AR Appellant - v. -, 2013 ABQB 715

Court of Queen ’ s Bench of Alberta Citation: AR v Alberta (Child, Youth & Family Enhancement Act, Director), 2013 ABQB 715 Date: 20131206 Docket: FL03 35906 Registry: Edmonton Between: AR Appellant - and - Director of 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. _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice Thomas W. Wakeling _________________________________________ ______________ I. Introduction

[ 1 ] On November 1, 2011 the director [1] applied for an order under s. 34(13) of the Child, Youth and Family Enhancement Act , R.S.A. 2000, c. C-12 terminating the conditional access order granted by The Provincial Court of Alberta [2] on May 17, 2011 in favour of AR , the mother of SR, born August 17, 1998, and GR, born December 7, 2006. The director is the permanent guardian of the children, as a result of a permanent guardianship order issued May 17, 2011. [ 2 ] AR has not seen SR since January 2008. She last saw GR on August 30, 2009.

The children are and have been under the care of their maternal grandparents. They are doing well. [ 3 ] On September 24, 2012 Judge Shauna Miller, after a two-day hearing, granted the director’s application and terminated the conditional access order. The following passage summarizes the crucial parts of her oral reasons: SR has lived with his grandparents since April 2005. GR has lived with her grandparents her entire life. [The children] … are bonded to [their grandparents] ... and they are bonded to each other. Neither SR nor GR wants to see their mother.

GR and SR see their grandparents as the persons who provide them with stability and continuity. [Their grandparents] … now want to adopt them. They meet the children’s mental, emotional and physical needs. GR and SR are happy, well-adjusted children. They want to live with their grandparents in the long-term; it is in their best interest to continue in that stable relationship. Continued efforts under the May 17, 2011 access order will not be in the children’s best interest. [ 4 ] On October 11, 2012 AR filed a notice of appeal, pursuant to s. 114(1) (

b) of Child, Youth and Family Enhancement Act . She argues that Judge Miller’s access termination order is the result of an impermissible collateral attack on the conditional access order and that there was no significant change in circumstances after May 17, 2011 to justify the access termination order. II. Questions Presented [ 5 ] Does the access termination order constitute an impermissible collateral attack on the conditional access order? [ 6 ] AR raised the collateral attack argument for the first time on appeal.

Can she? [ 7 ] Must there be a change in circumstances before a judge of The Provincial Court of Alberta may exercise jurisdiction under s. 34(13) of the Child, Youth and Family Enhancement Act and review an access order issued under s. 34(8) of the Act ? [ 8 ] If the access termination order is not an impermissible collateral attack and there has been a change in circumstances, is there any reason to revoke or vary it? Did Judge Miller identify and apply the correct legal principles? She based her decision on what was in the children’s best interests. Did the judge disregard any material evidence?

Is the decision to terminate access to the children’s biological mother clearly wrong? III. Brief Answers [ 9 ] The director’s termination application is not a collateral attack on the conditional access order.

The Child, Youth and Family Enhancement Act expressly stipulates that a Provincial Court judge may vary an access order granted by a colleague. [ 10 ] I entertained this argument, despite its late presentation, because it has no factual component and the director was not prejudiced by the fact that it was broached for the first time on appeal. [ 11 ] There is no reason to revoke or vary Judge Miller’s decision. Judge Miller applied the proper legal principles.

She identified facts which constituted a change in circumstances, a precondition to her exercise of jurisdiction under s. 34(13) of the Child, Youth and Family Enhancement Act , and understood that her decision must be the product of this query - what is in the best interests of the children, taking into consideration the factors cataloged in s. 2 of the Act . She made no error in making her factual determinations. Her decision reveals that she took into account the wishes of the children, the opinions of the therapists and the contradictory positions held by AR and her parents.

She did not disregard any material evidence. Judge Miller’s application of the governing principles reflects sound judgment. IV. Applicable Statutory Provisions [ 12 ] The important sections of the Child, Youth and Family Enhancement Act are set out below: 2 If a child is in need of intervention, a Court ... must [exercise any authority under this Act ] … 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) A 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; … (

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 ... 34(8) On making a permanent guardianship order or any time during its term, the Court, on application of a director, a former guardian of the child, the child if the child is 12 years of age or older or any other person with whom the child has a significant relationship, may make an order prescribing the access to be provided between the child and the former guardian or that other person. ...

