THE MINISTER OF SOCIAL DEVELOPMENT Applicant v. C.G. and J.T., 2023 NBKB 136

2023 NBKB 136 COURT FILE: FDSJ 42-2023 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF SAINT JOHN BETWEEN: THE MINISTER OF SOCIAL DEVELOPMENT Applicant and C.G. and J.T. Respondents COURT FILE: FDSJ 136-2023 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF SAINT JOHN BETWEEN: T.L.L. Applicant and THE MINISTER OF SOCIAL DEVELOPMENT, J.T. and C.G. Respondents Before: The Honourable Mister Justice Danys R.X. Delaquis

Date of hearing: March 20-24, April 3-4, and May 24, 2023 Date of Decision: July 24, 2023 Appearances: Scott N. Larson - for the Applicant, The Minister of Social Development Patricia Gallagher Jette - for the Respondent, C.G. Natasha MacKay - for the Respondent, J.T. T.L.L. - Per Se

Summary: Guardianship, Post-Guardianship Access and Family Law Act Application

DECISION DELAQUIS, J.: INTRODUCTION [ 1 ] On January 23, 2023, the Minister of Social Development (“the Minister”) filed an Application seeking a Guardianship Order in relation to the children A.G., (DOB (…) 2013, age 10), A.T. (D.O.B. (…) 2014, age 8); and C.T. (D.O.B. (…) 2015, age 7). [ 2 ] The Respondent J.T. has ongoing struggles with mental health, drug addiction and violence issues. This was apparent on the first day of trial, when he had an outburst directed at the Court before the proceedings even formally commenced.

J.T. attended the trial sporadically thereafter and did not testify. [ 3 ] The Respondent C.G. and the children have endured significant hardship and trauma. They have been exposed to emotional abuse, domestic violence, and criminality principally because of the conduct of J.T. C.G. is a victim of domestic violence. In addition, the Respondents’ 15-month-old child M. tragically passed away on January 4, 2020. The entire family was devastated. A.G. still doesn’t understand what happened and blames herself. A.T. has a “PTSD-like condition” and takes medication.

C.T. was diagnosed as having ADHD, cognitive deficits and is prescribed medication. The entire family continues to struggle with this loss. All the children, as well as C.G., attend counselling. [ 4 ] The Minister alleges that C.G. “enables” J.T. and cannot sever her ties with him for the sake of the children. However, in the spring of 2020, C.G. voluntarily entered and successfully completed a 9-month rehabilitation program. In April 2021, after an assessment by the Minister, the children were returned to C.G.’s care where they remained until July 19, 2022.

C.G. says the children were taken into protective care at that time due to an incident of domestic violence for which she was not responsible. [ 5 ] Except for a couple of slips when the children were not in her care, C.G. has remained sober. C.G. is employed, has maintained proper housing for the children, attends all medical and dental appointments and is actively involved in their educational needs.

The threat of permanently losing her children finally pushed C.G. to break up with J.T. [ 6 ] Shortly before the trial started, T.L., the children’s maternal grandmother, filed an Application under the Family Law Act , S.N.B. 2020 c.23 as amended (the FLA ) seeking decision-making responsibility and primary care of the children. With consent from the Minister, T.L.’s Application was heard consecutively after the Minister’s proceeding, with the evidence in one being the evidence in the other. FACTS Historical Background [ 7 ] The family's history with the Department started in 2015.

A.T. was 2 years old at that time. The Minister was subsequently involved in 14 investigations regarding concerns of drug use from J.T. and C.G., emotional and physical abuse due to intimate partner violence and neglect. There was a child protection case from July 2015 to February 2018 (Family Enhancement Services), from August 2018 to October 2019, and from February 2020 until present. The February 2020 investigation was initiated by the Minister shortly after the death of the Respondents’ young child, M., in January 2020.

M.’s Passing [ 8 ] An important part of the historical narrative in this case involves the passing of M. on January 4, 2020. Ms. Delgado notes in her Affidavit that C.G. “was not doing well since the child’s death”. C.G. was using cocaine to cope, yelling at the children and was concerned about her relationship with J.T. [ 9 ] The Minister’s Affidavit evidence is scant on the details surrounding M.’s passing despite the acknowledgement in Ms.

Delgado’s Affidavit that this event “caused a huge impact on their lives”, which naturally includes M.’s sister and two brothers, as well as the Respondents. [ 10 ] In my view, it is important to review the evidence surrounding M.’s passing because it relates directly to the children’s mental health as well as their emotional well-being in the context of this case.

There was evidence presented at trial about M.’s passing and how it impacted the family and especially the children, including from two experts, Tanya White (therapeutic and counselling services) and Hannah Gray (Occupational Therapist with specialty in pediatrics). [ 11 ] C.G. explained that M. got Scarlett fever from the day care in January 2020. All four children were sick. The family doctor indicated that M. was “clear”, but C.G. was unsure and requested an X-ray because she took puffers periodically. The babysitter was at the home on January 4, 2020, looking after the children. She misplaced M.’s puffers.

The babysitter called C.G. but she was on the West Side doing drugs. The babysitter advised her that M. was not breathing so C.G. said: “I am on my way”. C.G. heard sirens and in fact, she pulled up to the residence behind the ambulance. She ran upstairs. A.G. fell into her arms. M. was lying on the futon not breathing. The paramedics carried her out and C.G. followed the ambulance to the Hospital. M. was put in a room. When C.G. arrived, the doctor advised her to plan a funeral. At that moment, C.G. was holding onto M.’s finger. Eventually, M. was transported by helicopter to the IWK Hospital in Halifax.

When C.G. arrived at the IWK hospital, M. was intubated and placed on a ventilator. She never responded to treatment and passed away. C.G. testified that “I live this nightmare every day”. She was mad at herself and felt like a complete failure. [ 12 ] A.T. and C.T. were sleeping when M. passed away but relate and live their loss based on what their sister, A.G. has told them. Ms. Durley, the foster parent, testified that the children “live and breathe [M.] in our home”. She has advised Jessica Wilson, the social worker currently assigned to this file, that M.’s death is a “daily issue” for the children. Ms.

Durley suggests to the children that M. is in heaven and in a happy place. However, A.G. insists that “nothing good happened”. According to Ms. Durley, A.T. gets flashbacks. The children receive counselling to help them cope with the loss. [ 13 ] Ms. Gray is an Occupational Therapist who testified as an expert at trial. Her evidence on the children’s needs will be canvassed in more detail below. Ms. Gray was asked how to separate the children’s trauma associated with M.’s passing from their behavioural issues. Her answer was: “You don’t”. C.T. has discussed M.’s death with very few people, including with Ms.

Gray, who has been working with the children. However, C.T. is trying to “process” her death in different ways as Ms. Gray indicated in her evidence. Ms. Gray recounts one occasion when C.T. saw his brother A.T. fall and hit his head. C.T. ran to his brother and started to perform CPR and screamed: “I need to save you [A.T.]; I’ll be your doctor”. [ 14 ] In April 2021, A.G. said to Ms. Gray that “it would have been better if she had died instead of [M.] because people would not have been so sad.” A.G. unfortunately believes that she is responsible for M.’s death, as Ms.

Gray further explains at paragraph 10 of her Affidavit:

This extended to a responsibility toward her younger deceased sister, [M.]. During a school visit, [A.G.] asked me to explain how her sister died. She asked if she had killed her sister because she was “in charge” when [M.] got sick.

I asked who else she thought could be in charge. [A.G.] said it was not her mother because that was before her mother “went to Shediac to find God” and could not be responsible. [A.G.] was especially worried because she remembered that [M.] was in respiratory distress then and [A.G.] placed her on a blanket that may have been “unclean”. [A.G.] described trying to do CPR on [M.] and saying she wasn't “good enough at explaining” to get her mom to come home on time to save [M.]'s life.

She asked me if adults are better at CPR than children and if that is why she did not save her sister's life. [ 15 ] A.G. was described as a sad child. The death of her sister triggers negative behaviours. In essence, Ms. Gray confirmed that M.’s passing “was a big piece” of the puzzle for these children. [ 16 ] Ms. White is a Registered Social Worker who provides in-home counseling and therapeutic services to families. Her specialty includes “parenting, neurodevelopmental disorders, anxiety disorders, OCD, grief and trauma”. She has 18 years of clinical experience. Ms.

