2013 NBCA 5, 2013 NBCA 5

COURT OF APPEAL OF NEW BRUNSWICK 8-12-CA J.R.C. (Respondent) APPELLANT - and - THE MINISTER OF SOCIAL DEVELOPMENT (Applicant) RESPONDENT J.R.C. (Intimé

e) APPELANTE - et - LA MINISTRE DU DÉVELOPPEMENT SOCIAL (Requérante) INTIMÉE J.R.C. v. Minister of Social Development, 2013 NBCA 5 J.R.C. c.

Ministre du Développement social, 2013 NBCA 5 CORAM: The Honourable Justice Bell The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge Bell L’honorable juge Quigg L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: December 13, 2011 Appel d’une décision de la Cour du Banc de la Reine : Le 13 décembre 2011 History of the Case: Historique de la cause : Decision under appeal: 2011 NBQB 355 Décision frappée d’appel : 2011 NBBR 355 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: September 20, 2012 Appel entendu : Le 20 septembre 2012 Judgment rendered January 10, 2013 Jugement rendu : Le 10 janvier 2013

Reasons for judgment by: The Honourable Justice Quigg Motifs de jugement : L’honorable juge Quigg Concurred in by: The Honourable Justice Bell The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Bell L’honorable juge Green Counsel at the hearing: For the appellant: Ben Reentovich For the respondent: Maurice C. Richard Avocats à l’audience : Pour l’appelante : Ben Reentovich Pour l’intimée : Maurice C. Richard THE COURT The appeal is dismissed without costs. LA COUR L’appel est rejeté sans dépens. The judgment of the Court was delivered by QUIGG J.A. I.

Introduction [ 1 ] The appellant mother, J.R.C., appeals a decision of a judge of the Court of Queen’s Bench, Family Division, dated December 14, 2011. The judge allowed an application by the Minister of Social Development, and in accordance with the relevant provisions of the Family Services Act , S.N.B. 1980, c. F-2.2, awarded the Minister guardianship of the appellant’s three daughters, C.R.S., (presently almost 16 years of age), D.E.A.G., (presently 11 years of age), and J.V.R.G. (presently 7 years of age).

The judge further determined that the children could benefit from continued access to their mother and K.P.G. (the biological father of D.E.A.G. and J.V.R.G.), and granted access subject to any supervisory or other conditions and restrictions the Minister may reasonably impose. However, the Minister is obligated to consider the wishes of the children when imposing conditions or restrictions. In the event the children are placed for adoption, the right of access terminates at the Minister’s discretion. The mother raises two grounds of appeal. I would reject both and dismiss the appeal. II.

Background [ 2 ] S.A.S is the biological father of C.R.S. and did not participate in the application. Although K.P.G. participated in the application, he supported the Minister’s position. The application originally included a fourth child, E.A.S. (17

years of age at the time of the application) but he went to live with his father, with the consent of all parties, after the application wasfiled. [3] The Minister has been involved with the mother and one or more of her children in excess of14 years. Up to the date of the application, 14 orders and three custody agreements with respect to the children have resulted fromvarious proceedings initiated by the Minister.

Up to the date the decision was released, C.R.S. had spent 45 months in the care of theMinister, D.E.A.G. 39 months, and J.V.R.G. 23 months. [4] The application was filed as a result of the Minister’s concerns respecting the mother’suntreated drug addiction and the negative influence of her male partners, whom she insisted on introducing into her children’s lives. III. Trial Decision [5] The application was heard over a five-day period. Sixteen witnesses testified on behalf of theMinister, one witness for the mother and one witness for K.P.G., the father of the two youngest children.

A written decision was filed onDecember 14, 2011. In the decision, the judge reviews the accounts of several social workers and support workers who had beeninvolved with the family, three police officers, two psychologists, and a toxicologist before undertaking a detailed analysis of the bestinterests of the children. The judge gives an overview of each party’s evidence and makes many findings regarding the mother’scredibility and her capacity to parent her daughters.

