JJ v AK, 2023 ABCJ 166

In the Alberta Court of Justice Citation: JJ v AK, 2023 ABCJ 166 Date: 20230720 Docket: FF901017707 Registry: Calgary Between: JJ and JJ Applicants - and - AK 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. Reasons for Decision of the Honourable Justice R.J. O’Gorman Introduction [ 1 ] This is a difficult and complex case. There have been some very strong positions offered and tendered to the Court, including some very passionate principles and beliefs that cannot be easily rectified.

This has also been a strong emotional case involving a number of core values including different legislation, different tests, the definition of family, biological ties, cultural connections, and First Nations self-governance and heritage. In addition, we have the question of what is appropriate for temporary and permanent childcare, and finally, how should we approach what is in the best interests of the child. [ 2 ] The child, NK, will turn six years of age in November 2023. The child was apprehended from the mother on February 1, 2018.

The child was in foster care until May 3, 2018, when the child was placed in the care of her maternal uncle (Mr. JJ) and aunt (Mrs.

JJ). The child had been placed with the uncle and aunt under a Customary Care Agreement (CCA) dated on April 27, 2018. The CCA was prepared and signed by Dilico Anishinabek Family Care (Dilico). In addition, the CCA was also signed by the following additional parties: Long Lac #58 First Nation, Whitefish Bay First Nation, and the biological father, AK. Due to the mother’s addiction issues, she was unable to sign the CCA until May 23, 2018. The mother unfortunately has since passed away.

Interestingly, the uncle and aunt are not signatories to the CCA. [ 3 ] The CCA was called a long-term placement and the uncle and aunt believed that it would continue to exist until the child turned 18 years of age. The father believed that the CCA could be cancelled once he had sufficient childcare in place and that he could properly care for the child. The CCA had a provision that any party could terminate the agreement upon 90 days written notice, which the father provided on October 5, 2021. [ 4 ] Previously, on November 20, 2020, the uncle and aunt filed for guardianship of the child.

Initially, the uncle and aunt had incorrectly filed for private guardianship under the Child, Youth and Family Enhancement Act (CYFEA). On April 7, 2021, the uncle and aunt correctly filed for guardianship of the child under the Family Law Act ( FLA ). The father was not initially served with notice of the uncle and aunt’s application. [ 5 ] The father and his Band, Whitefish Bay First Nation, (now called Naotkamegwanning First Nation), have opposed the uncle and aunt’s application, and seek the return of the child to the father. The uncle’s Band, Webequie First Nation, support the uncle and aunt’s application.

The aunt is an unregistered Metis. The child is currently a registered member of the biological mother’s Band: Long Lac #58 First Nation. The Long Lac #58 First Nation support the uncle and aunt’s application. The mother and uncle (the late mother’s brother) had originally been members of the Webequie First Nation, but the mother had subsequently registered with the Long Lac #58 First Nation. [ 6 ] At trial there were 10 witnesses and 15 exhibits. The trial was heard over five days in June 2023. The evidence of the trial is summarized as follows: Evidence of the Maternal Aunt – Mrs.

JJ [ 7 ] The first witness was the maternal aunt, Mrs. JJ. According to the aunt, they had received a call from the maternal mother- in-law in February 2018 that the child had been apprehended by Children’s Services (Dilico). The aunt was told that no other family members were prepared to assist the child and the uncle and aunt reached out to Dilico. The father of the child was denying paternity, and he did not offer to help the child.

Even when the DNA testing confirmed that the father was the biological father of the child, he still did not offer to help the child. [ 8 ] The aunt testified that according to Dilico, the uncle and aunt were the only persons interested in taking care of the child. The aunt stated that Dilico had informed them that this was a long-term placement plan and that it would continue until the child was 18 years of age. According to the aunt, Dilico had prepared the CCA and that the father had signed the agreement.

Supposedly, the mother was initially not sober enough to sign the agreement. [ 9 ] The aunt stated that they travelled to northern Ontario to pick up the child. In fact, the first thing the aunt and uncle did when they received the child, was to take the child for medical attention in northern Ontario because the child was very sick. Prior to leaving Ontario with the child, the father had a brief visit with the child.

According to the aunt, the child initially was still very sick, pulled her hair out, was irritable, and when hungry, would revert to the fetal position. [ 10 ] The aunt testified that she and her husband have four children of their own, and in particular, they have a four-year-old son who has bonded very closely to the child. The aunt stated that she and her husband have been together for 19 years and that they have been married for 14 years. The aunt confirmed that they had provided to Dilico the necessary police checks and that a Home Study was completed.

In addition, the uncle and aunt required permission from Dilico prior to obtaining or providing services to the child, such as medical visits or applying sunscreen. [ 11 ] The uncle and aunt had sought out counselling for the child, but the father had refused to provide his consent. The aunt stated that she had resigned her position as a registered nurse to help her in the parenting of the child. In 2019, the uncle and aunt took the child to Ontario, and the father requested a brief visit with the child.

According to the aunt, the biological mother at this time was not doing well health-wise, and she was expecting another child. [ 12 ] The aunt testified that the child’s preschool had conducted an assessment for an Individualized Program Plan (IPP). In addition, the child had a school aide, and initially, the child would not talk in public. At some point, the pre-school requested permission from the father for the school aide which the father allegedly did not reply.

Eventually, the child lost the school aide. [ 13 ] The aunt stated that they had originally registered the child in soccer, then skating and now swimming. They had also registered the child in “Sparks” and the aunt had volunteered as a Girl Guide leader to spend time with the child in this activity. According to the aunt, she and her husband decided to proceed in Alberta for permanency planning. The aunt stated that they had notified the mother in Ontario, but the aunt confirmed that they did not have any discussions with the father.

The aunt also confirmed that they had stopped Facebook contact with the father at this time. [ 14 ] According to the aunt, the child presented differently when at home and when at school. At their home the child could be quite loud, whereas at school, the child was reported to be very quiet. When the child started school, the aunt noticed the child had food issues. In addition, the child would not talk in public. [ 15 ] The aunt testified that the child’s school performance has been improving. There was a suggestion that the child should repeat kindergarten rather than move into Grade 1.

The aunt stated that they did not want to set the child up for failure, but they knew the child was excited about the graduation and that her friends were going into Grade 1. Once again, the aunt confirmed they had requested to

register the child into counselling, but the father had refused permission. [ 16 ] The aunt stated that they were informed in November 2021, that the father had cancelled the CCA. According to the aunt, the father told them he was coming to take the child away. The father also told the uncle and aunt that they were to get him the child’s health card. The aunt testified that the next visit the father had with the child was to be supervised. [ 17 ] The aunt described a visit by the father in May 2022, which she called a highly conflictual visit.

According to the aunt, the father had not confirmed the visit until shortly before the visit, and when he picked up the child at the mall, the father was yelling at the aunt. The aunt stated that the child reacted badly, hitting and kicking the father. When they entered the restaurant, the father told the aunt that she was not to join them in the restaurant. According to the aunt, the father ended the visit early. [ 18 ] The aunt stated that the father only responds to them when he wants to. In addition, according to the aunt, when the father does respond, he provides short notice of any proposed visits.

The aunt confirmed that they have offered to take the child to Ontario to visit with the father. [ 19 ] With regard to cultural activities, the aunt stated that they attend approximately three to four events a year. These include round dances and powwows, as well as beading, making moccasins and drumming. They also have a smudging kit and a family Bannock recipe. [ 20 ] The aunt was visibly emotional as she described her hope for the child’s future being filled with happiness. The aunt explained that she is the only maternal figure in the child’s life.

The aunt stated that she is concerned that the child never had the chance to get to know her biological mother. The aunt testified that she loves the child like a mother and an aunt. The aunt concluded her direct testimony by stating that the child “... is my world”. [ 21 ] Under cross-examination by counsel for the father, the aunt was asked whether the father had suggested an Elder rather than a counsellor for the child. The aunt testified that she could not recall. The aunt stated that the father’s contact on Facebook had been sporadic. The aunt referred to the father as a “spectator parent”.

