NEW (Re), 2017 ABQB 565

Court of Queen’s Bench of Alberta Citation: NEW (Re), 2017 ABQB 565 Date: 20170920 Docket: 50261, 50262 Registry: Edmonton In the Matter of the Child, Youth and Family Enhancement Act And In the Matter of the Application by DAW and NEW for an Adoption Order Regarding the Children MMM and SDM And in the matter of an application by DMM to Stay the application for adoption Restriction on Publication Publication Permitted – See the Child, Youth and Family Enhancement Act,

section 74.1. By Court Order, this electronic judgment may be published on the court website and distributed to libraries and publishers and may be published by them. 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 ban so that it may be published. FILE SEALED: The Court's adoption file in this matter, including the official signed judgment, is sealed pursuant to the Child, Youth and Family Enhancement Act,

section 74.1. _______________________________________________________ Judgment of the Honourable Madam Justice B.A. Browne _______________________________________________________ I Introduction [ 1 ] DAW and NEW apply for adoption of MMM (12 years old) and SDM (10 years old) under s.62 of the Child, Youth and

Family Enhancement Act, SA 2000, c C-12 (CYFEA). [2] The children’s biological mother, DMM, applies for disclosure of the adoption file and a stay of the adoption proceedingspending an application under s. 35.1 of the CYFEA. II Late Filing of DMM’s September 5, 2017 Affidavit [3] This matter has proceeded through the child protection system and a Permanent Guardianship Order (PGO) was made onJune 14, 2016, placing the two children in the permanent care of the Department, thereby terminating the guardianship of the mother.

Anadoption petition and supporting documents were placed before me from the proposed adoptive parents DAW and NEW. DMM wasserved with notice that an adoption was imminent. [4] DMM filed an Affidavit on September 5, 2017, well past the deadline originally set for the filing of documents. All of theother parties objected to that Affidavit.

I have directed the clerk to file the Affidavit and I intend to read and refer to it in my decision.This matter was brought on quickly for a trial in the best interests of the children and it is important that I know as much as possible inmaking the determination required in this application. Therefore, I have admitted that Affidavit. III DMM’s Notice and Standing [5] The CYFEA has no provision regarding notice to the biological parents when there is a pending adoption. There are anumber of cases dealing with the issue of such notice.

In both PK v JM, 1990 ABCA 192, 107 AR 145 and Re H, 1992 ABCA 98, 127AR 218, the Alberta Court of Appeal held that a biological parent who has maintained a relationship or contact with his or her child afterthe child became a ward of the Crown is entitled to receive notice of the child’s impending adoption. IV Application for Disclosure of Adoption Package [6] All documents possessed by the Court that relate to an adoption are sealed and are not available for inspection by any personexcept on order of the Court or with the consent in writing of the Minister: s. 74.1 of the CYFEA.

DMM has applied for disclosure of theadoption application file. I indicated at the hearing of this matter on September 7, 2017, that DMM is not entitled to view the adoptionapplication file and that I would provide reasons in due course. [7] DMM argues that she was served with a Notice of Adoption/Notice of Objection to the adoption and without the file she hasno ability to comment on anything regarding the adoption. She argues that procedural fairness and the right to full answer and defencerequire her to be given a copy of the adoption file.

She submits that privacy and confidentiality can be dealt with in a similar fashion toPractice Note 7 where a copy of the file is provided to the lawyer and the parent is allowed to read it, but is not given a copy. She notesthat regardless of her status at law, she is the biological mother of these children.

If she does not receive the adoption file, the serving ofthe Notice is meaningless as she is unable to oppose the adoption. [8] The Director observes that the PGO terminated DMM’s status as a guardian of the children, and that there is no requirementin the CYFEA to provide notice of an adoption to a biological parent. However, notice is provided in those cases where there is ongoingcontact between the biological parent and the adoptive parent. The Court may then determine whether that access should continue if theadoption is granted.

The Director submits that the only issue with respect to which DMM has standing, and the only reason she receivednotice of the adoption is because of her access to the children. DMM’s right to access was reserved in the collateral order granted at thesame time as the PGO. [9] In Re MZF, 2006 ABQB 99, [2006] AJ No 128, Acton J. discussed the rarely exercised power to impose conditions on anadoption in relation to a biological parent under the Court’s parens patriae jurisdiction.

She cited Adoption No 46534 (re), 2002 ABQB375 , [2002] AJ No 499, 310 AR 105 (QB) in which Slatter J. (as he then was) held that the Court will rarely impose conditionsbeyond those to which the adoptive parents have consented. In that case, to which the former legislation applied, Slatter J. granted acollateral order directing provision of an annual progress narrative and one photograph which would remain on deposit with the post-adoption registry.

