The Director of Child and Family Services Date:, 2017 MBCA 27

Citation: The Director of Child and Family Services Date: 20170224 v JG and KB, 2017 MBCA 27 Docket: AH16-30-08595 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Christopher J. Mainella Madam Justice Jennifer A. Pfuetzner BETWEEN : ) T. L. Grant and THE DIRECTOR OF CHILD AND ) C. L. Sarna FAMILY SERVICES ) for the Appellant ) (Petitioner) Appellant ) C. L. Dunn ) for the Respondent K.R.B. ) ) D. L.

Carlson - and - ) on a watching brief for ) the Attorney General of ) Manitoba ) J.L.L.G. (AKA J.L.L.B.) (Deceased) and ) Appeal heard: K.R.B. (AKA K.R.T.) ) February 1, 2017 ) (Respondents) Respondents ) Judgment delivered: ) February 24, 2017 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). MAINELLA JA Introduction [ 1 ] The petitioner appeals the adjournment of a child protection hearing (the hearing).

While the appeal is moot because of the passage of time, it should still be heard and determined because it raises important issues about the adjournment of child protection proceedings that have wider implications. Background [ 2 ] The respondent father’s daughters, now aged three and four, were apprehended as infants after their mother was killed and the father was charged with offences related to her death. The petitioner seeks a permanent order of guardianship.

The children have been placed temporarily with relatives who wish to adopt them. [ 3 ] The original date for the hearing was set for 19.5 months after the apprehension. No temporary orders were granted in relation to the children. Approximately three weeks before the hearing, the father sought an adjournment as his criminal trial, while underway, was not completed.

The adjournment application was heard by the pre-trial judge. [ 4 ] Sections 29(2) and 36 of The Child and Family Services Act , CCSM c C80 (the Act ) govern the adjournment of child protection proceedings: Adjournment 29(2) Upon application, a judge, master or justice of the peace may adjourn the hearing from time to time as may be required.

Proceedings informal 36 Proceedings under this Part may be as informal as a judge or master may allow and no order under this Part shall be set asidebecause of any lack of formality at the hearing or for any other technical reason not affecting the merits of the case. [5] As the Act sets out, a pre-trial judge has jurisdiction to determine adjournment requests and those hearings can beconducted informally, as was the case here. The father’s request for an adjournment of the hearing was refused.

The pre-trial memo setout the pre-trial judge’s reasons for refusing the adjournment: The father’s trial respecting a charge of manslaughter in the death of the children’s mother is scheduled for continuation June 27, 2016,and is expected to conclude within a few days. Through counsel, he requested that the child protection trial be adjourned. He isopposing the relief sought by the Agency. Both the Agency and the guardianship applicants strongly oppose the father’s request for anadjournment.

Given the circumstances of the case, including the length of time that has passed since the children were apprehended, thelength of time since they last saw their father, their young ages, the uncertainty of the outcome of the father’s criminal proceeding(including the possibility of an appeal), 4 and 1/2 days of trial are not available until February 2017, and the importance of a resolutionfor the sake of the children, the father’s request for an adjournment was denied. [6] The father renewed the adjournment request to a different judge assigned to the hearing.

The prior reasons refusingthe adjournment request were filed as part of the record before the hearing judge. The hearing judge rejected the father’s constitutionalargument that the hearing would violate his right against self-incrimination. However, she granted the adjournment and delayed thehearing a further ten months approximately because, in her view, the “fairness of procedure” dictated that the criminal proceeding occurfirst.

She expressed concern about whether the hearing could be conducted fairly with the full participation of the father as he was in themiddle of his criminal trial and he could be compelled to testify at the hearing. She stated that “the nature of the charges against thefather, having been involved in the death of the mother” made the case exceptional.

Standard of Review and Consideration of Moot Appeals [7] An adjournment is a discretionary decision that cannot lightly be interfered with on appeal absent an error thatoccasions a decision that is unreasonable, clearly wrong or unjust (see Magnusson v Duguay, 2015 MBCA 65 at para 11, 319 ManR (2d)224).

As Hamilton JA explained in Director of Child and Family Services (Man) v JA, 2006 MBCA 44, 205 ManR (2d) 50, “Providedthat a judge exercises this discretion judicially and does not err in principle, a court of appeal should not interfere” (at para 21). [8] The petitioner concedes that its appeal is moot because the hearing will commence in less than a month. Therefore,the preliminary question here is whether the Court should exercise its discretion to hear the appeal (see Borowski v Canada (AttorneyGeneral), (SCC), [1989] 1 SCR 342 at 353).

