2023 MBKB 153, 2023 MBKB 153

Date: 20221017 Docket: CP 19-02-01396 (Brandon Centre) Indexed as: C.F.S. Western MB. vs. M.A.M.O., et al. Cited as: 2023 MBKB 153 COURT OF KING'S BENCH OF MANITOBA (FAMILY DIVISION) B E T W E E N: CHILD AND FAMILY SERVICES WESTERN MANITOBA, ) ) ) ) Jack Cram petitioner, ) for the petitioner - and - ) ) M.A.M.O, and J. F. ) ) respondents. ) ) ) ) ) Melissa Jenin for the respondent M.A.M.O.

Myles Davis for the respondent J.F. ) ) ) Judgment Delivered: ) October 17, 2023 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. BACKGROUND

[1] Child and Family Services of Western Manitoba (the Agency) sought a permanent order in the name of Dakota Ojibway Childand Family Services (DOCFS), with respect to J.J.J.O.H., born in 2020 (the child). [2] Pursuant to my previous reasons pronounced in this matter (see C.F.S. Western MB. v. M.A.M.O., et al., 2023 MBKB 60) (theReasons), I had determined that a permanent order ought to be made (see para. 24), but in the name of the Agency, not DOCFS (see para.38). [3] Before pronouncing the permanent order, I had sought further information from the Agency, to ensure that there was sufficientevidence to address

section 16 of the Act Respecting First Nations, Inuit and Metis Children, Youth and Families, S.C. 2019 c. 24 (theFederal Act) (see para. 42). The further affidavit material was to address what efforts the Agency has undertaken or will undertake tospecifically consider

section 16 of the Federal Act, and what efforts, if any, the current foster placement will undertake to address thechild’s Indigenous heritage (see para. 52). [4] The Agency filed an affidavit of a social worker sworn July 5, 2023 (the Affidavit), in response to the requests set out in theReasons. [5] At the subsequent hearing, the Agency argued that as the Court was not functus officio, the issue of in which Agency’s nameought the Order be pronounced was still a live issue, given my error in considering the Child and Family Services AuthoritiesRegulations, Man.

Reg. 183/2003 (the Regulations). [6] In response, the mother argued that given the amendments to the Child and Family Services Act, C.C.S.M. c. C80 (the Act),which were not yet in force when the Reasons were delivered, but now are, permit the Court to consider a temporary order for the child. The Issues [7] The issues for determination are as follows:

a) Is the Court functus officio?

b) If not, was there a misinterpretation or misapplication of the Regulations?

c) If there was a misinterpretation or misapplication of the Regulations, what Order ought to be pronounced?

d) Regardless of whether there was a misinterpretation or misapplication of the Regulations, what Order ought to be pronounced? Analysis and Decision Is the Court functus officio? [8] L’Heureux-Dubé J. discussed the common law principle of functus officio in Chandler v. Alberta Association of Architects, (SCC), beginning at para. 10. An editorial note at para. 13 states: This is a practice point. It is well-settled that the court can vary any order before it is passed and entered. After it has been passed andentered, the court is functus officio, and can make no variation itself.

Any variation which may be made must be made by a court ofappellate jurisdiction. [9] Twaddle, J.A. considered the principle of functus officio in Ridout v. Ridout, 2003 MBCA 61 (“Ridout”), and stated at para. 11: … As a general rule, a judge lacks jurisdiction to rescind an order or judgment once it has been signed. The limited circumstances inwhich a signed order can be changed are set out in Queen’s Bench Rule 59.06. … [10] In this case, no order has been filed regarding the Reasons. My decision specifically contemplated the necessity of furtherevidence to be filed.

That evidence has been filed, but no order has been taken out regarding the Reasons. [11] As no order has been signed or filed, the Court is not functus officio. Was there a misinterpretation or misapplication of the Regulations? [12] In the Reasons, I relied on sections 3 and 4 of the Regulations, to conclude that section 4(1) of the Regulations granted themother the ability to choose the authority of service for the family. [13] The Agency now argues that the Court ought to consider the definition of family, in considering section 4(1) of the Regulations.

The definition of “family” under the Regulations is limited to “a child and the following persons with whom he or she resides: his or herparents – or one parent…” The Agency argues that with the pronouncement of a permanent order, the child would no longer be livingwith a parent, resulting in there no longer being a family, as defined in the Regulations, for the authority to service. [14] I do not accept that broad application of the definition of family, and its impact on section 4(1) of the Regulations.

If I were toaccept the Agency’s argument and the child is placed with a person who is not family as defined in the Regulations pursuant to atemporary order for example, even though the order is a temporary one, the parent loses the ability to choose the authority to provideservices.

