Director of Child, Youth and Family Enhancement (Alta.) et al. v. G.C., 2006 ABPC 23

• Judge: Dalton, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: November 02, 2005
• Citations: 2006 ABPC 23;(2005), 395 A.R. 89 (PC)

CFS v. G.C. (2005), 395 A.R. 89 (PC)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. FE.078

In The Matter Of an application for private guardianship order relating to the child, C.C., born [xxx] 1999;

And In The Matter Of an application for a review of temporary guardianship order relating to the child, C.C., born [xxx] 1999;

And In The Matter Of an application for custody and access relating to the child, C.C., born [xxx] 1999.

Alberta (Child, Youth and Family Enhancement Act, Director) (applicant) and M.M. (applicant) v. G.C. (respondents)

(040778185W101001; 050099290W101001; 051130441F101001; 2006 ABPC 23)

Indexed As: Director of Child, Youth and Family Enhancement (Alta.) et al. v. G.C.

Alberta Provincial Court

Dalton, P.C.J.

November 17, 2005.

Summary:

C.C. was born in 1999. In 2002, her mother, C.L.C., died. M.M., C.C.'s father, was charged with manslaughter and aggravated assault in the death. M.M. was not deemed to be a guardian of C.C. as he and C.L.C. had never resided together nor had C.C. ever lived with him. C.L.C.'s sister, G.C., obtained a private guardianship order for C.C. Subsequently, the Director apprehended C.C., obtained a temporary guardianship order and placed her in a foster home. In 2003, M.M. was found not guilty of the criminal charges. The Director sought a permanent guardianship order for C.C. M.M. opposed the Director's application and sought a private guardianship order and a custody order and applied to have G.C.'s guardianship rights terminated. G.C. consented to the Director's permanent guardianship application and, with the Director, opposed M.M.'s applications.

The Alberta Provincial Court denied the Director's application for a permanent guardianship order, granted M.M.'s applications for private guardianship and custody, and terminated G.C.'s rights as a guardian of C.C.

Editor's note: certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Guardian and Ward - Topic 220

Appointment and qualifications of guardian - Of children - Considerations - C.C. was born in 1999 - In 2002, her mother, C.L.C., died - M.M., C.C.'s father, was charged with manslaughter and aggravated assault in the death - M.M. was not deemed to be C.C.'s guardian as he and C.L.C. had never resided together nor had C.C. ever lived with him - G.C., C.L.C.'s sister, obtained private guardianship of C.C., but the Director subsequently apprehended C.C. and obtained temporary guardianship - In 2003, M.M. was found not guilty of the criminal charges - The Director sought permanent guardianship of C.C. - M.M. opposed the Director's application and sought private guardianship and custody - The Director presented evidence regarding M.M.'s motivation for seeking guardianship, alcohol consumption, residential and employment instability, and anger management issues - The Alberta Provincial Court allowed M.M.'s application for private guardianship and custody - The court was satisfied that if C.C. were in M.M.'s care, she would not be a child in need of intervention - The court waived the requirement that M.M. have had continuous care of C.C. for six months and dispensed with the need for G.C.'s consent to M.M.'s application - See paragraphs 31 to 73.

Guardian and Ward - Topic 363

Appointment and qualifications of guardian - Practice - Application for private guardianship - Time for or when available - C.C. was born in 1999 - In 2002, her mother, C.L.C., died - M.M., C.C.'s father, was charged with manslaughter and aggravated assault in the death - M.M. was not deemed to be C.C.'s guardian as he and C.L.C. had never resided together nor had C.C. ever lived with him - C.L.C.'s sister obtained private guardianship of C.C., but the Director subsequently apprehended C.C. and obtained temporary guardianship - In 2003, M.M. was found not guilty - The Director sought permanent guardianship - M.M. opposed the Director's application and sought private guardianship and custody - The Director argued that because M.M. was a legal stranger to C.C., the court had to deal with the Director's application first - The Alberta Provincial Court rejected the Director's argument - Where a biological parent's application for private guardianship and custody was heard contemporaneously with an application for permanent guardianship, the court should consider the private guardianship/custody application first - However, even if giving M.M.'s application priority was wrong in law, the Director's claim would not have primacy - There was parity between the Director's status and M.M.'s status and it was C.C.'s best interests that prevailed - See paragraphs 24 to 30.

Guardian and Ward - Topic 363

Appointment and qualifications of guardian - Practice - Application for private guardianship - Time for or when available - C.C. was born in 1999 - In 2002, her mother, C.L.C., died - M.M., C.C.'s father, was charged with manslaughter and aggravated assault in the death - M.M. was not deemed to be C.C.'s guardian as he and C.L.C. had never resided together nor had C.C. ever lived with him - C.L.C.'s sister obtained private guardianship of C.C., but the Director subsequently apprehended C.C. and obtained temporary guardianship - In 2003, M.M. was found not guilty - The Director sought permanent guardianship - M.M. opposed the Director's application and sought private guardianship and custody - Section 55(2) of the Child, Youth and Family Enhancement Act permitted the court to dispense with the consent of a guardian, other than a Director, to a private guardianship application - The Director argued that the private guardianship application could not be made without the Director's consent - The Alberta Provincial Court rejected the Director's argument and allowed M.M.'s application - Under s. 40(1) of the Act, the Director's temporary guardianship expired as of the hearing date - The Director had, as of present, ceased to be a guardian and the Director's refusal to consent to M.M.'s application was not a bar to granting that order - See paragraphs 74 to 76.

