Nova Scotia (Community Services) v. D.B., 2016 NSFC 4

FAMILY COURT OF NOVA SCOTIA Citation: Nova Scotia (Community Services) v. D.B., 2016 NSFC 4 Date: 20160212 Docket: FNGCFSA-091684 Registry: Pictou Between: Minister of Community Services Applicant -and- DB and CB Respondents -and- AB and KB by their Guardian ad Litem, Sonya Paris Third Parties -and- CNB and LM Third Parties Restriction on Publication: Pursuant to Section 94(1) of the Children and Family Services Act Judge: The Honourable Associate Chief Judge S.

Raymond Morse Heard: July 7, 9, 10, 17, 21, 23, 24, October 20, 22, 23, 2015 in Pictou, Nova Scotia Written Decision: February 12, 2016 Counsel: Patricia McFadgen, for the Applicant Jennifer Reid, for the Respondent, DB Rob Sutherland, for the Respondent, CB Raymond Kuszelewski, for the Third Parties Tammy MacKenzie, for the Guardian ad Litem TO PUBLISHERS AND OTHER READERS OF THIS CASE: PLEASE TAKE NOTE THAT SECTION 94(1) OF THE CHILDREN AND

FAMILY SERVICES ACT APPLIES AND MAY REQUIRE EDITING OF THIS JUDGMENT OR ITS HEADINGS BEFORE PUBLICATION. SECTION 94(1) PROVIDES: 94(1) No person shall publish or make public 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 ] The Respondents DB and CB (also referred to herein as Mr. and Mrs.

B) are the adoptive parents of AB (DOB January *, 1999), KB (DOB August *, 2001), BB (DOB August *, 2007) and GB (DOB October *, 2008). [ 2 ] The children were the subject of prior protection proceedings involving their biological parents which resulted in orders for permanent care and custody. Only two of the children, KB and BB, are biological siblings. The children were initially placed with the Respondents as foster parents and subsequently adopted by the Respondents. [ 3 ] It is unfortunate and disturbing that these children have experienced so much trauma and turmoil in their lives.

Their adoption by the Respondents was obviously intended to afford the children the opportunity to be members of a loving family, in a safe and secure home environment. This is a fundamental premise of the adoption system currently utilized in Nova Scotia, when a child is placed in the permanent care and custody of the Minister and the long term plan is premised upon adoption placement. [ 4 ] The Minister maintains that the children are in need of protective services due to the Respondents’ use of inappropriate discipline. The Minister’s case relies heavily on the out-of-court statements made by the children.

The Respondents have consistently denied the children’s allegations and maintain that they did not use physical discipline other than infrequent spanking of the two youngest children, utilized, according to the children’s mother DB, as a last resort. [ 5 ] It is the two younger children who are currently the focus of this proceeding. The Minister and the Respondents were able to reach agreement on a consent disposition in relation to the two older children at the outset of trial. [ 6 ] The Third Party CNB is the Respondents’ biological son. The Third Party LM is his spouse.

The Third Parties are supportive of the Respondents’ request that the two children, BB and GB, be returned to their care. However, in the event the court determines that cannot happen, the Third Parties request that the two children be placed in their day-to-day care. [ 7 ] I want to make it clear at the outset of this decision that the paramount consideration in this case is the best interests of the children. The focus of this case is not the religious beliefs or practices of the Respondents. Accordingly, the court has adopted a child- centric approach to determination of this matter.

Proceedings [ 8 ] Pursuant to protection application and notice of hearing dated June 25, 2014 the Minister maintained that the children AB (DOB January *, 1999), KB (DOB August *, 2001), BB (DOB August *, 2007) and GB (DOB October *, 2008) were in need of protective services pursuant to section 22(2), subparagraphs (b), (

g) and (ja). [ 9 ] The initial interim or 5-day hearing was held June 26, 2014 before His Honour Associate Chief Justice Wilson. During the course of that hearing His Honour identified conflict concerns which precluded him from continuing to deal with the matter. At the conclusion of that hearing Judge Wilson made the necessary finding and granted an interim order as requested by the Minister placing the three younger children in the temporary care and custody of the Minister and confirming a supervisory order in relation to the oldest child AB. [ 10 ] The interim hearing was completed on July 17, 2014.

The hearing proceeded on an uncontested basis subject to a reservation of rights in favour of the Respondents. At the conclusion of that hearing the court made the necessary findings and extended the existing temporary care and custody order in relation to the three younger children and approved a continuation of the supervisory order for the oldest child. [ 11 ] A combined prehearing/protection hearing, held on September 2, 2014 proceeded on a consent basis. The protection finding was made subject to a reservation of rights in favour of the respondent parents.

The court granted the Minister’s request for the appointment of Sonya Paris as Guardian ad Litem for AB and KB, the two older children. The matter was then scheduled for combined pretrial and disposition hearing as well as a contested placement hearing. [ 12 ] On November 17, 2014 counsel for the Minister filed the Minister’s application for disposition order and notice of hearing, dated November 17, as well as the agency’s plan for the children’s care dated November 13.

The application confirmed a request for orders for permanent care and custody in relation to the three younger children and a request for dismissal of the protection proceeding in relation to the oldest child AB in favour of an order pursuant to the Maintenance and Custody Act , which would place AB in the care and custody of AP (AB’s adoptive adult sister) and her husband, MP. [ 13 ] A telephone pretrial conference was held November 17. It was agreed by counsel that in light of the Minister’s disposition

application it would no longer be appropriate to proceed with a contested interim placement hearing on November 20 and that the November 20 appearance would now serve as the commencement of a contested disposition hearing. It was agreed that the November 20 hearing would also constitute a further pretrial at which additional dates would be assigned. [ 14 ] On November 20 the court confirmed at the outset that the court was now proceeding with hearing of the Minister’s disposition application and noted that the contested hearing was being commenced in light of the fact that the outside date for completion of disposition hearing, pursuant to

section 41, was December 2, 2014. The court confirmed dates for continuation of the disposition hearing on February 6, 17, 19 and 20 as well as March 3, 5, 6, 17, 19 and 20. The hearing of the disposition application then commenced with the filing of an initial exhibit, the Minister’s plan of care. The hearing was then adjourned by consent for continuation on February 6, 2015.

The court confirmed an extension of the existing order for temporary care and custody for the three younger children, as well as the supervisory order in relation to AB, by way of interim disposition order. [ 15 ] On December 16, 2014 an application and summons was filed on behalf of SV, the biological parent of KB and BB, applying for party status and standing in the protection proceeding pursuant to

section 36. [ 16 ] Subsequently, a separate application was filed on behalf of AP and MP pursuant to the Maintenance and Custody Act with respect to the oldest child AB, requesting leave, and if granted leave, an order for custody under the Maintenance and Custody Act . The application was dated January 16, 2015. In addition MP filed a separate application requesting party status in the protection proceeding. [ 17 ] CNB (the Respondents’ biological son), and his spouse LM, also filed applications requesting party status in the protection proceeding pursuant to

section 36 of the Children and Family Services Act. Both applications were filed January 7, 2015. [ 18 ] On January 21, 2015, DB submitted a letter to the court indicating that she would not be ready for trial because she no longer had legal counsel. Her letter confirmed a request that the dates for trial be rescheduled in order to allow her time to retain counsel. [ 19 ] A pretrial was arranged for January 29. At the outset of the pretrial the court granted leave for DB’s original counsel to withdraw.

The court acknowledged that the existing trial dates could no longer be maintained and that it would be appropriate to adjourn the matter in order to allow DB the opportunity to retain new counsel. The court acknowledged the application for party status as filed by SV and the similar applications filed by CNB and LM. The court scheduled SV’s application for hearing on March 17, 2015. The applications by CNB and LM were scheduled to be heard on March 19, 2015. In assigning these dates the court acknowledged that the dates were being tentatively set without knowing the availability of DB’s new counsel.

