Alberta (Child, Youth v. Family Enhancement Act, Director), 2023 ABCJ 147

In the Alberta Court of Justice Citation: Alberta (Child, Youth and Family Enhancement Act, Director) v JG, 2023 ABCJ 147 Date: 20230629 Docket: CP903004202 Registry: Edmonton In the Matter of an Application under

Section 34 of the Child, Youth and Family Enhancement Act Regarding the Child MR Born August 2019 Between: Alberta (Child, Youth and Family Enhancement Act, Director) Applicant - and - JG Respondent Corrected judgment: A corrigendum was issued on July 7, 2023. The corrections have been made to the text and the corrigendum is appended to this judgment. Restriction on Publication Identification Ban – See the Child, Youth and Family Enhancement Act ,

section 126.2. No person shall publish the name or photograph of a child or of the child's parent or guardian in a manner that reveals that the child is receiving, or has received, intervention services. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Decision of the Honourable A. Veylan Assistant Chief Ju stice

I Introduction [ 1 ] This case concerns the best interests of MR, a three-year-old girl born in August 2019 (the “Child”). The Child was apprehended the day after her birth at the Grey Nuns Hospital in Edmonton and she has remained in the care of the Director of Children’s Services since then. The Director has brought a direct application for a Permanent Guardianship Order under s. 34 of the Child, Youth and Family Enhancement Act . The Child’s birth mother, JG, is opposed to the Director’s application, and she submits that the Child should be returned to her care under a Supervision Order.

During the trial, the Child’s biological father, CT, applied for an order declaring him to be a guardian pursuant to s. 20 of the Family Law Act . I found that CT is not a guardian of the Child and dismissed his application. Thereafter, the father took no

part in the proceedings except to make submissions about access at the end of the trial. The Child was represented by independent counsel, who adopted a best interests and entitlements role. Child’s counsel supports the Director’s PGO application. This matter was case managed prior to trial, and upon the mother dismissing her then counsel, the case management judge appointed that counsel as amicus curiae to assist the Court by ensuring that relevant evidence and submissions came before the Court.

At my request, the amicus curiae also assisted JG with the presentation of her case as she was a self-represented litigant for most of the trial. In his closing submissions, the amicus curiae submitted that a PGO was the only realistic option available to the Court. [ 2 ] Child protection matters in Alberta are governed by the Child, Youth and Family Enhancement Act (the “Act”). The first few sections of the Act and several seminal court decisions articulate the core values of Alberta society concerning child protection.

Section 1.1 identifies the best interests of children and the well-being of families as the first two principles guiding

interpretation and the administration of the Act: 1.1 This Act must be interpreted and administered in accordance with the following principles: (

a) the best interests, safety and well-being of children are paramount; (

b) the well-being of families and communities is crucial to the well-being of children; [ 3 ]

Section 2 of the Act sets out several foundational matters to be considered, including the following: 2

(1) If a child is in need of intervention, a court ... 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: (

a) the child’s family has the primary responsibility for the safety and well-being of the child and the family’s well-being should be supported and preserved; ... (

d) the benefits to the child of lasting relationships with the people with whom the child is connected, including family, friends, caregivers and other significant individuals; ... (

g) the importance of stability, permanence and continuity of care and relationships to the child’s long-term safety and well-being; (

h) any decision concerning the removal of the child from the child’s family should take into account the risk to the safety, security or development of the child if the child remains with the family, is removed from the family or is returned to the family; ... (

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 ... (

v) the mental, emotional, spiritual and physical needs of the child and the child’s mental, emotional and physical stage of development; [and] ... (

m) there should be no unreasonable delay in making or implementing a decision respecting the child. [ 4 ] The Alberta Court of Justice has long recognized the importance of maintaining the family unit wherever possible, as articulated by Judge P. Ayotte in Alberta (Director of Child Welfare) v. CB , 2003 ABPC 97 at paragraph 24 : Permanent guardianship is the most devastating invasion of the family unit permitted by law. It is not an order which should be made lightly.

The very nature of the test the statute imposes makes it clear, in my view, that our society is still committed to the principle that, where reasonably possible, it is always in a child’s best interest to remain within its birth family. [ 5 ] However, the well-being of families is not the only, or even the paramount consideration. As Chief Justice C. Fraser emphasized in the Alberta Court of Appeal decision T v. Alberta (Director of Child Welfare) , 2000 ABCA 182 at paragraph 14 :

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. There is no doubt that there can be few thingsmore devastating to a parent and the relationship with his or her children than to face proceedings by the state based on an alleged failurein parental duties: New Brunswick (Min. of Health & Com Services v. G.(J.)) (SCC), [1999] 3 S.C.R. 46.

But here, theLegislature has sought to strike what it considers to be an appropriate balance between the state’s responsibility to protect children on theone hand and the guardian’s nurturing responsibility on the other. These respective responsibilities, often referred to as rights, may be inaccord or in conflict depending on the particular circumstances. [6] Trial of the case at hand was procedurally unwieldy and was an exercise in balancing these sometimes conflicting corevalues.

The trial included the following elements: i. an application by CT to be declared a guardian (dismissed) ii. an application by JG for a change of venue (dismissed) iii. an application by the Director for the appointment of a litigation representative for JG (heard by a different judge anddismissed) iv. an application by JG for an interim access hearing (heard by a different judge and dismissed) v. after JG dismissed her third trial lawyer, Legal Aid Alberta declined further funding and JG brought a Rowbothamapplication for an order directing that counsel be appointed for her (dismissed) vi. a mistrial application by JG (dismissed), and vii. four adjournment applications by JG (all dismissed).

Seven voir dires were conducted, 46 witnesses called and 156 exhibits entered at trial. Trial was originally booked for 10 days but took51 trial days to complete. The scheduling demands of the case severely challenged the Alberta Court of Justice to respond as the Courtwas already running at capacity and its resources were taxed by the Covid pandemic. Once the trial exceeded the scheduled 10 days,dates were patched together when an available courtroom and clerk could accommodate the

schedule of the judge and three counsel.Consequently, the trial proceeded at a snail’s pace: 22 days of trial in 2021 and 18 in 2022. Most unacceptably, the child was an 11-month-old infant when the trial began and a three-year-old toddler when it ended. II Facts A. Birth and Apprehension of the Child [7] In mid-August 2019, the Police and Crisis Team attended JG’s apartment in response to a community report of concern.

At43 weeks, JG was two weeks overdue in her pregnancy and the PACT Team convinced her to accompany them to the Grey NunsHospital due to the risk of an unplanned home birth without medical attention. At the hospital, JG presented as mentally unstable: shedidn’t want to give birth and would not consent to a C-section procedure. Dr. S. Govenlock certified JG under s. 2 of the Mental Health Act because she was refusing reasonable obstetrical care while in the 43rd week of gestation notwithstanding ultrasound and gestationalage were concerning for maternal and fetal compromise.

Ultimately, the Mental Health Act certification was not relied on, as the nextday JG consented to a C-section. [8] The day after the Child’s birth, Children’s Services was contacted by hospital personnel concerning the welfare of the Child.Shinto Palani, a Children’s Services assessor with the Northeast Office, attended at the Grey Nuns Hospital and consulted with thehospital social worker and other staff concerning JG’s circumstances and the Child’s well-being. I accept her evidence.

The hospitalstaff’s concerns for JG’s mental health continued: she would not drink water as she thought something had been put into the water, andshe asked the hospital social worker to put away her cell phone as she thought the worker was recording their conversation. JG waserratic emotionally: sometimes calm, then escalating and yelling a moment later. When escalated, JG appeared to almost forget that shewas holding the Child.

Conversely, at other times she held onto the Child very firmly and wouldn’t let the Child out of her arms,aggressively refusing to let hospital staff near the Child and insisting on holding the Child during assessments or routine procedures.Careful monitoring of the Child was necessary due to the risk arising from the Child being born with the umbilical cord knotted at twopoints. The hospital instituted a 24-hour nursing watch in the mother’s room and was concerned that they did not have authority to stopJG from leaving the hospital with the Child. The psychiatrist Dr. R.

Purdy certified JG under the Mental Health Act and she wastransferred to a closed psychiatric ward, from which she was released one week later. [9] The decision to apprehend the Child was made at a third-party consultation meeting.

