2022 MBKB 176, 2022 MBKB 176

Date: 20220909 Docket: CP 15-02-01123 (Brandon Centre) Indexed as: Michif CFS v. S.A.S. and J.A.A.M. Cited as: 2022 MBKB 176 COURT OF KING'S BENCH OF MANITOBA (FAMILY DIVISION) B E T W E E N: Appearances/Counsel MICHIF CHILD AND FAMILY SERVICES, ) Petitioner, ) SAMANTHA WONG ) for the Petitioner - and - ) ) ) S.A.S., ) JENNIFER JANSSENS J.A.A.M., ) for the Respondent S.A.S.

Respondents. ) ) KAREN WEBB ) for the Respondent J.A.A.M. ) ) ) JUDGMENT DELIVERED: ) September 9, 2022 RESTRICTION ON PUBLICATION: Please note that s. 75(2) of The Child and Family Services Act provides that no press, radio or television report of this proceeding shall disclose the name of any person involved in the proceeding as a party or witness or disclose any information likely to identify any such person. ABEL J. INTRODUCTION AND BACKGROUND [ 1 ] This is an application by Michif Child and Family Services (the “Agency”), for an order for

summary judgment, in relation to V.J.A.M-M. (the “child”) . The child is now two years old. [ 2 ] The Agency is seeking a Permanent Order. [ 3 ] The parents have one other child together, S.A.A.M., who is also a permanent ward of the Agency. The Mother has two other

children, who are also permanent wards. [ 4 ] A 6-month Temporary Order with respect to the child was pronounced on June 26, 2020, expiring on December 26, 2020. [ 5 ] The parents are opposed to the request for

summary judgment, arguing that there are genuine issues requiring a trial. Ultimately, the parents seek the return of the child to their care. [ 6 ] The parents say that the child is no longer in need of protection, and that a permanent order is not in the best interests of the child.

SUMMARY JUDGMENT [ 7 ] The Court of Queen’s Bench Rules , Man Reg 553/88 , Rule 20.07(1) states that a judge must grant

summary judgment if they are satisfied that there is no genuine issue requiring a trial with respect to a claim or defence . [ 8 ] In applying the law in Manitoba, I am guided by the decision of Hryniak v. Mauldin , 2014 SCC 7 (“ Hryniak ”) . The unanimous Court, at paragraph 49, had this to say regarding

summary judgment motions: [49] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. [ 9 ] This principle has been restated by the Court of Appeal in Bibeau et al v Chartier et al , 2022 MBCA 2 , at para. 52 . [ 10 ] The persuasive legal burden is on the moving party to establish, on a balance of probabilities, that

summary judgment should be granted ( Dakota Ojibway Child and Family Services et al v MBH , 2019 MBCA 91 (“ Dakota ”), at paras. 77 to 79 ). [ 11 ] The test for

summary judgment was also articulated in Dakota at paras. 108 and 109 as follows: [108] At the hearing of the motion, the moving party must first satisfy the motion judge that there can be a fair and just determination on the merits (i.e., that the process will permit him or her to find the necessary facts and to apply the relevant legal principles so as to resolve the dispute, and that proceeding to trial would generally not be proportionate, timely or cost-effective).

In so doing, the moving party bears the evidential burden of establishing that there is no genuine issue requiring a trial. [109] If those requirements are met, the responding party must meet its evidential burden of establishing “that the record, the facts, or the law preclude a fair disposition” ... In other words, the responding party must establish why a trial is required ( see Hryniak at para 56 ). If the responding party fails to do so,

summary judgment will be granted. [ 12 ] Whether the evidentiary foundation and the connected findings of fact are, upon the application of the governing law and the related legal tests, sufficiently persuasive to satisfy the Court that there still exists (or not) a genuine issue or issues requiring a trial is a separate and distinct question from whether

summary judgment provides an adequate enough process to allow the judge to make the necessary findings of fact and apply the governing law to those facts for the purpose of achieving a fair and just adjudication of the issues ( Sensible Capital Corp. v.

