Director of Child and Family Services (Man.) v. A.C. et al., (2007) 212 Man.R.(2d) 163 (CA)

• Judge: Huband, Steel and Hamilton, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: September 07, 2006
• Jurisdiction: Manitoba
• Citations: (2007), 212 Man.R.(2d) 163 (CA);2007 MBCA 9

CFS v. A.C. (2007), 212 Man.R.(2d) 163 (CA);

      389 W.A.C. 163

MLB headnote and full text

Temp. Cite: [2007] Man.R.(2d) TBEd. FE.011

The Director of Child and Family Services (petitioner/respondent) v. C.(A.) (child), C.(A.) (father) and C.(A.) (mother) (respondents/appellants)

(AH 06-30-06376; 2007 MBCA 9)

Indexed As: Director of Child and Family Services (Man.) v. A.C. et al.

Manitoba Court of Appeal

Huband, Steel and Hamilton, JJ.A.

February 5, 2007.

Summary:

An applications judge issued a treatment order under the Child and Family Services Act (CFSA) respecting a 14 year old Jehovah's Witness (AC) who refused to take a blood transfusion. The child and her parents appealed, claiming that as a mature minor AC had the right to refuse medical treatment even if that refusal might result in death or serious harm or was not in her best interests. The issues on appeal were therefore whether ss. 25(8) and (9) of the CFSA replaced the common law principle of mature minor so far as it related to a child who was in need of protection in the nature of essential medical treatment, and if it had, were any of AC's rights under the Charter violated, and if so, were those violations justifiable.

The Manitoba Court of Appeal dismissed the appeal.

Civil Rights - Topic 446

Freedom of conscience and religion - Health care - Blood transfusions - An applications judge issued a treatment order under the Child and Family Services Act (CFSA) respecting a 14 year old Jehovah's Witness (AC) who refused to take a blood transfusion - The child and her parents appealed, claiming that as a mature minor AC had the right to refuse medical treatment even if that refusal might result in death or serious harm or was not in her best interests - The Manitoba Court of Appeal dismissed the appeal, holding that the applications judge was correct - Section 25 of the CFSA represented an exhaustive code which replaced the common law in the context of child protection proceedings - While the provisions of the CFSA violated the right to freedom of religion, the violation was justified under s. 1 of the Charter - Medical treatment against one's wishes was also an infringement of one's liberty and right to security under s. 7 of the Charter; however, in this case, given the countervailing concerns of sanctity of life and protection of children, the infringement was not contrary to the principles of fundamental justice - The state had a continuing interest in the welfare of a child, even one with capacity - Moreover, the infringement occurred in a procedurally fair manner - While children were treated differently than adults, and children under 16 were treated differently than children 16 and over, this was not discriminatory as understood by s. 15 of the Charter - Age-based distinctions were a common and necessary way of ordering society - Analysing these distinctions in a contextual manner, there was a valid correspondence between the differential treatment and the increased vulnerability and varying maturity of minors in a child protection situation.

Civil Rights - Topic 643

Liberty - Limitations on - Health care - Consent to medical treatment - [See Civil Rights - Topic 446 ].

Civil Rights - Topic 650

Liberty - Limitations on - Child or adult protection - [See Civil Rights - Topic 446 ].

Civil Rights - Topic 1046

Discrimination - Religion - Court ordered medical treatment - [See Civil Rights - Topic 446 ].

Civil Rights - Topic 1047

Discrimination - Religion - Blood transfusions - [See Civil Rights - Topic 446 ].

Civil Rights - Topic 1393

Security of the person - Health care - Consent to medical treatment - [See Civil Rights - Topic 446 ].

Civil Rights - Topic 1397

Security of the person - Health care - Mature minor - [See Civil Rights - Topic 446 ].

Civil Rights - Topic 5654.1

Equality and protection of the law - Particular cases - Medical treatment of minor - [See Civil Rights - Topic 446 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (s. 1) - [See Civil Rights - Topic 446 ].

