Manitoba (Director of Child and Family Services) v MK and CJO, 2023 MBCA 98

Citation: Manitoba (Director of Child and Family Services) v MK and CJO, 2023 MBCA 98 Date: 20231205 Docket: AH22-30-09858 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Marianne Rivoalen Madam Justice Diana M. Cameron Madam Justice Jennifer A. Pfuetzner BETWEEN : ) D. R. Kropp, ) K. J. Janovcik and ) L. E. McAdam The director of child and ) for the Appellant family SERVICES ) ) M. L. Mitchell (Petitioner) Appellant ) for the Respondent M. K. ) - and - ) D. Joycey ) for the Respondent C. J. O. M. K. and C. J.

O. ) ) Appeal heard: (Respondents) Respondents ) October 3, 2023 ) ) Judgment delivered: ) December 5 , 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 2022 MBQB 175 rivoalen cjm [ 1 ] The Director of Child and Family Services (the agency) appeals from the permanent order of the Court of King’s Bench pronounced on August 30, 2022, and filed on November 10, 2022, in which the trial judge found that M., the child in question, was in need of protection from his parents, M.K. and C.J.O. (the respondents), at the time of apprehension and at the time of the hearing. The trial judge ordered that the agency have permanent guardianship of the child subject to six conditions:

a) the respondents shall be entitled to visit with M. together on a supervised basis for three hours each week in their residence;

b) the respondents’ visitation with M. shall revert to unsupervised access for four hours each week with no conditions as to location, upon M.K. providing proof to the agency that she has completed the recommendations of the doctor;

c) the respondents’ visitation is expected to gradually increase to one weekend per month upon the agreement of the parties or on further order of the Court;

d) the respondents shall be entitled to receive pictures, report cards and any significant medical information that affects M. on a consistent basis until M.’s 18th birthday;

e) the respondents shall be entitled to receive notice of, and participate in, any significant legal proceedings related to M.’s long-term care including legal guardianship and adoption proceedings; and

f) the Court of King’s Bench shall retain jurisdiction relating to any issues that affect M. while M. is under the age of 18 years. [ 2 ] The agency asks this Court to set aside the permanent order of guardianship and substitute a permanent order of guardianship without conditions. It argues that The Child and Family Services Act , CCSM c C80 [the Act ] does not allow for conditions

to be attached to a permanent order and that the trial judge erred in relying on the Court’s parens patriae jurisdiction in imposing conditions to the permanent order. [ 3 ] For the reasons that follow, I would allow the appeal. I would alter the permanent order by removing the six conditions in their entirety. The permanent order would otherwise stand. Background [ 4 ] By way of brief background, the agency placed the child with foster parents at birth. The foster parents are married; the male foster parent is Caucasian, and the female foster parent is Black of Jamaican heritage.

Prior to receiving the child in their home, they adopted two of the child’s older siblings. [ 5 ] The child’s mother, who is Black, immigrated to Canada from Liberia as a young child. The child’s father, who is also Black, arrived in Canada from Nigeria at the age of 18 on a student visa. At the conclusion of the evidence, but before the trial judge rendered the permanent order and her reasons, the father was deported back to Nigeria. [ 6 ] Counsel for the respondents conceded at trial that the child was in need of protection and that he should remain with the foster parents, under the guardianship of the agency.

The only issue for the trial judge was whether the agency’s plan to have the foster parents adopt the child was in his best interests. The respondents opposed the plan for adoption. [ 7 ] The child is now five years of age and continues to be in the care of the foster parents. The Decision Under Appeal [ 8 ] The trial judge found that it was in the child’s best interests to have a permanent placement as the child was fully attached to the foster parents and his siblings (see para 158). [ 9 ] The trial judge did not, however, agree with the agency’s plan for adoption.