I received evidence on the grounds forapprehension from Deborah Gullickson, the manager of the Clareview Neighbourhood Centre Children’s Services office; Shinto Palani,one of the assessors who attended at the Grey Nuns Hospital; Judy Shine, the then Acting Associate Director for the NortheastClareview Children’s Services office; and Danielle Buyse, a casework supervisor with Children’s Services.

The role of the third-partyconsult is to provide an objective lens and prompt critical questioning during the apprehension decision-making process. [10] The protection concerns at the time of apprehension were neglect, risk of physical injury to the Child, and JG being unwillingor unable to protect the Child from emotional injury.

There was concern about JG’s mental health because she did not want to allow thebirth of the Child and did not appear to comprehend the risk to the Child of further delaying the birth, was suspicious of the nursing staff,and she was unable to regulate her emotions and was escalating at the hospital. She had been certified under the Mental Health Act by ahospital psychiatrist. There was also a history of domestic violence and severe domestic disharmony between her and the Child’simputed biological father, which can cause emotional harm to the Child and potentially affect the physical development of a child’sbrain.

The decision-makers’ experience was that when an individual struggles with their own mental health, they struggle to meet the

emotional and physical needs of a child in their care. They also considered there was a risk that JG would inadvertently physically harm the Child in an uncontrolled escalated state. In addition, they were concerned that JG was not capable of making safe decisions for the Child when in an escalated state. [ 11 ] JG refused to identify the father and she was unable to identify the names or contact information of anyone who could assist her with the Child. Since no other caregiver could be identified, the third-party consult team took the decision to apply for an apprehension order, which was granted. B.

The Child’s Circumstances [ 12 ] The Child is now three years of age and during the course of the trial, the Child was in a foster care placement. There is no evidence that the Child has any significant medical issues or that she is in any sense a special-needs child. C. JG’s Circumstances [ 13 ] JG is 29 years of age and lives alone in an Edmonton apartment. The Director has formally stipulated that JG is financially able to look after the Child, and that her home is a suitable residence for the Child.

JG’s first child was born in December 2013, a Permanent Guardianship Order was granted in respect of that child in October 2015 and the child was adopted in January 2018. D. The Evidence of Dr. Debarsi Das [ 14 ] The Director called Dr. Debarsi Das to testify and Dr. Das was qualified as an expert in the field of psychiatry and psychiatric assessment. Dr. Das is a duly qualified psychiatrist and a member of the College of Physicians and Surgeons of Alberta. He obtained his MD at St.

George’s University School of Medicine in April 2009, completed a three-year clinical research fellowship in New York City and then completed a five-year postgraduate residency in psychiatry at the College of Medicine, University of Manitoba in 2016. Dr. Das attained his specialist designation in psychiatry and has been a Fellow of the Royal College of Physicians and Surgeons of Canada since May 2016. He has an active certification as a Medical Review Officer for the American College of Occupational & Environmental Medicine and is a Medical Review Officer with ACESO Medical in Leduc. Dr.

Das is currently a consulting psychiatrist for 15 clinics in the greater Edmonton area and has provided psychiatric care to approximately 12,000 patients. As at the date of trial, he renders psychiatric diagnoses for about 3500 patients annually. He has previously completed approximately 75 independent medical examinations. Dr. Das had been qualified as an expert in psychiatry on one prior occasion, at the Court of Justice level. [ 15 ] In completing JG’s Independent Medical Examination, Dr.

Das’ methodology was to synthesize his own in-person examination and objective testing with any prior psychiatric reports, other medical reports, psychological reports, lab investigations and collateral information to formulate his medical opinion. In addition to his review of the collateral material, Dr. Das interviewed JG for over three hours on November 5, 2019 before she began the objective testing. [ 16 ] Dr. Das reviewed a variety of collateral information, which he described as significantly more evidence to make a diagnosis than he previously ever had on one individual. In his report, Dr.

Das lists 10 categories of collateral documents and information which he reviewed, all of which was entered in evidence at trial, with three exceptions:

i) Dr. Das spoke with Children’s Services employees Danielle Buyse and Deborah Gullickson by telephone on November 27 and 29, 2019, respectively. The specific detail of the telephone conversations is not susceptible to entry into evidence; however, Ms. Buyse and Ms. Gullickson both testified at trial and were subject to cross-examination. ii) Dr. Das reviewed summaries from the Edmonton Police Service database concerning JG and the Child’s biological father, CT, which referenced JG interacting with EPS constables, including JG exhibiting verbal and physical aggression and, in Dr.

Das’ words, “JG not following the law.” The specific documents reviewed by Dr. Das were not entered into evidence at trial. Dr. Das indicated that the details of encounters with police officers were less relevant to his opinion than the general nature of JG’s interaction with such authority figures. I have received abundant evidence concerning the general nature of JG’s interaction with such authority figures, including 14 EPS constables and additional witnesses involving multiple interactions with JG, which I summarize later in this decision. [1] iii) In addition, Dr.

Das reviewed a Psychiatric Evaluation of JG as a 15-year-old youth, which Dr. Das received from JG and photocopied with her permission. The Evaluation is undated and was conducted by an unidentified psychiatrist (subsequently identified by JG’s psychiatric expert, Dr. Mowat, as Dr. Maurice Blackman). The Evaluation diagnoses Oppositional Defiant Disorder, Nonverbal Learning Disorder and Disruptive Behaviour Disorder. In addition, it queries “Cluster B.” The substance of the Evaluation is summarized by Dr. Das in his IME Report.

I am mindful that facts on which an expert opinion is based must have an evidentiary foundation or the opinion may be compromised. I am satisfied that Dr. Das’ medical opinion is substantially grounded in evidence accepted by me at trial. [ 17 ] JG arrived for her IME assessment late and dysregulated. Dr. Das noted within a few minutes that JG was irritable and highly emotional, and became dysregulated and verbally aggressive easily over very small triggers. JG became much more dysregulated when Dr. Das brought up the subject of her mother, and she also became dysregulated when she saw the presence of security.

She demonstrated tangential thinking and was fixated on Children’s Services and her mother, from whom she is estranged and who she blames for her current struggles. She was guarded and anxious. She denied mental health issues and paranoia. Dr. Das found she was an unreliable historian, had poor judgement and demonstrated an almost complete lack of insight concerning her deficits. JG was frustrated, irritable, fluctuated emotionally, raised her voice and became verbally aggressive. Dr. Das observed that his presence was agitating for

JG, and he shifted to a more supportive style of interviewing whereupon JG regulated. Dr. Das decided to end the interview portion of the assessment and continue with objective testing once JG again became increasingly agitated and verbally aggressive. The objective testing which was done indicated that JG had mild levels of anxiety, did not indicate any suicidal ideation or behaviour, does not have a mood disorder such as bipolar, has mild depression, and she was not feigning her symptoms. JG was unable to complete the objective testing due to her dysregulation. [ 18 ] Dr.

Das’ clinic has a policy concerning security when there is a potential for aggression during an interview, and prior arrangements had been made for a security guard to be present throughout the interview. This precaution is taken in approximately two percent of Dr. Das’ IME assessments. JG became dysregulated when she saw the security officer and there were times in the interview when JG became dysregulated to the point that Dr. Das felt at risk for his physical safety. [ 19 ] Dr.

Das noted that his observations during his in-person interview and objective testing of JG were consistent with the prior psychiatric and psychological collateral information he had reviewed, including: i. Dr. Das reviewed JG’s August 29, 2019 discharge

summary from the Grey Nuns psychiatric ward after the birth of the Child, prepared by the psychiatrist Dr. P. Carr. Dr. Das considered the discharge

summary key collateral information since it was recent in time (two months prior to Dr. Das’ assessment) and at eight days was the longest-duration psychiatric observation of JG. Her initial presentation was irritable, argumentative, hostile and uncooperative; however, JG regulated after eight days in a structured environment and her mood was more neutral by discharge. When she was discharged, Dr. Carr diagnosed JG with an adjustment disorder with depressed mood and Cluster B personality traits. Dr.

Das explained that “Cluster B” is an umbrella term used to indicate someone who struggles with emotional regulation, impulsivity and dealing with stress, which in turn causes difficulties with their occupation, relationships, parenting and basic day-to-day life functions. ii. Dr. Das reviewed the parenting/psychological assessment of the psychologist Dr. G. Ross prepared in connection with JG’s daughter born in 2014, which was based on objective testing across five days in February, March and April of 2015. Dr. Das noted that Dr.

