D.J.B. Appellant - v. -, 2011 ABQB 134

Court of Queen ’ s Bench of Alberta Citation: D.J.B. v. Alberta ( Child, Youth and Family Enhancement Act , Director), 2011 ABQB 134 Date: 20110307 Docket: FL01 11207 Registry: Calgary In the Matter of J.D., born June 26, 2004, a Child within the meaning of the Child, Youth and Family Enhancement Act , R.S.A. 2000, c. C-12 as amended. Between: D.J.B. Appellant - and - Director of Child and Family Services and T.A.D.

Respondents Restriction on Publication: No one may publish any information serving to identify a child or guardian of a child who has come to a Minister’s or a director’s attention under the Child, Youth and Family Enhancement Act . See the Child, Youth and Family Enhancement Act , s. 126.2 . Corrected judgment: A corrigendum was issued on May 13, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice A.B. Sulatycky

_______________________________________________________ Appeal from the Judgment by The Honourable Judge L.T.L. Cook-Stanhope Dated the 8 th day of October, 2010 Introduction [ 1 ] This is an appeal from the decision of Cook-Stanhope PCJ delivered by way of written reasons dated October 8, 2010: Alberta ( Child Youth and Family Enhancement Act , Director) v. T.A.D. , 2010 ABPC 304 . In her decision, Judge Cook-Stanhope held that the Appellant did not have standing by reason of res judicata .

As a result, of the Appellant’s lack of standing and consent by the mother, the Court ordered a Permanent Guardianship Order (“PGO”) in connection with the child J.D. Background and Decisions Below [ 2 ] The Appellant is the father of the child J.D., born on June 26, 2004. The Respondent, T.A.D., is the mother of J.D. [ 3 ] In 2008, the Director designated under the Child, Youth and Family Enhancement Act , R.S.A. 2000, c.

C-12 (“ CYFEA ”) (the “Director”) brought an application for a PGO with respect to J.D. and his two siblings, who are all children of T.A.D. (The “Mother”). [ 4 ] The Mother opposed the Director’s application for the PGO in respect of all three of her children. The Appellant, who is not the father of the Mother’s other two children, opposed the PGO with respect to J.D. only.

Prior to the PGO, the Appellant and the Mother had guardianship of J.D. [ 5 ] On November 20, 2008, following a nine day trial, Leveque PCJ granted a PGO under the CYFEA , on all three children, which vested the children’s guardianship with the Director. [ 6 ] The Mother appealed the PGO to the Court of Queen’s Bench. The Appellant failed to file his Notice of Appeal in time and his subsequent application to extend the time for filing his appeal was dismissed by Macleod J. on June 3, 2009. The Appellant did not appeal the decision of Macleod J. [ 7 ] The Mother’s appeal was heard by Martin J. on June 26, 2009.

Martin J. allowed the appeal and returned the matter to Provincial Court for a rehearing. In her reasons for judgment she found that the lower court judge failed to determine the applicability of s. 2 (

f) of the CYFEA ; specifically, whether the existence of domestic violence perpetrated by the Appellant on the Mother necessitated that intervention services be provided to the Mother and children as opposed to the removal of guardianship by a PGO. [ 8 ] On July 21, 2010 the matter returned to the Provincial Court for rehearing where the Mother consented to the Director’s application for a PGO. However, at this time the Appellant took the position that, notwithstanding the Mother’s decision to consent, he was entitled to have the hearing proceed as it related to his rights with respect to the child J.D.

The Appellant argued that the effect of Martin J. granting the Mother’s appeal was to extinguish the PGO in respect of both the Mother as well as the Appellant. [ 9 ] Cook-Stanhope PCJ held Martin J.’s order only extinguished the PGO with respect to the Mother and not the Appellant. Additionally she found that the Appellant had no capacity to further contest the PGO as his guardianship had been terminated by the Provincial Court on November 20, 2008 and was not revived by the Mother’s appeal. Furthermore, the Appellant’s guardianship of J.D.

was fully litigated, determined and had never been overturned, and therefore his status was res judicata. Issue on Appeal [10] Whether the guardianship rights of a former guardian who does not appeal a PGO are restored by a successful appeal of thatOrder such that the party not appealing may participate and oppose the matter when it is sent back for re-hearing? Standard of Review [11] This appeal involves a pure question of law and therefore the applicable standard of review is correctness: Housen v.Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235 at 237; T.(M.) v.

