The Director of Child and Family Services v Date:, 2016 MBCA 123

Citation: The Director of Child and Family Services v Date: 20161215 HH and CG, 2016 MBCA 123 Docket: AH16-30-08685 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) K. J. Janovcik ) for the Appellant THE DIRECTOR OF CHILD AND ) FAMILY SERVICES ) M. L. Mitchell ) for the Respondent H.C.H. (Petitioner) Appellant ) ) M. D. Paluk ) for the Respondent C.A.G. ) - and - ) D. L.

Carlson ) on a watching brief for the ) Attorney General of Manitoba ) H.C.H. and C.A.G. ) Chambers motion heard: ) October 27 and December 1, 2016 (Respondents) Respondents ) ) Written reasons: ) December 15, 2016 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 section 75(2) of The Child and Family Services Act , CCSM c C80 ).

On appeal from 2016 MBQB 219 MAINELLA JA Introduction [ 1 ] The Director of Child and Family Services (CFS) moved for a stay of an order of a Court of Queen’s Bench judge returning the respondents’ infant daughter (the child) to them pending a child protection trial. After hearing the motion, I granted the stay with reasons to follow. These are my reasons.

Factual Background [ 2 ] The child was born on December 18, 2015, and was immediately apprehended pursuant to section 21(1) of The Child and Family Services Act, CCSM c C80 (the Act ). [ 3 ] The stated reason for the apprehension is a concern as to the respondents’ ability to care for the child because of their low level of cognitive functioning, lack of parenting skills, historical mental health issues and general instability in their household. The couple has had two other children in the last five years.

The first child, a boy, was apprehended one month after his birth and ultimately was the subject of a permanent order of guardianship. The second child, a girl, was voluntarily given up by the respondents immediately after being born, for private adoption. [ 4 ] CFS seeks a temporary order of guardianship of the child in order to conduct a parental capacity assessment (PCA). The respondents oppose the request. The child protection trial has been scheduled for January 30-February 3, 2017. [ 5 ] Traditionally, one of the few options open to parents of apprehended children for interim relief pending a child

protection trial is a “Watson hearing” where the narrow issue is whether there are reasonable and probable grounds for the apprehension(see Winnipeg Child and Family Services v KLW, 2000 SCC 48, [2000] 2 SCR 519 (Watson); and Child and Family Services of WesternManitoba v KB et al, 2006 MBCA 82 at paras 14-15, 205 ManR (2d) 270). The respondents objected to the apprehension of their child,the delay of the child protection trial and the lack of what they perceive to be meaningful interim remedies under the Act or the commonlaw.

They moved for interim relief pursuant to the Canadian Charter of Rights and Freedoms (the Charter). [6] In a decision delivered on July 4, 2016, a motion judge (motion judge #1) determined that the respondents’ rights undersection 7 of the Charter had been infringed by the 13 and one-half-month delay between the time of the child’s apprehension and thedate set for the commencement of the child protection trial (see Manitoba Director of Child and Family Services v HH and CG, 2016MBQB 138). [7] Motion judge #1 ordered that an interim hearing be held as to whether the child continues to be in need of protectionpending trial.

She determined that the interim hearing take a similar form to a Watson hearing, but the issue would be a different one forthe Court to decide, namely: “Would the child be in need of protection if returned pending trial?” (at para 109). Motion judge #1 statedthat such a hearing would focus on the issue of “whether there is a continuing need for protection of the child pending trial or whetherthe child could safely be returned to the parents while under apprehension” (at para 112).

At the interim hearing, the onus would be onthe petitioning agency to establish the child was in need of protection on the balance of probabilities. [8] Motion judge #1 also dismissed the alternative submission by the respondent father that the practice historically inManitoba as to Watson hearings has been flawed. He argued that a Watson hearing is supposed to be a hearing as to whether the child isin need of protection, not whether there simply were reasonable and probable grounds to apprehend. An appeal has been filed by bothCFS and the respondent father (File No.

AH16-30-08680). [9] While there is significant historical information from mental health professionals about the respondents, CFS attemptedto obtain a court-ordered PCA of the respondents for the upcoming child protection trial. On October 7, 2016, that motion wasdismissed by another motion judge (motion judge #2) (see Manitoba (Director of Child and Family Services) v HH and CG, 2016MBQB 191). [10] The interim hearing ordered by motion judge #1 took place before a third motion judge (motion judge #3) betweenOctober 11-13, 2016 (see Manitoba (Director of Child and Family Services) v HH and CG, 2016 MBQB 219).