She found that it was not in the child’s best interests to support a plan of adoption that would leave the foster parents with the responsibility for issues such as cultural awareness and the child’s contact with the respondents (see paras 155-57). [ 10 ] The trial judge recognized that the Act allows the agency to take the position that once it became the permanent guardian of the child, the child could be placed for adoption with the foster parents (see para 158). [ 11 ] The trial judge found that the only orders she could pronounce in the circumstances were an order under sections 38(1) (

b) or 38(1) (

f) of the Act . With respect to an order under section 38(1) (b), she acknowledged that the foster parents had not been canvassed on whether they would be prepared to agree to place the child in their care without a transfer of guardianship to them. The trial judge was aware that the foster parents would have to consent to such an order being made, but as they were intent on adopting the child, they would not likely agree to anything else (see para 159). [ 12 ] This left the trial judge with the only other order she could grant—a permanent order of guardianship pursuant to section 38(1) (

f) of the Act .

The trial judge recognized that once such an order is granted, it operates as an absolute termination of parental rights and obligations pursuant to section 45(1) of the Act , and the agency could place the child for adoption in accordance with The Adoption Act , CCSM c A2 (see para 160). [ 13 ] She then considered section 45(3) of the Act and found that, under that section, the respondents could ask the court to terminate the permanent order of guardianship after one year, but only if the child has not been placed for adoption (see para 161). [ 14 ] The trial judge then examined sections 39(2) to 39(6) of the Act to determine the extent of parental access that she could order when pronouncing a permanent order of guardianship in the case where the foster parents contemplate adopting the child (see para 162). [ 15 ] After her review of all of these provisions, the trial judge concluded that any order of access she pronounced after a permanent order of guardianship was granted would become null and void once the agency placed the child for adoption.

The trial judge found that the intent of

section 39 of the Act is clear; there can be no access once a child has been placed for adoption unless the agency agrees. Access is at the discretion of the agency and parents no longer have any avenue to the courts.

Once the adoption occurs, both the agency and the courts lose all oversight ability that could ensure that access is taking place as envisioned (see para 163). [ 16 ] The trial judge determined that she could not, within the confines of the Act , make an enforceable order that was in the child’s best interests allowing for continued access and other connections to the respondents if he was placed for adoption.

She reiterated that parents and the court effectively lose all oversight powers once a child is adopted (see para 165). [ 17 ] The trial judge understood that biological parents of a permanent ward do not have to be served with the application for adoption and that they do not have to consent to it.

She acknowledged that agency adoptions must still be pronounced by a judge of the Court of King’s Bench, but she observed that such adoptions are duty judge matters that effectively have no opposition even though they affect a significant number of children who are involuntarily removed from their parents’ care (see para 166). [ 18 ] The trial judge concluded that, because the evidence so overwhelmingly supported a finding that she had no statutory authority to make the order that she viewed as being in the child’s best interests, it was necessary for her to examine the parens patriae jurisdiction of the Court.

Parens patriae jurisdiction is grounded in necessity (see para 171).

[ 19 ] The trial judge determined that, in these circumstances, there was a gap in the Act because it did not permit a permanent order with access conditions, notwithstanding that the Court found it to be in the child’s best interests. The trial judge then considered section 9(2) of the federal Act , An Act respecting First Nations, Inuit and Métis children, youth and families , SC 2019, c 24 [the First Nations Act ] and found that through this new legislation, Parliament had seen fit to override the Act in some respects; in particular, by ensuring the principle of cultural continuity.

She also noted that the First Nations Act requires notice of any significant measures taken by an agency to be given to parents, regardless of their ability to care for the child in question (see paras 176-77). [ 20 ] More broadly, the trial judge found that there is a gap in the Act as it does not allow the court to attach conditions to a permanent order, even when the imposition of such conditions is required to ensure that the fundamental principles of the Act are being acted upon and respected.

The trial judge explained that she made this finding based on the exceptional facts of this case, and the fact that the Act is not in compliance with evidence-based social science on the issues she addressed in the decision (see para 179). [ 21 ] After reaching these conclusions, the trial judge called upon the Court’s parens patriae jurisdiction to craft a permanent order that attached parental access conditions and conditions entitling the respondents to notice of adoption or other proceedings involving the child.

The final condition attached to the permanent order enabled the Court of King’s Bench to retain jurisdiction relating to any issues that affected the child while he was under the age of 18 years.