Ross’ objective testing indicated that JG was hypersensitive, hostile and unforgiving, and she tended to view and portray herself as being relatively free of shortcomings that most other people will admit to. iii. Dr. Das reviewed Dr. L. Flaro’s September 10 th and 11 th , 2015 neuropsychological report also prepared in connection with JG’s elder daughter and Dr. Das noted the many similarities between his observations and the results of Dr. Flaro’s neurological testing. Specifically, Dr.

Flaro noted that JG’s emotions were unstable and she exhibited blaming behaviours of consistently blaming others or external agencies for her own difficulties and shortcomings. JG had borderline intelligence, problems with her attention skills and speech comprehension abilities, and her ability to learn is poor. In addition, Drs. Das and Flaro both noted executive dysfunction, including poor judgement and decision-making ability and a marked lack of insight. Dr. Das confirmed the diagnostic value of having multiple snapshots in time across disciplines, including both subjective observations and objective testing.

Documentation of the recurring themes and patterns of behaviour over time was of great assistance to Dr. Das in formulating his medical opinion. [ 20 ] Dr. Das diagnosed JG as suffering from the most intense Cluster B personality disorder: antisocial personality disorder (“ASPD”). ASPD is characterized by seven major symptoms: deceitfulness, impulsivity, irritability, a pattern of irresponsibility, a lack of empathy for those one has hurt, a reckless disregard for the safety of oneself and others, and struggling with observing social norms and maintaining lawful behaviour.

While any three symptoms are required to support the diagnosis, Dr. Das noted that JG exhibits all seven of the ASPD criteria. [ 21 ] Dr. Das testified that a personality disorder is a pervasive illness that spans multiple years, and unfortunately there is no proven method to treat ASPD. Dr. Das opines that in JG’s case, treatment would include regular therapy, living in a regulated and supportive environment such as a group home, and taking antipsychotic or mood-stabilizing medication. There is only a 50/50 likelihood that medication would reduce JG’s symptoms. There are two main hurdles to JG making progress.

To date she has refused to take any medication prescribed by a psychiatrist. In addition, her prognosis is poor due to her lack of insight: because JG does not recognize the existence of a mental health problem, she is not likely to engage in resolving her mental health issues. Consequently, Dr. Das does not offer any prognosis on improvement for JG in the short or medium term.

That said, he noted that ASPD generally improves with age as the individual matures and mellows, and there is likely to be some improvement in JG’s personality disorder as she enters her 50s. [ 22 ] Due to JG’s verbal aggression and unruly conduct at a supervised visit with the Child on November 28, 2019, Dr. Das recommended in his IME that JG’s visits with the Child be suspended until she takes antipsychotic medication to reduce her impulsiveness and reduce the intensity of her emotional dysregulation.

He specifically recommended that the medication be injected and documented at her family doctor’s office, as Dr. Das did not have confidence that JG would self-administer the medication orally. [ 23 ] Dr. Das noted JG’s long history of emotional dysregulation and also recommended dialectical behaviour therapy for JG to regulate her emotions, increase her distress tolerance, enhance her mindfulness and enhance her interpersonal effectiveness. He explained that DBT focuses the patient on how to lower their emotional state in the moment when they are dysregulated. [ 24 ] I found Dr.

Das’ IME and medical opinion persuasive. Taking into consideration Dr. Das’ methodology, the significant volume of collateral material at his disposal including the consistency in observations from multidisciplinary mental health professionals over time and the consistency between objective testing and subjective observations, I accept Dr. Das’ expert medical opinion and find that JG suffers from a deeply-ingrained antisocial personality disorder. E. JG’s Interactions with EPS [ 25 ] As referenced by Dr. Das, JG has a long-standing history of mental health issues and maladaptive behaviour.

His diagnosis that JG suffers from an antisocial personality disorder was supported at trial by a considerable body of evidence which I accept,

beginning in February 2015 and continuing up to the trial itself. It is important to note the history of JG’s mental health issues because the onset, duration and intensity of her psychiatric disorder casts light upon the probability of future resolution through therapy, and how long that would likely take. [ 26 ] The night of March 1, 2017, Constable C. Frattin responded to a central Edmonton gas station, and following her investigation she arrested a moderately-intoxicated JG for aggravated assault. [ 27 ] On December 12, 2017, at about 5:10 PM Constable B.

Marshman responded to a West Edmonton hotel from which JG was being evicted. JG had locked herself inside a hotel room and was refusing to leave. She appeared intoxicated by a drug and was giggling uncontrollably at everything. [ 28 ] At about noon on January 5, 2018, Constable A. Wood attended at a West Edmonton hotel and arrested a belligerent JG for causing a disturbance.

She was refusing to leave the hotel and was screaming profanities at the receptionist, including calling him a “fucking chink dog.” Constable Wood was concerned that JG was going to assault the receptionist, so he intervened, arresting and handcuffing JG and placing her in the back of a police cruiser. JG was transported to EPS West Division where she again became belligerent and argumentative, and refused to leave the building. [ 29 ] On February 14, 2018 at about 3:35 AM Constable K. St.

Louis was dispatched to a Northeast Edmonton apartment where he encountered a grossly-intoxicated, screaming and very belligerent JG standing outside CT’s grandmother’s apartment. JG alleged she had been assaulted by CT. Constable St. Louis described her as verbally aggressive, uncooperative and very combative with the police for no reason. [ 30 ] On August 16, 2018 at about 4:15 AM Constable M. Durec responded to a Southwest Edmonton location where he found a slightly intoxicated JG standing in front of an apartment building from which she had been evicted.

JG became argumentative and demanded that Constable Durec force her landlord to give her $380 which she said was owing to her. [ 31 ] On August 19, 2018 at about 11:00 AM Constable K. McGrath was dispatched to a Northeast Edmonton Dollar Store. On arrival she and her partner separated JG and CT from an altercation on the sidewalk in front of the store. CT was assessed by Emergency Medical Services and JG was arrested and charged with assault causing bodily harm. [ 32 ] On October 1, 2018 at about 2 AM Constable L. Clarke responded to a West Edmonton location where he located an extremely intoxicated JG.

JG told Constable Clarke that she and a male acquaintance had been yelling and pushing each other on the street. JG was very belligerent with the police and she was handcuffed and placed in the back of a police cruiser. The police transported her to a central Edmonton location at her request, and as she got out and walked away, she told Constable Clarke to “fuck off.” [ 33 ] On October 1, 2018, at about 3:45 AM Constable B. Eilersen responded to a noise complaint at a central Edmonton apartment building. He located JG passed out in the third-floor stairwell.

Upon being roused, JG began shouting and told Constable Eilersen to “fuck off.” Constable Eilersen escorted JG out of the building since she was not a resident, and once outside she began screaming at the police. JG was arrested for public intoxication, handcuffed and transported to her residence in the back of a police cruiser. She yelled constantly during the trip home. [ 34 ] On October 1, 2018 at about 11:30 PM Constable D. Rathy responded to a downtown Edmonton restaurant and upon entering the back kitchen area he found an off-duty EPS constable struggling to apprehend a screaming JG.

Constable Rathy handcuffed JG and arrested her for theft under $5000, mischief and assault. [ 35 ] On June 20, 2019, at about 8 PM Constable C. Clark responded to the northeast Edmonton intersection of 58th Street and 137th Avenue, where he located CT and an intoxicated JG yelling and screaming at each other in the center median of 137th Avenue. JG was belligerent and erratic. Constable Clark handcuffed her and placed her in the back of the police cruiser to prevent her from running into oncoming traffic. [ 36 ] On October 27, 2019, at about 5:45 PM Constable J.

Carter was dispatched to an Edmonton apartment building. Constable Carter located an abrasive and clearly intoxicated JG in one of the suites and at the request of the suite’s occupant escorted her outside since she was not a resident of the building. [ 37 ] On November 18, 2019, at about 3:40 PM Constable M. D’Avignon was dispatched to the Northgate Transit Centre in Edmonton where she located a handcuffed JG positioned between two peace officers. Constable D’Avignon arrested JG for assault and placed her in the back of a police cruiser.

