Nova Scotia (Community Services) Applicant v. LC, JR Respondents Library Heading Judge: The Honourable Justice Pamela Marche, 2023 NSSC 14

Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: Nova Scotia (Community Services) v. LC, JR , 2023 NSSC 14 Date: 2023-01-12 Docket: 122609 Registry: Sydney Between: Nova Scotia (Community Services) Applicant v. LC, JR Respondents Library Heading Judge: The Honourable Justice Pamela Marche Heard: December 20, 2022 in Sydney, Nova Scotia Final Written Submissions: January 6, 2023 Written Decision: January 12, 2023

Summary: At the conclusion of the statutory time limit for this child protection proceeding, the Minister argued the child remained at substantial risk of harm because LC and JR did not engage in services or programs sufficient to reduce protection concerns related to substance abuse, violence, criminality, and inadequate parenting. An order was sought placing the child in the permanent care and custody of the Minister. JR did not contest the Minister’s position. LC argued the child should be returned to her care.

The Court assessed the evidence related to LC’s current circumstances and found that while LC had made positive efforts in terms of her relatively recent engagement with a community advocacy group for drug users, much of LC’s plan to maintain sobriety, and related stability, had yet to be implemented. The Court lacked jurisdiction to extend the statutory deadline, as requested by LC, to allow LC more time to fully realize her plan. The child remained in need of protective services at the time of the permanent care hearing. Issues:

(1) Does the child remain in need of protective services and, if so is, it in the best interest of the child to be placed in the permanent care and custody of the Minister? Result: Permanent Care and Custody Order granted. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Nova Scotia (Community Services) v. LC, JR , 2023 NSSC 14

Date: 2023-01-12 Docket: 122609 Registry: Sydney Between: Nova Scotia (Community Services) Applicant v. LC, JR Respondents Judge: The Honourable Justice Pamela Marche Heard: December 20, 2022, in Sydney, Nova Scotia Written Release: January 12, 2023 Counsel: Adam Neal for the Applicant LC, Self-Represented JR, Self-Represented – Did not participate By the Court: Overview: [ 1 ] IR was born in July 2021 and was taken into the temporary care of the Minister upon birth, where she has remained throughout the course of this proceeding.

LC is IR’s mother and JR is IR’s father. [ 2 ] The Minister claims IR remains in need of protective services because her parents have not completed services or programs sufficient to address serious substance abuse issues which have resulted in criminal charges, incidents of violence and inadequate parenting skills. The Minister argues it is in IR’s best interest to be placed in the permanent care of the Minister. [ 3 ] JR did not put forth a plan for IR’s care and did not participate in the permanent care hearing.

LC argues that she has sufficiently addressed protection concerns and IR should be returned to her care. [ 4 ] The statutory time limit to conclude this matter was January 7, 2023. Issue 1. Does IR remain a child in need of protective services? If so, is it in IR’s best interest to be placed in the permanent care and custody of the Minister?

Procedural Background [ 5 ] The Minister made application for a finding that IR was a child in need of protective services pursuant to s. 22(2)(b) (risk of physical harm) and s.22(2)(g) (risk of emotional harm) of the Nova Scotia Children and Family Services Act , SNS 1990, c. 5 (the Act ). A protection finding was made under s. 22(2) (

b) on October 12, 2021, with the consent of both Respondents, each represented by counsel at that time. The first disposition order was granted January 7, 2022, again with the consent of both Respondents. [ 6 ] There were early discussions of a possible family placement for IR, but no such plan was brought forward for consideration by the court. The Minister indicated an intention to seek an order for permanent care and custody of IR in the Plan of Care filed in July 2022. [ 7 ] Both Respondents stopped participating in the court process after first disposition.