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - An applications judge issued a treatment order under the Child and Family Services Act (CFSA) respecting a 14 year old Jehovah's Witness (AC) who refused to take a blood transfusion - The child and her parents appealed - The Attorney General argued that the matter was moot because the medical emergency that resulted in the treatment order had long since played itself out - The treatment had been administered, AC had been discharged from hospital and the Director of Child and Family Services had abandoned his petition for an order declaring the child to be in need of protection - The Manitoba Court of Appeal heard the appeal, stating that there were good reasons which favoured the court hearing the appeal despite the mootness of the apprehension order itself - See paragraphs 28 to 39.

Guardian and Ward - Topic 812.2

Public trustee or guardian - Appointment - Mature minor - An applications judge issued a treatment order under the Child and Family Services Act (CFSA) respecting a 14 year old Jehovah's Witness (AC) who refused to take a blood transfusion - The child and her parents appealed arguing that there was nothing in the CFSA that expressly or impliedly displaced the common law mature minor rule - The Manitoba Court of Appeal disagreed, stating that the language in ss. 25(8) and 25(9) of the CFSA was sufficient to oust the common law rule for those under 16 and formed a complete and exclusive code for dealing with refusal of medical treatment in circumstances where an application was made under s. 25 of the CFSA - The court stated that the legislature intended to supersede the common law and to implement a specific policy choice based upon the best interests of a child under 16 in cases where there was a determination that a child's life or health was being endangered - Continued application of the mature minor rule in that situation would be inconsistent with the express provisions of the CFSA - The court stated that "... when faced with life and death decisions involving, in the doctor's opinion, essential medical treatment where parents have refused to allow treatment, the CFSA specifies that the child may be in need of protection and reasonable and probable grounds for apprehension arise. The statute then provides for an application to be made before a court to determine the matter on a best interests test. The legislation is explicit in referring to the child's consent only when he or she is 16 years of age or older" - See paragraphs 51 to 61.

Guardian and Ward - Topic 812.2

Public trustee or guardian - Appointment - Mature minor - The Manitoba Court of Appeal, per Steel, J.A., stated that "it has been suggested that some general guidelines from this court would be of assistance to the trial court [for dealing with an application for a treatment order under s. 25 of the Child and Family Services Act]. While it is dangerous for an appellate court to make sweeping statements with respect to the law, it is possible to articulate some general propositions extracted from my review of the cases for the purposes of guidance only" - The court thereafter offered some general guidance - See paragraphs 108 to 115.

Guardian and Ward - Topic 812.2

Public trustee or guardian - Appointment - Mature minor - [See Civil Rights - Topic 446 ].

Guardian and Ward - Topic 815.6

Public trustee or guardian - Appointment - Child in need of protection - Medical or health reasons - [See Civil Rights - Topic 446 and first and second Guardian and Ward - Topic 812.2 ].

Guardian and Ward - Topic 879

Public trustee or guardian - Powers - Respecting consent to medical treatment - [See Civil Rights - Topic 446 and first and second Guardian and Ward - Topic 812.2 ].

Guardian and Ward - Topic 931

Public trustee or guardian - Children in care - Management of - Medical treatment - [See Civil Rights - Topic 446 and first and second Guardian and Ward - Topic 812.2 ].

Infants - Topic 1403

Medical treatment - Consent - Blood transfusions - [See Civil Rights - Topic 446 and first Guardian and Ward - Topic 812.2 ].

Practice - Topic 8858

Appeals - Bar or loss of right of appeal - Moot issues - [See Courts - Topic 2286 ].

Cases Noticed:

Kennett v. Manitoba (Attorney General) (1998), 129 Man.R.(2d) 244; 180 W.A.C. 244 (C.A.), refd to. [para. 25].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 29].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 31].

R.B. v. Children's Aid Society of Metropolitan Toronto - see Sheena B., Re.

Sheena B., Re (1988), 25 O.A.C. 294; 47 D.L.R.(4th) 388 (C.A.), refd to. [para. 31].

Harrison Hot Springs (Village) v. Kamenka (2004), 199 B.C.A.C. 303; 326 W.A.C. 303; 243 D.L.R.(4th) 141; 2004 BCCA 347, refd to. [para. 32].

C.P.L., Re (1993), 112 Nfld. & P.E.I.R. 148; 350 A.P.R. 148 (Nfld. C.A.), refd to. [para. 33].

