D. W. v. V. W., 2012 ABQB 46

Court of Queen ’ s Bench of Alberta Citation: D. W. v. Alberta (Child, Youth and Family Enhancement Act, Director), 2012 ABQB 46 Date: 20120120 Docket: FL03 19325 Registry: Edmonton Between: D. W. and V. W. Applicants - and - Alberta (Child, Youth and Family Enhancement Act, Director) 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. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice M.R. Bast _______________________________________________________ [ 1 ] I will refer to the children in this memorandum by the first names that they went under at the time of the PGO, that is B1 and B2. I will refer to the guardianship applicants, D.W. and V. W. as the Applicants; the respondent, Director, as the Director and; the foster-to-adopt family as the Third Party.

[ 2 ] The parties consented to this matter being heard by way of

summary trial in the consent order granted on September 24 th , 2010. The consent order sets out the issues to be determined in this

summary trial. The full facts of this case are set out in the agreed statement of facts, which was filed on October 25 th , 2010, a recap of which follows. [ 3 ] The applicants are the biological parents of the two children, B1 and B2, who are the subjects of this guardianship application and who are currently 12 and 9 years of age respectively. The Department of Child Welfare, now Child and Family Services, who is the respondent Director, became involved with the family when the older child B1 was apprehended at the age of 2 weeks in 1998. That child was returned to the care of the Applicants in March 1999.

In August 2001, when that child was 3 years of age and the younger child was 5 months old, both children were apprehended, along with the other children in their household. In September 2001, the Director applied for a Temporary Guardianship Order (TGO). [ 4 ] The TGO was granted in February 2002 and in May 2002 the Director applied for a Permanent Guardianship Order, (PGO) for both children. The Applicants opposed that PGO and during the course of a 36-day trial in which 61 witnesses were called, the Director called 52 witnesses and the Applicants called 9.

On May 6 th , 2004, at the conclusion of the PGO trial, Judge Braburn issued an oral decision granting the PGO, and permitting the Applicants to have continued access to the children once per month for 4 hours. [ 5 ] The Applicants appealed that decision, and the appeal of the PGO was dismissed in its entirety. The Applicants did not pursue any further appeal with respect to the PGO. [ 6 ] At the time of the PGO trial, the children were in a foster-to-adopt home, where they had resided since June of 2002.

That placement ended in September 2007 when the foster-to-adopt family indicated a willingness to adopt only one of the two children. The children resided in a group home from September 2007 until July the 29 th , 2009, when they were placed with the Third Party. [ 7 ] The Third Party filed their applications to adopt the 2 children at the beginning of February 2010.

The Applicants have filed objections to that adoption application, and the adoption trial is scheduled to be heard along with the full trial of this application in May 2011. [ 8 ] In June 2007, the Applicants applied in Provincial Court to increase the access that they were granted in the PGO, and the Director cross applied to terminate their access.

Those applications were adjourned sine die after an agreement was reached through a JDR process to maintain the access status quo. [ 9 ] In January of 2010, the Director filed a new application to vary the Applicants’ access, and in April 2010 the Director and the children made an expedited ex parte application to terminate the Applicants’ access. Notice was then given to the Applicants, and their access has been suspended since May the 27 th , 2010. The trial on the issue of their access has been adjourned sine die. [ 10 ] The new Alberta Rules of Court provide for

summary trials in

part 7, division 3, rules 7.5 to 7.11, and rule 7.9 provides: 7.9(1) After a

summary trial, a judge may (

a) dismiss the application for judgment, or (

b) grant the application and give judgment in favour of a party, either on an issue or generally.

(2) Judgment must be granted after a

summary trial unless

(

a) the application is dismissed, (

b) on the evidence before the judge, the judge is unable to find the facts necessary to decide the issues of fact or law, or (

c) the judge is of the opinion that it would be unjust to decide the issues on the basis of the

summary trial. [ 11 ] Counsel for the Applicants raised two preliminary issues before the

summary trial commenced. First she submitted that the issue of consent of the Director was not identified in the September 24 th consent order, or the agreed statement of fact, which identifies the issues actually differently than that in the consent order. Second, she took issue with the additional facts put forward within the Third Party’s filed brief, which attached quite a massive court report from back in 2003. [ 12 ] Counsel for the remaining participants took the position that the Director’s consent is an issue impacting on the issue of jurisdiction, as identified in the consent order, and therefore can properly be argued at this

summary trial.