Counsel for each Respondent eventually made successful motion to be removed as solicitor of record. LC first re-engaged in the proceeding when she appeared for the permanent care hearing scheduled for December 1, 2022, to contest the permanent care order be granted. The hearing was adjourned to December 20, 2022, to allow LC an opportunity to get legal advice and prepare. [ 8 ] The Minister called one witness, social worker McKay, and entered business records from November 4, 2022. The Minister further

relied on the following affidavit evidence from child protection workers: • E. Walsh – July 15, 2021 • D. Kalbhen – October 8, 2021 • D. Kalbhen – January 6, 2022 • M. MacKay – April 1, 2022 • M. MacKay – May 12, 2022 • M. MacKay – November 1, 2022 [ 9 ] LC represented herself at the hearing. She did not file affidavit evidence as directed but was given the opportunity to give viva voce evidence and declined to do so. LC called one witness, Ms. A. Graham, a Community Support Worker for the agency CAPED (Cape Breton Association of People Empowering Drug Users).

CAPED is a community-based advocacy group whose mission is to challenge stigma and discrimination against people who use drugs. [ 10 ] The Minister and LC were invited to file written submissions. Instead, LC filed an affidavit, sworn January 10, 2023. I cannot consider the content of this affidavit as evidence. I will consider the affidavit content as LC’s written submissions only to the extent that the content is supported by evidence otherwise adduced at the hearing.

Because LC is self-representing, I offer a basic explanation with examples. [ 11 ] A premise of our legal system is that reliability of evidence may be tested through the process of cross examination. Courts should only make decisions based on evidence that is reliable. Therefore, claims or assertions not subject to cross examination during a hearing, can not later be offered as evidence in written submissions. For example, LC claims, in her above-referenced affidavit, that she underwent a mental health and addictions assessment.

I can not consider this claim as evidence because the claim was not subjected to the test of cross examination. Similarly, the Minister argues that LC does not have stable housing and is currently residing with her mother and sister, both of whom have history of child welfare and substance abuse issues. I can not consider the claim that LC’s mother and sister have a history of child welfare and substance abuse issues because no evidence to support this claim was offered at hearing.

Position of the Parties Position of the Minister • The Minister claims drug use, inadequate parenting, violence, and criminality associated with both LC and JR place IR at significant risk of harm. The Minister further argues that LC and JR’s lack of engagement with services to reduce protection concerns has resulted in the risk of harm to IR remaining significant such that an order placing IR in the permanent care of the Minister is in IR’s best interest.

Position of the Minister – JR • The Minister argues JR has not engaged in services to reduce risk and has had no contact with child protection workers since November 2021. JR’s access to IR was suspended and his current whereabouts are unknown. • The Minister claims JR continues to be involved in criminal activity and notes multiple outstanding warrants for JR’s arrest on charges related to drugs and violence. JR is under a condition to have no contact with LC due to an incident of violence between them that occurred in November 2021.

Position of Minister - LC • The Minister references LC’s history of substance abuse which resulted in prior child protection involvement regarding her two older children. The Minister notes LC’s contact with these children, who are in the care of their biological father, remains supervised. • In terms of LC’s current child protection involvement, the Minister cites confirmation of LC’s substance abuse through positive urinalysis test results and admissions from LC to child protection workers. • The Minister characterizes LC’s participation in services to reduce risk as brief periods of limited engagement.

Specifically, the Minister is concerned that LC did not engage in a mental health and addictions assessment as requested. • The Minister acknowledges that LC has recently begun working with a community outreach worker on her addiction issues. The Minister argues, however, that LC did not demonstrate that she has completed, or has even been significantly involved with, services that would serve to reduce the risk associated with her substance abuse.

The Minister says LC’s efforts has resulted only in a speculative plan of how she might move forward in achieving and maintaining her sobriety. • The Minister claims that LC did not present a plan of care for IR to demonstrate that IR would not be at risk if returned to her care. • The Minister notes the statutory time limit for concluding this child protection proceeding was January 7, 2023, and the Court must now make a final order. The Minister argues an order placing IR in the permanent care and custody of the Minister is in IR’s best interest given IR remains a child in need of protective services.

