SM Appellant/Applicant - v. -, 2019 ABQB 972

Court of Queen’s Bench of Alberta Citation: SM v Alberta ( Child, Youth and Family Enhancement Act , Director), 2019 ABQB 972 Date: 20191218 Docket: FL01 28890; FL01 28887 Registry: Calgary Between: SM Appellant/Applicant - and - Alberta (Director Child, Youth and Family Enhancement Act), KD and CD Respondents -and- Docket : FL01 28887 Between: Siksika Nation Appellant/Applicant - and - Director of Child and Family Services, KD, CD and SM

Respondents Restriction on Publication Identification Ban – See the Child, Youth and Family Enhancement Act ,

section 126.2 . No one may publish the name or photograph of a child, or of the child's parent or guardian, in a way that reveals that the child is receiving, or has received, intervention services. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ Reasons for Decision of the Honourable Madam Justice C. Dario _______________________________________________________ Table of Contents 1. Introduction . 4 2. Background . 4 3. Grounds of Appeal and Applications . 5 4. Standard of Review .. 6 5.

Siksika Nation’s Appeal and Applications on Appeal 6 5.1 Whether the Provincial Court Judge erred in denying Siksika Nation’s Application to Intervene in the Provincial Court Hearing . 6 5.1.1. Whether the Provincial Court Judge breached the principle of audi alterem partem and failed to give Siksika Nation due process . 7 5.1.2.

Whether the Provincial Court Judge erred in her consideration of the relevant factors for granting intervenor status; and in placing undue weight on the issue of delay . 9 5.2 Siksika Nation’s Applications on Appeal 13 5.2.1 Siksika Nation’s Originating Application to Intervene in the Appeal of SM ... 13 a. The first Pedersen factor 14 b. The second, third, and fourth Pedersen factors . 17 c. The fifth Pedersen factor 19 d. The sixth Pedersen factor 19 e. The seventh Pedersen factor 19 f. The eighth Pedersen factor 20 g. Conclusion on the Pedersen factors . 20 5.2.2.

Siksika Nation’s Fresh Evidence Application . 21 a. The Disclosure from the Director of Child and Family Services . 24 b. The Report of the Truth and Reconciliation Commission . 24

c. Adam North Peigan, Thomas McMahon, and the apology by Premiere Rachel Notley to survivors of the Sixties Scoop . 26 d. Dr. Choate, Dr. Sinclair, Dr. Carriere . 27 6. SM’s Appeal 34 6.1. Whether the Provincial Court Judge’s conduct gave rise to an apprehension of bias . 34 6.1.2. Whether the Provincial Court Judge was not impartial to the evidence of Ms. Evelyn Wotherspoon 36 6.1.3. Whether the Provincial Court Judge was not impartial because she refused the evidence of Ms. Deanna Ledoux 41 6.1.4.

Whether the Provincial Court Judge was not impartial because of comments made to SM’s witnesses during the hearing . 43 6.2 Whether the Provincial Court Judge erred in granting the Foster Parents’ private guardianship application 45 6.2.1. Whether the Provincial Court Judge erred in prioritizing attachment theory over the other factors in the best interests of the child test 46 6.2.2. Whether the Provincial Court Judge failed to take judicial notice of the Sixties Scoop impact 51 6.2.3. Whether the Provincial Court Judge failed to interpret the CYFEA in accordance with

section 35 of the Constitution Act 52 7. Disposition . 53 Citation Note . 54 1. Introduction [ 1 ] At the heart of this appeal is the question of what is in the best interests of two children, who are four and five years old, who are Indigenous and who have lived since birth with their non-Indigenous foster parents. [ 2 ] CD and KD (referred together as the “ Foster Parents ” and individually by initials) applied for private guardianship in relation to URM and PKM (referred together as the “ Children ” and individually by initials), pursuant to

section 52 of the Child, Youth and Family Enhancement Act, RSA 2000, c C-12 [ CYFEA ]. SM, the maternal great-aunt of the Children, subsequently filed a competing private guardianship application. [ 3 ] The hearing to determine private guardianship occurred in February 2018 (“ Provincial Court Hearing ”) before the late Honourable Judge Cook-Stanhope of the Provincial Court of Alberta (referred to as the “ Provincial Court Judge ”). On May 16, 2018, the Provincial Court Judge granted the Foster Parents’ private guardianship application and dismissed SM’s application.

The present application is an appeal by SM of that decision, which is reported as URM (Re) , 2018 ABPC 116 (“ Private Guardianship Decision ”). [ 4 ] Before me is also an appeal by Siksika Nation of a separate decision by the Provincial Court Judge, denying Siksika Nation’s application for intervenor status in the Provincial Court Hearing (“ Application to Intervene ”).

That decision is reported as URM (Re) , 2018 ABPC 96 (“ Intervenor Decision ”). [ 5 ] Separate from the appeal of the Intervenor Decision, Siksika Nation filed an originating application asking this Court to grant it intervenor status on appeal (“ Originating Application to Intervene on Appeal ”). Siksika Nation also filed an application asking this Court to admit fresh evidence on appeal (“ Fresh Evidence Application ”). [ 6 ] The Foster Parents are the Respondents in both appeals and in Siksika Nation’s Originating Application to Intervene on Appeal and Fresh Evidence Application on appeal. 2.

Background [ 7 ] URM was born in June 2014, and was hospitalized due to medical issues, including seizures. A few months later, when she was stable, she was placed with the Foster Parents. PKM was born in August 2015. A few days after her birth, she was also placed with the Foster Parents. Both Children have the same mother (the “ Mother ”). The Mother has ties to the Mosquito Grizzly Bear’s Head Lean Man First Nation in Saskatchewan. The father of URM (the “ Father ”) has ties to the Siksika Nation in Alberta.

The father of PKM has not been identified to the Court. [ 8 ] After the Children were placed with the Foster Parents, the Director filed a Permanent Guardianship Order (“ PGO ”) application in the Provincial Court and hearing dates were set. [ 9 ] With the consent of the Mother and, by the Father with respect to URM, on September 3, 2015, the Provincial Court Judge granted the application for the PGO for each child. [ 10 ] After the PGO appeal period expired, the Foster Parents filed a claim for guardianship under the Family Law Act , SA 2003, C F-4.5 [ FLA ] in the Court of Queen’s Bench.

[11] Shortly thereafter, SM filed a similar claim for guardianship in the Court of Queen’s Bench under the FLA. At the time, suchclaims could be brought pursuant to the FLA on notice to the Director: FLA, s 17(1)(ii). Since the February 2019 amendments to theFLA, such claims would now be brought only under the CYFEA: FLA, s 23(5.1). [12] The competing applications were set down for a Judicial Dispute Resolution, which was held in early 2016. A Band delegatefrom Siksika Nation, Ms. Esther Running Rabbit, was present at this JDR.

The parties did not resolve the matter. [13] The matter was then set down for a hearing in the Court of Queen’s Bench. The hearing date was far into the future, however,so upon the recommendation of the Director, the parties discontinued their claims in the Court of Queen’s Bench. The Director providedconsent to the parties to apply for private guardianship under section 55(1)(

a) of the CYFEA, which allowed the parties to proceed in theProvincial Court. [14] The private guardianship claims were set down for a hearing in the Provincial Court. The Provincial Court Judge heard theclaims in February 2018, along with a request from Siksika Nation for intervenor status.

On May 16, 2018, the Provincial Court Judgerendered her Private Guardianship Decision granting the Foster Parents’ private guardianship application and dismissing SM’sapplication, and in the separate Intervenor Decision, she denied the Application to Intervene. [15] Both the Private Guardianship Decision and the Intervenor Decision were appealed to the Court of Queen’s Bench. Both SMand Siksika Nation filed substantial written submissions, and Siksika Nation filed extensive evidence to go along with its Fresh EvidenceApplication. The parties appeared on March 28, 2019 for oral submissions. 3.

Grounds of Appeal and Applications [16] In written and oral submissions, Siksika Nation and SM enumerated many grounds and sub-grounds of appeal, both in respectto the appeal of the Intervenor Decision and the appeal of the Private Guardianship Decision. Both sets of appeal submissions overlap. Ihave considered each ground and sub-ground of appeal and summarize them as follows: 1. Whether the Provincial Court Judge erred in denying Siksika Nation’s Application to Intervene: a. Whether the Provincial Court Judge breached the principle of audi alterem partem and failed to give Siksika Nation due process; b.

