JD (Re), 2023 ABCJ 256

In the Alberta Court of Justice Citation: JD (Re), 2023 ABCJ 256 Date: 20231129 Docket: CP901004790 Registry: Calgary In the Matter of an Application for Costs by the Parents of JD and OD Against the Director Under the Child, Youth and Family Enhancement Act , RSA 2000, c C-12 Between: CD and KD Applicants - and - Director under the Child, Youth and Family Enhancement Act Respondent Decision of the Honourable Justice S.E.

Lipton Regarding an Application for Costs Against the Director [ 1 ] On November 6 th , 2023, I heard an application for Initial Custody by the Director pursuant to s 21.1 of the Child, Youth and Family Enhancement Act , RSA 2000, c C-12 ( CYFEA ) on JD born 2021 and OD born 2023 (together, referred to as the Children). [ 2 ] The mother of the Children is CD (CD or the Mother). The father of the Children is KD (KD or the Father).

CD and KD are together referred to as the Parents. [ 3 ] An Apprehension Order on the Children was issued by this Court on September 29 th , 2023. [ 4 ] The Director’s witness at the Initial Custody hearing was Ms Mrdja. She has been a delegated caseworker for approximately five years. [ 5 ] Ms Mrdja testified as follows.

[ 6 ] The Director had historical involvement with the Parents in 2021 due to issues involving domestic violence and the condition of their home. Two Family Enhancement Agreements were put into place by the Parents’ caseworker at that time. The Mother went to counselling for her mental health and in-home support was provided by the caseworker. The Father refused counselling. The Director’s file was subsequently closed after the second Family Enhancement Agreement expired. [ 7 ] In September of 2023, the Director again became involved.

Ms Mrdja was advised on September 11 th , 2023, that police were called after an allegation was made that KD had assaulted the grandmother of the Children. [ 8 ] The grandmother had earlier recognized that the Parents’ home was a safety hazard. A cleaning company which had been hired to clean the Parents’ home refused after seeing the state of their home.

The grandmother and KD then went to clean up the Parents’ home which is when the assault allegedly occurred. [ 9 ] The police observed bruising on the grandmother’s arms. [ 10 ] The Parents’ home was in such poor condition that the police advised the Parents to vacate and live elsewhere. The home was in disarray, smelled of urine, and medications and power tools were within reach of JD. The house was infested with mice. There was also moldy food. Grime was present throughout the home. [ 11 ] The Father thought their home was safe.

The Mother claimed the grandmother had vandalized their home and this was why the home was in such a poor state. [ 12 ] The Mother denied domestic violence and claimed that KD was able to manage his emotions. [ 13 ] The state of the home in 2023 was representative of what the Parents’ home looked like in 2021. [ 14 ] Ms Mrdja spoke with staff at daycare and was told they have had concerns with JD’s hygiene since October of 2022. The smell of urine was prevalent, and the same clothes were often worn for multiple days at a time. The soles of JD’s feet were described as being black at times.

JD at times had dry feces on his body. JD often suffered from severe diaper rash with open bleeding sores. Staff at daycare would often change JD’s diaper and put on cream. The Parents were advised by daycare staff to take JD to see a doctor. The Parents were also advised by daycare staff that JD may be lactose intolerant. [ 15 ] The Mother blamed JD’s diaper rash on food provided to him by the daycare.

The Mother was advised by JD’s pediatrician and family doctor that his dietary issues were not a concern. [ 16 ] Ms Mrdja also received reports that extended family were concerned about the Father’s anger management issues including his tendency, at times, to succumb to blind rage. An allegation was made that on one occasion, KD had pinned the Mother to a wall while holding JD. [ 17 ] A safety plan was created with the Parents.

One of the critical terms of the safety plan was for diapers to be changed when necessary and for cream to be applied. [ 18 ] Ms Mrdja conceded in cross-examination that the Parents had satisfied all of the terms of the safety plan put into place after the incident in September and before the Children were apprehended. Their home had been cleaned. After repeated requests by Ms Mrjda, the Mother relented and finally took JD to a doctor. This doctor prescribed a steroid cream for diaper rash. [ 19 ] The Parents continued to deny the existence of domestic violence in their relationship.