On the significant recordthat was presented to him, motion judge #3 determined that the child was not in need of protection from her parents and ordered that thechild be returned to the respondents, but on a graduated schedule. Motion judge #3 also ordered that the child remain underapprehension of the petitioning agency pending trial. He further refused the request of CFS for a reconsideration of the decision bymotion judge #2 as to a PCA. Finally, he also declined to grant a stay of his order pending appeal. An appeal has been filed by CFS(File No.

AH16-30-08685). [11] One of the key findings of motion judge #3 was that, although both respondents have challenges in their ability to parent,given their collective desire to parent the child together, he was satisfied that if that occurred, the child would not be in need ofprotection.

He stated, “Were either of these parents presenting a parenting option independent of the other, my decision in this case mayhave been very different” (at para 32). [12] Pending the determination of the stay application by CFS in this Court, the parties consented to an interim ordersuspending the order of motion judge #3. [13] By consent the parties have agreed that the various appeals are to be heard together on January 20, 2017. The Law [14] It is well accepted that on a motion for a stay, the decision under appeal is presumed to be correct, and the party seekinga stay has a heavy burden.

Furthermore, the typical civil test as to the granting of a stay pending an appeal is modified to take intoaccount the best interests of children (see section 2(1) of the Act; Children’s Aid Society of Western Manitoba v D (1986), (MB CA), 41 ManR (2d) 258 at para 9 (CA); Child and Family Services of Western Manitoba v KB et al, 2006 MBCA 48 atpara 27, 205 ManR (2d) 31; and EG et al v Child and Family Services of Winnipeg, 2012 MBCA 65 at paras 51-54, 280 ManR (2d) 148). [15] The three factors that are to be considered cumulatively in determining whether it is in the overall interests of justice togrant a stay pending appeal of a child protection matter are:

i) is there a serious question to be argued on appeal; ii) is there a reasonably perceivable risk that the child may suffer harm if the stay is not granted; and iii) on the balance of convenience, who would suffer greater harm from the granting or refusal of the stay. [16] In consideration of the second and third factors, the Court must, as part of its analysis, take into account the child’s bestinterests (see KB at para 27; and section 2(1) of the Act). [17] The three factors are not separate hurdles for an applicant to establish; rather they are interrelated considerations.

Strength in one of the factors can be compensated for weakness in another (see Apotex Fermentation Inc et al v Novopharm Ltd et al(1994), (MB CA), 95 ManR (2d) 241 at para 14 (CA); and SECFS v LB and GJ, 2016 MBQB 95 at para 11). Analysis and Decision Serious Question to be Argued

[18] The questions raised by CFS in the two appeals can be divided into allegations of legal errors by motion judge #1 andmotion judge #3, and the argument that motion judge #3’s decision that the child was not in need of protection pending trial, wasunreasonable. [19] The legal errors advanced by CFS can be summarized as follows: (

i) The respondents refused to demand an immediate post-apprehension Watson hearing; accordingly, CFS argues they were notdenied procedural fairness in violation of

section 7 of the Charter; (ii) CFS submits that, contrary to the decision of motion judge #1, the Act does provide for meaningful interim access for parentsof an apprehended child in appropriate cases.

CFS says that parents of apprehended children have the right under sections 27(3)-(5) ofthe Act to challenge restrictions on access to a child in court on an interim basis and the agency, not the parent, has the burden of proof tojustify any restrictions on access; (iii) CFS argues that the section 24(1) Charter remedy ordered by motion judge #1 of an interim hearing on whether or not a childcontinues to be in need of protection, with the onus on the agency on the balance of probabilities, is contrary to the procedure created bythe Act.

CFS says, while motion judge #1 has not struck down the provisions of the Act pursuant to section 52(1) of the Constitution Act,1982, her use of section 24(1) of the Charter conflicts with a number of requirements of the Act, which will have the dilatory effect ofincreasing, rather than decreasing, delay in child protection matters; and (iv) CFS submits that the decision of motion judge #3 was illegal.

CFS says that motion judge #3’s conclusion that the child wasnot in need of protection, but would be under a form of apprehension and supervision by the petitioning agency pending trial, is contraryto the provisions of the Act. CFS says if a child is not in need of protection, there is no legal basis for an agency to apprehend orsupervise the child. It argues that the order of the Court conflicts with the mandate that CFS has been given by the Legislature in the Act. [20] The respondents concede, and I agree, that CFS has an arguable case on appeal on the legal errors it has raised.

