CLR v KTC Child and Family Services (Director), 2019 ABQB 986

Court of Queen’s Bench of Alberta Citation: CLR v KTC Child and Family Services (Director), 2019 ABQB 986 Date: 20191220 Docket: FL03 49039 Registry: Edmonton Between: CLR and CJR Applicant - and - Director, KTC Child and Family Services Respondent - and - CL-N and LN Respondents and In the Matter of an Application to Appoint a Guardian under

section 23 of the Family Law Act , SA 2003 c F-4.5 and In the Matter of an Application to Terminate the Guardianship of the Director and to Appoint a Guardian under

section 52 of the Child, Youth and Family Enhancement Act , RSA 2000 c C-12

And in the Matter of: DL, born December 2010 _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice W.N.

Renke _______________________________________________________ This is an edited version of an oral decision. [ 1 ] This trial concerned two competing applications for guardianship of 9-year old boy, DL, who has been the subject of a Permanent Guardianship Order under the Child, Youth and Family Enhancement Act ( CYFEA ). [ 2 ] The former foster parents of DL (the Foster Parents) have applied under the Family Law Act ( FLA ) for guardianship and to terminate the Director’s guardianship under the PGO.

The Director of KTC Child and Family Services (KTC CFS) has applied under the CYFEA to terminate her guardianship and to have the paternal grandparents of DL (the Grandparents) appointed as the guardians of DL. [ 3 ] Both parents of DL are Cree. [ 4 ] DL lived most of his first 4 ½ years with the Foster Parents.

He has lived for the last 4 years with his Grandparents at Loon River, in the Loon River First Nation in Alberta. [ 5 ] I will consider some legal issues bearing on the applications, the background to the applications, the suitability of the proposed guardians, and whether it is in the best interests of DL for the Foster Parents or the Grandparents to be appointed as his guardians. Table of Contents I. Law .. 4 A. Legislative Amendments . 4 B. FLA Application after a PGO .. 5 C. Director’s Consent 5 D. Priority of Applications . 5 II. Background . 5 A. Facts . 5 B. Trial 7 III.

Suitability and Statutory Prerequisites of the Proposed Guardians . 7 A. Procedure . 7 B. Foster Parents . 8 1. Statutory Prerequisites . 8 2. Suitability . 8

C. Grandparents . 10 1. Statutory Prerequisites . 10 2. Suitability Assessment 12 IV. Best Interests of DL .. 14 A. Wrongful Removal and DL’s Present Best Interests . 15 B. Child’s Views and Preferences . 16 C. Special Needs . 18 D. Others . 18 1. The Mother and DN .. 18 2. The Father 19 3. Siblings . 20 4. Friends . 21 5. Relatives . 21 6. School 21 7. Extracurricular Activities . 21 E. Culture . 22 1. Failing to Respect DL’s Indigenous Heritage . 22 2. Compensatory Resources . 23 3. Living or Honouring Cree Culture . 23 F. Psychological and Emotional Needs . 25 1. DL’s Early Life . 25 2. DL’s Transition . 26 3.

DL’s New Life . 27 4. DL’s New Transition? . 27 V. Conclusion . 28 I. Law [ 6 ] Some legal issues bearing on the applications are as follows. A. Legislative Amendments [ 7 ] There was a suggestion in opening statements that the Foster Parents’ application was not properly brought under the FLA . [ 8 ] It is true that FLA s. 23(5.1) currently provides that

(5.1) If a child is in the custody of a director under the Child, Youth and Family Enhancement Act or is the subject of a temporary guardianship order or a permanent guardianship agreement or order under the Child, Youth and Family Enhancement Act , a person may not apply to be appointed a guardian of the child under this Act. The corresponding provision of the CYFEA is s. 52(1.01) currently provides that

(1.01) Notwithstanding any other enactment, a person may not apply to any court to be appointed as a guardian of a child who is in the custody of a director, or is the subject of a temporary guardianship order or a permanent guardianship agreement or order, except under

this Act. These provisions were added to the FLA and CYFEA by ss. 6 and 5 respectively of An Act for Strong Families Building Stronger Communities , SA 2018 c. 24, s. 36 . This Act, however, contained transitional provisions in s. 37: 37(1) Notwithstanding the coming into force of an amendment to the Child, Youth and Family Enhancement Act enacted by

section 5, 6, 7, 8 or 9 of this Act, any proceeding commenced but not fully disposed of under the Child, Youth and Family Enhancement Act or another enactment before the coming into force of that amendment is not affected by that amendment and the proceeding shall be continued and disposed of as though that amendment had not come into force.

(2) Notwithstanding the coming into force of the amendment to the Family Law Act enacted by

section 36 of this Act, any proceeding commenced but not fully disposed of under the Family Law Act before the coming into force of that amendment is not affected by that amendment and the proceeding shall be continued and disposed of as though that amendment had not come into force. Hence, because of the transitional provisions, neither FLA s. 23(5.1) nor CYFEA s. 52(1.01) bars the Foster Parents’ application. B.

FLA Application after a PGO [ 9 ] In NN v Alberta (Director of Child Welfare) , 2009 ABQB 224 at paras 23-25 , Justice Germain held that a FLA guardianship application may proceed even though a PGO has been granted; see GL v NAH , 2012 ABQB 347 , Mandersheid J at para 32, leave app denied (with reasons), 2012 ABCA 247 , Watson JA. (I note that at para 23 of NN , Justice Germain wrote “the legislature had ample opportunity to exclude the FLA from applying where temporary or permanent guardianship orders in favor of the Director existed, if it wished to do so.” As indicated above, the Legislature has now taken this step.) C.

Director’s Consent [ 10 ] The Director supports the Grandparents’ application but does not consent to the foster parents’ application. Justice Mandersheid recognized in GL v NAH (QB) at para 33 that [33] … under s. 24(1) (

a) of the FLA , a judge cannot make a guardianship order for a child in the permanent guardianship of the Director without the Director’s consent. The Director’s consent can be dispensed with under s. 24(2), but only if there are good and sufficient reasons for doing so. D. Priority of Applications [ 11 ] I have proceeded on the basis that neither guardianship application has priority over the other. I am not required to determine the foster parents’ application before the Director’s application or vice versa : see GL v NAH (QB) at para 38.

As will be discussed more fully below, I will consider individually whether each set of proposed guardians is “suitable” and whether the applications meet statutory criteria, then address the best interests of DL. II. Background A. Facts [ 12 ] ML, DL’s mother (the Mother), is a member of the Lubicon Lake Band. AL, DL’s father (the Father), is a member of the Loon River First Nation. [ 13 ] DL was born in late 2010. He was premature, born at 26 weeks gestation. He weighed 8 lbs. He was born in Saskatchewan (according to the Mother, in Saskatoon), then moved to hospitals in Edmonton and Grande Prairie.

The Mother struggled with addictions and responsibilities for other children. She was incarcerated during part of DL’s hospitalization. On release, she failed to attend the hospital or arrange for family members to assist her with DL. During this period, the Mother and the Father were separated. DL was apprehended by the Director under the CYFEA . [ 14 ] On March 23, 2011, the Director placed DL into the foster care of the Foster Parents, CLR and CJR (respectively the Foster Mother and Foster Father). They live on a farm about 20 minutes from Dixonville, Alberta, between Peace River and Manning.

They came to the Grande Prairie hospital and drove DL home. He cried the whole way. [ 15 ] The Foster Mother testified that because the Mother was addicted to drugs, specifically oxycontin, DL went through withdrawal. DL had a pit in the roof of his mouth. He required a special nipple on bottles and did not go on solid food until he was 8 months old. He had “sensory issues” and did not like loud noise. He had a partial retinal detachment. He had sleep apneia.

The Foster Mother testified to other medical difficulties experienced by DL. [ 16 ] Following a series of Temporary Guardianship Orders, a Permanent Guardianship Order was granted to the Director respecting DL on October 18, 2012 (the PGO). [ 17 ] Authority respecting DL passed from Region 8, Northwest Alberta, Child and Family Services (Peace River CFS) to KTC

CFS in, it appears, 2014. [ 18 ] Prior to KTC CFS taking over guardianship of DL, the Foster Parents had been approved for guardianship of DL. After KTC CFS took over guardianship, this application was put “on hold.” KTC CFS, though, maintained the Foster Parents as the home for DL. KTC CFS indicated that it would proceed with the Foster Parents being appointed guardians of DL. The Mother approved of the Foster Parents as guardians. [ 19 ] Complications arose between the Foster Parents and KTC CFS, relating to circumstances surrounding EW, another child in the care of the Foster Parents.

