B.K. v. Alberta (Child and Family Services), 2012 ABQB 329

Court of Queen ’ s Bench of Alberta Citation: B.K. v. Alberta (Child and Family Services), 2012 ABQB 329 Date: 20120518 Docket: FL04 01277 Registry: Grande Prairie Between: B.K. Appellant - and - Alberta (Child and Family Services) Respondent 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.

Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision of the

Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [1] The mother of a child who is under temporary guardianship appeals the provincial court decision allowing the Director toproceed with a permanent guardianship hearing. The mother contends, and the lawyer for the child agrees, that, because s. 32 of theChild, Youth and Family Enhancement Act states that the Director “may apply to the Court in the prescribed form for an order renewing,varying or terminating the original order or for a new order under

section . . . 34" and because the box marked on the form providedrequires a review, the Director must first review the original temporary guardianship order and cannot proceed direct to a permanentguardianship hearing. [2] The only difference in position between the mother and the child is that, whereas the mother asks for the immediate return ofthe child, the lawyer for the child asks the court to merely declare that the Director cannot proceed to a permanent guardianship order.The effect of such an order would be to have the temporary guardianship order collapse, since the extension of that order was dependenton the future permanent guardianship hearing.

However, instead of ordering the Director to immediately return the child, the lawyer forthe child asks the court to make no such explicit order, allowing the Director to apprehend the child from its own care so that the childdoes not have to be returned to the mother. [3] The appeal is denied and the decision of Watson Prov. Ct. J. is affirmed: the Director is entitled to go straight to a permanentguardianship hearing.

Where a statute clearly gives to the Director the right to choose to apply for a new form of order, that clearlegislative intention must be supported over the wording of a form which is merely an administrative attempt to interpret the legislativeintention. [4] Moreover, in the circumstances here, the mother was not deprived of any substantive procedural rights: on the contrary, shewas told explicitly why the Director has chosen not to review the temporary guardianship order and to proceed instead to request apermanent guardianship order.

The mother has the opportunity, while the temporary guardianship order is in effect, to ask for atermination or variation of the order. She has not done so. She will now have a full opportunity of opposing the granting of a permanentguardianship order. The court’s obligation to protect the best interests of the child is not lessened in any way by the decision to gostraight to a permanent guardianship hearing.

Cases and authority cited [5] By the mother: New Brunswick (Minister of Health and Community Services) v G.(J.) (SCC), [1999] 3S.C.R. 46; T.S. v Alberta (Director of Child Welfare) 2002 ABCA 46. [6] By the child: J.U. v Regional Director of Child Welfare 2001 ABCA 125; T.S. v Alberta (Director of Child Welfare) 2002ABCA 46; Alberta (Child, Youth and Family Enhancement Act, Director) v G.D. 2011 ABPC 4. [7] By the court: Sullivan, Sullivan on the Construction of Statutes, 5th ed., LexisNexis, 2008;

Interpretation Act, c. I-8, R.S.A.2000 Appendix A: Notice to mother of permanent guardianship application Appendix B: Reasons for decision in the Provincial Court Appendix C: Extracts from the Child, Youth and Family Enhancement Act

1. Background

a) Factual, procedural, order appealed from [ 8 ] B.K., a child younger than 6 years of age, was apprehended by the Director and made the subject of a temporary guardianship order set to expire on October 4, 2011. That order was not appealed. No impropriety of any sort is alleged in relation to the apprehension or the subsequent temporary guardianship proceedings. [ 9 ] Prior to the expiry of the tgo, the Director made application for permanent guardianship of B.K. A copy of the notice to the mother of the permanent guardianship application is attached as Appendix A. No explanation is provided by the Director about why the box relating to sections 21 and 34 rather than the box relating to

section 18 was ticked by the Director ’ s staff; however, a clue to that choice is perhaps found in the marginal note to s. 21 which states “ Court order after apprehension ” . So far as I am aware, no form has been developed specifically for use with respect to s. 32 of the Act, i.e. outlining the choice between varying or terminating an existing order and applying for a new order. [ 10 ] October 4, 2011 was set for the hearing of the application for a permanent guardianship order. Adjournments of that date were required for a number of reasons. Eventually, a hearing date of December 20, 2011 was arranged.

