Child and Family Services of Western Manitoba v. Date:, 2014 MBCA 60

Citation: Child and Family Services of Western Manitoba v. Date: 20140610 G. (S. W. R.) et al., 2014 MBCA 60 Docket: AH 13-30-08018 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Freda M. Steel Mr. Justice William J. Burnett BETWEEN : CHILD AND FAMILY SERVICES ) J. A. Richert OF WESTERN MANITOBA ) for the Appellant ) (Petitioner) Respondent ) J. D. Cram ) for the Respondent - and - ) Child and Family Services ) of Western Manitoba G. (S. W. R.) ) ) (Respondent) Appellant ) Appeal heard: ) April 7, 2014 - and - ) ) Judgment delivered: M. (T.

R.) ) June 10, 2014 ) (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).

MONNIN J.A. [ 1 ] This is an appeal from an order made in chambers by a judge of this court denying the appellant’s application to extend the time to file an appeal from an order of permanent guardianship granted to the respondent, Child and Family Services of Western Manitoba (CFS) pursuant to the provisions of The Child and Family Services Act , C.C.S.M., c. C80 (the Act ). Jurisdiction [ 2 ] Prior to hearing submissions on the appeal, the panel advised the parties that the court wanted them to address a preliminary issue.

That issue was whether an appeal could lie to a panel of this court from a decision of the chambers judge. [ 3 ] Following submissions by counsel, the panel decided that the appeal could proceed and that our reasons for so deciding would be set out as part of our reasons on the substantive appeal itself. [ 4 ] Although s. 46(1) of the Court of Appeal Rules, Man. Reg. 555/88R is far from a model of clarity, it provides, in our view, authority, where provided by statute, as in the present case, for a panel of this court to hear an appeal from a chambers judge. The

section reads: Appeal from chambers order

46(1) A person affected by an order made in chambers may appeal to the court, except in those matters where, by statute, authority to make the order is given to a judge in chambers and there is no right of appeal . [emphasis added] [ 5 ] The Act provides a shorter than usual deadline for appealing from the order of a judge. If missed, the time may be extended by a Court of Appeal judge sitting in chambers.

Section 44 of the Act provides: Appeal from order of a judge 44(1) An order of a judge under this Part may be appealed to the Court of Appeal within 21 days from the date on which the judge signed the order appealed against.

Extension of time for appeal 44(2) The time for appeal under subsection (1) may be extended by a judge of the Court of Appeal sitting in chambers if good cause is shown for the delay and if the child has not been placed for adoption. [ 6 ] The issue with respect to our jurisdiction to hear an appeal from a chambers judge is whether the words in s. 46(1) of the Court of Appeal Rules “and there is no right of appeal” refer to statutory authority to bring an appeal, or if they are to be read as meaning that there is no appeal to be taken from a decision of a chambers judge.

As an example, such a restriction is found in The Safer Communities and Neighbourhoods Act , C.C. S.M., c. S5.

Section 20 deals with leave to appeal and reads: Appeal only by leave 20(1) An appeal of an order made by the Court of Queen’s Bench may be taken only on a question of law and by leave of a judge of The Court of Appeal. Time for application for leave to appeal 20(2) An application for leave to appeal shall be made within 14 days after the day the order is pronounced or within such further time as a judge may allow.

No appeal of decision re leave 20(3) The decision of a judge on an application for leave to appeal is final and not subject to appeal. [ 7 ] In the context of this case, such an express restriction is not found in the extension of time provisions in the Act . [ 8 ] It should also be noted that the matter before us is different than when dealing with a statute such as The Residential Tenancies Act , C.C.S.M., c.

R119, which provides that an appeal can lie to a panel of this court only after leave has been granted. [ 9 ] Therefore, the panel was of the view that, in this particular case, s. 44 of the Act provides for an appeal as of right and, as well, it provides for an extension of time to be granted if the facts warrant it. Accordingly, we were satisfied that the appellant’s appeal was properly before us and with which we could proceed. Facts [ 10 ] On January 30, 2013, following a trial, CFS was granted a permanent order of guardianship of the appellant’s child, whose date of birth is March 19, 2011.

In his reasons, the trial judge found, and this was not a contentious issue, that the child had been under the care of CFS since a temporary order of guardianship had been pronounced on June 27, 2011. He further found that the child’s mother had not participated in the proceedings before him, but had agreed to the order of permanent guardianship. More importantly, he found that the child was, and continued to be, in need of protection.

