RP v. MP, 2014 ABQB 767

Court of Queen ’ s Bench of Alberta Citation: RP v Alberta (Director of Child, Youth and Family Enhancement Act ), 2014 ABQB 767 Date: 20141211 Docket: FL03 43296 Registry: Edmonton Between: RP and MP Applicants - and - Alberta (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. Corrected judgment: A corrigendum was issued on October 13, 2020; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice V.O. Ouellette

_______________________________________________________ I. Introduction............................................................................................................................. 3 II. Background Facts.................................................................................................................... 3 III. Legislation........................................................................................................................... 9 IV.

Issues................................................................................................................................. 10 V. Positions of the Applicants.................................................................................................... 10 VI. Position of the Child.......................................................................................................... 11 VII. Position of the Director..................................................................................................... 11 VIII.

Standard of Review........................................................................................................... 11

a) The Presence or Absence of a Privative Clause................................................................ 12

b) The Purpose of the Tribunal as Determined by

Interpretation of Enabling Legislation.. 12

c) The Nature of the Question at Issue.................................................................................. 12

d) The Expertise of the Tribunal........................................................................................... 13

e) Conclusion on Standard of Review................................................................................... 13 IX. Analysis............................................................................................................................. 13 i. What is meant by further consideration?...................................................................... 13 ii. What must or should the Director consider on “further consideration”?..................... 16 iii. Was the Director’s decision reasonable?...................................................................... 18 X.

Remedy.................................................................................................................................. 20 I. Introduction [ 1 ] This is an application by RP and MP (“Applicants”) for judicial review of the decision of the Director of Child, Youth and Family Enhancement (“Director”), dated May 21, 2014, to remove the child, SS, from the Applicants’ care and home. II. Background Facts [ 2 ] This application is the latest step in a series of processes concerning SS.

Although the detailed facts are outlined below, it is helpful to provide an initial overview in order to provide context to the various decision-making processes. First, in February 2013, the Director decided that SS should be adopted by a family member and removed from her foster home. The Applicants requested a review of that decision; the Administrative Review confirmed the Director’s decision. Next the Applicants filed a Notice of Appeal and an Appeal Panel was convened in October 2013.

Following an extensive and thorough hearing, the Appeal Panel referred the decision back to the Director for further consideration. Finally, in May, 2014 the Director confirmed the earlier decision to move SS from the Applicant’s home so that she could be adopted by family members. [ 3 ] The Applicants are approved foster parents operating an approved residential facility (“foster home”) pursuant to the Child, Youth and Family Enhancement Act , RSA 2000, c C-12 (“ CYFEA ”). The child, SS, was born on June 6, 2010; she was apprehended and placed in the care of the Applicants on June 10, 2010.

She has resided with the Applicants ever since. [ 4 ] What transpired between SS’s birth and the decision of the Director on May 21, 2014 is set out by the Appeal Panel in its decision as contained in the Certified Record of Proceedings (“CRP”). Those facts are as follows: 14 SS was born June 6, 2010, prenatally exposed to drugs and alcohol. At birth, SS tested positive for cocaine. She was apprehended

from her biological mother, LS, on June 8, 2010. 15 SS’s biological father, MK, is 100% African; her biological mother is ½ Jamaican and ½ Aboriginal. SS’s ethnic heritage is therefore ½ African, ¼ Jamaican, and ¼ Aboriginal. 16 MK has two other children, pre-adolescent age, living in Ontario with their biological mother. They are half siblings to SS. 17 At the time of SS’s birth, MK was incarcerated and unable to care for SS. Shortly after her birth, MK was released from his incarceration.

His first contact with SS was when she was 8 months of age. 18 At the time of SS’s birth, maternal grandmother, JS, who attended the birth, was contacted as a possible placement option. At the time, JS informed the Director that she was unable to take SS as she had just adopted SS’s one year old full biological sister, ES.

No other biological family came forward to take SS at the time of her birth. 19 In order to plan for SS’s permanency and in light of the fact that no biological family was able to care for her, SS was placed in the foster-to-adopt home of MP and RP on June 10, 2010 where she has remained until the present.

As with all foster-to-adopt parents, the P’s were informed of the legal risk should biological family come forward at some point and offer to take SS. 20 On May 5, 2011, JS indicated to SS’s caseworker at the time, Walter Smith that she was thinking very strongly of taking SS to be with her. 21 On May 15, 2011, the Slave Lake fires occurred and JS lost her home and possessions and moved to Barrhead. 22 On September 26, 2011, JS indicated by telephone call to SS’s caseworker, Walter Smith, that she wanted SS to come and live with her.

Walter Smith informed JS that SS’s biological father, MK, was still working on SS coming to live with him and was having visits with SS two times per week. JS said transition did not have to happen right away. 23 On November 9, 2011, JS and LS talked to SS’s caseworker about SS coming to live with either of them. They did not want MK to get SS. 24 In February, 2012, JS’s daughter LS, bore a third daughter, PS, half sibling to SS.

JS was unable to take PS due to an upcoming knee surgery, and PS was placed first in one foster home and 4 ½ months later, on June 26, 2012, was placed in the P foster home, where her sister SS lives. 25 On September 24, 2012, SS’s caseworker, Rod Mykituk, received a phone call from Shelley, SS’s great aunt (sister to JS), stating she and her husband were interested in caring for SS permanently.

