QSM (Re), 2023 ABCJ 222

In the Alberta Court of Justice Citation: QSM (Re), 2023 ABCJ 222 Date: 20231027 Docket: CP021000830;FF021002915 Registry: Grande Prairie In the Matter of the Child, Youth and Family Enhancement Act, and In the Matter of QSM 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 D.R. Shynkar Assistant Chief Justice Introduction [ 1 ] The Director has applied for a Permanent Guardianship Order under the Child, Youth and Family Enhancement Act (the “CYFEA”) with respect to QSM, 22 months old.

QSM has been in the Director’s care since his apprehension in April of 2022, 510 days as of the first day of trial. An Initial Custody Order was issued May 24 th , 2022.

The legislation permits of the following possible outcomes: a Permanent Guardianship Order, a Temporary Guardianship Order under section 33(3), a Supervision Order, or no Order (which would result in the child’s return to his parents). [ 2 ] QSM’s apprehension and the subsequent Initial Custody Order were on the basis that he was in need of intervention because there were reasonable and probable grounds to believe that his safety, security or development were endangered by a substantial risk that he would be physically or emotionally injured by a guardian, or that a guardian was unable or unwilling to protect him from such injury.

The Director’s central concern has been the mother’s ability or inability to regulate her emotional responses, and her behaviour at times when those responses lack regulation; the Director has not been satisfied that the father, who now lives apart from the mother, could effectively protect the child. [ 3 ] The Director’s application was heard concurrently with a Family Law Act parenting application brought by the mother. At the close of the evidence, counsel for the parents presented a Consent Parenting Order.

While the formal Order remains to be drafted by one counsel and approved as to form and content by the other, it provides for a shared parenting arrangement by which the child resides for half the week with each parent, with some additional provisions regarding supervisory support and assistance for the mother while the child is in her care, as well as directions for the mother’s ongoing interaction with community supports and health care professionals. [ 4 ] The Consent Parenting Order did not alleviate the Director’s concerns, and the Director’s counsel was instructed to continue to advocate for a Permanent Guardianship Order; counsel for the child concurred.

Counsel for the parents each advanced arguments for immediate return of the child (no CYFEA Order), or alternatively, a Supervision Order. Nature of the Evidence [ 5 ] I heard the evidence of the current caseworker, as well as of Ashley Sabados, who was qualified to provide opinion evidence “in conducting parenting capacity assessments, interpreting results, as well as recommendations flowing from those assessments.” Ms.

Sabados conducted a parenting capacity assessment of the mother, and her report was entered as an exhibit. [ 6 ] I also heard the evidence of the parents, and of the paternal grandmother.

I permitted various certificates and pieces of correspondence to be marked as exhibits, and therefore considered in evidence, with the stipulation that the evidentiary weight to be attributed to them might well be very little if their authors were not presented for cross-examination. [ 7 ] Many of these items are of little consequence beyond confirming that the mother or father actually attended or completed programming or a consultation of one kind or another, the approximate number of such attendances in some cases, and generally, whether the attendances appeared to be productive in some fashion.

In relation to each, the testimony of the relevant party is of considerably more consequence than the document purporting to support that testimony, and the accuracy of the documents is not heavily relied upon in this decision. [ 8 ] For example, the father presented a form suggesting confirmation of an attendance he described as “intake” or “assessment” for addiction, while the form itself refers to a “counselling appointment.” I accept his representation of the nature of the appointment, what he was told (that further contact in relation to addiction appeared unnecessary), and that when he asked for a signed document he could use as proof of attendance, he was grudgingly provided with the document he then presented to the Court (a pre-printed form with an “X” beside “Counselling appointment on [date],” and other pre-printed portions which are clearly inapplicable). [ 9 ] As usual in child protection proceedings, there was also a fair amount of hearsay evidence presented by the Director.

