THE MINISTER OF SOCIAL DEVELOPMENT, Applicant, – v. –, 2023 NBKB 29

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF MONCTON MSD v. A.B.-L.S, et al 2023 NBKB 029 FDM-557-2021 Date: 2023/03/03 BETWEEN: THE MINISTER OF SOCIAL DEVELOPMENT, Applicant, – and – A.B.-L.S., J.M., J.A., M.K., and C.J., Respondents. DECISION BEFORE: Madam Justice Colette M. d’Entremont AT: Moncton, New Brunswick DATE OF HEARING: February 1 st , 2 nd , and 3 rd , 2023 DATE OF DECISION: March 3, 2023 APPEARANCES: Karen LeBlanc and Marie-Pier Clavet, on behalf of the Applicant Joshua Adams, on behalf of the Respondent A.B.-L.S.

Stephen Diamond, on behalf of the children J.M. and J.A. did not appear at the hearing as they had previously consented to the Application. M.K., and C.J. were not present at the hearing. D’ENTREMONT, J. INTRODUCTION [1] On October 1st, 2021, the Minister of Social Development filed a Notice of Application requesting the Guardianship of four children. The Minister is requesting that the custody, care, and control of, and all parental rights and responsibilities with respect to the children betransferred on a permanent basis to the Minister pursuant to subsection 56(1) of the Family Services Act, being

chapter F-2.2 of the 1980Statutes of New Brunswick and amendments thereto. [2] The Respondent mother, A.B-L.S. opposes the Minister’s Application for Guardianship. She is of the view that she has noweaknesses preventing her from parenting the children and that she has addressed all of the Minister’s concerns. Ms. S. advances thatshe has followed a parenting course and she has dealt with her mental health issues. She argues that the children should be returned toher care. [3] The Respondent fathers, J.M. and J.A. consented to the within Application.

The Respondent fathers, M.K. and C.J. did notparticipate at the hearing. [4] The lawyer for the children supports the Application of the Minister. EVIDENCE [5] The bulk of evidence of the Minister consists of about thirteen affidavits filed in the within matter. Most of the deponents of theaffidavits were cross-examined at the trial. [6] The affidavits contain descriptions of events having occurred while the deponents of the affidavits were not present.

Thesestatements are admitted for limited purposes as they form a part of the narrative to assist me in understanding the chronological cohesion of the case and not to be used to prove the truth of its contents. (See paragraph 7.44, at page 444 of The Law of Evidence in Canada, 5th Edition, Sopinka, Lederman, and Bryant.) [7] As well, the affidavits of the Minister contain statements or concerns made know to the Minister by referrals in the community. These referrals did not testify, nor did they swear affidavits. The identity of the referrals, like informants, cannot be compelled by thecourt (R. v.

Leipert (1997) (SCC), 1 SCR. 281). However, if the referrals do not testify, the information they havedisclosed to the social workers is not admissible evidence before the Court. [8] Throughout the affidavits and during the oral testimony of the witnesses there was reference to statements made by the children. Forexample, there was reference to what the children said to their foster parents, to the social workers, to the psychologist, Robert Doucet, orto the counsellor, Ms. Lanteigne. [9] An out-of-court statement made by a child must be necessary and reliable in order for it to be admissible.

In order to determine if thechild’s hearsay statement is sufficiently reliable to be admitted into evidence there are some factors to be considered. These include the

timing of the statement, the child’s personality, intelligence, and understanding, whether the child was pressured into making the statement, and whether the witness giving evidence to prove the child’s statement has a vested interest in the outcome of the case. The hearsay statement of a child could be admissible if it is trustworthy given the conditions when it was made and any corroborating evidence. See paragraph 26 of Minister of Social Development of New Brunswick v.

J.L. and J.F. , 2022 NBQB 84 : [26 ] In addition to being necessary, an out of court statement made by a child must also be reliable in order for it to be admissible. In the recent Ontario decision of Y.M.S. v. R.O.S. , 2021 ONSC 6684 , Justice Doi summarized the reliability requirement at paragraphs 34 and 35 of his decision which I find helpful. He wrote: The requirement for threshold reliability asks whether the child's hearsay statement is sufficiently reliable to be admitted into evidence: Bradshaw at para 24; Khelawon at para 49; G.S . at para 12.

Threshold reliability requires a consideration of all relevant factors surrounding the statement, such as the timing of the hearsay statement, the demeanour of the witness that is testifying, the child's personality, intelligence and understanding, and the absence of any reason to expect fabrication, which are non-exhaustive factors: Y . at para 134 ; Khelawon at para 51; Khan at para 30.

The court must be satisfied that the statement was accurately and objectively reported, and that the child was not manipulated, coerced or pressured into making the statement: Ward at para 15; Children's Aid Society of Metropolitan Toronto v. M.(R.) , [1992] O.J. No 1097(CJ) at paras 15-16 . The court should also consider whether the witness that is giving evidence to provide the out-of-court statement has a vested interest in the outcome of the case; Ward at para 17.

A hearsay statement is admissible if substantive reliability is established, namely that the statement is inherently trustworthy given the conditions when it was made and any corroborating evidence: Bradshaw at para 30; Khelawon at paras 4, 62 and 94-100; G.S . at para 16. [ 10 ] At the time of the trial, the two youngest children, Lo. and Li., were aged 5 and 3. I have disregarded all statements made by these boys to foster parents, support workers, social workers, or to their mother as they are too young and immature to fully appreciate the truthfulness of what they say.

