JSG Appellant - v. -, 2016 ABQB 510

Court of Queen’s Bench of Alberta Citation: JSG v Alberta ( Child, Youth and Family Enhancement Act , Director), 2016 ABQB 510 Date: 20160914 Docket: FL03 48442 Registry: Edmonton Between: JSG Appellant - and - Director of Child and Family Services Respondent Restriction on Publication Identification Ban – See the Child, Youth and Family Enhancement Act ,

section 126.2 . No one may publish the name or photograph of a child, or of the child's parent or guardian, in a 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. _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ Appeal from the Orders by the Honourable Judge M.J Savaryn Dated the 23 rd day of October, 2015 and Filed on the 23rd day of November, 2015 ( Docket: CP903 000871)

I. Introduction [ 1 ] On October 23, 2015, a Provincial Court judge made two orders: (

i) a permanent guardianship order (PGO), appointing the Director of Child and Family Services (the Director) as guardian of SNG (the child) and (ii) a post-PGO access order granting the child’s mother (the Mother) conditional access to the child. The child was less than two years old when the orders were made. [ 2 ] The Mother appeals from the orders. She seeks an order setting aside the PGO and the post-PGO access order. In the alternative, she seeks an order substituting the PGO with a temporary guardianship order (TGO) and granting her access to the child.

In the further alternative, she seeks an order returning the child to her under the terms of a supervision order. [ 3 ] The Director and counsel for the child seek the dismissal of the Mother’s appeal. II. Background [ 4 ] The child was apprehended for the first time in December 2013, when she was just two days old.

She was returned to the Mother in February 2014, following an initial custody hearing. [ 5 ] In April 2014, the Director and the Mother entered into a family enhancement agreement for a period of three months. [ 6 ] The child was apprehended again in September 2014, pursuant to an apprehension order made on September 11, 2014. She has been in the Director’s care since then. [ 7 ] On September 15, 2014, the Director filed an application for a six-month TGO regarding the child. [ 8 ] On September 24, 2014, the Mother filed an appeal from the apprehension order.

That appeal was stayed by a Court of Queen’s Bench judge on October 1, 2014. [ 9 ] On October 16, 2014, an initial custody hearing was held. The resulting orders gave the Director custody of the child until the conclusion or withdrawal of the TGO application; required the Mother to attend for, and comply with the recommendations from, a neuropsychological assessment and a parenting assessment; and gave the Mother reasonable access to the child, to be supervised in the discretion of the Director. [ 10 ] On November 12, 2014, the Mother filed an appeal from the October 2014 orders.

That appeal was adjourned several times, and eventually stayed by the Court of Queen’s Bench case management judge on November 24, 2015 (more than a year after it was filed). [ 11 ] On January 7, 2015, a Court of Queen’s Bench judge denied the Mother’s application for a stay of the October 2014 orders pending her appeal. [ 12 ] On February 9, 2015, an interim order was made suspending access between the child and the Mother pending the completion of a review of access hearing (scheduled for March 19, 2015) and a further court order. [ 13 ] On February 26, 2015, a Court of Queen’s Bench judge was appointed to case manage the Mother’s appeal from the October 2014 orders, and the Mother was advised that she could not file any applications with the Court of Queen’s Bench without prior leave from the case management judge. [ 14 ] On March 6, 2015, the TGO application was amended to request a PGO.

Consequently, the trial dates that had been obtained for the hearing of the TGO application (April 13-17, 2015) were released. [ 15 ] On March 19, 2015, an interim order was made providing that, if the Mother agreed that psychologist Dr. Graham Ross could be present for her access visits with the child, then certain access visits could occur.

Otherwise, access would be suspended pending a further court order. [ 16 ] On March 26, 2015, a Provincial Court judge granted an application the Mother’s then counsel made to withdraw from the record. [ 17 ] On April 2, 2015, a Provincial Court judge said she would case manage the matter and directed the Mother not to file any applications with the Provincial Court without her consent. [ 18 ] The Mother attended for a parenting and psychological assessment with Dr.

Ross between February and April 2015. [ 19 ] The last time the Mother saw the child, prior to the commencement of the PGO trial, was on April 14, 2015, when she saw the child as part of the parenting and psychological assessment. [ 20 ] On April 17, 2015, an access order was made providing that the Mother would have three supervised visits with the child per month. [ 21 ] The Mother failed to attend for a neuropsychological assessment that was scheduled for April 29 and 30, 2015. [ 22 ] On May 27, 2015, another access order was made.

It suspended the access granted to the Mother in the April 2015 order unless the parties could agree on reasonable access. It also provided that any access would be supervised by the Director.

[ 23 ] On June 11, 2015, the Provincial Court case management judge granted an application the Mother’s replacement counsel made to withdraw from the record. [ 24 ] The Mother attended for a neuropsychological assessment with psychologist Dr. Lloyd Flaro on September 10 and 11, 2015. [ 25 ] The PGO trial was scheduled to be heard over eight days, on September 21-25 and 28-30, 2015. III. Adjournment Application [ 26 ] On September 17, 2015, four days before the PGO trial was scheduled to begin, the Mother sought an adjournment.

Her main reason for seeking an adjournment was that there were outstanding issues regarding her court-ordered neuropsychological assessment. She wanted an opportunity to comply with any recommendations that might flow from the neuropsychological assessment she completed the week before. The Mother’s second reason for seeking an adjournment was that her counsel’s involvement on the file was very recent; he had only received the Legal Aid certificate and the voluminous disclosure package around one month earlier. [ 27 ] Counsel for the Director and the child’s counsel opposed the adjournment application.

They argued that the Mother’s counsel had had sufficient time to prepare for the PGO trial, and that the Mother was responsible for causing the outstanding issues regarding her court-ordered neuropsychological assessment. The Director’s counsel explained that the Mother had refused to attend for the neuropsychological assessment until the last minute; that when she did attend she did not put in a meaningful effort, leading Dr. Flaro to deem the assessment results invalid; and that Dr.

Flaro was still working on his report. [ 28 ] At the end of the adjournment application hearing, the trial judge refused the Mother’s application (with reasons to follow) and directed that the PGO trial would proceed as scheduled. [ 29 ] The trial judge delivered his reasons for refusing the Mother’s adjournment application first thing on September 21, 2015. In a nutshell, he concluded that the Mother’s application lacked a proper basis; and that an adjournment of the PGO trial would cause unreasonable delay and be contrary to the best interests of the child. IV.

PGO Trial [ 30 ] The PGO trial began on September 21, 2015, shortly after the trial judge delivered his reasons for refusing the Mother’s adjournment application. The Director, the Mother and the child were all represented by counsel. The child’s father, CT, did not attend the trial and no one appeared on his behalf. [ 31 ] Twenty-five witnesses testified over the course of seven days.