[ 15 ] This is not and cannot be the intent of the Regulations . To accept the definition of family as sought by the Agency would create such a result. [ 16 ] In further support of its argument, the Agency relies on section 45(1) of the Act , which reads: Effect of Order of permanent guardianship 45(1) An order of permanent guardianship operates as an absolute termination of parental rights and obligations and the agency may, following the expiration of the allowable period of appeal under

section 44, place the child for adoption in accordance with The Adoptions Act . [ 17 ] The Agency had not referred to

section 45 of the Act prior to the Reasons being delivered. [ 18 ] The Agency argues that the parents’ right to choose an authority for the family is one of the parental rights that is terminated on the pronouncement of a permanent order. Such a termination of parental rights is not expressly set out in the Act . [ 19 ] The right to choose the authority of service survives the pronouncement of a permanent order. Section 4(1) of the Regulations permits a parent to choose the authority of service. There is no limiting language terminating that right upon the pronouncement of a permanent order. [ 20 ] Further,

section 9 of the Regulations addresses a requested change of authority of service by a parent. Section 9(1) of the Regulations permits a parent to make such a requested change, but it must be done in writing. [ 21 ] Section 9(5) of the Regulations does not permit the authorities to agree to a change of authority, in certain circumstances. Specifically, section 9(5)(

b) of the Regulations states that the authorities must not approve a requested change of authority of service if a proceeding involving the family under The Adoption Act, CCSM c A2 is ongoing. [ 22 ] Section 45(3) of the Act limits a parent’s ability to seek to set aside a permanent order. In addition to the temporal limitation of one year having to elapse since the expiry of the appeal period, the child cannot have been placed for adoption. [ 23 ]

Section 6 of The

Interpretation Act , CCSM c180 requires that every Act and regulation be interpreted as being remedial and must be given the large, fair and liberal

interpretation that best ensures the attainment of its objects. [ 24 ]

Section 2 of the Act states that the purpose of the Act is to support the safety, security and well-being of children through the provision of services that are designed to preserve, sustain and restore families in the least disruptive manner possible. [ 25 ] In attempting to interpret the Act and Regulations in a cohesive and remedial manner, noting one of the purposes of the Act being to sustain and restore families, the right of a parent to choose the authority of service survives the pronouncement of a permanent order. [ 26 ]

Section 9 of the Regulations permits a parent to seek to change an authority of service, provided there is no ongoing adoption process for the child. Section 45(3) of the Act permits a parent to seek to set aside a permanent order provided the child has not been placed for adoption. [ 27 ] Accordingly, until an adoption process has begun, a parent can seek to choose the authority of service. It is only the adoption process as a result of a permanent order which limits a parent’s right to choose the authority of service. [ 28 ] Such an

interpretation is remedial, and is also consistent with the purpose of the Act being the restoration of the family unit. [ 29 ] The Agency further argues that section 49(2) (

a) of the Act permits the director, upon the pronouncement of a permanent order, to transfer guardianship of a child from one agency to another. [ 30 ] Given my

interpretation of

section 45 of the Act , while section 49(2) (

a) of the Act does provide the authority of the director to transfer guardianship, this does not limit a parent’s right to choose the agency of service, until such time as an adoption process has begun. [ 31 ] Accordingly, there was no misapplication or misinterpretation of the Regulations . What Order ought to be pronounced? [ 32 ] When the Reasons were delivered, the amendments to the Act were not yet in force, such that the temporal limits for a temporary order remained. The parents consented to or at least did not oppose the permanent order, acknowledging that the child continued to be in need of protection.

As a result, a supervision order was not available, nor was a temporary order, given the temporal limits in existence.

While an alternate placement order was available, the child was placed with a foster family, no private guardians having applied for guardianship, nor any family members having been identified by the Agency as a possible placement. [ 33 ] The reality being at the time of the Reasons, should the child be in need of protection, the only order available to the parents, the Agency and the Court was a permanent order. [ 34 ] As of this hearing, the Act has been amended, such that there is no limit on the number of temporary orders that can be pronounced, the only limit being that each must not exceed two years.

[ 35 ] The amendments to the Act do not necessarily provide other options to the parties or the Court, unless those amendments were meant to provide not just prospective relief, but also retrospective. [ 36 ] In R. v. Dineley , 2012 SCC 58 , the Supreme Court set out the presumptions at play in determining retrospective/prospective analysis.

Deschamps J., for the majority, set out the issues at para. 10 as follows: • courts have long recognized that the cases in which legislation has retrospective effect must be exceptional, particularly where it affects either a substantive or vested right; • new legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively; and • new procedural legislation designed to govern only the manner in which rights are asserted or enforced does not affect the substance of those rights.

Such legislation is presumed to apply immediately to both pending and future cases. [ 37 ] In R. v. Ismail et al ., 2019 MBQB 150 , Martin J considered the issue of prospective/retrospective application of Parliament’s repeal of jury selection peremptory challenges under

section 634 of the Criminal Code, RSC 1985 c C-46 (the “ Code ”). [ 38 ] In his reasons, Martin J at para. 27 refers to Ruth Sullivan, Sullivan on the Construction of Statutes , 6 th ed. (Markham, Ont.: LexisNexis Canada Inc., 2014), noting that Professor Sullivan summarized the temporal application of laws at

section 25.25, pp. 760-61 of her text. Of importance, Professor Sullivan notes the following presumptions: 2. ...the legislature does not intend legislation to be applied retrospectively unless the legislation confers a benefit or was enacted to protect the public.