EW’s mother was DL’s mother’s cousin. [ 20 ] On April 28, 2015, that is, when DL was about 4 ½ and after he had been living with the Foster Parents for a little over 4 years, DL was removed from the Foster Parents’ care. While I will return to this below, I note now that this was not for cause. (There was some indication in the evidence that the removal was on April 30. Two days does not make a difference.) [ 21 ] Over the next 6 months, DL moved through three placements, including a placement with the Father, his then partner, and the children of that relationship.

This placement lasted a little less than a month.

This placement and the preceding placement were at Loon River, in Loon River First Nation, Alberta. [ 22 ] In either late September or early October 2015 (September 29, 2015 or October 5, 2015 at different points in the evidence), DL was placed with the Grandparents CL-N and LN (respectively the Grandmother and the Grandfather) in Loon River. [ 23 ] On May 12, 2015, supplemented by ( inter alia ) applications on April 2, 2016 and December 20, 2016, the Foster Parents filed a Claim under the FLA seeking guardianship and parenting of DL and termination of the guardianship of the Director of KTC CFS for DL.

The Mother supported the Foster Parents’ application. The Director filed a response under the FLA opposing the relief sought by the Foster Parents. [ 24 ] On November 30, 2015, the Director filed a Notice and Application for a Private Guardianship Order respecting DL under the CYFEA . The Director applied on behalf of the Grandparents, seeking the appointment of the Grandparents as guardians of DL and for the termination of the Director’s guardianship of DL. [ 25 ] In 2015, the Foster Parents saw DL for only brief periods, totalling about 4-6 hours.

By May 2016 a court order was in place providing specified contact time for the Foster Parents with DL. [ 26 ] By a Consent Order of Justice Ouellette of August 8, 2017, the Foster Parents’ and Director’s applications were set to be tried together in November 2019. [ 27 ] I note that the Foster Parents’ original FLA application had also concerned EW. EW too was removed from the Foster Parents’ care by KTC CFS. A separate trial was held respecting guardianship of EW in 2016. On November 10, 2016, Justice Clackson terminated KTC CFS’s guardianship of EW and appointed the Foster Parents as EW’s guardians.

EW continues to reside with the Foster Parents. B. Trial [ 28 ] Thirteen witnesses testified.

By way of very brief introduction, these were as called by the Foster Parents: • the Foster Mother and the Foster Father • the Mother • the Mother’s daughter DN • Sabrina Ragan, who was qualified as an expert in child development and play therapy including the treatment of trauma • Michael Laboucan, who was a transporter for KTC CFS, and drove DL many times over 3 years for (e.g.) therapy and visits to the Foster Parents • Barbara Komarnicki, a case work and family supervisor with Peace River CFS • Grand Chief Arthur Noskey, former Chief of Loon River First Nation and Grand Chief of Treaty 8 First Nations as called by the Director : • Ann Nipshank, Home Assessor, KTC CFS as called by the Grandparents : • Jacqueline Koe, DL’s first grade teacher • the Grandmother and the Grandfather • DDL, daughter-in-law and neighbour of the Grandparents, mother of DL’s best friend

• the Father. III. Suitability and Statutory Prerequisites of the Proposed Guardians A. Procedure [ 29 ] Following RW v Alberta ( Child, Youth and Family Enhancement Act , Director) , 2011 ABCA 139 at paras 33 and 34 and DPN v Toews , 2013 ABQB 445 , Wakeling J, as he then was, I will begin by assessing the suitability of each set of proposed guardians, without comparing their parenting skills. I’ll also consider whether the statutory prerequisites for their applications have been satisfied. B. Foster Parents 1. Statutory Prerequisites [ 30 ] FLA s. 23(1) (

a) provides that 23(1) The court may, on application by a person who (

a) is an adult and has had the care and control of a child for a period of more than 6 months … make an order appointing the person as a guardian of the child. Subsection 23(3) provides that

(3) The court on hearing an application for a guardianship order … may require the applicant to provide the court with a report prepared by a qualified person respecting, whether it is in the best interests of the child that the applicant be appointed as a guardian of the child …. [ 31 ] The Foster Parents are adults who have had care and control of DL for a period of more than 6 months, satisfying s. 23(1) (a). [ 32 ] The Foster Parents’ application was not accompanied by a recent home study, as contemplated by s. 23(3).

Director’s counsel stated that information was required about what was going on in the Foster Parent’s home, about other children in their home, and about whether any children have high needs (particularly if they are older children). The Foster Parents responded that an addendum to their 2009 Home Study was provided in 2014 to support guardianship of DL. Further, this matter has been in case management for four years and the Director has had ample opportunity to insist that a new home study be done. [ 33 ] The home study report under s. 23(3) is discretionary.

The trial has given the Director the opportunity to ask any questions that need answering. I do not require a new home study from the Foster Parents. 2. Suitability [ 34 ] The Foster Parents’ application is under FLA s. 23 . (

a) Statutory Provisions [ 35 ] Subsection 23(3) provides that 23(3) The court on hearing an application for a guardianship order shall consider … whether it is in the best interests of the child that the applicant be appointed as a guardian of the child, including whether the proposed guardian (

a) is suitable as a guardian, and (

b) has the ability and is willing to exercise the powers, responsibilities and entitlements of guardianship in respect of the child. [ 36 ] In DPN v Toews , Justice Wakeling identified “three queries” in s. 23(3) that must be asked: • will the applicant be a “suitable” guardian? • does the applicant have the “ability” to exercise the powers, responsibilities and entitlements of guardianship in respect of the child? • is the applicant willing to assume the powers, responsibilities and entitlements of a guardian? [ 37 ] “Suitability” concerns whether an applicant has the basic, fundamental or core skills and traits a guardian must have.

These include the responsibilities set out in s. 21(5): 21(5) Except where otherwise limited by law, including a parenting order, each guardian has the following responsibilities in respect of the child:

(

a) to nurture the child’s physical, psychological and emotional development and to guide the child towards independent adulthood; (

b) to ensure the child has the necessaries of life, including medical care, food, clothing and shelter; the list of powers in s. 21(6); and the requirement in s. 21(7) that the

(7) A guardian who exercises any of the powers referred to in subsection (6) shall do so in a manner consistent with the evolving capacity of the child: at paras 110-111. [ 38 ] The “ability” query overlaps with the suitability query. Justice Wakeling wrote at para 114 that [114] A review of s. 21 of the Act suggests that an applicant must have some interpersonal, communication, nurturing and life skills, access to financial resources, along with a modicum of common sense to handle the typical challenges which confront a person responsible for raising a child.

Persons who do not have these traits – those who are immature, selfish, troubled by anger management issues or addictions – would make poor guardians. A person must also have access to sufficient resources – usually a regular job paying a decent wage – to ensure that any child in her care has the “necessaries of life, including medical care, food, clothing and shelter”, the standard incorporated in s. 21(5)(

b) of the Act. [ 39 ] “Willingness” concerns the assessment of whether the applicant is “fully committed” to the “major undertaking” of serving as a guardian. (

b) Suitability Assessment [ 40 ] The Foster Parents manifestly satisfy the three queries. [ 41 ] The Foster Parents have cared for over 23 foster children over about 9 years. [ 42 ] They have taken some 75 courses. [ 43 ] They are a level two home, which is the highest foster care level without specialization. They are licenced for 2 to as many as 6 children. [ 44 ] Despite the removal of DL (and EW) from their care, Peace River CFS did not remove their children from the Foster Parents’ care. [ 45 ] The Foster Parents have no health issues precluding parenting.

The Foster Father is 57 and the Foster Mother is 52. [ 46 ] No issue was raised respecting the Foster Parents’ economic resources for caring for DL. [ 47 ] The Foster Parents are certainly fully committed to serving as DL’s guardian. They know what work is entailed and they have pressed the guardianship issue since 2015. [ 48 ] Ms. Komarnicki testified that the Foster Parents have been one of her office’s “go-to foster parents” for several years. They are good advocates and strong parents. [ 49 ] The Foster Parents’ location is suitable for raising DL. The Foster Parents live on a farm outside Dixonville.

