The Minister of Social Development v. I.B. and R.B. –, 2022 NBKB 170

FDW/39/21 IN THE COURT OF KING'S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF WOODSTOCK Citation: The Minister of Social Development v. I.B. and R.B. – 2022 NBKB 170 Date: 20220215 BETWEEN: THE MINISTER OF SOCIAL DEVELOPMENT, Applicant - and - I.B. and R.B., Respondents Oral Decision – Extension of Custody Order Date of Hearing: February 15, 2022 Date of Decision: February 15, 2022 Before: Justice Richard G. Petrie At: Woodstock, New Brunswick Appearances: I. Mae Florina for the Applicant

I.B., per se R.B., per se D E C I S I O N Petrie, J. (Orally) I. Introduction 1 . This decision is in relation to the Minister of Social Development’s (“Minister”) request for a six month extension to a custody order involving the respondents’ three children, M.B.#1 (born […], 2014), M.B.#2 (born […], 2015) and M.B.#3 (born […], 2016). The Minister’s application is brought pursuant to subsections 55(2) and 60(2) of the Family Services Act (the “ Act ”). 2 .

This Court granted the Minister the custody, care and control of the three children by way of my written decision dated July 30, 2021 and after a five day hearing. The decision is reported at 2021 NBQB 168 . I also ordered the conditions identified in the Minister’s (then) case plan to be attached to and form part of the Court’s order. 3 . The respondents, I.B. and R.B., are the biological parents of the three children. 4 . At the commencement of the hearing the parents requested an adjournment, which I denied for the reasons given at the time.

In short, one of the issues they raised was I.B.’s conflicting appearance at Provincial Court. That was taken care of by this Court delaying the commencement of the appearance before me. There was also an issue of alleged blood on documents that were served on them, but I am satisfied that, over eight days ago, the Clerk’s office had both scanned these documents to them, but also made available a clean copy of all documents which the respondents chose not to pick up. The last comment I make is that the Court operates on very tight timelines under this Act with a busy

schedule and there was not much, or any, flexibility that I had. 5 . Further, R.B. made a long opening statement which exhibited a fair amount of frustration at both the process, at the Minister and its representatives, and this Court. Both parents chose to remove themselves from this proceeding shortly after the Minister’s first witness was called. I will say that R.B., by way of his statement, made it clear his wishes that the children be immediately returned to the care of the respondents. 6 . The Minister filed its application for extension on September 20, 2021.

An interim extension of custody order was granted by myself effective September 29, 2021. 7 . The Minister grounds its application for an extension by reference to subsections 31(1) (b), (c), (

e) and (

g) of the Act . 8 . I wish to make a couple of preliminary comments that are critical to my decision. 9 . The first preliminary comment I make concerns the fact that I have already outlined in significant detail both the procedural background to this child protection dispute, but also set out much of the background to this family, and most importantly, the children’s lives in my July 30, 2021 written decision. That decision was not appealed and thus stands on its own. For obvious reasons,

reference must be had to that decision in order to fully appreciate the Court’s conclusions on the extension request by the Minister today. 10. The second comment I wish to make, and I wish to paraphrase what I recently stated, in part, in a decision reported asMinister of Social Development v. E.T. and J.P., 2021 NBQB 231, at paragraphs 3 and 4; a child protection case in the circumstances ofa custody extension. Context matters. It is critical to fully appreciate the specific circumstances of the Minister’s application.

Here, theMinister is seeking to extend an already existing custody order with respect to the three children, an order made following a five daycustody trial before me in July 2021. To be crystal clear, I.B. and R.B.’s objection to the application before me is not an opportunity forthem to appeal or retry the original custody order determination. That order was made and is assumed correct at that time. Instead, theissue before this Court is whether there is still a need for a continued temporary custody order of protection for the children. 11.

