Michif Child and Family Services v. V.E.M.B. et al., 2016 MBCA 13

• Judge: Monnin, Steel and leMaistre, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: September 28, 2015
• Jurisdiction: Manitoba
• Citations: 2016 MBCA 13;(2016), 326 Man.R.(2d) 69 (CA)

CFS v. V.E.M.B. (2016), 326 Man.R.(2d) 69 (CA);

      664 W.A.C. 69

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. FE.013

Michif Child and Family Services (petitioner/respondent) v. V.E.M.B. and D.R.D.J.S. (respondents/appellants)

(AH 15-30-08350; 2016 MBCA 13)

Indexed As: Michif Child and Family Services v. V.E.M.B. et al.

Manitoba Court of Appeal

Monnin, Steel and leMaistre, JJ.A.

February 1, 2016.

Summary:

A mother appealed a permanent order of guardianship granted under the Child and Family Services Act.

The Manitoba Court of Appeal allowed the appeal and set aside the permanent order of guardianship.

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 a restriction on publication under s. 75(2) of the Child and Family Services Act, and Maritime Law Book's editorial policy.

Courts - Topic 686

Judges - Disqualification - Bias - By trial or applications judge - [See Courts - Topic 691 ].

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - A mother appealed the granting of a permanent guardianship order under the Child and Family Services Act, asserting that the trial judge's intervention created a reasonable apprehension of bias - She asserted that the judge demonstrated that he had prejudged the matter and had a level of contempt for her - The Manitoba Court of Appeal stated that "It is well accepted that trial judges may intervene in order to clarify facts, confirm an understanding of the evidence and keep proceedings moving, particularly in child protection cases. ... I do not agree that the excerpts referred to from the trial transcript by the mother or any other comments made by the trial judge rose to the level required to demonstrate bias. I would not give effect to this ground of appeal." - See paragraph 62.

Evidence - Topic 464

Functions of counsel, judge and jury - Credibility of evidence - The Manitoba Court of Appeal, in allowing an appeal from the granting of a permanent guardianship order under the Child and Family Services Act, expressed concerns about the trial judge's credibility findings - The judge found that the mother's testimony was not credible and described the evidence that he accepted regarding the mother's ability to parent - He did not conduct a meaningful analysis of the evidence nor did he account for any of the inconsistencies between the testimony of agency workers and the mother - He made conclusory statements regarding the witnesses and failed to consider the totality of the evidence - As stated in F.H. v. McDougall (2008, SCC) "it would be an error for the trial judge to ignore the evidence of the defendant and simply concentrate on the evidence submitted by the plaintiff" - The judge found the agency workers to be professional and made no allowance for the mother's circumstances (including her apprehension at age 11, her history of drug abuse and domestic violence and the apprehension of her three older children) which provided insights into her cognitive functioning - Given her history, she understood that she had to participate in a parenting program as directed by the agency in order to be permitted to care for her child - Her overall level of intellectual functioning fell in the borderline range with mild to moderate impairments in her level of general vocabulary and a sever impairment in her systematic verbal abstract reasoning and visual-spatial organization - Her scores in short-term memory and concentration were average to low average - The judge provided no insight into the reasons which he found the foster mother to be sincere and an agency worker to be professional - While demeanour alone was relevant to credibility, it was a notoriously unreliable predictor of the accuracy of evidence - The judge's credibility findings could not be supported on any reasonable view of the evidence - The unsupported inferences and findings of fact and credibility constituted palpable and overriding error such that no deference was owed to the judge's decision - See paragraphs 45 to 57.

Evidence - Topic 4022

Witnesses - Credibility - Considerations - [See Evidence - Topic 464 ].

Guardian and Ward - Topic 815

Public trustee or guardian - Appointment - Child or adult in need of protection - Considerations - D.S. was apprehended from the hospital after his birth and placed with a foster parent who also had the care of D.S.'s older brother - The apprehension was due to the Michif Child and Family Services's (the agency's) concerns about the mother's past history of drug abuse, transience and domestic violence - At the time of D.S.'s birth, the mother was no longer using drugs and had a stable residence with the father of D.S. - The parents agreed to a six month temporary order - The agency learned that the father was on probation for a criminal offence and his involvement with D.S., the mother and the agency ended - The trial judge relied on the testimony of agency workers to conclude that the mother was a substandard parent who constantly brought D.S. into danger - He concluded that D.S. would be in need of protection if he were returned to the mother and made a permanent order for guardianship - The Manitoba Court of Appeal allowed the mother's appeal - In finding that the mother was a substandard parent, the trial judge misapprehended the evidence and made findings of fact not support by the evidence, thereby reaching an erroneous or unreasonable conclusion - The evidence he relied on did not rise to the level of danger required by the Child and Family Services Act - The mother had come a long way from being transient, abusing drugs and being in an abusive relationship - She had, among other things, taken all available parenting courses, and responded to mentoring, feedback and role modeling - She attended visits regularly - She checked in with the agency before moving to Souris, where she felt she had more supports and, after the Life Program, she moved back home and got a job working six days per week to pay off a hydro bill - During visits and while in the Life Program she demonstrated the ability to provide adequate care, supervision and control of D.S. - All that she needed was some hands-on experience with parenting and appropriate guidance and supervision - There was not clear, convincing and cogent evidence on the balance to establish that D.S. continued to be in need of protection at the time of the trial or would be in need of protection if returned to the mother - See paragraphs 20 to 44, 58 and 59.

