Nova Scotia (Community Services) v. C.B., 2012 NSSC 358

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Nova Scotia (Community Services) v. C.B., 2012 NSSC 358 Date: 20121015 Docket: SFH CFSA 075654 Registry: Halifax Between: Minister of Community Services Applicant v. C.B. Respondent LIBRARY HEADING Judge: The Honourable Justice Elizabeth Jollimore Heard: October 15, 2012

Summary: Minister sought permanent care of two children and order for no access. Mother did not oppose. Key words: Child Protection, Children & Family Services Act Legislation: Children and Family Services Act , S.N.S. 1990, c. 5 Maintenance and Custody Act , R.N.S.N. 1989, c. 160 THIS INFORMATION SHEET DOESN’T FORM PART OF THE COURT’S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . Restriction on publication: Publishers of this case please take note that s. 94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication.

Section 94(1) provides: “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 relative of the child.” SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Nova Scotia (Community Services) v. C.B., 2012 NSSC 358 Date: 20121015

Docket: SFH CFSA 075654 Registry: Halifax Between: Minister of Community Services Applicant v. C.B. Respondent Judge: The Honourable Justice Elizabeth Jollimore Heard : October 15, 2012 Counsel: Peter C. McVey for the Minister of Community Services Linda M. Tippett-Leary for C.B. Restriction on publication: Publishers of this case please take note that s. 94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication.

Section 94(1) provides: “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 relative of the child.” By the Court: Introduction [ 1 ] This decision addresses an application by the Minister of Community Services for an order granting it the permanent care and custody of certain children and providing for no access between these children and their mother. [ 2 ] The Minister’s application for a permanent care and custody order is pursuant to

section 47 of the Children and Family Services Act , S.N.S. 1990, c. 5. The request for an order for no access is governed by subsection 47(2) . [ 3 ] At the outset of this proceeding, there were three children involved: M, J and C. As well, there was a second respondent, Ms. G. The children are now aged twelve, nine and four, respectively. Ms. G is a paternal relative of M’s. She is not related to J or C.

[4] C was under six years of age at the time of the application commencing this proceeding. Pursuant to clause 45(1)(

a) of theChildren and Family Services Act, the total period of duration of all disposition orders is not to exceed twelve months from the date ofthe initial disposition order. The initial disposition order was granted on November 21, 2011, so the statutory deadline for thecompletion of the proceeding relating to C is November 21, 2012. [5] Very recently, the Minister, Ms. B and Ms. G have resolved the child protection application relating to M. Early next year, theparties will return before me to formalize an order pursuant to the Maintenance and Custody Act, R.S.N.S. 1989, c. 160.

Implicitly, Ms.B consents to Ms. G’s standing to bring an application for M’s custody. Ms. B supports M residing with Ms. G. M has lived with hersince the summer of 2011. Ms. B says that M is happy living with Ms. G and that this is preferable to other available options. Ms. Bhopes that she may have access with M from time to time and she supports M having access with his maternal grandfather and with J andC. [6] With matters relating to M resolved, I am left to deal with the Minister’s application as it relates to J and C. Permanent care and custody application [7] Ms. B has filed an affidavit.

In it, she says that she would “never give away [her] children or consent to Permanent Care”. Inconsultation with and on receiving advice from her lawyer, Ms. B has decided that she will not oppose the Minister’s application. [8] Ms. B’s affidavit is clear: she does not consent to the order the Minister seeks and she “would never” do so. As such, I am notrequired to make the inquiries required by subsection 41(4), as described in G.D. v. Family and Children’s Services of LunenburgCounty, (NS CA) at paragraphs 39 - 42, and in Nova Scotia (Community Services) v. A.S., 2007 NSCA 82 atparagraph 30. [9] Since Ms.

B is not consenting to the Minister’s application, I must determine whether I should grant its application. I mustdetermine whether it is appropriate, under the Children and Family Services Act, and in the children’s best interests to grant theMinister’s application. I do this, considering the affidavits and reports of the Minister’s witnesses and Ms. B’s affidavit. All materials,from the Minister and Ms. B, were admitted without any requirement for cross-examination.

