IN THE MATTER of a hearing under THE CHILD v. FAMILY SERVICES ACT, 2011 SKPC 127

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 127 Date: July 28, 2011 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: IN THE MATTER of a hearing under THE CHILD AND FAMILY SERVICES ACT AND IN THE MATTER OF T.J.E.S., born April 19, 2010 Appearing: Codi Chudyk For the Ministry of Social Services Mr. D. Ottenbreit For the parents, M.S. and P.K. The parents and children are identified by initials in order to protect their identities. JUDGMENT M. T. GORDON , J INTRODUCTION: [ 1 ] The Ministry brings an application for a permanent order for the child, T.J.E.S., born April 19, 2010, pursuant to s. 37 of The

Child and Family Services Act . ISSUE: [ 2 ] The biological parents, M.S. and P.K., oppose the application and submit that the child should be returned to the mother, M.S. LEGISLATIVE FRAMEWORK: [ 3 ] The Child and Family Services Act governs these proceedings. The burden is on the Ministry to establish its case on the balance of probabilities being the civil burden of proof. On November 2, 2010, Anna and Wesley Schultz were granted status as persons of sufficient interest pursuant to s. 23 of the Act. They were present throughout the course of this trial but declined the opportunity to take any active

part in the proceedings. LEGISLATION: [ 4 ] The Ministry seeks a permanent order pursuant to s. 11 of the Act declaring this child is in need of protection. The relevant portion of s. 11 reads as follows: 11. A child is in need of protection where: (

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

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

v) the child’s development is likely to be seriously impaired by failure to remedy a mental, emotional or developmental condition; or (vi) the child has been exposed to domestic violence or severe domestic disharmony that is likely to result in physical or emotional harm to the child; (

b) there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur; [ 5 ] Sections 14 and 17 of the Act speak to the apprehension process and read as follows: 14(1) Where, on investigation, an officer concludes that a child is in need of protection, the officer shall: (

a) notify the parent in writing of the officer’s conclusion; and (

b) offer family services to the parent. 17(1) Where an officer or peace officer concludes, on reasonable and probable grounds, that a child is in need of protection and at risk of incurring serious harm, the officer or peace officer shall: (

a) take all reasonable steps that he or she considers necessary to provide for the safety or welfare of the child, including, in the case of an officer, the offer of family services where practicable; or (

b) where no other arrangements are practicable, apprehend the child and remove the child to a place of safety.

(2) Where a peace officer apprehends a child pursuant to subsection (1), the peace officer shall immediately report the matter to an officer who shall be responsible for the care of the child.

(3) Where at any time an officer no longer believes that a child apprehended pursuant to subsection (1) would be at risk of incurring serious harm if returned, the officer shall return the child to a person who has a right to custody of the child.

(4) If a child apprehended pursuant to subsection (1) is not returned to a person who has a right to custody of the child within 48 hours of being apprehended, an officer shall: (

a) if a family review panel has been appointed in the region or locality where the apprehension occurred, apply for a review pursuant to

section 20 of the reasons for the apprehension; and (

b) within seven days, not including the day on which the child was apprehended, make an application to the court for a protection hearing.

(5) If a child apprehended pursuant to subsection (1) is returned to a person who has a right to custody of the child prior to the review pursuant to

section 20, an officer shall withdraw the application for review.

(6) Applications pursuant to subsection (4) may be made by telephone in accordance with the regulations.

(7) The director may, prior to a protection hearing, grant access to a child apprehended pursuant to subsection (1) to his or her parent or any other person on any terms and conditions that, in the opinion of the director, would be in the best interests of the child. [ 6 ]

Section 36 speaks to the protection hearing, as follows: 36(1) On a protection hearing, the court shall determine whether the child is in need of protection.

(2) Where the court determines that a child is in need of protection, the officer shall present to the court the officer’s recommendations respecting an order to be made pursuant to

section 37 .

(3) If the court determines that a child is not in need of protection, it shall dismiss the application and order the return of the child to a person who has a right to custody of the child.

(4) An order pursuant to subsection (3) does not constitute an order for custody of the child. [ 7 ] In the event I find this child is in need of protection, I must consider the appropriate order under s. 37 of the Act which provides as follows: 37

(1) Subject to subsection (2), if the court determines that a child is in need of protection, the court shall make an order that the child: (

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

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

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

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

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

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

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

(4) In making an order pursuant to subsection (1), (2) or (3), the court: (

a) shall consider the best interests of the child; (

b) may consider the recommendations of the officer mentioned in subsection 36(2); and (

c) may consider the recommendations of a chief, a chief’s designate or an agency that appears in court pursuant to subsection (11).

(5) In making an order pursuant to subsection (1) or (3), the court may: (

a) impose any terms and conditions that the court considers appropriate; and (

b) include in the order a provision respecting access to the child.

(6) If the court, in making an order pursuant to clause (1)(

a) or (b), orders supervision of the child by the minister as a term or conditionof the order, the period of supervision shall not exceed one year.

(7) In making an order pursuant to clause (1)(b), the court may direct that the order shall terminate after the expiry of a period, notexceeding one year, specified in the order.

(8) Any order made pursuant to clause (1)(

a) or (

b) or

section 16 that is inconsistent with an existing custody order of a superior courtshall be considered an interim order that is subject to a further order of a superior court.

(9) The court shall provide to each party to the proceedings a written

summary of its reasons for determining that the child is in need ofprotection. [8] The following provisions of the Act are also relevant in these proceedings as follows: 4. Where a person or court is required by any provision of this Act other than subsection 49(2) to determine the best interests of a child,the person or court shall take into account: (

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

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

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

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

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

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

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

h) the effect on the child of a delay in making a decision. 5. Subject to this Act and the regulations, the minister may: (

a) establish, operate and maintain family services; (

b) provide family services to or for the benefit of a parent or a child where the minister considers them essential to enable the parent tocare for the child; [9] Clearly, the first issue, and only issue depending on my decision is whether the child T.J.E.S. was in need of protection andtherefore lawfully apprehended within the meaning of The Child and Family Services Act on April 20, 2010. A plain reading of theabove sections indicates a lawful apprehension is a condition precedent to legal proceedings. Without the lawful apprehension there canbe no orders under

section 37. It follows that the Ministry has no legal authority to force a parent to do anything if there is no basis forapprehension. It also follows that evidence obtained after the apprehension cannot validate an invalid apprehension. [10] Mr. Justice McIntyre clearly sets out this procedure in Saskatchewan in the Ministry of Social Services v. S. (E.K.), (SK KB), [1996] 146 Sask. R. 46 at paragraph 28: Step 1: determine if the children are in need of protection, and if so Step 2: determine the appropriate order under s. 37 in accordance with the principles set out in E.K.S. Approach this task as follows: (a) (

i) consider the best interests of the child within the meaning of s. 4 of the Act.

