N.A.H. v. G.L. et al., 2012 ABCA 247

• Judge: Watson, J.A.
• Court: Court of Appeal (Alberta)
• Case Date: August 16, 2012
• Citations: 2012 ABCA 247;(2012), 536 A.R. 87

N.A.H. v. G.L. (2012), 536 A.R. 87; 559 W.A.C. 87 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. AU.052

G.L. and S.L. (respondents/appellants) v. N.A.H. (applicant/respondent)

(1203-0132-AC; 2012 ABCA 247)

Indexed As: N.A.H. v. G.L. et al.

Alberta Court of Appeal

Watson, J.A.

August 20, 2012.

Summary:

J.F. had been apprehended by the Director of Child, Youth and Family Enhancement at hospital following his birth in 2006. J.F.'s grandmother, and J.F.'s foster parents, each applied for guardianship and for a parenting order.

The Alberta Provincial Court, in a decision reported at [2011] A.R. Uned. 498, dismissed the maternal grandmother's application. The foster parents were appointed guardians of J.F. The grandmother appealed.

The Alberta Court of Queen's Bench, in a decision reported at [2012] A.R. Uned. 368, dismissed the appeal. The grandmother applied for leave to appeal under rule 12.71 of the Rules of Court.

The Alberta Court of Appeal, per Watson, J.A., denied leave. The court was not persuaded that there was any prospect of success in an appeal.

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.

Courts - Topic 2109

Jurisdiction - Appellate jurisdiction - Reconsideration of decisions - [See second Guardian and Ward - Topic 364 ].

Guardian and Ward - Topic 364

Appointment and qualifications of guardian - Practice - Judicial review or appeal (incl. leave to appeal) - The applicant appealed a private guardianship order of the Provincial Court made under Alberta's Family Law Act - A Court of Queen's Bench judge dismissed the appeal - The applicant sought leave to appeal, under rule 12.71 of the Rules of Court - That rule did not itself specify the test for grant of leave - The Alberta Court of Appeal, per Watson, J.A., confirmed the leading jurisprudence that "[t]he test for leave to appeal under Rule 12.71 is that the applicant must show that there is an important question of law or of precedent, that there is a reasonable chance of success on appeal, and that the delay will not unduly hinder the progress of the action or cause undue prejudice" - See paragraph 6.

Guardian and Ward - Topic 364

Appointment and qualifications of guardian - Practice - Judicial review or appeal (incl. leave to appeal) - The applicant, the maternal grandmother of the child J.F., appealed a private guardianship order of Miller, P.C.J., appointing the foster parents, G.L. and S.L., guardians of J.F. - Manderscheid, J., dismissed the appeal - The applicant sought leave to appeal under rule 12.71 of the Rules of Court - The Alberta Court of Appeal, per Watson, J.A., denied leave - The court was not persuaded that there was any prospect of success in an appeal - Amongst other things, Manderscheid, J., found it reasonable for Miller, P.C.J., to conclude that the applicant's position about the authoritative primacy of her blood relation with J.F. was so predominant that it diminished her ability to consider the emotional well being from the point of view of J.F. - That factual inference, together with the rest of the findings, were not matters which involved an important question of law or of precedent in a manner transcending the case - "The present application comes down to a request for this Court to reconsider the judgment of Manderscheid, J., and thereby the judgment of Miller, P.C.J., on the merits. ... [T]he reality for J.F. is that the courts with factual jurisdiction have concluded that the life of J.F. should now continue with G.L. and S.L. There is no reason to think that it would be in the best interests of J.F. to destabilize his life in that regard by yet another hearing. This Court is not in a position to completely reverse the outcome below." - See paragraphs 15 to 18.

Practice - Topic 8876

Appeals - Leave to appeal - Grounds for granting leave - [See first Guardian and Ward - Topic 364 ].

Practice - Topic 8877

Appeals - Leave to appeal - Grounds for refusal to grant leave - [See second Guardian and Ward - Topic 364 ].

Practice - Topic 9136

Appeals - Hearing of appeal - Rehearing or reconsideration - When available - [See second Guardian and Ward - Topic 364 ].

Cases Noticed:

R.W. et al. v. Director of Child Welfare (Alta.), [2010] A.R. Uned. 780; 2010 ABCA 412, revd. (2011), 502 A.R. 379; 517 W.A.C. 379; 2011 ABCA 139, appld. [para. 6].

T.W. et al. v. Director of Child Welfare (Alta.) - see R.W. et al. v. Director of Child Welfare (Alta.).

Platner v. Platner, [2010] A.R. Uned. 671; 2010 ABCA 342, refd to. [para. 6].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 9].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 9].

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241; 134 D.L.R.(4th) 321, refd to. [para. 17].

Statutes Noticed:

Rules of Court (Alta.) 2010, rule 12.71 [para. 5].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 9].

Counsel:

C.P. Bataluk (agent for E.A. Iginla), for the applicant;

T. Huizinga, for the respondents;

V.V. Pillay (no appearance), for the Director of Child, Youth & Family Enhancement;

J.D. MacPherson, for the child.

This application was heard on August 16, 2012, before Watson, J.A., of the Alberta Court of Appeal, who delivered the following decision and reasons for decision, filed at Edmonton, Alberta, on August 20, 2012.