AMF v. BA, 2023 ABCJ 287

In the Alberta Court of Justice Citation: AMF v Alberta ( Child, Youth and Family Enhancement Act , Director) 2023 ABCJ 287 Date: 20231221 Docket: CP903001086 Registry: Edmonton In the Matter of an Application Under

Section 52 of the Child, Youth and Family Enhancement Act Regarding the Child, KRC Born October 2023 Between: AMF and BA Applicant - and - Alberta ( Child, Youth and Family Enhancement Act , Director) 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 D. Dalton Introduction [ 1 ] On June 11, 2021, the Applicant, AMF, commenced a self-directed private guardianship application of KRC under s.52 of the Child, Youth and Family Enhancement Act , RSA 2000, c C-12 ( CYFEA ).

KRC is a 10-year-old Indigenous girl who came into care when she was an infant because of protection concerns. She was placed with the Applicant’s mother as a kinship placement when she was approximately 18 months old. The Applicant was 20 years old at the time and living in the home. Eventually, the Applicant became KRC’s primary caregiver and has remained so to this day. Approximately two years ago, AMF commenced a relationship with BA. They became common law partners and now have an infant child together. [ 2 ] On October 27, 2023, the matter came before me in docket court.

An application was made to amend the application to include BA as an applicant. As the Home Study Report had been prepared in anticipation of the amendment and included an assessment

of BA as a potential guardian, I granted that application to amend. I subsequently granted the applications for private guardianship. [ 3 ] I indicated at that time that I would provide a written decision in this matter, not because it was contentious, but because of the need to provide some procedural guidance for these kinds of applications. In the past, the vast majority of private guardianship applications regarding children in care were brought by the Director on behalf of an applicant, and the Director shepherded the application through the court process.

Now, more and more self-directed private guardianship applications are being filed in the Alberta Court of Justice without the assistance of the Director. These applicants are often unaware of the requirements of the legislation and the steps they must take in advancing their application. Perhaps even more importantly, these applications are being brought in the face of an emerging legal landscape in relation to Indigenous children in the realm of child protection.

The purpose of this decision is to provide clarity regarding the procedural requirements for private guardianship applications under CYFEA in relation to Indigenous children in care.

Requirements of the Child, Youth, and Family Enhancement Act [ 4 ] Until recently, private guardianship applications in Alberta were governed exclusively by s.52 of the Child, Youth and Family Enhancement Act , which provides as follows: 52(1) Any adult may apply to the Court in the prescribed form for a private guardianship order in respect of a child who is in the custody of a director or is the subject of a temporary guardianship order or a permanent guardianship agreement or order.

(1.01) Notwithstanding any other enactment, a person may not apply to any court to be appointed as a guardian of a child who is in the custody of a director, or is the subject of a temporary guardianship order or a permanent guardianship agreement or order, except under this Act.

(1.1) An application under subsection (1) must include a home study report prepared by a qualified person respecting (

a) the suitability of the applicant as a guardian, (

b) the ability and willingness of the applicant to assume the responsibility of a guardian with respect to the child, and (

c) whether it is in the best interests of the child that the applicant be appointed as a guardian of the child.

(1.2) If the child is the subject of a permanent guardianship agreement or order, the report required under subsection (1.1) must be prepared by a director.

(1.3) If an applicant has reason to believe that the child is an Indigenous child, the application under subsection (1) must include a plan that addresses how the child's Indigenous identity, culture, heritage, spirituality, language and traditions will be respected, supported and preserved.

(2) A director may, on behalf of an applicant, make an application under subsection (1) if (

a) the applicant consents in writing, and (

b) the director is satisfied that it is in the best interests of the child for the child to be placed under the guardianship of the applicant. [ 5 ] The test for granting of the Private Guardianship Order is contained in s.56: 56(1) If the Court is satisfied that (

a) the applicant is able and willing to assume the responsibility of a guardian toward the child, (

b) it is in the best interests of the child, and (

c) the child has been in the continuous care of the applicant for a period of at least 3 months immediately prior to the hearing, the Court may make a private guardianship order appointing the applicant as a guardian of the child.

(1.01) If it is satisfied that it is in the best interests of the child to do so, the Court may waive the requirement in subsection (1)(c).

(1.1) On making an order under subsection (1), the Court may include terms respecting custody of and contact with the child.

(1.2) On making an order under subsection (1) appointing a guardian of an Indigenous child, the Court shall advise the guardian of the guardian's obligations under

section 57.01. [ 6 ] The legislation requires that at least 30 days notice of the application be served on the guardian of the child (in this case a director), the child (if the child is over 12 years of age), and the band, if the child is a First Nation Individual or a member of the band. These requirements are contained in s.53. 53(1) The applicant shall serve notice of the nature, date, time and place of the hearing of the application under

section 52, a copy of the report described in section 52(1.1) and a copy of the plan described in section 52(1.3) if one was required under that section, not less than 30 days before the date of the hearing on (

a) the guardian of the child,

(

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

c) a director, if a director is not the guardian.

