Child and Family Services of Western Manitoba v. C.L.H. et al., 2015 MBQB 203

• Judge: Menzies, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: December 10, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBQB 203;(2015), 322 Man.R.(2d) 277 (QB)

CFS v. C.L.H. (2015), 322 Man.R.(2d) 277 (QB)

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. JA.009

In The Matter Of: The Child and Family Services Act

And In The Matter Of: N.T.L.H. born [date omitted]

Child and Family Services of Western Manitoba (petitioner) v. C.L.H. and J.J.H. (respondents)

(CP 14-02-01024; 2015 MBQB 203)

Indexed As: Child and Family Services of Western Manitoba v. C.L.H. et al.

Manitoba Court of Queen's Bench

Brandon Centre

Menzies, J.

December 10, 2015.

Summary:

A child under four months of age was apprehended in March 2014 after sustaining injuries that were believed to be caused by the parents (shaken baby syndrome). Child and Family Services (CFS) obtained a three month temporary guardianship order (TGO) in April 2014. The parents applied to set aside the TGO on the basis that they were not advised of their right to counsel as required by s. 7 of the Charter and s. 34 of the Child and Family Services Act. CFS applied for a permanent guardianship order.

The Manitoba Court of Queen's Bench allowed the parents' application and set aside the TGO. The court proceeded to find that the child was in need of protection and granted a permanent guardianship order in favour of CFS.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 1206.4

Security of the person - General - Custody and access (incl. child protection) - [See Civil Rights - Topic 4658 ].

Civil Rights - Topic 3238

Trials - Due process, fundamental justice and fair hearings - Civil proceedings - Custody legislation - [See Civil Rights - Topic 4658 ].

Civil Rights - Topic 4652.3

Right to counsel - Entitlement - Custody cases - Parent's interests and rights - [See Civil Rights - Topic 4658 ].

Civil Rights - Topic 4658

Right to counsel - Entitlement - Guardianship cases - A child under four months of age was apprehended in March 2014 after sustaining injuries that were believed to be caused by the parents (shaken baby syndrome) - Child and Family Services (CFS) obtained a three month temporary guardianship order (TGO) in April 2014 - The parents applied to set aside the TGO - Although they consented to the TGO, they argued that they were not advised of their right to counsel as required by s. 7 of the Charter and s. 34 of the Child and Family Services Act - The Manitoba Court of Queen's Bench allowed the application and set aside the TGO - The facts of this case required that the parents receive legal assistance to allow them to participate in the court proceedings in an effective manner - The court's failure to inform the parents of the right to obtain legal advice prior to pronouncement of the TGO was a significant breach of the parents' right to a fair hearing under s. 7 of the Charter and s. 34 of the Act - Although a social worker advised the parents to obtain legal counsel, this was done shortly after the child was apprehended and not at a time when the parents would be compelled to make legal decisions that would affect their status as parents and the placement of the child - See paragraphs 7 to 17.

Guardian and Ward - Topic 815

Public trustee or guardian - Appointment - Child or adult in need of protection - Considerations - [See Guardian and Ward - Topic 816 ].

Guardian and Ward - Topic 816

Public trustee or guardian - Appointment - Child or adult in need of protection - Permanent appointment - A child under four months of age was apprehended in March 2014 after sustaining injuries that were believed to be caused by the parents (shaken baby syndrome) - Child and Family Services (CFS) applied for a permanent guardianship order - The Manitoba Court of Queen's Bench granted the application - The child remained in need of protection from her parents - This was not an appropriate case for a temporary order - After investigations conducted by CFS and the police, the court was unable to determine who was responsible for the injuries inflicted on the child - Until the person responsible was determined with some degree of certainty, the court could not be satisfied of the child's safety in the care of either parent - Neither parent had made much progress in the past year and a half - The mother had done little or nothing to address her victimization or mental health issues - The father remained in denial respecting his issues with alcohol and domestic violence - A temporary order would violate the legislature's intention to have child protection matters resolved without undue delay - See paragraphs 18 to 41.

Guardian and Ward - Topic 817

Public trustee or guardian - Appointment - Child or adult in need of protection - Temporary appointment - [See Guardian and Ward - Topic 816 ].

Guardian and Ward - Topic 821.2

Public trustee or guardian - Appointment - Consensual custody order - Cancellation of - [See Civil Rights - Topic 4658 ].

Guardian and Ward - Topic 910

Public trustee or guardian - The hearing - Role of counsel - [See Civil Rights - Topic 4658 ].

Cases Noticed:

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; 177 D.L.R.(4th) 124, refd to. [para. 11].

Counsel:

J. Cram, for the petitioner;

K. Webb, for C.L.H.;

A. Synyshyn, for J.J.H.

This matter was heard before Menzies, J., of the Manitoba Court of Queen's Bench, Brandon Centre, who delivered the following judgment on December 10, 2015.