Director of Child and Family Services v. C.K. and C.M., 2012 MBPC 63

CP 09-51-01541 CITATION: Director of Child and Family Services v. C.K. and C.M. , 2012 MBPC 63 Date: September 27, 2012 THE PROVINCIAL COURT OF MANITOBA FAMILY DIVISION (Steinbach, Manitoba) IN THE MATTER OF: The Child and Family Services Act , R.S.M., 1985 c.C80 and amendments thereto IN THE MATTER OF: C.H.E.M., born the […] th day of […], 2009 BETWEEN THE DIRECTOR OF CHILD AND FAMILY SERVICES, Petitioner, - and - C.K. and C.M. Respondents. Counsel : Shauna McCarthy and Jason Harvey, for Eastman Child and Family Services Catherine Dunn, for C.M. Douglas Mayer, for C.K. Preston P.J.

List of Authorities The Child and Family Services Act, C.C.S.M. c. C80 Children’s Aid Society of Winnipeg (City) v. Bouvette, (MB CA), 1075 CarswellMan 23, 24 R.F.L. 350 (C.A.) Winnipeg Child & Family Services (East Area) v. D.(K.A.), (MB CA), 1995 CarswellMan 9, 13 R.F.L. (4th) 357, 125 D.L.R. (4th) 255, 102 Man. R. (2d) 262, 93 W.A.C. 262 (C.A.) Manitoba (Director of Child & Family Services) v. D.(T.H.), 2004 MBQB 276, 2004 CarswellMan 525, aff’d 2005 MBCA 123 Director of Child and Family Services v. Perkin, 29 October 2009, Doc. No. CP03-01-09383 (Man. Q.B.) Director of Child and Family Services v.

Miller, 22 September 2009, Doc. No. CP07-01-11013 (Man. Q.B.) Children’s Aid Society of Winnipeg (City) v. F., (MB PC), 1978 CarswellMan 43, [1978] 3 W.W.R. 335, 1 R.F.L. (2d)46 (Man. Prov. Ct.) Manitoba (Director of Child & Family Services) v. A.(J.M.), 2009 CarswellMan 188, 2009 MBCA 48, [2009] 6 W.W.R. 191 Winnipeg Child & Family Services (Northwest Area) v. L.(K.L.), (MB KB), 1988 CarswellMan 364, 56 Man. R. (2d)18 Child & Family Services of Winnipeg v. F.(C.L.), 2001 MBQB 92, 2001 CarswellMan 152 (Q.B.) Child & Family Services of Central Winnipeg v. B.(S.), (MB KB), 1989 CarswellMan 267, 58 Man.

R. (2d) 136 Children’s Aid Society of Winnipeg (City) v. Redwood, (MB CA), 1980 CarswellMan 44, 19 R.F.L. (2d) 232,4 A.C.W.S. (2d) 66 (C.A.) Winnipeg Child & Family Services v. L.(L.), (MB CA), 1994 CarswellMan 132, [1994] 6 W.W.R. 457, 4 R.F.L. (4th)10, 95 Man. R. (2d) 16, 70 W.A.C. 16 Manitoba (Child and Family Services, Director) v. M.E.S., [2011] M.J. No. 49, 2011 MBQB 1 (Man.

Q.B.) REASONS FOR DECISION [1] Eastman Child and Family Services (“CFS”) Agency seeks a permanent order of guardianship for an infant girl C.H.E.M.,born on […], 2009. [2] The issues for the Court to decide are whether the child was in need of protection at the time of apprehension, whether thechild is currently in need of protection and whether the future plan for the child is in the child’s best interests. [3] This multi-day trial commenced in early October of 2011. On October 18, 2011, after hearing from a number of Agencywitnesses, I adjourned the trial.

I ordered a parental capacity assessment to be completed. I encouraged the parties to complete theassessment process as quickly as possible. I also urged counsel to arrange trial continuation dates in anticipation of the completion of thereport. It was my fervent hope that the matter would not be delayed unduly. The trial evidence is now complete. I have not heard norread any expert evidence on the issue of parental capacity. An assessment was never commenced, let alone completed.

That is becauseboth C.K. (“the mother”) and C.M. (“the father”) refused to be assessed, contrary to my order. [4] The father felt there was a conflict of interest against the first suggested assessor, so two other professionals were contacted,quotes were received and undertakings were given that the assessment could be completed prior to the recommencement of the trial. Aletter dated March 11, 2012 from counsel for the father to CFS counsel outlined that the father felt the assessment would result in anunfavourable outcome for him, so he would not participate in the process.

In the result, neither parent has been assessed. [5] Unfortunately, their specific behaviour in this regard echoed a recurrent pattern of behaviour they have shown since theapprehension of their infant. In order to put the issues in context, I will review the evidence I have heard and read. THE APPREHENSION OF C.K.’s FIRST THREE CHILDREN [6] The first part of the trial dealt with the mother C.K.’s other three infant children, who were apprehended by the Metis CFSAgency in December of 2008.

In August of 2009, a permanent order of guardianship of all three infant children was issued in favour ofthe Agency. [7] I heard direct evidence from both the case worker, T.O. and her supervisor, K.M.L., of Métis CFS. They told the Court thattheir Agency responded to reports from the Public Health Nurse and the eldest child’s school regarding neglect, inadequate clothing,children being left at home alone and complaints of hunger. In October of 2008, the assigned case worker tried to contact the mother and

establish a relationship, to see if any of the concerns were valid. The mother was not responsive to Agency contact attempts, so the case worker met the eldest boy, E.A.H.K., at his school in November of 2008. The young boy referred to C.M. as his “dad” and alleged that his “parents” left the children home alone for a couple of days and he, the seven year old, was the de facto caregiver to the two infants. The eldest boy also claimed that he had to cook dinner sometimes and his “dad” was sometimes mean. He also claimed he was spanked by both of his parents.

He claimed that his dad had on various occasions out of anger “choke-slammed” him, threatened him with a knife and hanged his brother and him on a tree by their feet. He said his mother was present during some of these incidents, upset but passive. The boy also worried that his mother might die at C.M.’s hands. [ 8 ] Soon after, when the case worker was able to arrange to meet mom and “dad”, that is, C.K. and C.M., both of the adults were alarmingly critical of him. They said nothing positive about the eldest boy, even when prompted to do so.

The case worker also observed that the two year old child, J.J.K., was not responsive; the baby, P.L.K., had no toys and was sleeping with a light t-shirt and diaper with no blanket, even though it was not that warm in the home. [ 9 ] After that one hour visit, the mother made no attempt to respond to the worker’s attempts to visit her. The worker met the eldest boy again at school on December 9, 2008. The boy confirmed his concerns of having to be home alone, being hungry and sometimes hurt.

Soon after, an anonymous call came in to the Agency alleging domestic violence, child abuse and flight risk. [ 10 ] A decision was made to apprehend the three infants. On the date of apprehension, December 18, 2008, the case worker, her supervisor and the R.C.M.P. attended the family home. Present at the home were both the mother and C.M. The mother confirmed to the workers that C.M. was indeed living with her at that time. The mother also shared that she sometimes was scared of C.M. She said that C.M. was “angry and abusive” towards her but “it wasn’t that bad”.

The case worker told the Court that during the apprehension, she shared her concerns with both C.M. and the mother about “violence in the home” and C.M. became angry. [ 11 ] Although the supervisor conceded that she did not view the spare bedroom, she observed that the home was not set up for kids. There were no toys and no supplies. The baby was in the playpen, awake and staring. The two year old was “despondent” on the couch. The workers were in the home about thirty minutes. During this time, both workers observed that the mother gave her children no physical attention.

The children, meanwhile, made no fuss when they were apprehended. They did not cry; they were blank. Immediately after apprehension, the baby P.L.K. had no bowel movements, was “gorging” milk, yet barely dampened his diapers. Moreover, the baby did not cry to be fed, but exhibited a “flat affect”. The middle infant was also dehydrated. He had no clue how to play with toys or kids his age, when he first got to a foster home. The case worker concluded that this was all due to neglect. [ 12 ] The supervisor told the Court that this was an unusual apprehension, because the mother showed no upset.