Position of LC • LC disagrees that IR remains a child in need of protective services. LC believes it is in IR’s best interest to be returned to her care

and doing so will not place IR at significant risk of harm. • LC argues she has been making positive progress with small steps over the last several months: o she has enrolled in GED preparation classes with the Adult Learning Association of Cape Breton County; o she has completed an assessment with Mental Health and Addictions and is waiting on an appointment so that she can successfully go forward with her sobriety and continue working on her inner self; o she has been engaged with a community outreach worker for several months to gain confidence and support so that she can get her life back. • Although LC did not clearly articulate this, I believe, based on LC’s cross examination, that part of her argument is that the Minister can not prove she is currently abusing substances because there has been no recent testing for drug or alcohol use. • LC claims she has refrained from being in contact with JR for the last six months. • LC argues that she has developed a special bond with IR since the day IR was born.

LC says she has been consistent in visiting with IR and she is willing to do whatever it takes to become the mother that IR deserves. Position of JR • JR did not put forth a position. Applicable Law [ 12 ] The Minister seeks a permanent care and custody order pursuant to s. 42 of the Act . The Minister must prove its case on a balance of probabilities by providing the Court with clear and convincing evidence that IR remains at substantial risk of harm and that it is in IR’s best interest to be placed in the permanent care and custody of the Minister. (Nova Scotia (Community Services) v.

C.K.Z. , 2016 NSCA 61 ). [ 13 ] Decisions about permanent care must be made keeping in mind the legislative purpose stated in s. 2(1) of the Act : to promote the integrity of the family, to protect children from harm and to ensure the best interests of the children. The best interest of the child is the paramount consideration ( s. 2(2) and s. 42(1) of the Act ). [ 14 ] The Act must be interpreted according to a child-centered approach. Circumstances that may be relevant to determining a child’s best interests are outlined in s. 3(2) of the Act . This list is a non-exhaustive.

The Court must consider factors unique to the needs of each individual child and how those needs relate to risk of harm ( Nova Scotia (Community Services) v. R.M.N. and M.C ., 2017 NSSC 270 ). [ 15 ] “Substantial risk” is defined in s. 22(1) of the Act . It means a real chance of danger that is apparent on the evidence. The Court must be satisfied that the chance of danger is real, rather than speculative or illusionary, and substantial in that there is a risk of serious harm or a serious risk of harm (C.R. v. Nova Scotia (Community Services) , 2019 NSCA 89 ). [ 16 ] The Minister is relying on past history.

Past parenting history may be relevant as it may signal “the expectation of risk” (D. (S.A.) v. Nova Scotia (Community Services) , 2014 NSCA 77 ). The court is concerned with probabilities, not possibilities. Where past parenting history aids in the determination of future probabilities, it is admissible, germane, and relevant (Nova Scotia (Community Services) v.

L.M. , 2016 NSSC 80 ). [ 17 ] Prior to the Court granting an Order for permanent care and custody, the requirements of s. 42(2) , (3) and (4) of the Act must be met. [ 18 ] Section 42(2) states the Court must not remove children from the care of their parents unless less intrusive alternatives, including services to promote the integrity of the family, have been attempted and have failed, or have been refused by the parent, or would be inadequate to protect the children. The obligation to provide services is not without limit.

The Act obligates the Minister to take “reasonable measures” in this regard (Children’s Aid Society of Shelburne County v. S.L.S. , [2001] N.S.J. No. 138 (NSCA) . [ 19 ] Section 42(3) of the Act states when the Court determines that it is necessary to remove the child from the care of a parent, the Court shall, before making an order of temporary or permanent care, consider whether it is possible to place the child with a relative, neighbour, or other member of the child’s community or extended family.

