A.L.M. v. D.A.I., 2010 ABQB 791

Court of Queen ’ s Bench of Alberta Citation: A.L.M. v. Alberta (Director of Children ’ s Services Region 10), 2010 ABQB 791 Date: 20101209 Docket: FL14 00710 Registry: St. Paul Between: A.L.M. and D.A.I. Applicants - and - Director of Children ’ s Services Region 10 Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Gerald A.

Verville _______________________________________________________ Introduction [ 1 ] A.L.M. the biological mother of two children and her common law spouse D.A.I. (the “Applicants”) consented to a permanent guardianship order (the “PGO”). The Director of Children’s Services (the “Respondent”) placed the children with caregivers. The Applicants now seek to have the PGO set aside and the children returned to their care. Evidence was called with respect to the merits of this application.

[ 2 ] The Respondent submits that in the circumstances of this case this Court does not have jurisdiction to set the PGO aside. The Respond further submits that even if this Court has jurisdiction there is no merit to the application. Counsel appointed to represent the children supports the position of the Respondent. Issues [ 3 ] The issues are as follows: 1. Does this Court in the circumstances of this case have jurisdiction to hear the application? 2. If so, should the application be granted?

Background and Agreed Facts [ 4 ] The Applicants, with the advice of legal counsel, consented to a PGO with respect to three children, H., A. and D. on June 18, 2008. On July 8, 2009 the Applicants applied pursuant to the Family Law Act , S.A. 2003 c. F-4.5 (“FLA”) for guardianship of the children on the basis that a subsequent psychological assessment confirmed that they were in a position to parent the three children.

On June 14, 2010, the application with respect to D. was discontinued and a Partial Discontinuance of Action was filed. [ 5 ] The Applicants have had varying degrees of access to the children since the granting of the PGO depending on where the Applicants or the children have been residing and certain issues that have arisen as a result of the access visits. [ 6 ] This matter initially came before this Court in the context of a Judicial Dispute Resolution (“JDR”) held before Martin J. on September 9, 2010.

As the JDR was not successful, Martin J. directed that an Agreed Statement of Facts be filed, and one was filed on November 10, 2010, signed by counsel for the Applicants, counsel for the Respondent and counsel for the children. Because of privacy concerns, a modified version of the Agreed Statement of Facts is set out below. [ 7 ] A.L.M. is the biological mother of H. and A. and L.J. is their biological father. A.L.M. resides with her common law spouse D.A.I. in a small town in Alberta and L.J. resides in a Métis settlement in Alberta.

The children, 8 year old H. (born March 2002), and 7 year old A. (born March 2003), are in the care of Region 10 Children and Youth Services. [ 8 ] There are two biological children of A.L.M. and D.A.I. namely D. (born July 2006) and S. (born February 2009). D. was also the subject of the PGO but the application with respect to this child has been abandoned and D. has been adopted.

S. remains in the care of A.L.M. and D.A.I. [ 9 ] Subsequent to his separation from A.L.M , L.J. has had two children (born March 2009 and April 2010 ) who are, therefore, siblings of H. and A. [ 10 ] With respect to the children H. and A. the following legal proceedings have taken place: PGO: 2008/06/18 - Current Application for PGO: 2008/03/11 - 2008/06/18 Temporary Guardianship Order: 2007/10/02 - 2008/06/18 Custody Order: 2007/05/01

Interim Custody Order: 2007/04/16 - 2007/05/01 Interim Custody Order: 2007/04/10 - 2007/04/16 Interim Custody Order: 2007/04/04 - 2007/04/10 Application for Custody Order: 2007/04/04 Apprehension Order 2007/03/31 - 2007/04/04 Supervision Order: 2007/03/06 - 2007/03/31 Application for Supervision Order: 2007/02/06 - 2007/03/06 Interim Access Order: 2007/02/06 - 2007/03/06 Custody Agreement with Guardian: 2005/12/06 - 2006/01/03 Temporary Guardian Order: 2005/11/01 - 2005/12/06 Temporary Guardian Order: 2005/10/04 - 2005/11/01 Temporary Guardian Order: 2005/07/05 - 2005/10/04 Temporary Guardian Order: 2005/04/05 - 2005/07/05 Interim Custody Order: 2005/03/17 - 2005/04/05 Application for Custody Order: 2005/03/11 - 2005/03/17 Application for Temporary Guardianship Order: 2005/03/10 - 2005/03/17 Emergency Apprehension: 2005/03/10 [ 11 ] The history of placements with respect to H. and A. are as follows: H.