(1.1) In addition to serving notice on the persons listed in subsection (1), if the child is a First Nation Individual or a member of a band, the applicant shall serve notice of the nature, date, time and place of the hearing of the application under

section 52 not less than 30 days before the date of the hearing on the band or bands identified by a director as the band or bands of which the child is a member or is entitled to be a member.

(2) The Court may, if it considers it appropriate to do so, (

a) order that service of the notice of the application, the copy of the report described in section 52(1.1) and the copy of the plan described in section 52(1.3) if one was required under that section, be made substitutionally or ex juris , (

b) shorten the period of service required under subsection (1), or (

c) dispense with service on any band or any person other than the director. Act Respecting First Nations, Inuit and Metis Children, Youth and Families Requirements [ 7 ] On January 1, 2020, the federal Act Respecting First Nations, Inuit and Metis Children, Youth and Families , SC 2019, c 24 came into force. The

preamble of the Act makes clear its aspirational purpose. It affirms the right to self-determination and self- government of Indigenous peoples, including jurisdiction in relation to child and family services. In the spirit of the Calls to Action articulated by the Truth and Reconciliation Commission, the Act acknowledges the need to respect Indigenous cultures and traditions in order to address the needs of Indigenous children who have inherited the legacy of the Indian Residential Schools system.

It highlights the need to eliminate the over-representation of Indigenous children in care and supports the meaningful involvement of Indigenous groups, communities, and peoples in the lives of children and families impacted by child and family services. [ 8 ] As a stepping stone to achieving these ends, the legislation requires that notice of any significant measure be provided to an Indigenous child’s parents, care provider, and the Indigenous governing body of the community to which the child belongs before the service provider takes any significant measure in relation to the child. 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 . [ 9 ] Effectively, the legislation expands the notice requirements that are contained in CYFEA .

Pursuant to s.53 of CYFEA , notice is required to the child’s guardian; the Director, if the Director is not the guardian; and, if the child is First Nation, to the band(

s) of which the child is member or entitled to be a member. Under the federal legislation, notice is also required to be given to the child’s parents, even though their guardianship may have been terminated through a Permanent Guardianship Order. Similarly, notice is required to care providers.

Finally, notice must be given to the Indigenous governing body that acts on behalf of any Indigenous group, community, or people to which the child belongs that has given notice to the service provider, not just to the First Nation with which a child is a member or entitled to be a member. [ 10 ] The statute also imposes further obligations regarding the placement of an Indigenous child. The federal Act requires the ongoing review of the placement of an Indigenous child in care and imposes a hierarchy to govern placement decisions. Priority 16

(1) The placement of an Indigenous child in the context of providing child and family services in relation to the child, to the extent that it is consistent with the best interests of the child, is to occur in the following order of priority: (

a) with one of the child’s parents; (

b) with another adult member of the child’s family; (

c) with an adult who belongs to the same Indigenous group, community or people as the child; (

d) with an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs; or (

e) with any other adult. P lacement with or near other children

(2) When the order of priority set out in subsection (1) is being applied, the possibility of placing the child with or near children who have the same parent as the child, or who are otherwise members of the child’s family, must be considered in the determination of whether a placement would be consistent with the best interests of the child. Customs and traditions

(2.1) The placement of a child under subsection (1) must take into account the customs and traditions of Indigenous peoples such as with regards to customary adoption. Family unity

(3) In the context of providing child and family services in relation to an Indigenous child, there must be a reassessment, conducted on an ongoing basis, of whether it would be appropriate to place the child with (

a) a person referred to in paragraph (1)(a), if the child does not reside with such a person; or (

b) a person referred to in paragraph (1)(b), if the child does not reside with such a person and unless the child resides with a person referred to in paragraph (1)(a). A ttachment and emotional ties 17 In the context of providing child and family services in relation to an Indigenous child, if the child is not placed with a member of his or her family in accordance with paragraph 16(1)(

a) or (b), to the extent that doing so is consistent with the best interests of the child, the child’s attachment and emotional ties to each such member of his or her family are to be promoted. Clearly the federal act imposes supplemental, robust notice requirements in addition to those contained in the provincial legislation. Does An Act Respecting First Nation, Inuit and Metis Children, Youth and Families Apply to Private Guardianship Applications? [ 11 ] While the term “significant measure” is used in s.12 of the Act , it is not defined in the legislation.