In the end, the judge determined it would not be in the children’s best interests to bein the custody of their mother, and granted the application, but allowed the children to retain access to the mother and K.P.G., subject toany supervisory or other conditions or restrictions reasonably imposed up until such time as the children may be placed for adoption, andthereafter, at the sole discretion of the Minister. IV.

Grounds of Appeal [6] The mother is appealing on the grounds the application judge erred by: • Misapprehending the evidence of the mother’s lifestyle choices in determining that the security and development of the childrenmay be in danger and basing his decision on the “risk of future harm” to the children, a premise which was not sufficiently established;and • Not taking additional steps to determine the children’s views and preferences when there were conflicting statements before him. V. Standard of Review [7] In S.B. v. New Brunswick (Minister of Family and Community Services), 2006 NBCA 41,[2006] N.B.J.

No. 167 (QL), Richard J.A. expressed the following views: It is common ground that the scope of appellate review in child protection matters, including guardianship cases, is very narrow.Considering the numerous decisions of the Supreme Court of Canada and of this Court on point, it would have been futile for any of theparties not to acknowledge the limited circumstances where appellate intervention may be justified: see, for example, New Brunswick(Minister of Health and Community Services) v. C.(G.C.), (SCC), [1988] 1 S.C.R. 1073 at para. 5, New Brunswick(Minister of Health and Community Services) v.

L.(M.), (SCC), [1998] 2 S.C.R. 534 at paras. 34-36, D.B. v. NewBrunswick (Minister of Family and Community Services) (2000), (NB CA), 228 N.B.R. (2d) 218 (C.A.), at paras. 6-7, Nouveau-Brunswick (Ministre des Services familiaux et communautaires) c. A.N. et Y.N. (2003), 264 N.B.R. (2d) 80 at para. 11,New Brunswick (Minister of Family and Community Services) v. M.D., 2006 NBCA 7 , [2006] N.B.J. No. 11 (C.A.) (QL) atparas. 5-7 and T.T. v. New Brunswick (Minister of Family and Community Services), [2006] N.B.J. No. 39 (C.A.) (QL) at para. 3.

Thesecases stand for the proposition, succinctly stated by Drapeau C.J.N.B. in A.N. at para. 11, that an appellate court will not intervene inchild protection cases "unless the trial judge's decision has no factual merit or was based on an error in principle, a failure to consider allrelevant factors or the consideration of an irrelevant factor."

[para. 3] [Emphasis added.] See also A.W. v. The Minister of Family and Community Services , 2007 NBCA 77 , 322 N.B.R. (2d) 162 ; Van de Perre v. Edwards , 2001 SCC 60 , [2001] 2 S.C.R. 1014 ; A.M.K.H. v. K.A.M. , 2003 NBCA 33 , 259 N.B.R. (2d) 291 ; N.J.P. v. New Brunswick ( Minister of Social Development ) 2012 NBCA 3 , 382 N.B.R. (2d) 245 ; New Brunswick (Minister of Social Development) v.

G.B., 2012 NBCA 62 , 392 N.B.R. (2d) 209 . [ 8 ] Therefore, as the above jurisprudence delineates, the scope of appellate review with respect to guardianship cases is quite narrow and, in the absence of material error, such as a serious misapprehension of the evidence or an error of law, deference must be shown. VI. Analysis A. Misapprehension of evidence respecting the mother’s lifestyle [ 9 ] The mother contends the judge misapprehended the evidence regarding her lifestyle when he concluded the security and development of the children were at risk.

Furthermore, she submits the judge based his decision upon a future risk of harm to the children, which risk had not been sufficiently established. I do not agree. This is not a case where the family had had minimal involvement with Child Protection Services. The Minister had been heavily involve d with this family for in excess of 13 years: Child Protection Services has been involved with J.R.C. and one or more of her children for more than 13 years. Fourteen orders and three custody agreements with respect to the children have resulted from various proceedings taken by the Minister since 1998.

