THE MINISTER OF SOCIAL DEVELOPMENT Applicant v. D.O. and C.J., 2023 NBKB 3

2023 NBKB 003 COURT FILE: FDSJ 333-2020 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF SAINT JOHN BETWEEN: THE MINISTER OF SOCIAL DEVELOPMENT Applicant and D.O. and C.J. Respondents Before: Mister Justice Danys R. X. Delaquis Date of hearing: January 4 and 6, 2023 Date of Decision: January 16, 2023 Appearances: Corry Toole, K.C. - for the Applicant Alexandra LeBreton -for D.O. C.J. - Per Se

SUMMARY: Extension of Protective Intervention Order DECISION

DELAQUIS, J., ORALLY: OVERVIEW [1] A.J. [D.O.B....2014] is presently nine (9) years old [“the child”]. [2] On July 31, 2014, shortly after separation, the child’s biological mother D.O. brought the child to the Emergency Departmentand alleged that the biological father C.J. sexually abused the child. At that time, the child was only about six months old. C.J. hassteadfastly denied these allegations up to the present day. [3] A lengthy custody battle ensued. In November 2018, D.O filed a Motion to Change the Consent Order issued in December2016.

On February 25, 2020, the Court heard the Motion to Change and granted sole custody (as it was then referred to) of the child toC.J. with certain access to D.O. [D.O. v. C.J. 2020 NBKB 050]. [4] The Minister of Social Development [“the Minister”] filed an Application on August 31, 2020, seeking a ProtectiveIntervention Order (PIO) vis-à-vis D.O.

An Interim PIO Order was put in place on September 9, 2020, pending the disposition of theApplication. [5] On April 8, 2022, Madam Justice Daigle rendered a lengthy decision after a 10-day trial, granting a Protective InterventionOrder (the “PIO Order”) vis-à-vis D.O. for a period of 12 months commencing September 3, 2021 [“the Decision” at pages 452-520 ofthe Trial Record]. [6] The PIO Order issued by Justice Daigle in essence states that D.O. is to refrain from any contact or association with the childand may only have supervised access to the child as approved by the Minister.

In addition, the PIO Order provides that D.O. “shallrefrain from taking the child to any hospital, clinic, doctor, or any other medical professional for a physical exam, unless accompaniedby representative of the Department of Social development.” [7] On August 23, 2022, the Minister of Social Development [the Minister] filed an Application seeking to extend the PIO Orderfor a period of 12 months pursuant to sections 58 and 60(2) of the Family Services Act S.N.B. 1980, c.F-2.2 (hereinafter FSA). [8] The Respondent C.J. did consent to the Minister’s Application at the first appearance on September 1, 2022. [9] However, D.O. did not consent to the relief sought by the Minister and applied for state funded counsel.

On November 8,2022, the Court granted D.O.’s request for state-funded counsel after a “G” hearing: see New Brunswick (Social Development) v D.O.and C.J., 2022 NBKB 212 . [10] The parties appeared at the hearing of this matter on January 4 and 6, 2023 to present evidence and their submissions on theissue of whether the PIO Order should be extended for another 12 months. [11] The Minister takes the position that the burden has been met in this case. The Minister argues that, according to the applicabletest, there is a continued need for the relief sought and that it is in the child’s best interests.

D.O.’s disagrees. She believes that she posesno harm to the child and now knows her boundaries, despite her absolute conviction that her allegations of sexual abuse by C.J. are true.She repeated those allegations at the hearing of this matter, 9 years after they were first raised. [12] For reasons that follow, I am satisfied that there is an ongoing need for the PIO Order to be extended and that it is in the child’sbest interest to do so. In essence, almost nothing has changed since Justice Daigle rendered her Decision.

FACTS [ 13 ] For the purpose of this oral decision, I will not summarize in detail every aspect of the viva voce testimony at the hearing except to state that I have considered all of it, in addition to the Affidavit evidence contained in the Trial Record, as well as the affidavits of Mr. and Mrs. R. filed on December 29, 2022. [ 14 ] I will begin by referring to certain Affidavit evidence. [ 15 ] Most of the affidavit evidence submitted by D.O. restates and summarizes the evidence, especially the medical evidence, that was before Madam Justice Daigle during the 10-day trial.

In fact, D.O. attached to her Affidavit filed August 31, 2022, the exact same affidavit that was before Justice Daigle: see pages 132 to 163 of Trial Record and paragraphs 126 to 130 of the Decision, at pages 493 and 494 of the Trial Record. [ 16 ] Likewise, D.O. attached several medical reports and affidavits from various physicians to her Affidavit that were already before Justice Daigle and summarized by her in detail. For example, D.O attached a detailed report from Dr. Amy E. Ornstein, a pediatrician, signed on March 29, 2019, to her Affidavit [pages 93-105 of Trial Record].

Justice Daigle referred to the exact same report from Dr. Ornstein at paragraphs 71 and 72 of the Decision and drew three conclusions from that report, as set out in paragraph 73 of her Decision. [ 17 ] Another example is the Affidavit of Dr. Joanne Fellows (the child’s family physician at the time) situated at pages 57-58 of the Trial Record. Justice Daigle quoted paragraph 8 of Dr. Fellows’ Affidavit verbatim in her Decision at paragraph 41. [ 18 ] Yet another example is Dr. Marianne McKenna’s Report dated November 9, 2015, attached to D.O.’s Affidavit at pages 254- 255 of the Trial Record.

That report prepared by Dr McKenna is quoted verbatim at paragraph 36 of the Decision. [ 19 ] Dr. Mary Ann Campbell was asked by the Minister to prepare a Psychological Assessment Report with respect to D.O., which she did on January 20, 2019. Dr. Campbell’s 26-page report is submitted by D.O. at pages 346 to 370 of the Trial Record. Justice Daigle refers to, and quotes, from the same report from Dr. Campbell in paragraphs 83 to 87 of the Decision, and again at paragraph 123 when she was weighing the expert evidence before the Court. [ 20 ] D.O. was admitted to the Hospital on April 19 to May 4, 2021.

That admission was discussed by Justice Daigle as well, who referenced Dr. Potter’s evidence at paragraphs 95 and 108 of the Decision as well as her Progress Notes at paragraph 107: [95] …It was noted that she had recently used marijuana, speed and cocaine. It was noted that she had a bizarre thought process and auditory hallucinations. She had significant religious delusions. She indicated she was a discipline of Christ and "one with the Trinity". She believed she had special powers and could read minds. She felt that her ex-partner and roommates were plotting to kill her.

She spoke extensively about being kidnapped and about the justice system trying to sell her daughter as a sex slave on the black market. She reported that she had been seeing a counselor (her pastor) but felt that this person had abandoned her in a time of need, which she described as a "life or death" situation. She was upset that this individual had apparently told her that many of her memories did not actually happen. [107] In one of her final progress notes, Dr. Potter indicated: I am releasing her tomorrow morning. I spoke to child protection on the phone this afternoon.