Counsel for the remaining participants argued that references to additional facts was not prohibited in the consent order, which set out an agreed statement of fact had been filed, and that the additional facts were just matters which could not be unanimously agreed to, and in any event the additional facts were really only for the purposes of providing the Court with context in relation to the family. [ 13 ] Since the primary issue in this trial is one of jurisdiction, and the consent of the Director goes to the issue of jurisdiction, and since counsel for the Applicants had the opportunity to respond in her brief and orally on that issue, I am satisfied that it can properly be considered a this

summary trial. As for the issue of additional facts in the briefs, it seems to me that the additional facts either go to the merits of the PGO or potentially the merits of the Applicants’ guardianship application, and as such, in my mind, they are not particularly relevant to the jurisdictional issue at this

summary trial, except perhaps in the event that I determine that I am unable to determine the issue put before me due to lack of facts. As such, the only facts that will be considered in this

summary trial, at least at this point, are those set out in the agreed statement of fact. [ 14 ] The issues on this

summary trial are very narrow, and the consent order granted by Justice Ross on September 24 th , 2010, identifies only two issues:

(1) Whether the Court has jurisdiction to hear a guardianship application by the applicants when the PGO has been granted, having regard to the issues of res judicata ; and,

(2) Whether the matter should be addressed in a full viva voce trial. [ 15 ] Paragraph 11 of the agreed statement of fact, signed off by all the lawyers who filed briefs and are here today, appears to add an additional issue: Is the fact that B1 has not provided her consent to the Family Law Act application for guardianship fatal to the Applicants’ guardianship application?

I am satisfied that the consent of the Director is related to jurisdictional issues before me, as I have said, and so the issues to be determined today are the two set out in the consent order, the one added in the agreed statement of facts, paragraph 11, as well as the Director’s consent. [ 16 ] I will note here that the children are represented by counsel who has been their representative since at least 2003 which was before the PGO. At that time she was representing the children as

section 112 counsel, and she has continued to represent the children before the Court at the PGO, its appeal, the access applications, and now in this action. [ 17 ] I will commence these reasons by saying that I am satisfied that the jurisdictional and consent issues raised in this

summary trial involve issues of fact and law that a

summary trial is capable of resolving. Further, I am satisfied that all the evidence necessary for the determination of these issues is before the Court in the agreed statement of fact, that no further purpose would be served by directing the matter to a full trial and that it is not unjust to have these issues determined on a

summary trial basis. [ 18 ] On the issue of whether this matter should be addressed in a full viva voce trial, it seems to me that the issue before me is narrow and one of legal

interpretation based on agreed facts. And as such, the basic facts in the agreed statement of fact, I believe, are all that is necessary to decide the issue. Addressing this matter in a full viva voce trial with new evidence as to changes in circumstances, which the Applicants wish to raise, would bring into play the merits of that application, which is not the issue before me. What is before me is the threshold question of whether or not they are entitled to make this Family Law Act application in the circumstances set out in the agreed statement of fact.

[ 19 ] Materials were filed in this matter by the following participants: First of all the applicants; secondly, the Director; third,

section 112 counsel on behalf of the children; and lastly, the Third Party, who have filed adoption claims with respect to both of the children.

Counsel for the Director and the Third Party both argue that the PGO was granted after a trial in which the Applicants participated, renders their guardianship application res judicata and that the absence of consent of the Director and the child B1 precludes the Applicants from being able to bring their Family Law Act guardianship application. [ 20 ] Counsel for the children argues that the Applicants are estopped from making their Family Law Act guardianship application on the grounds that it is res judicata , and that the consents of the child B1 and the Director are pre-requisites to the Family Law Act guardianship application. [ 21 ] Counsel for the Applicants argues that I should refuse to consider the stated jurisdictional issues and direct them to be heard at the trial on all of the evidence, and that the application for guardianship should not be barred on the grounds that the issue is res judicata , nor on the grounds that the absence of consent of the child B1 or the Director are fatal to the guardianship application. [ 22 ] In my analysis of the issues, I am going to start off by referring to the decision of Justice Verville in A.L.M. v.

Alberta (Director of Children ’s Services Region 10), 2010 ABAB 791, which was released last week on the 9 th of December 2010, because that case seems to me to be directly on point. In A.L.M. , the applicants consented to a PGO with respect to their children, and then a year later applied for guardianship of those same children under the Family Law Act .

