3, 1995. At the hearing, the Minister of Health and Community Services called testimony and presented affidavit evidence from 15 witnesses, including expert psychological reports. The Minister of Justice provided counsel for the Minister of Health and Community Services and, at the request of the court pursuant to s. 7(b) of the Family Services Act, the Attorney General provided counsel for the appellant’s children. Mr. Danny Vezina, the father of one of the children, hired counsel to represent him.
10 In June of 1995, the children were returned to the care of the appellant. On December 15, 1995, over a year after the appellant’s motion was brought, it was dismissed by Athey J. The appellant was granted leave to appeal. Her appeal was dismissed by the New Brunswick Court of Appeal on March 14, 1997.
II. The Legislative Scheme
11 The relevant sections of the Family Services Act are as follows:
1. . . .
“best interests of the child” means the best interests of the child under the circumstances taking into consideration
(a) the mental, emotional and physical health of the child and his need for appropriate care or treatment, or both;
(b) the views and preferences of the child, where such views and preferences can be reasonably ascertained;
(c) the effect upon the child of any disruption of the child’s sense of continuity;
(d) the love, affection and ties that exist between the child and each person to whom the child’s custody is entrusted, each person to whom access to the child is granted and, where appropriate, each sibling of the child;
(e) the merits of any plan proposed by the Minister under which he would be caring for the child, in comparison with the merits of the child returning to or remaining with his parents;
(f) the need to provide a secure environment that would permit the child to become a useful and productive member of society through the achievement of his full potential according to his individual capacity; and
(g) the child’s cultural and religious heritage;
. . .
53(2) When disposing of an application under this Part the court shall at all times place above all other considerations the best interests of the child.
12 The relevant sections of the Legal Aid Act, R.S.N.B. 1973, c. L-2, are as follows:
12(1) Subject to the directions of the Provincial Director and policies established by the Law Society, an area director may issue legal aid certificates authorizing legal aid for proceedings and matters preliminary to anticipated proceedings
(a) in respect of an offence under an Act of the Parliament of Canada or in respect of the Extradition Act , chapter E-21 of the Revised Statutes of Canada, 1970 or the Fugitive Offenders Act chapter F-32 of the Revised Statutes of Canada, 1970,
(b) in respect of an offence under an Act of the Legislature,
(c) before an administrative tribunal established by an Act of theLegislature or of the Parliament of Canada,
(d) in bankruptcy,
(e) under the Divorce Act , chapter D-8 of the Revised Statutes of Canada, 1970, or the Divorce Act, 1985, chapter 4 of the Statutes of Canada, 1986,
(f) other than those covered in paragraphs (a) to (e), in The Court of Queen’s Bench of New Brunswick, the Court of Divorce and Matrimonial Causes, the Provincial Court, The Probate Court of New Brunswick, the Supreme Court of Canada or the Federal Court of Canada, and
(g) of an appellate nature in respect of matters and proceedings described in such of paragraphs (a) to (f) as are in force.
. . .
12(14) Where the Law Society is of the opinion that the Legal Aid Fund is in danger of being depleted, it may, with the approval of the Minister, issue directions to the Provincial Director limiting the providing of legal aid in matters included in paragraphs (1)(c) to (g) and subsection (2).
. . .
24(1) Notwithstanding any other provision of this Act or the regulations, the Minister may establish and administer a program to provide legal aid for persons for proceedings and matters preliminary to anticipated proceedings
(a) under the Divorce Act , (Canada),
(b) other than those covered in paragraphs 12(1)(a) to 12(1)(e), in The Court of Queen’s Bench of New Brunswick, the Court of Divorce and Matrimonial Causes, the Supreme Court of Canada or the Federal Court of Canada, and
(c) of an appellate nature in respect of matters and proceedings described in paragraphs (a) and (b).
13 The relevant sections of the Charter are as follows:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
14 To better understand both the factual context and the issues raised in this appeal, it may prove helpful to briefly review the Domestic Legal Aid program in New Brunswick. The statutory scheme and development of domestic legal aid in New Brunswick was ably described by both Athey J. in her reasons and by the parties, and I borrow from their accounts in what follows.
A. The Statutory Scheme
15 Under the Legal Aid Act, the Law Society is authorized to establish a plan known as Legal Aid New Brunswick, funded by both the government and the Law Foundation of New Brunswick. This plan is administered by the Law Society through the Provincial Director, who is appointed by the Law Society and is subject to its directions in all matters of policy and administration. The Law Society is responsible for establishing policies and regulations governing the administration of the plan. The Provincial Director in turn administers the plan in accordance with the regulations and policies established by the Law Society and directs the Area Directors concerning the performance of their duties.
