W.S. v. Director of Child, Youth and Family Enhancement (Alta.), (2013) 560 A.R. 179 (QB)

• Judge: Ross, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 08, 2013
• Citations: (2013), 560 A.R. 179 (QB);2013 ABQB 231

W.S. v. CFS (2013), 560 A.R. 179 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. AP.130

W.S. (applicant) v. Director (Child, Youth & Family Enhancement Act)

(respondent)

(FL03 31045; 2013 ABQB 231)

Indexed As: W.S. v. Director of Child, Youth and Family Enhancement (Alta.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Ross, J.

April 16, 2013.

Summary:

A father applied to have the court order that state-funded counsel be provided to assist him with his appeal of a Provincial Court decision under the Child, Youth and Family Enhancement Act, granting a permanent guardianship order respecting his seven children.

The Alberta Court of Queen's Bench dismissed the application.

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 1765

Powers - Appointment of counsel - To represent parent or other relatives in protection proceedings - [See Guardian and Ward - Topic 904 ].

Guardian and Ward - Topic 904

Public trustee or guardian - The hearing - Representation - A father applied to have the court order that state-funded counsel be provided to assist him with his appeal of a Provincial Court decision under the Child, Youth and Family Enhancement Act, granting a permanent guardianship order respecting his seven children - The Alberta Court of Queen's Bench dismissed the application on the ground that the appeal lacked merit - While there was an arguable legal ground for the appeal, there was no realistic chance of success - It was not a close call - The trial judge had no hesitation in concluding that the father's children "could not be protected in his care and could not be returned to him within a reasonable time." - Trial counsel was of the view that this conclusion was justified and "beyond appeal" based on admissible evidence - The principle that the "paramount focus" of an appeal court "must always be on the best interests of these children, and their need for permanency planning" made it even clearer that the appeal had no realistic chance of success.

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; 177 D.L.R.(4th) 124, refd to. [para. 6].

Director of Child, Youth and Family Services Health and Community Services Board (St. John's) v. J.F. et al. (2005), 247 Nfld. & P.E.I.R. 354; 735 A.P.R. 354; 2005 NLCA 34, refd to. [para. 10].

Director of Child, Youth and Family Services (Nfld. and Lab.) v. L.T. et al. (2010), 302 Nfld. & P.E.I.R. 252; 938 A.P.R. 252; 2010 NLCA 70, refd to. [para. 10].

R.A.F. v. Saskatchewan (Minister of Justice) et al. (2003), 240 Sask.R. 95; 2003 SKQB 507, refd to. [para. 10].

L.D. et al. v. J.B. et al. (2012), 549 A.R. 58; 2012 ABQB 693, refd to. [para. 10].

R. v. Morehouse, 2005 ABCA 336, refd to. [para. 11].

R. v. Robinson; R. v. Dolejs (1989), 100 A.R. 26; 51 C.C.C.(3d) 452; 63 D.L.R.(4th) 289 (C.A.), refd to. [para. 11].

R. v. Bernardo (P.K.) (1997), 105 O.A.C. 244; 121 C.C.C.(3d) 123; 12 C.R.(5th) 310 (C.A.), refd to. [para. 11].

S.E.M., Re (1986), 74 A.R. 23; 32 D.L.R.(4th) 394 (Q.B.), refd to. [para. 18].

C.A.S. v. Director of Child Welfare (Alta.) (2003), 330 A.R. 371; 299 W.A.C. 371; 2003 ABCA 233, refd to. [para. 26].

W.W., Re (1989), 100 A.R. 221 (Q.B.), refd to. [para. 26].

D.A. et al. v. Director of Child Welfare (Alta.) (2004), 377 A.R. 26; 2004 ABQB 791, refd to. [para. 26].

Counsel:

Katie Noel (Katie Noel Professional Corporation), for the applicant;

Jeffrey H. Mayan and Kirk Starkie (Alberta Justice), for the respondent, Director, Child, Youth & Family Enhancement;

Shelley J. MacDonald, for the Attorney General of Alberta;

Daina J. Young (Reynolds, Mirth, Richards and Farmer LLP), for the Legal Aid Society of Alberta.

This application was heard on January 28 and March 8, 2013, by Ross, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on April 16, 2013.