Mi’kmaw Family and Children’s Services of Nova Scotia v. AK, 2023 NSSC 113

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Mi’kmaw Family and Children’s Services of Nova Scotia v. AK, 2023 NSSC 113 Date: 20230331 Docket: FBWCFSA 121590 Registry: Bridgewater Between: Mi’kmaw Family and Children’s Services of Nova Scotia Applicant v. AK Respondent Judge: The Honourable Justice Aleta C.

Cromwell Heard: November 28, 2022, in Bridgewater, Nova Scotia Written Decision: March 31, 2023 Counsel: Katelyn Morton, counsel for the Applicant, Mi’kmaw Family and Children’s Services of Nova Scotia Noel Fellows, counsel for the Respondent, AK Restriction on Publication: Restriction on Publication Pursuant to subsection 94(1) of the Children and Family Services Act , S.N.S. 1990, c. 5 , there is a ban on disclosing information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or a relative of the child.

By the Court: Introduction [ 1 ] This decision concerns one child, AEMK, born April *, 2021, now almost two years of age. She is the child, of the Respondent mother, AK.

The father of the child, NK passed away on June 17, 2022 and was removed as a named Respondent in this proceeding. [ 2 ] The child is a Mi’kmaw child and the Mi’kmaw Family and Children’s Services of Nova Scotia (the “Agency”) has been involved since her birth given the history of child protection involvement related to the child’s four older siblings, now in the permanent care and custody of the Agency. [ 3 ] This proceeding was commenced following the birth of AEMK and ran concurrently with the proceeding related to the four older siblings. [ 4 ] The proceeding related to the four older siblings was decided by Judge Marci Lin Melvin on March 28, 2022.

The decision is reported at Mi’kmaw Family and Children’s Services of Nova Scotia v. A.K. , 2022 NSFC 2. [ 5 ] The Agency has made application seeking an order placing AEMK in the permanent care and custody of the Applicant. [ 6 ] AK seeks the return of the child to her care and custody and termination of the proceeding. [ 7 ] This matter is before the court for a Review Hearing. [ 8 ] As was done in the proceeding related to the four older siblings, the parties have agreed to file all evidence by consent and have waived cross-examination.

Written briefs were filed by counsel for the parties and no oral submissions were heard by agreement. [ 9 ] Further, the evidence from the previous five proceedings relating to the child’s four older siblings was admitted by consent of the parties and forms part of the evidence for consideration pursuant to s. 96(1) (

a) of the Children and Family Services Act, SNS, 1990,

c. 5 , as amended (the “ CFSA ” ). Issues [ 10 ] The issues which I must decide are: a. Does the child remain a child in need of protective services? b. Is it in the best interests of the child to be placed in the permanent care and custody of the Agency or be returned to the care of the Respondent, AK?

Procedural History and Background Procedural History [ 11 ] The child, AEMK was taken into care by the Agency following her birth due to the ongoing child protection concerns relating to the Respondent, her partner, NK and their four children. [ 12 ] The initial Interim Hearing was held on April 9, 2021, and completed following a contested Interim Hearing held on May 3, 2021 continuing the placement of AEMK in the interim care and custody of the Agency. [ 13 ] The finding that AEMK was in need of protective services pursuant to s. 22(2) paragraphs (

b) and (

g) of the CFSA was made on October 4, 2021 . [ 14 ] The Agency sought an order, supported by the Agency Plan for the Child’s Care dated December 8, 2021, placing AEMK in the permanent care and custody of the Applicant.

At the time, both Respondents, contested the plan of the Applicant. [ 15 ] A contested Disposition Hearing was commenced pro forma on December 21, 2021, set to resume on February 22 and 23, 2022 but not completed until October 24, 2022 due to delays related to the final decision regarding the four older siblings provided March 28, 2022, the sudden passing of NK in June 2022, and the re-scheduled settlement conference from June 2022 to October 24, 2022. [ 16 ] This Review Hearing was held on November 28, 2022 with all evidence submitted by consent, including the evidence related to the five previous child protection proceedings, waiver of cross-examination and written briefs filed. [ 17 ] Throughout this proceeding the Agency has provided notice to Acadia First Nation as required by

An Act respecting First Nations, Inuit, Metis, children, youth and families, S.C. 2019, c. 24 ( FNIM ) and as required by the CFSA . The Acadia First Nation has not participated in this proceeding although they have been consulted by the Agency from time to time. Background [ 18 ] Child protection authorities were involved with NK between 2004 and 2014 related to sexual assault; physical assault; substance abuse; and emotional harm caused by AK’s interactions with NK’s young child. [ 19 ] The parents were in an on again off again relationship between 2010 and February 2022.

