Director of Child and Family Services (Man.) v. J.A., 2006 MBCA 44

• Judge: Twaddle, Monnin and Hamilton, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: May 08, 2006
• Jurisdiction: Manitoba
• Citations: 2006 MBCA 44;(2006), 205 Man.R.(2d) 50 (CA)

CFS v. J.A. (2006), 205 Man.R.(2d) 50 (CA);

    375 W.A.C. 50

MLB headnote and full text

Temp. Cite: [2006] Man.R.(2d) TBEd. MY.009

The Director of Child and Family Services (petitioner/respondent) v. J.A. (respondent/appellant)

(AH 04-30-06033; 2006 MBCA 44)

Indexed As: Director of Child and Family Services (Man.) v. J.A.

Manitoba Court of Appeal

Twaddle, Monnin and Hamilton, JJ.A.

May 8, 2006.

Summary:

The trial judge allowed the Director's application for permanent guardianship of a child. This was the unrepresented mother's third child permanently removed from her care. At trial, the judge refused to grant the mother an adjournment after granting a one day adjournment the day before. The judge also refused to permit the mother to argue that he should recuse himself for judicial bias. The mother protested and the trial proceeded in her absence. The judge's decision was partly based on the evidence presented in the two prior protection proceedings, including an expert psychiatric report. The mother appealed, submitting that the judge erred in denying an adjournment and denied her a fair hearing in refusing to permit her to speak to her bias motion.

The Manitoba Court of Appeal allowed the appeal and ordered a new trial. The judge failed to exercise his discretion judicially by summarily dismissing the mother's bias motion without giving her an opportunity to be heard. The mother was denied a fair hearing.

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.

Courts - Topic 589

Judges - Duties - To self-represented party - A self-represented mother - A mother represented herself in a child protection hearing - The Manitoba Court of Appeal, discussing the duties of a judge to a self-represented party, stated that a judge must maintain the role of arbiter and not assume the role of counsel - The judge was obligated to assist and accommodate the unrepresented party to permit his or her case, provided that the rights of the other party were not prejudiced - The court stated that "a judge in a child protection proceeding involving an unrepresented parent must balance the duty of fairness to the unrepresented parent with the need for as speedy and efficient a judicial determination as is feasible. ... the trial judge cannot become the advocate for the unrepresented litigant, nor can the judge provide legal advice. However, the judge's challenge is to take pains to ensure that a party's lack of legal training does not unduly prejudice his or her ability to participate meaningfully in the proceeding" - See paragraphs 18 to 20, 32.

Courts - Topic 592

Judges - Duties - To conduct fair and impartial proceedings - [See Guardian and Ward - Topic 906 ].

Guardian and Ward - Topic 881

Public trustee or guardian - Evidence and proof - General - The Manitoba Court of Appeal discussed, without deciding, "an issue regarding the admissibility, weight and use of reasons from prior apprehension proceedings, involving different children of the same parent, in a subsequent child protection hearing" - See paragraphs 41 to 43.

Guardian and Ward - Topic 906

Public trustee or guardian - The hearing - Right to be heard - The judge in a child protection hearing refused an unrepresented mother a further adjournment and, when the mother sought recusal for bias, the judge refused to hear her submissions - The mother began disrobing in protest, whereupon the judge quoted from a psychiatric report concerning her from a previous decision involving guardianship of another child - Following a short recess, the mother refused to reattend and the judge proceeded to grant permanent guardianship in her absence - The Manitoba Court of Appeal held that the mother was denied a fair hearing - The judge erred in completely refusing to hear what she wished to say on the recusal motion - That led to the disrobing incident and the judge's quoting from the psychiatric report (which was not in evidence) was inappropriate - The judge proceeded summarily and ruled against the mother using reasons from prior proceedings which were tendered in evidence without the mother being present to challenge admissibility - The court ordered a new hearing - See paragraphs 27 to 40.

Guardian and Ward - Topic 907

Public trustee or guardian - The hearing - Adjournments - A self-represented mother in a child protection hearing for permanent guardianship of her child sought an adjournment to allow her to find counsel - The mother had a history of unsatisfactory and difficult relationships with counsel and had months to obtain counsel before trial - The judge adjourned the hearing for one day, with the possibility of a further adjournment if the mother returned with some indication that she found someone to act for her - When the hearing resumed the next day, the mother had not spoken to a lawyer and was denied a further adjournment - The Manitoba Court of Appeal held that the judge did not err in exercising his discretion to refuse a further adjournment - The judge properly balanced the mother's right to be represented by counsel with the child's right to a timely disposition of the protection hearing - See paragraphs 21 to 26.

Cases Noticed:

Director of Child and Family Services (Man.) v. J.A. et al. (2004), 190 Man.R.(2d) 298; 335 W.A.C. 298; 2004 MBCA 184, refd to. [para. 14].

Baziuk v. BDO Dunwoody Ward Mallette et al. (1997), 34 O.T.C. 53; 13 C.P.C.(4th) 156 (Gen. Div.), refd to. [para. 19].

Davids v. Davids (1999), 125 O.A.C. 375 (C.A.), refd to. [para. 19].

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. 20].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 34].

Counsel:

J.A., on her own behalf;

M.A. Thomson, for the respondent.

This appeal was heard on November 4, 2005, before Twaddle, Monnin and Hamilton, JJ.A., of the Manitoba Court of Appeal.

On May 8, 2006, Hamilton, J.A., delivered the following judgment for the Court of Appeal.