White was declared an expert in the field of therapy with expertise in complex cases involving domestic violence and the completion of Danger Assessments. Ms. White is not surprised that the children are dealing with the trauma of losing a sibling. It is even more difficult for the children because it was unexpected, tragic and involved casting blame.

Healing from this trauma can take longer to process for children if they do not really understand why it happened. [ 17 ] After M.’s passing on January 4, 2020, the Minister entered into a 14-month kinship agreement with the paternal grandparents. [ 18 ] Not long after M.’s passing, C.G. says that a social worker threatened her with adoption. C.G. angrily responded: “Over my dead body”. Then, on May 13, 2020, C.G. went for “the first and last time” to rehabilitation. She graduated and subsequently ran the program along with eight other women.

Events Leading to the Taking of Protective Care from June 2020 to July 2022 [ 19 ] In June 2020, Ms. Delgado was the social worker assigned carriage of the matter. At that time, C.G. was attending the Rehabilitation Program in Shediac and J.T. was incarcerated. Ms. Delgado identified the Minister’s goals as follows:

a) To reunify the three children with [C.G.] as they were in a kinship placement with paternal grandparents. This family plan was created after the loss of a 15-month-old sibling in the home and [C.G.] subsequently relapsing.

b) For [C.G.] to work on her parenting skills as she yelled at the children, could not manage their behaviors and struggled with supervision.

c) For [C.G.] to remain sober, maintain stable housing and meet her children's needs of housing, food, and school attendance.

d) For [J.T.] to work on his mental health struggles, addiction, and parenting skills to be able to be part of the family in a safe

manner. [ 20 ] Significantly, C.G. met the stated goals at that time. She addressed her addiction and remained sober. As a result, the children were returned to her care in April 2021. I refer to the following Affidavit evidence of Ms. Delgado to further make the point: 9. [ C.G.] started counseling sessions provided by The Department in March 2022 with Social Worker Tanya White and has been attending consistently since then. [C.G.] has maintained stable housing, managed her limited finances, and attended the children's needs, including getting them to school every day.

She takes them to medical and other professional appointments and participates in school meetings. [C.G.] has worked on her parenting skills with a support worker provided by The Department and the Strengthening Families Program from Social Pediatrics. She recognizes that she yells at the children and is still working on parenting while attending programming. [ 21 ] It bears noting that after C.G. returned from her rehabilitation and assumed care of the children, T.L. spent several weeks helping her and supporting her efforts.

In fact, C.G. informed the Minister on June 29, 2020, that “the plan she would like to see is for her mother to move into her home with the children (…)” [Exhibit 5]. [ 22 ] From April 2021 to approximately April 2022, Ms. Delgado confirmed that there were no issues with the children in C.G.’s care. The children were going to school, taking their medication, going to their appointments. There were no “intakes” to the Minister during this period. Things were going well. [ 23 ] Ms. Delgado nevertheless continued to have concerns about the history of domestic violence and how it was affecting the children.

She therefore sent a requisition to Tanya White on March 28, 2022, to work with C.G. Ms. White prepared an Affidavit in which she explains some of the historical context as well as the purpose of Ms. Delgado’s requisition: 4. (…) The impact of exposure to domestic violence on the children was of particular concern (ex: noted behavioral issues at school, aggression, and meltdowns in the home).

The therapeutic interventions planned thus included: looking at intergenerational patterns as they pertained to histories of domestic violence exposure; providing psychoeducation on the effects to children exposed to domestic violence; safety planning, as needed; and appropriate follow up and/or referrals to other specialists (ex: Domestic Violence Outreach counseling).

Additional therapeutic interventions would include; assisting [C.G.] in developing positive parenting strategies within trauma-informed awareness regarding the children's exposure to domestic violence and medical trauma and grief from their youngest sister’s death as a toddler. [ 24 ] C.G. attended all scheduled appointments with Ms. White from April 7, 2022, to June 27, 2022, the later date being when Ms. White signed her first Affidavit. [ 25 ] Ms.

White explains in her Affidavit that some of the factors she considers in assessing risk for domestic violence included J.T.’s history of criminal involvement and incarceration – including for violent offenses – history of intimate partner violence with C.G., “a substantial drug use history dating back to his adolescent years (he reports beginning at age 13), low education attainment (he reports being kicked out of high school in Grade 9) and difficulty in gaining and maintaining employment.” [ 26 ] On April 27, 2022, a Case Plan was put in place by the Minister. The main points of the Case Plan were

(1) Children will live in a home free of domestic violence,

(2) Children will live in a home free of drugs,

(3) C.G. will meet the children’s needs and show positive parenting skills. This Case Plan was never updated and remained in effect at the time of trial.

[ 27 ] Ms. White recommended that Ms. Delgado make changes to the Case Plan “that would increase [C.G.]’s empowerment and safety”. Here are the changes to the Case Plan that Ms. White recommended:

a) I recommend that [J.T.] not have access to [C.G.], the children, or the home unsupervised while he has positive drug screens. b) [J.T.] has been attending the program on Tuesday evening with [C.G.] and the children, and [C.G.] has been providing his transportation. My understanding is that he was given taxi vouchers, and thus at this point, I'm recommending that he use them so as to not put [C.G.] and the children in any situation in the vehicle.

c) I recommend that I suspend service to [J.T.]. Where he is actively using, the therapeutic benefits will not be there, and it puts me at a higher level of risk in the home when the client is using crack/cocaine/ or methamphetamines/crystal meth.

d) A safety plan for [C.G.] needs to be established. [ 28 ] However, on May 17, 2022, an incident occurred involving C.T. and his father, J.T. C.T. informed Ms. Delgado that his father got mad, shut the door on him and he fell down the stairs. C.T. indicated that he was very upset after this incident and wanted to run away from home. [ 29 ] A meeting was held on May 20, 2022, with Ms. Delgado, her Supervisor, Patricia Scott, and the Respondents. J.T.’s significant cocaine use was addressed. J.T. admitted that he was an addict, had a “PhD” in drugs and that he was involved with a “bad crowd”. Ms. Delgado and Ms.

Scott stated their concerns about him being around the children while using drugs. They also expressed concerns over the five different versions they obtained about C.T. falling down the stairs. According to Ms. Delgado, C.G. denied that J.T. was present that day, which was identified as a “red flag” because of the history of domestic violence, physical and emotional abuse. C.G. was advised that she was again enabling J.T. [ 30 ] On May 20, 2022, a Safety Plan was therefore put in place which included the following conditions, as Ms. Delgado states in her Affidavit:

b) A Safety Plan (attached hereto as Exhibit "C") was signed with the following conditions: i. [J.T.] is not to be unsupervised at the home. He is able to attend Strengthening Families sessions with Tanya White and supervised visits on Thursdays. ii. [J.T.] is not to be under the influence while being with the children. iii. [J.T.] is to be sober for three weeks before I make any changes to this plan. iv. Parents are not to use physical discipline with the children. v. Parents are not to discuss the investigation with the children or blame them.

[ 31 ] On May 29, 2022, a Danger Assessment with C.G. was completed by Ms. White. C.G. was “very forthcoming, providing details of the past severity of the domestic violence”. Ms. White stated the Danger Assessment score was in the Severe Danger category, thus requiring “immediate attention to increase safety (ex: completing safety planning with C.G. and consulting with the Department of Social Development to share clinical recommendations)”. Ms. White explained the risk factors as follows: 8. Research on the DA indicates that not all partners who “batter” will kill their partners.

However, risk factors that separate partners who commit domestic homicide from those who do not include: threats to kill, extreme jealousy, choking, and forced sex ( Campbell et al , 2003). Additionally, active substance abuse translates to an increased risk of homicide. Of particular relevance, in this case, [J.T.] is actively using substances such as methamphetamines and cocaine, and [C.G.] reports a history of jealousy, choking, and forced sex on the danger assessment. [ 32 ] Ms. Delgado was pointedly asked if C.G. had breached the Safety Plan when T.L. asked J.T. to stay for supper. Ms.

Delgado’s response was that she did not think it was “okay” for that to happen. However, the Safety Plan in place at the time simply referred to the condition that J.T. not be at the home unsupervised. Ms. Delgado was of course asked whether T.L. was okay to supervise the visit, to which she responded: “I don’t recall talking to her". [ 33 ] In any event, C.G. testified that she was “in the wrong” in letting J.T. be in the home unsupervised in certain instances. One time, the boys asked J.T. to come over to watch a movie, but she knew he was not supposed to be there unsupervised at that time.

