RS Appellant - v. -, 2012 ABQB 715

Court of Queen ’ s Bench of Alberta Citation: RS v Alberta (Child, Youth and Family Enhancement Act, Director), 2012 ABQB 715 Date: 20121126 Docket: FL01 13461 Registry: Calgary Between: RS Appellant - and - The Director of Child, Youth and Family Enhancement Act Respondent - and - Counsel for the Children Third Party 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. Corrected judgment: A corrigendum was issued on November 27, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C.S. Phillips

_______________________________________________________ Appeal from the whole of the Order by The Honourable Judge J.R. Shaw Dated the 13 th day of January, 2012 I. Introduction [ 1 ] This is an appeal of a Permanent Guardianship Order (“PGO”) granted in the Provincial Court of Alberta pursuant to s. 34 of the Child, Youth and Family Enhancement Act (the “ Act ”).

This order concerns two children presently aged ten and three, who I will refer to as CS and AS respectively. [ 2 ] At the trial, the Director called four witnesses, the father presented seven witnesses and testified for himself, and the mother testified on her own behalf and called one witness. After final argument on December 6, 2011, the trial judge granted the PGO, with written reasons to follow. Notice of appeal was served on December 20, 2011. The trial judge did not issue written reasons but provided his reasons orally on January 13, 2012. [ 3 ] The father is appealing the trial decision. II.

Facts, Evidence at Trial and Procedural History A. Background [ 4 ] The parents met and began a relationship in 1999 while the father (“RS”) was married with three children. Over the course of their decade long relationship, the mother (“LB”) gave birth to three children – CS, AS and the youngest child who was born and put up for adoption shortly before the trial. Though paternity was questioned at trial, the evidence was that RS accepts both CS and AS as his own. [ 5 ] LB had a difficult upbringing. She was abused and began using drugs at a very young age.

She had turned to prostitution by the time she was a teenager. She has received addiction treatment on several occasions and at the time of trial had been sober for three months. [ 6 ] RS did not have the same history of drug and alcohol abuse, but he did use crack-cocaine with the mother for a period of almost two years while they lived together with their oldest child. RS stated at trial that he had not used drugs for three years, and the Director expressed no concerns about drug and alcohol use on his part. [ 7 ] The oldest child, CS, has been in and out of care for most of his life.

He has had three foster placements and had been in his current placement for over one year at the start of trial. His current foster parents do not plan to adopt him. Under a PGO, he would be moved into a new permanent home. [ 8 ] CS was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) in May 2010 and may also suffer from Fetal Alcohol Spectrum Disorder (“FASD”). He has also been diagnosed with a neurobehavioural disorder (alcohol exposed).

[ 9 ] The youngest child, AS, had also spent over one year in care at the start of the trial, all at the same foster placement. She is still too young to be tested for ADHD or FASD, but the mother admitted at trial that she used drugs while pregnant, so there is a likelihood of a similar diagnosis. [ 10 ] The Director had been involved with this family in both British Columbia and Alberta for almost nine years at the time of trial.

This involvement has included 11 screenings, seven investigations, one support agreement, one supervision order, and one temporary guardianship order (“TGO”) prior to the Director’s current application. B. The First Time in Care: September 2004 - November 2005 [ 11 ] CS was first taken into foster care in 2004 when LB determined that she could no longer properly care for him due to the extent of her drug use. She decided that he should be placed in foster care in Dawson Creek, British Columbia where she had once been a foster child as well.

This was meant to be a short term situation. [ 12 ] Close to sixteen months later, when Child Services indicated that they would become more intrusive and seek a PGO, the mother sought to give custody of CS to the father, RS, who had been living with his then-wife when CS was first taken into care. The Provincial Court of British Columbia granted a consent order giving RS guardianship and sole custody of CS on November 30, 2005. This order did not place any restrictions on LB’s access to CS, nor did it contain any other terms. [ 13 ] The father moved CS back to Calgary.

He and LB established an arrangement where she would look after CS whenever RS had to leave the house for work. Sometime after RS brought CS back to Calgary, he and LB began using drugs together. During this period, AS was born. RS eventually ceased using drugs but LB did not. Also during this period, RS went bankrupt. The family eventually began renting a home through a church charity. One of the requirements to rent the home was that both RS and LB have their names included on the lease. [ 14 ] On December 24, 2009, RS called Child and Family Services because the extent of LB’s drug use caused him concern.

In particular, LB would leave the home for periods of days to use drugs. She would then return to wait for a social assistance cheque to arrive before leaving again. [ 15 ] In early February 2010, police were called to the house to respond to a conflict between the parents. RS had put LB’s belongings onto the porch and did not want her back in the house. LB kicked through the door. The police report indicates that the house was clean, the children were clean and comfortable and there was no immediate concern for the safety of the children.

Nevertheless, the parent’s relationship was at this point clearly toxic. [ 16 ] Following RS’s December 24, 2009 phone call and the incident at the home, Child and Family Services became involved with the family and by mid-February 2010 recommended a supervision order. Both parents consented to the order. C.

Supervision Order: February 2010 [ 17 ] The evidence provided at trial was that the supervision order stipulated that there be no domestic violence or drug use in the home and that the parents not be under the influence of drugs in front of the children. [ 18 ] The supervision order also recommended that RS attend parenting classes. In his testimony he explains that no resources were offered to refer him to particular classes. He sought one out on his own but it was specific to AS’s age, and not CS.

RS eventually found the Awo Taan Healing Lodge Parent Link Centre, where he was able to receive more information relevant to CS. The current caseworker confirmed at trial that she had only given RS information about an ADHD specific parenting class on the day of trial.

