IN THE MATTER of a hearing under THE CHILD v. FAMILY SERVICES ACT, 2014 SKPC 29

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 029 Date: February 11, 2014 Location: Moose Jaw _____________________________________________________________________________ Between: IN THE MATTER of a hearing under THE CHILD AND FAMILY SERVICES ACT AND IN THE MATTER OF S.S., born [...], 2010 Appearing: Jordan Hogeweide For the Ministry of Social Services Unrepresented For the parents (not in attendance) The parents and child are identified by initials in order to protect their identities. JUDGMENT M.

GORDON, J [ 1 ] Counsel for the Ministry submitted that neither parent was prepared to parent this child, and therefore it is in the best interests of this child for the Court to make a permanent order committing this child to the care of the Ministry pursuant to s. 37(2) of The Child and Family Services Act . For two years the Ministry has attempted to work with the mother of this child in particular and contact family members who may be supportive or come forward as persons of sufficient interest.

However this has not been the case and the Ministry was left making this request for a permanent order as the best way for this child to have a good life.

THE LAW [ 2 ] Various provisions of The Child and Family Services Act govern the proceedings and they are as follows. [ 3 ]

Section 37 of the Act states: 37(1) Subject to subsection (2), if the court determines that a child is in need of protection, the court shall make an order that the child: (

a) remain with, be returned to or be placed in the custody of his or her parent; (

b) be placed in the custody of a person having a sufficient interest in the child; or (

c) remain in or be placed in the custody of the minister for a temporary period not exceeding six months.

(2) If, in the opinion of the court, none of the orders described in subsection (1) is appropriate, the court shall make an order permanently committing the child to the minister.

(3) Notwithstanding subsections (1) and (2), the court may, if it is of the view that: (

a) a child is in need of protection; and (

b) by reason of the age of the child or other circumstances, it is unlikely that an adoption plan would be made if the child were permanently committed to the minister; order that the child be placed in the custody of the minister until the child attains the age of 18 years.

(4) In making an order pursuant to subsection (1), (2) or (3), the court: (

a) shall consider the best interests of the child; (

b) may consider the recommendations of the officer mentioned in subsection 36(2); and (

c) may consider the recommendations of a chief, a chief’s designate or an agency that appears in court pursuant to subsection (11).

(5) In making an order pursuant to subsection (1) or (3), the court may: (

a) impose any terms and conditions that the court considers appropriate; and (

b) include in the order a provision respecting access to the child.

(6) If the court, in making an order pursuant to clause (1)(

a) or (b), orders supervision of the child by the minister as a term or condition of the order, the period of supervision shall not exceed one year.

(7) In making an order pursuant to clause (1)(b), the court may direct that the order shall terminate after the expiry of a period, not exceeding one year, specified in the order.

(8) Any order made pursuant to clause (1)(

a) or (

b) or

section 16 that is inconsistent with an existing custody order of a superior court shall be considered an interim order that is subject to a further order of a superior court.

(9) The court shall provide to each party to the proceedings a written

summary of its reasons for determining that the child is in need of protection.

(10) Notwithstanding subsection 33(1), where an officer intends to apply to the court for an order pursuant to subsection (2) or (3) and the child who is the subject of the proposed hearing is a status Indian whose name is included in a Band List or who is entitled to have his or her name included in a Band List, the officer shall give 60 days’ notice of the application for the protection hearing to the child’s band or the agency, if any, that is providing family services to members of the child’s band.

(11) Where a band or an agency has received a notice pursuant to subsection (10): (

a) the chief of the band, the chief’s designate or the agency may appear in court to make recommendations with respect to the application; and (

b) where the chief, the chief’s designate or the agency appears in court pursuant to clause (a), the band or the agency is a party to the proceedings.

