Nunavut ( Director of Child and Family Services) v. A.S. and D.P., 2014 NUCJ 13

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: Nunavut ( Director of Child and Family Services) v. A.S. and D.P., 2014 NUCJ 13 Date of Judgment (YMD): 20140403 Docket Number: 08-13-272 CHW Registry: Iqaluit Applicant: Director of Child and Family Services -and- Respondents: A.S. and D.P. ________________________________________________________________________ Before: The Honourable Mr. Justice E.

Johnson Counsel (Applicant): Sandra MacKenzie Counsel (Respondent D.P.): Jack Squire Counsel (Respondent A.S.): Unrepresented Location Heard: Iqaluit, Nunavut Date Heard: March 26, 2014 Matters: Child and Family Services Act, S.N.W.T. 1998, c. 13, as amended by statutes enacted under

section 76.05 of the Nunavut Act S.C. 1993, c. 28 ; and Adoption Act, S.N.W.T. 1998 c. 9 , s 36(2), as duplicated for Nunavut by s.29 of the Nunavut Act, S.C. 1993, c. 28. REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) Amended Decision: An amended decision was issued on April, 3 2014; the corrections have been made to the text and the amendment is appended to this judgment.

I. INTRODUCTION [ 1 ] On June 4, 2013 the Director of Child & Family Services [Director] applied for permanent custody of the five-year old child J. S. [ 2 ] The trial is scheduled for May 20-21, 2014. [ 3 ] On February 14, 2014, the Director filed an Application for

Summary Judgment [Application] and I heard oral argument on March 25. [ 4 ] D.P. [father] opposed the Application. Counsel for the A.S. [mother] filed a Notice of Ceasing to Act and A.S. did not appear at the hearing. II. EVIDENCE [ 5 ] The Director relies on four affidavits sworn by Courtney Henderson [Henderson] between June 3, 2013 and February 14, 2014. The father filed an affidavit sworn on June 11, 2013. [ 6 ] The evidence relied on by the Director is comprehensive and undisputed. [ 7 ] The child J.S. was born on April 28, 2009 and is five years old.

The Respondents are his biological parents. [ 8 ] The Director has been involved with J.S. since he was three days old. On two occasions the Director became involved because of alleged abandonment and inappropriate behavior by the mother and father. On May 1, 2009, J.S. was apprehended, but was returned with 72 hours. In October 2009, J.S. was found at home unattended and was brought into care. He was returned within 72 hours. [ 9 ] On July 8, 2011 the father asked the Director to care for J.S. for a short time because he was struggling to find housing and there was no one else who could care for the child.

He also intended to go away to Cape Dyer to work to pay off his arrears to the Iqaluit Housing Authority. The parties entered into a six-month Voluntary Support Agreement and J.S. was taken into care. The mother was not involved in this agreement as J.S. had been in father's care for over a year and the mother refused to care for J.S. [ 10 ] J.S. has been in the Director's care since July 8, 2011.

At the expiry of the Voluntary Support Agreement in January 2012, the father requested that J.S. stay in care. [ 11 ] Between January 2012 and June 2013, J.S. was in the Director's care under three Plan of Care Agreements. Both parents agreed to work towards certain goals in the Plan of Care Agreements. The father agreed to work towards paying off his arrears to the Iqaluit Housing Authority, to obtaining stable housing, to addressing substance abuse issues by attending mental health counseling, and to be consistent with access visits.

The mother agreed to work toward obtaining stable housing, to being consistent with access visits, to seeking employment, to stop drinking, and to seeking counseling for grief issues and other concerns in her past. [ 12 ] The parents did not meet the goals of their respective Plan of Care Agreements. Neither parent attended mental health counseling, regularly attended access visits, or obtained stable housing. [ 13 ] In May of 2013, after J.S. had been in the Director's care for approximately 22 months, the Director decided to apply for the permanent custody of J.S.

Henderson discussed the decision of the Director with the father.

The father agreed that a permanent custody order was in J.S.’s best interest because he did not have stable housing, his current girlfriend was seven months pregnant, and he would not be going to work at the Cape Dyer mine site again in June. [ 14 ] Henderson was unable to meet with the mother because she had not come into the office for any access visits during the January- May period of 2013 and she did not have a phone. [ 15 ] The Director filed the application for permanent custody on June 4, 2013 and the matter was listed for the June 2013 docket. [ 16 ] On June 11, 2013 the father’s lawyer filed an affidavit sworn on June 11, 2013 and requested an adjournment to allow more time for both parents to resume attendance at access visits and to allow the father more time to obtain housing.

