MINISTER OF SOCIAL DEVELOPMENT, Applicant - and- S.M. v. P.L.,, 2022 NBKB 210

FDSJ-117-2021 2022 NBKB 210 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF SAINT JOHN BETWEEN: MINISTER OF SOCIAL DEVELOPMENT, Applicant - and- S.M. and P.L., Respondents DECISION AND REASONS BEFORE: The Honourable Madam Justice M. Deborah Hackett DATES OF HEARING: October 31 and November 1, 2022 DATE OF DECISION: November 8, 2022 APPEARANCES: Nancy J. Martel, appeared for Minister of Social Development Margaret F. Layden, appeared for S.M. P.L. did not appear

NATURE : Guardianship Hackett, J. INTRODUCTION [ 1 ] The Minister of Social Development (“the Minister”) seeks a guardianship order for the children, A.L., born […] 2012, O.M., born […], 2014 and E.M., born […], 2018, with no preservation of a right of access on the part of the children with the respondents. The children will be referred to as A., O. and E. respectively in this decision. [ 2 ] The respondent P.L. is the father of the children. He did not appear at the hearing of the application although he was served with notice of the hearing date. [ 3 ] The respondent S.M. is the mother of the children.

She opposes the Minister’s application. PROCEDURAL HISTORY [ 4 ] The Minister filed the guardianship application on April 7, 2022. A First Court Appearance took place April 14, 2022. The father did not appear. The mother advised the Court she opposed the application and would be applying for Legal Aid. [ 5 ] The matter was adjourned to May 12, 2022 and was ordered to be set for a judicial case conference and trial dates. On May 12, 2022 the mother appeared. The father did not. The mother advised she was still in the process of applying for Legal Aid.

The matter proceeded to the judicial case conference on June 27, 2022 and was not resolved. It then proceeded to the trial dates assigned by the court administrator. [ 6 ] The mother did not appear on the first day of the hearing on October 21, 2022. The matter was adjourned to November 1, 2022 to allow time for her counsel and social worker supervisor Marisa Brown to try to reach her. [ 7 ] The mother attended the hearing on November 1, 2022. [ 8 ] Ms. Brown was the only ministerial witness the mother requested to cross-examine.

The Court granted the Minister’s request that the evidence of its remaining witnesses be given by affidavit. [ 9 ] The mother did not testify or call any witnesses of her own. She did not file any affidavit evidence. The father provided no evidence by way of affidavit. [ 10 ] The Court therefore has relied on the affidavit and oral evidence of Ms.

Brown and the affidavit evidence of the remaining witnesses of the Minister contained in the record on application. [ 11 ] These witnesses are: • Social Worker Lauren Harris • Family Support Worker Maria Parks • Family Support Worker Kelty Hodgin • Foster mother N.H. • Teacher L.R. • Teacher R.F. • Social Worker Supervisor Heather Gagnon • Social Worker Paige Jackson • Family Support Worker Christa Craig • Family and Child Educator Lindsay Grant BACKGROUND FACTS [ 12 ] The Minister’s involvement with this family dates back to 2013.

Between December 16, 2013 and May 19, 2015 the Minister had an open child protection file due to concerns about A. being developmentally delayed, and the mother not following through on medical recommendations for A. as well as concerns with the father’s drinking. [ 13 ] The current child protection case was opened in September 2019 following an intake received in August 2019 alleging emotional and physical abuse and neglect of the children.

The intake reported concerns with lack of supervision of the children, inadequate food in the home, and domestic violence between the parents occurring in front of the children. There also was an allegation the mother was physical towards the children.

[ 14 ] In January 2020 the father assaulted the mother. He was charged criminally. The mother and the children moved out of the family home in January 2020. [ 15 ] On February 10, 2020 the father pled guilty in court to an assault charge but then said he did not hit the mother and he simply threw her phone. A trial date was set for March 5, 2020. On March 5, 2020 the father was released on conditions that he have no contact with the mother and that all access with the children was to be supervised by the Department of Social Development. [ 16 ] On March 12, 2020 Ms.

Harris noted that since the mother and children had moved, there was a tremendous increase in joyfulness within the children. The mother told Ms. Harris she felt the same way and the only concerning behaviour was that O. had been urinating on the floor instead of going to the bathroom. [ 17 ] On May 19, 2020 the mother advised Ms. Harris that the previous night she had to call the police because the father showed up drunk and tried to break in through the living room window. [ 18 ] On June 10 and June 24, 2020 the mother told Ms. Harris the father was still attempting to contact her. On June 24, she told Ms.

Harris she was not interested in a relationship with him and that she changed her number but the father found the number. Ms. Harris said she would give the mother the phone number for Domestic Violence (Outreach). [ 19 ] On July 20, 2020 the police advised Ms. Harris there was a domestic violence incident at the mother’s home to which the police were called that day. The mother reported that the father broke into the home. Ms. Harris met with the mother that day.

The mother told her she felt frustrated because she was trying to move forward in her life but the father kept finding ways to contact her and would not leave her alone. Ms. Harris told the mother she would like to see her reach out to Domestic Violence Outreach that week. [ 20 ] On July 29, 2020 Ms. Harris asked the mother if she had reached out to Domestic Violence Outreach. She said she had an appointment on August 5, 2020. [ 21 ] On August 11, 2020 the mother told Ms. Harris she missed the Domestic Violence Outreach appointment on August 5, 2020. [ 22 ] On August 25, 2020 Ms.

Harris told the mother she would arrange appointments with Domestic Violence Outreach and Victim Services. The mother agreed to this. [ 23 ] It appears in September 2020 the O. and A. were missing school because of head lice. [ 24 ] On October 14, 2020 Ms. Harris went to the mother’s home for an unscheduled visit to see if the girls were being prepared to attend school. The children were still in their pajamas at 8:15 a.m. and the mother said they were just waking up. The mother said that A. would not walk to school. [ 25 ] Ms.

Harris put in place a family support worker, Kelty Hodgin, to work with the mother on a routine for the children. [ 26 ] Ms. Hodgin indicates in her affidavit filed with the court February 11, 2022 that commencing in October 2020 she was to work with the mother on parenting supports once a week. [ 27 ] Ms. Hodgin met with the mother on October 22, 2020. The mother advised she was having difficulty getting the children to listen to her, and that A. had autism but is high functioning and had some behavioural issues such as urinating in the closet at night. She advised Ms.

Hodgin both morning and evening routines were a struggle and the children would not listen to her and that she would get frustrated and yell at them. [ 28 ] At the end of October 2020 the children’s principal advised Ms. Harris that the mother would not walk the children to school and that O. had missed 28 out of 33 days and A. had missed 27 out of 33 or 34 days of school so far. [ 29 ] On October 30, 2020 Ms. Harris went to the mother’s home. She noted there were locks on the children’s doors, there was no bedding on their beds and there was a lack of food in the home.

The children said that their mother locked them in the rooms when “M.” was there. M.C. became the mother’s boyfriend at some point. [ 30 ] Ms. Harris told the mother this was not appropriate and she removed the locks. She told the mother she needed to have bedding on the beds. She asked about food.

The mother said she planned to get groceries that day. [ 31 ] A safety plan was entered into on October 30, 2020 addressing locks being removed from the doors, the mother going to the grocery store for food while the maternal grandmother babysat, and washing and setting up clean bedding for the children. [ 32 ] On November 25, 2020 the mother left a voicemail with Ms. Harris saying she was not sending the children to school because she was fearful, due to being in the COVID orange zone. [ 33 ] On November 30, 2020 Ms. Harris went to the mother’s home.

She discussed her concern that the children were not attending school. The mother said she would take them the next day. The mother also told Ms. Harris the father had showed up at her home asking to see the children on November 26, 2020. She said she told him no and asked him to leave and he did so. [ 34 ] On December 8, 2020 Ms. Harris called the mother to ask if the children were in school that day. The mother said they were not. [ 35 ] The children missed school on December 9, 2020. The mother said she was up with O. all night as she was throwing up and not feeling well. Ms.

