IN THE MATTER of a hearing under THE CHILD v. FAMILY SERVICES ACT, 2012 SKPC 177

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 177 Date: December 12, 2012 Location: Nipawin _____________________________________________________________________________ Between: IN THE MATTER of a hearing under THE CHILD AND FAMILY SERVICES ACT AND IN THE MATTER OF C.A., born […], 2006 C.B., born […], 2006 D.S., born […], 2002 P.P., born […], 1997 Appearing: Ms. C. Eninew For the Ministry of Social Services Self-Represented For the mother Self-Represented For the father The parents and children are identified by initials in order to protect the identities of the children. JUDGMENT B. MORGAN , J

INTRODUCTION: [1] The Minister of Social Services (the Minister) applies for various orders pursuant to s. 37 of The Child and Family ServicesAct, S.S. 1989-90, c. C-7.2 (the Act) seeking the following orders: - for each of C.A. and C.B., an order committing each child permanently to the Minister, pursuant to s. 37(2). C.A. and C.B. are twinboys who will be seven in […] of 2013; - respecting D.S., a boy who is now 10 years old, that the father’s sister be designated a person of sufficient interest, and that D.S. beplaced with her for an indefinite period, pursuant to s. 37(1)(b).

The Ministry’s view is that D.S. is not a likely candidate for adoption,and thus an order of this nature would be in D.S.’s best interest; - respecting P.P., a girl now 15 years old, in light of her age, pursuant to s. 37(3), the Ministry seeks a long-term order until she reachesthe age of 18. [2] The father, V.S., and the mother, C.P., are the biological parents of all four children.

In addition, there was an applicationrespecting a fifth child of this couple, also D.S. (hereinafter referred to as E., born […], 1996), but as she has now elected to return to herparents, the Ministry has discontinued their application respecting her. [3] Each parent, who presented a joint case in opposition to the Ministry’s application, wish to have the family reunited withthem, and are opposed to each of the orders sought by the Ministry. [4] There was a previous order made respecting all four children (which, at the time, included E., as she was 15 at that time), onMay 11, 2011, committing all the children to the Minister, for a six month period, pursuant to s. 37(1)(

c) of the Act. The order states thatthe children were found to be in need of protection pursuant to s. 11(

b) of the Act (see Exhibit P-3). [5] The solicitor for the Ministry argues, correctly, that the relevant time period for this Court to consider in this application isthe period from the date of that order to the date of trial. This Court is to proceed on the basis set out by Hunter J.A. in S.F. (Re), 2009SKCA 121, at paragraph 23: In the instant case, the authority of the trial judge is found in s. 38 of the Act.

The task in the hearing before the trial judge, in hercapacity as a reviewing judge, is to determine, at the time of the hearing and using as the point of reference the date the last orderexpired, whether the children continued to be in need of protection. If the children continue to be in need of protection, the task is todetermine which of the possible orders provided for in s. 37 of the Act is appropriate and applicable in the circumstances. [6] In Saskatchewan (Minister of Social Services) v. S.(E.K.) (1996), (SK KB), 146 Sask. R. 46 (Sask.

Q.B.),McIntyre J. set out the statutory framework and the legal test to be followed. It is a two-step process. The first step is to determinewhether the child is in need of protection as defined in s. 11 of the Act. If so, the second step is to determine the order among the optionsavailable as stated in s. 37 of the Act. [7] The Ministry’s case addressed that time frame from the order of May of 2011 to the start of the trial in August of 2012.

Iwill therefore review the legislative framework, address the use of hearsay evidence, as some of the Ministry’ s case relied on suchevidence, and go through the evidence, in order to determine this application. LEGISLATIVE FRAMEWORK: [8] The Minister seeks an order pursuant to s. 11 of the Act, for each child, being of the view that each child is in need ofprotection. Subsections (

a) and (

b) of s. 11 are the relevant subsections in this matter. Those subsections read 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; (

b) there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur. [ 9 ] 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. [ 10 ] As the previous order was made under s. 37(1) (c), s. 38 sets out the process: 38(1) Subject to subsection (2), on the expiry of an order pursuant to clause 37(1) (

b) or (c), an officer shall return the child to a person who has a right to custody of the child.

(2) An officer may: (

a) before the expiry; or (

b) within 15 days after the expiry; of an order mentioned in subsection (1) or an order pursuant to subsection 37(6), apply for a hearing to determine whether the child continues to be in need of protection.

(3) Where an officer has applied for a hearing pursuant to subsection (2), the court shall fix a day, time and place for the hearing in accordance with subsection (4).

(4) The day fixed for a hearing pursuant to subsection (2) is to be: (

a) as soon as practicable; and (

b) not later than 30 days after the day on which the application is made.

(5) The officer shall give notice of a hearing pursuant to subsection (2) in accordance with

section 24.

(6) The provisions of this Part respecting protection hearings apply, with any necessary modification, to a hearing held pursuant to subsection (2).

(7) Where an application is made pursuant to subsection (2), the order mentioned in subsection (1) is deemed to continue until the disposition of the hearing pursuant to subsection (8), notwithstanding the expiry of that order.