Her mother, T.L. was working and could not come over to the home that night. Here is part of C.G.’s evidence on the Safety Plan and this incident: Q. And it says, “enough protective capacities”. Do you know what they mean by protective capacities? A. Uh, no. I have a comprehension disorder. Q. Okay. A. I (inaudible) for protecting. Q. You haven’t heard the expression, “protective capacities” before? A. No. Q. Do you see then the next sentence. “[C.G.] has let [J.T.] be in the home despite the multiple recommendations and safety plans done with the Department.” Do you see that sentence? A. Yes, I do. Q.

And you agree that occurred? A. Yes, I agree. I was in the wrong. Q. Right. Well, it’s something that you did. You were responsible for that, right? A. Yeah, (inaudible) Q. So, again, it wasn’t just something that [J.T.] did, was it? A. Um, you try being scared of someone. Q. It’s difficult, I agree. A. Have you ever been beaten? THE COURT: So, it’d just be easier if you just – WITNESS: I do apologize. THE COURT: Unfortunately, we all have a role here, okay, Ms. [G.], so, yours is to answer questions right now and Mr.

Larson will continue to be respectful and ask his questions. [ 34 ] In any event, after the May 2022 Safety Plan was put in place, Ms. Delgado received reports from Ms. White about C.G.’s “high risk of femicide based on the Danger Risk Assessment tool”. Ms. White refers to her appointment with C.G. on June 6 th , 2022, and explains why it had to be rescheduled:

11. Despite strongly recommending to [C.G.] that [J.T.] not be present in the home during our sessions on June 6, 2022, [C.] informed me that [J.] was in the home sleeping; thus, our session on that date was rescheduled. It is felt that [C.] may have difficulties holding boundaries with [J.] which would be typical in violent intimate partner relationships. [Emphasis mine] [ 35 ] Approximately one week later, C.G. and J.T. attended the June 15, 2022, Permanency Planning Committee meeting with representatives of the Minister, including Ms. Delgado.

While concerns continued to exist regarding J.T.’s ongoing and increased drug use, positive developments were noted about C.G. Her strengths and progress were acknowledged, which included “maintaining stable housing, being sober, managing limited finances, participating in programming and counselling and attending appointments”. [ 36 ] As a result of ongoing concerns, the Minister applied to the Court for a Protective Intervention Order (PIO) vis-à-vis J.T. and a Supervisory Order on July 13, 2022.

However, an incident of domestic violence occurred on July 15, 2022, which led to the Minister’s decision to withdraw the request for a PIO. [ 37 ] On July 15, 2022, J.T. assaulted C.G. in front of the children. On July 16, 2022, the Minister received a report of the incident and therefore placed the children in the care of the paternal grandparents under a further Safety Plan. The Safety Plan was signed by C.G., J.T. and the paternal grandmother. One of the conditions of the Safety Plan was that J.T. was not to be alone with the children. [ 38 ] Ms.

Delgado attended the Respondents’ home to discuss this incident. She was advised that J.T. started to read the Court documents pertaining to the Minister’s request for a PIO, became very agitated and blamed C.G. He then threw a wooden box at her back and caused a bruise on the right side of her upper back. C.G. yelled at J.T. to leave the home, but he refused. After reading the documents further, J.T. came at C.G. again and threw the documents at her face. After C.G. picked up the documents, she proceeded to return to the living room. J.T. then jumped on her and started to punch her in the face.

One of the boys shouted: “Dad stop”. J.T. left the home when the neighbour arrived. [ 39 ] C.G. did not call the police, but showed Ms. Delgado a bruise near here right eye and between her eyes because of wearing her glasses at the time of the assault. C.G. explained to Ms. Delgado that she believed that the incident was her fault. [ 40 ] A.T. and C.T. subsequently informed the foster parent, Ms. Durley, that they witnessed their father fighting with their mother. They were scared. A.T. informed Ms. Durley that J.T. punched C.G. in the face. C.G. was trying to cover her face with her hands.

A.T. said that he was worried that his mom might get hurt. A.G. explained to Mr. Durley that “her dad can’t help it because he has ADHD”. [ 41 ] There is no Case Plan or Safety Plan that specifically precluded J.T. from going to the home and seeing the children if he is supervised. The Case Plan dated April 27, 2022, did not place any supervisory conditions upon J.T. The Safety Plan dated May 20, 2022, indicates that J.T. cannot be with the children unsupervised and that he is to not be under the influence “when in the home”.

That was the Safety Plan in place when the July 15, 2022, incident of domestic violence occurred.

The revised Safety Plan dated July 16, 2022 was put in place after the July 15, 2022, incident and indicates that J.T. “is not to be at the home unsupervised”, that he is “not to be alone with the children” and that the children shall stay with the paternal grandparents until C.G. and J.T. can meet with the social worker(s). [ 42 ] In other words, the Plans put in place by the Minister at that time continued to allow J.T. to return and spend time at home as long as he was supervised. [ 43 ] On July 19, 2022, the Minister informed C.G. that the request for a PIO and Supervisory Order was going to be withdrawn.

Instead, the Minister took the children into protective care on July 19, 2022 and placed them in a foster home. The Respondents were informed that the Minister would apply for an up to six-month Custody Order while the parents worked on a Case Plan. [ 44 ] The Respondents were advised that during the six-month Custody Order period, the Minister would assess if J.T. is able to address his addiction by attending treatment, his mental health which included working on domestic violence. The Minister also wanted

C.G. to work on her mental health by attending Counseling with Tanya White with a specific goal of working on domestic violence. C.G. also had to remain sober. Lastly, the Minister wanted both parents to work on positive parenting skills as the children presented with frequent dysregulation and meltdowns. [ 45 ] Ms. Delgado was cross-examined in connection with the Minister’s decision to withdraw the PIO. The suggestion was that the PIO was important to immediately address the concerns of abuse and that the Minister did nothing about it knowing that C.G. was willing to comply and feared J.T. My impression of Ms.

Delgado during parts of her testimony was that she was defensive and protective of the Minister’s decisions and seemed at times irritated by the questions posed to her on cross-examination. [ 46 ] T.L. spoke to Ms. Delgado after the children were taken into protective care and advised that she was upset “but that it should be a learning lesson for [C.G.].” However, T.L. did not, at that time, offer to take the children under her care. Parenting After Protective Care [ 47 ] Ms.

Wilson, a social worker, met with C.G. in August 2022 after she assumed carriage of this matter and again on September 15, 2022, to finalize the Case Plan. C.G. agreed with all the Minister’s objectives and signed the Case Plan. Ms. Wilson was concerned that C.G. struggled to parent all three children at the same time. [ 48 ] The Case Plan at Clause 3 (

f) states that the Minister “will propose a Family Group Conference (FGC) to happen for the family to come together on a long-term plan”. Ms. Wilson’s evidence is that she does not recall speaking to C.G. about the FGC, but then testified that she did speak to her about it but that she did not seem interested. There was no follow up until the Minister made the decision to apply for a Guardianship Order. At that time, in January 2023, Ms.

Wilson said that the “family had been through a lot” and that another FGC was not “on the table” at that time. [ 49 ] Since the children were taken into protective care in July 2022, the supervised visits with C.G. were scheduled during the week, after school, from 3:00 p.m.to 5:00 p.m. Family Support Workers, Mr. Perrin, Ms. Lemon, Ms. Vautour and Ms. McEachearn, generally expressed concerns about C.G. relying too much on electronic devices to help her parent, that the visits were “chaotic”, “hectic” and “unplanned”, that no snacks or meals were available and also expressed some safety concerns.

Their Affidavits give select examples to support their general observations. [ 50 ] Despite the focus on the “hectic” nature of the visits, Mr. Perrin testified that the visits he supervised in the home were chaotic “at times”. Ms. Wilson described the visits as “a bit chaotic”, that C.G. was loud “but that is her nature”. Ms. Lemon was asked whether the visits were simply typical of what one would expect with three active young children as opposed to “chaotic”. Her evidence was that she didn’t really know what typical visits would look like with these children. She was only asked to record her observations. Ms.

Vautour admitted on cross-examination that some activities were planned, but “there was no order to things”. [ 51 ] For Ms. McEachern “chaotic” visits meant that they were “loud and hectic”. She however stated that the children give C.G. positive feedback, she has observed positive interactions between them, and that C.G. did bring healthy snacks. She said that C.G. and J.T. have different parenting styles, that J.T.’s drug use is inappropriate, but that C.G.’s response was appropriate by changing the subject during visits when the children raised the issue. Lastly, Ms.

