SH v Alberta (Director of Child and Family Services), 2017 ABQB 364

Court of Queen’s Bench of Alberta Citation: SH v Alberta (Director of Child and Family Services), 2017 ABQB 364 Date: 20160605 Docket: FL10 06023 Registry: Red Deer In the Matter of DA, CA, AA, JA and KA Between: SH Appellant - and - Alberta (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 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 identification ban. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice Avril B. Inglis _______________________________________________________

Appeal from the Decision of The Honourable Judge Mitchell Dated on the 29 th day of April, 2016 ( Docket: FL10 06023) I Introduction [ 1 ] SH appeals a permanent guardianship order (PGO) made in Provincial Court regarding the youngest five of her eight children: D, 14 years old; C, 12 years old; A, 12 years old; J, 7 years old; and K, 6 years old.

The children’s father was not a party, nor was he present at any time during the trial or appeal proceedings. [ 2 ] SH seeks, among other remedies not provided for in the Child, Youth and Family Enhancement Act , RSA 2000, c C-12 ( CYFEA ), an order quashing the trial judge’s ruling. II Background [ 3 ] The original application for a PGO under the CYFEA was filed only in relation to the four youngest children because D was living with a family friend at the time. The initial order for apprehension for these four children was granted on March 19, 2014.

The initial custody order regarding C, A, J and K was granted on May 8, 2014. It was not appealed. A date was set for the PGO hearing. D became the subject of an apprehension order in August 2014. The initial custody order for D was granted on October 2, 2014. He then became the subject of a PGO application. [ 4 ] The court record reflects that both PGO applications were on the docket in August 2014, and were ordered to proceed in February 2015 as a joint trial for all five children, with or without counsel for the parties.

SH was present when that order was made. [ 5 ] The initial custody orders were not appealed. At no time prior to trial did SH, or her counsel once she was represented, complain about the two separate PGO applications proceeding as a joint trial. No application to sever was made. [ 6 ] Disclosure was provided to both SH and the children’s counsel at a pre-trial conference in February 2015.

Counsel for the Director submits that the disclosure was explained to SH at the time. [ 7 ] The PGO trial eventually required 15 days in court over the course of almost 10 months in 2015: • February 23, 2015 - SH appeared on her own behalf, and made no request for an adjournment to obtain counsel; • February 25, 2015; • February 26, 2015; • April 15, 2015; • May 5, 2015; • May 6, 2015; • June 11, 2015 - SH implicitly complained about not having counsel. The trial Judge dismissed her application for both an adjournment and mistrial, giving lengthy reasons.

In June 2015, disclosure was provided to the children’s counsel and to SH’s social worker - it was unknown if SH received it. • July 15, 2015 - SH appeared with information indicating she had been approved for Legal Aid. However, she also stated that she was ready to proceed without counsel on that day and began to do so. While she was being cross-examined, counsel interrupted the proceedings to indicate that his firm had been appointed by Legal Aid minutes before and was told a trial was in progress. The trial judge suggested that counsel meet immediately with SH.

The trial was adjourned to the afternoon; another counsel from the same firm appeared, and the trial judge granted an adjournment to September 2, 2015.

• September 2, 2015 - Counsel Ms. Simon appeared on behalf of SH and remained on record for the rest of the trial. She requested and was ultimately allowed to re-cross examine the Director’s witness Miss Clark and SH. Ms. Simon made no other requests. She confirmed on the record that SH had been offered further disclosure which she did not accept.

Further disclosure was requested by counsel and provided by the Director prior to the next court date. • September 16, 2015; • September 23, 2015; • September 29, 2015; • December 1, 2015 – SH was allowed to testify again, this time questioned by her counsel. • December 2, 2015 - SH testified again, and was cross-examined and re-examined. A psychological assessment report that had been previously misfiled was disclosed and this issue was addressed on the record. It was an eight year-old report. The trial judge did not allow SH’s counsel to adjourn to have a new assessment done, or to have the author testify.

Regardless, SH’s counsel asked that the report become an exhibit (Exhibit 48). • December 9, 2015 – SH testified again. [ 8 ] In total, twelve witnesses testified – six for each party. The PGO was granted on April 29, 2016. The four younger children had been in the Director’s custody for 719 days at that point, and D for 575 days.

At the time of this appeal hearing, they had been in the Director’s custody for 1,025 and 881 days respectively. [ 9 ] In granting the PGO, the trial judge applied s. 34(1) of the CYFEA and relied primarily on: the length of time the children had been in temporary guardianship, SH’s ability to parent, her record with Child and Family Services, and the best interests of the children. III Parties’ Positions A Appelant [ 10 ] SH represented herself before this Court on the appeal. She confirmed at the start of proceedings that she wished to proceed without counsel. The appeal was heard over the course of two days.