(ii) may consider the recommendations of the officer. Note: both of these considerations must take place in the context of the objective of the Act as enumerated in s. 3. (

b) determine whether any of the options in s. 37(1) are appropriate. The choices are: (

i) return the children to the parents, with conditions attached if need be, including supervision by the Minister for up to one year; (ii) place the child in the custody of a person having sufficient interest; or (iii) commit the child to the custody of the Minister for up to six months. (

c) if none of the options in s. 37(1) is appropriate, then order, pursuant to s. 37(2), the children to be permanently committed to theMinister; or (

d) pursuant to s. 37(3), if it is unlikely an adoption plan would be made for the child if permanently committed to the Minister, thenorder the child placed in the custody of the Minister until the child is 18 years old. [11] Mr. Justice McIntyre set out the following principles: [45] 1. The welfare of the child is the paramount (but not the sole) consideration. The wishes of the parent must be given independentsubordinate weight. The weight will depend on the circumstances in each case. (R. v. Saskatchewan (Minister of Social Services), (SK KB), [1974] 2 W.W.R. 388, at p. 393 (Sask. Q.B.)) [46] 2. Section 37(4)(

a) does not declare that only the best interests of the child shall be considered. The implication is that the courtmay be mindful of other matters. As well, the list in s. 4 is not exhaustive in determining the best interests of the child. (Saskatchewan(Minister of Social Services) v. R.G. (1990), (SK KB), 88 Sask. R. 262 (U.F.C.)) [47] 3. Any determination made must be in the context of the objective of the Act, set out in s. 3. (M.A.C. v. Saskatchewan (Minister ofSocial Services) (1993), (SK KB), 110 Sask. R. 81; 46 R.F.L. (3d) 174 (Q.B.)) [48] 4.

The court may consider the recommendation of the officer (representative of the Department) but is not bound thereby. [49] 5. The court, having determined the child to be in need of protection, has determined that the level of parenting care is below theminimum tolerated by society. Therefore, in determining whether an order under s. 37(1) is appropriate, including conditions whichcould be attached, the court must be satisfied either: (

a) The parent or parents have altered his or her ways such that the circumstances which gave rise to the determination that the childwas in need of protection no longer exist, or (

b) The court is satisfied that there is a realistic plan or a reasonable basis upon which to conclude that the necessary changes canoccur within a reasonable time whereby the children can be safely returned to the care of their parent or parents. (Saskatchewan (Ministerof Social Services) v. A.J. and C.J. (1987), (SK CA), 58 Sask. R. 246 (C.A.); Saskatchewan (Minister of SocialServices) v. M.L. and M.L.M. (1988), (SK KB), 71 Sask. R. 110 (U.F.C.); M.A.C. v. Saskatchewan (Minister of SocialServices), supra; Saskatchewan (Minister of Social Services) v.

R.G., supra.) [50] The court must look at various factors including (without meaning to be exhaustive of the possibilities) any changes in circumstanceor conduct of the parent that has occurred or is proposed, any plan of corrective action that is being advanced, the nature of any resourcessuggested and the time frames which may be involved.

The options in s. 37(1) are premised upon a reasonable prospect of change,within a reasonable length of time and a reasonable use of resources if needed. [51] In making an assessment as to whether an order under s. 37(1) is appropriate the court must do so on the basis of the evidencebefore it. As noted by the Court of Appeal in Saskatchewan (Minister of Social Services) v. A.J. and C.J., supra, p. at 251: However, the following is self-evident.

Where, as here, children have been placed into the temporary custody of the Minister, and theparents wish to have the children returned to them, they must make efforts to improve or remove the conditions or circumstances in thehome which have resulted in the children being taken from the parents... This analysis is quoted with approval by the Saskatcheawn Court of Appeal in S.F. (Re), 2009 SKCA 121. EVIDENCE AT TRIAL:

[ 12 ] The Ministry presented ten witnesses at trial, including one expert witness. By consent a report of Francis Stewart, who was also qualified as an expert, was admitted as evidence. Following is a list of the witnesses and

summary of their evidence: 1. Nicole Ansell - Ms. Ansell is a child protection worker in Moose Jaw. Her first involvement with M.S. was five to six years ago when she was involved with the apprehension of a child not the subject of these proceedings. The Ministry received information that the subject child, T.J.E.S., was expected and maternity alerts were put out to the local hospitals. Ms. Ansell stated this decision was based on the parenting capacity assessments of Francis Stewart, Dr.

Tim Greenough, the previous family history and decision of Judge Matsalla from Swift Current Provincial Court relating to other children. Ms. Ansell apprehended April 20, 2010 when T.J.E.S. was one day old. Ms. Ansell observed T.J.E.S. with the mother in the hospital and at supervised visits. M.S. handled the child well, but breast feeding was a struggle. M.S. kept regular contact with Ms. Ansell by attending the office and telephoning. M.S. pumped and froze breast milk to feed the baby on visitation days.

However, the baby experienced digestive problems and after obtaining medical advice no further breast milk was given after mid-June. M.S. was willing to participate in parenting and anger management. However, Ms. Ansell noted that the Ministry had “been down that road” for six years with M.S. and felt her ability was limited. The Ministry was not prepared to put this baby at risk, in particular because of the parents’ past history of domestic abuse and violence. On cross-examination Ms.

Ansell agreed that children would have been returned to the mother if they had dealt with their problems of drug and/or domestic abuse. She stated on April 23, 2010 there was a permanency planning committee decision to apply for a permanent order. Again, Ms.

Ansell repeated that the basis for the Ministry’s decision to apprehend at birth and request a permanent order was as follows: No stable home environment, only one year in a residence, history shows she goes through too many residences, transience, domestic abuse, neglect, parents’ relationship unstable, dirty conditions of the home and the fact the other children were apprehended. All these factors put this baby at risk. The Ministry was of the opinion that the risks were too high and that even if support were put in place, the Ministry would not work with the parents. 2. Stacy Dennison - Ms.

Dennison is a family support worker with the Moose Jaw Family Service Bureau. They received a contract January 5, 2011, from Social Services to work with M.S. Ms. Dennison transported the baby to the home of M.S. and observed the visits. She also provided information to M.S. on many topics, including child development, problem solving skills, healthy parenting, violence and effects on children, healthy boundaries, natural and logical consequences and household hazards.

She recorded the following observations by the mother: inappropriate behaviour by interrupting, changing topics, making jokes, not taking the matters seriously and inappropriate comments. Examples included M.S. talking to her instead of fully concentrating on the baby, M.S. stating she stole panties and then tried to sell them and not using a change pad when changing the baby’s diaper. Ms. Dennison stated she had an appointment with M.S. twice weekly from January to the end of May, and that M.S. called if she had to cancel the appointment. On cross-examination, Ms.

Dennison noted the father, P.K., was present on some visits. She noted P.K. exhibited inappropriate behaviour on occasion, such as passing gas, picking his nose, scratching his genitals and making jokes about the resources. Ms. Dennison said she was instructed to record all observations. She noted that on one visit M.S.’s clothes were too tight and her bra strap was sliding down her arm. M.S. did advise she quit smoking. Ms. Dennison admitted that the baby, T.J.E.S., appeared to be content and to have bonded with his mother, M.S.

The father, P.K., appeared to be nervous holding the baby and had to be reminded to support the baby’s head.

Ms. Dennison noted the home was very clean. When P.K. moved out in March 2011, the home was sometimes messy and cluttered. 3. Christine Racic - Ms. Racic is the Family Support Program Coordinator with the Moose Jaw Family Service Bureau. She received the request for services from Social Services, and assigned a worker. In this case, she was advised by Social Services that the worker was to supervise visitations. Someone patient, who would testify in Court was specified. As a result, Stacy Dennison was chosen based on her studies in criminology, and her ability to communicate clearly with clients.

