LC v. BF, 2022 ABKB 785

Court of King’s Bench of Alberta Citation: LC v Alberta ( Child, Youth and Family Enhancement Act , Director), 2022 ABKB 785 Date: 20221128 Docket: FL13 02054 Registry: Fort McMurray Between: LC and BF Appellants - and - Alberta (Director Child, Youth and Family Enhancement Act) Respondent Restriction on Publication Identification Ban – See the Drug Endangered Children Act ,

section 5 and the Child, Youth and Family Enhancement Act ,

section 126.2 . No person shall publish the name or photograph of a child or of the child's parent or guardian in a manner that reveals that the child is receiving, or has received, intervention services. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Reasons for Decision of the Honourable Justice Peter Michalyshyn _______________________________________________________ Introduction

[ 1 ] This is an appeal from the determination at a Provincial Court trial in the matter of a Permanent Guardianship Order and the children BF, 6 and BF, 5 (“the Children”). [ 2 ] The trial was held on July 23, September 23, and October 1, 2021. The trial judge delivered her reasons orally on October 12, 2021. [ 3 ] The Children have been in care from the spring, 2018. There were delays in getting to trial, some related to Covid-19. There were delays too in getting to this appeal. None of the delays were caused by the Respondent. [ 4 ] The Appellants were each represented by counsel at the trial.

At one point in the appeal proceedings the Appellants were represented by counsel, but at the hearing of the appeal they were self-represented. [ 5 ] Counsel for the Children participated in the trial, and the appeal. [ 6 ] The record in the appeal consisted of voluminous transcripts of the trial, exhibits, and the trial judge’s oral reasons delivered on October 12, 2021, transcribed and filed March 18, 2022.

The parties also submitted the following materials in the appeal: for the Appellants, LC’s March 11, 2022 Affidavit in support of adducing fresh evidence, the March 18, 2022 Brief of the Respondent, the Appellant’s June 29, 2022 Brief, and the Respondent’s July 21, 2022 Supplementary Brief. Counsel for the Children filed no brief, but made submissions orally in the appeal. [ 7 ] For reasons which follow the appeal is dismissed.

Background [ 8 ] The transcript of the reasons of the trial judge are before me and are summarized accurately in the Respondent Brief filed March 18, 2022. [ 9 ] In brief, the children in this case have been involved with Children’s Services since June, 2017. The trial judge found that extensive efforts were made to support the family unit with the children remaining with their parents. However, owing to the parents’ ongoing difficulties including neglect of the children, in March, 2018 the children were taken into care.

Leading up to the 2021 trial, the Director concluded that an application for a Permanent Guardianship Order (PG)) was called for under s 34(1) of the Child, Youth and Family Enhancement Act, RSA 2000, c C-12 . By that time the children had been in care for more than 1,200 days. [ 10 ] The trial judge accepted certain facts put forward by the Appellants.

These included that they have stable housing, are adequately supported financially, have not been actively abusing substances, have taken steps to address their parenting and addiction issues, have various family and community supports, and say they are willing to work with the child protection office and social workers where the children are now in foster care. [ 11 ] The trial judge found however that these sympathetic facts do not tell the whole, or even the most important part of the story of the parents’ ability to care for and protect the children. [ 12 ] The trial judge found for example that while the parents’ then-current housing and income were compatible with parenting the children, both parents testified at trial that they could not wait to leave their current community.

The trial judge found as a fact that such was indeed the parents’ intention. And as such, the trial judge found that going forward, the parents had no plan for housing or a support system where ever they would choose to relocate. [ 13 ] There was no clear-cut evidence before the trial that the parents had completed parenting courses or had a safety plan or any relapse prevention plan. [ 14 ] The trial judge found that while the parents had a support system, it was not a strong one. [ 15 ] The trial judge found as a fact on the evidence that Band support was present, but minimal.

It was noted that while given an opportunity to do so, the Band did not participate formally in the proceedings. The trial judge found that initially the Band took the position it was in support of the PGO. While that initial position was put in some doubt, the trial judge found as a fact that on the evidence the support the Band was prepared to offer the parents was insufficient to address any serious concerns. [ 16 ] The trial judge considered the evidence of the maternal grandmother and of a friend of the mother.

While she found this evidence was given sincerely, the trial judge concluded that neither individual would be an appropriate or sufficient support for the parents on a ‘with children’ scenario. [ 17 ] After considering this evidence, the trial judge concluded: I find the evidence is clear that the parents here would not be capable of providing the children with even “good enough” parenting at the present time. The children are still very young and have suffered significant upheaval in recent times. There would be major inherent challenges in their return to the parents’ care.