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

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

(14) On hearing an application under subsection (13), the Court may continue, vary or terminate the original order. ... 114(1) An order of the [ Provincial] Court made under this Act may be appealed to the Court of Queen’s Bench by ... (

b) a person who was a guardian of the child immediately before the order was made, ... (

e) a director … . ... 117(2) On hearing an appeal made pursuant to

section 116, the Court of Queen’s Bench may (

a) confirm the order or refusal, (

b) revoke or vary the order made, or (

c) make any order the Court could have made in the hearing before it. V. Statement of Facts A. Personal History [ 13 ] AR is the mother of five children. All of them are the subjects of permanent guardianship orders. [ 14 ] Unfortunately, AR and her mother, Dr. R, are estranged. AR believes that her mother is a controlling person and wants nothing to do with her. Dr. R regrets this estrangement but is convinced that AR is not well and cannot, at this time, play a positive role in the lives of SR and GR. [ 15 ] Dr.

R has cared for SR since April 29, 2005, when he was six, and GR, since she was born on December 7, 2006. [ 16 ] Dr. R informed Children’s Services in the fall of 2011 that she and her husband wished to adopt GR and SR. B. Applicable Court Orders [ 17 ] The Provincial Court of Alberta issued permanent guardianship orders with respect to three of AR’s children on May 20,

2008. GR and SR were the subject of similar orders on May 17, 2011. [ 18 ] Another May 17, 2011 order granted AR conditional access to GR and SR. Part of this order reads as follows: (

a) The mother AR shall have reasonable access, supervised in the discretion of the Director, to the child SR only on the recommendation of a therapist and in consultation with SR. (

b) The mother AR shall have reasonable access, supervised in the discretion of the Director, to the child GR only on the recommendation of a therapist. This access will take place in a therapeutic environment until that environment is deemed unnecessary by a therapist, at which point access will be supervised at the discretion of the Director, provided the mother attend counseling to assist her in maintaining and promoting her relationship with the child. [ 19 ] On November 1, 2011 the director filed an application for an order terminating the conditional access order.

In support of this application, Rocsan Perra, the Child and Youth Service caseworker assigned to GR and SR, stated that the application is made “because the existing access order is not able to be worked on due [to] historical issues between the mother and the caregiver, the maternal grandmother and their highly conflictual [sic] relationship. In addition, working on the existing access order is impeding permanency with the maternal grandparents”. [ 20 ] After a hearing held on August 29, 30 and 31, 2012 Judge Miller terminated the conditional access order.

She gave oral reasons on September 24, 2012, the key parts of which are set out below: Dr. R, while feeling sad about the strained relationship with her daughter, said she cannot cope with the additional stress and conflict by having to spend the time and energy to see whether GR could have some sort of relationship with her mother. She has told the children if they would like to see their mother, she would accommodate this. Dr. Nielsen [, a therapist retained by the director to assist GR and SR,] thought the best possible solution for GR and SR would be for Dr.

R to remain their primary caregiver and for AR to have access. Dr. Dewhurst [, a therapist retained by the director to assist AR,] said there must be clear boundaries [between AR and her mother] and a “truce”. Each adult would have a relationship with GR that the other does not interfere with. However, AR is not willing to recognize any involvement of her mother in the children’s lives. She said that she will do everything in her power to make sure the children do not live with her parents and that they live with her.

Her stated goal is to have her children removed from her mother’s care, notwithstanding their strong bond to them and their thriving environment. Dr. Dewhurst and Dr. Nielsen are of the view that it would be harmful to GR and SR to break the attachment to their grandparents. … AR ’s continued belief that her mother abuses her children where the evidence is to the contrary narrows her focus to having her children not live with her, rather than considering their best interest. Neither Dr. R nor AR are willing to work on their strained relationship. Dr. Nielsen said that if Dr.

R is not willing to support visits, this would cause GR significant stress. GR is attached to her grandmother, the conflict in the relationship between Dr. R … and AR … would leave GR caught in the middle. Further, if GR left Dr. R’s home, breaking the attachment would be traumatic to GR. … When AR perceives she has been treated unjustly, in many cases by Children’s Services, her focus is on the injustice. She does not consider the best interests of her children.

Anything short of terminating the permanent guardianship order, returning the children to her and ensuring the children do not see their grandparents will result, in her view, that she has been unjustly treated. Counsel for GR and SR has met with the children frequently since he became their lawyer in November of 2009. SR and GR have been consistent over time in their wishes - they do not wish to see their mother. ... ... Counsel for the children submits that the stability of placement with their grandparents is in their best interests. Ongoing friction between Dr.

R and AR would interfere with a stable relationship the children have with their grandparents. The children’s wishes are an important consideration. ... ... Continued efforts to see whether a relationship of some sort could be established with AR and the children would be in the face of an expressed statement of AR ... that her mother abuses her children and her goal is to ensure the children do not live with her mother and are returned to her.