On the first day SH read from a prepared statement, which referred to her filed “memorandum of facts”. [ 11 ] In her memorandum, SH alleges the following: 1. The trial judge was overwhelmed by the volumes of records. 2. SH’s history with the Director may have created a bias. 3. That bias caused the trial judge to overlook burdens of proof and the rules of court. 4. There was general unfairness to her as a self-represented litigant. 5. The transcripts of the trial contain mistakes. 6. The trial had errors of evidence and behavior.

7. SH was ridiculed, accused of lying, and suffered religious discrimination. 8. SH was unfairly treated by counsel, badgered and threatened. 9. SH was forced to participate while medicated. 10. Evidence of SH’s cooperation with Child and Family Services was removed from the disclosure. 11. The trial judge’s reference on February 26, 2015 to “not wanting to give [SH] a reason to appeal” indicates that his decision was already made. 12.

The Director indicated that the court file contained eight volumes, which suggests that SH did not receive complete disclosure. [ 12 ] SH identifies the following complaints about portions of the trial, relying on the transcripts which total 1546 pages. I have not included her factual statements of evidence: a. February 23, 2015 at page 2: SH notes that this is the first point in the proceedings where she “attempted” to raise disclosure and evidence issues. She says that her objections were not properly considered, and the trial judge was “mad” when she sought clarification.

She indicates she was left feeling confused and scolded. This was her objection during the trial to the admission of documents provided by counsel for the Director: Okay, and another thing I would like to do is to make a motion to dismiss based on the fact that I was -- I did not receive the information pertaining to why my children were removed in the first place until February 4th, which is long past my one twenty one date, and upon reading it, it was not only illegally received, it was illegally followed through upon.

I’ve spoke to the police officers who have turned around and told me that they apologize and they are going to forever change the way they work with CPS, because what was reported to them as an investigation against me somehow was mistakenly represented as fact, and my children have been gone 11 months when the police officers had no intention of doing anything but investigating me, which is in their report. The trial judge’s ultimate response to her was this: Ma’am -- ma’am, I’m -- I’m not -- I’m not prepared to get into that at this point, okay.

I -- I’d like to hear the witnesses that are being called in this hearing, you had ample notice of this hearing, you’ve had ample opportunity to consider your position, and I appreciate your comments, but the binder of exhibits will become Exhibit 1 in the hearing, and, no, I’m denying your application to dismiss these proceedings. b. She notes that the Director explained during the proceedings on February 23, 2015 how documents were kept by the agency, and said that SH’s file was held in eight binders. The Director further stated that she had sworn an affidavit.

SH submits that this establishes that she had not received full disclosure, as she had not been provided with eight binders of material. It was not clarified whether she was alleging that the existence of an affidavit, the affidavit itself, or the information supporting the affidavit had not been disclosed. SH repeatedly implied that, to her, “full disclosure” equated to every document in the possession of Child and Family Services relating to her or her children. She suggested that disclosure to her of anything less than that was unfair. c.

SH refers to page 49 of that same day’s evidence, indicating the Director admitted to not providing reports that should have been part of the disclosure. I could not find such a comment at that location in the transcript. d. On that same day, the Director gave evidence about a family conference, but had not provided disclosure about the date of that conference. The Director referred to SH’s “long-standing addiction”, which SH indicates was not supported by an assessment later entered into evidence.

She notes other times where the evidence could have supported, but instead contradicted, the allegations of her drug or alcohol addictions. e. The Director’s evidence was that the first meeting to create a concurrent plan occurred well past the 42-day legislated time requirements. f. The Director gave evidence of “unsupported claims mistaken for truth” - specifically that SH told her addictions counsellor that she did not believe she had an addiction problem. g. The Director alleged that she was working with SH, but the evidence does not support that assertion. h.

The trial judge allowed a witness to speak about D’s feelings. At trial, SH objected that the counsellor’s comments about D’s wishes were speculative, and the trial judge called it the witness’ “professional opinion” and admitted the evidence. i. SH submits that the trial judge’s reference to “not wanting to give SH grounds for appeal” showed a preconceived and biased

opinion that she was “guilty”. j. On April 15, 2015, SH was forced to continue representing herself despite her statements about the effects of medication. She provided a physician’s note indicating that her neuralgia pain can be aggravated by stress, and that the medication prescribed may cause drowsiness. Counsel for the Director and the children both objected to further delays, advancing the interests of a fair trial to all parties. The trial judge directed that SH would not be required to testify that day, but other witnesses called to testify would be heard.

SH argues that she was not allowed to speak, despite being heard and the letter from her doctor being presented and considered. She indicates that she was compromised by her medical state while cross-examining the witness. She argues that this denied her a right to a fair trial and the human right to be healthy. k. SH further argues that she had not known that her decision to represent herself was going to aggravate her condition, and as such it was unfair for the trial judge to deny her an adjournment on the basis that she had initially decided to represent herself. l.

