J.L. Appellant - v. -, 2012 ABQB 580

Court of Queen ’ s Bench of Alberta Citation: J.L. v. Alberta ( Child, Youth and Family Enhancement Act , Director), 2012 ABQB 580 Date: 20120921 Docket: FL03 33588 Registry: Edmonton Between: J.L. Appellant - and - Director of the Child, Youth and Family Enhancement Act Respondent Restriction on Publication: Identification Ban – See the Child, Youth and Family Enhancement Act ,

section 126.2 . No one may publish the name or photograph of a child, or of the child’s parent or guardian, in a manner that reveals that the child is receiving, or has received, intervention services. NOTE: This judgment is intended to comply with the restriction so that it may be published. Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision of the

Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [1] Alleging the commission by the trial judge of two errors, the mother of two children, aged nearly 14 and nearly 12, appealsthe decision of a Provincial Court Judge which granted the Director’s application for permanent guardianship of those children.

Themother claims, on the one hand, that the trial judge should have adjourned the trial when the mother did not appear in a timely way to continue her examination-in-chief on the morning of the 5th day of a trial that was set for 5 days, and, on the other, that the trial judgeshould have addressed the possibility of returning the children to the mother’s care pursuant to a supervision order. [2] The appeal is denied. [3] The standard of review of a judge’s decision to deny an adjournment is palpable, or obvious, and over-riding, or material,error; under the “spectrum of particularity” analysis proposed by the Supreme Court of Canada, the factual background to theadjournment issue was extremely important whereas the legal principles applying to those facts were never in doubt: Hansen. [4] In the circumstances here, the trial judge did not commit any palpable or over-riding error in denying an adjournment.Given both the mother’s long track record of not keeping schedules set to deal with the children’s best interests and the lengthy delay inmaking a decision about the children’s guardianship coupled with the evidence about the negative effect on the children of not having areliable parenting structure, although an adjournment might have been granted, it was certainly not required.

On the contrary, the trialjudge took into account the interests of the mother, the interests of the children, and the interests of the administration of the civil justicesystem.

She committed no palpable and over-riding error. [5] The standard of review relating to the judge’s statement about the legal framework for the return of the children to themother’s care is correctness; the issue here is whether the trial judge failed to take into account the legal possibility of returning thechildren to the mother’s care subject to a supervision order. [6] The trial judge did not commit any error of law relating to the legal framework applying to the potential outcomes of thehearing.

In her contested remarks, the trial judge was merely re-stating the very high threshold which the Director had to meet in order toobtain the permanent guardianship of these children. Moreover, it was tacitly, if not expressly, understood by all parties that the return ofthe children to the mother under a supervision order was not a possibility in the circumstances of this case.

Even the arguments made bythe mother’s lawyer suggested that the only course of action that could be realistically proposed as an alternative to permanentguardianship was temporary guardianship and that even that possibility might not be open in relation to the older child. Cases and authority cited [7] By the Appellant: B.N. v Alberta (Director of Child Welfare), 2004 ABCA 40 , [2004] A.J. No. 229; Alberta(Child, Youth and Family Enhancement Act, Director) v R.M., 2011 ABPC 244; S. v Alberta (Director of Child Welfare), 2003 ABQB1062 , [2003] A.J.

No. 1607; L.A. v Alberta (Director of Child, Youth and Family Enhancement), 2010 ABQB 138; NewBrunswick (Minister of Health and Community Services) v G.(J.), File No: 26005, 1998: November 9; 1999: September 10; Child,Youth and Family Enhancement Act, R.S.A. 2000, c. C-12. [8] By the Director: Re D.(K.)2009 ABQB 365; S.(C.A.) v Alberta (Director of Child Welfare) 2003 ABCA 233.

[ 9 ] By the children: Housen v Nikolaisen 2002 SCC 33 . [ 10 ] By the court: Copcan Contracting Ltd. v Ashlaur Trading Inc. 2010 BCCA 597 ; Graham v Vandersoot (Vandersloot) 2012 ONCA 60 . Appendix A: Decision of the Provincial Court Judge 1. Background

a) Factual [ 11 ] The appellant ’ s children were apprehended on October 29, 2010 as a result of reports that the mother had been difficult to arouse the previous day. Following apprehension, the Director applied for a permanent guardianship order with access, and a custody order. Initial custody was granted to the Director on December 20, 2010.

As of the date of the appeal, the appellant ’ s son is nearly 14 years old and her daughter is nearly 12 years old. [ 12 ] The situation here may be thought of as somewhat unusual in that there was no temporary guardianship order in place with respect to these children at the time of the apprehension in the Fall of 2010. However, the trial judge was informed about supervision orders and temporary guardianship orders which had been made in respect of these children in the past.

In the circumstances here, the child welfare authorities had had, prior to the date of apprehension, much opportunity of making observations over a lengthy period of time about the mother ’ s ability to parent and the children ’ s parenting needs. Although the trial evidence commenced with reports of contact as early as 2000, the most relevant trial evidence dealt with the issues that arose from approximately 2006 onward.