The statements made by them are not reliable and not admissible. [ 11 ] As for statements made by N. who was 7 years old at the time of the trial. I have given very little weight to out of court statements made by her. She was described by the psychologist, Robert Doucet as jumping around and having difficulty settling down when being questioned by him. Also, during the within hearing a video of a supervised visit between Ms. S. and the children was played.

It appears that on that day, the children are saying they want to return to live with their mother, which is the opposite to what they supposedly said to the other caregivers. What I have observed in the video is that the children say what will please the adult who is speaking to them. [ 12 ] I have taken into consideration the statements made by A. in relation to Ms. S. hitting the children, yelling at the children, and as to where A. would like to live, especially when A. spoke to Mr. Doucet and Ms. Lanteigne. The reasons being that the statements made by A are more reliable and trustworthy.

He was 8 years old at the time of the trial and described as intelligent. Mr. Doucet and Ms. Lanteigne are not employees of the Minister and do not have a vested interest in this matter. The manner in which Mr. Doucet and Ms. Lanteigne questioned A. was not suggestive or leading in nature. As well, the statements made by A. regarding the physical discipline by Ms. S., the yelling by Ms. S. and as to where he wants to reside, were consistent over time and were corroborated by other evidence.

FACTS [ 13 ] The children who are the subject of the Guardianship hearing are A., born in the year 2014, N., born in the year 2015, Lo., born in the year 2017, and Li., born in the year 2019. [ 14 ] Ms. S. and M.K. are the parents of A. Ms. S. and J.M. are the parents of N. Ms. S. and J.A. are the parents of Lo. Ms. S. and C.J. are the parents of Li. The children have been in the consecutive custody of the Minister since September 24 th , 2021. The family has been known to the Minister for a number of years. [ 15 ] Following the birth of the first child, A, he was placed into the care of the Minister.

A six-month custody order was granted for the period of August 15 th , 2014, to February 15 th , 2015. At the time Ms. S. was 17 years old and she was also placed under the care of the

Minster. On August 11 th , 2014, Ms. S. and A were placed in the same foster home. [ 16 ] On February 12 th , 2015, the Minister filed an Application for Guardianship regarding A. [ 17 ] On April 4 th , 2016, Ms. S.’s grandparents, G.S and D.S. were granted sole custody of A. The Minister’s Application for Guardianship was then discontinued. [ 18 ] In April of 2018, Ms. S. regained custody of A. [ 19 ] On […], 2015, the second child, N., who was just born was placed in Protective Care. The Minister’s concern was Ms. S.’s inability to parent the child.

A six-month custody order was granted for the period of […] to March 3 rd , 2016. [ 20 ] Between November 4 th , 2015, to August 2 nd , 2016, Ms. S. lived in Moncton, Saint John, and Sussex. She had a number of different partners. At times, she lived in a transition house, other times she lived in a homeless shelter. [ 21 ] On August 18 th , 2016, the Minister filed an Application requesting Guardianship of N. One year later, the Application was discontinued on July 10 th , 2017. By then Ms. S. had demonstrated changes in her lifestyle, she had support and was in a stable relationship with Mr. A.

The Minister closed the file in November of 2017. [ 22 ] When the third child, Lo. was one year old, he was admitted to a local hospital where he remained from November 2 nd to November 19 th , 2018. Lo. suffered from Lymphadenitis, a bacterial infection of the lymph nodes causing swelling around the neck and lower face. At the time of admission, Lo. was observed as having a cut on the side of head, a bump on the right side of his forehead, bruises, scratches on his cheek and dried blood on his face.

The toddler was filthy, and his diaper had not been changed for some time. [ 23 ] On November 19 th , 2018, A, N, and Lo. were taken into protective care by the Minister. [ 24 ] On November 26 th , 2018, Lo. and A were placed with Ms. S.’s mother, E.S. N’s father, Mr. A., did not agree that N. be placed with E.S. so the Minister filed an Application for a six-month custody order regarding N. In January of 2019, Mr. A. agreed that N could be placed with E.S. therefore, the Minister discontinued the Application for the custody order. [ 25 ] On December 13 th . 2018, Mr.

J. was released from prison, and he went to live with Ms. S., while he was under house arrest. [ 26 ] On January 29 th , 2019, the children returned to Ms. S.’s care as she was cooperating with the Minister and participating in the services. On June 4 th , 2019, the Minister’s file regarding this family was closed. [ 27 ] On May 28 th , 2020, Mr. J had allegedly choked N. As a result, Mr. J. was arrested and released on June 1 st , 2020. A no contact order was issued such that Mr.

J was not to contact the four children. [ 28 ] On June 4 th , 2020, the Minister received information pertaining to physical abuse, neglect in relation to Ms. S.’s family. The Minister was also made aware, that Mr. J was not following the no-contact order and was in the presence of the children. A Notice of Protective care was served on Ms. S. regarding N., Lo., and Li. The oldest child A. went to live at the great grand parent’s home. [ 29 ] On July 7 th , 2020, Eric Robichaud, social worker with the Minister attended at the home of Ms. S. At the time Ms.