She is unlikely to appreciate the children are bonded to their grandparents and that not living with them would cause them considerable distress and be traumatizing to them. ... With an adoption the children will have permanency. Dr. R says that her efforts are raising the children; she cannot cope with AR ’s continual stance against her. ...

Section 2 of the Child, Youth and Family Enhancement Act also speaks of the child’s placement and the benefits of the child of a placement with the extended family, the stability and continuity of care in relationships, the suitability of the proposed placement and the mental, emotional and physical needs of the children and their stage of development.

SR has lived with his grandparents since April 2005. GR has lived with her grandparents her entire life. They are bonded to them andthey are bonded to each other. Neither SR nor GR want to see their mother. GR and SR see their grandparents as the parents who provide them with stability and continuity. The Rs now want to adopt them. Theymeet the children’s mental, emotional and physical needs. GR and SR are happy, well-adjusted children. They want to live with hergrandparents in the long-term; it is in their best interests to continue in that stable relationship.

Continued efforts under the May 17, 2011... access order will not be in the children’s best interests. [21] On October 11, 2012 AR filed a notice of appeal against the access termination order. VI. Analysis A. Standard of Review [22] An appeal court will set aside an access order if the court with original jurisdiction “acted on a wrong principle ordisregarded material evidence, or where the decision is otherwise clearly wrong”. T.(M.) v. Alberta, 2005 ABCA 125 , 42 Alta. L.R. 4th 99, 110 (C.A. 2005). See also McKee v.

McKee, (UK JCPC), [1951] A.C. 352, 360 (P.C.) (Can.) (“the questionof custody of an infant is a matter which peculiarly lies within the discretion of the judge who hears the case and has the opportunitygenerally denied to an appellate tribunal of seeing the parties… and that his decision should not be disturbed unless he has clearly actedon some wrong principle or disregarded material evidence”). A court acts on a wrong principle if it makes an error of law.[3] [23] In Van de Perre v.

Edwards, 2001 SCC 60 , [2001] 2 S.C.R. 1014, 1024 & 1026 Justice Bastarache opined that an appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciationof the facts. ... ... … [A]n omission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored ormisconceived the evidence in a way that affected his conclusion. Without this reasoned belief, the appellate court cannot reconsider theevidence. B.

The Application To Terminate the Conditional Access Order Is Not a Collateral Attack [24] In the Anglo-American-Canadian legal system, a person adversely affected by an order made by a tribunal cannot question thevalidity of the order unless the step utilized to present the challenge is sanctioned by legislation or the common law.[4] This is sowhether the order is made by a statutory delegate, an inferior court or a superior court.[5] A legal system based on the rule of law mustinsist that its orders be obeyed: “If people are free to ignore court orders because they believe that their foundation is unconstitutional,anarchy cannot be far behind”.

Canada v. Taylor, (SCC), [1990] 3 S.C.R. 892, 974. See also United State v. UnitedMineworkers of America, 330 U.S. 258, 312 (1947) (“If one man is allowed to determine for himself what is law, every man can.

Thatmeans first chaos, then tyranny”). [25] Does the Child, Youth and Family Enhancement Act allow a person adversely affected by an access order of The ProvincialCourt of Alberta to file an appeal with the Court of Queen’s Bench or file a review application with the Provincial Court? [26] It does. [27] The Child, Youth and Family Enhancement Act clearly contemplates that a person directly affected by an access order grantedduring the term of a permanent guardianship order may seek review by The Provincial Court of Alberta of an access order. No timelimits restrict the exercise of this right.

Subsections 34(13) and (14) expressly declare that The Provincial Court of Alberta may continue,vary or terminate an access order: 34(13) If an order is made under subsection (8), a director, the child if the child is 12 years of age or older, or the person to whom theaccess order is provided in the order may apply to the Court for review of the order.

(14) On hearing an application under subsection (13) the Court may continue, vary or terminate the original order. [28] In addition, the Act allows a person aggrieved by an access order to invoke s. 114(1) of the Child, Youth and FamilyEnhancement Act and appeal to the Court of Queen’s Bench.[6] This is undoubtedly true, in all cases, with respect to the director. It mayalso be true with respect to a person who was a guardian[7] of the child, on account of being the child’s parent, if it can be determinedthat the person was “a guardian of the child immediately before the [access] order was made”.

In some fact patterns this may bedisputable. Suppose that The Provincial Court of Alberta made the director the permanent guardian of a child on day one and deniedaccess to the parent on day 1000. Does the effluxion of this much time mean that the parent was not a guardian “immediately” beforeday 1000? If not, the disgruntled parent is not without options. The disgruntled parent may rely in s. 34(13) of the Child, Youth andFamily Enhancement Act and apply to The Provincial Court of Alberta “for a review of the [access] order”.

