THE MINISTER OF SOCIAL DEVELOPMENT Applicant - and- M.K. v. T.M., 2023 NBKB 015

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FDSJ-503-21 FAMILY DIVISION JUDICIAL DISTRICT OF SAINT JOHN Neutral Citation: 2023 NBKB 015 Date of Decision: February 7, 2023 BETWEEN: THE MINISTER OF SOCIAL DEVELOPMENT Applicant - and- M.K. and T.M. Respondents DECISION BEFORE: Madam Justice Chantal N. Daigle AT: Saint John, N.B. DATE OF HEARING: January 23, 24, 25, 26 and 31, 2023 DATE OF DECISION: February 7, 2023 APPEARANCES: Sarah Rouse, for the Applicant Misty Matthews-Emery, for the Respondent M.K. William H. Watts, for the Respondent T.M.

Patricia Gallagher-Jette, for the children Daigle, J.: I. INTRODUCTION: [ 1 ] The Minister of Social Development (hereinafter the “Minister”) seeks a guardianship order with respect to two children, D.H. who is 14 years of age and A.M. who is 4 years of age, pursuant to subsection 56(1) of the Family Services Act , S.N.B. 1980, c.F- 2.2 . Throughout this decision, the children will be identified as D. and A. respectively. [ 2 ] The respondent, M.K. is the biological mother of both children. At the beginning of the hearing, she consented to the Minister’s application.

After providing her consent, both she and her counsel asked to be excused from having to participate in the remainder of the proceedings and that request was granted. [ 3 ] The respondent, T.M. is the biological father of the youngest child A. and has acted in the capacity of a parent to D. Mr. M. does not oppose the guardianship of D. and given the age of the child, he is satisfied that any post-guardianship access simply be at D.’s discretion. [ 4 ] Therefore, the only issues before the Court pertain to the youngest child A. Mr.

M. asks that the Minister’s application be dismissed and that he be granted primary care of A. In the alternative, if a guardianship order is granted, he asks for post-guardianship access. [ 5 ] At the outset, I note that this guardianship application was originally scheduled to be heard in September 2022. At the request of the Minister, the trial was postponed to a later date to allow more time for the Minister to work with the mother. All parties consented to this adjournment. II.

FACTS: [ 6 ] In November 2019, an ongoing child protection case was opened with respect to the family due to concerns surrounding D.’s school attendance and hygiene. In December 2019, there was an incident with the family dog as a result of which A. required 14 stiches. This set off a chain of events with the Minister.

Ongoing work with the family identified concerns over parental drug use. [ 7 ] In April 2020, following positive drug screens by both parents, the children were placed in the care of a family friend under a kinship agreement. [ 8 ] After the children left the home in April 2020, supervised visits were put in place for both parents. At times, the visits were held at the home of Ms. K. (where Mr. M. also attended). Other times, visits were held at the offices of the family support worker supervising the visit. [ 9 ] Social worker Rachel Barrett was assigned to work with the family.

She was the lead social worker from April 2020 to January 2022. [ 10 ] During a meeting with the parents in May 2020, Ms. K. reported that her drug use had increased since the children had gone to live with a family friend. Mr. M. indicated that he rarely used drugs and that he only used when the mother did. The parents signed a Case Plan in May 2020. It had two objectives, namely (

i) being sober caregivers for the children, and (ii) attending visits. The first objective was to be achieved by providing drug screens and attending a detox program. [ 11 ] The children remained in the care of a family friend under a kinship agreement until mid-September 2020. At that point, the Minister determined that that arrangement was no longer sustainable. Due to the Minister’s ongoing concerns with drug use by both parents, the Minister took protective care of the children. The children have remained in the care of the Minister since September 22, 2020. [ 12 ] In the Fall of 2020, Ms.

Barrett sat down with the parents to discuss drug screens and addictions counseling. She indicated that she had not seen any changes in their test results. She asked the parents if they understood what they needed to do for the children to come home and both said they did. On a number of occasions, Ms. Barrett explained to the parents that they could progress to unsupervised visits and then overnight visits once they had provided a certain number of negative drug screens. At no time did either of them provide any negative screens. Oftentimes, the parents refused to undergo drug testing, although Mr.

M. was much more compliant than Ms. K. in that regard. [ 13 ] In June 2021, Mr. M. advised Ms. Barrett that his drug consumption had decreased. He acknowledged that he was using marijuana and methamphetamine. He indicated that he had attended Narcotics Anonymous but had stopped. Ms. Barrett asked if there was any kind of support that would be helpful but he indicated he did not want help. Ms. Barrett met with Mr. M. again in July 2021. At that time, he said that he was using methamphetamine every few days. He re-iterated that he did not want any support to address his

drug use and that he would achieve sobriety on his own. [ 14 ] In December 2021, the father’s Case Plan was updated to include the following four objectives: (

i) work towards sobriety, (ii) refrain from engaging in conflict during visits or in front of the children, (iii) attend all visits as scheduled, and (iv) work collaboratively with the Minister. The Case Plan stated that Mr. M. could begin transitioning to unsupervised visits, then overnights after he had provided three consecutive weeks of positive visits, negative drug screens and regular work with his social worker. This was never achieved. [ 15 ] As stated, Ms. Barrett worked with the family from April 2020 until January 2022.

She testified that the Minister’s concerns with the family throughout her involvement centered around parental drug use and lack of engagement with the Minister, as well as some concerning behaviours identified during access visits. The evidence confirms that during this period, the parents were largely unengaged in case planning, they were not completing regular drug screens, and were doing very little to achieve sobriety. Other than attending visits, little else was done to achieve reunification. [ 16 ] Ms. Barrett testified that Mr. M. admitted to using methamphetamine throughout her involvement.