In his analysis, Justice Verville stated: [20] The doctrines of res judicata and issue estoppel generally have limited, if any, application with respect to temporary orders in child welfare matters. [21] The situation is otherwise with respect to adoption orders. In A.J.G. v.

Alberta, 2006 ABAB 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. [ 23 ] Justice Verville at paragraph 23 stated: [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. [ 24 ] Finally in referring to

section 55, at the end of paragraph 21, Justice Verville stated: Of course, the Director is always obliged to exercise its discretion making powers in the best interests of the child:

section 2. [ 25 ] Justice Verville then referred to the case of T.S. v. Alberta , a 2002 decision of the Court of Appeal where the Court commented on the nature of PGOs under the Child Welfare Act . And at the end of paragraph 33, the Court in T.S. stated: Once the appeal period for a PGO has expired, the guardian has no means to compel a review of a PGO. [ 26 ] Justice Verville concluded that there there is no reason to believe that the situation is otherwise under the current CYFEA.

[ 27 ] The applicants in A.L.M. relied upon the case of Re: F.(A.), 2009 ABCA 25 , in which the Alberta Court of Appeal considered the interaction between that of CYFEA and the Family Law Act and more particularly whether CYFEA guardianship provisions formed a complete code regarding children in care and precluded private guardianship applications for guardianship of such children under the Family Law Act . [ 28 ] In the Re: F.(A.) , Madam Justice Paperny writing for the Court, expressly declined to address section 34(4) which provides that the Director under a PGO is a sole guardian of the child. [ 29 ] At paragraph 22 in the Re: F.(A.) the Court also stated: [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 Family Law Act 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 ] Justice Verville in A.L.M . went on to say that the Re: F.(A.) case and the N.(N.) v.

Alberta (Director of Child Welfare) 2009 ABAB 224 case both addressed situations where someone other than the prior guardian was applying for guardianship. [ 31 ] It should also be noted that these cases deal with other guardianship applicants who could be heard contemporaneously with a PGO and clearly before a PGO is granted.

Justice Verville stated in A.L.M. that neither Re: F.(A.) nor N.(N.) is determinative of the facts in A.L.M. and he said at paragraph 35, I will quote him: [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 the 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 of 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. [ 32 ] Ultimately, Justice Verville found that he did not have jurisdiction to hear the Family Law Application. [ 33 ] The interplay between CYFEA and the Family Law Act was addressed by Provincial Court Judge McLellan, R.K. v. Alberta (Child, Youth and Family Enhancement Act Director) 2008 ABPC 25 , referred to in paragraph 25 of the Third Party’s brief.

That was a case where foster parents with whom children had been placed under a PGO and were unsuccessful in an administrative appeal to keep the children in their care, then brought an application for guardianship under the Family Law Act . Provincial Court Judge McLellan in the R.K . case said at paragraph 39 : [39] In order to determine if the applicants are able to apply for guardianship under the FLA, , a consideration of how these statutes should be read together is necessary. The guardianship provisions of both statutes, statutory

interpretation rules, and the case law will be reviewed in order to ascertain the meaning of the legislative text in both statutes, the purpose of the legislation considered as a whole and attendant consequences for all those affected by the legislation. [ 34 ] Judge McLellan then went on and discussed the legislative history encompassing both of the current Acts at the time in 2008, as well as their predecessors in addition to the jurisprudence from Alberta and other jurisdictions across Canada.

And then at paragraphs 71 and 72, in obiter she went on to state: [71] If the provisions of the FLA apply generally to children in care or specifically to the children in the present case, it follows that the former parents who were part of the PGO trial but no longer guardians (section 23) could then apply under the FLA in concert with or followed by other individuals who believe they should be guardians and want an opportunity to have a guardianship hearing in front of the Court even if they Director does not support their application.

[72] An

interpretation of guardianship provisions cannot be supported where the result is a never ending court process versus the best interest of the child in achieving stability and permanency. [ 35 ] So turning to the analysis of the issues raised in this

summary trial, I am going to first deal with the issue of res judicata. Res judicata has two branches, issue estoppel and cause of action estoppel, and it is argued by the Director, the children, and the Third Party that the doctrine of res judicata precludes the Applicants from bringing their family law application for guardianship. An analysis of issue estoppel involves the answering of a three-part test. First, were the parties the same in both proceedings? Second, was the same issue previously decided?

