Nova Scotia (Minister of Community Services) v. S.P., 2020 NSSC 262

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Nova Scotia (Minister of Community Services) v. S.P., 2020 NSSC 262 Date: 2020-10-29 Docket: SFH CFSA 110018 Registry: Halifax Between: Minister of Community Services Applicant v. S.P. and M.S. Respondents LIBRARY HEADING Judge: The Honourable Justice R. Lester Jesudason Heard: October 10, 2019, July 28, 29, 30, 2020, September 18, 2020 Last Written Submission: September 23, 2020 Written Release: October 29, 2020

Summary: Application by Minister for permanent care and custody of two children. Application allowed. Key words: Permanent care and custody, best interests of the children, family violence, domestic violence. Legislation: Children and Family Services Act , S.N.S. 1990, c. 5 . THIS INFORMATION SHEET DOESN’T FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Nova Scotia (Minister of Community Services) v.

S.P. , 2020 NSSC 262 Date: 2020-10-29 Docket : SFHCFSA-110018 Registry: Halifax Between: Minister of Community Services Applicant v. S.P. and M.S. Respondents Judge: The Honourable Justice R. Lester Jesudason Heard: October 10, 2019, July 28, 29, 30, 2020, September 18, 2020 Last Written Submission: September 23, 2020

Written Release: October 29, 2020 Counsel: Amanda M. Dillman, for the Minister of Community Services Linda M. Tippett-Leary for S.P. Iain Burton, for M.S. (watching brief only) 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: 1.0 Overview [ 1 ] The Minister of Community Services has applied for permanent care and custody of two boys, J and T, who are 10 and 4, respectively.

The Minister claims that the evidence establishes that: • J and T have been and would remain at a substantial risk of physical harm, emotional abuse, neglect and exposure to domestic violence if left in either parent’s care pursuant to sub- sections 22(2) (b), (g), (i), (

j) and (

k) of the Children and Family Services Act , S.N.S. 1990, c. 5 , (“ CFSA ”); • There are no reasonable services to provide to the parents which are adequate to protect the children; • The circumstances placing the children in need of protective services have persisted well beyond the maximum time limit allowed under the CFSA ; and • It’s in the best interests of J and T to be placed in the Minister’s permanent care and custody. [ 2 ] Ms. P, the children’s mother, seeks to have the Minister’s application for permanent care dismissed and have J and T returned to her care. [ 3 ] Mr.

S, the children’s father, while fully participating for most of this proceeding, didn’t participate in the final disposition hearing. His lawyer attended in a watching capacity only and confirmed that Mr.

S: • Wasn’t contesting the Minister’s application for permanent care; • Wished to “withdraw” the affidavits he previously filed in this proceeding; and • Agreed that, in the event the Minister’s application for permanent care and custody was dismissed, he wouldn’t seek any access with the children unless an order was obtained under the Parenting and Support Act , S.N.S. 2015, c. 44 , (“ PSA ”) allowing him to do so. He agreed the Minister would be provided with notice of any PSA application. [ 4 ] Ms. P and Mr. S also had an older boy, N, who had been part of this proceeding.

However, at a judicial settlement conference held

on February 28, 2020, it was agreed that N, who was 12 at the time, would be placed in the Minister’s permanent care and custody without objection by the parents. [ 5 ] This proceeding started on May 18, 2018 - over 29 months ago. The children were removed from Ms. P’s care in October 2018, over two years ago, and placed in the Minister’s temporary care and custody. The maximum statutory time limit ended on October 11, 2019, but was extended at the request of the parties. Clearly, this proceeding has gone on far longer than is desirable. [ 6 ] The

preamble to the CFSA , recognizes that children have a sense of time that’s different from adults and that services provided and proceedings taken under the CFSA must respect the children’s sense of time. For J and T, having their fates in limbo while living in foster care for over two years likely seems like an eternity. [ 7 ] I acknowledge that during the course of this lengthy proceeding, Ms. P has made some progress in addressing some of the child protection concerns. I commend her for this.

I also have much sympathy for the considerable challenges she has faced in her life and accept that she genuinely believes that J and T would be safe from any substantial risk of harm if now returned to her care. However, decisions made under the CFSA mustn’t be made based on parents’ beliefs or feelings of sympathy for parents whose circumstances may be extremely challenging. Rather, the paramount consideration upon which decisions must be made are the best interests of the children: section 2(2). [ 8 ] Unfortunately, there hasn’t been enough progress made by Ms.

P over the many months it took this matter to come to trial to allow me to safely return the children to her care. Thus, I regrettably conclude that it’s in the children’s best interests that they be placed in the Minister’s permanent care and custody. My reasons follow. 2.0 Background/History of Proceeding [ 9 ] Ms. P and Mr. S had voluntary involvement with the Agency from August 2011 to February 2013. During that time, N and J spent three months in the care of their paternal grandfather and his partner. T wasn’t yet born.

The Agency’s primary concerns related to inadequate supervision, inadequate parenting skills and risk of physical harm. Ms. P and Mr. S engaged in services and the Agency closed its file. [ 10 ] In 2015, several new referrals were received from N’s and J’s school. The Agency opened an intake file which it subsequently closed in February 2016 after being satisfied that all the child protection concerns had been adequately addressed. [ 11 ] The current Agency involvement began in February 2018 when a referral was received from N’s and J’s school.

The concerns included: • N and J having toileting issues and often soiling themselves (urinating and defecating) at school; • N being physically aggressive; and • J coming to school without a lunch and appearing as being “underfed”. [ 12 ] The Agency conducted an investigation into the allegations which included speaking with Ms. P, Mr. S, N and J. [ 13 ] On May 18, 2018, the Minister commenced this proceeding. The primary child protection concerns related to allegations of neglect, risk of physical harm, inadequate parenting skills, domestic violence and concerns over Mr. S’s cognitive functioning.

The Minister requested an order placing all three children in the care and custody of Ms. P, subject to the Minister’s supervision. [ 14 ] The interim hearing was started on May 24, 2018, and completed on June 13, 2018. On both dates, an order was granted placing the children in the care and custody of Ms. P, subject to the Minister’s supervision, with access provided between Mr. S and the children. [ 15 ] On August 1, 2018, with the consent of both parents, N, J and T were found to be in need of protective services. The children’s placement with Ms.

P continued. [ 16 ] A Disposition Hearing was held on October 11, 2018. By consent, the children’s placement in Ms. P’s care, subject to the Minister’s supervision, continued. The Disposition Order also provided that both parents would participate in individual counselling and in parent education and support. [ 17 ] On October 18, 2018, the children were taken into the Minister’s care as a result of concerns relating to neglect, unfit living conditions, inadequate parenting skills as well as the parents’ resistance to working with the Agency in addressing these concerns.

Specifically, in the weeks before the children were taken into care: • Agency employees, who had attended the parents’ home to provide guidance and support in relation to the children’s toileting and incontinence issues, repeatedly observed an overwhelming smell of urine in the home, the children’s beds and N’s curtains being soaked with urine, and, on one occasion, feces on the floor;

• The employees claimed that Ms. P and Mr. S confirmed that they were aware of the presence of urine yet hadn’t acted to address the situation in any meaningful way; and • Information was received from N’s and J’s school alleging that the children had poor hygiene in addition to being unkempt and having insufficient clothing. [ 18 ] On October 25, 2018, an Order was granted confirming the children’s placement in the Minister’s temporary care and custody. This Order has been renewed on several occasions. Each time, Ms. P and Mr.

S consented that the children remain in the Minister’s care. [ 19 ] For several months after the children were taken into care, the Minister indicated that the plan was for family reunification. However, this changed on July 10, 2019, when a new Agency Plan for the Children’s Care was filed seeking that all three children be placed in the Minister’s permanent care and custody. [ 20 ] The statutory maximum time limit ended on October 11, 2019.

The timeline was extended at the request of the parties because they weren’t ready to conduct a hearing and they all agreed that it was in the best interests of the children that the timeline be extended. At their request, they were subsequently given hearing dates beginning in March 2020 and settlement conference dates in November 2019 and February 2020. [ 21 ] At the settlement conference held on February 28, 2020, it was agreed that N would be placed in the permanent care and custody of the Minister without objection by Ms. P and Mr. S.

