THE MINISTER OF SOCIAL DEVELOPMENT, Applicant, – v. –, 2023 NBKB 201

FDM-437-2023 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF MONCTON Date: November 24, 2023 Neutral Citation: 2023 NBKB 201 BETWEEN: THE MINISTER OF SOCIAL DEVELOPMENT, Applicant, – and – M. A.-M. B., B.P.O and T.L., Respondents. DECISION BEFORE: Madam Justice Marie-Claude Bélanger-Richard AT: Moncton, N.B. DATES OF HEARING: November 6, 7 and 8, 2023 DATE OF DECISION: November 24, 2023 APPEARANCES: Karen LeBlanc for the Applicant Marie-Hélène Chapdelaine Gauvin for the Respondent M. A.-M. B. Zara Morrison for the Respondent T.L. Christine Drapeau as Counsel for the children

Summary: Guardianship – Concerns regarding mental health, domestic violence, substance abuse, lack of stability, lack of consistency regarding services, poor judgment, and lack of routine BÉLANGER-RICHARD, J.: INTRODUCTION

[1] Having left her children, aged 2 and 1, with an unfit caregiver, the mother (the Respondent M. A.-M. B.) agreed to sign a SafetyPlan with the Minister of Social Development. Under this Safety Plan, the two children were placed in the care of a third party. Over thenext four months, the Minister offered various services to the mother and the children were returned to their mother. [2] Unfortunately, less than two months later, the Minister had to intervene again and take the two children into protective care. Since that time, the Minister alleges that numerous concerns have not been addressed by the mother.

As a result, the Minister is nowrequesting the permanent care of the children. [3] There are two other Respondents named in these proceedings. The Respondent B.P.O. is the biological father of the oldestchild. He lives outside the country, has never been involved in the child’s life, and has not participated in these proceedings. TheRespondent T.L. (T.L.) is the biological father of the youngest child. He has not been involved in the child’s life until recently. [4] Both the mother and T.L. oppose the Minister’s application but recognize that they need time to be able to care for the children.

Therefore, they request that an earlier order granting custody of the children to the Minister be extended for a period of up to six months. HEARSAY EVIDENCE [5] Before proceeding to the analysis necessary to determine the issues in this matter, I must address a preliminary objection raisedat the outset of the hearing. Counsel for the mother objected to various paragraphs in the affidavits submitted by the Minister on thegrounds that they constituted hearsay evidence and were inadmissible.

A list of these impugned paragraphs was provided to the Courtand to the parties. [6] In the course of the submissions on this issue, counsel for the Minister conceded that most of the paragraphs were not offered asevidence for the truth of their contents but merely to provide context for the actions taken by the Minister. With respect to the otherparagraphs containing hearsay, the Minister undertook to call the necessary witnesses. [7] In New Brunswick (Minister of Social Development) v.

C.P., 2022 NBKB 228, Justice Delaquis discussed the use of “referrals”or “anonymous sources” in child protection cases and relied on the following decision, DCP v. B.G. and T.W., 2019 PESC 37 where the Court said as follows: [17] Counsel for the parents raised concerns regarding the inclusion of so-called “anonymous reports” being presented on behalf of theDirector. There is no question confidential anonymous reports are an integral part of the child protection scheme. The ultimate goal ofcourse is to protect children.

These reports trigger an obligation on the Director, and, upon investigation, concerns may - or may not -result in the Director having protection concerns. As such, concerns may - or may not - be substantiated. However, while theseconfidential anonymous reports are an integral part of the child protection scheme, I reiterate, as has been observed by other judges, atthe stage of a hearing, these unsubstantiated confidential anonymous reports have no evidentiary value and are, arguably, prejudicial toparents. As noted by Mitchell J.A. in DCP v.

C.P. & T.P., 2014 PECA 18, anonymous and confidential reports may very well beaccurate; or, they may be based on a misconception of the facts; or, they may be completely false. Further, although the reports providethe Director with an obligation to act and investigate, “the details of the report, are, at law, little better than rumour and have no weight”(para. 49).

I reiterate the observations of Mitchell J.A. [8] In his decision at paragraph 79, Justice Delaquis concluded that hearsay evidence may be admitted for the limited use ofcompleting the narrative or putting things in context as long as the probative value outweighs its prejudicial effect and I agree with hisconclusion that reads as follows: In essence, hearsay evidence should not be relied upon for the truth of its content in any matter, including for the determination of crucialissues in child protection hearings.

However, “[H]earsay may be admitted not for the proof of its contents but to complete the narrativeor to put things in context. This exception to the hearsay rule involves a weighing of the probative value of the evidence versus itsprejudicial effect.”: DCP v. C.P. & T.P., 2014 PECA 18, at para. 48. Information from primary sources that provides context, or recordsmade from trustworthy circumstances, may be weighed in the decision-making process. [9] In the present matter, I decided not to consider any of the affidavit evidence that relies on referrals or anonymous sources for thetruth of their contents.

I told the parties that I would only consider that a referral was received by the Minister about a particular event orincident but not that the incident or event happened necessarily and/or the way it was reported by the referral source. No prejudicialeffect was argued in that regard.