At the conclusion of the contract, Ms. Racic reviews the worker’s report and signs off. She confirmed that the worker is to document all observations. The only time a worker is to make a comment is if the child is at risk of harm. Every month the worker prepares a report which includes the following: child factors such as appearance; caretaker factors such as physical, mental and emotional engagement with the child and any changes. On February 3, 2011, there was a visit at the Family Service Bureau.

The foster mother brought the child, T.J.E.S., and noted that the baby had fallen and cut his lip and also had a cold. At this visit Ms. Racic observed T.J.E.S. went to his mother who fed him, read and played with him. T.J.E.S. was laughing. It was noted the mother did not wash her hands prior to changing the baby’s diaper and brought food and snacks, some of which were inappropriate for the baby. The mother tried to engage the worker in conversation. It was noted that P.K. passed gas and had an erection during this visit. On cross-examination Ms.

Racic reiterated that the worker was not to interpret events or act on any observations. If there is a change in the home environment that could be a danger to the child, she is to inform the care worker. She acknowledged that the observations were used as a tool to predict what might happen. She stated it is important to record the parents’ behaviours as they act as role models. 4. Lois Thompson : Ms. Thompson has been the Outreach Coordinator for Moose Jaw Transition House for 17 years and worked at Moose Jaw Transition House for 31 years.

For the past 16 years she has conducted an eight week course called “Woman’s Anger Expression Group.” The course is based on conflict or choice theory and assists women in setting goals and boundaries. The sessions are confidential and no notes are taken. M.S. came to the course the third week in January 2011. Ms. Thompson recalls M.S. being in the class and that she wanted her children returned. She observed M.S. attended regularly. M.S. spoke out and participated in group discussion. However, she also observed that M.S. was texting on occasion, and speaking out of turn.

M.S. also responded that one of her goals was to “buy panties”. It was noted that she bought coffee and donuts for the group the last day. 5. Lisa Berry has worked at Moose Jaw Transition House for 10 years. She co-facilitated the group with Ms. Thompson. M.S. was in the group from January to March 2011. About the third session M.S. was asked to state her goal and she responded “make an underwear flag”. When asked again she said she wanted to get her “kids back”. Ms. Berry had to remind M.S. and another participant to be quiet when someone was speaking.

On cross-examination she stated that M.S.’s goal about the “underwear flag” was very weird. She did note it was not just M.S. who was texting. M.S. attended all seven sessions. Her participation varied from week to week. The purpose of the session is to provide the women with tools and options to use in their daily lives when dealing with anger. 6. Gwen Knoll is a registered Social Worker and the Director of Moose Jaw Family Service Bureau. About seventy percent of her time is devoted to counselling. Ms. Knoll saw M.S. and P.K. January 7, 2011. Four appointments were made by M.S. but only two were kept.

At the first session Ms. Knoll explained the process and had the clients identify their issues. The second session M.S. stated they had problems with independence issues and boundary issues. M.S. was quite engaged. P.K. only responded when directly asked a question. This is not unusual. M.S. left a message cancelling future appointments as she had told P.K. to leave the home. Ms. Knoll offered M.S. individual counselling but had no further contact with her.

7. Donna Jones is a child protection worker with the Ministry of Social Services. She has been in this position 10 years. She works with families to address child protection concerns where children are at risk. In June 2010 she received this file from Nicole Ansell who went on maternity leave. Ms. Jones first met M.S. and baby T.J.E.S. at a scheduled visit in June. She introduced herself, reviewed where things were going and provided an opportunity for questions. M.S. questioned issues that had been dealt with such as the problem with breast feeding and DNA testing.

M.S. wanted a second opinion as to whether the baby was really allergic to her breast milk. Ms. Jones told M.S. these decisions had already been made and it was up to her to obtain and pay for a second opinion. Ms. Jones related that M.S. continually contacted her, sometimes with unreasonable requests and other times it seemed more just to chat. M.S. had requested visits outside of the office such as at the park, Wal-mart or at Tim Hortons. The Ministry was pursuing a permanent order so the visits had to be supervised at the office. Two supervised visits outside the office were allowed to have pictures taken.

M.S. developed an acceptable routine when visiting. P.K. sometimes came to the visits, but often left early and did not actively participate. As the case management worker, Ms. Jones is to help parents recognize issues to be addressed and to motivate them to connect with the appropriate resources. Ms. Jones was aware of the history of the Ministry’s involvement with M.S. and the basis of the apprehension of the infant. She noted that M.S. was uncooperative with the Ministry previously in regards to services. Ms. Jones looked at previous parenting capacity assessments with respect to the other children.

The same issues were still present such as M.S.’s failure to focus on the actual visit, inappropriate conversation, and inappropriate expression of anger. M.S. said she was willing to change and was prepared to work with the Ministry. In November and December 2010, M.S. called to discuss past and current concerns of P.K. sexually abusing the children. These concerns were discussed with M.S. and she was advised to report them to the police. Ms. Jones was also obligated to contact the police and report these allegations. P.K. also called. He admitted that he had a child porn site on his phone.

P.K. still wanted to see T.J.E.S. He had been to Mental Health to complete a sexual offence risk assessment. After the pre-trial conference in December 2010, supervised visits at M.S.’s home occurred. Ms. Jones referred the parents to couple’s counselling to which they agreed. M.S. and P.K. needed to decide the status of their relationship. Ms. Jones referred and connected the parents with other resources such as the anger management program at the Transition House, parenting courses, and Mental Health. Ms. Jones was aware the Ministry had decided to seek a permanent order on T.J.E.S.

She reminded the parents of this many times and tried to talk to them about other outcomes. She wanted the parents to connect with some resources so they would feel more successful. Ms. Jones told M.S. about the Transition House anger management course as she felt M.S. still had anger issues. M.S. mentioned she had made an appointment to investigate mental health issues. M.S.’s level of cooperation varied depending on whether she was getting her way. On cross-examination Ms. Jones stated that she reviewed the complete file including the previous parenting assessments.

She admitted that M.S. seemed to love and bond with the child. M.S. did nothing to harm the child. Ms. Jones repeated that at times M.S. was difficult to talk to, due to her inability to focus, her frustration, and being argumentative. Ms. Jones was concerned that she could become so unfocused or distracted that she could forget the child. M.S. admitted she had not been cooperative with the Ministry in the past. Ms. Jones agreed that people will jump through hoops to have their children returned and that people in desperate circumstances make desperate requests. 8.

Gisela Hall has been a supervisor at Family Services since 2004 and has worked for the Ministry since 1983. She is the supervisor of Donna Jones. Ms. Hall was part of the Permanency Planning Review committee that decides the type of order the Ministry will request. The committee reviewed the history of these parents with the Ministry, which included the orders with respect to the three older children, the 2007 parenting capacity assessment of Francis Stewart and the 2010 parenting capacity assessment of Dr. Tim Greenough.

The committee concluded that between 2007 and 2010 there was no significant change in M.S.’s capacity to parent. The committee put a great deal of weight on Dr. Greenough’s assessment. If Donna Jones, the present case worker, had suggested a different recommendation other than a permanent order, Ms. Hall would have had to discuss that with the committee. On cross-examination, Ms. Hall admitted there was no input from the client at the time the committee met. One of the tools the committee uses is a risk assessment matrix called “Permanency Planning: children under eight years of age”.