Some academics in the area of Indigenous and child protection law have advocated for a broad definition which would encompass significant decisions regarding the child from the child’s perspective .

In Judicial Workbook: Bill C-92 – An Act Respecting First Nations, Inuit and Metis Children Youth and Families (2022), Professors Hadley Friedland, Naiomi Metallic and Koren Lightning-Earle note the following: Significant Measures : Wahkohtowin Law and Governance Lodge defines “significant measures” in a broad inclusive way, in keeping with the purposes of the Act – not just legal changes but changes in placements, service provider awareness or responses to issues such as suicidal ideation or behaviour, sexual identity, etc. – anything that could significantly change the day to day life of the child, parent and/or care provider, or can impact the likelihood or timeline of apprehension, permanency or reunification.

While this is an

interpretation of an undefined term, significant measures must cover more than court proceedings or else parliament could simply say court proceedings. [ 12 ] I agree that “significant measures” includes more than simply court proceedings. Does it encompass all court applications as well? In particular, does it include applications for private guardianship such as the one before the court? A number of cases in Alberta have grappled with this issue. In several instances, the Court concluded that private guardianship applications did not fall within the ambit of the Act . [See, for example, S.L. v.

Alberta ( Child, Youth and Family Enhancement Act , Director ), 2021 A.J. No.1105 (ABPC) ; Z.B. (Re) [2022] A.J. No. 421 (ABPC) ] In other cases, the Court held the converse. (See, for example, Alberta ( Child, Youth and Family Enhancement Act , Director) v. KC and JP , 2020 ABPC 62 ; SK v. Alberta ( Child, Youth and Family Enhancement Act , Director) , 2022 ABPC 144 ; RS v. Alberta ( Child, Youth and Family Enhancement Act , Director) 2022 ABPC 176 ; and M.B. (Re) [2022] A.J. No. 1580 .) In fairness, this is an emerging area of law and has evolved since some of the earlier decisions.

In particular, some of the earlier cases held that private guardianship applications were not captured because they did not fit within “ the context of providing child and family services in relation to an Indigenous child ” as required by s.12. [ 13 ] With the greatest of respect to my colleagues who have taken this position, I join my colleagues in the latter group, Justices Glass, Lloyd, Filice and Christopher, for the well-articulated and compelling reasons given in those decisions.

In my view, one would be hard-pressed to find a more significant matter in the provision of child and family services in relation to an Indigenous child than the question of who should act as a guardian to the child, whether that be the Director or someone else entirely. Guardianship perhaps escapes attention as falling withing the provision of child and family services because guardianship is not the visible manifestation of services, such as arranging supervised access visits with parents, arranging for substance abuse treatment for parents, taking the child to see a play therapist, or a dentist.

While guardianship is not a “service” in this sense, it is the very soil in which these “services” are rooted – the power to make decisions about the child. The provision of services to a child in care and the right to make decisions regarding those services go hand in hand. [ 14 ] I would add one other point: from the perspective of the child and the Indigenous community, applications for Private Guardianship are one of the most significant decisions that can be made with respect to an Indigenous child in care.

A successful applicant will inherit all decision-making responsibilities with respect to the child, effectively displacing the Director and any other existing guardians as a guardian. While the acquisition of a “forever home” is quite properly often a cause for celebration, the corollary effect of this transition is that it is the point at which a child’s connection to their Indigenous community is at real risk of being severed. It is for this reason that many Indigenous communities oppose in principle both private guardianship applications and the adoption of their children.

It is not unusual for First Nation band designates to appear in this court to voice that very concern and to advise the Court of their First Nation’s objection to a private guardianship application. Historically, these are the points on the trajectory of an Indigenous child in care where the child vanishes. Indigenous communities mourn that loss and have for years advocated for the repatriation of Indigenous children to their communities.

From the perspective of former guardians – usually parents – the granting of an application for private guardianship also means that the former guardian can no longer apply under CYFEA to have a Permanent Guardianship Order terminated and the child returned to the former guardian, as is contemplated in s.35.1.

[ 15 ] The Child, Youth and Family Enhancement Act requires that the Director ensure the child’s continued connection with their community – if the child is member of a band or eligible for membership with a band. Historically, however, once private guardianship is granted, those choices are essentially left to the successful applicant.

I say this despite the existence of s.52(1.3) which requires an applicant to include a cultural connection plan that addresses how the child’s Indigenous identity, culture, heritage, spirituality, language and traditions will be respected, supported and preserved. (Parenthetically, it is promising that these plans – which at one time occupied little more real estate than the back of a napkin – have in many cases evolved to be thoughtful, robust documents.) Similarly, s.57.01 of CYFEA requires a successful applicant to take reasonable steps to comply with a cultural connection plan, and, if the child is First Nation, to inform the child of their status as soon as the private guardian believes the child is capable of understanding.