[ 19 ] During the period of the supervision order, LB would leave and return to the home, was using drugs and claimed to RS that she supported herself by working for drug dealers. RS also knew that she had previously supported herself through prostitution. When she would leave the house, occasionally she would be returned to the home accompanied by a social worker. LB also attended and completed a rehabilitation program during this period. RS never notified Child and Family Services of these issues.

He did eventually take the initiative to remove LB’s name from the lease of the home when his original lease expired in the fall of 2010, after being advised by case workers that he needed to stay apart from LB. D. Restraining Order: June 29, 2010 [ 20 ] In June 2010, LB returned to the home after a period of off-and-on drug use followed by rehabilitation. On June 8, 2010, she and RS had an argument in front of the children about CS not finishing his breakfast, which culminated in RS handing some form of paperwork to LB, possibly a parenting order, followed by LB slapping RS.

RS testified that LB self-reported her violence against RS to Child and Family Services as a breach of the supervision order. [ 21 ] On June 29, 2010, RS obtained a restraining order against LB in order to comply with the terms of the supervision order and to keep LB out of the house. However, he allowed the restraining order to lapse and according to witnesses at trial allowed her back into the home. E.

The Temporary Guardianship Order: July 2010 [ 22 ] Due to the breaches of the supervision order, the Director apprehended the children and applied for a temporary guardianship order, which was granted on July 28, 2010. [ 23 ] The children were placed in foster care separately. They had visits with their parents together. Initially, the visits were scheduled in such a way that the parents’ time with their children would overlap and were held in the father’s home, though the Director later separated the parents’ visits with the children. F.

Parenting Capacity Assessment Report: January 20, 2011 [ 24 ] The Director asked social worker Debra Harland to prepare a parenting capacity assessment report in January 2011. She met with RS five times and observed him interact with the children once. In her report, she recommended that the children not be returned to either parent.

She recommended that the Director take steps toward a permanent placement for the children, and that CS be referred to counselling to address his issues with regard to attachment and placement disruption, anxiety, exposure to domestic disharmony, neglect, physical abuse and fire starting. [ 25 ] She recorded several concerns in her report that led her to this final determination. In particular, she noted that CS had made disclosures to case workers that his father put his hand over a stove, which he said was “scary”, and that RS would spank him and hit him as a form of discipline.

She also noted incidents of RS teasing, bullying or ignoring CS during supervised visits. She describes RS as having poor boundaries with LB and being unable to protect the children from the chaos that ensues when LB relapses. She also describes RS as minimizing problems, including his responsibility for Child and Family Service’s involvement with the family. G.

Parenting Report: November 2011 [ 26 ] In fall 2011, RS met with social worker Evelyn Wotherspoon, who prepared a second parenting report outlining her observations of him with the children. [ 27 ] She observed RS with the children three times and noted that these interactions were very positive, though he still had some

weaknesses to improve. She found that he was eager to take feedback and was able to incorporate it into his behaviours and improve his skills. RS also did not show any signs of favouritism of AS over CS, as had been noted in prior visit reports. He did not tease CS, and instead she observed him being supportive of CS. She noted that any parent would need supports in place for the transition of children back into the home from foster care and for raising children with special needs.

She also noted that CS is at significant risk for behavioural and emotional problems as he grows up and will need an exceptional parent. Finally, she echoed Ms. Harland’s concern about LB, though at the time of her interaction with RS, he claimed to have no contact with the mother, LB, anymore. H. The Trial [ 28 ] The Director initially sought a PGO, but later changed its application to a consent TGO application because of the father’s improved parenting.

Counsel for the Director stated at the commencement of the trial, “it’s the Director’s view that father has made some positive steps. [...] he has shown a real interest in properly parenting, properly providing for the two children. With that in mind, Sir, we would like to give the father one last chance, as it were.” [ 29 ] The Director sought a TGO, which would include among other things, therapeutic access to assist the father to improve his parenting and age appropriate parenting courses, including courses that specifically address ADHD and FASD.

One of the Director's primary concerns was the volatility that results when the mother and father are together, so the TGO would also include a requirement that the father not have contact with LB. [ 30 ] At the commencement of the proceedings on November 28, 2011, the Court was not satisfied that the joint proposal for a TGO was in the best interests of the children, raising its concern that the matter would simply return to the Courts in the same position in a matter of months. The trial judge therefore ordered that the matter proceed as a PGO trial.

Though the Director had initially sought a consent TGO, when the Director learned on the second day of trial about a recent sexual intimate encounter between the parents in October 2011, the Director withdrew their consent to the TGO and changed their application to a PGO. Both parents indicated at trial that this encounter was not a reconciliation. I. The Evidence at Trial [ 31 ] The trial proceeded over six days with a total of 14 witnesses called.

I will now review the evidence from each witness in an order that reflects the chronology of events leading to this trial, beginning with the parents’ testimony, as it is important to determine and understand how the proceedings changed from a consent TGO application to the Director seeking a PGO. [ 32 ] During LB’s testimony, she explained her on again off again relationship with RS. She acknowledged that they had an intimate encounter on October 30, 2011 when she asked him to meet her to sign adoption documents for their third child.

She also indicated that she calls RS everyday, and they speak for a few minutes about the children. She always initiates contact, but he has not asked her to stop calling. She clarified that the physical violence between them was largely by her towards him but that they are emotionally abusive to each other. She felt that he would be a good parent to AS, and that with supports in place, she agreed that he could be a good parent to CS.

While she did say that if he had the kids she would want to visit and was “not going to be far away,” she also said in response to a question from the Court that she would only seek to visit if it was permitted by the Court. [ 33 ] LB also called her program manager from Servants Anonymous, Elizabeth Gibson, who testified primarily as to the mother’s progress in remaining sober throughout a stressful period of time. It was Ms.

