J.S.G. Applicant - v. -, 2021 ABQB 306

Court of Queen’s Bench of Alberta Citation: JSG v Alberta (Director of Child, Youth and Family Enhancement), 2021 ABQB 306 Date: 20210419 Docket: FL03 48442 Registry: Edmonton Between: J.S.G. Applicant - and - Director of Child, Youth and Family Enhancement Respondent Restriction on Publication Publication Permitted – See the Child, Youth and Family Enhancement Act ,

section 74.1 By Court Order, this electronic judgment may be published on the court website and distributed to libraries and publishers and may be published by them. Identification Ban – See the Child, Youth and Family Enhancement Act ,

section 126.2 . No person shall publish the name or photograph of a child or of the child's parent or guardian in a manner that reveals that the child is receiving, or has received, intervention services. NOTE: This judgment is intended to comply with the ban so that it may be published. FILE SEALED: The Court’s adoption file in this matter, including the official signed judgment, is sealed pursuant to the Child, Youth and Family Enhancement Act ,

section 74.1 . _______________________________________________________ Reasons for Decision

of the Honourable Madam Justice D.A. Yungwirth _______________________________________________________ Introduction [ 1 ] On December 21, 2020, the Applicant filed an Originating Application for an order to “unseal the adoption order, and set it aside in order to address the review of the PGO that was initially pursuant to a Notice of Review and Application, filed October 12, 2017”. [ 2 ] The applicant is the birth mother of the child, S, born December 25, 2013. An Adoption Order was granted on January 8, 2018 in relation to that child. [ 3 ] The applicable legislation for this application is

section 73.1 of the Child, Youth and Family Enhancement Act , RSA 2000, c C-12 ( the Act ). [ 4 ] Subsection 73.1(1) provides: 73.1(1) No application to set aside an adoption order shall be made after the expiration of one year from the date of the adoption order except on the ground that the order was procured by fraud, in which case it may be set aside only if it is in the best interests of the adopted child. [ 5 ] When the Applicant’s application first came before this Court on January 25, 2021, the Court directed that before the application to set aside the Adoption Order could proceed, there first had to be a determination of whether the Adoption Order was procured by fraud.

Without a finding of fraud, an application to set aside an adoption order that is made after the expiration of one year from the date of that Adoption Order cannot proceed. [ 6 ] Accordingly, the issue of whether or not the Adoption Order granted January 8, 2018 was procured by fraud, was set for a hearing on April 12, 2021 and filing deadlines were set for materials, including written submissions. [ 7 ] This is the Court’s decision on the fraud issue.

History [ 8 ] The history of this matter (prior to September of 2016) is set out in more detail in the decision of Macklin J released September 14, 2016; JSG v Alberta ( Child, Youth and Family Enhancement Act , Director) , 2016 ABQB 510 (JSG ), paras 4-25 . [ 9 ] In

summary, the child, S, was apprehended in December 2013 and was returned to the Applicant in February 2014 after an initial custody hearing. The child was apprehended again in September 2014 and remained in the Director’s care until the adoption was granted on January 8, 2018. [ 10 ] On October 16, 2014, an initial custody hearing was held and the resulting orders gave the Director custody of the child until the conclusion or withdrawal of the Director’s temporary guardianship order (TGO) application (filed September 15, 2014).

The October 16, 2014 Order required the Applicant to attend for and comply with the recommendations from, a neuropsychological assessment and a parenting assessment. It also granted the Applicant reasonable access to the child, to be supervised at the discretion of the Director.

The October 2014 Orders were appealed to the Court of Queen’s Bench. (The appeals were adjourned several times and eventually stayed by this Court on November 24, 2015.) [ 11 ] On February 9, 2015, an interim order was made suspending the Applicant’s access to the child pending completion of a review access hearing. [ 12 ] On March 6, 2015, the TGO application was amended to request a permanent guardianship order (PGO0. [ 13 ] On March 19, 2015, an interim order was made providing that, if the Applicant agreed that psychologist Dr.

Graham Ross could be present for her access visits with the child, then certain access visits could occur. Otherwise, access would be suspended pending a further court order. [ 14 ] Dr. Ross observed two access visits between the Applicant and the child.

