Director of Child and Family Services v. D.M.P. et al., 2010 MBCA 112

• Judge: Steel, J.A.
• Court: Court of Appeal (Manitoba)
• Case Date: October 26, 2010
• Jurisdiction: Manitoba
• Citations: 2010 MBCA 112;(2010), 262 Man.R.(2d) 66 (CA)

CFS v. D.M.P. (2010), 262 Man.R.(2d) 66 (CA);

      507 W.A.C. 66

MLB headnote and full text

Temp. Cite: [2011] Man.R.(2d) TBEd. JA.001

The Director of Child and Family Services (petitioner/respondent) v. D.M.G. and W.G.S. (respondents/respondents) and J.A.M.P. (respondent/applicant) and The Attorney General for Manitoba (respondent)

(AH 10-30-07349; 2010 MBCA 112)

Indexed As: Director of Child and Family Services v. D.M.P. et al.

Manitoba Court of Appeal

Steel, J.A.

December 13, 2010.

Summary:

A seven year old girl and a 2.5 year old boy were apprehended after the girl arrived at school with racist writings and drawings covering her body. The children were placed with their aunt and her husband as foster parents. The Director of Child and Family Services applied to become the children's permanent guardian. The children's mother and the girl's father did not oppose the application. The boy's father opposed the application and wanted both children to be returned to him.

The Manitoba Court of Queen's Bench, Family Division, in a decision reported at (2010), 248 Man.R.(2d) 284; allowed the Director's application. The boy's father filed and served a notice of appeal outside of the timelines provided for in the Child and Family Services Act. He moved for an order extending the time for filing and serving the notice of appeal under s. 44(2) of the Act.

The Manitoba Court of Appeal, per Steel, J.A., denied the motion.

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. Additional decisions regarding this matter are reported at (2009), 242 Man.R.(2d) 151; 2009 MBQB 190, (2009), 242 Man.R.(2d) 154; 2009 MBQB 193 and (2009), 244 Man.R.(2d) 6; 2009 MBQB 133.

Guardian and Ward - Topic 947

Public trustee or guardian - Appeals to courts (incl. judicial review) - Time for (incl. service) - [See Practice - Topic 9002 ].

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and service notice of appeal - A seven year old girl and a 2.5 year old boy were apprehended after the girl arrived at school with racist writings and drawings covering her body - The Director of Child and Family Services applied to become the children's permanent guardian - The boy's father (the father) wanted both children to be returned to him - The trial court allowed the Director's application - Under s. 44(1) of the Child and Family Services Act, the father had 21 days to file a notice of appeal and then a further 10 days in which to serve the notice - The father filed a notice of appeal three days late - The notice was served on the Director 54 days late and on the remaining respondents between 110 and 120 days late - The father moved for an order extending the time for filing and serving the notice of appeal - The Manitoba Court of Appeal, per Steel, J.A., denied the motion - The Act's abbreviated timelines reflected a desire to take into account the unique and nuanced challenges that adversarial litigation presented in child protection proceedings, including the child's need for stability and a sense of permanence, both of which could be irreparably compromised by unduly prolonged litigation - Delay took on a heightened concern in these proceedings - The father's excuse for the delay included inadvertence and a delay in obtaining legal aid - However, the court had only hearsay evidence regarding the father's continuous intention to appeal - Further, he had not established that his grounds of appeal had merit - See paragraphs 8 to 22.

Cases Noticed:

Zalizniak v. Zalizniak (2006), 212 Man.R.(2d) 114; 389 W.A.C. 114; 2006 MBCA 161, refd to. [para. 11].

Bohemier et al. v. CIBC Mortgages Inc. (2001), 160 Man.R.(2d) 39; 262 W.A.C. 39; 2001 MBCA 161, refd to. [para. 11].

Hunter v. Hunter (2000), 150 Man.R.(2d) 291; 230 W.A.C. 291; 2000 MBCA 134, refd to. [para. 12].

Nova Scotia (Minister of Community Services) v. S.E.L. and L.M.L. (2002), 205 N.S.R.(2d) 104; 643 A.P.R. 104; 2002 NSCA 62, refd to. [para. 14].

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. 17].

Coughlan et al. v. Westminer Canada Ltd. et al. (1993), 125 N.S.R.(2d) 171; 349 A.P.R. 171 (C.A.), refd to. [para. 23].

Sentinel Self-Storage Corp. v. Dyregrov et al. (2003), 180 Man.R.(2d) 85; 310 W.A.C. 85; 2003 MBCA 136, refd to. [para. 23].

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. 30].

Counsel:

C.L. Dunn, for the applicant;

K.J. Janovcik and A. Thiessen, for the respondent, the Director of Child and Family Services;

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

This motion was heard in Chambers on October 26, 2010, by Steel, J.A., of the Manitoba Court of Appeal, who pronounced the following decision on December 13, 2010.