THE MINISTER OF SOCIAL DEVELOPMENT, Applicant - v. –, 2022 NBKB 171

FDSJ-248-2018 2022 NBKB 171 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 – S.H. and C.B., Respondents DECISION BEFORE: Madam Justice Danie Roy AT: Saint John, New Brunswick DATES OF HEARING: August 8, 9, 10, and 11 2022 DATE OF DECISION: September 21, 2022 APPEARANCES: Nancy J. Martel, on behalf of The Minister of Social Development Victoria Morrissey, on behalf of S.H. Patricia Gallagher Jette, on behalf of C.B. William H. Watts, on behalf of the children

Roy, J. OVERVIEW 1 ) The Minister of Social Development seeks guardianship for three children; A., J. and Z. The children are 10, 13 and 14 years old. The Minister supports a right of access being reserved for the children with their parents and between siblings, if it is in the best interests of the children. 2 ) The Respondents S.H., the mother and C.B., the father, are the biological parents of the children. They both oppose the Minister’s Application. They wish to parent separately. 3 ) The mother seeks primary care of the children.

The father wishes to be involved in the children’s lives but acknowledges he would require assistance to parent A. and Z. If Guardianship is granted to the Minister, both parents request that a right of access be preserved. 4 ) All three children have been diagnosed with autism. They require assistance with daily tasks, for attendance at various appointments and ensuring they take their medications. The development delay of A. and Z. is important. They are both nonverbal and have significant needs. J. is verbal with moderate needs.

He does attend school and does fairly well. 5 ) The children have been in the care of the Minister since October 15, 2020, when Protective Care was taken. The concerns related to intimate partner violence, substance misuse, lack of appropriate supervision and not following through on services and support for the children.

Since then, A. and Z. have been in the full-time care of TARA house and J. has been with his foster family. 6 ) The parents had supervised visits with the children but the visits were put on hold on April 19, 2022, when the support worker at the visit reported an incident between the father and Z. The in-person visits have not been reinstated, but the parents have continued to communicate with the children, although inconsistently, by phone or messenger. 7 ) Still, the Minister acknowledges the children have developed a bond with the parents.

A. asks for his mother and although not in that last few months, J. has also asked to return to his parents. Z. does not show a preference either way. 8 ) The parents’ relationship is difficult with fighting and arguing in front of the children. At the time of the trial, they were separated. 9 ) The parents admit it is a challenge to meet the children’s needs. The mother admittedly struggles with substance abuse. Unfortunately, her struggles have worsened in the last couple of months. She disappears for a period of time and then returns home.

The father concedes he would not be able to care for A. and Z. without assistance. He admits that the last few months have been difficult. He also admits he did not make the efforts needed to reinstate in-person visits with the children since the month of April 2022. ISSUES 10 ) The issues in this matter are:

a) Is it in the children’s best interest that the Minister be granted guardianship of them?

b) In the event guardianship is granted, should a right of access be reserved for the children with their parents and between siblings? BRIEF HISTORY 11 ) The Minister has been involved with this family since 2009. 12 ) The children were placed in the protective care of the Minister on February 20, 2018. Effective February 22, 2018, the parents agreed to an up to three-month Custody and on May 18, 2018, the Minister was granted an up to three-month Custody Order.

The children then returned to the care of their parents. 13 ) On October 15, 2020, the children were again placed in protective care and they have been in the care of the Minister since then. Social worker Noemi Delgado was assigned to work as a case manager on October 29, 2020. 14 ) On October 20, 2021, the Minister applied for a Guardianship Order. As of September 15, 2022, the children have been in the care of the Minister for 23 consecutive months. THE CHILDREN 15 ) A. and Z. have been in the full-time care of TARA House (Community Youth Services) in Sussex since October 15, 2020.

Prior to that date, they had been attending TARA house for relief time, that is to provide respite for the parents. They both have challenging behaviours and they can be aggressive. They have hit and punched the staff TARA house. But they have adapted well there and benefit from support and also services to help improve their skills. 16 ) Heather Losier is a human service counsellor at TARA house. She works with A. and Z. She says that A. has limited coping strategies and becomes frustrated easily.

He has a limited ability to communicate but has had some success with PECS (Picture Exchange Communication System), which he has been using at TARA house. He is partially dependent on adults for daily living skills. He has issues getting dressed. He also has issues with personal care. If he has a bowel movement, he would make the effort to wipe but does not clean himself well. He also needs prompting to sit for a bowel movement and at times to void. When he bathes, he sits in the bathtub but does not clean unless staff are supervising and helping.