In the supervisor’s words, the mother was “overly-cooperative”. Also, there was little reaction from the children. In fact, a medical assessment done on the children after that time, after foster placement, classified the two year old as “delayed”. The infant was suffering from “failure to thrive”. [ 13 ] As for the allegation of child abuse, the supervisor recalled that her worker told the R.C.M.P. on the date of the apprehension about the allegations of violence by C.M. against the eldest boy. However, the case worker recalled that it was disclosed to the police eventually by the Agency, but not immediately.

She recalled contacting the police in late January of 2009 about a child abuse allegation, which included the choke-slamming allegation. [ 14 ] The supervisor answered the issue of who was to follow up on these serious allegations of child abuse by concluding that the R.C.M.P. had been contacted and so they therefore were tasked with doing the investigation. C.M. would not attend any interviews with the Agency, so they never got to talk about abuse allegations against him. Court was told by the next case worker on the file that she followed up with the R.C.M.P. in May of 2009.

Some three years later, the R.C.M.P. sent a memo confirming that charges would not be laid. POST-APPREHENSION CONDUCT [ 15 ] After the apprehension, the case worker made many attempts to try to contact the mother. The case worker tried to set up a visit the day after the apprehension and C.M. refused to hand the phone over to the mother and said, about the visit: “She may be there. She may not.” The mother did not show up for the visit. It became clear that the mother was not open to access as hoped. The Agency was prepared to pay for transportation for visits to the three children.

The mother refused to visit at CFS; she and C.M. wanted home visits. The Agency wanted supervised visits, so no visits occurred. [ 16 ] Correspondence was never sent to C.M. regarding the three children, although both workers testified that C.M. knew all about the apprehension of the three children and the court proceeding. In fact, he attended the courthouse at the first returnable court date in January of 2009 and the worker invited him to attend planning meetings. He did not obtain counsel, nor did he attend inside the courtroom.

He, in fact, told the workers that he did not live at the mother’s home, but other sources, including the mother, said that he did live there. [ 17 ] At the first appearance on the Steinbach docket, the supervisor spoke to the mother and said “It’s really important for you to visit the kids.” C.M. was doing the answering for her. The workers asked C.M. to step away for about ten minutes and he complied. The supervisor admitted that she gently placed her hand on the mother’s arm, while suggesting that they go and speak in private. She denied using any force.

She said she was very concerned about the mother and denied being at all intimidating. When the workers tried to talk to the mother, they reinforced to her that they could arrange for a safe place for her, but she “brushed them off”. [ 18 ] Another witness, the then Director of Métis CFS, H.E., told the Court that there is no policy in place regarding physical contact between a social worker and a parent or a child; it is always entirely contextual.

The Director also confirmed that she never received a complaint from anyone about the encounter. [ 19 ] The workers concluded that at no time did the Agency receive notification from C.M. of any interest in the proceedings with respect to the three children. C.M.’s connection to this case, as far as the Agency was concerned, was that he was alleged to be an abuser, a co-parent around the time of the apprehension and an interferer.

[ 20 ] Both the case worker and the supervisor outlined that the mother simply refused to visit the children. Months after the apprehension, there was a phone call from the mother who told the case worker that she had taken a parenting course through the church, but she was still with C.M. and by this time she was pregnant. The mother wanted to arrange a visit with her three children at her home. The Agency advised the mother that they thought C.M. was a risk and they had concerns. The Agency was also concerned about the passage of time and proposed a supervised visit.

The mother was told that the Agency would pick her up and arrange a visit with the children. The mother refused the offer. The Agency tried to work through the mother’s lawyer and she still refused. During the summer of 2009, a service contract was in place to assess the mother, but that process never happened. There was a clear expectation and she did not participate. [ 21 ] Neither the mother nor CM put forward any plan. Neither of them asked for a meeting.

The supervisor recalled speaking to C.M. on one occasion on the phone to try to set up a meeting to arrange for visits with the mother and her three children. C.M. was, in her words, “uncooperative”, though he did say to her that the mother found it “too difficult to see the kids”. However he, as he often did, spoke for the mother. [ 22 ] In both workers’ opinions, throughout their dealings on the file, the three children were in need of protection.

PERMANENT ORDER FOR CFS REGARDING C.K.’S FIRST THREE CHILDREN [ 23 ] In the presence of counsel for the mother, a permanent order of guardianship for the three children in favour of the Agency was sought by the Agency and granted by the Court in August of 2009 based on abandonment by conduct. Since the granting of the permanent order in August of 2009, three years ago now, there has not been one request by the mother for a visit with her three children. [ 24 ] In September of 2009, the file was transferred to a new case worker, B.M.

When she reviewed the file, the new case worker noted, among other issues, that there were “domestic violence concerns” against C.M. As far as she was concerned, an abuse investigation was ongoing by the R.C.M.P. in Steinbach regarding two of the three apprehended children. Soon after, the Agency found out that C.K. was pregnant again. The case worker therefore followed up with the R.C.M.P. in October of 2009, because she wanted a report from the R.C.M.P. before the new baby’s birth. She expressed that concern to the R.C.M.P.

The R.C.M.P. said that they still had to interview the young boy and they would let her know when they were going to interview him. [ 25 ] In fact, B.M. remains the case worker for the three children. She first met the three children at their foster placement. She updated the Court about their current status. The eldest boy, E.A.H.K., is currently in play therapy. He had a few behavioural concerns at school at first, but now they have diminished. The middle child, J.J.K., is currently in speech therapy. P.L.K. is still being assessed at Children’s Hospital regarding possible FAS.

The Agency has no concerns about the level of care in the foster placement. The current case worker plans to facilitate contact between the baby C.H.E.M. and her three siblings. There was one visit, but the eldest boy struggled with it because the baby reminded him of C.M. There is a permanent plan that if a permanent order were granted, these visits would continue with the eventual plan to have C.H.E.M. live with her siblings. The foster parents are fine with that goal. [ 26 ] Ironically enough, the maternal aunt has had regular contact with the three children throughout their foster placement.

THE APPREHENSION OF BABY C.H.E.M. [ 27 ] There was a birth alert issued regarding the mother’s pregnancy. The Agency perceived that the newborn would be in need of protection because of ongoing, unaddressed issues. From the Agency’s perspective, there were safety issues regarding C.M. and mental health concerns regarding both parents. The case worker, B.M., did receive a call from the mother to call her mother-in-law, the paternal grandmother, C.J.M. The case worker spoke to the grandmother shortly before the birth of the baby in […] of 2009.

The grandmother verified that she was not able to look after the baby full-time, because she was working. The Director of the Agency, H.E., also recalled speaking to the grandmother about her being available to help but not to take custody of the baby, so from the Agency’s perspective, the grandmother was not an option for “external planning”. The baby, C.H.E.M., was ultimately apprehended from her mother at the hospital soon after her birth […], 2009. [ 28 ] During the parents’ first supervised visit to their new baby at the Agency office on December 31, 2009, the case worker, B.M., met the parents.

It became abundantly clear to the case worker that neither parent wanted anything to do with her. She tried to set up a meeting to do some case planning with the parents and the father was having none of it. She asked how it was going and the father said he was unhappy and wanted to talk to the supervisor. The Director attended and met with the father. The case worker was then told by her Director that the parents would only speak to the Director, not her.

This rarely occurs, but the Director let it happen in this case, to try to move the parents forward. [ 29 ] The Director told the Court that to properly plan, a social worker needs to sit down with the parents to assess capacity and to work cooperatively together and figure out the resources that the family needs. She met the parents at her office shortly after the infant C.H.E.M.’s birth to share their distress and to try to begin a working relationship. Further supervised visits were scheduled at the office. The mother did not say a word at that meeting.