The result indicated that these parents have little chance of success. Ms. Hall admitted that generally the visits by M.S. with the baby had gone well the past year. She concluded that given the history and the opinion of the experts, the risk was too high to return this baby to M.S. even after a temporary or supervisory order.

9. Dr. Tim Greenough was, by consent, qualified and allowed to give opinion evidence in the area of the preparation and assessment of parenting capacity. Dr. Greenough explained the process he follows which includes reviewing the history, previous assessments, meeting with the parents, observing the parents with the children in the home. He also conducts a number of psychological tests and assessments, the results which are detailed in his report, Exhibit P3. A draft copy of his report (without his opinion) is sent to the Ministry and the parents for feedback and then he completes and submits his final report.

It is important to remember that Dr. Greenough’s report is an assessment of the parents’ capacity to parent in relation to the three older children. The assessment was done in early 2010, prior to the birth of T.J.E.S. This report documents the observations, tests and findings of Dr. Greenough. In making his assessment as to capacity to parent Dr. Greenough looks at the strengths and weaknesses of each parent.

On the strength side he notes the following with respect to the mother, M.S.: She is of average intelligence; no physical ailments; no evidence of a psychological pathology; cooperated with this process; the home was adequate; the child, J.S., expressed a desire to live with her mother. On the weakness side of the equation Dr.

Greenough notes the following in relation to M.S.: She comes from an abusive home, lack of stable work, history of drug use and no identified treatment; criminal involvements; risk taking, impulsive behaviour, weak and unchanged parenting skills; unrealistic career aspirations; unstable volatile relationship with P.K., did not complete the alternative to violence program; number of mental health issues and no sustained commitment to treatment; lack motivation to seek treatment; lack pro-social support; history with Social Services and lack of compliance with previous orders; motivation for attending classes driven by the Court process.

Dr. Greenough described the same process for the father, P.K., noting many of the same weaknesses as for M.S. In addition, he noted that P.K. is of low intelligence, has a criminal history, a moderately unstable work history, high risk for depression, many mental health issues including fetish behaviour that have not been addressed and the unstable relationship with M.S. Dr. Greenough stated P.K. and M.S. should attend parenting groups and relationship or couple’s counselling. On cross-examination, Dr.

Greenough testified that if the parents had been able to demonstrate some improvements in the noted weak areas, this would have moved his assessment in a more positive direction. Dr. Greenough was familiar with the Francis Stewart report (Exhibit P2), but did not notice any of the unsanitary, unkept conditions noted by Mr. Stewart. Dr.

Greenough stated some of his other findings as follows: concerns over lack of follow-up by M.S. regarding a possible bi-polar disorder; concern she was minimizing previous drug involvements; acknowledgement that some people can quit using alcohol or drugs on their own and that the situational tests are not one hundred percent accurate. There had been many stressful events in M.S.’s life in the preceding 12 months prior to this that would elevate her parenting stress index. In particular the family dynamics involving J.A.S., M.S. and M.S.’s mother were tense. Dr.

Greenough stated that individuals experiencing a lot of stress may be less able to respond to the needs of a child. Often day to day problems can be magnified out of proportion and a person is less able to cope. He agreed that the child, T.J.E.S. is not assessed as a high needs child. He stated that in the past the mother’s home life was unstable and abusive. The research shows that this can have an effect on one’s well-being and mental health. He agreed that one can be unemployed and a good parent.

His concern with respect to the mother’s history of not following a court order is consistent with her history with the Ministry of Social Services. However, he agreed that as a person matures, they are more likely to take direction or it is possible that an event such as these court proceedings can result in a person “waking up”.

Mr. Ottenbreit questioned Dr. Greenough about P.K.’s fetish for women’s underwear. The doctor stated that in most cases there is no criminal behaviour associated with this fetish. The potential impact would be on the child if he observed his father in women’s underwear and the potential financial impact on the family. In conclusion, Dr. Greenough testified that the father, P.K., was a liability overall and if he was out of the picture some of the risks in returning the children would be decreased. 10. Jane Lynn is the current foster mother of baby T.J.E.S.

She describes the child as very healthy, well-behaved, and plays alone or with others. A child anyone would want. He is developing normally, although he has asthma. She takes T.J.E.S. to the Ministry’s office twice a week for visits by the mother. Ms. Lynn has noticed on the drive home after the visits T.J.E.S. cries uncontrollably and is very fussy. The evidence for the parents : [ 13 ] Three witnesses testified, including both parents. P.K. testified he was currently a part-time janitor at the military base. He has been with M.S. on and off for about nine years.

He believes he is the father of the subject child. He acknowledged that he and M.S. have had a history of domestic violence, the last incident was five years ago when he assaulted M.S. At the request of M.S. they have been living separate and apart since March 15, 2011. P.K. loves the baby, T.J.E.S., although he was nervous handling a newborn. He has attended many of the visits and feels comfortable playing with the baby. He admits he has several issues to deal with and is continuing counselling and groups, such as Mental Health, parenting classes and anger management. He believes this will benefit him.

He wants to visit this child. He spoke about his underwear fetish and the professional help he is seeking. He has no record for child abuse. On cross-examination, he acknowledged he has been involved with Mental Health on and off all his life. In 2010 he saw his mental health worker on an as needs basis. He also admitted to anger problems and in the past to slapping the child, J.A.S., which he acknowledges was wrong. He would like to visit the child T.J.E.S. if the child was returned to M.S. [ 14 ] Kayla Erbach is a single mother on assistance. She has known M.S. and P.K. for five to six years.

She observed the parents to be loving and caring with the two oldest children, J.A.S. and J.J.S. She never saw any drugs, alcohol or physical abuse in their home. [ 15 ] M.S. is the mother of the subject child, T.J.E.S. The older three children have been the subject of previous proceedings and on March 4, 2009 the two older children were placed with a person of sufficient interest and the third child was made a permanent ward of the Ministry. [ 16 ] M.S. seeks the return of her fourth child, T.J.E.S. M.S. admits that in the past she refused to seek help or follow any requirements of the Ministry.

She testified she has had regular contact with baby T.J.E.S. since birth and she visited regularly as arranged with the Ministry. [ 17 ] In April 2010 she requested and obtained money from her financial worker, Mark Branning, to purchase a baby layette and crib. Since she had no other information, she assumed she would be able to take her baby home. Shortly before she had the baby, she was told that the Ministry would be apprehending the baby. [ 18 ] In June 2010, her new worker, Donna Jones, clearly stated the Ministry was seeking a permanent order.

However, M.S. thought she might have T.J.E.S. returned to her if she took the suggested classes and counselling. She saw a mental health counsellor and participated in one-on-one counselling. She is considered low priority and is on a waiting list to see Colleen Pilkie, at Mental Health. [ 19 ] M.S. admitted her shortcomings. She is becoming more educated on how to parent. She is prepared to work with Social Services. She is more receptive to their suggestions. She acknowledged that in the past her house was dirty, and she was not following the Ministry’s suggestions or coping well.

She acknowledged her past relationship with P.K. and that they have reconciled many times. They have not been together since March 2011. P.K. has his own place and a new job. She emphatically states that the relationship has ended for good. She stated she is six weeks pregnant and the father is not P.K.

