THE MINISTER OF SOCIAL DEVELOPMENT Applicant v. A.W. and J.H., 2023 NBKB 77

FDM-192-2022 2023 NBKB 077 COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF MONCTON BETWEEN: THE MINISTER OF SOCIAL DEVELOPMENT Applicant -and- A.W. and J.H. Respondent DECISION BEFORE : Madam Justice Danie Roy AT : Moncton, NB DATE OF HEARING : March 13, 14, 15, 16, 17, 21, 24 and 29 , 2023 DATE OF DECISION : May 5 th , 2023 APPEARANCES: Stephen Diamond, for the Minister Christine Drapeau, for A.W. Martine Rousselle, for J.H. Roy, J. INTRODUCTION [ 1 ] The Minister applies for guardianship of R.W., born [..]. He is 5 years old.

R.W. has been in the minister’s care since April 14, 2021. [ 2 ] A.W. and J.H. are the biological parents of R.W. and oppose the Minister’s request for guardianship. They are separated. They present separate plans to care for R.W. but say they can work together. [ 3 ] Their relationship started around October 2014 and ended in April of 2019, after an incident of domestic violence resulting in J.H. pleading guilty to an assault charge. With the separation, J.H. also cut ties with R.W. He saw him for a brief period on his second birthday.

He next saw him through a video call on January 25, 2022, almost three years after.

[ 4 ] A.W. and J.H. also have other children with other partners, who are not part of this Application. [ 5 ] A.W. has two older children. A.W. and J.S. are the parents of L.S., born […], who is 12 years old. A.W. and R.L. are the parents of O.W., born […], who is 7 years old. Both children reside with their respective fathers and A.W. has no access or communication with either child. She last saw L.S. about 2 years ago and has not seen O.W. for about four years. [ 6 ] J.H. and S.L. are the parents of T.H. born […], who is almost two years old, and R.H., born […], who is one year old .

S.L. has an older child from a previous relationship, J.L., who is 8 years old. They all reside together as a family. [ 7 ] Protective care of R.W. was taken on April 14, 2021, when he was three years old. He was then living with A.W. and J.H. was not involved. R.W. had to be carried as he did not appear to understand the dangers of traffic or his surroundings. He lacked muscle tone, was pale with thin air, and had bruises.

A.W. denies R.W. was a neglected child and does not understand why protective care was taken. [ 8 ] R.W. has shown significant improvement in the last two years, since being in the care of the Minister. However, he continues to have high needs and requires one on one care.

Regardless, A.W. and J.H. feel they have the parenting skills to meet R.W.’s high needs. [ 9 ] The Minister’s ongoing concerns with respect to A.W. and J.H. are mental health instability, substance misuse, domestic violence and neglect. [ 10 ] I need to decide if it is in R.W.’s best interest that Guardianship be granted and if it is granted, should a right of access be preserved. BACKGROUND Procedural history [ 11 ] The Minister filed an Application for a 6-month Custody Order on April 21, 2021, and an Application for a 6-month Custody Order Extension on October 19, 2021.

A.W. and J.H. consented to both Custody Orders. [ 12 ] The Minister filed an Application for Guardianship on April 13, 2022, and requested that A.W., J.H. and R.W. submit to a psychological evaluation with a parenting capacity component. The evaluation was ordered on May 24, 2022, but was only completed in February, 2023, the report being dated February 26, 2023. January 2011 to April 2021 [ 13 ] The Minister has been involved with A.W. since January 2011, shortly after her first child was born.

For a period of 10 years, between January 5, 2011, and April 7, 2021, the Department received approximately 60 referrals. The concerns have remained the same; mental health instability, substance misuse, domestic violence and neglect. [ 14 ] The investigations that were conducted resulted in three Family Enhancement Services files between February 23, 2012 and January 30, 2018. [ 15 ] A.W. and J.H. started a relationship around October 2014, which ended in April 2019.

During their relationship, J.H. took on a parenting role with R.W. and also with A.W.’s older children. [ 16 ] R.W. was born prematurely on February 3, 2018. It was a difficult time for A.W. and J.H. They struggled financially. J.H. attempted a return to work but he was not successful. He worked three weeks at a clothing store. He also returned to work at the Westmorland Landfill where he had previously worked but he was let go as he missed too much time from work.

[ 17 ] The incident of domestic violence an April 11, 2019, was significant. J.H. attacked the family dog and when A.W. tried to protect the dog, J.H. punched her in the head and on her arm. The child, L.S., went to the neighbours’ house to ask for help. [ 18 ] J.H. pleaded guilty to an assault charge, and a no-contact order was put in place but he did not follow it. On one occasion, he told A.W. she needed to choose between her mother and him, and she chose her mother. J.H. slashed all four tires on A.W.’s mother’s vehicle.

He was on house arrest for a period of one year. [ 19 ] After they separated, J.H. did not maintain contact with R.W. and was completely absent from his life, other than a visit with R.W. on his second birthday. The separation was difficult for A.W. She said she not only lost a partner, she lost her best friend. [ 20 ] A.W. has struggled with parenting for many years. In May, 2019, a lock was observed on the child, O.W.’s, bedroom door during a home visit.

A.W. was then educated on the dangers of having a child locked in their bedroom. [ 21 ] At an unannounced visit at A.W.’s home on January 27, 2021, the social worker, Katherine Emery, observed that R.W.’s bed was in a closet and that the bed frame was bolted to the wall and it seemed like a cage situation. There was a lock on the outside of the door. She expressed her concerns to A.W., who did not take the concerns seriously and reported that she believed R.W. was autistic. [ 22 ] Protective care of R.W. was taken on April 14, 2021.

At that time, R.W.’s bed was still in a closet, in an enclosed space and his bedroom was empty. R.W. has been in the Minister’s care since then. HISTORY OF CARE OF R.W. (SINCE APRIL 14, 2021) [ 23 ] After protective care was taken, R.W. resided in a foster home for a brief period until April 28, 2021.

However, due to his high needs, he was transferred to the George Street Specialized Care Program, a group home in Fredericton on April 28, 2021 . [ 24 ] Lee Ann Tsang, the program manager says that when R.W. arrived at the group home, he was non-verbal, still in diapers, relied on the use of a soother and was still spoon fed. His skin looked translucent. He was quite shy and nervous at first. He was a flight risk and had zero sense of danger. [ 25 ] She also says that R.W. progressed quickly. On June 8, 2021, he was able to eat an entire yogurt cup on his own. At first, he was angry and he also had nightmares.

However, towards the end of his stay in the program he was able to express his anger. He potty trained quickly and he gradually built positive rapport with the staff and became a cuddly and affectionate boy. [ 26 ] On October 4, 2021, Katelyn Hawkins attended a medical appointment with R.W. She says she was impressed to see how much he had changed and developed. His hair was thicker, as were his eyelashes and eyebrows. His face had rounded out and he visibly had more muscle tone and fat on his body.

He was walking flat-footed and not on his tippy toes, and was talking, listening, calm and curious. [ 27 ] While he was there, he attended daycare at the Wee College on Mondays and Wednesdays from July 8, 2021, until September 10, 2021. He then attended the children’s academy for three days from September 21, 2021, until mid-October 2021. He was enrolled at the Early Leaning Center on November 30, 2021 and attended on Tuesdays and Thursdays until being discharged from the unit. [ 28 ] R.W. moved to Moncton approximately a year later.

After a short stay in another foster family, he went live at the Moncton Community Residences Inc. group home on October 14, 2022. This is where R.W. still resides today. [ 29 ] Janice Carter is the group home Supervisor. She describes R.W. as curious and very busy. When he first arrived, he was exploring the residence. R.W. has one on one care from 7 am to 10 pm as he needs to have someone with him when he is awake. Ms. Carter explained that he can put things into his mouth, he climbs, and can run into traffic. He started daycare on February 21, 2023 and

attends from 8 am to 12 pm where he also benefits from one-on-one care. [ 30 ] She said that R.W. needs guidance to help self regulate. One of the strategies that R.W. uses to self regulate is to take a bath. A routine is helpful. R.W. does best when he has a social story ahead of time so he knows what the expectation is. For example, they tell him: we will go for a walk, we will hold hands, we will stop at a stop sign. He is getting better at communicating. [ 31 ] She also explains they only advise R.W. the morning of a visit with his parents, after it is confirmed, as visits get cancelled at the last minute.