Permanency Placement 2010/06/26 - Current Foster Care 2008/08/31 - 2010/06/26 Foster Care 2007/03/31 - 2008/08/31 Applicants’ care 2006/01/03 - 2007/03/31 Foster Care 2005/03/17 - 2006/01/03 Agency Foster Home 2005/03/10 - 2005/03/17 A. Permanency Placement 2010/06/26 - Current Foster Care 2010/05/13 - 2010/06/26 Foster Care 2008/08/31 - 2010/05/13 Foster Care 2007/03/31 - 2008/08/31 Applicants’ Care 2006/01/03 - 2007/03/31 Foster Care 2005/03/17 - 2006/01/03 Agency Foster Home 2005/03/10 - 2005/03/17

[ 12 ] Over the years a number of psychological assessments were conducted with respect to A.L.M., D.A.I. and L.J., the most recent with respect to A.L.M. and D.A.I. being completed by Dr. Valerie Massey (“Dr. Massey”) on March 8, 2010. [ 13 ] The relevant historical information is as follows: 1. Child protection concerns for this family dated back to April 24, 2002 in Hamilton, Ontario. Information received from the Children's Aid Society of Hamilton indicated there were issues of domestic violence and concerns regarding A.L.M. and L.J.'s capacity to care for their children. 2.

Shortly after the family arrived in Alberta an incident occurred in which A.L.M. was assaulted by L.J., leading to police involvement. A.L.M. required hospitalization, resulting in an Emergency Apprehension Order for the children granted on March 10, 2005. 3. In March of 2007, the RCMP responded to a call that A.L.M. was threatening suicide, resulting in an Emergency Apprehension of the children. 4.

A.L.M. and D.A.I. underwent a parenting assessment in May of 2007 and the results of the assessment were that A.L.M. and D.A.I. would require "hands on" assistance to ensure the safety, security, and development of their children. 5. A PGO was granted on June 18, 2008. [ 14 ] The chronology of circumstances following the granting of the PGO is as follows: 1. On October 22, 2008 a SAFE Home Study was completed on W.M. and E.M. (A.L.M.'s Grandparents) in which they were denied for Kinship Care of A., H. and D. 2.

In February 2009, access visits were terminated by Region 7 Children and Youth Services in order to pursue permanency planning for the children. 3. A.L.M. gave birth to S. in February 2009 and this child was deemed by Children's Services to be safe to remain in the home with adequate community supports. 4. On April 6, 2009 the files for A. and H. were transferred to Region 10 Children and Youth Services as part of the Finding Your Way Home Project. 5. The involved caseworker and casework supervisor attended the home of A.L.M. and D.A.I. on June 3, 2009. Also present at the home was A.L.M.'s mental health worker.

During this visit A.L.M. presented workers with completion certificates of parenting programs for herself and D.A.I. as well as a recent Parenting Assessment, and expressed to workers that she was working toward having her children returned to her care. 6.

Access resumed on June 18, 2009 and began with supervised visits and subsequently moved to partially supervised visits and then partially supervised overnight visits as Region 10 was allowing A.L.M. and D.A.I. the opportunity to demonstrate that they were able to provide safe and loving care to the children and in an effort to determine whether a return to parental care would be plausible as initial

reports appeared favorable. 7. Despite initial positive reports, subsequent concerns continued to be received regarding A.L.M. and D.A.I.'s ability to meet the children’s needs. 8. A SAFE Home Study for A.L.M. and D.A.I. was completed on February 9, 2010. The Home Study recommended that A.L.M. and D.A.I.

NOT be approved as placement for the children due to a number of concerns, including: · A.L.M. placing the responsibility of S.'s needs on others; · A.L.M.'s unrealistic expectations for her children's growth and development; · the questionable bond the children appear to have with their mother; · concerns regarding A.L.M.'s disciplinary techniques; · A.L.M. denying responsibility for any previous risk resulting in her children coming into care; · concern of an unbalanced relationship between A.L.M. and D.A.I. 10.

It was determined by Region 10 Children and Youth Services that, due to the Home Study results and presenting concerns regarding the parents’ ability to provide long term care and stability, a return to parental care would not be supported by Region 10. At this time access was decreased. 11. Alternative permanency planning continued for H. and A. and they were moved to a permanency placement on June 26, 2010. 12.

Current access has been slowed to one supervised day visit per month as Region 10 Children and Youth Services is proceeding with the current permanency plan of Private Guardianship with the current caregivers. Legislation [ 15 ] The Child, Youth and Family Enhancement Act , R.S.A. 2000 c.

C-12 (“CYFEA”) provides in part: 2 If a child is in need of intervention ... all persons who exercise any authority or make any decision under this Act relating to the child must do so in the best interests of the child ...and must consider the following ... 34(4) If the Court makes a permanent guardianship order, the director is the sole guardian of the person of the child... 35(1) If a child is the subject of a permanent guardianship agreement or order, the director, if the director is satisfied that the child should be returned to the guardianship of the person who was the guardian of the child before the agreement or order was made, may apply to the Court for an order terminating the permanent guardianship agreement or order.

