BM (Re), 2023 ABCJ 233

In the Alberta Court of Justice Citation: BM (Re), 2023 ABCJ 233 Date: 20231103 Docket: CP901003212 Registry: Calgary In the Matter of the Child, Youth and Family Enhancement Act , RSA 2000, c C-12 And in the Matter of: BM, born August 2020; and CM, born December 2021 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. Decision of the Honourable Justice N.W. D’Souza [ 1 ] This matter concerns a Permanent Guardianship application for two children. BM born August 2020, now three years of age. The mother is AW, and the father of this child is an individual who has no involvement in this matter.

The second child is CM, born December 2021, now almost two years of age. The mother is AW, and the father of this child is OM here. [ 2 ] The child BM was apprehended on August 28 th , 2020. Initial custody was granted to the Director of Children’s Services on October 5 th , 2020. The mother, AW, was present. The father of BM was not. A Temporary Guardianship Order (TGO) was consented to by the mother on February 3 rd , 2021. The father of BM was not present, and his consent was dispensed with.

He has had no involvement with this child. [ 3 ] The TGO was confirmed by consent of AW on July 30 th , 2021, and has continued. On December 10 th , 2021, some five days after CM was born, he also was apprehended under the Child, Youth and Family Enhancement Act , RSA 2000, c C-12 ( CYFEA ). Initial custody of CM was granted to the Director on January 28 th , 2022. The mother, AW, and the father of CM, OM, were present and a hearing was held. Both AW and OM had counsel. [ 4 ] A trial had been scheduled for an application for a Permanent Guardianship Order (PGO) concerning BM for July 2022 for six days.

This trial was adjourned. New trial dates were scheduled for May 1 st , 2023, for six days, such being confirmed on August 24 th , 2022. Both AW and OM had counsel at the time. The father of BM was not present. [ 5 ] The two children, BM and CM, were joined on this application on February 23 rd , 2023, by the Court. It is noted that OM has been on the birth certificate of BM and that the biological father of BM has had no involvement with BM throughout his life. At trial, AW had the same counsel as she had throughout.

OM had, up to fairly recently, a lawyer himself, however, such relationship ended. [ 6 ] At the commencement of this trial on May 1 st , 2023, OM’s counsel appeared and applied to withdraw as his counsel, OM agreed and such was granted. OM advised this Court that he was retaining new counsel. The Director’s counsel advised that BM had been in care, up to this point, for some 977 days and CM had been in care for some 450 days.

The trial dates had been set since July 2022 for CM, such being adjourned once and a new trial being scheduled and confirmed in August 2022, and both children, BM and CM, were then joined together in this application in February of 2023, for this trial.

[ 7 ] OM sought an adjournment of this trial to get new counsel. This Court declined such given the time in care to date under s 33(1) CYFEA , being far exceeded for both the children herein and also given the fact that this trial had already been scheduled on one previous occasion and had to be rescheduled. OM advised that he had a potential lawyer retained and this Court gave him the opportunity to have this lawyer appear.

At the afternoon session, OM advised the Court that he had not actually retained this lawyer and this Court told him the matter would proceed. [ 8 ] AW’s counsel advised that AW would consent to the PGO application herein. On this Court’s inquiry of AW, after initially consenting to this PGO, AW then advised this Court that she could no longer consent. Accordingly, the trial proceeded. As to the father of BM, he was not present and the Director called Andrew Whitman, who has been the caseworker since September 2020. [ 9 ] Mr.

Whitman testified that he met the father of BM in October 2020, and a DNA test was done, and he is indeed the father of BM. He has had no involvement in the proceedings concerning BM. He did a statutory declaration in December 2020 saying he wanted to have no involvement in the proceedings herein. He was served with the application by the Director to change the TGO to a PGO and again confirmed with this witness he wished to have no involvement with BM. He was accordingly deemed not to be a guardian of BM in 2020 and has advised this witness that he “wishes to be left alone”.

The last communication with him confirmed he did not want to participate in the proceedings. To date, it is believed he is transient and possibly between Saskatchewan and Alberta. On considering the BM inquiry and given the time in care for BM, his presence is dispensed with and this matter will proceed without him. [ 10 ] The trial proper commenced with the Director calling Andrew Whitman as the first witness. Witnesses Andrew Whitman [ 11 ] This witness is the current caseworker and has been involved since September the 7 th , 2020.

He provided three documents, all consented to and now marked as Exhibit 1 – Ongoing Assessment Report (OAR) for BM, August 28 th , 2020 to October 13 th , 2021. Exhibit 2 – Safety Assessment for CM, December 6 th , 2021, and Exhibit 3 – the Ongoing Assessment, October 14, 2021, to April 11 th , 2023. [ 12 ] His review of the file is that AW gave birth to BM in August 2020. In January 2019, the father of another child of AW (‘A’, a girl) found AW holding a pillow over this child (‘A’)’s face. AW was charged criminally and after a trial, was found guilty.

She was sentenced to seven months’ jail for assault with a weapon. [ 13 ] After AW was released from the Edmonton Remand Centre, she then gave birth to BM. The Director moved to apprehend BM, and such was denied at that time. A safety plan was developed with AW in that she would not be left alone with BM. Supports were given to AW through Assured Services, along with OM, as OM was now in a relationship with AW. This support lasted for approximately 18 days before the supports broke down. There were four separate police interventions over domestic complaints between AW towards OM.

OM was scratched by AW and BM was “shaken”. An apprehension for BM was granted and BM was physically apprehended from AW who was on her way to Rocky Mountain House. The RCMP pulled her over and apprehended BM from her car. [ 14 ] This matter was proceeded with the view by the Director for a possible TGO concerning BM so that Children’s Services could work with both AW and OM to assist them in ensuring that BM would be safe. OM and AW advised they were married, and OM had assumed the role of a father to BM.

The Director felt that there was still a considerable risk to BM and sought a parenting assessment to determine the level of potential risk. Such was conducted by a Mr. Dave MacLeod. It was felt that both AW and OM should do the assessment, although OM was not a guardian to BM, but was considered to be in a co-parenting role with AW. [ 15 ] The couple moved from AW’s mother’s residence to their own residence and were being supported by OM’s income. At a meeting with Children’s Services, they told this witness that they were married and said that they “were going to do this together”.

At this point, AW was now pregnant with CM. When CM was born (December 2021), Children’s Services’ expectations were that a safety plan and a support network would be put into place by AW and OM, and that Children's Services would provide a Level 2 visit supervisor to be present at all times to ensure that both BM and CM would be safe when the children were visited by the parents. [ 16 ] At the time, OM was included in the visits and AW was working through her Probation Order from the conviction, with a psychiatrist through the Forensic Assessment Outpatient Service (FAOS).

The in-home support worker – Misty Swimmar – assisted the parents in the Circle of Security program. It was hoped that both AW and OM would provide and maintain a safety network which included OM’s father and two friends. [ 17 ] The parenting assessment was completed and the conclusion of same was that AW and OM were “dependent parents”, that would need supports in a “highly involved way”. Children’s Services determined that both would need someone who could reside with them in the home so that they could focus on parenting skills and ensuring that the children were kept safe.

There was, however, a lot of instability in their home, several police visits over possible domestic violence between the two of them, and attendance by the fire department over gas-powered tools being present and unsafe and, additionally, carbon dioxide (Co2) was also detected in the house. Additionally, there was now a large dog in the house which raised concerns. Further, there was also a concern over AW having a seizure disorder and possible suicidal thoughts. OM was working consistently out of town and he got AW this dog to keep her company. Then AW became pregnant with CM.

It appeared that the responsibility for AW was increasing – she had suicidal ideations and on one occasion, a welfare check was done and AW was found to have locked herself in the closet and said that she “wished to die”. There was “lots of crises in the home”. [ 18 ] The dog that OM had got for AW was a large animal and was hard to manage. It also had “behavioural issues” and had nipped a couple of the workers when they had attended. The parents were asked to keep the dog separate when the visits were being held, but they did not. The home was additionally noted to be “filthy and messy”.