(8) At a hearing pursuant to subsection (2), the court shall: (

a) determine whether the child continues to be in need of protection; and (

b) make any order authorized by

section 36 or 37, as the case may require.

(9) Subject to subsection 68(1), the total of the periods of all orders made pursuant to clause 37(1) (

c) shall not exceed 24 months unless the court determines, after considering the best interests of the child, that an extension is required.

(10) The total of the periods of all orders made pursuant to subsection 37(6) shall not exceed 18 months unless the court determines, after considering the best interests of the child, that an extension is required. [ 11 ] As noted in subsection 37(4), as I am required to consider the best interests of the children, the Court may also consider the recommendations of “the officer”, being the official from the Ministry who in this case is Mr. Ron Nickel, who filed affidavit evidence and provided viva voce evidence at the trial. [ 12 ]

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

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. HEARSAY EVIDENCE: [ 13 ] Hearsay evidence is evidence based on information received from a third party, as opposed to information that a witness has personal knowledge of. Such evidence is not generally accepted for its truth, one concern being that the person providing the information is not a witness. There are numerous exceptions to that general principle, but that is the nub of the matter. In this case, two affidavits were filed, Exhibits P-1 and P-2, each sworn by Mr.

Ron Nickel, who was, at the time of trial, a supervisor of Child and Family Services employed with the Ministry. In those affidavits, Mr. Nickel deposed to material contained in the Ministry’s files of which he had no personal knowledge. He also testified as to things of which he had personal knowledge, such as meetings he had with the parents, etc. The question becomes what use to make of the hearsay contained in the affidavits.

[ 14 ] In written argument, counsel for the Ministry acknowledged that some of the evidence presented in the form of an affidavit did contain hearsay evidence, and relied on s. 28(3) of the Act for admissibility of such material. That

section states: 28

(3) The court may admit hearsay evidence if, in the opinion of the court, the evidence is credible and trustworthy and it would not be in the best interests of a child for the child to testify. [ 15 ] The argument of the Ministry is that the hearsay evidence contained in Exhibits P-1 and P-2 is “credible and is largely derived from officers of the RCMP, who are unbiased, as well as professionals from the Ministry of Social Services, who operate under a duty to act in the best interests of the children”. [ 16 ] With respect, I must disagree with that

interpretation of s. 28(3). In L.(B.) v. Saskatchewan (Ministry of Social Services) , 2012 SKCA 38 , Ottenbreit J.A., writing for a unanimous court, referred to s. 28(3) at paragraph 19 and stated: This provision allows hearsay to be admitted respecting the out of court utterances or actions of the child, where it would not be in the child’s best interests to testify.

It has no application to the admissibility of police records pursuant to The Evidence Act . [ 17 ] That particular case dealt with the admissibility of police records in a family services hearing, although in my view the principle stated is applicable to this situation. Section 28(3) refers to a child ’s observed actions or utterances.

It cannot act as a vehicle to put any hearsay evidence from any source before the Court for the truth of its contents. [ 18 ] The problem respecting admissibility of the Ministry’s file material generally was canvassed in V.J.C. (Re) , 2009 SKQB 395 , at paragraphs 9 through 13, a decision of Wilkinson J. referred to in the L.B. case.

In that case, counsel for a party stated at the outset of the trial that “he would object to any wholesale admission into evidence of the Ministry’s records regarding the family’s lengthy case history, summaries prepared by caseworkers who are unavailable for cross-examination, or third-party reports made to the Ministry” . [ 19 ] In commenting on that, Madam Justice Wilkinson noted that “by the trial stage, there is usually a mountain of documentation ” respecting all types of meetings and interactions between family workers, the parents, foster parents, etc.

As she put it “counsel need to be practical and reasonable”.

Stating that non-contentious documents should be allowed in by consent, she also noted “that there are vital interests at stake which should not be determined on the basis of unreliable or untested evidence”. [ 20 ] Madam Justice Wilkinson went on to explain that the “Ministry is certainly entitled to supply the background and context of their investigation as part of the narrative”, but that the “narrative evidence is not admitted for its truth, but simply for the purpose of explaining the actions of the Ministry workers and supervisors who testified in the course of this trial, and who indicated they reviewed the file information and acted upon it”.

She held that it is “ not necessary to rely on the historical information except for the purpose of providing background and context to other accounts described to me first hand”. She went on to note that in the case before her, all of the relevant parties testified. [ 21 ] In this case, there are two particularly noteworthy examples of problems in the affidavits. As one example, paragraph 30 of exhibit P-1 states: On December 15, 2011, the Ministry received a call from an unnamed caller stating that they had seen [the father] and [the mother] intoxicated and headed towards the River Inn.

I attended [the parents’] residence shortly after 1:00 p.m. to attend the scheduled meeting with [the parents] and Douglas to renew the parent aide contract. I seen ( sic ) a note on the door stating they were Christmas shopping.