Galton Corporation , 2020 MBQB 159 , at para. 74 ). [ 13 ] Queen’s Bench Rule 20.03(2) allows the court to weigh evidence, evaluate credibility and draw reasonable inferences in determining whether there is a genuine issue requiring a trial. [ 14 ] There is no shifting onus; the standard of proof is proof on a balance of probabilities and the persuasive burden of proof remains at all times with the moving party to establish that a fair and just adjudication is possible on a

summary basis and that there is no genuine issue requiring a trial. [ 15 ] The parents are Indigenous, and accordingly, the provisions of An Act Respecting First Nations, Inuit and Métis Children, Youth and Families , SC 2019, c 24 , (the “ Federal Act ”), needs to be considered. [ 16 ] Sections 9(1) to (3) of the Federal Act describe principles of

interpretation that inform the provision of child and family services to Indigenous children. [ 17 ] Section 9(1) of the Federal Act directs that national standards should be interpreted in accordance with the principle of the best interest of the child, and section 9(2) places import upon cultural continuity. [ 18 ]

Section 10 of the Federal Act provides that the best interests of the child must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services for Indigenous children. The best interests of the child is the paramount consideration regarding decisions or actions related to child apprehension. [ 19 ] The Agency’s decision to apprehend the child, and the seeking of a permanent order, involve the making of a decision or the taking of actions, even in the context of a

summary judgment motion. Simply because the Agency has proceeded by way of

summary judgment rather than a trial does not remove the Court’s obligation to consider the Federal Act in considering the best interests of the child.

[ 20 ] Section 10(2) of the Federal Act directs that, in assessing the best interests of the child, primary consideration must be given to the child’s physical, emotional and psychological safety, security, and well-being. This subsection emphasizes the importance of having an ongoing relationship with the child’s family and with the Indigenous group, community, or people to which he or she belongs, and of preserving the child’s connections to his or her culture. [ 21 ] Section 10(3) of the Federal Act provides a list of factors to consider in determining the best interests of an Indigenous child.

The list of best interest factors in the Federal Act to be considered includes the child’s cultural, linguistic, religious and spiritual upbringing and heritage; the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; and any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotional, and psychological harm or risk of harm to the child. [ 22 ] The Federal Act provides an expansive list of factors to be considered when determining the best interests of an Indigenous child.

These further factors must be considered. In general, primary consideration must be given to all the factors enumerated in section 10(3) when determining the best interests of an Indigenous child (see British Columbia (Child, Family and Community Service) v. S.H. , 2020 BCPC 82 (“ S.H. ”), at para. 124 ). [ 23 ] The factors enumerated in section 10(3) are not examples of factors associated with the best interests of an Indigenous child.

They are specific categories that must be addressed ( S.H. at para. 125 ). [ 24 ] The most significant difference between The Child and Family Services Act, CCSM c C80 (the “ Act ”), and the Federal Act in regards to this hearing is the Federal Act ’ s direction that the best interests of the child be considered at all stages of the process, whereas the Act only requires the best interests of the child to be considered when a particular

section or subsection directs ( S.H. at para. 126 ). [ 25 ] Under the Act , the best interests of a child would only be considered if, after determining there is no genuine issue requiring a trial as whether the child was and still is in need of protection, what order is in the best interests of a child. [ 26 ] The best interests of an Indigenous child shall be taken into account in assessing the entirety of the Agency’s application. This means that the best interests of the child need to be considered also when determining whether the child is in need of protection. [ 27 ] A further consideration is the Federal Act’ s direction with regard to the placement of Indigenous children.

Section 16 of the Federal Act directs that the placement of Indigenous children be prioritized, to the extent it is consistent with the best interests of the child, as follows: (

a) with one of the child’s parents; (

b) with another adult member of the child’s family; (

c) with an adult who belongs to the same Indigenous group, community, or people as the child; (

d) with an adult who belongs to an Indigenous group, community, or people other than the one to which the child belongs; or (

e) with any other adult. ISSUES [ 28 ] The issues for determination in this motion are as follows: (

a) is

summary judgment a fair and just method of adjudication in the circumstances of this case? 1. Does

summary judgment allow the judge to make the necessary findings of fact; 2. Does

summary judgment allow the judge to apply the law to the facts; and 3. Is

summary judgment a proportionate, more expeditious and less expensive means to achieve a just result than going to trial; (

b) Is there a genuine issue requiring a trial as to whether the child is in need of protection at the time of this hearing and if so, is there a genuine issue requiring a trial as to what order is in the best interest of the child? (

c) If there is a genuine issue requiring a trial, can the trial be avoided by weighing the evidence, evaluating credibility, drawing inferences and / or calling oral evidence? ANALYSIS AND DECISION IS

