WAM Applicant - v. -, 2016 ABQB 486

Court of Queen’s Bench of Alberta Citation: WAM v Alberta ( Child, Youth and Family Enhancement Act ), 2016 ABQB 486 Date: 20160831 Docket: FL03 49156 Registry: Edmonton Between: WAM Applicant - and - Alberta (Minister responsible for the Child, Youth and Family Enhancement Act ); Alberta (Director of the Child, Youth and Family Enhancement Act ); the Public Trustee; and Jane Doe (Adoptive Parent) Respondents 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 way 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 20161006; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision

of the Honourable Madam Justice Dawn Pentelechuk _______________________________________________________ I. Introduction [ 1 ] The Applicant, WAM, seeks judicial review of the adoption order of a child, granted to the Respondent Jane Doe, or alternatively, seeks an order to set aside the adoption order pursuant to s 73.1 of the Child, Youth and Family Enhancement Act , RSA 2000, c C-12 [ CYFE Act ]. [ 2 ] At the heart of this application is a 5-year old boy, born July, 2011, who I will refer to as Vincent. [ 3 ] The Applicant is the cousin to Vincent’s birth mother.

She desires to adopt Vincent. [ 4 ] The Respondent, Jane Doe, has had care of Vincent since he was two months old and has been his legal mother since an Order for Adoption was granted July 21, 2015 [Adoption Order]. [ 5 ] Prior to the grant of the Adoption Order, the Applicant completed a Home Assessment in March, 2015, and her adoption of Vincent was recommended.

Notwithstanding this, on April 28, 2015, the Director of Child, Youth and Family Enhancement [Director] consented to the application for adoption on behalf of Jane Doe. [ 6 ] The Applicant argues she was denied procedural fairness in the Director’s communication to her and in the decision to consent to Jane Doe’s adoption of Vincent without providing notice to her. [ 7 ] The issues I must address are: a. whether the Applicant was entitled to notice of the Director’s intention to consent to and submit the adoption application on Jane Doe’s behalf; b.

If the Applicant was entitled to notice, was there a breach of procedural fairness?; c. If the Applicant’s entitlement to procedural fairness was breached, what is the appropriate remedy? [ 8 ] As will be evident from my reasons, this application casts a light on the questionable and very troubling actions of the Director toward the stakeholders: i.e. the Applicant, Jane Doe (the adoptive parent), the child Vincent, and the Court. II. Preliminary Issue [ 9 ] In the course of reviewing the materials filed, the Court noted that the Certified Record contained no documentation after April 25, 2015.

Consequently, the reasons for the Director’s decision to consent to Jane Doe’s adoption were not apparent. I requested a Supplementary Certified Record containing documents between April 25, 2015 and the date of the Adoption Order, July 21, 2015. These documents were provided in advance of the hearing.

Counsel for Alberta Justice undertook to file a Supplementary Certified Record. [ 10 ] I also proposed to unseal the adoption file to determine when the application was submitted, and whether the materials submitted contained the Applicant’s Home Study, or whether the reviewing Justice, who dealt with the Applicant’s adoption process, was otherwise notified. All counsel confirmed in writing they had no objection to this. Documents from the adoption file were not provided to counsel. The adoption file is now re-sealed pursuant to s 74.1 of the CYFE Act . III.

Background [ 11 ] As indicated earlier, Vincent was born July 5, 2011 in Ontario and is now five years old. [ 12 ] Vincent’s birth mother is Somalian and his biological father is Hungarian. [ 13 ] On August 10, 2011, Vincent’s birth mother travelled with him to Edmonton by Greyhound bus. Vincent was apprehended by the Director 20 days later. [ 14 ] There was discussion about placing Vincent with the Applicant in 2011, but understandably, the Applicant was unable to take up the placement as a result of her young daughter being diagnosed with brain cancer.

No other family members came forward at that time. [ 15 ] Vincent was placed in four different foster homes before being placed with Jane Doe and her biological son on September 26, 2011. Vincent has resided with Jane Doe ever since. [ 16 ] In July 2011, Jane Doe participated in an Adoption Home Study, which recommended her for adoption through the foster-to- adopt program.

[ 17 ] A Permanent Guardianship Order of Vincent was granted October 25, 2012. [ 18 ] On November 25, 2013, Vincent acquired Permanent Placement Adoption status. [ 19 ] In February 2014, extended family members of Vincent’s birth mother expressed interest in adopting Vincent. [ 20 ] Jane Doe was advised in March 2014 her adoption application was being placed on hold as the Director was considering placement of Vincent with extended family members. [ 21 ] A decision was made on April 14, 2014, “based on the framework developed two weeks ago, based on our cyfea [sic] legislation and the un rights of a child [sic]” that Vincent would not be moved from his proposed adoptive home with Jane Doe [Record, Tab D p 193]. [ 22 ] Shortly after, on April 15, 2014, Jane Doe was advised of the Director’s decision not to move Vincent from her home. [ 23 ] By letter dated April 23, 2014, the Applicant was also advised of this: . . .As per your request this letter is to confirm that on this same date we have made the decision to have Vincent remain in his current placement.

We are deeply grateful for your application to become a kinship home and we are thankful that you are willing to be involved actively in his life as an extended family and cultural connection.