JG was shouting and called one of the involved parties a “fat piece of fucking shit.” While in the back of the cruiser, JG purposely swung her head against a partition in the vehicle. JG shouted and called Constable D’Avignon a “fucking bitch” and a “retard” as the constable transported JG to the Northeast Division station. At the police station, JG screamed continuously while being searched and placed in a cell to calm down. Once in the cell, she continued shouting and kicking at the door of the cell. [ 38 ] On March 28, 2020 at about 2:45 PM Constable E.

Jones was dispatched to the Northeast Community Health Center, where he located JG seated in the back of a peace officer’s cruiser spitting, screaming and smashing her face against the window. With the peace officers’ help, Constable Jones removed JG from the vehicle and placed a spit mask over her head. He then arrested JG; however, she continued screaming, yelling, spitting and crying while flailing about on the ground. Constable Jones then transported JG to the EPS Northeast Division Station where he handcuffed her to a wall in a cell to prevent her from injuring herself.

She continued kicking, screaming, crying and wanting to fight with Constable Jones and other officers. [ 39 ] On September 21, 2020 at about 10 PM Constable E. Jones was dispatched to JG’s apartment in Northeast Edmonton. JG was irate and angry upon Constable Jones entering her suite. She said she wanted Constable Jones to charge the entire organization of Children’s Services for the illegal apprehension of her child.

During the interaction, JG became increasingly irate and started yelling loudly once she recognized Constable Jones as a police officer who had dealt with her previously, and at that point she told him to “get the fuck out.”

F. JG’s Interactions with Children’s Services and Visits with the Child [ 40 ] The Director called several employees of Children’s Services and related service providers to testify about JG’s interaction with them and with the Child. After the August 2019 apprehension, JG had supervised visits with the Child until a November 28, 2019 incident, after which JG’s visits were suspended.

The suspension of visits was formally confirmed by a March 5, 2020 Interim Order on Adjournment which provided that the resumption of JG’s access was conditional upon, among other things, JG taking antipsychotic medication administered by injection by her family doctor. JG’s supervised visits were reinstated by a January 24, 2022 Consent Interim Order on Adjournment which provided, among other things, that JG’s visits could resume as recommended by a therapist.

Accordingly, in the first year of the Child’s life, JG’s visits were limited to August to November 28, 2019. [ 41 ] The earliest incident in respect of which I received direct evidence was a February 4, 2015 incident which occurred in the lobby of the Children’s Services Central Office. JG was at a supervised visit with her infant daughter born December 2013 (not the subject of the current PGO application). The visit was scheduled to end at 11 AM, and at 11:25 AM the caseworker Nicole McLeod told JG that the visit was over and it was time to get the baby ready to leave.

JG escalated and moved toward the lobby door with the baby in her arms. Ms. McLeod intervened and told JG that she could not leave the building with the baby and was trying to negotiate the return of the child. The casework supervisor Kimberly Thai heard the commotion and when she entered the lobby, JG was yelling and screaming at Ms. McLeod. She called Ms. McLeod a “dirty Indian” and told her to get out of the way. In an attempt to de-escalate the situation, Ms. Thai stood between JG and Ms. McLeod. JG swung her arm backwards in the direction of Ms. Thai and Ms. McLeod. Ms. Thai is significantly shorter than Ms.

McLeod and JG’s arm swung over Ms. Thai’s head and also missed Ms. McLeod, who was standing just out of arm’s reach. As Ms. McLeod stepped back, JG left the Children’s Services building with the child, followed by Ms. Thai. Another caseworker called 911. JG walked about half a block to an adjacent office where JG and Ms. Thai were offered a small room to sit down. JG calmed down and by the time the police arrived JG had de-escalated and she walked with the police to put the baby in the worker’s car.

The case workers Nicole McLeod, Kimberly Thai, Lynda Smith, Rebecca Guerin and Lindsay Switzer were all involved in or witnessed the incident; all wrote contemporaneous EPS Witness Statements or Children’s Services Contact Log Notes; all testified at trial and all recounted substantially the same details, with only minor, immaterial discrepancies.

On the other hand, when asked in cross-examination whether she took a swing at Kimberly Thai, JG responded: I want to say that that’s a false allegation, and there’s nothing to substantiate that, and the police did attend that day because they said that I left the office. And the police report did not result in charges or anything in that nature.

I prefer the evidence of the caseworkers to that of JG and I find that the incident occurred as described by the caseworkers. [ 42 ] In August 2019 Trevor Stroud, a corporate security advisor for Children’s Services conducted a risk assessment of JG to determine whether she posed a risk to Children’s Services staff or sites. Mr. Stroud was with the Canadian Military Police from 1991 to 2012 and for the last eight years of his military career he was with the Canadian Forces National Counterintelligence Unit where he did risk assessments on an ongoing basis.

He conducted over 300 risk assessments at a national or regional level for the Department of National Defence. He was also assigned to overseas deployments in Afghanistan, Kosovo and Bosnia and conducted ongoing risk assessments for seven months in Vancouver for the 2010 Olympics. He identified JG as a complex client who posed a safety risk or security concern for case workers in the performance of their duties. Complex clients are categorized into three groups, Group 3 being those who have a risk of committing a violent act or with a criminal background that would pose a safety concern for workers.

He designated JG as a Group 3 risk based on her past and current behaviours directed at Children’s Services employees in accordance with a security audit he conducted including a review of the Alberta Public Safety Application database. He drafted and issued a Security Bulletin on August 26, 2019, which was reviewed and reissued on May 5, 2021. The Security Bulletin identified JG as a security risk who has the potential for exhibiting aggressive, violent and unpredictable behaviour.

Among other things the Bulletin directed that JG should not be given access to any Children’s Services locations without an approved appointment and that the EPS should be contacted if she refuses to leave or becomes threatening. Security Bulletins are issued under the Occupational Health and Safety Act , under which the employer has a responsibility to identify hazards within the workplace that pose a safety concern for employees, with a concomitant obligation to address the safety hazard. Two Communication and Limited Access Protocols were issued to JG, dated December 5, 2019 and May 5, 2021.

Among other things the December 5, 2019 letter identified the casework supervisor Gail Brightly as the sole designated contact person authorized to communicate with JG regarding her file. It provided Ms. Brightly’s email address and telephone number and restricted JG to emailing and telephoning Ms. Brightly once per day. Communication through text or fax was prohibited and JG was notified that she could not attend any Children’s Services offices without a prearranged appointment.

The May 5, 2021 letter was to the same effect, although it designated the manager Deborah Gullickson as the sole contact person and advised JG that she was restricted to one email per week and one telephone call per week, on Friday between 9 AM and 11 AM. It also informed JG of a monthly service team meeting to take place on the fourth Thursday of every month between 1:15 and 2:30 PM. Ms. Brightly testified that prior to the Communication Protocol being instituted, JG emailed her almost daily, and sometimes 40 or 50 times in a day. As of August 2019, Ms.

Brightly had case managed over 1000 Children’s Services files, and she had never seen this type of communication protocol instituted previously. [ 43 ] Jonathan Pfuetzner was a home support worker with Ubuntu Children & Families, a collaborative service delivery agency on contract with Children’s Services to provide support to families. In that role, Mr. Pfuetzner coordinated supervised visits between JG and the Child from late September to November 28, 2019.

The visits were conducted at the EPS Northeast Division Station because Children’s Services considered it was necessary to hold the visits at a police station to ensure the safety of the Child and the visit supervisors. Mr. Pfuetzner testified that the most challenging aspect of the supervised visits was the unpredictability of JG’s mood. Specifically, JG could be triggered by unpredictable factors: whether a child case worker chuckled at something, whether the chairs were moved in the wrong way, or whether the child began crying for any reason. On several occasions, Mr.

Pfuetzner was concerned when JG became aggravated and moved the Child from arm to arm in an erratic manner without properly supporting the Child’s head. Mr. Pfuetzner noted that JG would respond when corrected but would do the same thing on the next visit. JG frequently escalated during visits and often yelled, screamed and called the visit supervisors derogatory names. When Mr.

