In MD Alberta (Director of Child and Family Services), 2024 ABKB 565 (“MD”), the Court of King’s Bench of Alberta recently dismissed a habeas corpus application in a child custody dispute. In doing so, the Court emphasized that habeas corpus is not an appropriate remedy for guardianship disputes or enforcing access rights for children.
The literal meaning of habeas corpus is “you have the body”, which is a fundamental legal principle that protects against arbitrary detention and imprisonment. As a legal action, habeas corpus requires authorities to bring a detained person before a court to determine whether their imprisonment is lawful or not.
Initially, and following a 17-day trial in 2023, the Honourable Justice D’Souza of the Alberta Court of Justice found that the mother posed a “serious and ongoing risk” to the child with the possibility that the mother would inflict physical and emotional injury. In doing so, Justice D’Souza cited evidence of the Mother’s Factitious Disorder Imposed on Another (formerly Munchausen Syndrome by Proxy) and other “alarming behavior”, and ultimately concluded that the child should not be returned to the mother. Instead, Justice D’Souza issued a permanent guardianship order in favor of Child Family Services, stating that returning the child to the mother’s custody would “be so destructive and catastrophic” to the child.
Following this, the mother filed an application for writ of habeas corpus in order to have her child returned to her care, which was heard by the Honourable Justice Feasby on September 18, 2024. This application was put forth through an order from the Alliance of Indigenous Nations (AIN), which is an unrecognized fringe organization, which directed the return of the child and imposed a $100M penalty per year that the child was not returned.
In relation to the application itself, the mother put forward no affidavit or sworn evidence and, instead, relied solely on the order of AIN as well as an exhibit book of websites, articles, and other documents that she had pulled from the internet in seeking her child’s return.
Along with issues concerning the order from AIN, the Court was faced with a representation issue, as the mother was represented by an Ontario man named Glenn Bogue, known as “Spirit Warrior”. Glenn was assessed by the Court as a “pseudo-legal guru” who “should not be given a platform to advance pseudo-legal arguments”. Suspended in 2019 by the Law Society of Ontario after he was determined to be suffering from a “delusional disorder,” Glenn is a well-known legal charlatan and has attempted to represent AIN in front of courts in both Ontario and Newfoundland. The Court ultimately held that Glenn was not permitted to represent the mother.
In relation to the Application itself, Justice Feasby called the order from AIN a “fabrication designed to mislead the court and intimidate or defraud the Government of Alberta” and noted that AIN did not have the legal authority to issue binding orders. Further, Justice Feasby held that Justice D’Souza’s decision would stand unless overturned on appeal and that the habeas corpus application itself was not an appeal. This highlighted the unsuitability of using habeas corpus in situations of child welfare.
Interestingly, this was not the mother’s first habeas corpus application, as she had made one previously and also had a history of making applications and appeals that she either abandoned or were dismissed. In reviewing this history, Justice Feasby found there was sufficient evidence for the mother to be considered a vexatious litigant pursuant to Civil Practice Note 7 and asked that notice be provided to the Attorney General of Alberta.
Ultimately, the child involved is living with the mother’s half-brother and has expressed that she is happy and does not wish to be returned to the mother.
Bishop & McKenzie LLP has experienced family law lawyers who are able to provide practical and timely advice on family law related matters. For assistance, please contact our office.
Author: Faiza Khan, Associate