RN v. VN, 2021 ABQB 122

Court of Queen’s Bench of Alberta Citation: RN v Alberta (Director of Community and Social Services), 202 1 ABQB 122 Date: 20210217 Docket: 1903 23236 Registry: Edmonton Between: RN and VN Applicant - and - Director of Community and Social Services Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice G.R.

Fraser ________________________________________________________ [ 1 ] The applicants in this matter are seeking judicial review of the Director of Community and Social Services decision to deny funding for a disabled child under the Family Support for Children with Disabilities Act . The decision turned on whether or not the child met the requirement that he be ordinarily a resident in Alberta. [ 2 ] The child in question was born in 2014. He has cerebral palsy which has caused mental and physical developmental delays. He requires a great deal of care.

He was born in Alberta, and both of his parents resided in Alberta. At approximately six months of age, his mother’s aunt and uncle, the applicants, voluntarily became guardians of the child. The mother was no longer able to properly care for the child. He has been primarily in the applicants’ care ever since the Guardianship Order. [ 3 ] The applicants initially applied for funding through the Act in 2017. At that time, the applicants resided on a farm approximately five miles across the Saskatchewan border. Their application was initially denied. In August 2017 the denial was reversed.

The reasoning was that the child usually spent five days per week with a family that resided just inside the Alberta border. It was hoped that the family would eventually adopt the child.

[4] Unfortunately, the family was not approved for adoption of the child. The denial, along with other changes in the familycircumstances, meant that they could no longer look after the child five days per week. The child would go back to residing with his auntand uncle in Saskatchewan. [5] Since the child was moving to Saskatchewan, he would no longer be ordinarily a resident in Alberta. This would make himineligible for funding under the Act.

A transition period was provided, but it expired June 30, 2019. [6] The possibility of a Saskatchewan program providing support was thoroughly explored by the child’s caseworkers.Unfortunately for the applicants, the Saskatchewan programs all have a means test. Due to their income, the applicants would not qualifyfor any support in Saskatchewan. [7] In order to maintain funding, the applicants now reside separately. RN resides on the farm in Saskatchewan. VN and thechild reside in rented accommodation in Alberta.

They are approximately thirty miles apart. [8] From the record provided, it appears all the caseworkers involved tried to find a way to continue to allow the child to receivefunding. The only possible solution was to have the applicants turn the child over to Child and Family Social Services. The child wouldbe deemed to have been abandoned, and then that department could re-assess the family. They might decide that the uncle and auntwould be appropriate for a kinship care placement.

This would likely make them eligible for funding, however there was no guaranteethat it would happen. [9] Interestingly, if instead of voluntarily becoming guardians for the child, the applicants had reported the child’s situation toChild and Family Services in 2014, the agency likely would have placed the child in kinship care with the applicants and providedfunding.

By acting quickly and in the best interests of the child, the applicants have been thrown into a Kafkaesque world whereeveryone would like to help, but bureaucracy does not allow them to provide assistance. [10] The matter has come to Court by way of judicial review because the Act does not allow for appeals based on thedetermination of “ordinarily resident”.

Both the applicant and the respondent agree that the test to be applied on the judicial review isone of reasonableness. [11] The applicants point to the 2017 reversal of the denial of funding as evidence that the child could still be considered ordinarilyresident in Alberta. However, there is one significant change between the situation as it was then and the present situation. The childwould no longer be residing in Alberta five days per week. He would reside full-time with the applicants on the family farm inSaskatchewan. [12] The Act contains no definition of “ordinarily resident”.

This means that the ordinary definition of the term should be applied.In Nafie v Badawy, 2015 ABCA 36, the Court of Appeal seems to have found that ordinary residence is established when a person goesto a new locality with the intention of making a home there for an indefinite period. Although the definition was being used in thecontext of a divorce case, it is equally applicable to this case. [13] In this case, the child would be moving to the family farm in Saskatchewan. Although he might attend school in Alberta, andmight have other ties to Alberta, his home would be in Saskatchewan.

He would spend most of his nights there, eat most of his mealsthere, and there would be no plan in place to return to Alberta. This was the factual situation presented to the Director. I find that it wasreasonable for the Director to find that the child was not an ordinary resident of Alberta. [14] If the Director’s decision could not be overturned on judicial review, the applicants sought to have the Court exercise itsdiscretion under the doctrine of parens patriae. The doctrine is an ancient one that allows the Court to act for the protection of those whocannot care for themselves.

There is a lengthy discussion of the history and development of the doctrine in E.(Mrs.) v. Eve, (SCC), [1986] 2 SCR 388. I will not repeat it here. [15] That same decision provided some guidance on when the parens patriae powers should be exercised, writing: Though the scope or sphere of operation of the parens patriae jurisdiction may be unlimited, it by no means follows that the discretion toexercise it is unlimited. It must be exercised in accordance with its underlying principle.

Simply put, the discretion is to do what isnecessary for the protection of the person for whose benefit it is exercised; see the passages from the reasons of Sir John Pennycuickin Re X, at pp. 706-07, and Heilbron J. in Re D, at p. 332, cited earlier. The discretion is to be exercised for the benefit of that person, notfor that of others. It is a discretion, too, that must at all times be exercised with great caution, a caution that must be redoubled as theseriousness of the matter increases.

This is particularly so in cases where a court might be tempted to act because failure to do so wouldrisk imposing an obviously heavy burden on some other individual. para 77 [16] The Eve decision also confirms the Court’s authority to exercise its use of the parens patriae power even if there is legislationin the area.

At paragraph 44 La Forrest, J wrote: It continues to this day, and even where there is legislation in the area, the courts will continue to use the parens patriae jurisdiction todeal with uncontemplated situations where it appears necessary to do so for the protection of those who fall within its ambit; see Beson v.Director of Child Welfare (Nfld.), (SCC), [1982] 2 S.C.R. 716. [17] In this case, there is legislation in the area. The legislation is clear, only a child who is an ordinarily resident in Alberta canreceive funding. I do not find the applicants’ circumstances to be an uncontemplated situation.

The legislation must have considered thatpeople move, and sometimes move outside of the province. The legislation is clear about what happens when somebody is no longerordinarily a resident in the province. They no longer receive funding. [18] Additionally, exercising the parens patriae jurisdiction in the manner sought by the applicants would seem to primarilybenefit the applicants. The physical and financial burdens of caring for the child after the move would fall solely to them. Funding wouldgive them relief from both of these burdens; a definite benefit to them.

The applicants are loving, caring guardians of the child. I am

confident he will continue to receive the same care from them regardless of whether or not funding is provided. [ 19 ] This seems to be precisely the situation that is warned against in Eve . Not exercising the jurisdiction will impose a heavy burden on the applicants. It is unfortunate, but I do find that this is not a situation where the Court can exercise it’s parens patriae jurisdiction. [ 20 ] It saddens me to make such a finding, as I realize the Courts are now contributing to the Kafkaesque situation in which the applicants are trapped.

I hope that somehow the bureaucracy can be adapted to provide for the needs of the applicants and the child. It is unfortunate that the law does not permit me to order such an adaptation . Heard on the 20 th day of January, 2021 Dated at the City of Edmonton, Alberta this 17 th day of February, 2021 G.R. Fraser J.C.Q.B.A. Appearances: Timothy Snyder Skovberg Hinz for the Applicant Hana Laura Yamamoto Alberta Ministry of Justice and Solicitor General for the Respondent