Minister of Social Development v. S.S. and S.W. –, 2022 NBKB 234

FDW/152/20 IN THE COURT OF KING'S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF WOODSTOCK Citation: Minister of Social Development v. S.S. and S.W. – 2022 NBKB 234 Date: 20221201 BETWEEN: MINISTER OF SOCIAL DEVELOPMENT, Applicant - and - S. S., Respondent - and - S. W., Respondent Application for Guardianship Date of Hearing: November 28, 2022 and November 29, 2022 Date of Decision: December 1, 2022

Before: Justice Richard G. Petrie At: Woodstock, New Brunswick Appearances: I. Mae Florina for the Minister of Social Development S. S. per se (did not attend) S.W. per se D E C I S I O N Petrie, J. I. Introduction 1 . The Minister of Social Development (MSD or Minister) brings an application for a Guardianship Order with respect to the respondents’ child K.S.C.S. born [...], 2020. 2 . The respondents are the biological parents of K.S.C.S . 3 . The child has been in the care of the Minister since his birth and for, at this point, almost 24 consecutive months.

The child has resided in the same foster home since birth. 4 . The respondents were the parents of one other child, K.E.J.S., born [...], 2015, who is not the subject of the present application. K.E.J.S has been adopted after a Guardianship Order in favor of the Minister was granted in 2019 by this Court. At the time of that Order K.E.J.S had been in the care of the Minister for 22 months. While my earlier decision was not reported, it was put in writing and shared with the parties herein at the time, and should be read as giving additional context to the current matter before me. 5 .

The respondent, S.S. has two additional children from a previous relationship, C.T.M.S., born [...], 2008, and C-L.W.S., born [...], 2012. These children are also not the subject of the present application. These two children are residing with their biological father. S.S. has no access with them. 6 . This matter arises in the context of longstanding child protection concerns for which the Minister has involved itself with both respondents. Most generally, the concerns have included significant illicit drug use by both parents.

This drug use includes, but is not limited to, drug use while the mother was pregnant with K.S.C.S. and the child experiencing withdrawals at birth. In addition, the respondents have unresolved mental health issues and particularly S.S.. Further in the past, intimate partner violence has occurred between the two respondents. 7 . The Minister is firmly of the view that almost no progress has been made by the respondents in addressing the noted child protection concerns and thus the Minister brings its case as being in the best interest of young K.S.C.S.. 8 . This matter concerns guardianship.

It is a difficult 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 : 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. 9 .

Unfortunately, S.S., despite being served with and otherwise aware of the long-scheduled hearing dates, did not appear. S.W. did appear without counsel. He participated in the morning session on the first day of trial but was absent during the afternoon. I decided, after delaying, to continue. He appeared again on the second day and testified, plus made final submissions. II. History and Context 10 . The Department of Social Development has longstanding involvement with the family:

a) Open case with Family Enhancement services from January 2016 to January 2017;

b) Child protection case from January 2017 to April 2019 pertaining to K.E.J.S, due mostly to the following concerns: significant lack of engagement in the Case Plan; lack of attending visits; neglect of the child; drug use by both respondents; and alleged sexual and other abuse of S.S. by S.W.. [Keep in mind that I was satisfied of the establishment and severity of some of these concerns in granting guardianship of K.E.J.S to the Minister on March 28, 2019];

c) Child protection case from December 2020 to date pertaining to K.S.C.S. due to the following concerns: Parents longstanding history with the department; the respondents’ failure to participate in the case plan, drug use by both parents; S.S. admitting to drug use while pregnant and the child having withdrawals at birth; S.S.’s mental health issues; and intimate partner violence between the respondents. 11 . The Minister has had the following legal involvement with the family in regards to K.S.C.S. :

a) Protective Care dated [...], 2020;

b) Custody Order on consent, dated March 3, 2021 and effective December 14, 2020;

c) Custody Extension Order, dated [...], 2021 and effective June 15, 2021;

d) Custody Extension Order, dated December 20, 2021 and effective December 16, 2021; and

e) Custody Extension Order, dated June 28, 2022 and effective June 27, 2022. 12 . While S.W. testified he felt “the system” forced his agreement to the various Orders, it should be noted that the respondents did provide their consent to all of the above Orders and with advice or opportunity to obtain the advice of, Legal Aid supplied counsel. 13 . Upon each Order being issued, the Minister put into effect almost identical case plans which set out the expected actions to be taken by the parents in order to allow for safe reunification of the child. III. Services 14 .