S. indicated that nothing was wrong with her parenting abilities.

[ 30 ] On September 18 th , 2020, the Minister agreed that Li. and Lo. would progressively return to Ms. S.’s care in October of 2020 and A. and N. would return in November of 2020, so long as Ms. S. showed progress and stability. Following this decision, Lo., and Li., were returned to her on October 15 th , 2020. [ 31 ] On November 30 th , 2020, N. was returned to Ms. S.’s care. The oldest child, A. continued to reside at his great grandparents’ home. [ 32 ] In November and December of 2020, the Minister had information that Mr. J. was present at Ms.

S.’s residence while the children were around. [ 33 ] On December 7 th , 2020, the after-hours social worker, Janick Godin, attended at Ms. S.’s home. There were six RCMP vehicles present. The police officers entered the home. There were two teenagers present, who had no contact orders between themselves. Ms. S. denied that Mr. J was there. However, a window in the back, which had previously been closed, was open. Mr. J’s cellphone and wallet were observed to be on the table inside the home. Given the proof that Mr.

J had been at the home that night, Lo., Li., and N. were taken to the foster home. [ 34 ] The children remained in the foster home until the end of the six-month Custody Order, that is December 11 th , 2020. [ 35 ] On December 20 th , 2020, a Safety Plan was signed stating that Mr. J. would not have contact with Lo., N. and, A. He was allowed to contact his son, Li. On December 21 st , 2020, the Minister returned Lo., Li., and N. to Ms.

S.’s care. [ 36 ] During the period of December 11 th , 2020, to August 2021, the Minister received 16 referrals pertaining to physical abuse, emotional abuse, and neglect regarding Ms. S.’s family. The schoolteachers at Evergreen Park School expressed concerns regarding A. and N.’s poor attendance and tardiness. There were referrals that Mr. J was at Ms. S.’s home. These concerns were addressed with Ms. S., by social worker, Eric Robichaud. [ 37 ] By May of 2021, the children were arriving at school on time. They had access to the school lunch program. Ms. S. was no longer with Mr.

J., but was in a relationship with a gentleman friend, P.W. [ 38 ] On June 15 th , 2021, Ms. S. admitted to often raising her voice when addressing the children. [ 39 ] On June 29 th , 2021, social worker, Stephanie Savoie saw N., who had visible bruises on her back. It became evident that N. was not bathed often enough. On that day, N., Lo., and A. were placed with relatives for seven days. [ 40 ] On June 30 th , 2021, social worker, Mr. Robichaud met A. at school, A. disclosed that Ms. S. spanks the children on their buttocks with her hand and she taps the children on their legs. A. disclosed that Mr.

W. had kicked him. [ 41 ] Later that day, Ms. S. admitted to Mr. Robichaud to tapping the children on their mouth as a form of discipline. Ms. S. admitted to Mr. Robichaud that she yells at the children as they do not listen to her. The children were returned to Ms. S.’s care on July 6 th , 2021. [ 42 ] On August 24 th , 2021, Mr. Robichaud visited Ms. S.’s residence. The home was clean, the children appeared well, and Ms. S. had plenty of food. The Minister’s file was closed on August 26 th , 2021. [ 43 ] On September 23 rd , 2021, social workers Camille Robichaud and Annick Levesque attended at the home of Ms.

S. The latter

disclosed to Ms. Robichaud and Mr. Levesque that she was under a lot of stress, and everyone relied on her for money. Ms. S. admitted to raising her voice when the children did not listen, and if they did not listen, she would spank them on the buttocks. On that day, Ms. S. admitted that A. and N. were late for school. While she was in the residence, Ms. Robichaud observed piles of dirty clothes in the hallway of the home and the boys’ bedroom was described as messy to the point that one could not walk through the room. [ 44 ] On September 23 rd , 2021, Ms. Robichaud spoke to A. at school.

A. disclosed that his mother wanted to commit suicide. A. said his mother had slapped Lo. on the side of the face. A. revealed that Ms. S. and Mr. W. were fighting that morning, A. disclosed that Mr. W. hits the children on the buttocks. A. said Mr. J. was around Ms. S.’s home on […], 2021, his birthday, A. verbalized he was fearful of his mother and wanted to live with his great-grandparents. A. said his mother hit him to the point that afterwards it was difficult for him to sit down. He indicated that Ms. S. and Mr. W. call him names such as dumb and stupid. [ 45 ] Also, on September 23 rd , 2021, Ms.

Levesque and Ms. Robichaud returned to Ms. S.’s residence, however, Ms. S. did not allow them to enter the home. [ 46 ] On September 24 th , 2021, Ms. Robichaud and social work student, Noella Nzimbu attended at the children’s elementary school. A. expressed that he was afraid of his mother if he spoke to the social worker. [ 47 ] A. disclosed that Mr. J was at their home and that Mr. J had hit him with a belt the previous year. [ 48 ] Also, on September 24 th , 2021, Ms. Nzimbu and Ms. Robichaud visited Ms. S. at her residence. When they arrived Ms. S. was screaming and yelling in the presence of the children.

Mr. J was on the speaker phone during the conversation. Ms. S. told the social workers she suffered from borderline personality disorder. As Ms. S. was yelling, the downstairs neighbour came outside. The dispute between Ms. S. and the neighbour escalated and the RCMP were called. As a result of what had transpired on that day and the previous day, the four children were taken into protective care. [ 49 ] On September 29 th , 2021, Ms. Robichaud attended at the children’s foster home. A. told Ms. Robichaud that they were safe at the foster home.

