Director of Child and Family Services v CLO and BJN, 2022 MBCA 92

Citation: Director of Child and Family Services v CLO and BJN, 2022 MBCA 92 Date: 20221114 Docket: AH22-30-09738 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Madam Justice Diana M. Cameron Madam Justice Janice L. leMaistre BETWEEN : ) K. J. Janovcik and ) R. J. Nolan ) for the Appellant the director of child AND FAMILY ) SERVICES ) M. L. Mitchell ) for the Respondent ( Petitioner) Appellant ) C. L. O. ) ) No Appearance - and - ) for the Respondent ) B. J. N. ) C. L. O. and B.

J. n. ) Appeal heard and ) Decision pronounced: ( Respondents) Respondents ) October 31, 2022 ) ) Written reasons: ) November 14, 2022 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 ). Beard JA (for the Court) : I.

THE ISSUES [ 1 ] The petitioner, the Director of Child and Family Services (the DCFS), is appealing from a final order under The Child and Family Services Act , CCSM c C80 (the Act ) (the final order), related to the apprehension of the respondents’ child. The appeal raises two issues: (

i) whether the trial judge acted outside of his jurisdiction in making an order that does not comply with the requirements of the Act , and in particular, section 38(1) , resulting in an unlawful order; and (ii) whether the appeal should be dismissed on the basis that events subsequent to the granting of the final order have rendered the issues between the parties moot. [ 2 ] We dismissed the appeal on the basis that the issues between the parties had become moot, with brief reasons to follow.

These are those reasons. [ 3 ] The DCFS’s position is that, after finding that the child was not in need of protection, either at the date of apprehension or at the date of the hearing, the trial judge then imposed conditions on the respondent, C.L.O., (the mother). It argues that, under the Act , conditions can only be imposed if there has been a finding that a child is in need of protection. It states that, if there is a finding that a child is not in need of protection, the Court has no jurisdiction to impose any conditions, and the child must be returned

immediately and without conditions.

In support of its position, it refers to section 38(1) of the Act and this Court’s decision in WinnipegChild and Family Services v D (KA) (1995), (MB CA), 125 DLR (4th) 255 at 259-61 (Man CA) (D (KA)). [4] The mother’s position is that the trial judge did not impose any conditions after finding that the child was not in needof protection; rather, after finding that there was no need for protection, the trial judge restored the terms of the voluntary agreementbetween the mother, her parents and the DCFS that was in effect when the child was apprehended. [5] The issue of mootness arises because, after the final order was granted, the mother was convicted of a very seriouscriminal offence and was immediately taken into custody.

The mother agreed, as do we, that the evidence put forth by the DCFS toprove that conviction should be admitted for the purpose of determining the issue of mootness.

Thus, we admitted the evidence for thatpurpose. [6] Further, it is not disputed that, while the mother has not yet been sentenced, the offence carries a lengthy mandatoryminimum sentence and she will be serving a very lengthy period of incarceration. [7] The DCFS agreed that the conviction has rendered the appeal moot as between the parties, but its position is that theerror of law in the final order remains outstanding and should be corrected due to its precedential effect. II.

THE LAW [8] The leading case related to the doctrine of mootness is Borowski v Canada (Attorney General), (SCC), [1989] 1 SCR 342, a decision that has been applied by this Court on many occasions (see, for example, The Director of Child andFamily Services v JG and KB, 2017 MBCA 27). [9] Sopinka J, writing for the Court, explained that the doctrine of mootness applies when a decision by a court “will nothave the effect of resolving some controversy which affects or may affect the rights of the parties” (at p 353).

He stated that “[i]f thedecision of the court will have no practical effect on such rights, the court will decline to decide the case” (ibid). Further, a case willbecome moot if events subsequent to the initiation of the action result in there no longer being a live controversy between the parties(see pp 354-56). [10] That is not the end of the issue, however, as a court has discretion to hear a moot appeal in certain circumstances.

