2014 MBPC 56, 2014 MBPC 56

S.C.F.S. v. D.A.F and L.R.M. Citation No. 2014 MBPC 56 THE PROVINCIAL COURT OF PINEFALLS, MANITOBA IN THE MATTER OF: The Child and Family Services Act, C.C.S.M. 1985, c. C80 IN THE MATTER OF: T.L.M., born the […] 1998 AND IN THE MATTER OF: T.G.M., born the […]1999 AND IN THE MATTER OF: B.B.J.L.M., born the […] 2002, AND IN THE MATTER OF: L.Y.S.M. born the […]2003 BETWEEN Southeast Child and Family Services ) ) Kenneth Muys, for the Petitioner ) - and – ) ) D.A.F. and L.R.M. ) ) Douglas Mayer, for D.A.F. and Donald Henderson, for L.R.M. ) ) Judgment delivered: ) October 23, 2014 MOAR, KELLY, P.J.

Introduction [ 1 ] An Application has been brought by Southeast Child and Family Services (“Southeast CFS”) seeking a Permanent Order of Guardianship on the four subject children. The biological mother of the children, D.A.F. (“Ms. M”) opposes the order being sought and has expressed a wish to parent the children on her own. The biological father of the children, L.R.M. (“Mr. M”), is not seeking the return of the children to his care and takes the position of supporting the plan of Ms. M to parent the children. He takes the position of supporting the plan of Ms.

F. [ 2 ] The parties to this application are T.L.M. (“T.L.”), who is now sixteen years of age; T.G.M. (“T.G.”), who is now fourteen years of age; B.B.J.L.M. (“B”), who is now twelve years of age and L.Y.S.M. (“L”), who is now ten years of age. At the time of their apprehensions they were resident at the family home in their home community. [ 3 ] The issues before this court are: 1. Were the children in need of protection from their parents when Southeast Child and Family Services apprehended them? 2. If so, do the four children still remain in need of protection? 3.

If so, is the granting of Permanent Orders in the best interests of each of the children? [ 4 ] The pertinent sections under the Child and Family Service Act (“the Act”), C.C.S.M. 1985, c. C80 are: Child in need of protection

17(1) For purposes of this Act, a child is in need of protection where the life, health or emotional well-being of the child is endangeredby the act or omission of a person. [5] The

interpretation of s. 17(1) of the Act is expanded upon in s. 17(2) which highlights the types of scenarios that may support afinding that a child is in need of protection and is as follows: Illustrations of child in need 17(2) Without restricting the generality of subsection (1), a child is in need of protection where the child (

a) is without adequate care, supervision or control; (

b) is in the care, custody, control or charge of a person (

i) who is unable or unwilling to provide adequate care, supervision or control of the child, or (ii) whose conduct endangers or might endanger the life, health or emotional well-being of the child, or (iii) who neglects or refuses to provide or obtain proper medical or other remedial care or treatment necessary for the health or well-being of the child or who refuses to permit such care or treatment to be provided to the child when the care or treatment is recommendedby a duly qualified medical practitioner; (

c) is abused or is in danger of being abused, including where the child is likely to suffer harm or injury due to child pornography; (

d) is beyond the control of a person who has the care, custody, control or charge of the child; (

e) is likely to suffer harm or injury due to the behaviour, condition, domestic environment or associations of the child or of a personhaving care, custody, control or charge of the child; (

f) is subjected to aggression or sexual harassment that endangers the life, health or emotional well-being of the child; (

g) being under the age of 12 years, is left unattended and without reasonable provision being made for the supervision and safety ofthe child; or (

h) is the subject, or is about to become the subject, of an unlawful adoption under The Adoption Act or of a sale under

section 84. [6] At the conclusion of the hearing, if the court finds that the children were and do still remain in need of protection, the availableorders for this court are detailed under s. 38(1) of the Act as follows: Orders of the judge 38(1) Upon the completion of a hearing under this Part, a judge who finds that a child is in need of protection shall order (

a) that the child be returned to the parents or guardian under the supervision of an agency and subject to the conditions and for theperiod the judge considers necessary; or (

b) that the child be placed with such other person the judge considers best able to care for the child with or without transfer ofguardianship and subject to the conditions and for the period the judge considers necessary; or (

c) that the agency be appointed the temporary guardian of a child under 5 years of age at the date of apprehension for a period notexceeding 6 months; or (

d) that the agency be appointed the temporary guardian of a child 5 years of age or older and under 12 years of age at the date ofapprehension for a period not exceeding 12 months; or (

e) that the agency be appointed the temporary guardian of a child of 12 years of age or older at the date of apprehension for a periodnot exceeding 24 months; or (

f) that the agency be appointed the permanent guardian of the child. [7] If the court concludes that the children were not, or are not, in need of protection, this court must then order the return of thechildren to the mother. [8] In terms of the burden of proof, it is upon Southeast CFS to show, on a balance of probabilities that the children were, and stillremain, in need of protection. In addition it is also their burden to show that the granting of Permanent Orders is in the best interests ofeach of the children individually. As was noted in by Mr.

Justice Little in Manitoba (Director of Child and Family Services) v. D. (T.H.)(2004) 2004 MBQB 276 , CarswellMan 525 (Q.B.) @ para. 14: “If the Director establishes a prima facie case for need of protection and there is no reliable cogent evidence called to erode that case, theDirector will have discharged its onus on the issue of protection.” [9] The crux of the agencies case comes from the evidence of Ms. Donna Smith, who is the agency social worker for this family,and Mr. Ithan Bullard, who completed a Parental Capacity Report.

Before dealing with those witnesses, there were other witnesses theagency called in support of their application.

Agency Evidence S.S. [ 10 ] Ms. S.S. testified that she is fifty-three years of age and has been married for thirty-one years. She and her husband currently reside in a three bedroom home in Seymourville, Manitoba which is about a five minute bus ride from the local school. Her husband is gainfully employed in the community and neither of them consumes alcohol. [ 11 ] They have two biological children of their own as well as one other child whom they adopted and raised. Those children are now on their own which leaves B. as the only child living in the home. [ 12 ] Ms.

S.S. has been fostering through World Vision for about twenty-six years and their home is a licensed foster home by Southeast CFS. She began fostering B. on February 27, 2012 and advised that the parents of the child are cousins of hers. [ 13 ] When B. first came to her home he presented with difficulties in terms of his interpersonal skills and ability to get along with others. He had a tendency to pick on other children, swear at them and even went so far as to get into fights with other children. That type of behavior has led to B. really having only a couple of friends. [ 14 ] Ms.

S.S. has dealt with B. by explaining to him that his behavior is not right and has seen some improvement. She and her husband have chosen not to use physical discipline in dealing with B. but rather have disciplined him by grounding him from television as well as by taking away his games. His behaviour has been getting better and there has been a reduction in the number of fights he has been involved in. [ 15 ] Academically B. has been moved into a grade six class although he is still doing grade five level work. Even with this Ms.

S.S. has noted that B. has shown improvements in his academics. [ 16 ] With respect to his siblings, B.’s younger sister is being fostered by a sister of Ms. S.S.. That home is about five minutes away and as a result of the relationship between the foster parents B. sees his sister often as Ms. S.S. has regular contact with her sister. [ 17 ] It is Ms. S.S.'s view that B. has bonded with her as he has shown more affectionate behaviour of hugging and tickling her. She has taken him with her when she goes to visit her older children in Winnipeg and Niverville.

He is also currently scheduled to attend bible camp in the near future. [ 18 ] In cross-examination it was clarified that Ms. S.S. has fostered about fifteen children over the twenty-five year period of time. She acknowledged that one former foster child had to be removed from her home as that child alleged that Ms. S.S.’s daughter had abused her. That matter was investigated by the Royal Canadian Mounted Police (“RCMP”) and they concluded that what occurred was disciplinary action. In that matter there were no allegations of abuse made against Ms. S.S.. [ 19 ] In re-examination Ms.