Harris advised that the children needed to go to school the next day. The mother agreed. [ 36 ] According to Ms. Hodgin’s affidavit filed February 11, 2022, between October 28, 2020 and December 15, 2020 the mother

missed the six parenting support sessions that were scheduled. [ 37 ] On December 15, 2020 Ms. Harris and Ms. Hodgin went to the mother’s home in follow up to the missed sessions. Ms. Hodgin noted the home smelled of feces and garbage and the floors and walls and surfaces of the home were sticky and needed to be cleaned. The mother advised she was being evicted but had found another residence. She said she was concerned the children would destroy a new home as well, leading to another eviction. [ 38 ] On December 16, 2020 the mother sent a text to Ms.

Harris advising that her coat broke and she did not have a coat to wear to walk the girls to school. Ms. Harris got a coat and brought it to the mother. The mother said she would bring the girls to school the next day. [ 39 ] The mother moved to a new home in or around December 21, 2020. Around the same time the mother sent Ms. Harris a text saying the father was there Saturday. [ 40 ] When Ms. Harris followed up on December 22, 2020, the mother told her everything was fine, that the father showed up and she asked him to leave, he briefly got upset but left, and the children did not witness him coming or going.

Ms. Harris spoke to the mother about putting in a referral to Mental Health. The mother agreed. [ 41 ] Later on December 22, 2020 Ms. Harris received a call from the office of Dr. Young, the children’s physician, advising Dr. Young had not seen A. since June 2013 and had not seen O. since 2018. Ms. Harris booked appointments for all the children on January 20, 2021. [ 42 ] Ms. Harris went to the children’s school on January 8, 2021 because she had received information about concerns for the children’s hygiene and a bruise on A.’s forehead. O. told Ms.

Harris that M.C., the mother’s boyfriend, threw the cat at A. and that is why she had a bruise on her forehead. [ 43 ] Later that day, Ms. Harris met with the mother to discuss concerns received from the school about food insecurity, bruising on A.’s forehead, physical discipline and to review the mother’s new home. Ms. Harris was satisfied there was enough food items for the family in the home. The mother said she was struggling financially since moving. She said she was happy to be where she was but was nervous about getting evicted because of noise from the children. [ 44 ] Ms.

Harris asked the mother about pulling the girls’ hair. The mother said she did not use physical discipline on the girls. She said she had no idea how the bruise on A.’s forehead occurred. Ms. Harris asked if A. was taken to the hospital. The mother said, “No, it was just a bump on the forehead.” [ 45 ] On January 12, 2021 the mother told Ms. Harris she was fearful the father would know where she lived. She told Ms. Harris she was starting to feel down, had not been talking to any friends lately and had been keeping to herself. Ms.

Harris told her she would text her the Mental Health number for extra support, as a referral had been made. [ 46 ] While Ms. Harris and the mother and the children were walking to the apartment, the father’s boss drove by and the father’s two older children walked by. The mother said the father would know where she was and that would ruin her chances of staying where she was. She said she was afraid she would get evicted as no one would put up with the father showing up drunk. Ms. Harris said she would reach out to Domestic Violence Outreach to check if the mother could work with them.

The mother said she was feeling defeated. [ 47 ] Ms. Harris also said she would reach out to the YMCA for the afterschool program and daycare for E. [ 48 ] On January 20, 2021 Ms. Harris rescheduled the children’s appointment with Dr. Young as the mother had texted to say that they were sick. Dr. Young’s office reported E. was last seen in 2018, O. was seen in 2018 and A. had not been seen since 2013. [ 49 ] The appointment was rescheduled to February 9, 2021. On that date Ms. Harris received a call from Dr. Young’s office advising the family did not show for the appointment. When Ms.

Harris asked the mother about it she said she had to pick the girls up from school and had lost track of time. [ 50 ] On February 19, 2021 Ms. Harris spoke to the mother about the children not having attended school all week. The mother said it was ridiculous she must walk with the children to school, and that it is harder than it looks. [ 51 ] In her affidavit filed March 8, 2021 O.’s grade one teacher, R.F., indicated attendance had been a major issue.

O.’s records from her former school indicated she had missed 47 days of school up to December 16, 2020. [ 52 ] Since arriving at R.F.’s school in January 2021 O. had missed an additional 14 days and was tardy six days, up to and including February 25, 2021. [ 53 ] R.F. indicated she was unable to provide marks on the upcoming report card because O.’s attendance was so poor. [ 54 ] R.F. also noted that on January 8, 2021 O. arrived at school smelling of urine, that she arrived January 11, 2021 without a bookbag, lunch bag, water bottle or snack, and from that day on she rarely had a snack provided from home. [ 55 ] L.R. was A.’s grade three teacher as of January 2021.

In her affidavit dated March 8, 2021, she noted A.’s cumulative record showed she missed 46 days of school before the holidays. The attendance records attached to her affidavit indicate after the holidays, between January 7, 2021 and February 22, 2021, A. had 10 unexplained absences. [ 56 ] L.R. deposed the mother paid for school lunch and A. received lunch and milk daily. However, she noted she was often sent to school without a snack and sometimes arrived with no bookbag, snow pants or mittens.

[ 57 ] Also on February 19, 2021 Ms. Harris asked the mother if she had been in contact with Mental Health or the family doctor. The mother said she had not. Ms. Harris spoke to the mother about drinking when the children are present. The mother said she will have a couple of drinks so she can calm down, but does not black out. [ 58 ] At a Permanency Planning Committee meeting (PPC) on February 22, 2021 the Minister made the decision to seek a supervisory order. [ 59 ] The next day, February 23, 2021, Ms.

Harris received an intake that the mother hit the children with a shoe at bedtime. [ 60 ] R.F. deposes in her affidavit she contacted Ms. Harris on February 23, 2021 because O. had explained she was tired because she had peed her bed that night and her mother had to get her up and bathe her. O. said her mom hits her with a shoe at bedtime and sometimes hits her sister with the shoe. [ 61 ] On February 25, 2021 Ms. Harris met with the children at school. O. told her the mother hit her with the shoe at bedtime every night. She said she hit her on her arms, but there were no markings on her arms that Ms.

Harris observed. When Ms. Harris asked her why, O. said because she and A. watch TV in their mother’s bedroom. O. also said that M.C., the mother’s boyfriend, slapped the mother. A. told Ms. Harris bedtime was hard because the mother hit O. with a shoe. [ 62 ] Ms.

Harris deposes that when she spoke to the mother afterward, she took the information in a “disengaging” manner and said, “Oh yeah, I beat the hell out of them.” [ 63 ] With respect to the report about physical violence between her and M.C., the mother said, “Oh yeah we beat the hell out of each other.” [ 64 ] On March 3, 2021 the Minister filed the application for a supervisory order.

On March 11, 2021 an interim supervisory order was made on the following terms: • The mother shall work with the family support worker to establish daily household management skills. • The mother shall attend individual counselling with respect to her mental health, that she will ensure the children are up and ready for school in the morning and are attending school daily. • The mother shall work with family support worker in developing a routine to help her get the children ready for school. • E. shall attend full-time daycare and the mother will work with FACE (Family and Child Education). • The mother shall ensure the children make it to all medical appointments and will follow up on medical recommendations. • The mother shall work collaboratively with the Minister and professionals involved with the family. • The mother shall abide by the no contact order with herself and [the father] and is to attend Domestic Violence Outreach services. [ 65 ] On March 26, 2021 Ms.

