The Director of Child and Family Services Date:, 2018 MBCA 35

Citation: The Director of Child and Family Services Date: 20180404 v GMH, 2018 MBCA 35 Docket: AH17-30-08953 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice William J. Burnett Madam Justice Jennifer A. Pfuetzner BETWEEN : the director of child and family ) G. M. H. services ) on his own behalf ) (Petitioner) Respondent ) T. L. Grant ) for the Director of Child and - and - ) Family Services ) g. M. h. ) No appearance ) for R. E. M. (Respondent) Appellant ) ) Appeal heard and - and - ) Decision pronounced: ) March 2, 2018 R. E.

M. ) ) Written reasons: (Respondent) ) April 4, 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) . bURNETT and pfuetzner JJA [ 1 ] This appeal raises the issue of whether the trial judge, on his own motion, properly adjourned a child protection hearing. [ 2 ] At the hearing, we allowed the appeal, set aside the trial judge’s order and ordered an expedited trial with reasons to follow.

These are those reasons. [ 3 ] The child, SNH, was born on August 1, 2015. The parents separated shortly after SNH’s birth and shared custody of her. On August 30, 2016, the petitioner (the agency) apprehended SNH from the care of the respondent father, GMH (the father) and placed her in the care of the respondent mother, REM (the mother). In February 2017, the mother removed SNH from the jurisdiction without the knowledge of the agency or the father and while there was a non-removal order in place. SNH was located and placed in an agency foster home, where she remains, one year later.

It is significant that no finding has been made that SNH is in need of protection. [ 4 ] The agency is seeking a six-month temporary order of guardianship. The mother has consented to the order and to a parental capacity assessment. [ 5 ] Several pre-trial conferences have been held. The pre-trial judge ordered that affidavit evidence of witnesses be served on the opposite party and that the witnesses attend the trial for cross-examination. [ 6 ] This matter had been set for trial and adjourned on three separate occasions.

Both the father and the agency were ready to proceed on September 11, 2017 and October 30, 2017. When the trial commenced on October 30, 2017, the trial judge had volumes of material filed by consent. He had evidence from all major witnesses by way of affidavit or in a written report.

[ 7 ] At the hearing, all parties were prepared to proceed with viva voce evidence.

During his opening statement, counsel for the agency said “the agency has now been seeking a six-month temporary order of guardianship for the purpose of completing a parental capacity assessment by a psychologist.” [ 8 ] After clarifying that the agency was seeking an assessment on both parents, the trial judge suggested that “it would have been helpful for the court to have the assessment before we do the trial” and stated, “I don’t see why I can’t order one right now.” [ 9 ] The trial judge invited submissions on whether he should adjourn the hearing and order a parental capacity assessment.

Neither party had requested that he order the assessment at that stage and the adjournment was vigorously opposed by counsel for the father who argued “to adjourn this trial again is putting this child in foster care for over two years. She was one when she went into care.

I mean, that is absolutely outrageous in every sense of the word.” [ 10 ] The trial judge gave brief reasons for ordering a parental capacity assessment pu rsuant to section 37(2) of The Child and Family Services Act , CCSM c C80 (the Act ) and adjourning the hearing pending receipt of the assessment, st ating that he is ordering the assessment “in order to help me determine” the best interests of SNH. [ 11 ] The issue is whether, in the circumstances of this case, the trial judge erred in his decision to order a parental capacity assessment and adjourn the hearing. [ 12 ] The standard of review for discretionary decisions, such as the decision to order a parental capacity assessment, is well known.

This Court will not interfere unless the judge has made an error in principle or the decision is so clearly wrong as to amount to an injustice (see Perth Services Ltd v Quinton et al , 2009 MBCA 81 at paras 24-28 ).