R.W. is not happy or sad, but glad to know that he is going to a visit. However, when he returns, sometimes his mood is very elevated and he is distracted, dysregulated and has a hard time to focus or settle. Ms. Carter was unable to confirm if this was after a visit with A.W. or J.H. R.W.’s visits with A.W. [ 32 ] A.W. did video calls and in-person visits with R.W. when he was at the group home in Fredericton. After a few months, transportation was arranged for R.W. to travel to Moncton for visits.

Travelling was difficult for R.W. and unfortunately, it happened that he made the commute from Fredericton to Moncton for a visit with A.W., which she cancelled shortly before he arrived. [ 33 ] A.W. has supervised visits with R.W. in her home. The visits are supervised by Co-Aide Home Care & Support Services. Dominique Gaudet, who is employed by Co-Aide, has supervised visits. She described R.W. as being very active, and very curious. She said that you would always have to have your eyes on R.W. to ensure his safety. When she would get up to follow R.W., A.W. would follow but she would never initiate the action.

R.W. rocks back and forth but she does not know what the trigger is. [ 34 ] A.W. says that she is always there, close by to R.W. [ 35 ] She also says that R.W. is happy to see A.W. when they arrive. Sometimes he runs into the house, sometimes he hugs A.W., and sometimes he tells her he loves her. He seems to be comfortable in the house. [ 36 ] However, on some of the visits, A.W. would get emotional and R.W. would see her cry. She says that A.W. can struggle with trying to multitask and managing situations.

At the visit of December 7, 2022, A.W. ordered McDonald’s and, once the food arrived, she realized that there was a mix up with the order. She became agitated very quickly, panicked and started to cry. At that visit, R.W. rocked back and forth severely. [ 37 ] At the visit of January 31, 2023, R.W. was rocking more than usual. Again, A.W. became agitated as R.W. rocked. Again, the visit ended early on that day. [ 38 ] At the visit of February 2, 2023, R.W. who was playing, grabbed a sex toy.

When A.W. testified, she dismissed the concern and said the toy was clean and they washed R.W.’s hands afterwards. [ 39 ] Carolyne Duguay also supervised visits. At the visit of November 21, 2022, she followed R.W. into his bedroom upstairs. A.W. followed, inquiring why Ms. Duguay was not following the new rules . She spoke loudly. Ms. Duguay says that R.W. rocked more rapidly as A.W.’s voice escalated. The visit ended early that day. As they were leaving, Ms. Duguay could hear A.W. yelling. [ 40 ] A.W. says Ms. Duguay wanted her to go with R.W. in his room.

A.W. was trying to explain to her that sometimes R.W. likes to play alone and sometimes he needs a couple of minutes to himself. A.W. says she gave R.W. four minutes as he would often request it. In a course, she learned that it was OK for him to spend some time alone. Ms. Duguay called Nicole at Co-Aide while she was trying to explain herself. Ms. Duguay would not listen to her and that made her upset. A.W. says she was not yelling; she was just getting emotional. To her, it seemed that Ms. Duguay was purposefully provoking her. She felt Ms.

Duguay was mocking her. [ 41 ] A.W. adds that she wanted R.W. to have his space as he has started to do private things. She says he is learning his body; he was rubbing and it felt good, and it is perfectly normal. She wanted to respect his privacy. R.W. was then only four years old. [ 42 ] She believes that R.W. was crying as he didn’t want to leave. She also says that R.W. started to rock, which she says is a self-soothing mechanism, and she broke down.

[ 43 ] C.C., the mother of A.W.’s partner, who was downstairs, testified that she heard a disagreement between A.W. and the support worker. She supported A.W.’s version and said it felt the support worker was mocking her when she was trying to explain her point of view. However, she says R.W. came downstairs and he kept apologizing, was upset and was crying. [ 44 ] Following this incident, A.W. asked that Ms. Duguay, the support worker, no longer be allowed in her home due to having stressed out C.C.

This resulted in the Monday visits to be cancelled until a new support worker could be scheduled. [ 45 ] Nicole Owens is the Client Services Coordinator for Co-Aide. She reviewed the observation reports from the visits. She testified at trial with respect to A.W.’s attendance at visits and also provided a report. She provided the following

summary between January 2022 and February 15, 2023: January 2022 : A.W. attended 3 of her 9 scheduled supervised visits. 1 visit was cancelled by the family support worker and the remaining were cancelled by A.W. for reasons including being sick or not feeling well, not ready for the visit, stuck in Halifax, and not confirming her visit. A condition was put in place where A.W. needed to confirm her visit 24 hours in advance.

February 2022 : A.W. attended 4 of her 8 scheduled visits. 3 visits were cancelled as a result of A.W. refusing a covid rapid test and 1 visit was cancelled by A.W. as there was a replacement family support worker assigned to that visit. A.W. also ended 1 visit early. March 2022 : A.W. attended 2 of her 10 scheduled visits. 3 visits were cancelled due to family support worker cancellation/unavailability, 1 was due to R.W.’s refusal to get in the car at pick up and the remaining 4 were cancelled for reasons including A.W. being sick and not confirming the visit in advance.

April 2022 : A.W. attended 4 of her 7 scheduled visits. A.W. did not confirm 1 visit and cancelled the other 2 as she was sick and had fallen down the stairs. Of the 4 visits A.W. attended, she ended 2 of them 1.5 hours early. May 2022 : A.W. attended 7 of her 9 scheduled visits. 1 visit was cancelled by the family support worker and the other A.W. did not confirm. Of the 7 visits A.W. attended, she ended 4 of them early; two were ended 1 hour early, one was ended 2.5 hours early and one was ended 3 hours early June 2022 : A.W. attended 5 of her 9 scheduled visits.

A.W. did not confirm 2 visits, cancelled 1 as she had a dentist appointment and 1 was cancelled as R.W. was sick. A.W. ended 1 visit 2 hours early. July 2022 : A.W. attended 4 of her 8 scheduled visits. A.W. cancelled 2 visits (sick, no reason noted), the family support worker cancelled 1 and R.W. refused to go to 1. Of the 4 A.W. attended, she ended 3 of them early; she was anxious/R.W. was not listening, she had a bad burn that she felt needed medical attention and she said R.W. needed to see a doctor. August 2022 : A.W. attended 7 of her 11 scheduled visits.

A.W. did not confirm 1 visit, cancelled 2 (sick, no reason noted) and R.W.’s group home cancelled 1 due to covid. September 2022 : A.W. attended 4 of the 15 scheduled visits. The family support worker cancelled 1 and A.W. cancelled the remaining 10 due to not confirming, her anxiety and covid. October 2022 : A.W. attended 3 of her 19 scheduled visits. A.W. moved and her new apartment had not been approved for the first 13 scheduled visits. A.W. did not have a visit with R.W. from September 19 th to October 24 th . Once her residence was approved, the first visit was on October 24 th .

She then cancelled 3 visits due to being sick and dental issues. November 2022 : A.W. attended 12 of her 20 scheduled visits. A.W. cancelled 7 visits for reasons including dental issues, having things to do, being sick and declining J.H.’s time. 1 visit was scheduled to occur with a replacement family support worker, but A.W. declined. A.W. ended 6 of her 11 attended visits early by at least 30 minutes and 1 visit was terminated by the family support worker

due to A.W.’s inability to regulate her emotions. December 2022 : A.W. cancelled 9 out of 18 scheduled visits for being ill, appointments and having fallen down the stairs. She also ended 3 visits early, and one visit was cancelled by the support worker. On December 1, A.W. declined to have J.H.’s visitation time. January 2023 : A.W. cancelled 8 out of 18 scheduled visits for being sick, having an appointment and having no power. She also ended 2 visits early for R.W.’s behaviour, he was rocking, and 1 for the possibility of losing power. On January 19, A.W. could not be reached to be given J.H.’s time.

February 2023 : From February 1, 2023 to February 15, 2023, A.W. cancelled 3 out of 10 scheduled visits. One was cancelled due to poor whether conditions, and one was cancelled by the support worker. A.W. ended 2 visits early. R.W.’s visits with J.H. [ 46 ] After J.H. and A.W.’s relationship ended in April 2019, J.H. was no longer involved with R.W. He was absent from his life for almost three years, except for a short visit on R.W.’s second birthday.