Despite these laudable requirements, in the end they have often served as little more than moral suasion to encourage successful applicants to abide by their terms. The successful private guardianship applicant no longer has the Director – or anyone else – looking over their shoulder to ensure that they abide by the strictures of CYFEA . They are autonomous. [ 16 ] For all of these reasons, I am of the view that private guardianship applications are indeed a “significant measure” captured by s. 12 of An Act Respecting First Nation, Inuit and Metis Children, Youth and Families.

As such, the notice provisions of s.12 of the Act are engaged and apply to Private Guardianship applications under CYFEA . Which Indigenous Governing Bodies Receive s.12 Notice? What is an Indigenous Governing Body (“IGB”)? [ 17 ] The meaning of “Indigenous governing body” in the federal Act is defined as a “council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by

section 35 of the Constitution Act, 1982 .” Clearly, the definition of an Indigenous governing body is intended to be broader than the definition of “band” in CYFEA , which is limited to bands within the meaning of the Indian Act (Canada) . [ 18 ] The more expansive wording in the federal legislation would, on its face, include First Nations to which a child is connected, even though the child may not be a registered member or eligible for membership. It would also include governing bodies such as a Metis Settlement of which a child is a member, and even the Metis Nation of Alberta (“MNA”).

While Alberta courts have, in the past, characterized the MNA as nothing more than an entity established under the Societies Act , the legal landscape has changed significantly in the last several years. This includes, in 2023, the signing of an agreement between Canada and the MNA known as the Metis Nation within Alberta Government Recognition and Self-Government Implementation Agreement. That Agreement acknowledges that the Metis Nation of Alberta has an inherent right to self-government recognized and affirmed by

section 35 of the Constitution Act 1982 . In particular, the Agreement recognizes that the Metis Nation of Alberta is an Indigenous governing body for the purposes of An Act respecting First Nations, Inuit and Metis Children, Youth and Families . Similar bilateral agreements have been signed with other Metis Nations in Canada. [ 19 ] In my view, a purposive approach should be taken in defining an “Indigenous governing body”. The Indigenous groups above are examples of communities that are at risk of being marginalized by a narrow

interpretation. While the definition is not black and white, the

interpretation should be a generous one in order to meet the ameliorative purpose of the Act . Indeed, a narrow

interpretation would frustrate the goal of ensuring that children in care have the benefit of their community’s input into their care and ongoing connection to the child’s community. A narrow

interpretation is not in the best interests of Indigenous children in care. IGB’s That Have Informed the Service Provider That They Act on Behalf of the Community [ 20 ] The legislation imposes a caveat in that notice is only required to an Indigenous governing body that acts on behalf of the Indigenous community to which the child belongs, but only if that Indigenous governing body has informed the service provider that they are acting on behalf of the Indigenous group.

The requirement that the Indigenous governing body inform the service provider of its status would seem, at first blush, to be a straightforward – and reasonable – requirement.

It is, however, fraught with difficulties and has the potential to imperil the participation of Indigenous governing bodies to a significant degree to the detriment of Indigenous children in care. [ 21 ] The requirement is predicated on the assumption that if an Indigenous governing body wishes to become involved in child protection matters related to its children, it can easily advise a service provider in advance of its wishes and advising service providers of this position is not an onerous hurdle to overcome.

This seriously underestimates the complexities such notice would entail. [ 22 ] To put this in context, the Indigenous community to which a child is connected is often not in the same geographical location where intervention services take place. It is not uncommon at all for Indigenous families to move, for example, from a First Nation to a larger town or city within Alberta, and even back again. Families may even relocate to another province.

Such mobility reflects the reality of any number of reasons, including, for example, looking for better employment opportunities, to be closer to a spouse’s home community or family, or to have better access to support services. [ 23 ] An Indigenous governing body cannot simply call up the local Designated First Nations Agency under CYFEA , for example, and expect to catch all of its members and children in that net. There is a plethora of Child and Family Services Regions across Alberta that have jurisdiction in a patchwork of geographical areas. To whom does the Indigenous governing body give notice?

Can the IGB simply send a letter to the Minister of Children and Family Services? Must the IGB give notice to every service provider in Alberta? In Canada? Ascertaining all of the service providers in Alberta alone is no small task. There is no central registry or repository of service providers that is made available to Indigenous governing bodies disclosing contact addresses and telephone numbers. Nor is there the luxury of a central registry where Indigenous governing bodies could register their “notice” in Alberta, let alone in every province or territory.

I am not aware of any outreach program or proactive steps taken by Child and Family Services or by the Regions to inform all Indigenous communities or groups of the method to register their notice. If the process for notification by an IGB to service providers within a province is obscure, how much more opaque is it for an IGB outside of the province?

