Manager, Child v. Youth Services, 2019 NLSC 107

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR FAMILY DIVISION Citation : Newfoundland and Labrador (Child and Youth Services) v. G.S., 2019 NLSC 107 Date : May 22, 2019 Docket : 201502F1043 In The Matter of the Children and Youth Care and Protection Act , S.N.L. 2010,

chapter C-12.2 , as amended. Between: Manager, Child and Youth Services , ZONE D Applicant And: G.S. and T.P. RespondentS Restriction on Publication: There is a Publication Ban on the names and any other identifying information of the children referred to herein, as well as the names of their biological parents, relatives and foster families pursuant to

section 52 of the Children and Youth Care and Protection Act . Before: Justice Jane M. Fitzpatrick Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: May 2, 2019

Summary: The Manager of Child and Youth Services applied for a continuous custody order of the child and subsequently applied for a

summary judgment pursuant to Rule F28 of the Rules of the Supreme Court, 1986 . Based upon a complete lack of response by the parents, as well as their significant history of child neglect, drug use, lack of insight, serious chronic hygiene issues, long-standing mental health issues

and low cognitive ability, the order for continuous custody is granted. Appearances: Cynthia D. Janes Appearing on behalf of the Applicant Sarah E. Evans Appearing on behalf of the First Respondent Mary L. Boulos Appearing on behalf of the Second Respondent Authorities Cited: CASES CONSIDERED: Hryniak v. Mauldin , 2014 SCC 7 ; Newfoundland and Labrador (Child and Youth Services) v. N.N. , 2017 NLTD (F) 26; Newfoundland and Labrador (Child and Youth Services) v. C.D. , 2017 NLTD(F) 36; Newfoundland and Labrador (Child and Youth Services) v.

A.G. , 2018 NLSC 111 ; RULES CONSIDERED: Children and Youth Care and Protection Act , S.N.L. 2010, c. C-12-2 ; Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Fitzpatrick, J. : INTRODUCTION [ 1 ] The mother, G.S., and the father, T.P., have two children together. M.P.S., age 3, is in continuous custody with the Manager of Child and Youth Services, and G.P.S., born on […], 2018, is the subject of this decision. G.P.S. was removed by way of a warrant signed on August 17, 2018.

Since that time, the child has been in the care of the Manager of Child and Youth Services (hereinafter referred to as “the Manager”) pursuant to a presentation hearing order under section 31(2) (

e) of the Children and Youth Care and Protection Act , S.N.L. 2010, c. C-12-2 (hereinafter “the Act ”). No other temporary orders have been issued regarding this child. [ 2 ] Since this initial removal in August 2018, the Manager has sought continuous custody for the child. The child has remained in the care of a foster family with his brother, M.P.S. This foster family has indicated their desire as a permanent placement for the children. [ 3 ] The parents both have older children not currently in their care.

The parents have a history of complex, long standing mental health issues, significant inabilities to parent on a daily basis, chronic hygiene issues, lack of insight, lack of engagement with social workers for the Manager, lack of familial and social supports, and lack of consistency with respect to access to the child. Several mental health professionals have recommended counselling to the mother, who suffers from complex trauma issues as a result of her own significant childhood abuse.

She has not yet committed to engage in such therapy. [ 4 ] The parents continue to be extremely inconsistent with access to the child. They are opposed to the Manager’s application and told the Court that they want their child returned home. [ 5 ] The Manager is now seeking a

summary judgment for the child, G.P.S., to be placed into continuous custody. issues [ 6 ] The issues before the Court are: A. Is there a genuine issue requiring a full hearing or is this an appropriate case for a

summary judgment pursuant to Rule F28 of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D .? B. If this is an appropriate case for a

summary judgment, what is the appropriate order under the Act ? Background [ 7 ] The historical information before the Court indicates a significant inability to parent by both parents due to long standing

issues. These are outlined in sworn affidavits of social worker Jessy Pinsent, as well as in the Plan for the Child and other documentation filed with the Court. [ 8 ] The mother was born in 1985 and is approximately 34 years old. It is known that the mother had an extensive history with Child and Youth Services as a child. She had been removed from her own parents’ home. She had been a child in care, and had ongoing hygiene and toileting issues at that time.