The Order for permanent care and custody provided that, “Less intrusive alternatives, including services to promote the integrity of the family have been attempted and have failed, have been refused by the parent or guardian, or would be inadequate to protect [N]”. [ 22 ] The final hearing was scheduled over five days beginning in March 2020 but was removed by agreement because of the Covid-19 health pandemic. The parties appeared before me by telephone on May 27 th .

While in-person hearings were still being restricted because of the health pandemic, given my concern about the delay in having these children’s futures determined, I arranged for an in-person final disposition hearing to be scheduled for July 27-31, 2020. I encouraged the parties to try to limit the number of witnesses who would be required to attend the hearing in person and to try to streamline the evidence.

While the parties’ original witness list contained over 20 proposed witnesses, the hearing only required five witnesses to appear because much of the evidence from other witnesses was admitted by agreement without requiring any cross-examination. I am grateful to the parties for their efforts to streamline the evidence. I am also grateful for the considerable efforts of court staff in making the necessary arrangements to ensure the health and safety of all the participants who attended the in-person hearing. [ 23 ] The Minister and Ms.

P filed lengthy written closing submissions in August and the parties appeared by phone on September 18, 2020, to answer questions in relation to those submissions. On September 23, 2020, Ms. P filed a Notice of Application under the PSA . In her accompanying Parenting Statement, she requested an order which provides that the children will be in her sole care and custody with no parenting time for Mr. S until otherwise ordered by a court after Mr.

S made a successful application for same with notice to the Minister. 3.0 The Law [ 24 ] The purposes of the CFSA are to protect children from harm, to promote the family’s integrity and to assure children’s best interests: subsection 2(1) . [ 25 ] In CFSA proceedings, the children’s best interests are paramount. At different points in a child protection proceeding, the CFSA 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 enumerated circumstances which are relevant.

I broadly group them into five general areas: the child’s existing relationships; the child’s present needs; the child’s preferences if they are reasonably ascertainable; future risk; and other relevant circumstances. [ 26 ] This is an application for a final disposition order. The maximum statutory deadline has already been exceeded. I am required to consider the best interests of the children. The only options open to me under subsection 42(1) are: (

a) Dismiss the matter and return the children to the care of Ms. P; or (

b) Place the children in the Minister’s permanent care and custody. [ 27 ] In T . B. v. Children’s Aid Society of Halifax , 2001 NSCA 99 , Justice Saunders describes in paragraph 24 the limited options available to me once the maximum time limit is reached as follows: As the proceeding nears a conclusion, the opportunity to grant disposition orders under s. 42(1)(

c) diminishes until the maximum time is reached at which point the court is left with only two choices: one or the other of the two “terminal orders”. That is to say, either a dismissal order pursuant to s. 42(1)(

a) or an order for permanent care and custody pursuant to s. 42(1)(f). [ 28 ] At paragraph 26 of that same decision, Justice Saunders noted that “temporary placement with a relative, neighbours or other extended family is no longer available” once the maximum time limit is reached, so this can’t be considered. 4.0 Burden of Proof

[29] The Minister bears the burden of establishing on a balance of probabilities that the children continue to be in need of protectiveservices and that a permanent care order is in their best interests: Catholic Children’s Aid Society of Metropolitan Toronto v. MC, (SCC), [1994] 2 S.C.R. 165 at paras. 37-38. To answer the question of whether the children are in need of protective services,it is necessary to consider both the needs of the children and the capacity of their parents to meet them: Nova Scotia (CommunityServices) v.

V.A.H., 2019 NSCA 72. 5.0 Substantial Risk [30] The Minister alleges that J and T would be at a substantial risk of physical harm, emotional abuse, neglect and exposure todomestic violence if returned to Ms. P’s care. [31] “Substantial risk” is a real chance of danger that is apparent on the evidence: subsection 22(1) of the Children and Family ServicesAct. It is the real chance of physical or emotional harm or neglect that must be proved to the civil balance of probabilities standard.

Thatfuture physical or emotional harm or neglect will actually occur need not be established on a balance of probabilities: MJB v. Family andChildren Services of Kings County, 2008 NSCA 64 at paragraph 77. [32] If the Minister doesn’t establish that the children continue to be in need of protective services, then the children must be returned toMs. P. If the Minister establishes that the children continue to be in need of protective services, I must consider the children’s bestinterests, as between being placed in the Minister’s permanent care and custody or being returned to Ms.

P: Catholic Children’s AidSociety of Metropolitan Toronto v. M.C, (SCC), [1994] 2 S.C.R. 165 at paras. 37-38; s. 42(1) of the CFSA. 6.0 The Children [33] The paramount consideration is J and T’s best interests. Because it’s their futures which are at stake here, I will start by discussingthem. [34] The parties agree that both boys have complex and ongoing needs.

They also agree that when all three children were initially takeninto care, the older boys, N and T, had long-standing issues with bedwetting and soiling themselves. [35] The Minister says that, despite regular attendance at appropriate services since they have been in the Minister’s care, J and T stillhave significant, complex, and ongoing needs which will continue.

I won’t summarize all the evidence relied upon by the Minister buthighlight the following: J • In her affidavit sworn on February 21, 2020, (Exhibit 3, Tab 31, Paragraphs 7-8), J’s child-in-care social worker states: “J presentswith behaviours including outburst/defiant behaviours, “shutting down” behaviours, and lying.

It has been noted that J tends to targetfemales with his outbursts… J has reports that he often gets distracted…there have also been issues around J not completing hishomework… teachers have noted that J has difficulty with printing and math.” • J required a significant amount of dental work, some of which has been completed and some of which is ongoing. • J continues to attend counselling with Rae Shaw to assist him in developing coping skills and work on how he acts out his distressin behaviours. • J is engaged with occupational therapy for an assessment regarding daily living skills including toileting. • J continues to have significant issues with bedwetting.

T • In her February 21, 2020, Affidavit (Exhibit 3, Tab 32), T’s child-in-care social worker sets out T’s services which included dentalsurgery, ongoing follow up for lazy eyes at the IWK Eye Clinic, referral for assessment regarding possible processing and other delays atIWK Psychology, ongoing Early Intervention, and ongoing speech and language therapy. • In the report of Susanne Cassidy Duggan of At Home Speech & Language Services dated April 24, 2020, Ms. Duggan notes that Tshowed “at least a moderate delay” in Receptive Language development and was “moderately to severely delayed” in Express Language.Ms.

Duggan recommended that T continue regular speech-language pathology services to address gross/fine motor cognitive skills andactivities of daily living and also complete a psychological assessment to address cognitive-linguistic weaknesses. [36] Plainly, given J and T’s significant ongoing needs, their long-term placements require them to have caregivers who will supportthem and ensure their needs are appropriately met. 7.0 Ms. P’s Strained Working Relationship with Ms. W

[ 37 ] Before I analyse the main areas of concern raised by the Minister in relation to Ms. P’s inability to meet the children’s ongoing needs, I will spend some time discussing Ms. P’s working relationship with Ms. W, the Agency’s long-term worker assigned to Ms. P and Mr. S. I will do so because both the Minister and Ms. P make extensive submissions on this issue. Both assert that the poor working relationship between Ms. P and Ms. W negatively impacted on progress being made in relation to the child protection concerns and both assign responsibility for same largely on the other party. [ 38 ] Ms.

W has been a long-term worker employed by the Agency since November 2015. She testified that her duties and responsibilities include providing monitoring of ongoing risk to children and providing access to services for parents to address child protection concerns with the goal being family reunification if it is in the children’s best interests. [ 39 ] The Minister says that Ms. P exhibited hostile behaviour to Ms. W and other Agency workers and asserts that Ms. P’s “combative behaviour” impeded progress from being made. [ 40 ] Ms. P, on the other hand, expresses concerns about Ms.

W and Agency workers and suggests that, when she raised legitimate concerns, they fell on “deaf ears”. [ 41 ] In many respects, assigning blame for the difficulties in Ms. P’s and Ms. W’s working relationship isn’t helpful. Again, the paramount consideration here is J and T’s bests interests as opposed to Ms. W’s and Ms. P’s working relationship. As I stated in Nova Scotia (Minister of Community Services) v. A.L. , 2019 NSSC 236 : …child protection proceedings are not about punishing parents or the Minister.

