Child and Family Services of Western Date:, 2019 MBCA 92

Citation: Child and Family Services of Western Date: 20190906 Manitoba et al v LAN, 2019 MBCA 92 Docket: AH18-30-09056 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice William J. Burnett Madam Justice Karen I. Simonsen BETWEEN : ) K. L. Webb CHILD AND FAMILY SERVICES OF ) for the Appellant WESTERN MANITOBA ) ) (Petitioner) Respondent ) J. D. Cram ) for the Respondent - and - ) ) L. A. N. ) D. L.

Carlson ) for the Intervener (Respondent) Appellant ) ) - and - ) Appeal heard: ) January 28, 2019 THE ATTORNEY GENERAL OF ) MANITOBA ) ) Judgment delivered: Intervener ) September 6, 2019 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 ). BURNETT JA Introduction [ 1 ] The respondent appeals an order granted following a

summary judgment proceeding, appointing the petitioner (the Agency) as the permanent guardian of her then 15-year-old daughter (A.N.). [ 2 ] The focus of the appeal is whether the use of a

summary judgment proceeding violated the respondent’s right to a fair hearing under

section 7 of the Canadian Charter of Rights and Freedoms (the Charter ). [ 3 ] That issue is considered in the companion appeal, released concurrently, in Dakota Ojibway Child and Family Services et al v MBH , 2019 MBCA 91 ( MBH ). [ 4 ] For the reasons which follow, the appeal is dismissed. Background [ 5 ] The respondent had involvement with the Agency since 2011, mostly due to mental-health issues. She admits that she has post-traumatic stress disorder, anxiety, depression and borderline personality disorder, and that she has had some or all of these issues most of her life.

The respondent’s history with the Agency and related issues are described in the motion judge’s decision. [ 6 ] On June 9, 2016, the respondent and A.N. consented to an order that A.N. be made a temporary ward of the Agency. [ 7 ] On December 5, 2016, the Agency applied for a further order of temporary guardianship.

[ 8 ] A four-day trial was scheduled for April 3-6, 2018. [ 9 ] A pre-trial conference was held on December 12, 2017. At the pre-trial conference, the Agency advised that it intended to call 11 witnesses at trial (and perhaps more), and the respondent contemplated as many as six witnesses. [ 10 ] The Agency also advised that it intended to bring a motion for

summary judgment seeking a permanent order of guardianship. The respondent did not object to the proposed motion. The pre-trial conference judge set the motion down for hearing on February 26, 2018. [ 11 ] In support of the motion, the Agency filed an affidavit from a psychologist together with his report, as well as affidavits from an Agency worker and a police officer. [ 12 ] The respondent filed an affidavit responding to a number of statements made by the Agency worker in her affidavit.

In addition, the respondent stated that she was again attending a skills training group (which focusses on reducing suicidal or life- threatening behaviours and helps participants to address coping skills deficits) and that she was attending counselling with a mental- health worker. [ 13 ] A letter from the mental-health worker was attached to the respondent’s affidavit.

In the letter, the mental-health worker confirmed that she had met with the respondent four times, that during the meetings the respondent presented as stable and that she had “no current immediate concerns.” [ 14 ] In its motion brief, the Agency said that the plan was for A.N. to remain in long-term foster care where she had been living for over two years, that there was no plan for adoption, and that visitation between the respondent and A.N. could continue as long as it was in A.N.’s best interests.

In addition, the Agency said that, because the plan did not include adoption, the respondent would have the right to apply to terminate any permanent order of guardianship within one year. [ 15 ] In her motion brief, the respondent took the position that a

summary judgment motion was not appropriate to determine an order of permanent guardianship except in the rarest of situations, and that this case was not one of those situations. [ 16 ] The respondent submitted that, for a matter as serious as a permanent order, a parent must have the right to test the evidence viva voce at trial and to require the Agency to prove its case. The respondent said that she had been unable to

schedule cross- examinations, including the cross-examination of the psychologist “whose report is fundamental to the agency’s case.” Because the motion was being heard approximately five weeks before the start of the trial, the respondent argued that the motion was no more timely than a full adjudication at trial. The respondent also submitted that, because the hearing could result in the termination of parental rights, a four-day trial was proportional, protected the respondent’s Charter rights and was not a waste of judicial resources. [ 17 ] An amicus curiae was appointed to represent A.N.

