Michif CFS v S.A.S. and J.A.A.M, 2022 MBKB 176.
Summary
The Michif Child and Family Services [“the Agency”] applied to the Court for an order finding the subject child, V.J.A.M-M., remains in need of protection. The Agency seeks a permanent order for the care of the child. The parents contest this request, stating that they can care for, and should care for, the child themselves. The Court proceeds through an analysis (at the request of… Read Full Text ▼
The Michif Child and Family Services [“the Agency”] applied to the Court for an order finding the subject child, V.J.A.M-M., remains in need of protection. The Agency seeks a permanent order for the care of the child. The parents contest this request, stating that they can care for, and should care for, the child themselves. The Court proceeds through an analysis (at the request of the Agency), to determine if the order can be made on a ‘summary judgment motion’ (a method of hearing and resolving all or part of a matter without a trial, subject to specific conditions). The Court finds that summary judgment is available for this matter, and makes a permanent order placing the child with their aunt, S.S.
Region
Manitoba
Treaty Region(s)
N/A
Date
2022-09-09
Nation Name
Red River Métis
Jurisdiction
- MB: Manitoba Court of Queen’s/King’s Bench (MBQB/MBKB)
Case Year
2022
File Type: application/pdf
File Size: 239 KB
Case Brief Case Link
(www.canlii.org)
Issues
1. Is summary judgment a fair and just method of adjudication in the circumstances of this case?
a. Does summary judgment allow the judge to make the necessary findings of fact;
b. Does summary judgment allow the judge to apply the law to the facts; and
c. Is summary judgment a proportionate, more expeditious and less expensive means to achieve a just result than going to trial;
2. Is there a genuine issue requiring a trial as to whether the child is in need of protection at the time of this hearing and if so, is there a genuine issue requiring a trial as to what order is in the best interest of the child?
3. If there is a genuine issue requiring a trial, can the trial be avoided by weighing the evidence, evaluating credibility, drawing inferences and/or calling oral evidence?
a. Does summary judgment allow the judge to make the necessary findings of fact;
b. Does summary judgment allow the judge to apply the law to the facts; and
c. Is summary judgment a proportionate, more expeditious and less expensive means to achieve a just result than going to trial;
2. Is there a genuine issue requiring a trial as to whether the child is in need of protection at the time of this hearing and if so, is there a genuine issue requiring a trial as to what order is in the best interest of the child?
3. If there is a genuine issue requiring a trial, can the trial be avoided by weighing the evidence, evaluating credibility, drawing inferences and/or calling oral evidence?
Relevant Excerpts
[7] The Court of Queen’s Bench Rules, Man Reg 553/88, Rule 20.07(1) states that a judge must grant summary judgment if they are satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.
[22] The Federal Act provides an expansive list of factors to be considered when determining the best interests of an Indigenous child. These further factors must be considered. In general, primary consideration must be given to all the factors enumerated in section 10(3) when determining the best interests of an Indigenous child (see British Columbia (Child, Family and Community Service) v. S.H., 2020 BCPC 82 (“S.H.”), at para. 124).
[23] The factors enumerated in section 10(3) are not examples of factors associated with the best interests of an Indigenous child. They are specific categories that must be addressed (S.H. at para. 125).
[24] The most significant difference between The Child and Family Services Act, CCSM c C80 (the “Act”), and the Federal Act in regards to this hearing is the Federal Act’s direction that the best interests of the child be considered at all stages of the process, whereas the Act only requires the best interests of the child to be considered when a particular section or subsection directs (S.H. at para. 126).
[41] Summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial and is therefore a fair and just method of adjudication.
[74] This is not a high bar for the Father to meet. There was no explanation provided by the Father as to why he had not attended to a physician. Had he done so, there would have been evidence to argue that the Father is on the path to making the necessary changes so as parent the child effectively, thereby demonstrating a genuine issue requiring a trial
[85] Father argues that Dr. Enns not considering the intergenerational trauma that the Father suffered in the Report results in a genuine issue requiring a trial.
[86] Dr. Enns, during his cross-examination, confirmed that issues relating to the Father’s experience with residential schools and the 60’s Scoop were assumed to be in existence and played a significant role in the Father’s life.
