2023 MBCA 82, 2023 MBCA 82

Citation: Metis Child, Family and Community Services v CPR et al, 2023 MBCA 82 Date: 20230926 Docket: AH22-30-09736 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Madam Justice Karen I. Simonsen Madam Justice Lori T. Spivak BETWEEN : METIS CHILD, FAMILY AND ) C. A. Kennedy COMMUNITY SERVICES ) for the Appellant ) (Petitioner) Respondent ) B. M. Bogucki and ) K. Wagar - and - ) for the Respondent ) Metis Child, Family and C. P. R. and S. J. M. ( Deceased ) ) Community Services ) (Respondents) Respondents ) D. J. Henderson ) for the Respondent - and - ) D. D. ) A. D. M. ) H. A.

Khan and ) E. C. Stevenson ( Guardianship Applicant) Appellant ) for the Intervener ) - and - ) Z. M. Jones ) as amicus curiae D. D. ) for the child A. D. R. ) (Guardianship Applicant) Respondent ) No Appearance ) for the Respondents - and - ) C. P. R. and ) S. J.

M. (deceased) PEGUIS CHILD AND FAMILY SERVICES ) ) Appeal heard: Intervener ) May 11, 2023 ) ) Judgment delivered: ) September 26, 2023 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 2021 MBQB 228 Cameron JA Introduction

[ 1 ] This is an appeal of an order granting guardianship of A.D.R. to D.D. (a former partner of A.D.R.’s deceased father) as opposed to her paternal aunt, A.D.M., in competing applications for guardianship. [ 2 ] Prior to the hearing of this appeal, the parties consented to an order appointing amicus curiae (amicus) to represent the best interests of A.D.R.

In turn, amicus filed a motion for fresh evidence, the admissibility of which is also the subject of this appeal. [ 3 ] One of the arguments in this case is whether An Act respecting First Nations, Inuit and Métis children, youth and families , SC 2019, c 24 [the federal Act ], applies to private guardianship applications made pursuant to

section 77 of The Child and Family Services Act , CCSM c C80 [the CFSA ], as repealed by The Family Law Act, The Family Support Enforcement Act and The Inter- jurisdictional Support Orders Amendment Act , SM 2022, c 15 ,

Schedule A, section 106(3) [the Amendment Act ]. Since the time of the trial, the CFSA has been amended. In these reasons, when I refer to sections of the CFSA , I am referring to the version that was applicable at the time of the trial, unless otherwise stated. [ 4 ] A.D.M. argues that the trial judge erred in finding that the federal Act does not apply to private guardianship applications.

The intervener, Peguis Child and Family Services (Peguis CFS), intervenes in this appeal only to the extent that it also argues that the federal Act applies to private guardianship applications. [ 5 ] For the reasons that I will later explain, it would not be appropriate for this Court to determine the applicability of the federal Act in this case. [ 6 ] Additionally, A.D.M. asserts that the trial judge failed to give adequate weight to the “foundations, objectives, intent and overarching principles” of the federal Act .

A.D.M. asserts this error resulted from misapprehensions of evidence and the drawing of conclusions that were not founded in the evidence. [ 7 ] A.D.M. also argues that, in applying the best interests test, the trial judge made erroneous assumptions and drew conclusions that were not supported by the evidence, thereby committing palpable and overriding error. [ 8 ] I am not persuaded that the trial judge misapprehended the evidence or made a palpable and overriding error in the facts he found and the inferences he drew.

Neither am I convinced that he made a material error in applying the principles of the federal Act or the best interests test. [ 9 ] Another issue involves the consideration to be given to the views of the child in proceedings such as this. Given the circumstances and age of A.D.R., the trial judge attributed little weight to her intermittently stated desire to live with A.D.M.

In my view, it was within his purview to do so given the facts of this case. [ 10 ] The fresh evidence sought to be admitted includes the expression of A.D.R.’s preference to live with A.D.M., as well as events that have occurred since the conclusion of the trial.

As I have not been convinced that the trial judge erred in granting the order of guardianship to D.D., it is my view that the fresh evidence sought to be adduced is not admissible on the basis that it is more appropriate for it to be considered in a variation proceeding, as explained in Barendregt v Grebliunas , 2022 SCC 22 [ Barendregt ]. [ 11 ] For the reasons that follow, I would dismiss the motion for fresh evidence and the appeal. Background [ 12 ] A.D.R. is an Indigenous child who is eligible for legal status and membership with Peguis First Nation (Peguis FN) through the paternal side of her family.

At the time of trial, an application for status under the Indian Act , RSC 1985, c I-5 [the IA ] had been filed by the petitioner, Metis Child, Family and Community Services (MCFCS), on behalf of A.D.R. and was pending. [ 13 ] A.D.R. was nine years of age when the trial started and had turned 10 by the time the trial judge pronounced his decision. [ 14 ] S.J.M. was A.D.R.’s father. He is deceased. C.P.R. is her mother. C.P.R. does not wish to care for A.D.R. [ 15 ] The guardianship applicant, D.D., is a former partner of S.J.M.

They were involved in a relationship prior to that of S.J.M. and C.P.R. and before A.D.R. was born. During their relationship, D.D. and S.J.M. had a daughter, K. She is the adult half-sister of A.D.R. Despite their breakup, D.D. maintained a relationship with S.J.M., which resulted in her caring for A.D.R. at various times. She applied for guardianship of A.D.R. in early March 2021. [ 16 ] The guardianship applicant, A.D.M., is S.J.M.’s sister. She is the paternal aunt of A.D.R. She resides in British Columbia where she has lived since 2017. Prior to 2017, she would also care for A.D.R.

Peguis FN is A.D.M.’s home community and she has status under the IA . She applied for guardianship of A.D.R. in January 2021. [ 17 ] A.D.R. was first apprehended by MCFCS in December 2013 from the custody of S.J.M. and was returned to him in August 2014. She was apprehended from him again in September 2018. [ 18 ] Between 2014 and 2018, A.D.R. was not under the care of MCFCS. However, she was in and out of S.J.M.’s care many times. S.J.M. suffered from addiction issues. He would frequently leave A.D.R. with others in order to go out and party. Often, she was left with S.J.M.’s mother, P.M.

A.D.M. and K. assisted P.M. in providing care for A.D.R. [ 19 ] P.M. died in March 2016. [ 20 ] In 2014, S.J.M. became involved in a relationship with C.K. C.K. had also cared for A.D.R. periodically. S.J.M. and C.K. had one child together, born in 2015 (M.M.), who is a younger half-sister to A.D.R. [ 21 ] In the Fall of 2017, D.D. agreed to care for A.D.R. as S.J.M. was living in a hotel and unable to care for her. D.D.

enrolled A.D.R. in school and the child lived with D.D. and K. for about four months until January 2018 when S.J.M. requested her return. [ 22 ] A.D.R. was apprehended from S.J.M.’s care in September 2018. She was placed with K. This arrangement allowed D.D. to spend time with A.D.R. [ 23 ] S.J.M. died by suicide in April 2019. [ 24 ] The living arrangement with K. did not sustain. It ended when MCFCS decided to support C.P.R. in a reunification, resulting in MCFCS withdrawing its Petition and Notice of Hearing.

Sadly, the reunification was not successful and A.D.R. was placed under apprehension in September 2019. [ 25 ] A.D.R. was then placed with C.K. She lived with C.K. and M.M. until C.K. could no longer deal with A.D.R.’s behavioural issues. Also challenging was that A.D.R. suffered from a condition called encopresis, described as a form of “fecal incontinence.” This condition had commenced when A.D.R. was in S.J.M.’s care and was found to be due to emotional issues.

MCFCS had arranged for a therapist to assist A.D.R. [ 26 ] During the time that A.D.R. was in C.K.’s care, D.D. and K. would provide formal respite assistance. One or both of them cared for A.D.R. on many weekends. D.D. also provided respite assistance on an informal basis. [ 27 ] In December 2020, it became apparent that C.K. could no longer care for A.D.R. MCFCS held two meetings to make plans to decide where, and with whom, A.D.R. would live. Both D.D. and A.D.M. were present at those meetings. [ 28 ] A.D.M. had earlier expressed her desire for A.D.R. to reside with her in British Columbia.