The next time he saw R.W. was by a video call on January 25, 2022. [ 47 ] When protective care was taken, J.H. did not have suitable housing arrangements and he felt it was better for R.W. to only have him back in his life once his situation had improved. Unfortunately, that took a few years. [ 48 ] In July 2021, J.H. was offered bus passes to visit R.W. in Fredericton, but he would have preferred gas money. He was supposed to follow up with the social worker to respond to her offer, but never did.

He says he did not have a phone and was unable to reach her. [ 49 ] Although J.H. had video calls with R.W. starting in January 2022, they were not consistent. He did not have internet and needed to go to his brother’s home to make the calls. Some of the calls would last 3 minutes and some would last 15 minutes. J.H. said he thought it was a waste of time because he had to go to his brother’s house and may only see R.W. for three minutes. [ 50 ] J.H.’s in person supervised visits started in the spring of 2022 in his home. At first, J.H. would have a one hour visit every Monday.

Then, after a few weeks, his visits increased from 9 am to 11:30 am. When R.W. moved to Moncton in November of 2022, his visits increased to two days a week. Still, when the in-person visits started, J.H. preferred to stop the video calls. [ 51 ] Carolyne Duguay, who supervised visits, said that dirty dishes, crumbs on the floor, cluttered counters and toys everywhere were a regular occurrence. However, J.H. was attentive to R.W. during the visits, and she saw positive interactions between them. [ 52 ] Dominique Gaudet also supervised visits. She says that J.H.’s partner, S.L., attends most of the visits.

However, she has her daughter in her arms and stays in front of the TV. She describes that she looks exhausted and indifferent. S.L. has an older child and J.H. and S.L. have two children together. Even though S.L. is there, J.H. also helps take care of the other three children as well. [ 53 ] At the visit of October 13, 2022, Ms. Gaudet had to use the washroom and noticed the smell of urine and that the toilet was very filthy but she noted it was clean in subsequent visits.

At that visit, S.L. did not acknowledge or speak to R.W. [ 54 ] At the visits of October 19, 2022, and November 30, 2022, R.W. asked to leave early, and when that happens, Ms. Gaudet says J.H. does not want to force him to stay. The visit of January 12, 2023 ended 40 minutes early as R.W. had an accident in his clothes and J.H. did not have a change of clothes. J.H. acknowledges he does not have clothes for R.W. but simply says he will if he is in his full-time care. [ 55 ] Ms. Gaudet acknowledges that J.H. and R.W. play during the visits.

She says J.H. interacts well with R.W. and there is no need for her to intervene. J.L., S.L.’s son, and R.W. also play during the visits. R.W. is very excited to walk to school to get J.L. and is

excited to see him. [ 56 ] Nicole Owens provided a

summary of J.H.’s attendance at visits between April, 2022 and February 13, 2023. J.H. has cancelled visits and ended visits early. Some of the unattended visits were scheduled for A.W. and, following her cancellation, J.H. was offered the visits. He accepted only some of the additional visits. Ms. Owens provided this

summary: April 2022 : J.H. attended his 2 scheduled visits. May 2022 : J.H. attended his 4 scheduled visits. June 2022 : J.H. attended 5 of his 7 scheduled visits. One visit was cancelled due to R.W. being sick and the other was cancelled as J.H. tested positive for covid. July 2022 : J.H. attended 5 of his 8 scheduled visits. 2 were cancelled by J.H. without reason and the remaining visit was cancelled by the family support worker. August 2022 : J.H. attended 6 of his 9 scheduled visits. 1 visit was cancelled by R.W.’s group home, and the remaining 2 were cancelled and/or declined by J.H.

September 2022 : J.H. attended 4 of his 10 scheduled visits. 2 were cancelled by the family support worker and the remaining 4 were cancelled, a no show and J.H. not being reachable to be given/declining A.W.’s visit time. October 2022 : J.H. attended 5 of his 10 scheduled visits. The visits that were offered to him were A.W.’s visits. November 2022 : J.H. attended 6 of his 14 scheduled visits. J.H. cancelled 3 visits, 2 due to being sick and 1 without reason and, for the remaining 5 visits, J.H. either declined or was unreachable for A.W.’s time.

December 2022 : Out of the 14 scheduled visits, J.H. cancelled 2 visits, declined 1 and was unreachable once for A.W.’s time, accepted 3 of A.W.’s visits and the support worker cancelled twice. January 2023 : Out of the 14 visits, J.H. cancelled 2 visits, 3 visits were cancelled due to poor weather conditions, and J.H. accepted 2 out of 5 offers for A.W.’s time. J.H. also did not present himself to one visit because of tooth pain. February 2023 : Between February 2, 2023 and February 13, 2023, there were 4 visits scheduled. J.H. attended all those visits except for 1, which was cancelled by the support worker.

PARENTING SKILLS AND NEGLECT Psychological parenting capacity report [ 57 ] Robert F. Doucet prepared a psychological parenting capacity report, which is dated February 26, 2023, pursuant to an Order of this Court. Mr. Doucet was qualified as an expert in clinical psychology and parenting capacity assessment and testified in that capacity. [ 58 ] In order to prepare his report, Mr. Doucet used the following method of assessment: Assessment of A.W.

• Clinical interview on February 3, 2023; • Test administered: Millon Clinical Multiaxial Inventory-IV on February 3, 2023; • Observation of mother-child interaction on February 3, 2023. Assessment of J.H. • Clinical interview on February 9, 2023; • Test administered: Millon Clinical Multiaxial Inventory-IV on February 9, 2023; • Observation of father-child interaction on February 9, 2023. Telephone interview with Ellen McNeil, parenting coordinator on February 20 th 2023 Review of court file documents [ 59 ] Mr. Doucet testified he was satisfied with the validity of the test administered for both A.W. and J.H.

The Millon Clinical Multiaxial Inventory-IV is a test which measures various personality traits and disorders. He did not administer an intelligence test to either parent as he did not see the need and was satisfied that both parents are intelligent. [ 60 ] In Mr. Doucet’s opinion, the following diagnosis should be considered with respect to A.W.; major depression, post-traumatic stress disorder and adjustment disorder with mixed anxiety and depression.

He says the following personality traits are probable: compulsive personality, avoidant personality, paranoid personality and negativistic personality type. [ 61 ] With respect to J.H., he is of the opinion that the potential diagnoses to consider include bipolar disorder and adjustment disorder with anxiety. He also suggests the following personality traits: antisocial personality type, borderline personality type and negativistic personality style. [ 62 ] In the context of visits, he observed the interactions between R.W. and his parents.

He observed that A.W. appeared to be attentive to R.W.’s needs and noted no major concerns except that, when it was time to leave, she seemed to be unable to get R.W. prepared on time. A.W. appeared flustered and not knowing how to proceed. [ 63 ] He also observed the interaction between R.W. and J.H. Overall, he observed that J.H. was animated and paying attention not only to R.W. but to the other children as well. From what he observed, he considered the relationship between J.H. and S.L. and tried to project what it would be if R.W. was there full time.

He noted that J.H.’s borderline personality traits are closely related to a bipolar disorder and it could be a roller coaster of emotions. At times it can go quite well and, at other times, it takes on a life of his own. This can interfere with parenting. He said his biggest concern is J.H.’s capacity over time to meet the needs of R.W. J.H. has personal struggles of his own which can affect parenting. [ 64 ] Mr.

Doucet opined as follows: A.W. who presents as an intelligent young woman has faced significant challenges in her family of origin which has included sexual abuse, an unstable relationship with her mother, mental health problems and later on complicated relationships with the partners of her two eldest children as well as with R.W.’s father, J.H. The past trauma she has experienced has contributed to mental health and personality issues making it that much more difficult to maintain stability in her present life.

Her past relationships were tainted with reports of domestic violence and ultimately the loss of custody of her two eldest children. As mentioned above A.W. has struggled to maintain her mental health stability throughout the years, is quite sensitive to criticism and has had a tendency to deny her involvement in what has been described as neglect of the needs of R.W. in his early upbringing. Since R.W. has been in care, A.W. has missed many visits with R.W. including phone calls either with excuses of being sick or not available.