The only current domestic violence allegation was the assault against the grandmother by KD. The grandmother subsequently withdrew her allegation against KD. [ 20 ] Nevertheless, Ms Mrdja applied for and received an Apprehension Order on the Children.

Her reasons for doing so included the following: JD had never been taken to a doctor to determine whether he was lactose intolerant; the Parents continued to deny the presence of domestic violence; the Parents denied their home had ever been a safety hazard; the Parents refused to work with supports in the community; the Father denied that he had anger issues and claimed he was forced to work with a caseworker in 2021; and, since the apprehension, neither of the Children showed any signs of diaper rash in foster care. [ 21 ] I accept the evidence of Ms Mrdja in both her direct testimony and responses in cross-examination. [ 22 ] During an adjournment of the hearing, all counsel consulted with their clients.

Ms Mrdja and the Parents agreed that the Children should be returned to the Parents’ care, and that a Supervision Order should be put into place for six months with terms including the number of times a caseworker would need to check on the Children during the duration of the Supervision Order. [ 23 ] The Parents then requested they be awarded costs against the Director as a result of the Director not being awarded custody of the Children at the Initial Custody hearing. Only counsel for the Mother provided me with a letter and case authorities.

Mother relies on the decisions in Alberta (Child, Youth & Family Enhancement Act, Director) (Appellant) and NL (Respondent), 2022 ABQB 120 ( NL ), and in WAM v Alberta , 2017 ABCA 14 , affirming 2016 ABQB 486 ( WAM ).

The Mother also relies on Rule 10.31 of the Alberta Rules of Court , Alta Reg 124/2010 ( Rules of Court ). [ 24 ] Until the decision of Hillier J in NL , the law regarding the jurisdiction of Justices of the Alberta Court of Justice to make cost awards against the Director was settled. [ 25 ] Neither the CYFEA , nor the CYFEA Regulation, Alta Reg 160/2004 , granted jurisdiction to this Court to award costs in child welfare matters. [ 26 ] The Court Rules and Forms Regulation , Alta Reg 39/2002 , did not grant jurisdiction to this Court to award costs in child welfare matters under the CYFEA .

[27] The Provincial Court Procedures (Family Law) Regulation, Alta Reg 149/2005, which granted authority to this Court toaward costs in family matters, specifically excluded this Court from awarding costs against the Director per ss 10(1) and (2). [28] Brooker J in TMM v PC, 2002 ABQB 416 held that costs are a substantive matter and not a matter of practice or procedure. [29] McIntyre J in Alberta (Child, Youth and Family Enhancement Act, Director) v LB, 2008 ABQB 468 held that the ProvincialCourt of Alberta did not have jurisdiction to issue a costs award against the Director in CYFEA proceedings as costs are a substantivematter and not a matter of practice or procedure. [30] Costs could only be awarded against the Director by Justices of the Court of Appeal and the Court of King’s Bench using theirinherent jurisdiction. [31] Hillier J concluded in NL that Justices of the Alberta Court of Justice could make a costs award against the Director in one oftwo ways. [32] The first way is this Court applying the doctrine of jurisdiction by necessary implication. [33] In paragraph 41 of NL, Hillier J stated that the effective administration of justice should not require a two-step process byparents to seek costs against the Director because of a number of factors including: the heavy workload and effective deployment ofresources in the Provincial Court; the limited resources of Legal Aid; the cost to parents of paying for transcripts on appeal; the relianceby appellate Courts on the assessment and discretion of Judges of the Provincial Court in their decision-making; and, the delay in fileclosure. [34] At paragraph 42 of NL, Hillier J stated: The decision of R v Cunningham, 2010 SCC 10 addressed (at para 18) the inherent jurisdiction of superior courts to control processes toensure orderly and effective function so as to prevent abuse of process.

The Supreme Court went on to state at para 19: Likewise in the case of statutory courts, the authority to control the court’s process and oversee the conduct of counsel is necessarilyimplied in the grant of power to function as a court of law.

