D.L. et al. v. Director of Child Welfare (Alta.) et al.,

• Judge: Côté, Hunt and Berger, JJ.A.
• Neutral Citation: 2002 ABCA 46
• Citation: (2002), 299 A.R. 290 (CA),2002 ABCA 46,100 Alta LR (3d) 205,299 AR 290,26 RFL (5th) 415,(2002), 299 AR 290 (CA),299 A.R. 290
• Date: 07 September 2001
• Court: Court of Appeal (Alberta)

D.L. v. CFS (2002), 299 A.R. 290 (CA);

    266 W.A.C. 290

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. MR.072

In The Matter Of J.S., Born January [xxx], 1987, a Child within the meaning of the Child Welfare Act, S.A. 1984, Chapter C-8.1;

T.S. (appellant/appellant) v. The Director of Child Welfare (respondent/respondent)

(0003-0459-AC)

And In The Matter Of the Child Welfare Act and In The Matter Of An appeal of an Apprehension Order of Her Honour Judge J. Franklin made the 12th Day of January, 2000 entered the 12th day of January, 2000;

And In The Matter Of the Children the Subject of the said Apprehension Order namely: K.L., Date of Birth [xxx] May, 1990 and K.L., Date of Birth [xxx] July, 1991;

D.L. and M.L. (appellants/appellants) v. The Director of Child Welfare (respondent/respondent)

(0003-0460-AC; 2002 ABCA 46)

Indexed As: D.L. et al. v. Director of Child Welfare (Alta.) et al.

Alberta Court of Appeal

Côté, Hunt and Berger, JJ.A.

March 4, 2002.

Summary:

The Director applied under s. 30 of the Child Welfare Act for permanent guardianship of two children presently subject to a temporary guardianship order (K.L. and Ka.L.). A service plan was not filed within 30 days, as required by s. 29 of the Act. Prior to making a decision under s. 30, the court was to consider whether the Director followed the plan filed with the court.

The Alberta Provincial Court, Family Division, in a decision reported 262 A.R. 195, dismissed the guardianship application. The court held, inter alia, that absent the filing of a plan mandated by s. 29, the court lacked jurisdiction to grant a permanent guardianship order. The Director sought and was granted an apprehension order for the children. The parents appealed.

In a separate proceeding, the Director of Child Welfare applied under s. 30 of the Child Welfare Act for an order for permanent guardianship of a child (J.S.). The Director's application was dismissed. The Director then applied under s. 32 of the Act for an order for permanent guardianship of the same child. The respondent mother opposed the Director's application and applied for its dismissal.

The Alberta Provincial Court, Family and Youth Division, in a decision reported 258 A.R. 352, dismissed the mother's application. The mother appealed. The two appeals were heard together.

The Alberta Court of Queen's Bench, in a decision reported 268 A.R. 395, dismissed both appeals. The parents in both proceedings appealed.

The Alberta Court of Appeal dismissed the appeals.

Civil Rights - Topic 3193

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Procedure not contrary to fundamental justice - [See second Guardian and Ward - Topic 816 ].

Guardian and Ward - Topic 816

Public trustee or guardian - Appointment - Child in need of protection - Permanent appointment - Appellants argued that the Director of Child Welfare's failure to file a "case plan" (service plan) under s. 29 of the Child Welfare Act was fatal to the court's jurisdiction to hear and determine an application for a permanent guardianship order under s. 30 when there had been a previous temporary guardianship order in place - They argued that the filing of a case plan was a prerequisite to the exercise of the court's jurisdiction under s. 30 - The Alberta Court of Appeal held that the filing of a case plan was mandatory under s. 29(3) when a temporary guardianship order (TGO) was in place - The failure to file the plan rendered the TGO void on the 31st day after it was granted and precluded its review under s. 30 - However, the nullification of a TGO did not limit the Director's ability to take other steps with regard to the child, such as applying for an apprehension order, another TGO, or a permanent guardianship under a different section of the Act - The Director could not be left powerless to intervene in the best interests of the child - Any other approach would undermine the purpose of the Act - See paragraphs 5 and 46 to 59.

Guardian and Ward - Topic 816

Public trustee or guardian - Appointment - Child in need of protection - Permanent appointment - The Alberta Court of Appeal stated that the filing of a case plan was mandatory under s. 29(3) of the Child Welfare Act when a temporary guardianship order (TGO) was in place - The failure to file the plan rendered the TGO void on the 31st day after it was granted and precluded its review under s. 30 - However, it was not an abuse of the process of the Court nor a violation of s. 7 of the Charter for the Director to subsequently seek an apprehension order (s. 17) or a permanent guardianship order when a similar application under s. 30 had failed - This approach was consistent with the purposes of the Act - See paragraph 60.

Guardian and Ward - Topic 825.4

Public trustee or guardian - Appointment - Case plan - [See both Guardian and Ward - Topic 816 ].

Practice - Topic 5277.1

Trials - General - Stay of proceedings - Abuse of process - [See second Guardian and Ward - Topic 816 ].

Cases Noticed:

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. 22].

Schwartz v. Canada - see Minister of National Revenue v. Schwartz.

Minister of National Revenue v. Schwartz, [1996] 1 S.C.R. 254; 193 N.R. 241, refd to. [para. 24].

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. 28].

J.U. v. Regional Director of Child Welfare (Alta.) et al. (2001), 281 A.R. 396; 248 W.A.C. 396 (C.A.), leave to appeal refused (2001), 283 N.R. 398; 299 A.R. 305; 266 W.A.C. 305 (S.C.C.), refd to. [para. 33].

Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al., [1995] 4 S.C.R. 344; 190 N.R. 89, refd to. [para. 38].

B.-T.C. and T.C., Re (1990), 113 A.R. 81 (Prov. Ct.), refd to. [para. 43].

Montreal Street Railway Co. v. Normandin, [1917] A.C. 170 (P.C.), refd to. [para. 47].

Statutes Noticed:

Child Welfare Act, S.A. 1984, c. C-8.1, sect. 29, sect. 30 [para. 11].

Authors and Works Noticed:

Alberta, Board of Review Report: The Child Welfare System (1983), p. 26 [para. 40].

Alberta, Hansard, Legislative Assembly, April 18, 1984, p. 549 [para. 41].

Alberta, Hansard, Legislative Assembly, May 8, 1984, p. 749 [para. 41].

Alberta, Hansard, Legislative Assembly, May 28, 1984, p. 1106 [para. 41].

Côté, Pierre-André M., The Interpretation of Legislation in Canada (3rd Ed. 2000), p. 237 [para. 46].

Hansard (Alta.) - see Alberta, Hansard, Legislative Assembly.

Counsel:

A.C. Kellett and H.R. Greaves, for the appellants;

R.L. Parker, for the respondent (on Appeal No. 0003-0459);

T.L. Snow, for the respondent (on Appeal No. 0003-0460);

C.J. Matheson, for the child J.S.;

J.D. MacPherson, for the children K.L. and Ka.L.;

R.S. Wiltshire, for the intervenor, the Attorney General of Alberta.

This appeal was heard on September 7, 2001, by Côté, Hunt and Berger, JJ.A., of the Alberta Court of Appeal. On March 4, 2002, Hunt, J.A., filed the following decision for the Court of Appeal.