RP v Alberta (Director of Child Youth and Family Enhancement), 2016 ABQB 306

Court of Queen’s Bench of Alberta Citation: RP v Alberta (Director of Child Youth and Family Enhancement), 2016 ABQB 306 Date: 20160531 Docket: FL03 43296 Registry: Edmonton Between: RP and MP Applicant - and - Alberta (Director of Child, Youth and Family Enhancement) Respondent Restriction on Publication Identification Ban – See the Child, Youth and Family Enhancement Act, section126.2. No one may publish the name or photograph of a child, or of the child's parent orguardian, 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 bepublished. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice W.N. Renke [delivered orally May 17, 2016] _______________________________________________________ The issue on this appeal is not one which normally confronts us. It arises out of a rather sad saga which discloses how one small boy canbe caught in a legislative and administrative net and have to come to the highest court in the land to extricate himself.

The chronologicalhistory of the matter is a procedural nightmare: Beson v Director of Child Welfare (Newfoundland), (SCC), [1982] 2SCR 716, Wilson J at 717. [T]he best interests of children are the “paramount considerations” that are to govern the statutes. This may be taken as a codification of

the longstanding principle of parens patriae . The courts cannot simply give lip service to this principle: we must take it seriously, even if there may be no single “right answer” as to where SS’s best interests may lie at the end of the day. I do not think it is an exaggeration to say that a decision about the adoption or custody of a child is the most important decision that these courts make, at least on the civil side: LM v. British Columbia (Director of Child, Family and Community Services) , 2016 BCCA 109 , Newbury JA at para 17. [ 1 ] At the centre of this controversy is a little girl, SS.

She was apprehended by the Director when she was two days old. She was placed in the care of the applicants RP and MP (the Foster Parents) pursuant to a “foster to adopt” arrangement when she was four days old. At the time, no biological relatives of SS were able to take her into their care. SS’s Grandmother was interested in adopting SS, but circumstances prevented her from moving this plan forward until early 2013 when SS was about two and a half years old. The Director approved SS’s move from the Foster Parents’ home to Grandmother for adoption. The Foster Parents sought an Administrative Review.

The Director’s decision was confirmed in April 2013. The Foster Parents appealed to an Appeal Panel. In March 2014, the Appeal Panel found that SS’s interests were best served by remaining with the Foster Parents and referred the matter back to the Director for reconsideration. The Director issued a reconsideration decision in May 2014. In December 2014 this decision was set aside in judicial review proceedings initiated by the Foster Parents. The Director’s appeal to the Court of Appeal was dismissed in May 2015. The Director has not issued another reconsideration decision.

The Foster Parents commenced the present judicial review application because the reconsideration did not occur. The application was heard in April 2016. SS is now nearly six years old. She has been in the continuous care of the Foster Parents. [ 2 ] Two main issues must be determined. First, are there grounds for judicial review? Second, if there are grounds for judicial intervention, what remedy is appropriate? To address these questions, I will set out (

I) the basic facts and procedural history, then consider (II) preliminary issues, including the standard of review, (III) whether the facts support judicial review based on the Director’s action or inaction, and (IV) if there are grounds warranting judicial intervention, the appropriate remedy. Table of Contents I. FACTS AND PROCEDURAL HISTORY .. 5 II. PRELIMINARY ISSUES . 12 A. Standard of Review .. 12 B. Best Interests of the Child . 13 C. Guidance from the Court of Appeal 16 III. THE DIRECTOR’S CONDUCT . 17 A. Inaction as a Ground for Review .. 17 B. Time . 18 1. Passage of Time . 19 2. Process Delays . 20 3.

Attachment Assessment 21 4. Settlement Efforts . 22 5. Further Information . 23 6. Collateral Efforts . 24 C. Reluctance . 24 IV. REMEDY .. 26 A. Jurisdiction . 26 B. Jurisdiction respecting Adoption . 28 1. Beson . 28 2. Impediments to Extending Jurisdiction to Ordering Adoption? . 32 (

a) overriding legislation . 32 (

b) undermining the statutory adoption framework . 33 (

c) dispensing with Director’s consent 34

C. Appropriate Remedy . 35 1. Fairness to Grandmother 36 2. Evidence before the Court 38 (

a) Appeal Panel as fact-finder 38 (

i) expertise . 38 (ii) reliability . 39 (

b) issues faced by the Appeal Panel 40 (

c) stale evidence . 41 (

d) conflicting evidence . 42 3. Missing Evidence . 42 (

a) evidence not received . 43 (

b) incomplete evidence respecting Grandmother and the Foster Parents . 43 (

c) evidence respecting SS . 45 (

i) Racine v Woods , [1983] 2 S.C.R. 173, Wilson J at 187 . 48 (ii) Catholic Children's Aid Society of Metropolitan Toronto v M. (C.) , [1994] 2 S.C.R. 165, L’Heureux-Dubé J at 202: 48 (iii) Milton v Letch , 2013 ABCA 248 . 49 (iv) D.L.W. v. H.A.D. , 2015 ABCA 203 . 49 (

v) F.M. v S.S ., 2010 ABQB 195, Sanderman J . 49 4. Best Interests of SS . 51 (

i) ss. 58.1(a), (b), and (c) 51 (ii) ss. 58.1(e) 53 (iii) ss. 58.1(

g) and (d) 53 5. Order 54 COSTS . 54 5 I. FACTS AND PROCEDURAL HISTORY [ 3 ] SS was born in June 2010. “SS’s father is of African heritage. Her mother is of Jamaican and Aboriginal heritage. SS is therefore of one-half African, one-quarter Jamaican and one-quarter Aboriginal descent:” RP v Alberta (Director of Child, Youth and Family Enhancement) , 2015 ABCA 171 , Bielby JA at para 11 [ RP v Alberta, 2015 (CA) ]. Since 2012, SS has been represented by counsel. [ 4 ] JS, SS’s maternal grandmother (Grandmother), attended her birth.

Grandmother is of Aboriginal descent. [ 5 ] SS was prenatally exposed to drugs and alcohol. Cocaine was found in her blood at birth. She was apprehended by the Director when she was two days old. [ 6 ] Grandmother was contacted as a possible placement option. She was unable to take SS at this time because SS’s older sister (ES) had been placed with Grandmother as a Permanency Placement – Adoption three months earlier. The adoption caseworker had advised against SS being placed with Grandmother until ES’s adoption was finalized.

ES’s adoption was finalized in November 2010. [ 7 ] No other biological family members came forward as placement options for SS at the time of her birth. Her father was in prison. While he visited SS in 2011, he has not sought custody of SS. He has two children with a different mother. These “half-siblings”

live in Ontario. [ 8 ] SS was placed with the Foster Parents in June 2010 when she was four days old. The Foster Parents are approved foster parents operating an approved residential facility under the Child, Youth and Family Enhancement Act (CYFEA). Her placement was pursuant to a “foster-to-adopt” arrangement. The Foster Parents were advised and they appreciated that such arrangements carried no guarantee that they would be entitled to adopt SS. [ 9 ] Commencing in May 2011, Grandmother and other biological family members expressed interest in having SS live with them.

They were in contact with SS’s caseworker. [ 10 ] However, on May 15, 2011, the Slave Lake fires intervened. Grandmother lost her home and possessions. She moved to her father’s farm but was forced to move a second time because of fire. [ 11 ] In late 2012, Grandmother’s sister (Great Aunt) told SS’s case worker that she wished to care for SS permanently. In December 2012, planning began to transition SS to Great Aunt’s care.

On or about December 19, 2012, Great Aunt and Grandmother were advised that the plan to move SS to Great Aunt’s home was not approved. [ 12 ] In January 2013, Grandmother decided to adopt SS and so advised SS’s caseworker. By this time, Grandmother had adopted not only SS’s elder sister (ES) but her younger (half) sister (PS). [ 13 ] A Permanency Plan was developed for SS to be adopted by Grandmother. This plan was approved by the Director in February 2013. It was contemplated that SS would transition to Grandmother’s home following the issuance of a Permanent Guardianship Order for SS.