Dixonville has a population of about 108 people. It has a store, school, community hall, skating rink, firehall, playground, and baseball diamond. It is relatively close to Peace River. The school population, according to the Foster Mother, is a mix of First Nations, Métis, and non- aboriginal children, with more aboriginal than non-aboriginal children. Special needs programs are available at nearby Holy Family School in Grimshaw. (

c) Issues [ 50 ] The only significant suitability issues raised respecting the Foster Parents was the Foster Mother’s posting of a photograph of DL on Facebook, which was claimed to have rendered DL identifiable. Some text she posted as well relating to the litigation was alleged to show that the Foster Parents were not putting the interests of DL first but were pursuing their own interests.

They were on a “crusade” and they had formulated an “idealized view of the child.” [ 51 ] The Foster Mother defended the photo post on the grounds that DL was not identifiable and the post was available only to a limited number of individuals who knew her and DL. She claimed that the post did not violate any CFS policy. [ 52 ] In my view, it would have been better not to have posted the photo to have avoided any risk of impropriety. Further, it would have been better not to have put comments in any way relating to family litigation on Facebook.

Family litigation is a matter for judicial process not social media comment. However, I view these acts as only mild errors of judgment, typical both of Facebook use and family litigation. Suitability does not require perfection and these mistakes, if mistakes they are, do not overshadow the Foster Parents’ evident parenting skills. C. Grandparents [ 53 ] The Grandparents’ application was made on their behalf by the Director under s. 52(2) of the CYFEA . 1. Statutory Prerequisites

[ 54 ]

Section 52 provides as follows: 52(1) Any adult may apply to the Court in the prescribed form for a private guardianship order in respect of a child who is in the custody of a director or is the subject of a temporary guardianship order or a permanent guardianship agreement or order ….

(1.1) An application under subsection (1) must include a home study report in the form required in the regulations prepared by a qualified person respecting (

a) the suitability of the applicant as a guardian, (

b) the ability and willingness of the applicant to assume the responsibility of a guardian with respect to the child, and (

c) whether it is in the best interests of the child that the applicant be appointed as a guardian of the child.

(1.2) If the child is the subject of a permanent guardianship agreement or order, the report required under subsection (1.1) must be prepared by a director.

(1.3) If an applicant has reason to believe that the child is an Indigenous child, the application under subsection (1) must include a plan, made in accordance with the regulations, that addresses how the child’s Indigenous identity, culture, heritage, spirituality, language and traditions will be respected, supported and preserved.

(2) A director may, on behalf of an applicant, make an application under subsection (1) if (

a) the applicant consents in writing, and (

b) the director is satisfied that it is in the best interests of the child for the child to be placed under the guardianship of the applicant. Under s. 56, 56(1) If the Court is satisfied that (

a) the applicant is able and willing to assume the responsibility of a guardian toward the child, (

b) it is in the best interests of the child, and (

c) the child has been in the continuous care of the applicant for a period of at least 3 months immediately prior to the hearing, the Court may make a private guardianship order appointing the applicant as a guardian of the child.

(1.01) If it is satisfied that it is in the best interests of the child to do so, the Court may waive the requirement in subsection (1)(c).

(1.1) On making an order under subsection (1), the Court may include terms respecting custody of and contact with the child.

(1.2) On making an order under subsection (1) appointing a guardian of an Indigenous child, the Court shall advise the guardian of the guardian’s obligations under

section 57.01. [ 55 ] DL has been in the continuous care of the Grandparents for at least 3 months prior to the hearing, so s. 56(1)(

c) is satisfied. [ 56 ] Counsel for the Foster Parents raised the issue of whether a Home Assessment Report in the form required by the regulations had been provided, as contemplated by s. 52(1.1). The Home Assessment Report in question was one at least partially completed on September 3, 2019. Counsel argued that the document was not signed by a supervisor, medical information had not been provided, and a safe environment assessment was not included. The cultural plan was also not attached.

Under the Child, Youth and Family Enhancement Regulation , a home study for private guardianship must “provide information under each heading below.” Unlike FLA s. 23, the home study provision is mandatory. There is no provision permitting waiver, as under s. 56(1.01). The report writer, Ms. Nipshank, testified that the report was final, valid, and approved, but that testimony by itself did not satisfy the concerns raised. [ 57 ] A Home Assessment Report that was signed and contained a cultural plan and a safe environment assessment was filed in 2015 to support the Director’s application.

Medicals, though, were not provided with this report either. I note that Form 8 does refer to “health as supported by medical.” [ 58 ] I am aware that the Grandmother testified that the medicals have been done but have not been turned in yet. She did not know where the cultural plan is. She said she had finished the safe work assessment. [ 59 ] I did not receive argument from the Director on whether I have jurisdiction to waive or, in the circumstances, ignore the deficiencies of the September 3, 2019 Home Assessment Report.

I will return to this issue below. [ 60 ] I am proceeding on the basis that the purpose of the report is to ensure that the Court has the information it needs to assess an application. That purpose has been served, at least in large part, by trial and the examination and cross-examination of the Grandparents and collateral witnesses. I am not left without information on relevant points. I am left without information statute requires to have been provided. [ 61 ] I note that s. 52(1.2) requires that a report be prepared by a director.

I received no argument on this point so I will consider both reports to have been prepared by delegees of a director. 2. Suitability Assessment

[ 62 ] Paragraph 56(1)(

a) refers to an applicant who is “able and willing to assume the responsibility of a guardian toward the child.” [ 63 ] This language imports, in my opinion, the same approach and assessment as outlined by Justice Wakeling in DPN v Toews , except that CYFEA “ability” encompasses both FLA “suitability” and “ability”. (

a) Willingness [ 64 ] The Grandparents have raised children. The Grandmother has been a private guardian in the past, respecting CN. The Grandparents have raised DL for 4 years. They have the requisite commitment to serve as guardians. (

b) Ability [ 65 ] The Grandparents raised their own four children and they have assisted in raising other children. The Grandmother became guardian for CN. She helps looks after CN’s son, GN. The Grandparents raised a granddaughter of Grand Chief Noskey. The Grandparents are raising DL’s sisters. The Grandmother had a sister who asked the Grandmother to look after her children so she could deal with personal issues. The Grandmother raised the children until her sister was able to take them back. [ 66 ] Ms.

Koe commented on how DL attended school clean, with his hair cut, always “well put together.” [ 67 ] The Grandparents are well-known and respected in their community. Grand Chief Noskey confirmed that he would not hesitate to put his children with them. [ 68 ] No alcohol or non-prescription drugs are in their house. [ 69 ] Their house, as attested by Grand Chief Noskey and DDL, is well kept. [ 70 ] The Grandmother has no health issues. She has been seen playing on a trampoline by DDL. She walks trap lines.

The Grandparents’ home is a bilevel, and she is constantly going up and down stairs cleaning. [ 71 ] The Grandfather has high blood pressure but it is kept under control with medication. [ 72 ] The Grandfather is 66. The Grandmother just turned 67. This puts them at about 10 years older than the Foster Father and 15 years older than the Foster Mother. On the evidence, there is no reason to predict that they do not have many more years before them.

As Director’s counsel submitted, they are not old and decrepit. [ 73 ] There was reference in the latest Home Assessment Report to a link between the Grandfather and a child welfare incident from 16 years ago. The Grandfather denies that this has to do with him. I note that in the region where the Grandparents live there are many individuals with similar names. It is reasonably possible that someone with a similar name was involved and not him.

I accept his denial. [ 74 ] The latest Home Assessment Report indicates that the Grandparents have completed five courses. [ 75 ] The Grandfather continues to work with Loon River Trucking. He now is a supervisor rather than a driver so earns less than while driving, but there was no suggestion that his income is not sufficient to permit the Grandparents to care for DL. [ 76 ] The Grandparents’ location is suitable for raising DL. Loon River is a community of about 680 people. It has a health centre, school, and fire department. A physician visits once a week.

Some mental health services are available through the school. The school has a dental hygienist. A dentist is brought into the community. The Band has a program of boarding out senior high students who require (in particular) trades programs not available in Loon River. Loon River is about 160 kms from each of Peace River, High Prairie, and Slave Lake. There are community events, such as Treaty Days. (

c) Issues [ 77 ] Three main issues concerning the Grandparents’ ability and willingness to serve as guardians were raised by the Foster Parents. [ 78 ] First, both Foster Parents claimed that the Grandfather did not love DL, that he has no bond with DL.