He advised that he did not need supports to quit and wanted to “do it on his own”. He attended Narcotics Anonymous but advised the social worker that he stopped participating as it was only being offered online. [ 17 ] The parents went long periods without participating in drug screens. This led Ms. Barrett to put drug testing on hold in January 2021 until the parents indicated they were sober. Ms. Barrett repeatedly advised the parents that they needed to provide a certain number of negative drug screens to progress to unsupervised and then overnight visits.

However, they did not provide any negative screens during her period of involvement. Ms. Barrett confirmed that illicit drug use was the major barrier to reunification, as the children required a sober caregiver. Ultimately, she was not successful in getting the parents to address their drug issues. According to Ms. Barrett, Ms. K. did attend detox at one point. However, she relapsed two days later. [ 18 ] Ms. Barrett noted that there were also some concerns with visits. For example, the parents bickered at times. As well, Mr.

M. sometimes displayed frustration or aggression, and swore at or in front of the children. However, as Ms. Barrett explained, those issues were never the focus because the parents could never get past their substance abuse which was the primary focus throughout. [ 19 ] Ms. Barrett struggled to engage with the parents throughout her time on the file. She described the parents as being avoidant and said they would generally only text when they needed something from her. Otherwise, she often received no response to her calls or texts. Beginning in September 2021, Ms.

Barrett had a standing appointment every Tuesday afternoon with each of the parents. She indicated they rarely attended these meetings. When Mr. M. did attend, he just starred at the floor or became agitated. During meetings with Ms. Barrett and other social workers, Mr. M. would sit with his back to them and not make eye contact. Oftentimes, he just gave one-word answers. Other times, he would get angry, start to swear and become agitated. [ 20 ] In January 2022, the file was transferred to Catherine Joudry who stayed in this role until July 2022.

She confirmed that the main two areas of concern during her involvement were parental drug use and the parents’ lack of engagement with the Minister. [ 21 ] A Permanency Planning Conference was held on January 28, 2022. Both parents attended. It was noted that the parents continued to struggle with drug use, largely methamphetamine use, and had yet to participate in a substance abuse treatment program. It was noted that there was ongoing conflict between the parents who, at that point, were no longer a couple.

The parents had not yet signed their most recent Case Plan but they were beginning to participate in more regular drug screens. The parents were advised that due to the length of time the children had been in the care of the Minister, the Minister would be applying for a guardianship order. [ 22 ] The parents’ visits with the children were increased in January 2022. Throughout 2022 and until trial, the father had five visits per week with A. Three of these visits were solely with A. One visit was with Ms. K. and A., and finally one visit was with the Ms. K., A. and D. [ 23 ] Mr. M. attended a meeting with Ms.

Joudry in early February 2022. He agreed to call Ridgewood Addiction Services the following day to discuss what treatment options were available for him. Mr. M. did not want to attend a 28-day program for fear that he would miss visits with A. He indicated that he was seeing a counsellor every few weeks to build coping skills. He reported that he had been doing drug testing weekly and stated that he had been sober for two weeks. Mr. M. underwent drug testing on January 14, 2022, January 20, 2022, January 24, 2022, January 31, 2022 and February 8, 2022.

All five drug screens were positive for methamphetamine. [ 24 ] In March 2022, the Minister filed an application seeking a guardianship order with respect to D. and A. After a brief court appearance on March 10, 2022, Ms. Joudry met with both parents. She informed the parents that she recognized their parenting skills and love for the children. She indicated that she believed they were capable of getting the children back in their care. However, they needed to address their addictions. She explained to Mr. M. that he needed to attend detox and participate in rehabilitation services.

She voiced her concern that if one parent addressed their addiction and the other did not, they would pull each other back into the same cycle. Mr. M. was advised that if he did attend detox, she would ensure that he see the children. She indicated she would bring them to the visit herself if needed. Ms. K. asked if there was anything else they needed to do. Ms. Joudry told the parents that, more than anything else, they needed to address their addictions. [ 25 ] Ms. Joudry met with Mr. M. again on March 22, 2022. She again asked him to consider community programs to address his addiction.

He declined and said he did not get along with many people. In another meeting that same day, he indicated he was using drugs once a week and that stress and withdrawal lead him to use. Ms. Joudry re-iterated that he needed to follow a program in addition to detox, so he could maintain sobriety once he detoxed. She indicated that the Minister would want to see a maintenance of sobriety before trial. Mr. M. said he understood. [ 26 ] Mr. M. underwent thirteen drug screens from March 29, 2022 to June 30, 2022. All thirteen screens were positive for methamphetamine. [ 27 ] Throughout Ms.

Joudry’s involvement, she continued to have a standing meeting with both parents every Tuesday. Ms.

Joudry indicated that Mr. M. only attended a handful of times, usually when he needed something, like a bus pass. Regarding his substance abuse, she testified that Mr. M. wanted to address his substance abuse on his own. [ 28 ] Overall, Mr. M. continued to test positive for methamphetamine throughout her involvement. He never denied his drug use, reported that he used once a week, and that stress or withdrawal symptoms led to his use. Ms. Joudry repeatedly advised the parents that they needed to attend detox or rehabilitation programs. Neither parent heeded her advice. [ 29 ] During her cross-examination, Ms.

Joudry acknowledged that she did not have much contact with Mr. M. She explained that she usually reached out to both parents but that Ms. K. was more apt to respond. Ms. Joudry confirmed that she discussed the possibility of having a Family Group Conference to determine if there were any family members willing to parent the children. Both parents indicated there were none. [ 30 ] Ms. Joudry left her position in July 2022. During her 6-month involvement as lead social worker, Mr. K. never attended any program to address his addiction. She attempted to engage him in case planning.

However, little to no progress was made, other than attending visits. [ 31 ] In late August 2022, Meredith Ferris became the lead social worker for the family. As stated previously, the trial was originally scheduled to take place in September 2022. However, the Minister requested an adjournment in order to allow Ms. K. more time to attend a rehabilitation facility and to further explore the possibility of having a Family Group Conference. The plan was for the mother to address her addictions and resume the role of primary caregiver.