SUMMARY JUDGMENT APPROPRIATE? [ 29 ] As to whether

summary judgment is a fair and just method of adjudication in the circumstances of this case, I am satisfied that it is. [ 30 ] The facts needed to make a determination in this matter are available to the Court. The Agency filed affidavits from their family service worker, direct service worker, and proposed placement for the child. Each of those affiants were cross-examined and the transcripts from those cross-examinations were available for the hearing. [ 31 ] The Agency also filed an affidavit of Dr. Enns, which contained his parental capacity assessment dated March 1, 2022 (the “Report”).

There was no issue raised with respect to Dr. Enns’ qualifications. Dr. Enns was cross-examined during the hearing.

[ 32 ] The parents each filed their own affidavit, and were cross-examined. [ 33 ] I pause here to note that the parents only filed affidavits of themselves. No third party affidavits were provided on behalf of the parents, although the Father did attach to his affidavit correspondence from Dan Jardine, from The Counseling Centre, dated June 24, 2022. [ 34 ] A responding party to a motion for

summary judgment ought to put their best foot forward, with respect to their evidence, to establish that there is a genuine issue requiring a trial (see 5976511 Manitoba Ltd. et al. v. Taylor McCaffrey LLP et al. , 2020 MBQB 48 , at para. 39 ). [ 35 ] In this case,

summary judgment allows the Court to make the necessary findings of fact and allows the Court to apply the law to the facts. [ 36 ] The factual issues relating to whether the child is in need of protection are before the court and the court is able to make a determination regarding those facts, and apply the law to those facts. [ 37 ] The question of whether

summary judgment permits a fair and just adjudication should not be conflated with whether there is a genuine issue requiring a trial. [ 38 ] A trial would offer no substantive difference in the evaluation of the evidence than what has been provided to the court. As noted in Dakota at para. 82 (in quoting Hryniak ), in considering the factors of whether

summary judgment will provide a fair and just adjudication, there may be a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it. Even if the evidence available is limited, there may be no reason to think better evidence would be available at trial. [ 39 ] Such is the case here – the parents had an obligation to put their best foot forward from an evidentiary standpoint, and they did. There is no reason to think that better evidence could or would be available at the trial of this matter. [ 40 ]

Summary judgment allows the court to make the necessary findings of fact and apply the law to those facts. Given the nature of the issues and the nature and strength of the evidence,

summary judgment is a proportional procedure in this case. The court is able to make the necessary findings of fact, and apply the law to those facts, to determine if the child continues to be in need of protection, and to determine what order is in the best interest of the child, considering the best interests of the child at each stage of determination. [ 41 ]

Summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial and is therefore a fair and just method of adjudication. IS THERE A GENUINE ISSUE REQUIRING A TRIAL REGARDING WHETHER THE CHILD WAS IN NEED OF PROTECTION AT THE TIME OF HEARING? [ 42 ] In determining that

summary judgment is available in this matter, the Agency bears the evidential burden of establishing that there is no genuine issue requiring a trial ( see Dakota at para. 108 ). IN NEED OF PROTECTION [ 43 ] Sections 17(1) and (2) of the Act set out what to consider in determining if a child is in need of protection. [ 44 ] Section 17(1) of the Act states that for purposes of the Act , a child is in need of protection where the life, health or emotional well-being of the child is endangered by the act or omission of a person. [ 45 ] Section 17(2) sets out examples of conduct that is illustrative of where a child might be in need of protection, including where the child: (

a) is without adequate care, supervision or control; (

b) is in the care, custody, control or charge of a person (

i) who is unable or unwilling to provide adequate care, supervision or control of the child, or (ii) whose conduct endangers or might endanger the life, health or emotional well-being of the child; (