SH complained on May 6, 2015 that the trial judge had previously heard minor prosecutions of SH and that he himself had indicated he should not hear repeated allegations against one person. The trial judge indicated when this was raised that he had no recollection of those provincial prosecutions and indicated that he could disabuse his mind of such things if they had in fact occurred. m. SH says that the trial judge should not have heard the separate PGO applications jointly and doing so breached his obligation to recuse himself. n.

SH submits that the claim that she was unwilling to work with the Department was unsupported by “physical evidence” and that her own evidence was minimized or ignored. [ 13 ] SH also argues that she repeatedly asked for representation, or that it was obvious that she needed representation.

She did not identify any of these circumstances in the transcript, and I found few save for comments related to the fact that she herself was not a lawyer and at times did not know what to do. [ 14 ] SH also raises concerns, without specific reference to the transcript, regarding instances of counsel “badgering witnesses”; the reading of a letter asking that her case be dismissed; being threatened with contempt; the judge refusing SH the opportunity to retain counsel; and her own cross-examination.

Ultimately, she argues that she was treated poorly and denied her rights. [ 15 ] She asserts that the trial judge exhibited religious discrimination. She argues that it was implied that she is a liar, and that she was called a narcissist without an expert opinion to support such a finding. [ 16 ] SH submits that the personality assessment provided as evidence was outdated.

However, she further notes that the Department should have taken more steps to support her, based on the diagnosis in that assessment. [ 17 ] SH objected to the admission of her own Facebook posts where she discussed the proceedings, contrary to an order of the trial judge. SH argues that evidence obtained from social media is banned by the Supreme Court of Canada and cannot be used in a court proceeding as it was here. SH further asserts that the publication ban regarding the hearing violated her right to free speech. [ 18 ] SH argues that the transcript of the trial contains multiple errors.

This Court allowed her an adjournment and directed the clerk of the court to make arrangements with SH to attend the courthouse in order to listen to the recordings. She was directed to review her transcripts to note where she thought there were errors, and to be prepared to identify the portions of the recording which troubled her. She made those arrangements, attended the courthouse, and was able to identify the following passages that were then played during the appeal hearing: a. SH was not allowed to ask a witness about the 42-day legislated deadline for a concurrent plan.

The trial judge ruled that this was an issue of law and that he would decide the issues of law. SH argued that her cross-examination about this issue was curtailed. At one point in the recording, a scoff or a cough can be heard from the trial judge as he ruled that SH’s questions about her own reports of abuse by her children’s foster parents were not relevant. b. SH played a recording of the trial judge admonishing her, as an example of how she had been treated and had become afraid to make submissions. c.

SH alleged her description of her illness was not addressed appropriately when the matter was adjourned on February 25, 2015. d. SH played a recorded segment from early in the proceedings on May 5, 2015. She indicated that the trial judge “got really mad” at her and this caused her to misspeak. e. SH was able to play for this Court a segment from May 5, 2015, where she alleges that the trial judge laughed at her. She said this happened repeatedly, but this was the only example she provided of the trial judge laughing. f.

SH identified many times during her re-cross-examination (after counsel began representing her) that she spoke about evidence that was missing from the disclosure from the Department that she alleges existed and should have been provided to her. She refers to doctor’s notes, reports by her to the Department and other details that she alleged were missing or altered. SH complained that she did not know how to obtain the proper disclosure, and alleged that her counsel did not appear to know how to do this either.

[ 19 ] SH had initially recalled that when her belief as a Wiccan was mentioned by counsel, the trial judge laughed at her. After listening to the recordings, she admitted that this was not the case and she retracted that allegation. [ 20 ] I have not included reference to, nor have I considered, assertions of fact in SH’s written materials. No application was made to adduce fresh evidence on the appeal. B Respondent [ 21 ] Respondent counsel for the children on the appeal was also counsel for the children at trial. She joins with the counsel for the Director in seeking that the appeal be dismissed.

Both submit that the trial judge made no material error and that he considered all of the relevant factors. They further submit that the trial judge’s assessment of SH as “self-serving” (among other criticisms) is reinforced by SH’s appeal materials, noting that her memorandum focuses on perceived wrongs against her personally, and contains no arguments about her children and their best interests.

Counsel for the children made arguments on the following issues similar to those of the Director. 1 Disclosure [ 22 ] The Director submits that SH misconstrues the meaning of the Department’s description of its file as consisting of eight volumes. This misunderstanding led her to the false conclusion that her three binders of disclosure were clearly not complete. Counsel explains that the Department keeps separate binders for each child in the family, and there is much duplication in each of the binders.

