Métis Child, Family and Community Services v CPR et al, 2023 MBCA 82.
Summary
This case is an appeal of an order granting guardianship of A.D.R. to D.D. (the former partner of A.D.R.’s deceased father, S.J.M.) rather than A.D.M. (A.D.R.’s paternal aunt), in competing guardianship applications. A.D.M. argues that the trial judge erred in finding that the Federal Act does not apply to private guardianship applications. Peguis Child and Family Services [“Peguis CFS”] intervenes to argue that it does apply. A.D.M. also argues that… Read Full Text ▼
This case is an appeal of an order granting guardianship of A.D.R. to D.D. (the former partner of A.D.R.’s deceased father, S.J.M.) rather than A.D.M. (A.D.R.’s paternal aunt), in competing guardianship applications. A.D.M. argues that the trial judge erred in finding that the Federal Act does not apply to private guardianship applications. Peguis Child and Family Services [“Peguis CFS”] intervenes to argue that it does apply. A.D.M. also argues that the trial judge erred: (1) in his application of the values and principles underlying An Act respecting First Nations, Inuit and Métis children, youth and families [“the Federal Act”]; (2) in his finding of facts and the weight he attributed to them; and (3) by failing to give sufficient weight to the evidence regarding A.D.R.’s views. A.D.M. wants to admit fresh evidence. The Court found that the trial judge did not err in his decision. The Court dismissed the motion to admit fresh evidence and found that a variation proceeding was more appropriate. Appeal dismissed.
Region
Manitoba
Treaty Region(s)
- Treaty 1
Date
2023-09-26
Nation Name
Peguis First Nation
Jurisdiction
- MB: Manitoba Court of Appeal (MBCA)
Case Year
2023
File Type: application/pdf
File Size: 235 KB
Case Brief Case Link
(www.canlii.org)
Issues
Did the trial judge err in failing to apply the Federal Act?
Did the trial judge err by failing to give adequate weight to the foundations, objectives, intent and the overarching principles of the Federal Act and of the United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14?
Did the trial judge err by making erroneous and arbitrary assumptions or draw conclusions not supported by the facts?
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?
Did the trial judge err by failing to give adequate weight to the foundations, objectives, intent and the overarching principles of the Federal Act and of the United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14?
Did the trial judge err by making erroneous and arbitrary assumptions or draw conclusions not supported by the facts?
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?
Relevant Excerpts
[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.
[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].
[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.
[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.
[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].
[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.
Case History
Métis Child, Family and Community Srevices v CPR et al, 2-23 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.
Métis Child, Family and Community Services v CPR et al, 2022 MBCA 40.
Métis Child, Family and Community Services v CPR, 2021 MBQB 228.
Bill C92 Citations
Legislative Citations
An Act respecting Child and Family Services (Indigenous Jurisdiction and Related Amendments), SM 2023, c 26.
Child, Youth and Family Enhancement Act, RSA 2000, c C-12.
The Child and Family Services Act, CCSM c C80.
Sections 2; 2.1(5)(f); 75(2).
The Child and Family Services Amendment Act, SM 2022, c 30.
The Family Law Act, CCSM c F20.
Sections 35; 48
The Family Law Act, The Family Support Enforcement Act and the Inter-Jurisdictional Support Orders Amendment Act, SM 2022, c 15.
Section 106(3).
Child, Youth and Family Enhancement Act, RSA 2000, c C-12.
The Child and Family Services Act, CCSM c C80.
Sections 2; 2.1(5)(f); 75(2).
The Child and Family Services Amendment Act, SM 2022, c 30.
The Family Law Act, CCSM c F20.
Sections 35; 48
The Family Law Act, The Family Support Enforcement Act and the Inter-Jurisdictional Support Orders Amendment Act, SM 2022, c 15.
Section 106(3).
Case Law Considered
Barendregt v Grebliunas, 2022 SCC 22.
BJT v JD, 2022 SCC 24.
Palmer v The Queen, [1980] 1 SCR 759.
Stevens v Haley, 2019 MBCA 88.
Van de Perre v Edwards, 2001 SCC 60.
BJT v JD, 2022 SCC 24.
Palmer v The Queen, [1980] 1 SCR 759.
Stevens v Haley, 2019 MBCA 88.
Van de Perre v Edwards, 2001 SCC 60.
Tags: Best interests, Private guardianship order
Contact Us
Funding Partners
