THE MINISTER OF SOCIAL DEVELOPMENT Applicant v. C.P., D.L., G.C., and S.P., 2022 NBKB 228

2022 NBKB 228 COURT FILE: FDSJ 117-2022 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF SAINT JOHN BETWEEN: THE MINISTER OF SOCIAL DEVELOPMENT Applicant and C.P., D.L., G.C., and S.P. Respondents Before: Mister Justice Danys R. X. Delaquis Date of hearing: October 3-7, 2022 Date of Decision: November 22, 2022 Appearances: Corry Toole, K.C. - for the Applicant William Watts - for S.P. Jeremiah Larmer - for G.C. C.P. - did not attend D.L. - did not attend

SUMMARY: Guardianship Application pursuant to the Family Services Act Decision-making and parenting time pursuant to the Family Law Act

DECISION DELAQUIS, J.: OVERVIEW [ 1 ] On March 14, 2022, the Minister of Social Development (the “Minister”) brought a child protection application seeking guardianship of eight (8) children pursuant to s. 56(1) of the Family Services Act , S.N.B. c. F-2.2 as amended (“the Act ”). The eight children are as follows:

(1) S.L.W.-L. (D.O.B.: […], 2013) [“S.W.-L.”];

(2) K.P.W. (D.O.B.: […], 2014) [“K.P.W.”];

(3) P.K.S.C. (D.O.B.: […], 2015) [“P.K.C.”];

(4) A.T.M.I.C.W. (D.O.B.: […], 2016) [“A.T.C.W.”];

(5) R.D.D.P. (D.O.B.: […], 2017) [“R.D.P.”];

(6) P.A.K.P. (D.O.B.: […], 2018) [“P.A.P.”];

(7) L.C.D.K.P. (D.O.D.: […] 2020 [“L.C.P.”] and

(8) C.J.K.P. (D.O.B.: […] 2022 [“C.J.P.”]. [ 2 ] S.P. and G.C. are the biological parents of two children, P.K.C. and A.T.C.W. [ 3 ] S.P. and C.P. are the biological parents of 5 children, K.P.W., R.D.P., P.A.P., L.C.P. C.J.P. [ 4 ] S.P. and D.L. are the biological parents of one child, S.W.-L. [ 5 ] The Record on Application contains 15 different Orders issued between November 5, 2020, and August 26, 2022. On August 26, 2022, the Respondent G.C.’s request for state funded counsel was granted. [ 6 ] C.P. is, unfortunately, homeless and lives in a tent in Saint John.

D.L. has not participated in any meaningful manner at the appearances since the Minister became involved with his child. C.P. and D.L. did not attend the trial in relation to the Minister’s Application. [ 7 ] However, G.C. did attend and participated in the trial. On September 29, 2022, counsel for G.C. filed an Application (FDSJ- 410-2022) seeking sole parenting time and decision-making authority for the two children, P.K.C. and A.T.C.W., pursuant to ss. 52(3) , 52(4) (

b) and 54 of the Family Law Act , S.N.B. 2020 c.23 [“the FLA ”], in addition to no parenting time to S.P. pursuant to s. 52(3) , 52(4) (

a) and 53(1) of the FLA . [ 8 ] The parties all consented to both Applications being heard consecutively, with the evidence in one being evidence in the other, pursuant to Rule 6.01(1)(

d) of the Rules of Court . [ 9 ] The Minister did not oppose G.C.’s Application. In fact, the Minister confirmed in closing argument discontinuance of its Guardianship Application with respect to the two children P.K.C. and A.T.C.W. if S.P. consented. S.P. did confirm her consent with respect G.C.’s Application, but wishes to maintain some parenting-time with the two children. [ 10 ] The Minister’s Guardianship Application regarding the two children P.K.C. and A.T.C.W. is therefore discontinued by consent of the parties.

As a result, G.C.’s Application is allowed in part, with the parenting time issue remaining to be determined. FACTS [ 11 ] The Minister’s involvement with S.P. dates to 2008, and to 2005 for C.P. Since 2017, there have been 12 investigations by the Minister in connection with S.P. and C.P. together as parents. The history of the file demonstrates that the focus for the Minister has been how the parenting of the Respondents has affected the emotional/physical development and well-being of the children, in addition to issues of housing and domestic violence. [Page 14 of the Record].

Parenting and Visit Attendance Issues [ 12 ] S.P. confirmed at trial that she started her relationship with C.P. in 2014. They were married on January 20, 2017 and lived together since that time. She freely admitted that she has a tendency of getting involved in “toxic relationships”. S.P. believes that she can raise her children alone because they are well-behaved, but nonetheless agrees that she was frustrated and overwhelmed, especially when C.P. was incarcerated. Even then, she testified, C.P. would call her and still raise his voice and fight with her.

S.P. believes that things would have been different without C.P. in her life because, for example, she would have been calmer with the children. S.P.’s approach was to try to distract the child that wasn’t listening, rather than use a time out. [ 13 ] Ms. Noemi Delgado was the ongoing child protection social worker from March 12, 2021, until September 2, 2022. She explained in her Affidavit how she became involved in the file: On March 12, 2021, I attended the police station along with Social Worker Melanie Walsh.

The purpose was to take protective care of [A.] and [L.] who were with [S.P.] and [C.P.] at that time. I observed [C.P.] giving [L.] (4 month old) a bottle with water, I asked why he was giving [L.] water and he said they did not have any formula there. [A.] was quiet, she cried in silence when [S.P.] said “bye” to her. [L.] was wearing sleepers, no jacket or a winter suit, he had a blanket with him. I observed the parents having a car seat with them that they had taken from the car that was impounded.

The car seat was big enough for [A.], I am not sure how the parents were transporting [L.] in the car. [C.P.] was calm at the time of removal and told me the department did not have grounds to remove. [Page 9 of the Record]. [ 14 ] Erica Bannister is employed by Supreme Human Services as a family support worker and became involved with this family in November 2018. As of March 23, 2021, one of her roles was to supervise visits between the child, L.C.P., and the parents, S.P. and C.P. In her affidavit, Ms. Bannister recounts several incidents involving the parents, parenting issues and failure to attend visits.

For example, on April 15, 2021, C.P. produced a joint that he intended to smoke at one of the visits. C.P. became offended when Ms. Bannister attempted to advise him that he could not do so. [Page 112 of the Record]. [ 15 ] In March of 2021, S.P. was a witness to her best friend being murdered from her bedroom window. Although she gave a KGB statement to the police, no charges were laid. However, she was faced with threats as a result of her statement being made available. One of her friends ended up calling her a rat.

This made her scared and, as a result, she cancelled certain visits with the children. [ 16 ] S.P. and C.P. agreed to attend couples counselling in 2021. That did not work. Counselling was terminated after three sessions as they were not engaged. The parents also asked for mental health services, but according to Ms. Delgado, they never executed the consent forms to attend. [ 17 ] During the summer of 2021, S.P. and J.M. started a new relationship that caused a lot of conflict. Ms.

Delgado conveyed during her testimony reports of people with guns and dead snakes being left on the parents’ doorsteps during the summer of 2021. She testified that there was “always something going on”. [ 18 ] In October 2021, S.P. and C.P. moved to another address to get a “fresh start”. The Minister furnished the residence. Part of the Case Plan was to organize and clean the residence. It did not work out as planned. They were arrested one week later, and C.P. was incarcerated as a result, until December 2021. At that time S.P. was pregnant.

While C.P. was incarcerated, S.P. was dating someone else, others were “getting in” to the residence. S.P. missed several visits. Dog feces were found upstairs in the residence. The children were sharing beds and underwear. S.P. struggled to pay the rent and was eventually evicted in March 2022. The furniture supplied by the Minister ended up in the garbage. [ 19 ] The Case Plan to which Ms. Delgado was referred to in cross-examination is at pages 29-30 of the Record. She testified that there has been absolutely no progress in meeting the objectives in the Case Plan since it was signed by S.P. on May 14, 2021.

The Case Plan reads in part as follows: This plan will be assessed mid-June 2021, by then the social worker needs to see: - Parents have provided drug tests as expected (twice a month, randomly) and tests are negative;

- Parents have attended visits and showed positive parenting skills (attending the children's basic needs, having positive and integrations - no yelling, swearing - playing with them); - Parents have attended all medical appointments and scheduled them when necessary; - The house is clean and set up for the children, this needs to be maintained; - Parents have attended all counseling sessions - individual and couples counseling and are showing progress towards a healthy relationship; - Parents have participated in all Parent Aide sessions and they are showing that they are learning new parenting skills. [Page 30 of Record] [ 20 ] Ms.