Counsel indicates that not all of the documents held by the Department would have been disclosed, for example, administrative or privileged documents. Further, no documents relating specifically to SH’s three oldest children would have been provided, as they were not subjects of these PGO applications. Therefore, the mere difference between the Department’s “eight volumes” and SH’s “three binders” does not establish a lack of disclosure. [ 23 ] As well, the Director submits that the language of s. 126 of the CYFEA and case law permit the Director some discretion regarding disclosure.

The intent of the CYFEA is to protect privacy while at the same time allowing the Director to share information when appropriate. [ 24 ] The Director submits that SH had sufficient opportunities to request further disclosure, and her counsel did so, receiving timely and responsive disclosure. Counsel also received copies of all of the disclosure initially provided to SH, and no adjournments were sought in response to that disclosure.

The Director argues that any disclosure deficiencies were rectified before the end of the proceedings. [ 25 ] The Director further notes that SH argued that disclosure had not been provided prior to the initial custody hearing, however the appeal period with respect to that decision was long past. [ 26 ] The Director argues that many other points in SH’s argument regarding disclosure issues are irrelevant. For example, an RCMP officer testified about dealings with SH where she felt SH was intoxicated while caring for her children.

SH indicated that an assessment report that was not provided to her would have changed that officer’s evidence. The Director noted that the officer’s evidence did not refer to, or purport to be based on, that report. [ 27 ] Counsel for the children notes that SH complained that a parenting assessment was not disclosed, and then argued that the 2007 assessment required updating. Counsel notes that although SH appears to argue that the late disclosure of the dated assessment prejudiced her, the assessment was not favorable to SH and its admission into evidence did not help her case.

Further, three assessments of SH had already been done. The Director testified at trial that this was more than she had otherwise seen for a single file. SH has not established why a fourth assessment was required or how it would have benefitted her case. 2 Trial Record [ 28 ] The Director argues that alleged errors in the transcripts - most of which were notably not established by SH - would not provide a basis on which to overturn a decision on appeal.

Counsel argues that the trial judge based his decision on the viva voce evidence, not on the transcripts. 3 Procedural Fairness [ 29 ] The Director notes that it was practical and reasonable to hear the two applications together. The evidence called to support both applications was essentially the same, leading to the efficient processing of justice. The Director argues that no resulting prejudice has been established. [ 30 ] The Director further submits that SH was provided every opportunity to present her evidence, and any deficiencies were corrected once she was represented by counsel.

SH was allowed a great deal of time to give evidence on her own behalf. In fact, 10 of the 15 days of evidence included SH’s own testimony. [ 31 ] The Director further notes that the trial was adjourned to allow SH to seek medical treatment. She was directed to bring evidence regarding her health status to court on the following dates. She did provide many documents, however they did not indicate a specific diagnosis (SH claimed a diagnosis of trigeminal neuralgia), nor evidence that the medication she was prescribed would affect her ability to represent herself.

Further, she confirmed that she was not using medication during the days she gave evidence in May 2015. Subsequently, the trial judge considered at length the application for another adjournment for health reasons on June 11, 2015, and the Director submits that his decision to deny that request was well founded. Other accommodations were made available to SH as she identified her needs.

[ 32 ] The Director notes that SH now argues that she was not capable of representing herself. However, she claimed at the start of the trial that she had the right to represent herself. She failed to obtain counsel until months after the start of the trial, and then her lawyer was given a great deal of flexibility to address evidence that had already been called. At no time did SH’s counsel seek a direction for a mistrial.

Counsel was allowed time to review disclosure and then to re-cross-examine the primary witness, Miss Clark. [ 33 ] The children’s counsel, in addition to making many of the same observations and arguments as the Director’s counsel, identifies many aspects of SH’s conduct during the proceedings that affected the trial process.

She reiterates that SH was cautioned repeatedly by social workers and at Judicial Dispute Resolution meetings that she should retain counsel and yet she remained insistent that she would represent herself. [ 34 ] Further, SH made no efforts to obtain counsel until the June 11, 2015 trial date, when she indicated that she was incompetent and alleged wrongdoing by opposing counsel. SH refused to be sworn for cross-examination, refused to answer questions and was ultimately held in contempt.

When the trial was then adjourned for another month, SH was able to obtain counsel through Legal Aid and was represented thereafter. Counsel for the children notes that SH testified repeatedly, but that she was represented by counsel for the majority of that evidence. [ 35 ] Counsel for the children notes that between February 26 and April 15, 2015, SH alleged medical problems, but she failed to provide sufficient medical evidence to show that she was compromised or incompetent due to these assertions.

Counsel argues that the trial judge gave appropriate consideration to SH’s allegations and made a fair decision to continue the trial. [ 36 ] Counsel for the children further notes that the trial was initially scheduled for 5 days in February 2015. It was adjourned and continued repeatedly throughout that year, ultimately entailing 15 days of evidence over a span of 11 months. The majority of that time, SH was represented by counsel. 4 Judicial Bias [ 37 ] The Director submits that SH’s assertion that the trial judge was biased against her is not borne out by the evidence.