Although the Director opposed the adjournment, the court adjourned the application to September 19, 2013. [ 17 ] The mother had one access visit over the summer on August 2, 2013.

Her last access visit before that had been on December 20, 2012. [ 18 ] The father did not attend any access visits over the summer of 2013, despite being in Iqaluit for most of the summer. [ 19 ] Neither parent obtained stable housing during the summer of 2013. [ 20 ] When the application came up in court on September 19, 2013, it was again adjourned to October 22 because the mother had just obtained a lawyer. [ 21 ] On October 22 the lawyers for the parents appeared in court and opposed the Director’s application. The application was adjourned

to set a trial date and for further disclosure of evidence. [ 22 ] Neither parent had any access visits in the fall of 2013 because both parents were involved in unstable relationships and had some incidents of suspected domestic violence. [ 23 ] Since the trial date was set on December 12, 2013, neither parent had an access visit with J.S. [ 24 ] On January 17, 2013 the Director proposed a meeting of all parties to discuss the possible resolution of this matter.

Although both parents agreed to attend, neither parent attended the meeting. [ 25 ] The foster family is willing to provide long-term care of J.S. and will take steps to adopt him if a permanent custody order is granted. [ 26 ] The father acknowledges that he does not have his own residence. However, he has worked very hard to pay back the $12,800 arrears he owed to his landlord that resulted in his eviction in 2003. [ 27 ] At the time J.S. was born the father was living with his sister and cared for J.S. at her home. She moved to Ottawa two years later and the father lost his housing.

As a result of the loss of housing he had nowhere to stay and had to enter into the voluntary agreement with the Director for the care of J.S. [ 28 ] Since his sister moved to Ottawa the father has worked at two jobs to pay back the arrears on his rent so that he could then become eligible for housing through Iqaluit Housing. In the fall of 2012 the father finally paid off all the arrears of rent owing to Iqaluit Housing and is now on a list for housing. He renews his application every three months but does not know when a unit will become available.

He has also saved $4,000 so that he can satisfy Iqaluit Housing that he can be trusted with a new unit. [ 29 ] The father acknowledges that his access to J.S. has been inconsistent. Some of the inconsistent access was because he was out of town working and some of it because of jealousy from his current common law spouse. She was jealous of his past relationship with the mother.

She was pregnant and wanted him to burn the bridges with the past including giving up his relationship with J.S. [ 30 ] The father’s new spouse is about to have a child and he is trying to determine if it will be possible to reconcile this relationship with his desire to have J.S. in his life. [ 31 ] The father regrets that he has distanced himself from J.S. in the past but knows that J.S. regards him as his father and loves him. [ 32 ] The father admits he has a substance abuse problem but that problem was never a factor in J.S.’s apprehension.

He was able to provide a good home for him until he lost his residence and is willing to go to a treatment facility if a mental health counselor will support it. III. ARGUMENT A. Director [ 33 ] The Director relies on

Section 80 of Child and Family Services Act, S.N.W.T. 1998, c. 13, as amended by statutes enacted under

section 76.05 of the Nunavut Act S.C. 1993, c. [the Act]; and Rules 174-184 of the Rules of the Supreme Court of the Northwest Territories, NWT Reg. R-010-96, as duplicated for Nunavut by s. 29 of the Nunavut Act, S.C. 1993, c. 28 [Rules] to request

summary judgment granting the Director permanent custody of J.S. [ 34 ] Rule 176(1) provides that in response to the affidavit material or other evidence supporting an application for

summary judgment, the respondent may not rest on the mere allegations or denials in his or her pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue for trial. [ 35 ] Rule 176(2) provides that where a court is satisfied that there is no genuine issue for trial, with respect to a claim or defence, the Court shall grant

summary judgment accordingly. [ 36 ] Rule 27 provides that the Court may summarily dispose of the questions arising on an application, make such order as to the nature of the case requires and give such directions as it considers proper for the trial of any questions arising on the application. [ 37 ] Since there are no cases from this court dealing with

summary judgment the Director relies on Kila v The Commissioner of the NWT (DOT), 2011 NWTSC 37 at para 9 [Kila] , and Valic v Workers’ Compensation Board, 2010 NWTSC 97 [Valic] . Both cases held that that on a

summary judgment the question for the court is whether there is a genuine issue for trial. The objective is to screen out claims that, based on the evidence provided, ought not to proceed to trial because they cannot withstand a good hard look. A judge hearing such an application is entitled to assume that the parties have "put their best foot forward" and would present no additional evidence at trial. [ 38 ] The Director argues that the principles of

summary judgment from Kila and Valic are also applicable in child protection cases as seen in Children’s Aid Society of Hamilton v K.F., 2014 ONSC 576 , [2014] OJ No 429 .