At the time of this approval, SS was two and a half years or some 30 months old. [ 14 ] The PGO for SS was granted in June 2013. [ 15 ] Before the PGO was granted, on March 19, 2013, the Foster Parents requested an Administrative Review of the Director’s decision to move SS to Grandmother’s home, under s. 117.1 of the CYFEA. [ 16 ] On April 3, 2013, an Administrative Review Panel confirmed the Director’s decision. [ 17 ] On April 12, 2013, the Foster Parents appealed that decision to an Appeal Panel under ss. 119 and 120 of the CYFEA. [ 18 ] On October 9, 2013, SS’s Permanency Worker received a letter from Child, Adolescent and Family Mental Health (CASA), respecting an assessment by of SS by the Infant and Preschool Team on September 11, 2013.

CASA advised that “[t]he recommendation that these professionals had was that a permanent placement decision [for SS] should be made as efficiently as possible:” Affidavit of Patti Ferguson (a Regional Manager for Child and Family Services), February 26, 2015 (Ferguson Affidavit), Exhibit J. [ 19 ] Following a hearing held on October 16 – 18 and October 21 – 23, 2013, the Appeal Panel released its decision on March 4, 2014. The Appeal Panel found that it was in SS’s best interests to remain in the Foster Parent’s home.

The Appeal Panel referred the Director’s decision back to the Director for further consideration. In RP v Alberta, 2015 (CA) , Justice Bielby summarized the Appeal Panel’s process and decision as follows at para 15: [15] The Appeal Panel heard extensive oral evidence over six days in October 2013. Thirteen witnesses testified, including two experts for the Director, one for SS and one for the Ps. In the result, the Appeal Panel did not confirm the decision of the Director.

In lengthy written reasons, it made findings of fact and expressly addressed each of the enumerated considerations to be made in determining the best interests of a child as set out in s 2 of the CYFEA.

The Appeal Panel concluded: [93] ... it is in SS’s best interests to remain with the Ps, based on the rationale that SS has a secure attachment to RP [the mother] and the P family, and to transition her after 3 ½ years of being a part of the P family since birth, would cause SS untold trauma, grief and loss; and that the potential harm to SS’s future ability to attach again, as well as the potential harm to her mental, emotional and physical health, are not worth the risk. [94] The CYFE Appeal Panel analyzed all the research and literature submitted ... together with the evidence of expert witnesses ... and submissions/testimony by all other parties to the appeal, to come to a determination that the risks of removing SS from her current home of 3 ½ years and disrupting her attachments outweigh the benefits to be gained by transitioning her to the home of her biological grandmother and siblings...

Under s. 119(2), the Appeal Panel did not have the authority to confirm, reverse, or vary the Director’s decision. Its jurisdiction was limited to confirming the Director’s decision or referring it back to him for “further consideration”.

The Appeal Panel referred the decision back to the Director for further consideration. [ 20 ] On May 21, 2014, the Director issued his “Director’s Review Appeal Panel Decision – RD & MP (JS)” that confirmed the Director’s decision of February 2013 (the reconsideration decision), reproduced following the decision of Ouellette J in RP v Alberta (Director of Child, Youth and Family Enhancement Act) , 2014 ABQB 767 [ RP v Alberta, 2014 (QB) ].

In the reconsideration decision, the Director’s background comments included the following at p. 23: • SS has the potential to be registered with Bigstone Cree Nation (under Bill C-31) if she is adopted by [Grandmother]; otherwise, due to Bill C-31, she is not eligible for registration. • Although it is known that SS was exposed prenatally to street drugs, SS has not been formally diagnosed by a medical professional with any developmental delays or disorders that may be attributed to prenatal exposure to drugs or alcohol .... • SS has never been placed with another caregiver, has never been on an overnight visit with another foster parent/respite provider,

and has never been on an overnight visit with extended biological family .... Under the heading “Director’s Statement of Findings” the Director’s findings included the following at p. 24: [1] SS has benefited from placement in a stable family environment where her needs were met. She spent her first years in a home where she was nurtured and raised free from any concerns about abuse and neglect.

The [Foster Parents] are an experienced foster home who have completed a substantial amount of training and are approved as both foster care and adoption homes .... [4] [Grandmother] has not wavered in her commitment to having SS placed in her home since her birth. [Grandmother] remained persistent and driven in her desire to have SS placed with her, despite multiple setbacks and miscommunications.

Documentation clearly demonstrates that in the first six months of [SS’s] life, [Grandmother] requested access visits multiple times and immediately following the finalization of her adoption of ES, [Grandmother] requested that SS be placed with her. [Grandmother] continued to regularly and frequently [request] both access and for SS [to] be placed with her right up until the time the decision was made to move SS to [Grandmother’s] home for permanency. Once the decision was made to move SS to [Grandmother’s], [she] promptly requested that the transition process begin.

Under the heading “Director’s Statement of Considerations” the Director’s remarks included the following at p. 25: • Both the [Foster Parents] and [Grandmother] have been approved as adoptive homes; both have access to all training that is offered to caregivers by the Ministry of Human Services, and both, in the event of adoption, would be eligible to receive financial and casework supports under the Ministry’s Supports for Permanency Program .... • None of the expert witnesses for any party assessed SS; no attachment assessment for SS was submitted by any party. [ 21 ] Grandmother had regular access with SS from the beginning of 2013: “Her access became court-ordered in June 2014.

For approximately one year [SS] travelled to Slave Lake to visit her grandmother and two sisters in their home. [SS] slept overnight at her grandma’s for many of those visits:” Ferguson Affidavit at para 7. In June 2015 the court-ordered access arrangements changed (a few details are provided below). Grandmother travelled to Edmonton with SS’s sisters for the visits.

The length and frequency of visits diminished because of the needs of SS’s sisters: Ferguson Affidavit at para 8. [ 22 ] The Foster Parents applied to the Court of Queen’s Bench for Judicial Review of the Director’s reconsideration decision on May 30, 2014. [ 23 ] On November 25, 2014, Grandmother’s application to be added as a party or intervener in the judicial review proceedings was denied by Justice Ouellette (Authorities of the Director - Applicant for Stay, tab 2).

This decision was not appealed. [ 24 ] Following a hearing on November 25, 2014, in a decision released on December 11, 2014, Justice Ouellette set aside the Director’s reconsideration decision and referred the matter back to the Director for further consideration.

Justice Ouellette also ordered that the Director immediately obtain an attachment assessment respecting SS and that the Director’s reconsideration take into account the results of the attachment assessment, according appropriate deference to the Appeal Panel’s findings of fact and reasoning: RP v Alberta, 2014 (QB) at paras 79 and 80. [ 25 ] The Director appealed Justice Ouellette’s decision to the Court of Appeal.

The Director did not apply for a stay of any elements of Justice Ouellette’s decision pending appeal. [ 26 ] On January 27, 2015, the Director proposed to the parties and Grandmother’s counsel that, notwithstanding the appeal, a contested adoption hearing be brought in the Court of Queen’s Bench. Counsel for the Director stated that “… the Director will be preparing the necessary paperwork to file a Petition for Adoption by [Grandmother]. The Petition would be served on the [Foster Parents], and our expectation is the matter would proceed as a contested Adoption hearing ….

The Director would like to initiate the adoption process just to ensure that if a hearing ends up being necessary, it can be held at the earliest opportunity:” Ferguson Affidavit at para 10 and Exhibit A. [ 27 ] The Foster Parents objected to the proposed contested adoption procedure through counsel.

This procedure was not initiated. [ 28 ] Counsel for the Director had confirmed on January 27, 2015 that, again notwithstanding the appeal, “the Director has every intention to obtain the attachment assessment which the Court of Queen’s Bench directed;” and “[t]he Director will reconsider the plans for [SS] as appropriate, once the assessment has been completed:” Ferguson Affidavit at para 10 and Exhibit A. [ 29 ] The appeal was heard on March 30, 2015 and the reasons were filed on May 19, 2015.

