Nunavut (Child and Family Services) v B.H., 2011 NUCJ 03

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: Nunavut (Child and Family Services) v B.H., 2011 NUCJ 03 Date of Judgment: 2011-01-28 Docket Number: 21-09-514-CHW Registry: Iqaluit Applicant: Director of Child and Family Services -and- Respondent: B.H. ________________________________________________________________________ Before: The Honourable Mr. Justice E. Johnson Counsel (Applicant): Sheila MacPherson Counsel (Respondent): Diana Fan Location Heard: Cambridge Bay, Nunavut Date Heard: December 7, 2010 Matters: Child and Family Services Act, S.N.W.T. 1998, c. 34, ss. 2(e)(f)(i)(k)(l), 3(

j) and 38(1), as amended for Nunavut by s.76.05 of the Nunavut Act, S.C. 1993, c. 28 . REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] The applicant applied for permanent custody of D.T., M.T., and B.T. The first appearance in court was on October 27, 2009 and there were a number of adjournments until December 7, 2010 when I heard evidence and arguments in Cambridge Bay. [ 2 ] The respondent (B.H.) is the biological mother of the children and opposes the application. [ 3 ] B.A., the biological father of M.T. and B.T. and stepfather of D.T., consented to the children being placed into care of the applicant and has not had an active role in the proceedings.

He was served but did not appear at the trial. [ 4 ] The applicant called three witnesses while the respondent called two and I reserved judgment. [ 5 ] Both counsel also filed a number of exhibit books by consent and the applicant also relies on the affidavits of Diana Thompson filed in 2007 and 2009. II. EVIDENCE [ 6 ] There is a previous child welfare history involving these children going back to August 8, 2004. [ 7 ] The children were apprehended from the respondent and Foisy J. issued a temporary custody order for one year to B.A. on October 16, 2007. [ 8 ] Exhibit 4 is the exhibit book of the applicant.

It contains 30 documents in chronological order pertaining to the contacts between the applicant, and the respondent, or B.A., between September 18, 2006 and November 4, 2010. [ 9 ] Exhibit 5 is a chronological record of involvements relating to the respondent that were investigated by the RCMP between January 2, 2006 and November 24, 2010. There were 69 entries. [ 10 ] Exhibit 6 is a bundle of RCMP occurrence summaries covering 25 incidents when the respondent was arrested between May 30, 2008 and July 11, 2010. [ 11 ] The documentation was supplemented and tied together by the testimony of Kerri Heppner.

She has been the acting supervisor of social programs in Cambridge Bay since August 2010. [ 12 ] Exhibit 2 is the exhibit book of the respondent and focuses on the period between January 07 and November 22, 2010. This documentation was supplemented by the testimony of the respondent. [ 13 ] B.A. and the respondent commenced their relationship in 1991 and they have five children. B.A. was charged with assaulting the respondent on September 17, 2006 and there were previous unreported assaults.

The volatile relationship continued to deteriorate and both were arrested October 26, 2006 and lodged in police cells overnight. [ 14 ] The documentation demonstrates a clear pattern of regular alcohol abuse and neglect of the children by the respondent and B.A. that led to the apprehension of the children on February 09, 2007. [ 15 ] There were five incidents investigated by the RCMP between November 9 and December 10, 2006 involving the respondent as the subject of a complaint; on each occasion, RCMP records indicate that she was intoxicated. As a result of these incidents, she was

arrested once for being unlawfully in a dwelling house, once for disturbing the peace and once for mischief. [ 16 ] When investigating an incident on December 13, 2006, the police learned that the respondent had separated from B.A.

However, she continued to abuse alcohol and the police investigated six further complaints between December 13, 2006 and February 10, 2007 including two claims that she was harassing B.A. and his then girlfriend, S.O. [ 17 ] On December 20, 2006, the respondent was lodged in police cells leaving her 14 year daughter in charge of the other children. [ 18 ] B.A. was also abusing alcohol and was charged with assaulting the respondent, assaulting his new girlfriend, assaulting another person, and breaching his undertaking between September 17, 2006 and April 03, 2007.