At that hearing, the mother and the lawyer for the child objected to court ’ s jurisdiction to hear the application. The court ’ s decision is reproduced at Appendix B. An extension to the tgo was obtained pursuant to s. 32; that extension remains in place. [ 11 ] Although the child does not have standing on an appeal of this type, it was agreed in the Provincial Court that the lawyer for the child would be entitled to file a brief and make representations at the appeal as a friend of the court.

b) Legislative [ 12 ] The pertinent extracts from the Child, Youth and Family Enhancement Act are set out in Appendix C. 2. What process must the Director follow to apply for a new permanent guardianship order with respect to a child who was previously apprehended and made the subject of a temporary guardianship order that was not appealed?

a) General principles [ 13 ] When a court must address the issue of whether the process in a situation was legal and equitable, it must begin by attempting to discern the intention of the legislator. To that end, the court recognizes the “ complex, multi-dimensional ” character of statutory

interpretation. As Ruth Sullivan reminds us in her authoritative text, Driedger ’ s modern principle of statutory

interpretation is: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of [the legislator]. [ 14 ] That analysis begins, of course, with a careful reading of the legislation itself. Canadian jurisprudence has developed some guidelines to assist courts in that analysis.

i) Effect of marginal note

[ 15 ] The marginal note to s. 32 refers to “ review of temporary guardianship order ” although the body of s. 32 clearly refers to alternative mechanisms which the Director may choose - the review, modification, termination route on the one hand, or, the application for a new order on the other. [ 16 ] The most recent pronouncement from the Supreme Court of Canada on marginal notes may be that of Justice LeBel, quoted at p. 399 of Ruth Sullivan ’ s authoritative text.

With respect, the situation here is exactly one of the situations referred to by LeBel J.; I am loathe to rely on the marginal note for any purpose here, especially as it is contrary to the clear wording of the section. ii) Effect of use of term, “ prescribed form ” [ 17 ] The Sullivan text has a useful outline of the approach that should be taken to the use of forms in legislation. [ 18 ] We can begin that analysis by referring to s. 26(1) of Alberta ’ s

Interpretation Act which reads: Use of forms and words 26(1) When a form is prescribed by or under an enactment, deviations from it not affecting the substance and not calculated to mislead do not invalidate the form used. [ 19 ] Sullivan ’ s comments on forms are summarized as follows: Regardless of whether they are legally binding, forms may be looked at to help interpret provisions in the body of the Act. It is sometimes suggested that forms may be consulted only if the Act is ambiguous. For several reasons, this requirement should be regarded as obsolete.

b) Application of the general principles to the facts here [ 20 ] We begin the application of the general principle to the situation here by noting that s. 32 of the Act gives to the Director the explicit power to choose one of two routes of dealing with the ongoing treatment of a child who was apprehended and placed under a temporary guardianship order and where that order was not appealed. One route is to vary or terminate the Tgo; the other is to apply for a permanent guardianship order. [ 21 ] The object of the Act is set out in s. 2.

This detailed, sensitive, objective recognizes the importance of family to society, of family to a child, of the need to provide support to some families so that they can better nurture the children within them, and also the importance, for the welfare of a child, to remove the child from the family as a last resort where the child ’ s development is imperilled. [ 22 ] The Act also reflects the notion that young children need to be stabilized as quickly as reasonably and fairly possible; that can be seen, for example, in the shorter time periods during which younger children can remain within the care of the Director. [ 23 ] Looked at comprehensively, therefore, there is nothing in the statute which suggests that the literal meaning of s. 32 of the Act, which is that the Director can choose to apply for a permanent guardianship order when the legislative preconditions are met, is not the correct meaning of the statute.

[ 24 ] Also, s. 21 does not, literally, apply here. This child was not, at the time the Director made its application for apgo, apprehended; the child had been apprehended approximately 6 months earlier and, at the time of apprehension, the appropriate procedure relating to apprehension had been complied with. [ 25 ] This is a situation where the marginal notes should be given no weight with respect to the determination of the intention of the legislator.

To the extent that the marginal note for s. 32 conflicts with the clear wording of the statute, for the reasons set out in Sullivan ’ s text, the wording of the statute itself must prevail. [ 26 ] It is true, of course, that the marginal notes are probably, as at least one decision has observed, the most read portions of a statute, even though they have the least to do with the

interpretation of a statute. However, here, we see from reading the marginal notes why someone from the Director felt that they must tick the box on the form provided that refers to ss. 21 and 34; the marginal note to s. 21 states that it applies to a court application after apprehension.