The weight of this presumption is unclear, but the better view is that it is variable, depending on factors such as the nature of the disadvantage imposed by the legislation and the degree to which imposing it would be arbitrary or unfair. 5. ...the legislature intends procedural legislation to apply immediately to pending or ongoing proceedings. [ 39 ] Martin J further notes at para. 28, that Professor Sullivan had this to say about fairness (section 25.9): In assessing the temporal application of legislation , another major consideration is fairness.

It is unfair to establish rules, invite people to rely on them, then change them in mid-stream, especially if the change results in negative consequences. Change that could, or should, have been anticipated by those affected at the time of reliance is less objectionable than totally unpredictable change.

Similarly, change that confers advantages on those affected is less objectionable than change that is purely or mostly detrimental. [ 40 ] It is trite to say that an amendment that removes any temporal limitation on the number of temporary orders that can be pronounced is a substantive rather than procedural right. [ 41 ] In discerning legislative intent, it is important to consider the fundamental principles of the Act , including the importance of the family unit, the right to the least interference with the affairs of families, the right of children to a continuous family environment, coupled with the purpose of the Act , as set out at

section 2 , being to support the safety, security and well-being of children through the provision of services that are designed to preserve, sustain and restore families in the least disruptive manner possible. [ 42 ] The principle of the best interests of the child, as set out at section 2(1) of the Act , in interpreting the Act and in making decisions in the context of the provision of services, has to also be given paramount consideration. [ 43 ] Given those principles and the importance of the consideration of the best interests of the child, the amendments to the Act were meant to have a retrospective application. [ 44 ] That is, although the apprehension of the child and the Reasons happened when there was a limit on the number of temporary orders available to the parties and the Court, the recent amendments to the Act permit a consideration of whether a temporary order now is in the best interest of the child. [ 45 ] Such

interpretation ensures that the preservations and sustaining of the family unit, and the best interests of the child, can best be met by the ability of the Court to consider a temporary order, regardless of when an apprehension may have occurred.

A retrospective application confers a benefit on the parents and the child. [ 46 ] Accordingly, a temporary order is available to the Court. [ 47 ] In considering the Reasons and the Affidavit, the issues become whether the Court ought to pronounce a permanent order or a temporary one. [ 48 ] From the Reasons, I made following conclusions: • The child requires stability and the parents require time to address their issues, and time to demonstrate their own stability (para. 20); • The child is doing well in the current placement, with no plans to adopt the child (para. 21); and

• The mother is at the beginning stages of addressing her issues (para. 22); [ 49 ] As noted at para. 52 of the Reasons, further evidence was sought by the Court, regarding

section 16 of the Federal Act , regarding efforts to ensure the placement priorities of that

section have been addressed, and what efforts have been undertaken to address the child’s Indigenous heritage. [ 50 ] Upon reviewing the Affidavit, I am satisfied that the Agency has undertaken steps to address the placement of the child, including considering family options. It is apparent that family or kinship placements are limited. [ 51 ] Regarding efforts by the foster family and the Agency to ensure the child’s Indigenous heritage has been considered, the evidence from the Affidavit is very limited.

The only reference to that concern comes at para. 22, where the affiant avers that “(the father) stated that he does not care which agency (the child) goes to. His lawyer has told him that (the child) would have Indigenous teachings for 1 hour a week”. [ 52 ] There is no evidence as to who would be providing those teachings. There is no evidence as to any other efforts that might be undertaken to expose the child to his Indigenous heritage. The evidence is sparse in this regard.

The evidence in this regard was limited at the time of the hearing, and despite the Court’s request for further evidence, it remains so. [ 53 ] While previously finding that the child required stability, and the parents needed time to deal with their own issues and demonstrate their own stability, both a permanent order and a temporary order of two years would meet those goals. A 2-year temporary order would allow the parents to attend long-term residential treatment, and then demonstrate their own stability for a period of several months. [ 54 ] A permanent order is an order of last resort.

While the mother may be at the very beginning of her efforts, given the ability of the Court to consider a temporary order, it cannot be said that the circumstances demonstrate that there is no further resort that can be made by the mother. [ 55 ] Further, given the limited evidence regarding the efforts to be undertaken by the Agency in relation to the child’s Indigenous heritage, a 2-year temporary order also permits the Court to remain involved to ensure that those important considerations for the child are being met by the Agency. [ 56 ] Accordingly, in considering the principles of the Act , the right of the mother to choose the agency of service, the steps taken by the mother, the best interests of the child, and noting that the matter is not one of last resort, a temporary order for a period of 2 years shall be ordered, in the name of the Agency.

Conclusion [ 57 ] In conclusion, the Court is not functus officio . There was no misinterpretation or misapplication of the Regulations . A temporary order for a period of 2 years is in the best interests of the child to be made in the name of the Agency. __________________________J.