He does not show that he loves and cares for DL, said the Foster Father, although he followed this by saying “their way is different than my way.” When asked whether he thinks that the Grandparents love DL, the Foster Father said that he thinks the Grandmother shows the best of her ability but respecting the Grandfather, “I do not see the affection.” They don’t show affection, as he thinks they ought to. If the Grandfather lacked love for DL, he would not have the proper motivation or commitment to be DL’s guardian. [ 79 ] But in my opinion, the Foster Parents’ opinion rests on a severe misunderstanding.

The Grandfather is reserved. The Grandmother is reserved. The Father is reserved. Mr. Laboucan, at least in his testimony in chief, was reserved. Being demonstrative or exuberant is a personal trait. It is wrong to expect others to express emotion in one’s own way, on pain of judgment that they don’t have the emotion at all. What I observed in the evidence was that the Grandfather cared deeply for DL in his own quiet way. His way is to be a steady anchor. [ 80 ] Second, much attention was given to the car seat incident.

The Grandparents drove DL and EW to a mall in Peace River from Loon River without a car seat for DL. The Foster Parents saw the lack of car seat. The Foster Mother called a Social Service Crisis line for “direction.” She was told, she said, to call the RCMP, so she did. The RCMP attended. Apparently, the Foster Mother recorded a video of aspects of the incident. The RCMP officer spoke to the Grandparents. The Grandparents then bought a car seat.

[81] The Grandmother provided an explanation. She had a borrowed a car seat and put it in her car, but on the morning in questionher son borrowed that car and drove off with the car seat. She did not want to be late for the drop-off in Peace River, so they drovewithout the car seat. It was still winter, but the roads were good. [82] Driving DL without a car seat was wrong. It was risky, even if the roads looked good. It was a mistake. The Grandmothershould have thought the risks through, weighing the potential for serious injury against what might be the ire of the Foster Parents.

Therewas no evidence, though, that the Grandparents have subsequently put DL at any sort of similar risk. [83] Third, DL had an abscessed tooth that was not treated in a timely way. Treatment only occurred after the Foster Motherphotographed the tooth and sent the photo to the Minister for Social Services. This should have been treated sooner. Strangely, the dentalhygienist at DL’s school apparently missed the tooth too. A difficulty was that at this time, in early to mid-2017, DL was in a period inwhich he was not communicative. Mr.

Laboucan had noticed DL holding his lip and when he inquired about whether his tooth hurt, DLtold him no and pointed at his lip. Yet if there were indications of pain that Mr. Laboucan could notice, presumably there wereindications that the Grandparents could have noticed. And if they noticed, they should have followed up. Again, there have been nohealth-related recurrences of this sort of issue. [84] Neither the car seat nor the tooth incidents show that the Grandparents lack the ability and willingness to serve as DL’sguardians. As I noted respecting the Foster Mother, perfection is not demanded.

Of course, I should not be too quick to excuse when achild’s health was put at risk and when, as with the tooth, he was in pain. On the evidence, however, what I see is that the Grandparentshave been looking after DL and his sisters. There is no pattern of indifferent conduct. They are suitable guardians for DL. IV. Best Interests of DL [85] Both FLA s. 23(3) and CYFEA s. 56(1) require a court to be satisfied that the appointment of an applicant as a guardian be inthe best interests of the child.

What is meant by the “best interests of the child”? [86] In Young v Young, (SCC), [1993] 4 SCR 3 at 119, Justice McLachlin, as she then was, wrote that [17] Securing the best interests of the child entails protecting the child physically, psychologically, and emotionally, and promotingthe child’s physical, psychological, and emotional flourishing.

Justice Chappel wrote in DRT v KAD, 2018 ONSC 1975 at para 45 that [45] The best interests of the child must be ascertained from the lens of the child rather than from the parents’ perspective; parentalpreferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure that the interests of the childare safeguarded and promoted (Young, at paras. 74 and 202; Gordon, at pp. 50, 54, 68). As the Supreme Court of Canada stated in Kingv.

Low, (SCC), [1985] 1 S.C.R. 87 (S.C.C.), at para. 101, the ultimate aim of the courts in resolving custody and accessdisputes is “to choose the course which will best provide for the healthy growth, development and education of the child so that he willbe equipped to face the problems of life as a mature adult.” [87] The parties approached the best interests of DL by reference to the factors set out in the FLA s. 18(2).

I note that JusticeWatson observed in GL v NAH (CA) at para 12 that [12] Both the FLA and CYFEA provisions essentially list considerations in service of the court’s fundamental and primary obligationto make a determination of the “best interests” of the child. Under both statutes, the court is to be practical and realistic, duly attentive tothe evidence and to give attentive, objective and impartial regard to a large number of considerations.

Because the PGO was granted in this case, DL is no longer “in need of intervention.” It follows that CYFEA s. 2(1) is not engaged, sincethat subsection commences “[i]f a child is in need of intervention ….” [88] After identifying an issue that, in my opinion, does not bear on DL’s best interests, I will consider DL’s “views andpreferences” (to the extent that these may be ascertained), DL’s special needs, the relationships between DL and persons other than theproposed guardians, DL’s cultural and linguistic upbringing and heritage, and DL’s psychological and emotional needs including hisneed for stability and his history of care.

A. Wrongful Removal and DL’s Present Best Interests [89] The evidence did not support any finding that DL was removed from the Foster Parents for just cause. DL should not havebeen removed from the Foster Parents. Removing DL from the Foster Parents caused him psychological harm. See RP v Alberta(Director of Child Youth and Family Enhancement), 2016 ABQB 306 at para 210; TE v Alberta (Child, Youth and FamilyEnhancement Act, Director), 2013 ABPC 265, Filice PCJ at paras 74-77. DL had lived with the Foster Parents for, at that time, verynearly his entire life.

They were the only parents he had known. [90] Nonetheless, the fact that DL should not have been removed from the Foster Parents is not, by itself, probative on the issue ofDL’s best interests. DL’s best interests must be assessed from his perspective now. The best interests assessment is not a judicial reviewof the Director’s decision to remove the child. Neither is the assessment a means to remedy any compensatory justice concerns.

In RW,the Court of Appeal wrote as follows at para 37: [37] The respondent grandparents argue that the length of time it has taken to process these claims has prejudiced their position. Thepassage of time, plus the Director’s unilateral decision to terminate contact between the children and the respondent grandparents, hasmeant that the children have not seen the respondent grandparents for over five years. This, they argue, is inconsistent with the decisionof this Court (2009 ABCA 25) that their application for private guardianship should have been heard contemporaneously with the

application for the permanent guardianship order. Thus, they argue, their rights to guardianship should be adjudicated based on the situation as it stood in 2006 when it was incorrectly concluded that they had no standing …. Conceptually, the position the respondents take has some attraction. The reality of the children’s situation must, however, prevail over any conceptual position that can be advanced. The best interests of the children must be measured as things presently stand, not as they existed five years ago.

The children’s newly revealed wishes and the other relevant factors listed in s. 18 of the Family Law Act must all be considered . [emphasis added] Judge Krinke wrote as follows in HH (Re) , 2014 ABPC 40 at para 17 : [17] When asked about the Director’s transfer of HH from AC to LC in June 2013, Wotherspoon commented that for her “it was water under the bridge” and was of no consideration in her opinion as to what now should happen with HH. I have also used that comment. Counsel for AC takes exception to that. I will explain. The inquiry now is whether LC or AC should be granted private guardianship of HH.

All relevant statutory authority and all case law directs me to consider only the best interests of HH. While superficially it is attractive to punish the Director’s actions by awarding guardianship of HH to AC, this clearly would be an error in law. [emphasis added] See also GL v NAH (CA) at para 16. [ 91 ] Some implications and qualifications of the fact that DL should not have been removed should be noted. First, and most importantly, the removal cannot stand in any way as any adverse reflection on the suitability of the Foster Parents as guardians for DL.

Second, the Grandparents had nothing to do with the removal. DL only came to their care as the fourth destination following the removal. The removal does not reflect adversely on the Grandparents. Third, management of KTC CFS has changed. Current personnel were not involved in the removal. The removal does not taint the position of the current Director. [ 92 ] And finally, I acknowledge that the “history of care for the child” is a relevant factor under s. 18(2) (b)(ii). It was acknowledged on all sides that the Foster Parents had a deep relationship with DL in his first 4 ½ years.

