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 CYFEA provides for a specific right for Child and Family Services to proceed with an application for the apprehension of a child, without notice to the parents or guardians of the child.

It is a presumption that this specific reference to Child and Family Services having the right to proceed ex parte is as a result of the increased possibility of parents absconding with their children should they receive notice that Child and Family Services intends to bring an application to apprehend the children.  However, notwithstanding the heightened concern for parents hiding or running away with their children, the question then arises as to whether or not this provision permits Child and Family Services to apply for an apprehension of children, without notice to the parents, in every case – even where there is no reasonable concern that the parents might flee with their children should they be provided notice.

While experience in the practice of child welfare appears to demonstrate that Child and Family Services views proceeding ex parte as the default action when applying for apprehension orders, In the case of C.J.P v. Alberta, 2007 ABQB 659, the Honourable Justice S.D. Hillier, while discussing the right of the Guardian to respond to an ex parte Order already granted, nonetheless remarked upon the circumstances in which such Order should be sought on an ex parte basis, stating, at para.19(a):

First, we are dealing with legislation focused on the best interests of the child. It is certainly vital that an Apprehension Order be available as an expedited remedy, whether obtained from a judge or a justice of the peace. In fact s. 19 contemplates that in exceptional circumstances apprehension may be achieved by unilateral action of the Director … On the facts here that concern between the parties remains and the guardian who has had care and custody of this child for half of its life has not yet been given a chance to provide input to the Court as to the best interests of the child. (emphasis added)

Further, in the case of CR v Alberta (Child, Youth and Family Enhancement Act, Director), 2015 ABQB 198, the Honourable Justice Eidsvik considered whether the ex parte application for apprehension that had been brought by the Director was properly brought. At issue was whether the Director provided full and balanced evidence on the ex parte application, but the Court also specifically mentioned that ex parte applications are only merited in certain circumstances, stating:

I agree with the Appellants that the Director had no appropriate basis to bring the apprehension application, he brought the application ex parte improperly, and he failed in his duty to disclose all of the facts to the Court and give a fair and complete review of the situation.

I am cognisant that the Director has statutory authority to bring an ex parte application when it is merited. It is understandable that this would be necessary in certain circumstances.

These comments in these cases appear to echo the sentiments of the Court of Appeal of Alberta in the case of Alexander v. Cherry, 2007 ABCA 128, wherein the Court discussed when it is appropriate to proceed on an ex parte basis, stating:

…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.

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.

The difficulty, however, arises from two compounding issues: Firstly, the Director of Children’s Services appears to consistently take the position that the reference in the CYFEA to bringing an application for apprehension ex parte is permission to proceed ex parte in all circumstances, even if there are no exceptional circumstances or concern that the guardians of the child(ren) may abscond or act in a way that would put the child(ren) at risk were they to be given notice.  As a result, in cases where proceeding ex parte would otherwise not be permitted under different areas of law, the Director still proceeds ex parte and effectively prevents the guardians from responding to the apprehension application and challenging the Director’s evidence.  This is a denial of natural justice.

Secondly, while the case law cited above speaks to the absolute necessity of a respondent in any ex parte matter to have the right of response in an urgent and timely manner, the reality of the CYFEA process is that on the first return date of the Apprehension Order, the guardians are not permitted to address or challenge the ex parte Order.  This return date is typically up to 10 days from the date of the Apprehension and is set down for the purposes of setting a date for the parties to address whether the Apprehension was reasonable.  The CYFEA permits the parties to set such a date for a hearing on the Apprehension some 42 days after the return date.  The result of this is that the guardians of a child may not be able to respond to or challenge the initial apprehension for 52 days after the apprehension occurred.  This means that the child(ren) may remain outside of their guardian(s) care for close to eight weeks without the initial apprehension ever being tested or reviewed by a Court as to whether it was appropriately granted.

It is the opinion of Mincher Koeman that this is not how the system was designed to work.  Should the Director’s view of the apprehension procedure be accepted, this would suggest that respondents in civil matters have greater certainty and protection and the right of response than do parents of children who have been taken out of their care and placed in a foster home with individuals that the children do not know.  As the entire founding principle of the CYFEA is the best interests of the children, it has to be asked:  how is the process as deemed by the Director in the best interests of children, when they are potentially left to languish outside of their parents’ care without any chance for review of such a decision for eight weeks, when litigants in property matters have greater rights to review ex parte orders.

This is an area that Mincher Koeman is actively challenging to ensure that the law, the rights of children, and the fundamentals of justice are preserved.  We will continue to update our blog as these issues progress.

If you have had your children removed from your care through an ex parte apprehension order and believe that it was improperly granted, please contact Mincher Koeman LLP at assistant@mincherkoeman.com or at (403) 910-3000.

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