This included descriptions of what third parties reported to the caseworker, or to the previous caseworker, and observations made by the previous caseworker. The usual “affidavit of circumstances” was marked as an exhibit, but I recognize the frailties of the hearsay evidence it contains, just as I do the hearsay evidence from time to time referenced by witnesses in their testimony.

I assign the greatest evidentiary weight to oral testimony in the course of direct and cross examination, covering matters personally experienced or observed the witnesses, although I do not discount the hearsay evidence presented, particularly where it appears to raise legitimate concerns for the well-being of QSM.

Onus or Burden of Proof [ 10 ] While the burden of proof appears to shift back and forth during the course of such proceedings, it is ultimately the Director’s obligation to satisfy the Court that QSM is in need of intervention, that his safety, security or development cannot adequately be protected if he is returned to his parents, and that it cannot be anticipated that he could or should be returned to the custody of his parents within a reasonable time. The Court must be satisfied in relation to all three of those things if a Permanent Guardianship Order is to be granted.

The Evidence [ 11 ] The parents met and began a relationship as teenagers. They are now 20 and not together. The mother lives on her own; the father currently lives with his mother while he attempts to arrange for other accommodation. The mother has some sporadic employment and is working to secure more stable employment as well as to further her education.

The father has stable and financially productive employment. [ 12 ] The mother has a long history of emotional/behavioural difficulties which might best be generally referenced as anxiety and depression coupled with, or related to, significant difficulties with emotional regulation. I do not propose those labels as diagnoses, but simply a general description of the issues. In short, from time to time the mother becomes excessively distraught and unable to manage her emotions, resulting in erratic or exaggerated speech and behaviour.

To those around her at such times, she appears to have lost control of her emotions entirely, and essentially, to be having a tantrum. Descriptions of the most pronounced of these behaviours include her sitting on the floor, crying inconsolably, pulling her hair, hitting herself, slamming or hitting objects, and assertions of inability and low self worth. She is often rude and unreasonable at such times.

The concern is that she may unintentionally hurt QSM during such an episode, or be dangerously oblivious to his needs, or that his merely observing her in such a state will be detrimental to his well-being. [ 13 ] The mother’s personal history provides important context for these observed behaviours. Her father has not been present in her life in any significant way since she was quite small. She was apprehended from her mother’s care due to alleged sexual abuse of her by her mother’s partner.

She spent time in a group home in Edmonton (which she found very difficult), after which she was assisted in beginning independent living at the age of 17. Her emotional outbursts created difficulties for her in school, and in her personal relationships, including her relationship with the father.

Her general history provides some explanation for her feelings of anxiety, her doubts about her abilities and self-worth, and her perception that she is often not being treated fairly or given the assistance she needs in a variety of ways. [ 14 ] While one might make the clichéd observation that “life isn’t fair,” it is not unreasonable of the mother to feel that she has not been treated fairly as a child or young adult in some very significant ways. She’s right: she hasn’t.

Having said that, the task at hand is neither to identify the unfairness’s nor to remedy them; it is to determine what is appropriate for QSM, even if that results in continuing unfairness for the mother. [ 15 ] There is further helpful context leading up to the apprehension of QSM shortly after his birth. The pregnancy was identified as “high risk,” due to apparent complications, which the mother described as QSM’s bowels being outside of his body. It was a significantly premature delivery.

Covid was still a major event; the mother tested positive and could not attend the Neonatal Intensive Care Unit for the first 10 days after QSM’s birth. One can reasonably surmise that the generalized level of stress and anxiety in health care facilities at the time was quite high, given the pressures imposed on the system and its workers, and on patients, by Covid. And the mother came to this with a history of anxiety and emotional dysregulation, as a teenaged, first-time mother with a high-risk pregnancy, fairly recently out on her own after leaving a group home.

[ 16 ] Nursing staff reported repeated episodes of the mother having emotional breakdowns, or tantrums, of being difficult and rude, and of expressing in various pointed ways that she doubted her ability to care for a child, as well as expressions of potential self-harm. While rules were put in place in an attempt to deal with these behaviours, a “Form 10” was also issued under the Mental Health Act to allow for a non-consensual psychiatric assessment of the mother (although she was not admitted for mental health care).