Acton J. in MZF held that the same principles applied under the CYFEA and declined to grant post-adoption access.Belzil J. in KM v Alberta (CYFEA), 2013 ABQB 620, [2013] AJ No 1163 at para 133-34 relied on Slatter J.’s decision for theproposition that there is no jurisdiction to make an adoption order subject to conditions or restrictions, but post-adoption access under theparens patriae jurisdiction of the Court may be invoked in exceptional circumstances.

Belzil J. found no such exceptional circumstancesin the case before him, and declined to grant post-adoption access. [10] The adoption application contains confidential information – regarding finances, family history, emotional health, physicalhealth, friends, relatives, details of home life, circumstances of potential adoptive parents’ children, and personal circumstances of theadoptive parents. This information is necessarily thorough, detailed, and complete. [11]

Section 74.1 of the CYFEA mandates that no documents kept by the Court relating to an adoption will be available forinspection by anyone except on order of the Court. None of the information in the file is relevant or material to any potential collateralcondition or order which DMM might hope to obtain in this context. [12] The PGO terminated DMM’s rights to guardianship of the children. She therefore has limited standing in the adoption processonly as it relates to potential collateral conditions or orders under the Court’s parens patriae jurisdiction, which is exercised in onlyexceptional circumstances.

There is no good reason to breach the privacy/confidential interests of the adoptive family by providingDMM access to the adoption file. The notice served on DMM does not permit her to receive or view the entire adoption file.

V Voice of the Child [ 13 ] Ms. JoAnne Quinn was retained as counsel for the children, MMM and SDM. [ 14 ] Counsel was appointed on an expedited basis because of the short adjournment and the fact that Legal Aid and the Child’s Advocate would not represent these children in this hearing. Ms. Quinn spoke to the children on August 31, 2017. She spoke with MMM for one hour and with SDM for 45 minutes. Ms. Quinn had no hesitation whatsoever in stating that the children were capable of expressing their wishes clearly and unequivocally. In spite of the challenges that young SDM has had at school, Ms.

Quinn was satisfied that SDM had the capacity to form an opinion regarding post-adoption access and the adoption. We were advised by Ms. Quinn that MMM consents to the adoption order and does not want any access with her mother at this time. SDM is anxious for the adoption to be concluded but she would like to continue to see her mother once or more every month. VI Stay of Adoption [ 15 ] DMM asks that the processing of the adoption be stayed at this stage so that she can bring an application to terminate the PGO pursuant to s. 35.1 of the CYFEA .

DMM takes the position that the Director rushed the adoption so that she would not be able to request a s. 35.1 review. DMM argues that the deadline for her exercise of the s. 35.1 right to request review of the PGO is approaching – October 19, 2017 – and that the adoption should be stayed until she has an opportunity to take advantage of that provision of the CYFEA .

Counsel for DMM presented that DMM had taken some steps to address the issues raised at the PGO hearing and that those steps would be put before the Court on the review application. [ 16 ] Counsel for all of the other parties object strenuously to a stay of the adoption proceedings, citing the best interests of the children. They note that the children have been in care for at least four and a half years with no permanency and have been with the same adoptive family for those years.

The Director argues that s. 35.1 is a last resort to be used only when the children have not been adopted and the biological parents have made significant strides in their efforts to reunite with the children. [ 17 ]

Section 35.1 provides: 35.1(1) If a child is the subject of a permanent guardianship order, a person who was the child’s guardian immediately before the permanent guardianship order was made may apply to the Court for an order terminating the permanent guardianship order if, at the time the application is made, (

a) the child has not been adopted, (

b) more than one year has elapsed since the period for appealing the permanent guardianship order expired or, if the permanent guardianship order was appealed, since the appeal was disposed of, and (

c) more than 2 years has elapsed since the last application brought by the applicant under this section, if any, was disposed of.

(2) On hearing an application under subsection (1), the Court may (

a) terminate the permanent guardianship order and appoint the applicant as a guardian of the child if the Court is satisfied that (

i) the applicant is capable of assuming and willing to assume the responsibilities of guardianship of the child, and (ii) it is in the best interests of the child that the applicant be appointed a guardian, (

b) make a supervision order in conjunction with an order described in clause (a), or (

c) dismiss the application. [ 18 ] In assessing DMM’s application for a stay of the adoption proceedings, the following dates are important, particularly on the issues of delay and the best interests of the children: September 2005 MMM born December 2006 SDM born January 2008 Father acquitted of sexual interference and sexual assault of MMM September 2012 Director ( CYFEA ) apprehends MMM and SDM from the father’s home April 28, 2013 MMM and SDM begin living with DAW and NEW May 2013 Father is incarcerated April 14, 2014 Temporary Guardianship Order (TGO) put in place – mother and father consent August 21, 2014 Director applies to terminate TGO and replace it with a PGO

July 2015 Father convicted of sexual assault February 2016 Father sentenced to 7½ years in prison for sexual assault – reduced to 24 months June 13, 2016 PGO granted (Alberta (Child, Youth and Family Enhancement Act, Director) v DM, 2016 ABPC133, [2016] AJ No 623) June 14, 2016 Collateral Order for Access granted by Veylan Prov. Ct.

