Supreme Court

Application Re: adoption of M.J., 2015 NWTSC 32

S-001-AD-2014-000011






IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES








IN THE MATTER OF the Adoption Act

AND IN THE MATTER OF an application for the Adoption of

M.J., a female child born December 20, 2005, by

K.S. and A.S. both of the

City of Yellowknife, in the Northwest Territories.






_________________________________________________________ Transcript of the Reasons for Decision delivered by
The Honourable Justice L. A. Charbonneau, in Yellowknife, in the Northwest Territories, on June 10, 2015.
_________________________________________________________






APPEARANCES:



Ms. T. Paradis:	Counsel on behalf of the Petitioners

Ms. B. McIlmoyle:	Counsel on behalf of the Child








A.C.E. Reporting Services Inc.

1	THE COURT:	Good afternoon, everyone.

2	I just want to ask a few

3	questions before I start.	I am prepared to give

4	my decision, and the answer to this question is

5	not going to change anything to it, but I just

6	want to clarify some things for the record.	When

7	I was reviewing all the materials on this file

8	before this hearing, but also at the conclusion

9	of the hearing yesterday, I did not see in the

10	affidavit of service folder which is on the court

11	file anything showing that the order appointing

12	counsel to the child and the order amending that

13	order was ever served on the L.s.	Are either of

14	you able to help me with that?	There's an

15	affidavit of service that deals with the order

16	setting the matter for a special chambers

17	hearing, and I know those two things happen on

18	the same date, but I could not see an affidavit

19	of service confirming that the order appointing

20	counsel and the amending order was served.

21	MS. PARADIS:	Your Honour, I understand the

22	question.	The day that we appeared in chambers

23	and had the office -- the children's lawyer

24	appointed, we had served those materials in

25	advance upon the OCL, and Ken Kinnear had

26	appeared on it.	The standard practice is for the

27	office of the children's lawyer to draft the

1	order appointing, as well as -- I believe serve

2	it as well in their capacity.	So if there was no

3	affidavit of service on file, I think that we

4	would have to ask Mr. Kinnear of what their

5	normal practices are.

6	THE COURT:	So, in other words, you don't

7	have proof of service of that?

8	MS. PARADIS:	I don't have proof of service

9	of that.	I also know that the order had been

10	amended.

11	THE COURT:	Yes.	There's no proof of

12	service of that.

13	MS. PARADIS:	Yes.

14	THE COURT:	All right.

15	Can you help, Ms. McIlmoyle?

16	MS. MCILMOYLE:	Your Honour, I did not serve,

17	but I did provide copies of the orders when I

18	sent correspondence to the L.s.

19	THE COURT:	So those -- you sent two

20	letters at the end of --

21	MS. MCILMOYLE:	Yes.	One in January and one

22	in March.

23	THE COURT:	Okay.	And you sent those --

24	copies of those two orders, the initial one and

25	the amending one, with your letter?

26	MS. MCILMOYLE:	Yes, I did.

27	THE COURT:	Okay.	I think, just for

1	future reference, you may want to take this back

2	to Mr. Kinnear.	I think it is important that

3	those orders be served just so that the record is

4	complete.	This occurred to me in the context of

5	assessing the significance of their lack of

6	response to you.

7	MS. MCILMOYLE:	Right.

8	THE COURT:	If someone did not know, they

9	might be quite puzzled and not quite understand

10	what this is about, but I'm glad to hear that

11	they got a copy at least.	But I think this is a

12	procedure that needs to be sorted out between --

13	I know it's not your office, but the office

14	you're working for in this capacity and the

15	family bar in general.

16	MS. MCILMOYLE:	Thank you, Your Honour.	I'll

17	pass that along to Mr. Kinnear.

18	THE COURT:	All right.	Thank you.

19	I have a fair bit to say this

20	afternoon and I will ask you, Madam Reporter, to

21	prepare a transcript of my decision.	I ask that

22	anytime I'm referring to anyone by name in that

23	decision, whether it's the party's or even a

24	witness, that you use initials only.	Although I

25	will refer to names as I speak here this

26	afternoon.

27	Now, because this application

1	today is one step in the context of a broader

2	process, there are a number of things I wanted to

3	go over in ruling on this application.	And

4	although I heard the evidence just yesterday,

5	I've attempted to be thorough in explaining why

6	I've come to the conclusion I have.	I will say

7	at the outset that I am going to grant the

8	application dispensing with the consent of the

9	biological mother and maternal grandparents as

10	part of this process, but I want to spend some

11	time explaining why, and I also want to spend

12	some time explaining some of the steps that I

13	think will have to be undertaken and some issues

14	that will have to be addressed at later stages in

15	this matter as this petition process continues.

16	The Petitioners commenced

17	proceedings by Petition filed April 4, 2014.

18	They seek to adopt the child, M., who is their

19	granddaughter.	The Petitioner's son is the

20	child's biological father and he has signed a

21	document whereby he consents to the adoption.	In

22	this application the Petitioners seek an order

23	dispensing with the consent of the child's mother

24	and the child's maternal grandparents, W.L. and

25	S.L.

26	In considering this

27	application, I have taken into account the

1	affidavits that were filed by Ms. S., the joint

2	affidavit filed by S.L. and W.L., as well as the

3	viva voce evidence that was adduced at the

4	hearing yesterday.