As a result, C.R.S. has spent 45 months in the care of the Minister, D.E.A.G. 39 months, and J.V.R.G. 23 months. [Trial decision, para. 2 - Dec. 13, 2011] [ 10 ] The judge clearly did not “misapprehend” the evidence respecting the mother’s lifestyle choices and applied the proper test to the evidence before him before determining whether a guardianship order should be granted. Although I do not intend to reiterate all of the evidence which formed the record before the judge, I do believe it is essential to highlight the following.

(1) Choice of Male Partners [ 11 ] In my view, the judge clearly applied the proper principles and provided reasons demonstrating the “best interests” of the children had been thoroughly considered. The judge sets out in great detail the evidence led on behalf of the Minister, including her concerns regarding the mother’s drug use and her decision to allow her partner at the time, J.T., to reside with her family although he had an extensive criminal record and was a habitual drug user.

In 2008, the Minister had received credible information that the mother and J.T. were consuming illegal drugs and that J.T’s influence was negatively affecting the children. As the judge states: The concerns regarding J.R.C.’s drug use and the impact of J.T.’s lifestyle and behaviour on the children continued into 2009 and in fact became more alarming to the Department.

According to Christine LaForge a social worker who became involved with the family in September of 2009, one of the children had found drug paraphernalia consisting of two needles and spoons in the house and J.T was involving J.R.C.’s eldest child, E.A.S., in some of his criminal activities. According to Ms. LaForge, the children reported a lot of people coming and going in and out of the house. The relationship between J.T. and E.A.S. had deteriorated to the point where E.A.S. was threatening violence against J.T.

The children were reporting that J.R.C. and J.T. would get drunk together and the children were generally fearful. According to Ms. Laforge, when J.R.C. was confronted with these facts she became defensive of J.T. and referred to him as her “soul mate”. According to Ms. Laforge, the children wanted J.T. out of their household and were looking for help. The Department’s concerns at this time are outlined in paragraph 8 of the affidavit of Corrina Havens:

The Department’s current Child Protection On-Going Case was opened on October 1, 2009. A Permanency Planning Conference (“PPC”) was held on October 1, 2009 and the following concerns were mentioned: a) [J.R.C.] had an untreated addiction to drugs; b) [J.R.C.] was neglecting her children’s needs because of her relationship with [J.T.]; c) [J.R.C.] was going out at night and leaving her 15 year old son, [E.A.S.], to care for the other children; d) [J.T.] had been influencing the children to steal, shoplift, and use drugs;

e) There was evidence of domestic violence between [J.T.] and [J.R.C.], and between [J.T.] and [E.A.S.]; f) [J.R.C.] refused to listen to the concerns that her children had about her relationship with [J.T.] and how it was negatively impacting their lives; g) [J.R.C.] told her children that she was not going to give up on [J.T.] for her children; h) [C.A.M.], [J.R.C’s] mother, was emphatic in saying that she had enough of her grandchildren telling her that they were scared, and that she had heard stories from the children that they were being exposed to violence, drug use, and theft, and 2 of the children told her that [J.T.] had sex with a minor; i) [J.T.] did not deny any of the information presented by [C.A.M.] at the PPC; and j) [C.A.M.] stated that her daughter was an addict who placed her own lifestyle needs before the needs of the children. [paras. 6-7] [ 12 ] As a result of this, the children were taken into protective custody and placed into the care of their maternal grandmother, C.A.M., in October 2009.

By the fall of 2010, J.T. was incarcerated and the mother had begun to reside with another man, D.C. The children were upset about this new relationship and a family group conference was held, resulting in a family group plan which the mother agreed to follow. The plan specifically addressed the children’s concerns regarding the mother’s partners and prohibited males from being in the mother’s home while the children participated in supervised visits.

By November 2010, the mother had entered into another relationship, with C.M., an individual who had outstanding warrants issued in Ontario as a result of domestic violence. [ 13 ] It was then the Minister commenced her application for guardianship.

