It was a busy week for family court, with parents seeking parenting time. There was a sensitive parenting case involving a chronic but rare childhood disease called Diamond-Blackfan anemia. There are only 30 cases in North America. It’s hard to think of children who need at least two parents more desperately than those facing lifelong health struggles, but mom had to be encouraged to release pediatric appointment dates. Dad had been volunteering $500 – $1,000/month child support but stopped once excluded from parenting time. His actual child support will be $350/month. And I found the BC legal aid booklet called How to Make a Rowbotham Application in the Court registry.
Below is my first rough attempt to try to modify this criminal application for family court. New Brunswick (Minister of Health and Social Services) v. G.(J.). (1999) is a children’s aid case that actually mentions the Regina v. Rowbotham (1988) criminal case, and both these cases discuss the values of our Canadian Constitution, like liberty and security of person, that led to the first judge being asked to appoint a lawyer to replace legal aid. Then I found a copy of the actual publication on the legal aid website, called How to Make a GJ Application.
I first wrote about the landmark GJ case on this website in 2013, but I was unaware of the connection to the Rowbotham criminal case. The British Columbia Legal Aid publication states GJ can only be used in the Provincial Court of British Columbia and only in cases under the Child, Family and Community Service Act. But of course our Constitution applies to all courts and all laws. As we pause at the beginning of the new year to reflect, let’s hope we can extend the use of this application to create fairer child support and shared parenting.
IN THE _____________ COURT OF BRITISH COLUMBIA
HER MAJESTY THE QUEEN
NOTICE OF APPLICATION AND CONSTITUTIONAL ISSUE
(Constitutional Question Act, R.S.B.C. 1996, c. 68, Section 8;
Constitution Act, 1982, Part 1, Sections 7, 11(d) and 24(1))
TO: Attorney General of Canada
900-840 Howe Street
Vancouver, BC V6E 3P9
TO: Attorney General of British Columbia
Parliament Buildings, Room 232
Victoria BC V8V 1X4
TAKE NOTICE that the applicant will make an application to a judge of the ________________ Court on the day of ______________________, 20______at______________________(time), or as soon after that time as the application can be heard at the _______________________Court at(address):_________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
THE APPLICATION IS FOR an Order staying the proceedings until the Attorney General of ____________________________________provides the necessary funding for counsel subject to any assessment of counsel’s bill.
THE GROUNDS FOR APPLICATION ARE:
1. The applicant has a hearing date of __________________________________________with respect to child protection issues, including issues of:
(list protection issues here)___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
2. The applicant wishes to retain counsel to maintain custody of their children. To that end, the applicant applied to the Legal Services Society for legal aid and legal aid has been refused.
3. The applicant cannot pay for a lawyer.
4. Representation of the applicant by counsel is essential to a fair trial and to the ability of the applicant to fully address these child protection concerns. The applicant believes the protection issues are serious and complex. The applicant is ______________years old and his/her level of education is______________________________.
5. The applicant relies on section 8(c) of the Family Court Rules (CFCSA).
6. The applicant also relies on Sections 7 and 11(d) and 24(1) of the Charter, and the common law.
7. Section 7 and 11(d) of the Charter guarantee the applicant the right to a fair hearing in accordance with the principles of fundamental justice and accordingly require funded counsel to be provided if the parent wishes counsel, cannot pay a lawyer, and representation of the parent by counsel is essential to a fair trial: New Brunswick (Minister of Health and Community Services) v. G.(J.), (1999), 3 S.C.R. 46.
8. Sections 7 and 11(d) of the Charter also guarantee the right to make full answer and defence.
9. The proper remedy is a stay of proceedings pursuant to Section 24(1) of the Charter until the necessary funding of counsel is provided.
There were 2 issues in G.(J.).: 1)The best interest of the child is paramount and presumed to lie within the parental home. 2)Section 7 rights to liberty, and security of person are so significant they are rarely overridden by other social interests. Effective parental participation at the [custody] hearing is essential for determining the best interests of the child in circumstances where the parent seeks to maintain custody of the child. Without the benefit of counsel, an unacceptable risk of error in determining the children’s best interests is created, thereby threatening to violate both the parent’s and his/her children’s s. 7 right to security of the person.
. . . I would have thought it plain that the right to nurture a child, to care for its development, and to make decisions for it in fundamental matters such as medical care, are part of the liberty interest of a parent ~ La Forest J. in the B.(R.) case.
G.(J.). at paragraph For a restriction of security of the person to be made out, then, 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.
G.(J.). at paragraph I have little doubt that 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.
G.(J.). at paragraph  I agree with the Chief Justice that: “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”.
The Canadian Constitution (Charter of Rights and Freedoms) says everyone has
the right to a fair trial.
In child protection matters, once someone has been denied legal aid, they have
the right to ask the court to appoint a lawyer to ensure they have a fair trial.
This request is called a “JG application.” JG is the name of a New Brunswick court
case (1999) about the right to have a lawyer in a child protection case..
Canadian courts create errors in determining the best interest of the child because of unfair trials without any ethical legal advice. These are devastating loses for any of us, which is why so many Canadians are seeking shared parenting arrangements.