It was described as a “cluttered home”.

[ 19 ] The parents had difficulty focussing on the children and both were constantly on their phones “bickering” with each other. On a number of occasions, AW was felt to be “provocative” towards OM, an example being given that she became agitated with OM over a diaper change and she threw the diaper at him; then when this was raised with her, said that she was “just joking”. [ 20 ] Despite a lot of coaching in parenting with a goal of having the children returned, there continued to be a lot of instability in the home. The police had also attended on several occasions on allegations of “screaming in the house”.

AW had advised that this had come from a “horror movie”. Another incident was where AW was kicked in the stomach by OM and it was related by them that this was during sexual activity between the two of them. [ 21 ] Children’s Services wanted AW and OM to move into a home where there would always be someone present who could give them support and assistance and to generally provide stability. In May 2021, AW and OM moved in with a cousin (‘K’), as she had a good routine and assisted them, however, within five weeks, this broke down due to fighting between AW and OM and issues with the dog.

The concerns continued that AW and OM were also not being faithful to each other and both had accused the other of infidelity. A lot of this was due to OM working out of town and being gone for several days at a time and “this was all very distressing to him”. AW and OM were also alleging that ‘K’ was drinking and possibly using drugs in the home. [ 22 ] It was also noted that OM was now “hoarding” and leaving items to store on the property. AW and OM then moved to his aunt’s residence, GM and TM, and this apparently brought a calmer environment.

They were there for several months and GM and TM offered them both good support. Issues then resumed when CM was born: again, instability in the home, relationship issues, cleanliness and the dog. Additionally, OM’s various purchases were leading to potential hazards. For example, many car tires and batteries were left around the place. [ 23 ] Based on the parenting assessment, the expectation was that there needed to be a third party present for support, to AW specifically, in parenting. AW and OM were seen as being “dependent parents” and they needed a support system in place that could be “sustained”.

However, there was no consistency in the support network. Both AW and OM struggled to accept feedback from their support individuals. They both felt that “they know better and didn’t need” such a support network. Both presented as being “dismissive of feedback concerning the safety of the children”. Both AW and OM would “lash out” against the people in the network.

A number of people in the network felt that there was too much conflict and they no longer wished to be involved. [ 24 ] The caseworker was being criticized and a plan was made to have meetings at 1:30 PM every Friday where AW and OM could voice their complaints and concerns. An in-home support worker, Misty Swimmar, was involved and her role was to ensure that both were connected to any community resources, for example, “Moms and Tots” for AW. Ms.

Swimmar identified the file as being “complex” and the “inability of the parents to focus”. [ 25 ] After the parenting assessment, both AW and OM were found to be eligible for Persons with Developmental Disabilities (PDD) funding. Both AW and OM were not interested and the application was never filed. OM, because he was working, felt he did not need any assistance and felt it was “humiliating” to him. His position was “let us have a shot at independent parenting”. AW was initially engaged but “ultimately followed OM’s lead”.

Both parents wanted to end the support workers involvements as they felt that the feedback was “not relevant”. This has been an ongoing concern with both parents. [ 26 ] The visits with the children have been supervised and have been mostly consistent. OM was, on occasions due to his work, not involved and he “kind of came and went” for the most part. AW was involved in parenting. After CM was born visits became less consistent. AW and OM moved to an acreage outside of Airdrie and this became a concern for Children's Services as neither AW or OM drove.

It also became more difficult for their main supports, GM and TM, to assist. [ 27 ] When this witness visited the residence (basement suite), a firearm and various car parts were noted to be lying around. Due to the condition of the residence and both parents struggling to focus, it was decided by Children's Services to have the visits with the children to be held in the community and the hope was that both could, without distraction, then be able to focus on the children and the children’s needs specifically. It is noted that this primarily concerned AW, as a lot of the time OM was working out of town.

The visits, however, dropped off by up to half, and OM was “rarely seen” and AW and OM were, when they were together, usually late for the visits. [ 28 ] When AW and OM moved to the acreage, the visits with the children decreased noticeably and there were a lot more cancellations.

The parents maintained and continued to stress that “they were adults, they needed privacy and needed no help – they did not need or want to live with anyone” as supports. [ 29 ] A meeting was held between this witness and AW and OM to review the MacLeod assessment and they both were angry at the assessment and AW said “Andrew, as long as you take my kids, I’m going to keep making them”. At the weekly 1:30 PM call, AW and OM, when there, were often angry and it was difficult to deal with “their issues and they seemed to blame others. There was no personal responsibility and it was always someone else’s fault”.

Both, although knowing the concerns from Children's Services, did not “seem to believe the concerns”. Temporary care plans have outlined the reunification plan and such have been updated on a quarterly basis. (Exhibit 4). These were up to CMs birth and when CM was born, it was anticipated there would be a support and safety network in play. GM was involved, and it was expected that AW and OM would work with GM. GM physically moved in and would sleep on a cot in the living room. Both AW and OM, however, were frustrated that they had GM living with them. [ 30 ] CM was born and went home two days later.

Two days after that, AW became stressed and there was a dispute as to whether OM was, in fact, the father of CM. AW indicated that she wanted to leave, and she left with the infant at 9:00 PM for a walk. It was at least minus 20 degrees at the time, and this was some four days after AW had given birth. The after-hours team, along with the police, attended and a safety plan was suggested and reviewed, but OM said “I don’t have to follow that. Get a court order”.

Not surprisingly, this Court notes that CM was apprehended on the following day. [ 31 ] Since CMs birth, the continued concerns were with the domestic disharmony between AW and OM and additionally, AW had said that when she was separated from OM, that he had used cocaine. Services by Children's Services were continued with a Level 2 worker (Donna) coaching AW in parenting skills. AW’s probationary term had ended and she was being assisted in counselling. Natural

supports were identified, although such were tenuous as both AW and OM tended to “lash out” at them. OM additionally was often out of town working, and it was difficult to do anything productive with him and AW. [ 32 ] OM’s sister, BMc, and GM were and tried to be present regularly to help AW, but there was often conflict. OM’s mother, PP, backed off as OM would “hold her responsible for his upbringing”. [ 33 ] When AW and OM moved to the acreage, access to the children reduced substantially.

In November 2022, the parents, without discussing same with Children's Services, moved to Salmon Arm, British Columbia (B.C.), saying that there were no supports in Alberta. The move to B.C. was, as they said, because there were “six healthy individuals there that can help them”. Since November 2022, there has been no ability for Children's Services to substantiate what the parents’ situation really is in B.C. [ 34 ] On CMs birthday, he was sent to B.C. to see his parents. On February the 7 th and 8 th , 2023, both came to Calgary to have an access visit with their children.

The visit in Calgary was not at GM’s home due to conflict with her. Both AW and OM had accused her of abusing the children as CM had a diaper rash. They called the RCMP demanding an investigation, and CM was assessed and a diaper rash was confirmed. AW accepted this and OM was “too busy to attend the meeting”. [ 35 ] Another child, ‘J’, has now been born to AW and OM in B.C. In December 2022, it was learned that this child is now in care with the B.C. Ministry of Children’s Services and is under the equivalent of a Temporary Guardianship Order in B.C.

From information received, the B.C. support network is not “six people”, but a couple in their 70s who want to be involved but cannot be a part of the supportive caregivers. Additionally, there is also a great grandmother of CM, and now ‘J’, that may be of assistance. Both AW and OM feel that the Alberta concerns do not apply as they are now in B.C. [ 36 ] A meeting was held with AW and OM on May 1 st , 2023, regarding the safety plan and it was learned that OM was now working in the logging industry and AW had a job at a large retail store in B.C.

Children's Services felt that more time was needed as nothing had changed with the protection concerns and what had been the pattern was not sustainable to date. Children's Services (Whitman) felt more time was needed to look into their situation regarding a supportive network in B.C. Contact was made with the maternal grandmother who said she could not continue due to conflicts with AW and OM. [ 37 ] The Director is seeking a PGO application because of the above. The concern to date is that if the children were to be returned to AW and OM, that there would be “constant chaos and crisis”.