Delgado further testified that while C.P. did produce one positive drug test (methamphetamines), S.P. has had clean tests since 2021. When confronted with the drug issue, S.P. became very frustrated with Ms. Delgado and raised her voice, while C.P. was yelling and swearing and saying that “it’s part of my culture”.

In any event, drugs are not the main concern from the Minister’s perspective, and certainly not compared to the many other parenting issues that confront the parents, and that affect the children. [ 21 ] While drugs are not a significant concern in this case, the evidence discloses that C.P., S.P. and J.M. have had constant involvement as either suspects or subjects in multiple criminal activities between February 2021 up to the time of the trial. S.P. has 15 entries on the Saint John Police Force database. C.P. has 12 entries.

J.M., with whom S.P. had a previous intimate relationship but pledged at trial to remain only as friends, pled guilty to, and spent time incarcerated for, three occurrences under s. 151 of the Criminal Code , and one under s. 152 . Furthermore, since March 1, 2022, J.M. “has been the victim of three (3) assaults and one (1) threat, as well as one (1) weapons offence.” [Pages 92-94 of the Record]. [ 22 ] Ms. Delgado testified that these incidents, whether they involved convictions or not, have had a significant impact on the children. [ 23 ] Ms.

Delgado testified that this case was all about conflict and chronic neglect. Some of the children had a doctor, while others did not. They did not receive their immunizations. They went extended periods of time without care coupled with significant conflict which included constant threats of physical harm to the parents. There was perpetual conflict, a lack of discipline and disorganized living arrangements. Overall, the parenting was described as “poor”. All of this, coupled with many missed appointments to visit the children, created a significant obstacle for the Minister in terms of reunification. [ 24 ] Ms.

Bannister explains in her affidavit that the parents, including S.P., failed to attend numerous visits with the children. From March 16, 2022, until July 15, 2022, the visits were only attended by S.P. However, during that time, Ms. Bannister observed that S.P. spent most of the time on her phone, that she had to prompt her for safety concerns and noted that she was not able to manage the children's behaviors. Ms. Bannister states the following at paragraph 16 of her Affidavit: I did not supervise another visit for [S.P.] until May 9, 2022. On this date, [S.P.] was 35 minutes late.

During the visit I witnessed “[J.]” throw a rock at a car and the people get out of the car and stab him. A fight then ensued and the police arrived and “[J.]” refused medical attention. I did not inform [S.P.] of the altercation during the visit. During the visit [S.P.] provided little parenting and needed to be prompted by me several times. [Page 120 of the Record] [ 25 ] Ms. Bannister explained that C.P.’s incarceration from October to December 2021 made the visits more difficult for S.P. as she was on her own. S.P.’s attendance at visits with the children was described by Ms.

Bannister as “iffy” when C.P. was in jail. [ 26 ] Based on Ms. Bannister’s Affidavit, S.P. did not attend at least 14 visits between March 16, 2022, and September 16, 2022. Ms. Bannister indicates that visits were placed on hold after S.P. did not attend any of them between April 20-25, 2022, and put on hold again on May 11, 2022. S.P. advised Ms. Bannister on May 30, 2022, that she was in Rexton N.B. and “would be back soon”. No visits took place from May 30, 2022, until August 5, 2022, as S.P. confirmed. [Page 120 of the Record].

[ 27 ] The evidence at trial is that S.P. has had little to no contact with the children between May and September 2022. The Minister worked on a plan for S.P. to see the children but she “disappeared” according to Ms. Delgado. In July 2022, S.P. spent time in a shelter in Moncton. One (1) visit was organized on July 15, 2022, with S.P., with little to no contact since that time. [ 28 ] Ms. Bannister testified on cross-examination that the reason the visits were placed on hold was due to the inconsistency of the parents’ attendance.

She also confirmed that S.P. did not “smoke any joints during visits” and that there were a few visits that did not raise any issues or concerns. [ 29 ] In addition, Ms. Bannister confirmed that S.P. was capable of following suggestions and that she never hit the children. Ms. Bannister also testified on cross-examination that there were generally poor behaviors with the children. At times they would play in the toilet. She referenced one incident of electrocution while playing with wires. [ 30 ] Ms.

Delgado was asked pointedly in cross-examination why the children could not be returned to S.P. alone, given that C.P. is clearly not in any position to parent the children. Ms. Delgado’s evidence is that firstly, there is no safe place for the children to go to because S.P. does not have housing to accommodate all the children. Second, even if S.P. did have proper housing, she has no support systems in place to help her manage all the children. Third, there has been no improvement with respect to implementation of the Case Plan put in place a long time ago.

Lastly, S.P.’s relationship with J.M. is not stable, nor in the best interests of the children given J.M.’s history and conduct. It bears noting that while J.M. attended the trial with S.P., she testified that they are only friends and that she does not reside with him either. [ 31 ] Ms. Patricia Scott testified as to her involvement as a social worker in this file and submitted two Affidavits that are in the Record. Ms. Scott is the Supervisor of the Child Protection Team and therefore was Ms. Delgado’s Supervisor at all material times. Ms.

Scott attended a number of visits and was also involved in case planning on the file. Lastly, Ms. Scott took over management of the file after Ms. Delgado left. [ 32 ] Ms. Scott readily agreed that parenting eight (8) children would be challenging for any parent. However, she has serious concerns about parenting in this case as S.P. and C.P. struggled to react and enforce any type of discipline. The Minister was focused on trying to provide structure and stability for the children. The children were not the challenge because when the parents “stepped in”, the children responded appropriately. [ 33 ] Ms.

Scott also confirmed that C.P. and S.P. resorted to food banks on and off for most of the period of protective care. Even when they had financial assistance from the Minister, they struggled to pay rent, even though that was subsidized as well. [ 34 ] S.P. also missed medical appointments for the children because of conflict with C.P. and her “current partner”, J.M. S.P. living with J.M. is, according to Ms. Scott, definitely a barrier to reunification. [ 35 ] On cross-examination, Ms. Scott testified that all children have shown signs of trauma and emotional dysregulation, especially S.W.-L. and K.W.P.

The children do not have any developmental challenges. [ 36 ] S.P. saw C.P. about one week before trial. She stopped by his tent to see him. She had not seen him for the last 30 days. C.P. has a drug addiction and confirmed he has no intention at all to be involved with the children. S.P. stated that it will not be possible to fix their relationship. She realized this in August 2022. [ 37 ] S.P. explained that J.M. has been her friend since they were 15 years old. They are now 30 years old. She admitted to having a sexual relationship with J.M. in the past.

She tried again in February 2022, but it did not work out. S.P. stays with J.M. “sometimes”. She was asked why her relationship with J.M. is “back and forth”. Her response was that she needed a place to stay until she sorts out her housing issues. [ 38 ] S.P. confirmed that the children did have chronic head lice. She would deal with the problem by cutting hair and buying special shampoo. She blamed the school because it had too many cases of lice and her children inevitably were exposed every time they went to school. S.P. denies all negligence with respect to head lice or failure to treat it in her children.

In fact, she testified that she called the

school and complained about it, but that they did not listen. Her approach was that it was better to send the kids home to prevent further transmission. [ 39 ] S.P. spoke of medical concerns regarding the children. L.C.P. did not have a doctor for some time and went to public health instead. She noted that L.C.P. was taken into care when he was very young and a doctor was appointed when he was taken. Dr. Thomas is P.A.P.’s doctor, but S.P. did not see eye to eye with him at all and, as a result, she took him to Dr. Gander instead.

However, she was not making regular appointments and the children were not up to date on immunizations even though she thought they needed them. S.P. agrees with the Minister that this was an ongoing legitimate health concern. [ 40 ] She candidly admits that after reading the affidavits filed by the social workers that she realizes that some of the things she did were “not great”.

She allowed her relationships to affect how she cared for her children. [ 41 ] In terms of criminality, S.P. confirmed that she had one conviction for driving while suspended, however quickly stated that the children were not in the vehicle at the time and that “it won't happen again”. She also agreed that she had used drugs socially, but did not have any addiction issues. She has had one positive test since age 15 for methamphetamines. On that occasion, she went to a bar with C.P. and took a speed tablet. She has taken 10 tests in the past year and only one came back positive.