The Director argues that neither the trial judge’s expressed desire “not [to give] her a ground of appeal”, nor the fact that he had heard evidence regarding a regulatory offence some months earlier provides sufficient grounds to conclude that he was biased. [ 38 ] The Director quotes from Nazarewycz v Dool , 2009 ABCA 70 , [2009] AJ No 189: 64 The apprehension of bias must be reasonable and held by reasonable and informed persons....

An 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. Accordingly, the threshold for a finding of real or perceived bias is high. [ 39 ] The Director argues that the statements identified by SH do not meet that high threshold.

In fact, the transcript reveals many instances of the trial judge making decisions based on trial fairness to the benefit of SH. [ 40 ] In addition to Nazarewycz , counsel for the children cites JSG v Alberta (Child Youth and Family Enhancement Act Director) , 2016 ABQB 510 , [2016] AJ No 935, arguing that neither the transcript nor the decision raises any apprehension of bias which would meet the threshold. SH complains that the trial judge was overwhelmed with the volume of the records kept by Child and Family Services in relation to her. However, she does not support that assertion with the record itself.

Further, SH argues that the trial judge scolded her and was “mad” at her repeatedly. However, counsel for the children observed at trial, and the transcripts confirm, that the trial judge showed a great deal of patience toward SH despite her repeated poor behavior throughout the proceedings. She was not scolded as alleged, and in fact the trial judge made considerable efforts to accommodate her and to ensure a fair trial.

Counsel submits that an informed person could not reasonably conclude that the trial judge was biased, or showed any bias, toward the appellant. [ 41 ] Counsel for the children took specific note of SH’s argument that the trial judge expressed bias against her. SH was vehement on the first day of this appeal in her assertion that the trial judge repeatedly ridiculed her, in particular that he exhibited a discriminatory attitude toward her religion when it was indicated in court that SH is a practicing Wiccan.

However, counsel submits that SH’s assertion is not borne out by the audio recording of that part of the trial. This was admitted by SH once she reviewed the recordings.

IV Standard of Review [ 42 ] SH did not refer to the standard of review in her written materials. [ 43 ] The Director submits that a custody and access decision is inherently an exercise in discretion and therefore a PGO is entitled to considerable deference on appeal, citing Van de Perre v Edwards , 2001 SCC 60 , [2001] 2 SCR 1014: 13 ...an appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts. Custody and access decisions are inherently exercises in discretion.

Case-by-case consideration of the unique circumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child. [ 44 ] Respondent counsel for the children agrees with the Director’s counsel regarding the standard of review. [ 45 ] In EG v Alberta (Child and Family Services) , 2014 ABCA 396 , 53 RFL (7th) 269, the Court of Appeal discussed the standard of review on appeal of a PGO: 15 ...

Only where the trial judge has acted on a wrong principle or disregarded material evidence, or where the decision is otherwise clearly wrong, will an appellate court interfere: MT v Alberta (Director of Child Welfare) , 2005 ABCA 125 , at para 24 , 363 AR 306. In

order to interfere with the trial judge’s findings of fact, or inferences drawn from facts there must be palpable and overriding error: RW v Alberta (Director of Child Welfare) , 2011 ABCA 139 , at para 14 , 502 AR 379. [ 46 ] In MT , the alleged errors were all errors of law and therefore the applicable standard of review was held to be correctness. [ 47 ] In AR v Alberta ( Child, Youth and Family Enhancement Act , Director) , 2014 ABCA 148 , [2014] AJ No 442 at para 14 , the Court of Appeal held as a general rule that a trial judge’s decision on an application to adjourn is highly discretionary and entails consideration of the facts and circumstances, including an applicant’s reason for seeking an adjournment.

That discretion may be reviewed on appeal if it is based on an incorrect legal principle, or if it affects procedural fairness. In both cases, the standard of review is, effectively, correctness. [ 48 ] I conclude that SH’s allegations relating to lack of disclosure, other denials of procedural fairness relating to SH’s medical issues and lack of legal representation, and judicial bias all fall within the general realm of procedural fairness.

Such matters are reviewable on a standard akin to correctness. [ 49 ] Regarding the decision itself, evidentiary issues involving wrong principle, failure to regard material evidence, or misapprehension of material evidence are reviewable on a correctness standard. However, the Court will review the trial judge’s balancing of the best interests of the children and his inferences drawn from facts for palpable and overriding error.

V Analysis [ 50 ] Pursuant to s. 117(2) of the CYFEA , the Court on this appeal may confirm the PGO, revoke or vary it, or make any order the Provincial Court could have made in the hearing before it. [ 51 ] SH raises issues generally relating to procedural fairness and the soundness of the decision. A Procedural fairness [ 52 ] The proceedings are subject to a review on a standard akin to correctness in relation to issues of procedural fairness. 1 Disclosure [ 53 ] SH adamantly argued that she did not receive all of the records that the Department held regarding her family.