That evidence included reports that, during the whole of the period, the mother expressed serious health concerns relating to herself and that, from very early in his life, she also expressed serious concerns relating to her older child ’ s mental health. An assessment eventually concluded that the older child did not have all of the problems the mother attributed to him, but suffered only from attention deficit hyperactivity disorder.

That assessment resulted in a reduction of the services provided to the mother, but did not result in any change in the mother ’ s expressed inability to parent that child. [ 13 ] In January 2007, a parenting expert made a report in which the expert stated that she was unable to complete an assessment of the mother because the mother was physically, mentally and emotionally unable to be tested and had not been able to keep appointments for testing.

At that time, the expert concluded that, despite the inability to complete testing of the mother, it was not necessary to complete the assessment since various family and child support services were already providing 13 hours of support, daily, to the family and that was considered to be sufficient support. [ 14 ] After apprehension, the Director learned that the mother had, after the 2007 report from the parenting expert, made an informal placement of the older child; a son - hereafter S. - that placement lasted approximately two years. [ 15 ] The Director also learned that there had been a relatively lengthy placement of the younger child, a daughter - hereafter D. - with the maternal grandmother when that child was in Grade 1. [ 16 ] After apprehension, a trial date was set for August, 2011.

On the date set for trial, the father of the older child asked for an adjournment so that he could obtain the assistance of a lawyer. The trial was then re-scheduled to the Spring of 2012. A lawyer was appointed for the father of the older child. However, that father never kept in touch with the lawyer and did not attend at the opening of this trial. An interpreter who had been retained to assist that father for the 5 day trial was told that his services would not be required.

The father of the younger child was represented at this trial; that father endorsed the Director ’ s application. [ 17 ] The background relating to the previous adjournment of this particular trial must also be assessed in light of a previous attempt to have a trial in relation to the appellant ’ s son; that trial, scheduled for 2009, had had to be adjourned because the mother had presented a medical note stating that she was so unwell she could not participate in a trial.

[ 18 ] The trial judge heard evidence of many efforts made by the Director after the apprehension in October 2010 to have supervised parenting visits between the children and both their mother and the father of the younger child who has also actively step- parented the older child. Although any visits that did occur were obviously much enjoyed by the children, both the mother and the father/step-father cancelled many planned visits.

To give but one example, there was no visit by either the mother or the father/step- father during the period mid-December 2011 to early January 2012, which period can roughly be described as the Christmas vacation. [ 19 ] The evidence at trial disclosed that, when she did keep a planned visit with the children, the mother was generally attentive to them. However, she did not typically plan those visits with the children ’ s interests in mind.

As but one example, she kept a scheduled visit with the older child on his birthday; when reminded that it was his birthday, she decided that she would use the visit to go shopping with the child. That led to some problems because the child did not want the item which the mother had suggested as a present.

Also, the step-father suggested that the purchase of an expensive computerized toy by the son was a “ rip-off ” . [ 20 ] As of the opening date of the trial, the older child was living in a group home where he appeared to be doing relatively well, and the hope was that he could eventually be returned to the care of his maternal grandmother and her husband.

As of that date, the younger child was living with the maternal grandmother and the hope was that the grandmother and her husband would adopt that child. [ 21 ] On the fifth day of a scheduled five day trial which had begun on March 12, 2012, the appellant did not appear at 9:30 a.m. when court convened; she was in the midst of examination-in-chief at the time and that examination was to resume on the Friday morning. The appellant ’ s lawyer had not heard from her and could not reach her.

During a discussion of how the appellant ’ s absence should be dealt with, the trial judge stated: “ I am not adjourning this trial. This is day 5, she is in the middle of her testimony, she has to get here. Unless she has been admitted to the hospital, she is to get here or the trial is going to be completed in her absence.

That is the message to be conveyed. ” This lead to additional efforts to either obtain the appellant ’ s presence or at least to learn why she has not appeared. [ 22 ] With a view to using the time available, the Director suggested, and the other parties present agreed, to use the court time available on the Friday morning which was the last scheduled day of trial to make submissions with a view to allowing the court time for consideration and to give a decision at 2 p.m. if nothing new should be learned of the mother ’ s whereabouts. [ 23 ] Over the lunch hour, the appellant was in touch with her lawyer who informed the judge that the appellant expected to be at the court house by 2:10 p.m.

However, no explanation was provided for the appellant ’ s absence. The appellant did not arrive by 2:10 p.m. [ 24 ] At 2:31 p.m., the court reconvened; the appellant was not present. The trial judge decided not to adjourn the trial, but rather to immediately issue her decision and outline the reasons for that decision. [ 25 ] At 2:37 p.m., the appellant entered the court room. The trial judge told her that she had already made her decision and had started to give her reasons and that the appellant could stay and listen to the reasons if she chose. The appellant declined to stay.

