Nova Scotia (Community Services) v. R.F., 2012 NSSC 125

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Nova Scotia (Community Services) v. R.F., 2012 NSSC 125 Date: 20120402 Docket: SFHCFSA-072635 Registry: Halifax Between: Minister of Community Services Applicant v. R.F. and S.M. Respondents AND Date: 20120402 Docket: SFH-MCA 079265 Registry: Halifax Between: B.W. Applicant v. R.F. and S.M. Respondents Revised Decision: This decision of April 10, 2012 replaces the previously released decision. Judge: The Honourable Justice Elizabeth Jollimore

Heard: March 5, 6, 7, 8 and 23, 2012 Counsel: Jean V. Webb for Minister of Community Services Samira Zayid for R.F. S.M. on his own behalf Colin M. Campbell for B.W. By the Court: Introduction [ 1 ] There are two applications before me. The first is an application by the Minister of Community Services pursuant to section 46(5) (

a) of the Children and Family Services Act , S.N.S. 1990, c. 5. The second is an application under

section 18 of the Maintenance and Custody Act , R.S.N.S. 1989, c. 160. The applications, the parties and the relief sought [ 2 ] The Minister’s application is brought against Ms. F and Mr. M who are the parents of seven year old C. Initially, the application also related to another child, Ms. F’s child B. Mr. M isn’t B’s father.

The application relating to B was resolved by an agreement that B would live with his maternal grandmother, subject to terms outlined in an order under the Maintenance and Custody Act . [ 3 ] The deadline for determining the Minister’s application is April 7, 2012. [ 4 ] The Maintenance and Custody Act application is brought against Ms. F and Mr. M. The applicant is Ms. F’s mother, Ms. W. To be clear, Ms. W is C’s maternal grandmother and B lives with Ms.

W. [ 5 ] The Minister asks that I “terminate its child protection proceeding in favour of an order under the Maintenance and Custody Act ” that places C with Ms. W. Pursuant to the proposed order, C’s contact with Ms. F would parallel B’s contact with her. Mr. M’s contact with C would, the Minister asks, be supervised by Mr. M’s mother. Both Ms. F and Ms. W support the Minister’s request. [ 6 ] Mr. M agrees that the Minister’s application should be terminated. He seeks to have C in his custody. Mr. M opposes Ms. W’s application for custody. He proposes that Ms.

F would have access with C, but that her access would be supervised by someone other than Ms. W. Family history [ 7 ] Ms. F and Mr. M began to cohabit in January 2003 when B was approximately two and one-half years old. C was born at the end of 2004. [ 8 ] Ms. F and Mr. M describe their relationship as “turbulent” and “volatile”. There were arguments, yelling, name-calling and foul language. Each described violence by the other. In February 2005, Mr. M was charged with assaulting Ms. F. Following this, they separated. Mr. M was convicted and placed on probation.

[ 9 ] The two reconciled in the spring of 2007. In September of that year, following an argument with Ms. F, Mr. M was charged with two counts of uttering threats to cause bodily harm or death, one count of uttering threats to damage property and one count of criminal harassment. At that point, Mr. M left their home. This separation has been permanent. [ 10 ] During their break ups and after their final separation in September 2007, C remained with Ms. F. There were various orders pursuant to the Maintenance and Custody Act relating to C.

I was provided with orders from the spring of 2008, the summer of 2008 and early 2010. Ms. F’s evidence and the language of these orders indicate there were additional orders that have not been provided to me. [ 11 ] The final Maintenance and Custody Act order relating to C was granted in January 2010. C was placed in his mother’s primary care and custody. C had access with Mr. M every weekend from Friday afternoon until Sunday afternoon, except the last weekend of the month. In May, C would spend the Mother’s Day weekend with Ms. F instead of the final weekend of the month.

This general access pattern was suspended at Christmas and at Easter, and these holidays were to be divided between the parents. As well, special arrangements were in place for contact between C and Mr. M on Hallowe’en, C’s birthday and Father’s Day. If the parents agreed, there could be additional access. There was a history of Mr. M having additional weekday access. This was close to a shared parenting arrangement. [ 12 ] The order stated that Mr.