The individual involved might well have thought that a reference to s. 21 would be more transparent on the application, since that reference would reinforce the notion that this was not a direct application for a permanent guardianship order, as could be possible under s. 18, but was an application that was brought during the course of a temporary guardianship order. [ 27 ] In other words, the Director ’ s form of application was scrupulous in attempting to be as clear as possible about the route which they chose: not the s. 18 route, but the route provided in s. 32.

Unfortunately, it appears that there is no form which has been developed for use with s. 32 and which sets out the choices that are available under that section. [ 28 ] As to the reference to a “ prescribed form ” , the

Interpretation Act reminds us that forms are there to assist in the working out of the legislator ’ s intention, and that deviations from the form that do not affect the substance should be ignored. [ 29 ] Here, the ticking of the ss. 21 and 34 box might have been incorrect; a more correct use of the form might have been a sole reference to s. 18, as that would presumably draw in a reference to s. 34.

However, the objective of the Act has in no way been undermined by this administrative act; on the contrary, this choice on the form provides, if anything, more information to the family about what the Director is doing. [ 30 ] As to procedural equity, it is clear that the mother has not lost any of the substantive procedural rights given to her under the Act. She was, and is, entitled to make an application under s. 32. She has been provided with explicit information about the basis for the Director ’ s application for thepgo and she will have a full opportunity to defend her position at thepgo hearing.

The court has the obligations set out in ss. 18 and 34, as interpreted in light of s. 2; those obligations are not any less than the obligations that would have been imposed had the court reviewed the Tgo and then started the process of considering whether apgo should be granted afresh.

On the contrary, the obligations to the child, as mandated by the Act itself, require the court to move as promptly as fairness allows to place the child in an environment that will be conducive to the child ’ s reaching her potential. [ 31 ] For these reasons, the decision of the provincial court judge to the effect that the Director is entitled to continue with itspgo application is confirmed. Heard on the 16 th day of May, 2012. Dated at the City of Grande Prairie, Alberta this 18 th day of May, 2012.

J.B. Veit J.C.Q.B.A. Appearances: Jennifer F. Villebrun, Villebrun Law Office for the Appellant Mother Adam Henwood, Henwood Law for the Child Monica Robinson, Mann & Robinson for the Respondent Director Appendix A

Appendix B Extract from the decision of the Provincial Court on December 20, 2011 There was a temporary guardianship order in effect which expired at the beginning of

October. Prior to the expiry, Sir, the worker filed a request for a permanent guardianship order and we've been proceeding with respect to that application since the October date with the -- the Tgo simply being extended. THE COURT: Right. MS. ROBINSON: Mr. Henwood has some concern with the way that -- that that application was filed. I'll ⋅⋅ I can try to summarize his position and then -- MR. HENWOOD: Well, I can do that myself. MS. ROBINSON: Sure. MR. HENWOOD: Yeah. MS. ROBINSON: Go ahead then. Submissions by Mr. Henwood MR.

HENWOOD: Sir, this is an issue that I think that the Court has lost jurisdiction over and I would ask that the Court dismiss the application. The issue is this. A temporary guardianship order was granted April the 19th for a period of approximately 6 months, up until October the 4th, 2011. Prior to that Tgo expiring, the Director filed an application - and it should be on the court file - pursuant to sections 21 and 34 of the Child, Youth and Family Enhancement Act .

The application is called, "Notice and Application for a Permanent Guardianship Order and Access Order." The normal course of events would normally have the Director file a review application pursuant to

section 32 of the legislation, but they did not do that; they filed the application pursuant to

section 21, which is the initial custody

section following apprehension, and

section 34, which is a -- the permanent guardianship section. My submission is that the Director has lost jurisdiction by not filing under

section 32. It's very clear in

section 32, Sir - I don't know if you have a copy of the legislation in -- THE COURT: I am sorry, I do not, but carry on.

MR. HENWOOD: Okay.

