Alberta ( Child, Youth v. Family Enhancement Act, 2023 ABCJ 206

In the Alberta Court of Justice Citation: Alberta ( Child, Youth and Family Enhancement Act , Director) v DB, 2023 ABCJ 206 Date: 20230921 Docket: CP903001712 Registry: Edmonton In the Matter of Application Under

Section 32 of the Child, Youth and Family Enhancement Act Regarding the Children, MB, Born December, 2010 and TB, Born October 2007 Between: Alberta ( Child, Youth and Family Enhancement Act , Director) Applicant - and - DB 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. Oral Decision of the Honourable Justice J.C. Lloyd I. Introduction

[ 1 ] This is the Director of Child and Family Services’, (the Director’

s) application for the permanent guardianship of the child TB and temporary guardianship applications of the child MB. The trial ran for several days and evidence was tendered from many witnesses. [ 2 ] For the reasons to follow, I grant the permanent guardianship order sought in respect of TB and dismiss the Director’s application for temporary guardianship for MB.

MB is to be returned home to his mother. [ 3 ] As a preliminary matter, I am satisfied that the Director has discharged its duties of notice to and engagement of the appropriate Indigenous bodies as prescribed by An Act Respecting First Nations, Inuit and Metis children youth and families (S.C. 2019, c 24 ). [ 4 ] I note that this trial was the first full adjudication of the merits of this matter. Initial custody was granted to the Director after a court undertook a

summary proceeding shortly after the children were apprehended. That court determined that the Director had met a low evidentiary standard and directed that the children should retain custody of the Director until a full hearing could be held of the merits. The mother has never consented to the children being in the care of the Director. The initial custody order was made more than three years ago. This is far too long of a delay between apprehension and a meaningful consideration of the evidence. II.

Regarding the Child, TB [ 5 ] It became clear during the trial that the Director’s application for a permanent guardianship order (PGO) is mostly uncontested. The director seeks PGO and notes that TB has refused contact with his mother since the incident that led to his apprehension. Further, TB, through counsel seeks PGO, and TB, through a judicial interview conducted by me during the last days of the trial, confirmed that he wished a PGO be granted. Further still, Ms. B advised during the trial that she does not seek the return of TB to her care.

Finally, I find on all of the evidence heard at the trial that the Director has met its onus and that PGO is the proper order here. [ 6 ] Ms. B said that TB continues to struggle with behavioral issues and that she would have difficulty managing his behaviors should be returned home. Ms. B also said that she respects TB’s wishes, that he is 15 years old now and approaching adulthood, and that she wishes to respect his choice to remain in the Director’s custody. Ms.

B did say during the trial that she might wish to continue to have or to share decision-making authority over TB. [ 7 ] TB has said that he does not want his mother to continue to have decision-making authority. He said that he would prefer to be able to work directly with his support workers to map out his care and his future. I also note that the Act does not contemplate granting ongoing decision-making authority to a guardian where there is no expectation that the child will be returned to that guardian. [ 8 ] To conclude, I grant a PGO in respect of TB.

I also direct that in that order ongoing access will be permitted between TB and his mother should TB wish to have that contact. In making this access order I note that TB has said that he wants to pursue a relationship with his mother. In particular, he says that once the PGO is granted and he feels secure in this new status, he plans to stay in contact with his mother. Ms. B has been very clear that she loves her son, I have also heard evidence that the mother regrets the incident in May of 2020, has taken responsibility for her

part in the incident, and that she hopes that the two can work toward a good relationship in the future. It makes sense then that the PGO will permit but not compel ongoing contact between TB and Ms. B and that is the order. Both TB and MB have said that they want to remain connected as siblings and so I will include as a contact order that TB and MB will continue to see each other regularly. III. Regarding the child, MB [ 9 ] The Director’s application with respect to MB is contested. The Director filed and served on Ms. B an application for a temporary guardianship order (TGO).

At the conclusion of the trial, however, the Director invited me to consider a PGO for MB and said that it had become their position by the end of the trial that PGO was the right order for this child on the evidence. [ 10 ] The law is clear that the right of parents to raise their children and the right of children to be raised by their parents is a right expressly recognized as a priority in the Child Youth and Family Enhancement Act (CYFEA) RSA 2000 C. C-12 and protected by s.7 of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c.11 . The Director can interfere with this right only by meeting its onus of proof set out in the Act . The CYFEA and the Federal Act,

An Act Respecting First Nations, Metis and Inuit children, youth and families , also makes it very clear that maintaining connections between indigenous parents and their children is particularly important today – especially in light of the dark history of colonialism in Canada, of residential schools, the sixties scoop and other dark moments in the historic relationship between settlers and indigenous peoples of Canada.

