JW v Director of Child and Family Services, 2021 ABQB 325

Court of Queen’s Bench of Alberta Citation: JW v Director of Child and Family Services, 2021 ABQB 325 Date: 20210426 Docket: FL01 32640 Registry: Calgary Between: J.W. 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 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: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice Robert W. Armstrong _______________________________________________________

Appeal from the Order by Justice of the Peace W.D. Milne Dated the 2 nd day of January, 2020 Docket: CP901002855 Introduction [ 1 ] This is an appeal from an apprehension order granted on January 2, 2020 following the ex parte application of the Director of Child and Family Services pursuant to

section 19 of Alberta’s Child Youth and Family Enhancement Act, RSA 2000, c C-12 (“ CYFEA ”). [ 2 ] The Child subject to the apprehension order is of Indigenous descent. Her status brings into question the role of An Act Respecting First Nations, Inuit and Métis children, youth and families , SC 2019, c 24 (the “ Federal CYFA ”) in the apprehension process.

In particular, this appeal raises the question of whether the Federal CYFA affects the Director’s ability to make an ex parte application for the apprehension of a child who is First Nations, Inuit or Métis. [ 3 ] Prior to hearing this appeal, the Child was returned to her mother under a Supervision Order. Since the expiry of that Supervision Order, Child and Family Services has had no further involvement with the family. These circumstances raise a threshold issue of whether this appeal, which is moot, should be decided. Facts [ 4 ] This appeal concerns the apprehension of the Child born on December 26, 2019.

In addition to the Child, the mother has three other children who were, at the time of the apprehension application, aged fourteen, eight and three. The mother’s domestic partner is the father of the Child and the three-year-old. [ 5 ] There was a significant history of family violence between the mother and the father of the Child. The older children witnessed episodes of domestic violence.

The father struggled with drug use and was reportedly under the influence of methamphetamine during a police attendance at the family home in July 2019. [ 6 ] In July 2019 the mother sought and was granted an Emergency Protection Order against the father. Despite the Emergency Protection Order, the father continued to attend at the mother’s home and further instances of domestic violence occurred in September, October and November 2019. [ 7 ] On December 7, 2019 the police attended the mother’s residence for a call involving the father.

There was a no contact order in place between the father and the mother as a result of the history of domestic violence and criminal charges that had been laid against him. The father had been in the residence with the children present. Drug paraphernalia, including several used and uncapped needles, was found in the basement of the home. [ 8 ] On December 9, 2019 Children’s Services staff arrived at the home to execute an apprehension order in relation to the two oldest children. Drug paraphernalia was again observed throughout the home.

The two oldest children were apprehended and placed with their maternal great grandmother. The third child (the three-year-old) was residing with his paternal grandfather. [ 9 ] In anticipation of the impending birth of the Child, Children’s Services staff engaged in safety planning with the mother. The safety plan required the mother to reside with the Child’s maternal great grandmother on the Morley reserve. [ 10 ] The Child was born on December 26, 2019.

The mother did not follow the safety plan and instead went to stay with her mother, the Child’s grandmother, in a home that had not been approved as a safety plan option due to the recent involvement of Children’s Services in that home. [ 11 ] On January 2, 2020, upon learning that the safety plan was not being followed, Children’s Services made the ex parte application for the apprehension of the Child.

In granting the apprehension order, the Justice of the Peace said: On the basis of the violence that there was a bit of history between mother and father, the fact that the father was subject to an EPO, that the EPO was being breached between July and December 9 th at least as far as him attending and the parties were having contact, the violence between them had been substantial in the past, if resumed, would put the child here in danger, and on that basis, as well as the fact that mother appears not to be cooperative in following the CFS plan for protection of the child, the rampant or apparently rampant drug use in the place where residing.

On all of these bases, I am going to grant the order. [ 12 ] Following the granting of the apprehension order, the matter was returned to Provincial Court for the initial custody hearing, as is required by the CYFEA . The mother consented to the Director’s application for initial custody. The period of initial custody was

short and by April 8, 2020 the Child had been returned to her mother’s care pursuant to a Consent Supervision Order. [13] The Consent Supervision Order expired on October 8, 2020 and the Child has been in her mother’s care since that timewithout further involvement of Child and Family Services. Issues [14] The issues to be decided in this appeal are: 1. Should the court decide the appeal even though it is moot; and 2. Did the Justice of the Peace err in granting the Director’s ex parte application for an apprehension order?

Issue One: Should the Court decide the appeal even though it ismoot? [15] The mother concedes that this appeal is moot given that the Child has been returned to her care. However, she urges this courtto exercise its discretion to hear the matter, arguing that the appeal involves novel questions of law relating to the application of theFederal CYFA in Alberta. She also notes that apprehension orders are evasive of appeal given that initial custody hearings must occurwithin a short time of the granting of an apprehension order.