The standard of review for a decision on an adjournment is set out in this Court’s decision in The Director of Child and Family Services v JG and KB , 2017 MBCA 27 (at para 7 ): “ An adjournment is a discretionary decision that cannot lightly be interfered with on appeal absent an error that occasions a decision that is unreasonable, clearly wrong or unjust”. [ 13 ] The hearing adjourned by the trial judge was meant to be the fair and prompt post-apprehension hearing described in Winnipeg Child and Family Services v KLW , 2000 SCC 48 , and by this Court in Manitoba (Director of Child and Family Services) v HH and CG , 2017 MBCA 33 , as the “minimum procedural protection mandated by the principles of fundamental justice” ( HH and CG at para 2 ). [ 14 ] As was the case in KLW and in HH and CG , the fundamental question is whether the delay in conducting the post- apprehension hearing can be justified in accordance with the principles of fundamental justice (see HH and CG at para 57 ).

Absent extraordinary circumstances, child protection matters are to be heard expeditiously. A timely decision is essential and, while the best interests of the child are extremely important, they are not the paramount factor. Section 2(1) of the Act states, “ The best interests of the child shall be the paramount consideration of . . . a court in all proceedings under this Act affecting a child, other than proceedings to determine whether a child is in need of protection” .

The issue before the trial judge is not the best interests of SNH, but rather “to determine whether the child is in need of protection” ( section 27(1) of the Act ). [ 15 ] Our colleague refers to para 128 of KLW and observes that the immediacy of a hearing might take second place to the unique factors in a particular case. However, the rule articulated in KLW , and repeated in HH and CG is that, when the parents are ready to proceed, an expedited hearing must be conducted (see HH and CG at paras 88 , point 4, 89).

The Supreme Court of Canada’s acknowledgment that the court’s power to adjourn provides a necessary measure of flexibility was specifically concerned with circumstances where the parents do not insist on an immediate hearing ( KLW at para 128 ): 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: see also Ontario Panel Report [Ontario Panel of Experts on Child Protection, Protecting Vulnerable Children (1998)], at p. 41. 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. [ 16 ] In HH and CG , this Court emphasized that given the implications of delay for any child under apprehension, the readiness of a parent to proceed does not affect a judge’s obligation under the Act to move forward to a speedy trial or resolution (see para 88, point 1). [ 17 ] In KLW , the Supreme Court of Canada expressed the view that a two-week delay between the removal of a child and an interim protection hearing would lie “at the outside limit of what is constitutionally acceptable” (at para 125).

And in HH and CG , this Court accepted that, in some circumstances, a hearing two or three months post-apprehension might be acceptable (see para 88, point 1). However, any delay beyond that timeframe will almost certainly result in a violation of rights under the Canadian Charter of Rights and Freedoms (the Charter ); it is only in rare or exceptional circumstances where a longer delay will be tolerated.

It follows that there will be circumstances where, as here, the judge must make a decision without the assistance of expert opinion. [ 18 ] The circumstances of this case relevant to whether the adjournment was unjust are: SNH had been apprehended from her father without a warrant 14 months prior to the date the trial judge adjourned the hearing; the agency was seeking a six-month temporary order; the trial judge had extensive affidavit material before him and witnesses were present to provide further oral evidence; both the agency and the father were ready to proceed; and neither party was seeking an adjournment. [ 19 ] The trial judge’s decision to order a parental capacity assessment necessitated an adjournment of the hearing, which, in

the circumstances, was unjust and was not a proportionate response to the trial judge’s view that a parental capacity assessment would“help” him (see HH and CG at para 70). [20] This is not a question of expediency for expediency’s sake. Delay in child protection proceedings has significantimplications to the child, the child’s parents, the parent-child relationship and society generally.

While we accept that the issues at stakeare too serious to promote expediency for its own sake, it is clearly unacceptable to countenance delay in circumstances where timelydecisions are essential. [21] In the circumstances of this case, the trial judge’s decision to order an assessment created unacceptable delay, therebycompounding the infringement of the father’s rights under

section 7 of the Charter (see HH and CG at para 69) and was contrary to theprinciples of fundamental justice (see HH and CG at paras 3-4). In our view, the trial judge should have proceeded without a parentalcapacity assessment. [22] At the conclusion of the appeal, the father raised the issue as to whether the trial should proceed before a differentjudge. The trial judge is seized of the trial. If the father wishes to pursue this issue, he will need to bring a motion for recusal before thetrial judge. [23] For the foregoing reasons, the appeal was allowed.