The children [10] I have information about the children from the affidavits of Agency workers, access facilitators’ reports and experts who haveassessed matters as diverse as cognitive functioning and hearing and speech. As well, I have Ms. B’s affidavit about the children. [11] Nine year old J presents with severe Attention Deficit Hyperactivity Disorder (ADHD) and severe aggression. J is being treatedfor anxiety. C, who is four, presents with developmental delays, including delays in her expressive language.

Both children have neededservices to address these circumstances. [12] J and C have challenging behaviour and they need medical and therapeutic attention. In August 2011, they were placed in anenhanced foster home (called a “contracted” foster home). This placement differs from a typical foster placement because additionalsupports are available in this foster home. The children have remained in this foster home to the current time. Nine year old J [13] More specifically, I have a psychological report relating to J. The report, from David Cox, is over two years old: it was writtenon July 16, 2010.

More recently, I have a report from J’s clinical therapist, dated July 25, 2012. [14] At the time of the psychological assessment, J had just completed Grade 1. As she progressed through school, her behaviour(which had been manageable in Grade Primary) deteriorated. Completing the psychological testing required “systematic, frequentexternal motivators and reinforcers”: J’s behaviour was impulsive and attention-seeking. The same situation had been described at J’shome. [15] Mr.

Cox concluded that J “presents with unusually serious, complex and sometimes physically dangerous” behaviour. “[J] hasminimal self-control, and is almost completely reliant on external controls and immediate one-on-one authority.” Mr. Cox believed thatJ’s behaviour couldn’t be explained by cognitive limitations and it seemed to be a combination of “probable ADHD and an acquiredpattern of oppositional, provocative, and attention-seeking behaviour” resulting from the circumstances in J’s home environment, whichMr. Cox described as chaotic, dysfunctional and lacking in effective behaviour management.

He predicted that, in all likelihood in theexisting circumstances, J’s behaviour would become less manageable and more dangerous. In addition to recommendations for theinvolvement of educational, medical and mental health professionals, Mr.

Cox noted that J “will require an exceptionally high level ofstructure, routine and external behavioural controls.” [16] J’s clinical therapist, Dianne Wheeler, reports that, after fourteen months in foster care, J’s behaviour appears to “have settleddown considerably with a lot of direction and intervention by her foster parents.” J’s behaviour at school has improved, but remainsproblematic. J continues to struggle socially. Structure and healthy parenting are essential to regulate J’s conduct and “without this [J]quickly spirals out of control.” Ms.

Wheeler recommended further therapy for J, who needs structure and healthy parenting to regulateher behaviour. Four year old C [17] C took

part in a speech language assessment at age 3. At that point, Ms. B reported C had a vocabulary of approximately sixty-one words. This is below the expected level for a three-year old. C was described as having “moderately delayed/disordered languageskills”. C attends a daycare focused on assisting children with developmental delays and receives treatment through the Nova ScotiaHearing and Speech Centres. A referral has been made to the IWK Health Centre for a mental health assessment.

The Agency’s concerns [ 18 ] The Minister has articulated its concerns as: (

a) the children’s home and their physical care has been chronically sub-standard, with only intermittent periods of improvement; (

b) the children have persistently alleged that Ms. B has physically abused them and some of these allegations have been corroborated; (

c) the children have, as I’ve detailed above, conditions that require treatment and constant constructive parenting; and (

d) the children have been exposed to conflict and domestic violence through Ms. B’s intimate and extended family relationships. These concerns have been specified as long ago as June 2011 when the Minister’s application was first filed. The Agency has had involvement with Ms. B as early as 2000. Initially there were referrals to the Agency every few years. Since 2007, there have been annual referrals about concerns in Ms. B’s home. A family skills worker was in place through much of 2008 and, since then, there have been referrals about domestic violence. The family’s difficulties have intensified.