There is no suggestion that the removal somehow made the past irrelevant. A question to be addressed further below concerns the presence of DL’s past in his present. B. Child’s Views and Preferences [ 93 ] Under s. 18(2)(b)(iv), the Court must consider “the child’s views and preferences, to the extent that it is appropriate to ascertain them.” [ 94 ] DL only just turned 9. He is too young to have considered opinions about his best interests. He is some years from being a mature minor. Nonetheless, he is old enough to have opinions that should be heard and respected. Ms.

Weber, counsel for the Child, invoked article 12(1) of the Convention on the Rights of the Child : “States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child” (https://www.ohchr.org/en/professionalinterest/pages/crc.aspx). [ 95 ] Ms. Weber carefully conveyed the observations she had gathered respecting DL’s views and preferences, with his permission.

Perhaps not surprisingly, he wants a bond with both the Foster Parents and the Grandparents. [ 96 ] Properly, DL did not testify or directly provide evidence in the proceedings. The parties, though, referred to things said by DL. I treated these reports not as hearsay but as observations relevant because of what DL was alleged to have said.

There was also evidence of, e.g., projects done at school that reflected on family life, but the probative value of this evidence was impaired because the circumstances of creation of the projects (particularly the degree of direction by third parties) was not (and again properly should not been) explored. [ 97 ] What was said or not said by DL could be relevant to his state of mind, to the status he accorded the adults in his life. [ 98 ] The Foster Parents testified that DL called them “mom” and “dad.” He never called them anything else. [ 99 ] Mr.

Laboucan, DL’s transporter, reported that when with him DL referred to the Foster Parents as his “foster parents.” He never heard DL refer to them as mom and dad. DDL testified to overhearing DL talking to her grandchild (DL’s friend). DL referred to the Foster Parents as his “foster parents,” not as mom and dad. [ 100 ] Mr. Laboucan said that DL referred to his Father as “dad,” as when DL pointed out the road to his Father’s residence when driving by with Mr. Laboucan. [ 101 ] Both Mr. Laboucan and Ms. Koe (DL’s grade 1 teacher) testified that “all that [DL] talks about” is his grandparents. [ 102 ] Ms.

Koe and the Grandmother testified that DL never talks about the Foster Parents. Ms. Koe, I should add, said DL never mentioned his biological parents. [ 103 ] DL’s observed emotions could also be relevant to his state of mind regarding the adults in his life. [ 104 ] The Foster Parents produced photographs showing DL smiling and evidently having a great time doing activities with the Foster Parents and their family. The Grandparents produced photographs showing DL smiling and having a great time doing activities with the Grandparents, DL’s siblings, and others. [ 105 ] Mr.

Laboucan did testify that DL had cried, had tears in his eyes, on leaving the Foster Parents’ home after visits. [ 106 ] But on the other hand, Mr. Laboucan also testified that DL was happy when he went home to the Grandparents. When asked what he saw with DL and the Grandparents, he said “a family.” He saw the “joy” of DL with the Grandmother. In a revealing observation, he recounted seeing them walk away together, each giving the other a little push. He said “they have fun together.”

[ 107 ] What was said and shown confirms Ms. Weber’s observation that DL wishes to have a relationship with both the Foster Parents and the Grandparents. I have no reason to doubt either the Foster Parents’ or the Grandparents’ and other witnesses’ reports of what DL said and didn’t say. For DL to call the Foster Father “dad” and his Father “dad” makes sense. When with the Foster Parents, he uses the most appropriate names that he has – mom and dad. When he is outside their environment, when he is not with them, he uses “dad,” to describe his biological father.

Similarly, it is not uncommon for a young child whose parents have repartnered to call (e.g.) his mother’s new partner “dad” and to call the biological father “dad” too. DL does not call his Grandparents “mom” and “dad” (with one or two school project exceptions that don’t have significant evidentiary weight). [ 108 ] DL has learned to navigate two distinct social spaces, one with the Foster Parents, one with the Grandparents. When in the Grandparents’ world, DL does not talk about the Foster Parents. The Foster Parents did not testify that when DL is with them, he talks about the Grandparents.

In his Grandparents’ world, the Grandparents are not “mom” and “dad” despite their evident importance to him. “Dad” is his Father. DL is making distinctions and recognizing the scope of the different places he inhabits. I’ll return to this facility below. C. Special Needs [ 109 ] Under s. 18(2)(a), the Court is to ensure “the greatest possible protection of the child’s physical, psychological and emotional safety.” [ 110 ] The Foster Mother indicated some early testing showed that DL suffered from some developmental delays. That was not spelled out in the evidence.

Because of the Mother’s addictions, there is a reasonable probability that DL will suffer from FASD. However, it appears that he has not yet been diagnosed. Ms. Koe indicated that the testing would occur in Grade 3 or 4. [ 111 ] The Foster Parents have FASD training. The Grandparents do not. [ 112 ] Loon River, however, has a health care centre. Grand Chief Noskey testified that it has psychiatric supports. The school has experts in-house, including psychologists and literacy experts. There are resources for children with learning disabilities. Ms.

Koe referred to DL seeing a specialist at KTC CFS at the end of grade 1. D. Others [ 113 ] Under s. 18(2)(b)(vii)(A), “the Court is to consider “the nature, strength and stability of the relationship … between the child and each person residing in the child’s household and any other significant person in the child’s life.” The “stability” factor is also relevant to this relationship survey. 1. The Mother and DN [ 114 ] Counsel for the Director described the Mother as a “troubled soul.” Her life has indeed been hard.

She struggles with drug and alcohol addiction. [ 115 ] The Mother has supported the Foster Parents’ application for guardianship. Foster Parents’ counsel queried why her wishes should be ignored. [ 116 ] In part the answer is that the Mother is not DL’s guardian and has not been since October 2012. In part the answer is that, on the evidence, she has not established anything like a strong relationship with DL. DL was apprehended when he was just months old. His first months were spent in hospital. He has never been in her care.

She is, in my view, close to being a stranger to him. [ 117 ] The Mother did testify that she would see DL more often if he were with the Foster Parents. She said that she does not have a good relationship with the Grandparents, claiming that the Grandmother “called the cops” on her. The Grandmother did not confirm that this occurred in cross-examination. The Grandmother said that she had known the Mother since she began to date the Father, and used to help her a lot.

The Grandparents looked after DN, one of the Mother’s daughters by another father, for some months when DN was in grade 3 and attended school in Loon River. The Grandmother cares for DL’s two sisters (children of the Mother and Father) and talked about visits the Mother has had with DL’s sisters when DN is present. It is true, however, that the Grandmother made some disparaging remarks about the Mother during her testimony.

The Grandmother, I infer, is concerned about and disapproves of the Mother’s drug use. [ 118 ] I add that the Foster Mother confirmed that she would not permit DL to go on unsupervised visits with the Mother unless “she was good for a very long time.” [ 119 ] It does not appear from the documentary evidence that the Mother referred Child and Family Services to the Grandparents as family resources when her care of DL was being investigated.

The Family Group Conferences record entered as an exhibit indicated that there “appears to have been minimal discussion about extended family placement for this child.” There is “no documentation to note attempts by worker to contact the extended family.

There appears to be no documentation to indicate attempts at contact with the paternal side of the family before and after the child became PGO.” Further, “[i]t is noted that the mother was not supportive of bio father being involved.” And finally, “[t]here is no information to indicate that the paternal extended family was explored in regard to permanency planning.” While the significance of this was not explored in testimony, I note that this document suggests that the KTC unit involved was KTC “Lubicon.” [ 120 ] The Mother has three children with the Father, DL and his two sisters ALL and ATL.

The sisters do not reside with the Mother. [ 121 ] DN is the Mother’s child from another father. DN is in her 20s, with two children of her own. She lives in Cadotte Lake. Her children are very young and do not know DL. She did not testify to having any relationship with DL. She did suggest that she would assist with teaching DL Cree, if he were to live with the Foster Parents. However, in response to some queries in Cree by counsel for the

Grandparents, DN was unable to respond. 2. The Father [ 122 ] The Father initially did not consider himself to be DL’s parent. The

preamble to the PGO stated the following: [AL], the father was personally served with notice of this application. [AL] was present and represented by counsel. Michael Nanouch, counsel for [AL], made an application to the Court requesting that [AL] be excluded from the proceedings, as it was his position that [AL] was not a guardian of the child. The Court granted the application excluding [AL] as guardian. The Father testified that at the PGO hearing he did not know what was going on, he had no lawyer, he did not deny that DL was his son, and he did not recall being served. I reject this testimony wholly.