Whether the Provincial Court Judge erred in her consideration of the relevant factors for granting intervenor status; and in placingundue weight on the issue of delay; 2. Whether the Provincial Court Judge’s conduct gave rise to a reasonable apprehension of bias: a. Whether the Provincial Court Judge was not impartial in relying on evidence of Ms. Evelyn Wotherspoon; b. Whether the Provincial Court Judge was not impartial because she refused the evidence of Ms. Deanna Ledoux; c. Whether the Provincial Court Judge was not impartial because of comments made to SM’s witnesses. 3.

Whether the Provincial Court Judge erred in granting the Foster Parents’ private guardianship application: a. Whether the Provincial Court Judge erred in prioritizing attachment theory over the other factors in the best interests of the childtest; b. Whether the Provincial Court Judge failed to take judicial notice of the Sixties Scoop impact; c. Whether the Provincial Court Judge failed to interpret the CYFEA in accordance with

section 35 of the Constitution Act. [17] As noted, Siksika Nation also made two applications in this appeal: 1. An Originating Application to Intervene in the Appeal of SM; and 2. A Fresh Evidence Application. 4.

Standard of Review [18] Due to the various grounds and sub-grounds of appeal, I will address the standards of review as they arise; however, I rely onthe following general guidance from the Supreme Court of Canada. [19] The standard of review on appeal for alleged errors in law is the standard of correctness, while alleged errors of fact arereviewed for palpable and overriding error: Housen v Nikolaisen, 2002 SCC 33 at paras 8, 10, 25 [Housen]. [20] Alleged errors of mixed fact and law are reviewed for palpable and overriding error: Housen at para 26, 37.

If the error is anextricable error of law, questions of mixed fact and law are reviewed for correctness: Housen at paras 36-37; Canada (Director of Investigation and Research) v Southam Inc, (SCC), [1997] 1 SCR 748 at para 39, 144 DLR (4th) 1.

5. Siksika Nation’s Appeal and Applications on Appeal [ 21 ] Before I consider SM’s appeal, I must address to what extent Siksika Nation may properly participate in this appeal. [ 22 ] I will first deal with whether the Provincial Court Judge erred in denying Siksika Nation’s Application to Intervene.

I will then decide whether to grant Siksika Nation’s Originating Application to Intervene on Appeal and its Fresh Evidence Application. 5.1 Whether the Provincial Court Judge erred in denying Siksika Nation’s Application to Intervene in the Provincial Court Hearing [ 23 ] Siksika Nation put forward three sub-grounds of appeal in its submissions.

It argues first, that the Provincial Court Judge breached the principle of audi alterem partem and failed to give it due process; second, erred in her consideration of the relevant factors in granting intervenor status; and third, erred in putting undue weight on the issue of delay. As the third ground is a subset of the second ground, I will address them together. [ 24 ] For the reasons set out below, I find that the Provincial Court Judge did not err in denying Siksika Nation’s Application to Intervene.

Siksika Nation was given due process, the Provincial Court Judge considered the relevant factors for granting intervenor status and applied the relevant facts of the case to those factors, and she did not put undue weight on the issue of delay given the circumstances of the case. 5.1.1.

Whether the Provincial Court Judge breached the principle of audi alterem partem and failed to give Siksika Nation due process [ 25 ] Siksika Nation argues the Provincial Court Judge breached the principle of audi alterem partem by not giving it due process in its Application to Intervene: Malton v Attia , 2016 ABCA 130 at para 35 [ Malton ]. The Alberta Court of Appeal in Malton sets out the standard of review for when a breach of audi alterem partem is alleged.

The Court stated “[w]here procedural unfairness at trial is alleged, the task of the reviewing court is to assess whether the appellants were afforded the procedural opportunities required by law”: Malton at para 28 . [ 26 ] Siksika Nation’s reliance on the principle of audi alterem partem does not accord with my understanding of that principle. The principle applies to parties to an action: Malton at para 35 . As stated by the Alberta Court of Appeal “[t]he essence of the audi alterem partem rule is to give the parties ‘a fair opportunity of answering the case against them’”: Malton at para 37 .

Specifically, the principle of audi alterem partem stands to ensure that parties have the fair opportunity to correct or contradict relevant statements prejudicial to their view on factual matters or to answer contrary arguments on matters of law: Malton at para 37 . Siksika Nation was not a party to the Provincial Court Hearing and there was no case made against them.

The audi alterem partem rule does not apply. [ 27 ] I will nonetheless determine whether the Provincial Court Judge afforded Siksika Nation the procedural opportunities stipulated by law, pursuant to principles of fairness and the rules of natural justice, as opposed to the principle of audi alterem partem. [ 28 ] Siksika Nation argues: • After Siksika Nation indicated it was seeking leave to intervene, the Provincial Court Judge stated that she required written argument on whether she should grant the application.

Siksika Nation submits that on that same day, the Provincial Court Judge communicated that notwithstanding the written argument, she intended to hear closing arguments from the Foster Parents [and incidentally all other parties] on the private guardianship application.

Siksika Nation argues that hearing the closing arguments before considering the Application to Intervene made Siksika Nation’s arguments meaningless; • The Provincial Court Judge stated that she would not hear argument from Siksika Nation as to what information it would provide as an intervenor before hearing the Application to Intervene; and • The Provincial Court Judge heard closing arguments despite knowing that Siksika Nation intended to lead expert evidence speaking to the substantive aspects of the private guardianship applications. [ 29 ] This intervention application was not brought normally.

Rather, Siksika Nation’s Application to Intervene arose on the fourth day of a five-day hearing when a lawyer, Lynsey Mincher, advised the Provincial Court Judge that she had been retained moments earlier to represent Siksika Nation. Ms. Mincher requested time to obtain instructions. [ 30 ] The Provincial Court Judge directed Ms. Mincher to take time to prepare written arguments and present them on the next scheduled court date, which was the last day of the Provincial Court Hearing.

The Provincial Court Judge asked that the written arguments address the basis for the Application to Intervene and the reason why Siksika Nation had not brought the application before the fourth day of the Provincial Court Hearing. [ 31 ] On the next (and last) day of the Provincial Court Hearing, after receiving the written submissions, the Provincial Court Judge gave Siksika Nation the opportunity to speak to the Court and to explain why it did not take any steps to apply for intervenor status prior to the fourth day of the Provincial Court Hearing.

Siksika Nation argued that it was unaware of the Provincial Court Hearing; however, the Provincial Court Judge found that this was not true. Siksika Nation’s Band delegate, Ms. Running Rabbit, was aware of the Children’s circumstances and was present two years earlier at the JDR meeting in the Court of Queen’s Bench. [ 32 ] The Provincial Court Judge also gave Siksika Nation the opportunity to speak to the basis for the Application to Intervene. Siksika Nation indicated it wanted to give submissions on the importance of cultural identity and safety for Indigenous children, and on

the harm suffered by children removed from Indigenous cultures. Siksika Nation wanted to call Ms. Deanna Ledoux, an expert witnesswho would provide evidence on cultural identity and safety. It argued the case could not be decided without this evidence. TheProvincial Court Judge heard Siksika Nation’s proffer of evidence. [33] The Provincial Court Judge noted that Ms. Ledoux was not a new witness, but rather the same expert witness that she refusedto hear as one of SM’s witnesses earlier in the hearing. By way of background, the Provincial Court Judge had not allowed SM to callMs.

Ledoux because the application to call this witness arose part way through the Provincial Court Hearing, with no notice to the otherparties, and after the Director and the Foster Parents had called their witnesses and concluded their evidence. SM’s counsel proposed anadjournment of a few months to allow this witness to meet with the Children and prepare reports. [34] The Provincial Court Judge found this delay would be contrary to the best interests of the Children, which is the paramountconsideration. She said Ms. Ledoux’s field of expertise was not clearly articulated.