It is clear from the parents’ own testimony that they have absolutely no appreciation of this fact. [ 18 ] The trial judge expanded on this conclusion in her reasons by making clear-cut findings of credibility adverse to the parents. These findings are set out in detail at pp 7-9 of the October 12, 2021 transcript of the trial judge’s reasons. [ 19 ] Based on all the evidence, including her credibility assessment, the trial judge concluded that the parents had no actual, workable plan in place to ensure they can safely and effectively parent the children.

The trial judge rejected the parents’ contention that whatever failings occurred in the past, they were ready now to parent the children. The trial judge concluded that these assurances by the

parents were unfounded and unreliable. The trial judge concluded: Sadly, we are at the point where the parents would say anything they thought would result in me dismissing the Director’s application, orthat would result in a supervision order, but their past behaviour and current testimony leads me to conclude they are simply incapable offollowing through on any of their promises.

There is simply no possibility of putting in place a plan ensuring the safety and security ofthe children that the parents would actually be able to follow. [20] In reaching this conclusion, the trial judge specifically took into account the evidence at trial of the childrens’ indigenousbackground, and the non-indigenous background of the foster home in a community outside the judicial centre of Fort McMurray. Thetrial judge also specifically took into account the likelihood that in all of the circumstances it was unlikely the children would be reunitedwith their parents in the foreseeable future.

Nevertheless, after taking into account ss 2 and 34 of the Act, the trial judge found the bestinterests of the children lay with the Permanent Guardianship Order.

Standard of review [21] All parties rely on M(Red) v Director of Child Welfare, 1986 ABQB 138 for the proposition that the trial outcome should bedisturbed unless the trial judge clearly acted on some wrong principle or disregarded significant material evidence, or her final decisionwas otherwise clearly wrong. [22] More recent authority is NEW v MADM, 2022 ABCA 255, at para 9 citing Barendregt v Grebliunas, 2022 SCC 22: [9] Barendregt v Grebliunas 2022 SCC 22 reaffirmed that the scope of appellate review in family cases is narrow, stating atparas 100, 103 and 104: [100] The scope of appellate review in family law cases is narrow: Van de Perre, at para. 11.

Determining a child's best interests isalways a fact-specific and highly discretionary determination: Van de Perre, at para. 9. And as Gonthier J. observed, "Courts of Appealshould be highly reluctant to interfere with the exercise of a trial judge's discretion": Elsom v. Elsom, (SCC), [1989] 1S.C.R. 1367, at p. 1374 …. [103] Therefore, an appellate court may only intervene where there is a material error, a serious misapprehension of the evidence, or anerror in law: Hickey v.

Hickey, (SCC), [1999] 2 S.C.R. 518, at para. 12; Van de Perre, at para. 11. [104] Absent an error of law or a palpable and overriding error of fact, deference is vital: Housen, at paras. 8, 10, 36 and 39. Appellatecourts must review a trial judge's reasons generously and as a whole, bearing in mind the presumption that trial judges know the law:G.F., at para. 79. As I have explained, an appeal is not a litigant's opportunity for a "second kick at the can", especially in parenting caseswhere finality is of paramount importance: Van de Perre, at para. 13.

Issues on appeal [23] Other than to object to errors of “mixed facts and mixed law (That the learned trial judge misapprehended the facts and madeerrors of law)”, the parents’ grounds of appeal were not articulated in their initial materials. Their grounds crystallized to some extent intheir Brief filed June 29, 2022. [24] The Appellants object to the trial judge’s treatment of hearsay.

This objection is dealt with summarily by the Respondent whonotes that s 108(4) of Act specifically allows the court to accept hearsay evidence. [25] The Appellants object to findings made by the trial judge which they say are not supported by the evidence. [26] I find little support for this contention in the materials submitted by the Appellants, or in their oral submissions. To thecontrary, I find that as argued and illustrated by the Respondent, the trial judge made findings based on all of the evidence including herassessment of the reliability and credibility of the evidence.

I find that the trial judge did not misapprehend or disregard significantmaterial evidence. [27] The Appellants argue a host of alleged errors or misunderstandings by the trial judge – but I agree with the Respondent thateven if the trial judge was in error on minor points in the extensive evidence at trial, there is no reason to conclude that these allegeddiscrepancies – taken alongside the entire record before the court – would have changed the outcome.