The court was advised that MP was withdrawing his

section 36 application but that the Maintenance and Custody Act application as filed by MP and AP, respecting the oldest child AB, would remain. [ 20 ] The dates assigned for hearing of the

section 36 applications subsequently had to be changed to accommodate DB’s new counsel’s availability. SV’s application was rescheduled for April 24 and CNB and LM’s applications were rescheduled for May 1. [ 21 ] A further prehearing was held March 17, 2015. The court confirmed filing deadlines with respect to the

section 36 applications. In addition the court confirmed that the case would now proceed to trial on July 7 and continue on July 9, 10, 16, 17, 21, 23 and 24, 2015. At time of the prehearing, with the consent of counsel for the Respondents, the court granted the Minister’s request for a disposition order pursuant to

section 41 placing the three younger children in the temporary care and custody of the Minister and confirmed a Third Party supervisory order in favour of AP and MP in relation to the oldest child AB. [ 22 ] On April 2, 2015 an application for standing was filed on behalf of SB (the Respondents’ biological daughter). The application was scheduled for initial appearance on April 24, 2015. [ 23 ] Prior to the commencement of SV’s application on April 24 the court dealt with the application by SB and confirmed that her

section 36 application would be heard May 19. The court then proceeded with the hearing of SV’s application. At the conclusion of the hearing the court reserved decision and advised that an oral decision would be provided on May 11, prior to the scheduled hearing of the

section 36 applications on behalf of CNB and LM. [ 24 ] On April 29 counsel for the Minister advised the court that the

section 36 applications on behalf of CNB and LM had been resolved and that the Minister was now consenting to their applications for standing. [ 25 ] On May 11 the court proceeded to render an oral decision confirming dismissal of SV’s application. The court acknowledged that CNB and LM were to be added as Third Parties by consent thereby eliminating the need for hearing of their application. The court noted that SB’s

section 36 application would still proceed as scheduled. The court confirmed the date of June 12 as a further pretrial conference. [ 26 ] Subsequently the court was advised that SB had withdrawn her

section 36 application. [ 27 ] Pursuant to review application and notice of hearing dated June 10, 2015 the Minister requested orders for permanent care and custody with respect to the children KB, BB and GB pursuant to section 46(5)(

c) of the Children and Family Services Act , as well as a termination order in relation to the oldest child, AB. [ 28 ] The notice also confirmed an application pursuant to section 96(3) of the Children and Family Services Act for the admission into evidence of statements made by each of the children. [ 29 ] At a prehearing held June 12 at Truro Justice Centre counsel agreed that the Minister’s application pursuant to section 96(3) would be dealt with at the outset of trial by way of a voir dire.

All parties acknowledged that it would be in the best interests of the children that they not be called as witnesses at trial. It was agreed that the issue for determination by way of voir dire would be the issue of threshold reliability of the statements.

[ 30 ] Immediately prior to commencement of the trial on July 7 the court inquired as to whether or not the Respondents would consent to a termination order and an order for custody in favour of AP and MP in relation to the oldest child AB, under the Maintenance and Custody Act . Counsel for the Respondents confirmed the Respondents’ willingness to proceed on that basis. The court then proceeded to grant the Minister’s request for termination of the disposition order relating to AB. MP confirmed his request for an appropriate order under the Maintenance and Custody Act on behalf of himself and his wife AP.

The court granted leave for the application and then confirmed an order for sole custody in favour of MP and AP based upon the court’s determination that such an order would be in the best interests of the child AB. In granting the order the court acknowledged the consent of the Respondents. [ 31 ] The court then proceeded to confirm the Respondents’ position with respect to the child KB. The Respondent parents confirmed that they were not requesting that KB be returned to their care but they were not prepared to admit that she was in need of protection on the grounds alleged by the Minister.

Counsel for the Guardian ad Litem then suggested that consideration should be given to a possible protection finding based upon subparagraph (

k) of section 22(2). The court adjourned the matter briefly in order to allow counsel the opportunity to seek appropriate instructions from their respective clients. [ 32 ] Following the adjournment counsel for the Respondents confirmed the willingness on the part of DB and CB to consent to a protection finding under section 22(2)(

k) in relation to the child KB and also advised that both parents would consent to an order for permanent care and custody in relation to KB. Counsel for the Third Parties took no position. Counsel for the Minister stipulated that if the Respondents and Third Parties were willing to proceed on that basis it would be subject to a reservation of the Minister’s right to still proceed with presentation of evidence relating to AB and KB in support of the Minister’s application relating to the two younger children.

Counsel for the Respondents and the Third Parties acknowledged the Minister’s position and indicated that they were prepared to proceed on that basis. [ 33 ] The court then proceeded to make the necessary protection finding with respect to KB and granted the Minister’s request for an order for permanent care and custody as consented to by the Respondents. [ 34 ] Prior to commencement of the voir dire counsel requested that the court assign additional dates for trial.

The court confirmed October 20, 22 and 23 as additional dates for trial if required. [ 35 ] The Minister’s application for permanent care and custody in regards to the two younger children, BB and GB, then proceeded with the commencement of the voir dire. The voir dire continued on July 9 and concluded on July 10. On July 17 the court provided a detailed oral decision on the issue of threshold reliability in relation to the children’s statements.

The trial then resumed on July 17 and continued on July 21, 23, 24, October 20, 22 and 23, 2015. [ 36 ] Following submissions by counsel on October 23 the court reserved decision on the understanding that counsel for the Minister, as well as counsel for Mrs. B, would be submitting additional post-hearing briefs. [ 37 ] The Minister’s post-hearing brief was filed November 9, 2015. Jennifer Reid, counsel for Mrs. B, subsequently submitted correspondence, dated November 16, indicating that no further submissions would be made on behalf of Mrs. B. Ms.

Reid did advise that, in the event permanent care was ordered, both parents were requesting continued access with the children however, the parents also acknowledged that the Minister’s plan was premised upon adoption placement for both children, and therefore, in the further alternative, they requested the opportunity for a final visit with both children.

Issues [ 38 ] The primary issue for determination is whether or not the two children who continue to be the subject of the protection proceeding, BB and GB, should be placed in permanent care and custody or returned to the care of the Respondents, DB and CB. [ 39 ] Determination of the first issue will necessarily involve determination of the ultimate reliability of the out-of-court statements of the children as admitted at the conclusion of the voir dire, as well as determination of whether or not the children continue to be in need of protective services. [ 40 ] In the event the court determines that the children are not to be returned to the care of the Respondents the court must then determine whether or not the children should be placed in the care of the Third Parties, CNB and LM, rather than permanent care and custody. [ 41 ] If the court grants the Minister’s request for orders for permanent care and custody then the court will have to determine whether or not the Respondents should nevertheless be permitted to have access with the children.

Review of evidence admitted by way of voir dire [ 42 ] As noted earlier a voir dire was held at the outset of the hearing in order to determine the Minister’s application for admission of out-of-court statements of the children pursuant to section 96(3). [ 43 ] Eight witnesses testified and 14 exhibits were entered during the course of the voir dire.

Neither the Respondents, nor Third Parties, called any witnesses during the voir dire. [ 44 ] Prior to submissions at the conclusion of the voir dire counsel confirmed that they had agreed that all the evidence adduced and admitted by way of voir dire would be admitted as evidence for purposes of trial, subject of course to the court’s decision on the voir dire.

[ 45 ] In an oral decision rendered July 17, 2015 the court acknowledged that the parties had agreed that the sole issue for determination by way of voir dire was the issue of threshold reliability of the children’s statements given the parties’ agreement that it would not be in the best interests of the children to testify. Necessity was therefore admitted.

I acknowledged the clear distinction between the determination of the issues of threshold and ultimate reliability and confirmed that the determination as to ultimate reliability would be made based upon consideration of all of the evidence presented during the trial. [ 46 ] In the paragraphs that follow I have summarized portions of the out-of-court statements made by the children that were determined to be admissible at the conclusion of the voir dire. As indicated this is a

summary and not intended to be comprehensive. [ 47 ] The court confirmed that AB’s video statement of April 1, 2014 would be admitted, subject to specific redactions as confirmed in relation to the transcript entered as exhibit 2. The redacted sections of the transcript and the corresponding segments of the video were confirmed as inadmissible. [ 48 ] During the course of her statement AB described her home life indicating that she and her sister KB were responsible for chores on a consistent basis such as cleaning the kitchen and bathroom.

