Minister of Social Development v. I.B. and R.B. –, 2022 NBKB 206

FDW/39/21 IN THE COURT OF KING'S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF WOODSTOCK Citation: Minister of Social Development v. I.B. and R.B. – 2022 NBKB 206 Date: 20221104 BETWEEN: THE MINISTER OF SOCIAL DEVELOPMENT, Applicant - and - I.B. and R.B., Respondents Application for Guardianship Date of Hearing: October 31, 2022 to November 2, 2022 Date of Decision: November 4, 2022 Before: Justice Richard G. Petrie At: Woodstock, New Brunswick

Appearances: Michael R. Young for the Applicant Anne Gall for the Respondents D E C I S I O N Petrie, J. I. Introduction 1 . At its core, this decision is about three children, M.B.#1 (born [...], 2014), M.B.#2 (born [...], 2015) and M.B. #3 (born […], 2016). The children’s natural parents are the respondents, I.B. and R.B. The three children have been under child protection and in the care, custody and control of the Minister since March of 2021 pursuant to several successive orders of mine. 2 .

As the Minister is of the view that no progress has been made, nor even attempted, by the respondent parents in making strides towards addressing the child protection concerns throughout, the Minister applied for guardianship of the three children on March 15, 2022. 3 . While the guardianship trial was pending, the Minister opted to also apply for

summary judgment on June 8, 2022. The

summary judgment motion was scheduled to be heard September 13, 2022. On that day, and after much discussion with the parties, the Court adjourned the motion, in part to allow the parents to obtain counsel and in part because the Minister likely required additional evidence. In any event, the motion was ultimately withdrawn as there was no way for it to be heard in advance of the trial proper. 4 . The Minister is firmly of the view that not only has no progress been made by the parents, but, in fact, subsequent events suggest additional troubling issues have surfaced.

The Minister presents its case on guardianship as one that is motivated to be in the best interests of the three siblings and one that requires this outcome on a timely basis in order to bring certainty and stability to these children’s lives. 5 . Most simply put, the respondents appear to hold stubborn to their view that the Minister has been unreasonable and ill- motivated in its actions throughout. They hold a deep-seated mistrust of the child protection systems in New Brunswick and Ontario.

The respondents have always maintained the children were appropriately fed, disciplined, educated, socialized, supervised and emotionally supported. 6 . This matter concerns guardianship. It is perhaps the most difficult type of challenge for the Court, given the significant permanent impact it has on a parent-child relationship. As Justice Baird of our Court of Appeal states in J.S. and J.N. v. Minister of Families and Children , 2018 NBCA 26 , at paragraph 11 : Guardianship proceedings are described as the capital punishment in family law.

This is so due to the fact a guardianship order has the effect of severing the legal rights, duties and obligations between a parent and a child. These proceedings are lengthy, and often complicated by the fact the hearings are preceded by interventions on the part of the Minister, in an effort to keep the family unit together as required by the Act . A guardianship order is sought when all other measures have failed. 7 . I simply wish to emphasize that this Court fully appreciates the challenging task before it. II. History and Context

8 . In order to appreciate my decision, it is critical to have regard to my prior decisions involving these parties. In particular, I have set out many of the background facts to this family and these children’s lives in a written decision dated July 30, 2021, published at 2021 NBQB 168 . By way of that decision, I found child protection grounds existed and I granted the Minister its initial six month custody order for the children. I also chose to include the Minister’s case plan objectives as part of my order. 9 .

On February 15, 2022, by way of an oral decision, subsequently transferred to writing and sent to the parties (unreported Court File FDW-39-21 – February 15, 2022), I set out my reasons to grant an up to six month extension of custody in favour of the Minister. Importantly, at paragraph 45 of my decision I included the following words: 45.

I do not wish to repeat my conclusion from my earlier decision but will simply state that having considered the totality of the evidence in the context of the best interests of the children criteria, the Minister has established on balance, that an up to six months extension of custody, care and control of the three children is warranted. The child protection concerns identified in my earlier decision remain.

The parents are hereby forewarned that continued resistance to engage in the case plan services and their refusal to cooperate in even a basic manner will prove problematic to future reunification with their children. To I.B. and R.B. I say in conclusion it is not simply that this Court requires you to make the efforts, no matter how uncomfortable you are with those, but it is your children who require this. (Emphasis added) 10 . Neither decision was appealed and thus those decisions, along with the accompanying orders stand.

While those prior decisions remain an important consideration, the issue before this court is now whether a guardianship order is in the best interests of the children as of this date. III. Witness and Affidavit Evidence 11 . The Minister supplied many affidavits in support of its guardianship application and called several witnesses. Evidence was provided by way of those affidavits and in oral testimony by, among others, social workers employed with the Minister who have had involvement with the family. The court also heard from a social worker with the Minister’s Adoption unit.

