Manager, Child v. Youth Services, 2019 NLSC 127

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR FAMILY DIVISION Citation : Newfoundland and Labrador (Child and Youth Services) v. A W, 2019 NLSC 127 Date : June 27, 2019 Docket : 201702F0257 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: AW and JM RespondentS Restriction on Publication: There is a Publication Ban on the names and any other identifying information of the children, 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 Alexander MacDonald Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: March 29, 2019 Appearances: Krista M. Atkins Appearing on behalf of the Applicant Philip G. Warren Appearing on behalf of the Respondents

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 (Manager of Child, Youth and Family Services) v. J.(B.) , 2013 NLTD(F) 20; Newfoundland & Labrador (Director of Child, Youth & Family Services) v. R. (G.) , 2009 NLUFC 22 STATUTES 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 , Family Law Rules REASONS FOR JUDGMENT MACDONALD, J. : INTRODUCTION [ 1 ] B is almost four.

She does not live with her parents. She has lived more than half of her young life under the care of the Manager of Child and Youth Services. [ 2 ] B was born on […], 2015 to her mother, AW and her father, JM. On April 5, 2017, the Manager removed her from her parents. She lived with her foster mother since then pursuant to a six month and then a subsequent three month, temporary custody order. [ 3 ] The Manager now seeks continuous custody of B. The Manager’s plan is to place her for adoption. Her current foster mother may apply to do so. [ 4 ] I heard this matter by way of

summary judgment under Rule F28. B’s father had no role in these proceedings and did not participate in the hearing. [ 5 ] B’s mother asked that I return her daughter to her care. If I will not do that, she asks that I leave her daughter in the custody of the Manager under an extraordinary third three-month temporary custody order. [ 6 ] I must determine if I can decide the issues based on the evidence before me without a trial. The issues are: (

a) is B in need of protective intervention, and if so, (

b) what is the appropriate order? [ 7 ] I find that there is no genuine issue requiring a trial and I can make my decision based on the evidence before me. [ 8 ] I find that B is in need of protection intervention because the actions or lack of actions by her parents put her at risk of physical and emotional harm. I place B in the continuous custody of the Manager. [ 9 ] I will now explain why I made these decisions. DISCUSSION Is B in Need of Protective Intervention? [ 10 ] I find that B is in need of protective intervention. I can come to this conclusion without the need of a full hearing.

I will now discuss why this is so. [9] My overriding and paramount consideration is B’s best interest. I must consider B’s physical, emotional and psychological health. I must consider her well-being. I must consider her connections with family and others in the community. I must consider her cultural connections. I must remember the importance for B to have stability and permanency in her life. [10] So how do I apply these considerations in this case? [ 11 ] The Supreme Court of Canada addressed

summary judgment applications in the decision of Hryniak v. Mauldin , 2014 SCC 7 . The court concluded that I must interpret

summary judgment rules broadly. I must remember the importance of proportionality. I must allow people fair access to affordable, timely and just adjudication of claims. [ 12 ] The court observed that the best forum for resolving a dispute is not always that with the most painstaking procedure.

Summary judgment applications provide an opportunity to simplify pre-trial procedures and move the emphasis away from the conventional trial in favour of procedures tailored to the needs of the particular case.

[ 13 ] I must decide if B is in need of protective intervention. If so, I must decide the appropriate order. I must decide both without the need of a trial. Even if there appears to be a genuine issue requiring a trial, I must decide if I can avoid one by drawing on the provisions in Rule F28.06(2). [ 14 ] Rule F28.06(2) allows me, without a trial, to weigh evidence, evaluate credibility, draw inferences and hear oral evidence. The Supreme Court of Canada in Hyrniak found that my use of these provisions is not exceptional. [ 15 ] If, at the

summary judgment hearing, I am able to find the necessary facts, apply the law to those facts, and resolve the issues in a just and fair manner, there will be no genuine issue requiring a trial. It is more timely, affordable and proportionate to adjudicate the matter by way of a

summary judgment application. [ 16 ] Evidence on a

summary judgment application need not be equivalent to that at trial. I must, however, be satisfied that I can resolve the dispute fairly. I may rely on the documentary record but I can order oral testimony. [ 17 ] In child protection proceedings, I may admit and rely upon any evidence that is relevant and reliable in the circumstances, including hearsay evidence. I must ensure fairness and justice to the parties (See: Newfoundland and Labrador (Child and Youth Services) v.