The first occurred on April 1, 2015 and the second occurred on April 14, 2015. [ 15 ] On April 17, 2015, the Provincial Court made an access order providing that the Applicant would have 3 supervised visits per month with the child. [ 16 ] On May 27, 2015, a further order was made that suspended the access granted on April 17, 2015 unless reasonable access could be agreed to between the parties.

Any agreed upon access was to be supervised by the Director. [ 17 ] Notwithstanding the Orders of April 17, 2015 and May 27, 2015, April 14, 2015 was the last time that the Applicant had access time with the child. [ 18 ] The PGO trial proceeded for 7 days, beginning on September 21, 2015 in Provincial Court. The mother and the child were

each represented by Counsel. The child’s father (CT) did not attend the trial. [ 19 ] On October 23, 2015, the trial judge gave his decision. He made three orders. The first was an Order for Permanent Guardianship which made the child the subject of a Permanent Guardianship Order. The second was a Post PGO Access under an Existing Permanent Guardianship Order. That order provided that prior to any access, the Applicant “shall attend for a psychiatric evaluation.

She shall provide consent to the release of all previous background material, medical records, reports and assessments, to be shared with the psychiatrist prior to the psychiatric evaluation.” The order went on to provide that the Applicant would engage in the recommended treatment and that she would be evaluated by her psychiatrist after 6 months of such treatment for the purpose of considering the resumption of access. Clause 4 of the Order provided: 4.

Even if it takes longer than six (6) months, on the recommendations of the Psychiatrist that access visits can be resumed without risking emotional harm to the child, with appropriate visit protocols and rules in place, the post Permanent Guardianship Order [for] Access shall then commence.

Access to the mother [(JG)] shall be supervised in the discretion of the Director, unless there is an Adoption Order in place, which in any case shall terminate any Post Permanent Guardianship Order for access. [ 20 ] The third order was an Order for No Access under an Existing Permanent Guardianship Order which provided that there would be no access granted to the child for the father (CT). [ 21 ] On November 18, 2015, the Applicant appealed the first two October 23, 2015 orders to the Court of Queen’s Bench.

Her application for a stay of those orders pending the appeal was dismissed on December 14, 2015. [ 22 ] The Appeal was heard by Macklin J on August 19, 2015; JSG v Alberta ( Child, Youth and Family Enhancement Act , Director) , 2016 ABQB 510 . At the hearing of the appeal, the Applicant provided several new documents (much of the first bundle of which were also attached to the Applicant’s Affidavit in support of the current application).

In dismissing the Applicant’s appeal Macklin J stated at paragraphs 120-121: [120] At the end of the day, the parties’ fresh evidence has had no impact on the conclusions I have drawn. Although the first bundle of documents suggests the Mother has recently made some efforts to address her mental health issues, they do not indicate what progress, if any, the Mother has made since the PGO trial.

And, the second bundle of documents and the restraining order simply reinforce the trial judge’s conclusions regarding the risks the child would face if she was returned to the Mother’s care, or if the Mother was given unconditional access to her.

Having considered the parties’ fresh evidence, I remain satisfied that there is no basis for me to interfere with the trial judge’s adjournment decision, PGO decision or post-PGO access order. [121] Following a complex seven-day trial involving the testimony of twenty-five witnesses, including experts, the trial judge granted a PGO appointing the Director as guardian of the child and a conditional post-PGO access order in favour of the Mother.

His oral reasons show that he carefully considered the evidence and the relevant provisions of the Act , and that he maintained his focus on the best interests of the child. The trial judge committed no reviewable errors in his findings or analysis. Nor did he do anything to indicate that he was biased against the Mother. Indeed, his granting of the post-PGO access order in the circumstances demonstrates that he was cautiously optimistic that the mother will address her mental health issues and re-connect with her daughter when she is well.

At the end of the day, the trial judge said he believed “it would be in the child’s best interests ... to at some point have a healthy mother ... to connect with”: TT at 810/37-38. [ 23 ] While her appeal of the Macklin J decision was underway, the Applicant brought an application in Provincial Court to amend the Post PGO Access Order. That application came before the Provincial Court on November 3, 2016. The Applicant had Counsel assisting her for that application. The Applicant was attempting to rely on the same “fresh evidence” that had been before Macklin J.