The PGO was signed by the Clerk of the Court and by counsel. I accept the veracity of the court document. [ 123 ] The Father did say that he was told by the Mother that DL was not his. This was their last child together. The Father had a new partner before DL was born and had another child, TL, near to the time when DL was born. The Father has 11 children with 5 partners, including three with the Mother. [ 124 ] For reasons that were not clear, the Father took a DNA test in 2015 that established that he is DL’s father.

There was no evidence that the Father made any or any significant efforts to track down DL after the PGO hearing. However, the Family Group Conferences document supports the inference that KTC CFS did not reach out to him respecting DL. [ 125 ] DL was briefly placed with the Father and his then partner in 2015. DL was removed and placed with the Grandparents. The Father claimed that the Social Worker did not tell him why DL was removed and he didn’t remember who the Social Worker was. He did recount that his partner at the time was frustrated with the Father.

She was looking after a newborn (FL) a 4-year old (TL), and DL and the Father was working away from the home. [ 126 ] The Father has guardianship of his two daughters ALL and ATL, but they are cared for by the Grandparents much of the time. They do reside also with the Father, such as on weekends. The Father explained that he works all the time, away from home. Over the summer in particular he is a firefighter.

The Father’s residence is about 10 km from the Grandparents’ home. [ 127 ] The father does have a criminal record, for “driving and assault mostly,” although not to his recollection any impaired driving offences. Rather, he had a few “drive while suspended” offences. His licence has been suspended by MEP because of child support arrears. [ 128 ] The Father has a good relationship with the Grandparents. He visits DL frequently at the Grandparents, by his account nearly every day. He sees DL after work. He goes hunting with DL. DL calls him “dad,” as confirmed by Mr. Laboucan. The Father speaks Cree with DL. 3.

Siblings (

a) Foster Parents [ 129 ] EW who is 14 and the Foster Parents’ biological son JR who is 13, lived with DL during his first 4 ½ years and see him when he visits the Foster Parents’ home. They share a room. The Foster Father testified that the boys see each other as brothers. His biological son has “nothing over” EW and DL. He loves them – as he does JR – as his own. The Foster Mother confirmed that EW and DL were “raised like brothers.” (

b) Grandparents [ 130 ] DL’s two sisters ALL and ATL (about 14 and 11) live for the most part with the Grandparents, sometimes switching back to stay with the Father and his partner. They are with the Grandparents over the week, since the school bus does not stop near the Father’s home. [ 131 ] The Grandparents also look after GN, who is the son of CN. GN does not live with the Grandparents full time. The Grandmother had guardianship of CN. She was the daughter of a friend who found herself unable to raise her child.

The Grandmother raised her. [ 132 ] DL’s half-sister (the child of the Father and another mother) is TL, who is about the same age as DL. DL sees her and her sister FL, who is about 4, regularly. DL has another half-brother AJL (the child of the Father and another mother), but he is only about 2. TL and FL live in Loon River while AJL lives in Cadotte Lake. 4. Friends [ 133 ] DL’s best friend is SL. He and SL are in the same grade and same class at Clarence Jaycox School in Loon River. SL is the grandson of DDL, who is married to EL, one of the Grandparent’s sons.

For two weeks a month, SL lives close to DL, at the next house over, about 50 metres from DL’s home. Ms. Koe confirmed the friendship between DL and SL that she observed in her class. 5. Relatives (

a) Foster Parents

[ 134 ] The Foster Father has 6 siblings in the Dixonville area. He testified that some have children. One has a 12 year old child. The relationship of that child with DL was not established. The Foster Father testified that DL considers his brothers uncles, and the Foster Mother confirmed that DL sees his aunts and uncles when he visits. (

b) Grandparents [ 135 ] The Grandparents have two children in addition to the Father (a fourth child passed away). Both of these children live in Loon River. One of the children lives across the road from the Grandparents and has six children of his own, ranging in age from 6-19. They have a 13-year old, an 8-year old, and a 6-year old. [ 136 ] The Grandmother and Grandfather both come from large families that maintain connections. [ 137 ] As Grand Chief Noskey described it, Loon River has familial subdivisions. Extended families tend to live in close proximity to one another. Ms.

Nipshank referred to the family kinship structure that is found in the community. The community is connected and networked on family lines. [ 138 ] Grand Chief Noskey listed seven relatives of the Grandparents that live within about a 400 metre walk from their house. “Relatives,” he said, “are all around.” 6. School [ 139 ] When he was with the Foster Parents, DL was too young for school. [ 140 ] DL, who is now in Grade 3, has attended the same school, Clarence Jaycox School in Loon River, since Kindergarten. 7.

Extracurricular Activities [ 141 ] DL engages in a variety of outdoor activities with the Foster Parents when with them and with the Grandparents when with them. [ 142 ] At this point, he does not appear to be involved in organized sports such as baseball, soccer, hockey, or basketball or in other athletic training activities. [ 143 ] DL has no connections to teams, clubs, coaches, or activities that would be available only in Dixonville or Loon River but not in both. There are sports opportunities in Loon River, particularly for hockey, as Grand Chief Noskey testified (school intramurals, baseball, volleyball).

Doubtless there are plenty of sports opportunities in the Dixonville area as well. E. Culture [ 144 ] Under s. 18(2)(b)(iii), the Court must consider “the child’s cultural, linguistic, religious and spiritual upbringing and heritage.” The application of this factor was one of the most contested aspects of the applications. DL is Cree.

There was no dispute that the promotion of his cultural identity was very important to his best interests. [ 145 ] The Foster Parents contended that life with them would sufficiently promote this aspect of DL’s wellbeing. “We are a native home,” the Foster Mother testified, “we live a native way.” The Foster Parents’ argument had four aspects. First, life with the Foster Parents would be a Cree life. It would have the same features as life in Loon River. Second, the Foster Parents had access to resources that would compensate for any shortcomings in the cultural education they could deliver.

Third, relying on the expert evidence of Ms. Ragan, the Indigenous experience they could provide would meet DL’s mental health needs. They would sufficiently honour his identity. Fourth, it was the Director who failed to respect DL’s Indigenous heritage by transferring DL’s affiliation from the Lubicon Lake Band to Loon River First Nation. 1. Failing to Respect DL’s Indigenous Heritage [ 146 ] I will begin with the last feature of the Foster Parents’ argument. It has two aspects.

First, Grand Chief Noskey was clear that if only one parent is a Band member, the parent has to apply to have the child made a Band member. The parent must sign. The membership then votes. The mechanism by which DL became a Loon Lake member was not clear. It may be that KTC CFS applied, rather than the Father, although the Father may have consented to the application. If so, DL’s application would have been irregular. Nonetheless, this is a Band matter. This is not a matter for me to decide. There was no evidence or argument that DL’s membership is somehow void.

DL is a member of Loon River. [ 147 ] The second aspect of the argument is that, regardless of whether DL could become and is a Loon River member, should he have become a member of that Band? We do not have evidence on differences in cultural practices between Lubicon Lake and Loon River. When asked whether DL was missing out on parts of Cree culture associated with Little Buffalo, Grand Chief Noskey said, “I don’t know.

I don’t like passing judgment on another community or its leadership.” [ 148 ] The evidence did not establish that DL was exposed, at least to any significant extent, to Lubicon Lake culture and tradition. I bear in mind that he left the Foster Parents when he was 4 ½, so the impact of any exposure must be considered in light of his age. DL never lived in Little Buffalo.

The Foster Mother did refer to Sister Mary Jeanne having been “to our house, doing smudges, doing things with [DL],” “doing native cultural religious stuff, including smudges.” She said that Sister Mary Jeanne was a “recognized Elder for Little Buffalo, the Lubicon.” She “worked with Lubicon kids in foster care.” She was from the “Peace River area” and was “their person.” She did not know if Sister Mary Jeanne was Indigenous or not. Sister Mary Jeanne assisted the Foster Parents with the preparation of a cultural plan.

