It is an unfortunate reality that in our society there are times when it becomes necessary for government agencies to intervene with families and, for their protection, remove children from the custody of their parents.  In Alberta, such intervention is governed by through the Child Youth & Family Enhancement Act (the “CYFEA”).  Under section 19 of this legislation, if Child and Family Services have reasonable and probably grounds to believe that a child is in need of such intervention, they are permitted to apply to the Courts for the apprehension of the child.  However, unlike the typical process in most Court applications, under section 19 of the CYFEA, Child and Family Services, has the right to have their application heard without first providing notice of the application to the guardian(s) of the child.

Applications without notice to a party, such as those permitted under section 19 of the CYFEA, are often referred to as ex parte applications; such applications are not unheard of and do occur in any number of areas of law.  However, the Alberta Court of Appeal has held that:

…ex parte proceedings should rarely, if ever, take place and then so only if the court can be satisfied as to the serious mischief that might be entailed. Where counsel proceeds on that basis in any event, and the court is prepared to consider the application, counsel does so with a significant burden, namely to make full, fair and candid disclosure of all non-confidential, non-privileged material facts, including those which are adverse to his position. (see Alexander v. Cherry at paragraph 6)

Because of the potential for mischief, and the harm that can arise from an Order that is granted solely on the basis of a single party’s evidence, the Court of Appeal has also held that any such ex parte Order must ensure that the other party, to whom notice was not provided, has a reasonable opportunity to respond to the Order before the status quo is permanently altered or seriously prejudiced.  Plainly speaking, the Court of Appeal has recognized and directed that it is critical that ex parte Orders be reviewed, giving the other party the right to present evidence or challenge the Order.

Prior to the CYFEA, a guardian’s right to challenge and review ex parte apprehension Orders was legislatively granted.  Under the old Child Welfare Act, Child and Family Services could proceed with an application for the apprehension of children on an ex parte basis; however, this Act also permitted a guardian of a child who had been apprehended to serve Child and Family Services with a demand notice, forcing a review of the apprehension Order.  This balance between the rights of Child and Family Services to proceed ex parte and the rights of a guardian to force a review of any orders arising from such an application, were unfortunately lost when the CYFEA replaced the Child Welfare Act.  Under the CYFEA, a guardian’s right to serve a demand notice on Child and Family Services, was not carried over into this new legislation.  As a result, there is no longer a mechanism, within the child welfare legislation that allows a child’s guardian to force a review of an apprehension order granted on an ex parte basis.

Nonetheless, given the Court of Appeal’s concern for the mischief that might arise from  ex parte applications, and the risk of a status quo being permanently altered, we are of the opinion that the lack of legislative mechanism by which to challenge ex parte apprehension Orders does not preclude guardians from nonetheless being able to bring an review of these Orders.

In a recent case, Mincher Koeman LLP had to address this very issue, when Child and Family Services successfully brought an application to apprehend two children without providing notice to the guardian.  In the absence of a review mechanism in the CYFEA, we took the position that the Provincial Court still retained the residual power to review ex parte orders granted under the CYFEA.

Section 8 of the Provincial Court Act provides that the Alberta Rules of Court apply as may be required, where the Provincial Court Act itself does not provide for a specific practice or procedure. The Provincial Court Act is silent on the procedure or practice in relation to challenging ex parte orders. In such a case, the Rules would apply.

Under Rule 9.15(1) of the Rules, a litigant has to right to bring an application before the Court seeking to set aside an order that was made on an ex parte basis.

While the presiding Judge at the Provincial Court refused to hear the application to set aside the ex parte order, we were able to have the matter put before a Queen’s Bench Justice on a Stay Application.  Ultimately, the Court of Queen’s Bench stayed the original ex parte apprehension Order, finding that there was no urgency behind Child and Family Services’ application that would have justified proceeding ex parte, and further Ordered costs against Child and Family Services on an full indemnity basis.  While Child and Family Services have appealed the decision of the Court of Queen’s Bench, their application for a stay of the Queen’s Bench Order was dismissed, and the Queen’s Bench Order continues to stay the original ex parte apprehension Order.

While the Provincial Court refused to hear the guardian’s application in this instance, we are of the opinion that such a refusal is not indicative of the view of the Provincial Court as a whole, and that the authority exists for not only guardians to bring such applications to set aside ex parte apprehension Orders, but also for the Provincial Court to hear such applications.   Ex parte applications come with significant risks, not only of the potential for abuse by the parties seeking them, but also to those who are ultimately affected by them.  To deny guardians a proper and fair opportunity to challenge ex parte apprehension Orders is not only inconsistent with the direction and cautioning of the Court of Appeal, but is also incompatible with a Court’s mandate to consider the best interests of a child, for how can a Court truly determine a child’s best interests without hearing from the child’s own guardian.

If you need legal advice or representation with any family law matter, please contact Mincher Koeman LLP at 403 910 3000 or reception@mincherkoeman.com

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