Both have moved some seven times over the last 977 days, and the on- off dynamics between AW and OM were continuing. The conflict still continues between them. [ 38 ] It was felt that AW and OM lacked any insight over the concerns and were dismissive of same. Their position remained the same, which was “leave us alone with our kids and we will be fine”. It was felt that Children's Services was “no further ahead than we were two years ago, and that the time is only prolonging how long the children are in foster homes”.

It was felt that the children do not deserve any more instability and chaos in their lives. [ 39 ] Since BM was born in August 2020, and apprehended shortly after birth, AW has never been left alone unsupervised - the direction from Children's Services was that AW always needed to be supported in her parenting. There was also a report of BM being injured, however, it was determined this was not the case and was unsubstantiated. There was also incidents of AW and OM getting into physical altercations with each other, one being shortly after BM was apprehended.

This witness acknowledges that while in care, BM was in a car accident and that AW made it clear she wanted a different car seat. She was concerned about BMs safety. It was noted from this witness that the car BM was in was involved in an accident due to road and weather conditions and at the time, BM was asleep and did not wake up. It is clear that AW was concerned about her child. [ 40 ] On occasions, the visit supervisors have reported that it appeared that AW may have been “hung over and drunk”.

AW advised that she was not and did not drink, so same is unsubstantiated and this Court makes no finding therein. [ 41 ] As to the rifle propped outside the door at the acreage, AW said it was a neighbours. This witness accepts that there was a lot of conflict between him and AW and OM, and he was asked why a new caseworker was not assigned, and he responded that he thought it was important to have “continuity” and did not see this as affecting his ability to work together with AW and OM. OM asked if this witness knew he (OM) had a “learning disability from lack of help from his parents”.

This witness replied that OM had told him he did not want his education records disclosed, however, a pediatrician remembered OM when he was around four years of age and a Dr. Wainer (phonetic) had told this witness not to leave OM alone with children. [ 42 ] Both AW and OM have told him about their plan now they are in B.C., however, OM has “made it clear he (Mr. Whitman) is not to have anything to do with the people in B.C.”.

Asked by OM if he had a concern that OM would hurt one of the children, this witness replied that there was a concern and referenced an incident where, allegedly, OM had pinned his niece to the floor and this witness also felt that OM had a temper as it related to the domestic incidents with AW. [ 43 ] On redirect, this witness again states that AW and OM have made it clear that as they are now in B.C., that B.C. is separate from Alberta and that the child protection concerns in Alberta are not relevant in B.C.

Both have made it clear they did not want him to contact anyone in B.C. with the exception of consent recently given (early April) to contact the maternal grandmother, SB, who will become a witness later, on behalf of OM. BMc [ 44 ] This witness is the sister of OM and the aunt of CM and BM. She has done many activities with the children. The children, CM and BM, had lived in her home as a safety plan from Children's Services. Both OM and AW wanted to have more access to their children and wanted her to go against Children's Services to see their children outside of the visitation schedules.

OM would call her numerous times and AW would text her – she felt harassed by them. Additionally, she felt threatened as AW would text her saying she was “coming to get my son”. OM also would threaten to send this witness’ children’s father over to her home.

[ 45 ] This witness testified that this was because she had had “one of OM’s children in her home”. She had BM in her home for around 10 days in February 2022, and felt because of the constant calls and texts from OM and AW, it was very difficult to look after BM. Both AW and OM would accuse her of “starving BM”. [ 46 ] She (BMc) relates an incident from April 2022, where CM was in her care and CM was not well. CM was taken to the hospital and there, OM and AW did not want her present and she felt she was “being pushed away by them”. She received printed information from the hospital regarding CMs care and AW took it from her as it was “only her (AW’

s) information”. Another incident she relates is when she, CM, and her daughter, AM, were together and OM got upset with her daughter (AM) over her not calling him “Uncle”. OM got upset and physically pinned AM, his niece, to the floor. AW and OM were asked to leave her home. Despite those occurrences, this witness says that there have been some “really good moments”, and she knows that OM and AW love the children. [ 47 ] On cross-examination, she is very clear that she recognized AW’s voice on the many calls to her.

It was suggested to her that AW did not take the hospital information concerning CM, and this witness testified that AW texted her a message saying, “I took it”. [ 48 ] OM asked her if she had ever seen AW or him (OM) physically harm the children. She responds by saying yes, as it meant AW and OM not being there for the children, neglecting them and moving out of province. She feels that her brother, OM, has not provided a stable environment for his children. Donna Cornacchia [ 49 ] This witness is a Level 3 worker for in-home parenting through Assured Community Services.

She initially was involved as a supervisor for visits when BM was born. He was returned home and then apprehended, at which time she began as a Level 2 worker and then became involved as a Level 3 worker to the family. As a Level 2 worker, she assisted in parenting, coaching, supporting and assisting in cueing the parents. As a Level 3 worker, there was more “hands on and direct parent teaching”.

Exhibit 5 are the supervised reports (20 reports from August 16 th , 2020 to October 7 th , 2021 concerning BM and three visits supervised with BM and CM from March 2022 to May 31 st , 2022). [ 50 ] This witness’ first impressions were that neither parent had a lot of experience in parenting. They were instructed to limit and watch the amount of food intake being given to BM. She worked on AW taking instructions and there seemed to be a “disconnect between AW and BM”, and although AW loved BM, it was difficult for AW to “express nurturing and caring”.

It was hoped that AW would demonstrate more consistency and follow through in her parenting. A lot of “family drama” was involved and AW was told she must “focus more on the child”. [ 51 ] It was felt that AW should not be left alone with the child. OM was not involved. Over time, there was seen to be “little change or success with AW, both AW and OM could demonstrate the ability to do things in parenting, but they were unable to sustain” what had been learned. They both had “the ability to do things in the moment, but on the next visit, skills had to be reiterated to them”. AW was reluctant to accept any advice.

OM would be present and if he was focussed, his ability was good, however, he was oftentimes distracted by other things. She noted that AW and OM seemed to have a “on/off relationship that was quite toxic and volatile at times, and that OM was sometimes not involved”. [ 52 ] When AW was pregnant with CM, OM was “in and out”. It seems that OM was “less and less involved with the children”. He became a “removed and disengaged parent”. It was noted that because of this, AW was struggling with raising the two children. This became more so when CM was born, as OM was mainly focussed on earning money.

He was told to focus more on the visits and the children and not his income. This was not followed through by OM, as he was constantly on his phone or when he was away working, AW was “constantly on her phone talking to OM”. They were both told they needed to focus on the children and not to be “constantly distracted”. [ 53 ] An example given was that during one visit, BM fell and hit his head. OM was on his phone and did not notice this.

When CM was born, their aunt, GM, was present and encouraged AW to focus more on nurturing with CM, and it was noted that AW appeared more nurturing with CM but struggled with BM. It was felt throughout that AW could “demonstrate ability, but it was not sustained and was not consistent from one visit to the next”. AW’s response to this witness depended on how good the relationship was at the time with OM.

OM, himself, was reluctant to engage, as he “felt he had all the skills needed to raise a child (CM), and it was felt that OM could not, however, OM was “not willing to accept feedback”. [ 54 ] OM and AW would regularly fight and argue with each other, and this witness saw several times when this happened that such would affect the safety of the children. [ 55 ] When AW and OM moved to Airdrie (May 2022), a lot of visits were missed. From May to October 2022, out of 17 visits, AW attended nine and OM attended three.

When AW was asked about the missed visits and the importance of visits with the children, she replied, “They’ll survive and it is what it is”. She did not seem to understand the impact on the children when she missed visits. It would be reiterated that AW needed to be more consistent and AW would agree but “would never change”. [ 56 ] The last report was from February 11 th , 2023, and the concern noted here was that both AW and OM were now in B.C. and that the visits were few. It was of concern that CM was “shy to OM” and it was clear that the children needed their parents’ attention.