She testified that she is willing to submit to random drug testing. She further testified that she has not used since that positive test and added that she has no alcohol issues. [ 42 ] S.P. testified that she always cared about seeing the children but confessed that there was a lack of ability to contact her due to what she described as her “phone situation”. She explained that C.P. would often break her phone and agreed that this was a legitimate concern by the Minister.

Part of her plan is to get a landline to solve the issue. [ 43 ] S.P. testified that she has built up a support system including receiving help from a friend, with respect to babysitting. She has confirmed support also from C.P.'s foster mother, a relationship she has built up after the children were taken into care. S.P. claims that both her friend and C.P.'s foster mother are available to help her whenever necessary. Housing Concerns [ 44 ] The evidence shows a history of housing instability and frequent moving for S.P. that dates to 2008 and continues up to time of the trial.

She has moved back and forth from New Brunswick, to Prince Edward Island, to Calgary, Alberta and within New Brunswick on numerous occasions. [ 45 ] The Minister was made aware by the Manager of NB Housing on July 24, 2019, that S.P. had not paid her rent and owed $4,000. She faced a repayment plan at that time and eviction.

Unfortunately, S.P. did not follow through on using a portion of her Child Tax Benefit payment to help repay the rent that was past due. [Page 10 of the Record]. [ 46 ] S.P. currently resides with her brother in an apartment and testified at trial that her plan is to eventually secure a place to stay with NB Housing. [ 47 ] Ms. Delgado testified that S.P. and C.P. had moved a lot in the past nine years; they lived in Saint John, Moncton, on the reserve, Prince Edward Island and in Alberta as well. Her evidence is that they moved as soon as the Minister became more involved in terms of child protection. [ 48 ] Ms.

Christin Swim is the General Manager of the Skigin-Elnoog Housing Corporation. The Corporation makes 300 non-profit, low rent, housing units available to individuals who qualify. The Corporation is not affiliated with NB Housing and offers housing exclusively to Indigenous people. [ 49 ] Ms. Swim stated at paragraph 3 of her Affidavit how she became involved in housing for S.P. and C.P.: 3.

My colleague and I went to Saint John to interview [S.P.] and [C.P.] on September 9th, 2021. [S.P.] and [C.P.] stated that they did not have a yard for the children to play outside, nor the space to accommodate such a large family inside their current home. Their current

home was apparently very dangerous as [S.P.] had witnessed the murder of her best friend by a very bad man and he was now harassing her and the family. [S.P.] made it appear that she was the victim in this situation and needed to flee the area due to these threats. My colleague and I were hesitant about renting to the clients, but felt compassion toward the situation and, as a result of that interview, we decided to sign a lease with them. [ 50 ] Ms. Swim also relates how the lease was terminated in her Affidavit: 8. The rent for January 2022 was not paid.

Therefore, we decided to seek the eviction of [S.P.] and [C.P.]. 9. We continued to receive complaints in the new year regarding domestic disturbances and we were advised that the police were called on February 10, 2022 and February 17, 2022 as [C.P.] was allegedly stabbed by [S.P.] and had requested the neighbors call the police. 10.

On February 28, 2022 we were advised that the police needed to attend the home again due to the same violence, as well as multiple complaints of a sexual offender living in the unit with [S.P.] On this date, my office applied to the sheriff for assistance in having [S.P.] and [C.P.] removed. 11. [S.P.] and [C.P.] should have vacated the unit on February 26, 2022 as per their Notice to Vacate. 12. On March 9, 2022, the Sheriff's Office met with Skigin-Elnoog Housing Corporation staff to act on the eviction process.

Upon arrival at the residence, [S.P.] and [C.P.] were in the unit and proceeded to pack up very few personal belongings. [S.P.] had two black eyes and a very fat lip when she was vacating the unit. [S.P.] and [C.P.] put their extra belongings in the storage shed, stating that they would be back this week for those items. 13. Staff from Skigin-Elnoog Housing Corporation returned to the unit on March 15, 2022 to clean it out as everything was left behind.

There were a lot of personal items for the children and parents, so I contacted [C.P.], [S.P.] and her brother [J.], as well as Social Development to arrange to have some of the items collected for the children. 14. The unit was not in good shape and needed a complete renovation, even though [S.P.] and [C.P.] were only renting at that location for five (5) months. We had to remove multiple items that were used for drug paraphernalia, including many meth pipes and homemade bongs and saw evidence of heavy drug use. 15.

We also discovered that the clothes dryer was missing from the unit. [ 51 ] In cross-examination, Ms. Swim confirmed that the facts in paragraph 3 of her Affidavit were disclosed to her by S.P. Ms. Swim further confirmed with respect to paragraphs 13 and 14 of her Affidavit that she was present and that she was “hands on”. In other words, the facts in those paragraphs are based on her personal observations. Lastly, Ms.

Swim confirmed that the sex offender she referred to in paragraph 10 of her Affidavit was in fact J.M. [ 52 ] The instability in terms of housing for S.P. and C.P. in January 2022 is illustrated by the detailed evidence provided by Ms. Scott at paragraph 7 of her Affidavit, which I will take the liberty of referring to in full: 7. On January 14, 2022, I received information by phone that support worker Rachel Robichaud had witnessed an altercation between [S.P.] and [C.P.] outside their home on January 13, 2022, after leaving the hospital.

I then attended the home at [address] to ensure things were calm for the visit planned for that morning. [C.P.] and [S.P.] were present when I arrived. [C.P.] stated they were just cleaning up and preparing for the visit.

I asked them what happened yesterday, both stated they had an argument that got loud but denied any physical violence, they denied police were called but [S.P.] stated she did leave the home. [C.P.] stated they have to work some stuff out, it was the accumulation of the baby's removal, [S.P.]'s brother living with them, and they arrived home from the hospital to an eviction notice on the door. [S.P.] stated her brother was a part of the issue, he wasn't really staying there at present but was involved with methamphetamines, and she stated he was causing them problems and got them into trouble with the landlord. [S.P.] told the same story as [C.P.] had told me the day before about her brother putting methamphetamines in the sugar bowl at their home.

I advised them both that he could not be there for the visits, or living there if the children are to be in the home. [S.P.] and [C.P.] stated he was gone and staying with his girlfriend. [S.P.] and [C.P.] stated they were working something out with the landlord and felt they wouldn't be evicted.

[Pages 97-98 of Record]. [ 53 ] Ms. Scott testified that in February-March 2022, S.P. and C.P. were out of housing and it was chaotic. Ms. Scott spoke to S.P. about going to Hestia House to find some stability. For S.P. the chaos led to a total lack of focus. [ 54 ] It was apparent through Ms. Scott’s testimony, and her Affidavit, that S.P. was living with J.M. in February 2022. Apparently, S.P. was in the process of breaking up with him and was “back and forth” with him at that time. On February 11, 2022, when Ms.

Scott arrived for a visit with the children, S.P. and C.P. had a “big fight” at home which involved kicking out a prostitute while the kids waited in the vehicle. C.P. had mentioned at that time that J.M. and him were “back and forth” as well. Ms. Scott suggested that they have separate visits due to the chaos, but the parents did not agree to proceed in that fashion. [ 55 ] On February 16, 2022, Ms. Scott made an unscheduled visit to the property. During that visit, C.P. advised that he would likely be living in a men’s shelter the next day.

S.P. advised that she had half of her stuff there and half at J.M.’s house, but that she was not “prepared to move back in now.” [Page 100 of the Record]. [ 56 ] Ms. Scott then states at paragraph 17 of her Affidavit: 17. On February 17, 2022 the unit duty worker received a phone call from Kristen Swim, General Manager with Housing […]. She advised that she received an e-mail from a neighbor last night, stating that [S.P.] had stabbed [C.P.] and that police were at the home for a long time last night.

She also advised that they will be contacting the Sheriff's on February 25, 2022 as to evict them as they have still not paid rent. [ 57 ] On that same day, February 17, 2022, S.P. and C.P. attended Court and consented to a two-month Custody Order. Ms. Scott met with them after Court and an argument ensued about why the rent was not paid. C.P. left abruptly. S.P. advised Ms.