The onus is on a potential family placement to put before the Court a reasonable plan for the care of the child. “Reasonable” means proposals that are sound, sensible, workable, well-conceived and have a basis in fact (Children’s Aid Society of Halifax v. T.B., [2001] N.S.J. No. 225 (NSCA) . [ 20 ] Section 42(4) of the Act provides that the Court shall not make an order for permanent care and custody unless the Court is satisfied that the circumstances justifying the order are unlikely to change within a reasonably foreseeable time not exceeding the statutory time limits outlined in the Act . [ 21 ]

Section 45 of the Act sets out statutory time limits for child protection proceedings. The timelines outlined in the Act reflect the fact that a child’s sense of time differs from that of an adult and that a prolonged child protection proceeding is not in a child’s best interest (A.M. v.

Nova Scotia (Community Services) , 2014 NSCA 97 ). [ 22 ] Once the statutory time limit has expired, as it has in this case, the Court has only two possible options: (1) dismiss the child protection proceeding and return the child to the parent or guardian’s care or (2) place the child in the permanent care and custody of the Minister. The matter can not be dismissed if the child remains in need of protective services. The court has no jurisdiction to make any other order once the time limit has expired (G.S. v. Nova Scotia (Minister of Community Services) , 2006 NSCA 4 ).

Findings and Decision [ 23 ] JR did not put forward a plan of care for IR and did not contest the permanent care finding. The unrefuted evidence offered by the Minister substantiates my finding that JR has significant substance abuse issues and is facing a multitude of criminal charges related to drugs and violence. JR has not made any effort to maintain a relationship with IR.

I find that JR has not participated in any service or program sufficient to reduce protection concerns. [ 24 ] In terms of LC’s situation, I am prepared to make the following findings based on the unchallenged affidavit evidence filed by the Minister: • LC has a history of substance abuse issues that resulted in prior child protection intervention. LC’s two older children are in the care of their father and LC’s parenting time with these children remains supervised. • Both LC and JR were arrested on July 1, 2021. LC was heavily pregnant at the time.

Both were charged with drug trafficking. • IR was taken into care upon birth. The decision to take IR into temporary care was based on LC’s previous involvement with child protection and the unwillingness of LC or JR to engage in voluntary services during LC’s pregnancy. • At that time of IR’s taking into care, LC admitted to child protection workers to using cocaine during her pregnancy. • In September 2021, LC admitted to child protection workers to substance abuse, after being confronted with urinalysis tests positive for alcohol and cocaine consumption. LC disclosed that she used cocaine regularly.

She described herself as a heavy user of cocaine, using until she ran out and selling to supply her habit. LC also admitted to drinking heavily. LC acknowledged that substance abuse was having a negative influence on her life. • In November 2021, there was a serious incident of violence between JR and LC. JR was a passenger in a car being driven by LC. The car was observed swerving over the road and police were called. Police observed JR pushing LC out of the car and smashing the car windshield. JR was charged with mischief.

LC reported to child protection workers she believed JR was intoxicated during the incident and his outburst resulted from LC telling him he could not visit IR in his condition. • In February 2022, LC told child protection workers she had been using cocaine heavily for several weeks and alcohol continued to be a problem for her as well. • In May 2022, LC again admitted to child protection workers to using, after being confronted once more with urinalysis tests positive for alcohol and cocaine use. • In August 2022, LC acknowledged to child protection workers that she was able to do well for periods of time before going back to doing drugs. • In October 2022, LC was arrested on three breach charges. [ 25 ] Based on the above findings, I accept that LC has a significant history of substance abuse.

Her struggle with cocaine and alcohol misuse has had a negative impact upon her life. I find that criminalization and violence are two tangible difficulties resulting from LC’s substance abuse. I reference the incident of violence between LC and JR in November 2021. Although LC’s criminal record was not offered as evidence, LC made no effort to refute the Minister’s evidence that she was arrested in October 2022, on several charges of breach of court orders. [ 26 ] I find that LC has been able to maintain limited periods of sobriety, but that substance abuse has been an ongoing cyclical challenge for her.