[ 22 ] I have no reason to believe that, on the particular day referred to, either parent was observed walking by that bar in an intoxicated state. The Ministry refused to divulge the identity of that individual, taking the position that third party information contained in the Ministry’s files on a protection matter should not be disclosed. By the same token, the Ministry wishes to have the affidavit admitted for the truth of its contents.

The evidence of the father, which I accept on this point, is that the mother and father live in the general area of that location, and walk by that property on a fairly regular basis. In any event, I would question how it is that someone could testify that people walking along were “intoxicated” without further background.

This is an example of spurious evidence being proffered by an unreliable affidavit. [ 23 ] A more troubling example is found at paragraph 38 of exhibit P-1: That on January 10, 2012, I spoke with [the father’s sister]. [She] advised me that P. had burned D.’s eye with a cigarette because he was not listening to her. [The father’s sister] also stated that [the father] was out until 11 p.m. the night [the mother] was bit [sic].

The children, D., C.A. and C.B., were left at her residence and were being babysat by D. and P. [ 24 ] It is important to address specifically the incident that “[P.P.] had burned [D.S.’s] eye with a cigarette because he was not listening to her”. Throughout the trial, numerous references were made to this child’s eye being burnt. In his testimony, the father testified that what he had been told by both D.S. and P.P. was that P.P. was babysitting, that D.S. was running around, and that he ran into P.P.’s cigarette. Further, the burn was not in the eye; it was on the cheek area in the vicinity of his eye.

To my mind, there is a considerable difference between a cigarette being pushed into a child’s eye as an alleged punishment for not listening to the caregiver, which I find is not what occurred, and an exuberant child accidentally running into a lit cigarette, which is what I find did happen. It is concerning to me that throughout the trial, numerous references were made to a burnt eye, and this became, on the evidence, the major reason the Ministry has concerns about lack of supervision.

This struck me as indicative of a rather casual attitude on the part of whoever drafted P-1. [ 25 ] One should not lose sight of the fact that there is a distinction between admissibility of evidence, and the weight to be given to that evidence. I have accepted the affidavit evidence material as narrative and background, and assessed its weight accordingly. [ 26 ] The Ministry also filed three other documents, being internal documents setting out the reasons that the Ministry was seeking the desired orders.

P-4 was a Long Term Ward Request respecting P.P, P-5 was a Permanent Ward Request respecting C.A. and C.B., and P-6 was a Person of Sufficient Interest Request respecting D.S. They each deal with the background of the family and the circumstances leading to each child coming into care, and each one of these documents has been afforded the same treatment as the affidavits, that is, as narrative and background. [ 27 ] Against these comments, I will now review the overall situation. BACKGROUND OF THE FAMILY: [ 28 ] Mr. Ron Nickel testified that he had personal carriage of the file from 2011 to January 2012.

He testified that during that period, the parents were trying to get a stable home, and that alcohol abuse and domestic violence were issues the Ministry had identified. [ 29 ] He stated that during the period from August to September of 2011, the mother was intending to go to Alcoholics Anonymous meetings, as was the father, and that the children were in care at that time. The parents were also involved with the Oasis Centre in Nipawin, and were working with an elder.

As well, he stated a parent aide was working with the parents. [ 30 ] He testified that he thought the children had been in care since November of 2010. [ 31 ] He was involved with the planning that was set out in Exhibits P-4 through P-6. He testified that, with respect to P.P., who is

subject to a long-term order request, she would not likely be adopted at her age. [ 32 ] With respect to C.A. and C.B., he had recommended that they be permanent wards of the Ministry, and that if there was a permanent order made, both would be eligible for adoption, as it was possible to find adoptive parents for children of that age. [ 33 ] With respect to P-6, it was his request that, originally, both D.S. and her older sister, who is not any longer subject to these proceedings, be placed with the father’s sister, and that she be designated a person of sufficient interest. [ 34 ] He further testified that, if the Ministry was granted the orders requested, visits would be encouraged, although he did note that once any child was adopted by another party, access would no longer be something the Ministry could guarantee. [ 35 ] In the affidavits he had referred to, both of which deal with the situation up to shortly before the trial, he refers to both Ministry files and information he has received from third parties.

He set out, in Exhibit P-1, where the children were placed at the time the order of the Honourable Judge Dyck was made; C.A. and C.B. were in a foster home of a certain K.P., as was D.S. P.P. was with the husband’s sister. This was the May 11, 2011 order referred to earlier. [ 36 ] Turning to what Mr. Nickel had personal knowledge of, in Exhibit P-1, it refers mostly to various meetings he had at different times with either the mother or father, or both of them. In paragraph 12, he stated that he met with the father on August 24, 2011, and advised him that he and the mother would have to work on their case plan.

The exact terms of that case plan were not explained. [ 37 ] The general tenor of the affidavit, and the meetings that Mr. Nickel held with either parent, generally support the view that the Ministry’s main concern was about issues of domestic violence, specifically alleged conflict between the mother and father, a lack of supervision, much of which revolves around an incident described in paragraph 38 in which P.P. had allegedly burned D.S.’s “eye with a cigarette because he was not listening to her”, and an ongoing alcohol abuse problem by each parent. The meetings generally referred to conversations Mr.