[ 10 ] As to the hearsay evidence for which the Minister said they would call witnesses, I only considered the evidence when the appropriate witness came to testify. ISSUES [ 11 ] The present matter raises the following issues:

a) what order is in the best interests of the children A. and A.-M.?

b) if a guardianship order is granted, should a right of access be reserved to the children A. and A.-M.? FIRST ISSUE – BEST INTERESTS OF THE CHILDREN [ 12 ] The sole consideration for the Court in determining whether to grant a guardianship order is the best interests of the children (see section 53(2) of the Family Services Act ).

Section 1 of the Act provides a definition of “best interests of the child” and gives a list of factors to consider: “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 to whom access to the child is granted and, where appropriate, each sibling of the child and, where appropriate, each grandparent 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 the child 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 through the achievement of his full potential according to his individual capacity; and (

g) the child’s cultural and religious heritage; [ 13 ] In doing the analysis of the best interests of the children, the Court must adopt a child-centered perspective; in other words, the perspective of the inquiry is not that of the parent ( C.V. v. New Brunswick (Minister of Social Development) , 2015 NBCA 28 ). [ 14 ] Prior to 1999, the

Preamble of the Family Services Act stipulated that the children should only be removed from parental supervision, either partly or entirely, when all other measures were inappropriate . Now, the

Preamble reads as follows: Whereas it is accepted that parents have responsibility for the care and supervision of their children and that children should only be

removed from parental supervision in accordance with the provisions of this Act ; [Emphasis added.] [ 15 ] As explained by our Court of Appeal in F.(J.) v. E.(T.) , 2010 NBCA 14 , this legislative change supports the view that the best interests of the children is the only and sole consideration at play in determining proceedings brought under the Family Services Act . At paragraph 23, Quigg J.A. stated: 23 […] Previously, the

Preamble stated that a child should not be removed from parental supervision, unless "all other measures are inappropriate", which Chief Justice Richard interpreted to mean unless the child's safety is in danger pursuant to s. 31(1) of the Act . This wording is no longer included in the

Preamble, and is not the law in the province of New Brunswick today. As pointed out by counsel for the respondent, the

Preamble relied upon by Chief Justice Richard was amended in March of 1999, and in its present form validates the view that the best interests of the child are paramount to all other considerations, including the family unit. [Emphasis added.] [ 16 ] Therefore, contrary to the mother’s submissions, the Minister does not have to prove that other avenues have been exhausted before a guardianship order is granted.

The Minister’s burden of proof is to demonstrate, on a balance of probabilities, that a guardianship order is in the best interests of the children. [ 17 ] However, because the children have not been in the Minister’s care for the maximum period of 24 months, I have other options than a guardianship order (see MSD v. E.C.V. and S.M., 2019 NBQB 126 (N.B.Q.B.) and MSD v. K.L. and J.W. , 2019 NBQB 228 (N.B.Q.B.) ).

Consequently, what the mother and T.L. proposes as part of their respective plan, that is, an extension of the previous custody order for a period of up to six months, can be a viable option as long as it is in the best interests of the children. [ 18 ] I plan to review the evidence that I find relevant in this proceeding first with respect to the mother and then with respect to T.L. before proceeding to an analysis of what is in the best interests of the children.

EVIDENCE REGARDING THE MOTHER [ 19 ] The Minister’s involvement began in February 2022 when the mother left her two children, aged 2 and 1, with an unfit caregiver. While the Minister suspected the mother of drug use, this concern was not substantiated at the time. The mother told the social worker Katherine St-Onge that she had not used drugs for a month, although she had slipped recently. Ms. St-Onge observed nothing to indicate that the mother was using drugs at that time. [ 20 ] Over the next four months, the mother admitted to feeling overwhelmed and anxious, and to having occasional panic attacks.

She sought help from mental health services. She completed a mental health assessment and was place on a waiting list to see a psychologist. [ 21 ] As things were going well between the mother and the children and the Minister was satisfied with the mother’s progress and engagement, the children were returned to the mother on May 5, 2022. However, the Minister insisted on having a few more supervised visits and meetings with the mother to ensure that the children continued to receive appropriate care.

While the mother initially agreed to this plan, she expressed dissatisfaction by failing to attend some supervised visits and by failing to communicate with the social worker assigned to her case, Katelyn Hawkins. [ 22 ] In June and early July 2022, the Department received information that the mother had again begun leaving her children with others. On July 5, 2022, Ms. Hawkins attended an apartment where she found the two children in the care of a person who was a friend of the mother. Ms.

Hawkins observed that A., the oldest child, was wearing clothes that were too big for her and were tied up with hair ties, and that the youngest child, A.-M., was naked. Ms. Hawkins contacted the mother to inform her of the situation. The mother began to scream, and because she was out of town, she told Ms. Hawkins that she would be there in 20 minutes. The mother did not show up in that time frame and Ms. Hawkins took the children into protective care. Ms. Hawkins testified that she had to borrow clothes for A.-M. from the mother’s friend.

The children had been with this person for a few days. [ 23 ] In addition to the mother’s poor judgment and neglect in leaving the children with others, as described above, other concerns have emerged since the Minister became involved. According to the Minister, these concerns remain unaddressed by the mother. The mother acknowledges all of her shortcomings but is determined to change and be the mother her children deserve.

[ 24 ] I will now review each of the Minister’s concerns regarding the mother. Mental health issues [ 25 ] By all accounts, the mother had a troubled past and suffered trauma. At the age of 9 or 10 years old, she was taken into protective care by the Minister and the Minister obtained her permanent care. The mother refused to give details about this period of her life, explaining that she blocked many things from her past. She only expressed that it was difficult to cope without knowing her father and her side of the family, and that she did not know who she was.