In addition, the Court had evidence from a social worker from the Children’s Aid Society in Hamilton, Ontario, which is currently involved with this family in relation to another, more recent, child born to the respondent parents approximately one year ago. 12 . Still further, Sergeant Paula Hanson of the Woodstock Police Force provided an affidavit and testified in relation to criminal charges currently pending against both parents and which charges have their genesis in relation to these matters.

The Court was also provided affidavits from various teachers for all three children and a speech pathologist for M.B.#2. The Respondents did not wish to cross examine those persons and thus their evidence was received by affidavit and any accompanying reports. Evidence from two psychologists who are working with M.B.#1 and M.B.#3 on, among other issues, their emotional regulation was placed before me. Only Dr. Cartwright, who is working with M.B.#1, gave oral testimony and was cross examined.

Coroner Douglas Arch and RCMP officer Mathieu Poirier also briefly testified concerning the status of investigations into the death of another of the respondent’s children, A.B. 13 . The respondents were represented by counsel at trial but did not file any “new” affidavits in response to the Minister’s request for guardianship. They had previously filed their own affidavits in relation to the initial custody application decided by myself in July 2021 and those were ultimately included in the material before me in this trial. Ms.

Gall, on the respondents’ behalf, also filed a brief and a responding document in advance of the trial. It must be noted that neither respondent testified nor did they choose to call any other witnesses. 14 . The responding document sets out, in part, the parents’ position as follows: (

a) The respondents deny all claims of abuse, neglect and poor parenting of the children. (

b) The respondents maintain that the death of the child A.B. on March 12, 2021 was by suicide and no charges in connection to A.B.’s death have been laid by law enforcement. (

c) The respondents have/intend to plead not guilty to any and all criminal charges faced in connection to the conduct of this matter or relating to the children. (

d) The children have not been in the care of the Minister for the maximum 24 months period permitted under the Family Services Act .

IV. Facts 15 . It would serve no useful or necessary purpose to repeat all of the background facts to which I already outlined in my two prior decisions. I would formally adopt all of those for the purposes of this decision. 16 . Having said this, I intend to provide a basic

summary of some of the most pertinent parts before discussing the more recent developments in particular following this Court’s decision in February 2022. 17 . The respondent R.B. was born on […], 1991 and is currently 31 years of age. The respondent I.B. was born on […], 1989 and is currently 32 years of age. 18 . The respondent I.B. is also the biological parent of two other children, A.B. (born […], 2008) and E.G. (born […], 2010, from a previous relationship. 19 . R.B. stood in loco parentis to both E.G. and A.B. for several years following the commencement of his relationship with I.B. 20 .

The respondents relocated to New Brunswick in 2018 with A.B., M.B.#1, M.B.#2 and M.B.#3. The family resided in Ontario prior to their relocation to New Brunswick. 21 . A.B. passed away tragically in the family home located in Bristol, NB, while in the care of the respondents on March 14, 2021 from what was originally reported by the respondents to be suicide; ie. a self-inflected wound to the neck from scissors. The pathologist report indicated the cause of death was a wound to the neck. 22 .

During this trial, Coroner Douglas Arch testified that his investigation into A.B.’s death has led him to recommend a Coroner’s Inquest but that no decision by the Death Review Panel nor the Chief Coroner’s office has yet been made. The RCMP investigation into the manner of A.B.’s death is said to still be ongoing with the naming of a (recently) new responsible investigator, Corporal Daniel Sharte. In any event, no criminal charges have been laid against either parent with respect to A.B.’s death. 23 .

It was as a direct result of this traumatic event in March 2021 involving A.B. that the Minister initially became involved with this family. At that time R.B. was employed in the information technology field and worked for a company in Moncton. He worked remotely from home. I.B. was not employed at the time. 24 . While much more on the direct history of the Minister’s involvement with this family in New Brunswick is set out in my prior decisions, for ease of reference, as a result of its investigations, the Minister articulated its child protection concerns to include: (

a) Children sleeping in tents downstairs with parents upstairs; (

b) Lack of food in the home; (

c) Inappropriate ways to prepare food, such as with use of a propane tank inside the home and there being no fridge or stove; (

d) The children were observed remaining in bedrooms throughout the day with their doors shut and did not come out until requested to do so by the parents; (

e) The family’s previous involvement with Children’s Aid Society in Durham for about three years with similar concerns of neglect and sleeping arrangements, as well as the parents relinquishing their parental rights to the mother’s other child, E.G., due to their inability to care for him; (

f) A.B.’s recent death (at the time in March) having been deemed to have undetermined cause and that remains still under investigation by the coroner and RCMP; (

g) The children having disclosed physical abuse by their parents that resulted in both the mother and father being charged with assault

and assault with a weapon and having no-contact orders with the children; (

h) The parents having not participated in any case plan activities; and (

i) The parents having refused to allow social workers into their homes. 25 . During the Ministerial custody trial in July 2021, the parents confirmed a history of their involvement with the Durham Children’s Aid Society between 2010 and 2018. Children’s Aid Society’s involvement, while the family resided in Ontario, was due to concerns for lack of food; lack of furniture; and a lack of stimulation and socialization for the children. The respondents further acknowledged that a Supervisory Order was put in place there with respect to these concerns and with the requirement to take counselling.