S.S. understood that her daughter had asked the child to wash the dishes which the child did not want to do that. As indicated, there was no finding of abuse made by the police as a result of their investigation. [ 20 ] As for visits, B. was initially going twice a month and that has now been reduced to one visit a month. The visits have occurred as scheduled but for one occasion where the mother cancelled the visit. [ 21 ] Prior to B. coming into her care Ms. S.S. indicated that she did have very limited contact with him in the community.

She was unaware of what his behaviour had been in school while he was living at the family home. [ 22 ] Ms S.S. is aware that B. has allergies that necessitate he always have an epipen with him. She has told him to take the epipen with him on his visits and despite leaving it out for him, he has gone on visits without taking it. Ms. S.S. did address this with the child and he told her that he had simply forgotten to take it with him. She is aware of one occasion where he had consumed a food he should not of but fortunately he did not suffer a reaction. [ 23 ] Further in cross-examination Ms.

S.S. was confronted with an incident that was said to have occurred in May 2012 where Mr. Mayer suggested that she had left her family home with B. and moved in with her sister, M.W., as a result of marital issues. Ms. S.S. denied that suggestion but did speak of an incident in August 2012 where they did leave the home as her husband had consumed one beer which upset her. She and B. went to her sister T.L. home overnight before returning home the next day. [ 24 ] She was also asked about B. and his traditional drum and denied the suggestion that she had it removed from him.

She indicated that B. liked that drum and he made a decision that he wanted to take it back to his home, which she did not prevent from occurring. He has since taken up playing the fiddle and the guitar through the school. Ms. S.S. advised the court that B. had also brought a traditional shirt with him but it no longer fits him. [ 25 ] When asked about the use of respite, Ms. S.S. confirmed Southeast CFS has made P.M. available to take B. for periods of time when she needs time to herself.

This occurs less than once a month where she will take B. on a Friday evening and will keep him until Sunday before returning him back to Ms. S.S.’s home. [ 26 ] Ms. S.S. confirmed that she has no relationship whatsoever with the biological mother of B. In terms of contact with his siblings, she indicated that B. does have daily contact with each of them at school. M.W. [ 27 ] Ms. M.W. advised the court that she is currently fostering L. and has been doing so for about two years. [ 28 ] In terms of her background she described herself as being a second cousin to both of the parents.

She is forty-nine years of age and resides in a three bedroom home in the [indian reserve omitted]. The home is about one-half mile away from the community school.

[ 29 ] Ms. M.W. advised that she is not married and lives in the home with her nine year old daughter and a foster son who works at the local convenience store. L. has her own bedroom in this home. Ms. M.W. does consume alcohol about once every three months or so. [ 30 ] Ms. M.W. is a licensed foster home and initially began fostering when she thought she would not be able to have any biological children of her own.

She currently works as a finance clerk for the [indian reserve omitted] and has been doing that for about twenty years. [ 31 ] In terms of her relationship with L., she has taken her as her own child and does not treat her any differently than her own daughter. She spends most of her non-work time with the girls and at times has taken them to stay at a Winnipeg hotel in order for the girls to go swimming. She described the relationship between the two girls as being good and they always seem to be together. [ 32 ] As a family unit they do attend some community events as well as church on a weekly basis.

In that regard, L. is involved in the various bible camps that have been offered. [ 33 ] When L. first came into the home, Ms. M.W. described her as being very quiet. She has since adjusted and it is the view of Ms. M.W. that L. is now doing generally well. Academically, Ms. M.W. has had occasion to speak the teacher of L. and has been told she is doing well in school. That appears to be echoed in the feedback she has received from the report cards of L. that she has seen. [ 34 ] With respect to any discipline that is used, Ms.

M.W. indicated that she tries to talk to L. about her behaviour and at times will use a time out. She emphasized that she does not believe in the use of physical discipline and confirmed that there have not been any instances of physical discipline being used. [ 35 ] The worker, Donna Smith, continues to come out to the home on a twice a month basis to check on how things are going. Other than that, there has been one additional contact with CFS where Ms. M.W. was unsure of what to do when L. came back from a visit with her mother feeling very tired, with a sore throat and coughing. [ 36 ] Ms.

M.W. feels that she has bonded with L. and does miss her when she is gone for her family visits. It is her view that L. needs a lot of love and attention at this point in her life. [ 37 ] Since the placement of L. in her home, Ms. M.W. continues to periodically speak with the biological mother when she sees her in the community. As for the biological father, Ms. M.W. indicated that she has no relationship whatsoever with him. [ 38 ] In cross-examination it was confirmed that L. does not have scheduled visits with her sister, T.L., but does see her on a daily basis at school.

She would support visits between the two of them if that was requested. [ 39 ] Ms. M.W. was asked about L. having head lice. She confirmed that both L. and her daughter did have head lice during the last school year and she cleaned their hair on a daily basis when it became known to her. When pressed, Ms. M.W. agreed that the lice has been an on and off problem from February or March of 2012 up until July 2013. It did not surprise her to hear that on most family visits the mother has had to pick a bug or two out of her daughter’s hair.

In re-examination she confirmed that lice was a school related issue that affected a lot of the children in the school. [ 40 ] Ms M.W. confirmed that her daughter and L. were well acquainted with each other prior to the placement and agreed that they will probably continue their relationship no matter what happens with this Application before the court. G.F. [ 41 ] G.F. testified that she is the biological sister to the mother of the two girls that she is fostering. The girls came to her home about eighteen months ago and joined one other child that was already being fostered by Ms. G.F.. [ 42 ] Ms.

G.F. advised the court that she is forty-eight years of age, not married and has four adult children who all currently reside in the city of Winnipeg. She resides on the [indian reserve omitted] in a three bedroom home that is located across from the school. Each of the girls has their own bedroom in the home. [ 43 ] She is employed as a teacher at the local school and as a result is involved with many of the school held events. She does not smoke, does not drink alcohol and does she use any type of drugs without a prescription. [ 44 ] Ms.

G.F. noted that when the girls first came to her home they seemed to treat it as just a place to sleep and would only come home late at night. She has struggled with that type of thinking and has worked on getting the girls to understand that home is for more than sleeping. The girls also had trouble adjusting to the fact that there are rules in the home and more particularly have struggled with the idea that there was curfew for them to follow. Although they are now doing better with that issue of being home on time, it is not yet at 100 % compliance. [ 45 ] Another issue that became apparent to Ms.

G.F. is that the girls tended to physically fight with one another. That issue has been getting better with the girls now verbally fighting with one another as opposed to physically fighting. [ 46 ] Ms G.F. testified that she does not use physical discipline when dealing with the girls and has relied on grounding the girls or the loss of privileges. [ 47 ] The girls attend school on a daily basis and their academic performance has continued to improve to the degree that T.G. received a high achievement award this past year and T.L. passed all of her courses with a “B” average. [ 48 ] Ms.

G.F. did acknowledge that T.L. does continue to struggle and is a young lady who needs a lot of support, lots of hugs and touching. It is Ms. G.F.’s opinion that T.L. continues to suffer from low self-esteem and depression related issues. T.G. has been able to hide behind her social skills to mask any personal issues that she may be struggling with.

[ 49 ] Ms. G.F. believes that she and the girls have managed to bond with one another. She also believes their relationship is strong as the girls now come to her to speak about their personal issues. [ 50 ] Ms. G.F. testified that she loves her sister and still speaks with her in the community. As recently as a few days before testifying, she was told by her sister that she and the father of the children, L., were still living together in their house. Ms.

