First Nations of Northern Manitoba Child and Date:, 2014 MBCA 42

Citation: First Nations of Northern Manitoba Child and Date: 20140506 Family Services Authority v. Manitoba (Minister of Family Services and Housing) et al., 2014 MBCA 42 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron Docket: AH 12-30-07855 BETWEEN : FIRST NATIONS OF NORTHERN ) MANITOBA CHILD AND FAMILY ) SERVICES AUTHORITY ) J. B.

Harvie ) for the Appellant /Respondent (Applicant) Appellant ) First Nations of Northern ) Manitoba Child and Family - and - ) Services Authority ) THE GOVERNMENT OF MANITOBA as ) represented by THE MINISTER OF ) J. L. Funke FAMILY SERVICES AND HOUSING, ) for the Respondent/Appellant M.S., N.H., THE ) The Nisichawayasihk Cree NISICHAWAYASIHK CREE NATION ) Nation and Community AND COMMUNITY WELLNESS ) Wellness Centre CENTRE, R.E.F., J.A.M., and the said ) R.E.F. and J.A.M. as the guardians of ) R.S.S.M. (an infant) and A.I.F. (an infant) ) I. D. Frost and ) L. S.

Turner (Respondents) Respondents ) for the Respondent/Respondent ) The Government of ) Manitoba - and - ) ) ) Appeals heard: Docket: AH 12-30-07857 ) October 28, 2013 BETWEEN : ) ) FIRST NATIONS OF NORTHERN ) Judgment delivered: MANITOBA CHILD AND FAMILY ) May 6, 2014 SERVICES AUTHORITY ) ) (Applicant) Respondent ) ) - and - ) ) NISICHAWAYASIHK CREE NATION ) AND COMMUNITY WELLNESS CENTRE ) ) (Respondent) Appellant ) ) THE GOVERNMENT OF MANITOBA as ) represented by THE MINISTER OF ) FAMILY SERVICES AND HOUSING, )

M.S., N.H., R.E.F., J.A.M., and the said ) R.E.F. and J.A.M. as the guardians of ) R.S.S.M. (an infant) and A.I.F. (an infant) ) ) (Respondents) Respondents ) 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 ). STEEL J.A. [ 1 ] These appeals concern the right to an independent appeal provided by s. 51 of The Child and Family Services Act , C.C.S.M., c. C80 (the Act ), to foster parents.

The appeal provisions allow foster parents, who object to a decision to remove a foster child from their care, to have that decision reviewed first by the executive director of an agency, then by an authority, and lastly by an independent adjudicator appointed by the Minister of Family Services and Housing (the Minister).

The essential question that arises in this case is whether those rights of appeal apply when the children have been removed from the care of the foster parents in order to return them to their natural parents. [ 2 ] Two children were removed from their natural parents (the younger being apprehended at birth) in 2008 and 2009, and placed in the care of Ms S. and Mr. H. (the foster parents).

In January 2011, as part of a family reunification plan, the Nisichawayasihk Cree Nation and Community Wellness Centre (the agency) removed the children from the care of the foster parents and returned them to their natural parents. [ 3 ] Pursuant to s. 51(5) of the Act and s. 7 of the Foster Parent Appeals Regulation , Man. Reg. 185/2003 (the regulation), the foster parents asked for a review of that removal.

The agency and First Nations of Northern Manitoba Child and Family Services Authority (the authority) took the position that the appeal process was not available to them because the two children had been returned to their parents. Consequently, the agency was no longer their guardian and had no jurisdiction.

The Minister disagreed with that position and ordered that an independent adjudicator be appointed. [ 4 ] The authority applied to the Court of Queen’s Bench under Queen’s Bench Rule 14.05(2)(c)(iv) for a determination of rights under the relevant sections of the Act and regulation. [ 5 ] The application judge held that the provisions of the Act apply to all situations in which the agency wishes to remove the children from the care of the foster parents, including situations where the children are returned to their natural parents, and ordered the independent adjudication to proceed. [ 6 ] The agency and authority appeal, arguing that to interpret the Act in such a manner is an undue intervention and duplication of a court’s function.

Moreover, since the children are no longer in the care of the agency, the issue is now moot. [ 7 ] I would allow the appeal in part. It is true that the issue of the placement of these children is now moot. A court has determined that the children are no longer in need of protection and they were reunited with their family several years ago. All parties are in agreement that an adjudicator could not and would not now order these children returned to the foster parents.

Nor was there any evidence of any other ongoing lis or dispute between the foster parents and the agency. [ 8 ] However, I would exercise my discretion to decide the matter nonetheless, and interpret the legislation as to the rights and obligations arising from the relevant sections of the Act and regulation. Although these sections have been in force for a number of years, this question has not previously been litigated.

There are a number of foster parents, agencies and authorities to whom the answer to the issues in this case would be very relevant. [ 9 ] The legislation should be interpreted to include the right of foster parents to initiate the appeal process even when the children have been removed to return them to their natural parents. Therefore, both the agency and the authority had the jurisdiction and were required to conduct a review under the appeal provisions within the time limits specified.

These provisions serve a dual purpose, not only to determine the best placement for the children, but also to provide due process for foster parents. The provisions provide foster parents with an independent, expedited procedure to review placement decisions of an agency. FACTS [ 10 ] The parties filed a statement of agreed facts and that was the only evidence put before the application judge or relied upon by this court. [ 11 ] The natural parents have eight children, the two youngest of which (the foster children) are the subjects of this dispute.

The eldest foster child was born […], 2007, and was only two months old when placed with the foster parents. The other child was born

[…], 2009, and was apprehended at birth and placed with the same foster parents. The foster children were apprehended from the natural parents by the agency because of their alcohol problems. The agency obtained several orders of temporary guardianship in relation to both foster children. [ 12 ] In 2010, the agency planned to return the foster children to the natural parents and, to that end, arranged for the foster children to have visits with their parents on December 18 and 19, 2010.

In furtherance of the agency’s plan to reunite the family, the agency filed a petition and notice of further hearing on January 12, 2011, which petition first appeared on the Provincial Court docket on January 24, 2011. [ 13 ] Only counsel for the agency appeared in court on January 24, 2011, and in respect of this matter stated specifically that the agency was withdrawing the petition with respect to all the children except the two children who are the subject of the dispute .

Those two children have special needs and the agency wanted them to remain in care and had not yet served the parents with notice. [ 14 ] That same day, the agency removed the children from the foster home, at first indicating to the foster parents that it was simply to have another visit with their parents. However, the next day, January 25, 2011, the agency sent a letter to the foster parents notifying them that the children were being removed from their care and reunited with their natural parents.