As to the uncle and aunt’s application for private guardianship under the CYFEA , the aunt confirmed that the father was not personally served even though they had contact information for the father. [ 22 ] With regards to the CCA, the aunt testified that they believed it was a long-term agreement intended to have the child in their care until she reached the age of 18 years. Nevertheless, the aunt admitted that they were aware that there was a legal risk that the child could be returned to the father.

When the father terminated the agreement, the aunt stated that they received no proposal as to how the child might be returned to the father. According to the aunt, the father was demanding the immediate return of the child. [ 23 ] As to this trial, the aunt testified that initially they were told the father would be attending by Webex due to childcare issues in Ontario. In fact, the first two days scheduled for trial had to be vacated because the father was unavailable.

When the uncle and aunt found out that the father would be attending in person in Calgary, they offered the father visitation on Saturday and Sunday. According to the aunt, the father never responded, instead telling the uncle and aunt to go through the lawyers. The aunt confirmed that there has never been an overnight visit by the father. The aunt stated that this was because the father is a “form of a stranger” to the child. [ 24 ] Under cross-examination by counsel for the Naotkamegwanning First Nation, previously known as Whitefish Bay Nation, the aunt was asked about the absence of a cultural plan.

According to the aunt, there was a cultural plan attached to the uncle and aunt’s original court application. There was reference made at this time to the “jingle dress” and the suggestion that it was first started by the Whitefish Bay Nation. Evidence of the Maternal Uncle – Mr. JJ [ 25 ] The next witness was the maternal uncle, Mr. JJ. The uncle is a registered member of the Webequie First Nation in Ontario. The uncle confirmed that he and Mrs. JJ have been together for 19 years and married for 14 years.

The uncle explained that growing up as an Indigenous person presented some struggles, but that now he believes it is more important to cherish the journey of being Indigenous. The uncle stated that he maintains contact with his family members, although logistically, it is difficult to physically return to the Band in Ontario. [ 26 ] The uncle testified that the child came into their care after the child and her two siblings were apprehended from the mother in Ontario. The children had been apprehended by Dilico Anishinabek Family Care.

According to the uncle, Dilico had offered the father the care of all three children, including the child, NK. The father declined. Supposedly, the father questioned the paternity of the child and requested a DNA test. When DNA confirmed that he was the father, Dilico again offered him the care of the child. The father again declined. The uncle stated that he felt bad that he could not take all three of his sister’s children when they were apprehended. [ 27 ] According to the uncle, they had discussions with Dilico about the CCA, that taking the child would be a long-term arrangement.

Once the CCA was signed, the uncle and aunt travelled to Ontario to take the child into their care. The uncle testified that nobody else came forward to care for the child from Ontario. Nobody from the father’s family came forward, and nobody from the Whitefish Bay First Nation came forward. [ 28 ] The uncle explained the importance of learning traditional values from the Elders. The uncle was emotional as he described the daily exposure of children to the Indigenous way of life. The uncle had already mentioned that his father had died when he was young, but that he had learned from his paternal grandmother.

The uncle mentioned the enjoyment of life, the sun coming up in the morning, the importance of teaching the children smudging and drumming. According to the uncle, it is also important to teach the children where they come from. [ 29 ] The uncle stated that he is an environmental consultant working with pipeline companies in Alberta and British Columbia. He is responsible for reviewing all the environmental permits, especially on First Nation Lands. The uncle works on culturally sensitive sites

and traditional lands. The uncle testified that his work often takes him out of town during the week, so his wife is the primary caregiver during that time. [ 30 ] The uncle was asked to describe the child. Once again, the uncle is quite emotional when he calls the child a “ray of light”. According to the uncle, the child is always smiling and learning, and the uncle called the child “caring”. The child is currently attending pre-school five days a week. The uncle has been more involved with the child’s school because he has been temporarily off work.

The uncle stated that, initially, the child’s speech was quite delayed, and the child had trouble voicing what she needed. The uncle believes that the child has received the supports she needs. [ 31 ] The uncle testified that the child has a very strong bond with their youngest son. The uncle stated that usually when he returns from work, the first to greet him is the child, his youngest son, and the family dog. According to the uncle, they have never stopped the biological father from seeing the child.

The uncle does not believe that he has a problem with the father, although he stated there has been a lack of communication, and a lack of responding to inquiries by the father. As an example, the uncle mentioned that March break is held on different dates in Alberta and Ontario. According to the uncle, they had provided suggested dates to the father but received no response. [ 32 ] The uncle stated that the most important person in all of this was the child. Somewhat perceptively, the uncle noted that the child had been put into this whole situation “not of her choice”.

According to the uncle, the father’s initial visitation with the child was sporadic. Nevertheless, more recent visits have been better. The uncle referred to a visit in March of this year where the uncle and aunt had offered the father the use of one of their vehicles, which the father had accepted. [ 33 ] The uncle testified that there has been limited contact by the paternal family members. In fact, the uncle stated that they never received a call from the paternal family inquiring about the child.

The uncle said they have also never received a call or inquiry from the Whitefish Bay Nation, any of the Elders or the Chief of the Band. According to the uncle, there has never been a relationship with the Whitefish Bay Nation. [ 34 ] The uncle took exception to the suggestion he was only a foster placement for the child. The uncle stated very clearly that he was an “Uncle” and that he had taken the child into his care because the child was family.

The uncle confirmed that they did not send any type of bills to Dilico for things like travel or eyeglasses for the child. [ 35 ] The uncle testified that one of their goals was to keep the child out of the Child Welfare system. The uncle noted that after the child had been apprehended in Ontario, she remained for three months in foster care until the uncle and aunt picked up the child.

The uncle wondered why, during the three months the child was in foster care, the father had not made inquiries about the child. [ 36 ] The uncle testified that on December 28, 2021, he was told by the father that the father was coming to Alberta to pick up the child on January 4, 2022. According to the uncle, there was no transition plan provided or any other type of proposal provided by the father, such as a request for increased parenting time. The uncle concluded his direct testimony by stating they had always been looking out for the child’s best interests.

When asked to describe what he means by the child’s best interests, the uncle states that he wants the child to be happy, stable, to be respected, to be in control and to know her relations. The uncle concludes by saying that the most important person here is the child. [ 37 ] Under cross-examination by counsel for the father, the uncle confirms that the father is seeking the return of the child to his care. As to the father terminating the CCA, the uncle noted that there never was a case conference held prior to termination as required in para 7 of the CCA.

The uncle confirmed receipt of a letter from Dilico dated December 23, 2021, stating that the father had terminated the CCA effective January 3, 2022. Dilico also acknowledged the guardianship application by the uncle and aunt before the Alberta Courts. The Dilico letter concluded by stating that the child’s placement will remain as the status quo until a decision is reached by the courts, or an agreement is reached by the parties. [ 38 ] The uncle was asked what a transition plan would look like.

According to the uncle, this case is a unique situation with three Indian Bands involved and additional family connections. The uncle was asked about an incident whereby the father showed the child a photograph of the mother and child did not recognize her. The uncle stated that he was very surprised to hear that, because they have a photograph of the mother in their home. [ 39 ] The uncle was asked about the suggestion that communication with the father was sporadic. The uncle was asked about their Facebook account that appeared to show regular contact with the father.

According to the uncle, they initiated a lot of that contact. The uncle was also asked why they had stopped using Facebook. The uncle stated that they had switched communications to email instead. [ 40 ] The uncle was asked about the child’s birth, and the suggestion that the baby had to be detoxed from cocaine. The uncle confirmed that when they had picked up the child in northern Ontario, they had to immediately take the child for medical attention. As to the hospital where the child was born, the uncle was asked if he knew that the father’s oldest child was dying in the same hospital at the same time.

In addition, the father’s own mother was also dying in the same hospital at the same time. [ 41 ] The uncle confirmed that on occasion, they were frustrated with Dilico. On August 17, 2018, the uncle and aunt told the father that they would not fight if the father wanted the child back. The uncle and aunt did tell the father that they would not agree if the mother tried to get the child back. On June 9, 2019, the uncle and aunt told the father that they were so glad he was the child’s father. On October 9, 2019, the father told the uncle and aunt that he wanted the child back in his care.