McEachern observed C.G. giving the children hugs and kisses before ending visits. [ 52 ] In November 2022, J.T. was not permitted to attend the home to visit the children. Ms. Vautour recounts in her Affidavit that during the November 21, 2022 visit, A.G. said she was in the kitchen and that she saw her father open the back door. There was a disagreement about what happened, after which C.G. told A.G. “well, I’ll have to talk to your father and tell him that he crossed the line”. Ms.

Vautour then informed C.G. that if she and the other family support worker had observed J.T. in the home, “the visit would have ended immediately”.

[ 53 ] Ms. Lemon testified that during her time supervising the family visits, T.L. attended approximately three times. T.L. interacted more with A.G. Mr. Perrin also testified that he observed T.L. interacting more with A.G. than “the boys”. Ms. Lemon and Mr. Perrin testified that T.L. advised them that “[A.G.] is the only one I could save”. Mr. Perrin said that he was led to believe that meant that T.L. was only able to care for A.G. [ 54 ] On January 5, 2023, C.G. attended the Permanency Planning Meeting.

The Minister raised concerns about her drug use, her and J.T.s’ relationship, her ability to parent the children independently, and concerns that she could not protect the children from J.T. At the meeting, C.G. confirmed she was in still a relationship with J.T.; however, she did not support his drug use. C.G. was informed that the Minister still had ongoing safety concerns and at this time, the main consideration was the children's permanency.

The Minister explained to C.G. that a Guardianship Order would be sought. [ 55 ] An incident occurred on January 13, 2023, that resulted in the visits with C.G. to be moved from her home to the Supreme visitation room. A loud noise, or “bang” as Ms. Vautour describes it, was heard near C.G.’s home. This noise frightened A.T. because he believed “he heard a gunshot and saw a man with a gun”. C.G. responded by stating: “You didn’t see anyone with a gun [A.T.]; Stop lying”. Ms.

Vautour was present at the home when this incident occurred because she referred to it in her Affidavit and stated that she spoke to her supervisor about it. She later admitted that she did not know if in fact a gun shot went off and that she “knows nothing about it”. She further testified that this sound “could be anything”, it did not alarm her and that she has “no idea what it was”. She finally suggested it could have been a car’s exhaust backfiring. Ms.

McEachern testified that although she was not advised of any details surrounding this incident, she understood that it was “a car backfiring”. [ 56 ] How could the Minister make any decision to reunite the family in their home with C.G. without conducting even the most basic investigation about what happened on January 13, 2023? Ms. Wilson was asked whether it would be better for the children to have visits in the home rather than in the confined space at Supreme. Of course, the children and C.G. would rather have the visits at home. But Ms.

Wilson still clings to the idea that there is a safety concern because of the alleged gunshot noise. It is clear however that no social worker, including Ms. Wilson, knew what caused this loud noise because no investigation was carried out to confirm what the safety risk was, and whether it still exists. Ms. Vautour was present on that day and testified that she thought it was a car backfiring. Ms. Wilson confirmed that she does not know if A.T. is still scared because she has not talked to him. [ 57 ] Ms. Scott, the Supervisor, testified that it is irrelevant if there was a gunshot or not.

The only concern is how the child feels. She indicated she would “love to have them in the home” and that there is a plan to transition back to the home in “maybe in a few more months”. A.T. will not be able to feel better and safer at home if he continues to believe that he heard a gunshot. A basic inquiry would have allowed the Minister to at least try to calm A.T. and alleviate his fear. Is that not worth the effort? Instead, the Minister decided to file a Guardianship Application 13 days after this incident occurred.

The visits still take place at Supreme. [ 58 ] Five days after this incident occurred, on January 18, 2023, C.G. sent Ms. Wilson a text advising she had broken up with J.T. on January 5, 2023, and that “we cannot take her children from her”. [ 59 ] Ms. Wilson informed C.G. of the decision to move the visits to Supreme on January 20, 2023. The basis for the decision was that gunshots were allegedly heard, and no one knew where they were coming from. In addition, A.T. was very upset and did not feel safe. [ 60 ] Ms. McEachern’s first supervised visit with C.G. was on January 24, 2023.

Her Affidavit includes a long paragraph which refers to several observations and comments about why she believed the visit was hectic. A.G. wanted to know if her father was doing drugs. Ms. McEachern interjected and suggested that they should talk about something else because that was an adult conversation. C.G. agreed and then said: “okay, let's not talk about dad anymore because this visit is about our time” and changed the subject.

[ 61 ] Ms. Wilson was the social worker assigned to this file when the decision to apply for Guardianship was made by the Minister. FGC is an important forum for the Minister and the parents to meet to discuss ongoing issues. But no FGC was ever held just before or after the decision to proceed to Guardianship was made. Ms. Wilson indicated that it’s all about the best interests of the children and that they deserve permanency. Counsel suggested that the children deserve for the Minister to consider all possible plans. Ms. Wilson agreed and confirmed that it is still possible to have an FGC.

However, she maintained that in this case it is too late because the Application has been filed and the parents have already had opportunities to address the Minister’s concerns. [ 62 ] C.G. arrived at the February 10, 2023, visit at 3:00 p.m. because she had just finished work. She brought a snack consisting of cheezies, oranges, apples and Sunny D juice. During the visit, A.G. said “I hate Jessica [Wilson]; she’s taking me away from all my family”. C.G. explained that this was how it had to be for now. A.G. then asked her mom to buy them more stuff. Ms.

McEachern suggested to C.G. that “she could plan activities with things she already has at home instead of spending money”. C.G.’s reply was: “well, CPS wants me to bring things and my kids are going to be coming home with me, so I have to do what they ask”. [ 63 ] Later during that same visit, as they were preparing to leave to return to the foster home, A.G. became quite upset. She was crying so hard that she was hyperventilating, according to Ms. McEachern’s Affidavit. After an agreement was reached to give the children a chocolate bar for the ride home, A.G. said “I just want to be home.

I feel like all the pressure is on me.” C.G. replied, “you’re coming home [A.G.]. I just can’t give you a time”. A.G. then said: “I want my nana. She’s the only one who understands me.” C.G. then said: “this kills me every time. I just want my kids”. [ 64 ] C.G. explained how J.Ts.’ presence affects her parenting of the children in her testimony: Q. “If he [J.T.] is around the children will probably be at risk, due to his violence to me. I understand that and agree with them.” A. Yes. Q. Do you see that?

So, I’m wondering how does Mr. [T.]s’ presence impact on your yelling at the children and your struggling to control them while they are in your care? A. [J.] likes to control me. Q. Okay. A. And I don’t like being controlled. Q. Okay. So, how does that manifest itself or make itself shown with respect to your parenting the children? How does it impact that? A. It’s like a rule of three. If it doesn’t work the third time and it’s just frustrating, so, like being told over and over again, and asked the same thing over and over again, is a frustrating matter. Q.

That when the children ask you something over and over again, you get frustrated because of the way Mr. [T] is treating you? Is that what you’re saying? A. Not necessarily. Not (inaudible) scenario of what has happened, what’s going on. Like I told you before, I can be a very emotional person, and it kind of built on that from when I was bullied in school all the way up. I just want to show my kids that you don’t have to

be pushed around. [ 65 ] C.G. requested more visits from the Minister because the visits were never on the weekend. This meant that they were always right after school, from 3:00 p.m. to 5:00 p.m., at which time the children returned to the foster home. If C.G. had visits over the weekend, she could plan to have a meal with the children, but the Minister refused to extend them even when J.T. was not present. [ 66 ] In response to the Minister’s concerns, C.G. stated that she is taking the Gentle Parent Program and that “it’s working”. She is calmer now. Snacks are not a concern anymore.

She supplies them even when on two occasions, Supreme didn’t have any available. She says she is doing the best she can and stated that overall: “I think I am doing a friggin good job”. [ 67 ] C.G.’s residence has three bedrooms. They have been residing there for several years. She has no issues accommodating the children’s housing needs. However, she would like to maybe buy a mobile home one day. At present, C.G. works four to five days per week. Her shifts vary between 4 or 8 or 12 hours because her employer accommodates the visits.