The trial judge continued to outline her reasons.

b) Legislative [ 26 ] The following sections of the Child, Youth and Family Enhancement Act are relevant to this appeal: 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. . . . Division 3 Court Orders Supervision order application 16(1) A director may apply to the Court in the prescribed form for an order under

section 28 authorizing the director to provide supervision of the child and the persons with whom the child resides if, in the opinion of the director, (

a) the child is in need of intervention,

(

b) supervision of the child and the persons with whom the child resides is necessary to ensure that the survival, security or development of the child is protected, and (

c) there are reasonable and probable grounds to believe that the child ’ s survival, security or development will be adequately protected as a result of the supervision.

(2) If a director applies under subsection (1), the director shall include with the application recommendations with respect to the terms of the proposed supervision. Temporary guardianship application 17 A director may apply in the prescribed form to the Court for a temporary guardianship order under

section 31 in respect of a child if, in the opinion of the director, (

a) the child is in need of intervention, and (

b) the survival, security or development of the child cannot be adequately protected if the child remains with the child ’ s guardian, but it can be anticipated that within a reasonable time the child may be returned to the custody of the child ’ s guardian or, if the child is 16 years of age or older, the child will be able to live independently. 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 . . . . Termination of permanent guardianship agreement or order

35(1) If a child is the subject of a permanent guardianship agreement or order, the director, if the director is satisfied that the childshould be returned to the guardianship of the person who was the guardian of the child before the agreement or order was made, mayapply to the Court for an order terminating the permanent guardianship agreement or order.

(1.1) If a permanent guardianship agreement or order is terminated pursuant to subsection (1), the person, other than a director, who wasthe guardian immediately before the permanent guardianship agreement or order was made is the guardian of the child unless the Courtorders otherwise.

(2) Repealed 2003 c16 s39. 2. Standard of review [27] The parties agree, and I agree with them, that the standard of review on an appeal from a judicial determination on a questionof law is correctness. [28] However, I disagree with the appellant’s characterization of this appeal as raising only questions of law.

Rather, I agree withthe lawyer for the children who takes the position that, at least the issue of whether the trial judge erred in denying an adjournment, is amixed question of fact and law and that the standard of review of such a decision “falls along a spectrum of particularity” as the SupremeCourt of Canada described it in Housen, at para. 28.

I take the Supreme Court’s words to mean that where the determination appealedfrom is a question of mixed fact and law, and where the specific issue appealed is more a question of law than of fact, then theappropriate standard of review will approach correctness but if the determination appealed from is more a question of fact than law, thenthe appropriate standard of review is closer to the palpable and over-riding error standard applied to questions of fact. [29] I pause to note that although the Supreme Court did, in Housen, explain what it meant by “palpable”, it did not explain whatit meant by “over-riding”.

The British Columbia Court of Appeal has concluded that “over-riding” means an error which makes, orcould make, a difference in the decision: see, for example, Copcan Contracting Ltd. I accept that court’s

interpretation of the word“over-riding” and adopt the word “material” as a vehicle for that notion. [30] Here, the appellant identified two alleged errors: the failure to grant an adjournment and the failure to recognize that childrencould have been returned to the mother under a supervision order. In my view, each of these decisions has its own standard of review. 3. Adjournment [31] I consider the trial judge’s decision to deny an adjournment to be a mixed question of fact and law, which is heavily weightedby the facts.

The law on adjournments is relatively simple: adjournments are a matter of discretion but the discretion must be exercisedjudicially. A recent appellate description of the principles relating to adjournments can be found in the Ontario Court of Appeal’sdecision in Graham : The Applicable Legal Principles 5 Adjournment decisions are highly discretionary and appellate courts are rightly reluctant to interfere with them. Laskin J.A.succinctly summarized the operative legal principles in Khimji v. Dhanani (2004), (ON CA), 69 OR. (3d) 790(C.A.).

Although he was in dissent, the majority accepted his articulation of the statement of principles. At paras. 14 and 18 he said: 14. A trial judge enjoys wide latitude in deciding whether to grant or refuse the adjournment of a scheduled civil trial. The decision is

discretionary and the scope for appellate intervention is correspondingly limited. In exercising this discretion, however, the trial judge should balance the interests of the plaintiff, the interests of the defendant and the interests of the administration of justice in the orderly processing of civil trials on their merits. In any particular case several considerations may bear on these interests.

A trial judge who fails to take account of relevant considerations may exercise his or her discretion unreasonably and if, as a result, the decision is contrary to the interests of justice, an appellate court is justified in intervening. In my opinion, that is the case here. [Emphasis added.] 18. I begin with the overriding goal of our modern Rules of Civil Procedure: to ensure as far as possible that cases are resolved on their merits. This goal is expressly set out in Rule 2.01(1)(a), which gives a judge power to grant any relief necessary "to secure the just determination of the real matters in dispute".

Courts should not be too quick to deprive litigants of a decision on the merits. The trial judge does not appear to have sufficiently taken into account that his order deprived the parties, especially the appellant, of a determination of "the real matters in dispute." [ 32 ] In deciding whether, in a particular case, an adjournment should be granted, a judge will obviously be heavily influenced by the specific facts of the particular case. [ 33 ] This trial judge made it clear that she understood the limits on a judge ’ s discretion in the matter of adjournments.