While the Minister had been offering services to the respondents well prior to K.S.C.S. ’s birth, the Minister took protective care of K.S.C.S. at his birth. Again, the Minister implemented almost identical case plan services to address the protection goals which included:

a) Supervised visits with the child;

b) Addictions and Mental Health Services;

c) Parent Aide Services;

d) Bayshore Services and random drug screenings;

e) Scheduled and unscheduled visits into the family home;

f) Departmental Meetings. IV. Facts 15 . The evidence supports the Minister’s contention that throughout its involvement with the respondents and with respect, in particular, to its time with K.S.C.S., the parents’ participation in services has been very limited and unfortunately not productive. Some of the challenges include inconsistent and limited attendance at supervised visits with the child from his protective care at birth, and all the way through to today.

Many visits have been cancelled or missed and at times concerns have been noted during visits where S.S. and/or S.W. appeared to be under the influence. As was confirmed by social worker Ms. Arsenault, on a few of those occasions, the presence of drugs was later confirmed by a drug screen. 16 . In two years time, supervised visits have not progressed beyond more than a couple of hours per week. The Department has been unable to move the visits with the child into the respondents home mostly due to poor conditions of the home.

Both respondents have been continuously asked and encouraged to clean the home, but no progress has been made. Family support worker Patty Hanson described S.W.’s participation at the limited number of visits he did attend, as “very good” and his interaction with K.S.C.S. was “hands on”. 17 . Social workers managed to view the respondents residence on June 15, 2022 during a drop-in visit. Ms. Arsenault observed drugs and drug paraphernalia as well as a machete in plain sight. The home was cluttered with garbage and debris and damage was observed in the home (large hole from water damage in the ceiling). 18 .

Further, the evidence reflects that the respondents have experienced incidents of domestic violence while together. To date neither respondent has participated in counselling aimed to address any domestic violence issues. 19 . In terms of, in particular, S.S.’s mental health and counselling, the evidence reflects that she has struggled with mental health issues such as anxiety, depression and possible PTSD for many years. At K.S.C.S. ’s birth she confirmed to social workers that she continued to struggle with her mental health and was not actively receiving support.

During the initial six months of protection for K.S.C.S. neither parent followed through with their required counselling services as part of the case plan. Further, neither respondent has, since then, engaged in counselling and both of their files with Mental Health have been closed due to non- attendance. In short, no progress has been made with respect to that aspect of the plan. 20 . The respondents have largely chosen not to participate in Parent Aid services, which they have known to be part of the various case plans throughout.

Only one (1) parent aid was actually able to be completed, although some very limited parent aid education was conducted, even during the limited number of supervised visits and on such topics as healthy snacks for the child. 21 . In terms of drug use, the evidence supports that, sadly, both respondents have continued to struggle with drug use throughout their entire involvement with the Minister and primarily with respect to methamphetamines and opiates. 22 . Unfortunately, at birth, K.S.C.S. exhibited drug withdrawal symptoms and spent time in the NICU.

K.S.C.S. scored high on his Neonatal Abstinence Scores (NAS), which scores babies for drug withdrawal symptoms. He tested positive for methamphetamines, amphetamines and hydromorphone. 23 . S.S. confirmed to social worders that she was using illicit drugs while pregnant but also claimed she was in a methadone program. S.W. has confirmed to social workers he had a prescription for dilaudidin due to his knee, admitted to using meth in the past and expressed willingness to engage in the methadone program. 24 .

In terms of drug testing, the evidence before me establishes that both respondents have rather continuously, for the period of December2020 through to the Summer of 2022, tested positive for the presence of illicit (and other) drugs such as methamphetamine, amphetamine, hydromorphone, methadone, and cannabis.

25 . While both respondents connected for a period with the methadone program, they confirmed that they were taking methadone along with illegal and non-prescription drugs. 26 . At the PPC on December 1, 2021, both respondents agreed to participate in the detox program. It was understood that they would self-refer. On February27, 2022 they informed the Department that they would be going to detox within 2-3 weeks. In May 2022 they indicated that they were on the waiting list. To date neither respondent has attended detox. 28.

