IN THE MATTER of a hearing under THE CHILD v. FAMILY SERVICES ACT, 2014 SKPC 109

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 109 Date: May 16, 2014 Location: Moose Jaw _____________________________________________________________________________ Between: IN THE MATTER of a hearing under THE CHILD AND FAMILY SERVICES ACT AND IN THE MATTER OF K.P., born [...], 2012 Appearing: Lyle Phillips For the Ministry of Social Services Unrepresented For the Respondents C.N., B.P. and Sakimay First Nation The parents and child are identified by initials in order to protect their identities. JUDGMENT M.

GORDON, J [ 1 ] The Ministry is requesting a permanent order pursuant to s. 37(2) of The Child and Family Services Act with respect to the child K.P., born [...], 2012. The mother C.N., the father B.P. and Sakimay First Nation were all served as required. No one appeared for the parents or Sakimay First Nation.

[ 2 ] Loreen Jarvis was called by the Ministry. She has been the child protection worker in charge of this file since May 2013. She testified that the child has suffered from severe seizures since she was four months of age. These seizures can last from a few minutes to several hours. Most recently the child suffered a seizure May 1, 2014 and was taken to Royal University Hospital in Saskatoon. This is known as Dravet’s Syndrome. Proper medication can help but as a result, the child will have lifelong difficulties and require extensive therapy. The parents have six other children.

The five eldest are with the maternal grandparents and the sixth child was made a permanent ward of the Ministry and has since been adopted. The parents have severe addiction problems. [ 3 ] There have been two previous interim orders of four months each, namely March 12, 2013 and July 16, 2013. Each time the parents agreed to obtain stable housing and deal with their addiction problems. The parents were offered a parent support worker and visitation to the child. A nurse had been arranged as well to help teach the parents about the proper care for this child.

The parents seemed to stabilize for a period from May to September 2013, but were reluctant to participate in the child’s care or medical appointments. The child has been with the foster parents since the time of the initial apprehension. [ 4 ] Ms. Jarvis notes that on December 17, 2013, the mother left a phone message for her requesting an adjournment of the Court proceedings. She did not leave any number. On May 6, 2014, the morning of this hearing, the mother called Ms. Jarvis saying she had a lawyer and wanted an adjournment. She was not able to provide the lawyer’s name.

Financial assistance for transportation to Moose Jaw was authorized for the parents. Previous to this call, Ms. Jarvis had spoken to the parents and someone from Sakimay First Nation about these proceedings. The parents said to leave the child at the foster parents, the same people who had adopted the older brother. Sakimay First Nation was prepared to respect the parents’ wishes. The baby is with A.M and T.M., who are very committed to her care and high medical requirements.

Exhibit P-2, a letter from the pediatrician caring for this child provides further details of this syndrome and the high level of medical attention and care that is required. [ 5 ] The Ministry is recommending that a permanent order is in the best interests of the child and that the Ministry would approve any application for adoption of this child that was made by the foster parents. [ 6 ] A.M. testified that she has been caring for this child since birth. The child is now 19 months old. She describes the child as “a beautiful child who is adored by her family”.

A.M. and her husband T.M. are committed to the baby’s care. A.M. said she attends medical appointments and participates in all aspects of the care. The baby is never left alone as she can quickly slip into a seizure and can have nine to 10 seizures a day. She requires medication and physical therapy as well. The child is doing well and A.M. describes her as being bright, alert and a happy child. [ 7 ] The foster family adopted K.P.’s older brother and have four boys of their own. They would like to adopt this child and have been told that the parents agree. The Ministry is seeking a permanent order.

The Ministry does not see any other option given the situation. THE LAW [ 8 ] The relevant portions of The Child and Family Services Act are as follows: 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. 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. 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; or (

c) the child is less than 12 years of age and: (

i) there are reasonable and probable grounds to believe that: (

A) the child has committed

an act that, if the child were 12 years of age or more, would constitute an offence under the Criminal Code , the Narcotic Control Act (Canada) or

Part III or

Part IV of the Food and Drug Act (Canada); and (

B) family services are necessary to prevent a recurrence; and (ii) the child’s parent is unable or unwilling to provide for the child’s needs. 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. [ 9 ] The first question to be addressed is whether the child K.P. is in need of protection. The next step is to determine an appropriate order under s. 37. There have been two previous interim orders with respect to K.P., namely March 12 and July 16, 2013 and each for a four month duration. The parents were to meet certain conditions that were clearly set out in the orders as follows: (

a) Secure and maintain a stable residence. (

b) Work cooperatively with Mental Health and Addiction Services and follow through with any recommendations and shall consent to the release of any results to Social Services. (

c) Complete drug screens as requested by the Ministry of Social Services and shall consent to the release of any results to Social Services. (

d) Attend regular visitation with K.P. (

e) Ensure that during any contact with the child, the child is not exposed to any drug or alcohol use or intoxication by anyone. (

f) Work cooperatively with an in home support worker. (

g) Demonstrate an ability to meet the child’s basic and special needs. (

h) Work cooperatively with the Ministry of Social Services. [ 10 ] The parents on August 6, 2013 consented to this order. [ 11 ] The parents showed some improvement from May to September. However this did not continue. The parents were reluctant to participate in any of the child’s special care and medical needs. The parents did not keep their regular visits with the child. [ 12 ] In S.F. (Re) , 2009 SKCA 121 , at paragraph 23 , the Court outlines the proper approach in these proceedings: In the instant case, the authority of the trial judge is found in s. 38 of the Act.