Analysis [ 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. [ 22 ] With regard to subsection 46(4), I find that the circumstances have not changed since the previous disposition order was made. Ms. B’s affidavit makes clear that she has not been able to overcome the disordered circumstances of her life.

She is without work and will probably need to relocate again. [ 23 ] The plan for the children’s care that I applied in my earlier decision is being executed. The children remain in their enhanced foster placement and their special needs are being attended to through therapeutic interventions and the provision of services. [ 24 ] Since 2008, the Agency has offered services to this family. In 2011, when this application began, services were increased.

The need for those services continues. [ 25 ] A disposition order is one that requires me to consider the best interests of J and C. [ 26 ] In a review application, the options open to me under subsection 42(1) are: (

a) dismissing the Minister’s application and returning the children to Ms. B; (

b) returning the children to Ms. B, subject to agency supervision for a specified period; (

c) placing the children in the care of a third party, subject to agency supervision for a specified period; (

d) placing the children in the agency’s temporary care and custody for a specified period; (

e) placing the children in the agency’s temporary care and custody for a specified period after which they would be returned to Ms. B or another person for a specified period; or (

f) placing the children in the agency’s permanent care and custody. [ 27 ] I’m to consider each of these possible dispositions, according to Justice Saunders in Children’s Aid Society of Halifax v. B.(T.) , 2001 NSCA 99 , at paragraph 19 . [ 28 ] Ms. B has been clear that she is not asking for more time, either to address the application with regard to C (which would need to be concluded in just five weeks, in any event) or to consider another possible disposition for J. By virtue of J’s age, a final disposition

isn’t required until May 21, 2013. [ 29 ] Ms. B has had more than one year to address the Minister’s concerns. The concerns were identified at the outset of the proceeding. The Agency has been alerted about concerns relating to the children frequently since M was born and those referrals have been annual since 2007. Ms. B has been provided with services to assist her in remedying the deficiencies and problematic circumstances. [ 30 ] According to the Court of Appeal’s decision in Nova Scotia (Minister of Community Services) v.

L.L.P. , 2003 NSCA 1 , at paragraph 31 , I am not required to defer a permanent care decision until the maximum time limit has expired. [ 31 ] I find that there is no less intrusive alternative that is in the children’s best interests. No plan is being offered. The options listed in subsection 42(1) of the Act are, by virtue of the deadlines, reduced to returning the children to their mother or placing them in the Minister’s permanent care. The deadline for the proceeding relating to C is November 21, 2012.

I am satisfied that the circumstances which justified the earlier order are unlikely to change prior to that deadline. There’s no request to delay the Minister’s application relating to J. The deadline for her proceeding isn’t until May 21, 2013. J’s circumstances are more serious than C’s, J’s needs are greater and J requires more extensive involvement by mental health care providers.

Given the seriousness of J’s situation, I am equally persuaded that the circumstances which justified the earlier order relating to her are unlikely to change prior to the May 21, 2013 deadline. [ 32 ] In the present circumstances, I am satisfied that the best interest of these children favours making a final disposition order at this time. Where the circumstances of two siblings, M and C, are being finalized, the third child, J, should not be left alone in uncertain circumstances. All three children should be able to grow up in stable circumstances which allow them to maintain their relationship as siblings.

It is in their best interests that this is not delayed and the chances that J and C will remain together be maximized. [ 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. [ 34 ] Considering subsection 42(2), I am satisfied that less intrusive alternatives have been tried. Efforts began in 2008 and have intensified since 2011. To the extent Ms. B has engaged in them, she admits that she is unable to give the children the support they need.

I acknowledge that Ms. B has made efforts to work with the Agency’s service providers. [ 35 ] Subsection 42(2) refers me to

section 13 of the Act and services promoting the family’s integrity. Some of these services are relevant: for example, counseling, assessment, self-help and empowerment of a parent. [ 36 ] This family has received various services: supervised access; individual counseling; a family skills worker; and parental capacity and psychological assessments to inform and guide the provision of services to Ms. B and the children. After more than a year of Agency involvement, Ms.