[ 24 ] The complexities are compounded in the case of a self-directed private guardianship application such as the one before the Court. How is the applicant to know if any particular Indigenous governing body has given notice to any particular service provider? It is unlikely that the applicant would be privy to that information. [ 25 ] What appears on its face to be a simple requirement may in fact be a saboteur in achieving the goal of the Act to engage with Indigenous communities in finding solutions for Indigenous children in care and to facilitate their participation in court proceedings.

Does that then absolve a service provider of an applicant of notifying an Indigenous governing body that a child connected to its community is involved in child protection services, and that a significant measure will be made in respect of that child? In my view, it does not. [ 26 ] An explicit reverse onus might have been a more prudent approach and one more in keeping with the purpose of the Act .

That is, it would have been preferable to explicitly require a service provider or an applicant to notify the Indigenous community to which a child belongs, unless either the service provider or the applicant can establish that the Indigenous community to which the child belongs has given notice to the service provider that it does not wish to be notified. That is not the language of the statute, however. [ 27 ] Nevertheless, in my view, courts must adopt this kind of reverse onus approach to the s. 12 notice requirements to Indigenous governing bodies if the notice provisions are not to become vaporous.

If courts do not adopt this approach, the practical complexities and flaws in the mechanics of how an Indigenous governing body is to provide notice to service providers will undermine the intent of the legislation to such a degree that the ostensible objective of including a child’s Indigenous community in will be more form than substance. [ 28 ] I do not believe that this approach is unduly onerous to service providers or applicants.

It is already incumbent on the service provider or an applicant to make inquiries to determine whether a child is connected to an Indigenous community in any event in order to satisfy obligations under both the provincial and federal legislation. Furthermore, while notice to a child’s Indigenous community may not be explicitly required in the notice provisions of the two statutes, other provisions of the statutes underscore the importance of nurturing an Indigenous child’s connection to their community and make a compelling argument for notice on their own. For example, s, 2(1) of CYFEA reads as follows: 2.

Matters to be considered –

(1) If a child is in need of intervention, a court, an Appeal Panel and all persons who exercise any authority or make any decision under this Act relating to the child must do so in the best interests of the child and must consider the following as well as any other relevant matter:…. (

c) In the case of an Indigenous child, the importance of respecting, supporting and preserving the child’s Indigenous identity, culture, heritage, spirituality, language and traditions;… (

j) any decision concerning the placement of the child outside the child’s family must include a plan to address the child’s need for permanent, formalized ties to people who care about the child and must take into account… (iii) in the case of an Indigenous child, the benefits to the child of a placement where the child’s Indigenous identity, culture, heritage, spirituality, language and traditions will be respect supported and preserved… [ 29 ] Other parts of CYFEA , too, acknowledge the special importance of culture to an Indigenous child.

As previously discussed, a private guardianship applicant is required to provide a cultural connection plan to the Court. How substantive can this plan be if the child’s Indigenous community is not at least approached to solicit feedback and involvement?

These requirements alone might justify a Court requiring formal notice to an Indigenous community, under the Court’s authority to govern its own process. [ 30 ] It would be disingenuous if the Director or an applicant, knowing of a child’s connection to an Indigenous community, chose not to notify the community because the service provider had not been formally notified that the Indigenous governing body acts on behalf of the Indigenous group, community, or people.

Indeed, it is clear that, in this jurisdiction, the Director already makes efforts to engage with a child’s Indigenous community, whether or not the community has given formal notice to the service provider. These efforts are laudable and assist the Court in meeting its obligations under both the provincial and federal legislation. Notice to Parents and Care Providers [ 31 ]

Section 12 of an Act respecting First Nations, Inuit and Metis children, youth and families is clear that parents must be given notice of any significant measure. This is so, even though a parent’s guardianship may have been terminated by way of a Permanent Guardianship Order regarding the child. [ 32 ] The legislation further requires notice to care providers.

The Act defines “care provider” as “a person who has primary responsibility for providing the day-to-day care of an Indigenous child, other than the child’s parent, including in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs”. It is unclear whether this requirement relates only to individuals who were care providers before the child was apprehended, or whether it is intended to also include care providers after the child has been apprehended and brought into care, such as kinship placements or foster parents.

While I highlight this as being a live issue, I do not need to decide this issue today. Form and Manner of Notice [ 33 ] While the notice requirements of the federal legislation are more robust in terms of the parties and entities to be given notice, the federal legislation is silent on the form or manner of notice required, as well as the number of days notice. In my view, the federal Act Respecting First Nations, Inuit and Metis Children, Youth and Families overlays the provincial CYFEA legislation.