Harris asked the mother if she had called the dentist or doctor’s offices or daycare for E. The mother said she had not called the dentist or doctor’s office but had left a message with the daycare. [ 66 ] At a March 30, 2021 PPC it was noted that: • The mother had missed a February 29, 2021 and March 2, 2021 appointment with Dr. Young for the children. • Since February 22, 2021 the girls had missed more school. A. had missed eight days and O. had missed nine days.

There were ongoing concerns that O. smelled of urine and the school had to change her clothing. • The mother indicated that she felt there was an error with respect to missed school as she was taking the girls to school, but they might be late. • It was noted the mother had not worked with the family support worker on parenting support. • E. was not registered in daycare. • The intake about emotional abuse, with the allegation the mother hit the children with her shoe at bedtime, was discussed.

The mother denied hitting the children with the shoe. • The mother told the meeting O. had been wetting the bed in the past but was doing better. With respect to the reports that O. had clothing that smelled of urine at school, the mother said she bathed the girls. Protective care is taken [ 67 ] On April 16, 2021 O. arrived at school with a severe cut on her hand that was bleeding profusely. When Ms. Harris spoke to O. she first told Ms. Harris she did not know what had happened.

She then said she had jumped out of a window and that she saw her father. [ 68 ] The mother said she was not going to go to the hospital and that O. was fine. Ms. Harris told her they would be going to the hospital, and the mother reluctantly agreed. [ 69 ] At the hospital the mother said the cut happened two days before and that she did not know what happened. She said the kids were playing at the park. She was vague when Ms. Harris asked her about the injury.

[ 70 ] With respect to O.’s statement that she had seen her father, the mother admitted she met with the father at the park with the children and thought it was fine as he was okay to be around her. [ 71 ] Because of the concerns the father was around the children, and that there was no medical follow-up for or explanation for O.’s injury, the children were taken into protective care. [ 72 ] Later that day on April 16, 2021 social worker supervisor Heather Gagnon and social worker Paige Jackson drove A. and E. to their foster placement. O. was at the hospital with Ms. Harris. A. told Ms.

Jackson in the presence of Ms. Gagnon that E. had cut O.’s finger with a knife. A. said she heard O. crying and there was lots of blood, and her mother and father put Band-Aids on the cut. Events since protective care taken [ 73 ] Since April 16, 2021 the children have remained in care of the Minister under custody orders made on consent. They have resided with the same foster parent, N.H. since going into the Minister’s protective care. [ 74 ] Ms. Harris has continued as lead the social worker on the file. However, she went out on medical leave in mid-September 2022. Marisa Brown, her supervisor, has stepped in.

Case plan [ 75 ] Since April 2021 the father has not engaged in any case planning with the Minister. He has not attended visits with the children. [ 76 ] The mother signed a case plan on July 20, 2021 (found at pages 62 to 65 of the record.). An updated case plan was signed in April 2022 (found at pages 87 to 90 of the record) The objectives remained the same, although some of the activities were modified. [ 77 ] Objective number one related to visits. The children were to have visits with the mother and they were to spend quality time together.

The goal was to return the children to the mother’s care. [ 78 ] The mother agreed to inform Ms. Harris when she was available for visits. Initially visits were to be at the offices of Supreme Human Services. However, in the updated version of the case plan they were to be held at the mother’s house. [ 79 ] Objective number two was that the mother was to ensure the children have a safe, stable home free of domestic violence. The mother was not to allow the father in the home and if he did come to the home, she would call the police.

As well she was to reach out to Domestic Violence Outreach to learn about healthy relationships. [ 80 ] Objective number three was that the mother would ensure the children’s emotional, development and physical needs were met. This included: • ensuring the three children attended all medical appointments and therapeutic appointments, i.e.

FACE, and following all recommendations • ensuring the children’s educational and developmental needs were met by consistent attendance at medical appointments and school • working with a family support worker on routine and parenting and following their recommendations [ 81 ] Objective number four was that the mother would ensure her mental health by attending Mental Health Services.

The activities included the mother: • attending appointments with her family doctor and/or medical specialists and following their recommendations • attending appointments with her mental health counsellor and following their recommendations related to coping with her depression [ 82 ] As summarized below the mother has made little progress on achieving the objectives in the case plan. Visits [ 83 ] Family support worker Christa Craig indicates in her affidavit filed February 14, 2022 that she was assigned to supervise visits between the mother and the three children in April 2021.

She initially supervised a two-hour visit twice a week. In August 2021 the

schedule was increased to three visits a week for two hours each. [ 84 ] At a visit on May 12, 2021 Ms. Craig noted that the mother was on time and played with the children. However, she also noted A. was reserved, the mother was not very nurturing, and O. asked the mother why she had hit them with a shoe. A. also said if the mother hit her sisters again she would tell on her. The mother did not respond to the statements. [ 85 ] On May 19, 2021, Ms. Craig noted the mother said she understood age-appropriate discipline and was willing to try 1-2-3 Magic. However, Ms.

Craig was concerned the mother had limited control over the children when they were misbehaving. The girls were playing a card game with the mother and O. started ripping cards from A.’s hand and was yelling at her and throwing them on the floor. Ms. Craig had to intervene as the mother was not doing anything. [ 86 ] When they went outside, E. and O. started throwing rocks and almost hit a car. The mother’s response was, “That would be expensive.” Ms. Craig explained to the mother she should speak to the children and tell them that if they did it again they would have a time out.

The girls started to throw rocks again. The mother did not do anything.

[ 87 ] On June 9, 2021 the mother cancelled a visit. Ms. Craig deposed the mother was told the children had arrived for the visit and was asked to reconsider cancelling, but she said it was too hot outside. [ 88 ] The mother attended a visit on June 14, 2021. She was on time for the visit, greeted the girls, encouraged them to clean up, and sat on the floor with them and went for a walk. [ 89 ] When there was popcorn on the floor after snack, Ms. Craig explained that everyone who had a snack had to help clean up, but O. refused and the mother did not say anything. Ms. Craig intervened to ensure O. assisted.

The mother had not planned anything to do after the snack. [ 90 ] On June 15, 2021 Ms. Craig noted the mother was on time for the visit and provided snacks. However, she noted the mother continued to be overwhelmed when the children misbehaved. [ 91 ] Ms. Craig’s evidence is that after June 15, 2021, the mother was engaged and the children behaved at visits the mother attended.

However, her attendance at visits declined: June 2021 – seven scheduled visits; the mother cancelled three July 2021 – four scheduled visits; the mother cancelled two August 2021 - seven scheduled visits; the mother cancelled four September 2021 - 12 scheduled visits; the mother cancelled eight October 2021 – eight scheduled visits; the mother cancelled six [ 92 ] Ms. Craig deposes that in November 2021 she was advised visits were on hold until the mother met with her social worker. [ 93 ] Ms. Harris met with the mother in December 2021.

A plan was made for visits to take place once per week, and if the mother had consistent attendance, after a month they would be increased to twice a week. [ 94 ] Visits resumed on December 6, 2021. However, Ms. Craig deposes that of eight scheduled visits in December 2021, the mother attended three. She cancelled three and two were cancelled because the children were in isolation due to COVID. [ 95 ] In January 2022 six visits were scheduled. The mother cancelled three. [ 96 ] Ms. Harris put a hold on visits on January 12, 2022 because of Covid at the foster home.

She told the mother as of January 28, 2022 visits would take place twice a week from 2:15 to 4:30 p.m.

A. would go Tuesdays and O. and E. would go on Thursdays. [ 97 ] The mother sent a text on February 1, 2022 cancelling a visit as she said she needed to go to the food bank, she cancelled on February 3, 2022 saying her kitchen ceiling was leaking and she cancelled on February 10, 2022 saying she did not feel well. [ 98 ] On March 2, 2022 visits were changed so the three children would go together to the visits. [ 99 ] At a PPC on March 29, 2022 it was discussed that the mother was averaging about two visits a month.