(1.1) If a permanent guardianship agreement or order is terminated pursuant to subsection (1), the person, other than a director, who was the guardian immediately before the permanent guardianship agreement or order was made is the guardian of the child unless the Court orders otherwise. 39 ...the right of a director to the custody of a child when the child is ...the subject of a ...permanent guardianship order ... takes precedence over the rights given by any order not made under this Act respecting custody, access, contact, parenting time or the child's place of residence, whether that order (

a) was granted to a person who is a party to the proceedings under this Act or not, or (

b) was granted before or after (

i) the child came into the custody of a director, (ii) the making of the ... permanent guardianship order... 40(2) A permanent guardianship ... order remains in effect until (

a) the ... order is terminated by a court, (

b) a private guardianship order is made in respect of the child...whichever occurs first. 52(1) Any adult may apply to the Court in the prescribed form for a private guardianship order in respect of a child who is in the custody of a director or is the subject of ... a permanent guardianship ... order.

(1.1) An application under subsection (1) must include a home study report...

(1.2) If the child is the subject of a permanent guardianship ... order, the report required under subsection (1.1) must be prepared by a director.

(1.3) If an applicant has reason to believe that the child is an aboriginal child, the application under subsection (1) must include a cultural connection plan, made in accordance with the regulations, that addresses how the child's connection with aboriginal culture, heritage, spirituality and traditions will be fostered and the child's cultural identity will be preserved.

(2) A director may, on behalf of an applicant, make an application under subsection (1) if (

a) the applicant consents in writing, and (

b) the director is satisfied that it is in the best interests of the child for the child to be placed under the guardianship of the applicant. 55(1) A private guardianship order shall not be made without the consent in the prescribed form of

(

a) the guardian of the child, (

b) the child, if the child is 12 years of age or older, and (

c) a director, if a director is not the guardian of the child.

(2) Notwithstanding subsection (1), the Court may make an order dispensing with the consent of (

a) the guardian of the child, other than the director, (

b) the child, or (

c) a director, unless a director is the guardian of the child, if the Court is satisfied that it is in the best interests of the child to do so. [ 16 ] The Family Law Act , S.A. 2003 c. F-4.5 (“FLA”) provides in part: 17(1) Unless the court directs otherwise, the following persons must, in accordance with the regulations, be served with notice of an application under this Part: (

a) each guardian of the child; ... (

c) in the case of an application for a guardianship order...a director under the Child, Youth and Family Enhancement Act if the child is in ... the custody of a director at any time after the application is commenced... 21(1) A guardian shall exercise the powers, responsibilities and entitlements of guardianship in the best interests of the child. 23(1) The court may, on application by a person who... (

b) is a parent other than a guardian of a child, make an order appointing the person as a guardian of the child. 24(1) A guardianship order shall not be made without the consent of (

a) each guardian of the child, (

b) the child, if the child is 12 years of age or older, and (

c) the proposed guardian.

(2) Despite subsection (1), the court may make an order dispensing with the consent of one or more of the persons referred to in subsection (1)(

a) or (

b) if the court is satisfied that there are good and sufficient reasons for doing so.

25(1) The court may, on application by a guardian or a proposed guardian, make an order terminating the guardianship of a guardian, including the applicant, if there is a guardian in place or about to be appointed and if (

a) the court is satisfied that the guardian whose guardianship is to be terminated consents to the termination, or (

b) for reasons that appear to it to be sufficient, the court considers it necessary or desirable to do so... 26 A person continues to be a guardian of a child until... (

d) the termination of the guardian's guardianship under

section 25. Positions of the Parties [ 17 ] The Applicants submit that the two parenting assessments conducted subsequent to the PGO attest to the fact that with sufficient supports they are capable of parenting the children.

They argue that there has been a sufficient change of circumstances since the issuance of the PGO to permit an application under the FLA , and that the new evidence attesting to the best interests of the children is in alignment with the spirit and intent of both pieces of legislation namely the FLA and the CYFEA. [ 18 ] The Respondent submits that issue estoppel precludes the Applicants from bringing the application for guardianship, as the issue was clearly decided by the issuance of the PGO on the informed consent of the Applicants, and accordingly their application is an abuse of process.

The Respondent further submits that the application is statute barred given the provisions of the CYFEA , both with respect to the issues of consent and the general powers accorded to the Director. In the alternative, the Respondent argues that the application should be dismissed as it is not in the best interests of the children. [ 19 ] Counsel for the children takes the position that it is in the children’s best interests to remain in their permanency placement with their current caregivers.

Analysis Jurisdiction [ 20 ] The doctrines of res judicata and issue estoppel generally have limited if any application with respect to temporary orders in child welfare matters. In Catholic Children's Aid Society of Metropolitan Toronto v. C.M. , 1994 CanLII 83 (SCC) , [1994] 2 S.C.R. 165 it was argued that once a finding had been made in earlier temporary orders that a child was in need of protection, the issue was res judicata and need not be addressed again on an application for permanent wardship and adoption placement.

L'Heureux-Dubé J. for the Court stated at para. 35 that children's needs are continually evolving as they are governed by occurrences in the lives of children and their families which cannot be held still in time. Just as it is important to allow in new evidence in order that the court may have accurate and up-to-date knowledge of the situation at hand, similarly courts must continually evaluate the need for state intervention in order to ensure that the objectives of the child welfare statute were being met. [ 21 ] The situation is otherwise with respect to adoption orders. In A.J.G. v.