G.F. was not aware there was a no contact order in place between the parents at that time. [ 51 ] As for agency involvement, Donna Smith has maintained weekly contact with Ms. G.F. and visits the home on a monthly basis. [ 52 ] In cross-examination Ms G.F. acknowledged that both girls did leave her home the previous fall. They were gone for about two months and were considered by the agency to be AWOL. When they did return to her home the girls spoke to her about wanting to be back at home. In re-examination Ms.

G.F. was unable to say why exactly the girls had left her home for that period of time. [ 53 ] In terms of T.L.’s depression, Ms. G.F. indicated that she has not shared any details with her as to why she is depressed. Ms. G.F. has consciously avoided pressing T.L. on that issue and feels that she will share what is happening with her when she is ready. [ 54 ] Ms G.F. was asked about T.L. and did say that she will at times act out by skipping school. This, she believes, is consistent with her behaviour prior to coming into care and it is believed that is as a result of her being depressed.

In this regard she advised that T.L. is seeing a therapist through Southeast CFS and she supports that counselling. Donna Smith [ 55 ] By way of educational background, Ms. Smith advised the court she possesses a Bachelor of Social Work degree as well as a two year diploma as a sexual abuse worker. She is originally from the [indian reserve omitted] and began to work in the child welfare field in 2006. [ 56 ] She currently works for Southeast CFS and has a case load of about thirty-five files, one of which is this family that she took over in May 2011. Throughout her involvement with this family, Ms.

Smith made note of her contacts and has ensured that these notes were and are accurate. She advised the court the agency is seeking a permanent order of guardianship on all four children. [ 57 ] Her involvement with this family began prior to the apprehension of the children. In March of 2011 the agency had received a call from Ms. M. who expressed concerns about family violence and a lot of arguing occurring in the family home. Specifically Ms.

M. was concerned about the way she was being treated by her husband that included being called names and being the subject of various accusations by her husband. [ 58 ] In May 2011 the agency received a call about an adult son using drugs and being violent in the family home. At that point in time Ms. Smith indicated that the agency knew there was a lot of discord in the family home mainly as a result of Ms. M. generally being in Winnipeg to be with her mother who was sick and in the hospital. Her absence upset Mr.

M. and the arguing between the two parents on that issue was often overheard by the children. [ 59 ] In November 2011 the agency received a call from the school advising that T.G. wanted to speak with a worker. Ms. Smith attended and upon meeting with T.G. learnt that she had been away from the family home all weekend. On the Monday T.G. was given a message by her sister, T.L., from her father indicating that she had better get home that day or he was going to get her and whip her. She told Ms.

Smith that she was scared to return home and said that the reason she had originally left was because her father had hit her with his hand on her stomach and had been calling her various names. [ 60 ] Based on that information Ms. Smith made the decision to apprehend T.G. while continuing to conduct further investigation of these allegations. T.G. was later re-interviewed at the office and confirmed that she is often called names by her father, such as lazy bitch and the like. Given the disclosure of being hit and knowing that Ms. M. was not in the home, Ms.

Smith had safety concerns for T.G. and determined she was in need of protection. Had Ms. F. been in the home Ms. Smith suggested the agency could have probably worked with her at that time. [ 61 ] Ms. M. did return back to the community after this apprehension occurred and in an interview confirmed that T.G. is often called names by her father, including being a bitch, and is slapped on the head by him. [ 62 ] On November 29, 2011 the agency made a subsequent decision to apprehend the three remaining children in the home.

That decision was based on a finding that the parents have been generally neglecting the children as well as the presence of plenty of self- parenting situations by the children who were being left alone to look after themselves. Information had also been received from the children that they have witnessed physical fights between the parents and Ms. Smith felt that the parents required counselling to deal with these incidents of domestic violence. As a result she deemed the three remaining children to also be in need of protection and apprehended them. [ 63 ] When asked specifically about Ms. M., Ms.

Smith identified there were many occasions where she was not present to protect her children from the father or the older children who were living in the home. Ms. Smith also advised there had been a disclosure made by a younger child of having been sexually abused by one of the older siblings in the family home. In addition to the presence of this older sibling in the home who had allegedly sexually abused the younger children, there was some concern with another older male sibling in the home who it was alleged had been violent with the parents. [ 64 ] It was Ms. Smith’s position that Ms.

M. was being controlled by her husband to the degree that she could not protect the children from him. She also believed that Ms. M. was being treated in much the same way by her husband as he was treating the children. He was to be dominant within the family home and would swear and yell at all of them. [ 65 ] In a review of the family file, Ms. Smith advised this court that there was prior CFS involvement with the family that went back to the early 1990’s. Ms. Smith knew that the oldest of the nine siblings had been in agency care for a period of time. That was also the

case with the second oldest child who, in addition to having been in care, had also at one point been admitted into hospital for psychiatric related issues. [ 66 ] At the time of CFS intervention with the two older siblings, Ms. Smith was working for a community counselling agency and was involved with trying to assist the parents. At that time she noted Ms. M. to be very quiet and it was her impression that she did not want to voice anything that would go against her husband. Mr. M. always tried to present his family as being a good family with no problems.

He suggested that his family was one that used circles and smudging on a daily basis. [ 67 ] At the time the four children were apprehended, Ms. M. did speak with Ms. Smith and confirmed that the prior concerns were still occurring to this date. She specifically identified that her husband has always been jealous of other men and has often accused her of sleeping around. Ms.

Smith learnt that this type of behavior, as well as instances of domestic violence, have been ongoing. [ 68 ] Since the date of the apprehension there have been a number of additional incidents which have occurred that are concerning to the agency. [ 69 ] On May 1, 2012 Ms. Smith spoke to Ms. M. on the phone and was told by her that she and her husband had been in a physical fight. During the course of this fight she was punched in the neck by her husband did receive medical attention. [ 70 ] Later that same month, a neighbor called the agency to report there was a drinking party in progress at the family home.

The report was that Ms. M was in the home drinking with her adult children and in the wee hours of the morning Ms. M. could be heard yelling at one of her adult children. [ 71 ] In August 2012 the agency received another phone call from a community member who advised that they had witnessed both parents fighting with each other on the roadway. The caller had observed Ms. M. with a big rock in her hand and when the person stopped their car, Ms. M. came running to the car and got in. Ms. M. asked the caller to notify the police as Mr. M. was fighting her.

The driver of the car did not call police but did suggest to Ms. M. that she should contact the police and report the incident. According to the caller, she could detect the odour of alcohol on Ms. M when she got into the car. [ 72 ] On September 24, 2012 the RCMP notified the agency that as a result of an investigation, one of the older siblings in the family had been arrested and charged with sexually assaulting T.L., T.G. and B. All of the alleged incidents were to have occurred in the family home during times the accused had been left as the care giver for his siblings. [ 73 ] In January 2013 Ms.

M.W. came into the office and notified the agency that L. had fainted earlier that morning. The foster mother was very upset and it was her belief that the cause was L. having stayed up late during the visit with her mother. [ 74 ] During a March 2013 visit with the parents, the support worker who was dropping the children off for the hotel visit observed both parents in the hotel lobby arguing. She indicated that when B. saw his parents arguing he became very upset and said to the worker that he hates it when they argue like that. [ 75 ] On April 22, 2013 the agency was notified that Ms.

M. had been charged with the criminal offence of assault and Mr. M. was the complainant. The caller from Victim Services advised the agency that as a result of that incident there was now a no contact order in place between the parents. The only information made available to the agency about the incident is that it occurred in the family home and involved Ms. M. having a pool ball in a sock. [ 76 ] With respect to the father, Ms. Smith testified that she has not had any recent contact with him nor has he inquired of her as to how the children were doing.

He has also not requested any further visits with the children since his last visit that occurred in April 2013. [ 77 ] As for the children, Ms Sumner testified that the four children are not in one foster home due to limited spaces being available in the home community. However, the three foster homes that the children have been placed in are all in relative close proximity to one another. The children have continued to attend the same school which allows them to have daily access to one another. [ 78 ] In terms of the actual foster homes, Ms.