Other than social assistance benefits, her employment is her only source of income. She is using her employment income to help her make bi-weekly payments on her vehicle so she can continue to attend visits and appointments with the children. C.G. described her workplace as her “Zen place” right now. [ 68 ] Other than one missed appointment, she attends all of them with the nurse practitioner, Dr. McKenna and the dentist because, “I am still their mom and no one is going to strip that from me”.

She has also attended all appointments with the optometrist. [ 69 ] C.G. sends and receives emails to and from all the children’s teachers and principal in connection with all their educational needs. She attended the Christmas party last year and indicated that A.T. went up on stage when he saw that she was present. Her plan is to ensure that the children remain at their current school. [ 70 ] I find that C.G. has perhaps not perfectly, but substantially, met the goals of the Case Plan dated September 15, 2022 [Exhibit 7] and the Safety Plans since the children have been taken into protective care.

The Case Plan prepared by the Minister on September 15, 2022, was never amended or changed to reflect new developments. [ 71 ] Clause 1(

a) of the Case Plan provides that C.G. and J.T. “will not be in the presence of the children unsupervised due to the history of domestic violence. Supervision needs to be by somebody approved by Social Worker.” Ms. Wilson confirmed that there have been no issues on this point since the children were taken into protective care in July 2022. [ 72 ] The other concern expressed by Ms. Wilson relates to Clause 1 (

b) of the Case Plan, which states that C.G. will attend counselling sessions to work on her Mental Health struggles and domestic violence. This clause was described as a “generalized thought”. Ms. Wilson relies on Ms. White’s opinion that C.G. has not progressed as much as she thought she would. Ms. White testified that she has helped C.G. address dysregulation issue and maintaining positive connections and language. Ms. White indicated that C.G. “has done that here” and that her progress is measured by feedback and self-reporting. C.G. is working full-time which makes it sometimes more difficult to

schedule appointments. That however does not mean that C.G. is not meeting the requirements of Clause 1 (

b) of the Case Plan. [ 73 ] The Minister’s concerns at 3 (

b) of the Case Plan relate to C.G.’s parenting generally. Ms. Wilson testified that the Minister still has concerns on this front. There has no doubt been bumps in the road in terms of C.G.’s parenting. However, C.G. has demonstrated real progress especially since December 2022-January 2023 which coincidentally is when she broke up with J.T. Visits “have improved a lot lately, especially since January” according to Ms. Wilson. Ms. Wilson stated: “She has come a long way”. C.G. presents with no threatening conduct. Ms.

Wilson also conceded that although C.G. has said some things that were inappropriate, “every parent may say something they regret”. The Affidavits filed by the Family Support Workers refer to almost none of the many visits with C.G. that have gone well, even lately. C.G.’s Sobriety

[ 74 ] On October 5, 2022, Ms. Wilson was concerned that C.G. was not sounding like herself and “not making a lot of sense”. Ms. Wilson had a discussion with C.G. on that same day who admitted that she had a “slip” and “used two meth pills”. Ms. Wilson then advised C.G. that saliva testing would resume and that she needed to be sober at her visits. [ 75 ] Of the six drug test results before the Court for C.G., three were positive for illegal drugs. The positive tests are dated October 6, 2022, November 15, 2022, and February 13, 2023.

The negative tests were dated October 18, 2022, October 26, 2022, and October 31, 2022. All the tests show positive results for THC. The suggestion was made on cross-examination of Ms. Wilson that cold medicines and other medications containing opioids may affect the test results. She did not know and does not have the training or qualifications to answer that question in any event. Ms. Scott has no training to explain the significance of the numbers in the drug testing reports. She says that they are used for case planning. She could not say that the results lead to worse parenting or how they affect parenting.

No expert, including the author(

s) of the drug testing reports, was called to testify. [ 76 ] C.G. said she was clean for 18 months after completing rehabilitation but admitted that she “slipped” a couple of times in October 2022. She says she took two “meth” pills. She was being blamed for M.T.’s death after the children were taken into protective care and took it very hard. She explained that the February 2023 positive drug test is unfortunate because she attended a party without any intention of taking drugs. She blacked out and does not recall taking drugs. She does ingest cannabis because it helps her anxiety and PTSD.

In addition, the cannabis is prescribed. In any event, C.G. says the slips are in the past and that she is in a good spot right now considering everything that has happened. [ 77 ] T.L. has spoken to C.G. about these slips and advised her that she needs “to be clean or not see the kids. It’s black and white”. The children cannot see that; it’s not safe. [ 78 ] Other than the exceptions noted above, I find that C.G. has remained sober since she entered her rehabilitation program in the spring of 2020. There is no evidence to the contrary.

The Children at the Foster Home [ 79 ] Dawn Durley has been a foster parent for 28 years. The children have been residing in her foster home since July 2022. [ 80 ] According to Ms. Durley, C.T. and A.T. have both received a diagnosis of ADHD, and both take medication. A.T. struggles in school with behavioural problems, while C.T. requires constant supervision, otherwise he “puts himself in harm’s way”. A.G. constantly tries to parent and care for her two brothers. Ms. Durley often has to remind her to “focus on being a child”. Despite all these issues, Mr.

Durley states that the children “are doing well in my care, and I believe this is because they are aware of the rules and the environment is predictable as we have a structured routine”. She has rules: it’s hands off or no T.V. or electronics, and she “follows through with it”. According to Ms. Durley, the key is consistency and structure.

[ 81 ] In her Affidavit, Ms. Durley recalls a conversation with A.T. one morning to the effect that, for reasons he cannot explain, he feels safe in her house. A.T. explained to Ms. Durley that he was scared living at home because, “the person living downstairs would come up and fight with his dad. They would fight and holler at each other and the guy would tell his dad that he was going to kill him”. [ 82 ] A.T.’s behaviours allegedly change when he is at the foster home. He does not kick or punch and is not dysregulated “hourly”. Mr.

Durley explained that he doesn’t act up at her home because she “does not put up with it”. She then stated that he does get mad “once in a while”. A.T. loves puzzles and plays “transformers”. However, he needs alone time. [ 83 ] C.T. loves to build, fantasize, and draw. He is sometimes oblivious to his surroundings. Mr. Durley explained that the boys can, on occasion, have aggressive behaviours, but that she does not allow destructive behaviour or hitting. C.T. does not talk a lot but will ask questions. Ms.

Durley said that if you do not treat C.T. differently, he “responds okay”. [ 84 ] A.G. is very artistic, loves to draw, enjoys reading and modelling play dough. Mr. Durley explained that it is difficult for A.G. to give up the “parent role” she assumes with her brothers. [ 85 ] Mr. Durley testified that T.L. came over twice to see the children. The first time, she took A.G. for a visit, but the second time, all three children went with her. Mr. Durley believes that A.G. has a strong bond with T.L. It is Ms.

Durley’s understanding that T.L., for reasons that she cannot explain, is not permitted take the children for an overnight visit according to the social workers. She stated that to this day, she would entertain visits between the children and T.L. [ 86 ] The children all speak highly of their mom to Ms. Durley and say they miss her. Ms. Durley stated that C.G. attends Teams meetings with C.T.’s teacher. She also clearly indicated that A.G. has a “very close bond” with her mother and T.L.

C.G.’s Relationship with J.T. [ 87 ] Evidence in relation to C.G.’s relationship with J.T. is important in this case because if J.T. is around the children, they are at risk of being exposed to domestic violence, drugs and an overall unsafe environment. The Minister’s position is that if C.G. maintains a relationship with J.T., she exposes the children to all these risks. The advice the Minister gave C.G. was that she needed to develop protective capacities that will benefit the children. According to Ms.

Delgado, C.G. had not yet developed those capacities at the end of her involvement in the file in August 2022. At that time, the Minister has obtained a 6-month Custody Order. [ 88 ] C.G. met J.T. on April 20, 2012 and started dating on June 25, 2012. In August 2012, C.G. was pregnant with A.G. and J.T. was incarcerated. He has been in and out of jail ever since that time. C.G. has been the only consistent parent. [ 89 ] C.G. explained that significant amounts of verbal and physical abuse started after A.T. was born. J.T. put a hole in the wall. J.T. would not even listen to his father.

J.T. started to dabble in drugs and then the Minister entered their lives. C.G. testified that she was very fearful for her life. She was bullied her whole life and always tried to be what others wanted her to be. She kept “losing her way” and did what J.T. wanted. He controlled everything. J.T. was “very damaged” according to C.G., but she did not realize how damaged he was until much later. [ 90 ] The first time J.T. hit C.G. was when she called him out for doing drugs. He hit her five times and blew her ear canal.