Their children were born in January 2015, June 2016, July 2017, July 2018 and AEMK was born in April 2021. [ 20 ] The parties’ relationship was marked by various instances of domestic violence. The four older children were regularly exposed to their parents’ unhealthy and dysfunctional relationship and lifestyle. [ 21 ] The four older children, when not in care of the Agency or placed with other extended family members as a result of the Agency intervention, lived primarily with the mother and father, except when they would briefly separate.

At those times, the children were left to be cared by AK, resulting in unfit living conditions. [ 22 ] The Agency initially became involved with the family beginning in January 2015 shortly after they had their first child together related to concerns of domestic violence and AK’s mental health struggles. [ 23 ] Between January 2015 and March 2022, the four older children continued to be exposed to their parents’ toxic relationship, conflict and physical neglect resulting in significant negative impacts to the four older children including ongoing emotional development and attachment issues, aggression, sexualized behaviours and trauma. [ 24 ] On October 5, 2016, the Agency began the first of five child protection proceedings related to the four older children.

As noted, the five previous child protection proceedings ended with the four older children being placed in the permanent care and custody of the Agency on March 28, 2022. [ 25 ] Throughout the previous Agency involvement, there were repeated concerns and referrals related to: a. Unfit living conditions and cleanliness of the home, in part due to the number of animals kept by AK; b. Inadequate supervision of the older children; c. Ongoing domestic violence witnessed by the older children; d. Physical neglect;

e. Inadequate parenting skills; f. Excessive discipline; and g. Risk of emotional harm/abuse. [ 26 ] On November 23, 2021, the Agency held a Risk Management Conference during which the Agency determined that the child, AEMK remained in need of protective services because of continued parenting issues and an order for permanent care and custody would be sought.

Evidence History of Child Protection Involvement – Previous five Child Protection Proceedings [ 27 ] I do not intend to recite and repeat all of the evidence outlined by the parties in this matter that covers the six child protection proceedings beginning in January 2015 following the birth of the couples first child. [ 28 ] Instead, I will summarize the salient child protection concerns as found in the numerous volumes of s. 96(1) materials filed that began in 2004 with NK and his parenting struggles and continued into 2015 when the parents had the first of their five children. [ 29 ] In doing so, I have followed the guidance from the Ontario Court of Appeal in the case of K.K. v.

M.M., 2022 ONCA 72 at paragraphs 21-23 which states: ...One of the purposes behind the requirement to give reasons is to identify the issues to be resolved and to distill the evidence down to the facts that are relevant to those issues: see generally, R. v. Sheppard,~ 2002 SCC 26 ,~[2002] 1 S.C.R. 869. The wholescale repetition of all the evidence heard does not fulfill that purpose. It does not help the parties who may be unable to understand the central basis for the decision reached. It does not help counsel in terms of their ability to understand and identify possible grounds of appeal.

Finally, it does not help this court which must, among other things, then determine if extraneous facts influenced the trial judge's analysis. [ 30 ] I note that AK largely denies the child protection concerns and suggests the concerns have been previously addressed through the Agency intervention and services and are no longer issues. [ 31 ] My review of the history of child protection involvement begins when the parents had their first child together in January 2015. [ 32 ] The concerns in April 2015, related to domestic violence and AK’s mental health.

Voluntary services through a Voluntary Early Intervention Agreement were provided including counseling; family support work; women’s outreach; and family group conferencing. [ 33 ] In June 2016, their second child was born and the concerns in October 2016, related to physical neglect of the two children including unfit living conditions, cleanliness of the home, firearms not properly or safely stored, and lack of appropriate supervision of the youngest child, only three months of age at the time. [ 34 ] The first child protection proceeding was commenced when the two children were taken into care on October 5, 2016, after a temporary placement with the maternal great-grandmother, was determined to be inappropriate. [ 35 ] Concerns of domestic violence continued and AK moved to the Millbrook Healing Centre and the two children were returned to her care subject to the supervision of the Agency upon conditions including that the parents not reside together and AK not facilitate NK’s access with the children. [ 36 ] Unfortunately, the parents were unable to follow the conditions of the Supervision Order and the two children were placed in the customary care and custody of the paternal aunt in late October, 2016. [ 37 ] In April 2017, the two children were returned to the care of the parents subject to the supervision of the Agency after they participated in services including individual counseling, family support services, women’s and men’s outreach and family group conferencing. [ 38 ] In July 2017, the couples third child was born and the second child protection proceeding was initiated as the parents were not engaging in the case plan and concerns continued regarding the parents ongoing relationship. [ 39 ] On September 25, 2017, both child protection proceedings were terminated in relation to the three children in favour of voluntary services provided under a Voluntary Early Intervention Agreement. [ 40 ] Unfortunately, three days later on September 28, 2017, the RCMP were involved following a domestic violence incident between the parents in the presence of the three children.

NK was charged with Assault and AK was noted to have visible bruising on her face. [ 41 ] The third child protection proceeding was initiated on September 29, 2017 after the three children were taken into care.

