Alberta (Child, Youth v. Family Enhancement Act, Director), 2023 ABCJ 230

In the Alberta Court of Justice Citation: Alberta (Child, Youth and Family Enhancement Act, Director) v CB, 2023 ABCJ 230 Date: 20231102 Docket: CP903000284 Registry: Edmonton In the Matter of Application Under

Section 32 of the Child, Youth and Family Enhancement Act Regarding the Children, TC, Born April, 2007, NB, Born July, 2016 and SB, Born September 2018 Between: Alberta (Child, Youth and Family Enhancement Act, Director) Applicant - and - CB Respondent Restriction on Publication Identification Ban – See the Child, Youth and Family Enhancement Act ,

section 126.2. No person shall publish the name or photograph of a child or of the child's parent or guardian in a manner that reveals that the child is receiving, or has received, intervention services. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Decision of the Honourable Justice G.B.N. Ho [ 1 ] The Director has applied for a permanent guardianship order for three (3) children: TC, NB, and SB.

[ 2 ] Trial of the permanent guardianship application was set for November 6 and 7, 2023. [ 3 ] On September 7, 2023, an interim hearing was set for October 16, 2023, to determine if JL, the father of TC, was a guardian of TC. This determination was necessary because the Director refused to provide disclosure to JL’s lawyer, without an application under s. 126.11 of the Child, Youth and Family Enhancement Act (“the Act”) unless JL was a guardian. [ 4 ] The Father was not in attendance on October 16, 2023. I noted that

an Act respecting First Nations, Inuit and Metis children, youth and families, ( S.C. 2019 c. 24 – “the Federal Act ”), conferred party status on all parents of Indigenous children, regardless of guardianship, and adjourned the matter to October 26, 2023 to provide counsel the opportunity to address any right of parents of Indigenous children to disclosure necessitated by being made parties by the Federal Act . [ 5 ] On October 26, 2023, counsel for the Director, counsel for JL, counsel for the Mother, and counsel for the children were in attendance, as well as the Mother and the Father of NB and SB.

The Father for TC was not in attendance. Accordingly, the determination of guardianship did not proceed. I heard from all counsel and provided my decision on disclosure. I indicated that, in view of the importance of this issue, I would be preparing a written decision to follow. This is that decision. [ 6 ]

Section 23 of the Act states: Notice of application 23(1) Notice of the nature, date, time and place of every hearing under this Division shall be served by the applicant on (

a) all the guardians of the child, (

b) a director, if the applicant is not a director, (

c) the child, if the child is 12 years of age or older, (

d) a foster parent of the child, if the child was in the continuous care of that foster parent for more than 6 months immediately preceding the application, and (

e) any other person in whose care the child was when the child was apprehended, if the child was in the continuous care of that person for more than 6 months immediately preceding the application.

(2) Notice under subsection (1) shall be served personally on (

a) all the guardians of the child, and (

b) the child, if the child is 12 years of age or older.

(3) Notice under subsection (1) may be served by mail on (

a) a director, (

b) a foster parent, and (

c) a person in whose care the child was when the child was apprehended.

(4) Notice under subsection (1) shall be served at least 5 days before the date fixed for the hearing.

(5) If the Court is satisfied that it is proper to do so, the Court, on the ex parte application of the applicant at any time before the time fixed for the hearing, may do any of the following: (

a) authorize service ex juris, service by registered mail or any other form of substitutional service; (

b) if an order is made under clause (a), extend or reduce the time within which service may be effected; (

c) if an order is made under clause (a), extend the time within which a hearing shall be held; (

d) authorize service on a guardian appointed under the Adult Guardianship and Trusteeship Act in respect of the guardian of a child instead of on the guardian of the child; (

e) authorize the giving of a shorter period of notice; (

f) dispense with service on any person other than the director.