However, a required, locally prepared, safe home assessment had not yet been completed. [ 29 ] Due to the fact that D.D. had been providing respite assistance to C.K., MCFCS decided to place A.D.R. in D.D.’s care on a short-term basis, commencing on January 1, 2021. [ 30 ] Post-placement, the evidence confirmed that A.D.R. did well, continuing to see her therapist.

She began seeing a specialist for her encopresis in January 2021. [ 31 ] While there were plans for regular video conferencing calls between A.D.R. and A.D.M., they did not go as planned, with D.D. often missing them. [ 32 ] As well, issues arose regarding visitation between A.D.R. and her younger half-sister, M.M. In both instances, MCFCS had to intervene to facilitate the calls and visits. [ 33 ] In February 2021, A.D.M. provided a safe home assessment, prepared in British Columbia, which supported her as a temporary placement.

However, MCFCS determined that it would be in A.D.R.’s best interests to remain with D.D. to complete the school year to June 2021. [ 34 ] At a further meeting held on March 4, 2021, MCFCS requested a comparative guardianship assessment between D.D. and A.D.M. No assessment occurred because A.D.M. refused to participate, stating that the safe home study was sufficient. [ 35 ] In July 2021, A.D.R. spent a month-long visit with A.D.M. and her family in British Columbia, after which, she returned to live with D.D. [ 36 ] The trial proceeded between September 27 and October 1, 2021.

The trial judge provided his decision on October 28, 2021. The Reasons of the Trial Judge [ 37 ] At trial, MCFCS supported A.D.M.’s application for guardianship over that of D.D. This was a relatively new development.

Up until the time shortly prior to the trial, MCFCS did not have a preference as between the competing applications of A.D.M. and D.D. [ 38 ] The trial judge stated that what tipped the balance for MCFCS was that it had assessed that A.D.M. had the greater capacity to ensure that A.D.R. would maintain a connection to her culture, community and extended family in the future. [ 39 ] A.D.M.’s guardianship application was supported by C.P.R. [ 40 ] Peguis FN provided a letter that was filed in the trial indicating its position that it would be in the best interests of A.D.R. to have A.D.M. become her guardian.

That letter referenced the federal Act . [ 41 ] In considering the applicable law, the trial judge reviewed section 2(1) of the CFSA , emphasizing that the best interests of the child be the paramount consideration in reaching his determination. As well, he reviewed the Declaration of Principles contained in the CFSA .

Those sections, as they existed at that time, are attached as Appendix A to these reasons. [ 42 ] In his review, the trial judge underscored the provisions dealing with cultural and linguistic heritage, the involvement of communities in the provisions of services and the entitlement of “Indian Bands . . . to the provision of child and family services in a manner which respects their unique status as aboriginal peoples” (at no 11). He stated (at para 23):

The CFSA , the Regulations made under it, as well as the Program Standards administered by the Director (under which mandated child and family services agencies in Manitoba provide services to families and children), emphasize the importance of culture, community and extended family to children. [ 43 ] In response to A.D.M.’s submission regarding the federal Act , the trial judge referred to a number of provisions in it, including the best interests of Indigenous children, representations from Indigenous governing bodies and priority of placement in the context of providing child and family services (see para 25).

He noted that he was not called upon to answer the question of the applicability of the federal Act in this case, but that he doubted whether it applied to a private guardianship application made under

section 77 of the CFSA . Nonetheless, when the issue arose during oral argument, he stated that it was his view that the underlying values and core principles giving priority and attaching value to the child’s cultural heritage were embedded in the CFSA and that he would pay heed to them. [ 44 ] In considering the best interests of the child, he stated that, in light of A.D.R.’s age and behavioural and emotional challenges, he did not place emphasis on her expressions of preference as between A.D.M. and D.D.

A.D.R. had expressed a preference to reside with A.D.M. at various times to her social worker (the social worker), although she did state to amicus counsel appointed to represent her best interests at the trial (trial amicus) (not the same amicus as in the appeal) that she had no preference. [ 45 ] Regarding A.D.R.’s culture and community, he referred to the letter provided by Peguis FN. He reviewed A.D.M.’s connection to it, noting that she had not visited the community since moving to British Columbia and that it was unclear when she last visited it before that.

He reviewed D.D.’s Indigenous heritage and her support of A.D.R. participating in a Metis day camp and involvement in Indigenous cultural programming at her school. He concluded that the evidence of culture and community did not command the result in A.D.M.’s favour, particularly in light of the move of A.D.R. to British Columbia being at the core of A.D.M.’s plan. [ 46 ] Next, the trial judge considered A.D.R.’s connection with D.D. and with Winnipeg, including that her two half-sisters reside in the City.

Here, he considered the progress that A.D.R. had made since being in the care of D.D., emphasizing the therapy she was receiving and the improvement with her encopresis. [ 47 ] The trial judge acknowledged the arguments made by MCFCS and A.D.M. regarding the difficulty and interpersonal conflict between A.D.M. and D.D., and the concern that D.D. would not facilitate contact with A.D.M. He also noted the concerns related to D.D. not facilitating visits between A.D.R. and M.M.

However, he stated that MCFCS’s position that personal animosities would lead D.D. to reject extended family contact, culture and community were speculation. [ 48 ] Finally, the trial judge reviewed the reports prepared regarding D.D. and A.D.R. He mentioned that a comparative assessment, such as had been suggested by MCFCS, would have benefitted the Court, but noted that A.D.M. did not wish to participate in the process. He was of the view that the safe home assessment she relied on was of limited value and raised concerns.

Regarding D.D.’s guardianship assessment report, he found it to be an “unqualified endorsement” (at para 101) of her guardianship application. [ 49 ] In the result, the trial judge found that it was in the best interests of A.D.R. that he pronounce a guardianship order in favour of D.D. Grounds of Appeal [ 50 ] Below is a

summary of A.D.M.’s grounds of appeal. She argues that the trial judge erred by: 1. failing to apply the federal Act to the competing guardianship applications; 2. failing to give adequate weight to the foundations, objectives, intent and the overarching principles of the federal Act ; 3. making unnecessary, unreasonable, erroneous and arbitrary assumptions and drawing conclusions not supported by the facts, resulting in an erroneous application of the best interests test; and 4. failing to give sufficient weight to the evidence regarding the views of the child or to take additional steps to ascertain them.

Ground 1—Did the Trial Judge Err in Failing to Apply the Federal Act ? Context [ 51 ] In order to give context to this ground of appeal, and to the trial judge’s statement that it was unnecessary for him to decide the applicability of the federal Act , it is necessary to review the portion of the transcript giving rise to the issue.

During the course of closing argument, counsel for A.D.M. parenthetically referred to Bill C-92, An Act respecting First Nations, Inuit and Metis children, youth and families , 1st sess, 42nd Parl, 2019 (assented to 21 June 2019) (which became the federal Act ) in support of her argument that her client should be awarded guardianship. The following exchange occurred between counsel and the trial judge:

[COUNSEL FOR A.D.M.]: I think it’s significant to note that Peguis Chief in Council has provided a letter in support of [A.D.M]. THE COURT: Yeah, I saw that. [COUNSEL FOR A.D.M.]: That Bill C-92 makes it very clear that we need to promote the cultural continuity of these children, that it’s essential to their well-being as part of a family and a part of an Indigenous group and an Indigenous community. THE COURT: Yeah. I -- I took note that [the social worker] identified Bill C-92 as one of the several reasons why [A.D.M.] was supported, and it’s not just a Bill anymore, of course.