Her mother, P.D., testified that during those years, the mother had mental health problems and spent 2 or 3 months in a psychiatric ward. [ 26 ] At the beginning of the Minister’s involvement in March 2022, the mother admitted that she was overwhelmed, anxious and suffered from occasional panic attacks. She sought help from mental health services. She completed a mental health assessment and was placed on a waiting list to see a psychologist. [ 27 ] In late August 2022, the mother admitted to Ms. Hawkins that she had been using cocaine and trashing her own apartment. During their meeting, Ms.

Hawkins observed that the mother appeared dysregulated and had bruises on her face. [ 28 ] In late November 2022, Ms. Hawkins was informed by the mother that she and her boyfriend, , had been into a fight and broke up, that she was staying with a friend, that she was sober from drugs, but that her drinking was causing her problems. The mother also told Ms. Hawkins that she had slashed her wrists because Mr. D.S. had told her that she was a bad mother and that her children were in a good place and should remain in the Minister’s care. Ms.

Hawkins and the mother discussed a plan and the mother agreed to work with the social worker. A few days later, however, Ms. Hawkins was informed by the mother that she had moved back in with Mr. D.S.. [ 29 ] During another meeting with Ms. Hawkins in December 2022, the mother struggled to understand her problems but promised to self-refer to mental health services. [ 30 ] In late January 2023, the mother attended a meeting via Zoom with the Mental Health Services in Richibucto and was again placed on a waiting list for individual therapy. Due to the mother’s move to Moncton in November 2023, Ms.

Hawkins suggested that the mother contact Mental Health Services in Moncton. [ 31 ] At the hearing, the mother testified that she had had 2 or 3 sessions with Mental Health Services to date. The mother asked for weekly sessions but at this time, she can only have biweekly sessions. She plans to continue the therapy until she is healed. Domestic violence [ 32 ] Since the Minister’s involvement, the mother has been in an unstable and volatile relationship with D.S.. Mr. D.S. has an 11- year-old daughter; they both live in Notre-Dame. [ 33 ] Initially, Mr.

D.S. attended some visits with the children, but it was noted that he was not very engaged. It was also observed that the mother spent time on her phone arguing with Mr. D.S. when he was not present. Ms. Hawkins attended one visit in May or June 2022 where Mr. D.S. and the mother were present; she testified that she saw them arguing and the child A. looked very tense and somewhat concerned. In light of this situation, Ms. Hawkins told the mother that she and Mr. D.S. needed to attend a domestic violence program. They both refused and since then, Mr.

D.S. has not been allowed to visit the children. [ 34 ] As described above, the mother and Mr. D.S. argued and broke up in late November 2022. The mother slashed her wrists because of what Mr. D.S. had said to her. A few days later, the mother moved back in with him. [ 35 ] On January 17, 2023, the mother told Ms. Hawkins that she no longer wanted a relationship with Mr. D.S. because he was ruining her life. Ms. Hawkins suggested community resources to help her find housing. A few days later, Ms. Hawkins learned that the mother had resumed a relationship with Mr. D.S..

[ 36 ] In late January 2023, the mother said that her relationship with Mr. D.S. was improving. [ 37 ] However, in March 2023, the mother asked that visits with the children be put on hold due to ongoing conflicts between her, Mr. D.S., and his parents. A few days later, she told Ms. Hawkins that she had left Mr. D.S. and blamed him for not having her children. The mother was apparently living with her sister. The next day, Ms. Hawkins learned that the mother was still involved with Mr. D.S.. The mother denied telling Ms. Hawkins that her relationship with Mr.

D.S. was over. [ 38 ] Although she mentioned that her relationship with Mr. D.S. was improving in April 2023, the mother still requested that visitation with the children be put on hold. The mother explained to Ms. Hawkins that she was pregnant and needed time to get her life in order. At some point, the mother terminated the pregnancy. [ 39 ] On June 25, 2023, the mother and Mr. D.S. were involved in a serious domestic violence altercation. The mother told Ms. Hawkins that Mr. D.S. repeatedly slammed her ankle into the door and banged her head on the floor, and that she was covered in mud.

The mother apparently left Mr. D.S. for good this time and she asked for services. The mother mentioned to Ms. Hawkins that she had gotten a job at a bar, but she was not sure if she would be able to maintain her sobriety if she worked there. Ms. Hawkins suggested that the mother to call Crossroads for Women and make an appointment for the next day. When Ms. Hawkins arrived to pick up the mother the next day, the mother refused to go to Crossroads for Women and said that she was going to stay with a friend.

Her plan was to save up money and to get her own place. [ 40 ] However, in early August 2023, the mother told Ms. Hawkins that she was back living with Mr. D.S. and that they were trying to work things out. [ 41 ] Then, on November 2, 2023 (four days before the hearing was to begin), the mother told Ms. Hawkins that she had left Mr. D.S. and was now living with her aunt T.B.. When asked at the hearing why she had moved in with her aunt, the mother said that there was more to life than dwelling on the past, that Mr.

D.S. was not the answer, and that she could be a better mother. [ 42 ] The mother is six weeks pregnant. At the hearing, she was unsure if she should keep the baby. She realizes that with the baby, there will still be a bond between her and Mr. D.S.. Mr. D.S. is aware of her pregnancy and wants the mother to have an abortion. [ 43 ] Over the past 19 months, the mother has broken up and reconciled with Mr. D.S. at least five times. The mother testified that the longest breakup she has had with Mr. D.S. was two weeks. At the time of the hearing, it had been less than a week since her breakup with Mr.

