THE MINISTER OF SOCIAL DEVELOPMENT, Applicant, – v. –, 2023 NBKB 141

FDM-557-2022 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF MONCTON Date: August 10, 2023 Neutral Citation: 2023 NBKB 141 BETWEEN: THE MINISTER OF SOCIAL DEVELOPMENT, Applicant, – and – J.G., E.R.G. and N.M., Respondents. DECISION BEFORE: Madam Justice Marie-Claude Bélanger-Richard AT: Moncton, N.B. DATES OF HEARING: January 23, 24, 25, 27 and 30, March 28 and 30, May 8, 9 and 10, 2023 DATE OF DECISION: August 10, 2023 APPEARANCES: Johanne Theriault Paulin for the Applicant Annik M. Ouellette for the Respondent J.G. Jules César Katagurutse for the Respondent E.R.G. Dustin Caissie for the Respondent N.M. Stephen D. Diamond as Counsel for the children

Summary: Guardianship – Allegations of various abuse – Statements made by children BÉLANGER-RICHARD, J.: INTRODUCTION [ 1 ] In the context of a child protection matter, I must ultimately decide which plan is in the best interests of the children A. and El., i.e., either a guardianship order sought by the Minister of Social Development or the return of the children to their biological father N.M.

[ 2 ] A. is 3 years old and El. is 4 years old. They have two siblings, D. (7 years old) and E. (8 years old). The Respondent J.G. is the biological mother of all four children. The Respondent E.R.G. (“E.R.”) is the biological father of D. and E. and stood in loco parentis for A. and El. The Respondent N.M. (“N.M.”) is the biological father of A. and El. and stood in loco parentis for D. and E.

During most of the relevant time period, the three Respondents lived together. [ 3 ] The current proceedings began with the apprehension of D. in February 2022 and the filing of an application for a guardianship order by the Minister. After D. made some alarming statements in September 2022, his siblings E., A. and El. were apprehended. The Minister then filed another application for a guardianship order for the other three siblings. Both applications were consolidated in November 2022. [ 4 ] A 5-day final hearing began in January 2023.

At the beginning of the hearing, all Respondents consented to a guardianship order for D. and E., and I so ordered. I also ordered, with the agreement of the parties, that a right of access for the children D. and E. be reserved with their biological father E.R. and this right of access is to be exercised in the best interests of the children subject to the Minister’s or adoptive parents’ approval. [ 5 ] Throughout the hearing, the three Respondents remained opposed to a guardianship order for A. and El.

However, during the process of filing post-hearing briefs, I was informed that E.R. no longer opposed a guardianship order for A. and El. [ 6 ] As a result, only the biological parents of A. and El. now oppose the Minister’s application for a guardianship order, and they both present a common position, i.e., they want the children A. and El. to be returned to their biological father N.M. [ 7 ] The paramount consideration in determining a guardianship application is the best interests of the children.

It is through that lens that I must determine whether the children A. and El. should be returned to their biological father N.M., or remain in the care, custody and control of the Minister, with all parental rights and responsibilities with respect to these two children permanently transferred to the Minister. ISSUES [ 8 ] The present matter raises the following issues:

a) what order is in the best interests of the children A. and El.?

b) if a guardianship order is granted, should a right of access be reserved to the children A. and El.? FIRST ISSUE – BEST INTERESTS OF THE CHILDREN [ 9 ] The ultimate and fundamental consideration for the Court in determining whether to grant a guardianship order is the best interests of the children (see section 53(2) of the Family Services Act ).

Section 1 of the Act provides a definition of “best interests of the child” and gives a list of factors to consider: “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 throughthe achievement of his full potential according to his individual capacity; and (

g) the child’s cultural and religious heritage; [10] The factors listed under para. (

b) and (

g) are not relevant to this matter because no evidence was presented in that regard. I willtherefore address each of the other factors in turn while analyzing and weighing the relevant evidence received in this proceeding. (

a) the mental, emotional and physical health of the children and their need for appropriate care or treatment, or both; [11] While these proceedings concern the children A. and El., the care and treatment that their parents demonstrated towards the otherchildren D. and E. provide some relevant information on their ability to care for A. and El. although it is not determinative as such. In C.(V.). v.

New Brunswick (Minister of Social Development), 2015 NBCA 28, at paragraph 22, Justice Quigg reiterated the relativesignificance of using past parenting evidence: 22 In New Brunswick (Minister of Health and Community Services) v. A.R. (1998), (NB CA), 198 N.B.R. (2d)201, [1998] N.B.J. No. 142 (C.A.) (QL), this Court stated: I am of the opinion that the appellants' argument on the relevance of the testimony in previous cases is without merit.

This Court has inthe past held that this type of evidence is of relative importance although, as a general rule, it should not be determinative as such (seeNew Brunswick (Minister of Health and Community Services) v. M.R. and A.R. (supra). In the case at bar, there is sufficient evidence ofa relationship between previous testimony on the one hand and parenting skills and the best interests of the children at the criticalmoment, i.e., the time of trial on the other.

In light of this evidence, I adopt in essence, Boisvert, J.'s comments when he stated that "[i]tis absolutely unreasonable to conclude that a court can determine the parenting skills of the [appellants] without considering thebackground of their family...". [para. 20] [12] Similarly, in J.S. and J.N. v. Minister of Social Development, 2018 NBCA 26, Justice Baird approved of the use of historicalevidence and commented as follows: 52 As observed, with the passage of time, the Minister filed updated affidavits which offered current information concerning thisfamily. I see nothing wrong with this practice.

In fact, pursuant to s. 9 of the Act, the affidavits of social workers and service providerswere filed in support of the Minister's application for a custody order. This was historical information which may, or may not have been,relevant at the time of the final hearing; however, it was part of the narrative. The circumstances of the appellants and the child changedover time. Concerns that were raised in 2013 may not have been relevant in 2016.

As an example, concerns relating to baby formulawould not be relevant to the care of C.S. today; however, as I have observed, some of the behaviours that triggered a response by theMinister in 2013, were still evident in 2016. The historical evidence in this case was relevant. A child's future should not be determinedbased on a snapshot of his or her life; rather, it should include the historical overview of his or her situation, from the point in time whenthe state takes the decision to intervene, up to and including the date of the hearing. [13] Furthermore, in Children’s Aid Society of Simcoe (County) v.

S., [2001] O.J. No. 1380, Justice Olah commented that the pastparenting evidence was a useful background to assess the changes, if any, made by the parents to their behaviour or circumstances. Atparagraphs 9 to 11, he wrote as follows: 9 The real relevance of "past parenting" evidence is the extent to which it provides a reliable backdrop against which to measure theextent to which the parents' abilities and circumstances have changed (Children's Aid Society of Waterloo (Regional Municipality) v. C.(R.), (ON CJ), [1994] O.J. No. 2955, (Ont. Prov. Div.)). 10.

Further, it has been held that the real impact of past conduct under the statute is not the conduct in and of itself, but what the parenthas done to resolve it. See Catholic Children's Aid Society of Metropolitan Toronto v. M. (P.A.), [1988] O.J. No. 3766 (Ont. Prov. Div.).

11. Of course, the reliability of the background evidence is based on the completeness of the particular piece of evidence, the age of theinformation and the extent to which the information contained in the past conduct evidence is supported by the direct observation of aninteraction with the parent whose conduct is impugned. Subject to these caveats, the best indicator of a parent's likely future conduct ishis or her past conduct. This position has received some judicial acceptance. See Children's Aid Society of Peel (Region) v. K. (D.), (ON CJ), [1991] O.J. No. 159 (Ont. Prov.