Issues [ 22 ] The agency identified the issues in this appeal as follows: (1) whether the trial judge erred in law by invoking the Court’s parens patriae jurisdiction to attach conditions to a permanent order, contrary to the provisions of the Act ; and (2) whether the trial judge commited a palpable and overriding error by seriously misapprehending the evidence and making findings of fact that were contrary to and inconsistent with the evidence at trial.

The Standard of Review [ 23 ] Since this is an appeal of a trial court decision after a trial, the applicable standard of review is that articulated in Housen v Nikolaisen , 2002 SCC 33 ; namely, correctness for questions of law and palpable and overriding error on questions of fact or mixed fact and law, except in the case of an extricable error of law, in which case the standard of correctness applies. [ 24 ] There is no dispute that the first issue in this appeal is a question of law subject to the standard of correctness.

On such a standard, no deference is owed to the trial judge. [ 25 ] The question of whether the trial judge seriously misapprehended the evidence is a question of fact to be reviewed on a standard of palpable and overriding error. Palpable and overriding error is a difficult standard to meet. In one case, the Court explained that, “[w]hen arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall” ( Canada v South Yukon Forest Corporation , 2012 FCA 165 at para 46 , approved in Benhaim v St-Germain , 2016 SCC 48 at para 38 ).

In Mahjoub v Canada (Citizenship and Immigration) , 2017 FCA 157 , the Federal Court of Appeal explained the standard as follows (at paras 62, 64-65): “Palpable” means an error that is obvious. Many things can qualify as “palpable”.

Examples include obvious illogic in the reasons (such as factual findings that cannot sit together), findings made without any admissible evidence or evidence received in accordance with the doctrine of judicial notice, findings based on improper inferences or logical error, and the failure to make findings due to a complete or near-complete disregard of evidence. … “Overriding” means an error that affects the outcome of the case. It may be that a particular fact should not have been found because there is no evidence to support it.

If this palpably wrong fact is excluded but the outcome stands without it, the error is not “overriding”. The judgment of the first-instance court remains in place. There may also be situations where a palpable error by itself is not overriding but when seen together with other palpable errors, the outcome of the case can no longer be left to stand. So to speak, the tree is felled not by one decisive chop but by several telling ones. [ 26 ] These descriptions of the meaning of palpable and overriding error are illustrative of the high level of appellate deference owed to the trial judge on findings of fact.

The Act and The Adoption Act [ 27 ] Before turning to the submissions, it is helpful to reproduce the provisions of the Act and those of The Adoption Act applicable to the issues raised in this appeal.

[28] The relevant provisions of the Act as they read at the time the permanent order was rendered are reproduced inAppendix A to these reasons. [29] The relevant provisions of The Adoption Act are reproduced in Appendix B to these reasons.

The Law on the Court’s Parens Patriae Jurisdiction [30] A review of the law on the court’s inherent parens patriae jurisdiction in child protection matters is required prior toundergoing my analysis. [31] The latin phrase parens patriae is defined as “parent of his or her country” (Bryan A Garner, ed, Black’s LawDictionary, 11th ed (Thomson Reuters, 2019) sub verbo “parens patriae”, online: <1.next.westlaw.com/Browse/Home/SecondarySources/BlacksLawDictionary?contextData=(sc.Default)&transitionType=Default&navId=8994FB667AE338AC150A91EA2266098B>).

Historically, in England, parens patriaewas the sovereign, the King (Henry Campbell Black, Black’s Law Dictionary, revised 4th ed (St Paul, MN: West Publishing Co, 1968)sub verbo “parens patriae”). While, historically in Canada, it was the authority of the Crown, it is now well-established that suchauthority is exercised by superior courts. [32] The seminal Supreme Court of Canada case on parens patriae jurisdiction in the child protection context is Beson vDirector of Child Welfare (NFLD), (SCC), [1982] 2 SCR 716 [Beson].

In that case, a couple intended to adopt a youngchild who had been a ward of the Director of Child Welfare in Newfoundland since birth. However, in response to allegations of childabuse, the child was removed from their care. The child was subsequently placed for adoption with another family.