My recommendation to them is that she not have unsupervised visits and that she only be allowed to see [the child] in the presence of a social worker from the Department of Social Development. I do not think she would do anything to harm her daughter directly and shared that my concern is that she might elope with the child based on her belief that she would be protecting [the child] from threat/harm. Unfortunately, [the mother] is very angry at anyone who has not "sided with her" in the past. (...) [108] At trial, Dr.

Potter confirmed that, given the length of time that the mother has been making allegations of abuse regarding the child, her current delusional disorder is her baseline, and she will never stray from the rigidity of her beliefs. Dr. Potter further confirmed that she would always have concerns regarding the mother and her contact with the child. However, her concerns would be lessened if all

contact between the mother and the child was supervised. [ 21 ] The Court noted the absence of any of Dr. Potter’s reports and, more specifically, her Discharge

Summary or Final Progress Notes from D.O.’s two Affidavits. In fact, Justice Daigle preferred Dr. Potter’s evidence over Dr. Onwuchekwa’s evidence. Here is what Justice Daigle found at paragraphs 119 and 120 of the Decision: [119] Dr. Onwuchekwa indicated that he was the only one who examined the mother in a clear state of mind, when she was not in a psychotic state and thus, he felt this was an important difference and placed him in a better position to assess the mother. I note however, that he examined the mother on only one occasion, whereas Dr. Potter met with the mother daily over the course of two weeks.

Further, he was contacted by the mother because she questioned Dr. Potter's diagnosis. It is evident that the mother was concerned about the impact that Dr. Potter's diagnosis would have on her case. On the other hand, Dr. Potter simply happened to be the treating psychiatrist when the mother was taken to hospital last April. [120] As between Dr. Potter and Dr. Onwuchekwa's opinion evidence, I prefer the evidence of Dr. Potter. She met with D.O. daily over a two-week period and she had a lengthy meeting with her mother J.A.

Overall, she appeared to have far greater knowledge of the circumstances surrounding the mother's beliefs. She was provided with more information than Dr. Onwuchkwa. She had a better understanding as to how the mother's mental health issues may impact the child. At no time did Dr. Onwuchekwa discuss how the mother's beliefs may be affecting the child. [ 22 ] Justice Daigle then relied upon Dr. Potter’s evidence, in addition to other medical evidence, when applying the best interests criterion as defined in s. 1 of the FSA .

I will highlight her findings at paragraphs 217 to 219 of the Decision that relate to the criteria of the mental, emotional and physical health of the child and the need for appropriate care or treatment, or both, as they are important in my view: [217] Similarly, Dr. Laurie Potter testified that the mother's behaviour placed the child at risk of psychological harm. She indicated that repeatedly questioning the child about sexual abuse could be quite damaging for the child as it could cause the child to create false memories.

She confirmed that hearing it constantly, and continuously focusing on sexual abuse could be quite damaging for the child. She hoped that in a supervised setting, mother and child could interact in a healthy way, rather than focusing on finding proof of sexual abuse. [218] Dr. Potter testified that given the length of time the mother has been making allegations of abuse regarding the child, she will likely never stray from the rigidity of her beliefs. Dr. Potter confirmed that she would always have concerns regarding the mother and her contact with the child.

However, her concerns would be lessened if all contact between the mother and the child was supervised. Dr. Potter was very concerned that if the mother was alone with the child, she would continue to look for evidence, either by questioning the child or by looking for physical evidence. According to Dr. Potter, the mother repeatedly indicated that the child was in imminent danger when she was in hospital and she was very articulate that nothing was more important to her than protecting her daughter from that danger. As such, Dr.

Potter was concerned about what the mother might do to "save" the child. [219] I accept the evidence of Dr. MacMullin and Dr. Potter that these repeated allegations and examinations put the child at risk of mental and emotional harm. At no time during the course of this trial did the mother suggest or give a glimmer of hope that she would stop. [ 23 ] D.O.’s Affidavit filed on October 7, 2022, contains mostly her

summary of the medical evidence. This evidence is described as “DIAGNOSIS LIST AND YOUTH WORKER CONCERNS AND SYMTOPM LIST” and references various entries in the “Medical Books”, which were of course before Justice Daigle at the trial. [ 24 ] In order to better understand and determine if there is a continuing need for an extension of the PIO Oder, it is important to consider other findings made by Justice Daigle, including these: 1. In the Spring of 2018, D.O.'s allegations intensified, and the child underwent six examinations in a two-month period. [decision, para 57] 2.

Between July 2012 and May 2020, the child underwent approximately 38 medical examinations of her genital area and at least eight forensic examinations conducted by SANE nurses.

3. Evidence at the previous hearing indicated that D.O. was unhappy when SANE nurses decided to not administer a sexual assault kit on the child in April 2020. [see para 78 of Decision for example]. 4. At trial D.O. confirmed taking over 200 photographs of child’s genitalia, getting friends and family to view the area, in addition to approximately 50 videos, two of which were of the child’s genitalia in August 2017 and May 2019. D.O. also confirmed at trial to recording 48 video “confessions” but did not submit any of them as evidence.

Justice Daigle noted at para 108 of the Decision that D.O. was “(…) adamant that the child was unaware that photographs or videos were being taken. She also stated that she did not examine the child unless the child asked because her genitals were hurting”. 5. Next, it should be noted that Justice Daigle did not find D.O. to be a particularly credible witness, however she did not find D.O. purposely deceitful. Rather, Daigle, J. said “I accept that she wholeheartedly believes what she says to be true.

However, she has a tendency to interpret and repeat information in a way that suits her narrative.” [para 197 of the Decision]. She added at paragraph 201 that: [201] Further, as indicated above, when assessing credibility, special consideration must be given to the testimony of witnesses who are parties to the proceedings. It is important to consider the motive that witnesses may have to fabricate evidence. In this case, I did not sense that the mother was necessarily motivated by a desire to regain custody of her child.

Rather, my sense is that the mother has dedicated seven years of her life to this cause and she is simply desperate to establish that there is abuse. 6. At paragraph 73 of the Decision, Justice Daigle drew the following three conclusions from Dr. Ornstein's report: 1. The child's examinations revealed normal or non-specific findings that have many possible explanations and are commonly found in children in whom there are no concerns of abuse; 2. The absence of physical findings or non-specific findings in cases where there are concerns of sexual abuse is very common.

The vast majority of children who are seen because of concerns regarding sexual abuse allegations are found to have normal examinations; and 3. A normal examination does not confirm, nor refute an allegation of sexual abuse. 7. As noted above, Justice Daigle gave the most weight to Dr. Potter’s evidence. However, here are Dr. Potter’s opinions as summarized by Justice Daigle: [100] Dr. Potter diagnosed the mother with delusional disorder, which she defined as a psychotic illness about a fixed false belief. Dr.

Potter explained that delusions have to be present for at least a month and in this case, the delusions appear to have been present for about seven years. As she explained in Court, an individual with delusions cannot be talked out of the thought or delusion. She went on to explain that individuals with delusional disorder tend to be high functioning outside of the theme of their delusions, unlike individuals with schizophrenia or bipolar disorder. Thus, outside of her delusions, the mother presents as a very intelligent, very articulate and very organized individual. [103] Dr.