Finally, he found that the only appropriate order to be made was a permanent order in favor of CFS. [ 11 ] The appellant failed to appeal within the time provided by s. 44 of the Act , albeit that such failure can be measured in days and not weeks or months. The notice of appeal that he caused to be filed set out three grounds of appeal:

1) that the trial judge misapprehended the evidence; 2) that the trial judge made findings of fact not supported by the evidence; and 3) that the trial judge erred in law. [12] In Director of Child and Family Services v. D.M.P. et al., 2010 MBCA 112, 262 Man.R. (2d) 66, Steel J.A. dealt withan application to extend the time for the filing of an appeal.

Before setting out the criteria which an applicant had to meet to besuccessful on such an application, she elaborated on the need for expediency in child protection matters (at paras. 8-10): 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 thejudgment being appealed (see Rule 11(1)). With respect to child protection proceedings that timeline has been changed by statute to 21days for the filing of the notice of appeal and 10 days thereafter to serve it.

These abbreviated timelines reflect a desire on the part of the Legislature to take into account the unique and nuanced challenges thatadversarial litigation presents in the context of child protection proceedings. Not the least of these challenges is the recognition of achild’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 inrecognition of these challenges.

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 extendthe 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 hasnot been substantively considered before by this court. [13] She then went on to set out the test which an applicant had to meet in order to obtain an extension of time (at paras. 11-13): 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), 2006 MBCA 161 , 212 Man.R. (2d) 114; 389 W.A.C. 114; 2006 MBCA 161, andBohemier et al. v. CIBC Mortgages Inc. (2001), 2001 MBCA 161 , 160 Man.R. (2d) 39; 262 W.A.C. 39; 2001 MBCA 161.

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 timefor commencing the appeal be extended. See Hunter v. Hunter (2000), 2000 MBCA 134 , 150 Man.R. (2d) 291; 230 W.A.C.291; 2000 MBCA 134. I believe that these criteria would also be applicable to a motion under s. 44(2) of the Act in determining whether the court shouldexercise its discretion in favour of granting the extension of time.

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

Such aconsideration is no different than considering whether prejudice would result to the other party, except here, that party is not theopposing party, but the children involved in the case.

[ 14 ] The chambers judge denied the appellant’s application on the basis that, in his view, the appellant had not demonstrated that he had arguable grounds of appeal. He said: The bases for appeal, at least as evidenced by the motion brief of the applicant’s counsel, which he says are taken from the notice of appeal that he attempted to file, are that the trial judge erred in misapprehending the evidence, by failing to make findings of fact that were supported by the evidence given at trial, and by making findings of fact that were not supported by the evidence given at trial.

As regards those two grounds, it is my view that there is no realistic basis for success. I say that because the reasons for decision are very thorough, they do review the evidence of those witnesses who testified, including the evidence of the father whose evidence ultimately was rejected by the trial judge. Even if leave were granted, the standard of review in respect of those grounds would essentially relate to the findings made by the trial judge on the evidence before him and the standard of review would be palpable [and] overriding error.

I do not see any realistic prospect of the applicant establishing that so as to cause reversal or appellate intervention in respect of either of those grounds.

With respect to the third ground advanced, and that is the failure of the trial judge to apply any meaningful analysis or otherwise explain the court’s reasoning as to why a permanent order of guardianship was the appropriate order after making a finding of fact that the child remained in need of protection, I point to the fact that while there is not any express discussion of that by the trial judge in his reasons, the law is clear that a judge does not need to address each of the issues before him and that in looking at the judgment one must look at the submissions made by counsel as well.

And it is clear from the submissions made by counsel that the reasons for the order being a permanent order and not a temporary order is because on the evidence and in accord with the provisions of the Act a permanent order of guardianship was the only option available to the trial judge. The fact is, and Mr.

Cram argued before me this morning, with a temporary order having first been granted on June 27, 2011 and an application for a permanent order filed prior to the expiration of that temporary order, the temporary order is deemed to have continued until the conclusion of the trial and the decision of the court. That was some 18 months after the granting of the temporary order. A temporary order can only exist for a limited period of time. That time had, indeed, expired and consequently a new temporary order could not be made.