This provision states that the“person to whom access is provided in the order may apply to the Court for a review of the order”. [29] I am satisfied that the director’s November 1, 2011 application does not run afoul of the collateral attack doctrine, as theLegislative Assembly of Alberta created a review structure which allows such an application.

[30] The Court entertained this argument even though AR presented it here for the first time. Because the argument has no factualcomponent, the director is not prejudiced by the fact that the argument was first broached on appeal.[8] That the argument was not madebefore Judge Miller is not without consequences though. This Court is forced to proceed without the benefit of the opinion of JudgeMiller on this issue. It would have been helpful to have had her opinion on this important point.[9] C. There Has Been a Change in Circumstances 1.

Rational for the Requirement [31] AR argues that the director cannot apply for a review of the conditional access order unless, at the time of application, therehas been a change in circumstances. [32] I am satisfied that the director must show a change a circumstances to activate s. 34(13) of the Child, Youth and FamilyEnhancement Act. See McKee v.

McKee, (UK JCPC), [1951] A.C. 352, 364 (P.C.) (Can.) (trial judge’s refusal to applya California custody order was approved because “the facts which ... had influenced [the California] ... court had substantially changed”).Contra Re A.R., 2004 ABPC 49, ¶ 36 (“The Act does not stipulate that a change of circumstance is a precondition for a review which maybe brought at any time”).[10] The legislative text and the inherent value of certainty and finality in access orders lead to this conclusion. [33] The director must be able to establish that there is a change in circumstances as of both the date of the application and thehearing.[11] It may well be the case that the fact pattern which constitutes the change in circumstances at the time of the reviewapplication and the hearing of the review application need not be the same.

Suppose that a person who held access rights under a s. 34(8)order, subsequent to the crystallization of the access rights, is charged with sexually assaulting a child, a criminal offence which wouldmake the access holder an inappropriate holder of access rights. Suppose also that the director applied for a review of the access orderunder s. 34(13) relying on the criminal charge.

If the access holder was acquitted of the sexual assault on a child because the childrefused to testify at trial before the review application was heard the reviewing court, if satisfied there was sufficient grounds to justifythe conclusion that the access holder had sexually assaulted a child, may conclude that there has been a change in circumstances whichwarrants termination of the access order.

Or suppose that the access holder was acquitted of the sexual assault after a trial and the Courtconcluded that the child’s account was a complete fabrication attributable entirely to a child’s parental pressure to account for a physicalcondition which, on due deliberation, had an innocent medical explanation. While the charge justified the director to file a reviewapplication, the final determination made before the review application was heard meant that there was no change in circumstances onaccount of the charge.

But suppose that the access holder developed a medical condition which meant that the access holder who wasacquitted could not safely interact with a child. That the fact pattern which constituted a change in circumstances at the time the reviewapplication was filed and heard had changed should not matter.

If this was not the case, the director would simply withdraw the firstreview application and file a second review application after the access holders medical condition had been diagnosed. [34] The existence of both the appeal option and the variance option supports the notion that the standards governing the use of thedifferent options must be different. [35] An appeal allows the appeal court to assess the determination made by The Provincial Court of Alberta on the basis of thesame fact pattern as was before the original adjudicator, within the parameters of the standard of review.

Re G.M. and R.M., (ON SC), 20 O.R. 2d 378, 383 (Div. Ct. 1978) (“It is the function of an appellate tribunal to consider the conduct of the trial”). [36] If the variance option did not require the applicant to present facts which allowed The Provincial Court to conclude that therewas a change in circumstance, The Provincial Court would, in essence, be conducting its second review of the access question on thebasis of the same facts as were before the original adjudicator. There is no good reason to assign jurisdiction to two different courts toresolve disputes featuring common fact patterns and legal issues.

It is not in the public interest to devote public and private resources torelitigate controversies. Nor is it in the interests of the persons affected by access orders to promote uncertainty. Finality is a positivefeature in disputes of this nature. See D. Lange, The Doctrine of Res Judicata in Canada 4-5 (3d ed. 2010). Relitigation may compromisethe credibility of the courts by generating inconsistent dispositions. Re G.M. and R.M., (ON SC), 20 O.R. 2d 378, 383(Div.

Ct. 1978) (“It is contrary to the judicial process and undermines the credibility of the Courts if a judicial tribunal hear[s] the sameevidence in a different trial on the same issues and conceivably arrive[s] at conflicting results”). I do not believe that the Child, Youthand Family Enhancement Act creates, in effect, two appeal processes. [37] Regrettably, this question has not been expressly addressed by the Court of Appeal of Alberta, the Court of Queen’s Bench ofAlberta or The Provincial Court of Alberta and the merits of the competing viewpoints debated.