The lasting harms that this history and this system has created for Indigenous people, families and communities, and the residual systemic problems that continue to exist in the larger Canadian society. [ 11 ] The Director bears the evidentiary onus in these applications. The Director must prove that the child, MB, is in need of intervention as that phrase is defined in the CYFEA. Should the Director fail to discharge that onus, MB must be returned to his mother. IV. A

Summary of Relevant Facts [ 12 ] I heard evidence over several days and heard many witnesses. The relevant facts are as follows. [ 13 ] Ms. B is an Indigenous woman and has a long history with Children Services. She was apprehended as a child and lived for a time as a ward of the state, living at times in group homes and in foster homes. Ms. B suffered mistreatment at different times during her childhood and some of the mistreatment happened when she was in the care of Children Services.

[ 14 ] Ms. B has had interaction with Children Services as an adult. Children Services was involved in another jurisdiction while Ms. B was raising two other children, now both adults. One of these children testified during the trial in support of her mother. The Director has also had significant interaction with Ms. B and the kids in recent years here in Edmonton. [ 15 ] Prior to the apprehension of the children in May of 2020, Ms. B had been engaged with the Director. She and the family were receiving some services.

The family had also been identified by the Edmonton Police Service (“EPS”)as a family who might benefit from connection and EPS members had been informally involved building relationships with the family. Ms. B had been seeking support for her children, particularly for TB, who was displaying disruptive and aggressive behaviors that were increasingly difficult for her to manage. [ 16 ] COVID hit Edmonton in March of 2020. The City was brought to a standstill as isolation measures were enacted. Services and supports available to many vulnerable families were interrupted during this time and Ms.

B’s connections with the Director were impacted significantly. [ 17 ] In May of 2020 an incident was reported to EPS and officers attended the home. There had been a physical altercation between Ms. B and TB. TB was taken to the hospital and Ms. B was charged with assault. TB sustained a laceration to his head and was taken to hospital. The injury was not serious and he was released from the hospital after a few hours. Ms. B was taken into custody, was charged with assault and was released.

MB was in the home during the incident and witnessed the assault though he sustained no physical injuries. [ 18 ] The Director, considering this incident and considering the context of other recent and less recent interactions with the mother, concluded that the children were not safe in their mother’s care. The Director sought and received an apprehension order for both children. [ 19 ] The Mother entered a peace bond to resolve the criminal charges and its terms restricted her contact with TB.

As mentioned earlier, TB did not see his mother from the time of this incident until the trial. [ 20 ] After the apprehension, there were times when Ms. B and the Director were able to work together reasonably well. However, much of the relationship between Ms. B and the Director’s agents was not good. There was a lot of conflict. The conflicts arose over the mother’s concerns about the wellbeing of the children, over services that should or should not be extended, over placement issues and generally about the care the children were receiving.

The mother regularly became escalated and some of the conflict between mom and the Director happened on visits when MB was there. MB became upset when his mother fought with the visit supervisor or other person and then MB would sometimes then refuse to visit with his mother for a time. The Director imposed visit guidelines and made other directions to the mother after incidents of escalated behavior and these guidelines and restrictions were a further cause of conflict between the mother and the Director.

MB did continue to see his mother for the most part though, and many of these visits went well. [ 21 ] To be clear, Ms. B’s behavior was very, very problematic at times. The conflicts with caseworkers, casework supervisors and others included menace and threats (“I know where you live”) and awful, often sexualized or racialized attacks and insults. The conflict often resulted in workers being removed from the file and created disruption for the kids. Ms. B brought her complaints to the level of the Minister and the file came to be monitored by senior officials in the Director’s office.

The relationship between Ms. B and the Director continued to deteriorate and by the time of the trial the mother refused to work with and refused to communicate with any person connected to the Director – even engaging in an aggressive verbal confrontation with a respected pediatrician engaged to assess and to help MB.