c) is likely to suffer harm or injury due to the behaviour, condition, domestic environment or associations of …. a person having care, custody, control or charge of the child. [ 46 ] The Agency has established a prima facie case that the child is in need of protection at the time of this hearing. CONCERNS REGARDING THE MOTHER [ 47 ] The Agency’s evidence justifying the continued need of protection with respect to the Mother includes the following:

a) Mother has three other children who are permanent wards of the Agency, due to her mental health concerns and cognitive delays;

b) t hose mental health concerns and cognitive delays impact and interfere with the Mother’s ability to provide adequate care and supervision of the child;

c) a s noted in the Report, due to the Mother’s multiple serious cognitive and mental health conditions, and their effects on her ability to parent effectively, there is a very low probability of the Mother being able to provide the child with the care and home environment she

needs;

d) t he Mother has shown an inability to care for herself. Mother was late attending the pre-arranged date for cross-examinations on affidavits, advising that she got lost and was “kind of winging it”; and

e) Mother confirmed during her cross-examination that she struggles to remember to take her medications, despite having a homecare worker who calls or attends to remind her to do so. [ 48 ] The Mother does have supports from Turning Leaf as well as a homecare worker. Both Turning Leaf and the homecare worker attend several times a day, several days a week. The Mother avers that with the assistance of these supports, she can parent the child.

Despite this belief, the evidence does not substantiate same, nor does this belief create a genuine issue requiring a trial. [ 49 ] To date, the evidence of the Agency demonstrates that the Mother has done little to address those ongoing concerns.

The unfortunate reality for the Mother is that given her mental health issues and cognitive concerns, there is likely very little the Mother could do to demonstrate that she is able to provide adequate care to the child. [ 50 ] Although those mental health issues and cognitive concerns are of no fault of the Mother, they negatively impact the Mother’s ability to parent the child. [ 51 ] Dr. Enns, in arriving at his conclusion, included the use of these supports, as well as the support of the Father. [ 52 ] Dr.

Enns noted that the Mother becomes dysregulated, and was not consistent with the regulation of her behaviour. This inconsistent regulation of her behaviour would be psychologically harmful to the child, should the child observe same. Dr. Enns confirmed, during his cross-examination, that he saw first-hand this unstable behavior. [ 53 ] Dr. Enns confirmed in cross-examination that the Mother has weak underlying control of her behaviour, and a lack of stability, both emotional and cognitive. [ 54 ] Although the Mother may have access to supports, Dr.

Enns confirmed in cross-examination that it is difficult for the Mother to use those resources because of her underlying mental health issues and cognitive issues. [ 55 ] Given that evidence, and the concerns raised by the Agency, I am satisfied that the Agency has established a prima facie case that the Mother is currently unable or unwilling to provide adequate care, supervision or control of the child, and that the child would likely to suffer harm or injury due to the behaviour, condition, or domestic environment of the Mother. [ 56 ] Given the totality of that evidence, the Agency has established its prima facie case that the child was in need of protection at the time of hearing. [ 57 ] Having found that the Agency has met its prima facie case to demonstrate that the child is in need of protection, the onus then falls to the Mother to show that there is a genuine issue requiring a trial. [ 58 ] The Mother has not met that onus to show that there is a genuine issue requiring a trial. [ 59 ] The Mother’s evidence does not demonstrate that she has taken active steps to address these issues in any meaningful way. [ 60 ] Again, given the severity of the concerns relating to the Mother’s mental health and cognitive concerns, it would be difficult for the Mother to have taken those steps, so as to demonstrate a genuine issue requiring a trial. [ 61 ] With respect to the whether the child is currently in need of protection, the Mother has not met her onus to displace the Agency’s prima facie case.

