Director of Child and Family Date:, 2010 MBCA 112

Citation: Director of Child and Family Date: 20101213 Services v. D.M.G. et al., 2010 MBCA 112 Docket: AH 10-30-07349 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : THE DIRECTOR OF CHILD AND FAMILY ) C. L. Dunn SERVICES ) for the Applicant ) (Petitioner) Respondent ) ) K. J. Janovcik and - and - ) A. Thiessen ) for the Respondent The D.M.G. and W.G.S. ) Director of Child and ) Family Services ) (Respondents) Respondents ) ) D. L.

Carlson - and - ) for the Respondent ) The Attorney General for J.A.M.P. ) Manitoba ) (Respondent) Applicant ) ) Chambers motion heard: - and - ) October 26, 2010 ) THE ATTORNEY GENERAL FOR ) MANITOBA ) Decision pronounced: ) December 13, 2010 Respondent ) NOTICE OF RESTRICTION ON PUBLICATION: No one may disclose any information likely to identify any person involved in the proceedings as a party or a witness (see s. 75(2) of The Child and Family Services Act , C.C.S.M., c. C80).

STEEL J.A. 1 The applicant, J.A.M.P., wishes to appeal a permanent order of guardianship pronounced on February 11, 2010, and signed on March 8, 2010. 2 Pursuant to s. 44(1) of The Child and Family Services Act , C.C.S.M., c. C80 (the Act ), any party seeking to appeal a permanent order of guardianship has 21 days from the date on which the order was signed to file their notice of appeal.

Pursuant to s. 44(3) of the Act , a notice of appeal shall be served on the Director and all parties affected by the notice of appeal within 10 days from the date of the notice of appeal having been filed. 3 The applicant’s notice of appeal was filed on April 1, 2010, three days past the limitation date set out in the Act . It was not served on the Director until June 1, 2010, approximately 54 days past the limitation date set out in the Act .

The Attorney General for Manitoba was served on July 26, 2010, approximately 110 days past the limitation date and the respondents D.M.G., the mother of the children, and W.G.S., the biological father of the older child, were served about August 5, 2010, approximately 120 days past the limitation date. 4 Because this applicant’s notice of appeal was filed and served outside of the timelines provided for in the Act , he now brings a motion for an order extending the time for filing and service of the notice of appeal pursuant to s. 44(2) of the Act . 5 The applicant also brings a motion seeking an order to amend the style of cause to include the Attorney General for Manitoba as a party and an order that the time for filing and service of the notice of appeal not begin to run until the final disposition of this motion.

The Director of Child and Family Services also brought a similar motion. Should the applicant be successful on his motion,

his notice of appeal continues to challenge the constitutionality of the Director’s actions. The Attorney General for Manitoba should, accordingly, be named as a party.

With the consent of all parties, an order was granted adding the Attorney General for Manitoba as a party and ordering that the time for filing and service of the notice of appeal not begin to run until the disposition of this motion to extend time to file and serve the notice of appeal. 6 The style of cause of the appeal was also amended by consent to substitute the name D.M.P. with the name D.M.G. 7 The Director also brings a motion for an order striking the notice of appeal for having been filed and served out of time. I ordered the parties to proceed first with the applicant’s motion.

Obviously, depending on the disposition of the applicant’s motion, the Director’s motion may become unnecessary. Motion to Extend Time to File and Serve the Notice of Appeal 8 Under the Court of Appeal Rules (Civil), the time for filing and service of a notice of appeal is 30 days from the time of filing of the judgment being appealed (see Rule 11(1)).

With respect to child protection proceedings that timeline has been changed by statute to 21 days for the filing of the notice of appeal and 10 days thereafter to serve it. 9 These abbreviated timelines reflect a desire on the part of the Legislature to take into account the unique and nuanced challenges that adversarial litigation presents in the context of child protection proceedings. Not the least of these challenges is the recognition of a child’s need for stability and a sense of permanence, both of which can be irreparably compromised by unduly prolonged litigation.