N.N. , 2017 NLTD(F) 26, at paragraph 10). [ 18 ] I will now explain how I applied the Supreme Court of Canada’s direction in this case. [ 19 ] I considered the affidavits of AW, filed March 26, 2019, and the Manager’s social worker, Ms. Benoit, filed December 17, 2018 and January 14, 2019. I allowed cross-examination of both witnesses. [ 20 ] Ms. Benoit’s affidavits outlined the Manager’s history with B and her mother. In 2002, the Manager became involved with AW and her oldest daughter.

Her oldest daughter is now 17 years old and is in the continuous custody of the Manager. [ 21 ] AW, like many Newfoundlanders and Labradorians, struggles with addictions. In February 2016, AW tested positive for cocaine. AW admitted she used the drug but said a girlfriend “coerced her to do some to stay longer” at a social event. [ 22 ] The Manager received verifiable information that she was selling her prescription medication. She admitted she misused her Clonazepam and allowed JM to sell her Zopiclone.

However, she said that B did not witness the sales because JM made the sale “far from home”. [ 23 ] The Manager said AW was unwilling or unable to produce her prescribed medications for inspection. [ 24 ] She told the Manager she took her medication early or that she left her medications in other people’s vehicles. The Manager said she only produced medications immediately after her pharmacy filled the prescriptions. [ 25 ] AW said that this did not occur often and she offered excuses for her inability to show her drugs for inspection.

She said this despite the fact she admitted JM was selling her medications. [ 26 ] The Manager believes she is continuing to misuse and sell her medications. [ 27 ] She tested positive for Ritalin, Temazepam, Oxazepam and Hydromorphone three times in March, May and June 2017. [ 28 ] Furthermore, AW also has a history of: (

a) inappropriately disciplining her children; (

b) being physically aggressive when addressing typical age-related behaviours by a child; (

c) being unable to maintain a clean home suitable for her daughters; (

d) being unable to provide appropriate attention to her daughters’ medical needs and has inconsistently attended their medical appointments. She did not ensure that B received treatment for asthma, eye and dental issues; (

e) prioritizing her romantic relationships over her daughters’ needs. This has resulted in her being involved with individuals, including JM, who exposed the children to domestic violence; (

f) failing to administer B’s medications properly; (

g) being unable to cope with stress; (

h) failing to address her own significant physical and mental health concerns; and (

i) discussing her romantic relationship issues in front of her daughter. [ 29 ] AW has a difficult relationship with her oldest daughter. The Manager has documented AW’s involvement with violence and inappropriate behaviour in her daughter’s presence. She admitted that her daughter was in the house when this behaviour occurred but that she “was asleep”. [ 30 ] All of these actions are detrimental to B. On June 12, 2017, the Manager sought and obtained a six month temporary custody order. B’s parents seemingly recognized these concerns when they consented to the order. The Manager was committed to B’s reunification with her parents. The conditions of the order were:

(

a) the parents were to maintain regular contact with the Manager. They were to consent to the Manager sharing information with service providers. They agreed to scheduled or unannounced home visits; (

b) any parent access visits would be supervised; (

c) B’s mother was to continue to participate in the methadone program and other addiction services recommended by the Manager; (

d) B’s parents were to participate in parenting programs or other groups recommended by the Manager; and (

e) B’s parents were to maintain their home environment clean and free from hazards. [ 31 ] When the Manager took B into care, she required surgery to fix tooth decay. The Manager is concerned AW is unable to look after B’s physical health. AW said that she did not take her to the dentist because she “was told that a child should not go to a dentist until the age of two”. [ 32 ] Despite the temporary custody application and order, between March 2017 and November 2017, AW tested positive for Ritalin and Benzodiazapams, including Temazepam, Oxazepam, Lorazepam, and Hydromorphone.

