Alberta (Director, Child, Youth v. Family Enhancement), 2022 ABKB 681

Court of King’s Bench of Alberta Citation: Alberta (Director, Child, Youth and Family Enhancement) v HF, 2022 ABKB 681 Date: 20221014 Docket: FL03 66482 Registry: Edmonton Between: Alberta (Director, Child, Youth and Family Enhancement) Appellant - and - HF and JL Respondents 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 Mr. Justice S.N. Mandziuk _______________________________________________________ Introduction [ 1 ] Alberta (Director, Child, Youth and Family Enhancement) (“ Director ”) appeals the decision of a Provincial Court Judge (“ PCJ ”) granted on December 8, 2021 (“ PCJ Decision ”), which directed the return of a 5-year-old child (“ EF ”) to the care of her birth parents (“ HF ” and “ JL ”) [1] under a Supervision Order.

At the same time, the PCJ dismissed the Director’s application for a Permanent Guardianship Order (“ PGO ”). [ 2 ] The PCJ rendered his decision after a trial that ran from September 16 to 27, 2021. [ 3 ] On December 23, 2021, this Court stayed enforcement of the PCJ Decision. That stay remains in effect; thus, EF has not been returned to HF’s and JL’s care. [ 4 ] The Director also applies to have new evidence considered in this appeal.

Decision [ 5 ] For the reasons that follow I allow some of the new evidence to be introduced on this appeal; I allow the Director’s appeal; I direct a new trial; and I confirm and continue the existing stay of the PCJ Decision. Facts Background [ 6 ] EF was born in October 2016. HF is her father and JL is her mother. She is 6 years old at present. [ 7 ] When she was about one month old, EF was referred to the University of Alberta cardiology department by her physician, Dr. Carrie Slatter, because EF’s weight gain was lagging behind benchmarks, and she had a heart murmur.

No cardiac diagnosis was made, and EF was referred back to Dr. Slatter. [ 8 ] When she was about 7 weeks old and in her Parents’ care, EF was hospitalized for about a week (November 30, 2016 to December 5, 2016) for “failure to thrive” due to deficient caloric intake. EF’s condition improved during this period of hospitalization. [ 9 ] Upon discharge, the Parents were given instructions about EF’s care and actions required to take care of her and improve her health. Dr. Slatter instructed the Parents to take EF to her family physician, Dr.

Douglas Woudstra, on a weekly basis to monitor EF’s growth. [ 10 ] The Parents stopped taking EF to see Dr. Woudstra in August 2017. [ 11 ] Following reports of concern, Children’s Services directed that EF see a pediatrician. The Parents promptly responded by choosing to see Dr. Heather Leonard and having their first appointment on May 23, 2018. [ 12 ] EF was, according to Dr. Leonard’s chart notes, below the third percentile for weight and height for her age.

HF and JL insisted that her food intake was sufficient, EF’s relatively small size related to her heritage, and that there were no pressing health issues. [ 13 ] In November 2018, Dr. Leonard observed that EF’s weight had not significantly improved during the preceding six-month period. The Parents agreed to a safety plan whereby HF would be more involved in EF’s feeding. In March 2019, Dr. Leonard advised the Parents that if EF did not gain weight in six-weeks’ time, she would contact Children’s Services.

In June 2019, the Director received a report about EF’s well-being and poor growth. [ 14 ] On September 20, 2019, Dr. Leonard and Children’s Services decided to request that EF return to the hospital. On September 27, 2019, they communicated that request to the Parents. After some discussion, the Parents agreed. EF was hospitalized on October 1, 2019, at the Stollery Children’s Hospital in Edmonton to receive treatment for “failure to thrive.” At trial, Dr. Leonard testified that EF’s health issues arose from low caloric intake. [ 15 ] While hospitalized this second time, EF gained and maintained weight.

A nasal gastric feeding tube was utilized for three months commencing October 18, 2019, during which time EF gained two kilograms. [ 16 ] Dr. Jennifer Walton, a pediatrician, recommended psychiatric counselling. As a result, Dr. Carole Hapchyn, a psychiatrist with a specialty in infant and early childhood mental health, became involved. [ 17 ] On October 24, 2019, Judge Zalmanowitz of our Provincial Court granted an apprehension order in favour of the Director.

The following day, the Director apprehended EF while she was being treated at the Stollery Children’s Hospital for “failure to thrive” due to caloric deficiency. [ 18 ] EF was discharged on October 30, 2019, into the care of her paternal grandparents, who live about a one-hour drive west of

Edmonton. [ 19 ] From EF’s apprehension in October 2019 until March 2020, the Parents had irregular phone and in person contact with EF. [ 20 ] In November 2020, Dr. Hapchyn advised the Parents that EF needed regular in-person visits with them. Dr. Hapchyn also recommended that the Parents complete parenting assessments and that JL complete an assessment with an eating disorder specialist. [ 21 ] The Parents did not follow these recommendations. [ 22 ] The Parents did not attend a scheduled review and debrief of Dr. Hapchyn’s report on EF on December 15, 2020.

The Parents communicated with EF irregularly. [ 23 ] After December 26, 2020, the Parents did not request a visit with EF until August 12, 2021. Pre-Trial Court Proceedings [ 24 ] The Director applied for an Initial Custody Order (“ ICO ”) and a Temporary Guardianship Order (“ TGO ”) on December 12, 2019. [ 25 ] The Parents did not appear at the custody application on December 19, 2019. An ICO was granted in favour of the Director. [ 26 ] The Parents opposed the TGO application, and a trial was scheduled in November 2020. [ 27 ] Prior to the November trial date, on September 21, 2020, Judge G.B.N.

Ho of our Provincial Court directed the Parents to participate in a Parenting and Psychological Assessment (“ PPA ”). [ 28 ] On October 9, 2020, the Provincial Court further directed that psychologist Hilda Huj would conduct JL’s PPA. [ 29 ] The Parents did not participate in the PPA process. [ 30 ] The November 2020 trial did not proceed. [ 31 ] On November 23, 2020, the TGO application was amended by the Director to an application for a PGO. [ 32 ] In August 2021, the Parents expressed willingness to participate in the PPA, but no suitable appointment could be arranged prior to the trial.

The Trial [ 33 ] The trial proceeded over eight days in September 2021. [ 34 ] The Director called seven witnesses, three of whom were qualified as experts: Dr. Leonard, Dr. Walton, and Dr. Hapchyn. [ 35 ] The Parents both testified but did not call any expert witnesses. [ 36 ] After closing arguments, the PCJ solicited suggestions from the parties for Supervision Order terms and a TGO.

An interim access order was granted providing the Parents with unsupervised parenting time with EF until the substantive PCJ Decision was rendered. [ 37 ] The interim access order provided for visits between EF and the Parents from 1 p.m. to 5 p.m. on Wednesdays and Fridays and 9 a.m. to 5 p.m. on Sundays (with allowances for reasonable adjustments necessitated by sickness) and an overnight visit that would make-up for a missed birthday.

The order required the Parents to provide a list of five support people and a home environment assessment of the Parents’ apartment condominium property, to ensure its suitability for EF. That home environment assessment was to be “conducted at the earliest possible date” (Trial Transcript 8, p 78, l 36). Until that assessment was completed, visits with the Parents were to be outside of the Parents’ home.

The PCJ Decision [ 38 ] The PCJ Decision was rendered with lengthy oral reasons on December 8, 2021. [ 39 ] The PCJ dismissed the Director’s application for a PGO and ordered EF to be immediately returned to the custody of the Parents under a six-month Supervision Order. [ 40 ] The Supervision Order required that the Parents, with the Director’s assistance, choose a pediatrician and a psychiatrist for EF within six months. The Director was ordered to help the Parents to obtain mental health supports, including allowing for the completion of the PPA.

The Supervision Order also included a term for the paternal grandparents to spend time with EF. The completion of a home environment assessment of the Parents’ residence was also ordered. The Decision is Stayed [ 41 ] Counsel for the Director immediately applied for a stay of the PCJ Decision. That application was dismissed by the PCJ.