[87] As an apprehension involves the making of a decision, or the taking of an action, the best interests of the child must be a primary consideration in the making of that decision, or the taking of that action (see s. 10(1) of the Federal Act).
[90] Keeping this child in the care of the parents would have addressed the cultural and spiritual heritage of the child, her need for bonding with the parents, and the stability that would have provided the child.
[91] However, those best interest concerns do not outweigh the need for apprehension, and continued need for apprehension, given the serious concerns regarding the parents, as previously referenced.
[94] The child needs and deserves some stability and finality regarding her future care plans. The Temporary Order was previously pronounced so as to provide the parents with an opportunity to address any parenting concerns in a meaningful way. That has not happened.
[102] With respect to her background and Gladue factors, the existence of those factors in and of themselves do not create a genuine issue requiring a trial.
[106] How the abuse and trauma suffered by a parent manifests itself must be considered by the court in considering whether it is possible for the court to plot a path of reunification.
[111] The effect of residential schools, poverty, displacements, and substance abuse all impact on why a person may be before the court. A thorough canvassing of those factors with a parent would help the court understand why a parent is in child protection court (see C.G.).
[114] For the purpose of this hearing and decision, I am prepared to acknowledge and consider that the issues the parents face can be partially attributed to the legacy of colonialism as detailed by the Supreme Court of Canada in Gladue.
[116] However, in this case, given those Gladue factors, the ongoing nature of the parenting concerns, and the fact that the parents have not meaningfully addressed those concerns, the conclusion is that a permanent order is in the best interests of the child. I am not diminishing or minimizing those Gladue factors. In this case, however, those factors cannot overcome the conclusion of a permanent order being in the best interests of the child.
[139] There is nothing in either the Act or Federal Act that speaks to any obligation of an Agency to advise a parent of the outcome of such a reassessment. Until the enactment of the Federal Act, there was no requirement under the Act for such a reassessment. The Federal Act does not preclude a permanent order, but requires a reassessment should a child not be placed with a parent.
[22] The Federal Act provides an expansive list of factors to be considered when determining the best interests of an Indigenous child. These further factors must be considered. In general, primary consideration must be given to all the factors enumerated in section 10(3) when determining the best interests of an Indigenous child (see British Columbia (Child, Family and Community Service) v. S.H., 2020 BCPC 82 (“S.H.”), at para. 124).
[23] The factors enumerated in section 10(3) are not examples of factors associated with the best interests of an Indigenous child. They are specific categories that must be addressed (S.H. at para. 125).
[24] The most significant difference between The Child and Family Services Act, CCSM c C80 (the “Act”), and the Federal Act in regards to this hearing is the Federal Act’s direction that the best interests of the child be considered at all stages of the process, whereas the Act only requires the best interests of the child to be considered when a particular section or subsection directs (S.H. at para. 126).
[41] Summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial and is therefore a fair and just method of adjudication.
[74] This is not a high bar for the Father to meet. There was no explanation provided by the Father as to why he had not attended to a physician. Had he done so, there would have been evidence to argue that the Father is on the path to making the necessary changes so as parent the child effectively, thereby demonstrating a genuine issue requiring a trial
[85] Father argues that Dr. Enns not considering the intergenerational trauma that the Father suffered in the Report results in a genuine issue requiring a trial.
[86] Dr. Enns, during his cross-examination, confirmed that issues relating to the Father’s experience with residential schools and the 60’s Scoop were assumed to be in existence and played a significant role in the Father’s life.
[87] As an apprehension involves the making of a decision, or the taking of an action, the best interests of the child must be a primary consideration in the making of that decision, or the taking of that action (see s. 10(1) of the Federal Act).
[90] Keeping this child in the care of the parents would have addressed the cultural and spiritual heritage of the child, her need for bonding with the parents, and the stability that would have provided the child.
[91] However, those best interest concerns do not outweigh the need for apprehension, and continued need for apprehension, given the serious concerns regarding the parents, as previously referenced.
[94] The child needs and deserves some stability and finality regarding her future care plans. The Temporary Order was previously pronounced so as to provide the parents with an opportunity to address any parenting concerns in a meaningful way. That has not happened.