Subsequent to the filing of the application in December 2010, the mother continued to insist that C.M. be part of her supervised visits with the children despite her knowledge of his record for domestic violence. [ 14 ] By June 2011, the mother was involved in yet another relationship, this one with G.A., an individual with an extensive criminal record who is an alcoholic, and prone to domestic violence. Again, despite being aware of G.A.’s background, the mother insisted she be permitted to introduce G.A. to her children because, as she stated, “he will be there when the children are returned to me”.

As well, the mother pressured the children to consent to having G.A. participate in visits. The Minister continued to be concerned about the mother’s inability to follow the family group plan. The mother circumvented the agreement not to have males in her home while the children visited, by having her male partners visit with her and the children in a tent placed next to her residence. The judge explains:

[…] For example Ms. Harris testified that J.R.C. pitched a tent in her back yard for her and the children to sleep in with G.A. thereby avoiding the “no men in her home” rule. According to Meagan Smith, D.E.A.G. told her that J.R.C. invited a group of friends over for a night of drinking around a bonfire. D.E.A.G. reported that the guests were drinking around her and that this upset her to the point where she pretended to be asleep. Other similar incidents occurred including taking the children out of the home to parties where her male companions attended. These incidents were upsetting to the children.

This was brought to J.R.C.’s attention and she insisted she was not in breach of the letter of the plan because she did not have the males in her “home”. J.R.C. continued to chafe under the supervision of the Department and referred to the family group plan as “bullshit”. Finally, J.R.C. indicated that she was no longer willing to have the Department involved in her life and wanted the matter to be determined by a judge. J.R.C. stated she no longer wanted to live by others’ rules. Accordingly, the Minister decided to bring this application for guardianship.

The guardianship application was filed on December 17, 2010. [para. 10] [ 15 ] The mother testified about her lifestyle and, although she admitted to being involved with men who had drug addictions and criminal records, often including offences of domestic violence, she continued to defend her choices. [ 16 ] The judge reviews this as well: While J.RC.’s history of drug abuse is concerning, the primary concern for the safety and development of the children is J.R.C.’s lifestyle of which drug use is only one component.

The most troubling aspect of J.R.C.’s lifestyle is her attraction to male companions who have drug or alcohol addictions and who either have criminal records or a history of domestic violence. The evidence of the witnesses called on behalf of the Minister is that the presence of these men has had a negative impact on the children. The children repeatedly told their mother that they did not want these men in their lives. The Family Group Plan contained provisions that prohibited J.R.C. from having males in her home while the children were present.

Despite being repeatedly warned by the Department J.R.C consistently tried to undermine the spirit of the Plan by insinuating her male companions into the lives of her children in other ways. [para. 33][Emphasis added.]

(2) Drug Use [ 17 ] The record reveals there was ample evidence respecting the mother’s history of drug use. A family support worker testified she had conversations with the mother concerning the mother’s drug use as well as conversations with the children respecting their concerns about the issue. Although the mother denied her addiction for a significant length of time, she later admitted she was an addict.

A toxicologist testified that hair samples which had been submitted by the mother for testing indicated a consistent pattern of repeated cocaine use during a six-month period between November 2009, and June 2010. The toxicologist stated the mother tested positive for cannabis from August to November 2010. Although he agreed that a positive reading in a hair sample could be caused by passive exposure to cannabis (that is, being in the company of someone ingesting cannabis), passive exposure would have to be frequent and part of a person’s lifestyle.

In the end, the reading taken from the mother’s sample indicated frequent use of cannabis. The toxicologist also testified respecting a hair sample collected in 2011, which was negative for cocaine and cannabis but was positive for codeine. He determined the codeine would have been ingested during the period November 2010 to the end of March 2011.

He stated that codeine is found in some prescription medications such as Tylenol 3. [ 18 ] The mother admitted that, due to her addiction, she had been dishonest to the Minister’s staff about her drug use and that she had manipulated her urine tests for more than a year. She further testified she had stopped using illegal drugs on July 1, 2010. She denied smoking marihuana and maintained it was never in her home. She blamed the positive test results on the passive absorption of cannabis smoke while in the company of individuals who smoked marihuana.