It’s an Act respecting First Nations, Inuit and Métis children, youth and families . [COUNSEL FOR A.D.M.]: Of course. THE COURT: And I hate to do this, but I think I have to. Which is to raise a question, a legal question, about whether in a private guardianship application the Act , not in terms of its general spirit and intent but in terms of its specifics, has application. So

Section 16, priority and placement, for example, the language, as I recall it, is in the context of the provision of Child and Family Services. This is the placement priority, placement being a term of art that means placement by an agency in a particular home . So no doubt -- I haven’t heard evidence of this, but I have no doubt that [A.D.M.], who presents as intelligent and current on these issues, would have been advocating for placement in her home in part pursuant to this legislation, placement by the agency. . . .

But the larger issue is, number 1, does the Act apply specifically to private guardianship proceedings; and, number 2, does it matter whether it specifically applies, and I don’t think it really does.

I think the underlying values, the core principles are embedded in the [ CFSA ] and in -- and -- and for years has been, unbenounced to most people, embedded in the standards manual for the operation of all agencies in Manitoba, Winnipeg, CFS included, that that priority is given, that that value that’s attached to a child’s cultural heritage, whether they are at the moment connected to it or not, is critically important to the evolution of their identity and sense of self-worth.

On the one hand, I’m raising that I’m not sure the Act applies to this case, but I certainly acknowledge the underlying principles do, and - - and I intend to -- to pay heed to them in this case. [COUNSEL FOR A.D.M.] : And that would exactly be -- that would be my exact response to that. I -- I think that the underlying principles and the intent of this Act and how it outlines the best interests of the child, especially an Indigenous child, have to applied in -- in this situation whether its specific or not. I do -- [A.D.M.] had -- did provide evidence that she was advocating for the placement. THE COURT: Yeah.

Yeah. Oh, no, for the placement. I’m just saying I didn’t hear it explicitly as being that reliance was placed on the legislation . [emphasis added] [ 52 ] From the above, it is apparent that the trial judge was understandably under the impression that counsel was not arguing that the federal Act strictly applied to private guardianship applications.

Positions of the Parties [ 53 ] Given that I ultimately conclude that this is not the case to determine the applicability of the federal Act , I will only briefly summarize the positions of the parties and some of the case law they refer to for the purpose of highlighting some of the issues that have arisen. [ 54 ] A.D.M. argues that the federal Act was designed to address the intergenerational harms occasioned by child welfare systems that failed to recognize the importance of culture, identity, community and extended family, and that it should not be interpreted

in a narrow fashion. She argues that the Declaration of Principles and the definition of “best interests” in section 2(1) of the CFSA are not as inclusive as the “best interests of [an] Indigenous child” as defined in

section 10 of the federal Act , and that there is no priority of placement of an Indigenous child as found in

section 16 of the federal Act . These sections of the federal Act (as well as

section 9) have been added as Appendix B to these reasons. [ 55 ] A.D.M. acknowledges the Alberta cases of PPM (Re) , 2020 ABPC 243 [ PPM ]; and SL v Alberta (Child, Youth and Family Enhancement Act, Director) , 2021 ABPC 202 [ SL ].

In PPM , Ho J determined that the term “child and family services” in the federal Act refers to “services provided by government to assist families to protect the well-being of children” (at para 14) and not to private guardianship applications under the Family Law Act , SA 2003, c F-4.5 , including when the children are in the care of the respondent director under permanent guardianship (see paras 14-16).

Similarly, in SL at para 6 , he determined that the federal Act had no application to private guardianship applications made pursuant to Alberta’s Child, Youth and Family Enhancement Act , RSA 2000, c C- 12 [the CYFEA ]. [ 56 ] A.D.M. argues that these cases are distinguishable or wrongly decided. [ 57 ] In support of her argument, A.D.M. refers to DB (Re) , 2021 ABPC 140 , as evidence that courts in Alberta do not agree about whether the federal Act applies to private guardianship applications in Alberta.

In that case, the Blood Tribe was granted the right to make representations (subject to conditions) in a private guardianship application. [ 58 ] Peguis CFS agrees with the arguments of A.D.M. It further argues that the modern approach to statutory

interpretation and sections 12–13 of the

Interpretation Act , RSC 1985, c I-21 , support an inclusive

interpretation of the term “child and family services” in the federal Act that would include private guardianship orders. [ 59 ] In support of its argument, Peguis CFS refers to additional case law in Alberta wherein the Court allowed First Nations the right to participate and/or make submissions in private guardianship applications. In those cases, the Court either relied on the federal Act in support of its

interpretation of the CYFEA (see MM v Alberta (Child, Youth and Family Enhancement Act, Director) , 2021 ABPC 317 at paras 15-37 ) or indicated that the CYFEA must be read together with the federal Act (see RAB (Re) , 2020 ABPC 75 at para 24 (e)). [ 60 ] In addition, Peguis CFS refers to SK v Alberta (Child, Youth and Family Enhancement Act, Director) , 2022 ABPC 144 at paras 18–19 , which disagrees with previous decisions that the federal Act does not apply to private guardianship matters in Alberta. [ 61 ] Finally, Peguis CFS refers to the Manitoba cases of Michif CFS v CLH and WJB , 2020 MBQB 99 at paras 26-32 [ CLH ] ; and Island Lake First Nations Family Services v GJF and LJMB et al , 2022 MBQB 135 at paras 27-29 , wherein the Court applied the federal Act when considering private guardianship orders.

See also CFS Western MB v MLK and TDR , 2022 MBQB 106 at paras 18-20 . [ 62 ] D.D. relies on the Alberta cases of PPM and SL , stating that the federal Act is only applicable to services provided by the Government to assist families and not to private guardianship applications. [ 63 ] MCFCS takes no position regarding the application of the federal Act . Why the Applicability of the Federal Act Should Not Be Determined in This Case [ 64 ] The

interpretation of the federal Act and its interaction with provincial legislation is complex. Significant interpretive considerations were not argued by the parties. Without detailing the many nuances of those issues, I summarize them below and explain why it would not be appropriate for this Court to determine the issue in this case. Constitutional Considerations [ 65 ] While no constitutional challenge has been made in this case, constitutional concepts come into play when applying a federal statute in an area of provincial jurisdiction.

These include the presumption of constitutionality, federal paramountcy and the principle of cooperative federalism. [ 66 ] For example, in the reference case of Renvoi à la Cour d’appel du Québec relatif à la Loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et des Métis , 2022 QCCA 185 , under reserve SCC, 40061 (8 December 2022), the Court held that the federal Act was intra vires the federal government, except for sections 21 and 22(3). [1] It commented that (at para 343): The national standards are stated in general terms and should therefore be seen as a guide delineating the best interests of the child with a view to cultural continuity and substantive equality (s. 9), not as operational requirements imposed on public servants for the provision of child and family services. . . . [ 67 ] Without undertaking a comprehensive review of the case law, some cases interpreting the federal Act in conjunction with relevant provincial legislation do so in a harmonious manner (see, for example, ML v Dilico Anishinabek Child and Family Care , 2022 ONCA 240 at para 74 ; and Mi’kmaw Family and Children’s Services of Nova Scotia v RD , 2021 NSSC 66 at para 38 ).

Other cases give precedence to the federal Act (see CLH at para 31 ). In Asikiw Mostos O’Pikinawasiwin Society v BL , 2022 ABPC 76 , the Court accepted the submission made by the Alberta Government that the federal Act was paramount to the provincial legislation (see para 43). [ 68 ] In my view, constitutional arguments regarding jurisdiction and application of the federal Act must at least be

considered in the determination of its applicability to private guardianship applications made pursuant to the CFSA. Legislative History [69] While the historical context of the federal Act was argued by the parties, the legislative history of it was not. Forexample, comments arose in the Senate that would indicate concern that the federal Act would not apply to private guardianship.

Specifically, when the federal Act received second reading in the Senate, Senator Dennis Patterson echoed the concerns of ProfessorCindy Blackstock regarding the “very narrow definition of child and family services in the bill” (at p 8446).[2] Professor Blackstockexpressed the view that “the definition of child and family services doesn’t include post-majority care, guardianship or adoption” (at p8447).

