M.A.F. v. CFS,

• Jurisdiction: Manitoba
• Judge: Little, J.
• Neutral Citation: 2000 MBQB 87
• Date: 28 June 2000
• Court: Court of Queen's Bench of Manitoba (Canada)

M.A.F. v. CFS (2000), 147 Man.R.(2d) 192 (QBFD)

MLB headnote and full text

Temp. Cite: [2000] Man.R.(2d) TBEd. JL.030

M.A.F. and L.E.J.F. (applicants) v. Southeast Child and Family Services, D.D.M. and D.C. (respondents)

(CP 00-01-08220; 2000 MBQB 87)

Indexed As: M.A.F. et al. v. Child and Family Services of Winnipeg Southeast et al.

Manitoba Court of Queen's Bench

Family Division

Winnipeg Centre

Little, J.

June 28, 2000.

Summary:

Foster parents applied for an order for joint guardianship of a child. The respondent Agency, supported by the biological parents, moved to strike out the application on the basis that it disclosed no reasonable cause of action. The Agency argued that foster par­ents could not bring guardianship proceed­ings without the consent of either the parents or the Agency.

The Manitoba Court of Queen's Bench, Family Division, dismissed the motion to strike.

Guardian and Ward - Topic 215

Appointment and qualifications of guardian - Of children - Jurisdiction (incl. who may apply) - Foster parents applied for an order for joint guardianship of a child - The respondent Agency, supported by the biological parents, moved to strike out the application on the basis that it disclosed no reasonable cause of action - The Agency argued that foster parents could not bring guardianship proceedings without the consent of either the parents or the Agency - The Manitoba Court of Queen's Bench, Family Division, dismissed the motion to strike - Section 77 of the Child and Family Services Act did not exclude foster parents as guardian­ship applicants - See paragraphs 1 to 42.

Guardian and Ward - Topic 229

Appointment and qualifications of guardian - Of children - Evidence and proof - Foster parents applied for an order for joint guar­dianship of a child - The respondent Agency, supported by the biological par­ents, moved to strike out the application on the basis that it disclosed no reasonable cause of action - Also, while no motion was filed on behalf of the biological par­ents, they asked the court to declare that the applicants' standard of proof for guard­ianship was equivalent to that of the Agency in child protection proceedings, i.e., the applicants would be required to meet the twofold test of "need of protec­tion" and "best interests" of the child - The Manitoba Court of Queen's Bench, Family Division, refused to issue the declaration sought where the parents had not filed a motion to give the court jurisdiction and the request for a declaration was more properly a matter for the trial judge's determination - Further, the court would have refused the declar­ation where there was no authority for the proposition advanced by the bio­logical parents - See paragraphs 47 to 49.

Cases Noticed:

Ellett and Kyte v. Qualico Securities (Win­nipeg) Ltd. et al. (1990), 64 Man.R.(2d) 318 (C.A.), refd to. [para. 5].

Hall v. Puchniak et al. (1995), 99 Man.R.(2d) 186; 8 C.C.E.L.(2d) 313 (Q.B.), refd to. [para. 6].

Brown et al. v. Thompson, Dorfman, Sweatman (1991), 74 Man.R.(2d) 230 (Q.B.), refd to. [para. 6].

Lloyds Bank Canada v. Sherwood (1990), 64 Man.R.(2d) 288 (Q.B.), refd to. [para. 6].

Audette v. Rural Municipality of De Sala­berry (1956), 63 Man.R. 331 (Q.B.), refd to. [para. 6].

Centre Star Mining Co. v. Rossland Min­ers' Union (1903), 9 B.C.R. 531 (C.A.), refd to. [para. 15].

Whittaker v. Sanders (1975), 9 O.R.(2d) 238 (H.C.), refd to. [para. 15].

C.G. and M.G. v. Catholic Children's Aid Society of Hamilton-Wentworth (1998), 110 O.A.C. 338; 161 D.L.R.(4th) 466 (C.A.), refd to. [para. 26].

E.P. v. British Columbia (Superintendent of Family and Child Services) (1988), 12 R.F.L.(3d) 405 (B.C.C.A.), refd to. [para. 26].

E.G.S. v. Spallumcheen Band Council, [1999] 2 C.N.L.R. 306 (B.C. Prov. Ct.), dist. [para. 26].

Children's Aid Society of Winnipeg v. Maendel et al., [1977] 4 W.W.R. 606 (Man. C.A.), folld. [para. 37].

Cavers, Re (1955), 16 W.W.R.(N.S.) 267 (Man. Q.B.), refd to. [para. 37].

Ducharme v. Richardson, [1973] 1 W.W.R. 95 (Man. Q.B.), refd to. [para. 26].

J.M.N.C. and J.L.D. v. Child and Family Services of Winnipeg Central (1997), 122 Man.R.(2d) 81 (Q.B. Fam. Div.), refd to. [para. 38].

King v. Mr. and Mrs. B., [1985] 1 S.C.R. 87; 57 N.R. 17; 58 A.R. 275; [1985] 3 W.W.R. 1; 44 R.F.L.(2d) 113; 16 D.L.R.(4th) 576, refd to. [para. 47].

K.K. v. G.L. and B.J.L. - see King v. Mr. and Mrs. B.

King v. Low - see King v. Mr. and Mrs. B.

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, refd to. [Ap­pendix].

A.N.R. and S.C.R. v. L.J.W. - see Racine and Racine v. Woods.

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. Fam. Div.), 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].

Child and Family Services of Winnipeg v. D.A.M. et al. (1999), 137 Man.R.(2d) 181 (Q.B. Fam. Div.), 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. 77(1) [para. 11].

Authors and Works Noticed:

Cote, P., The Interpretation of Legislation in Canada (1984), generally [para. 30].

Counsel:

Paul Girdlestone, for the applicants;

Jeffrey Harris and Edward Gilson, for the respondent Agency;

William Armstrong, for the respon­dent parents.

This motion was heard before Little, J., of the Manitoba Court of Queen's Bench, Family Division, Winnipeg Centre, who delivered the follow­ing decision on June 28, 2000.