She was deaf in one ear for four years and then had surgery. [ 91 ] They were very excited when M. was born in 2017. C.G. called NB Housing and secured housing that they have kept ever since. All the children were young. When J.T. was home he didn’t do much. It was a hectic time for her, but she thought she managed well “all things considered”.

[ 92 ] C.G. was then introduced to crack cocaine, and everything went downhill for her. Her choice was to go to Hestia House or lose the children. She went to Hestia House for four months while J.T. was incarcerated, but he eventually returned home again. At that time, M. was six months old. When J.T. returned to jail yet again, C.G. got lost in drugs. A babysitter was living with her at that time. [ 93 ] The Minister referred to an incident that occurred in February 2021 as one example of C.G.’s inability to put into effect protective capacities.

J.T. was at home and T.L. apparently invited him to stay for supper. Ms. Delgado believes that J.T. fell asleep on the couch because he using drugs, so she addressed it with C.G. and T.L. Ms. Delgado testified that after various incidents where J.T. was home unsupervised, C.G. would say “I know, I understand”, as would T.L., but they kept recurring. [ 94 ] Ms. Scott confirmed that there were no reported incidents of domestic violence or verbal fights between C.G. and J.T. between May 2021 and May 2022. [ 95 ] There was no Safety Plan in effect at the time of the May 17, 2022, incident.

The first Safety Plan came into effect on May 20, 2022, with the conditions noted above. However, that same Safety Plan was in force at the time of the July 15, 2022, incident and was subsequently amended. Counsel for J.T. suggested that the Safety Plan was maybe not clear because it did not specify who could supervise J.T. around the children. Ms.

Scott testified that everyone knew that C.G. could not supervise J.T. under that Safety Plan and it was therefore “not confusing”. [ 96 ] At the June 15, 2022, Permanency Planning Committee meeting, the Minister had not abandoned the idea of the Respondents being together as a family. If fact, the Minister supported the idea if the Respondents were prepared to work on it in order to make it safe for the children. Ms.

Delgado confirms in her Affidavit that, at that meeting, “It was expressed that The [sic] Department supports the couple’s goal to be together as a family but work needed to be done before it was safe for the children for them to do so.” However, that stated goal abruptly changed after the July 15, 2022, incident. [ 97 ] After assuming carriage of the file, Ms. Wilson explained to C.G. in September 2022 that “the Department would not support [J.T.] and [C.G.] being together in the presence of the children.” Ms. Wilson testified that in October 2022, C.G. told her that J.T. is like a drug to her. Ms.

Wilson also confirmed that C.G. brought up her plan that her mom would live with her and that she wanted to set up a meeting to discuss and “work out the details”, but the meeting never took place. [ 98 ] Ms. White’s evidence about the Respondents’ relationship must be considered because one of the reasons she was referred the file was to specifically address this issue with C.G. Ms. White’s training and clinical experience demonstrates expertise in areas of trauma, domestic violence, using different models of therapy such a Cognitive Behavioral Therapy (CBT) in addition to the preparation of Danger Assessments.

Therapy basically constitutes 100% of her private practice, along with some psychotherapy. Most of her practice is working with children aged 8 and up and families. Ms. White provides therapeutic and counselling services to C.G. regarding her relationship with J.T., in addition to parenting and “building her awareness of the children’s needs related to their trauma histories.” [ 99 ] Ms. White explains at paragraph 6 of her January 25, 2023, Affidavit that C.G. still has difficulty permanently severing her relationship with J.T.: 6.

After the children were placed into guardianship with the Minister and removed from [C.G.]'s care in July 2022 due to a domestic violence episode in the home, safety planning continued, and [C.G.] was encouraged to plan her future without [J.T.]. Many sessions were spent discussing this topic area. [C.G.] has had difficulty creating and maintaining boundaries with [J.T.] and letting go of the hope of a healthier relationship with him in the future, as evidenced by her maintenance of her relationship with him over the past six months.

Central to this issue has been [C.G.]'s wanting the children's biological father to be in their lives. Despite the domestic violence education, therapeutic support, and removal of the children from the home, there has been little movement toward permanently severing the relationship with [J.T.].

[ 100 ] Ms. White described this case as “complex”. This means that several things are going on at the same time, including mental health, incarceration (J.T.) in addition to domestic violence. The specific treatment goals for C.G. include (1) parenting and understanding challenging behaviours with psychotherapy and (2) addressing domestic violence issues and to provide safety. [ 101 ] Gains have been made by C.G. in terms of understanding the children’s behaviours such as dysregulation and patterns of violence. According to Ms. White, the gains are in the form of insight of the forms of abuse.

There are mixed results in terms of creating and holding firm boundaries with J.T. At the time her Affidavit was sworn to January 25, 2023, Ms. White did not know if the relationship between C.G. and J.T. had ended. She was advised that the “turning point” for C.G. was the filing of the Guardianship Application. [ 102 ] Ms. White met T.L. for the first time during the trial. She learned that there was, in fact, intergenerational domestic violence based on T.L.’s own experience.

She indicates that this part of the trauma history is helpful to understand. [ 103 ] Due to the current situation of J.T.’s drug use and violence, and the chance of recidivism, Ms. White to recommends that C.G. needs to be “without him”. In Ms. White’s opinion, J.T. should not be involved in the children’s lives right now. [ 104 ] However, Ms. White testified that the children may eventually need to see J.T. but under supervision and “in a safe place”. She opined that it is wrong to allow A.T., for example, to see his father simply because he wants to due to the potential for harm. According to Ms.

White, if enough measures are in place, it would be “okay”. She cannot speak about the other children because she has not been involved in their therapeutic care. She stated however that if they are old enough there is potential to allow that to happen. However, it is necessary to take a holistic view - the child needs to be old enough to exit the visit if he or she chooses to do so. Ms. White is not certain for how long her therapy with A.T. needs to continue, but he needs to stabilize. [ 105 ] Ms.

White indicated in her testimony that women who are in an abusive relationship take a long time to get out of it and have long-lasting residual trauma. It is common to see a lot of attempts to go back to the relationship. Here a Safety Plan was put in place for C.G. in May 2022 including a planned exit route and a packed suitcase. C.G. was receptive to all of it. [ 106 ] On January 20, 2023, C.G. advised Ms.

Wilson that “she is broken up with [J.T.] and is ready to focus on her children.” C.G. testified that she ended her relationship with J.T. on January 5, 2023, because of the threat of the Minister taking her children and because she was trying to make a difference. She tried to co-parent with J.T. because the children love him. J.T. is lost and needs help. C.G. confirmed that she is not in a relationship now and that the children “are my life”. [ 107 ] C.G. believes that J.T. needs to go and deal with his addiction and beat the skeleton in his closet on his own. She described J.T. as selfish.

She is however concerned that the children worry about their father because they ask her “where is he” and “is he alive”. C.G. can only pray and hope that J.T. gets help. Her evidence is that although it took her a long time to figure it out, she cannot enable the relationship anymore, she cannot fix him and must focus on fixing herself. [ 108 ] The challenge faced by C.G. is how to look after the children while still appreciating some of the good things about their father. Ms.

White described this task as very challenging, but after completing the Danger Assessment, she felt it was important to “keep this fellow [J.T.] supervised”. Ms. White believes that C.G. cannot take on the responsibility of treating J.T. C.G. needs to “stay at the centre of her control”. [ 109 ] In essence, Ms. White believes that if C.G. wants to get her children back, she needs to do it in a safe way. This requires C.G. to sever her relationship with J.T. This was C.G.’s answer to the relevant question put to her on cross-examination: Q. Right.

Do you agree with me that the social workers in this file were clear with you that the children were not going to be returned to you as long as you remained in a relationship with [J.]? A. Yes, and that’s why at the end of January, I ended it.

The Children’s Needs [ 110 ] The history of the care of the children demonstrates that they have significant and ongoing mental and emotional needs but also certain physical needs as well. In December 2020, Dr. Marianne McKenna referred the children to Hannah Grey, an Occupational Therapist, to work with the children. Given Ms. Gray’s extensive involvement with the children on these issues, I will refer to her evidence in some detail. [ 111 ] Ms. Gray was declared an expert in Occupational Therapy (OT) with a specialization in pediatrics. Her qualifications are not disputed.