5	The child was born in December

6	2005.	Proceedings related to her custody were

7	commenced in 2007.	Her paternal grandmother,

8	Ms. S., and her maternal grandparents, the L.s,

9	were granted leave to seek custody as part of

10	those proceedings.	On October 29th, 2007, a

11	Consent Order issued whereby Ms. S. and the L.s

12	were granted joint custody of the child, with the

13	child being placed in the day-to-day care of

14	Mr. and Ms. L. in Tulita.	The Order also

15	provided for generous access by the paternal

16	grandparents, who live in Yellowknife.	The

17	access clause, which was paragraph 3 of the

18	Order, stated that the father and M.S., the

19	grandmother, would have generous and liberal

20	access to the child, and specifically until the

21	child becomes of school age the child would spend

22	up to four months, and no less than three months,

23	of each and every year in the care of the child's

24	father and M.S.	Access was to be exercised in

25	the home of K.S. or as could otherwise be

26	mutually agreed by the parties.

27	The access clause contemplated

1	the possibility for the access to take place in

2	the father's home if he was able to provide a

3	home for the child, that the length of each

4	period of access would be at the discretion of

5	the parties and in consideration of the best

6	interest of the child, that it would be exercised

7	at a minimum of six weeks per visit twice a year

8	or as could be otherwise mutually agreed to.

9	There was a clause that dealt

10	with what would happen when the child became of

11	school age, stating that the child was to spend

12	six weeks during the summer holidays each and

13	every year in the care of her father and Ms. S.,

14	and there were further clauses dealing with

15	alternate holidays access and how much in advance

16	the access would be organized.	And there was

17	also a clause saying that there would be any

18	additional access that the parties could mutually

19	agree to.

20	At the hearing yesterday

21	Ms. S. testified that between October 2007 and

22	September 2010 the child, in fact, spent much

23	more than four months per year in Yellowknife.

24	She testified that the child spent as much as

25	eight months each of those years with her husband

26	and her in blocks of approximately four months.

27	This changed in September 2014; the child was to

1	start school that fall and it was not expected

2	that she would be able to be in Yellowknife for

3	the same lengthy periods of times as before.

4	The evidence about the extent

5	of access that took place between October 2007

6	and December 2010 is not contradicted.	The joint

7	affidavit sworn by the L.s does not provide any

8	details as to the frequency of access between

9	2007 and 2010.

10	It is uncontradicted that

11	since December 2010 the child has been in the

12	day-to-day care of the S.s, but there is very

13	conflicting evidence in the affidavits as to how

14	this came to be.	This was one of the reasons why

15	this matter was scheduled for a special chambers

16	hearing with viva voce evidence.

17	In her affidavit, Ms. S.

18	deposed that in the context of the Christmas

19	visit in December 2010 it came to her attention

20	that the child was not going to kindergarten

21	regularly.	She also testified that the child

22	appeared to her to have lost weight and that her

23	hair was greasy.	But school was really her main

24	concern on my understanding of her evidence.	She

25	deposed in her affidavit that she called Ms. L.

26	to express her concern about the child not being

27	in school and that she suggested perhaps that it

1	would be better if the child remained with the

2	S.s in Yellowknife so that she would attend

3	school regularly.	In her affidavit, she deposes

4	that Ms. L. did not object to this.

5	Ms. S.'s evidence at the

6	hearing yesterday was not wholly consistent with

7	her affidavit.	Her testimony was that when she

8	found out the child had not been going to school

9	this made her angry and she called the L.s and

10	told them she would not be returning the child to

11	them because they were not caring for her

12	adequately if they were not ensuring that she was

13	going to school.	Ms. S. testified that Ms. L.

14	hung up on her during that conversation and did

15	not respond one way or another to what she was

16	telling her.	She also testified that since then

17	the L.s have never asked that the child be

18	returned to them, nor taken any legal steps to

19	have her returned to them.

20	The version of events in the

21	joint affidavit sworn by the L.s is quite

22	different.	They depose that the child went to

23	Yellowknife for the Christmas visit in December

24	2010 and that during that visit they tried to

25	reach the child several times and were

26	unsuccessful.	They depose that there were

27	instances where the phone seemed to be off the

1	hook, as it always rang busy, and other times it

2	would just ring and ring and no one would answer.

3	They depose that they took steps to get legal

4	assistance in early 2011 in order to have the

5	child returned to them.	In June 2011 they

6	commenced the application of process for a custom

7	aboriginal adoption of the child.	Their

8	affidavit does not make any mention of the

9	concerns expressed by Ms. S around the child not

10	going to school or the fact that she told them

11	she would not return the child to them for that

12	reason.

13	In her testimony yesterday,

14	Ms. S. denied firmly doing anything to cut off

15	the L.s' access to the child during that

16	Christmas visit or at any other point.	She

17	testified that she recognizes the importance of

18	the child maintaining contact with both sides of

19	her heritage and that if the L.s want to spend

20	time with the child she would be happy to let

21	that happen.	She also explained that there has

22	always been an answering machine in her home,

23	that the phone number has been the same

24	throughout the last several years, that she never

25	got any messages on that answering machine from

26	the L.s, and that she knows of no reason why the

27	house phone would have been off the hook during

1	this period of time.

2	As far as contact between the

3	L.s and the child since December 2010, it seems,

4	again, fairly clear that there has been very

5	little contact, but, again, the evidence is

6	conflicting as to how this came to be.

7	In her evidence yesterday,

8	Ms. S. testified she got two phone calls from the

9	L.s since December 2010.	She testified both

10	those calls were received during the evening

11	after the child had gone to bed and that she told

12	the L.s they needed to call before 8 p.m. if they

13	want to speak to the child.	This is different

14	from what she deposed to in her affidavit.	In

15	her affidavit she deposed that there were two

16	calls and that the L.s did speak to the child on

17	those occasions.	Ms. S.'s counsel submitted that

18	this and some of the other differences between

19	the affidavit and the in-court testimony is

20	likely attributable to fading memories due to the

21	passage of time.