Scott that “she didn’t want to be with C.P., she didn’t like the way he treated her, that when he went to jail, she got a clear view of how life could be and was with J.M. as he treats her good.” [Page 101 of the Record]. [ 58 ] C.P. then advised Ms. Scott on February 22, 2022, that S.P. did stab him “and sent people to the home to get him and he was chased down the street.” [Page 102 of the Record]. [ 59 ] The next day, S.P. advised Ms. Scott that she was evicted but had paid rent to NB Housing.

S.P. further indicated that she would apply for housing and “get her own place” and also, that she believed C.P. was using drugs and “didn’t feel safe with the kids right now.” During that same conversation, S.P. advised Ms. Scott that she was no longer in a relationship with J.M., but they were friends and that “she would not allow him to be with the kids but that when she had the kids back with her, she would get a babysitter to see him.” [Page 103 of the Record]. [ 60 ] Ms.

Scott states the following in her Affidavit with respect to a conversation she had with S.P. shortly before the trial, on September 23, 2022: 16. On September 23 rd , I attended Supreme Human Services where [S.P.] was having her visit with the children. I stayed to observe the visit for a short period and gave [S.P.] a paper with both her lawyer’s name and contact as well as the trial dates. [S.P.] agreed to meet with me Monday September 26 th at 11 am. We spoke outside the visit room at [S.P.]'s request. [S.P.] advised the following: (

a) she is still living with [J.M.] but that she is only there as she has no other places no other place to go. (b) [S.P.] stated she may have found an apartment and wanted to give the landlord my contact phone number. She was unsure when she could move into her apartment.

(c) [S.P.] did not attend her Mental Health Appointment last Friday as she had previously told me as [J.M.] wouldn't let her. She stated she does have contact with C.P. who is still residing in a tent off of […] Street. [ 61 ] At trial, S.P. testified that she resides with her brother for the time being. Her plan is to get into housing via NB Housing but that she “needs time”. S.P. is on a waiting list with Elsipogtog First Nation.

She admits that she needs to be more persistent in the housing issue. [ 62 ] On cross-examination, S.P. was pointedly asked that she had since at least March 2022 to find housing and that it would have been more prudent to actually start looking for housing before the trial, especially when she knew about the trial dates some time ago. S.P. admitted that her last conversation with the reserve about housing was two weeks after leaving Elsipogtog, in March 2022. Domestic Violence [ 63 ] In her Affidavit, Ms.

Bannister recounts numerous occasions where C.P. would yell at S.P. which resulted in them bickering and swearing at each other in front of the children and requiring a social worker to intervene. [ 64 ] On May 6, 2021, S.P. disclosed to Ms. Bannister that C.P. “had hit her in the mouth the night before and she had not slept.” [ 65 ] Ms. Bannister recounts various incidents where C.P. used vulgar language, including when one of the children had an accident in his pull up.

The incidents of C.P. and S.P. yelling and swearing at each other are numerous and span the entire period from March 23, 2021, to at least March 11, 2022. Ms. Bannister recounts the events of March 11, 2022, at paragraph 10 of her Affidavit: 10. On March 11, 2022 I supervised a visit. I received a call on my way to the visit to pick up [C.P.] from the Days Inn hotel. I arrived at the hotel to pick him up and [S.P.] came out and asked if I could drop [C.P.] at the bus station as he was leaving town to return to the reserve. They started to argue between themselves with [C.P.] telling [S.P.] how much he hated her.

I told them one needed to get into the car as the children had been in the car long enough.

I brought [C.P.] to the bus station but he found out that his ticket had been for the previous day, so he decided to participate in a visit with the children at our office. [C.P.] could not concentrate on the children and I had to constantly cue him for their care including diapers, safety concerns, and lunches. [S.P.] joined the visit later but the parents continued to focus on their issues rather than the children. [S.P.] had two black eyes and told me that “[J.]” gave them to her for kissing a girl. [Page 119 of the Record]. [ 66 ] Ms.

Bannister noticed, for example, during visits involving all the children that things were a little more chaotic for the parents. They required prompts to get the children to use the washroom which were not followed and resulted in accidents. Otherwise, the children were shown positive affection and provided snacks and meals during those visits. [ 67 ] In further cross-examination, Ms. Bannister confirmed that when S.P. was given two black eyes by J.M., she was with him, and that he is still with her in Court during the trial. It was Ms. Bannister’s understanding that J.M. was a registered sex offender. Ms.

Bannister also confirmed that in August 2022, C.P. had overdosed and was living in a tent near uptown Saint John. [ 68 ] S.P. testified at trial that there was no physical violence between her and C.P. She indicates that the two black eyes referred to by the social workers were caused by a bar fight with two other women. She claims that any domestic violence with C.P. is “mostly verbal”. He occasionally slaps the children on their hands, but not very hard. He has hit children, but not to the point where they cry.

S.P. would advise C.P. to stop this conduct however it would inevitably lead to an argument between them. There were a number of sibling squabbles, as S.P. describes them, and it was hard for her to find effective ways to discipline her children in those circumstances. She does admit that there was quite a bit of verbal abuse by C.P. whenever he was around. She also verbally abused C.P., but not the children. ISSUES

[ 69 ] The issues that I must determine are as follows: 1. Counsel for S.P. raised evidentiary issues which focused essentially on some hearsay statements in affidavits filed pursuant to s. 9 of the Act . 2. Whether it is in the best interests of the six (6) children, S.W.-L, K.P.W., R.D.P., P.A.P., L.C.P., C.J.P., to grant a guardianship order to the Minister pursuant to s. 56(1) of the Act . 3. In the event guardianship is granted in relation to the six (6) children S.W.-L, K.P.W., R.D.P., P.A.P., L.C.P. C.J.P., should access be provided to S.P., C.P. and/or D.L. 4.

Whether parenting time should be granted to S.P. with respect to the two children P.K.C. and A.T.C.W. pursuant to s. 52(3) , 52(4) and 54 of the FLA . LAW & ANALYSIS Issue 1 – Ruling on Evidence [ 70 ] Affidavits and other documentary evidence from prior proceedings between the parties were included in the “Record of

Section 9 Affidavits”, pursuant to

section 9 of the Act and on consent. In this matter, S.P. challenges the admissibility of certain portions of the s. 9 affidavit evidence. I heard argument from all counsel on this point. I indicated that I would deliberate and make my ruling later after the parties have closed their respective cases. [ 71 ] I first refer to

section 9 off the Act : Admissibility of evidence taken on previous proceeding 9 In considering any application brought under this Act, the court, upon notice to the parties, may allow to be read into the record as evidence, or, upon notice of the nature of the evidence, may take into consideration without reading into the record, any evidence taken on any previous proceeding, if that evidence is informative in any way as to the psychical, psychological, social or physical development of the child, his parent or any other person living with the child or in such a close relationship with the child as to be in a position to influence the nature of the care and control exercised with respect to the child, and if it is relevant to any matter under consideration by the court. [ 72 ] More specifically, S.P. argues that certain portions of

section 9 affidavits are hearsay. She relies essentially on the argument that the criteria of reliability in relation to this evidence has not been met. In this case, the necessity requirement is not argued and, in fact, is conceded. I will therefore focus on the argument that the evidence is not reliable. [ 73 ] In response, the Minister has provided the Court with some jurisprudence to support its position that the impugned evidence is admissible based on the applicable test. The cases submitted to the Court included M.V. and C.H. v. MSD 2021 NBCA 42 ; MSD v.

J.L. and J.F. 2022 NBQB 84 and Shawn Murray Fredericks v. R. 2018 NBCA 56 . [ 74 ] Before turning to the specific argument raised by S.P., I will refer to general principles that apply to hearsay evidence. Madam Justice Bourque recently summarized the applicable principles in MSD v. J.L. and J.F. , supra in the context of a guardianship application. I will therefore borrow her

summary herein:

[17] Hearsay consists of an out of court statement offered to prove the truth of its content. Unless the statement falls under one ofthe exceptions in the common law or the evidence is admitted pursuant to the principled approach, hearsay is not admissible. [18] Hearsay statements made by a child will often not satisfy the common law exceptions to the hearsay rule. However, there aretimes when the child’s hearsay evidence is the best evidence of the issue being litigated. For this reason, courts have adopted “a muchmore benign attitude to children’s evidence” (see: R. v.