J. following 8 week trial – Mother givenaccess to MMM and SDM a minimum of once per month at a public community location June 26, 2016 Father dies July 4, 2016 Mother’s application to stay the access order denied (Sanderman J.) October 19, 2016 Mother’s appeal of PGO struck February 27, 2017 MMM and SDM’s placement status changed to Permanency Placement Adoption March 21, 2017 Foster parents and Director become joint guardians of MMM and SDM April 24, 2017 Mother’s application to review access adjourned sine die June 12, 2017 Foster parents apply to adopt MMM and SDM – DMM objects to the adoption. [19] In Baker v Hunter, 2015 ABCA 309, 609 AR 33, Veldhuis J. set out the test for the stay of an order respecting custody andaccess to children: 8 The test for a stay of a family order respecting custody and access to children is a modified version of the tripartite test for a staypending appeal set out in RJR- MacDonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311 at 334, 111DLR (4th) 385: i.

Is there a serious question to be tried? ii. Will the children suffer irreparable harm if the stay is refused? iii. Which of the parties would suffer greater harm from the granting or refusal of the stay (balance of convenience)? 9 The modification of the test in stay applications dealing with custody and access reflects the necessity of recognizing the paramountimportance of the best interests of the children: CLS v BRS, 2013 ABCA 349 at para 10, 37 RFL (7th) 112. A Is there a serious issue to be tried? [20] The parenting of these children is clearly a serious issue.

An adoption will have significant ramifications for all of the partiesinvolved. However, the history of this matter and the material before the Court establishes that the best interests of the children willultimately weigh in favour of adoption. B Will the children suffer irreparable harm if the stay is granted? [21] The purpose of child protection legislation is to give children permanence and stability. Prior to a PGO, there is a priority toreunite the birth family.

Once a PGO is granted and the related appeals have been heard, the onus and interests shift so that the birth orbiological family no longer have a priority interest; rather, the best interests of the children become the priority. The issue of delaybecomes an important factor. These young girls have had stability for the past four and a half years with the W family. If the adoption isstayed until the application for review is held, there will be a further significant delay of one or two years while the s. 35.1 hearingproceeds either in a one-step or two-step process, as mentioned herein, in Provincial Court.

The time periods for conclusion of anadoption decision in the legislation are short. Even now, this matter has exceeded the time limits prescribed in the legislation. The reasonfor those time limits is to give the children permanence and stability once the PGO is granted. [22] It is also significant that the girls have expressed a desire to be part of their “forever family”. They both expressed that desirethrough counsel and MMM has written a letter to the Court to the same effect. C Balance of Convenience [23] The girls seek stability and permanence.

DMM argues that if the adoption proceedings are stayed, the girls will remain withthe W family and therefore there will be no ensuing upset. The materials before the Court indicate a need and desire on the part of thesechildren for permanence and stability. Life as a foster child is complicated by many formalities and restrictions that do not apply once thechild is adopted. [24] At this point, both the W family and the girls know that their situation is not permanent. They are entitled to a secure future. [25] DMM argues that the kids have been raised in the Catholic faith and she would like that to continue.

In the adoption package,the adoptive parents are clearly involved in a faith community and are raising the girls within that community.

[26] Concerns were also expressed regarding the children being involved in French language education. That decision falls underthe responsibilities of DAW and NEW, having regard to all the circumstances of the children including their abilities and their progressin school. [27] In addressing the second and third parts of the test, the best interests of the child are of paramount importance.

The CYFEAsets out a number of factors to be considered in considering the best interests of the child: 58.1 A Court and all persons who exercise any authority or make any decision under this Act relating to the adoption of a child must doso in the best interests of the child, and must consider the following as well as any other relevant matter: (

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

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

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

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

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

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

g) in the case of an aboriginal child, the uniqueness of aboriginal culture, heritage, spirituality and traditions, and the importance ofpreserving the child’s cultural identity. [28] A number of cases speak to the

interpretation of notice and the merits of a s. 35.1 review. The Courts in Re CW, 2016 ABPC239, [2016] AJ No 1132 and NJ v Alberta (Child, Youth and Family Enhancement Act, Director), 2016 ABPC 47, [2016] AJ No 217noted that a s. 35.1 review is not a reconsideration of the PGO but rather is an assessment of whether the Applicant is capable of, andwilling to, assume responsibility of the children and that it is in their best interests to be returned. DMM must therefore show, on thebasis of reliable evidence, that her parenting deficiencies or circumstances have changed or improved.