As a child/youth, the mother was also known to be physically aggressive and injure her own siblings, as well as staff at her alternative living arrangement (ALA) facility as a child in care. [ 9 ] In June 2010, a psychological assessment of the mother was completed. This assessment confirmed her to have unpredictable behaviours and that she could “snap unexpectedly”. Her behaviours included: picking fights, shoplifting, lying and theft.

She was determined to be of a low average cognitive ability. [ 10 ] Other behaviours exhibited by the mother, believed to have arisen out of her severe childhood trauma, include very poor hygiene, inappropriate defecation and toileting issues, even when there was access to a toilet. By 2011, this behavior was something that the social workers for the Manager really wanted to understand as it created great difficulties. Her inappropriate defecation was observed as cynical, related to feelings of stress, fear and rejection.

No medical condition (i.e. encopresis) could be found to be its cause. [ 11 ] By 2012, she was known to snort both cocaine and crushed Ritalin. [ 12 ] In April 2012, her psychiatrist, Dr. Weldon Bonnell, stated her difficulties could be understood as “complex consequences of early and prolonged trauma, neglect and abuse”, and she was described as having “severe” and “complex hygiene issues”. [ 13 ] In July 2013, she was diagnosed with post-traumatic stress disorder (PTSD) by psychiatrist Dr. Weldon Bonnell. This was after years of various professionals, including Dr.

Bonnell, noted a myriad of serious behavioral issues with the mother. Her issues had arisen from the significant abuse she endured as a child. In 2017, psychiatrist, Dr. Andrew Latus, assessed the mother. He was uncertain if she had a true PTSD diagnosis. He described her as a person with a trauma history with some features suggestive of PTSD. [ 14 ] In 2013, the Manager was informed that she was pregnant with her first child. She was then 18 years old.

She had no appropriate adults in her life to support her. [ 15 ] In July 2013, prior to the birth of her daughter, her psychiatrist expressed concerns about her ability to care for herself, much less an infant child. He advised that he prescribed her Prozac and melatonin for her trauma symptoms. [ 16 ] In […] 2013, her daughter was born. She used drugs and alcohol throughout her pregnancy. Paternity was never fully determined. The child was removed with a warrant at the hospital and placed into foster care.

The mother was granted supervised visits, but by January 2014, these were cancelled due to her non-attendance. When she did visit, the mother was often noted to be falling asleep, presenting with a foul odor or spending time on her phone rather than interacting with the child. The mother’s expectations of the child were not considered age appropriate. [ 17 ] By February 2014, the mother accumulated some criminal charges including assault and uttering threats. By February 27, 2014, the mother consented to a continuous custody order for her daughter.

After this, the mother was known to put false posts on social media about the child, such as in July 2015, she claimed that she fell down while playing with her daughter. In December 2015, the Manager discovered she had been untruthful to the Courts, claiming she had weekly access to her daughter and that her father would be adopting her. [ 18 ] Despite her doctor’s efforts to keep her engaged in counselling for her issues, the mother did not complete follow-up with other mental health professionals.

He lists her concerning behaviours as including: housing instability, poor peer influences, property damage, marijuana use, hoarding feces/urine and problems with personal hygiene that could put a child at risk. [ 19 ] In May 2015, the Manager became aware that the mother was pregnant with her second child. The father of this child was T.P., making this their first child together, but the second child for each parent. At that time, the mother was serving two concurrent probation orders and on the methadone treatment program for an opioid addiction. [ 20 ] In […] 2015, their son, M.P.S., was born.

He was removed by the Manger at birth and placed into a foster home. The parents were given a supervised access

schedule to their son after this removal. Despite this visitation schedule, both parents failed to maintain regular contact with their young son. Access attendance records for M.P.S. were part of the information presented for this hearing. [ 21 ] The parents had a full trial wherein they opposed the Manager’s application for continuous custody of M.P.S. [ 22 ] In June 2017, when the Manager was still before the Court dealing with their first child, Beverly McLean, M.Sc., completed a parenting capacity assessment (“PCA”) of the parents.

The findings were negative in terms of the ability of either party to be able to parent a child. [ 23 ] In particular, the PCA found that neither parent demonstrated adequate parenting skills and knowledge. The mother was indicated to oppose advice about the baby’s care and made numerous comments about how she will do things differently when the child is with her. A personality assessment demonstrated low motivation for change.