In other words, there is no reasonto conclude that any such alleged discrepancies were significant or material, or that they contribute to a finding that the trial judge’sdecision was clearly wrong. [28] The Appellants alleged bias on the part of the trial judge. This allegation is entirely without foundation and fails: SM vAlberta (Child, Youth and Family Enhancement Act, Director), 2019 ABQB 972 at paras 207-216. [29] The Appellants allege negligence on the part of their counsel.

This allegation too is without foundation and fails. [30] Complicating an appreciation of the Appellant’s cause is the fact that their June 29, 2022 Brief in particular – but also theiroral submissions in the appeal – are unreliable in that neither accurately set out the trial evidence. It must be said that this appeal – aswas evidently the case at trial as found by the trial judge – was complicated by what counsel for the Director accurately characterized aswritten and oral submissions of the Appellants that were at times “untrue, exaggerated, or misconstrued”.

I am also mindful of and agreewith the oral and written submissions of counsel for the Children regarding the nature and quality of the written and oral submission of

the Appellants. [31] The Appellants sought to introduce new evidence. [32] The test to admit new evidence is commonly referred to as the “Palmer test” (Palmer v The Queen (SCC),[1980] 1 SCR 759). The four factors that the Court will consider are: (

a) whether the evidence, by due diligence, could have been introduced at trial, (

b) whether the evidence is relevant in the sense that it related to a decisive or potentially decisive issue in the case, (

c) whether the evidence is credible in the sense that it is reasonably capable of belief, and (

d) whether the evidence, if believed, could reasonably, when taken with other evidence introduced, be expected to have affected theresult. [33] I agree with the Respondent’s submissions as set out at paragraphs 30-41 of its July 21, 2022 Brief, and paras 35-45 of itsMarch 18, 2022 Brief, that fundamentally, none of the arguably fresh evidence passes the Palmer considerations at subparagraphs (b)and (d), above. [34] Keeping in mind that the evidence at trial was heard on July 23 and September 23, 2021, the Appellants point to the followingas new evidence to be considered on appeal: - September 22, 2021 letter, not signed, but attributed to one Nadine Dalheim, Manager of Addictions and Mental HealthServices/Family Support Centre, Fort McKay First Nation.

In my view, this letter is not material in that it generally speaks to the supports available to the Appellants and to their willingness toengage in or with those supports, and with regard to the children says no more than: “It is the goal of the Nation to ensure that Fort McKay First Nation children remain within their family and community, if it is in the bestinterest of the child/children”. - September 30, 2021 letter, not signed, attributed to one Denise Wilkinson, Director of Health and Senior Services, Fort McKayFirst Nation.

The letter is dated after the close of evidence but before argument was heard on October 1, 2021.

The letter is mostly of ageneral nature, but says – specific to the Appellants: o That the author wishes to “clarify a misrepresentation of Fort McKay First Nation’s position presented in the affidavit” but noinformation is provided regarding “the affidavit” o The author states “Fort McKay First Nation does not support a PGO for this family” o The author further states “A family like L, B, and their children are better served and supported by accessible, culturally-relevant,holistic, wrap-around programs and services in their home community.

Since June 2021, both L and B have availed of all resources andsupports available to and offered to them.” In my view, this proposed new evidence does not pass the Palmer test owing to the fact there is no indication the author is at allinformed about other factors relevant and material to the best interests of the children generally, or what other evidence was in thebalance before the trial judge.

It is not evidence which “...if believed, could reasonably, when taken with other evidence introduced, beexpected to have affected the result.” - September 21, 2021 letter signed by Najwa Karamujic, who identifies herself as the Band Designate of the Chipewyan PrairieFirst Nation.

The letter states: o That she has been working with LC for approximately a year o That “based on the current application it is my professional opinion that the PGO application requirements be rejected and the Childand Family Services department relook at this application and present to the courts an alternative plan for these children” Again, in my view this proposed new evidence fails the Palmer test for the same reasons just stated. - There are additional letters in support of the mother – the father is not mentioned in any of them, from Wendy Desjarlais(November 23, 2020), Kirby Cardinal (November 19, 2020), Ingrid Jensen (November 6, 2020), and Samantha Power (September 10,2021) Again, in my view these letters fail the Palmer test for the same reasons just stated. - January 14, 2022 letter signed by the Chief and several council members of Fort McKay First Nation, supporting the Appellantsbut not commenting on the specific circumstances surrounding the children or what is, one the whole, in their best interests.