The witnesses included three psychologists (who were qualified as experts), eleven police officers, three Child and Family Services (CFS) caseworkers, a former CFS casework supervisor, a CFS office manager, two family wellness workers, a health information manager, a supported access worker, the Mother, and the Mother’s maternal grandmother. [ 32 ] There were fifty trial exhibits, including two occurrence reports prepared by police officers who did not testify. [ 33 ] As the trial judge’s reasons are not published, I will refer to, and quote from, them in some detail. A.

Trial Judge’s Evidence Review and Findings [ 34 ] In lengthy oral reasons, the trial judge summarized the parties’ arguments and then embarked on an extensive review of the evidence. He said his evidence review was important: because the case is primarily about mother’s behaviours, about which she appears to have no insight, resulting from her as yet unresolved and undiagnosed mental health issue of longstanding extreme and practically constant emotional dysregulation, described otherwise by Dr. Ross as characterological, a euphemism, according to Dr.

Flaro, for personality disorder and how these behaviours impact and put the child at risk.

There are also the lurking secondary issues and risks posed by a continuing history of mother’s relationship with the father and the domestic violence and substance abuse this exposes the child to: Trial Transcript (TT) at 777/35- 778/1. [ 35 ] In conducting his evidence review, the trial judge divided the evidence of the Director’s witnesses into seven categories: i. evidence of the Mother and the father being together, and the risks posed to the child in those circumstances; ii. evidence supporting the Director’s significant concerns of neglect; iii. evidence of the risks the Mother poses to the child due to her “character and nature of chronically escalating without provocation and being emotionally totally out of control” (TT at 780/17-19); iv. evidence of the effect the Mother’s behaviours had on the child; v. evidence of the Mother’s access visits and parenting during those visits; vi. evidence of the Mother’s level of cooperation with supports; and vii. the expert evidence.

[ 36 ] After completing his review of the evidence of the Director’s witnesses, the trial judge reviewed the evidence of witnesses called by the Mother’s counsel; that is, the evidence of the Mother and a supported access worker who supervised the Mother’s access visits in January and February 2014 (following the child’s initial apprehension). The trial judge also made a brief reference to a portion of the evidence of the Mother’s maternal grandmother: TT at 798/21-22. [ 37 ] Regarding the evidence of the Mother’s access visits, the trial judge noted that two of the witnesses, Dr.

Ross and Jeannette Thompson, gave evidence that did not accord with the evidence of the other witnesses. In an effort to resolve the inconsistency in the evidence, the trial judge held: I find the visits observed by Dr. Ross were unique certainly in recent history in that mother did not escalate at these. They were not normal visits for this mother. A couple of reasons come to mind. Dr. Ross indicated one; no demands were made of mother, not even to terminate the visit on time, which she didn’t, though being cued.

Also, although she was angry and said so while doing the assessment, testifying she was also scared, these visits being part of the assessment, she was trying her very hardest not to lose control at these very special observation meetings, as I believe she was doing during her seven days in trial, although here, too, she, it was indicated, vented in the anteroom and didn’t adhere to court scheduling by being quite late. What is mother’s normal is what all others observed of mother’s behaviours in the last year or more.

In fact, after the [April 17, 2005 access] order, mother was back out of control so much so that even the very first access visit could not happen: TT at 787/8-21. [ 38 ] Later, when reviewing the evidence of Ms. Thompson, the supported access worker called by the Mother’s counsel, the trial judge observed: [H]er testimony seems to conflict with the universality of all others regarding the mother’s typical presentation as does Dr. Ross’s during the two observations with the child ... We hear from Ms.

Thompson that although she didn’t have access to her notes, her recollection of the ten visits or so she supervised over four to six weeks was very positive: TT at 793/36-794/2. [ 39 ] Before reviewing the Mother’s evidence, the trial judge said: Where there is a problem with anyone, it was never the mother’s fault, and she denied all escalations or wrongdoing and evidence of negative behaviours, although she did have enough insight to be able to identify and deny practically all the evidence of risk to [SNG], including being in a relationship with the father, yet some of her answers disclosed this insight to be but a thin veneer, particularly when she repeatedly says that she would not argue or yell or swear in [SNG’s] presence then denies every single incident of what seems to be a chronic tendency to escalate and scream even in [SNG’s] absence, not realizing how incredible such denials would be: TT at 794/16-23. [ 40 ] And, after reviewing the Mother’s evidence, the trial judge said: Mother’s total lack of insight is very sad. [JSG] is not well and does not know it.

In fact, she struggles fiercely and angrily against even a hint of such a suggestion, and as Dr. Flaro noted, quote, “If you’re a parent and your child is in care, I would assume you would do what’s necessary to get the child back. Yes, there may be stress, but to keep that objective in mind would be of significant importance.” Mother failed to do this despite the mountains of explanation, support, and encouragement. After resisting doing the assessments for so long, she did not benefit by them since they neither gave her more insight nor has she followed their recommendations.

Although she indicates she’s prepared to see a psychiatrist, she will only do this on her own impossible terms, namely, return the child first, and despite hearing the experts give evidence both at a hearing and at trial, she still does not accept their findings, believing she has no mental health issues, so clearly her motivation for treatment would be low, especially in context of her resistance to it for the last year while her child has been in care, and so her promises to this Court to go to treatment and apply herself remain very suspect: TT at 797/18-31. [ 41 ] The trial judge went on to say that the evidence led him “to believe that the parents are still in a relationship”; and supported findings that (i) “the father suffers from longstanding and current severe addictions, [and] leads a high-risk lifestyle” and (ii) the Mother: suffering from her unresolved mental health issues with her dysregulated emotions/personality, chronic, and escalations in anger would expose [SNG] to violence, domestic violence, instability, severe disharmony, substance abuse, all further complicated by mother’s significant cognitive challenges, thus exposing the child to unacceptable risk of neglect and emotional injury as defined in CYFEA ”: TT at 798/25-34. [ 42 ] The trial judge also found that, based on the evidence, “there is significant risk of mother triggering physical altercations in the community due to her emotional dysregulation.” He said: It is in her nature to provoke arguments and escalate them to where they are out of control, requiring police intervention in order to keep the peace, as the evidence of the 119 police incident reports indicate.

Her disorder so obviously present is as yet specifically undiagnosed as an adult. Her disorder was variously diagnosed and intensely treated during her youth and goes back a decade. Worst of all, mother lacks any insight into her behaviours and the risks posed to this child by her hair trigger emotional volatility and minimizes or denies incident after incident related under oath in this trial: TT at 799/33-41. [ 43 ] The trial judge referenced the evidence regarding the effects the Mother’s escalations had, and would have, on the child.