She also noted that the adjournment request would notalign with the availability of the Court and the other parties, necessitating an even longer adjournment. [35] Siksika Nation’s proposed interruption of the trial was in large measure an abusive attempt to collaterally re-litigate theProvincial Court Judge’s ruling on not allowing this witness. [36] The Provincial Court Judge considered Siksika Nation’s submissions and found that it did not address the lateness of theapplication, the potential delay that would result, or the positions of the parties in the action, including how, when or whether the partieswould be able to respond to Siksika Nation’s proposed submissions and evidence. [37] Further, the Provincial Court Judge’s decision to proceed with the parties’ closing submissions does not demonstrate any lackof due process.

There are other reasons for this decision, such as encouraging expediency, limiting the use of court resources, minimizingthe prejudice to the parties, and considering the interests of the Children in a timely resolution of the matter. Presumably, if the Courtgranted intervenor status to Siksika Nation, it would not just be a matter of allowing it to present its evidence, with an opportunity forother parties to cross-examine and then move to closing statements. The other parties may have wished to re-open their cases and calladditional witnesses.

The Provincial Court Judge found this procedural prejudice was not addressed by Siksika Nation. [38] Despite the lateness of the application and Siksika Nation’s failure to adequately address the impact of the late application,the Provincial Court Judge gave Siksika Nation the opportunity to provide written and oral submissions.

Not only did the ProvincialCourt Judge consider these arguments, she discussed them at length in the Intervenor Decision, which was published at 2018 ABPC 96,as noted above. [39] For these reasons, I find that the Provincial Court Judge afforded Siksika Nation with the procedural opportunities required,and therefore this ground of appeal is dismissed. 5.1.2.

Whether the Provincial Court Judge erred in her consideration of the relevantfactors for granting intervenor status; and in placing undue weight on the issue ofdelay [40] This is a question of mixed fact and law where the issue is the application of a legal standard to a set of facts, and therefore issubject to a standard of palpable and overriding error, unless an extricable error law can be identified in which case the standard iscorrectness: Housen at paras 26-36.

A palpable and overriding error occurs where the trial judge makes a manifest error, ignoresconclusive or relevant evidence, misunderstands the evidence or draws erroneous conclusions from it: Toneguzzo-Novell v Burnaby Hospital, (SCC), [1994] 1 SCR 114 at 121, 110 DLR (4th) 289 [Toneguzzo-Novell].

Absent any palpable andoverriding errors or identifiable extricable errors of law, this Court must not interfere with the Provincial Court Judge’s decision to denySiksika Nation’s Application to Intervene: Toneguzzo-Novell at 121; see also Housen at paras 3, 4, 10-12, 24, 37. [41] Siksika Nation applied for intervenor status at the Provincial Court Hearing to provide evidence and submissions regardingthe importance of cultural safety for Indigenous children, the unique significance of “family” to First Nations, and the harm suffered bychildren who are taken from Indigenous communities and cultures. [42] To determine whether this application should be granted, the Provincial Court Judge considered the correct test for leave tointervene.

She cited the decision in Orphan Well Association v Grant Thornton Limited, 2016 ABCA 238 [Orphan Well], which setsout the evolution of intervenor applications in Alberta: [8] Granting intervener status is a two-step process. The court first considers the subject matter of the appeal; and then determinesthe proposed intervener’s interest in it: Papachase Indian Band (Descendants of) v Canada (Attorney General), 2005 ABCA 320 at para5, 380 at 301. In determining a proposed intervener’s interests, a court should examine (

a) if the intervener will be directly andsignificantly affected by the appeal’s outcome, and (

b) if the intervener will provide some expertise or fresh perspective on the subjectmatter that will be helpful in resolving the appeal. [9] Papachase stated parties could be granted intervener status if they met either criterion. However, subsequent decisions havedetermined that simply establishing an affected interest is not enough to grant leave. A proposed intervener must also offer to providefresh information or a fresh perspective: Pedersen v. Van Thournout, 2008 ABCA 192 (Pedersen) at para 10, 432 AR 219.

If parties canintervene simply because they have affected interests, the number of potential interveners would greatly increase and unduly delay theappeal process without a corresponding benefit. [43] The Provincial Court Judge correctly set out the eight factors from Pedersen v Alberta, 2008 ABCA 192 [Pedersen] at para 3,which assists in determining whether to grant intervenor status: 1. Will the intervenor be directly affected by the appeal?

2. Is the presence of the intervenor necessary for the court to properly decide the matter? 3. Might the intervenor’s interest in the proceedings not be fully protected by the other parties? 4. Will the intervenor’s submission be useful and different or bring particular expertise to the subject matter of the appeal? 5. Will the intervention unduly delay the proceedings? 6. Will there possibly be prejudice to the parties if intervention is granted? 7. Will intervention widen the lis between the parties? 8.

Will the intervention transform the court into a political arena? [ 44 ] Siksika Nation argues that the Provincial Court Judge erred in law in determining the relevant factors for intervention and in misapplying weight to certain facts. [ 45 ] For the reasons that follow, I do not find that the Provincial Court Judge made any overriding or palpable errors in how she considered the Pedersen factors, and Siksika Nation has not identified any extricable errors of law.

She applied the correct legal test from Orphan Well ; her application of the facts in this analysis is owed deference and is reasonable. [ 46 ] Regarding the first Pedersen factor, Siksika Nation argues that the Provincial Court Judge conflated the concept of “direct interest” with “direct legal interest.” I do not agree with this characterization of the Provincial Court Judge’s reasons in her Intervenor Decision. [ 47 ] At paragraph 76 of the Intervenor Decision, the Provincial Court Judge stated the correct factor from Pedersen : “whether the Intervenor will be directly affected by the appeal.” She stated the principle of “direct legal interest” in the context of quoting Siksika Nation’s written submissions.

In that submission, Siksika Nation conceded that it did not have a “direct legal interest” in the outcome of the proceedings, but that it is concerned and interested in the welfare of its citizens as well as the administration of the child welfare and private guardianship regimes. [ 48 ] The Provincial Court Judge did not use the standard of “direct legal interest” in the rest of her discussion of the first Pedersen factor. In paragraphs 76-79, the Provincial Court Judge stated that Siksika Nation did not have a “direct interest” in the proceedings with respect to the best interests of the Children.

The Provincial Court Judge also noted that neither the Foster Parents nor SM are members of Siksika Nation, and only URM is capable of being registered with Siksika; PKM is not.

At paragraph 81, the Provincial Court Judge concluded that Siksika Nation was not “directly affected.” This conclusion was supported by her consideration of the facts. [ 49 ] The second, third and fourth Pedersen factors consider whether the intervenor is necessary for the Court to decide the matter; whether the intervenor’s interest in the proceedings will be protected by another party; and whether the intervenor’s submissions will be useful and different, or bring particular expertise to the subject matter of the appeal.

Siksika Nation argues that the Provincial Court Judge solely focused on the fact that the evidence Siksika Nation sought to call was evidence that SM had already called, or could have called. It argues that these Pedersen factors ask the Court to look at not only the evidence proposed by the intervenor, but also whether the intervenor can present a unique perspective or bring expertise in its submissions. Siksika Nation states that the Provincial Court Judge did not consider this. [ 50 ] This characterization of the Provincial Court Judge’s decision is not supportable.

At paragraph 89 of the Intervenor Decision, Provincial Court Judge stated “there was nothing to suggest that Siksika had any potentially useful or different perspective to offer on the children’s loss of culture or connection to their Indigenous roots. Their position was identical to that of SM.” The fact that both SM and Siksika Nation sought to adduce the same expert (Ms.

Ledoux) was noteworthy in this assessment. [ 51 ] The Provincial Court Judge noted that SM adduced significant evidence of the importance of maintaining the Children’s cultural connection in the Provincial Court Hearing, since this was a “central issue.” For example, SM called EM, an Elder of the Mosquito Grizzly Bear’s Head Lean Man First Nation, to testify. She provided an important perspective about cultural protection and identity. She testified to being raised practicing and celebrating Indigenous culture, beliefs and values.

She talked about the love and bonding with which she grew up, and how that love continues through to adulthood in a way that may not be understood outside Indigenous culture. She spoke to how the Children would suffer the loss of this upbringing and these cultural teachings, as well as how they will lose their identity and grow up feeling lost. While the Children may come to know they are from Mosquito Grizzly Bear’s Head Lean Man, they may question their acceptance in the band and develop a sense of rejection due to not being raised with the band.