If the chores were not done to the satisfaction of the Respondents then they would be punished by either being sent to bed early or being required to do extra chores. She confirmed that her younger adoptive siblings, BB and GB were not required to do any chores. [ 49 ] AB indicated that her sister KB got hit all the time. She mentioned one occasion when their father CB hit KB with a broomstick and described another altercation where their mother DB grabbed KB by the back and clawed her in the back and hit her in the head.

AB stated that she was there when her mother clawed KB in the back and that she had watched her father hit KB with the broomstick. AB described her father as having a very bad temper and that when he explodes he yells, screams and curses. AB referred to her sister KB as a pathological liar during the course of her interview. AB also talked about her mother telling her to hit KB so that KB couldn’t say it was one of her parents hitting her and they would be able to say it was just AB and KB fighting.

However she indicated that sometimes her parents’ temper got out of control and they forgot and hit KB themselves. [ 50 ] The three other children; KB, BB and GB were interviewed at the agency on April 2, 2014. The affidavit of Alison MacDonald, sworn June 25, 2014 (exhibit 6, tab 1) at paragraph 26, confirms that BB denied that the children were physically abused and GB did not disclose any information to support AB’s allegations. KB also denied that the allegations made by AB were true. [ 51 ] Exhibit 1 was a documentary brochure including the complete RCMP file and record.

The records within tab B of exhibit 1 include a statement from KB as taken at the agency office on April 2, 2014. In her statement KB indicated that she had never been assaulted by either Respondent and that she had never seen any of her siblings get physically disciplined.

The record also confirms the officer’s observation that KB appeared truthful. [ 52 ] With respect to AB’s second video statement obtained on September 24, 2014 the court determined that it would also be admitted subject to the exclusion of specific portions of the transcript of the interview (exhibit 3) and corresponding portions of the video. [ 53 ] During the second video statement AB again described her home life with the Respondents. Her account was similar to her original statement.

During the course of the second interview AB stated that her brother BB got spanked by the Respondent CB because he peed himself at night. AB stated that BB and GB both got spanked and that KB got hit. AB said that the Respondents would never hit her. Again AB stated that her mother would ask her to hit KB when KB was having a temper tantrum and confirmed that on one occasion her father hit KB with a broomstick.

AB also indicated that GB would be hit with wooden or plastic spoons and that her parents also used what she referred to as a wooden cylinder purchased from Home Hardware, approximately a half inch in diameter, snapped in half, that was called “Mr. Rollie”. AB indicated that the Respondents also had those when their own biological children were young and that’s where the name “Mr. Rollie” had come from. AB indicated that “Mr.

Rollie” was used to discipline GB and that the Respondents would spank GB with it on the bum. [ 54 ] The video statement of BB taken September 24, 2014 and associated transcript (exhibit 4) were also held to be admissible subject to the exclusion/redaction of specific portions of the transcript and associated portions of the video interview. [ 55 ] During his interview BB confirmed that his parents would give spankings. He indicated that a spatula would be used. BB indicated that if he accidentally peed his pants he would be spanked with the spatula.

BB also indicated that a wooden spoon was also used for spanking. BB indicated that brooms were just used for sweeping. BB said that when he was spanked with the wooden spoon or spatula it hurt really bad. [ 56 ] The video statement of GB taken September 24, 2014 was also found to be admissible subject to the exclusion/redaction of certain portions of the transcript and associated portions of the video interview. [ 57 ] During her interview GB indicated that if somebody broke a rule, or got in trouble for doing something they weren’t supposed to, they would be spanked.

When asked how someone would be spanked GB indicated with a stick. She indicated that the spanking would be done by her father and that it hurt. GB testified that neither KB nor AB would be spanked and that when they got in trouble they were sent to their rooms. She indicated that her brother BB got spanked for peeing in the bed.

GB confirmed that KB and AB did chores at home. [ 58 ] The video statement of KB and associated transcript (exhibit 14) were held to be admissible. [ 59 ] During the course of her interview KB described an incident where her mother told her to go to her room and then AB came into the room and started punching and hitting her. KB suggested that her mother had made AB do that. KB also referred to an incident where her father picked up a broom and whammed it into her back. She also described another incident where her mother scratched or clawed her on the back. During her interview KB referred to “Mr.

Rollie” and described it as something that you can get at Home Hardware and that her mother would spank GB with that. She also confirmed that her father would spank BB. KB said that her father never hit her other than the incident with the broomstick. KB maintained that aside from AB it was mostly her mother who hit her and

that her father was usually pretty good. [ 60 ] BB’s statement to Anna Galvin on October 20, 2014, as referred to in Ms. Galvin’s affidavit sworn January 9, 2015 (exhibit 6, tab 11) was admitted. BB’s statement to Anna Galvin on January 26, 2015, as referred to in her affidavit sworn June 10, 2015 (exhibit 7, tab 4), was also held to be admissible. In both statements BB expressed his concern about participating in access visits.

He felt that the Respondents were acting differently during access visits compared to how they behaved at home. [ 61 ] BB’s statements to his foster parent DS, as referred to in the affidavit of DS sworn June 23, 2015 (exhibit 12, paragraph 10), were admitted.

BB told DS that GB would get spanked if she had an accident in her pants, that his mother mostly spanked GB and that his father spanked really hard and he demonstrated to the foster parent how he was spanked. [ 62 ] BB’s statements to his foster parent DS in August 2014, as referred to in the affidavit (exhibit 12), commencing at paragraph 15, and also as referred to in the affidavit of Anna Galvin, sworn January 9, 2015 (exhibit 6, tab 11), were not admitted into evidence. [ 63 ] The statement of AB to Alison MacDonald on April 22, 2014, as referred to in Alison MacDonald’s affidavit sworn June 25, 2014 (exhibit 6, tab 1), was admitted.

When Ms. MacDonald met with AB on that date AB told her that when the Respondents were going through the courses required for foster and adoptive families they took them seriously but once the children were adopted the Respondents changed. AB indicated that her parents knew they could not spank the children before they were adopted because it was against the rules but that the two youngest children BB and GB had subsequently been spanked with a wooden spoon and a wooden rod.

AB indicated that the children were not allowed to tell anyone what was happening because they had to be loyal to the family. [ 64 ] The statement of KB to Alison MacDonald on July 14, 2014 was also admitted (affidavit of Alison MacDonald sworn July 16, 2014, exhibit 6, tab 3, and paragraph 7).

During the interview with KB on July 14, KB indicated that her mother and father did a lot of screaming and yelling at home, that she had been slapped by her mother DB on her back on the day she was taken into care and that this had been painful and she had cried and that this was not the first time she had been hit by her mother. KB also indicated that her mother would have her older sister AB hit her. KB also stated that before she and GB and BB were interviewed on April 2, 2014, her mother had them memorize answers to the agency’s questions.

KB also indicated that she was not hit or spanked until after her adoption day. KB suggested that her sister AB had told the truth in what she had originally reported. She described an incident where her mother had chased her around the house before cornering her and then grabbing her back in a manner which left scratches.

KB indicated that she couldn’t tell the truth previously because of the need to obey her mother noting that if the children did not obey they would get hurt. [ 65 ] The statement made by KB to her foster parent MM (affidavit of MM sworn June 23, 2015, exhibit 11, commencing paragraph 9) was found to be admissible together with those portions of the affidavit of Anna Galvin (exhibit 6, tab 11) referring to the statement as reported by the foster parent.

On July 12, 2015 KB told her foster parent that there was a lot of yelling and screaming at her parents’ home and that her younger siblings GB and BB were frequently spanked by her parents. KB indicated that two days before she came into care her mother slapped her back. She indicated that it was a very hard slap and that it really did hurt.