The two oldest children were later placed in the customary care and custody of the paternal aunt and the youngest child remained placed in the temporary care and custody of the Agency. [ 42 ] The Agency concerns at that time related to continued domestic violence, physical neglect and parenting abilities of AK and inadequate supervision. [ 43 ] Services included therapy for NK regarding anger management; therapy for AK regarding healthy relationships, stress

management, self-care and attachment; co-parenting therapy; family support to address healthy relationships; and intensive family support work to address parenting deficits. [ 44 ] In May 2018, excessive discipline and punitive approaches regarding parenting of their middle child, not yet two years of age, were concerns noted during supervised access. [ 45 ] The condition of the home had improved although the SPCA was involved to remove six dogs from the home due to mistreatment while cared for by AK and NK. [ 46 ] In July 2018, their fourth child was born and taken into care but subsequently returned to the care of the parents subject to the supervision of the Agency.

The fourth child protection proceeding was initiated due to ongoing concerns, volatility in the relationship and lack of progress with the case plan. Initially, AK refused to work with a family support worker to provide the intensive family support to address parenting deficits but did eventually co-operate. [ 47 ] In August 2018, the placement of the two oldest children with the paternal aunt broke down and they were taken into care of the Agency.

Shortly thereafter, the two youngest children were returned to the care of the parents, subject to the supervision of the Agency. [ 48 ] The Agency, through the family support worker continued to note concerns regarding differential treatment and discipline by AK between the oldest child and the second oldest child during supervised access. [ 49 ] In October 2018, while in the presence of the social worker, with the children present in the home, the parents began to scream, swear and name call at each other. [ 50 ] In December 2018, AK’s therapist indicated she could not continue therapy with her as progress had plateaued after almost three years of involvement, and suggest a different therapist.

This service resumed in May 2019. [ 51 ] In January 2019, following increased participation by the parents in the case plan and services, the two oldest children were returned to the care of the parents, subject to the supervision of the Agency. [ 52 ] The differential treatment of the second oldest child continued to be noted as a concern by the Agency and a therapist was arranged for the parents to discuss behavioural issues and how to address behaviours appropriately, but the service was discontinued by AK. [ 53 ] AK’s knowledge of ages and stages of development was noted as a concern along with her unrealistic expectations of the children. [ 54 ] With the statutory timeline set to expire on the third child protection proceeding in August 2019, the third and fourth child protection proceeding terminated on July 2, 2019, in favour of voluntary services continuing through a Voluntary Early Intervention Agreement.

Services provided during this period included play therapy, individual counseling for AK, couples counseling and family support. [ 55 ] In October 2019, less than four months following the termination of the previous two proceedings, the RCMP made a referral after being called for a report that a four year old child was found alone on the road, dressed only in a diaper. The RCMP noted unsafe and unsanitary conditions in the home. Eight dogs were removed by the SPCA.

AK was in a new relationship at that time. [ 56 ] During the investigation of the referral information, the Minister of Community Services, King’s District Office, became aware that in July 2019, AK was again physically assaulted by NK and she and the children had moved to a new residence. [ 57 ] The Agency also became aware that in September 2019 there were serious concerns noted regarding the lack of appropriate supervision, physical neglect and emotional harm of the four children ranging in age from just over one year of age to not yet four years of age. [ 58 ] By the end of October 2019, a third party supervisor was to support and supervise the parents access to reduce the risk of exposure of the children to continued family violence.

Unfortunately, the parents did not co-operate with this plan and eventually resumed their relationship. [ 59 ] In November 2019, AK was charged with criminal negligence causing death following a head on collision. The RCMP reported drug paraphernalia found inside AK vehicle. [ 60 ] The fifth proceeding was commenced in December 2019 with the four children placed in the customary care and custody of third parties and family members.

The file was transferred from the Minister of Community Services to the Agency in January 2020. [ 61 ] By February 24, 2020, the two middle children were taken into care after their family placement broke down. In August 2020, the second oldest child had to be moved as her placement broke down due to her behaviours and she was placed with her two younger siblings. She was eventually moved to the home of the paternal aunt in June 2021, and then later moved to a Place of Safety and then to a foster placement.

The oldest child was placed with the paternal grandparents in July 2021,in a kinship foster placement but this placement also broke down in the fall of 2021. [ 62 ] Due to the Covid-19 pandemic, in person services and access were suspended between March 2020 and July 2020 and again in April 2021. [ 63 ] Services provided to AK to address the child protection concerns included a Parental Capacity Assessment, a Substance Use Assessment, family support, individual counseling, Women’s Outreach and random drug testing. Initially, AK refused to participate in

random drug testing citing concerns with nurses entering the home during the Covid-19 pandemic but this service began in July 2020. [ 64 ] AK tested positive for cannabis but provided a medical prescription to use cannabis for anxiety. [ 65 ] The Substance Use Assessment dated September 10, 2020 and completed by Ian “Tay” Landry, Clinical Social Worker concluded at page 1 that AK had “substance use disorder, severe (opioids) in sustained remission”. He recommended at page 5 that in order to address AK’s historic substance abuse of opioids, “abstinence from all non-prescribed opioids.