At the PPC in May 2022 both Respondents admitted using and having dependency on illicit drugs. S.S. acknowledged that she was trying to wean herself off them and that it was a long-time habit for her. S.W. said that he was using opiates and methamphetamine and that while methadone had worked, cost and transportation were issues that interfered with him continuing in the program. To date neither respondent has attended detox and neither are currently participating in the methadone program. 29. Between August and November 2022, drug screens were requested on 12 different occasions from the respondents.

According to drug nurse Faye Ruff and personal support worker Jackie Metherall the respondents have avoided these efforts. The respondents either did not provide a sufficient sample; did not open their door to the drug nurse; or outright refused to participate. 30. Last but not least, the evidence supports that the respondents have continued to struggle for an income. In particular, S.S. has not made any progress in even receiving social assistance of late according to social worker Arsenault.

S.W. has been, for a number of years, in receipt of an annual stipend left to him by his mother after her death which paid him approximately $2,000 per month. He also testified that those payments recently came to an end. He did confirm to working odd jobs when able. V. K.S.C.S. 31. The focus of this Court’s deliberations is of course on young K.S.C.S.. He is approximately two years old and has been living in foster care since birth. 32. K.S.C.S. was born premature at Upper River Valley Hospital at 38 weeks.

He was immediately transferred to the DECH in Fredericton and remained at the NICU for approximately 20 days due to his neonatal abstinence syndrome. 33. The foster mother D.F. described the slow progress that K.S.C.S. has made after a rather challenging birth and the weeks following as he endured drug withdrawals. While he has not hit his developmental milestones as of yet, he is improving. He experiences some speech delays and motor skill delays. D.F. described K.S.C.S. as generally healthy but that he does tend to pick up many viruses and struggles with his lungs.

The child recently had a CT scan due to 2 reported seizures. 34. K.S.C.S. is said to have a close bond to a little girl in the same foster home, and with Ms. Ferreira’s 14-year-old daughter. He is able to make friends at kindergarten and is happy and active. 35. K.S.C.S. is followed by the children’s Neonatal Rehab Program at the D.E.C.H.; pediatrician Dr. Mark Messenger; and family doctor Dr. Ramus. He recently started attending daycare on a fulltime basis near his foster home in Lakeville Corner. 36.

The Children’s Neonatal Rehab Program team reported the following findings pertaining to K.S.C.S. as of June, 2022: “Receptive and expressive communication skills at 18-21 month level, cognitive fine motor and play skills at 15-18 months level and age appropriate imitation skills.” (Exhibit A to Janice Arsenault affidavit of November 18, 2022) 37. Dr. Mark Messenger diagnosed K.S.C.S. on July 28, 2022 with “otitis media with effusions, asthma, probable adeno tonsillar hypertrophy and transient loss of consciousness.” (Appendix B to J. Arsenault affidavit of Nov. 18, 2022) 38.

K.S.C.S. has been referred to an Ear Nose and Throat Specialist due to being observed using his mouth to breathe, being out of breath easily and snoring when sleeping.

39. While they were informed in advance, the respondents seldomly attended K.S.C.S. ’s medical appointments Social workers have updated them as to the child’s diagnosis and progress throughout. S.W. 40. S.W. testified and was subject to cross-examination. He presented as understandably distraught over the possible loss of his son. The Court has a lot of sympathy for his predicament although, as I advised him, I must keep foremost in mind the best interest of K.S.C.S. 41. During his testimony, S.W. acknowledged the existence of many of the Crown’s concerns.

He acknowledged having a long history with illicit drugs and this continues with his reliance on dilaudid and meth. He denies being “addicted’” but admitted to a “dependency” (on dilaudid/hydromorphone). He wants to get back on methadone but this has not happened for any number of reasons. 42. S.W. clearly does not trust the Minister and its representatives. He also laid much of the blame for his current situation on his (recently) former partner S.S.. He confirmed that they are no longer together and he says that will not change.