The Provincial Court Judge directed that the matter could not proceed until the Court of Appeal had given its decision and a leave application was brought to examine if there had been a change in circumstances. [ 24 ] The Applicant’s appeal of the decision of Macklin J to the Court of Appeal was struck on April 12, 2017 because she did not file a factum (despite having been given several extensions). The Applicant applied to have the appeal restored but her application was denied on May 26, 2017.

The Applicant then applied to appeal the May 26, 2017 denial to a three-justice panel, and that application was dismissed on October 6, 2017. [ 25 ] The Applicant then applied on October 12, 2017 in Provincial Court for a review of the Post PGO Access Order and the PGO. That application was adjourned several times at the request of the Applicant so that she could get counsel through Legal Aid.

In addition to the issue of whether or not the Applicant had complied with the conditions in the Post PGO Access Order, there was also an issue as to whether or not her application was properly before the Court because, pursuant to a November 3, 2016 Order of the Provincial Court, the Applicant required leave (and had to show a change in circumstances) before she could proceed with her application. [ 26 ] By the January 4, 2018 appearance in Provincial Court, the Director indicated to the Court in the presence of the Applicant, that the Director was in the process of finalizing an adoption for the child, S.

At that appearance, the Director also filed and served the Applicant with an Affidavit that indicated that there was an adoption in process. [ 27 ] At the next court appearance on January 23, 2018, the Court was advised that the adoption had already been granted and the Court concluded that it had no jurisdiction to deal with the matter and dismissed the Applicant’s application. [ 28 ] I note that this matter had a Case Managing Judge in Provincial Court (Felice

J) and a Case Managing Justice in the Court of Queen’s Bench (Browne J). In summarizing the facts above, several applications and appeals have not been mentioned because they do not add anything to an understanding of the history that is relevant for the current application. The Adoption Proceedings

[ 29 ] The Adoption file remains sealed. However, the Court reviewed it for this application to determine what was put before Browne J when the adoption application was presented to the Court. This is to address the Applicant’s concern about information having been withheld from Browne J at the time the adoption was granted. It is directly relevant to the allegations of fraud. [ 30 ] The adoption documents were provided to the Court under cover of a letter dated December 13, 2017 from Mr. Pearcey on behalf of the Director.

In that letter the Court was advised that the Applicant’s application in Provincial Court to Review the PGO was outstanding. [ 31 ] Browne J was provided with copies of all three Orders granted October 23, 2015 by the Provincial Court after the PGO trial. [ 32 ] She was also provided with the court transcript from the application to amend the Post PGO Access Order that previously came before the Provincial Court on November 3, 2016. [ 33 ] In support of the adoption application, the Director provided the Affidavit of Tanya Thompson, sworn December 13, 2017. It was 194 pages with attachments.

The Affidavit set out the history of the matter and attached all of the Provincial Court Orders granted between December 27, 2013 and May 27, 2015. The Affidavit also explained the appeals to the Court of Queen’s Bench and to the Court of Appeal. [ 34 ] Paragraph 22 of the Affidavit explained that on October 12, 2017, the Applicant filed a new application to terminate the PGO and replace it with a Temporary Guardianship Order.

It explained that the Applicant also appeared to be seeking access to the child. [ 35 ] The Affidavit explained that the matter was scheduled to be heard in Provincial Court on January 4 to address the issue of whether leave was required for the Applicant to proceed with her application.

There was an indication that it could take much longer for the matter to be considered in Provincial Court. [ 36 ] As part of the application, the Director sought an order dispensing with service of the Notice of Adoption Application on the Applicant. [ 37 ] Browne J was provided with the transcript from the decision of Savaryn PCJ on October 23, 2015, a copy of Macklin J’s decision from the Court of Queen’s Bench appeal, a copy of the May 26, 2017 decision of the Court of Appeal on the application to restore the appeal, and a copy of the October 6, 2017 Order of Velduis JA dismissing the application to appeal the decision of May 26, 2017 to a three-justice panel. [ 38 ] Browne J was also provided with the Applicant’s Notice and Application for a Review filed October 12, 2017 with supporting material. [ 39 ] All of the above documents were before Browne J on January 8, 2015 when she dispensed with the need to provide notice of the adoption to the Applicant, confirmed that no notice to the biological father was necessary, and granted the adoption. [ 40 ] The Applicant was notified of the adoption on January 19, 2018.