17 ) A. has made gains since being at TARA house. He does well in a routine. He is using the PECS book to communicate with staff. He spends time at Dorey’s Behavioral Services, and this provides him with community-based outings. It provides him with another setting in which to learn. 18 ) Z. has also limited communication skills and this is frustrating to him. He displayed many aggressions at school, where bonding was difficult. He does have a strong bond with the staff at TARA house. 19 ) Z. also tries to escape and at TARA house, they use a harness to avoid elopement.

While in the care of his parents, Z. has been found by the police wandering around, walking on the side of the road on his own and at night. In July 2020, Z. was found in a diaper, away from his home. On August 16, 2020, he was found approximately 4 km away from his house. He was also found outside his home on September 22, 2020. 20 ) Z. loves to be outside at TARA house, in the backyard, on the swing set and he also enjoys water play. He joins the other children to dance or play and enjoys the peer interactions. He has an interest in drawing treasure maps.

The staff has incorporated that into a reward system with completing required tasks and have used it as a learning tool to count trees, mountains, and also for backyard activities such as treasure hunt. 21 ) A. and Z. need to attend to many appointments to meet their needs. Ms. Losier describes what is required: Tara House staff have attended appointments with [A.] and [Z.].

These include Common Plan meetings, Pediatric and Psychiatry appointments, Residential Care Plan meetings, dental appointments, eye appointments, COVID-19 vaccination within home and meetings with Stan Cassidy. 11 Common Plan meetings were held with the school per year, four Residential Care Plan meetings with the Department of Social Development are held every three months, two Dental Appointments, two eye appointments, pediatrician appointments are impossible without a team of three people present. I attended a pediatrician appointment with [A.] and [Z.]. [A.] almost destroyed the office of Dr. Todd Lambert.

Four Stan Cassidy appointments via zoom calls and one in person appointment at Tara House for assessment by Stan Cassidy on July 12, 2022, one dental surgery, I handpicked a pharmacist to visit Tara house to give the boys their first Covid vaccine as the boys are fearful and aggressive. I also had two of the Tara House staff to attend [A.]’s dental surgery with me as [A.] is fearful and aggressive. It took seven people to tend to [A.] in order to have him sedated for his dental surgery.

Affidavit sworn July 28, 2022, page 123 of the Record on Application 22 ) Also, A. and Z. have prescribed medications that require monitoring, also described by Ms. Losier as follows: Risperidone-antipsychotic, Quetiapine-antipsychotic, Topiramate-used off label for weight maintenance, Escitalopram- antidepressant, Olanzapine-Antipsychotic med PRN, Aripiprazole-antipsychotic, Lorazepam-anti anxiety med PRN, PEGS (polyethylene glycol powder) stool softener, Vitamin D-supplement and Melatonin-for sleep cycle.

Affidavit sworn July 28, 2022, page 124 of the Record on Application 23 ) J. resides with his foster parents. He goes to school and successfully passed Grade 6. He has integrated his foster family well and gets along with the five other children. He has learned to do many things to help out, such as folding his laundry and putting his clothes away, organizing his room and personal items. He does the dishes and helps with yard work. He is forgetful and has to be reminded of things daily.

When he first integrated his foster family, he would not respond when asked what he wanted to do after high school but now he offers ideas. He went on a vacation to British Columbia with his foster family in July 2022. His foster mother, Brandy Robinson says he enjoyed the plane and visiting new places. He also went camping for the first time, which he enjoyed as well. 24 ) Ms. Robinson says J’s routine is as follows. He gets dressed, has breakfast, takes his medication, brushes his teeth and applies underarm deodorant.

He does typically need to be reminded of this process daily and she hands him his medication every morning. She said that they have had discussions about personal hygiene and he now regularly showers and applies underarm deodorant, which he did not do when he originally came to their home. 25 ) A. and Z. have a bond with their parents. A. struggles with the absence of family involvement. He asks to see his mother. J. also asks to return to his parents. However, in the last few months, he has not asked to see his parents. 26 ) J. does have a strong bond with his siblings A. and Z. 27 ) Dr.