KB also indicated that, after agency social workers had come to visit the home, her parents sat her and her two younger siblings at a table and had a rehearsal about how they would respond to questions if interviewed about whether they were ever hit, yelled at or spanked and that they were told to say “no”. KB indicated that she was afraid to tell the truth because of what would happen if she did and she was made to go back home. KB expressed concern for her younger siblings. [ 66 ] Statements made by KB to Anna Galvin in October 2014 (October 10 and 30), as referred to in Ms.

Galvin’s affidavit of January 9, 2015 (exhibit 6, tab 11, paragraphs 47 and 48) were also determined to be admissible. On October 30 KB participated in a meeting at the agency and indicated that she didn’t wish to have access with her parents. KB again indicated that when agency workers had attempted to interview the children prior to the taking into care the Respondents had primed GB and BB to respond in the negative if they were asked if the Respondents spanked them. [ 67 ] The statements made by GB to her foster parent MM during the period August to December 2014 were held not to be admissible.

The statements attributed to GB as referred to in the affidavit of MM (exhibit 11), together with relevant paragraphs from the affidavit of Anna Galvin dated January 9, 2015 (exhibit 6, tab 11), were struck. [ 68 ] Finally with respect to the statement of GB to Anna Galvin on March 2, 2015 as referred to in Ms. Galvin’s affidavit of June 10, 2015 (exhibit 7, tab 4, paragraph 32) the court determined that those statements were admissible. On March 2, 2015 the worker attended at the foster home and GB asked to meet with her in private.

GB indicated that she was mad at her parents because they had said that she was lying. When asked when her parents had said this GB indicated that it was during one of her visits with her parents but she couldn’t remember when. GB indicated that she was not lying and indicated that the Respondents did “hit us”. [ 69 ] The court provided detailed oral reasons for its decision on the voir dire on July 17.

Review of evidence adduced during remainder of trial [ 70 ] The hearing of the Minister’s application for orders for permanent care and custody then continued, on the basis of counsel’s agreement that the evidence admitted during the voir dire would also be available for consideration in determining the Minister’s application. [ 71 ] In the paragraphs that follow I provide a

summary of some of the evidence presented during the balance of the hearing. I want to again emphasize that this is a

summary and not intended to be a comprehensive review of the evidence. I do however want to assure all the parties that I have carefully considered and reviewed all of the evidence presented during the entire hearing in determining this application. [ 72 ] The trial continued on July 17, 21, 23 and 24 and also October 20 and 23. A total of 37 exhibits (including voir dire exhibits) were tendered during the trial. Ten additional witnesses were called on behalf of the Minister, and one witness who had testified during the voir dire, Anna Galvin, was recalled. The Respondents DB and CB testified. The Third Parties CNB and LM also testified.

[ 73 ] Angela Ellsworth, psychologist, testified on behalf the Minister. She was permitted to give opinion evidence as an expert in psychology with particular expertise in relation to child psychology, trauma-informed treatment and assessment of the psychological, cognitive and social needs of children. [ 74 ] Ms. Ellsworth confirmed that she had completed comprehensive psychological assessments for KB, BB and GB. [ 75 ] During her direct examination she confirmed that KB’s cognitive abilities were within the average range. Ms.

Ellsworth testified that child development is very much influenced by primary caregivers. In KB’s case her early childhood experiences were disrupted by either abuse or neglect and not receiving appropriate caregiving. As a result she developed a sense of distrust and developed strategies to best manage on her own. This was then followed by her adoptive family placement where Ms. Ellsworth believed she again was in an environment that did not offer safety and security and exposed her to additional trauma. Ms. Ellsworth expressed her belief that KB would require long-term intense therapy. [ 76 ] Ms.

Ellsworth was asked how a child who had been impacted by trauma would react to being returned to the placement where they had experienced that trauma and she suggested that the child would react in a significantly negative manner. She expressed concern that the child would be hyper-aroused to not feel safe or secure and that he or she would be left to their own survival mode and self- preservation, which has long term significant social, emotional and learning repercussions. [ 77 ] Ms.

Ellsworth suggested that GB would benefit from appropriate support from adults, as well as individual therapy that could offer guidance for GB as well as her caregiver. She felt that it would be in GB’s best interests to have a trauma- focused approach to therapy based on the fact that what has happened to GB is trauma based and is impacting upon attachment relationships. She referred to GB as being at greater risk for impulsive type behaviours and not necessarily knowing or understanding the consequences prior to making choices. [ 78 ] Ms.

Ellsworth’s assessments for each child were included in exhibit 18, at tab 1. [ 79 ] Doreen Coady Shadbolt, registered psychologist, also testified for the Minister. Ms. Coady Shadbolt was permitted to give opinion evidence as an expert in psychology with particular expertise in diagnosing and treating children with mental health, emotional, social and behavioural issues as well as expertise in identifying and treating attachment issues in children. She provided therapeutic services for KB, BB and GB following the taking into care. [ 80 ] When asked how life experience may impact upon development Ms.

Coady Shadbolt indicated that early neglect, trauma or chaos can impact negatively upon the child’s development and their ability to regulate their emotions. [ 81 ] In a written report relating to her involvement with all three children dated June 7, 2015 (exhibit 18, tab 3I) Ms. Coady Shadbolt offers the following opinions with respect to KB: K presents as a young pubescent girl who is in the process of identity formation. K has had numerous changes and challenges in her life and as a result is somewhat wary of forming new relationships.

She is, in my opinion, exquisitely sensitive to tone of voice and rejection, as well as hypocrisy. K appears hypervigilant to alterations of the truth and becomes very distressed (which manifests itself as anger) when adults in her life do not validate her emotions or her perspective. K has made clear statements about her adoptive family, and how she has felt disconnected and harmed by them. She has disclosed incidents of physical punishment and lack of feeling important in the household.

She has expressed significant anger at her former adoptive parents and at present is stating that she wishes no relationship with them. [ 82 ] In her report dated June 7, 2015 Ms. Coady Shadbolt expresses her belief that the child GB requires a stable home environment which is able to teach her emotional regulation skills and encourage exploration and curiosity. At one point during her direct examination she indicated that if GB was not placed in that type of environment she will start to have difficulty at school and her peer relationships might suffer.

She expressed concern that GB might become emotionally dysregulated or temperamental, and that her anxiety would begin to manifest as anger. [ 83 ] During her direct examination Ms. Coady Shadbolt also talked of a therapy session with GB where she was reaching into a shelf to get some stickers and a bag containing small dowels fell out and GB reacted by saying “Hey, it’s a little Mr. Rollie”. The child wasn’t frightened, just pointing out what it was. [ 84 ] In her report of June 7, 2015 Ms.

Coady Shadbolt indicates her belief that BB has adjusted well in his current foster placement and is displaying no significant behaviours either at home or at school. She noted that BB had made comments about being fearful of his adoptive parents and had indicated that he no longer wished to visit them.

She expressed her opinion that it was imperative that BB’s positive relationship with his current foster parent be maintained given his developmental stage, noting the need for BB to be stabilized in a healthy, structured and warm environment otherwise the child could begin to increase risk-taking behaviour. [ 85 ] During cross-examination Ms.

Coady Shadbolt indicated that she did not believe that any of the disclosures made by the children about the abuse they had suffered at the home of their adoptive parents were a result of manipulation or coaching. [ 86 ] Harvey Bate, casework supervisor, identified his affidavit sworn January 6, 2015 as set forth in exhibit 6, tab 10. [ 87 ] Mr. Bate testified that he was the caseworker for the Respondents DB and CB in 1998 when their biological daughter AP reported that she had been hit. Mr. Bate was requested to do an investigation and subsequently AP was taken into care. According to Mr. Bate, Mr. and Mrs.

