GL v NAH, 2012 ABQB 347

Court of Queen ’ s Bench of Alberta Citation: GL v NAH, 2012 ABQB 347 Date: 20120525 Docket: FL03 29683 Registry: Edmonton Between: G.L. and S.L. Respondents/Applicants - and - N.A.H. Appellant/Applicant - and - Director of Child, Youth and Family Enhancement 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 30, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Don J. Manderscheid on appeal from the private guardianship order granted by The Honourable Judge S.C. Miller Dated the 10 th day of May, 2011

( 2011 ABPC 162 ; Dockets: 071170534F101001, 090929092F101001) _______________________________________________________ Introduction [ 1 ] This is an appeal of the private guardianship order of Miller P.C.J. dated May 10, 2011 regarding the infant child, J.F. History [ 2 ] The Appellant is the maternal grandmother of J.F. who was born on October, 2006. [ 3 ] The child was apprehended by the Director from his mother ’ s care at the hospital due to concerns about drug use by his mother.

The alleged father does not acknowledge paternity and wants nothing to do with the child. [ 4 ] On November 3, 2006, the mother agreed to a six month Supervision Order and J.F. returned to his mother, who was to live with the Appellant grandmother pursuant to a safe plan under which: - the mother was not to use drugs and was to take drug counselling; - the mother was not to leave the house with J.F.; and - the Appellant undertook to contact the director if any of these terms were breached. [ 5 ] On November 14, 2006, a conflict between the Appellant and the mother required police involvement.

It was discovered that the Appellant had failed to follow through with her undertaking to report drug use, and was unable to care for J.F. due to work commitments. J.F. was apprehended. [ 6 ] On November 14, 2006, J.F. was placed with his foster parents, G.L. and S.L. and has remained in their care since that time. [ 7 ] On November 21, 2006, a six month temporary guardianship order was granted. [ 8 ] The Appellant completed an orientation to caregiver training on March 31, 2007 as required by the Director for placements, whether kinship, foster placement, foster to adopt or adoption.

The Appellant thought her option was kinship, not permanent guardianship because J.F. had not been in her care long enough and her daughter was living. [ 9 ] At a permanent guardianship consultation on April 30, 2007, the Appellant supported E.F. having more time to address intervention concerns. If E.F. did not do this, the Appellant wanted to be J.F.'s permanent caregiver. The Director agreed to look at N.H. as a long term placement if J.F. was not returned to E.F. E.F. did not follow through with expectations. The Director proceeded with an application for permanent guardianship.

A permanent guardianship order was granted July 19, 2007. [ 10 ] The Appellant filed an application for a private guardianship order and a parenting order on September 19, 2007. The Director opposed the application. [ 11 ] The Appellant was seeking temporary care of J.F. until November 29, 2007 when E.F. (J.F. ’ s mother) passed away at the age of 26 years. After E.F.'s death, the Appellant wanted permanent care of J.F.

[12] On February 1, 2008, the trial judge concluded that after a PGO was in place, there was no ability for the Appellant to applyunder the Family Law Act, SA 2003, c F-4.5 (FLA) for guardianship or a parenting order and she dismissed the Appellant’s application. [13] On or around November 28, 2008, G.L. and S.L. learned the Director’s plan was that the Appellant would not be a long termplacement.

They expressed the wish to adopt J.F. [14] On appeal from the February 1, 2008 decision, Germain J. held on April 9, 2009 that the granting of a PGO under the Child,Youth and Family Enhancement Act, RSA 2000, c C-12 (CYFEA) and lack of consent of the Director did not create a jurisdictionalbarrier to a claim for guardianship under the FLA. He returned the matter to Provincial Court in order to consider the Appellant’sapplication on the merits. [15] S.L and G.L. learned that they needed to make an application for guardianship and filed an application on July 29, 2009. Thatapplication was supported by the Director.

On August 4, 2009, G.L. and S.L applied for and were granted an adjournment of the hearingof the Appellant’s application scheduled for August 10 and 11, 2009. The judge directed that the Appellant’s application be joined withG.L. and S.L.’s application. [16] Proceedings were held periodically from July 7, 2010 until March 31, 2011. [17] At the conclusion of the trial, Miller P.C.J. gave an oral decision granting private guardianship to G.L. and S.L. anddismissing the Appellant’s application. She also ordered contact with the Appellant on an interim basis.

On May 10, 2011, writtenreasons were released. [18] The contact order was terminated on December 7, 2011 by Michalyshyn J. The Appellant’s appeal of that decision wasdismissed by the Court of Appeal on February 27, 2012. She has had no contact with J.F. since December 4, 2011. [19] Although the Appellant has had weekend contact with J.F. over the years, his primary caregivers since he was 6 weeks oldhave been G.L. and S.L. He views them as his parents and the L. family as his family.