22	By contrast, the L.s'

23	affidavit is to the effect of they tried multiple

24	times to contact the S.s, that the phone would

25	either ring continuously or they would get a busy

26	tone.	Sometimes they called when they were in

27	Yellowknife, they say, and they depose that when

1	they did get through, once Ms. S. knew it was

2	them she "did not receive their calls well," as

3	they put it.	They say in that sense this is why

4	they've not had any contact with the child in the

5	last several years.	Again, in her testimony in

6	court Ms. S. specifically and firmly denied that

7	she refused to let the L.s have contact with the

8	child and, as I've mentioned, she gave evidence

9	about her phone number, her answering machine,

10	and firmly denied doing anything to prevent

11	contact between the child and her maternal

12	grandparents.

13	As far as contact between the

14	child and her biological mother, there were

15	difficulties in determining the mother's

16	whereabouts, such that the Petitioners obtained,

17	in July 2014, an order allowing them to serve her

18	by serving the parents in Tulita.	This is how

19	service of this Petition and motion were effected

20	on her.	There is very little information before

21	the Court as to the biological mother's

22	whereabouts.	There is some information in the

23	affidavit filed by the L.s that she lives in

24	Edmonton.	Their affidavit was sworn in September

25	2014 and in that affidavit they depose that she

26	"has visited them in Tulita recently and then

27	returned home."	By that time, in the fall of

1	2014 or late summer or 2014, the child was in

2	Yellowknife, so the mother would clearly not have

3	had any contact with her during her last visit in

4	Tulita.	There is no other evidence about any

5	contact between the child and her mother between

6	October 2007 and December 2010.

7	Ms. S. testified that the last

8	time she spoke to the biological mother of the

9	child was in September 2014 over the phone.	She

10	testified that the call came in late at night,

11	that the child's mother was yelling and swearing

12	and slurring her words.	Ms. S. believes that she

13	was intoxicated.	The mother did not speak to the

14	child on that occasion.

15	The evidence about the child's

16	current situation is uncontradicted.	She lives

17	in Yellowknife, she attends school, and she is

18	involved in several activities.	E.B., the

19	assistant principal of the school she attends,

20	was called by counsel for the child.	She

21	testified that the child had some difficulties

22	when she first started attending school in

23	January 2011.	Ms. B. explained what was put in

24	place by the school to assist her and testified

25	that she has progressed very well since then.

26	I want to make it clear, as I

27	did during the evidence, that in my view some of

1	the things Ms. B. talked about were well beyond

2	what can properly be adduced from a non-expert

3	witness.	The opinions that she expressed about

4	some of the child's diagnoses, how her struggles

5	might evolve in the future, what types of

6	measures might be necessary to assist her with

7	those special needs, are well beyond the scope of

8	what an ordinary witness can testify to.	It may

9	well be that Ms. B.'s training and experience is

10	such that after a voir dire she could, at some

11	other point, be permitted to give opinion

12	evidence on these topics, but in this hearing

13	counsel did not ask to have her qualified as an

14	expert witness, and because of that I must treat

15	her evidence as that of a regular witness.	I

16	have kept this in mind and for present purposes I

17	have relied on her evidence only inasmuch as it

18	relates to factual information about how the

19	child is functioning in school and things that

20	have been put it place to assist her.	On that

21	basis, I certainly accept that at present

22	everything that can be done to assist her has

23	been put in place, that she is well looked after

24	and well supported both in her home environment

25	and in her school environment, and that she is

26	thriving.	But I think that is the extent to

27	which I can use Ms. B.'s evidence.	As I say,

1	opinions she expressed about ways to deal with

2	her -- whatever special needs she might have, how

3	those needs will evolve and change in the future,

4	and what types of supports would need to be put

5	in place are not admissible coming from a witness

6	who is not being called as an expert witness.

7	Turning to the analysis of the

8	issues that arise on this motion, I first want to

9	go back to the issue of the L.s not having

10	appeared on this motion and issues of service.

11	Because they did not appear yesterday, because

12	they had participated previously when they had

13	counsel, because they have not had counsel for

14	several months, and given the importance of this

15	matter, I asked a number of questions at the

16	start of the hearing yesterday to satisfy myself

17	that service was in order and that the matter

18	should proceed this week.	One of the concerns I

19	had was that counsel advised that their briefs

20	were picked up at the post office in Tulita the

21	day before the hearing, meaning the day before

22	yesterday.	Clearly that is not ideal.	But the

23	overall circumstances must also be considered,

24	including how long the L.s have had notice that

25	this hearing date was set and the fact that there

26	is no indication that they contacted counsel or

27	the Court at all since November 2014.

1	Again, the L.s initially did

2	have counsel on this matter.	Their counsel got

3	off the record in the fall of 2014.	There is an

4	affidavit of service showing that they were

5	served with counsel's Notice of Ceasing to Act by

6	mail and by fax on November 6.	At that point the

7	matter had been adjourned to be spoken to in

8	family chambers on November 20th, among other

9	things, for an application to have counsel

10	appointed for the child.	The documents served on

11	the L.s by their counsel included a letter

12	advising them that they should make arrangements

13	to attend the application scheduled for November

14	20th.

15	On November 20th the L.s did

16	not appear.	The order appointing counsel for the

17	child was made.	The Court also then directed

18	that the matter be scheduled for a special

19	chambers hearing date.	Although there is nothing

20	on the file confirming service of the order

21	appointing counsel to the child, counsel for the

22	child has advised that those orders, the initial

23	order and the subsequent order that amended it,

24	were sent to the L.s with counsel's

25	correspondence.