B admitted to hitting the child with a belt but denied that this had happened the number of times suggested by AP. [ 88 ] The case recordings relating to AP are found in exhibit 13 at tab 1A. The recordings confirm that AP alleged that her father CB

hit her with a belt. The recording dated April 10, 1998 indicates that when interviewed, her mother, DB, confirmed that AP was hit by the belt by her father, but indicated it was the first time she had been hit with the belt, it was only used as a last resort and no force was used. An entry dated April 14, 1998 indicates that AP also reported being hit with a broomstick. The case recordings also confirm that the parents consistently expressed concerns with respect to AP’s credibility. [ 89 ] Mr. Bate testified that a psychological assessment was completed and according to Mr.

Bate the report indicated that AP was prone to lying. Family support services were provided. DB and CB were cooperative with the agency and AP was eventually returned home and the file closed. [ 90 ] During his testimony Mr. Bate confirmed the agency’s belief that the children would be at risk in Mr. and Mrs. B’s home. The agency is accepting of the children’s disclosures. [ 91 ] Mr. Bate testified that Mr. and Mrs. B had been offered therapy but had not been able to identify any issues to be addressed through therapy.

The agency concluded that family support services would not be appropriate because the Respondents had had extensive training previously as foster parents and potential adoptive parents. [ 92 ] Mr. Bate also confirmed that the Minister was not willing to pursue placement of the children with CNB and LM. Mr. Bate indicated that the agency was relying upon the recommendations of Debra Garland with respect to any possible placement for BB and GB. He noted that there had been a prior concern relating to domestic violence on the part of CNB and that CNB had also been involved in mental health counselling.

Another concern was their ability to protect the children given CNB’s continued relationship and contact with his parents DB and CB. Mr. Bate made it clear that there were no major concerns regarding the parenting ability of CNB and LM. [ 93 ] During his cross-examination Mr. Bate acknowledged that KB and BB had been adopted by Mr. and Mrs. B in May 2013 and at that point there had not been any concerns identified with respect to the care being provided by Mr. and Mrs. B. [ 94 ] The next witness called on behalf of the Minister was Kerstin Schauss, clinical therapist. Ms.

Schauss identified her correspondence to the agency dated July 15, 2014 (exhibit 6, tab 3, exhibit D), regarding her involvement with BB. The letter confirms that Ms. Schauss had been providing joint therapy sessions for the child BB and the Respondent DB during the months of May, June and July 2013. Following a joint therapy session on July 4, 2013 DB did not bring BB for any further therapy. She made several attempts to contact DB by telephone to inquire as to why they had stopped coming but there was no answer. Ms. Schauss indicated her belief that joint sessions were beneficial for BB.

She expressed concern that the abrupt disruption in service was not a healthy way for the child to disengage from therapy since it provided no opportunity for therapeutic closure. [ 95 ] Ms. Schauss indicated that she’d also been involved in providing therapy for KB. She acknowledged that she had terminated KB’s therapy because she concluded that it was no longer necessary. However she explained that they had a closing session with KB and again emphasized that that had not happened for BB. [ 96 ] During cross-examination Ms.

Schauss reiterated that she was very clear in indicating that she never said therapy for BB had ended. [ 97 ] Social worker Amy Sutherland testified on behalf of the agency. Ms. Sutherland indicated that she became the responsible social worker in July 2014 and as such was responsible for case planning. She confirmed that the agency identified that a parenting capacities assessment would be useful and she arranged for Debra Garland to undertake such an assessment. Counselling was also identified as appropriate and so they arranged for Dr. Webster to provide counselling for Mr. and Mrs.

B. [ 98 ] During her direct examination Ms. Sutherland reviewed the agency’s concerns with respect to Mr. and Mrs. B, noting that the children had originally been placed with them as foster parents subject to a written agreement that they not use corporal punishment. In addition she noted that Mr. and Mrs. B had received training for foster and adoptive parents. She suggested that approximately 20 courses may have been provided to DB. Despite all this training, Mr. and Mrs.

B still used corporal punishment in disciplining the children. [ 99 ] Another concern was what happened with the children appeared to be part of a greater pattern involving Mr. and Mrs. B’s biological children. She noted that the history of parenting of their biological children also involved use of corporal punishment. [ 100 ] Ms.

Sutherland indicated that the agency had to follow the timelines in the legislation and stated that the Minister did not believe that there would be any foreseeable positive change in the near future. [ 101 ] She reviewed the services that had been provided both prior to and subsequent to adoption. She noted the Respondents’ participation in PRIDE training, foster/adoption training plus a subsidized adoption agreement that had authorized services for the children, including counselling for KB and BB and for the Respondents themselves. [ 102 ] During her testimony Ms.

Sutherland also indicated her belief that a supervision order would not be able to alleviate the identified protection concerns. She again confirmed the Minister’s belief that the children had been emotionally and physically abused. Ms. Sutherland expressed her opinion that the children had experienced trauma in the home of Mr. and Mrs. B and that any potential placement with them would involve a high risk of future trauma. [ 103 ] Ms. Sutherland confirmed that the agency was not supportive of placement with CNB and LM.

The agency concerns were based upon the fact that CNB and LM did not see any risk associated with Mr. and Mrs. B. She confirmed her understanding that CNB and LM do not believe that the children’s statements or reports of abuse are true. CNB and LM do not see any risk associated with contact between the children and Mr. and Mrs. B. She indicated that CNB and his parents have a close relationship. She queried how CNB could protect the children if he did not perceive there to be any risk associated with contact with his parents.

She emphasized that the children need to be in a blemish-free stable home but acknowledged the well-meaning intentions on the part of CNB and LM. [ 104 ] In commenting upon the agency’s long-term plan for the children she confirmed that the agency plan is premised upon the two

children being adopted and having a “forever” home. She expressed her belief that access post permanent care and custody would interfere with the stability of an adoptive home. [ 105 ] Debra Garland, registered psychologist, was the next witness to testify for the Minister. Ms. Garland was permitted to give opinion evidence as an expert in psychology with particular expertise with respect to parental capacity assessments, parent-child relationships, child psychological development and attachment. [ 106 ] Ms.

Garland identified her assessment as contained in exhibit 17, at tab 1B. [ 107 ] When referred to page 22 of her assessment report and the information regarding the collateral interview with CNB, Ms. Garland testified that she was confident that she would have included CNB’s statement that he and his sister were disciplined with a belt on occasion in her notes and that she was confident that it was an accurate statement attributable to CNB. [ 108 ] Based upon the results of the psychological testing Ms.

Garland concluded that the Respondents do not have the parental capacity to meet the emotional, psychological and physical or developmental needs of the children. [ 109 ] Ms. Garland expressed her belief that the child GB requires parents who can respond to her need to grow and develop, to encourage her socially, to encourage her independence, to teach her social norms and values. She indicated that this would also apply to the child BB. [ 110 ] Ms. Garland testified that use of physical discipline has impact upon children.

She expressed her belief that when children are physically disciplined it’s a threat and an assault. It teaches children that force is a means of dealing with issues. It often encourages them to use physical discipline or physical intervention as they grow older. [ 111 ] Ms. Garland testified that her ultimate conclusion with respect to the Respondents’ parenting capacity was that she does not believe that they have the capacity or ability to adequately parent the children. [ 112 ] Ms.

Garland also expressed her opinion that if GB and BB are to be placed in the permanent care of the Minister and if they are going to have another adoptive home, that home has to be established and stable. She indicated that there cannot be any history of interpersonal violence or domestic violence or substance abuse. It needs to be a very stable home where the children will be able to have permanency. [ 113 ] During her cross-examination Ms.

Garland acknowledged that it was possible she was confusing a conversation with KB and AB at page 17 of her report and she retracted her earlier testimony where she indicated that the child AB had suggested that the Respondent DB watched television. [ 114 ] Ms.

Garland confirmed that in undertaking her assessment she was looking for adequate parenting capacity. [ 115 ] Later in her cross-examination she was referred to the collateral interview with AP, as referred to at page 26 of her report, where she indicated that AB reported that she ran away when she was 13 years old because of corporal punishment used by her parents and that the catalyst was when her mother DB had accused AB of stealing paper money and held her while she was beaten all over her body with a wooden dowel. Ms.