AW and OM seemed focussed on “what has everyone done to my children”. AW was not receptive to the children’s cues and had not much engagement with the children. She was told that she needed to “spend time with them”. The concerns were “the same and same has been the same since the beginning in 2020”. It was a common theme throughout the reports. Both AW and OM had to be constantly reminded to pay attention and engage with the children.

Neither appeared to understand or engage in this with the children. [ 57 ] On cross-examination, this witness again stated that AW had “the ability to learn, but not the sustainability”. When asked if she had ever seen AW harm the children, the reply was that on one occasion, she had concerns as AW had “yanked BM up by his arms”. She was concerned that BM’s arm might come out of its socket, so much so she advised the caseworker of this. OM, on his questions,

maintained that “his role was the income and AW was to be home looking after the children”. This witness said that AW was effectively a single parent and that he (OM) had to make the time with the children as “family comes first”. It is clear that OM had a very select role which did not have the children or AW as a priority. Misty Swimmar [ 58 ] This witness works for Closer to Home and her role is to work with parents. She began working with the parents in November 2020 to assist them in learning about child development, safety goals and child nurturing. AW was engaged during the virtual visits with BM.

As to OM, he was “sometimes there and when there, was on his phone”. [ 59 ] From November 2020 to July 2022, there remained “ongoing goals” to be met by the parents. The concerns were still around safety – for example, she had to “prompt them to take the dog away” when the children were present. She ultimately closed her file as there was “less consistency” and although supposed to meet once bi-weekly, a lot of times AW was sick and there was limited communication, and in July 2022, there were no visits.

She felt that AW’s engagement was reducing and that the relationship between AW and OM was, at times, conflictual and other times happy. There were regular “disagreements” between the two. [ 60 ] This witness acknowledges that AW did reach out to her for help and assistance. As to the work module for nurturing parents, AW completed “about 75 percent of the book”. This Court finds that AW did engage and reach out, however, the progress made became less and less consistent over time. While she ended her involvement in July 2022, it would have been possible to keep AW in the program longer.

Again, OM was, on occasions, not there and when he was, his engagement was limited. David MacLeod [ 61 ] This witness prepared a parenting assessment and after review and consideration, was qualified as an expert in clinical psychology specializing in parenting assessments. There was no issue to him being qualified and this Court is well familiar with his expertise. He has been qualified in this area in excess of 200-plus times and Exhibit 6 is his curriculum vitae. [ 62 ] Exhibit 7 is this witness’ parenting assessment. His focus was concerning BM and the safety concerning this child.

AW had a recent history of violence towards another older child, for which she served jail time and the concern was over what type of care could AW give with the domestic tension existing between her and OM. The concerns were the relationship between AW and OM, any mental health challenges, lifestyle, addictions and the cognitive understanding of child rearing and any supports available to both parents. [ 63 ] His information from AW concerned any potential family supports. It also disclosed some mental health struggles and some addictions, and this was taken from AW’s FAOS assessment on her criminal charge.

As to OM, he was estranged from his family and he said his relationship with his family was “toxic”. [ 64 ] Various tests were done with AW which indicated cognitive issues and that she qualified for certain services, for example, Assured Income for the Severely Handicapped (AISH) and PDD. While no score would automatically disqualify as a parent, it gave a good idea of how much learning a person can do and whether such could then be implemented. He opined that AW, given the tests and

interpretations, could not “independently raise a child”. This Court notes that the reference is to one child. Her parenting would be dependent on others and where AW was “teachable, there were limits as to how much she could learn”. [ 65 ] Both AW and OM presented as a “team” and the question was if OM would be enough of a support to AW. Even with OM being present full time, there were “substantial limits on the skills both AW and OM could develop”. [ 66 ] At the time, BM was very young and his needs were simple, but this witness opined that as BM grew, he would have more needs.

On the MPPI test (Minnesota Multiphasic Personality Inventory), he interpreted that AW had impulse issues and would easily dysregulate emotionally. He felt AW had “classic borderline personality”. He also felt that AW had a schizoid personality pattern, post- traumatic stress disorder (PTSD), and felt she would “blank out the world” in times of crisis. As to the child abuse potential inventory, he was unable to interpret same, as he felt AW was “answering defensively”. While he felt AW was “a confident parent”, she was “off the charts and very high in adult relationships”.

This indicated that AW had “all the challenges she could deal with in relationships without adding a child into the situation”. He felt strongly that AW could not independently raise a child. [ 67 ] Concerning OM, the same tests were administered and it was clear that OM had “substantial cognitive limitations” and would also qualify for AISH and PDD. He felt OM was not interested in any suggestions as he was employed and did not feel it was his role to look after the child. He felt it was AW’s responsibility and he was the breadwinner.

OM saw himself as a support for AW and saw the responsibility of raising a child as being AW’s. From the child abuse potential inventory, one “thing jumped out was that OM was rigid in his thinking”. OM came across as more demanding, and this witness felt OM could be at risk of “becoming a harsh parent”. While this cannot be predicted, it was “worrying” for the future. OM’s stress level test showed that he was “high in this regard”. All the

interpretations indicated that OM could not also independently raise a child. [ 68 ] While OM and AW may have the ability to “base level parent”, it was clear that they would both need supports to address the ongoing concerns of their ability to look after one child safely and appropriately. Their respective cognitive limitations were a factor in further limiting their parenting ability.

The lack of supports was also an issue and both AW and OM felt that Children's Services was at fault and they felt that there was no need for Children's Services’ involvement and that it was “AW and OM against the world”. [ 69 ] Further, this witness opined that if their relationship became unstable, a child (BM) could be at risk if he was exposed to this. The concern was that neither AW or OM could parent alone, and even together as a couple, the risk of the relationship’s stability would put any child at risk. Even if the relationship was continuous, just having OM’s support of AW would not be enough.

If the relationship broke down, then “it could be very bad potentially for the child”. The supports needed would have to be “pretty substantial and readily available to them long term”. This was not a “short-term situation” and as the child got older, the supports would have to be more consistent and substantial. He felt that both AW and OM had all the challenges they could handle as adults. He did not feel that either

could be primary caregiver of a child but should have some involvement with the children. [ 70 ] In conclusion, there was a safety risk posed by AW given her conviction of harming her other child.

Both AW and OM were teachable but were unable to sustain what they had learned as to child development and neither could independently parent and would need long-time and long-term appropriate in-home supports, and there were potential issues that any instability in the relationship and any stresses, could present a major risk that could be catastrophic to the safety and best interests of any child. [ 71 ] There would be a serious concern if the support system was not consistent and not long term.

Both AW and OM needed the support system to be continuously present to alleviate any risks and concerns with the child. [ 72 ] On cross-examination, he stressed that while the assessment was done by videocalls with the parents, he had no concerns with both parents understanding the tests and the instructions thereon.

He does acknowledge that the assessment is now two-and-a-half years old and may not be as valid as it was in 2020, however, he still does stand by his opinions as being valid. [ 73 ] OM focussed on his learning disability in his questions to this witness, and this witness testified that the testing reflected OM’s learning disability. It indicated that OM had challenges. OM presented his “action plan” which this witness said sounded positive as long as it was consistent and maintained.

OM felt that there was a discrimination against him and AW and the witness responded by saying that the only thing “governing decisions concerning a child is their best interests and you having a child is in your best interests (to OM), but this is not what governs a child’s best interest”. [ 74 ] On redirect, this witness maintains that AW’s mental health would not change his opinions since the assessment was done. In fact, AW’s issues can and could deteriorate if something happens and that AW’s issues have “been a reality for her for a long time”, and it is not likely to change.