They acknowledged that they did not abide by the conditions of that order. 26 . The family was involved on an ongoing basis with Children’s Aid Society from between October 5, 2015 to April 30, 2018, primarily due to concerns about their ability to care for her son, E.G., who was autistic. The family’s file was closed after E.G. was placed in extended society care in 2018. E.G. remains in the care of Children’s Aid Society in Ontario. V. Minister’s Legal Involvement with Family 27 . The Minister, here in New Brunswick, has had the following legal involvement with the family: (

a) The children were placed in protective care on March 19, 2021; (

b) Protective Care and Interim Custody Order dated March 31, 2021 and effective March 30, 2021 following a protective care hearing by this Court; (

c) Custody Order dated August 9, 2021 (effective March 30, 2021) following a trial in July 2021; (

d) Minister filed for a custody extension application on September 20, 2021; (

e) Interim Custody Order dated September 30, 2021 and effective September 29, 2021; (

f) Custody Order dated February 17, 2021 and effective September 29, 2021 following a trial in February 2022 (

g) Minister filed for a guardianship application on March 15, 2022; and (

h) Interim Custody Order dated March 29, 2022. Significant Subsequent Events Criminal Charges 28 . While in the care of the Minister, M.B.#1, M.B.#2 and M.B.#3 participated in a series of forensic interviews in April and June of 2021. According to social worker Pouchelu, M.B.#1 participated in an additional forensic interview with her in December 2021. The December interview was triggered by a report that M.B.#1 had indicated his belief that R.B. had killed A.B. The focus of her interview was with respect to that issue. 29 .

I have previously outlined the nature of some of the disclosures of the children in my July 2021 decision, which largely dealt with alleged physical abuse and serious corporal punishment by both parents. Portions of two interviews with M.B.#1 were played before me in this trial. 30 . As a result of the disclosures made by the children during earlier forensic interviews, R.B. was charged with assault and assault with a weapon on the children in April 2021. I.B. was charged with three counts of assaulting the children with a weapon in July 2021. 31 .

The parties were before this Court on several occasions between February to April 2022. These appearances were in relation to the Minister’s custody extension application (February) and its subsequent guardianship application (March and April).

Unfortunately, on all occasions, R.B. became visibly upset and, despite my repeated cautions to him, made a number of comments or gestures that were perceived by some as purposely intimidating and threatening. Certainly, the co-lead social workers Connell and Yorke felt threatened and they reported much of this to police. Ms. Connell had first reported her concerns of alleged harassment by the B’s to police in the summer of 2021 after the first trial. 32 .

In addition, it is alleged that R.B. took steps, outside of the courtroom in the spring of 2022, in an effort to intimidate or threaten, in particular, workers with the Minister’s office. These included him allegedly stalking Minister’s staff; cruising social workers’ home neighborhoods; and writing a series of highly charged emails to various public officials. Excerpts of some of these rather disturbing emails were placed in evidence before me. 33 .

As a result of the father’s increasingly heightened and concerning behaviour, in May 2022 he was also charged with several counts under the Criminal Code ostensibly for alleged harassing and threatening behaviour toward social workers and Family Crown counsel. These charges also allege R.B.’s intent to obstruct the justice system, along with behaviour with an intent to provoke a state of fear in persons employed in the Department of Social Development and the Public Prosecution Service. 34 .

As a result of not appearing for a scheduled court appearance in Provincial Court in relation to all charges, an unendorsed warrant for R.B.’s arrest was issued on May 11, 2022 by a Provincial Court Judge. 35 . On or about May 21, 2022, police in Hamilton, Ontario executed the warrant and arrested R.B. I.B. was present and, in addition, they had a baby (M.B.#4) with them. This was unexpected. Neither the Minister nor the Children’s Aid Society had been aware of this child’s birth which apparently had occurred in […] 2021. 36 .

R.B. was ultimately transferred back to New Brunswick and had a bail hearing on May 30, 2022. The bail hearing police package placed before the Provincial Court Judge was an exhibit to Sergeant Paula Hanson’s affidavit before me. On June 2, 2022, Provincial Court Associate Chief Judge Brian McLean remanded R.B. until trial. His trial is purported to be pending November 16 to 18, 2022. 37 . I.B.’s trial on the assault with a weapon charges was adjourned and is now scheduled for March 2023. 38 . The Court was told that both respondents have or intend to plead not guilty to all charges. “New” Child 39 .