16 Section 12(1) of the Legal Aid Act sets out the various judicial and administrative proceedings, both civil and criminal, which are eligible to receive legal aid certificates issued under the Act, subject to policies established by the Law Society and the directions of the Provincial Director. Pursuant to s. 12(14), where the Law Society is of the opinion that the Legal Aid Fund is in danger of being depleted, it may, with the approval of the Minister of Justice, issue directions to the Provincial Director limiting the provision of legal aid in certain matters. Among the matters in respect of which the Law Society is authorized to limit the provision of services are custody applications.
17 In 1993, the Legal Aid Act was amended to allow the Minister of Justice to establish and administer a program to provide domestic legal aid through the addition of Part II of the Act. Prior to that time, the Law Society and Legal Aid New Brunswick had exclusive jurisdiction over the provision of domestic legal aid and provided a limited service pursuant to the authority conferred by s. 12. Under s. 24(1) the Minister of Justice was granted the authority to establish a legal aid program notwithstanding any other provision of the Act or regulations, although the scope of this program is limited to civil matters. The result is a situation in which there is concurrent jurisdiction under the Legal Aid Act over the provision of domestic legal aid. As a matter of practice, however, domestic legal aid is provided almost exclusively by the Minister of Justice. One notable exception is guardianship applications, which are only covered by Legal Aid New Brunswick. Unlike Legal Aid New Brunswick, which uses a certificate system, the Minister of Justice operates a “staff model” of delivery whereby the Minister directly employs or enters into contracts with persons for the provision of legal aid.
B. The Development of the Domestic Legal Aid Program
18 In June 1988, the New Brunswick Law Foundation provided a grant to the Law Society to implement a domestic legal aid scheme and offer limited duty counsel service in Family Court. Certificates were only to be issued to applicants in cases where there were allegations against the applicant’s spouse of spousal abuse, sexual abuse of the applicant’s children, or “snatching” of children from the custodial parent. No certificates were to be issued to respondents to defend such allegations.
19 In December 1988, the Law Foundation agreed with the Law Society’s request to expand the program to include parents subject to guardianship applications, but not custody applications by the Minister of Health and Community Services. In April 1989, the program was further expanded when the province of New Brunswick agreed to match the Law Foundation grant and double the budget of the Domestic Legal Aid program to $500,000.
20 Budgetary restraints necessitated a reduction in Domestic Legal Aid services in December 1991. On December 9, 1991, the Council of the Law Society, after having been made aware of the financial state of the program, decided that as of December 16, 1991 and until further notice certificates would only be issued for family violence and guardianship applications. In adopting this policy, the Law Society purported to act under the authority of s. 12(14).
21 In April 1993, the Domestic Legal Aid program underwent a major overhaul which significantly reduced the Law Society’s involvement in the provision of domestic legal aid. With the addition of Part II of the Act, the bulk of domestic legal aid came under the direction of the Minister of Justice, which expanded the Unified Family Court program to provide more comprehensive socio-legal services.
22 Under the program offered by the Minister of Justice, everyone who needs counsel for the purposes of support orders is provided with the services of the Family Solicitor, who is paid by the Minister of Justice to provide legal services offered by the program. If there are allegations of abuse, a party will be able to use the services of the Family Solicitor for all legal matters that may arise between the parties, including custody, support, and divorce proceedings. The Minister also provides a limited duty counsel service, available to respondents on the day of their first appearance in Family Court proceedings initiated by the Crown. Mr. Christie was appointed duty counsel for the appellant pursuant to this aspect of the plan.
23 The Minister of Justice’s program does not cover either guardianship or custody applications initiated by the Minister of Health and Community Services. This decision was made in order to avoid any potential conflicts of interest for Family Solicitors, who would be forced to act against the government while being paid by the Minister of Justice. In circumstances where the Minister of Health and Community Services applies for a permanent order of guardianship the provision of legal assistance is shifted to Legal Aid New Brunswick, which provides a legal aid certificate covering representation up to a limit of $1,000 to a qualified applicant. Prior to September 22, 1997 and at the time this case was initially heard, no legal aid was provided by either Legal Aid New Brunswick or the Minister of Justice to respondents in custody applications, except for the advice of duty counsel on the day of the first appearance. Since that time Legal Aid New Brunswick has adopted a new policy under which a legal aid certificate will be provided for the first custody hearing. Subsequent hearings for the extension of the original custody order, such as the one which is the subject of the present appeal, are still