In many respects, the acts are similar, but the federal legislation now superimposes additional responsibilities in applications regarding Indigenous children in care. The precise interplay between the two pieces of legislation is not articulated, but it is nevertheless the responsibility of the Court to

ensure that the requirements of both statutes are met. The Court must attempt to read them harmoniously and give effect to both legislative schemes. The substantive requirements of the federal legislation cannot be left unmet due to a want of procedural clarity. In considering the form of notice, it is important to keep in mind its underlying purpose: to inform parents, care providers, and Indigenous governing bodies of the substance of the application, and to advise them of sufficient details to enable them to participate in the proceedings.

Section 13 of an Act Respecting First Nations, Inuit and Metis Children, Youth and Families reads: 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. [ 34 ] First, it is my view that notice must be in writing. While this is not specified in the federal legislation, it is the expectation in virtually all legal proceedings, including child protection proceedings. It is the standard under CYFEA , and it is the standard under the Rules of Court .

In what other legal matter – in family law or otherwise – would the Court accept, as adequate notice the leaving of a message on someone’s voicemail in the absence of a court order? [ 35 ] Furthermore, the expectation for service of notice on an individual is that it be personal service. Again, this is the standard in both CYFEA and in the Rules of Court. In my view service of notice on an Indigenous governing body may be effected in a manner analagous to service on a corporation for civil claims in the Alberta Court of Justice.

Service may be made: 1. by leaving the documents at the registered office of the Indigenous governing body; 2. by sending the documents by recorded mail to the registered office of the Indigenous governing body; 3. by serving a Director of the Indigenous governing body in the same way as an individual Defendant is served; 4. by sending or emailing the documents to an address or email provided by the Indigenous governing body as being suitable for receiving notice; or 5. by serving an individual who appears to have management and control responsibilities for the Indigenous governing body at its registered office. [ 36 ] The federal Act is also silent with respect to the time requirements for notice.

Most applications under CYFEA require 5 days notice. However, in a private guardianship application, s.53(1) of CYFEA requires not less than 30 days notice before the date of the hearing on the guardians of the child; the child, if the child is 12 or older; and a director, if a director is not the guardian. If the child is a member of a band, or entitled to be a member of a band, s.53(1.1) requires that notice of the hearing be served not less than 30 days on the First Nation.

In light of these notice requirements, it is reasonable that parents, care providers and any additional Indigenous governing body be provided the same notice, both to ensure procedural fairness as well as to maintain consistency. [ 37 ] The content of the notice should be different for Indigenous governing bodies versus parents and care providers. This makes sense when considering that parents and care providers have party status under the Act , while Indigenous governing bodies are limited to the right to make representations.

Furthermore, s. 12(2) of an Act respecting First Nations, Inuit and Metis children, youth and families balances the child’s privacy with the right of an Indigenous governing body to be informed of its right to participate in proceedings: Personal information 12(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. [ 38 ] CYFEA as well limits the content of the information to be provided to First Nation children who are members of a band or eligible for membership.

Section 53(1.1) specifies that the applicant shall serve notice of the nature, date, time and place of the hearing of the application. [ 39 ] In my view, parents and care providers should be provided more information. Section 53(1) of CYFEA requires that an applicant must not only provide notice of the nature, date, time and place of a hearing on guardians, a child over 12, and a director, but must also serve a copy of the Home Study Report required by s.52(1.1) and a copy of the cultural connection plan required by s.52(1.3).

Because parents and care providers have a right to be parties in the application pursuant to an Act Respecting First Nations, Inuit and Metis Children, Youth and Families , they should be entitled to the same information. [ 40 ] Of course, other tools are available to the Court to ensure that service issues do not become insurmountable hurdles. It is open to applicants to make an application for an Order for Substitutional Service, or for an Order to abridge service. An applicant can also make an application to dispense with service in the appropriate circumstances.

These mechanisms are available both in CYFEA and in the Rules of Court and should be similarly available in applications for private guardianship. [ 41 ] Finally, as in other court applications, an applicant should complete and file with the Court an Affidavit of Service in respect of each person or entity they are required to serve.