Having a child taken into care is normally very stressful, yet neither parent reported being under any stress. [ 24 ] In the part of the PCA where intelligence is measured, the father’s IQ score measured 49, which is on the extremely low range and higher than approximately < 0.1 out of 1000 people of the same age range. Also, the father’s verbal comprehension, perceptual reasoning and working memory were all assessed to be in the extremely low range.

Despite these identified concerns with the father’s intellectual abilities, the mother stated that she intended to rely on him for childcare in her absence. [ 25 ] The parents’ home was deemed unsanitary for a child. The mother is known to still have complex hygiene/toileting issues. In

particular, she often defecates in buckets or locations other than toilets, even when toilets are available. This has been a long-standing issue. [ 26 ] After a full hearing, LeBlanc J. ordered continuous custody of this child on June 29, 2017. In his oral decision, LeBlanc, J. was sympathetic to the parents. Despite his findings, he gave the mother the opportunity to prove herself. He held out the hope that she could rehabilitate herself and the parent and child relationship. He offered her guidance and the opportunity to maintain contact with her son, despite his finding that continuous custody was appropriate.

He noted that she had overcome her drug addiction, but there was still a lot of work to be done. [ 27 ] In October 2017, the Manager became aware that the mother was again pregnant. The child, G.P.S., was born on […], 2018. He is the second child of the mother and the father. He was moved to the neonatal care unit (NICU) until he was one day old due to a fever and severe withdrawals. The mother was adamant that the only drug she used during pregnancy was methadone. The baby had to be given morphine and clonidine to assist with his withdrawal symptoms. [ 28 ] Serious hygiene issues continued to plaque the mother.

After the birth of the baby, it was reported by the NICU social worker that the mother had smeared feces on the case room walls during her stay at the Health Sciences Centre. The nurses also complained, during her stay, that it was difficult to work with the mother due to the smell of body odor and smoke. The mother is a known smoker. Her own clothing was moldy. Clothing she had brought to the hospital for the baby was observed to be damp and had mold on it. The mother was seen giving G.P.S. a moldy pacifier stained a dark brown color.

This had belonged to her older child, M.P.S., when he was an infant. [ 29 ] The father declined supervised access visits with the child at the NICU in August 2018 because the child was receiving morphine. The father said he was allergic to opiates. He feared he would have an allergic reaction if the baby spit up on him. He was encouraged to visit and to check with nurses about the risk of such a reaction, but he declined. He began attending access when the child was out of hospital and access was moved to Cordage Place, Child and Youth Services office.

These supervised access visits began shortly after the child’s birth. [ 30 ] From that point, until now, the baby has remained in the Manager’s care and supervised access has been available to the parents. Social workers for the Manager have kept attendance records of whether the parents availed of their access with the baby. [ 31 ] The parents have missed significant access available to them. From August 2018 to December 2018 the parents missed access as follows: a. In August 2018, nine supervised visits were available. The father attended one and the mother attended all nine. b.

In September 2018, nine supervised visits were available. The father attended three and the mother attended six. c. In October 2018, 13 supervised visits were available. The father attended two and the mother attended six. d. In November 2018, the mother attended four out of 11 available visits. The father did not have access due to his previous attendance record, and refusal to meet with social workers for the Manager to create an access plan. e. In December 2018, access was changed from three times a week to once a week due to lack of attendance by both parents. f.

In December 2018, the mother attended three out of five visits and the father attended two out of five visits. [ 32 ] There was a meeting on October 31, 2018 about lack of attendance by the parents at their supervised visits with the baby. The father stated the reason he missed two out of three visits was because they were in the morning. He said he likes time to relax in the morning and have time to drink his coffee. The mother also referenced needing to drink her “Ensure” drinks in the morning time.

The parents were challenged on these statements and reminded that, if the child was in their care, his care would be 24 hours. At this point, the father got up and yelled he was not listening to this anymore and left the building. He displayed similar aggressive behaviours to social workers on a few occasions. [ 33 ] Access since January 2019 has continued to be sporadic. The parents did well in January 2019 with the mother attending four out of four visits and the father attending three out of four visits.

In February 2019, at her request, the mother was granted increased access so access visits went from one to three times per week. The mother only attended five out of a possible 10 visits and the father four out of 10 visits. [ 34 ] On March 4, 2019, the father’s access was suspended. He has not contacted the Manager to work toward re-gaining his access. In March 2019, the mother attended six out of a possible 13 visits.

