RJH v RMG, 2024 ABKB 71

Court of King’s Bench of Alberta Citation: RJH v RMG, 2024 ABKB 71 Date: 20240207 Docket: AD06 02398 Registry: Lethbridge Between: RJH and VMH Plaintiffs - and - RMG Defendant _______________________________________________________ Memorandum of Decision of the Honourable Justice J.C. Kubik _______________________________________________________ At the request of the parties, I am providing this written version of oral reasons I delivered on December 13, 2023. The oral reasons remain the official decision of the court.

In order to preserve the privacy interests of the child and parties, all names have been initialized. [ 1 ] On May 17, 2022, BRH was adopted by RJH and VMH. The effect of the adoption order was that BRH became the child of RJH and VMH as if she had been born to them.

She ceased to be the child of RMG. [ 2 ] On the same day RJH, VMH and RMG entered a Consent Order which allowed RMG specified visitation with the child and included requirements for supervision and non-consumption of alcohol and drugs, including prescribed medical cannabis, 24 hours prior to and during her visits. [ 3 ] In April 2023 RMG was unable to complete a scheduled visit because she had not complied with the 24-hour non-

consumption requirement. Her visit was cancelled.

Subsequent visits were cancelled due to concerns that the 24-hour non-consumption requirement was not being enforced by the supervisors. [ 4 ] On July 25, 2023, RMG commenced an application to enforce her visitation, asking the Court to hold RJH and VMH in contempt of the Consent Order and seeking to vary the parameters of her visitation, by reducing the non-consumption requirement from 24 hours to 8 hours and by removing the supervision requirement. [ 5 ] RJH and VMH cross applied to terminate the Consent Order, or in the alternative to require professional supervision of the visits.

They also sought an order allowing the visits to be discontinued if they moved out of the jurisdiction. [ 6 ] At the special chambers hearing RJH and VMH abandoned their applications to terminate the Consent Order and obtain an order allowing the visits to be discontinued if they moved. They agreed to make up the missed visits and allow for supervision by RMG’s parents to continue. [ 7 ] The parties requested that I assist them in trying to resolve the issues remaining between them, failing which I was empowered to decide those issues. [ 8 ] The parties agreed on the following issues: (

a) That 11 visits would be made up to account for the missed visits between April 2023 and September 2023; (

b) That visits will be 3 hours in length, not including transportation time; (

c) That visits will continue in the supervisors’ home and a supervisor will be present in the home at the time of the visit; (

d) That the visitation

schedule can be varied by written agreement; (

e) That the re-scheduling of any cancelled visit would occur within 3 days of the cancellation; and (

f) That any changes to the visitation

schedule would be as agreed upon between VMH and the supervisor. [ 9 ] The parties did not agree on the following issues: (

a) Variation of the 24-hour non-consumption clause; (

b) Whether visits could occur outside of the supervisors’ home; (

c) Whether RMG could take photographs of the child and post those images on her social media sites; and (

d) Whether the police enforcement clause is necessary. [ 10 ] As stated at the outset, the effect of the Adoption Order was to make RJH and VMH the child’s parents from her birth and to terminate the guardianship and parenting rights of RMG:

Section 72 Child, Youth and Family Enhancement Act , RSA 2000, c C-12 (the Act ). The Act does not give the Court jurisdiction to grant access rights to a biological parent following an adoption order. As a result, an order granting access rights following an adoption may only be entered with the consent of the parties or by exercise of the Court’s parens patriae jurisdiction. In this case the access order was entered by consent and provided strictly limited visitation. [ 11 ] There are no legislated mechanisms within the Act for review or variation of post-adoption access orders.

The gap which exists in the Act serves a meaningful purpose – it respects the finality of adoption orders, ensures certainty, stability, and consistency in the life of the adopted child, and vests final decision-making responsibility in the parents of the child, recognizing that they are the only individuals holding any legal status in relation to the child.

In the absence of legislated provisions allowing for variation, it follows that I can only vary the existing order by exercising parens patriae jurisdiction. [ 12 ] As stated by the Alberta Court of Appeal in E.C. v D.P., 1997 ABCA 285 , the Court’s parens patriae jurisdiction should only be exercised in exceptional circumstances where the best interests of the child will be served. I am not satisfied that I should exercise parens patriae jurisdiction to vary the Consent Order.

It is not in the best interest of the child, or the stability of the parent-child relationship created by the adoption order to entertain an application for variation of the terms of an agreed upon post-adoption access order. In addition, this would serve to give legal status to RMG beyond what was contemplated by the terms of the Consent Order or the legislation. In this case the child has two parents, who, by virtue of the adoption order are vested with the responsibility to make decisions in her best interest.

There is no evidence to suggest that they are not exercising this responsibility appropriately. [ 13 ] RJH and VMH are entitled to decide the parameters under which visits and contact with RMG will occur, including the location, duration, and supervision of those visits, as well as any restrictive clauses dealing with non-consumption of intoxicating substances (including prescribed medical cannabis), whether the child may be photographed and the use of those images.

The adoption order empowers them to do that without input or consultation with RMG and without further Court order. [ 14 ] Accordingly, RMG’s application is dismissed and the Consent Order of May 17, 2022, remains in full force and effect, subject to those modifications agreed upon by the parties. [ 15 ] The 24-hour supervision clause will not be varied. RJH and VMH can decide whether supervised visits can take place outside of the supervisors’ home, and the location, extent and nature of the supervision required for such visits.

RJH and VMH can decide whether RMG can take photographs of the child and make rules with respect to the use of those images. The police enforcement clause will be removed. It serves no useful purpose in the context of this relationship where the parents of the child should be able to make decisions in the best interests of the child, especially in relation to abstention and supervision requirements.

[ 16 ] Should the parties wish to engage the services of a mediator to resolve any further disputes it will be up to them to come to that agreement. I am not prepared to impose such a clause given the effect of the adoption on the rights of the parties and my previous indication that the parents are well-placed to make these types of decisions in the best interests of the child. Heard on the 20 th day of November 2023. Delivered orally at the City of Lethbridge, Alberta on the 13 th day of December 2023. Written reasons issued this 7 th day of February, 2024. J.C. Kubik J.C.K.B.A. Appearances: Spencer McMullin for the Plaintiffs (Respondents) Gayle E. Hiscocks for the Defendant (Applicant)