There must be a significantchange: Re HMA, 2015 ABPC 29 at para 141, 58 RFL (7th) 132. In Re NS, 2016 ABPC 203, [2016] AJ No 875, Shaw Prov. Ct. J. citesRacine v Woods, (SCC), [1983] 2 SCR 173 at 185, [1983] SCJ No 71 and : But it is the parental tie as a meaningful and positive force in the life of the child and not in the life of the parent that the court has to beconcerned about... that our own self-interest sometimes clouds our perception of what is best for those for whom we are responsible.

Ittakes a very high degree of selflessness and maturity – for most of us probably an unattainable degree – for a parent to acknowledge thatit might be better for his or her child to be brought up by someone else. [29] In the case of NJ, Redman Prov. Ct.

J. stated: 72 ...the presumptions contained in s2 in favor of the biological family no longer apply.... the intervention contemplated thereeffectively ends with the granting of the Permanent Guardianship Order and the obligation of the Court under s35.1, is simply to considerthe “best interests” of the children without any presumption for or against the biological family.

It is interesting to note that the judge in NJ found that the biological parent was willing to assume the role of guardianship of the childrenand was capable, but that it would nevertheless not be in the best interests of the children to terminate the PGO and appoint the biologicalparent as the guardian. [30] These cases help us to understand what the best interests of the child look like. [31] Upon consideration of the best interests of the children in this case, and the various interests at play, I am satisfied thatDMM’s application to stay the adoption proceedings should be dismissed.

These young people have been in transition far too long andthey require permanence and stability. I am mindful that at the end of a s. 35.1 review, ultimately the best interests of the child mayoverride the ability and willingness of the biological parent to be appointed as the guardian. I am satisfied that my findings regarding thebest interests of the children in this case in relation to adoption would very likely not change as a result of a s. 35.1 review. VII Adoption Application [32] Section 70(1) of the CYFEA provides: 70(1) If the Court is satisfied that (

a) the applicant is capable of assuming and willing to assume the responsibility of a parent toward the child, and (

b) it is in the best interests of the child that the child be adopted by the applicant, the Court may order the adoption of the child by the applicant. [33] I have carefully read the adoption files that have been submitted to the Court by the Director on behalf of DAW and NEW andI have no concerns whatsoever regarding the adoptive parent’s capability and willingness to take the responsibility as parents towardsthese two girls. I am also satisfied that it is in the best interests of the children that they be adopted by the applicants immediately.

VIII Access [ 34 ] Veylan Prov. Ct. J. in Alberta (Child, Youth and Family Enhancement Act, Director) v DM , 2016 ABPC 133 , [2016] AJ No 623 summarized the expert reports relating to the mother, the father, and the children. It is abundantly clear in those reports that the children need permanence and security to deal with the past trauma in their lives. There can be no further upset for them. [ 35 ] In my view, no exceptional circumstances exist in this case which would warrant the Court exercising its parens patriae jurisdiction so as to order access by DMM. I am prepared to include in the

Preamble of the Adoption Order: DMM may be entitled to limited access to the children in the sole discretion of DAW and NEW and only in the best interests of the children, including their expressed wishes with respect to access. IX Limit on Future Applications [ 36 ] Since the PGO order in 2016, DMM has brought a number of applications to reunite with the children. It is time to give these young girls some peace from litigation. The specter of litigation is stressful for all those involved. The finalization of the adoption resolves all outstanding issues.

The W family are responsible for the upbringing of these girls. They are charged with making all decisions in relation to DMM’s access. [ 37 ] In light of the finality of the adoption order, if DMM wishes to bring any further application in this matter, she is required to write a letter to me for permission to do so. Once I have considered that letter, I will advise all the parties as to whether or not my permission is granted with regards to that particular application. [ 38 ] Once again, stability and permanence is essential for these young girls to heal from the trauma that they have suffered over the years.

X Conclusion [ 39 ] The application to stay the adoption proceedings is dismissed. [ 40 ] The Court orders the adoption of MMM and SDM by DAW and NEW. [ 41 ] Access by DMM shall be at the sole discretion of DAW and NEW. [ 42 ] Given the finality of the adoption order, DMM is required to write me a letter setting out the details of any further application in order to obtain leave to file the application. Heard on the 7 th day of September, 2017. Dated at the City of Edmonton, Alberta this 20 th day of September, 2017. B.A. Browne J.C.Q.B.A. Appearances: JoAnn T.

Quinn, Carr Quinn King Counsel for the Children Gloria Hammermeister, Counsel for the Applicant Tanya Kuehn, Alberta Justice Counsel for the Director Melissa Lefebvre, Callioux Law Counsel for the proposed Adoptive Parents