Senator Patterson stated, “[h]earing witnesses repeat the same point makes it clear: The definition of child and family servicesshould be amended and expanded” (at p 8447).[3] Amendments to the CFSA and the Enactment of The Family Law Act, CCSM c F20 [70] The most important consideration, which was not identified by counsel nor argued, is that the CFSA has beensignificantly amended since the trial judge’s decision. [71] First, the Manitoba Government passed The Child and Family Services Amendment Act, SM 2022, c 30, whichspecifically referenced the federal Act.[4] It added

Part VI.1, titled “Indigenous Governing Bodies and Indigenous Service Providers”,which included a definition in

section 76.1 of “child and family services” as “services to support children and families, includingprevention services, early intervention services and child protection services.” However, the definition only applied in that Part. [72] More recently, the Manitoba Government passed

An Act respecting Child and Family Services (Indigenous Jurisdiction and Related Amendments), SM 2023, c 26 [the current CFSA].[5]

Section 2 of the CFSA was repealed and the current CFSA contains acomprehensive statement of its purpose that includes provisions that are either identical to or very similar to sections 9–10 of the federalAct. The new

section 2 of the CFSA is attached as Appendix C to these reasons. [73] Of significant import is that

Part VII (Private Guardianship of the Person and Access), which includes

section 77 of theCFSA, was repealed on July 1, 2023 (see the Amendment Act). Private guardianships in Manitoba are no longer governed by the CFSA. They are now governed by

Part 3 of The Family Law Act, CCSM c F20 [the FLA] (see

section 48).

Section 35 of the FLA contains thebest interests of the child provision and the factors to be considered. It does not appear to contain the same level of detailed provisionsregarding Indigenous children as the current CFSA. Sections 35 and 48 are attached as Appendix D. Conclusion [74] All of the above factors are important for a full analysis of the applicability of the federal Act. [75] The argument that the federal Act applies and that the trial judge erred in not applying it is first raised on appeal.

InMurray v Director of Employment and Income Assistance (Man), 2015 MBCA 66, Beard JA stated (at para 16): The general rule is that a new issue may not be raised on appeal. There are exceptions, however; they should be permitted only wherethe interests of justice require it and the court has a sufficient evidentiary record and findings of fact to do so. (See Quan v. Cusson, 2009SCC 62 at paras. 36-37, [2009] 3 S.C.R. 712; St. Clements (Rural Municipality) v. Zucawich, 2013 MBCA 65 at paras. 92-98, 294Man.R. (2d) 146; and Samborski Garden Supplies Ltd. v.

MacDonald (Rural Municipality), 2015 MBCA 26 at para. 27, 315 Man.R. (2d)291.) [76] The considerations that I have reviewed above are significant. In my view, it would not be in the best interests ofA.D.R. or the interests of justice to have the matter decided on the arguments made at this hearing, especially in light of the fact that thelegislation under which the order of guardianship was made is now spent. Due to the considerable amendments that have been made tothe CFSA, as well as the introduction of the FLA, it is my view that any

interpretation that this Court provides would be of little usemoving forward. [77] I have considered the possibility of inviting the parties to provide further submissions. However, I am of the view thatthe delay that would be occasioned in that regard is not in the best interests of A.D.R. Given the amount of time that has already passedand, as I later detail, the different circumstances that now exist, it is my opinion that this matter would be more expeditiously determinedby way of a variation order with due regard given to the significant amendments to the CFSA and the enactment of the FLA.

The Standard of Review—Best Interests of the Child [78] The remaining grounds of appeal all deal with the application of principles relating to the best interests of A.D.R., thealleged errors in the trial judge’s findings of fact and the weight he attributed to them.

Therefore, before embarking on an analysis ofeach of the grounds, I will briefly review the standard of review to be applied when considering the best interests of the child. [79] The recent Supreme Court of Canada case of BJT v JD, 2022 SCC 24 [BJT], provides a comprehensive statement on thestandard of review to be applied in cases involving child custody.

Writing for the Court, Martin J reinforced that, when assessing a trialjudge’s conclusions about child custody in a child welfare context, the deferential approach set out in Hickey v Hickey, (SCC), [1999] 2 SCR 518 at para 12 [Hickey]; and Van de Perre v Edwards, 2001 SCC 60 at para 11 [Van de Perre], applies. That is,“an appellate court is not entitled to intervene unless there has been ‘a material error, a serious misapprehension of the evidence, or an

error in law’” (at para 52). [80] In Van de Perre, Bastarache J explained what constitutes a material error (at para 15): As indicated in both Gordon [Gordon v Goertz, (SCC), [1996] 2 SCR 27] and Hickey, the approach to appellate reviewrequires an indication of a material error. If there is an indication that the trial judge did not consider relevant factors or evidence, thismight indicate that he did not properly weigh all of the factors. In such a case, an appellate court may review the evidence proffered attrial to determine if the trial judge ignored or misdirected himself with respect to relevant evidence.

This being said, I repeat thatomissions in the reasons will not necessarily mean that the appellate court has jurisdiction to review the evidence heard at trial. Asstated in Van Mol (Guardian ad Litem of) v. Ashmore (1999), 1999 BCCA 6 , 168 D.L.R. (4th) 637 (B.C.C.A.), leave to appealrefused [2000] 1 S.C.R. vi, an omission is only a material error if it gives rise to the reasoned belief that the trial judge must haveforgotten, ignored or misconceived the evidence in a way that affected his conclusion. Without this reasoned belief, the appellate courtcannot reconsider the evidence.

See also BJT at para 56. [81] In BJT, Martin J cautioned (at para 57): This narrow scope of appellate review means that, absent a material error, the “Court of Appeal is not in a position to determine what itconsiders to be the correct conclusions from the evidence. This is the role of the trial judge” (Van de Perre, at para. 12 (emphasisdeleted)).

An appellate court is therefore not permitted to redo a lower court’s analysis to achieve a result that it believes is preferable inthe best interests of the child. [82] Finally, she explained, “[t]he Van de Perre standard reflects the significant deference that the decision of a judge at firstinstance as to a child’s best interests attracts, owing to the polymorphous, fact-based, and highly discretionary nature of suchdeterminations (Hickey, at para. 10)” (at para 58). [83] In Stevens v Haley, 2019 MBCA 88, Beard JA explained the standard of review in a contested child custody matterwhere it was alleged that the trial judge misapprehended the evidence and failed to correctly apply the relevant legal principles.

Afterconsidering the material error standard set out in Van de Perre, she then stated (at para 27): Alternatively, an allegation of an error in findings of fact by a trial judge is reviewed on the standard of palpable and overriding error. Inother words, an appellate court must defer to the trial judge’s findings and conclusions of fact unless the trial judge has made a palpableand overriding error.

A palpable error is one that is plainly or readily seen, while an overriding error is one that is sufficiently significantto vitiate the finding of fact or “goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of thaterror” (Waxman v Waxman, (ON CA), 2004 CarswellOnt 1715 at para 297 (CA); see also para 296; Posthumous vFoubert, 2011 MBCA 43 at para 19; and Hyczkewycz v Hupe, 2019 MBCA 74 at paras 129-31).

Ground 2—Did the Trial Judge Err by Failing to Give Adequate Weight to the Foundations, Objectives, Intent and the OverarchingPrinciples of the Federal Act and of the United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14? [84] A.D.M. acknowledges that the trial judge stated that he intended to “pay heed to” foundational principles of the federalAct when making his decision.

However, she argues that he misapprehended or ignored the evidence, which resulted in him failing toapply those principles. [85] In this case, A.D.M. argues that the trial judge (1) misstated the position of MCFCS, (2) misapprehended the evidenceregarding D.D.’s willingness to facilitate extended family contact, (3) made a palpable and overriding error in his consideration of thecompeting guardianship assessments, (4) misapprehended evidence concerning the cultural plans of the parties, and (5) failed to giveadequate weight to the preferences of relevant parties. [86] After carefully reviewing the evidence at trial and the reasons of the trial judge, I am not convinced that he made amaterial error in his assessment of the evidence. [87] First, A.D.M. argues that the trial judge misstated the position of MCFCS.