She spoke to their need to know where they are from and the love she and the community have for their children. [ 52 ] SM also adduced other evidence of the importance of protecting and promoting cultural identity.

As such, the Provincial Court Judge found that Siksika Nation’s interest in the intervention was protected by SM, and that its intervention was unnecessary and its submissions would not be useful or different, or bring particular expertise. [ 53 ] While Siksika Nation’s perspective is not entirely identical to that of SM, it was sufficiently similar that the Provincial Court Judge’s finding that Siksika Nation did not bring a unique or different perspective or a particular expertise is supportable. [ 54 ] Siksika Nation also argues that its presence as an intervenor was necessary because at the end of the Director and SM’s submissions in the Provincial Court Hearing, the parties had not tendered the evidence that Siksika Nation wanted.

For example, the Director did not tender affidavit evidence from one of the Child and Family Services caseworkers. Determining after evidence is tendered that a party has not brought the evidence the intervenor would have wanted is not an appropriate basis to evaluate the Pedersen factors in question. This could promote derailing trials and frustrating their timely conclusion to the prejudice of other parties. [ 55 ] The Provincial Court Judge’s findings on the second, third, and fourth Pedersen factors is entitled to deference, and there is no

palpable and overriding error in her conclusion on the basis of the application before her and the evidence adduced. [ 56 ] The fifth Pedersen factor asks the court to consider whether the intervention will unduly delay the proceedings. Siksika Nation argues that the Provincial Court Judge placed undue weight on the issue of delay at the expense of other factors. [ 57 ] I disagree. The Provincial Court Judge considered each of the Pedersen factors and appropriately discussed the issue of delay in the circumstances.

Siksika Nation’s Application to Intervene arose on the fourth day of the Provincial Court Hearing (after the other parties had closed their cases) and would have significantly delayed the proceedings. If allowed, Siksika Nation wanted to provide submissions, evidence, and call expert witnesses. The other parties would have needed time to prepare, respond, and cross-examine these witnesses and potentially call rebuttal evidence.

The Director and Children’s counsel expressed concerns about the effect of further delay on the Children, noting that delay would affect the best interests of the Children, which is the paramount consideration. [ 58 ] Any decision by the Court must be made in the best interests of the child and the effect of delay in decision making is an important consideration: NJB (Re) , 2015 ABQB 597 at para 51 .

There is a presumption that delay in reaching a final determination is contrary to the best interests of the child, particularly for young children: Re LFF (Adoption) , 2003 ABQB 1066 at para 7 ; Alberta ( Child, Youth and Family Enhancement Act , Director v MK) , 2012 ABPC 216 at para 20 , citing YS (Re) , 2006 YKTC 49 at para 21 . This presumption must be weighed against other factors that could tilt the scales in favor of permitting further delay. [ 59 ] The CYFEA includes provisions specific to delay.

Although the CYFEA has been amended since the Provincial Court Hearing, the provisions on delay remain unchanged. Specifically, section 2(1)(

m) of the CYFEA (numbered section 2(1)(

o) at the time of the Provincial Court Hearing, but otherwise unchanged) states that: If a child is in need of intervention, a court, an Appeal Panel and all persons who exercise any authority or make any decision under this Act relating to the child must do so in the best interests of the child and must consider the following as well as any other relevant matter: [...] (

m) there should be no unreasonable delay in making or implementing a decision respecting the child. [ 60 ]

Section 58.1 (

f) of the CYFEA , which has not been amended since the Provincial Court Hearing, states that: A Court and all persons who exercise any authority to make any decision under this Act relating to the adoption of a child must do so in the best interests of the child, and must consider the following as well as any other relevant matter: [...] (

f) the effects on the child of a delay in decision-making. [ 61 ] Due to the nature and lateness of Siksika Nation’s application, the Provincial Court Judge did not find a sufficient basis to justify a further delay of this nature. Given this context, the delay would have been unreasonable and would be contrary to the best interests of the Children.

As such, the Provincial Court Judge did not put undue weight on the issue of delay given the circumstances, and in light of her findings on the other Pedersen factors. [ 62 ] The eighth Pedersen factor asks the court to consider whether the intervention will transform a court into a political arena. Siksika Nation argues that the Provincial Court Judge erroneously relied on an isolated statement made by Siksika Nation to determine that the intervention would transform the Court into a political arena.

Specifically, it argues that the Provincial Court Judge relied on the statement about “systemic persecution that has plagued generations of Indigenous Canadians.” Siksika Nation argues that this statement, taken in its entire context, is not political in nature.

Rather, it submits that this statement was merely intended to alert the Court of its role in accepting the contemporary social issue of the persecution of Indigenous peoples, and in adapting the common law accordingly to reflect the changing social, moral, and economic fabric of the country. [ 63 ] I do not find the Provincial Court Judge made her determination based only on one isolated statement. The Provincial Court Judge noted that Siksika Nation cited the over-representation of Indigenous children in the child welfare system at large and sought to call a politician to testify.

Ultimately, the Provincial Court Judge found that Siksika Nation’s submissions indicated they were looking to use the application as a pathway to address historical wrongs. [ 64 ] There is no palpable and overriding error in the Provincial Court Judge’s decision that Siksika Nation’s submissions and proposed evidence would or could tend to transform the Court into a political arena.

Further, even if there was a palpable and overriding error in respect of this factor, such a finding would not be sufficient to alter the overall determination that intervenor status should not be granted, based on her findings regarding the remaining Pedersen factors. No factor is determinative and the Pedersen factors are not a test. [ 65 ] In conclusion, the Provincial Court Judge did not err in denying Siksika Nation’s Application to Intervene in the Provincial Court Hearing.

The granting of intervenor status is highly discretionary and I do not find any palpable and overriding errors in the Provincial Court Judge’s findings, and Siksika Nation has not identified any extricable errors of law in the decision. [ 66 ] As such, Siksika Nation’s appeal of the Provincial Court Judge’s Intervenor Decision is dismissed. 5.2 Siksika Nation’s Applications on Appeal [ 67 ] In addition to appealing the Provincial Court Judge’s decision not to grant it intervenor status, Siksika Nation has brought an Originating Application to Intervene on SM’s appeal and a Fresh Evidence Application. [ 68 ] Siksika Nation filed two briefs for these applications.

Siksika Nation also filed a letter in advance of the hearing, attaching a copy of Bill C-92,

An Act Respecting First Nations, Inuit and Métis children, youth and families [Bill C-92], on which it intended to rely. Siksika Nation made lengthy oral submissions at the appeal hearing, including submissions regarding the private guardianship application, its rights to due process, the alleged impartiality of the Provincial Court Judge, and regarding the Provincial Court Judge’s

failure to apply judicial notice to the Sixties Scoop. Siksika Nation also made submissions on its fresh evidence application and how it would relate to SM’s appeal.

The extent to which I will consider these submissions and evidence as part of SM’s appeal will depend on whether I grant Siksika Nation’s Originating Application to Intervene on Appeal and its Fresh Evidence Application. [ 69 ] I consider the two applications separately below. 5.2.1 Siksika Nation’s Originating Application to Intervene in the Appeal of SM [ 70 ] Siksika Nation seeks intervenor status to make submissions and lead evidence in respect of: the importance of cultural safety for Indigenous children and its paramountcy; the unique significance of family to Indigenous communities; the long-term negative effects of removing Indigenous children from their culture and placing them with non-Indigenous families; and how the Court can adequately balance these considerations against the concept and evidence provided of attachment of the Children to the Foster Parents. [ 71 ] This judgment references First Nations when quoting directly from Siksika Nation’s submissions or when referring to specific Nations; otherwise, the term Indigenous is used. [ 72 ] The Court may grant intervenor status “subject to any terms and conditions and with the rights and privileges specified by the Court”: Alberta Rules of Court , Alta Reg 124/2010 , r 2.10.

Granting intervenor status is discretionary and ought to be exercised sparingly: Canadian Centre for Bio-Ethical Reform v Grande Prairie (City) , 2017 ABCA 280 at para 11 (citations omitted) [ Canadian Centre for Bio-Ethical Reform ]; see also Orphan Well at para 11 . [ 73 ] As addressed above, the Court applies a two-part test in determining whether to grant intervenor status. I must first determine the subject matter of the appeal.