According to the uncle, they asked the father if he had a plan, and the father stated there was no plan. [ 42 ] The uncle stated that the father believed he could get the child back when he was ready. According to the uncle, communications stopped in the fall of 2021. In November 2021, the uncle and aunt had filed their private guardianship application. The uncle confirmed that they did not serve the father with notice of their application. The uncle stated that they had received advice from a lawyer that they did not need to serve the father.

Apparently, the uncle and aunt were told that they only had to serve Dilico. As a result, the uncle and aunt did not think it necessary to let the father know about their application.

Evidence of Family Friend – Ms. SM [ 43 ] The next witness was Ms. SM, a family friend of the aunt. Ms. SM testified that she has known the aunt for 15 years, and that they had met in nursing school. Ms. SM is Metis. Ms. SM stated that she and the aunt have maintained contact and that they talk almost daily. Ms. SM met the child when the uncle and aunt initially picked up the child in northern Ontario. Under cross-examination by counsel for the father, Ms. SM stated that she had last seen the child one year ago. Evidence of McMan Youth Services Worker - Ms. Catherine Strohschein [ 44 ] The next witness was Ms.

Strohschein, who works with McMan Youth Services. Ms. Strohschein worked as a kinship facilitator, and she is now a supervisor. In the fall of 2018, she was referred to work with the uncle and aunt. Ms. Strohschein described the uncle and aunt as a lovely, fun family, welcoming, but good at setting boundaries. Ms. Strohschein met with the child and worked with the uncle and aunt regarding healthy attachments. Ms. Strohschein also did some testing with the child, including a questionnaire entitled “Ages and Stages”. According to Ms. Strohschein, the child was in the monitoring range. Ms.

Strohschein stated that the child was taking a little longer to respond or to provide proper cues. [ 45 ] According to Ms. Strohschein, the child was not letting her caregivers know that she wanted something, and the child was not able to calm herself down. Ms. Strohschein referred to this as “serve and return”. Ms. Strohschein stated that the uncle and aunt were providing the child consistency and structure. The uncle and aunt were also receptive to problem solving and involving the whole family. Ms. Strohschein has seen all the uncle and aunt’s other children. According to Ms.

Strohschein, the aunt wanted to acquire a papoose for the child, as she had previously had one for her own children. [ 46 ] Ms. Strohschein testified that when the CCA was terminated, their program had to end, and they could no longer provide services to the family. In concluding her evidence, Ms. Strohschein stated that the child appeared very happy and called the child a “contented little peanut”. In addition, the child was very much part of the uncle and aunt’s family. Finally, Ms. Strohschein stated that she had received no contact from any other member of the child’s family.

Evidence of Chief Judy Desmoulin – Long-Lac #58 First Nation [ 47 ] The next witness was Ms. Desmoulin, Chief of the Long-Lac #58 First Nation Band. Chief Desmoulin confirmed that the mother had been a member of their Nation. Chief Desmoulin was elected Chief in 2020, and prior to that, she had been a member of the Band responsible for the child placement. Chief Desmoulin described some of the historical concerns, including high addiction rates from drugs and alcohol, suicide, and family dysfunctions.

The additional concerns were that children were being taken from their homes. [ 48 ] Chief Desmoulin explained a couple of situations in the past where she had personally needed to get involved with young mothers dealing with Dilico. Specifically, Chief Desmoulin had stepped in on a couple of occasions when Dilico had proposed removing children from their mothers. Chief Desmoulin stated that the community had a role to play and that there would be an emphasis on healing strategies.

The new slogan was called “Break the Cycle, Be the Change”. [ 49 ] Chief Desmoulin stated that the new goal was to keep children with their families. This meant that if the mother could not care for the child, then perhaps the father could parent the child, and if not, then maybe a grandparent could parent the child, et cetera. The emphasis was now on prevention rather than apprehension and that they were moving away from the existing Child Welfare system. As to the uncle and aunt’s family, Chief Desmoulin stated that they have been very involved in keeping the Band informed about the child.

Chief Desmoulin referred to communication with the uncle and aunt as very consistent and regular. Chief Desmoulin confirmed that the child is a registered member of the Long-Lac #58 First Nation. Although it had been mentioned in a previous affidavit, it would appear that the mother had registered the child before the mother passed away. [ 50 ] Under cross-examination from counsel for the father, Chief Desmoulin stated that it is preferrable to place a child within the community and with family.

Nevertheless, Chief Desmoulin testified that this placement is only possible if the family members are available and responding. If they are available, then the preference is given to the parents. Chief Desmoulin testified that she had met the father when the mother was still alive, and that she had visited their home in northern Ontario. Chief Desmoulin stated that she was unaware of any child protection concerns with the father. As to the child’s relatives in the northern Ontario area, Chief Desmoulin stated that a geographic location was not the only factor.

Chief Desmoulin also said that it would be ideal if siblings could grow up close together, but that this was not always possible. [ 51 ] Under cross-examination from counsel for Naotkamegwanning First Nation, Chief Desmoulin explained the introduction of the CCA and that they were not available for non-aboriginal families. Chief Desmoulin stated that there were no minimum time periods under the agreements and that sometimes the parents need some extra time to stabilize before they can properly parent. According to Chief Desmoulin, each situation is unique, and they always consider the best interests of the child.

Evidence of Pre-School Owner, Ms. R. [ 52 ] The next witness was Ms. R., the co-founder and owner of [Name Withheld] Pre-School. Ms. R. stated that the child has been a student there since September 2021, in their junior kindergarten program. According to Ms. R., the child initially had severe delays, including some motor-skill issues. Ms. R. stated that the child is now much improved, although the child still has mild to moderate delays and sometimes the child has trouble expressing her needs. Ms.

R. testified that the uncle and aunt have worked with the child at home and that the school has lots of interaction with the uncle and aunt. According to Ms. R., the child has come a long way. Ms. R. has

never had any contact with the father. [ 53 ] Under cross-examination from counsel for the father, Ms. R. confirmed that, initially, the child qualified for Program Unit Funding (PUF) due to the IPP that was created as a result of the child’s original assessment. Ms. R. further confirmed that last year the child no longer received PUF funding because she now scored high enough. Ms. R. stated that the school records are available upon request. Evidence of Band Council Member, Mr. P. [ 54 ] The next witness was Mr.

P., a council member on the Band for Naotkamegwanning First Nation, formerly Whitefish Bay First Nation. Prior to giving his evidence, Mr. P. introduced himself by his spiritual name. According to Mr. P., he had held the health portfolio on the Band council for eight years. Mr. P. stated that a child should be raised by a parent. In fact, Mr. P. stated that he shouldn’t even be here as a child belongs with their parent. Mr. P. further stated that he did not know the relationship of Mr. JJ, and that Mr. P. had no information about the biological mother. [ 55 ] Mr.

P. acknowledged that the child is currently registered with the Long Lac #58 First Nation, but Mr. P. seemed to believe that it would be possible to transfer the child’s registration to the Naotkamegwanning First Nation. Mr. P. testified that the situation felt like colonization, as the child can only be registered with one Band. Mr. P. confirmed that his Band had originated the “jingle dress”, and it was an honour for them, and they were proud of it. [ 56 ] Mr. P. described the lands within his community and how beautiful they are. In fact, Mr. P. stated that he wished everyone in the courtroom could see them.

Mr. P. also stated that the beauty of the land gave them a spiritual connection to the creator. Nevertheless, Mr. P. noted that the father does not live in the community, although he has regular contact through Facebook. Mr. P. stated that the Band could assist with any transition plan for the father, but when asked if it would include financial assistance, Mr. P. said he could not answer that. Finally, Mr. P. testified that this courtroom was not the place to resolve this issue. [ 57 ] Under cross-examination by counsel for the uncle and aunt, Mr.

P. confirmed that he has never met the child or the uncle and aunt. In addition, Mr. P. stated that he was not sure about the CCA, that he did not know how long the child had been living with the uncle and aunt, and that, specifically, he did not know anything about the uncle. Under cross-examination by counsel for the father, Mr. P. confirmed that the father does not live in the community. Evidence of Child Well Being Agency, Ms. Theresa Roseborough [ 58 ] The next witness was a director from the Child Well Being Agency for Naotkamegwanning First Nation. Ms.