Section 32 says: If a child is the subject of a supervision order or a temporary guardianship order and the appeal period with respect to the order has expired (

a) a director, at any time during the term of the order, ... may apply to the Court in the prescribed form for an order renewing, varying or terminating the original order or for a new order under

section 28, 31 or 34. So, in my respectful submission, the Court -- the Director did not file the application pursuant to that

section because it wasn't done in the prescribed form and the Court then is not able to adjourn the matter under

section 32, that it normally does on review applications, because that only applies to the

section 32. The Director applies under

section 21, which is supposed to be done sort of immediately after apprehension, and is supposed to be combined with an initial custody application, which also wasn't done in this instance. So I've raised this issue with my friend. I'm not suggesting in any way that the child should be returned to the guardian at this time, based on the disclosure and the evidence that's before me and perhaps the Court, but my suggestion is that the Court has lost jurisdiction and therefore the only remedy that is available to the Director is to make an application for an apprehension order under

section 19. And then if that -- if the Director believes that the child is in need of intervention services they can make that application. If granted, then the Director can then file an application under

section 21 and

section 34, if that's the application that they are seeking. The legislation under

section 32 is very clear and it says "prescribed form" and they haven't filed the prescribed form for that application. And the prescribed forms are found in the regulations. My concern is -- and I would support the Director's application for an apprehension order. My concern is that if the Director is allowed to proceed on this application then that sort of sets up a precedent that the Director can simply file an application, even though it's the

incorrect application, and then come to court and maybe seek to amend it or proceed on that basis without having filed the correct application. I'm -- I'm concerned that that's going to set a precedent. I don't have the case in front of me. but there was a case -- a couple of cases, I think, a number of years ago where the Director had failed to file concurrent plans - I don't know if you remember, Sir - pursuant to the legislation in the -- in the time allotted.

And what happened in -- in those type of cases was that the Director had lost jurisdiction and simply applied to re-apprehend the child, which was granted in many cases. So I think that's analogous to this sort of situation. I'll -- I think that the mother, who is represented by Ms. Villebrun, supports my

interpretation of the legislation - - MS. REIMAN: That is correct, Sir. MR. HENWOOD: -- but I'll let my friend Ms. Robinson speak to her position as well. THE COURT: Thank you. MR. HENWOOD: Okay. And I have the legislation here if you'd like to -- THE COURT: Thank you. I will probably look at it. Submissions by Ms. Robinson MS. ROBINSON: Sir, in discussing this matter with Family Law in Edmonton, the position that - - as it was explained to me, is that the -- the specific wording of

section 33 indicates that the Director, in this case, may apply to the court in the prescribed form for an order renewing, varying or terminating the original order; that has not been done, that's not what is being sought. Or for a new order under

section 28, which would be a supervision order,

section 31, a tgo, or 34, apgo. They've filed for 25 a new order for a permanent guardianship order pursuant to

section 34.

What it boils down to is that the prescribed forms, you're ticking off a box, right, so the PGO, when you're -- you're ticking it off, indicates that you're either going under

section 18 or you're going under

section 21 and 34. There is no option to simply go under

section 34. So the way that the Director sees it is, really it's - - it boils down to whether or not the fact that the forms are incorrect makes this a nullity. And that may be what your position is.

Section 21 clearly does not apply; this child was not apprehended, this child was already in the care of the Director.

Section 21 only takes place - - only becomes a usable

section following an apprehension. Again, there was no apprehension and

section 21 does not apply at all. So, at the end of the day, that is what the Director's position boils down to. And I can advise that at this point the Director has not taken any steps to appre -- to re-apprehend -- THE COURT: Right. MS. ROBINSON: -- because, again, it's -- it's the Director's view that there are orders in place. And again, we would be seeking -- THE COURT: What -- you know, I am looking at it in terms of, you know, sort of re-apprehend and-- MS. ROBINSON: M-hm.

THE COURT: -- it is just paperwork, it is not going to change anything on the status of where the parties are, or anything, even with the consent, as your friend as indicated. MS. ROBINSON: Right. It -- it -- essentially it starts things over -- THE COURT: Yes. MS. ROBINSON: -- so we'd have to re-apprehend, make that application, serve the documents on all of the parties, which I don't know if counsel is prepared to accept service. I, frankly, have no idea how I would find the mother at this

point. But, at any rate, the -- we're back, essentially, at step 1, and then we would need to have the initial custody hearing within the 42 days, and then we're back to -- to the pre-trial. THE COURT: Yes. MS. ROBINSON: But, in any event, that has not been done, Sir. The Director's position is that there are -- are orders in place and we would be looking for a direction from the Court. I don't believe I have the ability to simply say that this order is no longer valid. Unfortunately, they haven't promoted me to the Bench yet, so I lack that power.

