Child apprehension violated charter rights, appeal argues

A Manitoba woman is appealing a court decision that terminated her parental rights after her son was apprehended at birth, arguing the process violated her constitutional right to a fair hearing.

Her case was decided by a summary judgment — where a motion is ruled on without a trial.

Because she wasn't given a chance to speak for herself, the woman's lawyer is arguing that her rights to life, liberty and security of the person — guaranteed by Section 7 of the Canadian Charter of Rights and Freedoms — were breached.

The woman can't be identified under the Child and Family Services Act.

How well does a parent feel heard … when everything's reduced to paperwork?- Legal Aid lawyer Meredith Mitchell

Manitoba Court of Appeal Justices Diana Cameron, William Burnett and Karen Simonsen heard the appeal on May 6 but have yet to issue a decision.

The woman's lawyer said she's concerned the summary judgment process is becoming too informal to adequately address child welfare issues.

"Parents want to be able to tell the court their side of the story," said Meredith Mitchell, a child protection defence lawyer at Legal Aid Manitoba.

"How well does a parent feel heard … when everything's reduced to paperwork?"

Mitchell's client has struggled with substance abuse and mental health issues for 15 years. Prior to her son's birth in 2017, she began seeking long-term addictions treatment, and requested a temporary order that would grant guardianship to Dakota Ojibway Child and Family Services for six months.

That changed when the woman was removed from the treatment program last February.

Instead, the agency sought a permanent order, which terminates all parental rights and obligations, and could result in the child being put up for adoption.

It is not sufficient in this day and age and in light of the case law … to insist that an oral hearing/conventional trial is the only fair hearing.- Justice Allan Dueck

Her case has already been reviewed in the Manitoba Court of Queen's Bench by Justice Allan Dueck, who argued that a summary judgment was sufficient.

Dueck wrote that the right to a fair hearing does not necessarily include a trial, and that a judge must grant summary judgment if there is no issue raised that requires a trial.

"It is not sufficient in this day and age and in light of the case law … to insist that an oral hearing/conventional trial is the only fair hearing," Dueck wrote in his decision.

"As long as the principles of fundamental justice are preserved and the right to a fair hearing is not lost, a summary judgment proceeding should not be cast away in favour of an oral hearing/conventional trial."

Dueck said he found the permanent order was justified and in the child's best interests.

Child welfare impacts marginalized families

Mitchell said in the appeal hearing that the lower court's decision was dismissive, and did not take into account the seriousness of the rights at stake — including that the appeal deals with a permanent order, which she said is often referred to as "the capital punishment of parent-child relationships."

She said people who come into contact with Child and Family Services are often already marginalized, a factor that needs to be considered in child welfare matters.

"[Child protection issues] will always have a disproportionate impact on poor families," said Mitchell.

"You cannot turn a blind eye to the fact that, disproportionately, the families that we're dealing with are poor, they're Indigenous, they're women-led families."

Rates of Indigenous children in care are also disproportionately high in Manitoba. There were 10,328 children in care in the province as of March 31, 2018. Eighty-seven per cent of these children are Indigenous.

Mitchell said her client is an Indigenous single mother who has four other children permanently in the care of Child and Family Services, but the lower court put no weight on any of these factors.

"If we do not face up to this reality, we risk forgetting the hard-learned lessons of the past," Mitchell said in the appeal hearing.

"Fairness in the child protection context demands recognition of this dynamic."

While the appeal was initially filed as a charter challenge, it later became clear other provinces already allow summary judgment in child welfare cases, Mitchell said.

Now, they're hoping for a decision that provides some direction for future child welfare cases where summary judgment is being considered — and to argue that if it is used, it should be considered with extreme caution, she said.

It's not out of the question for the case to later go on to the Supreme Court of Canada, Mitchell said.

"It raises an issue of national importance, which is something the Supreme Court would perhaps want to speak to," she said.