IN THE MATTER of a hearing under THE CHILD v. FAMILY SERVICES ACT, 2017 SKPC 6

IN THE PROVINCIAL COURT OF SASKATCHEWAN Date: January 12, 2017 2017 SKPC 006 Location: Moose Jaw _____________________________________________________________________________ Between: IN THE MATTER of a hearing under THE CHILD AND FAMILY SERVICES ACT AND IN THE MATTER OF M. D. M. S., born June 24, 2012 and D. J. A. S., born June 17, 2013 Appearing: For the Ministry of Social Services Destiny Gibney For the parents, Phillip Ventzek For the children, Christine Hansen-Chad In order to protect the privacy of the parents and children, their names are not used in this decision. For ease of reading, pseudonyms are used. DECISION B. TOMKINS, J

[ 1 ] The Ministry applies pursuant to section 37(2) of The Child and Family Services Act (“the Act ”) for an order permanently committing Martha and David to the care of the Ministry. If the order is granted, it is the Ministry’s intention to place the children for adoption. The parents oppose the Ministry’s application and seek to have the children returned to their care. I.

HISTORY PRIOR TO THIS APPLICATION [ 2 ] S.R. (Re) [1] held, as have numerous other Saskatchewan cases, that in an application of this nature, where there have been previous orders finding the children in need of protection, the prior orders and their conclusions will be deemed to be properly made. In this case, there have been a number of orders, in all of which the children were found to be in need of protection and for all of which the parents, by their consent to the orders and accompanying Agreed Statements of Fact, have accepted that conclusion.

Therefore, the question for this court is whether the children continue to be in need of protection. [ 3 ] However, a review of those orders and their terms is nonetheless relevant to the analysis I must undertake. It provides background and also information that may be relevant to current considerations. In that context, I will review the history of the Ministry’s involvement with these children and their parents and summarize prior Orders. [ 4 ] Martha Simpson was born to Christine Edwards and Joseph Simpson on June 24, 2012. Their son David was born on June 17, 2013.

The Ministry has been involved with the family for most of the children’s lives. [ 5 ] Moose Jaw General Hospital contacted the Ministry within days after Martha’s birth, expressing concern about Ms. Edwards’s ability to provide adequate care to the child. The Ministry had also received a referral from a concerned citizen regarding the parents’ ability to care for the child. In addition, the Ministry learned that Mr. Simpson was a registered sex offender.

As a consequence, on June 28, 2012, Martha was apprehended. [ 6 ] She remained in the care of the Ministry pursuant to various consent orders until April 15, 2013. After that date, she was gradually returned to the care of her parents and resided full-time in their home by May 15, 2013. [ 7 ] On June 17, 2013, David Simpson was born. [ 8 ] The children remained with their parents, with the involvement of the Ministry, until September 29, 2014 when both children were apprehended.

The children have remained in the care of the Ministry since that date. [ 9 ] The first Order, consented to by both parents and dated September 18, 2012, was accompanied by an Agreed Statement of Facts. That document specified that the child Martha was in need of protection pursuant to

section 11(

b) of the Act and that the parents required “continued counseling to manage expectations placed on them as parents.” The parties agreed that Martha would remain in the care of the ministry for a period of three months, subject to conditions requiring: • Ms. Edwards to complete a Parenting Assessment; • Mr.

Simpson to complete a Re-Offender Risk Assessment; • the provision and receipt of in-home support; and • participation in parenting classes as recommended by the Ministry. [ 10 ] That Order was followed by another, also issued with the consent of all parties and also accompanied by an Agreed Statement of Facts, dated January 15, 2013. Martha was again agreed to be a child in need of protection and the conditions were essentially the same as those of the previous Order.

The term of this consent Order was also three months. [ 11 ] Circumstances evolved and information was obtained during and after the term of the January 15, 2013 Order. The most significant are these: • On February 6, 2013, Dr. Terry Nicholaichuk completed a Re-Offender Risk Assessment of Mr. Simpson in which he concluded that Mr. Simpson was at very low risk to reoffend sexually and that the risk would reduce as he aged. • On February 8, 2013, Dr. Francis Stewart completed a Parenting Capacity Assessment Report respecting Ms. Edwards.

He concluded that she was unable to parent Martha in an adequate, reliable and safe manner. • During April and May, 2013, Martha was transitioned to the care of her parents. • On June 17, 2013, David Simpson was born. • In April, 2014, Mr. Simpson was charged with assault and uttering threats. • In August 2014, Martha was treated for sores that the physician thought consistent with scabies or bed bug bites. [ 12 ] On September 29, 2014, the Ministry apprehended the children.

The Notice of Apprehension indicated that the children had been apprehended because they “had been or were likely to be exposed to harmful interaction for a sexual purpose in light of Mr. Simpson’s conviction and/or accusations of sexual offences” and that there was no adult who was able or willing to provide for the children’s needs. On these grounds, the Ministry applied for a Protection Hearing and recommended a 6-month temporary committal.

[ 13 ] The matter was adjourned from time to time and the children remained in care. In an Agreed Statement of Facts dated April 20, 2015, the Ministry expanded on its grounds for apprehension. In that document, the Ministry indicated that the apprehension was based on Mr. Simpson’s violent criminal history and the then recent criminal allegations, Ms. Edwards’s low parenting capacity and the likelihood that there were bed bugs or scabies in the home. [ 14 ] In that Agreed Statement of Facts, it is noted that Mr. Simpson and Ms. Edwards did not agree with the conclusions of the Parenting Assessment for Ms.

Edwards and they did not agree that the children were in need of protection at the time of their apprehension. They did, however, agree that the children were in need of protection at the time the Agreed Statement of Facts was executed on April 20, 2015. The document does not indicate the reason they conceded that the children were then in need of protection by that date. [ 15 ] Consequent on this Agreed Statement of Facts, a further temporary Order was agreed by all parties.

The conditions of that Order binding on the parents relate to the eradication of bed bugs from the home and, in addition, the parents agreed to participate in an intensive parenting skills program with their family support worker and undertake any other programming recommended by the Ministry. The conditions of that Order binding on the Ministry relate to the provision of in-home services with the intention of gradually reintegrating the children into the home. Visits were also prescribed, provided they would be in the best interests of the children. The term of the order was three months from April 20, 2015.

This was the last Order made in this matter. [ 16 ] Since their September 2014 apprehension, the children have resided in the care of first-time foster parents. If a permanent order is given, the foster parents will apply to adopt both children. II.

THE MINISTRY’S CONCERNS AND RECOMMENDATION [ 17 ] In its Notice of Protection Hearing immediately following the September 29, 2014 apprehension and dated October 2, 2014, the Ministry sought a six-month Temporary Order. [ 18 ] At the conclusion of the term of the Consent Order made April 20, 2015, the Ministry filed a new Notice of Protection Hearing dated July 23, 2015. It is this Notice that led to this hearing and this decision. In that Notice the Ministry alleged that the children were in need of protection on the following bases: 1. Pursuant to

section 11(a)(i), as a result of an action or omission by the child’s parent, the child has suffered or is likely to suffer physical harm. 2. Pursuant to

section 11(a)(ii), as a result of an action or omission by the child’s parent, the child has suffered or is likely to suffer a serious impairment of mental or emotional functioning; and 3. Pursuant to

section 11(b), there is no adult person who is able and willing to provide for the child’s needs, and physical or emotion harm to the child has occurred or is likely to occur. Again, the Ministry sought a six-month Temporary Order. [ 19 ] However, at a pre-trial hearing held on November 13, 2015, the Ministry advised the Court and the parents that it was then seeking an Order that the children be permanently committed to the care of the Ministry.

The hearing proceeded on this basis. [ 20 ] As is apparent from the chronology given above and as is not uncommon where children are on apprehended status for lengthy periods, the Ministry’s reasons for apprehension have evolved since the initial – for purposes of this application – apprehension in September 2014. At time of hearing, the Ministry called evidence as to and asked me to consider the following concerns: 1. The condition of the Simpson and Edwards’ home; 2. Domestic violence between the parents; 3. In regard to both parents, their willingness to provide the children the care they require; 4. Mr.