[102] With respect to her background and Gladue factors, the existence of those factors in and of themselves do not create a genuine issue requiring a trial.
[106] How the abuse and trauma suffered by a parent manifests itself must be considered by the court in considering whether it is possible for the court to plot a path of reunification.
[111] The effect of residential schools, poverty, displacements, and substance abuse all impact on why a person may be before the court. A thorough canvassing of those factors with a parent would help the court understand why a parent is in child protection court (see C.G.).
[114] For the purpose of this hearing and decision, I am prepared to acknowledge and consider that the issues the parents face can be partially attributed to the legacy of colonialism as detailed by the Supreme Court of Canada in Gladue.
[116] However, in this case, given those Gladue factors, the ongoing nature of the parenting concerns, and the fact that the parents have not meaningfully addressed those concerns, the conclusion is that a permanent order is in the best interests of the child. I am not diminishing or minimizing those Gladue factors. In this case, however, those factors cannot overcome the conclusion of a permanent order being in the best interests of the child.
[139] There is nothing in either the Act or Federal Act that speaks to any obligation of an Agency to advise a parent of the outcome of such a reassessment. Until the enactment of the Federal Act, there was no requirement under the Act for such a reassessment. The Federal Act does not preclude a permanent order, but requires a reassessment should a child not be placed with a parent.
Case History
None.
Bill C92 Citations
Legislative Citations
The Child and Family Services Act, CCSM c 80.
Sections 17(1) & (2); 38(1)(b); 41(1)
(Note: Section 41(1) has since been repealed and replaced with section 41).
The Court of Queen’s Bench Act, CCSM c C280.
(Note: The Act has since been replaced with The Court of King’s Bench Act. In addition, section 20.07(1) has been repealed, but the link to its amendment can be found here).
Sections 20.03(2); 20.07(1)
Sections 17(1) & (2); 38(1)(b); 41(1)
(Note: Section 41(1) has since been repealed and replaced with section 41).
The Court of Queen’s Bench Act, CCSM c C280.
(Note: The Act has since been replaced with The Court of King’s Bench Act. In addition, section 20.07(1) has been repealed, but the link to its amendment can be found here).
Sections 20.03(2); 20.07(1)
Case Law Considered
Hryniak v Mauldin, 2014 SCC 7.
R v Gladue, 1999 CanLII 679 (SCC).
Bibeau et al v Chartier et al, 2022 MBCA 2.
Dakota Ojibway Child and Family Services et al v MBH, 2019 MBCA 91.
Michif CFS v KLB and AP, 2022 MBQB 144.
Sensible Capital Corp v Galton Corporation, 2020 MBQB 159.
5976511 Manitoba Ltd et al v Taylor McCaffrey LLP et al, 2020 MBQB 48.
Anishinaabe CFS v DA et al, 2017 MBQB 7.
Alberta (Child, Youth and Family Enhancement Act, Director) v JSA, 2019 ABPC 32.
British Columbia (Child, Family and Community Service) v SH, 2020 BCPC 82.
New Brunswick Minister of Social Development v MA and RA, 2014 NBQB 130. (Not available on CanLII).
Children’s Aid Society of Brant v CG, 2014 ONCJ 197.
R v Gladue, 1999 CanLII 679 (SCC).
Bibeau et al v Chartier et al, 2022 MBCA 2.
Dakota Ojibway Child and Family Services et al v MBH, 2019 MBCA 91.
Michif CFS v KLB and AP, 2022 MBQB 144.
Sensible Capital Corp v Galton Corporation, 2020 MBQB 159.
5976511 Manitoba Ltd et al v Taylor McCaffrey LLP et al, 2020 MBQB 48.
Anishinaabe CFS v DA et al, 2017 MBQB 7.
Alberta (Child, Youth and Family Enhancement Act, Director) v JSA, 2019 ABPC 32.
British Columbia (Child, Family and Community Service) v SH, 2020 BCPC 82.
New Brunswick Minister of Social Development v MA and RA, 2014 NBQB 130. (Not available on CanLII).
Children’s Aid Society of Brant v CG, 2014 ONCJ 197.
Tags: Best interests, Best interests outweighing priority placement, Permanent order, Summary judgement
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