The Yellow Brick Road to Financial & Emotional Ruin

Prior to 2013, when a Permanent Guardianship Order (PGO) was granted, this meant the end of the line for a family. If appeals were unsuccessful the child would not be returned to the parents and the parents became legal strangers. The children would go on to be adopted often by foster parents who had been Foster to Adopt placements, or the children would remain in foster care moving from family to family with the children facing more serious struggles commonly ending up in group homes.

Any application for contact or decision-making powers by the child’s parents would have to occur either under the Family Law Act, by applying for guardianship once again or under the Child, Youth and Family Enhancement Act (CYFEA) with the consent of the Director. This often left families in a difficult position as they could only apply under the CYFEA if a caseworker for the Director had made a subjective decision internally to consent to this application and this would rarely occur as families would lose touch with the Director after the PGO was granted.

In 2013, the law changed. It is unclear what the push or the catalyst was that led to this change as the section is barely debated or referenced in the Hansard as the Honourable Minister of Human Services Mr. Hancock as he was known at the time merely makes a passing reference to the change in May 2013 when the Act has its second reading. The case of Re A(HM), 2015 ABPC 29 does provide some information stating:

At the time of this enactment, Alberta was the only jurisdiction that did not have a provision of this kind, although former guardians have always had the right to appeal PGOs and, with the consent of the Director, to have the matter brought back to Court to terminate PGOs, as long as this was done with the consent of the Director.

There were only two brief statements made in the Legislature concerning this new provision; the first suggested that it would “allow former guardians of a child now under permanent guardianship to apply for an order to terminate”

The second statement in the same session noted that the provision would “allow … guardians to appeal permanent guardianship orders”. Unfortunately, the latter statement mis-characterizes the provision as an “appeal”, when in fact it is only available in situations where appeals have been exhausted

There are no corresponding procedural amendments to the CYFEA, and s.35.1 contains within it no guidelines to assist applicants, respondents or the Courts in determining how to give effect to its statutory purpose.

The change to the legislation, although barely mentioned in the House when debated, was significant. It brought Alberta into line with the other provinces who also had a similar section and for the first time it provided a statutory framework that allowed former guardians who had had their parental rights removed, to apply to become a guardian again if:

• the child has not been adopted; and
• more than one year has elapsed since the period for appealing the permanent guardianship order expired or, if the permanent guardianship order was appealed, since the appeal was disposed of; and
• more than 2 years has elapsed since the last application brought by the applicant under this section, if any, was disposed of.

This has led many parents whose children have been taken into care to have false hope that their children could be returned after a Permanent Guardianship Order has been granted. This hope is largely misplaced because an application cannot be brought until at the very earliest 1 year and 30 days after the PGO was made, making the Director the permanent guardian of the child.

In reality, this means with the delays in the court system that the application cannot be started until at least 1 year and 30 days has elapsed. At that time, even if a guardian is ready to file an application that day, it will be returnable in Provincial Court for a docket appearance. It will be adjourned for a number of docket appearances while discussions occur on how the court will receive the information about what is in the best interests of a child, and then the matter will be set for trial. Any trial is likely to be at least 1 year from the original date of the application meaning that the child will have been out of the care of the parents for a minimum of 2 years at the time of trial, not counting all the additional time prior to the PGO hearing, when supervised visits were likely occurring on an ad hoc basis for just a few hours per week.

The families who are involved in the child protection system are often the most vulnerable of Albertans with the lowest income. They are therefore likely to rely on legal aid to fund this type of case. Those using Legal Aid face several challenges including restrictions on the hours legal aid will provide, the low hourly rate, and the lack of funding for appropriate experts including experts who can provide evidence about the misconceptions of Attachment Theory and how it is being wrongly applied by the courts. This leaves even the most arguable case unlikely to succeed in reality unless it is supported by the Director, leaving the courts largely defunct as the decision-making power falls to the subjective views of a caseworker to decide if the parent has made substantial changes and whether they will support the application.

Parents Who Have Made Changes

For those parents who have actually turned the corner and have made a change, such as finding employment, stability and/or a new home, this positive change places even more hardship on them when looking to apply for the return of their child. They will no longer be eligible for legal aid and will have to fund the trial privately, with the opposing Director’s counsel funded by a bureaucracy with no heed nor care for how many court appearances occur, or how long the delays are waiting for the case to be called. For the Director, this has no impact on their assessment of the case, yet for the parent funding a privately retained lawyer, the clock is ticking and the funds depleting. The costs of the case start to spiral for the individual with a privately retained lawyer, when they are often only earning minimal wages, and have other financial commitments making it impossible for them to proceed.

If the Parents Appealed

For some parents faced with losing their children, they will choose to appeal the original decision granting the PGO. With the delays in the court system and the time to hear an appeal, other parents faced with a catch 22 situation will choose to not appeal a meritorious case out of fear of prolonging the time in which they can apply for the return of the child, believing that they will have a better chance of demonstrating that the child should be returned after a year, than succeeding on an appeal.

However, parents who choose to go this route may not realize the damage this may cause to their chances as a result of the Court’s near-absolute reliance on Attachment Theory as a determining factor in many CYFEA cases, despite research showing the over-simplification of the theory to child protection cases. This theory is often oversimplified, holding that once a child is with a foster family and a PGO has been granted, this child should remain in this placement rather than facing further disruption, despite research to the contrary, especially in the case of Indigenous children. The lack of cultural exposure in young childhood followed by a return to their homes in teen years and early adulthood can lead to the “split feather syndrome” where children feel attached neither to their birth culture or that of their Euro-centric foster parents.

