Nova Scotia (Community Services) v. J. D., 2011 NSSC 113

IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Nova Scotia (Community Services) v. J. D., 2011 NSSC 113 Date: 20110317 Docket: 061581 Registry: Sydney Between: Minister of Community Services Applicant v. J.D., J.H. Respondents LIBRARY HEADING Judge: The Honourable Justice Kenneth C. Haley Heard: April 16 th and 23 rd , June 23 rd and 28 th , October 14 th and 20 th , November 9 th , 26 th , 2010 and January 19 th and 20 th , 2011 in Sydney, Nova Scotia. Written Decision: March 17, 2011 Counsel: Ms. Tara MacSween, counsel for the Minister Mr. Alan Stanwick, counsel for Respondent, J.H. Mr.

Douglas MacKinlay, counsel for Respondent, J.D. Ms. Lisa Fraser Hill, guardian for the children, J.H., C.H. Subject: Family Law - Permanent Care

Summary: Issue: Final Disposition Review wherein the Minister of Community Services seeks a permanent care order

pursuant to Section 42 (1) (

f) of the Children and Family Services Act . Result: Permanent Care granted. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT ’ S DECISION QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Nova Scotia (Community Services) v. J. D., 2011 NSSC 113 Date: 20110317 Docket: 061581 Registry: Sydney Between: Minister of Community Services Applicant v. J.D., J.H. Respondents

Editorial Notice Identifying information has been removed from this electronic version of the judgment. Judge: The Honourable Justice Kenneth C. Haley Heard: April 16th and 23rd, June 23rd and 28th, October 14th and 20th, November 9th, 26th , 2010 and January 19th and 20th, 2011 in Sydney, Nova Scotia Counsel: Ms. Tara MacSween, for the Applicant Mr. Alan Stanwick, for the Respondent, J.D. Mr. Douglas MacKinlay, for the Respondent, J.H. Ms. Lisa Fraser Hill, guardian for the children, J.H., C.H.

By the Court: INTRODUCTION [1] This is the final Disposition Review wherein the Minister of Community Services, hereinafter called the Agency, seeks apermanent care order, without access, for the Respondents’ four children, namely, C.H., age 9,hereinafter referred to as C.H. (9), J.H.,age 10, C.H., age 6, hereinafter referred to as C.H. (6) and E.H., age 5, pursuant to Section 42 (1) (

f) of the Children and FamilyServices Act. [2] The Respondents oppose the Application and seek return of their children, or in the alternative request access in the eventpermanent care is ordered for their children. [3] Evidence was heard on April 16, 23, June 23, 28, October 14, 20, November 9, 26, 2010 and January 19, 20, 2011. [4] Due to the length of the proceeding complications developed throughout resulting in the statutory time lines as defined by theChildren and Family Services Act having been necessarily exceeded. [5] As a result the Court found, with the consent of counsel, that it was in the best interests of the children to exceed the statutorytime lines to afford the necessary time for the parties to present all relevant evidence and to permit the Court to fairly and properlyadjudicate upon the matter. [6] In the case D.C. v Family & Children Services of Lunenburg County and T.M.C. and C.L.G., (2006) 2006 NSCA 118, 249 N.S.R. (2d) 116 (NSCA) Justice Oland stated at paragraph 17 as follows:

“[17] However, the law is clear that exceeding that time limit does not always constitute an error of law. In Children’s Aid Society ofCape Breton-Victoria v A.M. 2005 NSCA 58 , [2005] N.S.J. No. 132, 2005 NSCA 58, in seeking to overturn an order placingher children in permanent care, the appellant parent argued first, that the judge had no jurisdiction to make a permanent care order oncethe section 45 (1) (

a) time limits had been reached, and second, if the judge had discretion to extend the time, he erred in doing sobecause he failed to consider whether the extension was in the best interests of the children. Cromwell, J.A. for this Court stated: [28] Turning to the first submission, there was no loss of jurisdiction here. The Court made this clear in Nova Scotia (Minister ofCommunity Services) v. B.F. 2003 NSCA 119 , (2003), 219 N.S.R. (2d) 4l (C.A.); [2003] N.S.J.

No 405 (Q.L.) (C.A.) Atparas. 57 and 58 and The Children’s Aid Society and Family Services of Colchester County v H.M. reflex, (1996), (NS CA), 155 N.S.R. (2d) 334 (C.A.). The Act contemplates that there will be a judicial determination of the child’s best interests. If a time limit, which is a milestone toward that determination, caused the Court to lose jurisdiction to determine the child’s best interestsit would contradict the purpose of the Act. Therefore, the Court did not lose jurisdiction by reserving its decision as to disposition forlonger than the time limits for temporary care orders under

section 45.” BACKGROUND [7] This matter initially came before the Court on November 21, 2008 where an Interim Order pursuant to Section 39 (4) (

e) wasmade in favour of the Agency on December 15, 2008. [8] A Protection Hearing was held on February 2, 2009 at which time the Respondents both consented to a protection finding forall four children under Section 22 (2) (

b) and (

i) of the Children and Family Services Act. [9] The Disposition Review Hearings held throughout 2009 were generally consented to by the Respondents, however the issueof access remained a matter of dispute between the parties and access was ultimately suspended in December, 2009. [10] A full hearing regarding the issue of access was held February 8, 2010.

On February 9, 2010, the parties reached consensus topermit both Respondents telephone access to their children and the Court so ordered. [11] The matter of access was again extensively reviewed by the Court on March 2 and 9, 2010 with an oral decision being renderedby this Court on March 16, 2010. [12] During the course of this Access Hearing the Court heard evidence regarding the boy’s behaviours, namely C.H.(9) and J.H,which identified them as being violent; aggressive; using profane language; committing dangerous acts, towards each other, such aspunching, kicking, throwing things; hoarding food and bed wetting. [13] It was the foster parent’s opinion these behaviours amounted to more than just “sibling rivalry” and that the boys required 24/7supervision.

The boys were then separated after which J.H’s behaviour began to improve. [14] C.H( 6) and E.H initially did not speak when placed in foster care in January 2009. The girls had major food issues in terms ofhoarding and nocturnal visits to the fridge. The girls had to be re toilet trained.

Improvement in the girls’ behaviour was noted in March2009, however regression in the their behaviour was observed both before and after access visits. [15] During the period March 2009 to November 2009 many different approaches were utilized by the Agency, in terms of thenumber of visits, location of visits and whether the children be kept together during the visits in an attempt to implement meaningfulaccess for the children. Unfortunately maintaining access on a consistent basis proved to be difficult. [16] The general theme of the access hearing evidence was that the initial visits with Ms.

D. were “chaotic and out of control”. There were concerns expressed about Ms. D.’s ability to intervene and take charge of the four children during the visits. Also, there wasconcern that Ms. D.’s focus was more on the girls and not the boys, which contributed to disruption in the room including a couple of

occasions when C.H( 9) reportedly grabbed his mother ’ s breast. Eventually C.H ( 9) was removed from the equation and granted solo visits with his mother. Visits were commenced at the maternal grandparent ’ s house allowing for the presence of C.H ’ s( 9) older step-brother, B. and the visits seemed to improve. Access was nonetheless suspended in December 2009. [ 17 ] Mr. H. had limited access to the children during this period. He visited with the children on December 29, 2008, January 5, 7 and 9, 2009. From all reports these visits went well. Mr.

H. was then unavailable for considerable time due to his incarceration for acts of domestic violence against Mrs. D. As a result of court ordered telephone access Mr. H. had telephone contact with C.H(9) and J.H on February 19, 2010. [ 18 ] The evidence was that the telephone call between Mr. H. and C.H( 9) went well and that J.H would not speak to his father.

The Agency, nonetheless, unilaterally determined that court ordered telephone contact with the two girls was not in their best interest based upon their assessment of the boy ’ s calls with their father. [ 19 ] Regarding the difficulties in establishing the court ordered telephone access this Court stated as follows on March 16, 2010: The Court was disappointed to learn of the delays with the Agency telephone access which was agreed to on February 9, 2010 regarding the agreement of telephone access: “I think the essence of the agreement was that there would be some sort of telephone access that would be happening this week and next week, so I would impress upon the Agency the importance of moving on this as quickly as possible” The Court expects no such further systemic delays from the Agency’s perspective from this point onward as time is short between now and the commencement of the Final Disposition Hearing on April 16, 2010. [ 20 ] At the Access Hearing, Agency counsel, urged the Court to limit or terminate access submitting that there was a direct link between the children ’ s negative behaviours and the access visits with Ms.