The father, meanwhile, did not appear to be overly concerned with the mother’s behaviour, and apparently expressed that the plan was for the mother to be at home caring for QSM while he worked. The health care staff relayed information to Child and Family Services staff, who investigated, shared the concerns of health care staff relating to the safety of QSM, and sought an apprehension Order. [ 17 ] The mother’s version of events is, unsurprisingly, that she was operating at an intolerable level of stress and simply unable to cope, or coping as best she could in the circumstances.

And that she felt she did not have the help she required. For example, she testified that at one point she went to see the social worker at the hospital, who told her to rely on her supports (who were many miles away in Grande Prairie), obtain counselling (which she could not afford), or go to the emergency department (which she did, but went back to her hotel room upon being told it would be a 16 hour wait to see a mental health professional). [ 18 ] It is reasonable to surmise that having her baby apprehended and placed in foster care did little to reduce the mother’s anxiety.

Her emotional dysregulation continued, with the caseworkers recording multiple instances of her exhibiting tantrum-like behaviour more commonly observed in very young children.

There was an ongoing concern for her apparent lack of self-control during such times putting QSM at risk, whether by her inadvertently harming him, or by her being dangerously unaware of his needs, or by his mere proximity to and observation of her. [ 19 ] Notwithstanding the very concerning outbursts of the mother, she engaged on a continual basis with her caseworkers, was available for access periods arranged for her, and engaged in a variety of programming as directed.

She also engaged in counselling/therapy/programming of her own; in her evidence, she expressed a desire and an intention to take some of the courses again in the future.

She was at times difficult and demanding: for example, she refused to accept the services of a local organisation providing access supervision, so other arrangements had to be made; she was from time to time rude, impatient, and unreasonable in her dealings with the caseworkers. [ 20 ] Notwithstanding these challenges, the efforts of the parents and the caseworkers resulted in a gradual increase in parental visits, first supervised, then unsupervised, and then overnight. Most recently, the parental access had developed to the point that QSM was cared for by each parent for half a week at a time.

Concerns continued, but clearly the caseworkers felt a reunification of the child with his parents could be effectively managed and pursued.

And then came “the incident.” [ 21 ] On September 20 th 2023, the Director received an anonymous report from someone in the community that the mother was “loud, swearing, and very upset,” “not treating her child well,” that she was seen picking up QSM by the back of his sweater and carrying him “like a duffle bag,” and that she had said to him, “Get the hell over here,” and “Jesus Christ, why can’t you listen.” QSM was retrieved by caseworkers and placed with the foster parents for the remainder of the mother’s visitation time for that week.

Unsurprisingly, the mother’s reaction to this interruption to her parenting time came in the form of emotional dysregulation observed by the caseworker, including crying, swearing, and expressions of despair/inability. [ 22 ] The mother’s version of events is that she went to the local college to register, expecting a particular worker to be there to assist her. QSM was with her, as it was her portion of the week. When she discovered that the worker she expected was unavailable, she decided to proceed anyway, and then found the process confusing, and the available staff remarkably unhelpful.

Over the course of what she felt was a couple of hours, she became frustrated and angry, and very likely rude, while trying to register, obtain information, and keep track of her 20-month-old child. One imagines the staff attempting to assist her were offended and frustrated themselves. At one point, she needed to make some phone calls about finances, and went to sit down to do that; QSM followed her. When he saw that she was just going to sit down, QSM did what children that age often do when they have had enough of boring situations: he ran away from her.

That led to the swearing, the grab, the “duffle-bag carry,” and her carting him back to the seating area under her arm “like a haybale” (which she noted he likes). She made some phone calls, took QSM to the park, and then they went home for lunch and QSM’s nap.