The father was angry, which the supervisor testified was a fairly typical outcome. [ 30 ] The case worker, B.M., did encounter the parents at one of their supervised visits at the Agency premises in January of 2010. The paternal grandmother was also present. B.M. dropped in for about ten minutes, in a vain attempt to try to engage with the three adults. The grandmother asked her: “Where are you from?” She answered and then shared her hope that their meeting would move them forward into a working relationship, but there was no response from either parent.

She was soon after told by her supervisor not to try to engage the parents: they were very angry with her. [ 31 ] A support worker was present for the parental visits at the Agency to alleviate the Agency’s concerns about healthy engagement with the baby and safety concerns regarding the father. The support worker at the supervised visits at the Agency reported to the case worker that the parents were not interacting enough with the baby; they spent too much time complaining about CFS. They did, however, change and feed the baby, so they were meeting the basic, physical needs of the baby.

The mother, however, would barely utter a word. Either the father or the paternal grandmother would tell her what to do.

[ 32 ] The mother never asked the Agency workers about her three other children. In the Agency workers’ experience, parents usually express interest or concern. The mother expressed neither. [ 33 ] From the collective perspective of the visit-support worker, the case worker and the Director, nothing was working. Proper assessment of the parents and baby was constantly hampered by C.M.’s complaints. “Issues” were raised constantly by the father, which the Agency tried to diffuse or resolve, to no avail. For instance, the father criticized type of crib the baby slept in.

The Director, H.E., mused to the Court as to how the father could know where and on what the baby slept. [ 34 ] The Director said that there was never an opportunity to ever get past the father’s complaints; it made working together impossible. She referred to the father as “truly the spokesperson for the family”. Going through the father’s valid concerns, the Director agreed that a bruise on the baby and sunburn would be a valid concern, although she mused about sunburn in January.

However, she pointed out that many concerns were unwarranted, but still very aggressively pursued by the father, to a puzzling and often disturbing degree. For instance, he complained about seeing medicine belonging to a different child in a carry bag belonging to the caregiver. The Director saw this as a petty concern to keep complaining about, which the father did. To her knowledge, baby C.H.E.M. was not sick, nor was there any problem with medicine in general. [ 35 ] The father continually perceived issues with the baby’s level of care.

The supervisor and the case worker each told the Court that all of his complaints were addressed and all issues were up for discussion, but the father started to spend all his time focused on negative comments regarding the Agency or the care of the child. At the supervised visits with the baby, he yelled in the presence of the baby on many occasions. The Agency created a case plan for the parents and the parents received it on January 21, 2010. The father read the case plan and became very upset, calling the worker “donkey” and “stupid”. It was clear that the Agency staff felt threatened by the father.

The workers observed him to be loud and acting in an intimidating manner. The visits were temporarily suspended because of the father’s bad behaviour and its adverse effect on the baby. The Agency at that point concluded that the father was more interested in the fight than bonding with the baby. Workers were also concerned for the mother. [ 36 ] The case plan outlined that both parents were expected to take a parenting program, to participate in a parental capacity assessment and to have a drug test.

They wanted the mother to take a drug test, because there was concern about possible exposure to alcohol during the first three pregnancies. There was no evidence the father was a drug user. The Agency wanted the father to take a drug test to rule it out as an issue. From the Agency’s perspective, a parental capacity assessment was needed, since the father had been in the home and effectively co-parenting at the time the other three children were being neglected. The Agency also felt that the parents needed to be assessed psychologically, to help understand their motivations.

The Director explained to the Court that the family did not want to work with them, so outside assistance could have helped. [ 37 ] Meanwhile, the Agency felt the baby was being well taken care of in foster placement. At the age of five months, the baby was transferred from an emergency placement into a foster placement, where she has been since then.

TEMPORARY ORDER AND TRANSFER TO EASTMAN CHILD AND FAMILY SERVICES [ 38 ] The Agency, of course, still wanted very much for the parents to see their baby, so arrangements were finally secured through counsel for weekly parental visits, supervised by Pastor T., who is still the parents’ pastor at their church in Steinbach. [ 39 ] On February 18, 2010, a two-month temporary order of guardianship of the baby, C.H.E.M., was granted in favour of Métis CFS, in order to allow an agreed-upon transfer of the file to Eastman CFS.

Counsel for the father agreed to the order on his behalf, but stated that the father did not agree the child was in need of protection. However, the Director of Métis CFS confirmed to the Court that the baby was still in need of protection at the time of the temporary order because, in her words, the mother was “unable to parent” and C.M. was an “angry unknown”. She was present in court for the granting of the temporary order. [ 40 ] The Eastman CFS case worker, T.A., became involved with the case in the spring of 2010 and was involved until March of 2011.

Initially, he made about six attempts to meet the parents. They cancelled meetings or would not show up. He had to reschedule one meeting himself. He only had one phone number for the couple and the father always answered. He would ask to speak to the mother and the father said he would pass a message on to her. The mother never contacted him. Early in their phone interaction, the father told the worker that he had completed AFM, anger management and offered to be tested for drugs. The father was commended by the case worker and asked to bring proof that all this was the case. He never received proof.

Letters were sent to the parents’ counsel. On May 31, 2010, a letter outlined that the parents had missed three meetings. A letter dated June 7, 2010 outlined that a meeting very much needed to be set up. It never happened. On cross-examination, he agreed that one of the cancellations might have been because of the father’s medical issues. He predictably confirmed that he never was able to sit down and meet with the parents, so they never got involved in future planning. [ 41 ] The case worker readily agreed that there were no concerns communicated to him during the visits supervised by Pastor T.

In fact, the mother exercised access to her baby on a couple of occasions without the father being present. The visits with the pastor continued until the father cancelled them in the summer of 2010. It turned out that the father was furious that the new case worker, T.A., had contacted another pastor at Pastor T.’s church to check on how the visits were going. The case worker told the Court that he did not even know that the pastor he spoke to was not Pastor T.

He assumed the father was annoyed that he had spoken to Pastor T. when, in fact, the father was annoyed because the worker spoke to another pastor in the church. The incident infuriated the father, who took it as a complete breach of confidentiality. The case worker did not see his behaviour as any sort of breach of confidentiality; he thought it was quite relevant and tried to explain this to the father. [ 42 ] After counsel was involved, arrangements for the resumption of supervised visits were put in place. The church secretary, J.R., agreed to supervise the visits in September of 2010.

A support worker was initially involved for a couple of visits and then the secretary did it alone. The visits were positive according to the secretary, but they ceased early December 2010. The secretary had a death in her family. [ 43 ] The Agency offered supervised visits at their office as an option for continued bonding with the baby, but the parents once more refused. Thus, on January 27, 2011, a letter from CFS counsel to the parents’ counsel outlined the option of either supervised access or

“alternate arrangements”. Alternate arrangements were never offered. [ 44 ] On May 25, 2010, the case worker received a call from the father who left a message telling the worker not to bother booking visits, but to just provide court dates. The worker dutifully called the father back the following day and asked the father to reconsider his position and also provided the next court date. On June 24, 2010, the father called the case worker telling the worker to stop calling; the father was not happy because there was a “trust issue”.

It was abundantly clear that although the worker still wanted to work with the parents for the sake of their baby, the father refused to work with him. [ 45 ] T. A.’s supervisor at Eastman CFS testified that he saw the disconnection immediately when he reviewed the file in the spring of 2011. The supervisor, A.B., is a former Roman Catholic clergyman and has been the supervisor of Eastman CFS since December of 2010.

Prior to that, he had worked in a leadership capacity in diverse arenas: for instance, with the homeless and at a detoxification centre. [ 46 ] The Agency was concerned about the passage of time in the life of the baby. The supervisor told the Court that ordinarily, he does not get directly involved with clients, but he thought it was definitely time to try to rebuild communication with the family, so he told the worker to invite the family for a meeting. They tried without success by phone, letter and a visit to their home. They tried to contact the parents through the grandmother.

They invited her to contact them to get a case plan together. She expressed her disappointment and pain and also told them that when her son and daughter-in-law were “ready to talk to the Agency”, they would. [ 47 ] Since there was no rapport between the current worker and the parents, the supervisor decided to transfer the file to a new worker to try, yet again, in another attempt to get the parents to visit their baby. The new case worker, J. B., is in fact still the case worker.