Pfuetzner indicated he was terminating an October 18, 2019 visit, JG came towards him in an aggressive manner, grabbed the toque off his head, threw it on the floor and called him a “Fucking Goof,” at which point some EPS officers took JG away to de-escalate. On one visit, JG assumed a “come at me”

posture and challenged another visit supervisor named Terona to a fight. [ 44 ] Amanda Gillard is a family support worker with Ubuntu who supported JG’s supervised visits with the Child from August to November 2019. Ms.

Gillard also supported JG in a broader capacity from August 2019 to June 2021providing emotional support, faxing and printing documents, providing suggestions for available services, assisting JG to register in counselling and parenting classes, providing her with means of transportation, mediating with Children’s Services, and generally helping JG understand what Children’s Services was asking of her. On the positive side, Ms. Gillard confirmed that during visits, JG was very attentive to the Child, playing with, feeding and changing her. Ms.

Gillard also testified that JG escalated repeatedly during each of the visits in response to unpredictable triggers, including if the Child was wearing an outfit that JG didn’t like, if the car seat straps were in her opinion too tight, and if the Child’s bottle was already premade. Ms. Gillard described a visit pattern of JG rapidly escalating and then calming down in a repeated cycle on average three times during a one-hour visit. When escalated, she would raise her voice and swear. When Ms.

Gillard asked JG how she thought raising her voice and yelling during visits affected the child, JG said she didn’t think it affected the Child. Ms. Gillard was also concerned for the safety of the Child when JG moved the Child back and forth from arm to arm. On more than one occasion Ms. Gillard observed JG rocking back and forth energetically with the infant’s head moving side to side close to tables. Ms.

Gillard testified that since Children’s Services was not a guardian, it did not have authority to name the Child who was identified as “Baby G” until JG registered a name for the child in October 2020 at age 14 months. In a similar vein, it was not possible to confirm the paternity of the Child because JG refused consent to provide a sample of the Child’s DNA. In addition, JG refused to consent to the Child receiving her vaccinations and consequently the Child missed her two and six-month vaccinations. Generally, Ms. Gillard’s telephone conversations with the mother did not go well.

It was very common for JG to escalate to the point where Ms. Gillard couldn’t calm her down and Ms. Gillard would end the conversation by hanging up. On one occasion, JG confronted Ms. Gillard aggressively and challenged her to a fight, being highly escalated to the point that Ms. Gillard felt threatened for her personal safety. [ 45 ] Constable S. Cole worked the front counter of EPS Northeast Division Station where JG’s visits with the Child occurred, and he had many conversations with JG in an effort to establish a rapport with her.

He always tried to sit within arm’s length of JG because he saw her handling the Child roughly, almost like a doll with her head flopping around, and he was worried she would drop the baby. Constable Cole was at the front counter on November 28, 2019 when two Children’s Services employees approached him for assistance because JG was refusing to release the Child at the end of a terminated visit. JG was hugging the Child tightly to her chest and had rocked forward in a seated position to prevent anyone from getting to the Child. JG was highly agitated and was yelling and screaming.

Constable Cole summoned several EPS members and together they forcibly restrained JG and removed her grip from the Child as she struggled and resisted. JG was handcuffed and arrested for obstructing a director’s delegate from performing their duty under s.130(

b) of the Act. In her testimony, JG described the incident as follows: ...then the cop, he’s like, Oh, I’m a parent, too, now I’m going to take your child. And I was just holding my daughter and I said – I just let him take my daughter. That’s it. And then all of a sudden the cops were like grabbing me and arresting me and then they said they’re charging me with obstruction.

JG’s version of events does not have an air of reality to it, and I prefer the evidence of Constable Cole. [ 46 ] Toko Assembe was the Children’s Services delegated caseworker assigned to JG and the Child from October 2019 to approximately July 2021. I found Ms. Assembe to be an intelligent, clear and fair-minded witness, and I accept her testimony.

She confirmed that JG had not given her consent to name the child, had not consented to DNA testing to determine the paternity of the Child (which in turn affected permanency planning), and had not given consent to any of the sets of vaccinations required during the first year of an infant’s life. Because of JG’s Group 3 security risk status Ms. Assembe did not meet her in public locations other than a police station, and the caseworkers and visit supervisors were instructed not to meet her alone. Ms.

Assembe had been a caseworker for four years and prior to that she was a family support worker with Children’s Services, and this was the first time she had heard of visits between a mother and her child being mandated to occur in a police station. While observing visits, Ms. Assembe noted that JG attended all visits and was always on time. She clearly expressed love for the baby, showering the baby with praise and whispering in her ear and telling her how much she loved her. Ms.

Assembe was concerned for the Child’s safety during visits when JG handled her roughly, rocking her back and forth and side to side in a jerking motion from one arm to another. She was also concerned that JG would drop the Child and when the Child’s head came close to the edge of tables when JG became escalated. Ms.

Assembe reported that she found it impossible to progress with concurrent planning with JG because JG regularly escalated at the beginning of meetings and yelled, screamed and used profanity throughout the meeting. [ 47 ] On February 24, 2021, an incident occurred at the Northeast Edmonton Community Health Centre when Ms. Assembe and the Child’s foster mother attended for a medical check-up for the Child. The Child was then18 months old and was laughing, giggling and talkative during the check-up. The foster mother left the clinic and walked to the lobby area while Ms.

Assembe stayed back and spoke with the doctor for a few minutes. When Ms. Assembe returned to the lobby, she saw the foster mother struggling with JG, who was holding the Child above the waist with both hands. The foster mother was trying to keep hold of the Child below the waist and get the Child back. The Child was reaching out with both arms toward the foster mother, and crying out “Mom, mom.” JG became very angry and started yelling “No, she’s not mom. She’s just a friend. I’m the mom.” Ms. Assembe was afraid that JG would leave with the Child and told some nurses to get security.

She thought JG was angry enough to lash out and injure someone and she was afraid for her own safety and that of others. Security arrived promptly and JG released the Child. JG started screaming that this was an illegal apprehension and Children’s Services had stolen her child. She was then escorted out of the building by security. Ms. Assembe described the Child as visibly shaken, upset and crying. When she left the building, Ms. Assembe could see JG with security at a bus stop and could hear her yelling “I love you.

I’ll get you back.” In testifying about this incident, JG said she acted normally, calmly and appropriately during this interaction. I prefer the evidence of Ms. Assembe on all points. [ 48 ] In addition to being the designated point of contact for communication with JG, Gail Brightly was the casework supervisor on the Child’s file from October 2019 to approximately July 2021. Ms. Brightly was responsible for ensuring that Children’s Services caseworkers she was responsible for met standards, and she provided them support, direction and guidance.

She read reports, edited documents, and had financial responsibilities. Ms. Brightly reported that JG was frequently volatile with her and that the majority of telephone calls ended with JG swearing at her and hanging up. Among other things, JG called her a stupid bitch, a fucking bitch, a dumb

bitch, garbage and a dirty animal. Ms. Brightly had numerous conversations with JG in an effort to persuade her to name the child, andon two occasions sent sets of documents to her for that purpose, to no avail. In conversation with Ms. Brightly, JG affirmed that shewould “never, ever” take the medication recommended by Dr. Das as a precondition to her resuming visits with the Child. G.

JG’s Conduct at Court [49] On November 27, 2020 Erin Worobetz, a delegated caseworker with Children’s Services, was seated in the lobby just outsideour trial courtroom waiting to testify in a different courtroom on an unrelated matter. Ms. Worobetz saw JG walk into the lobby area,throw the courtroom door open, point at CT and yell at him “You’re going down. You’re going to jail. You abused me for 12 days.You’re done.” JG then walked into the anteroom of the courtroom where she was yelling and swearing at someone on her cell phone.She then came back into the lobby area with her lawyer and lunged at CT.

CT hopped a couple of steps and avoided any physical contactwith JG. [50] On April 28, 2021, JG called her treating psychiatrist, Dr. Gordon Mowat, to give expert testimony at trial. Dr. Mowat was inthe middle of his examination-in-chief when court adjourned for lunch. Dr. Mowat later testified that he went to the Law Courts cafeteriawith Toko Assembe and Gail Brightly to get lunch. When JG saw Dr. Mowat with the two Children’s Services employees, she angrilyconfronted Ms. Assembe in a raised voice, saying that they should not be having lunch together. Dr. Mowat, Ms.