Key, of course, will often be whether the grounds that prompted the original order still exist and whether the childrencontinue to be in need of protection. The need for continued protection may arise from the existence or absence of the circumstances thattriggered the first custody order or from new circumstances that arose following the initial order. Furthermore, at all times the Courtmust pay preeminent attention to the best interests of these three children. The Minister maintains the burden of establishing its case inthis regard.

See generally former Supreme Court Justice L’Heureux-Dubé in Catholic Children’s Aid Society of Metropolitan Toronto v.M.(C.), (SCC), [1994] 2 S.C.R. 165 at paragraphs 35 to 37. 12. In short, the Minister’s case is that the respondent parents have not made any progress toward the case plan objectives inorder to allow this Court to conclude it safe to reunify this family at this time. 13. I have concluded that the three children remain in need of protection as that term is understood within the framework ofthe Act.

I also find the appropriate disposition is for the Minister to be granted an order of up to six months custody, care and controlextension for these three children. II. Evidence 14. The Court has had the advantage of having, mostly by affidavit evidence given the way today proceeded, from severalpersons relied upon by the Minister.

This included the lead social worker, Jessica Yorke, who also testified, but also co-lead socialworker Kendra Connell’s affidavits and supplemental affidavit, along with an affidavit from social worker, Tanya Pouchelu, whoconducted a further forensic interview of M.B.#1 in December 2021. The Minister also presented evidence today in court of childpsychologist Dr. Hilary Cartwright, who testified as an expert. It also provided affidavit evidence and reports from three teachers of thethree children from Priestman Street School. 15. Some of the most pertinent evidence includes: 16.

Neither parent has had any contact with the children for in excess of nine months due to the no contact order in placerelating to the pending criminal trials for each parent on the charges of assault or assault with a weapon allegedly on their children. TheCourt was informed by Ms. Yorke today that the parents have not even asked for an update of their children throughout this extensionperiod. 17. Consistent with the original case plan, the Minister attempted to engage the respondents in the following servicesrepeatedly: (

a) Scheduled and unscheduled visits into the family home to assess the safety and appropriateness of the home; (

b) Counselling for the respondents; (

c) Parent aide services for the respondents; and (

d) In person and telephone meetings with the Minister’s representatives. 18. Both parents have wholly refused all services offered by the Minister and, in fact, ordered by this Court in its July 2021decision. The parents have simply refused to cooperate in almost all respects with the Minister’s representatives. They have also largelyrefused to communicate with the Minister. There is clearly a total lack of trust between the parties. I also note that the respondentsrefused to participate in both the scheduling and rescheduling of the PPC meeting that led to the Minister’s decision to apply for the

extension. 19 . Despite an order of this Court made November 2, 2021, the parents have refused to participate in a psychological assessment with a parenting capacity component which was to be conducted by psychologist Robert Doucet. My recollection is R.B. himself had made it very clear early on, even perhaps at the time of that order, that they would not participate. 20 . According to the social workers’ affidavits of Ms. Yorke and Ms.

Connell, the respondents have relocated to a residence at 9032 Main Street, Bristol and they have refused the Minister entry into their home, despite the social workers making a number attempts. The respondents have also listed that home for sale and the Minister is unaware of their reasons or their plan. 21 . The respondents largely refuse to communicate with the Minister via telephone and request that any and all updates or communications be via email. 22 . The Minister sent some 12 or so registered letters to the respondents and those letters and email communications go unanswered. 23 .

The criminal charges pertaining to assault and/or assault with a weapon on the children by R.B. and I.B. are still before the Provincial Court. R.B. is scheduled to stand trial in May 2022 while I.B. was scheduled to enter a plea today, February 15, 2022. I understand that she entered a plea of not guilty and that her trial is scheduled for November of 2022. 24 . The cause of A.B.’s death remains undetermined and both the RCMP and Coroner investigations appear to be ongoing, the Court is told.

