Manitoba (Director of Child and Family Services) Date:, 2017 MBCA 33

Citation: Manitoba (Director of Child and Family Services) Date: 20170309 v HH and CG, 2017 MBCA 33 Dockets: AH16-30-08680; AH16-30-08685 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella Madam Justice Jennifer A. Pfuetzner BETWEEN : THE DIRECTOR OF CHILD AND ) K. J. Janovcik and FAMILY SERVICES ) T. L. Grant ) for the Appellant ) (Petitioner) Appellant ) M. D. Paluk ) for the Respondent ) C. A. G - and - ) ) M. L. Mitchell ) for the Respondent H. C. H. and C. A. G. ) H. C. H. ) ) S. M. Walsh and (Respondents) Respondents ) K. D.

Toyne ) for the Intervener ) - and - ) D. L. Carlson ) for the Attorney General ) of Manitoba THE ASSEMBLY OF MANITOBA ) CHIEFS ) Appeals heard: ) January 20, 2017 ) Intervener ) Judgment delivered: ) March 9, 2017 NOTICE OF RESTRICTION ON PUBLICATION: No press, radio or television report shall disclose the name or 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 138 ; and 2016 MBQB 219 BURNETT JA Introduction [ 1 ] This appeal concerns the warrantless apprehension of a child at birth pursuant to section 21(1) of The Child and Family Services Act , CCSM c C80 (the Act ). The respondents (the parents) moved promptly for a hearing to determine whether the apprehension was justified. As will be seen, the delay in conducting that hearing was unacceptable. [ 2 ] The fundamental issues raised in this appeal were addressed by the Supreme Court of Canada 17 years ago in Winnipeg Child and Family Services v KLW , 2000 SCC 48 , [2000] 2 SCR 519 ( KLW ).

In KLW the Court determined that, in the context of a warrantless apprehension, a fair and prompt post-apprehension hearing is the minimum procedural protection mandated by the principles of fundamental justice. [ 3 ] The motion judge in the Court below (the motion judge) correctly determined that the failure to conduct a prompt hearing violated the parents’

section 7 Charter rights, specifically the right to “life, liberty and security of the person”, and was contrary to the principles of fundamental justice (see the Canadian Charter of Rights and Freedoms ). [ 4 ] The core issue on appeal relates to the appropriate remedy. Delay in child protection proceedings is a very important public issue with significant implications beyond this case. The motion judge ordered an interim hearing. For the reasons which follow, it is my view that an expedited hearing was the appropriate and just remedy in the circumstances.

Factual Background [ 5 ] The parents’ circumstances and the history of the proceedings have been described in three previous decisions, namely the decision of the motion judge ( 2016 MBQB 138 ), the decision of the hearing judge ( 2016 MBQB 219 ) and the decision of my colleague Mainella JA ( 2016 MBCA 123 ) where he granted a stay of the hearing judge’s decision pending the outcome of this appeal. [ 6 ] The child was born and apprehended on December 18, 2015.

The basis for the apprehension was “concerns with the parents’ mental health issues, cognitive functioning limitations and concerns with their ability to care for a child” ( 2016 MBQB 138 at para 13 ). [ 7 ] Each of the parents filed motions challenging the apprehension. [ 8 ] “Because issues of timing and delay are relevant to the s. 7 analysis, it is necessary to set out the procedural history of this case in some detail” ( KLW at para 55 ). The following is a timeline and

summary of the important post-apprehension proceedings: December 23, 2015 Petition and Notice of Hearing filed and served. December 31, 2015 The parents attended the first court appearance; the proceedings were adjourned to January 18, 2016 to permit the parties to obtain counsel. January 16, 2016 Counsel for the parents received particulars. January 18, 2016 The parents attended with counsel; the matter was adjourned to February 8, 2016. February 8, 2016 A pre-trial conference was set for March 24, 2016. February 24, 2016 The respondent C. A.

G. (the father) filed a motion for an order scheduling a post- apprehension hearing; the motion was returnable February 29, 2016. February 29, 2016 The father’s motion resulted in the March 24, 2016 pre-trial conference being moved forward to March 14, 2016. March 14, 2016 The pre-trial conference was conducted on this date but adjourned to March 23, 2016 to allow the respondent H. C. H. (the mother) to file a motion for the return of the child and a constitutional question.

March 17, 2016 The mother filed a motion returnable March 23, 2016, for a “quick and fair interim hearing” as to whether the child was in need of protection on December 18, 2015, for an order quashing the apprehension and for an order of access pending trial, as well as other relief. March 18, 2016 The mother filed a Notice of Constitutional Question. March 23, 2016 At the pre-trial conference, deadlines for the filing of briefs were agreed to, a hearing was set for May 19, 2016 to determine two preliminary matters, and trial dates were set for January 30-February 3, 2017 .

May 19, 2016 The motions were heard by the motion judge. July 4, 2016 The motion judge issued reasons for decision directing that there would be an interim hearing to determine whether the child continued to be in need of protection pending trial. September 1, 2016 A pre-trial conference was held and dates were set (October 11-12, 2016) for the interim hearing . October 11-13, 2016 An interim hearing was held before the hearing judge.

October 13, 2016 The hearing judge provided an oral decision (with written reasons to follow) that the child was not in need of protection pending trial and that the child ought to be returned to the care of her parents on a graduated schedule, with an absolute return on November 9, 2016. He further ordered that the child would remain under apprehension and under the petitioner’s (the Agency)’s supervision, but in the care and control of the parents, until disposition at trial.

October 20, 27, 2016 Implementation of the hearing judge’s decision was suspended effective October 20, 2016, pending the determination of the within appeals. Relevant Statutory Provisions

[ 9 ] The relevant sections of the Act have been reproduced in Appendix A to these reasons. Unless otherwise indicated, all references to

section numbers in this decision are references to sections of the Act .

The Motion Judge’s Decision [ 10 ] The motion judge commenced her decision with the observation that “[t]his motion likely would not have arisen if the court was able to offer timely trial dates to the respondent parents” (at para 1), and she described the issue before her in the following terms (at para 31): Given the lengthy court delays in reaching the ultimate hearing date, should there be some kind of interim adjudication process relating to the issue of whether the child continues to be in need of protection pending trial in order to ensure the parents’ s. 7 Charter rights are not violated in a way that offends the principles of fundamental justice by the absence of prompt access to a hearing? [ 11 ] The motion judge observed that after the decision in KLW , the Family Division of the Court of Queen’s Bench (the Family Division) developed a practice, akin to a judicial review, called a Watson hearing whereby the sole issue before the Court was whether there were reasonable and probable grounds, objectively and subjectively, to apprehend the child. [ 12 ] In the present case, neither parent was seeking a Watson hearing.

The motion judge indicated that the mother was asking the Court to create a new procedure (i.e. an interim adjudication as to whether the child could be returned to the parents pending trial), while the father requested a prompt hearing on the merits as required by the Act (i.e. to determine whether there was serious harm or serious risk of harm to his child at the time of apprehension).

