IN THE MATTER of a hearing under THE CHILD v. FAMILY SERVICES ACT, 2011 SKPC 76

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 076 Date: June 16, 2011 Location: Melfort _____________________________________________________________________________ Between: IN THE MATTER of a hearing under THE CHILD AND FAMILY SERVICES ACT AND IN THE MATTER OF D.D., born May [...], 2000 T.D., born October [...], 2001 J.D., born January [...], 2004 Appearing: Kim Stonechild For the Ministry of Social Services Trent Forsyth For the parents, J.D. and A.D. The parents and children are identified by initials in order to protect their identities. JUDGMENT B. MORGAN , J INTRODUCTION: [ 1 ] The Minister of Social Services (the Minister) applies for an order pursuant to s. 37(1) (

c) of The Child and Family Services

Act , S.S. 1989-90, c. C-7.2 (the Act ) placing each of D.D., T.D. and J.D. in the custody of the Minister for a temporary period of six months. ISSUE: [ 2 ] The issues raised by this application are: 1. Is any child in need of protection? 2. If so, what is the appropriate disposition? LEGISLATIVE FRAMEWORK: [ 3 ] The Minister seeks an order pursuant to s. 11(a) (iii) of the Act declaring that D.D., T.D. and J.D. are children in need of protection. Subsection 11(

a) reads as follows: 11. A child is in need of protection where: (

a) as a result of action or omission by the child’s parent: (

i) the child has suffered or is likely to suffer physical harm; (ii) the child has suffered or is likely to suffer a serious impairment of mental or emotional functioning; (iii) the child has been or is likely to be exposed to harmful interaction for a sexual purpose, including involvement in prostitution and including conduct that may amount to an offence within the meaning of the Criminal Code ; (iv) medical, surgical or other recognized remedial care or treatment that is considered essential by a duly qualified medical practitioner has not been or is not likely to be provided to the child; (

v) the child’s development is likely to be seriously impaired by failure to remedy a mental, emotional or developmental condition; or (vi) the child has been exposed to domestic violence or severe domestic disharmony that is likely to result in physical or emotional harm to the child; [ 4 ] In the event that I find any of the children to be in need of protection, I must then make the appropriate order under s. 37 of the Act . The relevant subsections of s. 37 read as follows: 37(1) Subject to subsection (2), if the court determines that a child is in need of protection, the court shall make an order that the child: (

a) remain with, be returned to or be placed in the custody of his or her parent; (

b) be placed in the custody of a person having a sufficient interest in the child; or (

c) remain in or be placed in the custody of the minister for a temporary period not exceeding six months.

(2) If, in the opinion of the court, none of the orders described in subsection (1) is appropriate, the court shall make an order permanently committing the child to the minister.

(3) Notwithstanding subsections (1) and (2), the court may, if it is of the view that: (

a) a child is in need of protection; and (

b) by reason of the age of the child or other circumstances, it is unlikely that an adoption plan would be made if the child were permanently committed to the minister; order that the child be placed in the custody of the minister until the child attains the age of 18 years.

[ 5 ] In making an order under s. 37 , I am directed by subsection 37(4) to consider the best interests of the child. In addition, I may consider the recommendations of “the officer” who is the family services worker in the case before me. Under subsection 37(5), if I do make an order, I can impose any terms and conditions that I consider appropriate, and I can set terms of access. [ 6 ]

Section 4 of the Act sets out the factors I must consider when determining the best interests of the child.

Section 4 reads as follows: 4. Where a person or court is required by any provision of this Act other than subsection 49(2) to determine the best interests of a child, the person or court shall take into account: (

a) the quality of the relationships that the child has with any person who may have a close connection with the child; (

b) the child’s physical, mental, and emotional level of development; (

c) the child’s emotional, cultural, physical, psychological and spiritual needs; (

d) the home environment proposed to be provided for the child; (

e) the plans for the care of the child of the person to whom it is proposed that the custody of the child be entrusted; (

f) where practicable, the child’s wishes, having regard to the age and level of the child’s development; (

g) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity; and (

h) the effect on the child of a delay in making a decision. OVERVIEW OF THE EVIDENCE: [ 7 ] On January 21, 2011, the Ministry became aware from a member of the RCMP Detachment in Melfort that the father, J.D., had been charged with sexual assault and sexual interference with a 12 year old child, the charges arising out of a time when that child, S., now residing in another town in Saskatchewan, had resided with J.D. and A.D. (his wife) in Melfort.