This has caused a lack of consistency and predictability in this young child’s life and has made it more difficult for the Department of Social Development to work towards reunification of mother and child. Although I have no doubt as to A.W.’s wish to be reunited with R.W., her performance towards the

goal of reunification has been weak in that regard. This level of inconsistency has been noted with other service providers as well. A.W.’s high response of emotional reactivity makes it that much harder to present a stable family environment which would be conducive to a more strong parenting response towards R.W.

A.W. believes that if R.W. was in her care, everything would be fine and she would be able to achieve a better stability however I have doubts as to her ability to do this based on her own past performance of having significant difficulties with anxiety, being easily triggered by novel experiences and generally showing behaviour that does not suggest a stable family environment for a young boy with special needs.

A tendency to feel overwhelmed emotionally and psychologically has no doubt contributed to the multiple missed visits and A.W. has sought to deflect by providing many excuses or accusing others for the missed visits. Due to her emotional baggage and fear of criticism she has great difficulty to acknowledge her role in the difficulties mentioned above. Concerning J.H., he presents as an intelligent young man who has a present family environment which demands much attention and would be that much more complicated if R.W. were to be living full time with his father.

J.H. acknowledges having mood variability with difficulties in organization and planning. He also recognizes that he has a two-year-old who presents with sensory type difficulties and will most probably need attention from several service providers as he continues to mature. J.H.’s own difficulties within this family unit have been reported elsewhere including the possibility of family violence. He is with a partner whom I was not able to fully assess and either is a very reserved type of partner or has some other mental health challenges of which I am unaware.

This presents J.H. with some significant challenges if R.W. was to reside with them as what I have witnessed is a very limited involvement of J.H.’s partner towards R.W. It may be that they have three other children that they have to deal with and that S.L. does not have the energy or the motivation to take on another child or there may be other contributing factors of which I am unaware. As well, J.H. has been somewhat slow to show interest and become more involved with respect to attending visits with R.W. and furthermore on some of the visits, they are described as being quite short.

I understand J.H.’s desire to be more involved in R.W.’s life and to present what he would see has a strong father model however he presents with challenges which may not meet R.W.’s needs at the present time. R.W. is a young five-year-old boy who presents with special needs and who has shown, according to reports, great improvement while being in care over the past year and a half to two years. Although he was described as being quite delayed both emotionally, psychologically and physically when taken into care, it appears that he has since improved significantly and is doing much better.

He is however a child which will continue to require services as he approaches entering the school system. His parenting environment needs to reflect consistency and predictability for him to thrive. His present environment has consisted of these basic parenting behaviours. Each of the parents in my opinion is not in a position to present an environment which would be as predictable or as consistent as compared to R.W.’s present living conditions.

Although each of the parents are well intentioned, cooperated well during this assessment, are able to present a pleasant demeanour, are able to show some parenting skills, they ultimately lack the skills of being able to attend to all of R.W.’s needs and provide him with an opportunity to grow both emotionally, psychologically and physically.

I do not believe that allowing the parents more time in this matter would result in a resolution of their presenting problems… Protective care [ 65 ] The Minister received referrals on April 7, 2021, and April 9, 2021, with concerns of neglect, emotional abuse and also that A.W. was producing pornography in the presence of her children. One of the concerns reported was the R.W. was being strapped in his highchair for long periods of time. [ 66 ] On April 13, 2021, Katelyn Hawkins, a child protection social worker and a colleague, Gabrielle Drapeau, attended A.W.’s home.

A.W. was very emotional and refused to engage in services. [ 67 ] Katelyn Hawkins said she could hear excessive banging coming from upstairs, where R.W.’s bedroom was located. When she reached his bedroom, she observed the room to be empty. There was a mattress in the closet and the closet had a wood futon box covering, like a door. The futon box was folded into two pieces; one piece was screwed into the wall, the other had a cord attached to prevent it from opening. R.W. was standing in the enclosed area. She also observed an alarm on the bedroom door and an Alexa unit was plugged into an outlet.

When she left to go call her supervisor, A.W. put R.W. back in the closet, despite his crying and kicking. The futon base was closed and attached to the wall with a cord, and then the bedroom door was closed. [ 68 ] Katelyn Hawkins returned to A.W.’s home the following day, on April 14, 2021. A small bed had been put in R.W.’s bedroom. However, A.W.’s room was in a disarray and drug paraphernalia was easily accessible to the children. In L.S.’s room (R.W.’s sibling), there was garbage, a broken play pen and a smashed television on the floor.

The bathroom was in the same condition. [ 69 ] A.W. appeared unstable and unable to care for a child and she was asking that her children be taken into care without being

able to identify an alternative solution for R.W. As there were no other options, Protective Care of R.W. was taken on that day. [ 70 ] R.W. had to be carried as he did not appear to understand the dangers of traffic or his surroundings. He seemed to only walk on his tippy toes. He had a black eye, bruises on his cheeks, bruises on his arms, elbows and ribs, legs, and other parts of his body. He had open sores along his buttocks, and he was pale with thin hair.

His muscle mass and body felt comparable to that of a young baby. [ 71 ] A.W. says R.W. was not upstairs at the visit of April 13, 2021 when social workers were at her home. She says that R.W. was downstairs with her the entire time. [ 72 ] However, A.W., acknowledges R.W.’s bed was in the closet, that he slept there and also that his bedroom was empty. She blames her partner at the time, N.B. and says she was the victim of domestic violence. She was scared of him.

She says that when N.B. was not there, she ran to the neighbours to ask them for help to remove the bed from the wall. [ 73 ] She also wanted to explain the layout of R.W.’s bedroom and the bed in the closet. She said there was a hook but there was also an alarm. R.W. was an infant and she was also caring for her other son, O.W. She put an alarm because if someone would open the door, she would know. R.W.’s bedroom was empty because otherwise it would be covered in feces.

She needed him to focus on sleeping as he always had trouble sleeping. [ 74 ] She added she did the best she could to keep him safe and also said that R.W. is strange and does weird things to get people’s attention. Parenting [ 75 ] A.W. acknowledges she needed help and that the Covid 19 pandemic was hard. They stayed inside and, at times, she felt trapped. She kept her son, L.S., home and did not send him to school and simply explains that he asked to stay home. [ 76 ] A.W. has difficulty with basic parenting skills.

She is sometimes inappropriately dressed when meeting with support workers or the social worker, such as wearing a short nightdress or being in lingerie and a short silk robe. [ 77 ] Her home has been reported as being in a general state of disorganization with the smell of marijuana. She has had to be reminded to clean bird droppings inside the house, to remove garbage, and that she cannot leave paraphernalia around when R.W. comes for a visit. [ 78 ] A.W. says the home is appropriate for a child. There may be clutter, the laundry may not be done because they were busy, and maybe there are dirty dishes.

She adds she is an OCD cleaner . She scrubbed the house with bleach when they moved in and they also hired professionals to clean when C.C., with whom she shares the home, was in the hospital . She remembers there was one rodent this past winter and they caught him and that was an exciting moment. [ 79 ] C.C. testified that she has been trying to keep the house clean and thought the house was clean enough. She says it hurt her feelings to have reports that that house was not clean enough. [ 80 ] Ellen MacNeil is a family support worker employed by Co-Aide Home Care and Support Services Ltd.

She has been providing parenting support sessions for A.W. Of the 71 scheduled parenting sessions between June 8, 2021, and September 20, 2022, A.W. attended approximately 25 sessions. Between October 4, 2022, and January 4, 2023, there were 13 parenting sessions scheduled. Of those sessions, 6 were cancelled by A.W., 2 were late cancellations and 4 were cancelled when Ellen MacNeil arrived. Between January 4, 2023, and February 28, 2023, A.W. cancelled 3 sessions. Ms.

MacNeil says that, when A.W. attends sessions, she requires redirection to discuss parenting as she would often lack concentration and change the subjects sporadically. [ 81 ] A.W. does not feel she benefited from the parenting sessions with Ms. MacNeil . She says that many of the sessions were

under 20 minutes and Ms. MacNeil would not offer her much more than readings and they talked about boundaries. [ 82 ] A.W. acknowledges she often cancelled but she felt she was not heard by Ms. MacNeil and the concerns she was bringing up were not addressed. She adds that R.W. was living in Fredericton and she says there was not much they could do. She says she is a self- learner and learned from her mistake and from her own research. She does not believe a classroom setting is a good fit for her. [ 83 ] J.H. was not involved in R.W.’s life for almost three years.