Roseborough explained that the term “Child Well Being” had replaced the previous term of “Child Welfare” to recognize the more holistic and Indigenous approach to childcare. According to Ms. Roseborough, the new working principle and program was that families needed to be together. [ 59 ] Ms. Roseborough testified that the Band had started their own programs to seek alternatives to taking children away from their families. Ms.

Roseborough explained that Dilico was a much larger organization representing many First Nations in Ontario, and that specifically, Dilico had jurisdiction over the relevant northern Ontario area. Ms. Roseborough stated that now under the new Federal Act , An Act respecting First Nations, Inuit and Metis children, youth and families, SC 2019, c24 (the Federal Act ) , the Band has confirmed its intent to exercise legislative authority as an Indigenous governing body in relation to child and family services under the Federal Act . [ 60 ] According to Ms.

Roseborough, the Federal Act has provided a form of autonomy over their children from “coast to coast”. Ms. Roseborough referred to the Ontario practice of the CCA and that the agreement would incorporate, in a holistic way, the traditions and customs of each First Nation. The concept is that children would be cared for by people other than the parents until the parents were ready to look after their children. [ 61 ] Ms. Roseborough stated that there were no specific timelines involved and that the parties would work together. According to Ms.

Roseborough, the temporary caregivers seldom resist the return of the children to the parents. Ms. Roseborough testified that it was not the Indigenous way to have to fight over children. [ 62 ] Ms. Roseborough stated that there should be a connection to the spiritual land and that the goal of the First Nations was this connection. Ms. Roseborough expressed frustration at the way Dilico had dealt with things, and that because there were no child protection concerns with the father, the child should be reunited with the father. Ms. Roseborough described Naotkamegwanning as a very open and inviting community. Ms.

Roseborough stated that children are a gift from the Creator and that children belonged with their parents. [ 63 ] Under cross-examination from counsel for the uncle and aunt, Ms. Roseborough confirmed that each Nation has its own version of CCA. As to the time frame, Ms. Roseborough stated that it could be for as long as it was needed depending on the struggles that were happening. When asked why the Band had not reached out to the uncle and aunt, Ms. Roseborough testified it was because the matter was in court and lawyers were involved. As to the CCA, Ms.

Roseborough believed that the father had been pressured into signing the agreement and that the child had been taken from him. [ 64 ] Under cross-examination from counsel for Naotkamegwanning First Nation, Ms. Roseborough stated that even under a CCA, the parents always maintained their parental rights. According to Ms. Roseborough, if the child is returned to the father, there will be no trauma to the child. And if the child is returned to the father, there will be a celebration ceremony and it will be very moving.

Evidence of the Biological Father, Mr. AK [ 65 ] The next witness was Mr. AK, the biological father of the child. Mr. AK introduced himself by his spiritual name. Mr. AK confirmed that he is currently 55 years of age, and that he was born and raised in Ontario. Mr. AK was in a residential school between the ages of six and seven years old. Although his brother and sister were also at the residential school, Mr. AK stated he was not allowed to see them. Mr. AK described this as a very lonely and sad time, and that he was verbally abused on many occasions. [ 66 ] After the residential school, Mr.

AK testified that he lived with his father in Ontario. According to Mr. AK, his father was abusive to his mother and as a result, his mother left them. Mr. AK stated that he never heard the word “love” from either his mother or father. Mr. AK said he had wanted to live with his mother, but that he was afraid of his father. [ 67 ] Mr. AK testified that he initially left school in Grade 8, but he eventually went back and graduated high school. According to Mr. AK, he received no encouragement from either his mother or father and that they had never once asked him about his schooling. Mr.

AK stated that after his father passed away, he moved to a city in northern Ontario. Mr. AK attended College. He had asked the Band for funding, but they denied it. Mr. AK obtained a diploma in Business Management. [ 68 ] Mr. AK obtained work for a casino in Minnesota. Eventually, Mr. AK became manager of accounting at the casino. Although Mr. AK worked in Minnesota, he continued to live in Ontario and as a result, he had a significant commute each way. According to Mr. AK, when Dilico had asked if he could parent the child after she was apprehended from the mother, Mr.

AK said he had no resources and no help to care for the child. [ 69 ] Mr. AK then testified about his older daughter, CK, who he had with his first wife, Ms. VBT. According to Mr. AK, he had spent a lot of time in nature with CK doing outdoor activities, including fishing and camping. They also participated on traditional cultural activities, and they attended approximately three powwows a month. [ 70 ] Unfortunately, VBT committed suicide when CK was 14 years old, and Mr. AK raised her by himself. According to Mr. AK, CK took her mother’s death very hard, and they both grieved the loss differently.

As a result, this was a hard period for both of them, and they had heated arguments. Mr. AK testified that he was helpless to help CK because they could not agree on how to grieve the loss. [ 71 ] Mr. AK stated that CK did make it through school and things improved. CK became pregnant as a teenager with ‘C’, and according to Mr. AK, things were getting better spiritually. Mr. AK stated that he saw a difference in CK. Mr. AK testified that he and CK now have a close relationship and that they share their private thoughts with each other. CK graduated from University in Law and Advocacy. [ 72 ] Mr.

AK next talked about when his son, TK, was in hospital in May 2016. According to Mr. AK, they had transferred TK to a hospital in London, Ontario. Unfortunately, they were unable to help TK, so TK was transferred back to the hospital in northern Ontario. Mr. AK testified that CK was then going through a rough time because TK was in hospital. Mr. AK stated that CK now has two children of her own; ‘C’ is now 13 years of age, and her other child, who is also called ‘T’, is three years of age. According to Mr. AK, his grandchildren are like his own children. [ 73 ] Mr.

AK testified that he used to see his grandchildren every day and that they still stay over at his place most weekends. Mr. AK states that he takes ‘C’ fishing and has shown them how to cook fish. According to Mr. AK, CK and the grandchildren lived with him for two years because they needed a place to stay. Mr. AK testified that it was a sad day when they left and that he was heartbroken. [ 74 ] Mr. AK next spoke about when NK was born in northern Ontario. According to Mr. AK, it was a very dark and hard time for himself. Mr. AK knew that his son, TK, was dying in hospital, and that TK passed away in 2017.

At the same time, Mr. AK’s mother was also dying in the same hospital. As to the grandchildren, Mr. AK stated that they know who NK is and that they have seen the child on FaceTime. According to Mr. AK, the grandchildren have asked why NK is not living with him. Mr. AK testified that one should always be raising one’s own children. [ 75 ] Mr. AK currently has his son ‘Z’ living with him since 2019. ‘Z’ is 11 years old, and according to Mr. AK, he is easy to care for. Mr. AK stated that he and ‘Z’s mother agreed on the current parenting

schedule because the mother works for a mining company. Mr. AK testified that ‘Z’s mother is a cultural person and therefore no court proceedings were necessary. Mr. AK walks his son to the park, which they enjoy a lot. ‘Z’ also likes to go fishing. [ 76 ] Mr. AK stated that ‘Z’ has a good relationship with ‘C’ and gets along with other children. ‘Z’ has been at some of the visits with the NK. According to Mr. AK, ‘Z’ wants to be a big brother, and Mr. AK stated that ‘Z’ and the child are going to be friends. ‘Z’ is completing Grade 6 and is having some struggles with math. Mr.

AK was asked about whether the school has suggested a counselor for ‘Z’, and Mr. AK stated he would prefer to have an Elder involved. [ 77 ] As to an incident at a swimming pool during a visit with the child, the father denied the child got hurt. According to the father, the child only slipped, and he knew she was okay. Mr. AK also denied that he was on the phone when the child was in the swimming pool. It was around this time that Mr. AK stated he started to have concerns about the aunt. [ 78 ] Going back to the child’s apprehension, Mr. AK confirmed that Dilico had asked if he would take care of the child. Mr.