CONCERNS REGARDING THE FATHER [ 62 ] The Agency’s evidence justifying the continued need of protection with respect to the Father includes the following:

a) the Father has a long-standing history of using cannabis as a form of self-medication, which would interfere with his ability to function;

b) his daily cannabis use is likely to be harmful for his neurological, psychological, and general health;

c) Father confirmed in his affidavit that he continues to struggle with anxiety; and

d) Dr. Enns’ conclusion that the Father has a low probability of being able to provide an adequately safe, nurturing and structured home environment that the child would need to flourish, and to provide for her developmental needs now and in the future. [ 63 ] The Father suffers from anxiety and uses the CBD oil to assist with the control of his symptoms from anxiety. There is no criticism of the Father for suffering from anxiety. The concern, however, is how he is treating same. [ 64 ] The Father was advised through the report of Dr.

Enns that his daily use of cannabis was harmful, and that he ought to attend to a physician to address his anxiety. He has not done so. Further, the Father is using the cannabis prior to his visits with the child. [ 65 ] The Father confirmed during his cross-examination that he has not used CBD oil during any of his visits with the child, but has used the CBD oil before those visits.

Although there is no evidence of the Father being “high” during any visits with the child, his decision to use cannabis prior to the visits, and his omission in attending to a physician, reflect upon the Father’s poor decision making.

[ 66 ] Given that evidence, and the concerns raised by the Agency, I am satisfied that the Agency has established a prima facie case that the Father is currently unable or unwilling to provide adequate care, supervision or control of the child, and that the child would likely to suffer harm or injury due to the behaviour, condition, or domestic environment of the Father. [ 67 ] Given the totality of that evidence, the Agency has established its prima facie case that the child was in need of protection at the time of hearing. [ 68 ] Having found that the Agency has met its prima facie case to demonstrate that the child is in need of protection, the onus then falls to the Father to show that there is a genuine issue requiring a trial. [ 69 ] The Father has not met that onus to show that there is a genuine issue requiring a trial. [ 70 ] The Father’s evidence does not demonstrate that he has taken active steps to address these issues in any meaningful way. [ 71 ] Dr.

Enns did note that the Father may have the potential to make changes to parent the child effectively in the future, but that these changes would need to be sustained over the course of a year. [ 72 ] Dr. Enns recommended to the Father that in lieu of self-medication with cannabis, that he attend a family physician, so as to address the issues requiring the Father self-medicating. [ 73 ] The report was prepared in March of 2022, the Father being advised in that report to attend to a physician.

As of the date of the hearing, there was no evidence provided by the Father that he had done so. [ 74 ] This is not a high bar for the Father to meet. There was no explanation provided by the Father as to why he had not attended to a physician. Had he done so, there would have been evidence to argue that the Father is on the path to making the necessary changes so as parent the child effectively, thereby demonstrating a genuine issue requiring a trial. [ 75 ] However, that evidence was lacking. [ 76 ] Father is attending counselling with Dan Jardine.

However, the correspondence from Dan Jardine notes that this counselling focuses on the relationship between the Mother and Father, rather than on any specific issue relating to the Father’s mental health. [ 77 ] Dr. Enns recommended that the Father engage in long term individual counselling. The correspondence of Mr. Jardine does not address that concern.

The correspondence indicates that the Father began counselling on June 17, 2020, which pre-dates the pronouncement of the Temporary Order. [ 78 ] Two years have passed, and there is little to no evidence to suggest that the Father has engaged in the counselling as recommended by Dr. Enns. [ 79 ] The Father providing this correspondence does not demonstrate a genuine issue requiring a trial. It demonstrates that the Father and Mother are in counselling, but does nothing to address to the specific issues identified by Dr.

Enns regarding the Father so as to demonstrate a genuine issue. [ 80 ] In considering all of the evidence, the Father has not met his onus.

With respect to the whether the child is currently in need of protection, the Father has not met his onus to displace the Agency’s prima facie case. [ 81 ] I am also satisfied that even if I were to consider the parents’ ability to parent together, so as to overcome any parenting deficiencies one may have, that does not demonstrate a genuine issue requiring a trial. [ 82 ] Given the significant mental health concerns of the Mother, I am not satisfied that the Father could make up any parenting deficiency, if that were even possible. [ 83 ] Dr.

Enns did confirm in cross-examination that the strength of one parent could make up for the weakness of another. However, given the concerns relating to these parents, this could not happen. [ 84 ] Despite the Father reminding the Mother when she woke that cross-examinations were scheduled for that day, the Mother was lost and late in arriving.