After his relationship with A.W. ended, she was sending him pictures and videos of R.W. but he said it was hurting more than being helpful and he decided not to engage. [ 84 ] J.H. asked for visits with R.W. in July 2021. At that time, R.W. was living in Fredericton. Katelyn Hawkins offered him video calls with R.W. and also offered to pay for his bus fare to visit him in Fredericton. However, he preferred gas money and Ms. Hawkins told him she was not able to do that. J.H. then told her he would get back to her regarding the bus option.

Unfortunately, he did not follow up with her. [ 85 ] J.H.’s first video call with R.W. was on January 25 2022 but the calls were not consistent. He thought it was a waste of time as he had to go to his brother’s house for the call because he did not have internet and sometimes only saw R.W. for three minutes. [ 86 ] J.H.’s supervised visits with R.W. go well; they interact and play. There are, however, concerns with respect to appropriate routine and cleanliness of the house. Also, J.H.’s partner, S.L., is not engaged and does not interact with R.W.

J.H. is left to care for R.W. and the other children, which he finds difficult. He is unable to provided structure. [ 87 ] J.H. acknowledges the children are missing school because of other appointments. He did not take J.L. to school when he slept in. He also reported he was unable to bring a child to school while pushing a stroller and taking care of the other children. In December, 2022 and in January, 2023, Ms. Hawkins expressed concerns to him that he was not taking J.L. to school. [ 88 ] J.H. is also not consistent with visits.

He cancelled a visit because he was sick, even though his partner, S.L., was there. J.H. does acknowledge S.L. shows a flat affect lately and has shown limited involvement towards R.W. when the support workers are there. [ 89 ] J.H. recognizes that he has another child, who is two years old, who presents with sensory type difficulties. He does acknowledge that, when R.W. is there, it affects the atmosphere in the room. He described it as heightened. [ 90 ] J.H.’s partner, S.L., was admitted to the hospital for post-partum. She was hospitalized for three weeks.

J.H. had the four children and he says the visits with R.W. were more difficult. He could not give his attention 100% to R.W. He added that, as long as he could hear the children, he did not necessarily need to see them. [ 91 ] Katelyn Hawkins made a visit to J.H.’s home on February 27, 2023. She described it was an unpleasant visit. R.W. was rocking excessively. S.L. was sitting on the couch and not engaging. She was moving with the couch. There was a strong smell in the home, a mixture of smoke, body odour and old food. The floor was dirty with old food and toys.

The kitchen was filthy with overflowing dishes and old food. The basement was also in disarray. In the basement, there were propane tanks, knives, garbage bags, and she says it was a mess. She advised J.H. the home condition was unacceptable, needed to be cleaned and that it was neglect. J.H. told her if she wanted the house cleaned, she could do it herself. She described that J.H. escalated and was yelling at her. R.W. was within ear shot. J.H. acknowledges he was frustrated but denies anger. [ 92 ] Ellen MacNeil has also been working with J.H. on parenting since early February 2023.

Thus far, they have addressed house cleaning, getting the oldest child to school, as well as appropriate age expectations, staying calm and positive parenting. Ms. MacNeil says that J.H.’s partner, S.L., does not engage in the sessions. [ 93 ] S.L. testified. She is a stay-at-home parent. She said that J.H. and R.W. seem to like each other. She has observed them playing together and having fun together. She says that R.W. does not mind the other children or reacts to them the same way as he does for J.L. but adds that R.W. is in his own world.

MENTAL HEALTH A.W. [ 94 ] A.W. says that, for the first time in her life, she is stable. She concedes her mental health is an 8 out of 10 (10 being the worst) during supervised visits with R.W. She blames the support workers because she feels judged by them. [ 95 ] A.W. describes numerous medical concerns, including generalized anxiety disorder, which she says causes her difficulty to make appointments because she struggles to write down the proper date or accidentally writes it wrong because of dissociation.

She has complex post-traumatic stress disorder, attention deficit hyperactivity disorder, with her mind always racing, and fibromyalgia, where her body is always in pain. She says Dr. Jerome Doucet is treating her fibromyalgia with methadone. She is prescribed medications, including one for her chronic pain, depression and anxiety, which she says is under control. Also, she says she may have obsessive- compulsive disorder. [ 96 ] C.C. says that A.W. does not seem to be as anxious today as when they first met. A.W. has done a lot of reading on mental health and took online courses, and it helped her.

She says that A.W. is scared to be judged as a parent. J.C., A.W.’s partner, also says he saw an improvement in A.W.’s health in the last two years. [ 97 ] A.W. says that on a go forward basis she will self-refer for services as she had done when she was a teenager. She would like to be matched with a therapist she feels comfortable talking to. She will continue to see Dr. Jerome Doucet, who is a psychiatrist, and follow all of his recommendations. [ 98 ] Unfortunately, A.W. has not followed through on services offered by the Minister to date.

She says it is because the services were inadequate and they should have adapted to her and to her condition with anxiety, ADHD, and PTSD. She feels the support workers were not properly trained. She also blames social worker Katelyn Hawkins and says she was interrupting, rude, and that she is power hungry and a tyrant.

A.W. says she felt punished when she made a mistake. [ 99 ] Rachel MacLeod is a counsellor with Addiction & Mental Health Services through the Horizon Health Network and was assigned to work with A.W. on October 4, 2021, for individual counselling. [ 100 ] A.W. attended only 7 out of the 19 sessions.

The reasons provided for the missed sessions were having an unspecified emergency, having the stomach flu, not having internet connection for virtual appointments, thinking her appointment was on a different day, thinking her appointment was at a different time, zoom link not working, emergency appointment with her psychiatrist, issues with the online calendar on the cell phone, having a scheduling conflict with her parenting sessions, and a medical appointment due to tooth pain. She also asked to reschedule without a reason. Ms.

MacLeod notes that, although in-person and telephone sessions were offered with transportation included, A.W. declined. [ 101 ] Rachel MacLeod described that A.W. showed a lack of engagement and a lack of progress as she would dominate the conversation. She said it was not a two-way dialogue. She does acknowledge that A.W. worked on anxiety and stress management skills and also completed the Taking Charge program. [ 102 ] A.W. dismisses the concerns raised by Ms. MacLeod. She felt it was not real therapy because the social worker would have access to the reports. She feels Ms.

MacLeod acted quick with her and did not want to work on issues that she brought up. She says if she dominated the conversation, it was because she had a lot of questions. [ 103 ] A.W. was assigned to social worker Manuel Reyes through Addiction & Mental Health Services but she also did not engage in these services. She says he was a man, he was foreign and he was quick with her and very rude. She felt uncomfortable and could hardly understand his accent. She adds she did not want to start therapy before the trial.

J.H. [ 104 ] J.H. acknowledges that he has struggled with mental health in the past but says that lately, he does not have difficulty regulating his emotions. He also acknowledges that at first, he denied services that were offered to him but adds he self-referred. There are some periods that he will get frustrated but believes he is easily brought back. He does not identify as a person with anxiety and is not taking any medication for anxiety. He takes medication for his ADHD. [ 105 ] Still, he acknowledges a routine of ups and downs but feels his mental health is in check .

He agrees he discussed mood variability with Mr. Robert Doucet, but now says he did not word it properly. [ 106 ] He sees Dr. Jerome Doucet, a psychiatrist. He says that previously he would make decisions that a person in his right mind would not make but now, there are no instances of violence or aggression. He admits he becomes frustrated but denies anger. [ 107 ] J.H. says he has not read Mr. Robert Doucet’s report. Still, he says he does not see how Mr.

Doucet can have concerns regarding structure and routine after spending only two hours with him and administrating the personality test as well as attending a one- hour visit with him and R.W. He also explains that he was in the kitchen with R.W. and J.L. while S.L. was sitting in the living room with the baby. There was no need for him and R.W. to go to the living room to interact with S.L. DOMESTIC VIOLENCE [ 108 ] A.W.’s past relationships involved domestic violence, including her relationship with J.H.

Although J.H. first denied being abusive physically and emotionally, on cross-examination, he said it was not unprovoked and he was not trying to be abusive on purpose. He does admit to the incident of domestic violence in April 2019. He pleaded guilty to an assault charge. [ 109 ] The Minister has also been involved with J.H. and S.L. as a family unit. Following concerns received in April 2021 for emotional and physical abuse, a risk assessment noted the family as high risk.