I do not have any evidence on that but I have been told that the Minister would have been notified and have not yet been. 25 . The concerns that have existed at the time the children came into care have not been mitigated or addressed in any way. 26 . I note the parents objected to the children receiving their COVID-19 vaccine when asked in December 2021. All three children, in fact, did get COVID at different times in January of 2022. 27 . M.B.#1 continues to make assertions of physical abuse by his father in a forensic interview in December 2021 with Ms. Pouchelu. 28 .

The children have moved from their initial foster home to a new one in the Fredericton area in the late fall of 2021. The Court has been advised the children are adapting well. All three continue to attend Priestman Street School. While M.B.#2 has some learning challenges, by and large all three have adapted very well. Report cards for all three support strong efforts and generally social and enjoyable children. 29 . M.B.#1 has attended two counselling sessions with Dr. Hilary Cartwright with respect to his own trauma, including the sudden and perhaps unexplained loss of his sister, A.B. III.

Law and Analysis 30 . The Minister’s application is pursuant to subsections 55(2) and 60(2) of the Family Services Act , SNB 1980, c. F-2.2 : 55

(2) The court may extend an order made under subsection (1) for additional periods of up to six months each, up to a maximum of twenty-four consecutive months including the period of the initial order and any period during which the child was in care under a custody agreement. (. . .)

60(2) The Minister may, after notice as set out in

section 52, apply to the court to have an order made under sections 54 to 58 varied,extended or terminated or to have another order made in substitution for or in addition to an existing order. 31. The Court, of course, takes subsection 53(2) into preeminent effect, which states: 53(2) When disposing of an application under this Part the court shall at all times place above all other considerations the best interestsof the child. 32. The definition of “best interests of the child” is also found in the Act: “best interests of the child” means the best interests of the child under the circumstances taking into consideration (

a) the mental, emotional and physical health of the child and his need for appropriate care or treatment, or both; (

b) the views and preferences of the child, where such views and preferences can be reasonably ascertained; (

c) the effect upon the child of any disruption of the child’s sense of continuity; (

d) the love, affection and ties that exist between the child and each person to whom the child’s custody is entrusted, each person towhom access to the child is granted and, where appropriate, each sibling of the child and, where appropriate, each grandparent of thechild; (

e) the merits of any plan proposed by the Minister under which he would be caring for the child, in comparison with the merits of thechild returning to or remaining with his parents; (

f) the need to provide a secure environment that would permit the child to become a useful and productive member of society throughthe achievement of his full potential according to his individual capacity; and (

g) the child’s cultural and religious heritage; 33. As the Minister noted in its brief, the

preamble to the Act recognizes the concept of minimum state intervention in the livesof families. However, this Court recognizes, first and foremost, that the Act is a child welfare statute (see Supreme Court of Canada inNew Brunswick (Minister of Health and Community Services) v. C.(G.C.), (SCC), 1988 S.C.J. No. 48). Furthermore, ashas been reinforced time and time again, the only applicable test is the best interests of the children. The best interests of the children ismade all the more critical in the context where their security or development is at risk. 34. The test of best interests is child-centric.

Best interests is analyzed from the children’s perspective and not from theparents’ perspective (see the Supreme Court of Canada decisions in Young v. Young, (SCC), [1993] 4 S.C.R. 3, andGordon v. Goertz, (SCC), [1996] 2 S.C.R. 27). 35. Again, I am of the view that the specific context of the Minister’s application before me is critical. This is a request toextend an existing order, an order that was made after a five day trial in July 2021. 36.

Notwithstanding the contextual approach to the extension application that I referred earlier by reference to the SupremeCourt of Canada decision in M.(C.); in M.(C.), the Supreme Court of Canada also emphasized a flexible and more all encompassingapproach. At paragraph 40, Justice L’Heureux-Dubé states:

40. Among the factors in evaluating the best interests of a child, the emotional well-being of a child is of the utmost importance,particularly where the evidence points to possible long-term adverse consequences resulting from the removal of the child from his or herfoster family and the return to his or her birth parents. The focus of maintaining family units is only commensurate as long as it is inthe best interests of the child, otherwise it would be at cross-purposes with the plain objectives of the Act, as Wilson J. noted inRacine v.