Both parents argued that the focus of the prompt hearing would be whether the child should be returned to the parents, with appropriate supports and supervision, pending trial. [ 13 ] It was the motion judge’s opinion that the delay in this case totally frustrated the scheme of the Act . She found that the delay impacted the parents’

section 7 Charter rights in a way that was not in accordance with the principles of fundamental justice, and the fact that a Watson hearing was available did not address the constitutional requirement for a prompt and fair hearing in circumstances of back-logged courts and long delays until trial. [ 14 ] In terms of remedy, the motion judge felt certain that if the Court could have given expedited trial dates, it would have, and that it was abundantly clear that there were not enough resources to accommodate these litigants in a timely fashion.

The motion judge expressed the hope that, given the strain on the Court’s resources, a child welfare agency in similar circumstances would simply agree to a parent’s request for an interim hearing. [ 15 ] The motion judge concluded (at para 114): In the result, I find that allowing an interim hearing , at the request of the parents within the timelines set out in the present court policies , would be both prompt and fair.

This targeted and limited post-apprehension proceeding would satisfy the principles of fundamental justice. [emphasis added] [ 16 ] The motion judge declined to exercise parens patriae jurisdiction, and she rejected the father’s argument that the decision in Michif Child and Family Services v VEMB et al , 2016 MBCA 13 at para 65 , 326 ManR (2d) 69 , changed the law in KLW or created a new test for warrantless apprehensions.

The Hearing Judge’s Decision [ 17 ] The hearing judge provided a brief oral decision which was followed by written reasons. [ 18 ] In his oral reasons, he found that the Agency had failed to prove that the child would be in need of protection if returned to the parents pending trial. Significantly, he found that there had been no concerning behaviour tied to mental health attributed to these parents since at least the spring of 2015. Having found that the child was not in need of protection, he also concluded that an immediate return of the child to the parents may not be in the child’s best interests.

For that reason, he ordered a graduated return between October 14 and November 9, 2016, and an absolute return on November 9, 2016. He added: Pending trial, the child will remain under apprehension in the supervised care of the agency.

And to be clear, when I say “the supervised care”, I mean that the agency will have a responsibility to supervise matters reasonably but that the child will be in the care and control of the parents pending trial. [ 19 ] Immediately following the pronouncement of the oral decision, Agency counsel requested a stay pending appeal on the basis that the Agency did not have the mandate or the jurisdiction under any statute to maintain an apprehension over a child that was not found to be in need of protection. [ 20 ] In his written reasons, the hearing judge set out the parameters of the interim hearing, based on his understanding of the motion judge’s earlier decision, and his view as to the purpose of the final hearing (at paras 5-6):

The parameters created for an interim hearing are as follows: 1. The issue is whether the child is in need of protection if returned to the parents pending trial. 2. The onus of proof is on the Agency. 3. The burden of proof is the balance of probabilities. 4. If the Agency’s position is accepted, the child remains in care pending a full hearing. If the child is found to not be in need of protection pending trial, the child will be returned to parental care but will remain under apprehension and Agency supervision pending trial.

At the final hearing of the matter, the issue of protection is to be considered again at a fresh hearing.

The trial judge is to consider whether the child was in need of protection at the time of apprehension, whether the child was in need of protection at the time of trial, and if so, what is the appropriate remedy. [ 21 ] Following a review of the evidence, the parties’ submissions and the relevant legislation, the hearing judge offered that if either parent had presented a parenting option independent of the other, his decision may have been very different. [ 22 ] Given his finding that the child was not in need of protection, the hearing judge said that, in accordance with the parameters for an interim hearing set by the motion judge, the child would remain in the care of the parents pending trial under the supervision of the Agency.

The Issues and Standards of Review [ 23 ] The Agency raises three issues: 1. Did the motion judge err in holding that the parents were deprived of their right to security of the person in a way that was not in accordance with the principles of fundamental justice? 2. If the parents’

section 7 Charter rights were infringed, did the motion judge and the hearing judge err in their application of section 24(1) of the Charter ? 3. Did the hearing judge err in finding that the child was not in need of protection from her parents? [ 24 ] This Court addressed the standard of review for the first issue in R v Farrah (D) , 2011 MBCA 49 , 268 ManR (2d) 112 (at para 7 ):

a) When examining a judge’s decision on whether a Charter breach occurred, the appellate court will review the decision to ensure that the correct legal principles were stated and that there was no misdirection in their application. This raises questions of law and the standard of review is correctness.

b) The appellate court will then review the evidentiary foundation which forms the basis for the judge’s decision to see whether there was an error. On this part of the review, the judge’s decision is entitled to more deference and, absent palpable and overriding error, the facts as found by the judge should not be disturbed (see Grant [ R v Grant , 2009 SCC 32 , [2009] 2 SCR 353 ] at para. 129).

c) The appellate court will also examine the application of the legal principles to the facts of the case to see if the facts, as found by the judge, satisfy the correct legal test. In the criminal law context, this is a question of law and the standard of review is correctness ( see R. v . Shepherd , 2009 SCC 35 at para. 20 , [2009] 2 S.C.R. 527 ). [ 25 ] In Young v Ewatski et al , 2012 MBCA 64 at paras 30-43 , 280 ManR (2d) 239 , Beard JA addressed the potential differences between civil and criminal

section 7 Charter cases, and she concluded (at para 42): While there appears to be some inconsistency as to the appropriate standard of review in a civil case dealing with constitutional issues for a question involving the application of the law to the facts where there is no extricable error of law, the weight of the authority favours the civil standard of review, being that of palpable and overriding error. [ 26 ] The standard of review for the second issue was set out by the Supreme Court in R v Bjelland , 2009 SCC 38 , [2009] 2 SCR 651 (at para 15 ):

The trial judge’s choice of remedy under s. 24(1) of the Charter is discretionary. However, the trial judge must exercise that discretion judicially. An appellate court will intervene where the trial judge has misdirected him or herself or where the trial judge’s decision is so clearly wrong as toamount to an injustice (see R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at paras. 117-18). Subsequently, in R v Babos, 2014 SCC 16, [2014] 1 SCR 309, the majority of the Supreme Court stated (at para 48): The standard of review for a remedy ordered under s. 24(1) of the Charter is well established.

Appellate intervention is warranted only where a trialjudge misdirects him or herself in law, commits a reviewable error of fact, or renders a decision that is “so clearly wrong as to amount to an injustice”(Bellusci [R v Bellusci, 2012 SCC 44, [2012] 2 SCR 509], at para. 19; Regan [R v Regan, 2002 SCC 12, [2002] 1 SCR 297], at para. 117; Tobiass[Canada (Minister of Citizenship and Immigration) v Tobiass, (SCC), [1997] 3 SCR 391], at para. 87; R. v. Bjelland, 2009 SCC 38,[2009] 2 S.C.R. 651, at paras. 15 and 51).