A. stated that his mother would hit him hard on the buttocks and that after he could not sit down. [ 50 ] On October 1 st , 2021, the Minister filed the within Application requesting a Guardianship order regarding the four children. At the time, the Minister’s concerns included physical abuse of the children, emotional abuse consisting of yelling, screaming, and swearing, lack of supervision of the children, allegations of Mr. J not respecting the no contact order, Ms. S.’s lack of cooperation with the Minister, Ms.

S.’s mental health, ongoing domestic disputes with partners in the presence of the children and the neglect of the children. [ 51 ] On October 8 th , 2021, Jocelyn Gaudet became the social worker who was assigned to this family by the Minister. [ 52 ] Following the taking into care of the children, supervised visits were organised so that Ms. S. could see the children. [ 53 ] Visits were scheduled to begin October 27 th , 2021, at the maternal grandmother’s house, E.S. The

schedule was such that Lo. and Li’s visits with their mother were scheduled twice per week for a duration of three hours each. [ 54 ] In November of 2021, weekly visits began for a duration of 2.5 hours with all four children at the maternal grandmother’s house. As well, there were supervised visits started for A. and N. These were scheduled twice per week lasting 2.5 hours each. [ 55 ] On November 24 th , 2021, Ms. S. would not allow the children to leave with the support worker after a supervised visit. Ms. S. was yelling and screaming, and the children were fearful. The RCMP were called in.

As a result of these events, the supervised visits were put on hold for a while, but on December 2, 2021, they resumed at the offices of the department. At first, visits for A. and N. were scheduled twice per week for 30 minutes. Later, these were increased to one hour. The supervised visits with Lo. and Li. were scheduled once per week for two hours. Later, another three-hour visit with the youngest children, was added to the weekly schedule.

[ 56 ] On March 17 th , 2022, all visits were placed on hold as Ms. S. was inviting Mr. J. to see Li. after the visit was scheduled to finish. Due to events during the visits, that is, that Ms. S. was unable to control her emotions, and the situation escalated in the presence of the children, the visits were placed on hold until Ms. S. accessed mental health services and she followed parenting courses. [ 57 ] By May 3 rd , 2022, the supervised visits resumed at the offices of the Department. By then, Ms. S. had contacted Josee Doucet of Mental Health Services.

Supervised visits with A. and N. were twice per week for a duration of 30 minutes to one hour. The supervised visits with the youngest two children were twice per week lasting either two or three hours. [ 58 ] By May 17 th , 2022, the supervised visits were held at Ms. S.’s residence. The visits with Li. And Lo. were twice per week for a duration of 2.5 hours each. The short, supervised visits with A. and N. remained as previously scheduled. [ 59 ] By May 31 st , 2022, the supervised visits were stopped for a while as Ms. S. had left the supervised visit with A. and N. As it turned out, Ms.

S. took the children to the family doctor as N. had said her head was hurting. The support worker followed Ms. S. and the children to the doctor’s office and then returned the children to the foster home. [ 60 ] By June of 2022, the Department offered to hold supervised visits at their offices, however, Ms. S. refused this offer. [ 61 ] On the last day of June of 2022, the visits resumed at Ms. S.’s apartment.

The supervised visit was held once per week for a duration of three hours with the four children and two-family support workers present. [ 62 ] On July 7 th , 2022, a second weekly visit was added with all the children at Ms. S.’s home for 2.5 hours in the presence of two support workers. During that visit, Mr. W was aggressive with one of the support workers. Mr. W and Ms. S. were swearing, Ms. S. grabbed Mr. W by the neck. Both of them told Andrea McKinnon, a support worker to leave their home and not to return to their residence.

Following the incident of July 7 th , 2022, the supervised visits were placed on hold once again. [ 63 ] From October 27 th , 2021, to July 7 th , 2022, 102 supervised visits were offered to Ms. S. She attended 76 visits, she refused to attend 15 visits, and 11 visits were cancelled by the support workers for various reasons. [ 64 ] The supervised visits with the four children recommenced on July 19 th , 2022; they were once per week on Tuesday from 9:30 a.m. to 11:30 a.m. with two support workers present. [ 65 ] During the August 9 th , 2022, supervised visit, Ms.

S. told the children that they did not have to listen to the support worker. [ 66 ] On August 23, 2022, a supervised visit took place at the offices of the Minister. Towards the end of the visit, Ms. S. prevented the children from leaving with the support workers so that they could return to their foster homes. Ms. S. was concerned that the children had been hurt at the foster home. For instance, A. disclosed that he had been hit with a metal pipe and N. indicated she had hit her head on something. Ms. S. yelled and the children were crying.

The children were saying they did not want to go to their foster home, but that they wanted to go to their mother’s house. The police were called. Eventually, the children left with the support workers and went to their respective foster home. A video of the events happening at this visit was played in the courtroom. It depicts a rather excited Ms. S., while Ms. Gaudet is trying to calm her. All the while, all the children are crying [ 67 ] The support workers observed the following during the supervised visits. • Ms. S. had difficulty controlling the children’s behaviours.

At times the children would hit one another, they ran around and screamed. Ms. S. did not redirect the children. When the support worker intervened, Ms. S. would be angry at the support worker. • At times Ms. S. was verbally aggressive towards the support worker while the children were present. She had difficulty applying parenting strategies. The support worker would sometimes end the visit early. On some occasions the RCMP had to be called so that the children could be returned to their foster home with the support worker.