Sumner expressed having no concerns about the care each of the children is receiving in those homes. In addition to seeing the foster parents in the general community, Ms. Sumner continues to visit each of the homes on what can be generally stated to be a monthly basis. [ 79 ] During her visits to the G.F. home she has taken the opportunity to speak with the two girls to see how they are doing. It is her view that the girls have bonded well with their aunt and they have not expressed any concerns to her about the home. [ 80 ] As for the S.S. home, Ms.

Sumner believes that B. and the foster parents have also bonded fairly well with one another. Ms. Sumner described B. as being a high needs child who has had some difficulty in controlling his behaviour at school to the point that at times he has been somewhat disruptive. That behaviour has not really been evident during the times he is at the foster home. In her discussion with B., he has told her that he likes the home and in her view he appears to be happy in that home. [ 81 ] As for M.W., Ms. Smith described her as being a caring and nurturing foster parent to both L. and her own child.

There have been no concerns expressed to her about the home or the care that L. is receiving in the home. [ 82 ] Ms. Sumner acknowledged that she has had the chance to review the contents of the Parental Capacity Assessment (“PCA”) and it her understanding that the report has recommended that a permanent order be pursued on each of the children.

Also contained within the body of the report are recommendations outlining the various types of treatment that are suggested for each of the family members, individually, as well as for the family as a whole. [ 83 ] Since that report was prepared in June 2012, the two younger children have continued to remain in their same foster homes. That has not been the case for the two older girls who started to stay away from the foster home. That behaviour of the two girls being away from the foster home without permission and past curfew continued to escalate to the point that the girls were actually deemed to be

AWOL from the foster home. [ 84 ] That behaviour lasted for about two months during which time G.F. continued to stress to the girls that there were rules they needed to follow. At one point in time T.L. became very angry at the issue of the rules and essentially refused to return back to the foster home. Ms. G.F. expressed frustration with the biological parents for permitting the girls to stay in their home when they were not supposed to be there. It was because of this interference by the parents that Ms. G.F. told the agency that she no longer wished to foster either of the girls.

It was her view that the parents did not seem prepared to reinforce the need for the girls to return back to the foster home prior to the curfew. This behaviour by the parents and the girls concerned Ms. Smith as the agency was trying to offer the girls some structure in their lives as they had come from a home where there were no rules or routines. [ 85 ] Eventually the two girls were placed into an agency foster home that was located in a neighboring community. After about four days in that home, the girls requested to return back to the G.F. home and that was arranged by the agency.

It is the belief of Ms Smith that the girls were rebelling and testing when they initially left this foster home but since their return they have been doing better with the rules. [ 86 ] In terms of the mother undergoing or participating in therapy, Ms Smith is not aware of anything undertaken by her with the children. She is also not aware of any long term treatment program having been completed by the mother since June 2012 nor is she aware of any plans that the mother has to enter into any long term residential treatment program in the future. Ms.

Smith is also unaware of any plans the mother has to enter into any group therapy program or any programming that she may have completed since the children have come into care that addresses domestic violence. [ 87 ] Ms. Smith indicated an awareness of the Wahbungabinoonjilag program and in that regard she is not aware of the mother having completed any additional program modules since June 2012. She has also not been made aware by the mother of any intention to do so in the future. That same lack of plans can be said on the issue of grief, grief counselling and the sexual abuse. [ 88 ] In January 2013, Ms.

Smith spoke directly with the mother about attending family therapy sessions with the children. Ms. M refused to do so and advised Ms. Smith that she would be seeking the necessary services from the community therapist in [indian reserve omitted]. [ 89 ] In terms of the father, Ms. Smith is not aware of any progress made by the father nor is she aware of any programming that he may have completed since June 2012. [ 90 ] As for the living arrangements, Ms. Sumner believes that Ms.

M. has been back in the family home since the spring of 2013 with three of their adult children also living in that home. [ 91 ] As for the father, Ms. Smith was recently told by G.F. that her sister told her that she and Mr. M. are still living together in the family home. In that regard, Ms. Smith is aware that Mr. M. works for the band driving a water truck and a couple of months ago she did see that vehicle parked at the family home. Given this latest information received she does not believe the parents claim that they have been separated for any significant time period.

During those times when the couple may have separated because of the alleged domestic violence, Ms. Smith is not surprised that the mother continually allows the father back into the family home. [ 92 ] The agency plan is to leave the children in their current foster homes as they believe each of the homes has been positive for the children. With respect to Ms. M., the agency expects her to seek counselling for the domestic violence, grief counselling and to complete a parenting course. It is Ms.

Smith’s position that the children have been missing the necessary guidance from the parents that hopefully can be learnt from such a course. [ 93 ] The agency continues to have protection concerns for the four children and has had interactions with the parents where they have emphasized the need to keep the children away from the sibling who has now been charged and arrested for sexually assaulting them.

Despite those concerns being raised directly with the parents, the agency is aware that on a subsequent family visit that was held in Winnipeg, the parents allowed the alleged offender to attend that visit. [ 94 ] It is the view of Ms. Smith that the mother cannot meet the needs of the children until she addresses her own long standing issues. Although it was in 2011 that Ms. M began the process of talking about the issues, she has yet to seek any professional help despite having been previously encouraged to do so. [ 95 ] It is Ms.

Smith’s opinion that a permanent order is in the best interests of each of the children. Her opinion is based on the fact that there has been essentially no progress shown by either of the parents. [ 96 ] In order for the kids to thrive, it is her opinion that they need to be in a healthy environment with love, support, nurturing and guidance. All of the children still remain in need of protection and as of this date the mother is not a viable option to parent given her non-cooperation with the agency.

She has chosen not to accept what is being suggested to her by way of treatment and therefore appears not to want to do anything to better her life and the lives of her children. [ 97 ] Ms. Smith was cross-examined extensively by all counsel. She acknowledged that she did have contact with the family prior to the apprehension of all four children.

Initially that contact centred on T.L. and T.G. and it was not until November 3, 2011 that she had her first contact with B. and L. when she brought them to the office to be interviewed by an abuse worker. [ 98 ] All four children were subsequently interviewed as information had come to the agencies attention from a third party advising that an older sibling had admitted to sexually assaulting his younger siblings.

In addition, T.G. had also disclosed that she had been sexually assaulted by her father. [ 99 ] These matters were reported to the RCMP and based on the investigation that was undertaken; charges of sexual assault were subsequently laid against one of the older siblings. With respect to the second allegation that had been made by T.G., Ms. Smith was not aware if any charges were ever authorized by the RCMP.

[ 100 ] Once the matters are forwarded to police, Ms. Smith indicated it is then up to them to decide what is to happen. Ms. Smith was clear that her only concern during this period of time is with the protection of the children. [ 101 ] Ms. Smith did explain what the process is when a disclosure is received. Essentially her responsibility is to refer the matter to the Southeast CFS abuse committee and they then review the information. Sitting amongst the agency staff on this committee are two police officers who appear to have a say on how the matter will be dealt with.

The only recommendation that she was aware of that came from the committee occurred on December 21, 2011 when she was asked to re-interview the children. [ 102 ] Around the time the initial disclosure was made to Ms Smith, Ms. M. had returned back into the community. On her return she initially returned to the family home but was asked to leave by her husband. She did so to avoid any arguing from occurring and when doing so, left the children in the care of Mr. M. who remained in the family home. [ 103 ] It was after this contact with Ms. M. that Ms.

Smith spoke with her supervisor about her interactions with this family. Based on those discussions the agency decided that it was no longer safe to leave any of the children in the home and the decision was made to apprehend them. In this regard Ms. Smith agreed with the suggestion that up to this point in time there have been no allegations made that Ms. M. had abused any of the children. [ 104 ] On November 29, 2011 Ms.