The trial judge stated, at the commencementof the trial, that MCFCS’s position was that while it “was still of the view that it is in the best interests of A.D.R. to remain in D.D.’scare under an order of guardianship, it nonetheless preferred and supported A.D.M.’s application” (at para 8).

A review of the transcriptshows that MCFCS’s position was that it was “fine with both”, but there was a “tipping scale” that favoured A.D.M. and that “they’reboth safe and adequate caregivers and we’re supporting one over the other.” [88] Despite his comment, a review of the trial judge’s reasons demonstrates that, while he disagreed with the opinion ofMCFCS, he was well aware of its position that it was in the best interests of A.D.R. for A.D.M. to be her guardian based on A.D.M.’s

“willingness and ability to maintain or to promote A.D.R.’s connection in future with her culture, community and extended family” (at para 56). At most, the error alleged is a minor difference in language used to describe the position of MCFCS. This does not amount to a misapprehension of the evidence. [ 89 ] Next, the trial judge did not misapprehend the evidence regarding D.D.’s willingness to facilitate extended family contact. He referred to the interpersonal conflict between D.D. and A.D.M.

He considered all of the arguments raised regarding the issues surrounding D.D.’s facilitation of contact between A.D.R. and A.D.M. and A.D.R. and M.M. He accepted D.D.’s explanation for some of the missed calls and found that she did not deliberately frustrate contact. He determined that the issues in this regard had been “elevated disproportionately” (at para 89). [ 90 ] In this regard, I also agree with D.D. that the evidence illustrates that the lack of contact between the parties was not exclusively due to D.D., but also due to circumstances beyond her control.

As well, at one point, the number of calls per week between A.D.M. and A.D.R. had been reduced at A.D.R.’s request. [ 91 ] Similarly, the trial judge was aware of the arguments regarding the safe home and guardianship assessments, the cultural plans and the views of the parties. He acknowledged the allegation that the guardianship assessment prepared for D.D. contained a gap in that it did not address D.D.’s “willingness and ability to support A.D.R.’s cultural, community and extended family connections” (at para 103).

Nonetheless, he felt that the gap had been filled by other evidence called at the trial and the Court’s ability to craft terms of the guardianship order (see para 104). [ 92 ] The trial judge did not misapprehend A.D.M.’s or D.D.’s evidence regarding cultural plans. He questioned A.D.M.’s plan to make an annual trip to Peguis FN with A.D.R. on the basis that A.D.M. had not been to that community since 2017, and the evidence was unclear as to when she was there before that (see para 65). [ 93 ] Finally, the trial judge was aware of the views of the parties.

He simply had a different perspective of the weight to be placed on them based on his assessment of the evidence (see para 60). [ 94 ] In his reasons, the trial judge stated that his assessment included the “maintenance and promotion of [A.D.R.’s] ties to culture, community, and extended family, but also extends to a number of other factors central to her unique needs, her well-being and her best interests” (at para 57).

While those considerations did not result in the outcome that A.D.M. wanted, they are reflected in the conditions of his order which includes contact between A.D.M. and A.D.R. by telephone or internet on a regular basis and a provision that A.D.M. be allowed two weeks of summer holiday time with A.D.R. in Manitoba. In my view, A.D.M. has not demonstrated that the trial judge erred in his application of the fundamental values and principles underlying the federal Act in reaching his conclusion regarding A.D.R.’s best interests in this regard.

Ground 3—Did the Trial Judge Err By Making Erroneous and Arbitrary Assumptions and Drawing Conclusions Not Supported By the Facts? [ 95 ] A.D.M. lists a number of areas where she alleges the trial judge erred in the assumptions he made and the conclusions that he reached. In my view, these can be dealt with summarily. [ 96 ] First, she argues that the trial judge erred when he found that A.D.R. was experiencing improving results with her behaviours and encopresis while in the care of D.D.

She submits that the reports of the social worker and the doctor that A.D.R. was getting better were all based on D.D.’s description of the improvements. Therefore, she argues that those reports did not constitute independent evidence of improvement. [ 97 ] D.D. testified at the trial that A.D.R.’s conditions were improving. The trial judge was entitled to accept her evidence in this regard without requiring independent evidence.

There is no palpable or overriding error. [ 98 ] Regarding the alleged errors that A.D.M. says that the trial judge made concerning the amount of contact that A.D.M. had with A.D.R. prior to P.M. passing away in 2016, the trial judge acknowledged A.D.M.’s testimony about how much time she spent with A.D.R. (see para 16).

However, he had “difficulty believing” (at para 32) that she had as much contact as she claimed she did after 2014 when it was revealed that A.D.M. was in a romantic relationship with her mother’s, P.M.’s, husband (S.D.B.). [ 99 ] A.D.M. submits that the above finding constituted an assumption that she “did not have contact with [A.D.R.]” during this time frame.

She argues that the “assumption” was contradicted by C.K.’s testimony that she would drop A.D.R. off to stay with A.D.M. when she was involved in a relationship with S.J.M. [ 100 ] First, as evidenced above, the trial judge did not say that A.D.M. did not have contact with A.D.R. during that time frame. He simply doubted that A.D.M. spent as much time as she claimed with A.D.R.

Second, the testimony of C.K. that she would drop A.D.R. off to stay with A.D.M. does not indicate whether the visits she described occurred in 2014 and 2015 or after P.M.’s death in 2016, but before A.D.M. moved in 2017. [ 101 ] Furthermore, contrary to A.D.M.’s position, the fact that the trial judge said that A.D.M. had “some” remote contact (at para 16) and that he did not mention the number of days that A.D.M. spent with A.D.R. when A.D.M. was in Winnipeg for her sister’s funeral did not undermine the evidence of contact.

The trial judge specifically stated that A.D.M. spent “several days” with A.D.R. when she visited Winnipeg in 2020 (at para 16). The evidence was that the funeral was in 2020. [ 102 ] In my view, A.D.M. has not demonstrated palpable and overriding error in the findings of fact made by the trial judge or in the inferences that he drew, and they are entitled to deference. Ground 4 — Did the Trial Judge Err by Failing to Give Sufficient Weight to the Evidence Presented Regarding the Views of the Child or to Take Additional Steps to Ascertain Them?

[ 103 ] At the time of the trial, section 2(1) (

f) of the CFSA provided that one of the factors to be considered in determining the best interests of a child was “the views and preferences of the child where they can reasonably be ascertained”. [ 104 ] A.D.M. also relies on

Article 12 of the Convention on the Rights of the Child , 20 November 1989, 3 UNTS 1577, ratified by Canada on 12 December 1991, which I would summarize as (1) providing children with the right to express their views in matters affecting them and those views being given due weight in accordance with the age and maturity of the child, and (2) providing that a child shall be provided the opportunity to be heard in any judicial and administrative proceedings affecting them, either directly, or though a representative or an appropriate body. [ 105 ] In this case, trial amicus had been appointed for A.D.R. in order to assist the trial judge in determining her best interests.

Trial amicus prepared a report for the Court wherein he indicated that A.D.R. was “carefully avoid[ing] stating a preference” and requested the opportunity to cross-examine A.D.M. and D.D. at the trial to assist in the determination of her best interests. [ 106 ] On the first day of the trial, it was discovered that trial amicus was in a conflict and he applied to withdraw.

During the course of the proceedings, the trial judge asked trial amicus if A.D.R. had expressed a preference as to who she wished to live with and he replied that she had not and thought that “that really states very well where she is.” He also said that he stood by the report that he provided in that regard. [ 107 ] A discussion was had regarding the appointment of a new amicus curiae and the trial judge invited presentations from all parties in that regard.