The onus rests on the party (in this case, the petitioner) seeking adetermination on the merits of the moot appeal to demonstrate that there is reason to depart from the general rule against hearing mootappeals (see Woods et al v Canada (Attorney General), 2005 MBCA 24 at para 23, 192 ManR (2d) 117). [9] The relevant criteria to consider are threefold. First, is there an adversarial context to ensure that the issues areproperly argued? Second, is there a concern about judicial economy if limited judicial resources are used to decide the case? Third, willthe court overstep its role by deciding the case?

The court must be aware of its limited law-making function through adjudication of livecontroversies and not usurp the role of the legislature to develop the law broadly (see Borowski at pp 358-63; and New Brunswick(Minister of Health and Community Services) v G (J), (SCC), [1999] 3 SCR 46 at para 43). [10] As explained in Borowski (at p 363), each of the three criteria is not an individual threshold. Rather, the discretionshould be exercised cumulatively, mindful of the relevant circumstances, as to whether or not it is appropriate to depart from the generalrule against hearing moot appeals.

Analysis and Decision [11] While the substance of the dispute has disappeared as the hearing will commence later this month, I am not concernedthat there is a lack of an adversarial context. The question of the adjournment of child protection proceedings is a common reoccurringissue for the petitioner, and counsel for the father, who is experienced in child protection matters, ably argued the issue as if the disputestill existed. [12] I also have no concerns as to judicial economy.

Adjournment decisions have day-to-day importance in the business oftrial courts but are evasive of appellate review in the normal litigation process. This characteristic favours hearing the appeal despite itbeing moot (see Borowski at pp 360-61). Additionally, this case raises an issue of public importance relating to children. The questionof adjourning a child protection proceeding when there is a parallel criminal proceeding is an issue of public importance.

Clarification ofthe law as to how concurrent proceedings should be conducted, taking into account the statutory requirement of consideration of the bestinterests of the child, is in the public interest. The issue has never been dealt with previously by this Court and a decision will be usefulto future litigants (see First Nations of Northern Manitoba Child and Family Services Authority v Manitoba (Minister of Family Servicesand Housing) et al, 2014 MBCA 42 at paras 50-53, 306 ManR (2d) 33). [13] Finally, this Court can readily address the merits of the appeal without overstepping its proper role.

The legislature hasleft the question of adjournment of legal proceedings to the discretion of judges. This Court is well positioned to provide guidance as tothe factors to be considered in relation to adjournments in child protection proceedings. [14] In my view, the petitioner has demonstrated that the interests served by determination of the appeal on the meritsoutweigh the general rule against hearing moot appeals. I turn now to the merits of the appeal.

[15] In dismissing the constitutional argument, the hearing judge was correct that the hearing has procedural protections andconfidentiality aspects to ensure that an accused’s right to a fair trial in a related criminal proceeding is not infringed. She was alsocorrect that it is for the criminal trial judge to decide whether the conduct of the hearing affected the fairness of the criminal trial. Despite these conclusions, she determined that delay of the hearing was necessary to ensure procedural fairness.

In my view, thatdecision was arrived at by legal error that made the adjournment granted unreasonable. [16] It is a fundamental principle that the law assumes that concurrent proceedings on the same facts can be conductedfairly (see Phillips v Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), (SCC), [1995] 2 SCR 97 atpara 165).

Absent exceptional or extraordinary circumstances, a civil proceeding does not await a related criminal prosecution (seeStickney v Trusz (1973), (ON SC), 2 OR (2d) 469 at 471 (H Ct J), aff’d (1974) (ON SCDC), 3 OR(2d) 538 (Div Ct), aff’d (1974) 3 OR (2d) 538 at 539 (CA), leave to appeal to SCC refused, [1974] SCR xii; and Ma Wai Kay v McGayLimited; McGay Limited v Wong (1979), (MB KB), 6 ManR (2d) 292 at paras 12-14 (QB). [17] Because the civil matter here is a child protection proceeding, the exceptional or extraordinary circumstances claimedmust also not be inconsistent with the best interests of the child because section 2(1) of the Act requires that consideration be taken intoaccount (see JA at paras 24-25). [18] When an individual faces a civil proceeding in addition to a related criminal charge, the concern that arises is whethercontinuation of the civil proceeding may infringe the individual’s right to a fair trial in the criminal matter if it is not adjourned ortemporarily stayed (see Nash v Ontario (1995), (ON CA), 27 OR (3d) 1 at 7 (CA)).

In such cases, the relevantinquiry for a court, in exercising its discretion as to whether there are exceptional or extraordinary circumstances to stay or adjourn acivil proceeding, relates to whether there is specific prejudice to the fair-trial rights of the applicant on the criminal charge that cannotadequately be addressed by the rules governing the civil proceeding or a remedy available to an accused in the criminal process.