A visit between Shelley and SS was arranged for October 22, 2012. 26 In November, 2012, JS requested a Family Group Conference, which was held December 13, 2012. 27 The outcome of the Family Group Conference was a plan to move SS to Shelley’s home and slowly transition her to her father MK, should he be allowed to have her.

In the eventuality that SS could not be returned to MK, then great aunt Shelley would adopt her. 28 The Family Group Conference plan was conditionally approved based on successful completion of Child and Youth Information modules, as well as satisfactory Criminal Record Check, Home Assessments and Safety checks for Shelley. 29 On December 14, 2012, Cynthia Murphy, Legal Counsel for the Child, sent a letter via Fax to Sandra Webber, opposing the

decision to move SS immediately to the home of the great aunt. Ms.

Murphy requested that an attachment assessment be completed on SS prior to moving her. 30 On approximately December 19, 2012, JS and her extended family were informed that the Family Group Conference plan to move SS to Shelley’s home had not been approved. 31 Shelley called Region 6 in early January, 2013 to inform them she was no longer interested in caring for SS. 32 On January 7, 2013, JS informed SS’s caseworker, Rod Mykituk that she had decided to adopt SS in order to keep these sisters together. 33 The Permanency Plan for SS to be adopted by JS was approved by the Director in February, 2013.

The final transition of SS to JS’s home would take place when the Permanent Guardianship Order was obtained in June, 2013. 34 On March 19, 2013, the P’s placed a Request for Administrative Review of the Director’s decision to move SS to JS’s home. 35 On April 3, 2013, the Administrative Review Panel issued a decision to confirm the decision of the Director. 36 On April 12, 2013, the P’s filed a Notice of Appeal regarding the decision of the Director to remove SS from their home and place her in the home of JS. 37 A Permanent Guardianship Order was granted in June, 2013.

SS has remained in the P home while the decision to remove SS from the P home is being appealed. (CRP, Vol 14, Tab 116, paras 14-37) [ 5 ] The Administrative Review Panel decision dated April 3, 2013, confirming the Director’s decision to remove SS from the Applicants indicates that the Director’s decision was confirmed for the following reasons: It is the reviewer’s opinion that, although the “RP and MP’s” have provided “SS” with a loving and caring placement, it is felt that the long term benefit of SS being raised and cared for by her natural extended family system and with her siblings is of the upmost importance.

It is for this reason that the reviewers confirmed the Director’s decision. (CRP, Vol 1A, Tab 2) [ 6 ] The appeal of the Director’s decision was heard by the Appeal Panel in October, 2013 over a 6 day period. The Appeal Panel heard a total of 13 witnesses including two experts for the Director, one expert for the child and, one expert for the Applicants.

In addition, the Appeal Panel received numerous documents and literature: see, CRP, Vols 1-14. [ 7 ] The Appeal Panel made the following findings of facts: 76 The Director made a decision on February 25, 2013 to remove SS from the P home, where she has resided since she was three days old, and place her in the home of her maternal grandmother, JS, who has care of SS’s two biological sisters. 77 The Appellants, MP and RP disagreed with the decision of the Director because of the severe trauma, loss and grief the transition would cause SS due to her attachment to RP and to the other members of the P family, as a result of her age at the time of being placed in the P home (three days old) and the length of time she has been with them (3 ½ yrs as of October, 2013). 78 The Appeal Panel finds SS’s biological family indicated to SS’s caseworker on several occasions over a period of two and one half years that they may possibly want SS to come and live with them permanently.

The Appeal Panel finds that no biological family was fully committed to taking SS permanently until January, 2013. The persons interested in taking SS between May 5, 2011 and January 7, 2013 were interchangeable between JS, LS, MK and Shelley.

79 The Appeal Panel finds that attachment in a child’s life is critical to a child’s brain development and to the health of future relationships. In making this finding of fact, the Panel considered the evidence, and placed weight on the attachment testimony by Ms. Fix, Ms. Wotherspoon, Ms. Sliwa together with the literature/research on attachment. 80 The Appeal Panel finds SS is securely attached to RP. In making this finding of fact, the Panel considered the evidence, and placed weight on the testimony by Ms. Fix, Ms. Tkach, Mr. R. Mykituk, Ms. L.

Duke, together with the research on bonding and attachment, and from the written submissions of RP and MP. 81 The Appeal Panel finds that primary attachments are neither interchangeable nor irreplaceable. • In making this finding of fact, the Panel considered the evidence, and placed weight on the attachment testimony by expert witnesses, Ms. Fix and Ms.

Wotherspoon, together with the relevant literature. 82 The Appeal Panel finds SS will suffer severe trauma, grief and loss if her primary attachment to RP and the P family is disrupted as she is securely attached and the “window of opportunity” to attach securely to a new caregiver has passed. • In making this finding of fact, the Panel considered the evidence, and placed weight on the attachment testimony by attachment experts Ms. Fix, Ms. Wotherspoon and Ms. Sliwa, together with the relevant research and literature. 83 Based on the testimony of Mr.

Mykituk and JS, the Appeal Panel finds SS is in the process of developing a positive relationship with her biological grandmother and siblings. 84 The Appeal Panel finds SS does not have a secure attachment to JS. • The Panel findings are based on the amount of time SS has spent with JS, which totals approximately 7 days maximum. (April 2013-October 2013, 16 hrs/month x 7 months). The Panel’s findings are also based on the testimonies of Mr. Mykituk, Ms. Fix, and Ms.