Smith confirmed she attended to the family home to follow up on a previous arrangement where both parents agreed to vacate the residence and allow one of the older adult siblings to come into the home and provide day to day care for the three children. [ 105 ] In this regard, the decision to place the children under apprehension status had previously been made and that decision had been related to the adult sibling. The purpose in Ms. Smith visiting the family home on this date was to see if anything was needed in order to provide the necessary care to the children.

This arrangement continued until March 2012 at which point in time all of the children were removed from the home and moved into the various foster homes where they continue to reside today. [ 106 ] Ms. Smith acknowledged that the older two children had left their placement in late 2012 and returned back to the family home. [ 107 ] The PCA report the agency is relying upon was done in June 2012 and when asked, Ms. Smith did not believe it was necessary to have an updated report done as a result of the children having gone AWOL. [ 108 ] When asked, Ms.

Smith confirmed that she did not discuss the event of the girls leaving the foster home with Mr. Bullard. She did however agree that the actions of the girls choosing to return home was a dramatic event and the agency had a number of internal discussions about this development. [ 109 ] Despite the issues presented by the actions of the two girls, the agency felt that the two younger children were continuing to do fine in their placements. She did agree that B. does present as a very unhappy boy and he does not have any friends. It was suggested to Ms.

Smith that when B. was living with his parents he did have friends, a suggestion that she did not accept. She related prior observations of seeing him out alone in the community or in the presence of his little nephew. She went on to say that if he did in fact have prior friendships those would still be available to him today as he still lives close to his former residence and still attends the same school he did prior to the apprehension. Ms. Smith did agree that friends are an important part of life for B.

It is her understanding, from the foster parents, that B. has been able to make some friends but because of his behavioural issues he does not see them as often as one would hope. [ 110 ] Mr. Mayer suggested to Ms Smith that her supervisor, Ms. Lena Bouchie, had told Ms. M. that it was okay for her to leave the children with Mr. M. and that they would not be apprehended. She said she had no knowledge of that occurring. Ms. Smith did acknowledge a conversation that she had with Ms. Bouchie during the latter part of 2011 that centred on Ms.

Bouchie’s concerns as to how the children were being affected by all of the domestic violence that was going on in the home. [ 111 ] In terms of follow up, Ms Smith testified that she continues to see the children on a formal basis once per month in the foster home. Since they have been in care counselling has been provided to each of the children. At this time only T.L. continues to attend sessions during the summer months with the other children set to resume again in September with a yet to be determined therapist. [ 112 ] When asked, Ms. Smith acknowledged being aware that Ms.

M. has completed the Bijiinahgo Abinoonjii parenting program Eastern Module dated April 10, 2012; the Women’s Circle Eastern Module that was also completed on April 10, 2012; the Returning to Spirit Workshop that ran from February 4 – 8, 2013; and finally a Food Handler Training Certificate that is noted to be valid until May 16, 2018. She gave credit to Ms. M. for the completion of these programs and agreed that the programs are designed to deal with a lot of the issues that have been identified in the family.

That being said, in re-examination she was asked whether the completion of those programs warranted the return of the children back into the care of Ms. M., to which she simply responded “no”. [ 113 ] When cross-examined by the court appointed amicus, Ms. Smith opined that T.L. has formed a good parent-child relationship with her current foster mother. All of her identified needs are being satisfied by the foster parent and it was agreed that to the best of her knowledge, T.L. has never made a complaint about her biological family. [ 114 ] Ms.

Smith testified that she has been the main worker for this family since the apprehension of the children. She confirmed that on November 21, 2011 there was an allegation made by T.G. of having been given a message from her dad that she had better return home or he would go and get her, bring her home and whip her. T.G. has continued to maintain that allegation and is the only child who made any allegations pertaining to her father.

It is as a result of the disclosure by T.G., that all of the children were ultimately apprehended and removed from the home. [ 115 ] In re-examination of the witness, counsel for the agency clarified that T.G. was the first to be apprehended and the three other children were apprehended about one week later. Once a disclosure is received, it is referred to the abuse committee and it is her supervisor who has the responsibility to report the allegation to the police.

[ 116 ] With respect to the arrangement for the older sibling to assume care of her younger siblings in the home of the parents, it was agreed that this care giver was not to permit the parents to attend that home unannounced. [ 117 ] When the two older children began to run away for their foster home, the agency never considered the return of the children back into the custody of their parents. [ 118 ] During questioning by the court, Ms. Smith confirmed the three children were living in the family home at the time the agency made a decision to apprehend them.

The actual apprehension of the children occurred prior to Ms. Smith arriving at the home and that decision had been conveyed to the oldest sibling who was to provide day to day care for her siblings in the family home. Ms. Smith did attend to the home later that day with the purpose being to make sure there was food in the home. [ 119 ] Finally as it relates to the completed programs by Ms. M., Ms. Smith did discuss her concerns with Ms. M. and more particularly the concern with their continued lifestyle issues.

Yasin Yasin [ 120 ] Constable Yasin (‘Yasin”) testified that he has been a member of the RCMP for about two years and has served that entire time at the Pine Falls/Powerview detachment. During this time he has responded to calls for service at the home of Mr. and Ms. M. and did prepare notes detailing his observations. [ 121 ] On May 8, 2012 he testified that a call was received by dispatch about one of the adult children in the family home being intoxicated and bleeding from his leg.

On the basis of that call, Yasin attended to the home in the [indian reserve omitted] and made a number of pertinent observations. [ 122 ] Upon entering the home he initially spoke to Mr. M. who advised him that he had been out fishing for the entire day. When he came home he saw that the window in the door had been smashed and that the television in the bedroom of his adult son had also been damaged. [ 123 ] Constable Yasin located the adult son of Mr. M. and noted he was intoxicated and bleeding from a wound to his leg.

This was not the first time that he observed this individual to be intoxicated. [ 124 ] During a conversation with Mr. M., he expressed a feeling of being overwhelmed with providing the care that is required by his son who is permanently confined to a wheelchair. [ 125 ] On May 15, 2012 Constable Yasin again responded to a call for service at the family home. This time he was there to assist Constable Rouse with the arrest of Mr. M. on an allegation that he had assaulted Ms. M. was back on May 2, 2012. On this occasion he did see the adult son of the Mr.

M. back in the home and once again noted that he was intoxicated. Also present in the home was an adult daughter who apparently witnessed what had occurred in the home but declined to provide police with a statement. [ 126 ] On May 17, 2012 Yasin responded with Constable Rouse to the family home. The information available was that this was in relation to a domestic disturbance call of fighting in the residence amongst the adult children. On arrival Yasin noted the son of the parties in his wheel chair and once again intoxicated. Inside the home he could hear yelling and was told by Mr.

M. that three of the adult children were intoxicated and fighting amongst themselves. The yelling the officer had heard on arrival was Mr. M. yelling at his three children. [ 127 ] Yasin suggested to the court that the home is not a safe place for the children given the vast amounts of alcohol and violence that he has been observed. [ 128 ] Later on May 17, 2012 the police generated a second report from the residence as one of the adult children had disclosed she had been sexually assaulted by Mr. M. Constable Yasin waited until the complainant had sobered up before taking a statement.

The alleged incident was said to have occurred in her bedroom when she was five years of age. The allegation made was that Mr. M. touched her vaginal area under her pants and since that incident occurred she has resorted to the use of drugs and alcohol as a coping mechanism. [ 129 ] As a result of this disclosure, Mr. M. was arrested by police. It is this officer’s understanding the matter never did proceed further as the complainant chose not to testify. [ 130 ] On June 1, 2012 the RCMP received a call from Ms. M. concerning her adult daughter having had cut her wrists. On arrival Yasin noted Ms.