Nickel had with either or both parents respecting these concerns. [ 38 ] The bulk of the affidavit refers as well to contact Mr. Nickel had with Mr. Douglas Witherow, the parent aide, and as he gave evidence himself, I rely on what he said in his evidence in preference to comments he may have made as reported in the affidavit. Certainly, as was appropriate, there was contact between Mr.

Nickel and the parent aide respecting the progress, or lack thereof, the parents were making. [ 39 ] What I do find troubling in the affidavit, and which I have not given any credence to, are certain hearsay statements that, in my view, are not part of the narrative or background. Rather, the statements deal directly with alleged improprieties by one or both parents. As another example, paragraph 7 refers to an incident on July 11, 2011, in which Mr.

Nickel received a phone call from a co- worker, and the co-worker had stated she had received a phone call from K.P., foster parent of three of the children, stating that, among other things, K.P. had indicated that the father’s sister had contacted K.P. to arrange a visit. That paragraph goes on to speak of what that sister advised K.P., and includes comments attributed to what the children allegedly said. None of that was particularly helpful or well- presented. [ 40 ] Further, in paragraph 30, there is a reference to a parent aide contract.

That particular contract was not put in evidence, and I don’t know the terms of it. [ 41 ] In paragraph 29, reference is made to a signed parental services agreement of December 8, 2011. That parental services agreement was not put in evidence, and I do not know the terms of that agreement. [ 42 ] Turning to Exhibit P-2, it contains a number of allegations of specific incidents which occurred, and specific conversations held by various people, none of which were in the actual presence of Mr. Nickel. I do not accept that evidence as being evidence that I

can give much weight to, and I certainly don’t take it as background evidence. As one example, paragraph 11 recounts a phone call Mr. Nickel’s co-worker received from the husband’s sister, and contains detailed conversations between various parties. [ 43 ] What I do take from the affidavits generally, is background. That background satisfies me as follows: 1) Mr. Nickel was having various meetings with either or both parents, advising them that it would be necessary for both parents to, in one expression, get a handle on their drinking.

Those meetings also dealt with planned access visits, and generally speaking, Mr. Nickel conveyed to both parents a concern about domestic violence, and the parents’ use of alcohol. 2) There were difficulties with placements for all the children. DISCUSSION [ 44 ] The Ministry’s position is that the children are in need of protection pursuant to s. 11 (a)(i), (ii) and (vi): (

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. (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. [ 45 ] The Ministry’s position is that all children remain in need of protection, and as indicated above, the Court is to look at the situation since May 11, 2011, at which point Judge Dyck found the children to be in need of protection pursuant to s. 11 (

b) of the Act (there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur). [ 46 ] I will review the Ministry’s position on the three main concerns they have. (

a) Inappropriate supervision [ 47 ] Much reliance is placed by the Ministry on the fact that the Ministry offered an extended placement of the boys with C.P., to January 3, 2012, with a further extension after that until January 25, 2012. It does not escape notice that the children, who had been in a succession of other placements, were returned to C.P. as the Ministry was unsuccessful in finding a placement for those children. One would think that, if C.P. and V.S. were such unfit parents, the children would not have been returned to their care at all.

Nonetheless, it appears that the children were returned for the purposes of seeing if the children could be returned permanently. The plan was that the children would be returned permanently by January 25, 2012, although if either the mother or father drank, that would be a “deal breaker”. [ 48 ] One incident of particular concern to the Ministry is that, on January 9, 2012,the mother was apparently in a vehicle with a few people, and was grossly intoxicated.

The mother had her fingers bitten by one of those individuals, which caused her to seek medical attention, returning home after the incident (para. 37, Exhibit P-1). Thus, it is suggested, and leaving aside the use of alcohol, there was a lack of supervision for the children. [ 49 ] However, the evidence of the mother on that was that she had called the police in order to stop someone from driving while drunk. She admitted that, earlier that day, she and the father had gone with the father’s boss to have a few drinks in the afternoon. She testified she had left her two daughters in charge of all the children.

The father testified that he had been home that night with the children. Thus, the younger boys were supervised by either 15 year old P.P. or her older sister E., or for the latter part of the evening, by the father. The father testified that the police came to the door early the next morning, and he was in fact there. Thus, I do not see this incident as a particular example of lack of supervision.

[ 50 ] The other incident that the Ministry relies heavily upon is an incident set out in paragraph 38 of Exhibit P-1, which notes that “that on January 10, 2012, I spoke with S. S. advised me that P. had burned D.’s eye with a cigarette because he was not listening to her”. [ 51 ] Earlier in this judgment, that incident was referred to. However, it bears repeating with respect to the allegation that there was inappropriate supervision. [ 52 ] The evidence is overwhelming that that allegation is patently untrue.