JULY 2011 MEETING BETWEEN EASTMAN CFS AND THE PARENTS [ 48 ] To put it in perspective, neither parent had visited their baby since Christmas of 2010. The Agency very much wanted the parents to see their baby, but they wanted the visits to be supervised because of the ongoing, unaddressed protection concerns. The new worker called the father. Shortly after her call, the grandmother phoned the supervisor. She was upset that the new case worker had called. It was the supervisor himself who finally succeeded in setting up a family planning meeting, which occurred in July, 2011.

It took two months to get this July meeting together, because no one called the new worker back. The new worker testified that the father told her supervisor that he was “upset I had called” and told the supervisor to have her stop “harassing” him. [ 49 ] At the July, 2011 meeting were the new case worker, the supervisor, Pastor T., the parents and the paternal grandmother. Both the case worker and the supervisor told the Court that, unfortunately, the meeting consisted mostly of the father venting his frustrations.

The three and a half hour meeting was taken up with two and a half hours of what the supervisor describes as the father’s “monologue”, the theme being disappointment. The pastor interrupted the father to try to get him to focus. The supervisor recalled intervening at least three times to try to focus on the child, because it seemed to be all about the father and his feelings. The supervisor’s goal at the meeting was to try to rebuild trust and to try to work together with the family to re-establish visits with the baby.

His stated message to the father was: “Let’s begin visits and observe for about six months, in the hope of returning your baby, if everything goes well.” [ 50 ] When he asked the mother why no visits were requested by her for her three other children, she was interrupted in her attempt at a response by the father and to all intents and purposes was closed down by him. The paternal grandmother tried to help her son focus. The solution that the supervisor helped craft was supervised visits with a licensed counsellor. Very little was asked about the baby. Weekly visits finally commenced in early August of 2011.

A second family meeting took place in August of 2011. The visits were going well. However, the supervisor felt that it was important that parental capacity be assessed, to move matters forward. The supervisor introduced it again for the parents to mull over prior to a third meeting in September. At that meeting, the parents said they would think about it and phone in. These assessments are considered helpful for assessing parental capacity, figuring out supports or programming and helpful for case planning.

Indeed, a September 23, 2011 letter from CFS counsel warned that the parents were still refusing to cooperate and the initial protection concerns were still never addressed. [ 51 ] In cross-examination, the worker acknowledged that did he not review his notes before coming to court which, of course, he conceded was not satisfactory. He agreed that the father may indeed have asked at the commencement of their interactions for a list of the Agency’s concerns and a list of available programming.

He readily agreed that he wanted to work with the family and reunification was a goal, the Agency’s main concern being the baby. The Agency plan was always to speak to the parents about all of this, but he was never able to talk to them. In his opinion, the baby was still in need of protection because none of the issues had been yet addressed. He agreed parenthetically that CFS is obliged to facilitate access between siblings. At the time of the trial, there had only been two visits in the previous three months, but more were planned. SUPERVISED VISITS: AUGUST-OCTOBER 2011 [ 52 ] The Court heard from Mr.

U., who is a licensed counsellor. He ordinarily counsels clients referred by CFS agencies in order to identify their needs and work with them to try to meet those needs. He was retained by CFS in this instance simply to supervise visits. Five visits took place before the trial commenced and two visits took place during the first part of the trial. [ 53 ] The grandmother was with the parents at each visit. He observed the parents to have been sober, on time and “primarily appropriate” in their interaction during the seven supervised visits.

The baby was not fearful or uncomfortable, nor did he observe inappropriate behaviour. [ 54 ] Parenthetically, the current case worker noted that the positive reports from Mr. U about these supervised visits are “very common in this supervised access situation”. [ 55 ] Mr. U. told the Court that on two occasions, the father pointed out “what he (the father) said were injuries” to the baby. The parents did not want to take what he recommended, namely a “modified interactive guidance program”.

He said that the parents told him that their visits were so brief and not numerous, they wanted to spend time interacting with the baby rather than taking programming.

One change he did note was that the father became “more engaged” than he had been as the visits went on. [ 56 ] This testimony was given in October of 2011 before the trial was adjourned for the preparation of a parental capacity assessment, which as I have said at the outset did not occur. When the trial recommenced, Mr.

U. again took the stand. [ 57 ] He then told the Court that not too long before he had testified at trial, either late September or mid-October of 2011, at the end of one of the visits, the father said to him “If the court proceedings don’t go in my favour, it’ll be settled out of court.” or words to that effect, which he took as a threat. He did not mention this incident to the Court when he first testified, because he says he “was never asked”.

However, what he did do, in accordance with his protocol, was contact the supervisor at Eastman CFS, and told him about it and “left it in his capable hands”, as he put it. He decided after October 19 th to move the visits to allow CFS to supervise, but he was quite prepared to continue to be the facilitator at that time. He received an email in January of this year from the father expressing his frustration and loss of faith in him. [ 58 ] He opined that at present he was not able to supervise access, because his supervisor did not want him to and he does not feel comfortable doing it now.

In cross-examination, he explained that he felt a professional responsibility to report the threat to CFS. He did not feel it was his place to address it directly with the father, but he did feel it was his place to report it. He was not told to report it to the police by his supervisor. He ended up cancelling the visits in November, 2011 and expected them to be moved to a CFS office for supervision. [ 59 ] His professional conclusion was that he really did not have enough time to make any type of thorough assessment.

For instance, he would need to observe each parent with the baby on his or her own. [ 60 ] The Agency took the father’s comment to Mr. U. very seriously: a safety plan was put into effect, so that the case workers were to phone every couple of hours or so to verify they were safe. The Agency reported the threat to the police. The R.C.M.P. said there was “not enough to lay a charge”, but the Agency should contact them if anything else occurred. The Agency at the time told the parents that they were welcome to have visits with Mr. U at the Agency office or, alternatively, would welcome any other suggestions.

The supervisor told the Court that since the trial was adjourned in late 2011, he has had no contact with the family. [ 61 ] The newest case worker confirmed that visits ceased after trial, because CFS was not prepared to countenance unsupervised visits. She thought that CFS may not have approved Pastor T. since CFS believed that they needed an Agency presence at this point. In fact in December of 2011, CFS counsel emailed the parents’ counsel to confirm that the pastor was not appropriate and they wanted visits to occur at the Agency with an Agency-trained supervisor.

The supervisor reinforced that a careful reintroduction to a fragile child should be done with professional skills and someone with a professional accreditation. After the father’s comment to Mr. U., the Agency had even more concern about the safety of both the workers and the child. [ 62 ] The supervisor testified that his dealings with this family were out of the range of a supervisor’s usual interaction. He dealt with them directly in the hope of getting the family to re-engage.

His conclusion was that this whole process had become, for the father, a fight against CFS rather than genuine concern for the infant. He was at a loss to understand the father’s lack of cooperation. [ 63 ] When it was suggested in cross-examination that the father’s overarching concern was that his daughter was not being cared for properly by CFS, the answer from the supervisor was that the father’s overarching refrain was “I am hurt” and the child was not his main focus.

When it was suggested that the father had done extensive preparation for the birth of his baby, the supervisor reminded counsel that it was he, the supervisor, who had to cajole and convince the father to visit his child. [ 64 ] At the July 2011 meeting, he said to the father words to the effect of “This is your child. You are the father. You must visit the child. This is in the best interests of the child.” At this meeting, the father was not challenged with specific concerns about safety or capacity.

The supervisor outlined that it was not appropriate to challenge either parent in this regard, but to try to move them forward and establish visits. The Agency’s focus was the child and the supervisor concluded that that did not seem to be the father’s focus. He gave an example of a pre-arranged August 2011 visit. The father met with the supervisor for two solid hours. The meeting ended at 4:00 p.m. which was when the visit with the child was to take place and the father begged off the visit with the child because he was tired. [ 65 ] As far as feedback from Mr.