After summarizing the relevant opinion evidence of the three experts who testified, the trial judge said: I found [their] evidence ... on the effects of exposure to emotional escalation on children extremely relevant, necessary, and reliable and consider it significant and helpful as it sheds light on the issue of potential risk to [SNG] in our case: TT at 800/31-35.

He then said: Furthermore, the evidence is if [SNG] was crying five minutes, mother would start tearing, and if in the next five minutes, she didn’t stop, [JSG] would raise her voice and demand that [SNG] stop, and here, one has to wonder if not for the presence of the visit supervisor, would mother have lost control with the child. I find it poses an unreasonable risk: TT at 800/35-39.

[ 44 ] Later, the trial judge said: There seems to be no way to protect the child from emotional injury because of mother’s escalations, anger, and out of control behaviours. It is unusual that months prior to a PGO trial, access is suspended, but the evidence shows that under the circumstances it was in the child’s best interest to do so. The child was being traumatized by mother’s behaviours at the visits: TT at 801/19-23. [ 45 ] The trial judge considered the expert evidence regarding the Mother’s mental health history, and current functioning and prognosis. He said: I found Ms.

Spencer’s evidence regarding the mother relevant, necessary, and reliable certainly with regard to mother’s past mental health treatment and history and how it confirms the longstanding nature of mother’s mental health symptoms.

This applies also to the hypotheticals posed to her regarding mother’s current functioning and prognosis, while always keeping in mind her caveats due to her not having treated or assessed mother in some six years, which would affect the weight given to some opinions regarding mother’s current functioning and prognosis: TT at 802/30-37. [ 46 ] The trial judge also said he found the evidence of Drs.

Ross and Flaro, “regarding the timelines and difficulties in diagnosing and treating mother’s emotional dysregulation and the potential risk to [SNG] due to exposure to it extremely relevant, necessary, and reliable.” He considered their evidence to be “significant and helpful” as it shed light on the issue of when the Mother can be expected to have addressed her mental health issues and, consequently, pose less risk to the child: TT at 803/9-15 and 803/28-36. [ 47 ] After recapping the Mother’s testimony, the trial judge said: I find mother’s testimony confirms the observations of the experts.

Mother’s practically universal denials of the truthfulness of the negative observations by the many witnesses in this trial are incredible. I agree with the director that there is complete lack of transparency, for instance, about her relationship with the father being over or that she will or is able to end it, despite her assertions to the contrary. The evidence discloses over and over again that she, mother, is not credible. She may believe that what she says is true, but this would be a function of her total lack of insight.

Credibility is indeed an issue, when practically everything negative anyone testifies about mother and her behaviours she claims as being untrue. I find wherever there is a conflict in the evidence with mother’s version, I cannot accept her version: TT at 804/11-20. B. Trial Judge’s PGO Decision [ 48 ] Ultimately, the trial judge made a PGO appointing the Director as guardian of the child (the PGO).

He concluded that the child is in need of intervention; her survival, security, or development cannot be adequately protected if she is returned to the Mother; and it cannot be anticipated that the child could or should be returned to the Mother’s custody within a reasonable time. In other words, he concluded that the requirements in section 34(1) of the Child, Youth and Family Enhancement Act , RSA 2000, c C-12 (the Act ) were met. In reaching that conclusion, the trial judge considered the best interests of the child; the circumstances listed in section 1(2) of the Act ; the matters listed in

section 2 of the Act ; the child’s cumulative time in the Director’s care (under

section 33 of the Act ); and the viability of the option of making a TGO, rather than a PGO. [ 49 ] The trial judge held: Addressing the director’s application for permanent guardianship order and having regard to the Act , CYFEA , particularly sections 2 , sections 33 and 34, on the basis of the totality of the evidence, which I have so extensively reviewed, addressing the requirements of

section 34, [SNG] is clearly in need of intervention as there are reasonable and probable grounds to believe [SNG]’s survival, security, or development would be endangered as indicated in the evidence if with the guardian mother or either of the parents, the situation not having materially changed with either of the parents since [SNG]’s apprehension September 11 th , 2014, and clearly, [SNG]’s survival, security, or development cannot be adequately protected if she is returned to her guardian mother or the father because of the aforementioned reasons as evident in the evidence, but again, a

summary: There is overwhelming evidence of risks, under sections 1(2) (c), of neglect by both guardians due to inadequate care and supervision and emotional injury; under section 1(2) (f), due to having issues with child development, cognitive challenges, emotional dysregulation, as well as exposure to domestic violence and chronic substance abuse through the father.

There’s also risk, under (2)(d), of physical injury; under (2)(e), of inability to protect child from physical injury; under (2)(f), that there’s been emotional injury already; and (g), guardian is unable to protect child from emotional injury, and despite the interventions and supports of the department since August last year, the mother and the father have failed to engage or progress in addressing the various concerns: TT at 797/33-798/10. [ 50 ] The trial judge also held: The Court being a statutory instrument, CYFEA clearly mandates any decision be in the best interests of the child, considering, among other things, the benefits to the child of stability and continuity of care and relationships and that there should be no unreasonable delay in making or implementing a decision affecting a child, all of which clearly favours a permanent guardianship order presently.

There is no other viable option that would protect the safety, security, or development of [SNG]. The father has been absent for the entire process and is by all accounts entrenched in a high-risk lifestyle, suffering with longstanding drug and alcohol addictions. Mother does not have a glimmer of understanding that she’s been consistently and, I think, obliviously putting her interests ahead of [SNG]’s. The latest and most serious result being the suspension of access, despite her past demonstrations of care and love for the child at visits.

Mother has resisted working on her issues and insisted the child be returned under a supervision order immediately, as she does not believe she has any mental health problems and is not forthright about her relationship with the father: TT at 805/10-23. [ 51 ] Finally, the trial judge held: Mother’s lack of insight and refusal to cooperate has even spilled into this trial with mother testifying that she will not take medications and will only see a psychiatrist if the child is returned to her, and so her lack of insight continues to be her insurmountable barrier against any hope for the return of her child.

She is unable to function in society in her current state, let alone care for a vulnerable young child

without injuring her emotionally and developmentally, and so I find that it cannot be anticipated that this child, [SNG], could or should be returned to the custody of her guardian within a reasonable time, which, given [SNG]’s time in care, would be up to a further six months as contemplated by section 33(3). It is clear that mother has shown no insight and made no progress in treating her emotional dysregulation or in addressing the risks of [SNG]’s exposure to domestic violence and chronic alcohol and drug abuse in her continuing relationship with the father.