Douglas Witherow, a parent aide whose organization had contracted with Social Services to provide assistance to parents, had direct involvement with the parents from approximately August or September of 2011 to the beginning of January 2012. I found him to be an excellent witness; thoughtful, careful, and observant. He testified that he had heard of this incident from Mr. Nickel, and as he described it, D. got burned “on the side of his face”. He went over to investigate, and saw “a little red mark on the side of his cheek, a day or two later”.

He testified that what he was told was that “one of the girls was smoking and he was running around”. [ 53 ] The father testified respecting this, and he stated that he had briefly gone to the local store, and this occurred when he was out. Both D.S. and P.P. told him the same thing upon his return, that is, that D.S. had run into P.P.’s cigarette. Despite what can only be referred to as an accident that is to my mind, not particularly out of the ordinary with any rambunctious child, Exhibit P-1 continually refers to a burn to D.S.’s eye.

I find the evidence contained in Exhibit P-1 is full of incidents like this, and I generally give it very little weight. In any event, I do not find this incident to be indicative of a lack of supervision. Rather, on the whole of the evidence, it appears that either the father or the mother, or if one or both of them are absent, a 15 year old sister, or at times a babysitter, are in charge of the children. In my view, there is no merit to the argument that the children are in need of protection due to a lack of supervision.

The injury to D.S.’s cheek was minor, and any suggestion that it was inflicted by the sister as a matter of discipline, to D.S.’s eyes, is patently absurd. However, that is the evidence proffered in paragraph 38 of Exhibit P-1, and is totally unreliable. I certainly do not find that allegation to in any way support a conclusion that there is a lack of supervision in issue in this case, as an issue in and of itself. It may have application to the next concern dealt with, being alcohol issues. (

b) Alcohol Abuse [ 54 ] The Ministry’s position is that each of the mother and father have serious alcohol abuse issues. The position of each of the mother and father is that they are social drinkers, not problem drinkers. The mother in particular has taken steps to decrease her consumption. [ 55 ] In my view, the parents have understated the extent of their alcohol consumption, and the impact that can have on their parenting abilities. By the same token, the Ministry seems to be insisting on total abstinence as a precondition to the children being returned to the parents.

Logic would suggest there has to be a reasonable middle ground; the fact that a parent drinks could hardly be a valid ground for child apprehension. If the parents drink to excess, and the result of that is harm to the children such that a child becomes in need of protection, it of course becomes a problem. [ 56 ] The evidence would suggest that usually when the mother and father are drinking, either alone or with each other, either the 15 year old or a babysitter is in charge of the children.

Further, I am satisfied on the evidence that the parents are cognizant that each has a responsibility to their children, and although the attitude of each parent seems to be denial, I do not see this as a situation that is as severe as the Ministry would suggest.

That is, I accept there is a drinking issue for each parent; I cannot accept that that drinking issue can be tied to a protection issue for each child that requires the orders sought by the Ministry. [ 57 ] I am well aware that the concern with the parents drinking is not simply that, when they are drinking at a bar, they are not at home to care for the children.

As has been noted in other cases (see, for example, the comments of Judge Dyck in Re: S.M. , 2010 SKPC 82 , at paragraph 89 ), if the parents are drinking, they have taken themselves out of circulation, as it were, for a considerable period of time, until they are sober and able to care for the children. Illness or emergencies can occur at any time, and children need to have access to fully functioning parents or caregivers at all times, including when a babysitter has left the home and the parents are at home in an inebriated state.

[ 58 ] The father’s sister also testified for the Ministry. I generally found her evidence to be of little assistance. She obviously has an intense dislike for either her brother or his lifestyle, as well as for the mother or her lifestyle. Although she testified as to occasions in which she claimed that one or both of the parents were intoxicated, I would not refer to any of those incidents as monumental. One incident occurred in which the mother was in a bar and called her over; she refused to go near, stating that “I feel I’m not safe when I’m around people drinking”.

That may be the case, but that does not mean the mother was posing a threat to her on that occasion. She further testified to incidents in which her brother had been drinking. I have no doubt her brother drinks, and I accept that she may have felt uncomfortable in his presence at such times. In any event, her evidence of occasions on which one or both of the mother or father were drinking does not really advance the Ministry’s case; the fact that they drink is not disputed. I am, however, satisfied it is a concern that needs to be addressed. (

c) Domestic violence [ 59 ] Although the father denies that domestic violence occurs, characterizing the relationship he has with the mother as being one in which there is some verbal confrontation, I accept that there have been incidents in which the verbal arguments have escalated to physical violence. Generally speaking, the father denied any specific incident he was confronted with, as set out in the affidavit evidence, although I don’t accept his denials as being accurate. Rather, he tends to minimize what occurs. The mother professes to have little or no memory of such incidents. [ 60 ] Specifically, the Ministry refers to a number of incidents, which I will review:

(1) July 11, 2011 - Paragraph 8 of Exhibit P-1 reads: On July 11, 2011, I [Ron Nickel] had a conversation with the Nipawin RCMP. I was advised by the RCMP that on July 6, 2011, the police where [ sic ] contacted as [the father and the mother] were intoxicated and there was an assault. The RCMP advised me that [the father] left the residence with a knife, and that [the mother] had been lodged in the Police cells. The RCMP also advised me that they were contacted in April by angry neighbours who stated that there are a lot of parties at [the mother and father’s] residence.