Rather, they are about taking positive steps to ensure that children are protected from harm and addressing any child protection concerns so that children can hopefully be safely returned to their parents’ care in a manner consistent with the children’s best interests (para. 67). [ 42 ] However, given that both parties have spent considerable time addressing the strained working relationship between Ms. W and Ms. P, and how it negatively impacted on progress made by Ms. P, I will address the issue rather than simply ignore it. [ 43 ] Given the problems in their working relationship, Ms.

P requested a new long-term worker be assigned. Ms. W testified that, in light of the request, she consulted with her supervisor about this. She said that both she and her supervisor felt that a new worker should not be assigned. Thus, Ms. W remained Ms. P’s long-term worker and the strained relationship continued. [ 44 ] In her closing submissions of August 12, 2020, Ms. P’s counsel describes the problems caused by Ms. P’s strained working relationship with Ms. W as follows: “There were clear difficulties in [Ms. P’s] relationship with the worker, [Ms. W].

Difficulties that were not present in her dealings with other professionals. Ms. Trottier [Ms. P’s counsellor] and Ms. MacLeod [Ms. P’s family support worker] both indicated that [Ms. P ]was always polite and respectful in their dealings with her and neither of them required another person along while their service was being delivered. Both Jackie Barkley and Colleen Armstrong (the latter as directed by the worker) insisted that the worker had to be along when they were working with [Ms. P] and that simply was not going to work. [Ms. P] was not comfortable with [Ms. W].

Susan MacLeod observed, according to her testimony, a marked difference in [Ms. P’s] demeanor when [Ms. W]was around and when she was not. Without pointing fingers and blaming everyone, not everyone is a good fit for other people. … Trying to deliver any kind of service where my client is supposed to learn something with [Ms. W] there was just an invitation to disaster with a total set up to fail. Without blaming anyone, that is simply a fact, but the request to change the worker simply went on deaf ears.

The difficulty is that when the case plan is reunification and the best interests of the children, setting my client up to fail by making them work with someone that she clearly has no working relationship with is very difficult to understand. [Emphasis added]. [ 45 ] Similarly, when Ms. P asked that Ms. W not be present during meetings with service providers, Ms. P’s lawyer describes the Agency’s response as follows: “It just went on the dea[f] ears of an agency that was not willing to budge and was not listening to her. It created roadblocks.

We wasted time. ” [Emphasis added]. [ 46 ] In the Minister’s written submissions dated August 12, 2020, the Minister’s counsel says: “…Ms. W testified that: • She acted ethically and discharged her duties vis-à-vis [Ms. P] and this family. • That her relationship with [Ms. P] was “challenging and volatile at times”. • “Fit” is important as it relates to service providers as they are attempting to engage [Ms. P]. “ Fit” is less important between the long-term social worker and [Ms. P] because the Agency’s direction would remain the same regardless of who was implementing it.

Agency decisions are made as a team with the guidance of a Casework Supervisor. • It is not the Agency’s practice to reassign social workers when a parent does not like working with them.” [Emphasis added]. [ 47 ] In the reply submission of Ms. P dated August 19, 2020, Ms. P’s counsel responds as follows: “At no time did we ever say that [Ms. W] was unprofessional or did not try to do her job. What we said was that there was a clear personality clash (not blaming anyone) and that this clash was impeding the reunification plan as it was obvious to everyone.

It derailed the service with Colleen Armstrong as discussed above and in my previous brief. My learned friend states that my client had poor relationships with previous workers also – referring to the intake worker, [MG], and the supervisor [RJ]… [MG] was the one who removed the children – my client had difficulty dealing with this at first. Many parents do. [RJ] was the supervisor and my client felt that she was just not being listened to, and that her concerns fell on deaf ears… To even suggest that [Ms. W] had to accompany [Ms.

P] to essential service appointments like Colleen Armstrong and Jackie Barkley is an invitation to failure. The agency does not see this and still clearly does not. It is not everything – in our view, we still think it a factor. ” [Emphasis added]. [ 48 ] When I consider the evidence, and the parties’ respective assertions, I agree that Ms. W acted ethically when discharging her duties. I also commend Ms. W for a number of things she did such as facilitating Ms. P being connected with multiple service providers in order to find a good fit for Ms. P. I believe that Ms.

W genuinely wanted to see the child protection concerns adequately addressed so that J and T could be reunified with Ms. P. Again, this is commendable. Where I respectfully disagree, however, with both Ms. W, and apparently her supervisor, is that “fit” is somehow “less important” between a long-term social worker and a parent. [ 49 ] Clearly, the long-term worker is one of the principal individuals of the Agency who a parent, like Ms. P, is expected to work with in terms of addressing the child protection concerns. As Ms.

W testified, some of the primary responsibilities of the long-term worker are to work with the parent to address the ongoing child protection concerns and provide access to services with the goal being family reunification. Thus, for the Agency to suggest that “fit” between the long-term social worker and a parent is of “lesser importance” when working towards the laudable goal of family reunification is, in my view, misplaced and fails to recognize the importance of the working relationship between the social worker and the parent. [ 50 ] Here, clearly the strained working relationship between Ms. P and Ms.

W became a significant barrier to progress being made in addressing the child protection concerns. This barrier became obvious to all. One would therefore hope that serious consideration would have been given as to how to remove this barrier, as opposed to simply leaving it in place and suggesting, as Ms. W did, that fit is of lesser importance because the Agency’s direction would remain the same regardless of who was implementing it.

With respect, such a response fails to recognize the nuances of the dynamics in the social worker/parent relationship where the parties are expected to meaningfully cooperate in addressing the child protection concerns. Furthermore, to a parent like Ms. P, receiving such a response could reasonably lead to a conclusion that their concerns are, as her lawyer suggests, “falling on deaf ears”. It fails to recognize that sometimes

barriers to addressing child protection concerns can be created not so much by the message that is conveyed, but, rather the messenger who conveys that message. [ 51 ] This isn’t to say that the Agency must simply change long-term workers at the whim of a parent. No doubt, being a social worker is a tough and often thankless job and parents may sometimes unfairly direct and personalize their frustrations towards the social worker. Also, while not raised as a rationale by Ms. W for the refusal to assign a new long-term worker, I can accept that Agency resources are limited.

Thus, parents can’t simply expect social workers to step aside and blatantly refuse to cooperate with social workers every time they hear something from a social worker which they don’t like or agree with. Rather, like all parties in a child protection proceeding, they must be prepared to put their own views and preferences aside and focus on what’s in the children’s best interests. Social workers should treat parents with respect and openly communicate with them.

Parents, in turn, must try to gain insight into the child protection concerns and address them in a constructive way no matter how upset they may be at the social worker.

At the end of the day, the big picture should and must remain the children’s best interests as opposed to any personality clashes between the parent and the social worker. [ 52 ] However, when a strained working relationship between the parent and the social worker becomes such an impediment that everyone recognizes it as impeding progress from being made, a change in the worker should be seriously considered on its merits and not summarily dismissed simply because the message back to the parent will not change. Here, Ms.

W testified that she and her supervisor concluded that a new worker shouldn’t be assigned because the Agency’s direction to Ms. P would be the same. Again, that simple conclusion, even if accurate, fails to recognize the unique situation here where it became clear that the working relationship between Ms. P and Ms. W became so strained that it created real barriers to progress being made in relation to the child protection concerns. It remained an obvious barrier which simply couldn’t be overcome during the many months of this proceeding when the Minister’s stated goal remained a return of the children to Ms.

P’s care. I agree with Ms. P’s counsel that this barrier “wasted time” in progress being made during the statutory time limits. [ 53 ] It’s most unfortunate that this occurred. Ms. P’s counsel, who has considerable experience in child protection matters, aptly describes some of the dynamics at play in Ms. P’s and Ms. W’s working relationship as follows in Ms.