As we discussed, this decision was not made lightly and we weighed all the information in making this decision, using the CYFEA legislation, and the UN Rights of a Child. . . [Record, Tab E p 232]. [ 24 ] On April 23, 2014, the Applicant emailed a lengthy letter to the then Minister of Human Services expressing her displeasure with Children and Family Services over its handling of Vincent’s case, her unsuccessful efforts to communicate with the Director, and her desire to meet and raise Vincent and have him meet his older half-sister, who was residing in Ontario [Record, Tab D p 188]. [ 25 ] On May 14, 2014, a meeting between the Applicant and Jane Doe was arranged to facilitate the Applicant’s access to Vincent.

The meeting did not go well and no further meetings were scheduled.

The Applicant has not seen Vincent other than one occasion, shortly after the birth mother arrived in Edmonton [Record, Tab D pp 174-184]. [ 26 ] As requested by the Director, Jane Doe submitted a Cultural Connection Plan for Vincent on June 2, 2014. [ 27 ] On June 3, 2014, at the request of the Minister, the Assistant Deputy Minister wrote to the Applicant and advised he would be attending a meeting scheduled for June 10, 2014 between the Applicant and a senior manager with Child and Family Services [Record, Tab D p 170]. [ 28 ] Despite the Director’s earlier decision, on June 24, 2014 a referral was made to the Children’s Aid Society in Toronto to have a home study completed on Vincent’s maternal great-aunt, Halima, who was raising Vincent’s older half-sister.

The referral stated: . . . Although the decision is for Vincent to remain in his current placement, the home study on Halima is requested to gather further information about his extended family’s ability to care and his cultural background [Record, Tab E p 226]. [ 29 ] On or about July 30, 2014, Halima decided not to proceed with an Adoption Home Study for Vincent.

Correspondence from the Children’s Aid Society suggests it was family in Edmonton who put Halima’s name forward, and after learning of the requirements for the assessment and adoption process, expressed it would be too much for her given her age, her health and her circumstances. She inquired why the Applicant could not adopt Vincent. [ 30 ] In September 2014, the Applicant expressed her desire to adopt Vincent and her willingness to complete the necessary steps to do so.

The Director agreed the Applicant should undergo a Safe Home Study for this purpose. [ 31 ] A meeting within the Director’s office was held on October 16, 2014. The decision was made not to proceed with Jane Doe’s adoption of Vincent, but the adoption “continues to not be officially on hold”. Clearly, on that date, adoption of Vincent by both Jane Doe and the Applicant was being considered. [ 32 ] In November 2014, Vincent’s birth mother gave birth to Vincent’s half-sister “F” in British Columbia. The baby was apprehended.

The Applicant indicated her desire to adopt Vincent and his half-sister. [1] [ 33 ] In January 2015, frustrated with the delays in Vincent’s adoption, Jane Doe hired legal counsel and filed an Application for Guardianship of Vincent. In support, she swore a lengthy and comprehensive Affidavit outlining her frustration and concern with the delay experienced. [ 34 ] In late February 2015, the Applicant was provided with undated written notice of Jane Doe’s Guardianship Application and was advised the Guardianship Application had been adjourned sine die .

The Applicant did not respond to this notice nor did she bring her own application for guardianship. [ 35 ] Jane Doe’s Application for Guardianship of Vincent was neither scheduled nor heard prior to the Adoption Order being granted. [ 36 ] The Safe Home Study on the Applicant was completed March 16, 2015. It supported her adoption of Vincent and Vincent’s half-sister born November 2014.

The study was not signed by the Applicant until January 13, 2016 after the Adoption Order had been granted to Jane Doe. [ 37 ] Counsel for Jane Doe was advised that a meeting of senior management within the Director’s office was scheduled for April 20, 2015 to decide on Vincent’s placement. This meeting was re-scheduled to May 8, 2015. In the end result, this meeting did not proceed because, in the interim, the Director decided, on April 28, 2015 to consent to Jane Doe’s adoption of Vincent. The Director did

not notify the Applicant of this decision nor did the Director advise the Applicant that an Adoption Order had been granted. [ 38 ] Vincent’s adoption proceeded by desk application. The materials were submitted to the Court by Child and Family Services Division – Edmonton Region under a cover letter, dated July 10, 2015. [ 39 ] The Applicant learned of Vincent’s adoption by Jane Doe on October 28, 2015. [ 40 ] The Applicant filed an Originating Application for Judicial Review on January 20, 2016. IV.

Legislation [ 41 ] Decisions by the Director regarding the apprehension, placement and adoption of children subject to permanent guardianship orders are governed by the provisions of the CYFE Act. The Director’s statutory obligations are outlined in sections 2 and

Section 2 provides: 1. 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:... (

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

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

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.. [ 42 ] Decisions relating to the adoption of a child must consider the best interests of the child.

Section 58.1 outlines the specific factors which must be considered: (

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. [ 43 ] The Court, in granting an adoption order, must also be satisfied the adoption is in the best interests of the child: s 70(1). [ 44 ]

Section 73.1(1) deals with the setting aside of an adoption order. The

section states: No application to set aside an adoption order shall be made after the expiration of one year from the date of the adoption order except on the ground that the order was procured by fraud, in which case it may be set aside only if it is in the best interests of the adopted child. [ 45 ] It is apparent from these provisions the ultimate consideration of the Director and the Court is the best interests of the child. [ 46 ] I will now summarize the position of the parties. V.