The trial judge’s order is set aside and an expedited trial is ordered. In the circumstances, there will be no order as to costs. JA JA STEEL JA (concurring): [24] I have read the majority judgment and I agree with the result. However, I think it is important to add some additionalcomments. [25] The apprehension of a child and an application for an order of guardianship by a child welfare authority triggers theparents’ rights under

section 7 of the Canadian Charter of Rights and Freedoms (the Charter) to security of the person (see NewBrunswick (Minister of Health and Community Services) v G(J), (SCC), [1999] 3 SCR 46; and Winnipeg Child andFamily Services v KLW, 2000 SCC 48). In the KLW case, the Supreme Court of Canada found that the disruption to the parent-childrelationship caused by the apprehension required a fair and prompt post-apprehension hearing so as not to violate these rights.

This Courthas held that a hearing to determine whether there were reasonable and probable grounds for the initial apprehension (the Watsonhearing; see Manitoba (Director of Child and Family Services) v HH and CG, 2017 MBCA 33) is not sufficient to satisfy the rights of theparents. Generally, when the parents are ready to proceed, there must be a prompt hearing to determine whether the child is in need ofcontinuing protection.

The question becomes what is a prompt and fair hearing? [26] This is child protection legislation and the parents’ rights must be balanced together with the children’s right to life andhealth. The protection of a child’s right to life and to health is a basic tenet of our legal system.

It is the state’s responsibility to protectchildren. [27] Moreover, in this particularly difficult field, most cases are complex and need a detailed consideration of the factualcontext of apprehension, the actions of the parents, the agency’s post-apprehension actions, the weighing of the efforts of the parents toimprove their situation and a consideration of the plans proposed by the agency and the parents. [28] Thus, while generally the hearing should take place when the parents are ready to proceed, there are a variety of factorsthat must be balanced in order to determine whether, in any particular case, the length of time between the apprehension and the hearingviolated the parents’

section 7 Charter rights to security of the person in a way that was not in accordance with the principles offundamental justice. [29] So, what factors should one consider when determining whether any particular case falls outside of the category of“generally”? When is procedural fairness impacted by the delay in accessing a hearing on the merits? [30] In the KLW case, the Court acknowledged that, the immediacy of a hearing might take second place to the uniquefactors in a particular case.

It stated that, “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” (at para 128). As well, our Court hasindicated that timing for a hearing on the merits must be flexible and contextual (see HH and CG). [31] In this particular case, the trial judge adjourned the hearing for the purpose of ordering an independent third-partyinvestigation pursuant to section 37(2) of The Child and Family Services Act, CCSM c C80 (the Act).

While the agency was requesting asix-month temporary order of guardianship for the purpose of conducting a parental capacity assessment, the trial judge felt it was more

appropriate to adjourn the hearing, have the parental capacity assessment done and then have the hearing to determine whether to order the six-month temporary order. [ 32 ] It is clear that the trial judge had the jurisdiction to order an independent third-party investigation pursuant to section 37(2) of the Act and to order an adjournment of the hearing for the completion of that investigation under

section 29 of the Act . Those sections state that: 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. . . .

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. [ 33 ] The decision to order a parental capacity assessment and to adjourn the hearing until it was completed was a discretionary one.

In the Director of Child and Family Services (Man) v JA , 2006 MBCA 44 , the Court stated that, “Provided that a judge exercises this discretion judicially and does not err in principle, a court of appeal should not interfere” (at para 21). Also see, more recently on this topic, The Director of Child and Family Services v JG and KB , 2017 MBCA 27 . [ 34 ] Deference is especially important in family law where the emotional and social dynamics intertwine with the law and facts in a continually changing and complex manner.

The trial judge can often appreciate nuances that disappear in the reading of a transcript by an appellate court. The trial judge has especially wide discretion in the conduct of child protection proceedings. As well, the decision to adjourn a hearing is perhaps the most discretionary decision a trial judge can have and should not be interfered with lightly. [ 35 ] However, discretion must be exercised in a judicious and reasoned manner, weighing and balancing the law against the facts of the particular case.

