The Director of Child and Family Date:, 2018 MBCA 19

Citation: The Director of Child and Family Date: 20180226 Services v PSK, 2018 MBCA 19 Docket: AH17-30-08882 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice William J. Burnett Madam Justice Jennifer A. Pfuetzner BETWEEN : THE DIRECTOR OF CHILD AND FAMILY ) C. L. Dunn SERVICES ) for P. S. K. ) (Petitioner) Respondent ) ) No appearance - and - ) for J. A. P. ) P. S. K. ) ) K. J. Janovcik (Respondent) Appellant ) for the Director of Child and ) Family Services - and - ) ) J. A.

P. ) Appeal heard and ) Decision pronounced: (Respondent) ) February 26, 2018 NOTICE OF RESTRICTION ON PUBLICATION: N o 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) . pfuetzner JA (for the Court): [ 1 ] The respondent father, PSK (the father), appeals a permanent order of guardianship of his son, DSK, granted to the petitioner. At the appeal hearing, we dismissed the appeal with brief reasons to follow.

These are those reasons. [ 2 ] At the date of the permanent order, DSK was aged six and had been in the care of the petitioner under two consent temporary orders since his apprehension nearly three years prior. At the time of the trial, DSK had been in a stable placement for nine months and the foster parents wish to adopt him. [ 3 ] There was no real issue at trial that DSK was in need of protection from the respondent mother, JAP (the mother). Although the mother had counsel at trial and the father did not, the parents put forward a joint plan to parent DSK together with the father assuming primary care of DSK.

The question for the trial judge was whether it was in the best interests of DSK for the Court to make a permanent order of guardianship or to order that he be returned to the parents’ care under an order of supervision under section 38(1) (

a) of The Child and Family Services Act , CCSM c C80 (the Act ). [ 4 ] The trial judge found that DSK was in need of protection from the mother and the father at the time of trial due to ongoing alcohol and substance abuse and the mother’s physical and mental-health issues, combined with the dynamics of the parents’ relationship in which the father always deferred to the mother. The mother had a hostile relationship with the petitioner’s workers and the trial judge was of the view that the parents would not co-operate with the petitioner if DSK were returned to them under an order of supervision.

The trial judge found that it was in DSK’s best interests to make a permanent order of guardianship. [ 5 ] The father raised three main issues. First, he says that the trial judge failed to provide reasons for her finding that DSK was in need of protection from him. Second, the father raised a new argument for the first time at the appeal hearing—that the trial judge misunderstood the father’s evidence that he had an alternate parenting plan that involved him parenting DSK on his own, apart from the mother.

As a self-represented litigant, the father says that the trial judge had a duty toward him to explore this plan further. Finally, the father argues in his factum that the trial judge failed to consider section 38(1) (

b) of the Act which would have permitted the

Court to place DSK with the father as a non-custodial parent. The provisions of section 38(1) of the Act are set out in the Appendix tothese reasons. [6] The standard of appellate review of a permanent order of guardianship is well known.

An appellate court should notinterfere with a permanent order unless there has been an error in principle, a misapprehension of the evidence or a manifest failure togive due consideration to the evidence (see Michif Child and Family Services v VEMB et al, 2016 MBCA 13 at para 16). [7] The trial judge gave comprehensive reasons for her decision that adequately explained why she found DSK to be inneed of protection from both parents. As noted, it was conceded that DSK was in need of protection from the mother.

The trial judgewas clearly concerned about the father’s past alcohol use and that he is unable to effectively assert himself against the mother to ensurethat DSK’s needs are not superseded by the mother’s. There was ample evidence to support this. [8] We are of the view that there was no evidentiary basis from which the trial judge should have inferred that the fatherhad formulated, or was attempting to put forward, an alternate parenting plan. The trial judge questioned the father as to why he was notrepresented by a lawyer and he confirmed that he was content to proceed without counsel.

The trial judge also asked the father questionsin order to explore his parenting plan. He stated his confidence in the mother’s ability to care for DSK. In cross-examination, heconfirmed that his parenting plan for DSK was to continue to live together with the mother. The passages in the father’s evidencepointed to by counsel simply do not support an inference that the father had an alternate parenting plan that did not involve him and DSKresiding with the mother.

Accordingly, the possibility of DSK being returned to the sole care of the father under an order of supervisionwas never raised, either directly or by inference, with the trial judge. [9] As for the father’s final argument, whether an order could have been made placing DSK with the father as a “non-custodial” parent under section 38(1)(

b) of the Act, such an order is not available in the circumstances of this case. Although there issupport for the notion that a non-custodial parent falls under the definition of “such other person” in that

section (see Winnipeg Child andFamily Services v D (KA) (1995), (MB CA), 125 DLR (4th) 255 at 262 (CA)), the father is not in fact a non-custodial parent. The father was residing with the mother at the time of DSK’s birth and they raised him together for over two years. The parents separated temporarily, and it was during the time of separation that DSK was apprehended from the mother. There was noorder for custody of DSK granted to either parent during the period of separation.

The father is a joint custodial parent of DSK pursuantto section 39(1) of The Family Maintenance Act, CCSM c F20 (the text of which is set out in the Appendix to these reasons). This differsfrom the circumstances in D (KA) where the mother had an order of sole custody at the time of apprehension. [10] We are not persuaded that there is any basis for appellate intervention in this case. [11] For these reasons, the appeal was dismissed.

JA JA JA APPENDIX The Child and Family Services Act Provisions 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 theperiod 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 ofguardianship 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. The Family Maintenance Act Provisions Joint rights of parents in children 39(1 ) Subject to subsection (2), rights of parents in the custody and control of their children are joint but where the parents have never cohabited after the birth of the child, the parent with whom the child resides has sole custody and control of the child.