MD v Alberta (Director of Child and Family Services), 2021 ABQB 270

Court of Queen’s Bench of Alberta Citation: MD v Alberta (Director of Child and Family Services), 2021 ABQB 270 Date: 20210409 Docket: FL01 34611 Registry: Calgary Between: M.D. Appellant - and - Director of Child and Family Services Respondent 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. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice M. David Gates _______________________________________________________ Introduction and Overview

[ 1 ] The Applicant, MD, seeks an order to extend time for the filing of her appeal of the Initial Custody Order of the Honourable Judge J R Shaw of the Provincial Court of Alberta, dated December 14, 2020. The Applicant also seeks a stay of the Initial Custody Order pending appeal, as well as other forms of relief. History of Proceedings in the Court of Queen’s Bench [ 2 ] Her application was filed in the Court of Queen's Bench of Alberta on February 5, 2021. [ 3 ] This application was initially heard by Grosse J in Family Docket Court on February 5, 2021.

The matter was then set over to Family Chambers on February 16, 2021.

The Applicant filed a further application on February 9, 2021, seeking, amongst other things, a fiat to file her appeal late in accordance with s 46 of the Provincial Court Act , RSA. [ 4 ] Prior to the hearing of this application in Family Chambers, the Director of Child and Family Services ("the Director") prepared, and attempted to electronically file, a cross-application to dismiss or strike out the application to extent time for the filing of the Applicant's Notice of Appeal, as well as the other relief set forth in the initial application.

Unfortunately, the Director's materials were not available to the Court on February 16, 2021, and had not been served on the Applicant. Similarly, the Applicant's materials, save for her Family Court Docket application and her subsequent application filed on February 9, 2021l, were also not before the Court on February 16th. Accordingly, I advised the parties that the various missing materials would be assembled and reviewed by a justice of this Court and a decision rendered. In the absence of the relevant materials, it was determined that this matter could proceed as a desk application.

The Director was given leave to serve the Applicant with the cross-application and supporting materials via email. [ 5 ] For reasons that are unknown, the Director never received confirmation from the Court that the cross-application and supporting materials had actually been filed. A review of the Court's Procedure Card on April 6, 2021, revealed that the Director's application had never been entered on the procedure card associated with this file.

Counsel for the Director submitted a duplicate application and supporting materials on April 6, 2021, which were subsequently filed on April 8, 2021. [ 6 ] No Notice of Appeal has ever been filed by the Applicant in either Provincial Court or the Court of Queen’s Bench, as required by the Child, Youth and Family Enhancement Act , RSA 2000, c C-12 (“the Act ”). An unfiled copy of a Notice of Appeal dated February 2, 2021 is on the Provincial Court file, together with what appears to be a supporting affidavit filed on February 4, 2021.

The header of both of these documents refer to “the Court of Queen’s Bench”, though neither document is on the Queen’s Bench file. In this supporting affidavit, the Applicant deposes that she is asking that her appeal be allowed notwithstanding that it is past the 30-day deadline for the filing of an appeal. She goes on to describe how she was misinformed by legal counsel as to whether or not she should file a Notice of Appeal.

She urges that the appeal be heard notwithstanding the fact that it was not filed within the 30-day time limit. [ 7 ] The Applicant’s materials filed in the Court of Queen’s Bench on February 9, 2021, also include an affidavit sworn that same date. In her affidavit, the Applicant deposes that she is “asking for the appeal to be allowed to be submitted as I was wrongfully informed by legal advice.

Had I received the right legal advice I would of submitted my appeal in time.” In her materials, she makes it clear that she is relying on ss 44.1 and 46 of the Provincial Court Act, in seeking a stay of enforcement of the December 14, 2020, order of Judge Shaw, as well as an extension of the time to file and serve her Notice of Appeal. History of the Proceedings in Provincial Court [ 8 ] On December 1, 2020, the Director was granted an ex parte Apprehension Order by the Honourable Judge T K Davis of the Provincial Court of Alberta, relative to the child CD.

At the time of the apprehension, CD was living with the Applicant and her adult siblings. CD has resided in an approved foster home since the date of apprehension. On December 14, 2020, the Director was granted an Initial Custody Order by the Honourable Judge J R Shaw of the Provincial Court of Alberta. [ 9 ] The first court appearance following the apprehension of CD took place on December 11, 2020, though the deadline for the Initial Custody Hearing was January 22, 2021. The Applicant attended this initial court appearance and was represented by counsel.

At the insistence of the Applicant, the Initial Custody Hearing was set for December 14, 2020. The hearing proceeded on that date notwithstanding the fact that the Director has not been able to provide complete disclosure given the short time-line between the date of the first appearance and the date set for the hearing. The Applicant declined an offer to adjourn the hearing to allow for disclosure to be completed. The Applicant gave evidence during the hearing.

At the conclusion of the hearing, Judge Shaw granted custody to the Director by way of Interim Custody Order. [ 10 ] Subsequent to the Initial Custody Hearing, a Case Management Hearing was held on February 4, 2021, before the Honourable Judge S E Lipton of the Provincial Court of Alberta. At this hearing, the parties were directed to proceed to

schedule this matter for trial. On February 26, 2021, the Provincial Court directed that the Notice and Application for Permanent Guardianship be adjourned to May 13, 2021; that a pre-trial conference be set for August 17, 2021; and that trial dates of September 21-24, 2021 be confirmed. Analysis [ 11 ] Sections 114 - 117 of the Child, Youth and Family Enhancement Act , RSA 2000, c C-12 , ("the Act ") governs appeals relating to child welfare matters.

