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

Tuesday, May 04, 2021 @ 6:34 AM  


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Appeal by Metis Child, Family and Community Services from a trial decision ordering the child MJ be placed with her maternal grandmother but ordering the agency to continue to be the legal guardian of MJ. The agency argued that the trial judge erred when he granted the order pursuant to s. 38(1)(b) of the Child and Family Services Act and when he made the order subject to conditions contingent upon the possible enactment and proclamation of provincial legislation. The trial judge acknowledged that it was not possible to pronounce another temporary order because of s. 41(1). The trial judge did not want to appoint the grandmother as permanent guardian because he believed that she would not continue to receive government funding, and he did not want to appoint the agency as permanent guardian because he believed that a complete severance of all parental ties was not in the best interests of MJ.

HELD: Appeal allowed. Permanent guardianship of MJ was awarded to the agency. Given that the previous order appointing the agency as temporary guardian did not continue after the application was disposed of, the agency could not continue to be or remain the guardian of MJ. Even if the trial judge could order that guardianship be transferred to the agency pursuant to s. 38(1)(b), the trial judge specifically indicated that MJ would be placed with the grandmother without transfer of guardianship. The trial judge further erred when he indicated that the order was to remain in effect until these conditions were met: legislation authorizing customary care to Indigenous children was implemented, consultation between the mother, grandmother and the agency occurred in regard to whether it was in the best interests of MJ that the grandmother be her customary caregiver, the Manitoba government determined whether it would enact legislation to provide for the payment of subsidies and supports to a guardian of a child in care, and if legislation was enacted, a determination was made as to the amount of financial assistance and supports which the grandmother would receive if she was appointed the guardian of MJ. These conditions contemplated termination of the order upon the enactment of legislation at some undetermined future time, unduly complicated MJ’s legal status and were not in MJ’s best interests. The trial judge failed to observe the separation of judicial, legislative and executive powers, and that the allocation of public funds was a core function of the legislative branch. It was in MJ’s best interests that the agency be appointed permanent guardian so that it could provide financial assistance to the grandmother and enter into a commitment agreement that would recognize the grandmother as the long-term placement for MJ. The effect of a permanent order, in the circumstances of this case, would ensure MJ remained in the care of the only parental figure who had consistently cared for her throughout her life, ensure she and the grandmother had the necessary and appropriate financial and other supports from a culturally appropriate agency, maintained a connection between MJ, her mother and her siblings as part of her extended family unit, and allowed for the possibility that the mother could apply for a termination of the permanent order.

Métis Child, Family and Community Services v. H.D.G.J., [2021] M.J. No. 55, Manitoba Court of Appeal, H.C. Beard, W.J. Burnett and J.L. Lemaistre JJ.A., March 4, 2021. Digest No. TLD-May32021005