All mood or cognitively altering medications must be used as prescribed”. [ 66 ] In October 2020, the First Nations Clinical Therapist for the two oldest children offered to meet with the parents in the community to work with them to address the children’s behaviours that included aggression and sexualized behaviours to ensure consistency when parenting.

Neither parent followed through and this support was not provided. [ 67 ] Although the parents had improved engagement with services, they continued to demonstrate limited insight into the child protection concerns and their decision making did not prioritize the children’s needs. In November 2020, there were issues noted with the care provided to the children during access at the home. [ 68 ] In November 2020, the Agency suggested implementing some individual access for each parent to gain better insight into their individual parenting abilities, should AK be incarcerated as a result of the criminal charges.

The parents refused to consider parenting separately and separate access was not implemented at that time. [ 69 ] It was noted by the Agency and services providers, including Monique Simonse, Psychologist who completed the Parental Capacity Assessment in December 2020 that AK had “limited insight in how the placement affects the children’s emotional development, how her own behaviour and her interactions with NK impacted her children’s life and involvement with the agency.

She reacted defensive ( sic ) when the situation was discussed and blamed other people for her situation”. (page 5 of the Parental Capacity Assessment dated January 29, 2021). [ 70 ] Further, Ms. Simonse, in follow up correspondence to the Agency on February 19, 2021, noted that “the children may have developed attachment problems and trauma as a result of their placements outside of the family and as a result of witnessing family violence.” Specified parenting supports were recommended but Ms.

Simonse noted that “if similar services had been offered and completed a number of times and no progress is noticed, it is likely that the services offered are not a good match or that the barriers for parents to benefit from the program are too high”. [ 71 ] On March 11, 2021, the Agency made the decision to seek permanent care and custody of the four older children after reviewing the lengthy child protection involvement, the services provided and the parents inability to demonstrate or maintain necessary changes to provide a stable, nurturing and consistent home environment that supports the children’s mental, physical, social and emotional development. [ 72 ] The four older children were placed in the permanent care and custody of the Agency on March 28, 2022, following a contested Review Hearing.

Current Child Protection Proceeding related to AEMK [ 73 ] Following the birth of AEMK, the nursing staff noted concerns regarding co-bedding with a blanket up by the infant’s face; AK leaving the infant on the bed, covered with a blanket while she left the room to have a cigarette with NK asleep in the room; and AK leaving AEMK on her back, she began to regurgitate formula and nursing staff had to intervene to reposition the infant. [ 74 ] Additional concerns were raised during access, when AEMK was returning from access gassy and cranky and AK admitted that she was not burping the baby following feedings as she had fallen asleep.

Concerns were also noted with the support provided to AEMK when holding her. [ 75 ] In mid-April 2021, AK refused to participate in Cognitive Processing Therapy for Trauma as recommended by her therapist and instead wished to continue counseling with Trevor Moores who was providing support only as AK had not participated in previous sessions to address the identified issues.

AK eventually agreed to participate in therapy with another therapist to address trauma, family violence and mental health concerns beginning in mid-June 2021. [ 76 ] AK was initially unwilling to address her trauma through Cognitive Processing Therapy and it was later determined by her therapist not to be the most beneficial tool for AK to process her trauma given the barriers she was facing at the time. [ 77 ] In May 2021, the focus of family support services was on newborn care as the parents had completed all family support programs during previous agency involvement. [ 78 ] In July 2021, the focus shifted to providing hands on parenting instruction to address issues with parenting in the moment. [ 79 ] Throughout June, July and August 2021, concerns continued to be noted including AK feeding AEMK a different formula than prescribed by the Nurse Practitioner for her sensitive digestive system; inadequate supervision of AEMK while AK left to go outside to have a cigarette; ignoring suggestions when AEMK was unsettled, insisting that she be given pain medication for teething; both parents falling asleep while holding the child; continued feeding issues and changing formula against medical advice causing discomfort to AEMK; and continued issues buckling AEMK in her car seat too tightly.

Additionally, issues were noted regarding the number of animals in the home and the unpleasant smells inside the home associated with the numerous animals. [ 80 ] On June 30, 2021, the Agency held a Risk Management Conference and determined that permanency planning for AEMK would begin.

[ 81 ] Family Support services were implemented to provide hands on coaching although AK struggled to accept alternate parenting techniques when suggested. [ 82 ] In September 2021, the Agency noted increased tension and arguments between the parents during access and continued differential treatment of the children by AK continued to be noted as concerning. [ 83 ] In October 2021, some of the parents access with AEMK was separated in an effort to assess each parent’s skills and abilities. [ 84 ] In November 2021, continued concerns arose during access regarding the parents lack of insight and inability to transfer learning to parenting actions during access.