26	There is an affidavit of

27	service that confirms that the order directing

1	that the matter be set for a special chambers

2	hearing date was served on the L.s.	It was

3	served by registered mail on December 8th.	The

4	Court then set the hearing date to June 9 and

5	10th, and a docket issued on April 9th to that

6	effect.	According to the documents on the

7	Court's file, that docket was mailed to the L.s.

8	The Petitioner's counsel did

9	not hear from the L.s at all since the November

10	20th appearance.	Counsel for the child advised

11	the Court that she attempted to contact them by

12	sending letters, and on one occasion by trying to

13	phone them.	These attempts were unsuccessful.

14	Counsel never got an answer to her letters.	I

15	can appreciate that it might have taken some time

16	for the L.s to make decisions about retaining new

17	counsel, or representing themselves, after their

18	former counsel got off the record.	Certainly up

19	to that point they were engaged in this matter,

20	they had filed materials suggesting that they

21	would strongly oppose the application to dispense

22	with their consent, and indeed had a very

23	different version of what happened since October

24	2007.

25	I have no way of knowing why

26	they did not seek leave to appear by phone,

27	appear themselves, send an agent, or even contact

1	counsel or the Court about this matter, and I

2	cannot speculate about those reasons.	In the

3	absence of any indication that they wanted or

4	needed to have this matter adjourned, I decided

5	that it should proceed.

6	The first thing I must do in

7	deciding this matter is to decide on what factual

8	basis the application to dispense with consent

9	must be decided.	This is because of the

10	significant conflict in the evidence about how

11	the child came to live with the S.s, contrary to

12	what the 2007 Order of this Court stated, and the

13	conflict in the evidence about why there has been

14	little to no contact between the L.s and the

15	child since December of 2010.	On Ms. S.'s

16	version, she acted out of concern for the child,

17	and since then the L.s have shown no interest in

18	the child and have taken no steps to stay in

19	touch with her.	On the version set out in the

20	L.s' affidavit, Ms. S. took advantage of an

21	access visit to unilaterally change the

22	day-to-day care situation and then actively

23	blocked the L.s' attempt have contact with the

24	child.	The conduct described in the L.s'

25	affidavit, if established to be true, would be

26	highly reprehensible and in direct violation of

27	the October 2007 Order.	Such conduct would in

1	and of itself be a reason to dismiss the present

2	application, and indeed may have a serious

3	bearing on the adoption process itself.

4	Parental alienation is

5	something that the Courts view as a very serious

6	matter and militates against allowing the

7	alienating party to gain any benefit from such

8	conduct.	Because the L.s did not participate in

9	this hearing, the only viva voce evidence I have

10	is the evidence of Ms. S.	As I noted, there were

11	aspects of that evidence where there were

12	inconsistencies between what is in her affidavit

13	and what she said in court.	Internal

14	inconsistencies sometimes have an impact on the

15	reliability of the witness's evidence.	But

16	Ms. S. was very firm in her denial of the

17	allegations made in the L.s' affidavit.	In

18	particular, she firmly denied the allegation that

19	she cut off contact to the child during the

20	access visit and the inferred allegation that she

21	took active steps not to be reachable, not to

22	answer phone calls, or otherwise prevent the L.s

23	from having access to the child.	She did admit

24	that she unilaterally decided that the day-to-day

25	care of the child should be changed and was not

26	going to return the child notwithstanding the

27	Court Order.	Although not following Court Orders

1	is not usually something that enhances a person's

2	credibility, generally speaking, Ms. S.'s candour

3	in that respect, to me, lends some credence to

4	her denial as far as having done some of the

5	other things that the L.s allege that she did.

6	There are also things about

7	the L.s' evidence that is somewhat problematic

8	from my point of view, especially because I did

9	not get an opportunity to have those things

10	explained by them.	First, they depose that they

11	took steps to get legal assistance in early 2011

12	to have the child returned to them.	There is no

13	evidence or trace of anything having occurred by

14	way of a legal application to secure the return

15	of the child, and this is surprising.	In

16	situations where a party breaches a Court Order

17	and attempts to unilaterally change things like

18	who has day-to-day care of a child, applications

19	to have children returned are usually made

20	quickly and often are made ex parte.

21	Unfortunately, situations where people attempt to

22	circumvent Court Orders and make these types of

23	unilateral changes are not unheard of.	It would

24	be surprising to me, if the L.s did seek legal

25	advice on this, that nothing would be done to

26	take immediate action to ensure compliance with

27	the 2007 Order.	I cannot speculate about what

1	happened, but I simply note that this is somewhat

2	surprising.

3	The second concern stems from

4	the evidence about the custom adoption process

5	that the L.s undertook.	On the document which is

6	attached as an exhibit to the L.s' joint

7	affidavit, I note that the name of the father of

8	the child was left blank.	This is odd because

9	this is not a case where the identity of the

10	child's father is unknown.	On the contrary, the

11	father, child, and mother at one point all lived

12	in Tulita.	Further, it is also stated on the

13	form that the date of the custom adoption is the

14	date of the child's birth, which on its face

15	would suggest to the reader that the L.s assumed

16	care of this child from the very start of her

17	life on a full-time basis.	Again, this does not

18	quite fit with the evidence that I have heard and

19	certainly does not reflect that there were in

20	fact proceedings regarding custody in 2007.

21	Finally, the form appears to

22	have been submitted to the adoption commissioner

23	in June 2011 and filed with the Court in July

24	2011, at a time where the child had not been

25	living with the L.s for over six months.	None of

26	these things were disclosed when the custom

27	adoption form was completed, and that is of

1	concern.

2




The standard of proof in a


3	non-criminal matter is balance of probabilities.

4	The party who makes an assertion that advances

5	his or her case must prove that assertion on that

6	standard.