The judge found the following: While it is clear to me that J.R.C. continued to use illegal drugs (cannabis) after July 1, 2010 the cannabis use itself is not the central concern. J.R.C. testified that she stopped using cocaine on July 1, 2010 and completed the three-week rehabilitation program offered b y Ridgewood Addiction Services. In cross-examination J.R.C. admitted that Ridgewood recommended that she stay away from all types of intoxicants. Yet by her own admission she continues to drink alcohol and, if not actively smoking marijuana, she is in regular and close contact with people who use marijuana.

These lifestyle choices seem inconsistent with someone who is serious about conquering a cocaine addiction. In direct examination J.R.C. was asked by her counsel: Q. “How can we trust you?”

A. “Nobody can. I just know it won’t happen again.” I do not share J.R.C.’s optimism. The situation does not instill confidence in J.R.C.’s assertions that she will never do cocaine again. [para. 32]

(3) Credibility of the mother [ 19 ] The judge is clear when he discusses how he perceives the mother’s evidence: I do not find J.R.C. to be a reliable witness. She admitted that she repeatedly lied about her drug use and deliberately manipulated drug tests to avoid detection . Her version of the events involving the police described earlier is in stark contrast to the evidence of the police officers who have no interest in the outcome of this case. In her oral testimony, J.R.C. was often evasive or equivocal in her responses to questions.

Often her response to uncomfortable questions put to her on cross-examination was to attempt to deflect the question by dramatic and seemingly emotional outbursts. J.R.C. accepts the evidence of the Department witnesses except where it differs on matters which she perceives as central to her case. She blames her lying and all of the problems and concerns regarding her parenting on her drug use yet contends that she used drugs only on the weekends when she did not have the children in her care. In short, J.R.C.’s evidence is not credible or reliable.

Accordingly, where J.R.C.’s evidence differs from that of the evidence given by the Department staff, I accept the evidence of the Department staff witnesses. J.R.C.’s position is that all of the Minister’s concerns with respect to her parenting stem from her addiction to cocaine and her involvement with J.T., a criminal and suspected child molester. She says that she has defeated her addiction and that her relationship with J.T. has ended. In her own words J.R.C. says: “I am here because of drugs and the drugs are gone”. [paras. 29-30] [Emphasis added.]

(4) Police Intervention [ 20 ] A review of the record reveals the mother had at least three encounters with the police just a short time prior to the trial. These incidents were referred to in the decision ; the following is an example of one: Constable Seth Cahill testified with respect to an incident which occurred on the evening of August 19-20, 2011. At approximately 1:00 a.m. Constable Cahill was called to J.R.’s Nightclub, where he found G.A. unconscious at the foot of the patio stairs.

He testified that J.R.C. was intoxicated and had earlier been involved in an altercation with A.L., a female acquaintance of J.R.C’s. Constable Cahill said that while he was trying to assist G.A., J.R.C. persisted in interfering with him. He described J.R.C. as drunk and belligerent. Constable Cahill warned J.R.C. to stop obstructing his efforts but she continued. In the end, the police had to wrestle J.R.C. to the ground and handcuff her. She was detained pursuant to the Intoxicated Persons Detention Act and charges are pending with respect to obstruction.

Jane Ronan described how, a few days later, J.R.C. discussed the incident in front of the children including that she had spent the night in jail. According to Ms. Ronan, J.R.C. described her fight with A.L. and said “This isn’t over with [A.L.]” and called A.L. a “bitch”, all in front of the children. [para. 17] [ 21 ] The incident where the mother was arrested for intoxication and obstruction occurred three weeks prior to the hearing.

The judge found “the rejection of authority coupled with her lack of appreciation of the impact of her lifestyle on her children lead me to the conclusion that there is little prospect for improvement in J.R.C.’s parenting.”