Apparently, the foster parents did not agree with the agency’s plan for reunification and had not cooperated with the family reunification visits in December and January. In fact, on January 24th, the police were called to assist the social workers in having the foster parents comply with the visitation plan. [ 15 ] The foster parents immediately sent an appeal to Mr. Felix Walker, CEO of the agency (the CEO). The CEO responded, confirming the decision of the agency, and stating that, as the children had been returned to their natural parents, the appeal process was no longer available to the foster parents.

The foster parents then appealed to Mr. Ron Monias, acting interim director of the authority (the director of the authority). After a delay of more than three months, on May 20, 2011, the director of the authority responded, again confirming that the agency no longer had jurisdiction to proceed with reconsideration pursuant to the Act and the regulation. [ 16 ] The foster parents then initiated a request for independent review under s. 51(5) of the Act .

The Minister notified the authority that it intended to appoint an independent adjudicator to hear the appeal. [ 17 ] The authority filed an application in the Queen’s Bench pursuant to Queen’s Bench Rule 14.05(2)(c)(iv) for a determination of rights under s. 51 of the Act and for a declaration that the foster parents are not entitled to an independent appeal.

The authority submitted that the complaints process set up for foster parents in the Act was designed to apply only where foster children were going to be removed from the foster home and put into another placement, not when they were returned to their natural parents. [ 18 ] While the foster parents’ appeal process resulted in the application by the agency to the Court of Queen’s Bench, various petitions for child guardianship were proceeding in the Provincial Court. [ 19 ] The agency ordered a further parental capacity assessment, and the petition of the agency was adjourned several times to allow for that assessment to be completed.

At the time the agency made the decision not to return the children to the foster parents, the six-month temporary order of guardianship that the agency had obtained on July 19, 2010, had expired. However, as noted, on January 12, 2011, prior to the expiry of this order, the agency filed a petition and notice of further hearing seeking a further order of guardianship. [ 20 ] The matter next appeared in Provincial Court on February 22, 2011, where counsel for the agency adjourned the matter again, this time because of the objection filed by the foster parents.

In the end, on April 18, 2011, the agency asked for a three-month order of supervision. The court was told that the children were safe, that the family reunification was going well and that the parents were cooperating with the agency. The updated parent child assessment, dated April 10, 2011, was quite positive and recommended that the family be unified. [ 21 ] Given that evidence and the testimony of the social worker, the Provincial Court judge determined that it was in the best interests of the foster children to be returned to their natural parents subject to a three-month order of supervision.

When making that order, the court gave reasons: … I’m satisfied that [R.] and [A.] are children still in need of protection. That the three month order of supervision is appropriate and in their best interests. …. . . . . . .… I’m cognizant that the foster parents had concerns that they advanced through government to make sure that it was safe for these children to be returned to these parents. I’m satisfied that it is safe to return these children to the parents.

I note that these are very young children still; three and half and two and half years old I believe. They have been in care pretty much all of their lives until recently until [their] return to the parents. I can understand why the foster parents may have had concerns about that and may have been very attached to these children, however when you look at the declaration of principles in the [ Act ], it’s not only [in the] best interests of the children, but also in determining best interests the family unit is a basic unit of society and obviously its wellbeing should be supported and preserved.

And in this case these parents have done everything within their powers over the last year and beyond that time to put themselves in a position where they can parent their children again. They have done everything that the court has asked of them and the agency has asked of them. They have been regular attenders at court when required and they have gone through addiction treatment programming and counseling. They have been extremely cooperative with the agency. They have been able to maintain lengthy periods of sobriety. They have had the other six siblings back in their care and now [A.] and [R.] since January.

So, I’m satisfied with the efforts that the agency is making to supervise this home that this is an appropriate order to return the children to their care. That it is safe and that children do have the right to a continuous family environment in which they can flourish. So, in this case if I make the order of supervision returning the children they’ll be with their six other siblings; they’ll be with their parents and to my view there’s no reason why they shouldn’t be. So, I will grant the order. There’ll be a three month order of supervision.

RELEVANT LEGISLATION AND REGULATIONS [ 22 ] Sections 40(1) , 40(2) and 48 of the Act provide as follows: Further hearings 40(1) Notwithstanding an order under clause 38(1)(a), (b), (c), (

d) or (e), any judge may, at any time the order is in force and upon application by the agency, parent or guardian of the child or person with whom the child was placed under clause 38(1)(b), hold further hearings to determine whether the child would be in need of protection if returned to the parents or guardian. Former order deemed to be continued 40(2) Where the date fixed for the hearing of an application under subsection (1) falls on or after the expiry date of the former order, the former order shall be deemed to continue until the application is either withdrawn or is disposed of.

Authority of the guardian 48 Where the director or an agency is the guardian of a child under this Act unless the guardianship is limited by the court, the director or agency shall (

a) have the care and control of the child; (

b) be responsible for the maintenance and education of the child; (

c) act for and on behalf of the child; and (

d) appear in any court and prosecute or defend any action or proceeding in which the child’s status is or may be affected. [ 23 ]

Section 51 of the Act provides as follows: Removal of child 51(1) An agency may at any time remove a child in its care from the person with whom the child was placed, if the agency considers

that it is in the child’s best interests to do so. Child in foster home 51(2) If foster parents object to a decision to remove a child from a foster home, the child is to remain in the home until a final decision is made in accordance with this section, except in the following circumstances: (

a) the child is or might be in need of protection; (

b) the child has lived with the foster parents for less than a year and is being removed because of a planned adoption placement; (

c) the child is no longer in the care of an agency because a voluntary placement agreement or court order has been terminated; (

d) the child is being removed because of a planned placement, and pre-placement visits have taken place. Foster parents may request review 51(3) When an agency decides to remove a child from a foster home under subsection (1) and the foster parents object, the executive director of the agency shall review the matter. Reconsideration by the authority 51(4) If the foster parents are not satisfied with the executive director’s decision, they may ask the appropriate authority to reconsider the matter. The authority must do so promptly and must (

a) confirm the agency’s decision; or (

b) require the agency to return the child to the foster home or, if the child has not yet been removed, allow the child to remain in the home. Right to an independent appeal 51(5) If the foster parents are not satisfied with the authority’s decision, they are entitled to an independent appeal of the decision in accordance with the regulations. Hearing 51(6) The independent appeal must be heard by a person or persons appointed by the minister from a roster of persons established by the minister after consulting with authorities and other affected persons.

Regulations 51(7) After engaging in consultation with authorities and other interested persons, the minister may make regulations respecting the procedure for determining appeals and respecting any other matter that the minister considers necessary or advisable for the purpose of this section. Authority may recommend regulations 51(8) An authority may make recommendations to the minister about regulations and amendments to regulations under subsection (7).

