J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2008 SKCA 115 Date: 20080908 Between: Docket: 1653 The Minister of Social Services (Respondent) Prospective Appellant and R.S. and N.W. (Appellants) Prospective Respondents Counsel: Charita N. Ohashi for the Prospective Appellant Marilyn Adsit for the Prospective Respondent Application: From: FSM 231 of 2007, J.C. of Battleford Heard: September 8, 2008 Disposition: Leave Denied (orally) Written Reasons: September 9, 2008 By: The Honourable Madam Justice Smith SMITH J.A. [1] The Minister of Social Services applied for leave to appeal an order of Gabrielson J., sitting on appeal from an order of Meekma P.C.J., in relation to the child K.W. dismissed the application from the bench following oral argument for the following reasons. [2] The child K.W. had been apprehended at birth due to the drug abuse of the mother. When the child was approximately 18 months old, the minister sought permanent order pursuant to s. 37(2) of the Act (The Child and Family Services Act, S.S. 1989-90, c. C-7.2). This order was granted by Meekma P.C.J. The child’s father, R.S., then appealed the order and sought to adduce fresh evidence in relation to his fitness to parent the child. Wright J., in chambers, ordered psychological report on R.S. and home study. The matter came back before Gabrielson J. With the agreement of the parties, Gabrielson J. received the psychological report on R.S. into evidence. Neither party sought to cross-examine the writer of the report. The report was very favourable to R.S. and recommended as follows: 1. [KW] be returned to his father’s care. It may be best to transition him gently with the foster mother taking KW for or day-long visits to his new home. On each visit some of his toys and clothing can be transferred and his room can be personalized for him. 2. [The father] be encouraged to maintain the course he is on. It would be good if he could find contact he trusts and respects who can track the progress of the family by meeting with them periodically for the next years. He should understand this as supportive measure as opposed to threat to his family. 3. [The father and mother] be encouraged to seek some counseling that might help them resolve negative emotional residue that might trigger relapses in substance abuse and other irresponsible behaviors tat may have been acquired. This might also help [the father] resolve his issues with authority figures and free him to take healthy role off the Reserve as well. 4. [The father] accompany [the mother] to 28-day drug program with [KW] to solidify their relationship and to ensure that [the mother’s] recovery will be maintained. [3] Gabrielson J. made an order pursuant to s. 37(1)(a) that K.W. be returned to the care of his father, subject to these conditions: 1. That there would be a transition period for a period of a maximum of six months, to comprise parental visits at the ministry office followed by day visits and then overnight visits in the parental home prior to returning K.W. to the care of R.S. 2. That R.S.’s custody of K.W. be subject to supervisory order for period of one year after K.W. is returned to his care. This period is subject to a number of conditions reflecting the recommendations in the psychological report and is not material to this application. [4] The minister seeks to appeal this order on the following grounds: 1. That the judge on appeal erred in ordering on concurrent basis that K.W. be returned to his father and also that the minister retain custody of K.W. on temporary basis, contrary to subsections 37(1) and 38(9) of The Child and Family Services Act. 2. In the alternative, the judge on appeal erred in rendering an order for supervision that exceeds one year contrary to subsection 37(6) of The Child and Family Services Act. 3. The judge on appeal erred in failing to ensure that all proceedings were recorded as required by s. 27 of The Child and Family Services Act. [5] Section 64 of the Act provides that any party may appeal the order of Queen’s Bench judge sitting on appeal on question of law with leave of judge of the Court of Appeal. [6] Cameron J.A. set out the test for an application for leave to appeal in Rothmans, Benson Hedges Inc. v. Saskatchewan, 2002 SKCA 119 (CanLII); 227 Sask. R. 121: The power to grant leave has been taken to be discretionary power exercisable upon set of criteria which, on balance, must be shown by the applicant to weigh decisively in favour of leave being granted: Steier v. University Hospital, 1988 CanLII 215 (SK CA), [1988] W.W.R. 303 (Sask. C.A., per Tallis J.A. in chambers). The governing criteria may be reduced to two-each of which features subset of considerations-provided it be understood that they constitute conventional considerations rather than fixed rules, that they are case sensitive, and that their point by point reduction is not exhaustive. Generally, leave is granted or withheld on considerations of merit and importance, as follows: First: Is the proposed appeal of sufficient merit to warrant the attention of the Court of Appeal? Is it prima facie frivolous or vexations? Is it prima facie destined to fail in any event, having regard to the nature of the issue and the scope of the right of appeal, for instance, or the nature of the adjudicative framework, such as that pertaining to the exercise of discretionary power? Is it apt to unduly delay the proceedings or be overcome by them and rendered moot? Is it apt to add unduly or disproportionately to the cost of the proceedings? Second: Is the proposed appeal of sufficient importance to the proceedings before the court, or to the field of practice or the state of the law, or to the administration of justice generally, to warrant determination by the Court of Appeal? does the decision bear heavily and potentially prejudicially upon the course or outcome of the particular proceedings? does it raise new or controversial or unusual issue of practice? does it raise new or uncertain or unsettled point of law? does it transcend the particular in its implications? [7] It is my respectful view that there is no merit to either of the last two proposed grounds of appeal. The order of Gabrielson J. clearly provides for supervision period of only one year after R.S. resumes custody of K.W. Section 27 of the Act applies to protection hearings. Gabrielson J. was sitting on appeal. While he did receive new evidence, as he is expressly authorized to do by s. 63 (4)(a), this did not take the form of viva voce evidence, but only of the psychological report on R.S. which was in written form and was filed by the agreement of the parties and was not subject to cross-examination. [8] With regard to the first ground, counsel for the proposed appellant makes two arguments. First, and most generally, it is argued that, while the judge on appeal had jurisdiction to make an order subject to conditions (see sections 63(4)(c) and 37(5)(a)), this power is not “broad enough” to permit the judge to make an order that both returns the child to the custody of parent, pursuant to s. 37(1)(a), and has the child remain in the custody of the minister for temporary period, pursuant to s. 37(1)(b). [9] Second, counsel argues that, practically speaking, the order is fraught with ambiguity, for it is unclear whether, during the transition period, the minister retains status as parent until the transition is complete and the child is returned to his father’s care, and, if so, who determines when the transition is complete? [10] Taking the second ground first, it seems entirely clear to me, from the very meaning of the word “transition” and the wording of the order, that the minister is to retain status as parent with the attendant decision-making authority until the transition is complete and the child is returned to the custody of the father. In any case, if there is any lingering ambiguity, the matter can be referred back to Gabrielson J. for clarification. [11] In relation to the first ground, note that s. 37(5)(a) provides as follows: 37(5) In making an order pursuant to subsection (1) or (3), the court may: (a) impose any terms and conditions that the court considers appropriate; and [12] This provision is worded very broadly. The transition period provided for in the order is one that was recommended by the psychological report and is manifestly in the best interest of the child, who has been in the care of his foster mother since birth. It is in my view highly doubtful that the Act should be interpreted, as counsel for the proposed appellant argues, to preclude an order returning the child to its parent’s custody with period of transition. [13] In any case, even if there is a scintilla of merit to the argument, I would not grant leave on the basis that to grant leave to appeal on this extremely technical ground would cause delay that is manifestly not in the best interest of the child in the circumstances of this case. Nor am I satisfied that the issue is of sufficient significance either to the parties or the wider public to warrant an appeal. [14] The application is dismissed.
The Minister of Social Services applied for leave to appeal an order of Gabrielson J., sitting on appeal from an order of Meekma P.C.J. in relation to the child K.W. Gabrielson J. made an order returning K.W. to its parent's custody with a period of transition after receiving a psychological report on R.S. The report was very favourable to R.S. The parties agreed to Gabrielson J. receiving the report and neither party sought to cross-examine the writer of the report. HELD: Leave denied. Even if there was a scintilla of merit to the argument, the Court would not grant leave to appeal on the basis that to grant leave to appeal on an extremely technical ground would cause delay that is manifestly not in the best interest of the child in the circumstances of this case. The issue is not of sufficient significance either to the parties or to the wider public to warrant an appeal.