The father supported that plan. [ 32 ] Regrettably, no further progress was made and the engagement between the parents and the Minister did not improve, despite the fact there was only a very small window of time left to turn things around. [ 33 ] Throughout Ms. Ferris’ involvement, Mr. M. continued to test positive for illicit drugs, including amphetamine, methamphetamine, and cocaine. Mr. M. completed 20 drug screens in the six months before trial. All tests were positive for methamphetamine. Fifteen of those tests were also positive for cocaine.

The most recent available drug screen was conducted on January 10, 2023. It was positive for amphetamine, methamphetamine and cocaine. [ 34 ] Ms. Ferris confirmed that Mr. M. had not attended rehabilitation, detox or any other community program during her involvement with the file. She confirmed that her involvement with Mr. M. was limited. From the start, it was her understanding that Mr. M. supported Ms. K.’s plan to address her addictions and have the children returned to her care. He wanted the children to be reunited with the mother. Mr.

M. never presented his own plan to be the children’s primary caregiver. [ 35 ] According to Ms. Ferris, it was on the second day of trial that Mr. M. presented a plan to have A. returned to his full-time care. Mr. M. advised that he had recently moved to the Kingston Peninsula and had been sober for two weeks. He advised that a friend had provided him with a home in which to live. [ 36 ] Ms. Ferris indicated that it was up to Mr. M. to present a plan if he wanted the child returned to his care. She testified that if he wanted to assume the role of primary parent, he needed to take responsibility.

I would agree. [ 37 ] Finally, Ms. Ferris testified that since she became involved with the family, Mr. M. had been missing one visit per week on average, usually one of his one-on-one visits with A. She also confirmed that two referrals for a Family Group Conference were completed for this family. None was ever held because Ms. K. did not engage with or respond to the coordinator. Evidence of Family Support Workers [ 38 ] Melissa Delong provided affidavit evidence and testified at trial.

She works as a family support worker and she supervised roughly 230 visits for this family during the period of March 2021 to December 2022. She supervised visits with all four family members present, as well as one-on-one visits between A. and Mr. M. On approximately five occasions, she had to end a visit early because Mr. M. was falling asleep during a visit or was swearing at the child. [ 39 ] Her evidence supports the finding that Mr. M. was sometimes very tired during visits. She observed him closing his eyes and dropping his head.

He always denied sleeping and would get upset at her suggestion that the visit would be terminated if he did not stay alert. On one occasion in May 2021, the visit was terminated, he became upset with Ms. Delong and told A. that she would not see him again and that Ms. Delong was to blame. A. appeared to be scared and she started to cry. He carried her to the car and told her “this is the last time you see Daddy”. This would undoubtedly have been very upsetting and confusing for A. who was not yet 3 years old at the time. [ 40 ] Ms. Delong noted that on another occasion in July 2021, Mr.

M. sat on the couch during the entire visit, nodded off a few times, and fell asleep. He dropped a bowl of cereal all over himself while falling asleep, then woke and jumped up. Again, the visit was terminated. The same happened again a few days later on July 8, 2021. Mr. M. dozed off repeatedly and startled himself awake. When he fell asleep again, Ms. Delong ended the visit. When A. asked why they were leaving, Mr. M. blamed Ms. Delong and then told A. that she would not get her snack or the rest of her supper because of Ms. Delong. [ 41 ] On one occasion when Mr. M. was struggling to change A.’s diaper, Ms.

Delong ended the visit because he was swearing at the child. Mr. M. got upset and told her not to tell him how to parent his child and then swore at Ms. Delong. [ 42 ] She indicated on cross-examination that Mr. M. would sometimes engage with the child, that he would play with her for short stints and then she would play independently. She noted that there was frequent cursing during visits, that she would address the

language and warned both parents when swearing in front of the child. [ 43 ] Sasha Dunphy supervised 45 visits from May 2022 to December 2022. She noted that A. was very happy when she arrived to visit her father. Mr. M. always brought lots of food for her. She noted that he was usually very engaged and that visits usually ended on a positive note, with Mr. M. telling A. that he loved her and giving her hugs and kisses. On the other hand, Ms. Dunphy noted that Mr. M. would sometimes get frustrated or upset when A. did not behave as expected. [ 44 ] She noted that at one visit in June 2022, Mr.

M. indicated he was upset because A. gave the Father’s Day craft she made at preschool to her foster parent. He also stated he did not like the fact that A. called her foster parents “mom and dad”. I note that A. had been out of her parent’s care for two years at that point. [ 45 ] Overall, Ms. Dunphy’s affidavit reveals a complicated relationship between father and child. For example, on one occasion in October 2022, A. sat on the floor in the corner as the visit was ending. Mr. M. threatened to cancel visits because A. would not apologize for her behaviour, and she shook her head no. Mr.

M. picked her up and tried to get her to stand but she started to cry and yell for her mother. Mr. M. grabbed his bags, picked up A. and carried her to the car, saying “I’m not coming to see you for a while”. On another occasion at the end of November 2022, Mr. M. became frustrated and put A. in a timeout when she misbehaved. He told A. that he would not attend the visit the following day. She did not respond when Mr. M. said he loved her at the end of the visit. [ 46 ] During a visit in December 2022, A.’s behaviour changed approximately halfway through the visit, and she began to yell and cry. Again, Mr.

M. threatened not to be at next week’s visit. A. stated she wanted to go back to daycare and did not want to stay at the visit. Mr. M. then put her in a timeout and told her to “shut [her] mouth”. Ms. Dunphy noted that he did not tell A. he loved her or give her a hug at the end of the visit. [ 47 ] During another visit later that week, A. ate half of the sandwich she had picked out at the grocery store and then refused to eat the rest. Mr. M. became frustrated and started to take things away from her as a punishment. She laughed when he told her to listen, which made him even more frustrated.