Examples included insisting that AEMK receive solid foods prior to the recommended age of six months and then not feeding her enough solid food during access and an inability to recognize hunger cues even when told by the Access Facilitator that the baby appeared hungry.

In addition, they were mixing pablum with the baby’s milk in her bottle presenting a choking hazard, despite the parents acknowledging being aware of this risk. [ 85 ] On November 23, 2021, the Agency made the decision to seek permanent care and custody of AEMK after noting her sense of time and the Agency belief that the circumstances justifying a request for permanent care and custody are unlikely to change within a reasonably foreseeable time. [ 86 ] Parenting issues continued to be noted throughout December 2021 and January 2022, including AK sleeping during her access visits when AEMK slept and difficulty waking her; warming the bottle in the microwave and then minimizing this as a safety concern; continued inappropriate information sharing regarding access arrangements; not implementing the parenting lessons learned as the parents noted it was too time consuming; and refusing to use correct terminology for genitalia with the children, despite some of the children exhibiting sexualized behaviours. [ 87 ] Arguments between the parents continued along with the differential treatment of the children.

On February 2, 2022, the parents again ended their relationship following an incident of family violence that occurred after a supervised access visit with the children. NK was charged with assault with a weapon (a broom) and a welt and bruise was noted on AK arm. [ 88 ] At the time of separation, AK had to leave the residence as it was Band property and NK was residing there.

AK had twenty animals (rabbits, cats and dogs) that she left and she stayed temporarily with family members and friends. [ 89 ] In March, April and May 2022, AK was distracted with her cellphone and her appearance during her access with AEMK. The Family Support Worker was unable to redirect the conversation to focus on the issues including housing and employment. She was also unwilling to follow the nap and feeding

schedule to ensure consistency for AEMK between the foster home and visits. [ 90 ] In April 2022, AK began a new relationship and has presented a plan together with her new partner to parent AEMK.

She has refused to meet with the Agency Social Worker to discuss her plan, have her residence viewed and have her new partner or anyone else that she may be residing with assessed. [ 91 ] By the end of May 2022, family support services for AK were terminated as she was unwilling to engage, take direction or implement change as recommended by the Family Support Worker. [ 92 ] On June 17, 2022, NK passed away at home. [ 93 ] Barriers in therapy continued for AK including homelessness, poverty and lack of support and she was experiencing severe depressive symptoms in the fall 2022.

Psychotherapy and antidepressant medication was recommended for AK and therapy continued with little progress in addressing AK’s trauma. [ 94 ] AK did not resume family support services or Women’s Outreach services. Legislation and Law [ 95 ] The standard of proof in this proceeding is on a balance of probabilities and the burden rests on the Agency. ( F.H. v. McDougall , 2008 SCC 53 at paragraph 49 and Nova Scotia (Community Services) v. C.K.Z., 2016 NSCA 61 at paragraph 53 ). [ 96 ] Relevant and applicable legislation is the CFSA and the FNIM .

No coordinating agreement with any First Nation in Nova Scotia has been raised, reflecting that there is no Indigenous-based child protection law to be considered. [ 97 ]

Section 4 of the FNIM addresses the interplay between the CFSA and the FNIM as follows: “For greater certainty, nothing in this Act affects the application of a provision of a provincial act or regulation, to the extent that the provision does not conflict with, or is not inconsistent with, the provisions of this Act.” [ 98 ] I am reminded that the paramount consideration under the CFSA is the best interests of children.

The purpose of the CFSA is to protect children from harm, promote the integrity of the family and assure the best interests of children ( s. 2 of the CFSA ). [ 99 ] I have considered the best interest principles as defined in s. 3(2) of the CFSA which is a non-exhaustive list of factors and consider the various factors unique to this child including those associated with the child’s emotional, physical, cultural, and social developmental needs, and those associated with risk of harm and abuse. [ 100 ] Section 10(3) of the FNIM provides factors to be considered when determining the best interests of an Indigenous child: “

(3) To determine the best interests of an Indigenous child, all factors related to the circumstances of the child must be considered, including:

(

a) the child’s cultural, linguistic, religious, and spiritual upbringing and heritage; (

b) child’s need for stability; (

c) the nature and strength of the child’s relationship with his or her parent, the care provider, and any member of his or her family whoplays an important role in his or her life; (

d) the importance to the child of preserving the child’s cultural identity and connections to the language and territory of the Indigenousgroup, community, or people to which the child belongs; (

e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (

f) any plans for the child’s care, including care in accordance with the customs or traditions of the Indigenous group, community, orpeople to which the child belongs; (

g) any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violenceas well as the physical, emotional, and psychological harm or risk of harm to the child; and (

h) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child.” [101] As noted by Justice Marche in Mi’kmaw Family and Children’s Services of Nova Scotia v. RD, 2021 NSSC 66 at paragraphs 31,32 and 34, I must consider the purpose of the FNIM along with certain principles related to the best interest of an Indigenous child: “[31] In my consideration of this case, I must also be mindful of the purpose and principles of FNIM.