See also R v Donnelly, 2016 ONCA 988 at paras 43-44; R v Chu, 2016 SKCA 156 at para 40; and R v Gowdy, 2016 ONCA 989 at para 65. For anon-criminal example, see Doucet—Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62 at para 87, [2003] 3 SCR 3. [27] The standard of review for the third issue is palpable and overriding error, with the proviso that deference is owed to an interimfamily order given its discretionary nature.

In the recent case of Child and Family Services of Western Manitoba v CLH et al, 2016 MBCA 120, thisCourt said (at para 29): The issue of whether the evidence was sufficient to meet the test for a child in need of protection raises a question of mixed fact and law; thus, thestandard of review is that of palpable and overriding error. See also AC v Nova Scotia (Community Services), 2017 NSCA 1 (at para 17): The standard of review of a trial judge’s decision on a child protection matter is well-settled.

The Court may only intervene if the trial judge erred inlaw or has made a palpable and overriding error in her appreciation of the evidence. See also LSO v SO, 2016 SKCA 151 (at para 13): In A.T.H. v Ministry of Social Services, 2011 SKCA 101 , 385 SaskR 31, this Court adopted the standard of review in child protectionmatters as outlined in New Brunswick (Minister of Health and Community Services) v C.(G.C.), (SCC), [1988] 1 SCR 1073.

Thatcase emphasized that a trial judge’s decisions should not be interfered with lightly by appellate courts absent an error in principle, a failure to considerall relevant factors, a consideration of an irrelevant factor, or a lack of factual support for the decision. [28] The father has cross appealed. He says that the motion judge misinterpreted the issue in KLW and misunderstood the SupremeCourt’s decision.

He submits that the motion judge erred in law by finding that an interim hearing within the timeline set out in the present courtpolicies would be both prompt and fair and that such a hearing would satisfy the principles of fundamental justice. [29] The issues raised by the father are subsumed in, and will be addressed in the context of, the issues raised by the Agency. The Agency’s Position [30] The Agency admits that the parents were deprived of their

section 7 Charter right to security of the person, but says that thedeprivation was in accordance with the principles of fundamental justice. [31] According to the Agency, the parents had ample opportunity to demand an immediate post-apprehension Watson hearing for thereturn of their child and an opportunity to seek a pre-trial and trial earlier in the proceedings. They did not do so.

The Agency submits that sinceimmediate post-apprehension court supervision was available but not sought, it is incorrect and unreasonable to conclude, as the motion judge did,that the parents’ security of person rights were infringed as a result of a lack of procedural fairness. [32] Moreover, given that it is the physical removal of a child from a parent’s care that is significant for the engagement of

section 7rights, the ability under the Act to review the restrictions on access, at any time and on an interim basis, further ensures that the principles offundamental justice are respected in child protection proceedings in Manitoba.

The Agency says that the motion judge’s mischaracterization of theseprovisions is an error in law that should be overturned on appeal. [33] With respect to the remedy proposed by the motion judge and applied by the hearing judge, the Agency argues that it is an error tofind that a child is not in need of protection, but nonetheless to order that she will “remain in parental care, but under apprehension and Agencysupervision pending trial.” The Agency submits that an order for supervision can only be made pursuant to section 38(1) where there has been adetermination that the child is in need of protection. [34] The Agency says that if an access hearing requiring the Agency to justify a continued restriction on the child living with the parents,or a hearing on whether or not the Agency continued to have reasonable and probable grounds to believe the child was in need of protection, were

insufficient to remedy the perceived Charter infringement, then it follows that an expedited trial would be the only means to rectify the infringement. Although the motion judge said that she felt certain that the court would not be able to accommodate an expedited trial, the hearing judge presided over a three-day hearing and the final hearing is scheduled for only four and one-half days. [ 35 ] Finally, the Agency says there was significant and concerning evidence relative to the mental health of both parents.

The Agency submits that the hearing judge’s decision that the child was not in need of protection from her parents was contrary to that evidence and/or the weight of that evidence resulting in palpable and overriding error.

The Parents’ Positions [ 36 ] The father says that the motion judge correctly concluded that the scheduling delay of 13.5 months (between the apprehension of the child and the commencement of the trial) infringed the parents’ right to security of the person and was not in accordance with the principles of fundamental justice. [ 37 ] The father submits that in KLW the Supreme Court determined that the fair and prompt post-apprehension child protection hearing contemplated by section 27(1) and section 29(1) met the requirements of fundamental justice in the context of an apprehension pursuant to section 21(1) .

However, judicial review of the decision to apprehend a child under section 21(1) does not determine whether the child was actually in need of protection at the time of the apprehension; it only decides whether the person apprehending had reasonable and probable grounds to believe that the child was in need of protection. [ 38 ] The father rejects the Agency’s arguments concerning the availability of a motion for access and says that interim access motions are not hearings to determine whether a child is in need of protection. [ 39 ] The mother adds that the parents contested the Agency’s application at every opportunity. [ 40 ] The parents’ positions concerning the remedy granted by the motion judge differ in some respects. [ 41 ] The mother submits that the remedy is proper because it gives the parents a hearing, at an early stage, to determine whether or not the child is in need of protection.

But the mother acknowledges that an interim hearing, if requiring a few days of court time, may be just as problematic to obtain as a hearing under

section 38. She says that a better remedy, and the most ideal solution, would be an expedited hearing as to whether the child is in need of protection. [ 42 ] The father submits that the remedy crafted by the motion judge was so clearly wrong as to amount to an injustice.

In his view, the opportunity for a fair and prompt post-apprehension hearing was lost well before the hearing of the motion before the motion judge on May 19, 2016 and even more so by the time she released her decision on July 4, 2016. [ 43 ] The father submits that the motion judge should have ordered that the child protection hearing proceed without any further delay. In his submission, a declaratory order as a remedy would not be sufficient because it would repeat what the Supreme Court previously said in KLW .

The proper remedy includes not only an expedited hearing of the Agency’s application under section 27(1), but also an order requiring the government to provide sufficient resources within a reasonable time and an order that the Family Division change its rules which, he says, create systemic delays that defeat any chance that the principles of fundamental justice will be respected in these matters. [ 44 ] With respect to the hearing judge’s decision that the child was not in need of protection, the parents submit that the hearing judge did not believe that there was compelling evidence of any concerning behaviour tied to the mental health functioning of the parents since the spring of 2015.

There was no palpable and overriding error with respect to the hearing judge’s consideration, assessment and weighing of the evidence, and the burden to justify a review by this Court of an interim finding is exceptionally high.

Manitoba’s Position [ 45 ] Manitoba’s involvement arose as a result of the notice of constitutional question filed by the mother. [ 46 ] Manitoba’s submission was confined to constitutional matters, and in particular, the issue relating to remedy. [ 47 ] While acknowledging that the appropriate remedy in the present circumstances is a section 24(1) Charter remedy, Manitoba says that the remedy crafted by the motion judge was not appropriate and just within the meaning of that section. [ 48 ] According to Manitoba, there are a range of remedies that might have been considered by the motion judge; that in circumstances of first impression, a declaration is more likely to be the remedy of choice, as it would permit the government to remedy the situation by making its own policy decisions; that the granting of a structural remedy against government at this stage, the first litigation of a constitutional or quasi-constitutional issue, requires an exceptional case; and that in the present case, subsequent events demonstrate that the remedy of an expedited hearing on the merits would likely have been the most effective remedy for all parties. [ 49 ] Manitoba submits that an expedited hearing would have meant an earlier final determination of the issues and would likely have been the most effective use of court resources.

