Metis Child, Family and Community Services v. A.J.M. et al., (2006) 200 Man.R.(2d) 175 (QBFD)

• Judge: Aquila, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: February 06, 2006
• Jurisdiction: Manitoba
• Citations: (2006), 200 Man.R.(2d) 175 (QBFD);2006 MBQB 32

CFS v. A.J.M. (2006), 200 Man.R.(2d) 175 (QBFD)

MLB headnote and full text

Temp. Cite: [2006] Man.R.(2d) TBEd. FE.030

Metis Child, Family and Community Services (petitioner) v. A.J.M. and A.J.D. (respondents) and M.D.M. and D.D.M.M. (guardianship applicants) and E.J. (guardianship applicant)

(CP 01-01-08674; 2006 MBQB 32)

Indexed As: Metis Child, Family and Community Services v. A.J.M. et al.

Manitoba Court of Queen's Bench

Family Division

Winnipeg Centre

Aquila, J.

February 6, 2006.

Summary:

Parents involved in a child protection trial made a motion for a mistrial on the basis that there was a reasonable apprehension of bias respecting the trial judge.

The Manitoba Court of Queen's Bench, Family Division, dismissed 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.

Courts - Topic 555

Judges - Powers - To intervene in examination of witnesses - Parents involved in a child protection trial made a motion for a mistrial on the basis that there was a reasonable apprehension of bias respecting the trial judge given his numerous questions and interventions - The Manitoba Court of Queen's Bench, Family Division, stated that "... it has been established by both statute and case law that the proceedings in child protection cases, and as well in custody cases, where the best interest of the child is paramount, the proceedings are less formal and the rules of evidence have been relaxed. A trial judge can take a more active role, more so than in other litigation, in satisfying himself that the best interests test has been met. The trial judge has the right and a duty to intervene, to clarify and to ask questions in order to fully appreciate the evidence. He is to make a decision on the best evidence available. If not satisfied, he has available to him by statute, the right to call his own evidence." - See paragraph 9.

Courts - Topic 686

Judges - Disqualification - Bias - By trial judge - Parents involved in a child protection trial made a motion for a mistrial on the basis that there was a reasonable apprehension of bias respecting the trial judge given his numerous questions and interventions - The parents alleged that the trial judge asked 150 questions of the 21 witnesses called and alleged that the majority of the questions were offensive - The Manitoba Court of Queen's Bench, Family Division, reviewed the legal test for determining a reasonable apprehension of bias and dismissed the motion - The court held that its questions were asked for the purpose of clarification only.

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - [See Courts - Topic 686 ].

Courts - Topic 1821

Powers - Guardianship, custody, etc. - Mentally handicapped or incompetent persons - General - [See Courts - Topic 555 ].

Cases Noticed:

Child and Family Services of Winnipeg v. L.L. and C.L. (1994), 95 Man.R.(2d) 16; 70 W.A.C. 16 (C.A.), refd to. [para. 5].

Cundy v. Irving (1998), 106 B.C.A.C. 5; 172 W.A.C. 5; 37 R.F.L.(4th) 401 (C.A.), refd to. [para. 7].

Gordon v. Gordon (1980), 23 R.F.L.(2d) 266 (Ont. C.A.), refd to. [para. 8].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 11].

Woods v. Canada (Attorney General), [2005] M..J. No. 31 (C.A.), refd to.[para. 13].

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. 15].

Arsenault-Cameron et al. v. Prince Edward Island, [1999] 3 S.C.R. 851; 267 N.R. 386; 201 Nfld. & P.E.I.R. 1; 605 A.P.R. 1, refd to. [para. 18].

Eckervogt et al. v. British Columbia (Minister of Employment and Investment) (2004), 201 B.C.A.C. 302; 328 W.A.C. 302; 241 D.L.R.(4th) 685 (C.A.), refd to. [para. 19].

SOS-Save Our St. Clair Inc. v. Toronto (City) et al. (2005), 204 O.A.C. 63 (Div. Ct.), refd to. [para. 20].

Authors and Works Noticed:

Alexis, F., Reasonableness in the Establishing of Bias, [1979] Public Law 143, p. 152 [para. 14].

Counsel:

Michael Thomson, for the petitioner;

Alexander Arenson, for the respondents;

Edward Rice, for guardianship applicants;

James Cox, for guardianship applicant.

This motion was heard before Aquila, J., of the Manitoba Court of Queen's Bench, Family Division, Winnipeg Centre, who delivered the following judgment on February 6, 2006.