Alberta , 2006 ABQB 446 at para. 22 , Slatter J. (as he then was) cited with approval authority for the proposition that an adoption order, like any court order, raises an estoppel by res judicata and is valid until set aside. Adoption entails a very draconian change in rights: s. 72 of the CYFEA .

Under s. 73.1(1), no application to set aside an adoption order can be made after one year from the date of the adoption order except on the ground of fraud, and even then only if it is in the best interests of the adopted child. [ 22 ] Both of these positions can be seen as recognitions of the need to support and preserve the family as the basic unit of society,

and the importance of stable, permanent and nurturing relationships for the child. These principles are expressly identified in s. 2 of the CYFEA as factors to be considered in determining the best interests of the child. [ 23 ] The PGO under the CYFEA is neither a temporary order, nor a final order of adoption. Its effects are draconian in that it renders the Director the sole guardian of a child subject to the PGO: s. 34(4). The statute contemplates the possibility of the child returning to the previous guardians, but only at the initiative of the Director: s. 35.

It otherwise provides the Director with considerable control over the future placement of the children; the Director's consent is required with respect to private guardianship and the court cannot dispense with that consent: s. 55. Of course, the Director is always obliged to exercise its decision making powers in the best interests of the child: s. 2 . [ 24 ] In T.S. v. Alberta (Director of Child Welfare) , 2002 ABCA 46 , Hunt J.A. for the Court commented on the nature of PGOs under the Child Welfare Act , S.A. 1984, c.

C-8.1: 33 Notably, s. 30 also permits the child's guardian to apply to have a TGO reviewed and terminated. There is no similar provision as regards a PGO. While the Director can apply under s. 33 to have a PGO terminated, a parent or guardian's only recourse once a PGO has been granted is to appeal within 30 days under s. 80. This Court recently held that the Court of Queen's Bench has no jurisdiction to extend the time for the filing of an appeal under the Act. J.U. v. Regional Director of Child Welfare (Alta.) (2001), 2001 ABCA 125 (CanLII) , 281 A.R. 396 (C.A.) , leave to appeal to SCC refused [2001] S.C.C.A.

No. 381. Russell J.A. stated at 398 that the appeal provisions of the Act are substantive, not merely procedural, and the parens patriae jurisdiction of the Court of Queen's Bench cannot override express statutory authority. Therefore, once the appeal period for a PGO has expired, the guardian has no means to compel a review of a PGO. [ 25 ] There is no reason to believe that the situation is otherwise under the current CYFEA . In E.I.E. v. Alberta (Child, Youth and Family Enhancement Act, Director) , 2009 ABCA 60 , the appellant sought to have the Court set aside a PGO. The parents had not appealed the order.

Although the appellant argued that she was not present when the permanent guardianship was ordered, she was represented by counsel at the time that order was granted, and the time for the appeal against that order had long since passed. The mother brought a series of applications for review of the order. The Director had argued before the Court of Queen’s Bench that the appeal was barred by s. 35 of the CYFEA. The appellant argued that she could make an application under s. 32 as the child was now over twelve years of age.

In a brief oral decision, Ritter J.A. pointed out that s. 32 only provides for the right of a reconsideration up to the level of a TGO, and that s. 35 provides that only the Director can make an application to set aside or reconsider a PGO.

Therefore, the appellant had no status to bring an application for reconsideration and the Court of Queen’s Bench did not have jurisdiction. [ 26 ] The Applicants note that the FLA provides that the court can dispense with consent of a guardian if "there are good and sufficient reasons for doing so" and may terminate guardianship of a guardian "for reasons that appear to it to be sufficient, the court considers it necessary or desirable to do so": ss. 24(2) , 25(1) . [ 27 ] They rely on Re F.(A.) , 2009 ABCA 25 , in which the Court of Appeal considered the interaction of the CYFEA and the FLA and more particularly whether the CYFEA guardianship provisions formed a complete code regarding children in care and precluded private applications for guardianship of such children under the FLA . [ 28 ] In that case, the grandparents had applied for guardianship prior to the PGO being granted.

The Court pointed out that the practical effect of the position that the CYFEA precludes the FLA guardianship is that only those applicants who meet with the approval of the Director and who have had care of the children in the period leading up to the hearing will ever meet the requirements for private guardianship under the CYFEA. The Court noted that the FLA does not provide that its guardianship provisions do not apply to children in the custody of the Director.

The Court held that s. 39 of the CYFEA, which gives precedence to a PGO over other orders, deals with the right to custody, not private guardianship applications. The Court found that the two applications could have been addressed at the same time. [ 29 ] Paperny J.A. for the Court expressly declined to address s. 34(4) which provides that the Director under a PGO is the sole guardian of the child stating: 22 The Director also points to s. 34(4) of the CYFEA , which provides that, if the court makes a PGO, the Director is the sole guardian of the child.