Div.) where the court states: In the uncertain and unscientific world of making predictions about harm to children, there is probably no more compelling evidence ofrisk than harm that has befallen other children in the same parent's care. [14] Because of its relative relevance, I will therefore summarize the historical evidence I received about E. and D. Historical evidence [15] E. was born in December 2014. At the time, the mother and E.R. lived together.

E. was apprehended by the Minister when shewas less than four months old in April 2015 because of concerns of domestic violence, mental health issues regarding both parents andlack of support. Under various orders, E. was in the care of the Minister for approximately 20 months. D. was taken into protective careat birth (February 2016) and remained in the care of the Minister for approximately 10 months. [16] Following a trial, the Court refused to grant a guardianship order to the Minister regarding E. and D.

After a 3-month custodyorder, the children E. and D. were returned to their parents under a 6-month supervisory order. When the supervisory order expired inApril 2017, the Minister closed her file. According to the Minister’s records, the mother was, at the time, still struggling with parenting,day-to-day care and child development, but she had appropriate support in place. The mother and E.R. had separated but the motherintended to resume her relationship with him. [17] Sometime in 2017, the mother and N.M. began a romantic relationship. El. was born in May 2019 and A. was born in May2020.

At some point, E.R. came to live with them. When the Minister became involved again with the family, the three Respondentswere all living under the same roof with the four children. [18] In 2019, the Department was apprised of concerns pertaining to the mother’s care regarding D. Physical abuse was suspecteddue to the presence of bruises. The mother and E.R. alleged that D. was hitting himself.

The Department also discovered that the motherwas using inappropriate methods of discipline, including limiting D.’s food intake. [19] From April to July 2019, Ellen MacNeil offered parenting classes to the parents twice a week. She testified that the three parentswere often present for the parenting classes. Ms. MacNeil mentioned that parenting classes are usually designed to offer positiveparenting techniques, positive routine and positive discipline. With the Respondents, Ms. MacNeill however had to focus on having theminteract with the children, do activities with them, and praise them.

She commented the parents listened to her but she did not see themusing the techniques that she had showed to them. Ms. MacNeil saw E. often yelling demands and pushing D., which situation causedMs. MacNeil to prompt the parents that this behaviour was unacceptable. Ms. MacNeil rarely saw physical affection or positive praisetowards the children. On one occasion, Ms. MacNeil brought 6 Timbits for the children and saw the mother give 1 Timbit to D. and 5Timbits to E. Ms. MacNeil removed the Timbits and explained to the mother that the Timbits had to be shared equally.

Overall, Ms.MacNeil did not see the parents making any progress on their parenting abilities. [20] In 2019, the mother missed many medical appointments for D. During that period (2019-2020), Dr. Jennie Morrison (D.’spediatrician) called the Department several times to report various concerns she had following appointments with D. and his mother. However, during a re-assessment period, Dr. Morrison indicated that D.’s weight had improved and she no longer had concerns.

Because of some visible improvement in the interactions between the mother and D., the Department therefore decided to close the filein February 2021. [21] In November 2021, the Department received various reports concerning D. and E. raising concerns of excessive discipline, fooddeprivation, physical abuse, poor hygiene, and poor school attendance. As most reports concerned D. and the mother was denying theallegations, the Minister took D. into protective care. D. was placed with his maternal grandmother in Nova Scotia under a Safety Planagreed upon by all parties.

[ 22 ] At the beginning, the mother was willing to work with the Department and to have D. seen by his family doctor, pediatrician, and dietician, and to have D. in counselling. However, the mother wanted D. to return home within a week or two while services would be implemented. By late January 2022, the Department concluded that the mother was no longer in agreement with the plan in place and decided to bring back D. to New Brunswick and to have him placed in a foster home.

Consequently, D. stayed with her grandmother from late December 2021 until February 2022, and he was then placed with foster mother Nancy LeBlanc. The Minister filed an application seeking a guardianship order for D. [ 23 ] From February to September 2022, various services were implemented by the Department for D. and his parents: supervised visits, parenting classes and counselling.

Considering the proximity in time with the events concerning El. and A., the parents’ participation to these services must be considered in my assessment of their parenting abilities and the care given to the children. [ 24 ] Supervised visits between D. and his parents were scheduled once a week for two hours. Between March and August 2022, the mother and/or E.R. attended only 5 of the 20 scheduled visits. Although the parents cancelled a few visits for reasons of work or sickness, their overall attendance was inconsistent and poor.

Nancy LeBlanc (D.’s foster mother) reported that D. became angrier and acted out when visits were cancelled. Lori Ann Trevors (a family support worker who supervised the visits) commented that D. was visibly disappointed when his parents did not show up for a visit. During the visits, Ms. Trevors observed that D. appeared more comfortable with his father E.R. She noted that E.R. was calm in the way he spoke and disciplined D.

On the other hand, the mother was aggressive and loud when she spoke to D., causing D. to bow his head and to appear fearful of her. [ 25 ] From August to October 2022, parenting classes never occurred because of the parents’ failure to attend. Four sessions were scheduled before the decision was made to put the parenting classes on hold because of the parents’ lack of attendance. [ 26 ] For counselling, the Department sent a referral to Sophie Bernard, a clinical therapist with Emotions Reactions Options Solutions Inc. (EROS), for her to assist D. and his parents.

While the mother and E.R. expressed their willingness to engage in counselling services, the mother attended only one session with Ms. Bernard between March and mid-September 2022. E.R. participated in two sessions with Ms. Bernard. Ms. Bernard made multiple attempts to

schedule individual sessions with the mother and E.R. While the parents had, at times, a reason for cancelling a session, there were multiple “no show”. Ms. Bernard was therefore unable to establish any goals for a therapy with the mother and E.R. In mid-September, some information came to the attention of Ms. Bernard. Because of this information, Ms. Bernard declared a conflict of interest regarding the mother and E.R., and she discontinued her services with them. Ms. Bernard however continued to offer counselling to D. [ 27 ] D. attended 24 sessions with Ms. Bernard between April and mid-December 2022. Ms.

Bernard said that the therapy goals with D. were to establish a good rapport and to create a safe place for him to process some of what he had experienced and was still experiencing (trauma) through play. D. initially appeared to have difficulty accepting compliments, had a blank affect, looked sad, and rarely smiled. Also, D. initially appeared overstimulated when exploring the office and toys. Finally, he had difficulty separating from his foster mother; he needed to go see her many times during the session with Ms. Bernard. Ms.

Bernard commented that D. has a short attention span, has difficulty focusing and/or staying on task for more than a minute, and has speech difficulties. [ 28 ] On September 13, 2022, the Department received information from a trustworthy source that one of the children had disclosed intrafamilial sexual abuse. Immediately, a decision was made to apprehend the other three siblings, E., A. and El. The social worker Melissa Daigle contacted the Royal Canadian Mounted Police (RCMP) to report the information and a criminal investigation ensued. Apprehension of the children and services provided [ 29 ] When Ms.

Daigle attended the parents’ home for the children’s apprehension, she was accompanied by a colleague and three RCMP officers. The parents were cooperative but were understandably upset of not being provided with more details about the criminal investigation. In her Affidavit sworn to on September 21, 2022, Ms. Daigle describes the following interactions she had with the parents and the children during the apprehension of the three children: 28. […]

g) While [N.M.] was packing for the children, I asked [E.R.] if the children had anything specific they needed for bedtime (blanket, toy) and what their routine was. [E.R.] said, there was no routing (sic). I asked what time the children went to bed and woke up and [E.R.] could not tell what time they go to bed but said they wake up at 6:00 or 7:00 a.m.;

h) I asked [E.R.] if the children had breakfast that morning and if they had lunch. [E.R.] was staring at me and did not answer. [N.M.]

answered that they had eaten 40 minutes ago; and

i) When leaving the home (around 12:30 p.m.) [A.] and [El.] ([E.] was at school) appeared pale and very tired; they were just sitting in their car seats in the car staring off blankly and rubbing their eyes. […] 30. I went to pick up [E.] at Lou McNarin that same day (September 13 th ) …The following occurred during our time together: a) [E.] and I spoke about my role, and why [D.] was no longer living at home.

