C.L.T.F., Re, (1991) 114 A.R. 366 (ProvCt)

• Judge: Landerkin, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: March 12, 1991
• Citations: (1991) 114 A.R. 366 (ProvCt)

C.L.T.F., Re, (1991) 114 A.R. 366 (ProvCt)

MLB headnote and full text

In The Matter Of C.L.T.F., born July 17, 1989 A Child Within The Meaning Of The Child Welfare Act (No. N1036(1))

Indexed As: C.L.T.F., Re

Alberta Provincial Court

Family Division

Landerkin, P.C.J.

March 12, 1991.

Summary:

The Native Director of Child Welfare applied under the Child Welfare Act for permanent guardianship of an infant. The infant's mother, aged 15, was herself under the guardianship of the Director. The mother opposed the application.

The Alberta Provincial Court, Family Division, denied the application on the ground that it lacked jurisdiction.

Guardian and Ward - Topic 43

General and definitions - Guardian - A 14 year old native girl was under the permanent guardianship of the Native Director of Child Welfare - She gave birth to an infant - The Alberta Provincial Court held that the mother lacked the capacity to be the infant's guardian.

Guardian and Ward - Topic 822

Public trustee or guardian - Appointment - Jurisdiction - The Director of Child Welfare could apply for permanent guardianship of a child where the child was in need of protective services - Section 1(2) of the Child Welfare Act provided that a child was in need of protective services where the guardian failed to provide care or where "the guardian of the child is dead and the child has no other guardian" - The Alberta Provincial Court held that it had no jurisdiction under the Act to entertain an application for guardianship where there was no lawful guardian.

Guardian and Ward - Topic 822

Public trustee or guardian - Appointment - Jurisdiction - The infant's mother was a minor, under the permanent guardianship of the Director of Child Welfare and totally dependent on the state for support - The Director of Child Welfare applied under the Child Welfare Act for permanent guardianship of the infant as a child in need of protective services - The Alberta Provincial Court held that it lacked jurisdiction to entertain the application where the infant had no guardian - The court would only intervene where the child was at risk because the guardian failed to provide care or was dead and there was no other guardian.

Cases Noticed:

R. v. Enkirch, [1983] 1 W.W.R. 530; 41 A.R. 387 (C.A.), refd to. [para. 27].

White v. Barrett (1973), 10 R.F.L. 90 (C.A.), refd to. [para. 31].

S.D., Re (1989), 92 A.R. 1 (P.C.), refd to. [para. 35].

L.G.A.B., Re (1989), 101 A.R. 92 (P.C.), refd to. [para. 36].

W.D. v. G.P. (1984), 32 Alta.L.R.(2d) 232; 54 A.R. 161; 41 R.F.L.(2d) 229 (C.A.), refd to. [para. 37].

Statutes Noticed:

Child Welfare Act, R.S.A. 1980, c. C-8, sect. 24(2) [para. 16].

Child Welfare Act, S.A. 1984, c. C-8.1, sect. 1(1)(k) [para. 23]; sect. 1(2) [para. 21]; sect. 32(3) [para. 19]; sect. 54 [para. 48]; sect. 73 [para. 63]; sect. 90 [para. 23].

Children's Protection Act, R.S.A. 1922, c. 217, sect. 2(h), sect. 2(i) [para. 51].

Dependent Adults Act, R.S.A. 1980, c. D-32, sect. 7(1) [para. 49].

Domestic Relations Act, R.S.A. 1980, c. D-37, sect. 46 [para. 39]; sect. 47 [para. 24]; sect. 48, sect. 50 [para. 33]; Part 7 [para. 31].

Maintenance Order Act, R.S.A. 1980, c. M-1, generally [para. 52].

Authors and Works Noticed:

Bala, Hornick and Vogl, Canadian Child Welfare Law (1990), ch. 1 [paras. 55-60].

Black's Law Dictionary [para. 27].

Cruikshank, David, Guardianship and Custody: A Review of Alberta Legislation (May 1989), Canadian Research Institute For Law and the Family, Legal Education Society of Alberta, pp. 543 [para. 33]; 548 [para. 34].

Driedger, Construction of Statutes (1983), p. 87 [para. 30].

Ziff, A Note on the Plight of Unwed Fathers in Alberta (1988), 59 Alta.L.R.(2d) 149 [para. 37].

Counsel:

J. Bruni, for the Director;

S. Clarke, for the mother.

This application was heard before Landerkin, P.C.J., of the Alberta Provincial Court, Family Division, who delivered the following judgment on March 12, 1991.