Summary of Procedural Requirements of Private Guardianship

Applications Regarding an Indigenous Child 1. All of the procedural requirements contained in CYFEA remain in effect. 2. The Applicant must serve notice of the application on: (

a) The guardians of the child; (

b) The child, if the child is 12 years of age or older; (

c) The director, if a director is not the guardian of the child; (

d) The child’s parents; (

e) The child’s care providers; (

f) The band, if the child is a member of a band or eligible to be a member; (

g) Any other 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 the Indigenous group, community or people ; (

h) Any Indigenous governing body that acts on behalf of the Indigenous group, community or people to which the child belongs and that has not informed the service provider that they are acting on behalf of the Indigenous group, community or people. 3. The Applicant must give at least 30 days notice before the hearing date to all the individuals and entities listed in paragraph 2 above. 4. Notice to the individuals and entities listed in paragraph 2 above must be given in writing. 5. The notice to guardians, parents, and care providers must include: (

a) Notice of the nature, date, time and place of the hearing. (

b) A copy of the Home Study Report; and (

c) A copy of the Cultural Connection Plan. 6. Notice to guardians, parents, and care providers must be served personally. 7. The notice to a band, as defined in CYFEA , or any other Indigenous governing body as defined in the Act respecting First Nations, Inuit and Metis Children, Youth and Families must include: (

a) Notice of the nature, date, time and place of the hearing. 8. Service of notice to a band or any other Indigenous governing body must be made: (

a) by leaving the documents at the registered office of the Indigenous governing body; (

b) by sending the documents by recorded mail to the registered office of the Indigenous governing body; (

c) by serving an individual who appears to have management and control responsibilities for the Indigenous governing body at its registered office; or (

d) by sending or emailing the documents to an address or email provided by the Indigenous governing body as being suitable for receiving notice. 9. If the applicant is unable to effect service, the applicant must apply to the Court for an Order for Substitutional Service or for an Order to Dispense with Service. 10. Upon serving the required notices, the applicant must file an Affidavit of Service for each individual or entity. Absence of Parties at the Hearing [ 42 ] When a guardian fails to appear in child protection hearings, a Court may make a decision in that party’s absence.

The Court is required, however, to ensure that the guardian has been given an opportunity to present their case. It is incumbent on the Court to conduct what has come to be known as a “B(

N) Inquiry” to determine whether further attempts to secure the guardian’s presence would be productive and in the best interests of the child. ( B.N. v. Alberta (Director of Child Welfare) , 2002 ABQB 960 ). The court must consider the nature of the notice that was provided; the pattern of attendance at previous court proceedings; the guardian’s ability to receive messages or correspondence; the number of adjournments leading up to the trial; and the extent of the guardian’s involvement with the child leading up to the hearing. [ 43 ] With respect to band participation in proceedings, s.53.1(3) of CYFEA states:

53.1(3) If a band is served in accordance with section 53(1.1) and does not attend Court the first time the matter is heard in Court, no further notice to the band is required and the Court may proceed to hear the application if the Court considers it to be in the best interests of the child to do so. [ 44 ] The Act Respecting First Nations, Inuit and Metis Children, Youth and Families requires that additional parties be given notice – parents, care providers, and other Indigenous governing bodies of communities to which the child belongs, but is silent with respect to proceeding in the absence of one or more parties. [ 45 ] In my view, if any of the parties are not in court for the hearing of a private guardianship application, it is incumbent on the Court to conduct an inquiry, analagous to a B(

N) inquiry, to determine whether the Court should proceed in the absence of that party. This includes the absence of an Indigenous governing body. Notice is not just pro forma – it is to attempt to engage the child’s Indigenous community for the long-term welfare and best interests of the child. This need not be an exhaustive process, but a Court must act judicially, and turn its mind to whether proceeding in the absence of one or more parties is in the best interests of the child.

Application of Procedural Requirements in the Present Case KRC’s Biological Mother [ 46 ] Representations were made, which I accept, that KRC’s mother continues to struggle with substance abuse issues. I also accept that she has been supportive of KRC’s placement with the Applicant AMF throughout, and in fact was instrumental in having the child placed with the Applicant and her mother as a kinship placement many years ago.

I accept the Applicant’s submission that KRC’s mother has supported permanency with the Applicant, and wished for her to adopt the child, something which did not take place because of the resistance from the child’s Indigenous community. I also accept the Applicant’s submission that she advised KRC’s mother verbally that she was bringing an application for private guardianship quite some time ago when they unexpectedly ran into each other at a function. On occasion, KRC’s mother has reached out to the Applicant though Facebook, and she has facilitated contact between KRC and her mother.

The Applicant has ensured that the child remains connected to her extended maternal family, some of whom were present in court to support the application. However, KRC’s mother is not easily locatable for the purpose of service. In all of the circumstances, I dispensed with notice on KRC’s mother. KRC’s Biological Father [ 47 ] Representations were made, which I accept, that KRC’s father’s whereabouts are unknown, and that the Applicants are not aware of any other means of service by which the father could reasonably be expected to receive notice.

I was also advised that he has had virtually no contact with KRC since she was an infant. I dispensed with notice on KRC’s father. Indigenous Governing Bodies [ 48 ] KRC is connected to two First Nations – Enoch First Nation through her father, and Kainai First Nation through her mother. Kainai was represented by counsel who was present at the proceedings. I am satisfied that Kainai received proper notice of the application. [ 49 ] With respect to Enoch, I was advised, and I accept, that Enoch was aware of the application, and had been served with notice.