Wotherspoon. 85 The Appeal Panel finds SS’s family to be the P family with whom she has lived effectively since birth and with whom she has developed strong attachments. Psychologically, the P’s are SS’s parents and their children are her siblings. • In making this finding, the Panel has interpreted “family” not simply as a biological or genetic unit. This term is not defined within the CYFEA . In this situation the Panel considers it appropriate to view the concept of “family” from the perspective of the child.

It is the Panel’s view that the strength of the attachments in SS’s life to her primary caregiver RP and to her other family members, informs the concept of “family” from SS’s perspective. • The Panel also based its findings on the literature on psychological parents. • Further, the Panel based its findings on Ms. Duke’s submissions. 86 The Appeal Panel finds SS has a number of significant risk factors increasing the risk of transitioning her at this age and stage of development, including:

a) initial placement disruption;

b) prenatal exposure to drugs (cocaine, crystal meth) and alcohol;

c) prenatal exposure to stress due to lifestyle issues;

d) poor prenatal care; and

e) family history of mental health issues (biological mother is bipolar). • The Panel’s findings are based on the testimonies of Ms. Wotherspoon, Ms. Sliwa, on the materials submitted by the parties, and on the evidence respecting LS’s drug use while pregnant. 87 The Appeal Panel finds that SS is multicultural, and has the right to lean about and participate in all her cultures’ customs and traditions. The Panel finds that she would have exposure to all her cultures if she resides with the P’s. 88 Based on the testimonies of Ms. Fix, Ms.

Sliwa, and the written submissions of the P’s, the Appeal Panel finds that because SS is ½ African, ¼ Jamaican and ¼ Aboriginal, SS will likely have questions about her identity when she becomes an adolescent, regardless of whether she lives with the P’s or JS.

The Panel finds that the P’s are well equipped to address the identity questions when they arise. 89 The Appeal Panel finds that SS did not have a pre-existing relationship with her biological siblings prior to placement with the P’s, and therefore the maintenance of this significant relationship is not to be seen in the same light as children who have already lived together as siblings and have a shared history. The Panel comes to this finding based on the relevant research and literature, as well as the testimony of Ms. Morin. 90 Based on the testimony of RP, DP and Ms.

Gauk, the Appeal Panel finds that SS bas a strong likelihood of maintaining relationships with her biological sisters, even if she remains in the P home. • All experts who provided evidence agreed that if SS is placed with JS, it would be important that she maintains an ongoing relationship with her primary attachment figure and foster family. Based on the expert evidence, and the evidence provided by Ms. Tkach, Mr. R.

Mykituk and JS, the Panel finds that SS has a weak likelihood of maintaining a relationship with her primary attachment figure and the P family if she resides with JS. 91 Based on the research and literature, the findings of fact, as well as the expert testimony of Ms. Sliwa and Ms.

Wotherspoon, the Appeal Panel finds it is in the best interests of SS to remain in the P home. (CRP, Vol 14, Tab 116, paras 76 to 91) [ 8 ] The Appeal Panel then reviewed all of the matters listed in s 2 of the CYFEA as it relates to SS’s best interests (CRP, Vol 14, Tab 116, paras 92 to 95) and came to the conclusion that it was in SS’s best interests to remain in the Applicants’ home.

As a result, the Appeal Panel did not confirm the decision of the Director and instead referred it back to the Director for further consideration. [ 9 ] On May 21, 2014, the Director prepared a document entitled Director’s Review Appeal Panel Decision (Appendix A). The Director’s decision was to remove the child from the Applicants’ foster home as it was in the child’s best interests, thereby upholding the Director’s original decision to remove the child. [ 10 ] It is the May 21, 2014 decision of the Director that is the subject of this judicial review.

The Director’s decision after further consideration may not be appealed to the Appeal Panel ( CYFEA s 120(5.1)) and therefore, the appropriate procedure in the circumstances is a judicial review ( Alberta Rules of Court , Alta Reg 124/210, r 3.24(2) (“ ARC ”)). III. Legislation [ 11 ] The relevant provisions in relation to the issue before the Court are contained in ss 2, 58.1, 117 to 120.2 of the CYFEA . [ 12 ] The administrative review decision of April 3, 2013 was pursuant to s 117.1.

Section 117.1(4) provides as follows: On completing a review, the Director:

a) may confirm, vary or rescind the decision that has been reviewed; … [ 13 ] The appeal to the Appeal Panel of the Director’s administrative review decision was allowed under s 120(2)(a). The powers and procedures of the Appeal Panel are set out in ss 119 (1.1) and (3):

(1.1) An Appeal Panel may (

a) determine whether representations will be oral or by written submission, and

(

b) consider any new evidence that is raised or presented in a hearing. ...