D. [ 21 ] Respondents ’ counsel submitted the contrary suggesting that the “ cause and effect relationship ” argued by the Agency was tenuous and that there could be other factors at play causing the negative behaviours, such as the very nature of the foster care relationship and/or the access visits coming to an end thereby causing “ separation anxiety ” . [ 22 ] The Court at this juncture had not been provided with any expert evidence in terms of the manifested negative behaviours of these children.

This Court expressed concern about the lack of such evidence and stated on March 16, 2010 as follows: “The Court has limited evidence as to the nexus between the conduct of the children and the cause of the reported behaviours. The Court is asked to speculate as to the cause and effect of the reported behaviours............” “The Court is, of course, concerned about the children’s behaviour subsequent to and surrounding access visits. It may ultimately be determined what the cause is, or that the cause cannot be identified with any certainty.

In that instance access may have to be viewed in a different light, but in the Court’s view it currently has insufficient evidence to rule as the Agency has requested.” [ 23 ] This Court ultimately concluded: The Court is not satisfied that continued access is not in the best interest of the children, at least not on this evidence. The Court has reviewed evidence from both Ms. D. and Mr. H., they are no longer a couple. They are individual parents who have demonstrated, from

the Court’s perspective, their individual love and commitment to these children. In the Court’s view, the children could benefit from the parents having an opportunity to reconnect with both of them individually and collectively as a family unit. If this access proves not to be in the best interests of the children, then it can be suspended and/or terminated, but at this juncture the Agency must re-assess, in the Court’s view, its function, particularly as it relates to

section 9 and

section 13 of the Act . [ 24 ] This Court thus ordered that the children have one on one “ in person ” access with both Ms. D. and Mr. H. as follows: The Court will thus order that Ms. D. and Mr. H. will have in person access with the four children. This will be supervised at the Agency’s office in *. The Court is recommending that the visits be once a week, and each parent have a visit once per week with the children. The Court has deliberated and thought at length regarding how this access should occur.

The Court is mindful of the behaviour which have been described in the evidence, particularly in relation to J.H who seemed to be acting out not only after the visit but before. The Court does not recall specific evidence relating to the girls overly acting out beforehand except for the evidence of Ms. MacCormick regarding her driving the girls to the visits. The evidence is clear that C.H (6) appeared to not be in anyway negatively affected by visits with the parents. As a starting point the Court recommends that each parent have in person access with the children on a one on one basis....

C.H’s ( 9) access will remain as is in addition to what the Court has just ordered. PERMANENT CARE HEARING EVIDENCE [ 25 ] The Permanent Care Hearing commenced on April 16, 2010. On that date the Court heard evidence from the following witnesses, namely: 1. Cadet Michael Ashford 2. Cst. Wayne MacDonald 3. Cst Todd Samson 4. Cst Charlotte Price 5. Jocelyn Keilty [ 26 ] Cadet Michael Ashford and Cst Wayne MacDonald testified that on July 13, 2010 they responded to a domestic call at XXX XXXXXX Road, *, Nova Scotia at approximately 8:30 p.m. Upon their arrival they noted people hollering and that the Respondent, Ms.

D. and her boyfriend, J. B. “ appeared upset ” with one another. Ms. D. was noted to have a cut to her facial area which was explained as “ an accident ” and was received when she was moving the fridge in the apartment. Mr. B. was co-operative and calm at the time so the police left and did no further investigation. [ 27 ] Cst. Todd Samson - was later called to the same address at approximately 10:45 p.m. on July 13, 2010. He noted Mr. B. with no shirt on and he was chasing a car being driven by one G. B. with Ms. D. in the passenger seat. Mr. B. appeared agitated and Ms. D. was crying. Cst.

Samson testified everyone appeared to be impaired and as a result no statements were taken by him at the scene. Ms. D. indicated she did not want to get involved with the Courts and no charges were laid with the exception of Mr. B. being arrested for breaching his parole conditions. [ 28 ] Cst. Charlotte Price - testified she responded to the same address on XXXXXX Road two days later on July 15, 2010 at 11:20 a.m., at the request of Ms. D. ’ s landlord who wished her removed from the apartment. [ 29 ] Cst. Price described the apartment at being in “ disarray ” with dog feces on the floor and a smell of urine.

She noted Ms. D. to be asleep upon her arrival and “ very hostile ” . Ms. D. advised that she was fearful of Mr. B and that he tried to kill her the previous day. [ 30 ] Ms. D. was escorted from the apartment under police direction, but she refused to give a formal statement regarding Mr. B. [ 31 ] Jocelyn Keilty - is a clinical therapist with Family Services, Ms. D. was her patient. Ms. Keilty submitted a letter (Exhibit No. 1) which reported the session history she had with Ms. D.. The following details the session history:

February 19, 2009 - the first session which included generating intake information and general information. Supportive services such as counselling, stress management, self esteem and parenting were identified as areas to review and access. From that date onward and up to and including April 14, 2009, Ms. Keilty scheduled 24 additional sessions with Ms. D.. Over that period of time Ms. D. completed eight sessions on March 27, May 27, June 12, October 9, November 19, December 11, 2009 and February 10, April 7, 2010. The File had been closed on September 18, 2009 but re-opened when Ms.

D. called to request another opportunity to complete the sessions. When Ms. D. subsequently failed to show or cancelled for the 14 th time since February 19, 2009, Ms. Keilty formally closed the file. [ 32 ] Ms. Keilty testified that usually 10 sessions are necessary to complete effective counselling and it was very difficult to identify the presenting issue with Ms. D. due to her gaps between sessions. [ 33 ] During the eight completed sessions Ms. Keilty described Ms. D. as being “ fairly engaged ” and that she made “ some progress ” on “ some issues ” . On one occasion Ms.

D brought some parenting books to the session. [ 34 ] Ms. Keilty testified there was little progress made with anxiety and coping strategies. In fairness to Ms. D. she had called a number of times to re-schedule, but there was equally a number of unexplained no shows by Ms. D. over this time period. [ 35 ] Evidence continued on June 23, 2010 when the Court heard from the following witnesses, namely: 6. Michelle MacLean 7. Colleen Petite 8. Lori Coombs 9. Joanne McCormick [ 36 ] MICHELLE MACLEAN - has been a family support worker for eight years and was assigned to Ms. D. ’ s file on March 6, 2009.

The issues to be covered with Ms. D. were parenting, communication, safety and health child relationships. Ms. D. was provided with booklets and articles in co-ordination with the Protection Worker, to provided a basis to discuss parenting issues. [ 37 ] Ms. MacLean tried to meet with Ms. D. once a week, but testified there were numerous cancellations and no shows. Ms. MacLean completed 20 sessions, however 40 had been scheduled. [ 38 ] During the sessions that Ms.

D. attended she was noted to be quiet, however, she would listen and did appear to understand what was being discussed. [ 39 ] During the course of her involvement with Ms. D., Ms. MacLean reviewed videos of Ms. D. ’ s access visits with the four children from August to November 2009. Ms. MacLean testified that Ms. D. had an inability to engage all four children and would focus on one child at a time. She stated that Ms. D. did not address issues of corrective behaviour and that she had difficulty reading the children ’ s cues. Ms. MacLean questioned why Ms.

D. would not respond when the children called her by name. [ 40 ] Overall it was Ms. MacLean ’ s assessment that there was not a lot of progress and minimal improvement with Ms. D. by November 2009. Ms. MacLean nonetheless acknowledged there was nothing to suggest Ms. D. did not have a healthy bond with the children. [ 41 ] On December 7, 2009 Ms. MacLean reviewed the file with access facilitator, Joanne McCormick. As a result Ms. MacLean

reviewed with Ms. D. “ areas of concerns ” , such as rough and aggressive behaviour; no follow through on direction; focussing on one child over the others; the lack of positive feedback; the girls receiving more attention than the boys and the apparent need for facilitators to intervene. Subsequent to this meeting Ms. MacLean terminated services on January 7, 2010 as “ insufficient progress ” had been made. [ 42 ] Ms. D. later requested Ms. MacLean to re-open her file and Ms. MacLean complied with a meeting on February 18, 2010.