Position of the Parties [ 47 ] The Applicant argues that the principle of procedural fairness dictates she was entitled to notice of the adoption application by the Director on behalf of Jane Doe or alternatively, her right to notice is founded in the common law right to notice because she is a person whose rights are affected, pursuant to s 7 of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11. [ 48 ] The Applicant argues the Director acknowledged her right to notice, in notifying her of Jane Doe’s Guardianship Application, yet failed to provide her with notice of the decision to consent to Jane Doe’s adoption of Vincent as well as notice that the Adoption Order had been granted. [ 49 ] Further, the Applicant contends that her wish to adopt Vincent and the Safe Home Study, recommending her for adoption, was information of critical importance and should have been brought to the attention of the Justice who signed the Adoption Order.

[ 50 ] The Applicant argues that Vincent’s best interests could only be determined through a process that is procedurally fair. Because the adoption materials contained no mention of the Applicant’s desire to adopt Vincent or her favorable Home Study, the reviewing Justice did not have all available materials to request further information or to make an informed decision. [ 51 ] The Director approaches this judicial review from the perspective of whether or not the Director’s decision to consent to the adoption by Jane Doe was reasonable.

The Director argues that he balanced all factors in the context of the circumstances and needs of the child, and the decision to consent to the adoption by Jane Doe was reasonable; and therefore, should not be interfered with by the Court. [ 52 ] On the issue of notice, the Director argues he was not required to notify the Applicant of the decision to proceed with Jane Doe’s adoption. It argues the Applicant was advised in February 2015 of Jane Doe’s Application for Guardianship and the Applicant did not respond.

The Director points to communication problems with the Applicant and numerous unsuccessful attempts to discuss this matter with her. The Director argues it was reasonable to conclude that the Applicant was not committed to pursuing Vincent’s adoption, given her lack of communication. [ 53 ] Counsel for the child supports the Director’s position and argues the Applicant is not a person entitled to receive notice. As Vincent was under the age of 12 and was the subject of a permanent guardianship order, only guardians of the child and the Minister must receive notice: CYFE Act , s 64.

Counsel for the child argues that the Applicant did not have standing such that she was entitled to be informed of Jane Doe’s application or any information contained in the Court file.

Counsel for the Child seeks dismissal of the Application. [ 54 ] Jane Doe did not submit a Brief but expressed through her Confirming Letter, the considerable stress and frustration occasioned by being immersed in litigation through no fault of hers. [ 55 ] Jane Doe argues any concerns regarding the Director’s procedures, and the way the file was handled, should not affect the reality that she has provided care for Vincent since September 2011, and has been his adoptive mother for over a year. VI.

Standard of Review [ 56 ] While the Director urges me to focus on the reasonableness of the Director’s decision to consent, I agree with the Applicant that the central issue is whether she is entitled to procedural fairness and if so, whether she was provided that. [ 57 ] The parties agree the question of whether the duty to be fair was breached is subject to the correctness standard: Toliver v Koepke , 2013 ABCA 304 at para 13 , 556 AR 310; Boardwalk Reit LLP v Edmonton (City) , 2008 ABCA 220 at para 174 , 437 AR 347.

I accept the parties’ position that the correctness review standard applies to questions about procedural fairness. VII. Analysis 1. Was the Applicant entitled to notice of the Director’s decision to consent to the adoption by Jane Doe? [ 58 ]

Section 62 of the CYFE Act stipulates that no application for an adoption order shall be filed in respect of a child who is subject to a permanent guardianship order, unless the period for appealing the order has expired or an appeal of the order has been disposed of. As mentioned previously, Vincent was the subject of a Permanent Guardianship Order granted October 25, 2012. Thus, there was no statutory procedural barrier to the Director proceeding with the application for the Adoption Order. [ 59 ]

Section 63 outlines the procedure and documentation to be submitted by the Director in support of an adoption application in respect of a child who is subject of a permanent guardianship order. The necessary consents are outlined in s 59 of the CYFE Act .

Consents must be provided by all guardians of the child other than the guardian who is applying for the adoption order, and by the child if they are 12 years of age or older. [ 60 ] As the Applicant was never a guardian of Vincent, there is no express requirement under the legislation (i.e. the CYFE Act ) to provide notice to her. [ 61 ] The Director relies on the Federal Court case of Wilks v Canada (Citizenship and Immigration) , 2009 FC 306 , 343 FTR 194. In this case, the Court held that Mr.

Wilks was properly notified of a hearing, notwithstanding he did not receive the letter advising him of the hearing date, noting that the Immigration Board was not obliged to act as the applicant’s legal counsel, or to remind him of the seriousness of the proceeding or to ensure that he fully understood the need for him to appear. [ 62 ] In confirming Mr. Wilks’ deportation, the Court found there had been no breach of the provisions of natural justice. [ 63 ] The Applicant referred me to two decisions from the Alberta Court of Appeal.

The first, GA v GW , 1984 ABCA 303 , 65 AR 375, involved an application by the biological father to set aside an adoption order granted to the birth mother and her new husband. [ 64 ] The father was aware that the mother and her husband wished to adopt the child, but the biological father heard nothing further. In the meantime, he applied for guardianship of the child. Before his application was heard, an adoption order was granted. [ 65 ] The father’s appeal was allowed and the adoption order set aside.

In the Court’s view, the father was entitled to have his claim for guardianship weighed and assessed by the court concurrently with the adoption application, notwithstanding there was no statutory requirement for notice to the biological father.

