J.M.N.C. and J.L.D. v. Child and Family Services of Winnipeg Central, (1997) 122 Man.R.(2d) 81 (QBFD)

• Judge: Goodman, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: October 03, 1997
• Jurisdiction: Manitoba
• Citations: (1997), 122 Man.R.(2d) 81 (QBFD)

J.M.N.C. v. CFS (1997), 122 Man.R.(2d) 81 (QBFD)

MLB headnote and full text

Temp. Cite: [1997] Man.R.(2d) TBEd. OC.015

J.M.N.C. and J.L.D. (applicants) v. Winnipeg Child and Family Services (Central) (respondent) and Awasis Agency of Northern Manitoba (intervenor)

(CP 89-01-03279)

Indexed As: J.M.N.C. and J.L.D. v. Child and Family Services of Winnipeg Central

Manitoba Court of Queen's Bench

Family Division

Winnipeg Centre

Goodman, J.

October 3, 1997.

Summary:

The Winnipeg Child and Family Services (Central) obtained permanent guardianship of three native children in 1995. Thereafter, one of the children was placed in the applicants' care. It was his thirteenth placement since his birth in 1992. The applicants, who were not native, sought a guardianship order for the child. The Awasis Agency of Northern Manitoba intervened, arguing that the child should be transferred to their care.

The Manitoba Court of Queen's Bench, Family Division, granted guardianship of the child to the applicants.

Guardian and Ward - Topic 815

Public trustee or guardian - Appointment - Child in need of protection - Consider­ations and best interests of child - [See both Guardian and Ward - Topic 815.7 ].

Guardian and Ward - Topic 815.7

Public trustee or guardian - Appointment - Child in need of protection - Cultural heritage - The Winnipeg Child and Family Services (Central) obtained permanent guardianship of three native children in 1995 - Thereafter, one of the children was placed in the applicants' care - It was his thirteenth placement since his birth in 1992 - The applicants, who were not native, sought guardianship of the child - The Awasis Agency of Northern Manitoba intervened, arguing that the child should be transferred to their care - Particularly, the agency maintained that placing the child with the applicants was contrary to s. 421 of the program standards manual estab­lished under the Child and Family Services Act (the Native Child Placement Protocol) - While the Manitoba Court of Queen's Bench, Family Division, agreed that the placement was contrary to s. 421, the court concluded that it was in the child's best interests that he remain with the applicants.

Guardian and Ward - Topic 815.7

Public trustee or guardian - Appointment - Child in need of protection - Cultural heritage - Section 421 of the program standards manual established under the Child and Family Services Act outlined placement priorities of native children (the Native Child Placement Protocol) - A social care worker placed a child in the applicants' (a non native) home, contrary to s. 421 - It was the child's thirteenth place­ment since his birth in 1992 - There­after, the applicants sought guardianship of the child - The Awasis Agency of North­ern Manitoba intervened, arguing that the child should be transferred to their care so that he could be placed with a native couple who would maintain his cultural heritage - While the Manitoba Court of Queen's Bench, Family Division, agreed that the standards and procedures set out in s. 421 were reasonable and logical and must be applied by all social workers, in this case it was in the child's best interests that he remain with the applicants.

Guardian and Ward - Topic 816

Public trustee or guardian - Appointment - Child in need of protection - Permanent appointment - [See both Guardian and Ward - Topic 815.7 ].

Guardian and Ward - Topic 969

Public trustee or guardian - Practice - Costs - The Winnipeg Child and Family Services (Central) obtained perm­anent guardianship of three native children in 1995 - Thereafter, one child was placed in the applicants' care - It was his thir­teenth placement since his birth in 1992 - The applicants, who were not native, sought guardianship of the child - The Awasis Agency of Northern Manitoba intervened, arguing that the child should be transferred to their care - The Winnipeg Child and Family Ser­vices (Central) took no position in the matter - The Manitoba Court of Queen's Bench, Family Division, held that it was in the child's best interests that he remain with the applicants - The court further ordered that the agency and the Winnipeg Child and Family Ser­vices (Central) each pay one half of the ap­plicants' costs, up to an offer to settle, from which time double party and party costs were due.

Cases Noticed:

Racine and Racine v. Woods, [1983] 2 S.C.R. 173; 48 N.R. 362; 24 Man.R.(2d) 314; [1984] 1 W.W.R. 1, consd. [para. 65, Appendix].

E.J.T. v. P.M.V.P. and T.V.P. (1996), 110 Man.R.(2d) 219; 118 W.A.C. 219 (C.A.), refd to. [para. 95, Appendix].

K.K. v. G.L. and B.J.L., [1985] 1 S.C.R. 87; 57 N.R. 17; 58 A.R. 275; [1985] 3 W.W.R. 1, refd to. [Appendix].

New Brunswick (Minister of Social Ser­vices) v. G.C.C., [1988] 1 S.C.R. 1073; 85 N.R. 10; 85 N.B.R.(2d) 252; 217 A.P.R. 252; 14 R.F.L.(3d) 1, refd to. [Appendix].

Tearoe et al. v. Sawan (1993), 32 B.C.A.C. 133; 53 W.A.C. 133; 48 R.F.L.(3d) 392 (C.A.), refd to. [Ap­pendix].

W.R.L. and C.A.L. v. C.D.G. (1994), 91 Man.R.(2d) 207; 3 R.F.L.(4th) 43 (Q.B.), refd to. [Appendix].

Child and Family Services of Winnipeg v. B.A.B. and R.I.B. (1992), 84 Man.R.(2d) 116; 99 D.L.R.(4th) 504 (Q.B.), refd to. [Appendix].

Hayre v. Hayre (1975), 21 R.F.L. 191 (B.C.C.A.), refd to. [Appendix].

Fitzgerald v. Sagiaktook, [1979] 4 C.N.L.R. 17 (N.W.T.S.C.), refd to. [Appendix].

J.T.K. and L.S. v. Child and Family Ser­vices of Kenora-Patricia, [1985] 4 C.N.L.R. 76 (Ont. Fam. Div.), refd to. [Appendix].

Gray v. Director of Child Welfare (Alta.) (1987), 10 R.F.L.(3d) 162 (Q.B.), refd to. [Appendix].

Statutes Noticed:

Child and Family Services Act, R.S.M. 1987, c. C-80, C.C.S.M., c. C-80, sect. 2(1) [para. 64].

Authors and Works Noticed:

Manitoba, Department of Family Services, Child and Family Services Act Program Standards Manual, ss. 421(2) [para. 18]; 421(13) [para. 21].

Counsel:

Susan E. Elendiuk, for the applicants;

Michael A. Thomson, for the respondent;

Randolph B. McNicol, Q.C., and Noelia Bernardo, for the intervenor.

This application was heard before Good­man, J., of the Manitoba Court of Queen's Bench, Family Division, Winnipeg Centre, who delivered the following judgment on October 3, 1997.