It is difficult to conceive how the Mather will be able to ensure the Mother is able to parent the child in circumstances where she is not likely to suffer harm if he cannot ensure the Mother attends an appointment on time, despite his best efforts. [ 85 ] Father argues that Dr. Enns not considering the intergenerational trauma that the Father suffered in the Report results in a genuine issue requiring a trial. [ 86 ] Dr.

Enns, during his cross-examination, confirmed that issues relating to the Father’s experience with residential schools and the 60’s Scoop were assumed to be in existence and played a significant role in the Father’s life. [ 87 ] As an apprehension involves the making of a decision, or the taking of an action, the best interests of the child must be a primary consideration in the making of that decision, or the taking of that action (see s. 10(1) of the Federal Act ). [ 88 ] In considering the best interests of the child as is required by the Federal Act , and in considering the factors as set out in s. 10(3) of the Federal Act , the best interests of the child still require a determination that she was in need of protection at the time of the hearing. [ 89 ] Apprehension of a child can be in and of itself harmful to a child and the family. [ 90 ] Keeping this child in the care of the parents would have addressed the cultural and spiritual heritage of the child, her need for

bonding with the parents, and the stability that would have provided the child. [ 91 ] However, those best interest concerns do not outweigh the need for apprehension, and continued need for apprehension, given the serious concerns regarding the parents, as previously referenced.

IS THERE A GENUINE ISSUE REQUIRING A TRIAL AS TO WHAT ORDER IS IN THE BEST INTERESTS OF THE CHILD? [ 92 ] The Agency bears the evidential burden of establishing that there is no genuine issue requiring a trial as to what order is in the best interests of the child. [ 93 ] Given the concerns raised regarding the parent’s ability to parent the child, the Agency has met its onus to demonstrate that a permanent order is in the best interests of the child. [ 94 ] The child needs and deserves some stability and finality regarding her future care plans.

The Temporary Order was previously pronounced so as to provide the parents with an opportunity to address any parenting concerns in a meaningful way. That has not happened. [ 95 ] Despite the passing of approximately 18 months since the Temporary Order expired in December of 2020, the parents are in essentially the same position. [ 96 ] In considering all of the evidence, the parents have not met their onus.

With respect to the whether a permanent order is in the best interests of the child, the parents have not met their onus to displace the Agency’s prima facie case. [ 97 ] The parents must not just demonstrate that there is an issue, but a genuine one, requiring a trial. [ 98 ] Mother argues that there are three areas which raise genuine issues requiring a trial. First, that Dr. Enns did not evaluate the resources available to the Mother. Second, any changes in the Mother from the date of the Report to the hearing.

Lastly, Gladue factors were not specifically addressed by the Report. [ 99 ] In support of that argument, Mother relies on Children’s Aid Society of Brant v. C.G. , 2014 ONCJ 197 (“ C.G. ”) . The court in C.G. found three triable issues, being:

a) what was the mother’s background and how that did or did not prepare her to parent;

b) what resources are available to help the mother learn to parent; and

c) w hat timeframe is realistic for mother’s rehabilitation as a parent in order to balance that with the child’s retaining the potential to be adopted? [ 100 ] With respect to the resources available to the Mother, Dr. Enns did confirm in cross-examination that he did consider the resources available to the Mother. Unfortunately for the Mother, the conclusion of Dr. Enns was that her mental health and cognitive issues, even with those supports, were too significant. [ 101 ] With respect to any changes of the Mother, there was no evidence of any significant change between the Report and the hearing.

No timeframe is realistic for the Mother to demonstrate changes, again given her significant issues. [ 102 ] With respect to her background and Gladue factors, the existence of those factors in and of themselves do not create a genuine issue requiring a trial. [ 103 ] There must be an analysis of how that personal history affects the parent’s ability to parent. [ 104 ] In Michif CFS v. K.L.B. and A.P. , 2022 MBQB 144 (“ K.L.B. ”) , the mother also experienced significant abuse and trauma in her life, which she was addressing through her drug and alcohol use.