In almost every case, the apprehension order will have been supplanted by afurther order following the custody hearing by the time an appeal of the apprehension order could be heard. [16] The Director takes the position that the appeal is moot and the court should not exercise its discretion to determine theappeal. The Director argues that there is no adversarial context remaining between the parties and that the law in question is settled.

Itwould be a waste of scarce judicial resources to permit the appeal to proceed. [17] Both parties agree that the three factors the court must consider when deciding whether to exercise its discretion to hear amatter that is moot are the presence of an adversarial context; the concern for judicial economy; and sensitivity for the court’s role as theadjudicative branch of government: Borowski v Canada, [1989] 1 SCR 342, . [18] With respect to the adversarial context, there are two parties before the court prepared to argue the merits of the appeal.

Theresolution of the custodial issues relating to the Child has not resolved the ongoing question about the effect of the Federal CYFA on theability of the Director to proceed with an apprehension application on an ex parte basis. The parties have opposing views on theremaining question and the court has the benefit of written submissions and oral arguments on the merits of the issue.

There is asufficient adversarial context present to enable the court to make a fully informed decision on the merits. [19] Where the outcome of an appeal will have no bearing on the rights of the parties, there is little value in using scare judicialresources to determine that outcome. In this case, whether the appeal is allowed and the apprehension order is set aside or whether theappeal is dismissed, the Child’s situation will not change. She is in the care of her mother and will remain so regardless of the outcome ofthe appeal.

However, there is an underlying issue relating to the effect of the Federal CYFA on ex parte proceedings initiated by theDirector when First Nations, Inuit or Métis children are involved. [20] The Director argues that the law is well settled and there is no need to waste judicial resources to revisit the issue here.

TheDirector relies on the Alberta Court of Appeal decision in T v Alberta (Director of Child Welfare), 2000 ABCA 182 for the propositionthat the Director has clear statutory authority to make an application for an apprehension order without notice. [21] Much has changed since the Court of Appeal decision in T. The Child Welfare Act, SA 1984, c C-8.1 has evolved into theCYFEA. The Federal CYFA came into force on January 1, 2020 and, related to that, there has been a growing recognition of the over-representation of Indigenous children and youth in care and the importance of reducing those numbers.

This is an issue worthy of judicialattention. [22] Finally, the issue on appeal is one of statutory

interpretation. Specifically, it calls upon the court to examine the relationshipbetween the CYFEA and the Federal CYFA and to determine whether the Federal CYFA has any impact on the Director’s ability to bringan application for apprehension of an Indigenous child or youth without notice. The act of statutory

interpretation falls squarely withinthe court’s adjudicative role: Alberta (Director of Child, Youth and Family Enhancement) v DCR, 2019 ABQB 47 at para 20. [23] In

summary, there is a sufficient adversarial context for the court to decide the issues before it. Apprehension orders aregenerally evasive of appeal given the statutory timelines for review of those orders. At issue is the effect of the relatively new FederalCYFA on the Director’s procedural rights and responsibilities when it comes to obtaining apprehension orders affecting Indigenouschildren or youths. For all of these reasons I have concluded it is appropriate for this court to exercise its discretion to hear the appeal andrender a decision on the merits notwithstanding that it is moot.

Issue Two: Did the Justice of the Peace err in granting theapprehension order on an ex parte basis? [24] The parties agree that the issue on appeal raises a question of law. The standard of review is therefore correctness.

[ 25 ] The mother of the Child argues that the Federal CYFA applies concurrently with the CYFEA and that the Justice of the Peace erred in granting the apprehension order without considering the effect of the Federal CYFA on the proceedings. She argues that if the Federal CYFA had been applied alongside the CYFEA , the apprehension order would not have been heard without notice to her and ultimately, would not have been granted. [ 26 ] The Director maintains that the Justice of the Peace correctly granted the apprehension order on an ex parte basis.

In support of its position, the Director argues that the Court of Appeal’s decision in T provides a complete answer to the issue and authorizes the Director to proceed with an ex parte application for the apprehension of a child believed to require intervention. [ 27 ] In T , the Court of Appeal concluded that the legislative intent was clear in that the Child Welfare Act (now the CYFEA ) provided the Director with the explicit authority to make ex parte applications when children are believed to be at risk and that it was not appropriate for the court to superimpose conditions on that authority. [ 28 ] While the Court of Appeal declined to put in place rules or parameters on when and how a court should hear an ex parte apprehension order, since T was decided, Parliament has enacted the Federal CYFA which purports to impart certain standards when children’s services are being provided to First Nations, Inuit and Métis children and youths.