Thethreshold to justify the granting of a stay or adjournment of a civil proceeding in favour of a criminal proceeding is a “high one”(Schreiber v Canada (Attorney General) (2001), (ON CA), 153 OAC 137 at para 4). [19] The hearing judge’s concern about the father being seriously prejudiced because the social worker might testify at thecriminal trial about what the father said at the hearing, if it was conducted first, was speculative and, more importantly, did not take intoaccount the statutory and constitutional protections against compelled self-incrimination that the father enjoys for testimony he may giveat the hearing (see R v Henry, 2005 SCC 76 at paras 22-23, [2005] 3 SCR 609; Children’s Aid Society of Ottawa v JP, 2012 ONSC 3420at para 15 ;

section 13 of the Canadian Charter of Rights and Freedoms; section 5(2) of the Canada Evidence Act, RSC, 1985 cC-5; and section 6(2) of The Manitoba Evidence Act, CCSM c E150). [20] There was no basis here to support the hearing judge’s conclusion that holding the hearing before completion of thefather’s criminal trial would result in a lack of “[e]ffective parental participation” by the father in the determination of what was in thebest interests of his children (see G (

J) at para 73). This is not an exceptional case merely because the same or closely related facts giverise to parallel proceedings. If that were the case, any time a parent is charged with any offence in relation to a child or another parent, asis the case here, child protection proceedings would automatically be delayed until the criminal proceeding was concluded. [21] There are also several reasons why it was not in the best interests of the children here to delay the hearing.

While thefacts between the two proceedings overlap, the legal issues in child protection proceedings are distinct from those in a criminal trial. Thestandards of proof in the two proceedings also differ. Even if the father is acquitted of his charges, the circumstances of the mother’sdeath, applying the civil standard, may lead a court to conclude he should not parent the children going forward and that the petitioner’splan is in the best interests of the children.

Furthermore, there is an inherent incongruity in the idea that a temporary placement awaitingchild protection proceedings can exceed the 15-month statutory limitation for an order of temporary guardianship for a child under agefive (see section 41(1)(

a) of the Act; Sagkeeng Child and Family Services v ARW et al, 2006 MBQB 256 at paras 74-75, 209 ManR (2d)247; and The Director of CFS v NL, WW and NP, 2016 MBQB 31 at para 167). [22] It is undisputed that matters affecting children must be disposed of as expeditiously as possible. The passage of time inchild protection matters creates a “heavy burden for all concerned” (see Catholic Children’s Aid Society of Metropolitan Toronto v M(C), (SCC), [1994] 2 SCR 165 at 206).

Also, the granting of a stay or adjournment of a civil proceeding in favour of acriminal proceeding is inherently prejudicial because there is a denial of “early access to . . . civil justice” (see Schreiber at para 8). [23] In my view, the legal error here, the determination that the hearing cannot be conducted fairly because of the father’soutstanding criminal charges on the same or closely related facts, cannot be said to be harmless in its effect. It has contributed materiallyto the approximate 30-month delay of the hearing from when the children were apprehended.

Even accounting for some facts of thiscase that make a small portion of this delay understandable, the delay of the child protection proceedings for these young children is“highly unreasonable” (see Winnipeg Child and Family Services v KLW, 2000 SCC 48 at para 136, [2000] 2 SCR 519). [24] I agree with the reasons the pre-trial judge gave in refusing the adjournment. The delay here was simply too long andthe warrantless apprehension of the children needed to be addressed by some order of the Court.

Unfortunately, it is not clear from thehearing judge’s reasons that she considered the pre-trial judge’s reasons for refusing the father’s request. At first blush, the result hereseems anomalous. Alternative decisions, in close proximity of time, were given on indistinguishable facts by two judges of the samecourt. Accordingly, some comment about subsequent adjournment requests may be of some assistance going forward. [25] There are two aspects of the second request for an adjournment of the father’s hearing that are noteworthy.

First, therewas no material change in circumstances in the three weeks between the two adjournment requests. If new and important facts arise inthe interval between adjournment requests, that may, by itself, necessitate a different decision on a subsequent adjournment request. Second, counsel for the father did not suggest or demonstrate an error in the pre-trial judge’s exercise of discretion in refusing the initialadjournment request.

If the refusal of an adjournment is based on an error in principle or otherwise creates a severe injustice, thedecision may be revisited. [26] While a judge conducting a trial or hearing is not strictly bound to follow the prior decision of a colleague refusing a

request for an adjournment, for reasons of comity, finality and the orderly administration of justice, the reasons for the initial refusalshould be carefully considered and not lightly departed from absent strong reasons to the contrary (see generally Re Horne and Evans (1986), (ON SC), 54 OR (2d) 510 at 511 (H Ct J), aff’d on other grounds (1987), (ON CA), 21 OAC 313). Disposition [27] I would allow the appeal but, given that the hearing will commence later this month, I would make no further order. JA I agree: JA I agree: JA