P’s written reply submissions of August 19, 2020: “[Parents] are subjected to multiple appointments with social workers that have taken their children away and naturally they do not look favorably on them in the beginning - yet they are supposed to have a working relationship . Most do. A change in workers is not common unless the worker themselves leave. But there are some circumstances such as this where the situation is extreme and where the presence of a certain worker is impeding the case plan and I submit it was there. I am not blaming [Ms. W], I am in no way calling her unprofessional.

I am simply stating it is just a poor fit with this particular client.” 8.0 The Minister’s Main Areas of Concern About Ms. P’s Ability to Appropriately Parent the Children [ 54 ] In the Minister’s lengthy post-trial submissions of August 12, 2020, the Minister advances a number of areas of concern in support of why J and T would be at a substantial risk of concern if returned to Ms. P’s or Mr. S’s care and why it’s in the boys’ best interest to be placed in the Minister’s permanent care and custody. To the extent Mr.

S is not opposing the Minister’s plan for permanent care, I will focus my discussion on the main areas of concern relating specifically to Ms. P. I will start with addressing concerns of the Minister which I don’t find to be persuasive. 8.1 Ms. P’s Limited Access [ 55 ] On September 16, 2020, the Minister filed an Agreed Statement of Facts which provides that, during the time the children were in the Minister’s temporary care, Ms.

P.’s access progressed as follows: • From October 2018 to January 21, 2019 [sic = December 11, 2018?] she had two in-person access visits per week for 1.5 hours each at the Agency office. • On December 11, 2018, her access was moved into the community (still occurring two times per week for 1.5 hours each). • On January 21, 2019, Ms. P’s access was changed (at her request) to three in-person access visits per week for one hour each to accommodate her schedule. These visits occurred in the community. • In March 2019, due to the Minister having safety concerns around Ms.

P making accusations against Case Aides supervising her access, her access returned to the Agency Office (instead of the community) and two case aides were present for each visit. • On April 25, 2019, Ms. P reported that she would only be available for access once per week, on Wednesday, because of her work schedule. Due to Ms. P’s time availability and the children’s school schedules, access was 1.5 hours, once per week (on Wednesdays) at the Agency office, supervised by two case aides. • On January 16, 2020, Ms. P agreed to Ms. W’s suggestion of a second access visit with transportation assistance for Ms.

P from work to the Agency office. This resulted in Ms. P having one access visit of 1.5 hours on Wednesday and a second access visit of 1 hour

another day of the week. Both visits were at the Agency office and both were supervised by two case aides. • During the Covid-19 pandemic, Ms. P had virtual access with the children. Ms. P expressed concerns about the virtual access because of J’s disinterest and T’s speech issues. • In June 2020, in-person access resumed, and Ms. P is currently having one in-person access visit per week for one hour. There were phone calls with each child once per week, but because Ms. P continued to express reoccurring issues with virtual access, it ended. [ 56 ] Ms. W testified that Ms. Ps access was an “unusually low amount of access for a parent in a child protection proceeding”, but that this

schedule was set up at Ms. P’s request to accommodate her work schedule. The Minister says that this limited amount of access doesn’t provide an opportunity for Ms. P to demonstrate adequate parenting skills. Furthermore, the Minister asserts that while Ms. P was able to manage access during the limited times which were arranged, this isn’t an indication that she can parent the children or be responsible for their needs outside the confines of two hours of supervised parenting time at the Agency office. [ 57 ] I find the Minister’s concerns about Ms. P’s “limited access” to be largely unpersuasive.

I say this for the following reasons: • First, as acknowledged by the Minister in her post-trial submissions, “the evidence before the Court is that Ms. P was consistent in her access attendance overall” and it could be “accepted that overall access went well”. Thus, I’m not prepared to speculate, solely based on what the Minister describes as Ms. P’s “limited access”, that things would be drastically different if Ms. P was given more access time with the children. • Second, Family Support Worker, Susan MacLeod, observed Ms. P having supervised visits with the children.

She testified that she likely observed her in a parenting role about 20 times. During those access visits, she indicated that she observed Ms. P to be appropriate with the children, planned well, and had good snacks and appropriate activities for the children. • Third, while I accept that Ms. P’s employment

schedule created practical difficulties in arranging for more access with the children, I don’t see that as a reason to be critical of the amount of Ms. P’s access. To the contrary, during the course of this stressful proceeding, Ms. P was able to complete her educational program at Nova Scotia Community College and then obtain full-time employment in the hotel industry. In my view, she should be commended for these efforts and I find it unfair for the Minister to now be critical of Ms. P’s access being “unusually low” for a parent in a child protection proceeding.

Unfortunately, the reality is that many parents in child protection proceeding face societal disadvantages and, for various reasons, come before the court without being able to secure or maintain gainful employment. As aptly noted by Justice Jollimore in Nova Scotia (Minister of Community Services) v. S.C. 2017 NSSC 336 , often parents in child protection proceedings face poverty and, when having limited means, often are faced with having limited choices. Here, the fact that Ms.

P would complete her education and then obtain full- time employment while under the pressure of a stressful child protection proceeding to increase her options is commendable. They are commendable steps she took not just for herself but, more importantly, for her children in the event they were returned to her care. • Finally, the Agency denied Ms. P’s request, and the request of her service providers at the North End Parent Resource Centre (Jo Andrea and Charlene Watts), to move her visits back into the community at the North End Parent Resource Centre which was more convenient for Ms.

P and had more space for her to visit with all three children. Had that request been allowed, Ms. P may have been able to commit to more regular access. [ 58 ] Thus, the Minister’s stated concerns about Ms. P’s limited access fail to satisfy me that J and T would be at a substantial risk of harm if now returned to her care. 8.2 Psychological Assessment of Ms. P with Jennifer Denney-Hazel [ 59 ] Ms. Denney-Hazel met with Ms. P for an assessment on December 12 and 13, 2018. Her report was received by Ms. W on April 23, 2019. Ms.

Denney-Hazel was qualified by consent as an expert in psychology. [ 60 ] The Minister relies heavily on Ms. Denney-Hazel’s conclusions and asserts that they support that the children would be at a substantial risk of harm if now returned to Ms. P’s care. Specifically, the Minister emphasizes the following conclusions of Ms. Denney- Hazel:

• While Ms. Denney-Hazel didn’t feel that the information supported that Ms. P had a personality disorder diagnosis or meet the criteria for a mental health diagnosis, the assessment results suggest that Ms. P may be unwilling to self-examine her role in difficult situations of prolonged distress and may react by behaving erratically. She may be driven to deny life’s more boring realities, including realistic limit setting and accountability for less-perfect outcomes; • Ms. P may not understand or value her children’s normal developmental needs; • It will be important for professionals working with Ms.

P to assess if she is meaningfully participating in services. Simple participation will not be enough. Ms. P will need to demonstrate understanding of the reasons why she requires assistance with a given service, meaningfully participate, and demonstrate attainment of measurable goals; and • Ms. P should participate in individual therapy and family support work and ensuring a social support network will be integral to Ms. P’s successful parenting. [ 61 ] I have carefully considered Ms. Denney-Hazel’s psychological assessment report with respect to Ms. P.

Having done so, I disagree with the Minister’s assertion that, by itself, it leads to a conclusion that the children remain in need of protective services. I say this for a number of reasons including the following: • First, nowhere in her report does Ms. Denney-Hazel say that Ms. P isn’t able to safely parent the children or that they would be at a risk of harm if in her care; • Second, while Ms. Denney-Hazel has raised some concerns and expressed opinions in relation to Ms. P, she doesn’t state the degree of certainty with which she holds those opinions.

While not always provided in child protection proceedings, generally experts, who provide reports, should state the degree of certainty with which they hold their opinions: Civil Procedure Rule 55.04(2)(c); • Third, Ms. Denney-Hazel only saw Ms. P once over a period of two days close to two years ago. Ms. W confirmed that the most recent material Ms. Denney-Hazel was given to review in relation to Ms. P was dated October 1, 2018. At that time, the children were still in Ms. P’s care and custody under a supervision order. Thus, Ms. Denney-Hazel’s opinions are based on fairly limited and dated information.