She demonstrated little routine and interaction with the children during the visits and often did not allow visits to take place in her home but insisted they be outside although the children were not dressed for cold weather. There also were concerns the mother had been bring a new partner, Z. to the visits and he was doing most of the caring for the children. The mother still needed prompting to address behaviours and care of the children. [ 100 ] A further PPC took place April 1, 2022. The mother said “random weirdos” had been popping up at visits. She denied she knew who Z. was.

She said M.C. showed up at a visit. She also said the father was showing up at her apartment. She asked for visits to be at the offices of Supreme Human Services. [ 101 ] At a meeting on April 22, 2022 the mother told Ms. Harris she cancelled visits because there was nothing to do in the rooms at Supreme, where she had asked visits take place due to her concerns about the father showing up during visits in the community. Ms. Harris recommended the mother plan activities when she met with the family support worker. [ 102 ] On April 25, 2022 Ms.

Harris received a call from the foster mother who said the children acted out at day care and they had never done that before. It happened before a visit the next day. She told Ms. Harris the children were beginning to expect visits to be cancelled and became anxious the day before. The week prior to her call no visits were attended and the week before that the mother went to one visit. [ 103 ] Between April 26, 2022 and May 17, 2022 the mother missed several scheduled appointments with Ms. Harris. [ 104 ] The mother did attend a meeting with Ms.

Harris on May 17, 2022, where it was discussed that if a visit was going to take place in the community and the father showed up, the support worker would immediately return with the children to Supreme Human Services’ offices [ 105 ] On June 9, 2022 Ms. Harris was supposed to meet the mother during a visit. However, the mother did not attend the visit. The foster mother reported since the mother had stopped attending visits, A. was peeing the bed at night again and was telling the foster mother, “Mommy cancelled again [N].” [ 106 ] The mother left a message for Ms.

Harris on June 16, 2022 cancelling a visit and saying she had cancelled a few visits lately as she had the flu. She said she was using a friend’s phone as she was without a cell phone.

[ 107 ] Ms. Harris noted that on June 27, 2022, at a court appearance, the mother asked for more supervised access. Ms. Harris told her no more visits could be added as what was currently scheduled had not been attended. [ 108 ] On August 2, 2022 the mother told Ms. Harris she had a miscarriage and would not be able to attend access that week.

She attended no visits in August or September of 2022. [ 109 ] As set out in the affidavit of Kelty Hodgin dated October 7, 2022, of 136 possible visits between May 2021 and September 2022, the mother attended 52 and missed or cancelled 72. [ 110 ] Social worker supervisor Marisa Brown has been handling the file since September 15, 2022. On September 26, 2022 Ms. Brown met with the mother. The mother said she had not attended visits in a long time and said she did not realize they were switched to the weekend. [ 111 ] Ms. Brown called Ms. Hodgin at Supreme Human Services with the mother in her office. Ms.

Hodgin confirmed visits were Saturdays from 2:00 p.m. to 4:00 p.m., with the mother being required to call to confirm the visit by noon, as well as Sundays from 10:00 a.m. to noon, with the mother being required to call to confirm by 8:00 a.m. [ 112 ] Ms. Hodgin advised she provided the mother with the

schedule on a piece of paper a few weeks before and said visits were changed to weekends because O. had started Sistema (a music program) and the other girls had after school programs. [ 113 ] On October 14, 2022, Ms. Brown went to the mother’s home. Ms. Brown acknowledged on cross-examination she did not have concerns with the state of the home, from what she saw. There was no urine smell. [ 114 ] On that day, Ms. Brown asked the mother how the visits were going. She did not get much of a response. The mother said that the times she was to call to confirm visits had been changed and she was not aware of this.

Ms. Brown advised the mother visits had been switched to weekends since September 2022 and reminded her she gave her a copy of the

schedule and had indicated when to call. [ 115 ] The mother then said it was hard on the girls and hard on her to continue to attend visits and she said visits would end anyway. Ms. Brown asked the mother if she wanted her to put the visits on hold. The mother said she knew it would look bad on her but it was too hard on the girls and too hard on her. She confirmed visits were to be put on hold until the guardianship trial. [ 116 ] The children’s foster mother, N.H., deposes at paragraph 12 of her affidavit dated October 13, 2022, that A. misses her mother dearly.

When her mother has missed visits she has come back to the foster home crying and very sad. She said A. does not get mad but makes excuses for her mother’s absence. [ 117 ] N.H. also indicates on October 8, 2022 the children had a visit with the mother for the first time since August 2022 and were very excited when they returned. They told the foster mother that the mother promised to see them the next day at a scheduled visit. [ 118 ] However, on October 9, 2022 the children got ready and waited for hours but the visit did not happen. A. and O. cried.

The next day the mother emailed the foster mother to say she had mixed up the time and that was why she missed the visit. [ 119 ] The foster mother also deposes that many times the mother cut visits short because the children were out of control with their behaviours and would not listen. Domestic Violence [ 120 ] On May 7, 2021, Ms. Harris asked the mother to attend Mental Health and Domestic Violence Outreach. [ 121 ] The father attended a meeting with Ms. Harris on May 12, 2021.

He said he had made an appointment for counselling with Margo Butler and that he was focusing on his relationship with the mother. [ 122 ] When Ms. Harris brought up the concerns about domestic violence in the parents’ relationship, he said there was no domestic violence. With respect to the charge from a year ago, he said he did not hit the mother and that he was trying to take her phone from her and she ended up hitting herself in the face trying to hold on to the phone. [ 123 ] The father said that since he got out of jail in March, he and the mother had been back together.

However, when protective care was taken of the children she ended the relationship with him and went back to her ex-partner M.C. [ 124 ] Ms. Harris met with the mother on May 28, 2021. The mother advised that she had met with a person at Domestic Violence Outreach once, but she missed an appointment and did not reschedule it. [ 125 ] Ms. Craig deposes that on June 9, 2021 the mother cancelled a visit after Ms. Craig had already picked up the children. Ms.

Craig was told by O. the mother probably cancelled the visit because her boyfriend M.C. probably pushed her and punched her again. [ 126 ] At a visit on June 14, 2021 O. asked her mother if she missed the last visit because M.C. hit her. A. said, “Well he punches and pushes you.” The mother said he did not harm her. [ 127 ] At a PPC on August 24, 2021 there was a discussion about the mother being in a relationship with M.C. and the children reporting intimate partner violence between them. The mother denied the allegations.

It was noted the mother had not followed through with domestic violence counselling and felt she did not need it. [ 128 ] On September 22, 2021 Ms. Harris met with A. and O. at their school. O. said she saw her mother and father together at Tim Hortons Wednesday after school. [ 129 ] Ms. Harris met with both respondents on December 1, 2021. They stated they were kind of in a relationship, but not really. The

mother said she was no longer seeing M.C. [ 130 ] On December 2, 2021, when Ms. Harris and the mother and father were at court for a judicial case conference, the mother told Ms. Harris a situation took place between her and the father before court that day and the police advised them to stay away from each other and walk away. [ 131 ] At a PPC on April 1, 2022 the mother advised that the father was at her apartment building the week before. It also was noted that at a recent court appearance the father had appeared and was told the leave the building.

After court the mother and the father had engaged in yelling and screaming outside the court. [ 132 ] On April 22, 2022 Ms. Harris and the mother called Domestic Violence Outreach but did not get an answer. [ 133 ] On May 4, 2022 the mother did not show up for a meeting with Ms. Harris. Ms. Harris wrote a letter to advise her she had an appointment for domestic violence counselling scheduled for the next day, May 5, 2022. She dropped the letter off to the mother’s home. Ms. Harris received confirmation the mother attended the appointment on May 5, 2022. [ 134 ] On May 17, 2022 the mother told Ms.