A family services worker from Melfort (the first worker) was assigned to look into the matter respecting the couple’s biological children, and decided to take some steps to interview these three biological children, all of whom are the subject of this hearing. The matter the RCMP referred to was based on an allegation that while S. had stayed with J.D. and his wife A.D. for approximately six months in 2010, that child had been abused by J.D.

Thus, the RCMP officer who reported this matter to the family services worker had concerns about the biological children of J.D. [ 8 ] On February 1, the first worker, who had carriage of the matter, and a colleague, made arrangements to go to a local school and interview J., then seven years old. This second worker took the lead in the interview, and the first worker testified at trial that J. said to them that there were some things she liked at home, and some things she didn’t. She stated she didn’t like it that her dad snuck into her room at night, tickled her, and sometimes slept in the same bed with her.

J. also told the workers that there were no “good touches” from her father, but there were from her mother. What J. told the workers was that a good touch would be things such as hugs and kisses, and a bad touch would be her dad spanking her on her bum. [ 9 ] J. also told the family service workers that there were some bad touches from her brother T. [ 10 ] At that point, the workers stopped the interview, as the general practice of the Ministry was, if the disclosure was approaching areas that could be criminal in nature, to call in the RCMP.

Thus, the acting supervisor at the time contacted the RCMP to see if they wanted to do further interviewing. [ 11 ] The contact person at the RCMP was Cst. Sheila Cochrane; the first worker told Cst. Cochrane what J. had said to her and her colleague, and Cst. Cochrane said she’d like to interview J. that day, with the other children being interviewed after that. The first worker and a colleague took J. to the RCMP for Cst. Cochrane to interview her, and as that interview was being conducted, both then went to the residence of the mother and father, A.D. and J.D.

[ 12 ] At that residence, the workers told the mother and father that J. had been apprehended, that she was being interviewed by the RCMP, that they knew of the charges from the other Saskatchewan community with the 12 year old girl S., and that the Ministry had concerns with the father being in the house until matters were fully investigated. They therefore asked the parents to sign a Parental Services Agreement that would have the father move out of the house while this occurred. [ 13 ] The mother’s response was to say that the children couldn’t be out of her care, and that her husband would have to leave.

Her husband, not surprisingly in the circumstances, was very upset, complaining that he had no place to live, and stating that the young complainant, S., would pay for this. Although he wanted to see his children, the family services workers said he could not. Ultimately, both parents signed the Parental Services Agreement (Exhibit D-1). The stated reason for the Ministry’s involvement was “concerns in regards to ongoing RCMP investigation (possible sexual abuse)”.

The “Outcome Statement”, that is, the “specific behaviours or conditions that will demonstrate change”, were “for [mother] and [father] to provide a safe home environment for their children”. The parents were to ensure the father was immediately removed from the home, they were to cooperate with the Ministry to allow workers into the home, and they were to ensure that the father had no contact with the children until matters were “further discussed”. The Ministry’s role in this was to “maintain contact with the family and provide support as needed”.

This Agreement was to be in effect from February 1, 2011 to March 1, 2011. [ 14 ] The evidence at the hearing was clear that the Ministry had concerns respecting the youngest daughter J., and based on what she had said to the workers, and the charge from the other city, they wanted the father out of the house as a precaution. [ 15 ] As this first meeting was winding down, the other worker received a phone call from Cst. Cochrane. She stepped out of the house to speak with the officer, who indicated that she had finished the interview with J., and that she could be taken back to school. Cst.

Cochrane also told this worker that J. had made some disclosure about her father, a fact which the worker did not pass on to the parents, or to the first worker, as she wanted to first discuss the matter with the first worker, and talk further with Cst. Cochrane. Further, having few details at this time, she did not want to exacerbate an already tense situation. After the Agreement was signed, therefore, the two workers went back to the RCMP Detachment and arranged to take J. back to school. [ 16 ] While at the RCMP Detachment, the first worker and Cst.