[39] In Children's Aid Society of Metropolitan Toronto v A. (M ), (ON CJ), [2002] OJ No 2371, 114 ACWS (3d)676 (Ont. C.J.) [A.M.], Spence J. held that the moving party must present a prima facie case of

summary judgment to the court. In orderto have a useful and effectively

summary judgment rule, a party answering a motion for

summary judgment cannot just rest on balddenials or self-serving evidence, they must put their best foot forward, showing that there is a genuine issue for trial. The respondingparty must provide evidence of specific facts showing that there is a genuine issue for trial. In other words, once the moving party showsthat there is no genuine issue for trial, the responding party must provide that his or her defence has a real chance of success. [40] In Niagara Region v S.C., (ON SC), [2008] OJ No 3969, 61 RFL (6th) 328 (Ont SCJ), A.

Pazaratz J. held thatno genuine issue for trial exists where there is no realistic possibility of an outcome other than that sought by the applicant. Thegenuineness of the issue for trial must arise from something more than a heartfelt expression to be given an opportunity to parent. [41] As held by Waldman J. in Jewish Child and Family Services of Toronto v A. (R.), [2001] OJ No 47, (ON CJ),on an application for

summary judgment a court should proceed with caution. It is not, however, limited to or granted only in the clearestof cases. The Court must ensure the best interests of the children are adequately addressed on the available evidence. If the evidencedoes not raise triable issues as to where the best interests lie, those best interests themselves call for a resolution without the delayassociated with the trial and the resulting prolongation of the state of uncertainty about the children's future. [42] In Hryniak v Mauldin, 2014 SCC 7 at para 5 [Hryniak], the Supreme Court of Canada reviewed the principles of

summaryjudgment. Justice Karakastanis commented that "summary judgment rules must be interpreted broadly, favouring proportionality and fairaccess to the affordable, timely, and just adjudication of claims”. A trial is not required if a

summary judgment motion can achieve a fairand just adjudication. [43] The Director relies on these authorities to argue that

summary judgment should be granted if the Director can satisfy this court thatthere are no genuine issues for trial. [44] A child protection hearing is a two-stage process. First, the Court must find that a child is in need of protection pursuant to section7(3) of the Act. Once a court has made a finding that a child is in need of protection, the second step is for the Court to determine theappropriate disposition pursuant to

section 28 of the Act. A.1 Need of Protection [45] The Director submits there is no triable issue on the first stage test for the following reasons: (

a) Both parents are in volatile relationships with new partners. The mother was recently the victim of a violent assault by her newpartner and is back living with him despite a no-contact order, and the father has admitted to assaulting his new partner; (

b) D.P. has not seen J.S. in over a year. His last visit was on January 4, 2013. (

c) A.S. last saw J.S. once over the last year on August 2, 2013. Her last visit before that was on December 20, 2012; (

d) Neither parent has a stable place to live where it would be safe for J.S.; (

e) Neither parent has demonstrated the desire to engage with the Director or to show up to scheduled meetings; and (

f) Neither parent has put forward any realistic plan to have J.S. returned to their care. [46] The Director applied for permanent custody almost one year ago and the parents have done nothing to indicate to the Director that itis in the best interests of J.S. to have him returned to their care. [47] The parents’ actions are not consistent with their position that they want J.S. returned to their care. A.2 Appropriateness of Permanent Custody Order [48] The possible outcomes for a child protection order are set out in

section 28 of the Act. This Court can return the child to the parents,with or without terms, make a temporary custody order, or make a permanent custody order. [49] It is the Director's position that there is no triable issue with respect to disposition in this matter.

If this application proceeded to ahearing, there is no realistic possibility of an outcome other than a permanent custody order. [50] As set out by Judge Malakoe in the decision Re: S.S. and H.S., 2011 NWTTC 12 [S.S.], the test for whether or not a permanentcustody is the appropriate disposition is whether there is a substantial likelihood that within a reasonable time period from the date ofmaking a child protection order, either one or both parents will be in a position to provide sustained care for the child.