The Intervener’s Position [ 50 ] The intervener takes no position in this proceeding on the constitutional ramification of the delays, the appropriate remedy or whether Manitoba courts correctly interpreted and applied KLW . Instead, the intervener submits that First Nations’ families and children are disproportionately affected by, and suffer unique and specific harm from, delays in post-apprehension hearings.

Remarks of Joyal CJQB [ 51 ] Agency counsel provided the Court with a copy of certain remarks made by Joyal CJQB at a Child Protection Conference held in Winnipeg on December 2, 2016 (online: <http://www.manitobacourts.mb.ca/court-of-queens-bench/about-the-court-of-queens-bench/welcoming-remarks-from- the-chief-justice/chief-justice-speeches/>). The remarks are not evidence but provide useful context. Counsel for all parties confirmed that the panel

could consider these remarks when rendering a decision in this matter. [ 52 ] In his remarks, Joyal CJQB advised that: [T]he Court of Queen’s Bench is intending to present a new model of case flow and court scheduling that will purposefully and resolutely address the issue of delay in Child Protection matters.

The planned improvements - to be administered by the Masters and judges of the Court of Queen’s Bench - involve the fixing of clear and prompt adjudication timelines for children under apprehension. . . . [O]nce a child has been apprehended and taken from his or her family, the Court of Queen’s Bench . . . will not be used as a remediating waiting room for the agencies and parental counsel, hoping to avoid the determinations that judges are morally and constitutionally mandated to make following apprehension. . . .

The Court’s new scheduling model and the Court’s role in adjudicating the issues that it must adjudicate pursuant to the statute, cannot and will not be delayed or obscured by agency program or service issues, or for that matter, by a parent’s rehabilitation schedule. At the end of the day, it is the child who sits in care waiting for both the agency and the parents to act. The current delays are intolerable and unacceptable. . . . I will make available to the Family Division, each week, two different judges of the General Division for a period of one year.

The allocation of those two judges will be solely for the purpose of hearing Child Protection hearings. [ 53 ] In addition to the remarks of Joyal CJQB, I take judicial notice of the Manitoba, Court of Queen’s Bench, Practice Direction: Court of Queen’s Bench of Manitoba (Family Division): Re: Child Protection Proceedings , (10 February 2017), online: <http://www.manitobacourts.mb.ca/site/assets/files/1152/practice_direction_cp_model_final.pdf> (the Practice Direction), which establishes the new scheduling model and timelines implemented in the Family Division to prioritize child protection proceedings.

Analysis and Decision Introduction [ 54 ] At the conclusion of the oral hearing, the panel decided that it would be in the best interests of the child, and would be beneficial to the parties and the Court below, to provide an immediate answer to the issues raised by the Agency (in its appeals) and by the father (in his cross appeal).

The decision to provide an immediate answer was based largely on the fact that a trial to determine whether the child is in need of protection was scheduled to commence on January 30, 2017. [ 55 ] As noted previously, it is my view that: 1. the motion judge did not err when she found the parents’ right to security of the person had been infringed by the delay of the child protection proceedings, contrary to

section 7 of the Charter ; 2. the motion judge did err, however, in her choice of remedy under section 24(1) of the Charter by ordering an interim hearing to determine whether the child continues to be in need of protection pending the trial. An expedited hearing on the merits was the appropriate and just remedy under the circumstances.

Section 7 Charter Infringement [ 56 ] In KLW , the Supreme Court determined that the constitutional validity of a warrantless apprehension under the Act depends upon the availability of a timely post-apprehension hearing (at para 131): [A] fair and prompt post-apprehension hearing is the minimum procedural protection mandated by the principles of fundamental justice in the child protection context. [emphasis added] [ 57 ] The Agency concedes that the parents were deprived of their right to security of the person.

As was the case in KLW , the question here is whether the delay in conducting the post-apprehension hearing can be justified in accordance with the principles of fundamental justice.

[ 58 ] Under

Part III of the Act , the Agency is required to apply for a hearing “to determine whether the child is in need of protection” within 4 juridical days following apprehension (section 27(1)), and the application itself must be returnable within the following 7 juridical days (section 29(1)). A judge, Master or justice of the peace may adjourn the hearing from time to time as may be required (section 29(2)).

The Agency is also required to provide 2 clear days’ notice of the date the application is returnable or is set for hearing, together with particulars (section 30(1)). [ 59 ] In KLW , L’Heureux Dubé J was not prepared to impose a precise constitutional standard for delays in child protection cases, but she did provide guidance as to acceptable delay and delay that would not be tolerated (at paras 125-28): While a two-week delay between the removal of a child and, at a minimum, an interim child protection hearing, would seem to lie at the outside limit of what is constitutionally acceptable, it does not seem advisable in this case to state a precise constitutional standard for delays in the child protection context. . . .

In my view, the amended provisions achieve a constitutional balance between the need for interim measures to protect a child at risk of serious harm, and the requirement for an expedited post-apprehension hearing process. The four-day period to file an application for a child protection hearing and the seven-day period for the return of the application are not unreasonable as maximum delays, given the notification and preparation that must occur prior to the hearing.

Under this legislative scheme, no additional delays should generally be tolerated if the parents are ready for a hearing on the date the application is returnable. The respondent agency gave evidence, however, that parents do not often insist on a hearing immediately following the return date for the application, even when the apprehension is contested . . . This may be because they cannot be found, or because they seek additional time to put their lives in order before having the court determine whether their child is in need of protection.

In such cases, the court’s power to adjourn the hearing , upon application under s. 29(2), provides a necessary measure of flexibility given these realities of the child protection context . [emphasis added] [ 60 ] In the present case, there was no suggestion that the Agency failed to meet its procedural obligations under sections 27(1), 29(1) and 30(1). Nor can it be seriously suggested that the parents failed to assert their rights in a timely fashion.

The parents’ motions filed February 24, 2016 and March 17, 2016, clearly demonstrate that they were seeking a prompt post-apprehension hearing. [ 61 ] The trial dates (January 30-February 3, 2017) were set at the pre-trial conference on March 23, 2016. Counsel for the father objected to the trial dates on the basis that they were “far too late into the future”. The motion judge said that if the Court could have given expedited trial dates, it would have, and that there were not enough resources to accommodate these litigants in a timely fashion.

Agency counsel and counsel for the parents were also of the view that this delay was attributable to institutional and administrative requirements. At the appeal hearing, Agency counsel acknowledged that a delay of ten months, attributable to such factors, was unreasonable. [ 62 ] I agree with the motion judge that the availability of a Watson hearing (to determine whether there are reasonable and probable grounds for the apprehension) does not address the constitutional requirement for a prompt and fair hearing (see para 102).