[ 42 ] Kraus J of this Court granted an interim interim stay of enforcement on December 8, 2021. Subsequently, Lema J ordered a further stay pending the outcome of this appeal and granted the Parents interim parenting time with EF every Saturday from 9 a.m. to 7 p.m. and as arranged. He directed that the home environment assessment be completed on an expedited basis. [ 43 ] EF remains in the care of her paternal grandparents.

Grounds of Appeal & Positions of the Parties [ 44 ] The Director takes the position that the PCJ: a) “erred by disregarding, significantly misapprehending, and failing to give appropriate weight to the documentary and viva voce evidence” at trial concerning EF’s health condition, the risk of harm, the Parents’ failure to spend time with EF, the history of family violence, and the Parents’ “lack of engagement” with various supports that were offered to them;

b) misapplied and misinterpreted the relevant provisions of the Child, Youth and Family Enhancement Act , RSA 2000, c C-12 (“ CYFEA ”) in the context of EF’s best interests, safety, security and development; and

c) was “patently wrong.” The Director states in its brief that “[t]he trial judge’s errors of fact and law are fatal . . . it is clear and obvious that had the trial judge properly regarded the evidence before him, he could not have come to the conclusion he did.” [ 45 ] EF has her own counsel, who takes the position that the Parents were not credible and that the PCJ made a “perplexing” decision in light of the disparity between his fact findings and the evidence at trial. [ 46 ] The Parents submit that the matter is so highly fact specific that appellate intervention is inappropriate. They further submit that the PCJ made no reviewable errors of fact, law, or mixed fact and law:

a) the PCJ did at no point “reject the diagnosis, reject the cause, or make a finding in any manner contrary to the evidence of the experts”; and

b) the submissions by the Director point “to no extricable error of mixed fact and law falling closer to the level of law” and that the purported errors are more of fact than law, which attract “a deferential standard.” [ 47 ] Absent reviewable errors, the Director requests that the Supervision Order be upheld. Standard of Review [ 48 ] The standard of review applicable to appeals from Provincial Court to the Court of King’s Bench is correctness in relation to questions of law, and palpable and overriding error with respect to fact finding.

Questions of mixed fact and law attract the standard of review of palpable and overriding error “unless there is an extricable question of law in which case the standard is correctness”: Baran v Can To Can Inc , 2021 ABQB 827 (at para 5 ) referring to Housen v Nikolaisen , 2002 SCC 33 at para 36 .

In Housen v Nikolaisen (at para 28 ) the Court added that “ matters of mixed law and fact fall along a spectrum of particularity.” [ 49 ] In Hydro-Québec v Matta , 2020 SCC 37 (at para 33 ), the Supreme Court of Canada characterized the degree of error as follows: An error is palpable if it is plainly seen and if all the evidence need not be reconsidered in order to identify it, and is overriding if it has affected the result: H.L. v. Canada (Attorney General) , 2005 SCC 25 , [2005] 1 S.C.R. 401, at paras. 55-56 and 69-70 ; Salomon v. Matte-Thompson , 2019 SCC 14 , [2019] 1 S.C.R. 729, at para. 33 .

As Morissette J.A. so eloquently put it in J.G. v. Nadeau , 2016 QCCA 167 , at para. 77 , [ translation] “ a palpable and overriding error is in the nature not of a needle in a haystack, but of a beam in the eye. And it is impossible to confuse these last two notions”: quoted in Benhaim , at para. 39 .

The beam in the eye metaphor not only illustrates the obviousness of a reviewable error, but also connotes a misreading of the case whose impact on the decision is plain to see. [ 50 ] In CAS v Alberta (Director of Child Welfare) , 2003 ABCA 233 , Russell JA stated (at para 11): The issue involves a question of law for which the standard of review is correctness.

An appellate justice should not disturb a trial judge’s decision unless the trial judge clearly acted on a wrong principle, applied the incorrect law, disregarded significant material evidence, or failed to consider relevant factors, or unless the final disposition was patently wrong. [ 51 ] This appeal is not a hearing de novo : JU v Alberta (Regional Director of Child Welfare) , 2001 ABCA 125 at para 6 . [ 52 ] Deference is a key consideration in the Court of King’s Bench’s determination of Provincial Court appeals, particularly when they involve parenting orders.

Our Court of Appeal in Letourneau v Letourneau , 2014 ABCA 156 noted (at para 6 ) the “highly fact- specific and discretionary” nature of parenting orders and directed that “[t]he standard of review of a parenting order allows for appellate intervention only where the judge below erred in law or made a material error in his or her appreciation of the facts” (citing Van de Perre v Edwards , 2001 SCC 60 at para 13 ). [ 53 ] This question of deference was canvassed by Watson J (as he then was) in Alberta ( Child, Youth and Family Enhancement Act , Director) v AS , 2006 ABQB 354 (at para 84 ): The standard of review of decisions as to child custody, notably as to what is in the best interests of a child, appears to be quite

deferential having regard to the broad language provided for as to this Court’s appellate jurisdiction. I mean – by that – that the broadlanguage does not seem to be quite so deferential but the case law seems to be. [54] However, s 117(2) of the CYFEA gives considerable remedial scope to this Court in an appeal: On hearing an appeal made pursuant to

section 116, the Court of Queen’s Bench may (

a) confirm the order or refusal, (

b) revoke or vary the order made, or (

c) make any order the Court could have made in the hearing before it. [55] I am also directed by Bastarache J in Van de Perre v Edwards (at para 15): If there is an indication that the trial judge did not consider relevant factors or evidence, this might indicate that he did not properlyweigh all of the factors. In such a case, an appellate court may review the evidence proffered at trial to determine if the trial judgeignored or misdirected himself with respect to relevant evidence.

This being said, I repeat that omissions in the reasons will notnecessarily mean that the appellate court has jurisdiction to review the evidence heard at trial. As stated in Van Mol (Guardian ad Litemof) v. Ashmore (1999), 1999 BCCA 6 , 168 D.L.R. (4th) 637 (B.C.C.A.), leave to appeal refused [2000] 1 S.C.R. vi, anomission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored ormisconceived the evidence in a way that affected his conclusion.

Without this reasoned belief, the appellate court cannot reconsiderthe evidence. [2] [Emphasis Added] [56] Recently in BJT v JD, 2022 SCC 24 (at para 56), the Supreme Court affirmed the standard of review for child custodymatters as set out in Van de Perre v Edwards and Hickey v Hickey, (SCC), [1999] 2 SCR 518: “an appellate court isnot entitled to intervene unless there has been ‘a material error, a serious misapprehension of the evidence, or an error in law’” (at para52).

The Supreme Court determined that “[a]n omission is only a material error ‘if it gives rise to the reasoned belief that the trial judgemust have forgotten, ignored or misconceived the evidence in a way that affected his conclusion’” (BJT v JD at para 56 citing Van dePerre v Edwards at para 15). [57] The Van de Perre v Edwards standard reflects the “high level of judicial discretion” in determining the best interests of achild (BJT v JD at para 53). The Supreme Court affirmed that “an appellate court must act with restraint” and exercise due deference(BJT v JD at para 56).

This deference to judicial discretion in child custody matters instances an approach that: promotes finality in family law litigation, recognizes the importance of the highly discretionary nature of the decision and theappreciation of the facts by the judge at first instance who heard the parties directly, and avoids giving parties an incentive to appealjudgments in the hope that the appeal court will have a different appreciation of the relevant factors and evidence. (BJT v JD at para 59) [58] In this appeal, the issues involve questions of law, fact, and mixed fact and law. [59] To summarize, the standard of review is correctness on questions of law; palpable and overriding error is the standard for factand mixed fact and law. [60] I now turn to the Director’s application to introduce new evidence on this appeal.