• Ms. S. discussed topics that were not appropriate in front of the children. She swore a lot in the presence of the children. [ 68 ] Following the incident of August 23, 2022, the in person supervised visits were placed on hold as Ms. S. had struggled with maintaining her emotions during the visit and the police were called in to assist. Instead, the Minister organized weekly telephone calls between Ms. S. and the children. The children were brought to the Minister’s office for weekly telephone calls with their mother. The call lasted from 4:00 p.m. to 4:30 p.m.

Often, the two oldest children A. and N. did not attend the Minister’s office for the telephone call with their mother. This was because they refused to attend. [ 69 ] In late September of 2022, Ms. S. and Mr. W were no longer a couple. [ 70 ] On September 27 th , 2022, Ms. S. acknowledged to Ms. Gaudet that she sometimes yelled at the children and that she emotionally abused the children. [ 71 ] In October of 2022, Lo. was experiencing significant emotional behavioural regulation difficulties at school.

A full time Educational Assistant was assigned to Lo. [ 72 ] In early December 2022, the weekly telephone calls between Ms. S. and the children were changed to video calls. [ 73 ] By mid-December of 2022, Ms. S. began employment as a security guard. She was working eleven-hour shifts during the overnight hours, and earning $14 per hour. In the event that the children were returned to her, Ms. S. suggested that her mother or grandmother could care for the children whenever she worked overnights shifts. [ 74 ] Parenting session through Co-Aide with a parenting support worker were organized for the benefit of Ms. S.

They were to be once per week for two hours starting November 5 th , 2021. Between the said date to February 4 th , 2022, twelve parenting sessions were scheduled. However, Ms. S. attended only four sessions. By early February of 2022 the sessions were suspended as Ms. S. was not engaged in the service and she was not interested in participating in the sessions. In April of 2022, Gigi Legault of the Pregnancy and Wellness Centre of Moncton confirmed that Ms. S. had engaged in parenting sessions with her centre. By July of 2022, Ms. Legault confirmed that Ms.

S. had attended eight parenting classes in 2015 and in the spring of 2022, she completed six classes. In the fall of 2022, Ms. S. informed Ms. Gaudet that she did not want to participate in parenting sessions with Co-aide. In January of 2023, Ms. S. started parenting sessions with Ellen McNeil of Co-Aide. [ 75 ] In January of 2022, Ms. S. informed Ms. Gaudet that she had experienced a lot of trauma during her life. She wanted to attend therapy and counselling. Ms. S. informed Ms. Gaudet that she suffered from borderline personality disorder. Ms.

S. said she had started Dialectical Behaviour Therapy on her own after buying a book on the topic and learning about it. [ 76 ] By late January of 2022, Ms. S. indicated to Ms. Gaudet that she had contacted mental health services. By March of 2022, Ms. S. was on a waiting list for these services. [ 77 ] On March 22, 2022, Joseé Doucet social worker with Mental Health services informed Ms. Gaudet that she had been unable to reach Ms. S. since January 28, 2022. By late spring of 2022, Ms. Doucet told Ms. Gaudet that Ms. S. had attended two sessions with her and was engaged in counselling. Ms.

S. participated in telephone sessions with Ms. Doucet in the fall of 2022. [ 78 ] Maintaining suitable housing has been a problem for Ms. S. since the Minister filed the within Application in the fall of 2021. In September of 2021, Ms. S. lived on Logan Lane, in Moncton. The next month she lived on Joyce Avenue in the same city. By late October of 2021, Ms. S. indicated she was looking for an apartment. By November of 2021, Ms. S. was living with her mother, E.S. on Rockland Drive. Then in April of 2022, Ms. S. had secured housing on Kingsmere Court. By then, Ms. S. had a suitable two-bedroom apartment.

By August of 2022, Ms. S. was living with her uncle in Riverview. She then moved to the Fredericton Oromocto area. By December of 2022, Ms. S. was once again living with her uncle in Riverview. Ms. S. confirmed to Ms. Jocelyn Gaudet that she owed money to NB Housing and that housing assistance was not an option for her.

[ 79 ] At the time of the trial, Ms. S. was residing in a bachelor apartment with no window on Cameron Street in the city of Moncton. Ms. S. requested that her landlord install a window in the apartment. She was sharing these premises with a friend of hers. In the event that the children are returned to her care, Ms. S. said that she had inflatable air mattresses for the children to sleep on. [ 80 ] In February of 2022, A. and N. started counselling session with Jessica Lanteigne, a counsellor at EROS, Emotions Reactions, Options Solutions Inc. A. disclosed to Ms. Lanteigne, that Ms.

S. would hit him so hard that he could not sit down, that she was rude and that he did not want to go back to live with his mother. A. told Ms. Lanteigne his job was to protect his siblings from Ms. S. and Mr. W. Also, A. told Ms. Lanteigne he wanted to live with his great grandmother, G.S. first, his foster mother next, and Ms. S. last. RESPONDENT FATHERS [ 81 ] In the winter of 2021 to 2022, J.M father of N. was interested in having visits with N. at his mother’s house. Therefore, visits were scheduled to occur at Ms. D.’s home. [ 82 ] Mr.

M. revealed that he, his wife and their children lived in a two-bedroom trailer. The trailer was in poor condition, and they were having issues with rats. He was struggling to get affordable housing. Mr. M. told Ms. Gaudet that he had a history of drug use, but that he had been clean for three years. He admitted having a criminal record and having lost two children to the Child Protection Services in Nova Scotia. [ 83 ] In the spring of 2021, Mr. M. obtained new housing on Gagne Crescent in Moncton. His home was approved for visits with N. Only two short visits took place. By March 31 st , 2022, J.M. told Ms.