I explained that [D.] was no longer safe at home and my job was to work with their mother to make sure that when [D.] returns home, he will be safe, and their mother will not do anything that she had done in the past; and b) [E.] told me they were no longer safe at home since [D.] was no longer living with them. I asked what she meant but she told me she did not know. […] (pp. 37-38 of the Record on Application) [ 30 ] While waiting for a foster home placement, Ms. Daigle noticed that El. and A. had strong body odor and were scratching their heads nonstop. El.’s hands, face, feet, hair, and ears were filthy.

When Ms. Daigle looked through the children’s hair, she saw nits. Ms. Daigle observed that El. and A. seemed overwhelmed when they were showed the toys at the Department’s office. El. and A. stared at the toys and did not seem to know what to do with them. [ 31 ] Upon their apprehension, A. and El. were placed in the foster home of Rachel Geldart. Ms. Geldart was told that the children had lice. She observed the children looked very tired and appeared scared and nervous. She said that A. and El. were withdrawn and not responsive. A. and El. did not seek interactions with other people. [ 32 ] The first night, Ms.

Geldart gave a bath to A. and El., and treated them for head lice. As A. and El. appeared very attached to each other, she decided to put them together in the bath. She observed the children being distraught and terrified throughout the entire process. She stated at para. 7b) of her Affidavit sworn to on January 11, 2023: b) […] [El.] screamed, cried, clawed at me, tried to climb out of the tub numerous times and refused to sit down. [A.] also screamed and cried, flailed her arms and hands, and refused to sit. I spoke calmly and tried to narrate the whole procedure to ease their visible distress.

When it came to washing their bodies, [A.] immediately placed both hands on her vagina to cover it followed by self-stimulating while crying out, “no, no, no”; [ 33 ] Ms. Geldart testified that she has never seen children having this kind of reactions to a bath. The children’s fear towards the bath persisted for approximately two months. Ms. Geldart said that it took a lot of praise and rewards for the bath time to become tolerable for A. and El. There is still regression at times, but their reactions are not that extreme anymore. [ 34 ] Ms.

Geldart also observed that initially, during diaper changes, A. “often would be visibly shaking, would have sweaty, clammy hands and would chew on her tongue” (para. 7c) of her Affidavit). She testified that A. had some anxiety and nervousness with diaper changes, and clearly, she did not like them. It took approximately two months for her diaper change behaviour to change. [ 35 ] Ms. Geldart commented that at first, home routine was a struggle for the children. A. wanted to sleep a lot and El. did not want to go to bed.

For the first three weeks after his arrival, any mention of bedtime sent El. into an inconsolable state of crying. He would cry for two hours. Now, El. seems to understand that bedtime is safe and a welcomed routine. [ 36 ] Also, when El. and A. arrived at her home, neither child smiled, laughed, or sought interaction from adults. Ms. Geldart testified that A. said only 2 or 3 words upon her arrival. While El. used a little more words, it was mostly unintelligible. In November 2022, Ms.

Geldart shared with the social worker Melissa Daigle that she had concerns about the children’s development because they were both

behind in their speech, El. was behind in his motor skills, and both children did not always understand small commands. [ 37 ] However, since November 2022, Ms. Geldart has seen both children smiling, laughing, seeking her attention, telling her about their day and seeking affection. In November 2022, A. and El. began attending daycare and they seem to enjoy going to the daycare. Their speech has improved but there is still a speech problem. [ 38 ] Ms. Geldart commented that A. is very dependent on El. El. is very parental to A. and often tells her what to do.

For example, A. would refuse to eat if El. did not tell her that it was good and that she should eat. Ms. Geldart also noted that neither of them seemed to know how to use utensils when they arrived. [ 39 ] In the course of these proceedings, Robert Doucet, a licensed psychologist, did a psychological parental capacity assessment. He met with the parents and the children, and he observed the interactions between the children and N.M. during a visit. In his report dated December 28, 2022, Mr. Doucet stated the following on the children’s needs and their behaviour as observed by Ms.

Geldart: Visit to [El.]’s and [A.]’s foster home [El.] is a young boy who shows an important language delay which makes him difficult to understand at times. He is 3 ½ and is certainly not school or pre-school ready. The parents have not been consistent in seeking intervention for [El.] concerning his speech delay. This young boy would most likely need to be assessed regarding overall developmental delay. As mentioned above [El.] showed an extreme emotional reaction to taking a bath as reported by the foster mom.

He is only now beginning to have more normalized behaviours around bathing. [A.] also showed extreme emotional reactions to taking a bath. Both children had concerning behaviours surrounding food. Analysis and recommendations […] Apart from the criminal investigation into the sexual abuse allegations, there are multiple reports from different service providers of elements of abuse and neglect within this family and from the report and observations of the children, it appears quite clear that no child has been spared from what I consider to be a rather week parenting approach to all four children.

From using or withholding food as a disciplinary measure, physically hitting of the children or pulling hair and intimidation of the children are some of the reported experiences that the children have either been talking about or have shown extreme behaviours. Point in reference is the reports by the foster mother of the two youngest children’s reactions to taking a bath. It was quite significant to hear this foster mother’s recount of those experiences and how in her ten years of fostering, she has never witnessed such severe emotional reactions by both [El.] and [A.] to taking a bath.

The reactions were so extreme as reported that I consider that some very inappropriate methods of getting the children to take their baths were used at home and that the children experienced trauma around this whole situation of taking their bath.

Other examples in both foster homes include the children’s response to having food which was more of a hoarding type of behaviour when food was presented to them […] In essence, much of the evidence suggests that these children were exposed over time to harsh and punishing disciplinary measures by the parents and consequently their normal development has been interfered with causing behaviours described as unusual and/or dramatic as compared to what we might expect from more normal childhood behaviors.

While in foster care and exposed to similar experiences while residing with their parents, such as bath time or receiving food, their reactions mimic what they would have shown at home which at the very least is quite concerning and clearly shows a long standing pattern of abuse and neglect . The children have more recently began to show more normalized behaviour adding support that environment played a major role in their expressed behaviours. [ 40 ] As mentioned before, parenting classes were put on hold in September 2022.

In October 2022, the Department asked again Ellen MacNeil to offer parenting classes to the parents. Ms. MacNeil began to go to the parents’ home every Monday. From October 2022 to late January 2023, the parents opened their door to Ms. MacNeil only three times. For one class, the three parents were present; for

another class, only the mother attended; finally, for the third class, the two fathers were present, and the mother joined them after she woke up. [ 41 ] Considering the limited number of sessions she had with the parents, Ms. MacNeil commented that they did not really start to do anything. She testified that during the sessions, the parents kept talking about the Department, the allegations of sexual abuse and the fact that the children E. and D. were lying. [ 42 ] In February 2023, El. and A. saw their family doctor. El. was referred to Occupational Therapy because his head is small.

Both children were referred to a pediatrician and speech language services. [ 43 ] In February 2023, Ms. Geldart reported to Ms. Daigle that she was observing regression in El. and A.’s behaviors. Bath time was still an issue at times. A. and El. would ask to touch the water and would cry not to go in the water. A. was more emotional and needed to wear pull-ups again despite having been potty trained. Both children complained of belly aches after visits and had diarrhea. A. slapped other children in the foster home and spit at daycare. Ms.