Gibson who first raised the evidence of the October 30, 2011 sexual encounter between the parents. [ 34 ] The father, RS, during his testimony, discussed his relationship with LB and his understanding of Child and Family Service's involvement. He conceded that he and LB had been in contact and had intimate relations, though it was evident that he had not revealed this to his case worker or Ms. Wotherspoon. He was aware that LB brought chaos into the home and that caused stress to the children.

He denied that they were in a relationship despite their contact and claimed to be trying for the last two years to separate himself from her, though unsuccessfully. [ 35 ] RS explained his perceived favouritism of AS in visit reports as stemming from the fact that as a baby, AS needed more

attention. He also sought to explain the incidents of alleged physical abuse toward his son CS. He admitted to spanking CS but stated that he would only do so as a last resort, and recognized that this form of discipline caused arguments between him and LB. He denied putting CS’s hand over a stove flame, and claimed that other incidents were simply the result of him and his son, CS, joking around.

He says that he has a good relationship with both children, but he could stand to improve his relationship with CS. [ 36 ] The father also called three witnesses to speak about his parenting skills and his relationships with CS and AS during the time before the children were apprehended. [ 37 ] RS called his oldest daughter, who spoke about growing up in his care. She described him as a good father and said she had a happy childhood. She did say that she was spanked but discipline usually was a timeout and an explanation of what she did wrong. RS was able to notice if she was upset and would comfort her.

RS also called his sister who similarly referred to him as a good father. She had seen him interact with AS and had been quite loving. She had not yet met CS, and had only learned of the children when AS was a few months old. She did not know about RS’s previous drug use. [ 38 ] A church volunteer also testified for RS. She met RS, LB and the children when they moved into the home rented by the church. She would go to the house for weekly visits and said she observed RS being a good father. She said that she never observed him favour AS.

She knew about LB’s drug use, but did not know that RS had used drugs previously or about any violence or arguing in the home. [ 39 ] The father also called two employees from Awo Taan Healing Lodge Parent Link Centre, one who worked primarily in child support and the other as a wellness worker. Both had worked with RS since June 2010. The first witness, Rachel Gallant, testified that she taught RS the Triple P parenting style and that they worked on programs for both children.

She also expressed that she did not understand the parents to have a romantic relationship anymore, despite the recent encounter, about which she was aware. [ 40 ] The second Awo Taan witness, James Sargent, attended Child and Family Services case management meetings with RS. He expressed that they were both confused by the directions given to RS with regard to LB. The case worker had indicated that RS should not have contact with LB, but then they were to have and did initially have joint visitation with the children in the father’s home. Mr.

Sargent also observed that the father struggled with the instruction to keep the mother out of the children’s lives. [ 41 ] Debra Harland was called by the Director as an expert in social work with a clinical specialization in child and family, and with a specific qualification for parenting capacity assessments. She testified as to her parenting report. In her testimony, she expressed that she felt that nothing had changed since that report, and she remained sceptical of the recent improvements in RS’s parenting of CS.

She also formed the opinion that the parents had a co-dependent relationship, which she suspected would continue if the children were returned to RS. [ 42 ] The Director also called Karen Uryhn, a child welfare worker, and the caseworker on this file from Mid-January 2011 until July 15, 2011. Her main concern was the relationship between RS and CS. She was also concerned about the relationship between the parents and its effect on the children and on LB. She suspected that the relationship between the parents would continue and RS would allow LB to see the children.

She agrees though that during her involvement, she encouraged RS to improve his ability to respond to CS’s emotional cues and needs. He was receptive and upon Ms. Uryhn’s prompting sought out additional counselling himself. RS was also receptive to attending domestic violence counselling and did so upon Ms. Uryhn’s encouragement. [ 43 ] The Director called Marlene O'Neill Laberge, an expert in children's mental health with a specialty in parent-child attachment. She had last seen RS and CS in July 2011.

At that time she noted that RS was not taking responsibility for his issues or his role in the Director's involvement, which he attributed to LB. She only observed RS with CS for one 45 minute session and qualified that, for this reason, her observations need to be considered in light of the other evidence. She observed that RS had a good interaction with CS when RS could take the lead, but he needed to learn how to let CS take the lead in their interactions too.

She concluded that the most important thing for CS at this time would be permanence, and if that means going back to RS, there will be a need for intensive services to help him better connect emotionally with CS. [ 44 ] Collette Oswald was called by the Director. She is a child welfare worker and the current case worker on this file. She had been on this file for four months at the time of trial, after taking it over from Ms. Uryhn.

[ 45 ] Ms. Oswald indicated that RS had been improving his parenting skills, and since June 2011, his monthly visit reports had been getting consistently better. There had been no incidents of physical discipline by RS during her involvement with the file. Nevertheless, she indicated that the Director had some ongoing concerns about his on again off again relationship with LB, his interactions with CS, which were improving but could be further improved through education about ADHD, and his tendency to minimize issues.

She did however indicate that RS acknowledged his prior poor judgment and had shown that he was capable of learning new skills and improving his parenting ability. Education about what to expect from a child with neurobehavioural damage and ADHD could further improve his relationship with his son. [ 46 ] Finally, Ms. Evelyn Wotherspoon was called as an expert witness by the father. She was qualified in the area of social work with a specialization in early childhood mental development and had observed four parent-child visits with RS, as opposed to one by Ms. Harland, the parenting assessor for the Director. Ms.

Wotherspoon testified about her November 2011 report and remarked that RS was improving his parenting skills. She only observed minor parenting errors where RS would miss some of CS’s cues. She indicated that this error is “typical of many parents.” Ms. Wotherspoon was concerned by the news that he had engaged with LB again, in particular because this showed a pattern of not being forthcoming with important information that would be critically important to case management and intervention planning.