Harris that she had another appointment with the Domestic Violence Outreach worker for that same morning, and she had to call and rebook it because it conflicted with her appointment with Ms. Harris. There is no evidence she rescheduled the appointment. [ 135 ] Ms. Harris deposes that the mother continues not to engage with Domestic Violence Outreach. Medical and therapeutic appointments for the children [ 136 ] As of April 16, 2021, when the children were taken into protective care, the mother had not rescheduled medical appointments for the children with Dr.

Young, [ 137 ] On February 15, 2022 the mother declined to go to an appointment for A. in Moncton which A. wanted her to attend, because she was scared. The mother told Ms. Harris she gets car sick and could not go. [ 138 ] The foster mother indicates in her affidavit that since she has been residing with her, O. has had many dental appointments as a result of her dental issues. She says the mother has never attended any medical or dental appointments for the children despite the foster mother advising her of the times and offering transportation. [ 139 ] Ms.

Harris again referred the mother to FACE services at some point around March 2021. However, on June 28, 2021 Ms. Harris advised the mother she received information from FACE about unsuccessful attempts to reach her by phone, and that they left her a letter asking her to contact them, but they received no response. FACE terminated services effective May 31, 2021. [ 140 ] The mother told Ms. Harris said nobody had contacted her. She said maybe it was because she had no minutes on her phone. [ 141 ] Lindsay Grant is an educator employed by FACE.

She deposes in her affidavit filed February 11, 2022 the mother was (again) referred to FACE on August 31, 2021 and Ms. Grant was provided with E.’s file to see if she qualified for in-home services. [ 142 ] According to the foster mother, an assessment with FACE was completed in August 2021. [ 143 ] Ms. Grant deposes that she tried to call the mother twice at the end of September, 2021 at phone numbers provided for the mother but the numbers were not working. [ 144 ] On October 1, 2021 Ms.

Grant sent a letter to the mother advising of the referral for E. and that she had not been able to contact the mother to set up the initial visit to begin services. She asked the mother to contact her if she wanted services.

Her letter provided a date to respond and advised if no response was received, FACE would discharge her. [ 145 ] On October 19, 2021 the mother was (again) discharged from FACE as no response was received to the letter. [ 146 ] At the April 1, 2022 PPC it was decided that a further referral would be sent to FACE to request the file be reopened to work with the mother. [ 147 ] On May 17, 2022 the mother attended Ms. Harris’s office for an appointment. She said that she had missed the call the day before from FACE but they would be calling her back that day. [ 148 ] According to Ms.

Harris’ affidavit evidence the mother continues not to engage with FACE. [ 149 ] The mother did attend an intake appointment with a Child and Youth counsellor for the two older children on May 6, 2022, along with the foster mother and Ms. Harris. Work with the family support worker [ 150 ] In her affidavit filed February 11, 2022 family support worker Kelty Hodgin deposes that between January 12, 2021 and June 8, 2021, 18 parenting support sessions were scheduled. The mother cancelled three with reasons, one was cancelled because of COVID restrictions and another was cancelled due to bad weather.

Thirteen sessions did not proceed because the mother was not home when Ms. Hodgin came to her home. [ 151 ] Ms. Hodgin had her first actual session with the mother on June 8, 2021. Ms. Hodgin observed the house was neat and tidy. She informed the mother they would be working on parenting techniques and asked her to prepare a routine for her access visits.

[ 152 ] However, the mother was not home for the next two sessions in June 2021. She also was not home for a session set for July 13, 2021. [ 153 ] A session took place on August 3, 2021. Ms. Hodgin observed the mother’s parenting during a visit and the progress she was making in implementing structure and routine. She noted the girls were playing quietly with their grandmother when she arrived. [ 154 ] However, at some point the children put their backpacks on backwards and were running into each other. The mother told the eldest child to stop, but not the younger child.

The children were wandering around the apartment being disruptive after the mother took the backpacks away. [ 155 ] The mother cancelled a session in August 2021 as she needed to take one of the children to an appointment. [ 156 ] Ms. Hodgin ended her involvement with the mother in September 2021, having only been able to meet with her four times. [ 157 ] The Minister subsequently arranged for family support worker Maria Parks, with Supreme Human Services, to work with the mother on routine. They were to meet once a week for about two hours. [ 158 ] In Ms.

Park’s affidavit dated February 14, 2022 she indicates her first session with the mother was on October 25, 2021. Of the 15 subsequent sessions scheduled until February 14, 2022, the mother attended one and was not home or cancelled 12 sessions. Ms. Parks cancelled two sessions. [ 159 ] On January 6, 2022 Ms. Parks and the mother discussed activities for the children and routine. The mother advised she struggled with morning and bedtime routine. She said she had a routine, but struggled to keep it. [ 160 ] Ms. Parks filed an updated affidavit dated October 5, 2022.

She indicates on April 14, April 21 and May 12, 2022 she attended at scheduled access visits to provide parenting support, but the mother did not attend the visits. [ 161 ] On May 19, 2022 that mother attended a visit and Ms. Parks worked with her and the children. Ms. Parks observed that all three children were hyper and screaming, climbing on furniture, throwing garbage on the floor and climbing on top of each other. [ 162 ] She discussed with the mother and the children behaviour expectations, and they worked on a list of rules. Ms. Parks modeled timeouts for E.’s behaviour.

She and the mother discussed planning activities for the children for each visit. During the visit A. and E. started climbing chairs and the mother told them to get off the chairs. Ms. Parks told the mother she needed to do more and she modeled what to do. [ 163 ] Following this the mother missed visits which Ms. Parks was scheduled to attend on May 26, 2022 and June 2, 2022. [ 164 ] Ms. Parks was not available June 9, June 16 or June 23, 2022. [ 165 ] The mother attended visits on June 30, 2022 and July 7, July 21 and July 28, 2022. The weather was hot and sunny for the last two visits.

The mother had not brought sunscreen or hats or water for the children. The visit on July 28, 2022 ended because the mother acknowledged it was too hot to be outside and she did not want to have the visit inside. [ 166 ] The mother did not attend any visits in August or September 2022. Ms. Parks deposes she is waiting for scheduled session times for the month of October 2022 to be confirmed. [ 167 ] In light of the fact that the mother confirmed she wanted visits to be put on hold, Ms. Brown sent a text message to the mother on October 14, 2022 asking her whether she also wanted parenting sessions with Ms.

Parks be put on hold. The mother has not responded to this. [ 168 ] At paragraphs 15 and 16 of her affidavit Ms. Parks summarizes her observations about the sessions that have occurred. She says they go relatively well and the mother is engaged in the discussion, she offers information on her and the children that is related to the topic being discussed, she answers questions and sometimes offers input. She has expressed she is willing to try different techniques. [ 169 ] Although from the affidavit of Ms.

Parks it appears there were times when the mother did not follow through with what she suggested, i.e. repeating to the girls what the rules are when they are not behaving, I conclude that this was not a consistent problem as Ms. Parks deposes the mother does follow through when suggestions are made by her. [ 170 ] Ms. Parks deposes that her biggest struggle is getting the mother to attend the sessions. Ensuring her mental health by attending mental health services [ 171 ] On May 7, 2021 Ms. Harris asked the mother to go to Mental Health. On May 28, 2021, Ms.

Harris asked the mother if she had been meeting with Mental Health Services. The mother said she thought Domestic Violence Outreach was Mental Health and that she had met with Domestic Violence Outreach once, but missed an appointment and had not rescheduled it. [ 172 ] At a PPC on August 24, 2021 it was noted that the mother’s mental health was a concern as she was easily stressed and overwhelmed. The mother’s mother, who was in attendance, said she would bring the mother to Mental Health for referral after the meeting. [ 173 ] The mother advised Ms.

