Dakota Ojibway Child and Family Date:, 2019 MBCA 91

Citation: Dakota Ojibway Child and Family Date: 20190906 Services et al v MBH, 2019 MBCA 91 Docket: AH18-30-09163 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice William J. Burnett Madam Justice Karen I. Simonsen BETWEEN : DAKOTA OJIBWAY CHILD AND FAMILY ) SERVICES ) M. L. Mitchell ) for the Appellant (Petitioner) Respondent ) ) K. J. Janovcik and - and - ) T. L. Grant ) for the Respondent M. B. H. ) ) D. L.

Carlson (Respondent) Appellant ) for the Intervener ) - and - ) Appeal heard: ) May 6, 2019 THE ATTORNEY GENERAL OF ) MANITOBA ) Judgment delivered: ) September 6, 2019 Intervener ) 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 Dakota Ojibway Child and Family Services v MBH et al , 2018 MBQB 142 BURNETT JA Introduction [ 1 ] The respondent appeals an order granting

summary judgment and appointing the petitioner (the Agency) as the permanent guardian of her infant son (G.H.). [ 2 ] The important legal issue raised in this appeal is whether

summary judgment is appropriate in child protection proceedings and, in particular, where an agency is seeking a permanent order of guardianship. [ 3 ] This issue was also raised in the companion appeal, released concurrently, in Child and Family Services of Western Manitoba et al v LAN , 2019 MBCA 92 . [ 4 ]

Summary judgment is appropriate in some, but not all, child protection proceedings, including proceedings for a permanent order of guardianship. A contextual analysis is required. The question is whether a

summary judgment motion is a fair and just method of adjudication in the circumstances of the particular case. [ 5 ]

Summary judgment was appropriate in the circumstances of this case and, for the reasons which follow, the appeal is dismissed.

Legislation [ 6 ] The Canadian Charter of Rights and Freedoms (the Charter ), sections 1 , 7 ; The Child and Family Services Act , CCSM c C80 (the CFSA ), sections 2(1) , 32(3) , 36 - 38(1) ; and the Manitoba, Court of Queen’s Bench Rules , Man Reg 553/88 (the Queen’s Bench Rules ), rr 1.04(1.1), 20, 39.01(4), 70.02.1(2) and 70.18.1, are reproduced in the appendix to this decision. Background [ 7 ] The respondent is the mother of five children. The youngest child, G.H., is the subject of these proceedings.

Her four older children are permanent wards of the Agency and another child welfare agency. [ 8 ] G.H. was apprehended at birth (December 31, 2017) and has been in the care of the Agency since that time. [ 9 ] On January 4, 2018, the Agency applied for a temporary order of guardianship. The respondent’s circumstances changed, and the Agency revised its initial plan and sought an order of permanent guardianship. [ 10 ] On March 22, 2018, an intake hearing (the intake hearing) was conducted. The intake judge, on her own initiative, directed that the matter be set down for a one-day

summary judgment hearing. [ 11 ] Prior to the intake hearing, counsel for the Agency and counsel for the respondent each filed a written brief (the intake briefs). In its intake brief, the Agency described the reasons for G.H.’s apprehension, its concerns, the reasons it was seeking a permanent order and its plan. A 13-page

summary outlining the respondent’s history with the Agency and the events which had transpired subsequent to G.H.’s birth was attached as a

schedule to the Agency’s intake brief. [ 12 ] In her intake brief, the respondent said that she did not dispute that she had addictions issues and required treatment; that she did not dispute her long history and the concerns raised by the Agency; that she was committed to making changes to address her addictions to allow her to become an effective parent; and that her plan was to enter a residential program to address the Agency’s concerns and to demonstrate (during a six-month temporary order) her “commitment to change and stability to facilitate her as a healthy parent.” [ 13 ] The parties subsequently consented to orders requiring the production of records by the RCMP and the Winnipeg Police Service. [ 14 ] The Agency filed a notice of motion seeking

summary judgment and an affidavit from an Agency worker describing the respondent’s involvement with the Agency. Attached to that affidavit was a seven-page

summary. [ 15 ] The Agency also filed an affidavit severally affirmed by a child protection specialist, a psychologist and a pediatrician employed by the Child Protection Centre. A copy of their consultation report was attached to the affidavit. [ 16 ] The

summary judgment motion was initially set down for hearing on May 25, 2018.

The hearing was adjourned at the respondent’s request due to the late filing of the Agency’s materials. [ 17 ] In her first affidavit affirmed May 25, 2018, the respondent deposed that she had some physical problems after G.H. was born; that she believed she could address her problems in the next six months; that she needed to get her health under control; that she planned to attend a treatment program as soon as she could; that she would find a place to live; and that she would try to get a support worker. [ 18 ] Significantly, while the respondent disagreed with the suggestion that she left her children with inappropriate caregivers and with the reason for which she had been “kicked out” of the Behavioural Health Foundation treatment program, she did not dispute the remaining facts in the Agency worker’s affidavit. [ 19 ] In a subsequent affidavit affirmed August 14, 2018 (accepted as new evidence after the oral hearing on June 25, 2018), the respondent deposed that she had not used drugs since July 2, 2018; that she had been in the psychiatric unit at the Victoria General Hospital since July 3, 2018; that she was currently being held involuntarily and would appear before the Mental Health Review Board on August 20, 2018; and that she was working with her doctors and hoped to be released from the hospital at the end of August 2018.

She also said that she had been accepted into and, when released from the hospital, planned to attend a residential treatment program. [ 20 ] Prior to the

summary judgment hearing, the respondent filed a notice of constitutional question challenging the application of the

summary judgment rules (see r 20 of the Queen’s Bench Rules ) to child protection proceedings under

Part III of the CFSA . In that notice, the respondent said that the application of the

summary judgment process in child protection proceedings violates

section 7 of the Charter and cannot be justified under

section 1 ; that she was entitled to a “prompt and fair post apprehension hearing” under

section 38 of the CFSA because of the warrantless apprehension of G.H. (see Winnipeg Child and Family Services v KLW , 2000 SCC 48 ; and this Court’s decision in Manitoba (Director of Child and Family Services) v HH and CG , 2017 MBCA 33 ( HH )); and that her Charter right to that hearing would be denied if

summary judgment was permitted. [ 21 ] The respondent later filed an identical notice of constitutional question in this Court. [ 22 ] Extensive motion briefs were filed by the Agency, the respondent and the intervener (Manitoba). [ 23 ] The

summary judgment motion was heard on June 25, 2018. At the hearing, the respondent argued that the use of

summary judgment proceedings in a child protection matter constituted a breach of her

section 7 rights and, in the alternative, that if

summary judgment proceedings were appropriate, the Agency had not met the substantive test for

summary judgment. [ 24 ] The motion judge issued his reasons on August 28, 2018.

The Motion Judge’s Decision [ 25 ] In his reasons, the motion judge correctly observed that the Agency’s affidavit evidence was largely undisputed by the respondent. He summarised that evidence and the background to the proceedings as follows (at paras 3-5, 66-76): [The Agency] apprehended the child, G.H. (born [. . .], 2017) at birth. The initial plan proposed by the Agency was a six-month temporary order, as the [respondent] had initiated treatment at the Behavioural Health Foundation (“BHF”). The [respondent] prematurely left BHF and the Agency revised its plan to a permanent order.

There have been no previous orders made regarding this child. The Agency now seeks a permanent order and the [respondent] is prepared to consent to a six-month temporary order of guardianship. The [respondent] does not dispute the child being in need of protection at the time of apprehension. In addition, she also does not dispute the ongoing need for protection. The [respondent] disputes what order is in the best interests of the child. The [respondent] has had a 15-year struggle with substance abuse, domestic violence and untreated mental health issues.