Assembe and Ms.Brightly paid for their meals and went to the anteroom of our trial courtroom to eat lunch. Dr. Mowat testified that JG came into theanteroom in an extremely angry, furious state and confronted Ms. Assembe nose to nose, calling her a “black bitch” and a “fat bitch.” Dr.Mowat grabbed JG from behind by both upper arms and with what he described as a great amount of force, pulled her back from Ms.Assembe and out of the room. JG then left but came back a couple of minutes later with a sheriff and demanded that the sheriff removeMs. Assembe and Ms. Brightly from the room.

The sheriff looked in, exchanged a few words with the occupants and left. Dr. Mowat wastaken aback by the intensity and force of JG’s anger towards Ms. Assembe and Ms. Brightly. In her description of the event, JG testifiedthat she wasn’t doing anything wrong, that she was not yelling and not posturing aggressively, and that Dr. Mowat had grabbed her bythe arms for no reason. She denied calling Ms. Assembe a “black bitch,” and she declared that “Dr. Mowat is not trustworthy” in hisevidence about the incident. I prefer the evidence of Dr.

Mowat to that of JG. [51] After court adjourned the afternoon of April 28, 2021, there was some additional interaction between JG and Toko Assembe,Gail Brightly and the Director’s counsel, the specifics of which are not in evidence before me. Ms. Brightly later testified that when shewent home that evening, she made a complaint to the Edmonton Police Service because there was a threat to her personal safety whichshe took seriously. Ms.

Brightly later testified that immediately before court opened the next morning, an EPS member attended outsidethe courtroom and charged JG with three counts of uttering threats against Ms. Assembe, Ms. Brightly and the Director’s counsel.Shortly thereafter, Director’s counsel withdrew as counsel of record. In her evidence, JG alleged that threats were made against her onApril 28, 2021; however, there is no evidence before me that charges were laid against anyone other than JG, and I do not consider JG areliable witness. [52] Dr. Das diagnosed JG with an antisocial personality disorder.

The direct evidence of over three dozen witnesses corroboratedJG’s maladaptive behaviours consistent with the ASPD diagnosis from 2015 through to the start of the trial in July 2020, and during thecourse of the trial itself. In addition, I observed JG’s in-court conduct outside of the witness box which corroborated the evidence ofthose many witnesses as well as Dr. Das’ diagnosis. [53] The Ontario Court of Appeal in R v Owens (1986), (ON CA), 33 CCC (3d) 275 (Owens) discussed the useof observations of the conduct of an accused during the trial but outside of the witness box in the criminal context.

The accused in thatcase had put his reaction to a crisis situation in issue. Specifically, the Crown led evidence that the accused school teacher hardly reactedwhen the school principal confronted him with allegations of sexual assault. The accused testified that his natural response in crisissituations is to passively withdraw.

The trial judge rejected the accused’s testimony on the basis of the judge’s in-court observations ofthe accused’s behaviour, which suggested he was “a very open reactive person.” On appeal, the Ontario Court of Appeal recognized thejudge’s right, in appropriate circumstances, to take into account the judge’s observations of the accused’s in-court conduct. The Courtheld at paragraphs 27 and 29: I am not prepared to say that the learned trial judge fell into error by placing some reliance on his observation of the appellant outside ofthe witness box during the trial.

It is generally accepted that the demeanour of a witness and his manner of giving evidence in the witnessbox are important indicia of his trustworthiness. It is unrealistic to suggest that other observations of a witness by the trier cannot bemade in the courtroom during the trial. These observations are not without some danger. Juries are not invited to make them because ofthe ever-present possibility that an adverse inference could be drawn from the observed reactions of a witness in situations where thewitness could dispel the inference if given the opportunity to do so.

As to the potential unfairness of drawing an inference based on demeanour which the witness has not had an opportunity to explain, Inote that a trial judge does not ask a witness who is in the witness stand for an explanation of the witness's observable physical reactions,such as blushing, perspiring, fidgeting or other manifestations, which may form the basis of an adverse inference. There is no reason whyother observations should require a different treatment. [54] The Ontario Court of Appeal further clarified the rule in Owens in R v TM, 2014 ONCA 854, also in the criminal context.

Attrial, the accused was convicted of six counts of historical sexual abuse against his daughter and step-daughter. The trial judge referred tothe accused’s demeanor of reading something through most of the testimony of one of the complainants. On appeal, the defence arguedthat the trial judge erred by relying on the accused’s demeanor while not in the witness stand as a basis to reject the accused’s evidence.The Crown argued that Owens saved the comments made by the judge. The Court of Appeal distinguished Owens from the case at barand in doing so provided further clarity on the application of the rule.

The Court held at paragraph 57 that observations of in-courtconduct should be restricted to circumstances where the accused puts their general personality, reactions or behaviour in issue. The Courtalso noted that making observations of an accused’s conduct outside the witness box gives rise to fairness concerns, particularly wherethe inference being drawn from the party’s conduct is one which could be dispelled if they were given the opportunity to speak to it.

[ 55 ] In RMB v DTB, 2019 ABQB 826 , an Alberta Court of Queen’s Bench Justice relied on the in-court conduct of the father to support the conclusion that the father’s conduct toward the mother was controlling. The Court noted at paragraph 49 that as soon as the mother finished her evidence, the father “immediately stood and strode to the witness box without having been called to give evidence at that time.” The father’s controlling behaviour was one of the central issues in the trial and there was evidence led by the mother to support this finding.

The father’s in-court conduct corroborated the evidence led by the mother. [ 56 ] Accordingly, there is judicial authority for the proposition that a judge’s observations of a party’s in-court conduct outside of the witness box may be used to corroborate other evidence when that party’s general personality, reactions or behaviour is in issue.

I am mindful that the trier of fact must be alive to fairness concerns where inferences about a party’s conduct could be dispelled if they were given an opportunity to address the point. [ 57 ] In the case before me, JG’s ability to regulate her emotions and provide a safe and stable environment for the Child is directly in issue. Dr. Das testified that JG’s ASPD is characterized by, among other things, deceit, a pattern of irresponsibility and an inability to regulate her emotions.

Throughout the course of the trial, I made frequent in-court observations of JG’s conduct including her deception, irresponsibility and inability to regulate her emotions which are apparent on the face of the record and which corroborated Dr. Das’ diagnosis of antisocial social personality disorder as well as the evidence of many witnesses, including the following examples: i. the morning of April 28, 2021, the opening of trial and cross-examination of JG’s expert witness Dr.

Mowat was delayed for one and a half hours because JG slept in, ii. the afternoon of April 30, 2021, counsel and I were obliged to talk over JG’s escalated statements in order to identify available trial continuation dates before adjourning court, iii. trial did not proceed the morning of July 5, 2021 because JG was dysregulated to the point that a sheriff escorted her out of the Law Courts Building notwithstanding her attendance was required in our courtroom, iv. JG’s expert witness Dr.

Mowat sat waiting and trial did not proceed the morning of August 4, 2021 because JG had failed to attend counsel’s office as arranged to prepare for questioning of Dr.

Mowat, v. the morning of October 28, 2021 JG became dysregulated to the extent that court adjourned and she was removed to cells by the sheriffs, and consequently trial could not continue in the afternoon, vi. the afternoon of August 18, 2022 JG became dysregulated during her representations to the Court and the sheriff intervened, telling her there was no need to raise her voice, and vii. the morning of December 19, 2022 JG attended a case conference remotely and misrepresented to the court that she was in Calgary and could not attend the trial the next day because she would still be in Calgary, whereas at trial the next day counsel advised and JG acquiesced that she was in Edmonton the whole time.

H. The Evidence of Dr. Gordon A. Mowat [ 58 ] JG called Dr. Gordon Mowat as an expert in the field of psychiatry, and he was qualified as an expert in that field. Dr. Mowat obtained his medical degree from the University of Glasgow, studied psychiatry at the University of Oxford for four years and became a Member of the Royal College of Psychiatrists of the United Kingdom in 1977. Dr. Mowat moved to Canada in 1978 and in 1986 became a Licentiate of the Medical Council of Canada. From 1979 to 2012, he was consultant psychiatrist in adult psychiatry at Alberta Hospital Edmonton.