[ 66 ] In PK v JM , 1990 ABCA 192 , 107 AR 145, a permanent guardianship order was granted in the absence of the birth mother, who had been served with notice of the application. Once the permanent guardianship order was granted, the birth mother’s access to the child was terminated. At that point, the mother became aware of the full impact of the permanent guardianship order. A petition for adoption was filed on behalf of the respondents.

No notice was provided to the mother. [ 67 ] While the case can be distinguished on the facts as PK involved a birth mother who had been exercising access to her child, the case is nonetheless instructive. In that case, the Alberta Court of Appeal held that any person whose rights may be affected by the commencement of legal proceedings is entitled to notice unless the requirement for notice is extinguished by legislation: PK at para 15. [ 68 ] I am cognizant that the Applicant is a cousin to the birth mother and has met Vincent only once, shortly after his birth.

Nonetheless, the Director’s decision, on two separate occasions to put Jane Doe’s adoption on hold in order to consider Vincent’s placement with extended family and the decision to proceed with a Safe Home Assessment, which approved the Applicant for adoption, vested the Applicant with some basic procedural rights. Objectively, anyone in the shoes of the Applicant would believe she was being considered for adoption alongside Jane Doe.

In the circumstances, I find that the Applicant was entitled to procedural fairness: see, PK at paras 15-17. [ 69 ] In my view, it matters not that the Applicant took no positive steps in response to Jane Doe’s Guardianship Application in January 2015. The letter notifying the Applicant of this step simply said the Guardianship Application had not yet been scheduled.

If anything, the fact the Director notified the Applicant in writing would further underscore the Applicant’s belief she would be apprised of critical developments. [ 70 ] Having found the Applicant was entitled to procedural fairness, and specifically entitled to notice of the Director’s decision to consent to Jane Doe’s adoption of Vincent, it is clear on the Record that basic procedural fairness was denied to the Applicant. [ 71 ] But this is not a case of a government department crossing its wires, or simple miscommunication or of someone dropping the ball.

There is clear evidence in the Record before me that the Director’s actions and communication to the Applicant were misleading and deceitful. This necessitates elaboration. [ 72 ] In addition to the Certified Record, the following Affidavits were before me: 1. Affidavit of the Applicant filed January 15, 2016; 2. Affidavit of Heather Pearson, Manager of the North East Adoption Permanency Unit of Edmonton Region Child and Family Services filed July 29, 2016; 3. Affidavit of the Applicant filed August 11, 2016; 4. Affidavit of [Imam H] filed August 11, 2016. [ 73 ] Ms.

Pearson’s Affidavit speaks to the difficulties experienced in communicating with the Applicant. Attached to her Affidavit is an email dated June 29, 2015. It acknowledges the Applicant’s telephone message on June 26, 2015. The email requests a “time to meet to discuss your home study and have a discussion regarding your niece and nephew.” A meeting time of July 15, 2015 is suggested. There is conflicting Affidavit evidence as to whether there was any communication between Ms. Pearson and the Applicant between June 29 and July 20, 2015, but it is clear no meeting took place. [ 74 ] Ms.

Pearson then sent a letter to the Applicant, dated July 20, 2015. The letter states: This letter is to request a meeting to discuss your adoption Home Study that was completed on April 27, 2015. On May 22, 2015, I received the signature pages from Pathway’s Home Assessment Program. However, your signature was not included on the Home Study accepting their recommendations. The agency letter states multiple attempts were made by the home study writer to have the papers signed. In receiving the Home Study, I began my attempts to contact you. I left messages on May 27, June 4, June 12, June 22 and June 29, 2015.

As well, I sent you an e-mail to follow up. Thank you for calling me two times on June 26, 2015. In order to approve your Adoption Home Study, I require a meeting with you to discuss the approval process, have you sign the documentation accepting the recommendations. Please contact me within 20 days, by August 10, 2015 to set up a time to meet. If I do not hear from you I will close the Adoption Facility file and return pertinent documents to you. [ 75 ] The Applicant did not contact Ms. Pearson by August 10, 2015. [ 76 ] It bears repeating that by July 20, 2015 – i.e. the date on Ms.

Pearson’s letter, the Adoption Application of Jane Doe had already been submitted to the Court, yet the letter to the Applicant suggests her application was still being considered and that a meeting was necessary. [ 77 ] There is no mistaking that Ms. Pearson was aware of the Director’s decision to consent to Jane Doe’s application, and that the Adoption Application had been submitted. She is the individual who signed the Adoption

Summary as the Director’s Delegate and swore the Affidavit of Director on June 29, 2015. [ 78 ] Equally troubling is the Director’s attempt to rationalize its actions because of difficulties communicating with the Applicant. The Director argues that numerous efforts to discuss the matter with the Applicant were unsuccessful and it was therefore reasonable for the Director to conclude the Applicant was not committed to pursuing Vincent’s adoption. [ 79 ] Ms. Pearson’s evidence of her numerous attempts to call the Applicant is disputed by the Applicant and [Imam H]. The Record does not contain phone records or logs to substantiate Ms. Pearson’s evidence.

[ 80 ] The Applicant’s Safe Home Study was completed March 16, 2015. Between that date and April 28, 2015, the date the Director consented to Ms. Jane Doe’s adoption, the Applicant made contact with the Home Assessors on April 2, April 20 and April 27, 2015. [ 81 ] An email was sent to the Applicant by her caseworker on March 26.