He then threw the sandwich in the garbage, packed up his things and told A. it was time to go. [ 48 ] I note that there were issues with A.’s eating habits throughout her time in care. The social workers and foster mother felt that Mr. M. was providing too many snacks. The parents disagreed there was any issue. The child seems to have been caught in this tug-of- war between the adults over her eating habits. [ 49 ] During a visit in mid-December 2022, A. again refused to finish her cereal and said she wanted to go back to daycare. Mr. M. told her that she was not going back right now and put her in a timeout.

She yelled “no”, laughed and spit at Mr. M., and kicked off her boots. Ms. Dunphy noted that Mr. M. kept dozing off every few minutes during the visit and had difficulty keeping his eyes open. He would begin to speak and would then stop and close his eyes. A. stared at him when this occurred. They did not exchange hugs at the end of the visit. [ 50 ] On December 23, 2022, the visit went well until it was time for lunch. At that point, A. started to cry, refused to eat, and spat in Mr. M.’s face. Mr. M. yelled at A. who would not stop crying or spitting and sat in the corner. Mr.

M. threw out her lunch, put on his coat, and walked her to the vehicle. He did not say goodbye as he buckled her into the family support worker’s vehicle. [ 51 ] Overall, Ms. Dunphy supervised 45 visits between Mr. M. and A. from May 2022 to December 2022. Seventy-one visits had been available, but Mr. M. missed 26 visits. Mr. M. did not dispute this evidence. Early on, A. exhibited difficult behaviors when Mr. M. missed visits. According to the foster mother, in recent months, she appeared to have resigned herself to the fact that he regularly missed visits. Evidence of Mr. M. [ 52 ] Mr. M. is 30 years of age.

Until very recently, he was living in a rooming house in Saint John but he testified that he relocated to the Kingston Peninsula about two weeks ago. He testified that he is living in a friend’s home and would be completing renovations in exchange for free accommodations. He testified that he recently reconnected with this friend, Ms. R., approximately two weeks ago after having no contact with her for about 10 years. [ 53 ] He indicated there were lots of renovations needed and as such, this arrangement could be in place for some time.

That said, he testified that the home was “in pretty good shape”, and that it was at the stage of putting up dry wall and flooring in certain rooms. Since the Minister was only informed of this residence during the trial, neither Ms. Ferris nor anyone else had been able to view the home to assess its suitability. Mr. M. testified that he has a bed, toys and some clothes for A. [ 54 ] Mr. M. had not investigated what school A. would attend when she starts school in the Fall but believed that she would likely attend school nearby in Quispamsis.

He testified that he does not have a vehicle or a driver’s license but knew of a neighbour who had a truck and could assist with transportation when necessary. He did not know this neighbour’s last name or contact information. [ 55 ] Mr. M. acknowledged that he had not presented this plan to the Minister before trial as he had been supporting the mother’s plan for reunification. [ 56 ] Mr. M. testified that he had not used illicit drugs for two and a half weeks. He was adamant that he wanted to remain sober for A. and he was confident that he would succeed.

That is why he recently moved to Kingston: so he would no longer be surrounded by drug dealers. He explained that with the support of his friend Ms. R., he had now divested himself of all other friends whom he described as “bad influences”. During cross-examination, he was firm that he would not use illicit drugs if A. was in his care. He avowed there was no chance of relapse. [ 57 ] Mr. M. testified that he and the mother had been in an “on and off” relationship for roughly 11 years but had not lived together since 2016. A. was born in 2018 and accordingly, he has never lived with her full-time.

Nevertheless, he testified that he had daily involvement in her care from the time she was born. Before the children went into care, he went to Ms. K.’s home every day to spend

time with A. He and the mother shared parenting duties. In fact, Mr. M. spoke about a period of time in early 2020 when he was to be the children’s primary caregiver because Ms. K. was testing positive for illicit drugs. It was Ms. K. who initially had a drug problem and according to Mr. M., the Minister wanted him to be the sober caregiver when she was intoxicated. The plan was that she would go to his residence when she was using, and he would come to the house to look after the children.

However, about a month after this plan was put in place, the parents began using drugs together and his drug use became problematic as well. This occurred sometime in early 2020 before the children were placed with a family friend. [ 58 ] Mr. M. testified that he started smoking crystal meth about two years ago, before the children went into the care of the Minister. His usage appears to have progressed over time and for the past six months, he has used crystal meth every day. He stopped using two and a half weeks before trial.

He indicated that he used meth to get off cocaine and that right now, marijuana was helping him stay off meth. He confirmed that he has used marijuana daily since he has gotten off meth. [ 59 ] Mr. M. acknowledged being repeatedly told by social workers that he needed to get sober. He had been aware of the Minister’s “zero tolerance” policy since the children went into care. However, Mr. M. acknowledged that addiction is tough, especially an addiction to crystal meth. He said “it was harder to stop” than he initially anticipated, and he “didn’t realize the hold that it had on [him]”.

He felt it would be easier to stay sober now that he was living in the country, free from bad influences. [ 60 ] Mr. M. did not want to attend a rehabilitation facility because he did not want to participate in group therapy. I note that Mr. M. has had a very difficult childhood and presumably, he did not want to relive the trauma he sustained. He participated in a few Narcotics Anonymous meetings via Zoom but did not find it beneficial. [ 61 ] Mr. M. testified that he used drugs at home, which he purchased from drug dealers.

He confirmed that until two weeks ago, there would have been known drug dealers in his environment. Mr. M. testified that he usually used drugs in the evenings. When asked about the effect it would have on him, he testified that it kept him alert and he stayed up all night. He would go to sleep after his morning visit with A. This would explain why he sometimes struggled to stay awake during visits. [ 62 ] Mr. M. is in receipt of social assistance benefits. He testified that he would trade things, such as cigarettes or electronics that he found or previously owned, to support his drug habit.