A series of additional sessions were scheduled, with the last meeting being held on April 20, 2010. Attendance by Ms. D. was again “ sporadic ” as evidenced by the following: May 21,2010 called to cancel May 28, 2010 no show June 4, 2010 no show June 7, 2010 called sick June 8, 2010 no show June 10, 2010 called to cancel June 14, 2010 no show June 21, 2010 no show [ 43 ] Ms. MacLean testified that although Ms. D. ’ s parenting skills had improved since coming off some medications, there were still areas which required improvement primarily that of addressing the children ’ s aggressive behaviours.

As stated by Ms. MacLean in her evidence: “It is crucial that she (Ms. D.) notice these behaviours and address them”. [ 44 ] Ms. MacLean acknowledged during cross - examination that the access visits were held in a small Agency office which was confining. She agreed a “ home setting ” would have been more natural for the children. Ms. MacLean agreed that office visits do not mirror reality, but there was no way to know if home visits would have been any different. [ 45 ] COLLEEN PETITE - is an access facilitator with one year experience who was assigned to observe C.H ’ s( 9) visits only.

She had no contact with Ms. D. but was assigned to oversee scheduled visits between C.H(9) and his father, Mr. H. on April 23;30, 2009; and June 11;18, 2009. Ms. Petite confirmed that the June 18, 2009 visit went well, but that C.H( 9) did not want to attend the other visits and the decision to go or not to go was left up to the child. [ 46 ] LORI COOMBS - an access facilitator of two years experience, was next to testify. She described visits that were “ busy and chaotic ” and that Ms. D. did not intervene enough to correct the children ’ s behaviours.

On July 22, 2009 access of three days a week was suspended and replaced with weekly visits, however the behavioural issues remained. [ 47 ] In September 2009 solo visits with C.H (9)were established and, in his absence, the visits with the remaining three children

“ settled down ” . Ms. Coombs further testified that overall the visit on March 24, 2010 resulted in improvement. [ 48 ] Ms. Coombs confirmed that Mr. H. attended 11 out of 13 access visits and the two occasions he did not attend were excusable and not the fault of Mr. H. Ms. Coombs agreed that Mr. H. ’ s initial visits December, 2008 to January 2009 went well and were positive. [ 49 ] JOANNE MCCORMICK - an access facilitator, had previously testified at access hearings on February 8 and March 2, 2010. She indicated there was improvement noted with Ms.

D., however, there still remained some supervision concerns. [ 50 ] On June 28, 2010, the Court heard from the following witnesses namely: 10. Dr. Reginald Landry 11. Susan MacMillan [ 51 ] DR. REGINALD LANDRY - is a clinical psychologist and was qualified by the Court to give expert opinion in the fields of parental capacity and the mental health of children. [ 52 ] Dr. Landry prepared a Parental Capacity Assessment in relation to Ms. D., dated August 31, 2009 and marked Exhibit #3.

His report is broken down into the following topics: - Reason for referral - Previous contact with the Children’s Aid Society - Assessment Guidelines and Method of Assessment - Relationship History - Social History - Clinical Evaluation - Observation of Current Parenting Ability -

Summary and Conclusion [ 53 ] Dr. Landry states at page 5 of his report as follows: “Ms. D. presented as generally being open to the process of the assessment although she sometimes minimized the extent of the challenges within the family unit particularly the challenges faced by the children”. [ 54 ] Regarding this statement Dr. Landry testified as follows: “Well, I don’t think it was a deliberate minimization. I think Ms. D. has experienced a long history of mal treatment, some maltreatment.

Some maltreatment, but also some difficulties in her family, so some of the things she may have seen as being more, for lack of a better word, more normal, more typical would be things that other people may have seen as more significant. So it wasn’t that she is deliberately playing it down, she seemed to think it was more normal.” “....I am not sure how much experience she has had with healthy relationships, but I think the difficulties in her life have made it more difficult to recognize when she is experiencing some of the more challenging experiences.” [ 55 ] Dr. Landry went on to testify that he assessed Ms.

D. ’ s self esteem and self efficacy at being “ fairly low ” . When asked what impact that can have on one ’ s ability to parent he testified as follows: “Um, in terms of the, um, self esteem issue, it certainly can, um, predispose one towards difficulties with depression, you don’t feel good about yourself, there is a higher risk of becoming depressed, in terms of self efficacy that sense of being able to solve problems or to take

challenging behaviours and do something with them, people who are lower in self efficacy tend to respond more possibly to challenges and in a parenting context it would be, the child was presenting with difficult behaviour, people with lower self efficacy may have a tenancy to let those things go until it gets out of hand.” [ 56 ] Dr. Landry was also of the opinion the children will require intervention throughout their childhood.

He testified in this regard as follows: “In addition, um, both, ah, C.H( 9) and J.H present with fairly significantly learning disabilities, which will require a great deal of intervention at school, both in terms of remediating and providing adaptations for school which unfortunately increases the risk of certain...C.H( 6) and E.H also, they are not in school yet, but both of them also have some weaknesses in terms of their language skills relevant to their other non-verbal abilities which make it likely that they may have learning challenges as well.” [ 57 ] Regarding Ms. D. ’ s permissive parenting style, Dr.

Landry testified: “Um, in terms of what, um, the children are thought to need, their needs, limits offer a way to contain any types of serging negative affect, anxiety, depression, um, upset, you know effective limits that helps keep all that in, so in situations where those limits are less clear, let’s say with more permissive parenting styles it makes it harder for kids to learn those self regulation skills, right, makes it harder to learn what you need to be able to contain frustrations, contain upsets.” [ 58 ] Dr. Landry further referenced page 6 of his Report in terms of Ms.

D. ’ s acceptance of responsibility where he stated: “Ms. D. noted some of the difficulties at home were domestic violence. However, Ms. D. minimized some of these difficulties associated with the children’s behaviour noting that they had a few behavioural challenges when they were in her care.” [ 59 ] Dr. Landry also testified to the stress in Ms. D. ’ s life and the affect that would have on Ms. D. ’ s parenting ability. At page 7 of his Report he states: “....When stressors are minimal she may be able to cope more effectively, however, these efforts may give way under the slightest pressure.

Her feelings of despair may then reactivate and she will again feel misunderstood and maltreated thereby provoking her feelings of depression, irritability and hopelessness.” [ 60 ] Dr. Landry further commented in his evidence regarding the effect of stress on Ms. D. as follows: “The would be, um, given her personality, um, and her learning style, um, Ms.

D. may have been perceptible to stress in terms of you know of having a bit more difficulty coping with it however with a person who may be traumatized, and with that suggestion in the report, um, stress can have an even more disorganizing effect, right, because that is what anxiety does, like what skills you do have it can, it can, it can erode their effectiveness, right, you can forget to use them when you are stressed out and so for a person who is, um, who possibly may be suffering from post traumatic stress, it can exacerbate that tendency to get extremely over aroused and over whelmed very easily, very reactive.” [ 61 ] As a continuum to the above the following question and answers during Dr.

Landry ’ s direct evidence are relevant: “Q. You would agree that, um, parenting four children can be stressful? A. That’s right. Q. And particularly four children with, um, significant behavioural issues and, um, learning issues? A. That’s right. [ 62 ] Dr. Landry made the following recommendations in his Report at page 11 to 12.

1. Ms. D. may benefit from a psychiatric assessment to further evaluate any potential mood disorders that may be affecting her mental state and, in particular, the challenge of anhedonia. 2. Ms. D. may benefit from psychotherapy that if focussed on helping her to resolve some of her own issues but also to deal with her current challenges particularly her lack of self-efficacy. This is likely related to her own poor self-esteem and lack of self-confidence. 3. Ms. D. will require some concerted support in dealing with the behavioural, educational and mental health needs of her children.

For example navigating the education system can be challenging for any parent who has a child with special needs. It may be particularly difficult when the children’s needs have not been clearly defined. Ms. D. may need some support helping her to understand the children’s needs and to become an advocate for them at school. She may also benefit from the support of a mental health professional who is able to provide some additional advocacy. 4. J.H and C.H( 9) have significant behavioural difficulties in addition to their educational needs. Ms.