The question in this appeal is whether the Federal CYFA alters the threshold for when the Director may obtain an apprehension order without notice to the guardian. [ 29 ] To answer that question, the first step is to determine which of the applicable provisions as between the CYFEA or the Federal CYFA apply. If the two pieces of legislation do not conflict with each other and the provisions can be read harmoniously, then both may apply: Federal CYFA , s 4.

If the provisions between the two acts conflict, then the federal legislation will prevail according to the paramountcy doctrine: Law Society of British Columbia v Mangat , 2001 SCC 67 at para 23 . It must be noted that the constitutionality of the Federal CYFA has not been challenged in this appeal. [ 30 ] The parties agree that the CYFEA and the Federal CYFA do not conflict when it comes to the question of notice of applications for child apprehension orders. The two acts are complementary and can be read together.

The complementary relationship between the Federal CYFA and the CYFEA has also been examined by other courts. Following a thorough review of the applicability of the Federal CYFA under section 91(24) of the Constitution Act, 1867 , Judge J.A. Glass in Alberta ( Child, Youth and Family Enhancement Act , Director) v KC and JP , 2020 ABPC 62 said, at para 25: In my opinion, both the CYFEA and the federal Act, “as a paramount consideration” or as a “primary consideration,” place the best interests of the child at the forefront of the analysis (see also, CL , 2020 ABPC 23 (January 29, 2020) Hancock J).

This is similarly defined in both respective pieces of legislation, and is subject to considerations of preserving the child’s ties to Indigenous culture, family and community. The federal Act, in my view, generally speaking, complements, rather than contradicts, the provincial legislation. [ 31 ] The next step in the analysis is to look at the authority granted to the Director by the CYFEA in light of the complementary provisions of the Federal CYFA . The CYFEA provides the Director with the authority to obtain an apprehension order on an ex parte basis.

Section 19(1) of the CYFEA states: 19(1) If a director has reasonable and probable grounds to believe that a child is in need of intervention, the director may make an ex parte application to a judge of the Court, or if no judge is reasonably available, to a justice of the peace, for an order (

a) authorizing the director to apprehend the child . . . [ 32 ] The fact that section 19(1) of the CYFEA authorizes the Director to proceed with an application for an apprehension order on an ex parte basis does not mean the Director should do so unless that is consistent with the best interests of the child.

In other words, the authority granted in section 19(1) must be read in light of the factors to be considered in the exercise of that authority set out in section 2(1) which states: 2(1) If a child is in need of intervention, a court, an Appeal Panel and all persons who exercise any authority or make any decision under this Act relating to the child must do so in the best interests of the child and must consider the following as well as any other relevant matter: (

a) the child’s family has the primary responsibility for the safety and well-being of the child and the family’s well-being should be supported and preserved; . . . (

c) in the case of an Indigenous child, the importance of respecting, supporting and preserving the child’s Indigenous identity, culture, heritage, spirituality, language and traditions; . . . [ 33 ] Sections 2 and 19 of the CYFEA can and must be read harmoniously keeping in mind its overall objective of ensuring decisions that are made pursuant to the CYFEA are made in the best interests of the child. This includes a decision by the Director to make an application for an apprehension order on an ex parte basis. [ 34 ] This approach is consistent with

section 9 of the Federal CYFA , which states that the Act is “to be interpreted and administered in accordance with the principle of the best interests of the child” and

section 10, which states: The best interests of the child must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services in relation to an Indigenous child and, in the case of decisions or actions related to child apprehension, the best interests of the child must be the paramount consideration.

[ 35 ] The CYFEA approach is also consistent with

section 12 of the Federal CYFA which addresses notice specifically: In the context of providing child and family services in relation to an Indigenous child, to the extent that doing so is consistent with the best interests of the child, before taking any significant measure in relation to the child, the service provider must provide notice of the measure to the child’s parent and the care provider, as well as to the Indigenous governing body that acts on behalf of the Indigenous group, community or people to which the child belongs and that has informed the service provider that they are acting on behalf of that Indigenous group, community or people. [ 36 ] In the case of both

section 19 of the CYFEA and

section 12 of the Federal CYFA , the best interests of the child are paramount. If the best interests of the child require an application for an apprehension order on an ex parte basis, the Director is authorized to proceed on that basis and the court can issue an order. [ 37 ] Notwithstanding this legislated authority, the mother of the Child argues that the rules of natural justice and procedural fairness, as well as the Rules of Court in Alberta, require notice to the guardian of a child who is the subject of an application by the Director under

section 19 of the CYFEA . This argument may be addressed by looking at the larger context within which

section 19 of the CYFEA operates. [ 38 ] While

section 19 of the CYFEA grants authority for the Director to proceed with an application for an apprehension order on an ex parte basis, it does not operate in a vacuum. It is undertaken only in situations where the Director has reasonable and probable grounds to believe that a child is in need of intervention and it is only the first step in a larger process that requires a full hearing on the merits of the Director’s application in relation to the child. [ 39 ] Once an apprehension order is granted,

section 21 of the CYFEA is triggered. It requires the Director to bring an application to the court for either a supervision order, a guardianship order (temporary or permanent), an order returning the child to the child’s guardian or, if the child is ordinarily resident in another province, for an order placing the child in the custody of the child welfare authorities in the province where the child lives.