B.(G.) [1990] S.R.R. 30). [19] Our Court of Appeal recently addressed the issue of hearsay statements in child protection matters in its decision of M.V. andC.H. v. Minister of Social Development, 2021 NBCA 42. At paragraph 31, the Court referred to the distinction between civil andcriminal proceedings when it came to applying the hearsay rule: Professor David Paciocco, as he then was, in an

article entitled "The Principled Use of Hearsay in Civil Cases: A Technical Guide toAvoiding Technicality" (2008) 87:2 Can. Bar. Rev. 277, recognized the distinction between criminal and civil cases in the application ofthe principled exception. In his view: Perhaps the most telling reason for lessening the intensity of the hearsay rule in child protectionmatters is that the proceedings are less adversarial and more inquisitorial. [p. 286][Emphasis in original] [75] In Minister of Social Development v. S.B. and J.B., 2022 NBQB 111 , Petrie, J. explained, with reference tojurisprudence from our Court of Appeal, that while

section 9 affidavits may bear some importance on the issue before the Court, they arenot determinative: 12. Affidavits and other documentary evidence from prior proceedings between these parties were included in the record before mepursuant to

section 9 of the Act and on consent (see the recent discussion of the New Brunswick Court of Appeal in M.V. and C.H. v.Minister of Social Development, 2021 NBCA 42 (paragraphs 46 – 47)). I found this historical evidence to be at least of some relativeimportance as to their abilities to parent, although certainly not determinative (see Quigg, JA in V.C. and J.C. v. Minister of SocialDevelopment, 2015 NBCA 28, at paragraph 22; and M.V. and C.H. v. Minister of Social Development, 2021 NBCA 42).

Additionalaffidavits were also filed by the Minister to update the Court of events during the three month adjournment. [76] Also, during argument, counsel for the Minister did agree that certain hearsay statements in the

section 9 affidavits based on“referrals” would not be tendered for the truth of their contents. I will briefly discuss this issue because it is often a source of contentionin child protection hearings, despite the fact that Courts have already provided direction. On this point, I note the comments of Sherr, J.in Children’s Aid Society of Toronto v.

B.B., 2021 ONCJ 646: [37] Paragraphs 7-30 of this affidavit contained the mother’s history as a crown ward, and the history of referrals about the motherto the society. [38] During argument, the society indicated that they would not rely on the mother’s history as a crown ward, so I did not considerparagraphs 7-11 of this affidavit. [39] The history of society openings covers the period from 2001- 2009. This is relevant evidence, as a backdrop to consider themore recent protection concerns.

The evidence from the opening in 2001 related, to a limited extent, to past parenting and the court canconsider this pursuant to subsection 50 (1) of the Act. I find that the presentation of the historical evidence by the society in this form(summarized by the current worker) was necessary. There are multiple persons referred to in the affidavit who provided the societywith evidence about the mother over this time span. It would be unrealistic to obtain affidavit evidence from each of them, so many yearsafter their involvement.

It would also be unfair to bombard the parents with voluminous historical records from the society. Further, theevidence was recorded by society workers, who had a duty to record the information contemporaneously, and it is likely more reliablethan the evidence that could be obtained from those witnesses today. Lastly, the reliability of this evidence was buttressed by themother’s acknowledgement of historical mental health and substance abuse challenges, much of which she attributed to a combination ofcocaine use and being given inappropriate anti-psychotic drugs by her doctors.

The mother’s position was that she had adequatelyaddressed these issues at the time of the child’s apprehension, not that these issues had not existed. [40] To the extent that the historical society information contained first-hand hearsay, I considered it, applying the principledhearsay exception of necessity and reliability set out in R. v. Khan, (SCC), [1990] 2 S.C.R. 531. I considered second-hand hearsay (reports made by community referrals to the society) only for the purpose of understanding why the society acted in theway it did, and not for the truth of the contents.

Due to the historic and second-hand nature of much of the evidence, I attached lesser

weight to it. [77] The Court in DCP v. B.G. and T.W., 2019 PESC 37 made the following point about the use of “referrals” or“anonymous sources” in child protection cases: [17] Counsel for the parents raised concerns regarding the inclusion of so-called “anonymous reports” being presented on behalf ofthe Director. There is no question confidential anonymous reports are an integral part of the child protection scheme. The ultimate goalof course 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. [78] For further discussions on the admissibility of “referrals” to child protection services, I refer to J.B. (Re) (NLCA) at paragraphs 98 to 126, Nunavut (Director of Child and Family Services) v.

S.Q. and L.K. 2013 NUCJ 5 and DCPv. C.P. & T.P., 2014 PECA 18 at paragraphs 38 to 44. [79] In essence, hearsay evidence should not be relied upon for the truth of its content in any matter, including for the determinationof crucial issues in child protection hearings. However, “[H]earsay may be admitted not for the proof of its contents but to complete thenarrative or to put things in context. This exception to the hearsay rule involves a weighing of the probative value of the evidence versusits prejudicial effect”: DCP v C.P. & T.P., 2014 PECA 18 at para. 48.

Information from primary sources that provides context, orrecords made from trustworthy circumstances, may be weighed in the decision-making process. [80] In this case, I will not consider any of the affidavit evidence that relies on referrals for the truth of their contents. I will only treatthat evidence for the fact that a referral was received by the Minister about a particular event or incident, but not that the incident orevent happened the way it was reported by the referral source. [81] In DCP v.

C.P. & T.P., supra, the Prince Edward Island Court of Appeal could not have sent a clearer message with respect tothe treatment of hearsay evidence in child protection cases. It is a message that I agree with, and here it is: [4] Child Protection cases are unique. The Director must meet statutory timelines and therefore must gather evidence quickly andefficiently. The evidence at interim hearings, and frequently, as well at protection and disposition hearings, is tendered by way ofaffidavit.

In order for the Director to explain why a particular decision was made, the affidavit often contains details of anonymousreports.

A practice has developed whereby counsel and the courts do not apply the rigors of the law of evidence to these affidavits,relying instead on the wisdom of the trial judge to ignore the otherwise inadmissible evidence in arriving at a fair and just decision. [5] The difficulty with this approach is three-fold: the danger that highly prejudicial evidence of limited probative value willunconsciously bleed into the trial judge’s reasoning; the perception of trial unfairness that may develop from a belief that parents havelost their children due to hearsay without any real ability to cross-examine and challenge the evidence; and the danger that the sheervolume of hearsay evidence can overwhelm the admissible evidence. [6] A trial is a search for the truth.

The law of evidence as it has been developed and refined over hundreds of years facilitates thesearch for the truth. It is designed to weed out unreliable evidence so that decisions are based on trustworthy evidence. This, in turn,enhances the faith and trust of litigants, and the public, in the fairness and integrity of the judicial system. A decision to remove a childfrom the care and custody of its parents, either temporarily or permanently, is a serious one, which should only be made on evidence thatis trustworthy.

Complying with the laws of evidence in child protection cases is not a burden on the parties; it is an obligation. [82] I note that our Court of Appeal in M.V. v. Minister of Social Development, 2021 NBCA 42 referred to D.C.P. v. C.P.

& T.P., with approval, except that the issue before the Court of Appeal was different: [29] Relying on D.C.P. v. C.P. & T.P., 2014 PECA 18, [2014] P.E.I.J.

No. 45 (QL), the appellants argue a new trial is warranted.In C.P., Mitchell J.A. found there was sufficient collateral evidence to support a guardianship order, but concluded: However, on the issue of the disposition, I am of the view that highly prejudicial hearsay evidence permeated the trial, unnecessarily,and tainted the trial judge’s reasons to the point that the critical assessment that permanent placement is in the best interests of thechildren S. and K. is vitiated.

I would therefore set aside the disposition and remit the matter back for a new trial. [para. 84] [30] If the circumstances were the same in this case, I would have no hesitation in coming to a similar conclusion. The relianceon untested hearsay evidence, in the absence of a recognized exception, is an error of law, but that is not what happened in this case.[Emphasis mine]. [83] I have taken the liberty of addressing the evidentiary points in detail because they were raised in this proceeding, but for anotherreason as well.