But, it is safe to conclude that a largenumber of Provincial Court judges have assumed that the variation option requires the applicant to demonstrate a change ofcircumstances.

Re A.(B.), 2001 ABPC 67, ¶ 4 (the Court acknowledges that it would not have granted conditional access had it “heardthe evidence ... concerning the ultimate impediments to finalization of the children’s placements”); Re N.K., 2010 ABPC 74, ¶ 48 (“if theDirector has a valid reason for not providing any post-PGO access after it has been ordered by the court ... then an application should bemade ... pursuant to 34 (13) of the CYFEA to terminate all access”); Re An., 2008 ABPC 226, ¶ 55 (access granted in a permanentguardianship order terminated because the children’s “lives have changed [and] their legal relationships have changed”) & Director ofChild Welfare v.

C.H., 2003 ABPC 3 (conditional access to a biological parent was terminated because prospective adoptive parentswere opposed to continued access). [38] This view is consistent with other statutory provisions regulating access to children.[12] For example, s. 34(3) of the FamilyLaw Act, S.A. 2003, c.

F-4.5 reads as follows: Before the court makes a variation order in respect of a parenting order, the court shall satisfy itself that a change in the needs orcircumstances of the child has occurred since the making of the parenting order or the last variation order made in respect of that order,and in making the variation order, the court shall consider only the best interests of the child ... . See also Alberta Rules of Court, Alta. Reg. 124/2010, Sch. A, Div. 2, Forms FL-43 & FL-65 & Divorce Act, R.S.C. 1985, c. 3 (2d

Supp.), s. 17(4). [ 39 ] Common sense [13] also supports this outcome. Orders determining a child’s primary caregivers and circle of contacts ought not to be subject to review and possible change at the whim of a disgruntled applicant. 2. Application of General Principles [ 40 ] The fact patterns in place as of May 17, 2011, the date the conditional access order was granted, and November 1, 2011, the date the director filed an application for an order terminating the conditional access order, and August 29, 30 and 31, 2012, the date of the hearing, are dramatically different.

These differences are substantial enough to conclude that there has been a change in circumstances. [14] [ 41 ] In the post May 17, 2011 period, Dr. R and her husband informed the director that they wished to adopt GR and SR but would not adopt GR if she is forced to continue in the therapy process designed to implement future access for AR to GR. [ 42 ] Several extracts from the trial confirm this. [ 43 ] The first passage is from Dr. R’s direct examination: Q ... What are your plans for GR and SR? ... A We want to adopt them. ...

Q And if the Court were to order that there be access continuing between either of the children and their mother, what, if any, impact, would that have on your plans [to adopt the children] ...? ... A Well, I don’t know how I would cope with GR’s state-of-mind if she is forced to see her mother, and I really don’t think I could handle that. Q ... [W] hat if anything, have you indicated to your workers with regards to your position on keeping GR if she is to have contact with her mom? A I would rather not see what is going to happen to her and she would have to go somewhere else. Q And that is still your position?

A Yes it is. She doesn’t deserve this sort of stuff that is going on. It is a terrible thing to have to say and I would hate to have it happen, but to see her wrecked, I just can’t do it. ... A ... [GR] is just a prize. She is ... wonderful, absolutely wonderful, and I couldn’t see our life without any of these kids. Q And yet you’ve said that if [GR] were to have contact with ... [her] mom, you would take the position that she shouldn’t live in your house? A That’s right, because I know what that would do to her if she was forced to do that ... . [ 44 ] Other parts of Dr.

R’s direct examination reveal that she firmly holds the view that GR suffers psychologically after she sees her mother: “I am afraid that it may harm her self-esteem ... her sleeping patterns, her wetting patterns”. GR screams and yells when she is told that she will see her mother. [ 45 ] Cross-examination by AR’s counsel did not cause Dr. R to alter her position at all: Q [Y]ou’ve had ... [GR] for ... 5 and a half years now, and if she is forced to go to these therapy sessions you are going to send her back to Child Welfare?

A I don’t have much choice because I love that little girl too much to see her getting all upset again. I just can’t, I can’t do it, and I am sure it will affect the boys ... as well as my husband. [ 46 ] Dr. R gave the same confirmatory response when the same question was put by the children’s lawyer. [ 47 ] Ms. Perra, a caseworker employed by Children’s Services and the former case worker for GR and SR, confirmed that Dr. R had informed her in the post May 17, 2011 period that she would not care for GR if GR was forced to see AR against her will: [Dr.