M. was intoxicated as was her adult son who ended up being arrested for breaching his court ordered condition not to consume alcohol. Yasin was later able to locate the daughter of Ms. M. and she was detained under the Mental Health Act provisions. [ 131 ] On May 6, 2013, while at the Shell gas station Yasin spoke with Mr. M. who expressed a concern that Ms. M. was contacting him contrary to an order that she was currently bound by.

Although he declined to give a statement he did ask the officer to speak to her and warn her of the consequences if she continues to try and call him. [ 132 ] In total, Yasin testified that he has been to the family home on five or six occasions and on each of those occasions he has noted concerns of alcohol abuse and violence. [ 133 ] It is his belief that both parents are living together in the family home. [ 134 ] In cross-examination Yasin confirmed that on the May 8, 2012 incident Ms. M. was not present in the home. In fact it was confirmed that she was only present on one occasion where he attended.

Brent Woodworth [ 135 ] Constable Brent Woodworth (“Woodworth”) has been with the RCMP for about one year. During this period of time he has had a

number of interactions with the M. family and has been to the family home in a professional capacity. [ 136 ] On May 5, 2013 at 1700 hours, dispatch received a call from Ms. M. reporting that Mr. M. has been driving back and forth by the residence she is staying. The concern is that Mr. M. was bound by a no contact order. [ 137 ] This officer contacted Ms. M. and she advised that Mr. M. has also been calling the home but the phone has been answered by the home owner. She was reminded that her own release conditions also prohibit her from communicating with Mr. M. [ 138 ] On May 8, 2013 this officer spoke with Ms.

M at her residence and again warned her not to communicate with Mr. M. [ 139 ] In cross-examination Constable Woodworth confirmed that he did not charge either parent in any of these instances. During the one time that he has physically seen Ms. M. she was noted to be sober. Darcy Doucetter [ 140 ] Constable Darcy Doucetter (“Doucetter”) has been a member of the RCMP for four years.

He joined the force after spending thirteen years in the Canadian Armed Forces, where he attained the rank of Master Corporal. [ 141 ] On April 2, 2012 dispatch received a call concerning a disturbance occurring at the [indian reserve omitted] residence. On arrival it was clarified that the call was about an older sibling who was being disruptive and combative with Mr. M. At the time of police presence, the male sibling was noted to be passed out and no further police intervention was required. [ 142 ] On April 22, 2013 RCMP dispatch was contacted by Ms. M. indicating she and her husband had been arguing.

She advised that she has now left the family home but wanted police to remove Mr. M. from the family home. RCMP asked the local Band Constable to attend the home to assess the situation and Ms. M. was advised of that so that she would expect someone to attend. [ 143 ] RCMP were later notified by the Band Constable that while he was in attendance at the family home he witnessed Ms. M. punch Mr. M. in the arm. This officer obtained a witness statement from the Band Constable before then attending to the family home for the purpose of arresting Ms. M.

She was not present but this officer later observed her walking on the roadway and arrested her. [ 144 ] A second witness statement was obtained from Mr. M. where he alleged that Ms. M. had struck him with a flashlight that left no visible injuries. The alleged incident is to have occurred in the family residence and the information provided is that they were both living in that residence at that time. [ 145 ] In cross-examination it was confirmed that Doucetter has only arrested Ms. M. on the one occasion for a criminal code offence. Ms.

M. was noted to be sober on arrest and there were no visible injuries noted on Mr. M. This officer indicated there is no file notation updating the status of those criminal charges nor has there been any contact between this office and the crown on the matter. Ithan Bullard [ 146 ] Ithan Bullard (“Bullard”) testified to having a Bachelor of Education, a Masters in Social Work and has completed a portion of his PHD in Social Work at the University of Manitoba.

He is a member in good standing with the Manitoba Institute of Registered Social Workers and is certified by that organization to practice as a social worker. At this time he is also a qualified Clinical Therapist in the area of child protection matters. [ 147 ] Mr. Bullard testified that he has been working in the area of child welfare since about 2005. His most recent position in that field was at the Child and Family Services Agency where he was a service manager. [ 148 ] Counsel waived the necessity of a voir dire and agreed that Mr.

Bullard is an expert witness in clinical therapy in the child protection area. His curriculum vitae was filed detailing his background and qualifications. [ 149 ] Mr. Bullard testified that he has been doing Parental Capacity Assessments (”PCA”) since 2009 and to date has completed close to one hundred in total. The general purpose of an assessment is simply to determine the parent’s capacity to parent. In addition to receiving referrals from various agencies, Bullard advised that he has also received referrals directly from families requesting that he complete an assessment.

In terms of the assessments he has done, some of them have concluded that the children should be returned back into the care of the parents. [ 150 ] With respect to the case at bar, Mr. Bullard advised the court he received the referral from Southeast CFS and was asked to consider both the parents suitability to care for the children and also to make recommendations to the court. He had no prior dealings with this family nor was he made aware of the agency’s position to seek a permanent order of guardianship on the four children at the time he undertook the assessment. During an interview with Ms.

Smith, he was made aware that the children had been apprehended because of ongoing stress in the home, a disclosure of physical abuse, information that the children had been witnessing domestic violence and that there was no appropriate care provider in the home. [ 151 ] In terms of the process, Bullard advised that he either met with or spoke to the biological mother on seven occasions during the assessment period which he estimated involved about fifteen hours of meeting time.

The purpose of those sessions was to obtain some background information as well as some family history. [ 152 ] In addition to the individual contact with the mother, he also met with each child individually for about thirty minutes. Finally he also attended a family visit held in a Winnipeg hotel which provided him the opportunity to watch the interaction within the family unit and that visit was about three hours in duration. [ 153 ] As a way of familiarizing himself, Bullard also spent time reviewing various documents and records, all of which are detailed in

his report. [ 154 ] At the outset of his examination, Bullard was asked about the Certificate of Award for completing the Eastern parenting Program Module dated April 10, 2012 and the Certificate of Award for completing the Women’s Circle Eastern Module dated April 10, 2012, both of which were awarded to the mother. He advised the court that he was aware of those programs having been completed but they did not affect his overall recommendations made to the court. It is his understanding that Ms. M did not complete all of the modules for that program and to do so would take upwards to a year or more.

In his professional opinion the modules that she did complete did not address most of the underlying issues that had presented themselves during the assessment. [ 155 ] In addition to those documents, Bullard also testified to reviewing the report cards for each of the four children. With respect to the report card of T.G., dated June 26, 2012, he noted a concerning attendance record during the first semester but further on in the report there is a notation that her attendance did improve and that she was doing fine in the classroom.

The school suggested that T.G. would do well with continued encouragement and guidance. [ 156 ] With respect to B., his report card identifies many difficulties he was experiencing in the school setting as of November 2011. Comments dated March 2012 indicate that his behaviour did improve somewhat with following some of the rules as did his academic performance. [ 157 ] During the course of the background meetings with Ms. M., Bullard was advised that CFS became involved with her family back in 1994 upon the birth of her seventh child, who is not the subject of these proceedings.

At that time she reached out to CFS as she had grown tired of Mr. M’s verbal abuse towards her. She and the children were placed in a shelter where they remained for about seven days before they returned back home. [ 158 ] During the pregnancy period with T.L. in 1998, Ms. M advised that her husband, Mr. M., began to physically abuse her by hitting her with furniture. [ 159 ] The issues between the parents did not end and CFS became re-involved with the family after the birth of the ninth child, T.G. in 1999. According to Ms.

M., the involvement of CFS came as a result of her husband becoming jealous and accusing her of sleeping around. She and the children were subsequently placed in a Brandon safe house where they remained for about ten days before they returned back to the home community. [ 160 ] The involvement of CFS continued in 2000 when one of the now adult children had threatened to kill herself. As a result of those issues, the child was admitted into a psychiatric hospital and remained under agency apprehension for about four months before being returned back home. [ 161 ] Ms.