New Evidence [61] The Director applies to introduce new evidence on this appeal, consisting of an Affidavit sworn on April 20, 2022, byLeighton Sealey, EF’s caseworker from March 2020 onwards. This Affidavit recounts events that took place after the trial. [62] The Director argues that the new evidence is relevant given that it deals with a child’s best interests, could not have been putforward at the trial, and is credible given the professional position of the affiant in relation to the facts.

The new evidence would beequally probative if a new hearing is ordered or if this Court replaces the PCJ Decision to place EF with her parents with the granting of aPGO. The new evidence will assist the Court in coming to a fully informed decision about EF’s best interests. [63] JL opposes the introduction of this new evidence in its entirety or, alternatively, takes the position that only portions should beadmitted on appeal. [64] In brief, Sealey deposes that:

a) No visits between EF and the Parents occurred in the Parents’ home after the trial and before the rendering of the Decision;

b) Despite the efforts of Sealey and the Director to arrange the home environment assessment that the Court ordered in September2021, the assessment has not occurred. The Parents cited various reasons for not scheduling the assessment.

c) On October 25, 2021, HF requested a new visitation schedule, which included overnight visits on weekends at the maternalgrandmother’s home. Sealey tried to

schedule the home environment assessment. HF said that this was not among the Parents’ prioritiesat that time.

d) The visits that occurred happened at the maternal grandparents’ home. During October 2021, scheduled visits took place underthese circumstances with only one cancellation due to an event at EF’s school.

e) In November 2021, visits occurred on Sundays only. There was a confrontation on November 7, 2021, in front of EF, when thematernal grandmother tried to take EF from the paternal grandparents’ home.

f) HF refused the opportunity to participate in EF’s letter to Santa, concerned that this would be used against the Parents in court.

g) In December, HF said the Parents no longer had a car and cancelled their visit with EF. Gas cards were offered but the Parents didnot meet the family support worker to sign off on receipt of the gas gift cards.

h) The Parents last visited with EF on December 25-27, 2021, with transportation facilitated through a “service partner” of theDirector.

i) Visits were cancelled because of weather and Covid, and virtual visits were declined by the Parents (although there was a telephonevisit). All visits, offered every Friday to occur on the Saturday, were declined because the Parents reported Covid symptoms eventhough, according to Sealey, the visits could take place with an asymptomatic parent by this point.

j) Sealey has offered resources including counselling, a dietician, and the PPA. HF said he would not work with the service teambecause they are against the Parents.

k) In March 2022, EF told her paternal grandfather that she was upset that her Parents cancel visits and do not want to see her.

Sheasked Sealey to tell “the judge” that she wants to live with her uncle; that her Parents will not have video calls with her; that they are“sick in the head and the heart because they don’t understand things.” [65] As a rule, appeals are based only on the record that was before the originating decision-maker. [66] In GRN v RDE, 2014 ABQB 502, Schutz J (as she then was) held (at paras 34-35): In my determination of all matters relating to the fresh evidence, I take guidance from the Supreme Court of Canada,particularly Catholic Children’s Aid Society of Metropolitan Toronto v CM, (SCC), [1994] 2 SCR 165 at para 23, 113DLR (4th) 321 [Catholic Children’s], by which authority I am instructed that fresh evidence will be only admitted in cases concerning achild’s welfare where it: (

a) could not have been adduced before; (

b) was highly relevant in that it enabled the Court to make determinations on an accurate picture of the situation at hand; (

c) was potentially decisive as to the child’s best interest; (

d) was credible; (

e) was uncontroverted; and (

f) bridged the gap between the evidence submitted before the two levels of Court. [67] A gloss on Catholic Children’s is found in BH v Alberta (Director of Child Welfare), 2002 ABQB 371 at para 18, whereKent J held that “the power to admit fresh evidence must be understood in context, that is, circumscribed with reference to the appellatestandard of review applicable to a decision of a Provincial Court Judge” in child welfare proceedings. [68] Even if evidence meets the Catholic Children’s test, it must still meet the general requirements of admissibility, includingrelevance, materiality, and compliance with the rules of evidence. [69] The Supreme Court in Barendregt v Grebliunas, 2022 SCC 22 confirmed that the test in Palmer v The Queen, (SCC), [1980] 1 SCR 759 (at p 775) is still operative and applies to new evidence that arises post-trial: “[t]he overarching considerationis the interests of justice, regardless of when the evidence, or fact, came into existence” (at para 3). [70] The factors set out in Catholic Children’s align with the Palmer test: (

i) the evidence could not, by the exercise of due diligence, have been obtained for the trial (provided that this general principle will notbe applied as strictly in a criminal case as in civil cases); (ii) the evidence is relevant in that it bears upon a decisive or potentially decisive issue; (iii) the evidence is credible in the sense that it is reasonably capable of belief; and (iv) the evidence is such that, if believed, it could have affected the result at trial. (Barendregt v Grebliunas, at para 29) [71] The Court in Barendregt v Grebliunas made observations concerning the best interests determination (at paras 96-97): The best interests of the child are an important legal principle in our justice system . . . [i]t is a staple in domestic statutes, internationallaw, and the common law . . . [b]ut, even with a wealth of jurisprudence as guidance, determining what is “best” for a child is never aneasy task.

The inquiry is “highly contextual” because of the “multitude of factors that may impinge on the child’s bestinterest”: Canadian Foundation for Children, Youth and the Law, at para. 11; Gordon, at para. 20. [72] While “finality and order are critically important in family proceedings,” and variation mechanisms might be preferable: [i]n cases where the best interests of the child are the primary concern, the Palmer test is sufficiently flexible to recognize that it may be

in the interests of justice for a court to have more context before rendering decisions that could profoundly alter the course of a child’s life. ( Barendregt v Grebliunas at para 4 ) [ 73 ] Bearing in mind that this is an appeal with respect to a child’s best interests, which are always evolving, this evidence is relevant and material. [ 74 ] On appeal there is no other way to get this evidence before the Court.

The new evidence was not before the PCJ. [ 75 ] But the new evidence does shed light on events that occurred between the trial and the appeal, and bears on the very issues that were before the PCJ. [ 76 ] This new evidence raises hearsay issues, and the evidence is presently untested and uncorroborated. There are possible credibility issues.

I say that without reaching any conclusions or casting any doubt on Sealey’s intentions but, as in all litigated matters, there are two or more sides to every story. [ 77 ] The new evidence, if before the PCJ and believed, could have altered his decision. [ 78 ] Therefore, I admit the new evidence, in part.

In doing so, it is being considered in this appeal and contributes to my conclusion – indicated elsewhere – that a new trial is necessary. [ 79 ] The portions of the new evidence that are admitted on this appeal are those that relate to the Parents’ visitation patterns and Sealey’s firsthand conversations with the parties and EF, which includes the evidence about the home environment assessment not being completed, the Parents’ failure to spend court-ordered time with EF, and the various excuses. [ 80 ] I do not admit the evidence of HF’s statement that the home environment assessment was not a priority for the Parents, the confrontation of November 7, 2021, and the Santa letter.

EF’s purported statement to Sealey about her Parents is admitted only for her dismay, not her understanding of the Parents’ issues. Discussion and Analysis [ 81 ] I will now address each of the grounds of appeal: evidentiary failings; CYFEA errors; and patent wrongness. Evidentiary Failings [ 82 ] The Director argues that the PCJ erred in disregarding, significantly misapprehending, and failing to give appropriate weight to evidence concerning:

a) EF’s diagnosis and prognosis;

b) The risk of emotional and physical harm to EF;

c) The Parent’s refusal to visit with EF;

d) Family violence; and

e) The professional and mental health supports offered to the Parents, and the Parents’ lack of engagement with those supports. [ 83 ] These constitute a failure on the part of the PCJ to appropriately weigh the evidence, both documentary and viva voce , and are thus a palpable and overriding error. EF’s Health and Risk of Harm [ 84 ] The PCJ found that during the first two years of her life EF did not grow sufficiently and a pediatrician determined that hospitalization was in order as EF had not attained the third percentile for height and weight for her age.