On that date he was charged with assaulting his girlfriend again and was remanded in custody to North Slave Correctional Center. [ 19 ] The children were apprehended on February 09, 2007 because the respondent had again deserted her children while she went out drinking and left them with an intoxicated babysitter. [ 20 ] On February 22, 2007 a Plan of Care was executed with the respondent and the children were put in the foster care of their father’s mother.

They remained in foster care until September 16, 2008. [ 21 ] During this period the respondent continued have visits with the children as she struggled with addressing her alcohol addiction.

Although she expressed the desire to attend a treatment program she never took the initiative to be sent to one because she had too many problems and did not know how to talk to people about it. [ 22 ] On September 15, 2008 the respondent signed an agreement with the applicant consenting to the children being removed from foster care and put in the care of B.A. [ 23 ] On September 22, 2008, the applicant entered into a new VSA with B.A. and L.P., B.A’s new girlfriend, for the period September 16, 2008 to March 16, 2009. [ 24 ] In March 2009, B.A. and L.P. separated and the applicant entered into a new VSA with only B.A.

However, B.A. was unable to care for the children because of his substance abuse problems and they were put into foster care. He hoped to attend a residential drug and alcohol treatment center. The VSA was revised on May 26, 2009 and extended to August 31, 2009 with the children remaining in foster care. [ 25 ] Ms. Heppner assumed responsibility for the file in June 2009 and made her first contact with the respondent. Since the respondent was doing well in maintaining sobriety at that time, the applicant hoped that the respondent could resume care of the children.

However, she soon learned that the respondent was prone to slips when she would go drinking and cut off all contact with the applicant. She would be sober for her weekend visits with the children and then have a slip during the week when they were back in foster care. Sometimes the respondent would call Ms. Heppner to advise her that she was drinking and sometimes Ms.

Heppner found out after the fact. [ 26 ] The respondent’s relapses were serious and she frequently ended up lodged in the RCMP cells until she sobered up. [ 27 ] This pattern of sobriety and visits with the children coupled with regular slips continued into September 2009. [ 28 ] As a result of continuing problems in his life, on September 1, 2009, B.A. consented to the children being placed in the permanent care of the applicant for adoption.

[ 29 ] On September 13, 2009, the respondent complained to the RCMP that she had been sexually assaulted. [ 30 ] In the fall of 2009 the applicant filed an application seeking permanent custody of D.T, M.T. and B.T. [ 31 ] Except for one relapse on December 23, from November 2009 to March 2010, the respondent was responsible and had unsupervised weekend visits with the children almost every week. She was upset about the application for permanent custody of her children and she applied to take a course in parenting.

She wanted to have her children back. [ 32 ] The respondent attended some counseling at the Wellness Centre in January, February and March 2010 and wanted to continue the sessions. However, counseling services were not available at the Centre from April 1 until October 1, 2010. [ 33 ] During this time period the Centre did offer other programs such as a parenting program and a women’s healing program.

The applicant tried to attend some of the programs offered but was told she was too old to attend. [ 34 ] The respondent has taught her children how to sew mitts and she speaks Inuinnaqtun with her children. [ 35 ] The respondent has been responsible in making sure that one of the children took their prescription medication daily. [ 36 ] During the absence of the foster parents from April 1-11, 2010, the respondent cared for the children and all went well. [ 37 ] On April 11, 2010, the applicant picked up the respondent and B.T. and M.T., and took them to the airport to meet the foster parents.

The respondent then caught the flight to Kuglugtuk to testify at the preliminary inquiry into the sexual assault charge she had initiated. [ 38 ] The respondent continued to do well until the May 14-16, 2010 weekend, when she called and cancelled the weekend visit because she was on a drinking binge. The respondent told Ms. Heppner that she was upset because the sexual assault charge had been dismissed and because her cousin had committed suicide. [ 39 ] The respondent resumed her visits with the children until June 18, 2010, when she disappeared and lost contact with Ms. Heppner for three weeks. While Ms.

Heppner was away on holidays during the summer, the respondent had no contact with her replacement Colleen Boomer because M.T. and B.T. were away with their foster parents and D.T. was at day camp during the week. The respondent also had several slips and ended up in the RCMP cells. On July 19, 2010, the RCMP received a complaint that the respondent was walking around outside on the street, naked and intoxicated. [ 40 ] The respondent met with Ms. Boomer on August 8, 2010, to arrange visits with the children.