As a result, she has spent a significant amount of her life transient and living in and out of jail. In the past, the [respondent] has been unsuccessful in her attempts at treatment programs. The Agency learned of G.H.’s expected birth from the [respondent] while she was incarcerated at the Headingley Correctional Centre (“Headingley”). Despite the [respondent] insisting that she was incarcerated for human trafficking and negligence, her Winnipeg Police Service records disclose that she was incarcerated as a result of breaching her probation conditions.

After being released from Headingley, the [respondent] continued to abuse methamphetamines, despite knowing she was pregnant and insisting she wished to parent her child. At this point in her life, the [respondent] had been using methamphetamines for the last four years and abusing crack cocaine prior to that. Prior to the birth of G.H., the [respondent] moved to BHF for long-term treatment. Her most recent attempt at treatment had been in September 2016 at Pritchard House, where she was discharged early for using methamphetamines. On [. . .], 2017, the [respondent] gave birth to G.H.

While initially the Agency was considering a six-month temporary order of guardianship for G.H., that changed when the [respondent] was removed from [the] BHF program on February 6, 2018. The Agency was advised that the [respondent] was asked to leave BHF as a result of her erratic behaviour, her becoming verbally aggressive and her inability to follow the rules, namely, no threats or acts of violence and no substance use. BHF believes that the [respondent] had significant mental health issues that needed to be addressed primarily before her issues of substance abuse could be addressed.

Since she left BHF, the [respondent’s] situation has deteriorated further. She continues to use methamphetamines and the Agency has no information on where she is residing.

On February 22, 2018, after a consultation with the interdisciplinary team from the Child Protection Centre, a recommendation was made that the [respondent] “would likely benefit from long-term residential treatment in a facility that can focus on both extreme mental instability as well as addiction issues.” It went on further to state that “the probability of (the [respondent]) overcoming her personal issues in a timely manner to be able to care for (G.H.) is low.” As a result of the [respondent’s] longstanding addiction, mental health issues and transiency, the Agency made the decision to seek a

permanent order of guardianship. G.H. has been residing in the same foster home since birth. The foster parents are committed to the child’s long-term care and ensuring that G.H. grows up with a strong connection to the child’s Indigenous culture. [emphasis added] [ 26 ] In his reasons, the motion judge said that the narrow question before him was whether the existing

summary judgment procedures provide a fair hearing in child protection matters. The motion judge said that he was guided by the Supreme Court of Canada’s decision in Hryniak v Mauldin , 2014 SCC 7 . [ 27 ] In order to decide the narrow question, the motion judge considered a “new framework” (at para 28) for

summary judgment proceedings outlined in Free Enterprise Bus Lines Inc et al v Winnipeg Exclusive Bus Tours Inc et al , 2018 MBQB 64 ( Free Enterprise ) and “the traditional

summary judgment approach” ( ibid ) under Homestead Properties (Canada) Ltd v Sekhri et al , 2007 MBCA 61 ( Homestead ), as well as recent amendments to r 20 of the Queen’s Bench Rules . [ 28 ] The motion judge noted that, before a child protection

summary judgment motion is set down for hearing, the matter must proceed through intake court. Although the rules requiring a

summary judgment conference (i.e., r 20.03) do not apply in family proceedings, the motion judge concluded that the intake hearing was a form of case conferencing and served the same function as the

summary judgment conference contemplated by r 20.02(1). [ 29 ] With respect to the “new framework”, the motion judge said that (at paras 38, 43): The new child protection model creates a judge-managed process. A judge is involved at the front end/triage level to provide direction to the parties and to help ensure that the procedure is tailored to the requirements of the case. While the parties no longer control the process, they benefit from the flexibility that the new process provides. . . . At the intake level, the matter is mandatorily directed to either a trial or

summary judgment proceeding if the case has not been settled.

This is the essence of the new child protection model and the role of the intake court falls squarely into the rationale set out in Free Enterprise . (I note parenthetically that the “new child protection model” referred to by the motion judge is the Manitoba, Court of Queen’s Bench (Family Division), “Practice Direction: Re: Child Protection Proceedings” (10 February 2017), online (pdf): Manitoba Courts www.manitobacourts.mb.ca/site/assets/files/1152/practice_direction_cp_model_final.pdf (the New Model).) [ 30 ] Significantly, and as will be discussed later in these reasons, the Free Enterprise decision describes a method of analysis different from the test for

summary judgment set out in Homestead . [ 31 ] The motion judge also considered the alternative situation “in the event that the new Queen’s Bench [r 20] does not affect the traditional Homestead test” (at para 44 ), and he concluded that (at paras 49-50): In my view, the Agency cannot achieve success at a

summary judgment motion if it has not met the balance of probabilities. It could be argued that the

summary judgment burden is in fact higher than one would otherwise face at a trial based on balance of probabilities. If the moving party has met a prima facie case, all that is required of the defendant is to show the court that there is a genuine issue requiring a trial, i.e., some realistic prospect of success. Once again, it could be argued that this would be a lower threshold than balance of probabilities on the part of the parent seeking to oppose a

summary judgment order requested by the Agency. I am left with the conclusion that the requirement of a moving party to show a prima facie case does not deprive the responding party of a right to a fair hearing. The responding party has the ability to file its own evidence and “put their best foot forward”, so to speak. They have the ability to challenge the moving party’s evidence through cross-examination on affidavits, all in an effort to show that there was a genuine issue requiring a trial.

Summary judgment proceedings preserve the responding party’s right to a fair hearing as provided for in s. 7 of the Charter . [ 32 ] The motion judge determined that, whether one applied the “new framework” in Free Enterprise or the “traditional” approach in Homestead ,

summary judgment proceedings are available in child protection proceedings and that there was no violation of the respondent’s right to a fair hearing (at paras 51-56, 58-59):

In

summary judgment proceedings, the legal onus rests with the Agency to set out a prima facie case on a balance of probabilities that, firstly, a child was in need of protection and remains in need of protection, and secondly, that the order sought by the Agency is in the best interest of the child. This is not dissimilar to the burden placed on the Agency in a full trial. In the decision of The Director of CFS v.

N.L., W.W. and N.P. , 2016 MBQB 31 , Little J. found at the conclusion of the trial (at para. 21): While the legal burden remains with the Agency throughout, the evidentiary burden can and will shift back and forth between the parties during the course of a hearing. If the Director establishes a prima facie case for a need of protection and there is insufficient cogent evidence called to erode that case, the Director will have discharged its onus on the issue of protection. The legal burden for establishing the Agency’s case does not shift to the parent.

The only obligation placed on the respondent is to show that there is a genuine issue in need of a trial. A

summary judgment process in child protection proceedings does in fact permit a judge to make the necessary findings of fact, apply the law to the facts and is a process that is proportionate, more expeditious and a less expensive means to achieve a just result. Proportionality requires the court to acknowledge that a process can be fair and just, without the expense and delay of a trial, such as in a case where a permanent order is being sought.

The proportionality principle for the purposes of a family proceeding is set out in Rule 70.02.1(2), which states: Proportionality 70.02.1(2) Securing the just, most expeditious and least expensive determination of a family proceeding on its merits includes, so far as is practicable, conducting the proceeding and allocating appropriate court resources to the proceeding in ways that are proportionate to (

a) the interests of any child affected; (

b) the importance of the issues in dispute; (

c) the amount of support and the value of property likely at issue in the proceeding; (

d) the complexity of the proceeding; and (

e) the likely expense of the proceeding to the parties. The factors listed in the proportionality rule, together with the screening process, provide a framework to permit the court to devise a just process in a given case and this may include a

summary judgment proceeding that is fair, responsive to the needs of the parties and permits consideration of the social context of child protection proceedings and the need to ensure that parents are able to participate effectively in the hearing. [The CFSA ] does not guarantee a party, including a parent, a right to a trial.