Second, I must determine what interest, if any, the proposed intervenor has in it: Orphan Well at para 8 . [ 74 ] The subject matter of SM’s appeal involves whether there was a reasonable apprehension of bias based on the conduct of the Provincial Court Judge; whether the Provincial Court Judge erred in making her determination of the private guardianship of the Children, including whether she erred in prioritizing attachment theory over other factors in determining the best interests of the Children; and whether she improperly failed to take judicial notice of the impact of the Sixties Scoop. [ 75 ] Next, determining the intervenor’s interest in the matter of the appeal involves looking at whether the intervenor will be directly and significantly affected by the appeal’s outcome, and whether the intervenor will provide expertise or a fresh perspective on the subject matter that will be helpful in resolving the appeal: Orphan Well at para 8 .

The Court in Orphan Well clarified that it is not sufficient for a party to merely establish an affected interest, it must also provide fresh information or a fresh perspective: Orphan Well at para 9 . The Court expressed the concern that if all that was required was an affected interest, the number of potential intervenors would increase greatly, which could unduly delay the appeal process without a corresponding benefit: Orphan Well at para 9 . [ 76 ] The Pedersen factors are relevant considerations in determining whether the above test is satisfied.

Those factors are disjunctive, and no single factor is determinative; rather the Court weighs those factors in assessing whether intervenor status should be granted. [ 77 ] As Bill C-92 and the amendments to the CYFEA are not binding on this Court on this appeal, I examine the Pedersen factors for assistance in determining whether to grant Siksika Nation intervenor status and the scope of such intervention. For the reasons set out below, I grant Siksika Nation intervenor status on this appeal, albeit in a limited capacity. a.

The first Pedersen factor [ 78 ] The first Pedersen factor considers if the intervenor is directly affected by the appeal. [ 79 ] The words “directly affected” were recently interpreted in Hazkar Developments Inc v Cochrane (Town) , 2019 ABQB 552 [ Hazkar ], where this Court considered the statutory requirement to serve “directly affected” parties on a judicial review application. The Court concluded that there must be a restrictive

interpretation of “directly affected”, as “the legislature clearly intended to limit the number of persons who must be notified of judicial review applications”: Hazkar at para 45 .

The Court decided that area residents were “directly affected” by the outcome of the application because the proposed development could impact their use, enjoyment and value of their homes, and the safety of and quiet enjoyment by individual members of the neighbourhood: Hazkar at para 52 . [ 80 ] Similarly, this Court considered whether proposed intervenors on a judicial review application would be “specially or directly affected by the decision of the Court” in Suncor Energy Inc v Unifor, Local 707 A , 2014 ABQB 555 [ Suncor ].

In Suncor , the Court was asked to review a grievance arbitration on a random alcohol and drug testing policy. The Mining Association of Canada and Enform Canada sought leave to intervene. Both are non-profit organizations prioritizing and promoting workplace safety in the mining and mineral processing industry and the upstream oil and gas industry, respectively. The Court concluded at para 12: …I accept that the Applicants have a special and direct interest. Their concerns and mandates include workplace safety in a dangerous workplace.

The industries they represent and the associations involved include the Employer that will be before the Court, an oil sands employer.

While it may not be enough for an intervener to concern itself with the jurisprudential or precedential effect of a decision which directly affects them, if the implementation of the decision has direct ramifications for the Applicants’ members, surely they have a direct and special interest, not necessarily in the specific outcome of the case, but in the proper balancing test that will be applied to determine whether a random alcohol and drug testing is allowed in any Applicants’ workplace. [ 81 ] In Styles v Alberta Investment Management Corp , 2016 ABCA 218 , the Court noted that “the precedential value of a case does not constitute a direct interest such as to justify [intervenor] status”: at para 28. [ 82 ] The Foster Parents argue that Siksika Nation is not directly affected by the appeal, as it did not bring any applications regarding the Children in the three years before the Provincial Court Hearing, and has not proposed an alternative permanency plan.

The

Foster Parents characterize Siksika Nation’s interest as general, political, and similar to an interest held by all First Nations. [ 83 ] Siksika Nation argues it is directly affected by this appeal because the appeal relates to the placement of one of the Nation's children, despite that neither PKM nor URM is a member, and only URM is capable of being registered as a member of the Nation. Siksika Nation relies on Q(

N) Re , 2003 YKTC 35 , where the Court considered whether the Taku River Tlingit First Nation should be granted intervenor status in a matter involving an application by the biological mother to terminate a permanent care order over her child, who had been in care for three years. The Court stated that the First Nation had an interest in the proceedings because the child and his mother were members of the Nation.

The Court found the Taku River Tlingit First Nation had an interest in what happens to NQ and to his mother and in the overall administration of the child welfare program insofar as it may affect the members of the First Nation. Recognizing this, the Director conceded that the Nation should be granted intervenor status. The Court concluded: “I welcome the participation of the First Nation with respect to the real issue in the case – the future best interests of N.Q.”: Q(

N) Re at para 25. Taku River Tlingit First Nation was granted intervenor status with leave to attend hearings, make submissions, and to call and examine witnesses “respecting the role the First Nation might play in the future care of the child, N.Q.”: Q(

N) Re at para 26. [ 84 ] The decision in Q(

N) Re is distinguishable on its facts. It involved a mother seeking the return of her child. Both the mother and the child were members of the Taku River Tlingit First Nation, and they would have had access to any child welfare programming offered by the First Nation. The First Nation’s participation was vital to the credibility of any plan of care that the mother would have presented. In the case at bar, SM is a member of the Mosquito Grizzly Bear’s Head Lean Man First Nation in Saskatchewan and both Children are likely eligible for membership with this First Nation through their mother.

Neither Child is a member of Siksika Nation, although the parties acknowledge that URM is likely capable of being registered as a member through her biological father. PKM is not. Siksika Nation is not involved in or affected by the outcome of this case to the same extent as the Taku River Tlingit First Nation was in Q(

N) Re . [ 85 ] Siksika Nation also argues that any decisions made in respect of the Children directly affects it, as it has a “vested interest in the welfare of [its] citizens”. Specifically, Merlin Breaker, a member of the Siksika Nation, and the Director of Siksika Child and Family Services, stated in his Affidavit, filed in support of Siksika Nation’s Originating Application to Intervene on Appeal, that: ...all First Nations do have an absolute legal interest in decisions being made about our children, regardless of what Nation these children may be from.

I believe that history has shown that the various governments in Canada have consistently mistreated First Nations children and misunderstood not only the significance of our cultures to our identity and lifelong development, but also the differences between our Nations distinct cultures from one another and from that of the westernized cultures that government policies reflect. [ 86 ] As noted above, neither SM nor the Children are Siksika Nation members.

Also, as counsel for the Children pointed out, none of the proposed guardians were Siksika Nation members and no one from the Siksika Nation has ever applied for guardianship. This appeal concerns the best interests of two Children. It is not a policy reference, as was the case in Suncor . [ 87 ] I reject the assertion that any First Nation should be granted intervenor status in a decision being made about Indigenous children, regardless of what Nation the children are from.

There would be no appropriate limit to who could intervene in such cases, which may increase the likelihood of competing positions by those not directly affected and lead to undue delays.

The Mosquito Grizzly Bear’s Head Lean Man First Nation , to which SM and the Mother belong, is the First Nation that has the stronger argument of being directly affected by the outcome of this case, because both Children have the right to seek membership in that First Nation, and because if SM’s appeal is successful, her intent is for the Children to become members and reside there. [ 88 ] In contrast to Siksika Nation’s assertion that all First Nations have a direct interest in decisions being made about any Indigenous child, a more limited

interpretation of this legal interest is supported by the amendments to

section 53 of the CYFEA , which came into force on February 28, 2019, and the introduction of new federal legislation, Bill C-92, which is proclaimed in force on January 1, 2020. [ 89 ] Neither the amended provisions of the CYFEA nor Bill C-92 grant participation rights to any First Nation or Indigenous governing body or band. The amended CYFEA grants certain participation rights to the First Nations bands to which children are members, or are entitled to become members: ss 53(1.1), 53.1(1). I further note that pursuant to sections 53.1(2) and (3) of the CYFEA , the First Nation’s right to participate is limited to appearing with counsel and making representations, and only taking further

part in the proceedings if the Court grants leave and subject to whatever conditions the Court imposes. Further, this default entitlement does not apply if a First Nation receives appropriate notice but does not attend Court the first time the matter is heard. In such a case, it is not entitled to further notice of the proceedings. [ 90 ] Bill C-92 grants rights to Indigenous governing bodies to which the children belong.