While he accepted the presence of domestic violence in his relationship with S.S. at times, he spoke to himself most often being the victim. 43. S.W. testified that he “needs that little boy” and that K.S.C.S. “is all I have”. He just wants to be given “a chance” to parent the child. To be more specific S.W. says he needs “more support” from the Minister, such as income assistance, methadone program assistance, NB housing and the return of his child. He is convinced with that support he can offer K.S.C.S. the best opportunity to excel in his life. VI. Issues 44. (

a) Is it in the best interests of K.S.C.S. that a Guardianship Order be issued transferring custody, care and control of the child to the Minister on a permanent basis? (

b) Is it in the best interests of the child that a right to access be reserved for the child to have contact with the respondents? VII. Law and Analysis 45. The Minister seeks guardianship of K.S.C.S. 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. 46.

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. 47. 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. 48. 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 ) .

49. 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 ).

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 to whom access to the child is granted and, where appropriate, each sibling of the child and, where appropriate, each grandparent of the child; (

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 the child 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 through the achievement of his full potential according to his individual capacity; and (

g) the child’s cultural and religious heritage; 51. Section 53(2) of the Act requires the Court to give primary consideration, and above all others, to the “best interests of the child”. 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 interests of the child.

52. The best interests of the child are paramount to all other considerations including the family unit. 53. 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 interestsof 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) 54. 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. (Emphasis Added) 55.

As the Minister noted in its pre-hearing brief, the

preamble to the Act recognizes the concept of minimal state interventionin the lives of 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 a parental rights statute (see Winnipeg Child and Family Services Central Area v. W.(K.L.), 2000 SCC 48 , [2000] 2 S.C.R.519). 56. In support of its application, the Minister indicates concerns over the “security and development” of K.S.C.S. being at riskwhile in the care of the respondents. The Minister grounds its application by reference to subsections 31(1)(c), (

d) and (

f) of the Act. To paraphrase: 31(1) (. . .) (

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;

(

d) the child is in danger because he is in the care of a person who’s conduct endangers the life, health, or wellbeing of the child; (…) (

f) the child is in danger because he would be living in a situation where there is domestic violence. VIII. Best Interest Factors 57. 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. The mental, emotional and physical health of the child and his need for appropriate care or treatment, or both: 58.

Despite more than two years of the Department’s involvement, the respondents have simply been unable or unwilling to follow through with case plan objectives and address the Minister’s concerns in order to reunify with the child. Keep in mind that both parents had relatively recently experienced the loss of K.E.J.S through an earlier guardianship and they would be completely aware of the potential consequences in failing to engage with the Minister in respect to K.S.C.S. 59. The concerns that existed at the taking of the protective care in December 2020 continue to remain unaddressed and, to repeat, include:

a) Chronic drug use evidenced by positive drug screens, lack of effort to address drug use and most recently denial to participate in drug screens;

b) Non- participation in counselling and mental health services and files being closed;

c) Non-participation in parent aid;

d) Poor participation in supervised visits with concerns of lack of attendance and engagement as well as being under the influence during visits;

e) Lack of addressing concerns of historical domestic violence;

f) Home not being appropriate for child due to drugs, drug paraphernalia, weapons, individuals associated with drug use and criminal lifestyle observed in the home and the home being in deplorable conditions;

g) Longstanding history with the Minister with other children and historic lack of engagement in services. 60. Keeping K.S.C.S. ’s interest foremost in my mind, I can not reasonably accept that either of the respondents are able to safely care for K.S.C.S. on a long-term and consistent basis due to these concerns. 61. The evidence confirms that K.S.C.S. has some challenging health issues arising from his premature birth and due to the mothers drug use. The Minister has ensured the childs health needs are being addressed.

I accept that K.S.C.S. requires safety, stability and routine in his life, something that the respondents are unable to provide at this time. The views and preferences of the child, where such views and preferences can be reasonably ascertained: 62. The child is very young and the Court does not have any reliable evidence in this regard.

The Effect Upon the Child of any Disruption in the Child’s Sense of Continuity: 63. Stability and certainty are primary considerations in determining a child’s best interests, as seen in Carey v. Hanlon, 2007CarswellAlta 1629 (C.A.) 64. K.S.C.S. has been in the Minister’s care since birth ([...], 2020) and has been in the same foster home since his releasefrom the NICU at the D.E.C.H.. 65. The evidence reflects that the respondents circumstances are not currently conducive to providing stability or safeparenting for young K.S.C.S. . 66. Ms.