Further, I do not accept the Agency’s submission that because the parents could apply for access and did not, the delay in the present circumstances was acceptable. The parents were seeking the return of their child, not access, and they were entitled to a prompt hearing to determine whether the child was in need of protection. [ 63 ] The motion judge made no reversible error when she found that the delay in conducting a hearing impacted the parents’

section 7 right to security of the person in a way that was not in accordance with the principles of fundamental justice (see para 102). Whether the delay is measured from the date of apprehension or from the date when the parents were ready to proceed with their motions, the delay was largely, if not solely, attributable to administrative and procedural requirements, and it constituted an unacceptable violation of the parents’ Charter rights ( see KLW at para 136 ).

An Appropriate and Just Remedy [ 64 ] Section 24(1) of the Charter provides that where there has been an infringement or denial of a person’s rights, the court may fashion the remedy which it considers appropriate and just in the circumstances. [ 65 ] The meaning of the words “appropriate and just in the circumstances” was considered by the Supreme Court in Doucet—Boudreau .

The Court observed that (at para 52): Deciding on an appropriate and just remedy in particular circumstances calls on the judge to exercise a discretion based on his or her careful perception of the nature of the right and of the infringement, the facts of the case, and the application of the relevant legal principles. The Court emphasized that it was difficult to imagine language which would invoke a wider and less fettered discretion. [ 66 ] The Court also observed that (at paras 54-59):

While it would be unwise at this point to attempt to define, in detail, the words “appropriate and just” or to draw a rigid distinction between the twoterms, there are some broad considerations that judges should bear in mind when evaluating the appropriateness and justice of a potential remedy. First, an appropriate and just remedy in the circumstances of a Charter claim is one that meaningfully vindicates the rights and freedoms of theclaimants. Naturally, this will take account of the nature of the right that has been violated and the situation of the claimant.

A meaningful remedymust be relevant to the experience of the claimant and must address the circumstances in which the right was infringed or denied. An ineffectiveremedy, or one which was “smothered in procedural delays and difficulties”, is not a meaningful vindication of the right and therefore not appropriateand just (see Dunedin, [R v 974649 Ontario Inc, 2001 SCC 81, [2001] 3 SCR 575] at para. 20, McLachlin C.J. citing Mills, [Mills v The Queen, (SCC), [1986] 1 SCR 863], at p. 882, per Lamer J. (as he then was)).

Second, an appropriate and just remedy must employ means that are legitimate within the framework of our constitutional democracy. As discussedabove, a court ordering a Charter remedy must strive to respect the relationships with and separation of functions among the legislature, theexecutive and the judiciary. This is not to say that there is a bright line separating these functions in all cases. A remedy may be appropriate and justnotwithstanding that it might touch on functions that are principally assigned to the executive.

The essential point is that the courts must not, inmaking orders under s. 24(1), depart unduly or unnecessarily from their role of adjudicating disputes and granting remedies that address the matter ofthose disputes. Third, an appropriate and just remedy is a judicial one which vindicates the right while invoking the function and powers of a court. It will not beappropriate for a court to leap into the kinds of decisions and functions for which its design and expertise are manifestly unsuited.

The capacities andcompetence of courts can be inferred, in part, from the tasks with which they are normally charged and for which they have developed proceduresand precedent. Fourth, an appropriate and just remedy is one that, after ensuring that the right of the claimant is fully vindicated, is also fair to the party againstwhom the order is made. The remedy should not impose substantial hardships that are unrelated to securing the right. Finally, . . . the judicial approach to remedies must remain flexible and responsive to the needs of a given case.

See also Vancouver (City) v Ward, 2010 SCC 27 at paras 19-20, [2010] 2 SCR 28. [67] In the present case, the motion judge concluded that an interim hearing would be the appropriate remedy (at paras 108-112): [T]his cannot be the full hearing but rather, an interim proceeding similar in fashion and structure to that which the court presently offers for a Watsonhearing.

I find that allowing an interim hearing on the issue of continuing need of protection pending trial would satisfy the issues of procedural fairness andfundamental justice, while taking into account what may be competing interests as it relates to the child’s safety. Put more simply, the issue is: Would the child be in need of protection if returned pending trial? The onus of proof, as always, remains on the Agency. If, after an interim hearing, the Agency’s position is accepted, the child is protected by remaining in care pending a full hearing.

If the parents’position is accepted, the child will remain in parental care, but under apprehension and Agency supervision pending trial. In the meantime, thefamily unit remains intact. Further, this process would be similar to procedures available in other provinces. As in other family proceedings, the issues at trial will be considered anew: Was the child in need of protection at apprehension? Does the child attrial continue to be in need of protection? And, if so, what plan is in the child’s best interests?

This hearing, as is the case in Watson hearings, will either be viva voce or a mixture of oral and documentary evidence. The provisions of s. 36 of theAct (Proceedings informal), will be a guiding principle. General principles regarding interim proceedings will apply. The hearing itself will focus,relatively summarily, on the sole interim issue of whether there is a continuing need for protection of the child pending trial or whether the childcould safely be returned to the parents while under apprehension.

The evidence itself should require no more than a day or two of court time, at themost, with a decision rendered promptly thereafter. [emphasis added] [68] While a judge’s decision regarding the applicable remedy is entitled to deference, in my view the one proposed by the motion judgewas not appropriate or just in the circumstances and cannot be allowed to stand. Five reasons underlie my conclusion.

[ 69 ] First, the parents were entitled to a fair and prompt hearing to determine whether the child was truly in need of protection. Instead of vindicating their rights, the decision to hold an interim hearing created further delay, thereby compounding the infringement. [ 70 ] Second, if one accepts, as the motion judge did (at para 107) and as I do, that child protection cases are urgent and are to be given a very high priority by the Family Division ( KLW at para 63 ), an interim hearing was not a proportional response.

In Hryniak v Mauldin , 2014 SCC 7 , [2014] 1 SCR 87 , the Court emphasised that undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes. The principle of proportionality discussed in Hryniak applies no less to a child protection proceeding than to any other family or civil adjudication (see Morrill v Morrill , 2016 MBCA 93 ; and Nafie v Badawy , 2015 ABCA 36 at paras 104 , 164, 599 AR 1). As the Supreme Court noted (at paras 27-28): [T]he conventional trial no longer reflects the modern reality and needs to be re-adjusted.

A proper balance requires simplified and proportionate procedures for adjudication, and impacts the role of counsel and judges. This balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial. This requires a shift in culture. The principle goal remains the same: a fair process that results in a just adjudication of disputes.

A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible — proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure. [ 71 ] In this case, the interim hearing was conducted over three days, and six witnesses were called to testify. It is likely that all of those witnesses will be called again to testify at the next hearing.