[ 24 ] Regulations made under s. 51(7) were registered in 2003, the regulation. Most of the provisions are relevant to some degree and are attached to this decision as an Appendix. A few of the key sections are: Parties to appeal 8 The parties to the appeal are the foster parents and the agency that made the decision to remove the child from the foster home. Adjudicator’s decision 19(1) The adjudicator may make any decision that the authority is authorized to make under subsection 51(4) of the Act . Time limit for giving adjudicator’s decision 19(2) The adjudicator must, within 15 days after the hearing ends, give his or her written decision, with reasons, to (

a) the parties; (

b) the senior executive officer of the authority that reconsidered the matter; and (

c) the director. THE APPLICATION JUDGE [ 25 ] The agency and the authority argued before the application judge that either the children had been returned to the care of their parents by January 24, 2011, or that, since the guardianship order was only temporary, the children were never in the care of the agency. Therefore, the foster parent appeal provisions were not applicable. [ 26 ] The application judge disagreed.

He found that the temporary order of guardianship obtained by the agency on July 19, 2010, was still in force on January 24, 2011, the day that the foster children were removed from their foster home. Since the agency had filed a petition and notice of further hearing on January 12, 2011, by virtue of the operation of s. 40(2) of the Act , the guardianship order was deemed to continue until that petition was either withdrawn or disposed of.

Therefore, the agency was still the legal guardian of the children and, as such, had care and control of them under s. 48 of the Act when they were removed from the foster home. As a consequence, the foster parents were entitled to initiate the appeal process. [ 27 ] The application judge considered the statutory

interpretation problem to raise the application of the mandatory/directory doctrine. He relied primarily on this court’s decision in B.W. v. Child and Family Services of Winnipeg , 2009 MBCA 95 , 245 Man.R. (2d) 186, quoting extensively from Hamilton J.A.’s analysis of the mandatory/directory doctrine.

His analysis of the object and of the subject matter of the legislation led him to determine that the appeal provisions were mandatory. [ 28 ] In addition, while he agreed that the option to require the agency to return the children to the foster parents was not available to the adjudicator as of the date that the guardianship order was terminated, he disagreed that there was no point in proceeding with the independent appeal in these circumstances. [ 29 ] He indicated that there were other matters that might occur at adjudication other than the return of the children (at paras. 106-8): The reason for decision the adjudicator is required to deliver under subsection 19(2) of the Regulation may obviously include findings of fact regarding the care provided by the foster parents which may have pertinence to their ability and suitability to act as foster parents in future, further impacting the safety and best interests of other children (and their families) in Manitoba.

The adjudicator’s reasons may also provide guidance and insight to the authority regarding its legislative responsibility to reconsider agency decisions, and with respect to the general matter of assessing the best interests of children in relation to planning and placement, which could inform its supervision in future of other child protection agencies for which it has supervisory responsibility.

There are then in my view potential consequences and benefits to the unfolding of the foster parents appeals process which extend far beyond the children immediately subject of the agency decision to remove in a particular case. ARGUMENT OF THE PARTIES Agency and Authority [ 30 ] The authority and the agency advanced similar positions. They argue that ss. 48 and 51(1) of the Act are ambiguous and should be interpreted in a way that is harmonious with the rest of the Act .

The foster parent appeal process was designed to deal with conflicts between foster parents and an agency other than situations where the children are returned to their natural parents. There are other mechanisms in the Act to deal with a situation where the foster parents object to the children’s return to their natural parents, it is submitted. For example, the foster parents could have applied for guardianship of the children. [ 31 ] They argue further that it would not make sense to allow an independent appeal by a foster parent in a situation where the children had been returned to their natural parents.

Contested applications with respect to apprehended children are resolved by a hearing before a judge who determines whether the child is in need of protection. If not, the child must be returned to his/her parents. How could an independent adjudicator return an apprehended child to foster parents if the court had held that the child was not “in need of protection,” it is submitted. [ 32 ] Alternatively, it is contended that s. 48 must be read as setting out a condition precedent for its application, that being that the agency must be an unlimited guardian of a child.

It is submitted that a temporary order of guardianship is not an unlimited form of guardianship. Consequently, these children were not in the care and control of the agency when the decision to remove them was made by the agency on January 25, 2011. [ 33 ] Furthermore, both the authority and the agency argued that the matter was moot. Both the authority and adjudicator were limited under subs. 51(4) and (5) of the Act and s. 19(1) of the regulation to either confirm the agency decision or require the return of the foster children to the foster parents.

Given the court order and the passage of time and the fact that all parties agreed that there was no live controversy, an independent adjudicator could not order that the children be returned. Manitoba [ 34 ] Manitoba takes the position that the agency was the guardian of the children at the time the children were removed from the foster parents. The temporary order of guardianship that the agency had obtained with respect to the children on July 19, 2010, was to expire on January 19, 2011. The agency filed a petition and notice of further hearing on January 12, 2011, seeking a further order from the court.

In accordance with s. 40(2) of the Act , the effect of that is the deemed continuation of the July 2010 temporary order of guardianship. As such, on January 25 and 26, 2011, when the agency decided to remove the children from their foster home, the agency continued to be the legal guardian of the children. [ 35 ] As argued by Manitoba, to interpret s. 48 as not applying to temporary orders of guardianship would result in the absurd scenario of not knowing who is responsible for the care, control and maintenance of the hundreds of children in the province who are subject to temporary guardianship orders.

Such an absurd

interpretation ought to be avoided, especially when the clear and unequivocal language of s. 48 is capable of bearing only one meaning, with no ambiguity. Instead, Manitoba argues that s. 48 applies to both temporary and permanent orders of guardianship, and applies to situations where a temporary ward is removed from a foster parent, regardless of the subsequent placement. [ 36 ] With respect to the argument that the application judge’s

interpretation would be inconsistent and a collateral attack on a decision by a court with respect to apprehension, Manitoba submits that a parent’s responsibility to ensure the well-being of their children is not inconsistent with the exercise of foster parents and their rights under the Act . They are not mutually exclusive concepts. Rather, both are aimed at ensuring that the best interests of children are adhered to in the context of deciding where a child is to be placed.

Manitoba submits that the issue before an independent adjudicator pertains to the decision of an agency as to whether a child in care remains in a foster home. As guardianship is not addressed by an independent adjudicator, the natural parents have no interest in the foster parent appeal proceedings. [ 37 ] Section 51(2) (

c) of the Act does contemplate the fact that a foster parent appeal may occur in circumstances where a court order of guardianship has been terminated. That is because an independent appeal before an adjudicator is a process materially distinct from the court proceeding that culminated in the April 18, 2011 order of supervision. Specifically, the court proceeding petition dealt with the issues of whether the children continued to be in need of protection from their natural parents.

It was not determinative of whether or not it was in the best interests of the children to be removed from the foster parents’ home three months earlier.