Basic elements of the law of evidence, including those that relate to hearsay evidence, must be adhered to when draftingAffidavits in child protection matters. The Minister relies considerably, but not exclusively, on Affidavit evidence to justify decisionsmade with respect to protection of children and to meet the applicable burden of proof. It is therefore incumbent upon the Minister to fileAffidavit evidence in child protection matters that is free of evidentiary deficiencies and that is otherwise admissible.

Otherwise, theMinister should be held to account with all the consequences that follow. [84] In this case, while hearing submissions from counsel, I inquired about the distinction between the reliability test as a thresholdrequirement for admissibility on the one hand, and the notion that the evidence may not be ultimately reliable and should therefore begiven the weight it deserves, on the other hand. In other words, I tried to highlight the distinction between threshold reliability andultimate reliability.

I made this inquiry because it was not quite clear to me whether one or both of those concepts were being argued atthe same time, and for the same purpose. [85] Counsel for S.P. clearly stated that he was “objecting” to the evidence at this stage. The essence of the argument was that theevidence was not reliable because it was “an exaggeration”, or even a “wild exaggeration”, and that “there is nothing here contextually tomake this reliable”. More specifically in objecting to paragraph 3(

o) of the Affidavit of Jeanne Connors, counsel argued that it was“perhaps reliable; perhaps it isn’t”. [86] The point was made as well by counsel with respect to certain portions of the impugned evidence that there was no othercorroborative evidence to make it reliable. However, counsel was not “debating that the statements were made”. During his argument,counsel did not refer to, or apply, any of the factors pertinent to threshold reliability referred to by Justice Bourque in MSD v. J.L. andJ.F. or any other case law.

Furthermore, counsel never requested cross-examination of any of the affiants of the impugned evidence, nordid he request a voir dire either. [87] In this matter, the Court explained on more than one occasion the distinction between threshold reliability and ultimatereliability. Despite guidance from various Courts, this is an issue that continues to be argued and, on occasion, misunderstood, in childprotection cases. I will therefore refer to certain case law in the hope of clarifying the distinction. [88] The Court in The Children’s Aid Society of St. Thomas and Elgin v.

A.H., 2017 ONCJ 852 , upheld by the OntarioCourt of Appeal at A.H. v. S.B., 2018 ONCA 347 , provided a succinct explanation of that distinction: [36] The identification of hearsay is determined by the identification of the purpose for which the evidence is tendered. Hearsay isthe out- of- court utterance of a person tendered by a party to prove the truth of the assertions made in the utterance.

An out- of- courtstatement does not constitute hearsay if it is not tendered for the purpose of proving the truth of the contents of the statements.Sometimes the probative value of the statement comes solely from the fact that it was made, not from its truth. [42] In addition to establishing necessity, the party seeking to tender an out-of-court statement must establish that the statementpasses a certain threshold of reliability.

Threshold reliability is established when the hearsay "is sufficiently reliable to overcomethe dangers arising from the difficulty of testing it [without the benefit of contemporaneous cross-examination of the declarant attrial]". Once this threshold is passed, the trier of fact may invoke the discretion to consider the evidence in the fact-findingprocess. The assessment of the ultimate reliability of the truth and accuracy of the hearsay utterance is, of course, notdetermined until the trier of fact considers all of the evidence and applies the appropriate standard and burden of proof.

[Emphasis mine] [89] Fredericks v. R., 2018 NBCA 56 is a case that was submitted to the Court for review by counsel for the Minister. Inthat case, the Court of Appeal explained that: [75] For a statement to be procedurally reliable, there must be adequate substitutes for the traditional method of testing of the evidenceby contemporaneous cross-examination. “These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate thetruth and accuracy of the hearsay statement”: Bradshaw, at para. 28.

They “include a video recording of the statement, the presence of anoath, and a warning about the consequences of lying” and are usually coupled with “some form of cross-examination of the declarant,such as preliminary inquiry testimony […] or cross-examination of a recanting witness at trial”: Bradshaw, at para. 28. [76] As for substantive reliability, it is established if the circumstances in which the statement was made make it inherently trustworthy.To determine this, the trial judge can also consider any evidence that corroborates or conflicts with the statement. The standard is high.

Itrequires the judge to be satisfied “that the statement is ‘so reliable that contemporaneous cross-examination of the declarant would addlittle if anything to the process’”: Bradshaw, at para. 31, quoting from Khelawon, at para. 49. In assessing substantive reliability, the trialjudge may consider corroborative evidence if it establishes that alternative and even speculative explanations for the hearsay statementsare unavailable: Bradshaw, at para. 48. [90] I again refer to Justice Bourque’s comments in MSD v.

J.L. and J.F. supra, but more specifically on the issue of reliability, asshe explains its application when confronted with a hearsay challenge to evidence: [26] In addition to being necessary, an out of court statement made by a child must also be reliable in order for it to be admissible. Inthe recent Ontario decision of Y.M.S. v. R.O.S., 2021 ONSC 6684, Justice Doi summarized the reliability requirement at paragraphs 34and 35 of his decision which I find helpful.

He wrote: The requirement for threshold reliability asks whether the child's hearsay statement is sufficiently reliable to be admitted into evidence:Bradshaw at para 24; Khelawon at para 49; G.S. at para 12. Threshold reliability requires a consideration of all relevant factorssurrounding the statement, such as the timing of the hearsay statement, the demeanour of the witness that is testifying, the child'spersonality, intelligence and understanding, and the absence of any reason to expect fabrication, which are non-exhaustive factors: Y. atpara 134; Khelawon at para 51; Khan at para 30.

The court must be satisfied that the statement was accurately and objectively reported,and that the child was not manipulated, coerced or pressured into making the statement: Ward at para 15; Children's Aid Society ofMetropolitan Toronto v. M.(R.), [1992] O.J. No 1097(CJ) at paras 15-16. The court should also consider whether the witness that isgiving evidence to provide the out-of-court statement has a vested interest in the outcome of the case; Ward at para 17.

A hearsay statement is admissible if substantive reliability is established, namely that the statement is inherently trustworthy given theconditions when it was made and any corroborating evidence: Bradshaw at para 30; Khelawon at paras 4, 62 and 94-100; G.S. at para16. [27] I am also instructed by the following comments of Fisher, J., as she then was, in D.A.M. v.

D.M.T., 2013 BCSC 359 atparagraph 24: Reliability for the purpose of admissibility, or threshold reliability, is aimed at identifying circumstances where the inability to test thehearsay evidence is sufficiently overcome to justify receiving it as an exception to the general exclusionary rule. This requirement maybe met by showing that sufficient trust can be put in the truth and accuracy of the statement because of the way in which it came about, orby showing that in the circumstances the judge will be able to sufficiently assess its worth.

The presence of corroborating or conflictingevidence may also be considered: see R.v. Khan, R. v. Khelawon, 2006 SCC 57 .

[28] Several elements which may point to reliability were established in R.v.Khan, supra, and the subsequent cases which haveapplied Khan.

The non-exhaustive list of these elements includes: - The intelligence and understanding of the child - The absence of motive to fabricate - The absence of motive or bias of the person reporting the statement - The spontaneity of the child’s statement - The absence of suggestion, manipulation or coaching of the child - The child’s statement is consistent over time - The child’s statement is corroborated by other evidence [29] Not all the above indicia have to be established to perfection in order for the child’s statement to be admissible.

The variouselements identified will go to the weight I ultimately attribute to each of the statements (see: Children’s Aid Society of Toronto v.G.S. [2018] O.J. No. 1022). [31] In light of the conditions under which they were made, I consider the child’s statements regarding abuse by his father to beinherently and sufficiently trustworthy to be admissible as threshold reliability has been met.

Whether the statements of abuse bear thetraits of ultimate reliability will be addressed later. [91] In closing argument, counsel indicated explicitly that he was conceding threshold reliability and only arguing ultimatereliability. As a result, I will not give a specific ruling on threshold reliability for each portion of impugned

section 9 affidavit evidence.The reason is because threshold reliability is conceded, but also on the basis the assessment of ultimate reliability is made afterconsidering all of the evidence in order to make findings of fact and to determine if the burden of proof is met. [92] I will make some comments on the ultimate reliability of this evidence now that I have heard all the witnesses testify.

Section 9affidavits are tendered typically to provide some historical background to explain the events leading up to the guardianship application.There is no doubt that this evidence is relevant, but not necessarily determinative. This is how the Court of Appeal explained therelevance of such evidence in M.V. and C.H. v. Minister of Social Development, 2021 NBCA 42, at paras 49 and 50: [49] All the interventions taken by the Minister from the time he became involved with this family were relevant, because this evidenceformed the backdrop to the Minister’s ultimate decision to apply for a guardianship order.

