A.F. v Saskatchewan (Social Services), 2019 SKCA 28

Court of Appeal for Saskatchewan Docket: CACV3134 Citation: A.F. v Saskatchewan (Social Services), 2019 SKCA 28Date: 2019-03-25 Between:A.F.AppellantAndThe Ministry of Social ServicesRespondentBefore: Richards C.J.S., Caldwell and Leurer JJ.A.Disposition: Appeal allowedWritten reasons by: The Honourable Mr. Justice CaldwellIn concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice LeurerOn Appeal From: FSM 40 of 2012, SaskatoonAppeal Heard: March 5, 2019Counsel: A.F. appearing on his own behalf E.

Anne Hardy and Jennifer English for the Respondent Caldwell J.A. [1] A.F. is the maternal grandfather of a child who is subject to a permanent protection order [Permanent Order] made under s.37(2) of The Child and Family Services Act, SS 1989-90, c C-7.2 [CFSA]. In proceedings before a Court of Queen’s Bench judge sittingon child protection hearings [Variation Judge], A.F. sought to vary the terms of the Permanent Order, asking that the child be placed inhis care indefinitely. He also asked the Variation Judge to designate him as a person of sufficient interest [PSI] with respect to hisgrandchild.

A.F. has appealed against the Variation Judge’s denial of his application.

In his notice of appeal, he asks this Court to setaside the Variation Judge’s decision and to place the child in his care and, in the alternative, to order an expedited pretrial conference ortrial in this matter. [2] The power afforded a judge under s. 23 (designation as a PSI), s. 37 (protection orders) and s. 39 (variation of protectionorders) of the CFSA is discretionary and, in an appeal, its exercise is reviewable if the judge acted upon some wrong principle of law,took into consideration irrelevant factors, overlooked or misapprehended some material evidence, failed to act judicially or was so clearlywrong that the decision will result in an injustice: A.C. v C.B., 2018 SKCA 19 at para 8; L.S.O. v S.O., 2016 SKCA 151 at para 13; B.L. vMinistry of Social Services, 2012 SKCA 38 at para 13, 393 Sask R 57; W.(C.) v Saskatchewan (Minister of Social Services) (1990), (SK CA), 25 RFL (3d) 308 (Sask CA) at 309. [3] In the circumstances of this case, I would allow A.F.’s appeal on the procedural grounds raised in the notice of appeal.

Iwould remit this matter to the Court of Queen’s Bench. [4] It is important to understand that the Permanent Order is not the subject of this appeal; however, the circumstances in whichit was made are material to the disposition of this appeal. In brief, the Ministry of Social Services persuaded a judge [Order Judge] toissue the Permanent Order on its undertaking “not to pursue” it for six months.

As it is recorded on the court record, this was so A.F.could “work with the foster parents and the Ministry to possibly work towards having [the child] placed in [A.F.’s] care.” Although aprotection hearing occurred, it was not of the sort normally conducted pursuant to ss. 36 and 71 of the CFSA.

Nonetheless, for thepurposes of this appeal, it is a fact the Permanent Order was issued and is a permanent protection order under s. 37 of the CFSA.However, I trust the circumstances in which the Permanent Order came to be issued will be unique—that is, not repeated. [5] Having said that, the detail of those circumstances must be explored in this appeal. Initially, no one other than the Ministryand the foster parents attended at the protection hearing before the Order Judge. For that reason, the Order Judge was prepared tosummarily issue the Permanent Order.

However, just as the Ministry moved to have the trial opened for that purpose, a person who hadbeen designated as a PSI in respect of the child made her presence known. She had been, at some point, A.F.’s partner or girlfriend andshe was accompanied to the hearing by A.F.

After the Order Judge had heard from her, he allowed the Ministry a brief recess, duringwhich time Ministry case workers, adoption personnel and counsel, the foster parents, as well as A.F. and his former girlfriendapparently discussed the matter and A.F.’s intentions and seem to have come to an agreement. [6] Following the recess, the Ministry advised the Order Judge that an agreement had been reached and asked him to make apermanent protection order in the form it sought, but to make the order subject to the Ministry’s undertaking “not to pursue it” for sixmonths.

Counsel for the Ministry also told the Order Judge: And so if it turns out that [A.F.] wants to apply to vary the permanent order within the six months, he may do so. Or--or he might choosenot, in which case, in six months time, we’ll proceed with the next step in the process. So-- [7] Following this, A.F. made representations and submissions to the Order Judge, including expressing his longstanding interestin his grandchild’s welfare and custody and his intention to arrange his own affairs so that he might persuade the Ministry and the courtthat he should have custody of his grandchild.