Manitoba submits that the foster parent appeal process, culminating in an independent adjudication, is a process designed, in part, to provide a check on whether an agency gave primary consideration to the safety and security of a child in deciding that it was in that child’s best interests to be removed from a foster home. [ 38 ] With respect to the argument on mootness, Manitoba contends that, while the issue of the return of the children may be moot, the resolution of this dispute by an adjudicator may include findings of fact that may impact on the ability of these foster parents to other foster children in the future, provide guidance to any agencies considering licensure of these foster parents to care for children in the future, and provide guidance to the agency regarding the assessment and decision-making process employed by the agency in comparable circumstances.

THE STANDARD OF REVIEW [39] These are appeals from an application pursuant to Queen’s Bench Rule 14.05(2)(c)(iv), an application to determine theparties’ rights under s. 51(5) of the Act and s. 7(1) of the regulation. Specifically, the question to be answered by the application judgewas whether the legislation in question entitled the foster parents to an independent review. [40] Both parties agree that the standard of review is correctness. I agree. The application judge was attempting to interpreta piece of legislation and that is a question of law. See Western Canada Wilderness Committee v.

Manitoba, 2013 MBCA 11 at paras.44-45, 288 Man.R. (2d) 216, which was also a case initiated under Queen’s Bench Rule 14.05(2)(c)(iv). ANAYLSIS AND DECISION Mootness [41] When determining whether this matter is moot or whether this court should exercise its discretion to hear the matter,nonetheless it is well to remember that it was the appellant that brought the matter to the attention of the court by applying underQueen’s Bench Rule 14.05(2)(c)(iv) of The Court of Queen’s Bench Act, C.C.S.M., c. C280, for an

interpretation of the relevantlegislation and a determination of rights under that legislation. Ancillary to that relief, a declaration was sought that the foster parentswere not entitled to an independent appeal. [42] As both parties point out, Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342, is theseminal case with respect to the issue of mootness in Canada. In that case, the Supreme Court of Canada laid out the general principlesthat a court may decline to decide a case which raises a merely hypothetical or abstract question.

The general principle applies when thedecision of the court will not have the effect of resolving some live controversy which affects, or may affect, the rights of the parties inthe case before the court. This general policy or practice is enforced in moot cases unless the court exercises its discretion to depart fromits policy or practice. [43] The approach involves a two-step analysis. First, it is necessary to determine whether the required tangible andconcrete dispute has disappeared and the issues have become academic.

Second, if the response to the first question is affirmative, it isnecessary to decide if the court should exercise its discretion to hear the case nonetheless. [44] As Sopinka J. points out in Borowski, although the analysis is not a strict, mechanical one, generally three rationales forthe exercise of a court’s discretion to hear a moot case should be considered: an adversarial context; the concern for judicial economy;and the need for the court to demonstrate a measure of awareness of its proper law-making function. See also Woods v.

Canada(Attorney General) et al., 2005 MBCA 24 at para. 18, 192 Man.R. (2d) 117. [45] Manitoba’s contention that the matter is not moot seems to be based on the correctness of the agency’s decision toremove the children rather than whether the children can be returned. Even though the result stemming from the removal would notchange, Manitoba argues that the removal itself should still be examined. [46] This argument does not seem to align with the law on mootness. Parties are often faced with what seems like an unjustdecision and, despite mootness, may want that unjust decision reconsidered.

In the Woods case, for example, there had been a disputeregarding questions in an examination for discovery. The defendants obtained an order that certain questions must be answered. Theplaintiffs appealed, arguing bias on the part of the court. At the appeal on bias, the plaintiffs admitted that, even if they were successfulas to their argument on bias, they would not ask for a new appeal on the merits. In other words, the objection was not against the order,but the way the decision was made.

In that case, the court applied the doctrine of mootness and declined to exercise the court’sdiscretion. [47] As was stated by the court in Alberta (Child, Youth and Family Enhancement, Director) v. T.S., 2009 ABQB 246 (QL)(at para. 6): The Appellant contends that it is not the result of the order which she is appealing, but rather the order itself and, therefore, the appeal isnot moot. In my view, if that were the case, no decision would ever be moot. [48] I agree with the agency and the authority that in this particular case the matter is moot.

A court has determined that thechildren are no longer in need of protection and, consequently, they have been returned to the care of their natural parents. So, there is noongoing dispute as to the placement of the children. In addition, there was no evidence of any ongoing dispute between the foster parentsand the agency arising from these circumstances. [49] I agree with Manitoba that the adjudicator, in making his/her decision, would not be restricted from making somecomments relating to the process or to the foster parents.

However, not only is that a speculative possibility, but the fundamentalquestion with respect to mootness is whether there is a live controversy ongoing in this case. The children receive no benefit from theappeal process being continued after being returned to their natural parents. There is a separate process under the Act dealing with thelicensing of foster homes, if it were necessary. That does not seem to be an issue in this case, nor is there evidence of an ongoing disputebetween the foster parents and the agency.

[50] However, there are several benefits to be gained by a court exercising its discretion to hear the matter and make adetermination of rights based on an

interpretation of the section. [51] This is a matter of public importance dealing with children. The consequences of such a determination have thepotential to impact not only the foster parents, but also the agency, the authority and each of the other child and family service agenciesoverseen by the authority. [52] In terms of judicial economy, one consideration that favours allowing the matter to proceed is whether the decisionmight be of use to future litigants. See Director of Child and Family Services (Man.) v. A.C. et al., 2007 MBCA 9 at para. 33, 212Man.R. (2d) 163, and Kostiuk v.

Director of Social Services (Winnipeg Central) (1996), (MB CA), 113 Man.R. (2d)138 at paras. 18-19. [53] There have been no cases referred to this court that involve the

interpretation of this piece of legislation although it hasbeen in force since 2003. Given that the foster parent appeal process must be complied with by more than 20 different child and familyservice agencies and four different child and family services authorities in the province and is available to hundreds of foster parents, theopportunity to address the issues raised in the application by the authority weighs in favour of the exercise of judicial discretion todetermine the matter.

Interpreting the Act [54] I agree with the application judge and the parties that the applicable statutory provisions specific to the foster parentappeal process need to be considered within the modern principal of contextual

interpretation which requires a broad holisticconsideration of the Act and its intent, objects and subject matter. See R. v. McIntosh, (SCC), [1995] 1 S.C.R. 686, andRuth Sullivan, Sullivan on the Construction of Statues, 5th ed., (Markham: LexisNexis Canada Inc., 2008) at 11. [55] There is little dispute on the general purposes of the Act. The Act itself sets out the principles in a

preamble. TheSupreme Court of Canada commented on those purposes, stating that the Act “is focused on protecting the best interests of the child inaccordance with defined criteria” (A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 at para. 31, [2009] 2 S.C.R.181). [56] This court, in considering other sections of the Act, has made similar comments. See Dakota Ojibway Child and FamilyServices Inc. v. J.O.D.S., 2001 MBCA 47 at para. 10, 156 Man.R. (2d) 97, and Children’s Advocate (Man.) v.