I’m not satisfied that there are good and sufficient reasons to grant a ... TGO under section 33(3), and nor can it be anticipated that the child may be returned to the custody of the child’s guardian within a six-month period. Accordingly, and having carefully considered sections 33 , 34, as well as the matters to be considered in

section 2 and other relevant sections of the Child, Youth and Family Enhancement Act , I’m making a permanent guardianship order appointing the director as the guardian of [SNG] and find it is in [SNG]’s best interests to do so, this being the Court’s primary consideration. The director is now the sole guardian of [SNG]: TT at 805/25-806/2. C. Trial Judge’s Post-PGO Access Decision [ 52 ] In considering the Mother’s request for access visits, the trial judge reviewed Dr.

Ross’ recommendations and then said, “I’m making [a conditional] post-PGO access order as I believe that it would be in the child’s best interests, particularly in her older years, to at some point have a healthy mother she may wish to connect with”: TT at 810/36-39. [ 53 ] The post-PGO access the trial judge granted to the Mother is subject to these conditions: (

i) Prior to any access: a. the Mother shall attend for a psychiatric evaluation; b. the Mother shall engage in the most intensive treatment recommended; c. the Mother shall be evaluated by her psychiatrist after six months of treatment, for the purpose of considering whether her access with the child should resume; and d. the Mother shall obtain a recommendation from her psychiatrist that her access with the child can be resumed without risking emotional harm to the child. (ii) The Mother’s access will commence once the conditions in (

i) are met. (iii) The Mother’s access will be supervised in the discretion of the Director. (iv) An adoption order regarding the child will terminate the Mother’s access (the post-PGO access order). V.

Appeals from the PGO, the Post-PGO Access Order and the Order Denying the Mother a Stay [ 54 ] On November 18, 2015, the Mother filed an appeal from the PGO and the post-PGO access order (this appeal). [ 55 ] On November 23, 2015, the Court of Queen’s Bench judge appointed to case manage the Mother’s appeal from the October 14, 2014 orders began case managing this appeal as well. [ 56 ] On December 4, 2015, the Mother filed an application for a stay of the PGO and the post-PGO access order pending this appeal.

That application was denied by the Court of Queen’s Bench case management judge on December 14, 2015. [ 57 ] On January 4, 2016, the Mother filed an appeal from the denial of the stay. That appeal was deemed abandoned by the Court of Appeal on May 10, 2016. [ 58 ] I heard the Mother’s appeal from the PGO and the post-PGO access order on August 19, 2016. VI. Grounds of Appeal [ 59 ] The Mother raises numerous grounds of appeal. She says the trial judge: (

i) erred in failing to grant her an adjournment of the trial; (ii) erred in his consideration of sections 2 and 34 of the Act ; (iii) erred in granting a PGO, instead of a TGO; (iv) erred in finding that contact with her was harmful to the child; (

v) erred in failing to find that the Director’s employees discriminated against her; (vi) erred in accepting and relying on the evidence of Dr. Spencer; (vii) did things that gave rise to a reasonable apprehension of bias; and

(viii) imposed conditions on her post-PGO access that were not based on proper evidence. VII. Applicable Standards of Review and Mother’s Onus [ 60 ] An adjournment decision is usually entitled to deference.

However, “when a parent’s right to procedural fairness is engaged”, an adjournment decision must be reviewed on the correctness standard: KB v Alberta (Director of the Child, Youth and Family Enhancement Act) , 2015 ABCA 278 at para 26 , 23 Alta LR (6th) 221 , citing AR v Alberta ( Child, Youth and Family Enhancement Act , Director) , 2014 ABCA 148 , 575 AR 36 . [ 61 ] I cannot interfere with the trial judge’s PGO decision unless I determine that he “acted on a wrong principle or disregarded material evidence”, or that his “decision is otherwise clearly wrong”: EG v Alberta (Child and Family Services) , 2014 ABCA 396 , [2014] AJ No 1313 (QL) at para 15 , citing MT v Alberta (Director of Child Welfare) , 2005 ABCA 125 at para 24 , 363 AR 306 . [ 62 ] In order for me “to interfere with the trial judge’s findings of fact, or inferences drawn from facts there must be palpable and overriding error”: EG at para 15 , citing RW v Alberta (Child, Youth and Family Enhancement Act, Director) , 2011 ABCA 139 at para 14 , 502 AR 379 . [ 63 ] Finally, the Mother “bears the onus of demonstrating that the conduct of the [trial] judge gave rise to a reasonable apprehension of bias”: Nazarewycz v Dool , 2009 ABCA 70 at para 63 , 448 AR 1 .

VIII. Analysis A. Did the trial judge err in failing to grant the Mother an adjournment of the trial? [ 64 ] The Mother argues that the trial judge erred in refusing her an adjournment of the PGO trial; however, she provides no basis for her argument. [ 65 ] The Mother does not allege that she was denied a fair hearing because the trial judge refused her an adjournment; and there is no suggestion that the Mother’s counsel was unable to effectively present the Mother’s case.

In fact, although the Mother’s counsel suggested he needed more time to prepare for the PGO trial during the adjournment application hearing, he also assured the trial judge that he would be ready for the trial if the application was refused. Moreover, before the trial judge gave his oral reasons for refusing the adjournment application, the Mother’s counsel indicated that he had “had sufficient opportunity to go through the disclosure and all” and was ready to proceed. [ 66 ] In any event, in his reasons for refusing the Mother’s adjournment application, the trial judge correctly acknowledged (

i) that the application had to “be considered in light of the child’s need for stability, continuity of care and a timely resolution”; (ii) that the child’s best interests had to prevail if they came into conflict with the Mother’s right to a fair hearing; and (iii) that “there should be no unreasonable delay in making or implementing a decision affecting a child”: TT at 4/22-40, quoting AR at paras 17-18 and s 2(

o) of the Act . [ 67 ] In AR , the Court of Appeal set out a number of other factors that ought to be considered on an application to adjourn a PGO trial (in circumstances where the parent is seeking a further opportunity to participate effectively through the assistance of counsel, after foregoing such an opportunity).

Those factors include “the circumstances of the [child], the length of the delay, the reason for the adjournment, the urgency of the matter, the effect of an adjournment on the child’s placement, and whether the child will remain in parental care or under temporary state guardianship in the interim”: AR at para 20 . [ 68 ] I am satisfied that the trial judge considered all of these factors in making his adjournment decision.

He considered the circumstances of the child, including the fact that she had been in the Director’s care for most of her life, and the fact that counsel for the child had said she had been doing much better since the Mother’s access was suspended. He considered the length of the delay an adjournment would cause; that is, he considered the fact that if he granted an adjournment, the trial would not be heard for another eight months. He considered the Mother’s main reason for seeking an adjournment; that is, the outstanding issues regarding her court-ordered neuropsychological assessment.

Finally, he considered the urgency of the matter, given that the child had already been in the Director’s care for a lengthy period of time and would remain in the Director’s care in the interim. [ 69 ] The trial judge also said he did not think he would be denying the Mother her right to procedural fairness by refusing her adjournment application.