This application is on notice to the child’s guardian and must be heard not more than 10 days after the child is apprehended. [ 40 ] At this stage of the proceedings, the parties have an opportunity to test the evidence adduced by the Director, present evidence on their own behalf and on behalf of the child and make submissions to the court regarding the best interests of the child.

Here the court would also have the opportunity to consider any other applicable sections of the Federal CYFA relating to the unique circumstances of Indigenous families and the importance of reuniting Indigenous children with their families and communities. [ 41 ]

Section 19, coupled with the requirements in

section 21 of the CYFEA obliging the Director to bring a further application on notice fulfill the procedural fairness requirements and satisfy the rules of natural justice: AP v Alberta (Child and Family Services) , 2020 ABQB 634 at para 22 . [ 42 ] It should be noted, however, that notwithstanding the existence of legislated authority to make an application for an apprehension order on an ex parte basis , ex parte applications should never be routine.

Conferring the ability of the Director to proceed on an ex parte basis does not alleviate the Director of notice obligations where the best interest of the child does not, on balance, require the apprehension application to be made without notice or where the best interests of the child warrant notice .

Judges and justices of the peace hearing apprehension applications should be satisfied, based on the evidence, that an ex parte application is required in the best interests of the child. [ 43 ] In the present case, the information the Director had at the time the decision was made to proceed with an ex parte application for an apprehension order was set out in an affidavit sworn on January 2, 2020. There were several aspects of that evidence of particular concern: Two of the children were the subject of an apprehension order granted on December 9, 2019.

There was a significant history of domestic violence between the mother and father of the Child requiring the involvement of Children’s Services. In July 2019 the father of the Child was under the influence of methamphetamine and he assaulted the mother of the Child. The children were present. The mother of the Child applied for and was granted an Emergency Protection Order against the father of the Child. Despite the existence of the EPO the mother of the Child continued to have contact with the father of the Child.

The police also observed uncapped needles and empty bags consistent with the storage of drugs in the basement where the children’s toys were also found. Children’s services staff attended the home on December 9, 2019 to execute an apprehension order in relation to two of the children. At that time, they observed drug paraphernalia throughout the house. On January 2, 2020 Children’s Services learned that the mother of the Child was not following the safety plan that had been put in place and that she had gone to reside with her mother on the Tsuu T’ina Reserve.

This home had not been approved as part of the safety plan due to ongoing involvement with Children’s services at that location. [ 44 ] When it was discovered that the safety plan was not being followed, the Director formed the opinion that the Child was in need of intervention and the application for an apprehension order was made at 3:35 p.m. over the telephone. [ 45 ] The mother argues that the facts as presented by the Director to the Justice of the Peace were one sided and that if she had had an opportunity to attend the hearing for the apprehension order she could have explained what was going on and the apprehension could have been avoided.

[ 46 ] While this argument has merit and may well be true, the risk of a delayed apprehension in the case of a child truly in need of intervention must be avoided even at the cost of a possible unnecessary apprehension. As explained by the Alberta Court of Appeal in T , at para 18: Nor should one overlook the difficult position in which the Director, and thus the child care workers, are often placed.

If they elect to seek an apprehension order and later, at a full hearing on the merits, the evidence reveals that, despite initial concerns, the order should not be confirmed, they risk being accused of having done too much too early. And if they elect to do nothing pending further investigations and a child suffers harm in the interim, they risk being accused of having done too little too late. ... [ 47 ] The CYFEA and the Federal CYFA both put the best interests of the child ahead of the interests of the guardian, family or cultural community.

It is better to risk an unnecessary apprehension, which can be quickly corrected given the legislated process in place, than risk harm coming to a vulnerable child.

The Federal CYFA does not alter this risk allocation when First Nations, Inuit or Métis children or youths are involved. [ 48 ] Based on the information available, particularly the continued contact between the mother and the father, the exposure of children to drug paraphernalia and, most importantly, the apparent failure of the safety plan that had been put in place, the Justice of the Peace did not commit any errors in granting the apprehension order on an ex parte basis. [ 49 ] The appeal of the apprehension order granted January 2, 2020 is dismissed. Heard on the 25 th day of March, 2021.

Dated at the City of Calgary, Alberta this 26 th day of April, 2021. Robert W. Armstrong J.C.Q.B.A. Appearances: Sallee Maxwell Legal Aid Alberta for the Appellant Michael Simon Alberta Justice & Solicitor General for the Respondent