D.S.. [ 44 ] The mother now admits that her relationship with Mr. D.S. was toxic and that Mr. D.S. was physically violent toward her. Poor judgment [ 45 ] Ms. Hawkins testified that, in addition to leaving her children with various people, the mother showed poor judgment in not seeking domestic violence counseling in light of her relationship with Mr. D.S. and the impact of that toxic relationship on the children. [ 46 ] At the hearing, the mother admitted that she exercised poor judgment in choosing the wrong person to care for her children in February 2022.

However, she denied that she left her children with anyone who was available. She insisted that the children knew their caregivers and that the caregivers were friends of hers. [ 47 ] The mother admitted that her relationship with Mr. D.S. was toxic. She mentioned that her actions were affecting the children, but that she could not change overnight. She did not mention the possibility of attending a domestic violence program.

Transiency and lack of appropriate stable housing [ 48 ] Since the mother was evicted from her apartment in September 2022, she has not had stable housing. She has been in and out of Mr. D.S.’s residence and Mr. D.S.’s residence has never been approved for visitation. [ 49 ] Less than a week before the final hearing, the mother left Mr. D.S.’s home and she is now living with her aunt. The mother testified that she plans to stay with her aunt, T.B., until she gets back on her feet and can get her own place. She also mentioned that another option is to move in with her mother, Ms.

P.D.. [ 50 ] The mother currently receives income assistance benefits and child tax benefits. She has prepared her resume but has not yet applied for a job. She said that she had a job in mind, but then added that any job would do. She has never worked since she had her children, more than four years ago. She explained that she tried to have a job when she had the children, but it was too much. At this time, she wants to focus on her children and prioritize attending parenting and self-esteem sessions. Drug and alcohol abuse [ 51 ] In late August 2022, the mother admitted to Ms.

Hawkins that she had used cocaine. [ 52 ] In late November 2022, the mother said that she was sober from drugs, but that her drinking was causing her difficulties. [ 53 ] In late January 2023, the mother agreed to submit to sobriety tests. Ms. Hawkins asked an agency to conduct 2 or 3 sobriety tests per month. Between February and May 2023, all attempts to administer sobriety tests done failed. Ms. Hawkins discontinued the sobriety tests because the mother was not engaged with them and there were other priorities. [ 54 ] At a meeting on May 31, 2023, the mother told Ms.

Hawkins that she was pregnant, and she admitted to using cocaine and drinking alcohol during her pregnancy. [ 55 ] However, by September 2023, the mother said that she drank occasionally and did not use drugs. [ 56 ] Ms. Hawkins testified that the mother told her that she was using cocaine as a coping mechanism. The mother also admitted to Ms. Hawkins that her alcohol use escalated with incidents of domestic violence. The last time when the mother abused alcohol was on June 26, 2023, when she and her boyfriend, D.S., had a major argument. [ 57 ] Ms.

Hawkins testified that the mother was always sober during their meetings and that no visit with the children was terminated because of suspected drug use or intoxication. [ 58 ] According to the mother, she has overcome her problems with drugs and alcohol, and she has been sober for approximately four months. She has had lapses in the past, but again, it was a long time ago. She denies using cocaine as a coping mechanism. The mother is adamant that she has not used drugs and/or alcohol since becoming pregnant.

Lack of engagement with services [ 59 ] The services provided by the Minister included supervised visits and parenting classes. [ 60 ] By February 2023, visits between the mother and the children were occurring four times a week. The mother was making progress in communicating with Ms. Hawkins and attending her visits. She was also on a waiting list for mental health services. [ 61 ] However, in March 2023, the mother requested that her visits be suspended because of her conflicts with Mr. D.S.. Although things with Mr.

D.S. appeared to be improving in April 2023, the mother still insisted on not having visits with the children at that time. The mother explained that she needed additional time to get her life in order.

[ 62 ] In May 2023, Ms. Hawkins decided to reduce the visits to twice a week for a duration of 2 hours each and to require the mother to confirm her attendance prior to the visit. In May 2023, 10 visits were scheduled, and the mother attended only one. In June 2023, 9 visits were scheduled, and the mother attended 3 of them. As a result, Ms. Hawkins further reduced the number of the mother’s visits allowing only one visit per week for a duration of 2 hours. In July 2023, the mother attended only one visit out of 4 and she was late 20 minutes at the visit.

In August 2023, the mother attended 2 of the 5 scheduled visits. [ 63 ] In late August 2023, the mother inquired about having more visits with the children. Ms. Hawkins informed her that they would explore additional visits once she was engaged in her Case Plan and addressing her mental health and substance abuse. [ 64 ] In September 2023, Ms. Hawkins acknowledged that the mother was spending quality time (playing and reading books) with both children, but the mother was not always on time for the visits.

For example, she was about 30 minutes late for A.-M.’s birthday. [ 65 ] Since September 2023, some visits have gone well and others have not. According to Ms. Hawkins, there is no consistency. The mother admitted that her attendance at visits has not been consistent since September 2023. She explained that she was stressed out because of the arguments with Mr. D.S.. She wished she could change the way that things have been. [ 66 ] The mother testified that she had no excuse for missing visits with her children and not confirming her attendance. She admitted that the children were affected by not seeing her.