This paragraph 8 also states that the then foster parent stated that D. had advised her that “Dad pulled Mom down the street by her hair”.

(2) November, 2011 - In paragraph 20 of Exhibit P-1, the father’s sister had phoned Social Services to say that “[the mother] had smashed a coffee pot over [the father’s] head on the previous weekend”. In the next paragraph, Mr. Nickel deposes that he met with the parents that day, and both of them “admitted to the incident where [the mother] struck [the father]”. During the hearing, the mother testified that she could not recall that happening, and the father denied that happened as well. I am satisfied there was some incident between the parents that day, that involved physical contact. The most I can make of it is that the mother struck the father.

(3) February 15, 2012 - This was referred to in paragraph 5 of Exhibit P-2, in which it was alleged “this matter was in Nipawin Provincial Court and it was learned that [the father] was arrested and placed in cells over the weekend, and was released on an undertaking. [The father] allegedly assaulted [the mother] in front of P.P. while drinking in [the father’s mother’s] home”.

At the hearing, the father testified that he and the mother had had a few drinks at his mother’s house, that the mother was intoxicated and got emotional and hit him a few times, and that he put her on a couch, denying assaulting her. [ 61 ] As with much of his evidence, I found the father’s denials somewhat disingenuous. Obviously, something happened, and I am disinclined to accept the father’s watered down version of anything. Likewise, I find the mother’s lack of recall disingenuous.

However, I am also left with some doubt as to what exactly the RCMP did know about any of these incidents, as there as no evidence from anyone from the RCMP. Further, the affidavits in most cases speak about Mr. Nickel talking to “the RCMP” as if that is a person; I have no way of knowing if the information coming from Mr. Nickel in that affidavit was obtained from the investigating officer or officers, or the receptionist. I accept there is some truth to these allegations, although I accept it more for the basis of background; particulars of precisely what happened, from a reliable source, are lacking.

[62] I am satisfied that there remains an unresolved drinking problem on the part of both parents, and I am satisfied that there havebeen incidents of domestic violence. I also conclude that the parents downplay the situation, as equally the Ministry overemphasizes theextent of the problem. I am also satisfied that, despite the problems I refer to, each of the parents has taken some concrete steps toaddress these problems. [63] Returning to Mr. Witherow, he testified that he found the parents “very cooperative ... open and forthcoming”, and that they“admitted they would have a drink”.

He testified that they said they were social drinkers, who felt they could deal with their alcohol“and from what I could see, they did”. He testified that “for all the time I was with them, I never seen [sic] any signs of alcohol abuse”. Mr. Witherow would see them two or three times a week, often at appointments, and would show up without appointments, andsometimes on weekends. I prefer his evidence to unsubstantiated comments in an affidavit, or the evidence of the father’s sister. I amsatisfied that Mr.

Witherow has seen an improvement in the parent’s attitudes, and that he feels their parenting abilities are sufficient. [64] Mr. Witherow testified that, from his perspective, the main concern for the Ministry was the allegation of alcohol abuse. Hisevidence was that the specific reason he went to deal with the parents was for alcohol abuse and positive parenting. He stated that hespoke to them about going to Alcoholics Anonymous, and he thought they were quite open to giving that a try, and he thought at least themother had gone to a few sessions.

The tenor of his evidence was definitely that the concern of the Ministry was the parents’ use ofalcohol, and the need for the parents to make arrangements for the children’s safety if they went out to a bar for the evening. [65] In cross-examination, he stated that he thought the parents’ house was suitable for raising the children, and that the house wasclean. He agreed that the children seemed to be happy to go home. Even Mr. Nickel, in cross-examination, agreed that the parents had “exhibited good parenting”. [66] As was stated by Mr. Justice Baynton in Saskatchewan (Minister of Social Services) v.

E.(S.), (SK KB),[1992] 5 WWR 289 (Sask. Q.B.), the question really comes down to “whether the children concerned are receiving a level of parentingcare that is below the minimum standard that will be tolerated in our society” (see page 296). As Mr. Justice Baynton pointed out, manychildren might be “better off” with parents other than their natural parents. However, that is not the question.

The question really is, theparents having taken some remedial steps, whether or not they can fully address their shortcomings in a reasonable period of time, suchthat they can consistently reach the required level of parenting care. In my view, given some assistance and clear direction, these parentscan. [67] The situation in this case has not reached the stage at which permanent committals to the Ministry are required. Nor have theparents been given guidance as to what strict conditions, in particular, were required of them, at least in the Ministry’s view, to addresstheir issues.

This is not a situation of taking a risk on the futures of the children. Rather, in my view this is a case where there arerealistic prospects of the parents taking some concrete steps to address issues which do affect their ability to parent each child. [68] I am mindful of the fact that, when the children were apprehended again in January of 2012, the parents discontinued workingwith a parent aide.