She did not appeal the Adoption Order and did not file the current application until December 21, 2020, almost 3 years after the adoption was granted.

Analysis [ 41 ] The Applicant relies on, as proof that the adoption was procured by fraud, the following (using her wording as much as possible): 1) The Director’s guardianship of the child was a live issue in view of the Applicant’s pending application filed on October 12, 2017 in Provincial Court for a review of the Post PGO Access Order and an order to make the PGO order a TGO; 2) The Applicant did not receive notice of the adoption; 3) It was not proper for the Queen’s Bench Justice to finalize the adoption while proceedings were still ongoing in Provincial Court; 4) The Director should have halted the adoption proceedings pending the outcome of her application filed October 12, 2017 in Provincial Court; 5) The Director failed to give full details of the access proceedings in Provincial Court to the Justice in the Court of Queen’s Bench who considered the adoption. (The Applicant does not believe the Justice would have granted the adoption order if she had full knowledge of the proceedings going on in Provincial Court). [ 42 ] I will address each of these concerns separately, but first, it is helpful to consider what is required to establish “procurement by fraud” in this type of application. [ 43 ] The lawyer for the Director was unable to locate any Alberta cases on the meaning of “procured by fraud” in an adoption situation.

However, he relies on the case of GMJ v SJS , 2015 BCSC 531 ( GMJ ) in this regard.

In that case, the adoption order was made without the consent of and without any notice to the biological father of the child (GMJ) on the assertion by the mother and her new partner that there was no person who comes within the definition of “father” as that term was defined in the British Columbia Adoption Act. [ 44 ] Under the British Columbia Adoption Act , the Court can set aside an adoption order only if it is satisfied that the order was obtained by fraud and that setting it aside would be in the best interests of the child. That provision relies on the same principles as ss. 73.1(1) of the Alberta Act.

Like the Alberta legislation, the BC legislation does not define what constitutes fraud. In that case, the Court

considered cases that set out what is required to establish fraud, including the Supreme Court of Canada case of Bruno Appliance & Furnace Inc. v Hryniak , 2014 SCC 8 , which states at paragraph 21: [21] From this jurisprudential history, I summarize the following four elements of the tort of civil fraud: (1) a false representation made by the defendant; (2) some level of knowledge of the falsehood of the representation on the part of the defendant (whether through knowledge or recklessness); (3) the false representation caused the plaintiff to act; and (4) the plaintiff’s actions resulted in loss. [ 45 ] These elements of the tort of civil fraud were confirmed by the Alberta Court of Appeal in the case of Giustini v Workman , 2021 ABCA 65 , at para 34 . [ 46 ] The court in GMJ applied these elements in its decision at paragraph 50, and found that the respondents had knowingly and intentionally sworn false affidavits for the purpose of obtaining an adoption order (without the consent of the father in order to thwart any continuing involvement of the father) and that they knew that the court would rely on the affidavits to dispense with notice to the birth father when granting the adoption. [ 47 ] I adopt that reasoning and confirm that to establish that an adoption order was procured by fraud as contemplated by s. 73.1(1) of the Act , the following is required: 1.

A false representation is made by words or conduct (this includes the omission of required information); 2. The maker knows that the representation is false or is reckless as to whether or not it is false; 3. The maker knows that the representation will be relied on in the adoption process, including being relied on by the Justice granting the adoption; 4. The reliance on the false representation results in the contravention of the statutory and other requirements necessary for the Adoption Order in issue to be granted. [ 48 ] I turn now to the issues raised by the Applicant. 1.

The Director’s guardianship of the child was a live issue because the October 12, 2017 application was pending. [ 49 ] There can be no doubt that the Director was a guardian of the child at the time the Adoption Order was made. This was confirmed on October 23, 2015 after a seven day trial. The Post PGO Access Order made it clear that the Applicant’s access would terminate if there was an adoption order in place. [ 50 ] The appeal of the October 23, 2015 Orders was upheld by the Court of Queen’s Bench on appeal.

