Alberta Court of Appeal grants leave to appeal in Indigenous child guardianship dispute

The Alberta Court of Appeal has granted leave to appeal in a case involving the guardianship of an Indigenous child.

The case concerned the child’s biological father, who challenged a decision granting permanent guardianship to the child's aunt and uncle. The appeal focused on whether lower courts correctly applied An Act Respecting First Nations, Inuit and Métis Children, Youth and Families.

The child, born in 2017, was removed from her mother’s care in 2018 and placed with the respondents under a Customary Care Agreement (CCA). The CCA, involving both parents, family members, and bands, allowed for the agreement’s termination with 90 days' notice. In 2021, the respondents sought permanent guardianship through the Family Law Act, which was supported by their band. However, the biological father opposed, seeking to have the child returned to his care, and in 2021, he revoked the CCA.

In 2023, the trial court granted the respondents’ guardianship application, finding it in the child’s best interests to remain with them. The court waived the father’s consent and considered that the Federal Act, which prioritizes family reunification and cultural preservation for Indigenous children, could apply. On appeal, the father argued that the trial judge misinterpreted the Federal Act by not giving adequate weight to family reunification and cultural connections. The Alberta Court of King’s Bench dismissed the appeal, finding no misapplication of the Federal Act and upholding the guardianship decision.

Seeking leave to appeal to the Alberta Court of Appeal, the father argued that the case raises significant legal questions about the interpretation and application of the Federal Act. He asserted that the act requires special consideration of Indigenous children's cultural needs and family ties and claimed that lower courts did not properly prioritize these aspects.

The Court of Appeal acknowledged that it had not previously addressed the Federal Act’s implications in similar cases, noting that the issues raised were significant and had precedential value. The court emphasized that determining whether the Federal Act alters the best interests test for Indigenous children in guardianship cases is a crucial question. It found the appeal to be arguable with a reasonable chance of success and not frivolous, although the outcome of the appeal remains uncertain.

Ultimately, the court granted permission to appeal. The case will now proceed to a full appeal, where a panel of the Alberta Court of Appeal will address these important legal questions.