(3) Subject to subsection (1.1), the Administrative Procedures Act applies to the proceedings of the Appeal Panel. [ 14 ] Section 119(2) limits the Appeal Panel to either confirming the Director’s decision to remove or referring the matter back to the Director for further consideration. [ 15 ] If the decision of the Appeal Panel is to refer the matter back to the Director for further consideration, the subsequent decision of the Director is not subject to appeal to the Appeal Panel. Section 120(5.1) reads as follows:

(5.1) Notwithstanding subsection (2), a decision of a director that was made after the matter was referred back to the director for further consideration under section 119(2) may not be appealed to the Appeal Panel under subsection (2). [ 16 ] Also, relevant to this judicial review are the matters to be considered as they relate to the best interests of the child as contained in s 2(

a) to (

p) of the CYFEA . In addition to the best interest of the child are the matters to be considered in relation to adoption, CYFEA , s 58.1, which reads as follows: 58.1 A Court and all persons who exercise any authority or make any decision under this Act relating to the adoption of a child must do so in the best interests of the child, and must consider the following as well as any other relevant matter: (

a) the importance of a positive relationship with a parent, and a secure place as a member of a family, in the child’s development; (

b) the benefits to the child of stability and continuity of care and relationships; (

c) the mental, emotional and physical needs of the child and the child’s mental, emotional and physical stage of development; (

d) the benefits to the child of maintaining, wherever possible, the child’s familial, cultural, social and religious heritage; (

e) the child’s views and wishes, if they can be reasonably ascertained; (

f) the effects on the child of a delay in decision - making; (

g) in the case of an aboriginal child, the uniqueness of aboriginal culture, heritage, spirituality and traditions, and the importance of preserving the child’s cultural identity. [ 17 ] Lastly, rule 3.24 of the Alberta Rules of Court reads as follows: 3.24(1) If an originating applicant is entitled to a declaration that a decision or act of a person or body is unauthorized or invalid, the Court may, instead of making a declaration, set aside the decision or act.

(2) The Court may (

a) direct a person or body to reconsider the whole or any part of a matter, (

b) direct a person or body to reconsider the whole or any part of a decision if the Court has set aside the decision under subrule (1), and (

c) give any other directions it considers necessary. … IV. Issues [ 18 ]

i) What is meant by “further consideration” in s 119(2) of the CYFEA ? ii) What must or should the Director consider on “further consideration”?

iii) Was the Director’s decision reasonable? V. Position of the Applicants [ 19 ] The Applicants argue that the Director’s decision is unreasonable, specifically that the Director failed to properly further consider and investigate what is in the best interests of the child in light of the findings of the Appeal Panel. Further, that the Director erred in showing no deference to the findings of facts and conclusions of the Appeal Panel. They also argue that the Director was not procedurally fair in making further consideration. VI.

Position of the Child [ 20 ] The child argues that the Director should be required to provide deference to the Appeal Panel’s findings or at the very least should not be entitled to dismiss the findings without providing reasons. Further, that if the Director is entitled to ignore the entire Appeal Panel process, then the process itself is an exercise in futility. The child argues that had the legislature intended the Appeal Panel process to be of no significance then they would have done away with it. Since the Appeal Panel process is in place, it has to mean something. VII.

Position of the Director [ 21 ] The Director argues that ss 120(2) and (5.1) of the CYFEA provide him with the authority to make the ultimate decision which is entitled to deference. It is the Director’s position that the Appeal Panel exceeded its jurisdiction in relation to making findings of fact and finding that it was in the child’s best interests to remain with the Applicants.

The Director takes the position that the Appeal Panel’s only decision making authority was to either confirm the Director’s decision or refer it back for further consideration. [ 22 ] The Director argues that because the legislature provided him with the power of the final decision regarding the best interests of the child, he need not give any deference to the findings of the Appeal Panel. Moreover, the Director takes the position that there is no statutory requirement that he should mandatorily adhere to the findings of the Appeal Panel.

The Director further maintains that he is not sitting in review of the Appeal Panel’s decision and as a result, he is not bound by the Appeal Panel’s findings. [ 23 ] Lastly, the Director takes the position that he has carte blanche or an unfettered discretion when it comes to making a decision regarding the best interests of the child, even though his decision was not confirmed by an Appeal Panel. VIII.

Standard of Review [ 24 ] The standards of review in administrative decisions were established by the Supreme Court of Canada in Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190 (“ Dunsmuir ”), (See also, Canada (Citizenship and Immigration) v Khosa , 2009 SCC 12 . [2009] 1 SCR 339). The Supreme Court held that there are two standards of review applicable to judicial review: correctness and reasonableness: at Dunsmuir at para 45 . [ 25 ] The Supreme Court directs that there are two steps involved in making this determination.

First, courts should confirm whether previous decisions have already considered the degree of deference accorded to a particular category of questions. Second, if the first inquiry is not helpful, then the courts must perform the four factor contextual analysis ( Dunsmuir at para 62 ). [ 26 ] There are four factors that must be considered in order to establish which standard of review is applicable: 1. The presence or absence of a privative clause; 2. The purpose of the tribunal as determined by

interpretation of the enabling legislation; 3. The nature of the question at issue; 4. The expertise of the tribunal. Dunsmuir at para 64 [ 27 ] These are things to take into consideration. Some one of the factors may be determinative in a specific case, and it may not be necessary to consider all of them in every determination of standard of review ( Dunsmuir at para 64 ). [ 28 ] Turning now to this case and to first determining whether the standard of review is established in the jurisprudence. Ross J considered a case where a Director made a decision pursuant to s 120(2)(

a) of the CYFEA which was sent to an Appeal Panel who confirmed the decision of the Director: LE v Alberta (Child, Youth and Family Enhancement Act, Appeal Panel) , 2013 ABQB 161 , 559 AR 161 (“ LE ”). This is the same regime considered in the current matter. Ross J found that recent changes in the law required a complete consideration of the applicable standard of review. It is convenient to canvass Ross J’s decision and move through the analysis applicable in this case at the same time. No cases were found that, in turn, considered Justice Ross’ decision. 1. The Presence or Absence of a Privative Clause

[ 29 ] According to Ross J, although the decision of the Appeal Panel is not subject to an appeal to the Court of Queen’s Bench under the express provision of s 120.1 of the CYFEA , there is also no privative clause shielding the Appeal Panel’s decision from judicial review. Consequently, the absence of a privative clause suggested less deference from a reviewing court: LE at para 26 . [ 30 ] In the present case, the Appeal Panel referred the matter – i.e. the Director’s earlier decision – back to the Director for further consideration, rather than for its affirmation or confirmation.

