MD v Alberta (Children’s Services), 2022 ABKB 863

Court of King’s Bench of Alberta Citation: MD v Alberta (Children’s Services), 2022 ABKB 863 Date: 20221229 Docket: 2203 20157 Registry: Edmonton Between: MD, CD Applicants - and - Minister of Children’s Services, Children’s Services, Mickey Amery Respondents Corrected judgment: A corrigendum was issued on January 12, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. Corrected judgment: A corrigendum was issued on January 11, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. 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. _______________________________________________________

Memorandum of Decision of the Honourable Mr. Justice N.J. Whitling _______________________________________________________ I. Introduction [ 1 ] On December 22, 2022, the Applicant, MD, filed an Originating Application Habeas Corpus Ad Subjiciendum and a supporting Affidavit seeking an order restoring custody of her daughter to herself. The Applicant’s daughter has been apprehended by a Director pursuant to the Child, Youth and Family Enhancement Act , RSA 2000 c C-12 (“ CYFEA ”) and in accordance with certain orders issued by the Provincial Court of Alberta.

The Applicant’s pleadings also ask that all ongoing CYFEA applications respecting her daughter be dismissed, that Children’s Services be found to be a vexatious litigant, that publication bans in the Provincial Court be set aside, and that criminal charges be brought against certain persons. [ 2 ] Given that this Court is required to hear and determine habeas corpus applications as a matter of high priority, this matter was set down for a hearing date of January 6, 2023, and was immediately reviewed by me.

The purpose of this initial review was to determine whether or not it is necessary to conduct a further review of this proceeding pursuant to the Court’s Civil Practice Note No. 7 (“CPN7”) in order to evaluate whether the application should be struck out pursuant to r. 3.68 of the Alberta Rules of Court , AR 124/2010 . II. A Court-Initiated r. 3.68 Application [ 3 ] As emphasized in Jonsson v Lymer , 2020 ABCA 167 at paras. 43-48 , this Court ought not to routinely initiate its own applications against the interests of the parties before it.

Ours is a litigant-driven adversarial system and it is essential that judges not descend into the arena of conflict. In my view, this point takes on added importance in the context of proceedings where an individual’s liberty is at stake. [ 4 ] In the case at bar, there presently exists no request from the Respondents to strike out this proceeding pursuant to r. 3.68. In my view, this Court ought only to commence such application on its own initiative in exceptional circumstances. [ 5 ] However, in this case, I find that such exceptional circumstances are present.

This proceeding was filed on December 22, 2022, and is set to be heard on January 6, 2023. Given the intervention of the holidays, it is at best doubtful that the Respondents would have any practical ability to bring a r. 3.68 application prior to the scheduled hearing date.

Additionally, the unusual nature of the relief sought in this proceeding, such as the Applicant’s request for an order directing that criminal charges be laid against certain persons, raises immediate concerns respecting its propriety. [ 6 ] I therefore conclude that the exceptional circumstances of this case make it appropriate to proceed with a court-initiated review of this proceeding in accordance with CPN7 and r. 3.68. III. Factual Background [ 7 ] The following brief procedural background is reflected in the materials contained in the Applicant’s Affidavit.

I emphasize that the Respondents have not yet had an opportunity to file a record in response to this matter, and it is not presumed that the Applicant’s materials are comprehensive. [ 8 ] It appears from the Applicant’s materials that the Applicant’s daughter was first apprehended pursuant to an ex parte Apprehension Order dated December 1, 2020, granted by the Hon. Judge T.K. Davis of the Provincial Court of Alberta.

Subsequently, on December 7, 2020, the Director filed a Notice of Application on notice to the Applicant seeking an “initial custody order” pursuant to s. 21.1 of the CYFEA , being an interim order pending the determination of an application by a director for temporary or permanent guardianship. A filed transcript indicates that that interim application was heard and granted by the Hon. Judge Shaw of the Provincial Court of Alberta on December 14, 2021.

The limitation period applicable to the Applicant’s right to appeal that interim order to this Court expired 30 days later: Court Rules and Forms Regulation , A.R. 39/2002, s. 5.1(3) . [ 9 ] More than 12 months have passed since the date of Judge Shaw’s interim order. The materials before me do not contain copies of any further applications, transcripts, or orders filed in the Provincial Court respecting this matter. In particular, the Applicant’s materials do not disclose that any temporary or permanent guardianship application by the Director was ever heard or determined by that Court.