As stated in J.S. and J.N., a guardianship ordershould not issue based on a “snapshot” of a child’s life. These applications are considered in context. In New Brunswick v.M.L. (1983), (NB KB), 56 N.B.R. (2d) 343, [1983] N.B.J. No. 420 (QL), Deschênes J. was alive to this principlewhen he wrote: [TRANSLATION] As regards the plan of action to be taken by the Minister, it is important that the court be able to enquire into the State’s plan for takingthe child into its care so that the court can compare the advantages of this plan of action with the advantage to the child of returning orstaying with his parents.

Without this evidence, it is practically impossible for the court to conclude that it is in the “best interests of thechild” to grant the order sought. [para. 28]

[50] Past parenting is relevant. In S.H. and M.D., Larlee J.A., for the Court, wrote: In truth, the trial judge made every effort to compare the history of the family with the current situation. In my opinion he needed tothoroughly examine the evidence of past parenting because it is relevant to both the finding of protection and in deciding upon a properdisposition if the children are found in need of protection […]. [para. 21] [93] In New Brunswick (Minister of Health and Community Services) v.

A.R. (NB CA), the Court of Appealstated: I am of the opinion that the appellants' argument on the relevance of the testimony in previous cases is without merit. This Court has inthe past held that this type of evidence is of relative importance although, as a general rule, it should not be determinative as such(see New Brunswick (Minister of Health and Community Services) v. M.R. and A.R. (supra).

In the case at bar, there is sufficientevidence of a relationship between previous testimony on the one hand and parenting skills and the best interests of the children at thecritical moment, i.e., the time of trial on the other. In light of this evidence, I adopt in essence, Boisvert, J.'s comments when he statedthat "[i]t is absolutely unreasonable to conclude that a court can determine the parenting skills of the [appellants] without considering thebackground of their family...". [para. 20] [Emphasis mine]. [94] The New Brunswick (Minister of Health and Community Services) v.

A.R. supra decision was referred to with approval inV.C. and J.C. v. Minister of Social Development, 2015 NBCA 28, at paragraph 22. [95] Keeping these principles in mind, I will comment on certain portions of the impugned

section 9 affidavit evidence. [96] The Respondent says that the sentence included in the Affidavit of Jeanne Connors in paragraph 3 (

d) at page 2 of the

section 9Record that “the children reported that there was a dead rat in their bedroom, and that it was not the first occurrence”, is not reliable. [97] Jeanne Connors is the vice-principal of the school that the children attend. The statement is made to a person of authority in theschool context. This statement is consistent with other statements by the children pertaining to the condition of the home, an issue thathas been raised by the Applicant in this matter. In addition, the statement was made in the context of an email sent by school staff to theRespondent’s social worker on October 29, 2019.

This suggests that school staff are aware that social workers are involved and feltobligated to report relevant facts to the Minister. [98] The statement relates to a dead rat in the home. I have no reason to question the purpose for which Jeanne Connors is relayingthis statement to the Court.

This evidence is offered for the purpose of providing historical information to the Court regarding the well-being of the children, which is consistent with the purpose of s. 9 of the FSA. [99] Lastly, it is S.P.’s right to cross-examine the affiant if she chooses to do so, and she and her counsel declined to make thatrequest. During her testimony, the Respondent was asked to comment on several statements in the

Section 9 Record, but not this one. Shetherefore had the opportunity to address its “trustworthiness”, but did not do so. In any event, I do not attach any significant weight to itbecause it appears to be a very isolated incident. This statement represents only one very small piece of the historical puzzle in thismatter, and is not determinative. [100] The next statements that are being challenged is part of the same affidavit of Jeanne Connors, at paragraphs (k), (

n) and (o): (k) …The children complained of being hungry, saying [C.P.] and [S.P.] ate their food when the school sent extra. [K.P.W.] was dirtyand had been wearing the same clothes for several days. (

n) On October 13, 2020, a report was made to Social Worker Elaine McLaughlin as the children reported [S.P.] takes their food. Theschool had given the family a gift card, and it was reported [C.P.] used it to buy beer, a few smaller items and milk. The children said[S.P.] and [C.P.] fought all the time and said they were scared. The children reported they spend most of their time at home in theirrooms while [C.P.] and [S.P.] fought;

(o) …[S.W.-L.]’s teacher met with Elaine McLaughlin for a few minutes and advised that [S.W.-L.] had also disclosed she was waking herself and her sisters up for school in the morning. [S.W.-L.] said she also put herself and her sisters to bed at night and said [S.P.] only puts the children to bed sometimes. [ 101 ] During oral argument counsel argued that these statements were not reliable because they are exaggeration, or even a gross or wild exaggeration.

In fact, S.P. testified that these statements are not accurate, that she has “no idea where they come from” and indicated that it’s always a “tit for tat thing with the neighbors”, because the father, C.P., would sleep with them, and that would cause “confrontation”. In essence, S.P. believes that the source of this information is the neighbors, and challenges the credibility of those statements. [ 102 ] These statements are submitted in the context of being part of the historic narrative consistent with the purpose of

section 9 of the Act . I repeat my comments above as they pertain to the school context in which these statements were made, as they are being related to the Court by the same affiant. [ 103 ] I will point out that some of this evidence, such as the notion that S.P. and C.P. “fought all the time” was corroborated by other witnesses, and in other affidavits. To that extent, I did not find S.P.’s challenge to this specific evidence to be very convincing. The evidence in question cannot be undermined by simply referring to what was perhaps happening between C.P. and the neighbors.

Some of the evidence was conveyed by one or more children directly to the teacher. [ 104 ] The other part of the impugned evidence is part of paragraph 22 (b)(ii) of the Affidavit of Rachel Cooney sworn to on October 26, 2020, at page 26. Ms. Cooney is a social worker employed by the Minister that was assigned to this file on October 15, 2020. Paragraph 22 (b)(ii) relates to her observations on October 22, 2020 and reads as follows:

b) I picked up [S.W.-L.], [K.P.W.], and [P.K.C.] from the foster home and brought them to school. Details are as follows: ii) The girls were mostly quiet on the drive. I asked the girls if they felt scared to go home to [C.P.] and [S.P.]’s; they said no. I asked the girls if they ever felt afraid of [S.P.]; they said no. I asked the girls if they ever felt afraid of [C.P.]; [K.P.W.] said yes. [K.P.W.] said [C.P.] was mad sometimes and yelled at [S.P.] and [S.P.] cried. [K..P.W.] said that on one occasion, [C.P.] threw a rock at [S.P.] and it hit her in the tummy with the baby inside.

I asked [K.P.W.] if that made her feel scared to go home; she said it did not make her feel scared. [ 105 ] My comments on this evidence are as follows. First, they are made to the affiant directly in the context of her employment as a social worker assigned to this file. Her task is, among other things, to determine if protective care is warranted. That is what she is trying to determine by speaking to the children. The specific children are identified as part of the statements. It is Ms.

Cooney’s duty as a registered social worker to document her observations and conversations that pertain to the best interests of the children. In addition, the statement from the children is consistent with other similar statements given to the same person, Ms. Cooney, on October 9, 2020, as evidenced in paragraph 14(

x) and (

y) at page 19 of the

section 9 Record. [ 106 ] I have considered S.P.’s testimony and she did not specifically challenge this evidence. In any event, the specific statements referred to by Ms. Cooney date back to over two years ago. I will not attach any significant weight to these specific statements. [ 107 ] In direct examination, S.P. also referred to other portions of the

Section 9 affidavit evidence that were not specifically challenged by counsel as being unreliable. I have considered all of S.P.’s evidence. Overall, S.P. challenged various parts of several Affidavits in the

Section 9 Record and, on other occasions qualified that evidence, or provided context. Here are a couple of examples:

• the statement of Jeanne Connors to the effect that the children said they spent most of their time at home in their rooms while C.P. and S.P. fought as being “not accurate” (Page 3, last sentence of para 3(

n) of Connors Affidavit); • the statement by Jeanne Connors that S.P. takes the children’s food. S.P. has “no idea where that comes from” and that she has “never eaten the children’s food” (Page 3, para 3 (

n) of the Connors Affidavit); • the statement of Jeanne Connors to the effect [S.W.-L.] was waking herself and her sisters up for school and that she puts herself and her sisters to bed at night. S.P. testified that this was “not accurate” and that [S.W.-L.], being 8 years old at that time, was her “little helper” (Page 3, para 3(

o) of the Connors Affidavit); • the statement of Jeanne Connors to the effect that the girls “were rarely dressed appropriately and were either missing socks or underwear or both”. S.P. testified that she “may not have checked the girls’ panties a couple of times but they were almost always properly dressed” (Page 4, para 3(p)(vii) of the Connors Affidavit); • the statement by the social worker, Rachel Cooney, to the effect that [K.P.W.] reported that C.P. got mad at S.P., that he jumped out of the car and “started throwing rocks at the car while they were all inside”.

