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CHILD PROTECTION - Protective agencies and institutions - Supervision or guardianship

Tuesday, October 15, 2019 @ 9:20 AM  


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Appeal by the mother from summary judgment appointing the Agency as the permanent guardian of her daughter, AN. The appellant argued that the use of a summary judgment proceeding violated her right to a fair hearing under s. 7 of the Charter. The appellant suffered from post-traumatic stress disorder, anxiety, depression and borderline personality disorder, most of her life. In 2016, she and her then 15-year-old daughter consented to an order that AN be made a temporary ward of the Agency. The Agency subsequently applied for a further order of temporary guardianship and advised that it intended to bring a motion for summary judgment seeking a permanent order of guardianship. AN, through her amicus curiae, indicated that she preferred a permanent order of guardianship because she had been in and out of foster care for many years, and she believed that a permanent order would provide her with certainty and stability. At the summary judgment hearing, the appellant did not seek to cross-examine any witnesses or to adjourn the proceedings for that purpose. The motion judge noted that s. 36 of the Child and Family Services Act did not guarantee a parent the right to a trial and concluded that summary judgment was available in child protection proceedings, including proceedings where a permanent order was being sought. The motion judge was satisfied that the Agency established a prima facie case that AN remained in need of protection and that the appellant failed to establish a genuine issue requiring a trial. He was also satisfied that the Agency established a prima facie case that a permanent order was in the best interests of AN and that the appellant did not demonstrate with evidence that there was a genuine issue requiring a trial.

HELD: Appeal dismissed. The motion judge correctly determined that summary judgment was available in child protection proceedings, including proceedings where a permanent order was being sought, and that, in the circumstances of this case, there was no genuine issue requiring a trial. AN was in need of protection and a permanent order was in her best interests. The pre-trial conference served essentially the same purpose as a summary judgment conference or an intake hearing. At the pre-trial conference, the respondent did not object to the summary judgment motion, she did not indicate that she wished to cross-examine or that she wished to adduce oral evidence. The bulk of the Agency’s evidence was largely undisputed or admitted. The appellant did not suggest that the evidence at trial would have been any different than the evidence presented at the summary judgment hearing. She was unable to articulate any procedural advantage that she would receive at trial. The appellant did not dispute any of the factual findings made by the motion judge. She did not present any plan for the return of AN to her care.

Child and Family Services of Western Manitoba v. L.A.N., [2019] M.J. No. 236, Manitoba Court of Appeal, D.M. Cameron, W.J. Burnett and K.I. Simonsen JJ.A., September 6, 2019. Digest No. TLD-October142019001