First Nations of Northern Manitoba Child and Family Services Authority v. Manitoba (Minister of Family Services and Housing) et al., (2014) 306 Man.R.(2d) 33 (CA)

• Judge: Steel, Monnin and Cameron, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: October 28, 2013
• Jurisdiction: Manitoba
• Citations: (2014), 306 Man.R.(2d) 33 (CA);2014 MBCA 42

CFS v. Man. (2014), 306 Man.R.(2d) 33 (CA);

      604 W.A.C. 33

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. MY.021

First Nations of Northern Manitoba Child and Family Services Authority (applicant/appellant) v. The Government of Manitoba, as represented by The Minister of Family Services and Housing, M.S., N.H., The Nisichawayasihk Cree Nation and Community Wellness Centre, R.E.F., J.A.M., and the said R.E.F. and J.A.M. as the guardians of R.S.S.M. (an infant) and A.I.F. (an infant) (respondents/respondents)

(AH 12-30-07855)

First Nations of Northern Manitoba Child and Family Services Authority (applicant/respondent) v. Nisichawayasihk Cree Nation and Community Wellness Centre (respondent/appellant) and The Government of Manitoba, as represented by The Minister of Family Services and Housing, M.S., N.H., R.E.F., J.A.M. and the said R.E.F. and J.A.M. as the guardians of R.S.S.M. (an infant) and A.I.F. (an infant) (respondents/respondents)

(AH 12-30-07857; 2014 MBCA 42)

Indexed As: First Nations of Northern Manitoba Child and Family Services Authority v. Manitoba (Minister of Family Services and Housing) et al.

Manitoba Court of Appeal

Steel, Monnin and Cameron, JJ.A.

May 6, 2014.

Summary:

On January 25, 2011, two foster children were removed from the foster parents' home by the agency and returned to their natural parents. On February 9, 2011, the foster parents requested a reconsideration under s. 51(4) of the Child and Family Services Act. On April 18, 2011, the agency's guardianship order terminated and the children were returned to their parents under agency supervision. On May 20, 2011, the First Nations of Northern Manitoba Child and Family Services Authority (the authority) stated that it lacked jurisdiction to reconsider the matter because the children had been returned to their parents' care. At issue was the foster parents' entitlement to an independent appeal of the authority's decision under s. 51(5) of the Act.

The Manitoba Court of Queen's Bench, Family Division, in a decision reported at (2012), 283 Man.R.(2d) 76, held that the foster parents were entitled to an independent appeal before an adjudicator under s. 51(5) of the authority's decision not to proceed with a reconsideration. The authority and the agency appealed, arguing that (1) to interpret the Act in such a manner was an undue intervention and duplication of a court's function and (2) the issue was now moot.

The Manitoba Court of Appeal allowed the appeal in part, agreeing that the issue was moot. However, the court exercised its discretion to determine the matter, concluding that the trial court's declaration that the appeal process set out in s. 51 of the Act applied even if the children were removed from their foster home to be returned to their natural parents should stand.

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 2286

Jurisdiction - Bars - Academic or moot issues - Two children were removed from their foster parents' home and returned to their natural parents - At issue was the foster parents' entitlement to an independent appeal of the decision under s. 51(5) of the Child and Family Services Act - The child protection agency and its First Nations authority took the position that the appeal process was not available to the foster parents because the agency was no longer the children's guardian and had no jurisdiction - The Minister disagreed, ordering that an independent adjudicator be appointed - The authority applied for a determination of rights under the Act - The application judge held that the Act applied to all situations in which the agency wished to remove children from their foster parents' care, including where the children were returned to their natural parents, and ordered the adjudication to proceed - The agency and the authority appealed, arguing, inter alia, that, as the children were no longer in the agency's care, the issue was moot - The Manitoba Court of Appeal agreed that the issue was moot - The children were no longer in need of protection - There was no ongoing lis or dispute between the foster parents and the agency - However, the court exercised its discretion to decide the matter despite the mootness - This was a matter of public importance dealing with children - The provisions at issue had not previously been litigated - There were a number of foster parents, agencies and authorities to whom the answer to the questions raised would be very relevant - See paragraphs 41 to 53.

Guardian and Ward - Topic 803

Public trustee or guardian - General - Legislation - [See first Guardian and Ward - Topic 5333 ].

Guardian and Ward - Topic 876

Public trustee or guardian - Powers - Exercise of - Appeals - [See both Guardian and Ward - Topic 5333 ].

Guardian and Ward - Topic 5333

Foster homes and parents - Foster parents - Status or standing (incl. appeals) - Two children were removed from their foster parents' home and returned to their natural parents - At issue was the foster parents' entitlement to an independent appeal of the authority's decision under s. 51(5) of the Child and Family Services Act - The Manitoba Court of Appeal applied the "modern principle of contextual interpretation" to interpret the Act - The Act's purpose was about the child's best interests - The question was how the foster parent appeal provisions fit into those interests - The appeal provisions, which were introduced in 2002, were the subject of discussion in the legislative assembly during which the Minister outlined the dual purpose of the appeal provisions: the best interests of the child and due process for foster parents - The court also looked at the rest of the Act to determine if there were other possible avenues of review for foster parents - This review revealed that, while there were several statutory provisions that foster parents could utilize, each had its own particular focus - No other provisions allowed for a foster child to be returned to the foster parents' home - In the final result, the court concluded that the legislation had to be interpreted to include the right of foster parents to initiate the appeal process even when the children had been removed to return them to their natural parents - See paragraphs 54 to 82.