Potter was of the opinion that the mother's visits with the child should continue to be supervised by a professional given the strength of her belief that the child is being sexually abused. Dr. Potter was very concerned that if the mother was alone with the child, she would continue to look for evidence, either by asking the child if sexual abuse had occurred or by looking for physical evidence. According to Dr.

Potter, the mother repeatedly indicated that the child was in imminent danger and she was very articulate that nothing was more important to her than protecting her daughter from that danger. [ 25 ] The Court will also fully consider the evidence tendered by all the parties at the hearing that was not before Justice Daigle. [ 26 ] The Minister called the only expert to testify at trial, Dr. Eyal Lebovich, a psychiatrist. Dr. Lebovich was qualified as an expert in the field of psychiatry. The purpose of his testimony was, inter alia , to bring the medical forward from when the trial was completed.

This is important because Dr. Lebovich was D.O.’s attending psychiatrist while she was a Mental Health inpatient at the Saint John Regional Hospital from September 13 to 23, 2021, but also more recently, from July 5 to 22, 2022. [ 27 ] Dr. Lebovich’s Discharge Summaries for both admissions were attached to his Affidavit at pages 17 to 24 of the Trial Record. The Hospital Records from the first admittance in September 2021 were referred to and considered by Justice Daigle at paragraphs 110 to 114 of the Decision, including Dr. Lebovich’s Discharge

Summary and his opinion: [113] In his discharge

summary, psychiatrist Dr. Eyal Lebovich further explained: It is my opinion that this is her baseline state and that she will likely always have these delusional beliefs to some degree. Her other psychotic beliefs have resolved but these core beliefs have been present for a very long time and are very treatment resistant.

[ 28 ] D.O. was admitted again in July 2022 with Dr. Lebovich acting as her attending physician. In his testimony, Dr. Lebovich explained that one of the differences between the two admissions is that the first was brought on by magic mushrooms and cannabis, while the second in July 2022 was more cannabis induced. [ 29 ] Dr. Lebovich explained that the diagnoses for both admissions were Acute Drug-Induced Psychosis and Delusional Disorder, despite his inadvertent omission to specifically refer to Delusional Disorder in his July 2022 Discharge

Summary. He explained that Dr. Potter was the physician who initially diagnosed D.O. with Delusional Disorder. [ 30 ] Dr. Lebovich was aware that D.O. was being treated for Delusional Disorder for years. He testified that he spoke to Dr. Potter about it. For Dr. Lebovich, the diagnosis of Delusional Disorder was therefore part of her psychiatric history before he treated her for the acute issues that led to her admissions.

He testified that Delusion Disorder is difficult to treat with anti-psychotic medication, it is more chronic and treated “in the community” rather than as an acute episode, which is what he was attending to D.O. for in September 2021, and again in July 2022. [ 31 ] For clarity, I accept Dr.

Lebovich’s testimony that his discharge diagnoses in July 2022 with respect to D.O. were Cannabis Induced Psychosis and Delusional Disorder, the same two diagnoses he found when D.O. was discharged in September 2021. [ 32 ] More should be said about what led to the July 2022 admission as it confirms a certain continuity in terms of D.O.’s mental health challenges, in addition to being a relevant event that occurred after Justice Daigle heard the trial. For clarity, here is what Dr. Lebovich noted in his Discharge

Summary for the July 2022 admission: Identifying data: 27 year old single female, previously a mechanic and worked at Tim Horton’s prior to admission. She is the mother of a 7 year old girl. Well known to services, last discharge in November 2021 from Community Mental Health team and was admitted twice in the last year to 4DN for drug-induced psychosis. Lived with roommate in St. John, just prior to admission. Followed by Dr. Ike Onwuchekwa community. Chief complaint: Admitted on Form 1, transferred from Fredericton to 4DN, due to staff shortage a hospital. Presented with acute psychosis.

History of presenting illness: As per Fredericton psychiatrist, patient hitchhiked from Saint John to Woodstock and assaulted the truck driver who picked her up. He contacted the police who brought her to hospital reporting that she had “bizarre behaviour” was tangential and “didn’t make sense”, talking about dead people under her home in Saint John and her daughter being abused. Patient reported not sleeping for more than a week and avoiding drinking water, believing that it contained harmful chemicals.

She believed that staff were colluding with people trying to harm her and said that her roommate was giving her rat poison with intention to kill her, prompting her to run away from home. Past psychiatric history: Multiple admissions and last year (last inn Sept 2021), both Substance Induced Psychosis History of OD and self-harm Previous diagnoses: Substance Induced Psychosis, Delusional Disorder, BPD, MDE. Substance use history: Alcohol Cannabis Social History: [D.O.] is currently involved in a convoluted custody with this dispute with DSD over care of her daughter ([the child] seven years old).

[C.J.], daughter’s father, has full custody and [the child] is allowed to see D.O. twice a week for two hours. [D.O.] believes that [C.J.] and his family have been sexually abusing [the child] since she was two years old. She was living with her roommate in Saint John prior to admission. She says that she “knew [her roommate] is a Wiccan and believes in black magic, but agreed to live with her “against her better judgment”. She says that she will go longer live with this roommate and that upon discharge she will bring her next of kin, [J.] to live with her until they can find a separate apartment together.

Course in Hospital: Form 2.1 was filled. Initially patient refused to take medications, was irritable and edgy, continued to have tangential speech with poor insight for first couple of days, then started on Risperidone, after which she seemed to turn around and adopt a more pleasant demeanour. She continued to have persecutory delusion and somatic nature. MRI, EEG ordered as advised by Neurosurgeon in Moncton. The report showed that there is no evidence of compression by tumor and normal sleep and wake cycles respectively. X-ray of C-spine was normal.

Risperidone was increased to 1.5 mg daily on July 14, resulting in patient feeling “spaced out” for three days, then stabilizing and feeling well for 5 days until discharge, with little change in behaviour as observed by nursing staff. Patient continued to state that roommate practiced black magic in their apartment and that her mother and sister were colluding to force her to undergo brain surgery. She endorsed that they were trying to turn her against medical staff. She acknowledged that Cannabis seems to play a role every time she goes into a psychotic state.

Key Investigations: All investigations normal, with exception of brain MRI showing Meningoma, which is not new. [Pages 22-23 of Trial Record]. [ 33 ] I point out that paragraph 24 of the Affidavit of Ms. Stevens-Kelly essentially corroborates the facts pertaining to wiccan and black magic outlined under the Social History heading of Dr. Lebovich’s Discharge

Summary. [ 34 ] Dr. Lebovich confirmed that D.O. was discharged back home. He felt she was not a risk to others.