But on the level of his direct interaction with his children, she suggested that his noted weaknesses could be improved with feedback or coaching. [ 47 ] It is worth nothing that throughout the trial it became evident from the witnesses that RS’s specific parenting concerns arose in his parenting of CS. Numerous witnesses including LB, Ms. Wotherspoon and Ms. Harland indicated that RS had a positive relationship with his daughter, AS. However, the Director’s general concerns regarding RS’s tumultuous and toxic relationship with LB and his ability to keep the children safe from LB pertained to both children. III.

The Legal Requirements for Granting a Permanent Guardianship Order [ 48 ] When hearing an application for a PGO under the Act , the Court must consider the requirements outlined in both s. 34(1) and s. 2: CB v Alberta (Director of Child Welfare) , 2007 ABQB 234 , 77 Alta L R (4th) 38 at para 93 [ CB ]; MT v Alberta (Director of Child Welfare) , 2005 ABCA 125 , 42 Alta LR (4th) 99 at para 20 [ MT ]. [ 49 ] Section 34(1) permits the Court to make a permanent guardianship order if it is satisfied that: (

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

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

c) it cannot be anticipated that the child could or should be returned to the custody of the child's guardian within a reasonable time. [ 50 ]

Section 2 provides guidelines for determining the best interests of the child: MT at para 20. Numerous considerations in s. 2 indicate that the rehabilitation of the family unit is in the best interests of the child: see ss. 2(a), 2(e), 2(f), 2(h), 2(j). This includes that the Director provide intervention services, where reasonably practicable, or refer the family to community resources that will support the family unit and prevent the need to remove a child from the family: ss. 2(e)(

i) and 2(h). [ 51 ] Justice Martin explains how these provisions work together in AD v Alberta (Director of Child, Youth & Family Services) , 2011 ABQB 577 , 59 Alta LR (5th) 1 at para 103 [ AD ]: A trial judge must read s. 34 and s. 2 together and must be satisfied that the evidence supports the conclusion that the child cannot or should not be returned within a reasonable amount of time.

Thus, a trial judge is obliged to consider the values found in s. 2 and ought to address whether a less disruptive measure may be appropriate, while still protecting the safety, security and development of the child. [ 52 ] The Act places the onus on the Director to prove that the children cannot and should not be returned to the father, RS, within a reasonable amount of time. When it can be anticipated that the children may be returned to their parent or guardian within a reasonable

time, the Act provides for a temporary guardianship order pursuant to s. 31(1). IV. Overview of the Trial Judge ’s Reasons [ 53 ] The trial judge discussed his decision about the PGO for the mother and father separately, so this review will refer specifically to the reasons relating to the father, as the mother has not appealed the trial decision. [ 54 ] In explaining his decision, the trial judge stated that he preferred Ms.

Harland's chronicling of events and the mother’s evidence over that of the father’s evidence wherever there was any conflict in the evidence. [ 55 ] The trial judge found that the father was not a forthright witness. He had tried to conceal his past drug use from Ms. Harland and other witnesses called on his behalf, including his sister.

The trial judge found the father to be secretive and deceitful about his drug use. [ 56 ] The trial judge refers to several concerns in his review of the evidence heard at trial, which in my view goes implicitly towards his finding the father was secretive, deceitful and unable to parent, and therefore, that the children could not be returned to RS in a reasonable time. [ 57 ] The trial judge notes that the father entered his relationship with LB while still in his former marriage, and refers to the father’s claim that he was unaware that LB used the house that he provided for LB when CS was very young, before CS was placed in care in British Columbia, as a crack house.

The trial judge also notes that the father had a heart attack in 2009, and did not present medical evidence as to his current health at the trial. When asked about his future plans for raising the children, the trial judge emphasizes RS’s unsatisfying response, that “that’s a good question.” RS indicated that he was considering looking for work in Fort McMurray. The trial judge then states: “His career came first, it always has.

Just as it did during the period of his first marriage. [RS] minimizes problems, blames others, and continues to show and exhibit poor judgement.” [ 58 ] The trial judge also refers to the mother's evidence that the father was abusive in his discipline toward CS and finds that the enmeshment between the father and mother is still current and toxic and is harmful to each parent and to the children, when the parents are together. The trial judge points out that Ms.

Wotherspoon, who testified on behalf of the father, confirmed that the father makes poor choices with regard to LB and would blame others and the trial judge found that CS and AS will need a skilled parent full-time, who can offer extra-ordinary care in light of their special needs. The trial judge states that the parents “can barely meet their own requirements let alone raise two special needs children [...]” and concluded that, given RS’s plans for the future, he would not fit this requirement of being that full-time skilled parent.

The trial judge also refers to the question of the children’s paternity when describing his concerns in this case. [ 59 ] The trial judge determined that adequate services were offered to both parents. However, he does not discuss which services he is referring to or how they fulfill the requirements of s. 2. The trial judge only refers to s. 2 to say that it, and the best interests of the children, were considered. [ 60 ] The trial judge briefly discusses s. 34 in determining that the parent's problems are historical, current and predictably ongoing and the children cannot wait.

He found that neither parent can parent special-needs children now or in the near future, and certainly not CS, who requires extra-ordinary care. Implicit in the trial judge’s reasons, therefore, is that it cannot be anticipated that the children could be returned to their parents within a reasonable time. Also implicit in the trial judge’s reasons is a suggestion that, given the parents’ long and unchanging dysfunctional history, they will not be able to stay apart, and it is not in the best interests of the children to be with either parent if this relationship between LB and RS continues.