Further, Bill C-92 mandates that the right of a First Nation to make representations may be exercised in pending matters “only if its exercise is consistent with the best interests of the child and is appropriate in the circumstances”: ss 13(b), 33. [ 91 ] I am not aware of a case interpreting these provisions in this context.

Had t he amended provisions of the CYFEA been applicable in this case, Siksika Nation may be entitled to appear and make representations to the Court with respect to a child entitled to become a member, which in this case would be for URM only (not PKM) by virtue of URM’s potential to be registered as a member; and it would only be entitled to take further

part in the proceedings with leave of the Court: ss 53(1.1), 53.1(2). Neither the CYFEA amendments nor Bill C-92 is applicable, however, to this case. Section 37(1) of Bill 22, An Act for Strong Families Building Stronger Communities, SA 2018 c 24 is a transitional provision. It says that the amendments to the CYFEA brought on by Bill 22’s sections 5, 6, 7, 8, or 9 do not apply to proceedings commenced but not fully disposed of prior to the date in which such amendment has come into force.

Section 6 of Bill 22 includes

section 53. [ 92 ] Based on the facts of this case, I find that Siksika Nation’s claim that it is directly affected by this appeal is tenuous with respect to URM (and not supportable with respect to PKM). On this basis, it could be justifiable to deny Siksika Nation’s application for intervenor status in accordance with Orphan Well . Nevertheless, given the changing legislative landscape, the policies behind these changes and the potential benefit of hearing additional Indigenous perspectives during the transition to the new statutory regime ,

although Siksika Nation is not directly affected, I will go on to consider the other elements of this analysis. b.

The second, third, and fourth Pedersen factors [ 93 ] The second, third, and fourth Pedersen factors consider whether the presence of the intervenor is necessary for the court to properly decide the matter; whether the intervenor’s submission will be useful and different or bring particular expertise to the subject matter of the appeal; and whether the intervenor’s interest in the proceedings will be fully protected by the other parties. [ 94 ] The Foster Parents argue that the proposed submissions and position of Siksika Nation are the same as SM.

They say that Siksika Nation’s interest is fully protected by SM. [ 95 ] In the affidavit of Merlin Breaker, filed in support of the Originating Application to Intervene on Appeal, Siksika Nation submits the following particulars regarding what they can contribute on appeal: We believe that [SM] will be able to speak to how she can protect these children and ensure that they grow and develop properly in their rich cultural heritage with mature and well-rounded identities.

However, the perspective we aim to provide is from our Nation as a whole and what the identities and involvement of all our peoples brings to our culture , and what the loss of our young children and their respective loss of identity and culture means to our nation, and our collective identity . We can also speak to the struggles of not only the individuals removed from their communities when they try to return as adults, but the hardships endured and committed efforts given by our Nation in striving to give these individuals back the identity that they have lost, or never had.

Additionally, a critical factor in the consideration of placing First Nations children is the development and assessment of a cultural plan.

As the custodians of our culture and heritage, and as a Nation that strives to ensure the protection and preservation of our heritage, I believe that we as a Nation are best situated to truly speak to the worth or adequacy of the cultural plan that was proposed by the non- Indigenous foster parents, and subsequently accepted by the Honourable Judge Cook-Stanhope. [ emphasis added ] [ 96 ] Siksika Nation is not offering a different perspective on the statutory and legal factors relevant to determining the best interests of the child.

Rather, it seeks to argue that those factors should be expanded to encompass the interests of the community to which a child may belong. I note instead the existing legislative recognition of relevant factors (such as

section 2 of the CYFEA addressing the importance of a child’s heritage, culture, spirituality and traditions ) and the legislative reforms that are currently in transition into law through both the recent amendments of the CYFEA and the introduction of Bill C-92. Those Acts set out the factors the Court should consider in the assessment of the best interests of the child, including multiple criteria to safeguard Indigenous identity, culture, heritage, spirituality, language and traditions.

They are structured in a child-centric assessment recognizing the importance of the impact of these guardianship decisions on the greater community of the respective Indigenous group, without laying on the Court the weight of attempting to address large-scale societal issues, instead of the child’s best interests in each case. [ 97 ] The struggles of individuals who are removed from their community and who try to return as adults, and the ongoing issues with identity were issues directly addressed by SM.

I recognize that Siksika Nation wishes to provide more extensive evidence on this point, but the position is not different from SM, just more. [ 98 ] Although I am not convinced Siksika Nation’s intervention is necessary for the resolution of this appeal, Siksika Nation could speak to the issue of the development and assessment of a cultural plan, and it could offer a somewhat different opinion or position than SM on that point. Having said this, its submissions on this topic were very limited.

Siksika Nation has also brought to the Court’s attention recent legislative changes that reflect revisions on broader policies relevant to the issues addressed in the present case. It can offer submissions on the application of these statutory revisions. [ 99 ] This factor does not weigh heavily in favor of granting intervenor status, and any such status would be granted with a limited scope.

The scope does not include submissions regarding the affect of the decision on the Nation as a whole, or the impact of the loss of its children and their respective loss of identity and culture to its Nation, or its collective identity. The issue before this Court is the best interests of the Children. c. The fifth Pedersen factor [ 100 ] The fifth Pedersen factor considers whether the intervention will unduly delay the proceedings. [ 101 ] The Siksika Nation has made written and oral submissions in this appeal, which include arguments on the substantive appeal brought by SM.

Siksika Nation also filed substantial material as proposed fresh evidence.

There is no undue delay with respect to its submissions, although the volume of material filed, particularly with respect to the Fresh Evidence application, has caused delay in the overall process, including rendering of this decision, as a result of the time required to review and address it. [ 102 ] There could be undue delay depending on what evidence is permitted to be filed, as procedural fairness must be considered for the parties who have not had an opportunity to file any responding evidence. [ 103 ] Siksika Nation’s intervention on its own does not necessarily unduly delay the proceedings; however, the Fresh Evidence Application has caused some delay and allowing any of the evidence in the appeal has further potential to do so. d.

The sixth Pedersen factor [ 104 ] The sixth Pedersen factor considers whether there is possible prejudice to the parties if the Court grants intervenor status. [ 105 ] I consider the potential concern that by granting intervenor status to any interested Nation at first instance on appeal, parties may be frustrated by the potential of a de facto re-hearing in any case dealing with Indigenous children, particularly where the intervenor is granted the right to introduce fresh evidence. The amendments to the CYFEA clearly attempt to address this concern by stipulating that

the right to participate is legislated only where the entitled band attends Court the first time the matter is heard (assuming it was properly served) to make submissions to the Court regarding the band’s participation in the proceedings: CYFEA , s 53.1(1)-(3).

If it did not participate at the first Court proceeding, on the standard test for intervention ( considering the Pedersen factors), the failure to attend at first instance would weigh significantly against subsequently granting such status due to the delay, and issues of frustrating expediency of the trial process and fairness to the other parties. [ 106 ] In the present case, Siksika Nation did not seek participation in the original trial, until well into the trial.

Had I been relying on the amended provisions of the CYFEA , assuming Siksika Nation had appropriate notice of the matter, its non-participation at the commencement of the trial would be a material factor weighing against granting leave to intervene. [ 107 ] At a minimum, the Fresh Evidence Application could result in prejudice to the parties, who have not had an opportunity to fully respond to the proposed evidence on the appeal. [ 108 ] This weighs against granting intervenor status. e.

The seventh Pedersen factor [ 109 ] The seventh Pedersen factor considers whether the intervention will widen the lis between the parties, meaning whether it will broaden the scope of the appeal. [ 110 ] In the case at bar, if the Siksika Nation was granted intervenor status on the broad basis it suggests, this would widen the lis between the parties.