A.N. was in agreement with the Agency’s application for permanent guardianship. [ 18 ] A.N., through her amicus curiae , said that she preferred a permanent order of guardianship because she had been in and out of foster care for many years, and she believed that a permanent order would provide her with certainty and stability. [ 19 ] In its brief, the amicus curiae noted that: [A.N.] has attended approximately 15 different schools between kindergarten and Grade 10. She is getting good marks at her current school, and wishes to stay there until graduation.

She thinks if she had to leave her current school she might drop out rather than have to start again at another new school. [ 20 ] At the

summary judgment hearing, the respondent did not seek to cross-examine any witnesses or to adjourn the proceedings for that purpose. [ 21 ] On March 16, 2018, the motion judge issued his oral reasons and ordered that A.N. be made a permanent ward of the Agency. [ 22 ] On December 13, 2018, a notice of constitutional question was filed in this Court. In that notice, the respondent challenged the application of the

summary judgment rules (see Manitoba, Court of Queen’s Bench Rules , Man Reg 553/88 (the Queen’s Bench Rules ), r 20) to child protection proceedings under

Part III of The Child and Family Services Act , CCSM c C80 (the CFSA ) , specifically with regard to their application to orders of permanent guardianship. [ 23 ] The respondent takes the position that the

summary judgment process violates

section 7 and cannot be justified under

section 1 of the Charter . In particular, the respondent says that, in deciding to proceed by way of

summary judgment, the Court denied her right to a hearing in which the onus remained upon the Agency to prove its case; that, in denying a hearing under

Part III of the CFSA , she was denied her Charter right to fundamental justice; and that denying a hearing under

Part III was not appropriate or proportional where the outcome was a permanent order, given the termination of parental rights. The Motion Judge’s Decision [ 24 ] After briefly reviewing the affidavit evidence, the motion judge addressed a number of preliminary issues raised by the respondent. [ 25 ] The motion judge rejected the respondent’s argument that he should decline to order

summary judgment because there

was no

summary judgment conference. The motion judge observed that r 70.18.1 of the Queen’s Bench Rules provides that the rulerequiring such a conference does not apply to a

summary judgment motion in a family proceeding. Nevertheless, he was satisfied thatmost of the matters that would be considered at a

summary judgment conference were considered at the pre-trial conference. [26] The motion judge then considered the respondent’s principal argument that permitting a

summary judgment motion in achild protection matter is contrary to the principles of due process and procedural fairness. The motion judge noted that

section 36 of theCFSA does not guarantee a parent the right to a trial. Relying largely on this Court’s decision in Manitoba (Director of Child and FamilyServices) v HH and CG, 2017 MBCA 33 (HH), he concluded that

summary judgment is available in child protection proceedings,including proceedings where a permanent order is being sought. [27] Although the respondent did not file a notice of constitutional question in the Court below, the motion judge consideredthe respondent’s submission that

section 7 guarantees procedural fairness, and he rejected the argument that a

summary judgmentprocess cannot be procedurally fair. [28] The motion judge considered New Brunswick (Minister of Health and Community Services) v G (J), (SCC), [1999] 3 SCR 46; and Hryniak v Mauldin, 2014 SCC 7, and he concluded: The right in child protection matters enshrined in

Section 7 is the right to a fair hearing not a right to a trial. . . . The Queen’s Bench Rules permit the mother, through her lawyer, to cross-examine the affiants on their affidavits just as she would haveor could have done at trial. The fact that the mother has not done so, for whatever reason, does not equate to an inadequacy in the processthat is tantamount to procedural unfairness. . . . A process can be fair and just without the expense and delay of a trial and . . . alternative models of adjudication are no less legitimatethan the conventional trial. Accordingly there is no violation of the [respondent’s]