Thus,Sopinka J explained that the doctrine should be applied in a two-step process: first determining whether the matter is moot and, if so,whether the Court should exercise its discretion to hear the matter, notwithstanding that it is moot (see p 353). [11] Sopinka J stated that there is no clear set of criteria to determine when that discretion should be exercised; rather, heproposed the following rationalia as guidelines for exercising the discretion (see pp 358-63): (

i) is there an adversarial context, that is,will the moot issue be fully argued (see pp 358-60); (ii) are there special circumstances that overcome the need for judicial economy—that is, that make it worthwhile to apply scarce judicial resources to resolve the moot issue (see pp 360-62); and (iii) will the decision,made in the absence of a live dispute, intrude on the role of the legislative branch of government (see pp 362-63). III.

ANALYSIS [12] The DCFS has acknowledged that the appeal is moot; what is at issue is whether this Court should exercise itsdiscretion and decide the appeal notwithstanding that the outcome will have no effect as between these parties. [13] The mother is present and prepared to argue the appeal; thus, the first rationale is satisfied.

The question is reallywhether there are special circumstances that make it worthwhile to apply scarce judicial resources to resolve the moot issue in this case;that is, whether the second rationale can be satisfied. [14] The DCFS argues that the special circumstance that overcomes the usual practice of refusing to hear moot appeals is thefact that this appeal raises a question of law that should be resolved to ensure that the erroneous order does not become a precedent forfuture cases. [15] In looking at special circumstances, Sopinka J referred to the following factors: (

i) whether the decision would havesome collateral, practical effect on the parties’ rights apart from the immediate controversy that has become moot (see Borowski at p360); (ii) whether the issue is of a recurring nature but a brief duration, like an interim injunction, such that it will always havedisappeared before it is ultimately resolved (see pp 360-61); and (iii) whether the issue is of sufficient public importance to justify thejudicial cost of determining the issue (see pp 361-62). [16] The first factor is not met, as the decision will have no collateral, practical effect on the rights of the parties. [17] On the second factor, Sopinka J stated that even the likely, frequent recurrence of the issue should not, by itself, be areason for hearing an appeal that is moot, unless the dispute is one that will always have disappeared before it has been resolved (see p361).

In the present case, there was no evidence that the error of law that is alleged is a frequent recurrence. Further, the alleged errorrelates to a final order, so it will not always have disappeared before it can ultimately be resolved. Thus, the second factor is not met. [18] The third factor involves a weighing of the social cost of continued uncertainty in the law against the economics ofjudicial involvement. While the DCFS argues that this is a simple question of law, the issue is more complex than that.

The motherdisagrees as to whether the trial judge was imposing conditions or merely restating the obligations by which she had agreed to abideprior to the apprehension. We are of the view that neither the record nor the final order is clear in that regard.

[ 19 ] Further, while the DCFS raises a concern about the precedential effect of the decision and the final order now under appeal, it has not pointed to any jurisprudence that calls into question this Court’s

interpretation of

section 38, as set out in D (KA) , or otherwise suggests that the law is unsettled or requires clarification. [ 20 ] Given that there is no evidence that the alleged error is either frequent or recurring, that the effect of the decision and final order is unclear, and that the law is not unsettled, we conclude that there was insufficient social cost in refusing to determine the appeal to justify the judicial cost of doing so.

Thus, the third factor is not met. [ 21 ] The third rationale, being the potential for intrusion into the role of the legislative branch of government, is not at issue in this appeal. [ 22 ] For these reasons, we conclude that there were no special circumstances or other rationalia that would lead us to exercise our discretion to decide this appeal on its merits. In so concluding, we are not endorsing either the trial judge’s decision or the final order that was consented as to form by the parties and signed by the trial judge.

It goes without saying that it would have been better if the terms of the final order had been clarified with the trial judge before it was entered. IV. DECISION [ 23 ] For these reasons, we dismissed the appeal at the hearing. [ 24 ] Neither party addressed the issue of costs, so we are making no order in that regard. If the mother wishes to request costs, that should be addressed by way of a letter to the Court, with a copy to the DCFS, which can reply in writing. JA JA JA