Cochrane spoke privately, while the other worker stayed in the outer waiting room area with J. By all accounts, J. was happy and outgoing, and did not show any outward signs of being upset. [ 17 ] When the workers returned J. to the school, they asked the receptionist for a private phone, as they wished to contact their acting supervisor. After updating her on what the workers now knew, the decision was made to apprehend all three children. [ 18 ] This decision was based on a number of concerns.

One was whether or not the Ministry felt that it could justify the risk of leaving J. in the home, another was the fact there were two other family members residing there besides J., and the third was the continuing need to have the father removed from the home. Although the initial plan was for the father to leave the home for a month, as set out in the Parental Services Agreement, the Ministry now had the information from Cst. Cochrane respecting J.’s disclosure against the father, and a belief, based on what Cst. Cochrane had said J. had said, that the mother was aware of the abuse.

Although the Ministry initially felt that the children could be protected if the father was out of the house while the investigation was being conducted, this belief that the mother knew of the abuse changed the landscape. Seeing no other options at this time, the decision was made to remove all three children from the home. A further concern was that, due to the criminal charges which were inevitably going to be brought against the father, based on J.’s disclosure, the Ministry wanted to be sure that the children wouldn’t be coached.

Presumably this fear was that the parents would unduly influence J. to change her story, and perhaps put pressure on the other two children, although at this time the other two had not been interviewed. [ 19 ] Therefore, the Ministry workers made arrangements to have the children taken from school and placed in temporary foster care, and returned to the home to advise the mother (the father having now left, as he was required to do under the Parental Services Agreement), that all three children were being apprehended. [ 20 ] When this news was imparted to the mother, she cried briefly, and then immediately made comments to the workers respecting the children’s medical situation (the two oldest had asthma problems, and needed certain medications and inhalers), and further advised the workers of T.’s severe allergic reaction to dogs.

When asked specifically if she knew of the alleged abuse committed by her husband upon J., she said that she did not.

[ 21 ] The next contact between the Ministry and the parties was on February 3, 2011, at which time they met with the parents to advise of the current situation. At that time, the Ministry proffered an Agreement for Residential Services (Exhibit D-2), under s. 9 of the Act . This was intended to replace the earlier Parental Services Agreement. This second Agreement called for the Minister to provide services to the children for a one month period, now from February 3, 2011 to March 3, 2011, and basically entailed the parents voluntarily signing over guardianship to the Minister until the March 3 date.

Part of the Agreement was that “the parent shall refrain from having any access with the children until further notified and cooperate with the Ministry” (underlining in the document). This Agreement was not signed, as the parents, as was their right, sought legal advice prior to doing so. The end result is that this matter is now before the Court. I note at this time that the two older children had still not been interviewed; those interviews took place on February 4, 2011. [ 22 ] The involvement of the Royal Canadian Mounted Police in this matter was explained by Cst.

Sheila Cochrane, who was the one who conducted the interviews with all three children. She testified that, in December of 2010, a detachment from another mid-sized city in Saskatchewan had brought the matter of S. to the attention of the RCMP in Melfort, as that detachment had information that an offence had occurred in Melfort at the residence of J.D. and A.D. The information she had received was that a young female complainant had lived at that residence for approximately six months earlier in 2010, and had made a complaint that the father had sexually abused her.

Based on that, the father was arrested and charged, in Melfort, with one count of sexual assault under s. 271 of the Criminal Code , and one count of sexual interference under s. 151 of the Criminal Code . He was released on an Undertaking Given to a Justice or a Judge on January 20, 2011, and that matter remains before the Court. [ 23 ] When asked why that Undertaking made no reference to the father’s own children, Cst. Cochrane testified that this Undertaking dealt only with the other charge.

This would accord, of course, with the evidence of when the initial disclosure was made by J., which as of the date the Undertaking was signed, had not yet occurred. [ 24 ] The officer went on to indicate that it is the policy of the RCMP, in a case in which there is any allegation of sexual abuse in a home, to investigate any children living in the home at the time the allegations came to their attention.

Thus, she called the elementary school where the children were attending school in Melfort, to advise the authorities there of the conditions of the Undertaking the father was on, conditions which included that he was not to attend a school or school grounds. She further advised the school authorities of the charges that the father faced, and told them he was not to be at or near the school, including for any reason connected with his own children. She then called the first worker, and asked her to go to the school and meet with the three biological children of J.D. and A.D.