Gaudet he no longer wanted visits with N., and he wanted no more involvement with N. [ 84 ] As for J.A. in the winter of 2021-2022, he wanted telephone calls with his son, Lo. Therefore, phone calls were scheduled to take place twice per week. Only one phone call occurred. Afterward, Mr. A. did not participate in the calls. [ 85 ] In November of 2021, M.K. stated to Ms. Gaudet that he had no interest in his son A. [ 86 ] In the fall of 2021, C.J., Li.’s father sent emails to the then social worker, Ms. Robichaud and then to Ms. Gaudet. Then he stopped communicating with the social worker.

He did not attend meetings with Ms. Gaudet in June of 2022, when they were set up for him. In the summer of 2022, the no contact order between Mr. J and A., N. and L. was still in place. During the months leading to the within trial there was a warrant for committal regarding Mr. J. PSYCHOLOGICAL PARENTING CAPACITY REPORT [ 87 ] Robert F. Doucet, psychologist, carried out a Psychological Parenting Capacity Report with respect to Ms. S. and the four children. His report dated September 19 th , 2022, was entered into evidence. [ 88 ] At the trial, Mr.

Doucet was qualified as an expert in the field of psychological assessments and parenting capacity, and as such, Mr. Doucet was allowed to give opinion evidence. [ 89 ] Much of Mr. Doucet’s testimony was consistent with his report. The relevant passages of his report include the following paragraphs. [ 90 ] The psychological test results regarding Ms. S. are found on pages 3 and 4 of the report and read as follows:

Ms. S. was administered the Millon Clinical Multiaxial lnventory-IV, a test which measures various personality trait and disorders. The test results are of questionable validity due to the possibility of random responding. Her responses also suggest the need for social approval or naiveté about psychological matters. This person generally presents as energetic, ambitious and often exudes a contagious optimism. She tends to attract others into endeavours and exciting relationships. She may suppress or otherwise disregard healthy limits and boundaries, thereby creating distress and exhaustion in herself and others.

Ms. S.’s MCMI-IV profile suggests a disturbance of personality that is likely to manifest itself in highly problematic interpersonal exchanges. While she may convey a sense of control, authority and efficacy at times, this veneer belies either a basic inability or callous indifference to accurately understand personal limitations of others and their situation. This difficulty creates a social deficit that sets the stage for conflicts ranging from awkward misunderstandings to perpetual interpersonal turmoil.

She is disinclined to recognize any level of personal doubt and is likely to reject challenges to her agenda. Skepticism by others is likely to be ignored at first but she may become incensed, resentful if those misgivings become more substantiated. While this woman makes a good first impression and is quite capable of establishing promising friendships, relatively few of these relationships are likely to be long lasting. She may be unwilling to self-examine her role in difficult situations and she may engage in ever increasing reckless and erratic pursuits under periods of prolonged distress.

Given to deny realistic limit settings and self-accountability, she may seek out novel experiences and continue grasping for opportunities to the point of exhaustion. Most notable is her forceful and driven energy level. Emotionally excitable and intensely zealous, she is prone to present with a high degree of animation as she is to evince hot-headedness. Her tirelessness does not necessarily result in effective achievements, however and may turn to turbulence; she may become socially inappropriate and verbally assaultive. Her profile also suggests a generalized anxiety disorder.

Physical symptoms such as fatigue and insomnia may be present. As well as a variety of behavioural signs such as felling ill at ease and high strung. Her current anxieties may have been prompted by feelings of restlessness and emptiness or finding herself stranded with no one to lean on or nothing to anticipate. Another possibility is that she may be dramatizing her current distress to gain attention. Diagnosis to consider include generalized anxiety disorder.

The following personality configurations are to be considered as well: Compulsive Personality Disorder Unspecified Personality Disorder (Turbulent Style) [ 91 ] The analysis and recommendations of Mr. Doucet are found on pages 7 and 8 of his report. The relevant portions are as follows: Ms. S. has had several mental health diagnosis received throughout her youth and early adulthood which only serve to exemplify the complex nature of her personal dynamics and personality structure. What remains however is despite her assertions of being a competent and effective parent and a defender of her children's rights. Ms.

S. has shown what appears to me as an inability to completely focus on her children's needs especially in times of conflict and to appreciate the impact of screaming, yelling, fighting, police intervention on the children's emotional and psychological adjustment. What has resulted is that over time, all of these various incidents have a cumulative effect on the emotional and psychological adjustment of her children as is poignantly exemplified by A.’s recent comments of not

wanting to return to his mother's care. A.’s comments are but an example of what the other children may be unable to voice as expressively however show it in other terms such a behavioural dysfunction including expressions of anger. Ms. S.’s difficulties in following social norms and abiding by what the case plan suggested to her is a further example of how difficult it is for her to deal with authority figures and to lower her defenses when she finds herself in those types of situations.

Although she may look at this as her right to defend her children's rights, the very real effect of these disturbances is that it increases the children's level of anxiety and fear which ultimately contribute to their desire to want to avoid contact with their mother. Ms. S.’s own attempts to have a balanced and stable life have not been easy for her and her choice of partners has not led to long term success for her in those types of relationships. The ups and downs of these relationships only serve to add more drama to her life making it that much more difficult for her to attain balance and stability.