[ 4 ]

Section 4 of the Act states: 4 Where a person or court is required by any provision of this Act other than subsection 49(2) to determine the best interests of a child, the person or court shall take into account: (

a) the quality of the relationships that the child has with any person who may have a close connection with the child; (

b) the child’s physical, mental and emotional level of development; (

c) the child’s emotional, cultural, physical, psychological and spiritual needs; (

d) the home environment proposed to be provided for the child; (

e) the plans for the care of the child of the person to whom it is proposed that the custody of the child be entrusted; (

f) where practicable, the child’s wishes, having regard to the age and level of the child’s development; (

g) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity; and (

h) the effect on the child of a delay in making a decision. [ 5 ]

Section 3 of the Act states: 3 The purpose of this Act is to promote the well-being of children in need of protection by offering, wherever appropriate, services that are designed to maintain, support and preserve the family in the least disruptive manner. [ 6 ]

Section 11 of the Act reads: 11 A child is in need of protection where: (

a) as a result of action or omission by the child’s parent: (

i) the child has suffered or is likely to suffer physical harm; (ii) the child has suffered or is likely to suffer a serious impairment of mental or emotional functioning; (iii) the child has been or is likely to be exposed to harmful interaction for a sexual purpose, including involvement in prostitution and including conduct that may amount to an offence within the meaning of the Criminal Code ; (iv) medical, surgical or other recognized remedial care or treatment that is considered essential by a duly qualified medical practitioner has not been or is not likely to be provided to the child; (

v) the child’s development is likely to be seriously impaired by failure to remedy a mental, emotional or developmental condition; or (vi) the child has been exposed to domestic violence or severe domestic disharmony that is likely to result in physical or emotional harm to the child; (

b) there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur; ... [ 7 ] The first question I need to answer is whether the child, S.S. is in need of protection. The second question is, if so, what is the appropriate order under s. 37? ANALYSIS

[8] I am satisfied that the Ministry has proved on a balance of probabilities that the child S.S. was a child in need of protection inNovember 2011 based on this initial incident in September 2011 when the young child, just over a year old, was left alone crying anddirty. Initially the maternal grandmother cared for the child, but due to her personal situation and increasing arguments with herdaughter with respect to her lifestyle, the grandmother no longer was able to care for the child. I find that the child was in need ofprotection at the time of the initial apprehension as there was no parent willing or able to provide for the child pursuant to s. 11(

b) of theAct. [9] There have been times when the mother agreed to reconnect back with Mental Health Services only to discontinue anyfollow-up. The worker described the mother’s struggle with mental health and her reluctance to access ongoing services and support. The mother has had short-term stays at the psychiatric unit in the Moose Jaw Hospital as well as Wakamow Detox Centre. Unfortunately the mother relapses on drugs and alcohol. The mother has been diagnosed with ADD, PTSD and ODD. The mother wasnot taking her medication.

The mother had also been diagnosed with anorexia nervosa, binge/purge subtype and still struggles with theseproblems. [10] It is also clear that very little has changed from the time of the initial apprehension of the child in terms of either the mother orfather and their ability or interest to care for this child. There have been some efforts by the mother in particular, but these efforts havenot been sustained and are sporadic in nature. Neither parent, it is noted again, attended these proceedings. The father gave noindication that he was going to come as he is now in Ontario pursuing his own education.

The mother was also aware of theproceedings, offered bus fare or financial assistance to travel to Moose Jaw and she did not do so. As well the mother has hadopportunity and did not engage legal counsel. Therefore under all of the circumstances and based on the evidence it is clear that thischild remains in need of protection. [11] The second question is what kind of order should be issued under s. 37 of the Act? That, in my view, is the more serious anddifficult question even though the hearing is uncontested. The Ministry is asking for a permanent order. The child has been in care for alittle over two years.

It is agreed that the proper procedure and analysis to be followed is set out in the case of Minister of SocialServices v. E.K.S., D.W. and C.S. (1996) (SK KB), 146 Sask. R. 46. Mr. Justice McIntyre analysed the situation inthe following manner. At paragraph 44 in E.K.S. (supra) the judge stated as follows: Step 1: determine if the children are in need of protection, and if so Step 2: determine the appropriate order under s. 37 in accordance with the principles set out in E.K.S. Approach this task as follows: (a)(

i) consider the best interests of the child within the meaning of s. 4 of the Act; (ii) may consider the recommendations of the officer. Note: both of these considerations must take place in the context of the objective of the Act as enumerated in s. 3. (

b) determine whether any of the options in s. 37(1) are appropriate. The choices are: (

i) return the children to the parents, with conditions attached if need be, including supervision by the Minister for up to one year; (ii) place the child in the custody of a person having sufficient interest; or (iii) commit the child to the custody of the Minister for up to six months. (

c) if none of the options in s. 37(1) is appropriate, then order, pursuant to s. 37(2), the children to be permanently committed to theMinister; or (

d) pursuant to s. 37(3), if it is unlikely an adoption plan would be made for the child if permanently committed to the Minister, thenorder the child placed in the custody of the Minister until the child is 18 years old. [12] In E.K.S., McIntyre J. sets out the principles as well to be followed by a Court when determining whether any of the optionsavailable under s. 37(1) of the Act are appropriate: [45] The welfare of the child is the paramount (but not the sole) consideration. The wishes of the parent must be given independentsubordinate weight. The weight will depend on the circumstances in each case. (R. v.