She was not present at any interviews that were conducted between employees of the Ministry and the children, nor were any members of the Ministry present during any interviews she had with the children. [ 25 ] Her next involvement was when the first worker told her that J., then seven, had disclosed to the workers that there was some “inappropriate touching” by J.’s brother T., then age nine, and that J. had also said that sometimes her dad is a “bad guy” and does things she doesn’t like.

Based on that information, and in fact all of the information she had respecting the father at this time, she felt it was appropriate to carry on and do interviews with all three children. [ 26 ] J. was the first one who was interviewed, and that occurred at the RCMP Detachment on February 1, 2011. The standard process, followed in this case, was that someone from the Ministry would arrange to pick up each child individually, and bring him or her to the detachment, where Cst. Cochrane, dressed in casual clothes, would conduct the interview.

Once the interview was finished, the Ministry official would take the child back to school.

This was done in an attempt to alleviate any concern or worry each child might have. [ 27 ] The interview with J. followed the general pattern of the officer having small talk with a child to establish a rapport, and then asking him or her questions respecting things they like and didn’t like, what they felt about good touches and bad touches, having the child look at a rough diagram to see if they could identify various body parts of a male and female, etc. [ 28 ] J. said that she didn’t like it when her “pee-pee” was touched; she said her brother T. touches her on her pee-pee, when there were no clothes on her, and that she had told her mother, who made T. sit on a couch.

She says this only happened once with her brother, and she didn’t have a date that this occurred. She did say that her brother doesn’t do this anymore. [ 29 ] She also said her dad spanks her bare bum, and she said she has spanked her dad’s bare bum. She said once her dad placed his

pee-pee over her nightgown, and that when she told her mother about that, her mother made her father sleep on the couch. [ 30 ] She also said that she likes being tickled on her belly button, which her dad does to her. She went on to say that she sometimes got tickled by her father on top of her panties, and that she “didn’t like that touch”. That is what she said she meant by saying her dad was sometimes a “bad guy”. This appeared to the officer to be a one time occurrence, again with no stated time frame.

However, in cross-examination, it was brought out that one specific allegation was from “last night”, which could, if correct, only have been on January 31. [ 31 ] The results of this interview with J. were passed on to the Ministry, this conversation obviously occurring at the time the family services workers were at the parents’ home the first time, speaking of their concerns respecting J. [ 32 ] The next interview was with D., a girl then 10, whom the officer indicated was not receptive to being interviewed. In particular, Cst.

Cochrane testified, D. “shut right down” when the discussion started about the male penis. Cst. Cochrane found that strange, as D. was older than J. The officer went on to say that D. was “fidgety”, and that she lost eye contact with her when the question got into good touches and bad touches. Although there was nothing “alarming” noted by the officer respecting those touches, she did feel that D. was holding back, as D. had said there was something “uncomfortable” at home, but wouldn’t go into any further details, despite the best efforts of the officer.

This interview took approximately one half hour. [ 33 ] The last interview was with the boy T., then nine. Cst. Cochrane said he was “real easy to talk to”, and that he stated that he didn’t like it when his sisters “stood on his pecker”. He denied ever touching J.’s private parts and when the officer told him directly what J. had said about that incident, T. did acknowledge that he had to sit on a couch because that is what J. had told their mother. He stated that he didn’t want to go home because he didn’t like to watch the shows his dad watched.

This interview also took approximately one half hour. [ 34 ] When asked if the officer reached any conclusions respecting T., she commented there was what appeared to be “strange behaviour” in the home, referring to T.’s comments about slapping bellies, and stepping on private parts. However, it sounded very much like T. was all over the map respecting what he liked, what he didn’t like, what happened, etc., and I am certainly not able to conclude that there was anything inappropriate disclosed whatsoever from T. [ 35 ] Cst.

Cochrane advised the Ministry of Social Services of the results of all three interviews, and advised the workers that, based on what she had heard from J., there was going to be a charge of sexual assault and a charge of sexual interference brought against the father. She said a Summons was prepared, and served by another officer. [ 36 ] When asked why, with respect to those charges, there were no conditions relating to the father respecting a prohibition of contact with J., the officer explained that the prior Undertaking (Exhibit P-1), referred to the other investigation.

