A man who has been fighting for custody of his son for nearly two years, after the child was taken away from him in the hospital shortly after his birth, will get to take his son home.
The child, who cannot be named under the Child, Youth and Family Enhancement Act, had been in the custody of Child and Family Services since his birth in January 2013. The father, who is aboriginal, has been allowed weekly supervised visits.
On Monday, Judge John Holmes ordered the son to be returned to his father immediately.
The father, whose name is also protected by the same provisions, was in Red Deer provincial court on Monday seeking to gain custody. The child had been under a temporary guardianship order.
The hearing was held after an application was made seeking a permanent guardianship order, putting the child in the care of Child and Family Services. The father said he signed the temporary guardianship order but has since regretted doing so.
The father’s counsel, Andrew Phypers, said his client has no history with child welfare and has no criminal record, but had been denied custody since the day his son was born.
Listed as the father on the birth documents at the hospital, the man was not deemed a parent after the child was taken from his mother. The mother has been deemed unfit to be a guardian for the child.
However, the father named the child, Phypers said. The lawyer also said the mother has had no contact with the child and is an addict.
Phypers argued there should have been a presumption of parentage for the father before that child was taken into custody. The man had to undergo a DNA test to prove he was the child’s father.
He then had to undergo a parenting capacity assessment. It was the outcome of that assessment that led Child and Family Services to seek the permanent guardianship order. The order would have put the child into foster care.
The report indicated that the father, whose first language is not English, has a low IQ and had difficulties with hearing and seeing, which could lead to difficulties with raising and caring for the child.
Shari Lewis, counsel for Child and Family Services, also said the assessment indicated that the father would have difficulty responding to unexpected circumstances.
Alcohol use was an issue. The father has never been in legal trouble as a result of drinking, but the mother of the child said their relationship deteriorated because of the father’s drinking. On the stand, the father admitted to drinking but said it was because of the stress of the almost two-year battle to gain custody of his son.
Phypers said there were flaws in the assessment of the father. The assessment relied on psychometric testing, a measure of a person’s skills, knowledge, abilities, attitudes and personalities traits. Phypers said the assessment did not draw on the observations of the supervisor who oversaw visits the father had with his son.
These visits, Phypers said, challenge the assessment as they give glowing reviews of the father’s parenting ability.
Phypers expressed his client’s frustration with the process, saying he first had to prove he was the child’s father and then had to prove he could be a parent.
Lewis expressed concerns about alcohol, saying even if the stress of gaining custody of his child goes away, raising a child has its own stresses. But she was also concerned that the father missed visits this year.
In his testimony, the father said there were many times he felt like giving up the fight to gain custody, but he was in court Monday continuing his fight.