Director of Child, Family and Community Service (B.C.) v. S.J.B. et al. (2006), 212 O.A.C. 148; 270 D.L.R.(4th) 536 (C.A.), refd to. [para. 35].

C.U. v. Director of Child Welfare (Alta.) - see C.U. v. McGonigle et al.

C.U. v. McGonigle et al., [2003] 6 W.W.R. 629; 327 A.R. 25; 296 W.A.C. 25; 2003 ABCA 66, leave to appeal refused (2003), 321 N.R. 396; 363 A.R. 197; 343 W.A.C. 197 (S.C.C.), application for rehearing dismissed [2004] 1 S.C.R. 336; 2004 SCC 12, refd to. [para. 35].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270, refd to. [para. 38].

Vann Niagra Ltd. v. Oakville (Town) (2002), 161 O.A.C. 183; 214 D.L.R.(4th) 307 (C.A.), revd. [2003] 3 S.C.R. 158; 316 N.R. 201; 184 O.A.C. 279; 2003 SCC 65, refd to. [para. 38].

R. v. R.M.C. (1987), 45 Man.R.(2d) 38 (C.A.), refd to. [para. 48].

Gillick v. West Norfolk A.H.A., [1986] 1 A.C. 112 (H.L.), refd to. [para. 52].

Director of Child Welfare (Alta.) v. B.H., [2002] 7 W.W.R. 616; 302 A.R. 201; 2002 ABQB 371, affd. [2002] 7 W.W.R. 644; 303 A.R. 115; 273 W.A.C. 115; 2002 ABCA 109, leave to appeal refused (2002), 295 N.R. 198; 312 A.R. 392; 281 W.A.C. 392 (S.C.C.), refd to. [para. 53].

Johnston v. Wellesley Hospital et al. (1970), 17 D.L.R.(3d) 139 (Ont. H.C.), refd to. [para. 53].

J.S.C. and C.H.C. v. Wren (1986), 76 A.R. 115 (C.A.), refd to. [para. 53].

Van Mol et al. v. Ashmore, [1999] 6 W.W.R. 501; 116 B.C.A.C. 161; 190 W.A.C. 161 (C.A.), refd to. [para. 53].

R. (A Minor) (Wardship: Consent to Treatment), Re, [1991] 3 W.L.R. 592 (C.A.), refd to. [para. 55].

Bayer Aktiengesellschaft et al. v. Apotex Inc. (1998), 113 O.A.C. 1 (C.A.), leave to appeal refused (1999), 239 N.R. 200; 124 O.A.C. 199 (S.C.C.), refd to. [para. 56].

S.J.B. et al. v. Director of Child, Family and Community Service (B.C.), [2005] B.C.T.C. 573; 42 B.C.L.R.(4th) 321; 2005 BCSC 573, refd to. [para. 58].

Child and Family Services of Winnipeg Central v. K.L.W. et al., [2000] 2 S.C.R. 519; 260 N.R. 203; 150 Man.R.(2d) 161; 230 W.A.C. 161; 2000 SCC 48, refd to. [para. 64].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 64].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 64].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 65].

Starson v. Swayze et al., [2003] 1 S.C.R. 722; 304 N.R. 326; 173 O.A.C. 210; 2003 SCC 32, refd to. [para. 65].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 67].

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1, refd to. [para. 68].

Alberta v. K.B. - see Director of Child Welfare (Alta.) v. Jordan, P.C.J. et al.

Director of Child Welfare (Alta.) v. Jordan, P.C.J. et al. (2000), 279 A.R. 328; 196 D.L.R.(4th) 151; 2000 ABQB 976, refd to. [para. 69].

L.D.K., Re; Children's Aid Society of Metropolitan Toronto v. K. and K. (1985), 48 R.F.L.(2d) 164 (Ont. Prov. Ct.), refd to. [para. 82].

A.Y., Re (1993), 111 Nfld. & P.E.I.R. 91; 348 A.P.R. 91 (Nfld. U.F.C.), refd to. [para. 82].