As the allegation of physical abuse was unsupported and the allegation of emotional abuse was inconclusive, the file was closed at the investigation level. SUBSTANCE MISUSE [ 110 ] A.W. reports being sober for a few years. She is on the methadone program with Dr. Jerome Doucet but says it’s to treat her fibromyalgia. She uses marijuana in therapeutic, small doses, which helps with depression. She pre-packs her "pipe" to have a puff when R.W. is present. She says Dr. Doucet told her it might be a good thing to try a micro dose, although it is not prescribed.

She also purchased "a" mushroom online that is supposed to regenerate your brain. [ 111 ] J.H. admits to having taken illicit drugs and experimented with stimulant drugs. D uring his relationship with A.W., she suggested for him to take some of her medications, and he did. A.W. said it was a safe medication and it was a mood stabilizer but also says it resulted in J.H. using again. [ 112 ] On October 18, 2022, J.H. agreed to drug testing and a referral was sent. The first attempt at collecting a sample from J.H. was on March 6, 2023. It was impossible on that day to collect a sample as he had already urinated.

ISSUES [ 113 ] Is it in R.W.’s best interests that the Minister be granted guardianship of him? If guardianship is granted, then I need to decide if a right of access should be preserved for R.W. with his parents and siblings. LAW AND ANALYSIS

[114] Pursuant to subsection 56(1) of the Family Services Act, S.N.B. 1980, c. F-2.2, the court may make a guardianship ordertransferring from a parent to the Minister on a permanent basis, the guardianship of a child, including the custody, care and control of,and all parental rights and responsibilities with respect to the child. [115] I need to place above all other considerations the best interests of the child pursuant to subsection 53(2) of the Act. The bestinterest of the child is the only criteria to be considered. (see: C(V.) v.

New Brunswick (Minister of Social Development), 2015 NBCA28 and New Brunswick (Minister of Social Development) v. C.(J.R.), 2011 NBQB 355) [116] The custody of a child is not a form of reward or punishment for a parent. (see: P.R.H. v. M.E.L. 2009 NBCA 18 atparagraph 29) [117] I must take a child-centred focus approach. The best interest must be examined from the standpoint of the child and not fromthe standpoint of the parents. (New Brunswick (Health and Community Services) v. M.P., , NBCA; NewBrunswick (Minister of Family and Community Services) c. B.B. and C.S., . [118] The best interests is defined in

section 1 of the Act : "best interests of the child' means the best interests of the child under the circumstances taking into consideration: (

a) the mental, emotional and physical health of the child and his need for appropriate care or treatment, or both; (

b) the views and preferences of the child, where such views and preferences can be reasonably ascertained; (

c) the effect upon the child of any disruption of the child's sense of continuity; (

d) the love, affection and ties that exist between the child and each person to whom the child's custody is entrusted, each person towhom access to the child is granted and, where appropriate, each sibling of the child; (

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 thechild returning to or remaining with his parents; (

f) the need to provide a secure environment that would permit the child to become a useful and productive member of societythrough the achievement of his full potential according to his individual capacity; and (

g) the child's cultural and religious heritage. The position of the Minister [119] The Minister’s ongoing concerns include mental health instability, substance misuse, domestic violence and neglect. [120] Social worker Katelyn Hawkins prepared a case plan on April 13, 2022, where she enumerates the following objectives: Objective 1: R.W. will reside in a safe environment that will offer structure and support, ensuring all his needs will be met.

Objective 2: The relationship between R.W. and mother, A.W. will be maintained. Objective 3: A.W. will acquire knowledge to understand the effects of exposure to family violence and instability has on her child. Objective 4: A.W. will provide a safe living environment where all R.W.’s needs will be met. Objective 5: A.W. will acquire knowledge pertaining to parenting skills and apply what she has learned. Objective 6: A.W.’s mental health and addictions will be assessed, and services will be implemented accordingly.

Objective 7: J.H.’s situation will be evaluated, and services will be implemented according to his needs. Objective 8: The needs of the W./H. family will be assessed, and services will be implemented accordingly. The position of A.W. [ 121 ] A.W. requests that R.W. be returned to her care. She denies R.W. was neglected and does not understand why he was taken into protective care. She is prepared to consent to a supervisory order. Alternatively, she requests that a right of access be preserved. [ 122 ] She asks that not much weight be given to Mr.

Doucet’s report because she says she has an obsessive-compulsive disorder and attention deficit hyperactivity disorder and he did not identify those disorders in his report. I disagree. Firstly, what Mr. Doucet did is identify diagnoses that should be considered and personality traits that are probable. The reason for referral was a psychological parenting capacity assessment, nothing more. Furthermore, A.W. did not present any medical evidence with respect to all of her diagnoses. I have not found her to be credible in this respect. I have found her testimony to be self-serving. She relied heavily on Dr.

Jerome Doucet, her current psychiatrist. She says she is doing well, she sees him every month, he prescribes methadone for her fibromyalgia and that he approved marijuana for her anxiety which she uses during visits with R.W. However, Dr. Doucet did not testify. A.W. did not bring forward any evidence to substantiate her testimony of various medical conditions. The position of J.H. [ 123 ] J.H. requests that R.W. be returned to his care and that it is in R.W.’s best interest that guardianship not be granted. He says that R.W. was under the care of A.W. when he was apprehended and he is able to care for R.W.

He participated in the psychological evaluation and parental capacity assessment and says that he is working with the social workers and collaborating with respect to their concerns.

Best interest analysis [ 124 ] I now turn to the best interest analysis. • The mental, emotional and physical health of the child and his need for appropriate care or treatment, or both; and • 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 [ 125 ] R.W. is five years old and still requires one on one care. He needs guidance to help self regulate. He self soothes by rocking back and forth, sometimes severely.

He is often in his own world and does better with a routine and when he has a social story ahead of time so that he knows what the expectation is. [ 126 ] Since R.W. came into the care of the Minister, he progressed rapidly. Within a couple of months, he was able to eat an entire yogurt cup on his own. He also potty trained quickly. By October 2021, he had changed and developed significantly. His hair was

thicker as were his eyelashes and eyebrows. He face had rounded out and he visibly had more muscle tone and fat on his body. He was walking flat-footed and not on his tippy toes, and was talking, listening, calm and curious. He is also getting better at communication. [ 127 ] It is Mr. Doucet’s opinion that R.W. needs an environment that is consistent and predictable for him to thrive.

In the last two years, since being in the Minister’s care, he has shown significant improvement and has benefited from an environment that is consistent and predictable. [ 128 ] A.W. denies that R.W. was a neglected child and does not understand why protective care of R.W. was taken. She does not deny R.W.’s bed was in the closet. What is the most concerning is that she does not recognize how inappropriate it was for R.W. to sleep there. I have found her explanation very troubling, even more so given this was addressed with her on prior occasions.

It was addressed with her just a few months prior, in January 2021. Also, in May 2019, the inappropriateness of keeping a child in a locked bedroom was addressed with her. [ 129 ] These prior events are relevant as it provides a reliable backdrop against which to measure the extent to which A.W.’s abilities and circumstances have changed. An indicator of a parent’s likely future conduct is his or her past conduct. ( Children’s Aid Society of the County of Simcoe v. S., [2001] O.J. No. 1380 ) [ 130 ] A.W.’s conduct as a parent is concerning.

The fact that she has done very little to improve or change her parenting is even more concerning. While she blamed domestic violence for the bed in the closet, she also tried to justify it. She agreed that there was a hook but said there was also an alarm. She said that R.W. was an infant and she was also caring for her other son, O.W. She put an alarm because if someone would open the door, she would know.

She said that R.W.’s bedroom was empty because, otherwise, it was covered in feces and needed him to focus on sleeping as he always had trouble sleeping. [ 131 ] A.W. does not recognize R.W.’s needs and she truly struggles with parenting. She also said she did the best she could to keep him safe. For her, R.W. is strange and he does weird things to get people’s attention. [ 132 ] A.W. did not follow through on services that were offered by the Minister and blames others. She acknowledges she often cancelled the parenting sessions but felt she was not heard and the concerns she was bringing up were not addressed.