She noted that there was reference to “eight volumes” of material, whereas she had received only three binders of disclosure. [ 54 ] The Director explained that the Department keeps separate binders for each child in the family, and there is much duplication in each of the binders. I found no evidence to this effect in a review of the transcripts.

However, even without counsel’s explanation, it is reasonable to infer that there would be duplication within the department’s files, and fair disclosure would not require that every individual document would have to be copied for the appellant. [ 55 ] Further, s. 126 of the CYFEA addresses confidentiality and permits the Director to disclose personal information: 126(1) The Minister and any person employed or assisting in the administration of this Act ... may disclose ... personal information that comes to the Minister’s or person’s or agency’s attention under this Act only in accordance with the Freedom of Information and Protection of Privacy Act , in proceedings under this Act, in accordance with

Part 2, Division 2 or this Part or as follows: ...(

b) to the guardian of the child to whom the information relates or the guardian’s lawyer... [ 56 ] The Court in Alberta ( Child, Youth and Family Enhancement Act , Director) v PM , 2005 ABQB 714 , 387 AR 378 discussed this provision: 22 Although Section 126(1) is consistent with the principle that the guardian is entitled to receive some disclosure from the Director, the provision is unclear on what basis that disclosure may be given or withheld.

Although guardians are expressly included in the disclosure provisions under Section 126(1), the language of those provisions suggest some level of discretion on the part of the Director. The language “shall not disclose or communicate that information except.... as follows” appears to mean that the Director may disclose under the circumstances listed in the provision. It is permissive, not imperative. [ 57 ]

Section 126.11 provides a process for obtaining disclosure of a record or part of a record that contains information held under the CYFEA . It provides in part: 126.11(7) Any one or more of the following assertions are not sufficient on their own to establish that the record or part of the record is relevant, material and likely necessary to advance the position of the party seeking disclosure: (

a) that the record exists; (

b) that the record relates to intervention services the family has received or is receiving; (

c) that the record may relate to the credibility of any witness. [ 58 ] Subsection 126.11(8) sets out a number of factors the court may consider in deciding whether to have the record sought produced to the court, including likely probative value, whether the record has been disclosed in another form, the rights of the parties to

a fair hearing, the need to not unduly delay matters affecting a child, the size of the requested record or part of the record, and any other relevant factor. Under s-s. (9), on production to the court it must consider, in addition to the factors set out in s-s. (8), whether the information is relevant, material and likely necessary to advance the applicant’s position. [ 59 ] An application under s. 126.11 may be made by “a party to a civil matter” under the CYFEA , and may be brought in both the Provincial Court and the Court of Queen’s Bench.

The trial record reflects that SH, particularly once she had counsel, made several requests during the trial for additional disclosure and those specific requests resulted in the materials sought being provided to her. The record is also clear that SH believed there were records that should have or may have existed that she did not receive from the Department. [ 60 ] It was open to SH and her counsel to apply to the Provincial Court for further disclosure.

It was also open to SH to apply to this Court for further disclosure in order for the Court to be in a position to determine whether relevant and material documentation was not disclosed to her. [ 61 ] There is no evidence before the Court to suggest that the documents which SH believes were not disclosed do, in fact, exist, aside possibly from documents in files relating to her other children.

While SH may have not received in disclosure a copy of every piece of paper held by the Department in relation to her family, there is nothing before this Court to support a finding that if anything was withheld by the Director, it was probative, relevant, material and likely necessary to advance SH’s position. [ 62 ] With respect to the parenting assessment, the Director notes that counsel for SH could have subpoenaed and examined Dr. Lucardie, the author of the assessment. Counsel did not do so.

I also note that it is clear in the transcript that SH was aware of this one particular assessment as she attested to its existence more than once. However, it was not requested to be disclosed until December 2015. [ 63 ] SH argued that she could have changed an RCMP officer’s mind about her belief that SH was intoxicated at a time when she dealt with her if SH had been able to present a particular assessment to her. That assessment was disclosed late. [ 64 ] Constable Ethier testified about an event that occurred on August 17, 2014, when she attended a parked vehicle and asked questions of the occupants.

SH was identified as the driver. Constable Ethier stated that SH’s relative state of undress, behavior, and symptoms indicated to Constable Ethier that SH was intoxicated by alcohol. It was not explained how a much earlier assessment of SH would have affected the evidence offered by Cst. Ethier based on her observations at the time of this incident. [ 65 ] I note that once SH was represented, her counsel was granted leave to recall and re-examine witnesses. This was clearly an effort on the part of the trial judge to ensure procedural fairness. Constable Ethier was not recalled.