D. may require some support in learning how to manage their behavioural challenges. The children may benefit from some counselling to deal with some of the issues that may be motivating these behaviours. 5. Ms. D. would benefit from an approach to these skills that was based more on modelling than a more didactic, verbal approach as noted above. She likely has had fewer appropriate models from which to learn these appropriate behaviours. 6. If the children are to be returned, Ms. D. may benefit from returning the children gradually.

For example, it would be beneficial for the two girls to return first so that they can have some time in their family home to adapt. In addition, given that the girls may have the least challenging behavioural difficulties, Ms. D. may experience some success managing their behaviour. [ 63 ] In the course of Dr. Landry ’ s assessment of Ms. D. he acknowledged that Ms. D. has shown some insight into the past and current situations. He opined that she is: “Obviously resilient despite some of her chronic mental health challenges given to stressors with which she has had to cope.” [ 64 ] Dr.

Landry further reported at page 11 that Ms. D. “ may have ” the ability to parent her children with the proper supports in place to ensure that she is not over whelmed. [ 65 ] However, he further testified as follows: “Well, the assessment was done a year ago and assuming that if she has not accessed any services and if she continues to feel depressed and distressed by anxiety then it would be a challenge to have four children with the extent of their needs returned to her care without any intervention.” [ 66 ] Dr.

Landry then focussed his evidence on his most recent assessment dated June 7, 2010 and marked as Exhibit No. 4. Regarding his opinion on both Respondents having access visits with their children Dr. Landry states on page 1 of this report as follows: “It should be noted that this document is not an assessment of parental ability. It is an effort to better understand the observation of others that the children are having challenges and adjusting to access visits with their parents.

Dr. Landry concluded at page 3 of his report: “However as noted above, during the visits were generally positive oriented toward the parents and actively engaged with them displaying affection and interests. This would indicate some level of attachment. Consequently some of the distress experienced after the access visits may be related to the distress of separation worsened by the existing problems with self control.” [ 67 ] Dr. Landry concluded in his report that there would be little reason to permanently end access visits, other than part of permanency planning that is before the Court. [ 68 ] Dr.

Landry was asked in Direct Examination what impact a Permanent Care Order with continued access may have on the children. He testified as follows: “Well, um, the challenge with continued access is that it, um, is that it could just keep regenerating some of these feelings of, um confusion, ambivalence, trauma possibly if there wasn’t any treatment for that.” [ 69 ] The next witness called by the Applicant was Susan MacMillan , a Protection Worker, who was assigned the file January 27, 2009 to August 19, 2009. [ 70 ] At the time Ms. MacMillan took over the file, Ms.

D. was residing in * and had not yet engaged in any services. Ms. MacMillan confirmed Ms. Keilty ’ s testimony that Ms. D. did not complete the sessions offered by Family Services. [ 71 ] Ms. D. had advised Ms. MacMillan in July 2009 that the counselling sessions did “ absolutely nothing for her ” and that she tended to forget about the appointments. Ms. MacMillan stated in her evidence that she confirmed with Ms. D. that it was her responsibility to attend the counselling sessions. [ 72 ] In May 2009 Ms. D. was encouraged to see her doctor and get a referral to mental health. At this time Ms.

D. was experiencing symptoms of anxiety and on medication. [ 73 ] Ms. D. also discussed her past relationship with Mr. H. and that she was still afraid of him. Ms. MacMillan testified she expressed her concern to Ms. D. about hanging around violent people and that Ms. D. agreed to have no further contact with Mr. J.B [ 74 ] Ms. MacMillan testified the Agency stressed the importance for Ms. D. to participate in services to obtain the necessary knowledge and skills to reduce the risk to the children. At the time Ms. MacMillan left her role as protection worker in August 2009. Ms.

D. had not completed the recommended services. Ms. MacMillan, however, acknowledged Ms. D. had completed services in * prior to her return to Nova Scotia in 2009. [ 75 ] Regarding Mr. H., Ms. MacMillan testified that he had access in December 2008 and January 2009. Mr. H. had no contact with the children January to August 2009 as he was incarcerated and bound by an undertaking during that period. [ 76 ] Ms. MacMillan testified she made no attempts to contact Mr. H. and that the Agency was not going to solicit his involvement because he was not making himself available. When questioned why Mr.

H. was not asked to participate in the Parental Capacity Assessment Ms. MacMillan testified: “I am not sure.” [ 77 ] A number of organizational pre-trial conferences were held throughout the summer months and evidence was re-commenced on October 14, 2010. The Court heard from the following witnesses at that time, namely:

12. Ms. Glennis Nathanson 13. Dr. Brian Foley 14. Michelle MacLean [ 78 ] DR. BRIAN FOLEY - is a psychiatrist employed by the Cape Breton District Health Authority. He has been practising psychiatry for 23 years and associated with the Cape Breton Regional Hospital for 19 years where he now serves as Clinical Director of Mental Health Services. [ 79 ] Dr. Foley was qualified by the Court in the field of general psychiatry and referenced the medical records of Ms. D. which had been introduced into evidence previously through Glennis Nathanson , Acting Director of Health Records and marked Exhibit No. 6. [ 80 ] Dr.

Foley first met with Ms. D. on January 26, 2010 at which time his impression was that Ms. D. was suffering from “ an adjustment disorder with depressed and anxious mood ” and possibly “ post traumatic stress disorder ” . Dr. Foley based this diagnosis on the history provided to him by Ms. D.. He testifies as follows: Q. Okay. And what about Ms. D.’s presentation, um, helped you form that opinion? A. You form the opinion from, from the history and, and the general presentation of what’s called a mental state. Q. And what in particular of Ms. D.’s history, um, helped you form that? A.

She gave a history of, ah, um, I will just look at these notes. She gave a history of, um generally, um, lacking energy, lacking ambition, mood was done, a sense of loss and emptiness, um, um, little real engagement or activity, little real enjoyment in life, um, over a period of time. Q. And with respect to, ah, your opinion that she was suffering from post-traumatic stress disorder, what in particular lead you to, um, ah, to that opinion? A.

I didn’t, ah, I didn’t diagnose post-traumatic stress disorder, I just put it in a differential, just in a sense, because it would be, ah, something that would have to be given some consideration given Ms. D.’s , ah, um, um, formative history and, and background. [ 81 ] During the course of this session Ms. D. confirmed with Dr. Foley that she had concerns and fears about the whereabouts and possible return of her ex-partner, Mr. H.. Ms. D. explained to Dr. Foley that this fear was the result of an “ abusive situation ” . [ 82 ] Dr. Foley next met with Ms. D. on March 30, 2010 where he found Ms.

D. “ a little more engageable ” but the mood presentation remained the same. It was agreed Ms. D. would be prescribed an anti-depressant to help her sleep. [ 83 ] A third session was held on June 25, 2010 at which time Dr. Foley found Ms. D. was demonstrating the same symptoms. Dr. Foley further testified that: “I felt that she endorsed anxiety and depressive symptoms, um, with long standing feelings of emptiness, futility, some what restricted life style, dependent pattern within relationships. I felt it was most likely, at this time, a dysthymic picture, rather than a major depression”.

[ 84 ] Dr. Foley testified that Ms. D. did not see herself as being depressed and related her symptoms to the fact she no longer had custody of her children. Under cross-examination Dr. Foley agreed the loss of Ms. D. ’ s children was a contributing factor to her symptoms, but not a major factor. [ 85 ] At the next meeting on August 20, 2010 Dr. Foley found Ms. D. to be “ feeling better and doing better ” . He testified: “I felt that she was more engaged, and she was more energetic and, ah, um, her mood was better”. Ms.

D. failed to show up for the scheduled September 30, 2010 meeting without explanation. [ 86 ] Dr. Foley was of the overall opinion that Ms. D. suffered from a “ low grade depression ” which could be treated by way of medication and counselling to address life style issues; mood improvement and problem solving. [ 87 ] MS. MICHELLE MACLEAN - then testified and she had previously testified in the proceeding. Ms. MacLean was called to update the Court about her involvement with Ms. D. since June 21, 2010. [ 88 ] Ms.

MacLean testified that following through with correcting the children ’ s negative behaviours is very important and especially so for children with issues. Children demonstrating sexualized and/or aggressive behaviours must be given immediate proper correction from the very beginning, otherwise the children could have difficulty with self control and generally problems in life. [ 89 ] Ms. MacLean testified Ms. D. appears to have made “ some progress ” but seems to have a “ high tolerance level ” for inappropriate behaviour which she tries to manage by “ ignoring it ” so, inconsistencies remain. Also Ms.

