In I.W. v. Kasohkowew Child Wellness Society, the Alberta Court of Appeal dismissed the appellents’ (non-Aboriginal foster parents) appeal for guardianship of an aboriginal child from Samson Cree Nation but granted a re-hearing for their application for contact with the child.
Appeal by IW and BW from the dismissals of their applications for guardianship and parenting of and contact with a six-year-old First Nations child who had been in their foster care for three and one-half years. The child was placed in the appellants’ home in March 2005. Her siblings were also subject to guardianship orders. In August 2008, the Society, the child’s permanent guardian, advised the appellants that the child would be removed from their care and placed with her siblings with a view to eventually placing the child with relatives on the Samson Cree Reserve. The appellants were unsuccessful in having the placement decision reviewed. They requested the child’s removal by the end of June 2009. The child was removed and placed with her siblings. In January 2010, the child and two siblings began the process of relocating to their relatives’ home. In August 2010, the children were placed full-time with their relatives. After the child’s removal, a psychologist recommended against unsupervised access by the appellants in part because of alleged inappropriate physical contact. The police investigated and no charges were laid. The appellants obtained a pre-trial order requiring the Society to disclose any documents upon which it intended to rely in their applications for guardianship, parenting and contact. In the application, the appellants led expert evidence from a psychologist recommending the placement of the child in their care. The psychologist considered the child’s separation from the appellants detrimental. The Society led evidence from its psychologist. She testified that it was better to place the child with relatives and siblings on the reserve to prevent the child from becoming alienated from her culture, community and family. She had no problem with the appellants having unsupervised access. The child’s caseworker considered unsupervised access inappropriate. The judge found that the child had bonded with the appellants. She found that no inappropriate physical contact had occurred. Further, she accepted that reintegration of the child into a stable family in her cultural community was a priority, outweighing the child’s attachment to the appellants. The judge went on to find that the appellants failed to prove that a contact order was reasonable in all the circumstances. The appellants sought to adduce fresh evidence on appeal in the form of an assessor’s letter. The assessor concluded that there was no merit to the allegation of inappropriate physical contact and suggested that it was inappropriate for the Society’s expert to have rendered an opinion about custody and access without having completed an assessment.
HELD: Appeal allowed in part. Given the judge’s finding that no inappropriate physical contact occurred, the fresh evidence on this point could have had an impact on the outcome of the application. The judge was aware of the extent of the Society’s expert’s involvement with the children as their therapist. No ethical issues formed the basis of the judge’s decision. The appeal relating to the guardianship and parenting application was dismissed. There seemed to be a gap in the judge’s reasons for concluding that a contact order was not appropriate, given that both experts testified that contact would not be inappropriate. Factual findings on this issue were necessary, requiring a re-hearing on the merits of the contact issue.
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