Garland acknowledged that those statements should in fact be attributed to AP rather than AB, and that she had confused it in her report. [ 116 ] During further cross-examination Ms. Garland also reiterated her opinion that the children if placed in permanent care and custody need to be placed in a stable and blemish-free home. She also indicated that any placement that would expose the children to continued contact with the Respondents would be a concern. [ 117 ] Ms. Garland was the last witness to testify on behalf of the Minister.

The trial continued with the presentation of evidence on behalf of the Respondents. [ 118 ] Olga Komissarova, registered psychologist testified on behalf of the Respondent DB. Ms. Komissarova’s Curriculum Vitae was entered as exhibit 26 and her report was entered as exhibit 27. The Minister was not prepared to admit her qualifications. [ 119 ] During cross-examination on the motion to qualify, Ms.

Komissarova agreed with the suggestion that her report was a psychological assessment and not a parenting capacities assessment. [ 120 ] At the conclusion of the voir dire on the motion to qualify, counsel for DB amended her original motion to indicate that she was requesting that the witness be qualified as a psychologist with expertise in the area of psychological assessments. Counsel for the Minister then advised that the Minister was willing to consent to that motion but on the condition that any reference to parenting capacity or placement issues should be struck from her report.

The motion to qualify as consented to by the Minister was granted by the court. [ 121 ] The recommendations as set forth in Ms. Komissarova’s psychological assessment dated June 26, 2015 included a recommendation that the children BB and GB be returned to the care of Mr. and Mrs. B under the supervision of the agency. She indicated that future contact between Mr. and Mrs. B and the two older children AB and KB should be gradual and only if the two children express a need for such contact. [ 122 ] During cross-examination Ms.

Komissarova acknowledged that she had not spoken with Debra Garland but stated that she views Debra Garland to be an excellent psychologist. [ 123 ] At one point during her cross-examination Ms. Komissarova acknowledged that members of the family tend to be more subjective. When questioned as to why she didn’t speak with the Respondents’ son, CNB, she said it was probably because she just didn’t have time.

[ 124 ] During her cross-examination Ms. Komissarova was asked if it was ethical to provide an opinion if she had only limited time to complete the assessment and had to leave out important information. Ms. Komissarova responded by indicating that she had a certain timeframe to work within and that it was not a question of ethics but a question of teamwork and she didn’t feel that she received teamwork from some sources. She then acknowledged that in other circumstances it might be considered unethical but she felt that she did the best she could. [ 125 ] Ms.

Komissarova acknowledged that she didn’t have any contact with any of the children. At another point she acknowledged that she had a limited time to review the documentation that she was provided with and therefore she had filed an addendum on June 29. [ 126 ] During cross-examination by counsel for the Guardian ad Litem, Ms. Komissarova agreed that she couldn’t complete a thorough assessment due to time limitations. [ 127 ] The next witness to testify was the Respondent, DB.

She identified her affidavit as exhibit 21 and confirmed that the information in the affidavit was true. [ 128 ] In her affidavit DB confirmed that she and CB are currently members of a Mennonite Church. She indicates that they were previously members of a different Mennonite Church but left that church permanently in 2014 as a result of differences between their beliefs and those of that Church. [ 129 ] In her affidavit DB confirmed all of the courses that she and CB had taken to qualify as foster parents and adoptive parents.

Various certificates of merit and certificates of accomplishment were attached as exhibits to her affidavit. [ 130 ] In her affidavit DB noted that the child AB was adopted August 13, 2012, KB and BB were adopted on May 3, 2013 and GB was adopted on May 24, 2011. [ 131 ] In one

section of her affidavit DB discussed discipline in the home. She confirmed that spanking was used on occasion as a last resort and always with a hand on top of the clothes and with an explanation for the punishment. According to the applicant spanking was only used as a corrective measure. BB was only ever spanked once or twice because he was lying persistently. GB was spanked infrequently as a corrective measure for hitting and yelling at others. DB denied frequent spanking, spanking or hitting with the use of any kind of tool or weapon or spanking on any part of the body, other than a tap on the bum.

She also denied any yelling or screaming at the children. DB’s affidavit also included a denial of any abuse of her biological children. Her affidavit confirmed her request that the two younger children be returned to the care of the Respondents. In the alternative, if that was not possible, then she supported the children being placed in the care of CNB and LM. [ 132 ] She was cross-examined by counsel for the Minister. [ 133 ] DB acknowledged that she admitted to spanking the children with an open hand but denied all other allegations.

When asked about the children’s allegations DB suggested that it seemed to her that the children had been led. She did not offer any basis for this impression. [ 134 ] DB testified that she and Ms. Schauss had reached a mutual understanding to stop BB’s therapy. She disagreed with Ms.

Schauss’ testimony about the ending of the therapy for BP. [ 135 ] When asked about discipline DB testified that she remembered signing the agency’s discipline policy however she indicated that she thought it was only applicable to foster children and noted that in any event physical discipline involving the use of a hand for spanking was only used as a last resort. She indicated she understood that the Minister’s discipline policy meant that spanking was not okay.

She then went on to testify that while she understood it was not okay, the spanking occurred about a year later, meaning a year after the children had been adopted. She was then asked if she considered herself bound by the policy post adoption and she responded “not necessarily”. [ 136 ] DB testified that as adopting parents they had received a letter stating that they now have all the rights as if the children were born to them. She then suggested that physical discipline was okay if done in a proper manner. She acknowledged that she had received training regarding discipline as a foster parent.

It was again suggested to her that physical discipline was not acceptable and she said she couldn’t remember what book indicated that so she wasn’t able to comment. [ 137 ] At one point during her testimony DB said that the children were in the home for one and half years following adoption before she ever spanked one of them. She then went on to suggest that what happened was that BB was getting a lot like KB and he was “lying without consequence or reward, lying, lying, lying”.

They tried to make him understand through consequences by sending him to bed early or time out but none of the methods tried were successful so she gave him a little spanking, but that didn’t help either. [ 138 ] When questioned by counsel for CB, DB indicated she agreed that she would regard spanking as a last resort. She was then asked if spanking remained an option and she responded “definitely not”. She was then asked why and she said “look where we are at”. She testified that spanking didn’t help with BB and she deeply regretted it. She then stated that spanking was used once for BB and about twice with GB.

DB said that spanking was used with BB as a last resort because they didn’t want BB to be like KB. She went on to explain that AB was giving them lots of problems due to her crush on a teacher and KB was yelling and screaming a lot and they tried to hide the young ones from this. At a later point she testified that KB constantly involved the other children in her lies. [ 139 ] Various affidavits were entered as exhibits 23, 24 and 25 by consent.

The deponents for exhibits 23 and 24 confirmed their acquaintance with the Respondents and indicated that they had never seen any signs of abuse or mistreatment of the children. [ 140 ] Exhibit 25 was the affidavit of the Respondents’ daughter, SB. In her affidavit SB maintains that KB would lie about things. SB indicated in her affidavit that she has never been abused by either of her parents in any way and that she has never seen her parents abuse the other children. She denied any knowledge of “Mr. Rollie”.

[ 141 ] The next witness to testify was the children’s father, CB. He identified his affidavit (sworn declaration) as exhibit 28. With the exception of some typographical errors he said that the affidavit was true. [ 142 ] CB discussed discipline of the children in his affidavit. He indicated the discipline was always corrective. He confirmed that the forms of discipline utilized included spanking.

He denied that discipline ever involved hitting a child with an open or closed hand, slapping a child in the face, hitting the child with a physical instrument such as a wooden dowel or wooden spoon or wooden or plastic spatula or broomstick. [ 143 ] CB denied ever hitting KB or using any weapons as a form of discipline or ever making threats of physical discipline. In relation to BB he indicated that he spanked BB a couple of times for lying and that the spanking involved a couple of slaps to the rear and never left any marks and never involved use of a weapon.