I do not find that the role of Sister Mary Jeanne as a cultural transmitter for the Lubicon Lake Band has

been established. [ 149 ] I note that the evidence did show some mobility between Indigenous people between communities in Cadotte Lake, Little Buffalo, and Loon River, as well as other nearby Indigenous communities, which may be some evidence of cultural similarities rather than significant differences. 2. Compensatory Resources [ 150 ] I’ll consider next the compensatory resources proposed by the Foster Parents. The Foster Parents looked to the Mother and DN to assist with instructing DL. The Mother, though, is not reliable and cannot be counted on.

DN did not demonstrate fluency in Cree. [ 151 ] A Cree language app is available. Grand Chief Noskey praised it. But he clarified that it is a supplement. It helps. Learning the language (any language) comes from frequent use, at best from living in a Cree-speaking community or at least from living with other Cree speakers. The app won’t do on its own. That strikes me as a sensible conclusion, at least for many learners. 3. Living or Honouring Cree Culture [ 152 ] I’ll consider together the Foster Parents’ argument that they live a Cree lifestyle and the supporting argument, based on Ms.

Ragan’s testimony, that honouring Cree culture, in the circumstances, will sufficiently promote DL’s cultural identity. [ 153 ] I’ll begin by dismissing an argument made by the Director. The Director sought to undermine the Foster Parents’ commitment to cultural planning for DL by pointing out that the Foster Parent’s cultural plan was submitted very late. It was signed October 27, 2019, just before trial. The point was to show that the plan was a sort of afterthought or papering over of a lack of commitment.

The Foster Mother responded, however, that a cultural plan had been prepared years before, before the PGO hearing. That plan, which had been duly submitted, had “gone missing.” That plan had been prepared with the assistance of Sister Mary Jeanne. Subsequently, while the Foster Parents remained foster parents, cultural programming was the responsibility of the Director, the Director of KTC CFS. This is an adequate response to the charge of, in effect, lack of sincerity. I find that the Foster Parents’ commitment to cultural planning is wholly sincere.

The issue is whether the planning is appropriate for DL, in all the circumstances. [ 154 ] The Foster Mother pointed to a great-great grandmother who was Pawnee, from the United States. The link of that ancestry to Cree culture specifically or Indigenous culture generally was not explored in evidence. [ 155 ] The Foster Father had understood himself to be, for nearly all of his life, Métis. The Foster Father’s sister, through researching the family ancestry, learned that his mother was Cree. The Foster Father has applied for Treaty Status. To date, his application is pending.

There was some concern raised in cross-examination about the completeness of the materials filed as an exhibit (a page was missing), but nothing turns on this. The essential point was made in cross-examination by Director’s counsel. Cree culture (or cultures) and Métis culture (or cultures) may overlap or have similarities, but they are not the same.

There was no evidence of any change in the Foster Parents’ ways of living after the Foster Father’s Cree heritage was disclosed. [ 156 ] What of those ways of living – regardless of ancestry, do the Foster Parents live a Cree lifestyle? [ 157 ] Again, there are some manifest similarities between the lifestyles of the Foster Parents and the lifestyles of the Grandparents. Both families hunt, fish, and live off the land.

There may be, for example, variations in ways of skinning animals or in animals hunted or in parts of animals prized and cooked, but the overall way of life is similar. [ 158 ] This is particularly so because the way of life of the Loon River Cree is not fully traditional. Life at Loon River has developed, as cultures often do. Grand Chief Noskey proudly explained that his community is Christian and that does not make it less Cree. Loon River has no pow-wows. Turning from the spiritual to the technological, Loon River residents like the Grandparents go quadding.

These features of Loon River life make it more like life outside Cree boundaries. [ 159 ] In my opinion, an argument of what might be termed “functional similarity” misses the mark. There is an assumption of a sort of Indigenous monoculture, that can be replicated by certain external actions, not specific to the Cree, but to any Indigenous groups or non- Indigenous persons who live off the land.

More deeply, the nature of “culture” is misunderstood. [ 160 ] The trial had no expert evidence respecting “culture,” although there were witnesses who lived Cree culture and witnesses (and a judge) who lived Western/European culture. The important point is that culture cannot be reduced to a language and some set of ceremonies, practices, and beliefs.

These are part of culture, and are important, but what binds a culture together (or the variations that form a spectrum of cultures within a broader sort of culture) are the small rules and conventions that give meaning to life, from time a person opens his or her eyes in the morning until the end of the day. Identifying and describing these elements of culture is difficult, because these elements are so familiar, so natural, that they tend not to be noticed. [ 161 ] Life at Loon River is more profoundly and directly Cree than can be managed at the Foster Parents’ home. DL is immersed in the culture.

He swims in it without even noticing it is there. The Cree language is taught in school and used in daily life by adults and children. Cree ways are transmitted through everyday interactions with community members and the Grandparents. This is, in my view, the essence of the cultural plan submitted on behalf of the Grandparents in 2015. The plan is not detailed, but it does describe the way culture is transmitted: [The Grandparents] are both members of the Loon River Cree Nation and speak fluent Cree, and are passing the Cree language on to [DL].

Both [Grandparents] have lived in the north all their lives, and have extensive knowledge of Cree Culture and ways of living off the land. [The Grandparents] will pass on the teachings they have been taught on spirituality, and will connect [DL] to the necessary community events pertaining to their beliefs and traditions …. [ 162 ] But one might respond by asking why this supposed cultural immersion is important to DL.

[ 163 ] I recognize that the application of s. 18(2)(b)(iii) must be appropriately oriented. Under the FLA, this is one factor among others. Under the CYFEA, this factor has a more pronounced emphasis. Regardless, this factor should not overbear other factors. The focus in applying this factor should not be on correcting historical errors, even historical tragedies, or on vindicating collective rights. These are important matters for child welfare policy and practice. The guardianship inquiry, though, turns on the best interests of DL, on what is and shall be best for him, all things considered.

Other judges have warned against allowing policy to overcome the best interests of the child. See, e.g., Justice Sanderman’s observation in FM v SS , 2010 ABQB 195 at para 52 : “There is a danger in blindly following policy. By doing so, the statutory factors found in the legislation can have their importance diminished. Policy should never overrule a statutory regime decided by the legislative body of this province.

A blind application of policy can, in certain circumstances, lead to diminution of the best interests test.” [ 164 ] If DL had never lived in Loon River or had been only slightly exposed to life in Loon River, the significance of continuing to live in Loon River would be less intense. We come to Ms. Ragan’s observation that often honouring a child’s culture, investing in that culture, so the child knows who he or she is, is what is required – but not necessarily more. [ 165 ] But DL has lived in Loon River for about four years. He has gone to school.

He has participated in activities with his Grandparents and friends and relatives. He has been a part of that culture. What would it mean for him to leave that? [ 166 ] In my opinion, the risk is that DL will conclude that the real way of life is not good enough. What suffices is a reproduction or recreation of it, a representation of it made by outsiders. His cultural life can be reproduced on a farm in rural Alberta, and this will be better for him. He should get his culture by losing his culture.

I do not suggest that DL would think in these terms – this is just a way of describing the risk that he would perceive the life he left as not good enough. But he (and his parents, and his Grandparents, and his friends and relatives) were part of that life. What they had to offer would not be good enough. The risk is that DL’s judgment would turn inward, and become a reflection on himself, as a product of that life. F. Psychological and Emotional Needs [ 167 ] Paragraph 18(2)(b)(

i) requires the Court to consider “the child’s physical, psychological and emotional needs, including the child’s need for stability, taking into consideration the child’s age and stage of development.” This overarching set of considerations also requires consideration of “the history of care for the child” (s. 18(2)(b)(ii)) and “the nature, strength and stability of the relationship … between the child and each person in respect of whom an order under this Part would apply” (s. 18(2)(b)(vii)(B)). I will approach these factors chronologically, as the “history of care” element would suggest. 1.

DL’s Early Life [ 168 ] DL spent 4 years with the Foster Parents, from when he was just a few months old until he was about 4 ½. No one disputed that the Foster Parents developed a very strong connection to DL and DL to the Foster Parents. [ 169 ] Ms. Ragan emphasized the importance to a baby during this early period of touch, of smell, of voice. The baby learns through these many and varied means who his parents are. [ 170 ] DL must have been a challenging baby. He was born with problems. He cried. The Foster Parents used the technique of wrapping or swaddling him. Ms.