Given the nature of a PGO, different considerations may arise in a case where a PGO has been granted before a guardianship application under the FLA is filed. I do not need to address that question in this case, as the appellants' application pre-dated the granting

of the PGO. [ 30 ] The Court declined to interpret the statutes in such a way that family members were excluded from being materially involved and considered for guardianship unless the Director agreed. Finally, the Court held that there is no express statement in the legislation ousting the Court's parens patriae jurisdiction. [ 31 ] In N.(N.) v. Alberta (Director of Child Welfare) , 2009 ABQB 224 , Germain J. considered whether a grandmother could apply for guardianship of a child who was the subject of a PGO.

After considering Re F.(A.) and policy arguments on both sides of the issue, he concluded that allowing applications to proceed under the FLA after a PGO has issued was not excluded by the legislation and was in the child's best interests. [ 32 ] Both Re F.(A.) and N.(N.) addressed situations where someone other than the prior guardian was applying for guardianship. In Re F.(A.) , the grandparents had made their guardianship application prior to the PGO being granted.

The Court of Appeal in that case was concerned that the practical effect of precluding the FLA guardianship was that only those applicants who met with the approval of the Director and who had care of the children in the period leading up to the hearing would ever meet the requirements for private guardianship under the CYFEA . The Court rejected an

interpretation whereby family members were excluded from being materially involved and considered for guardianship unless the Director agreed. [ 33 ] Similarly, in N.(N.) , the applicant was a grandmother, this time applying in the face of a PGO. Germain J. followed the reasoning of the Court of Appeal, i.e. the Court should not interpret the legislation so as to effectively preclude family members from applying for guardianship. [ 34 ] In my view, neither Re F.(A.) nor N.(N.) is determinative on the facts before this Court.

Both are distinguishable from the present case in that the applicants were grandparents and not the former guardians. In the present case, the Applicants, who were the previous guardians, are expressly contemplated in s. 35 and could with the consent of the Director apply for guardianship under s. 55.

The Court in that situation cannot dispense with the consent of the Director. [ 35 ] Arguably, extending the conclusions in Re F.(A.) and N.(N.) to the prior guardians would defeat the clear intention of the legislator in the CYFEA which is to allow the Director to control any return of the child to the prior guardian once a PGO is in place. To find otherwise could well result in what would essentially be continuous consecutive appeals of the PGO outside of the time to appeal.

The legislator has conceived of a clear regime which attempts to balance the importance of the child’s ties with the former guardian with the importance of stable, permanent and nurturing relationships for that child. [ 36 ] The Applicants also argue that this Court retains parens patriae jurisdiction to entertain an FLA application by the former guardian because it may be in the best interests of the child to be returned to a rehabilitated parent, even if the Director does not consent.

As the Court of Appeal held in T.S. , the parens patriae jurisdiction of the Court of Queen's Bench cannot override express statutory authority. [ 37 ] From a policy perspective, the Director is bound to make decisions in the best interests of the children and by the time a PGO issues, the Director already has an extensive history with the prior guardian.

The Director can allow access to the former guardian, as it has in this case, and therefore presumably it would be in the best position to assess whether a jump from access to renewed guardianship by the former guardian would be in the best interests of the child. Intervention by this Court after the appeal period would in effect amount to the Court second guessing, possibly much after the fact, the Director's application of the best interest factors in its area of expertise and experience. This would not promote stable, permanent and nurturing relationships for the child.

It is my view that the legislator intended the PGO to be final vis-à-vis the former guardian, subject to the Director being persuaded that s/he has become fit to resume guardianship, and of course subject to appeal within the appeal period. [ 38 ] For the above reasons, I find that in the circumstances of this case this Court does not have jurisdiction to hear this application Merits

[ 39 ] In the event that I am incorrect and this Court does have jurisdiction to hear the matter I have, in the interests of the children, heard the evidence and considered the merits of the FLA application in order to avoid the possibility of extremely protracted legal proceedings, namely a successful appeal on the issue of jurisdiction followed by a trial on the merits and a subsequent appeal on that issue. Evidence of Witnesses [ 40 ] Dr.

Massey prepared separate psychological assessments dated March 8, 2010 with respect to A.L.M. who was tested on January 20 and 21, 2010 and D.A.I. who was tested on January 20, 2010. With the consent of counsel she was qualified to give expert testimony with respect to the ability of the Applicants to function as parents. Dr. Massey was extremely critical of the 2007 assessments and questioned the competency of the author of those reports to arrive at some of the findings made. [ 41 ] In conducting testing with respect to intellectual functioning Dr.

Massey stated in part “...these scores indicate that A.L.M. is not low functioning or cognitively impaired. Instead, she has severe language based learning disabilities that have affected her ability to express herself or process complex concepts presented verbally”. [ 42 ] With respect to academic functioning she stated in part, “... She has severe learning disabilities in all core academic skills. She would have great difficulty with independent reading and her functional literacy and numeracy is poor”.