Child and Family Servicesof Western Manitoba et al., 2005 MBCA 11 at para. 5, 192 Man.R. (2d) 23. [57] So, clearly, the purpose of the Act as a whole is about the best interests of the child. The question is how these appealprovisions fit into those interests. [58] Before 1985, foster parents did not have the power to appeal decisions to remove children from their care.

The ChildWelfare Act, S.M. 1974, c. 30, gave the Director of Child Welfare (the Director) complete discretion and no appeal provision wasprovided. [59] This changed in 1985 with the introduction of The Child and Family Services Act, which introduced provisions thatprovided a two-step review process for foster parents who objected to the removal of a child from their care (see ss. 85-86). The agencywas required to review the matter and, if not satisfied, the foster parents could request the Director to review the matter, but theDirector’s decision was final.

There was no provision for the child remaining with the foster family during the course of the appeal andno timelines set out. [60] The current provisions were introduced in 2002 as part of the necessary modifications to the Act because of theintroduction of The Child and Family Services Authorities Act, C.C.S.M., c. C90 (the Authorities Act). The Authorities Act was asignificant legislative step that gave First Nations and Metis authorities the responsibility to provide child and family services to FirstNations and Metis families.

This process, commonly called “devolution,” changed the structure of the provision of child and familyservices in Manitoba. [61] The introduction of the Authorities Act in 2002 also substantially changed the hierarchy of child and family services. Prior to that, the Director of Child and Family Services, while under the oversight of the Minister, had all the powers and duties toprovide oversight to the agencies. The Authorities Act created four authorities – Northern, Southern, Metis, and General. Each authorityis responsible for a list of agencies.

The authorities were given largely the same powers and duties for the agencies under them as theDirector used to have, and the Director’s powers and duties largely ceased with respect to those agencies. See s. 18 of the AuthoritiesAct. [62] This places the authorities on the same level as the Director, subject to regulations. It is not clear (and, in fact, quiteconfusing) which powers and duties the authorities have and if that specific power and duty is shared with the Director.

Given thesestructural changes, it is understandable that the appeal process was also modified. [63] The appeal provisions have been the subject of some discussion in the legislative assembly, although there has neverbeen any indication of whether they were meant to apply between foster parents and natural parents. In fact, there have been four privatemember bills to amend s. 51[1]. Each bill has been identical.

The bills proposed to add a new requirement; prior to an agency removinga child from a foster home, when there were no child protection concerns, the agency would have to prepare a written plan and givewritten notice to the foster family. None of these bills were passed or even sent to committee. [64] During the debates in the legislative assembly, the government defended the current appeal provisions. The AttorneyGeneral and Minister of Justice, the Hon. Andrew Swan, outlined what he saw as the dual purpose of the appeal provisions: the best

interests of the child and due process for foster parents. With respect to the natural parents, he stated that, “It’s important to remember, though, that parents of apprehended children are also given the opportunity to have their wishes heard at every step of the way in court, anything regarding guardianship or placement” (Manitoba, Legislative Assembly, Debates and Proceedings (Hansard) , 39th Leg., 4th Sess., Vol. LXII, No. 60A (10 June 2010) at 2880 (Hon. Andrew Swan). [ 65 ] A second exchange in Hansard discussing the appeal provisions occurred in 2009.

There was an exchange between the Minister and a member of the opposition concerning the enforcement of the decision of an adjudicator. The Minister indicated that, in a recent case, he was aware of “the adjudicator had asked that a mediator be appointed to work with the parties to ensure implementation of the recommendations” (Manitoba, Legislative Assembly, Debates and Proceedings (Hansard) , 39th Leg., 3rd Sess., Vol. LXI, No. 43B (19 May 2009) at 2167 (Hon. Gord Mackintosh).

This indicates that the Minister and the adjudicator he appointed considered the power of an adjudicator to be wider than simply a choice between two options of returning the child or not, but also included making recommendations and providing a mechanism to implement the decision. [ 66 ] It is also useful to examine the rest of the Act to determine whether there are other possible avenues of review for foster parents, as was argued by the appellant. There is one other appeal process specifically for foster parents in the Act and that is the licensing of the foster home (see s. 8 of the Act ).

The Child and Family Services Authorities Regulation , Man. Reg. 183/2003, at s. 31(1) specifies that it is no longer the Director, but the authority that hears an appeal from a cancellation, suspension or non-renewal of a foster home license. There is no provision for any further appeal from the decision of an authority. Also, this appeal process would have no relevance to a complaint about the removal of a child from a foster home. [ 67 ] A foster parent’s ability to engage in court proceedings involving the protection of a child in their care such as child protection or guardianship hearings, is limited.

Foster parents are not given notice of a hearing with respect to children deemed to be in need of protection, although they may apply to intervene as may any person ( s. 31(1) of the Act ). [ 68 ] Even if a foster parent is able to intervene and give testimony at an initial hearing or further hearings, the purpose of those hearings is limited to determining whether a child needs protection from their parents.

A court would have the power to order that an agency be the guardian of such children, but the Act does not provide that the court could order the agency to place the children with specific foster parents. [ 69 ] Another way a foster parent may access the courts with respect to the placement of a child is by applying for guardianship under s. 77(1) of the Act . While court decisions in Manitoba have permitted foster parents to use this

section to apply for and receive guardianship [2] , unlike foster parenting, a guardian is fully responsible for a child. It also requires the foster parents to retain legal counsel and incur significant costs. As Little J. pointed out in M.A.F. et al. v. Child and Family Services of Winnipeg Southeast et al. , 2000 MBQB 87 , 147 Man.R. (2d) 192 , even for the most committed foster parents or those who have concerns, it is not the most attractive of options (at para. 23): …. Presently such applications are rare, even when agencies seek out and present foster parents as part of a permanency plan.

There is no convincing reason offered for why this will change. Many foster parents will not want a more permanent relationship with children in their care, and those seeking permanency with children are likely to follow a far less torturous route, emotionally and financially, to achieve such a relationship. The emotional and financial risks to embarking on an uncertain and contested litigious course will surely dissuade most. [ 70 ] In contrast to a guardianship application, the first two stages of the foster parent appeal process proceed by way of document review, and all stages have quite short timelines.

Legal representation is not required. It is designed as an expedited process. [ 71 ] It is also possible, if the foster parents had child protection concerns regarding the return of these children to their natural parents, that, like anyone else, they could have reported the concerns to the appropriate authorities. The agency must investigate those concerns (s. 18.4(1) of the Act ). If the foster parent is not satisfied that an agency has listened to the concerns, the foster parents may go to the children’s advocate (s. 8.2(1) of the Act ).