[ 51 ] Judge Malakoe also indicated that a court should look at the impediments of each parent that prevent him or her from providing adequate care and determine if these can be remedied within a reasonable period. If they cannot be remedied in a reasonable time it is not in the best interest of the child to be subject to a temporary custody order. [ 52 ] The Director submits that it is in J.S.’s best interests to be placed in the permanent custody of the Director because neither parent has stable housing, both are in volatile violent relationships, and neither has been exercising regular access.

Furthermore there is no prospect that they will remedy these problems within a reasonable time. A.2.i Unstable Housing [ 53 ] Neither parent has a stable place to live where it would be safe for J.S., as evidenced by the following facts: (

a) The mother has lived with a friend who drank too much and now she lives either with her new partner or in a one-bedroom apartment with her mother where there is frequent drinking; (

b) The father does not have stable housing. He moves between his new partner’s house, his sister's house, and the men's shelter in Iqaluit. A.2.ii Volatile Relationships [ 54 ] Both the father and mother are in violent, volatile relationships as evidenced by the following facts: (

a) The mother reported to the Director on December 23, 2013 that her partner R. had assaulted her on December 21, 2013, was charged with assault and was awaiting his bailing hearing. She told Henderson that she was afraid of R. coming home as he may beat her up again. The mother also said that R. hits her sometimes when he has been drinking. (

b) The father has admitted to an incident when he pushed his partner B. down the stairs when she was seven months pregnant. On August 13, 2013, the father admitted to the Director that he "snapped " when he pushed B. down the stairs and he "can't control himself". (

c) On Friday December 13, 2013, Henderson asked the father where he had been since the last court date in October 2013. The father said that he had been fighting and drinking regularly with B. The father said that their fighting was causing a great deal of stress that resulted in his drinking. (

d) On December 18, 2013, RCMP attended as the father’s house because the father and B. were the subject of a complaint wherein both parties were intoxicated and the father had punched a hole in the wall. A.2.iii Access [ 55 ] Neither parent is exercising regular access to J.S. Overall, their stated intention to have J.S. returned to their care is inconsistent with their lack of attendance at access visits: (

a) The father has not seen J.S. in over a year. The last time he had an access visit was January 4, 2013; (

b) The mother has not seen J.S. in over six months. She attended one access visit on August 2, 2013. Her last visit before that was on December 20, 2012; (

c) Both parents have had the opportunity to visit J.S. every week, except for the period of two-three weeks when J.S. was away over the Christmas holidays with his foster parents. [ 56 ] Neither parent is actively engaging with the Director in an effort to regain custody of their son. There is significant evidence of a failure to attend scheduled meeting and a failure to follow-up on requests made by the Director. [ 57 ] J.S. is doing well is his current foster placement and at his current daycare. The impulsive and aggressive behaviours that J.S. was displaying when he was first placed in care have improved.

J.S.’s cognitive awareness and language skills have also developed. He is finally in a stable and secure environment. J.S.'s current foster parents will continue to care for him long-term and will consider adoption if a permanent custody order is granted. [ 58 ] Neither parent has proposed a realistic plan for the care of J.S. To date, neither parent has submitted any affidavit evidence in response to this motion. There is no factual basis that would support a realistic belief that the parents have taken concrete steps to address

any of the issues that led to J.S. being in care in the first place. The parents have not submitted any real or credible plan. [ 59 ] Returning the child to either parent is not safe or appropriate. Neither parent has seen J.S. in over six months. Both parents seem preoccupied with their own issues. Returning the child to either parent under a supervision order is not a realistic or safe option. Neither parent has a stable place to live. Both parents have demonstrated that they cannot be entrusted to cooperate with the Director. [ 60 ] J.S. has already been in the Director's care for 33 months.