It states: I would like to follow up with you regarding your position regarding the adults meeting between yourself and the child’s current caregiver, As you are aware, our office would like to facilitate a family contact and the positive relationship development between yourself [and] the child’s caregiver so that we can introduce your nephew to you. I tried to call you today as well but I was not able to leave a message.

Please contact me at your earliest convenience so that we can chat about your nephew, the adult meetings and the visits. [ 82 ] The Record contains the detailed feedback on the Applicant’s Home Assessment provided by Ms. Pearson on April 16, 2015 (although her Affidavit indicates her feedback was provided April 20). [ 83 ] Of note, Ms. Pearson acknowledges the struggles between the Applicant and Child and Family Services around communication, expectations and understanding. She critiques the extent to which this conflict is referenced in the Assessment Report. Ms.

Pearson indicates the Applicant believes she has connected with CFS, and CFS believes the Applicant has not. Ms.

Pearson’s feedback references the following: - that Somalia does not have CFS; - that Somalia has been war torn for decades; - that a completely different governmental system exists; - that culturally, family takes care of family. [ 84 ] There is a deep incongruity between these observations and the suggestion that the Applicant’s lack of communication led to the Director’s decision. [ 85 ] Further, I reject the suggestion that the Applicant would have known of the urgency in early 2015 of the Director’s need to make a decision regarding Vincent’s placement and that her failure to communicate indicated her disinterest in adopting Vincent.

After all, it had been over a year since the extended family had indicated a desire to care for Vincent. The Applicant’s Home Assessment referral took over five months to process. Her multiple requests for contact with Vincent were met with frustration. The Director’s actions throughout this file, belies any sense of urgency. [ 86 ] The problems with the Applicant’s communication are well documented in the Record. English is not her first language and she reported discomfort with the use of email. The Director was aware of several support people within the community who were assisting her.

There is nothing in the Record in 2015 to indicate any attempts were made to reach the Applicant through these individuals. [ 87 ] The evidentiary record does not support the Director’s contention that because of communication issues, it was forced to act as it did, nor does it support the contention any urgent situation emerged that necessitated proceeding without notice to the Applicant. [ 88 ] The Supplementary Record contains a legal opinion dated February 23, 2015, privilege over which was waived by the Director.

The decision to consent to Jane Doe’s adoption was made by Patti Schimpf (now Ferguson) and David Wilson, who are persons senior to Ms. Pearson. The only reasons outlined in the Record are contained in an email to legal counsel dated April 28, 2015: David and I had a chance to meet regarding Vincent this morning.

Having reviewed your opinion, both of the home studies, and through case consultation, we are confident in a decision to support [Jane Doe] in her adoption of Vincent. [ 89 ] I was advised no other notes or memoranda pertaining to this meeting exist. [ 90 ] Counsel for the Director argues the Director made the only decision possible, that the legal opinion advised there was a very high likelihood that Jane Doe’s Guardianship Application would be granted based on the bond between mother and child. [ 91 ] Jane Doe’s Guardianship Application had not been scheduled yet, however, and dates were not available until early 2016.

In reality, there was no impending court date driving the decision. [ 92 ] The work of the Director is important. I fully recognize it is also challenging. But the actions of the Director must evoke confidence in the citizens of this Province that the Director’s decisions are informed solely by his statutory obligations and duties and that the actions and decisions of the Director are open, transparent and defensible. [ 93 ] Unfortunately, in this very troubling saga, no one was well served. [ 94 ] The Director did not treat the Applicant fairly.

She was entitled to notice of the Director’s decision to consent to Jane Doe’s adoption application. She was deprived of the opportunity to have her application considered alongside that of Jane Doe’s. Worse, the communication to her following the Director’s decision was misleading. [ 95 ] Jane Doe, through no fault of hers, was not only kept in limbo for an inordinate period of time, but subjected to the uncertainty of when or even if, her application for adoption would be approved.

Jane Doe could neither trust nor rely on the Director’s word. [ 96 ] It is also troubling that Jane Doe’s involvement of legal counsel appears to have finally prompted the Director to move toward a decision. Prospective adoptive parents should not have to resort to this step. Many otherwise suitable parents may lack the financial resources to do so.

[97] In my view, the Director also abrogated its statutory duty to Vincent. He was entitled to a timely decision regarding hisadoption. The existing policy recommended that the adoption of a child with Permanent Placement Adoption status be completed in 3months. In fact, his adoption was not completed until 20 months after he received Permanent Placement Adoption status.

Vincent wasentitled to all of the benefits that come from a stable, nurturing and permanent home. [98] When the extended family expressed interest in adopting Vincent in early 2014, the Director should have conducted a criticalanalysis as to whether, by that point in time, the bonding that had occurred between Jane Doe and Vincent overshadowed any potentialcultural and familial benefits Vincent might experience through placement with extended family. The Record suggests this analysis wasnever done.

Instead, the Director launched into a lengthy process to explore placement of Vincent with the Applicant and other membersof the extended family. It is disingenuous for the Director to now focus on issues of bonding and attachment in order to rationalize thedepartmental actions when these issues appeared to be of little concern throughout 2014. One would expect the Director to haveexplored placement with the extended family if he felt that, holistically and in the context of other relevant factors, it was in Vincent’sbest interest to do so.