In this case, I agree with my colleagues that the trial judge did not exercise his discretion in a judicious manner. [ 36 ] Our Court has indicated recently that the delays that presently exist in the Manitoba child protection system are unacceptable and every attempt must be made to eliminate them (see HH and CG ). That does not mean emphasizing speed at the expense of the child. The issues at stake are too serious to promote expediency for its own sake. It does mean proportionality.

Proportionality applies to child protection proceedings as it does to every other area of the law (see HH and CG at para 70 ). [ 37 ] So, weighing the adjournment against the benefit of the parental capacity assessment—was it necessary in this particular case despite the fact that the father wished to proceed? [ 38 ] In fact, the jurisprudence provides a roadmap to help a judge determine whether a delay in a case in order to obtain expert evidence is appropriate. The test is whether such expert opinion is necessary to assist the court in determining the issues before it.

It is not sufficient if the expert opinion would be merely helpful or relevant. [ 39 ] In the case of Manitoba (Director of Child and Family Services) v HH and CG , 2016 MBQB 191 , a similar issue was raised. The child was apprehended at birth on December 18, 2015. The agency was seeking a six-month temporary order of guardianship.

In February 2016, it brought a motion for an order directing that a psychological parenting capacity assessment be prepared. [ 40 ] In refusing the order, Doyle J noted that the report must be necessary to allow the Court to determine the best interests of the child (see section 37(2) of the Act ).

It is necessary if the expert opinion is likely to provide information that pertains to the welfare of the child that would not be discoverable otherwise and that only an expert can provide. [ 41 ] In that case, the Court refused to order the assessment because it held that there was already considerable evidence available concerning the cognitive functioning and mental health of the parents, as well as evidence in regard to programming taken and supports that were available. [ 42 ] I acknowledge that in this case, there were no reports relating to the psychological and cognitive functioning of the parents.

However, to assist the trial judge in making a decision with regard to this temporary order and before hearing from any of the

witnesses’ viva voce evidence, the trial judge had volumes of material before him. That evidence included six affidavits of social workers, the social workers’ notes, an affidavit of the support worker, the findings of the motion judge on the Watson hearing dated May 2, 2017, the reports of three separate doctors, the records from the Winnipeg Regional Health Authority and the Child Protection Centre, 22 separate police incident reports and the affidavit of the father himself and a support person (a friend).

In fact, the agency acknowledges that, with the consent of the parties, the trial judge had evidence from all major witnesses by way of affidavit or within a written report prior to the hearing. [ 43 ] What must be remembered is that the younger the child, the more significant the passage of time. The time limits for temporary orders in the Act have been imposed for a purpose. I note that SNH is very young (born August 1, 2015) and was apprehended by the agency on August 30, 2016 from the care of the father and placed in the care of her mother.

In February 2017, the mother removed SNH from the jurisdiction without the consent or knowledge of the agency or the father and while there was a non- removal order in place. SNH was then placed in an agency foster home, where she remains. [ 44 ] The father requested a number of adjournments and went through a number of lawyers. As a result of the numerous changes to his counsel, the father was not prepared to proceed to a hearing until September 2017.

By the time the hearing commenced in September 2017, the father had retained his seventh lawyer in the proceedings and had yet to meet with the assigned social worker. The father’s Watson application was heard and dismissed. An administrative error led to the necessity to adjourn the hearing on September 11, 2017. [ 45 ] However, at the hearing on October 30, 2017, both the father and the agency were prepared to proceed with viva voce evidence. As part of the six-month temporary order of guardianship, the agency was requesting that both parents participate in a parental capacity assessment.

The mother had consented to the six-month temporary order and was consenting to the assessment, which had already been started with respect to her. [ 46 ] Given the above factors, and especially the fact that this was an application for a six-month temporary order of a very young child whose custody has been up in the air for over 18 months, the decision to adjourn the temporary hearing pending receipt of the assessment rather than ordering the assessment as part of the temporary order, was an unnecessary delay and cannot be justified in accordance with the principles of fundamental justice. [ 47 ] I agree that an expedited hearing is necessary. ______________________________ JA