Shortly after that, she received a call from the caseworker to the effect that QSM would be retrieved, and that happened 20 minutes later. [ 23 ] Much was made of the mother’s failure to connect with her supports during the incident, in order to assist with her emotional regulation, as well as that she did not advise the father, or his mother, of what had transpired, including that QSM had been removed from her care. In the course of the caseworker’s attempts to address the incident with her and modify her safety plan, she was distraught, angry, and argumentative.

The mother’s side of this is that she found it enormously difficult to understand what exactly she had done so wrong that merited the abrupt removal of QSM from her care; she clearly felt her frustration with the staff was justified, and that her handling of QSM was not vastly inappropriate. [ 24 ] Here again is an example of the challenges faced by caseworkers, and by the court: hearsay reports of events cannot simply be ignored, and yet they can be difficult to properly assess.

The anonymous reporter could not give evidence or be cross-examined without abandoning her anonymity, but that leads to that evidence being regarded with some suspicion, even acknowledging that the mother’s evidence might be expected to downplay or minimize the events in question. But she was present for examination and cross-examination on that scenario. [ 25 ] The mother admittedly opined, during her discussions of the incident with the caseworker, that if she wasn’t allowed to have her half-week parenting time with the child, then the father shouldn’t either. That was admittedly childish.

But nothing much turns on that; it is just another example of the mother making unreasonable comments while upset, and it is entirely consistent with her apparent acute sensitivity to any perception that she is being treated unfairly in relation to others. [ 26 ] The available support networks of both parents were expressed as a concern for the Director repeatedly over the course of the last many months, and during the course of the trial and argument.

The observations made included there being too few family or other supports, identified supports not attending meetings, and identified supports not attending as witnesses. The father’s mother did attend, and while her evidence was brief, it appeared to reassure counsel for the Director and counsel for the child somewhat; at the end of the day, the focus is squarely on the mother, her ability to self-regulate, and the supports available to her.

[ 27 ] One of the mother’s supports is a man she describes as her fiancé, who lives in New Zealand, and whom she was never met. I am disinclined to give his apparent support much weight, but at the same time, the mere fact that the mother apparently has a supportive person she can talk to at length is of some value. Admittedly, the other supports available to her are not extensive. Her mother attended the hearing, as did a community worker, to provide emotional support by their presence.

The mother’s relationship with her own mother has been difficult, which might well impair the level of support that she can or will provide (or will be permitted by the mother to provide). That those two supports attended is something, notwithstanding that they were not called as witnesses (I accept that the mother chose not to call her mother as a witness, for fear of “a bunch of irrelevant stuff being brought up,” presumably in relation to her personal history as a child). [ 28 ] Not everyone is blessed with significant and abundant family and friend supports.

There are plenty of individuals, parents or otherwise, who struggle to develop supportive friendships, whose family members are far away, non-existent, or emotionally distant for whatever reason. What can reasonably be expected of someone in such a situation who requires additional support is simply that they make concerted efforts to seek it out, particularly in relation to community supports provided by local organisations, professional or otherwise. I am satisfied on the evidence that the mother is not at all ignoring this important task and has been reasonably diligent at it.

I recognize also that her behaviour from time to time may make it particularly difficult for her to develop and maintain supports, as some supporters may well become impatient with those behaviours. [ 29 ] I am not overly concerned with the parents’ cannabis use. It is described by both of them as minimal, and their contacts with addiction counsellors essentially resulted in them each understanding that there was not a need to pursue treatment or counselling. They both clearly understand they cannot be intoxicated as caregivers of a child.

As I commented to the mother during the course of argument, however, there is some evidence that she is vulnerable to addiction, the extent to which cannabis use may improve or exacerbate anxiety for users appears to be unclear, and drug interactions may similarly be something of a question mark. I accept her evidence that she has told her prescribing physicians of her cannabis use.

There was evidence that the parents had at some point in the past used psychedelic mushrooms together, but no indication of continued use. [ 30 ] The mother was challenged on the nature of the medication she has been prescribed, the frequency with which she will see her psychiatrist, and whether that physician really did tell her she could manipulate her dosage as she saw fit, within certain parameters.