When one considers the additional delay, expense and court resources associated with the interim hearing, it cannot be said that the process was proportionate, timely or cost-effective. Moreover, given that the issue decided at the interim hearing (i.e. whether there is a continuing need for protection) is essentially the same issue as will be decided at the next hearing, the interim hearing served little purpose. [ 72 ] Third, to the extent that there is apparently a pressing concern regarding limited judicial resources, the proposed remedy of an interim hearing did nothing to address that concern.

In fact, it had the opposite effect. While finite resources will always be a reality, that reality and its effect on child protection proceedings can to some extent be mitigated with an approach to scheduling that expedites a final hearing and/or resolution (see the new scheduling module found in the Practice Direction). [ 73 ] Fourth, the motion judge directed that if it was determined at the interim hearing that the child was not in need of protection, she would nevertheless remain “under apprehension and Agency supervision pending trial” (at para 110).

Such an order cannot be correct. [ 74 ] As noted in Doucet—Boudreau , “an appropriate and just remedy must employ means that are legitimate within the framework of our constitutional democracy” (at para 56). The effect of the motion judge’s order is that it changes and expands the mandate and obligations of child welfare authorities to intrude on families, without striking down portions of the Act , and is not reconcilable with the role of the court.

It is for the Legislature to define state intervention in the family, subject only to constitutional limits. [ 75 ] Under the Act , state intervention is restricted to circumstances where a child is in need of protection. I agree with Manitoba’s submission that an appropriate and just remedy must be consonant with that principle. If the child is not in need of protection, there is no statutory basis for the apprehension. In addition, a judge can only make an order under section 38(1) where he/she finds that the child is in need of protection.

As the proposed order formed part of the remedy crafted by the motion judge, it was simply not legitimate. [ 76 ] Finally, the motion judge did not need to craft a new remedy given

Part III of the Act and given her ability to order an expedited hearing. [ 77 ] To be fair, the motion judge considered an expedited hearing but said (at para 107): In this case, I feel certain that if the court could have given expedited trial dates in these circumstances it would have, as no case is more urgent than that of a newborn in care. The unfortunate reality is that there are no earlier dates and short of cancelling some other trial (where the parties have waited just as long for their day in court) there are no other dates available.

It is abundantly clear that there are, at present, just not enough resources to accommodate these litigants in timely fashion. I note that Lebel J. called the expedited trial order as having “rather symbolic value” (para. 185). In this case, in order for an expedited trial order to be more than symbolic, another family’s issues would be delayed even more. This does not appear to be a realistic solution.

While prioritizing child protection cases (as the Court of Queen’s Bench is poised to do) may cause delay to other family law matters, parents have a constitutional right to a prompt hearing, and accommodation of that right must take precedence over other family law issues. [ 78 ] Notwithstanding the motion judge’s view that expedited trial dates were not available, there was no evidence to support that view. And I note that interim hearing dates were set September 1, 2016 for a hearing on October 11-12, 2016, and that the hearing was conducted over three days between October 11-13, 2016.

This begs the question why a full hearing on the merits could not have been set within six weeks of March 23, 2016. [ 79 ] The Agency, the parents and Manitoba agree that, for these parents, the appropriate and just remedy was an expedited hearing. [ 80 ] The statutory hearing process contemplated by

Part III of the Act contemplates a streamlined and expeditious hearing. Significantly, proceedings under

Part III may be as informal as a judge or Master may allow. It bears emphasis that there is no requirement in

Part III to conduct a conventional trial.

Section 37 permits the judge or Master: (

a) to compel the attendance of any person to give evidence under oath and to produce documents;

(

b) to accept evidence by affidavit; (

c) to accept as evidence medical and other reports; (

d) to direct an investigation into any matter. [ 81 ] There are other tools that can assist the Court and counsel in a fair and prompt but focussed child protection hearing. Such tools were described by Doyle J in Métis Child Family and Community Services v TSN and REE , 2015 MBQB 127 , 320 ManR (2d) 49 (at paras 103-106 ): Section 50(1) of The Manitoba Evidence Act , C.C.S.M. c. E150, and Queen’s Bench Rules 53.03 and 70.30 ( Court of Queen’s Bench Rules , Man.Reg. 553/88) provide tools to assist counsel and the court [to] conduct proceedings that are proportional, expeditious and cost effective.

Section 50(1) of The Manitoba Evidence Act allows the presentation of evidence of a medical practitioner by filing a signed medical report without requiring the medical practitioner’s attendance at a trial. Queen’s Bench Rule 53.03 allows a report of an expert witness to be admissible in evidence and requires a party to provide written notice if that party requires the expert to be called as a witness.

Section 41 of The Court of Queen’s Bench Act , C.C.S.M. c. C280, identifies a proceeding under The Child and Family Services Act as a family proceeding. Rule 70.30(1) allows affidavit evidence to be presented, stating, “In a family proceeding, the evidence of a witness at a trial may, subject to this rule, be presented by affidavit.” [ 82 ] The Metis Child decision provides another example of a child protection proceeding that was not proportional, timely or cost- effective. In that case, there were five pre-trial conferences followed by a lengthy trial with 10 witnesses over 13 days.

The trial itself consumed 44.5 hours of court time. The child at the centre of the proceedings was five months of age at the time of apprehension and was over 20 months of age when the trial concluded. [ 83 ] In the Metis Child decision, Doyle J concluded that the issue as to whether the child was in need of protection and the terms of any order should have been determined by way of

summary judgment. In his view, the trial process in that case was completely disproportionate to the nature of the dispute between the agency and the parents of the child (see para 142). [ 84 ] There is no evidence on the record of insufficient resources dedicated to child protection matters to ensure their timely adjudication. As explained in Hryniak , the conventional trial no longer reflects the modern reality and needs to be re-adjusted. New practices and procedures are required.

Changes in court culture take time, but it is in the interests of children, parents and society generally that all participants in the justice system critically evaluate old practices and antiquated approaches that occasion unnecessary delay and complexity to child protection proceedings. [ 85 ] The Supreme Court has repeatedly emphasised that section 24(1) of the Charter must be interpreted in a manner that provides a full, effective and meaningful remedy for Charter violations: see , for example, R v 974649 Ontario Inc , 2001 SCC 81 at para 19 , [2001] 3 SCR 575 .

In that decision the Court observed that (at para 24): [T]he task of the court in interpreting s. 24 of the Charter is to achieve a broad, purposive

interpretation that facilitates direct access to appropriate and just Charter remedies under ss. 24(1) and (2) , while respecting the structure and practice of the existing court system and the exclusive role of Parliament and the legislatures in prescribing the jurisdiction of courts and tribunals. [emphasis added] [ 86 ] In my view, an expedited hearing would have been responsive to the needs of the parents (and is responsive to the needs of similarly situated parents), it is consistent with the legislation, fair to the court, entirely consistent with existing court practices and procedures, and it is flexible and responsive to the needs of a given case.