She is convinced that she can fix this problem in the future. [ 67 ] Parenting sessions were offered to the mother on three different occasions since June 2022. The last attempt was in September 2023 at the mother’s request. Unfortunately, the mother never attended any of the scheduled parenting sessions. The mother testified that she did not prioritize the parenting sessions and was stubborn in her refusal to attend. She now recognizes that she needs to learn how to parent her children. [ 68 ] Another problem Ms. Hawkins identified was a lack of communication with the mother.

The mother did not always tell her where she lived, and her cell phone was not always reliable. [ 69 ] Finally, Ms. Hawkins referred the mother to various agencies and community resources, and she even made appointments to help the mother. The mother did not take advantage of these services. Lack of appropriate support [ 70 ] The mother has not had consistent and adequate support. Friends and family members come and go in her life. Ms.

Hawkins testified that there was conflict and tension between the mother and her support system. [ 71 ] While family members expressed interest in caring for the children, they never completed the necessary steps to be considered for a kinship agreement. Ms. P.D. (the mother’s mother) also mentioned that she was interested in making an application for custody and that she went to see a lawyer. However, she never filed an application in that regard. [ 72 ] The relationship between mother and daughter has not always been easy and there has been some mistrust between them. However, if her daughter cooperates, Ms.

P.D. is willing to find a place for her, her daughter, and the children to live together. [ 73 ] Ms. P.D. testified that she can help her daughter as long as she (her daughter) does not have a relationship with Mr. D.S.. Ms. P.D. believes that her daughter needs to rebuild herself after this abusive relationship with Mr. D.S. and that she would benefit from sessions on self-esteem and parenting. The mother agrees to these conditions. [ 74 ] Since her daughter left Mr. D.S., Ms. P.D. has seen some positive changes in her daughter.

However, she testified that she would still not leave the children alone with their mother.

[ 75 ] Currently, Ms. P.D. receives social assistance benefits and lives with her landlord. Her last job was in 2019. Ms. P.D. testified that a friend is looking for a mini-home for her and that she can have credit and a co-signor for the purchase of a mini-home. However, she has not yet gone to a lending institution. It is obvious that Ms. P.D. wants to help her daughter and loves her grandchildren. However, there seem to be many challenges and strings attached to her offer to let her daughter and grandchildren live with her. Lack of consistency in the children’s routine and childcare [ 76 ] Ms.

Hawkins also raised concerns about a lack of consistency in routine and care because the mother allowed the children to be cared for by different people, and the mother did not appear to be following a routine that was conducive to the children’s development. Age appropriate discipline was also an issue. [ 77 ] The mother takes full responsibility for leaving her children with an unfit caregiver in February 2022. However, she does not admit that she left her children with anyone who was available. [ 78 ] During the Minister’s involvement, parenting sessions were offered and organized on three separate occasions.

Each time, the mother failed to attend the parenting sessions. The mother blamed her stubbornness for not attending the sessions. She claims that she now realizes that she needs help in this area. EVIDENCE REGARDING T.L. [ 79 ] T.L. is 27 years old. He graduated from high school. One week before the hearing, he was hired on a part-time basis at a local restaurant brewery. For now, he works weekends, but he hopes to get a full-time job. His last job before this latest one was in 2021. [ 80 ] The mother and T.L. have never had a relationship and have never lived together. T.L. is A.-M.’s biological father.

A.-M. was six months old when T.L. first saw her. He saw her two more times before these proceedings. [ 81 ] T.L. testified that whenever he wanted, he would receive photos or videos of the child, or he would see her on Facebook. T.L. never had any concerns about A.-M.’s well-being and safety because she looked happy in the photos he saw. He saw no reason to get involved. [ 82 ] Sometime in the late summer of 2022, T.L. learned that A.-M. had been apprehended by the Minister. T.L. was living in Nova Scotia at the time. He decided to return to New Brunswick in late February or early March 2023.

However, as he explained, he had criminal charges to deal with and a warrant for his arrest. T.L. was found guilty of the following charges: − Incident on May 19, 2021: assault using a weapon (bear spray) − Incident on August 14, 2021: disturbance in or near a public place and mischief (damage to property) [ 83 ] T.L. received a concurrent sentence of 24 months with supervised probation until June 2025.

The conditions of his probation include reporting to his probation officer, attending court when required, keeping the peace, being of good behavior, attending Mental Health and Addiction Services for an assessment, attending domestic violence program, and abstaining from acquiring or possessing weapons. [ 84 ] In September 2023, T.L. was assessed by Mental Health and Addiction Services and no further services were recommended. T.L. is currently on a waiting list for a Domestic Violence Program.

T.L.’s probation officer, Allydia Tingley, confirmed at the hearing that she has completed one violation report to date because T.L. failed to report to her as required in July 2023. Since then, T.L. has been inconsistent in his reporting and has been warned that this could result in additional charges. [ 85 ] Since T.L. has become involved and engaged with the Minister, he has had supervised visits and parenting sessions. The visits began in mid-September 2023 and are going well. T.L. feels a connection with his daughter A.-M.