On cross-examination, he testified that he spent approximately $20-$40 per day on crystal meth. He also spent about $50 per week on cocaine. This would total more than $1,000 per month. On re-direct, he clarified that he spent about $40 every 3 days on crystal meth. Thus, at a minimum, he was spending roughly $400 per month on illicit drugs. Mr. M. receives less than $600 per month in social assistance benefits. [ 63 ] Mr. M. admitted to becoming agitated and swearing when family support workers tried to correct his parenting.

He acknowledged that he sometimes finds it hard to deal with the child’s behaviours when she acts out. [ 64 ] Finally, during cross-examination, Mr. M. acknowledged that he was a registered sex offender. He was convicted of a sex related offence in 2013, spent 6 months in jail and was ordered to register on the National Sex Offender Registry (“NSOR”) for a period of 10 years. He acknowledged that he is scheduled to appear in Provincial Court at the end of March 2023 as a result of his failure to register on the NSOR in recent years.

He acknowledged that he could be facing a penalty of up to 2 years of incarceration. When asked who would look after A. if he was incarcerated, Mr. M. testified that his friend Ms. R. would quit her job in Alberta and return to New Brunswick to look after A. [ 65 ] Mr. M. testified that there is no one to help him look after A. He does not have any family that can help and he has divested himself of all his friends as they too consumed drugs. Ms. R. is his only support, and she will soon be returning to Alberta. He testified that the mother Ms.

K. would also continue to be involved in the child’s life. [ 66 ] Overall, Mr. M. agreed there were many uncertainties with regards to this plan, but he was nevertheless certain he could pull it off. III. ISSUES [ 67 ] The issues to be resolved in this matter are as follows: (

i) Is it in the best interests of the child that a guardianship order be granted to the Minister, thereby transferring the child’s custody, care and control to the Minister on a permanent basis ? (ii) If a guardianship order is granted, should there be a right of access? IV.

LAW AND ANALYSIS: [ 68 ] The Minister seeks a guardianship order pursuant to subsection 56(1) of the Family Services Act , which states: 56(1) The court may make a guardianship order transferring 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. [ 69 ] The Minister argues that the security and development of the child would be in danger if she were returned to the care of either parent. [ 70 ] In this case, the Minister relies on paragraphs 31(1) (

c) and 31(1) (

d) of the Family Services Act , which state as follows: 31(1) The security or development of a child may be in danger when (

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; (…)

[71] The Court's overriding concern in every child protection proceeding is determining what is in the best interests of the child. This principle is confirmed by subsection 53(2) of the Family Services Act: 53(2) When disposing of an application under this Part the court shall at all times place above all other considerations the best interestsof the child. [72] The factors to be considered when determining the best interests of the child are found in

section 1 of the Family Services 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 reasonable 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 and, where appropriate, each grandparent of thechild; (

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 society throughthe achievement of his full potential according to his individual capacity; and (

g) the child's cultural and religious heritage. (

i) Should a guardianship order be granted? [73] At this time, the Minister’s main child protection concern continues to be Mr. M.’s substance abuse, although I note thathousing is also a concern. [74] Over the course of the last 33 months, Mr. M. underwent 44 drug screens. He tested positive for methamphetamine each andevery time. He tested positive for cocaine on 20 occasions, 15 of which was in the last 6 months. [75] In New Brunswick (Minister of Social Development) v. S.T., [2014] N.B.J.

No 74, 2014 NBQB 24, Noble J. stated: 199 In its pre-hearing brief, the Crown makes specific reference to two New Brunswick decisions in which the Court commented uponthe impact of addictions on the respondents' ability to parent their children. In the first, New Brunswick (Minister of Health andCommunity Services) v. G.A. [1998] N.B.J. No. 475, Boisvert, J. set out: The respondent G.A. claims she has changed; she says she has not taken drugs or alcohol for three months. But as was said in Nouveau-Brunswick (Ministère de la Santé et des Services communautaires) v. C.L., FDB-266-98, [1998] N.B.J.

No. 386, "good intentionsexpressed at trial are not always sufficient." 200 The second of the decisions, that of Ferguson, J. in New Brunswick (Minister of Social Development) v. T.L.T., [2010] N.B.J. No.169, expanded upon the theme set out by Justice Boisvert: The Minister, in my view, has led cogent evidence concerning the father's failure to deal in any effective way with his drug problem overa lengthy period of time.

That evidence is especially cogent for the period after he was given the greatest incentive to do so by beingtold, almost 2 years ago, that his failure to live drug-free would lead to a guardianship application. Absent evidence that drug use hasceased, and not just for the near term, the guardianship case has been made out given the needs of the child. That is not to say that theburden of proof has been shifted to the father. It has remained with the Minister throughout.

However, C cannot be turned back to thecustody of a father still struggling to overcome his drug dependency only to be apprehended again in the near future. Her bestinterests demand more than a hope the father can be rehabilitated. 201 Justice Ferguson's decision emphasizes that the Court's primary concern must be the best interests of the child. If there is any riskthat the addiction of the parent poses a risk to the children in his/her custody, the Court should always make its decision in the bestinterests of the child.

The decision does not stand for the principle that parents who suffer from addictions should never be permitted tohave custody of their children. Instead, it reinforces the principle that an addict that suffers from a "history of relapse" poses a threat to adependent child. (See: The Minister of Family and Community Services v. A.W. W.C., [2007] N.B.J. No. 4 (QL), 2007 NBQB 9. Thisdecision was upheld by the New Brunswick Court of Appeal. See A.W. v.

The Minister of Family and Community Services, 2007NBCA 77 ; 322 N.B.R. (2d) 162; 43 R.F.L. (6th) 277). [Emphasis added] [76] In New Brunswick (Minister of Social Development) v. H.F., [2012] NBJ No 129, 2012 NBQB 117, Ferguson, J. discussedthe same concept in greater detail. Upon granting a guardianship order, he stated: 138 All of the issues identified in the evidence have been longstanding. Most importantly, H.F. has been aware of the Minister'sconcerns throughout the long custodial period, especially as it neared the date of the filing of the guardianship Application.