THE COURT: Well, I am going to make a decision and if I am wrong, I can -- I am sure I am going to be told that I am wrong. MS. ROBINSON: You'll hear-- THE COURT: I am going to - - MS. ROBINSON: - - about it indeed. Ruling THE COURT: I do not consider that I have lost jurisdiction and the matter can proceed in the form the Director has done. I fully understand - - MR. HENWOOD: I’m sorry, I didn’t hear what your decision was. Sir. THE COURT: I do not consider that I have lost jurisdiction - - MR. HENWOOD: Thank you. THE COURT: - - or I have no jurisdiction.

Now, having said that, the - someone may take a different view and want to have that

considered by another court, and -- MR. HENWOOD: Are - - Sir, are you able to provide reasons with respect to that decision? THE COURT: I think the reason is given in -- I accept the argument of the Department. I do not think that it -- the status of the parties changed, and I do not think just going through some needless paperwork when the circumstances are unchanged, and I think that the matter can proceed.

Appendix C Extracts from the Child, Youth, and Family Enhancement Act Matters to be considered 2 If a child is in need of intervention, a Court, an Appeal Panel and 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 as well as any other relevant matter: (

a) the family is the basic unit of society and its well-being should be supported and preserved; (

b) the importance of stable, permanent and nurturing relationships for the child; (

c) the intervention services needed by the child should be provided in a manner that ensures the least disruption to the child; (

d) a child who is capable of forming an opinion is entitled to an opportunity to express that opinion on matters affecting the child, and the child’s opinion should be considered by those making decisions that affect the child; (

e) the family is responsible for the care, supervision and maintenance of its children and every child should have an opportunity to be a wanted and valued member of a family, and to that end (

i) if intervention services are necessary to assist the child’s family in providing for the care of a child, those services should be provided to the family, insofar as it is reasonably practicable, in a manner that supports the family unit and prevents the need to remove the child from the family, and (ii) a child should be removed from the child’s family only when other less disruptive measures are not sufficient to protect the survival, security or development of the child; (

f) subject to clauses (

e) and (g), if a child has been exposed to domestic violence within the child’s family, intervention services

should be provided to the family in a manner that supports the abused family members and prevents the need to remove the child from the custody of an abused family member; (

g) any decision concerning the removal of a child from the child’s family should take into account the risk to the child if the child remains with the family, is removed from the family or is returned to the family; (

h) if it is not inconsistent with protecting the survival, security or development of a child who is in need of intervention, and appropriate community services are available, the child or the child’s family should be referred to the community for services to support and preserve the family and to prevent the need for any other intervention under this Act; (

i) any decision concerning the placement of a child outside the child’s family should take into account (

i) the benefits to the child of a placement within the child’s extended family; (ii) the benefits to the child of a placement within or as close as possible to the child’s home community, (iii) the benefits to the child of a placement that respects the child’s familial, cultural, social and religious heritage, (iv) the benefits to the child of stability and continuity of care and relationships, (

v) the mental, emotional and physical needs of the child and the child’s mental, emotional and physical stage of development, and (vi) whether the proposed placement is suitable for the child; (

j) the provision of intervention services is intended to remedy or alleviate the condition that caused the child to be in need of intervention; (

k) intervention services are most effective when they are provided through a collaborative and multi-disciplinary approach; (

l) if a child is being provided with care under this Act, the child should be provided with a level of care that is adequate to meet the needs of the child and consistent with community standards and available resources; (

m) if a child is being provided with care under this Act, a plan for the care of that child should be developed that (

i) addresses the child’s need for stability, permanence and continuity of care and relationships, and (ii) in the case of a youth, addresses the youth’s need for preparation for the transition to independence and adulthood; (

n) a person who assumes responsibility for the care of a child under this Act should endeavour to make the child aware of the child’s familial, cultural, social and religious heritage; (

o) there should be no unreasonable delay in making or implementing a decision affecting a child;

(

p) if the child is an aboriginal child, the uniqueness of aboriginal culture, heritage, spirituality and traditions should be respected and consideration should be given to the importance of preserving the child’s cultural identity. Review of supervision or temporary guardianship order 32

(1) If a child is the subject of a supervision order or a temporary guardianship order and the appeal period with respect to the order has expired, (

a) a director, at any time during the term of the order, or (

b) a guardian of the child or the child if the child is 12 years of age or older, once during the term of the order, may apply to the Court in the prescribed form for an order renewing, varying or terminating the original order or for a new order under

section 28, 31 or 34.