When asked on cross- examination about whether she was a risk to her daughter, he stated that he did not “get into it” with D.O., that it is “not black and white”, that here may be a “degree of risk” given that the issue with her daughter had been going on for several years. [ 35 ] Social worker Caitlan Stevens-Kelly testified that since August 2022 she had made a referral for D.O. to receive Eye Movement Desensitization and Reprocessing or “EMDR” Therapy, but that the therapy had not yet started because the clinician wanted to speak to D.O. first.

She was not aware of any recent referrals to mental health for D.O. and stated that D.O. refuses to provide her consent to the Minister obtain medical records. [ 36 ] Paragraph 24 of Ms. Stevens-Kelly’s Affidavit refers to a telephone call between her and D.O on July 12, 2022, during her admission to the Hospital: On July 12th, 2022, I received a call from [D.O.]. She stated that she was in the hospital and that the hospital suggested she had visits with [the child] at the hospital.

I let her know that I would ask [C.J.] about this. [D.O.] shared with me that I did not worry anymore about her contact with [the child] as [D.O.]’s current stay is due to black magic being placed on her home by her roommate and that her mother and sister were part of this wiccan black magic spell placed on her home. [D.O.] shared that she has kicked her roommate out that placed the wiccan magic spell and cleansed the home so there should be no more problems with this anymore.

I stated that I did not know anything about wiccan magic but would speak to [C.J.] regarding the possibility of visits occurring at the hospital. I asked for her consent to speak with the hospital regarding her mental health concerns and the association with wiccan magic, she refused. [ 37 ] On cross-examination, Ms. Kelly-Stevens confirmed that supervised visits between D.O. and the child take place twice per week, 2 hours per visit. No more than 5 visits since August 2022 have been cancelled. There are no plans to change the schedule, nor to change the visits to unsupervised.

She stated the visits are positive generally, that the child is excited to see her mother and that their relationship is “as good as it can be”.

[ 38 ] Ms. Kelly-Stevens stated that more time for visits is not possible based on availability of support staff in addition to the child’s available time as well. She maintains that the Minister’s concerns still relate to ongoing allegations that affect the child and, as a result, there is no plan to support unsupervised visits. In essence, Ms. Kelly-Stevens stated that “very little” has changed since the trial took place. [ 39 ] D.O. testified as well.

She spoke about treatment she was receiving from a mental health worker since July 2022, how cognitive behavioral therapy has helped her with anxiety attacks and how she removed herself from the toxic situation with her roommate that led, at least in part, to the Hospital admissions and other concerns. In addition, she has been taught energy healing and, more specifically, how to cleanse the negative energy from her body and “remove fear from the equation”.

Since the trial, D.O.’s treatment consists mainly of CBT and DMHT or Diabolical Mental Health Treatment. [ 40 ] D.O. confirmed that she took magic mushrooms in September 2021 “to reset my brain” and that she will never touch those drugs again. She has not drunk any alcohol since December 2019 and has been free of cannabis since July 4, 2022. As a result, she says that she is coping well now, that she does not allow fear to control her life which is significant for her given her upbringing as a child.

For example, she has “put up boundaries” and does not speak to her mother anymore. [ 41 ] D.O. recounted one visit where she tried to explain to the child why she was admitted to the Hospital. She started to explain that she found two decks of Tarra Cards and black magic in the home. She believed that the child was being taught black magic and when she attempted to pursue this discussion with the child, she was “shut down” by the Minister’s representative.

She believes that any conversation that stresses out the child should not be shut down or restricted. [ 42 ] D.O. further testified that the child’s religious beliefs are being unduly restricted as well. She says the child listens to her about religion but will not pray. She testified that: “I surrounded the child with Christianity” but is concerned that C.J. does not bring the child to Church. [ 43 ] D.O. expressed concerns that the child is more reluctant to talk about things such as, for example, alleged eating problems at school as much as before.

She alleges that C.J. and his partner prevent the child from eating snacks that D.O. brings for the child. [ 44 ] In essence, D.O. says that she cannot have a normal relationship with the child and that the supervised visits are affecting their relationship. [ 45 ] D.O.’s current support system includes M. R. and S. R., her sister and her family. She also relies on her friend J. and her family and only people “that are a role model for the child”. [ 46 ] M.R. submitted an Affidavit and testified as well. He met D.O. in January 2022. They began to know each other over the next few months.

It was clear to M.R. that D.O. needed some help, particularly after the July 2022 Hospital admission, so he and his wife S.R. made her an offer to stay with them. D.O. has stayed with them since August 17, 2022. They look after D.O. as much as possible. M.R. says she is a lot of fun and passionate about her daughter. He and his wife keep D.O. calm and help reduce her stress. They feed her and drive her to her appointments. [ 47 ] M.R. described D.O. as a mother concerned about the child. He has been shown pictures and videos of D.O. and the child. He was asked if D.O. is ready to parent.

His view is that a mother that demonstrates that level of concern deserves more time with the child. On cross-examination, M.R. confirmed that he has read “some affidavits and reports”, but not the affidavit of the family physician, nor the Decision. He further confirmed that D.O.’s concern about alleged child abuse is “top of mind for her, all of the time”. [ 48 ] S.R. also submitted an Affidavit and testified. Her evidence is that at first, D.O. was very intense and that she was “living with dark souls” in reference to her roommates at the time. D.O. was “wounded” before.

However, S.R. believes that D.O. is now turning into a better person. She is not angry anymore, warmer, and more comfortable. S.R. has also seen videos showing, among other things, that the child appears to be happy. S.R. is horrified with what D.O. has gone through and believes everything that D.O. has told her about what that has happened leading up to this hearing.

[ 49 ] In cross-examination, S.R. agreed that D.O. remains concerned about the alleged abuse and that she still talks about it, but doesn’t dwell on it. S.R. has “gone through the papers” in reference to the documentation relating to this matter, except for the Decision. Her and D.O. talk about how God would handle the situation and believes that D.O. is “not so dark now”. They pray and go for walks. [ 50 ] C.J. has consented to the continuation of the PIO Order. He believes after all this time that nothing has really changed. He went through the custody case in addition to the multiple other court hearings.

He would be happy if the visits could proceed unsupervised, but they can’t because the child needs to be protected. He says D.O. continues to refuse to believe multiple professionals and that her claims are simply not substantiated. [ 51 ] In terms of exposing the child to religion, C.J. stated that he has always encouraged her to develop those beliefs. The reality is that although C.J. and his partner are not “Church-goers”, he has never advised the child to not believe in God. [ 52 ] C.J. testified that the child continues to grow. She is happy, positive, bright, misses her mom and continues to adjust.

Before visits, the child is mostly excited. Rarely are visits cancelled by the child. When the child returns home, she is very quiet according to C.J. and offers mostly one- or two-word answers to basic questions such as how the visit went. The child mostly prefers to not talk about certain things. C.J. also confirmed that the child doesn’t like doctors or Hospitals. His evidence is that the child is scared, but not terrified, of doctors. [ 53 ] C.J. confirmed calling Ms. Stevens-Kelly on July 6, 2022, to inform her that the Police received a call from D.O. from the Hospital where she was admitted.