She said she had nothing to do with any conditions, nor in fact anything to do with how and when the father was charged and released on the Melfort charges. She said she had no real concerns in any event at this time, as the Ministry had apprehended the children. Although she couldn’t say if an Undertaking could be attached to a Summons, as indicated, she had no concerns for the above noted reasons.

She stated this investigation remains before the Courts, and she really has no further knowledge as to the status of those charges. [ 37 ] At the time of this hearing (May 9 and 11, 2011), all three children remain on apprehended status.

Whereas they were initially all taken to the same temporary foster home, it appears they have now been separated. [ 38 ] The Ministry’s position is that the children are in need of protection based on the grounds set out in s. 11(a)(iii), that is: The child has been or is likely to be exposed to harmful interaction for a sexual purpose, including involvement in prostitution and including conduct that may amount to an offence within the meaning of the Criminal Code . (emphasis added) [ 39 ] The specific concern is levied against the father, as he remains before the Courts charged with the sexual assault of a non-

family member, and has also now been charged with sexual offences respecting his daughter J. Collaterally, a concern is that the other two children are also at risk of likely being exposed to “harmful interaction for a sexual purpose”. [ 40 ] There is no concern on the Ministry’s part respecting the mother being actively involved in sexual misconduct with anyone.

However, the position of the Ministry is that the mother may be unable to protect the children, both because she had, in the Ministry’s view, knowledge of the inappropriate conduct of her husband that is alleged, and also because of a concern that she is not able to protect the children from the father, despite him being removed from the home. As one example of the Ministry’s concern on this latter point, it was noted that, when A.D. came to the Ministry’s office to exercise supervised access to the children, J.D. sometimes dropped her off, although the Ministry had made it clear he was not to see the children.

ANALYSIS AND DISCUSSION: [ 41 ] I have summarised the evidence relied on by the Ministry as, of course, this was the evidence and the information the Ministry had in its possession at the time they apprehended the children. [ 42 ] It is clear that there is a two step process that must now be undertaken. The first step is to determine, in accordance with s. 36(1) whether “the child is in need of protection” as that term is defined in s. 11.

The next step is to, assuming that determination has been made, make an appropriate order under s. 37 of the Act . (See Katie, Re 2008 SKQB 287 , at para. 131 .) [ 43 ] For the purposes of this decision, I will deal with each child separately, as it does not necessarily follow that, if one child is in need of protection, all three are. [ 44 ]

Section 17 of the Act authorizes an officer “on reasonable and probable grounds, to take ‘all reasonable steps’ that he or she considers necessary to provide for the safety or welfare of the child”, if the officer believes on those reasonable and probable grounds that a child is in need of protection and at risk of incurring serious harm.

The decision to apprehend is often made on short notice, and under a developing situation, one in which not all the facts are totally clear or known. [ 45 ] However, once the decision to apprehend is made, s. 17(3) also places a positive statutory obligation upon the worker to return the child to his or her custodian if the officer no longer believes a child would be at risk of incurring serious harm if returned.

Thus, Ministry officials are required to reassess the situation on an ongoing basis (see M. (A.J.R.), Re , 2010 SKQB 371 , @ para. 32). [ 46 ] Once the matter is the subject of a hearing, the Court’s decision must be based on evidence. (For one example of the need for evidence, in a fact situation somewhat similar to this, see R. v. P.F.(C.W.) , 2000 SKQB 506 .) D.D. [ 47 ] The only evidence that D. might be in need of protection is the hunch held by Cst. Cochrane that D. has been holding something back.

There is nothing wrong with a peace officer having a hunch; in appropriate cases, the hunch can lead to further investigation, which may or may not support the initial hunch. It is of note here that Cst. Cochrane has done nothing further with the hunch; quite appropriately, she did not charge the father with anything respecting D., based on her hunch.

The Ministry, in my view, is of a different opinion; their view seems to be that this “hunch”, combined with the fact of unresolved charges against the father respecting other children, can be elevated to the status of “reasonable and probable grounds” to justify an apprehension. This would presumably be based largely on the assessment that D. may be holding something back (if in fact she actually is, the only evidence of this being Cst.