However, the children’s advocate powers are limited to investigating, inspecting and making recommendations.

The children’s advocate cannot direct an agency or authority in its actions. [ 72 ] It is interesting to note that in its last report, The Office of the Children’s Advocate, 2011-2012 Children’s Advocate Annual Report , (Winnipeg: Children’s Advocate, 2012), one of the children’s advocate’s key recommendations involved the foster parents appeal process, stating (at p. 22): The OCA continues to receive requests for advocacy services related to the removal of children from foster placements as it pertains to three areas: • Children and youth being moved from the foster home prior to the completion of the foster parent appeal process.

This contradicts CFS standards and regulations. .…

• Reported significant delays in the foster parent appeal process. While the Child Protection Branch reports having made efforts to clarify the expectations regarding foster parent appeals for agency staff as well as foster parents, we continue to receive reports about the above concerns on a regular basis. [ 73 ] Finally, the authority argued that the foster parents had an adequate remedy by way of complaining to the Minister. While a member of the public may always contact an elected official, the question for our purposes is what the Minister may do under the Act about such complaints.

Section 26 of the Authorities Act , relied upon by the authority to argue that the Minister could have intervened, is general. Minister may provide services 26 Notwithstanding the provisions of this or any other Act or regulation, if the minister considers it is in the best interests of children and families to do so, the minister may ….

b) do anything else the minister considers necessary to promote and ensure the provision of child and family services in the province. [ 74 ] In conclusion, a review of these different provisions reveals that, while there are several statutory provisions that foster parents may utilize, each has its own particular focus.

No other provision allows for a foster child to be returned to the home of the foster parents in a foster relationship. [ 75 ] A review of the Act is also useful in considering the authorities’ argument that the use of the appeal provisions in this case constitutes a collateral attack against protection proceedings or are a duplicative mechanism. In interpreting the provisions of the Act , I am concerned that there should not be two separate fora determining the same issues.

However, in a protection hearing, the test for a court is not the best interests of the child, but rather, whether the child is in need of protection. It may be that the best interests of a child lies in a variety of other placements, but our society does not allow the removal of a child from its family unless the child’s safety is at risk. Section 2(1) of the Act recognizes that protection proceedings are the exception to the best interests of the child being the paramount consideration. [ 76 ] On the other hand, the test in a foster parent appeal is the best interests of the child.

On their facts, the proceedings do not appear duplicative; one determines a child’s need to be protected from parents, and the other determines a child’s best interests in relation to foster parents. There is nothing preventing the appeal provision from operating at the same time as protection or guardianship proceedings. [ 77 ] Moreover, as Manitoba has argued, s. 51(2) of the Act sets out several situations where the child, once removed from the foster home, will not be ordered to be returned to that home. However, the legislation says nothing about stopping the process.

Surely, if it identifies the situations in which the child will not be kept in the foster home pending a decision and includes such situations as the termination of the order or an alternative placement, it would have stated that the appeal process terminated, if that was the intention of the legislature. [ 78 ] Outside of Manitoba, the rights of foster parents are legislated with varying degrees of detail.

Manitoba is one of the provinces that extend the most rights to foster parents, although Ontario and Alberta also provide schemes that allow for foster parents to be considered in decisions regarding a child’s care and that specify the processes for review and appeal on which a foster parent must rely. [ 79 ] So, for example, in Ontario, the Child and Family Services Act , R.S.O. 1990, c. C11, contains a scheme for foster parent rights that is similar to that of Manitoba, although it only provides for one level of appeal.

A child must be in a foster parent’s care for at least two continuous years before the rights are triggered. Where a child is going to be removed, the foster parents are entitled to receive written notice ten days before the removal and they can, if they wish, apply for a review of the decision and, as in Manitoba, the child should not be removed until a determination is made (subs. 61(5)-(9)). Upon receipt of an application by a foster parent for a review of a proposed removal, the board “shall hold a hearing” (s. 61(8)).

The sections do not specify whether these rights apply purely in situations in which a child is being moved from one foster home to another, or if they are meant to encompass situations in which children are being returned to their natural parents. Although s. 61(8.4) makes clear that natural parents do not have an automatic right to be a party to an appeal under these sections, it is also clear that the board may add parties to an appeal proceeding. None of the jurisdictions deal expressly with the issues in dispute in this case. [ 80 ] With respect to case law, there is no appellate jurisprudence regarding the

interpretation of s. 51. It has been mentioned in a few trial decisions. In M.A.F. , Little J. rejected the argument that foster parents could not apply for guardianship because s. 51 was the correct and only avenue for redress by foster parents. Little J. held that s. 51 spoke to foster parents’ rights to seek review of an administrative decision to remove children from their care, but did not prevent the foster parents from initiating guardianship proceedings

under s. 77. [ 81 ] J.G. et al. v. Awasis Agency of Northern Manitoba et al. , 2012 MBQB 102 , 278 Man.R. (2d) 91 , is an example of a case where the decision of an independent adjudicator was used by a court in its decision making, albeit not in a contest that involved natural parents. However, it does reveal that s. 51 can act as a check or review of agency decision making. In that case, the agency wished to remove a child under a permanent order of guardianship from the foster home and into the home of a relative who was more culturally appropriate.

The foster parents filed an appeal pursuant to s. 51 and the independent adjudicator held that the child should remain in the foster parents’ care. [ 82 ] After the agency suggested to the relative that they should apply for guardianship or adoption of the child and then prepared a home study recommending adoption, the foster parents made an application for guardianship. Doyle J. considered the evidence before him, including the independent adjudicator’s findings.

He noted that the independent adjudicator “considered the best interests” (at para. 40) of the child when the foster parents appealed the decision to remove the child and ultimately found that it was in the best interests of the child that the foster parents be appointed guardians. DID THE FOSTER PARENTS HAVE A RIGHT TO ASK FOR AN APPEAL? [ 83 ] The right to an appeal under s. 51 of the Act arises when an agency removes or indicates that it wishes to remove a child in its care from the foster parent.

Section 48 of the Act indicates that, when an agency has an order of guardianship, it has care and control of the child, unless the order specifies otherwise. [ 84 ] I agree with Manitoba that an order of guardianship includes a temporary order of guardianship. To be the guardian of a child includes responsibility, among other things, over the child’s person and medical decision making. Someone must have the guardianship of a child at all times during their minority. It cannot be the child’s parents, since to obtain a temporary order of guardianship over a child, the child must have been in need of protection.

I agree that an order of guardianship in s. 48 must include a temporary order of guardianship. To decide otherwise would leave hundreds of children in this province in limbo. [ 85 ] Therefore, at the time the children were removed from the foster home, the agency had care and control of the children.