D.O. asked the Police to go to her home because C.J. “had strapped a bomb to [the child] and hidden her underneath [D.O.]’s apartment stairs”. In other words, C.J. confirmed the contents of paragraph 22 of Ms. Stevens-Kelly’s Affidavit [Page 10 of the Trial Record]. [ 54 ] On cross-examination, C.J. confirmed that the child loves D.O., that she is very excited to see her “85% of the time”, but that there have been some situations that were “not so positive”. C.J. did agree that having D.O. in the child’s life is positive, but that professional supervision remains necessary.

C.J. has essentially ended calls between D.O. and the child since the trial “based on my years of experience” and because the calls are used for “interrogation”, rather than visits. He testified that when calls were taking place, the child would often say “I gotta go” and the calls would end. He confirmed that some calls between them have taken place since the trial, but despite starting out on a positive note, then mostly end on a sour note. When asked about teaching the child religious beliefs, C.J. responded by stating that “I can’t teach what I know nothing about”.

ISSUE [ 55 ] D.O. continues to state emphatically that she must continue to fight to prove that the child was sexually abused by C.J. To be clear, that is not the issue I must decide in this matter. [ 56 ] The issue before the Court is whether it is in the child best interests to extend the PIO Order for a further12 months. LAW AND ANALYSIS [ 57 ] The Minister is asking the Court to extend the PIO Order pursuant to

section 58 of the FSA , which provides in part as follows: 58(1) The court may make a protective intervention order directed to any person who, in the opinion of the court, is a source of danger to a child’s security or development. 58(2) A protective intervention order may contain such provisions as the court considers to be in the best interests of the child, including a direction to the person named in the order to do either or both of the following: (

a) to cease to reside in the same premises in which the child resides, (

b) to refrain from any contact or association with the child. [ 58 ] As agreed upon by the parties, the test for an extension of the PIO Order is as stated in Catholic Children’s Aid Society of

Metropolitan Toronto v. M. (C.), (SCC), where the Supreme Court of Canada stated as follows: 35 It is clear that it is not the function of the status review hearing to retry the original need for protection order. That order is set intime and it must be assumed that it has been properly made at that time. In fact, it has been executed and the child has been taken intoprotection by the respondent Society. The question to be evaluated by courts on status review is whether there is a need for a continuedorder for protection. .... 37 The examination that must be undertaken on a status review is a twofold examination.

The first one is concerned with whether thechild continues to be in need of protection and, as a consequence, requires a court order for his or her protection. The second is aconsideration of the best interests of the child, an important and, in the final analysis, a determining element of the decision as to the needof protection.

The need for continued protection may arise from the existence or the absence of the circumstances that triggered the firstorder for protection or from circumstances which have arisen since that time. [59] I wish to provide an analysis of some of the evidence before making findings on the two-step process set out by the SupremeCourt of Canada. [60] The Minister presented Affidavit evidence of “an intake call from a nurse” at the Saint John Regional Hospital on July 15,2022. Paragraph 25 of the Affidavit of Ms.

Caitlan Stevens-Kelly summarizes the contents of this intake call as well as D.O.’s course atthe Hospital. The nurse remains unidentified and did not testify at the trial, nor where his or her notes or any hospital records tendered asevidence, other that Dr. Leboyich’s Discharge

Summary. I will not accept this hearsay evidence for the truth of its contents, nor will I putany weight on this evidence considering that there are discrepancies between it and the information contained in Dr. Leboyich’sDischarge

Summary that I have already referred to above. [61] Paragraph 21 of Ms. Stevens-Kelley’s Affidavit also contains hearsay evidence because it conveys discussions she had withKatina Russell Feggos, a Clinical Case Manager at Family Plus/Life Solutions, but also about what the child allegedly told KatinaRussell Feggos. If this evidence was critical or significant to the Minster’s case, the proper approach was to obtain an Affidavit fromKatina Russell Feggos or to call her as a witness and produce her for cross-examination to properly assess the reliability of statementsmade to her by the child.

For these reasons, I will not accept paragraph 21 of Ms. Stevens-Kelly’s affidavit for the truth of its contents. [62] Despite the findings made by Justice Daigle with respect to the expert evidence generally and, more specifically, her acceptanceof Dr. Potter’s opinion and diagnosis as discussed above, D.O. testified at this hearing that she does not believe that she suffers fromDelusional Disorder. Here is D.O.’s testimony on this point: Q. So, your answer is you do not believe you have Delusional Disorder? A. For me to have Delusional Disorder no other person – Q. I’m just asking for a yes or no, Ms. [O.]. A.

No other person would have raised concerns, but because professionals and other people have raised concerns, no I do not haveDelusional Disorder. Delusional Disorder is for evidence to not exist not for Social Development to state that it doesn’t exist. [63] Affidavits of Kathleen Degrace sworn to on November 14, 2018 in relation to Cause No. FDSJ-181-14 and Bobbie Smith swornto on April 8, 2018 and May 8, 2018 in relation to Cause FDSJ-562-2017 are also attached to D.O.’s Affidavit. Both of those individualstestified at the trial before Justice Daigle.

I will only make a few comments in relation to these two Affidavits. [64] The Degrace affidavit is replete with inadmissible hearsay. For example, Ms. Degrace discusses a conversation that the childhad with her own child about what C.J. allegedly did to her. Ms. Degrace further opined in her affidavit that the child did not want to bein the bedroom with the social worker with the door closed, but also stated that if Minnie her therapy dog was not with her in thebedroom, that the child would “cry or clam up”. In addition, the Court notes that Ms.

Degrace says she swore her affidavit “on the 11 November 2018 at 6:00 pm/6:15 pm”, whereas the jurat indicates that it was sworn to on November 14th, 2018. [65] Ms. Smith’s Affidavit sworn to on May 8, 2018, is equally replete with inadmissible hearsay. For example, at paragraphs 6 and7, she relates conversations she had with her daughter about what the child did or said back in early 2018. At that time the child wouldhave been 4 years old, the same age as Ms. Smith’s child.

None of this evidence was tested for its reliability. [66] In cross-examination at this hearing, D.O. was asked about evidence that was before Justice Daigle, including the Affidavits of

Ms. Degrace and Ms. Smith. Here is the exchange that took place on this point: Q. I guess, what evidence wasn’t presented not necessarily presented, not necessarily (inaudible), but all that evidence was presented. So, Kathleen Degrace presented – A. No, I'm telling you that it wasn’t. Q. Bobbie Lee Smith testified, Kathleen Degrace testified. A. Both of her affidavits were not in there. Q. But she testified, correct? A. She may have testified but not all the evidence was testified to. Q. But she testified and it all has to do with information prior to the hearing? A.

Again the relevance is that it needs – it needs to be said that there was cause for concern. The – it’s not being argued whether the judge was right or the judge was wrong, or that you were right or that you were wrong, was is being argued, what it was presented was because it needs to be shown that I was not the only one that has been concerned for my child. That there was day care workers, that there was professionals that raised concerns about the abuse. Not that the abuse has happened, but that there were professionals as well as individuals that stated that there was cause for concern.

