BMNG (Re), 2021 ABQB 800

Court of Queen’s Bench of Alberta Citation: BMNG (Re), 2021 ABQB 800 Date: 20211006 Docket: AD01 30841 Registry: Calgary In the Matter of the Child, Youth and Family Enhancement Act And in the Matter of the Application by BMNG for an Adoption Order Regarding the Child AMZ Restriction on Publication Publication Permitted – 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. See the Child, Youth and Family Enhancement Act ,

section 74.1 . Identification Ban – 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. See the Child, Youth and Family Enhancement Act ,

section 126.2 . 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 . _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice B.B. Johnston _____________________________________________________ [ 1 ] BMNG seeks an adoption order for the child, AMZ. [ 2 ] The Director of Child and Family Services (the “Director”) consents to the adoption. The birth father, APMZ, does not object to the adoption. The child, AMZ, is in support of the adoption. [ 3 ] The birth mother, SF, opposes the application. If the adoption is granted she seeks ongoing access to AMZ.

Background [4] AMZ was born in November 2008. [5] On October 27, 2016 (“Placement Date”), AMZ was placed on a kinship care basis in the home of BMNG, who is AMZ’smaternal aunt and SF’s half-sister. AMZ has remained in BMNG’s home since the Placement Date. BMNG has four children of her own,two of whom are minors and continue to live with her. They are all AMZ’s cousins. [6] On April 24, 2018, AMZ became subject to a Permanent Guardianship Order (“PGO”) under the Child, Youth and FamilyEnhancement Act, RSA 2000, c C-12, (“CYFEA”) by Order of Judge O’Gorman.

AMZ, SF and APMZ were all represented by counsel atthat time. [7] As a result of the PGO, the Director is now the sole legal guardian of AMZ. [8] Judge O’Gorman also granted an Order for Access under the PGO. SF and APMZ were granted access to AMZ at the“discretion of the caseworker.” [9] On May 24, 2018, SF filed an appeal of the PGO. [10] Justice Bensler directed that SF’s appeal would be dismissed if she failed to file and serve her materials by February 12, 2019.SF did not file or serve the parties.

On March 12, 2019, SF’s application to restore the appeal was dismissed by Justice Labrenz. [11] On September 22, 2020, the Director filed, on behalf of BMNG, an application for an adoption under

section 63 of theCYFEA. [12] On January 15, 2021, SF filed and served the Director with a notice of objection. APMZ did not file an objection. [13] The Director filed an application seeking to exclude SF from testifying at the adoption hearing and reducing the timescheduled for the oral hearing. Justice Eamon denied the Director’s request on August 6, 2021. Justice Leonard granted an oral hearingorder on August 18, 2021. [14] The contested application came before me by way of a two day viva voce hearing. Pursuant to the oral hearing order, I heardevidence from SF and her psychiatrist.

The Director called a case worker with Child and Family Services. Issues [15] This application raises the following issues: 1) Does SF have standing to oppose the adoption? 2) Should the adoption be granted. Specifically

a) is BMNG capable of assuming and willing to assume the responsibility of being a parent to AMZ; and,

b) is it in AMZ’s best interests for the adoption to proceed? 3) If the application is granted, are there exceptional circumstances that require the granting of collateral conditions under the Court’sparens patriae jurisdiction?

Analysis Standing [16] The birth mother, SF, opposes the adoption. [17] The Director argues SF has no standing to oppose the application and should not be allowed to adduce any evidence. [18] In PK v JM (1990), 1990 ABCA 192 , 107 AR 145 (CA) at para 28, the Alberta Court of Appeal held that abiological parent who had maintained contact with their child was entitled to receive notice of an application for adoption.

Althoughsection 60(1) of the Child Welfare Act, the predecessor legislation to the CYFEA, only provided notice to a guardian and not to a birthparent whose status of guardian had been removed, the Child Welfare Act did not extinguish the right to notice: PK at para 16. [19] Section 64(1) of the CYFEA likewise provides that notice must be given to a guardian.