The issue waswhether there was a gap in the legislation that would entitle the Court to assert its parens patriae jurisdiction in what it considered to bethe child’s best interests (see p 720). [33] In answering this question, Wilson J, writing for the Court, relied heavily on an English precedent (see pp 722-23), A vLiverpool City Council, [1981] 2 All ER 385 (HL) [Liverpool].

In that case, Wilberforce LJ (writing for the majority) stated (at p 388): This leads to the next and decisive question: given that both the High Court and the local authority have responsibilities for the welfareof the child, what is the relationship, or dividing line, between them? I think that there is no doubt that the appellant, the child’s mother,is arguing for a general reviewing power in the court over the local authority’s discretionary decision; she is, in reality, asking the courtto review the respondents’ decision as to access and to substitute its own opinion on that matter.

Access itself is undoubtedly a matterwithin the discretionary power of the local authority. In my opinion the court has no such reviewing power. Parliament has by statute entrusted to the local authority the power and duty tomake decisions as to the welfare of children without any reservation of reviewing power to the court. . . . [34] As Wilson J noted in Beson: “[Wilberforce LJ] stressed that the inherent jurisdiction is not taken away. It simplycannot be resorted to if the action the court is being asked to take is within the discretion of the local authority” (at pp 723-24).

She thenquoted the following passage from Liverpool: “The court’s general inherent power is always available to fill gaps or to supplement thepowers of the local authority; what it will not do (except by way of judicial review where appropriate) is to supervise the exercise ofdiscretion within the field committed by statute to the local authority” (at p 724). [35] While there was no “gap” in that case, Wilson J found that there were grounds for judicial review, and on that basis, sheordered that the appellants should adopt the child. [36] Beson was cited by the Supreme Court in the subsequent case of E (Mrs) v Eve, (SCC), [1986] 2 SCR388 [Eve].

Eve dealt with the issue of non-therapeutic sterilization of an adult lacking capacity to consent to the procedure. Justice LaForest, writing for the Court, confirmed that parens patriae jurisdiction persists to this day, “and even where there is legislation in thearea, the courts will continue to use the parens patriae jurisdiction to deal with uncontemplated situations where it appears necessary todo so for the protection of those who fall within its ambit” (at p 411).

Further, he commented that it was “impossible” (ibid) to definethe limits of this jurisdiction as it is entirely case specific. [37] More recently, in Reference re Broome v Prince Edward Island, 2010 SCC 11 [Broome], Cromwell J, writing for theCourt, described parens patriae jurisdiction as follows (at para 49): The parens patriae doctrine means different things in different contexts. Historically, it referred to a broad and virtually undefinedauthority of the Crown over the property and person of children and the mentally incompetent.

These powers of the Crown came to beexercised by the courts so that it is now recognized that the superior courts have certain powers to step into the shoes of the parent andmake orders in the best interests of the child: Eve. . . .

[38] Last year, in BJT v JD, 2022 SCC 24, the Supreme Court confirmed “the court’s essential oversight role in childwelfare matters and its parens patriae jurisdiction” (at para 63). Justice Martin, writing for the Court, added that “the jurisdiction underparens patriae to act in the best interests of a child gives ambit to a superior court to take due notice of an agency’s conduct insofar as itimpacts a child’s best interests” (at para 65). [39] This Court has also written on the doctrine of parens patriae jurisdiction.

In the decision of The Children’s Advocate ofManitoba v Child and Family Services of Western Manitoba et al, 2005 MBCA 11 [The Children’s Advocate], the issue was whether achild who abused other children could be registered on the Child Abuse Registry. Justice Hamilton, writing for the Court, made thefollowing comments (at para 41): It is important to remember that the exercise of the parens patriae jurisdiction by the court is not the exercise of the power of judicialoverride. By judicial override, I mean the power to disregard legislation, if the need arises in matters involving children.