Cochrane’s impression) because she has been abused by the father. [ 48 ] Whereas the Court is often required to draw an inference in the proper circumstances, and in many cases the inference is necessary to establish a case, an inference is a bridge between two proven facts. I am not prepared, on the complete dearth of any evidence from D. that she has been abused by anyone, to bridge that gap respecting D. Nor am I prepared to rely on the fact that the father has been charged, twice, with offences against children, in these circumstances, as grounds to conclude every child is at risk of

him, including, in this case, D. The situation might be different if the father had been convicted of a sexual offence. However, that is not the case I have before me. In the absence of disclosure of a concrete nature of anything inappropriate, from the child who is supposedly at risk, to suggest that D. is or has been at risk of being exposed to harm by the father, is pure speculation, and is contrary to the information from that very child. [ 49 ] I have determined that D. is not in need of protection.

Pursuant to s. 36(3) of the Act , I dismiss the application respecting her and order that D. be returned to her parents. T.D. [ 50 ] As is the case with D., there is no evidence whatsoever that T. is in any danger of being sexually abused, or exposed to sexual misconduct, by anyone. The most I can say about T. is that he appears to be an imaginative little youngster; certainly, his “disclosure” is not supportive of anything that I can see beyond an active imagination.

Further, he enjoys spending time with his father, and his biggest complaint against his father appears to be that he does not share his father’s interests in television programming. If he has any issues at all, it may be that he has acted inappropriately towards his younger sister J. However, even if anything of that nature did occur, that certainly cannot be visited upon either the mother or the father, based on the evidence, or lack thereof, in this case. [ 51 ] I have determined that T. is not in need of protection.

Pursuant to s. 36(3) of the Act , I dismiss the application respecting him and order that T. be returned to his parents. J.D. [ 52 ] There is a criminal charge before the Courts that the father has sexually assaulted and/or sexually interfered with J. The father did not testify, and it is understandable that he may not wish to do so, in light of the outstanding criminal charges he faces. As such, I am left with the to date uncontradicted evidence of J., albeit it hearsay, alleging that the father has abused her.

What she alleges speaks to “conduct that may amount to an offence within the meaning of the Criminal Code ”, as that phrase is set out in s. 11 (a)(iii) of the Act . That question will ultimately be settled in another forum, and I am not concluding that the father is in fact guilty of any criminal offence.

On the evidence before me, however, in this forum, I conclude that J. is in need of protection from him for the reason set out in s. 11(a) (iii) of the Act. [ 53 ] Before going on to the next step of the analysis, respecting what order to make now that I have found J. in need of protection, I do want to comment on the role of the mother in all of this. With all three children, the only concern that I am prepared to pay any heed to is that the father may have sexually abused J. He, of course, also may have sexually abused another child when that child was temporarily living with the father and the mother.

However, with respect to the mother, I had the benefit of hearing her evidence, and the benefit of hearing from her parents. There is simply not any reliable or credible evidence in the Ministry’s case that would suggest the mother is in any way a risk factor for any of the children. The worst that can be said about the mother is that she stands behind her husband. However, she was abundantly clear that she will do whatever she needs to do to get the children back, and in fact, she has required the husband to leave the home pending resolution of this matter.

The mother has always put the welfare of her children first, and she has taken a succession of jobs that allow her to spend time with her children.

With respect to her oldest daughter, when it was found that D. had a “comprehension problem”, the mother took the necessary steps to ensure a specialist was arranged to help her, and the mother spent extra time with her helping her to overcome that temporary disability with respect to reading and comprehending. [ 54 ] Further, when the children were apprehended, it was the mother who volunteered the information that each child had certain allergies, and remedies for those allergies, information that the Ministry had no knowledge of, and would have no knowledge of , but for the mother ensuring that the Ministry was aware of these concerns.

One of the workers did note that, when the mother was advised that the apprehension was going to occur of all three children, on the second visit to the home that day, she did not ask the workers where the children were. If this is raised as grounds to support the view that the mother is unfit, I must disagree. [ 55 ] It was the mother who, when first advised by the workers of the need for the father to leave the home pending investigation of matters, immediately saw the need to have the father leave, and actively encouraged him to do so.