7	On the whole of the evidence

8	before me, I find it more probable that events

9	transpired in the manner described by Ms. S. than

10	the version that is outlined in the L.s'

11	affidavit.	I do not have the benefit of viva

12	voce evidence from the L.s, I only have their

13	affidavit, and that affidavit leaves many

14	questions unanswered, which I have already

15	referred to.	I also find there is no reason, on

16	the record before me, to reject Ms. S.s' strong

17	denials of having actively prevented the L.s from

18	having contact with the child.	Despite some of

19	the inconsistencies in her evidence, which I have

20	noted, I do not consider they are the types of

21	inconsistencies that taint her evidence as a

22	whole.

23	So for the purpose of dealing

24	with the present application, and given the whole

25	of the evidence, I find that the following facts

26	have been established on a balance of

27	probabilities:	First, the child has been

1	residing with the S.s continuously since December

2	of 2010.	Second, the circumstances of this

3	change in the day-to-day care of the child arose

4	because of Ms. S.'s concern about the child not

5	being in school, and this was communicated by

6	Ms. S to the L.s at the time.	Third, the L.s may

7	not have explicitly agreed to the child staying

8	in Yellowknife, but they took no steps to have

9	the October 2007 Order enforced to compel the S.s

10	to return the child to them.	To that extent,

11	they, at the very least, acquiesced to the change

12	in day-to-day care of the child.	Fourth, there

13	has been very limited contact between S.L. and

14	W.L. and the child since December 2010.	Fifth,

15	there have been no in-person visits between the

16	L.s and the child in this period of time.

17	Whatever the reasons were for the lack of

18	contact, I find as a fact it has not be due to

19	Ms. S. actively preventing it or evading attempts

20	by the L.s to have contact with the child.	As

21	far as the child's biological mother, there has

22	been no contact between them since before

23	December of 2010, and I do not find it possible

24	to determine when that last contact was.	I also

25	find that the last time the mother had contact

26	with the S.s was in that phone call in September

27	2014 at a time where she was angry, possibly

1	intoxicated, and in circumstances where it would

2	not have been in the best interest of the child

3	to actually have any contact with her.

4	As I have noted at the outset,

5	this application is governed by Section 13 of the

6	Adoption Act.	Paragraph 13(1) of the Act reads

7	as follows:

8	Where the consent of a parent is

9	not produced at the hearing of a

10	petition or where a parent has

11	revoked his or her consent, the

12	court may order notice of the

13	petition to be served on the parent

14	and the court may dispense with the

15	consent of the parent in the

16	following circumstances where the

17	Court considers that it is in the

18	best interests of the child to do

19	so:

20	(a) the parent has, with the

21	knowledge that he or she is

22	the parent of the child,

23	demonstrated an attempt to

24	forego the rights and responsibilities

25	of a parent in respect of the

26	person of the child;

27	(b) the parent fails to appear

1	at the time and place stated

2	in the notice;

3	(c) the parent appears and

4	objects to giving consent on

5	grounds that the court

6	considers insufficient;

7	(d) the court, for reasons

8	that appear to be sufficient

9	to the court, considers it

10	necessary or desirable to

11	dispense with the consent of

12	the parent.

13	Paragraph 2 creates a

14	presumption that a parent has demonstrated the

15	intent to forego the rights and responsibilities

16	of the parent in certain circumstances.

17	Another important provision to

18	keep in mind is Section 3 of the Act because it

19	provides additional clarification as to what

20	factors are to be considered when considering

21	what is in the best interests of the child.

22	Section 3 applies to the Act as a whole and reads

23	as follows:

24	Where there is a reference in this

25	Act to the best interests of a

26	child, all relevant factors must be

27	taken into consideration in

1	determining the best interests of a

2	child including the following

3	factors, with a recognition that

4	differing cultural values and

5	practices must be respected in

6	making that determination:

7	(a) the child's physical,

8	mental and emotional needs,

9	and the appropriate care or

10	treatment to meet those needs;

11	(b) the importance for the

12	child's development of a

13	positive relationship with a

14	parent and a secure place as a

15	member of the family;

16	(c) the child's cultural,

17	linguistic and spiritual or

18	religious ties or upbringing

19	and the importance of a family

20	environment that will respect

21	the child's cultural and

22	linguistic heritage and

23	traditions and religious or

24	spiritual background;

25	(d) the child's views and

26	preferences, if they can

27	reasonably be ascertained;

1	(e) the parent's views and

2	preferences;

3	(f) the family or extended

4	family relationship between

5	the child and each person

6	seeking to adopt or receive

7	the placement of a child.

8	The L.s are not the biological

9	parent of this child but are captured in the

10	definition of "parent" at Section 1 of the Act,

11	given the October 2007 Order.	The word "parent"

12	is defined in paragraph (c) of the definition as

13	the person who has lawful custody of the child,

14	other than the Director of Child and Family

15	Services.	The L.s do not have de facto custody

16	of the child, but by virtue of the 2007 Order

17	they have joint custody of her and her day-to-day

18	care.

19	As illustrated in the case of

20	D.M.M, 2008 ABQB 564, different jurisdictions

21	have provisions dealing with the dispensation of

22	consent of a parent in the adoption context.

23	They describe the applicable test and factors in

24	different ways.	The common thread is the

25	paramount consideration given to the best

26	interests of the child in making that decision.

27	The step of granting an application to dispense

1	with the parent's consent to an adoption is a

2	significant one, given the finality of an

3	adoption process that is ultimately completed.

4	That process results in a severance of the ties

5	between the parent and the child.	These are very

6	significant consequences for the parent, but also

7	for the child.