Simpson’s criminal history and risk of re-offending; 5. Allowing unsafe and inappropriate people to supervise the children; 6. Ms. Edwards’ ability to parent the children; 7. Mr. Simpson’s health challenges; and 8. Emotional harm to the children if they are removed from their current placement. [ 21 ] Ms. Edwards and Mr. Simpson argued that many of the Ministry’s stated concerns are not valid at all or, if they are valid, that they do not significantly affect their ability to properly parent their children. III. EVIDENTIARY MATTERS

[ 22 ] The Court heard extensive evidence from 16 witnesses over a period of eleven days. I will review the evidence of the witnesses together in the context of and provide my conclusions respecting each of the Ministry’s concerns. 1. Condition of the Simpson and Edwards Home [ 23 ] The Ministry called evidence in respect to two aspects of the condition of the Simpson and Edwards home: A. General cleanliness and clutter; and B. Bed bugs A. General Cleanliness and Clutter [ 24 ] Sarah-Jo Annesley was the Child Protection Worker assigned to Martha’s file from January 2013 until mid-August 2015.

She said that during the time Martha was in care, the Ministry was not especially concerned about the condition of the home but that its condition was important while the Ministry planned her return and while she was living there. [ 25 ] Ms. Annesley and (other MSS staff who gave evidence in this regard) said that the concern was primarily with clutter. Items were stacked in the entryway and various surfaces had piles of belongings on them. Sometimes she observed that the storage room was packed and sometimes the parents’ bedroom was packed with belongings.

Occasionally, items were stored in the children’s bedroom. [ 26 ] Also at about that time, Ms. Annesley noted that there were often many animals in the home, some belonging to Ms. Edwards and Mr. Simpson and some that they were caring for for friends. On one occasion she noted what she believed to be animal feces on a wall; it was eventually removed but not for some months and until after a stern reminder from Ms. Annesley [ 27 ] Over time, Ms. Annesley observed improvements to some rooms but this would commonly be counter-balanced by increased clutter in others as items were moved from room to room.

By June 2016, Ms. Jones observed that the home was still cluttered by numerous boxes, bags, baskets and Tupperware containers; she did find that the living room and kitchen were cleaner than other parts of the home. [ 28 ] The Ministry believed this clutter might pose a risk to the health and safety of the children, particularly as their developmental levels required room to move and play. [ 29 ] On the other hand, Mr. Simpson testified that they undertook a significant cleaning of the house and yard over months before and during summer 2016.

He said he took many truckloads to the dump and organized what remained. He also said they undertook a major interior cleaning of every room and provided pictures that show the kitchen, living room and bathroom to be clean and free of clutter. He assured the Court that the home has since been maintained and is subject to intensive daily cleaning. While I believe his evidence as to the nature and frequency of cleaning was exaggerated, the fact is that the photographs confirm that cleanliness was by summer 2016 not an issue and I have no basis to conclude that that home is not currently being maintained.

Bed Bugs [ 30 ] The first mention that there might have been bed bugs in the Simpson/Edwards home came in about December 2012. However, the Ministry did not investigate at the time because Martha was not then in the home. [ 31 ] However, in August 2014, it was recorded that Martha had been treated for a skin condition that the doctor thought consistent with scabies or bed bugs.

Because of this and because the Ministry was working toward returning the children to their parents’ care, on March 11, 2015, an extermination company inspected the home and found “a heavy infestation” of bed bugs. [ 32 ] In the Consent Order and Agreed Statement of Facts dated April 20, 2015, the bed bug issue was addressed in some detail. The Ministry indicated that before in-home visits could be allowed, the issue needed to be resolved.

The parents agreed to “exhaust all resources available to them” to address the situation, despite the fact that no additional social assistance could or would be provided for this purpose. [ 33 ] Instead, Mr. Simpson was instructed to have his landlord contact Ms. Annesley to discuss the landlord contributing to the cost of eradicating the bugs. Once that conversation took place, the Ministry undertook to arrange for the eradication of bed bugs in “the building in which Joseph and Christine live”. [ 34 ] Following this, the landlord and Ms.

Annesley had a conversation in which the landlord declined to contribute to the cost of eradication. [ 35 ] Mr. Simpson said that he is not convinced the residence had or has bed bugs, although they did have an infestation of wood spiders at about that time. As to bed bugs, he said two dead bed bugs were found on a couch he purchased and within two days after he saw them, he removed and replaced the couch. He said these were the only bed bugs found when the house was inspected. He said neither he nor Ms. Edwards have had bed bug bites at any time.

He does not believe there was a bed bug infestation in their home, heavy or otherwise. [ 36 ] However, when Ms. Nikolejsin, a Ministry worker, went to the hospital with Ms. Edwards and Martha in August 2014, she saw bugs of some sort on bags that Ms. Edwards brought with her. Indeed, hospital staff presumably also saw the bugs because, Ms.

Nikolejsin said, they were quarantined in the examination room for the duration of the visit as a result. [ 37 ] The foster mother testified, however, that she and her husband did not observe bed bugs on the children or their clothing when they arrived into her care in September 2014. [ 38 ] Overall, I am satisfied that there were, at least before March 2015 and for some time after, bed bugs in the Simpson and

Edwards home. [ 39 ] I am also satisfied that the Ministry, by its April 2015 agreement, undertook to be responsible for the eradication of the bed bugs if Mr. Simpson and Ms. Edwards satisfied certain conditions. In particular, they were to consult their landlord to seek a contribution to the costs, follow any instructions given by the exterminator and limit others from visiting or staying in their home. Thereafter, the Ministry, acknowledging that Mr. Simpson and Ms.

Edwards could not obtain funds to deal with bed bugs through social assistance, would “arrange for the eradication of bed bugs in the building.” [ 40 ] While there is some dispute about who specifically arranged Ms. Annesley’s telephone contact with the landlord, the fact is that they did speak and the landlord declined to contribute to those costs. Nonetheless, the Ministry has not taken any steps to arrange for the eradication of the bugs. [ 41 ] Various explanations were provided for this. First, the Ministry required Mr. Simpson and Ms. Edwards to “take responsibility” for the bugs.

Initially, I was told that this meant that they were to admit that they brought the bed bugs into the home but, upon my pursuing the matter, later suggested this required only an admission that there were, in fact, bed bugs in the home. [ 42 ] The Ministry also believed, probably reasonably, that there was no likely purpose in dealing with the bugs in the Simpson and Edwards premises unless the lower suite was also treated. The Ministry believed Mr. Simpson and Ms. Edwards were responsible to secure the consent of the lower unit’s tenants.

It was relayed that the lower tenants declined to have their premises inspected for this purpose. [ 43 ] Finally, the Ministry said that the home was never afterward in a condition that would be appropriate for treatment. This, I believe, related to clutter and cleanliness in the home. [ 44 ] Mr. Simpson said that, despite his skepticism about the presence of bed bugs and given the Ministry’s concern, he took steps to deal with the bugs. He said he sprayed the house with chemicals recommended by the exterminator and that he paid the associated cost of about $800.00 from his own resources.

Because the exterminator had indicated that bed bugs sometimes live behind baseboards, Mr. Simpson said, he removed all baseboards and sprayed behind them. He then replaced the old baseboards with new ones. [ 45 ] I believe the Ministry placed Mr. Simpson and Ms. Edwards in a very difficult position in regard to the bed bug infestation, whatever its degree.

They were required, variously, to agree that they brought the bed bugs into the home which is unusual, given the prevalence and insidiousness of bed bugs; it seems to me impossible to determine the source of bed bugs in most cases or to attach blame, even when the source can be determined. [ 46 ] Also significantly, they were held responsible to ensure that the downstairs tenants co-operated and participated in the bed bug eradication. Once they refused to do so, it is unclear to me what options Mr. Simpson and Ms. Edwards had. I think this is so irrespective of the fact that the downstairs tenants are Mr.