In April 2019, the mother attended one out of three scheduled visits. [ 35 ] The baby has had many medical appointments since birth due to conditions such as maternal abstinence syndrome, pyloric stenosis and general illness related to catching viruses. The mother has rarely attended these appointments despite, initially, being very adamant on attending all medical appointments. [ 36 ] At the time of this hearing, the mother and father had been in a relationship for about four years and the mother was about 30 weeks pregnant with her fourth child.

The mother’s first-born daughter had already been placed into the continuous care of the Manager when she began dating the father. Like the mother, the father has an older child, a son, not in his care. This son was born in October 2010 and is currently cared for by his mother. He has little contact with his son. The parties’ first child together, M.P.S., is in the continuous custody of the Manager. [ 37 ] The Manager argues that nothing has changed with the parents to now enable them to parent a vulnerable baby. They have not stepped up as parents and consistently attended access with their baby.

This lack of commitment to access was a pattern seen before with

their eldest child. The mother has never addressed her own history of neglect and trauma to now be in a position to parent. She still exhibits all the same behaviours from her trauma, which means she cannot parent. The father’s intellectual levels and lack of interest, without supports, make him unable to parent. THe law [ 38 ] This application was filed by the Manager pursuant to Rule F28.06 of the Supreme Court Family Rules . This rule states as follows: F28.06

(1) Upon hearing an application under this rule, the judge must grant

summary judgment if, (

a) the judge is satisfied that there is no genuine issue requiring a trial; or (

b) the parties agree to have all or some of the issues determined by a

summary judgment and the judge is satisfied that it is appropriate to grant

summary judgment.

(2) In determining whether there is a genuine issue requiring a trial, the judge must consider the evidence submitted by the parties, and the judge may do one or more of the following for that purpose, unless it is in the interest of justice for such powers to be exercised only at a trial: (

a) weigh the evidence; (

b) evaluate the credibility of a deponent; (

c) draw any reasonable inference from the evidence.

(3) A judge may, for the purpose of determining whether there is an issue requiring trial or deciding an issue under this rule, order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

(4) Where the judge decides that there is a genuine issue with respect to an issue or claim, a judge may nevertheless grant judgment in favour of any party, either upon an issue or generally, unless (

a) the judge is unable on the whole of the evidence before the Court on the application to find the facts necessary to decide the questions of fact or law; or (

b) it would be inappropriate to decide the issues at the hearing.

(5) Where a judge does not grant all of the relief requested, a judge may determine any material fact that is not genuinely in dispute. [ 39 ] In this case, the application by the Manager is for

summary judgment of its application for a continuous custody order for the child pursuant to s. 32(1) and (2) of the Act , which states: 32.

(1) At a protective intervention hearing, a judge shall determine whether a child is in need of protective intervention.

(2) Where a judge finds that a child is in need of protective intervention, the judge shall so declare and order that (

a) the child be returned to or remain with the parent and under a manager's supervision for a specified period of up to 6 months; (

b) the child be placed in the temporary custody of the child's family or a person significant to the child, other than the parent from whom the child was removed, with the consent of that person and under a manager's supervision, for a specified period in accordance with

section 33; (

c) the child be placed in the temporary custody of a manager for a specified period in accordance with

section 33 ; or

(

d) the child be placed in the continuous custody of a manager. [ 40 ] Also, this application by the Manager is pursuant to sections 10(1) (a), (

c) and (

l) of the Act , that this child is a child in need of protective intervention as follows: 10.

(1) A child is in need of protective intervention where the child (

a) is being, or is at risk of being, physically harmed by the action or lack of appropriate action by the childs parent; (

c) is being, or is at risk of being, emotionally harmed by the parent's conduct and there are reasonable grounds to believe that the emotional harm suffered by the child, or that may be suffered by the child, results from the actions, failure to act or pattern of neglect on the part of the child's parent; (

l) is living in a situation where there is violence or is living in a situation where there is a risk of violence; [ 41 ] The Manager also relies on the principles enunciated in sections 8 and 9 of the Act . These sections serve as guiding principles in the Court’s overall consideration of this case. In particular, these sections emphasize that the overriding and paramount consideration is the best interests of the child. These sections state as follows: 8. The purpose of this Act is to promote the safety and well-being of children and youth who are in need of protective intervention. General principle 9.