Geldart had also seen concerning behaviours such as El. and A. humping each other, El. touching A.’s private part and A. trying to do the same. Considering these concerns, Ms. Daigle decided to reduce the number of visits with the parents and to seek therapy for El. and A. At the time of the hearing, a therapist had been retained, but she had not yet met the children. [ 44 ] In March 2023, Ms. Geldart brought El. to the dentist because his teeth were discolored. After seeing the dentist, Ms. Geldard was advised that El. had an abscess, cavities and rotten teeth.

El. was given antibiotics and was referred to a pediatric dentist for further treatment. The parent’s care of the children [ 45 ] As mentioned earlier, the mother, E.R. and N.M. lived together at the time of the children’s apprehension in September 2022. In her Affidavit sworn to on October 7, 2022, the mother stated that she and N.M. were engaged. [ 46 ] In his Affidavit sworn to on January 18, 2023, N.M. stated that the mother controlled everything at home, and he followed her guidelines. He understood that the mother’s control was a problem and he wanted to be a better parent.

Knowing that one of the Minister’s concerns was his failure to protect the children, he admitted that his “only mistake was not interfering as [he] should have.” (para. 23). [ 47 ] Sometime in January 2023 and before the beginning of the final hearing, the mother moved out of the family home. In his Affidavit sworn to on January 18, 2023, N.M. said that he was no longer in a relationship with the mother, and the mother had moved out a few weeks ago. However, at the hearing, N.M. testified that he and the mother broke up only two days before the hearing that started on January 23, 2023.

The breakup lasted two weeks. [ 48 ] N.M. admitted that he reconciled with the mother in early February 2023 despite the fact that he is well aware of the control and influence she has over him. The two fathers N.M. and E.R. told Ms. MacNeil (who saw them for parenting classes in early 2023) that they were now doing family meetings with the mother to discuss things together (as opposed to being told what to do by the mother), Ms.

MacNeil observed that they did not make this statement in the presence of the mother, and she saw the two fathers still following the mother’s directives. [ 49 ] At the hearing, N.M. testified that he broke up again with the mother on April 2, 2023, and he moved out of the family home on April 3, 2023, to go live with his parents. He said that he left because this was probably his best option to have the children. Despite the alleged breakup, he candidly admitted that he was still in a relationship with the mother, and they talk over the phone.

N.M. testified that he would agree not to have any contacts with the mother “if the judge decides that” or “if it deems necessary”. [ 50 ] In support of their son’s position, N.M.’s parents testified at the hearing. Before their apprehension, the paternal grandparents were seeing El. and A. once a week or every two weeks. Neither of the grandparents saw any signs of abuse but noticed that the children were dirty at times. R.M. (the paternal grandmother) often gave a bath to A. and testified that A. would scream occasionally in the tub.

She did not notice El.’s speech delay and the children having behavioral issues with food.

[ 51 ] In her Affidavit sworn to on January 18, 2023, R.M. however made the following observations about the family household before the apprehension of the children: 6. I notice that [the mother] was controlling in the relationship and [N.M.] did not know how to properly handle it. She was running the household, letting the children do whatever they wanted and gave no structure. The children would stay up late and would go to bed when they were tired, sometimes staying up until 1:30 am.

Their physical and mental health was struggling. [ 52 ] R.M. believes that her son N.M. has all the necessary parenting skills to take care of El. and A. on his own. However, R.M. confirmed at the hearing that N.M. and the mother are still together. R.M. testified that the mother takes all the decisions for N.M. and E.R., and N.M. follows what the mother tells him to do. K.M. (the paternal grandfather) testified that as long as N.M. is not alone with the children, things will be OK. He explained that he is not concerned with N.M.’s parenting skills, but with the mother’s influence over N.M.

K.M. said that he will make sure that the mother does not come close to the children. [ 53 ] N.M. obtained a degree in Child and Youth Care with Addictions and he then worked as a support worker in a daycare center. His employment was terminated when the child with whom he was working left the facility. N.M. testified that he offered help and counselling to the child regarding behaviours and coping skills. While N.M. said that he would like to work again as a support worker, he has been a security guard for over a year, and he enjoys his work.

The mother is also a security guard, and she works at the same place than N.M. [ 54 ] N.M. testified that El. and A. have always demonstrated love and happiness in his care. He said that he can exercise discipline over the children by talking to them at their level. He claimed to have a good routine with the children when they were home. However, N.M. admitted that E.R. was the primary caregiver of El. and A. because E.R. stayed home while he (N.M.) and the mother worked. [ 55 ] N.M. recognized that it happened a few times that the children were upset and had issues when it was bath time.

He then “started testing the water” and he followed some suggestions given to him by Ms. MacNeil. N.M. admitted that he saw A. soothing herself in the bath and he redirected her to play with the water. He never mentioned this to anyone. [ 56 ] N.M. did not notice that D. was malnourished and disagreed that D. was being singled out for punishment. He was however aware that D. has a speech delay but he never brought him to therapy for this issue. N.M. testified that he did not notice that El. showed any developmental delays. N.M. said that he never hit the children.

He finally denied having been present when the children were abused in the home. Although he admitted in his affidavit that he should have intervened more, he however does not admit that the children were abused. [ 57 ] At the hearing, the mother decided not to testify. The only evidence from her is her Affidavit sworn to on October 7, 2022. In her Affidavit, the mother denies any abuse towards the children, and she does not understand this constant involvement of the Department with her family.

The mother denies the historical evidence and claims that she had support from friends and family, that there were no physical arguments with E.R., that she went to Mental Health Services to appease the Department, that E. missed school because of Covid-19, that the children’s food portions were limited because they were on a tight budget (also denying that she starved D.) and that the children always had clean clothes. [ 58 ] Regarding El. and A., the mother said that they were bathed every other day at minimal and they “were in middle of lice treatment when they got picked up”.

She claimed that they were still developing their speech skills and did not recognize any issues with their development. [ 59 ] I will address in more detail later in this decision some of the statements made by D. and E. in the course of these proceedings. Suffice it to say at this point that with respect to E.’s statements, the mother alleged in her affidavit that E. “has a history of compulsive lying”, “tends to lie”, “lies to get attention”, “is fishing for information to fabricate more stories" and “has a history of bullying [D.]”.

In other words, the mother refuses to acknowledge any concerns about what E. revealed in the course of these proceedings. Overall, the mother claims that she is able to meet all the children’s needs. Conclusion on factor (a) [ 60 ] In my opinion, the three parents (the mother, N.M. and E.R.) did not provide and are unable to provide adequate care to their children.

[ 61 ] When D. was taken into protective care, he was malnourished, had poor hygiene, had speech difficulties, and had poor attendance at school. He felt insecure and rarely smiled. Despite the time given to the parents to take advantage from the services offered by the Department and being told about the Minister’s concerns, they did not attend the parenting classes and never acknowledged their flaws.

Therefore, I am convinced that an unfortunate cycle of mistreatment continued at the parents’ home considering the evidence that emerged after the apprehension of the three other children in September 2022. [ 62 ] When El. and A. were apprehended, they were dirty and had lice. They did not smile, laugh, interact with other people, or seek affection. They did not have a routine. Like D., the children El. and A. have speech difficulties, but the parents were not showing any concerns about the situation and had not done any inquiries to address the situation.

El. was only 3 years old and his teeth were in a deplorable condition. In my opinion, the parents were totally oblivious to their children’s needs. All of this is evidence of neglect by the parents. [ 63 ] Upon being apprehended, El. and A. showed disturbing behaviours for mundane tasks like taking a bath, going to bed or changing diaper. In my opinion, the children’s reactions and behaviours are strong indicators that they suffered some trauma under the care of their parents.