They also discussed the respondent’s addiction issues and an appointment was scheduled for August 12 with the mental health worker, Richard Welch. [ 41 ] On August 11, 2010, the respondent reported to Ms. Boomer that she had a slip on August 9 and drank until she passed out. She woke up when she believed she was about to be sexually assaulted and bit the tongue of the attacker. She was interviewed by the police and was later charged with assault causing bodily harm. [ 42 ] On August 12, 2010, the respondent met with Ms. Boomer and reported on her meeting with Mr.

Welch and indicated that he was looking into to her attending a treatment center outside the community. On August 13, 2010, the respondent met with Ms. Boomer again and arranged a weekend visit with the children. [ 43 ] The respondent attended her weekly counseling sessions with Mr. Welch between August 4 and the date of the hearing. Although she missed a few appointments, she did call to cancel them. The respondent also regularly visits the Wellness Centre to sew and to be

around people who are supportive of her sobriety. [ 44 ] The respondent claims she has been sober since August 9, 2010. The only evidence to the contrary came from Exhibit 5. An entry dated October 21 indicates that the police were called to investigate a complaint of loud noise at a residence. The respondent was asked to leave but she denied she was drinking. I accept her evidence. [ 45 ] The second entry was on November 24. A person complained that the respondent was outside his residence, intoxicated.

The respondent contradicted this hearsay evidence and I accept her evidence that she was not drinking that evening. [ 46 ] The respondent was cross-examined about an alleged incident revealed by D.T. to social worker Cindy Mohammed on November 23, 2010. She made a note of the conversation that was marked as Exhibit 1. It stated that D.T. wrote a note in his homework to the effect that he had slept over at someone’s house during a recent blizzard when he was required to be with the respondent. He stated that he was outside in the blizzard at 2 am.

He later said he was lying about it and was not out that late. [ 47 ] The respondent denied that D.T. was out in the blizzard and state that he spent the night with her. I accept her evidence. [ 48 ] In cross-examination the respondent admitted that she had attended Alcoholics Anonymous meetings in 2007 for about three weeks. She went back to another meeting in November 2009.

She testified that she was discouraged when she subsequently saw people who had attended the meetings in an intoxicated condition. [ 49 ] The respondent admitted that she told social workers Dave Allen in 2007, and Colleen Boomer in 2010, that she wanted to go for alcohol treatment. She was told that she had to talk to a counselor about it but never did, and as a result was never sent for treatment. [ 50 ] The respondent expressed an interest in attending a residential treatment center in the future. [ 51 ] The respondent was tried for the assault charge in December 2010, and she was acquitted. III. ARGUMENTS A.

Applicant [ 52 ] The Applicant argues the evidence demonstrates that the respondent and B.A. have abused alcohol for the past four years. Because of their addiction to alcohol, the children have been continuously in the care of the applicant since February 22, 2007, except for the period between September 15, 2008 and March 2009, for a total of 41 months. [ 53 ] The

preamble of the Child and Family Services Act [Act] , expresses the importance of the timely resolution of matters involving children, and time is running out for the children in this application. [ 54 ] Both parents are addicted to alcohol and B.A. has consented to the children being adopted. The respondent did not demonstrate an ability to face her alcoholism until August of 2010 when she started counseling. Although she testified that she has remained sober, there is some evidence from the police reports that she had slips in October and November.

Even if this Court accepts her evidence and gives her the benefit of the doubt, it is clear that the respondent has been struggling with alcoholism for a long time. She has had periods of sobriety when the applicant was encouraged and hoped she could resume her care for the children. However, the respondent then had serious relapses and was unable to care for the children.

[55] The applicant acknowledges the respondent’s recent improvement but is concerned she will relapse again and further delay theadoption of the children.

The issue is whether this Court is satisfied that the improvement is sufficient to justify another period where thechildren will remain in the temporary custody of the applicant. [56] The applicant acknowledges that the jurisprudence from the Northwest Territories, J.S. (Re), 2006 NWTTC 2 , 2006NWTTC 02, 146 ACWS (3d) 285, establishes that this Court has the discretion under the Act to issue another order for temporarycustody even though the 24 months specified in section 47(3) of the Act has been exceeded. The limitation does not apply unless thechild is in the continuous custody of the Director.