Accordingly, the timelines that would otherwise govern a normal appeal process have been shortened by the Legislature precisely in recognition of these challenges. 10 However, s. 44(2) of the Act does permit motions to extend those abbreviated time limits. It states that a judge of this court may extend the time for appeal “if good cause is shown for the delay and if the child has not been placed for adoption.” Section 44(2) of the Act has not been substantively considered before by this court. 11 The criteria for the extension of time in matters not related to children are well known.

Applicants must demonstrate that: 1. there was a continuous intention to appeal from a time within the period when the appeal should have been commenced; 2. that there is a reasonable explanation for the delay; 3. that there are arguable grounds of appeal; and 4. that any prejudice suffered by the other party can be addressed. See Zalizniak v. Zalizniak , 2006 MBCA 161 , 212 Man.R. (2d) 114 (in chambers) , and Bohemier et al. v.

CIBC Mortgages Inc. , 2001 MBCA 161 , 160 Man.R. (2d) 39 . 12 Even if not all the criteria are satisfied, the court may still grant the extension if it is right and just in all of the circumstances that time for commencing the appeal be extended. See Hunter v. Hunter , 2000 MBCA 134 , 150 Man.R. (2d) 291 (in chambers) . 13 I believe that these criteria would also be applicable to a motion under s. 44(2) of the Act in determining whether the court should exercise its discretion in favour of granting the extension of time.

However, I also believe that I must consider the best interests of the children, a factor which is a paramount consideration with respect to proceedings under the Act . Respect for the child’s sense of time sustains the child’s best interests. Delay is of particular concern in child protection proceedings where an expeditious resolution and permanency planning are in the child’s best interests. Therefore, delay takes on a heightened concern in this type of proceedings.

Such a consideration is no different than considering whether prejudice would result to the other party, except here, that party is not the opposing party, but the children involved in the case. 14 Accordingly, when courts are asked to extend the abbreviated appeal periods provided for in the Act , they should do so taking into account the special considerations present in child protection proceedings. As held by Cromwell J.A. (as he then was) of the Nova Scotia Court of Appeal in Nova Scotia (Minister of Community Services) v.

S.E.L. and L.M.L. , 2002 NSCA 62 , 205 N.S.R. (2d) 104 (in chambers) (at paras. 10-12 ): In many civil cases, extensions of time are often granted quite readily especially where the delay is short and the party seeking the extension is not represented by counsel. However, extensions of time for appealing under the Act [ Children and Family Services Act , S.N.S. 1990, c 5] call for the consideration of at least two special factors. The first is that, as in all proceedings under the Act , the best interests of the child or children are paramount. It is not a matter of doing

justice simply between the appellants and the respondent, but of serving the best interests of the child who is the subject of the proceedings. …. The delay in question here is less than two weeks.

However, the time limit for appealing must be placed in the context of the scheme of the Act having regard to the best interests of the very young child who is the subject of these proceedings …. 15 Having set out the relevant criteria to an application under s. 44(2) of the Act , I now turn to their application in this case. 16 The applicant submits that the delay in filing and serving was first because of inadvertence and second because of the delay in obtaining legal aid. He states that he was unable to act with respect to this matter until he retained counsel officially.

An agreement was made between the applicant and his counsel that although the notice of appeal was filed (with counsel’s name on it as counsel of record for the applicant), counsel would not act for him or serve the notice of appeal without a Legal Aid retainer being in place. The Legal Aid certificate for the appeal was not issued until June 30, 2010. 17 The applicant also submits that counsel is essential for him given the complexity of the issues and he relies on the case of New Brunswick (Minister of Health and Community Services) v.

G. (J.) , 1999 CanLII 653 (SCC) , [1999] 3 S.C.R. 46 , which discusses the need for legal representation in a case of this nature. 18 The applicant argues that the determination of his application for Legal Aid was beyond his control and he acted at the first available opportunity to pursue his appeal.