The conflicts caused obstacles for the children in securing proper medical and mental health care and was, at least in part, the reason why case workers and visit supervisors were changed often, creating disruption in MB’s care. [ 22 ] When this trial started, I was advised that MB did not want to return to his mother’s care, though at the end of the trial MB advised, through counsel, that he did want to return to mom. [ 23 ] Ms. B attended every day of the trial. She was self-represented. Ms. B became dysregulated often during the trial and admitted that she had trouble with emotional regulation.

She said that she was particularly triggered by some of the witnesses called at the trial as these were workers she had dealt with over the last three years, and often people she had considerable conflict with. [ 24 ] Ms. B described that she had particular concerns about the care MB was receiving in his group home and about his vulnerability in that setting. “I was in a group home,” she said. “I know what goes on there.” Ms. B was very upset and scared for MB and said that her escalated behavior often arose from these worries and concerns. [ 25 ] Ms.

B also said that the Director often made promises during meetings she had and that the Director failed to follow through on many of the promises made, that the Director was unable to deal with her in a culturally appropriate and trauma-informed way – and that this exacerbated her emotional upset when dealing with the Director. In the end, she said that it had become impossible for her to work with the Director’s agents and that she had difficulty remaining regulated while dealing with persons connected to the Director. [ 26 ] Ms.

B had undergone parenting and psychological assessments at least twice prior to the most recent apprehension. She had been asked to undergo another such assessment after the apprehension and was advised that the completion of the assessment would require over a dozen attendances at the psychologist’s office. Ms. B declined. [ 27 ] The earlier assessments say that Ms. B suffers from PTSD. A psychologist, Dr. Pei, described that Ms. B’s PTSD likely arose from childhood mistreatment and was perhaps aggravated by a head injury the mother said she had sustained as a child. PTSD causes Ms.

B to struggle with anxiety and depression, to struggle with emotional regulation, to have difficulty trusting others, and to experiences hypervigilance, being especially attuned to sensing danger and feelings of unsafety in her environment. Suspicion and hypervigilance can feed the emotional dysregulation and the emotional dysregulation, can prevent a person from being able to access higher cognitive functioning when escalated. [ 28 ] Ms. B has taken many courses and programs in recent years to address her challenges with emotional regulation and other symptoms of PTSD.

She has taken classes in parenting, in anger management, in managing trauma, and participated in dozens of one-on-

one counselling sessions with different mental health professionals working on insight and on skills to assist emotional regulation and other life skills. Many of these supports were secured by Ms. B on her own. The Director was aware of some of the steps taken, but not all of them. [ 29 ] I note that Dr. Pei was engaged a second time prior to trial to re-assess Ms. B and reported that her cognitive capacity had improved significantly from the time of the last test and that she scored in the average range of cognitive functioning.

It appears that the courses, therapy and counselling are having some positive effects. [ 30 ] I find on the evidence that there were some failures in the Director’s provision of services to the children and in its ability to consistently engage Ms. B in a culturally appropriate and trauma-informed way. I find though that these failures and imperfections did not rise to the level that Ms. B perceived. In particular, I was struck by the empathy and genuine concern expressed by many of the Director’s witnesses – people engaged to help this family and without malice or bad intentions.

It is regrettable that the situation got so very unworkable. [ 31 ] I find on the evidence that the deterioration of the relationship between Ms. B and the Director was due in part to the PTSD that Ms. B suffered and the various psychological challenges that PTSD presents. The poor relationship was also in part due to various failures of the Director. It is also very unfortunate that this matter took over three years to get to trial.

Without any trial to hear and properly weigh the evidence, the parties can get even further enmeshed in conflict and it seems that this was an aggravating factor here. [ 32 ] Further, these relationship difficulties do not exist in a vacuum. The historic and systemic realities of the troubled relationship between Indigenous peoples and the Child Protection system in Canada has created an antagonistic culture that has yet to be adequately redressed. It is an unavoidable conclusion that this larger contextual struggle informs the challenge and antagonism that exists here between Ms. B and the Director’s employees.

V. Analysis [ 33 ] As mentioned above, the test applicable here is that of whether the child MB is in need of intervention. The Director bears the onus of proof. I note here, as I observed at trial, that the relationship between Ms. B and the Director has deteriorated to the point where they cannot communicate effectively. This makes for a fairly stark situation as a TGO is not an option that can be expected to be workable here – things are just too broken at this point in the relationships.

