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CHILD PROTECTION - Supervision or guardianship - Permanent appointment or Crown wardship

Wednesday, November 11, 2020 @ 6:05 AM  

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Appeal by the Indigenous parents from the dismissal of their application to vary a permanent committal order related to two of their children. The children were apprehended by the Ministry in 2011. At the time, both appellants were struggling with drug and alcohol addiction as well as domestic violence issues. Both appellants had criminal records. The children were determined to be in need of protection and committed into the permanent care of the Ministry in 2013. The appellants applied to vary the permanent committal order in 2016. They had completed some programming and counselling but had not followed through with all recommendations for treatment. The variation judge, who took two years to render the decision, found the appellants failed to demonstrate a material change in circumstances or that the best interests of the children would be served by varying the order. The children, represented by counsel at trial and on appeal, opposed the appeal. They wished to remain with, and be adopted by, their foster parent.

HELD: Appeal dismissed. The variation judge did not fail to correctly apprehend the evidence. He did not fail to consider evidence favourable to the appellants’ position. He was clearly aware the appellants made some positive changes. He did not make findings of fact that were contradicted by the evidence and did not improperly rely on hearsay, opinion or irrelevant evidence. There was ample evidence that supported the variation judge’s conclusions that the appellants did not establish a material change in circumstances or that the children’s best interests would be served by a return to the appellants’ care. The variation judge properly focused on the entire period between the committal decision and the hearing of the variation application in determining whether there was a change in circumstances that warranted a variation. He did not underemphasize the importance of the children’s cultural heritage in determining their best interests. The appellants did not demonstrate they were prejudiced by the judicial deliberation delay. They provided an insufficient factual basis to permit raising the Charter issue for the first time on appeal.

A.M. v. Saskatchewan (Ministry of Social Services), [2020] S.J. No. 372, Saskatchewan Court of Appeal, R. Leurer, J.A. Tholl and J.D. Kalmakoff JJ.A., October 6, 2020. Digest No. TLD-November92020005