Simpson’s daughter and her brother; despite their being related, all are adults independently renting space. Mr. Simpson and Ms. Edwards would have no ability to force them to open their home for inspection or treatment. [ 47 ] Further, neither of these were conditions the Ministry placed on Mr. Simpson and Ms. Edwards when they agreed to otherwise to “arrange for the eradication of bed bugs in the building”. [ 48 ] As to the reason the Ministry did not attend to the eradication of the bugs as had been agreed, two explanations were provided. [ 49 ] First, the Ministry submitted, Ms. Simpson and Ms.

Edwards did not put their home in condition for treatment. It is unclear to me exactly what the Ministry wished them to do or whether their requirements were made clear to the parents. Likely, this related to cleanliness and clutter. [ 50 ] The second explanation is that there is no mechanism by which the Family Services division of the Ministry could fund the extermination. This may or may not be so but the fact is that the Ministry agreed to do just that. If it could not do so, it ought not to have given the commitment. Just as the Ministry held Mr. Simpson and Ms.

Edwards to their obligations under the various Orders and Agreed Statements of Fact, so too should the Ministry be held to its. [ 51 ] All of this, however, is academic at this point. There is no evidence of bed bugs being seen on either Mr. Simpson or Ms. Edwards or in their residence since the Consent Order of April 2015. It may be and is perhaps likely that Mr. Simpson’s efforts in spraying had their desired effect. Whatever the reason, there is no evidence on which I could conclude that the Simpson and Edwards home is today infested with bed bugs. B.

Conclusion [ 52 ] The evidence does not satisfy me that the condition of the Simpson and Edwards’ home prevents them from providing adequate care for their children. 2. Domestic Violence [ 53 ] During the time that Martha was first in care from June 28, 2012 until May 15, 2013, the Ministry received information that an incident of domestic violence had occurred between Ms. Edwards and Mr. Simpson in September 2012. It was reported to police that Ms. Edwards and Mr. Simpson were arguing while walking down the street and Ms. Edwards slapped Mr. Simpson’s face. As a consequence, the Ministry referred Ms.

Edwards to the local mental health clinic to work on anger management and emotional control. [ 54 ] Ms. Edwards admitted that this incident occurred but said it was while she was pregnant with Martha. I think she is in error in this respect because the Ministry was not involved with the family at all until after Martha’s birth and there is no reason, failing that involvement, that the Ministry would have been advised or aware of the incident.

[ 55 ] Ms. Edwards attended one counseling session at the mental health clinic but continued counseling through Family Services Inc. Ms. Edwards apparently completed this counseling and there was no evidence suggesting further incidents of domestic violence between the parties. [ 56 ] I am not satisfied that there is evidence of on-going domestic violence between Mr. Simpson and Ms. Edwards or that there is domestic violence between them that supports a protection concern regarding their children. 3.

Parents’ Willingness to Care for the Children [ 57 ] I am not certain what evidence the Ministry relies on in suggesting that the parents or either of them are not willing to care for their children. The parents’ evidence is that they are very willing and desirous of doing so. The question is whether they are able to do so. [ 58 ] It may be in this regard that the Ministry was considering two matters on which it called extensive evidence: A. Mr. Simpson and Ms. Edwards were not consistent in exercising visitation with their children; B. Mr. Simpson did not always engage with his children during visits. A.

Visitation [ 59 ] Since the children’s first apprehension and continuing until today, the parents have had visitation scheduled with the children twice a week, at one point for two hours each visit but now for one and on-half hours per visit. They have missed many of their visits, usually due to conflicting appointments or illness of either or both of them.

In some months, the parents missed over half of their visits. [ 60 ] The parents point out that some visits have been cancelled by the Ministry or the foster parents, for example, due to hazardous road conditions or because the foster parents had taken the children on vacation. In my view, there was good reason for those cancellations and a few are not surprising given over 200 scheduled visits since the September 2014 apprehension. Cancellations can be expected occasionally by all parties. [ 61 ] What is of concern is the number of visits cancelled by the parents.

First, it would appear that when one is committed to visits four hours each week, that it would not be difficult to

schedule medical and other appointments so as to accommodate both. [ 62 ] Next, the number of visits cancelled by the parents due to illness appears to me to be extraordinary. Certainly, as will be discussed later in this decision, Mr. Simpson faces many health challenges that have legitimately prevented his visiting and both testified to occasional colds and flu. [ 63 ] However, neither Mr. Simpson nor Ms. Edwards provided satisfactory reasons for both staying back when one was ill. The Ministry witnesses testified that neither attended a single visit without the other while Ms. Edwards said there were some.

Either way, I am satisfied that there were very few, if any, occasions where only one of Mr. Simpson or Ms. Edwards attended a visit without the other. [ 64 ] I do not accept Ms. Edwards’ explanation that she would stay back with Mr. Simpson so as to attend to him if he had a seizure. This explanation is inconsistent with her own evidence that seizures are rare for him and that his daughter and her brother are frequently available to assist if one occurs. [ 65 ] However, as will be discussed further later in these reasons, Ms. Edwards is very reliant on Mr.

Simpson in most aspects of her life and certainly in regard to the care of the children. I accept that she would not be comfortable to attend visits alone and I accept that in her situation, this is not unreasonable. For Mr. Simpson, the corollary may be true; that is, that Ms. Edwards does require his attention at home and so he would be reluctant to leave her alone, particularly when she was unwell, to go visit the children. [ 66 ] For these reasons, I am satisfied that the fact that the parents missed many visits with their children does not suggest that they are not interested in providing for their care. B.

Mr. Simpson’s Lack of Engagement [ 67 ] All of the parents’ visits with the children were observed by Ministry officials who made notes of their observations. It was frequently noted by a number of different observers that Mr. Simpson was holding back and leaving the chores of child care such as feeding and diaper changes to Ms. Edwards, though he did offer her advice from time to time. Similarly, he did not always join in when Mr. Edwards engaged in activities with the children. [ 68 ] Mr. Simpson denied that he was not engaged. Instead, he said, he recognized that Ms.

Edwards had not had children before whereas he has seven other children. He knew the Ministry was concerned about her ability to parent and thought it best to allow her to play a more major role so as to gain experience and learn. [ 69 ] Further, he said, there were occasions when he was in pain - for example, with a sore back - and was unable to get down on the floor with Ms. Edwards and the children. [ 70 ] I accept this explanation. Not all parents share the role equally; there are many families where one parent takes on a greater part of the child-rearing duties and it may be that this is the pattern Mr.

Simpson and Ms. Edwards will follow. [ 71 ] Further, it is understandable that Mr. Simpson might think that the Ministry’s main concern was with Ms. Edwards’s ability to parent. In fact, he is correct about this. That being the case, it may have seemed reasonable to him to allow her the opportunity to be more active during visits so as to learn and to show what she’s learned.

[ 72 ] I note that Mr. Stewart observed one of the visits for purposes of his Parenting Capacity Assessment for Ms. Edwards and he noted that Mr. Simpson was very noticeably not engaged during that visit. Mr. Simpson agreed that he was not and said that he knew Mr. Stewart’s purpose and thought that since he was assessing Ms. Edwards, it would not be helpful for him to participate actively as this might minimize or compromise Mr. Stewart’s opportunity to assess Ms. Edwards. [ 73 ] In this regard, I note Mr. Stewart’s evidence that, during the visit he observed, Mr.

Simpson was wholly disengaged and didn’t even offer help or advice when Ms. Edwards needed it or asked for it. This is inconsistent with or, at least, far more extreme, than what various Ministry staff described when they spoke of Mr. Simpson’s level of engagement during visits but it is consistent with his evidence that he thought he should stand back to allow Mr. Stewart an opportunity to observe Ms. Edwards. While Mr. Stewart said that he would be well able to conduct his assessment if both parents were active at the visit, I do not think Mr.

Simpson’s reasoning should be discounted as unreasonable. [ 74 ] Finally, I believe that the concerns about Mr. Simpson’s involvement with his children were raised during the early months of their apprehension. I did not understand those concerns to persist to the present and it appears to me that, save an occasional visit where Mr. Simpson claimed to be unwell or in pain, he has more recently been well engaged in activities with either or both of the children. Conclusion [ 75 ] The evidence does not convince me that Mr. Simpson or Ms. Edwards do not wish or desire to provide their children's care. 4. Mr.