Harris she had connected with Mental Health on December 6, 2021. The Mental Health clinician advised Ms. Harris that the mother went to the appointment on December 6 and was told to practice her skills before booking another appointment. [ 174 ] On April 22, 2022 the mother met with Ms. Harris. The mother said she was going to make an appointment with Mental Health

that day, after their meeting. [ 175 ] On July 13, 2022 Ms. Harris met the mother. She said she had appointments booked in July with a mental health and domestic violence counselor. However Ms. Harris deposes that as of October 2022, the mother continues not to engage with Mental Health Services. The Court has no information from the mother she attended any appointments since December 2021.

POSITION OF THE PARTIES The Minister’s position [ 176 ] The Minister submits it is in the best interests of the children that a guardianship order be made. [ 177 ] At a permanency planning committee meeting on April 1, 2022 the decision was made to seek guardianship of the children. Ms. Harris sets out the reasons the Minister believes a guardianship order is in the best interests of the children at paragraph 22 of her April 7, 2022 affidavit: 22.

Despite [the mother’s] strengths, in that she voices that she loves her children and wants to have them home, and recognizes that she requires support, the Minister is seeking to the Court of Queen’s Bench of New Brunswick, Family Division, for a Guardianship Order with respect to the children [A., O., and E.] as the Minister believes it would be in the best interest of the children due to the following reasons: a) [The mother] has not successfully shown that she is able to address her mental health despite numerous attempts by the Minister in assisting them to require counselling services; b) [The mother] does not engage in meeting with service providers that the Minister has requested the parent to work with to best meet the needs of the children, specifically with FACE (Family and Child Education) and Domestic Violence Outreach; the attending of medical appointments for the children, and for [the mother] to work on routine and structure with a Family Support Worker from Supreme; c) [The mother] has admitted that her mental health and relationship with the children’s father, [P.L.] affects her ability to parent the children. [The mother] continues to engage in arguments over the relationship with [the father], this impacting the focus on the children’s safety and well-being. [The mother] and [the father] continue to live in a domestic violence situation;

d) During visits [the father] has been reported to come to the home to interrupt visits, since April 1, 2022, at [the mother’s] request, visits will be taking place at Supremes’ office to prevent this interruption continuing;

e) There is a significant need of engagement from [the mother] with service providers for [the mother] to ensure that the physical, developmental, educational, emotional and mental well-being of [A., O., and E.] are met;

f) If the Guardianship Order is granted, the Department will plan for permanency of the children through adoptions. [ 178 ] The Minister acknowledges it would be possible for the Court to make a further custody order as the children have not been in the care of the Minister for 24 months at this point. However the Minister takes the position that such a lesser order is not in the best interests of the children. [ 179 ] At paragraph 23 of Lauren Harris’s affidavit sworn April 7, 2022, she deposes: 23.

The Minister does not believe a lesser order would be appropriate due to the following reasons: a) [The mother] has been working with the Department for the return of her children’s care since April 2021. Since the children have come into our care, there has been an inability to establish unsupervised visits with [the mother] and her children due to the lack of consistent attendance with supervised visits. There continues to be concern for [the mother’s] care of the children unsupervised, for despite supervision being present concerns arise.

For an example a recent visit took place at Rainbow Park, the children were not properly dressed for the outside visit and were crying to [the mother] requesting to go home and [the mother] was unable to understand the children’s prompting; b) [The mother] continues to engage with [P.L.], who she has a long history of severe domestic violence, this puts the safety of the children at risk.

c) The children continue to have medical appointments being in the Minister’s care, and these are not attended by [the mother]. When the children came into our care in April 2021, Dr. Neil Young reached out to advise he had not seen the children in years, in addition to this, the children had no experience in attending eye or dental appointments. When the children began attending these appointments with the foster parent, there were several concerns noted with respect to medical neglect, such as: Child not being followed by Autism specialists despite recommendations from Dr. Neil Young and Dr. Todd Lambert.

There has been no dental care which has resulted in possible damage to roots of the adult tooth coming in. Youngest was to be followed with speech therapy, FACE, and daycare; however, [the mother] never followed on these medical recommendations.

d) During the course of my involvement with [the mother] since the children have been under the Minister’s care, offered [the mother] a possible 128 visits from April 2021 to January 2022 [The mother] attended approximately 19 visits according to our Family Support Worker notes provided from Supreme Human Services. [ 180 ] The Minister takes the position no right of access on the part of the children with the respondents should be preserved because of lack of consistency in engagement on the part of the mother and the father with the children.

The Minister further submits that an order for access may hamper the Minister’s efforts to transition the children into an adoptive home, and submits there is no evidence an access

order would be in the best interests of the children. The mother’s position [181] The mother’s counsel acknowledged there is more work to be done by the mother for reunification to occur.

However, she arguedit is in the best interests of the children that the Court make an order of custody for a period of three or six months to allow the mother tocontinue to work with the Minister in order to overcome the issues that still remain. [182] The mother’s counsel submitted if guardianship is granted, a right of access on the part of the children with the mother should bepreserved because there is love and affection between the children and her, and the children are old enough to know her and they enjoyspending time with her.

She submits the older children will definitely remember time with the mother and the younger child may as well,and the children would continue to benefit from interaction with the mother. ISSUES 1. Is it in the children’s best interests that the Minister’s application for a guardianship order for the children be granted? 2. If guardianship is granted should a right of access on the part of the children with the respondents be preserved? LAW AND ANALYSIS [183] The Minister requests an order for guardianship of the children.

Section 56(1) of the Family Services Act states: The court may make a guardianship order transferring from a parent to the Minister on a permanent basis the guardianship of a child,including the custody, care and control of, and all parental rights and responsibilities with respect to, the child. [184] Section 53(2) of the Family Services Act states that when disposing of an application under the child protection part of the Act: The court shall at all times place above all other considerations the best interests of the child. [185] The Court must consider the best interests of the child from the child’s perspective and not from the perspective of the parents.(See New Brunswick (Minister of Health and Community Services) vs.

M.L., (SCC), [1998] 2 S.C.R. 534). [186] The following definition of “best interests of the child” is found at

section 1 of the Family Services Act: “best interests of the child” means the best interests of the child under the circumstances taking into consideration (

a) the mental, emotional and physical health of the child and his need for appropriate care or treatment, or both; (

b) the views and preferences of the child, where such views and preferences can be reasonably ascertained; (

c) the effect upon the child of any disruption of the child’s sense of continuity; (

d) the love, affection and ties that exist between the child and each person to whom the child’s custody is entrusted, each person towhom access to the child is granted and, where appropriate, each sibling of the child and, where appropriate, each grandparent of thechild; (

e) the merits of any plan proposed by the Minister under which he would be caring for the child, in comparison with the merits of thechild returning to or remaining with his parents; (

f) the need to provide a secure environment that would permit the child to become a useful and productive member of society throughthe achievement of his full potential according to his individual capacity; and (

g) the child’s cultural and religious heritage; Best Interests Analysis (

a) the mental, emotional and physical health of the child and her need for appropriate care or treatment, or both, and (

f) the need to provide a secure environment that would permit the child to become a useful and productive member of societythrough the achievement of her full potential according to her individual capacity The children A. [187] A. is now 10 years old. She was diagnosed with autism at 18 months. The foster mother deposed A. has anxiety and low self-esteem. She has speech difficulties and often relies on her younger sister to speak for her.

She has poor memory and delay processingnew information. [188] According to the evidence of L.R., who was A.’s grade three teacher as of January 2021, when A. arrived at the school she did notspeak much and L.R. was often unsure if she understood what she was asking. They were working on letters and sounds in class but itwas difficult to see gains because of the amount of time in school she had missed.

[ 189 ] The foster mother deposed A. was very thin when she arrived at her home in April 2021. A. has since gained weight. [ 190 ] A. was not toilet trained when she first arrived. The foster parent says they worked with her on that for months and she has made progress, but she will regress when upset and stressed, for example when she was at a relief foster home in September 2022, she urinated on the floor. [ 191 ] A. can bathe and wash her own hair but needs to be checked on. [ 192 ] She has had oral issues. She sees the orthodontist and wears a retainer at night.