The relevant portions of these provisions read as follows: Time for Appeal 114(1) An order of the Court made under this Act may be appealed to the Court of Queen's Bench not more than 30 days after the date on which the order is made or renewed by

a) a guardian of the child other than a director, .... Procedure on Appeal 116(1) An appeal to the Court of Queen's Bench under this Act is to be commenced by

a) filing a notice of appeal setting out the grounds of the appeal with the clerk of the Court, and

b) filing a copy of the notice of appeal in the Court of Queen's Bench. [ 12 ] The Child, Youth and Family Enhancement Court Rules and Forms Regulation, AR 39/2002 (" the Enhancement Regulation "), provides at s 2: Court Practice and Procedure 2(1) In any matter not provided for in the Act or this Regulation, the Court may follow the Alberta Rules of Court and the procedures of the Court of Queen's Bench.

(2) The Court may give directions respecting any practice or procedure in the Court.

(3) The Court on application may (

a) vary a rule of practice or procedure, (

b) refuse to apply a rule of practice or procedure, or (

c) direct that some other practice or procedure be followed. [ 13 ] The applicable provisions of the Provincial Court Act read as follows: Stay of judgment 44.1 The Court may stay a judgement entered or given under this Part subject to any terms or conditions that the Court considers appropriate. Time of Appeal 46(1) Any party may appeal a decision of the Provincial Court to the Court of Queen’s Bench.

a) within 30 days after the judgement is given, by (

i) filing in the Provincial Court notice of appeal setting of the grounds of appeal, and) (ii) serving the notice of appeal on (

a) the respondent, and (

b) any other person that the Court of Queen’s Bench directs, and

b) by filing in the Court of Queen’s Bench not later than seven days after the last day for service of the notice of appeal on those parties served pursuant to clause (a) (

i) a copy of the notice of appeal referred to in clause (a)(ii), (ii) an affidavit of service of the notice of appeal, and (iii) a copy of the receipt evidencing that the appellant has ordered and paid for the transcript of the evidence heard before the judge of the Provincial Court. (2) the Court of Queen’s Bench may, on application made before or after the expiration of the periods fixed by subsection (1)(

a) and (b), by order fix a further period, not exceeding 30 days from the date of the order, within which the service and filing referred to in subsection (1)(

a) and (

b) may be effected. [ 14 ] In my view, the Applicant has failed to comply with the requirements of s. 116 of the Act by filing her Notice of Appeal with the Clerk of the Court in the Provincial Court, as well as the Court of Queen’s Bench. Regardless, the Notice of Appeal is out of time. The order of Judge Shaw dated December 14, 2020, could only be appealed up to January 13, 2021, 30 days after the order was made.

The provisions of the Act confer no jurisdiction on this Court to extend the filing deadline beyond that date. [ 15 ] It is well-established law in Alberta that the Act and the Enhancement Regulations contain a complete code regarding the procedures on appeal relative to child welfare matters. The provisions of the Provincial Court Act , and the Rules of Court have no

application as there is no gap in the Act or the Enhancement Regulation that is required to be filled. It is also well-established law that theCourt has no jurisdiction to provide relief for non-compliance with the substantive requirements of the appeal procedures set out in theAct. In other words, there is no authority to extend the time for the filing of a Notice of Appeal beyond the 30 days set out in

section 114of the Act. The authority set out in s 46(2) of the Provincial Court Act is not available in these circumstances: U(

J) v Alberta (RegionalDirector of Child Welfare, 2001 ABCA 125; RR v Alberta (Director of Child Welfare), 1999 ABQB 628 , [1999] AJ No 953;Director of Child Welfare v DB (November 22, 1989) File No. 8901-10315 (ABQB); BDW v GBGR, [1989] AJ 662 (Alta CA). [16] In light of the foregoing binding authority, it is not open to me to extend the time for the filing of the Applicant's Notice ofAppeal, even assuming that the unfiled Notice of Appeal dated February 2, 2021, and signed by the Applicant is properly before me.

Aspreviously indicated, the only copy of a Notice of appeal is found on the Provincial Court file, together with what clearly appears to be asupporting affidavit filed on February 4, 2021. The Applicant’s request for a fiat for the late filing of her Notice of Appeal is,accordingly, denied. In light of my decision to deny the request for late filing, the request to stay the Initial Custody Order pendingappeal is moot.

On the application of the Director, I would strike this particular request for relief. [17] The Applicant’s remaining requests for relief were not fully argued before me on February 16, 2021, or in the writtenmaterials subsequently filed with the Court. I make no order with respect to any of these remaining items. If the Applicant wishes topursue these remaining items set forth in her application dated February 9, 2021, she is directed to give notice to the Director and to askthe Court to add this matter to a forthcoming Queen's Bench Family Chambers date. Heard on the 16th day of February, 2021.

Dated at the City of Calgary, Alberta this 9th day of April 2021. M. David Gates J.C.Q.B.A. Appearances: M.D. (self-represented litigant) for the Appellant Meagan B Watts for the Respondent