MD v ALBERTA (DIRECTOR OF CHILD AND FAMILY SERVICES)

This Decision considered whether an Appeal from a Permanent Guardianship Order (“PGO”) should be dismissed for failure to perfect the Appeal, and whether the Court of King’s Bench had jurisdiction to entertain a Mistrial Application relating to proceedings in the Alberta Court of Justice.

Under s. 116 of the Child, Youth and Family Enhancement Act, RSA 2000, C-12, and ss. 5.4–5.5 of the Court Rules and Forms Regulation, Alta Reg 39/2002, an Appellant must order, pay for, file, and serve a transcript of the hearing under appeal within the prescribed time. Although MD obtained several extensions, she never ordered the transcripts.

Justice Dilts held that the transcript requirement is mandatory and cannot be satisfied by reliance on audio recordings. The Court further held that it lacked jurisdiction to compel the state to fund transcripts absent a properly brought Rowbotham Application on notice to the Attorney General, which MD repeatedly indicated she would bring but never did. Given the elapsed time, MD’s failure to take meaningful steps to perfect the Appeal, and the statutory priority placed on the child’s best interests, stability, and the avoidance of undue delay, the Appeal was dismissed.

MD also applied for a declaration of mistrial in respect of the PGO hearing, relying on Rules 9.12 and 9.13 and the Court’s inherent jurisdiction. Justice Dilts held that Rule 9.12 is limited to correcting accidental slips or omissions and does not permit substantive reconsideration of a final Judgment. Rule 9.13 permits a Judgment to be varied or reopened only in narrow circumstances and does not authorize collateral relief where a complete statutory appeal regime applies. The Court held that the Child, Youth and Family Enhancement Act establishes a complete code for appellate review of PGOs, and that MD’s recourse was to pursue her Appeal, which she failed to perfect.

In addition to its inherent jurisdiction, Justice Dilts relied on Rule 3.68, which permits the Court to set aside or stay an Application where circumstances warrant and the Application constitutes an abuse of process. Justice Dilts found that MD’s Mistrial Application constituted a collateral attack on the PGO Decision and an abuse of process. Accordingly, the Mistrial Application was set aside.