The trial judge concludes that the children are entitled to the best that they can be offered now and thereupon grants a PGO. V. Issues on Appeal [ 61 ] The father, RS, raises five grounds of appeal

1. Did the trial judge err in law by failing to apply the correct test for granting a PGO, particularly with regard to the weight given to the s. 2 factors? 2. Did the trial judge err by failing to find that the Director's failure to provide services did not meet the legislative objectives of family reunification under the Act ? 3. Did the trial judge err in law by giving no reasons for judgment prior to the expiry of the appeal period? 4. Did the trial judge demonstrate an apprehension of bias by failing to accept the consent TGO? 5.

Did the trial judge err in law by giving a judgment prior to considering written submissions by one of the parties? VI. Standard of Review [ 62 ] An appellate Court will only interfere with a PGO where the trial judge has acted on a wrong principle or disregarded material evidence, or the decision is otherwise clearly wrong: see CB at para 56 and MT at para 24. VII.

Analysis Issues 1 and 2: Did the Trial Judge Apply the Correct Legal Test? [ 63 ] The appellant, RS, submits in his first two grounds of appeal that in granting a PGO, the trial judge did not properly apply the test set out in s. 34(1) and s. 2 of the Act . I will treat the appellant’s first two issues together because the Director's obligation to provide services is one of the factors that the Court must consider under s. 2. [ 64 ] As noted, pursuant to Act s. 34(1)(

c) and s. 2, the Court must consider whether the evidence shows that it can be anticipated that the children could or should be returned to RS, within a reasonable time, including with the provision of appropriate services. [ 65 ] The appellant, RS, essentially argues that the trial judge erred in granting the PGO without properly considering the evidence of his improved parenting skills, instead relying on a parenting capacity assessment that was a year old at the time of the trial.

He submits that expert evidence is only as good as the facts upon which it relies, and if those facts change, then the weight of the evidence should decrease. [ 66 ] The appellant, RS, also submits that the trial judge should have taken into consideration the evidence that he had not been offered services to assist him in parenting a child with special needs before deciding that he would not be able to parent CS and AS.

The appellant additionally argues that the trial judge placed too much weight on the sexual intimate encounter between the parents just before the trial, on October 30, 2011, when both parents indicated that this was not a reconciliation.

As a result, the trial judge failed to consider whether another less intrusive measure than a PGO might be possible. [ 67 ] In response, the Director and Counsel for the children submit that the trial judge properly considered the evidence before the Court, and that evidence properly supported an order for permanent guardianship. [ 68 ] The Director emphasizes that the witnesses, who spoke to RS’s more recent supervised visits reports, did not specifically recommend the return of the children.

Additionally, all of the experts expressed concern about the ongoing relationship between LB and RS, which was one of domestic disharmony. Also, the experts expressed concern about the October 30, 2011 intimate encounter between LB and RS. The Director considered it vital that, for any chance in parenting his children, the appellant RS would have to have no contact with the mother, LB.

The Director submitted that the appellant RS had lied repeatedly in this regard, and when he was caught doing so at trial, the Director felt it had no choice but to withdraw support for a TGO and proceed with asking the court to grant a PGO.

[ 69 ] The problem created by this disclosure of intimacy between RS and LB at trial was, as the Director points out, that all previous assurances and statements by the appellant RS that he was no longer seeing LB were now seriously questioned. Ultimately, the Director argues that this presents a concern that the appellant, RS, by not being honest and forthright on this issue, may not be forthcoming with information that would be critically important to the Director in effectively case managing and providing the necessary services required by this family. The appellant’s own witness, Ms.

Wotherspoon, spoke to RS’s poor judgment in this regard and its effect on his children’s development and mental health. In the result, the Director disputes that there was expert evidence supporting a return of the children to the appellant, as Ms. Wotherspoon’s testimony was as damaging as it was supportive. [ 70 ] Furthermore, the Director disputes that there was a failure to provide services and denies that the objectives of family reunification were not met. The Director points to addictions and counselling services that were provided to the parents as examples of the Director’s efforts in this regard.

On this, the Director’s position was that, as services were provided, concerns remained. In that regard, the parents’ intimate encounter and the non-disclosure of it prior to trial was an important indication of a larger problem. The Director submitted that RS had failed to utilize the services offered to the extent that the children could be returned to him. This was because he had continued to engage in behaviours (i.e. the intimate encounter with LB) that had not only led to the initial apprehension of the children but existed at the conclusion of the trial on December 6, 2011.

The inference being that no amount of services offered by the Director could prevent this type of behaviour in the future on the part of RS. For it was clear on the evidence submitted at trial that any contact between the parents was not in the best interests of their children, given the historical chaos and conflict in the home when both parents were together. RS ’s Ability to Improve [ 71 ] In explaining his decision to grant a PGO, the trial judge refers to the evidence of Ms. Harland, who concluded approximately one year before the trial that the children should not be returned to either parent.

While he does refer to Ms. Wotherspoon’s testimony, he does so with regard to her concerns about RS’s relationship with LB. He does not refer to her evidence of RS’s improved parenting ability. Both Ms. Wotherspoon and Ms. Oswald testified that RS was taking feedback and making improvements. Though they both expressed concerns, neither made any definitive conclusion that the children could not be returned to RS. In fact, they both concluded that RS’s skills may improve with further coaching, especially with regard to CS’s ADHD.

The trial judge does not address this more recent evidence or appear to turn his mind to it in his reasons, though he impliedly dismisses it by finding that RS cannot parent the children. [ 72 ] The question of a parent’s ability to improve her skills and effort between the time of an expert report and the time of trial arose in AD. AD involved an appeal by a mother of a PGO that was granted after three supervision orders had been in place but where no TGO had been previously granted. The mother had been diagnosed with cognitive delay resulting in limited ability to think sequentially and effectively plan.