8	I agree with the comments in

9	D.M.M at paragraph 25 that the Court must examine

10	whether there would be a positive contribution to

11	the welfare of the child by dispensing of the

12	consent.	In that case, the Court dismissed the

13	application because it concluded that the child

14	was in a win/win situation.	The biological

15	father, while not parenting the child, was

16	providing financial support for the child and

17	hoped to one day re-establish a relationship with

18	the child.	The child had a very positive

19	relationship with his step father, who was the

20	party wishing to adopt.	The family unit was

21	stable, and there was no suggestion that not

22	dispensing with the father's consent would create

23	any risk of uncertainty or deprive the child from

24	that stable secure environment.

25	In the British Columbia case

26	(re) British Columbia Birth Registry No.

27	2006-59-039958, 2010 BCCA 137, the decision of

1	the chambers judge to dispense with consent was

2	overturned on appeal precisely because the Court

3	of Appeal found that the chambers judge had not

4	recognized the strictness of the test to be

5	applied in such matters, nor the need for serious

6	and important reasons to justify dispensing with

7	consent.	The situation in that case was not

8	entirely unlike this one in the sense that both

9	biological parents had significant personal

10	issues and the child was in the care of the

11	paternal grandparents.

12	The mother had struggled with

13	drug addictions but had always expressed the wish

14	to be a part of her child's life.	Fresh evidence

15	adduced at the appeal was that by then she had

16	been drug free for two years.	The chambers judge

17	had found she was capable of looking after her

18	child if she stayed away from drugs but was

19	concerned that she may not be able to do so.	The

20	mother was not seeking to have the child removed

21	from the grandparent's care but simply did not

22	want to agree to the adoption because she did not

23	want her ties to her child to be severed

24	permanently.	The Court of Appeal found that

25	there was no question that the grandparents were

26	providing a safe, stable, and secure environment

27	for the child.	It found that the chambers judge

1	was correct to consider the importance of

2	permanence, continuity, certainty, stability, and

3	security for the child, but had given those

4	factors undue weight while placing insufficient

5	weight on the significance of the child being

6	able to maintain ties with his parents.

7	There are similarities between

8	the situation in that case and this one, but

9	there are also some differences.	As far as the

10	biological mother is concerned, she had not

11	demonstrated a continued desire to eventually

12	resume caring for this child.	There is no

13	evidence about her current situation or about any

14	progress she might have made towards dealing with

15	her drug issues.	Her parents' affidavit confirms

16	at paragraph 36 that she is someone who is

17	troubled with alcohol and drugs.

18	The L.s are in a different

19	situation.	They were part of the child's life

20	for the first five years of her life and have

21	taken an active role in parenting her.	Under an

22	existing order from this Court, they are the ones

23	who were given the day-to-day care of that child

24	and they have initiated the process to have the

25	child recognized as having been custom adopted by

26	them.	On the other hand, they have not appeared

27	on this application.	They have taken little to

1	no steps to have contact with the child since

2	December 2010.	They have taken no legal steps to

3	get this Court to enforce the day-to-day care

4	provision of the 2007 Order.	I do appreciate

5	that they reside in Tulita, which makes contact

6	more challenging than if they were in

7	Yellowknife, and that they may also find

8	accessing the Court more challenging than if they

9	were in Yellowknife.

10	I also appreciate that their

11	counsel got off the record in the fall of 2014,

12	which placed them at a disadvantage in relation

13	to these proceedings, but I have to balance that

14	against the fact that they were involved in the

15	court proceedings that led to the 2007 Order.

16	They were able to retain counsel to respond to

17	this application initially.	By all accounts,

18	they were aware of how to proceed to bring

19	matters to court.	They are not complete

20	strangers to court proceedings, and there is no

21	explanation for why they have not participated at

22	all in this hearing, knowing what it was about.

23	Similarly, there is no

24	explanation for why they did not respond to the

25	correspondence sent to them by counsel for the

26	child who was trying to engage them in a dialog

27	about this matter.	And speaking of that, I must

1	also take into account the evidence presented and

2	submissions made by that counsel who was

3	appointed to represent this child.	Counsel has

4	made submissions in favour of granting this

5	application to dispense with the consent of the

6	biological mother and the maternal grandparents.

7	I understand that position to be based on several

8	factors:	The child is thriving in her current

9	environment; is involved in numerous activities;

10	has the support she needs in school, given some

11	of her special needs; has expressed to counsel

12	that when she lived in Tulita there was nothing

13	for her to do and she was not involved in any

14	particular activities.	She has also expressed

15	that she wishes to stay in Yellowknife and she

16	wishes to continue living and being cared for by

17	her paternal grandparents.

18	The wishes of the child must

19	be taken into account, if ascertainable, but with

20	some caution, especially dealing with a child as

21	young as this one.	That concern was explained in

22	J.C.S v. C.B.R.S, 2011 ONCJ 191, and I agree with

23	the comments made in that case, and in particular

24	the statement at paragraph 28, that the

25	responsibility of severing the child's

26	relationship with her parent - and in this case

27	her grandparents - should not rest on the

1	shoulders of a young child.	That said, those

2	wishes are before the Court and should be

3	considered along with other factors.

4	There are aspects of the

5	evidence of Ms. B. that relate to what might be

6	best for this child in the long run, and in that

7	sense those may not be directly related to the

8	application now before me.	However, her evidence

9	about observations that she made of the child

10	when she first started attending school

11	corroborates the evidence of Ms. S. about the

12	fact that the child had not been attending school

13	regularly in Tulita.	In addition, although

14	stability would be important for any child,

15	Ms. B.'s evidence does suggest that in the case

16	of this child it is particularly important that

17	there be stability and a routine and a structured

18	environment around her.