And, third, was that decision final? [ 36 ] On the issue of same parties or on the test of the same parties, at the PGO trial the parties were the Applicants and the Director. The children were represented by

section 112 counsel in order to ensure that their views and interests were represented to the Court. In the case before me, the parties listed in the style of cause are the Applicants and the Director. The children are again represented by

section 112 counsel. The Third Party has not been added as a party to this action nor has this action been consolidated with the Third Party’s adoption action.

While the Third Party is interested in this action and has been permitted to file a brief, they are not technically a party to this action, and so it is my finding that the parties in this action are the same as the parties involved in the 2004 PGO action. [ 37 ] On the test of whether the same issue was previously decided, counsel for the Applicants argued that the facts and question in this Family Law Act guardianship action are different than those in the previous PGO action.

She argued that in the PGO action the facts that were particularly relevant to the ultimate question was whether the children could be returned to the Applicants within a reasonable time, whereas in this action, the facts are different and the Court in this action is being asked to consider evidence subsequent to the PGO, which did not exist at the time of the PGO in order to show a change in circumstances for both the parents and the children. [ 38 ] While I can see that the facts and the two actions are clearly different, with the PGO action dealing with facts from 6 years ago and perhaps before that, and this Family Law Act application dealing with what has happened since, it seems to me that the overall issue or question at the crux of both actions is who should be the guardian or guardians of the children B1 and B2.

And so as such it is my finding that the issue in this action is the same as that in the PGO action. [ 39 ] The last part of the test is whether or not the PGO was a final order, and while Justice Verville did not expressly state in A.L.M. that a PGO is a final order, the result of his decision on the jurisdictional issue is consistent with the PGO being a final order. The fact that section 40(2) of CYFEA sets out that the PGO remains in effect until the happening of five anticipated events does not make it any less final.

The events which are set out in that subsection are natural events expected to occur as a result of aging through the life of the child or events that are incidental to the guardianship role that the Director is given under the Act , and that is to act in the best interests of the children who are at the subject of the PGO and in finding them permanency and stability. [ 40 ] I am satisfied that the PGO was and is a final order, and upon coming to that conclusion, I find that the three tests for issue estoppel have been met and the applicants should be estopped from bringing their family law guardianship application on the grounds that the issue is res judicata . [ 41 ] As for cause of action estoppel, I am further satisfied that the purpose and relief sought in both the PGO action and this Family Law Act action, are the same.

In both actions, there is a contest between the two named parties – the Director and the Applicants. The Third Party has not been named in this action, they have not been added as parties, and this guardianship application has not been consolidated with adoption application. Therefore, the purpose of both actions is to determine who should be the guardians of the children B1 and B2 as between the Director and the Applicants.

As such, it is my finding that the Applicants are estopped from bringing their Family Law Act application also on the grounds of cause of action because the cause of action is res judicata . [ 42 ] Based on those findings, it is technically unnecessary for me to address the issue of the absence of consents of child B1 and the Director to the Applicant’s guardianship application, but in the event I am wrong on the issues of res judicata , I will briefly address the issue of consent.

I agree with Justice Verville when, at paragraph 34, in A.L.M. , he stated that: ...the applicants, who were previous guardians, are expressly contemplated in

section 35 (CYFEA) and could with the consent of the Director apply for guardianship under

section 55. The Court in that situation cannot dispense with the consent of the Director.

[ 43 ] The Court cannot dispense with the consent of the Director and should not dispense with the consent of the Director because that would interfere with the discretion given to the Director in the exercise of the onerous and quite unique guardianship status and responsibilities imposed upon the Director by the PGO. [ 44 ] Further, section 24(1)(

b) does not permit the guardianship order to be granted without child B1's consent since she is over the age of 12 years, and while B1’s consent, and the consent of the Director, may be dispensed with under section 24(2), the Applicants have not requested that relief in their pleadings, and since the matter is already set for trial, there is some question as to whether or not they would be permitted to amend their pleadings. [ 45 ] Lastly, the issue with respect to child B2, who is under the age of 12, is, like the issue of abuse of process, not an issue which was identified by the consent order or the agreed statement of fact, and so I do not think it is appropriate for me to comment on that issue at this time.

Heard on the 16 th , day of December, 2010. Delivered orally at the City of Edmonton, Alberta on the 16 th day of December 2010. M.R. Bast J.C.Q.B.A. Appearances: A.C. Kellet for the Applicants B.J. Kash for the Respondent J.D. MacPherson for the Children T. Huizinga for the Third Party