That is two years and nine months, more than half of his life. J.S. requires permanence and stability and a chance at a future life with stable and loving caregivers. No less disruptive alternative is available to protect this child. B. Father’s Arguments [ 61 ] The father is opposed to the application and is concerned with the precedent a

summary judgment will set in child welfare proceedings in Nunavut. [ 62 ] The father acknowledges the change in the law of

summary judgments resulting from the Hryniak judgment. However, that case also indicated the need for a contextual analysis because of the serious form of relief requested in this case. While there may be no triable issue with a temporary order, there is one where the Director seeks an order for permanent custody. [ 63 ] The father emphasized that Hryniak was based on the new Rules of Civil Procedure, RRO 1990, Reg 194 [Ontario Rules] that broadened the grounds for

summary judgment. The old rule, that

summary judgment should not be granted unless there is no triable issue, is still applicable in Nunavut. [ 64 ] The father argues that all is not grim in his life. J.S. was not apprehended from him. He sought help from the Director when he lost his housing. He also asked that this court take judicial notice of the significant housing problem in the territory. It sometimes takes years to obtain housing. [ 65 ] The father pointed out that J.S. has only been in custody because of a court order for 10 or 11 months.

The rest of the time J.S. was in care under Voluntary Care Agreements with the first court order being granted on June 2, 2013. There is still a significant amount of time before the 24 months rule specified in section 28(10) of the Act takes effect. [ 66 ] Although the father has not exercised much access, there was no trouble when he did have access visits. [ 67 ] The father acknowledges he did not put his best foot forward and continues to deal with substance problems.

He promised to take treatment but did not keep with his promise. [ 68 ] The father does not dispute the evidence of the Director about the lack of access and his anger management issues. However, it is still possible that he may be able to turn things around between now and the date of the trial in May so that this court may grant another temporary custody order. [ 69 ] If this court grants

summary judgment, the father argues, he should be granted access until the time an adoption order is made. Granting him access would then permit the court to review the order at the time of the adoption as provided in section 36(2) of the Adoption Act S.N.W.T. 1998, c. 9 , and duplicated for Nunavut by s.29 of the Nunavut Act, S.C. 1993, c. 28 . C.

Director’s Reply [ 70 ] In reply, the Director suggested that in lieu of granting the father access in the permanent order this court should consider making an order that the parents be given notice of the adoption proceedings so that the question of access could be addressed at the time of the adoption. IV. ANALYSIS [ 71 ] Rules 174-184 are the Rules that deal with

summary judgment. Although the rules have not been applied in Nunavut to a child welfare matter they have been applied in other litigation. I summarized the rules at paragraphs 17-21 in Nunavut Tunngavik Inc. v Canada (Attorney General), 2012 NUCJ 11 , [2012] NuJ No 16 [NTI] . I adopted the test set out below by Vertes J. in Norn v Stanton

Regional Hospital, (NWT SC), [1998] N.W.T.J. No. 88 at para 17, 26 CPC (4th) 276: The test on a

summary judgment motion is well-known. The motions judge must take a hard look at the evidence to determine whetherthere is a genuine issue for trial: see 923087 N.W.T. Ltd. v. Anderson Mills Ltd., (NWT SC), [1997] N.W.T.R. 212(S.C.), at pages 221 - 223. If there is no genuine issue for trial, the court must grant

summary judgment: Rule 176(2). And, if the onlygenuine issue is a question of law, the court may, not must, determine that question and grant

summary judgment: Rule 176(4). The"genuine" issue is usually one of fact or one of mixed fact and law, but it may also be one of pure law where, as here, the state of the lawis in flux. The case law, even while recognizing that a

summary judgment motion is an effective way of avoiding expensive and lengthylitigation, demands that it must be clear that a trial is unnecessary to resolve the issues. (NTI at para 21) [72] The Ontario Rules were amended in 2010 to expand the use of the

summary judgment procedure. They read as follows: 20.04 ... (2) [General] The court shall grant

summary judgment if, (

a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or (

b) the parties agree to have all or part of the claim determined by a

summary judgment and the court is satisfied that it is appropriate to grant

summary judgment. (2.1) [Powers] In determining under clause (2) (

a) whether there is a genuine issue requiring a trial, the court shall consider the evidencesubmitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for thepurpose, unless it is in the interest of justice for such powers to be exercised only at a trial: 1. Weighing the evidence. 2. Evaluating the credibility of a deponent. 3.