He submits that it would be grossly unjust not to be able to deal with his appeal, which was filed only three days late. 19 The paralegal’s statement in her affidavit that “the solicitor for [the applicant] believed that [the notice of appeal] was filed within the correct time period” is not only hearsay, it is double hearsay. The only evidence before this court regarding the applicant’s continuous intention to appeal is the hearsay evidence of counsel’s assistant.

Unfortunately, the applicant did not file an affidavit himself. 20 In any event, nothing in the affidavit explains the inordinate delay in serving the notice of appeal, regardless of when it was filed. Even assuming that counsel did not wish to go on the record until her retainer was confirmed, the Legal Aid certificate was confirmed on June 30 th .

The Attorney General for Manitoba was not served until July 26 th and the mother and biological father of the older child were not served until toward the beginning of August. 21 With respect to the reason for the delay, again the court is left with only hearsay evidence from counsel’s paralegal that issuance of the Legal Aid certificate was delayed because of a number of requests made by Legal Aid Manitoba of the applicant.

There is no detail as to the nature of these requests and no evidence as to whether the applicant was diligent in responding to those requests. 22 Were there arguable grounds of appeal, I might have overlooked the deficiencies in the evidence with respect to the above criteria. Given the complexity of the case and its nature (custody of children), legal representation for the appeal is necessary. A Legal Aid certificate was necessary to ensure that counsel was retained and reimbursed.

But, the applicant has not shown me that there is any merit to his grounds of appeal. 23 An arguable ground of appeal has been defined as a realistic ground which, if established, appears of sufficient substance to be capable of convincing a panel of the court to allow the appeal. See Coughlan et al. v. Westminer Canada Ltd. et al. (1993), 1993 CanLII 3254 (NS CA) , 125 N.S.R. (2d) 171 at para. 11 (C.A.) (in chambers) , as quoted in S.E.L. and L.M.L. , at para. 15 . See also Sentinel Self-Storage Corp. v.

Dyregrov et al. , 2003 MBCA 136 , 180 Man.R. (2d) 85 , Steel J.A. concurring in the result at paras. 23, 29- 33. 24 In the notice of appeal, three grounds are listed: first, it is argued that the decision is unreasonable and in particular that the trial judge erred in law in failing to consider a temporary order; second, it is argued that the trial judge erred in failing to find that there was a breach of the applicant’s right to a fair hearing, specifically with respect to the report of the assessor; and third, that the trial judge erred in failing to find a breach of the applicant’s right to freedom of expression under the Canadian Charter of Rights and Freedoms (the Charter ). 25 The only serious ground of appeal that has been pursued is the second ground relating to the assessor, Dr.

Ducharme’s parenting capacity report, which was submitted at trial, and his evidence. In her motion brief and her oral argument, counsel for the applicant referred only to the assessor’s report and its impact on the applicant’s right to a fair hearing. I have heard nothing further with respect to the argument that there should have been a temporary instead of permanent order. 26 Additionally, the trial judge’s decision makes crystal clear that this case has very little to do with freedom of expression and more to do with capacity to parent and the best interests of the children.

I agree with the trial judge when she stated that the applicant’s and the mother’s “ political or religious views, and the expression of those views, are really tangential to the child protection concerns that must predominate this case. I find that those views and their expressions are unworthy of the attention they have garnered” (at para. 96).

And further when she concludes that “[a] t the end of the day, this case was not so much about racism as it was about the protection of children from poor parenting” (at para. 106). 27 With respect to that parenting assessment, the applicant no longer takes issue with the fact that the completion of the report was delayed and was finished only approximately 10 days before the trial commenced. Nor is there any longer any dispute that the choice of Dr.

Ducharme as the assessor was agreed to by all parties. 28 Instead, the main thrust of the applicant’s point is that the parental capacity assessment was not carried out in a fair and equal

manner as between the two parents. The parenting assessment focussed too heavily on the mother, it is argued. So for example, Dr. Ducharme devoted 150 hours to the assessment generally, but only 20 hours were devoted to the applicant’s assessment. A particular objection is that Dr. Ducharme did not interview the children’s paternal grandparents and therefore, the trial judge did not have the benefit of Dr. Ducharme’s opinion as to the applicant’s parenting plan, which involved those grandparents. 29 Second, it is submitted that the trial judge erred in not considering the fact that Dr.

