SC v TC, 2018 ABQB 1051

Court of Queen’s Bench of Alberta Citation: SC v TC, 2018 ABQB 1051 Date: 20181221 Docket: DA01 010245 Registry: Calgary Between: S.C. Plaintiff - and - T. C. Dependent Adult 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 identification ban. _______________________________________________________ Endorsement of the Honourable Madam Justice April D. Grosse _______________________________________________________ Introduction [ 1 ] This Application arises in the context of a proposed open private adoption of a minor child G.C. G.C.’s parents are T.C. and A.C.

T.C. is subject to a guardianship order (the “T.C. Guardianship Order”) under the Adult Guardianship and Trusteeship Act, SA 2008, c A-4.2 (“AGTA”). His mother, S.C., is his guardian. Issue

[ 2 ] The issue before the Court is whether S.C. has the authority under the T.C. Guardianship Order to consent on T.C.’s behalf to G.C. being adopted by third parties. Factual Background [ 3 ] T.C. has been subject to a guardianship order since he reached the age of majority. The most recent order, the T.C. Guardianship Order, was granted in April, 2014 by way of desk application.

G.C. was born later in 2014. [ 4 ] T.C. and A.C. have been parenting G.C. since she was born with significant support and assistance from S.C., other family members and friends and external agencies. [ 5 ] Earlier this year, a Director under the Child, Youth and Family Enhancement Act, RSA 2000, c C-12 (“CYFEA”) filed an Application for Apprehension and Application for Permanent Guardianship Order (“PGO”) with respect to G.C. The Director’s application has been adjourned in Provincial Court while these matters of consent to a private adoption are addressed.

In the meantime, the Director obtained an interim order pursuant to section 26(2) of the CYFEA and G.C. is in temporary kinship care. [ 6 ] At or around the time of the Director’s application, S.C. and others enlisted the services of Christian Adoption Services to assist in facilitating a private adoption for G.C. A family in Alberta has met G.C. and wants to adopt her. However, I am advised that a number of the steps that are required in order to make the adoption application cannot be completed because of the Director’s pending proceedings.

So, there is no actual adoption application before this Court. [ 7 ] The Director is prepared to stay or withdraw the PGO proceedings if T.C. and A.C. consent to the private adoption. A.C. is represented by counsel and she consents. T.C. is represented by counsel and does not consent. He takes the position that the adoption is not in G.C.’s best interest and also wishes to contest the proceedings brought by the Director. [ 8 ] S.C. believes that the private open adoption is in the best interest of both T.C. and G.C.

Procedural Background [ 9 ] On October 2, 2018, S.C. filed an application in court file open for the T.C. Guardianship Order, seeking an order clarifying her authority. In particular, she sought an order confirming that she could sign a Consent to Adoption for G.C. Initially, S.C. also sought an order pursuant to section 68(4) of the CYFEA , dispensing with T.C.’s consent to the adoption.

She ultimately withdrew the latter request. [ 10 ] I heard submissions on behalf of S.C., T.C., A.C., Christian Adoption Services and the Director on October 16, 2008 in a one- hour special application. [ 11 ] Counsel has been appointed for G.C. but I am advised that the retainer is limited to the PGO proceedings in the Provincial Court. [ 12 ] During the hearing on October 16, I inquired about whether the Office of the Public Guardian and Trustee was aware of the issues raised in this case, and in particular, the issue as to the scope of authority of the guardian of a represented adult.

I thought that they may want to be heard given their role as guardian in many cases. Counsel before me were able to relay anecdotally that the Public Guardian has taken the position in other cases that as guardian of a represented adult, they have the authority to consent to adoptions on behalf of that adult.

I also thought the Public Guardian’s office might be able to provide assistance and perspective to the Court in considering the issue, by virtue of their expertise and experience in guardianship matters. [ 13 ] An adjournment of the hearing was also necessary to address some late-filed affidavits. [ 14 ] During the adjournment, counsel for the Director kindly advised the Office of the Public Guardian and Trustee about these proceedings. They apparently advised that they see no role for their office. [ 15 ] I reserved my decision following the October 30 hearing.

Positions of the Parties [ 16 ] S.C. argues that her authority under the T.C. Guardianship Order is broad enough to encompass consenting to the adoption of G.C.

She points in particular to the guardian’s authority to determine where and with whom the adult should live, to carry on legal proceedings for the adult relating to non-financial matters, and to make “decisions regarding other matters required by the guardian to protect the best interests of the represented adult.” [ 17 ] S.C. points to case law to the effect that a guardian under an adult guardianship order can make big decisions for an adult, including life or death decisions. [ 18 ] S.C. has submitted evidence about the health impacts suffered by T.C. as a result of trying to parent G.C. and in dealing with the intervention by the Director.

Her position is that it is not in his best interests from a health perspective to continue being a full-time parent. S.C. firmly believes that the application for a PGO will succeed and that it is in the best interests of T.C. and G.C. for an open adoption to proceed before G.C. becomes subject to a PGO. She believes the private adoption will allow for the care of G.C., while still facilitating a relationship between G.C., T.C. and the rest of the family.