For example, the submissions on the Sixties Scoop, the history of the Residential Schools System, Siksika Nation’s perspective as to what the loss of cultural identity means to its collective identity, and on the survival of its culture are not the issues before this Court.

The central issue is the best interests of the Children in the circumstances, and whether the Provincial Court Judge acted in a manner that gives rise to reasonable apprehension of bias. [ 111 ] This weighs against granting intervenor status; however, the potential issues this factor seeks to address can be mitigated by limiting the scope of the intervention. f. The eighth Pedersen factor [ 112 ] The eighth Pedersen factor considers whether the intervention will transform the Court into a political arena.

As noted, some of Siksika Nation’s proposed evidence and its arguments speak to broader political issues, such as the ramifications of the Sixties Scoop and the application of the recommendations to private guardianship applications in the Report of the Truth and Reconciliation Commission : Canada, Truth and Reconciliation Commission, The Final Report of the Truth and Reconciliation Commission, vol 5, Canada’s Residential Schools: The Legacy, Montreal: McGill-Queen’s University Press, 2015 [ Report of the TRC ]. These arguments have the potential to turn this Court into a political arena.

Nevertheless, any concerns that this factor points to can be addressed by placing appropriate restrictions on the scope of the intervention. [ 113 ] This weighs in favour of limiting the scope if intervenor status is granted. g. Conclusion on the Pedersen factors [ 114 ] In conclusion and taking into consideration all the Pedersen factors, Siksika Nation fails to satisfy the test for intervenor status. First, it has not shown it is directly affected by the decision relating to the Children.

Second, the narrow topics for which Siksika Nation may bring a unique or at least a broader perspective (including submissions on the pending legislative amendments) are not sufficiently material to overcome the potential prejudice to the parties if status is granted, and in particular, if fresh evidence is introduced. Further, some of Siksika Nation’s submissions spoke to broader political issues. [ 115 ] Having so found, I nevertheless consider the recent legislative changes and the policy positions behind them.

In this context, given these provisions have not yet been considered, and the Court may benefit from considering additional Indigenous perspectives during the transition to the new statutory regime, particularly to the extent it can contribute to the specific issues raised in this appeal, and further given the highly discretionary nature of a decision to grant intervenor status ( Canadian Centre for Bio-Ethical Reform at para 11 ), I exercise such discretion to grant Siksika Nation intervenor status on a limited basis. [ 116 ] I am not prepared to broaden the issue before me, which remains the best interests of the Children (including under the new legislation).

I grant Siksika Nation an opportunity to speak to the policy changes encompassed by the recent legislative amendments and the cultural plan for the Children. To the extent encompassed by these topics, it may also speak to the issues of what cultural identity means to Indigenous children, and on the importance of preserving and encouraging cultural identity for children placed in non- Indigenous homes. Siksika Nation has made written and oral submissions on these issues. 5.2.2.

Siksika Nation’s Fresh Evidence Application [ 117 ] As noted, Siksika Nation has also filed a Fresh Evidence Application seeking to adduce substantial and lengthy reports in the nature of expert opinion evidence, affidavits, and other documents such as the Report of the TRC.

The Court in Papachase Indian Band (Descendants of) v Canada (Attorney General) , 2005 ABCA 320 at para 3 cited Batchewana Indian Band v Canada (Minister of Indian and Northern Affairs) (1996), 199 NR (FCA), where the Federal Court of Appeal stated “an intervenor in an appellate court must take the case as she finds it and cannot, to the prejudice of the parties, argue new issues which require the introduction of fresh evidence.” The evidence filed by Siksika Nation is voluminous and covers an exceptional range of matters and issues, many of which go well beyond the scope of the original trial.

It is unusual and given the narrow scope I have granted it in its intervenor status, I would prima facie not grant it the right to introduce the fresh evidence that it has proposed. In my assessment of whether to grant intervenor status, I note the delay and prejudice to other parties that could be caused by allowing this evidence in, among other factors, which are

not outweighed by other considerations. [118] This ought to be the end of the evaluation. Nevertheless, given the circumstance of this case and the paramount consideration ofwhat is in the best interests of the Children, I have gone further and evaluated this evidence and assessed its admissibility, and ultimatelydetermined whether the Fresh Evidence Application should be granted for any or all the proposed evidence.

I do this as furtherconfirmation of my determination, and not to suggest that it is required in every (or any) other case in which a judge has grantedintervenor standing on a limited basis (either at initial instance or on appeal), particularly where the evidence proposed goes beyond thescope of the intervenor status granted or the scope of the central issues before the court. [119] Siksika Nation’s Fresh Evidence Application lists the following materials, which they seek to admit in the form of affidavitevidence and accompanying reports by: 1. Dr.

Peter Choate, Associate Professor at Mount Royal University in the Department of Child Studies and Clinical Work, consistingof: a. A report critiquing the Literature Review of Ms. Wotherspoon that had been accepted as expert evidence in Provincial Courthearing; and b. A report reviewing the oral evidence that was provided by Ms. Wotherspoon in her testimony at the Provincial Court hearing. 2. Dr. Raven Sinclair, Professor in the Faculty of Social Work at the University of Regina, consisting of: a. A report responding to Ms. Wotherspoon’s Literature Review and its validity to First Nations Children. 3.

Adam North Peigan, President of the Sixties Scoop Indigenous Society of Alberta, consisting of: a. Affidavit evidence regarding personal experience as a Sixties Scoop survivor. 4. Dr. Jeannine Carriere, a Professor in the School of Social Work at the University of Victoria, consisting of: a. A report looking at the validity of Ms. Wotherspoon’s evidence and Literature Review, and its application to First Nations Childrenin child protection matters. 5.

Thomas McMahon, former Executive Secretary for the Manitoba Aboriginal Justice Inquiry and former Executive Director andGeneral Legal Counsel for the Truth and Reconciliation Commission, consisting of: a. Affidavit evidence regarding the significance of cultural security for First Nations Children. 6. Krystal Panday, legal assistant at Mincher Koeman LLP, consisting of: a. Premiere Rachel Notley’s apology to survivors of the Sixties Scoop; b.

Disclosure from the Director of Child and Family Services (Alberta) relating to the involvement of the Director with the partiesafter the granting of the PGO on the Children; and c.

The Final Report of the Truth and Reconciliation Commission, vol 5, Canada’s Residential Schools: The Legacy. [120] Siksika Nation argues that this evidence was not put before the Provincial Court Judge because she denied its application tointervene at the Provincial Court Hearing and did not otherwise hear evidence relating to the importance of protecting Indigenouschildren’s exposure to culture; however, the evidence Siksika Nation listed in its Fresh Evidence Application differs greatly and goeswell beyond what it proposed before the Provincial Court Judge.

Siksika Nation also argues that this evidence is reliable and relevant asit outlines the great significance of cultural safety. Siksika Nation states it demonstrates the vast harms to children, families andcommunities that arise from First Nation children being raised in non-Indigenous households.

Siksika Nation argues that the evidencewould have affected the outcome of the Provincial Court Hearing. [121] The Supreme Court in Palmer v The Queen, (SCC), [1980] 1 SCR 759 at 775, 106 DLR (3d) 212 [Palmer]established the test for introducing fresh evidence on appeal: (1) the evidence should generally not be admitted if, by due diligence, itcould have been adduced at trial (2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issuein the trial; (3) the evidence must be credible in the sense that it is reasonably capable of belief; and (4) it must be such that if believed itcould reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [122] Siksika Nation argues that the Court should adopt an overall flexible approach to the Palmer test in this case and consider allcogent evidence bearing on the best interests of the Children, including “up-to-the minute social facts”: PT v Alberta, 2019 ABCA 158at 61; B(

R) v B(E), 2010 ABCA 229 at para 21; Brill v Brill, 2010 ABCA 229 at paras 18, 21; Alberta Public School Boards’Association v Alberta (Attorney General), 1998 ABCA 94 at para 34.

[ 123 ] I am prepared to adopt an overall flexible approach to the Palmer test in considering whether to admit the fresh evidence, since the main issue in this case is what is in the best interests of the Children. A flexible approach, however, does not fully displace the Palmer test. In PT v Alberta and Brill v Brill , the Alberta Court of Appeal adopted a flexible approach; however, the Court clarified that a flexible approach does not displace the requirements of relevance and materiality: PT v Alberta at para 61 .