But regardless, once that decision was made, the Director had an obligation to follow the path it had initiated to itsfair conclusion. [99] It is unfortunate that the Director appears to have lost sight of the forest for the trees. I concur with the legal opinion providedto the Director – it appears the Director blindly followed policy and made decisions for political reasons instead of focusing on the bestinterests of the child.

The Affidavit evidence of the Applicant is that it was not until directed by the Minister’s office to considerplacement with her, that a Home Assessment was set up for her. [100] Finally, I am compelled to comment on the Director’s conduct with the Court. The Director submitted a desk adoptionapplication to the Court without disclosing the Applicant’s interest in adopting Vincent or her favourable Home Assessment. Counselargued that the Director’s delegates are not lawyers and there is no “box” in the forms to tick off that a competing application exists.These are meritless excuses. The Adoption

Summary would be the logical place to alert the Court to this very vital information. TheDirector and his staff have ready access to legal counsel. [101] Here, the proper function of the Court was usurped. Reviewing a desk adoption application is not a perfunctory exercise. Whilethe ultimate decision may well have been the same, the decision was made on incomplete information. A desk application is not affordedthe usual safeguards that come with an adversarial process. The reliability and credibility of evidence cannot be tested.

This underscoresthe high duty of the Director in submitting complete and accurate information, including any outstanding applications he is aware ofregarding the child, whether any other party has expressed interest in adopting and whether the Director has approved any other HomeAssessments. [102] In this case, the fact the Applicant had expressed a desire to adopt Vincent and that she had completed a Home Study thatrecommended adoption by her, should have been highlighted and brought to the Court’s attention.

The Director could have followed thesage advice outlined in the legal opinion, obtained an Attachment Assessment, and submitted that in order to justify the Director’ssupport of Jane Doe’s application. [103] Even if those steps had been taken, the reviewing Justice may well have requested further information or a hearing may havebeen directed. [104] Unfortunately, there appears to be some basis for Counsel for the Applicant’s skepticism that the Director will learn from thisfile and take steps to ensure this will not happen in the future. [105] The Director has acknowledged in the past that he is under a duty to make full and complete disclosure to the Court of allinformation relating to any application to adopt.

Indeed the Director’s obligation has been the subject of prior comment by this Court: W(Re), 56 Alta LR (3d) 362, ; HKL (Re) (1988), (AB KB), 91 AR 141, [1989] 1 WWR 556; HS(Re) (1995), (AB KB), 168 AR 381, [1995] 7 WWR 39; and V, Re (AB KB), [1948] 2 WWR 996,1948 CarswellAlta 69. [106] The Court’s concerns with the Director’s failure to make full and complete disclosure in adoption applications, as outlined in W(Re), was neatly summarized by Shelley J in S (Re), 2014 ABQB 231 at paras 82-86: [82] Justice Bielby (as she then was) dealt with concerns similar to those raised by this application in W (Re), .

In thatcase Justice Bielby concluded that, when the Director supports an application for adoption, the Director has a high duty to make full andcomplete disclosure to the Court. The Court cannot fulfill its duty of determining whether an adoption is in the best interests of a child onthe basis of edited facts. She was dealing with the Child Welfare Act, predecessor legislation to the Act. As in this case, Justice Bielbyhad received a desk adoption application but had remitted it for oral hearing because she was not satisfied that the adoption should begranted based on the contents of the supporting materials.

Those materials had raised concerns because they appeared to paint anunobjective picture of the adoptive parents by minimizing negatives. No investigation or analysis was offered relating to the concerns inthe 11,000 word home assessment. [83] Justice Bielby pointed out that the vast majority of adoptions are unopposed, with the only sources of evidence being from thosesupporting the adoption. Accordingly, a Court cannot rely on the usual safeguards of reliability and comprehensiveness which areproduced by an adversarial process.

Similar to the matter before me, the Department had identified and investigated concerns about theadoptive parents, but those concerns were mentioned only in passing in the materials provided to Justice Bielby. Justice Bielby notedthat some of the evidence was revealed only through her questioning, an unusual practice but necessitated by the unopposed nature of theapplication. The same occurred in the present application before me. [84] Justice Bielby got the impression that the caseworker believed the Court was required to accept the caseworker’s opinion withoutaccess to the information on which it was based.

She concluded that the social workers apparently believed that, because they weresatisfied, the Judge would be satisfied. I received a similar impression in this application. [85] The Department had acknowledged to Justice Bielby that it was under a duty to make full and complete disclosure to the Court of all

information These cases made it clear that the Court, in exercising its judicial function in reviewing applications for adoption, is not intended to be “a rubber stamp”, nor to accept the opinions and recommendations of the Director, without the opinions being substantiated.

The Court cannot exercise its discretion intelligently and judicially without having all the facts before it. [86] Justice Bielby expressed the view that “adoption should not be a game where social workers attempt to get applications by the Court without question... where the social worker assumes that her conclusions are all that are needed, the role of the judge and the protection offered by the Court vanishes”. The issue is not the honesty of caseworkers, but the accuracy of the information provided to the Court.

As a result of her concerns in the case before her, Justice Bielby stated [at para 24]: “One is led to speculate as to what has been withheld on other adoption applications. The problems here were identified only because they were casually hinted at, buried in 11,000 otherwise upbeat, perky words. What of those cases where even the hints are not express? What then would lead a judge to ask further questions?” [ 107 ] I echo the concern expressed by Bielby JA and Shelley J.