Unless the provisions do not apply when children are returned to their natural parents, the foster parents were entitled to initiate an appeal pursuant to the provisions in the Act . [ 86 ] As mentioned earlier, the foster parent appeal provisions have been drafted so that some thought was given to situations in which the child’s best interests required that she/he not remain in the home while the review was being conducted. A number of situations are listed.

For example, if the child is in need of protection, or if the child has been in the home of the foster parents for less than a year, or if the guardianship order has been terminated, the child need not remain in the home until the final decision is given (see s. 51(2) ). Return to the natural parents would be one of the possible outcomes of the order of guardianship being terminated. Yet, the provision does not require the appeal process be stopped in those circumstances.

It merely indicates that the child need not be kept in the foster parents’ home until the final decision is made. [ 87 ] The parties have proposed two very different purposes for the appeal provisions. The authority and agency allege that the sole purpose of the appeal provisions is to determine the placement which, at the time of the review, is in the best interests of the child. They argue that the decision maker could not take into account any other considerations and that the process is solely about the children.

Manitoba asserts that the purpose, on the contrary, is to review the decision of the agency at the point in time the child was removed and that foster parents have an absolute right to have that decision reviewed. [ 88 ] These positions represent two extremes. I would suggest there is a third option. That third option was articulated in Hon. Swan’s comments, defending the current wording of s. 51, in the Legislative Assembly. The

section has a dual purpose. The best interests of the child are an overriding concern of the Act , but a secondary purpose is due process for foster parents. [ 89 ] This dual purpose is supported by the wording of the appeal provisions. Section 51(1) states that an agency is authorized to remove a child when it is in the child’s best interests. A child’s best interests are the starting point. Other provisions, however, provide due process for foster parents. This is the only place in the Act where there is an appeal to an independent adjudicator.

The purpose that best reflects the legislation is one that provides for the best interests of children while also providing due process for foster parents. REMEDY [ 90 ] The appeal is allowed in part. The declaration of the application judge to the effect that the appeal process set out in s. 51 of the Act is applicable even if the children are removed from the foster home to be returned to their natural parents, should stand. The appeal process is also applicable even if the children are in the care and control of the agency under a temporary order of guardianship.

The agency and authority did have jurisdiction to conduct a review and should have done so. Moreover, they should have done so within the timelines specified in the Act . CONCLUSION [ 91 ] Beneath the dry task of statutory

interpretation in this case runs some complex and emotional dynamics. These young children spent most of their short lives with the foster parents. For the youngest child, who was apprehended at birth, the foster parents were the only parents she knew well. [ 92 ] Nonetheless, the evidence filed with the family court indicates that the natural parents worked hard to overcome their alcohol addictions and win their children back. The agency and authority, while understanding that the safety of these children was their prime concern, were committed to the importance of family reunification. What was concern for the safety of the children on the part of

the foster parents was seen as non-co-operation and interference in the goal of family reunification by the agency. There was significant delay in responding to the requests of the foster parents for the initiation of the appeal process. The foster parents saw this as avoidance.

The agency saw this as time to take steps to satisfy the concerns of the foster parents and the child protection branch. [ 93 ] As has been stated, while an independent adjudicator might make findings of fact with respect to the process followed, it is acknowledged by all parties that, at this point in time, the best interests of these children rest with their parents and their siblings in a unified family.

The matter is moot and there is no point in ordering that an independent adjudication take place in this particular case. [ 94 ] However, the concern of this court is to interpret the legislation so that it conveys the intent of the Legislature for all cases and all facts. Under previous legislation, foster parents had virtually no right of appeal and complete discretion remained with the Director.

The Legislature has purposefully and specifically extended increased rights of involvement to foster parents when a child is being removed from a foster home, irrespective of the nature of the removal. [ 95 ] Given the differing nature of the processes and purposes of guardianship of children and licensing of foster homes, the appeal provisions do not create a means of collateral attack upon a decision of a court in a child protection hearing.

The purpose of these provisions is not solely about the best interests of the child at the time of removal, nor are they entirely about the rights of the foster parents; the purpose is a dual one and the provisions exist to ensure that a timely and expedited decision be taken that allows for both due process for the foster parents and the best interests of the child. COSTS [ 96 ] At the hearing of this matter in the court below, the court ordered that if there was no agreement respecting costs, briefs may be filed and a hearing date set, otherwise no costs were ordered.

I would make a similar order. [ 97 ] I would allow the appeal in part. J.A. I agree: J.A. I agree: J.A. Appendix Foster Parent Appeals Regulation , Man. Reg. 185/2003 DECISION TO REMOVE CHILD FROM FOSTER HOME Reasons for removing child to be given 2(1) If an agency decides to remove a child in its care from the foster parents with whom the child was placed under

section 51 of the Act , the agency must, within two days after informing the foster parents of its decision to remove the child, give the foster parents written reasons for its decision. Notice to foster parents of right to appeal 2(2) At the same time the agency gives reasons to the foster parents, it must give them written notice of their right to (

a) request the executive director of the agency to review the agency’s decision under subsection 51(3) of the Act ; (

b) request a reconsideration by the agency’s authority under subsection 51(4) of the Act ; and

(

c) have an independent appeal under subsection 51(5) of the Act . It must also give them a copy of this regulation and copies of the forms referred to in subsection 3(1) (review requested) and subsection 7(1) (independent appeal) of this regulation. AGENCY REVIEW OF DECISION TO REMOVE CHILD Foster parents may request review 3(1) The foster parents may object to the agency’s decision to remove a foster child by filing a written request for a review of the decision, in a form approved by the director, with the executive director of the agency.

Time limit for filing request for review 3(2) The request must be filed within 12 days after the foster parents receive the reasons for the agency’s decision under subsection 2(1). Agency records to executive director 3(3) The agency must give the executive director all records in the custody of, or under the control of, the agency that are relevant to the decision to remove the foster child.