R] presented that if we push at having GR do access she wasn’t prepared to have GR remaining in the home because she was worried about how it would impact GR and her ability to manage GR in her home, so obviously I had to take that very seriously because this is a long-term placement for GR, the only placement she has known, and she is living with her sibling that she has known all her life and how that would impact her was of great concern. [ 48 ] Dr. R’s announcement in the post May 17, 2011 period that she and her husband wished to adopt SR and GR and that the

adoption of GR was contingent on relieving GR of the need to participate in counseling sessions or to see her mother against her wishes was significant for a number of reasons. [15] [ 49 ] First, s. 34(12) of the Child, Youth and Family Enhancement Act provides that a court must not make an access order unless satisfied the access order “will not interfere with the adoption of the child”. This is a clear legislative pronouncement that the interests of a child to be adopted are much more important than preserving the link between a child and the child’s biological parents.

The text of the enactment sends an unmistakable message. On May 17, 2011 The Provincial Court of Alberta did not have to cope with this fact. There was no statement from Dr. R that she wished to adopt the children and to end forced contact between GR and AR. Post May 17, 2011 developments now introduce Dr. R’s unequivocal wish to adopt GR on the condition the compelled contact between GR and her mother cease.

If a court may not make an access order under s. 34(8) of the Child, Youth and Family Enhancement Act if to do so jeopardizes the child’s adoption, a court hearing a review request under s. 34(13) should terminate access if it is satisfied that the continuation of an access order will interfere with the adoption of the child. [ 50 ] Second, even if there was no statutory direction in the Child, Youth and Family Enhancement Act to refrain from ordering access in this fact pattern, common sense favours such a result. Dr. R has been GR’s care giver since birth and is doing an excellent job.

The evidence supports the conclusion that GR is flourishing under her grandmother’s care. Nothing should be done to endanger the continued existence of a relationship which promotes GR’s best interests.

The factors enumerated in s. 2 of the Child, Youth and Family Enhancement Act , particularly s. 2(b) (“the importance of stable, permanent and nurturing relationships for the child”), strongly supports the conclusion that the continuation of the provisional access order is not in GR’s best interests. [ 51 ] There are also other developments in the post May 17, 2011 period which activate the change in circumstances test. [ 52 ] First, Dr. R’s unequivocal opposition to the continuation of the counseling sessions placed Drs. Dewhurst and Nielsen in an intolerable position.

They appreciate that their participation in the process may result in irreparable harm to GR. [ 53 ] Dr. Dewhurst explained her concerns this way in her testimony: Q And you were getting ready to move towards direct contact? [16] A That’s right. Q And what happened then? A ...

We had a case conference with a Child Welfare worker and she said to us, basically, there was no support for ongoing visits ... from the grandmother and that they were in a place where they either had to look at -- the grandmother had threatened that if she went forward with these visits, she would give up caring for GR; and if -- the only way that GR could stay in her placement is that no visits can be supported. We had to stop there. Q ... So I want to be clear that the therapy and video sessions were not stopped because of AR. A Oh, no. It was our decision to stop because of an ethics issue. ...

Well, once we were told that a four-year-old will have to be removed if we persist, to a placement ... with a stranger ... that causes harm, so we had to stop and get clarification that the child would not be harmed by our initiative ... . Q But it ... causes harm to the child. A Oh absolutely. Q Because of the change that may occur? A ... GR had been raised by her grandmother since early childhood.

A ... shift, sudden, for any reason, is ... hard, and ... this is where GR is caught between a rock and a hard place; ... we were told she can’t have a relationship with her mother without losing her relationship to her grandmother. [ 54 ] The following extract records Dr. Nielsen’s evidence on this topic: Q ... [A]re you aware of ... Dr. R’s position ... if access is to ... begin between GR and her mom? A My understanding was that Dr. R was very opposed to that and would not agree to that happening. Q ... And are you aware ... that she would not keep GR in her home [if there was access]? A Yes. ...

Q What concerns would you have for GR if she were forced to leave her grandmother’s home? A ... I have a number of concerns for GR. One is that she has been with her grandmother since birth and obviously has some primary attachment bonds with her grandmother so any time a child is taken away from somebody they have attachment bonds with, that’s a traumatic experience.

On the other hand, ... GR would greatly benefit by having access to her mother. ... So I feel that GR ... is stuck in the middle, and it’s hard to see ... an easy path out of this, one that would be absolutely in the best interests of the child would be that she stay with her grandmother and have contact with her mother. ... Q ... If the Court is forced to choose between those bonds, are you able to say which is more important to GR? A Oh, dear. That is such a hard question and one that I have thought out and thought of very deeply, and I have to admit my bias.