Justice Bielby noted that the appeal raised, “apparently for the first time on appeal, the scope of the Director’s obligations upon an Appeal Panel remitting his decision back to him for ‘further consideration’ under s 119(2) of the CYFEA:” RP v Alberta, 2015 (CA) at para 2. The Court of Appeal dismissed the appeal and confirmed that “s. 119(2) unambiguously confers on the Appeal Panel the jurisdiction to make fact findings and arrive at a decision” and that the Appeal Panel’s findings and decision attract deference from the Director; he is not entitled to ignore the findings and decision (para 70).

At para 84, the Court of Appeal confirmed that [84] The matter must be remitted back to [the Director] to reconsider in light of the contents of an attachment assessment which I understand is currently in the process of being obtained, and upon giving due deference to the findings of the Appeal Panel by following the directions contained in this decision. [ 30 ] Steps were taken by the Director commencing on January 14, 2015 to retain a professional to conduct the assessment. The Director proposed professionals; the Foster Parents proposed others (see Ferguson Affidavit at paras 25 – 36).

I should observe that, in my opinion, both sides were attempting to secure a competent qualified assessor – the best available – who could complete the assessment in a timely manner.

[ 31 ] On April 13, 2015, the Director advised that Dr. Stephen Carter would be retained to complete the assessment: Ferguson Affidavit at para 37. The Service Agreement with Dr. Carter, however, contemplated not only an attachment assessment but a bilateral or parenting assessment: Ferguson Affidavit, Exhibit Q. Dr. Carter’s position was that he could not give an opinion about the “custody” of a child without doing a full assessment of the possible caregivers: Ferguson Affidavit at para 39 and Exhibit R. In Exhibit R, an e-mail to the CFSA Permanency Worker, Dr.

Carter wrote as follows: I would respectfully suggest that the desire for “an attachment assessment”, while intuitively important, does not meet the needs of the child in this situation. Your desire is to decide which caregivers are the most appropriate to provide care for [SS].

Within this, attachment is undoubtedly a factor but it is no more important than looking at the overall needs of the child, looking at the strengths and weaknesses of both “sides” to determine if they could meet the needs of the child and to do a thorough examination to see if any of the parent of figures ( sic ) would in fact present a risk. While attachment is a commonly used word there are in fact few valid attachment measures …. Many children are strongly attached to parents who are completely inappropriate …. Dr.

Louise MacKay, another psychologist approached by the Director, was also in favour of a bilateral assessment: Ferguson Affidavit at para 39. [ 32 ] The Foster Parents refused to sign the Service Agreement. On May 6, 2015, counsel for the child responded in an e-mail to the Director as follows: .... This is not a private matter between the [Foster Parents] and [Grandmother]. This is not a custody matter between two parties. This assessment, as directed by the court, is intended to determine the “attachment” of this child ....

As counsel for the child, I do not consent to the custody assessment as proposed by the Director. I called for an attachment assessment and have been consistent with this submission throughout the process. The Court agreed. It must be done as directed: Ferguson Affidavit, Exhibit S. [ 33 ] No attachment assessment was ever completed. [ 34 ] On May 29, 2015, the Director invited Grandmother and the Foster Parents to apply for guardianship in the Provincial Court: Ferguson Affidavit at para 13 and Exhibit D.

The Director advised that he would take no position on either application. [ 35 ] On June 25, 2015, the Director brought this matter back before Justice Ouellette, who vacated the requirement to obtain the attachment assessment. [ 36 ] Also in June 2015, counsel for the child brought an application in the Court of Queen’s Bench respecting Grandmother’s access to SS. This “access” application is distinct from this judicial review application. Justice Goss granted an interim interim without prejudice order respecting Grandmother’s access on June 4, 2015 (the Goss Order).

The access application is set for a Special Chambers application on May 18, 2016. [ 37 ] In July 2015, Grandmother brought guardianship and access applications respecting SS in the Provincial Court. The guardianship application was adjourned sine die on September 30, 2015. An access order was granted mirroring the Goss Order. While the Director would eventually have taken a role in the Provincial Court proceedings, on the evidence, the Director was not involved in the commencement of Grandmother’s applications.

Grandmother brought these applications on her own. (Some concern was raised before me about the provision of notice of these applications. As the Provincial Court matters have been satisfactorily dealt with, I need not pursue these issues. It suffices to observe – without attributing any responsibility or blame – that relationships at this point are not marked by maximal cooperation and collaboration.) [ 38 ] The Director has made some efforts to resolve the issues informally among himself, the Foster Parents, and Grandmother since January 2015, but without success.

The Director, though, did decline the Court of Appeal’s invitation “to further consider whether it is possible to resolve this matter without, or in advance of, a decision from the Honourable Court.” As regards this invitation, the Director stated that he “does not foresee that any further discussions will lead to a resolution which will meet the child’s best interests:” Memorandum of Counsel for the Child, tab B; Memorandum to Court of Appeal Case Management Officer, April 24, 2015.

On November 26, 2015, the Director offered the Foster Parents and Grandmother an opportunity to participate in a collaborative law process at the Director’s expense: Ferguson Affidavit, Exhibit E. Foster Parents’ counsel refused this overture on the grounds that it would entail retaining new counsel and would push dispute resolution into a new process channel: Ferguson Affidavit, Exhibit F.

As emphasized in oral argument, this new process would be outside of the court system and, in particular, outside of the process that required the Director to properly reconsider the Appeal Panel’s decision. [ 39 ] The Director received a neuropsychological report respecting SS from Dr. Lloyd Flaro dated August 7, 2015: Ferguson Affidavit, Exhibit T (the Flaro Report). SS was assessed July 20, 21, 31, and August 4, 2015. She was 5 years old. Dr. Flaro provided a

summary starting at p. 10 of the Flaro Report. SS had “normal cognitive and neuropsychological test results (average to above average).” She performed poorly on one measure of executive functioning, suggesting difficulty with concept formation, rule learning, and self- monitoring. Based on information provided by one of the Foster Parents, SS had displayed “severe executive dysfunction in inhibitory control, transitional shifting, emotional and behavioural functioning, [and] initiation of tasks.” Dr.

Flaro commented that “impaired executive functioning can impede the development of emotional regulation.” [ 40 ] Dr. Flaro indicated that if SS’s mother used drugs during pregnancy (she did) problems would be caused. According to Dr.

Flaro, “Typically, children exposed to cocaine during pregnancy demonstrate the following issues: hyperactivity, attention deficits, impulsivity, feeding difficulties, irritability and impaired ability to adjust to new stimuli or situations.” The use of crystal meth by the birth mother could affect the emotional centres of the brain disrupting “a child’s ability to regulate affective states.” [ 41 ] The mother was reportedly diagnosed with bipolar disorder and borderline personality disorder. Dr.

Flaro continued: “The former clinical disorder causes significant rapid mood swings, emotional lability and impaired self-regulation. In terms of the latter diagnosis, it is “ five times more common among first-degree relatives of those with the disorder than in the general population (DSM-5;

p. 665). In bipolar disorder, “ A family history of bipolar disorder is one of the strongest and most consistent risk factors for bipolar disorders (DSM-5; p. 130). Such research suggests a genetic predisposition :” Flaro Report at pp. 10 – 11. [ 42 ] Dr. Flaro identified another factor potentially involved in SS’s behavioral and emotional issues – disruption in the stability of her foster environment. Dr. Flaro did rely on reports from the Foster Parents and the case worker. Dr. Flaro commented that Insecure children need a secure, stable, regulated and controlled environment where they feel safe and protected.

The [in]securely attached child when under stress uses an angry approach to gain attention and protection .... Such “fight behaviors” are more pronounced when upset and associated with separation, threatened abandonment and emotional unavailability. This particular attachment style retards the development of self-regulation capabilities. Dr. Flaro continued: .... it is extremely possible that [SS] is reacting to the fact that her emotional bond with her foster parents has been disrupted and this distress increases her fear of abandonment and/or fear of rejection by them.