He said this because he concluded that the Mother had caused the outstanding issues regarding her court- ordered neuropsychological assessment, by refusing to attend for the assessment “until the eleventh hour”, and by failing to put in a meaningful effort when she did attend for the assessment (which led Dr. Flaro to deem the assessment results invalid): TT at 3/27-33 and 4/12-15.

Moreover, the trial judge accepted the argument (made by counsel for the Director and the child’s counsel) that, given the Mother’s complete lack of progress in seeking help for her mental health issues, it was highly unlikely that an adjournment would allow her to establish (at the PGO trial) that the child could be returned to her custody within a reasonable time: TT at 3/12-20. [ 70 ] Having considered all the relevant factors, the trial judge concluded that the child’s best interests (including her need for stability, continuity of care, and a timely resolution of her situation) far outweighed any prejudice the Mother would suffer as a result of his refusal of her adjournment application.

He also concluded that an adjournment of the PGO trial would cause precisely the type of “unreasonable delay” that is prohibited by

section 2 (

o) of the Act . He refused the adjournment application accordingly. [ 71 ] I am satisfied that the trial judge was right to refuse the Mother’s adjournment application. His decision was correct.

B. Did the trial judge err in his consideration of sections 2 and 34 of the Act ? [ 72 ] The Mother argues that the trial judge failed to consider all the relevant matters listed in

section 2 of the Act . More specifically, she says the trial judge failed to “focus on the child’s family unit” and consider “whether everything that could be done to try to return the child to [her] had been done.” [ 73 ] In order to make a PGO, a court must be satisfied that the requirements in section 34(1) of the Act are met. That is, a court must be satisfied that: (

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

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

c) it cannot be anticipated that the child could or should be returned to the custody of the child’s guardian within a reasonable time. [ 74 ] Section 1(2) of the Act provides that “a child is in need of intervention if there are reasonable and probable grounds to believe that the survival, security or development of the child is endangered because of any of” several listed circumstances. These are some of the listed circumstances: that “the child is neglected by the guardian”, that “the child has been emotionally injured by the guardian”, and that “the guardian ... is unable or unwilling to protect the child from physical [or emotional] injury”: s 1(2)(c), (e), (

f) and (g). [ 75 ] Where a child is determined to be in need of intervention,

section 2 of the Act requires that any decision relating to the child be made “in the best interests of the child”.

Section 2 also sets out an extensive, but non-exhaustive, list of matters that must be considered by a court making a decision relating to the child.

Some of the listed matters include: “the family is the basic unit of society and its well-being should be supported and preserved”; “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”; a child receiving care under the Act should have a care plan that “addresses the child’s need for stability, permanence and continuity of care and relationships”; and “there should be no unreasonable delay in making or implementing a decision affecting a child”: s 2(a), (e)(ii), (m)(

i) and (o). [ 76 ]

Section 33 of the Act provides some guidance for determining what might be “a reasonable time” within which to return a child to the custody of the child’s guardian. It provides that a child who is in the Director’s care under a custody order or a TGO, and who is under the age of six years, should not be in care for more than nine months.

It further provides that, if the nine-month maximum is exceeded, a court can “make one temporary guardianship order for one period of not more than 6 months if the Court is satisfied that ... it can be anticipated that the child may be returned to the custody of the child’s guardian within the period of the order”: s 33(3). [ 77 ] The trial judge referenced and considered all of these provisions, and concluded that each of the three requirements in section 34(1) was met.

Regarding the first requirement, the trial judge concluded the child was in need of intervention because he determined that, based on the evidence, there were reasonable and probable grounds to believe that her survival, security or development was endangered due to the presence of several of the listed circumstances in section 1(2) . [ 78 ] Regarding the second requirement, the trial judge concluded that the child’s survival, security, or development could not be adequately protected if she was returned to the Mother for the same reasons he determined the child was in need of intervention.

More specifically, he concluded there was overwhelming evidence of risks of neglect, physical and emotional injury, and the Mother’s inability to protect the child from physical and emotional injury. In considering the second requirement, the trial judge acknowledged that his decision had to be in the best interests of the child, and that he was required to consider the matters listed in

section 2 . He specifically referenced two of those matters, namely “the benefits to the child of stability and continuity of care and relationships and that there should be no unreasonable delay in making or implementing a decision affecting a child”: TT at 805/10-13, referencing s 2(m)(

i) and (o). The trial judge was satisfied that, based on the evidence, granting a PGO was the only way to “protect the safety, security, or development of [SNG]”: TT at 805/14-15, referencing s 2(e)(ii). [ 79 ] Regarding the third requirement, the trial judge referenced section 33(3), and held that, given the child’s time in care (which was already more than the maximum set out in section 33(2)), a reasonable time would be a further six months.

The trial judge concluded it could not be anticipated that the child could, or should, be returned to the Mother’s custody within six months because she still lacked insight regarding her behaviours, and had “made no progress in treating her emotional dysregulation or in addressing the risks of [SNG’s] exposure to domestic violence and chronic alcohol and drug abuse in her continuing relationship with the father”: TT at 805/33-36. [ 80 ] The trial judge was clearly aware of the relevant provisions of the Act . He addressed all of them, including

section 2 , in determining that the requirements in section 34(1) were met. Although the trial judge did not specifically reference the matters the Mother argues he should have, he cannot be faulted for his failure to do so. While

section 2 identifies the family as “the basic unit of society”, and encourages the support and preservation of the family’s well-being, it acknowledges that “a child should be removed from the child’s family ... when other less disruptive measures are not sufficient to protect the survival, security or development of the child”: s 2(

a) and (e)(ii). In this case, based on the evidence and having considered the relevant provisions of the Act , the trial judge was satisfied that granting a PGO was his only viable option as it was the only way to protect the child’s survival, security, or development. He explained why returning the child to her Mother (within a reasonable time) was not a viable option; that is, he outlined the risks the child would face if she was returned to the Mother, and the Mother’s lack of progress in addressing those risks. [ 81 ] The trial judge did not err in principle in considering sections 2 or 34 of the Act . C.

Did the trial judge err in granting a PGO, instead of a TGO? [ 82 ] The Mother argues that the trial judge erred in making a PGO, instead of a TGO; however, she does not develop her argument.

[ 83 ] The trial judge considered whether making a TGO was a viable option in the circumstances, and concluded it was not. He said: Was any progress made in the last year? Mother’s approach was to deny all problems and litigate. It’s one thing to express your right to appeal, altogether another to disregard and disobey court orders to do assessments by delaying, then ignore their recommendations.