Ducharme used a psychometrist to administer tests to the applicant while Dr. Ducharme administered the tests to the mother himself. Moreover, the psychometrist did not testify at the trial and was not qualified as an expert witness. In addition, the applicant argues that Dr. Ducharme did not address the issue that the applicant did not answer a significant number of questions on some of the psychological tests, giving rise to questions about the validity of their results. 30 All of the above was material evidence that the trial judge did not comment upon in her reasons.

In short, it is submitted that she did not deal at all with the applicant’s argument that the parenting assessment was fundamentally flawed. It is further argued that the errors in the parenting assessment led to an unfair trial and thus to a breach of the applicant’s s. 7 Charter rights. Reliance is placed on the case of G. (J.) . The G. (J.) case held that s. 7 of the Charter 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 and participate meaningfully in the proceedings. See also Winnipeg Child and Family Services v. K.L.W. , 2000 SCC 48 , [2000] 2 S.C.R. 519 at para. 123 . 31 The parenting assessment was commissioned jointly by Child and Family Services and the parents with the authorization and permission of both parents. It was not the result of governmental legislation or action.

I am at a loss to understand how a flaw in the preparation of the assessment by the doctor would lead to a breach of the applicant’s fair trial rights. The applicant made the same argument at trial, except with respect to the delay in receiving Dr. Ducharme’s report. The trial judge did not accept his argument then and I do not accept it now. 32 Even if I did, there is no doubt that the applicant had an opportunity to present his case effectively and to participate in the proceedings in a meaningful way. He was represented by legal counsel throughout his trial. Dr.

Ducharme was cross-examined extensively by his counsel, as were all witnesses called by the Director. Full argument was made, both written and oral. 33 Instead of being structured as a Charter issue, I understand the real argument to be that the trial judge erred in her lack of appreciation of the fact that this assessment was, it is submitted, fundamentally flawed.

In that way, the argument then becomes a familiar one – that the trial judge made a palpable and overriding error in her handling and/or appreciation of the evidence or that she exercised her discretion incorrectly. 34 First, the evidence does not support the argument of the applicant that the parenting assessment was fundamentally flawed. Dr. Ducharme did not interview the grandparents because the applicant did not give his consent for the doctor to talk to anybody on his behalf. At the beginning of each assessment, Dr.

Ducharme asks each parent to give him the names of any collateral sources that the parent wishes interviewed. The doctor then reminds the parent at the next interview that he needs permission to interview collateral sources and he needs to be told which collateral sources the parent would like interviewed. The applicant did not give Dr. Ducharme a list of any collateral sources and specifically did not ask the doctor to speak to his parents. It seems a touch ironic that he now complains of Dr. Ducharme’s failure to speak to them. 35 Moreover, the essence of Dr.

Ducharme’s conclusion was that the applicant needed to become independent and stable for at least two years before he could recommend that the children be placed in the applicant’s care. So, the proposed plan whereby the applicant and the children would live with his parents for six months would not have satisfied his concerns. As Dr. Ducharme testified: … [W]hat [the applicant] needs to do is be on his own, not living with his parents, to set up his own place, to have a stable job, to begin to maybe look at some of the issues that I’m raising or that have been raised. 36 The fact that Dr.

Ducharme spent 20 hours with the applicant out of the total 150 hours spent on the assessment means nothing. In fact, Dr. Ducharme spent only eight hours with the mother. The assessment was comprehensive and the 150 hours reflected time spent with the children, interviewing collaterals, reading background and writing the report. The important point is that Dr. Ducharme described the process taken in performing the assessment. He was cross-examined on the process and questioned extensively on any preference given to the mother.