Thelegal issues raised in this case are novel and have implications for any proceedings involving a child who is the subject of a warrantlessapprehension under the Act. The claim of CFS is not vexatious or frivolous (see RJR—MacDonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311 at 337-38). Accordingly, it is not necessary for me to decide whether CFS has an arguablecase on the factual question of whether motion judge #3’s decision that the child was not in need of protection pending trial wasunreasonable. This factor favours granting the requested stay.

Reasonably Perceivable Risk of Harm to the Child [21] Typically, in an application for a stay, the court examines whether the moving party would suffer “irreparable harm” ifthe status quo is not preserved until the litigation is completed (RJR-MacDonald at pp 340-41). That analysis is however unsuitable forchild protection matters, and is too high a burden on an applicant such as CFS.

The proper analysis as explained by Freedman JA in KB,is whether “there is a reasonably perceivable risk that the child may suffer harm if the stay is not granted” (at para 28). [22] The status quo is that the child is in foster care with liberal daily access afforded to the parents. With appropriateconditions placed on the parents in the exercise of their access rights, there is no reasonably perceivable risk of harm to the child in therelatively short period of time until the appeals are heard. In my view, this is in the best interests of the child. This factor favoursgranting the stay.

Balance of Convenience [23] The question of the balance of convenience requires examination of which of the parties will suffer greater harm fromthe granting or refusal of the stay. The relevant factors to weigh vary from case to case, but in a case where constitutional issues areraised such as here, the public interest is a factor that must be taken into consideration (see RJR—MacDonald at pp 342-44). [24] On the question of the best interests of the child in terms of the balance of convenience, the finding of motion judge #3is important.

He was not of the view that the child should be immediately returned to the respondents. He wanted them to have thebenefit of supervision by child welfare personnel in the short term. That distinguishes this situation from one in which a judgedetermines it is in the best interests of the child to order the immediate return of the child to the care of his or her parents. [25] The public interest also favours the granting of a stay. The decision of motion judge #1 has broad implications for childprotection proceedings where a child protection trial cannot proceed in a timely fashion.

Motion judge #3 was not bound to follow thedecision of motion judge #1, but he decided to do so. I make that observation uncritically. While uncommon, it is not unprecedentedthat judges of the same court disagree as to whether or not they have jurisdiction in a particular circumstance.

Judicial comity did notrequire motion judge #3 to follow the process set by motion judge #1 as to conducting the hearing or the standard to be used to decide thematter. [26] As Sharpe JA observed in Frank et al v Canada (Attorney General), 2014 ONCA 485, 323 OAC 73, “where a complexstatutory scheme or administrative apparatus has to be dismantled or constructed in order to give effect to the trial judgment” (at para 27),the balance of convenience, mindful of the public interest, will typically favour a stay to avoid the disruption of implementing a newregime that may be reversed on appeal. [27] Because the legality of the process regarding what interim proceedings are available (and the form they should take) inchild apprehension cases is at issue in the appeals to be heard on January 20, 2017, there is, in my view, a strong public interest in favourof staying motion judge #3’s order until such time as this Court has an opportunity to hear and determine the appeals.

This will ensurethe orderly administration of the law for cases beyond just this one. [28] While I understand, and am sympathetic to, the desire of the respondents to be reunified with their child full-time as soonas possible, in my view, the balance of convenience favours preserving the status quo for the next eight weeks until the appeal is heard.

Leaving matters as they are currently minimizes breaks in the continuity of the child’s care and is not inconsistent with motion judge #3’s determination that supervised parenting of the child by the respondents is the best option for the short term. As well, since the respondents desire an opportunity to improve their parenting skills, the current arrangement will allow them time to do so with a support system from the foster parents and others. That, too, is in the long-term best interests of the child.

Disposition [ 29 ] Having been satisfied that it is in the overall interest of justice to grant the stay requested, the order of motion judge #3 will be stayed, pending the hearing and determination of the appeals subject to the discretion of the panel. [ 30 ] The respondents will have daily access to the child between 9:00 a.m. and 6:00 p.m.

Given motion judge #3’s finding that co-parenting of the child is necessary by the respondents, and the respondent’s father’s evidence at the interim hearing that he becomes anxious and uncertain if left alone too long with the child, it is ordered that, while the respondents are exercising their access rights, the child is not to be left alone with only one of the respondents for more than two hours, unless another responsible adult is also present. JA