She noted that A.L.M. was suffering from post traumatic stress disorder (“PTSD”) as a result of her previous relationship with L.J. [ 43 ] Dr. Massey stated in her conclusions that, “A.L.M. is appropriately supported through AISH due to her physical health issues although she does not have a mental handicapping condition as previously reported ...” [ 44 ] Dr. Massey made a number of recommendations for A.L.M., which she reviewed with her, stating in her report: These included continued individual counseling with an emphasis on PTSD and couples counseling to help A.L.M. and D.A.I. deal with their own issues.

Further assistance through AADAC or community-based alcohol treatment was also recommended as there are ongoing stresses within this family related to alcohol use and unhealthy coping strategies. Recommendations for in-home supports and additional counseling if the children were returned to A.L.M.’s care, were made as well. [ 45 ] With respect to D.A.I. , Dr. Massey in the

summary and conclusions part of her report stated in part the following: ... There was considerable variability between subtest scores in the nonverbal domain, consistent with his history of early school leaving, undereducation and longstanding Attention Deficit Hyperactivity Disorder (ADHD) and D.A.I. has serious barriers to competitive employment.

Though he has found work in the past, he is becoming increasingly impoverished and marginalised and due to the combination of seriously underdeveloped academic skills, poor expressive language, and lower cognitive functioning, he would be better supported through AISH. He is still encouraged to seek part-time employment to improve the family’s financial situation and provide him with important social contacts although his barriers will likely prevent him from seeking and sustaining competitive employment opportunities. [ 46 ] Dr.

Massey stated that in her opinion there was a failure by Children’s Services to provide the support the Applicants required prior to the granting of the PGO and that in her view they needed assistance in getting out of what she described as “the poverty trap”. In her opinion, the Applicants have the potential to be appropriate guardians of the children. She opined that if the Applicants are permitted to continue as guardians of the infant S. it is somewhat incongruous to argue that they cannot parent two more children.

She stated however that proper support over a period of nine to twelve months would be required in order for the Applicants to meet that potential. [ 47 ] D.A.I. testified that he helped A.L.M. care for the children before they were removed from the home. He stated that he considered the two children to be his daughters. D.A.I. stated that he consented to the PGO because he felt it was best for the children at the time. He was not able to readily articulate what has changed since that time.

[ 48 ] D.A.I. confirmed that he has a very spotty work record and that he has only performed a few odd jobs for the landlord since February 2009 when S. was born. He believed that if he worked his cheque would be cut by a third since A.L.M. is receiving AISH. He agreed that he and A.L.M. have moved six times since they began living together and three times since the PGO was granted.

He stated that there is more support in the town where they are currently living but that the better plan if they got the children back might be to move to Ontario where members of A.L.M.’s family reside. [ 49 ] D.A.I. stated that A.L.M. does not have a driver’s license and that the vehicle he was driving has been impounded. It had been put in his mother’s name for insurance purposes but the insurance expired and it was impounded after he was stopped for speeding and given a traffic ticket.

He stated that he did not have any money to get it back. [ 50 ] D.A.I. stated that he has not taken couples counseling as recommended by Dr. Massey as it has not been arranged but that he did start a parenting course last month. He acknowledged that he has not applied for AISH as recommended by Dr. Massey, stating in his view it would put a “smear” on his personal record. [ 51 ] D.A.I. confirmed that he has no concerns about the current placement of the children. [ 52 ] A.L.M. testified that she and D.A.I. have a good relationship which is now going on six years.

She stated that she loves her children and wants them to come back home. She denied that they have any special needs. She stated that a person from a group which she referred to as Healthy Families comes into her home once a week to help out with S. and that there is more support available in the town where they are currently living. She currently receives AISH payments of approximately $1,288 per month. [ 53 ] A.L.M. mentioned that she would like other family members to look after the children if they are not returned to her and D.A.I.

She agreed however that a number of proposals had not worked out, and that there would be a lot of uncertainties if she and A.L.M. moved with the children to Ontario.

When asked what has changed since she consented to the PGO she stated that there is more support in the town where they are currently living, that she had joined a church there last month and that she had started a parenting course in September of this year. [ 54 ] A.L.M. confirmed that she has no concerns about the care the children are receiving in their current home. [ 55 ] Amy LaRose is a social worker who prepared a report dated November 8, 2010, a portion of which is contained in the Agreed Statement of Facts. In her four year bachelors degree she focussed on indigenous child studies including aboriginals.

She is a caseworker appointed under the provisions of the CYFEA working for Region 10 Métis Child and Family Services Authority. She personally became involved in case management of this matter in April 2009.

She testified that initially there were concurrent plans, namely Plan A which was consideration of returning the children to the Applicants and Plan B which was a permanent placement of the children leading to perhaps an adoption. [ 56 ] She stated that where there is a PGO, typically Plan B is followed but if there is a change in circumstances Plan A will be explored and that in the instant case a home study was required to determine whether a return of the children to the Applicants would be favourable.