D. did not play the role of disciplinarian in the H. household and thus she feels she is being “ mean ” by imposing consequences for negative behaviour. [ 90 ] In terms of current one on one access visits with C.H(9), J.H, C.H( 6) and E.H, Ms. MacLean testified it was going “ fairly well ” and that there were no major outstanding concerns with the children being separated. Ms. MacLean testified it would, nonetheless, be very difficult for Ms. D. to manage all four children together: “I think ...I feel with what I have viewed the information that I have and in my role with Ms.

D., I believe it would be very, very difficult for her to manage four children together.

C.H’s( 9) behaviours, are, ah, at times, very aggressive, can be sexualized, um, C.H( 9) even though I haven’t viewed any of the visits in the last while, I have seen C.H( 6) in access visits, she can be very demanding, I have seen both J.H and C.H(9) in our office in *, when they are together their behaviours can be extremely challenging, um, I have seen, ah the access people across the hall from me with the four children waiting to go into their visits separately, I think it took a lot of effort and a lot of skill to manage the four children together while they waited for that hour to go into their visits separately, ah, I think someone is going to have to be very, very skilled, very dedicated and devoted, you know, in insuring that these children get the services they need, um, I think it would be very difficult to manage the four children at one time.” [ 91 ] Since June 21, 2010 Ms.

D. ’ s attendance to sessions continued to be an issue and a concern to Ms. MacLean. Ms. D. attended 9 out of 16 sessions and Ms. MacLean testifies she considered the seven missed sessions to be “ a lot ” when asked the following by the Court: THE COURT: Ms. MacLean, I just have a couple of questions before you step down, the ...initially in your direct testimony you were talking about the number of visits that you had with Ms. D., you indicated that you scheduled some 16 and you had nine sessions were attended and seven were missed? A: Yes

Q. And I think you indicated that you considered missing seven visits was a lot, and I am just curious what impact does that have on your ability to perform a service when that many visits are missed by a participant? A: Time wise, it really restricts my ability to get information imparted that needs to be imparted and it makes the whole process that much more difficult and that much more lengthy. Does that answer your question? Q: So I take it then that when you develop the number of sessions then there must be a plan or strategy behind it to have things hopefully completed within a certain time line? A: Yes.

Q: And when the visits are missed then that time line would be basically off the table? A: It becomes extended and creates more work. In relation to concerns regarding attending sessions Ms.

MacLean stated the following under cross-examination: “...and when I refer to being dedicated and devoted what I was thinking more of with that is services that these children are going to need in order to ensure good mental health, a parent is going to have to be very dedicated and devoted to arranging, making time dedicated to getting children to these services as they are going to require quite a bit of additional services” [ 92 ] On October 20, 2010 Protection Worker Sherry Johnston was called to testify.

She took over the file in December 2009 from Susan MacMillan at which time the presenting issues were parenting; sibling rivalry; managing difficult behaviour and discipline. [ 93 ] Ms. Johnston was questioned at length by counsel and she testified that although services were put in place for Ms. D. her attendance to same was “ sporadic ” and thus the issue of concerns were not being addressed. [ 94 ] Ms. Johnston referenced the Agency plan of care dated February 5, 2010 and marked as Exhibit No. 7 which indicated the Agency was seeking Permanent Care for the Respondents ’ children with no provision for access.

The plan of care further states at page 11: “The Agency is committed to providing the children with a secure and long term attachment through adoption.” The underlying rationales for this position is described as follows at page 10 to 11of the plan of care:

(4) Where the Agency proposes that the children be placed in the permanent care and custody of the Agency: (

a) Why the circumstances justifying the proposal are unlikely to change within a reasonable foreseeable time not exceeding the maximum time limits: The objective of the Agency’s intervention was to provide services to Ms. D. that would alleviate the conditions that initially placed the children in need of protective services. Ms. D. has a longstanding history of domestic violence involving Ms. D. and Mr. H.. Although, Ms. D. has ended her relationship with Mr. H., Ms. D. is currently involved with J. B. who has an extensive criminal history. Although, Ms. D. is aware of Mr.

B.’s past, she has continued to participate in this relationship. There have been allegations that Mr. B. has abused Ms. D., but these have not be substantiated. Although Ms. D. has left Mr. H., she is unable to recognize the factors that continue to impact this situation. Ms. D. has expressed that the children’s behaviours are primarily caused by limited access. Ms. D. does not possess an accurate understanding of the psychological damage that the children have endured. The needs of the children are high, but Ms. D. has little insight into the children’s

needs. Ms. D. has been involved with family support since February 2009; however, there has been minimal progress. Ms. D. has been provided with information to help parent the children but she is unable to follow through. Ms. D. has difficulty redirecting her attention to another child when she is already engaged with one, is inconsistent with addressing rough play, provides more time and attention to the younger children, does not engage with the children or talk on their level, Ms. D. has been unable to identify the negative aspects and positive aspects of the access visits. Ms.

D. often stated that the access visits go well, while the access facilitator identify concerns during the visit. Regarding Mr. H., the Agency Plan of Care states at page 9: “....Mr. H. has not followed up with the recommendations of the agency and is not actively involved with the Agency at this time. Mr. H. is not having access visits with the children.” It was however confirmed that the access Mr. H. did have did go well. [ 95 ] Ms. Johnston testified that since the decision to seek permanent care was taken by the Agency there had been “ some improvement ” with Ms.

D. ’ s level of engagement at the counselling sessions and that “ some progress ” has been made, however, attendance remained a concern and not sufficient progress had been made to displace the ongoing concerns of the Agency regarding the risk to the children. [ 96 ] Also Ms. Johnston testified given the limited progress to date there is insufficient time under the Agency ’ s statutory mandate to have Mrs. D engage in further services in an attempt to reduce or eliminate the risk. [ 97 ] Ms.

Johnston testified that the Agency is opposed to access as it would cause a breakdown in the adoption process and would be confusing to the children which would make it difficult for the children to connect with the potential adoptive family. Ms. Johnston did not believe that neither present access nor possible future access is or would be in the best interests of the children. [ 98 ] Under cross-examination Ms.

Johnston acknowledged that she had some mistaken entries on her file in terms of dates; had omitted to mark some entries on the file regarding internal office communication and had not communicated effectively with fellow care worker, Ryan Ellis, to the point she was “ not aware ” of some events relative to access arrangements regarding C.H( 9) and JH., including a report dated July 13, 2010 prepared by Ryan Ellis. This revelation was concerning to the Court and I will make further comment upon same later in my decision. [ 99 ] RYAN ELLIS - was called to testify on November 26, 2010.

He is a social worker with 6 years experience and has been a child care worker for two years. His general role is to assess children who are in temporary care and works with the foster parents and protection worker. [ 100 ] Mr. Ellis has been involved with the file since October 20, 2009. He testified about the history of the file and the concerns of the Agency which have been repeatedly referenced in the earlier evidence. It is clear from the evidence that Mr.

Ellis is very involved with the children ’ s service needs and he has regular contact with the children. [ 101 ] In his opinion C.H( 9) requires “ constant supervision ” due to reported suicidal idealization. It is challenging to find C.H(9) a suitable foster placement. C.H(9) had been in four foster homes from October 2009 to June 2010 which also included periods of lengthy respite. C.H(9) is reportedly doing well in his current placement. [ 102 ] With C.H( 9), the goal is permanency and efforts are being made to find a placement that is permanent, consistent with much

structure. Mr. Ellis testified there will be long term counselling for C.H(9). He will also require long term support academically and an outreach worker to help him with life skills in the community. Although counselling has not yet been confirmed, it is apparent that C.H. (9) will require follow-up assessment and treatment and, as well, he will require long term support from the school to help address any of his academic issues. [ 103 ] When cross-examined about the number of foster placements C.H ( 9) had, Mr. Ellis testified: Q.