The Parents were “skeptical of the diagnosis and expressed throughout a belief that [EF] was just small due to her heritage and that she was eating” but they agreed to the hospitalization [Trial Transcript 9, p 2, ll 9-10]. The Parents were both involved in EF’s care while she was in the hospital. [ 85 ] The PCJ did not address the evidence that the family support worker, Haley Norton, arranged for the Parents to see a dietician [Trial Transcript 3, p 51, ll 8-35]. This is an important piece of evidence that, in my view, was ignored or misconceived. [ 86 ] Dr.

Leonard testified as an expert at the trial, giving evidence that EF was not receiving sufficient food intake despite the Parents’ representations: they [the Parents] were being very compliant to everything I asked, but on a whole, if you looked at her growth curve over a year and a half, it looked abysmal and she [EF] hadn’t gained. [Trial Transcript 1, p 82, ll 35-37] [ 87 ] Dr. Leonard further testified that she asked JL whether JL’s own eating behaviours directed EF’s eating problems: we had been talking about why [EF] wasn’t gaining weight. And I asked her [JL], do you eat when you’re stressed.

And she said, no. And I said, does [EF] eat when you are stressed. And mom again said, no. [Trial Transcript 1, pp 86-87, ll 41-1] [ 88 ] Dr. Walton testified that EF, following admission to the hospital, was diagnosed with failure to thrive. Dr. Walton reviewed

the radiology report for EF, which showed periods of stopped growth suggestive of severe malnutrition. Initially, JL assisted in feeding EF. However, concerns about inaccurate accounting of the amount EF ate led to the hospital staff “having dieticians make the food selections and having nursing observe and, kind of, oversee the mealtimes” [Trial Transcript 2, p 10, ll 11-13]. [ 89 ] Dr. Walton also testified about mental health concerns related to JL.

The hospital staff provided “resources and links and contact information for mental health services, and recommended she seek the advice of her own physician to get those services” [Trial Transcript 2, pp 16, ll 38-40]. Dr. Walton described the referral to Dr. Hapchyn. [ 90 ] Dr. Hapchyn testified that, in her opinion, the diagnosis of failure to thrive was subsequently borne out by the fact that EF did in fact grow and thrive after leaving the hospital by using a nasal gastric tube and teaching her about food.

There was no evidence to show that EF’s growth could not have occurred if she had been allowed to go home with her Parents, only the supposition that it had not occurred while in their care during the first three years of her life and that the Parents were resistant to the diagnosis and the understanding that EF has issues with food, which needed to be addressed. [ 91 ] In December 2020, Dr. Hapchyn scheduled a meeting with the Parents to discuss “concerns about the information they [the Parents] provided not matching what the hospital had told me.

And then, I had not heard from them again until the summer of 2021” [Trial Transcript 2, p 57, ll 30-32]. However, Dr. Hapchyn testified that when that discussion did eventually happen the Parents “didn’t agree with the description of the doctors at the Stollery and the description of -- of [EF’s] growth challenges” [Trial Transcript 2, p 58, ll 9-11]. [ 92 ] Dr. Hapchyn was concerned about JL’s mental health (as was Dr. Walton, noted earlier) and consequently provided JL with information on an eating disorder program for adults and a referral to a psychologist. Dr.

Hapchyn also voiced concerns about HF’s mental health. [ 93 ] The PCJ acknowledged the diagnosis of malnutrition leading to failure to thrive. That diagnosis was supported by evidence to the effect that EF did not gain weight or height “on the curve” or in the “trajectory” expected for children of her age. Bone scan x-rays led to a report from a radiologist that there were marks or striations on EF’s bones consistent with a period where her growth had stopped.

The radiologist did not testify and the doctors who did testify made it clear that they relied on the radiologist’s report and were not qualified themselves to interpret the x-rays.

It was acknowledged by one of the doctors that there could be other explanations for the striations, but that they accepted and relied upon the report to conclude that they arose from growth stoppage caused by malnutrition. [ 94 ] The PCJ’s characterization of the Director’s failure to call a radiologist and statement that the doctors who testified relied on radiology reports, was improperly held against the Director, particularly where no evidence was called by the Parents to contradict the medical evidence that was before the PCJ. [ 95 ] Curiously, the PCJ seems to characterize the dietary deficiencies as a lesser form of abuse: “[t]here is certainly no question of child abuse, other than the issue around feeding EF properly.

There is no suggestion of malfeasance or intentional harm” [Trial Transcript 9, p 6, ll 7-10]. [ 96 ] This is a curious statement. Best interests are not solely compromised by “malfeasance or intentional harm.” A failure to feed a child properly is not a trivial matter. Failing to feed a child properly can be and, in many cases, likely is neglectful even where it is not intentional.

Therefore, neglecting to properly feed a child in these circumstances, resulting in harm, is itself a form of abuse or at least an abrogation of parental responsibility. [ 97 ] The evidence shows a failure on the part of the Parents to meet a fundamental and basic need of this child to the point of necessary hospitalization. [ 98 ] After EF was apprehended, she consistently gained weight, and quickly. A weight chart was in evidence. JL disputes EF’s weight gain in the face of clear medical evidence. JL referred to clothing making a difference in EF’s weight, as well as shoes and a diaper.

This disconnect between the Parents’ perception and the medical evidence is apparent in the trial record. [ 99 ] The PCJ concluded that “[t]here are concerns that Mother and Father have not, even now, appreciated the health risk to [EF]” [Trial Transcript 9, p 4, l 29]. [ 100 ] The Parents downplayed or denied any role in EF’s calamitous health condition when she was in their care. The evidence suggests that they did not appreciate the food intake requirements that would prevent EF from being placed into a dangerous health situation.

For example, the evidence suggests that the Parents intentionally stopped seeing EF’s physician, Dr. Woudstra, in 2017 because of the pressure to feed EF and, later, when EF was under Dr. Leonard’s care (in 2019) they decided to drive across Canada for several months. [ 101 ] The evidence is that, when EF was in the Parents’ care, she was not properly nourished. When she was in the hospital and since she has been with her paternal grandparents, she is properly nourished.

The Parents have shown an unwillingness to accept advice and a denial of the problem. [ 102 ] A child’s best interests must, of necessity, include proper nourishment ( Children’s Aid Society of London and Middlesex v T , 2014 ONSC 1115 at para 35 ). [ 103 ] EF’s placement with the paternal grandparents has been positive and should continue, and the PCJ directed reasonable parenting time in their favour. [ 104 ] In my view, the PCJ failed to adequately explain and/or consider EF’s state of health while she was with her Parents in contrast with her state of health after apprehension and placement into the care of her paternal grandparents.

The medical evidence shows marked improvement. The PCJ failed to adequately consider the Parents’ unwillingness to engage with supports and their resistance to medical expert conclusions.

[ 105 ] The PCJ made a palpable and overriding error in not adequately addressing and weighing the evidence of the difference between EF’s health while in her Parents’ care and while in the hospital and in the care of her paternal grandparents. History of Family Violence [ 106 ] In the PCJ Decision, the PCJ referred to two instances of family violence. [ 107 ] EF’s placement with the paternal grandparents addressed the eating issues but was “problematic” because of tension between the paternal grandparents and the Parents, in particular, JL.

This tension led – according to the PCJ – to an incident after a visit with the paternal grandparents where the Parents argued and the HF kicked JL out of the vehicle, with EF in the vehicle and police involvement required. [ 108 ] In another incident, JL hit HF because he had spilled food on his shirt; HF was holding EF at the time. The Parents explained that the maternal grandmother had held a cheque and not deposited it, contrary to the Parents’ request and adding to their financial stresses. Again, this event led to police involvement; in fact, six police cars attended.

While JL downplayed the incident [Trial Transcript 6, p 101, ll 21-34], it could not have been a minor one, especially as it resulted in a peace bond and a no contact order [Trial Transcript 6, p 102, ll 4-7]. [ 109 ] Additionally, Dr. Walton testified about “concerns related to loud arguments and possibly physical altercations between them [the Parents] in the patient room, with [EF] witnessing it.