To be clear, when I refer to an “expedited hearing”, I am referring in particular to a

summary and less formal trial or hearing or a

summary judgment proceeding. [ 87 ] While we were encouraged by the parents to provide much broader relief pursuant to section 24(1) of the Charter , I am not inclined to do so. It is clear from Joyal CJQB’s remarks that the Court is acutely aware that current delays in child protection hearings are intolerable and unacceptable. It is equally clear from the Practice Direction that the Court is taking immediate and significant steps to address those delays and that further direction from this Court is not necessary or warranted at this time. [ 88 ] To this I would add the following important observations regarding the hearing process contemplated by

Part III of the Act : 1. It would be surprising if the date of the post-apprehension hearing (i.e. to determine whether the child is in need of protection) was not after the return date contemplated by section 29(1). At the appeal hearing, the father’s counsel conceded that the timing for a hearing on the merits must be flexible and contextual, and that in some circumstances, a hearing two or three months post-apprehension would be acceptable. I agree.

Reasons for additional delay are numerous and include the availability of and the need to instruct counsel, the ability of counsel to respond promptly, and, as noted in KLW and by the motion judge (see para 87 of her reasons), the fact that some parents do not insist on, or even want, a hearing immediately following the return date. Nonetheless, given the potential implications of delay for any child under apprehension, the readiness (or not) of a parent to proceed does not affect the obligation of the Court under the Act to move forward to a speedy trial or resolution. 2.

A delay in scheduling a post-apprehension hearing will not necessarily result in a Charter violation. (Even in KLW , the Court found that, while the six-month delay prior to the protection hearing appeared, on its face, to be highly unreasonable, the delay did not constitute an unacceptable violation of the appellants’ Charter rights.) 3. It is not necessary for parents to file a motion for an order for a post-apprehension hearing. However, on the return date or within a

reasonable period of time thereafter, the parents must advise the Agency and the Court if they intend to contest the apprehension. Beyond theparents’ interests, there are societal and other interests, particularly the child’s best interests, which clearly require an expeditious determination as towhether the child is in need of protection. In Catholic Children’s Aid Society of Metropolitan Toronto v M (C), (SCC), [1994] 2 SCR165, L’Heureux-Dubé J, commenting on the importance of reaching a speedy resolution of matters affecting children, observed (at p 206): The Act requires it and common sense dictates it.

A few months in the life of a child, as compared to that of adults, may acquire great significance. Years go by crystallizing situations that become irreversible. 4. When the parents notify the Court that they intend to contest the apprehension, the Court must arrange for an expedited hearing. As stated inKLW, if the parents are ready for a hearing, no additional delays should generally be tolerated. 5. Parents have the right to challenge an apprehension on the basis that the agency did not have reasonable grounds to believe that the child wasin need of protection.

That right is independent of a parent’s right to a fair and prompt post-apprehension hearing to determine the so-called thresholdquestion, namely whether the child is in need of protection. 6. As noted in KLW at paras 119, 121, 131, and in Michif Child at para 65, the test at a post-apprehension hearing is whether there is seriousharm or risk of serious harm to the child. 7.

In KLW, L’Heureux-Dubé J commented on the social context surrounding child apprehensions, and she observed (at para 72): A proper description of the general context of this case cannot ignore the frequent occurrence of child protection proceedings involving alreadydisadvantaged members of society such as single-parent families, aboriginal families and disabled parents. The submissions made by the intervener in these proceedings underscore the importance of a timely hearing. The vast majority of apprehensions inManitoba involve Indigenous children.

Because of such over-representation, any delay in post-apprehension proceedings has had, and continues tohave, a disproportionate impact on First Nation children, results in First Nation children being raised outside their culture, traditions, language andcommunity, leads to cultural erosion (which leads to assimilation) and results in the over-representation of Indigenous children in the child welfaresystem. These additional and significant impacts cannot be ignored and reinforce the need for prompt post-apprehension hearings.

Summary and Conclusion [89] If a child is apprehended pursuant to section 21(1) and the parents oppose the apprehension, they are entitled to a fair and prompthearing to determine whether the child is in need of protection. The question at that hearing is whether there is serious harm or risk of serious harmto the child. A timely but fair and balanced hearing is essential. There are numerous factors which affect when the hearing is to be conducted but,generally speaking, when the parents are ready to proceed, an expedited hearing must be conducted.

As noted earlier however, the readiness or desireof the parents should not inhibit the required speed with which the matter must move forward to a trial,

summary judgment proceeding or a moreinformal hearing or resolution. [90] Given that the interim hearing was neither appropriate nor just, that the relief proposed by the motion judge and applied by thehearing judge was not an appropriate and just remedy for these parents, and that a trial to determine whether the child is in need of protectioncommenced January 30, 2017, it would be inappropriate to decide whether the hearing judge erred in finding that the child was not in need ofprotection on an interim basis pending trial. [91] For the foregoing reasons, the Agency’s appeals and the father’s cross-appeal are allowed, and paragraph 3.1 of the interim orderpronounced July 4, 2016 and paragraphs 3.1 and 3.2 of the interim order pronounced October 13, 2016 are set aside. [92] In setting aside the operative portions of the interim order pronounced October 13, 2016, I express no view on the reasonableness ofthe hearing judge’s findings as to whether the child was in need of protection.

That matter will be considered afresh and determined at the trial whichcommenced January 30, 2017. [93] The child shall remain apprehended but the parents will continue to have daily access pending the outcome of the trial on the basisdescribed by my colleague, Mainella JA, in his reasons for decision dated December 15, 2016 (2016 MBCA 123), subject to the discretion of the trialjudge. JA I agree: JA I agree: JA APPENDIX A Declaration of Principles

The Legislative Assembly of Manitoba hereby declares that the fundamental principles guiding the provision of services to children and families are: 1. The safety, security and well-being of children and their best interests are fundamental responsibilities of society. . . . 4. Families and children have the right to the least interference with their affairs to the extent compatible with the best interests of children and the responsibilities of society. . . .

Best interests 2(1) The best interests of the child shall be the paramount consideration of the director, an authority, the children’s advocate, an agency and a court in all proceedings under this Act affecting a child, other than proceedings to determine whether a child is in need of protection, and in determining best interests the child’s safety and security shall be the primary considerations. After that, all other relevant matters shall be considered, including (

a) the child’s opportunity to have a parent-child relationship as a wanted and needed member within a family structure; (

b) the mental, emotional, physical and educational needs of the child and the appropriate care or treatment, or both, to meet such needs; (

c) the child’s mental, emotional and physical stage of development; (

d) the child’s sense of continuity and need for permanency with the least possible disruption; (

e) the merits and the risks of any plan proposed by the agency that would be caring for the child compared with the merits and the risks of the child returning to or remaining within the family; (

f) the views and preferences of the child where they can reasonably be ascertained; (

g) the effect upon the child of any delay in the final disposition of the proceedings; and (

h) the child’s cultural, linguistic, racial and religious heritage. Child in need of protection 17(1) For purposes of this Act , a child is in need of protection where the life, health or emotional well-being of the child is endangered by the act or omission of a person. Illustrations of child in need 17(2) Without restricting the generality of subsection (1), a child is in need of protection where the child (