I recognize how difficult it is for Ms. S.to acknowledge these deficits in light of the fact of the difficulties she has experienced throughout most of her life. She has made attempts at mental health intervention however I did not identify any long-term involvement with these agencies.

Perhaps due to her assertion that she knows how to parent or then again that she doesn't see the benefit of these interventions, what remains is her difficulties to self-regulate her emotional output, her level of impulsivity, and her significant difficulty to recognize her own deficits and to accept guidance from others. [ 92 ] The final recommendation of Mr.

Doucet is found on page 9: As I reflect on the needs of the children and of how these children need to attain a better balance and stability as they continue to mature, I do not recommend that the children be returned to the care of their mother and thus support the Department of Social Development's application for guardianship. ISSUES [ 93 ] The issues in this matter include the following:

a) Should the Minister be granted a Guardianship Order with respect to the children?

b) In the event that a Guardianship Order is granted, should a right of access to the parents be reserved in favour of the children? ANALYSIS THE BEST INTERESTS OF THE CHILDREN [ 94 ] The Minister is requesting a Guardianship Order regarding the children transferring the custody, care and control of, and all parental rights and responsibilities with respect to the children to the Minister on a permanent basis pursuant to subsection 56(1) of the Family Services Act, 1980, S.N.B., Chap F-2.2.

Subsection 56(1) of the Act reads as follows: 56(1) The court may make a guardianship order transferring from a parent to the Minister on a permanent basis the guardianship of a child, including the custody, care and control of, and all parental rights and responsibilities with respect to, the child. [ 95 ] When disposing of an Application for Guardianship, the Court is required by subsection 53(2) of the Family Services Act to place above all other considerations the "best interests of the child." This term is defined under

section 1 of the Act as follows:

"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 to whom access to the child is granted and, where appropriate, each sibling of the child and, where appropriate, each grandparent of the child;

e) the merits of any plan proposed by the Minister of Social Development under which he would be caring for the child, in comparison with the merits of the child 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 through the achievement of his full potential according to his individual capacity; and

g) the child's cultural and religious heritage. [ 96 ] Taking into consideration, and referencing the criteria set out in the applicable paragraphs of the definition of “best interests of the child”, and applying them to the facts in this case, I conclude that:

a) Regarding the mental, emotional and physical health of the children and their need for appropriate care, at this stage, I doubt that Ms. S. can handle the four children’s mental and emotional health needs. Ms. S. still has difficulty dealing with her own emotional and mental health. She easily and quickly becomes excited and irrational and looses control of her own emotions. All of which is often observed by the children. In turn, the children become excited and irrational.

Although, she has always been active in seeking medical care for the children and wanting them to be seen by the family doctor, she has not yet acknowledged how her own out of control behaviour affects and influences the children. On numerous occasions Ms. S. has admitted to the social workers that at times she is overwhelmed with the task of caring for four children under the age of eight without the help of the children’s fathers.

b) As to the views and preferences of the children, at times, A. has indicated to Mr. Doucet and Ms. Lanteigne that he does not want to return to live with his mother, but that he would rather live with his great-grandmother or his foster mother. The three youngest children are too young to express their views and preferences in this regard.

c) As to the effect upon the children of any disruption to their sense of continuity, at the time of writing these reasons, the four children had not lived with their mother for the previous sixteen months. They were placed in three different foster homes. As far as living arrangements, since his birth, the oldest child, A. was taken into protective care at birth, and he resided in a foster home with Ms. S. for some time. Then he lived with his great grandparents under a kinship agreement. Then A. returned to live with Ms. S. who obtained a parenting order in her favour regarding him.

Afterwards, A. was taken into care by the Minister. Then he was returned to Ms. S. Again, he was once again taken into care and placed in a foster home. As for the second child, N., she was taken into care by the Minister after she was born. Then she was returned to Ms. S.’s care, only to be taken into care again and placed in a foster home. Then N. returned to Ms. S., but was taken into care and placed in a foster home again. Recently, A. and N. have been attending two different schools in two different communities. As for Lo., he was taken into care and placed with his grandmother.

Several months later, Lo. was returned to Ms. S. Then he and Li. were taken into care and later, they were returned to their mother. Then in September of 2021, all four children were taken into care where they remained at the time of the within trial. Furthermore, since A. was born 8 years ago, Ms. S. has had numerous residences and many male partners, most of whom were very poor choices. The children have not known much stability during their young lives.

d) As to the love, affection, and ties that exist between the children and their mother, I believe they love their mother, and Ms. S. loves her children.

e) The Minister’s plan is to have the children cared for by the foster parents who can provide them with the basic needs of lodging, food, clothing and nurturing. The Minister can ensure that the children attend school regularly. Ms. S.’s plan is to have the children return to her care. However, in the five months before the trial, Ms. S. had not seen the children in person given her emotional outbursts at the August 2022 supervised visit. Presently, Ms. S. lives in a bachelor apartment, with no window, along with a friend who has lost her own children as a result of the involvement by the Minister.

Nothing has changed regarding her inability to remain calm and to parent her children, as she has not addressed her mental health issues or her parenting weaknesses.

f) As to the need to provide a secure environment that would permit the children to become useful and productive members of society through the achievement of their full potential according to their individual capabilities, since the children have been in care, the Minister has ensured that the children’s behaviours have settled down and that they attend school or daycare. The Minister can continue to provide a secure and appropriate environment to assist the children in achieving their potential in accordance with their abilities. At this stage, Ms. S. cannot calmly handle the full-time care of four young children. This has become apparent on numerous occasions at the supervised visits.

g) As to the children’s cultural or religious heritage, the criterion was not mentioned during the hearing.