There were also concerns about, sort of, their inappropriate intimate interactions in the patient rooms -- shared patient rooms” [Trial Transcript 2, pp 11-12, ll 40-2]. [ 110 ] The PCJ concluded that “this is not the classic case of domestic violence” as it did not involve drug and alcohol use.

The PCJ found an absence of child abuse (other than food issues) and a lack of intentionality. [ 111 ] Even proximity to domestic violence can result in harm to a child ( Barendregt v Grebliunas at para 143 ) and “family violence is a significant factor impacting the best interests of the child” ( Barendregt v Grebliunas at para 9 ). [ 112 ] The test does not revolve solely around abuse. Abuse is a factor, and a significant one at that, in assessing best interests ( ZXX v Alberta ( Child, Youth and Family Enhancement Act , Director) , 2009 ABCA 425 at paras 37-38 ). [ 113 ] Section 1(3) (

a) of the CYFEA states that a child is emotionally injured: (ii) if there are reasonable and probable grounds to believe that the emotional injury is the result of (

C) exposure to family violence or severe domestic disharmony, [ 114 ] The CYFEA lists chronic alcohol and drug abuse in s 1(3)(a)(ii)(F), as is a factor separate from family violence or severe domestic disharmony. [ 115 ] Domestic violence does not have to be “classic” or fit into a particular mold to be a factor and does not have to involve substance use or abuse. [ 116 ] The PCJ’s characterization of the evidence of family violence as mild and apparently attributing a light weight to it in determining best interests constitutes an overriding and palpable error.

Parents’ Failure to Spend Time with EF [ 117 ] Between the date of apprehension and the PGO application . . .the Parents did not respond to [EF]’s apprehension in a manner which might normally have been expected. They did not engage with Children’s Services and did not arrange for parenting time with [EF] until December of 2019.

Both in person and video parenting was arranged over the course of 2020 but there were breaks when parenting time did not occur. [Trial Transcript 9, p 4, ll 2-6] [ 118 ] Between Christmas 2020 and July 2021, “no or few visits took place.” The PCJ states: While it is clear that [ EF] was not in danger at that time, there was an insistence in following policy regarding supervised visits etcetera. It does not appear to the Court that common sense was applied to these matters, which resulted in additional stress, lack of trust, and tension with Children’s Services.

Third party hindsight always provides a view that is not apparent at the time, but it would appear to the Court that the situation would have benefited from flexibility. The child was not at risk. It would have been very unlikely the parents would flee with the child and if they did sanctions would have been available. For reasons which were not outlined to the Court, the Parents did not appear at the custody application on December 19th, 2019.

Custody was granted to the Director and a Temporary Guardianship Application continued until November 23rd, 2020 when the Director applied to amend the application to this application for a Permanent Guardianship Order. The matter then continued until the hearing of this application commencing September 16, 2021. By that time [EF] had been in care for 694 days. [Trial Transcript 9, p 4, ll 14-27] [ 119 ] The Parents failed to request visits with EF for months at a time [Trial Transcript 7, pp 1-2, ll 33-22].

The Parents excused themselves from contacting EF [Trial Transcript 7, p 38, ll 19-24]. [ 120 ] The explanations offered by the Parents for not seeing EF for long stretches are self-centred, not child-centred. They claimed to dislike the supervisory requirements, or that it was hard for them to explain the situation to EF if she asked, and they claimed to fear that evidence was being gathered against them. The Parents claimed that their lack of attentiveness was to avoid their interactions with EF being used against them in proceedings [Trial Transcript 6, p 86, ll 20-29].

They focused on themselves and took a strategic approach:

Q Okay. So, if was concern about it would harm you but not [EF]? A Right. Harm our chances, if you will, to get [EF] back in our care. [Trial Transcript 6, p 8, ll 29-30] [ 121 ] Medical professionals also took notice of engagement issues. [ 122 ] Dr. Hapchyn testified that “one of the things that we look for is -- is parents putting the child’s needs over their own needs. And having that commitment over time. And having -- young children depend on continuity of contact to maintain a relationship with -- with a caregiver, with a parent” [Trial Transcript 2, p 64, ll 22-25].

With these aims in mind, the months-long period of no contact between the Parents and EF was concerning to Dr.

Hapchyn, whose testimony confirmed what in my view is obvious to any reasonable person. [ 123 ] The PCJ concluded that the Parents, “who are otherwise attentive, caring and loving, do not want to believe that they starved their child” [Trial Transcript 9, p 4, ll 36-37]. [ 124 ] The PCJ further observed that the proceedings were “not about blaming and shaming” but rather about making sure that EF can recover from the difficulties of failing to thrive and being separated from her parents [Trial Transcript 9, p 4, ll 36-41]. [ 125 ] The facts at trial – on a balance of probabilities – do not conclusively support the conclusion that the Parents’ actions were attentive, caring and loving, whatever their feelings. [ 126 ] The evidence is that the Parents were afforded numerous opportunities to spend time with EF, through various means and in various places.

Visits were scheduled and transportation was offered. [ 127 ] The PCJ clearly considered the Parents’ lack of attention to EF in reaching his decision, but the lightness of the consideration given was an error. [ 128 ] Children require consistency and reassurance that those who love them will demonstrate that love even in the face of inconveniences, annoyances, and perceived obstacles. The trial evidence shows that EF did not receive this from her Parents. [ 129 ] As Cook-Stanhope J stated in DP (Re) , 2013 ABPC 183 at para 119 : Children cannot be parented in fits and starts.

They cannot be parked with individuals indefinitely then retrieved when it is convenient to their caregivers. They are simply not able to accommodate caregiver inconsistency and unpredictability. They need to know that they can rely on one main, reliable and responsive caregiver to meet all of their needs. [ 130 ] The PCJ recognized that the Parents failed to “consistently maintain parenting time with [EF] between apprehension and the time of the PGO hearing” [Trial Transcript 9, pp 3-4, ll 40-1].

The PCJ indicates that Children’s Services was partly to blame for the Parents’ disengagement [Trial Transcript 9, p 4, ll 14-20]. The PCJ expressed a hope that the Parents would overcome their lack of consistent engagement through the Supervision Order. [ 131 ] In my view, this hope is not grounded in evidence. This decision is subject to the standard of proof on a balance of probabilities. Is it more likely than not, based on the evidence at trial, that the Parents would give EF the consistent attention that she requires? That is the heart of the question.

Based on the evidence, the answer would seem to be in the negative. The PCJ’s firm (albeit hopeful) contrary conclusion, based on the trial evidence, is an overriding and palpable error. Parent’s Lack of Engagement with Supports and Assessment [ 132 ] The Director argues that the PCJ failed to consider the Parents’ failure to engage with various supports offered in relation to EF’s issues. The Parents also have not complied with the PPA requirement and declined to

schedule the home environment assessment that was directed by the Court and offered by the Director. [ 133 ] The apprehension order was obtained on October 24, 2019, on the basis that the Parents did not accept the diagnosis and reasons for failure to thrive and there were flight concerns. [ 134 ] EF was placed with her paternal grandparents after discharge and the improvement was significant: “she was now on an appropriate growth trajectory” according to the medical evidence [Trial Transcript 9, p 3, l 9]. [ 135 ] The PCJ concludes that EF is no longer at risk.

She is on the right trajectory for growth and “is not in danger from malnutrition leading to failure to thrive at this time” [Trial Transcript 9, p 6, ll 34-35]. [ 136 ] However, it is clear from the evidence that the Parents and EF require further supports to address EF’s eating history; the Parents’ conduct with respect to EF while she was in care; and the relationship between the paternal grandparents and the Parents. [ 137 ] The PCJ concluded that “[t]he Parents have a stable home” [Trial Transcript 9, p 7, l 13].