Such experiences would also evoke significant emotional distress as well as safety and protection issues ....: Flaro Report at p. 11. [ 43 ] Dr. Flaro recommended that SS be referred to a child psychiatrist and that she become involved in play therapy. He also made some comments about access by Grandmother: Flaro Report at p. 12. [ 44 ] Dr. Flaro provided an Addendum to his report dated December 15, 2015. He responded to some questions by the caseworker sent in an e-mail dated November 30, 2015. At point 9, Dr. Flaro emphasized that he performed a neuropsychological assessment of SS.

He confirmed that “whomever is determined to be her caregiver ... will need to understand the possibility that [SS] may be developing a mood disorder with a familial genetic link and what the consequences of this diagnosis, if made, would be in terms of parenting practices:” Flaro Report at p. 16. At point 10, Dr. Flaro confirmed that “I have not been asked to assess [Grandmother’s] parental capacity and have not completed a home assessment.” Dr.

Flaro could therefore not comment on whether – as he had been asked by the caseworker - Grandmother’s home seemed (e.g.) to be highly structured and stable. [ 45 ] The Director delayed dealing with the Flaro Report. The report was dated in August. The caseworker questions were not e- mailed until November. (Moreover, according to RP’s affidavit of March 18, 2016, the Foster Parents did not receive the report until sometime after October 8, 2015. The date of receipt was not specified. RP also raised concerns about when the Flaro Report was provided to SS’s school.

The Flaro Report contained information that was important to caregivers and the school. In view of the thinness of the evidence and the collateral nature of this delay, I will not pursue this issue further, save to mark it as another odd feature of the Director’s response to SS’s circumstances.) [ 46 ] The Foster Parents filed this application on September 18, 2015. [ 47 ] Grandmother is not a party to this application. On October 1, 2015, Justice Gill granted an order scheduling the hearing of this application. Justice Gill’s Order recited that ....

UPON being advised that a non-party to this judicial review, [Grandmother], whose counsel advises may apply to be added as a party in these proceedings, has been provided a copy of the Originating Application and supporting Affidavit but without the attachments which are subject to confidentiality provisions of the Child, Youth, and Family Enhancement Act …. and Justice Gill ordered that 2.

The whole of the Originating Application and supporting Affidavit filed in this matter shall be served upon counsel for [Grandmother], and is subject to the confidentiality provisions of the [CYFEA]. [ 48 ] At para 45 of the Ferguson Affidavit, it is stated that “I am advised and believe that, having received Dr. Flaro’s second report, the Statutory Director is ready to proceed with the next stage of his further consideration.” Ms. Ferguson’s affidavit was sworn February 26, 2016.

This reconsideration has not been completed. [ 49 ] On February 26, 2016, the Director cross-applied for a stay of “all proceedings associated with Action # FL03 43296,” that is, the current proceedings. [ 50 ] The application came on before me on April 1, 2016. After a full day’s hearing I reserved judgment and requested counsel to provide me with written argument respecting whether the Court could and should order that SS be adopted by the Foster Parents. [ 51 ] SS has resided with the Foster Parents since her placement with them in June 2010. She is now nearly 6 years old. II.

PRELIMINARY ISSUES [ 52 ] I must address three preliminary issues: (

A) what is the standard of review governing the assessment of the Director’s conduct? (

B) what factors inform the assessment of the reasonableness of the Director’s conduct? and (

C) what guidance has the Court of Appeal provided to the Director respecting his response to the Appeal Panel decision? A. Standard of Review [ 53 ] Doubtless because the Court of Appeal has identified the appropriate standard of review, little oral argument was directed to the standard of review issue, although this application had the peculiarity of focusing not on what the Director has done but on what the Director has failed to do. The Court of Appeal dealt with the standard of review in RP v Alberta, 2015 (CA) at paras 29 and 30:

[29] Having considered the four factors set out in Dunsmuir , the reviewing judge adopted “reasonableness” as the standard against which to review all aspects of the Director’s decision. While the decision itself involved the placement of SS by either leaving her with the Ps or moving her to JS, implicit within that decision is the question central to this appeal, namely the proper scope of the Director’s decision-making authority. The Director interprets s. 119(2) of the CYFEA as allowing him to disregard the findings of the Appeal Panel and reconsider the matter entirely afresh, as if the Appeal Panel had made no findings. The reviewing judge found that

interpretation to be unreasonable. [30] All parties accept that the reviewing judge chose the correct standard of review of the Director’s reconsideration decision (namely, reasonableness), though the Director argues the reviewing judge erred in his application of that standard. See also L.E. v Alberta (Child, Youth and Family Enhancement Act, Appeal Panel) , 2013 ABQB 161 , Ross J at para 33 [ LE v Alberta ]. [ 54 ] Thus, a deferential approach to the assessment of the Director’s conduct is warranted.

The question is not whether a reviewing Justice would have carried out the Director’s responsibilities differently, but whether, in all the circumstances, the Director’s conduct fell within the spectrum of reasonable responses to the issues and circumstances faced by the Director. [ 55 ] By what criteria should the reasonableness of the Director’s conduct be assessed? B.

Best Interests of the Child [ 56 ] The Director, like other statutory decision-makers, must abide by the principles of natural justice, engage only in statutorily- authorized conduct, and perform statutorily-imposed duties. [ 57 ] More specifically, the assessment of the Director’s conduct must be informed by the factors guiding decision-making in s. 2 of the CYFEA.

Section 2 provides as follows: 2 If a child is in need of intervention, a Court, an Appeal Panel and all persons who exercise any authority or make any decision under this Act relating to the child must do so in the best interests of the child and must consider the following as well as any other relevant matter: (

a) the family is the basic unit of society and its well - being should be supported and preserved; (

b) the importance of stable, permanent and nurturing relationships for the child; (

c) the intervention services needed by the child should be provided in a manner that ensures the least disruption to the child; (

d) a child who is capable of forming an opinion is entitled to an opportunity to express that opinion on matters affecting the child, and the child’s opinion should be considered by those making decisions that affect the child; (

e) the family is responsible for the care, supervision and maintenance of its children and every child should have an opportunity to be a wanted and valued member of a family, and to that end (

i) if intervention services are necessary to assist the child’s family in providing for the care of a child, those services should be provided to the family, insofar as it is reasonably practicable, in a manner that supports the family unit and prevents the need to remove the child from the family, and (ii) a child should be removed from the child’s family only when other less disruptive measures are not sufficient to protect the survival, security or development of the child; .... (

g) any decision concerning the removal of a child from the child’s family should take into account the risk to the child if the child remains with the family, is removed from the family or is returned to the family; (

h) if it is not inconsistent with protecting the survival, security or development of a child who is in need of intervention, and appropriate community services are available, the child or the child’s family should be referred to the community for services to support and preserve the family and to prevent the need for any other intervention under this Act; (

i) any decision concerning the placement of a child outside the child’s family should take into account (

i) the benefits to the child of a placement within the child’s extended family; (ii) the benefits to the child of a placement within or as close as possible to the child’s home community, (iii) the benefits to the child of a placement that respects the child’s familial, cultural, social and religious heritage, (iv) the benefits to the child of stability and continuity of care and relationships, (

v) the mental, emotional and physical needs of the child and the child’s mental, emotional and physical stage of development, and (vi) whether the proposed placement is suitable for the child; (

j) the provision of intervention services is intended to remedy or alleviate the condition that caused the child to be in need of intervention;

(

k) intervention services are most effective when they are provided through a collaborative and multi - disciplinary approach; (

l) if a child is being provided with care under this Act, the child should be provided with a level of care that is adequate to meet the needs of the child and consistent with community standards and available resources; (

m) if a child is being provided with care under this Act, a plan for the care of that child should be developed that (

i) addresses the child’s need for stability, permanence and continuity of care and relationships .... (

n) a person who assumes responsibility for the care of a child under this Act should endeavour to make the child aware of the child’s familial, cultural, social and religious heritage; (

o) there should be no unreasonable delay in making or implementing a decision affecting a child; (

p) if the child is an aboriginal child, the uniqueness of aboriginal culture, heritage, spirituality and traditions should be respected and consideration should be given to the importance of preserving the child’s cultural identity. [ 58 ]

Section 58.1, which applies to adoptions under

Part 2 of the CYFEA, is also relevant and provides 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. [ 59 ] The overriding criterion for judging action and inaction under the CYFEA is the protection of the best interests of the child: RP v Alberta, 2015 (CA) para 47; T.W. v Alberta (Child, Youth and Family Enhancement Act, Director) , 2009 ABCA 25 at para 29 [ TW v Alberta ]; M.E. v Alberta (Minister of Human Services) , 2015 ABQB 251 , Manderscheid J at para 21 [ ME v Alberta ].

