Present: Dickson C.J. and Lamer, Wilson, La Forest, L'Heureux‑Dubé, Sopinka and Cory JJ.
on appeal from the court of appeal for manitoba
Family law ‑‑ Guardianship ‑‑ Child in need of protection ‑‑ Alternatives for order of protection ‑‑ Indication in evidence of a possible change in circumstances ‑‑ Matter referred back to the trial judge ‑‑ The Child and Family Services Act, C.C.S.M., c. C80, ss. 17(b)(i), 38.
APPEAL from a judgment of the Manitoba Court of Appeal (1988), 51 Man. R. (2d) 245, 14 R.F.L. (3d) 113, allowing an appeal from an order declaring the children not in need of protection. Appeal allowed in part.
Lionel Chartrand, for the appellant.
Donald Knight and Catherine Everett, for the respondent.
The following is the judgment delivered orally by
The Chief Justice ‑‑ We are unanimous in our decision as to the manner in which we should dispose of this appeal, and my colleague, Justice Sopinka, will deliver the judgment of the Court.
Sopinka J. ‑‑ Although we do not agree with the test applied by the majority of the Court of Appeal, we agree with their conclusion that the children are in need of protection pursuant to s. 17(b)(i) of The Child and Family Services Act, C.C.S.M., c. C80. We are of the opinion, however, that the Court of Appeal failed to adequately consider the alternatives in s. 38 of the Act, and in addition, we have been told of evidence that indicates that a change of circumstances may have occurred. Accordingly, we would refer the matter back to the trial judge to consider what order is now appropriate under s. 38. The children are to remain temporary wards pending further order. Accordingly, the appeal is allowed in part to this extent.
Judgment accordingly.
Solicitor for the appellant: Chartrand Law Office, The Pas.
Solicitors for the respondent: D. R. Knight & Associates, The Pas.
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