The reason BB was spanked was because he was constantly lying. He denied ever spanking or using any physical discipline with GB. [ 144 ] CB denied that either DB or he ever coached the children to lie. [ 145 ] He acknowledged that the term ‘Rollie’ was a term he was familiar with. It was referenced in a book used by a Minister during a study on Christian parenting that advocated not “spoiling the child by sparing the rod” and according to CB the rod was called “Rollie”. CB denied that he or DB ever used rods or dowels as a form of discipline.

He acknowledged that dowels were used in the house in the front yard to keep rosebushes in place and that one was used in the powder room to hold up a curtain in front of the closet. [ 146 ] Three other sworn declarations were entered on behalf of CB as exhibits 29, 30 and 31 on a consent basis. The declarations were similar insofar as each declarant confirmed their relationship with the Respondents and indicated that they had never seen the Respondents physically or emotionally abuse their children. [ 147 ] The Third Party CNB testified on his own behalf.

He identified exhibit 36 as his affidavit sworn April 24, 2015. [ 148 ] When referred to his discussion with Debra Garland he indicated that when he told Ms. Garland he was never disciplined he meant by use of a weapon or object. He indicated he was spanked on his rear and that the last time this would have happened would have been when he was 9 or 10 years old. [ 149 ] When asked about his mental health history he said that his mental health was an issue in 2012, when he was a patient in the mental health unit at the local hospital. He had overdosed on Ativan. He was experiencing a lot of stress.

He was admitted to hospital in June 2012 and afterwards continued with therapy for eight months. [ 150 ] CNB confirmed that he was still supportive of his parents but in the alternative he was asking that the two children be placed in the care of himself and LM. He confirmed his willingness to cooperate with the agency and comply with any court order. [ 151 ] During cross-examination CNB was asked whether or not he agreed that his parents pose a risk for the children.

He responded by indicating that with the current evidence he didn’t have to agree to that, but he was waiting on the outcome of the trial and would prefer that the judge make the decision. However he did point out that the risk was based on the allegations of the children. [ 152 ] He was then asked whether or not he felt the children would be at risk in his parents’ care and he indicated that he never felt they were at risk however after hearing the evidence he felt there was a risk.

Again he said the risk that he sees is based on the allegations of the children but he can’t be confident about the allegations until they are proven one hundred percent.

He indicated that if the court says there are risks, he will agree. [ 153 ] CNB was then asked whether or not he believes the children would be at risk of harm if they were in his parents’ care and he testified that at this time he does not believe that. [ 154 ] When asked whether or not he would accept or rely upon Debra Garland’s opinion, CNB responded by indicating that he still supports the children being returned home to his parents. [ 155 ] CNB was then referred again to Debra Garland’s assessment and asked to acknowledge her recommendation that any placement for the children should have a long history without blemishes and he agreed that that was her recommendation.

He was then asked if he fit that description and he suggested that in the past five years he would say he was without blemishes. He was then asked if he had contact with the agency in 2012 after he had overdosed on Ativan and he acknowledged that to be correct. He was then asked if his daughter had been present when he had overdosed and he responded in the affirmative. [ 156 ] The mental health records for CNB were tendered as exhibit 37.

CNB acknowledged that in the past five years he had attended mental health for depression. [ 157 ] After being given the opportunity to review his mental health records he was then asked if this was the blemish-free history that the children required and he responded by indicating that in the span of five years he agreed that he would not be blemish free. [ 158 ] CNB was then referred to paragraph 11 of exhibit 34 (CNB’s supplementary affidavit sworn July 7, 2015).

When asked to explain the information set forth in the exhibit CNB said that he was on Ativan and it made him lose control over his thoughts and actions. He maintained he had no recollection of what was referred to in the mental health records. He indicated that what he had said at the time was not one hundred percent true or accurate, but then suggested that the things he had said were not true at all. [ 159 ] CNB was then referred to exhibit 37 (CNB’s mental health records) at page 51 and asked about his visit to mental health on November 4, 2011.

CNB said he was not denying what was in the records but at the time he was having a lot of problems and he was trying to blame other people for his problems. He then indicated that contrary to the information in the records there was no family violence in his home. He stated that his reference to his father being physically abusive towards himself and his sister was incorrect and that that did not happen. In particular he said that his father did not hit them on the skin with rods and belts. CNB testified that he had no

memory of violence towards himself or his sister and again he stated that at the time he was on Ativan and at a low point in his life. [ 160 ] CNB was then referred to Debra Garland’s report at page 22 wherein Ms. Garland indicated that he had told her that as a child he had been disciplined with a belt. CNB then suggested that Debra Garland had misinterpreted his conversation with her. He agreed that he was not on Ativan at time of the interview with Debra Garland.

CNB maintained that what he told Debra Garland was the story that his sister AP had told regarding the belt. [ 161 ] CNB was then asked to explain the contradiction between what he had put in his affidavit, what he had told mental health and what he had told Debra Garland and he responded that when he was involved with mental health he was trying to blame everybody else and felt that he deserved some support financially from his parents and he was bitter and angry towards them.

Again he insisted that he had told Debra Garland AP’s version of the story. [ 162 ] At page 51 of exhibit 37 a mental status exam note for visit date of November 4, 2011 indicated that CNB reported depressed mood with suicidal ideation and a plan to hang himself in the woods. Concern was noted regarding his judgment due to his pattern of cannabis abuse.

Risk of suicide was assessed as moderate to severe. [ 163 ] Exhibit 37 contained the following entry at page 51, as part of a Mental Health Crisis Consult dated November 4, 2011 in the psychosocial portion of the Consult: He reports a family history of family violence. Reports his father was physically abusive to him and his oldest sister. He reports Children’s Aid was involved when he was a youth but he lied to them because he feared he would be abused more. He reports his father would hit him often on the bare skin with rods and belts. He moved out as stated above at Grade 10 and the abuse stopped.

He says now he has a good relationship with his parents and they are different people. They are foster parents. He has no concerns of his children being with his parents due to risk of violence. . . . [ 164 ] The Third Party LM was the last witness to testify. She identified exhibit 32 as her affidavit. During brief cross-examination she confirmed that she and CNB reside less than five minutes away from Mr. and Mrs. B. Submissions [ 165 ] In closing argument counsel for the Respondent DB emphasized the burden of proof resting upon the Minister. Ms.

Reid emphasized that the burden of proof was on balance of probabilities and that the court needed to be satisfied that it is more likely than not that there is either harm or risk of harm in order to find the children to be in need of protective services. Ms. Reid emphasized the importance of assessment of credibility in determining the Minister’s application and stressed the need to assess ultimate reliability with respect to the children’s out-of-court statements.

She maintained that if ultimate reliability of the statements could not be established then the Minister would not have met the burden of proof required to establish that the children were in need of protective services. Ms. Reid emphasized that it was not acceptable for the Minister to take the position that spanking is never okay. She suggested that spanking would not fall under the definition of physical or emotional harm. Ms.

Reid also emphasized that the standard expected of the parents is good enough parenting. [ 166 ] Counsel for CB did not make oral submissions at the conclusion of the hearing indicating that he would rely upon the written submissions filed on behalf of CB. In a written submission dated October 23, 2015 Mr. Sutherland emphasized the importance of the court making appropriate findings with respect to credibility, as well as reliability, in relation to the children’s out-of-court statements. Mr.

Sutherland maintained that the Respondents did not have to prove that the children were lying or colluding but rather the onus rested with the agency to establish the reliability of the children’s statements. [ 167 ] Counsel for the Third Parties confirmed that his clients continue to support the Respondents and their request that the two children be returned to their care. In the alternative the Third Parties were asking that the children be placed in their care. Mr. Kuszelewski maintained that his client’s plan was acceptable and workable.