Florina, on behalf of the Minister, referred to a recent Decision of this Court in MSD v. S.B. and J.B. (2022 NBQB 111, 2022 NBQB111). In S.B. and J.B, I addressed similar illicit drug use issues by parents at paragraph 126 to 130 and which Iwish to adopt here: 126. I remain very concerned that by refusing to even acknowledge her challenges and taking responsibility over them S.B. is in nobetter position to defeat them.

The Court is being asked to essentially return the children to her in the hopes that all will go well.Alternatively, the Court could grant additional time to again allow her to prove she has made some significant turn in her life. In myview, all of this simply exposes the children to further risks of instability and insecurity. 127. In a recent decision in The Minister of Social Development v. D.F. and M.M., 2022 NBQB 039, my colleague, Justice Colford,addresses illicit drug use, including methamphetamine use, of parents in the context of a guardianship trial.

In granting the guardianship,Justice Colford writes at paragraphs 126 and 130: ▪ 126. The result is that D.F. has not meaningfully participated in the interventions necessary to address very significant longstandingsubstance abuse. At this point, D.F. really has no coping skills or tools to deal with her dependency. In my view as long asmethamphetamine drug use continues, it remains a significant risk of harm for B.F.M. now and in the foreseeable future. ▪ (. . .) ▪ 130. I have no doubt D.F. loves her son. Her addiction in no way detracts from that love.

However, the reality is that illicitdrug use (particularly crystal meth) is contraindicated in parenting. Methamphetamines control and destroy people's lives. Theytake over a parent's ability to prioritize their children and make choices that are in their best interests. This Court has made thatfinding on more than one occasion (see M.S.D. v. B.A., W.P. and V.H., 2021 NBQB 254, and M.S.D. v. C.G. and R.K., Jan. 19, 2022(unreported). 128. Furthermore, Justice Godbout in M.S.D. v. B.A., W.P. and V.H., 2021 NBQB 254, captures similar concerns as before me, atparagraph 129: 129.

The most pressing issue, however, is the parents' continued use of illicit drugs, this despite the fact that they have beenwarned such could result in an order for guardianship and the permanent loss of their children. They claim to have reduced theirusage, but consistently refused to participate in urine drug screens that may have supported this assertion. In moments of distress, theyhave both admitted to social workers that they have been unable to conquer their addictions on their own, yet they persist in decliningaddictions counselling and fail to follow-through with active treatment.

And so, the Court is faced with two (2) parents that continue touse these dangerous drugs. The parents are asking the Court to return the children to them in the blind hope that such willmotivate their sobriety. This is a purely selfish request, and one that in no way serves the children's best interests. Children arenot trial balloons. 129. I cannot find that the respondents are in any current shape, despite their sincere wish, to care for the children. I have no reasonablebasis to determine that they will be in a position to do so within a reasonable period time.

Both respondents have largely chosen not tomeaningfully engage with the Minister's reasonable criteria to achieve some reunification with their four children.

130. As stated above, my task is to evaluate all of this as at the time of the hearing. I have to ask what has really changed? In myview, not nearly enough and not for a sufficient period of time. Neither of the parents have demonstrated to this Court that theywill be able to reliably and safely parent at this time. Neither has taken accountability and rectified the concerns. I am satisfiedthe Minister has established that they will not likely be able to do so. It is a matter of probability, not possibility, that I mustconcern myself.

Unfortunately, their priority over the long term has not been the four children. (Emphasis Added) 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: 67. The Court accepts that both parents would love K.S.C.S. Certainly S.W. has made that fact very clear to this Court.However, love is not enough to ensure the child’s safety and development. In New Brunswick (Minister of Social Development) v.

G.B.,2012 NBCA 62 , [2012] NBJ No. 263(NBCA), Justice Quigg states: Although love and affection are important criteria to consider when assessing the best interests of the child, they are not to supercede theother factors enumerated in the definition of best interests of the child. In this case, the mother’s inability to put her child first in he life,her lack of capacity to patent and the instability of her living accommodations undermine the mutual love and affection that exists.

The Merits of Any plan proposed by the Minister under which he would be caring for the child, in comparison with the merits ofthe child returning to or remaining with his parents: 68. The Minister’s plan is superior to any presented by the respondents. If a Guardianship Order is granted, the Minister’s planis for K.S.C.S. to be adopted. The evidence of the adoption social worker suggests this is a likely outcome. Until an adoption occurs,K.S.C.S. would continue to reside in the foster home he is familiar with.