Further, in both cases, the proposed fresh evidence was not admitted because it failed on the fourth prong of the Palmer test. [ 124 ] I now turn to the Palmer test. [ 125 ] The first part of the Palmer test asks if by due diligence, the evidence could have been adduced at trial. As noted by the Supreme Court , “[i]f the evidence was important, it ought to have been led at trial”: Public School Boards’ Assn of Alberta v Alberta (Attorney General) , 2000 SCC 2 at para 13 .

Parties are not authorized to “relitigate the trial by bringing in evidence that was either withheld or overlooked at the original hearing”: Public School Boards Association of Alberta at para 12. [ 126 ] If SM had exercised due diligence, she could have adduced the evidence now proposed by Siksika Nation at the Provincial Court Hearing with the exception of Premiere Rachel Notley’s apology to Sixties Scoop survivors, which occurred after the Provincial Court Hearing. [ 127 ] The proposed evidence is primarily in the nature of reports and affidavits speaking to the importance of culture and the harm caused by taking Indigenous children from their communities and placing them in non-Indigenous homes.

Some of the evidence is intended to inform the Court of the multi-generational impact of the Residential School System and the Sixties Scoop, and some of the evidence purports to counter Ms. Wotherspoon’s testimony on the importance of attachment. [ 128 ] Evidence seeking to inform the Court of the impact of Residential Schools and Sixties Scoop was available to SM at trial. The evidence did not arise during or after the Provincial Court Hearing and it does not constitute evidence of up-to-the minute social facts. [ 129 ] Evidence purporting to rebut Ms.

Wotherspoon’s testimony was also available to SM at the time of the Provincial Court Hearing. In fact, as noted above, SM made an application to add a witness, Ms. Ledoux, who would seek to rebut the evidence of Ms. Wotherspoon. SM’s application to add Ms. Ledoux, however, was denied specifically because she did not exercise due diligence in bringing that evidence forward. [ 130 ] As noted, SM’s application to add Ms. Ledoux arose part way through the Provincial Court Hearing and after the Director’s and the Foster Parents’ case was closed. Ms.

Ledoux was not listed on SM’s Trial Readiness Form and counsel for SM proposed a lengthy adjournment for Ms. Ledoux to meet with the Children and prepare reports. The adjournment request presumed that the Court and the Provincial Court Judge would have availability once Ms. Ledoux’s report was complete. The Provincial Court Judge denied this application due to its nature and the circumstances in which it arose. She found that it would be unfair to the parties to allow this adjournment – mid-trial - and add a witness, and that it would not be in the best interests of the Children to cause such a delay.

She was correct in so doing. [ 131 ] The Provincial Court Judge also found SM’s application failed on other factors: she found Ms. Ledoux would not provide new or different evidence, since the importance of the Children maintaining their connection with their biological family and Indigenous culture had been underscored by SM’s witnesses during the Provincial Court Hearing. SM’s witnesses included EM an Elder of the Mosquito Grizzly Bear’s Head Lean Man First Nation and maternal great aunt to the Children, ShM the biological daughter of SM, and LM the biological father of URM. [ 132 ] Ms.

Wotherspoon was not a surprise witness. All parties consented to Ms. Wotherspoon testifying. SM agreed to share the cost of hiring Ms. Wotherspoon to do a literature review on issues surrounding the effects on children of attachment disruption. SM received Ms. Wotherspoon’s CV in 2016. SM received the literature review three weeks in advance of trial. If SM was concerned about the literature review and its focus on attachment, she had time to request an adjournment to obtain evidence purporting to rebut Ms. Wotherspoon.

Instead, she waited until part-way through the Provincial Court Hearing to do so. [ 133 ] Similarly, all of the fresh evidence proposed by Siksika Nation (with the exception of Rachel Notley’s apology to survivors of the Sixties Scoop) could have been adduced by SM exercising due diligence. For these reasons, Siksika Nation’s Fresh Evidence Application fails on the first part of the Palmer test. Nevertheless, since I have adopted a flexible approach, I find the first

part is not determinative and I will consider the remaining parts of the Palmer test. [ 134 ] The second part of the Palmer test asks if the evidence is relevant. Since this evidence cannot be tested on appeal, I must determine whether the evidence is prima facie relevant: R v Levesque, 2000 SCC 47 at para 27 . This requires an examination of each piece of evidence separately. I have divided these into four categories, since Siksika Nation seeks to adduce evidence of different natures.

First, I have addressed the Disclosure from the Director of Child and Family Services (Alberta) relating to the involvement of the Director with the parties after the granting of the PGO over the Children. Second, I will look at the Report of the TRC. Third, I have addressed the proposed evidence of Adam North Peigan, Thomas McMahon, and the apology by Premiere Rachel Notley to survivors of the Sixties Scoop. Lastly, I have considered the proposed evidence in the nature of expert opinion evidence from Dr. Choate, Dr. Sinclair, and Dr. Carriere. a.

The Disclosure from the Director of Child and Family Services [ 135 ] This evidence documents the communications between the parties and the Director after the granting of the PGO, with respect to the Children. This evidence is not relevant to this case. The issues that Siksika Nation is looking to raise by submitting this document are not before this Court. It is not possible or necessary for me to consider what happened between the Director and the parties years ago. This would be an improper collateral attack on the long-ended child protection proceedings.

It is the needs and best interests of these Children at the time of the Provincial Court Hearing, and now at the time of this appeal, that must be given priority. In any event, this evidence would not have affected the result of the Provincial Court Hearing. As such, it would also fail on the fourth prong of the Palmer test. It is therefore not admissible.

b. The Report of the Truth and Reconciliation Commission [ 136 ] Siksika Nation provided volume 5 of the Report of the TRC.

This Report provides information about and perspectives on the history of Canada’s treatment of its Indigenous people, the multi-generational impacts of this history, and personal accounts of how this history has affected Indigenous peoples. [ 137 ] While many parts of volume 5 of the Report of the TRC are not relevant to the present application (including the portions that deal with services provided before and while the children are brought into care, stages of the process prior to the private guardianship phase), there are a few portions of it that speak to topics connected to the issues raised by this case.

For example, this Report calls upon the federal government to enact Indigenous child welfare legislation that establishes national standards for child apprehension and custody cases and includes principles that, amongst other things: • Require all child welfare agencies and courts to take the residential school legacy into account in their decision making; and • Establish, as an important priority, a requirement that placements of Aboriginal children into temporary and permanent care be culturally appropriate. [ 138 ] There are limits to how a report of this scope and nature can properly be admitted and considered in the context of a private guardianship application. [ 139 ] Further, the elements of the Report of the TRC relevant to private guardianship not already incorporated in existing legislation have been captured by the recent legislative changes by both the provincial and federal governments.

At the federal level, with Bill C-92 and at the provincial level, with the amended CYFEA , these recent changes to child and family legislation reflect the portions of the Report of the TRC’s proposed actions relevant to the provision of child and family services , including child apprehension and custody cases .

Future courts can rely on this legislation as applicable rather than assessing whether and how to import relevant portions of the report in any case before them. [ 140 ] The elements of the Report of the TRC that are now reflected in Bill C-92 and the amendments to the CYFEA may be relevant to private guardianship applications; however, for the reasons that follow, I do not believe the report would have affected the result of the Provincial Court Hearing based on the circumstances of this case. [ 141 ] In oral submissions on appeal, Mr.

Callioux who was counsel for the Children stated that the central issue is the best interests of these Children, not of the entirety of Indigenous children, and I agree. I am being asked to review the Provincial Court Judge’s decision to grant the Foster Parents private guardianship application.

The heart of this appeal is determining whether the Provincial Court Judge was correct in deciding what would be in the best interests of the Children taking into consideration all the circumstances of this case. [ 142 ] The Director apprehended the Children at birth by consent of their biological parents, and placed them with the Foster Parents. These Children have not been moved between foster homes and youth shelters. The Foster Parents have cared for the Children consistently since birth, and now for four and five years, and are seeking to be permanent guardians.

The Children have lived with the Foster Parents their entire life and this is the only life they know. [ 143 ] The Provincial Court Judge considered as an important priority a culturally appropriate permanent placement for the Children. She fram

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