Alberta (Director of Child Welfare), 2005 ABCA 125 at para.25. The Parties’ Positions a. The Appellant [12] The Appellant argues that Cook-Stanhope PCJ erred in law in her determination that the order of Martin J. terminated thePGO only with respect to the Mother. Furthermore, the Appellant also contends that the court also erred in finding that the Appellant’sstatus is res judicata and declined to grant the Appellant standing in the Provincial Court hearing on this basis. [13] At the hearing of this appeal, the Appellant agreed that Martin J.’s Order was capable of multiple

interpretations. Oneinterpretation, is that Martin J. sent the matter back for a rehearing on a narrow issue involving s. 2(

f) of the CYFEA involving theMothers rights. A second

interpretation, which the Appellant contends is the preferred

interpretation, is that Martin J.’s decisionterminated the PGO in its entirety in connection with all former guardians. [14] The Appellant argues that the PGO was revoked in its entirety because the central aspect of the PGO is the legal status of thechild which is not divisible. Additionally, it does not make sense to speak of the child being the subject of a PGO with respect to only oneguardian but not others, because either the child has the legal status of being subject to the PGO or not.

The Appellant further argues thatit is impermissible for the PGO to be revoked with respect to only the Mother, because if the PGO was still in place with respect of theAppellant, this would result in the child having two legal guardians, the state and the mother. [15] Moreover, the Appellant contends that due to the revocation of the PGO the status quo was restored such that his guardianshiprights are reinstated and the Director must once again satisfy the grounds set out in s. 34(1) of the CYFEA for the Court to grant anotherPGO. [16] Furthermore, the Appellant claims that the doctrine of res judicata is not applicable because the PGO characterizes the legalstatus of the child and only secondarily involves the parent’s rights. b.

The Director of Child and Family Services [17] The Director argues that the decision of Cook-Stanhope PCJ to deny the Appellant standing was correct and should not beoverturned on appeal. [18] The Director contends that the doctrine of issue estoppel prevents the Appellant from participating in guardianship

proceedings of J.D. occurring after June 3, 2010 when Macleod J. refused to extend the time to allow the Appellant to file his Notice of Appeal. After June 3, 2010, the only recourse remaining to the Appellant was to appeal Macleod J’s Order, which he did not. The Director argues that the three part test for issue estoppel as set out by the Supreme Court of Canada in Danyluk v.

Ainsworth Technologies Inc. , 2001 SCC 44 , [2001] 2 S.C.R. 460 at para. 25 has been met as: (1) the same question has been decided, (2) the decision of Justice Macleod was final and (3) the parties to the judicial decision or their privies were the same persons as parties to the proceedings in which the estoppel is raised.

It is the Director’s position that the individual rights of the parents of the child have been determined and that issue estoppel provides the much needed finality to these decisions. [ 19 ] Moreover, the Director maintains that the original PGO, granted by Leveque PCJ on November 20 th 2008, was not revoked by the order of Martin J. The Director contends that although a court may terminate a PGO under s. 40(2) (

a) of the CYFEA , such a termination must be express where it is the outcome of an appeal. Martin J. did not specifically terminate the PGO when ordering that the PGO be redressed in Provincial Court; therefore, the PGO remained in force pending the rehearing. [ 20 ] In any event, even if the Order of Martin J. resulted in the termination of the PGO, the Director argues that guardianship was only restored with respect to the Mother and not the Appellant.

Although PGO’s are not ordered specifically against one parent, guardians are considered separately during the analysis of whether to order a PGO; therefore, a successful appeal by the Mother does not impact the Appellant’s position. c. The Mother - T.A.D. [ 21 ] The Mother claims that the Appellant does not have standing to litigate his guardianship rights because such has been previously litigated and fully determined and issue estoppel prevents reconsideration by the court.