The purpose of thislegislation is to affirm the inherent right of self-government, which includes jurisdiction in relation to child and family services, to setnational standards in the provision of child and family services and to contribute to the implementation of the United Nations Declarationon the Rights of Indigenous Peoples (s. 8, FNIM). [32] I must interpret and administer FNIM in accordance with the principles of the best interests of the child, cultural continuity, andsubstantive equality (s. 9, FNIM).

Section 10(1) of FNIM states that the best interests of the child must be a primary consideration in themaking of decisions or taking of actions in the context of the provision of child and family services for Indigenous children.

The bestinterests of the child is the paramount consideration in matters related to child apprehension.” [102] At a Review Hearing under the CFSA, the question is whether the child remains a child in need of protective services and what isin the best interests of the child considering the ultimate timeline available in the proceeding. [103] The Agency relies on the law discussed in Nova Scotia Minister of Community Services) v.

G.R., 2011 NSSC 88 (affirmed bythe Nova Scotia Court of Appeal) that evidence of past parenting may be relevant to assess present circumstances. [104] The CFSA contains statutory time limits for the duration of disposition orders. Section 45(2)(

a) of the CFSA provides “where thecourt has made an order for temporary care and custody, the total period of disposition orders, including any supervision orders, shall notexceed …where the child was under fourteen years of age…twelve months”. [105] I note the first Disposition Hearing was commenced pro forma on December 21, 2021, and was not completed until almost a yearlater on October 24, 2022, when AEMK was already eighteen months of age. The outside date for completion of the proceeding istherefore, October 24, 2023. [106] The

preamble of the CFSA provides, in part, at the 9th Recital: “AND WHEREAS children have a sense of time that is different from that of adults and services provided pursuant to this Act andproceedings taken pursuant to it must respect the child’s sense of time;” [107] In my view, and consistent with the decisions from the Nova Scotia Court of Appeal, the time limits must be read in light of thePreamble, respect for the child’s sense of time and s. 2, the purpose and paramount consideration of the legislation. (Children’s AidSociety and Family Services of Colchester County v.

H.W. et al. (1996) (NS CA), 155 N.S.R. (2d) 334). [108] For a young child such as AEMK, who has been in care for her entire life, I am particularly mindful of the timelines in thisproceeding. [109] Subsections 42(2), 42(3), 42(4) and 46(6) of the CFSA sets out the requirements to be met by the Agency before a Court grants anorder for removal of a child from the custody of a parent. [110] Subsection 42(2) provides: “The court shall not make an order removing the child from the care of a parent or guardian unless the court is satisfied that less intrusivealternatives, including services to promote the integrity of the family pursuant to

Section 13, (

a) Have been attempted and have failed; (

b) Have been refused by the parent or guardian; or (

c) Would be inadequate to protect the child.” [111] The Agency notes the significance of the above-listed subsections as explained by the Nova Scotia Court of Appeal in L.L.P. v.Nova Scotia (Minister of Community Services), 2003 NSCA 1 at paragraph 25 as follows:

“The goal of “services” is not to address the parents’ deficiencies in isolation, but to serve the children’s needs by equipping the parents to fulfill their role in order that the family remain intact.

Any service-based measure intended to preserve or reunite the family unit, must be one which can effect acceptable change within the limited time permitted by the Act. […]” [ 112 ] Subsection 42(3) of the CFSA , requires, the court, before making an order for permanent care and custody to consider possible placement of the child with a relative, neighbour or other member of the child’s community and, where the child is an aboriginal child to consider if it is possible to place the child within the child’s community. [ 113 ] No alternative plan has been proposed by AEMK despite the Agency consistently encouraging the parents to identify long-term, alternate caregivers for AEMK since at least the summer of 2021. [ 114 ] Subsection 42(4) of the CFSA , also requires that a court not make an order for permanent care and custody unless satisfied that the circumstances justifying the order are unlikely to change within a reasonably foreseeable time not exceeding the maximum time limits. [ 115 ] Subsection 46(6) of the CFSA , provides, upon review of an order for temporary care and custody, a further order for temporary care and custody may be made, unless the court is satisfied that the circumstances justifying the earlier order are unlikely to change within a reasonably foreseeable timeline not exceeding the remainder of the applicable maximum time period so that the child can be returned to the parent.

Analysis Does the child remain in need of protective services? Position of the Agency [ 116 ] In the Agency Plan for the Child’s Care dated December 8, 2021, the Agency identifies unfit living conditions; family violence; and parent mental and emotional health as the issues of concern. Family violence, inadequate parenting skills and unfit living conditions were identified as concerns by the Agency in 2016, when the initial child protection proceeding began.