The appeal to the Court of Appeal was also dismissed after the Applicant applied to restore her appeal and the Court of Appeal refused to restore the appeal, largely because the appeal lacked arguable merit. [ 51 ] The Applicant’s filing of an application in Provincial Court did not change the status of the Director as guardian of the child.

Further, the Order of Ho PCJ (granted November 3, 2016) provided that the Applicant had to provide new information (that was not presented to the Court of Queen’s Bench or the Court of Appeal) to show a change in circumstances before she could make her application for access to the child.

So, there is some question as to whether her application filed October 12, 2017 was properly before the Court. [ 52 ] Therefore, I find that the mere filing of the October 12, 2017 application by the Applicant did not put in issue, the Director’s Guardianship of S, nor did it put in issue, the Director’s ability to proceed with an adoption for S. [ 53 ] In these circumstances, where there has been no false representation, and the Director has proceeded appropriately under the Act , the Court is unable to conclude that the Adoption Order was procured by fraud because the October 12, 2017 application was pending. 2.

The Applicant did not receive notice of the adoption. [ 54 ] It is correct that the Applicant did not receive notice of the adoption. [ 55 ] Pursuant to ss. 34(4) of the Act , if the Court makes a permanent guardianship order, the Director is the sole guardian of the person of the child and the Public Trustee is the sole trustee of the estate of the child. After the Permanent Guardianship Order was granted on October 23, 2015, the Applicant was no longer a guardian of S. [ 56 ] Therefore, the Applicant was not a guardian of S at the time of the adoption application.

The Applicant therefore had no statutory right to notice of adoption proceedings. [ 57 ] However, there are decisions where the court has extended a right to notice of an adoption proceeding to a biological parent, notwithstanding that there was no statutory right to notice.

This issue was addressed by the Alberta Court of Appeal in Alberta (Child Welfare) v BD , 1992 ABCA 98 at para 11 , where the Court of Appeal confirmed that “[in] the absence of a continuing relationship of some type between the natural mother and child subsequent to the PGO or the PGA those rights cease and the mother is not entitled to notice of adoption proceedings taken in respect of that child.” [ 58 ] Had the Applicant maintained a relationship with S or contact with S after the PGO, she would have been entitled to notice of

the adoption. The failure by the Applicant to reestablish contact with S was a direct result of her inability to satisfy the directions imposed by the Court in the October 23, 2015 Post-PGO Access Order and subsequent the November 3, 2016 Order. Though there were several appeals from the October 23, 2015 Orders and 2 applications filed in an attempt to resume access with S, the reality is that by the time the adoption application was submitted, the Applicant has not exercised access to S since April 14, 2015.

In addition, the Applicant did not, between April 14, 2015 and the date of the Adoption Order, take all of the steps that the Court specified were required in order for her to proceed with her application for access to S. [ 59 ] Further, even if the Applicant had been entitled to notice of the adoption, she would have had limited standing in the adoption process, only as it relates to potential collateral conditions or orders under the Court’s parens patriae jurisdiction, which is exercised only in exceptional circumstances: NEW (Re) , 2017 ABQB 565 at para 12 .

The right to notice would not have allowed the Applicant to either review the adoption file or prevent the adoption. [ 60 ] Ultimately, the Director put the issue of notice to the Applicant in the hands of Browne J when the application for an adoption order was submitted. Browne J would have considered that request, along with the adoption application, from a “best interests of the child” perspective. She concluded that it was appropriate to dispense with service of notice of the adoption on the Applicant. [ 61 ] There is no indication of any false representation having been made in the adoption application.

It is clear that Browne J was provided with the entire history of the matter, including the Applicant’s pending application in Provincial Court. In addition, the Applicant was told of the pending adoption at the January 4, 2018 appearance in Provincial Court and in the Affidavit provided to her on that day. Accordingly, the Court is unable to conclude that the Adoption Order was procured by fraud because the Applicant did not receive notice of the adoption application. 3.