Where, as in the case at bar, the temporary custody in interrupted with a Plan of Careagreement, the period stops and starts again. [57] Relying on Children’s Aid Society of Winnipeg v. Redwood (1980), (MB CA), 19 RFL (2d) 232, 4 ACWS (2d)66 (Man CA) [Redwood], the applicant submits this Court should decline to exercise its discretion to extend the temporary custodyorder, because the respondent’s improvement is too little and too late.

In Redwood, the Manitoba Court of Appeal held the mother’sgood intentions were not enough and the court should consider the impact of delay on the children. [58] The applicant submits that granting an order of permanent custody would best maintain the existing status quo and would give thechildren stability. At the same time, the respondent can continue to have access to the children, because the applicant agrees to a term ofthe Order that the respondent continue to have access, pursuant to section 38(1) of the Act. B.

Respondent [59] The respondent notes that the Act is also governed by the principle of valuing and preserving the family unit, as outlined in sections2(e)(f)(i)(

k) and (l). The effect of delay on the children noted in

section 3(

j) is only one factor of many others to consider. [60] Despite the respondent’s long history of problems with social services, due to her abuse of alcohol, this Court cannot ignore thebenefit to the children of being reunified with her. [61] The respondent has been having regular, unsupervised access with the children for over a year and did not abuse alcohol when shehad the children with her.

She is now receiving regular counseling and support to remain sober, and has been able to maintain sobrietysince the August 9, 2010, incident. [62] The respondent has a solid bond with the children and the goal of reunification of the family is not out of reach. Furthermore, thisCourt should consider the cultural implications of breaking up this family unit. The respondent and her children are Inuit and therespondent speaks to them in English and Inuinnaqtun.

The mother wants to teach them traditional crafts such as making and sewingmitts. [63] As held in Children’s Aid Society of Timiskaming, (ON CJ), [2002] OJ No 1646 at para 23, 113 ACWS (3d)451 [Timiskaming], a court should not remove children from their parents until very last resort: “It must certainly be presumed to be in the interest of any child or children to remain with their parent(

s) if that parent or parents canprovide them with stable care and nurturing.” [64] The respondent submits that she is no longer the drunk, unfit mother who was unable to look after her children in 2007 and 2008.She has “turned a new leaf and… is able to give to the children the care which is in their best interests.” (as stated in Redwood, at para.6, as adopted by counsel for the respondent) [65] While the respondent has had some slips, there is no evidence of follow-up by the applicant with counseling for her before and aftershe testified in Kugluktuk.

Before the applicant takes away her children, some attempt must be made to support her in her struggle withalcoholism. Although the support was lacking at critical times, the applicant has been providing support since August with very positiveresults. [66] The case at bar is distinguishable from a number of cases from the Northwest Territories where permanent orders were made,because in those cases, the parents had shown no insight into their alcoholic behaviour and no willingness to change.

[ 67 ] The respondent submits that it is in the best interests of the children to return them to the respondent under a supervision order, or alternatively, the Court should make a further six-month temporary order. IV. ANALYSIS [ 68 ] Alcoholism is a complex disease. It afflicts a large number of the Inuit of Nunavut and there are no simple solutions. However, experience has shown that recovery starts when the alcoholic hits a bottom where they finally face the consequences of their alcohol abuse.

The bottom may be a health issue, conflict with the law, marriage breakdown, loss of employment or loss of the custody of children. [ 69 ] The respondent has had a difficult life. She was a mother at 15 years old and was in an abusive relationship from 1991 until 2006. The breakdown of her relationship with B.A. appears to have destabilized the respondent and resulted in her crossing the line with her alcohol abuse. After the separation, her consumption of alcohol spiraled out of control as detailed in the RCMP reports. She started to regularly binge drink and to lose control of herself.

She regularly caused disturbances at other homes or in public, and the RCMP was frequently in contact with her. The respondent was intoxicated at the time of the incident resulting in the assault causing bodily harm charge against her, and during the alleged sexual assaults against her in June and in September of 2009. [ 70 ] As the respondent spiraled out of control the applicant initiated proceedings with this Court to remove her children from her and they went into foster care. Despite her problems in 2008, she did manage to have periods of sobriety with the children.