U., the supervisor confirmed that it was not necessarily that positive, because the father interacted more with Mr. U than the child. The grandmother seemed to be the primary caregiver. The supervisor testified that Mr. U. verbally expressed concerns to him, but he is not surprised to hear that Mr. U. told the Court that the parents did fine. After the “threat” Mr. U. was instructed by his supervisor to continue the visits supervised at the Agency. The supervisor opined that he may at that time still have permitted the visits to take placed in Mr.

U.’s office. [ 66 ] As far as the parents’ ongoing claims about injuries on their baby, the supervisor testified that the Agency dutifully sent a worker to investigate and the conclusion was that bruising had occurred due to “normal child activity”. The child had fallen and there was a small bruise. He did not recall the child ever having a split lip and a black eye. They took the father’s valid concerns seriously. PERMANENCY PLAN [ 67 ] The current case worker updated the Court about the infant C.H.E.M.

The infant is doing very well in the foster placement, where she has been since the age of five and a half months. The infant has successfully reached all developmental milestones. The infant turns three in December 2012. The infant has visited her three siblings and they all have gotten on well. The siblings are relatively close in location. The infant enjoys playing with her sister, P.L.K. The eldest boy, E.A.H.K., was initially fearful of the infant because the infant reminded him of C.M. Two or three visits between siblings have occurred in the last few months and CFS is encouraging weekly visits if possible.

The parents have never phoned her about the infant. [ 68 ] A permanent planning decision would be up to her supervisor, but the case worker testified that if a permanent order were granted, the plan for the infant would be to stay with the foster parents, who may eventually adopt the child. CFS would support this. The foster parents are not blood-related. There is a younger child and a teenager also living in the home. C.H.E.M. has her own room. The worker visits the foster home every 30 days. Foster parents would go for an “open adoption” with pictures and cards and visits at the

office. This plan, in her opinion, is in C.H.E.M.’s best interests. The supervisor in fact endorsed this plan. [ 69 ] CFS is still supportive of supervised visits for the parents. THE FATHER’S TESTIMONY [ 70 ] C.M. testified on his own behalf. He is currently 30 years old with a Grade 12 education and some post-secondary education in structural engineering. In November of 2008 he did some “consulting” work with the R.C.M.P. He met in secret with someone about to give him some information. At that meeting, he was hit from behind and then severely beaten. His nasal and ocular bones were crushed.

He had burns through his ear canal and nerve damage in his lower back and right leg. [ 71 ] In describing his relations with C.K. he testified that she was “a friend” for a number of years. He flatly denied that he was in a common-law relationship with her at the time her three children were apprehended. He denied living with her or having any parental role with her three children. He claimed that towards the end of April 2009, they realized she was pregnant. He then claimed that he commenced his common-law relationship with her in July of 2009.

He said that since July 2009, they have lived at the same address. [ 72 ] As far as specific allegations of abuse against the mother’s two young boys, he filed as proof that he was not involved with violence towards them a recent letter from the R.C.M.P. confirming that no charges are pending against him. He also claimed that he never visited the children alone, he never babysat them, and he never snowboarded with them. He did cook for them on occasion. [ 73 ] He claimed that he was trying to be “a moral support” during the apprehension proceedings.

He attended one initial court hearing and waited in the waiting area. C.K. was talking to two Métis CFS workers and asked him to stand with her at the court office while the worker served her with “the court paper”. He claimed that one of the women grabbed C.K. by the arm and said about him “Don’t worry. He can’t hurt you.” He was shocked. He did not know what to make of it. Again, this comment by the worker was not put to her when she was giving her testimony. [ 74 ] He told the Court that he was pretty excited about his first child.

He made herculean efforts in the home to prepare for the baby: buying the best formula, six months’ worth; non-toxic bottles; one year’s worth of clothing; toys and a bassinet. He tried to get the file transferred to Eastman. He bemoaned the fact that no one ever came to see any of his preparations. [ 75 ] He found out that CFS was issuing a birth alert July or August of 2009. He phoned Métis CFS and they told him that they would not talk to him unless he had DNA proving that he was the father, so he hired a lawyer. He claimed that the Métis CFS worker said to him “How do you sleep, you scumbag?

You’re up on attempt murder charges.” He immediately phoned the R.C.M.P. to tell them to tell her that he was the victim in the attempt murder. The worker was never questioned on the stand about calling a parent a “scumbag”. [ 76 ] He testified that his mother tried to intervene with Métis CFS. He says she is a supervisor at New Directions. This is not correct. Meanwhile, he testified that his mother and he spoke to a Mr. H., an Eastman CFS program director from Beausejour. The father claimed that Mr.

H.’s suggestion was that the baby could be with the grandmother and him, the father, while the mother resolved “her issues, if necessary”. He framed it thusly: “He had no problem with my fathering (the baby) because I’d taken a parenting class already and I have my mum’s support. My mum saw this as no problem.” I did not hear from Mr. H. [ 77 ] After the birth, he thought he would be leaving with his baby from the hospital provided C.K. was not living with him, but living with her mother. He was very upset.

No visits were going to be allowed until the first court appearance, so he immediately went to Métis CFS and met with the supervisor. She said that they could not see the baby and she could not do anything until court because no transportation could be arranged. He says he suggested alternatives to CFS to no avail. He was told he was an “unknown” but was not told about child abuse issues. This was not the testimony of Métis CFS witnesses. [ 78 ] After court in Steinbach, visits were arranged for two times a week in the Métis CFS office on Portage Avenue in Winnipeg.

Access was supervised and there were no complaints, he claimed. He added: “my mother was there and there were no complaints about her”. His issues with the care of the baby included the following: the nipple was too big on the bottle and so the baby was choking; the winter clothing was insufficient; there were prescription medications for another child in the diaper bag; the car seat had expired; the baby was cut and bruised. He claimed he took pictures of the cuts and bruises, but none was filed. [ 79 ] After seven visits, the supervisor cancelled them.

The father took no responsibility for his behaviour for the cancellations, but instead claimed that the supervisor got mad and said “You’re not going to see your precious little (baby) ‘til court.” and she cancelled the visit. The supervisor was not questioned during her testimony about such an insensitive comment attributed to her. [ 80 ] The next time the matter went to court, visits were resumed at the Agency office in Winnipeg.

It was quite inconvenient and neither the mother nor he is Métis; they agreed to a two-month temporary order so a transfer to Eastman CFS could take place. [ 81 ] In the meantime, the father claimed he had set up a couple of meetings with Mr. H. The father had to cancel the first meeting because of his own emergency surgery. Mr. H. had to cancel the second meeting because he needed hip surgery. As it happened, Mr. H. retired after his surgery. [ 82 ] The father claimed he wanted to meet with both the Eastman case worker and Mr. H., which of course was no longer an option.

He simply wanted to attend visits with the infant, visits now being supervised his pastor. He claimed that the new case worker embarrassed him because the worker asked another pastor, Pastor F., whether he had witnessed any domestic violence. The case worker said nothing to the Court about asking the other pastor about domestic violence. [ 83 ] He claimed that he also got off on the wrong foot with the case worker because the worker told him that Métis CFS gave him, the worker, the wrong address and the worker did not know where the baby was. This upset, scared and worried the father.

The worker, it seemed to the father, found this funny. He also claimed that the visits at the church were ongoing until the worker “lost” the child. He also claimed that the case worker “followed” the mother and him around in a grocery store. He refused to give the worker his address because “No one asked for it. It was a non-issue because they didn’t want to come to my house.” He went on: “It started to get weird

with everyone following and watching and everyone felt awkward. We really weren’t communicating.” All this, the father claimed, exacerbated his feelings against the case worker. Again, not only were these nuances of insensitivity not put to the worker when he testified, but also the incident was denied and clarified by the CFS counsel shortly after the incident in a letter to the father’s counsel. [ 84 ] He blamed transportation issues on the part of CFS for missed visits. He claimed he never refused to visit up to April 2010.

He says his contact with the worker during this time was negligible; there were a couple of call messages. He was annoyed because the apprehension papers he had to pick up from CFS were on the main counter out where he thought everybody could see them.