Additionally, the mother argues that her successful appeal cannot resurrect the Appellant’s rights because parental guardianship rights are divisible. [ 22 ] The Mother argues that an appeal by one party cannot benefit another former guardian who was not a party to the appeal regardless of the fact that PGO’s are not parent specific. The rights of guardians are considered separately in PGO applications with consideration being given to each individual guardian.

The Mother maintains that the individual consideration of guardians is supported by s. 34(1) of the CYFEA , on granting PGO’s where guardian is referred to in the singular. In addition to the CYFEA treating guardianship rights as divisible, parental guardianship rights are treated as divisible under the Family Law Act , S.A. 2003, c.

F-4.5. [ 23 ] Furthermore, the Mother argues that it would be unfair to allow a litigant to have greater rights simply because he had the arbitrary benefit of having a co-guardian who was successful on appeal, an appeal which they neither contributed to nor had standing to participate in. Moreover, it is not permissible for a party with a co-guardian to have greater rights than a single parent. [ 24 ] As a result, the Mother maintains that her success in the appeal to Martin J. cannot benefit the Appellant who was not a party to the appeal.

She further argued that this is strengthened as the appeal at bar was granted on the basis of domestic violence perpetrated by the Appellant on the successful party on appeal. d. Counsel for the Child [ 25 ] Counsel for the child provided a brief stating that he agreed with the arguments in the Brief of the Respondent, Director of Child and Family Services. Legal Analysis a. Issue Estoppel [ 26 ] The doctrine of res judicata prevents the litigation of “something that has clearly been decided”: R. v. Duhamel , 1984 CanLII

[26] The doctrine of res judicata prevents the litigation of “something that has clearly been decided”: R. v. Duhamel, (SCC), [1984] 2 S.C.R. 555 at 208. Res judicata exists in two forms: cause of action estoppel and issue estoppel. Cause of actionestoppel prevents a party to previous litigation from reasserting the same cause of action, whereas issue estoppel prevents the litigation ofan issue that has already been determined by the court, regardless of whether the issue is introduced in a different cause of action:Donald J.

Lange, The Doctrine of Res Judicata in Canada, 3d ed. (Markham: LexisNexis, 2010) at 34. [27] The Respondents argue that issue estoppel applies such that the Appellant is estopped from litigating the issue of hisguardianship with respect to J.D. in the Provincial Court rehearing resulting from the successful appeal of the PGO by the Mother. [28] Justice Verville recently summarized the law on issue estoppel in guardianship orders in A.L.M. v.

Alberta (Director ofChildren’s Services Region 10), 2010 ABQB 791 at paras. 20-23, 37: [20] The doctrines of res judicata and issue estoppel generally have limited if any application with respect to temporary orders inchild welfare matters. In Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), (SCC), [1994] 2 S.C.R. 165(S.C.C.) it was argued that once a finding had been made in earlier temporary orders that a child was in need of protection, the issue wasres judicata and need not be addressed again on an application for permanent wardship and adoption placement.

L'Heureux-Dubé J. forthe Court stated at para. 35 that children's needs are continually evolving as they are governed by occurrences in the lives of children andtheir 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 accurateand up-to-date knowledge of the situation at hand, similarly courts must continually evaluate the need for state intervention in order toensure that the objectives of the child welfare statute were being met. [21] The situation is otherwise with respect to adoption orders. In G. (A.J.) v.

Alberta, 2006 ABQB 446 (Alta. Q.B.) 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 estoppelby 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), noapplication 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, andthe importance of stable, permanent and nurturing relationships for the child.

These principles are expressly identified in s. 2 of theCYFEA 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 rendersthe Director the sole guardian of a child subject to the PGO: s. 34(4). The statute contemplates the possibility of the child returning to theprevious guardians, but only at the initiative of the Director: s. 35.