Her report doesn’t consider any more current information in relation to Ms. P including, but not limited to: - the children subsequently being removed from Ms. P’s care and the reasons for same; - Ms. P’s participation in recommended services including family support work and counselling as well as her level of progress in addressing the child protection concerns; and - Despite Ms. Denney-Hazel’s concerns about Ms. P’s ability to learn, during the course of this proceeding, Ms.

P was able to attend the adult learning program through the Nova Scotia Community College to obtain her high school diploma, retrain in a Hotel Works course, receive various additional certificates including a First Aid Certification and obtain full-time employment at a local hotel. • Finally, Ms. Denney-Hazel’s opinions are just that – opinions. They are not statements of fact. Opinions from experts in child protection matters, while helpful, aren’t necessarily determinative nor should they be simply accepted as quick substitutes for a careful weighing of all the evidence in a given case.

While judges should give the appropriate weight to the opinions of qualified experts, they must also consider all the factual information and evidence as to what parents actually do or don’t do when it comes to parenting and addressing any child protection concerns. Here, Ms. Denney-Hazel has never seen Ms. P in a parenting role. She was only given limited information to review and nothing new to consider in close to two years. Thus, while I have given appropriate weight to Ms. Denney-Hazel’s opinions, I have balanced her opinions against what the entirety of the evidence shows in relation to Ms.

P’s ability to appropriately parent the children should they be returned to her care. By itself, I’m not persuaded that Ms. Denney-Hazel’s psychological assessment report establishes that J and T would be in need of protective services if now returned to Ms. P’s care.

8.3 Ms. P’s Inability to Regulate Her Emotions [ 62 ] In the Minister’s pre-trial written submissions, the Minister suggests that the evidence is that Ms. P has been “resistant to the Minister’s involvement and combative and argumentative with the Minister’s representatives”. The Minister has suggested that, at times, Ms. P has been “hostile” to Agency Workers, particularly Ms. W. During her oral evidence, Ms. W said that one of the ongoing child protection concerns involving Ms. P was her “level of aggression”. [ 63 ] I agree with the Minister that Ms. P has shown resistance to the Agency’s involvement.

I also agree that, at times, she could be fairly described as being “combative” towards some Agency workers, particularly Ms. W. I disagree, however, with the characterization that Ms. P can be fairly described as generally being “hostile” or “combative” when it comes to her service providers or that the Minister has established that she suffers from general emotional regulation problems which would place the children at a substantial risk of harm if now returned to her care. [ 64 ] Two of Ms.

P’s key service providers, Danielle Trottier (counsellor) and Susan MacLeod (Family Support Worker) gave oral evidence in addition to their written evidence. Both worked with Ms. P in terms of addressing the issues of emotional regulation identified by the Agency. Neither expressed significant concerns about Ms. P’s ability to regulate her emotions during their sessions with her. [ 65 ] Ms. Trottier’s description of Ms. P was that Ms. P was “always pleasant and polite to her”. In her report of May 14, 2020, Ms. Trottier says that Ms.

P “has continued to present as calm and pleasant towards writer, and has demonstrated an ability to regulate her emotions during the therapy sessions”. [ 66 ] Ms. MacLeod testified she had as many as 100 sessions with Ms. P between her work done with her in 2011-2013 and as part of this proceeding from July 2019 onward. Ms. MacLeod described Ms. P as being “very cooperative and respectful” to her. On the other hand, Ms. Trottier said Ms. P was “just the opposite” with Ms. W and other Agency workers and felt that Ms. P would be “triggered” by Ms.

W’s presence and would become defensive and not open. [ 67 ] Charlene Watts, the Executive Director of the North End Parent Resource Centre, filed an affidavit in support of Ms. P’s request to have J and T returned to her care. Ms. Watts worked with Ms. P and was the facilitator of the Incredible Years program for school-age children. Ms. Watts described Ms. P as being “engaged”, participating in group discussions, and said that Ms. P shared ideas about what worked with her children and was open to new information. [ 68 ] Thus, in my view, it is unfair to broadly assert that Ms.

P is generally hostile or combative. It would be more accurate, in my view, to say that Ms. P did, on various occasions, exhibit anger to Ms. W or other Agency employees and, in some cases, was combative towards them. While I don’t condone that behaviour, this doesn’t translate to a conclusion that such behaviour rises to the level of a child protection concern if J and T were returned to her care. [ 69 ] Furthermore, at least some of Ms.

P’s behaviour can be understood as stemming from frustrations she had over legitimate concerns which arose once the children were removed from her care and placed in the Minister’s temporary care. Some of those concerns include that: • N, J and T went from living together in Ms. P’s home to being separated into three separate foster homes; • Due to a breakdown in placement, N and J had to change school twice; • J had an important pediatrician appointment at the IWK on October 22, 2018, to try to help deal with his bedwetting issues. The appointment had been made by Ms. P and had been scheduled for several months.

J’s child-in-care worker and his foster parent showed up at the IWK at 10:00 a.m. and were advised that J’s appointment wasn’t until 3:00 p.m. that day. Rather than ensure that J attended the appointment later that day, the child-in-care worker rescheduled the appointment resulting in further delay in J getting to see the pediatrician; • While the Minister decided to remove the children from Ms. P’s care partly because Ms. P and Mr. S were unable or unwilling to address N and J’s bedwetting issues, those issues continued after the boys were placed with foster parents.

Indeed, in the Minister’s written submissions dated August 19, 2020, the Minister states that the “most recent evidence on the point is that it has continued nightly and that the frequency increased in mid-April [2020]” (Exhibit 4, Page 67, Paragraph 12). Thus, clearly the children continued to struggle with their bedwetting issues despite being in the Minister’s care; • During an access visit Ms. P had with N on October 31, 2018, she saw that N had written “die” on his arm multiple times. When Ms.

P asked N why he wrote it, he said that he did it because he feels sad sometimes and it seemed to be the thing to do when people are

sad. The case aide noted that Ms. P responded appropriately telling N that he had lots of people who loved him in his life and they would be very sad if he was to hurt himself (Exhibit 1, Page 136, Page 9). • Ms. P expressed concerns about the boys’ appearance, state of hygiene and having inadequate clothing when they showed up to access visits after coming from their foster homes. Ms. P’s family support worker, Ms.

MacLeod, agreed that there were concerns about the condition of the boys and agreed that they, at times, looked “homeless”. [ 70 ] Clearly, all of the above concerns would understandably be upsetting to Ms. P. In her closing written submissions of August 12, 2020, Ms. P’s lawyer provides context for that upset as follows: “At no time was [Ms. P] being accusatory, at no time was she being disrespectful and at no time was she being antagonistic although she was very concerned about the way that her children were presenting.

They were coming to the visits improperly groomed, smelling bad at times, and not having the clothing that they needed for the visit. She mentions [T] walking around with wet socks. Even the family skills worker made the comment that the children looked “homeless”. This is noted and it was confirmed by Ms. MacLeod on the stand. My learned friend objected to this stating that it was not relevant that we were talking about how the children would do in my client’s care and not the agency’s care. With the greatest respect I beg to differ - it is “very relevant”. We are talking about the best interests of the boys.

We are talking about them being raised in agency care, separated with limited contact with each other and their biological family as opposed to being able to be raised by their parents with all the same services in place. This woman has been accused of being disrespectful, argumentative, and aggressive. It is not unreasonable for a mother to express concerns about how her children are being cared for, but the fact that they are separated, concerned about the children’s homework, how they are presenting, etc. - this is all through my client’s affidavits. It is all through my client’s notes to the foster mother.

It is all through everything. The best interests of these children, in every aspect of their lives is utmost certainly the major and primary concern of the court. To say otherwise is simply incorrect.” [ 71 ] Thus, when I consider the evidence about Ms. P’s level of aggression towards her service providers, I conclude that this was largely

limited to Agency employees and, in some cases, her behaviour, while not justified, was an understandable reaction to frustrations she was feeling once the boys were removed from her care and placed in the Minister’s care. Those frustrations can be viewed in the context of a parent who very much cares about her children and was concerned about their conditions after they were removed from her care. They don’t, in and of themselves, give rise to any ongoing child protection concerns. [ 72 ] I further conclude that Ms.