The “truest test here is what is in real life now and not an office-based test”. This witness maintains that change needed would be for AW and OM to have a consistent and reliable support network and without such, neither could independently parent the children. Such stability with this support system network would have to be shown to be maintained over a “long period of time” for any change in his

interpretations and opinions. [ 75 ] The report (Exhibit 7) as been reviewed thoroughly and considered herein by this Court. [ 76 ] The Director closed its case. OM’s Case GM (June 4 th , 2023) [ 77 ] This witness is the aunt of OM and she lived in the same neighbourhood as him in the past. It appears that she had contact with OM at family get togethers. A few weeks before BM was born, he got in touch with her asking her for help as a “new dad” role. He asked her if she could visit. When Children's Services became involved, she initially visited and was “getting to know AW and BM”.

Then OM and AW moved and connections between them became less and less. She would support OM and AW if BM was safe and there was a “safety network and such”. She has never seen OM physically hurt any child … “not physically”. She was asked if she was scared of Children's Services, and she replied she was not. [ 78 ] On cross-examination by AW’s counsel, she said she was not planning to adopt BM and CM and that no long-term placement with her and her husband was in place. She visited OM and AW in B.C. in April 2023 at a supervised visit with the children and then at the office and everyone “seemed happy”.

There were two visits and OM was not present at the second visit, as he was away working. [ 79 ] OM’s potential witnesses have been scheduled for later and AW began her case.

AW’s Case AW [ 80 ] AW testified that she has four children and OM is the biological father of BM and now ‘J’ who is currently in care in B.C. and was apprehended shortly after her birth. [ 81 ] She has been with OM for a little over three years and she has never seen OM physically hurt the children. [ 82 ] While in care, BM was with the foster carer and involved in a car accident during the winter, and she begged the caseworker (Whitman) not to let BM be driven without a proper car seat.

BM was not hurt. [ 83 ] She relates that when BM was born, there was a concern of an injury to his clavicle and it was later determined that this was due to the birth defect and nothing that she had done (see Exhibit 8). [ 84 ] AW testified that she has a “pseudo seizure disorder, stress, anxiety over high conflict, and sees flashing lights”. She is on medication to deal with these issues. She last had a seizure and was in hospital in late 2020/early 2021. To date, she sees a family doctor in B.C. and is on “seizure medication, has asthma, and on anti-depressants due to this legal situation”.

Her only mental health diagnosis is an adjustment disorder and depression. [ 85 ] In January 2019, she was convicted of assault (267(

a) CCC). She spent seven months on remand status and received a sentence of 45 days - or 90 days taking into account her remand time. Her ex-partner, the father of ‘A’ (victim of assault), got a Parenting

Order for ‘A’ and she has not seen this child since November 2019 (Exhibit 9 – Parenting Order). When asked about the trial, she said that she did not testify as “at the time, people had threatened her”. She was found guilty and convicted. [ 86 ] It appears to this Court that despite this finding she is now denying she was guilty of the assault on ‘A’. As to the parenting assessment, she said it took over a year to commence the assessment (Exhibit 10 – September 29 th , 2021, letter from her counsel). As to CM’s apprehension, OM was not present and she was told she would be arrested if she did not comply.

The Apprehension Order was left on her kitchen counter. [ 87 ] Initially GM was supportive of her and they had a good relationship, but after CM was taken into care, she felt that the relationship with GM “switched” and that GM became a “worker for Children's Services”. She felt that she could no longer have a relationship with her. She presents a series of messages from GM to her (Exhibit 11) that shows that she was contacting GM and asking about the child.

She also presents (Exhibit 12) messages from a visit agency (Assure) about visits that she says were not approved by the caseworker (Whitman), her point being that Children's Services were failing in their role of reunifying the family. She feels that Children's Services has failed her. [ 88 ] Exhibit 13 is a text from OM’s mother – her point of this is to show that OM’s mother’s mental state meant that she (OM’s mother) could not care for her children. She relates that OM’s side of the family is toxic. She feels that Mr.

Whitman has been forcing her to put “unhealthy people as supports and the supports always break down”. She had now resided in B.C. since November 2022, and her plan for supports are OM’s grandparents (BB and SB), OM’s aunt and uncle VD and MD, and a “amazing landlord, Susan, who is a friend of the grandparents”. She and OM lived in a new house and it has three suites. They have the front suite. She attends Bingo, meets friends, and is working and feels she could “call on them for help”. [ 89 ] The latest child, ‘J’, since November 15 th , 2022, has been in care and she is now six months old.

AW feels this child was apprehended based on the “Alberta case and Whitman’s call to B.C.”. Access to this child, ‘J’, is sometimes supervised and she does not know the outcome relating to this child. There is a conference scheduled for the end of June 2023. She feels and strongly believes that CM and BM belong with her and OM and they “have done everything asked of by Children's Services except get live-in supports”. She feels this is only being asked because of her “low cognitive levels”. [ 90 ] Her landlord, Susan, comes and helps and is “always there if needed”.

Her home has beds for CM and BM and when ‘J’ comes home, she would be in AW’s bedroom. There is a fenced back yard, lots of parks nearby, including a water park, and it is a short walk from the hospital and daycare. She has a spot lined up for the daycare. OM “works away” and she is the head cashier, team lead at a large retail store in town where she “runs the show”. [ 91 ] Exhibit 14 presents a letter showing OM is working for an oil company, and he works three weeks on and one week off. He is the “provider” and he buys “things, gifts and healthy foods and plays with the children”.

OM stepped in to be the father of BM and provides for them, and he is a “good dad”. AW is aware OM has a learning disability, but feels this does not affect his parenting ability, as he has taken a lot of “high-end courses” for his job. [ 92 ] She does not agree with the MacLeod report that she needs supports and cannot parent alone. She states that she “came from [being] a drug addict to a loving mother”. The last time she “used” was in 2018 and she has done “rehab two times”. [ 93 ] She feels she has done everything asked of her by Children's Services.

While on probation for the assault, she attended courses on domestic violence and did parenting after separation and a number of voluntary courses (Exhibit 15 – Certificates). [ 94 ] She and OM left Alberta due to “a lot of stress” and she felt that in Alberta, OM’s family was “toxic”. Since the move to B.C. in November 2022, she feels like this “stress has lifted” and now it is different. She feels they have “their freedom back”.

She keeps current with her children’s health and strongly feels that “Whitman has pushed her away” and that “Whitman has basically taken her family away and is excluded from 95 percent of the stuff”. It is clear to this Court that AW feels that the caseworker has been very hostile to her and OM. [ 95 ] On cross-examination of AW, AW agrees that the caseworker encouraged her to get supports with the purpose of getting BM back into her care. She maintains that it was “his fault” that she could not get her children back.

She relates that the worker in B.C. involved with her new baby, ‘J’, (Brandi Rolin) has been “charged” with taking children away without court orders, but this worker “seems to be okay” and she feels that there is “hope in this corrupt system”. This Court notes that there has been no evidence of Ms. Rolin being charged with anything. [ 96 ] She has provided a safety plan to the B.C. caseworker and has told her about her supports, as mentioned. She is having visits with ‘J’ and says that B.C. has no concerns about these visits being unsupervised.

She feels that ‘J’ will be returned to her and OM soon, and there is a meeting with the B.C. caseworker coming up at the end of June 2023. [ 97 ] AW says her relationship with OM is stable and while they do have disagreements, they both take “cooling off” periods. [ 98 ] When CM was born, GM helped her out but this changed when she and OM moved to Airdrie. The visits lessened as it was harder for her to come into Calgary to attend the visits. Since she and OM have moved to B.C., the access has become less to the children. GM sends her pictures of CM.

Asked if their move to B.C. has impacted BM and CM, she does not believe this to be the case as she feels that BM and CM “will have a better future in B.C.”. [ 99 ] OM asks her about their move to B.C. and she responds that the move has improved their relationship together. She says she has seen OM “grow stronger as we prepare for the future when the kids return”. She feels that OM has “helped her clean up her act” and they “have a lot of support” and does not think they need a live-in support system now or in the future.

She believes that the caseworker, Whitman, has tried to split her and OM up and he has told her “multiple times she should leave OM”. She acknowledges that it is difficult for her when OM is away on work. OM asks AW if it would be easier if he worked closer to her in B.C. and she agrees but also acknowledges that she would be the main carer while OM is responsible financially.