Todd Lambert is the children’s pediatrician. He was qualified as expert in general pediatrics. Due to the Covid 19 pandemic, he has not conducted a recent physical assessment of the children but has had telephone appointments with TARA house staff and also with Ms. Robinson. 28 ) He says the mother has attended medical appointments, more so than the father. She had the attention of the children and she tried to find ways to help them with everyday life, as it was difficult for her to manage the children. 29 ) He agrees that the Covid 19 pandemic has had a profound effect on families.

However, he says that autism is a lifelong disability. In his opinion, it will be very challenging for A. and Z. to live on their own and it is not likely that they could live independently. They need 24-hour supervision. They continue to escalate with behaviours, there is a flight risk, and they need to be watched so they don’t hurt themselves or others. If they attend school, they will need a full-time aid, routine and consistency. There are safety concerns for teachers and other children. J. is higher functioning but he also has ADHD. He can still have difficulties with everyday function.

30 ) Dr. Lambert says that with regards to the children’s emotional dysregulation, it is hard to identify one cause as it is multi- factorial. THE VISITS 31 ) From the time the children were taken into protective care, the parents had supervised visits with the children. Unfortunately, they have not had any visits since April 19, 2022. Also, prior to that date, they had not been consistent in attending the visits. They have cancelled many times, and sometimes a half hour before the scheduled pick up time for the children.

At times, the visits were cut short either due to the children’s behaviours or the inability of the parents to cope, even with in-home support. 32 ) Ms. Losier said that A. understands when he goes for a visit with his parents and is excited to go. He interacts with the calendar and shows he is looking forward to the visit. She does not believe that Z. understands and he does not seem to care either way. 33 ) In the last 6 months, the parents have called J. approximately three times.

On J.’s birthday this past summer, he called his father approximately five times as neither parent had called but still there was no answer. J. eventually went on Facebook messenger and his father responded. Ms. Robinson says they try to call the parents but they do not answer the phone calls. 34 ) Lydia-Ann Smith is a supervisor with Capital Family Services. Capital has supervised visits with the parents since November 13, 2020. Ms. Smith does the

schedule for the staff. Ms. Smith provided the number of visits and cancelled visits, which are as follows: • From November 13, 2020, to December 31, 2020, there were 22 scheduled visits. The parents attended 21 visits and cancelled one visit. • From January 1, 2021, to December 21, 2021, there were 144 scheduled visits. The parents attended 114 visits and cancelled 30 visits. • During the month of January 2022, there were six scheduled visits. The parents attended one visit and cancelled five visits. • During the month of February 2022, there were six scheduled visits.

The parents attended four visits and cancelled two visits. • During the month of March 2022, there were nine scheduled visits. The parents attended six visits and cancelled three visits. • During the month of April 2022, there were six scheduled visits. The parents attended three visits and cancelled three visits. There have not been any visits since April 2022. 35 ) Between January 1, 2022, and April 19, 2022, the parents cancelled 13 visits. 36 ) The last in-person visit was on April 19, 2022.

On that day, Danielle Robertson, the support worker who was supervising the visit, says the father went into the kitchen and Z. followed him. She heard a loud slap coming from the kitchen and then observed Z. coming into the living room holding his wrist in his left hand, crying and screaming. She observed the top of Z.’s right wrist, hand and forearm to be bright red. She reported this as an incident and the visit ended early on that day. The following day, Ms. Delgado tried to reach the father to discuss the event of the previous day without any success.

She decided to put the visits at home on hold until they could meet and started to explore the possibility of having the visits in Sussex. 37 ) Ms. Losier did not notice any redness when Z. returned to TARA house. 38 ) The father says that at the visit, on April 19, 2022, Z. was pinching and hitting. He does admit that since then, he should have reached out to resume visits with the children but says he was not sure what to do and he has been confused. He says the mother has not been herself and he has been trying to help her. INTIMATE PARTNER VIOLENCE 39 ) Domestic violence has been a concerned of the Minister.

The mother reported to Ms. Delgado the she and the father fight and argue. This happens in the front of the children. The mother also reported that the father calls her names. 40 ) Tanya White is registered social worker in private practice and she provides in-home counselling. She was asked by Ms. Delgado to work with the parents in their home. On August 20, 2021, she attended a supervised visit with Ms. Delgado. And after that, she scheduled appointments at weekly intervals with the parents. 41 ) On August 25, 2021, Ms.