Section 36 of the [ CFSA ] permits proceedings under

Part III to be as informal as the Judge or Master may allow. It is not sufficient in this day and age and in light of the case law from the Supreme Court of Canada and superior courts across the country, to insist that an oral hearing/conventional trial is the only fair hearing. As long as the principles of fundamental justice are preserved and the right to a fair hearing is not lost, a

summary judgment proceeding should not be cast away in favour of an oral hearing/conventional trial.

Summary judgment is available in the province of Manitoba for child protection proceedings.

I therefore conclude that there is no violation of the [respondent’s] right to a fair hearing and that

summary judgment applications are available to the Agency pursuant to Rule 20 . [emphasis added] [ 33 ] After reviewing the totality of the evidence, the motion judge concluded that the Agency had “compellingly proven its case” (at para 79), that the respondent had failed to show that there was a genuine issue requiring a trial and that it was in the best interests of G.H. that a permanent order be granted. Issues [ 34 ] The issues raised in this appeal are: 1. whether the motion judge erred when he found that the

summary judgment process did not violate the respondent’s

section 7 right to a fair and prompt hearing; 2. whether the motion judge erred in deciding that there was no genuine issue requiring a trial; and 3. whether the motion judge erred in deciding that it was in the best interests of G.H. to appoint the Agency as his permanent guardian. Standards of Review [ 35 ] To the extent that the respondent is raising a constitutional issue, the standards of review are described in HH (at paras 24-25): 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 ). 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. [ 36 ] To the extent that this appeal concerns the appropriate test for

summary judgment and the exercise of discretion associated with the application of that test, the standards of review are set out in Hryniak (at paras 81-84 ): [A]bsent an error of law, the exercise of powers under the new

summary judgment rule attracts deference. When the motion judge exercises her new fact-finding powers under Rule 20.04(2.1) [of the Ontario, Rules of Civil Procedure , RRO 1990, Reg 194 ] and determines whether there is a genuine issue requiring a trial, this is a question of mixed fact and law. Where there is no extricable error

in principle, findings of mixed fact and law should not be overturned absent palpable and overriding error: Housen v. Nikolaisen, 2002SCC 33, [2002] 2 S.C.R. 235, at para. 36. Similarly, the question of whether it is in the “interest of justice” for the motion judge to exercise the new fact-finding powers providedby Rule 20.04(2.1) depends on the relative evidence available at the

summary judgment motion and at trial, the nature, size, complexityand cost of the dispute and other contextual factors. Such a decision is also a question of mixed fact and law which attracts deference. Provided that it is not against the “interest of justice”, a motion judge’s decision to exercise the new powers is discretionary. Thus,unless the motion judge misdirected herself, or came to a decision that is so clearly wrong that it resulted in an injustice, her decisionshould not be disturbed.

Of course, where the motion judge applies an incorrect principle of law, or errs with regard to a purely legal question, such as theelements that must be proved for the plaintiff to make out her cause of action, the decision will be reviewed on a correctness standard: Housen, at para. 8. [37] Finally, the standard of review relating to a judge’s decision to grant

summary judgment is summarised in VirdenMainline Motor Products Limited v Murray et al, 2018 MBCA 82 (at para 17): The standard of review for a decision to grant or deny a motion for

summary judgment is well established. It is a discretionary decisionand thus is reviewed by this Court on a deferential standard, which means that it can be set aside on appeal only if there is a materialerror as to the law, the facts or unless the decision is so clearly wrong as to be unjust. The Parties’ Positions The Respondent’s Position [38] The respondent submits that the motion judge erred when he failed to find that her

section 7 rights had been infringedcontrary to the principles of fundamental justice. She argues that the

summary judgment process has an arbitrary effect and that there arequalitative differences between a hearing under

Part III of the CFSA and a

summary judgment hearing.

In particular, she says that thesummary judgment process places a burden on the parents at a post-apprehension hearing to prove that their case is worthy of a hearingon the merits. [39] According to the respondent, r 20.05 of the Queen’s Bench Rules requires the responding party to provide sufficientevidence to demonstrate that a trial is required, and r 20.07 places a persuasive burden on the responding party because it speaks to howthe issue is to be decided. [40] In addition, the respondent says that requiring the Agency to establish its case on a prima facie basis is a lower burdenthan establishing a case on a balance of probabilities. [41] When an agency is seeking an order of guardianship, the respondent submits that the question of a child’s best interestswill always be a genuine issue requiring a trial and that an expedited hearing or “summary trial” is a preferable method of adjudication. [42] The respondent submits that cases which are factually complex are ill-suited for

summary judgment and that childwelfare agencies seek permanent orders as a last resort. How a permanent order is a last resort, whether there is a less intrusive order,and whether the agency’s plan is in a child’s best interests, are factually complex issues.

As well, the evidence in a child protectionmatter is highly nuanced, is not in any way similar to a financial dispute and involves questions relating to parent-child bonding,attachment, capacity and motivation. [43] In this case, the respondent says that there was sufficient evidence to warrant a full hearing to determine whether atemporary order was warranted, and the motion judge failed to give sufficient weight to that evidence. [44] The respondent notes that

section 7 violations are rarely saved by

section 1 of the Charter. The respondent argues thereis no way to save the breach of her

section 7 rights because the “minimal impairment” test cannot be met (see R v Oakes, (SCC), [1986] 1 SCR 103). [45] The respondent says that she was entitled to a hearing under

Part III of the CFSA, that there was no reason to employthe

summary judgment process and that there is no evidence that the

summary judgment motion was a more expedient process. [46] The hearing of this appeal was briefly adjourned to allow the parties to provide further submissions in relation toShannex Inc v Dora Construction Ltd, 2016 NSCA 89 (Shannex); Deren v SaskPower, 2017 SKCA 104 (Deren); and Weir-JonesTechnical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 (Weir-Jones). The respondent observes that none of thesecases had Charter implications or involved child protection proceedings.

The Agency’s Position [47] The Agency concedes that the warrantless apprehension of a child deprives a parent of the right to security of theperson guaranteed by

section 7 and that a parent is entitled to a fair and prompt hearing. [48] The Agency submits that a hearing will be fair where it permits a parent the opportunity to present her/his caseeffectively before a neutral and impartial arbiter. As stated in Hryniak, the standard of fairness is not whether the procedure is asexhaustive as a trial, but whether it gives the judge the confidence that he/she can find the necessary facts and apply the relevantprinciples so as to resolve the dispute. [49] The Agency says that when it seeks a permanent order by way of

summary judgment, it continues to have the onus toprove, on a balance of probabilities, that the child is in need of protection and that the order is in the child’s best interests. [50] The Agency submits that less formal proceedings, such as those for

summary judgment, are specifically contemplatedby

section 36 of the CFSA, which provides that child protection proceedings “may be as informal as a judge or master may allow”. [51] According to the Agency, the decision of a judge to set a matter down for

summary judgment is a discretionary decisionand not one that is made arbitrarily. In this case, the intake judge had intake briefs from both the Agency and the respondent. TheAgency outlined the evidence it intended to call, but the respondent gave no indication that she intended to file further evidence or callwitnesses, and she admitted the material evidence offered by the Agency. After reading the intake briefs, the intake judge decided that,in the circumstances, this was an appropriate case for a

summary judgment motion. [52] The Agency points out that

section 37 of the CFSA explicitly permits a judge or master to compel the attendance of anyperson to give evidence under oath, and the court has this power whether the matter proceeds by way of