The Minister would continue to provide the child with all healthservices as are necessary to meet his particular needs and development. He would continue kindergarten in the Lakeville Corner area. 69. At no point has S.S. or S.W. put forward any plan which would permit the safe placement of the child in their care, eitherjointly or individually, and they have not offered any evidence to satisfy me that the identified concerns have been addressed. 70. Before me, S.W. has pleaded to be given another chance and thus more time.

K.S.C.S. has been in the continuous care ofthe Minister for almost 24 months, the entirety of his life, and which happens to be the maximum time allowed under the legislationwithout either returning the child or obtaining a guardianship Order. 71. The New Brunswick Court of Appeal in New Brunswick (Minister of Family and Community Services) v. B.(S.), 2008NBCA 16 (NBCA), commented upon this 24-month maximum time period allowed under the Act: 12. Having undertaken a contextual analysis of s. 55(2), it remains to be determined whether the clear wording of the legislation isconsistent with the purpose of the Act.

No one questions that the ultimate legislative objective is to see that court orders are issued in thebest interests of the child, as that term is defined in s. 1 of the Act. Of relevance to the interpretative issue at hand is definition (c), whichstates that, in assessing the best interests of the child, the judge must take into account “the effect upon the child of any disruption of thechild’s sense of continuity”.

It is understandable that the Legislature would want to minimize the negative impact of having achild remain in the custody of the Minister for years on end and then having custody revert to the parent(s). After the passage ofseveral years, it would be a traumatic event for any child to be taken from his or her primary caregivers and returned to aparent with whom that child had little or no contact during the formative years. In effect, the Act is seeking to tell non-custodialparents that there is a time limit in which to demonstrate their ability to meet their child’s mental, emotional and physical needs.

Courts must respect the Legislature’s policy decision, even though the choice between granting permanent custody to the Minister andreturning the child to his or her parent(

s) may be a difficult one. (Emphasis added) 72. In the circumstance before me, given the significant passage of time and the strict legislative timelines, the dispositionaloptions before this Court are stark. I can choose to grant the guardianship order and thereby sever all parental ties and obligations

between K.S.C.S. and his parents, or I can return the child to the care of one or both of his parents, perhaps with some supervisory conditions to allow the Minister to monitor the reunification. Obviously the lack of any sustained progress by either parent weighs heavily in my decision. 73. DeWare, J. (as she then was) summed it up this way at paragraph 40 of Minister of Social Development v. J.D.R., K.W. , 2017 NBQB 133 : Given the provisions of Section 55(2) of the Act , this Court must either return A.W. to the care of J.D.R. or grant the guardianship order. There are no other alternatives.

The Court must make this decision based upon the evidence tendered at trial and not based upon what might take place on a go forward basis. The jurisprudence is clear that the parent is provided 24 months to deal with their particular issues in order to regain custody of their children. The Court must assess the situation at the time of the trial and then determine what option responds to the children's best interests -- a return to the parent or the issuance of the guardianship order. (Emphasis added) (See also MSD v. J.L.T. and C.L.,Jr . (Court File No.

FDM-516-2019) at paragraphs 82 to 86) The need to provide a secure environment that would permit the child to become a useful and productive member of society through the achievement of their full potential according to their individual capacity: 74. I find that the respondents are both either unable or unwilling to provide K.S.C.S. with a secure environment due primarily to substantiated and long standing concerns regarding their drug use, and mental health.

There are other concerns of course, including their questionable housing and seeming lack of financial resources, not to mention some past domestic violence. 75. Simply put, neither respondent has yet to demonstrate a serious commitment to any plan to deal with concerns of drug use, mental health, domestic violence, and housing issues. The respondents have failed to meaningfully engage in any of the case plan activities aimed to help reunify them with the child. These expectations were well known to them.

The Minister had made it plain to both parents as early as January 2022 that guardianship of K.S.C.S. was being contemplated. 76. The respondents consented to each Custody Order made in this Court. While this is not at all conclusive, it certainly suggests some acknowledgement by them of their precarious circumstances. 77. The Minister has been clear as to the concerns and has repeatedly encouraged the respondents to seek counselling and other services through different agencies.