The Applicant’s apparent understanding of the current situation is that her daughter’s custody remains governed by Judge Shaw’s interim order of December 14, 2021. [ 10 ] Although the Applicant’s arguments are lengthy and lacking in focus, her main argument appears to be that the Director’s custody of her daughter has been rendered unlawful by the passage of time since the total cumulative time during which her child has been in the care of a director without a permanent guardianship order exceeds the 12-month limit contained in s. 33(2) (

a) of the CYFEA .

[11] The Applicant also attempts to re-argue certain factual findings and conclusions reached by the Provincial Court in grantingthe aforementioned orders. In this regard, she alleges that a number of false statements were intentionally made to the Provincial Court inthe context of those proceedings. IV. Analysis [12] The primary relief sought by the Applicant in this application is an order directing that the Applicant’s daughter be releasedfrom the Director’s custody and returned to the Applicant’s own custody.

Applications of this nature do fall within the scope of thisCourt’s habeas corpus jurisdiction. [13] As R.J. Sharpe (now Mr. Justice Sharpe) explains in The Law of Habeas Corpus (Clarendon Press: Oxford, 1976) at pp. 168-69, habeas corpus was the common law’s remedy to determine child custody disputes. Although it has now been largely replaced bystatutory procedures, habeas corpus still encompasses proceedings in which a parent or other person alleges that a child is being illegallyheld in the custody of another party. And as D.A.

Cameron Harvey writes in The Law of Habeas Corpus in Canada (Toronto:Butterworths, 1974) at p. 25: Habeas corpus is unquestionably a means by which a child can be wrested from an illegal custody – be it, for example, in the situationwhere one parent has unlawfully dispossessed the other parent of the custody of a child or in the situation where the authorities pursuantto the relevant provincial child welfare legislation have for one reason or another had a child committed to the care and custody of achildren’s aid society or the like... [14] In cases of this nature, the courts will on habeas corpus consider there to be a sufficient deprivation of liberty even though thechild has freedom of movement and is not being restrained by actual physical force: Popperl v Popperl, (MB CA),[1982] 3 WWR 699 (ManCA) at p. 708, quoting Harvey, supra at pp. 25-26.

In the leading Canadian case of Stevenson v Florant, (SCC), [1925] SCR 532 at p. 542; aff’d (UK JCPC), [1927] AC 211 (PC), Rinfret J. adopted the followingpassage from Halsbury, The Laws of England (1909), vol. X, p. 52, para. 109 on this point: A parent, guardian or other person, who is legally entitled to the custody of a child, can regain such custody, when wrongfully deprivedof it, by means of the writ of habeas corpus.

The unlawful detention of a child from the person who is legally entitled to its custody, is,for the purpose of the issue of the writ, regarded as equivalent to an unlawful imprisonment of the child.

It is therefore unnecessary toallege, in applying for the writ, that any restraint or force is being used towards the infant by the person in whose custody and control itis for the time being. [15] In the context of habeas corpus proceedings addressing child custody issues, the courts have always exercised a somewhat“larger jurisdiction” than in other circumstances, in that they will not only order that a child be released from any illegal restraint but willalso exercise a discretion to determine the appropriate person to whom such a child’s custody is to be entrusted.

In Rex v Delaval (1763),3 Burr. 1436, 97 E.R. 913, Lord Mansfield pronounced what was later referred to as “Lord Mansfield’s rule” regarding this addedfunction: In cases of writs of habeas corpus directed to private persons, “to bring up infants”, the Court is bound, ex debito justitæ, to set the infantfree from an improper restraint: but they are not bound to deliver them over to any body nor to give them any privilege.

This must be leftto their [the courts’] discretion, according to the circumstances that shall appear before them. [16] It is this added aspect of the Court’s common law habeas corpus jurisdiction that is “somewhat analogous to” this Court’sequitable parens patriae jurisdiction: Stevenson at p. 542 citing F. Short and F. Mellor, The Practice on the Crown Side of the King’s Bench Division (London: Stevens & Haynes, 1908) at p. 313. See also: William S.