summary judgment orotherwise. [53] The Agency says that the respondent had an opportunity to cross-examine on the affidavits and chose not to. She alsohad the opportunity to call rebuttal evidence and to file a supplemental affidavit. [54] The Agency submits that, at the

summary judgment hearing, the Agency was still required to prove its case, and therespondent continued to have an opportunity to show that there was a genuine issue requiring a trial. This decision was only made afterboth parties had an opportunity to present their evidence and make submissions, and there was nothing arbitrary about it. [55] The Agency emphasises that

summary judgment does not lower the legal standard of proof borne by the Agency toprove its case on a balance of probabilities. The Agency disagrees with the respondent that this onus shifted to her at any time during thesummary judgment proceeding. The motion judge explicitly used the balance of probabilities standard and found that the Agency hadproven its case whether using the one-step method in Free Enterprise or the two-step method in Homestead. Additionally, the motionjudge explicitly left the onus of proof with the Agency and not with the respondent. [56] In applying the two-step approach to

summary judgment, the motion judge required the Agency to first establish thatthe respondent’s case must fail before any evidentiary obligation was required of her. All that was being asked of the respondent was toexplain why a trial was required, given the evidence adduced by the Agency and admitted by the respondent. The respondent was notable to do so, not because the

summary judgment process was unfair, but because the facts were not supportive of her position. [57] The Agency acknowledges that the

summary judgment process is not appropriate in all child protection cases and that,in some cases, a determination of a child’s best interests may be factually complex. However, the Agency submits that the present casewas not factually or legally complex. [58] The Agency says that the only matter in dispute between the parties at the time of the

summary judgment hearing waswhether a permanent order or a temporary order was in G.H.’s best interests. [59] The Agency submits that it is clear from the motion judge’s reasons that it had proven on a balance of probabilities thata permanent order of guardianship was in G.H.’s best interests and that there was no need for a trial to determine that issue. Manitoba’s Position [60] Manitoba intervened pursuant to the notice of constitutional question and confined its submission to the constitutionalissues. [61] It is Manitoba’s position that the

summary judgment process can be used in child protection proceedings, includingproceedings for a permanent order, in a manner that is consonant with the principles of fundamental justice and

section 7. [62] As stated in New Brunswick (Minister of Health and Community Services) v G (J), (SCC), [1999] 3SCR 46 (G (J)), the state may only relieve a parent of custody if there has been a fair hearing before a neutral and impartial arbiter, andthe paramount consideration must be the best interests of the child (see para 70). [63] Manitoba submits that what is fair will vary depending on the circumstances and that the analysis must be a contextualone.

Section 36 of the CFSA provides that proceedings may be informal and has been interpreted to provide a broad discretion as to howa child protection hearing may be conducted. The court’s decision to use the

summary judgment process in a given case is highlydiscretionary, as are directions the court provides regarding the evidentiary and other procedural issues in the motion. [64] Manitoba emphasises that the process can be fair without the expense and delay of a traditional trial, and that alternativemodels of adjudication are no less legitimate than the traditional trial. According to Manitoba, a fair and prompt hearing is essential. Undue process and protracted trials with unnecessary expense and delay can hinder, not promote, the fair and just resolution of disputes.

[65] Manitoba agrees with the respondent that the long history of Indigenous estrangement from the justice system and themistrust of the system that has resulted are relevant considerations. Manitoba submits that these considerations are most appropriatelyconsidered in the context of determining whether the procedure used in a given case will result in a fair and prompt hearing. [66] While the

summary judgment conference process does not apply in family proceedings, Manitoba says that, in thecontext of the New Model, the intake judge is well positioned to perform a function similar to that of a

summary judgment conferencejudge. The factors listed in the proportionality rule (see r 70.02.1(2)), together with the screening process, provide a framework topermit the court to devise a fair and prompt process in a given case. [67] Manitoba believes that Free Enterprise addresses the issue of onus in a

summary judgment proceeding. The newsummary judgment procedure is an alternative means of resolving the case, as opposed to a means to weed out claims, and the issue iswhether the judge can decide the issues fairly on the basis of the evidence or whether some type of further hearing is necessary. Ashifting onus no longer makes sense, and it is open to this Court to interpret r 20 of the Queen’s Bench Rules as not reversing the onus orimproperly imposing a legal burden on parents in child protection proceedings. Analysis and Decision [68] Before addressing the specific issues raised in this appeal, it would be useful to review the traditional test for

summaryjudgment in Manitoba, the Supreme Court of Canada’s decision in Hryniak, the new

summary judgment rules and the present test forsummary judgment in Manitoba. The Test for

Summary Judgment Prior to January 1, 2018 [69] The long-accepted test for

summary judgment in Manitoba was set out in Homestead (the Homestead test or thetraditional test) (at paras 14-17): The test for

summary judgment is well established, and no further detailed explanation is needed. The test is to the same effectregardless of whether the moving party is the plaintiff or the defendant. When the defendant moves, as here, he must prove, on a primafacie basis, that the plaintiff’s action must fail. If he meets that burden, then the plaintiff has the burden to establish that there is agenuine issue for determination. He must show that his claim is “one with a real chance of success” (see Hercules Managements Ltd. v.Ernst & Young, (SCC), [1997] 2 S.C.R. 165 at para. 15; see also Manitoba Hydro Electric v.

Inglis (John) Co. et al.(1999), (MB CA), 142 Man.R. (2d) 1 (C.A.)). If he fails to do so,

summary judgment dismissing the claim willfollow. When a plaintiff moves, he must prove, on a prima facie basis, that his action will succeed. If he meets that burden, then the defendanthas the burden to establish that there is a genuine issue for determination. If he fails to do so,

summary judgment granting the claim willfollow. As was made clear in Blanco et al. v. Canada Trust Co. et al., 2003 MBCA 64, 173 Man.R. (2d) 247 at para. 62, regardless ofwho is the moving party, the analysis is a two-step process. These principles are based on Rule 20 of the Court of Queen’s Bench Rules. That rule has been discussed and analyzed in numerouscases including Podkriznik v. Schwede (1990), (MB CA), 64 Man.R. (2d) 199 (C.A.), Fidkalo v. Levin (1992), (MB CA), 76 Man.R. (2d) 267 (C.A.), Somers Estate v. Maxwell (1995), (MB CA), 107 Man.R. (2d)220 (C.A.), Kleysen et al. v.

Canada (Attorney General) et al., 2001 MBQB 205, 159 Man.R. (2d) 17, and Blanco. Whether the test is cast in terms of “the action fails in law” (Somers, at para. 10), or that the defendant must show “the absence of a validclaim in law” (Somers, at para. 11), or that “the action must fail in law” (Somers, at para. 16), or “that at a trial it will succeed” (Blanco,at para. 28), or some other like phrase, the expressions amount to the same thing. The moving party must show that, prima facie, on thefacts the responding party’s case must fail.

If he does, then the second step of the analysis commences, and the responding party has theburden of showing that there is a genuine issue for trial. [emphasis added] The Burden, Onus and Standard of Proof [70] It is evident from the written submissions that there is considerable confusion regarding the burden placed on themoving party and the responding party in a

summary judgment proceeding. Such confusion is understandable given the impreciseterminology and the reference to shifting onuses in past decisions. [71] For example, in Free Enterprise, the Court concluded that the Homestead test no longer “fits” (at para 39). It alsoconcluded (at paras 40-41):

Because the new

summary judgment procedure is no longer designed to weed out claims but is rather an alternate means of resolving the case, a shifting onus no longer makes sense . The respondent may still advance arguments as to why the matter must go to trial. But those arguments should first be advanced at the

summary judgment conference before the parties have gone to the expense of preparing the motion. That is not to say that any formality needs to be introduced into the

summary judgment conference but the need for a trial should be explained to the judge at that point so that she has the information necessary to determine if the

summary judgment motion should proceed. Once the judge has screened out those cases that clearly require a trial, the judge should consider all of the evidence presented by the parties at the hearing in determining whether she can decide the issues fairly on the basis of that evidence or whether some type of further hearing is necessary. In my view, it is not helpful to make this determination on the basis of a shifting onus . I note that the Court in Hryniak made no reference to onus in discussing the test for

summary judgment.