She missed seven scheduled methadone treatments. [ 33 ] On September 14, 2017, her oldest daughter reported finding drugs and a syringe in AW’s home. AW blames a friend for bringing them into the house. [ 34 ] The Manager organized drug screens on August 9, 2017 and March 6, 2018. AW did not participate. She provided excuses to the Manager such as, she did not have an MCP card, the screening site was too crowded or her methadone doctor refused to authorize the tests. Furthermore, she missed one access visit with her daughter because she feared that the Manager would ask for another drug test.

In her affidavit, AW admitted she missed methadone treatments. She blames her illness described in paragraph [42](

a) and the inaction of her methadone doctor. [ 35 ] Unfortunately, these incidents caused the Manager to conclude that the parents made insufficient progress during the six-month first order. The Manager then applied and ultimately obtained an additional three-month temporary custody order on March 8, 2018. Again, B’s parents recognized that they were not yet ready to parent their daughter and consented to the order. The Manager was still committed to B’s reunification with her parents. [ 36 ] The conditions in the second order were: (

a) the parents were to participate in programs and services recommended by the Manager; (

b) AW was to complete follow-up appointments with the family doctor in relation to her mental health and to provide any direction followed; (

c) AW was to complete individual counselling; (

d) the parents were to continue to participate with the Daybreak Family Home Visitation Program, if Daybreak was willing to work with them; (

e) the parents were to maintain regular contact with the Manager. They were to consent to the Manager sharing information with service providers. They agreed to scheduled or unannounced home visits; (

f) the parents’ access with B was to be facilitated by the Manager; and (

g) AW was to continue participating in the methadone program and other addiction services. [ 37 ] Since March 8, 2018, she missed another 45 scheduled methadone treatments, the last one before trial being on October 20, 2018. [ 38 ] The Manager organized drug screens on March 22, 28 and 29, 2018. AW did not participate. On April 27, 2018, she tested positive for Ritalin, Temazepam and Oxazepam. Her oldest daughter told the Manager in April 2018 that she saw her mother using intravenous drugs. On June 4, 2018, she tested positive for Ritalin and Oxazepam.

This is the last drug test she gave the Manager before the hearing. [ 39 ] Since March 8, 2018 the Manager documented more than 175 additional occasions when: (

a) B’s parents were not prepared for the start of access visits; (

b) B’s parents left access for various reasons; (

c) B’s parents did not provide adequate supervision of their daughter during access; (

d) B’s parents took naps and said they were feeling sick during access; (

e) B’s parents ended access early; (

f) the Manager ended access because of non-productive interactions or safety concerns;

(

g) B’s parents failed to attend access without prior notice; (

h) B’s mother engaged in inappropriate conversation with staff in front of her B about sexual matters, ghosts, demons, pedophiles and murderers; (

i) B was exposed to physical and verbal arguments between her parents; (

j) B was exposed to physical and verbal arguments between her mother and her older sister; (

k) B’s mother had conversations with B about sex, the Manager’s involvement with the family, the supervised access workers, AW’s relationships and criticisms of B’s father and her stepsister; (

l) B’s parents exhibited a lack of understanding regarding child development in relation to discipline, positive interactions, appropriate child focused play and the need to show affection; (

m) B’s parents provided their daughter with significant amounts of junk food which, in the past, resulted in dental issues; (

n) AW discussed the possibility with her daughter that she, her mother, is dying; or (

o) B’s parents told B they are sick. [ 40 ] The Manager concluded that B’s parents were not making sufficient progress to allow family reunification. On June 7, 2018, she took this application for continuous custody. [ 41 ] This Court decided that B was in need of protection when it issued both temporary orders. Indeed both parents recognized this fact and consented to the orders. The question is what has changed since the date of the second order on March 8, 2018? [ 42 ] I conclude very little has changed. In particular: (

a) AW ignored a January 2018 gall bladder diagnosis for months. Her gallbladder condition then spread to her liver. She needed emergency hospitalization. AW admitted this and said “I should have went further with medical treatment. However, at that time I was extremely depressed and did put things off that should have been addressed”. She said, without any evidence, “But I would never put off any medical issues with my children”; (

b) in May 27, 2018, AW was overheard during an access visit stating that she could not wait for the visit to end so she could “rip a line” which the Manager says is a known reference to snorting drugs. AW denied she said this; (