Section 7 Charter rights by permitting a

summaryjudgment application to proceed. [29] The motion judge said that, in HH, this Court “endorsed the

summary judgment applications in all civil or familydisputes including child protection matters”, and it was his view 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. Theresponding party has the ability to file its own evidence and to challenge the moving party’s evidence by cross-examination on affidavitsto show there is a genuine issue requiring a trial thus preserving the responding party’s right to a fair hearing as provided for in

Section 7of the Charter. There is therefore no violation of the [respondent’s] right to a fair hearing. [30] In deciding that

summary judgment proceedings are available in child protection matters, the motion judge said that hewas guided by the Hryniak decision, in particular paras 49-50, and the principle of proportionality. [31] The motion judge proceeded to consider whether there was a genuine issue requiring a trial, whether A.N. was in needof protection at the time of the hearing and, if so, the order that would be in A.N.’s best interests. [32] On the evidence before him, the motion judge was satisfied that the Agency had established a prima facie case thatA.N. remained in need of protection and that the respondent had failed to establish a genuine issue requiring a trial.

He was also satisfiedthat the Agency had established a prima facie case that a permanent order was in the best interests of A.N. and that the respondent hadnot demonstrated with evidence that there was a genuine issue requiring a trial. [33] The motion judge granted the Agency’s motion for

summary judgment, ordered that A.N. be made a permanent ward ofthe Agency and cancelled the trial dates. [34] At the respondent’s request, the motion judge granted a stay of his order pending appeal. In the interim, A.N. remainsin long-term foster care. Issues [35] The respondent raises three issues:

1. whether the use of the

summary judgment process violated the respondent’s

section 7 right to a fair and prompt hearing; 2. whether the motion judge erred in deciding that A.N. was, at the time of the hearing, a child who continued to be in need of protection; and 3. whether the motion judge erred in deciding that it was in the best interests of A.N. to appoint the Agency as the permanent guardian of A.N. Legislation, Standards of Review and Legal Principles [ 36 ] The relevant legislation, standards of review and legal principles are set out in MBH . The Parties’ Positions The Respondent’s Position [ 37 ] The respondent does not contest the use of

summary judgment proceedings where an agency is seeking a supervisory order or an order of temporary guardianship. However, where an agency is seeking a permanent order—one that terminates parental rights and may result in adoption—the respondent submits that the use of

summary judgment procedures is unconstitutional because it infringes a parent’s right to a fair hearing and is not proportional. In those circumstances, the respondent says that a viva voce trial is the appropriate and proportionate method of adjudication. [ 38 ] The respondent submits that there should have been a

summary judgment conference prior to the

summary judgment hearing; that she was denied the right to cross-examine; that the onus shifted from the Agency to her to prove that A.N. was not in need of protection and to establish that a permanent order was not appropriate; that there was insufficient evidence to determine if A.N. was in need of protection; that the motion judge misconstrued the totality of the evidence; and that an order of permanent guardianship was not appropriate. [ 39 ] According to the respondent, a four-day trial was exchanged for a half-day

summary judgment motion, a trial would have satisfied all of her Charter rights, including the right to object to hearsay evidence and the right to cross-examine witnesses, and it would have taken place five weeks after the hearing of the

summary judgment motion. [ 40 ] In oral submissions, counsel for the respondent confirmed that there would be no objection to an expedited hearing if: the affidavit evidence did not contain hearsay and was not based on information and belief; the parties were permitted an opportunity to cross-examine; there was no need to demonstrate a genuine issue requiring a trial; and the onus remained on the Agency throughout the process to prove its case on a balance of probabilities.

The respondent agreed that it would be acceptable for the judge at an expedited hearing to decide any issues relating to cross-examination and hearsay evidence. [ 41 ] Following the oral hearing, this Court allowed the parties to provide further written submissions in relation to Shannex Inc v Dora Construction Ltd , 2016 NSCA 89 ( Shannex ) ; Deren v SaskPower , 2017 SKCA 104 ( Deren ) ; and Weir-Jones Technical Services Incorporated v Purolator Courier Ltd , 2019 ABCA 49 ( Weir-Jones ) . [ 42 ] With reference to those authorities, the respondent made the following additional submissions: • the procedure for

summary judgment should be proportionate to the importance and complexity of the issues; • child protection proceedings are not equivalent to other forms of civil dispute because of the disparity in power between an agency and a parent, and the nature of the relief sought, namely, an order of permanent guardianship which terminates parental rights.