S.P. testified that C.P. “pretended” to throw rocks at them but never did, and that the statement was only “partially true”. (Page 18, para 14(

t) of the Cooney Affidavit); • the statement from Gina Matheson, a teacher, to the effect that [P.K.C.] had been having frequent accidents and soiling herself, coming to school in soiled clothes, struggling academically with identifying and knowing each letter sound, requiring one-on-one support to complete work and arriving without a book bag or change of clothes.

S.P.’s evidence on these points is that she is “trying to correct that”. [P.K.C.] was 5-6 years old at the time and “stopped doing it”, referring to soiling herself. (Page 80, para 6 of the Matheson Affidavit) • the statement from Gina Matheson, teacher, that [P.K.C.] made various statements to the effect that “daddy slaps me”; “Daddy slaps the baby too”; “I'm scared of Daddy”; “I hate him”; “I'm going to live in the gingerbread house with Mommy, no Daddy”; “You better not tell daddy this because he'll hurt us again”; “He sneaks into our bedroom at night to slap us”; “He slaps us all night”; “[R.D.P.] wakes me at night to change his diaper but there is no wipes”; “Daddy smashed Mommy's phone when she called uncle [J.]”.

S.P.’s testimony is that most of these statements are not true, but that P.K.C. is scared of C.P. on occasion, that C.P. did slap them and that he did smash a number of her cell phones. (Page 80, para 7 of Matheson Affidavit) • the statement from Alyssa Wheaton, an Educational Assistant, that [K.P.W.] disclosed to her that during March Break they were locked in the house and weren't allowed to do anything, that mom and dad fought the whole time and that “dad punched my mom in the nose. It was really hard, mom cried” in addition to “there's no food at our house anymore.

Mom and dad just go to this building to get free food for us”. [K.P.W.] also informed Ms. Wheaton “that [C.P.] jumps out the back window when bad people come”. [C.P.] allegedly told [K.P.W.]. that “Indians were like ninjas”. [K.P.W.] responded to the notion that her father might get hurt jumping out of windows by saying that “no, ninjas are good at being sneaky.

Like ninjas we wait till it's dark out, so we can sneak in people's windows” [S.P.] denied that the children were ever locked in the house; she didn’t recall being punched in the face; that it was not true that they had no food at their house although they did go to the food bank on occasion and that she has never seen [C.P.] jump out of the window. (Page 85, para 4 of Matheson Affidavit) [ 108 ] It bears noting that S.P. testified that when her friend R.R. came “into the picture” to provide support between October 2020 and March 2021, things were much better.

However, the children were taken into care on March 12, 2021. When cross-examined about her testimony challenging the accuracy of the evidence of at least five different affiants, S.P. was reminded that the affidavit evidence that she disagreed with pre-dated R.R.’s involvement in her “support system”. The implication of this evidence was that S.P. did not make this important demarcation in time and that her recall was not as accurate as she wanted the Court to believe. I agree with this submission. S.P.’s parenting issues go well beyond simply getting help from R.R. up to a certain point in time.

In any event, despite the assistance provided by R.R., the Minister nonetheless took the children into protective care on March 12, 2021.

Issue 2 – Guardianship Application Legislative Framework [109] Subsection 56(1) of the Act, provides as follows: 56(1) The court may make a guardianship order transferring from a parent to the Minister on a permanent basis the guardianship of achild, including the custody, care and control of, and all parental rights and responsibilities with respect to, the child. [110] In accordance with subsection 53(2) of the Act, the Court “(…) shall at all times place above all other considerations the bestinterests of the child.” [111]

Section 1 of the Act defines the best interests of the child as follows: "best interests of the child" means the best interests of the child under the circumstances taking into consideration: (

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

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

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

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

e) the merits of any plan proposed by the Minister under which he would be caring for the child, in comparison with the merits of thechild returning to or remaining with his parents; (

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

g) the child's cultural and religious heritage. [112] The New Brunswick Court of Appeal reiterated in V.C & J.C. v. The Minister of Social Development, 2015 NBCA 28 atparagraph 15 that the best interests of the child is the sole factor to consider: “As this Court has said many times, the best interests of thechild (from a child-centered perspective) is the sole test used to determine child custody”. [113] It is clear from the decision of the Supreme Court of Canada in New Brunswick (Minister of Health and CommunityServices) vs.

M.L., (SCC) that the determination of the best interests of the children is to not to be considered from theparents’ perspective. That determination is made from the children’s perspective only. [114] In D.S. and A.C. v. The Minister of Social Development, 2021 NBCA 25 at paragraph 40, the Court of Appeal recently

explained the process to be followed in guardianship matters, which includes consideration of the history of the family with the Minister: In Young v. Young, (SCC), [1993] 4 S.C.R. 3, [1993] S.C.J. No. 112 (QL), the Supreme Court iterated that theassessment of a child’s best interests encompasses not only the physical and economic well-being, but also his or her emotional,psychological, intellectual and moral well-being. In New Brunswick (Minister of Health and Community Services) v. M.R. and A.R.(1998), (NB CA), 198 N.B.R. (2d) 201 (C.A.), [1998] N.B.J.

No. 142 (QL), at para. 20, the Court adopted the trialjudge’s comments that it was “absolutely unreasonable” to conclude that a court can determine the parenting skills of parents withoutconsidering the background of their family relationships (see J.S. and J.N. v. Minister of Social Development (now Minister of Familiesand Children), 2018 NBCA 26, [2018] N.B.J. No. 371 (QL), at para. 52). In Gordon v. Goertz, (SCC), [1996] 2 S.C.R.27, [1996] S.C.J. No. 52 (QL), the Supreme Court states that the best interests of the child test is contextual and not exact.

In childprotection hearings, a judge is required to undertake a review of the various interventions made by ministerial representatives as a matterof context and to include a review of Case Plans that were implemented, and the expert reports that were prepared. It is clear that a courtshould not delegate its duty to determine what parenting arrangement is in a child’s best interests by deferring to expert reports (seeP.R.H. v. M.E.L., 2009 NBCA 18, 343 N.B.R. (2d) 100).

He or she can consider them, but, in the end, must conduct his or her ownanalysis so as to inform the parents of the reasons for the decision. [115] The analysis with respect to the best interests of children in this case is therefore contextual. The context of this case includesconsiderations of various factors, including the Respondents’ parenting ability, inconsistency of visits, domestic violence and the overallsafety and well-being of the children. [116] I will now turn to apply each of the criteria related to the best interests of the children to the facts of this case. I will howeverconsider paragraphs (

a) and (

f) together, as the relevant evidence overlaps into both criteria. (

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

f) The need to provide a secure environment that would permit the child to become a useful and productive member of societythrough the achievement of his full potential according to his individual capacity; and [117] The Minister’s concerns were summarized by Ms. Scott in her Affidavit at paragraph 17: (Page 109-110 of the Record) 17. The concerns that have led to the Department’s involvement and eventual removal of the children have been longstanding.Attempts to work with both [S.P.] and [C.P.] through case planning have been challenging due to the chaotic nature of their relationshipand lifestyles.

Both [S.P.] and [C.P.] have a long history of unhealthy relationships resulting and (sic) physical and verbal abuse with eachother and previous/ current partners. The basic physical and emotional needs of the children have been neglected due to chronichomelessness, drug misuse, food insecurity, lack of medical and dental care, inconsistent nurturing, lack of routine and structure in thehome and intimate partner violence. Efforts to address these significant concerns through case planning and engagement of the parentshave stalled. Th

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