(1) This Act shall be interpreted and administered in accordance with the principle that the overriding and paramount consideration in a decision made under this Act shall be the best interests of the child or youth.

(2) In determining a child or youth's best interests, all relevant factors shall be considered, including (

a) the child or youth's safety, health and well-being; (

b) the child or youth's physical, emotional and developmental needs; (

c) the child or youth's relationship with family or a person significant to the child or youth; (

d) the child or youth's identity and cultural and community connections; (

e) the child or youth's opinion regarding his or her care and custody or the provision of services; and (

f) the importance of stability and permanency in the context of the child or youth's care. [ 42 ] The first issue that the court must decide is whether or not this is an appropriate case for a

summary judgment or is it appropriate for a full trial. The case Hryniak v. Mauldin , 2014 SCC 7 , sets out the test for making the decision as to whether there is a genuine issue requiring a trial. Hryniak was an Ontario case dealing with Ontario Rule 20.04, which is strikingly similar to Rule F28.06 in Newfoundland and Labrador. This makes this case of significant importance in the

interpretation of our rule for

summary judgments. [ 43 ] At paragraphs 49-51 of Hryniak , Karakatsanis, J. states as follows: 49 There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

50 These principles are interconnected and all speak to whether

summary judgment will provide a fair and just adjudication. When a

summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute.

It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute. 51 Often, concerns about credibility or clarification of the evidence can be addressed by calling oral evidence on the motion itself.

However, there may be cases where, given the nature of the issues and the evidence required, the judge cannot make the necessary findings of fact, or apply the legal principles to reach a just and fair determination. [ 44 ] All the principles of the Hryniak decision were adopted by our court in the decision of Newfoundland and Labrador (Child and Youth Services) v. N.N. , 2017 NLTD (F) 26, at paragraph 19 by LeBlanc, J., wherein he states: 19 As a result, in applying Rule F28 regarding availability of a

summary judgment based upon the reasoning in Hryniak , I would set out the following roadmap for analysis of such applications in the family law context: 1) Any application for

summary judgment pursuant to Rule F28 must be considered bearing in mind the need for proportionality as regards the matter in ensuring a fair, timely, affordable and just determination of the claims of the parties. 2) Rule F28 utilizes a test of determining whether there is a genuine issue requiring a trial and this ultimately means that a trial of the matter is not to be presumed to be the most appropriate process to fairly determine a claim or claims.

A trial is not to be seen as the default procedure, particularly based upon the various new dispute resolution processes as set out in our present rules. 3) Where on an application pursuant to Rule F28 a judge is able to find the necessary facts in the matter, apply the law to those facts and resolve the matter in a just and fair manner, a full trial would not be seen to be proportionate, timely or cost effective. If the application does not permit a judge to find the necessary facts, apply the law to the facts and resolve the matter fairly, the

summary judgment process would not meet the requirements of proportionality set out in the Hyrniak case. 4) The evidence available on an application pursuant to Rule F28 need not be equivalent to that of a trial but must be such that the judge feels he/she can be confident that the matter in dispute can be fairly resolved without a trial. 5) A record based upon the affidavits of the parties, particularly when supplemented by the new fact-finding tools contained in Rule F28.06(2), including the hearing of oral evidence if shown or found to be necessary under Rule F28.06(3), will often be sufficient in determining issues in dispute in a fair and just manner.

The enhanced fact-finding powers as well as the hearing of oral evidence can provide an equally appropriate and valid manner of fact-finding. 6) Utilizing the enhanced fact-finding powers and considering the interest of justice, what is fair and just will turn on the nature of the issues in dispute, the nature and strength of the evidence and what is the proportional procedure. [ 45 ] This test is applied again in Newfoundland and Labrador (Child and Youth Services) v. C.D. , 2017 NLTD(F) 36 and in Newfoundland and Labrador (Child and Youth Services) v. A.G. , 2018 NLSC 111 .

