J.T. et al., Re, (2001) 283 A.R. 169 (ProvCt)

• Judge: Lipton, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: February 12, 2001
• Citations: (2001), 283 A.R. 169 (ProvCt);2001 ABPC 27

J.T., Re (2001), 283 A.R. 169 (ProvCt)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. MR.080

In The Matter Of: The Child Welfare Act, S.A., C-8.1, as amended; and The Provincial Court Act, S.A., P-20, as amended;

And In The Matter Of: J.T., K.T. and J.R.

(15167612W10101; 15167612W10201; 15167612W10301; CFC122721; CFC123908; 2001 ABPC 27)

Indexed As: J.T. et al., Re

Alberta Provincial Court

Family Division

Lipton, P.C.J.

February 12, 2001.

Summary:

Three children were apprehended by Child Welfare. The maternal grandparents filed a private guardianship application pursuant to the Child Welfare Act (the Act) and a custody application pursuant to the Provincial Court Act. The mother did not object to the youngest child remaining in foster care pending the completion of Child Welfare's investigation. With respect to the other two children, the mother brought an application, arguing that: (1) the apprehension could be set aside pursuant to s. 19(8)(a) of the Act on the basis that the mother, in moving in with the maternal grandparents and having them assist her with the children, had made proper arrangements for the children's care; (2) if the court had concerns with placing the children with the grandparents after setting aside the apprehension then it should grant the grandparents' applications for private guardianship and custody; (3) if the court had concerns about setting aside the apprehension, then it should grant a s. 24(2) order placing the children with the grandparents subject to whatever conditions it wished to impose; and (4) if the court did not agree to placing the children with the grandparents pursuant to a s. 24(2) order, then it should grant the grandparents generous access.

The Alberta Provincial Court, Family Division, granted custody of the two children to Child Welfare until the end of the proceedings under the Act. Access to the children by the parents or grandparents would be at the discretion of Child Welfare. The grandparents' applications for private guardianship and custody were adjourned.

Guardian and Ward - Topic 215

Appointment and qualifications of guardian - Of children - Jurisdiction - [See first Guardian and Ward - Topic 363 ].

Guardian and Ward - Topic 363

Appointment and qualifications of guardian - Practice - Application for private guardianship - Time for or when available - Three children were apprehended by Child Welfare - The maternal grandparents filed a private guardianship application under the Child Welfare Act (the Act) and a custody application under the Provincial Court Act (PCA) - The Alberta Provincial Court, Family Division, stated that "[a]s a matter of law, I believe that I do have the authority to grant an application for private guardianship subsequent to an apprehension ... In order to get around the impediment placed on such a procedure pursuant to s. 25 of the Act, it would first be necessary to strike down the apprehension or dismiss Child Welfare's application under Part III, as the case may be, before granting a private guardianship order under the Act and a custody order under the PCA. It must be remembered, however, that the efficacy of granting a private guardianship order after an apprehension is to effectively exclude any further Child Welfare investigation. Such a procedure is fraught with danger absent cogent evidence that the children will no longer be at risk and without Child Welfare's prior approval " - See paragraph 25.

Guardian and Ward - Topic 363

Appointment and qualifications of guardian - Practice - Application for private guardianship - Time for or when available - [See Guardian and Ward - Topic 815.3 ].

Guardian and Ward - Topic 815.3

Public trustee or guardian - Appointment - Child in need of protection - Care and custody pending hearing - Maternal grandparents filed a private guardianship application pursuant to the Child Welfare Act (the Act) and a custody application pursuant to the Provincial Court Act with respect to their grandchildren who had been apprehended by Child Welfare - The mother brought an application, arguing that: (1) the apprehension could be set aside pursuant to s. 19(8)(a) of the Act on the basis that the mother, in moving in with the maternal grandparents and having them assist her with the children, had made proper arrangements for the children's care; (2) if the court had concerns with placing the children with the grandparents after setting aside the apprehension then it should grant the grandparents' applications for private guardianship and custody; (3) if the court had concerns about setting aside the apprehension, then it should grant a s. 24(2) order placing the children with the grandparents subject to whatever conditions it wished to impose; and (4) if the court did not agree to placing the children with the grandparents pursuant to a s. 24(2) order, then it should grant the grandparents generous access - The Alberta Provincial Court, Family Division, granted custody to Child Welfare until the end of the proceedings under the Act - Access would be at the discretion of Child Welfare - There were enough "red flags" to justify the extra month required to complete an assessment of the grandparents.

Guardian and Ward - Topic 818.2

Public trustee or guardian - Appointment - Child in need of protection - Custody application - [See Guardian and Ward - Topic 815.3 ].

Guardian and Ward - Topic 825.3

Public trustee or guardian - Appointment - Access to children - [See Guardian and Ward - Topic 815.3 ].

Cases Noticed:

A.S.R. et al., Re (1998), 218 A.R. 276 (Prov. Ct. Fam. Div.), refd to. [para. 24].

C., Re (1985), 57 A.R. 152 (Prov. Ct.), refd to. [para. 25].

Counsel:

J. Nicholson, for the Director of Child Welfare;

D. Castle, for the mother;

S. Hendricks, for the father T.R.;

K. Sparks, for the father M.T.;

D. Kobylnyk, for the maternal grandparents.

This application was heard before Lipton, P.C.J., of the Alberta Provincial Court, Family Division, who delivered the following judgment on February 12, 2001.