IN THE MATTER of a hearing under THE CHILD v. FAMILY SERVICES ACT, 2011 SKPC 106

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 106 Date: June 22, 2011 Location: Melfort _____________________________________________________________________________ Between: IN THE MATTER of a hearing under THE CHILD AND FAMILY SERVICES ACT AND IN THE MATTER OF S.K.S., born February 16, 2001 Appearing: Mr. Dan Heffernan For Wahkotowin Child and Family Services Inc. No one For the mother, C.S. The child is identified by initials in order to protect her identity. JUDGMENT B. MORGAN , J INTRODUCTION: [ 1 ] Wahkotowin Child and Family Services Inc. (the Agency) applied for an order pursuant to s. 37(3) of The Child and Family

Services Act , S.S. 1989-90, c. C-7.2 (the Act ) committing the child, S.K.S., now ten years of age, to the Agency until the child attains the age of 18 (that application was subsequently amended to an application for a six month temporary order under s. 37(1)(c)). The Agency relies on s. 11 (

b) of the Act , alleging “that 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”. [ 2 ] The father is unknown, and his name is not shown on the Registration of Live Birth (Exhibit P-1), and, according to the Affidavit of Mona Neepin, employed as a Family Services Case Supervisor by the Agency, the mother has never disclosed the father’s name, nor is there anything in the Agency’s files containing any information which would identify him.

The Affidavit goes on to state that no male person has contacted the Agency to admit paternity or to request access to the child. This Affidavit was filed in support of an ex parte application to dispense with service on the father pursuant to s. 77(7) of the Act , an application that was granted on September 28, 2010. [ 3 ] The mother appeared on the hearing date of March 9, 2011, and advised the Court that she wished to obtain counsel. The Agency was not in a position to proceed that date either, due to an inadvertent scheduling issue.

The matter was therefore adjourned, and detailed directions were provided to the mother as to how to apply for assistance, and how to obtain disclosure, and it was made clear that the hearing was likely going to proceed, whether or not she had retained counsel, on the adjourned date of June 1, 2011. As well, the mother, as she was self-represented at that time, was directed to, and did, provide her address, and she was further advised that the onus was on her to keep the Court advised of any change of that address.

Further, the mother was to advise the Court by April 4, 2011, if she had not been able to retain counsel by that date, so that further disclosure could be provided directly to her. There was no further contact by the mother with the Court. [ 4 ] On June 1, 2011, Ms. Dahlby, a lawyer with the Melfort Area Office of the Saskatchewan Legal Aid Commission, appeared as a friend of the Court to advise that she was aware that the Melfort office had taken an application from the mother on March 9, 2011, but that she had not been able to establish any contact with the mother.

As a key witness from the Agency was on medical leave on that date, the matter was adjourned to June 22, 2011. [ 5 ] On June 22, 2011, the matter proceeded on Affidavit evidence, in the absence of the mother, whose whereabouts are unknown. ISSUES: [ 6 ] The issues raised by this application are: 1. Is the child in need of protection; and 2. If so, is a long-term order an appropriate disposition? LEGISLATIVE FRAMEWORK: [ 7 ] As mentioned earlier, the Agency relies on s. 11 (

b) of the Act , which provides: 11. A child is in need of protection where: (

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. [ 8 ] In the event that I find the child 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. [ 9 ] 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 service worker in the case before me. [ 10 ]

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: [ 11 ] Exhibit P-3 is an Affidavit of Mona Neepin, sworn June 17, 2011. Ms. Neepin deposed that S.K.S., now ten years of age, was apprehended at a very young age due to her mother’s alcohol abuse and neglect of S.K.S.’s four siblings, all of whom are either in long- term or permanent care through the Ministry of Social Services.

S.K.S. has been in foster care or in the care of persons of sufficient interest for most of her life. [ 12 ] Her mother has been through alcohol treatment on a number of occasions but unfortunately has been unable to free herself from the grip that alcohol so clearly has on her life. This has led to the mother often resorting to a transient lifestyle.

Further, she has not been willing or able to complete any agreement she has reached with the Agency designed to address issues relating to her problem with alcohol or her parenting skills, in addition to the need to provide a stable and safe home environment to raise her children. [ 13 ] Access between the mother and S.K.S. has been sporadic, one of the main problems being that the mother moves frequently, and does not keep the Agency advised of her contact information.

The Affidavit of Joan Constant (Exhibit P-4), Executive Director of the Agency, deposes that she is aware that the mother, who was in a safe environment in Saskatoon, where she was receiving therapy for

her alcohol issue, has left that residence and has not contacted the Agency since. The address Ms. Constant refers to is the same address that the mother provided the Court on March 9, 2011. [ 14 ] Ms. Constant’s Affidavit goes on to state that S.K.S. is doing well in the foster home in which she has been residing since 2008, noting that S.K.S. “has bonded well with this caregiver, and the placement is a secure and stable one”. [ 15 ] Despite these concerns, Ms.

Constant states that, due to the mother’s recent efforts to improve her situation, the Agency is willing to work with the mother once again, to see if a care plan can be put in place. Due to the recent loss of contact, however, the Agency wants to fully assess the circumstances surrounding the mother’s recent departure from her last address, hence the change of the Agency’s position respecting the type of order being sought. [ 16 ] The evidence is undisputable that S.K.S. is a child in need of protection for the reasons set out in s. 11 (

b) of the Act ; she would not receive even a minimal standard of care if she was with her mother at this time. Pursuant to s. 37(1) (

c) of the Act, I order that she remain in the custody of the Agency for a period of six months from today.

Pursuant to s. 37(5) of the Act , and in line with the terms of the draft order filed at the hearing, I also order: - the mother shall have reasonable access to the child as may be arranged with the Agency, provided that the mother shall not consume alcohol during or within the twenty-four hour period preceding any access visit; - the mother shall register for and attend such treatment and rehabilitation programs as may be recommended by the Agency; - the mother shall inform the Agency forthwith of the address of her residence, and the names of any persons with whom she is residing, and shall thereafter advise the Agency of any change in her address, or in the persons with whom she is residing; - the mother shall maintain contact with the Agency and with S.K.S., and shall provide the Agency with such information as they may request regarding her residence, employment or education status, treatment or rehabilitation programming, and family relationships. [ 17 ] As the mother’s location is unknown, a copy of this decision will be left on the court file in Melfort, and a copy will be mailed to Ms.

Constant, to be provided to the mother if and when she re-establishes contact with the Agency. Dated at the City of Melfort, in the Province of Saskatchewan, this 22 nd day of June, 2011. _____________________________ B. Morgan, J