As referred above, when apprehended in Hamilton, Ontario, the parents had a young child with them. The child, M.B.#4, was born […], 2021 at the Dr. Everett Chalmers Hospital in Fredericton. She was named identically to another of their children (M.B.#3). 40 . The Minister was unaware of the mother being pregnant, let alone the birth. Neither parent had been seen much and for several months from the fall of 2021 and into the spring of 2022. There was a complete lack of communication with and willingness by both parents to meet social workers during this time.

It may well be that the parents purposefully hid the pregnancy from the social workers so as to avoid the Minister taking protective action at the birth of M.B.#4. 41 . By the spring of 2022 the parents had travelled to Ontario, where they have family, and they did so without the knowledge of the Minister or the police. 42 . At the time R.B. was apprehended, the Hamilton Children’s Aid Society placed M.B.#4 into protective care and applied for a six month custody order there. They were granted an initial temporary custody order of that child pending trial.

By August, and pursuant to a settlement, the Minister placed M.B.#4 into a kinship agreement to be cared for by her paternal grandmother and subject to the Society’s supervision, with access for the parents in the discretion of the Society. The paternal grandmother, M. G. and M.B.#4 reside in Scarborough, Ontario. According to Kristy Kelso, a child protection worker with the Society, the family’s file has been recently transferred to the Children’s Aid Society of Ottawa.

Services Offered to the Parents/Children in New Brunswick 43 . Throughout the Minister’s involvement with the family in New Brunswick they have repeatedly offered a number of services to the parents, including but not limited to supervised visits, parent aid services (such as appropriate discipline), counselling and medical appointments for the children. These services were deemed by myself to be integral to the parents ultimately achieving reunification with their children. The Minister’s brief, at paragraph 14, sets out all of the services and the evidence supports those facts. 44 .

It is simply incontrovertible that by the spring of 2021 the parents refused almost all services and chose to completely disengage with the Minister. Social worker Connell confirmed that the B.’s were “very clear from the get go” that they did not intend to participate in any services. Jessica Yorke testified similarly. The only services which the parents engaged were some supervised visits and an approval for M.B.#2 to work with a speech pathologist. 45 .

While the parents did have supervised visits with the children early on, those ended by the Spring/Summer of 2021 due to no-contact undertakings put in place against both parents related to their pending criminal charges. No visits of any nature have taken place since then. The visits that had occurred prior to that were, at times, positive, but unfortunately, more so reflective of a lack of affection and helpful or caring engagement by the parents. On several occasions the parents would engage in rather inappropriate interrogation of the children as to what was occurring in foster care.

Social worker Young testified as to having to shut down a visit due to the parents conduct. 46 . While this Court ordered the parents to engage in a parenting capacity/psychological assessment with psychologist Robert Doucet in November 2021, the parents refused. In addition, the parents would not participate in counselling despite it being part of the case plan. 47 . All communication with social workers, at least in terms of the children, has entirely ceased.

In short, the case plan objectives have been ignored and there has been virtually no positive actions taken by the parents despite the Court’s clear instruction to them as to the importance of same. It should also be pointed out that according to the affidavit of Kristy Kelso dated September 8, 2022, I.B. likewise communicated her intention not to participate in any services recommended to her by Children’s Aid in Ontario with respect to M.B.#4. The Children 48 .

Despite all of the turmoil involving this family, according to social workers Yorke and Connell, the three subject children have done very well while in the Minister’s care. They have been with the same foster family for in excess of one year after having been moved from their initial foster family for unexplained reasons. 49 . The children were homeschooled by the respondents prior to the taking of the protective care. Following apprehension M.B.#1 and M.B.#2 were placed into the school system and M.B.#3 was enrolled into daycare.

Observations were previously noted by their teachers at the time that M.B.#1 was doing relatively well, although he was fearful of making mistakes. M.B.#2, on the other hand, struggled academically, showed motor delays (not knowing how to use glue, hold scissors) and was not used to social settings. No real concerns were noted regarding M.B.#3. 50 . All three children continue to be followed by a pediatrician. Dr. Messenger, during the trial in July 2021, confirmed that he has seen M.B#1 in the past for speech delay and warts and M.B.#2 for her diagnosis of Turney Syndrome (missing the X chromosome).

Growth hormone therapy was offered to the parents but ultimately refused. 51 . Following July 2021 the children have reportedly done reasonably well in school. M.B.#1 and M.B.#3 are at grade level. M.B.#2 continues to have an education assistant and is slightly behind grade level, although making good progress and has moved on to Grade 2 this year. 52 . Currently, M.B.#1 attends Hubbard Elementary in Oromocto and is in grade 3. The other two children are in Assiniboine Avenue Elementary School also located in Oromocto. The evidence from each child’s teacher is, thankfully, quite encouraging.