Saskatchewan (Minister of Social Services), (SK KB), [1974] 2 W.W.R. 388 at 393 (Sask. Q.B.))

[46] Section 37(4)(

a) does not declare that only the best interests of the child shall be considered. The implication is that the court maybe mindful of other matters. As well, the list in s. 4 is not exhaustive in determining the best interests of the child. (Saskatchewan(Minister of Social Services) v. R.G. (1990), (SK KB), 88 Sask. R. 262 (U.F.C.)) [47] Any determination made must be in the context of the objective of the Act, set out in s. 3. (C.(M.A.) v. Saskatchewan (Minister ofSocialServices) (1993), (SK KB), 46 R.F.L. (3d) 174 (Sask.

Q.B.)) [48] The court may consider the recommendation of the officer (representative of the Department) but is not bound thereby. [49] The court, having determined the child to be in need of protection, has determined that the level of parenting care is below theminimum tolerated by society.

Therefore, in determining whether an order under ss. 37(1) is appropriate, including conditions whichcould be attached, the court must be satisfied either: (a)The parent or parents have altered his or her ways such that the circumstances which gave rise to the determination that the child wasin need of protection no longer exist, or (b)The court is satisfied that there is a realistic plan or a reasonable basis upon which to conclude that the necessary changes can occurwithin a reasonable time whereby the children can be safely returned to the care of their parent or parents. (Saskatchewan (Minister ofSocial Services) v.

A.J.and C.J. (1987), (SK CA), 58 Sask. R. 246 (Sask. C.A.); Saskatchewan (Minister of SocialServices) v. M.L. and M.L.M. (1988), (SK KB), 71 Sask. R. 110 (Sask. Q.B.); C.(M.A.) v. Saskatchewan (Minister ofSocial Services), supra; Saskatchewan (Minister of Social Services) v. R.G., supra.) [50] The court must look at various factors including (without meaning to be exhaustive of the possibilities) any changes incircumstance or conduct of the parent that has occurred or is proposed, any plan of corrective action that is being advanced, the nature ofany resources suggested and the time frames which may be involved.

The options in ss. 37(1) are premised upon a reasonable prospect ofchange, within a reasonable length of time and a reasonable use of resources if needed. [51] In making an assessment as to whether an order under ss. 37(1) is appropriate the court must do so on the basis of the evidencebefore it. As noted by the Court of Appeal in Saskatchewan (Minister of Social Services) v. A.J. and C.J., supra, at 251: However, the following is self-evident.

Where, as here, children have been placed into the temporary custody of the Minister, and theparents wish to have the children returned to them, they must make efforts to improve or remove the conditions or circumstances in thehome which have resulted in the children being taken from the parents. . . [52] Counsel for the department said “good intentions are not sufficient” and relied upon the following observations of the ManitobaCourt of Appeal in Children's Aid Society of Winnipeg v. Redwood (1980), (MB CA), 19 R.F.L. (2d) 232 at 234: . . .

The test is: What is in the best interests of these children, and not whether the mother has merely seen the light and is now preparedto be a good mother, while in the past, on her own admission, she was not such. The test is whether the mother has in fact turned a newleaf and whether she is nowable to give to the children the care which is in their best interests. Good intentions are not sufficient.

As thechief justice of this court, speaking in an unanimous decision in another case, stated so ably: “to give this mother another chance is togive these children one less chance in life.” [53] The foregoing comments must be applied with caution. I agree that good intentions by themselves are not sufficient. The questionin every instance must be whether, on all of the evidence before the court, the court is satisfied sufficient change can occur within thecontext of an order under ss. 37(1) such that it is in the best interests of the child to make such an order.