As in LE , there is no privative clause in the CYFEA protecting the Director’s confirmation of an earlier decision, which was referred back to him by the Appeal Panel for further consideration, from judicial review. Accordingly, and as stated in LE , less deference is owed to the impugned Director’s decision, being a decision issued by an administrative decision-maker where a privative clause is absent. 2. The Purpose of the Tribunal as Determined by

Interpretation of Enabling Legislation [ 31 ] In LE , Ross J accepted that the decisions of the Appeal Panel involved a balancing act which ultimately required the Appeal Panel to determine the best interests of the child. As such, the required balancing of interests indicates that deference is owed to the Appeal Panel’s decision ( LE at para 27 ). [ 32 ] In the case at bar, the Director is also required to determine the best interests of the child – an enterprise which engages the balancing of interests: CYFEA s 2.

Thus, the challenged decision in this application is also one which should be accorded deference in light of this factor. 3. The Nature of the Question at Issue [ 33 ] The question at issue in LE dealt with the admission of hearsay evidence which is not an issue in the present matter. However, Ross J also noted that the question involved was one of mixed fact and law and one in which there were questions of

interpretation of the tribunal’s home statute which generally attract a review on a reasonableness standard ( LE at paras 28- 30 ). [ 34 ] In this instance, the question is one of

interpretation of the home statute as the issue relates to what is required of the Director in further consideration of a decision referred back from the Appeal Panel. Again, this factor suggests a reasonableness standard of review. 4. The Expertise of the Tribunal [ 35 ] Ross J pointed out that the Court has previously held that the Appeal Panel has no greater expertise than the courts in determining the best interests of the child. She recognized, however, that the Appeal Panel would make these determinations on a regular basis.

As such, she concluded that this factor was neutral ( LE at para 32 ). [ 36 ] The same can be said in this case. While the courts often make determinations in the best interests of children, so too is the Director mandated to make this consideration every time a decision is made under the CYFEA – the same is required of the Appeal Panel. As such, it is reasonable to find, as Ross J did, that this is a neutral factor. Conclusion on Standard of Review [ 37 ] On review of the factors outlined in Dunsmuir as they apply to this decision making regime, it is clear that the standard of review is one of reasonableness.

It is suggested that the strongest factor in relation to this case is the purpose of the decision maker which is to make determinations in the best interests of the child. IX. Analysis i. What is meant by further consideration? [ 38 ] In order to properly determine whether or not the Director’s decision was reasonable, it is first necessary to determine what the Director is required to consider where an Appeal Panel has sent a decision back to the Director for further consideration.

All parties have agreed that there is no reported case law in regards to the meaning of “further consideration”. [ 39 ] Prior to 2009, an Appeal Panel could confirm, reverse or vary the decision of the Director regarding removal of a child from a foster home. Further, the decision of the Appeal Panel could also be appealed to the Court of Queen’s Bench: s. 119(2) and (6) of the CYFEA . [ 40 ] The Alberta Court of Appeal has provided some direction as it relates to the

interpretation of a statute: that it is necessary to consider the plain meaning of the words. The Court of Appeal has stated the following: As a matter of statutory

interpretation, the words of

an Act are to read in context in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the Legislature: Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes , 4th ed. (Markham: Butterworths, 2002) at 1. That text also sets forth the governing principle of the presumption of coherence, which presumes that the parts of a statute fit together. This principle is explained at 168: It is presumed that the provisions of legislation are meant to work together, both logically and teleologically, as parts of a functioning

whole. The parts are presumed to fit together logically to form a rational, internally consistent framework; and because the framework has a purpose the parts are also presumed to work together dynamically, each contributing something toward accomplishing the intended goal. This presumption is the basis for analyzing legislative schemes, which is often the most persuasive from [sic] of analysis. The presumption of coherence is also expressed as a presumption against internal conflict.

It is presumed that the body of legislation enacted by a legislature does not contain contradictions or inconsistencies, that each provision is capable of operating without coming into conflict with any other. AD v Alberta ( Child, Youth and Family Enhancement Act , Director) , 2010 ABCA 83 at para 22 , 317 DLR (4th) 299 [ 41 ] Since it is to be presumed that the legislature did not intend to create contradiction or inconsistency in its legislation, it would be useful to review why the changes were made in the first place.

In that regard, a review of Alberta Hansard provides some insight as to why the Legislature sought to limit the Appeal Panel’s powers. [ 42 ] In

summary, the Legislature proposed the amendments to remove the power of the Appeal Panel to reverse or vary the decision of the Director because it wanted the Director to make the final decision regarding the placement of a child.