In my view, this is hardly surprising, as by then the children were apprehended, and to the parents’ knowledge, theywould not be returned; what need then, in those circumstances, to continue working with a parent aide to parent children no longer intheir care?

As well, the visits that they have had with the children have been sporadic, but as the father put it, it is difficult for him to seehis children pulled away from him at the end of the visit. [69] Further, I am not satisfied on the evidence that the parents have had clear and concise instructions on what steps they need totake to satisfy the Ministry that they are fit parents. With respect, I think a demand for absolute abstinence from alcohol by the parents isunrealistic.

What is required is some kind of plan that can address the needs of the parents, and the children, such that they can meet orexceed the “minimum standard” referred to by Mister Justice Baynton. In my view, there is a positive obligation on the Ministry, as setout in s. 3 of the Act, to “promote the well-being of children in need of protection by offering, whatever appropriate, services that aredesigned to maintain, support and preserve the family in the least disruptive manner”.

I am not satisfied that has occurred in this case,and I am satisfied the parents can, with clear direction, make the necessary steps to properly parent their children. [70] The background of all children is that they have been either in care or, when a suitable placement could not be found by theMinistry, returned to the parents. The Ministry has abandoned its initial application respecting the oldest daughter, now 16 (who has

returned to live with her parents) leaving the other four children in issue. [ 71 ] I am not satisfied that the oldest daughter, P.P., now 15 years old, is a child in need of protection. She is essentially self- sufficient, is desirous of residing with her parents, and is of an age where she is going to reside where she wishes. [ 72 ] I am satisfied, however, that the children C.A., C.B., and D.S. remain in need of protection, for the reasons set out in s. 11 (

b) of the Act , when the parents are putting alcohol ahead of their children’s interests, and when the domestic violence that is present prevents the parents from providing adequate care-giving. In order to determine an appropriate disposition, and in order to address the best interests of the children, I will turn to s. 4 of the Act. (

a) the quality of the relationship each child has with any person who may have a close connection to the child [ 73 ] At the time of the May, 2011 order, C.A. and C.B. were in one foster home placement, but the Ministry since became aware of a complaint or complaints respecting the care children received there, and that operator was no longer allowed to operate a foster home. This evidence came out during the cross-examination of Mr. Nickel and it was apparent that the father was instrumental in bringing these allegations of abuse to the attention of the Ministry.

The children went to other placements, although the evidence was sparse as to where they were, and when. It was clear that finding a suitable placement for the twins was proving problematic and that the children were returned to the care of the mother and father in January of 2012, with that being on a trial basis to see if that could become permanent.

Of the people in the life of C.A. and C.B., I am satisfied that the closest relationship either has with a parental authority is with each child’s parent, despite there being little contact between the children and their parents during the time this matter has been before the courts. [ 74 ] D. was also in the foster home referred to above, removed from there, and removed from the next home he was placed in, due to his being subjected to corporal punishment, resulting in that foster home being shut down as well.

He has been in the care of his paternal aunt since January of 2012 and she stated that D. was doing well, despite there being a lack of visits from his parents. It appears he enjoys a good relationship with his aunt, whom I note is the person seeking a declaration that she is a person of sufficient interest, although I have no reason to doubt that he also enjoys a close relationship as well with his parents.

As with all the children, the evidence as to how he got along with persons he was close to was sparse. [ 75 ] P. was also with her paternal aunt in May of 2011, although by March of 2012 the aunt was requesting that she be moved, as there were problems with P. listening to her aunt. P. spent a short time residing with other family members and was then placed in a group home and was reported to be doing well. However, she has also been staying at various times with her parents. It would seem that she has no close attachment to any extended family members. (

b) the child ’s physical, mental, and emotional level of development [ 76 ] It became apparent in cross-examination of Mr. Nickel that D.S. was at one time prescribed Ritalin. Other than that, I infer that all of the children exhibited discipline issues to varying degrees. The Ministry evidence in this category was quite sparse. [ 77 ] The mother described her daughter P.P. as healthy, and quite lonesome at her group home placement, expressing a desire to run away and come home to her parents.

She described her as a very bright and beautiful girl, although she needs some extra tutoring at school in a few subjects. The mother’s plan is to have her daughter enrolled in school in Nipawin, and to get her involved more in the sporting activities she has expressed an interest in, and shown an aptitude for.

[ 78 ] She described D.S. as a “good kid”, one who did well in school, and one who was not in need of medication when he resided with her and the father. She does not believe that there is a need for him to be on Ritalin, and said that Mr. Nickel told her to wean him off that drug. She stated that she does not see him often, and that she has to go through the Ministry to arrange visits. She described him as an active boy. [ 79 ] She described the twins as normal six year olds who love to hang out with each other, noting that they are very close to each other. [ 80 ] The father agreed with his wife’s assessment of their children. (

c) the child ’s emotional, cultural, physical, psychological and spiritual needs [ 81 ] There was no specific evidence led on any of these factors, although based on what the mother said above, it would seem that the children are close to each other, with P.P. feeling isolated in her current placement. (

d) the home environment proposed to be provided for the child [ 82 ] As the Ministry plans to have C.A. and C.B. placed for adoption, one can only assume this would be something the Ministry would carefully examine at the relevant time. D., if with his aunt, would be in a residence with her and her children, although detailed evidence as to the propriety of that home was lacking.