Having heard from A.F., the Order Judge was undoubtedly interested in what he had tosay. As I read the transcript, once A.F. had made himself and his intentions known to the Order Judge, the remainder of the proceeding

revolved around A.F. and the agreement between him and the Ministry and the foster parents. [ 8 ] At one point during the discussion the Order Judge remarked that the form of order sought by the Ministry would have to change because “we really didn’t have a trial”, to which the Ministry agreed. The Order Judge then said: So I wasn’t a hundred percent satisfied that if she [A.F.’s former girlfriend and person designated as a PSI to the child]--if you hadn’t worked something out, that the trial could have proceeded today in any event.

I thought it probably should have gone to a pre-trial--back to a pre-trial conference where the Ministry could have determined what their position was on it. But without mom showing up, without- -and nobody is aware of who the father is, I think that--I think that this would have been the order you would have received in any event. So I--I think we can just leave things the way they are on here. [ 9 ] Counsel for the Ministry then noted that the Ministry’s undertaking could not be put in the Permanent Order (see s. 37(2) ) but agreed that the undertaking should be put on the court record.

Whatever may be said of these circumstances, it is clear from the transcript that the delay in carrying out the Permanent Order—i.e., by not placing the child for adoption for six months—was to give A.F. time to apply for a variation of it. Counsel for the Ministry confirmed this subsequent to the proceeding in correspondence to A.F. [ 10 ] Acting on the undertaking and the confirmation he had received from the Ministry, A.F. brought an application under s. 39 of the CFSA , within the six-month period allowed to him, to vary the Permanent Order.

In his application, he asked that his grandchild be placed in his care indefinitely pursuant to s. 37(1)(b). A.F. also sought an order designating him as a PSI in respect of his grandchild. [ 11 ] When A.F.’s application eventually came on for a hearing, notwithstanding its undertaking and the circumstances in which the Permanent Order had been issued, the Ministry opposed it and the relief A.F. sought, taking the position that A.F. lacked standing to vary the Permanent Order because he was not a PSI at the time it had been made and, therefore, had not been a party to the hearing before the Order Judge.

The Ministry predicated this position on the wording of s. 39(1) of the CFSA , which states that “any party to the original protection hearing” (emphasis added) may apply to vary a protection order resulting from that hearing.

It also relied on s. 23(4), which provides that a “person designated … as a person having a sufficient interest in a child is a party to a protection hearing respecting that child.” [ 12 ] To be fair, before A.F. had arrived at the protection hearing that occurred before the Order Judge, the Ministry had advised the Order Judge that A.F. “was not a party” but had “expressed interest in having [the child].” Nonetheless, after his arrival, A.F. appears to have been treated by the Order Judge and the Ministry as a de facto party to that hearing.

I reach this conclusion based on several factors, including the representations the Ministry made to the Order Judge. Another factor is the endorsement on the court file granting the Permanent Order, which states that the individuals attending at the proceeding were counsel for the Ministry and A.F. for himself, it mentions no other individual—i.e., it does not refer to the foster parents or A.F.’s former girlfriend, who were in attendance.

Moreover, the terms of that endorsement expressly name A.F. as though he had been a party to the hearing. [ 13 ] As is evident, vis-à-vis A.F.’s standing, the Ministry’s position before the Variation Judge was 180 degrees from the position it had taken before the Order Judge. In fairness, the Variation Judge was likely unaware of the full degree of change in the Ministry’s position because it does not appear he had the benefit of a transcript of the protection hearing that had taken place before his brother judge.

Further, although the endorsement on the court file records the making of the Permanent Order and the Ministry’s undertaking “not to pursue it” as well as the purpose for that delay, it lacks most of the context in which the Permanent Order had been issued.

Certainly, the fact the undertaking had been given and the purpose of the undertaking had been raised in the variation application by A.F.’s counsel (he represented himself in this appeal), but her submissions failed to overcome the fact that A.F. had not been designated a PSI at the time the Permanent Order was made and, therefore, did not have the status of a party that is conferred under s. 23(4) of the CFSA . In the result, the Variation Judge found A.F. lacked standing to apply to vary the Permanent Order. [ 14 ] I find that conclusion was in error.

The Ministry obtained the Permanent Order on the heels of its representation to the Order Judge to the effect that A.F. was entitled to apply to vary it. That representation was tied directly to the Ministry’s undertaking “not to pursue” the Permanent Order, which undertaking was itself based on an agreement struck in the courtroom between the Ministry and A.F., among others, that obviated the need for a pretrial conference or trial. And, indeed, as the Order Judge observed, although trial had been opened, no trial had been held.