She specifically noted that some facts - such as the hospitalization of the mother - would require the granting of an adjournment.

Therefore, she understood that the granting of an adjournment was determined judicially, not whimsically. [ 34 ] Here, in coming to the conclusion that she would not grant an adjournment, the trial judge was clearly influenced by two types of fact: the evidence of the mother ’ s long track record of not keeping scheduled appointments set to deal with the children ’ s best interests and the lengthy delay in making a decision about the children ’ s guardianship coupled with the evidence about the effect on the children of not having a reliable parenting structure. [ 35 ] The trial judge had no information from the appellant, through her lawyer, about the reason why she was unable to attend the trial at 9:30 a.m. on the Friday, the 5 th and last day of trial.

Indeed, no information was ever provided to the trial judge about why the mother didn ’ t attend court when she knew she should have and when she was in communication with her trial lawyer. The mother ’ s failure to explain her non-attendance was particularly disturbing when the trial judge had a good deal of evidence about the mother ’ s failure to attend, over the years, at many scheduled meetings, tests, and visitations all dealing with the best interests of her children.

In those circumstances, there was no assurance that the mother would appear to finish off the trial. [ 36 ] The second type of fact which undoubtedly influenced the trial judge ’ s decision not to grant an adjournment was the effect of the mother ’ s inability to carry through with plans implementing the children ’ s best interests as displayed by her failure to attend for scheduled visitations, etc: see, as just one example, the evidence of the witness Hagenimana at p. 119 A.B.

Since the apprehension had taken place in the Fall of 2010, the trial judge was aware that the children would be facing this painful and de-stabilizing uncertainty relative to their mother ’ s involvement in their lives for approximately 1 ½ years, which is a very long time in the development of a teen and a nearly teen. [ 37 ] Also, although it is not one of the major concerns expressed by the trial judge, that judge was also aware of the lengthy delays that are necessitated by the crowded Provincial Court schedule.

Here, the trial which was originally scheduled to commence in August 2011 had to be put over to March 2012 when the father of the older child requested an adjournment to obtain legal assistance.

If the March 2012 trial had to be adjourned to find an additional 2 or 3 days for completion, it is possible that a further long delay would be imposed on the children. [ 38 ] Finally, although this was a trial, and the trial of an application for a permanent guardianship order, the trial judge, who is a very experienced judge in family matters, would have been aware that even a permanent guardianship order, once granted, can be terminated: see s. 35 of the statute.

This is potentially important in situations such as the one here where the children who are the subject of the order are relatively old (indeed in the case of the older child, a pgo order could not have been made without his consent) and are placed, at least with respect to one child, in an extended family situation and, in respect of the other, in a placement that may lead eventually to a return of a placement with an extended family member with access rights to the guardians.

In other words, the denial of an adjournment of the trial must be assessed not only in light of the access order granted by the trial judge to the mother and the father/step- father, but also in light of the current placement of the children and also in light of the overall legal structure allows the Director to terminate the pgo and return the children to the mother if the Director became convinced that the Director did not need to retain custody

and guardianship of the children. [ 39 ] In applying the principles of granting adjournments to the facts here, did the trial judge commit a palpable and over-riding error? In my view she did not. The circumstances here called for the application of discretion; indeed, it is likely that the Director would have been unable to successfully appeal a decision to grant an adjournment, just as the mother cannot successfully appeal the trial judge ’ s actual decision to deny an adjournment.

In exercising her discretion, the trial judge obviously took into account the mother ’ s interests, but also the interests of the children and the interests of the justice system. She committed no error. 4. Supervision order [ 40 ] The appellant states that the trial judge committed an error of law when she stated: And by return I refer to the provisions of

section 18 of the Act which requires that for a return to be effected the children must no longer be in need of intervention, The error alleged is that the governing statute provides, in s. 16, that children who are in need of intervention can be returned to a guardian ’ s care while the guardian is subject to a supervision order and that, in failing to consider that possibility, the trial judge committed an error of law. [ 41 ] I agree with the appellant that the question of whether the judge erred in making the statement cited above is a question of law which must be reviewed on the standard of correctness. [ 42 ] With respect, I am of the view that the trial judge made no error in the above-noted statement.

On the contrary, the trial judge correctly underlined the very high threshold imposed by the Legislature on the Director when the Director is asking for a permanent guardianship order: the trial judge is correct when she states that s. 18 of the Act requires the judge to be satisfied that the children cannot be returned to the guardian, either at all, or within a reasonable period of time. In making the statement quoted above, the trial judge was merely re-phrasing the requirements of s. 18 of the statute.

The judge might have added that s. 18 required her to be satisfied, among other matters, that a supervision order would not appropriate, but there was no requirement for her to state the law in that way, especially when the Legislature itself did not phrase the obligation under s. 18 in reference to s. 16 of the Act. In

summary on this point, in commenting upon her role at the hearing, the trial judge said no more, and no less, than what the statute itself says. [ 43 ] Moreover, it is important to note that none of the arguments before the trial judge even suggested that these particular children could be returned to this mother under a supervision order.