The Minister has offered support and assistance in accessing such services and continuously encouraged respondents to engage, all to little or no avail. The parents have continuously tested positive for the presence of illicit drugs. 78. Neither respondent has demonstrated a serious commitment to addressing these issues, not only with respect to K.S.C.S. but even historically, and leading up to his birth. 79. In my (unreported) decision of Minister of Families and Children and S.S., S.L., and S.W.

Court Filer Number FDW-28- 2017, involving these same parties and their child K.E.J.S, at paragraph 70, I determined: The evidence does not allow me to find that a mother can provide secure environment to allow K.S. to reach his greatest potential at this time or in the reasonably foreseeable future. As at the time of this trial, A.S. cannot assure me that she has either dealt with her drug addiction or has stabilized her mental health challenges. 80.

Past parenting evidence, while not determinative, is still important and should be considered by a Court (See New Brunswick (Minister of Health and Community Services) v. M.K. and A.R., [1998] 198 N.B.J. (2d) 201). It is not lost on this Court that the respondents were previously unsuccessful in the context of a guardianship over another young child and not that long ago.

81. In K.L.M. and D.J.M. v. Minister of Community Services, 2007 NSCA 100, at paragraphs 27 and 28, the Court found that: 27. The judge properly related past parenting conduct to future care of the child.

He quoted the Eakin report on this issue: In cases such as this, where the child in question was apprehended at birth, a comprehensive and valid appraisal of parental capacity mustinclude not only observations of the parents’ current interactions with this child, but also a careful consideration of their patterns ofparenting in the past, and the functioning of the other children for whom they have provided primary care.

In families where therehave been multiple child protection concerns identified in the past, the real question is whether the parents have been able to takeaccountability for past areas of difficulty, and have been able to rectify these issues, and thereby eliminate these risks, by makingsome decisive, proactive changes. Typically this is achieved through the productive use of services, including those provided by theagency, and other resources which the parents may have sought out on their own initiative. (pp. 66 - 67) 28.

The evidence of the parents’ “past” parenting practices was highly relevant where, as here, the current child welfareproceeding overlapped with the former. . . . (Emphasis added) (See also New Brunswick (Minister of Social Development) v. M.(A.M.), 2016, NBQB 91) 82. This Court also stated previously in Minister of Social Development vs. C.J. and K.A. 2021 NBQB 294: 195. Being an appropriate parent is much more than simply “loving” your child. There is a serious responsibility as a parent toensure your child is properly taken care of and to provide for your child.

It can take tremendous sacrifice on the part of the parent. Itstarts with having the mindset of what is best, not for the parent, but for the child. Being able to parent is not to be judged to a standardof perfection, but it must be exercised to some reasonable level of care, and sadly C.J. has not been able to show herself capable of doingso, at least for an extended period of time, including at present. Ensuring the child has even food, shelter, and receives appropriatemedical care are just a few of the most basic of parental obligations.

The evidence establishes the mother has not been able to even meetthese obligations at times. I am convinced that she will not be able to do so if the child is returned at present. 196. It is not a question of fault. It is a question of fact and reality. The reality is that, much like in many (not all) cases theCourt has before it in guardianship cases, we are dealing here with the sad socio-economic reality and underlying root causes of poverty,alcohol, drugs and mental health. These hallmarks represent a vicious cycle of dependency.

It is a cycle the Court sincerely hopes thatC.J. can permanently extricate herself in time. The children’s cultural and religious heritage: 83. This factor was not discussed in evidence or in argument by the parties. IX. Conclusion 84. In conclusion and in all of the sad circumstances, I will grant the Minister a guardianship order for the child, K.S.C.S. . Ifind such an Order to be in K.S.C.S. ’s best interests. X. Access 85.

As I understand the state of the law, the reservation of access for a child to his 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 this child’s prospects for a successful sibling adoption. XI. Order

86. In accord with the foregoing, pursuant to section 56(1) of the Act , a guardianship order is granted to the Minister transferring on a permanent basis the guardianship of the child K.S.C.S. ([...], 2020) , including custody, care and control and of all parental rights and responsibilities with respect to the child. The child shall not retain any express rights of access to either of the respondents but rather, any access shall be determined by the Minister of Social Development consistent only with the child’s best interests. ________________________ Richard G. Petrie J.C.K.B.