Parens patriaeis generally viewed as being part of the inherent power of the court. Therefore, just as inherent power cannot be exercised incontravention of any statutory provision (see Glover v. Minister of National Revenue, (SCC), [1981] 2 S.C.R. 561,neither can parens patriae. In other words, parens patriae does not include a general reviewing power of the court. . . . [40] Justice Hamilton noted that the “[p]arens patriae jurisdiction of the court is ousted when the legislation assumes thisjurisdiction” (at para 42).

Importantly, she stated (at para 44): In Manitoba, the principles underlying parens patriae now operate statutorily through the system of child welfare agencies. The courtretains jurisdiction to intervene on behalf of children where the state has not otherwise done so through legislation or where there is a gapin the legislation. . . . But an express limit on the court’s role is not a silence or gap in the legislation. To the contrary, it is an expressionof the legislature’s intention. . . .

In these circumstances, the court has no parens patriae jurisdiction which it can exercise. [41] Thus, Hamilton JA concluded that the parens patriae jurisdiction of the Court was ousted in that case by the registryregime. [42] In the more recent case of T D v Director (Child and Family Services), 2015 MBCA 74, Steel JA, writing for the Court,confirmed (at para 30): I do not deny that this Court, as well as the Court of Queen’s Bench, has overall jurisdiction as parens patriae. . . .

However, the parenspatriae jurisdiction of the court can be resorted to only where the legislature has not assumed the jurisdiction, or if there is a gap in thelegislation that assumes the jurisdiction. . . . [43] The two decisions of this Court described previously involved child abuse registry matters. In the child protectioncontext, we have AOCFS v VN et al, 2017 MBCA 95.

In that case, Monnin JA, writing for the Court, found that “the legislature hasassumed jurisdiction of the subject matter of these proceedings and there is no gap in that legislation that would allow the exercise of theparens patriae jurisdiction in the circumstances of this case” (at para 14).

In that case, the trial judge awarded permanent guardianshipto an agency other than the one that sought it, which was not permitted under the legislative scheme. [44] Earlier this year, this Court examined the exercise of a superior court’s inherent jurisdiction, albeit in a different context,in College of Registered Nurses of Manitoba v Hancock, 2023 MBCA 70.

Justice Mainella, writing for the Court, found that “a superiorcourt’s inherent jurisdiction cannot be exercised in a fashion that conflicts with or neuters the requirements for granting a vexatiouslitigant order under the KB Act [The Court of King’s Bench Act, CCSM c C280] or the CA Act [The Court of Appeal Act, CCSM c C240]”(at para 57). As he stated (ibid): This approach ensures predictability of the law and respect for the separation of powers that underlie our democracy. . . .

Such anapproach is also in keeping with the general rule that a superior court’s inherent jurisdiction should be “exercised sparingly and withcaution” . . . and that “express grants of statutory powers” ought to be considered “before dipping into (the) important but murky pool of .. . inherent jurisdiction”. [45] With this review of the law in mind, I will now turn to my analysis.

Analysis [46] It is clear that in order for the Court to exercise its parens patriae jurisdiction in the case before us, it must find a gap inthe Act. [47] The gap described by the trial judge was that, when making a permanent order of guardianship to the agency, the Actprohibited her from attaching conditions of parental access, of notice to the respondents of adoption proceedings and of the Court’scontinued jurisdiction over the child while under the age of majority. This was because the agency’s plan was for the child to be placed

for adoption with his foster parents. Under these circumstances, she tried to find a way to override this statutory barrier because she found that a permanent order with such conditions was in the child’s best interests. [ 48 ] In their joint factum and during oral submissions, the respondents argued that there is indeed a gap in the Act , and that the trial judge committed no error in exercising the Court’s parens patriae jurisdiction.

The respondents argue that the gap “is that Agency guardianship can be limited by a court, as stated in s. 48 of the Act , but there is no clear pathway as to the mechanism for imposing limits.” They submit that some of the limits stated by the trial judge are impositions of access that do not have statutory authority under section 39(4). [ 49 ] The respondents maintain that there is no mechanism in the Act to impose other limits that may be found to be in the child’s best interests.