Guardian and Ward - Topic 5333

Foster homes and parents - Foster parents - Status or standing (incl. appeals) - Two children were removed from their foster parents' home and returned to their natural parents - At issue was the foster parents' entitlement to an independent appeal of the decision under s. 51(5) of the Child and Family Services Act - The child protection agency and its First Nations authority took the position that the appeal process was not available to the foster parents because the agency was no longer the children's guardian and had no jurisdiction - The Minister disagreed, ordering that an independent adjudicator be appointed - The authority applied for a determination of rights under the Act - The application judge held that the Act applied to all situations in which the agency wished to remove children from their foster parents' care, including where the children were returned to their natural parents, and ordered the adjudication to proceed - The agency and the authority appealed -The Manitoba Court of Appeal dismissed the appeal - The legislation had to be interpreted to include the right of foster parents to initiate the appeal process even when the children had been removed to return them to their natural parents - Therefore, both the agency and the authority had jurisdiction and were required to conduct a review under the appeal provisions within the time limits specified - These provisions served a dual purpose, not only to determine the best placement for the children, but also to provide due process for foster parents - The provisions provided foster parents with an independent, expedited procedure to review placement decisions of an agency - See paragraphs 83 to 90.

Practice - Topic 8858

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

Statutes - Topic 502

Interpretation - General principles - Intention of Parliament or legislature - [See first Guardian and Ward - Topic 5333 ].

Statutes - Topic 1644

Interpretation - Extrinsic aids - Legislative history - Legislative debates - [See first Guardian and Ward - Topic 5333 ].

Statutes - Topic 2603

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Intention from whole of section of statute - [See first Guardian and Ward - Topic 5333 ].

Statutes - Topic 2614

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Legislative or statutory context - [See first Guardian and Ward - Topic 5333 ].

Cases Noticed:

B.W. v. Child and Family Services of Winnipeg (2009), 245 Man.R.(2d) 186; 466 W.A.C. 186; 2009 MBCA 95, refd to. [para. 27].

Western Canada Wilderness Committee v. Manitoba (2013), 288 Man.R.(2d) 216; 564 W.A.C. 216; 2013 MBCA 11, refd to. [para. 40].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 42].

Woods v. Canada (Attorney General) et al. (2005), 192 Man.R.(2d) 117; 340 W.A.C. 117; 2005 MBCA 24, refd to. [para. 44].

Director of Child, Youth and Family Enhancement (Alta.) v. T.S. et al., [2009] A.R. Uned. 264; 2009 ABQB 246, refd to. [para. 47].

Director of Child and Family Services (Man.) v. A.C. et al. (2007), 212 Man.R.(2d) 163; 389 W.A.C. 163; 2007 MBCA 9, refd to. [para. 52].

Kostiuk v. Director of Social Services (Winnipeg Central) (1996), 113 Man.R.(2d) 138; 131 W.A.C. 138 (C.A.), refd to. [para. 52].

R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178 N.R. 161; 79 O.A.C. 81, refd to. [para. 54].

Director of Child and Family Services (Man.) v. A.C. et al., [2009] 2 S.C.R. 181; 390 N.R. 1; 240 Man.R.(2d) 177; 456 W.A.C. 177; 2009 SCC 30, refd to. [para. 55].

Dakota Ojibway Child and Family Services Inc. v. J.O.D.S. (2001), 156 Man.R.(2d) 97; 246 W.A.C. 97; 2001 MBCA 47, refd to. [para. 56].

Children's Advocate (Man.) v. Child and Family Services of Western Manitoba et al. (2005), 192 Man.R.(2d) 23; 340 W.A.C. 23; 2005 MBCA 11, refd to. [para. 56].

M.A.F. et al. v. Child and Family Services of Winnipeg Southeast et al. (2000), 147 Man.R.(2d) 192; 2000 MBQB 87 (Fam. Div.), refd to. [para. 69, footnote 2].

J.G. et al. v. Awasis Agency of Northern Manitoba et al. (2012), 278 Man.R.(2d) 91; 2012 MBQB 102 (Fam. Div.), refd to. [para. 69, footnote 2].

Statutes Noticed:

Child and Family Services Act, S.M. 1985-86, c. 8; C.C.S.M., c. C-80, sect. 51 [para. 23].

Authors and Works Noticed:

Hansard (Man.) - see Manitoba, Hansard, Legislative Assembly Debates and Proceedings.

Manitoba, Hansard, Legislative Assembly Debates and Proceedings (May 19, 2009), p. 2167 [para. 65].

Manitoba, Hansard, Legislative Assembly Debates and Proceedings (June 10, 2010), p. 2880 [para. 64].

Office of the Children's Advocate, 2011-2012 Children's Advocate Annual Report (2012), p. 22 [para. 72].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 11 [para. 54].

Counsel:

J.B. Harvie, for the appellant/respondent, First Nations of Northern Manitoba Child and Family Services Authority;

J.L. Funke, for the respondent/appellant, the Nisichawayasihk Cree Nation and Community Wellness Centre;

I.D. Frost and L.S. Turner, for the respondent/respondent, the Government of Manitoba.

This appeal was heard on October 28, 2013, by Steel, Monnin and Cameron, JJ.A., of the Manitoba Court of Appeal. On May 6, 2014, Steel, J.A., delivered the following judgment for the court.