As the psychologist Robert Doucet said, it “clearly shows a long standing pattern of abuse and neglect”. [ 64 ] Instead of working on themselves and seeking to improve, the mother and N.M. have denied any issues or problems regarding the children. N.M. admitted being under the control and influence of the mother. He made some progress in January 2023 by admitting the situation and saying that he should have intervened more. N.M., however, decided to reconcile with the mother without addressing the control issue.

The evidence I heard is conclusive that N.M. is still under the control and influence of the mother whether or not they live under the same roof. N.M. is not ready to cut all ties with the mother unless there is an Order of the Court.

In these circumstances, there would be a risk for the children to again suffer abuse and neglect under the care of the mother and N.M. or under the care of N.M. only. [ 65 ] Finally, the mother and N.M. want me to believe that they are able to look after the youngest children El. and A., but I cannot ignore the fact that they consented before me to a guardianship order for the two oldest children D. and E. None of the parents provided an explanation as to why they were consenting to a guardianship order for D. and E.

While I accept that parents can change and demonstrate their ability to take care of their children, the parents’ consent to a guardianship order for their oldest children is contemporaneous to the Minister’s request for a guardianship order for the two youngest children. There is no passage of time or an explanation from the parents that may justify me to give little weight to this consent. In my opinion, the parents’ consent to a guardianship order for D. and E. speaks volume as to their parenting abilities to care for their children El. and A.

At a minimum, this is an admission that they struggle with the care to give to their children and with their parenting skills. (

b) the effect upon the children of any disruption of the children’s sense of continuity [ 66 ] Since their apprehension, El. and A. have been living in a stable environment. The Department ensured that the children were brought to their family doctor and to the dentist considering their serious health issues such as speech delay and rotten teeth. The children’s sexualized behaviour will be addressed by some therapy. There is no question that the Minister has provided continuity of care and a safe environment for El. and A. since their apprehension.

Although El. and A. have shown, at times, some regression, there have been significant positive progress in their behaviors. They now smile, laugh, interact with others and show affection. [ 67 ] El. was 3 years old and A. was 2 years old when they were apprehended. They were living with their mother, their father N.M., and E.R. Following the children’s apprehension in September 2022, no visit was allowed between the parents and the children due to an ongoing criminal investigation.

In early October, the children El. and A. were allowed to visit their father N.M., and then, in mid- November 2022, the visits with the two fathers were allowed. In mid-January, the mother was also allowed to participate to the visits. Overall, N.M. and the mother’s attendance to the visits was poor. [ 68 ] The visits were an opportunity for N.M. and the mother to provide some continuity in the care of their children.

While the children expressed happiness in seeing their father N.M. and there were some positive observations during the visits, there were still issues regarding the interactions between the parents and the children. Also, the visits caused regression in the children’s behaviors and have had a negative impact on the children. [ 69 ] Furthermore, it is unclear what the family environment would be if the children were returned to their father N.M. and whether it would be different from what they had before the apprehension. N.M. apparently broke up with the mother and lives with his parents.

He however says that he is still in a relationship with the mother. According to N.M., E.R. was the primary caregiver for the children and E.R. consented to a guardianship order for El. and A. The mother did not testify at the hearing or provide updated affidavit evidence to clarify her intentions as to her relationship with N.M. and E.R.

Conclusion on factor (b) [ 70 ] I therefore conclude that the children have benefited of stability, continuity and safe environment since they have been in the care of the Minister. The visits with the parents have caused regression instead of positive improvement. In my opinion, returning the children to N.M. would prove to be very disruptive to the children because I am not convinced that N.M. can offer a safe, stable and healthy environment for them at this time. (

c) love, affection and ties that exist between the children and their parents and between siblings [ 71 ] I have no doubt that the mother and N.M. love their children El. and A. The children have shown signs of affection towards their father during the visits and they were excited to see their mother. However, as stated by Justice Quigg in New Brunswick (Minister of Social Development) v.

B.(G.) , 2012 NBCA 62 , at paragraph 36 : Although love and affection are important criteria to consider when assessing the best interests of the child, they are not to supersede the other factors enumerated in the definition of best interests of the child. In this case, the mother’s inability to put her child first in her life, her lack of capacity to parent and the instability of her living accommodations undermine the mutual love and affection that exists. [ 72 ] In New Brunswick (Minister of Social Development) v.

C.(N.) , 2016 CarswellNB 271 , Justice Petrie also commented on this factor and stated at paragraph 131: I have no doubt that N.C. loves her children. However, being an appropriate or “good enough” parent is more than loving your child. There is also the serious responsibility of ensuring that the children are properly taken care of. It is not a standard of perfection but one of a reasonably acceptable level. [ 73 ] Supervised visits were part of the services offered by the Minister to this family.

While I admit it is far from perfect, supervised visits allow the parents and the children to maintain their ties and affection. Because their interactions are observed and noted, the visits provide information on the participants’ behaviors, emotions and reactions to various situations. Attendance to the visits is also documented to gauge the interest and efforts the parents demonstrate regarding this service, and to evaluate the children’s reactions to the parents’ attendance or lack of attendance to the visits. A parent may have good reasons not to attend a visit.

However, if lack of attendance or poor attendance emerges as a pattern, this may justify a conclusion of lack of interest and efforts on the part of a parent in maintaining a relationship with his or her child. [ 74 ] In the present matter, there was no supervised visits following the children’s apprehension in September 2022 because of an ongoing criminal investigation. In October 2022, the Department allowed supervised visits between N.M. and his children A. and El.

Between October 7 and November 18, 2022, there were six scheduled visits and N.M. attended only one visit. [ 75 ] In mid-November 2022, the RCMP advised the Department that supervised visits between the children and the two fathers could occur. A

schedule of visits was prepared providing for one visit on every Monday supervised by Co-Aide and two visits, Tuesday and Thursday, supervised by Human Services Counsellors from the Department. I note that on Tuesdays, only the children A. and El. were in attendance. On Thursdays, D. and E. were supposed to join their siblings to the visit but they never came. [ 76 ] From November 18, 2022, to January 9, 2023, there were six scheduled visits to be supervised by Co-Aide and N.M. attended only one visit. [ 77 ] As to the visits supervised by Human Services Counsellor, Haillie Wilson supervised 14 visits. Ms.

Wilson testified that the visits took place at the parents’ home from November 2022 to mid-January 2023. When the mother was allowed to have visits with the children around mid-January 2023, the visits were moved to the Department’s office. The mother began visits with the children on January 31, 2023. [ 78 ] At the first visit in November 2022, Ms. Wilson observed the children A. and El. to be very excited and there were good interactions between the children and the fathers. Ms. Wilson mentioned that the mother had left gifts for the children. [ 79 ] Ms.

Wilson testified that the visits at home were busy because the children were moving around. She observed that throughout

the visits, the children snacked very frequently. They did activities such as coloring and play pretend, but they also watched lot of TV. She raised the issue with N.M. and noticed a change in that regard at the next visit. She testified that N.M. appeared open to her suggestions when she provided parenting support. [ 80 ] Overall, the visits with the fathers went well and everybody appeared happy. Ms. Wilson commented that the children were excited at every visit and as soon as they arrived, they looked for candies. The children hugged N.M. and N.M.’s interactions were appropriate.

When they had to leave, the children found it difficult, but Ms. Wilson was not sure if they really wanted to stay. When the TV was on, it made the departure more difficult. [ 81 ] The mother did not have any supervised visits or contacts with the children from September 2022 to January 31, 2023. On January 31, 2023, A. and El. seemed confused to see their mother and stood frozen before appearing excited to see her. From February to mid-April 2023, the mother missed some visits with the children.