Church, A Treatise on the Writ of Habeas Corpus, 2nd ed. (Bancroft-Whitney Co.: San Francisco, 1893) at pp. 662-664. [17] Therefore, it does appear that this Court’s habeas corpus jurisdiction encompasses this proceeding, at least insofar as itincludes a request for an order directing that the Applicant’s daughter be released from the Director’s custody and returned to theApplicant’s custody. [18] However, even where habeas corpus jurisdiction is present, it should not necessarily be exercised.

In recent years, theSupreme Court of Canada has directed that a provincial superior court should decline to exercise its habeas corpus jurisdiction whereParliament or the legislature has put in place “a complete, comprehensive, and expert procedure” respecting the same subject matter:May v Ferndale Institution, 2005 SCC 82 at para. 44; Mission Institution v Khela, 2014 SCC 24 at para 55. [19] In Alberta, child custody matters are governed by legislation such as the CYFEA and the Family Law Act, SA 2003, c F-4.5.The CYFEA, under which the present matter has proceeded, provides that orders of the Provincial Court may be appealed to the Court ofKing’s Bench, and may be reviewed by the Provincial Court itself from time to time.

In R.P. v Alberta (Child, Youth and FamilyEnhancement Act, Director), 2018 ABQB 508, Henderson J. held that these statutory procedures constitute “a complete, comprehensiveand expert procedure” for the purposes of the rule in May and Khela, such that it was necessary to strike out a habeas corpus proceedingin which the applicant sought an order granting him custody of a child.

Much of the reasoning in R.P. would appear to be applicable tothe present case. [20] Regarding the additional forms of relief sought by the Applicant in her pleadings, habeas corpus applications are designed toaddress wrongful detentions and losses of liberty only. Alternative remedies such as damages, vexatious litigant orders, and theoverturning of publication bans are not available in this procedural context: R v Latham, 2018 ABCA 308 at para. 7.

V. Conclusions [ 21 ] Applying the legal principles summarized above to the present case, it is not apparent that the Applicant’s pleadings raise issues that are appropriately dealt with by way of habeas corpus .

Rather, it appears that these issues may be more appropriately raised before the Provincial Court of Alberta pursuant to the procedures created by the CYFEA . [ 22 ] If it is the case that the apprehension of the Applicant’s daughter continues to be governed by the order of Judge Shaw as the Applicant suggests, that order can now be revisited in the Provincial Court of Alberta given its interim nature and the passage of over 12 months’ time.

Alternatively, the Applicant’s concerns may potentially be raised in the context of an application by a director for a temporary or permanent guardianship order pursuant to ss. 31 or 34 of the CYFEA , or in the context of a review of any such order pursuant to ss. 32 or 35.1 of the CYFEA . [ 23 ] I therefore conclude that there exists a concern that the issues raised by this proceeding may not properly be determined by way of habeas corpus , and I direct that:

(1) The January 6, 2023, hearing date for this matter is hereby vacated;

(2) On or before January 13, 2023, the Applicant may submit written submissions of no more than 10 pages to the Court, to my attention, addressing: (

a) whether this Court ought to decline to hear and determine this matter by way of habeas corpus on the basis that the proceedings pending in the Provincial Court of Alberta pursuant to the CYFEA constitute “a complete, comprehensive, and expert procedure” for the determination of the issues raised in this matter; and (

b) whether the remedies sought by the Applicant other than the release and return of the Applicant’s daughter from the Director’s custody are available in the context of a habeas corpus application;

(3) The Respondents may, if they wish, submit written submissions of no more than 10 pages plus any relevant exhibits in response by no later than January 20, 2023; and

(4) After January 20, 2023, it will be determined whether or not this matter ought to be struck out pursuant to r. 3.68. Dated at the City of Edmonton, Alberta this 29 th day of December, 2022. N.J. Whitling J.C.K.B.A. Appearances: MD Self-Represented CD No Appearance Respondents No Appearance

_______________________________________________________ Corrigendum of the Memorandum of Decision of Honourable Mr. Justice N.J. Whitling _______________________________________________________ January 11, 2023 - Court name has been changed from Court of Queen’s Bench of Alberta to Court of King’s Bench of Alberta. January 12, 2023 - The restriction on publication notice has been added. The names of the applicants have been replaced with initials to comply with the publication ban. In the first sentence in paragraph 4, e. has been replaced with r.