The applicant hoped she might be able to resume care of the children but the alcohol won out again. [ 71 ] It took an application for permanent custody later in the fall of 2009 to finally make the respondent realize that her abuse of alcohol would result in the loss of her children. She hit a bottom and it sobered her up for a significant time. She was doing well and having regular visits with her children until she had to testify at the preliminary hearing of her alleged attacker in April 2010.

It appears that the stress of testifying and the suicide of a cousin were more than she could handle, and she relapsed again and began drinking. [ 72 ] The respondent then struggled with the bottle again until the August 9 incident. She then hit another bottom when she was charged with the criminal offence. She approached the applicant and sought out counseling. She has been making good progress since then and has been regularly attending her counseling sessions. [ 73 ] I am satisfied that the respondent would have attended counseling from April to August but it was not available to her.

If she had been in counseling, she may have avoided some of the problems she experienced in the spring and summer of 2010. [ 74 ] The road to recovery is not a straight line. It frequently is two steps forward and one step back. Having a few relapses is not unusual and it does not mean the respondent will necessarily fail again. The key is that the alcoholic is aware of the problem and has taken some positive steps to deal with it even though the conduct is not perfect. There is a risk of relapse but it can be controlled with the proper support system.

As noted at paragraph 19 in Timiskaming: “The theme of relapse was ever present in the society's case. It was, however, quite obvious from the evidence that Ms. J.C. had not let things lie since the spring of 2001. Indeed, she had made a number of efforts to resolve her problems prior to this date. It was from the spring of 2001 that she began in earnest to tackle her long-standing issues of alcohol and spousal abuse.

It was at the recommendation of a former Alcoholics Anonymous (AA) sponsor, L.S., who testified at the trial, that she attended a 21-day treatment program at the Jubilee Centre in Timmins between 22 May 2001 and 12 June 2001. L.S. was a neighbour of Ms. J.C. in Haileybury. She remained Ms. J.C.'s AA sponsor until September 2001. At that time, she said, "I fired myself". She testified that Ms. J.C. implemented 99 percent of her recommendations and that she had done remarkably well in dealing with her alcohol problem. During the one-year period after her move to Haileybury, she had been in contact with Ms.

J.C. often and found no evidence of alcohol use. Her home was well kept and those few visits when she saw M.C. and S.K.-C. at Ms. J.C.'s apartment had gone well. She noted that the girls seemed well adjusted while in their mother's care. Further to noting that she had not seen any evidence of drug or alcohol use in April and May 2001, prior to Ms. J.C.'s attendance at the Jubilee Centre, she also said that Ms. J.C. had not given her any indication of being addicted to prescription drugs. She further noted that Ms. J.C. attended AA regularly.”

[ 75 ] However, the respondent must realize that these proceedings cannot go on forever. She has now reached a time when she knows that if she drinks she will lose her children. V. CONCLUSION [ 76 ] I am satisfied that the respondent’s pattern of conduct since the fall of 2009 makes her a low risk for relapse, if she has the necessary supports in place. Those supports are the regular counseling she is receiving. Hopefully, the counseling will continue to be available over the next nine months. It is also important for the respondent to become active in the sober community of the hamlet.

This may include regular attendance at AA meetings. It is this community that she can turn to during periods of stress when she is tempted to start drinking again. She is also a good candidate for attendance at a residential treatment centre. She should also be able to attend any programs that are offered for women at the Wellness Centre. [ 77 ] I therefore deny the application of the applicant for permanent custody of the children. I believe the respondent needs more time to continue to work on the issues underlying her abuse of alcohol.

She needs support and is not ready for the stresses caused by the full time care of the children. As a result, the children will not be returned to her under a supervision order. Instead, I grant the applicant temporary custody of the children until the August 23, 2011, Chambers Date in Cambridge Bay.

The respondent will continue to have generous access to the children, as agreed upon with the applicant, and failing agreement, as determined by this Court upon the application of either party. [ 78 ] If the respondent continues to maintain sobriety during this period, I am satisfied that the children can be returned to her under a supervision order. If she relapses, she risks losing the children under a permanent order. Dated at the City of Iqaluit, this 28th day of January, 2011. _______________________ Mr. Justice Earl D. Johnson Nunavut Court of Justice