As for the factors to be considered in applying this criterion, Justice Bielby directed at para 6 of RP v Alberta, 2015 (CA) that [6] Since the CYFEA does not prioritize any of the s. 2 considerations to be taken into account by the Director in making a decision regarding the placement of a child ... each factor must be considered and balanced against the others in the context of the facts in a given case.

The legislation does not permit the Director to approach his decision by considering one or more of those factors to the virtual exclusion of any other. [ 60 ] With respect to the Director’s approach to the best interests of the child and the factors bearing on best interests, I appreciate that the Director’s job is difficult, not least because of the types of circumstances that engage the Director’s jurisdiction. The Director’s duties are multidimensional. As s. 2 demands, the Director must focus on the best interests of this child, of each child.

At the same time, the Director has an institutional role and must be concerned with how particular decisions, policy choices, and judicial determinations will affect other children and other parties enmeshed in CYFEA processes. (See Thomas Nagel, “Ruthlessness in Public Life,” in Mortal Questions (Cambridge University Press, 1979) 75 at 83.) The Director must work out what facts were, but decisions must be made in light of judgments about the future. Many of the Director’s determinations have prospective effect.

Finally, the factual foundations for the Director’s decisions evolve as the circumstances of the child evolve. C. Guidance from the Court of Appeal [ 61 ] Even more specifically, the reasonableness of the Director’s conduct must be assessed with regard to the Court of Appeal’s outline of the elements of a reasonable response by the Director to an Appeal Panel decision that does not confirm a Director’s decision but refers a matter back to the Director for reconsideration.

Justice Bielby wrote in RP v Alberta, 2015 (CA) as follows, commencing at para 69: [69] Applying this approach to this crucially important l e g i s l a t i o n in the life of a child, I am persuaded the Director is not e n t i t l ed to trump r ea s o na b l e fact findings with general policy considerations that do not have much, or any, bearing on the best interests of the specific child. The ultimate a u t h o r i t y of the Director is not just a power but a duty.

He is entitled to arrive at a different decision from an Appeal Panel only after: • e x p r e ss l y c o n s i d e r i ng t h e f ac t f i n d i n g s , c o n c l u s i o n s a n d d ec i s i on m a de by i t ; • expressly addressing the i n t e r a c t i o n of those findings and conclusions with any relevant new evidence w h i c h has come to his a tt e n t i o n since the Appeal Panel referred the matter back to him; • expressly c o n s i d e r i ng each of the s. 2 factors in the context of all of the evidence and expressly weighing each such factor in the

context of the others; • giving a r t i c u l a t e clear, d e f e n s i b l e and acceptable reasons for making findings or arriving at any c o n c l u s i o n s contrary to those reached by the Appeal Panel, including in r e l a t i o n to any new evidence before him, which was not before that panel; and • arriving at a reasonable decision of his own. [70] He is o t h e r w i s e required to d e f e r to a reasonable and supportable de c i s i o n of an Appeal Panel.

Deference, as described in Dunsmuir (at para 48) in the general context of j u d i c i a l review, a r i s e s where courts show a certain “respect” to the decision making process of administrative a d j u d i c a t i ve bodies. It does not require subservience to the determinations being reviewed though it li k e w i s e precludes simply imposing one’s own view.

Adapted to present circumstances, deference means that while the Director is not bound by the Appeal Panel’s findings of fact and reasoning (something the reviewing judge properly recognized), he is not able to simply ignore them on the grounds that they do not accord with his preferred view. [ 62 ] Justice Bielby went even further and, in obiter , commented on the prospects of the Director successfully justifying his original decision in light of the Appeal Panel findings and the circumstances of SS: [90] The above decision does not rest on the following observations, nor should the Director or his staff believe that this decision can be distinguished in other situations which lack these extreme facts.

However, in the hopes that a resolution of SS’s future can be reached sooner rather than later, I offer my opinion that, in the particular facts of this case, it may be difficult for the Director to articulate clear, defensible and acceptable reasons for making findings or arriving at any conclusions contrary to those reached by the Appeal Panel .... [97] In these unusual circumstances, while it seems to me that the ultimate question for the Director is whether to expose this child to the awful hurt of being separated from the family of which she is now a member, the family which has loved and nourished her, the only family she has ever known, in favour of developing a new familial relationship in the care of her grandmother and two siblings, her adoption by the [Foster Parents] would not necessarily make this an either/or proposition.

With the pledged cooperation of both families, or as a result of a condition sought by [Grandmother] and imposed in the [Foster Parent’s] adoption order, SS could maintain contact with [Grandmother] and her sisters. She would thus be spared the pain the Director believed would arise from her loss of contact with [Grandmother] and her sisters if she remained with the [Foster Parents]. III. THE DIRECTOR’S CONDUCT [ 63 ] The Foster Parents and counsel for the child assert that the Director has failed to reconsider the Appeal Panel’s decision within a reasonable time.

More generally, the Director has unreasonably failed to take steps and acquire information respecting SS. The delay argument has three aspects: (

A) whether inaction may support judicial intervention; (

B) the significance of the passage of time; and (

C) the Director’s manifest reluctance to decide. A. Inaction as a Ground for Review [ 64 ] In the case of inaction, judicial intervention in the form of judicial review is available only if a statutory decision-maker has failed to perform a legal duty: David Mullan, Administrative Law (Toronto: Irwin Law, 2001) at 411. Was the Director under a legal obligation to reconsider his decision in light of the Appeal Panel decision? The CYFEA does not, for example, require that a reconsideration decision be made within a specified number of days.

The Court of Appeal did not order the Director to provide a reconsideration complying with its directions by a specific date. [ 65 ] Nevertheless, in my opinion, the Director was under a duty to reconsider his decision and that reconsideration had to be completed within a reasonable time. [ 66 ] If the Director were not under an obligation to respond to an Appeal Panel’s decision to return a matter to the Director for reconsideration, the Director would – in effect and through his inaction – be claiming a discretion to ignore the Appeal Panel decision.

That discretion was expressly rejected by the Court of Appeal. Justice Bielby wrote as follows at paras 58 and 70 of RP v Alberta, 2015 (CA) : [58] Once again, applying the modern p r i n c i p l e of statutory

interpretation and that of statutory coherence to this issue, I observe that there would be no purpose served in having the Appeal Panel convene, hear extensive e v i d e n c e including, as here, expert evidence, and then prepare and p r o v i d e a written d e c i s i o n containing both findings of fact and c o n c l u s i o ns based on the evidence heard, if the Director were entitled to ignore both. [70] [The Director] is o t h e r w i s e required to d e f e r to a reasonable and supportable d e c i s i o n of an Appeal Panel ….

Adapted to present circumstances, deference means that while the Director is not bound by the Appeal Panel’s findings of fact and reasoning (something the reviewing judge properly recognized), he is not able to simply ignore them on the grounds that they do not accord with his preferred view. [ 67 ] Permitting the Director to simply do nothing in the face of a remitting decision of an Appeal Panel would subvert the integrity of the legislation.