It would seem that to the extent that onus plays a role in the process, it is with respect to the substantive issues, as it is in a traditional trial. [emphasis added] [ 72 ] As Sidney N Lederman, Alan W Bryant & Michelle K Fuerst explain in their text, The Law of Evidence in Canada , 5th ed (Toronto: LexisNexis, 2018), the persuasive burden of proof and the evidential burden of proof are distinct concepts (at sections 3.2, 3.7, 3.9, 3.11, 3.35-3.36, 3.46): The term “burden of proof” is occasionally used to describe two distinct concepts relating to the obligation of a party in a proceeding in connection with proof.

In its first sense, the term refers to the obligation imposed on a party to prove or disprove a fact or issue to either a balance of probabilities or beyond a reasonable doubt. In the second sense, it refers to a party’s obligation to adduce or point to evidence on the record to raise an issue to the satisfaction of the trial judge. . . . The term “evidential burden” means that a party has the responsibility to insure that there is sufficient evidence of the existence or non- existence of a fact or of an issue on the record to pass the threshold test for that particular fact or issue. . . . . . .

In contrast, the term “persuasive (legal) burden” means that a party has an obligation to prove or disprove a fact or issue to the criminal or civil standard. . . . The significance of the evidential burden arises when there is a question as to which party has the right or the obligation to begin adducing evidence. It also occurs when a question arises whether there is sufficient evidence to raise an issue for determination by the trier of fact.

It must be underlined that when there is a reference to discharging an evidential burden, or a reference to adducing evidence, it should be understood to include pointing to some evidence already on the record. The persuasive (legal) burden of proof normally arises after the evidence has been completed and the question is whether the trier of fact has been persuaded with respect to the issue or case to the civil or criminal standard of proof. The persuasive (legal) burden, however, ordinarily arises after a party has first satisfied an evidential burden in relation to that fact or issue.

The incidence of the persuasive (legal) burden of proof means that the party has the obligation to prove or disprove the existence or non- existence of a fact or issue to the civil or criminal standard; otherwise that party loses on that issue. . . . Accordingly, a party who has both the evidential and persuasive burdens on an issue will lose on that issue as a matter of law if that party fails to satisfy the evidential burden.

Conversely, if the party has only an evidentiary burden on an issue, failure to satisfy it will not automatically result in a loss of the case because the trier of fact must still accept the evidence of the party having the persuasive burden on the other issues. If that evidence is indeterminate, the persuasive burden will be applied against the party having the onus of proof. The use of imprecise language to describe the effect of satisfying the evidential burden may create confusion.

The phrases “ prima facie proof”, “ prima facie evidence”, and “ prima facie case” are found in the jurisprudence, the texts on evidence, and the statutes. . . .

The authorities and the jurisprudence often refer to the shifting of the evidential burden or the persuasive (legal) burden of proof. Exceptfor the operation of presumptions of law or rebuttable statutory provisions, these burdens do not shift. [footnotes omitted] [73] The Homestead test specifically contemplates a “two-step process” (Homestead at para 15). Under the Homestead test,the moving party has the burden of showing that the responding party’s case must fail. If the moving party satisfies that burden, theresponding party has the burden of showing that there is a genuine issue.

The burdens described in the Homestead test are distinctevidential burdens placed on each party. Those burdens do not shift. [74] As discussed later in this decision, while the test for

summary judgment has changed (i.e., from whether there is agenuine issue for trial, to whether there is a genuine issue requiring a trial), the two-step process described in Homestead continues toprovide useful, practical guidance to the courts and counsel. [75] In Canada (Attorney General) v Lameman, 2008 SCC 14, the Supreme Court of Canada confirmed that (at para 11): The defendant who seeks

summary dismissal bears the evidentiary burden of showing that there is “no genuine issue of material factrequiring trial”: Guarantee Co. of North America v. Gordon Capital Corp., (SCC), [1999] 3 S.C.R. 423, at para. 27. The defendant must prove this; it cannot rely on mere allegations or the pleadings: 1061590 Ontario Ltd. v. Ontario JockeyClub (1995), (ON CA), 21 O.R. (3d) 547 (C.A.); Tucson Properties Ltd. v. Sentry Resources Ltd. (1982), (AB KB), 22 Alta. L.R. (2d) 44 (Q.B. (Master)), at pp. 46-47. If the defendant does prove this, the plaintiff must either refute orcounter the defendant’s evidence, or risk

summary dismissal: Murphy Oil Co. v. Predator Corp. (2004), 365 A.R. 326, 2004 ABQB688, at p. 331, aff’d (2006), 55 Alta. L.R. (4th) 1, 2006 ABCA 69.

Each side must “put its best foot forward” with respect to theexistence or non-existence of material issues to be tried. [76] Saskatchewan, New Brunswick and Prince Edward Island also use the “genuine issue requiring a trial” standard, anddecisions from the courts of appeal for those provinces support the continued application of the Homestead approach (see PeterBallantyne Cree Nation v Canada (Attorney General), 2016 SKCA 124; RBC v MJL Enterprises & Ors, 2017 PECA 10; McQuaid vGovernment of PEI et al, 2017 PECA 21; O’Toole v Peterson, 2018 NBCA 8; and Blue Hill Excavating Inc v Canadian Western BankLeasing Inc, 2019 SKCA 22). [77] There is no suggestion in the Homestead decision that the persuasive (legal) burden of proof shifts.

Under theHomestead test, the persuasive burden always remains on the moving party to establish that

summary judgment should be granted. [78] As summarised in Garry D Watson, Holmested and Watson: Ontario Civil Procedure (Toronto: Thomson Reuters,1988) (loose-leaf updated 2019), Commentary on the Rules of Civil Procedure at Rule 20, pt C,

section 9 (online: WLNext Can (dateaccessed 23 July 2019)): While both parties must put their best evidentiary foot forward, the persuasive burden is solely on the moving party. . . . . . . Osborne J.A.’s statement in 1061590 Ontario Ltd. v. Ontario Jockey Club, (ON CA), 1995 CarswellOnt 63, 21 O.R.(3d) 547 (C.A.) that “a respondent on a motion for

summary judgment must lead trump or risk losing” means only that a respondentcannot answer a moving party’s persuasive evidence by taking the position that the evidence is not exhaustive and that other evidencemay or will be available at trial to support the position of the respondent --- faced with persuasive evidence from the moving party, theresponding party must counter with its own evidence or else lose. Although Hi-Tech Group [Hi-Tech Group Inc v Sears Canada Inc, (ON CA), 2001 CarswellOnt 9 (CA)], Corchis[Corchis v KPMG Peat Marwick Thorne, 2002 CarswellOnt 1064 (CA)] and Ontario Jockey Club, discussed above, were decided whenthe test for

summary judgment was still a genuine issue “for trial” rather than the current “requiring a trial,” the principle common tothese three cases is no less applicable today: the persuasive onus, however articulated, is on the moving party and must be discharged bythe moving party if the motion for

summary judgment is to be granted. [79] Finally, there is only one standard of proof in civil law, namely proof on a balance of probabilities (see FH vMcDougall, 2008 SCC 53 at para 40), and it is uniformly accepted that that standard applies to

summary judgment cases (see, forexample, Stefanyk v Sobeys Capital Incorporated, 2018 ABCA 125 at para 14; and O’Toole at para 68).