Rather, she prefers to be a self-learner. In my view, she is simply not committed to parent R.W. [ 133 ] She is also unable to recognize her own struggles. She does acknowledge she needed help and that the Covid 19 pandemic was hard. They stayed inside and at times she felt trapped. She kept her son, L.S., home and did not send him to school but explains that he wanted to stay home. [ 134 ] In reality, A.W. has struggled to parent for many years and since her first child was born. The Minister h as been involved since then, and for more than 10 years.

The Minister’s involvement has been significant and, between January 5, 2011 and April 7, 2021, the Department received approximately 60 referrals with concerns of neglect and emotional abuse. Her two older children reside with their respective fathers, and she has not seen them for a couple of years. [ 135 ] A.W. struggles to regulate her own emotions and does not realize the impact it has on R.W. She cries in front of R.W. and has ended visits early because of her anxiety.

A.W., herself, said that at the visit of November 21, 2022, A.W. says R.W. started to rock, which she says is a self-soothing mechanism, and she broke down. Also, at that visit, C.C., who testified on A.W.’s behalf, testified that when R.W. came downstairs, he kept apologizing, was upset and was crying. [ 136 ] A.W. asked that the support worker no longer be allowed in her home due to having stressed out C.C., her partner’s mother. This resulted in the Monday visits being cancelled until a new support worker could be scheduled.

A.W. is simply unable to prioritize R.W., to care for him and meet his needs. [ 137 ] J.H. was not involved in R.W.’s life from April 2019 until January 25 2022 when he had a video call. When protective care of R.W. was taken, he had not been in a relationship with A.W. for two years and had also cut ties with R.W. I find it is a significant concern that he simply cut ties with R.W. for a few years and did not wish to maintain a relationship with him, even if he was not in his full-time care.

[ 138 ] J.H. denies he struggles with mental health but yet also has testified that he has not read Mr. Doucet’s report. In my view, it shows a lack of seriousness on his part. It shows he does not take his mental health seriously. To dismiss the relevance of Mr. Doucet’s report by ignoring it, also causes me concerns in J.H.’s ability to put R.W.’s needs first. [ 139 ] In Mr. Doucet’s opinion, J.H. current family environment demands much attention and would be that much more complicated if R.W. were to be in his full-time care. There are also 3 other children in the household.

That is ever so concerning because his partner S.L. does not interact with R.W. In my view, it is a significant concern if R.W. were to be in an environment with a parent that does not acknowledge him or interacts with him. J.H. has acknowledged it is challenging in this context to care for all of the children. He described that when R.W. is there, it is heightened . He does not consistently ensure that J.L. goes to school. [ 140 ] I recognize J.H. has recently started parenting sessions with Ms. MacNeil and has shown a willingness to engage.

I also recognize that supervised visits with R.W. go well, as they interact and play together. However, the concern is that J.H. continues to show a lack of engagement towards R.W. and an unwillingness to prioritize his needs over the long term. [ 141 ] R.W. does have high needs and requires one on one care. I am not convinced J.H. understands that R.W. needs more than just play time, and that he needs consistency and predictability. [ 142 ] Katelyn Hawkins also describes concerns with respect to the state of J.H.’s home.

At a recent visit, on February 27, 2023, there was a strong smell in the home and the smell was a mixture of smoke, body odour and old food. The floor was dirty with old food and toys. The kitchen was filthy with overflowing dishes and old food. The basement was also in disarray. In the basement, there were propane tanks, knives, garbage bags, and she says it was a mess. She advised J.H. the home condition was unacceptable, needed to be cleaned and that it was neglect but J.H. told her that if she wanted the house cleaned, she could do it herself. This, to me, shows a complete lack of engagement.

It shows J.H.’s inability to put R.W.’s needs first. [ 143 ] I am convinced that neither A.W. nor J.H. are able to meet R.W.’s needs. They have not shown consistency and predictability. They have not shown that they can prioritize R.W.’s needs ahead of their own. • The view and preferences of the child, where such views and preferences can be reasonably ascertained [ 144 ] This factor was not addressed by the parties and I have not considered it in my analysis. • The effect upon the child of any disruption of the child’s sense of continuity [ 145 ] In Mr.

Doucet’s opinion, R.W. is sensitive to transition and the environment plays an important role and can significantly impact his development. He expressed concerns that R.W. could regress if his environment changes and said he is not out of the woods yet. [ 146 ] R.W. has been in the Minister’s care for two years now. He has adapted well and has shown remarkable progress. Unfortunately, A.W. is unable to recognize that. She believes the system has failed R.W., that being in care has been a trauma for him. Her inability to recognize R.W.’s progress in his current environment is very concerning.

It shows a lack of realism with regards to R.W.’s needs and is indicative of her inability to provide stability and consistency. [ 147 ] She is also unable to recognize how her lack of consistency affects R.W. She misses visits for various reasons and visits are ending early because she is unable to regulate her emotions, unfortunately, she believes she is doing well and can parent R.W. [ 148 ] A.W. lives with her fiancée and his mother in a house owned by C.C. and her father. They have moved in together recently, since October 2022.

It is difficult to say if this is going to be a stable and long-term relationship which will provide housing stability. [ 149 ] J.H. is in a relationship with S.L. and has been for approximately four years. They live as a family unit with S.L.’s son, J.L.,

born from a previous relationship, and their two children, T.H. and R.H. They currently live in subsidized housing. Still, there was a period in 2019 when they were evicted from their apartment. J.H. and S.L. then separately moved in with their own family; J.H. with his mother and S.L. with her parents. They plan to move if R.W. is in their care. [ 150 ] J.H. is not working and does not expect to be working for the next five years, until the children are in school. [ 151 ] R.W. has adapted well to his current environment that is both consistent and predictable.

In my view, R.W.’s sense of continuity is better preserved if he remains in the care of the Minister. • The love, affection and ties that exist between the child and each person to whom the child’s custody is entrusted, each person to whom access to the child is granted and, where appropriate, each sibling of the child and, where appropriate, each grandparent of the child [ 152 ] A.W. says that she and R.W. are very attached and very bonded. R.W. is begging to be with her; he was begging for her in the middle of a cross walk. She describes that he is excited to see her and runs into her arms.

He kisses her during visits. Recently, he said to her mommy is big and beautiful . [ 153 ] Still, A.W.’s visits with R.W. are inconsistent. A.W. cancels visits for a multitude of reasons, and often ends visits early. She has difficulty with multi-tasking. She has difficulty in regulating her emotions. [ 154 ] A.W. moved into a new place around October 2022. Unfortunately, during that period, she did not have a visit with R.W. for more than one month, from September 19 th to October 24 th .

Then, she cancelled additional visits during the month of October. [ 155 ] A.W. acknowledges that she missed visits with R.W. but minimizes the impact and says that her anxiety has caused her to avoid things but that she is now being treated with proper medication. Although A.W. reports she is doing well, that she has been thriving, she continues to miss visits and visits are still ending early. [ 156 ] In January 2023, A.W. cancelled 8 out of 18 scheduled visits for various reasons, being sick or having an appointment.

She also ended two visits early, one when R.W. was rocking and the other for the possibility of losing power. In February 2023, A.W. cancelled 3 out of 10 scheduled visits, although one was cancelled due to poor weather conditions and one was cancelled by the support worker. However, A.W. ended two of the visits early. [ 157 ] Mr. Doucet observed one supervised visit with A.W. He commented that, during the visit, sometimes R.W. showed affection but sometimes he was in his own world. [ 158 ] A.W. also says R.W. loves her fiancée, J.C., and his mother, C.C.

J.C. says that during the visits he interacts and works on a relationship with R.W. He plays with R.W. and finds the visits are going well. R.W. gives him hugs and kisses when he arrives and leaves, and often cuddles with him and goes to him to get consoled. [ 159 ] C.C. says she is very close to R.W. She first met R.W. on October 29, 2022. She has done a gingerbread house with him, went to the Aquatic Centre and to a restaurant. They had a birthday party for him on February 3, 2023. She says he is asking to stay when it is time to leave. She has observed him to show affection to A.W. and J.C.

One time he lay beside her and was pretending to sleep so he wouldn’t have to leave. When he leaves, he says bye, gives her a kiss and a hug. She says he loves cuddling, jumping on her bed and they went swimming and he enjoyed that. She says R.W. is always happy to see her. [ 160 ] A.W. has a strained relationship with her mother, whom she describes as mentally ill, an addict and toxic. A.W. has two older children, R.W.’s siblings, but A.W. has not seen them for at least two years. [ 161 ] J.H. says that R.W. seems excited to be at visits. He does acknowledge that R.W.’s attention span is very short.