Therefore, a gap is present. [ 50 ] The respondents acknowledge that when a child is placed for adoption, section 39(6) of the Act disallows applications for access. [ 51 ] The trial judge did not examine

section 48 of the Act in her reasons when she determined there was a gap in the legislation. I presume this argument was not raised before her. As the appeal before this Court is on a question of law, it is necessary for me to consider

section 48 of the Act .

Section 48 of the Act [ 52 ]

Section 48 provides that where an agency is the guardian of the child under the Act , the agency shall have care and control of the child, be responsible for the child’s maintenance and education, act on behalf of the child and appear in court and prosecute or defend any action or proceeding in which the child’s status may be affected. In other words, the agency clearly steps into the shoes of a parent and enjoys all parental rights and obligations. [ 53 ] The language of

section 48 contemplates that the agency’s permanent guardianship can be limited by the court. An example of such a limit is found at section 39(4), which enables parents to apply to the court for an order of access after the pronouncement of an order of permanent guardianship if they are dissatisfied with the access granted to them by the agency, if any, under section 39(3). [ 54 ] It is clear from the text of

section 48 that any such limitation is intended to come into play after a permanent order of guardianship has been granted, and parents are not satisfied with the access provided to them by the agency. [ 55 ] That is not the case before us. The respondents confirmed during oral submissions that they did not file any applications for access with the Court. The Court here granted access at the same time it pronounced the permanent order of guardianship. However,

section 48 of the Act does not open the door for the Court to attach conditions to a permanent order at the time the order is made. [ 56 ] The trial judge examined all of the relevant provisions under the Act , as described in paragraphs 10 to 17 herein, and found that by operation of these provisions, she was obliged to make a permanent order under section 38(1) (f), and was barred from ordering access. She was correct in this assessment. [ 57 ] However, the trial judge erred in finding a gap in the Act . There is no gap. As I will explain, an examination of the legislative provisions that are relevant to these proceedings as a whole reveals no gap.

Section 39 of the Act [ 58 ] The ordinary meaning of the text in section 39(3) is that, after a permanent order is granted to an agency, the agency has complete discretion to determine what, if any, access a parent will be allowed. [ 59 ] The ordinary meaning of the text in section 39(4) is that a parent may apply to the court for an order of access if they are not satisfied with the access the agency is willing to grant them. [ 60 ] Section 39(5) provides for a variation of any order pronounced under section 39(4).

The ordinary meaning of the text is that either the agency or a parent may make a further application to vary the access order if there has been a material change in circumstances or the access permitted has been contrary to the best interests of the child. [ 61 ] The ordinary meaning of section 39(6) is that no application shall be made under section 39(4) or section 39(5) where the child has been placed for adoption. The text is mandatory. Once the child is placed for adoption, the court has no authority to grant access, full stop. [ 62 ] I will now consider

section 45 of the Act .

Section 45 of the Act [ 63 ] The plain meaning of section 45(1) of the Act is clear. An order of permanent guardianship operates as an absolute termination of parental rights and, following the expiry of the appeal period, the agency may place the child for adoption in accordance with The Adoption Act . The legislature has codified its policy that adoption may be an appropriate plan for an agency to implement following the pronouncement of a permanent order. Whether adoption is appropriate must always be determined on a case-by-case basis.

[ 64 ] The intent of the legislature is that upon such a placement for adoption, the provisions of The Adoption Act should govern. The Adoption Act [ 65 ]

Section 12 of The Adoption Act states that where the child to be adopted is a permanent ward placed for adoption by an agency, a judge shall not make an order for adoption unless written consent to the adoption has been given in the prescribed form by the agency and by the child, if the child is 12 years of age or older. No other notice or consent is required. [ 66 ] In this case, the agency is in favour of the adoption and, therefore, written consent will be forthcoming. The child is under the age of 12 and, therefore, his consent is not required. [ 67 ] Next,

section 33 of The Adoption Act provides that, once an order of permanent guardianship is made under section 38(1) (

f) of the Act , an openness agreement can be made in writing between an adoptive parent and a birth parent of the child if that birth parent is approved by the agency. This provision allows for birth parents to have contact with a child, even after permanent guardianship has been granted to an agency, and an adoption has been granted. However, this provision leaves it up to these parties to arrive at such an arrangement.