White met with the parents and completed a bio-psychosocial assessment and a childhood history was taken. On August 30, 2021, she met with the father alone as he explained that the mother was sick and sleeping. On September 6, 2021, the mother cancelled because she did not feel well. On September 12,2021 when Ms. White arrived to the parent’s home, no one answered the door. On September 20, 2021, the mother met Ms. White in the driveway and cancelled the session because she was not feeling well. And on September 27, 2021, the father did not let Ms.

White into the home. 42 ) Due to the parents either cancelling without notice or simply not being home for the scheduled session, Ms. White suspended the counselling sessions.

THE PATENT’S LACK OF ENGAGEMENT WITH SERVICE PROVIDERS 43 ) Ms. Delgado has been working with the family since October 29, 2020. The most recent case plan signed by the parents dates back to August 16, 2021. It identifies that the parents are not always providing adequate care for the children such as adequate routine and food, medical attention and care, hygiene habits and supervision. Because the parents have not engaged in case planning, this case plan has not been updated since then. The parents have not met with Ms. Delgado to discuss their case plan since the beginning of 2022.

Also, they have missed scheduled appointments with the social workers. 44 ) This is an ongoing pattern. Between February 2021 and July 2021, there were several unsuccessful attempts by the Minister to meet with the parents to review the case plan. Also in-counselling with Ms. White was suspended given the lack of engagement. THE MOTHER SUBSTANCE MISUSE 45 ) The mother admittedly struggles with addiction. In the last few months, she appears to have lost weight and she disappears for a few days at the time. She self referred to Dr. Tracy Meyer, who provides addiction treatment therapy.

Heather Connell is a clinic administrator for Dr. Meyer’s practice, known as River Stone Recovery. As a clinic administrator, Ms. Connell’s duties include patient assessments, collecting urine samples from patients for drug urinalysis testing, charting patient progress on their Urine Testing Log, and consultations with pharmacists. 46 ) Ms. Connell explained that the mother is prescribed Suboxone and urine testing is to determine what medications to give to avoid an overdose, as the mother is using street drugs. Suboxone, which was prescribed to the mother, is a long-acting opioid.

It is a harm reduction approach. The hope is that the patient will use less street drugs and ideally, stop the cycle of addiction. A patient is not given Suboxone when they are too sedated as it creates the risk of an overdose. On July 6, 2022, Port City Pharmacy sent a facsimile to Dr. Meyer to advise that the mother had not received her Suboxone that day " as she was sleeping at the window ”, meaning she was too sedated to receive it. 47 ) The mother was to provide urine samples for testing once per month. Ms.

Connell says that the mother’s Urine Drug Testing Log indicates as follows for the year 2022: • In January 2022, [S.H.] did not

schedule an appointment and did not attend to provide a sample; • On February 2, 2022, and February 16, 2022, [S.H.] did not attend her scheduled appointment and therefore did not provide a sample; • On March 23, 2022, [S.H.] provided a sample which was positive for Amphetamines, Buprenorphine, and Methamphetamine; • On Mach 30, 2022, [S.H.] did not attend her scheduled appointment and therefore did not provide a sample; • On April 2022, [S.H.] did not

schedule an appointment and did not attend to provide a sample; • On May 18, 2022, [S.H.] did not attend her scheduled appointment and therefore did not provide a sample; • During the months of June 2022 and July 2022, [S.H.] did not

schedule an appointment and did not attend to provide a sample. Affidavit solemnly affirmed July 29, 2002, page 146 of the Record on Application. THE FATHER’S EVIDENCE 48 ) The father described that as a teenager he did volunteer work with the Sea Cadets and the Royal Canadian Legion. He did not graduate from high school as he was short three credits from graduating. 49 ) He moved to Moncton when he was 19 years old. He worked but eventually did a course at Moncton Headstart Recycle. He then moved to Alberta, where he worked in Banff and Canmore. He says he did very well in Alberta.

He eventually made his way back to Moncton, where he met the mother. He was 22 years old at the time. They decided to move to Saint John, New Brunswick. 50 ) Before A. was born, they were babysitting a lot and he says the mother was very good with children. They did not plan to have children and it just happened. At first, he was really nervous. When the mother became pregnant again with J., he started helping more and at that time, he says he was full time with A. 51 ) Around the time J. was born, they reached out to an early childhood development program. He explained he did not know anything about autism.

He did not know the signs and it was all new to him. They enrolled the children into stepping stones and they learned as they went. He did what he could. He does not remember many things from when the children were young and he says that it is because of the stress of the last couple of years. 52 ) When Z. started school, that is when the problems started. At the time, Z. was six years old and he could start school or remain with autism intervention services. The mother wanted him to remain with autism intervention services but the father says he overruled her.