She completed her Master’s of Science in Occupational Therapy from Queen’s University in 2018 and received a Certificate in Cognitive Behavioural Therapy from Wilfrid Laurier University in 2019. Her Curriculum Vitae confirms that the focus of her training and clinical experience is working with children. [ 112 ] Ms. Gray initially worked with all three children. However, she did not see the children between September 2021 and August 2022 because of new employment. The children were referred to her again in August 2022, after the Minister took them into protective care.

More specifically, she was asked to provide psychosocial intervention for A.T. While A.G. is now followed by the Child and Youth Team for her mental health services, Ms. Gray continues to work with A.T. and C.T. The treatment goals that Ms. Gray focuses on include the following: • Encouraging emotional regulation • Establishing healthy routines • Supporting development regarding play and social skills • Improving capacity to engage in academics • Providing caregiver coaching regarding developmentally appropriate expectations [ 113 ] The children often refer to Ms.

Gray as a “safe person” and have clearly developed a good rapport with her from the outset of her involvement in their lives. One of the principal themes that emerges from her evidence is that the children need consistency, stability and safety to ensure their mental and emotional well-being. I will however refer to the highlights of Ms. Gray Affidavit and oral evidence for each child. [ 114 ] Ms. Gray explained that A.T.’s opportunities to build relationships are limited. He has no real friends at school. Ms.

Gray says that A.T. has received the most OT intervention from her in addition to one-on-one educational assistance. She has not seen A.T. regulated very often. A.T. often cries, “tends to shut down, look vacant or disengaged when overwhelmed”. [ 115 ] A.T. struggles at school. In September 2022, A.T. told Ms. Gray that he “hates” all of his classmates, because they were ““bragging” about having moms and dads and living in houses with their families and that he did not get to have that”.

As A.T. listened to his classmates speak about his parents in this manner, “it would make his stomach hurt and “turn his hands into fists””. [ 116 ] It is equally clear that A.T. does not like social workers either. Ms. Gray reported that in November 2022, she advised A.T. that his social worker was coming to visit him at school. A.T.’s response was that he wanted to “punch, punch and kill” the social worker because she upset his mother. A.T. further stated to Ms. Gray, that “she [the social worker] will never know how much she hurt me”. [ 117 ] Intensive therapy and educational support are required.

According to Ms. Gray, A.T. needs consistency and stability, “unconditional positive regard: and for one person to see him as “innately good””. She stated on cross-examination that in her view, the positive regard “needs to be a family member”. Ms. Gray’s

summary of care for A.T. is at paragraph 24 of her Affidavit: 24. My role as an occupational therapist, is to establish functional capacity to engage in important activities, like play, academics, and self-care, and to promote development. I have assessed [A.T.] to establish cognitive capacity for impulse control, multistep planning, and social engagement, but observed that he has not remained stable over time. Further, he is not able to engage in activities that are necessary for development because he is so frequently dysregulated. He is not now, and has never been in the time that I have known him, able to meet any of his educational, emotional, or developmental milestones.

[ 118 ] Ms. Gray has had more limited involvement with A.G. but followed her from February 2021 to September 2021. A.G. is described as very mature and takes on caring roles, including a sense of responsibility for her brothers. Ms. Gray believes that A.G. has “had limited and inadequate support to manage these complex situations” and provided several examples in her Affidavit in support of her opinion. Ms. Gray described A.G. at paragraph 14 of her Affidavit: 14. [A.G.] is a sweet girl who people generally assume as well adjusted.

It is not common for her to outwardly complain to unfamiliar people about her parents or being in foster care period however, she does complain about stomach aches, loneliness, tiredness, or she does things which people consider attention seeking. She is keenly aware of what she needs to say to get and maintain connections and is extremely alert to the needs of her brothers. [ 119 ] When Ms. Gray assessed C.T. he was only 5 years old and sleeping on a mattress in his paternal grandparents’ room. According to Ms. Gray, C.T. has “significant challenges with impulsivity, emotional control and verbalizing his needs”.

C.T. is followed at school by an educational assistant on a one-on-one basis. He screams if he is denied something. Ms. Gray summarized her involvement with C.T. at paragraph 29 of her Affidavit: 29. [C.T.] continues to be significantly behind his developmental milestones and his constant stress does not facilitate the development that he needs. His speech has limited intelligibility, he does not understand two step contingent thought processes, and he has limited joint attention.

While he does not verbalize his stress the way his brother does, he urgently needs relief from his stress to facilitate his development. [ 120 ] Ms. Gray prepared an OT Report on March 15, 2023 regarding C.T. Various assessments were performed by Ms. Gray in relation to C.T.’s executive functioning. C.T. was 7 years, 6 months old at the time of the assessments.

The results of the executive functioning testing suggest that “daily tasks, such as getting dressed or completing schoolwork, are challenging, if not unmanageable, for [C.T.]”. [ 121 ] A Developmental Assessment for Individuals with Severe Disabilities was also performed. C.T. could not complete some of the tests due to his challenges in attending to and following directions. In her report, Ms. Gray notes that: [C.T.] is meeting his milestones for feeding and dressing, likely due to repetition and the low expectation for his age.

He is not demonstrating the executive functioning to meet milestones as age-appropriate expectations become more complex. The BREIF-2 indicates that once it is age appropriate for him to prepare simple meals for himself or decide what to wear based on task demands, [C.T.] is likely to fall behind his peers. [ 122 ] Lastly, C.T. underwent testing designed to measure Daily Activities, Social/Cognitive, and Responsibility Domains. The results in relation to Daily Activities demonstrated higher percentile scores, which indicate more functional skills.

C.T. “is doing as well or better than 64% of 7-year-old males in the daily activities domain”. However, C.T.’s scores in the other areas put him in the 6 th percentile, “which means he is significantly below most of his peers”. [ 123 ] In

summary, Ms. Gray notes in her report that: All three assessments indicate that [C.T.] is not meeting the age normative milestones. He is limited by executive functioning, and is clinically elevated most domains. As discussed, fine motor, academics, and language skills were not assessed. Otherwise, he is demonstrating the developmental milestones between 2 years 10 months in travel and safety to 4 years 6 months in the gross motor scale.

This is consistent with the PEDI-CAT results which indicate [C.T.] is in the 4th percentile for responsibility and 6th percentile for social/cognitive skills. [C.T.] will need ongoing support for his developmental needs. Recommendations will follow in a separate report.

Voice of Child Reports [ 124 ] The Respondent C.G. requested that Voice of Child reports (“VOC reports”) be prepared for the children in this case to obtain their views and preferences. The Minister opposed the request. In an oral decision, the Court ordered that VOC reports be prepared by Peter Cardy prior to the resumption of the trial. [ 125 ] The parties agreed that it was not necessary to call Mr. Cardy as a witness. I have carefully reviewed all three VOC reports. I will first refer to the VOC report for A.G., who was 9 years and 11 months old at the time she met Mr. Cardy.

In that VOC report, the following information was provided: [C.] reports that she believes her Mom no longer uses substances, but she does think that her Father is currently using substances. [C.] reports that she figured out on her own that her father was currently using drugs, and when she asked her mother if she was correct; her mother confirmed her suspicions. [C.] recalled being at home and finding beer in the crisper portion of the refrigerator after her parents came back from rehab; she stated that her mother still occasionally will drink a beer, but not very much. [C.] reports that she has seen her parents use alcohol and take drug tests. (…) [C.] reports that she is very close to her Nana, [T.L.]. [C.] said that she'd liked to go there on the weekend and after school every day because that is what she wanted to do. [C.] stated that she had been told her first word was Nana. [C.] said she still sees her Nana frequently, but not a lot because her Nana works much of the time. [C.] reports that she would like to live with her Nana, but she was told that she cannot live there by Jessica. [C.] continued expressing that she understands that she cannot go to nanas for weekends because she has never actually lived with her. [C.] reports that she feels this is a “dumb rule” because Nana is still her family even if she never lived there. [C.] reports that she enjoys being at nanas because her Aunt [Ch.] comes to visit from Edmundston and brings her cousins. (…) [C.] reports that she loves it at her foster home.

She states that she likes being there but would be very upset if the judge decided that she and her brothers must stay with [D.] and [B.] even longer because she wants to go home to be with her family. [C.] stated that even though both [D.] and [B.] are very kind to her and her siblings, they are not her family. (…) [C.] said that she does not think that her Dad has changed, and she does not think that it would be different at home because of that.