[ 100 ] AW maintains that the only reason ‘J’ was apprehended in B.C. is because Whitman sent information out to B.C. in November 2022, but also says that the B.C. caseworker (Rolin) is supporting a return of ‘J’ and would also support her if BM and CM were returned to her. PP [ 101 ] This witness is OM’s mother. She says that BM came into her life around October 2021, when AW was pregnant with CM. She relates that her relationship with her son, OM, has been and was “challenging” and she helped him when he was younger with his “learning disability”.

At the time when OM was younger, she was a single mother and although OM “helped out”, he also “stole $1,500 from her account” and almost got her fired from her job. She “did her best” with OM and his sisters. She feels that AW has “high emotional volatility” and feels that BM and CM cannot be a part of this and sees BM and CM’s greatest need is “their number one safety”. [ 102 ] OM asked if she ever made allegations against him and AW about abuse, and she relates that it was only towards a niece when she witnessed OM “pinning this niece, AM, to the floor”.

At the time, OM’s sister, BMc, was caring for CM and AW called her about this incident with AM. AW was “afraid as OM was banging on the door”. [ 103 ] This witness, although in a difficult situation being called by OM, is clear that she feels that both BM’s and CM’s safety is paramount, and she feels that this could be at risk if the children were left alone without outside and continuous supports.

No doubt from her evidence, she has had her struggles with her own mental health, however, she accepts that OM’s upbringing was not the best and sees that this has impacted him such that she has concerns about OM and AW raising BM and CM without supports and supervision. Her honesty is noted in this regard. HL [ 104 ] She is OM’s paternal aunt, and she denies that she and her husband are seeking to adopt the children, BM and CM. OM came to live with her in 2019, as he was homeless. She had a “good relationship with him”.

In 2019, OM’s mother (PP) made allegations about OM, and he was placed in a “psychiatric hospital”. She describes the relationship between OM and his mother as “tumultuous”. OM wanted his mother to “get help” and there were allegations that OM had broken into her house. She and her husband drove to Calgary and picked up OM after his hospital discharge as they did not want him to be homeless. He lived with them until he met AW. Since then, OM has rebuilt his life. He has been steadily employed since August 2019.

She states that “at some points, she did not approve of AW, but OM was his own man and could make his own choice”. [ 105 ] This witness relates that OM’s upbringing was difficult as his parents separated and it caused challenges for OM, and she feels that OM “does well when he has structure and guidance”. She has tried to support OM, but “wants to stay away from the drama in Calgary, so keeps away”. She was asked about supporting and living with OM and AW, and she says that “there is way too much dysfunction and drama in the family and coming together as a family is not feasible”.

Because of this, she told the caseworker that she wants to “take a back seat to any visits with BM and CM”. She further thinks that with stability and guidance, OM would do “really well”. [ 106 ] She feels that with OM and AW moving away from Calgary to B.C., it was “to get away from all the family drama”. Her concern is that the children are being “damaged by the situation” and that Children's Services does not really understand this family. She feels the children should be returned and it is time the system gives them (OM and AW) the opportunity to parent the children “ with supports in B.C .”. This last

part is emphasized by this Court. [ 107 ] She feels that there are supports in B.C. and that OM and AW have “taken a lot of positive steps in B.C.”. This Court finds that this witness is obviously close to OM and AW and believes that Children's Services in Alberta has not worked and that it has been too invasive and she feels that Children's Services is against them. It is also clear that she does not really know what has transpired over this entire file, and she wants the best for OM.

She acknowledges that “most of the family is adamant that OM and AW cannot raise the children on their own, however, both OM and AW have “the right to try” and thinks “OM and AW should be given a chance”. [ 108 ] On cross-examination, she admits that the family in Calgary is “not healthy and there was daily drama”. She has not gone out to B.C. and it clear this witness has no knowledge specific as to the situation involving ‘J’ and OM and AW in B.C. While this witness wants the best for OM and AW, she feels that they will both need “structure and guidance”.

There is very little of assistance with this witness’ testimony. SB [ 109 ] SB is OM’s grandmother and appeared by Webex. She and her husband live in B.C. and she testified that she and OM were estranged for many years due to “family dynamics”. When OM and AW moved to B.C. in November 2022, they met in person. She assisted him in finding a nice house, a basement suite, and she has also been involved in the supervised visits with the new baby, ‘J’. Asked if she has seen OM and AW parent ‘J’, she replies that she has but only for very brief periods during the supervised visits.

She has met CM once at Easter at a visit at the Ministry’s office and it was “not a natural situation and it was overwhelming for CM as there were so many people around”. [ 110 ] She believes what Alberta Children's Services (Whitman) has done concerning BM and CM is “wrong in not letting them (AW and OM) be parents and feels it will disrupt the children as long as they are kept away from their parents”. She believes that OM’s relationship with his mother (PP) has been and continues to be harmful to OM.

She does not feel that OM and AW abandoned BM and CM by moving to B.C., as “they had to make a change and start over”. The home OM is now in is safe for children and that OM and AW had to get away from the “toxicity” and have made a lot of progress since their move.

[ 111 ] On cross-examination, it was established that she lives about 10 minutes walking distance from OM and AW. Both she and her husband are retired and would be “able to go over and assist if called”. She is hoping that ‘J’ is returned to OM and AW and is willing to be a “supportive grandparent”. She tells the Director’s counsel she began a relationship with OM and AW in the summer of 2022. She has never met BM. Her understanding of why BM and CM were apprehended in Alberta is limited and believes it was over “AW getting charged with harming a child”. She does not understand “why BM and CM were removed”.

She has not seen any “written reports regarding AW’s crime or anything that they have done wrong regarding the children”. [ 112 ] A lot of her information has come from OM. She feels that OM “never had anyone showing or teaching him to be a family, as he never had a good family life”. Again, she believes that OM’s family had a lot of influence as to how Children's Services has behaved and the decisions they have made. This witness is supportive of OM but has limited knowledge and information as to the issues concerning BM and CM or ‘J’.

She has only recently become involved with OM and based on her information, mostly from OM, clearly believes that both Children's Services in Alberta and OM’s toxic family are the cause of this entire problem. She wants OM to be given a chance to parent without any realizations of what the underlying concerns are. Her evidence is based on what OM has told her; however, this Court finds that her knowledge of the issues is very limited. She believes OM, as that is the only information she has received. WB [ 113 ] He is OM’s grandfather and the spouse of the previous witness, SB.

He testified that AW has found a job in B.C. and as OM is working, she is “alone a lot but keeps herself busy”. He agrees that the children need a stable home and family environment and without such, it is “damaging to kids”. At least “75 percent of the time, he is present when AW has visits with ‘J’”. He and his wife will continue to be supportive of her (AW). [ 114 ] Again, this witness has very little understanding or knowledge of the underlying concerns surrounding BM and CM and even ‘J’.

Although it is clear that he feels AW and OM should be given the opportunity to try and be the parents for ‘J’, his involvement has been limited and mostly in a controlled, supervised visit situation between AW and ‘J’. He is willing to assist and support AW and OM. Brandi Rolin [ 115 ] Ms. Rolin is on the Family Services team with the Ministry of Children and Family Development in British Columbia. She has been the worker involved with ‘J’ since December 2022. ‘J’ came into care in B.C. on November 17 th , 2022, and is under an interim custody status to the Director in B.C.

There is an upcoming court date (June 20 th , 2023). [ 116 ] The substantive application concerning ‘J’ is for a Temporary Custody Order for three months and this, it appears, is the Alberta equivalent of a Temporary Guardianship Order. Trial dates are then to be set. Both AW and OM are not consenting to this Temporary Custody Order. Trial dates are anticipated in late 2023 or in early 2024, and until then, ‘J’ will remain in care of the Ministry. There has never been a suggestion that ‘J’ was being returned to the parents imminently.