Grounds of Appeal [20] The Appellant argues that the trial judge erred in refusing to grant her private guardianship by acting on some wrongprinciple of law, disregarding significant material evidence, considering an irrelevant factor, or making an award that was unsupported bythe evidence and clearly wrong.

Standard of Review [21] On appeal, alleged errors of law are reviewed on a standard of correctness, while alleged errors of fact are reviewed forpalpable and overriding error: Housen v Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235 at paras 8, 10, 25. [22] The standard of review for the exercise of discretion and fact finding in family law cases is one of considerable deference:Hickey v Hickey, (SCC), [1999] 2 SCR 518 at 525; Hunt v Smolis-Hunt, 2001 ABCA 229, (2001), 286 AR 248 (CA)at para 94; GR v CM, 2003 ABCA 268 at para 16.

[ 23 ] Unless the judge acted on some wrong principle of law, disregarded significant material evidence, considered an irrelevant factor, or made an award that was unsupported by the evidence and clearly wrong, the decision should not be disturbed: CAS v Alberta (Director of Child Welfare) , 2003 ABCA 233 , 330 AR 371 . Positions of the Parties [ 24 ] Appellant ’ s counsel argues that the FLA and CYFEA, which came into force the same day, must be read together, and consideration must be given to the s. 2 factors in CYFEA on an application under the FLA .

Those factors strongly suggest that the family is the basic unit of society and must be preserved. Counsel for the Appellant relies on Germain J. ’ s above mentioned decision in NN v Alberta (Director of Child Welfare) , 2009 ABQB 224 , which refers in turn to TW v Alberta (Child, Youth and Family Enhancement Act, Director) , 2009 ABCA 25 . [ 25 ] Appellant ’ s counsel submits that the trial judge concluded that both applicants were fit, but she favoured the Respondents because of the length of time the child has been with them.

She found that G.L. and S.L. would continue to foster a relationship between the child and the Appellant. However, contact with the Appellant was later terminated by Michalyshyn J. [ 26 ] Counsel refers to KVW v Alberta (Director of Child Welfare) , 2006 ABCA 404 . In that case, the Court of Appeal held that the trial judge erred in assuming there was a competition between two families for the child.

Although the lower court did not err in hearing together the appellant's application for private guardianship and the Director's application for permanent guardianship, it should have considered the merits of the application for private guardianship first.

Once that matter was resolved, the court could properly assess whether the child was in need of protective services. [ 27 ] Counsel relies on KVW as support for the argument that the birth family, being the Appellant in this case, should have been given priority, and the fact that a PGO was granted in the present case did not mean the Director should stop considering the s. 2 factors. Accordingly, if a family member comes forward, he or she should have priority.

There is no logic to distinguishing post-PGO situations; there is no reason why the Director should not still give priority to fit family members. [ 28 ] Appellant ’ s counsel also argues that the trial judge did not properly cite the test and should have attributed different weight to various factors, most importantly the connection to the birth family. [ 29 ] Appellant ’ s counsel further submits that the trial judge should not have relied on hearsay evidence, because untested evidence is unreliable.

She did not consider whether better evidence was available. [ 30 ] Counsel for the Respondents, G.L. and S.L., submits that the Appellant ’ s application was under the FLA , and notes that the Director ’ s consent would have been required if the application were proceeding under the CYFEA . There is nothing to suggest that “ family ” is defined primarily as the birth family. All that Germain J. said in NN was that it should be open to birth family members post- PGO to bring an application under the FLA.

That is what happened here. [ 31 ] As for hearsay, Respondents ’ counsel submits that all of the significant hearsay evidence which was referred to by the trial judge was put to the Appellant at trial and addressed by other witnesses. The Respondents conclude that the trial judge made no reviewable errors. Analysis [ 32 ] This is a post-PGO situation. A child's legal status changes after a PGO. In NN , Germain J. held that the Appellant was

entitled to bring a guardianship application under the FLA , even though a PGO had been issued under the CYFEA . He also held, however, that while the significant change to the status of a child resulting from a PGO does not preclude a guardianship application under the FLA, it does affect the strength of an applicant's case. [ 33 ] As noted by the trial judge in this case, under s. 24(1) (

a) of the FLA , a judge cannot make a guardianship order for a child in the permanent guardianship of the Director without the Director's consent. The Director's consent can be dispensed with under s. 24(2), but only if there are good and sufficient reasons for doing so. [ 34 ]

Section 18 of the FLA provides that in proceedings under the FLA, courts are to consider a particular list of factors relating to the best interests of the child. Given the mandatory nature of s. 18 , a court would err in failing to consider and be guided by those factors.

Certain factors, for example the child ’ s psychological and emotional needs, the history of care for the child, and the child ’ s cultural, linguistic, religious and spiritual upbringing and heritage are broad enough to encompass the principles reflected in s. 2 of the CYFEA regarding the importance of blood relations. [ 35 ] The Court of Appeal in TW expressly did not address the considerations which might arise in a case where a PGO has been granted before a guardianship application under the FLA is filed.