I -- I feel very strongly that children should have contact with their natural parents. On the other hand, this little girl has been with her grandmother since birth, so I have to think about what it would be like for her if she was taken away from her grandmother; and I have to say if it’s one or the other, if there’s no way out of this -- this tangle; then I would have to leave her with her grandmother ... . [ 55 ] This, as Dr.

Dewhurst acknowledged, unfortunately is the price many adopted children have to pay to be adopted. [ 56 ] Second, AR’s evidence before Judge Miller cast doubt on the appellant’s ability to focus on what is best for her children, as opposed to herself: Q ... [I]s there anything else the Court ought to know. ... A That I will do everything in my power to make sure my mother does not have my kids because she should not be with them. [ 57 ] This statement demonstrates that AR does not have the capacity to recognize that Dr. R is taking excellent care of her children.

It conclusively shows that AR harbours anger and hostility towards her mother. Other passages in her testimony reveal that she holds the same resentment for those who have cared for her children when she had been unable to do so. Related parts of the trial transcript do not portray AR in a good light [17] : Q Why do you say that? A Because of ... the way I was brought up and I honestly feel that was my concern is that she’s going to do the same thing to them and I have proven this whole time that I am not mentally unstable.

The biggest problem I have is that they’re not following their own mandate, their own legislation, Children’s Services. ... It says on reasonable grounds, they have to have reasonable ground, while, so far they’ve lied to the Courts, they’ve twisted everything around, but if they don’t stop I will go to—I am trying to take this to the Court of Queen’s Bench because I am tired of the accusations, I am tired of lies. I don’t have any mental health problems, I don’t really have any problems that any other person wouldn’t have, but the biggest thing is I am tired of being under a microscope. Q Okay.

A And I don’t feel that ... [Ms. Perra] is an expert in the field. So if you are not an expert in the field stop treating me like that. ... ... And -- because I have read her court report. That is not a mental health thing. That may be a medical thing, it’s temporary, but it’s not ongoing and I would like if they stopped treating me like that but they haven’t. They’ve just gotten worse. One thing I did want to add ... . [Ms. Perra] works out of two offices ... . ... ... Belmead and West Central.

The West Central office [has] ... all these posters about bullies and I -- every time I had to go there, every time I had to go in front of her I am always thinking, Yeah, your such a hypocrite; you’re the biggest bully there is. They’re always saying to stop with the bullying but that is what I’ve always felt like they’re doing to me and I’ve had enough. Enough is enough. You’re not following your mandate. ... [T]his has dragged on for too long. Q ... [W]hy do you think that working towards the access piece ought to continue? A Because I haven’t done anything wrong. I’m a good mother, ...

I have a job, I have all the requirements that they ask me to do which was to get a job and to have a suitable place and I honestly believe I am a better mother than my own mother is. [ 58 ] Third, AR failed to fully cooperate with the counselling process. When Dr. R reported that GR reacted negatively at home to the two video sessions and Ms. Perra’s supervisor suggested that Dr. R monitor GR’s reaction to watching the video of her mother reading a children’s story, AR opposed this. Her evidence on this point follows: Q ... And do you recall Dr.

Dewhurst giving evidence that indicated that given what was happening she didn’t think it was ethical to proceed with the counselling? Do you remember she said that? A You’re going to try and trick me but you’re not. No, the whole ethical thing was I didn’t want my mother seeing the videos. That was the ethical thing.

D. Access May Be Granted to an Applicant if It Advances the Best Interests of the Child [59] A court determining whether a parent should have access to a child who is the subject of a permanent guardianship order mustask if the requested access is in the best interests of the child. Child, Youth and Family Enhancement Act, s. 2. Will requested access givethe child a happier and better life, taking into account the criteria catalogued in s. 2 of the Child, Youth and Family Enhancement Act, orwill it harm the child? In re McGrath, [1893] 1 Ch. 143, 148 (“The word welfare must be taken in its widest sense”).

If access will makethe child happier or will not harm the child, it should be granted.[18] [60] The Supreme Court of Canada in New Brunswick v. L.M., (SCC), [1998] 2 S.C.R. 534, 555 set out thefollowing foundational principles: In considering whether visiting or access rights should be granted, the judge cannot ignore the fact that he or she has first found itnecessary to remove the child from the parents’ care completely and permanently, so that the child's welfare will not be jeopardized anyfurther. The judge must therefore consider whether more limited contact might still be beneficial for the child.

My consideration of whether access should be granted is based on the following principles. First, there is no inconsistency in principlebetween a permanent guardianship order and an access order. Second, access is the exception and not the rule. Third, the principle ofpreserving family ties cannot come into play in respect of granting access unless it is in the best interests of the child to do so, havingregard to all the other relevant factors. Fourth, an adoption, which is in the best interests of the child, must not be hampered by theexistence of a right of access.