She stated that she does believe that her mom has changed because she is acting differently at the visits. [C.] reports that her Mom is not as quick to raise her voice instead she will “take a minute” to calm down first. (…) [C.] reports that thinking about [M.] passing makes her sad. [C.] reports that she was there when [M.] was laying on the futon and she was choking. [C.] stated that she did not know where her Mom was, and her Dad was in jail; She and her siblings were being babysat by [K.], but she does not know [K.]'s last name. [C.] said she was watching [M.] as the babysitter called [her mom.] and then called 911. [C.] reports that she understands that [M.] had a lung infection and that is what she died from. [C.] reports that one of her cousins does not like her mother very much and said that her Mother killed [M.]. [C.] reports that this is also the scariest moment that she can remember. [C.] stated that she saw her mother crying, [C.] reported that she didn't know exactly what was happening, but she went to her mother to try to comfort her. (…)

[C.] reported an incident that had with her cell phone. [C.] relayed that she was very proud to get this cell phone for herself, that she had worked very hard for it by doing all her chores for a year and she earned it. [C.] stated that just a few days after she got the phone, her Dad picked it up and put it in his pocket; she said he sold it for drugs. [C.] reports that she has asked her Dad to replace it several times, and he always says that he will when his check comes, however; she has still not had it replaced. [ 126 ] A.G. “expressed that she has a strong desire to go home with her Mother”.

She also advised Mr. Cardy that “if she and her brothers went back to live with their Mom, she would not feel safe if her dad was living there too.” In

summary, Mr. Cardy reported that: [C.] explained that she wants to go home to be with her Mother, because she has seen changes in her Mom's behavior and sees that she is doing a lot of work to be a better Mother to her and her siblings. [ 127 ] A.T. is currently 8 years and seven months old.

I highlight the following portions of his VOC report: [A.] stated that he did not like to talk about his family and that there were things that he is not supposed to say; he did not elaborate on what those things are. (…) [A.] reported that before moving to his Foster Home, he lived in a house with both of his parents and his siblings, [A.] and [C.].

He stated that he didn't remember many activities that he did with his family, however; referred to this time as “good” and “happy”. [A.] reports that he gets along with his brother and sister quite well. [A.] reports that his parents were kind and always made sure they had food; he said that his parents did not play with him very much. [A.] reports that during this time he and his siblings had “drills” what to do if “bad people” came into the house; [A.] reported that he practiced at this time going into the closet if he did not feel safe. (…) [A.] recalled that the reason he went to live with [D.] and [B.] is because his Mom and Dad got into a physical fight in front of him and his younger brother [C.], because someone said that his Mom killed [M.], his baby sister who is deceased. [A.] said he does not know how she died and that he was asleep when the ambulance came. [A.] reports that other people, including [Ac.] said that his Mom killed [M.], but he does not believe that. [A.] reported that his Dad got mad when talking to his Mom about [M.] and threw a coffee cup at his mother. [A.] reports that the coffee cup hit his Mom in the head and then his Dad began punching his mother in the head. [A.] said that he was scared that [C.] was going to get hit. [A.] reports that this is when he took [C.] and the two of them hid in the closet. [A.] reports that [Ac.] was not at home when this happened, she was at camp. [A.] stated that his mother did not call the Police when this fight happened, but two days later a Social Worker came with the Police, and they were taken out of their home. [A.] reported that this incident is the only time he can remember that he did not feel safe. [A.] said that because his father has ADHD, he can't control himself. [A.] said that he got angry when his Dad hit his Mom. [A.] reported that it is important to feel safe and that he thought before coming to live with [D.] and [B.] that it was his job to make sure his younger brother and older sister were safe and that he has always protected them. [A.] reports that he did not always feel like he could just be a kid, but he said that he knows that “being a kid” is really what his job is. (…)

[A.] reported that being in Foster Care makes him feel safe. [A.] stated that [D.] has a lot of rules about not being violent.

He reports that they must keep their hands to themselves, and not hit each other. [A.] reports that he likes to have these rules. (…) [A.] reported that he likes to learn about God and has a Children's Bible at his mother's house. [A.] reports that he is not worried about growing up and to be violent like his Dad because God is with him, every step of the way. (…) [A.] reports that when he was living at home with his Parents, if he had a problem with anything he would talk to his Mom and not usually his Dad; he said this was because his Mom was around more.

At the Foster Home, [A.] reports that he's able to go to [D.] and speak to her if he has any problems at school, or with his siblings. [A.] reports that [D.] gives him good advice and helps him to sort things out. [ 128 ] A.T. “wants to go home and stay there forever”. He “wants to live with his Mom, and if his Dad is allowed to be there, he would like that.” In addition, he “wants to live with A.G. and C.T.” and said “although he does not feel safe [in the area where he lives], he does feel safe when he is with his mother”. [ 129 ] In

summary, Mr. Cardy concluded in his VOC report for A.T., that “he misses living with his Mom, but he does like being at his foster home because he feels safe”. For A.T. “safety appears to be very important to [him] and he speaks of wanting to be safe frequently”. [ 130 ] C.T. was 7 years and 7 months old at the time Mr. Cardy interviewed him.

Here are some of the salient parts of C.T.’s VOC report: [C.] reported that his Mom and Dad got into a fight and Dad punched Mom “in the head”. [C.] reports that both he and his brother [A.] saw this happen. [C.] reports that he saw his Dad hit his Mom and it made him “angry and emotional”. [C.] confided that he doesn't like to see them fight, and does not like to see any blood, not even in movies. [C.] reported that his Mom did not bleed, but she cried and needed to have an ice pack. [C.] reported that he wanted to run away outside until the fight stopped, and then [A.] took him to the closet to hide. [C.] reports that he and his brother stayed in the closet together until his Mom told them it was okay to come out. [C.] reported that his downstairs neighbor, [Ca], came into their apartment and kicked his Dad out after this happened. [C.] stated that before seeing the fight he loved his Dad, but since seeing the fight he now hates his Dad and fears him. (…) [C.] reported that when he lived with his Mom before his baby sister [M.] died, his Mom would get up with them every day, but after she died, she didn't wake up and he and his siblings had to take care of themselves. [C.] reported that he was able to open the drawers in the kitchen to climb up and get food to eat out of the cupboards because he, [A.] and [Ac.] had to take care of themselves. (…) [C.] reports that no one has ever done anything bad to him except one time when he went to the splash park and another kid punched him in the head “like Dad did to Mom”. [C.] reports that he was with [A.] when this happened. [C.] reported an incident when he left the house alone and went to the park; He

said that he sneaked out without his Mom knowing; [A.] found him and brought him home. [C.] said that he doesn't remember what his Mom said but he knows that he was grounded and had to go to his room. [C.] reports that his Mom has never spanked him. [C.] stated that he knows when his mother is mad because she makes a mad face and then says “You're Grounded”. [C.] reported that when his Dad is angry with him, he sometimes will hit him with a belt over his pants. [ 131 ] C.T. wishes “to go home and live with his siblings and his Mom because he loves his Mom; he followed by stating in a matter-of-fact tone that he does not want to live with his Mom if his Dad lives there too”.

C.T. further stated that “he wants to stay at [D.]’s until Dad leaves”. [ 132 ] In

summary. Mr. Cardy noted in his VOC report that C.T. presented as honest, talkative and “with a great imagination”. C.T. reports “wanting to go home but does not want to live there if his father is living there”.

ISSUES [ 133 ] The first issue to determine is whether it is in the children’s best interests to grant the Guardianship Order sought by the Minister pursuant to s. 56(1) of the Family Services Act , S.N.B. 1980, F.-2.2 as amended (“ FSA ”). [ 134 ] If a Guardianship Order is granted, is post-guardianship access in the best interests of the children? [ 135 ] Lastly, is it in the children’s best interests to grant decision-making responsibility and a parenting order to T.L. pursuant to the Family Law Act (the FLA )?

LAW AND ANALYSIS POSITION OF THE PARTIES The Minister’s Position [ 136 ] The Minister alleges that the security or development of the children are in danger while in the care of the Respondents. More specifically, the Minister says that the Respondents’ conduct endangers the children’s “life, health and emotional well-being” and that the children reside “in a situation where there is domestic violence” pursuant to s. 31(1)(

d) and 31(1)(

f) of the FSA . [ 137 ]

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