P has made sufficient progress on any issues of emotional regulation through the services provided to her, including her work with Ms. Trottier and Ms. MacLeod. Consequently, I find that the Minister’s present concerns about Ms. P’s inability to regulate her emotions do not currently give rise to a child protection concern which would put J and T at a substantial risk of harm if returned to Ms. P’s care. 8.4 Ms. P’s Lack of Support from Community-Based Resources [ 73 ] Ms. P began attending services at the North End Parent Resource Centre in March 2018.

The Centre’s Executive Director, Charlene Watts, filed an affidavit in this proceeding. Her evidence included: • When N and J were still in Ms. P’s care, they attended the Centre’s School Age Break program; • Ms. P completed the NoBody’s Perfect Parenting program in August 2018; • Ms. P attended the Incredible Years program for school age children from September 2018 to November 2018 and was engaged with same and open to receiving new information; and • Requests made by her to move Ms. P’s access to community access visits at the Centre which would be more convenient for Ms. P was denied by Ms.

W. [ 74 ] The Minister questions Ms. P’s assertion that, should the children be returned to her care, she would continue to benefit from community based resources such as the Centre. The Minister says in the written submissions dated August 12, 2020, that Ms. Watts “does not offer one sentence of how she and the Centre will support [Ms. P] upon the possible return of the children to her care”. [ 75 ] With respect, community based resources provide valuable supports to parents. Parents, like Ms. P, should be commended when they take advantage of same. Here, Ms.

P has a demonstrated history of using the resources from the Centre and having a positive working relationship with the Centre’s service providers. Thus, I fully believe that Ms. P would try to take advantage of the services and supports from the Centre should the children be returned to her care.

I’m therefore not prepared to discount these community services in the manner suggested by the Minister. 9.0 Substantiated Concerns of the Minister [ 76 ] While I haven’t been persuaded by a number of the Minister’s concerns, there are others which I find to be substantiated which support the Minister’s position that the children would be in need of protective services and at a substantial risk of harm if now returned to Ms. P’s care.

I will discuss them now. 9.1 Substantial Risk of Harm to J and T by Potential Exposure to Family/Domestic Violence [ 77 ] The Minister raises concerns about the children being exposed to family/domestic violence on account of Ms. P’s relationship with Mr. S and her former boyfriend, Mr. D. [ 78 ] Ms. P acknowledges that her relationship with Mr. S was an unhealthy and toxic one. Her evidence included:

• During their relationship, he committed acts of domestic violence against her while the children were in the home. • When their relationship ended, he continued to harass her. • She obtained a Peace Bond against Mr. S on January 16, 2020, which required him to have no direct or indirect contact or communication with her or be within 100 m of her residence. • She pursued criminal charges against Mr. S who was charged on April 23, 2020, with various offences alleging that, between September 1, 2006, and April 23, 2020, he committed several assaults against her and conveyed a threat to her former partner, Mr.

D, to cause her bodily harm or death. • Since the Peace Bond has been in effect, she has not spoken to or texted Mr. S although she did accept money via email transfer from him for the children which she used to buy J and T some summer clothes. • She took a trip to Edmonton from April 23, 2020, to May 8, 2020, because she feared Mr. S. • She continues not to have any contact with Mr. S but is very nervous about being in her home as he has been spotted in the area which makes her feel very unsettled. [ 79 ] When Ms. P filed her Plan of Care for the children’s return on January 30, 2020, Mr.

D, her boyfriend at the time, figured prominently in her parenting plan essentially in a co-parenting role. Ms. P said that she and Mr. D ended their romantic relationship a few days later in February 2020 but remained friends and continued to have regular contact with each other. [ 80 ] Mr. D was subpoenaed by the Minister to testify at the final hearing. His evidence included: • He has never met J or T but agreed to effectively help co-parent them with Ms. P as outlined in her Plan dated January 30, 2020, which was discussed before the Plan was put forward. • He thought he and Ms.

P could resume their relationship in the future. Even if they didn’t resume a romantic relationship, he would be willing to assist in driving the children to appointments with Ms. P, babysit the children and assist Ms. P with their needs. • He initially thought Ms. P shouldn’t have accepted the money e-transfer from Mr. S as it was contact which unnecessarily tied them together. • Mr. S “texted, emailed, and harassed” Ms. P “a couple of times per week” and was “not fit”. • Despite not being in a romantic relationship, he and Ms.

P purchased a car together in April 2020 which he currently uses. • He hasn’t had any contact with his former partner and their two biological teenage children for years and believes there are conditions that he isn’t to have any contact with his former partner. • He and Ms. P had two altercations after they ended their romantic relationship which resulted in police involvement. The first was on April 13, 2020, in which he grabbed Ms. P’s arm during an argument. The second occurred in late-May or early-June 2020.

• Ms. P “stole” $300 from him and told him that she took the money to help a friend. • He was convicted years ago of uttering forged documents regarding a prescription for oxycontin which he altered for a friend. [ 81 ] Ms. P’s evidence about her relationship with Mr. D included: • While Mr. D was initially an integral part of her Plan for the children dated January 30, 2020, this changed a few days later in February 2020. Mr. D lost his father to cancer and the pressure this created made it clear that co-parenting the boys with him was not the best idea and Mr. D was not ready for a “ready made family”.

She said she made it clear to Mr. D that this was not negotiable and that she and the children are “a package deal”. • Her plan to parent J and T is now as a sole parent without help from Mr. S or Mr. D. • After their romantic relationship ended in February 2020, she and Mr. D remained friends and have been there to help each other. • The two of them are not perfect and fight and argue like anyone else. • Mr. D had been a great support during the recent incidents involving Mr. S which led to Mr. S being charged criminally. • She has stayed at Mr.

D’s home with his mother for a few nights to try to help out after Mr. D’s father passed away. • Mr. D happened to be in her home when Mr. D was served with the Minister’s subpoena requiring him to attend the final hearing. He was there because he was picking her up because Mr. D’s mother wanted to go out with both of them. • Mr. D lives about a 5 minute walk away from her residence. • The incidents between her and Mr. D resulting in the police being called occurred as a result of misunderstandings. For example, on April 13, 2020, they got into an argument and she wanted to go home to breathe and think. Mr.

D didn’t want her to go and got upset and grabbed her arm so she called the police for help in getting her sneakers and keys. There were no criminal charges laid and they both got over it and were still friends. She didn’t tell anyone about the incident because she didn’t feel it was necessary to do so. • She did help Mr. D purchase a car in April 2020 but there is a written contract that he will return the car to her as it is her car. • She never stole money from Mr. D but took some money which belonged to her to buy groceries. • She was led to believe that Mr.

D did have contact with his two teenage children but learned when he testified in court that he has no contact with them. • She was unaware of Mr. D’s historical criminal conviction. She first learned about this when he testified on July 27, 2020. She said she would never become involved with him had she known this before. She has since taken steps to block him from contacting her. • The reason she removed Mr. D from her plan was that she saw “red flags” in the relationship and felt he had anger issues.

[ 82 ] Both Ms. MacLeod and Ms. Trottier gave evidence about the work they did with Ms. P in relation to issues of domestic/family violence. Their evidence included: Susan MacLeod • Despite being Ms. P’s support person, Ms. P didn’t report to her the two instances of police involvement which occurred with Mr. D. • She knew Mr. S to present as unstable at times. • She understood that Ms. P went to Edmonton because she was afraid of Mr. S. • She recalled several changes in Ms. P’s plan during their time working together – from co-parenting with Mr. S to moving to Ontario, to parenting alone, to parenting with Mr.

D, and then parenting alone again. • There is a lack of boundaries between Ms. P and Mr. S, they cannot “stay in their own lanes” regarding parenting and are focused on each other instead of the children. • It was “always messy” between Ms. P and Mr. S. Danielle Trottier Q. Okay. What is your understanding of [Ms. P's] relationship with [Mr. S]? A. Ahh, my understanding of the relationship is that [Ms. P] has reported that relationship as being very abusive. Q. Uh-huh. A.