On the contrary, the mother ’ s lawyer only suggested that the appellant ’ s daughter might become the subject of a tgo, see A.B. p. 452, l. 13 and p. 453, l. 20. and that the appellant ’ s son might not even be eligible for a tgo because of the amount of time that he has already spent in the Director ’ s care, see A.B. p. 452, l. 23. In their reasons for decision, trial judges don ’ t have to address each and every legal ramification of any statute under which they are proceeding; they only have to address the issues raised by the evidence and by the parties.

Here, both the evidence and the parties made it clear that the only possible alternative to the granting of the pgo was the granting of a tgo, and even that possibility was highly questioned in relation to the appellant ’ s son. There was absolutely no consideration given by anyone to the making of a supervision order because the needs of the children, the track record of the mother, the position of the father/step-father who endorsed the granting of a pgo and the placement with the extended family all made any such comment unnecessary. [ 44 ] In

summary on this issue, the trial judge did not make any error of law in stating her obligation under the statute. 5. Costs [ 45 ] If the parties are not agreed on costs, I may be spoken to within 60 days of the release of this decision. Heard on the 14 th day of September, 2012.

Dated at the City of Edmonton, Alberta this 20 th day of September, 2012. J.B. Veit J.C.Q.B.A. Appearances: April C. Kellett for the Appellant Denise Harwardt, Alberta Justice, Social Enhancement Legal Team for the Respondent Director Leslie Sax, Sax Law for the Children Appendix A Reasons for Judgment THE COURT: Okay. All right, well it is now 2:31 and I have no inclination to extend any further courtesies to Ms. L.

As much as I appreciate the severity of the situation and the nature of the application, I think that she has been extended absolutely every courtesy possible throughout the duration of this trial, even arriving late yesterday and I cannot remember if the day before, but it is 2:32. If we were to get her here in the next few minutes and settle her in we would be starting evidence probably at 3:00 at this rate; I am just not inclined to wait any further.

So I am prepared to deliver my decision, and I can tell you that my decision is this, that I am granting the Director ’ s application for permanent guardianship concerning both children; S. aged 13 and D. aged 10 years. This trial commenced on March the 12th, 2012, and started with a B.N. application concerning the two fathers, S.C. who in August of 2011, I was informed asked for an adjournment of the trial at that date so that he could retain counsel and participate in the proceedings. Today I learned through the submissions of Ms. Sax that it was actually Ms.

L. who, having failed in her request to have the August 2011 trial adjourned, secured the attendance of Mr. C. so that he could make an application. In any case, I determined to proceed in the absence of Mr. C. as he has had essentially no involvement with his sons or Children ’ s Services or the court proceedings.

With respect to A.C. he is represented by counsel, Mr. Neufeld, who has periodically attended throughout the course of the week and is present this afternoon, but Mr. C. himself indicated at the start through his counsel that he would not be participating in the proceedings but that he understood the trial would proceed, and his position was that he was consenting to the order for permanent guardianship. That having been said, he later did come to testify in the trial and did so on day three of the proceedings. Ms. L. has been present and represented by counsel, Ms. Kirk.

She has participated in this trial on each of the first four days and then in a rather unusual twist, having commenced her examination in chief yesterday afternoon, she has not attended this morning or today and it is, as I say, now past 2:30 in the afternoon on the last day of the trial and she has neither finished her examination in chief nor presented herself for cross-examination. I have a few comments to make about that. I have been apprised in closing submissions that Ms.

L. had first requested that the trial of this matter, previously set for October of 2009, be adjourned when she presented on that occasion with a doctor ’ s note saying she was not able to sit through trial proceedings. That trial was then adjourned to February the 5th, 2010, at which point she fired her lawyer and the matter was rescheduled for August the 10th, 2011, when I have described already in my previous comments about that matter having been adjourned ostensibly at the request of S.C. father of S. With all of that history and with Ms.

L. ’ s failure to attend today, notwithstanding my direction that messages be sent both to her at her cell phone as well as to Mr. A.C. ’ s residence by his counsel, and I understand that messages were left at voice mails for each of them, each of Ms. L. and Mr. C., neither party is present. And Ms. L. notwithstanding my being informed at two o ’ clock when we opened for the afternoon session that she was en route, is still not here. Given the history on this file and the exceedingly long time in care, while upon learning that Ms.

L. was not here this morning, I might ordinarily have been persuaded to hear an application for an adjournment, today I did not even give counsel an opportunity to make submissions, and I would be remiss if I did not make a remark about that. And the reason that I did not do so is because of the history on this file and the prior adjournments, and what I come to conclude is an attempt by Ms. L. to forestall this matter and the decision that I have made.