MCFCS asked that duty counsel speak with A.D.R. as it “would be giving a more updated idea of whether or not she takes a position in this matter” and that there has been “some developments on [it].” [ 108 ] It is clear from the transcript that the trial judge questioned whether a nine-year-old child should be given the opportunity to express a preference and whether that was the role of the amicus. He said: . . . -- what most amicus, amici do with -- with children of this age.

It’s less of extracting views and preferences and more about, for example, the assessment reports and, potentially, depending on what the amicus says, may be reviewing a transcript or listening to testimony, but they don’t have to be here for the trial to do that. . . . [ 109 ] The trial judge allowed trial amicus to withdraw and made a new order appointing amicus “to assist the Court in determining the best interests of the child with respect to the guardianship applications.” He was clear that he was not making an appointment that would provide A.D.R. with the ability to instruct counsel. [ 110 ] While trial amicus was allowed to withdraw, the report prepared by him, dated August 17, 2021, was filed as an exhibit in the trial with the consent of the parties. [ 111 ] The trial proceeded with the social worker providing evidence.

Regarding the views of A.D.R., she testified that: • In April 2021, she met with A.D.R. as there was a report about her being unhappy at school. She asked A.D.R. if she had a preference as to where she would like to live and that she said with A.D.M.; • In July 2021, when she picked A.D.R. up at the airport after the visit with A.D.M., A.D.R said that she did not know where she wanted to live and that she would be happy living at both places; • She was present for the interview that trial amicus had with A.D.R. on August 4, 2021; • On August 30, 2021, A.D.R. said that she would like to live with A.D.M.

This latter conversation occurred as a result of A.D.R. asking her therapist to reach out to the social worker as A.D.R. wanted to talk to her; and • When she spoke to A.D.R. in April and on August 30, A.D.R. expressed worry that the social worker would tell D.D. that she wanted to live with A.D.M. and that D.D. would get mad at her. [ 112 ] Later in the trial, when new amicus appeared (the same amicus as in this appeal), the trial judge described the terms of her appointment to her. He stated: . . . . . .

So you’ll know that it’s not to receive instructions from the child, the child’s not a party to the proceedings, it’s a best interests appointment, and that until directed otherwise by me, because the child has a particularly challenging history and is a child who’s particularly vulnerable and I think particularly vulnerable at this stage given unfortunately her awareness of the proceedings, I don’t want, unless I direct otherwise, any effort being made by you to canvass her wishes or preferences or to meet with her.

Agency staff has done that as the evidence I’ve received has disclosed, [the person who prepared the guardian assessment of D.D.] has done that as the evidence has disclosed, [trial amicus] has done that as the evidence has disclosed, and it’s evident that the parties have done that as the

evidence has disclosed and will disclose.

I don’t want somebody else mucking about. [emphasis added] [113] In his reasons, regarding the view/preferences of A.D.R., the trial judge stated that, in light of her “age, and her particularbehavioural and emotional challenges”, he was not of the “view that emphasis ought to be placed on any expression of her preference asbetween the two applicants” (at para 61). [114] In discounting the weight that he was attaching to the evidence of the social worker, he noted that (1) the social workerdescribed A.D.R. as a people pleaser prone to tell adults what she assumed they wanted to hear; (2) the context of the conversations werethat the April conversation had occurred after an argument with D.D. and the July comment came after the visit with A.D.M.; (3) thereport of trial amicus indicated that she expressed no preference; and (4) the individual who could have optimally canvassed the subjectwith A.D.R. was her therapist (if she considered it appropriate to do so), but that no such request had been made of her (see para 62). [115] While the trial judge may have misspoke when he said that A.D.R. expressed a preference soon after her summer visit inBritish Columbia, he was clearly aware that on August 30, 2021 (approximately a month after her visit and after meeting with trialamicus), she expressed a preference to live with A.D.M. [116] The weight, if any, to be given to a child’s preferences is a discretionary matter.

It is highly dependent on the child’scapacity, vulnerability and a number of other factors to be considered in light of all of the evidence before the court. While anotherjudge may have placed different weight on the views of A.D.R. or engaged amicus that was appointed after trial amicus withdrew inobtaining an update of A.D.R.’s views, I have not been convinced that the trial judge made any material error in the weight that he placedon it in his determination of this factor of the best interests test.

The Motion for Fresh Evidence The Fresh Evidence [117] Amicus brought a motion seeking to introduce fresh evidence.

In that motion, she argued that the proposed freshevidence met the test for admission set out in Palmer v The Queen, (SCC), [1980] 1 SCR 759 [Palmer]. [118] Prior to the hearing of the appeal, this Court advised all counsel that we would like to hear their positions regarding theapplicability of Barendregt during oral arguments. [119] The proposed fresh evidence consists of an affidavit by an articling student who observed a conversation that amicus hadwith A.D.R. in which A.D.R. expressed her desire to live with A.D.M. and explained the reasons for her preference.

She said that, aftershe told trial amicus that she had no preference, she realized that she had made a mistake and that is why she reached out to the socialworker and told her that she wanted to live with A.D.M. She also said that she is getting older and wants to have a say about whathappens to her. She again expressed concern about D.D. becoming aware of her view. [120] Aside from the evidence of A.D.R.’s motivation for speaking with the social worker, none of the above is particularlynew evidence.

The trial judge was aware that A.D.R. told the social worker on August 30, 2021 that she wanted to live with A.D.M. [121] The balance of the proposed fresh evidence occurred after the trial. It consisted of the following: • A.D.R. speaks to A.D.M. every second weekend by way of virtual meetings, but that she does not talk openly because D.D.listens to the calls; • A.D.R. had not spoken to or seen her younger half-sister M.M. since the previous summer.

D.D. told A.D.R. that she thoughtM.M.’s mother, C.K., had called child and family services on her so she does not bring her to see M.M.; • D.D. does not let her see C.P.R. and her brother, and that she thought that A.D.M. could make that happen; • she no longer sees her therapist; • she did not know what Peguis First Nation was; • she does not feel attached to her school in Winnipeg and would not miss anything from Winnipeg if she moved.

The Barendregt Decision [122] In Barendregt, Karakatsanis J, writing on behalf of the majority, considered the admission of additional evidence in afamily proceeding involving parenting arrangements and relocation. [123] In that case, the mother wished to relocate with her children. The trial judge found that it would be in the best interests ofthe children to grant the mother primary care of the children based on a number of grounds, one of which was the parents’ financialsituation.

The trial judge concluded that the father would not have the financial ability to renovate and remain in the family home as hehad planned. The additional evidence proposed by the father included that his financial situation had changed and that he had beenmaking the required renovations on the home. [124] In overturning the British Columbia Court of Appeal, which had admitted the additional evidence and allowed the

appeal, Karakatsanis J discussed how appellate courts should “reconcile the need for finality and order in our legal system with the need for decisions that reflect the just result in the proceedings before the court” (at para 1) when additional evidence is put forward. [ 125 ] She stated that the Palmer test applies whether the additional evidence relates to facts that occurred before or after the trial when it is adduced for the purpose of reviewing the decision below (see paras 1, 27). [ 126 ] She recited the four requirements of the Palmer test: (1) due diligence, (2) relevance — the evidence must bear upon a decisive or potentially decisive issue, (3) the evidence must be credible, and (4) the evidence must be such that, if believed, it could have affected the result at trial (see para 29). [ 127 ] Regarding the fourth criterion, she noted that its application may require a more flexible approach given that the best interests of the child analysis takes into account a broad range of considerations and widens the scope of evidence that could affect the result (see para 66).

However, she stated that the flexible approach to the fourth criterion included two other aspects, the first dealing with when the failure to meet the due diligence test is not fatal. More important to this case is the second aspect, which is the “existence of variation schemes that address factual developments that postdate trial” (at para 66). [ 128 ] She explained that “variation schemes permit a judge of first instance to vary a parenting order where a change of circumstances justifies a review of the child’s best interests” (at para 73). In such proceedings, the court cannot retry the case.