Ragan commented that this technique has the advantages of supporting the child, having the child feel body heat, and having the child feel the heartbeat of the parent. Both Foster Parents carried DL by wrap. [ 171 ] DL’s time with the Foster Parents produced attachment, an emotional and psychological bond. The Foster Mother and perhaps equally the Foster Father were DL’s primary attachments. [ 172 ] There was some effort in cross-examination to suggest that because the earliest days of childhood cannot be or are seldom recalled, that these days are less important than later times that we can recall more easily.

Ms. Ragan blocked that suggestion. She distinguished between early non-verbal memories and verbal memories, different sorts of memory systems. Our early days, when attachments are formed, are not somehow less important because we can’t recall specific events (the first time we spoke, the first time we walked, the first time we ate solid food). 2. DL’s Transition [ 173 ] In late April 2015, DL was removed from the Foster Parents. [ 174 ] He was relocated not once but four times, ending up with the Grandparents. [ 175 ] DL was traumatized. [ 176 ] This was Ms.

Ragan’s conclusion based on her observations of DL in eight sessions, between June 2017 and April 2018. Through his play, he demonstrated attachment difficulties. He did not feel safe and protected. He did not feel a bond with current caregivers. He felt alone. Those who tried to help him in his play got hurt or disappeared. He was grieving the loss of historical figures. This was “huge” for him. [ 177 ] DL’s trauma was not only reflected in his play. He was very quiet. This was noted by Ms. Ragan. Children are often quiet when they first come for sessions with her. They’re anxious.

It takes awhile for them to “warm up” to her, usually about half a session. DL, though, “should have been more verbal for his age and development.” The duration of his nonverbalization was not typical. He was not communicative for 6 or 7 sessions. Both the Father and the Grandmother had commented on DL’s silence and passivity when he first came to Loon River. Ms. Koe said that when DL came into grade 1 he was quiet and shy.

[178] DL had trouble controlling his bladder. Ms. Ragan said this is common for traumatized children. They regress. Grand ChiefNoskey, who assisted with transporting DL on one or two occasions, recalled that DL had urinated in his car. DL was held back frombeginning the first year of Kindergarten or pre-school because he was not potty-trained. The Grandmother testified to the difficulties DLhad with urinating. In his early days with her he peed his pants seven times a day. Ms. Koe testified about DL urinating in class in thefirst few months. He wouldn’t ask to go to the bathroom. [179] Ms.

Ragan’s opinion was that DL was reacting not only to loss, but to the different parenting styles to which he was exposed.His play showed that he was struggling between incredible rigidness and no boundaries – that is what he perceived; that is the differencehe perceived. [180] Ms. Ragan properly qualified her opinions. First, she had not been provided with DL’s history. She could not associate any ofDL’s conduct with any adults.

Second, she recognized that DL’s premature birth and consequent time in the hospital could havesignificantly affected him: he “didn’t have the first learning.” (One might say that there was an aggravation of a pre-existing condition.)Third, her conclusions were valid based on her observations at the time. More current observations could yield different conclusions. [181] With respect to the first qualification, counsel for the Foster Parents insisted that DL’s primary attachment, the loss that hemourned, was with the Foster Parents. While Ms.

Ragan would not provide that opinion given the limitations on information provided toher, I accept that conclusion. 3. DL’s New Life [182] Ms. Koe observed changes in DL in grade 1: At the end, he was a regular boy. He didn’t pee himself. It was almost like heforgot his old self. In an e-mail of July 24, 2018, Ms. Koe reported that she had to give DL lengthy hugs every day, “much like a newborn baby to his mother.” She then said, “But by June, it was almost non-existent that [DL] needed the half an hour hug. It was like hisbucket just filled up.” Ms.

Koe also testified how later in the year DL was playing with his friend SL at school, like a typical boy. WhenDL started grade 1, he was withdrawn. By January, he got out of his shell. By the end of the year he was thriving. [183] The Grandmother testified to DL having gotten his bladder pretty much under control. He’s no longer jumpy, seeming scared.He’s good, he’s different. [184] DL’s first 4 ½ years with the Foster Parents were important.

The next 4 years with the Grandparents have been important too.Over that later period, the Foster Parents have not been entirely absent from DL’s life, but they have had a much smaller role. Over thatlater period, DL has set down new relationships with his Grandparents, people he didn’t know before he was removed from the FosterParents. [185] DL is now 9. As indicated above, he is making distinctions, between mom and dad, foster parents, and grandparents. He isunderstanding and navigating the worlds he lives in. His Mother is only a shadow on the outskirts of his life.

His Father has re-emerged.He is present while not taking on the proper role of father. DL has his sisters and his friends. The centre of his new world is hisGrandparents. 4. DL’s New Transition? [186] At para 31 of RW, the Court of Appeal wrote that “[d]isruption of the continuity of the children’s care is clearly relevant to theirbest interests, but it is not the only factor.” Is one more transition in DL’s best interests? Should he be moved from the Grandparents backto the Foster Parents? [187] Best interests govern.

There is no presumption in favour of the status quo: Botticelli v Botticelli, 2009 ABQB 556, Veit J atparas 17 – 21. That being said, Justice Poelman wrote in Rensonnet v Uttl, 2016 ABQB 95 at para 207, affd 2016 ABCA 196 that [207] Having regard to the existing arrangement, particularly when it has been in place for some time, is not to defer to a presumption.Rather, “the status quo is a factor to be considered when determining the best interests of the child”: Ackerman v Ackerman, 2014 SKCA86 , [2014] 10 W.W.R. 429, para 32. [188] Ms. Ragan drew an analogy. If a tree is transplanted too often, it dies.

In her opinion, DL does not have the resilience to betransplanted much more. In my opinion, Ms. Ragan was careful not to say that DL could not or should not be transitioned just one moretime. What she did emphasize is that he needs stability: “someone has to be mom and dad permanently.” Then, no more transition; hecan’t handle another transition. [189] Ms. Ragan’s view was that the best case would be for DL to stay permanently with the persons he feels closest to. Because shedidn’t get a history she couldn’t assess who that might be.

Second best would be a permanent placement with persons other than those heis closest to, so long as a relationship is maintained with those he is closest to. Stability would be promoted by maintaining importantfigures in DL’s life. Important relationships should be honoured. [190] It has taken DL substantial time to rebuild himself, to fill his bucket back up. He has been 4 years with his Grandparents, hissisters, his friends, and his Father.

He is embedded in a familial network in Loon River. [191] In my opinion, transitioning DL back to the Foster Parents would not bring the relief of homecoming, but would reopen thewounds of trauma. He would re-experience loss, this time of the life that he has constructed with his Grandparents. Further, with hismaturing awareness of the roles of those around him, there is the risk that he would feel unwanted by his own family, by his Mother, byhis Father, by his Grandparents who held him for 4 years. I realize that the Foster Parents can meet the legal, practical, and liveddefinition of family too.

But natural connections, the connections of the natural family, in my view, remain psychologically andconceptually central and centrally important, and would be centrally important to DL.

V. Conclusion [ 192 ] I have taken into account DL’s physical, psychological, and emotional needs, including his need for stability. I have considered that he spent most of his first 4 ½ years with the Foster Parents and this was a very important time for him. Being removed from the Foster Parents was hard for DL. But he has regained his emotional footing and he has now spent some 4 years with his Grandparents. He is 9 and is coming to understand the worlds in which he lives.

In my opinion, to move a child who was separated from his mother essentially from birth, separated from the Foster Parents after about four years, moved to three different placements in about 6 months before being placed with his Grandparents, would significantly traumatize DL. [ 193 ] I have taken into account the contribution of cultural heritage, DL’s status as a member of a Cree Nation, his experience in living in Loon River First Nation, to DL’s wellbeing.

In my opinion, his best interests are served by remaining in his Cree cultural community with his Grandparents. [ 194 ] I recognize that EW and JR are brothers to DL. In Loon River, DL has two sisters. He is in a community with other half- siblings. His best friend and classmate lives a few metres away. He lives surrounded by members of his extended family. While DL’s Father has not yet proved himself as a father, he is at least seeing DL and doing things with him.

I have taken into account the nature, strength and stability of the relationships between DL and each person residing in his household and any other significant persons in his life. In my opinion, DL’s best interests in relation to this factor too are best served by remaining with his Grandparents. [ 195 ] For these reasons, I grant the application of the Director, terminate the Director’s guardianship of DL, and appoint the Grandparents as DL’s guardians. [ 196 ] Further, particularly in light of Ms.

Ragan’s evidence, it is in DL’s best interests to continue to have contact with the Foster Parents and continued contact will be ordered

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