You are stating – you’re – you’re affidavits as the position – as the Minister’s position has stated that there is no concern. That nobody has ever raised concerns for my child. And it is in there specifically to show that there was concerns raised. Even in the decision there was concerns raised but that you presented a more favorable case. [ 67 ] D.O. has made her concerns about the alleged abuse, whether those concerns are raised by Ms. Degrace or Ms. Smith or others, abundantly clear to the Court.

My reading of the Decision is that Justice Daigle was also very sensitive to the same concerns raised in the evidence. In fact, she squarely addressed Ms. Degrace’s evidence at paras 163-169 with reference to Affidavit evidence submitted by her, as well as Ms. Smith’s evidence at paras 173 to 180 of the Decision. For example, here is what Justice Daigle stated at paragraphs 184 and 187 of the Decision: [184] I accept that the child made these statements to Ms. Degrace. Ms. Degrace was an independent and neutral witness. She did not have a stake in these proceedings and had no reason to lie.

Further, her demeanor in Court suggested that she was genuinely concerned about the child. [187] Ms. Degrace agreed that a child of that age would not understand what "molested" meant. The fact that the child used this language would tend to suggest that she was coached or that she had heard someone say this and was mimicking their comments. I note that at that point in time, the child had not seen her father in at least a month. It is entirely possible that she had been told or had overheard someone say she could not see him because he molested her. [ 68 ] Justice Daigle then considered the evidence of Ms.

Smith, juxtaposed with D.O.’s Affidavit at paragraphs 192 and 193 of the Decision: [192] As stated, I agree that it is unusual that the child used the word "molested". The mother tried to explain why the child used this language in her affidavit. She discussed an event which took place in November 2017 and stated: Shortly after this event, another event took place with bobbie lee and her child at the Lakeville gas station, [the child] was showing oversexualized behaviour with barbies and had tried to sexually harm her friend [X].

Bobbie lee used this incident as an example to inform [the child] of the correct terminology of private parts and the act of her trying to harm her friend was called "molesting" hence,

later, child stated this exact term. Bobbie lee pushed that it was crucial given the child's situation that the child knew correct terminology in order to efficiently and correctly testify to the abuse she had endured (...) [193] This evidence does not provide reassurance. Rather, it heightens my concern that the child was coached. [ 69 ] Justice Daigle ultimately concluded after assessing all this evidence as follows at paragraph 195: [195] Considered in a vacuum, the evidence of Ms. Degrace is alarming and difficult to reconcile.

However, the weight to be given to this evidence must be assessed based on the totality of the evidence. Here, having considered all of the evidence, I am reluctant to rely heavily on the child’s statement to Ms. Degrace. I am concerned about assigning significant weight to her statement given the mother’s potential influence on the child. [ 70 ] D.O. did not call Ms. Degrace or Ms. Smith to testify about any post-trial facts or observations at the within hearing. The “cause for concern” that D.O. relies upon to attach Ms. Smith and Ms.

Degrace’s affidavits to her own now existed at the time of the trial and was determined by Justice Daigle. The issue is not to re-determine if there was cause for concern in terms of abuse of the child. The reality is that the Affidavits were sworn to years before the trial and do not contain any admissible or reliable facts that assist the Court in determining the issue of whether it is in the child’s best interests to extend the PIO Order. [ 71 ] I point out that D.O.’s two Affidavits were prepared by herself, before counsel was appointed to represent her at this Hearing.

Justice Daigle was alive to this evidentiary issue when she stated at paragraph 126 that: “The vast majority of her [D.O.’s] affidavit and viva voce testimony consisted of her summarizing and interpreting medical information” and at paragraph 127 that “At times she referred to herself in the third person and described medical opinions in the first person (as though the physician would be signing the affidavit).” [ 72 ] As gatekeeper of evidence, I must say that much of D.O.’s evidence as it pertains to medical issues such as treatment, diagnoses, observations, and findings is inadmissible because it is her

interpretation and

summary of the medical reports, she called no expert evidence at trial and therefore none of the authors of any of the medical reports testified or even swore an Affidavit. In addition, D.O.’s affidavit evidence contains mostly hearsay in addition to her

summary and

interpretation. D.O. has a lot of strong opinions about medical issues and treatment as it relates to sexual abuse in addition to the diagnoses she has received with respect to her own mental health. But the fact is that she is not an expert. Her opinion(

s) and

interpretations on medical issues that require expert testimony are therefore inadmissible. [ 73 ] The areas where D.O.’s affidavit evidence do not touch upon expert opinion evidence and relate to facts that were before Justice Daigle shall not be given any weight. The same conclusion applies for any other evidence that was before for Justice Daigle. The reason for this conclusion is that all this evidence was already considered, summarized, analyzed and weighed by Justice Daigle in her Decision. I will not do so again. That is not my role in the within matter.

My role is not to redo what has already been done and decided by another Judge after a 10-day trial. Finally, I cannot change or alter Justice Daigle’s findings and indeed, this hearing is not an appeal of her decision. [ 74 ] Justice Daigle’s PIO Order is “set in time” and I “must assume that it has been properly made at that time”, as the Supreme Court of Canada explained at paragraph 34 of Children’s Aid Society of Metropolitan Toronto v. M. (C.) , supra. [ 75 ] Justice Petrie recently made essentially the same point in Minister of Social Development v. L.B. and R.B. 2022 NBKB 170 at paragraph 10 : 10 .

The second comment I wish to make, and I wish to paraphrase what I recently stated, in part, in a decision reported as Minister of Social Development v. E.T. and J.P. , 2021 NBQB 231 , at paragraphs 3 and 4 ; a child protection case in the circumstances of a custody extension. Context matters. It is critical to fully appreciate the specific circumstances of the Minister’s application. Here, the Minister is seeking to extend an already existing custody order with respect to the three children, an order made following a five day custody trial before me in July 2021.

To be crystal clear, I.B. and R.B.’s objection to the application before me is not an opportunity for them to appeal or retry the original custody order determination. That order was made and is assumed correct at that time. Instead,

the issue before this Court is whether there is still a need for a continued temporary custody order of protection for the children. [Emphasis mine]. [ 76 ] Keeping this analysis of the evidence as well as the correctness of the PIO Order in mind, the Court will now focus evidence regarding facts that occurred since the Trial to determine if there is a continued need to protect the child. [ 77 ] These post-trial facts include D.O.’s two admissions to the Hospital. I have already referenced the July 2022 admission.

However, on cross-examination, D.O. confirmed that she was also admitted on February 15 th , 2022, as well as April of “last year”, which I understood to mean the April 19 to May 4, 2021 admission under the care of Dr.

Potter referred to above. [ 78 ] At paragraph 65 of her affidavit dated August 31, 2022, D.O. confirms: … Taking my child to the doctor’s for valid medical concerns every single time she needed to see a doctor for genital exams is not emotional abuse, it is a priority in being a good parent and not neglecting her medical needs. [ 79 ] The evidence also demonstrates that D.O. has continued to contact the police to pursue her allegations. Here is her testimony on this point at this hearing: Q.