Simpson’s Criminal History and Risk of Sexual Re-Offending [ 76 ] Mr. Simpson has a lengthy criminal record commencing in 1980 and continuing almost without interruption until 1996. His convictions until 1991 are for property, fraud and compliance offences; these do not concern the Ministry in the context of this application. [ 77 ] However, in 1991, Mr. Simpson was convicted of sexual assault and sentenced to three years in the penitentiary. He was released on statutory release in May 1993 and was returned in June 1996 when he was convicted of three counts of sexual assault with a weapon.

For those, he was sentenced to a total of 9 years in the penitentiary. [ 78 ] In all four offences, Mr. Simpson’s victims were assaulted physically and sexually. In all four, the victim was threatened with a knife; one was cut. The victims were 13, 17 and 18 years old. Mr. Simpson was 25 to 30 years old at the times of the sexual assaults. [ 79 ] For these offences, Mr. Simpson was held to his expiry date and was released in 2006. Mr.

Simpson testified that he was eligible for release earlier but requested to stay in custody until his expiry date to enable him to complete high-risk sex offender and other programming. Upon release, he was subject to conditions and continued sex offender programming for some time. [ 80 ] Since his release in 2006, Mr. Simpson has been subject to recognizances made under

section 810.2 of the Criminal Code and bound by the conditions of those documents. He has been convicted of breaching those conditions on two occasions in 2012 and further, was convicted of uttering threats in 2015. He was sentenced to five months custody for the breaches and probation for the threatening conviction. [ 81 ] The Ministry was concerned that Mr. Simpson’s past convictions for sexual assault, in particular, might place his children at risk. For this reason, they required him to participate in an assessment of his risk to re-offend sexually. Dr.

Terry Nicholaichuk was retained to conduct the assessment and provide his report. Dr. Nicholaichuk’s written reports are in evidence before me and, in addition, he provided oral evidence. [ 82 ] In fact, Dr. Nicholaichuk provided two reports. In the first, dated February 6, 2013, he concluded that Mr. Simpson’s risk of re-offending by committing a new sexual offence was about 1% and that the risk would be expected to decline as Mr. Simpson got older. [ 83 ] Some time after receiving that report, the Ministry requested an update; this was provided in February of 2015. In the updated report, Dr.

Nicholaichuk maintained his earlier opinion that Mr. Simpson’s risk of re-offending sexually was very low and that he is of very low risk to his children. In that report, as in the first, Dr. Nicholaichuk wrote: There are several other factors which combine to arrive at the conclusion that [Mr. Simpson] is very unlikely to present a risk to his infant children. He has no history of being sexually attracted to, or history of molesting children. Further, he has no known history of non-sexual violence.

His offences are historical and subsequent to treatment and release, he has not re-offended in spite of being in the community for ten years during which he had ample opportunity to commit such an offence. Finally, his degree of physical infirmity coupled with his age combine to support the conclusion that his risk to be sexually violent is somewhat remote. In

summary, [Mr. Simpson] displays none of the markers which would indicate that he could reasonably [be] expected to be either sexually or physically violent. Certainly there is no evidence that he has ever been sexually attracted to children (reference omitted). That report stated that [Mr. Simpson] showed arousal only to consensual sexual activity with adult females. [ 84 ] Dr. Nicholaichuk’s oral evidence was more expansive.

As to age, the witness stated that virtually all studies show that, with the exception of people who are exclusively homosexual paedophiles, offenders will stop being violent as they get older. This is true even for those with extensive histories of violence. Incidents of violence will start to decrease when the offender is in his or her 40s and by the time they are 55 or 60, the incidence of violent offending is effectively zero. He said these are “pretty consistent” findings in studies of aging and violence. Mr. Simpson was 51 at the time Dr. Nicholaichuk conducted the updated assessment. [ 85 ] Dr.

Nicholaichuk also testified that it is significant that Mr. Simpson, having been in the community for ten years, has not re- offended. He said:

So the real test of, you know, the person’s ability to change or govern his behaviour is taken from a period of, you know, community supervision or residence in the community. And a number of studies have, you know, been pretty clear in that the longer somebody remains in the community offence-free, the lower the expectation of risk becomes. [ 86 ] Dr. Nicholaichuk testified that sexual offenders are attracted virtually exclusively to either pre-pubescent or post-pubescent victims. He explained that age is not the defining factor but the stage of physical development is.

He said that he found nothing indicating that Mr. Simpson is attracted to pre-pubescent children. This militates against risk to Mr. Simpson’s children. [ 87 ] In summarizing his evidence, he said, “[W]hat I can say is the record indicates that he has not been a risk to his children, and for the reasons that I discussed already, it is unlikely that he will be a threat to his children.” He clarified that in this conclusion, he was referring – as was the Ministry’s request to him – to Mr. Simpson’s risk of committing sexual offences against his children. [ 88 ] In the course of his oral evidence, Dr.

Nicholaichuk was presented information that was not provided to him at the time he prepared the updated report. In fact, Mr. Simpson had been investigated for and charged with further offences; one matter investigated but for which no charges were laid was for sexual assault. Dr. Nicholaichuk indicated that his assessment of risk on the Static-99 test might have been different if he had been provided that information but that his ultimate conclusion might or might not have changed, depending whether or not Mr. Simpson was convicted of the charges. [ 89 ] The Ministry argued that I should give little weight to Dr.

Nicholaichuk’s opinion since he did not have all relevant information when it was written. I am not inclined to do so. What Dr. Nicholaichuk did say was that if he had known that Mr. Simpson had been convicted of any further or recent sex offences, his opinion would likely be different and it was implicit in that statement that in that event, his assessment would have increased Mr. Simpson’s risk to re-offend. [ 90 ] However, Mr. Simpson has not been charged or convicted of any sexual offences since his release from custody in 2006. That being the case, it would appear that Dr.

Nicholaichuk’s assessment of risk would be unchanged, notwithstanding any subsequent investigations. [ 91 ] If I am wrong in this regard, I would nonetheless not wholly discard Dr. Nicholaichuk’s opinion. His opinion, as quoted above, is that aging and offence-free time in the community are indicative of reduced risk and that this so for all violent offenders save paedophaelic homosexuals. That opinion is unchallenged. [ 92 ] There is no suggestion that Mr. Simpson is either a paedophile or homosexual. Dr. Nicholaichuk’s examination did not reveal any attraction to pre-pubescent children.

There is evidence that Mr. Simpson is now almost 53 years old and has been living in the community without further convictions for violent offences for over ten years. Thus, the opinion leads one to the conclusion that Mr. Simpson’s risk of reoffending sexually would be low, although without Dr. Nicholaichuk’s specific opinion, this Court could not quantify that risk. [ 93 ] In so concluding, I am mindful that one of Mr. Simpson’s sexual assault victims was just 13 years of age. However, I also recall Dr. Nicholaichuk’s evidence that age is not the determinative factor; the stage of physical development is.

While we do not have evidence as to whether that victim was pre- or post-pubescent, there is evidence that testing has shown that Mr. Simpson is not attracted to pre-pubescent children. Given that 13 years is commonly a post-pubescent age of development and given Dr. Nicholaichuk’s evidence that Mr. Simpson’s attraction is to post-pubescent females, a balance of probabilities weighs in favour of this victim being post- pubescent. [ 94 ] If I were to reject Dr. Nicholaichuk’s opinion in its entirety, I would be left with no evidence on which to access the nature of the risk, if any, that Mr.

Simpson will re-offend sexually against his children or anyone. [ 95 ] Therefore, whatever one’s perspective on Dr. Nicholaichuk’s evidence and any inconsistency within it, I must conclude that Mr. Simpson does not, on the basis of his criminal past, pose a risk to Martha and David. 5. Unsafe and Inappropriate Supervision [ 96 ] Mr. Simpson and Ms. Edwards moved to Moose Jaw in about 2011. Aside from Mr. Simpson’s daughter, who resides with her brother in the lower level of the home Mr. Simpson and Ms.