B acknowledges that she doesn’t have the resources to give the children the support they need. [ 37 ] I’m not to make a permanent care and custody order unless I’m satisfied that the circumstances which justify the order are unlikely to change within a reasonably foreseeable time, not exceeding the maximum time limits. The maximum time limit for C is approximately five weeks from now.

For J, the maximum time limit is approximately seven months from now. [ 38 ] There are four areas of concern identified by the Minister: the chronically sub-standard condition of the children’s home and physical care; the children’s allegations their mother has abused them; the children’s conditions and the attendant need for treatment and constant constructive parenting; and the children’s exposure to conflict and domestic violence. [ 39 ] Ms. B is candid about the family’s situation. None of the children’s fathers “were ‘fathers’ in any way other than their biological purpose.

They did not support [her] financially, emotionally, or any other way.” Support from her own family has “been troubled – it’s been up and down.” There have been disagreements with her family, including disagreements with Ms. G. As a result, Ms. B has been left on her own to do what she can for her children. Her financial circumstances have never been secure and her children have a number of special needs that require a high level of constructive parenting. A psychological assessment and a parental capacity assessment show that Ms. B isn’t able to provide that to her children, though she has done her best.

According to her previous counsel, at one point, Ms. B arranged for her own counseling (in addition to that provided by the Minister), paying for it with money provided to her by Victim’s Services. [ 40 ] Ms. B understands that her children “especially the oldest two, have suffered because of the difficulty that [she] was having holding things together”. [ 41 ] My decision is to be based on the children’s best interests, so I turn to consideration of subsection 3(2) of the Act .

I am particularly mindful of: the importance of continuity of the children’s care, the children’s mental and emotional needs and the appropriate treatment to meet those needs, the level of the children’s mental and emotional development, and family relations. The children have had enhanced foster care since August 2011. This has been integral to those gains J has made in her improved behaviour at school. J, in particular, has required counseling and C attends a developmental daycare.

Through the Minister’s involvement, the children have received the assistance they need. [ 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, neighbour or other member of the children’s community or with extended family. Here, no such placement has been identified for J or C. [ 43 ] Ms. B says “I do not think that I could find enough words to convey how hard this has been for me.” She repeatedly speaks of

trying her best and wanting the best for her children. She says that she has tried, to the best of her ability, to work with the services provided to her. She accepts that she’s had trouble maintaining a household that is acceptably clean and safe for the children and acknowledges that there’s been conflict in her personal relationships. As a parent, she has made the difficult admission that her children have suffered as a result of her circumstances. [ 44 ] Like Ms. B, I cannot find the words to describe her decision. It is agonizing to think of allowing one’s children to live with someone else.

It is heart-breaking to consider that a child may not remember her mother. There is a world of regret in recognizing that a one’s problems have caused one’s children to suffer. [ 45 ] I understand that Ms. B has made the decision to not oppose the Minister’s application - not because that is the easy decision, but because it is the best decision she can imagine making for her children.

I do not view her decision to not oppose the Minister’s application as implicit consent to the Minister’s application. [ 46 ] Where the Minister’s application is unopposed, I still bear the burden of considering the evidence and the requirements of the Children and Family Services Act and determining whether to grant the Minister’s application for permanent care and custody of the children. I have read the materials the Minister filed. I have conducted the analysis required by the legislation.

I conclude that it is appropriate, under the terms of Children and Family Services Act and in the children’s best interests, that I grant the Minister’s application for permanent care and custody of J and C. Order for no access [ 47 ] The Minister asks that I order there be no access between Ms. B and the children. This request is pursuant to subsection 47(2) of the Act . Ms.