All three children arrive at school appropriately dressed and with sufficient lunch and snacks. They have good attendance and they are all social and generally happy children. 53 . It is noted that M.B.#2 continues to have some learning challenges such as being able to determine if two words rhyme

and she continues to work towards learning sounds. She has been placed on a “short term intervention plan” which will target her asking before leaving the classroom; remaining in her seat; and being an active listener during “read alouds” and smartboard activities. M.B#2 attends speech therapy with speech pathologist, Ruth Woodworth. 54 . M.B.#3 and M.B.#1 each attend counselling with a psychologist and are making progress in learning strategies for helping them both process their feelings and emotions. 55 . Dr.

Cartwright, who has worked with M.B.#1 since the fall of 2021, confirms that M.B.#1 continues to require therapeutic intervention I have chosen to reproduce a portion of her report dated September 21, 2022 at paragraphs 5 and 6: The plan for intervention initially offered a safe space and contact with a consistent adult where he can share his experiences and build a trusting relationship.

In our initial meetings, and in discussion with foster parents, it was established that during the winter months of 2021, [M.B.#1] was doing quite well, with some exceptions in his ability to consistently listen, and to respond to consequences for any challenging behaviours. Foster parent noted in a recent session, that [M.B.#1] sometimes struggles to recognize appropriate boundaries, and provided examples of instances in which [M.B.#1] may be taken advantage of. For example, while playing with a child in his neighborhood, [M.B.#1] did not remove himself from play after being struck by the child.

Another example provided by his foster parent suggests that [M.B.#1] may not yet have the ability to determine whether some social situations or people are positive or negative, and he may put himself in harm’s way or be taken advantage of. Targeting understanding of healthy relationships, and appropriate boundaries within healthy relationships, both with peers and adults in his life, will be an important aspect of therapeutic intervention. This can be done in therapy with [M.B.#1] directly, teaching him about how to discern how to trust people and how to set reasonable limits when peers are being unkind.

Another potential goal of therapy is allowing [M.B.#1] an opportunity to share and process his early childhood experiences, including things he may have endured and those he has witnessed in his home of origin, as well as providing him an opportunity to process the loss of his older sister, [A.B.]. Moving forward, we have arranged for [M.B.#1] to engage in more frequent sessions to establish a therapeutic relationship with his therapist.

Further, I will provide support to foster parents as needed, to provide them with education around behavioural challenges that may arise, in addition to supporting them to understand how children who have experienced maltreatment, loss, and those who are in foster care placement benefit from consistency and firm but nurturing and sensitive caregiving. (Emphasis added) 56 . Psychologist Dr. Malcom did not testify but her prepared report concerning her involvement with M.B.#3 was entered into evidence without objection. She described M.B.#3 as friendly and with good social and communication skills.

I have reproduced paragraph 5 of Dr. Malcom’s report dated September 23, 2022. At present, I believe that [M.B.#3] has demonstrated good progress towards the treatment goals of relationship formation and identifying aspects of her sense of self (e.g., identifying her interests, etc.). This has been supported by a strong therapeutic relationship. I believe she would benefit from additional intervention support regarding emotional awareness and identification.

She would also benefit from the support of a strong therapeutic relationship to allow her the opportunity to process the passing of her sister, [A.B.], and any other adversity she has experienced or is experiencing, when she is ready. In the future, she may benefit from a psychodiagnostic assessment that explores her impulsivity and activity level in more detail. (Emphasis added) VI. Issues 57 . (

a) Is it in the best interests of M.B.#1, M.B.#2 and M.B.#3 that a Guardianship Order be issued transferring custody, care and control of the children to the Minister on a permanent basis? (

b) Is it in the best interests of the children that a right to access be reserved for the children to have contact with the respondents?

VII. Law and Analysis 58 . The Minister seeks guardianship of the three children pursuant to section 56 (1) of the Act . A guardianship order is one that transfers the custody, care an d control of a child along with all parental rights and obligations to the Minister on a permanent basis. 59 . Section 56(1) of the Act states: 56(1) The court may make a guardianship order transferring from a parent to the Minister on a permanent basis the guardianship of a child, including the custody, care and control of, and all parental rights and responsibilities with respect to, the child. 60 .

Recently, this Court, in Minister of Social Development v. S.B. and J.B. , 2022 NBQB 111 , reviewed the legal principles applicable to a Court’s analysis in guardianship cases. I have chosen to repeat much of what I stated there along with additional observations. 61 . Guardianship cases are adversarial in nature. While the legal onus rests with the Minister to establish the case for guardianship, the burden of proof in an application by the Minister such as this, is the civil standard, i.e., on the balance of probabilities (see F.H. v. MacDougall , 2008 SCC 53 ) . 62 .

In New Brunswick (Minister of Social Development) v. K.A.M. , 2011 N.B.J. No. 511 , my colleague, Justice Ferguson, said the following at paragraph 75 with respect the burden of proof: 75. For the Minister to succeed in any one of the three Applications, the admissible evidence must be sufficient to pierce the family's reasonable expectation of privacy as set out in the Act , the Charter and at common law on the basis of that the "best interests" of the children require it.