She was socially insecure in a way that inhibited her ability to form healthy relationships, was immature, exhibited poor social judgment and had difficulty reading her child's cues. The child had special needs possibly caused by the mother’s inability to recognize appropriate milestones. [ 73 ] The trial judge in AD gave considerable weight to an expert report that supported a finding that the child could not be returned to the mother in a reasonable time. This conclusion was based on the mother having refused counselling and support.

However, the evidence at trial showed that the mother had since changed her approach and expressed her commitment to improving her parenting skills. The mother’s renewed willingness to continue counselling and receive support changed the basis on which the expert made her conclusion. This new evidence about the mother called into question whether there had been changes during the year since the report was written.

In light of this evidence, and other concerns with the trial decision in that case, Justice Martin granted the mother’s appeal finding that it was an error for the trial judge not to consider all of the evidence before granting a PGO, including the evidence of the mother’s positive changes.

In particular, Justice Martin found “that there was insufficient evidence on which to conclude that a PGO was warranted, especially given the legislative value of family unification and the obligation on courts to make the least intrusive intervention required to secure the safety of the child”: AD at para 151. [ 74 ] In this case, Ms.

Harland concluded that the children could not be returned to either parent based on her observations in late 2010 and therefore at the time of trial no services had yet been put in place by the Director to support reunification of the children with their parents, in particular with the father RS. At trial, Ms. Harland expressed reservations about RS's improvements and said that she felt nothing had changed since the report. However, her lack of involvement with the family since the issuing of her report in January 2011 should have been considered when assigning weight to her conclusion. Neither Ms.

Wotherspoon nor Ms. Oswald, who had more recent involvement with RS and his children, made any definitive statements that the children could not be returned to RS. Both found that he was improving, and could continue to improve his parenting skills, albeit Ms. Wotherspoon had concerns about RS’s October 2011 intimate contact with LB and his poor judgment as previously noted.

[ 75 ] The Director suggests that the present case can be distinguished from AD on the basis that the trial judge in the case at bar did consider all of the evidence, as demonstrated in his review of the evidence and testimony, his findings and his explanation of his reasons for granting the PGO. The Director submits that on a balance of probabilities, the evidence supports the granting of a PGO.

Nevertheless, while the trial judge’s reasons do outline his findings, the trial judge did not acknowledge this more recent positive evidence about RS’s interaction with his children, or explain why, despite this positive evidence, a less intrusive measure was inappropriate. While AD can be distinguished on some of the facts, the principle from AD that the trial judge must consider all of the evidence, including recent positive steps taken by a parent, before determining that the test for a PGO has been made out, is applicable here.

To reiterate, the trial judge must turn his mind to the possibility of granting a less intrusive order: AD at 105. To fail to do so is an error warranting intervention. [ 76 ] Additionally, in another case where the mother was inconsistent in providing the necessities of life, including keeping children safe from sexual and physical abuse, and failed to provide them with a stable and structured environment, the Alberta Court of Appeal nevertheless overturned a PGO.

An expert witness had said that he had no doubts that the mother wanted to and was capable of learning to parent, but could not say whether it would be possible for her to do so within a reasonable time.

The evidence that the mother could improve her parenting, without any ability to conclude whether she would or not, was sufficient to find that the trial judge erred in concluding that the Director met the requirement in s. 34(1)(c): AC v Alberta (Director of Child Welfare) , 2008 ABCA 63 , 88 Alta LR (4th) 216 [ AC ]. [ 77 ] The Director submits that in AC , the expert could not say whether or not the mother would be unable to parent even with supports and therapy. In otherwords, it was uncertain in AC whether the mother could improve as a parent in a reasonable time.

In this case, the Director says that unlike in the case of AC , there is an unequivocal opinion from Ms. Harland. She gave evidence that the father RS will not improve with regard to his co-dependent relationship with LB, and therefore, if the children are placed in his care, the conflict will continue as the parents will continue to have their historical chaotic relationship. [ 78 ] Nevertheless, there was further expert evidence before the trial judge, as earlier noted, which showed that RS was improving his interactions with his children and was eager to accept and implement feedback.

While there was, of course, evidence that RS was still not separating himself from the mother, LB, referring here to the intimate encounter in October, 2011, all of the evidence must still be considered. These positive reports constitute evidence that the trial judge should have considered when deciding whether the Director met its duty to establish on a balance of probabilities that the children could not be returned in a reasonable amount of time. Certainly, the trial judge erred by not considering this evidence.

This evidence becomes particularly relevant in light of the absence of any supports or services for special needs children, which RS required in order to help him work towards the return of his children. The Director ’s Obligation to Provide Services [ 79 ] The appellant, RS, further argues that s. 2 requires the Court to consider whether the Director discharged its duty to provide services that support family unity: see AD at para 91.

In his reasons, the trial judge notes that services were provided but he does not explain how the Director fulfilled this s. 2 requirement. [ 80 ] As stated by Justice Martin in AD at para 97, “[t]he Director need not provide all recommended services to discharge its obligation [...]. However, the relationship and fit between what is needed and what was provided may be considered when assessing whether the child could or should be returned within a reasonable time.” [ 81 ] In AD , as earlier noted, the child had been diagnosed with special needs after apprehension.

This meant that prior to the Director seeking a PGO, the mother had no opportunity to demonstrate whether she had the ability or willingness to do what would be necessary for the child.

The PGO was thus overturned partly because the Director provided insufficient services of a quality and in the manner needed to support family unity, which, if provided, could have prevented the need to remove the child from the family. [ 82 ] So too, as earlier noted in AC , the Court of Appeal similarly reversed a PGO on the ground that the trial judge failed to properly consider whether the children could be returned with proper services in place.

