Ruling denies father's request for psychological assessment of his daughter
In dismissing a father’s appeal seeking access to his daughter, the Saskatchewan Court of Appeal decided parens patriae jurisdiction did not apply because the provincial Adult Guardianship and Co‑decision-making Act, 2000 (AGCA) governed the issues in the case.
The case of Aalbers v Aalbers, 2024 SKCA 83 revolved around a daughter with Down syndrome who was in her twenties. After her parents’ separation, she initially lived with her mother. She later moved in with her father and stayed with him for around seven years.
At her request, she moved into a group home in August 2019 with the support of the Community Living Services Branch of the Ministry of Social Services. She then cut off contact with her father and two of her siblings.
The father alleged that his daughter’s decision to sever ties with his side of the family was influenced by her mother, one of her brothers, and other family members. That side of the family was using her as a pawn in the family dispute, he claimed.
In November 2019, the father applied under the AGCA for his appointment as his daughter’s personal guardian under s. 6, her co-decision maker under s. 14, and her property guardian under s. 40. He also requested a court order for her psychological assessment under s. 12(2). He argued that she lacked the capacity to make personal decisions.
He likewise sought access to the daughter through the court’s parens patriae jurisdiction or under s. 27 of the AGCA, which allowed the court to order access to an adult by someone other than their personal decision-maker if it would be in the adult’s best interests.
The father also invoked ss. 12 and 13 of Saskatchewan’s Evidence Act, 2006. This legislation required an inquiry into the capacity of a witness to testify if their ability was challenged.
A chambers judge of the Saskatchewan Court of King’s Bench denied the father’s applications. The daughter, who had the capacity to make decisions for herself, chose not to have contact with the father or his group, the judge noted.
The Saskatchewan Court of Appeal entirely dismissed the appeal of the father. The appeal court rejected the father’s argument that it should use its parens patriae jurisdiction to permit him, and other specified members of the family, to access and speak with the daughter.
The appeal court confirmed that, under the AGCA, adults were presumed to have capacity unless proven otherwise and were entitled to make their own decisions, including the persons with whom they associated.
The appeal court refused to order a psychological assessment under s. 12(2) of the AGCA. The father’s guardianship application was incomplete because it lacked the evidence needed to proceed, specifically two Form J assessments from medical professionals, the appeal court ruled.
The appeal court found s. 27 of the AGCA inapplicable. This provision would only apply after the appointment of a personal decision-maker, which had not happened in the daughter’s case, the appeal court concluded.
Though the chamber's judge made errors, including by failing to address the issue of the daughter’s capacity under the Evidence Act, these errors did not change the outcome of the case, the appeal court found. The issue under the Evidence Act was moot, the appeal court noted.