Justice Bielby’s comments at para 59 apply: [59] Rather, requiring the Director to expressly consider those findings, and adopt them unless he concludes that the Appeal Panel’s de c i s i o n is unreasonable (again, after expressly addressing the evidence in the context of the s 2 factors) would interpret his obligations under s 119(2) as part of a rational, internally consistent framework, one consisting of parts w h i c h work together dynamically, each c o n t r i b u t i ng something toward accomplishing the intended goal of protecting vulnerable children [emphasis added]. [ 68 ] Justice Bielby confirmed that “[t] he ultimate a u t h o r i t y of the Director is not just a power but a duty:” RP v Alberta, 2015 (CA)

at para 69. The Appeal Panel having remitted the matter back to the Director, the Director was under a duty to reconsider. That duty was not only owed by the Director. It was owed to the Foster Parents, whose rights and interests were affected by the Director’s conduct. It was owed to SS, whose life and well-being were affected by the Director’s conduct. [ 69 ] Moreover, the reconsideration could not be deferred indefinitely, or, once again, the Director could through inaction do what he could not do through action. Reconsideration should occur within a “reasonable” time as provided in s. 2(

o) of the CYFEA: “there should be no unreasonable delay in making or implementing a decision affecting a child.” Reasonable dispatch in decision-making does not prioritize haste. A reasonable decision would be one that takes into account the other factors set out in s. 2. [ 70 ] The questions then are whether the Director failed to perform his duty to reconsider in a reasonable time, with particular regard to the passage of time and the evidence of the Director’s disinclination to reconsider. B. Time [ 71 ] Paragraph 2(

o) recognizes that the passing of time is not a neutral factor. In a case like the present one, the passage of time can reinforce and deepen relationships and psychological dependencies of persons who are together, and can weaken relationships of persons who are apart. The passage of time can exacerbate the damage of separation, it can undermine the benefits of establishing new relationships. The passage of time without resolution imposes stresses on both those in current relationships and those seeking the establishment of new relationships. Elements of the lives of the child and her care-givers and potential care-givers are left on hold. Paragraph 2(

o) recognizes that the Director, like other decision-makers (including judges), must make decisions in real time, with imperfect information. [ 72 ] The “time” aspect of unreasonable delay involves consideration of (1) the passage of time; (2) process delays, (3) the attachment assessment, (4) settlement efforts, (5) the need to obtain further information; and (6) collateral efforts. 1.

Passage of Time [ 73 ] Nearly a year has passed since the Court of Appeal released its decision (May 19, 2015) and the Director has not reconsidered the Appeal Panel’s decision in the manner directed by the Court of Appeal. [ 74 ] Yet while it is true that nearly a year has passed, only about a year has passed. All of the decision-makers in the path leading to the present application – the Appeal Panel, Justice Ouellette, the Court of Appeal, and I – have taken some time to deliberate and to work out reasons carefully.

The Director must be entitled to a reasonable period to put his mind to the issues. [ 75 ] Nonetheless, this near year, by itself, is an excessive delay. It amounted to about 1/6 of SS’s life. [ 76 ] Further, the delay must be put in context. The Director’s decision that sparked the litigation was made in February 2013, over three years ago. The Director presumably had reasons for his decision then, even if those reasons were not formalized. The Appeal Panel decision issued on March 4, 2014, a little more than two years ago.

The Director provided a response, though that response did not rise to the level of transparent rationality mandated by the Court of Appeal. Even were the Director inclined to maintain his position (contrary to Justice Bielby’s suggestion), the Director had a first draft to work from. Justice Ouellette’s decision was issued December 11, 2014, about a year and four months ago. Whether or not the Director agreed with the decision, it was a clear signal that the Director’s approach needed revision. It was not a call to do nothing. It was a second message that the approach of the Director was awry.

And again, the Court of Appeal’s decision was issued a little less than a year ago. This was the third indication that the Director was not approaching matters properly. The Director has had years to think about the issues and ample time to respond to the Appeal Panel decision in the manner directed by the Court of Appeal. [ 77 ] Moreover, the foundation for the litigation was not merely the Director’s decision but the timing of that decision. The placement decision was made in February 2013, when SS was two and a half or 30 months old.

Delay was already the central problem with the Director’s response to SS’s circumstances. Delay has impaired the Director’s approach to SS from the start. I must note immediately that Grandmother is not to blame for the delay in the making of the placement decision. [ 78 ] There were additional factors confirming the need for the Director to move promptly respecting SS’s circumstances. CASA had advised the Director to decide SS’s placement “expeditiously” in 2013. The timing of the Director’s reconsideration was raised in the June 25, 2015 appearance before Justice Ouellette: Justice Ouellette: ....

The next issue is going to be how long the Director takes in making these re-considerations, which will be another issue that may come before the courts at a later date .... Counsel for the Director: ... I can just advise the Director has been chomping at the bit to try to get this resolved. So I think there is not going to be any unnecessary delay. Proceedings Excerpt, June 25, 2015; Documents and Authorities of the Foster Parents – Judicial Review, tab D, p. 9, lines 8 – 14 (June 25, 2015 Proceedings Excerpt). 2.

Process Delays [ 79 ] It is true that the Appeal Panel and the courts took months to issue their decisions. The Director could not hasten these decisions. The Director was not “responsible” for other decision-makers’ delays. [ 80 ] Outcomes were uncertain pending issuance of decisions, but while this uncertainty constrained the Director, it did not prevent the Director from, for example, gathering information relevant to decisions the Director might be required to make and did not prevent

the Director from developing the outlines of further and better reasons should decisions run against the Director’s preferred approach.The Director was not entitled to put efforts respecting SS’s best interests on hold until formal decisions were made. In oral argument,counsel for the Director referred to “concurrent planning.” Whatever the technical meaning of this term, its use entailed that the Directorhas the capacity to move in distinct tracks respecting at-risk children.

Progress in one direction may have been impeded, but progress inother areas may not. [81] It is also true that if the Foster Parents had not resisted the placement decision, SS’s placement could have been resolved in2013. However, the Foster Parents were entitled to exercise their legal rights. Indeed, as the Court of Appeal decision confirmed, theFoster Parents were correctly requiring the Director to act within the scope of his statutory authority and duties.

The Foster Parents’exercise of their legal rights did not reduce the Director’s obligation to conduct himself reasonably given the Foster Parent’s exercise ofthose rights. The Director’s obligations were not interrupted or suspended pending process under the Act or general law. There was noevidence that the Foster Parents engaged in any litigation steps that were “deliberate and calculated [tactics] employed to delay:” R vAskov, (SCC), [1990] 2 S.C.R. 1199, Cory J at 1228. [82] Similarly though, the Director cannot be faulted for appealing Justice Ouellette’s decision.

As Justice Bielby noted at para 2of RP v Alberta, 2015 (CA), [2] The matter raises, apparently for the first time on appeal, the scope of the Director’s obligations upon an Appeal Panel remittinghis decision back to him for “further consideration” under s 119(2) of the CYFEA. Through the appeal, the Director sought and received clarification of his responsibilities. This was important in relation to the Director’songoing duties under the CYFEA. But again, the Director’s concerns respecting the relationship between his decisions and those of theAppeal Panel did not require that SS’s best interests be ignored.

At the very least, the Director could have continued making anyinquiries it considered appropriate pending and in preparation for the Court of Appeal’s decision and the Director could have worked ondeveloping more complete reasons (especially given that the Director had been unsuccessful at the two prior decision-making levels). [83] The fact is that time has passed as a necessary incident of legal process. As Justice L’Heureux-Dubé observed in CatholicChildren's Aid Society of Metropolitan Toronto v M. (C.), (SCC), [1994] 2 SCR 165 at 205 - 206, “the length of theseproceedings ... is a fact that is inescapable.

The passage of time in matters of child custody and welfare over extended periods may,unfortunately, carry a heavy burden for all concerned.” Timing imposed burdens on the Director. But timing did not free the Directorfrom his responsibilities to reconsider within a reasonable period of time. 3. Attachment Assessment [84] The requirement to obtain an attachment assessment was not vacated until June 2015.

The transcript of proceedings beforeJustice Ouellette indicates that there was some uncertainty about what an attachment assessment actually was: June 25, 2015Proceedings Excerpt at p. 1, lines 22-4; p. 2, lines 25-6, 30; p. 3, line 11. Nonetheless, I do not find that any delay attributable to theDirector’s pursuit of an attachment assessment significantly mitigated the Director’s delay.