In AC there was “insufficient evidence upon which to base [a] conclusion that the mother could not, with ongoing therapy and in-house support, improve her parenting sufficiently within a reasonable time, and thus avoid the drastic measure of permanent separation of the family unit”: AC at para 16. [ 83 ] The Director submits that AC can be distinguished on the facts, and that it differs markedly from the case at bar. In AC , the

mother was given no time or support to demonstrate or build her parenting skills because the Director sought a PGO immediately after apprehension. [ 84 ] In this case, by contrast, the Director appears to submit that, unlike AC where the mother had no opportunity to work toward the return of her children, here RS has had ample time to demonstrate his ability to parent but he has failed to do so. The Director submits that the evidence is unequivocal that RS is enmeshed with LB.

RS has not acknowledged his accountability and role in his ongoing relationship with LB as a reason that the children were taken into care. The Director points to Ms. Laberge’s testimony that RS needs to recognize his accountability before treatment can be effective, implying that, by failing to separate himself from LB and by concealing their ongoing relationship, RS has shown that services will not be effective in helping him seek the return of his children. [ 85 ] However, in my view, if Ms.

Laberge’s evidence is considered in conjunction with the more recent expert evidence, noted in the previous section, it is clear that RS has the ability to take and implement feedback, and to improve his ability to parent. The trial judge did not explain nor identify which services RS had received that were aimed at helping him seek the return of his children, before determining that RS could not demonstrate in a reasonable time that the children could be returned to him. [ 86 ] In the present case, CS was diagnosed with ADHD in May 2010. He was apprehended in July 2010 and the trial occurred in November 2011.

In the two-month period between diagnosis and apprehension, and even up until the trial, the evidence shows that RS did not receive services to assist him with parenting a child with special needs, though he had sought out some assistance himself. All that was in place prior to the trial was supervised access, during which RS showed that he was addressing the Director’s concerns about his parenting such that the Director felt comfortable moving forward with its TGO application.

It was contemplated that once the TGO was granted by the Court, then those special needs services would be provided by the Director, but it was clear at trial that this was not yet the case. The Director refers to services that the family received, such as Al Anon, Servants Anonymous and Calgary Counselling. However none of these were aimed at improving RS’s ability to parent his children, and most of the services provided were directed specifically to the mother, LB.

It is important to remember, therefore, that it is not the number of services that are provided but the quality of the services and their “fit” in relation to the needs of the family that are critical: AD at para 97. [ 87 ] Also, it should be stated that Ms. Wotherspoon identified at trial that RS could benefit from further services, such as therapeutic access, and that parenting classes for children with ADHD and FASD could help him improve his relationship with his son, CS. In his reasons, the trial judge does not refer to or address this material evidence submitted by Ms.

Wotherspoon, which goes to the question of whether the children could be returned to RS within a reasonable time if proper services were in place. [ 88 ] In my view, any suggestion that RS will not be able to work toward the return of his children with the appropriate supports in place, before any such support has been offered, puts the “cart before the horse” so to speak.

It may be that by undergoing treatment and education, including assistance for parenting special needs children, RS could recognize his lack of accountability and poor judgment in his ongoing relationship with LB and the consequent negative and detrimental effect on his children. To assume that RS will not be able to do what is needed for his children to be returned in a reasonable time, without first giving him the means to do so, is to deny him the opportunity to demonstrate that such services will be effective in improving his ability to parent, so that his children can be returned to him.

To deny RS that opportunity, is in itself an error.

As the Alberta Court of Appeal recognized in CA , albeit with different facts before it, the trial judge must consider whether the children could be returned in a reasonable time, with proper services in place. [ 89 ] The trial judge remarks in his decision that the children “cannot wait” and “are entitled to the best that we can offer them now.” The Alberta Court of Appeal has clearly stated that “uncertainty cannot form the basis for a PGO because the obligation falls on the Director to show that return of the child is not possible within a reasonable time”: MT at para 35.

The test is not what is the best that can be offered to the child right now.

The case law shows that the Court must consider the possibility that a child could be returned to a parent in a reasonable, future, time if sufficient services are provided. [ 90 ] The trial judge’s brief mention of services in this case does not demonstrate that he turned his mind to all of the evidence and, in fact, leads me to conclude that he did not consider it in any meaningful way when he stated that, “better services could have been offered [...] but I find adequate services were offered.” It was an error not to consider and to adequately explain whether the services provided fulfilled the requirements of s. 2 and whether the children could be returned to the father, RS, within a reasonable time with appropriate services for special needs children in place.

It would likewise be an error to assume that services would not be effective, when the appropriate services had not yet been provided. Encounter with the Mother

[ 91 ] The appellant, RS, also submits that in deciding that the children could not be returned to him in a reasonable time, the trial judge overemphasized the importance of the sexual intimate encounter with the mother, LB. RS points out that both parents testified that the encounter was not a reconciliation, though LB was notably less emphatic.

The testimony suggests that the encounter occurred essentially out of loneliness and LB’s insecurities and her “need to feel loved.” RS also testified that he had been trying to separate himself from LB, and LB indicated that it was always she who initiated contact between the two. RS points out that the trial judge preferred the mother’s evidence over that of the father’s wherever there was a conflict. However, on this matter of reconciliation there appears to be no conflict.

The parties were in agreement that the sexual intimate encounter in October 2011 was nothing more than just that and on that basis RS submits the trial judge should have accepted that to be the situation. On this, I agree with RS. As the trial judge preferred the mother’s evidence, then he should have accepted her evidence on this point.