Fifth, access should not be granted if its exercise would have negative effects on the physical orpsychological health of the child. [61] To repeat, access will not be granted unless it promotes the best interests of the child. New Brunswick v. L.M., (SCC), [1998] 2 S.C.R. 534, 535 (“The decision ... concerning access ... must be made in the child’s best interests”). The inquirydoes not focus on what is in the best interests of the parent seeking access.[19] See C.M. v.

Catholic Children’s Aid Society ofMetropolitan Toronto, (SCC), [1994] 2 S.C.R. 165, 207 (“Permanent placement had been established with a family whowishes to adopt S.M. S.M. in under twelve years of age; and further, she refuses to maintain contact with her mother. ... The strongevidence [of the experts] ... leaves little room for any order other than that of Crown wardship without access, in the best interests ofS.M.”); D.F.R. v. Director of Child Welfare for Alberta, 2005 ABCA 344, ¶ 18 (“Access is the child’s right, not the parent’s”).

See ReJ.J.B., 390 N.W. 2d 274, 279 (Minn. 1986) (the court utilized the best interests test to justify termination of parental access rights);Christopherson, “Minnesota Adopts a Best Interests Standard in Parental Rights Termination Proceedings: In re J.J.B.”, 71 Minn. L.Rev. 1263, 1279 (1987) (“[The Minnesota Supreme Court] concluded that ... where the interests of the parent and the child conflict,parental rights must automatically yield to the child’s interests”) & Hill, “The State’s Burden of Proof at the Best Interests Stage of aTermination of Parental Rights”, 2004 U. Chi. Leg.

F. 557, 591 (“because the state and the child share an interest in making sure thatcourts carefully consider petitions for termination, courts should require that the government provide substantial evidence about thechild’s best interests before making termination decisions”). [62] Historical information and the opinions of expert’s in the field are the sources to which a court may profitably turn in makingthis assessment.

But in the end, a judgment call must be made. [63] Elsewhere I have summarized the approach which I find most satisfactory when resolving disputes of this nature: The task ... has two components. One requires the court to identify the statutory criteria and bear them in mind before arriving at aconclusion. This process is advanced by due diligence and thoroughness. Its completion ensures that the decisional aids the Act considersof paramount importance are canvassed.

The second component demands of the adjudicator the exercise of his or her best judgmentbased on accumulated life experiences, which include insights gained as a lawyer, parent, citizen and judge. This is a highly subjectiveundertaking and reasonable and intelligent decision makers may arrive at different conclusions. DPN v. Toews, 2013 ABQB 445, ¶ 126. E.

There Is No Reason To Revoke or Vary The Provincial Court of Alberta’s Decision To Terminate the Conditional Access Order [64] Judge Miller’s reason for judgment give this Court no reason to exercise its jurisdiction under s. 117(2) of the Child, Youthand Family Enhancement Act to revoke or vary the access termination order. [65] Judge Miller was aware that AR maintained that the fact pattern in place on May 17, 2011 and on November 1, 2011 hadremained constant.

Her counsel, in oral argument, asserted that “nothing has changed, the relationship between AR and her mother ... isexactly the same today as it was in May 2001, nothing has changed”.

In making this submission, she joined issue with the director’scounsel who argued that “much has changed”. [66] My review of Judge Miller’s decision leads me to conclude that she was satisfied circumstances had changed between May17, 2011 and November 1, 2011 and August 29, 30 and 31, 2012.[20] Her oral decision recounts the facts which I have identified asdistinguishing the relevant time frames. [67] Judge Miller identified the legal regime which govern the issues presented to her.

She understood that her decision mustreflect the best interests of the children and the considerations listed in s. 2 of the Child, Youth and Family Enhancement Act, includingtheir wishes.[21] [68] Nor did she disregard any material evidence. She recorded the factual divides in the evidence and made findings which

correlated with the opinions of the experts who testified before her. [ 69 ] In addition, she applied the governing principles to the facts on a clear, understandable and cogent manner. [22] Judge Miller exercised sound judgment and her disposition easily survives appellate review. [23] VII. Conclusion [ 70 ] The Court dismisses AR’s appeal and confirms the order of The Provincial Court of Alberta terminating the conditional access order issued on May 17, 2011. Heard on November 22, 2013. Dated at Edmonton, Alberta December 6, 2013. Thomas W.

Wakeling Justice of the Court of Queen’s Bench of Alberta Appearances: Ms. A. Kellett for AR Ms. D. Harwardt Alberta Justice for the Director Mr. H. Henderson Henderson Law Office for SR and GR