However, the quantum or amount of proof required to satisfy the burden cast upon the Minister will vary depending upon the nature of the order sought. For example, obtaining an order to supervise children will carry an easier evidentiary or factual burden to meet than the permanent extinguishment of parental rights by way of a guardianship order that in most cases terminates all parental rights forever. (Emphasis added) (See also Walsh J in New Brunswick (Minister of Social Development) v. H.(S.) , 2013 NBQB 263 at paragraphs 16 – 18 ). 63 .

Section 1 of the Act s ets out the all-important definition of “best interests of the child” as follows: “Best interests of the child” means the best interests of the child under the circumstances taking into consideration (

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

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

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

(

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

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

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

g) the child’s cultural and religious heritage; 64. Section 53(2) of the Act requires the Court to give primary consideration, and above all others, to the “best interests of thechild”. It states: 53(2) When disposing of an application under this Part the court shall at all times place above all other considerations the best interestsof the child. 65. In N.J.P. v. Minister of Social Development, 2012 NBCA 3, the New Brunswick Court of Appeal, in light of the SupremeCourt of Canada decision in Gordon v.

Goertz, (SCC), [1996] 2 S.C.R. 27, (hereinafter called “Gordon”) at paragraph13, held that the determination of the “best interests of the child” has been elevated from a paramount consideration tothe only consideration. 66. As stated by the Supreme Court of Canada in their seminal decision in Young v. Young, (SCC), [1993]CarswellBC 264 (SCC): A determination of the best interests of the child encompasses a myriad of considerations, as child custody and access decisions havebeen described as "ones of human relations in their most intense and complex form". 67.

Furthermore, it is recognized that the best interests of the child must be from the standpoint of the child and not from thestandpoint of the parents (see New Brunswick (Minister of Health & Community Services) v. M.P., [1997] S.C.C.A. No. 415). 68. Again, the best interests of the child is paramount to all other considerations including the family unit. In a 2011 decision,the late Justice Walsh in K.M.J. v. New Brunswick (Minister of Social Development), 2011 NBQB 345, made the following comment inlight of a Court of Appeal decision he references at paragraph 43 of his decision: 43.

It is important to add that modern judicial

interpretation of a child's "best interests" eschews the notion of priority of parentalrights or primacy of the preservation of the family unit in the making of custody decisions, permanent or otherwise. What the lawreflects is that parents have the responsibility for and the supervision of their children. At the same time, this responsibility andsupervision can be taken away if it is in the "best interests" of the child to do so. (See: J. F. v. T. E., 2010 NBCA 14, at paras. 15-31). 69. In Catholic Children’s Aid Society of Metropolitan Toronto v.

C.M., (SCC), [1994] 2 S.C.R. 165, 165 N.R.161, 71 O.A.C. 81; 113 D.L.R.(4th) 321; 2 R.F.L.(4th) 313, Judge L’Heureux-Dubé stressed the overriding criterion of the best interests

of the child, at pp. 203 and 204 [S.C.R.]: The focus of maintaining family units is only commensurate as long as it is in the best interests of the child, otherwise it would beat cross-purposes with the plain objectives of the Act, as Wilson J. noted in Racine v. Woods, supra, at p. 185: [ . . . ] it is the parental tie as a meaningful and positive force in the life of the child and not in the life of the parent that the courthas to be concerned about.

As has been emphasized many times in custody cases, a child is not a chattel in which its parents have aproprietary interest; it is a human being to whom they owe serious obligations.’ Finally, it is clear that the best interests of a child require different solutions over time and such interests may have to take precedenceover any parental interests. As was recently said in Young v. Young, supra, at p. 60, the ‘furtherance and protection of the child’sbest interests must take priority over the desires and interests of the parent’.

Further, as examined in New Brunswick (Minister ofHealth and Community Services) v. S.G. and S.A. (1989), (NB CA), 100 N.B.R.(2d) 357, at p. 360, a child’s bestinterests must take precedence over all other considerations[.]” (Emphasis added) 70. Recently, my colleague, Justice Godbout, aptly summarized the Court’s challenge in MSD v. J.H. and K.G. (Court File No.FDF-61-2019), March 17, 2021 at paragraph 157: 157. In this matter, we have two respondents who love their children passionately and are distraught at the idea that they may not bereturned to their care.