c) the Manager received copies of text messages they believed to be from AW evidencing her intention to sell drugs. AW admitted that there were messages “apparently from her”. Significantly, she did not deny that she was a party to the messages. Instead, she observed that the prospective purchaser did not ask who she was until the end of five pages of messages. She said “In my knowledge no one selling drugs would deal with an individual that long without knowing who they were talking to”; (

d) in September 2018, the Manager received information, including a recording of a conversation in which AW purportedly admitted using intravenous drugs prior to supervised visits. Significantly, AW did not deny the underlying allegation but said “I have never been told about a recording of me stating I did any drugs before a visit, even if I was an IV user or drug user of any kind I would never attend a visit with my toddler on drugs”; (

e) in September 2018, AW’s family reported her as missing to the RNC. She was at JM’s residence, despite the fact she told the Manager she was no longer with him. AW admitted that their relationship is unhealthy. AW admitted that JM sells drugs and that they have a past history of domestic violence; (

f) AW admitted to self-medicating for an alleged diagnosis of ADHD using cannabis. She has no medical prescription for the cannabis nor a structured dosage. The Manager believes she is abusing cannabis; (

g) she did not start any of the Manager recommended services, including the Waypoints Family Support Program at Daybreak, individual counselling, addictions counselling, the Woman’s Health Center drop in clinic and the Healthy Relationship session. Daybreak Family terminated her program because of her lack of commitment; (

h) AW did not complete drug testing requested by the Manager or as recommended by the methadone program. The last test the Manager received was on June 4, 2018. AW tested positive for Ritalin and Oxazepam. She accepts no blame for this failure but blames circumstances or others; (

i) AW did not apply for a new MCP card despite continued requests by the Manager. Her MCP card is a requirement for financial services; (

j) she still did not have a family doctor; (

k) AW continually procrastinated on tasks to ensure her family’s basic needs. She did not complete her taxes. She then cannot apply for new housing or the child tax credit, both of which would have improved the family’s finances. AW admitted her procrastination but said she has improved since her treatment for her illness; and (

l) AW did not take steps or attend any programs to address her ongoing addiction issues. [ 43 ] Most disturbingly, she misses regular access with B. The Manager still supervises all of her access. The

schedule is not onerous. She originally had access three times a week for two hours.

[ 44 ] The Manager reduced her access to two times a week because of her inconsistent attendance. It is difficult to imagine how she can parent the child, unsupervised 24 hours a day, seven days a week, if she cannot maintain this undemanding access schedule. [ 45 ] AW admitted she had difficulties with B but she blames her difficulties on her gall bladder and depression health issues. [ 46 ] AW said she was unable to address her issues because of this illness. She said that since she has recovered from her illness she has a new lease on life.

She is confident she can now address her issues. [ 47 ] She said that her relationship with her oldest daughter has improved since she started taking Effexor for her depression and since she recovered from her illness. She now believes that she and her oldest daughter should participate in joint counselling. [ 48 ] AW said that she has now turned her life around. She said she is working on a new and more positive relationship with her oldest daughter. She said that she no longer sees JM and is now in a relationship with RB.

However, she allows RB to see B despite knowing that the Manager does not support his access. [ 49 ] She said, and the Manager agrees, that she has only missed two of 24 scheduled access visits since her recovery. [ 50 ] She said she has now started organizing the services requested by the Manager but admitted she has not actually started participating in any of them. She pleads with me to give her time to prove that her life has changed. [ 51 ] There is little factual dispute between the parties about AW’s relationship with B and her past actions.

The main point of contention is that AW believes she has now turned her life around. [ 52 ] AW must provide evidence of an actual change in circumstances since the temporary custody orders. As LeBlanc, J. said “the parents…must provide evidence…that would tend to show that the parents’ circumstance …have changed since the child’s removal such that they can appropriately parent their child. Merely expressing a desire to resume parenting will not be sufficient”. (See Newfoundland and Labrador (Child and Youth Services) v.