Yet onlyafter the Application for guardianship was filed did H.F. turn to face all of those identified lifestyle concerns and try to deal with them. She knew for quite some time that the Minister was going to be forced to apply for guardianship in August of 2011 if changes inlifestyle were not made and progress noted. H.F.'s response to that imminent crisis in her life with K-A was not what it needed to

be to provide the kind of assurance to the Court that a permanent change in lifestyle was under way. 139 What has happened in this case, sadly, is that the lifestyle changes came too late. Not too late in the sense that there is a rigid time line that must be adhered to, but too late in the sense that it is impossible to form an opinion that the changes taking place in the last several months are permanent and will afford K-A the social structure she desperately needs.

If those changes such as abstinence from drugs and alcohol, a return to school, joining a gym and finding a stable home had a degree of historical permanency to them there would have been no legitimate reason for not returning K-A to H.F. With such a sudden and recent turnaround in H.F's lifestyle, it is simply too soon to know if the changes wrought represent the sort of permanent change that would inspire judicial confidence in H.F.'s ability to meet K-A's challenging and complex needs. [Emphasis added] [77] In the case before this Court, Mr. M. has been aware of the Minister’s concerns since 2020.

The guardianship application was filed in March 2022. Both parents were fully aware at that point, that they were at risk of permanently losing custody of A. Their response was to continue using drugs. Neither parent did anything to address their addictions. Neither parent was ever able to provide any negative test results. Whether this was voluntary or something beyond his control, Mr. M. prioritized his drug use over his reunification with A. [78] Mr. M. testified that he had recently stopped using. However, there was no persuasive evidence to establish that. His most recent test results were positive.

Further, I note that at the beginning of February 2022, Mr. M. had told social worker Catherine Joudry that he had been sober for two weeks. That period of sobriety did not last. [79] There is simply no evidence before the Court to confirm that Mr. M. has overcome his dependency to drugs. Only time will tell whether he has or will be able to overcome his addictions. However, for the child, time has run out. Section 55(2) of the Family Services Act stipulates that a child may remain in the care of the Minister for a maximum period of 24 consecutive months. In New Brunswick (Minister of Social Development) v.

S.B. 2008 NBCA 16 , the Court of Appeal stated: 12 Having undertaken a contextual analysis of s. 55(2) , it remains to be determined whether the clear wording of the legislation is consistent with the purpose of the Act . No one questions that the ultimate legislative objective is to see that court orders are issued in the best interests of the child, as that term is defined in s. 1 of the Act .

Of relevance to the interpretative issue at hand is definition (c), which states that, in assessing the best interests of the child, the judge must take into account "the effect upon the child of any disruption of the child's sense of continuity". It is understandable that the Legislature would want to minimize the negative impact of having a child remain in the custody of the Minister for years on end and then having custody revert to the parent(s).

After the passage of several years, it would be a traumatic event for any child to be taken from his or her primary caregivers and returned to a parent with whom that child had little or no contact during the formative years. In effect, the Act is seeking to tell non-custodial parents that there is a time limit in which to demonstrate their ability to meet their child's mental, emotional and physical needs. Courts must respect the Legislature's policy decision, even though the choice between granting permanent custody to the Minister and returning the child to his or her parent(

s) may be a difficult one. [Emphasis added] [80] I also note that in the Fall of 2022, the child was exhibiting more and more defiant behaviour vis-à-vis Mr. M. She would scream, cry and spit in his face when he tried to discipline her. At times, she even laughed. Having lived outside the home for almost three years, Mr. M. was no longer a person of authority. He was no longer seen as a parental figure. [81] The fact that there was a supervisor present at all visits was a constant reminder that the child was not safe with her father, that he was not in charge or perhaps that he was not competent to parent.

The Minister is not to blame, supervision was necessary, but it reinforces the notion that after a certain period of time, it is no longer in the child’s best interest to return to the care of the parents. Too much time has passed. Parents cannot expect to simply pick up where they left off. [82] I now turn to the criteria outlined at

section 1 of the Act to determine whether it would be in the child’s best interests to grant a guardianship order. (

a) The mental, emotional and physical health of the child and the need for appropriate care or treatment, or both. [83] The child A. was not quite two years old when she was placed in the care of a family friend in April 2020. She has not been in the care of Mr. M. for almost three years. Since then, her mental, emotional and physical needs have been met, in large part, by her foster parents. Mr. M.’s ongoing struggles with drug addiction have prevented him from being able to meet A.’s needs. [84] Mr. M. has undergone at least 44 drug screens since 2020. He has tested positive for methamphetamine each time.

He also regularly tested positive for cocaine. He never once had a negative drug screen. He confirmed using crystal meth daily for the past 6 months. He also tested positive for cocaine 15 times during that period, including his most recent drug screen dated January 10, 2023. Mr. M. testified that he now uses marijuana daily in order to compensate for his decreased use of crystal meth. [85] At trial, Mr. M. argued there was no evidence to establish that his parenting ability was compromised by the use of drugs. I reject that argument. He struggled to stay awake and fell asleep during some visits.

He acknowledged that his drug use caused him to stay up all night under the effect of crystal meth. A return of the child to his care would require him to parent 24 hours per day. Parents do not “punch out” when a child goes to sleep. They continue to be responsible at all times. [86] More importantly, this is not a lifestyle that is conducive to raising a child. A. needs a dependable caregiver who will be able to ensure that all her needs are met on a daily and full-time basis. There is no evidence to support a conclusion that Mr. M. can do so.

On the contrary, his evidence is that he increased his drug use about one month after a plan was put in place whereby he would be the children’s sober caregiver when Ms. K. was using. Further, in the last three years, he was never able to progress beyond supervised visits.