If G.C. becomes subject to a PGO, there are no guarantees that she would be placed with this same family or that T.C., A.C. or any other members of her biological family would be able to maintain a

relationship with her. [ 19 ] S.C. and the parties supporting her argue that denying S.C.’s authority to consent to the adoption under the T.C. Guardianship Order would result in T.C. being allowed to make this important decision for G.C. when he has been held incapable of making important decisions for himself. [ 20 ] A.C. and Christian Adoption Services support S.C.’s position. [ 21 ] For his part, T.C. argues that the T.C. Guardianship Order is not broad enough to grant S.C. the authority to consent to G.C.’s adoption on his behalf. He says that under the legislation and the T. C.

Guardianship Order, S.C.’s authority is restricted to “personal matters” relating to him . S.C. is T.C.’s guardian, not G.C.’s guardian. It is G.C.’s guardian who must consent to the adoption under the CYFEA . [ 22 ] The Director would like to see resolution by adoption, but takes no formal position on the

interpretation of the T.C. Guardianship Order. The Director reiterated that Child and Family Services cannot guarantee that G.C. would be placed with the proposed adoptive family if the she is subject to a PGO. The family would need to be approved and then there would have to be reasons to choose them for G.C. instead of other approved homes. Decision and Analysis [ 23 ] For the reasons that follow, I am not satisfied that the T.C. Guardianship Order grants S.C. authority to consent to G.C.’s adoption on behalf of T.C. [ 24 ] The need for a guardian’s consent to adoption arises as a matter of statute.

Section 59(1) of the CYFEA states that no adoption order may be made in respect of a child without the consent of all the guardians of the child. Section 1(1) of the CYFEA defines who is a “guardian”: (

i) a person who is or is appointed a guardian of the child under

Part 2 of the Family Law Act , or (ii) a person who is a guardian of the child under an agreement or order made pursuant to this Act. [ 25 ] In this case, subject to the Director’s intervention, T.C. and A.C., as G.C.’s parents, are her guardians. Again, subject to the Director’s intervention, there has never been an order removing T.C. as guardian of G.C. or restricting his authority as one of her guardians.

There has never been an application to appoint S.C. as a guardian for G.C. [ 26 ] Because T.C.’s consent is being sought qua guardian, as that term is defined and used in the CYFEA , finding that S.C. has the power to consent to G.C.’s adoption on behalf of T.C. suggests that as T.C.’s guardian, S.C. steps into his shoes legally as guardian of G. C. I have not been provided with any authority to support this proposition.

I note that the definition of “guardian” set out above from the CYFEA does not include the AGTA guardian of a guardian who is a represented adult. [ 27 ] Guardians appointed by orders under the AGTA have a duty to act in the best interests of the represented adult. Based on the record before me, I have no doubt that in this case, S.C. also has G.C.’s best interests at heart. However, she acknowledges that at law, her duty is to T.C., not G.C.

While it may be that in many situations, the best interests of the represented adult and the best interests of the minor child of that adult will align, this will not always be the case. [ 28 ] If S.C. may act on behalf of T.C. qua guardian of G.C. for the purpose of consenting to G.C.’s adoption, there is no obvious reason why she would not be similarly authorized to act on T.C.’s behalf in any other aspect of his role as guardian of G.C.

In other words, the logical end of what S.C. is seeking is that she – and similarly placed guardians of represented adults – would be able to step into the shoes of the represented adult qua guardian of a minor child without application or independent assessment of whether they were a suitable guardian of the minor child, and regardless of the potential conflict between the two roles. [ 29 ] I asked the parties whether they could point to any distinction between S.C. acting on T.C.’s behalf to consent to G.C.’s adoption and S.C. otherwise exercising T.C.’s authority qua guardian of G.C.

They were not able to do so. I have considered whether the specific threshold act of ceasing to be G.C.’s guardian by way of consenting to someone else becoming her guardian through adoption could be distinguished from otherwise acting as her guardian. However, even if that were the case (and I am not deciding the point), the consent that S.C. seeks to execute is not limited to T.C. ceasing to be G.C.’s guardian. Rather, it would go further and consent to G.C. being adopted by a specific family. [ 30 ] Turning to the T.C. Guardianship Order and the AGTA, G.C. was not born when the T.C.

Guardianship Order was granted. So, there is no argument that the T.C. Guardianship Order specifically contemplated this particular authority for S.C. Rather, the authority would have to be found in the more general terms of the T.C. Guardianship Order. [ 31 ] S.C. is correct that the T.C.