The Court has no power to mandate or intervene in such agreements. [ 68 ] Having now reviewed all of the legislative provisions relevant to this appeal, I agree with the trial judge’s determination that the Court has no jurisdiction to require notice of adoption proceedings to birth parents when a child is a permanent ward. She was also correct when she found that the Court has no jurisdiction to wade into openness agreements. However, in my view, this is not a gap in The Adoption Act . This was clearly the intent of the legislature. [ 69 ] As mentioned, the ordinary meaning of

section 48 of the Act cannot be read in total isolation. A court cannot impose conditions after a permanent order of guardianship is granted unless those conditions are permitted by the Act . The conditions imposed here were not permitted by the Act . Rather, they were strictly forbidden. [ 70 ] Sections 38, 39, 45 and 48, when read together with all the other relevant provisions of the Act , form part of an interconnected, harmonious web of provisions. There is no confusion. There is no gap.

The Act is a complete legislative and regulatory scheme, which sets out the powers of the agency and the powers of the court. [ 71 ] It is important to underscore here that the respondents did not challenge the evidence of their inability to parent the child. Indeed, the respondents conceded at trial that it was in the child’s best interests to be placed in the permanent guardianship of the agency, and that the child should remain with the foster parents and his siblings. The trial judge agreed with this plan.

That is why she granted a permanent order of guardianship to the agency. [ 72 ] In such a case, the only option available to the trial judge was to grant a permanent order under 38(1)(f). [ 73 ] The foster parents want to adopt the child. The agency is in favour of such an adoption. The trial judge disagreed with the adoption. [ 74 ] In my view, it is at this point that the trial judge erred in law in invoking her parens patriae jurisdiction. The jurisdiction was limited by statute—that being the express language of the Act .

As mentioned, the court’s parens patriae jurisdiction is not equivalent to a power of judicial override; that is, the power to disregard legislation if the need arises in matters involving children.

The doctrine of parens patriae does not include such a general reviewing power of the court (see The Children’s Advocate at para 41). [ 75 ] In other words, except by way of judicial review, where appropriate, parens patriae jurisdiction does not allow the court to supervise the exercise of discretion granted by statute to a local authority—in this case, the agency. [ 76 ] In sum, there is no gap in the Act or The Adoption Act , and therefore it was an error to invoke the doctrine of parens patriae in this case. [ 77 ] With respect to the First Nations Act , referred to by the trial judge as an interpretive tool, I respectfully disagree with her approach.

The federal legislation has no application in the case before us, as the child in question is not an Indigenous child. The federal legislation may apply to Indigenous children who are in the Manitoba child and family services system, but its application to such children in circumstances such as those before us is better left for another day. [ 78 ] Finally, there have been significant legislative changes to the Act in the area of child protection law since the trial judge released her reasons.

Many of those changes have been canvassed in this Court’s recent decision of Metis Child, Family and Community Services v CPR et al , 2023 MBCA 82 . [ 79 ] It is important to note, however, that no major changes were made to sections 38 , 38.1 , 39 , 45 or 48 of the Act , besides the deletion of sections 38(1) (

d) and 38(1) (e). The deletion of sections 38(1) (

d) and 38(1) (

e) is of no consequence to this appeal. [ 80 ] Having concluded that there was an error of law, there is no need for me to consider the second issue raised by the agency. Conclusion [ 81 ] The trial judge knew the law. However, she did not agree with the agency’s plan of adoption. The trial judge erred when she invoked the Court’s inherent jurisdiction to go outside of the express grant of statutory powers in the Act . By doing so, she did not respect the separation of powers between the judiciary and the legislature.

While I fully understand the challenges faced by trial judges who preside over child protection trials, when a permanent order of guardianship is granted to an agency, it is not for the court to act as the guardian of a child. As contemplated by the legislature, that is solely the agency’s role. The agency was entitled to have the

child placed for adoption with the foster parents so that he could remain permanently connected with them and his siblings. It is also worth mentioning that there was evidence of the agency and the foster parents being receptive to entering into an openness agreement with the respondents as contemplated in The Adoption Act . [ 82 ] For these reasons, I would allow the appeal. I would alter the permanent order of guardianship by deleting all six conditions in their entirety. The permanent order otherwise stands. As no costs were sought, none will be ordered.