He says that by the month of July 2022, R.W. recognized the baby’s nickname was “Chicken”. By then, if R.W. was upstairs and the baby was crying, he would run downstairs and say Chicken is crying. Once the baby got older and able to regulate the noises, R.W. would find a

toy and try and give it to her. He says he observed R.W. trying to teach the baby to put a soother in her mouth. [162] J.H. says that R.W. does not seem to want to interact with T.H. but asks for J.L. If J.L. is not there, R.W. is restless. [163] He acknowledges that his partner, S.L., does not engage with R.W. He said that when his visits started, they came to anagreement that he would try and bond with R.W. He says S.L. wants to give him the space to bond. S.L. does not force an interactionbut, if R.W. goes to her, she interacts.

He is comfortable in sitting beside her on the couch. [164] S.L. said that J.H. and R.W. seem to like each other. She has observed them playing together and having fun together. Shesays that R.W. does not mind the other children or reacts to them the same way as he does for J.L. but adds that R.W. is in his ownworld. [165] I don’t doubt that both A.W. and J.H. love R.W.

Although love and affection are important criteria to consider whenassessing the best interests of the child, they are not to supersede the other factors enumerated in the definition of best interests of thechild. (New Brunswick (Minister of Social Development) v. G.B. 2012 NBCA 62 , [2012] N.B.J. No. 263) • The merits of any plan proposed by the Minister under which he would be caring for the child, in comparison with themerits of the child returning to or remaining with his parents [166] The Minister’s post-guardianship plan is that R.W. will remain in the Minister’s care until an adoption placement is found.

Plan to parent - A.W. [167] A.W. wishes for R.W. to return to her care, even if it means with a supervisory order. She also says she would be willing toco-parent with J.H. [168] A.W. and her finance, J.C., have been in a relationship since November, 2021. They have shared a house with J.C.’s mother,C.C., since October, 2022. A.W. and J.C. use the upstairs, mostly, but share the living room and the kitchen. It is a 3-bedroom housewith two bedrooms upstairs, one of them to be used for R.W. with the downstairs bedroom being occupied by C.C.

There is also abathroom upstairs. [169] A.W. says she has clothing for R.W. and developmental toys. She also plans for a wireless video camera in his room. [170] J.C. does not work and plans to stay home and co-parent with A.W. A.W. says that J.C., C.C. and C.C.’s family are a hugesupport. C.C. has a vehicle and can drive them to appointments. C.C. says she also has a lot of family support herself from her dad andsister and they are close. They have brought her food and toilet paper but they have not met R.W. yet. [171] A.W. says she would get up in the morning with R.W. and she is usually up by 6:30 am.

She would make breakfast andlunch. She adds that R.W. likes blueberries but he does not like the texture of strawberries. She would bring him to school. J.C. andC.C. would help, as well. She also plans weekly visits to bring R.W. to the Aquatic Centre as he loves to swim. Parenting plan - J.H. [172] J.H. and his partner, S.L., currently reside in subsidized housing. It is a house divided into four units and they live in one unitwith three children. J.H. does not work and does not intend to go back to work for another five years or so, until all the children are inschool.

He attempted to return to work, but it did not work out and he was let go. [173] The house has three bedrooms and, if R.W. was to move him with them, they would need to apply through NB housing for alarger unit but cannot do so before R.W. is living with them. If he were to stay overnight now, he could sleep in J.L.’s room.

[174] They don’t have clothing for R.W. but J.H. does not see that as a problem as they live beside the Salvation Army. [175] He says he feels neutral regarding A.W. and believes they would be able to co-parent. He believes they could sit together andfigure out a parenting schedule. [176] R.W. is a child with high needs. He requires one on once care. While A.W. and J.H. have presented plans to parent, neitherhave presented a plan that addressed R.W.’s needs, including his needs for a routine, consistency and predictability.

They have notpresented a plan that convinces me it is in R.W.’s best interest that guardianship not be granted. In my view, the Minister’s plan isfeasible and also in the best interests of R.W. • The child’s cultural and religious heritage [177] This factor was not addressed by the parties. I have not considered it in my analysis.

FINDINGS AS TO THE MINISTER’S APPLICATION [178] It is the severe neglect of R.W., the lack of acknowledgment of neglect, the mental health instability, the lack of parentingskills and lack of engagement, which results in both A.W. and J.H.’s inability to meet R.W.’s needs. [179] Having considered the totality of the evidence and having considered the submissions of the parties, I find it is in the bestinterest of R.W. that guardianship be granted to the Minister pursuant to section 56(1) of the Act. RIGHT OF ACCESS [180] The recent New Brunswick Court of Appeal decision in Minister of Social Development v.

V.L.C. et al., 2023 NBCA 12,reiterated the applicable principles with respect to post-guardianship access. It is not the right of the parent, it is the right of their child. Access is the exception, and not the rule. It is only in rare situations that access would be ordered. In D.S. and A.V. v. The Minister ofSocial Development, 2021 NBCA 25, [2021] N.B.J. NO. 128 (QL), the Court drew the following principles from the Supreme Courtdecision in New Brunswick (Minister of Health and Community Services) v. L. (M.), (SCC), [1998] 2 S.C.R. 534,[1998] S.C.J.

No. 52 (QL): • There is no inconsistency in principle between a guardianship order and an access order; • While a liberal

interpretation of the Act is appropriate, the best interests of the child are the primary consideration and thepreservation of family ties is subordinate; • If adoption is more important for the ongoing welfare of a child, and it would be jeopardized if a right of access were exercised,access should not be granted; • In considering whether to preserve a child’s right of access with his or her parents, a judge is required to weigh the variouscomponents of the best interests of the child.

Evidence concerning how access has historically been exercised becomes particularlyrelevant; and • Access should not be granted if it would have a negative effect on the physical or psychological health of the child. [181] It is Mr. Doucet’s opinion that most children benefit from contact with parents and siblings but it depends on the child’sresponse. He explains the contact needs to be based on the needs of the child, that you would need to consider if the child isdysregulated when he returns from a visit and, if so, does it take a long time to readjust. Mr.

Doucet also notes that R.W. functions wellin his group home. And although he is used to seeing both parents at visits, he does not express a strong desire to see them. [182] With respect to siblings, Mr. Doucet says it is difficult to assess if R.W. knows the other children are his family. While it isusually beneficial, and there is nothing wrong with a positive interaction with other children, he does not know if that would be the casefor R.W.

He added that it is difficult to predict if it would be detrimental to R.W., knowing there are siblings and not having contact. [183] Janice Carter from Moncton Community Residences Inc. said that R.W. is not happy or sad, but glad to know that he is going

to a visit. However, when he returns, sometimes his mood is very elevated, he is distracted, dysregulated and has a hard time to focus or settle. [ 184 ] R.W. needs consistency and predictability. A.W.’s visits are not consistent; she cancels visits and visits have ended early because she has had difficulty regulating her own emotions. This has a negative impact on R.W. For example, at the visit of November 21, 2022, the support worker observed that R.W. rocked more rapidly as A.W.’s voice escalated.

R.W. ’s reaction is corroborated by C.C. who testified that when R.W. came downstairs on that day, he kept apologizing, was upset and was crying. [ 185 ] J.H.’s visits are also not consistent and visits have ended early, sometimes at the request of R.W. J.H., himself, described that when R.W. is there, it is heightened. At a recent visit on January 12, 2023, it ended 40 minutes early because J.H. was not prepared. He did not have a change of clothes for R.W. Also, in January, 2023, J.H. did not attend a visit because of tooth pain. [ 186 ] The best interests of R.W. is the primary consideration.

Having weighed the various components of the best interests, I deny to preserve a right of access. In my view, there are no exceptional circumstances that would justify the preservation of post-guardianship access. DISPOSITION [ 187 ] Pursuant to subsection 56(1) of the Act , the Minister is granted guardianship of R.W., born […]. [ 188 ] A right of access is not preserved. DATED at Saint John, New Brunswick, this 5 th day of May, 2023. _____________________________ Danie Roy Justice of the Court of King’s Bench New Brunswick, Family Division