Edwards rent, they do not have family members in the city. [ 97 ] They do, however, have friends in the community, many of them apparently part of what Mr. Simpson referred to as their “street family” to whom he feels he owes loyalty. [ 98 ] Mr. Simpson and Ms. Edwards say all of these people are available to assist and advise them and that those in Moose Jaw are able and willing to provide short-term care for the children if necessary. The Ministry is concerned that many of these people are not suitable for providing care to children. [ 99 ] The Ministry notes that Mr.

Simpson’s daughter has three children, two of whom are permanently in the care of the Ministry and one of whom resides long-term with a grandparent. Two of their closest friends are also the subject of protection concerns with the Ministry, one of whom is currently actively involved and one whose children are permanently in the Ministry’s care. [ 100 ] While Mr. Simpson’s daughter’s roommate is not involved with the Ministry, he has challenges of his own and is reported to be under treatment for bi-polar disorder and schizophrenia. [ 101 ] Mr. Simpson and Ms.

Edwards testified that they no longer allow anyone other than family to stay in their home and that they would avoid seeking child care in any event, preferring to keep the children with them and to compromise their activities to allow this.

[ 102 ] However, the reality is that parents of small children will require child care from time to time, however dedicated they are to providing care themselves. This is where a Ministry concern lies. [ 103 ] The Ministry did not offer evidence of the reasons Mr. Simpson’s daughter or the two friends came to be involved with the Ministry. The fact that some of their children have been permanently committed certainly suggests significant parenting concerns.

However, without evidence of the nature of those concerns, I cannot be certain whether they might prevent them from providing adequate short-term care for Martha and David or not. I do not think the bare fact that one’s children have been committed to the care of the Ministry necessarily or always means that the parent is unable to provide short-term care to any child. I doubt the Ministry would suggest this. [ 104 ] Similarly, I was not provided details of the nature of Mr. Simpson’s daughter’s brother’s illness, its symptoms or whether it is well controlled.

I therefore do not have information on which to conclude whether or not he is able to provide adequate short-term care to Martha or David. [ 105 ] For these reasons, I am unable to reach conclusions whether Mr. Simpson and Ms. Edwards have or might engage inappropriate or inadequate child care for their children. 6. Ms. Edwards’s Ability to Parent [ 106 ] As is apparent from the chronology given earlier in this decision, concerns were raised about Ms. Edwards ability to parent her children virtually from the day Martha was born.

She was observed to be very nervous and agitated when caring for Martha in hospital and to have little or no instinct in that regard. The same concerns were noted repeatedly by virtually everyone who observed Ms. Edwards with her children. [ 107 ] Ms. Edwards testified. She presented as an articulate and thoughtful woman who loves and is anxious to care for her children. [ 108 ] Ms. Edwards faces a number of challenges. She advised the Ministry and Mr.

Stewart, who conducted the Parenting Capacity Assessment, that she was diagnosed with Fetal Alcohol Spectrum Disorder (FASD) when in high school and attended modified classes, presumably for this reason. In addition, she said, she suffers from depression and an anxiety disorder but takes medication for both that help in controlling the conditions. Perhaps as a result of the anxiety disorder, Ms. Edwards’s hands will shake when she is upset or uncertain. [ 109 ] As a condition of the first Consent Order made on September 18, 2012, Ms.

Edwards met with psychologist Francis Stewart who conducted a Parenting Capacity Assessment and who provided his report in February 2013. Mr. Stewart gave oral evidence and was qualified as an expert as to Ms. Edwards’s ability to parent her children and as to the custody and access arrangement that would be in the children’s best interest. [ 110 ] Mr. Stewart met with Ms. Edwards on three occasions, administered psychological tests and observed her with Martha who was, at the time, about six months old. It was his opinion that Ms.

Edwards was unable to provide a minimal level of care for her child and, in his oral testimony, that this inability would extend to Daniel, who was born after Mr. Stewart’s report was completed. [ 111 ] I have some reservations in accepting wholly Mr. Stewart’s opinion. While he concluded that Ms. Edwards is not capable of properly parenting her children, his opinion is primarily based on testing and observations made when Martha was six months old and with those observations being made in an environment where Ms. Edwards did not have Mr.

Simpson’s usual advice and support. [ 112 ] Some of his testing was fundamentally subjective and some of his conclusions were, and I think he admitted this, not generous to Ms. Edwards. Indeed, Mr. Stewart testified that that particular test has fallen out of favour among psychologists primarily due to its uncertain and subjective

interpretation. [ 113 ] Further, in reaching his conclusion, Mr. Stewart placed substantial reliance on evidence of short-comings in parent-child bonding and attachment and his view that Ms. Edwards may not have bonded with Martha or Martha with her. However, I am fully satisfied that, whatever the situation in 2012, Ms. Edwards and Martha are bonded now and have been for some time. [ 114 ] It is noteworthy that at the time of the assessment, Martha was just six months old and had not resided in Ms. Edwards’s care at all.

Since then, she resided in the Simpson and Edwards’ home for sixteen months and has had many, many visits with her parents subsequently to the September 2014 apprehension. It is evident from the testimony of Ministry staff who assisted and observed those visits that the children express joy and excitement on seeing and while with their parents and the parents reciprocate. This would not, in accordance with Mr. Stewart’s evidence, suggest that the children and their parents are not bonded and attached. [ 115 ] I do, however, accept Mr. Stewart’s opinion that Ms.

Edwards faces substantial challenges that testing shows may compromise her ability to provide appropriate care to her children. [ 116 ] For purposes of his examination and opinion, Mr. Stewart reviewed the Ministry file and interviewed Ms. Edwards on three occasions. He administered a number of tests. These showed that Ms. Edwards is of average intelligence and relatively equal verbal and performance scores suggesting “relatively even intellectual development”. Based on these results, Mr. Stewart concluded that Ms. Edwards’s intellectual/cognitive functioning was essentially average and there were no deficits.

He wrote: In

summary, [Christine’s] cognitive testing results indicated that she has a General Full Scale I.Q. score that falls within the average range of intellectual functioning. There was not a significant difference between her verbal and non-verbal intellectual abilities, which suggested that there is relatively even intellectual functioning across a variety of areas measured by the RIAS. [Christine] also scored in the average range on both Memory scales, which suggested that she has average working, or short-term memory functions.

And later in his report: It is important to recognize that cognitive intelligence, measured through the administration of I.Q. tests, is only one aspect of intelligence. Emotional intelligence is believed to play an equally important or more important role in achieving success in life. Although this aspect of [Christine’s] intelligence was not assessed, the writer believes that [Christine] may have low emotional intelligence, based on her social behaviour/skill level, her apparent low self-awareness, low motivation, low level of self-regulation, and so on.

So, although [Christine] may have scored in the average range of intelligence as measured by the RIAS, her level of overall social and emotional functioning does not seem to be at a level that is consistent with her recorded I.Q. This may be due in part to her FAS, her maturity level and/or her lower emotional intelligence. [ 117 ] On the Personality Assessment, Mr. Stewart found Ms. Edwards’s results placed her high on the anxiety-related disorders and moderately elevated on another anxiety scale and on the borderline scale. These results lead to the conclusion that Ms.

Edwards is likely to have specific fears and worries and to lack self-confidence. This would be so particularly during times of stress. These findings are consistent with repeated observations that Ms. Edwards becomes unusually agitated and panicked when in situations where she is uncertain, such as when Martha was fussing or when she vomited during visits. These findings are also consistent with Ms. Edwards’s evidence that she has an anxiety disorder and takes prescription drugs to manage it. [ 118 ] Ms.

Edwards’ results also suggest a person who has a strong need to be liked and a fear of being rejected by others and dedicating significant effort to maintaining intimate relationships. This may explain why Ms. Edwards consistently chooses, on visiting days, to stay with Mr. Simpson in lieu of seeing her children. It may explain her virtual dismissal of Mr. Simpson’s record as being something from the past not requiring her current attention or, as she is reported to have told Mr. Stewart, “nothing serious”. It may be that to Ms. Edwards, the importance of maintaining her relationship with Mr.