(5) Risk of Future Harm [ 22 ] The mother submits the judge placed too much emphasis on the risk of future harm to the

children when he granted the guardianship order, and, furthermore, the risk of future harm was not sufficiently established to make such an order. She relies on two decisions, one from British Columbia and one from Nova Scotia, relating to risk of future harm to support her position that this Court should adopt a test to be utilized in child protection cases where risk of future harm is the paramount concern. The legislation of both these jurisdictions contains provisions respecting “threat of harm” or “risk of harm” in being returned to the parent in question.

New Brunswick’s Family Services Act does not contain such provision. I would therefore conclude that cases from those jurisdictions, on this point are not relevant to my analysis. In this situation there is more than enough evidence to support the conclusion that past risk and its corollary effects existed and continued to be of concern at the time of the trial. As argued by the Minister, even if the judge had only been concerned about the possibility of future risk, which he clearly was not, the appropriate test, the best interests of the children, was applied.

In New Brunswick, the Family Services Act, s. 53(2) states the court is instructed to give paramount consideration to “the best interests of the child”: 53

(2) When disposing of an application under this Part the court shall at all times place above all other considerations the best interests of the child. 53

(2) Lorsqu’elle statue sur une demande en application de la présente partie, la cour doit à tout moment placer l’intérêt supérieur de l’enfant au-dessus de toute autre considération. This is exactly what the judge did in this case. [ 23 ] The Family Services Act contains a clear definition of “best interests of the child”:

1 In this 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 to whom access to the child is granted and, where appropriate, each sibling of the child and, where appropriate, each grandparent of the child; (

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

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

g) the child’s cultural and religious heritage; […] 1 Dans la présente loi […] « intérêt supérieur de l’enfant » désigne l’intérêt supérieur de l’enfant dans les circonstances, compte tenu

a) de l’état de santé mentale, affective et physique de l’enfant et du besoin qu’il a de soins ou de traitements convenables, ou des deux;

b) des vues et préférences de l’enfant lorsqu’il est raisonnablement possible de les connaître;

c) de l’effet sur l’enfant de toute atteinte à la stabilité dont un enfant éprouve le besoin;

d) de l’amour, de l’affection et des liens qui existent entre l’enfant et chaque personne à la garde de qui il a été confié, chaque personne qui a obtenu le droit de lui rendre visite et, le cas échéant, chaque frère ou soeur de l’enfant et, le cas échéant, chaque grand-parent de l’enfant;

e) des avantages de tout projet de prise en charge de l’enfant par le Ministre comparés à l’avantage pour l’enfant de retourner ou de rester auprès de ses parents;

f) du besoin pour l’enfant d’être en sécurité, dans un milieu qui lui permette de réaliser pleinement son potentiel, selon ses aptitudes personnelles et, ce faisant, de devenir membre utile et productif de la société; et

g) du patrimoine culturel et religieux de l’enfant; […] [ 24 ] In paragraphs 43-51 of his decision, the judge thoroughly addresses each of the criteria contained in s. 1 of the Family Services Act and applies them to the facts of the present case. In the end he concludes the following: Having regard to all of the factors enumerated above, I conclude that it is in the best interests of the children that the Minister’s application be granted. Unlike many such applications that come before the Court, this is not a case where the parent is incapable of parenting. Indeed, the evidence of Dr.

King is that J.R.C. has the capacity to parent. My observations of J.R.C. while testifying lead me to believe that she is reasonably intelligent and articulate. While J.R.C. is capable of parenting the children, she chooses not to. J.R.C., as

an adult, has the right to choose whatever lifestyle she desires. However, she does not have the right to impose her lifestyle choices on her children where that lifestyle endangers the security and development of the children. That is the case here. Accordingly, the guardianship of the children will be transferred to the Minister. [para. 52] I find no error and would reject this ground of appeal. B.

Judge committed an error by not taking additional steps to determine the children’s views and preferences when there were conflicting statements [ 25 ] The mother submits the judge erred in principle by largely relying on statements “attributed to the children” when he made a “clear finding of fact that the children repeatedly told their mother they did not want these men in their lives”. The mother says that finding of fact was based on “numerous contradictory statements attributed to the children”.