The Hryniak Decision [ 80 ] While both Homestead and Hryniak were concerned with the test for

summary judgment, each is important for a different reason. In Homestead , the Court explained the burdens placed on each party at a

summary judgment hearing; and in Hryniak , the Supreme Court of Canada explained when a

summary judgment process is appropriate. [ 81 ] In Hryniak , Karakatsanis J wrote the unanimous decision of the Court. She emphasised that a culture shift is required, “moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case” (at para 2). She wrote (at paras 5, 43, 45): I conclude that

summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims. The Ontario amendments [in 2010] changed the test for

summary judgment from asking whether the case presents “a genuine issue for trial” to asking whether there is a “genuine issue requiring a trial”. The new rule, with its enhanced fact-finding powers, demonstrates that a trial is not the default procedure. . . . . . . Thus, the amendments are designed to transform Rule 20 from a means to weed out unmeritorious claims to a significant alternative model of adjudication. [ 82 ] Karakatsanis J’s comments as to when a

summary judgment process should (and should not) be used are of particular importance in the context of the present appeal (at paras 4, 49-50, 58-59, 66, 68): In my view, a trial is not required if a

summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial. There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. These principles are interconnected and all speak to whether

summary judgment will provide a fair and just adjudication. When a

summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

This inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It may require the motion judge to assess the relative efficiencies of proceeding by way of

summary judgment, as opposed to trial. This would involve a comparison of, among other things, the cost and speed of both procedures. (Although

summary judgment may be expensive and time consuming, as in this case, a trial may be even more expensive and slower.) It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it. (Even if the evidence available on the motion is limited, there may be no reason to think better evidence would be available at trial.) . . . What is fair and just turns on the nature of the issues, the nature and strength of the evidence and what is the proportional procedure. On a motion for

summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the

summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

While

summary judgment must be granted if there is no genuine issue requiring a trial, the decision to use either the expanded fact- finding powers or to call oral evidence is discretionary. The discretionary nature of this power gives the judge some flexibility in deciding the appropriate course of action. This discretion can act as a safety valve in cases where the use of such powers would clearly be inappropriate. There is always the risk that clearly unmeritorious motions for

summary judgment could be abused and used tactically to add time and expense. In such cases, the motion judge may choose to decline to exercise her discretion to use those powers and dismiss the motion for

summary judgment, without engaging in the full inquiry delineated above. [footnotes omitted] [ 83 ] The Supreme Court of Canada has considered Hryniak on a number of occasions. For instance, in Association des parents de l’école Rose-des-vents v British Columbia (Education) , 2015 SCC 21 , Karakatsanis J once again wrote for the Court. She stated, “Judges must actively manage the legal process in line with the principle of proportionality, taking into account fair access to the affordable, timely and just adjudication of claims” (at para 78), citing Hryniak ; see also Brunette v Legault Joly Thiffault, sencrl , 2018 SCC 55 at para 48 ). The New Rules and Procedure for

Summary Judgment [ 84 ] Manitoba’s

summary judgment rules were amended by the Court of Queen’s Bench Rules , amendment , Man Reg 130/2017, which came into force on January 1, 2018, and were further amended in relation to “family proceedings” by the Court of Queen’s Bench Rules , amendment , Man Reg 170/2018, which came into force on February 1, 2019. The amended rules are very similar to the Ontario

summary judgment rules that were considered in Hryniak . [ 85 ] The January 1, 2018 amendments to r 20 reflect the culture shift encouraged in Hryniak , that is, to change

summary judgment from a process intended to “weed out” clearly unmeritorious claims to an alternative method of adjudication (at para 45). In particular, r 20.07(1) requires a judge to grant

summary judgment if he or she is satisfied that there is “no genuine issue requiring a trial”, whereas the former rule (then r 20.03(1)) required a judge to do so where there was “no genuine issue for trial”. [ 86 ] A “family proceeding” as defined in the Queen’s Bench Rules includes a proceeding for the determination or variation of the custody, access or guardianship of a child and a proceeding under the CFSA (see r 70.01 and The Court of Queen’s Bench Act , CCSM c C280,

section 41 ). [ 87 ] Rule 20 describes the procedure for bringing a motion for

summary judgment (the motion) in civil proceedings. [ 88 ] The party bringing the motion (the moving party) must obtain a date for a

summary judgment conference (the conference) with the consent of all parties or must bring a motion before a judge to

schedule a date for the conference (see r 20.02). [ 89 ] The judge at the conference will ordinarily be seized of the motion (see r 20.06). [ 90 ] At the conference, the judge must review the nature of the action and discuss the motion and the evidence that the parties intend to rely upon at the hearing (see r 20.03(1)). While the moving party may file supporting affidavit material or other evidence in advance of the conference, it is not a precondition.

That said, because the conference provides an initial screening function, in most cases it would be wise for the moving party to file some evidence and a short brief explaining why there is no genuine issue requiring a trial. [ 91 ] While r 20.03(2) permits the judge to adjourn the conference and to direct the parties to file evidence or other materials, adjournments should generally be discouraged as they are rarely proportional. Parties should come to the first conference prepared to address whether the

summary judgment process is appropriate and, if so, should

schedule the hearing date. [ 92 ] At the conference, the judge will make a preliminary decision as to whether the motion will proceed (see r 20.03(4)). Rules 20.03(5) and 70.18.1(2) (which applies in family proceedings) provide that the judge must allow the motion to proceed if he or she is satisfied that the motion can achieve a fair and just adjudication of the issues in the action by providing a process that :

a) allows the judge to make the necessary findings of fact;

b) allows the judge to apply the law to the facts; and

c) is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial. These rules specifically incorporate the principles articulated in para 49 of Hryniak . [ 93 ] Rules 20.03(5) and 70.18.1(2) describe the “threshold test” or “initial hurdle” that must be met by the moving party. If the judge is not satisfied that the process will meet the three requirements in those rules, the judge will direct that the motion not proceed (see r 20.03(4)).

If this initial hurdle is met by the moving party, the judge hearing the motion must still decide, on the basis of the complete record, whether it is possible to make the necessary findings of fact and to apply the law to the facts to achieve a just result. [ 94 ] It bears emphasis that if any one of the requirements in rr 20.03(5) or 70.18.1(2) is absent, the

summary judgment process is not available in a child protection proceeding or in any other proceeding. These principles are interconnected and all speak to whether

summary judgment will provide a fair and just adjudication (see Hryniak at para 50 ).

[ 95 ] As stated in Hryniak , “What is fair and just turns on the nature of the issues, the nature and strength of the evidence and what is the proportional procedure” (at para 59). [ 96 ] In addition to time and expense, there are numerous factors that must be considered when deciding whether a

summary judgment motion will be more proportional than a conventional trial. Certainly an important factor will be the seriousness of the interests at stake. Where the interest at stake is serious and “unquestionably of the highest order” ( G (

J) at para 76 ; see also para 87), as it is in the present proceedings, that factor may weigh heavily against the use of

summary judgment. [ 97 ] The factors described in rr 1.04(1.1) (the proportionality principle for the purposes of civil proceedings) and 70.02.1(2) (the proportionality principle for the purposes of family proceedings) must also be considered when deciding whether

summary judgment is appropriate in a given case. [ 98 ] If the judge determines that the motion will proceed, the new rules and the CFSA provide a wide range of tools to assist a judge in making the necessary findings of fact. [ 99 ] Rule 20.03(6) (reproduced in r 70.18.1(3)) permits a judge to make “any order or give any direction that he or she considers necessary or appropriate”, and r 20.03(7) (reproduced in r 70.18.1(4)) specifically provides that a judge “may order that oral evidence be presented by one or more parties”.