From 2001 until recently he was an active clinical lecturer in the Department of Psychiatry at the University of Alberta and continues an outpatient practice at Counselling and Clinical Services of the University Health Center. He is also a consultant psychiatrist to the Department of Psychiatry at Stanton Hospital in Yellowknife. [ 59 ] As at the date of trial, Dr. Mowat was JG’s treating psychiatrist at the Edmonton Mental Health Clinic. He first met JG professionally in September of 2020 and when he testified, Dr.

Mowat had seen JG for approximately 12 sessions, both in person and remotely due to Covid. [ 60 ] Dr. Mowat’s diagnosis is set out in a three-page psychiatric report dated November 30, 2020. The report summarizes the material Dr. Mowat reviewed in connection with JG, including her medical records since childhood, Alberta Health Services electronic records, the IME conducted by Dr. Das, and the transcript of a February 24, 2020 access hearing conducted before Judge P. Kvill, which was entered as evidence at trial. Dr. Mowat’s diagnosis in his written report differs from Dr. Das in that Dr.

Mowat diagnosed JG with an oppositional defiant disorder with early childhood onset (“ODD”). His secondary diagnosis is borderline intellectual functioning, which is a degree of intellectual disability, also noted in childhood. [ 61 ] Dr. Mowat described JG as being easily angered and dysregulated in her emotions. As someone with ODD, she presents as touchy, resentful, easily annoyed and upset, with irritable moods and episodic temperamental tantrums. She also tends to be defiant and argumentative, often refusing to go along with things or comply with requests, especially from authority figures. Dr.

Mowat also noted that she has a tendency to blame other people for her own misfortunes. Treatment for ODD includes pharmaceutical treatments and two types of psychological therapy: dialectical behaviour therapy and cognitive behavioural therapy. DBT involves mindfulness, addressing distress tolerance, interpersonal effectiveness, and emotional regulation. CBT involves reframing negative feelings of anxiety and depression to achieve changes in mood. Dr. Mowat’s treatment plan focused on helping JG regulate her mood and control her temper through this type of psychological therapy. [ 62 ] In his written report, Dr.

Mowat disagreed with Dr. Das’ recommendation that antipsychotic medication be administered to JG initially by intramuscular injection. He noted that the accepted practice is to administer the medication orally for a week or two so the medication can be stopped if an allergic or abnormal reaction occurs. When medications are administered by injection, they last 2 to 4

weeks and that could be harmful to the patient if there was a negative reaction. [ 63 ] On April 28, 2021, Dr. Mowat was cross-examined shortly after the incident when JG was in a furious state and entered the anteroom, confronting Ms. Assembe face-to-face and prompting Dr. Mowat to forcefully pull her away from Ms. Assembe. Dr. Mowat described the incident as giving him a blast of reality concerning JG.

He then changed his opinion about the appropriateness of administering mood altering or antipsychotic medication to JG, stating that it would be in both JG’s and the Child’s best interest for JG to try the mood stabilizing or antipsychotic drugs. Dr. Mowat declined to agree that the Child would be safe with JG at a visit even if JG didn’t use mood stabilizing or antipsychotic drugs. In the end result, Dr.

Mowat was prepared to recommend the use of antipsychotic drugs for JG; however, he would start with pills at first and turn to injections only after her tolerance to the drug was known. [ 64 ] In his written report, Dr. Mowat also disagreed with Dr. Das’ diagnosis that JG suffers from an antisocial personality disorder. Dr. Mowat’s opinion is that JG’s symptoms associated with antisocial personality disorder were not present to the degree necessary for an ASPD diagnosis. Specifically, Dr.

Mowat commented that an antisocial personality is typically a precursor to violence and there was no evidence of violence or aggression by JG. It must be noted that when he wrote his November 30, 2020 report, there were very significant gaps in Dr. Mowat’s background information concerning JG’s conduct which go to the heart of his written medical opinion. Dr. Mowat acknowledged in cross-examination that he was not aware of any physical aggression by JG in the past five years, whereas I received abundant evidence of such physical aggression. Dr.

Mowat acknowledged in cross- examination that he had not spoken to or received any information from Amanda Gillard or any visit supervisors about what occurred during JG’s visits with the Child, nor was he aware of the February 24, 2021 incident at the Northeast Edmonton Community Health Centre when JG and the foster mother were struggling over the Child. Dr. Mowat was not aware that JG had been assessed as a Group 3 security risk, nor was he aware that JG had argued with the Child’s biological father and lunged at him in the courthouse. During cross-examination Dr.

Mowat agreed that JG exhibits many of the characteristics of antisocial personality disorder, specifically including deceitfulness, impulsivity, a lack of empathy for those one has hurt, and struggling with maintaining lawful behaviour. In the final analysis, Dr. Mowat agreed that it was not unreasonable for Dr. Das to arrive at a diagnosis of antisocial personality disorder. Given the significant gaps in Dr. Mowat’s background information concerning JG, I do not accept Dr. Mowat’s diagnosis of ODD and prefer and accept Dr. Das’ IME diagnosis of antisocial personality disorder. [ 65 ] Dr.

Das provided an analytical framework for circumstances when an IME and a clinical assessment reach differing conclusions. Dr. Das conducted an Independent Medical Examination of JG for a third-party requestor. It is a medical legal examination independent of the doctor/patient relationship and does not involve treatment or prescribing medication. Dr. Mowat conducted a clinical assessment within the doctor/patient relationship: a diagnosis is developed and a treatment plan is created.

They are two distinct processes with different methodologies undertaken for different purposes, and accordingly one cannot compare the conclusions of an IME with the conclusions of a clinical assessment. While Dr. Mowat acknowledged in cross-examination that it is theoretically possible for someone to have both ODD and ASPD, I accept Dr. Das’ explanation that such a diagnosis could be validated only if the same individual underwent two Independent Medical Examinations which reached the differing medical opinions.

A diagnosis of both ODD and ASPD cannot be validated by a clinical assessment and an IME reaching differing opinions. Therefore, I find that JG suffers from an Antisocial Personality Disorder and not both ASPD and ODD. I. The Evidence of Dr. Douglas R. Ginter [ 66 ] Dr. Douglas Ginter is a Fellow of the Royal College of Physicians of Canada practising as a psychiatrist in Edmonton. At her request, Dr. Ginter assessed JG on August 17, 2022 and submitted to the Court an Independent Medical Legal/Psychiatric Examination Report dated November 27, 2022.

Trial evidence had been completed on August 18, 2022; however, with the consent of all counsel, JG was granted leave to reopen her case and tender Dr. Ginter’s IME Report as an expert opinion in the field of psychiatry without producing Dr. Ginter as a witness. All counsel also consented to forgoing their right of cross-examination of Dr. Ginter on his IME Report. [ 67 ] Dr. Ginter diagnosed a Child Parent Relational Problem, Relational Distress with Spouse or Intimate Partner and Adjustment Disorder.

He was unable to determine whether JG had a Non-Verbal Learning Disorder because he did not formally test for that, and he noted that JG denied legal issues other than the history of the apprehension of her child at the Grey Nuns Hospital three years prior and this “may fall into the category of a type of neglect which may or may not be Adult Antisocial Behaviour.” Dr. Ginter summarized by concluding that it is difficult to determine exactly what JG’s struggles are. [ 68 ] There are some significant factual shortcomings associated with Dr. Ginter’s IME Report. Dr.

Ginter focuses his Report on what he describes as a very thorough “Recommendation Letter” dated July 26, 2022 from Brendan Pratt, a PhD candidate and clinical supervisor in therapy and counselling at Family Tree Centre. He goes on to focus his answer to the questions put to him around the plan for supervised visits proposed in the Recommendation Letter. Unfortunately, the Recommendation Letter is not in evidence, and it is not possible to thoroughly understand or evaluate Dr. Ginter’ opinion without it. Also, Dr.

Ginter was given outdated information concerning the critical question of whether JG requires mood stabilizing or antipsychotic medication and Dr. Mowat’s position concerning same. Dr. Ginter understood that Dr. Mowat firmly disagreed with JG receiving injectable mood stabilizing or antipsychotic medications as recommended by Dr. Das because “there is no specific medication that can treat this disorder.” Dr. Ginter was not aware that at trial Dr. Mowat had changed his opinion and stated that it would be in both JG’s and the Child’s best interest for JG to try the mood stabilizing or antipsychotic drugs.