The Test for Terminating a PGO

Once the application to terminate a PGO has been filed, the applicants face even further challenges. S. 35.1(2) of the CYFEA states that:

The Provincial courts in Calgary have taken different approaches in deciding these matters. The courts in Calgary have developed a two-step process for assessing applications under s.35.1. The Honourable Judge Cook-Stanhope in Re A(HM), at paragraphs 140-141, developed a two-stage test stating:

There should be a two-step process for assessing applications of the kind AM has brought in the present matter. In the first step, the applicant should obtain approval or leave of the Court before proceeding with an application to terminate any PGO when it is not supported by the Director.

At this stage, before the Court should engage in a full hearing to consider termination, an applicant must satisfy the Court on the basis of reliable evidence or “ostensibly credible and weighty evidence” that their parenting deficiencies or circumstances have changed or improved.

Citing authority G(DL) v. Family and Children’s Services of Kings County:

The nature, extent, recency and duration of the change are all factors which will be reviewed at this stage. There must be a significant change. Finally, the evidence must be sufficient to suggest a reasonable likelihood of success in the main application.

This approach has never been endorsed or deemed the right procedure at any higher level of court. Therefore the two-stage process is not a mandated process as it is not binding on higher courts. This approach, if adopted by the higher courts, makes the application of the parents even less likely to succeed in reality. It creates further financial difficulty, as the parents are forced to conduct two hearings, the first assessing their suitability and the second assessing whether it is in the best interest of the child to be returned. For those lucky enough to receive legal aid, they will be restricted by the hours available, again making it almost impossible for the lawyers to fully and adequately prepare the matter for trial without effectively acting pro bono (for free). As the court stated at paragraph 142:

If there has been such demonstrable change in the former guardian’s circumstances, and if this is sufficient to allow the Court to conclude that the applicant is therefore “capable” of resume care of the child, the Court may then permit the application to go to the next step. This is tantamount to granting leave.

Requiring a parent to effectively obtain leave of the court to bring an application is a much harder hurdle than the legislation anticipates in a strict reading. It also creates a barrier, as the parent’s suitability has to be assessed without any up to date information on the child’s circumstances or needs, as the court has determined that disclosure should not be granted until after this is assessed. Therefore, the parent’s ability to provide a good home will be based on outdated knowledge of the child’s needs and circumstances unless the Director provides voluntary disclosure.

Obtaining Disclosure

To obtain disclosure in a child protection matter, an application has to be made under s. 126.11 of the CYFEA. As long as a person is a party to a matter, they can bring an application for disclosure subject to the requirements of that section. Once they have done so, the Court is obligated to consider that application in the context of the factors set out in 126.11(8).

The court in Re A(HM) stated “It is my opinion that the issue of disclosure under s. 126.11 should not be considered unless and until a Court is satisfied that the former guardian is not only willing, but also capable of resuming the care of a child or children.” The problem with this argument is that if the applicant has no disclosure as to the present circumstances of the child, they can never demonstrate that they are capable of resuming care of that child. At best, they can attempt to demonstrate that they are capable of caring for the child, as the child was at the time the PGO was first ordered. But that is not the test. Based on the decision in Re A(HM), a parent cannot demonstrate this.

Additionally, according to section 126.11(8), a Court, when hearing the applicant’s application for disclosure, must consider the factors in that section and then the Court: “may order that the record or the part of the record be produced to the court, if the court is satisfied that it is relevant, material and likely necessary to advance the position of the applicant.”

This is a critical component that courts have overlooked. Even if the higher courts were to accept a two-stage process, for a parent to demonstrate that they are capable of caring for the child at that present time, they require information about that child and how the child has developed since the PGO. Clearly that information will be in the disclosure sought under section 126.11 and therefore that disclosure will likely be necessary to advance the position of the applicant even in the first stage of a two-stage process.

The Honourable Judge Redman in J. (N.) v. Alberta (Director of the Child, Youth, and Family Enhancement Act), 2016 ABPC 47 reviews the decision of the Honourable Judge Cook-Stanhope and takes a more literal interpretation of the statute, recognizing the challenges that the Honourable Judge Cook-Stanhope’s interpretation causes and finds that “ it may be appropriate for the Court to separate the hearing of a Section 35.1 application into two parts. I do not agree, however, that it is necessary or even advisable in every case. The section itself does not direct a two-step or preliminary process and, although Rule 7.1(1) permits the Court to determine issues before a full trial, it is certainly not mandatory. In this and other cases, the determination of whether the Applicant is capable required substantial evidence about the children’s needs and her ability to meet them, and to have proceeded in a two-step process would likely have delayed the matter and created a lengthier and perhaps more complex process, which is not in the best interest of the children.”

Conclusion

As both these decisions are from the Provincial Court it will be interesting to see how the higher courts assess these changes and which test will be adopted. However, what is clear is that for many parents, the introduction of this section has led to the false hope of a return of a child to their care when the reality is often very different without the support of the Director when the application is filed. In summary, the hope that many parents hold that there is an opportunity to apply to have their children returned post-PGO under-estimates the difficulties that they face when making such an application and the financial and emotional ruin that is often the fall-out from such an application.

The family law lawyers at Mincher Koeman regularly work on child protection matters, including matters specific to First Nations communities. We are passionate advocates of the rights of First Nation children to maintain cultural and community connections throughout the child welfare process. We understand how Alberta’s child protection system works, and we know how to effectively challenge or advocate at each stage. If your family has become by the child intervention process, or you are seeking guardianship of a child who is the subject of an intervention, please contact our office to discuss your options by calling us at 403-910-3000 or by contacting us online.