Simpson overrides thoughtful consideration of his record. [ 119 ] In her oral evidence, Ms. Edwards initially confirmed what Mr. Stewart reported. She said Mr. Simpson told her about his criminal past and she was a bit concerned at first but “I told him that, you know what, past is in the past. Forget about it. We’ll work on toward the future together.” [ 120 ] While she is uncertain about the number and nature of Mr. Simpson’s offences she also said that she is still concerned and will keep her guard up.

She said if she didn’t feel safe around him or if he did anything “like that” to their children, she would leave Mr. Simpson. This approach, in my view, reinforces my observation that Ms. Edwards may have dealt with Mr. Simpson’s record in the manner that she believes will best maintain her relationship with him or, at least, cause the least disruption to it. [ 121 ] Another test result suggested that Ms. Edwards’ motivation for treatment would be difficult to maintain over a long period of time. In this regard, Mr.

Stewart wrote: Individuals presenting such a pattern may accept treatment in an effort to cope with an immediate crisis, but their commitment to treatment may wane as the crisis resolves, and there maybe resistance to dealing with longer term issues. The nature of some of [Christine’s] presenting problems suggests that the treatment process may be somewhat difficult, and reversals should be expected. [ 122 ] In his oral evidence, Mr. Stewart said this means essentially that a person like Ms. Edwards will be receptive to help but only during a crisis period.

Once the crisis passes, she would likely withdraw and not pursue care diligently. [ 123 ] This conclusion is consistent with Ms. Edwards’ (and Mr. Simpson’

s) pattern of attending to Ministry requirements only when critical aspects of the process loom. For example, they agreed as early as September 2012 to attend parenting classes. While Ms.

Edwards did complete an on-line course shortly thereafter, she did not, despite repeated urging from the Ministry, attend interactive and in-person programming until she completed the first half of the Incredible Years program in August 2016, after this hearing had commenced. [2] The program had been offered on a number of occasions in the interim. [ 124 ] Similarly, the parents seemed unable to attend to the clutter and cleanliness of their home until the months and weeks preceding the hearing. [ 125 ] This may also explain Ms. Edwards’ frequent failures to follow through on her plans.

A few examples include her missing a scheduled mental health appointment in 2014 when she had transportation problems; she said she will attend to this now. Ms. Edwards attended the Incredible Years program first in 2014 or 2015 but was unable to complete due to illness; she did not attend to reenrolling until summer 2016 when it was too late to complete the program before this hearing commenced. She said she had not looked for employment and is not sure why but she will start looking for work now.

She also intends to return to school to improve her high school marks and then take post-secondary classes; this has been, she said, her intention for some years but she has not taken any steps to achieve this goal. No one of these alone is necessarily cause for concern but, taken together, they may suggest an inability to follow through on plans without significant incentive. [ 126 ] Mr. Stewart’s explanation that the elevated score on the anxiety scale suggests a person who will tend to be submissive. This is consistent with repeated observations that Ms. Edwards looks to Mr. Simpson for advice and approval.

It is consistent with her own evidence that she requires advice and training; she is not confident to rely on her own skills and instincts respecting the care of her children. [ 127 ] Mr. Stewart noted that the assessment conducted when Ms. Edwards was in high school concluded she suffered some learning

disability, although its nature was not disclosed. Mr. Stewart believed that the presence of the learning disability, the FAS diagnosis or a low emotional IQ or some combination of them might prevent Ms. Edwards from learning appropriate parenting skills. However, Mr. Stewart did not test for either learning disabilities or emotional IQ and was unable to testify to the impact of FAS on Ms. Edwards’s functioning so this opinion, he admitted, was speculative. Nonetheless, he is satisfied that Ms. Edwards is not able to provide adequate care to her children. [ 128 ] Considering Mr.

Stewart’s opinions and the evidence as a whole, I agree. [ 129 ] In this regard, it is striking that Ms. Edwards appears to have few instincts for child care or interaction with her children. From the time she was at hospital after Martha was born, Ms. Edwards required assistance and advice on virtually every aspect of their care. This included bathing, swaddling, feeding, burping, calming and other routine matters and continued during visits after Martha was in care. [ 130 ] Ms.

Edwards was repeatedly observed to become agitated and frustrated when the children fussed or engaged in behaviour normal to their ages. When she was encouraged to think of a way to address the behaviour, her agitation increased until she received a suggestion or advice. She was, however, able to follow advice and did on virtually every occasion. But it would appear she had no independent judgment on these occasions. This is somewhat surprising in general but particularly since Ms. Edwards testified that she read parenting books prior to Martha’s birth and believed she had learned from them.

While I recognize that the reality of caring for a child will almost always be more difficult and challenging than reading about it, one would expect that Ms. Edwards would have developed at least a familiarity with the kinds of behaviours she might anticipate. It appears she did not. [ 131 ] Most telling, however, was Ms. Edwards’ evidence that on one occasion, which I think was likely late 2013, she looked after the children alone for an hour or two while Mr. Simpson did errands. As I understood the evidence, this was the only occasion when Ms.

Edwards has been alone and responsible for the care of her children. There was pride in this statement but implicit in it, an admission that she would not generally expect to undertake their care alone. [ 132 ] On a practical level, Ms. Edwards testified that she had not learned to cook but relies primarily on Mr. Simpson for meal preparation. However, she is learning. She said she can now cook frozen vegetables, rice and noodles.

She is “trying to get the hang of Kraft Dinner” Clearly, she does not now have the means to attend to the nutritional needs of her children. [ 133 ] For all of these reasons, I am satisfied that Ms. Edwards is not capable of providing for the care of her children without significant, on-going and constant assistance. 7. Mr. Simpson’s Health Challenges [ 134 ] Mr. Simpson is now 53 years old and deals with many health challenges.

In the course of his evidence and evidence of others to whom he has relayed information, he claims the following conditions: • Loss of one lung or loss of its use due to a motor vehicle accident when he was a teenager; • Diabetes • Allergies • Epilepsy, although its impact is lessened now. Seizures that used to be frequent but are now said to be rare – perhaps one every six months • Dry eyes; • Heart condition; • Slipped disc in his back requiring surgery; • Plates in both shins that sometimes move and sometimes require him to wear a brace.

These can slip out of position and if they do, surgery will be required; and • Large black lumps inside stomach that limit his ability to eat and keep food down. There is a concern that these may be cancerous. [ 135 ] I found Mr. Simpson to be a self-important and grandiose man who was prone to hyperbole and exaggeration. I am unable to conclude, however, that he has exaggerated his health challenges or their impact. It is apparent from the evidence of Ministry workers who observed visits and from the evidence of Ms.

Edwards that each of these conditions exists and persists and that each has affected, from time to time, his ability to visit his children or to interact with them when he does. [ 136 ] However, the fact that a person deals with significant health issues does not render them unable to parent appropriately, even when their conditions are severe. The concern in this case is that Mr. Simpson’s availability is critical to Ms. Edwards’ ability to parent; that is, she is at all times reliant on Mr. Simpson for advice, support and assistance.

Without that, for reasons given above, I am satisfied that she will be unable to manage her children, even in the short term. [ 137 ] Mr. Simpson claims significant experience in raising children since he has seven other children. However, I note that those children are between 7 and about 32 years of age now and most do not reside in Saskatchewan. I note that Mr. Simpson was in custody from 1991 to 1993 and again from 1996 to 2005. Since 2005, he has resided in Saskatchewan. [ 138 ] It is difficult to accept that Mr.

Simpson was, therefore, available to participate significantly in the parenting of those children.

Further, many approaches to child-rearing have changed since Mr. Simpson’s older children were young, as have the risks and challenges that children face. I am not confident that Mr. Simpson possesses the experience in hands-on parenting that he claims. [ 139 ] On the other hand, in the course of a myriad of examples given in evidence of advice Mr. Simpson offered Ms. Edwards in the course of visits, there were none where the advice he offered was thought to be inappropriate. Whether through experience, instinct or maturity, Mr. Simpson appears to have adequate parenting skills. [ 140 ] I am satisfied that Mr.