Guardian and Ward - Topic 816

Public trustee or guardian - Appointment - Child or adult in need of protection - Permanent appointment - [See Guardian and Ward - Topic 815 ].

Guardian and Ward - Topic 819

Public trustee or guardian - Appointment - Child or adult in need of protection - Evidence - [See Guardian and Ward - Topic 815 ].

Guardian and Ward - Topic 823

Public trustee or guardian - Appointment - Appeals - [See Guardian and Ward - Topic 815 ].

Guardian and Ward - Topic 823

Public trustee or guardian - Appointment - Appeals - The Manitoba Court of Appeal reviewed the standard for appellate review of a permanent order of guardianship under the Child and Family Services Act - See paragraphs 16 to 18.

Guardian and Ward - Topic 944

Public trustee or guardian - Appeals to courts (incl. judicial review) - Nature and scope of - [See second Guardian and Ward - Topic 823 ].

Practice - Topic 8820

Appeals - General principles - Duty of appellate court re findings of credibility by trial judge - [See Evidence - Topic 464 ].

Cases Noticed:

Métis Child, Family and Community Services v. A.J.M. et al. (2008), 225 Man.R.(2d) 261; 419 W.A.C. 261; 2008 MBCA 30, leave to appeal dismissed (2008), 390 N.R. 382 (S.C.C.), refd to. [para. 16].

Folster v. Children's Aid Society of Winnipeg and Prince (1977), 4 R.F.L.(2d) 200 (Man. C.A.), refd to. [para. 16].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 16].

R. v. Clark (D.M.), [2005] 1 S.C.R. 6; 329 N.R. 10; 208 B.C.A.C. 6; 344 W.A.C. 6; 2005 SCC 2, refd to. [para. 16].

Child and Family Services of Winnipeg East v. K.A.D. et al. (1995), 102 Man.R.(2d) 262; 93 W.A.C. 262 (C.A.), refd to. [para. 17].

R. v. N.S. et al., [2012] 3 S.C.R. 726; 437 N.R. 344; 297 O.A.C. 200; 2012 SCC 72, refd to. [para. 18].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 18].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 48].

Law Society of Upper Canada v. Neinstein (2010), 259 O.A.C. 313; 99 O.R.(3d) 1; 2010 ONCA 193, refd to. [para. 55].

R. v. Smith (D.) (2010), 260 O.A.C. 180; 2010 ONCA 229, refd to. [para. 55].

R. v. G.G. (1997), 99 O.A.C. 44 (C.A.), refd to. [para. 55].

R. v. S.H.P-P. (2003), 215 N.S.R.(2d) 66; 675 A.P.R. 66; 2003 NSCA 53, refd to. [para. 55].

R. v. Levert (G.) (2001), 150 O.A.C. 208; 159 C.C.C.(3d) 71 (C.A.), refd to. [para. 55].

R. v. Oddleifson (J.N.) (2010), 255 Man.R.(2d) 68; 486 W.A.C. 68; 2010 MBCA 44, leave to appeal denied (2010), 413 N.R. 389; 268 Man.R.(2d) 319; 520 W.A.C. 319 (S.C.C.), refd to. [para. 56].

R. v. R.P., [2012] 1 S.C.R. 746; 429 N.R. 361; 2012 SCC 22, refd to. [para. 56].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 61].

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. 65].

Child and Family Services of Winnipeg v. J.M.F. et al. (2000), 153 Man.R.(2d) 90; 238 W.A.C. 90; 2000 MBCA 145, refd to. [para. 67].

Friesen v. Cascisa (2007), 212 Man.R.(2d) 161; 389 W.A.C. 161; 2007 MBCA 12, refd to. [para. 67].

Counsel:

K.L. Webb, for the appellants;

B.R. Murray, for the respondent.

This appeal was heard on September 28, 2015, by Monnin, Steel and leMaistre, JJ.A., of the Manitoba Court of Appeal. leMaistre, J.A., delivered the following judgment for the court on February 1, 2016.