B has not asked that I make an order for access, though she has asked me to consider various requests relating to the termination of her contact with J and C. [ 48 ] A decision with regard to access following a permanent care order is not one which requires me to consider the children’s best interests. [ 49 ] According to subsection 47(2), I may not make an order for access unless I’m satisfied that one of certain circumstances enumerated in that subsection exists. Access may be available where an adoption isn’t planned or where some other special circumstance justifies the access order, for example.

I have evidence from Kandi Swinehammer that adoptions are planned for J and C and that an ongoing access order may impair the prospect of their adoption. In these circumstances, I grant the Minister’s request that there be an order for no access. Ms. B’s requests [ 50 ] Ms. B has made a number of requests. [ 51 ] First, Ms. B has access scheduled with J and C until the end of October. She asks that her access continue “until at least November and gradually drop off rather than abruptly be cut off”. [ 52 ] Second, Ms. B’s access with J and C is generally at the Agency’s office.

She asks that she and the children “be able to do something special at one of those visits and not be stuck in an office. [She] would like at least to be able to get some photographs taken and some things like that.” [ 53 ] Third, Ms. B says she does “not know what to tell” the children. She asks for “some assistance as to what to tell the children as to why [she] will not be seeing them anymore for a while.” [ 54 ] Fourth, M resides with a family member. M wants contact with J and C. There may be future contact between M and Ms. B. Ms.

B asks for an openness agreement which would allow her some information about J and C from the Agency (perhaps pictures and the chance to write to them, re-assuring them that she “did not and would never give up on them”). She’d like to maintain record of her current address and telephone number so “the girls can stay in touch with me as I want them to always know that I have never forgotten them and would always welcome contact.” [ 55 ] I have read the reports of Tara Sheaves and Heather Wayne, the access facilitators, and Anne Hartling-Briggs, the family skills worker.

The family has, in the past, had visits outside Agency offices without incident and, on a few occasions, family pictures have been taken. They have had special visits to celebrate birthdays. [ 56 ] I am assured by the Minister’s counsel that Ms. B’s requests with regard to scheduled visits, tapering off visits, having a special visit with photographs and the chance to provide the children with keepsakes are accepted by the Minister.

Gradually tapering off visits is recommended by Wendy Green, who prepared a parental capacity assessment for the Minister in June 2012. [ 57 ] At age nine, J is capable of remembering her relationship with her mother and how their contact ended. It’s not clear what C will remember. Their memories must be ones which don’t leave them feeling abandoned, rejected or responsible for their mother’s absence. On occasion, Ms. B has shown her emotions during visits with the children. Upcoming visits have the potential to be extremely emotional. To ensure that these visits go well for the children, it’s critical that Ms.

B is supported with advice on how to act, what to say (or not say), how to explain what is happening in ways that are appropriate to the children’s ages and developmental levels, how to answer the children’s questions and discuss the future, what are appropriate keepsakes and what to expect in this process. The Minister can provide Ms. B with assistance so that she can ease and support the children’s transition and so that she can cope with the absence of her children and ensure her own good mental health. [ 58 ] Ms.

B’s requests are in keeping with legislation’s purposes of protecting children from harm, promoting the family’s integrity and assuring children’s best interests. The gradual reduction of contact between the children and Ms. B, accompanied by age-appropriate explanations, will respect the children’s attachment to their mother. It will ensure they understand the importance of family relationships

so they can, in the fullness of time, appreciate what their mother has done. [ 59 ] The children’s future is not yet determined. While C’s memories may be dim, the children are unlikely to forget their mother and her family. Social media make it very easy for a child to locate and contact an absent parent. Having made the difficult decision not to oppose the Minister’s application, even at this early stage it may be useful to provide Ms. B with assistance so she understands how to support the children in the long term, particularly if they attempt to contact her. [ 60 ] In her affidavit, Ms.

B says that she loves her children very much: “They are the world to me and I want nothing other than what is the very best for them.” It is clear from her choice to do her best to ensure that J and C will not be separated from each other that Ms. B understands the support the children can offer each other. __________________________________ Elizabeth Jollimore, J.S.C. (F.D.) Halifax, Nova Scotia