He felt autism intervention services were not doing anything for Z., so he enrolled him in school. He says the principal of the school reported there was neglect and the reports continued every 3 months. It was one complaint after another from the principal and it was all related to Z. 53 ) He says people confuse autism with smarts . He also says he is going to love his children regardless until he gets it right, and that he is very persistent.

54 ) He believes that protective care was taken on October 15, 2020, because the mother failed to attend a Common Plan meeting at the school. He does not believe that protective care was justified. 55 ) From that start of the pandemic, J. was upset, and crying frequently. He had bonded with his teacher. It was confusing for J. at first but he being his father, he was with him every step of the way. J.’s teacher would come to the house and bring food. 56 ) J. realizes that his siblings are not included in a lot of things. He is very close with A. and Z. and very protective of them.

The father says that since April 2022, he has had contact with J. through messenger. While he can call anytime, J. is not the type of child that would want to call. The father says he is also not a phone person. When J. called from British Columbia, on his birthday, it was a regular, everyday conversation. The mother was not home on that day. 57 ) With regards to A. and Z., he acknowledges they will require help 24 hours a day. 58 ) The father says he has never been given a chance. He feels that Ms. Delgado has been favouring the mother. He says he does not get along with Ms.

Delgado, that she is mean to him, disrespectful and laughs at him. She talks down to people, says negative comments and insults. He says she has not said one positive thing to him. He also said she thinks he is verbally abusive to the mother for no reason. He denies being abusive to the mother. He feels that he is never believed. The father says he had a good working relationship with Ms. Delgado for the first two to three months.

Then, at a court appearance, she said that he had threatened to kill a support worker and also accused him of being under the influence. 59 ) The father admits that in the last few months, there is conflict between the mother and him regarding money. He says that the mother has started to hang out with the wrong crowd. The effect of the pandemic on the family was difficult. While most families got closer, they have become more distant. He has been living almost on his own since February 2022. 60 ) The father says he misses the children.

He says he is close to all three children, and so is the mother, that is when she is home. During the first three to four years, Z. and his mother were inseparable and they were tied to the hip . At some point, the mother distanced herself. 61 ) The telephone calls with the children last between 5 to 10 minutes. They understand the conversation and Z. can say a few words. He will repeat or say something, but he usually needs prompting. 62 ) The father says he wants to participate in services. He explains that at times, he tends to sleep a bit .

He reached out to mental health and he is waiting for them to call him back. LAW and ANALYSIS 63 ) The Minister requests a guardianship order pursuant to subsection 56(1) of the Family Services Act which provides as follows: 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. 64 ) It is well established that I must take a child-centred focus approach.

I need to place above all other considerations, the best interests of the children pursuant to subsection 53(2) of the Act which provides as follows: When disposing of an application under this Part, the court shall at all times place above all other considerations the best interests of the child. 65 ) The best interests is defined in

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; (

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 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. 66 ) The Minister has requested that I take into consideration the following affidavit evidence taken on a previous proceedings, pursuant to

section 9 of the Act : • Affidavit of Alice Jardine dated April 15, 2021 • Affidavit of Adrienne Carpenter dated April 19, 2021 • Affidavit of Julia Dickinson dated September 22, 2021 67 ) The Minister seeks to adduce this evidence on the basis that it forms a narrative and provides context. I have considered those 3 affidavits on that basis. 68 ) I note the mother did not testify and did not call any evidence at trial. The father attended part of the trial. He did testify on his own behalf but he did not call additional evidence. Best interest analysis 69 ) I now turn to the factors listed in the Act . (

a) the mental, emotional and physical health of the child and his need for appropriate care or treatment, or both; 70 ) The parents love their children but are unable to meet their needs. The parents have their own personal struggles and they struggle to meet the children’s needs. They have not shown a commitment to ensure appropriate follow-ups with the various services providers. 71 ) All three children have received a diagnosis of autism. They required consistency and routine. A. and Z. have high needs and J. has moderate needs.

They have medical needs and there are also safety concerns. 72 ) Z. tries to escape. While in the care of his parents, Z. has been found wandering around, walking on the side of the road on his own and at night. One time he was found by the police 4 km away from his house. 73 ) The children need to attend medical appointments and require services and assistance for daily tasks. There are currently many services in place to work around their needs. A commitment is required to ensure those services continue to be provided. The children also require assistance to take their medications.