The choices, therefore, for the judge were either to grant a supervisory order, or to dismiss the application. It is clear, and I do not think there is any dispute, that an order for guardianship was required as the finding made by the judge that the child was still in need of protection is an unassailable finding. The evidence also established and the judge found that the father was, as he described it, woefully unprepared to take [the child] back into his home at that time and, as well, the future prospects of the child going back into the home were very poor.

But inasmuch as he was not able, that is the father not able to parent the child at the time, a supervisory order returning him to the father’s home was not an available remedy. And consequently ruling those two out, the only available remedy was the one he granted, which was a permanent order. In short, or maybe not so short, I am satisfied that there are no arguable grounds in support of this appeal and consequently the criteria required to grant an extension of time have not been met.

In the result, I dismiss the application for extension of time. [ 15 ] The appellant, during the course of oral submissions, conceded that, should he be granted an extension of time to appeal, he would not be pursuing the first two grounds of appeal set out in para. 11 of these reasons and would only be arguing that the trial judge had erred in law. [ 16 ] The appellant submits that the trial judge erred in coming to the conclusion that the only appropriate order was a permanent order in favour of CFS.

He further argued that a supervisory order could have been granted under the provisions of s. 38(1) of the Act and that the trial judge failed to provide reasons as to why he considered that a permanent order was the appropriate relief. [ 17 ] With respect to this particular appeal, the appellant argues that the chambers judge himself fell into error when, in dismissing the above-noted argument, he came to the conclusion that the appellant had no arguable ground of appeal. [ 18 ] In response, CFS argues that the chambers judge committed no error and relies on s. 41 of the Act and the decision of Little J. in Child and Family Services of Western Manitoba v.

S.L. et al. , 2008 MBQB 287 , 233 Man.R. (2d) 287 . [ 19 ]

Section 41 of the Act provides: Maximum period of temporary guardianship

41(1) The total period of temporary guardianship shall not exceed (a) 15 months with respect to a child under 5 years of age; or (b) 24 months with respect to a child 5 years of age or older and under 12 years of age. Extension of guardianship for child over 12 41(2) A judge may extend the order of guardianship of a child 12 years of age or over for further periods not exceeding 24 months each. Age for purposes of subsecs. (1) and (2) 41(3) A child who was under 5 years of age when apprehended, shall be deemed for the purposes of clause (1)(

a) to be a child under 5 years of age even if at the time of making the order the child is 5 years of age or more but in all other cases the court shall be governed by the age of the child at the time of making the order. [ 20 ] In his reasons, delivered shortly after hearing closing submissions, the trial judge provided an extensive review of the facts before him and a clear analysis of why he came to the conclusion that the child was in need of protection. Unfortunately, he then provided little direct and specific insight as to why he granted the order that he did.

However, when his reasons are read in the context of the whole trial, including the submissions of counsel, it becomes evident that he made the order that he did, either because he accepted that, due to the amount of time the child had been in care, the only option that was left open to him was to make his order a permanent one on the basis of s. 41 of the Act , or that, based on the evidence before him, the making of a supervisory order was not an appropriate one to be made in the circumstances. [ 21 ] In my view, and notwithstanding the manner in which the appellant wishes to frame the issue, the real issue before us is not whether the provisions of s. 41 of the Act are sufficiently clear and were properly considered and applied, but whether, on the facts of the case, the order made by the trial judge was the proper one. [ 22 ] Based on the

summary of the evidence set out in the trial judge’s reasons, there was, in my view, no reasonable basis for the trial judge to consider granting a supervisory order, even if that option was open to him.

The evidence clearly demonstrated that the appellant was not in a position, either by himself or even with the help of his mother, to provide the care that the child was entitled to receive. [ 23 ] Therefore, in the circumstances of this case, I am satisfied that the chambers judge was correct in finding that the appellant did not have an arguable ground of appeal, as on the facts; a supervisory order of guardianship was simply not an appropriate order to grant. Even if the appellant’s argument with respect to the proper

interpretation to be given to s. 41 of the Act proved to be the correct one, that would still not change the fact that the appellant was simply incapable of properly caring for the child in question. [ 24 ] In order to enhance the possibility of the child being placed for permanent adoption, his status must be determined as soon as possible. Extending the passage of time by allowing an appeal to proceed that is, in my view, without any possible chance of success, is not in the best interest of the child or in compliance with the intent and purpose of the Act . [ 25 ] Accordingly, I would dismiss the appeal. J.A. I agree: J.A. I agree: J.A.