Given the objective of the Act asset out in s. 3, a permanent committal does not ipso facto follow justbecause the parent has not yet turned that new leaf. ... [58] The question so far as the options within ss. 37(1) are concerned, is whether there is a reasonable prospect of change, within areasonable time, and with such resources as may be reasonably available. [59] I must say that the minimal steps taken to date by E.K.S. and her failure to aggressively pursue the steps which she agreed to take inNovember, 1994, weigh heavily against her.

One would expect a parent facing child protection proceedings to pursue all reasonableoptions prior to hearing and at the hearing come forward with a concrete and specific plan of action if he or she is promising to change. ... [49] The court, having determined the child to be in need of protection, has determined that the level of parenting care is below theminimum tolerated by society. Therefore, in determining whether an order under ss. 37(1) is appropriate, including conditions whichcould be attached, the court must be satisfied either: (

a) The parent or parents have altered his or her ways such that the circumstances which gave rise to the determination that the child wasin need of protection no longer exist, or (b)The court is satisfied that there is a realistic plan or a reasonable basis upon which to conclude that the necessary changes can occurwithin a reasonable time whereby the children can be safely returned to the care of their parent or parents.

[50] The court must look at various factors including (without meaning to be exhaustive of the possibilities) any changes in circumstance or conduct of the parent that has occurred or is proposed, any plan of corrective action that is being advanced, the nature of any resources suggested and the time frames which may be involved.

The options in ss. 37(1) are premised upon a reasonable prospect of change, within a reasonable length of time and a reasonable use of resources if needed. [ 13 ] Regarding the parents, and here I will refer mainly to the mother, as the father has had only minimal contact with the child but the mother has exhibited sporadic periods of trying to improve her situation so that the child could be returned to her. I think sporadic, which is the word used by the worker, is the apt description based on what I have heard.

The evidence indicates that the mother cannot sustain or exhibit any type of consistent behaviour with respect to visitation or to looking after her own emotional, physical and mental health. I heard that she was allowed visits and attended four but missed 24 visits over the period of four months. In addition, the mother would check herself into the Mental Health Unit at the hospital and then discharge herself a couple of days later. There have been five separate Family Service agreements or contracts entered into with the mother. The terms are most reasonable and very clear.

I sometimes worry or have concerns about the number or nature of the terms put in such agreements, but I must say the terms in these agreements as well as in the two consent orders are clear and reasonable. There was little evidence to show that she had made any progress on any of these requirements. [ 14 ] The evidence was that the child was born at full term without any medical problems. The child is developing normally and is healthy, both physically and mentally. He is progressing as one would expect.

The mother was able to parent for approximately the first year of the child’s life but things certainly deteriorated since that time. There was a period when the grandmother had care of the child and it was hoped that the mother would be able to resume care of her child. However the situation deteriorated in terms of the mother’s capability and this was one of the reasons that the grandmother felt she could no longer have the child.

She and her daughter have significant disagreements about appropriate parenting and care of the child. [ 15 ] I am of the view that it is in the best interests of the child that he be permanently committed to the Minister under s. 37. The evidence is uncontradicted and I am prepared to accept it. In determining whether any of the options in s. 37 are appropriate, the question is whether there is a reasonable prospect of change within a reasonable length of time and a reasonable use of resources on behalf of one or both of the parents.

In the within case, with the lack of consistent commitment and progress by the parents, and in particular the mother as the one that showed some interest, and the fact that neither parent has appeared at this hearing, I am left with no other choice. I must say that in accepting the evidence led by the Ministry, I was impressed with the evidence of Ms. Ansley, the worker. She did not try to elaborate or embellish the evidence nor was she defensive of the Ministry’s position.

She simply stated what had transpired with respect to the efforts the Ministry had extended to this family and in particular the mother and this child over the past few years. [ 16 ] I want to assure both parents that this decision is not made lightly and is not based on a conclusion that they do not love their child. That is not the basis for this decision and I am prepared to accept that both parents do love their child. The question in law under the Act is what is best for this child at this time. [ 17 ] The evidence is that the child is doing very well in a foster home.

The child has been there for some time and views the foster mother as his main caregiver. He also knows he has another mother and contact with the maternal grandmother is being maintained. The foster mother and the maternal grandmother, I am told, keep in close contact so that the family connection will be maintained. I think that is certainly an important factor in considering the best interests of this young boy. Therefore as I have said, I am prepared to make a permanent order. [ 18 ] Dated at Moose Jaw, Saskatchewan this 18 th day of February, 2014. M. Gordon, J