(

b) The views and preferences of the child. [87] Given the age of the child, her views and preferences could not be ascertained with any degree of certainty or reliability. (

c) The effect upon the child of any disruption of their sense of continuity. [88] It has been almost three years since A. has been in the care of the parents. She has been living with her current foster family for a longer period of time than she lived with her parents. To return A. to the care of Mr. M. in the hopes that things would work out with both his sobriety and his housing would be nothing short of an experiment and would put A. at great risk of an eventual return to the care of the Minister. Mr.

M. has not been able to demonstrate any period of sobriety over the past three years. [89] The Court must strive to establish stability and permanency in her life. Although the Minister’s plan will bring about significant change, it offers a greater likelihood of permanency and stability in the long term. (

d) The love, affection and ties that exist. [90] The evidence confirms that there is a strong bong between A. and the parents. According to her foster mother, A. is more attached to her mother than her father. [91] The Minister does not dispute that A. loves her father and that he loves A. However, as has been stated time and time again, love is not enough. In New Brunswick (Minister of Family and Community Services) v. C.K. , 2005 NBQB 43 , a decision where the Court granted guardianship, Justice Robichaud stated at paragraph 52: The mutual love and affection between C.K. and the child is beyond dispute.

Tragically, this is a case where love is not sufficient. In my view, the benefits flowing from this love and affection are significantly undermined by the mother's inability to be there for her son on a consistent and reliable basis so that a secure bonding and attachment can be achieved. The mother has had all of the best intentions of the world. Unfortunately, her resolve has been weakened by her addiction. (…) [Emphasis added] [92] A similar sentiment was expressed by the New Brunswick Court of Appeal in New Brunswick (Minister of Social Development) v. G.B. , 2012 NBCA 62 . [93] Sadly, Mr.

M.’s love for the child has been undermined by his addiction. (

e) The merits of any plan proposed by the Minister under which he would be caring for the children, in comparison with the merits of the children returning to or remaining with the parents. The Minister’s plan [94] If a guardianship order is granted, the Minister has individualized plans for D. and A. D. will transfer to the child care program and continue to reside with his current foster family. This is where he has resided since September 2020 and he appears to be doing well there. He is very familiar with this foster family having lived with them in the past.

He does his schoolwork, has good communication with his foster mother and has plans for the future. [95] The Minister’s plan for A. is to find an adoptive family that can provide her with long-term stability and security. The father’s plan [96] Mr. M. presented a plan whereby A. would be returned to his full-time care and the two would reside at a friend’s home. The Court received very little evidence regarding this living arrangement. Because his plan only materialized during trial, his social worker had not been able to inspect the home to ensure it was a safe and suitable residence.

We know that it is a two-bedroom home in need of renovations, the extent of which is unknown. In fact, his plan for housing relies largely on the generosity of a friend with whom he had no contact for a period of 10 years. [97] Mr. M. proposes to reside in Kingston, a rural community with no public transportation. He has neither a vehicle, nor a driver’s license. He has no support system to speak of. He has one friend who is supporting his sobriety but according to Mr.

M, she will soon be returning to Alberta. [98] Overall, the Minister’s plan offers more stability and permanency for the child and will ensure that her needs are met. While Mr. M. has the best of intentions, his plan is fraught with risk and uncertainty. (

f) The need to provide a secure environment that would permit the child to become useful and productive members of society through the achievement of their full potential according to their individual capacity. [99] Over the past three years, Mr. M. has been unable to make the necessary changes to provide and maintain a safe and drug-free environment for A. Mr. M. testified that until very recently, he surrounded himself with drug users and known drug dealers. He indicated that by moving to Kingston, he left his old life behind. Time will tell whether Mr.

M. succeeds in remaining sober but exposing the child to substance abusers is not a safe environment for a child, nor is it an environment where a child can flourish. [100] In New Brunswick (Minister of Social Development) v. S.T. , 2014 NBQB 24 , Justice Noble wrote as follows: A secure environment starts with a stable home, preferably one that will not change regularly as the parents run out of money. A stable environment is one where there is enough to eat. A stable environment is one that involves love, caring, kindness and avoidance of abuse.

[101] In this case, Mr. M.’s living arrangements are tenuous. His financial circumstances are precarious. During the Minister’sinvolvement, Mr. M. requested bus passes to attend visits and a requisition for groceries so he could provide food for the child duringvisits. Meanwhile, he spent more than half of his monthly income on drugs. Money which would have otherwise been available to meetthe needs of the child was used to purchase drugs. [102] According to the foster mother, A. does well when things are stable. She struggles when things are unpredictable. This wasobserved when the parents missed visits.

A. has been described as a bright child. She will be starting school this Fall. She needs tofocus on her education and she needs a safe and stable environment to do so. There is no evidence that Mr. M. would be able to providethe routine, stability and structure needed to meet the child’s needs and allow her to reach her full potential. (

g) The child's cultural and religious heritage. [103] This factor is not at play in this case. Conclusion regarding guardianship: [104] Having considered all of the evidence, I am of the view that the child’s security and development would be at risk if she wasreturned to the care of the father and I am satisfied that it is in her best interests that a guardianship order be granted. (ii) Should there be a right of access? [105] Mr. M. has requested that a right of access be preserved if a guardianship order is granted. The Minister is opposed. [106] In D.S. and A.C. v.

The Minister of Social Development, 2021 NBCA 25, the Court of Appeal reiterated the state of the lawwith regard to post-guardianship access: [63] 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), Gonthier J., writing for the Court, was clear. He writes: My consideration of whether access should be granted is based on the following principles. First, there is no inconsistency in principlebetween a permanent guardianship order and an access order. Second, access is the exception and not the rule.

Third, theprinciple of preserving family ties cannot come into play in respect of granting access unless it is in the best interests of the childto do so, having regard to all the other relevant factors. Fourth, an adoption, which is in the best interests of the child, must notbe hampered by the existence of a right of access.

