Cherie M., Re, (1983) 53 A.R. 48 (ProvCt)

Judge:Fitch, P.C.J.
Court:Provincial Court (Alberta)
Case Date:December 13, 1983
Jurisdiction:Alberta
Citations:(1983), 53 A.R. 48 (ProvCt)
 
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Cherie M., Re (1983), 53 A.R. 48 (ProvCt)

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Re Cherie M.

(N 7375)

Indexed As: Cherie M., Re

Alberta Provincial Court

Fitch, P.C.J.

December 13, 1983.

Summary:

The 32 year old native woman from Manitoba lived in Alberta with her five children. Feeling overwhelmed by her problems she entered a four month custody by agreement arrangement with the Alberta Director of Child Welfare respecting her second oldest child, a nine year old girl, who was encopretic and enuretic and had poor school attendance and performance. The girl improved dramatically in a month. The director suggested terminating the custody by agreement two months early, but the mother did not feel ready. The case worker then terminated the custody by agreement and the child was deemed to be apprehended. The mother returned to Winnipeg, established herself and wanted her daughter back. The Alberta Director of Child Welfare applied for a finding of neglect and a one year temporary wardship with a view to permanent wardship.

The Alberta Provincial Court dismissed the Director's application, found that the girl was not neglected and that it was in her best interests to be returned to her mother. The court found that the girl could hardly be found to be neglected by the mother, when the mother had voluntarily arranged for her care by the Director and, ruling that the best interests of the girl were paramount, found that the mother should have a chance to demonstrate her parenting ability.

Family Law - Topic 1804

Custody - General - Categories of custody - The Alberta Provincial Court set out the four categories of custody of children, including custody in one or both parents, guardianship, wardship by the state and adoption - The court noted that the main consideration in all cases is the best interests of the child; although there were other factors, such as blood kinship, ethnicity and culture - See paragraphs 39 to 49.

Guardian and Ward - Topic 815

Public trustee or guardian - Appointment - Child in need of protection - Considerations - Neglect - What constitutes - A native mother, who was overwhelmed by her problems, entered a custody by agreement arrangement with the Director of Child Welfare respecting one of her children - The child dramatically improved after a month in the care of the Director - The mother re-established herself and with the support of Child Welfare Agencies in another province asked for the return of her daughter - The Director applied for a wardship order, claiming the child was neglected - The Alberta Provincial Court held that the child was not neglected, particularly where the mother had taken steps to see that the girl was properly cared for.

Guardian and Ward - Topic 815

Public trustee or guardian - Appointment - Child in need of protection - Considerations - Best interests of child - The Alberta Provincial Court held that the primary consideration in determining whether a child is in need of protection with a view to granting a wardship order is the best interests of the child - The court noted that there were other, lesser considerations, such as blood kinship, ethnicity and culture.

Guardian and Ward - Topic 819

Public trustee or guardian - Appointment - Child or adult in need of protection - Evidence - Time for determination - The Alberta Provincial Court held that in determining whether a wardship order should be made respecting a child the court could consider evidence not only of the time of the apprehension, but the whole of the evidence up to the time the inquiry is held - See paragraphs 21 to 28.

Cases Noticed:

Mooswa v. Minister of Social Services (1976), 30 R.F.L. 101 (Sask. Q.B.), ref'd to. [para. 36].

E.C.D.M., Re (1980), 17 R.F.L.(2d) 274 (Sask. P.C.), ref'd to. [para. 36].

F.M., Re (1979), 11 R.F.L.(2d) 120 (Ont. P.C., F.D.), consd. [para. 37].

C.A.S. of Winnipeg v. Clark (1980), 20 R.F.L.(2d) 314 (Man. C.A.), consd. [para. 37].

M.(L & K), Re (1980), 7 Alta. L.R.(2d) 220 (Alta. Juv. Ct.), ref'd to. [para. 38].

Dept. of Health v. B. (1981), 24 R.F.L.(2d) 289 (Man. P.C., F.D.), ref'd to. [para. 38].

D.C.W. & C.L., Re (1982), 30 R.F.L. (2d) 416 (Alta. P.C.), ref'd to. [para. 38].

Racine v. Woods (1983), 24 Man.R.(2d) 186; 48 N.R. 362, reving 19 Man.R.(2d) 186; 33 R.F.L.(2d) 153, restoring 25 Man.R.(2d) 194, appld. [para. 39].

W., Re; W. v. R.; R. and R. v. W. (1983), 19 Man.R.(2d) 186; 33 R.F.L.(2d) 153, revd. 24 Man.R.(2d) 186; 48 N.R. 362 (S.C.C.), ref'd to. [para. 39].

J. v. C., [1970] A.C. 668 (H.L.), ref'd to. [para. 41].

Minister of Social Services v. G. (1982), 26 R.F.L.(2d) 440 (Sask. Q.B.), consd. [para. 42].

D.L.C. and C.W.C., Re (1983), 34 R.F.L.(2d) 225 (Man. C.A.), appld. [para. 43].

Mugford, Re, [1970] 1 O.R. 601 (S.C.C.), disapproved [para. 47].

Duffel, Re, [1950] S.C.R. 737, disapproved [para. 47].

Hepton v. Maat, [1957] S.C.R. 606, disapproved [para. 47].

Agar, Re, [1958] S.C.R. 52, disapproved [para. 47].

Statutes Noticed:

Child Welfare Act, R.S.A. 1980, c. C-8, sect. 6(e)(xiv) [para. 27]; sect. 14(1) [para. 21]; sect. 18 [para. 24]; sect. 28(1), sect. 28(3) [para. 18].

Authors and Works Noticed:

Bagley, Chris, Total Child Welfare For the Eighties, Child Welfare and Adoption: International Issues (1981) [para. 14].

Johnston, Patrick, Native Children and the Child Welfare System [para. 17].

Counsel:

K. Totrupp, for the Director of Child Welfare;

D.J. Gandar and B. Edy, for the mother;

No-one for the step-father;

No-one for the child.

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