Drawing any reasonable inference from the evidence. (2.2) [Oral Evidence (Mini-Trial)] A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oralevidence be presented by one or more parties, with or without time limits on its presentation. [73] As set out in the headnote in Hryniak, the respondents invested money with Hryniak and his company, Tropos. Tropos wired thefunds to an offshore bank and the funds disappeared. The respondents lost their investment. The respondents brought an action for civilfraud against Hryniak, during which they brought motions for

summary judgment. The motion judge concluded a trial was not requiredagainst Hryniak. [74] The motion judge used his powers under Rule 20.04(2.1) to weigh the evidence, evaluate credibility, and draw inferences. Heconcluded that a trial was not required against Hryniak. [75] The Ontario Court of Appeal denied the appeal. Karakatsanis J. for the Supreme Court of Canada upheld the decisions of the trialjudge and Court of Appeal and denied the appeal.

She noted that Rule 20.04(2.1) changed the test from asking whether the case presents“a genuine issue for trial” to asking whether there is a “genuine issue requiring a trial”. While recognizing that the Ontario rule goesmuch further than the traditional rule, Karakatsanis J. indicated that: To that end, I conclude that

summary judgment rules must be interpreted broadly, favouring proportionality and fair access to theaffordable, timely and just adjudication of claims (Hryniuk at para 5). [76] The Ontario cases cited by the Director demonstrate that these principles are equally applicable to child welfare cases. [77] The father accepted that there is no issue that the child is in need of protection. The only issue is whether a trial is necessary todecide if this court should grant an order giving the Director permanent custody of J.S. [78] As held in Valic, Kia, and A.M., on a

summary judgment both parties are required to put their “put their best foot forward”.

[ 79 ] I accept that the test I must apply is that described by Judge Malakoe in S.S. Is there a substantial likelihood that within a reasonable time period from the date of the making of the child protection order, either or both of the parents will be in a position to provide sustained adequate care for the children? [ 80 ] The Director has filed overwhelming evidence that J. S. needs the continuity and stability he has received with the foster parents and that I am required to consider by s. 3(

d) and s. 3(

e) of the Act. It is significant that they have indicated a desire to adopt J.S. if a permanent order is granted. [ 81 ] It is also clear to me that the father and mother are still struggling to live healthy balanced lifestyles. They are not in a position to provide J.S. with the care he needs and will not be for the foreseeable future. They are overwhelmed by the own lives and have little time for J. S. This lack of ability to care for J.S. is borne out by their access record. The mother saw J.S. six months ago, and prior to that had not seen him for over a year.

The father has not seen him in a year. [ 82 ] The mother did not appear at the hearing and her lawyer ceased acting for her. The father’s lawyer appeared at the hearing and put forward the best argument he could, but it is significant that the father was not at the hearing and had not been in contact with his lawyer for several months. [ 83 ] The father’s best foot forward does show some concrete action to deal with his problems, but it is too little, too late. His evidence is somewhat dated and amounts to a heartfelt expression of a desire to be given an opportunity to parent.

J.S. has waited has been in the care of the Director for 33 months and has waited long enough. [ 84 ] I am satisfied that there is no genuine issue for trial about the ability of the parents to provide sustained care for J.S. within a reasonable time and grant the motion for

summary judgment. The trial date on May 20 and 21, 2014 is cancelled. [ 85 ] The child, J.S., is placed in the permanent custody of the Director with the parents entitled to reasonable access, pending placement for adoption, in the discretion of the Director as is consistent with the best interests of J.S. [ 86 ] I direct the Director to serve the parents with a notice of motion requesting the adoption order and set it down for a regular Chambers date rather than proceeding ex parte with a memorandum. Dated at the City of Iqaluit this 3rd day of April, 2014 ______________________ Mr. Justice Earl D. Johnson Nunavut Court of Justice

___________________________________________ Amendment of the Reasons for Judgment Reserved of The Honourable Mr. Justice Johnson ___________________________________________ After releasing the judgment in this application Counsel for the Director and the father contacted the Clerk to address a misunderstanding I had about positions of counsel on the question of the access of the parents pending an application for adoption. After a conference call with counsel that misunderstanding has been resolved and I now add the following correction to the judgment.

Paragraph [85] of the judgment has been changed from: “The only other issue is the question of access. I am concerned that continued access pending an adoption would be disruptive to J.S. and foster parents. He exhibited some problematic behaviour early in his care that seems to have moderated. The family needs some time to adjust to the reality of an adoption and formal legal access is best decided at the time the adoption order is granted. The Director and foster parents may of course arrange informal access in their discretion if it is the best interest of J.

S. to do so.” to: “The child, J.S., is placed in the permanent custody of the Director with the parents entitled to reasonable access, pending placement for adoption, in the discretion of the Director as is consistent with the best interests of J.S.”