M. became pregnant with B. in 2002 and although there was no CFS involvement, she advised that the verbal abuse by her husband had continued. [ 162 ] In January of 2011 Ms. M. indicated that the couple began to separate and outlined the reasons which included the prior physical and verbal abuse that she had reported. In a follow-up interview she disclosed an incident that occurred on May 2, 2012 where she alleged being physically assaulted by her husband. The details of the incident involved the couple consuming alcohol in the family home during which time Mr.

M. apparently attacked her by choking and repeatedly punching her in the shoulder and back area. [ 163 ] That incident had been preceded by an October 31, 2011 argument in the home where Ms. M. had agreed with the suggestion of Mr. M. that she leave the family home. The basis of the argument was that she appeared to be staying in Winnipeg more frequently and when she did agree to leave, she left Mr. M. with the care of the children. [ 164 ] At the time of the assessment, Mr. Bullard was of the opinion that both parents were stuck in the cycle of violence.

It is his view that the parents should not be in the same home until the outstanding issues set out in the recommendations

section are addressed. [ 165 ] During an interview of T.L., she stated that she does not have a good relationship with her mother and went on to say that she does not show her any love. Conversely she did felt that she does have a good relationship with her father as he shows her love by buying her things.

That being said, it was her stated desire not to reside with either of the parents and she would like to remain in her current foster placement. [ 166 ] T.G. expressed some anger towards her father and stated that they do not have a good relationship as “he does not show her any love and disciplines her by spanking her with a wooden spoon.” She expressed no fear of her mother and indicated she would like to live with her. Mr. Bullard suggested that even though she may have a good relationship with her mother, it is the dynamics in the home that are not appropriate.

Those dynamics include instances of abuse between the parents as well as the sexual abuse allegations against the father. It is for those reasons he has and continues to recommend a permanent order be granted for all of the children. In his opinion, T.G. presented with avoidance insecurity attachment and was seen to have little interest in interacting with her mother during the visit. [ 167 ] The fact that the mother described her relationship with L. as close also did not affect Mr. Bullard’s recommendation of the permanent order.

In his view, it is not surprising that within a large sibling group scenario a parent would give most of their attention to the youngest. [ 168 ] Mr. Bullard identified that this assessment was complicated by the different layers that affect the children. Those layers had to be peeled off in order to get to the issues. Treatment for the children is a must, be it individual or group therapy. [ 169 ] During the course of the hotel visit, Bullard observed there was very limited interaction between the mother and T.G. such that any conversation between them involved simple one word replies.

In the pool area, there were situations that arose with the children that Bullard believed required parental supervision but that did not occur as the mother appeared to be preoccupied with her phone. It was also noted that she did not attempt to engage the children in any activity at the poolside and at times did not immediately acknowledge the children when they called out to her.

[ 170 ] It was Mr. Bullard’s intention to attend a second family visit that was scheduled however the mother cancelled that visit a day prior to it occurring and it was never rescheduled. He was asked about this and determined that his attendance at a subsequent visit was not required as the information he had already collected told him the children were in need of protection. [ 171 ] As a part of his information gathering, Mr. Bullard attended to the family home where he met and interviewed some of the adult children who were residing in the family home.

Each of these interviews were conducted in the absence of the parents and that was done so intentionally to encourage a more open discussion. [ 172 ] Bullard testified that he spent the better part of a day at the family home and his attendance was previously known to the family. He described the home as being a six bedroom home with two the bedrooms not being used. Those two bedrooms had a mattress on the floor and clothing spread throughout the rooms.

He noted the home had a number of broken windows which raised concerns of exposure to the elements as well as general safety issues for the children. [ 173 ] Outside of the residence there were multiple empty beer cases seen under the wheelchair ramp that Bullard took to as an indicator alcohol was being consumed on the property. Mr. Bullard openly wondered why the parents would not have cleaned up those cases knowing that he was coming to the home on this day. [ 174 ] Mr.

Bullard did speak with some of the older siblings including the oldest adult daughter who at one time was permitted to be the day to day care provider for her younger siblings when they were initially apprehended. During this interview she expressed remorse that they were later removed from her care by Southeast CFS as were her own two children. [ 175 ] When speaking about her parents she indicated that they both continue to use alcohol in the community.

When speaking about her youth years, she described her father as punching and throwing her around and stated that he was always verbally abusive to her siblings and mother. She confided to attempting suicide on two occasions as a youth which Bullard suggested were cries for help by her. Unfortunately, he indicated, there was no support system in the home when those cries for help occurred. [ 176 ] As for her mother, she indicated that she did not have a good relationship with her as she just up and left the family.

She expressed safety concerns for the younger siblings if they are to be placed back into the care of their mother. [ 177 ] Mr. Bullard also spoke with the oldest son who admitted to smoking marihuana and drinking in the home, although he did not state with what frequency that was occurring. [ 178 ] A second adult daughter was also interviewed and recounted witnessing frequent incidents of family violence in the home.

She also expressed concern for the younger children’s safety if they were to be left in the care of her father. [ 179 ] In March 2012 she disclosed past sexual abuse by her father and since then has been smoking marihuana on a daily basis and drinking alcohol three times a week in order to cope. [ 180 ] A third child, a son who is confined to a wheelchair, indicated that he smokes marihuana and consumes alcohol on a daily basis as means to cope with his injury. When asked about his parents he did recall instances of seeing his parents fighting as he grew but would not expand on that any further.

He expressed the view that he did not want to judge his parents as they all make mistakes. With that he did indicate that he is dependent on his siblings for assistance as they are often the only ones in the home. [ 181 ] Mr. Bullard’s overall impression of the home is that it is habitable for the adults but it is not so for the kids. He based that on the physical state of the home as well on those who are living in that home.

It is his view that it is not a safe home given the domestic violence between the parents, the alleged sexual abuse that has been disclosed by two of the daughters and the lack of structure by the parents which provided an opportunity for deviant behavior to occur. [ 182 ] Mr. Bullard also interviewed Mr. M. who described his parenting style as allowing the children to essentially engage in or do whatever they chose to. This, Mr. Bullard surmised, was a parenting style that did not have any limits or boundaries to it. In terms of discipline, Mr.

M. advised that he would send the children to their room and at no time admitted to physically hitting the children. That was contrary to the abuse disclosures Bullard was aware of but he chose not to confront Mr. M. with that information as he did not want to pre-empt any potential investigations that may ensue from those disclosures. [ 183 ] In terms of his relationship with his wife, Mr. M. advised they separated in January 2011 after she began to travel to Winnipeg for extended periods of time. During the interview Mr.

M. suggested the reason she was going to Winnipeg was because there were lots of drugs and alcohol in the city. Mr. Bullard noted that this was consistent with the information he had received from the children about her alcohol use and he believed that there was some truth to it. [ 184 ] That being said, Mr. Bullard was also aware that Mr. M. had been charged with assaulting Ms. M. and there was a restraining order in place prohibiting contact between the parties. [ 185 ] In a separate interview with Ms. M. she did admit to Mr.

Bullard that she consumes twelve beers approximately once a month as well as one gram of marihuana on a daily basis. That is in addition to the one pack of cigarettes she smokes on a daily basis. [ 186 ] A second interview with Mr. M. was attempted but never did occur. Mr. Bullard advised the court that he called Mr. M.’s community contacts on five occasions and each time left a message for him to call. In addition, Bullard attended into the community in an attempt to locate Mr. M. but was unsuccessful in locating him on that visit. It was noted by Bullard that those unanswered calls by Mr.

M. occurred after the disclosures by the girls had become known. [ 187 ] The plan articulated by Ms M. during the preparation of the PCA was that should she get custody of the children, it was her intention to move them to Winnipeg and not allow Mr. M any access to them. She was not able to provide any further details as to what school or extracurricular activities the children would attend or be involved with in Winnipeg.