This was considered desirable since the Director would ultimately be liable for that decision. [ 43 ] During the second reading of the Bill, Cal Dallas, Member for Red-Deer South, made the following comments regarding the amendments to the legislation: Amendments to the legislation will ensure that the responsibility for the final decision about the placement of a child or a youth lies with the ministry's director of child welfare, who is ultimately liable for the placement decision.

It also helps make certain that decisions such as those concerning the placement of a child in a foster home or a residential facility can be confirmed by the panel or sent back to the director to be reconsidered by a senior ministry official who was not the original decision-maker. This will ensure that the matter is thoroughly and appropriately reviewed, and these changes will continue to allow for decisions made on behalf of children in care to be scrutinized. Hansard , 18 November 2008 at 1922 [ 44 ] However, a further reading of the Alberta Hansard and Mr.

Dallas’ answers to opposition members’ concerns clearly indicate that notwithstanding that the final decision was left to the Director, the Appeal Panel would still play a significant role. Mr. Dallas said the following: As I mentioned during the second reading, the panel will assume a significant role in holding the director accountable for the process by which decisions like those concerning the placement of a child in a foster home are made. The appeal panel will now have the authority to return matters to the director to be reconsidered.

Policies and procedures will also be put into place to ensure that the matter is considered by a senior ministry official who was not the original decision-maker. Hansard , 25 November 2008 at 2061 Mr. Dallas then went on to indicate that the proposed changes would not remove the right of appeal. He stated the following: Members should take note that the proposed changes to the process do not remove the right of appeal. Individuals are still able to appeal to an independent appeal body. [ 45 ] Mr.

Dallas clarified what significant role the Appeal Panel would have: Also, as was clearly indicated, the appeal panel will be able to redirect the review, perhaps looking for more information, seeking clarity around the process, and contesting the process that the director arrived at for a decision, ultimately, moving that to an alternative position of higher authority to review those matters. Hansard , 25 November 2008 at 2063. [ 46 ] Even though the amendments clearly leave the final decision to the Director, it would appear that the Legislature intended that there be oversight from the Appeal Panel. Mr.

Dallas said that: One of the other issues that I think was raised, that I have a note on here, is the changes to the powers of the appeal panel. We always like to see civilian oversight on those panels, but I think it also needs to be noted that when you're dealing with a sector that requires a particular expertise, you need to make sure that that civilian oversight is also mixed with expert oversight. Hansard , 27 November 2008 at 2123. [ 47 ] Therefore, the Legislature intended to give the Director, and not the Appeal Panel, the ultimate power to decide the removal of a child from a foster home.

However, it is also true that the Legislature did not intend on making the Appeal Panel meaningless, futile, or a complete waste of time. [ 48 ] Although the Legislature clearly intended to have the Director make the final decision after further consideration, it also clearly intended the Appeal Panel’s role to be a significant one in that process. Specifically, the Legislature contemplated that the Director, on being required to do further consideration, would accept and recognize the significant role of the Appeal Panel.

That role, on review of the Hansard excerpts, includes: 1) To scrutinize the Director’s decision; 2) To hold the Director accountable for the Director’s process;

3) To seek clarity around the Director’s process; 4) To contest the Director’s process; 5) To redirect the review; 6) To seek and obtain more information; and 7) To provide civilian oversight of the Director’s decision. [ 49 ] The Director has, on previous occasions, characterized the Appeal Panel’s purpose as providing “an opportunity for children, guardians and caregivers affected by decisions of the Director to access a fair, impartial and independent review of the decisions affecting them” ( LE at para 27 ).

I agree with the findings of Ross J in LE that the Appeal Panel performs a balancing act by taking into account the Director’s wishes and the best interests of the child. Further, that the Appeal Panel is also mandated to consider the best interests of the child: CYFEA , s 2). [ 50 ] The jurisdiction of the Appeal Panel has been described by the Alberta Court of Appeal as a “broad scope of review”.

That scope of review can also include an examination as to whether the Director’s decision is sufficient ( Alberta (Director of Child, Youth and Family Enhancement) v BM , 2009 ABCA 40 at paras 19-21 , 448 AR 53 [“ BM ”] ). Although the BM decision was prior to the amendments which limited the remedial jurisdiction of the Appeal Panel, it would not change the Appeal Panel’s “broad scope of review”. [ 51 ]

Section 2 of the CYFEA requires that the Director’s decision relating to the child must be done in the best interests of the child. However, the determination of the best interests of the child must be done in compliance with the CYFEA which includes the significant role of the Appeal Panel and in a fair and just manner to those persons whose interests are affected. ( LE at para 50 ) ii.

What must or should the Director consider on “further consideration”? [ 52 ] No policy or procedure currently exists that provides guidance to the Director as to what material, if any, must form part of the further consideration. [ 53 ] Having regard to the significant role of the Appeal Panel to either confirm the decision of the Director or refer it back to him for consideration, the Director must consider certain matters.

The first and obvious matter to be seriously considered and given some deference, are the Appeal Panel’s findings of fact. [ 54 ] In that regard, the Legislature saw fit to allow the Appeal Panel two options. The first, to make a determination as to whether the Director was correct in either removing a child from a foster home or not removing that child from the foster home. In order to make that determination, the Appeal Panel is required to ensure that the process used by the Director was fair and just. In doing this, the Appeal Panel is entitled to obtain further information as required.