The parents have not shown they are committed to ensure the children’s needs are met. They struggle to even attend the

schedule visits with the children. 74 ) The parents have missed numerous appointments and at times arrived late. They also miss scheduled appointments with the social workers. The father does acknowledge that he missed appointments because he was sleeping. Lately, even more so, the mother, who struggles with substance misuse, disappears for while and then returns. 75 ) Also, the parents have not shown a willingness to work with the Minister.

The last case plan was signed in August 2021 and they have not been willing to meet in 2022 to update the case plan. 76 ) The children are well adapted in their current placements, where their needs are being met. A. and Z. are well adjusted to TARA house and the staff. They benefit from various services and assistance, 24 hours a day. They have a routine and strategies are used for their safety, such as the use of a harness to avoid elopement or for learning opportunities such as communicating with the PECS book or drawing treasure maps. J. is also well-adjusted to his foster family.

He does well in school, gets along with the older children and has developed a routine to help with daily tasks. 77 ) Unfortunately, the parents are simply unable to meet the children’s needs.

b) the views and preferences of the child, where such views and preferences can be reasonably ascertained. 78 ) A. struggles with the absence of family involvement. He asks to see his mother. Z. does not seem to care either way. As for

J., while he has asked to return with his parents, in the last few months, he has not mentioned it.

c) the effect upon the child of any disruption of the child's sense of continuity. 79 ) The parents have inconsistently attended visits with the children since they have been in care of the Minister. Unfortunately, the last visit was in April 2022. 80 ) While the children have developed a bond with their parents, they have been in their current placement for almost two years now and they have all adapted well. A. and Z. have adapted well to TARA house. J. has adapted well to his foster family. He gets along with the other children, goes on vacation with the family and has developed a daily routine.

He does well in school. 81 ) In my view, the children’s sense of continuity would be better preserved if they remain in the care of the Minister. It is also my view that to return to the care of the parents would be very disruptive.

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. 82 ) Unfortunately, the parents have been inconsistent on attending visits. They have cancelled many visits, often stating they are sick. And importantly, they have not had any visits since April 19, 2022.

While there has been some contact through phone and messenger, in the last six months they have called J. approximately three times. 83 ) The mother did not testify and did not provide any evidence in this regard. 84 ) The father admittedly says he should have reached out to resume visits with the children but was not sure what to do. He says he has been confused. 85 ) Still, the children show a bond with their parents, who love them. There is also a bond between siblings. The father said that J. is very close with A. and Z. and very protective of them.

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 the child returning to or remaining with his parents. 86 ) The Minister’s plan is that J. would remain in foster care and A. and Z. would continue to live in an appropriate facility that will meet their special needs. The Minister supports a right of access being reserved for the children with their parents and between siblings . 87 ) Ms. Robinson, the foster mother says she assumes the long plan to be for J. is to stay with them.

She is prepared to continue to facilitate access with the parents if guardianship is granted. 88 ) Ms. Losier said there is space for A. and Z. to stay at TARA house. 89 ) The children have a bond with their parents and while there are concerns in terms of consistency, the Minister wishes to keep the relationship intact. The plan would be for the parents to visit the children in Sussex. The parents have not been consistent and the children need consistency. The frequency of the visits and whether they would be in-person or by telephone is not yet determined. 90 ) Ms.

Delgado said the telephone calls between the mother and A. and Z. go well. The parents do messenger with J., although it is not frequent. For in-person visits, it will depend on the parents' circumstances and the wishes of the children. She did mention to the parents the possibility of visits once a week, because at one point it was working well. 91 ) Patricia Scott, a supervisor in the Child Protection unit said that adoption is always an option, but that adoption would be challenging for A. and Z. The hope is that they would stay in their current placements, as their needs are being met.

With respect to J., he is doing very well with his foster parents and it is hoped that it will be a long-term plan. 92 ) Kim Marr is the Supervisor for the child in care program. If guardianship is granted, the children would integrate this program. She said the children will remain in their current placement if it is in their best interests. To make that determination, they will consider the recommendations of child protection. The children can also be part of the program after they have reached the age of 19, in a disability program or if they attend post-secondary studies.

The disability program is a voluntary program for people between the ages of 19 and 65, where they can live in a supported residence or live independently with support. While a child in care can be considered for adoption, it tends to be less common. It is an option if there is a match in the community, and if the child wants to be adopted. 93 ) Ms. Marr said they will facilitate access if in the best interest of the children, that is if it is positive and not harmful. They cannot support access if a parent is involved in drugs, or not showing up.