The evidence before the Court was that “there was parental disharmony and that father was homeless for a period of time” [Trial Transcript 9, p 7, ll 14-15].

After EF’s apprehension, the Parents’ living situation changed due to family conflict, they encountered unemployment and financial difficulties, and parenting time dedicated to EF was sporadic. [ 138 ] The PCJ commented that “the Parents are now well aware of the need to keep [EF] well nourished and have been made aware of the need for good food habits” [Trial Transcript 9, p 7, ll 11-13]. [ 139 ] Yet, there does not seem to be evidence in support of this conclusion. Rather, the evidence suggests that the Parents “were

resistant to the diagnosis and understanding that they needed to accept that there were issues with [EF] and food and that those issues needed to be addressed” [Trial Transcript 9, p 6, ll 27-29]. [ 140 ] The PCJ found that a “clear pathway to success” was not communicated to the Parents [Trial Transcript 9, p 5, ll 13-14]. The PCJ notes that the PPA “would possibly have been an effective tool to assist in identification of any concerns about the parents’ mental health and provide a doorway to therapy” [Trial Transcript 9, p 5, ll 30-32].

The PPA, the referrals to health care professionals, and the offer of a home environment assessment all appear to be clear pathways indicated by the Director. Notably, the home environment assessment and the PPA were ordered by the Court and have still not been done. [ 141 ] The PCJ found that the Parents “did not engage with Children’s Services and did not arrange for parenting time with [EF] until December of 2019” [Trial Transcript 9, p 4, ll 3-5].

Evidence before the PCJ included the Parents choosing not to engage members of Children’s Services; that they did not attend meetings with or pursue referrals to health care professionals; that they declined meeting with a dietician; and they did not accept direction from the Director. [ 142 ] The PCJ also found that the Parents were required to get a PPA on the adjournment of the TGO application: “the parents failed to make and attend appointments . . . [t]here is no question that the Parents did not do what might have been expected of them given that their child had been apprehended and they cared and loved her and wanted her back in their family” [Trial Transcript 9, p 5, ll 32, 39-41].

The PCJ states: It is clear that they were not ready to accept that their actions could have created the situation where EF was failing to thrive. They did not communicate consistently with Children’s Services and were at times difficult to reach. In short, they might have been what’s described as “difficult parents”. However, that’s the nature of child protection. Of course these parents are difficult. If all was well there would be no need for intervention. [Trial Transcript 9, p 6, ll 1-6] [ 143 ] The PCJ ordered medical supports and monitoring to be put in place during the six-month Supervision Order.

The PPA had to be completed. The Parents need a clear “pathway to success” and this was not provided: In this case, it seems that an early assessment was made that these Parents were difficult and those efforts would not be made. It is clear that the Parents added significantly to the problem by their idiosyncratic behaviour.

As set out earlier, it is Children’s Services’ role, their burden, to deal with difficult Parents and trying to strengthen families and keep families together. [Trial Transcript 9, p 10, 11 27-31] [ 144 ] The evidence was clear that the Parents were required under the Interim Order on Adjournment to complete the PPA. This step would have been invaluable in the Director’s overall assessment of EF’s condition and the role of the Parents in ameliorating or perpetuating that condition.

The PCJ found that the Director, after obtaining the court order requiring the PPA, attempted to facilitate scheduling the PPA with the Parents. The Parents did not take that step between the date of the Interim Order on Adjournment and the time of trial. The Parents explained their failure to complete a PPA as a matter of scheduling and misunderstanding [Trial Transcript 9, p 5, ll 28-32]. [ 145 ] The Parents also declined other recommended resources and supports for the Parents’ mental health and for ensuring EF’s nutritional needs are met [Trial Transcript 6, p 114, ll 27-35].

The Parents were offered many supports and services to assist EF’s health and wellbeing, including dietician advice, but declined to make use of these [Trial Transcript 6, p 85, ll 14-17]. [ 146 ] The root cause of EF’s failure to thrive is reasonably understood as a parenting issue. Absent a diagnosis, or a professional rebuttal, this cause cannot be resolved. The PPA remains a necessary step to reach a resolution. It is still outstanding. [ 147 ] The Director has been involved with EF since she was only seven weeks old.

The protection issues arise from JL’s suspected mental health problems, a history of family violence, and the real harms posed by EF’s “failure to thrive.” [ 148 ] The Supervision Order does not address the risks to the child adequately. There are in fact no supervision terms; the Director’s involvement is restricted to paying for services and referring the Parents to resources.

The Supervision Order specifically states that it is “intended to assist with the transition [to parental care], not be a tool for further intervention” [Trial Transcript 9, p 9, ll 5-6]. [ 149 ] The PCJ noted that EF will be in school and can be watched in that environment even though that is not necessarily the core role of the education system. The PCJ concluded that the Parents are now aware of nutritional issues, and they have a “stable home.” [ 150 ] It was an error to suggest that EF’s issues can be monitored when she is in school.

The PCJ was correct in noting that this is not the specific role of education professionals: any problems that might be noticed would be a matter of good fortune, as EF would be one of many children in a school and in a classroom, and a teacher would not necessarily (and would probably not) have the information needed to assess EF against any benchmarks. [ 151 ] Overall, this was a “cause and effect” situation. EF was failing to thrive while in her Parents’ care. Since she has been out of their care, she no longer has this problem.

The Parents failed to cooperate with the PPA, showed a disconcerting lack of attention to EF for extended periods of time, refused to acknowledge medical concerns, and resisted attempts to address the health and safety problems faced by EF. [ 152 ] I find that the PCJ erred in downplaying the risk to EF from the Parents not following the recommended courses of action, whether recommended by the Director or health care professionals.

These courses of action represented a “pathway to success.” With the Parents’ poor track record of accepting expert recommendations, following through with court instructions, and failing to regularly access support resources designed to further EF’s best interests, it was a palpable and overriding error to assume that the supports connected with the Supervision Order would in fact be accessed and used. Conclusion on Evidentiary Grounds of Appeal

[ 153 ] The PCJ made errors of fact.

Therefore, the standard or review is palpable and overriding error. [ 154 ] I find that the PCJ made a palpable and overriding error by downplaying, misapprehending, and failing to give appropriate weight to the evidence, both documentary and viva voce , of the Parents’ lack of engagement with EF; EF’s diagnosis and their response to it; the Parents’ refusal and/or failure to engage with supports and demonstrate an appreciation of EF’s health issues; and the family violence that took place in front of EF. [ 155 ] These errors are clear – a “beam in the eye” – and therefore palpable.

Further, they underpin the PCJ decision and are therefore overriding. CYFEA Errors [ 156 ] The Director argues that the PCJ misapplied and misinterpreted the relevant provisions of the CYFEA in the context of EF’s best interests, safety, security, and development. [ 157 ] These are errors of mixed fact and law, or errors of law. The standard of review is correctness with respect to questions of law and palpable and overriding error on mixed fact and law. The Legislative Scheme [ 158 ]

Section 2 of the CYFEA highlights the fundamental importance of the best interests of the child as the overarching consideration in protection matters, or any other decision made under the Act: If a child is in need of intervention, a court, an Appeal Panel and all persons who exercise any authority or make any decision under this Act relating to the child must do so in the best interests of the child . . . [ 159 ] The best interests determination is informed by a non-exhaustive list of factors that must be considered by the decision-maker (s 2(1)(a)-(l)). They include: [3] (

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; (

i) subject to clause (h), if the child has been exposed to family violence within the child’s family, intervention services should be provided to the family in a manner that supports family members and prevents the need to remove the child from the custody of an abused family member; (

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 (

i) the benefits to the child of a placement within the child’s extended family, or with persons who have a significant relationship with the child, (ii) the benefits to the child of a placement within or as close as possible to the child’s home community, (

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

k) in the case of a child who has a disability, planning for the care of the child should address the need for resources and supports adequate to the unique needs of the child. [ 160 ] Supervision orders are governed by s 28 of the CYFEA : 28

(1) The Court may make a supervision order for a period of not more than 6 months if it is satisfied that (

a) a child is in need of intervention, and (

b) mandatory supervision of the child and a person residing with the child and the compliance by that person with the terms of the order are necessary to adequately protect the safety, security or development of the child.