She is supposed to wear glasses but loses or breaks them or will not wear them [ 193 ] A. can be helpful around the house but needs to be given directions one at a time of what to do, including making her bed and brushing her teeth. [ 194 ] The foster mother indicates A. can get overwhelmed or mad and upset if O. is bossy or takes something belonging to her. She will sit on the floor and cry. [ 195 ] A. misses her mother very much, and missed visits make her very sad. She does not get mad but makes excuses for her mother’s absence. A. is seeing a counsellor to help her with coping.

O. [ 196 ] O. is now eight years old. Her grade one teacher as of January 2021 deposed that when O. arrived at the school and was assessed, she only knew two letters of the alphabet, could count to four and had speech delays. Her teacher deposed that her lack of attendance since starting school had an impact on her academics and lack of academic gain. [ 197 ] O. is now in grade three. The foster mother deposes she is intelligent but was behind academically. [ 198 ] At the foster home O. is able to bathe independently.

She needs reminders after school to make her bed and clean her room. [ 199 ] The foster mother deposes O. has had many dental appointments over the past year, with more to come. In June 2021 the foster mother reported that O. had nine cavities due to dental neglect and her two front teeth needed to be removed. [ 200 ] The foster mother says O. is the “leader of the pack” and outspoken. She likes control and routine.

She craves affection and will tell everyone she loves them. [ 201 ] O. was very emotional when she arrived at the foster mother’s after protective care was taken, and often asked when they were going home. The foster mother indicates she now asks if she can live with the foster mother forever. O. also sees a counselor. E. [ 202 ] E. is now four years old. She only spoke three words when she arrived at the foster home 18 months ago. She was not toilet trained and did not sleep well. She is toilet trained as of July 2022. [ 203 ] She loves bath time except for her hair being washed.

She can wash her front independently. [ 204 ] E. was enrolled in daycare in May 2021 and started at the YMCA Early Learning Centre in the fall. She began speech therapy in the spring of 2022. The foster mother indicates her vocabulary continues to grow and she communicates better, although she still has a way to go. [ 205 ] The foster mother describes E. as having a short temper. She has difficulty doing things without repeatedly being redirected. She will scream if she does not get her way.

She has recently started play therapy. [ 206 ] The foster mother deposes that E. tells her she misses her mommy, but she will say this when she in trouble or when she hears the other girls say it. She has come back from visits crying and upset many times. The respondents’ abilities to meet the children’s needs [ 207 ] There have been ongoing concerns of neglect, on the part of the respondents, of the children’s mental, emotional and physical needs. [ 208 ] Earlier on there were concerns about the state of the home and the hygiene of the children. Ms. Brown went to the mother’s apartment in October 2022.

She agreed on cross-examination she did not see any issues in what she saw of the home. There was no smell of urine. She did not see the bedrooms. However, the children have not been living at the mother’s home since they went into protective care 18 months ago. [ 209 ] Both O. and A. have missed significant amounts of school in the mother’s primary care. They have struggled academically. The mother was having difficulty with routine in the morning and getting the children to school. [ 210 ] There have also been reports that the children do not always behave well at visits that the mother has attended.

The foster mother deposes that she has cut visits short because of behaviours. [ 211 ] The Minister has offered parenting support and assistance in the home to help the mother with routine and structure for the children and to provide assistance with dealing with behaviours. While it appears that she was cooperative during the sessions that she did attend, and it appears she was responsive to the suggestions of Ms. Parks, as Ms. Parks states in her affidavit the biggest issue has

been getting her to attend the sessions. [212] This problem goes hand-in-hand with the mother’s lack of attendance at visits with the children. While the mother appears to havemade some effort early on when the children first went into care, by August 2021 she was regularly missing most of the visits. Visits hadto be put on hold in November 2021, and when they resumed she again began missing more than half of them by February 2022.

Sheceased coming to visits at all in August 2022, with the exception of one visit in October 2022. [213] The children were not being followed by their family doctor, and A., who has autism, had not seen Dr. Lambert, the specialist, formany years before the children went into care. [214] The mother still does not appear to be able or willing to go to the children’s appointments consistently, despite being advised ofthe appointment times and transportation being offered. [215] I conclude the mother does struggle with her mental health.

Her state of mind and feelings of being overwhelmed have continuedto impact her ability to meet her children’s needs. No doubt much of this is attributable to the issues of domestic violence between herand the father and their ongoing engagement with each other. The mother and father told Ms. Harris in December 2021 they were “kindof” in a relationship.

They have participated in arguing with each other as recently as April 2022, rather than walking away. [216] It is also possible that there are issues of domestic violence in her relationship with M.C. [217] However, the mother does not appear able or willing to seek the help she needs to address her mental health and the ongoingconcerns with domestic violence, that has occurred in the presence of the children, and which negatively impacted on them. [218] The mother has not attended counselling for her mental health on any sort of consistent basis, despite Ms.

Harris referring her toMental Health Services and following-up with her on the importance of attending to her mental health. [219] Ms. Harris has been asking the mother to go to Domestic Violence Outreach for assistance almost from the beginning of herinvolvement in the file in 2020. The mother appears to have only attended twice and has not followed up. [220] I find the mother is unable to meet the children’s needs and provide them with a secure environment. [221] The Court has no evidence that the father is able to meet the children’s needs or provide them a secure environment.

He has notbeen involved in parenting the children since at least January 2020 and he has not arranged any visits with them since they went intoprotective care in April 2021. He perpetrated domestic violence against the mother in the home with the children and continued toengage in harassing the mother after she left the home. (

b) the views and preferences of the child, where such views and preferences can be reasonably ascertained [222] I recognize the older children have expressed they miss their mother. A. told the foster mother for the longest time she was goinghome soon. O. often asked when they were going home when the children first went into care, although she has said more recently shewants to stay at the foster home forever. [223] I do not put much weight on the children’s views and preferences. E. is four years old. O. is eight. A. is now 10 years old but shehas autism and developmental delays. (

c) The effect upon the child of any disruption of the child’s sense of continuity [224] A Guardianship Order will mean a permanent termination of the parenting relationship between the mother and the children. Iacknowledge this will be difficult for the children, and to some degree, a disruption to their continuity. [225] However, when they went into care in April 2021, they were living in a situation of neglect and were in a home where there wasdomestic violence between their parents.

The father and the mother were not meeting the children’s needs nor providing the children witha secure and stable home. [226] Since April 2021 the mother has not been consistent in visiting the children, which has also disrupted their sense of continuity.The mother has not been able or willing to do what needed to be done to meet the case plan objectives for reunification. To return thechildren to the mother would be to send them back to the same or similar problems in their home environment that led them to go intocare, after they have had eighteen months of stability and appropriate care by the Minister.

In my view, that would be a greater disruptionto their sense of continuity than to grant guardianship. (

d) the love, affection and ties that exist between the child and each person to whom the child’s custody is entrusted, each person towhom access to the child is granted and, where appropriate, each sibling of the child and, where appropriate, each grandparent of thechild [227] The Court has no evidence about love, affection and ties between the father and the children. [228] Ms.

Harris deposed in her April 7, 2022 affidavit at paragraph 22 that the mother voices that she loves the children and wants tohave them home. [229] The evidence of the foster mother indicates the older children in particular have bonds with the mother and love her. [230] I also accept the children have love for the mother. They become upset when the mother misses visits with them. [231] However, as was stated by the Court of Appeal in The Minister of Social Development v. G.B., 2012 NBCA 62 , atparagraph 36:

Although love and affection are important criteria to consider when assessing the best interests of the child, they are not to supersede theother factors enumerated in the definition of best interests of the child. In this case, the mother’s inability to put her child first in her life,her lack of capacity to parent and the instability of her living accommodations undermine the mutual love and affection that exists. [232] Sadly, neither the mother nor the father have put the children first. The children’s need for stability and security and proper caretake precedence over preservation of family bonds.

e) the merits of any plan proposed by the Minister under which he would be caring for the child, in comparison with the merits of thechild returning to or remaining with her parents [233] The Minister’s plan is to place the children for adoption, together if possible, to provide them with a secure and stableenvironment. [234] A family group conference was held on August 23, 2022. A plan was made to explore having the children live with the mother’ssister A.M. and her husband. However, from Ms. Brown’s evidence, I conclude this plan was not feasible. [235] The mother has not presented any plan for the children.