State interference in the rights of parents and children is not equivalent to a civil proceeding for the recovery of money; and • under the Queen’s Bench Rules , it is the responding party — a parent with far fewer resources and much less power than a state agency — who must show that there is a genuine issue requiring a trial. The Agency’s Position [ 43 ] The Agency submits that

summary judgment is properly available in child protection proceedings, including proceedings where a permanent order is being sought. [ 44 ] The Agency says that the principles of procedural fairness entitle the respondent to a fair hearing, but not necessarily to a full viva voce trial. [ 45 ] In response to the respondent’s specific complaints, the Agency says: • although the rules requiring a

summary judgment conference are not applicable to family proceedings (see r 70.18.1 of the Queen’s Bench Rules ), the issues to be canvassed at such a conference were in fact canvassed by the pre-trial judge; • cross-examination is clearly contemplated by the CFSA and the Queen’s Bench Rules , but the respondent did not seek to cross- examine anyone; • timelines were agreed upon at the pre-trial conference for the production of affidavit evidence that allowed the opportunity to cross-examine, but the respondent did not take advantage of that opportunity.

This included the expert evidence of the psychologist; • the evidence of the Agency worker was largely direct evidence (not hearsay), and the respondent did not raise any objection to hearsay evidence at the hearing before the motion judge. In the absence of any objection, the motion judge was entitled to give such weight to any hearsay evidence as he deemed appropriate;

• the motion judge considered all of the evidence, and the respondent is not able to point to any misapprehension of fact made by the motion judge. In the absence of any palpable and overriding error, his findings of fact should not be disturbed; • in this case, there is not an absolute termination of parental rights. The Agency’s plan did not include adoption and did include ongoing visitation between the respondent and A.N.

The respondent retained the right, one year from the date of the order, to apply to have the order set aside and to have A.N. returned to her care; and • the respondent did not present any plan for the return of A.N. to her care. [ 46 ] At the appeal hearing, the Agency relied upon the lower Court’s decision in MBH (see Dakota Ojibway Child and Family Services v MBH et al , 2018 MBQB 142 ); and r 70.02.1(2) of the Queen’s Bench Rules , which provides: 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. [ 47 ] The Agency submits that the motion judge correctly decided—on the evidence before him and on a balance of probabilities—that A.N. was in need of protection and a permanent order of guardianship was in her best interests, and that, in making these decisions, the respondent was not denied a fair hearing. [ 48 ] The Agency emphasised that a lawyer was appointed to represent A.N. and that A.N. was in agreement with an order for permanent guardianship. [ 49 ] The Agency also provided further written submissions in relation to its analysis of Shannex , Deren and Weir-Jones . [ 50 ] The Agency notes that r 50 of the Queen’s Bench Rules sets out the powers vested in a pre-trial judge.

In particular, a pre-trial judge may: make an order for motions to be brought by a specified date (including a

summary judgment motion); establish timelines; order that certain motions not proceed; order that a separate trial of a claim or an issue take place; and order that evidence at trial be brought in whole or in part by affidavit (see r 50.05(4)). The Agency says that all of these options were available to the pre-trial judge when he set the date for the

summary judgment motion and established timelines for the preparation and production of affidavits. [ 51 ] The Agency acknowledges that the

summary judgment conference provisions in r 20 of the Queen’s Bench Rules do not apply to child protection proceedings. The Agency submits that a judge is involved at the intake conference and that this serves the same function as a

summary judgment conference. At the intake conference, the judge will decide if the matter should proceed by way of

summary judgment or go to trial. If the determination is that the matter should proceed to trial, the intake judge decides what evidence can proceed by way of affidavit, what documents can go in by consent and what witnesses will need to testify at trial. [ 52 ] The Agency submits that the ultimate burden remains on 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. [ 53 ] The Agency says that, in this case, the respondent need only have provided evidence that she was receiving the treatment she needed, the specifics of that treatment, and evidence that she would be able to complete the treatment successfully in a timeframe that was in A.N.’s best interests.