I made that direction in the context, as I say, of what I have heard in the evidence the last four days, and having regard for my limited assessment that I have been able to make of Ms. L. in her testimony yesterday. The determination I come to from a procedural standpoint and a substantive standpoint is that this matter cries out for finality. Ms. L. good afternoon. MS. L.: Hi. THE COURT: It is 2:37, have a seat. I have already made my decision. MS. L.: Okay. THE COURT: I am giving my reasons. You can stay. MS. L.: No thank you.

THE COURT: As I was saying, the determination I come to from a procedural standpoint and a substantive standpoint is that this mailer cries out for finality. In turning to the provisions of the Child, Youth and Family Enhancement Act I am aware that

section 2 of the Act mandates that families and family reunification be supported, that families are seen as the principle unit of our societal structure and, as such, it is a goal that when there is state intervention, supports be effected to address the protection concerns and then secure the return of children to parental care. It is never an issue of whether there is someone else out there who could better parent a particular child, rather it is an issue of identifying the concerns and working with parents to alleviate those concerns in order to effect return to

parental care in a timely fashion. By the time we arrive at a permanent guardianship trial, matters, it can be assumed, are very serious. In applying for permanent guardianship, the Director advances the position that we have moved to a place of no return, and that there is no real hope left of returning children to parental care.

Of course, arriving at that place or point in time is aided by the provisions of the legislation which prescribes time limits about how much time children can remain in care, maintaining the hope of being returned to their parents before the Director must apply for permanent guardianship.

And these time periods are prescribed, of course, because while a child may never give up hope of returning to their parents, the state also recognizes that in certain instances some parents may never be able to successfully parent their children, such that we must then look to the child ’ s right to have stability in their lives, stability which can only be achieved by ending the false hope of returning to parental care, and fostering instead stability of some other suitable placement. Arriving at this point is sad and difficult for all, most especially for children and their parents.

Granting an order of permanent guardianship is not done lightly. I recognize and accept that the burden appropriately rests with the Director to establish to a high standard of probability that the children, in this case S. and D. cannot be returned to parental care within a reasonable period of time; parental care in this instance meaning to the care of Ms. L.; S. ’ s father S.C. having been excluded and D. ’ s father A.C. having consented to the order. And by return I refer to the provisions of

section 18 of the Act which requires that for a return to be effected the children must no longer be in need of intervention, and I must be satisfied that their survival, security or development can be adequately protected by their mother in this case. In hearing the evidence in this trial I am satisfied that Ms. L. loves her children and that her children love her. That is not in dispute by any of the parties that I heard. I am also satisfied that in short confined periods and most especially in supervised visits, that Ms. L. is able to appropriately interact with her children. The workers, both Ms.

LaFayette and in particular Ms. Beaton, the family support worker, testified that Ms. L. demonstrates understanding of parenting strategies, that she knows and understands her role and her responsibility. Sadly, where Ms. L. appears to fall short is with respect to implementation and follow through of her parental obligations. The history I heard for both S. and D. is extremely sad to me and very concerning. 13-year old S. has been described by his mother as being difficult to handle from about the age of two years, which is when she first started to leave him with alternative care givers.

I heard of . . . the Portuguese lady, her friend. . . ., and my understanding and impression is that there were lengthy periods of time [the mother ’ s friend], in particular, I would understand had the care of S. for some two year period. None of these people were called to testify. Ms. L., sadly, did not give an opportunity to be cross-examined about the periods of time when these various care givers had S. in their care. And I have only her examination in chief in part about using sitters when she was working.

And as she described those periods, to me, it was very unclear about what time frame she was referring to, what her hours of work and shift work were, and which care givers were providing the babysitting or extended care at any of those given times. Ms. L. first had what I will call S., “ labelled ” as having behavioural issues at about, I believe, the age of three. She began at that time asking for help with his behaviours, and as Ms. Kirk submitted to me in argument, and I would concede that would be the right thing to do if one has a child who appears to be exhibiting difficult and concerning behaviours.

Except that when we contrast Ms. L. ’ s experiences with S. with the experiences of others who have had care of him, for example, the grandparents, S.F. and R.G., the group home providers, their experiences appear drastically different.

Rather than a picture of a raging boy, -who at age three, could hurl a three-drawer dresser across a room, and a toddler who needed to be kept at a safe distance from his baby sister, according to her mother ’ s description, I have heard S. described as a wonderful boy and a terrific kid, something that is not often said of a 13-year old boy residing in a group home, especially given his history.

And rather than a boy with ADHD, OCD and ODD and other diagnoses, as per his mother ’ s description, and one in need of special behavioural classes at school, I have heard it told now, and I believe that it has been confirmed through his psychiatrist Dr. Carroll, that S. suffers only from ADHD, and is attending a regular school program as per the evidence of the group home worker who testified on the first day of the trial. In what I consider to be an extremely telling remark by Ms.

L. in her examination in chief yesterday I heard her to say this: That she needed to show Children Services how high S. ’ s needs were in order to get FCSD so she could get respite. I found that telling, because to me that suggests a mother whose orientation is to suggest that she needs help to parent her child, and she will endeavour to secure the diagnoses required to see that she gets that assistance. I found the statement startling and revealing as well as informative about Ms. L. ’ s possible mind set of her son.