[97] Given Ms. S.’s difficulty to self-regulate her emotional output and Ms. S.’s pattern of not appreciating the effect of this on thechildren, it is unlikely that Ms. S. can, today, control and calm the children. As well, Ms. S. had very little in person involvement withthe children during the past five months, as her only access has been telephone or electronic access. It is difficult to conclude that Ms.

S.would be able to control and attend to the children’s many basic needs given her own limitations. [98] Relying on the conclusions outlined in these reasons, I am of the view that a return of the children to Ms. S. would put their stability,security, and development at risk. Overall, I conclude that it is in the best interests of the children that the Guardianship Order beissued. Accordingly, I grant the Guardianship order in favour of the Minister, transferring to the Minister on a permanent basis, allparental rights and responsibilities regarding the children.

RIGHT OF ACCESS [99] The Minister is not in agreement with a right of access being reserved to the children to see Ms. S. The Minister is of the view thatreserving a right of access to the children would not be in the children’s best interests. The primary reason advanced by the Minister isMs. S.’s inability to control her emotions and quickly become volatile at a supervised visit with the children. At the hearing, the Ministerwas unsure if the children would be placed for adoption. [100] In the event that the Court grants the Guardianship Order, Ms.

S. asked that a right of access be maintained for the children so thatshe can see them. [101] In New Brunswick (Minister of Health and Community Services v. L. (M.), (SCC), [1998] 2 S.C.R. 534, theSupreme Court of Canada ruled on the issue of the parents’ visiting rights once Guardianship has been granted. At paragraph 39,Gonthier J. outlines the principles to be considered when a court addresses the issue of visiting rights. This paragraph reads as follows: My consideration of whether access should be granted is based on the following principles.

First, there is no inconsistency in principlebetween a permanent guardianship order and an access order. Second, access is the exception and not the rule. Third, the principle ofpreserving family ties cannot come into play in respect of granting access unless it is in the best interests of the child to do so, havingregard to all the other relevant factors. Fourth, an adoption, which is in the best interests of the child, must not be hampered by theexistence of a right of access.

Fifth, access should not be granted if its exercise would have negative effects on the physical orpsychological health of the child. [102] In J.C. v. Minister of Families and Children, 2020 NBCA 24, Baird, J.A. explained that a determination of a right of access in theevent of an award of Guardianship requires a contextual approach, with the primary factor being the best interests of the children.

Thefollowing paragraphs of her decision are relevant in this regard. [12] Access to parents following the issuance of a guardianship order is considered in context; it is the right of the child, not that of theparent, and it is exceptional. Severing a child’s right to have access with his or her parent has significant consequences and is notundertaken lightly. In this case, there was evidence that both children had frequent access to their father, they knew him, and he wasbonded with them.

There is no doubt the father loves these children; however, that alone will not determine the issue of access andvisitation. (…) [16] In my opinion, the preservation of access following a guardianship order does not hinge exclusively, nor should it ever, on whether,or not, the adoption process would be hampered. The child’s best interests, in consideration of the evidence as a whole are the primaryconsiderations, above all else.

If it is found that the preservation of access following the issuance of a guardianship order is in a child’sbest interests, an order is appropriate. [103] In other words, whether a right of access to the parent is reserved depends on what is in the child’s best interests. Referencing thecriteria of the definition of best interests, two factors that need to be considered are their health – 1(a) – and their cultural and religiousheritage – 1(g). In order for children to know their identity and know who they are, they need to know their heritage and where they

came from and who their parents are. In regard to their health, the children should know the medical history of the parents to better understand any genetic concerns. [ 104 ] The Minister did not argue that a reserved right of access to the children would hamper their chances of adoption as there was no plan for adoption at the time of the within hearing. Starting with eight-year-old A and seven-year-old N. I am convinced they are old enough to have formed a bond with Ms. S. and that they will always remember her. Given their ages and relationship with Ms.

S. a right of access is reserved to them to have access to Ms. S. As to the two youngest children, Li. and Lo., I also reserve a similar right of access to them for the reason that what I have given to the two oldest children, it is only fair that I give to the other children. [ 105 ] Therefore, for these reasons, I conclude that a right of access to Ms. S. is in the best interests of the children. The children have been moved around a lot during their young life. Presently, they are in three separate foster homes. They are old enough to know that they have each other.

It is important that a right of access to each other be maintained. Therefore, the children are reserved a right of access to each other. See paragraph 151 of Minister of Social Development (New Brunswick v.

C.P, D.L and G.C. and S.P. , 2022 NBKB 288 DISPOSITION [ 106 ] Pursuant to subsection 56(1) of the Family Services Act , I grant a Guardianship Order, transferring to the Minister, on a permanent basis, all parental rights and responsibilities of the children, A., born in the year 2014, N., born in the year 2015, Lo., born in the year 2017, and Li., born in the year 2019. [ 107 ] The children are reserved a right of access to Ms. S. As well, the children are reserved a right of access to each other.

DATED at Moncton, N.B., this 3 rd day of March 2023. _______________________________________ Colette M. d’Entremont Justice of the Court of King’s Bench of New Brunswick