Throughout the years parent mental health and emotional health was added as a concern. [ 117 ] The Agency seeks a finding that AEMK remains a child in need of protective services pursuant to section 22(2) (

b) and (

g) of the CFSA , noting the provision of services to address the child protection concerns and the limited success of those services. [ 118 ] The Agency has noted the services and supports provided to AK since 2015, which have been extensive and unsuccessful in addressing the child protection concerns.

Those services have included individual counseling, anger management and couples counseling with various therapists; family support services, including intensive family support and hands on parenting direction with various family support workers; Women’s Outreach through the Millbrook Healing Centre; Random Drug Testing; Substance Use Assessment; and Parental Capacity Assessment. [ 119 ] The Agency says that AK has been unable to alleviate the identified and ongoing child protection concerns, despite the provision of extensive services and supports since 2015, and as a result, AEMK remains a child in need of protective services.

Position of the Mother [ 120 ] AK says AEMK is no longer in need of protective services and asks that the proceeding be dismissed and the child returned to her care. [ 121 ] I note from the pre-trial brief of AK that it was not suggested that an appropriate outcome would be to continue the proceeding and return the child to AK subject to the supervision of the Agency. [ 122 ] AK suggests not only have the protection concerns been addressed through services but many of the issues related to the father of the children and not her.

She further denies that certain events even occurred and some reported concerns were malicious in nature and simply untrue. What order is in the best interest of the child – PCC or return to AK? Position of the Agency [ 123 ] The Agency seeks an order placing AEMK in the permanent care and custody of the Agency pursuant to s. 42(1) (

f) of the CFSA .

The Agency states that the child should be placed in the permanent care and custody of the Agency because despite years of supports and services, AK has not adequately addressed the child protection concerns. [ 124 ] The Agency reasons for seeking permanent care and custody of AEMK include the Agency’s lengthy involvement with these parents; the supportive services offered multiple times and the parents inability to demonstrate and maintain the necessary insights and changes to provide a stable, nurturing and consistent home environment to support the children’s mental, physical, social and emotional development; the completion of services including family support programming and the parents inability to integrate the learning into their parenting; the parents inability to accept responsibility for the children being in care and the continued deflection of responsibility, the minimization of concerns and denial of the validity of the concerns when raised; and deficiencies in the hands on parenting raising continued child protection concerns despite the supports provided and AK’s inability to take direction when offered during fully supervised access.

Position of the Mother [ 125 ] AK seeks the return of AEMK to her care. AK states that her relationship with NK ended in February 2022, prior to his passing

and family violence is no longer an issue. Further, she suggests that services have addressed the child protection concerns and that no outstanding concerns remain. She is also in a new relationship, since May 2022, which she suggests is supportive and does not involve family violence. She also claims to have the support of family and friends. [ 126 ] Although AK does not believe she will be incarcerated as a result of her criminal conviction for criminal negligence causing death, should she be incarcerated she suggests that her current partner would care for AEMK until her release.

Her partner has indicated his willingness to do so. [ 127 ] AK has presented a plan that includes parenting AEMK with her new partner, who is twenty-three years of age. They currently reside in a rented room in the area. Her new partner does not have children of his own and he suggests that their relationship is healthy with no domestic violence issues. His work status is unknown as is his parenting experiences and abilities.

Decision [ 128 ] Although I have primarily focussed on the evidence from the concurrent child protection proceeding (the fifth proceeding) related to the four older siblings which began in December 2019 and the current proceeding and evidence since AEMK’s birth in April 2021, I have reviewed the entire file including all evidence in relation to the five previous proceedings related to the four older siblings of AEMK. [ 129 ] The evidence suggests that AK has a history of childhood abuse and trauma and she suffered emotional and physical abuse throughout her life, including in her relationship with NK.

She began her relationship with NK when she was only fifteen years of age and NK was twenty-eight years of age. She had her first child with NK when she was only nineteen years of age. [ 130 ] I am certain that AK loves her children. She has fought for their return to her care throughout the years of Agency involvement.

However, it is evident that the parenting provided by the parents to the four older children has caused irreparable and extensive damage to the children as a result of the parents deficits in providing a safe, stable and nurturing home free from domestic violence, instability, abuse and neglect. [ 131 ] AK has consistently attended access with her children over the years and has been attentive and engaged generally during access with AEMK, despite access remaining fully supervised. [ 132 ] AK has addressed some of the protection concerns over the years including addressing the concern related to parent substance abuse through participation in a Substance Use Assessment and Random Drug Testing. [ 133 ] AK again left her abusive relationship in February 2022, following another incident of family violence, which must have been very difficult considering the length of the relationship, the dynamics within that relationship and her housing and employment circumstances at the time.