N.N. , at paragraph 25). [ 53 ] Although I wish her well, her good intentions are not sufficient. She had more than two years to take steps to address her parenting problems. [ 54 ] She tends to blame most of her problems on others. [ 55 ] She did nothing until a month before this trial when she contacted service providers to apply for services. [ 56 ] She has not actually started counselling. She did not even complete her intake referral for services until March 14, 2019. The wait list for psychiatric services is two years.

Had she applied promptly after the first temporary order, her wait would be nearly over. [ 57 ] She did not explain how a 2018 illness caused her to fail to take any action to address her issues before then. [ 58 ] I find that a full trial would not benefit the parties in making their case in this Court. [ 59 ] JM did not attend or participate in this application. The Manager has had no contact with him since September 2018. He has had no contact with his daughter since then. AW said that he was aware of the continuous custody application.

Notably she said in her affidavit that she “asked him to attend court on my behalf, because he knows firsthand was a loving caring mother I really am”. [ 60 ] I am satisfied I am able to make the necessary findings of fact and apply the law to those facts in order to make a fair and just determination of the matter without proceeding to a trial. [ 61 ] I will now consider whether the Manager has established on the balance of probabilities that B is in need of protective intervention and whether a continuous custody order is in B’s best interest. [ 62 ] AW’s position is similar to that described in the decision of Fry, C.J., in Newfoundland and Labrador (Manager of Child, Youth and Family Services) v.

J. (B.) , 2013 NLTD(F) 20, at paragraph 27. She observed that the mother’s position was that with her daughter by her side, she would be able to kick her drug habit and live a healthy lifestyle free from her addictions. In this case, as in that one, this is a very large burden to place on a young child. [ 63 ] B’s parents had almost two years to get their lives back on track. They made commitments they were not able to keep.

As Fry, C.J. said, “a child cannot wait forever for her parents to get their lives in order.” Planning for B’s future must begin now. [ 64 ] I find there is no genuine issue requiring a trial. [ 65 ] I find that B is in need of protective intervention. Although, I am sympathetic to her personal circumstances, AW has prioritized her needs over those of her daughter. WHAT IS THE APPROPRIATE ORDER? [ 66 ] I place B in the continuous custody of the Manager. I find that I can make this order without the need of a full hearing. I will not make an extraordinary third temporary order.

I will now explain why I made this decision. [ 67 ] I will only make a third temporary order if AW can demonstrate to me that I can reasonably expect her to parent her daughter within a reasonable time. She must do so within the next three months, as this is the longest time I can make a third temporary order under the Act. [ 68 ] There is no reason to assume that the future will be different from the past absent convincing and dedicated action by her

parents. Although AW may finally begin to address her issues, she has not yet done so. [ 69 ] B cannot wait for her mother to show that she can meet her needs and provide her with a safe, secure and stable home. B cannot wait for her mother to deal with her issues. It is in B’s best interest to have a family situation that provides her the nurturing and stability she needs. As an expert said in Newfoundland & Labrador (Director of Child, Youth & Family Services) v. R. (G.) , 2009 NLUFC 22 at paragraph 30 , “ The reality of childhood is that it is all too short.

Children need what they need when they need it - not when their parents get to the point, if indeed they ever do, when they are able to provide for their children's needs. ” [ 70 ] As in that case, B needs a stable, safe and loving home in which to grow and thrive. AW has not shown the capacity to provide this home. [ 71 ] AW will still have an opportunity to regain custody of her daughter. However, the burden to do so lies with her. [ 72 ]

Section 42 of the Act allows the Court to rescind the continuous custody order if AW can show her circumstances have changed significantly. This can only happen if the Manager has not placed B for adoption. [ 73 ] If AW takes this application, the Court will consider if it is in B’s best interest to return her to her mother. However, AW must show that she has addressed her parenting and addiction issues. [ 74 ] I know that AW loves her daughter. I hope that she can follow through with her counselling and break free from the terrible cycle of drug addiction. DISPOSITION [ 75 ] I order that B, born on […], 2015, is in need of protection intervention under sections 10(1)(

a) and (

c) of the Act . I place B in the continuous custody of the Manager, pursuant to section 32(2)(

d) of the Act. [ 76 ] Order accordingly. _____________________________ Alexander MacDonald Justice