Would you agree with me that, ah, because of the ah...that, that C.(age 9) is experiencing some emotional harm while in care? A. I would think the changing, um, placements is, would have an impact on; however, I believe there’s other issues as well, that impact him. Q. Well my question is, he is experiencing emotional harm, is he not? A. He’d be ,yeah, experiencing separation and loss and attachment break. [ 104 ] Mr. Ellis testified regarding C.H( 6) and E.H ’ s long term goals as follows: “Permanency, structure. There will be ongoing, um, will assess their need for counselling.

Um, right now it’s, um, it’s consult only. Um, my understanding that has to do with their age. As they age we will look at, ah, further counselling, ah, that’s necessary for them because I believe they will need that. Um, family services will be considered, if Child and Adolescent Services, um is, is, do not feel they are suitable for their service. We will be looking at the psycho-educational assessments for the girls for the long term. Um, they will be need, ah, at least C.H(age 6), we know at this point, there are some concerns academically. There are some concerns at school.

So they’ll have to be constant liaise with the, ah, with the school.” [ 105 ] J. H has ongoing issues with aggression, which will require long term counselling along with long term tutoring and out reach programming. Mr. Ellis testified that J.H requires “ long term ” services to provide the necessary structure, permanency and support to address J.H ’ s issues which includes a developmental language disorder. [ 106 ] Regarding J.H, Mr. Ellis testified there is identified frustration with academics. There is possible grief and loss. For J.H there is possible post trauma and attachment related issues.

He will need a lengthy period of structure, permanence with excessive and extreme supports to help him deal with the stressors of life as they emerge. [ 107 ] Regarding looking after all four children together Mr. Ellis ’ s testimony was similar to that of Ms. Michelle Maclean stating: “ MS.

MACSWEEN : And, ah, you’re the worker for all four of these children, um, in terms of the interventions that these four children require, what kind of time commitment, and what kind of commitment for their, their um, their child, their care-givers required to ensure that all of their, um mental health needs are met, and all their educational needs are met, in addition to their day to day needs? A. Yes. That’s a large commitment. The foster parents, um, really needs to spend a lot of one on time with the, one on one time with the kids.

Um, really need to spend, ah, a lot of time providing direction, support, affection with the kids. Um, it’s a constant, it’s constant support that’s needed for the kids. It’s, um, hours and hours daily.” [ 108 ] The Respondent, Ms. D. testified on January 19, 2011. Ms. D. now resides at XXX XXXXXX Road, *, Nova Scotia which is a three bedroom house situate near schools the children could attend.

[ 109 ] Ms. D. ’ s plan is to have all four children returned to her care and she believes she is up to the task of caring for her children. [ 110 ] Ms. D. has confirmed medical care for the children; has support from her mother and aunt; plans to keep the children active in various sporting activities and is willing to participate in any programs for the benefit of the children and herself. [ 111 ] In terms of services and programs Ms. D. testified she last saw Dr.

Foley on January 11, 2011 and will continue to see him on a monthly basis; is on the waiting list for a psychotherapy placement; has completed a domestic violence course at Transition House and plans to attend the Family Resource Centre. She stated: “As soon as something comes up I am willing to go” [ 112 ] Prior to the November 2008 apprehension Ms. D. testified the children were happy and not doing the things they are reported to be doing now (i.e. hoarding food; sleep disturbances and school issues). Ms.

D. nonetheless testified that C.H( 9) had attended Mental Health while residing in * to address some behavioural problems. She stated: “He was not wanting to go outside and play with the other kids; he was wanting to stay in the house and play video games all... and if the video games were taken from him he would get upset about it” Ms. D. also acknowledged that C.H.(9) would sometimes be aggressive. Regarding J.H., Ms. D. testified she had no problem. [ 113 ] In April 2008 an incident of domestic violence occurred wherein Mr. H. threatened to kill Ms.

D. and in her words “He stabbed the wall above my head with a butcher knife” Ms. D. had told Mr. H. she no longer wanted to be in a relationship and was assaulted as a result. The police were involved; charges were laid against Mr. H. and Ms. D. re-located to * with the request to the Agency that her file be transferred. When questioned about other incidents of domestic violence Ms. D. testified: “Not like that, no, I mean we argued a lot, we hollered a lot at each other, but we weren’t always physical.

The last physical contact we had together was back in 2004 when I hit him for calling Children’s Aid accusing me of throwing an empty plastic bag at C. (age 9).....” As a result of the April 2008 incident Mr. H. was criminally charged and placed on an undertaking to have no contact with Ms. D. as evidenced by Exhibit No. 10. He was ultimately incarcerated. Ms. D. acknowledged Mr. H. attempted to visit her in * in June 2009 and he was arrested for breach as a result. When Ms.

D. returned to Cape Breton she testified after three weeks at her mother ’ s house with five children present, inclusive of her eldest son, B., who is not subject to this proceeding, she agreed with Mr. H. to move back to their former matrimonial residence at XX XXXXXXX Street, *. She testified this was arranged through a third party and that Mr. H. was not living at the residence at that time. When questioned about the November 2008 apprehension Ms.

D. testified as follows: “My understanding what I was told was that Wendy Campbell and Nicole Stubbert seen J. go out the front door of the house....but yet they told me that they seen J. leaving the residence when it wasn’t J., it was a friend of mine, J. W..... that was their excuse for taking them.”

[ 114 ] Ms. D. further testified that Mr. H. was in Halifax at this time and that their relationship was over and that the only contact she has had with Mr. H. since has been the result of the court proceedings. [ 115 ] Ms. D. testified that she had a relationship while in * which ended due to the man ’ s drinking and upon her return to * she dated Mr. J.B for approximately ten months. [ 116 ] Ms. D. confirmed the earlier police evidence regarding the events of July 13, 2010 but denied she was assaulted by Mr. J.B.

She ended he relationship in October 2010 stating: “...Because I felt my children were more important than a relationship and it had to end.” [ 117 ] Since November 2010 Ms. D. testified she continues to see Dr. Foley and that she is learning “ to keep herself calm ” as a result of the sessions. She also has been attending the Family Resource Centre attending seven out of ten sessions which dealt with being consistent; sibling rivalry and dealing with challenging behaviours. [ 118 ] When questioned about Dr. Landry ’ s recommendations noted in Exhibit No. 3, Ms.

D. testified she would be compliant with same and is willing to do whatever it takes to offer assistance to her children. [ 119 ] Regarding access Ms. D. testified she has not seen C.H( 9) in five months because he does not want to go the visits. She testifies C. H(9) never missed a visit when they were held at her mother ’ s home. She states: “It was just like having them home again” [ 120 ] Ms. D. testified about an interpersonal conflict with access facilitator Joanne McCormick, which resulted in visits being moved back to the Agency office.

When asked to compare the visits at the office to her home and her mother ’ s home Ms. D. testified: “They were ten times worse. C.H( 9) gets bored quick. His attention span is shorter then a normal child so he doesn’t want to be cooped up in a nine by nine room for an hour and a half...he wants to be out playing and doing things.” [ 121 ] Regarding foster care placement Ms. D. testified as follows about C.H( 9): Q. How many foster homes had C. been in Ms. D. do you know? THE COURT: Ms. D. do you wish to take a break, you’ve been on the stand for about an hour and fifteen minutes. A. Oh I am fine. Q. You’re sure.

A. About four or five.

MR. MCKINLAY: and what do you think about that? A. It is not right because the way I see it nobody wants to deal with him. It almost seems like when one person gets him they don’t want to deal with him, so they ship him off to somebody else. Is that going to happen, is he going to keep being shipped and shipped and shipped because nobody wants to deal with him. I am sorry but he’s my son, I want to deal with him, I want them to come home. I can be there everyday to help him and to help him through everything and every problem that he had, I always was.

He always came to me with his problems and always told me his problems and now I can’t get anything out of him. I was told not to hug them, I was told not to kiss them, to ask permission and everything and then I am being accused that I wasn’t giving them enough affection and then when I do give them affection then it is eh...like it don’t matter what I do something goes wrong. Q. Without stating things that the children have stated, said, what is your understanding Ms. D. as to C.’s(9) wishes as to where she wants to go. A. I don’t know where she wants to be.

In my mind she probably wants to be home but I can’t I can’t say what she wants because I don’t get enough time with them to find anything out. Q. And what about E.? A. Same thing. Q. Okay and what about J.’s issues, do you know? A. No. [ 122 ] Ms. D. expressed her love for each of her children stating: “They give me my purpose of living, they give me my purpose of being who I am, a mom.” Ms. D. misses her children and wants them to come home. She fears otherwise they will get lost in the system. [ 123 ] During cross-examination Ms.