And that she's been going through a period now where she's trying to make sense of a lot of abuse that she experienced in the relationship and how to heal from that. Q. And are you aware that [Mr. S] has been charged with multiple counts of assault and uttering threats against [Ms. P]? A. Yes, I am. Q. And how are you aware of that? A. Ms. [P] had notified me. Q. She told you. And has [Ms. P] expressed current fear of [Mr. S] to you? A. Yes. Q. Yes. Like, she's described an abusive past with [Mr. S], but she's also described a current fear, like present-day? A. Yes.

Q. Okay. And what's your understanding of [Ms. P's] with [Mr. D]? A. Ahh, my understanding of the relationship is that they began dating ... I can't recall the exact time period. And she had described the relationship as very positive in the beginning, and she became quite close with his family quite quickly. His father was sick and she was going to the hospital to visit him. And she had reported that in ... I believe it was around mid-February that she had decided to end the relationship as she felt that maybe [Mr. D] was taking out his stress levels on her. And due to her previous relationship with [Mr.

S], she didn't want to take any extra risks around repeating any cycles of violence within a relationship, so she decided to end it at that time. And she had ... they had decided to become good friends. And my understanding was that they maintain the course of a friendship from that following period. She did identify that she continued to see some signs that he may have some anger problems, and she really didn't want to over-involve herself with his issues and wanted to focus on herself. … Q. Okay. And so did [Ms. P] talk to you about ending her relationship with [Mr. D] in February at that appointment? A. Yes.

Q. That was when it happened. And did [Ms. P] tell you that there was an incident between her and [Mr. D] during which she called the police? A. Yes. Q. She ... and can you just tell the Court what she told you about what happened? A. Yes. So she notified me of an incident during a session we had in July, this month. And she had explained that near the beginning of the relationship and I…it was either right before they started dating or right at the initial period where he had accused her of stealing money from him. And then when she went to leave the home, he tried to prevent her from leaving.

And then he put his hands on her at some point and so she called the police. In the discussion I had with her, she had perceived herself as over-reacting in that situation, and that's where we did some of that work in counselling, again about developing insight around risks and red flags ... Q. So I just want to clarify a couple of points. A. Uh-huh. Q. [Ms. P] told you about this happening in July of 2020. A. She told me in July about this incident. And she had stated that it had occurred earlier on in the relationship.

Q. Right. So if I told you that it happened on April 13, 2020, would that be surprising to you given your understanding of what you and [Ms. P] discussed? A. Yes. Q. Yes, okay. And we could agree that April 13th happened after February when you understand that they ended their romantic relationship. A. Yes. Q. Okay. And from your reports, I see that you attended a session with [Ms. P] on April 17th. And you're sure that it wasn't mentioned at the April 17th appointment. A. Very sure. Q. Yeah. It wasn't raised until July, okay.

And you described ... and I don't mean to put words in your mouth, and I'm paraphrasing as well, but essentially [Ms. P] and [Mr. D] got in an argument. She went to leave the home. He prevented her from leaving the home. And ultimately she called the police. Is that fair? Is that a fair

summary? A. Yes. Q. Okay. Would you say that's a healthy relationship? A. No. Q. No. Do you think in your opinion does it matter whether or not that's a romantic relationship or not a romantic relationship to assess its healthfulness? A. No. Q. And in your opinion, what does it say about [Ms. P's] insight around that issue of domestic violence with two previous partners, that she had two incidents in April that required her to call the police with previous partners? A. Ahh, it was concerning for me. Q. And would you say that that requires ongoing therapy? Would that be part of the year of therapy to come? A. Yes.

And that's been my impression throughout the course of therapy… … Q. Okay. If I told you ... ... (inaudible) that. And in your opinion, are these relationship issues with [Mr. S] and now with [Mr. D],

are those one-offs, or would you consider that a pattern that was concerning in terms of domestic violence? A. Based on the information that I have about [Mr. D] at this point, I would say it appears to be part of a pattern. Q. Uh-huh. A. However, I do know that [Ms. P] has expressed that she had previously lacked exercising good judgement ... Q. Uh-huh. A. ... in regards to [Mr. S]... Q. Uh-huh. A. ... and has shown ... has been able to identify some of the differences in her insight and use of judgement from the relationship with [Mr. S] versus [Mr. D]. Q. And have you seen [Ms.

P] implement that or is that her self-reporting to you? A. Self-reporting. [Emphasis added] [ 83 ] The Minister submits that the concerns about domestic/family violence would place J and T at a substantial risk of harm if now returned to Ms. P’s care. Specifically, in the written submissions dated August 12, 2020, the Minister asserts:

a) It is likely that Ms. P and Mr. D will continue in a relationship, intimate or otherwise. He was a key part of Ms. P’s plan filed on January 30, 2020, and the evidence clearly shows he has been and is a main player in Ms. P’s life.

b) It is likely that, particularly without services to address the issue, there will be continued domestic violence in the relationship between Ms. P and Mr. D. If the children are returned to Ms. P’s care, they will continue to be exposed to this violence.

c) Ms. P’s decision to enter into a relationship with[Mr. D (at the end of the timeline in October 2019), is an example of her lack of insight and poor judgment, particularly as she effectively added another major presenting problem (continued domestic violence and the conflict between her, Mr. D, and Mr.

S) to a situation was that already overwhelming for her.

d) Ms. P’s decision to make Mr. D an integral part of her plan to parent her children in January 2020, after only knowing him for four months, is an example of her lack of insight and ability to understand and meet her children’s needs. Further, when Mr. D was not prepared to “be involved” in the Agency and Court progress, Ms. P “removed” him from the plan to meet his needs while minimizing their ongoing relationship to the Agency and Court, which is further indicative of her lack of insight and ability to put her children’s needs first. [ 84 ] The Minister’s concerns are understandable.

I don’t say this to be critical of Ms. P. Issues of intimate partner/domestic violence are complex. They involve power dynamics which often do not make it easy for the victim to simply leave and address the impact of that violence. Breaking the cycle of violence is easier said than done. It can take time. Thus, blaming Ms. P for being a victim of domestic violence or suggesting that she is a poor parent simply because of poor treatment by others isn’t appropriate. [ 85 ] On the other hand, the CFSA requires that parents, whose children have been harmed by repeated exposure to domestic violence

obtain services or treatment to remedy or alleviate the substantial risk of physical and emotional harm created by that exposure: s. 22(2) (i). [ 86 ] When assessing risk of harm, one must do this through the lens of J and T’s best interests as opposed to Ms. P’s best interests. Unfortunately, when viewed through a child-centric lens, Ms. P hasn’t done enough to demonstrate that she has gained the necessary insight into the concerns about family/domestic violence such that the children can be safely returned to her care now. [ 87 ] As noted by the Minister, Ms. Trottier testified that Ms.

P never raised the incidents involving Mr. D during her counselling sessions until July 2020 (i.e. the month of the final hearing which was already nine months past when the maximum statutory time limit expired). As I will elaborate upon further later, Ms. Trottier confirmed that Ms. P hasn’t met the goals of therapy which could require as much as an additional year of therapy; [ 88 ] Furthermore as described by her counsel in Ms. P’s written submissions dated August 12, 2020, “ it really has only been since the spring [of 2020] when Ms. P first began to look at things head on ” [Emphasis added]. I agree.

The problem is that only starting to look at things head on several months after the maximum time limit ended is, in my respectful view, simply far too late given that counselling isn’t close to being completed. While I commend Ms. P for the progress she has made in the last few months in relation to the concerns relating to domestic violence, and agree that her taking steps to protect herself from Mr. S and recognize potential red flags in her relationship with Mr.

D are positive steps, I’m not satisfied that she has gained sufficient insight into the issues of family/domestic violence and the negative impact it can have on children. I agree with the Minister that Ms. P’s decision to make Mr. D an integral part of her plan to parent the children in January 2020, is concerning especially when, days later, she concluded that there were “red flags” in the relationship which resulted in her ending the romantic relationship. Despite this, there were further incidents of conflict between her and Mr.

D in the subsequent weeks and months resulting in police involvement. [ 89 ] In Nova Scotia (Community Services) v. E.P.B., 2010 NSSC 292 , my colleague, Justice Jollimore ordered that two children be placed in the Minister’s permanent care and custody seven weeks before the maximum time limits in the child protection proceeding were exceeded. In doing so, she stated in para. 22: There are less than seven weeks before this matter must be finally resolved. Ms.