AK testified that he could not obtain any childcare for the child. According to Mr. AK, he told Dilico that he was unable to care for the child at the moment. Mr. AK testified that he couldn’t leave his job at that time, and he did not recall Dilico offering him any services. According to Mr. AK, Dilico told him they would place the child elsewhere until he was ready to care for the child. [ 79 ] As to the biological mother, Mr. AK stated that on a good day she could be a good parent. Unfortunately, though, the mother had a drug problem, and she was known to purchase drugs from people Mr. AK knew. Supposedly, Mr.

AK confronted the mother about her drug use, but she denied it. In addition, Mr. AK had heard rumours from some of his relatives that the mother was cheating on him. According to Mr. AK, that is why he insisted on a DNA test to confirm he was, in fact, the child’s father.

[ 80 ] Mr. AK testified that he was initially happy that the child would be placed with the uncle and aunt because they were family. As a result, according to Mr. AK, when Dilico had told him that the uncle and aunt had offered to care for the child, he did not object. Nevertheless, Mr. AK stated that he believed that the placement with the uncle and aunt was temporary, specifically until he could get a job in northern Ontario. Mr. AK testified that he obtained a job in northern Ontario in September 2019. Mr. AK also pointed out he took a pay cut to move to northern Ontario. [ 81 ] Mr.

AK testified that he found dealing with Dilico to be difficult. According to Mr. AK, he would receive different information from different people at Dilico. Specifically, when Mr. AK told Dilico that he wanted to have the child returned to his care, he was told to contact a “screener”. Mr. AK stated that he was told that the screener would need to check his residence. According to Mr. AK, Dilico were extremely slow, and he testified that he could not recall if they ever followed up with him. [ 82 ] Mr. AK stated that he continually told Dilico that he wanted his daughter back in his care. Mr.

AK told Dilico that he had voluntarily placed his child in their care and now he wanted his child returned. According to Mr. AK, he made it very clear what he wanted, and at this point, he had lost confidence in Dilico. It would appear that Dilico had told Mr. AK that he should get a lawyer, and he contacted the Legal Aid Society of Alberta. [ 83 ] As to the visit on January 4, 2022, at the Cross Iron Mills just north of Calgary, Mr. AK testified that it did not go well, starting with the pick-up in front of Toys R Us. According to Mr.

AK, he was hurt that it was supervised, and he felt uncomfortable during the visit. Mr. AK stated that it was not fun and that he could not be free and happy. Mr. AK testified that it all put his morale down and made him feel like a monster. Mr. AK confirmed that he did not want the aunt in the restaurant with them and told her she couldn’t come in. Nevertheless, the March visit went very well, and Mr. AK stated he believed it was the best visit he had with the child. The visit was unsupervised, and the uncle and aunt had lent Mr. AK one of their vehicles. [ 84 ] Mr.

AK testified that he is happy that the uncle and aunt took the child when they did, and that they have taken good care of the child. As to a possible transition, Mr. AK stated that he believes the child is still young, and that he would involve the uncle and aunt in any transition. Mr. AK believed that a few overnight visits would be necessary in Calgary and that the uncle and aunt would need to bring the child to Ontario. Mr. AK testified that he did not want the child to grow up anywhere other than Ontario. Mr. AK stated that he wants the child to understand First Nation life in the actual community. [ 85 ] Mr.

AK stated that he doesn’t know how the child came to be registered with the Long Lac #58 First Nation Band. Mr. AK believes that it is only right that the child be registered in his community. Mr. AK also stated that it would be more difficult for him to obtain services for the child if she wasn’t registered with his Band. Mr. AK confirmed that he currently has employment income of $82,000 per year and that it is non-taxable. [ 86 ] Mr. AK confirmed he has a two-bedroom apartment in a good community in Northern Ontario. According to Mr. AK, he lives close to a park, there is a bike path and a baseball pitch.

There is a school next door, and he has a family doctor and dentist. As for childcare, Mr. AK stated that he has a relative, CC, who would be able to pick up the child after school and care for the child until he returned from work. When asked about the uncle and aunt’s request to get the child counselling, Mr. AK confirmed that he would like to use an Elder instead. Mr. AK explained that this would be as a traditional way rather than through the school system. [ 87 ] Mr. AK stated that he would be arranging to have the child given her native name in the community. Mr.

AK stated that the child should have been given a name at birth and as a result, there is an urgency to get her the name. According to Mr. AK, until the child has a native name, she does not have an angel looking after her. As to Girl Guides and Sparks, Mr. AK stated that he would not be putting the child into any programs at this time. [ 88 ] Mr. AK testified that he believes he was a fairly good dad. According to Mr. AK, he had raised CK since she was a baby, and that he had learnt patience raising his son, ‘T’, who had cerebral palsy. Mr.

AK emphasised that he had tried to teach his children their culture and to enhance their spiritual learning. Interestingly, Mr. AK then thanked the uncle and aunt, stated that he had confidence in the uncle and aunt, and finally, that it would be hard for the child to leave their home. [ 89 ] Under cross-examination by counsel for the uncle and aunt, Mr. AK confirmed that he sees his 15-year-old son, ‘T’, approximately once a week. As to the CCA, Mr. AK disagreed that it was a long-term agreement. Mr. AK testified that Dilico had told him it was a temporary agreement until he could get the child back in his care.

Mr. AK stated that he did not understand what he was signing when he signed the CCA. [ 90 ] Mr. AK stated that there had been no transition planning yet. Mr. AK confirmed that over five years, he has had only nine visits with the child: • 2018 3 visits • 2019 1 visit • 2020 0 visits • 2021 1 visit • 2022 2 visits • 2023 2 visits [ 91 ] Mr. AK explained that it has been difficult to have more visits because of the distance and the fact that he lives in Ontario. Mr. AK stated that he was grateful to the uncle and aunt and that the child was thriving. Mr.

AK acknowledged that the uncle and aunt had provided the child stability but responded that he was also capable of providing stability.

Evidence of older daughter, Ms. CK [ 92 ] The last witness was CK, the older daughter of Mr. AK. CK confirmed that she was only 14 years of age when her mother unfortunately passed away. CK stated that during her childhood, her parents had showed her how to live a traditional life, including powwows and jingle dancing. CK was asked why she could not assist her father with childcare in March 2018. According to CK, she could not assist because at the time she was still grieving and then she got a full-time job. [ 93 ] That concluded the evidentiary portion of the trial.

Legislation [ 94 ] This is an application by the maternal uncle and aunt for an order appointing them as guardians of the child pursuant to s 23 of the Family Law Act . SA 2003, c F-4.5 ( FLA ) , which states: Guardianship order 23

(1) The court may, on application by a person who (

a) is an adult and has had the care and control of a child for a period of more than 6 months, or (

b) is a parent other than a guardian of a child, make an order appointing the person as a guardian of the child.

(2) The court may, on application by a child, make an order appointing a person as a guardian of the child if (

a) the child has no guardian, or (

b) none of the child’s guardians is able or willing to exercise the powers, responsibilities and entitlements of guardianship in respect of the child.

(3) The court on hearing an application for a guardianship order shall consider, and may require the applicant to provide the court with a report prepared by a qualified person respecting, whether it is in the best interests of the child that the applicant be appointed as a guardian of the child, including whether the proposed guardian (

a) is suitable as a guardian, and (

b) has the ability and is willing to exercise the powers, responsibilities and entitlements of guardianship in respect of the child. [ 95 ] As already mentioned, the father is opposed to the application by the uncle and aunt. The father is a guardian, and unfortunately, the mother is deceased. As a guardian, the father’s consent is required pursuant to s 24(1) of the FLA , which states: Consent to guardianship 24(1) A guardianship order shall not be made without the consent of (

a) each guardian of the child, (

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

c) the proposed guardian. [ 96 ] The father’s consent may be dispensed with pursuant to s 24(2) of the FLA , which states:

(2) Despite subsection (1), the court may make an order dispensing with the consent of one or more of the persons referred to in subsection (1)(

a) or (

b) if the court is satisfied that there are good and sufficient reasons for doing so. Legal Analysis [ 97 ] As a result, this case involves a contest between non-guardians, the aunt and uncle, and a guardian father. The appliable legal test is something of a quandary, resulting in a situation where it is initially difficult to decide exactly what to do. This dilemma has resulted in a plethora of case law that has been divergent. One line of case law holds that the legal test is one of fitness, such that the Court must find the father unfit to grant the uncle and aunt’s application for guardianship.