[ 20 ] M.S. was working at the pork plant in Moose Jaw and plans to reapply at the end of June. If she returns to work she has checked out daycare and could make the necessary childcare arrangements. P.K. could visit the child on the weekends. She is renting a two bedroom duplex, has a playpen and other baby items, and she is able to get furniture. [ 21 ] M.S. explained some of her behaviour as described by the witnesses. She testified that in the past she was frustrated with the Ministry and was not meaning to be rude to the workers. She found Ms. Jones the most understanding of the workers.

She admits that she often had a lot of questions for Ms. Jones as she only had a few opportunities to meet with her alone without the baby. In fact, she would have so many questions that she blurted them all out at the beginning of the visit. When the baby was present she was just interested in focusing on him. She loves the baby very much, especially when he greets her with his big smile and his arms out. [ 22 ] M.S. requested that some visits occur at the nearby park rather than the small, hot and stuffy, windowless room at the Ministry’s visiting area. She had a snuggly for the baby.

She explained her behaviour at the Transition House group as a joke, that she went along with. She denies having a cell phone but admits to chatting with one of the other participants. She explained that a cell phone with texts relating to class material was being passed back and forth. On reflection she admits she should have waited her turn to speak. M.S. testified her first priority was her child. She does not use alcohol or drugs anymore.

Alcohol has never affected her ability to look after her children. [ 23 ] On cross-examination, M.S. agreed she had extensive involvement with the Ministry over many years, both in Moose Jaw and Swift Current. She has started addressing some of the Ministry’s concerns. She had participated in programs in December 2010 and January through March 2011 prior to T.J.E.S.’s birth, participating in such groups as Kids First, Dealing with Anger, and Mental Health counselling. [ 24 ] Ms.

Jones always stated the Ministry was seeking a permanent order but M.S. was aware the Ministry’s position could change so she has never given up hope to have T.J.E.S. returned. The mother says she is prepared to follow through with meaningful participation in programming this time. When her older children were apprehended and she was younger, she thought she knew everything, and did not take the programs seriously.

POSITION OF THE PARTIES : [ 25 ] The Ministry’s position is based on the following grounds: the history of the parents with the Ministry, the 2007 parenting capacity assessment of Francis Stewart (in relation to previous apprehensions of the older children), the February 2010 parenting capacity assessment of Dr. Tim Greenough, and the historical non-compliance and attitude of the parents, particularly M.S., the mother, with the Ministry. [ 26 ] The Ministry noted the parents did not provide any independent evidence to support their argument that they were taking steps to address the problem areas.

It was not until the matter was set for trial did the mother take any positive steps. [ 27 ] The Ministry relies on the provisions of the Act that it is responsible for the welfare and protection of children. The Ministry must have regard to the child’s best interests and take into account the factors stated in

section 4 of the Act. [ 28 ] The Ministry argues that given the extensive past history involving three older children of M.S. and P.K., the Ministry properly apprehended T.J.E.S. pursuant to

section 11(

b) of the Act. The Ministry states the permanency planning committee was of the opinion there was no use putting off the inevitable. [ 29 ] The Ministry relies on Dr. Tim Greenough’s 2010 parenting capacity assessment. The Ministry is not convinced that the mother is able to sustain any of the changes she might have made. The Ministry is not convinced the mother will continue with any programming.

[30] Counsel for the parents submits that there was no basis for the apprehension. He argued that the Ministry decided prior to thebirth of the child to apprehend and as a result did apprehend the child on April 20, 2010. He argues that the mother has never been giventhe opportunity to parent. The entire case against her is based on history with the Ministry in relation to three older children. [31] In addition, the evidence at this trial indicated that M.S. has had regular supervised visits with the child. She hasacknowledged her past conduct and attitude.

She has taken many steps to address the concerns of the Ministry. Counsel for the mothersuggested that the Ministry decided that M.S. would not or could not change. ISSUES AND ANALYSIS: [32] In this particular case the Court must first decide whether the initial apprehension of this child, T.J.E.S., on April 20, 2010,was in accordance with the Act. [33] The analysis must start with a careful consideration of s. 11 of the Act. The Ministry relies on s. 11(

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

b) there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child hasoccurred or is likely to occur; [34] In A.J.R.M. (Re), 2010 SKQB 371 , 365 Sask. R. 249, Madam Justice Rothery of the Court of Queen’s Bench foundthe child was in need of protection when the child was apprehended one day after birth. The baby was apprehended because the mothertested positive for a residual amount of marihuana.

As well, the confrontation at the hospital with the father made it essentiallyimpossible to determine at that time if there was in fact any other option available rather than apprehending the child. [35] The Court also quotes with approval the July 22, 2009 decision of Madam Justice Ryan-Froslie, namely C.C.A.E. (Re), 2009SKQB 308 , 339 Sask. R. 239, where at paragraphs 30 to 32 the Court comments on the Ministry’s authority to apprehend achild as follows: [30]

Section 17 of The Child and Family Services Act governs the apprehension of children in Saskatchewan. While that

section has notbeen the subject of direct judicial

interpretation by the Courts of this Province, it was considered in obiter by Justice L’Heureux-Dubewho rendered the majority decision for the Supreme Court of Canada in Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R.519, 2000 SCC 48. At para. 33 she stated: [33] ...

Saskatchewan’s warrantless apprehension also suggests an emergency criterion by requiring that the child be “at risk of incurringserious harm”, although apprehension is obviously a last resort, since the provision stipulates that it can occur only where “no otherarrangements are practicable”: The Child and Family Services Act, S.S. 1989-90, c.

C-7.2, s. 17(1). [31] The stated objective of Saskatchewan’s child protection legislation is set out in s. 3 of The Child and Family Services Act as follows: ... to promote the well-being of children in need of protection by offering, whenever appropriate, services that are designed to maintain,support and preserve the family in the least disruptive manner. Based on this section, apprehension of a child which constitutes the most extreme form of state intervention should be viewed as a lastresort. (See: Winnipeg Child and Family Services v.

K.L.W., supra, at para. 79). [32] It is clear that before an officer (in this case a supervisor for the Ministry) apprehends a child pursuant to s. 17 of The Child andFamily Services Act they must conclude firstly, that a child is in need of protection and secondly, that the child is at risk of incurring“serious harm”. Those conclusions must be based on reasonable and probable grounds.

In addition, the officer is directed to consider allother reasonable options before proceeding with an apprehension. [36] Madam Justice Ryan-Froslie goes on to discuss the meaning of reasonable and probable grounds, as this term is not defined inThe Child and Family Services Act, at paragraphs 34, 35, and 38 of C.C.A.E. (Re), supra, she states as follows:

34. Child protection legislation has long been viewed as quasi-criminal in nature. Legal counsel for both the Ministry and Franindicated in argument that the phrase “reasonable and probable grounds” has the same meaning as that prescribed to it by Courts in thecriminal law context. 35. Courts in all jurisdictions of Canada, including the Supreme Court of Canada, have discussed what is meant by “reasonable andprobable grounds” in the criminal law context in circumstances relating to warrantless searches and seizures. While the phraseologyvaries, the theme is basically the same.

Whether “reasonable or probable grounds” exist must be based on an objective view of thetotality of the evidence in existence at the time the belief was formed. The test is not whether the belief was correct but rather whether itwas reasonable in the circumstances having regard to the nature of the information relied upon (i.e. its strength and reliability). (See: R.v. Gill, 2008 SKQB 445, [2008] S.J. No. 679 (QL); R. v. Trask (1987), 3 M.V.R. (2d) 6 (N.S.C.A.) and R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254.) 38.

