IN THE MATTER of a hearing under THE CHILD v. FAMILY SERVICES ACT, 2013 SKPC 94

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 094 Date: July 11, 2013 File: 2013 - 6 Location: Melfort (Carrot River) _____________________________________________________________________________ Between: IN THE MATTER of a hearing under THE CHILD AND FAMILY SERVICES ACT AND IN THE MATTER OF AN APPLICATION PURSUANT TO

SECTION 37 OF THAT ACT RESPECTING N.N., born [...], 2005 K.N., born[...], 2008 K.N., born [...], 2009 Appearing: Mr. Jonathan Bodvarson For the Nechapanuk Child and Family Services Inc. No one For the parents The children are identified by initials for the purposes of protecting their identity. JUDGMENT B.G. MORGAN , J

INTRODUCTION [1] Nechapanuk Child and Family Services Inc. (the agency) initially applied for a long term order under s. 37(3) of The Childand Family Services Act (the Act) but has amended its application to now apply for an order that the current foster parents be declared aspersons having a sufficient interest in all three children under s. 23 of the Act, and an order under s. 37(1)(

b) of the Act granting themcustody. Should the amended application be granted? [2] Pursuant to s. 31 of the Act, an Agreed Statement of Allegations and Admissions was filed at the protection hearing. Thatdocument states, among other things, that the mother of the children has passed away, and the father has acknowledged that he is unableto properly meet the needs of the children at this time and further acknowledges that he will not be able to do so in the future. That latterstatement may not always be true, but it certainly indicates the father’s present view. A subsequent affidavit of Ms.

Melita McKay, afamily worker involved with these families, confirms that each of N.N., K.N. (a male), and K.N. (a female), have been with the proposedpersons of sufficient interest since January 14, 2013, November 10, 2012 and October 25, 2009 respectively. The affidavit of the foster parents confirms that, and states as well that they intend to continue to allow the father parenting time with thechildren. [3] In the Agreed Statement of Allegations and Admissions, the history of the children’s lives supports the conclusion that eachchild is in need of protection pursuant to s. 11(

b) of the Act, in that there is no adult person who is able and willing to provide for thechildren’s needs. The children’s father has consented to a draft order under s. 37 of the Act agreeing that the children should be placed inthe custody of the Minister pursuant to s. 37(3) of the Act, and has agreed that he shall have reasonable access on reasonable notice toeach of his children. [4] The father has otherwise not participated in these proceedings. [5] The argument of Mr.

Bodvarson, on behalf of the agency, is that if the father has consented to a long term order, he has byimplication consented to the order being sought at this time by the agency. THE LAW [6] In the recent case of Re: J.P.N.C.-M., 2013 SKQB 9 , 2013 SKQB 09, [2013] S.J. No. 19, Mr. Justice Smith of theFamily Law Division reviewed the applicable law governing protection hearings. He applied the reasoning and analysis set out byMadam Justice Wilkinson in Re: V.J.C., 2009 SKQB 395, [2009] S.J. No. 592, at para. 8 of his decision.

That paragraph sets out as wellthe legislative provisions at play, and the reasoning to be used. I summarize the comments of Madam Justice Wilkinson as follows: 1. The Court is required to review the options set out in s. 37, looking firstly at whether or not the children can be returned to the parent,placed with a person of sufficient interest, or placed with the Minister for a temporary period. 2. If none of those orders are appropriate, then the Court shall make an order permanently committing the child to the Minister. The useof the word “shall”, I note, makes this step mandatory in such a case. 3.

Section 37(3) provides an exception to s. 37(2), in which the Court can place a child or children in the custody of the Minister untilthe child attains the age of 18 years, if the Court believes an adoption plan is unlikely due to the age of the child or other circumstances. The use of the word “can”, I note, makes this step discretionary in such a case. 4. The procedure to be followed by the Court in assessing a matter is outlined in Re: E.K.S. (1996), (SK KB), 146Sask. R. 46 (Q.B.) No. 5. In considering the best interest of the child, as set out in s. 37(4)(

a) of the Act, the Court is to use anindividualistic approach in order to best provide for the healthy growth, development and education for the child, all with a view toensuring the child is, upon reaching adulthood, in the best position to deal with life.

[ 7 ] Mr. Justice Smith went on to state in Re: J.P.N.C.-M., supra , that the question of whether or not a child is in need of protection is to be assessed on a balance of probabilities (see paragraphs 164-170). DECISION [ 8 ] The material filed confirms that all individuals involved in this matter, including the proposed persons of sufficient interest, are members of the R[...] Nation. Nechapanuk Child and Family Services Inc. is an aboriginal agency that represents that First Nation in the administration of the Act at R[...] Nation. [ 9 ] The affidavit of Ms.

McKay goes on to state that the intention of the agency is for the children to remain in the care of the present foster parents as long as the person of sufficient interest Order, if granted, remains in place.

The joint affidavit of the foster parents, the proposed persons of sufficient interest, states that they are willing to care for the children until each reaches age 18, or until the order is terminated, whichever event occurs first. [ 10 ] In my view, it is important that the children continue to have a sense of security in their placement, and continuity in their lives, both of which they will have if they remain in their current placement.

Further, it would be beneficial for each of the children to remain together as a family unit to the extent possible. [ 11 ] Although the evidence is somewhat sparse on the factors enumerated in s. 4 of the Act , I suspect that is because this is essentially a consent order, at least as far as the father is concerned: that is, he is clear that he is unable to care for the children. On the evidence before me, I find that each child is in need of protection pursuant to s. 11(

b) of the Act . [ 12 ] As the first option set out in s. 37, that of returning the children to their parent, is unavailable, the question is whether or not a placement with the proposed persons of sufficient interest would be preferable to a temporary order in favour of the Minister. I see no advantage in pursuing the latter option, as each child would, in all likelihood, remain where they are on a temporary basis; better that they have the added stability of the order being sought.

I am satisfied that the revised plan being proposed by the agency is appropriate in these circumstances. [ 13 ] As to the argument that the father, having agreed to a long term order, has by implication agreed to a lesser order, I find there is some merit to that argument in this case. I am satisfied that the father does wish to have a continuing relationship with the children, and that he clearly recognizes that he is not in a position, due to his circumstances, to offer a stable and nurturing environment, certainly not at this time.

As all individuals involved are members of and live on the same First Nation, continuing contact between the father and his children is more easily accommodated. [ 14 ] As well, s. 39 allows for a variation of an order placing the children with persons of sufficient interest, in the event circumstances change in the future. Rather than delay the proceedings further and leave the children’s future in a state of uncertainty, I am prepared in this case to make the orders requested. [ 15 ] Accordingly, pursuant to s. 23(1), I designate each of the foster parents as a person of sufficient interest.

Pursuant to s. 23(3), I order that personal service of this decision be provided to each of those individuals within fifteen days of receipt of it. [ 16 ] I find each child in need of protection, pursuant to s. 11(b). Pursuant to s. 37(1)(b), I make an order that each child be placed in the custody of the person of sufficient interest, which effectively means they will remain in their present placement. [ 17 ] Pursuant to s. 37(5), I order that the father shall have reasonable access on reasonable notice to each of the children.

To avoid any possibility of the father, who was not present at the hearing, being unaware of what occurred there, I also order that the agency ensure that a copy of this written decision be personally served upon him within fifteen days of receipt of it.

Dated at Saskatoon, Saskatchewan, this 11 th day of July, 2013. B.G. Morgan, J