Offer of alternative dispute resolution 4(1) Within seven days after receiving the foster parents’ request, and before reviewing the agency’s decision, the executive director must offer the parents, in writing, an alternative process to resolve their dispute with the agency. If alternative dispute resolution process accepted 4(2) If the foster parents agree to an alternative process to resolve the dispute, (

a) the foster parents and the agency may resolve the dispute through that process; or (

b) either party may, after attempting unsuccessfully to resolve the dispute through this process, advise the executive director accordingly. Review by executive director 5(1) The executive director of the agency must review the agency’s decision to remove the foster child if (

a) the foster parents advise that they do not agree to an alternative process to resolve the dispute; or (

b) either the foster parents or the agency advises that an alternative process was unsuccessful in resolving the dispute. Time limit for review by executive director

5(2) Within seven days after receiving advice under subsection (1), the executive director of the agency must give a copy of his or her decision, with reasons, to (

a) the foster parents; and (

b) the authority that under

Part I of the Act mandated the agency that made the decision to remove the child from the foster home. RECONSIDERATION OF DECISION BY AUTHORITY Reconsideration by authority 6(1) If the foster parents are not satisfied with the decision of the executive director of the agency, they may request the senior executive officer of the authority referred to in clause 5(2)(

b) to reconsider the matter. The request must be made in writing within seven after the foster parents receive the executive director’s decision. Records given to authority 6(2) If the foster parents request a reconsideration, the executive director of the agency must give the senior executive officer of the authority copies of (

a) all records referred to in subsection 3(3); and (

b) any other records the executive director relied on in making his or her decision. Decision by authority 6(3) The senior executive officer of the authority must (

a) make a decision in accordance with subsection 51(4) of the Act ; and (

b) give a copy of the decision, with reasons, to the foster parents and the agency. INDEPENDENT APPEAL Filing an appeal 7(1) If the foster parents are not satisfied with the decision of the authority’s senior executive officer, they may file a notice of appeal with the director, in a form approved by the director.

Time limit for filing appeal 7(2) The notice of appeal must be filed within 14 days after the foster parents receive notice of the authority’s decision under clause 6(3)(b). Parties to appeal 8 The parties to the appeal are the foster parents and the agency that made the decision to remove the child from the foster home. Request to appoint adjudicator 9 Within seven days after receiving the notice of appeal, the director must (

a) give a copy of the notice to the agency and the authority; and (

b) request the minister to appoint a member of the roster as an adjudicator in accordance with subsection 11(1), to hold a hearing and decide the appeal. Roster of adjudicators 10(1) After consulting with the authorities and other affected persons, the minister must establish a roster of at least seven adjudicators to hear appeals by foster parents under subsection 51(5) of the Act about the removal of foster children from their care. Who is not eligible to be on the roster 10(2) The following persons are not eligible to be appointed to the roster: (

a) a member of the Legislative Assembly; (

b) a director of Manitoba Keewatinowi Okimakanak Inc.; (

c) a director of the Assembly of Manitoba Chiefs Secretariat Inc.; (

d) a director of the Manitoba Metis Federation Inc.; (

e) the Director of Child and Family Services; (

f) an employee under the control of the minister. Two-year term 10(3) Each adjudicator on the roster is to be appointed for a term of two years, and may be reappointed for two further two-year terms. Reappointment 10(4) An adjudicator who has served for three terms may be reappointed for a further term, but only if at least one year has passed since the end of his or her last term.

Adjudicator continues on the roster 10(5) An adjudicator continues on the roster until he or she is reappointed, a successor is appointed or the appointment is revoked for cause. Appointing an adjudicator 11(1) As soon as reasonably possible after receiving a request to appoint an adjudicator under clause (9)(b), the minister must appoint an adjudicator to hear the matter.

Appointment in rotation 11(2) The minister must maintain a current list of all the adjudicators on the roster and, in responding to a request to appoint an adjudicator, must appoint a person on the list in sequence as his or her name appears on the list. If anyone is unavailable, or by reason of subsection (3) is ineligible to hear the appeal, the minister must appoint the next person on the list in sequence. Persons not eligible to be adjudicators 11(3) An adjudicator is not eligible to hear an appeal if he or she (

a) is related to either of the foster parents or to the foster child who is the subject of the appeal by blood, marriage or common-law relationship; (

b) is a director, officer or employee of, or is or has been legal counsel for (

i) the authority of service for the foster parents or the foster child, or (ii) the authority that reconsidered the matter under subsection 51(4) of the Act ; (

c) is a director, officer or employee of, or is or has been legal counsel for the agency (

i) that placed the child in the foster home, (ii) that is the child’s guardian, or (iii) that decided to remove the child from the foster home; or (

d) is not, in the minister’s opinion, able to be impartial and independent about the outcome of the appeal. Hearing date 12 A hearing must be commenced within 15 days after the minister appoints the adjudicator, unless the adjudicator grants an extension at the request of the foster parents or the agency.

Notice of hearing 13 After an adjudicator is appointed, the director must notify the foster parents and the agency in writing of the date, time and place of the hearing, at least 10 days before the hearing date. Parties may be represented 14 A party may be represented by counsel or by another person at the hearing. Records to be filed by agency 15(1) Within five days after receiving the notice of appeal, the agency must file the following documents with the director: (

a) the foster parents’ request for a review by the executive director of the agency under subsection 3(1); (

b) all records in the custody of, or under the control of, the agency referred to in subsection 3(3); (

c) all records on which the executive officer of the agency relied in reviewing the agency’s decision; (

d) the decision of the executive director of the agency, with reasons, under subsection 5(2); (

e) any other records that might be relevant to the appeal. Records to be filed by authority 15(2) Within five days after receiving the notice of appeal, the authority must file the following documents with the director: (

a) the foster parents’ request for a reconsideration by the authority under subsection 6(1); (

b) all records on which the senior executive officer of the authority relied in reconsidering the agency's decision; (

c) the decision of the senior executive officer of the authority, with reasons; (

d) any other records that might be relevant to the appeal. Parties may examine records 15(3) The director must give the foster parents and the agency a reasonable opportunity to examine and copy any records that have been filed under this section. Hearing process — rules of evidence do not apply 16 The adjudicator is not bound by the rules of evidence that apply to judicial proceedings.

Views and preferences of child 12 years of age or older 17(1) If the foster child who is the subject of the dispute is 12 years of age or older, the child (

a) is entitled to be advised of the hearing and the possible implications for him or her; and (

b) must be given an opportunity to make his or her views and preferences known to the adjudicator. Views and preferences of child less than 12 years of age 17(2) If the foster child who is the subject of the dispute is less than 12 years of age, the adjudicator may consider the views and preferences of the child if the adjudicator (

a) is satisfied that the child is able to understand the nature of the hearing; and (

b) is of the opinion that it would not be harmful to the child. Hearing by teleconference 18(1) A hearing may be held by means of a conference telephone call or by another method of communication that allows the adjudicator and the parties to communicate with each other simultaneously. Closed hearing 18(2)

Section 75 of the Act applies to the hearing of an appeal before the adjudicator. Adjournment 18(3) The adjudicator may adjourn an appeal when he or she considers it appropriate. Adjudicator’s decision 19(1) The adjudicator may make any decision that the authority is authorized to make under subsection 51(4) of the Act . Time limit for giving adjudicator’s decision 19(2) The adjudicator must, within 15 days after the hearing ends, give his or her written decision, with reasons, to (

a) the parties; (

b) the senior executive officer of the authority that reconsidered the matter; and (

c) the director.