In interpreting s. 40(7) of the Ontario legislation, Justice Quinn in the Children’s Aid Society of Niagara Region v. C.B., supra, atparas. 36 and 39, stated the following: [36] In criminal law, “reasonable and probable grounds” means a “reasonable probability.” I see no reason to ascribe a differentmeaning in family law. (R. v. Debot, (SCC), [1989] 2 S.C.R. 1140.) [39] ... Those risks [warranting an apprehension] are not defined or quantified in the Act.

Nevertheless, the risks must be real in theeyes of the worker, in light of what she knew at the time and what she reasonably should have known; furthermore, the risks must be seento be real by an objective observer when viewed in that same light.

The risks here, although real, were low and the harm non-imminentand all protection concerns could have been satisfied, and satisfied easily, be means of an approach far less intrusive and heavy-handedthan apprehension. [37] Did the Ministry have sufficient reasonable and probable grounds to believe that T.J.E.S. was in need of protection at the timeof the apprehension? [38] Nicole Ansell testified that the decision to apprehend this child was based on the history of the parents and the three olderchildren with the Ministry.

The Ministry had worked with this family for six years and were of the opinion that the ability of M.S. tolook after children was limited. M.S. and P.K. had a history of domestic abuse. In particular, Ms. Ansell referred to the parentingcapacity assessments of Mr. Stewart and Dr. Greenough, and the findings and decision of Judge Matsalla.

The Ministry takes itsresponsibility to look after the best interests of a child very seriously, and concluded it could not put the child at risk. [39] Francis Stewart is a registered psychologist and his report dated January 19, 2007, was filed by consent as Exhibit P2 in theseproceedings. Judge Matsalla in his March 4, 2009 decision regarding the three oldest children refers and relies heavily on this report. [40] Mr. Stewart reviewed the file history at the Ministry of Community Resources and Employment in July 2006 and startedinterviews with the parents in late August 2006.

Further interviews, a home observation and psychological tests were conducted at p. 50to p. 52 of the report. Mr. Stewart makes it clear that these recommendations “ ... are done so to inform the referring agent of theopinions of the psychologist as to the best interest of a particular child. The recommendations are not made with respect to a parent’swishes, but rather to that of the needs of the child. Many times, what a parent wants and feel they need, are quite different from what thepsychologist might determine that a child needs.” [41] At this hearing, Dr.

Tim Greenough testified with respect to a more recent parenting capacity assessment. His curriculumvitae and report are filed as Exhibit 3 and 3a respectively, in these proceedings. Dr. Greenough met M.S. and P.K. in their home inMoose Jaw, February 16, 2010. The report was completed in March 2010 and the children involved are again the three oldest. Thechild of the present apprehension was not yet born. [42] In my review of the evidence, I noted that Dr. Greenough arrived at his conclusions by reviewing what he found to be thestrengths and weaknesses of the parents. He made six recommendations as follows: 1.

It is recommended that the children not be returned to M.S. and P.K.’s care. The writer was concerned that M.S. and P.K. havenot made sufficient change or commitment to change to warrant the potential risks of returning the children to their home. 2. It is recommended that J.S. (April 27, 2002) be given greater opportunities to visit her mother.

3. It is recommended that J.S. (July 12, 2005) continue to have opportunities to see her parents. 4. It is recommended that P.K. participate in treatment and counselling to address anger issues as well as his concerns about hisidentity and feelings of depression. 5. It is recommended that P.K. and M.S. participate in a parenting group. 6. It is recommended that M.S. and P.K. need to resolve whether or not they plan to stay together.

Attending couple’s counsellingmay help resolve this issue. [43] At the time of apprehension the Ministry would have been aware that M.S. had a full-term pregnancy, there were no problemsnoted at birth, and there was no indication of any birth defects or deformities or signs the baby was suffering from alcohol or drugwithdrawal.

There was no evidence to suggest that T.J.E.S. was anything but a healthy baby boy. [44] The Ministry should also have been aware that M.S. had requested and received from her financial worker, monies to purchasea layette for the baby, and that M.S. was not told that the baby was going to be apprehended until shortly before his birth. [45] This is the sum total of the information known to the Ministry, April 20, 2010.

All the other testimony the Court heard was inrelation to the time period from April 20, 2010 (after apprehension), to the date of trial. [46] I shall now return to the question I posed at the beginning of this discussion, is this child, T.J.E.S., in need of protection withinthe meaning of the Act. [47] The birth registration indicates a 40 week pregnancy and a baby weighing 3815 grams or 8.42 lbs. We did not hear of anyproblems at birth or birth defects. Dr.

Greenough noted that responses to the substance abuse subtle screening inventory-3 (SASSI-3) byMuler (1997) indicated a high probability of having a substance dependence disorder. Earlier in his report, Dr. Greenough notes in atelephone interview with Ms. Leslie Kisch of the Ministry that in 2007, Addiction Services tried to assess M.S. They determined she wasnot being truthful so no further services were provided. However, there is no evidence of drug or alcohol abuse by the mother. [48] The history of M.S. not cooperating with the Ministry is not being disputed. However, this was with three older children.

TheMinistry quite rightly gave M.S. many opportunities from 2002 to deal with the problems. The Act requires nothing less. [49] Counsel for the Ministry takes the position that this child is in need of protection immediately after his birth, due to the“history”. The Ministry’s entire case is based on the previous conduct of these parents and assessments that have been completed inrelation to the three older children. [50] Counsel for the parents submits that the Ministry jumped in too soon.

M.S. has never been given an opportunity to parent thischild and therefore the “history” and previous assessments are of little value. Counsel quoted the case of (Minister of Social Services) v.E.(S), (SK KB), [1992] 5 W.W.R. 289 (Sask. Q.B.), where Mr. Justice Baynton states at p. 296: ... the issue is not whether the children might be better off or happier or obtain a better upbringing in the care of other parents then withtheir natural parents.

The issue however really is whether the children concerned are receiving a level of parenting care that is below theminimal standard that will be tolerated in our society. [51] It is clear that in the past, the level of parenting has not met the minimal standard. However, I need to consider the timeperiod as of April 20, 2010. The Ministry had decided prior to this time, to apprehend the child at birth and sent out an alert to thehospitals in the area. In the circumstances presented in evidence and pursuant to the factors set out in s. 11 of the Act, was the child inneed of protection?

I cannot overemphasize that this child was not the subject of any previous apprehensions, court orders or decisions. This is a fresh start for the parents, but for the baggage that comes with them that being their history with the Ministry.

[ 52 ] The evidence and report of Dr. Tim Greenough (pages 3 and 3a) provides more current information. However, this report and Dr. Greenough’s testimony must be considered with reference to the three older children. Dr. Greenough states that the purpose of his evaluation in 2010 was as follows: Mr. Sim Stinson (Lawyer) represented M.S. in her dispute with the Ministry of Social Services as to whether her three children should be returned to her care. Mr. Stinson requested that the writer conduct an evaluation of M.S. and her capacity to parent her children. [ 53 ] Dr.