I make this finding based primarily on the evidence adduced in the current child protection proceeding, having been provided with limited evidence in relation to prior child protection proceedings. [ 27 ] I find that LC was using drugs and alcohol for a significant portion of the current child protection proceeding and at least until June of 2022. I find that LC has demonstrated, at times, an openness with child protection workers about her substance abuse which may demonstrate that LC has some insight to her addiction issues.

Despite that, LC challenged, through cross-examination, the allegation that she tested positive for drug or alcohol consumption on more than once occasion. In fact, LC tested positive for cocaine and alcohol multiple times in the summer of 2021 and the spring of 2022. [ 28 ] I find that LC was initially engaged with the Minister. She did complete some of the family support programs recommended. However, I also find that after the first disposition hearing in January 2022, LC’s engagement with child protection worker’s fell off.

LC did not undergo a mental health and addictions assessment when requested by the Minister, despite being referred twice to do so. I accept social worker McKay’s testimony that she found it difficult to contact LC after March 2022. [ 29 ] I find that LC has been consistent in exercising her parenting time with IR. She has had supervised parenting time with IR twice weekly and has garnered positive feedback from one case aide who described LC as being “nurturing.” Social worker McKay acknowledged in her testimony that there were never any concerns with LC’s supervised parenting time with IR.

I accept, without hesitation, LC’s assertion that she has a special bond with IR. I find that LC loves her daughter and I have no doubt that LC would like, as she puts it, “to become the mother that IR deserves”. [ 30 ] The crux of the issue, then, is whether LC, as of the date of the permanent care hearing, has participated in services to the degree necessary to reduce protection concerns so that IR can be safely returned to her care. These protection concerns relate primarily to LC’s sobriety, although risks associated with LC’s substance use exist as well.

LC offers her engagement with CAPED within the last four months as evidence of her changed circumstances. [ 31 ] In my assessment of Ms. Graham’s evidence, I must first agree with the Minister that Ms. Graham is not qualified to offer an

opinion on whether LC is sober. Also, as I have indicated previously, I can not consider LC’s affidavit in my assessment of whether protections concerns related to LC have been reduced. That said, I note there was very little content in LC’s affidavit that was not put forth at hearing through the testimony of Ms. Graham. Finally, it is not incumbent on the Minister to prove, through urinalysis testing, that LC is currently abusing drugs or alcohol. The analysis of risk can not be reduced to simple urine testing.

Even if LC were to show, through testing, that she was sober today, that fact would still only be one part of an analysis of the bigger picture of whether circumstances have changed such that protections concerns have been reduced sufficiently to return IR to LC’s care. [ 32 ] I have carefully considered the evidence of Ms. A. Graham, the Community Advocate from CAPED, who testified on behalf of LC. Ms. Graham described working with LC to develop a plan “to go forward” and “to get on the right track”. Ms. Graham testified that LC came to CAPED on her own initiative which, Ms.

Graham felt, was indicative of LC’ s willingness to be sober. Ms. Graham described LC as being “down in the gutter” but testified that she is working with LC to build a plan so that LC can take the right steps forward. That plan, according to testimony of Ms.

Graham, is as follows: • LC is looking for an apartment and is on the waiting list for housing; • LC is set to begin working towards her Generalized Education Development (GED) diploma at the Nova Scotia Community College in September 2023; • LC building a resume so that she can begin looking for employment; • LC has IR on two separate waitlists for daycare, should IR be returned to LC’s care; • LC is considering the possibility of attending group sessions such as Alcoholic Anonymous and Narcotics Anonymous; • LC is willing to engage in therapy and counselling sessions to address the issues underlying her substance abuse, something that LC had not done in the past. [ 33 ] Ms.

Graham agreed that CAPED does not drug test and relies upon self-reporting of substance use. Ms. Graham acknowledged that she does not definitively know whether LC is currently abusing substances. Ms. Graham felt, however, that LC was doing well with her sobriety given her level of engagement with CAPED. Ms. Graham testified that she believes in LC who she described as having come a long way. [ 34 ] Ms. Graham admitted that LC did not initially disclose involvement in an ongoing child protection matter. Ms.