However, she stated that a home study indicated that returning the children to the Applicants would not be in their best interests and that a permanent placement was preferable. [ 57 ] Ms. LaRose stated that she sees the children frequently and that A. indicated that she wanted to live with her mother and was having problems with her sister and for this reason they were put in counselling which is ongoing. She stated further that H. was not as clear about things as her sister and indicated that she would like to live with her current caregivers and with her mother. Ms.

LaRose indicated that while the children’s wishes are taken into consideration, overall the department considers their ages and best interests. [ 58 ] Ms. LaRose testified that the current caregivers, C.W.B and G.W.B, were chosen as it was determined that their home matched the needs of the of the children. She noted that the children live close to the Métis settlement and have connections with it. In other words, the children have cultural needs which are provided by their current caregivers.

[ 59 ] Ms. LaRose confirmed that because of certain problems which developed including inappropriate information being shared with the children by A.L.M. and concerns with respect to an incident where D.A.I was driving without a license, access is now fully supervised once a month for five hours. [ 60 ] Virginia Workman is a social worker currently working as a supervisor in the department of adoptions and permanency planning. She testified that she has done between 41 and 45 home studies over the last five years.

In May 2008 she received a certificate of completion of SAFE Home Study Training and she indicated that approximately 24 of the home studies conducted over the last two years were SAFE Home Studies. With the consent of counsel she was qualified to give expert testimony with respect to conducting a family evaluation and making recommendations concerning permanent placement. [ 61 ] Ms. Workman began conducting the SAFE Home Study in November 2009 and, after several meetings with A.L.M., D.A.I. and others, prepared an extensive report dated February 16, 2010.

She stated her philosophy as being that her general bias is for the family, she tries not to look at the negative, that children belong with family and at times families deserve support. [ 62 ] Ms. Workman stated that during the home study she had concerns which were not mitigated and while she tried to look for strengths in the end she felt the Applicants’ home was not a healthy environment for the children. She testified that she was primarily concerned with the ability of A.L.M. to parent the children.

With respect to D.A.I. she stated the following: D.A.I.’s motivation to have H. and A. returned to their care is based on his desire to have his own biological son D. returned to his care. D.A.I. states that H. and A. “ are good kids, they’re okay but I want to have D. home, he’s my son”. [ 63 ] Ms. Workman testified that home studies can be emotional and intense. She noted that the Applicants have moved to another town since the report was prepared but stated that this fact is not relevant with respect to her recommendation that the Applicants not be approved as guardians.

She stated that on the positive side, neither of the Applicants has a criminal record, there were more than enough groceries in the home, the home was clean, there was some improvement in A.L.M.’s parenting skills and S. was clean. [ 64 ] On the negative side, Ms. Workman testified that while A.L.M. demonstrated some responsibility for S.’s needs, D.A.I. was observed to be the person in the home that met the majority of this child’s emotional needs. She also noted A.L.M. say to H. and A. to “ go play with your sister, go see what your sister needs. D.A.I. take care of S. she’s crying”. [ 65 ] It was Ms.

Workman’s opinion that A.L.M. had unrealistic expectations regarding her children’s development and growth stating in her report: ... when provided with different scenarios A.L.M. is adamant that neither H. or A. would refuse to do any task she asked of them; A.L.M. stated that H. “ would never say No to me because she knows better. ” When asked what that would look like, how H. would know better, A.L.M. stated “ H. would never say no to me, none of my kids would if they know what’s good for them they know better”.

When the writer pointed out that A.L.M.’s statement sounded like a threat, A.L.M. stated, “its not a threat it’s a promise–they know what they are supposed to do and they are not allowed to tell me no!” A.L.M. also indicated that H. and A. “Would never lie to me, they know better and they’re not old enough to lie yet.” When the writer asked what A.L.M. would do if H. or A. lied to her, A.L.M. initially stated that “they wouldn’t do that”. Later A.L.M. indicted, “I would probably ground them or put them in time out if they lied but they would never lie to me.” [ 66 ] It was Ms.

Workman’s opinion that problems with the children would only increase as the children get older and become more independent. She was concerned that on the occasions the children were at the home while conducting the home study, A.L.M. demonstrated favoritism of A. over H. Further, she stated that while for example A.L.M. indicated that she had learned from the parenting courses and she had taken the meaning of “time outs”, she was not necessarily able to transfer theory into practice.

She stated that while she could properly identify what should be done in one situation, “When a different scenario was presented, her response was that of retaliation and punishment vs. discipline.” [ 67 ] Further with respect to the manner in which A.L.M. presented herself throughout the interviews, Ms. Workman stated:

A.L.M. is not open or honest with workers consistently which gives cause for concern regarding the children’s safety. Throughout the assessment process A.L.M. alternated between being obsequious and/or defensive and angry in her presentation. As long as the information A.L.M. presented was not challenged, she was cooperative with the writer however when pressed for additional information and/or suggestions or observations were noted A.L.M. became defensive. [ 68 ] C.W.B. testified that she and her husband G.W.B. have been caring for the two children since June 26, 2010. They have been married for nine years and knew when they married that they could not have children. They live on a quarter

section of land described as a hobby farm where they have horses and raise chickens and sheep. G.W.B. teaches school in a nearby town. He is part aboriginal as are the children and he has introduced them to some aboriginal customs.