(2) On reviewing an order under this section, the Court may consider any matter it thinks is relevant, and shall consider the following: (

a) whether the circumstances that caused the child to be in need of intervention have changed; (

b) the intervention services that have been provided to the child or the family of the child; (

c) repealed 2008 c31 s9 ; (

d) whether a guardian, other than the director, has complied with the order.

(3) Unless it is satisfied that it would be in the best interests of the child to order otherwise, the Court shall, despite

section 33, extend the period of the original order pending the disposition of the application under this section. Emphasis added Permanent guardianship order 34

(1) The Court, on application pursuant to this Division by a director, may make a permanent guardianship order appointing the director as guardian of the child if it is satisfied that (

a) the child is in need of intervention or is the subject of a temporary guardianship order, (

b) the survival, security or development of the child cannot adequately be protected if the child remains with or is returned to the child’s guardian, and (

c) it cannot be anticipated that the child could or should be returned to the custody of the child’s guardian within a reasonable time. (2) ,

(3) Repealed 2003 c16 s36 .

(4) If the Court makes a permanent guardianship order, the director is the sole guardian of the person of the child and the Public Trustee is the sole trustee of the estate of the child.

(5) A director shall, on request, send the Public Trustee a copy of the permanent guardianship order. (6) ,

(7) Repealed 2003 c16 s36 .

(8) On making a permanent guardianship order or at any time during its term, the Court, on the application of a director, a former guardian of the child, the child if the child is 12 years of age or older or any other person with whom the child has a significant relationship, may make an order prescribing the access to be provided between the child and the former guardian or that other person.

(9) No order under subsection (8) relating to a child who is 12 years of age or older shall be made without the consent of the child.

(10) A director may enter into an agreement in the prescribed form with (

a) a former guardian of a child who is the subject of a permanent guardianship order, or (

b) any person who has a significant relationship with a child who is the subject of a permanent guardianship order providing for visits or other access to be provided between the child and the former guardian or other person.

(11) No agreement under subsection (10)(

b) relating to a child who is 12 years of age or older shall be made without the consent of the child.

(12) The Court shall not make an order under subsection (8) unless it is satisfied that the access provided by the order will not interfere with the adoption of the child.

(13) If an order is made under subsection (8), a director, the child if the child is 12 years of age or older, or the person to whom access is provided in the order may apply to the Court for a review of the order.

(14) On hearing an application under subsection (13), the Court may continue, vary or terminate the original order. Court application after apprehension 21

(1) If a child is apprehended under

section 19 and is not, within 2 days after being apprehended, returned to the custody of the child’s guardian or, in the case of a child who is ordinarily resident in another province, placed in the custody of the child welfare authorities of that other province, the director shall apply to the Court in the prescribed form for (

a) a supervision order, (

b) a temporary or permanent guardianship order, (

c) an order returning the child to the custody of the child’s guardian, or (

d) in the case of a child who is ordinarily resident in another province, an order placing the child in the custody of the child welfare authorities of that other province.

(2) Repealed RSA 2000 c26(Supp ) s11.

(3) An application under subsection (1) shall be heard not more than 10 days after the child is apprehended.

(3.1) Despite section 23(4), notice of an application under subsection (1) shall be served at least 2 days before the date fixed for the hearing.

(4) If (

a) a child is returned to the custody of the child’s guardian or placed in the custody of the child welfare authorities of the province in which the child is ordinarily resident, or (

b) a family enhancement agreement or custody agreement is entered into in respect of the child, before the expiration of the period referred to in subsection (3), the application under subsection (1) may be withdrawn at the time and place scheduled for the hearing of the application. (5) to

(10) Repealed 2003 c16 s22 .

(11) The Court, on hearing an application under this section, may (

a) if it is not satisfied that the child is in need of intervention, order the director to return the child to the custody of the child’s guardian, or (

b) if it is satisfied that the child is in need of intervention, make any order with respect to the child that it may make under this Division. Permanent guardianship application 18

(1) A director may make an application in the prescribed form to the Court for a permanent guardianship order under

section 34 in respect of a child if, in the opinion of the director, (

a) the child is in need of intervention or is the subject of a temporary guardianship order, (

b) the survival, security or development of the child cannot adequately be protected if the child remains with or is returned to a guardian other than the director, and (

c) it cannot reasonably be anticipated that the child could or should be returned to the custody of the child’s guardian within a reasonable period of time.

(2) Repealed 2003 c16 s19 .