However, considering the evidence, I am not convinced that she would not have returned to the relationship eventually as she had repeatedly done in the past. She has consistently minimized the protection concerns resulting from her relationship with NK and placed herself and her children at substantial risk of harm and abuse. [ 134 ] I am satisfied on the evidence that services provided by the Applicant would be inadequate to protect the child and have been attempted and failed to address both current and historical protection concerns.

As an example, the parenting support interventions provided over the years through family support services have been unsuccessful in meaningful change in AK’s parenting. Continued parenting issues have arisen even in the fully supervised context of access leading to concerns for AK’s ability to create a safe, stable and nurturing environment for AEMK’s development. [ 135 ] The child protection concerns continue to exist such that AEMK remains in need of protective services pursuant to section 22(2) (

b) and (

g) of the CFSA . [ 136 ] The evidence presented by the Agency is sufficiently clear, convincing and cogent to satisfy the balance of probabilities test that AEMK remains in need of protective services. [ 137 ] In

summary, I find there is a substantial risk that the child will experience emotional abuse if placed in the care of AK and is at substantial risk of physical harm. [ 138 ] The extensive and chronic nature of the child protection concerns support a finding that it is in the best interests of the child to be placed in the permanent care and custody of the Mi’kmaw Agency for three primary reasons. [ 139 ] Firstly, AK has not consistently shown insight.

She has failed to accept responsibility, blamed others for the children’s behaviours, delayed the implementation of services, and demonstrated limited insight into child-centred decision making. This despite years of agency involvement and the provision of services to assist with recognizing and addressing the agency concerns and her parenting deficits.

She has consistently demonstrated a lack of developmentally appropriate parenting and has ongoing struggles to create a safe and healthy environment for her children’s development. [ 140 ] It is hard to imagine what further services may be available to AK that have not previously been attempted and failed to adequately address the child protection concerns.

As an example, family support services and programming has been completed by AK over the years during the previous Agency involvement however, she has been unable to demonstrate or maintain the necessary insights and changes to appropriately parent her children. [ 141 ] Secondly, throughout the current proceeding, AK has consistently indicated that Agency intervention was unnecessary as the referral information leading to the agency involvement was malicious. As a result, AK has struggled to recognize the protection concerns and address those concerns through services.

She has deflected responsibility, minimized concerns or denied the concerns as valid. She has struggled to accept alternate parenting techniques and demonstrated an inability to change and develop alternate parenting strategies.

[ 142 ] Thirdly, AK has demonstrated limited progress during the extensive services provided by the Agency over the last eight years and services ultimately ceased or progress stalled. She claims to know all the information necessary to parent and is able to repeat back what she is supposed to do but she is unable to integrate the learning into her parenting.

Although some improvements were noted over the years, for example the unfit living conditions did improve at times, AK continues to have deficits in her parenting abilities and I am satisfied that she cannot safely or adequately parent AEMK. [ 143 ] I have also considered whether the protection concerns associated with AK can be safely and appropriately mitigated through a further temporary care and custody order or supervision order. I have determined they cannot.

AK has failed to adequately address the numerous protection concerns over the previous eight years of child protection involvement despite the provision of extensive services which she at times participated in but at other times she has rejected those services. [ 144 ] AK has also delayed participation and refused services including those meant to assist her with parenting her children to address their problematic behaviours, attachment styles and traumatic experiences. [ 145 ] The initial Plan of Care filed by the Agency on December 8, 2021 sought an order placing AEMK in the permanent care and custody of the Agency. [ 146 ] Here, the initial Disposition Hearing was commenced pro forma on December 21, 2021 and not completed until October 24, 2022.

The applicable maximum time period pursuant to s. 45(2) (

a) of the CFSA is October 24, 2023. However, as noted by the Agency, had the proceeding strictly followed the statutory timelines, and commenced the initial Disposition Hearing on October 5, 2021, as statutorily required and without the delay in completing the initial Disposition Hearing of over ten months, the overall statutory timeline would have expired on October 5, 2022. [ 147 ] AEMK has been in the care of the Agency her entire life. She is meeting and exceeding her developmental milestones. She has been placed in a culturally appropriate foster home in a First Nations community.

She is almost two years of age. She is vulnerable and has no ability to self-protect. [ 148 ] I am satisfied that AK’s deficits in parenting will not change within a reasonably foreseeable time not exceeding the remainder of the applicable maximum time period and it would be inappropriate and not in the best interests of AEMK to continue the proceeding with a further order of temporary care or supervision order. Conclusion [ 149 ] I find that AEMK remains in need of protective services pursuant to s. 22(2) (

b) and (

g) of the CFSA and it is in the child’s best interests as an Indigenous child, considering the provisions of the CFSA and the NFIM to be placed in the permanent care and custody of the Applicant, the Mi’kmaw Family and Children’s Services of Nova Scotia. Cromwell, J.