It was not proper for the Queen’s Bench Justice to finalize the adoption while proceedings were still ongoing in Provincial Court. [ 62 ] Browne J was made aware that the Applicant’s October 12, 2017 review and access application had not been finally determined in Provincial Court. When the adoption application was being considered, there had been no determination of whether the Applicant’s application in Provincial Court was proper, or when that issue or the application itself would be heard.

Waiting for those determinations would have resulted in a delay in establishing the permanence and security that an adoption order provides for S. [ 63 ] Being aware of these things, the Court still chose to make the Adoption Order. As with the issue of notice, it must be assumed that Browne J concluded that it was in the best interests of S for the Adoption Order to be granted notwithstanding the ongoing proceedings in Provincial Court.

There was no appeal of the Adoption Order. [ 64 ] The Court is unable to conclude that the Adoption Order was procured by fraud because Browne J concluded that it was in the best interests of S to grant the Adoption Order while proceedings were still ongoing in Provincial Court. 4. The Director should have halted the adoption proceedings pending the outcome of the Applicant’s application filed October 12, 2017 in Provincial Court. [ 65 ] The Director is required to act in the best interests of the child.

It was clear in paragraph 4 of the Post PGO Access Order granted October 23, 2015, that an Adoption Order would terminate the access order. [ 66 ] Further, and I adopt the reasons of Browne J at paragraph 21 in the NEW case in this regard, “the purpose of child protection legislation is to give children permanence and stability. Prior to a PGO, there is a priority to reunite the birth family.

Once a PGO is granted and the related appeals have been heard, the onus and interests shift so that the birth or biological family no longer have a priority interest; rather, the best interests of the children become the priority. The issue of delay becomes an important factor.” [ 67 ] In this case, the child had been in the care of the Director since September 2014 and the child not had access to the mother since April of 2015. All of the appeals by the Applicant from the October 23, 2015 PGO and Post PGO Access Orders had been exhausted.

The Director had to focus on the best interests of the child and proceeding with the adoption was consistent with that obligation. [ 68 ] The Court is unable to conclude that the Adoption Order was procured by fraud because the Director did not halt the adoption proceedings pending the outcome of the Applicant’s application filed October 12, 2017 in Provincial Court. 5.

The Director failed to give full details of the access proceedings in Provincial Court to the Justice in the Court of Queen’s Bench who considered the adoption [ 69 ] Having outlined above, the material that was provided to Browne J in the adoption application package, I am satisfied that all information about what had happened and was still happening in Provincial Court had been disclosed to the Court along with all other relevant and required information. [ 70 ] I am also considering that Browne J had case managed this matter in the Court of Queen’s Bench since February 26, 2015 and that she was well familiar with the matter generally. [ 71 ] As the Director did not fail to give full details of the access proceedings in Provincial Court to the Justice who considered the adoption application, the Court is unable to conclude that the Adoption Order was procured by fraud on this basis.

Conclusion [ 72 ] The Applicant has failed to establish that the Adoption Order granted January 8, 2018 by Browne J was procured by fraud. [ 73 ] I note that apart from the fraud issue, the Director argues that:

a) the Applicant does not have standing to bring this application because she did not have standing to oppose the adoption;

b) the Applicant’s application is barred by laches; and

c) this application is an abuse of process. [ 74 ] In light of my findings on the fraud issue, it is not necessary for me to address these points. [ 75 ] The Applicant’s application to unseal the adoption order has not yet been addressed.

Section 74.1 of the Act mandates that no documents kept by the court relating to an adoption will be available for inspection by anyone except on order of the Court or with the written consent of the Minister. As the Court has reviewed the adoption file to fully consider the fraud issue, and in light of the Court’s conclusions on the fraud issue, there is no reason for the Applicant to have access to the adoption file. [ 76 ] The Applicant’s applications to unseal the adoption order and to set aside the adoption order are both dismissed. Heard on the 12 th day of April, 2021.

Dated at the City of Edmonton, Alberta this 19 th day of April, 2021. D.A. Yungwirth J.C.Q.B.A. Appearances: JSG Self-Represented Litigant Andrew Pearcey Alberta Justice – Civil Litigation for the Director