Simpson provides acceptable and essential support to Ms. Edwards. However, his health challenges limit his opportunity and availability to advise her. This limits the couples’ ability to care for their children. 8.

Emotional Harm of Moving the Children from their Current Residence [ 141 ] While the Ministry included this as one of its grounds in support of a permanent order, I do not believe that it is appropriate to consider it among the grounds in support of a finding that the children are in need of protection. [ 142 ] An assessment of the emotional harm, if any, that may be caused if the children are moved from their current residence is important but is more appropriately a part of the determination of an appropriate order, if any, that might be made pursuant to

section 37 of The Child and Family Services Act (“the Act ”). It relates directly, of course, to

section 4(

g) defining the best interests of the children. IV. ANALYSIS [ 143 ] Having reached conclusions on the evidentiary issues, I turn now to the law. [ 144 ] In accordance with

section 36 of the Act and as was confirmed in Saskatchewan (Minister of Social Services) v. S. (E.K.) [3] and other cases, my analysis involves a two-step process. First, I must determine whether, pursuant to section 36(1) of the Act , the children are in need of protection as that term is defined in

section 11. If I find the children to be in need of protection, I must next determine what order is appropriate pursuant to

section 37. 1. ARE THE CHILDREN IN NEED OF PROTECTION? [ 145 ] As I mentioned earlier, the parties agreed as recently as April 20, 2015 that Martha and David were then in need of protection. The issue before me, therefore, is whether they continue to be in need of protection and if so, what order is appropriate. [ 146 ] The relevant portions of

Section 11 of The Child and Family Services Act provide that a child will be in need of protection if: (

a) as a result of action or omission by the child’s parent: (

i) the child has suffered or is likely to suffer physical harm; (ii) the child has suffered or is likely to suffer a serious impairment of mental or emotional functioning; (iii) the child has been or is likely to be exposed to harmful interaction for a sexual purpose, including involvement in prostitution and including conduct that may amount to an offence within the meaning of the Criminal Code ; (iv) medical, surgical or other recognized remedial care or treatment that is considered essential by a duly qualified medical practitioner has not been or is not likely to be provided to the child; (

v) the child’s development is likely to be seriously impaired by failure to remedy a mental, emotional or developmental condition; or (vi) the child has been exposed to domestic violence or severe domestic disharmony that is likely to result in physical or emotional harm to the child; [or] (

b) there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur[.]

[ 147 ] I start with the often quoted passage from Saskatchewan (Ministry of Social Services) v E.(S.) [4] as follows: . . . [T]he issue is not whether the children might be better off, or happier, or obtain a better upbringing in the care of other “parents” than with their natural parents. If that were the criterion for a protection order, not many children would remain with their natural parents. The issue, however, really is whether the children concerned are receiving a level of parenting care that is below the minimal standard that will be tolerated in our society[.] [ 148 ] Unless the parents are able to provide adequate care – at or above the minimal standard referenced in E. (

S) above - the children are likely to suffer impairment to mental or emotional functioning as this is the natural consequence of inadequate parenting. Thus, the question is whether Mr. Simpson and Ms. Edwards can provide care for their children that meets the minimal standard. [ 149 ] For reasons given above, I am not satisfied that they can. As I concluded earlier in these reasons, Ms. Edwards is not able to care for the children without significant assistance at virtually all times.

Yet in this relationship, she has been and will continue to be the primary care-giver for the children. [ 150 ] It is unrealistic to assume that Mr. Simpson can be available to provide that assistance at all times given the usual demands of life. Indeed, he will not be because he engages in full day employment from time to time. His availability becomes less realistic when one factors in Mr. Simpson’s many health challenges. [ 151 ] In this regard, I am mindful of Ms. Edwards’ evidence that she is well connected to many of her family members. Her mother lives in Montana and her father and sister in Rockglen.

They are all a phone call away and she speaks to them frequently. Ms. Edwards is especially close to her grandmother who lives in Coronach; she said they talk almost every day. However, these supports, while obviously helpful, cannot defer her need for frequent on-the-spot advice and observation. [ 152 ] That being the case, I am satisfied that, pursuant to

section 11(b) “ there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur.” It follows that these are children in need of protection. 2. WHAT IS THE APPROPRIATE ORDER? [ 153 ] Pursuant to

section 37 of the Act , if I determine – as I have – that the children are in need of protection, I must make one of the following orders:

(1) Subject to subsection (2), if the court determines that a child is in need of protection, the court shall make an order that the child: (

a) remain with, be returned to or be placed in the custody of his or her parent; (

b) be placed in the custody of a person having a sufficient interest in the child; or (

c) remain in or be placed in the custody of the minister for a temporary period not exceeding six months.

(2) If, in the opinion of the court, none of the orders described in subsection (1) is appropriate, the court shall make an order permanently committing the child to the minister.

(3) Notwithstanding subsections (1) and (2), the court may, if it is of the view that: (

a) a child is in need of protection; and (

b) by reason of the age of the child or other circumstances, it is unlikely that an adoption plan would be made if the child were permanently committed to the minister; (

c) order that the child be placed in the custody of the minister until the child attains the age of 18 years.

(4) In making an order pursuant to subsection (1), (2) or (3), the court: (

a) shall consider the best interests of the child; (

b) may consider the recommendations of a the officer mentioned in subsection 36(2); and (

c) may consider the recommendations of a chief, a chief’s designate or an agency that appears in court pursuant to subsection (11).

(5) In making an order pursuant to subsection (1) or (3), the court may: (

a) impose any terms and conditions that the court considers appropriate; and

(

b) include in the order a provision respecting access to the child.

(6) If the court, in making an order pursuant to clause (1)(

a) or (b), orders supervision of the child by the minister as a term or condition of the order, the period of supervision shall not exceed one year.

(7) In making an order pursuant to clause (1)(b), the court may direct that the order shall terminate after the expiry of a period, not exceeding one year, specified in the order. . [ 154 ] The best interests of the child, for purposes of subsection (4) above are defined in

section 4 of the Act as follows: (

a) the quality of the relationships that the child has with any person who may have a close connection with the child; (

b) the child’s physical, mental and emotional level of development; (

c) the child’s emotional, cultural, physical, psychological and spiritual needs; (

d) the home environment proposed to be provided for the child; (

e) the plans for the care of the child of the person to whom it is proposed that the custody of the child be entrusted; (

f) where practicable, the child’s wishes, having regard to the age and level of the child’s development; (

g) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity; and (

h) the effect on the child of a delay in making a decision. [ 155 ] Since the children were taken into care, little of substance has changed in the lives or capabilities of the parents except that both recently completed half of the Incredible Years parenting program. Although she is almost certainly more attached to her children, Ms. Edwards’ parenting skills have not changed noticeably. Mr. Simpson’s health concerns remain. [ 156 ] If the children are returned to their parents, significant supervision by the Ministry will be required.

It is difficult to conclude that this might be more effective now than it was in the past, particularly considering events during the time that the children were returned home from May 2013 to September 2014. [ 157 ] As to that time, Ms. Annesley commented that the children were returned home because: Things were quite stabilized in the apartment. You know, [Joseph] had indicated to me that they had some good support system with the neighbor below who was willing to help them out. We had the family support worker in.

They were willing to work with diversion services and also willing to connect with Kids First at that time. We had, you know, at that point, the protection concerns were mitigated and we made a decision to close the file with the voluntary supports that the family agreed to work with. [ 158 ] Ms. Annesley conceded that some protection concerns remained but: There was some concern, but not enough to warrant that we would stay involved at that time. The family had done a lot of excellent work, and they were willing to work with the support then, and, you know, we had facilitated that before closing.

We had made those arrangements as to who they would be working with and they had agreed to follow up on some things from their end.