Perhaps this dynamic might change in the future, but for now my only reasonable choices are PGO or return of the child to the mother. [ 34 ] It was the incident of May 2020 that led to the apprehension and that got us where we are today. This incident was the only incident of physical violence. I did not hear evidence of any other incidents involving the children and none involving the mother being physically violent with any other persons. Violence need not be physical to be deeply damaging.

The psychological and emotional consequence can be dire when a child is made to feel unsafe because they have witnessed violence in their family. Further, Ms. B’s conduct before and after the apprehension has elements that are so explosive, irrational, and confrontational that they create a concern that physical violence is a real possibility. The Director’s concern here is not entirely without reasonable cause. [ 35 ] The evidence also raises a concern that Ms. B has demonstrated that she can be unable to create working relationships with people in authority and with professionals.

Parents of children will often have to seek support for the kids – MB struggles with ADHD and may experience other challenges in the future. An ability to establish working relationships with professionals will be important as will maintaining good relationships with teachers, coaches, and other folks. There is a concern that Ms. B will be unable to ensure that MB has the necessities of life – and so a concern that MB is in need of intervention for this reason.

Again, this conduct is again such that the Director’s concerns are not entirely without reasonable cause. [ 36 ] On the other hand, however, I note that Ms. B has taken many, many steps to improve her mental health. Dr. Pei testified that PTSD is a condition that can be managed with proper care, support and attention. The courses, programs and many, many hours of counselling and therapy demonstrate to me that Ms. B is committed to becoming a mother who can maintain her emotional regulation and who can properly attend to MB’s needs and that Ms.

B has demonstrated a commitment to this work. [ 37 ] I also note that nearly all of the conflict that I heard about during the trial was conflict between Ms. B and employees of the Director. I do not minimize the concern that this conduct can reasonably raise for the Director, and understand that this conduct can made it difficult for the Director to assess the situation and to provide services and supports appropriate in the circumstances. [ 38 ] However, the conflict seems quite targeted here and focused on the Director. The realities of Ms.

B’s personal history, her PTSD, and the larger historic context that I mentioned earlier make it unsurprising perhaps – unacceptable and problematic to be sure – but unsurprising that there is irresolvable conflict now between Ms. B, the Director, its employees and any professional connected to the Director’s work and operation. [ 39 ] It is not necessarily the case that this conflict and animosity will arise every time Ms. B is interacting with professionals and others necessary for MB or for herself. Indeed, Ms.

B has successfully created and has maintained her own relationships with supports – therapists and counsellors being an example – supports independent of the Director – and it is not unreasonable to expect that Ms. B can continue to find her own supports, independent of the Director, and that she can and will be successful in doing so. It would be unfair and improper for me to conclude that the conflict demonstrated here will necessarily arise in every relationship.

The Director has not proven that, and it is not an unavoidable conclusion. [ 40 ] It is also important to keep in mind that conflict between a guardian and the Director and refusal to cooperate – particularly before there has been a finding made that a child is in need of intervention – cannot itself be a reason to justify keeping a child from its guardian. The CYFEA does not identify refusal of a guardian to cooperate, and does not identify conflict, mistrust, hatred or antagonism harbored by a guardian against the Director, as grounds for determining a child is in need of intervention – nor should it.

[ 41 ] Ms. B has secured a place to live – not a perfect place by her own admission – but good enough for now – and she has said that it will be possible to make better arrangements once the return of MB has been confirmed. I believe her in this regard. [ 42 ] In conclusion, I find that the Director has not proven that the child, MB, is in need of intervention. In particular, the Director has not proven that MB is in danger of being physically harmed by his mother, and neither has the Director proven that Ms.

B is unable to provide the necessaries of life for MB. [ 43 ] For all of these reasons, the Director’s application for TGO, and in the alternative, for PGO in respect of the child MB are dismissed; the initial custody order is terminated effective immediately in respect of that child, and MB is to be returned to his mother. As I have already said, the Director’s application for PGO is granted for TB and access to Ms. B will be at the discretion of the Director and in consultation with TB.

I do direct that as a condition to TB’s PGO that the Director make efforts to ensure that TB and his brother, MB have regular contact with each other. Oral Decision rendered on the 12 th day of September, 2023. Dated at the City of Edmonton, Alberta this 21 st day of September, 2023. J.C. Lloyd A Justice of the Alberta Court of Justice Appearances: V. Pillay for the Director Self-Represented for the Mother C. Turner for the Child, MB G. O’Laughlin for the Child, TB