Guardian and Ward - Topic 363

Appointment and qualifications of guardian - Practice - Application for private guardianship - Time for or when available - A biological father who was not deemed to be his child's guardian applied for private guardianship of the child - The child's maternal aunt had private guardianship of the child, but the Director had apprehended her and obtained temporary guardianship - The Director opposed the father's application and applied for permanent guardianship - Section 55(2) of the Child, Youth and Family Enhancement Act permitted the court to dispense with the consent of a guardian, other than a Director, to a private guardianship application - The Alberta Provincial Court allowed the father's application - In obiter, the court considered the constitutionality of requiring the Director's consent to a private guardianship application - The effect of the requirement was to usurp the court's function - To withstand a Charter challenge, the legislation had to allow for private guardianship applications from persons most likely able to meet the child's best interests, including parents, foster parents and possibly anyone who had acted in a parental role or was a party to previous proceedings - The Director's position was invaluable but could not be determinative - See paragraphs 81 to 150.

Guardian and Ward - Topic 607

Tenure and termination of guardianship - Termination - Grounds for termination of order - C.C. was born in 1999 - In 2002, her mother, C.L.C., died - M.M., C.C.'s father, was charged with manslaughter and aggravated assault in the death - C.L.C.'s sister, G.C., obtained a private guardianship order for C.C. - Subsequently, the Director apprehended C.C. and obtained temporary guardianship - M.M. was found not guilty of the criminal charges - M.M. sought private guardianship and custody of C.C. and applied to have G.C.'s guardianship rights terminated - G.C. consented to a permanent guardianship application by the Director, but opposed M.M.'s application to terminate her guardianship - The Alberta Provincial Court terminated G.C.'s rights as guardian to C.C. - There was evidence of G.C.'s alcohol abuse and use of illicit drugs - C.C.'s survival, security and development could not be adequately protected if she were returned to G.C. - However, as it was in C.C.'s best interests to maintain contact with G.C., G.C. was to continue to have access visits with C.C. - See paragraphs 20 to 23.

Guardian and Ward - Topic 816

Public trustee or guardian - Appointment - Child or adult in need of protection - Permanent appointment - [See first Guardian and Ward - Topic 363 ].

Cases Noticed:

W.D. v. G.P. (1984), 54 A.R. 161 (C.A.), refd to. [para. 25].

Child and Family Services of Winnipeg Central v. K.L.W. et al., [2000] 2 S.C.R. 519; 260 N.R. 203; 150 Man.R.(2d) 161; 230 W.A.C. 161, refd to. [para. 82].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 82].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 82].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 82].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 83].

R.T., Re (2004), 259 Sask.R. 122 (F.L.D.), refd to. [para. 86].

R. v. Jones, [1986] 2 S.C.R. 284; 69 N.R. 241; 73 A.R. 133, refd to. [para. 93].

R.A., Re, [2002] Y.J. No. 48 (Terr. Ct.), refd to. [para. 103].

T. v. Director of Child Welfare (Alta.) (2000), 261 A.R. 315; 225 W.A.C. 315; 188 D.L.R.(4th) 603 (C.A.), refd to. [para. 113].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 117].

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1, refd to. [para. 120].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 126].

Khan v. University of Ottawa (1997), 101 O.A.C. 241; 2 Admin. L.R.(3d) 298 (C.A.), refd to. [para. 126].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 128].

N.P.P. and M.E.P. v. Regional Children's Guardian (Calgary) (1988), 88 A.R. 114 (Q.B.), refd to. [para. 132].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 134].

L.S.L. v. Alberta (Director of Child Welfare), [2005] A.J. No. 827 (Prov. Ct.), refd to. [para. 136].

D.N. et al. v. Director of Child Welfare (Alta.) (2001), 294 A.R. 142 (Prov. Ct.), refd to. [para. 144].

Authors and Works Noticed:

Canada, Law Commission Report, Restoring Dignity: Responding to Child Abuse in Canadian Institutions (2000), p. 9 [para. 102].

Mullan, David J., Administrative Law (2001), p. 322 [para. 127].

Counsel:

B. Hogle, for the Director;

R. Morin, for the applicant, M.M;

J. Snowden, for the respondent, G.C.

These applications were heard on September 26 and November 2, 2005, by Dalton, P.C.J., of the Alberta Provincial Court, who delivered the following decision orally on November 17, 2005, and filed written reasons for judgment on January 16, 2006.