Both decisions note that, upon hearing a

summary judgment application, a judge may give different relief than that sought, such as a temporary custody order as opposed to a continuous custody order. [ 46 ] These decisions emphasize that the onus is on the parents to provide evidence which tends to show that their circumstances have changed since the child’s removal. They need to show proof that they can now, appropriately, parent a child. In other words, a simple expression by the parents of their desire to parent will not be considered sufficient to overcome the test for a

summary judgment. [ 47 ] In the Newfoundland and Labrador (Child and Youth Services) v. C.D. decision, at paragraph 64, LeBlanc J., emphasizes that the history of parenting is extremely relevant in these types of applications. History of facts often form the basis for many determinations in child protection cases: 64 In making a decision in this case as to the type of order to be made, again, obviously the past history of parenting is of relevance here. I recognize that this is not the only matter of importance but it must be significantly considered.

I say this notwithstanding my agreement with the comments of Goulding, J. in Newfoundland & Labrador (Director of Child, Youth & Family Services) v. T. (A.) , 2006 NLUFC 28 ( N.L. U.F.C.) , that it is the circumstances at the time of the hearing as opposed to historical facts that generally form the basis upon which a determination should be made in a child protection case. Up to now, these parents have, at the least, shown some inability to safely attend to the needs of their young child, including matters regarding appropriate care and safety as well as their ability to

exercise appropriate judgment regarding the need for medical treatment. As a result, that child suffered serious injuries that were made even more threatening to the child by the failure of the parents to obtain immediate medical attention. They have never been engaged in the parenting of their second child and the same applies as regards the third child who is involved in this case . [ 48 ] The first issue I must decide is whether or not this is an appropriate case in which to grant a

summary judgment. [ 49 ] The Manager has filed detailed information to support their application including two sworn Affidavits of social worker, Jessy Pinsent. The first is dated January 28, 2019 and the second is dated April 17, 2019. [ 50 ] Neither parent has filed an affidavit to put forward their case, despite ample time to do so. The actual hearing of this

summary judgment was postponed from February 19, 2019 to May 3, 2019. Despite this additional time and efforts by their lawyers to meet with them, neither parent has managed to meet with their lawyer to file an affidavit to put before the Court. [ 51 ] What this means is that neither parent has any sworn evidence before the Court to support their position to return the child to their care. This is very problematic under the

summary judgment analysis regime. analysis and decision [ 52 ] I find that this is an appropriate case to grant a

summary judgment. I say this for several reasons. [ 53 ] The Supreme Court of Canada in Hryniak states that there must be a genuine issue requiring a trial. The only affidavit evidence I have is from the Manager. I have already reviewed much of the content of these documents. This sworn evidence supports a clear case for the Manager’s request for a

summary judgment. Neither parent has filed a sworn affidavit. This is the situation despite a delay of this hearing for several months. [ 54 ] Lawyers for the parents have both stated their efforts to get their clients in to file much needed affidavits for this crucial hearing. Despite their best efforts, the lawyers for the parents were unsuccessful. [ 55 ] The only argument put forth by the parents are unsworn statements, by their lawyers, during submissions of their desire to parent and to be given the opportunity to have a full trial. [ 56 ] Even facing

summary judgment proceedings, and a several month delay to meet with lawyers, neither parent could manage to provide the Court with sworn affidavits. The parents have not presented the Court with any reasonable plan of their ability to parent. They have provided nothing by way of evidence. [ 57 ] Rule F28.04(4) states as follows: Rule Evidence on a

summary judgment hearing F28.04

(1) On a hearing under this rule, a party may adduce evidence by one or more of the following: (

a) an affidavit prepared in accordance with rule F32 ("Evidence and Affidavits"); (

b) an answer, or part of an answer, to written questions previously provided under rule F11.03("When you can ask questions in writing"); and (

c) any part of the evidence taken during an appointment for questioning under rule F11.04 ("When you can ask questions in person before trial").

(2) A deponent may be cross-examined and re-examined at the hearing of the application, provided permission was granted by the case management judge and at least three days notice is given to the party submitting the affidavit to produce the deponent for cross- examination.

(3) An affidavit for use on the application may be made on personal knowledge but on the hearing of the application, an adverse inference may be drawn, if appropriate, from the failure of a party to provide the evidence of persons having personal knowledge of contested facts.