Child and Family Services of Central Manitoba v. R.L. and S.L.H. (1997), 123 Man.R.(2d) 135; 159 W.A.C. 135 (C.A.), refd to. [para. 82].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 85].

L.H. v. Vigeant - see Harrison v. Vigeant et al.

Harrison v. Vigeant et al., [1996] 7 W.W.R. 448; 188 A.R. 8 (Q.B.), refd to. [para. 87].

Children's Aid Society of Ottawa v. C.S. et al. (2005), 205 O.A.C. 245 (Div. Ct.), refd to. [para. 87].

Children's Aid Society of Metropolitan Toronto v. T.H. (1996), 9 O.T.C. 274; 138 D.L.R.(4th) 144 (Gen. Div.), refd to. [para. 87].

Syndicat Northcrest v. Amselem et al., [2004] 2 S.C.R. 551; 323 N.R. 59; 2004 SCC 47, refd to. [para. 88].

Multani v. Commission scolaire Marguerite-Bourgeoys et al., [2006] 1 S.C.R. 256; 345 N.R. 201; 2006 SCC 6, refd to. [para. 91].

Sheena B., Re (1992), 58 O.A.C. 93; 96 D.L.R.(4th) 45 (C.A.), refd to. [para. 98].

Gosselin v. Québec (Procureur général), [2002] 4 S.C.R. 429; 298 N.R. 1; 2002 SCC 84, refd to. [para. 100].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 102].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 103].

R. v. J.S.M. (2005), 216 B.C.A.C. 85; 356 W.A.C. 85; 200 C.C.C.(3d) 400; 2005 BCCA 417, refd to. [para. 104].

T. (A Minor) (Wardship: Medical Treatment), Re, [1997] 1 All E.R. 906 (C.A.), refd to. [para. 108].

J.M. et al. v. Director of Child Welfare (Alta.) (2004), 364 A.R. 93; 4 R.F.L.(6th) 362; 2004 ABQB 512, refd to. [para. 110].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 2, sect. 7, sect. 15(1) [para. 17].

Child and Family Services Act, S.M. 1985-86, c. 8; C.C.S.M., c. 80, sect. 25 [para. 22].

Health Care Directives Act, S.M. 1992, c. 33, C.C.S.M., c. H-27, sect. 3 [para. 46]; sect. 4(2) [para. 40]; sect. 25 [para. 46].

Mental Health Act, S.M. 1998, c. 36, C.C.S.M., c. M-110, sect. 2 [para. 40].

Authors and Works Noticed:

Booth, Penny, Embracing Children - Non-Urgent Treatment, Dental Legal Issues And Children (2002), 32 Fam. L.J. 917, generally [para. 55].

Bridge, Caroline, Religious Beliefs and Teenage Refusal of Medical Treatment (1999), 62 Mod. L. Rev. 585, p. 592 [para. 77].

Driedger - see Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes.

Manitoba, Law Reform Commission Report, Minors' Consent to Health Care (1995), generally [para. 53]; p. 3 [para. 78].

Manitoba, Law Reform Commission Report, Self-Determination in Health Care (Living Wills and Health Care Proxies), Report No. 74 (1991), pp. 14 [para. 44]; 41 [para. 43].

McCafferty, Charlotte, Won't Consent? Can't Consent! Refusal of Medical Treatment (1999), 29 Fam. L.J. 335, generally [para. 55].

Rosato, Jennifer L., The Ultimate Test of Autonomy: Should Minors Have a Right to Make Decisions Regarding Life Sustaining Treatment (1996), 49 Rutgers L. Rev. 1, pp. 70, 71 [para. 73].

Schollenberg, Ed, Medical Care Disputes and the Best Interests of the Child: Integrating the Medical Evidence (1989), 18 Man. L.J. 308, pp. 336, 337 [para. 76].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), p. 341 [para. 56].

Counsel:

A. Ludkiewicz and S.H. Brady, for the appellants;

M.A. Thomson and A. Thiessen, for the respondent;

D.L. Carlson, for the Attorney General of Manitoba.

This appeal was heard on September 7, 2006, by Huband, Steel and Hamilton, JJ.A., of the Manitoba Court of Appeal. The following decision of the court was delivered by Steel, J.A., on February 5, 2007.