Again, in my view these letters fail the Palmer test for the same reasons just stated. Analysis [35] Keeping in mind that the Appellants are self-represented, still it is difficult to see any error of law identified in their materials

or in oral argument. At its strongest, the Appellants argue little more than that the trial judge made the wrong decision, and exercised her discretion improperly. As noted, such arguments are subject to a stringent standard of review that seeks a material error, or a serious misapprehension of the evidence. [ 36 ] As to arguable errors of fact, they must meet the equally stringent test of “palpable and overriding error”. Again, it is hard to see any error of fact identified in the Appellant’s materials or in oral argument. [ 37 ] I find that the trial Judge committed no error in balancing the best interests of the children, including her consideration of factors listed in s 2(

e) of the Act . [ 38 ] Again, the weight to be given to all relevant factors is a matter of discretion: Van de Perre v Edwards , 2001 SCC 60 at para 38 . [ 39 ] As it should have been, the trial judge’s decision was driven by the circumstances of the children, which she found after a consideration of the whole of the evidence. [ 40 ] Both counsel for the Respondent and for the Children argued persuasively that the trial judge assessed all of the evidence and clearly was, to say the least, dissatisfied with the evidence of the Appellants.

There is no doubt that the trial outcome was the result in part of credibility findings by the trial judge adverse to the Appellants. These were findings the trial judge was entitled to make – indeed obliged to make, if the record called out for those findings to be made. The Appellants had no answer to these findings.

If anything, their conduct of the appeal tended to confirm them. [ 41 ] There is no reason to doubt that the trial judge considered that a like-cultural placement was an important factor to consider to reduce the possibility of cultural conflict, discord and disharmony, and that cultural identity is an important factor to consider.

This, however, is but one of various factors in determining personal identity; the relevancy of this factor depends on the context, which are based on the specific facts of the case; other factors are more directly related to primary needs and must be considered in priority: SM v Alberta 2019 ABQB 972 , citing again Van de Perre , at para 38 . [ 42 ] As also noted in SM v Alberta , [282] ...Courts are not required to and should not prioritize Indigenous culture to the expense of all other factors.

The paramount consideration is the best interests of the Children and as the Supreme Court has stated that all factors relating to the best interests of the child test must be considered pragmatically: Van de Perre at para 38 . [283] In RP v Alberta the Court stated at para 7 : I have also concluded that when considering whether to remove a child with Aboriginal antecedents from her foster home and place her in the home of an Aboriginal family member, s 2 of the CYFEA does not allow the Director to give priority to the desirability of a placement giving that child maximum contact with the Aboriginal community of which one or both of her parents belong at the expense of other factors, including the desirability of preserving an established bond with foster parents.

The latter consideration would generally be given more weight with any increase in the passage of time the child has successfully lived with her foster parents. [284] The Court also stated at para 72: ...Cultural contact considerations may be outweighed by the desirability of preserving the child’s bond with her foster parents, a bond which likely grows with the passage of time the child lives with her foster parents. Evidence as to the extent of such a bond and expert opinion as to the effect of its rupture by removing the child from her foster home is relevant to that determination….

Finally, in SM v Director , at para 292, the following is stated: [292] ... [CYFEA] is also consistent with the considerations laid out in Bill C-92 regarding permanent placements: while clearly important, culture does not trump all else.

Instead, Bill C-92 clarifies at section 10(1) that the best interests of the child remains the primary and paramount consideration, and at section 10(2) that when the best interest factors are being considered, primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child’s connections to his or her culture.

In section 10(3), the factors to be considered in the best interest assessment are laid out. Like

section 2 of the CYFEA , while considerations regarding culture, language, spirituality, heritage, identity and ties to the community are enumerated, so are factors such as the need for stability, the nature and strength of the child’s relationship with his or her parent, care provider [such as foster parents] and other members of the child’s family who play an important role in his or her life. Conclusion [ 43 ] The Appellants have failed to persuade me that the trial judge improperly took into account the Director’s obligation to prove that the children may not be safely returned to their parents.

On the applicable standard of review for this appeal, I find no material error, no serious misapprehension of the evidence, and no error in law: The trial judge decided the case before her after properly considering s 34 of the Act in the context of s 2 of the Act . Accordingly, the appeal is dismissed. Heard August 25, 2022 Further written submissions August 31 and September 2, 2022

Dated at the City of Edmonton, Alberta this 28 th day of November, 2022 Peter Michalyshyn J.C.K.B.A. Appearances: Appellants LC (self-represented) BF (self-represented) Respondent Director, Family, Youth and Child Enhancement, Katie Walker Don Scott McMurray Law Office Counsel for the Children Allan Vinni Allan Vinni Law Office