It otherwise provides the Director with considerable control over thefuture placement of the children; the Director's consent is required with respect to private guardianship and the court cannot dispensewith 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. ........ [37] From a policy perspective, the Director is bound to make decisions in the best interests of the children and by the time a PGOissues, the Director already has an extensive history with the prior guardian.

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

It is my view that thelegislator intended the PGO to be final vis-à-vis the former guardian, subject to the Director being persuaded that s/he has become fit toresume guardianship, and of course subject to appeal within the appeal period. [emphasis added] [29] Due to the legislative intent that a PGO be final with respect to former guardians, with the limited exceptions of an appealwithin the appeal period, former guardians who meet the three criteria for issue estoppel set out in Danyluk are estopped from bringingfurther litigation on the PGO.

[30] The Supreme Court of Canada in Danyluk at para. 25 reaffirmed the three criteria for issue estoppel, that had been previouslyset out by Dickson J. speaking for the majority of the Court in Angle v.

M.N.R., (SCC), [1975] 2 S.C.R. 248 at 249: (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that theparties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised ortheir privies. [31] I find that the three criteria for issue estoppel have been met as: (1) the Appellant’s guardianship status has already beendecided and leave to extend time to appeal was not granted (2) the decision of Macleod J. was final and has not been appealed from, and(3) the Appellant and the Director were parties to the original PGO application as well as the application before Macleod J., and are thesame parties in the current application.

Therefore, the issue of guardianship with respect to the Appellant has already been determinedand not taken to appeal, therefore the Appellant is estopped from litigating the issue further. b. Are guardianship rights under the PGO divisible? [32] The Appellant argues that the doctrine of issue estoppel is not applicable because a PGO characterizes the status of the childwhich is indivisible and therefore all former guardians must benefit from a successful appeal by one guardian. [33] The effect of an appeal on a party who was not a party to the appeal was described by Williams A. Stevenson & Jean E.

Cotein Civil Procedure Encyclopaedia (Edmonton: Juriliber, 2003) at 76-43: Usually only those who appeal can get the benefit of an appeal. An appeal only benefits or binds those parties who appealed or wereappealed against, and res judicata binds other parties to the original judgment, unless the result is indivisible and executing bothdecisions is impossible. ... [citations omitted] [34] In International Pediatric Products ltd. v.

Lambert (1968), (BC CA), 67 D.L.R. (2d) 549 at 553 (BCCA) theCourt held that joint and several liability was indivisible, such that a party who was not a party to an appeal would obtain the benefit of asuccessful appeal. Although whether a child is subject to a PGO is not divisible, the guardianship rights of former guardians that underliea PGO are not akin to joint and several liability and are divisible.

Courts routinely treat guardianship as divisible under the Family LawAct, and I have not been presented with a sufficient reason that this is not the case under the CYFEA. [35] Therefore, if the Order of Martin J. had the effect of revoking the PGO, guardianship was only restored with respect to theMother and not the Appellant. Even though once the Mother had her guardianship restored the PGO would not remain in place withrespect to the Appellant, the Appellant would not reacquire his guardianship rights by virtue of the success of the Mother.

Conclusion [36] For the above reasons, Cook-Stanhope PCJ was correct in her decision that the Appellant did not have standing before theCourt. As I have found that the Appellant would not have standing due to the application of issue estoppel regardless of whether the PGOwas revoked or not, I need not speculate on what effect the Order of Martin J. returning the issue to the Provincial Court had on the PGO. [37] Accordingly, the appeal is dismissed. Heard on the 15th day of February, 2011.

Dated at the City of Calgary, Alberta this 6 th day of March, 2011. A.B. Sulatycky J.C.Q.B.A. Appearances: Mr. Fraser Gordon for the Appellant Ms. Lynsey Mincher for the Respondent, Director of Child and Family Services Mr. A. Paul Allyjan for the Respondent, T.A.D. Mr. Rupesh Joshi for the Child J.D. _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice A.B. Sulatycky _______________________________________________________ The line reading “ Dated at the City of Calgary” on page 8 has been corrected to show the signing date as the 6th day of March, 2011.