Graham testified that she only became aware of this fact a week and a half before the permanent care hearing. [ 35 ] Ms. Graham acknowledged that much of the plan being devised by LC was future facing, conditional upon application processes and waiting lists, and that most elements of the plan are not currently in place. [ 36 ] Ms. Graham testified that she was aware of statutory time limits placed upon child protection court proceedings. Ms.

Graham felt that the deadline should be extended to allow LC additional time to make the changes necessary to get her life back on track and have IR returned to her care. [ 37 ] I find that LC has been working for approximately four months with CAPED to improve her circumstances. Although I question how transparent LC has been with Ms. Graham, given LC did not make Ms. Graham aware of the looming permanent care hearing until very late in the process, I accept LC’s work with CAPED is very encouraging.

I commend LC on her efforts. [ 38 ] LC argues that her plan to improve her education, her employability, her housing stability, and her connection to support people in the community will help her in achieving and maintaining sobriety, thereby reducing protection concerns so that IR can be in her care. However, the benefits of the work that LC has done have yet to be fully realized and there are many elements of LC’s plan that have yet to be implemented.

While LC may be considering attending a community support group or individual counselling or therapy to address her substance abuse issues, there is no evidence that she has currently done so. It will take time for LC to implement the changes she wishes to make and to demonstrate that those changes are sustainable and will reduce protections concerns. [ 39 ] Unfortunately, the legal test before me is not whether LC’s plan for future risk reduction is sufficient.

I must be satisfied, at the time of the final review hearing, that IR is no longer a child in need of protective services and can be returned to the care of LC in LC’s current, not potential future, circumstances. I have no authority to extend statutory time limits, as suggested by Ms. Graham, to allow more time for LC to demonstrate, at some point in the future, that risk has been reduced.

A plan to reduce risk, no matter how solid and well-intentioned the plan, does not, in itself, constitute risk reduction. [ 40 ] I find that LC’s engagement with CAPED is insufficient to demonstrate that the necessary changes have been made, within the statutory time limit, to reduce protection concerns. I agree with the Minster that undergoing a mental health and addictions assessment would be a critical component of LC achieving and maintaining sobriety and thus the stability necessary to reduce risk.

I believe this to be particularly true of LC who admitted that she can maintain periods of sobriety only to return to substance use. I agree with Ms. Graham that achieving sobriety and stability is a process that takes time, and that LC needs more time to achieve her goals in this regard. [ 41 ] LC claims, in her written submissions, to have undergone a Mental Health and Addiction assessment and to be waiting on an intake appointment. There was no evidence of this fact adduced at the permanent care hearing.

However, even if I accept that LC has undergone such an assessment, I find that the assessment would have only recently occurred, and LC would not have had the opportunity to deeply participate in any programs or services flowing from such an assessment. It is LC’s meaningful engagement with these programs and services that would serve to reduce protections concerns. [ 42 ] I have no doubt that LC is a loving and caring mother, and that LC is doing the best she can to better herself in her struggle with sobriety.

I regret that there is insufficient time, within the legislative time limits of the Act , for LC to fully implement her plans and demonstrate stability within her sobriety. I sincerely hope that LC continues to move forward with her plan for the future.

[ 43 ] I am satisfied that the Minister did prove that the child IR remains a child in need of protective services. LC has been unable to demonstrate that she is able to provide a stable, secure, and sober home. [ 44 ] No family placements have been put forth for IR’s care. There is no other less intrusive measure, other than permanent care, to protect IR from harm. The statutory time limit in this proceeding has expired. It is in IR’s best interest to be placed in the permanent care and custody of the Minister. Conclusion [ 45 ] The motion by Minister for permanent care is granted.

The Act prohibits an access provision within the Permanent Care Order, but it is understood that the Minister will endeavour to arrange a final visit between IR and LC. Marche, J.