(2) The Court shall consider the recommendations of the director with respect to the terms of the supervision before making an order under this section.

(3) A supervision order shall

a) require that a director supervise the child within the residence of the child, and

b) set out reasonable terms in respect of

i. the frequency of visits at the residence by a director, ii. the assessment or treatment of the child or any person residing with the child,and iii. any other terms that the Court considers necessary. [161] PGO processes require consideration of ss 2 and 34(1) of the CYFEA: 34(1) The Court, on application pursuant to this Division by a director, may make a permanent guardianship order appointing thedirector 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’sguardian, 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.

(4) If the Court makes a permanent guardianship order, the director is the sole guardian of the person of the child and the Public Trusteeis the sole trustee of the estate of the child.

(5) A director shall, on request, send the Public Trustee a copy of the permanent guardianship order.

(8) On making a permanent guardianship order or at any time during its term, the Court, on the application of a director, a formerguardian of the child, the child if the child is 12 years of age or older or any other person with whom the child has a significantrelationship, may make an order prescribing the access to be provided between the child and the former guardian or that other person.

(9) No order under subsection (8) relating to a child who is 12 years of age or older shall be made without the consent of the child.

(10) A director may enter into an agreement with

a) a former guardian of a child who is the subject of a permanent guardianship order, or

b) any person who has a significant relationship with a child who is the subject of a permanent guardianship order providing for visits or other access to be provided between the child and the former guardian or other person.

(11) No agreement under subsection (10)(

b) relating to a child who is 12 years of age or older shall be made without the consent of thechild.

(12) The Court shall not make an order under subsection (8) unless it is satisfied that the access provided by the order will not interferewith the adoption of the child.

(13) If an order is made under subsection (8), a director, the child if the child is 12 years of age or older, or the person to whom access isprovided in the order may apply to the Court for a review of the order. Best Interests of the Child [162] As stated earlier, the child’s best interests are the primary focus. While a range of factors inform that determination, no singlefactor supersedes best interests as a whole and such factors are not, in and of themselves, determinative. The factors do not represent aseries of boxes that must be checked, nor do they stand in priority to each other.

They work together in a blended fashion to assist indetermining the best interests of the child whose situation is before the court. [163] The best interests analysis is holistic, requiring “a broad view of past, present and future circumstances and needs of the child”:SKAM v CA, 1995 ABCA 62 at para 7. [164] As noted by our Court of Appeal in TW v Alberta (Child, Youth and Family Enhancement Act, Director), 2009 ABCA 25:“[t]hese statutory considerations inform all decisions under the CYFEA and their importance is not diminished when a child is in care ofthe Director.

Arguably that is when they become of greatest significance” (at para 30). However, it was also stated in TW v Alberta thatthe CYFEA and the Family Law Act, S. A. 2003, c F-4.5 . . . explicitly mandate consideration of a child’s best interests in any decision or proceeding under them (see: s. 18 of the FLA, and s. 2 ofthe CYFEA) and the ultimate purpose behind both pieces of legislation is the best interests of children.

However the CYFEA goes toconsiderable lengths to emphasize that the legislation is premised on enhancing, supporting, and preserving the family wheneverpossible, keeping children with their families, developing involvement, and encouraging responsibility for the care of their children. (atpara 29) [165] One can posit that there is a presumption in favour of placement with a parent in child protection proceedings (New Brunswick(Minister of Health and Community Services) v G (J), (SCC), [1999] 3 SCR 46 at para 76).[4] The Court in TW vAlberta explicitly held that “[i]n a list of 15 specific statutory considerations at least 11 speak directly to the preservation of the family,broadly understood” (at para 30) and refers to an older case, KVW v Alberta (Director of Child Welfare), 2006 ABCA 404 where theAlberta Court of Appeal . . . concluded, at para. 31, that the concept of keeping a child within the “family” must necessarily include the extended family.

The

Court noted that s.2(i)(

i) of the CYFEA provides expressly that any decision concerning the placement of a child outside the child’sfamily takes into account the benefits to the child of a placement within the child’s extended family . . . [a] purposive

interpretationaccords with these goals. (TW v Alberta at paras 31-32) [166] See also MT v Alberta (Director of Child Welfare), 2005 ABCA 125 at para 20: “[s]ection 2 [of the CYFEA] sets out theguidelines for determining what is in the ‘best interests of the child.’ These guidelines indicate, among other things, that a child’s bestinterests are usually served by maintaining the family unit where that is possible.” [167] However, it must be stressed that best interests are of paramount importance.

Fraser CJA stated in T v Alberta (Director ofChild Welfare), 2000 ABCA 182 (at para 14): In the end, this Act [the CYFEA] is about protecting children from harm; it is a child welfare statute and not a parents’ rights statute. Thatdoes not mean that parental interests – or family interests – are to be cavalierly treated or ignored. There is no doubt that there can be fewthings more devastating to a parent and the relationship with his or her children than to face proceedings by the state based on an allegedfailure in parental duties: New Brunswick (Min. of Health & Com Services v.

G.(J.)) (SCC), [1999] 3 S.C.R. 46. Buthere, the Legislature has sought to strike what it considers to be an appropriate balance between the state’s responsibility to protectchildren on the one hand and the guardian’s nurturing responsibility on the other.

These respective responsibilities, often referred to asrights, may be in accord or in conflict depending on the particular circumstances. [168] I agree with the conclusion of Judge D’Souza of our Provincial Court, who held in XS (Re), 2020 ABPC 223 (at para 45) that“[w]hile s 2 of the CYFEA must be considered with the least intervention by Children’s Services and generally a goal to keep the familytogether, this must all be considered in what is in the children’s best interest.” [169] The Alberta Court of Appeal confirmed the primacy of best interests in AR v Alberta (Child, Youth and Family EnhancementAct, Director), 2014 ABCA 148 saying that it is: statutorily mandated by

section 2 of the Child, Youth and Family Enhancement Act, RSA 2000, c C-12 which provides that, in exercisingany authority or making any decision relating to a child who is in need of protective services, the court must act “in the best interests ofthe child”.

Section 2 further provides that in doing so the court is to consider, among other things, the benefits to the child of stabilityand continuity of care and relationships, and that “there should be no unreasonable delay in making or implementing a decision affectinga child”. (at para 18) [170] Enumerated statutory factors are “the starting point for assessing the relevance of biological ties” (at para 93). Sections 1(1)(b)and (

c) of the CYFEA define “biological father” and “biological mother” respectively. In addressing adoption information, the CYFEAspecifies in s 74.2 that “parent” means “a biological parent and an adoptive parent.” By contrast, the factors enumerated in s 2 of theCYFEA that are relevant to EF’s situation do not relate specifically to biological parents or biological ties. Paragraphs (a), (b), (h), (i),and (

j) refer to the importance of family ties. In referring to family, these statutory provisions do not privilege parents over other familymembers, such as grandparents. Paragraph (

j) refers to “people who care about the child.” No specific biological tie is prioritized in thestatutory factors. Rather, the list emphasizes “the child’s long-term safety and well-being” (s 2(1)(g)). [171] The weight to be given to biological ties in determining best interests was recently discussed in BJT v JD.

The Supreme Courtdetermined that “a parent’s mere biological tie is simply one factor among many that may be relevant in some cases to a child’s bestinterests, which is and must be the paramount consideration” (at para 87). [172] BJT v JD involved a custody dispute between a biological father and a biological grandmother.

The Supreme Court cautionedagainst overstating “the importance of a biological tie” and found that “nothing in the record establishes that one type of tie is better thanthe other” (at para 100), concluding that [c]omparing the closeness or degree of biological connection is a tricky, reductionist and unreliable predictor of who may best care for achild.