Now you continue to approach police forces even since the last order to try to get them in assistance in charging Mr. [J.] with sexually assaulting [A.], isn’t that true? A. Yes, because the medical evidence states sexual assault as a diagnosis. Q. So, since the last order, you’ve approached – A. And my child had stated that she had been sexually abused as a the day care worker Kathleen Degrace reported in the last Social Development trial. Q. So, you’ve been to the Saint John City Police? A. Certainly have. Q. And what other police force have your approached since the last trial? A. RCMP. Q. The RCMP.

Which detachment? A. It was the RCMP first and I was told to go to the Saint John Police Department and the Saint John Police Department then referred it to the RCMP. Q. And the officer with the Saint John City Police, Tony Arsenault, spoke to you about putting private medical information of [A.] on public FaceBook groups and suggested to you that you should take those down, correct? A. The reason being is he told me that I should be scared of slander – to not be charged with slander.

And I said slandering is someone – is stating that someone said or did something when that is not in their definition of character. Slander is not provide – state – posting medical evidence, which were blacked out of names by the way, posting medical evidence that states facts. It’s not slandering someone, it’s showing facts. Q. So, you felt that it was an acceptable thing to post a whole bunch of your daughter’s medical information on a public group? A. Seeing as I was – I was – I had a go fund me page looking for financial help so that I could get a lawyer and do something about the sexual abuse, yes.

Because nobody in their right mind would help financially over a situation like this without seeing the medical evidence for themselves. Q. So you also had a go fund me page. Is that still active with – A. No. Q. - all your daughter’s personal medial information on the go fund me page? A. No. It hasn’t been since February of 2021.

[ 80 ] In terms of D.O.’s present beliefs, she testified as follows on cross-examination: Q. And you obviously continue to believe that your daughter is in danger right now? A. The medical evidence states that she’s been sexually abused. Q. And you believe she’s in danger right now living with her father? A. I don’t know what’s happened since he’s gained custody. I believe the fact that I’m still involved in my child’s life and adamantly continue fighting for her is what is keeping her from being abused. Q. You would prefer for her to be in foster care right now than living with her father? A.

Or living with me, yes. [ 81 ] D.O. nonetheless argues that the situation has changed since the trial and that there is no continuing need to extend the PIO Order. D.O. urges the Court to consider the following factors to bolster her argument. First, she has obtained assistance with respect to her mental health concerns. Second, the involvement of the R.’s in her life. Thirdly, she now respects her boundaries. [ 82 ] On the question of ongoing treatment, D.O. testified that she is undergoing CBT and DMHT Treatment at present as noted above.

However, no current treatment records such as clinical notes or other documents were submitted into evidence. No Affidavit from any of her health care treating professional(

s) were filed with the Court, nor were any called to testify at trial. [ 83 ] Reference to documents submitted by Rev.

Katherine (Kathy) Jeffries in Court of Appeal File 25-20-CA sometime in 2020 in respect of an appeal of the private law trial does not assist the Court in this regard. [See Exhibit 41 to D.O.’s Affidavit, at pages 341 to 343 of the Trial Record]. [ 84 ] The Court is essentially left without any expert evidence about the diagnosis or prognosis by current treating health care professionals, what if any benefit this treatment has had for D.O. and whether D.O. has progressed sufficiently in her treatment to proceed to unsupervised visits with the child.

What the Court can say with certainty is that the treatment to which the Minister has referred D.O. to has not yet started. [ 85 ] There is no question that the recent involvement of the R.’s in D.O.’s life is a positive development. I have no doubt that she is now living in a much better environment that before considering, for example, D.O.’s belief that wiccan and black magic involved her previous roommates.

However, as will be discussed in more detail below, D.O.’s beliefs and her boundaries in relation to the abuse, have not changed despite this move with the R.’s. [ 86 ] Considering the reasons that underlie the Minister decision to bring the first Application as well as Justice Daigle’s findings, it appears quite clear to me that nothing has really changed. Perhaps the best evidence to underscore this point came from D.O. on direct examination: Q. My last question is, is there anything you would like to add? You submitted a lengthy affidavit, is there anything you would add? A. Yes.

I realize that we not retrying the previous trial so, I will be very careful in how I word this. I’m in this position because Social Development does not want to acknowledge that any other individual, any other – any professional has stated that there are concerns about abuse. In the last trial – we’re not – I’m not allowed to specifically talk about it, I realize that, but in the last trial there were individuals and professionals that stated there were concerns. If it were to be Delusional Disorder, then nobody would be concerned about my child. No professional would be concerned, no one would raise concerns.

The problem isn’t that I have Delusional Disorder, the problem isn’t my mental health, the problem isn’t that I took her to the doctor. The problem is that Social Development does not want to acknowledge that they neglected my child. I – the evidence that I filed in my affidavit, although it's not there for purposes of retrying the case, it’s there to specifically point to the fact that there was people that raised concerns about the abuse. That it wasn’t emotional abuse for taking my daughter to the doctors. The evidence that I filed shows that my child went to the doctors for medical concerns.

It breaks my heart that she had to go to the doctors for medical – for sexual abuse concerns whatsoever, cause I definitely wouldn’t have wanted to be in her position. And it broke my heart every single time, but it had to happen because she had medical abuse concerns. Every single time. Whether it be undiagnosed – uh, unspecific – there’s so many problems when it comes to sexual abuse cases because a child, statistics say, will either have no symptoms and state that a child is abused, or will have unspecified symptoms where the majority is redness. Well my child has also had genital bruising.

She’s had swelling on her vagina, she’s had her vagina that was dilated,

her hymen was changed twice – or uh, had changed twice where she had an irritated hymen. Like there was – my child has tried to sexually hurt five children sexually. And the last trial there was witnesses that came forward and stated that. There was a day care worker that stated that she testified to the abuse. The problem isn’t that I emotionally abused my child, it was heartbreaking that she went to the doctors. It 100 percent was. The problem is that it keeps going on. She should be in foster care.

She should have been removed from both her father’s care and my care and placed in foster care where she is safe, but she wasn’t. [ 87 ] The same theme ran through D.O.’s evidence at the trial. As Justice Daigle noted in her decision at paragraph 150: [150] On cross-examination, the mother was asked whether she had ever considered that having the child undergo repeated medical examinations might be harmful to the child. She said she had thought about it because the Department has tried to brainwash her with this.

However, she disagrees that she is causing the child any harm. [Emphasis mine]. [ 88 ] Despite arguments raised by D.O., I am satisfied that there is a continuing need to extend the PIO Order. My appreciation of the totality of the evidence leads me to conclude that the circumstances that triggered Justice Daigle’s PIO Order, as discussed above, continue to exist. More specifically, those circumstances include the following: 1. D.O.’s beliefs about the cause of the problem remain firmly entrenched after about 9 years. Those beliefs continue to present a risk of harm to the child. 2.