Greenough first met with the parents February 16, 2010, in their Moose Jaw home. He notes that “throughout the assessment process M.S. and P.K. appeared motivated and cooperative”. [ 54 ] Dr. Greenough analysed the parents’ situation in terms of strengths and weaknesses. He then concluded that these three older children should not be returned to the parents. At page 29 he states the parents have not made sufficient changes or commitment to change to warrant the potential risks of returning the children to their home. [ 55 ] I find it useful to look at these strengths and weaknesses Dr.

Greenough recorded in more detail and to do this I will identify them in two columns as follows: Strengths Weaknesses 1. M.S. has at least average intellectual ability. 1. M.S. raised in an abusive home environment with a high level of instability 2. M.S. has no physical ailments that compromise her ability to parent. 2. M.S. has not had a successful work history and unemployed at the time of the evaluation. 3. M.S. displayed no clear evidence of clinical psycho pathology on her PAI profile. 3. M.S. has history using illicit drugs. M.S. claims she has not used for 9 years but has had no identified treatment. 4.

M.S. cooperated with the assessment process. 4. M.S. has a recent criminal record for breaching a recognizance. 5. P.K. appears to have been raised by adoptive parents who provided him with a supportive healthy home. 5. M.S.’s profile consistent with other individuals who displayed risk taking and impulsive behaviour. This was in stable finding noted in previous evaluations. 6. P.K. is in good physical health. 6. Ministry’s PSI profile suggested that her interaction with J.A.S. was not rewarding for her. 7. J.A.S. would like to live with her mother and have more contact. 7.

M.S. verbalized knowledge of parenting skills was weak and not substantially improved for 2007. 8. M.S. and P.K.’s house was adequate to meet the needs of their children. 8. M.S.’s career aspirations are unrealistic.

9. P.K.’s PAI profile suggests he is experiencing anxiety and tension. He is concerned with his personal relationship with M.S. his ability to communicate is compromised. He may be suffering from depression. 10. P.K. has a history of difficulty with alcohol and may be at a risk of using inappropriately in the future because of his anxiety and tension. 11. P.K. acknowledges some transient and fetish features involving women’s underwear. In the past he has taken J.A.S.’s underwear. 12. M.S. and P.K.’s relationship not stable since 2007. 13. P.K. has not completed alternative to violence program.

Concerns about anger management. 14. M.S. and P.K.’s motivation for treatment lower than individuals seen in treatment settings. (PAI) Lack of consistent involvement in treatment is a concern. 15. M.S. and P.K. lack prosocial support. 16. M.S. and P.K.’s history of not cooperating with Social Services. 17. M.S. and P.K. only recently participated or planned to participate in training and counselling. This suggests that their motivation is primarily driven. 18. P.K.’s work history is unstable. At June, unemployed. [ 56 ] Dr.

Greenough noted two neutral observations, namely, P.K. is of low average intellectual ability, and P.K. has a criminal history, the last charge being in 1990. [ 57 ] If P.K. is taken out of the equation there are five areas of strength for M.S. and 13 weaknesses for M.S. or M.S. and P.K. If one was to do a mathematical approach, the outcome is clear. However, Dr. Greenough admitted, when asked by the Court, that each strength and weakness ought not be given equal weight. [ 58 ] Under the weakness column, in my view, numbers 1, 2, 3 and 6 should be accorded less weight.

M.S. cannot change her background and it no doubt has had an effect on her. However, new skills and approaches can be learned. There are many reasons for M.S.’s poor work history no doubt. Some may have been due to the personality traits noted, but other explanations are lack of education, being a young woman and lack of support. While in-patient treatment and counselling is part of an effective treatment plan for alcohol and drug abuse, the evidence presented does not indicate in the past year, in relation to this child that it is of concern.

[ 59 ] Weakness numbers 14, 16, and 17 were emphasised by the Ministry. Again they are part of the history of the parents with the Ministry. I accept these concerns. If the parents do not work with the Ministry in terms of attending and participating in programs the Ministry has less confidence that the best interests of the children will be taken care of. [ 60 ] I acknowledge and commend the Ministry for recognizing the important role they play in protecting children. The Ministry is required to make difficult decisions based on information it has at the time.

While the Ministry cannot predict behaviour, it still has to make an assessment of future behaviour which is often based on the past history of a family with the Ministry. The Court in C.C.A.E. (Re) , supra, put it well at paragraph 22: Children are among the most vulnerable members of society. They are dependent upon their parents and/or caregivers for the necessities of life and the protection of their physical, mental and emotional well-being. Sadly, parents and caregivers sometimes fail in their duty to protect and nurture the children in their care.

Society and governments in general have long recognized the need to intervene to protect children from harm. This is a universally recognized principle as evidenced by the United Nations Convention on the Rights of the Child to which Canada is a signatory.

It is also recognized in Canada by the existence of provincial child protection legislation. [ 61 ] At paragraphs 25 and 26 of C.C.A.E. (Re) , the Court points out that it is “serious harm” or the threat of harm that provides sufficient grounds to apprehend a child: That is not to say that a child must suffer actual harm before it can be said they are in need of protection. The threat of harm may be sufficient. The word “harm” is synonymous with injury and includes a wide spectrum of situations from slight and inconsequential harm to serious and grievous harm.

It is “serious harm” that warrants the apprehension of a child pursuant to s. 17(1) of The Child and Family Services Act . [ 62 ]

Section 17(

a) and (

b) of the Act requires the officer (as defined in s. 2(m)) to not only have “reasonable and probable grounds, that a child is in need of protection and at risk of incurring serious harm”, the officer is to take all reasonable steps to provide for the safety and welfare of the child including the offer of family services. Subsection 17(1) (

b) goes on to state the child is only to be apprehended “where no other arrangements are practicable”. [ 63 ] There was no evidence presented at trial with respect to any attempts by the Ministry to pursue any less intrusive alternatives. The Ministry proceeded directly to the most severe position being a permanent order. In my view the evidence does not justify this position.

There was no medical evidence to indicate that this baby had physical problems or that there were any problems with the pregnancy. [ 64 ] All the Court heard was that because of the past history of M.S. with her other children, the Ministry was not convinced that M.S. could sustain any change in improvement long-term. M.S. had not made much effort to follow any of the recommendations of the Ministry.

It was after the apprehension that M.S. and P.K. made a concerted effort to follow through with programming and counselling. [ 65 ] M.S. was not given any opportunity, due to the early apprehension, to parent this baby. I equate this situation with the “hunch” Judge Morgan refers to supra . In my view, without something more, this is not sufficient to satisfy the “reasonable and probable grounds” requirement.

It is not sufficient to establish that T.J.E.S. was in need of protection within the meaning of the Act at this point in time. [ 66 ] A good portion of the evidence at trial concerned the actions of M.S. and P.K. after the apprehension. I am unclear as to whether the Ministry was relating this evidence to bolster or justify its decision to apprehend T.J.E.S. at birth, or whether it was to convince the Court that a permanent order under s. 37 is necessary in these circumstances.

In order for this apprehension to be lawful within the meaning of the Act , there must be more evidence than M.S. being a “bad parent” in the past. The events after April 20, 2010, cannot be used to justify the apprehension. Otherwise, every baby she may give birth to in the future will be apprehended at birth because of her “history”.

[67] In conclusion, I have determined that T.J.E.S. was not in need of protection pursuant to s. 36(3) of the Act. I dismiss thisapplication. [68] As a result of my finding that T.J.E.S. was not in need of protection on April 20, 2010, I need go no further.