Learning that critical information was withheld from the Court in this adoption application and the Court’s questioning of whether a complete Certified Record had been filed, lead me to wonder what information may have been withheld on other occasions. The Director’s conduct in this instance has tarnished his reputation before the Court and calls the reliability of his representations into question. 2.

What Remedy is Appropriate? [ 108 ] Having found that the Applicant was owed a duty of procedural fairness and that this duty was breached, what is the appropriate remedy? [ 109 ] I am urged by the Applicant to set aside the Adoption Order and order a hearing on the merits. The Applicant argues the process was deeply flawed and unfair; and Vincent’s best interests can only be determined through a process that is procedurally fair. [ 110 ] The Director and Counsel for Vincent urge me to focus on Vincent’s best interests and the harm that will be caused by disrupting the bond between Vincent and Jane Doe.

In their view, any procedural shortcomings are trumped by Vincent’s best interests. [ 111 ] While a finding of breach of procedural fairness will often result in the underlying decision of the administrative body being set aside, the present circumstances, involving the interest of a child, gives some pause. [ 112 ] As a starting point, I note this Court has held the CYFE Appeal Panel has no more expertise than the courts in determining what is in the best interests of a child: LE v Alberta (Child, Youth and Family Enhancement, Appeal Panel), 2013 ABQB 161 at para 32 , 559 AR 16.

If follows that the Director, whose decisions are subject to review by the Appeal Panel, has no more expertise than the Court in deciding what is in the best interests of a child. [ 113 ]

Section 8 of the Judicature Act , RSA 2000 c J-2, provides the Court with a wide general discretion to grant remedies any party to the proceedings may appear to be entitled to: The Court in the exercise of its jurisdiction in every proceeding pending before it has power to grant and shall grant, either absolutely or on any reasonable terms and conditions that seem just to the Court, all remedies whatsoever to which any of the parties to the proceeding may appear to be entitled in respect of any and every legal or equitable claim properly brought forward by them in the proceeding, so that as far as possible all matters in controversy between the parties can be completely determined and all multiplicity of legal proceedings concerning those matters avoided. [ 114 ] The general authority of the Court to provide remedies is also codified in Rules 1.3 and 1.4 of the Alberta Rules of Court , Alta Reg 124/2010. [ 115 ] The Rules of Court speak to the resolution of claims in the quickest and most cost effective means possible.

The Judicature Act speaks to the complete determination of all matters in controversy between the parties. [ 116 ] Jurisprudence also points to the Court’s authority to intervene, where, in light of the circumstances existing and the evidentiary record, only one solution is reasonable: Giguère v Chambre des notaires du Québec , 2004 SCC 1 at para 66 , [2004] 1 SCR 3. [ 117 ] Those principles have particular application here.

This matter cries for a resolution. [ 118 ] Despite my finding that there has been a breach of procedural fairness, having reviewed the evidentiary record before me and the authorities provided, I decline to set aside the Adoption Order and conclude it is not in Vincent’s best interests to do so. This is the only reasonable result.

To set aside the Adoption Order and order a full hearing on the merits would be fruitless and would serve only to prolong the uncertainty and frustration the parties have experienced. [ 119 ] Most critically, ordering a full hearing on the merits at this point would erode Vincent’s sense of security and stability. The case worker acknowledged the ongoing stress and demands on Jane Doe and her family as a result of frequent home visits with various individuals involved in the placement process (Record, Tab F p 233).

It would be naïve to think that despite the most altruistic and noble attempts of Jane Doe to shield Vincent from continuing litigation, this could fully be accomplished. [ 120 ] Vincent is now five years of age. He has been with his adoptive mother since he was two months old. All of the evidence before me indicates Jane Doe is an excellent mother who has provided a loving, stable and nurturing environment for Vincent to thrive. In the Record (Tab D p 141), his case worker observed the following:

- Vincent has a very strong and healthy attachment; - Vincent has bonded well to Jane Doe and his big brother; - Jane Doe treats Vincent as her own, and Vincent is fully integrated within the current family unit; and - there is a strong and mutual sense of belonging, love and commitment. [ 121 ] There is also the report of Dr. Caniff, the psychologist, who began work with Vincent in November 2014. Dr. Caniff is unequivocal in his view that Vincent has bonded with his adoptive family and has strong attachment to his family members. To quote Dr.

Caniff: His life revolves around the family that he has come to know and love. He looks to his adoptive mother, brother and adoptive grandmother for wisdom and nurturance.

They are his world and his protectors. [ 122 ] While there is no expert evidence before me directly on point, the only logical inference, given Vincent’s secure attachment to his adoptive family, is that a transition, after five years of being with the only family he has known, would cause him significant trauma, grief and loss. [ 123 ] I am unaware of any precedent for transitioning a child after this length of time in the face of clear evidence of secure attachment and bonding and a stable and loving environment.

The weight to be given this factor increases the longer the child has lived with the foster or adoptive parent: RP v Alberta , 2015 ABCA 171 at para 7 , 600 AR 262. [ 124 ] RP v Alberta , at para 6 , informs us that the CYFE Act does not prioritize any of the factors outlined in s 2, that the Director is to consider in the placement of a child.