In order for the Appeal Panel to confirm a Director’s decision, it must be satisfied that the decision is in the best interests of the child. [ 55 ] The legislation does not provide the Appeal Panel with the authority to overturn the Director’s decision – it can either confirm the Director’s decision or send the matter back to the Director for further consideration. Further, to require the Director to be bound by the determination or opinion of the Appeal Panel as to the best interests of the child based on the findings of fact would be contrary to the intent of the Legislature.

The Legislature intended that the final decision be with the Director. Moreover, to allow the contrary determination or opinion of the Appeal Panel regarding the best interests of the child to be determinative would have the effect of usurping the Director’s statutory authority. [ 56 ] If the Appeal Panel is unable to confirm the Director’s decision because the panel is not satisfied that the Director’s decision is in the child’s best interest, then the Director is not entitled to ignore or simply give lip service to the Appeal Panel’s findings on further consideration.

This is because the Legislature intended that the Appeal Panel scrutinize, hold to account and review, with the benefit of further resources including expert evidence, the Director’s decision and the Director’s process in coming to that decision. [ 57 ] The Director must not ignore the Appeal Panel’s findings of fact. The Appeal Panel is presented with documentation as well as witness and expert testimony. The Director is one of the main parties before the Appeal Panel presenting witnesses including experts.

It would therefore be improper and unreasonable for a Director to only accept the evidence presented before the Appeal Panel of its own witnesses and experts while ignoring experts and witnesses called by other interested parties. To do so would be to give no deference to the findings to the Appeal Panel who had the opportunity to weigh and assess all of the evidence and arguments before it.

Furthermore, it would render useless the purpose of convening the Appeal Panel and conducting the hearing of evidence from other parties. [ 58 ] Even where the Appeal Panel disagrees a decision is in the best interests of the child, there may be occasions where an Appeal Panel sends a decision back for further consideration. For example, there may be insufficient facts supporting the Director’s decision.

Likewise, the panel might conclude that uncertainty regarding the best interests of the child requires further inquiry or assessments. [ 59 ] It is also improper and unreasonable for a Director to come to a different finding of fact than the Appeal Panel on the basis of a review of the transcript of the proceedings and documentation that was before the Appeal Panel.

Where the Director is of the opinion that the Appeal Panel erred in fact or in law, then the appropriate course of action would be for the Director to make an application for judicial review. [ 60 ] The Director should also further consider steps or processes which have not been as thoroughly completed or even conducted at all, as can be identified by reviewing the Appeal Panel process. An example of such a process is an attachment study. The facts of each case will determine whether there should be further assessment or studies.

[ 61 ] To summarize, the Director must, at least, take into account the following matters after being directed to further consider the Director’s previous decision regarding whether to remove or not to remove a child in care.

This list is not exhaustive and the Director should further consider any other matters which may be relevant and in compliance with the CFYEA : • The Director must consider any and all new information disclosed subsequent to the initial decision. • The Director must consider any evidence disclosed before the Appeal Panel including the testimony of witnesses, expert witnesses, expert reports, written submissions and literature. • The Director must give some deference to the findings of fact of the Appeal Panel who heard the testimony of witnesses under oath and also received expert testimony and related literature.

The amount of deference to be given to the findings of fact of the Appeal Panel may vary depending on the number of witnesses, the relevance of the evidence of the witnesses, the amount of documentary evidence and the reasonableness of the findings of fact looked at through the reasoning of the Appeal Panel. The Director is not bound by the final determination of the Appeal Panel regarding the best interests of the child.

However, the Director must give some deference to the Appeal Panel’s reasoning as to how it reached its conclusion regarding the best interests of the child. • The Director must take such further action as may have been identified as lacking through the Appeal Panel process if such action is potentially determinative of the child’s best interest. [ 62 ] As I stated earlier, the above list is non-exhaustive as the facts of each case may require other considerations not mentioned above. This is a matter of reasonableness; there may be more than one defensible decision in light of the relevant information.

As such, these decisions ought to be afforded deference where they are reasonable ones. iii. Was the Director’s decision reasonable? [ 63 ] The Supreme Court has provided direction on what it means to review a decision on the reasonableness standard: A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. Dunsmuir at para 47 [ 64 ] In order to determine if the Director’s decision is reasonable – came within the range of acceptable and rational solutions – it is necessary to review the basis on which the Director made the decision.

The material the Director had for further consideration was the decision of the Appeal Panel dated March 4, 2014, all of the material, Volumes 1-14, that were before the Appeal Panel, and a transcript of the six day proceedings before the Appeal Panel. It is interesting to note that the Director refers to his decision as a review of the Appeal Panel decision and merely refers to the material above as being reviewed.

In fact, the Director titled the decision “ Director’s Review Appeal Panel Decision ”. [ 65 ] The general structure of the Director’s written decision is as follows: • A review of the materials outlined above • A

summary of the background including an overview of the April 2013 Administrative Review Decision • A statement of findings on review of the documentation • A “Director’s Statement of Considerations” [ 66 ] As noted above, the Director first reviewed the materials and then set out the background. The background

section is very limited and finished with an overview of the Administrative Review decision dated April 3, 2013. [ 67 ] In the review of the April 2013 decision, the Director did not refer to the actual finding of the Administrative Review team, which was the following: It is the reviewer’s opinion that, although the “RP and MP’s” have provided “SS” with a loving and caring placement, it is felt that the long term benefit of SS being raised and cared for by her natural extended family system and with her siblings is of the upmost importance.