I note that the mother has a family doctor (when many in this community do not), who is also QSM’s doctor, and a psychiatrist; I am not much surprised that it will be months before her next scheduled appointment with the latter, given the demand for such services, nor with her report that she has been permitted to modify the dosage of her medication within fixed parameters.

In the context of the current availability of medical services for Albertans (many of whom must rely on walk-in clinics or the local emergency department, in the absence of a physician willing to become their “family doctor”), I am not dissatisfied with the mother’s efforts to see that she and QSM have the medical supports they need. I am similarly satisfied with her efforts to find other supports available to her in the community, in the context of her inability to fund extensive therapy. [ 31 ] There are reports of each parent swearing when speaking to the child.

Many find that vastly inappropriate and offensive. However, children can be verbally abused without swearing, and one can communicate with a child without being abusive but nevertheless swearing. There are many people in this society whose speech is so laden with foul language that they are mostly unaware of it, and its use means nothing much to them, although it may offend those around them from time to time. For some, foul language is simply a habit of speech.

While employing foul language around young children is arguably inappropriate, I am disinclined to put much weight on the parents’ use of such language here. [ 32 ] As counsel for the child noted, affect and physical deportment of a parent interacting with a very young child are of more importance, as is the fashion in which foul language is used, which is to say whether it is directed at the child in an insulting or demeaning way.

For example, a report by the mother to the caseworker at one point that she shouted at the child, and he stopped crying is made at most marginally more significant by her shouting, “shut the fuck up,” rather than “please be quiet.” It was the shouting itself that was of consequence, the child having a limited experiential frame of reference to assign a particular value to the words used; in other words, one imagines that what is important to a very young child is that his mother has shouted at him. The mother was neither examined nor cross-examined on that particular incident.

If it occurred, it is concerning, but not vastly surprising in the context of a very young, first-time parent, and does not weigh heavily in favour of the child remaining in the care of the Director. [ 33 ] Giving evidence can be very stressful, and it is not uncommon for witnesses to have breakdowns to varying degrees, such that they burst into tears or are otherwise unable to continue. Sometimes they require a break to collect themselves, and sometimes they are simply incapable of continuing. At one point in her testimony, the mother took perhaps half a minute to collect herself, and then carried on.

While her testimony was certainly animated at times, there was nothing even close to the “meltdowns” described elsewhere in the evidence. That is somewhat reassuring, although it does not alleviate the concerns for her challenges in regulating her emotions and behaviour on an ongoing basis. [ 34 ] There was evidence that the mother’s household was observed to be in a state of clutter and disarray potentially dangerous to a toddler, and that this concern persisted over time.

There was also evidence, from both the mother and the caseworker, that the mother made significant efforts to address these concerns, and to see to it that her household is safe for her son. And the child was recently placed with her for half a week at a time. [ 35 ] The expert opinion evidence of Ms. Sabados was based primarily on interviewing the mother (so, self-reporting), a sizeable battery of psychological tests, and observations of her with QSM. While I recognize the limits inherent in the resulting written assessment and the oral testimony related to it, Ms. Sabados’ views carry significant weight.

At page 17 of her report, Ms. Sabados says this: “Regarding [the mother’s] parenting attitudes, capabilities and skills, there are no clinically significant risks of her engaging in neglectful or abusive parenting practices. However, a lack of a support network (which she reported), lack of a co-parent, and a feeling that she has to learn how to be a parent can result in [the mother] becoming overwhelmed with responsibilities, which could negatively impact her parenting abilities” [emphasis added]. [ 36 ] Ms.

Sabados’ recommendations for the mother include “regular and consistent individual therapy sessions,” building a strong

support network, setting up in-home support, further organizing her home environment, and generally providing a nurturing, supportive, loving, stable, and consistent environment. Counsel for the Director and the child appeared to interpret this as an opinion that QSM could only potentially be returned to the mother’s care at some unknown future time, and that the time required for the mother to follow these recommendations would be outside the time legislatively permitted. I disagree. [ 37 ] Ms. Sabados was of course not required to opine on the ultimate question here, and she refrained from doing so.