19	Going back to the

20	circumstances specifically referred to in Section

21	13 of the Act, when it comes to an application

22	like this one, and I am dealing now with the

23	application as it relates to the biological

24	mother, one of the circumstances listed is the

25	failure to attend the hearing.	The biological

26	mother has not attended the hearing, and indeed

27	has not participated at all in these proceedings

1	at any point or responded to this application in

2	any way.

3	Another circumstance referred

4	to in the provision is where the parent whose

5	consent is the subject of the application has

6	demonstrated an intent to forego the rights and

7	responsibilities of a parent in respect of the

8	child.	The mother has not filed any evidence,

9	but the evidence I do have from the other parties

10	and even from her own parents is that she has not

11	had contact with the child for a long time.

12	As for evidence of where

13	things were at as far as her substance abuse

14	issues, there's nothing to suggest any

15	improvement or change since the time when she

16	consented to the day-to-day care of the child

17	being with her parents and not herself.

18	Finally, her whereabouts are

19	unknown to the point that the Court was satisfied

20	that an order for substitutional service ought to

21	issue in relation to the application.

22	Practically speaking, this means obtaining her

23	consent could be highly problematic.	For those

24	reasons, in my view, not dispensing with her

25	consent would not be in this child's best

26	interest.

27	As far as dispensing with the

1	consent of the maternal grandparents, again, the

2	failure to attend the hearing is a circumstance

3	that applies to them and must be considered, even

4	taking into account some of the challenges that

5	people who do not reside in Yellowknife may face

6	in participating in court proceedings.	As far as

7	the intent to forego parental rights and

8	responsibilities, the lack of contact since

9	December 2010 is a concern, but I'm not persuaded

10	that it establishes that the maternal

11	grandparents have demonstrated an intent to

12	forego their rights and responsibilities when I

13	consider the whole of the circumstances,

14	including their participation in the proceedings

15	that led to the October 2007 Order, their

16	participation in these proceedings up to the fall

17	of 2014, and the steps they took in 2011 with

18	respect to the custom adoption process.

19	When I look at all of that,

20	I'm not satisfied it can be said they have

21	demonstrated an intent to forego their rights and

22	responsibilities as parents.

23	Another circumstance referred

24	to in Section 13 is when the Court finds that the

25	grounds for objection to giving the consent are

26	not sufficient.	Here, the L.s did not appear and

27	I do not have the benefit of their submissions

1	articulating what their grounds might be not to

2	give consent.	That said, I think those grounds

3	can be inferred from what is in their affidavits.

4	They would include not wanting to sever their

5	legal ties to the child, the detrimental effect

6	that it could have in the long run, the need to

7	ensure that she remains exposed to the aboriginal

8	side of her heritage, among others.

9	Counsel for the S.s noted that

10	there is no reason why granting this application

11	would result in severing the ties with the

12	maternal grandparents because Ms. S. has

13	testified she would be quite willing to

14	facilitate contact if the maternal grandparents

15	wish to see this child.	But I do not think that

16	is the point, really, as far as the concerns

17	expressed in the case law about the risk of

18	severing the ties.	The concern is severing the

19	legal ties and the prospect that the adoptive

20	parents will have complete control over whether

21	the relationship is maintained or not.

22	It's difficult for me to

23	assess whether the grounds why the L.s may not

24	want to consent to this adoption are sufficient

25	or not sufficient given their lack of

26	participation in this hearing.	So, on the whole,

27	I don't think I can say that it's been

1	established that whatever grounds they have are

2	insufficient.	Overall it seems to me the issue

3	does boil down, as the Court put it in D.M.M., to

4	whether there would be a positive contribution to

5	the welfare of this child by dispensing with the

6	consent of the L.s as part of this adoption

7	process.	This, of course, taking into account

8	the factors listed in Section 3 of the Act, which

9	I have referred to already and which I have

10	considered.

11	Counsel for the S.s argue that

12	it is in the best interest of this child to have

13	permanent clarity and stability as far as where

14	she is going to be living, growing up, and

15	attending school, and knowing who has the

16	responsibility of caring for her.	Counsel for

17	the child makes the same argument.	Counsel argue

18	that given the overall circumstances of this

19	case, the fact that neither biological parent is

20	taking an active role in caring for the child,

21	given the earlier legal proceedings and the

22	uncertainty that may stem from the custom

23	adoption process, there is, in fact, much

24	uncertainty at this point, and this uncertainty

25	is not good for the child who is now well settled

26	in Yellowknife and needs to know that she is in

27	the care of the S.s for good without any

1	possibility of circumstances causing her to be

2	forced to go back to live in Tulita.

3	After careful consideration, I

4	think it comes down to this:	if this application

5	is not granted, the L.s will have an ability to

6	veto the adoption process.	In other words, if

7	this application is not allowed, it will for sure

8	be the case that this adoption cannot proceed

9	unless they consent to it.	On the other hand, if

10	the application is granted, it does not

11	necessarily follow that an adoption order will

12	ultimately be granted.	Under the Act, an

13	adoption order can only be made if the Court is

14	satisfied that the adoption order is in the best

15	interest of the child.	Those interests have to

16	be considered at the stage that I am dealing with

17	today, but they also have to be considered at the

18	stage where the issuance of an adoption order

19	would be sought.	Granting this application does

20	not in itself sever the legal ties between the

21	child and her mother and her maternal

22	grandparents.	It simply takes away their ability

23	to put a unilateral stop to the adoption process

24	that the paternal grandparents have undertaken.

25	Assessing the child's best interests at this

26	stage, I conclude that this situation is

27	different from the situations assessed in the

1	various cases that I was referred to and where

2	the decision was to not dispense with consent.

3	In my view, the overall context here is such that

4	it would not be in this child's best interests to

5	have her biological mother and maternal

6	grandparents be in a position to block or veto

7	the adoption process.