In my view, the Minister’s plan is the only option for the children to attainpermanency and stability. (

g) the child’s cultural and religious heritage [236] This is not a relevant consideration in this matter. Finding [237] The mother argues the Court should make a further custody order as the maximum period of 24 months has not yet been reached. [238] In S.H. v. Minister of Social Development and C.H., 2021 NBCA 56 , one of the grounds of appeal was that the Courthad erred by not granting the mother a further custody order to permit her more time to make the changes deemed necessary in order forher to successfully parent the children.

The Court of Appeal stated at paragraph 15: If we were to accept the mother’s submission, we would be reweighing the evidence on which the judge based her decision that aguardianship order was then in the best interests of the children. We would be compelled to conclude the judge erred in her analysis. Wewould be adopting an

interpretation of the Act that would prohibit the Minister, in these cases, from proving its case for a guardianshiporder until the twenty-four-month period has elapsed when there is evidence of some progress in parenting skills. The mother was unableto provide us with jurisprudence to support this argument and, with respect, it is rejected. … [239] In this case, the Minister has worked with the mother and has provided services in an effort to attempt to reunify the children withher.

The Minister has used a safety plan and an application for a supervisory order to try to address the issues. [240] However, the mother has not demonstrated a commitment to doing what needs to be done to achieve reunification. She has notfollowed through on the agreed upon case plan. She has missed many meetings with the social worker. She has missed most of theappointments with the family support worker put in place by the Minister to assist her with parenting. She has not attended most of themedical and dental appointments for the children nor has she engaged with FACE services for E.

She has made minimal efforts to obtaincounselling for her mental health concerns and to help her end the cycle of domestic violence she has been part of with the father.Moreover, she has missed most of the visits with the children. [241] The mother’s counsel suggested the mother needs more time for the social worker to assist her with addressing her mental healthissues and other issues, such as not having enough minutes on her phone to call the offices of Supreme Human Services to confirm visits. [242] However, these are not recent issues for the mother.

It has been a year and half since the children went into care. The mother’sengagement with the social worker and the services provided has been minimal. I am unable to conclude the mother will be willing orable to overcome the issues that have prevented the children from being reunified with her if a further custody order is made. [243] I find it is the best interests of the children that the guardianship order be granted. Finding regarding post-guardianship access [244] The Court of Appeal stated in J.C. v.

Minister of Families and Children, 2020 NBCA 24: [12] Access to parents following the issuance of a guardianship order is considered in context; it is the right of the child, not that ofthe parent, and it is exceptional. Severing a child’s right to have access with his or her parent has significant consequences, and is notundertaken lightly. In this case, there was evidence that both children had frequent access to their father, they knew him, and he wasbonded with them.

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

If it is found that the preservation of access following the issuance of a guardianship order is in achild’s best interests, an order is appropriate. [17] In New Brunswick (Minister of Health and Community Services) v. L. (M.), (SCC), [1998] 2 S.C.R. 534,[1998] S.C.J. No. 52 (QL), Gonthier J. observes that when considering whether to preserve a right of access, a judge must not ignore the

fact that he or she has first found it necessary to remove the child permanently from the parent’s care (para. 38). He concludes: […] First, there is no inconsistency in principle between a permanent guardianship order and an access order. Second, access is theexception and not the rule. Third, the principle of preserving family ties cannot come into play in respect of granting access unless it is inthe best interests of the child to do so, having regard to all the other relevant factors. Fourth, an adoption, which is in the best interests ofthe child, must not be hampered by the existence of a right of access.

Fifth, access should not be granted if its exercise would havenegative effects on the physical or psychological health of the child. [para. 39] The Court has reiterated these principles in The Minister of Social Development v. G.B., F.H. and R.O., 2012 NBCA 62, 392 N.B.R. (2d)209; N.J.P. v. The Minister of Social Development, 2012 NBCA 3, 382 N.B.R. (2d) 245; C.A. v. Minister of Families and Children, 2018NBCA 67, [2018] N.B.J. No. 246 (QL). [245] I also refer to the Supreme Court of Canada’s statements at paragraphs 51 and 52 of the L.(M.) decision, cited by the Court ofAppeal: 51.

The decision as to whether or not to grant access is a delicate exercise which requires that the judge weigh the various components ofthe best interests of the child. It is up to the judge to determine which of the child’s interests and needs take priority (see New Brunswick(Minister of Health and Community Services) v. D.T.P., [1995] N.B.J. No. 576 (QL) (Q.B.), at para. 41). A child’s emotional stability isof prime importance. If the child is unduly disturbed by access, it is generally not granted (see New Brunswick (Minister of Health andCommunity Services) v.

K.E.B. (1991), (NB QB), 117 N.B.R. (2d) 229 (Q.B.), at p. 239; New Brunswick (Minister ofHealth and Community Services) v. P.P. (1990), (NB QB), 117 N.B.R. (2d) 222 (Q.B.)). 52. The evidence as to how access has been exercised is particularly relevant, since it relates both to the attitude of the parent and to theeffects of the visits on the child. Every parent must place his or her child’s interests ahead of the parent’s own. The parent’s inability todo so, and the harm suffered by the child, are factors that may result in access being prohibited.

This will be the case, for example,where the parent is violent, manipulative, unstable or unable to control his or her emotions. With regard to the effects of the visits on thechild, signs such as sadness, anxiety, regression, the reappearance or exacerbation of behavioural problems, mood and nightmares mayevidence harm. (See: New Brunswick (Minister of Health and Community Services) v. R.P.S., [1993] N.B.J. No. 96 (QL) (Q.B.); NewBrunswick (Minister of Health and Community Services) v. K.E.B., supra, at p. 235; Director of Child Welfare (Alta.) v. A.C. (1991), (AB CJ), 121 A.R. 301 (Prov.

Ct.).) In short, the parents must be worthy of being “visitors in their child’s life”, inthe words of Judge Cook-Stanhope in Alberta (Director of Child Welfare) v. L.L.O., [1996] A.J. No. 660 (QL) (Prov. Ct.), at para. 94. [246] There is no basis to order any ongoing access on the part of the children with the father. He has been absent from their lives forover a year, and there is no evidence ongoing contact on the part of the children with him would benefit the children. [247] I recognize the bonds between the mother and the children.

However, the evidence about how the mother has exercised her accesswith the children is a relevant factor in this matter. She has missed a significant portion of available visits. Her lack of attendance at visitshas negatively impacted the children’s emotional wellbeing.

They have been left upset and crying when she does not follow through. [248] The risk of this continuing if a right of access is preserved is high, especially in light of the fact the mother ceased attending anyvisits in August and September, 2022 and only saw the children once in October, 2022 before agreeing she wanted the visits to be put onhold. [249] In these circumstances, I do not find there is benefit to the children that warrants an order for ongoing access on the part of thechildren with the mother.

DISPOSITION [250] Pursuant to subsection 56(1) of the Family Services Act, the Minister is granted guardianship of A.L., born […], 2012, O.M., born[…], 2014 and E.M., born […], 2018, with no right of access preserved. DATED at the City of Saint John, New Brunswick this _____ day of November 2022. ___________________​​​​​​​​​_________​​​​ Justice M. Deborah Hackett Court of King’s Bench of New Brunswick Family Division