He testified that he was satisfied that the mother’s conduct did not affect the assessment and an extensive cross-examination on this point did not shake his opinion in any way. 37 So, for example, counsel for the applicant suggested to the doctor that in attempting to accommodate the mother, “that negatively impacted on your time and ability to thoroughly assess [the applicant’s] parenting capacity.” The doctor disagreed and instead stated that: .… So, relative to other persons undertaking similar assessments he’s received the same type of, of services that I would have given. 38 With respect to the validity of the psychometric testing, Dr.

Ducharme specifically testified that the applicant’s dyslexia was taken into account and would not have distorted the results. The doctor testified that:

.... … [H]e received support through the psychometrist to go through this because of his dyslexia. And it also has scales of validity. So, in other words, if he didn’t understand or misread the … questions or if the support that he received … in reading the questions interfered, it would have come out on the validity indices, and his, his profile is valid, so we, we can trust what we’re seeing. So, really, it’s self-report. 39 Dr. Ducharme also testified that the psychometrist that administered the tests is someone with whom he has worked for some time and that he checked their work and went over it with them.

He also testified that he is the one that scores the test and interprets the results. 40 Second, even if there was any substance to the above arguments, they were thoroughly explored at trial by counsel for the applicant in cross-examination and at argument. A review of the transcript of Dr.

Ducharme’s evidence and the written arguments that were submitted at trial by the Director and the applicant make clear that the issues now being raised were all thoroughly canvassed before the trial judge and that the trial judge had occasion to turn her mind to those issues when pronouncing a permanent order. 41 It is true that these particular issues did not find their way into the trial judge’s written reasons. The trial took many, many days, with many witnesses. The trial judge was entitled to weigh the evidence and decide the weight to be put upon it.

She did not have to comment on each piece of evidence or every area raised in cross-examination. The failure of a trial judge to include each and every one of the issues adduced at trial in her reasons for decision does not, by itself, impugn the validity of those reasons. After hearing his evidence in direct and cross-examination, the judge specifically found that she accepted the observations and recommendations of Dr. Ducharme.

Independently, she also came to the conclusion that the applicant’s “plan to have S.M.T.S. returned to him right away, to live with him and his parents for six months while he ‘gets his act together’, is not realistic and not in her best interests” (at para. 109), especially given the fact that he has made no attempt to get his act together “in any of the six-month periods between the apprehensions and the trial” (at para. 64). 42 Third, Dr.

Ducharme’s assessment, although an important piece of evidence, was not the only evidence supporting the thoughtful and careful conclusion reached by the judge. 43 For example, the applicant argues that his parents should have been interviewed by Dr. Ducharme. Yet the parents both took the stand at the trial. In fact, they were on the stand for two days. The judge had an excellent opportunity to evaluate them and their role in the proposed parenting plan. On the facts, the trial judge rejected that “plan” as impractical. 44 The same is true of the applicant’s argument with respect to the psychometric testing.

Counsel for the applicant thoroughly cross-examined Dr. Ducharme with respect to the fact that the psychometrist that he worked with had administered the tests to the applicant while the doctor scored and interpreted those results. Given the difficulty in getting the mother to attend for the assessment, Dr. Ducharme administered the tests to the mother himself. There is nothing to suggest that there is anything wrong with any of that. If the applicant suggests that there was, he could have brought evidence to support that argument. He did not. 45 Beside Dr.

Ducharme’s assessment, the mother and the older child’s biological father supported Child and Family Services’ plan and opposed guardianship being given to the applicant. In deciding that the children were in continuing need of protection, the trial judge reviewed the applicant’s history of violence, criminality, neglect of the children, drug and alcohol abuse, the living conditions of the children while living with the applicant and his proposed parenting plan.

A review of the reasons and references to the evidence supporting them make it clear that there was abundant evidence to support the trial judge’s conclusion. 46 In short, none of the arguments raise an arguable ground of appeal. The motion to extend time to file and serve the notice of appeal is dismissed. J.A.