[ 159 ] After the children were returned, diversion services were provided through Moose Jaw Family Services. As I understand it, this is similar to family support sometimes provided by the Ministry but diversion services were offered by another agency on the Ministry’s recommendation after the Ministry had returned the children and closed their file. [ 160 ] The diversion program, I understand, is a voluntary service that is offered when appropriate, to parents when their children are returned from care.

Through the diversion program, Moose Jaw Family Services will provide resources and support to parents including advice on parenting, nutrition, budgeting and other matters useful to the family. Ms. Dennison was the diversion worker for Mr. Simpson and Ms. Edwards from January to August 2014. [ 161 ] She attended the parents’ residence each weekday for one hour and observed that the home continued to deteriorate and the children were unclean. The parents were not home or did not respond on at least half of the days that Ms. Dennison attended. This was, obviously, a concern. [ 162 ] Ms.

Dennison described one visit: It dramatically deteriorated. I recall one particular day where I had shown up at the home, and [Martha] was not in the living room; it was just [David, Ms. Edwards and Mr. Simpson] and the house had a terrible unclean odour. There, again, was garbage bags, boxes everywhere and I – I said that I needed to see [Martha] and I wanted to go into the bedroom because I had to have eyes on, and I recall [Mr. Simpson] not wanting me to go in there, and [Ms. Edwards] being distraught and emotional about it, crying. And I went into the bedroom and [Martha] was in her crib and she was sweaty.

She was wearing a soiled diaper that had looked like it hadn’t been changed in a very long time. And the floor – this wasn’t the first time this has happened, but what really got my attention was that there had been approximately 12 different soiled diapers on the floor of the room. It smelled terrible and she was in such distress, [Martha], crying. [ 163 ] Ms. Dennison said that as part of her duties in the Diversion program, she provided the parents many resources.

She said they were generally interested in these and sometimes requested specific information but she did not observe them to often utilize the techniques and information provided and if they did, the use was not consistent. [ 164 ] Ms. Dennison had involvement with the family for almost two years, initially as a family support worker with the Ministry and later through the Diversion Program. She attended their home in both roles. She said that over the time she was involved in this matter, she did not observe any improvement in Ms. Edwards’ parenting skills. She learned but, in Ms.

Dennison’s observation, what was learned was not maintained. [ 165 ] During her visits in the Diversion Program, Mr. Simpson frequently indicated that he thought the program’s assistance was unnecessary and that he was looking forward to it ending. He said that he didn’t really require the Ministry’s assistance. Indeed, the service was discontinued due to the parents’ lack of interest. [ 166 ] Ms. Dennison said that by the time the diversion contract was ended, the children were “distressed, dirty, unclean clothing” and the house was dirty and cluttered. It was particularly telling that Ms.

Dennison, who, during her early work with the family, had written reports that showed effort and sometimes progress, testified to in effect, a failure to improve at all overall. When I asked about this she said: Things changed a lot when diversion came in, and that was after. I had a lot of concerns…It was a lot different, yes. The way that, well, the home environment for one, how receptive they were to information. There was a lot of cancelled appointments. The behaviour of [Martha], that broke my heart. It was very upsetting to see her like that. Yeah.

And it just was not at all the same as it was when I first started working with the family. [ 167 ] Ms. Dennison’s evidence deserves great weight. She was involved with this family in different capacities over a lengthy period of time and her evidence shows a willingness to bring a balanced perspective to her observations. [ 168 ] Ms. Dennison’s evidence confirms what other witnesses said – that Ms. Edwards and Mr. Simpson were unable to provide adequate care for their children and were unable or unwilling to make necessary changes and to maintain them.

While both testified that if the children are returned, they would welcome the Ministry’s on-going involvement and indeed would request it, the evidence leaves me skeptical about whether they would fully engage or whether they would remain engaged and co-operative over the long term. Even during his oral evidence, Mr. Simpson did not contain his disdain for the Ministry.

This is important because I am satisfied that the children cannot be returned unless the parents have and embrace active support. [ 169 ] Further, even when support was provided and the parents were co-operative, it does not appear that it was effective. There is little reason to believe that the results will be different now. [ 170 ] Finally, I am mindful that if I order the children returned to their parents’ care with on-going support, section 37(6) of the Act prescribes a maximum period of one year.

Given the lack of progress in the past 28 months, I am not confident that sufficient progress would or could be made during that limited time. [ 171 ] For these reasons, pursuant to section 37(2), the children Martha and David Simpson will be committed permanently to the care of the Ministry. In so concluding, I have considered the best interests of the children. [ 172 ] In particular, the continuity of their care and the potential disruption of continuity is very persuasive.

[ 173 ] Martha and David have resided in a single foster home since their apprehension in September 2014. At that time, Martha was almost two and a half years old and David was a year younger. They are now four and two. [ 174 ] The foster mother testified and it was obvious that she and her husband have become very attached to the children and love them both. In fact, it is their intention to apply to adopt both children if I order their permanent committal. [ 175 ] It is apparent that the foster parents have provided the children with a warm, loving and nurturing home.

The foster mother is a full-time home-maker and her husband is a full-time student in a post-secondary program. Since the children have been in their care, Martha has been enrolled in skating lessons and both children attend a Moms and Tots program and Sunday school. In addition, they have a designated play area in the home and there are play dates with children who live nearby. [ 176 ] It appears that the foster mother is a thoughtful and insightful woman who cares deeply for the children. She appears to understand their needs and actions and to respond appropriately.

She also understands that, whatever my decision, both the parents and the foster parents will need to remain involved in the lives of these children in some manner, at least during a long transition. The foster mother is mindful of the best interests of the children and was able to speak to those clearly, even as to the role she might play if the children are returned to their parents. [ 177 ] I will not detail the foster mother’s evidence as to various incidents, challenges and how she managed them.

Suffice to say that I am satisfied that the foster parents have provided appropriately for the children’s physical, emotional and developmental needs and have provided them a good and supportive home. Indeed, none of the parties have argued otherwise. [ 178 ] Mr. Stewart, as part of his opinion as to an appropriate placement for the children, spoke of the impact when children are moved from one home to another. He said that if their placement in foster care is longer than a few months, transition to another home should take place gradually.

The children will experience a loss that would be significant, given the length of time they have resided with the foster parents. [ 179 ] As to attachment, he said it is both behavioural and biological. It tends to be strongest when the child is about a year old and but evolves after that.

He said that attachment is critical to healthy development because it has been shown that when children are not strongly attached to their parental figure, there is a three to four times greater chance that the child, as he or she grows older, will be involved in the mental health system, suffer depressive disorders, anxiety disorder, an inability to become attached to their own children and to their intimate partners and that they can anticipate trust issues. He said, “If a child loses a secure attachment figure, it – it can be devastating.

It’s almost like they go through a life of grief.” He said this is so irrespective of the age at which the attachment is broken. [ 180 ] Martha and David are aware that they have, in effect, two sets of parents but it would appear that they see the foster parents’ residence as their home. This is not surprising, given that it has been their principal place of residence for most of their lives and they have had little time with their parents relative to their time in the foster home.

Further, they have, since September 2014, spent no time in their parents’ home. [ 181 ] This means that they haven’t any experience that they likely remember - particularly David – of what I’ll call routine life with their parents. Routine life can be dull – if any parent spends their entire waking hours playing games with, reading to and cuddling their children, there are not many.

Routine days will hopefully involve some of those activities for some of the time but there will also be sleep time, meal time and times when the children will be expected to be occupied in some manner while the parents attend to the day-to- day tasks of running a household. [ 182 ] These children likely have no memory of experiencing those kinds of times with their parents.

Instead, they see their parents twice weekly at a Ministry or Family Services visiting room where they are, for the entire time, the only focus of their parents and where the focus, quite reasonably in the circumstances, is on amusing and pleasing the children. It is for this reason that I do not see anything objectionable in the parents’ desire to give their children sweet treats at some visits, even though fruit would obviously be a healthier snack.

But this illustrates the artificial nature and environment of the visits. [ 183 ] The foster mother advised that Martha, in particular, seems to be aware of visiting days, even before she is told. She said the children do not resist visits and go willingly. She said, however, that when a visit is cancelled, the children do not app

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