D.O.’s mental health issues remain and are significant. The two Hospital admissions for psychiatric intervention since the trial provide medical continuity on this point. 3. The child is only 9 years old. C.J. has sole custody, but D.O. has been granted parenting time. The relief sought by the Minister in terms of an extension of the PIO Order is really the only way to continue to protect the child at this stage. [ 89 ] I will now apply the evidence to the second branch of the test which relates to the best interest test set out in the FSA . (

a) The mental, emotional and physical health of the child and the need for appropriate care or treatment, or both. [ 90 ] In my view, this is the key criterion to consider in this case. [ 91 ] Justice Daigle relied upon the evidence of Dr. MacMullin and Dr. Potter to conclude that the repeated allegations and examinations “put the child at risk of mental and emotional harm” and that “[A]t no time during the course of this trial did the mother suggest or give a glimmer of hope that she would stop.” There was no evidence before me to find otherwise. The medical evidence establishes continuity.

In addition, at no time during her testimony did D.O. provided the Court with any reassurance that she would, for example, stop bringing the child to endless medical examinations or stop trying to prove that her “concerns” are true, at any cost to the child. D.O.’s evidence convinces me that she has not changed paths and that she will not stop believing the same narrative. [ 92 ] D.O. says that she cannot have a normal relationship with the child if supervised visits continue.

Rather, the question is whether it is in the child best interests to continue to have what can only be described as an abnormal unsupervised relationship with D.O. The answer in my view is no, it is not. [ 93 ] I have concerns given D.O.’s testimony that without the PIO Order, she will continue on her quest to establish the alleged abuse 9 years after it started. The purpose of D.O.’s quest to uncover abuse is more to satisfy her own beliefs. These beliefs, which form the basis of various diagnoses such as Delusional Disorder and Drug-Induced Psychosis that existed before the trial, persist up to the present day.

D.O.’s beliefs have become, for reasons that she can probably no longer control because of her significant mental health issues and the passage of time, immovable.

[ 94 ] An extension of the PIO Order will continue to protect the child’s mental, emotional and physical health. One of the ways it will do so is to ensure that the photos, videos, questions and medical examinations about the alleged sexual abuse that were happening before the PIO Order was issued will not start up again. [ 95 ] Unfortunately, D.O.’s beliefs are contrary to the child’s mental, emotional and physical well-being. I find that the harm and trauma that comes to the child will continue unabated without the PIO Order remaining in place for the duration of time requested by the Minister. (

b) The views and preferences of the child. [ 96 ] As was the case before Justice Daigle, the specific views and preferences of the child were not before me either. This is not surprising given her age. On a positive note, the evidence does indicate that the child continues to be excited to see D.O. (

c) The effect upon the child of any disruption of the child's sense of continuity. [ 97 ] In my view, the child’s sense of continuity would be impacted negatively if the PIO Order is not continued. C.J.’s evidence, which I accept, confirms that the child continues to be cared for in the same manner that has existed since he was awarded custody in February 2020. (

d) The love, affection and ties that exist. [ 98 ] D.O. loves the child, and the child loves D.O. Reciprocal love also exists between the child and C.J. [ 99 ] D.O.’s love for the child does not however supersede the child’s best interests, nor does it explain in any convincing manner why she continues down the same path for so long. D.O.’s incessant beliefs about the abuse cannot be veiled with love because she still does not realize or accept the harm those beliefs have caused the child after 9 years. (

e) The merits of any plan proposed by the Minister under which he would be caring for the child, in comparison with the merits of the child returning to or remaining with the parents. [ 100 ] In this case, there is no plan under which the Minister would be caring for the child herself because this is not a Custody or Guardianship Application.

As I indicated above, C.J. has sole custody of the child, but D.O. continues to have a right of access pursuant to the previous Order of the Court. [ 101 ] As a result, the “plan” to continue with a PIO Order is in essence the only legal manner, at this stage, by which the Minister can assure the ongoing protection of the child, but also to satisfy her duty toward the child in accordance with the FSA . Conversely, D.O.’s plan appears to be to continue down the same path as before. D.O. testified that she would rather see the child go into foster care instead of back to C.J. I prefer the Minister’s plan. (

f) The need to provide a secure environment that would permit the child to become a useful and productive member of society through the achievement of his full potential according to his individual capacity. [ 102 ] In my view, the child is in a secure environment now. The child will be returned to the unsecure environment she was in if the PIO Order is not extended. C.J. testified that the child “continues to grow” and “continues to adjust” in the current environment. The extension of the PIO Order will have the effect of maintaining the positive status quo. (

g) The child's cultural and religious heritage. [ 103 ] D.O. has raised the argument that the PIO Order negatively impacts the child’s religious upbringing. The evidence is that the child has a Christian religious heritage. D.O. should be able to foster the child’s religious heritage during supervised visits as much as possible. C.J. is not opposed to this, nor is the Minister, if she does so in a manner that is consistent with the child’s best interests. For example, D.O. may pray with the child during supervised visits if the child agrees.

Another example is that they may also read the Bible together if they wish. To be clear, these two examples are not meant to be an exhaustive list. [ 104 ] If broader requests on this point are made, such as bringing the child to church, that will be ultimately up to C.J. to decide in consultation with the Minister. C.J. has custody or what is now referred to as decision-making responsibility over such questions. The Court cannot be involved in such day-to-day decisions regarding the child.

Conclusion on the Applicable Test [ 105 ] In this case, the Minster alleges that the security and development of the child would be in danger if unsupervised visits with D.O. are permitted to continue. The Minister relies on s. 31(1) (a), (c), (d), (e), and (

g) of the FSA , which read as follows: 31(1) The security or development of a child may be in danger when (

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

c) the child is in the care of a person who is unable or unwilling to provide adequate care, supervision or control of the child; (

d) the child is in the care of a person whose conduct endangers the life, health or emotional well-being of the child; (

e) the child is physically or sexually abused, physically or emotionally neglected, sexually exploited or in danger of such treatment; (

g) the child is in the care of a person who neglects or refuses to provide or obtain proper medical, surgical or other remedial care or treatment necessary for the health or well being of the child or refuses to permit such care or treatment to be supplied to the child; [ 106 ] I am satisfied that the child’s security and development would be endangered if the PIO Order is not extended in the circumstances of this case, especially within the meaning of s. 31(1) (a), (

c) and (

d) of the FSA . [ 107 ] I find that the Minister has met the burden of establishing on a balance of probabilities that there is a need for the PIO Order to continue and that it is in the child’s best interests to extent the PIO Order as requested: Minister of Health & Community Services) v. M. (C.) 1993 CarswellNB 406 (NBCA) . DISPOSITION [ 108 ] The Minister’s Application is allowed. The PIO Oder issued by Justice Daigle shall be extended for 12 months, with the same conditions. DATED at Saint John, New Brunswick this ______ day of January 2023. ______________________________________ Justice Danys R.X. Delaquis Judge of the Court of King’s Bench of New Brunswick - Family Division