I do not read that case as suggesting that the s. 2 CYFEA factors and principles somehow override the statutorily mandated FLA factors where a blood relative is applying under the FLA in a post-PGO situation. [ 36 ] The Court of Appeal in KVW held that where a guardianship application is heard with an application for a PGO, the guardianship application must be decided first. The Court reasoned at paras 22 to 24 that a PGO cannot issue until a court has decided that a child is in need of protective services.

To determine whether the child is in need of protective services, a court must look not only at the legal guardian but also at any arrangements the legal guardian has made for the care of the child. If the legal guardian has placed the child with a person who is fit to parent, then there is no basis for state intervention as the child is not in need of protective services at the critical time. In such a situation, the applicant for private guardianship whose application is consented to by the legal guardian is not required to establish that she is better than any other parents the state might find.

However, the Court notes at para 25 that even then, it must be in the best interests of the child for a private guardianship order to be granted. [ 37 ] The reasoning which drove the conclusion in KVW does not apply post-PGO. At that point, a determination has already been made that the child was in need of protective services. That issue is not before the court in a post-PGO guardianship application under the FLA .

The child has already become a ward of the state, and the Director has stepped into the shoes of the former legal guardian in terms of consenting to an application for private guardianship. [ 38 ] I conclude from a review of the CYFEA , the FLA and the relevant case law, that in this post-PGO situation, the trial judge was not required to decide the Appellant ’ s guardianship application prior to addressing the application of G.L. and S.L. Nor was the trial judge bound to give priority to the application of the Appellant, a blood relative.

The trial judge was, however, obliged to consider the best interests of the child as defined in s. 18 , including among other factors the Appellant ’ s role in J.F. ’ s life, his ties to her, and his family heritage. [ 39 ] Trial of this matter lasted 13 days. There were 21 witnesses, including two experts. The trial judge in the written decision provided an overview of the evidence.

She considered the following areas in particular: 1) attachments of J.F.; 2) parenting skills of the parties; 3) the child ’ s connection to family; 4) the parties ’ financial resources; 5) the parties ’ health limitations affecting ability to parent; and 6) the strained relationship between the Appellant and G.L. and S.L. [ 40 ] There is no merit to the suggestion that the trial judge did not properly consider the best interests of the child. She was well aware of J.F. ’ s history and the Appellant ’ s involvement in his life.

The trial judge noted numerous issues with the Appellant ’ s parenting history and concluded that although the Appellant had shown appropriate parenting skills with J.F. since June 2008, a number of her actions had been to J.F.'s detriment. [ 41 ] In particular, the trial judge emphasized that the Appellant had acted contrary to the child ’ s best interest in continually attempting to undermine his relationship with G.L. and S.L.

She had exhibited rigidity, anxiety, unwillingness to consider the opinion of J.F.'s physician, and a zealous position that J.F. should be with her as a blood relative, all of which diminished her ability to consider

J.F.'s emotional well being from his point of view. She was reluctant to accept that J.F. may be predisposed to problems as he grows older. If problems were to arise, her attitude indicated she might be reluctant to seek help as she is wary of authority, and could view any problem as a reflection on her parenting ability. [ 42 ] Any reliance on hearsay by the trial judge did not undermine the decision. The Appellant testified with respect to the evidence pertaining to her weaknesses.

The hearsay cited by the trial judge related to current concerns and witnesses were called in relation to those concerns. [ 43 ] The trial judge demonstrated a balanced approach, noting that the Appellant had shown some improvement in her parenting skills. [ 44 ] The trial judge could not foresee that contact would be discontinued by Michalyshyn J. ’ s subsequent order. [ 45 ] Having thoroughly reviewed the reasons in support of the decision, I find no reviewable error. In my view, the real essence of the Appellant ’ s argument is that the trial judge should have weighed the evidence in a different manner.

I find that the trial judge made a reasoned determination of J.F. ’ s best interests, based on a review of the evidence before her. There is no indication that she was not alive to the importance of the Appellant ’ s status as J.F. ’ s maternal grandmother. She addressed the significant factors in the case and came to a reasonable conclusion. [ 46 ] I conclude that the trial judge did not act on a wrong principle of law, disregard significant material evidence, consider an irrelevant factor, or make an award that was unsupported by the evidence and clearly wrong. Conclusion [ 47 ] The appeal is dismissed.

Heard on the 7 th day of May, 2012. Dated at the City of Edmonton, Alberta this 24 th day of May, 2012. Don J. Manderscheid J.C.Q.B.A. Appearances: Cindy D. Turner Cochard Johnson for the Appellant, N.A.H.

Tina Huizinga Barr Picard for the Respondents, G.L. and S.L. Vanita Pillay Alberta Justice Family Law Social Enhancement Legal Team for the Respondent, Director Jane MacPherson for the Child _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice Don J. Manderscheid _______________________________________________________ A restriction has been added to the first page