Her approach has most effectively frozen any possibility of real progress, and as I indicated in my decision refusing an adjournment, argued also by child’s counsel, quote, “the child’s interests are paramount.” One might realistically wonder if the Court granted one final – I will add “unreasonable” – temporary guardianship order to engage with a psychiatrist, will she appeal this too or work as she needs to. She has answered this very clearly in her testimony. When asked if she would see a psychiatrist if the child were not returned to her, her answer? “Why should I?” Her evidence is she will not.

After all this evidence, after [SNG] being in care so long and now after months of her access being suspended, knowing since April that she needs to see a psychiatrist, she still sees no problem, no need. In any case, the experts have indicated the timelines for her addressing her mental health issues exceed the six months open to this Court under section 33(3) if one factors in the time required for referral and diagnosis by a psychiatrist, even with Dr.

Flaro’s best case scenario of mother suddenly gaining insight and cooperating with six months’ treatment, which I find would be extremely unlikely given her history. The prerequisite to treatment is some insight and a willingness to work with others, and mother has none, so at this time, there is no reasonable prospect. I think Ms. Spencer’s estimate of two years realistically and Dr.

Ross’s minimum one year estimate are more reasonable: TT at 804/22-805/1. [ 84 ] Based on these reasons, and my analysis in the previous section, I am satisfied that the trial judge committed no reviewable error in making a PGO, rather than a TGO, in this case. The trial judge acknowledged that, given the length of time the child had been in the Director’s care, he could only make a TGO for one period of up to six months under section 33(3) of the Act .

He concluded it would be unreasonable for him to make such a TGO as it could not be anticipated that the Mother would address her mental health issues (and, consequently, be in a position to have the child returned to her custody) within six months.

The trial judge concluded it was unlikely that the Mother would address her mental health issues within six months because she lacked insight regarding her mental health issues; she had made no progress in addressing her mental health issues; she was unwilling to seek psychiatric treatment; and two of the three experts estimated it would take her much longer than six months to address her mental health issues with psychiatric treatment. [ 85 ] I can see no reason to interfere with the trial judge’s conclusion that making a TGO was not a viable option in this case. D.

Did the trial judge err in finding that contact with the Mother was harmful to the child? [ 86 ] The Mother argues that there was no definitive evidence establishing that contact with her was harmful to the child. She says the trial judge “erred in concluding the child was susceptible to emotional harm as she appeared to withdraw at times.” She notes that the Director did not call a pediatrician, or any witness who could testify about the child’s behaviour during, or immediately after, her access visits.

Consequently, she says the trial judge made his decision in the absence of “clear, cogent evidence about the child.” [ 87 ] Contrary to what the Mother suggests, the trial judge’s findings regarding the harm the Mother has caused the child, and the risks of harm the Mother poses to the child, were well-founded. That is, they were supported by plenty of evidence.

Some of the evidence the trial judge relied on in making his findings included evidence that: • the child suffered a serious burn while in the Mother’s custody, and it did not appear that the Mother had taken her anywhere to get medical assistance; • the Mother has unresolved mental health issues and cognitive challenges; • she routinely provokes arguments and escalates them to where they are out of control and sometimes require police intervention; • exposure to emotional escalations is harmful to children; • the child would be very quiet when the Mother escalated (yelled and screamed) during access visits; • this response was abnormal for a child of her age; • the Mother lacks insight into her mental health issues and related behaviours, and the risks they pose to the child; • the Mother and father remain in a relationship which involves severe domestic disharmony and violence; • the father has severe substance-abuse issues; and • exposure to domestic disharmony, domestic violence and substance abuse is harmful to children. [ 88 ] The trial judge did not make any palpable and overriding errors in finding that the Mother had caused the child harm, and continued to pose significant risks of harm to the child.

E. Did the trial judge err in failing to find that the Director’s employees discriminated against the Mother? [ 89 ] The Mother argues that the trial judge should have excluded the evidence of the Director’s employees because those employees were biased against her. She suggests that the Director’s employees focused on her alleged deficits, and failed to acknowledge her positive attributes. She also suggests that the Director’s employees failed to provide her with the guidance and assistance that she

ought to have received. Finally, she suggests that in light of the fact that no concrete efforts were made to help her, the Director should not have decided to stop her access to the child and pursue a PGO (rather than a TGO). The Mother says the trial judge “erred in failing to recognize the systemic discrimination [she] suffered ... at the hands of the Director.” [ 90 ] It is clear from his reasons that the trial judge heard the Mother’s various complaints about how she was treated by CFS employees and others.

When he summarized the Mother’s evidence, the trial judge noted that the Mother complained that all her problems were caused by others, and were not her fault; that CFS employees took advantage of her, played games with her and ignored her requests; and that she was treated unfairly and inhumanely by CFS employees.

The trial judge rejected these complaints as unfounded, incredible and contrary to the evidence of the CFS employees and other witnesses called by the Director. [ 91 ] The trial judge found that the Mother received “mountains of explanation, support, and encouragement” from CFS employees and others: TT at 797/22-23. He summarized evidence indicating that, despite the Mother’s volatile, aggressive, and threatening behaviour, CFS employees and others made honest efforts to engage with her, and went out of their way to work with her, usually with little success.

The trial judge found that the Mother lacked insight, had “resisted working on her issues”, and had refused to cooperate with those who tried to help her: TT at 805/20-25. [ 92 ] The trial judge provided reasons for accepting the evidence of the CFS employees, and other witnesses the Director called to testify, and rejecting the Mother’s evidence. He said: Mother’s practically universal denials of the truthfulness of the negative observations by the many witnesses in this trial are incredible. I agree with the director that there is complete lack of transparency ...

The evidence discloses over and over again that she, mother, is not credible. She may believe that what she says is true, but this would be a function of her total lack of insight. Credibility is indeed an issue, when practically everything negative anyone testifies about mother and her behaviours she claims as being untrue. I find wherever there is a conflict in the evidence with mother’s version, I cannot accept her version: TT at 804/11-20. [ 93 ] The trial judge did not make any palpable and overriding errors in rejecting the Mother’s various complaints about how she was treated by CFS employees and others.

Thus, there is no merit to the Mother’s argument that the trial judge erred in failing to find that the Director’s employees discriminated against her. Moreover, there was no basis for the trial judge to exclude the evidence of the CFS employees, even if he had concluded that they were biased against the Mother. F. Did the trial judge err in accepting and relying on the evidence of Dr. Spencer? [ 94 ] The Mother argues that the trial judge “incorrectly accepted the evidence of Tanya Spencer.” She says Dr.

Spencer only met with her once in 2009 to conduct a psycho-educational assessment; and, notwithstanding this, counsel were permitted to put hypothetical questions to Dr. Spencer, and Dr. Spencer’s speculations and general comments were accepted as evidence. The Mother says the trial judge erred in giving any weight to Dr. Spencer’s evidence. [ 95 ] Dr. Spencer was qualified as an expert in psychology, child psychology and assessments, and the psychological assessment report she prepared in October 2009 was entered into evidence, without any objection from the Mother’s counsel.