It would be easy, and indeed compassionate, to take their feelings into consideration when deciding this family’sfuture. However, this Court’s overriding concern must be the best interests of the children “above all considerations” (see section53(2) of the Family Services Act). In child protection cases, the best interests of the children will at times conflict with the desire of theparents to be reunited with them. 71. This Court recognizes that its focus must be on the welfare and overall best interests of the three children. 72. As the Minister noted in its brief, the

preamble to the Act recognizes the concept of minimal state intervention in the livesof families. However, I must note as well that the Act is to be appreciated in its proper context, which is as a child protection, not aparental rights statute (see Winnipeg Child and Family Services Central Area v. W.(K.L.), 2000 SCC 48 , [2000] 2 S.C.R. 519). 73. In its application, the Minister indicates concerns over the “security and development” of the children being at risk while inthe care of the respondents. The Minister grounded its application pursuant to subsections 31(1)(b), (c), (

e) and (

g) of the Act. To paraphrase: 31(1) The security or development of a child may be in danger when (. . .) (

b) the child is living in unfit or improper circumstances; (

c) the child is in the care of a person who is unable or unwilling to provide adequate care, supervision or control of the child;

(. . .) (

e) the security or development of the child may be in danger due to physical or emotional abuse; (. . .) (

g) The child is in the care of a person who refuses to obtain care or other treatment necessary for the health or well-being of the child or refuses to permit such care or treatment to be supplied to the child. VIII. Best Interest Factors 74 . Keeping the above principles in mind, I will review each of the criteria found in the “best interests” definition under the Act and in accordance with the evidence before me. (

a) The Mental, Emotional and Physical Health of the Child 75 . I.B. and R.B. have wholly refused to participate in services required of them in order to alleviate the child protection concerns expressly found in both of my prior decisions. They were made well aware of the expectations in order to achieve reunification with their children. They do not even acknowledge the identified concerns. I am convinced that the children’s mental, emotional and physical health could be at real risk if they were returned to I.B. and R.B. at this time. I have no basis to conclude otherwise. 76 .

The children have been in foster care for approximately 19 consecutive months. The evidence suggests they are being entirely properly cared for in terms of their mental and physical health. (

b) The Views and Preferences of the Children 77 . The children are quite young and the Court has not been provided with any reliable evidence in this regard. (

c) The Effect Upon the Children of any Disruption in the Children’s Sense of Continuity 78 . These three children have been subjected to real instability in their young lives. They were initially removed from their parents’ care in March 2021 and they have not had any contact with either parent since June 2021. Unfortunately, they were also removed from their first foster family by November 2021. While the parents may wish a return of their children, they have stubbornly chosen not to engage with social workers or service providers. They have simply exempted themselves from any process towards reunification.

The respondents have actually taken steps at times to conceal their whereabouts and have refused to communicate with social worders. This Court previously expressly encouraged and directed the parents to cooperate with the Minister, and indeed directed the Minister to extend full efforts to work with the family. Unfortunately, the evidence suggests the parents have chosen a different route. 79 .

Placing the children back in the care of the respondents without knowing where the children will be and what conditions they will be living in would likely cause significant disruption to the children’s sense of continuity in addition to placing their wellbeing at risk and unnecessarily risking a potential further apprehension in the future. The father is currently incarcerated awaiting trial. The mother appears to spend time in both NB and Ontario. The Court did not hear from the respondents in order to appreciate their intentions. 80 . Ms.

Gall argues that the Minister should have explored a kinship agreement with R.B.’s mother. It is apparent that the B’s did, early on, raise that possibility with social workers. However, Kaitlyn MacFarlane testified she advised them of the requirement for the prospective kin caregiver to obtain a criminal record check and child investigation clearance check. This never occurred. Also, Ms. MacFarlane, Ms. Yorke, and Ms. Connell all testified that the B’s, in a subsequent conversation, on April 8 th , indicated that they no longer wished to pursue the kinship arrangement.

81. While a further discussion may have occurred in late May 2021 where the B’s again raised the children being placed withR.B.’s mother, the Minister rejected this given the B’s complete failure to participate in services; to cooperate; and the initial abusedisclosures of the children along with the criminal charges that had been laid against Mr. B. by then. Furthermore, it was never madeclear to the Minister that the grandmother was actually living in N.B. Mr. Young confirmed there was a lot of chaos going on during thattime. 82.

While this Court had heard, during the first trial, of R.B.’s mother possibly intending to move to New Brunswick, she didnot testify at either trial and nor did she in this case. In any event a kinship arrangement was also not pursued by the paternalgrandmother nor the parents. The Respondents offered no evidence as to explain their wishes nor even confirm the paternalgrandmother’s willingness to act as a caregiver to the children in this case. Last, I wish to note from Kristy Kelso’s affidavit dated July22, 2022, that the paternal grandmother, M.

G., in the case of M.B.#4, “presented a plan to care for the child”. This never occurred withregard to the three children in N.B. (

d) Love, Affection and Ties 83. I would offer from paragraph 139 of my July 2021 decision: 139. There is a undoubtedly love, affection and bond between the children and their parents. The children have no ties with any otherfamily in the area. In any event, love and affection is not enough to trump all other factors or definitively determine best interests (seeMinister of Social Services v. A.H. (1984), (NB KB), 59 N.B.R. (2d) 432 (NBCA)). (

e) The Merits of Any Ministerial Plan 84. Simply put, at present, this Court sees the Minister’s plan with the ultimate intention to find a family to adopt these threechildren together as a sibling unit as the much preferred approach. It is effectively the only plan. Unfortunately, the parents havecontinued to maintain there to be no justification at all for the Minister’s involvement or intrusion in the family’s life despite severaldecisions of this Court to the contrary.