When the mother attended the visit, she kept encouraging the children to eat snacks that she had brought for them even though the children expressed not wanting to eat. Ms. Wilson also noted that El. hit his mother or spit when the mother tickled him. The mother did not redirect El. to an appropriate behaviour. On March 2, 2023, only the mother attended the visit. Ms. Wilson said that the visit was chaotic and the mother struggled to handle the children. [ 82 ] Although the children seem happy to go to the visits with their father, Ms.

Geldart observed that there was regression regarding bath time and eating when these visits began and again, when the visits were moved from the family home to the Department office. She also testified that the children are more withdrawn after a visit. Ms. Geldart also noticed that there is a strong bond between El. and A. Conclusion on factor (c) [ 83 ] El. and A. are very attached to one another. The visits demonstrate that there is love and affection between the parents and the children. However, N.M. and the mother have not always consistently attended the visits.

Also, the children have shown regression following the visits. I therefore conclude that although there is affection between the parents and the children, this is not enough. Other factors undermine this love and affection. (

d) the need to provide a secure environment [ 84 ] A substantial amount of the evidence in support of the Minister’s position consists of statements made by the children D. and E. to third parties (foster mother, social workers, therapists, police officer and assessor). The children’s statements were reported in several affidavits and during testimonies at the hearing. The Respondents objected to the admissibility of these out-of-court statements made by the children.

Instead of doing a voir dire each time that a child’s statement was being mentioned during the hearing, all counsel agreed that the objection would be put on the record and submissions would be made at the end of the hearing on the issue of the admissibility of the children’s statements. [ 85 ] Before outlining the legal principles regarding the admissibility of children’s out-of-court statements, it is important to describe the children and the context in which they made their statements.

The challenged out-of-court statements have been made by either D. or E. [ 86 ] At the time of making her out-of-court statements, E. was 7 years old. According to Robert Doucet (who prepared a psychological parenting capacity assessment and interviewed D. and E.), E. is an intelligent young girl. E. had no difficulty to tell Mr. Doucet about her experiences of abuse at home. She showed no hesitation or ambivalence in that regard. E. was also described by her foster mother as a controlling and bossy child.

Timothy Stocker (the RCMP officer who conducted the forensic joint interview during a criminal investigation) found that E. could be assertive when she speaks, and she even sounded and acted like an adult during the interview. However, and more recently, E. has shown vulnerability, e.g., when she began acknowledging extreme discipline measures used by her parents at home. She also demonstrated vulnerability when she agreed to submit to a physical examination by a SANE nurse. [ 87 ] With regard to D., all witnesses who spoke about D. testified that he has a speech impediment.

He is very difficult to understand and he may become frustrated when he is unable to communicate what he wants. When D. made his out-of-court statements, he was 6 years old. He was also described as being withdrawn and unwilling to interact with people. [ 88 ] According to Mr. Doucet, the children’s normal development has been interfered because of what they experienced at their

family home. Upon their arrival at the foster home, their behaviours were quite concerning. The fact that they now live in a safe andcaring environment has begun to show more normalized behaviours for the children. LAW AND ANALYSIS [89] Out-of-court statements made by children are hearsay and are not admissible unless the statements fall under one of theexceptions at common law or are admitted pursuant to the principled approach. [90] The common law recognizes an exception to hearsay when a child’s statement is tendered into evidence to show a child’s state ofmind (the “state of mind” exception).

As explained by the authors in Evidence in Family Law at page 4-28: To be admissible, the child must be stating his or her contemporaneous “state of mind”, e.g. “I like two sleeps, I don’t like three”. Thisexception cannot be used to admit statements of past acts or events, e.g. “On my last sleep at Dad’s, he slept with his girlfriend on thecouch”. [91] The following statement made by Justice Zuker in Catholic Children’s Aid Society of Toronto v.

H. (L.D.), 2008 ONCJ 783, atpara. 168, is also useful to understand the “state of mind” exception when considering a child’s views and preferences: The state of mind exception is particularly relevant when considering children’s views and preferences. If a child maintains that she doesnot want unsupervised access to her mother because her mother has hit her and yells at her all the time, the evidence is relevant to provethe child’s fear, not the hitting or the yelling.

It is not necessary to provide the truth of the statement; whatever her reasons, the child isafraid of being alone with her mother and that is relevant to the determination of the child’s best interest. [92] As stated earlier, children’s statements may also be admitted into evidence under the principled approach. In Minister of SocialDevelopment at al. v.

J.L. and J.R., 2022 NBQB 84, Justice Bourque explained the requirements for the admissibility of children’sstatements under the principled approach: 20 Out of court statements made by a child can be admitted as an exception to the hearsay rule, using the principled approach whichrequires the establishment of necessity and reliability. This long-established approach was articulate by the Supreme Court of Canada inR. v. Khan, (SCC), [1990] 2 S.C.R. 531. The Supreme Court revisited the principled approach to hearsay in R. v.Khelawon, 2006 SCC 57 noting that the requirements of necessity and reliability are related.

Charon J, stated at paragraph 49: The broader spectrum of interests encompassed in trial fairness is reflected in the twin principles of necessity and reliability. Thecriterion of necessity is founded on society’s interest in getting at the truth. Because it is not always possible to meet the optimal test ofcontemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justiceto consider whether it should nonetheless be admitted in its hearsay form. The criterion of reliability is about ensuring the integrity of thetrial process.

The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from thedifficulty of testing it. - Necessity 21 The first criterion for the admissibility of hearsay statements of children is necessity. The Supreme Court in R. v. Khan, supra, heldthat “necessary” for the purpose of admitting out of court statements, means the evidence is “reasonably necessary”. The Court gave theexample of a child who is considered incompetent to testify or where there is sound evidence by an expert that testifying in court wouldbe traumatic or otherwise harm the child.

In these two examples, the child would be unable to testify thus making the admission of theout of court statement necessary. 22 Since the decision in R. v. Khan, supra, there have been a number of courts who have found a child’s statement reasonably necessarywithout requiring expert testimony on the issue of trauma or other adverse consequences to the child testifying at trial (see: R. v.Ngoddy, 2015 ONCJ 783, CAS Ottawa v. L.L., (ONSC) and CAS v. C.L.,

(2018) ONSC 1241 ). […]

- Reliability 26 In addition to being necessary, an out of court statement made by a child must also be reliable in order for it to be admissible. In therecent Ontario decision of Y.M.S. v. R.O.S., 2021 ONSC 6684, Justice Doi summarized the reliability requirement at paragraphs 34 and35 of his decision which I find helpful. He wrote: The requirement for threshold reliability asks whether the child’s hearsay statement is sufficiently reliable to be admitted into evidence:Bradshaw at para 24; Khelawon at para 49; G.S. at para 12.

Threshold reliability requires a consideration of all relevant factorssurrounding the statement, such as the timing of the hearsay statement, the demeanour of the witness that is testifying, the child’spersonality, intelligence and understanding, and the absence of any reason to expect fabrication, which are non-exhaustive factors: Y. atpara 134; Khelawon at para 51; Khan at para 30.

The court must be satisfied that the statement was accurately and objectively reported,and that the child was not manipulated, coerced or pressured into making the statement: Ward at para 15; Children’s Aid Society ofMetropolitan Toronto v. M.(R.), [1992] O.J. No 1097(CJ) at paras 15-16. The court should also consider whether the witness that isgiving evidence to provide the out-of-court statement has a vested interest in the outcome of the case; Ward at para 17.

A hearsay statement is admissible if substantive reliability is established, namely that the statement is inherently trustworthy given theconditions when it was made and any corroborating evidence: Bradshaw at para 30; Khelawon at paras 4, 62 and 94-100; G.S. at para16. 27 I am also instructed by the following comments of Fisher, J., as she then was, in D.A.M. v.