Consequently, she was permitted to give opinion evidence. [ 96 ] From my review of Dr. Spencer’s evidence, it does not appear that she testified to anything that was beyond the scope of her expertise. Moreover, it appears that she was careful to indicate when she was basing her comments on her direct experience with the Mother, and when she was basing her comments on her more general experience as a psychologist. [ 97 ] The trial judge reviewed Dr. Spencer’s evidence in four parts of his decision. In one part, he summarized the evidence Dr.

Spencer gave regarding the negative effects that exposure to emotional escalation, domestic discord and violence, and substance abuse can have on a child: TT at 785/5-29. In another part, he summarized Dr. Spencer’s evidence explaining why a child might go flat, or shut down, when he or she is exposed to emotional escalation: TT at 800/7-13. In the third part, he summarized Dr. Spencer’s involvement with the Mother at Bosco Homes, and the conclusions she drew about the Mother’s mental health issues and intellectual functioning in 2009: TT at 789/24-790/17.

And, in the fourth part, he referenced the predictions Dr. Spencer made (during cross-examination by the Mother’s counsel) about the length of time it might take the Mother to improve her mental health with treatment: TT at 802/21-30. [ 98 ] The trial judge noted that Dr. Spencer’s evidence “on the effects of exposure to emotional escalation on children” accorded with the evidence of the other two experts, and was “significant and helpful as it [shed] light on the issue of potential risk to [SNG]”: TT at 800/31-35. The trial judge also said this about Dr.

Spencer’s evidence: I found [her] evidence regarding the mother relevant, necessary, and reliable certainly with regard to mother’s past mental health treatment and history and how it confirms the longstanding nature of mother’s mental health symptoms. This applies also to the hypotheticals posed to her regarding mother’s current functioning and prognosis, while always keeping in mind her caveats due to her not having treated or assessed mother in some six years, which would affect the weight given to some opinions regarding mother’s current functioning and prognosis: TT at 802/30-37.

This statement demonstrates that the trial judge was cognizant of the limitations of Dr. Spencer’s evidence. At the end of the day, after considering all of the evidence (including the evidence of Dr. Spencer and the other two experts who testified), the trial judge determined that it was extremely unlikely that the Mother could address her mental health issues and, consequently, pose less of a risk to the child, within six months (the maximum length of time a TGO could be made for in the circumstances). [ 99 ] The trial judge made no reviewable errors in accepting Dr.

Spencer’s evidence, and relying on it to the extent that he did. G. Did the trial judge do anything that gave rise to a reasonable apprehension of bias?

[100] The test for determining whether a reasonable apprehension of bias exists is “what would an informed person, viewing thematter realistically and practically – and having thought the matter through – conclude.

Would he think that it is more likely than not that[the decision-maker], whether consciously or unconsciously, would not decide fairly”: Wewaykum Indian Band v Canada, 2003 SCC45, [2003] 2 SCR 259 at para 60, quoting Committee for Justice and Liberty v Canada (National Energy Board), (SCC), [1978] 1 SCR 369 at 394, de Grandpré J, dissenting. [101] In Nazarewycz, the Court of Appeal held that, “[a]n informed person is one with knowledge of all of the relevant circumstances,including an appreciation of the court’s traditions of integrity and impartiality, which duties are undertaken by the judges of the courts.”The Court noted that, “[a]ccordingly, the threshold for a finding of real or perceived bias is high”: para 64. (

i) Trial Judge’s Reasons for Refusing the Adjournment Application [102] The Mother says these passages from the trial judge’s reasons for refusing her adjournment application gave rise to a reasonableapprehension of bias: ...

First, that it is highly speculative that an adjournment would have established that the mother was able to resume parenting within thestatutorily prescribed “reasonable period of time” in answer to any suggestion by the mother’s counsel that recommendations from theparenting and psychological and a valid neuropsych assessments followed through by his client might have allowed this to happen. ... ...

Thirdly, we do not know if anything will turn on a valid neuropsych assessment, but to put this child’s life on hold for another eightmonths in order to allow for an adjournment to give mother an opportunity to repeat the neuropsych assessment is to, firstly, allowmother to benefit by her own two wrongdoings, they being, firstly, by her objecting to submit to this Court-ordered assessment, since itwas ordered last year, until the eleventh hour this month; secondly, by not putting in meaningful effort, according to Dr.

Flaro, and thuscausing an invalid assessment; secondly to assume that mother will not again somehow delay or negate the next assessment, and, givenher record of non-cooperation, this is not a safe assumption; thirdly, it is to ignore statutory timelines and highly speculative that if therewere recommendations arising from some future valid neuropsych assessment which, if mother were to follow over a significant periodof time, contrary to past history, might theoretically allow her to demonstrate over a further reasonable period of time that she canreasonably parent; fourthly, it is to ignore the fact that it has been argued without rebuttal that the parenting and psychologicalassessment describes mother’s parenting risks and challenges as a matter of character, and so slow to change, and that the statutoryreasonable time has already passed even if mother were to suddenly arrive at some insight, become cooperative – again, which she hasnot been historically – and pursue counselling aggressively; fifthly, ... it is to give mother’s dubious and frail rights for an adjournmentunder the current circumstances of priority over those of the child’s best interests ...: TT at 3/13-4/5.

It is the Mother’s position that these passages indicate that the trial judge had already decided, or was inclined to decide, to make a PGO. [103] What the Mother fails to acknowledge is that the trial judge prefaced the impugned passages with this statement, “Counsel forthe child and [the Director] argued the following in objecting to mother’s adjournment application:”: TT at 3/12-13. Thus, the impugnedpassages contain the trial judge’s

summary of the arguments made by counsel for the Director and the child during the adjournmentapplication hearing. [104] The impugned passages indicate that the trial judge heard and considered the arguments made by counsel for the Director andthe child. They do not indicate that the trial judge had already decided, or was inclined to decide, to make a PGO. The passages did notgive rise to a reasonable apprehension of bias. (ii) The Questions the Trial Judge Posed to Dr. Ross [105] The Mother also argues that the questions the trial judge posed to Dr. Ross gave rise to a reasonable apprehension of bias.

Shedoes not elaborate on this argument. [106] From my review of Dr. Ross’ evidence, it appears that the trial judge questioned him in order to resolve ambiguities in hisevidence, or seek clarification of points in issue, like what exactly he was suggesting and recommending. For example, as a result of thetrial judge’s questioning of Dr. Ross, it became clear that Dr.