T.L. has attended the parenting sessions, but he has complained that his teacher has not yet attended his visits with the child as she promised. T.L. plans to continue the

parenting sessions. [ 86 ] T.L.’s father (R.L.) testified at the hearing. R.L. is 64 years old and lives alone. He works full time but plans to retire next year. Prior to these proceedings, R.L. only saw A.-M. 2 or 3 times. [ 87 ] Because T.L. needed a place to have supervised visits with A.-M., T.L. informed R.L. of these proceedings 2 or 3 months ago and asked him to use his residence for the visits. R.L. agreed and he has been present for the visits. R.L. testified that his son has been attentive to the child during the visits but that he feeds her too much.

According to R.L., A.-M. seems comfortable with her father, and she calls him “Dad”. [ 88 ] R.L. mentioned that there have been trust issues between him and his son T.L. in the past and that T.L. has anger issues. R.L. is willing to provide some support, mostly emotional support, to his son. There are no plans for T.L. to move in with R.L. R.L. sees himself as a grandfather to A.-M. and feels that T.L. is responsible for caring for and raising A.-M. [ 89 ] According to R.L., three other people (his ex-wife, his ex-wife’s mother, and T.L.’s biological mother) are also willing to help T.L.

Unfortunately, these three people live outside of New Brunswick and have not been involved in the child’s life. [ 90 ] I will now turn to do the analysis of the best interests of the children in this matter. ANALYSIS OF BEST INTERESTS OF THE CHILDREN

a) The mental, emotional and physical health of the children and their need for appropriate care or treatment or both

f) The need to provide a secure environment that would permit the children to become useful and productive members of the society through the achievement of their full potential according to their individual capacity [ 91 ] Because t he evidence regarding factors (

a) and (

f) overlaps, I will consider them together. [ 92 ] A. is 4 years old, and A.-M. is 2 years old. C.H. has been their foster mother for over a year. Ms. C.H. testified that when she first arrived, A. was very quiet and lacked confidence. It was difficult to understand A. when she spoke because she whispered and mumbled. Similarly, A.-M. was very quiet and spoke only a few words. [ 93 ] Ms. C.H. has seen significant changes in the children over the past year. A. is now very loud and outgoing. She loves to sing and dance. A.-M.’s speech has improved dramatically.

Both children now show dexterity in doing activities. [ 94 ] The mother admits that in the past she did not make appropriate decisions regarding the welfare and safety of her children. She left them with caregivers for days at a time and perpetuated a toxic situation (her relationship with Mr. D.S.) that affected the children. The mother now recognizes that she needs support and guidance regarding parenting. She claims to have turned the page on her relationship with Mr. D.S.. [ 95 ] However, the mother’s situation is still unstable.

She has to figure out many important things in her personal life, such as a place to live and a job. The mother is also emotionally and mentally fragile. Less than a week before the final hearing, she left an abusive partner with whom she had been in a 2-year relationship. Over the past 19 months, she has attempted to end this relationship more than five times without any success. The longest period of separation from Mr. D.S. was two weeks. At the time of the hearing, two weeks had not passed. I am concerned that her most recent separation from Mr.

D.S. is a last-minute attempt to convince the Court that the children’s exposure to domestic violence is no longer a factor to be considered in these proceedings.

[ 96 ] While I sincerely hope that the mother will be true to her word and not return to live with Mr. D.S., she has not yet expressed any interest in attending a domestic violence program or seeking help and support regarding this toxic relationship. The mother is willing to take self-esteem classes, but this was a condition of moving in with her own mother, not because the mother thought it would benefit her.

Finally, the mother has begun some counseling, but it is not clear what goals or objectives the mother would like to work on as part of her therapy. [ 97 ] On three occasions, the mother was offered the opportunity to attend parenting sessions. She did not attend. She tells the Court that she was stubborn, and she now realizes that parenting sessions could be helpful. However, gaining knowledge pertaining to parenting skills was Objective 4 of the mother’s Case Plan. This Case Plan was put together so that the mother would know and understand what she needed to do to work toward reunification with her children.

Ms. Hawkins discussed the Case Plan with the mother several times over the past year. It is unfortunate that the mother did not realize sooner the importance of learning about parenting for the sake of her children. [ 98 ] Until recently, T.L. has not found important or necessary to be a part of his daughter’s life. While he has shown interest in caring for A.-M. and attending parenting classes, he does not seem to understand all the responsibilities of parenting.

He testified that he wanted to co-parent with the mother, and he minimized the Minister’s concerns about the mother. [ 99 ] T.L. also has many moving parts in his life at this time. He is on a probationary sentence and may face consequences for a violation report. He has just started a new job, but he is thinking about changing jobs.

He lives in a one-bedroom apartment, but he is considering moving out to have a larger apartment or living with his father for a while when he has the care of A.-M. [ 100 ] Since the children have been in the Minister’s care, they have made progress in their physical and emotional development. They have become more confident and lively. The care, attention and affection provided by Ms. C.H. has greatly benefited both children. [ 101 ] Both children are at a vulnerable age. They need and rely on a responsible parental figure to provide for their mental, emotional and physical health.

Their well-being depends on receiving appropriate care and attention on an ongoing basis. Unfortunately, neither the mother nor T.L. have convincingly demonstrated the ability to provide for the children’s needs in a consistent and appropriate manner. I consider that the children’s development, well-being and safety would be at risk in the care of the mother or in the care of T.L.

b) The views and preferences of the children [ 102 ] The children are too young for their views and preferences to be ascertained.

c) The effect upon the children of any disruption of the children’s sense of continuity [ 103 ] Prior to their apprehension, the children, despite their young age, were left with various caregivers. While the mother claims that the children knew their caregivers, the evidence convinces me that the children were left frequently and for periods of a few days.