B argues that she has “taken the first – and most difficult – step toward providing herself and her children a safe and secure life” and that she “has broken the cycle of abuse and control that she has experienced…”. I agree that Ms. B has taken the first step. I acknowledge the difficulty of that step. I do not agree that she has broken the cycle of abuse and control that she has experienced. Ms. B has only recently begun to address the abuse and violence that has characterized so many of her adult relationships. It is too early to say that the cycle has been anything other than interrupted.

Her commitment to breaking the cycle of violence is uncertain . [Emphasis added]. [ 90 ] Unlike in E.P.B. , where the maximum statutory time limit hadn’t been exceeded, in this case, we are many months past the maximum statutory time limit. While some progress has been made, to borrow Justice Jollimore’s words from E.P.B., it’s too early to say that the cycle of abuse and violence has been anything other than interrupted and Ms. P’s ongoing ability to break the cycle of violence is uncertain. [ 91 ] In child protection cases, it’s the children’s needs that drive the timelines for addressing issues.

Here, it’s J and T’s senses of time which I must respect. Their best interests must be paramount and I cannot gamble on their futures now by assuming that Ms. P will be able to fully gain long-lasting insight into the issues of domestic violence simply because she has made some progress over the last few months. I also unfortunately cannot give Ms. P even more time to address the issues when we are already over a year past the maximum statutory time limit. Thus, when I consider the evidence about past and more current issues of domestic/family violence, and the lack of sufficient and sustained progress by Ms.

P in addressing these concerns, I agree with the Minister that the evidence supports that J and T would be placed at a substantial risk of harm now if returned to her care and would be in need of protective services. 9.2 Incomplete Progress with Family Support Work [ 92 ] The Minister says that because Family Support Work was an important service for Ms. P to complete based on Ms. Denney- Hazel’s psychological assessment, Ms. W and the Agency went through great efforts to accommodate Ms. P’s participation in this service. Furthermore, due to problems which arose in terms of Ms.

P’s participation, the Agency arranged for Ms. P to have three Family Support Workers: Tom Lamey (August 2018 to December 2018), Colleen Armstrong (December 2018 to March 2019), and Susan MacLeod (November 2011 to January 2013 and July 2019 to present). In total, the Agency arranged for approximately 33 months of cumulative Family Support Work programming and assistance for Ms. P. [ 93 ] I commend the Agency for the considerable efforts made to find a family support worker who was a good fit for Ms. P. Clearly, the best fit was Ms. MacLeod who had previously worked well with Ms. P from 2011 to 2013. Ms.

MacLeod filed two affidavits and also gave oral evidence. Her evidence included: • Her goals with Ms. P were to focus on positive discipline, daily routine and structure, setting healthy boundaries, access and parenting education and support. • She ended up providing mostly support to Ms. P and Mr. S but not a lot of parenting education as when she tried to work on the parenting pieces, Ms. P showed her a binder which contained the parenting information she had learned and was clear she didn’t want to repeat same.

• She had 50-100 sessions (including her 2011-2013 work) with Ms. P and over 20 access visits. There was never any issue about Ms. P’s attendance. • Ms. P was very cooperative and respectful with her and staff from the Family Resource Centre. • She observed Ms. P be aggressive with Ms. W and, in her opinion, Ms. P engaged with a service provider based on her level of comfort with the challenge that the person presented to her. • Ms. P gets along better when she agrees with what is being said and the perception of the concern. • She could not identify Ms.

P’s supports other than professional supports including herself and Ms. Andrea and Ms. Watts from the North End Parent Resource Centre. • Ms. P has “some positive parenting skills, but not progress”. • She did not believe that Ms. P was always truthful with her. • Her work with Ms. P has ended. Ms. P didn’t meet all the goals for Family Support Work and would benefit from ongoing community supports. • She has ongoing concerns about Ms. P’s lack of insight in parenting the children, particularly in relation to things Ms.

P sees as being not a big deal or accepting feedback with respect to the children’s needs. [95] While Ms. MacLeod and Ms. P had a good working relationship, Ms. MacLeod was the third family support worker assigned to Ms. P in this proceeding because of a breakdown in the relationship with the prior two family support workers. Furthermore, the sessions with Ms. MacLeod didn’t start until July 2019, approximately three months before the maximum statutory time limit for this proceeding. While some progress was made by Ms. P through her sessions with Ms. MacLeod, I accept the evidence of Ms.

MacLeod that sufficient progress wasn’t made in addressing the child protection concerns and that ongoing concerns remain about Ms. P’s lack of insight in parenting the children appropriately. I agree with the Minister that these ongoing concerns support a finding that the children would remain in need of protective services if now returned to Ms. P’s care and that Ms. P’s simple attendance at the sessions with Ms.

MacLeod doesn’t demonstrate understanding of the reasons the intervention was required. 9.3 Incomplete Progress with Counselling [96] The Minister says that because counselling was an important service for Ms. P to complete based on Ms. Denney-Hazel’s psychological assessment and Ms. P’s overall presentation, the Agency went to great lengths to accommodate Ms. P’s participation in same with three different counsellors. Despite this, the Minister says that Ms.

P’s resistance to participation is indicative of her lack of insight into the child protection concerns. [97] In the Minister’s written submissions dated August 12, 2020, Ms. P’s involvement with her first two counsellors are summarized as follows: “[Ms. P] attended counselling with Clara Coward (October 2018 - February 2019). This service was arranged by [Ms. W] because Ms. Coward books appointments during evenings and weekends which would accommodate [Ms. P’s]

schedule (Exhibit 1, page 102). [Ms. P] reported Ms. Coward’s location was an issue and the service was terminated (Exhibit 1, page 106). Ms. Coward was qualified as an expert in the therapeutic treatment of adults by consent and her report (Exhibit 5, tab 4) was entered by consent. The last paragraph of Ms. Coward’s report states, “In conclusion, [Ms. P] presents with anxiety, fears, and worries. She becomes dysregulated very quickly, in which she then becomes dismissive and aggressive in her approach.

It is this clinician’s clinical opinion that she presents with some distortions/paranoia on how she perceived situations and events that have occurred. It is my understanding that presently, she is not interested in continuing clinical sessions with this writer.” Arrangements were then made by [Ms. W] for [Ms. P] to attend counselling with Jackie Barkley. Ms. Barkley met with [Ms. P] on two occasions, once in March 2019 and once August 2019. Ms. Barkley was qualified as an expert in the therapeutic treatment of adults by consent and her report (Exhibit 5, tab 9) was entered by consent.

In her report regarding her first meeting with [Ms. P] on March 29, 2019, Ms. Barkley states: “I determined then that counselling would not be viable at that time as it was clear during the meeting that [Ms. P] was not ready for counselling.” In her report regarding her second meeting with [Ms. P] on August 7, 2019, Ms. Barkley states: “Once again I determined that [Ms. P] was not ready for counselling.” [98] Given the lack of progress with Ms. P’s first two counsellors, Ms. W then made arrangements for counselling for Ms. P with Danielle Trottier. Again, I commend Ms.

W for trying to find a counsellor who was a good fit for Ms. P. [99] Ms. Trottier was qualified as an expert in the counselling therapy of adults by consent. She started seeing Ms. P in September 2019 and prepared reports dated December 3, 2019, February 21, 2020, and May 14, 2020. [100] Ms. Trottier also gave oral evidence during the trial. The Minister emphasizes the following evidence from her to support the Agency’s concerns that Ms. P lacks insight into the child protection concerns.

• [Ms. P] attended 17 sessions but cancelled/missed 5 sessions. • [Ms. P’s] inconsistency in counselling made it difficult to gauge her engagement and Ms. Trottier questioned if [Ms. P’s] engagement was superficial because of [Ms. P] not being forthcoming with certain information. • Ms. Trottier could not ascertain whether [Ms. P’s] presentation was a reflection of her cognitive limitations as set out in the 2018 Psychological Assessment by Jennifer Denney-Hazel or was her presentation. • She queried if [Ms

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