D.M.T., 2013 BCSC 359 at paragraph24: Reliability for the purpose of admissibility, or threshold reliability, is aimed at identifying circumstances where the inability to test thehearsay evidence is sufficiently overcome to justify receiving it as an exception to the general exclusionary rule. This requirement maybe met by showing that sufficient trust can be put in the truth and accuracy of the statement because of the way in which it came about, orby showing that in the circumstances the judge will be able to sufficiently assess its worth.

The presence of corroborating or conflictingevidence may also be considered: see R.v. Khan, R. v. Khelawon, 2006 SCC 57 . 28 Several elements which may point to reliability were established in R. v. Khan, supra, and the subsequent cases which have appliedKhan.

The non-exhaustive list of these elements includes: • The intelligence and understanding of the child • The absence of motive to fabricate • The absence of motive or bias of the person reporting the statement • The spontaneity of the child’s statement • The absence of suggestion, manipulation or coaching of the child • The child’s statement is consistent over time • The child’s statement is corroborated by other evidence 29 Not all the above indicia have to be established to perfection in order for the child’s statement to be admissible.

The variouselements identified will go to the weight I ultimately attribute to each of the statements (see: Children’s Aid Society of Toronto v. G.S.[2018] O.J. No. 1022). First factor: Necessity [93] As stated above, a child’s statement must be “reasonably necessary”. This is the first requirement.

In other words, if a child isincompetent to testify or unable to testify, the admission of a child’s out-of-court statement becomes necessary. [94] In considering the invocation of emotional trauma to demonstrate the child’s inability to testify, the Supreme Court stated in R. v.Rockey, (SCC) at paragraph 28 as follows: The argument for the appellant on trauma suggested that only the most severe trauma could justify a conclusion of necessity. Irespectfully disagree. Mere discomfort is insufficient to establish necessity. But where there is evidence, as here, that an already

traumatized child might be further traumatized by being questioned by strange men in a strange situation, that suffices. The Court is not required to wait for proof of actual harm to the child. [Emphasis added.] [ 95 ] Courts sometimes accept that the “necessity” test has been established without evidence where the children are young (see J.H.G. v. S.L.G. , 2019 NBQB 22 ). [ 96 ] In the present matter, I am satisfied that D. and E. are too young to testify in open court in the presence of their parents or even with some accommodation.

I am convinced they would be traumatized by such an experience, and it would have a negative impact on their sense of security and safety, which is still in its infancy. As a result of their inability to testify and the fact that their out-of-court statements are necessary for this Court to assess what is in the best interests of their siblings, I conclude that the criterion of necessity has been met. Second factor: Reliability [ 97 ] As to the second requirement, several factors of reliability are present regarding the children’s statements.

They are: - the children made similar statements to different people (foster mother Nancy LeBlanc, counsellor Sophie Bernard, and the assessor Mr.

Doucet), including Constable Stocker and social worker Melissa Daigle who have skill and experience in interviewing a child; - the children’s statements were spontaneous and did not appear to be coerced or influenced save and except when E. lied and she later admitted doing so to protect her mother; - the children’s statements regarding harsh measures of discipline and the food restrictions have been consistent over time; - there is no evidence of any motive for the children to fabricate; - each of the witnesses who testified as to the children’s statements was credible and had no stake in the outcome of the matter; - the children’s statements are corroborated by their behaviours. [ 98 ] Considering the circumstances in which the children made their statements, I find that these statements are inherently and sufficiently trustworthy to be admissible as threshold reliability has been met. [ 99 ] Although the children E. and D. made many statements, I will retain and consider only the following statements to decide their ultimate reliability: 1- Statement made by D. that his mother made him eat her vagina: This statement was made spontaneously to the foster mother Nancy LeBlanc on September 12, 2012.

After viewing a video about body safety and the importance of telling an adult you trust if something happens and staying focused during the whole video, D. told his counsellor, Sophie Bernard, that he liked the video. At the next session with Ms. Bernard, the following happened as reported by Ms. Bernard: The following session (October 13 th – about 10 minutes in, he (D.) wanted to cook something for “aunty” (Ms.

LeBlanc) in my play oven and he suddenly stopped and said “Mom ate Gina” -then repeated it over and over in different ways and added: “She made me to her!” and “That’s disgusting, we don’t eat private parts!” with a serious/confused affect. He said “I told Aunty” – Told him he did the right thing to tell an adult. Thanked him for telling me, that this was not okay, that I am here for him if he needs to talk about it, that it is not his fault.

I asked him to show me on a figurine representing mom while we were playing when he meant by “Gina” he pointed between the woman’s legs and said “it was right here” (at her vagina). Explored further and due to his difficulties with speech, I was able to understand he said something along the lines of it happening one time, at the park, there was only mom there, mom was wearing only underwear and he kept saying “soak and wet”. It was hard to understand what else he was saying but he said it was wet “from other thing” then he said “But her is nice now”.

(page 128 of Record on Application) In the course of doing a psychological parenting capacity report, the psychologist Robert Doucet met with D. and D. made the same statement to him spontaneously. 2- Foster mother Nancy LeBlanc reported that D. would tell the other children in her home that if they were not listening, they will not have food. Ms. Bernard testified that at least seven times during the sessions, D. brought out food as a punishment.

E. told the psychologist Robert Doucet that the withholding of food was part of the disciplinary measures in her family household. 3- During the second forensic interview in November 2022, E. told Constable Stocker that her mother hit all four children but mostly D. In a separate interview, D. told Constable Stocker that his mother hit him hard.

On January 30, 2023, E. also told her therapist, Jessica Lanteigne (who have been seeing E. since December 2022) that “they were all mean, they all hit me” and D. referring to her mother, father E.R. and step-father N.M., adding that they also hit her other siblings (see Exhibit 4). During her interview with the psychologist Robert Doucet, E. again mentioned the physical and aggressive discipline used by her mother and E.R. and said that this discipline was also used for El. and A. E. told Mr.

Doucet that N.M. also used this form of discipline with the children. [ 100 ] Upon D.’s apprehension, social worker Melissa Daigle described D.’s behaviours regarding food to the mother and E.R. She asked them an explanation as to why D. was hungry, obsessed with food and not gaining weight while under their care. She also asked them if the children had access to the fridge and cupboards at their leisure. The mother answered no to this last inquiry, explaining that everyone was on a

schedule and had a portion they were permitted to eat. The mother added that she had received conflicting information about a feeding

schedule (how many meals and snacks) by her pediatrician and the previous social worker. The mother then blamed HeadStart, a daycare center, for putting too much food on the table and allowing the children to eat whatever they wanted. She mentioned that E. was hiding food, which caused Ms. Daigle to comment that this was not normal behaviour and could be a sign of trauma. When Ms. Daigle told the mother that in the past, she had admitted to starving D., the mother said she was willing to admit having starved D. in the past but it was no longer the case.

In her Affidavit sworn to on October 7, 2022, the mother denied that she had starved D. [ 101 ] Considering all the evidence I heard and received, I am of the opinion that the above statements made by the children are ultimately reliable because they were made to different people at different times, they were consistent over time, the statements were corroborated by the children’s behaviors and the witnesses who reported these statements were credible and had no stake in the proceeding. I realize that D. has a speech impediment and is difficult to understand.

However, I am satisfied that he repeated the same allegation of sexual abuse at different people who all understood the same thing and he also pointed between a figurine’s legs to confirm what he was saying. Conclusion on factor (d) [ 102 ] A child requires a secure environment to grow, develop and achieve his or her full potential. Parents must ensure to provide a secure environment for a child to feel safe and protected. The statements made by D. and E. demonstrate that they were not safe at home as excessive discipline was used and they were deprived of food as a form of punishment.