Woods, supra, at p. 185: . . . it is the parental tie as a meaningful and positive force in the life of the child and not in the life of the parent that the court hasto be concerned about. As has been emphasized many times in custody cases, a child is not a chattel in which its parents have aproprietary interest; it is a human being to whom they owe serious obligations. (Emphasis added) IV. Best Interests 37. Keeping the above principles in mind, I will review each of the criteria found in the “best interests” definition and inaccordance with the evidence before me.

I do not intend to discuss the “views of the children” as they are too young. Also, there was noevidence with respect to the children’s “cultural or religious heritage”. Mental, Emotional and Physical Health of the Children 38. I.B. and R.B. have not made the efforts, changes or commitments reasonably required of them in order to alleviate thechild protection concerns expressly found in the original order of mine. I am convinced that the children’s mental, emotional andphysical health would be at risk if they were returned to I.B. and R.B. at this time. 39.

The children have been in foster care now for approximately 11 months. The evidence suggests they are being properlycared for in terms of their mental and physical health. While I am concerned about the lengthy disruption to the family unit, thelegislation is focused on the welfare of the children first and foremost. A substantial risk to the children is sufficient for this Court to act. Disruption – Sense of Continuity 40. These three children have been subjected to some real instability in their young lives.

They have been removed from theirparents in March 2021 and then again from their first foster family in November 2021. While the parents wish a return of their children,they have simply chosen not to engage with either the Minister or, for that matter, this Court’s order. These conditions and orders havebeen made for the purpose of allowing for a possible reunification of the family. This Court previously expressly encouraged anddirected the parents to cooperate with the Minister, and indeed directed the Minister to extend full efforts to work with the family.

Unfortunately, the evidence suggests the parents have chose a different route. Love, Affection and Ties 41. I would repeat from paragraph 139 of my earlier decision Minister of Social Development v. I.B. and R.B.: 139. There is a undoubtedly love, affection and bond between the children and their parents. The children have no ties with any otherfamily in the area. In any event, love and affection is not enough to trump all other factors or definitively determine best interests (seeMinister of Social Services v. A.H. (1984), (NB KB), 59 N.B.R. (2d) 432 (NBCA)). Minister’s Plan 42.

As I stated at paragraph 140 of my earlier decision involving these parties, which continues to be my view: 140. Simply put, at present, this Court sees the Minister’s plan with the ultimate intention to reunite this family as the preferredapproach. The parents have wholly rejected there to be any justification for the Minister’s involvement or intrusion in the family’s life. The parents’ “plan” throughout has been to wholly reject any Ministerial concerns and to have the children returned to their care withoutany Ministerial involvement.

I understand the Minister intends to keep the children living with the foster family, where they are well

taken care of. The children will be receiving counselling to deal with the trauma of losing their sister, being taken into care and the likelihood they have suffered physical abuse. Secure Environment 43 . Reference must be had to my findings on this factor in my July 2021 decision. 44 . Regrettably, virtually nothing has occurred since that decision to ameliorate in any way my concerns. Indeed, little if any effort has even been attempted by the parents. This is most regrettable. V. Conclusion 45 .

I do not wish to repeat my conclusion from my earlier decision but will simply state that having considered the totality of the evidence in the context of the best interests of the children criteria, the Minister has established on balance, that an up to six months extension of custody, care and control of the three children is warranted. The child protection concerns identified in my earlier decision remain.

The parents are hereby forewarned that continued resistance to engage in the case plan services and their refusal to cooperate in even a basic manner will prove problematic to future reunification with their children. To I.B. and R.B. I say in conclusion it is not simply that this Court requires you to make the efforts, no matter how uncomfortable you are with those, but it is your children who require this. 46 . I will grant the order sought by the Minister. Ms. Florina, please draft it for my review and signature.