That is, I do not find that the Director waswrongly forced to pursue a line of inquiry that, by itself, was the source of the Director’s delay in reconsidering the Appeal Decision. [85] An attachment assessment was requested by counsel for the child in 2012. No uncertainty was identified then. Neither did theDirector attempt to obtain an attachment assessment then: RP v Alberta, 2014 (QB) at para 71.

More importantly, the Director expresslyreferred to the lack of an attachment assessment in his reconsideration decision: “no attachment assessment of SS was submitted byeither party.” The Director must have known what an attachment assessment was and the Director must have believed it important,because he expressly referred to it as a matter given weight in his consideration. Justice Ouellette, as indicated, ordered that anattachment assessment be completed and the Director did not take issue with that element of Justice Ouellette’s decision on appeal: RP vAlberta, 2015 (CA) at para 25.

The Court of Appeal confirmed the need for an attachment assessment (para 72) and the parties gave theCourt of Appeal the impression that an attachment assessment was being pursued: [84] The matter must be remitted back to [the Director] to reconsider in light of the contents of an attachment assessment which Iunderstand is currently in the process of being obtained, and upon giving due deference to the findings of the Appeal Panel by followingthe directions contained in this decision. If the Director was unclear about what an attachment assessment was, the Director had from 2012 to clarify.

At least up until the time ofargument before the Court of Appeal, the Director appears not to have harboured a lack of clarity about what an attachment assessmentwas. [86] On the evidence, the Director did not take active steps to obtain an attachment assessment until January 2015. There wereindeed disputes between the Director and the Foster Parents about who would be retained to do the assessment. The Director eventuallysettled on Dr. Stephen Carter in April 2015.

I accept that it was prudent for the Director to negotiate before retaining an assessor, butobtaining the assessment was the Director’s responsibility and no judge had given the Foster Parents a veto. Regardless, part of theproblem with the Director’s attempt to obtain an attachment assessment was that the Director wanted to obtain a form of bilateral or“potential parent” based assessment focusing on the Foster Parents and Grandmother, not an attachment assessment focusing on SS. Drs.Carter and MacKay did opine that a bilateral assessment would be preferable.

That form of assessment, though, had not been ordered.While their opinions may have been valid in the typical private single-family child custody context, the foundation for their opinions asregards this case were not elaborated or established on the evidence. It appears from the e-mail queries of November 30, 2015 that theDirector was angling for bilateral assessment opinions even from Dr.

Flaro, who had to remind the questioner that he provided only aneuropsychological assessment. [87] Hence, the Director spent time unnecessarily pursuing the wrong form of assessment and was too slow in pursuing theassessment in the first place. [88] In any event, in my view, comments about the uncertain nature of an attachment assessment were overshadowed by Justice

Ouellette’s observations that an attachment assessment was no longer necessary. The facts that the assessment assessment would establish were already amply established: in my view, the attachment assessment is a waste of time. It is water under the bridge, and the decision has already been made ….: p. 2, lines 3-4; But now that they have made a decision as to what the Director must accept as fact and not accept as fact renders it moot, in my view: p. 2, lines 12-13; We are five years out or a little more… the need, if there was one, even at the stage that I ordered it to occur, is no longer there.

It is no longer there because of the passage of time, and that is a decision based on the fact that the findings of fact and the best interests found by the appeal panel must be followed by the Director, but for those exceptions that they’ve identified how he can potentially get around them. But having said that, the Court of Appeal has even said they don’t know how the Director is going to get around them: p. 8, lines 23-32; If [the bridge] was not crossed at three and half years it is crossed at five: pp. 8, line 41 – p.9, line 1. June 25, 2015 Proceedings Excerpt. 4.

Settlement Efforts [ 89 ] The Director has sought to promote settlement, unsuccessfully. The Director did decline to participate in dispute resolution when this matter was on appeal, prior to the Court of Appeal’s decision. The Director has most recently proposed settlement through a “collaborative law” process. The Director is willing to pay the costs of all parties.

The Foster Parents and counsel for the child objected to this process in principle, since it would require an agreement to remove the issues from the judicial system. [ 90 ] Aside from any inconsistencies regarding settlement and from any difficulty in principle with the latest proposed mode of settlement, even good faith settlement efforts by the Director would not suspend his obligation to move this matter along without undue delay.

Settlement constitutes a separate tactical track that may be explored while litigation, information acquisition, and other steps in SS’s interests could have been pursued. [ 91 ] The Foster Parents had gone to the trouble of successfully setting aside the Director’s reconsideration decision. They were justified in insisting that the Director comply with his duties as established by the courts and therefore in not starting over outside court processes. 5.

Further Information [ 92 ] The Court of Appeal did contemplate that the Director could seek further information to inform his proper reconsideration of the Appeal Panel decision. Justice Bielby wrote the following at para 72 of RP v Alberta, 2015 (CA) : [72] ... Cultural contact considerations may be outweighed by the desirability of preserving the child’s bond with her foster parents, a bond which likely grows with the passage of time the child lives with her foster parents.

Evidence as to the extent of such a bond and expert opinion as to the effect of its rupture by removing the child from her foster home is relevant to that determination and, where deficient, it would be prudent for the Director to endeavor to obtain further insight into this area, including through an attachment assessment, prior to making his reconsideration decision. Where this occurs, he must then expressly address the evidence contained in that assessment in balancing the s 2 factors one against the other.

Justice Ouellette had also referred to the potential appropriateness of further information-gathering: “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:” RP v Alberta, 2014 (QB) at para 60. Hence, delay to obtain this type of information would be reasonable. [ 93 ] As seen, the attachment assessment was not obtained. [ 94 ] Neither, on the evidence, was additional information obtained to inform the Director’s reconsideration, save for the report of Dr. Flaro.

There was delay in dealing with that report. It was dated August 2015, but questions were not sent by e-mail until November 2015. Dr. Flaro responded promptly to those questions, providing his Addendum in December 2015. [ 95 ] Moreover, no delay respecting the reconsideration should have been entailed because of the neuropsychological assessment. The neurological assessment related to the Director’s ongoing obligations respecting SS, not to the reconsideration of his decision. The following exchange occurred in the June 25, 2015 proceedings: Ms.

Kellett [counsel for the Foster Parents]: .... we need the Director to make the re-consideration decision .... But if that’s going to be a neuropsych assessment .... we haven’t even started one after six months .... Justice Ouellette: The Director’s decision whether to .... remove or not remove the child from the foster home is irrelevant to that issue .... In my view, totally irrelevant. Has nothing to do with it. Ms. Kellett: And should not be then delaying the decision .... to get that assessment. Justice Ouellette: No, no. This assessment – this is a child in care.

The Director has to do what they have to do .... They have their obligations there as far as the best interests of the child, because the child is still in their care .... June 25, 2015 Proceedings Excerpt, p. 17, lines 4 – 38.

[ 96 ] On the evidence, the Director’s delay was not mitigated by any relevant and required information gathering. 6. Collateral Efforts [ 97 ] The Director could and should have pursued SS’s best interests through multiple routes. It was appropriate (although not a justification for delay), for example, for the Director to promote informal resolution of the issues. Some of the proposals pursued by the Director, however, appear to have functioned more as distractions at best or provocations at worst; time spent on these proposals was not well spent.

I refer here to the proposals to have the issues resolved by the Provincial Court through a contested guardianship application or by the Queen’s Bench through a contested adoption application. A formal process under the CYFEA had already been engaged. What remained was for the Director to finish his part of that process and reconsider. The Director (as will be discussed further below) feared further reviews of any decision he might make.

I do not accept, though – and I was given no reason to accept – that the risks of further litigation were smaller as regards new contested procedures than respecting the Director’s reconsideration decision. The sole virtue of the new contested procedures would be that the Director would not have to decide. That is, the Director could ignore the Appeal Panel decision and the Court of Appeal’s directions.

The new contested procedures, again, would simply allow the Director to do indirectly what the Court of Appeal told the Director he could not do directly. [ 98 ] I therefore conclude, in all the circumstances and based on the foregoing considerations, that the Director failed to reconsider the Appeal Panel decision in a reasonable time. This finding warrants judicial intervention. [ 99 ] Furthermore, the Director’s failure to perform his duties is aggravated by yet another factor. C.