The evidence also reveals that D. would have been subject to some form of sexual abuse. Considering El. and A.’s reactions to bath time and diaper changes, I believe that they have also been affected by some form of abuse. [ 103 ] Overall, I must conclude that the family household was not a secure environment for the children. The mother and N.M. have consistently denied any form of abuse or excessive discipline towards the children, and consequently, I am convinced that they would not change their attitude and behaviours to ensure a safe environment for their children. (

e) the merits of the Minister’s plan in comparison with the merits of the children returning under the care of N.M. [ 104 ] The Minister seeks a guardianship order for the children El. and A. If such order is granted, the Minister plans to provide a stable and permanent home to the children where their physical, emotional, educational, recreational, social, cultural and religious needs will be met. The Minister intends to explore a permanent placement or an adoption for El. and A. [ 105 ] The mother and N.M. seek the return of the children under the care of N.M. Since April 2023, N.M. lives with his parents.

He plans to stay there until he feels comfortable to be a father on his own and the Department agrees with that. His mother, R.M., however testified that the plan is for N.M. to stay with them for two months and they will help him find an apartment. She said that if he stays longer, they will charge him a rent.

[ 106 ] N.M.’s parents live in a 2-bedroom bungalow. R.M. explained that the children would sleep in the same room with their father. There is no bed yet for the children, but R.M. said that they will take the bunkbed that is presently at the mother’s home. N.M.’s parents are both working on a full-time basis. [ 107 ] According to R.M., N.M. works long hours and does overtime. N.M. testified that he works 12-hour shifts on Friday, Saturday and Sunday. N.M.’s parents testified about the support that they are willing to offer to their son and grandchildren.

R.M. said that they can help N.M. with the care of the children such as transporting them to daycare. They can also help him financially although N.M.’s father admitted that they had not made any budget for daycare and therapy. [ 108 ] N.M. testified that he wants to continue his therapy to become a better father. I note that after counsellor Sophie Bernard declared a conflict of interest, the mother and E.R. were referred on October 4, 2022, to Jane Vankampen, another clinical therapist employed by EROS. One month later, N.M. was also referred to Ms. Vankampen for individual counselling. Ms.

Vankampen mentioned that the referral for services for the mother and E.R. stated concerns of physical abuse, food deprivation, and verbal abuse with their son D. As to N.M., the referral stated concerns about failure to intervene regarding food deprivation, physical and sexual abuse and confinement as well as concerns about his involvement in the alleged physical abuse of the children. [ 109 ] Between October and late December 2022, the mother attended 2 individual sessions out of 14 possible sessions with Ms. Vankampen.

While the mother identified psychoeducation on anger and working on anger management strategies as short-term goals for therapy, Ms. Vankampen was unable to clarify or solidify long-term goals due to the limited number of sessions attended by the mother. Similarly, Ms. Vankampen could not clarify or solidify any goals with N.M. as he only attended 1 session out of 6 possible sessions between November and late December 2022. Because of the sessions the mother and N.M. attended, Ms. Vankampen was unable to do any interventions.

She however mentioned that during her second session, the mother had begun to engage but no reportable progress was made as the mother stopped attending her sessions. [ 110 ] N.M. testified that he would keep the children away from their mother if it was needed. R.M. said the same thing. R.M. however admitted that when the mother yelled at the children, she took no action because “she is the mother and I could not overstep”.

Conclusion on factor (e) [ 111 ] I am satisfied that the plan proposed by the Minister will provide a safe, stable and loving environment for the children El. and A. and all their needs will be met. [ 112 ] As to the plan of returning the children to the care of N.M., I am convinced that the children would be at risk of being again neglected and abused. While N.M.’s parents have good intentions and wish to help, it is evident that they could not prevent their son to move out and go living with the mother if the children were returned to N.M.

N.M. has not put an end to his relationship with the mother and as he testified, he moved out of the mother’s home simply because he thought it was his best option to have the children returned to him. It is evident that his plan of living with his parents is temporary, and I believe that he will move back with the mother as soon as a decision is made in this matter. [ 113 ] N.M. denies that the children were abused or neglected. He wants to become a better father, but he does not admit his flaws and has had poor attendance to therapy sessions.

N.M. said that he would keep the children away from the mother but only if there was an order or if it was necessary. It is evident to me that N.M. is still influenced and controlled by the mother. The mother decided not to testify despite the serious allegations against her. If the children were returned to N.M., I am convinced that N.M. would fail to protect the children from the mother’s abuse. [ 114 ] Therefore, the plan proposed by the Minister is in the best interests of the children.

CONCLUSION ON ISSUE #1 [ 115 ] Considering the conclusions I reached regarding each relevant factor, I am satisfied that the granting of a guardianship order to the Minister is in the best interests of the children El. and A. I wish to add that even though I decided to rely on some of the children’s

statements, the rest of the evidence was sufficient to convince me that the children were not safe with their parents, that the parents lackparenting skills, and that the parents were unable to fulfil the children’s needs considering their behaviours and the plan they put forwardin this matter. SECOND ISSUE – POST-GUARDIANSHIP ACCESS [116] Recently, our Court of Appeal in Minister of Social Development v. V.L.C. et al., 2023 NBCA 12, took the time to reiterate thelegal test applicable to a determination of post-guardianship access as follows: 22 In D.S. and A.C. v.

The Minister of Social Development, 2021 NBCA 25, [2021] N.B.J. No. 128 (QL), this Court, like other courts inthe country, noted that "access is not the right of the parent; it is the right of their child" (para. 62). In the context of post-guardianship access, the Court drew the following principles from the reasons of Gonthier, J., rendering judgment for the Supreme Courtin New Brunswick (Minister of Health and Community Services) v. L. (M.), (SCC), [1998] 2 S.C.R. 534, [1998] S.C.J.No. 52 (QL): The Supreme Court confirmed that access is the exception, and not the rule, in this context.

Gonthier J. quoted from this Court'sreasoning in M.A.G., Re., where Hoyt J.A. (as he then was) concluded that it is only in rare situations that access would be ordered. Thefollowing principles emerge from Gonthier J.'s decision: a. There is no inconsistency in principle between a guardianship order and an access order; b. While a liberal

interpretation of the Act is appropriate, the best interests of the child are the primary consideration and the preservationof family ties is subordinate (para. 46); c. If adoption is more important for the ongoing welfare of a child, and it would be jeopardized if a right of access were exercised, accessshould not be granted; d. In considering whether to preserve a child's right of access with his or her parents, a judge is required to weigh the various componentsof the best interests of the child. Evidence concerning how access has historically been exercised becomes particularly relevant; and e.

Access should not be granted if it would have a negative effect on the physical or psychological health of the child (para. 51). [117] In the present matter, the Minister opposes a right of access for the children with their parents. [118] After considering all the evidence, I fail to see any benefit for the children to retain access with their parents and I do not considerthat it would be in their best interests to do so. The mother and N.M. have not shown consistency in attending visits. The children haverecently regressed because of these visits.

I acknowledge that there is love and affection between the children and their parents. However,I do not consider that this situation is exceptional to the point of warranting post-guardianship access. [119] Therefore, I am satisfied that a post-guardianship access is not in the best interests of the children A. and EI. DISPOSITION [120] Therefore, I make an order transferring from the Respondents to the Minister on a permanent basis the guardianship of thechildren El. and A., including the custody, care and control of, and all parental rights and responsibilities with respect to, the children.

No post-guardianship access is granted.

DATED at Moncton, New Brunswick, this 10 th day of August 2023. __________________________________________ Justice Marie-Claude Bélanger-Richard Court of King’s Bench of New Brunswick