Each factor is to be considered and balanced in the particular context of each case. [ 125 ] So while Vincent’s familial, cultural, social and religious heritage is an important factor to consider, it does not trump the other factors listed. [ 126 ] Even in cases where cultural identity is given special recognition in the Constitution Act, 1982 , the legislation and the jurisprudence, the Courts have declined to transition a child from non-Aboriginal foster or adoptive homes in the face of compelling evidence of bonding and attachment to the foster parents: See Algonquins of Pikwakanagan v Children’s Aid Society of the County of Renfrew , 2014 ONCA 646 , 325 OAC 94; RP v Alberta . [ 127 ] I do not mean to infer or signal that the Court will never intervene if there is evidence of bonding and attachment.

If the Applicant was a biological parent and had been exercising access, the result may well be different. But here, the blood tie between Vincent and the Applicant is somewhat distant; the Applicant is the birth mother’s cousin and critically, she has no record of continued relationship with Vincent, having seen him only once, shortly after the birth mother arrived in Alberta. [ 128 ] Further, I am confident that Jane Doe is committed to exposing Vincent to the cultural heritage of both of his biological parents.

The Record is replete with concerns that the Applicant and the extended family do not recognize the importance of recognizing Vincent’s Hungarian roots. 3. Should the Applicant be granted access rights? [ 129 ] The Applicant seeks access rights.

This is a sensitive issue and I acknowledge that Jane Doe, given the difficult meeting between her and the Applicant in May 2014, opposes any form of visitation between Vincent and the Applicant. [ 130 ] In the adoption materials submitted to the Court, it was represented that Jane Doe is committed to facilitating a relationship between Vincent and his two half siblings and his extended family.

The Director may well have overstated her willingness, for the Supplementary Record discloses Jane Doe’s continued concern with possible access by the Applicant. [ 131 ] It is worth mentioning that an unfortunate result of the Director’s equivocation and delay is that the interests of Jane Doe and the Applicant are pitted one against the other. It is entirely predictable that the one and only meeting between the two did not go well, and there exists a high level of anxiety and mistrust between the two.

The Applicant does not understand why she must develop a relationship with Jane Doe before she can visit Vincent. Jane Doe feels threatened and intimidated by the Applicant and her family. [ 132 ] No doubt, there are lessons to be learned on this issue as well. An analysis and conclusion on whether the Director facilitated or frustrated the access of extended family is beyond the scope of this judicial review. [ 133 ] While access in the future may be possible, and indeed it is my sincere hope that it will one day happen, it is apparent any access at this stage is premature.

The wounds inflicted on both sides are too fresh. Emotions may well settle with time and distance. The ultimate decision, however, should rest with Jane Doe, Vincent’s mother: CYFE Act , s 72. [ 134 ] Just as Belzil J ordered in KM v Director ( Child, Youth and Family Enhancement Act ) , 2013 ABQB 620 at para 137 , 2013 CarswellAlta 2044, Jane Doe will have unfettered discretion in determining whether access to the maternal birth family should be granted, and if so, under what conditions. At Jane Doe’s discretion, and at the Director’s expense, Jane Doe may obtain an opinion from a Child Expert such as Dr.

Caniff, as to whether access to the Applicant and other family members is in Vincent’s best interest, and if so,

how that access should be facilitated and under what conditions. I am confident Jane Doe will consider this request and do what is in herson’s best interest. [135] I appreciate it is difficult for the Applicant to hear that she has been treated unfairly only to hear that the Court declines to grantthe relief she seeks. Know that this decision was not made lightly. This application brought the processes and procedures of the Directorunder scrutiny. I am optimistic that the Director will carefully consider my Reasons, and take the necessary steps to address the Court’sconcerns. VIII.

Costs [136] Rule 10.33 in the Rules of Court provides me with significant discretion in the award of costs. An award of costs is one of theways a Judge can send a message of condemnation for the actions of a party. Responsibility for the antecedent events to this applicationrests solely at the feet of the Director.

Further, the Director’s failure to make full and complete disclosure to the Court when submittingthe Adoption Application is a conduct deserving of sanction, particularly because it has been the subject of judicial comment on previousoccasions: Steeves v English, 2004 ABCA 195 at para 21, 6 RFL (6th) 125, citing, Jackson v Trimac Industries Ltd (1993), (AB KB), 138 AR 161 at 172 (2 and 4) (Alta QB). [137] The Director is ordered to pay the costs of the child, the Applicant and Jane Doe, on a solicitor and client basis. This includesfees and disbursements paid directly, or as a result of liability to Legal Aid.

With respect to Jane Doe, this will also include those costsincurred in preparing and filing her Application for Guardianship. These costs may be assessed before an Assessment Officer, at therequest of the Director. Heard on the 26th day of August, 2016. Dated at the City of Edmonton, Alberta this 31st day of August, 2016. Dawn Pentelechuk J.C.Q.B.A. Appearances: Denise Harwardt and Lindsey Smithson of Alberta Justice and Solicitor General for the Alberta (Minister responsible for the Child, Youth and Family Enhancement Act); Alberta (Director of the Child, Youth andFamily Enhancement Act) James R.

Weir Public Trustee for the Public Trustee (not appearing) April C. Kellett of A.C.K. Law for the Applicant Cindy D. Turner of Johnson Turner Lefaivre for the adoptive parent Jane Doe

Kenneth J. Alyluia Gledhill Larocque for the Child _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Madam Justice Dawn Pentelechuk _______________________________________________________ The word “Minister” has been corrected on the

(1) Respondent’s name;

(2) Page 7, para 53 and (3) and counsel appearance part of the judgment.