Reluctance [ 100 ] A serious difficulty with the Director’s conduct that both contributed to his delay and forms a distinct ground for judicial intervention is that the Director does not want to make a decision. He does not want to reconsider the Appeal Panel decision. [ 101 ] This should not be understood as a surprising or controversial conclusion. The Director is concerned that no matter what decision he makes, there will be further litigation. “No matter who the Statutory Director decides [SS] should live with, the other family can seek judicial review of his decision:” Ferguson Affidavit at para 5.

Counsel for the Director stated the following in her brief in support of the application for a stay of the judicial review application: 13. The Director asks this Honourable Court to:

a) signal to the Provincial Court that it has this Court’s permission to proceed with Grandma’s guardianship application, as well as any guardianship applications which the foster parents may choose to file, and

b) stay the proceedings launched by the foster parents in the Court of Queen’s Bench, pending the outcome of those Provincial Court guardianship applications.... 27. The Director fears that so long as he is the decision-maker, any decisions he makes will be subjected to ongoing litigation. 28. Grandma is not a party to the proceedings initiated by the foster parents. As such she is not bound by the result. If the Director were to reconsider and decide it’s in the child’s best interests that she be placed with the foster parents, Grandma could seek Judicial Review of the Director’s decision. 29.

By virtue of obtaining information about the child’s current circumstances, the Director is arguably making a new decision. If the Director were to reconsider and conclude it is in the child’s best interests to be placed with Grandma, the foster parents could seek Judicial Review of the Director’s decision. 30. The only way to stop the potential for never-ending judicial reviews and proceed with an application on the merits is by Grandma and the foster parents participating fully and both bound by the decision. [ 102 ] The Director has not reconsidered the Appeal Panel decision.

The Director has sought to push proceedings into a contested guardianship application in the Provincial Court. He has sought to push proceedings into a contested adoption proceeding in the Court of Queen’s Bench. He has sought to push proceedings into a collaborative law process outside of the judicial system. Common to all these efforts is that the Director would not be required to decide, to complete the reconsideration in the manner contemplated by the Court of Appeal.

The other processes would allow the Appeal Panel’s findings of fact and findings about the best interests of the child to be revisited without the need for a reconsideration. Justice Bielby provided an informal opinion respecting the Director’s opposition to the Appeal Panel’s decision: “in the particular facts of this case, it may be difficult for the Director to articulate clear, defensible and acceptable reasons for making findings or arriving at any conclusions contrary to those reached by the Appeal Panel:” RP v Alberta, 2015 (CA) at para 90.

The Director is trying to do through other means what Justice Bielby considered it may be “difficult” for the Director to do in the exercise of his statutory duties. [ 103 ] Again, I observe that the other court-based processes he has suggested would not avoid the prospect of further judicial proceedings, or are just as unlikely to avoid further judicial proceedings as his reconsideration. [ 104 ] Moreover, the Director’s positioning of Grandmother in its proposals exposes the Director’s inclination to maintain his initial decision and not to reconsider.

The Director proposed that Grandmother be the applicant for guardianship of SS in contested guardianship proceedings. The Foster Parents would be respondents. A similar positioning was suggested in connection with the contested adoption proposal. Who is applicant and who is respondent, who applies and who cross-applies may not, in the end, make much legal or practical difference. What the Director implicitly indicated to the Foster Parents, though, was that he favours Grandmother’s application and that the Foster Parents must resist that application. The Foster Parents were put on the defensive.

I will return to the issue of fairness to Grandmother below. At this point, within the context of this application and this court file, Grandmother

is not a party. She applied for party status and it was denied by Justice Ouellette on November 25, 2014. That decision was not appealed.Grandmother did not make an application before me to be added as a party. [105] Thus, the Director has not simply moved too slowly. The Director does not want to reconsider. The Director wants others,particularly the courts, to decide for him. The Director has abdicated his statutory responsibilities as regards SS and the Appeal Paneldecision.

The Director’s manifest disinterest in reconsidering his decision is both a cause of delay and an independent ground supportingjudicial intervention. [106] I have borne in mind Justice Deschamps’ comments in Chaoulli v Quebec (Attorney General), [2005] 1 SCR 791, 2005 SCC35 at para 97: 97 For many years, the government has failed to act; the situation continues to deteriorate. This is not a case in which missingscientific data would allow for a more informed decision to be made.

The principle of prudence that is so popular in matters relating tothe environment and to medical research cannot be transposed to this case .... While the government has the power to decide whatmeasures to adopt, it cannot choose to do nothing .... The government has not given reasons for its failure to act. Inertia cannot be usedas an argument to justify deference. [107] Once more I conclude, based on the foregoing considerations, that judicial intervention is required. The Director has failed todischarge his statutory duties and has demonstrated resistance to discharging his statutory duties.

The Director, through his delay andreluctance has failed to act or act reasonably to promote SS’s best interests. IV. REMEDY [108] Ordinarily, the remedy sought for a failure by a statutory decision-maker to perform a legal duty would be an order in the natureof mandamus, in this case to compel the decision-maker to reconsider the Appeal Panel decision or confirm that it will not bereconsidered, within a specified period of time.

But given the lengthy delay in this matter and given the Director’s express disinclinationto act, an order in the nature of mandamus would not serve SS’s best interests. [109] As argument evolved, all of the parties agreed that the court should decide, not the Director. The Director would have the courtorder that proceedings go forward as a contested guardianship application in the Provincial Court or as a contested adoption applicationin the Court of Queen’s Bench.

Counsel for the child and the Foster Parents ask that this court directly order the adoption of SS by theFoster Parents. [110] Three questions must be addressed: (

A) on what jurisdiction may I rely outside of traditional judicial review remedies? (

B) doesthis jurisdiction extend to the making of the types of orders contemplated by the parties, and, in particular, to ordering directly that SS beadopted by the Foster Parents? and (

C) in the circumstances, what remedy should be granted? A. Jurisdiction [111] The parties invoke the court’s parens patriae jurisdiction. The Foster Parents and counsel for the child seek an order foradoption of SS by the Foster Parents. The Director relies on the “supplemental” aspect of parens patriae to direct a contested adoptionhearing. “The Court’s inherent parens patriae jurisdiction is available to supplement the powers of the local authority, in this case theDirector.

This Honourable Court has the authority to direct a process which is designed to bring finality to the litigation:” Brief andAuthorities of the Respondent, Further Submissions to the Judicial Review, April 22, 2016 at para 14 (Director’s Further Submissions).This supplemental jurisdiction was referred to in A v Liverpool City Council and another, [1981] 2 All E.R. 385 (HL), quoted in Besonat 724: [Lord Wilberforce] continued at pp. 388-89: But in some instances there may be an area of concern to which the powers of the local authority, limited as they are by statute, do notextend.

Sometimes the local authority itself may invite the supplementary assistance of the court. Then the wardship may be continuedwith a view to action by the court. The court's general inherent power is always available to fill gaps or to supplement the powers of thelocal authority; what it will not do (except by way of judicial review where appropriate) is to supervise the exercise of discretion withinthe field committed by statute to the local authority. [Emphasis added.] [112] Parens patriae jurisdiction is part of the inherent jurisdiction of provincial superior courts.

It includes an authority to protect andpromote the well-being of children, that is, to protect their best interests: E. (Mrs.) v Eve, (SCC), [1986] 2 S.C.R. 388,LaForest J at 426; Alberta (Child, Youth, and Family Enhancement Act, Director) v D.L., 2012 ABQB 562, Ross J at paras 31- 32[Alberta v DL]; B.(R.) v Children's Aid Society of Metropolitan Toronto, (SCC), [1995] 1 SCR 315, LaForest J at 374(para 88). [113] As Justice LaForest observed in Eve, the jurisdiction is founded on necessity. The law must place somewhere the care ofpersons not able to care for themselves: Eve at 425, 426.

That somewhere is the courts. [114] Parens patriae is a broad jurisdiction, not confined to established categories of risk to children: Eve at 411 – 413, 426. Thejurisdiction extends n

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