CJM I agree: JA I agree: JA APPENDIX A The Child and Family Services Act , CCSM c C80 Orders of the judge 38(1) Upon the completion of a hearing under this Part, a judge who finds that a child is in need of protection shall order . . . (

b) that the child be placed with such other person the judge considers best able to care for the child with or without transfer of guardianship and subject to the conditions and for the period the judge considers necessary; or . . . (

f) that the agency be appointed the permanent guardian of the child. . . . Application to determine access during temporary order 39(2) Where the parents or guardian and the agency are unable to agree as to what constitutes reasonable access to the child, either party may make an application to the judge or [associate judge] who made the order for an order determining what provisions as to access are appropriate in the circumstances and the agency shall bear the burden of proof that any limitation of access is reasonable. Access by parents during permanent order 39(3) Subject to subsection (4), where a judge makes an order under clause 38(1)(

f) the agency shall have complete discretion as to the access, if any, which the parents or guardian shall have to the child. Application to determine access where permanent order 39(4) Where the parents or guardian are dissatisfied as to the access, if any, which the agency is willing to grant them under subsection (3) they may make an application to the judge who made the order for an order determining what provisions as to access, if any, are appropriate.

Variation of order under subsec. (2) or (4) 39(5) Either party may make a further application to the judge or [associate judge] who made the order under subsection (2) or (4) for a variation of the order on the grounds that there has been a change in circumstances or that the access permitted has been contrary to the best interests of the child.

No application where child placed for adoption 39(6) No application shall be made under subsection (4) or (5) where the child has been placed for adoption under The Adoption Act . . . . Effect of order of permanent guardianship 45(1) An order of permanent guardianship operates as an absolute termination of parental rights and obligations and the agency may, following the expiration of the allowable period of appeal under

section 44, place the child for adoption in accordance with The Adoption Act . . . . Application by parents to terminate permanent guardianship 45(3) The parents of a child with respect to whom an order of permanent guardianship has been made may apply to court for an order that the guardianship be terminated if (

a) the child has not been placed for adoption; and (

b) one year has elapsed since the expiry of the parents’ right to appeal from the guardianship order or, if an appeal was taken, since the appeal was finally disposed of. . . . Authority of the guardian 48 Where the director or an agency is the guardian of a child under this Act unless the guardianship is limited by the court, the director or agency shall (

a) have the care and control of the child; (

b) be responsible for the maintenance and education of the child; (

c) act for and on behalf of the child; and (

d) appear in any court and prosecute or defend any action or proceeding in which the child’s status is or may be affected. APPENDIX B The Adoption Act , CCSM c A2 Consents required for adoption of permanent ward 12 Where the child to be adopted is a permanent ward placed for adoption by a child and family services agency, a judge shall not make an order for adoption unless written consent to the adoption has been given in the prescribed form by

(

a) the director who, or the child and family services agency which, has been given permanent guardianship of the child either by voluntary surrender of guardianship or by an order of the court; and (

b) the child, if the child is 12 years of age or older. . . . Openness agreements 33(1) For the purpose of facilitating communication or maintaining relationships, an openness agreement may be made in writing between an adoptive parent or a prospective adoptive parent and any of the following: (

a) a birth parent of the child; (

b) if a child and family services agency has permanent guardianship of the child by court order, a member of the extended birth family of the child who is approved by that agency; (

c) any other person who has established a meaningful relationship with the child; (

d) a prospective adoptive parent or an adoptive parent of a minor sibling of the child; (

e) if the child is, or is entitled to be a member of an Indian band as defined in the Indian Act (Canada) , [ Indian Act , RSC, 1985 c I-5 ] a member of that Indian band. . . . Placement and adoption of permanent ward 35 This Division applies to the adoption of a permanent ward.