D. testified about her failure to complete the counselling sessions with Jocelyn Keilty. Ms. D. testified she had nothing to say to the counsellor and did not understand why she was referred. [ 124 ] Ms. D. questioned why the referral to go to Transition House initially to which Ms. D. stated: “ I have a lot of anxiety. I take panic attacks and hide in a corner.” [ 125 ] Ms. D. is now more confident and less anxious and is getting out more. She states: “I ‘m trying to participate in services now.”

however she no longer wishes to maintain a relationship with Protection Worker, Sherry Johnston. [ 126 ] The Respondent, J. H. , was the last witness to testify on January 20, 2011. He is age 34 and resides in Halifax in a two bedroom apartment and requests the children be returned to his care. [ 127 ] Mr. H. testified he took an equal parenting role with the children, although it would appear from the evidence that Mr. H. was the disciplinarian. [ 128 ] Mr.

H. testified that C.H( 9) had significant behavioural problems in that he was “ overactive and hard to slow down ” and J.H had some reading difficulties. [ 129 ] Other than those observations regarding C.H( 9) and J.H., Mr. H. testified none of the children were experiencing any of the reported issues regarding hoarding of food; trouble sleeping and toilet training concerns; being aggressive and expressions of suicide. [ 130 ] Mr. H. testified he had no knowledge of the reported concerns of the Agency until he heard the evidence of same during this proceeding. Mr.

H. questioned why the children are now manifesting these behaviours stating: “They weren’t like that before” He believes the expert reports confirm the problems are as a result of separation disorder. [ 131 ] Regarding the apprehension in November 2008 Mr. H. testified he was neither present at nor living at XX XXXXXXX Street, *. Mr. H. testified he was living at XX XXXX Street with a friend and in the process of moving to Halifax. [ 132 ] Mr. H. acknowledges he was in breach of his then undertaking for not residing at XXXXXXX Street and he pleaded guilty to charges which were laid as a result.

He nonetheless stated he had at no time resided with Ms. D. at XX XXXXXXX Street. [ 133 ] Mr. H. confirmed that he had a volatile relationship with Ms. D. which resulted in much arguing between them over the years. He testified the only physically violent encounters was in April 2008 which resulted in his imprisonment. [ 134 ] Mr. H. confirmed he went to * in June 2009 in an attempt to see his children, but was arrested, charged and convicted for breaching his court undertaking to have no contact with Ms. D.. [ 135 ] Mr.

H. testified he has accepted for some time there is no possibility of a relationship between himself and Ms. D.. He has moved on and now has a steady girlfriend of six months in Halifax, namely C. P. [ 136 ] Since November 2008, Mr. H. has had limited access to his children. He was candid in admitting that his incarceration and subsequent re-location to Halifax in December 2009 played a

part in his limited access, although he believes his requests to see his children more often since his release have not been fairly considered by the Agency. I will speak to this issue later in my decision. [ 137 ] He testified the Court ordered access in March, 2010 went well, although he found it difficult to travel to the * Agency office. Currently C.H(9) is not attending the visits but he testified the visits he had did go well.

[ 138 ] Mr. H. testified he often requested increased access and in particular telephone access with C.H( 9). He testified the Agency response was always the same “ that there must be a Risk Management Conference ” but no positive change occurred in his view. [ 139 ] Mr. H. testified he took an anger management course while incarcerated and he states he learned to be more positive and not get so extremely mad. He testified: “Talk, don’t yell” [ 140 ] Mr. H. has also completed to Second Chance Program on December 20, 2010 as evidenced by his certificate marked Exhibit No. 13. Although Mr.

H. was not offered any remedial services by the Agency he acknowledged that he was aware of same in December 2008 . He went on to testify: “I do not need programs to properly parent my children.” [ 141 ] Mr. H. testified his plan is to take all four children with him to Halifax and that he would manage the children the same way as he did in the past. Mr. H. testified he would like to have the children re-assessed, but that he would nonetheless continue with any recommended counselling. [ 142 ] In the alternative Mr. H. would support to return of the children to Ms. D. or another family member. Mr.

H. opposed the permanent care. He stated: “Temporary care has them pretty messed up.” [ 143 ] During cross-examination Mr. H. would not acknowledge any of the reported behavioural concerns of the children pre-existed the apprehension. He stated: “Nothing like I am hearing now” The Court will also address this comment later in the decision. [ 144 ] In spite of his qualified support for Ms. D. he did acknowledge there were times he was frustrated with Ms. D. ’ s parenting skills in terms of her ability to deal with them all.

He testified: “she was not able to focus her attention on them all at one time.” [ 145 ] Regarding the possible return of children to a family member Mr. H. acknowledged he had not requested any of his family to get involved in this matter. [ 146 ] At the conclusion of the evidence the Court requested written submissions from counsel, which were provided to this Court on February 4, 2011. APPLICANT ’ S SUBMISSION

[ 147 ] The Agency submits that: - during both the pre and post apprehension period that the evidence demonstrates Ms. D. had difficulty managing the challenging behaviours of all four children and had difficulty dividing her attention between the children. - that the remedial services offered to Ms. D. have been exhausted either by way of Ms. D.’s inability to complete or refusal to participate in the services offered. - that Ms. D. still has unresolved issues regarding domestic violence; general parenting and mental health, submitting the children remain at risk and in need of protective services.

The Applicant relies upon the evidence of Jocelyn Keilty; Susan MacMillan; Sherry Johnston; Dr. Reginald Landry; Dr. Foley and Michelle MacLean in this regard. [ 148 ] The Agency acknowledges that there has been some improvement by Ms. D. in addressing Agency concerns but that progress has been minimal and not in a timely manner evidenced by her sporadic attendance to sessions and not having yet commenced psycho therapy. [ 149 ] The Agency further acknowledges improvement with the access visits, but submits Ms.

D., nonetheless, still struggles to set boundaries and manage the children ’ s behaviours. [150] The Agency further submits that: - there still remains concerns that Ms. D. has been unable to make healthy choices in her relationships, in particular Mr. H. and Mr. B. This also - further places the children at risk that by maintaining a relationship with Mr. B while seeking return of the children demonstrates a consistent lack of insight into the effect of her unhealthy relationships on the children. - that the services designated to help Ms.

D. alleviate the risk to the children in relation to domestic violence and her parenting have been attempted and failed. [151] Regarding Mr. H., the Agency submits that: - Mr. H. still has unresolved anger issues; - that the seriousness of the violent act committed upon Ms. D. and in the presence of the children in April 2008 cannot be overlooked when examining whether the risk to the children has been reduced; - that Mr. H. has failed to engage in remedial services so as to reduce the risk to his children; [152] The Agency relies upon the evidence Sherry Johnston who testified that Mr .

H. made no attempt to contact the Agency until after the Agency had determined to seek permanent care, although he would have been aware services were available. As a result the Agency did not put forward any services for Mr. H. because his re-involvement was only months before the legislated deadline by which this proceeding was to be concluded. [153] The Agency further submits that: - that Mr. H.s recent efforts to engage in services is “too little too late: and does not address their risk concerns for the children.

[154] In general the Agency submits: - that this matter is out of time as the legislated deadline has been exhausted and extended; - that the domestic violence between the Respondents and the challenges they face in parenting four children, all with significant behaviours and learning difficulties, should not be minimized; - that the Respondents have failed to adequately engage and successfully complete remedial services to reduce the risk; - that the Respondents’ lack of insight into their domestic violence and parenting issues requires the children not be returned to either Respondent; - that given the risk that the Respondents continue to pose to the children and given that the Respondents’ plan to care for the children would be inadequate to meet their needs, the children require the stability that an adoptive home can provide; - that it is in the best interests of the children to be placed in the permanent care of the Agency with no provision for access; - that adoption is a viable plan for all four children and that any access order would impede any adoption.

RESPONDENT Ms. D. SUBMISSIONS [155] Counsel for Ms. D. submits: - that Ms. D. currently resides in a three bedroom home and is fully ready for the return of the children; - that Ms. D. is not currently in a relationship; - that Ms. D. has the support of her parents; aunts; close friends; and doctors in the event the children are returned to her; - that Ms. D. regularly sees a psychiatrist and has been referred to psycho therapy; - that having ended the relationship with Mr. H., the concerns about domestic violence has been addressed and there is no risk to return the children to Ms.