He suggested that the Minister was wrong in suggesting that a five-year timeframe would be required or appropriate to establish a blemish-free potential placement. He confirmed the willingness on the part of the Third Parties to cooperate with the terms of any order and indicated that he would prepare any necessary application or order quickly. [ 168 ] Counsel for the Guardian ad Litem emphasized that the children had reported abuse to agency workers, foster parents as well as the police. She submitted that any suggestion of collusion between the children was ludicrous. Ms.

MacKenzie submitted that the Minister had met the burden of proof. She also submitted that there were too many problems associated with the parenting plan submitted by the Third Parties and in particular noted the Third Parties’ failure to appreciate or acknowledge any risks with respect to the Respondents. Ms. MacKenzie indicated that there were significant credibility concerns relating to the Third Party CNB. [ 169 ] In a brief oral submission, counsel for the Minister emphasized the significance of the children’s disclosures. Ms. McFadgen urged the court to accept Ms.

Garland’s assessment report in its entirety. She indicated that the risk regarding the Third Parties is unambiguous because they do not accept any risk regarding Mr. and Mrs. B. Given the initial interim disposition order made November 20, 2014 Ms. McFadgen indicated that the

section 45 time limit in relation to the youngest child GB (12 months) had expired and therefore there were only two options; either dismissal or permanent care and custody. With respect to BB she acknowledged that because of his age, the timeline would be extended to May 20, 2016. She confirmed the Minister’s position that the protection issues could not be addressed within the timeline. [ 170 ] The Minister submitted a written post-hearing brief on November 9, 2015.

The brief confirmed the Minister’s request for a finding that the two children are in need of protective services pursuant to section 22(2), paragraphs (b), (g), (f), and (k). [ 171 ] With respect to substantial risk of physical harm the Minister maintains that the disclosures made by the children do not support the Respondents’ contention that any physical discipline utilized should be seen as reasonable corrective discipline. The Minister

maintained that the statements of the children should be accepted as reliable. The Minister suggested that the credibility of the Respondents as well as CNB should be carefully considered and assessed. [ 172 ] With respect to the Third Parties, the Minister acknowledged the court’s jurisdiction to grant a Third Party supervision order in favour of CNB and LM but suggested doing so would be inconsistent with the children’s best interests and would place them at substantial risk of physical and emotional harm.

The Minister argued that the risk posed by CNB and LM stems largely from their failure to recognize the risk posed by the Respondents. [ 173 ] I would also note that extensive prehearing briefs were filed on behalf of DB, CB and the Minister prior to the commencement of the contested hearing on July 7. Applicable legislation and case authorities [ 174 ] In determining this matter I have taken note of the relevant provisions of the Children and Family Services Act . [ 175 ] In particular I have considered the

preamble to the legislation which underscores the purpose and philosophy of the Act and clearly emphasizes that children are only to be removed from the care of their parents when all other measures are inappropriate. [ 176 ] I have also taken note of

section 2 which confirms that the paramount consideration in all child protection proceedings is the best interests of the children. [ 177 ] I have considered section 3(2), and the relevant circumstances as listed therein, in determining the best interests of the children. [ 178 ] I have also considered the agency’s obligation to provide services as per

section 13. [ 179 ] I have taken note of the relevant provisions as set forth in section 22(2) in determining whether the children continue to be in need of protective services. [ 180 ] I have also taken into consideration the provisions of sections 42, 45, 46 and 47. [ 181 ] In the paragraphs that follow I have set forth excerpts from several decisions that provide guidance with respect to the determination of an application for permanent care and custody under the Children and Family Services Act . [ 182 ] In Nova Scotia (Community Services) v.

C.B. , 2012 NSSC 358 Justice Jollimore determined an application by the Minister for an order for permanent care and custody without provision for access for the Respondent mother. In granting the Minister’s application, Justice Jollimore offered the following analysis commencing at paragraph 19: [19] The purposes of the Children and Family Services Act are to protect children from harm, to promote the family’s integrity and to assure children’s best interests. These purposes are expressed in the Act ’s

preamble and they are also repeated in the articulation of “best interests” found in subsection 3(2). [20] In Children and Family Services Act proceedings, the children’s best interests are paramount. At different points in a child protection application, the Act directs me to consider “the best interests of a child” when making an order or a determination. When that happens, subsection 3(2) dictates that I consider those of enumerated circumstances which are relevant. [21] This is an application to review a temporary care and custody order.

Section 46 of the Children and Family Services Act outlines the process I’m to follow in this review. Before I make an order in a review, I must consider: whether the circumstances have changed since the previous disposition order was made; whether the plan for the children’s care applied in that order is being executed; the least intrusive alternative that’s in the children’s best interests; and whether the requirements of subsection 46(6) have been met.

Subsection 46(6) says that I may make a further temporary care and custody order unless I am satisfied that the circumstances which justified the earlier order are unlikely to change within a reasonably foreseeable time that doesn’t exceed the statutory deadline. . . . [33] The Minister asks that I order the children be placed in its permanent care and custody pursuant to section 42(1)(f). Before I may do this, I must consider subsections 42(2) and 42(4) of the Act . The former

section mandates that I do not make an order that removes the children from their mother unless I am satisfied that less intrusive alternatives have been tried and have failed, have been refused, or would be inadequate to protect them. The latter

section instructs that I shall not make a permanent care and custody order unless I am satisfied that the circumstances which justify the order are unlikely to change within a reasonably foreseeable time, not exceeding the maximum time limits.

I have already addressed the latter point, above, but will return to it, briefly, below. . . . [42] According to subsection 42(3) of the Children and Family Services Act , I am not to place children in the Minister’s permanent care and custody without considering whether there is a possible placement with a relative, neighbor or other member of the children’s community or with extended family. Here, no such placement has been identified for J or C. …. [ 183 ] In Mi’Kmaw Family and Children Services v. KDo , 2012 NSSC 379 Justice Forgeron considered an application for permanent care and custody.

Justice Forgeron identified the following principles commencing at paragraph 18:

[18] In this case, the agency is assigned the burden of proof. It is the civil burden of the proof. The agency must prove its case on abalance of probabilities by providing the court with “clear, convincing, and cogent evidence”: C. (R.) v. McDougall, 2008 SCC 53. Theagency must prove why it is in the best interests of the children to be placed in the permanent care and custody of the agency, accordingto the legislative requirements, at this time. [19] In making my decision, I must be mindful of the legislative purpose.

The threefold purpose is to promote the integrity of thefamily, protect children from harm, and ensure the best interests of children. The overriding consideration is, however, the best interestsof children as stated in sec. 2(2) of the Act. [20] The Act must be interpreted according to a child centred approach, in keeping with the best interests principle as defined in sec.3(2). This definition is multifaceted.

It directs the court to consider various factors unique to each child, including those associated withthe child’s emotional, physical, cultural, and social development needs, and those associated with risk of harm. [21] In addition, sec. 42(2) of the Act states that the court is not to remove children from the care of their parents, unless less intrusivealternatives have been attempted and have failed, or have been refused by the parent, or would be inadequate to protect the children. [22] When a court conducts a disposition review, the court assumes that the orders previously made were correct, based upon thecircumstances existing at the time.

At a review hearing, the court must determine whether the circumstances which resulted in theoriginal order, still exist, or whether there have been changes such that the children are no longer children in need of protective services:sec. 46 of the Act; and Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.) (SCC), [1994] 2 S.C.R.165. [23] Past parenting history is also relevant as it may be used in assessing present circumstances. An examination of pastcircumstances helps the court determine the probability of the event reoccurring. The court is concerned with probabilities, notpossibilities.

Therefore, where past history aids in the determination of future probabilities, it is admissible, germane, and relevant: NovaScotia (Minister of Community Services) v. Z.S. 1999 NSCA 155 at para. 13; Nova Scotia (Minister of Community Services) v.G.R. 2011 NSSC 88, para. 22, as affirmed at Nova Scotia (Minister of Community Services) v. G.R. 2011 NSCA 61. [184] In Nova Scotia (Community Services) v. A.W., 2014 NSSC 393, Justice Haley determined an application for permanent care andcustody. His Lordship offered the following comments with respect to determination of an application for revi

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