Fifth, access should not be granted if its exercise would have negative effects onthe physical or psychological health of the child. [para. 39] [64] I add here the fact the Minister argues that ongoing access between a parent and child may hinder the adoption process should nottake priority over access, when a court concludes it is in a child's best interests to continue to have a relationship with his or her parents(see M.A.G., Re. (1986), (NB CA), 73 N.B.R. (2d) 443, [1986] N.B.J. No. 126 (QL); Nouveau-Brunswick (Ministrede la Santé et des Services communautaires) v. L.L., [1997] N.B.J.

No. 417 (QL); Nouveau-Brunswick (Ministre de la santé et desServices communautaires) v. L.L. et N.L. (1990), (NB QB), 109 N.B.R. (2d) 202, [1990] N.B.J. No. 727 (QL)). [65] In J.C. v. Minister of Families and Children, 2020 NBCA 24, [2020] N.B.J. No. 126 (QL), the Court was asked to overturn ajudge's decision to make a guardianship order with no right of access to the father. The father argued the judge had "supplanted" the bestinterests of the child analysis with minimal evidence an access order would impede the adoption of the children.

In rejecting the father'sargument, we concluded the decision not to grant the children access to their father was not exclusively anchored to the adoption issue,and we opined the preservation of access following a guardianship order does not hinge exclusively on whether the adoption processwould be hampered (para. 16). The Court has affirmed these principles in The Minister of Social Development v. G.B., F.H. and R.O.,2012 NBCA 62, 392 N.B.R. (2d) 209; N.J.P. v. The Minister of Social Development, 2012 NBCA 3, 382 N.B.R. (2d) 245; C.A. v.Minister of Families and Children, 2018 NBCA 67, [2018] N.B.J.

No. 246 (QL). [66] The Supreme Court confirmed that access is the exception, and not the rule, in this context. Gonthier J. quoted from this Court'sreasoning in M.A.G., Re., where Hoyt J.A. (as he then was) concluded that it is only in rare situations that access would be ordered. Thefollowing principles emerge from Gonthier J.'s decision: a. There is no inconsistency in principle between a guardianship order and an access order; b. While a liberal

interpretation of the Act is appropriate, the best interests of the child are the primary consideration and the preservationof family ties is subordinate (para. 46); c. 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; d. 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 e.

Access should not be granted if it would have a negative effect on the physical or psychological health of the child (para. 51). [Emphasis added] [107] As previously stated, Mr. M. agrees that any post-guardianship access with D. should simply be left at his discretion. I notethat at times, there has been conflict between Mr. M. and D. They have not always gotten along. In any event, counsel agreed that given

his age, there was no need for me to address this issue. [108] As regards the child A., the evidence confirms that there is a strong bond between her and Mr. M. and while he has missed a fair number of visits, he has seen her several times per week since she has been in the care of the Minister. Given her age, her views and preferences could not be ascertained although the evidence of family support workers confirm that she was usually very excited to see her father.

Terminating access would disrupt that sense of continuity. [109] These factors must be balanced against the Minister’s plan to proceed with an adoption which will provide the child with stability. Lana Irish is employed by the Department of Social Development and is the adoption supervisor for the St. Stephen to Sussex area. She testified that post-guardianship access could limit the pool of potential parents available to adopt.

She testified that potential parents are sometimes deterred when a biological parent only exercises sporadic access because they fear the emotional impact and further trauma it could cause to the child. She testified there is also heightened concern when a biological parent has a history of volatile, aggressive, violent or intimidating behaviour or a history of criminal behaviour. [110] In this case, the evidence shows that Mr. M. regularly missed visits in recent months and that this was difficult for the child although she became accustomed or resigned to it over time. Since the Minister became involved, Mr.

M. has shown minimal engagement. At times, he displayed hostility towards family support workers when they tried to address certain concerns. I do not expect his attendance, his behaviour or his engagement to improve post-guardianship. [111] Mr. M. acknowledged at trial that he did not like it when A. referred to her foster parents as “mom” and “dad”. When asked how he would react post-adoption, he simply indicated that he would have to be okay with it, a statement which gave the Court little comfort.

Several times during visits he told family support workers not to tell him how to parent his own child. [112] Furthermore, while Mr. M. claims to be sober, whether he will be able to maintain sobriety is unknown. His most recent drug screen was positive for amphetamine, methamphetamine and cocaine. Ms. Ferris expressed concern about Mr. M.’s drug use post- guardianship when there will be even less incentive to stay sober. That is a very legitimate concern. A child should not be exposed to a parent’s deeper descent into drugs.

Doing so would have a negative impact on her emotional well-being. [113] Having weighed all of the evidence, I find that preserving a right of access with Mr. M. would not be in the child’s best interests. This is not a situation where the benefits outweigh the potential concerns. More importantly, there was simply no evidence before the Court of any exceptional circumstances which would warrant a preservation of access between A. and Mr. M. [114] Finally, the Minister wishes to preserve access between D. and A. Ms. Irish confirmed that the Department would match A. with a family that was open to sibling access.

She testified that most adoptive families are open to such access. Both Ms. K. and Mr. M. agreed with this request, and it is hereby granted. V. CONCLUSION AND DISPOSITION: [115] Pursuant to subsection 56(1) of the Family Services Act , the Minister is granted guardianship of the child A. No right of access is preserved between the child and the respondent, T.M., nor between the child and the respondent, M.K. [116] Pursuant to subsection 56(1) of the Family Services Act , the Minister is granted guardianship of the child D.

Pursuant to the agreement reached between the Minister and D., a right of access is preserved between M.K. and D., to be exercised at the discretion of the Minister and in accordance with the best interests of the child, taking into account the child’s wishes. [117] A right of access is preserved between the children, D. and A., such access to be exercised in accordance with their best interests. DATED at Saint John, New Brunswick this _____ day of February, 2023. ___________________​​​​​​​​​_____________ Chantal N. Daigle Justice of the Court of King’s Bench of New Brunswick - Family Division