[ 188 ] In terms of an overall assessment, Mr. Bullard suggested that the family home lacked structure, stability, security and supervision. He further suggested that because of the lack of supervision, the lack of boundaries and the lack of parenting skills, that permitted opportunities for the incest to occur. [ 189 ] The eldest daughter attempting suicide on two occasions as well as the one son, who is no longer in the home, expressing a desire to hang himself all have a common thread in that they were in the home.

They were parented by the same parents and lived with no structure, no stability and no boundaries. Essentially Mr. Bullard suggested that a free for all was occurring in the family home. [ 190 ] The lack of structure or boundaries, generally, created opportunities for things to happen such as underage sex, underage alcohol consumption and the like. The one son who has admitted to sexually assaulting his younger sibling outlined the incidents occurred during the times he was left to babysit his siblings. These incidents, Mr. Bullard suggests, occurred because of a lack of supervision by the parents. [ 191 ] In

summary Mr Bullard noted that this family has had an extensive history with CFS that dated back for a prolonged period of time. With the disclosure of physical abuse, parental neglect, verbal abuse and domestic violence between the parents, all of which came from the interviews with the children, as well as the case information provided by Ms. Smith, Mr.

Bullard testified that in his professional opinion the children were in need of protection at the time of the apprehension. [ 192 ] Based on the interviews he has undertaken with the foster parents it appears to him that the children are healthy and adjusting well to their current living situations. They now appear to have routines, have addressed and improved their attendance in school and generally appear to be progressing well in school. [ 193 ] Mr. Bullard identified four or five significant events that have occurred with this family that he felt could have been overwhelming and difficult to overcome.

He suggested that it is evident to him that the family has a limited knowledge of the resources and felt they were either not being proactive in looking for help or perhaps the resources are not available in the community. [ 194 ] He indicated that Ms. M. experienced the death of her mother, the separation from her husband, the disclosure of sexual abuse from the children and the shooting of her son that has left him wheelchair bound. This is a pattern of ongoing stress that would have been building on the family unit.

The smacking of T.L. with the spoon was essentially the breaking point for what was hidden below the surface. That being incest, sexual abuse, domestic violence, a lack of boundaries, a lack of supervision, alcohol abuse, drug abuse and the need for grieving. [ 195 ] In his view Ms. M appears to be in denial with respect to the sequence of tragedies that has occurred. This is in the face of the disclosures that have been made as well as the presence of deviant behaviour amongst the children.

The stress level for her would have increased with the death of her mother and the tragic circumstances of her son who is now confined to a wheelchair. Her actions of moving back and forth in the relationship with her husband shows that she is either not taking the abuse serious enough or perhaps she is in a state of denial, which would be a part of the cycle of domestic violence. [ 196 ] It does not appear to Mr. Bullard that Ms M. has acknowledged the seriousness of the events that have occurred.

This is in addition to the fact that the parents have not accepted or taken responsibility for what has happened to this family unit. With Ms. M. being in a state of denial, it is Bullard’s opinion that she cannot take the first step in the healing process. [ 197 ] As for the father, it is the opinion of Mr. Bullard that he has a limited interest in the children. With the disclosures that have been made, he suggested that an individual would want to know what is being said and that has not occurred with the father. [ 198 ] In terms of visits, Mr. Bullard surmised that it would be reasonable for Mr.

M. to do whatever was required in order to visit with the children. That, he suggests, has not occurred and in fact it appears the father has only made limited efforts to meet the needs of the children or to be proactive in visiting with the children. [ 199 ] Mr. Bullard believes that Mr. M. takes no responsibility in that there have now been two adult children who have disclosed being sexually abused and the younger children had essentially been running wild prior to the agency intervention. Mr. Bullard suggested that at some point Mr.

M. must acknowledge that his parenting style needs to change and he needs to establish some rules. [ 200 ] Neither parent appears to take responsibility for their roles as parents. They are the ones responsible for having structure in the home as well as providing supervision of the children. If there are issues in the home the parents have to step up and take some responsibility. It is imperative that they acknowledge their mistakes and in the opinion of Mr. Bullard neither parent has done so and they cannot therefore take the first step in rehabilitation. [ 201 ] At this point in time Mr.

Bullard believes that neither of the parents is in a position to meet the needs of the children. Being in a state of denial prevents Ms. M. from clearing her own thinking so that she can identify what the needs are for the children. By returning the children and doing nothing, they are essentially being put right back into the same situation that originally necessitated their apprehension. [ 202 ] The issues the parents face are not, in Mr. Bullard’s opinion, those that they can deal with their own.

They require outside assistance and they require professional intervention. [ 203 ] During the observation period of Ms. M. at the visit, she presented as being more focussed on the two younger children. In general, she was not attentive to the needs of the children and demonstrated a parenting style that had limited supervision and limited boundaries, which was no more evident when one child was observed trying to pull another child’s swimsuit down and was not addressed by Ms. M. as being inappropriate. This relaxed parenting style was noted by Mr.

Bullard to encourage dysfunction and permits mischief such as incest, abuse amongst the siblings, drug and alcohol abuse and domestic violence to occur. [ 204 ] If the children were returned back into the home with nothing changed, the children would be open to the opportunity of some type of dysfunction occurring. Even if Ms. M. were to have her own residence it was his testimony that she would not be able to meet the

needs of the children and the children would be open to the potential for dysfunction. [ 205 ] In the opinion of Mr. Bullard there was a level of neglect that became apparent through the interviews conducted. The impact of the CFS intervention has seen that the children have adjusted fairly well to their current living arrangements where there is structure and routine, which includes curfews and the like. [ 206 ] It is clear to Mr.

Bullard that the children have all experienced some degree of trauma, be it sexually assaulted, witnessing physical abuse, the lack of grieving and experiencing the separation from their parents. Those issues must be a part of any treatment plan that is created. [ 207 ] The ability to maintain a stable and structured living environment is an absolute necessity given the disclosures that have been made. The children cannot be shifted about as they need a solid basis from which to start their healing and the current foster homes give them that opportunity. At this point in time Mr.

Bullard did not see any attachment issues evident with the parents and nothing to suggest the children have been negatively impacted by their separation from the parents. [ 208 ] When asked about the mother specifically, Mr. Bullard was clear that if there has not been any professional intervention, he did not feel she could provide a stable and structured environment for the children. He suggested there would be opportunities for abuse and neglect and Ms.

M. would not be able to protect the children. [ 209 ] When asked to identify the functioning level of the family, Bullard described it as a family systems approach to parenting where they rely on the immediate or extended family to assist with parenting. In this case it was often the older children who were assisting the parents. The difficulty with this approach is that if there are no boundaries or structures already in place then there is risk for the younger children. [ 210 ] That was the case with the older sibling who has admitted to sexually assaulting his younger siblings as well as a cousin.

He had learnt behaviour, from whoever it was that sexually abused him, and that led to his offending behaviour. He had no boundaries set out for him by his parents such as whether he could spank a sibling or if he could touch them in any manner. [ 211 ] Mr. Bullard emphasized that these issues have to be dealt with rather than just swept under the carpet as it appears the parents wish to do.

The evidence showed him that based on a series of events that occurred, the family unit was in state of crisis. [ 212 ] The children were crying out for help in one way or another, be it through the suicide attempts, sexually abusing their siblings, not going to school or abusing alcohol and drugs. The information gathered showed him there was a lack of structure in the home which permitted opportunities for bad things to happen.

The family did not have a support system set up and at the end of the day the spanking is what uncovered all of the issues that had been hidden up until that point in time. [ 213 ] When looking at their history, it appeared to Mr. Bullard that the parents attempted to minimize

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