The alternative line of case law holds that the best interest of the child is the paramount consideration even in a competition between a guardian and a non-guardian. Issues 1. The Fitness Test

2. Best Interest Test 3. Additional Support for the Best Interest Test 4. Are the JJ’s in Loco Parentis? 5. Dispensing with Consent 6. Distinction Between Sec. 23(2) and Sec. 23(1) FLA 7. Customary Care Agreements 8.

An Act Respecting First Nations, Inuit and Metis Children, Youth and Families 9. Best Interest – Sec. 18(2) FLA 10.

Conclusion The Fitness Test [98] Advocates of the fitness test commonly cite our Court of Appeal in WD v GP, 1984 ABCA 233 (WD), where KeransJA stated: [14] While there is some confusion on the point in the authorities, I understand the rules to be that a stranger to a child — including agovernmental agent — cannot wrest custody from the lawful guardian of the child without first demonstrating that the lawful guardianhas either abandoned or neglected the child, or without offering other commanding reasons. But, in a contest between two recognizedguardians, the person who can offer superior parenting will prevail.

The first is the “fitness” rule; the second is the “best interests” rule. [99] Another case from our Court of Appeal is also cited in support of the fitness test. In Bowes v Gauvin, 2001 ABCA 206, the Court allowed an appeal from a trial decision which had applied a best interest analysis granting custody to thegrandparents over the natural mother.

The Court of Appeal had found that the grandparents were legal strangers to the child, and that thebest interest analysis did not apply in that case. [100] In JAC v AMS, 2010 ABPC 112, my colleague Justice Filice applied the fitness test to deny an application for guardianship by afriend of the mother. Justice Filice acknowledged that WD was decided under the provisions of the previous Domestic Relations Act RSA2000 CD – 14 (which was replaced by the FLA when it came into force in 2005). Specifically, s 53(1)(

b) of the Domestic Relations Actprovided that the Court find: that the parent or lawful guardian is not a fit and proper person to have guardianship… [101] Nevertheless, Justice Filice found that the FLA still had an element of fitness at para 27, where she stated: [27] The successor FLA does not explicitly refer to such a "fitness" test but, when read as a whole,

Part 2 of the Act implicitlyconfers special legal status to parents.

Section 20 sets out the definition of "guardians of child" by reference to mothers and fathers.

Section 17 mandates service of applications on all legal guardians of a child and section 24(1) provides that "A guardianship order shallnot be made without the consent of (

a) each guardian of the child" unless the court dispenses with such consent in accordance withsection 24(2) for "good and sufficient reasons." I cannot contemplate when such reasons might exist except in the case of a missing,deceased or unfit parent. [102] In Justice Filice’s case, the mother had been the primary caregiver until the child was approximately five years old before themother placed the child with a friend.

The child had only been with the friend for just over a year, when the friend brought an applicationfor guardianship, which was denied. [103] In DMT v SSM, 2017 ABPC 320, my colleague, Assistant Chief Justice Cornfield, endorsed the fitness test for the father’sapplication for guardianship.

The children had been apprehended from the mother in Alberta and the father lived in the United Kingdom.Justice Cornfield noted the principles of the CYFEA in keeping children with their families, as opposed to being placed in the care ofChildren’s Services. [104] In DG v JM, 2017 ABPC 78, my colleague Justice Lloyd also endorsed the fitness rule. Similar to Justice Cornfield’s case, thechildren were in the care of Children’s Services at the time of the application for guardianship. Notably, the application before the Courtwas for disclosure under s. 126.11 CYFEA.

Therefore, the comments relating to a fitness test for private guardianship were in obiter. Best Interest Test [105] Advocates for the best interest test often cite our Supreme Court of Canada in King v Low, (SCC). This case isreferred to as ending the presumptive right of custody in favor of the natural parent and biological ties. The case involved a competitionbetween a mother and the adoptive parents, and the case stands for the principles that the best interest of the child is paramount.

At para34 the Supreme Court stated: …the court in questions of contested custody, including contests between a natural parent and adoptive parents, must consider thewelfare of the child the predominant factor and give it effect in reaching its determination. ...

[106] In Young v Young, (SCC), another case from our Supreme Court, Justice L’Heureux Dube elaborated on thealleged rights of a parent in a custodial competition. She stated: The power of the custodial parent is not a "right" with independent value which is granted by courts for the benefit of the parent, but isdesigned to enable that parent to discharge his or her responsibilities and obligations to the child. It is, in fact, the child's right to a parentwho will look after his or her best interests.

Indeed, courts have recognized that there is no magic to the parental tie and will, when thebest interests of the child warrant, grant custody to a third party.

As Dubin J.A. (now C.J.O.) held in Re Moores and Feldstein, (ON CA), [1973] 3 O.R. 921, at p. 928: . . . it is the duty of the Court to view all the circumstances relevant to what is in the interest of the child, including a consideration as towhether the evidence disclosed that the child would benefit from the tie of a child to its mother. [107] And more recently, in BJT v JD, 2022 SCC 24 (BJT), our Supreme Court reminded all courts deciding custody matters that theparental tie is but one factor to consider and that the best interest of the child is always paramount.

The case also acknowledges thatmodern families today may involve a range of caregivers of varying degrees of relationship to a child. Courts should be cautious whenconsidering the degree of a biological tie to a child as a deciding factor for determining custody, and instead focus on the bond andattachment, as it relates to the child and their best interest. At para 33, the Court stated: Although the apprehension of W.D. by the Director meant that the proceedings were governed by the Child Protection Act, what wasplaced before the court was a “disguised” custody battle (para. 11).

The hearing judge recognized that the sole issue was whether W.D.’sbest interests favoured permanent custody with his father or his grandmother. The hearing judge awarded custody to the grandmother. [108] In BJT, the maternal grandmother had been deeply involved in the child’s life until the child was four years old when themother stopped contact between the child and the grandmother. The child was apprehended from the mother’s care and placed in thecare of the grandmother a few months later. The father was initially unaware of the child’s existence. At trial, the grandmother wasgranted custody of the child.

The PEI Court of Appeal overturned the decision, holding that the natural parent factor was decisive. TheSupreme Court upheld the trial decision and stated at paras 53 and 55 the following: [53] The best interests of the child is the guiding principle in most custody matters, as it is under s. 2(2) of the Child Protection Act.To assess the best interests of a child, courts apply a multi-factorial legal standard, although different statutes may articulate theindividual factors in slightly different ways.

It is a highly contextual and fact driven exercise that involves a high level of judicialdiscretion: a case-by-case consideration of the unique circumstances of each child is the hallmark of the process. Those factors include“not only physical and economic well-being, but also emotional, psychological, intellectual and moral well-being” (Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27, at para. 120, per L’Heureux-Dubé J., dissenting, citing J. D. Payne, Payne on Divorce (3rded. 1993), at p. 279). ... [55] In this legislation, as in others, no priority is given to one factor over the other.

The question of which factors are relevant, andwhat weight should be apportioned to them, is a matter of judicial discretion with regard to the evidence before the court. The evidencethat lays the foundation for the factors must first itself undergo a discretionary determination by the judge, regarding its admissibility,credibility, reliability, and weight.

Indeed, an assessment of a child’s best interests can be conceptualized as requiring layered exercisesof judicial discretion, in which the judge at first instance is “in the best position to assess evidence pertaining to the best interests of thechild” (P. (D.) v. S. (C.), (SCC), [1993] 4 S.C.R. 141, at p. 192, per Cory and Iacobucci JJ.). [109] The Supreme Court in BJT is once again reiterating King v Low in that the best interests are paramount, and that no one factor isgiven priority.

The Court is noting the transition away from focusing on the natural parent and instead focusing on the emotional andpsychological bond. At paras 87 to 90 the Supreme Court stated: [87] I agree with the grandmother that the majority of the Court of Appeal overstated the importance of the father’s biological tie toW.D. While the majority found there was no presumption in favour of biology, it concluded biological parenthood was “very important”and held courts should consider it a decisive tie breaker when a parent and non-parent were otherwise equal (at para. 112).