This Court, from the evidence heard of AW and OM, their position is that ‘J’ is to be returned imminently. This is clearly not the position of this witness. [ 117 ] It is felt that OM needs to “specifically demonstrate engagement with services and the witness and a parenting commitment, and that AW continue working with them and more engagement with services”. Both parents have identified supports in the form of the grandparents (SB and WB), and most recently, OM’s aunt ‘V’. In the last five weeks, AW has engaged with a family support worker and “demonstrated some progress”.

As to the grandparents, they are supportive but “not in a place to take on a caregiver role”. This witness testified that “at this time, both parents have to have someone in their life committed to overseeing their parenting on a regular basis”. [ 118 ] Access to ‘J’ is currently scheduled three times a week and as of June 8 th , 2023, is supervised in their home with a family support worker present. AW attends a support program called Strong Start for three hours on Wednesdays. The visits with ‘J’ are supervised except the last 30 minutes are not. AW has been consistent, although has missed a few visits.

OM has been sporadic with the visits as he is at work and when he does “attend, he is for the most part engaged”. [ 119 ] AW and OM have both been invited to the Strong Start program and ‘J’ is brought to the office by the foster parent and the parent is allowed 30 minutes unsupervised with the child. AW is participating. This witness is aware that BM and CM are in care in Alberta and if they came to B.C., both boys would be placed in a foster home with the direction by B.C. being the same as is currently in place for ‘J’, although this may not be certain.

AW, during her visits, generally meets ‘J’s needs, however, OM, although “responsive to ‘J’, needs and requires prompting”. [ 120 ] From this witness, this Court finds that it is by no means certain that ‘J’ is to be returned to OM and AW at present. It appears, given the work still needing to be done to ensure ‘J’s safety, that a TGO equivalent (Temporary Custody Order) will be sought and that such initially will be for three months and can be extended, if necessary, for up to a period of one year. ‘J’ has identified through AW as being of Metis heritage and apparently has been registered as such.

It is noted that neither BM nor CM have been similarly identified but read further on. B.C. is prepared to work with AW and OM; however, it is certainly very unclear as to what will happen concerning ‘J’ at this time and of greater uncertainty, what will happen to BM and CM if this Court declines a PGO in Alberta. MM [ 121 ] This witness is OM’s father and he has no concerns when AW has had visits with BM and CM, but does not know much about AW’s criminal past.

He believes that the caseworker (Whitman) has “tried to follow a plan” and that OM needs to work with Whitman, but it is difficult as OM’s work takes him out of town regularly. He believes that the children should be with their parents but “if the parents need support, they should take the assistance”. Again, this witness, like the other personal witnesses, feel that the parents should be given another chance, but they need support which, if offered, both AW and OM should utilize.

OM [ 122 ] He testified that he is an oil drilling worker and was the “youngest drilling supervisor”. He has been doing this for six years. He met AW when she was pregnant with BM and he bought “everything for this child”, and his boss has encouraged him in the relationship with AW. When BM was born, AW’s criminal past was mentioned and an assessor “showed up and told him not to leave the child alone with AW”. The assessing team came to their house the next day due to these concerns.

AW told him that BM was being apprehended and the caseworker (Whitman) told him he was “not a party as the father of BM, but could offer supports for AW”. He was told by Whitman that if he did a parenting assessment, the child would be returned to AW, and he did complete the assessment. He stresses that he has had a “learning disability”. He also acknowledges that he became angry with Whitman when he was told he and AW needed live- in supports.

They had AW’s cousin, ‘K’, move in but were unaware she had a “drug addiction” and they saw ‘K’ “doing cocaine”, so this support broke down. [ 123 ] OM was, during this time, working out of town. AW then moved to his Aunt GM for several months and then he found a place in McKenzie Towne. He was back and forth from his job up north. The caseworker told them they still needed to have a live-in support with them.

When CM was born, he was working out of town and AW phoned him after the birth telling him that Whitman had “shown up in the delivery room and said that Children's Services was going to be involved in your life for a very long time”. OM was clearly upset and felt that Children's Services had lied to him and to them throughout. [ 124 ] OM had to leave shortly after CM was born due to a fatality at his worksite. OM’s aunt was present to help AW, and he then heard that CM was going to be apprehended and he “guessed that AW had some sort of a breakdown”.

He heard that AW decided to “take a walk outside, and it was minus 16, with the child” and CM was then apprehended. He came back to Calgary and was very upset as he had “only met CM for five days”. Whitman told him that he would get “court orders” and he feels that he is “standing up to a bully and a monster” who should not have taken “my kid”. [ 125 ] At the safety planning meeting, it was clear to him that CM would not be returned to them “unless they have someone live in” with them. He was having access to CM, as the child was with his aunt GM.

He is clear he does not understand or know why CM was taken away and feels it is because he has “stood up for his child”. [ 126 ] OM and AW had to move as their landlord was selling the house, and they found a farm outside Airdrie and GM helped them move. OM said, “there was no drama out there at this farm and he continued to work up north”. He further states that “money was never an issue”. When he came back, AW told him she was pregnant. OM was upset as they “already had two kids taken away”. He went back to work realizing that AW needed more support and he told her about his grandmother (SB) in B.C.

His plan was to “get a support network with no family drama”. [ 127 ] He went to B.C. and told his grandmother he was “ready to meet her”. They met SB in B.C. and he told her “everything about BM and CM being ripped away from them”. He told AW they should move to B.C. as there was “no family dynamics and no toxicness [sic]”. [ 128 ] At the end of October 2022, they moved to B.C. A house was arranged (Exhibit 18 – photos of the house, bedrooms and food in the freezer). If BM and CM came back to them, they would have enough room and he feels the house would be safe for them.

Before the move, he “didn’t want to tell AW as he didn’t want another child (‘J’) apprehended”. This Court is unclear as to the meaning of this and finds that OM wanted to keep this hidden from everybody. He further did not want to “talk to anyone in B.C. about their move”. This appears to be his concern, that ‘J’ would also be apprehended. This Court finds that OM was extremely secretive about this move in order to negate against any Children's Services involvement involving the pending birth of ‘J’. When ‘J’ was born, he told his grandparents who then came to the hospital.

His aunt, GM, was also told but nobody else was told as he “didn’t know who to trust”. [ 129 ] When ‘J’ was born, “all of a sudden a social worker came” and he believes Whitman told the authorities in B.C. and felt it was because of his “low cognitive levels” and Whitman not liking him and AW. He acknowledges that he “still needs work to do for parenting and will give up his job” if necessary. He has made a lot of money and has a possible job lined up in the logging industry where he would be home in the evenings and can help out and be an “active parent”.

He wants to be given a chance, as he is a “first time Dad” and feels that everything is the fault of Whitman. [ 130 ] Asked on cross-examination as to why he was not regularly participating at visits with the children, he responds that his “work

schedule is being used against him”. When asked why again his participation with the Director was limited, he replied “I don’t recall”. It was put to him that the main goal of Children's Services before reunification was for him and AW to create an arrangement of having someone live in their residence for a period of time to ensure safety was no longer an issue concerning BM and CM. OM replied that when he and AW lived with his aunt GM for “three months”, this satisfied this requirement. He feels that “this goal was completed, but Whitman did not keep his side”.

He maintains that “Whitman goes on a power trip every time he stands up to him”. He still believes the children were apprehended due to “allegations by toxic family members” and that this is a “vendetta against him”. [ 131 ] He clearly does not agree with somebody living with him and AW as supports; from his replies, it is clear that he has a personal animus towards the caseworker and various family members and that it is “all made up, as Whitman enjoys going to homes and taking kids away” and he wonders “if Whitman has his own children”.

Asked why BM appears not to know him due to his sporadic visits with him, he responds that there is “no stability and he did not abandon the kids by moving to B.C., he moved for a more stable future”.