Also, the father claimed that when he got the court papers, the date on the cover letter indicated to him that the papers had been languishing for almost a month; he only had four days until the next court hearing and he still had to apply for Legal Aid, so he was “jerked around” on that occasion. [ 85 ] He claimed that the Agency support worker at the supervised visits thought he was “awesome” because he brought toys. His perception of the infant as the visits went on was that she was growing enough to try to stand up. He was convinced “stuff had happened to her because if you move quickly, she’d flinch”.

He had seen a dog do that. He recalled the infant being sick a tremendous amount of time. [ 86 ] To his knowledge, the Agency wanted him to take domestic violence counselling and a parenting course. He says he took a pre-natal parenting course at the church with videos, a workbook and classes for eight weeks. The empty workbook was filed as an exhibit. He claimed he took domestic violence and anger management counselling at Mamawiwichichita and did 16 weeks of work in three weeks.

No certificate of completion was filed as an exhibit. [ 87 ] He believed that his surgeries were the cause of his failure to visit his baby for such a long period of time. He also blamed the Agency for not calling anyone. His mother, after all, was always open to try to work with CFS and she was a resource. When confronted with an exhibit outlining his cancellation of visits with his child and with CFS, he claimed that CFS “intentionally scheduled meetings when I have surgery” and explained that he already had meetings set up with Mr.

H. [ 88 ] He recalled that in the summer of “2010”, the mother and he were supposed to meet with the Agency to try to straighten out visits. The assigned worker “left the case” and the supervisor contacted him. Of the July, 2011 meeting with CFS, he framed his mood as “sceptically optimistic”: he claimed that he very much wanted to work towards a reunification. [ 89 ] He describes the visits with Mr. U. as good. He claimed that he did not want to waste time talking to Mr. U. He wanted to visit with the baby. He observed a bruised thumb and that created a rift, according to the father. He framed his threat to Mr.

U. as “not exactly a threat”. He claimed that the baby had a black eye and a split lip and a handprint-like bruise on her face. This was a grave concern. He asked Mr. U. if Mr. U. was going to confirm that there were bruises and cuts and he did not get a firm answer from Mr. U. He claimed that Mr. U. told him to “Let this go. It is what it is.” and the father responded: “This is not right. I’m not going to let this go, I’m going to pursue charges, it’s not okay for a two year old to come with a black eye and face. I’m going to go to the police.” He claimed that Mr.

U. shrugged his shoulders and said nothing to him about his response being in any way inappropriate. Yet again, none of this supposed interchange was put to Mr. U. on either occasion when he testified. [ 90 ] The father was questioned about his refusal to participate in the court-ordered parental capacity assessment. He justified his non-participation in a rambling answer. Visits were supposed to continue after the trial was adjourned for the completion of the assessment. Three visits were cancelled, which is correct. Before the fourth scheduled visit, his mother was called by Mr.

U. to advise that if the parents still wanted to visit the infant, it had to be at the Agency office. He no longer trusted Mr. U. at that point because he felt Mr. U.’s reaction to him “didn’t make sense”. He claimed CFS “would not return” his calls. He felt any assessment would have been “somewhat jaded”. The first time he would see the infant would be in the presence of an assessor. He reassured the Court that he does take court orders very seriously, but he did not think it was an order made at trial. He thought it was a mutually agreed-upon process.

He only understood it was an order when he received notice in late December of 2011. He also tried to explain that the assessment cost- sharing was an ongoing issue and in his mind, there was not enough time to do a six-month assessment and conclude it before the trial recommenced.

He further explained that they, the parents, would not participate in supervised visits with their infant at the Agency office in 2012 as the Agency office was not an option; CFS had falsely accused him of a crime and he did not feel comfortable there. [ 91 ] What is his future plan for the infant? “I could look after C.H.E.M., there’s nothing in my background to prevent it and my mum would help me. I can supervise the mother if necessary. I don’t need supervision.” He thinks C.H.E.M. is in need of protection from the foster placement because of a “long series of injuries”.

THE MOTHER’S TESTIMONY [ 92 ] The mother also testified. She was asked about the apprehension of her first three children. She said when there were allegations of no food, the R.C.M.P. checked the fridge and there was food there. She told the Court that the eldest boy had expressed to her his embarrassment at school when he was pulled out of classes by CFS; she did not know what to say to him. The worker came to her house once in a while to talk to her about certain “things” and “issues”.

When questioned about the particulars on the apprehension that referred to her “boyfriend” badmouthing her eldest boy, she said it is not true that she had a boyfriend at that time. She was asked if these particulars were in error, why she said nothing about it. She struggled for an answer. She agreed that the Agency’s historical concerns “follow the mother” and agreed that they were valid concerns. [ 93 ] She did not attend court for her three infant children, because she says that court appearances occurred at the same day as the people that attacked C.M. appeared on the criminal docket.

This, notwithstanding that she retained counsel to assist her. She recounted her first court appearance, the returnable date concerning the apprehension of her three infant children. She claimed at this court appearance she was in the lobby and approached by the CFS case worker and her supervisor. She said the supervisor grabbed her arm, then pulled her and said: “C.M. cannot hurt and abuse you anymore.” She claimed that this assault to her arm left a bruise; she was scared and intimidated. She maintained that she told her lawyer that she had a problem going to court.

The man who assaulted C.M. was on the criminal docket that morning. She claimed that her counsel told her it would be difficult to have the court moved.

[ 94 ] She was asked about a letter dated February 29 th , 2009 from CFS counsel asking her lawyer to have the mother contact the Agency to set up visits. When it was suggested to her that she never visited her three children and the Agency wrote to her counsel and basically begged her to visit, her answer was “I wouldn’t say they begged me to visit. They may have encouraged me to.” However, she said after the incident with the supervisor, she was too scared.

She claimed that she did not know if she was going to get assaulted again, so she did not visit the children. [ 95 ] The mother also denied living common-law with the father during 2008. When questioned by counsel for the father, she denied that C.M. ever played any parental role with her children or had ever been physically abusive to her or the kids. Having said that, she confirmed that C.M. taught her how to cook and helped her cook and ate meals with the three kids and her after shopping together.

She added: “We’d do fun things together but C.M. never disciplined the children.” [ 96 ] She conceded that she had planned to move to La Broquerie at the end of December 2008 at the suggestion of two R.C.M.P. officers, because the R.C.M.P. believed C.M.’s and her collective security was in jeopardy after C.M. had been viciously assaulted.

So she maintained that that she lived all alone in a larger home in La Broquerie for about two months before living with her mother in Winnipeg for about three to four months and then moving in with C.M. in Steinbach. [ 97 ] She claims she commenced a “relationship” with C.M. in March 2009. A month later, she found out she was pregnant. In June or July of 2009, she claimed that they started to live common-law. In response to the disclosure by the eldest boy of abuse, she says that it could never have happened, because he would have been put in a hospital. It hurt her that her boy would say that.

She does not believe that the boy even said that. Both she and C.M. were shocked. She denied telling the workers that C.M. was being violent to her. [ 98 ] She found out she was pregnant in April 2009. CFS wanted her to take parenting courses and domestic violence courses. She saw no purpose in the domestic violence and told the worker that she knew how to deal with abuse, because she already got a peace bond against an abusive former spouse.

That peace bond was filed as an exhibit. [ 99 ] As far as the first set of supervised visits with the infant, she said they went well and “we played with her” but then echoes the father’s list of complaints about the care of her infant while in CFS custody. She claimed that during visits with Mr. U., the infant had a bruised thumb which was purple and it looked like a door had been slammed on it and she had bruises under her eyes and a handprint- type bruise on the side of her face. The paternal grandmother saw no bruise on the baby’s thumb.

The mother claimed that she pointed out her concerns about these injuries to Mr. U. and he said it was acknowledged and he would say that in court. I heard no such evidence from Mr. U. The mother maintained that at her last visit with the infant, who was responding very well and knew who they were, the infant wanted to come to home with her. Again, I did not hear such evidence from Mr. U. [ 100 ] The mother readily agreed that the key to a bond with a child is contact. Yet she testified that she does not want to deal with the Agency for supervised visits.