At the hearing, the mother did not express any concern that this situation was or could have been disruptive to the children, affecting their routine and sense of continuity. [ 104 ] After the children’s apprehension by the Minister, supervised visits were offered to the mother. Because the mother lived out of town, transportation to the visits was an issue. Ms. Hawkins kept accommodating the mother by approving different locations for the visits. The mother continued to miss visits.

At some point in the spring of 2023, the mother even asked to put the visits with the children on hold because of the difficulties she was having in her relationship with Mr. D.S.. More recently, the mother has been late for visits and has continued to be inconsistent in her attendance at visits. [ 105 ] Ms. C.H. (the foster mother) has noticed that the visits between the children and the mother have had an impact on the children. When the visits with the mother were sporadic, A. would be very aggressive and it would take 1 or 2 days for her to be herself again.

When visits were canceled at the last minute and the children were on their way to the visit, A. would come back sobbing. [ 106 ] Ms. C.H. also testified that after a visit with her mother, A.-M. tended to regress a bit and talk like a baby. Until about two months ago, A. would wet the bed at night, either on the day of the visit or the next day.

[ 107 ] The mother admits that her lack of consistency and commitment to visitation has affected the children. While some visits between the mother and the children go well, it does not appear that the mother really makes it a priority to be consistently involved and present in the children’s lives. She plans to change but has not yet demonstrated a strong commitment to do so. This is of great concern given that the changes and improvements in the mother’s life are very recent. [ 108 ] Until two months ago, T.L. had seen his daughter A.-M. only three times since her birth.

He has begun to visit regularly and the reports of his visits are positive. Ms. C.H. testified that A.-M. came back from her first visit with her father with a large stuffed pony, and since then she refers to the pony whenever her father is mentioned. However, Ms. C.H. reported that A. was tearful when she saw her sister A.-M. leaving to visit T.L. [ 109 ] T.L. shows interest in caring for A.-M. and making sure that A.-M. continues to have contact with her sister A. He has not provided any details on how he would accomplish this.

His plan also includes co-parenting with the mother, but it is unclear what the parenting arrangement would be. [ 110 ] It is evident that the children’s lives have stabilized since they have been in the Minister’s care. They are striving in the routine and structure provided by the foster mother. I am convinced that prior to their apprehension, their mother’s environment and care was a source of constant disruption in their lives.

This affected their sense of security and continuity. [ 111 ] While T.L.’s visits with A.-M. are positive, they however create uncertainty and potential disruption in the relationship between A.-M. and A. T.L. does not appear to be aware of this situation. While T.L. seems committed to his daughter, he does not seem to understand the importance of consistency and continuity in the child’s life and the impact his lack of involvement until recently may have had on A.-M.

d) The love, affection and ties between the children and their parents and between siblings [ 112 ] There is no doubt that the children love their mother and that she loves them. However, Ms. Hawkins testified that the children do not appear to have a strong attachment to their mother. Ms.

Hawkins explained that she has observed the children seeking help and support from the foster mother or from her, but not from their mother. [ 113 ] Although he has shown a late interest in being involved in his daughter’s life, T.L. testified that he feels connected to A.-M., and the child appears to enjoy the visits with him. [ 114 ] However, as stated by Justice Quigg in New Brunswick (Minister of Social Development) v.

B.(G.) , 2012 NBCA 62 , at paragraph 36 : Although love and affection are important criteria to consider when assessing the best interests of the child, they are not to supersede the other factors enumerated in the definition of best interests of the child. In this case, the mother’s inability to put her child first in her life, her lack of capacity to parent and the instability of her living accommodations undermine the mutual love and affection that exists. [ 115 ] In New Brunswick (Minister of Social Development) v.

C.(N.) , 2016 CarswellNB 271 , Justice Petrie also commented on this factor and stated at paragraph 131: I have no doubt that N.C. loves her children. However, being an appropriate or “good enough” parent is more than loving your child. There is also the serious responsibility of ensuring that the children are properly taken care of. It is not a standard of perfection but one of a reasonably acceptable level. [ 116 ] At the hearing, I heard from family members, such as R.L. and Ms. P.D., who are fond of the children.

There is no doubt that they are willing to provide emotional support to the children and that they would be a great source of love and affection. [ 117 ] I also note that the children love each other, and they play well together. They have been described as being attached at the hip. They are also very proud of one another. [ 118 ] Unfortunately, the love shown and expressed by the parents and family members for the children is undermined by the other

factors that the Court must consider.

e) The merits of each party’s respective plan [ 119 ] Ms. Hawkins testified that the Minister’s plan is to keep the children together and find them a home where they will be loved, cared for and provided with attention, stability and consistency. Their needs will be met by providing a safe and secure environment through an adoption placement. [ 120 ] The mother’s plan is still in flux. She has temporary housing and she has not yet found employment. A few days ago, she ended a volatile 2-year relationship. She is just beginning to address her mental health issues.

She wants to prioritize her need for parenting skills and self-esteem. Due to the precariousness of her situation, the mother recognizes that she needs time to work on her Case Plan and proposes that the previous custody order be extended for a period of six months. She claims that she has made progress and improvement in her personal situation and in recognizing her shortcomings. Throughout her testimony, the mother repeatedly stated that she could change, but that she needed time. [ 121 ] Similarly, T.L.’s plan is uncertain. He has just started work but is already thinking about changing jobs.