The parents’ “plan” throughout has been to wholly reject any Ministerial concerns and to have thechildren returned to their care without any Ministerial involvement. They may now wish to have them placed with family in Ontario. Asboth parents refuse to participate in services and engage with the Minister, the Minister understandably argues that it knows of no planthat either parent could present which would permit the safe placement of the children in their care at this time. Certainly, given thehostility and noncooperation of the respondents a supervisory order would not be possible. 85.

I understand the Minister intends to keep the children living with their current foster family, where they are well taken careof until adoption may occur. Adoption of the three siblings together will be, and must be, a priority. Social worker Kaley testified that theMinister’s Adoption unit will give priority to exploring adoption by extended family members before the general public. Interprovincialadoption is at least one of several options.

The children will continue to receive counselling to deal with the trauma of losing their sister,A.B.; being taken into protective care; and the possibility that they have suffered physical abuse. (

f) The Need to Provide a Secure Environment 86. Reference must be had to my findings on this factor in my July 2021 decision, primarily paragraphs 141 through 148. 87. Regrettably, virtually nothing productive has occurred since that decision to ameliorate, in any way, my concerns. Indeed,little if any effort has even been attempted by the parents. In fact in many ways, things have gotten much worse. The parents haveinexplicably demonstrated no interest or willingness to address the protection concerns previously determined by this Court. (

g) The Children’s Cultural and Religious Heritage 88. While there was very little evidence offered on this factor, Ms. Gall noted the children to be of African American descent.She argued adoption placement into a family with similar traits would prove difficult in N.B. IX. Conclusion 89. It is in both the historical context as well as the current circumstances that the guardianship application regarding thesethree children needs to be analyzed in order to determine the best interests of the children.

Whether or not any “change” has occurred soas to reduce or eliminate the initial protection concerns regarding the children is, of course, a central theme to my decision. Theadditional subsequent events are also disturbing.

90. I have scrutinized the evidence with care. I am satisfied that the evidence of the Minister is sufficiently clear, convincingand cogent to satisfy the balance of probabilities test. (F.H. v. McDougall). The contention that the respondents pose a substantial riskof harm or a real chance of danger to their children has been established to the Court’s satisfaction on a balance of probabilities and I seeno basis to conclude those concerns will be alleviated in the future. 91.

Furthermore, I am not required to defer any guardianship decision until the maximum 24 months time limit (section 55(2))has expired (see S.H. v. New Brunswick (Minister of Social Development), 2021 NBCA 56; and New Brunswick (Minister of SocialDevelopment) v. E.T. and K.A., 2020 NBQB 148). 92. Virtually no progress has been made by the respondents, but their continued resistance to commit to engage in servicesrecommended by the Minister and ordered by this Court clearly establishes them to have no meaningful insight into those childprotection concerns.

The pattern remains the same; the respondents remain resistant and non-compliant. The circumstances are unlikelyto change within any reasonably foreseeable time, if ever. The Court agrees with and accepts the Minister’s submissions. 93. Having considered the totality of the evidence and the applicable law, the Court finds the order requested by the Ministeris the only appropriate one, 94. As a result, it is in the best interests of M.B.#1, M.B.#2 and M.B.#3 to be placed in the permanent care and custody of theMinister pursuant to section 56(1) of the Family Services Act. X. Post-Guardianship Access 95.

With respect to access, Ms. Gall, on behalf of I.B. and R.B., has requested an order for access to the children. Mr. Youngargued against it as it should not interfere with the adoption process. 96. As I understand the state of the law, the reservation of access for children to their natural parents following a guardianship,especially where the plan is adoption, is rare and exceptional (see Minister of Health and Community Services v. M.L. and R.L., (SCC), [1998] 2 S.C.R. 534 (S.C.C.), paragraphs 38 and 39). I have also reviewed the New Brunswick Court of Appealdecision in C.A. v.

Minister of Families and Children, 2018 NBCA 67 (NBCA). I am convinced that in all the circumstances and inapplying a child-centric test it is not in the child’s best interests to expressly reserve access rights to either parent. I do not wish this tohamper the children’s prospects for a successful sibling adoption. XI. Order 97.

In accord with the foregoing, pursuant to section 56(1) of the Act, a guardianship order is granted to the Ministertransferring on a permanent basis the guardianship of the children, M.B.#1 (born [...], 2014), M.B.#2 (born [...], 2015) and M.B. #3 (born[…], 2016), including custody, care and control and of all parental rights and responsibilities with respect to the children.

The childrenshall not retain any express rights of access to either of the respondents but rather, any access shall be determined by the Minister ofSocial Development consistent only with the children’s best interests. ________________________ Richard G. Petrie J.C.K.B.