All of this evidence would have been within the respondent’s control. [ 54 ] Finally, the Agency says that Hryniak signalled a “culture shift . . . to create an environment promoting timely and affordable access to the civil justice system” (at para 2) and that child protection proceedings, including applications for a permanent order, should not be excluded from this new approach. Manitoba’s Position

[ 55 ] The intervener (Manitoba) intervened on appeal pursuant to the notice of constitutional question. Manitoba’s submissions were confined to the constitutional issues and were essentially the same submissions made in MBH (see paras 61-67 ). [ 56 ] In addition to the submissions made in MBH , Manitoba says that, while a decision to permit cross-examination is discretionary, a judge must exercise that discretion judicially, bearing in mind the requirement for a fair and prompt hearing.

Generally speaking, a parent is entitled to cross-examine a deponent (see Catholic Children’s Aid Society of Toronto v ADM , 2016 ONCJ 742 at para 29 ). Whether this takes place in advance of the hearing, outside of court, or at the hearing before the judge, it is a procedural matter that can be resolved on a case-by-case basis. [ 57 ] Manitoba further submits that the admissibility of hearsay evidence, and the weight to be given to such evidence, are matters properly left in the discretion of the hearing judge. Analysis and Decision [ 58 ] In my view, the motion judge correctly determined that

summary judgment is available in child protection proceedings, including proceedings where a permanent order is being sought, and that, in the circumstances of this case, there was no genuine issue requiring a trial. A.N. was in need of protection and a permanent order was in her best interests.

Summary Judgment is Available in Child Protection Proceedings [ 59 ] In MBH , this Court determined that

summary judgment is appropriate in some, but not all, child protection proceedings, including proceedings for a permanent order of guardianship. [ 60 ] The question is whether a

summary judgment motion is a fair and just method of adjudication in the circumstances of the particular case. [ 61 ] To answer that question, the judge must decide whether the

summary judgment process will allow him or her to make the necessary findings of fact and to apply the law to the facts, and whether it is a proportional approach, that is, a more expeditious and less expensive means to achieve a just result than going to trial (see Hryniak at paras 4, 49-50 ). [ 62 ] As stated in Hryniak and MBH , what is fair and just involves a contextual analysis and turns on the nature of the issues, the nature and strength of the evidence and what is the proportional procedure in each case (see Hryniak at para 59 ; and MBH at paras 95, 155 ). Was a

Summary Judgment Motion Appropriate in This Case? [ 63 ] I am satisfied that the pre-trial conference served essentially the same purpose as a

summary judgment conference or an intake hearing. At the pre-trial conference, the respondent did not object to the

summary judgment motion, she did not indicate that she wished to cross-examine or that she wished to adduce oral evidence. [ 64 ] There is no question that the interests at stake in this case were very serious — the Agency was seeking a permanent order of guardianship — and that the

section 7 rights of the respondent and A.N. were engaged. [ 65 ] The motion judge was well aware of the serious nature of the proceedings, and he observed that

section 7 guarantees every parent the right to a fair hearing when the state seeks to obtain custody of their children. [ 66 ] While it is true that the respondent took issue with some of the statements made by the Agency worker, the bulk of the Agency’s evidence was largely undisputed and/or admitted. [ 67 ] The respondent did not raise any objection to hearsay evidence at the hearing before the motion judge. On appeal, she did not identify any error of fact made by the motion judge, and she did not suggest that the evidence at trial would have been any different than the evidence presented at the