This Court has affirmed that courts can apply a “doctrine of jurisdiction bynecessary implication” when determining the powers of a statutory tribunal: ... the powers conferred by an enabling statute are construed to include not only those expressly granted but also, by implication, allpowers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime ... (ATCO Gas and Pipelines Ltd v Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1SCR 140, at para 51) Although Bastarache J was referring to an administrative tribunal, the same rule of jurisdiction, by necessary implication, would apply tostatutory courts. [35] At paragraphs 45 and 46 of NL, Hillier J stated: 45 Obviously, jurisdiction by necessary implication must be constrained to the most egregious behaviour, bordering on lack of good faith... 46 ...

In

summary, I have concluded that the law does entitle the Provincial Court to award costs under the doctrine of jurisdiction bynecessary implication in this case ... [36] I am not aware of any decisions of the Alberta Court of Justice which have applied the reasoning in NL with respect to anapplication for costs against the Director utilizing the jurisdiction by necessary implication doctrine. [37] Hillier J stated that the second way in which costs could be awarded by this Court against the Director is pursuant to s 24(1) ofthe Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.),1982, c 11 (Charter). [38] At paragraph 70 of NL, Hillier J stated: ... Alberta has not proscribed the authority of the Provincial Court to award Charter relief under the Provincial Court Act. Regulationsunder the CYFEA are silent. The Director may be liable for costs in exceptional cases as determined by Queen’s Bench.

From theperspective of affected children and families, the availability of a remedy in child custody matters should not depend on the forum inwhich the Director pursues its position. [39] It is undisputed that a Charter right may be engaged in the course of child welfare proceedings. (New Brunswick (Minister ofHealth and Community Services) v G(J), (SCC), [1999] 3 SCR 46). [40] However, the party seeking a Charter remedy has the onus of establishing their claim on a balance of probabilities. (JJ(Re:),2022 ABPC 187). [41] I am not aware of any decisions of the Alberta Court of Justice which have applied the reasoning in NL with respect to anapplication for costs against the Director utilizing the Charter. [42] Were the actions of Ms Mrdja such that I should conclude that she acted in an egregious manner bordering on a lack of goodfaith, and that there are special or unusual circumstances that would justify a costs award against the Director? [43] I am of the opinion that Ms Mrdja was not acting in an egregious manner bordering on a lack of good faith when she applied

for an Apprehension Order on the Children. The evidence is unambiguous. Ms Mrdja had ongoing concerns with the Parents at the timeshe made the application for an Apprehension Order notwithstanding that the safety plan which had earlier been agreed to by the Parentswas satisfied by them. [44] As I also mentioned in Court, had the Mother not been repeatedly asked by Ms Mrdja to take JD to a doctor because of thediaper rash before finally agreeing to do so, the safety plan in its entirety would not have been satisfied by the Parents.

This being thecase, the Director would have met the legal test for initial custody of the Children as stated by Jerke J in Alberta (Director, Child, Youthand Family Enhancement ) v SB, 2022 ABQB 446. [45] At paragraph 39 of SB, Jerke J stated: The Court is not to inquire into whether the child is or is not in need of intervention – that is for the ultimate hearing. The Judge is toassess the reliable and credible evidence (still

summary in nature and not a complete or final determination) and determine whether,based on that evidence – if believed – there was some objective basis for the Director’s subjective belief that the child was in need ofintervention. [46] With respect to the Charter argument, notice of such an application is mandated by both common law (R v Dwernychuk,(1992) 1992 ABCA 316 , 135 AR 31 Alta CA)), as well as by the Constitutional Notice Regulation, AR 102/1999 (Notice). Filing and serving a Notice is generally mandated absent Crown consent. [47] The Parents did not file a formal Notice.

In his letter of November 17th, 2023, counsel for the Mother argued a Charterbreach without detailing specifics. The Notice is a prerequisite prior to seeking a remedy under s 24 of the Charter. On this basis alone,I would dismiss this argument. [48] In my opinion, I do not have an obligation to adjourn and invite further submissions. I have concluded that the Mother has notmade a prima facie case in proving a Charter breach. The Father did not submit any documentation despite requesting costs.