Importantly, had a hearing proceeded before the Order Judge or been adjourned, A.F. could have made an oral application to be designated as a PSI in respect of his grandchild. He then would clearly have had the standing to apply to vary the Permanent Order.

On the basis of the entirely unusual circumstances of this matter, I find A.F. was a party to the hearing before the Order Judge, where the Permanent Order was made, for the narrow purpose of having standing to apply to vary the Permanent Order under s. 39 of the CFSA . [ 15 ] Furthermore, the lack of PSI status adversely affected A.F.’s position in his application to vary. In his reasons, the Variation Judge briefly addressed the substance of A.F.’s application to vary, but he dismissed it on its merits in the alternative to the finding that A.F. had no standing.

However, because A.F. had not been designated as a PSI, he did not have access to 11 of the 13 affidavits that had been filed by the Ministry and that were before the Variation Judge. That is, A.F. did not have a full appreciation of the case he had to meet to obtain a variation of the Permanent Order. This was made clear on the record through the submissions of his then counsel. Given this circumstance, I would set aside the whole of the Variation Judge’s decision and remit the matter to the Court of Queen’s Bench for a new hearing.

I address the terms of this relief at the end of these reasons, but I must address another matter first. [ 16 ] While the Variation Judge addressed the merits of A.F.’s application, it is clear his comments in that regard were obiter and that the dismissal of A.F.’s variation application turned on the finding that A.F. lacked the standing to make it. Importantly, when prefacing his analysis of the merits, the Variation Judge accepted the Ministry’s submission that the

summary judgment rules under

Part 7 of The Queen’s Bench Rules applied in the context of an application under s. 39 of the CFSA . In this regard, the Variation Judge relied on G.L. v Ministry of Social Services , 2017 SKQB 48 , and Tchozewski v Lamontagne , 2014 SKQB 71 , 440 Sask R 34. However, I find it was an error of law to proceed in that manner. [ 17 ] The CFSA sets out a regime that permits the conduct of a child protection hearing in a

summary and expedited manner. Under the statutory regime, all proceedings are commenced by application to a court for a hearing and are initially heard in either the Provincial

Court or the Court of Queen’s Bench. As already noted, ss. 37 and 39 provide the judge presiding over a protection or variation hearing with discretionary powers. The judge may receive affidavit or viva voce evidence and, in the exercise of his or her discretion, must consider, inter alia , the factors set forth in s. 4 of the CFSA . This means that, acting within the bounds of his or her judicial discretion, a judge may grant or dismiss any application for an order under s. 37 or s. 39 without having resort to a viva voce hearing. Indeed, that is what occurred here on A.F.’s application to vary the Permanent Order. For that reason, at least in the circumstances of this case, I find the

summary judgment rules under

Part 7 of The Queen’s Bench Rules had no application to the proceedings before the Variation Judge and, frankly, there was no legal reason or procedural need to proceed in that manner. I observe further that the statutory regime undoubtedly puts in question the broader application of

Part 7 to proceedings under the CFSA (see Parts III and VIII, and s. 71 (and the fact hearings also occur in Provincial Court), and The Child and Family Services Regulations , c C-7.2 Reg 1), but that question must be answered another day because the Court did not receive full argument on this point (as noted, A.F. was not represented by counsel in this appeal). [ 18 ] As stated, I would set aside the decision of the Variation Judge.

However, given the limited access A.F. had to the evidence that was before the Variation Judge, I would grant A.F. 30 days from the date of this decision (or such further time as a judge of the Court of Queen’s Bench may allow) to apply to the Court of Queen’s Bench for an order designating him as a PSI in respect of his grandchild pursuant to s. 23 of the CFSA . If A.F. fails to apply within the time allowed, the Ministry shall be relieved of its undertaking “not to pursue” the Permanent Order.

If A.F. applies within the time allowed and is granted PSI status, that would arguably constitute a change in circumstances pursuant to s. 39(1) (

a) of the CFSA , leaving at question whether it would be in the best interests of the child to vary or terminate the Permanent Order. Accordingly, if A.F. applies and is granted PSI status, his application under s. 39 to vary the Permanent Order shall be set down for a new hearing before a judge of the Court of Queen’s Bench, without any further fetter on the discretion of the judge to address it on its merits or to direct the matter to pretrial conference or trial, if necessary. “Caldwell J.A.” Caldwell J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Leurer J.A.” Leurer J.A.