Now, of course, I am not a mind reader and I did not have the benefit in this trial of a parenting assessment for Ms. L., so I want to be careful about the conclusions I draw about her. However, what I also find instructive is what I do not know about her. I do not know her exact academic record. I heard her verbal description and reference to various certificates and programs she was enrolled in and completed, but I saw no substantiating documents. I did not receive a time line, I do not know where she went, exactly what she got in terms of training.

I heard of a life skills program that she then was able to instruct, I heard no mention of where she received that training or whether she has ever been called upon to instruct anyone in life skills. And given the history and my assessment of her yesterday in examination in chief, I would put very little weight on

that assessment and her academic credentials. I know very little about her employment record. I found her account of her past employment to be disjointed and confusing to follow. She made reference to having worked at Hy ’ s for 11 years, having been employed continuously since the age of 14, maintaining two jobs at once. There was no reference to dates or periods of time, or when she was last employed, for that matter, and what her current employment abilities are or lack thereof.

With respect to her medical history I heard her describe having been involved in 12 motor vehicle accidents, and various diagnoses from everything from multiple sclerosis which was diagnosed and then discounted, fibryomyalgia, arthritic or rheumatoid arthritis type disability, but I was given no substantiating documentation, nothing from her treating physician. Again just a rambling account of various diagnoses with no records produced to substantiate what diagnoses she has or what medication she would be taking to deal with any of those.

She has not been working with the Director or family support worker for, I believe my memory is correct, in the last year or so, or she worked somewhat in the fall with the FIG worker, but that relationship ended in December of 2011, I recall that. But of her own initiative she has been going to a pain clinic, which is laudable, the difficulty is I do not know for what reason, on whose direction, what is her status, what is her current diagnosis, what medication is she taking, what is the effect of that medication, what is it that we are trying to achieve with here.

I heard of her history of incarceration in drug trafficking. I heard her testify that she relapsed, but I was not given an opportunity to discover when she relapsed or if she relapsed on more than one occasion, and what is she relapsing from, is it from street drugs, is it from prescription medication; I do not know what her current prescription drug use is. I noted that there was reference to a urine test but those only were positive for opiates in the court reports.

And when it was drawn to her attention by me that there were positive findings, she was dismissive of those findings because they were drugs that were prescribed. The question I would have is for what, for how long has she been on these medications, what is the effect on her function, especially because of the events of the most recent apprehensions? She described having suffered with the flu and being incapacitated on the evening prior to the apprehension. I heard it described that she was not able to be roused.

I am not satisfied that I have enough evidence to say that it was because of the flu, I do not know whether she had taken prescription medication, been over-medicated or what it was exactly that she was suffering from on that occasion. I heard her describe her constant persistent requests for supports from the Director of Children ’ s Services and a complaint of a lack of those resources being provided to her. The questions that I have not had answered from Ms. L. is what about her own personal supports, where are her friends, where is Judy and Shelley and Jennifer C.?

I heard about her on and off again relationship with her mother and step-father. It raises a concern for me that she perhaps has difficulty with interpersonal relationships but I cannot even reach that conclusion because I have not heard all of her evidence. Having had the benefit of having only part of Ms. L. ’ s examination in chief, I can say that I found her testimony to be confusing, rambling, random and scattered as to time, sequence and detail. With all of that said, I can only imagine the confusion in the lives of these children. S. has over four years of care with the Director, formally speaking.

In the last five years he has had only some 159 days- as was counted by Ms. Sax- with his mother. Prior to that he has been in the “ informal ” care of others, for what I understand to be substantial or significant periods of time and having been placed there by his mother, which raises a concern for me as to possible sources of S. ’ s angst and anger in his formative years, but I will not speculate about that.

D. has had less time in care only, and I say “ only ” with some emphasis, 578 days, being mindful of the fact that that is a very substantial period of time, and being mindful of the fact that she is three years younger than her brother. The events of her apprehension, in both 2008 and 2010, are extremely concerning. Having heard Ms.

L. ’ s account of the 2008 apprehension I conclude that her attendance at a shelter with D. on the allegation of abuse by A.C, was most likely a pre-emptive measure aimed at diverting attention away from her alleged IV cocaine use at that time, otherwise, what am I left to conclude about her present resumption of co-habitation with Mr. C.? This is a woman who describes in 2008 being so afraid of Mr. [A.]C. that she attended for a restraining order, or emergency protection order, and had to go to a shelter, and now she has resumed co-habitation with him, although I do not know the extent of it.

Her account of the events surrounding the October 29, 2010 current apprehension, I found equally implausible. The children had been returned to her on September 24, 2010 under a supervision order. The first term of that order was that she registers in school. And to the date of the apprehension, one month later on October 29th, she still had not secured his registration or attendance at school. She says it was because of the Director ’ s confused instructions about where he should go and what program. The only thing I found confusing about the issue was Ms. L. ’ s account and understanding of it.