However,assuming I am incorrect and that T.J.E.S. was apprehended in accordance with the Act, I will consider the appropriate order under section37. [69] I go back to the test as set out by McIntyre J. in E.K.S. at paragraph 49 as follows: The Court, having determined the child to be in need of protection, has determined that the level of parenting care is below the minimumtolerated by society. Therefore, in determining whether an order under s. 37(1) is appropriate, including conditions which could beattached, the court must be satisfied either: (

a) The parent or parents have altered his or her ways such that the circumstances which gave rise to the determination that the childwas in need of protection no longer exist, or (

b) The court is satisfied that there is a realistic plan or a reasonable basis upon which to conclude that the necessary changes canoccur within a reasonable time whereby the children can be safely returned to the care of their parent or parents. (Saskatchewan (Ministerof Social Services) v. A.J. and C.J. (1987), (SK CA), 58 Sask. R. 246 (C.A.); Saskatchewan (Minister of SocialServices) v. M.L. and M.L.M. (1988), (SK KB), 71 Sask. R. 110 (U.F.C.); M.A.C. v. Saskatchewan (Minister of SocialServices), supra; Saskatchewan (Minister of Social Services) v.

R.G., supra.) [70] M.S. was quite candid in her evidence and past involvement with the Ministry. She was young, thought she knew everythingand was not about to take much direction from anyone. M.S. is not a shrinking violet. She has opinions and is not afraid to expressthem. She challenges opinions that she does not agree with and wants good solid reasons before she accepts another point of view. As ayoung person she had her difficulties. She has been involved with P.K. for many years and he is the father of three of the children. BothM.S. and P.K. acknowledge the relationship has been abusive.

The instability of the relationship has been commented on by FrancisStewart, Dr. Greenough and the Ministry. [71] M.S. and P.K. were living in the same house in 2010 when Dr. Greenough did his assessment. They had separate bedroomsand each was free to date others outside the home. Both claim the relationship is over. [72] Donna Jones has been involved with M.S. since Ms. Ansell went on leave in early June 2010. Visits were arranged at theMinistry office and Ms. Ansell noted that M.S. physically handled the child well. Breast feeding became an issue and was stopped ondoctor’s orders.

M.S. was not pleased and wanted another opinion. The foster mother was having to cope with a little baby who wasvomiting and very unhappy. M.S. is said to have persisted with Donna Jones requesting a second opinion. This is only natural as breastfeeding is a way to bond with the baby and is generally recommended by the medical community. [73] M.S. was diligent in visiting twice weekly at the Ministry’s office.

The fact that she asked to go to the park, mall or TimHortons is of no consequence other than indicating being confined in a small room with a baby for two hours can be tedious. [74] At trial, both parents testified they were living separate and had no intention of reuniting. They have said this before. However, M.S. confessed to seeing someone else and being six weeks pregnant.

P.K. stated he had his own place and a part-time joband he would like to have visiting rights. [75] The evidence presented by the Ministry and reviewed in some detail shows that M.S. has contacted and attended variousprograms since the spring of 2010. It is noted that most of the programming has occurred since January 2011. M.S.’s attendance has notbeen perfect but for the most part she called ahead when she was unable to attend.

[76] I accept the mother’s evidence and explanation of events from the past year. The witnesses for the Ministry confirm that themother accessed various programs and participated in them. She did not attend all appointments but called ahead to cancel and/orreschedule. There was evidence from Lois Thomson and Lisa Berry that she did not always respect the group rule of one person talkingat a time. There was also the panty flag incident. The mother explained both incidents and I am not prepared to conclude from suchincidents that she is not able to care for her baby.

The Ministry argues that these are just examples of the mother’s impulsivity andinability to focus. This coupled with all the phone calls, and questions of her worker, Donna Jones, along with sometimes carrying on aconversation with the worker when having a supervised visit, having an unrealistic career goal as related by Dr. Greenough all point tothe fact that the situation meets the requirements of s.11(

b) of the Act, according to the Ministry. [77] I am satisfied that M.S. is making progress. She has explained her version of the problems encountered in some of the classessuch as talking, joking around and the panty flag. I acknowledge M.S. may be making light of these incidents. On the other hand,because of her history, I am concerned the Ministry may be attaching too much weight to these episodes. Overall, I conclude M.S. isaddressing some issues as identified by the Ministry. She is now 28 years of age and with the passage of time she is maturing.

Sherealizes that she needs to establish a positive track record. [78] Dr. Greenough noted that the home was clean and tidy, adequately furnished and the cupboards stocked with proper food. The house was in a neighbourhood not associated with a lot of crime/vandalism. [79] The weaknesses that would be of the most concern and most relevant are #5 and #7 on my chart. In regards to the risk takingand impulsive behaviour finding, there is nothing more than this profile. There was no evidence presented for the Court to draw theinference that this type of behaviour would result in the baby being at risk.

The “underwear flag” episode is not sufficient. [80] The other weakness was the mother’s lack of improvement since 2007 of her ability to verbalize parenting skills as measuredby the Parent Awareness Skills Survey. [81] Again, Dr. Greenough gave an example of a scenario he used with M.S. (the 8 year old took a toy of the 3 year old). Heconcluded her answer did not demonstrate a sufficient grasp of parenting skills. In my view, her answer was a practical and appropriatesolution to the matter that any parent might use. It is true the answer did not incorporate verbally the stages of child development andtheory.

However, the practical solution of speaking to each child at an age appropriate level incorporated some understanding of childdevelopment. M.S. did not over-react and clobber the 8 year old. [82] In the recent case (June 16, 2011) of Saskatchewan (Minister of Social Services) v. D.D., T.D. and J.D., 2011 SKPC 76, 2011 SKPC 076, Judge B.

Morgan states at para. 45: However, once the decision to apprehend is made, s. 17(3) also places a positive statutory obligation upon the worker to return the childto his or her custodian if the officer no longer believes a child would be at risk of incurring serious harm if returned. Thus, Ministryofficials are required to reassess the situation on an ongoing basis (see M. (A.J.R.), Re, 2010 SKQB 371, @ para. 32). [83] Since the birth of T.J.E.S. the evidence was that the mother has made significant efforts as required by the Ministry.

Although not perfect, she is moving in the right direction, and in my view making some considerable efforts. She is showing progress inattitude and actions. [84] The legislation requires the Court “to promote the well-being of children in need of protection” and “to determine the bestinterests of a child”. I have considered the factors enumerated in

section 4, in light of the evidence. I conclude that even if theapprehension was in accordance with the Act, I would return the child to the mother pursuant to s. 37(1)(a).

SUMMARY: [85] I have found that there was no basis for the initial apprehension. [86] Therefore, the Act requires that the child, T.J.E.S., shall be returned to the mother, M.S., who is a person who has a right to

custody of the child pursuant to s. 36(3) of the Act. The “best interests of the child” is an important factor in all orders. I am satisfied I have jurisdiction to order the return be done following a transition period. This shall be done on a transitional basis as determined by the Ministry. T.J.E.S. is to be completely returned to the mother, M.S., within 30 days of this order. P.K., the father, is not living with the mother and requested only access. Dated at Moose Jaw, Saskatchewan, this 28 th day of July, 2011. _________________________________________ M.T. Gordon, J