As I willexplain, in this custody dispute, a parent’s mere biological tie is simply one factor among many that may be relevant in some cases to achild’s best interests, which is and must be the paramount consideration. Judges are not obliged to treat biology as a tie breaker when twoprospective custodial parents are otherwise equal.

(1) The Historical Approach to Biology in the Assessment of a Child’s Best Interests [88] Courts have gradually moved away from an emphasis on parental rights and biological ties in settling custody matters, whetherarising from a private dispute, an adoption, or the state’s apprehension of children in need of protection. [89] The transition away from parental rights and biological ties occurred over several centuries and involved shifts brought about bylegislative intervention as well as judicial innovation. The step that is most important for this case is King v.

Low, (SCC), [1985] 1 S.C.R. 87, a decision of this Court, that ended the presumptive right of custody in favour of natural parents over adoptiveparents that this Court established in the 1950s (see Re Baby Duffell: Martin v. Duffell, (SCC), [1950] S.C.R. 737, at p.744; Hepton v. Maat, (SCC), [1957] S.C.R. 606, at pp. 607-8 and 615; and Re Agar; McNeilly v. Agar,(SCC), [1958] S.C.R. 52, at p. 53). In King v. Low, a mother gave her newborn son to a couple for adoption. Before the adoption processwas over, the mother requested the child’s return, which the couple refused, and a custody dispute ensued.

At trial, custody was awardedto the adoptive parents. The judge concluded the benefits of stability and the child’s bond with his adoptive parents outweighed thebenefit of his biological mother’s care. [90] Writing for the Court, McIntyre J. upheld the decisions of the courts below. In doing so, he recognized several principles that arerelevant in this appeal. The “paramount consideration”, he noted, in custody disputes involving a “natural” parent and another parentalfigure is the welfare of the child (p. 93). The preference for natural parents developed in the adoption context, where only one party was

a natural parent. Further, McIntyre J. endorsed the trial judge’s conclusion that a natural parent is preferred not because of biology per se, but due to the emotional or psychological bond that is presumed to develop when a parent begins to care for a newborn. The question of which prospective custodial parents developed this bond is a consideration that should prevail over an “empty formula”, like a biological tie (p. 104).

The legal significance of biological ties in the best interests assessment, moreover, has diminished with “changing social conditions and attitudes” (p. 97). [ 110 ] The emotional and psychological bond should be assessed through the perspective of the child, and the Court should weigh the emotional and psychological bond that a child actually has with a natural parent. The Supreme Court in BJT probed the significance of the parental tie as it related to the best interests of the child.

At paras 104 and 105 the Court stated: [104] There is “no magic to the parental tie” ( Young , at p. 38, per L’Heureux-Dubé J., dissenting in the result). The very need for child protection legislation underscores that a biological connection is no guarantee against harm to a child. On the other hand, a child can be equally attached to persons who are not their biological parents and those persons can be equally capable of meeting the child’s needs, as this case and King v. Low illustrate. Thus, King v.

Low does not give significant weight to a biological tie in itself, but treats it as a presumed proxy for a child’s strongest bond. [105] Since biological ties are a presumed proxy for a bond, any advantages that favour the biological parent will usually be captured and subsumed within the broader inquiry into a child’s best interests.

In particular, if the biological parent is closer to the child, and better able to meet the child’s needs, this will be reflected in a wider range of relevant factors, like the child’s relationship to the parent, the views and preferences of the child, and the ability to meet the child’s needs, including the child’s safety, security, and well-being (Wilton, Joseph and Train, at § 6:1).

To the extent a parent relies on biology for considerations related to the child’s culture, race or heritage, it may be addressed within those factors. [ 111 ] In BJT , the Supreme Court emphasised the need for all courts in contested custody cases to consider the benefits to the child and to not be focused exclusively on the biological ties. Although a biological tie will be important, it is not the sole factor. At para 108 the Court stated: [108] Finally, as in this case, courts should be cautious in preferring one biological tie over another absent evidence that one is more beneficial than another.

This Court has moved away from stereotyped and formulaic solutions like the “tender years” doctrine (Young, at p. 43; A.C., at para. 92 ). Unsupported generalizations about, as in this case, the caregiving capacity of a biological father versus a grandmother, or vice versa, are similarly inappropriate. Comparing the closeness or degree of biological connection is a tricky, reductionist and unreliable predictor of who may best care for a child.

It fails to take into account how often other family members assume care for children whose biological parents cannot act as caregivers as a result of addictions, mental health issues, criminal behavior, or other challenges. It also overlooks that a custody dispute that is superficially between two biological parents may frequently draw in several family members, as a parent’s extended family may also assist in care and feel invested in seeing a custody claim succeed. Here, not only did the grandmother step up to assist her daughter to care for W.D., but the father’s parents also help him with W.D.

Additional Support for the Best Interest Test [ 112 ] In the case of JD v CP, 2009 ABQB 640 , Justice McMahon recognized the divergent case law but ultimately concluded that the best interest test prevailed. The case involved a contest between the mother and the paternal grandparents. Although Justice McMahon dismissed the grandparents’ application, he did so by concluding that it was in the child’s best interest to be with the mother. Justice McMahon noted that the new legislation being the FLA and the fact that the language relating to fitness had been removed.

At paras 71 and 74 he stated: [71] The Family Law Act , which replaced the Domestic Relations Act , contains no reference to fitness in regard to guardianship. ... [74] It is, in my respectful view, no longer appropriate to refer to “fitness” in these circumstances. [ 113 ] In the case of DS v PA, 2018 ABPC 157 , Justice Yake also endorsed the best interest test. This was a contest between a father, the paternal grandparents, and the maternal grandparents. The paternal grandparents had been interim guardians but that had been terminated. The maternal grandparents were interim guardians.

Justice Yake stated at paras 93 and 95: [93] The Court must determine what parenting arrangement is in the best interest of K.A. As enunciated in section 18(2)(a), the task of the Court is to ensure the greatest possible protection of his physical, psychological and emotional safety. ... [95] However, because the Order made by Judge Glass was an interim order and not a final order, a change in the needs or circumstances of circumstances of K.A. is not required: Wandler v Crandall , 2017 ABCA 391 at para 30 . This Court shall consider only the best interest of K.A. as required by

section 18. [ 114 ] In the case of SK v DG, 2022 ABQB 425 ( SK ), Justice Loparco addressed three competing applications between a maternal grandmother and a paternal grandfather and a paternal grandmother. In this case, the first two parties were co-guardians, and the paternal grandmother was not. Justice Loparco applied the best interest test and did not endorse the fitness test. Justice Loparco found it in the best interest of the child to appoint all three as guardians. Justice Loparco stated at paras 229, 230 and 231: [229]

Section 18 requires the court to ensure the greatest possible protection of the child’s physical, psychological and emotional safety, and to consider all the child’s needs and circumstances, as enumerated within s. 18(2)(b). A contextually sensitive and

individualized inquiry is required when determining what is in the child’s best interests: Gordon v Goertz, (SCC),[1996] 2 SCR 27 at para 44 and Cavanaugh v Balkaron, 2008 ABCA 423at para 12. The best interests test is the only test and parentalpreferences, and rights play no role in the determination of a child’s best interests: Young v Young, [1993] SCR No 112, para 202. [230] In determining what is in the child’s best interests, the court must compare and balance the advantages and disadvantages ofeach proposed parenting scenario: DAM v CJB, 2017 NSCA 91, as cited in SS v JG, 2021 NSSC 228[SS v JG].

