Métis Child, Family and Community Services v CPR et al, 2022 MBCA 40.

Should Peguis CFS be allowed to intervene in the appeal?

Does Peguis CFS have a direct interest in the appeal, and would they bring a useful and different perspective?

Would Peguis CFS unfairly expand the appeal or add new evidence?

Would Peguis CFS’s intervention cause delay or unfairness to the parties?

What should the final result of the intervention motion be?

[4] For the following reasons, I am persuaded that the interests of justice would best be served by granting Peguis CFS leave to intervene in the appeal upon terms and conditions.

[12] In his reasons, the judge noted that reference to the Act had been made during the course of the guardianship trial. He stated that, in order to decide the competing guardianship applications, he was not required to decide whether the Act applied to a private guardianship application under the CFSA, but he “doubt[ed] the applicability” (at para 26) of the Act save for foundational principles that are common to both the Act and the CFSA, such as the paramount consideration of the best interests of the child, respect for cultural and linguistic heritage, and participation of Indigenous communities in matters relating to their families and children.

[19] Peguis CFS says carving out private guardianships from the applicability of the Act is not only detrimental to individual Indigenous children and families, but also to the jurisdiction of Indigenous governing bodies in relation to child and family services. The position of Peguis CFS is that the Act recognizes its inherent right to be notified of the guardianship applications, the right to make representations at the hearing itself, and the right to the principles and standards set out in the Act being considered by the judge.

[24] There is no dispute as to the relevant principles to consider in the exercise of the discretion under r 46.1 (see Interlake Reserves Tribal Council Inc et al v The Government of Manitoba, 2020 MBCA 126 at paras 17-19). An application for intervention must not be looked at narrowly, but more broadly with the overriding concern being whether the interests of justice would best be served by granting leave to intervene.

[25] In terms of the nature of the case and the issues that it raises, while the appeal, at first blush, appears to be a purely private matter, it is not. The governing framework for Indigenous children and families in Manitoba is an important matter of public interest. The law as to the boundaries of federal, provincial and Indigenous jurisdiction and standards is not settled. As Peguis CFS puts it in its memorandum, this area of law is “special, evolving, and expanding.” I am also mindful of the fact that Parliament has now implemented UNDRIP in areas of federal jurisdiction (see United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14). The fact that there is disagreement in other provinces as to whether the Act applies to a private guardianship confirms that this appeal engages important questions not just to the parties, but to the public generally.

[26] In my judgment, Peguis CFS has a direct interest in this case, one that cannot fully be protected by A.D.M. (see Interlake Reserves Tribal Council Inc at para 46). While Peguis CFS and A.D.M. share the same ultimate objective in the private guardianship dispute, Peguis CFS has wider concerns as to “an Indigenous perspective” (at para 58) about the Act and the overall legal framework for Indigenous children and families in Manitoba that A.D.M. could not reasonably speak to at the appeal.

[31] In summary, I am satisfied that Peguis CFS should be granted leave to intervene as it has both a direct interest in the outcome of the appeal and special expertise or a unique perspective relating to the subject matter of the appeal—the application of the Act to matters of private guardianship. Either reason is sufficient basis to grant it leave to intervene.

Métis Child, Family and Community Services v CPR et al, 2023 MBCA 82.

Métis Child, Family and Community Services v CPR et al, 2022 MBCA 40.

Métis Child, Family and Community Services v CPR, 2021 MBQB 228.

The Child and Family Services Act, CCSM c C80.
Section 75(2)

Court of Appeal Rules, MR 555/88R.
Rules 37.1; 46.1

Indian Act, RSC 1985, c I-5.

United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14.

Peguis First Nation Honouring our Children, Families and Nation Act, 2022.

Interlake Reserves Tribal Council Inc et al, v The Government of Manitoba, 2020 MBCA 126.

Métis Child, Family and Community Services v CPR, 2021 MBQB 228.

MSD v. A.C. and K.V. and Eel River Bar First Nation, 2021 NBQB 14.

SL v Alberta (Child, Youth and Family Enhancement Act, Director), 2021 ABPC 202.