A.H. Appellant (Respondent) v. Ministry of Social Services and P.B., 2019 SKCA 70

Court of Appeal for Saskatchewan Docket: CACV3111 Citation: A.H. v Saskatchewan (Social Services), 2019 SKCA 70Date: 2019-07-30Between:A.H.Appellant (Respondent)AndMinistry of Social Services and P.B.Respondents(Applicants/Third Parties)Before: Ottenbreit, Caldwell and Barrington-Foote JJ.A.Disposition: Dismissed as mootWritten reasons by: The CourtOn Appeal From: FSM 3520 of 2015, ReginaAppeal Heard: June 5, 2019Counsel: Jill M.

Drennan for the Appellant Bryan Carter for the Respondents The Court [1] In Court of Queen’s Bench Chambers, the Ministry of Social Services [Ministry] had applied to extend a protection orderunder s. 38(2) of The Child and Family Services Act, SS 1989-90, c C-7.2, in respect of a child, born to A.H. and P.B., whom the Ministryhad taken into protective custody.

Before the Ministry’s application could be heard, the Ministry advised A.H. that it intended to returnthe child to P.B., who resides in Alberta, having determined the child would not be “in need of protection” or “at risk of incurring seriousharm” if returned to his father. [2] Given the foregoing, A.H. sought the Chambers judge’s assistance, invoking his parens patriae jurisdiction, to compel theMinistry to return the child to Saskatchewan.

The Ministry opposed A.H.’s application and advised the Chambers judge that, given itsassessment of P.B., it intended to withdraw its application to extend the protection order, which it ultimately did on July 11, 2017—a dayafter the Chambers judge issued his fiat dismissing A.H.’s application. [3] A.H. has appealed against the dismissal of her application for mandamus on several grounds, including grounds that raiseconstitutional questions and questions of public policy, but the Court is of the opinion that the appeal must be dismissed as moot. [4] In this case, A.H. sought interlocutory, injunctive relief to compel the Ministry to take an action with respect to a child in itscustody pending an extension of the child protection order.

However, the Ministry has withdrawn its application to extend the order andhas terminated protection proceedings in respect of the child, having assessed the child as no longer “in need of protection”. Accordingly,there is no child protection litigation or dispute before the courts with respect to the child pursuant to The Child and Family Services Act orotherwise to which the Ministry is a party.

Put in terms of Borowski v Canada (Attorney General), (SCC), [1989] 1 SCR342 at 353, the “tangible and concrete dispute has disappeared and the issues have become academic”. [5] While we appreciate the concerns and issues counsel for A.H. raised in the appeal hearing, we do not consider this to be anappropriate case to exercise our discretion to depart from the Court’s usual practice of refusing to hear an appeal that is moot. [6] Accordingly, the appeal is dismissed as moot. “Barrington-Foote J.A.”forOttenbreit J.A. per authorization “Caldwell J.A.” Caldwell J.A. “Barrington-Foote J.A.” Barrington-Foote J.A.