(4) A judge may draw an adverse inference from the failure of a party to cross-examine on, or file affidavit evidence in reply to, an affidavit used on an application made under this rule. [ 58 ] Based on the operation of Rule F28.04(4), I draw an adverse inference from the absence of an affidavit from the Respondents. This is consistent with their long-standing issues and general lack of real interest in parenting a child. The parents have not expressed anything more than a mere desire to parent a child.

They have not shown any plan, any efforts to deal with their issues or brought forward any evidence of attempts to improve their situation. [ 59 ] Based on the evidence before me, from the Manager, I can conclude that there is no genuine issue requiring a trial. The parents both still present with the same myriad of issues which prevented them from parenting their first child. These issues include

mental health issues, lack of parenting skill issues, hygiene issues, lack of commitment to access and lack of understanding about the needs of the child. The mother has never committed to counselling for her own childhood neglect and trauma, which has led to complex toileting issues and an unsafe home that would put a child as risk. The father has significant cognitive issues that will likely never be able to be improved. [ 60 ] As stated by LeBlanc. J., in Newfoundland and Labrador (Child and Youth Services) v.

C.D. , the parents must provide evidence which tends to show a change in their circumstances since the child’s removal, so that they could now parent a child. A mere expression of a desire to parent is not sufficient. The parents here have only presented a statement of their desire to parent with nothing else. Therefore, there is no genuine issue requiring a trial. [ 61 ] Based on the affidavit evidence before me, I can make necessary findings of fact. I can apply the law to the facts. A

summary judgment, in this particular case, is a more expeditious and less expensive means to achieve a just result. [ 62 ] Pursuant to Rule F28.06(2), a trial will only be deemed necessary where I feel it is in the best interests of justice to weigh the evidence, evaluate credibility or to draw any reasonable inference from the evidence. The only case presented to me is from the Manager. It is a strong case. The first child of the parties, after a hearing before LeBlanc, J., was placed into continuous custody. Evidence presented by the Manager suggests little has changed with the parents since that time.

In the absence of any other evidence, I find that a trial is not necessary. appropriate order [ 63 ] The next step is to decide the appropriate order. I find that an Order of continuous custody is appropriate in this case. I say this for several reasons. [ 64 ] First, based upon the evidence before me, I find that G.P.S. is a child in need of protective intervention pursuant to section 10(1) (a)(

c) and (

i) of the Act . G.P.S. is a vulnerable young infant. The long-standing and well-documented issues outlined with the parents make it clear that they are not in a position to care for a baby. The lack of any parenting abilities, posed by their lifestyle, would put G.P.S. at significant risk of harm. [ 65 ] After a full trial before LeBlanc, J. in June 2017, the parent’s first child was placed into continuous custody. In his oral decision, LeBlanc J. noted the complex and long-standing issues with both parents making it impossible for them to parent.

The evidence indicated that there was no progress, by either party, to address these concerns. In particular, the issues with the mother would require her to dedicate to therapy. LeBlanc, J., left the door open for the mother to engage in desperately needed trauma counselling. This was the cornerstone to her overcoming her parenting issues. While opportunities to do so existed, she did not commit to any counselling or treatment plan since that time. This was despite LeBlanc, J. suggesting to her, after the continuous custody order, that this was the needed step to re-gain access to her oldest son.

M.P.S. [ 66 ] The same pattern of lack of dedication to access with G.P.S., by both parents, was seen when M.P.S. was removed. The parents do not seem to get the significance of dedicating themselves to access to their newborn child to ensure a bond. They do not seem to take direction on any parenting issues. All of the same issues that made it impossible for them to parent M.P.S. exist now. They have done nothing to improve their situation on any level. Despite the parties being a sympathetic couple, the test for me is the best interests of the child.

There is no foreseeable future for this baby to ever be in their care. [ 67 ] As a result, G.P.S. is an infant who needs permanency planning. This is not an appropriate case for a temporary order. There is little hope that the parents here will improve their parenting skills. These parents have long-standing issues wherein they cannot safely parent a child. They have numerous opportunities to address issues and have failed to do so.

Continuous custody is the only option and is in the child’s best interest. [ 68 ] The Manager has indicated that the foster parents of both children is interested in adoption of this full sibling pair. This is hopefully something that will take place to enable a future together for the children. [ 69 ] I therefore place G.P.S. into the continuous custody of the Manager pursuant to section 32(2) (

d) of the Act . _____________________________ Justice Jane M. Fitzpatrick