In any event, I cannot find that the evidence would have been material given the very narrow scope of Constable Ethier’s evidence. [ 66 ] Finally, there is no evidence that disclosure was unfairly edited. In fact, the trial judge heard substantial evidence about SH’s cooperation with the Department - in addition to the evidence of her lack of cooperation. 2 Other Alleged Denials of Fairness [ 67 ] SH was clear that she felt the trial proceeded unfairly. Overall, SH’s health problems were accommodated.

I find that the Court was not unfair or incorrect in refusing her adjournment when she provided limited evidence about the possible effects of medication she had been prescribed. SH had been granted a great deal of leeway, and the protracted trial was time-sensitive regarding the children’s needs to have a settled decision.

Given her conduct up to the point of the adjournment application, I find that the denial was well-reasoned and appropriate. [ 68 ] I note that some of the instances of “unfairness” that she identified included situations where some alternatives were considered that she did not like, for example, proceeding without her when she failed to attend after she had previously been hospitalized. Often, the trial judge did not choose the undesirable alternatives, yet SH appeared resentful that such “unfair” procedures were even considered. [ 69 ] I find no merit to SH’s allegations regarding her lack of representation.

It is clear that she initially wished to proceed without counsel. When she did retain counsel, the trial judge allowed witnesses to be recalled and further disclosure was requested and obtained. [ 70 ] Having reviewed the record and considered SH’s arguments, I find that the record exposes no wrongdoing by counsel or the trial judge. The trial judge properly applied the rules of court. I could identify no elements of unfairness.

I find, in fact, that both opposing counsel and the trial judge were exceedingly accommodating to SH, while also recognizing that the needs of the children were best served by moving the trial forward. The trial was adjourned and re-scheduled repeatedly to accommodate SH’s emotional needs, physical health and ultimately her extremely late efforts to obtain counsel. The trial judge was obliged to consider both SH’s rights and the best interests of the children involved.

I find that he did so. 3 Judicial Bias [ 71 ] An independent, impartial judiciary is a fundamental aspect of procedural fairness. [ 72 ] SH argued that the audio recording reflects mockery and disrespectful treatment by the trial judge. With all due respect to SH, I do not agree with her. I understand how difficult this trial must have been for her. She appeared to me during the appeal to be an intelligent, yet highly emotional, person.

I conclude that her subjective opinion of the experience was deeply affected by her sensitized response to the proceedings. [ 73 ] For example, SH argued that at one point her cross-examination of a witness was curtailed and the trial judge scoffed at her. I did not find that to be the case. I understood the trial judge to be directing her and advising her about cross-examination. He advised her simply that she was making argument rather than asking questions. She may have not liked being corrected with respect to legal

procedure, but that is what the trial judge was doing and it was an appropriate direction made to her. [ 74 ] SH played a recording of an interaction where she says the trial judge admonished her. I did not note any worrisome tone to the trial judge’s voice. Counsel argued that he did not speak to SH any more harshly than he might have to counsel. I agree. This is not to say that SH did not have an emotional reaction or dislike the exchange. It simply did not expose any unfair treatment or bias.

Once again, the trial judge was simply directing SH regarding procedure. [ 75 ] SH argued that when the matter was adjourned on February 25, 2015, she felt that her medical condition was not appropriately considered. However, I note that the trial judge spoke to her in a generous and caring way, and she herself agreed to the new proposed date. I find no mistreatment or bias. [ 76 ] SH complained that the trial judge called her a “narcissist”. However, the trial judge simply indicated that her own testimony and acceptance of having such a disorder “lent great credence to such a diagnosis”.

The trial judge did not find as a fact that she was a narcissist. [ 77 ] SH argued that the trial judge laughed at her. She initially recalled the trial judge laughing when it was mentioned in court that SH is (or might be) a Wiccan. However, when the audio was played it appeared that was not the case. She did find a portion of audio where the trial judge laughed when SH reported to him that a young lawyer had told her a certain judge was simply waiting for his retirement. The trial judge and counsel laughed.

The comment was about a judge who was likely known to the trial judge and counsel, and it would be amusing to them that such a thing would be said on the court record. This was a situation where SH may have felt that the trial judge and counsel laughed at her, when in fact she simply had unknowingly said something amusing to the other parties who were present. [ 78 ] The trial judge’s reference to “not wanting to give a reason for appeal” does not reveal that he had already made his decision.

On the contrary, it indicates on its face that the trial judge was focused on trial fairness throughout. [ 79 ] In sum, I found that none of the recordings and specific transcript excerpts that were identified by SH exposed mistreatment or mockery by the court.

As I have already indicated, I found that both the audio and text record show that a great deal of effort was made to treat SH with respect and to ensure that the trial was fair to her. [ 80 ] Further, none of the recordings or transcript excerpts, taken together with any of the other perceived deficiencies in the trial, suggest a reasonable apprehension or any actual bias on the part of the trial judge. [ 81 ] I also find that SH was not treated unfairly or disrespectfully by counsel.