Although no Affidavit of Service was filed, I deemed notice to Enoch First Nation to be good and sufficient. I was further made aware that the First Nation participated in a number of discussions regarding the application in order to provide input. Enoch had previously appeared in court. I was further advised that Enoch supported the application. However, no one appeared on behalf of Enoch First Nation, and no written consent was provided. [ 50 ] I was satisfied that it was not in KRC’s best interests to further delay proceedings to attempt to secure Enoch’s attendance in court.

I was satisfied that Enoch was not present because, in all the circumstances, it had had input into the discussions to ensure that KRC remained connected to her communities and was supportive of the private guardianship application. Priority of Placement Requirements under the Act Respecting First Nations, Inuit and Metis Children, Youth and Families [ 51 ] Section 16(1) of the Act reads as follows: 16

(1) The placement of an Indigenous child in the context of providing child and family services in relation to the child, to the extent that it is consistent with the best interests of the child, is to occur in the following order of priority: (

a) with one of the child’s parents; (

b) with another adult member of the child’s family; (

c) with an adult who belongs to the same Indigenous group, community or people as the child; (

d) with an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs; or (

e) with any other adult. [ 52 ] In my view, a Court hearing a private guardianship application of an Indigenous child must conduct a s.16 Priority of

Placement analysis. [ 53 ] It is clear from the evidence before me that the child cannot be placed with either parent at this time as protection concerns persist. It is also clear that an exploration of extended family members occurred, and that, at this time, no placement with the child’s family is available. I note that members of the child’s extended family were present in court to support the application. [ 54 ] The Court must then consider alternative placements with an adult who belongs to the same Indigenous group, community of people as the child, and whether those are in the best interests of the child.

I note that both Applicants are Indigenous, although neither belongs to the communities to which the child belongs. It is not the role of the Court to direct that an Applicant conduct a search for alternative placements. There are no competing claims before me – just the applications of AMF and BA. The Indigenous governing bodies to which the child belongs were notified of the applications well in advance and would have had the opportunity to explore alternative placements within their communities.

I note that Kainai First Nation is consenting to the applications, and Enoch First Nation, while it hasn’t filed a formal consent, has been involved and is supportive of the applications. It is of some import as well that the placement of KRC with AMF is a kinship placement that was initiated by KRC’s mother. It is also of significance that a robust Cultural Connection Plan has been provided, one which was prepared with through discussion and negotiation between the parties, including the child’s Indigenous communities of origin.

The plan contemplates ongoing connection, which I have no doubt will forge a lasting connection between KRC and her communities. The plan ensures that she will know that she belongs to Indigenous communities that value and cherish her. The Applicants are to be commended for understanding the importance of this piece to KRC and for nurturing this connection. Test under

Section 56 of CYFEA [ 55 ] Section 56(1) of CYFEA reads as follows: 56(1) If the Court is satisfied that (

a) the applicant is able and willing to assume the responsibility of a guardian toward the child, (

b) it is in the best interests of the child, and (

c) the child has been in the continuous care of the applicant for a period of at least 3 months immediately prior to the hearing, the Court may make a private guardianship order appointing the applicant as a guardian of the child. [ 56 ] I am satisfied that the Applicants have met the test articulated in s.56 of the Chid, Youth, and Family Enhancement Act . The Applicant, AMF, has been the child’s caregiver since she was an infant, and BA for the past year.

The Home Study Report describes a loving, secure home for KRC, one that understands the importance of reinforcing KRC’s connections to extended family and her home communities. The Applicants appear keenly aware that a sense of belonging are critical to her flourishing.

Indeed, this was apparent in court, when KRC proudly introduced the people in attendance – members of her community and extended family. [ 57 ] Counsel for KRC consented to the applications on her behalf. [ 58 ] Counsel for Kainai First Nation consented to the applications. [ 59 ] Counsel for the Director consented to the applications. [ 60 ] I am satisfied that the Applicants are both willing and able to assume the responsibility of guardians toward KRC. I am also satisfied that the order is in KRC’s best interests. The applications for Private Guardianship are granted.

The Cultural Connection Plan will be appended to the Private Guardianship Order as forming part of that Order. A Custody Order is granted. Heard on the 27 th day of October, 2023. Dated at the City of Edmonton, Alberta this 21 st day of December, 2023. D. Dalton A Justice of the Alberta Court of Justice Appearances:

J. Quinn for the Child R. Reid for Kainai First Nation K. Butler Agent for the Director Self Represented for the Applicant AMF Self Represented for the Applicant BA