He has to use his father’s house for visits as his current apartment is not suitable. He plans to save money for the next two months to rent a two-bedroom apartment. He is on a probationary sentence and has been inconsistent in reporting to his probation officer, which could have consequences. Until recently, T.L. did not feel the need to be involved in his daughter’s life. [ 122 ] T.L. plans to gradually increase his visitation with his daughter and move to unsupervised visits and overnight visits.

Because of the need for a transition period, T.L. suggests that the previous custody order be extended for a period of six months. [ 123 ] Ultimately, T.L. would like to share custody of A.-M. with the mother and ideally, they would do co-parenting. He believes that the mother deserves to have the children under her care. However, he acknowledges that the children are doing well in their foster home. While he asks to have the care of A.-M. only, he said that he does not want to split the children.

g) The children’s cultural and religious heritage [ 124 ] This is not a factor in this case. CONCLUSION [ 125 ] I acknowledge that the mother has made recent progress with her mental health issues and her commitment to her children, that she has left a toxic relationship, and that she has been open and honest about her shortcomings and her desire to change. She seemed convinced that she was now a different person. However, the mother has had many months to change, to address the various concerns, and to take advantage of community resources and family support.

At this point, I can no longer risk the children’s sense of stability and security, their mental, emotional, and physical health, and the benefits they receive from a safe environment to give the mother one last chance. The fact that the mother did not realize the need for change until the last hour clouds her progress and improvement with uncertainty and doubt. I fear the effect on the children of any further disruption in their young lives. [ 126 ] I also acknowledge that T.L. would not harm his daughter, would be attentive to her needs, and would benefit from the support of a loving family.

However, he did not seem to understand the seriousness of the Minister’s concerns and his responsibilities as a father. Given the plan that he presented for A.-M.’s care, I am concerned that in a matter of days, he and the mother would share the custody of the children without providing structure, discipline, and routine.

More importantly, I am deeply concerned that T.L. may once again find it unnecessary to be involved in his daughter’s life by allowing the mother to take care of her. [ 127 ] After reviewing the evidence and weighing the various factors, I have concluded that, on a balance of probabilities, it is in the best interests of the children that a guardianship order be granted. I must say that this is a very difficult decision to make. [ 128 ] I hope that the mother will continue to improve for her own benefit and for the benefit of her children.

I would like to point out that section 61(1) of the Family Services Act provides that where at least 6 months have elapsed since a guardianship order was made, a former parent may apply to the Court to terminate that order, provided that the child has not been placed for adoption (section 61(4)) or the guardianship has not been transferred (section 61(5)). This is an exceptional and rare measure, but it provides an opportunity for a former parent to demonstrate at a later date that he or she is able and willing to provide appropriate care for the children as long as it is in

the best interests of the children. SECOND ISSUE – POST-GUARDIANSHIP ACCESS [129] In Minister of Social Development v. V.L.C. et al., 2023 NBCA 12, our Court of Appeal reiterated the legal test applicable to adetermination of post-guardianship access as follows: 22 In D.S. and A.C. v. The Minister of Social Development, 2021 NBCA 25, [2021] N.B.J. No. 128 (QL), this Court, like other courts inthe country, noted that "access is not the right of the parent; it is the right of their child" (para. 62).

In the context of post-guardianship access, the Court drew the following principles from the reasons of Gonthier, J., rendering judgment for the Supreme Courtin 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): 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 thepreservation of 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). [130] In the present matter, the Minister opposes a right of access for the children with their parents. Ms. Hawkins gave the followingreasons for this position: i. The age of the children; ii. The lack of attachment between the children and their parents; iii.

There are no special circumstances indicating that it would be in their best interests. [131] If a guardianship order is granted, the mother asks for post-guardianship and post-adoption access for the children, relying on thebond between her and the children. The mother contends that there is no evidence that a right of access would be contrary to thechildren’s best interests and would affect their sense of security and continuity. [132] The father also requests that a right of access be preserved for A.-M. to him.

He contends that there is no indication that thisaccess would be detrimental to the child, given the development of the bond between father and daughter. [133] Having considered all the evidence, I do not see any benefit to the children in maintaining access with their parents and I do notconsider that it would be in their best interests to do so. The mother has not shown consistency in her attendance at visits, despite herclaim that she is willing to change. The missed visits have had an ongoing impact on the children.

While T.L. has shown consistency inattending visits and parenting classes, his involvement with his daughter is very recent; in the past, he did not feel the need to get

involved with his daughter; despite the child’s apprehension, it took him some time to contact the Department. Overall, his recent involvement still raises questions and doubts. I acknowledge that there is love and affection between the children, the mother and T.L. However, I do not believe that this situation is exceptional enough to warrant post-guardianship access. [ 134 ] Therefore, I am satisfied that post-guardianship access with their parents is not in the best interests of the children A. and A.-M.

DISPOSITION [ 135 ] Therefore, I make an order transferring from the Respondents to the Minister on a permanent basis the guardianship of the children A. and A.-M., including the custody, care and control of, and all parental rights and responsibilities with respect to, the children. No post-guardianship access is granted. [ 136 ] T.L. sought costs, but in light of the outcome, no costs will be awarded. DATED at Moncton, New Brunswick, this 24 th day of November, 2023. __________________________________________ Justice Marie-Claude Bélanger-Richard Court of King’s Bench of New Brunswick