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Epstein’s This Week in Family Law | Parental Alienation

Powers of the trial readiness and case management judges in a parental alienation case discussed in recent decision

Epstein’s This Week in Family Law

By: Philip Epstein

Parental Alienation - Voice of the Child - The Role of Trial Management Judge

B. (M.) v. Q. (R.), 60 R.F.L. (7th) 59 (N.L. C.A.): This is an important decision of the Newfoundland and Labrador Court of Appeal which deals with the scope and powers of the trial readiness judge and case management judge, the issue of legal representation for a child in an alienation case, and gauges the question of the degree, if at all, to which such a judge may revisit and vary a previous child representation order and the factors to be considered in making such a decision.

At first blush it appears that the trial readiness judge revoked a previous child representation order made by a judge of the same family division a few months earlier. The mother argued that previous child representation order could only be set aside by way of an appeal from that order and could not be changed or revoked by another judge of co-ordinate jurisdiction. The mother further argued that if there was such authority, it should not have been exercised as it was in the best interests of the 14-year-old child to have independent representation.

The Court of Appeal granted leave to appeal the interlocutory order of the trial readiness judge and engaged in a lengthy analysis of the issues raised.

The case involved the parental dispute with respect to a 14-year-old child and serious allegations of parental alienation. As a result of an earlier court order, there was a psychological assessment and the psychologist made it clear that alienation was a serious issue in this case and that this needed to be dealt with on an urgent basis. Justice LeBlanc, the case management and trial readiness judge, determined that the report was an extremely significant development issue in this case, and he determined that there was no need for the child to have representation “at this time”. That is, if the child needed representation because her voice needed to be heard, that could be dealt with by the trial judge. There was an urgent need to get the matter on for trial because of the allegations of parental alienation. Justice LeBlanc recognized that further delay in trying to get the child representation was going to be detrimental to the child’s best interests.

The Court of Appeal reviews carefully the Case Management and Trial Readiness Rules under the Family Law Rules and explores in detail the powers under those rules as well as the parens patriae jurisdiction of the trial management judge. The Court of Appeal recognizes that nowhere in the Family Law Rules relating to the role of the case management judge or trial readiness judge is the appointment of counsel for the child dealt with. However, the Court of Appeal goes on to find that the court has parens patriae jurisdiction to make such an order. The Court of Appeal notes:

Even more fundamentally, however, the making of a child representation order is integral to the exercise of the parens patriae jurisdiction of the court. That is a jurisdiction that is not to be cut down or restricted unless there is clear legislative intent to do so: Beson v. Director of Child Welfare (Nfld.), [1982] 2 S.C.R. 716; E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388 at page 420, where LaForest J. wrote: “ . . . the jurisdiction is a carefully guarded one. The courts will not readily assume that it has been removed by legislation where a necessity arises to protect a person who cannot protect himself”.

The Court of Appeal has determined that the process of case management may offer an appropriate time to determine the issue of legal representation of a child as long as the matter can be dealt with fairly to all concerned. The Court of Appeal makes it clear that the issue of child representation should be dealt with whenever the issue arises and in whatever forum it is engaged in at that time. The Court of Appeal then embarks on a detailed study of an explanation of the principles applicable to making a child representation order, and this is a must read for those seeking that order and for those that might make them. This is one of the most comprehensive judgments in Canada about when a child representation order should be made, some of the considerations that the court should address and how the order should be drafted. In the end, the Court of Appeal determines that a case management judge and a trial readiness judge are not precluded from making a child representation order in an appropriate case. They recognize that as a general rule that issue will usually be better dealt with by way of a separate application. The Court of Appeal accepts that Justice LeBlanc was sitting as a case management judge and as a trial readiness inquiry judge, and therefore had the jurisdiction and authority to make an order affecting legal representation of the child. He also had the legal authority to revoke or vary the previous order of Justice Fry because as the Court of Appeal notes:

The Order in question is an interlocutory order, which does not determine the substantive merits of the custody dispute between the parties but is designed to facilitate that determination. Case management is a dynamic and evolving process. Many orders of a procedural nature made during that process may well have to be modified or even reversed as the landscape surrounding the eventual trial changes as the parties move closer to trial.

That does not mean all interlocutory orders made in advance of trial have no binding effect or that a dissatisfied party may seek a reversal of such an order by the same or another case management judge without having to appeal formally to the Court of Appeal. The order is final and irreversible on the basis of the record and circumstances pertaining at the time it was made (except in the limited circumstances where the doctrine of reconsideration applies; see Business Development Bank of Canada v. Noble, 2012 NLTD(G) 173, 331 Nfld. & P.E.I.R. 21; Pennecon Energy Ltd. v. Metal World Inc., 2014 NLCA 10, 346 Nfld. & P.E.I.R. 302).

But 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.

Counsel need to be careful about applying this principle outside of Newfoundland and Labrador as it depends to a considerable degree on the interpretation of the Family Law Rules in Newfoundland and Labrador. Most other courts will have grave difficulty with the concept that a judge of co-ordinate jurisdiction can revoke an order of a previous judge.

Ultimately the order of Justice LeBlanc was, in the view of the Court of Appeal, discretionary and they will not interfere with the exercise of his discretion. As I said, an interesting and important case particularly for family law counsel in Newfoundland and Labrador.

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