a) is without adequate care, supervision or control; (

b) is in the care, custody, control or charge of a person

(

i) who is unable or unwilling to provide adequate care, supervision or control of the child, or (ii) whose conduct endangers or might endanger the life, health or emotional well-being of the child, or (iii) who neglects or refuses to provide or obtain proper medical or other remedial care or treatment necessary for the health or well-being of the child or who refuses to permit such care or treatment to be provided to the child when the care or treatment is recommended by a duly qualified medical practitioner; (

c) is abused or is in danger of being abused, including where the child is likely to suffer harm or injury due to child pornography; (

d) is beyond the control of a person who has the care, custody, control or charge of the child; (

e) is likely to suffer harm or injury due to the behaviour, condition, domestic environment or associations of the child or of a person having care, custody, control or charge of the child; (

f) is subjected to aggression or sexual harassment that endangers the life, health or emotional well-being of the child; (

g) being under the age of 12 years, is left unattended and without reasonable provision being made for the supervision and safety of the child; or (

h) is the subject, or is about to become the subject, of an unlawful adoption under The Adoption Act or of a sale under

section 84. Apprehension of a child in need of protection 21(1) The director, a representative of an agency or a peace officer who on reasonable and probable grounds believes that a child is in need of protection, may apprehend the child without a warrant and take the child to a place of safety where the child may be detained for examination and temporary care and be dealt with in accordance with the provisions of this Part. Care while under apprehension 25(1) Where a child has been apprehended, an agency (

a) is responsible for the child’s care, maintenance, education and well-being; (

b) may authorize a medical examination of the child where the consent of a parent or guardian would otherwise be required; and (

c) may authorize the provision of medical or dental treatment for the child if (

i) the treatment is recommended by a duly qualified medical practitioner or dentist, (ii) the consent of a parent or guardian of the child would otherwise be required, and (iii) no parent or guardian of the child is available to consent to the treatment. Leaving child pending protection hearing 26(1) The director, a representative of an agency or a peace officer who on reasonable and probable grounds believes that a child is in need of protection, may leave the child with or return the child to the person in whose charge the child is and notify that person that an application respecting

the child will be made to court pursuant to the provisions of this Part. Deemed apprehension 26(3) Notwithstanding the fact that the child has been left with or returned to the person in whose charge the child was under subsection (1) the child shall solely for the purposes of a hearing under subsection 27(1) be deemed to be under apprehension.

Application to court for protection hearing 27(1) The agency shall, within 4 juridical days after the day of apprehension or within such further period as a judge, master or justice of the peace on application may allow, make an application for a hearing to determine whether the child is in need of protection. Access pending protection hearing 27(2) The agency shall at the time of making the application under subsection (1) state at what times, if any, and on what conditions it will allow access by the parents or guardian to the child pending the hearing.

Hearing re access by parents or guardian 27(3) Where the parents or guardian do not consent to the access provided by the agency, they may make application to court for a hearing to determine what access provisions are appropriate in the circumstances. Burden of proof 27(4) The agency shall bear the burden of proof at the hearing under subsection (3) that any limitation of access is reasonable.

Variation of order 27(5) Either party may make an application for a variation of an order under subsection (3) at any time on the grounds that there has been a change in circumstances since the order was granted justifying a change in access or that the access permitted has been shown to be in practice contrary to the best interests of the child.

Date when application returnable 29(1) An application under subsection 27(1) shall be returnable within seven juridical days of being filed, or, where there is no sitting of the court in which the application was filed in that period, on the date of the next sitting of the court, or within such further period as a judge, master or justice of the peace may, on application, allow. 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.

Notice of hearing 30(1) The agency shall give two clear days notice of the date the application under subsection 27(1) is returnable or is set for hearing, together with particulars of the grounds that are alleged to justify a finding that the child is in need of protection, to (

a) the parents; (

b) the guardians; (

c) the child where the child is 12 years of age or more; (

d) the person in whose home the child was living at the time of apprehension or immediately prior to placement in hospital or other place of safety; and

(

e) the agency serving the appropriate Indian band if the agency making the application has reason to believe that the child is registered as an Indian under the Indian Act (Canada); and no further notice is required to be given by the agency thereafter. Notice regarding filing of financial information 30(1.1) A notice to a parent or guardian under subsection (1) shall also notify the parent or guardian of the requirements of subsection (1.2).

Filing and service of financial information 30(1.2) A parent or guardian who is given notice under subsection (1) shall, within 10 days of the giving of notice to the parent or guardian, file with the court and serve on the agency the financial information prescribed by the regulations, and, on application without notice, a judge or master may order the parent or guardian to file and serve such information.

Penalty for not filing financial information 30(1.3) Where a parent or guardian fails to comply with subsection (1.2), a judge may, in addition to or in substitution for any other order, on application by the agency order that the parent or guardian pay to the agency an amount not exceeding $5,000. and any such order may be enforced as a judgment of the court. Reduction in time of notice and waiver of notice 30(2) Notwithstanding subsection (1), a person entitled to receive notice under that subsection may agree (

a) to a reduction in the number of days within which notice shall be given; or (

b) to a complete waiver of notice at any time up to and including the hearing of the application notwithstanding that the hearing may be in progress. Queen’s Bench rules re: discovery not to apply 32(3) The rules of the Court of Queen's Bench regarding examination for discovery and examination of documents do not apply to a hearing under this Part. 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 aside because of any lack of formality at the hearing or for any other technical reason not affecting the merits of the case.

Power of court 37(1) A judge or master may for the purposes of a hearing under this Part (

a) compel on his or her own motion the attendance of any person and require that person to give evidence under oath and to produce such documents and things as may be required; (

b) accept evidence by affidavit; (

c) accept as evidence a report completed by a duly qualified medical practitioner, dentist, psychologist or registered social worker as evidence without proof of the signature or authority of the person signing it. Court may direct investigation 37(2) In a proceeding under this Part, and upon being satisfied that it is necessary in order to determine the best interests of the child, a judge or master may direct an investigation into any matter by a person who has had no previous connection with the parties to the proceeding or to whom

each party consents. Orders of the judge 38(1) Upon the completion of a hearing under this Part, a judge who finds that a child is in need of protection shall order (

a) that the child be returned to the parents or guardian under the supervision of an agency and subject to the conditions and for the period the judge considers necessary; or (

b) that the child be placed with such other person the judge considers best able to care for the child with or without transfer of guardianship and subject to the conditions and for the period the judge considers necessary; or (

c) that the agency be appointed the temporary guardian of a child under 5 years of age at the date of apprehension for a period not exceeding 6 months; or (

d) that the agency be appointed the temporary guardian of a child 5 years of age or older and under 12 years of age at the date of apprehension for a period not exceeding 12 months; or (

e) that the agency be appointed the temporary guardian of a child of 12 years of age or older at the date of apprehension for a period not exceeding 24 months; or (

f) that the agency be appointed the permanent guardian of the child. 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. 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 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.