Ross was not suggesting or recommending that the child be returned to theMother under a supervision order. [107] I am satisfied that the trial judge did not “descend into the arena” or “enter the fray”: R v Oracz, 2011 ABCA 341, [2011] AJNo 1270 (QL) at para 7. His questioning of Dr. Ross did not give rise to a reasonable apprehension of bias. (iii) The Trial Judge’s Acceptance of Dr. Spencer’s Evidence [108] Finally, the Mother argues that the trial judge’s acceptance of Dr.

Spencer’s evidence gave rise to a reasonable apprehension ofbias. [109] I have already determined that the trial judge made no reviewable errors in accepting Dr. Spencer’s evidence, and relying on itto the extent that he did. I am also satisfied that the trial judge’s acceptance of Dr. Spender’s evidence did not give rise to a reasonableapprehension of bias. H. Did the trial judge impose conditions on the Mother’s post-PGO access that werenot based on proper evidence?

[110] The Mother argues that “the post PGO access preconditions were not based upon proper evidence.” She does not elaborate onher argument. [111] I have already concluded that there is no basis for me to interfere with the trial judge’s PGO. For many of the reasons I havealready articulated, it is also my conclusion that there is no basis for me to interfere with the trial judge’s post-PGO access order.

Thetrial judge’s decision to grant the PGO was based on ample evidence: • of the harm the Mother has caused the child, and the significant risks of harm that the Mother continues to pose to the child; • of the Mother’s lack of insight regarding her mental health issues and behaviours, and her refusal to cooperate with those whohave tried to help her; • of the Mother’s lack of progress in addressing the risks she poses to the child, including the risks resulting from her unresolvedmental health issues and her continuing relationship with the father; and • of the time it might take for the Mother to address her mental health issues with treatment.

The conditions the trial judge imposed on the Mother’s post-PGO access were based on the same evidence. [112] In DFR v Alberta (Director of Child Welfare), 2005 ABCA 344, [2005] AJ No 1326 (QL) at para 18, the Court of Appeal said: The Supreme Court of Canada has outlined the considerations that govern parental access to a child who is the subject of a PGO. Accessis the child’s right, not the parent’s. In this context, it is an exception rather than the rule.

Access decisions must be based on the bestinterests of the child, and should not be granted if it would have negative effects on the physical or psychological health of the child. ...:New Brunswick (Minister of Health and Community Services) v ML, (SCC), [1998] 2 SCR 534 at para 39. [113] The trial judge’s post-PGO access order accords with this guidance from the Supreme Court. The trial judge made the orderbecause he believed “it would be in the child’s best interests, particularly in her older years, to at some point have a healthy mother shemay wish to connect with”: TT at 810/36-39.

In other words, he made the post-PGO access order based on the best interests of the child.And, the trial judge was careful to ensure that the order he made would not have negative effects on the physical or psychological healthof the child. That is why he imposed the impugned conditions requiring, among other things, that the Mother seek treatment for hermental health issues. [114] The trial judge made no reviewable errors in granting the post-PGO access order. His order was based on ample evidence andaccorded with the relevant case law. IX.

Fresh Evidence [115] At the hearing of this appeal, a number of documents, amounting to fresh evidence, were received by the court pursuant to anagreement reached by counsel. The documents include a bundle of letters written by a family support worker, two psychiatrists, apsychologist and a probation officer (Exhibit A1); a bundle of Edmonton Police Service reports (Exhibit A2); and a restraining order(Exhibit A3).

None of the documents form part of an affidavit, and none of the information contained in the documents has been testedby cross-examination. [116] The first bundle of documents indicates that the Mother was found not guilty of uttering threats in January 2016; she had othercharges against her withdrawn in March 2016; she had four treatment sessions with a psychologist between May 27 and July 27, 2016;she had a single visit with a psychiatrist on March 23, 2016; she had a single visit with another psychiatrist on June 23, 2016; and she hasbeen enrolled in a family support program, and communicating with her family support worker, since September 11, 2015. [117] The second bundle of documents indicates that, following the PGO trial, the father’s behaviour continued to result in himhaving regular interactions with the police, often when he was heavily intoxicated (the latest being on March 31, 2016); the Mother’sbehaviour continued to result in her having regular interactions with the police, sometimes when she was intoxicated (the latest being onMay 4, 2016); and the father and the Mother continued to have violent, physical altercations with one another that required policeintervention or response (the latest being on March 31, 2016). [118] The restraining order was made by a judge of this Court on June 30, 2016.

It restrains the Mother from being near her mother,her mother’s residence and her mother’s place of employment; and from “harassing, molesting, watching, following, telephoning, orotherwise interfering with or contacting” her mother. The

preamble to the order notes that representations were made on behalf of theapplicant mother, the respondent Mother, the child and the Director. [119] I appreciate that the fresh evidence test (from R v Palmer, (SCC), [1980] 1 SCR 759) “is to be applied flexiblyin child welfare cases”: DFR at para 10, citing Catholic Children’s Aid Society of Metropolitan Toronto v CM, (SCC),[1994] 2 SCR 165 at para 20.

I also appreciate that these documents are before me pursuant to an agreement reached by counsel.Accordingly, notwithstanding that the documents consist of unsworn and untested testimony, I reviewed and considered them all on thisappeal. [120] At the end of the day, the parties’ fresh evidence has had no impact on the conclusions I have drawn. Although the first bundleof documents suggests the Mother has recently made some efforts to address her mental health issues, they do not indicate what progress,if any, the Mother has made since the PGO trial.

And, the second bundle of documents and the restraining order simply reinforce thetrial judge’s conclusions regarding the risks the child would face if she was returned to the Mother’s care, or if the Mother was givenunconditional access to her. Having considered the parties’ fresh evidence, I remain satisfied that there is no basis for me to interfere withthe trial judge’s adjournment decision, PGO decision or post-PGO access order.

X. Result [ 121 ] Following a complex seven-day trial involving the testimony of twenty-five witnesses, including experts, the trial judge granted a PGO appointing the Director as guardian of the child and a conditional post-PGO access order in favour of the Mother. His oral reasons show that he carefully considered the evidence and the relevant provisions of the Act , and that he maintained his focus on the best interests of the child. The trial judge committed no reviewable errors in his findings or analysis. Nor did he do anything to indicate that he was biased against the Mother.

Indeed, his granting of the post-PGO access order in the circumstances demonstrates that he was cautiously optimistic that the mother will address her mental health issues and re-connect with her daughter when she is well. At the end of the day, the trial judge said he believed “it would be in the child’s best interests ... to at some point have a healthy mother ... to connect with”: TT at 810/37-38. [ 122 ] The Mother’s appeal is dismissed. Heard on the 19 th day of August, 2016. Dated at the City of Edmonton, Alberta this 14 day of September, 2016. Eric F. Macklin J.C.Q.B.A.

Appearances: Baljindar Rattan for the Appellant Andrew Pearcey of Alberta Justice - Civil Litigation for the Respondent Larry MacInnes for the Child