summary judgment hearing. [ 68 ] Although the respondent was represented by counsel, she took no steps to adduce oral evidence, to cross-examine or to seek an adjournment for those purposes. [ 69 ] In these circumstances, there was no reason to believe that better evidence would have been available at trial (see Hryniak at para 58 ). [ 70 ] There was also no suggestion that the motion judge could not apply the law to the facts. The fundamental issue as to whether a permanent order should be made was extremely serious, but it was not complex. [ 71 ] Hryniak instructs that proportionality is to be assessed in relation to a full trial. The use of the

summary judgment process was clearly proportional when the relative efficiencies of proceeding by way of

summary judgment were assessed in relation to a trial (see para 58). Here, a full trial could have been conducted in a timely fashion, but it would have involved as many as 17 witnesses, it would have taken (according to the respondent) four days and it would have utilised considerable resources. [ 72 ] The respondent was unable to articulate any procedural advantage that she would receive at trial. Her concerns with respect to a shifting onus were misplaced and are fully addressed in MBH . She could have asked the motion judge to exercise the powers contemplated by rr 34, 39 of the Queen’s Bench Rules ; and

section 37 of the CFSA . As explained in Hryniak and MBH , if exercised, those powers would have permitted the respondent to adduce oral evidence, to cross-examine witnesses and to make submissions regarding the weight to be given to hearsay evidence. [ 73 ] In these circumstances, the motion judge did not err when he concluded that the use of a

summary judgment motion in the circumstances of this case was consistent with the principles of fundamental justice.

Was A.N. in Need of Protection? [ 74 ] The respondent says that the motion judge erred when he decided that A.N. continued to be in need of protection. The respondent does not dispute that the evidence supports that finding, but says that the determination should not be made in a

summary judgment proceeding.

For the reasons previously given, I disagree. [ 75 ] The motion judge found that the respondent’s failure to seek out and complete adequate treatment was concerning and had impacted her ability to parent: The failure of the [respondent] to seek and complete adequate treatment resulted in a parent who is unable or unwilling to provide adequate care or supervision of [A.N.], endangers the emotional well-being of [A.N.] and results in a child that is likely to suffer harm due to behaviour, condition, domestic environment or associations of a person having care of [A.N.]. [ 76 ] The motion judge concluded that the Agency had satisfied its burden to establish that there was no genuine issue requiring a trial as to whether A.N. was in need of protection at the time of the hearing.

The respondent failed to demonstrate why a trial was required. [ 77 ] In my view, the motion judge did not err when he concluded that A.N. was in need of protection at the time of the hearing.

Did the Motion Judge Err in Appointing the Agency as Permanent Guardian? [ 78 ] Once again, the respondent does not dispute any of the factual findings made by the motion judge. [ 79 ] The respondent did not present any plan for the return of A.N. to her care. [ 80 ] At the time of the hearing, A.N. was 15 years old, and she supported the Agency’s application for an order of permanent guardianship. [ 81 ] The motion judge was also satisfied that there was no genuine issue as to whether a permanent order was in A.N.’s best interests: Even if one were to ignore the time available under a temporary order and assuming the [respondent] entered into the dialectical behaviour therapy model for the next year [A.N.] would be approaching 17 years of age and the [respondent] at that time might be at best amenable to beginning parenting intervention programs [but would not be] a person who would be ready to assume appropriately empathic parenting.

The [respondent’s] plan to have [A.N.] returned to her care at the end of the school year is simply not realistic. The amicus report also supports the finding of a prima facie case where a permanent order would be in the best interests of [A.N.] and if for nothing else then the recognition by [A.N.] of the stability and predictability that such an order would provide. . . . The [respondent] has not adduced any evidence as to where [A.N.] would be residing or which school [A.N.] would be attending if [A.N.] was returned to her.

More importantly and perhaps to repeat the concern there is no evidence that the [respondent] has or will undertake the necessary treatment should a further temporary order be pronounced. [ 82 ] The motion judge concluded that A.N.’s best interests were the paramount consideration and, on the evidence before him, he granted the Agency’s motion for

summary judgment and made an order appointing it as the permanent guardian of A.N. [ 83 ] Having made no error, there is no basis for appellate intervention. Accordingly, the appeal is dismissed. JA I agree: JA

I agree: JA