Effectivecommunication and cooperation between parents are essential components of shared parenting. It is usually not appropriate whenparenting relationships are rife with mistrust, disrespect, poor communication, and where there is little hope that the situation willchange: SS v JG at para 33. [231] On hearing an application for a guardianship order, the court is required to consider whether it is in the best interests of thechild that the applicant be appointed as a guardian of the child, including whether the proposed guardian is (

a) suitable as a guardian, and(

b) has the ability and is willing to exercise the powers, responsibilities and entitlements of guardianship in respect of the child: s.23(3) of the FLA. Are the Uncle and Aunt in Loco Parentis? [115] In B(

B) v D(L), 2002 ABQB 429, Justice Moen comments on what constitutes an in loco parentis relationship. Although thecase was under the Divorce Act, the definition of in loco parentis is informative as it identifies it as a party who is intimately connectedto the child. At para19 Justice Moen states: [19] In A.D.B. v. B.A.S., Nash, J. cites Justice Johnstone in C.(M.J.) v. G.(H.) [1998] A.J.

No. 239 (Q.B.) for the principle that: “...the test for determining guardianship and custody applications by persons who are intimately connected to the child ...is in the bestinterests of the child” I emphasize the language she used here, which is, “who are intimately connected to the child”. By this she wasdescribing in loco parentis. In general, if a person can establish a relationship that is in loco parentis, then the test for guardianship willbe best interests. I do not have to decide this here.

I only need determine based on affidavit evidence whether the Applicant stood in locoparentis to give him standing to apply for guardianship. Whether he gets guardianship is for the trial judge to determine. [116] In JRM v TDM, 2006 ABPC 285 (JRM), my former colleague Justice Flatters had a case involving a competition between thepaternal grandmother and father versus the mother. Interestingly, neither the father nor the paternal grandmother was related to the childby blood. The father believed he was the biological father until the mother informed him 18 months later that he was not.

Justice Flattersfound that the father was in loco parentis and granted both the father and the paternal grandmother standing. The Court used the terms“psychological father and psychological grandmother”. As to the appropriate test, Justice Flatters stated at para 51: [51] The next matter to be determined is the test to be applied in determining L.’s future and whether it is one of T.M.’s fitness or L.’sbest interests. Counsel for T.M. submits that fitness is the applicable test and a legal stranger cannot wrest a child from a mother who isfit. Counsel for J.M. submits that the applicable test is best interests.

In the unique circumstances of this case, J.M. and L.R. are not legalstrangers to L. They are in an integral part of his life as outlined. J.M. is L.’s psychological father. L.R. is his psychological grandmother.They form L.’s nuclear family as described by Mr. Choate. They have each attained the status to apply under FLA section 23(1)(

a) forguardianship and before that under section 52(1) of the CWA. Having attained standing, the test to apply is that of best interests. (SeeLangdon v. York, supra) In S.K.A.M. v. C.A. et al (1995), 1995 ABCA 62 , 165 A.R. 94 (Alta. C.A.) at para. 7, Russell J.A. saidthat “... the application of the best interests of the child test demands a broad view of past, present and future circumstances and needs ofthe child”. [117] In JRM, the mother was opposed to both the father’s application and the grandmother’s application.

Justice Flatters consideredthe bond and attachment the child had for the father and the grandmother and dispensed with the mother’s consent for guardianshipunder s 24(2) of the FLA. Justice Flatters granted guardianship to both applicants with the primary residence and decision making to thefather. At para 57, Justice Flatters stated: [57] J.M. has been closely involved with L. since birth, always assumed the position of his father, and from J.M.’s perspective he isL.’s father and from L.’s perspective J.M. is his father. As Mr. Choate noted, from L.’s perspective, a biological attachment is notrelevant.

L. has a bond and attachment to J.M. J.M. also provides love, guidance, care, emotional support and financial support for L. Hehelps to provide a home for L. There can be no doubt that the role J.M. plays in L.’s life is that of a true father. His role in L.’s life issignificant. L. should continue to have J.M.’s major contribution in his life. For J.M. to have guardianship would be a benefit to L. J.M. issuitable, and has the willingness and ability to exercise the powers, responsibilities and entitlements of guardianship, and I am satisfied itis in L.’s best interests that J.M. be appointed as L.’s guardian.

I hereby make that appointment and dispense with the consent of T.M. tofacilitate the appointment (as provided in FLA section 24(2)). Dispensing with Consent [118] S 24 of the FLA requires the father’s consent to the application by the uncle and aunt. The Court may dispense with the father’sconsent if the Court is satisfied that there are “good and sufficient reasons” to do so. [119] In the case of JZ v JJ, 2010 ABPC 95, my colleague Justice Ho dispensed with the guardians’ consent. This was a contestbetween the grandparents and the parents. The parents had kicked their 16-year-old child out of their house.

The child lived briefly on thestreets before moving in with the grandparents. Although Justice Ho did not go as far as to find the parents unfit, he did conclude that theparents had not taken reasonable steps to ensure the child’s needs when they kicked him out of their house. Justice Ho stated at para 26: [26] The Grandparents are suitable, able and willing guardians for D.G.J. and it is in D.G.J.’s best interests for them to continue as hisguardians. I am waiving the requirement for D.G.J. to have been in the care of his Grandparents for a period of more than six months as

I believe there are good and sufficient reasons to do so. I am also dispensing with the consent of his Parents. [ 120 ] In Justice Loparco’s case in SK , the guardian’s consent was also dispensed with. The Court found that the best interests of the child was to be used when determining what constituted “good and sufficient reasons”. At para 235 Justice Loparco stated: [235] When considering what may constitute good and sufficient reasons, the court in DPN v Toews, 2013 ABQB 445 [ DPN ] indicated that the starting point is a consideration of the purpose of the legislation or a part of the legislation: DPN at para 99 . Given the legislative direction at

section 18 requiring the court to only consider the bests interests of the child, the proper inquiry is whether it is in L’s best interests to waive the consent requirements of ss. 24(1) and 25(1), and the six-month care and control requirement of s. 23(1) (a), [ 121 ] Notably, in SK , none of the guardians were found by Justice Loparco to be unfit. The Court found good and sufficient reasons based on the connection each applicant had with the child, and as a result, dispensed with the consent of the guardians. At paras 237 and 238 Justice Loparco stated: [237] In this case, the Applicants are L’s grandparents.

Each of them has a substantial connection to L. They are not a stranger to him. All of them have provided love and care for L at different times. In addition, L’s grandparents provide L with ties to his deceased parents, and the shared interests and traditions of the family unit. [238] Based on all the evidence before me, and considering L’s best interests, I am satisfied that there are good and sufficient reasons to dispense with consent to enable a consideration of the parties’ guardianship applications, and to waive the six-month care and control requirement with respect to S’s application.

I further find that it is necessary and desirable to waive the consent requirement with respect to termination of the guardianship of a guardian. [ 122 ] In MD(Re), 2020 ABPC 153 , my colleague Justice Shaw considered the importance of the emotional bond to a caregiver as compared to a biological tie in the overall analysis of best interests. Although the case was under the CYFEA , it was in essence another “disguised custody battle”. The contest was between the foster mother and the paternal great aunt and uncle.

At para 17 Justice Shaw stated: [17] The biological or family tie, without any other relationship or care history, does not have preference over a bona fide emotional connection or kinship. It is, as Ms. Wright, counsel for the child’s caregiver, and Ms. Hnatiuk, counsel for the child, remind us, a best interests test, and I find in this case that this child's best interests is to remain where she is. She is in her home where she is emotionally attached to her mother and family close by. As wonderful as the competing interests are, the Court is charged with ensuring that this child is not harmed.

That is as anticipated in

section 56 of the Act . There is no reason, certainly no compelling reason, to change the residency of MD so possibly the paternal uncle could have her for a period of time to see how it goes. MD is not an experiment. This is to refer back to the Supreme Court reference I made earlier, she is a child to whom we owe serious and special considerations. Distinction Between S 23(2) and S 23(1) FLA [ 123 ] Arguably there is a difference between applications under s 23(2) and s 23(1) of the FLA .

S 23(2) provides that a Court can, on application by a child, make a guardianship order where the child has no guardian or where none of the child’s guardians are able or willing to exercise the powers, responsibilities, and entitlements of guardianship. Obviously, there is an element of fitness or willingness contained in the language in this particular section. [ 124 ] S 23(1), the application before me which considers an application by a person, has no such language requiring that a guardian be found unfit in order to grant the guardianship order.

Further, in s 24(2), requiring the guardian’s consent, there is arguably an extra safeguard such that a party cannot

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