(6) Whether or not authorization has been given under subsection (5), the Court may do any of the following at the time of the hearing: (

a) approve service made in a form it considers adequate in the circumstances; (

b) approve a shortened period as sufficient notice; (

c) dispense with ser ice on any person other than the director. [ 7 ] Parents have no right to notice of any application under the Act unless they are guardians or otherwise qualify under s.23(1). [ 8 ]

Section 111 of the Act states: Court Proceedings Right to appear 111(1) In any proceedings before the Court under

Part 1, Division 3 or 4, (

a) a foster parent or any other person who has had continuous care and custody of the child for not less than 6 months, and (

b) any other person, with the consent of the Court, may appear and make representations to the Court.

(2) Notwithstanding subsection (1), the only parties to a proceeding under

Part 1, Division 3 or 4 or an appeal from that proceeding are the child, the child’s guardian, the director and the Minister.

(3) The Minister need not be served with notice of any proceeding under

Part 1, Division 3 or 4.

(4) Notwithstanding subsection (2), a child may examine the Court record only with the consent of the Court. [ 9 ] Although s. 111(1)(

b) confers a right on any person to make representations to the Court with the permission of the Court, only the child, the child’s guardian, the director and the Minister are parties. [ 10 ]

Section 12 of the Federal Act requires the Director to give notice of any significant measure to the child’s parent: Notice 12

(1) In the context of providing child and family services in relation to an Indigenous child, to the extent that doing so is consistent with the best interests of the child, before taking any significant measure in relation to the child, the service provider must provide notice of the measure to the child's parent and the care provider, as well as to the Indigenous governing body that acts on behalf of the Indigenous group, community or people to which the child belongs and that has informed the service provider that they are acting on behalf of that Indigenous group, community or people. Personal information

(2) The service provider must ensure that the notice provided to an Indigenous governing body under subsection (1) does not contain personal information about the child, a member of the child's family or the care provider, other than information that is necessary to explain the proposed significant measure or that is required by the Indigenous governing body's coordination agreement. [ 11 ] Thus, in the case of an Indigenous child, notice of any child protection proceeding, among other significant measures, must be given to the child’s parent even if that parent is not a guardian. [ 12 ]

Section 13 provides that parents of an Indigenous child have party status, even if the parent is not a guardian: Representations and party status 13 In the context of a civil proceeding in respect of the provision of child and family services in relation to an Indigenous child, (

a) the child's parent and the care provider have the right to make representations and to have party status; and (

b) the Indigenous governing body acting on behalf of the Indigenous group, community or people to which the child belongs has the right to make representations. [ 13 ] The leading case on disclosure is SDK v Alberta (Director of Child Welfare) , 2002 ABQB 61 , where Justice Bielby stated the following: At para 1: 1 Parents and guardians of children who are the subject of child protection proceedings under the Child Welfare Act , S.A. 1984, c.

C-8.1 , as amended, ("the CWA ") are entitled to receive, upon request, disclosure of all relevant information in the possession of the Department of Child Welfare ("the Department") subject to the reviewable discretion of that Department which may decline to disclose information which is irrelevant or which may disclose the identity of informers or which may potentially harm a child's physical, mental or emotional health to a degree that such harm outweighs the entitlement of his or her parents to disclosure. At para 47:

47 The parties' interests in a child protection matter are as serious as those in many criminal matters. This fact, plus the overarching need to ascertain a method of protecting the child's best interests, entitle all parties to a child protection matter to as full and as timely disclosure of information as possible. [ 14 ] For a parent to participate fairly and effectively in a child protection proceeding, they must be entitled to disclosure. Otherwise, the entitlement to be a party is meaningless. [ 15 ] I therefore order the Director to provide all relevant disclosure to counsel for JL.

This is to include all disclosure to which a guardian is entitled and not just disclosure that relates directly to JL. I appreciate the undertaking of counsel for the Director to provide disclosure by the end of today. Heard on the 26 th day of October, 2023. Oral decision rendered on the 26 th day of October, 2023. Dated at the City of Edmonton, Alberta this 2 nd day of November, 2023. G.B.N. Ho A Justice of the Alberta Court of Justice Appearances: Goli Yohannes for the Director M. Baath for CB, the Respondent Mother E. Madu For JL, Father of TC T. McLeod For JB, Father of NB and SB H.

Henderson For the Children, TC, NB and SB