He further maintains that when he met AW, he has kept her “off her drug addictions”. [ 132 ] OM closed his case. [ 133 ] It is clear from listening to OM’s evidence that he accepts no responsibility and, in fact, blames everybody other than himself for his lack of engagement in the process concerning BM and CM and also now involving ‘J’. [ 134 ] This Court asked counsel whether BM and CM could be transferred to the B.C. Ministry. Under our legislation, the CYFEA . S 124.1(

a) would possibly enable this if a Permanent Guardianship Order (PGO) was granted in this matter.

The Director’s Position [ 135 ] BM has been in care since August 10 th , 2020 to date, June 16 th , 2023, some 1,022 days. CM has been in care from December 5 th , 2021 to date, which is some 553 days. The concerns are regarding ongoing domestic instability, mental health and lack of supports, and also concerning is AW’s past criminal conviction concerning her first daughter, ‘A’, and evidence of OM also assaulting his niece, AM. [ 136 ] The MacLeod report is clear that both AW and OM cannot independently parent these children on their own.

The services offered and the evidence heard from the Level 3 worker and Ms. Swimmar clearly show that AW and OM cannot sustain the skills outlined by the witnesses and the children would be at risk. AW did not work well in times of crises and OM did not actively participate. Engagement by both was not consistent or regular with the support workers. It is clear that OM would not accept that they needed anybody to live in with them and assist them in parenting.

The MacLeod assessment is clear (page 14) that neither AW or OM can or are able to depend and rely on each other – they are unable to independently parent and will need an outside person to live with them and assist in all matters of parenting. Just AW and OM’s own needs were difficult enough for them to manage themselves. [ 137 ] The move by AW and OM to B.C. in November 2022 seriously impacted Children's Services’ ability to facilitate their access to BM and CM and to continue services with the two of them.

The supports offered by AW and OM in B.C. are not sufficient, as these individuals, while wanting to be involved, cannot do so in a “daily caregiver role” to AW and OM. This is not enough to address the safety issues and there needs to be a concrete support system in place, more engagement, and more independent work done by both AW and OM before these children could potentially be returned to them. [ 138 ] The parents are no further ahead than they were at the very beginning of this matter. In fact, the Director submits progress has been somewhat backwards since OM and AW moved to B.C. in November 2022.

The main supports (GM and TM) are no longer available. OM has continued to show no insights in anything he has done and he continues to blame everyone else. [ 139 ] Counsel for AW says a TGO is the most appropriate result and she maintains that a lot of the issues concerning AW were due to the toxic relationship between AW and OM and his family in Alberta. To add to this, the conflict that occurred between AW and OM and his aunt, GM, and uncle, TM, and counsel submits that the caseworker’s relationship is also toxic and that this has also interfered with the progress of this matter.

In short, although the caseworker has tried to do his job, it has not been a good one. [ 140 ] Now that AW and OM are in B.C., this is a fresh start and should enable a transfer of this matter to B.C. Counsel references the MacLeod report as being some two-and-a-half years old and the various scores and

interpretations could have been affected due to the family stresses to AW and OM and caution should be given to the results of this report. [ 141 ] Presently, by self-reporting, both AW and OM have improved their lives. It is acknowledged that this Court does not have jurisdiction to order a transfer of this matter to B.C., but this Court may give some direction which may assist in a future transfer to B.C.

Counsel also states that AW has self-identified as being Metis and of Metis descent, and under Bill C-92 , the Band/Nation has not been given notice and this may trump this Court’s ability to grant a PGO as not in line with Bill C-92 . This Court asked both counsel to do a brief concerning notice to the Metis Nation and its lack of same and its effect on the CYFEA . [ 142 ] OM’s position is that he has never hurt either BM or CM and is in a stable and loving environment.

He feels that neither child should have been apprehended and he believes the system has failed and that as a first-time father, he has not been given a chance. He deserves a chance and his four moves have shown he now has stability. He, himself, has shown stability in his employment and he makes more than enough money. He is willing to give up his job and stay home and work locally. He submits that if he was with someone other than AW, this would never have happened. He has a safety plan and is willing to work with Ms.

Rolin and while he has not been “really involved”, he is willing to quit his job and work with B.C. concerning his children. [ 143 ] On reply, the Director again advises this Court that any possible transfer of this matter to B.C. requires a PGO finding here (see s 124). As to the MacLeod report, there is no evidence to support that despite the scores and the age of this report, that MacLeod’s conclusions would be any different.

In fact, MacLeod reiterated that despite the above, his conclusions remain the same in that both AW and OM could not independently parent one child, let alone any children. [ 144 ] Further, from Ms. Rolin’s evidence concerning ‘J’, more progress is still required from AW and OM concerning ‘J’, before ‘J’ could be safely returned to them. [ 145 ] The issue of Metis identification by AW was addressed on July 24 th , 2023. The status of AW was not confirmed and this appears to be self-reporting.

AW’s counsel advises that it is possible to trace lineage through the Metis Nation and there is a central record depository in Ontario that traces Metis lineage back to 1901, however, such could take up to six months to establish. This Court, with counsel, adjourned the matter to hear what the caseworker has done concerning the notice to the Metis Nation. [ 146 ] On August 9 th , 2023, OM attended by phone and he advised that the Alberta Metis Nation has told him they wish to get involved, but are not willing to deal with the Director or with this particular caseworker.

This Court does not accept same as a blanket statement without anything further. It is felt by this Court that even with AW only self-identifying as Metis, notice should be given to the Metis Nation under s 12 of Bill C-92 . [ 147 ] This matter returned to court on September 13 th , 2023, at which time the Director advised that on August 9 th , 2023, the Metis Nation was notified. A letter was received on September 8 th , 2023. Both counsel agrees that the notice provision under Bill C-92 has been complied with.

OM was not present in person or by phone as he was “somewhere in the field fighting fires and is not available”. AW was present by phone and advised she would communicate to OM what has transpired this date. This Court finds and as such is agreed to by counsel that notice has been complied with.

[ 148 ] To amplify on the notice requirement this Court adds as follows: under Bill C-92 –

an Act respecting First Nations, Inuit, and Metis children, youth, and families assented to June 21 st , 2019. Notice must be given to an Indigenous governing body in any situation where a child is subject or potentially about to be subject under the CYFEA . The Metis Nation is somewhat different as it is possible to self-identify as a member of the Metis Nation. The Metis Nation of Alberta (MNA) has provided a definition of a Metis Nation citizen, such definition is accepted and followed by the Court because to do so otherwise would be to gatekeep the Metis identity.

However, a Court should not just accept every self declaration of being Metis. There must be some reliable evidence that suggests an ancestral connection and acceptance by the community. The threshold is not particularly high but there must be more than just an assertion of self identification. [ 149 ] In this case AW identifies the children as Metis. It is noted that ‘J’ in B.C. has also been identified as Metis and notice has been given concerning ‘J’. The MNA has an agreement in place with the Government of Canada which recognises it as an Indigenous governing body for the purposes of this legislation.

This Court felt that notice must therefore be given to MNA. Based on the letter received September 8 th , 2023, such notice has effectively been given. To date the MNA has not taken a position. [ 150 ] A question this Court has also considered is what, if any, remedy may exist if notice was or was not given. There is no remedy or procedure contained in the legislation for non-compliance with the notice requirement – however, in any event it is clear that not only under the CYFEA but also under Bill C-92 that what is paramount here is the best interest of the child.

Under Bill C-92 such is factored in with the Indigenous factors contained therein. Under the CYFEA such is factored in with the considerations under s 2. [ 151 ] Both a PGO application and s 12 under Bill C-92 are subject to the best interests and accordingly this Court would be bound by the same factors under both legislations. The interest, permanency, stability, and finality concerning the particular child would involve the considerations of respecting, supporting, and preserving the child’s Indigenous identity, culture, heritage, language, and traditions.

It is noted under s 10 of Bill C-92 that as with the CYFEA , the best interest of the child is the primary consideration in decisions and actions concerning the child. Primary consideration is also given to the importance of the child’s relationship with family and Indigenous group and in preserving cultural connections. There is no conflict between both legislations, in that, both have as their primary consideration - the best interests of the child. Furthering on the child’s Indigenous

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