To determine if it is positive, she explained it is a team effort and they would look at all of the professionals involved, including counsellors and doctors. And access could change over time. The parents have had telephone access and that has been positive and they would recommend that it continue. As the parents have not had physical access for a while, it would have to be looked at. If a child is 13 and wants access, there would have to be significant reasons for them to refuse in-person access.

And if the parents want to see the children that are younger, they would do their best to facilitate it. 94 ) The mother did not testify and did not provide a plan to parent. 95 ) The father admits he does not have a plan to parent the children at the moment. He explains that the mother and him are working on a few things. He agrees that stability is good for the children and that given their needs, it would be hard on anyone to handle the children on their own. If it was just him, on his own, he would have to ask for help, as it would be physically impossible.

He says that A. and Z. need care 24 hours a day but he does not wish for them to be at TARA house permanently. He wants to be part of

their lives. He does see J. living on his own some day. He says he is doing very well in school and he believes he can be anything. 96 ) While there are uncertainties with respect to access and permanency in placements, the Minister has provided a plan. In my view, the Minister’s plan is feasible and also in the best interests of the children.

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 97 ) The parents have a conflictual relationship. They argue and they fight in front of the children. The father admits he has missed appointments because he is sleeping. This is concerning. 98 ) The mother substance misuse is also a significant concern. There are times when she disappears. 99 ) The father would like to be able to raise his children.

At the same time, he agrees the children need stability and that given their needs, it would be hard on anyone; it would be physically impossible to do. If it was just him, on his own, he would have to ask for help. 100 ) The parents are simply not in a position to provide a secure environment to the children.

g) the child's cultural and religious heritage. 101 ) This was not raised as an issue and this factor is not relevant in this case. FINDINGS AS TO THE MINISTER’S APPLICATION 102 ) Having considered the totality of the evidence and having considered the submissions, I find it is in the best interest of all three children, A., J. and Z. that guardianship be granted to the Minister pursuant to section 56(1) of the Act .

RIGHT OF ACCESS 103 ) The Minister supports a right of access being reserved for the children with their parents and between siblings, if it is in their best interests of the children. 104 ) The father’s counsel suggested that access should be specified to a minimum of one contact per week and that a review clause should be included in the order and refers to the decision of J.S.R. v. Children’s Aid Society of Ottaw a , 2021 ONSC 630 to support this position.

J.S.R. is a decision from the province of Ontario that considers the provincial legislation, the Child, Youth and Family Services Act , 2017, S.O. 2017 c. 14, Sched. 1 . In that decision, the Court found that sections 104 and 105 of the CYFSA make it clear that it is the court’s obligation to impose the terms and conditions of an access order and that it was an error of law for the trial judge to delegate the frequency and duration of the children’s access. The J.S.R. is distinguishable .

In that respect, the legislation in the province of New Brunswick is different. 105 ) Access to parents following the issuance of a guardianship order is the right of the child, not that of the parent. (see J.C. v. Minister of Families and Children , 2020 NBCA 24 ) 106 ) In person access was put on hold in April 2022 and neither parent made concrete efforts to reinstate in-person access. Telephone access has continued. The Minister is not opposed to in-person access but says it needs to be in the best interests of the children.

While there are uncertainties in the Minister’s plan, there is a lack of commitment and consistency on the part of the parents. 107 ) The Minister’s evidence is that access will be facilitated if it is in the best interests of the children and that the best interest determination with respect to access is a team effort that includes all the professionals involved and also that access can change over time. Ms. Robinson, the foster mother said she is prepared to facilitate access.

I am reassured by the totality of the evidence that access will be facilitated if it is in the best interests of the children. 108 ) I therefore order that a right of access is preserved on the part of the children with both Respondents, and also between siblings, to be exercised at the discretion of the Minister and in accordance with the best interests of the children.

DISPOSITION 109 ) Pursuant to subsection 56(1) of the Act , the Minister is granted guardianship of all three children, A., J. and Z. 110 ) A right of access is preserved on the part of the children with both Respondents, and also between siblings, to be exercised at the discretion of the Minister and in accordance with the best interests of the children. DATED at Saint John, New Brunswick, this 21 st day of September 2022. ________________________________________ Danie Roy Justice of the Court of King’s Bench

New Brunswick, Family Division