It would seem that the Ministry plan for P. would be to have her remain at the group home, with her being made aware that she could stay there up to 21 years of age if she chose to. [ 83 ] According to the father, the parents reside in a two bedroom home with a third bedroom in the basement. He notes that he works long hours in the summer, so it appears that he would not be physically present as much as the mother would be, who is going to school and living in Nipawin.

Although neither parent set out an anticipated daily routine if the children were in their care, there is nothing to suggest that the planned home environment would be anything out of the ordinary. Of course, the very essence of the Ministry’s case is that the present home environment is unacceptable, hence the apprehension, but I am looking at this question in light of what is being proposed. (

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 [ 84 ] Again, this can’t be known for the twins, and the paternal aunt did not address this, nor did the Ministry address the day-to- day care at the group home. The mother’s plan is to stay away from alcohol, and to do things that would help her, thereby presumably providing a normal child care regime. She testified that she and the father continue to reside together, although no relationship carries a guarantee of continued cohabitation.

The evidence suggests that the parent’s relationship is along the traditional lines such that the mother would bear the brunt of the day-to-day care requirements. This seems logical in light of the father’s work schedule, which requires that he be out of the home for lengthy periods of time. The mother struck me as a person who is capable of appropriately discharging her parental duties, given some assistance. (

f) where practicable, the child ’s wishes, having regard to the age and level of the child ’s development [ 85 ] I would deem this a consideration only in the case of P., now 15 years old. I accept her mother’s comments that P. is lonely at the group home, and wants to return to the parents home. (

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

[ 86 ] It does not appear, despite the Ministry’s best efforts, that there has been any significant continuity in the care of any of these children. There were problems with placements for all the children, and the only one who has enjoyed anything approaching any real continuity is D., now living with his paternal aunt. I am not satisfied that this consideration is critical. (

h) the effect on the child of a delay in making a decision [ 87 ] This becomes a factor in the case of the twins, who will turn 7 in February, as it is generally accepted that the older a child becomes, the less likely he or she will be adopted. It is less a factor in the case of the others, based on their ages and the proposal of the Ministry respecting those older children. [ 88 ] In Re: S.M. , referred to earlier, Judge Dyck reviewed the law respecting this area at paragraphs 102 and 103, referring to two Queen’s Bench decisions, Re: A.D.W. , [2007] S.J. No. 189 , and Re: L.M.G. , [1992] S.J. No. 67 .

In short, a child’s proper development requires that the child have a stable and nurturing environment. This idea is statutorily expressed in the time limits set out in s. 38(9) and (10). [ 89 ] I am satisfied that it would be in the best interest of each child whom I have found in need of protection to be re-united with their siblings and parents as a family unit.

If that family unit is no longer intact, due to any restrictions that the father may be under respecting contact with the mother due to any pending or resolved criminal charges, there is no reason that the mother cannot parent these children in due course.

I am also satisfied that there should be a reasonable transition period for that to occur, to allow the parents and children to re-establish regular contact, and to facilitate the change in residences for the children. [ 90 ] Therefore, I order, pursuant to s. 37 (1) (a), that each child be returned to the custody of his or her mother and father or, in the event the father is restrained from residing with the mother as a result of any pending or resolved criminal charges, each child be placed with the mother, on the following terms and conditions, which shall be in effect for a period of six months commencing today.

I order that the return of custody to the parents or the mother, as the case may be, shall occur during the school break of February, 2013. [ 91 ] Until then, the parents are to have reasonable access as arranged by the Ministry, and subject to the following terms: (

a) Each parent is to abstain absolutely from the use of alcohol or non-prescription drugs at all times when he or she is with any child, and for the twenty-four hour period prior to the commencement of any access period; (

b) Each access visit shall be no less than once every two weeks, and for a period of at least three hours, at a location specified by the Ministry, with overnight access and/or increased access to be at the discretion of the Ministry. [ 92 ] The terms and conditions referred to in paragraph 90 are as follows: (

a) each parent is to follow all reasonable requests of the Ministry designed to ensure that any issues of alcohol abuse, domestic violence, anger management, and/or parenting skills are being dealt with, with particulars of such requests to be provided in writing to each parent; (

b) each parent is to allow any employee, agent, or representative of the Ministry full and unrestricted access to his or her residence, and the children, to allow the Ministry to monitor the propriety of the residence, and the level of care being provided to the children; [ 93 ] It would be well for the parents to recognize that nothing in this order prevents the Ministry from apprehending any or all of the children if the situation warrants it in future. Thus, they would do well to take concrete steps to address the issues identified as

problems for them in this judgment; failure to do so could well result in a different result if a further court application is forthcoming. B. Morgan, J