She “prefers that visits to (the infant) not be at the CFS office”. She believed CFS has no valid reason to be involved and the father should have had the baby, while she dealt with her issues. She did not participate in a parent-child assessment because “it was not scheduled by the Agency”. She did not see any justification for it. She did however complete the valuable program “For The Sake Of the Children”. She also received child care instruction through her church. Her plan for her baby is to look after her every need with the support of the paternal grandmother, who has a background in looking after people.

THE PATERNAL GRANDMOTHER [ 101 ] C.J.M. is the paternal grandmother of the baby, C.H.E.M. Her area of expertise is as a support worker for special needs children and adults. She has worked in the field for 15 years, but has not worked since late October of 2011. She told the Court that her son, an only child, was never a problem. Her relationship with her son is very close. In fact she told the Court that her son never left home until July of 2009. She told the Court that the mother, C.K., has been “a friend” of her son for five or six years.

She feels that C.K. is like a daughter to her and certainly part of the family. They have daily contact. [ 102 ] She was “ecstatic” when she first heard about the pregnancy, as was her son. He is a detail-oriented person and he researched everything about babies. Once she learned of the birth alert, she tried to contact CFS and be proactive. She said she was “stonewalled” by Métis CFS. It was in fact she who spoke to Mr. H., a program director at Eastman CFS out of Beausejour, to try to set up some planning.

She also went to Pastor T. for advice. [ 103 ] Her son was totally supportive of the mother during her pregnancy and very caring towards her. She has no concerns about domestic violence and has seen nothing like that from her son. She says she tried to offer herself as a “resource” but was never given a reason by CFS as to why she was not accepted. By resource, she meant a support for the parents. She told the Court that she would not feel right about “taking” the infant. She also claimed that she was told by the Métis CFS supervisor that if she were to take the baby, her son could have “zero contact”.

This assertion was never put to the supervisor during her testimony. [ 104 ] As far as the difficulties with access, she says that the “limitations” by CFS made the parents uncomfortable, because they were never allowed “on their own” time. Whenever the Agency was involved major issues were raised that “made both parents apprehensive”. Her offer of supervision was rebuffed, so she said she arranged for Pastor T. and the church secretary. [ 105 ] She echoed her son’s concerns.

She told the Court that on “several occasions” during visits, she observed visible injuries on the infant, including a “fat lip and bruised eyes”. However, with respect to the parents’ testimony about a bruised thumb, she told the Court that she personally did not see what was wrong with it, saying that the infant showed her the thumb and rubbed it. She said that Mr. U. did not think it was that big a deal and he said he would tell the supervisor. [ 106 ] She says that her son is “absolutely devastated”.

When asked about anger or wilful obstruction, she said that she has no idea where that has come from; she only knows what she sees. She maintained that her son was never angry or rude with CFS. He simply raised concerns and he was no ruder to them than they were to him. He did not say they were donkeys or stupid. He said they were “acting” like donkeys and they were “acting” stupid: a matter of semantics. She never told him to tone it down. She painted CFS as “passive-aggressive”, looking for misbehaviours on their part and very critical, especially the Métis CFS. The case worker and the

supervisor were overly critical of “any move we made, for instance, not holding her properly.” She said that Mr. H. was “brilliant”, the first Eastman case worker T.A. was “not very cooperative” because “he said one thing and did another” and “moved visits around” and “gave us late paperwork”. She even classified the Eastman CFS supervisor as “not very helpful”, “good at talking but nothing came of it”. She claimed of his input: “nothing planned was delivered”. [ 107 ] Her hope is to spend as much time with the baby and “spoil her rotten”. She has never had a daughter.

She is prepared to move in with the couple to do her best to support them. She fears that the infant will lose her heritage and self-worth surrounded by strangers and she fears that the infant will lose a lot of love. She ended her direct examination sincerely telling the Court that the baby would have more love than 98% of all children. [ 108 ] The grandmother told the Court that she was at the mother’s place two days prior to the earlier apprehension and the “kids were OK” in her opinion.

On cross-examination, when asked about the three other children being apprehended, she found it hard to believe the allegations and ended by saying that those issues (malnourishment, no toys, neglect and abandonment) are not present now.

When asked if it concerned her that the mother never visited her three children once, she responded: “Due to the mitigating circumstances, no, it does not concern me.” [ 109 ] She did not believe that CFS was adamant about the parent-child assessment request, but ultimately she reinforced to the Court that the parents’ decision had not been hers to make, whether the parents refused or declined.

As for the court-ordered parent-child assessment, she said that she did not encourage or discourage the parents, because it was their decision, not hers. [ 110 ] She denied telling the supervisor to tell the case worker to “stop calling the family”. She also denied telling the case worker that she could not take the baby because she was working. She agreed that that there was nothing stopping the mother from visiting if her son was not able to visit and there is nothing preventing her from visiting if the parents will not, but she felt that it was not her place to overstep the parents and go without them.

Her role is to support her son. She would not push the parents if they were apprehensive. “It was their decision, my role is to support them, not push past them and overstep them.” She does not see reunification as a problem. She saw bonding recur during the various visits. THE PASTOR [ 111 ] Pastor T. is one of the two non-Agency people who helped supervise visits with the parents and the infant. He is raising three children of his own and two young foster children. He has been a pastor at the same church for the past 16 years.

He has known the father and his mother for eight or nine years and has counselled and supported them as time has gone by. [ 112 ] After the mother became pregnant, the father was concerned that they might lose the child. He was a support for the father. He was present for the birth at the hospital and was present shortly after the apprehension. He witnessed interactions between CFS and the parents and he described them as “tense”.

He has never witnessed any type of violence from the father, explaining to the Court, “I’ve never seen that side of him.” He confirmed that the father did extensive research on how to raise a child and was very excited about the prospect of being a parent. After the child was apprehended he observed C.M. becoming disillusioned and frustrated and it was very difficult for the father to handle what seemed like an unjust situation to the father. [ 113 ] No one ever told Pastor T. to make notes about the visits. He would have if he had been asked to. The Pastor’s supervised visits were from March 2010 to May 2010.

He knew all about the CFS concerns. He supervised about 10 to 15 visits of approximately two hours in length at the CFS office building. He did none of the supervision at the church. The church secretary did that. The visits were fine and there were no concerns. He never met CFS staff. The visits ended and he does not recall why but he recalls the parents being adamant that they wanted him or the church secretary at the visits. [ 114 ] He recalled the purpose of the July 2011 meeting: the supervisor was attempting to see if the father would move on “his part of the equation”, as the Pastor put it.

The Pastor said that it seemed to CFS that the father had “backed off and given up”. The supervisor was “trying to kick-start access”. [ 115 ] From the Pastor’s perspective, the father was trying to show CFS that he was making an effort to be a better parent. He completed a six-week DVD seminar at the church and a question and answer Sunday school course. However, in cross-examination, the Pastor revealed that he told the father that in his dealings with CFS he must “Suck it up.” He told the father “You have no power. Do exactly what they want. Kiss butt.

That’s exactly how it works.” After the trial was adjourned in October or November of 2011, he never received a call from CFS about supervising visits. He would have been prepared to do that. He acknowledged that the father was not willing to do any of that. [ 116 ] He was not aware that the parents have always had the option of supervised visits with CFS, even though he has discussed the matter with the family throughout these proceedings. He knows they are very angry.

He agreed with the suggestion that this was their opportunity to put CFS on trial; he told the Court that he understands C.M.’s desire for “justice and things like that”. He would be willing to assist with supporting C.M. and C.K. if they got the child back. As would C.M.’s mother. He obviously understands that CFS would need to “keep tabs on it”, as he put it. THE CHURCH SECRETARY [ 117 ] The other person who supervised visits for the parents with CFS approval was the church secretary, J.G.R. Her evidence was brief.