No explanation was offered by the trial judge on this as to why he did not accept this critical evidence. [ 92 ] By contrast, the Director and Counsel for the children consider it vital that, for there to be any chance of success in parenting the children, RS must disengage contact with LB. When it was revealed at trial that RS was still in contact with the mother, the Director found it necessary to pursue a PGO. This revelation also caused the expert witnesses to express concern about RS’s judgment, as I have earlier noted. [ 93 ] The evidence shows that chaos followed when the mother and father are together.

This chaos was found to present a risk to the children. The evidence shows that RS needs to separate himself from LB. It also shows that he has started to do so by removing her name from the lease and not allowing her at the house. The encounter before the trial raised a concern regarding the risk to the children. However, “[...] even if the presence of risk may effect whether a child “should” be returned, requiring the elimination of risk is not consistent with the legislative choice of the word “could””: CB at para 102; see also MT at para 101.

In light of all of the previously mentioned evidence that was not meaningfully considered by the trial judge, in my view this sexually intimate encounter between the parents, which tipped the balance toward a PGO, was not sufficient to fulfill the requirements of s. 34(1), particularly in light of the absence of services. Conclusion [ 94 ] It is an error for a trial judge not to consider all of the material evidence in a PGO application.

The Court has said that, “[i]t is crucial that in matters of such importance and finality courts are scrupulous with evidence and respect fully the values set out by the legislature and not rush forward”: AD at para 155. [ 95 ] The evidence of RS’s efforts and improvements, the absence of services aimed at his ability to parent special needs children before the Director’s application for a PGO, and the testimony suggesting that such services could further improve his parenting ability, were material to the assessment of whether the children could be returned to him in a reasonable time.

By failing to consider this evidence, the trial judge erred in his application of the test in s. 34(1) and s. 2. In my view, a proper consideration of this evidence would lead to a conclusion that the children “could” be returned in a reasonable amount of time. Therefore, a TGO and not a PGO should have been granted. Issue 3: Did the Trial Judge Err by Not Giving Reasons Before the Expiry of the Appeal Period? [ 96 ] In light of my decision on the first two issues, I do not need to decide the other issues raised by the appellant, RS.

However, I do wish to touch upon a concern raised by the appellant that a delay in providing reasons for a decision under the Act can have negative consequences for a party that wishes to appeal. [ 97 ] Counsel for the appellant, RS, noted during the appeal hearing that the absence of reasons can affect a parent’s ability to obtain legal aid funding for an appeal.

Where funding approval is based on the likely success of an appeal, the absence of reasons will make it more difficult to obtain that funding. [ 98 ] Additionally, the 30 day appeal period under the Act begins to run from the date of the granting of the order, not from the date of reasons as is the case in some other contexts.

The Court Rules and Forms Regulation , Alta Reg 39/2002 at s. 5.1(3) states, “the notice of appeal must be filed and served within 30 days after the date on which the order being appealed was made or refused.” This is a statutory appeal period that cannot be extended for any reason: LA v Alberta (Director, Child, Youth & Family Enhancement Act) , 2010

ABQB 138 , [2011] AWLD 243 at para 14 (in this case, though the mother could not appeal the PGO because her notice of appeal came 35 days after the trial judge made his order, she was however, able to seek judicial review of the PGO); see also RR v Alberta (Director of Child Welfare) , 1999 ABQB 628 . [ 99 ] A trial judge, who renders a decision by the granting of an order without reasons, places a party in the position of having to decide whether to appeal without the benefit of knowing why the order was granted.

In a case such as this, where reasons cannot be provided at the time the order is made, it is to the benefit of all parties that the granting of the order be reserved until a time when it can be explained with reasons from the trial judge. VIII. Conclusion [ 100 ] The trial judge was in error for the reasons that I have noted. The appeal is allowed. [ 101 ] Rather than send the matter back for a new trial, I am satisfied, after a full review of the record, that the evidence does not support the granting of a PGO but does support a TGO.

The conclusion that the children could not be returned to the appellant, RS, within a reasonable time is not established on a balance of probabilities when all of the evidence is considered. [ 102 ] As there are still concerns with respect to the father further improving his ability to care for his special needs children and his ability to terminate his relationship with the mother, I therefore vacate the PGO and instead put in place a six-month TGO pursuant to my authority under s. 117(2) and s. 33(3) of the Act . [ 103 ] I agree with the other terms suggested by the appellant, father, for the TGO, in particular that: a.

The father have therapeutic access with the children, with a view to transitioning the children to his care. This should be done through Ms. Wotherspoon, assuming that she is available to do this and left to the Director’s discretion as to when and how that transition into the father’s care will take place. In that regard, the Director may exercise the rights of a guardian in relation to these two children, including deciding where the children will reside; b. There be a provision for no contact with the mother, LB; c.

The Director provide age appropriate courses on parenting children with ADHD and FASD to the father; d. The father, RS, undergo an updated parenting assessment to be prepared by a new assessor other than Ms. Harland, to be agreed upon by the parties; e. The children receive appropriate therapy; f. The mother’s access to the children will be determined at the discretion of the Director. [ 104 ] If the parties have any issues with these terms they can come before me at a time mutually agreeable, to be arranged through my legal assistant. Heard on the 26 th day of September, 2012.

Dated at the City of Calgary, Alberta this 26 th day of November, 2012.

C.S. Phillips J.C.Q.B.A. Appearances: Jocelyn L. Hill for the Appellant, RS W. Randolph Scott for the Respondent, the Director Julie Hart for the Third Party, the Children _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Madam Justice C.S. Phillips _______________________________________________________ Page 1 Delete: Citation: RS v Director of Child, Youth and Family Enhancement Act, 2012 ABQB 715 Replace With: Citation: RS v Alberta (Child, Youth and Family Enhancement Act, Director), 2012 ABQB 715