At the hearing in K.L.B. , the mother acknowledged that she needed to address that trauma in a healthy manner, and had begun the process of seeking long-term treatment. [ 105 ] In this case, there is no allegation of the Mother using alcohol or drugs.

Rather, and unfortunately, the abuse and trauma suffered by the Mother has manifested itself in such a manner that no amount of support will provide the ability of the Mother to parent. [ 106 ] How the abuse and trauma suffered by a parent manifests itself must be considered by the court in considering whether it is possible for the court to plot a path of reunification. [ 107 ] While each case may have consistent themes, each case is unique in considering how the abuse and trauma manifests itself, what steps, if any, a parent has taken to address same, and whether those steps can result, in a reasonable period of time, an ability to safely parent a child. [ 108 ] The Mother having suffered childhood trauma and abuse in and of itself does not create a genuine issue requiring a trial. [ 109 ] Although Dr.

Enns did not specifically refer to what are commonly known as Gladue factors in his report, during cross- examination, he did confirm that those factors were considered by him, in arriving at his conclusions. [ 110 ] A permanent order ought to be an order of last resort. A court should try to plot the course most likely to remedy parental inadequacies and bring about a family reunion.

If this court is to plot a course most likely to remedy parental inadequacies, then the causes of those inadequacies are relevant. [ 111 ] The effect of residential schools, poverty, displacements, and substance abuse all impact on why a person may be before the

court. A thorough canvassing of those factors with a parent would help the court understand why a parent is in child protection court(see C.G.). [112] The Supreme Court of Canada, within the sentencing context in criminal proceedings has instructed judges to consider certainfactors in the sentencing of Indigenous offenders (R. v. Gladue, [1999] 1 SCR 688, (SCC) (“Gladue”)). Similarconsiderations should apply in child protection hearings (see New Brunswick (Minister of Social Development) v.

A. (M.), 2014 NBBR130, 2014 NBQB 130, at para. 83 and Alberta (Child, Youth and Family Enhancement Act, Director) v JSA, 2019 ABPC 32, at para.15). [113] The parents, in their affidavit material, did not raise Gladue considerations as part of the overall concerns that affect their ability toparent the child. [114] For the purpose of this hearing and decision, I am prepared to acknowledge and consider that the issues the parents face can bepartially attributed to the legacy of colonialism as detailed by the Supreme Court of Canada in Gladue. [115] While those issues may be explained in part by Gladue factors, and unlike in a criminal proceeding where those factors areconsidered in a punitive setting, in this case, those factors are being considered in the context of what order is in the best interest of thechild. [116] However, in this case, given those Gladue factors, the ongoing nature of the parenting concerns, and the fact that the parents havenot meaningfully addressed those concerns, the conclusion is that a permanent order is in the best interests of the child.

I am notdiminishing or minimizing those Gladue factors. In this case, however, those factors cannot overcome the conclusion of a permanentorder being in the best interests of the child. [117] In considering what other orders are available, there is no time available for a further temporary order pursuant to s. 41(1) of theAct. [118] It is not necessary to determine whether an alternate placement order pursuant to s. 38(1)(

b) of the Act with a transfer ofguardianship to the Agency is legally available, as even if it were, such an order is not in the best interests of the child. I addressed theavailability of such an order in K.L.B., having found such an order was available. [119] Unlike the mother in K.L.B., these parents have taken very little, if any, steps in addressing the concerns of the Agency. [120] Dr. Enns noted in this case with respect to the Father, and the mother in K.L.B., that each had the potential to make changes toparent their child in the future.