Notwithstanding that SF is not aguardian and there is no legislative requirement for notice, I find SF has a right to notice given her ongoing contact with AMZ. [20] Nevertheless, I find her status in these proceedings is limited. [21] Given the PGO terminated her rights to guardianship, SF’s standing is limited to addressing potential collateral conditions ororders under the Court’s parens patriae jurisdiction: Re New, 2017 ABQB 565 at para 12 and JSG v Alberta (Director of Child, Youthand Family Enhancement), 2021 ABQB 306 at para 59. This standing does not allow SF to oppose the adoption, but it allows her to

adduce evidence related to whether collateral conditions are appropriate. Application for Adoption Capability and willingness to assume the responsibility of parent [ 22 ] BMNG has indicated her willingness to assume the responsibility of being a parent to AMZ. The adoption files, the evidence of the Director and BMNG’s submissions demonstrate that she is more than capable of assuming this responsibility. Best interests of AMZ [ 23 ] SF raises concerns regarding the circumstances surrounding AMZ’s apprehension. She argues the emergency apprehensions should be revisited by this Court.

She also raises concerns with the granting of prior orders including the PGO. [ 24 ] This court is not able to reconsider the appropriateness of the prior orders. [ 25 ] The recourse for challenging the PGO was an appeal. I note that although the mother filed an appeal, it was struck. [ 26 ] The sole focus of this application is the appropriateness of the adoption. [ 27 ] Prior to a PGO, the priority is to reunite the birth family. Once a PGO is granted, the birth family no longer has a priority interest. The best interests of the child become paramount.

The issue of delay also becomes an important factor: Re New at para 21. [ 28 ] In considering AMZ’s best interests, I am guided by the factors in

section 58.1 of the CYFEA . [ 29 ] AMZ has resided with BMNG and her children since 2016. AMZ has had stability and continuity of care. AMZ has a strong positive relationship with BMNG. There is no doubt he has a secure place as a member of the family. [ 30 ] AMZ is almost 13 years old and is capable of forming an opinion about his wishes regarding his adoption.

AMZ through his counsel has expressed a strong desire for the adoption to be granted. [ 31 ] Based on the evidence, I find that the mental, emotional, spiritual and physical needs of AMZ are being met by his current placement with BMNG and will continue to be met in her care. [ 32 ] AMZ would be adopted by his maternal aunt. Her children are his cousins. AMZ has an ongoing relationship with his extended family and his birth father. He has continued to have contact with his mother. [ 33 ] I find that it is not in AMZ’s interests to delay this application.

An order for adoption will provide AMZ with stability and permanence. [ 34 ] I find the adoption is in AMZ’s best interests. Exceptional Circumstances [ 35 ] If the adoption is granted, SF asks this court to impose collateral conditions including prescriptive access terms. She argues that such terms would assist with her mental health struggles. [ 36 ] SF further asks that supervised access not be with members of her immediate family as they are triggers for her trauma and this adversely impacts her mental health. This concern was echoed by her treating psychiatrist. [ 37 ] I accept that a specific access

schedule may be in SF’s best interests. Indeed, I commend SF for her ongoing efforts to understand and address her mental health challenges. However, my focus in this application must be on, and is on, the best interests of AMZ. [ 38 ] I find that it is not in AMZ’s best interests to impose any collateral conditions. AMZ is almost 13 years old and based on the evidence before me, he is capable of making his own decisions around when and how he has contact with his mother. It is clear from the evidence that AMZ loves his mother deeply and wishes to have an ongoing relationship with her.

BMNG has demonstrated her commitment to ensuring that AMZ has ongoing contact with his mother and I encourage her to continue to do so. But AMZ is an active 13 year old boy with his own life and a specific access

schedule may create difficulties. I also have concerns that the mother’s mental health struggles make mandating access problematic. [ 39 ] As stated above, I strongly encourage the parties to facilitate SF’s ongoing access to AMZ in a manner that is in his best interests. It is clear the mother loves AMZ and wishes to have an ongoing relationship. She has been working hard to address her struggles with mental illness. As her psychiatrist testified, she is making good progress.

SF’s focus is working towards making her relationship with AMZ as strong as possible by learning how to address her mental health challenges. Conclusion [ 40 ] I find the adoption is in AMZ’s best interests. [ 41 ] The application for adoption is granted without any collateral order.

Heard on the 16 and 17 th day of September, 2021. Dated at Calgary Alberta this 6 th day of October, 2021. B.B. Johnston J.C.Q.B.A. Appearances: Ms. Jade Duong Counsel for the Director of Child and Family Services Ms. Tannis Naylor Counsel for the Child BMNG Self Represented Litigant SF Self Represented Litigant