She agrees that the judge took the additional step of ordering a Voice of the Child Report but submits the author of the report relied heavily upon statements made by the children to representatives of the Minister, and that this is not consistent with the role of an independent assessor.

The mother is also of the opinion the views and preferences of the children should be discounted, as they are not consistent with “what she has been told that they told others”. [ 26 ] The Minister submits there is no merit to this ground of appeal as the judge addressed the conflicting statements of the children early in the decision: Hélène Hamel, a licensed psychologist, was appointed a responsible spokesperson to represent the views of the children. In her report, Ms. Hamel stated that all three children expressed a desire to live with their mother.

However, they were also clear that their grandmother`s home is a good home for them. Ms. Hamel urged caution in accepting the children`s stated desire at face value. Under the heading “Conclusions and Recommendations” contained in her report, Ms. Hamel states: […] The other element that concerns me is that I believe it is possible that the girls want to go back with their mother because they are worried that they may not have a relationship with her if they say that they would prefer to stay with their grandmother. The mother made it clear in the past that she would choose a boyfriend over them.

She also made a clear statement during my observation that the (sic) what comes to mind when she thinks of the March Break is not how good she felt about being a family again with her daughters, but how much money it cost her and how much bread she needed that week. Those kinds of comments and how the mother makes them do not foster a sense of security in the children.

Overall, my understanding of what the children are saying is that they need a decision to be made, that they need someone who can put them first, that they have nothing negative to say about their life at their grandmother’s, and that they still want to have a relationship with their mother.

In keeping in mind that [J.R.C.] indicated herself last summer that her mother is more able than her to provide the stability her children needs, I strongly recommend that the children remain under the care of their grandmother, with visits with their father and visits with their mother if she is mature enough to remain available to them. [para. 23] [ 27 ] The judge considered the contents of The Voice of the Child Report and correctly applied s. 1 (

b) of the Family Services Act (the criteria concerning the views and preferences of the child) to the evidence when he stated: The evidence is that the children are conflicted with respect to where they wish to live. Recently, the children have expressed a desire to live with J.R.C. However, Ms. Hamel expressed caution accepting the children’s stated desire at face value. I believe her skepticism is well founded. At the opening of the trial J.R.C. attempted to introduce letters which she had the children write expressing their wishes. I refused to admit the letters into evidence.

Presumably, they supported J.R.C.’s position. The evidence is that in the two weeks prior to the trial J.R.C. first told the children about her “dream garage” wherein she painted a rosy picture of the future wherein each of the children had a role to play in the business. In the same time period, she also told the children that if she was not successful in the guardianship application, that she would move away from Woodstock. In my view, these conversations were a cynical attempt by J.R.C. to manipulate her children to her own ends using a crude “carrot and stick” approach.

The carrot was the “dream garage” and the stick was a veiled threat to terminate contact with the children. As a result, I place little weight on the children’s expressed desire to live with their mother and place much greater weight on their expressions of comfort and safety in the care of their grandmother.

[para. 45][Emphasis added.] [ 28 ] In my view, having considered the views and preferences of the children as he did, the judge was under no obligation to take any further action. One must keep in mind that s. 1 (

b) of the Family Services Act is only one of the criteria to be taken into consideration when determining the “best interests of the child”. All of the criteria must be considered as a whole. In my view the judge correctly considered the views and preferences of the children, applied the correct legal principles and made no error in law. VII. Motion for fresh evidence [ 29 ] At the hearing, the Minister sought leave to adduce fresh evidence, consisting of an affidavit of a Family Support Worker. Counsel for the mother consented to admit the fresh evidence.

The panel advised we would accept the evidence, and determine later how much weight, if any, we would attach to it. Given the conclusion reached with respect to the grounds of appeal, there is no need to consider this fresh evidence. VIII. Disposition [ 30 ] For these reasons, I am not persuaded the judge made any reversible error. I would dismiss the appeal without costs. __________________________________ KATHLEEN A. QUIGG, J.A. WE CONCUR: ______________________________ B. RICHARD BELL, J.A.

______________________________ BRADLEY V. GREEN, J.A.