At page 18 of her report, she says this: “[the mother’s] understanding of child development and her parenting abilities seem to be satisfactory, and there was no indication that [the mother] has engaged or will engage in any negative parenting practices that would put [QSM] in harm’s way. Overall, [the mother] will most likely be able to meet QSM’s basic needs so long as she continues addressing her use of marijuana, continues with individual therapy and continues engaging in and utilizing the skills and strategies she learns though the programs and courses with The Family Education Society.

With appropriate continued support, such as practical skill development, in-home support, and long-term individual therapy, any risks could be reduced to a level where she could provide continued care and support for QSM.

By engaging in recommended supports and displaying the ability to utilize the skills and strategies for positive parenting practices on a long-term basis, [the mother] will be able to positively impact her parenting capacity and, in the long run, maintain her parenting capacity to remain at the “good enough standard.” However, this will require a great deal of determination and effort from [the mother], including external motivation, increasing her confidence in her ability to parent, remain free of substances, and remain absent from any domestic disharmony.” [ 38 ] As with her oral testimony, Ms.

Sabados’ comments might be interpreted to mean QSM can be returned to his mother’s care at some ill-defined time in the future, or considerably sooner than that, providing her recommendations are observed. Ms. Sabados’ report is dated March 23 rd , 2023. Subsequently, the parenting time has been expanded by the Director, culminating in the parents each having QSM for half a week at a time, which is something approaching an outright return.

And then there was “the incident.” [ 39 ] In permitting QSM to be in the care for his father for half a week at a time, and then in the care of his mother for half a week at a time, the Director evidently considered all of the information available, including Ms. Sabados’ report and recommendations, and determined that regime to be appropriate. It seems clear that the parties were jointly working toward a family reunification that would move QSM out of the Director’s care and into the care of his parents (albeit in separate households).

I am satisfied that approach was appropriate in the circumstances, notwithstanding that concerns continued to exist (the existence of concerns not being tantamount for a continuing need for a child to be in care). [ 40 ] I am not satisfied that what occurred in the September incident was of such consequence that it should derail the progress made to that point in family reunification. I note in passing that the following week, QSM was placed back in his mother’s care.

There is a disconnect between the Director’s argument that a Permanent Guardianship Order is now inescapable, and the Director’s recent approach to the parenting of QSM. Result [ 41 ] I am satisfied that QSM continues to be in need of intervention, due to the concerns noted. I am not satisfied that the Director has established that his safety, security, or development cannot adequately be protected if he is returned to his parents, and that it cannot be anticipated that he could or should be returned to the custody of his parents within a reasonable time.

I find that QSM can be returned to the custody of his parents at this time, subject to the terms of the Consent Parenting Order, and subject to the terms of a Supervision Order. [ 42 ] Pursuant to section 28(2) of the CYFEA, I will refrain from making a Supervision Order until the Director has had a reasonable opportunity to make recommendations as to its terms; in the interim, the Initial Custody Order remains in effect, such that QSM remains in the care of the Director.

Recommendations by the Director as to the terms of the Supervision Order may be made by correspondence to the Court, through the Judicial Assistants, with copies to all counsel. Counsel for the child and the parents will have 10 days from receipt of those recommendations to respond if they wish. I anticipate counsel for the Director being able to obtain instructions and present recommendations in that fashion within 10 days of receipt of these reasons. I do not anticipate the need for oral argument on the terms of the Supervision Order, but counsel may request that if any feel it is necessary.

Heard on the 16 th , 17 th , and 18 th , days of October 2023. Dated at the City of Grande Prairie, Alberta this 27 th day of October 2023 .

D.R. Shynkar A Justice of the Alberta Court of Justice Appearances: M. Robinson for the Applicant A. Ijomah for the father F. Olugbemi for the mother S. Channan for the child