Myreasons for so concluding are as follows. [49] Counsel’s letter on behalf of the Mother did not specify an infringement of a specific Charter right and constitutionalprinciples being relied upon. The Mother has the onus of demonstrating a breach. [50] Costs was not at the heart of the issue in this case. The Initial Custody hearing was about the Children. [51] These Children also have Charter rights. [52] In AR v Alberta (Child, Youth and Family Enhancement Act, Director), 2014 ABCA 148, the Court of Appeal commented onwhether the mother’s s 7 Charter rights were breached.

At paragraph 23, the Court of Appeal stated: The reviewing justice should have weighed these considerations through the lens of the children’s own

section 7 rights to life, liberty andsecurity of the person, their need to form a loving and secure attachment to permanent caregivers as early as possible in their childhood,and the Legislature’s direction regarding stability, continuity of care and a timely resolution. [53] In T v Alberta (Director of Child Welfare), 2000 ABCA 182, at para 14, the Alberta Court of Appeal commented on theconflict between rights. The Court of Appeal stated: ... In the end, this Act is about protecting children from harm; it is a child welfare statute and not a parents’ rights statute.

That does notmean that parental interests – or family interests – are to be cavalierly treated or ignored. ... But here, the Legislature has sought to strikewhat it considers to be an appropriate balance between the state’s responsibility to protect children on the one hand and the guardian’snurturing responsibility on the other. These respective responsibilities, often referred to as rights, may be in accord or in conflictdepending on the particular circumstances. [54] Both the Director and this Court’s primary obligation in child welfare proceedings is to children.

Therefore, the Director notbeing successful at the Initial Custody hearing does not, in itself, support the finding of a Charter breach. [55] In NL, Andrew J at trial found serious and unnecessary breaches of ss 7 and 15 of the Charter. There was a delay in bringingthe matter before the Court. Andrew J noted that the Director did not have concerns about the mother’s ability to care for the child.

Andrew J concluded that the Director had acted contrary to the best interests of the child by proceeding with the Permanent Guardianshipapplication. [56] In this case, the caseworker first attempted to implement a safety plan which is much less intrusive than an apprehension. This was done despite, what I have concluded, was a sense of misgiving by Ms Mrdja. The Parents did not provide timely medical careto JD so as not to cause JD to suffer unnecessary physical pain and suffering.

The Mother had to be repeatedly asked to take JD to see adoctor before finally doing so, thus suggesting a need for ongoing monitoring by the Director. The Children were living in a disgustingand dangerous home environment before it was cleaned. The Father thought their home was okay. The Mother externalized blame forthe condition of their home. The Parents continued to deny domestic violence.

The only brief delay in scheduling the Initial Custodyhearing was due to counsel’s conflict of interest in initially representing both the Mother and Father. [57] To quote from the Director’s brief, the conduct of the caseworker in this case did not demonstrate ‘entrenched conduct of theDirector’. [58] I have concluded that the caseworker acted in good faith throughout. Ms Mrdja initially used a less intrusive measure byimplementing a safety plan. Nevertheless, Ms. Mrdja still had justifiable reservations about the Parents’ ability to care for the children.

Ms Mrdja’s actions in this case did not constitute gross mismanagement or misconduct that would be required to find a Charter breach.

[ 59 ] The decision in WAM is not applicable to the case before me. At trial, the Court of Queen’s Bench awarded costs on the basis of procedural fairness and did not comment on whether there was a breach of Charter rights. On appeal, the Court of Appeal did not consider potential Charter breaches or the issue of costs. Furthermore, and as noted above, the Alberta Court of Justice cannot award costs pursuant to the Rules of Court . [ 60 ] I continue to share Ms Mrdja’s concerns regarding the Parents’ ability to properly care for the Children.

I find it difficult to accept that the Parents are able to meet the “good enough” parenting standard at all times. In my opinion, the Supervision Order, which was consented to by the Parents, was a proper outcome for the Children. The terms set out in the Supervision Order will ensure that the Children will be properly cared for and their well-being monitored during the next six months. [ 61 ] The application for costs against the Director is dismissed. Heard on the 06 th day of November, 2023. Dated at the City of Calgary, Alberta this 29 th day of November, 2023. S.E.

Lipton A Justice of the Alberta Court of Justice Appearances: R Ahmed for the Applicant Mother CD G Wolch for the Applicant Father KD C Dylke for the Director, Child, Youth and Family Enhancement Act