She worked with the pastors at the church and agreed to supervise visits by the parents to the baby on a weekly basis from September through to December of 2010. If there were any concerns, she was to contact the CFS case worker. The parents’ behaviour was in her eyes entirely appropriate. The father was “very particular about safety issues”, which impressed her. She watched the three of them blossom and “become a family”. After December, 2010, she was no longer able to supervise the visits.

ARGUMENTS [ 118 ] The parents contend that the Agency’s protection concerns are built on two shaky, foundational allegations that are both flatly

contested: an allegation of violence in a home and an allegation of a common-law relationship. As far as the father is concerned there is no direct evidence of abuse before the Court. I did not hear from the eldest boy. No school authorities or child abuse authorities testified. No notes were provided by the workers. No Agency witness answered the evidence of injuries to the infant. The father was painted at the outset as an aggressor. It was no surprise he had trust issues with the Agency. He did nothing but healthy things to prepare for the birth of the baby.

The father’s counsel calls the father’s focus on the Agency’s care of his child “uber-concern”. Visits when they occurred were working and this is a cohesive family unit. Moreover, the grandmother is available as a suitable person to place the child with, imposing such conditions as are required, including supervision by a child care agency in the area. [ 119 ] Agency counsel acknowledges that the R.C.M.P. dropped the ball about the abuse issue and the Agency was not particularly diligent. Having said that, counsel outlined the parents have displayed an “historical refusal to engage” from the outset.

As far as their plan, there is no reintegration strategy, just the triangle. No real plan was presented, except the Pastor, who admitted that CFS has to be involved. As far as the grandmother, there was no encouragement by her to them to do the right thing. There was no guardianship application. She has not made her own visits and she does not have any desire to do anything behind their back. The parents have not really admitted that they need support. Also, it is too late. In effect, counsel argues, this trial was partly about putting CFS on trial. [ 120 ] In resubmission, Mr.

Harvey says that even if a temporary order were available, the parents have not been able to take steps necessary in the long term; nothing they have done predicts short-term, good behaviour, as far as supervision.

THE LAW [ 121 ] A permanent order can only be granted if the Agency establishes on the balance of probabilities that the child was in need of protection at the time of apprehension, the child remains in need of protection today and if so, the plan in the best interests of the child. [ 122 ] To that end, the Agency can and has presented evidence of “past parenting” behaviour on the part of both parents, but primarily on the part of the mother. [ 123 ]

Section 17 of The Child and Family Services Act (“the Act”) outlines various circumstances of when a child is in need of protection; that is, where the “life, health or emotional well-being of the child is endangered by the act or omission of a person”. Examples can include inadequate care, supervision or control or where the child is beyond the control of the person who has the care or custody of the child. [ 124 ] Counsel for the mother argued that the Court can grant a further temporary order of guardianship in favour of the Agency.

Counsel argued that section 27(1) of the Act, which deals with the apprehension process, applies in this circumstance and ought to be interpreted so as to conclude that after the two-month temporary order expired in this instance, a “further hearing” has commenced and a temporary order of guardianship option remains open.

ANALYSIS Agency evidence [ 125 ] The Agency has the burden in these proceedings, so it is crucial to carefully weigh the Agency evidence. [ 126 ] While the prior apprehension and permanent order of her other three children are in no way determinative of this issue, the circumstances provided salient details about the mother’s past parenting abilities. However, this does not in any way shift the burden from the Agency to the parent. [ 127 ] I accept the direct evidence of the workers regarding the circumstances of the apprehension of the first three children of the mother.

The three children were being neglected: the three month old baby was malnourished and suffered from “failure to thrive”; the two year old had no idea how to play and in fact his mother mused to the workers that she thought he might be suffering the effects of foetal alcohol; the seven year old articulated abuse and neglect. The mother confirmed a relationship with C.M.: he was present at the apprehension and thereafter was the mother’s contact point spokesperson.

At the time the children were apprehended, she admitted she was scared of C.M. and had been abused and that C.M. was part of the parenting plan. [ 128 ] The eldest boy’s hearsay allegations of child abuse must be approached with some caution. Also, Métis CFS initially believed that C.M. was the aggressor rather than the victim in an assault. However, that error alone did not cancel out their other valid concerns in terms of the violence against the mother and her two boys. Those allegations existed, as did comments from the mother to the workers confirming violence displayed by C.M.

It is what the parents did in reaction to all this that is relevant and instructive. [ 129 ] I accept that the Métis CFS supervisor did not in any way assault the mother at the first court proceeding. Such an assault would not go unnoticed or unreported, bearing in mind the mother retained counsel. I find that the supervisor’s touch to the mother’s arm was entirely appropriate, in the context of trying to create a private space to counsel the mother. She had no idea that an accused person who had allegedly assaulted C.M. was on the same docket on the same day as the child protection docket.

This is not particularly relevant. Counsel could have made alternate arrangements if this indeed was a stumbling block for the mother. [ 130 ] Similarly, it is clear that the Agency did not advise C.M. that there would be a fast-track trial. He was fully aware of the earlier proceedings, because the Agency talked to him on the phone on December 18, 2008 and he attended court with the mother and tried to control her part of the conversation. Neither the mother nor he attended. He was not the biological father.

The Agency correctly concluded that he was not involved or interested. [ 131 ] I also accept the evidence of the Agency workers regarding the child C.H.E.M. and the parents’ behaviour. For instance, the Director of Métis CFS concluded her evidence by advising the Court that the Agency never got to work on any parenting issues, because of a pattern of non-compliance. The same can be said of the parents’ dealings with Eastman CFS and added to the non-compliance was a later pattern of absence.

On two separate occasions, a director and a supervisor chose to get involved in the file directly, on the first occasion to try to mollify an “angry unknown” and the second time to try to reignite some kind of a parental bond.

[ 132 ] CFS basically cajoled the family into re-establishing visitation with therapist-supervised visits. I accept the Agency evidence that their ongoing request of the parents to participate in supervised access is an accepted practice and entirely appropriate in this context. The Agency was in no way punishing or prejudicing the parents. [ 133 ] I find that Mr U. tried to limit his testimony simply to the observations of the parents during the visits. In his way, he was trying not to prejudice the father.

However, his eventual revelation of what the father said he would do if things did not go his way in Court is entirely credible and illustrative of the fact that if things did not go precisely the way the father wanted them to go, he showed unbending, needlessly defensive, obstructive and ultimately self-defeating behaviour. [ 134 ] I accept the Agency evidence that the infant is healthy, safe, thriving and bonded with her foster placement. CFS monitors the foster placement on at least a monthly basis. The child has attained all the normal stages of development.

The Agency supports an open adoption by the foster parents, who want to adopt. [ 135 ] Counsel for the father argued that there was no evidence from the foster parents. Indeed, I heard evidence from the current case workers, which I accept, that the foster placement is appropriate. I have examined the evidence that was presented by the Agency and I do not require any further evidence from them. [ 136 ] The workers who did not bring their notes to Court all knew better. They could not recall certain precise details precisely as a result. However, their evidence was clear and unshaken on the relevant issues.

As Agency counsel pointed out, notes of Agency workers are open for review at any time prior to trial by counsel. The father’s evidence [ 137 ] The father’s evidence as a whole was disturbing. I will say at the outset that his testimony was peppered with inflammatory statements attributed to CFS workers and recollections of specific conversations, none of which was ever put to any of the Agency witnesses. [ 138 ] The father has a sincere belief in his assertions, but his assertions are exaggerated at best and distorted at worst.

For instance, he is convinced his child was and is uncared for and constantly injured or sick. I find that this is simply not the case. His mistrust of the Agency is founded upon perceived slights, misperceptions and unmet, unrealistic expectations. He has basically alleged that his daughter has suffered child abuse at the Agency’s hands. I find, on the evidence that I have accepted, that this is simply unfounded. In fact, his own mother did not corroborate what he told me was his child’s visibly-bruised thumb. Similarly, the allegation that he was stalked by a worker is simply not credible.

The whole aura of conspiratorial behaviour by the Agency that he alleged is simply not borne out by the evidence. That he would persistently put his belief that the Agency was out to get him above seeing his own infant exemplifies his dis

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