Affidavit evidence can therefore be supplemented by a limited amount of viva voce evidence, but the judge should remain cognizant that, at some point, it may be more proportionate and sensible that the matter simply proceed to trial. [ 100 ] In addition, as noted in HH at para 80,

section 37 of the CFSA permits a judge in a child protection proceeding to:

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

b) accept evidence by affidavit;

c) accept as evidence medical and other reports; and

d) direct an investigation into any matter. [ 101 ] In responding to the affidavit material or other evidence supporting the motion, a responding party cannot rest on the mere allegations or denials in the pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial (see r 20.05). [ 102 ] The judge must grant

summary judgment if he or she is satisfied that there is no genuine issue requiring a trial (see r 20.07(1)). [ 103 ] As noted previously, the rules relating to

summary judgment motions in family proceedings changed on February 1, 2019. Prior to that date, r 70.18.1 provided that rr 20.02-20.04, 20.06 and 20.09-20.10 did not apply to a

summary judgment motion in a family proceeding. [ 104 ] Thus, in the context of the present appeal, the rules did not provide for a conference prior to the motion (see r 20.02), and the motion judge did not have the benefit of rr 20.03(6)-(7) to make any order or direction respecting the conduct or evidence at the motion or to order that oral evidence be presented by a party. However, the motion judge did have the ability pursuant to

section 37 of the CFSA to compel a person to give oral evidence and to produce documents, to accept evidence by affidavit, to accept as evidence expert reports and to direct an investigation. [ 105 ] To ensure proportionality and timeliness, it follows that, when a party first moves for

summary judgment, whether in the context of a conference, a pre-trial conference or some other forum, a motion date should be fixed at that initial hearing. [ 106 ] On February 1, 2019, the rules relating to

summary judgment motions in family proceedings were amended to include provisions similar to rr 20.03(5)-(7) (see rr 70.18.1(2)-(4)) and to provide that, where practicable, a judge who hears a motion must preside at the trial or final hearing of the proceeding (see r 70.18.1(5)). The Present Test for

Summary Judgment in Manitoba [ 107 ] The test for

summary judgment may be briefly summarised as follows. [ 108 ] At the hearing of the motion, the moving party must first satisfy the motion judge that there can be a fair and just determination on the merits (i.e., that the process will permit him or her to find the necessary facts and to apply the relevant legal principles so as to resolve the dispute, and that proceeding to trial would generally not be proportionate, timely or cost-effective).

In so doing, the moving party bears the evidential burden of establishing that there is no genuine issue requiring a trial. [ 109 ] If those requirements are met, the responding party must meet its evidential burden of establishing “that the record, the facts, or the law preclude a fair disposition” ( Weir-Jones at para 32 ; and Stankovic v 1536679 Alberta Ltd , 2019 ABCA 187 at para 22 ; see also Stankovic at para 29 ) or that there is a genuine issue requiring a trial (e.g., by raising a defence). In other words, the responding party must establish why a trial is required ( see Hryniak at para 56 ).

If the responding party fails to do so,

summary judgment will be granted. [ 110 ] The analysis contemplated by Karakatsanis J in Hryniak is itself a two-step analysis (see para 66). First, the motion judge must determine if there is a genuine issue requiring a trial based only on the evidence, without using any additional fact-finding powers. If there is such an issue, the second step requires the motion judge to determine if the need for a trial can be avoided by weighing the evidence, evaluating credibility, drawing inferences and/or calling oral evidence (see r 20.07(2)).

[ 111 ] There is no shifting onus; the standard of proof is proof on a balance of probabilities; and the persuasive burden of proof remains at all times with the moving party to establish that a fair and just adjudication is possible on a

summary basis and that there is no genuine issue requiring a trial. [ 112 ] In my view, the approach described in Hryniak and the two-step process described in Homestead are consistent with the new rules in Manitoba; to the extent that Free Enterprise suggests otherwise, it should not be followed. [ 113 ] With this background, I now turn to the three issues raised in this appeal. Issue 1 — Did the

Summary Judgment Process Violate the Respondent’s Right to a Fair Hearing? Introduction [ 114 ] The Supreme Court of Canada has made it clear that: 1. the state may only relieve a parent of custody when it is necessary to protect the best interests of the child, if there is a fair procedure for making this determination; 2. a fair procedure requires a fair hearing before a neutral and impartial arbiter, and the parent must have an opportunity to present his or her case effectively; and 3. effective parental participation at the hearing is essential for determining the best interests of the child. (See G (

J) at paras 70, 72-73 ). [ 115 ] There is no doubt that the

section 7 Charter interests of the respondent and G.H. were engaged in these proceedings. The question is whether the

summary judgment process was a fair procedure which met the requirements of fundamental justice and, in particular, whether it allowed the respondent to effectively participate at the hearing. [ 116 ] Hryniak instructs that the standard of fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge the confidence that he or she can find the necessary facts and apply the relevant principles so as to resolve the dispute (see para 50). [ 117 ] In my view, properly understood and implemented, the

summary judgment process and

Part III of the CFSA provide a broad discretion as to how a child protection hearing is conducted and allow for effective parental participation. As the motion judge observed (at para 55): The factors listed in the proportionality rule, together with the screening process, provide a framework to permit the court to devise a just process in a given case and this may include a

summary judgment proceeding that is fair, responsive to the needs of the parties and permits consideration of the social context of child protection proceedings and the need to ensure that parents are able to participate effectively in the hearing. [ 118 ] While it is well understood that

summary judgment is inappropriate where the facts and/or the law are complex, I reject the suggestion that child protection proceedings will always be factually complex and will always necessitate a conventional trial. [ 119 ] In terms of assessing proportionality, Hryniak proposes a comparative approach. Proportionality is to be assessed in relation to a full trial (see Hryniak at para 58 ), and the question is often simply this: What does a conventional trial offer that cannot be achieved on a

summary judgment motion? Given that oral evidence and cross-examination are both available at a

summary judgment motion, a conventional trial offers few advantages. [ 120 ] The concept of proportionality is not limited to procedural concerns. Rules 1.04(1.1) (in the civil context) and 70.02.1(2) (in the family context) require a court to consider, among other things, the nature and complexity of the proceeding, the interests of any child affected and the importance of the issues in dispute. [ 121 ]

Summary judgment is a form of judicial shortcut—in the sense that it is a more direct form of judicial resolution—which, when utilised, often results in a final disposition. For these reasons alone, there is a need for vigilance and caution in all

summary judgment proceedings. Such concerns are heightened when the interests at stake are serious or the parties are vulnerable. [ 122 ] The motion judge in these proceedings was well aware of the serious issue before him. He described a permanent order (which seeks to terminate parental rights) as the greatest infringement of

section 7 in the child protection area of the law (see para 12). [ 123 ] There is no doubt that child protection proceedings have a disproportionate impact on poor, vulnerable and/or disadvantaged parents and children. In the present case, the respondent is an Indigenous, single mother with a drug addiction, and a t the heart of this appeal lies a simple, but important, complaint: The respondent believes that she has not been heard. [ 124 ] I agree with Manitoba’s submission that, in appropriate cases—particularly where a permanent order is being sought—a parent should be given an opportunity to testify. But that does not necessitate a conventional trial. The

summary judgment process is

sufficiently flexible to accommodate oral testimony and, in an appropriate case, a motion judge has the discretion to permit oral evidence from a parent and/or a child. The Respondent’s Specific Concerns [ 125 ] The respondent argues that she was entitled to a hearing under