She had D. in her care. D. was going to school, period. S., she was looking busily for a special needs program for him, and despite her repeated assertions that it is not for her to determine what program her child would be in, that is exactly what she purported to do, otherwise she could have acceded to the recommendations of her case worker to register him in the school across the street or nearby where she was living, and left it for them to make that determination. Instead, the child did not go to school for the entire month of October. On the evening prior to the apprehension, reports are that Ms.

L. was not able to be roused so D. called the doctor ’ s office, leading to police being called and Children ’ s Services eventually apprehending the next day. The conclusion I thaw about the four to five weeks that the children had while in their mother ’ s care under the supervision order or following the supervision order, is of whiling away the time with nothing constructive or productive happening in these children ’ s lives. Since the apprehension, Ms.

L. was assigned a new family support worker, Jerome, sorry, a FIG worker in this instance, a family intervention generalist as I understand that acronym to mean. She herself having discontinued the relationship with Ms. Beaton the year prior, notwithstanding and I want to make mention of the fact that I found Ms. Beaton ’ s evidence to be very credible and honest and forthright, and I heard it very loud and clear that she was a strong advocate and very much in support of Ms.

L., and offered a lot of support by way of finding her a residence, helping her physically, helping her move, physically helping her look for documents to file her tax returns, and yet Ms. L. withdrew from that relationship, interestingly. Jerome, the FIG worker, in September of 2011, commenced working with this family and started about busily trying to establish housing for Ms. L., but then he lost touch with her in December. And then, surprisingly, at the start of this trial we are all informed that Ms.

L. did not need to find a residence on her own because she had resumed co-habitating with A.C, the man from whom she had fled to a shelter in 2008. I know nothing about the relationship at this time between A.C. and Ms.

L., I do not know whether it is an intimate relationship, I do not know the stability of that relationship, I do not know the nature of the relationship, I do not know if there are dynamics or issues of -- that are -- well, I cannot compare them to historical context because I do not have a good measure of what the historical context is, other than the reported domestic dispute in 2008 and some other general comments about the volatility of the relationship. So at the end of the day I am left with extremely serious concerns about Ms.

L. ’ s status, her mental, emotional and social status, as well as her functioning. And I have to make mention of the fact that, notwithstanding the fact that she has been represented by counsel, who I should say when pressed to make closing submissions in a trial with her client absent and not completing her testimony, I want to say made some very compelling arguments on behalf of a client who was not here. And for reasons that have not been disclosed to the Court, Ms.

L. flew into the courtroom at 2:37 after I had given my pronouncement of granting the Director ’ s application, and left without informing me of anything or asking what my decision was. So all of that said and with 1166 days and 578 days, respectively, in care, I am overwhelmingly satisfied that there continue to be serious protection concerns, and I cannot, in any way, conclude that these children could be returned to Ms. L. ’ s within the next six months, most especially given the demonstration that I witnessed this afternoon and her absenting herself from the proceedings today.

The supervision order of September 2010 can be viewed as the trial run, and what has happened in the intervening time is unknown to a large extent. Ms. Kirk says that it is because her client has taken the time to better her health and her status and her situation, but I have nothing to measure that. First of all, I have no measure of what that is today, because we did not complete her testimony and she has not produced and -- there was no witness, Dr. Borkent was not called, the physician who has had her care and probably has the most information about what prescriptions or conditions Ms. L. has suffered from.

The pain clinic people, there were no documents tendered, and I have no historical context for what that was, other than that she has an assortment of ailments. And the underlying flaw with Ms. L. in the words of her, what I would term her best witness or most favourable advocate in Ms. Beaton, is recognition that she has the tools, knows what the responsibilities and obligations of a parent are, but she has the apparent inability to parent consistently over the children ’ s lives or at least until adulthood. That is what I heard Ms.

Beaton to say, and I am paraphrasing, and I am satisfied that that is an accurate description. In controlled, short periods, Ms. L. probably can interact appropriately with her children, but I am satisfied well beyond the standard of proof that rests with the Director, that she cannot parent these children for a prolonged period and that she could not do so within the next six months, and as such my order is made.

MS. HARWARDT: Ma ’ am, first of all I would ask -- THE COURT: Oh, sorry, access. MS. HARWARDT: -- that you put on the record the fact that Ms. L. did arrive approximately 2:35, and certainly from my brief view of her there did not appear to be any health reasons -- THE COURT: Thank you, Ms. Harwardt, for pointing that out, because she did come in, walking with a more upright and a more directed gait than I have seen her in the preceding week. There was no limp perceptible, and particularly when she stormed away from the courtroom and out of the doors she was practically galloping. So thank you for reminding me.

MS. HARWARDT: Thank you. And then finally I would ask the Court to order that there be reasonable access to both J.L. and A.C. to both children -- THE COURT: Yes. MS. HARWARDT: - - supervised in the discretion of the Director? THE COURT: Yes, so ordered. (Emphasis added)