It fails to take into account how often other family members assume care for children whose biological parents cannot act ascaregivers as a result of addictions, mental health issues, criminal behavior, or other challenges. (at para 108) [173] The Supreme Court instructs that, “[w]hile biological ties may be relevant in a given case, they will generally carry minimalweight in the assessment of a child’s best interests” (at para 109). [174] I rely on Martin J (as she then was) in AD v Alberta (Director of Child, Youth and Family Services), 2011 ABQB 577 (at para71): Section 34(1) is therefore to be read and applied together with the factors listed in

section 2 of the Act. However important a value,family unity cannot always be maintained where a child is in need of intervention. In such cases the best interests of the child mayconflict with and take priority over the desire to preserve family unity.

The PCJ Decision [175] The PCJ held that that the “first priority” of the CYFEA is the “enhancement of families for the purpose of providing a safe andsecure place for children to live and grow” and the Director must work with families and support them “towards a successfulreintegration of the family where that is possible” [Trial Transcript 9, p 5, ll 2-4, 8-9]. [176] The PCJ suggested that “[t]he fundamental principles of the Act are in the enhancement of family and keeping the children withfamily where at all possible, but then the bulk of the Act is in child protection because that’s what requires the most rules” [TrialTranscript 8, p 13, ll 20-22].

[ 177 ] The PCJ further observed that, in interpreting the CYFEA , “you would have to start by saying that the fundamental is how can you enhance the immediate family” [Trial Transcript 8, p 14, ll 14-15]. [ 178 ] On its own, malnourishment is a critical medical issue.

But, when considered together with issues of domestic violence, non- compliance with medical advice, lapses in care and communication with the child, and, ultimately, a disregard for the child’s welfare, a picture of neglect takes shape. [ 179 ] Despite the evidence of the foregoing, the PCJ seems to have prioritized one factor – family reunification – in determining best interests over all the others. This approach suffuses the entire PCJ Decision.

Whether he meant to say this or not, the effect of his decision – returning EF to her Parents’ care under a Supervision Order – strongly suggests that the holistic and balanced approach that is required by law when determining best interests of children was not at the forefront in the PCJ’s reasoning. [ 180 ] The goal of reunification or immediate family enhancement is noted, but on the facts here it cannot take precedence over a broad view of the child’s best interests. [ 181 ] The PCJ erred to the extent that his reasoning prioritized biological ties or family reunification over EF’s overall best interests – which are concomitant with the malnourishment, non-compliance, family violence, and lack of parental engagement issues.

Patent Wrongness [ 182 ] Finally, the Director argues that the PCJ was “patently wrong.” The Director’s brief states that “[t]he trial judge’s errors of fact and law are fatal . . . it is clear and obvious that had the trial judge properly regarded the evidence before him, he could not have come to the conclusion he did.” [ 183 ] This is an error of mixed fact and law, or law, and therefore the standard of review is correctness. [ 184 ] As I have found an error of law in the application of the CYFEA and an error in fact on evidentiary grounds, it is not necessary to address this ground of appeal which appears to be a “catch all” in any event.

Decision [ 185 ] I am mindful of the direction in s 2(1)(

m) that “ there should be no unreasonable delay in making or implementing a decision respecting [a] child” under the CYFEA . This was a complex matter, and I commend the PCJ for his timely, thorough, and thoughtful reasons. [ 186 ] The need to avoid delay in decisions of this nature is important, as noted by Watson J in Alberta v AS : “[a]part from the usual advantages that Trial Judges would have on factual questions, the desirability of having the legal process adjudicated in a final manner, expeditiously, is particularly acute when it comes to child custody and access. This is also a factor expressly identified in

section 2 (

o) of the Child, Youth, and Family Enhancement Act . ” (at para 89) [ 187 ] While recognizing the need for timeliness, I allow the appeal. [ 188 ] In doing so, I am aware that this will prolong the litigation. However, it is in the interests of justice, which are co-situated with EF’s best interests, that a proper result be attained.

There is nothing before me to indicate that EF is presently in danger, health-wise or in any other way. [ 189 ] As stated in Hydro-Québec v Matta , “[a]n error is palpable if it is plainly seen and if all the evidence need not be reconsidered in order to identify it, and is overriding if it has affected the result” (at para 33). [ 190 ] Firstly, the PCJ made a palpable and overriding error, and misapprehended the evidence, by not placing sufficient emphasis on the facts established by evidence that EF’s medical problems arose when she was with the Parents and were ameliorated or eliminated when she was in the hospital and in her grandparents’ care.

Even if the various evidentiary issues might, individually, not give rise to error, taken as a whole they represent palpable and overriding error. [ 191 ] Secondly, the PCJ was incorrect when he overemphasized reunification with the Parents over EF’s best interests, thus misstating or misapplying the law. [ 192 ] The result was affected, as EF has now been directed to return to her Parents’ care under a six-month Supervision Order. [ 193 ] In an appeal of an order made under the Family Law Act , SA 2003, c F-4.5 , this Court has the power to confirm the order, set it aside, make any order that the Provincial Court could have made, or direct the Provincial Court to conduct a new hearing under r 12.70 of the Alberta Rules of Court , Alta Reg 124/2010 . [ 194 ] The new evidence that I considered in this appeal shows that the issues that were before the PCJ, which he attempted to address through the Supervision Order and its built-in temporal limits and conditions, are extant and they are problematic: parental resistance to supports and lack of involvement with EF continued after the trial. [ 195 ] The correct result will require a proper weighing of the evidence.

There are credibility findings needed to meet the statutory requirements of a supervision order under s 28 of the CYFEA or a PGO under s 34 of the CYFEA . [ 196 ] I am mindful of the Court’s direction in Barendregt v Grebliunas about evidence that “ has not been put to the test of cross-

examination or rebuttal at trial, and the adverse party may not have had the ability to verify its accuracy” (at para 46). Therefore, a new trial will allow for cross-examination and responsive evidence.

This may include expert evidence called by the Parents. [ 197 ] Finally, there is a strong need for all the best interests factors to be considered together, without prioritization, in accordance with the existing jurisprudence and the wording of the CYFEA . [ 198 ] I direct a new hearing under r 12.70. [ 199 ] Until the PPA and home environment assessment are completed, the Court cannot be satisfied that EF’s safety, health, and best interests will be met if she is returned to the Parents.

The home environment assessment, which the PCJ directed, and the PPA, which Judge Ho first directed on September 21, 2020, in the Interim Order on Adjournment, will be of great assistance to the judge hearing this matter and determining EF’s best interests. [ 200 ] The PPA and home environment assessment must be completed prior to the new hearing. [ 201 ] The stay granted by Lema J on December 23, 2021, is confirmed and remains in place until further order of this Court.

I am not seized with this matter; in particular, I am not seized with any application to vary the stay. [ 202 ] There shall be no order as to costs. Heard on the 26 th day of April, 2022. Dated at the City of Edmonton, Alberta this 14 th day of October, 2022. S.N. Mandziuk J.C.K.B.A. Appearances: Susan Turner for the Director of Child, Youth and Family Enhancement Chelsey Grue for JL HF Self-represented Patricia Bokenfohr for EF

[2] See also Zack v Popp , 2019 ABCA 50 (at para 14 ), cited by Loparco J in MGR v MRD , 2021 ABQB 250 (at para 17 ). [3] In this case, EF’s opinion is not relevant (s 2(1)(b)) and there was no evidence before the PCJ that EF is indigenous (s 2(1)(c)). Other sections that do not appear to be of particular relevance on the facts at trial are cultural affects and effects (s 2(1)(e)) and “the child’s race, spiritual beliefs, colour, gender, gender identity, gender expression, age, ancestry, place of origin, family status, sexual orientation and any disability the child may have” (s 2(1)(f)).

Similarly, the extra-family placement factors in ss 2(1)(j)(iii) and (iv) do not play a role here. Section 2(1)(

l) pertains to youth transitioning to adulthood, which is not relevant here.