Guardianship Order allows her to act and make decisions with respect to a wide range of matters for T.C., including: his health care; where, with whom and under what conditions T.C. is to live, either permanently or temporarily; with whom T.C. may associate; and the carrying on of any legal proceeding that does not relate primarily to the financial matters of T.C. The T.C. Guardianship Order also includes the following more general provision: “the following personal matter(

s) of the adult that the Court considers necessary, namely: • To make decisions regarding other matters required by the guardian to protect the best interests of the represented adult.” [emphasis added]

[ 32 ] However, this authority must be interpreted in a manner consistent with the AGTA , which only contemplates decision-making by a guardian on “personal matters of the adult”. Section 33(1) of the AGTA directs the Court to “grant to the guardian authority to act and make decisions with respect to only those personal matters of the adult that the Court considers necessary.” Section 33(2) states that the Court may “specify any of the following personal matters of the adult as matters with respect to which the guardian has authority to act and make decisions”. The list of matters included in the T.C.

Guardianship Order is derived from the list in section 33(2) of the AGTA. [ 33 ] The decision as to whether to consent to G.C.’s adoption is a decision that greatly affects T.C. I understand S.C.’s concerns about the impact of T.C.’s role as guardian on his health. However, in my view, the decision as to whether to consent to G.C.’s adoption it is not a “personal matter of the adult” as that phrase is used in the AGTA . [ 34 ] No other provisions in the AGTA contemplate the guardian of a represented adult having any authority in respect of the minor child of that represented adult. •

Section 27 of the AGTA addresses guardianship in urgent cases. It refers only to immediate danger or death of the adult or serious physical or mental harm to the adult. It says nothing about the adult’s minor child. In other words, there is no express power to grant guardianship over a represented adult to protect that person’s minor child. •

Section 34 of the AGTA allows for reimbursement for “necessaries of the represented adult”. •

Section 35 of the AGTA specifically sets out the duty of the guardian to exercise his or her authority in the represented adult’s best interests without mention of any minor children. This stands in contrast to

section 56 of the AGTA, the corresponding “duties and responsibilities”

section for trustees of represented adults. Section 56(3) expressly contemplates a trustee exercising his or her authority for the benefit of the represented adult’s minor children. • There is no provision under the AGTA allowing for the guardian of a represented adult to step in as guardian of that represented adult’s minor child, even temporarily. This can be contrasted to section 7(1)(

e) of the Personal Directives Act , RSA 2000, cP-6, which specifically contemplates that a personal directive may designate an agent for temporary care of minor children. [ 35 ] I have not been provided with any authority wherein a guardian appointed under the AGTA was found to have the authority to step into the shoes of the represented adult in respect of any other role where that represented adult may be required to act in the best interests of a third party (e.g. as a trustee or power of attorney). [ 36 ] I acknowledge S.C.’s concern that unless she is authorized to act for T.C. qua guardian of G.C., the result is that T.C., who has been declared to lack capacity to make many decisions for his own safety and security is potentially left with decision-making power in respect of a vulnerable child.

That scenario is troubling. However, I am not convinced that the answer lies in expanding S.C.’s authority beyond what is contemplated by the T.C. Guardianship Order and the AGTA. This case turns on a particular set of facts, where the proposed private adoption application has not been filed, because of the Director’s intervention. There may well be other legal options available in cases where a Director has not already taken action.

Further, the legislative branch has established a mechanism for protecting minor children when questions arise as to the ability of their existing guardian to do so – the CYFEA and the Director. This mechanism may not work in the way that the parties wish it would in this case, but it is the system available. Other Relief [ 37 ] As noted above, S.C. originally requested that in the alternative, the Court dispense with T.C.’s consent to the adoption pursuant to section 68(4) of the CYFEA .

However, this application was withdrawn after the Director clarified that this dispensation would not permit the Director to stand down the PGO proceedings. Further, section 68(4) contemplates an existing application for adoption. [ 38 ] During the course of argument, I raised

section 30 of the Family Law Act (“FLA”), which allows the Court to review a “significant decision” of a guardian of its own motion. All parties took the position that

section 30 of the FLA is not available to the Court in this circumstance as a result of the operation of

section 39 of the CYFEA . [ 39 ] A.C. suggested that the Court could exercise its parens patriae jurisdiction. However, I am not satisfied that there is a legislative gap, given the CYFEA . Conclusion [ 40 ] For the reasons set out above, S.C.’s application is dismissed. This finding should not be taken as a finding that the proposed adoption is or is not in G.C.’s best interest.

That issue is not before me. [ 41 ] None of the materials submitted suggest that any party is seeking costs, but if any of the parties wish to address costs are any other matter arising from this Application or this decision, they are welcome to contact my office. [ 42 ] I thank all parties and counsel again for the admirable way in which they handled the delicate matters in this Application. Heard on the 16 th and 30 th days of October, 2018. Dated at the City of Calgary, Alberta this 21 st day of December, 2018.

April D. Grosse J.C.Q.B.A. Appearances: Debbie D. Johnson for S.C. Jessica L. Nelson for T.C. Ryan Tkachuk for A.C. Don Hadley for Christian Adoption Services Meagan Watts for the Director of Children and Family Services