B Review of the Decision [ 82 ] The Director argued that the alleged errors in the transcripts - most of which were notably not established by SH - would not provide a basis on which to overturn a decision on appeal. Counsel argued that the trial judge based his decision on the viva voce evidence, not on the transcripts. [ 83 ] This is incorrect, as the trial judge explicitly noted in his decision that he had relied on the transcripts. Any human error that might occur between the hearing and transcription could be an issue if it related to the trial judge’s reasons for decision.

Errors in a transcript may well affect appellate review and must be considered carefully when alleged. [ 84 ] SH was provided the opportunity to identify the alleged errors and to compare the transcript to the audio recording. She could not find any actual errors, save one. A police officer speaking from the gallery was wrongly identified in the transcript. Counsel for both the Director and the children agreed that this was an error in the transcript. However, the identity of that speaker does not relate in any way to a ground of appeal.

I find that the error could not affect the trial judge’s decision. [ 85 ] In conclusion, I agree with the Director and counsel for the children that any errors in the trial transcript are extremely limited. No errors were identified in the trial transcript that could reasonably have affected the trial judge’s decision. [ 86 ] I have reviewed the transcript and the trial judge’s decisions throughout the course of the trial as identified by SH and, as I have noted above, find no basis for the appeal in the transcript.

All factual findings he made were borne out by the evidence, including findings of credibility. [ 87 ] I have reviewed the trial judge’s final decision and find no error of law.

He properly instructed himself and applied the burden of proof, acknowledging that the onus was on the applicant Director, and noting it to be “a significant burden.” He indicated that in this particular case the “magnitude of the occasion” was enormous, and that the welfare of these five children was the paramount consideration of the court. [ 88 ] He correctly stated the three criteria set out in s. 34(1) of the CYFEA and applied the law to the facts before him, concluding that: the children were in need of intervention at the time of the application; the survival, security or development of the children could not be adequately protected by returning them to SH; nor could it be anticipated that the children could or should not be returned to the custody of the child’s guardian within a reasonable time. [ 89 ] There is nothing on the record or in the trial judge’s decision which would suggest he was overwhelmed by the volume of records before the court. [ 90 ] The trial judge made significant findings regarding SH’s lack of credibility, which were well supported by the transcript of her evidence and her conduct during the proceedings when she was not giving evidence.

[ 91 ] He considered the evidence of the two caseworkers who described SH and her children’s extremely long involvement with the Department. He noted that their evidence credibly described “a tragic litany of neglectful, abusive, and highly inconsistent parenting”. He noted and accepted their description of SH’s extremely poor presentation to the Department and lack of insight into the problems her family faced.

He found that to be consistent with her presentation and sentiments expressed in court [ 92 ] Further, he found that the evidence supported that the placement with their current foster mothers was extremely positive for the children. This is all well based in the evidence. [ 93 ] He noted that his “abiding sense” was that the appellant “consistently presented to the caseworkers as obstinate, misguided, sometimes hysterical, and most often accusatory in the extreme”.

He further noted that SH “is capable of temporary improvements while being closely monitored but, once outside scrutiny is removed, she falls back into chronic deteriorating behaviors”. [ 94 ] As a witness, the trial judge found SH to be evasive, inconsistent, notably unresponsive and argumentative. He found that she tended to blame others and would not accept fault for anything of consequence.

The trial judge found there was no credit to be given to her allegations of lies, incorrect report and a conspiracy against her by the Department. [ 95 ] The trial judge found that SH was evasive, confusing, self-serving and ultimately had diminished credibility. I defer to the trial judge and note that these observations are well supported by the evidence at trial. [ 96 ] Finally, the trial judge found that SH’s “care and custody of the children has been characterized by long-term substance abuse, ongoing chronic neglect and woefully inadequate supervision.

Other less intrusive measures have been repeatedly taken in the past, but have failed to correct the plethora of parental defects proven in this trial”. [ 97 ] I find no palpable and overriding error in the trial judge’s inferences drawn from the facts established in the evidence, nor in his balancing of the best interests of the children. He did not disregard material evidence, or act on any wrong principle in his application of the CYFEA . He carefully considered all of the evidence before the court, and made appropriate findings of fact.

The exercise of his discretion in this matter is owed deference and this court shall not interfere. VI Conclusion [ 98 ] The trial decision is confirmed. Heard on the 3 rd and 24 th days of March, 2017. Dated at the City of Red Deer, Alberta this 5th day of June, 2017. Avril B. Inglis J.C.Q.B.A. Appearances: SH on her own behalf Gina Toni Altalaw LLP for the Respondent Sharon Crooks Rowanoak Law Office LLP

for the Children