The hobby farm is in relatively close proximity to a Métis settlement. [ 69 ] C.W.B. advised that she and her husband intend to apply for private guardianship or adoption of the children, but stated that they were advised when taking them in June of this year that a trial was set for November and that everything would have to be on hold until a final determination of the matter. [ 70 ] C.W.B. stated that they met the girls around the end of April and initially had home visits and sleep overs to get acquainted.

The move was transitioned over a few weeks which C.W.B described as “a honeymoon time” where the girls were on their best behaviour. [ 71 ] She stated that H. had some severe mood swings that did not show up in the first few weeks and some severe temper tantrums. There was also some sibling rivalry between the two girls who had been living with different caregivers and initially H. was not very tolerant of her sister. A. was described as being more reserved and initially had problems making room for C.W.B. as she had established a strong bond with her previous caregiver.

C.W.B. stated that this is now changed and A. is now much more comfortable with her and that both girls now look at the farm as their home. [ 72 ] C.W.B. stated that A.’s diet is a concern and that there has been a very significant struggle getting her to eat healthy food such as vegetables and fruit. She stated that progress is slowly being made and A. will now eat bananas and yogurt but that problems still exist. [ 73 ] C.W.B. advised that H. has had hygiene problems, and that there were one or two bed wetting incidents during the first two weeks she was in their care.

The hygiene problem relates to H. not wiping herself after going to the bathroom and not looking after her hair. She stated that progress is slowly being made with respect to the wiping issue but that at times H. has lapsed and the issue has been discussed with both the teacher and the nurse or wellness person at the school. She stated that the children will receive ongoing assessments in order to ensure that their ongoing needs will be met. [ 74 ] C.W.B. stated that the girls’ physical condition is fine in that their weight and height are average.

Their dental health is all right except for some tartar buildup and A. has some spacing problems with her front teeth which will require orthodontic care. Academically, they are doing well in school although H. is having problems with a girl in her class and been shunned a bit by girls in the class. She stated however that H. has a first cousin in her class and the girls have had cousins over to the hobby farm from the Métis settlement. [ 75 ] C.W.B stated that overall the children are happy and have settled into their present surroundings.

She stated that she is amenable to doing what is in the children’s best interests including keeping the relationship open with the parents and other members of the biological family, if this would be beneficial. Assessment [ 76 ] I am satisfied that the Applicants love the children. I accept the evidence of Dr. Massey that the Applicants may not have been receiving the support they required before and at the time the PGO was granted. This may in part have been due to where they were

living at various times and the support that was available in those communities. [ 77 ] I was impressed with the testimony of Amy LaRose because when she looked for a permanent placement she took into consideration the fact that the W.B,s live near the Metis settlement, Mr. W.B.'s cultural background and the fact that he could introduce the children to their culture. I was also impressed with Ms. Workman who conducted a very thorough and competent home assessment.

I accept her evidence that when conducting such a study she always tries where possible to emphasize the positive rather than the negative but that at the end of the day she simply could not recommend that the children be returned to the home of the Applicants. [ 78 ] C.W.B. gave a very frank and candid overview of the current situation and the problems the children have encountered while in her and her husband’s care. Where she has identified problems with respect to hygiene or nutrition, which if ignored could prove to be serious, she has worked with the girls to help them develop healthier lifestyles.

She appears to be on top of their educational, physical and social needs. [ 79 ] I am mindful that Dr. Massey who at times appeared to be more of an advocate for the Applicants than an expert, advised that with proper support it will take nine months to a year for the Applicants to meet their potential to be guardians of the children. While put in the most positive light this may be true, it is in my view by the same token speculative, as it is equally possible that they may never achieve that potential. [ 80 ] This Court must be guided by the best interests of the children.

I find that it is not in the best interests of the children at this point to speculate that the Applicants may at some future point in time, with considerable assistance, be in a position to meet the children’s basic needs. The Respondent in my view has done a credible job in evaluating the situation and has reasonably decided to continue to oppose the application. On a thorough review of all of the evidence, I find that it is in the best interests of the children to continue in the care of C.W.B. and G.W.B. Conclusion [ 81 ] I find that: 1.

This Court does not have jurisdiction in the circumstances of this case to hear the application; 2. In the event I am wrong and the Court does have jurisdiction to hear the application on the merits, the application is dismissed as it is not in the best interests of the children for them to be returned to the guardianship of the Applicants. Heard on the 11 th and 12 th day of November, 2010. Dated at the City of Edmonton, Alberta this 9 th day of December, 2010. Gerald A. Verville J.C.Q.B.A.

Appearances: Darlene M. St. Jean for the Applicants Pierre V. Lamoureux for the Respondent William B. Hogle, Q.C. for the Children