D. under the circumstances; - that the evidence suggests that the children were doing fine prior to the apprehension in that there was no hoarding of food; eating of wall paper; urinating in closet; stealing; eating excessively; or suicidal idealation ; - that the agency misconstrued the circumstances at the time of apprehension and that Mr. H. was not present at * Street, * which was the basis upon which the Agency acted;

- that the Respondents did, can and will communicate as separated co-parents for the benefit of their children; - that with the permanent separation of the Respondents as of April 2008, the risk of domestic violence has been eliminated as a risk for the children; - that there is good reason to be confident that the children will not witness any more violence between the separated Respondents; - that the main justification for the apprehension is gone and there remains no further substantial risk of emotional harm or any other type of harm; - that the evidence suggests there was no incident of domestic violence between Ms.

D. and Mr. H.; - that the concerns about Ms. D.’s passive parenting style and lack of follow through does not amount to a “substantial risk” sufficient to warrant disintegration of a family; - that the goal of achieving “permanency and stability” for the children has not and will not be achieved by the Agency which is evidenced by the parade of different protection workers and foster placement the children have been exposed to thus far; - that only dismissal will guarantee an ongoing relationship between C., J. and their stepbrother B.; - that the only continuity the children have had and will have is with Ms.

D. and that the children have suffered while not in her care; - that there are strong and loving bonds between Ms. D. and her four children; - that there is no evidence or probability that the four children will or can be adopted by a family; - that Ms. D. is open to continued Agency involvement and support, however Ms. D. does not want any further association with the protection worker, Sherry Johnston; - that in the event permanent care is granted it is in the best interests of the children to have ongoing access with the Respondents. RESPONDENT Mr. H. ’ S SUBMISSION [156] Counsel for Mr.

H. submits: - that there are no circumstances justifying an Order for Permanent Care and Custody; - that the circumstances that would have justified such an order no longer exist, specifically a relationship between the Respondents with the potential for domestic violence and corresponding risk of harm to the children;

- that it is in the best interests of the children that the Agency application be dismissed and the four children be placed in the care and custody of Mr. H.; - that in the alternative the children should be placed with Ms. D.. GUARDIAN [157] Ms. Lisa Fraser Hill was retained in March, 2010 to act as guardian for the two children, C. H.( 9) and J. H. She has been in attendance throughout these proceedings. [158] Ms.

Fraser Hill advised by letter dated November 22, 2010 and marked as Exhibit No. 14 which formed part of the record by consent, that she had several interviews with the children to discuss their living arrangement, relationships and access with their parents and siblings. [159] Ms. Fraser Hill advises she reviewed the following material and reports with the children, namely: 1. Protection Application filed November 18, 2008; 2. Protection Application filed October 28 th , 2003; 3. Application for Disposition Order filed March 31 st , 2004; 4. Affidavit of Wendy Campbell filed June 22, 2004; 5.

Interim Custody Application filed by Mr. H. April 22, 2008; 6. Ex Parte Custody Order issued April 22, 2008; 7. Notice of Protective Care Placement issued June 27 th , 2008; 8. Affidavits of Diane Watson filed July 14 th , 2008; 9. Review Applications issued February 5 th , 2010 and May 11 th , 2010; 10. Plan of Care and Disposition Application dated April 1 st , 2009; 11. Psychological Assessment of Parental Capacity dated August 31 st , 2009;

12. Psycho-educational assessments - C. H. (Age 9) and J. H.; 13. Disclosure materials from Minister of Community Services; 14. Dr. Reginald Landry - report re access dated June 7 th , 2010; 15. Access notes and facilitators’ case notes; 16. Plan of Care filed February 5 th , 2010; 17. Disclosure materials - October 1 st , 2010 - November 3 rd , 2010; 18. Child’s Comprehensive Plan of Care - J. H. [160] Ms. Fraser Hill comments about J.H ’ s wishes at page two of her report as follows: During my meetings with J. he appeared very content at the foster home and said that he like living at this home.

He told me he had been residing there with the same foster parents since he was in grade two. He has friends at school and in his neighbourhood. J. was exceptionally shy and quiet during my meetings with him and was initially reluctant to provide any detailed information regarding his wishes about his future care. He indicated that he loved both of his parents and like having visits with them every week. It was quite obvious that J. has a close bond with his parents and his siblings. He misses his family and would like to be able to have visits with them outside of the agency office.

He now goes to restaurants for access with his brother, C. and really seems to enjoy these times. With respect to his future care, J. seemed to believe that he would be residing at the foster home for a long time. He said this was ok with him as he liked living there, however wants to return to the care of either his mother or father. He would not choose, and I did not feel it was in his best interests to put him in a position where he felt like he had to pick one parent over the other.

During my recent visit with J. he seemed very content and more willing to discuss school and his activities and visits with his family. Although I found J. was more open, he would state that he liked living in his present foster home and had no complaints, except that he continued to miss his parents and family. Regarding C.H

(9) Ms. Fraser Hill further states: I met with C.(age 9) on four occasions from April, 2010 to October, 2010. My first three meetings with C.(age 9) were at his foster home. I had an extremely difficult time attempting to have any meaningful discussion with C.(age 9) at each meeting. He did not want to talk to me about his family, school, access or his future care. During my three visits with C.(age 9) at the foster home he would leave the room, holler and run away from me stating that he did not want to talk. The foster mother attempted to assist by asking C.(age 9) to stay in the room with me.

Unfortunately I was unable to get C.( age 9) to talk about his mother, father or siblings. He would put his hands over his ears and holler in an attempt to avoid having any meaningful communication with me. He discussed school and games he liked to play but would become very quiet and distracted when asked about his family. He was adamant that he would not discuss his circumstances. During my last meeting at the foster home he finally spoke to me and said that he would not get what he wanted no matter what he said. When I asked what he meant he said he wanted to stay with his foster mother at that time.

He is no longer residing at the same foster home and was moved June 2010. I attempted to meet with C.(age 9) agin in October, 2010 at the agency office in Sydney. He absolutely refused to talk to me and would not even come into the office. He insisted on leaving the building and would not stay to meet with me. C.(age 9) requires a great deal of constant supervision by his primary care givers. [161] Ms. Fraser Hill states that upon her review of the file material and family history it is clear that both J.H and C.

H(age 9) have significant behavioural challenges that will require counselling and treatment on an ongoing and consistent basis in the future.

[162] Ms. Fraser Hill is of the view that C. H.( age 9) and J. H. require a stable family environment and ongoing counselling andtreatment to deal with their behavioural challenges and educational needs. [163] Ms. Fraser Hill also states as page 3 of her report: Given the severity of the children’s problems, it will be challenging for the primary care giver to cope with the behaviours, followthrough consistently with recommended treatment and provide appropriate discipline and a safe environment.

The children wouldrequire constant supervision, especially C.( age 9) who has very recently been physically aggressive at school, struggling academically,having outbursts of unpredictable anger, suicidal ideations and has caused harm to animals. [164] Ms.

Fraser Hill nonetheless acknowledges that the children have a close bond with their parents and siblings and truly miss theirfamily, BURDEN OF PROOF [165] A proceeding pursuant to the Child and Family Services Act is a civil proceeding NS.(MCS)v DJM [2002] NST No368CCA). [166] The burden of proof is on a balance of probabilities which is not heightened or raised because of the nature of the proceeding. IC(

R) v McDougall 2008 SCC 53 , [2008], 3SCR 41, The Supreme Court of Canada held at paragraph 40: 40 Like the House of Lords, I think it is time to say, once and for all in Canada there is only one civil standard of proof at common lawand that is proof on a balance of probabilities. Of course, context is all important and a judge should not be unmindful, whereappropriate, of inherent probabilities or improbabilities or the serousness of the allegations or consequences. However, theseconsiderations do not change the standard of proof.

I am of the respectful opinion that the alternatives I have listed above should berejected for the reasons that follow: 45 To suggest that depending upon the seriousness, the evidence in the civil case must be scrutinized with greater care implies that inless serious cases the evidence need not be scrutinized with such care. I think it is inappropriate to say that there are legally recognizeddifferent l

[…]