Unlike the mother in K.L.B., the Father has not demonstrated that he has taken steps to demonstrate thosechanges. [121] Dr. Enns recommended that the Father engage in long-term individual counselling, that he pursue vocational activities, and thathe establish a relationship with a physician. There is no evidence of the Father to demonstrate he has taken those steps, to againdemonstrate that there is a genuine issue requiring a trial as to whether an order pursuant to s. 38(1)(

b) is in the best interests of the child. [122] Pursuing vocational activities or establishing a relationship with a physician are not impossible goals to meet, especially in thecontext of the Father arguing he is able to parent the child. Had there been evidence of such steps being taken, there may have been anargument that there is a genuine issue requiring a trial in relation to whether an order pursuant to s. 38(1)(

b) is in the best interests of thechild. [123] Accordingly, there is no genuine issue requiring a trial as to what order is in the best interests of the child. [124] A determination that a permanent order is the order to be made in this case, is the making of a decision, or the taking of an action,and accordingly, the best interests of the child must be a primary consideration in the making of that decision, or the taking of that action(see s. 10(1) of the Federal Act). [125] In considering the best interests of the child as is required by the Federal Act, and in considering the factors as set out in s. 10(3)of the Federal Act, the best interests of the child still require a determination a permanent order is in her best interests.

Thatdetermination would be made whether pursuant to the Act, or the Federal Act. [126] Section 10(3) of the Federal Act sets out the factors that must be considered in considering the best interests of the child. Withoutelevating any one of those factors, a permanent order addresses the child’s need for stability. [127] S.S., the current licensed kinship placement for the child, is the aunt of the Mother.

S.S. provides a stable environment for thechild, an environment where the needs of the child can be addressed. [128] S.S. also has the child’s older sister in her care, thereby also preserving that sibling relationship. [129] In considering s. 16 of the Act, and the prioritized placement of the child, neither the Mother nor Father are in a position to parentthe child. [130] The current placement with S.S., who is the Mother’s aunt, is a kinship placement with an adult member of the child’s family, inaccordance with s. 16(1)(

b) of the Federal Act. [131] Accordingly, I am satisfied that the Agency has met its prima facie case demonstrating that a permanent order is in the bestinterests of the child. [132] I am also satisfied that the parents have not displaced their evidential onus to show that there is a genuine issue requiring a trial asto what order is in the best interests of the child.

[ 133 ] The parents have not met their evidential onus to demonstrate, for example, that they are in a position to care for the child pursuant to a supervision order. [ 134 ] There is no genuine issue requiring a trial as to what order is in the best interests of the child, that order being a permanent order. [ 135 ] There will be an order for a Permanent Order, the child being placed with S.S. [ 136 ] It is acknowledged that conditions cannot be placed on an Agency should a permanent order be granted (see Anishinaabe C.F.S. v.

D.A. et al , 2017 MBQB 7 (“ D.A. ”), at para. 40 ). [ 137 ] Should there be a gap in the legislation, the court can exercise its parens patriae jurisdiction to impose conditions so as to address any such gap ( D.A. at para. 53 ). [ 138 ] The Permanent Order is pronounced pursuant to the Act . Pursuant to s. 16(3) of the Federal Act , the Agency has an obligation to conduct a reassessment as to whether such a placement is appropriate. [ 139 ] There is nothing in either the Act or Federal Act that speaks to any obligation of an Agency to advise a parent of the outcome of such a reassessment.

Until the enactment of the Federal Act , there was no requirement under the Act for such a reassessment.

The Federal Act does not preclude a permanent order, but requires a reassessment should a child not be placed with a parent. [ 140 ] In attempting to interpret both pieces of legislation in a harmonious manner, there is a gap in the legislation, regarding the notice to be provided to a parent when a reassessment of the order takes place pursuant to s. 16(3) of the Federal Act . [ 141 ] Accordingly, there will be a condition of the permanent order so as to address the identified gap in the legislation regarding the notification to be provided to a parent, when a reassessment pursuant to s. 16(3) of the Federal Act has taken place. [ 142 ] Provided the parents, or either one of them, is exercising access to the child at least on a monthly basis, the Agency shall advise the parents of the outcome of the reassessment pursuant to s. 16(3) of the Federal Act , within 30 days of such reassessment taking place. [ 143 ] The Agency has an obligation to conduct such a reassessment regardless of any access by the parents.

It is only if the parents are exercising that access that the Agency has an obligation to notify the parents of the outcome of the review. ORDER GRANTED [ 144 ] Accordingly, the Agency’s motion for

summary judgment is granted. A Permanent Order will be ordered, subject to the one condition regarding notification to the parents of the outcome of the reassessment pursuant to s. 16(3) of the Federal Act . __________________________J.