Rather, the applicant must prove that the child’s best interests materially changed since the time of the trial (see para 76). [ 129 ] On the other hand, an appeal is to determine whether there is an error in the trial decision and not “the implications of subsequent events” (at para 77).

She explained (at para 78): It is essential that variation procedures and appeals remain distinct in the family law context: holding otherwise would unfairly require the opposing party to defend the original order — absent a material error — in the wrong forum, with appellate judges effectively performing the work assigned to first instance judges in variation procedures.

This would displace the corrective function of appellate courts and allow litigants to circumvent Parliament’s variation scheme. [ 130 ] She concluded (at para 80): Consequently, in an appeal of a parenting order, courts should consider whether a variation application would be more appropriate in the circumstances.

Where an application for additional evidence amounts to what is “in substance a disguised application to vary” ( Riel [ Riel v Riel , 2017 SKCA 74 ], at para. 20), a court may refuse to admit additional evidence without considering the Palmer criteria. [emphasis added] Positions of the Parties [ 131 ] Amicus argues that A.D.R. wants her wishes to be heard by the Court, and that it has not been in her best interests to remain with D.D. as the intentions of the trial judge in making the guardianship order have not been fulfilled.

She argues that the four- part test in Palmer has been met and that, as amicus, she does not have the ability to bring a variation application. [ 132 ] Counsel for D.D. argues that a variation application is the best way to address the fresh evidence in this case. [ 133 ] Counsel for A.D.M. argues that the admissibility of the evidence is enhanced by the trial judge’s error in failing to give weight to the wishes of A.D.R. Given my ruling in that regard, that argument no longer holds water.

However, she also submits that this Court should admit the additional evidence and decide the issue afresh in order to provide timely justice. Analysis [ 134 ] In this case, the evidence as to where A.D.R. wishes to live is consistent with the evidence heard at trial.

There is nothing new of note. [ 135 ] However, there is other evidence that occurred since the trial that bears upon the findings that the trial judge made at the time, including his finding that it was a “critical misconception” (at para 92) that the interpersonal conflict between D.D. and A.D.M. would indicate A.D.R.’s likely loss of her cultural, community and family extensions in D.D.’s care. And, that it was important to maintain A.D.R.’s connection with Winnipeg where she had regular contact with her two half-sisters (see para 73).

As well, the trial judge found that D.D. was “committed to continuing as a participant in and supporter of therapy with [the therapist]” (at para 78). [ 136 ] The additional proposed evidence would indicate that none of the anticipated visits with M.M. occurred, that A.D.R. is no longer in therapy and that she has not been connected with her Indigenous community since she has been in the care of D.D. [ 137 ] In addition, A.D.R. will shortly be turning 12 years of age. She will be at least two years older than she was at the time the trial judge made his decision not to place weight on her wishes.

[ 138 ] All of the above constitute significant developments since the trial.

However, in light of the fact that I have not found material error in the decision of the trial judge, it is my view that a variation procedure is more appropriate in the circumstances, and that it is not in the interests of justice to admit the additional evidence in this appeal. [ 139 ] A variation proceeding will allow the trial judge to ask questions, clarify and verify the statements of A.D.R., as well as any evidence that D.D. or A.D.M. might present in response to the application — all things that are suited to a first instance judge, as opposed to appellate review. [ 140 ] I would also note that the trial judge was alive to the possibility that A.D.R.’s best interests might change.

In that regard, he seized himself of any future proceedings and any variations or alterations to his order in order to accommodate A.D.R.’s best interests. [ 141 ] Based on the above, I would refuse to admit the additional evidence without considering the Palmer criteria. Disposition [ 142 ] In the result, I would dismiss the motion for fresh evidence and dismiss the appeal with costs. Final Comment [ 143 ] One final comment. The day prior to the release of these reasons, we received information which all counsel consented to.

The additional information indicated that, on May 17, 2023, approximately one week after the hearing of this appeal, MCFCS apprehended A.D.R. from the care of D.D. and placed her in the care of A.D.M., where she remains. On June 21, 2023, the Court of King’s Bench granted a temporary order of guardianship regarding A.D.R. in favour of MCFCS, with the consent of D.D. and the amicus curiae , which will expire on December 21, 2023.

It is our view that these events, like the other events which were the subject of the fresh evidence motion, constitute post-trial events which are best dealt with in variation proceedings or, as is the case here, further child protection proceedings. JA I agree: JA I agree: JA APPENDIX A Pertinent provisions of the former The Child and Family Services Act , CCSM c C80 : Declaration of Principles The Legislative Assembly of Manitoba hereby declares that the fundamental principles guiding the provision of services to children and families are: 1.

The safety, security and well-being of children and their best interests are fundamental responsibilities of society. 2. The family is the basic unit of society and its well-being should be supported and preserved. 3. The family is the basic source of care, nurture and acculturation of children and parents have the primary responsibility to ensure the well-being of their children. 4. Families and children have the right to the least interference with their affairs to the extent compatible with the best interests of children and the responsibilities of society. 5.

Children have a right to a continuous family environment in which they can flourish.

6. Families and children are entitled to be informed of their rights and to participate in the decisions affecting those rights. 7. Families are entitled to receive preventive and supportive services directed to preserving the family unit. 8. Families are entitled to services which respect their cultural and linguistic heritage. 9. Decisions to place children should be based on the best interests of the child and not on the basis of the family’s financial status. 10.

Communities have a responsibility to promote the best interests of their children and families and have the right to participate in services to their families and children. 11. Indian bands are entitled to the provision of child and family services in a manner which respects their unique status as aboriginal peoples. . . .

Best interests 2(1) The best interests of the child shall be the paramount consideration of the director, an authority, an agency and a court in all proceedings under this Act affecting a child, other than proceedings to determine whether a child is in need of protection, and in determining best interests the child’s safety and security shall be the primary considerations. After that, all other relevant matters shall be considered, including (

a) the child’s opportunity to have a parent-child relationship as a wanted and needed member within a family structure; (

b) the mental, emotional, physical and educational needs of the child and the appropriate care or treatment, or both, to meet such needs; (

c) the child’s mental, emotional and physical stage of development; (

d) the child’s sense of continuity and need for permanency with the least possible disruption; (

e) the merits and the risks of any plan proposed by the agency that would be caring for the child compared with the merits and the risks of the child returning to or remaining within the family; (

f) the views and preferences of the child where they can reasonably be ascertained; (

g) the effect upon the child of any delay in the final disposition of the proceedings; and (

h) the child’s cultural, linguistic, racial and religious heritage. APPENDIX B

Pertinent provisions of An Act respecting First Nations, Inuit and Métis children, youth and families , SC 2019, c 24 : Principle — best interests of child 9(1) This Act is to be interpreted and administered in accordance with the principle of the best interests of the child. Principle — cultural continuity 9(2) This Act is to be interpreted and administered in accordance with the principle of cultural continuity as reflected in the following concepts: (

a) cultural continuity is essential to the well-being of a child, a family and an Indigenous group, community or people; (

b) the transmission of the languages, cultures, practices, customs, traditions, ceremonies and knowledge of Indigenous peoples is integral to cultural continuity; (

c) a child’s best interests are often promoted when the child resides with members of his or her family and the culture of the Indigenous group, community or people to which he or she belongs is respected; (

d) child and family services provided in relation to an Indigenous child are to be provided in a manner that does not contribute to the assimilation of the Indigenous group, community or people to which the child belongs or to the destruction of the culture of that Indigenous group, community or people; and (

e) the characteristics and challenges of the region in which a child, a family or an Indigenous group, community or people is located are to be considered. Principle — substantive equality 9(3) This Act is to be interpreted and administered in accordance with the principle of substantive equality as reflected in the following concepts: (

a) the rights and distinct needs of a child with a disability are to be considered in order to promote the child’s participation, to the same extent as other children, in the activities of his or her family or the Indigenous group, community or people to which he or she belongs; (

b) a child must be able to exercise his or her rights under this Act, including the right to have his or her views and preferences considered in decisions that affect him or her, and he or she must be able to do so without discrimination, including discrimination based on sex or gender identity or expression; (

c) a child’s family member must be able to exercise his or her rights under this Act, including the right to have his or her views and preferences considered in decisions that affect him or her, and he or she must be able to do so without discrimination, including discrimination based on sex or gender identity or expression; (

d) the Indigenous governing body acting on behalf of the Indigenous group, community or people to which a child belongs must be able to exercise without discrimination the rights of the Indigenous group, community or people under this Act, including the right to have the views and preferences of the Indigenous group, community or people considered in decisions that affect that Indigenous group, community or people; and

(

e) in order to promote substantive equality between Indigenous children and other children, a jurisdictional dispute must not result in a gap in the child and family services that are provided in relation to Indigenous children. . . .