The task in the hearing before the trial judge, in her capacity as a reviewing judge, is to determine, at the time of the hearing and using as the point of reference the date the last order expired, whether the children continued to be in need of protection. If the children continue to be in need of protection, the task is to

determine which of the possible orders provided for in s. 37 of the Act is appropriate and applicable in the circumstances. InSaskatchewan (Minister of Social Services) v. E.K.S., (SK KB), [1996] 146 Sask. R. 46 (Q.B.), McIntyre J. set out thestatutory framework and the legal test to be followed. It is a two step process. First, determine whether the child is in need of protectionas defined in s. 11 of the Act.

If so, the second step is to determine the order among the options available as stated in s. 37 of the Act. [13] I am satisfied that on the date this application was made, being November 9, 2013, that the child was in need of protection. The parents were not capable of taking on the high needs requirements of this child. [14] Therefore, proceeding on to the second step in the proceedings, being what is the appropriate order under s. 37 of the Act, inE.K.S., (SK KB), 146 Sask.

R. 46, McIntyre J. sets out the principles to be followed by a Court when determiningwhether any of the options available in s. 37(1) are appropriate as follows at paragraph 44: Both the statutory framework and the case law provide clear guidance with respect to the issue of when, in this analysis, the best interestsof the child are to be properly considered. The court considers the best interests of the child once it is determined, by a consideration ofthe circumstances in light of s. 11 of the Act, that the child continues to be in need of protection.

In M.(C.), L’Heureux-Dube J. stated atpp. 193-94: … it is only after the threshold issue, as to whether an order is necessary to protect the child in the future, is affirmatively established thata court may have regard for the best interests of the child.

Further, the best interests of the child are to be determined on the basis of the specific legislative criteria as stated in M.(C.) at p. 201: … the best interests of a child under the Act are to be decided through the balancing of all the considerations set out in s. 37(3), includingconsideration for the family, the importance of the continuity of care, the child’s physical, emotional and psychological needs as well asthe other criteria set out in s. 65(3).

In determining what is in the child’s best interest, the Act provides extensive guidance. … [15] In making an order under s. 37 of the Act, the Court must consider the evidence available at the time of the hearing. TheCourt must look at many factors including whether there has been a change in circumstances or conduct of the parents since the lastorder, the nature of any resources suggested and the time frames. The Court of Appeal in S.F. approved the test as stated by McIntyre J.in E.K.S. as follows: ...

The question in every instance must be whether, on all of the evidence before the court, the court is satisfied sufficient change canoccur within the context of an order under s. 37(1) such that it is in the best interests of the child to make such an order. Given theobjective of the Act as set out in s. 3, a permanent committal does not ipso facto follow just because the parent has not yet turned thatnew leaf. [16] The protection worker from the Ministry described the high medical needs as well as other needs of the child at the presentand into the foreseeable future.

The letter from the pediatrician (Exhibit P-2) provides further detail. At present this child is extremely“high needs and requires around the clock care”. As a result, she has developmental delays that require many forms of medical and otherprofessional assistance. Any care giver must be able and committed to providing this high level of care around the clock. The fosterfamily have already adopted this child’s older brother, who is now four years of age.

The foster mother testified that she has cared forK.P. for some time and she and her husband are able and willing to continue to provide this comprehensive loving care. It is obviousfrom observing her testify that she has great love and affection for this 19 month old child. [17] It was relayed by the worker that the parents indicated they would come to Court today and consent to a permanent order. Alast minute phone call from the mother on the morning of the hearing indicated the mother had perhaps changed her mind and wasgetting a lawyer.

However, the mother could not provide the name of counsel and no one attended Court. There were no other telephonecalls or messages from the mother or anyone acting on the parents’ behalf. Financial assistance for transportation from the parents’home to Moose Jaw had been approved by the Ministry and the mother was aware of this. The only inference or conclusion from thissequence of events is that the mother was reacting as a mother on an emotional level facing the final stage in the process with theMinistry requesting a permanent order.

On a practical or realistic level, it is quite likely the parents recognize that they are unable tocare for this child. There is no evidence to indicate that there is any reasonable prospects of change within a reasonable time and withsuch resources as may reasonably be available for the parents. Therefore, applying the law to the evidence before me, I am satisfied thatthe Ministry has established that it is in the best interests of K.P. to be committed to the Minister on a permanent basis pursuant to s.37(2) of The Child and Family Services Act.

M. Gordon, J