It is for this reason that the reviewers confirmed the Director’s decision. The importance of not mentioning the actual reasons of the Administrative Review in confirming the Director’s decision is unclear. However, it would appear on reading the decision of the Administrative Review was that there was only one reason given as to why the child should be removed from the current foster home.

It would appear that the Director was in agreement with the Administrative Review as at page six of the Director’s Review (Appendix A), the Director stated the following: Therefore, it is my intention to uphold the Director’s decision to remove the child SS from the P foster home. [ 68 ] The significance of the decision to uphold the original decision of the Director is that the evidence and witnesses before the Appeal Panel were not given any consideration.

The Director appears to be agreeing with the original decision, which seems to have failed to take into account all of the matters required for consideration of the best interests of the child under s 2 and s 58.1. Specifically, the Director appears to have ignored the relevant matters as contained in ss 2(b), 2(i)(iv), 2(i)(v), 2(n), 2(

o) as well as s 58.1(b), (c), (f). [ 69 ] The Director then went on to make a statement of findings after reviewing the documentation. The Director’s statement of

findings makes no reference to the findings of fact of the Appeal Panel: see above para 4. [ 70 ] The Director went on with the “Director’s Statement of Considerations”. The Director indicated that in keeping with s 2 and s 58.1, he gave consideration to issues he identified.

I note that the first consideration listed is one unrelated to the child - the explanation as to why JS couldn’t have come forward earlier to show her commitment to SS. [ 71 ] A further consideration listed appears to be a criticism that none of the expert witnesses, including the Director’s expert, conducted an attachment assessment on the child.

Of course, the evidence disclosed that there was a request by the child’s counsel in December, 2012 for an attachment assessment and for whatever reason the Director chose to not go forward with one. [ 72 ] A further consideration listed by the Director is that the evidence, including the expert evidence, before the Appeal Panel was contradictory in relation to several topics.

However, the Director did not elaborate as to why the Appeal Panel’s conclusions or the findings of fact regarding these experts were incorrect. [ 73 ] The Director also stated as part of his Statement of Considerations that the child will experience a grief and loss whether she remains with her current foster home or is removed from them. Further, in addition and related to this, the Director addressed the issue of exposure to her Aboriginal heritage as well as her African and Jamaican heritage.

However, it should be noted that the Director never mentioned the reasons for decision of the Appeal Panel which specifically addressed the risks and more particularly the risks regarding loss of cultural identity as extensively detailed in para 92 (c), pages 68 to 71 (CRP, Volume 14, Tab 116). [ 74 ] The question is whether the decision of the Director is justified, transparent and intelligible and also whether it falls within a range of outcome which is defensible. [ 75 ] I find that the Director’s decision is not reasonable. The decision totally ignores the findings of the Appeal Panel.

Further, the decision fails to address those findings and reasons which are the issues that are to be specifically addressed regarding the best interests of the child, both under s 2 and s 58.1. [ 76 ] Further, the Director’s decision is not reasonable because it lacks transparency.

The Director’s decision is premised on giving no deference whatsoever to the findings of the Appeal Panel, particularly given the manner in which he explained the evidence of the expert witnesses, he specified that the evidence was contradictory, yet failed to specify which expert the Director would be relying on. [ 77 ] Lastly, the decision of the Director is not defensible because as noted by the Director, there has been significant delay in establishing permanency for this child, to which the Director acknowledges attachment becomes a factor.

Yet, it is the Director who has chosen not to conduct an attachment assessment for SS.

A review of the Appeal Panel’s decision and the evidence presented to the Appeal Panel shows that almost all of the witnesses – and more particularly all of the experts – described that the passage of time clearly becomes an issue regarding attachment. [ 78 ] The decision of the Director is further not defensible—in that he chose to ignore the finding of the Appeal Panel that found that SS will suffer “severe trauma, grief and loss if her primary attachment to RP and the P family is disrupted…” The Director chose not to respond to this finding.

Instead, the Director referred to this issue in his Statement of Considerations , by stating the child will suffer grief and loss in any event of being removed or not.

In that regard, the Director stated that the child will suffer grief and loss if she remains in the P home: “Alternatively, SS will experience grief and loss if she remains in the P home – loss of the day-to-day relationships with her siblings and extended family, loss of immersion in her culture and community and the loss of inherent treaty rights.” As stated earlier, the Appeal Panel dealt with those issues, yet the Director totally ignored the findings. X. Remedy [ 79 ] The application for Judicial Review is granted. The Director’s decision to remove the child from the foster home is set aside.

The matter is referred back to the Director for further consideration. [ 80 ] Pursuant to the Court’s authority under ARC , rule 3.24(2)(c), I give the following direction:

a) The Director will immediately take the necessary steps to obtain an attachment assessment in relation to the child.

b) The Director’s further consideration shall take into account the results of the attachment assessment and apply the appropriate deference to the Appeal Panel’s findings of fact and reasoning. [ 81 ] The parties may speak to costs if agreement cannot be reached. Heard on the 25 th day of November, 2014. Dated at the City of Edmonton, Alberta this 11 th day of December, 2014.

V.O. Ouellette J.C.Q.B.A. Appearances: Ms. April Kellett for the Applicants Ms. Tanya Kuehn for the Respondent Ms. Cynthia A. Murphy for the Child _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Mr. Justice V.O. Ouellette _______________________________________________________ Appendix A has been removed from the electronic versions of this decision and is available on the Court file.