Best interests of Indigenous child 10(1) The best interests of the child must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services in relation to an Indigenous child and, in the case of decisions or actions related to child apprehension, the best interests of the child must be the paramount consideration.

Primary consideration 10(2) When the factors referred to in subsection (3) are being considered, primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child’s connections to his or her culture.

Factors to be considered 10(3) To determine the best interests of an Indigenous child, all factors related to the circumstances of the child must be considered, including (

a) the child’s cultural, linguistic, religious and spiritual upbringing and heritage; (

b) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (

c) the nature and strength of the child’s relationship with his or her parent, the care provider and any member of his or her family who plays an important role in his or her life; (

d) the importance to the child of preserving the child’s cultural identity and connections to the language and territory of the Indigenous group, community or people to which the child belongs; (

e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (

f) any plans for the child’s care, including care in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs; (

g) any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotional and psychological harm or risk of harm to the child; and (

h) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child. Consistency 10(4) Subsections (1) to (3) are to be construed in relation to an Indigenous child, to the extent that it is possible to do so, in a manner that is consistent with a provision of a law of the Indigenous group, community or people to which the child belongs.

. . . Priority 16(1) The placement of an Indigenous child in the context of providing child and family services in relation to the child, to the extent that it is consistent with the best interests of the child, is to occur in the following order of priority: (

a) with one of the child’s parents; (

b) with another adult member of the child’s family; (

c) with an adult who belongs to the same Indigenous group, community or people as the child; (

d) with an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs; or (

e) with any other adult. Placement with or near other children 16(2) When the order of priority set out in subsection (1) is being applied, the possibility of placing the child with or near children who have the same parent as the child, or who are otherwise members of the child’s family, must be considered in the determination of whether a placement would be consistent with the best interests of the child. Customs and traditions 16(2.1) The placement of a child under subsection (1) must take into account the customs and traditions of Indigenous peoples such as with regards to customary adoption.

Family unity 16(3) In the context of providing child and family services in relation to an Indigenous child, there must be a reassessment, conducted on a ongoing basis, of whether it would be appropriate to place the child with (

a) a person referred to in paragraph (1)(a), if the child does not reside with such a person; or (

b) a person referred to in paragraph (1)(b), if the child does not reside with such a person and unless the child resides with a person referred to in paragraph (1)(a). APPENDIX C

Section 2 of the current The Child and Family Services Act , CCSM c C80 , provides:

Purpose of Act 2 The purpose of this Act is to support the safety, security and well-being of children through the provision of services that are designed to preserve, sustain and restore families in the least disruptive manner possible. Principle of the best interests of the child 2.1(1) This Act is to be interpreted and administered in accordance with the principle of the best interests of the child.

Primary consideration for provision of services 2.1(2) The best interests of the child must be a primary consideration in making decisions or taking of actions in the context of the provision of child and family services. Paramount consideration for apprehension 2.1(3) The best interests of the child must be the paramount consideration in making decisions or taking of actions related to the apprehension of a child.

Factors to be considered 2.1(4) When the best interests of a child are being considered, primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, (

a) of having an ongoing relationship with their family; (

b) if the child is Indigenous, of having an ongoing relationship with the Indigenous group, community or people to which the child belongs; and (

c) of preserving the child’s connections to their culture. Other factors for consideration 2.1(5) When the best interests of a child are being considered, all factors related to the circumstances of the child must be considered, including (

a) the child’s cultural, linguistic, religious and spiritual upbringing and heritage; (

b) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (

c) the nature and strength of the child’s relationship with their parent, their guardian, the person with primary responsibility for the child’s day-to-day care and any member of the child’s family who plays an important role in their life; (

d) if the child is Indigenous, the importance to the child of preserving the child’s cultural identity and connections to the language and territory of the Indigenous group, community or people to which the child belongs;

(

e) if the child is not Indigenous, the importance to the child of preserving the child’s cultural identity and connections to the child’s language and to the child’s ethnic or cultural community; (

f) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (

g) if the child is Indigenous, any plans for the child’s care, including care in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs; (

h) if the child is not Indigenous, any plans for the child’s care, including care in accordance with the customs or traditions of the child’s ethnic or cultural community; (

i) any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotional and psychological harm or risk of harm to the child; and (

j) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child. Principle of substantive equality 2.2 This Act is to be interpreted and administered in accordance with the principle of substantive equality as reflected in the following concepts: (

a) the rights and distinct needs of a child with a disability are to be considered in order to promote the child’s participation, to the same extent as other children, in the activities of their family or the group, community or people to which the child belongs; (

b) a child must be able to exercise their rights under this Act, including the right to have their views and preferences considered in decisions that affect them, and the child must be able to do so without discrimination, including discrimination based on sex or gender identity or expression; (

c) a child’s family member must be able to exercise their rights, including the right of an Indigenous child’s family to have their views and preferences considered in decisions that affect them, and the family member must be able to do so without discrimination, including discrimination based on sex or gender identity or expression; (

d) if the child is Indigenous, the Indigenous governing body acting on behalf of the Indigenous group, community or people to which the child belongs must be able to exercise without discrimination the rights of the Indigenous group, community or people, including the right to have the views and preferences of the Indigenous group, community or people considered in decisions that affect that Indigenous group, community or people; (

e) in order to promote substantive equality between Indigenous children and other children, a jurisdictional dispute must not result in a gap in the child and family services that are provided in relation to Indigenous children. Principle of Indigenous cultural continuity 2.3 In the context of providing child and family services in relation to an Indigenous child, this Act is to be interpreted and administered in accordance with the principle of Indigenous cultural continuity as reflected in the following concepts: (

a) cultural continuity is essential to the well-being of an Indigenous child, the child’s family and their Indigenous group, community or

people; (

b) the transmission of the languages, cultures, practices, customs, traditions, ceremonies and knowledge of an Indigenous group, community or people is integral to cultural continuity; (

c) an Indigenous child’s best interests are often promoted when the child resides with members of their family and the culture of the Indigenous group, community or people to which the child belongs is respected; (

d) child and family services are to be provided in a manner that does not contribute to the assimilation of the Indigenous group, community or people to which an Indigenous child belongs or to the destruction of the culture of that group, community or people; (

e) the characteristics and challenges of the region in which an Indigenous child, their family or an Indigenous group, community or people is located are to be considered. . . . General principles 2.4 Services under this Act are to be provided in a manner that (

a) takes into account the child’s needs, including with respect to the child’s physical, emotional and psychological safety, security and well-being; (

b) takes into account the child’s ethnicity and culture; (

c) allows the child to know their family origins; and (

d) promotes substantive equality between the child and other children. Preventive care 2.5 In the context of providing child and family services in relation to a child, to the extent that providing a service that promotes preventive care to support the child’s family is consistent with the best interests of the child, the provision of that service is to be given priority over other services.

Prenatal care 2.6 To the extent that providing a prenatal service that promotes preventive care is consistent with what will likely be in the best interests of a child after the child is born, the provision of that service is to be given priority over other services in order to prevent the apprehension of the child at the time of the child’s birth. Placement priority 2.7(1) The placement of a child in the context of providing child and family services in relation to the child, to the extent that it is consistent with the best interests of the child, is to occur in the following order of priority: (

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