Part III of the CFSA and that there was no need to employ the

summary judgment process. [ 126 ] For my part, I do not see the two procedures as mutually exclusive. Nor do I see a substantive difference between an informal hearing under

Part III of the CFSA and a

summary judgment motion. [ 127 ] It is also my view that all of the procedural concerns identified by the respondent are addressed in the existing

summary judgment process. [ 128 ] In her written submissions, the respondent argued that the process is not fair because the onus and burden of proof shifts to the parent, and the standard of proof is lowered. This argument was not pursued in oral submissions and, for the reasons previously given, it has no merit. [ 129 ] At the appeal hearing, the respondent raised four specific concerns with respect to the use of

summary judgment in family proceedings: 1. that the time set for a

summary judgment motion is limited to one hour; 2. after the initial appearance before an intake judge, there is no

summary judgment conference to deal with evidentiary issues; 3. a responding party in a family proceeding does not know the case that he or she must meet; and 4. that the motion is conducted on an affidavit basis and neither the parties nor the witnesses provide viva voce evidence. [ 130 ] In my view, these concerns are also unfounded and without merit. [ 131 ] There is no restriction in the Queen’s Bench Rules concerning the time allocated for a

summary judgment motion. Clearly, the amount of time required will vary from case to case and will initially be in the discretion of the intake judge and will ultimately be in the discretion of the motion judge. The amount of time will also be a consideration when the intake judge initially addresses (and the motion judge ultimately decides) whether a

summary judgment motion is proportional in the circumstances of the particular case. [ 132 ] The present motion was initially set for a full day, and was subsequently set for a half day. [ 133 ] The failure to conduct a

summary judgment conference in child protection proceedings is a “red herring” and of no consequence. Although

summary judgment conferences do not form part of the

summary judgment process for family proceedings, I am satisfied that the intake hearing process in child protection proceedings provides a similar screening function. [ 134 ] Similarly, I see no merit to the submission that a parent does not know the case he or she has to meet at a

summary judgment motion. [ 135 ] While section 32(3) of the CFSA provides that the discovery process does not apply in child protection proceedings, this Court has held that the timely provision of adequate particulars is critical to ensure a prompt and fair post-apprehension hearing.

At a minimum, the particulars must inform the parents of the case against them and must be sufficient to allow the parents to effectively respond to the agency’s case (see NCNFCS & ANCR v KB , 2018 MBCA 1 at paras 25 , 27; and Dakota Ojibway Child and Family Services v KRF et al , 2018 MBCA 104 at paras 36-38 ). [ 136 ] In a child protection proceeding, the New Model requires that an intake brief be filed four days in advance of the intake hearing. The intake brief contains a detailed

summary of the evidence to be adduced by the parties. Evidentiary issues should be addressed in the intake brief and at the intake hearing. In many cases, including the present case, orders are made by the intake judge for the production of records. Parties are encouraged to address evidentiary issues in the intake brief or at the intake hearing and, where a

summary judgment motion has been filed, the parties would be ill-advised not to do so. [ 137 ] As noted previously, the Agency described in its intake brief the reasons for G.H.’s apprehension, its concerns, the reasons it was seeking a permanent order and its plan. In addition, prior to the

summary judgment motion, the respondent received the Agency’s affidavit material and its motion brief. In my view, it cannot be said that the respondent did not know the case she had to meet. [ 138 ] The respondent argues that, at a conventional trial, or a hearing under

Part III of the CFSA , she would have had an opportunity to adduce oral evidence and to cross-examine witnesses. [ 139 ] The reality is that the respondent could have adduced evidence and/or cross-examined witnesses at the

summary judgment hearing, but chose not to do so.

Section 37 of the CFSA specifically allows a motion judge to order oral testimony and to permit cross-examination on affidavits. In addition, r 39.03 could have been used to examine witnesses on a motion, either in or outside of court (see also r 70.30). While it is true that the ability to cross-examine and call witnesses is subject to the exercise of a judge’s discretion, that discretion must be exercised judicially and is subject to review.

[ 140 ] Significantly, the respondent did not identify any additional evidence that she wished to introduce nor did she explain how it might have affected the outcome, and there was no reason to believe that there would have been better evidence at trial (see Hryniak at para 58 ). The Kawartha-Haliburton Decision [ 141 ] Of particular significance in the context of the present appeal is the Ontario Court of Appeal decision in Kawartha- Haliburton Children’s Aid Society v MW , 2019 ONCA 316 . In that decision, the mother consented to a

summary judgment motion seeking Crown wardship, but sought access. The Court allowed the appeal from a decision denying access, on the basis that the test for access had changed, that the Divisional Court failed to make a finding as to the children’s Indigenous status and that the record before the Court was insufficient. [ 142 ] Benotto JA, writing for the Court, said that it is necessary to take a cautious approach to

summary judgment in child protection matters. She found that the “Divisional Court erred by misapplying the key principles regarding the use of

summary judgment, as articulated in Hryniak , to the specific circumstances of child protection proceedings” (at para 63). She went on to say that ( ibid ): Decades of jurisprudence – before and after Hryniak – have emphasized that fairness in a child protection

summary judgment motion necessitates caution and the need for the court to take into account special considerations. The Divisional Court turned its back on that jurisprudence and, in so doing, erred. [ 143 ] She further wrote (at para 76): Hryniak emphasizes that there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment: at para. 49. As applied to child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage Charter rights for a vulnerable segment of our society. Consequently, courts have stressed the need to take a cautious approach to granting

summary judgment in child protection proceedings. This cautious approach promotes Hryniak’s principle of reaching a fair and just determination on the merits. [ 144 ] Although the Court advocated a cautious approach, it referred the matter back to the Superior Court on an expedited basis “for a hearing either by way of

summary judgment or mini-trial” (at para 81). [ 145 ] The Court, quoting directly from Children’s Aid Society of Toronto v BB , 2012 ONCJ 646 at para 25 , stated that the

summary judgment procedure in Ontario is “designed to winnow out cases that have no chance of success” (at para 78). That view was specifically rejected by the Supreme Court of Canada in Hryniak : “the amendments are designed to transform Rule 20 from a means to weed out unmeritorious claims to a significant alternative model of adjudication” (at para 45) (emphasis added). [ 146 ] Indeed, given the particular and unique imperatives that attach to child protection proceedings following an apprehension (i.e., the moral and temporal imperatives in respect to both the apprehended child and the parents) and given the informal and

summary hearings contemplated by the CFSA , the

summary judgment procedure will, in many cases, represent the best process because of its consistency with the CFSA and its coherence with the principles set out in Hryniak . Implicit in Kawartha-Haliburton is the view, expressed as a caution, that even with a proper initial assessment, the

summary judgment process cannot ensure a fair and just determination in a prompt and proportionate manner. I disagree. [ 147 ] The decision also fails to recognise that the test for

summary judgment changed from a genuine issue for trial to a genuine issue requiring a trial and that Hryniak signalled the need for a culture shift. The simple truth is that a conventional trial “is not a realistic alternative for most litigants” ( Hryniak at para 4 ). As I said in HH (at para 84): 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. [ 148 ] Nor do I agree with the view expressed in Kawartha-Haliburton that, in child protection cases, a “court should not give weight to evidence on a

summary judgment motion that would be inadmissible at trial” (at para 78, quoting Children’s Aid Society of Toronto at para 25). In my view, there will be cases where such evidence could properly be considered. [ 149 ] While many courts in Ontario apparently require a “trial-worthy standard” for the admission of evidence in child protection cases that proceed by way of

summary judgment, the practice would appear to be inconsistent ( Catholic Children’s Aid Society of Toronto v CG , 2018 ONCJ 193 at para 11 ). For example, some courts allow

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