In fact, the mother was instrumental in having the father agree to sign the Parental Services Agreement proffered by the Ministry workers at the outset of the investigation. Having the children in the mother’s care was obviously viewed by the Ministry as being sufficient protection at that time,

and in my view, nothing has really changed with the mother’s situation since that time. [ 56 ] When asked directly what she would have done if she knew there was some inappropriate conduct between her husband and her daughter J., she replied “I would have called the cops and had him removed”. The evidence is clear that the Ministry workers do not believe the mother when she states that she will do so, and the workers likewise do not believe the mother when she states that she has never had cause for concern respecting J., and her husband, preferring to rely on what J. relayed to Cst. Cochrane, and what Cst.

Cochrane relayed to the Ministry. Anything J. said to anybody is of course hearsay, if relied on for the truth of its contents, although the Court can accept hearsay evidence in certain cases (see s. 28 of the Act ). However, in contrast to the Ministry’s belief, I had the opportunity to carefully observe the mother on the witness stand. She is credible. She is believable. Her evidence is reliable. She puts her children’s welfare before all else. I believe her, and I am totally satisfied that she is a caring and loving mother for each of her three children.

In my estimation, the idea that she would know of any abuse, and countenance it, is without merit. [ 57 ] The only potential knock that can be made against the mother was that she refused to take the Ministry up on its May 2 offer that she should get some counselling. This offer was made just prior to the commencement of the hearing, and I accept the mother’s answer that one reason she declined that offer was because she feared the Ministry would use whatever she said in counselling as evidence against her. I can well understand the mother’s suspicion.

I also observe that such an offer seems to have little to do with the obligation imposed on the Ministry by s. 3 of the Act , to “promote the well-being of children in need of protection by offering, wherever appropriate, services that are designed to maintain, support and preserve the family in the least disruptive manner”. This was the first offer of any kind that would have that potential effect, and the children had, by this time, been on apprehended status for three months.

In this case, it is abundantly clear that the Ministry is quite prepared to in effect piggy-back this apprehension on to the back of the criminal charges, and await the outcome of those matters, levelled against the father, before deciding what to do next.

When asked in cross-examination why the workers put any questions to the mother, one worker’s reply was “We were working with the RCMP.” Whereas it was clear that the Ministry and the RCMP often work in tandem on some matters respecting children, when appropriate to do so, such a temporary alliance does not absolve the Ministry of its independent obligation to act according to its statutory mandate.

In this case, such a dependance on the RCMP investigation serves as further evidence that there has been no ongoing re-evaluation of this matter to any meaningful extent, despite the statutory duty to conduct such ongoing evaluations. [ 58 ] As to the major concern of the Ministry that the mother will simply fail to protect the children, or somehow acquiesce to the father’s will, the evidence at this hearing does not support that. [ 59 ] Both the parents of the mother testified, and provided cogent and relevant evidence respecting the needs and personality of all three children, buttressing what their daughter had said.

In addition, each of the mother’s parents made note of the mother being an exceptional parent, one who put her children above all else. One could expect such evidence from the parents of the mother, although one particular comment made by the father struck me as particularly helpful. He is a retired teacher, and he testified that in his view, his daughter interacted very well with the children, and that he had never seen any inappropriate behaviour whatsoever.

When he was asked a follow up question in examination-in-chief that, being a teacher, he would be more sensitive than most to those issues, a question that, coming from the mother’s lawyer, obviously invited a positive response in an effort to enhance his credibility, he paused for a moment, and stated that that would not be the case, as he is “not the most observant of people”. I have no doubt that the father’s evidence respecting his daughter is realistic and cogent, and I accept his comments as being truthful and helpful to the Court in deciding this case. [ 60 ] In

summary, although I accept that all members of the Ministry were acting in good faith, I have concluded, based on the evidence before me at this hearing, that there is insufficient evidence that any of the children, other than J., are in need of protection. For the reasons given, I find that J. is a child in need of protection, but only with respect to her father, J.D. Pursuant to s. 37(1) (

a) and (5) of the Act , I order that J. be returned to her mother, A.D., within seven days of the date of this Judgment. I further order that the father is not to reside in, or stay overnight in, the same residence as J., nor is he allowed to have any contact with J. at any location unless such contact is under the direct and continuous personal supervision of the mother A.D. Dated this 16 th day of June, 2011 at the City of Melfort, Saskatchewan. B. Morgan, J