8	I'm satisfied that even taking

9	into account the very strict test that applies to

10	an application under Section 13 of the Adoption

11	Act and the need for serious grounds to be

12	established before such an application can be

13	granted, the test is met here.	I have reached

14	this conclusion based on the overall

15	circumstances and the findings of facts that I

16	have made, the provisions of the Act, the

17	Respondents' failure to attending the hearing,

18	and also the maternal grandparent's failure to

19	respond to the attempts made by the child's

20	counsellor to engage them in communication about

21	this matter.	But that finding is not

22	determinative of the ultimate finding as to

23	whether the Court will be satisfied, when matters

24	reach the stage of an adoption hearing, that an

25	adoption order is in the best interest of this

26	child.	Many aspects of the submissions that I

27	heard yesterday actually go to that issue, as

1	opposed to the dispensation of consent issue, and

2	I think those submissions will have to be

3	presented again at a later time.	But I want to

4	make it clear that in addition to complying with

5	the various steps that are set out in the Act, I

6	think that there are very real issues in this

7	case that will need to be specifically addressed,

8	and I want to mention them now so that everyone

9	is on notice that I view them as issues that will

10	have to be addressed through evidence or

11	submissions or a combination of the two.

12	One thing that is not for me

13	to entertain today, but was part of the

14	submissions that were made yesterday, and will be

15	a central issue, is this:	why does the mechanism

16	of adoption, which would sever all legal ties

17	between the child and her mother and her maternal

18	grandparents, need to be resorted to here, as

19	opposed to other mechanisms such as an

20	application to vary the existing custody order to

21	change not only the day-to-day care to reflect

22	the current situation, but also possibly place

23	the child in the sole custody of her paternal

24	grandparents, for example.	I think that issue

25	will have to be addressed at later stages in

26	these proceedings.

27	Another issue that I think

1	will have to be addressed thoroughly is the

2	effect of the custom adoption process undertaken

3	by the maternal grandparents and the fact that

4	according to the exhibit to the L.s' affidavit,

5	the aboriginal custom adoption application was

6	actually filed in this Court and it appears a

7	certificate was issued in July 2011.

8	A third issue that is somewhat

9	related to the first one is, what is the effect

10	of the existing custody order that no one, to

11	date, has taken any steps to vary?	The existing

12	order is in direct conflict with the ultimate

13	objective of this Petition.

14	Another issue that I noted

15	when I was reviewing materials is that there does

16	not appear to be any evidence before the Court

17	that paragraph 8 of the Consent Order from 2007

18	was complied with.	Paragraph 8 of the Consent

19	Order states that the parties shall refer any

20	disputes between them pursuant to this Order to

21	mediation before resorting to legal proceedings

22	to resolve the dispute.	That was part of this

23	Court's Order, and as everyone realizes, the

24	Court is concerned about its own Orders being

25	followed.	So I think that's an issue that will

26	have to be addressed.

27	For all those reasons, if an

1	application for an Adoption Order is to be made,

2	that application should be made on notice to the

3	Respondents even though I have granted today's

4	application.	Also I think it would have to

5	proceed on the record and not in the way that

6	uncontested adoption Petitions normally proceed.

7	I make these comments, and I

8	hope everyone realizes, not in the spirit of

9	having prejudged any of these issues, but because

10	they are issues that arose in my mind as I

11	reviewed these materials.

12	I do not consider myself

13	seized with this matter, but the transcript of my

14	reasons will be on the Court file.	I think those

15	are some of the things that would have to be

16	addressed in order to assist the Court in making

17	a final determination if an adoption Order is

18	sought.	There might be others.	It will be,

19	obviously, for the judge who deals with the

20	application to decide.

21	But for today's purposes I

22	will issue the following order:	I will ask you

23	to prepare the order, Ms. Paradis.	First, the

24	application to dispense with the consent of the

25	respondents pursuant to Section 13 of the

26	Adoption Act is granted.	Second, the hearing of

27	the Petitioner's application for an adoption

1	order shall take place on notice to the

2	Respondents.	Third, a copy of this order shall

3	be served on the Respondents.	As well, a copy of

4	the Order appointing counsel and the Order

5	amending that Order should be served on the

6	Respondents.

7	Now, I think probably,

8	procedurally, it is likely that given some of the

9	issues to be addressed, unless an agreement can

10	be reached, this matter will require a further

11	special chambers hearing.	If the application is

12	made it probably should be initially returnable

13	in regular chambers, so in the usual way, as

14	opposed to trying to move directly to setting a

15	date.	I do not think that needs to be part of

16	the order, it is just what I think would be the

17	most logical way to proceed.	I know there are

18	other steps that have nothing to do with anything

19	I've said, and the timing is probably a variable

20	or an unknown at this point, but this is how this

21	matter should proceed from here.

22	Do you require any

23	clarifications, Ms. Paradis?

24	MS. PARADIS:	I don't believe so, Your

25	Honour.

26	THE COURT:	All right.

27	And what about you,

1	Ms. McIlmoyle?

2	MS. MCILMOYLE:	No, Your Honour.	Thank you.

3	THE COURT:	Thank you for your

4	submissions, counsel.	This concludes this

5	application.

6	(PROCEEDINGS CONCLUDED)

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1	CERTIFICATE OF TRANSCRIPT

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5	I, the undersigned, hereby certify that the

6	foregoing pages are a complete and accurate

7	transcript of the proceedings taken down by me in

8	shorthand and transcribed from my shorthand notes

9	to the best of my skill and ability.

10	Dated at the City of Edmonton, Province of

11	Alberta, this 25th day of June, 2015.

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17	__________________________

18	A. Willard, CSR(A)

19	Official Court Reporter

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