Lastly, and most significantly, Dr. Ginter was not aware of the pervasive emotional dysregulation which characterizes JG’s interactions, referring to it in passing in his report as “There is some emotional dysregulation which was talked about by Dr. Pratt in his report.” [ 69 ] The substance of Dr. Ginter’s report is his response to the questions put to him by the counsel who assisted JG in coordinating the Independent Medical Examination. Dr. Ginter was asked the following questions and provided the following answers: i. Would JG be able to provide a safe and stable home for her child at this time?

Dr. Ginter answered that a year of supervised visits would be needed to determine JG’s capacity to be a safe and caring mother. ii. Would JG be able to provide a safe and stable home for her child if she did not seek treatment? Again, Dr. Ginter answered that a year of supervised visits would be needed to determine the answer to that question. iii. Would JG be able to provide a safe and stable home for her child if she [did] seek treatment and comply with a treatment plan? Dr. Ginter’s answer was the same: a year of supervised visits would be needed to determine the answer to the question. iv. Dr.

Ginter was asked: in Dr. Ginter’s opinion would JG’s diagnoses, if any, impair her overall ability to parent and make safe judgements for her child ongoing? Dr. Ginter did not answer the question that was asked. Instead, Dr. Ginter endorsed the importance of therapy: “Concurrent therapy would help [JG] understand her emotional reactions especially those that would be brought out by raising a young child.” [ 70 ] I conclude from Dr. Ginter’s IME Report that the safety of the Child cannot be adequately protected if the Child was returned to JG at this time because Dr.

Ginter expressed the opinion that a year of supervised visits would be needed to determine whether JG has the capacity to provide a safe and stable home for her child. Further, if it would take a year to determine whether the Child could safely be returned to JG, Dr. Ginter’s report does not support the proposition that the Child can be returned to JG within a reasonable time. [ 71 ] Given the limited and equivocal nature of Dr.

Ginter’s diagnoses, the factual shortcomings in his IME Report detailed above, and his opinion that it would take a year of supervised visits to answer the questions put to him, I am unable to rely on Dr. Ginter’s Report in determining the child protection issues relevant to this case, and I give Dr. Ginter’s IME Report little weight. J. The Evidence of Dr. Marliss Meyer [ 72 ] JG called Dr. Marlis Meyer as an expert psychologist, and I qualified Dr. Meyer as an expert in the field of psychological assessment and treatment. Dr.

Meyer received a Bachelor of Education with distinction from the University of Alberta in 1970, a Master of Education degree from the Department of Educational Psychology at U of A in 1975, and a PhD from the University of Alberta Department of Educational Psychology in 1988. She has been a registered psychologist with the College of Alberta Psychologists since approximately 1981. From 1978 to the present time, Dr.

Meyer has been providing counselling services in a variety of settings including the Glenrose Rehabilitation Hospital, the Edmonton Public School system, Certified Counselling Services, Priority One Human Resources and Cornerstone Counselling. She has been qualified to give expert evidence at court on one prior occasion, at the Court of Justice level. [ 73 ] Dr. Meyer was JG’s treating psychologist from July to October of 2021, during which time JG attended 11 counselling sessions. Dr. Meyer prepared a Counselling

Summary dated October 8, 2021 in which she expressed her professional opinion “that [JG] would be able to behave in a safe manner during professionally supervised visits with her daughter.” [ 74 ] In the course of cross-examination, Dr. Meyer acknowledged that she had not seen or reviewed any of the following material: Dr. L. Flaro’s neuropsychological assessment, Dr. G. Ross’ parenting/psychological assessment, Dr. Mowat’s psychiatric report or visit reports concerning JG’s visits with the Child. In addition, Dr.

Meyer stated in cross-examination that she had never seen JG being disagreeable, belligerent or aggressive. I found Dr. Meyer to be a fair and measured witness; however, I also found that she was missing significant background information concerning JG. In addition, Dr. Meyer’s opinion was narrow in scope. Accordingly, I do not find Dr. Meyer’s evidence helpful or convincing, and I give it little weight. III Law [ 75 ] The Director has applied for a permanent guardianship order under

section 34 of the Act, which provides as follows: 34

(1) The Court, on application pursuant to this Division by a director, may make a permanent guardianship order appointing the director as guardian of the child if it is satisfied that (

a) the child is in need of intervention or is the subject of a temporary guardianship order, (

b) the safety, security or development of the child cannot adequately be protected if the child remains with or is returned to the child’s guardian, and (

c) it cannot be anticipated that the child could or should be returned to the custody of the child’s guardian within a reasonable time. In the case at bar, the Director has applied for a direct permanent guardianship order, and must establish that the Child is in need of intervention at the time of the trial. [ 76 ]

Section 1, the

Interpretation

section of the Act, defines when a child is “in need of intervention” as follows:

(2) For the purposes of this Act, a child is in need of intervention if there are reasonable and probable grounds to believe that the safety, security or development of the child is endangered because of any of the following:

(

a) the child has been abandoned or lost; (

b) the guardian of the child is dead and the child has no other guardian; (

c) the child is neglected by the guardian; (

d) the child has been or there is substantial risk that the child will be physically injured or sexually abused by the guardian of the child; (

e) the guardian of the child is unable or unwilling to protect the child from physical injury or sexual abuse; (

f) the child has been emotionally injured by the guardian of the child; (

g) the guardian of the child is unable or unwilling to protect the child from emotional injury; (

h) the guardian of the child has subjected the child to or is unable or unwilling to protect the child from cruel and unusual treatment or punishment. [ 77 ] Subsections 1(2.1) and (3) of the

Interpretation

section go on to define, among other things, neglect, emotional injury of the child and physical injury of the child for the purposes of the Act, as follows:

(2.1) For the purposes of subsection (2)(c), a child is neglected if the guardian (

a) is unable or unwilling to provide the child with the necessities of life, (

b) is unable or unwilling to obtain for the child, or to permit the child to receive, essential medical, surgical or other remedial treatment that is necessary for the health or well-being of the child, or (

c) is unable or unwilling to provide the child with adequate care or supervision.

(3) For the purposes of this Act, (

a) a child is emotionally injured (

i) if there is impairment of the child’s mental or emotional functioning or development, and (ii) if there are reasonable and probable grounds to believe that the emotional injury is the result of (

A) rejection, (A.1) emotional, social, cognitive or physiological neglect, (

B) deprivation of affection or cognitive stimulation, (

C) exposure to family violence or severe domestic disharmony, (

D) inappropriate criticism, threats, humiliation, accusations or expectations of or toward the child, (

E) the mental or emotional condition of the guardian of the child or of anyone living in the same residence as the child; (

F) chronic alcohol or drug abuse by the guardian or by anyone living in the same residence as the child; (

b) a child is physically injured if there is substantial and observable injury to any part of the child’s body as a result of the non-accidental application of force or an agent to the child’s body that is evidenced by a laceration, a contusion, an abrasion, a scar, a fracture or other bony injury, a dislocation, a sprain, hemorrhaging, the rupture of viscus, a burn, a scald, frostbite, the loss or alteration of consciousness or physiological functioning or the loss of hair or teeth; [ 78 ]

Section 27 of the Act provides that I may make any order available under Division 3 or 4 of the Act, as follows: 27 After a hearing under this Division, the Court may make any order it has jurisdiction to make under this Division or Division 4 if it is satisfied as to the appropriateness of that order notwithstanding that it is not the order applied for. In the case at bar, I have jurisdiction to grant a supervision order under

section 16 of the Act, one final temporary guardianship order as contemplated by section 33(3) of the Act, or a permanent guardianship order as applied for under

section 34 of the Act. [ 79 ] JG proposes that I should return the Child to her under the provisions of a supervision order under

section 16 of the Act which provides as follows: 16(1) A director may apply to the Court in the prescribed form for an order under

section 28 authorizing the director to provide supervision of the child and the persons with whom the child resides if, in the opinion of the director, (

a) the child is in need of intervention, (

b) supervision of the child and the persons with whom the child resides is necessary to ensure that the safety,

security or development of the child is protected, and (

c) there are reasonable and probable grounds to believe that the child’s safety, security or development will be adequately protected as a result of the supervision.

(2) If a director applies under subsection (1

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