A senior Manitoba judge has imposed new time limits for child-protection cases, saying that judges, because of "misplaced institutional kindness," had overlooked legal requirements for speedy hearings, in the hopes that children and families could be reunited over time.
The action echoes the Supreme Court of Canada in a drug-trafficking case known as R v Jordan last July, in which it set strict time limits for criminal proceedings, which have had the justice system in an uproar ever since. Entrenched delay is a problem that goes beyond criminal courts, and Manitoba's new rules are the first known court-imposed time limits in another legal realm since that ruling.
Children seized by Manitoba child-welfare agencies for their protection are for the most part from Indigenous homes and routinely wait in limbo for 12 to 18 months, in foster care and hotels. This is despite constitutional and provincial requirements for prompt hearings when their parents seek to fight for custody, says Glenn Joyal, Chief Justice of the Manitoba Court of Queen's Bench, who called that delay "just astounding." The new time limits are three to six months, following an initial deadline of 60 days to deal with preliminary matters.
"I understand the gravity of it," Chief Justice Joyal said of the Jordan ruling. "I understand how it's playing havoc in different places. But I actually welcome it as an opportunity."
He said setting time limits offers a chance to meet the moral imperative of keeping children from falling into limbo, while addressing the constitutional right of parents to prompt hearings.
That right was on display in a Manitoba Court of Appeal ruling this month in a case in which a child was seized at birth over concerns about the parents' mental health. The parents did not receive a trial date until 13-and-a-half months later. The court said that violated their right to life, liberty and security of the person protected by Section 7 of the Charter of Rights and Freedoms. Under a 2000 ruling by the Supreme Court of Canada, at the very least an interim hearing on whether a seized child needs protection from the parents should take place within a maximum of two weeks. And the Manitoba Family Services Act contains an expectation that a trial will occur as soon as possible.
Meredith Mitchell, a staff lawyer with Legal Aid Manitoba, specializing in child protection, called the new timelines "a huge step in the right direction," but said that "at the end of the day it still doesn't necessarily fit with what the Supreme Court said 17 years ago, which is that the hearings ought to be immediate."
The Jordan ruling inspired the new timelines for child-protection cases, posted on the court's website, which took effect on March 6; Chief Justice Joyal said the ruling convinced him that a higher court would impose deadlines on Manitoba if the judges did not draft the new rules themselves.
"One didn't have to be Harry Houdini intellectually to realize that was probably an omen of things to come in other areas," he told The Globe and Mail. "When you're dealing with an identifiable culture of complacency, that's where we had to act quickly."
For years, he said, the working assumption from child-welfare agencies and lawyers for parents was that families and the agencies needed time to work together to try to reunite parents with their children. And judges accepted the assumption, he said. The result: Courts were used as a "remediating waiting room."
"No one would object to the obvious ideal of reuniting families," Chief Justice Joyal said. "The problem was the way it was being done was counter to the spirit and in fact the provisions of the act in question [the Family Services Act]. Judges – in what I call this misplaced institutional kindness – moved away from their role and in their own way, perhaps unknowingly, contributed to a delay that was unacceptable."
The children in limbo sometimes ended up in prolonged stays in hotels, under questionable supervision, The Globe and Mail found in an investigation that followed the 2014 killing of Tina Fontaine, 15, of Sagkeeng First Nation, who had been placed in a Winnipeg hotel. The province has since largely stopped hotel placements.
Billie Schibler, the chief executive officer of the Métis Child and Family Services Authority, said in an interview she understands Chief Justice Joyal's frustration with delay, but "quite often we are still trying to work in building the strength of a family, and some families take longer in their healing journey than others."
For criminal cases, the Supreme Court of Canada set time limits of 18 months from the time a charge is laid until a trial is complete in Provincial Court, and 30 months in superior court, saying that a "culture of complacency" was harming the justice system. Since then, courts have thrown out two first-degree murder charges for unreasonable delay, lawyers have brought hundreds of applications to dismiss charges and, in Alberta, prosecutors dropped hundreds of criminal charges so they could focus on serious crime.
Chief Justice Joyal has also announced that he is borrowing two judges from the court's general division, which hears serious criminal and civil cases, and assigning them for a year to the family division, where they will help clear a backlog by hearing child-protection cases only. He says child-protection cases must take priority in the family division over other family-law cases such as those involving dispute over custody and maintenance payments.
"I've always said to my colleagues, 'It's important to make the distinction between matters that are urgent and matters that are important.' I don't doubt for a moment that any custody or maintenance matter in a family-law matter is important but they're not all necessarily urgent. All child-protection matters are urgent, just by definition."