M was to “refrain absolutely from consumption of non-prescription drugs or alcohol while caring” for C and each parent was to ensure that C’s medication would travel with C on visits. If either parent forgot the medicine, that parent would be responsible for delivering it to the other. [ 13 ] While this litigation was ongoing between the parents, there were various referrals to the child welfare authorities (which I’ll refer to as the “Agency”) from Mr. M, Ms. F and Ms. W. When the police were called by either parent, the police made referrals. As well, a teacher made a referral about Ms. F. [ 14 ] Most of Mr.

M’s referrals to the Agency were not investigated. In some cases this was because the referrals were not of sufficient severity to engage the Agency’s mandate under the Children and Family Services Act , in other cases it was because they were “referrals of questionable motive”: referrals thought to be intended to advance Mr. M’s cause in the parties’ ongoing litigation. Of course, the failure to consider these referrals means it isn’t possible for me to know whether any were valid, particularly those which were thought to be intended to advance Mr. M’s cause in the litigation with Ms. F. [ 15 ] A number of Mr.

M’s referrals were investigated: Ms. F transporting C without a car seat; her boyfriend uttering threats against Mr. M; Ms. F babysitting children in her home and leaving them (and her own children) unsupervised; and Ms. M smoking in C’s presence. [ 16 ] In mid-January 2010, just shortly after the final Maintenance and Custody Act order was issued, the Agency closed its file. A letter was sent to Mr. M telling him that the Department of Community Services was concerned about “the emotional impact” on C of his conduct.

He was told that “[m]aking a questionable report [. . . ] contributes to putting the children in the home at risk of emotional harm and distress.” I’m unsure how there was a risk of emotional harm and distress on the children where the Agency wasn’t investigating most of Mr. M’s referrals. He was referred to the

section of the Children and Family Services Act dealing with the offence and penalties for making false and malicious reports to the Agency. [ 17 ] Two weeks later, Ms. F sought admission to the Abbie J. Lane Hospital because she was experiencing psychotic-like symptoms: hearing voices and paranoid responses. Ms. F said that she’d slapped C. The hospital social worker made a report to the Agency. [ 18 ] On the day after Ms. F’s hospital admission, C was with his father for the weekend and, according to the Agency’s case recordings, Ms.

F called the police to have C removed from his father’s care while she was in the hospital. The police declined to do so. As soon as Ms. F left the hospital, she again asked the police to remove C. They did not. Mr. M returned C to Ms. F after the Agency concluded its investigation into Ms. F’s circumstances. [ 19 ] Following Ms. F’s departure from the hospital, the Agency made announced and unannounced visits to her home. Concerns related to her drug use, the children’s diet (insufficient or inadequate food sent to school and at home) and her boyfriend’s criminal associations or behaviour.

Over the following months, there were a number of referrals by Mr. M, Ms. W and the police about Ms. F which were investigated. By the end of March 2010, the Agency decided that Ms. F and the children were in need of long term services. Then the school reported that B (then aged nine) had thoughts of suicide. Counselling was arranged for B and Ms. F arranged for B to

live with Ms. W until the end of the school year. [ 20 ] In early June 2010, Ms. F reported to the Agency that she was again hearing voices. The Agency raised the prospect of C living elsewhere for two weeks while Ms. F’s mental health could be stabilized. To avoid conflict between Ms. W and Mr. M, Ms. F suggested C live with his father as C had earlier in the spring. [ 21 ] The Agency asked Mr. M if he would agree to take C into his home on a temporary basis. Mr. M wanted a letter from Ms. F confirming this arrangement or a court order: in the past Ms.

F had left C with him voluntarily and then, part way through the child’s stay, sent the police to collect C. Mr. M wanted to avoid this. Ms. F wasn’t willing to provide a letter. When informed of this, Mr. M said he would take C without a letter or court order. By this point, the Agency was unwilling to place C with Mr. M and placed C with Ms. W. [ 22 ] Ms. W says an Agency worker asked her not to tell Mr. M that C was living with her. Mr. M believed C was living with Ms.

W on a short-term basis, just as he’d been asked to care for C. [ 23 ] During the summer of 2010, the Agency arranged counselling for C with Sara Lamb. The child protection application [ 24 ] A risk management conference was held on October 15, 2010. In her initial affidavit in support of the child protection application, Suzanne Mercer, an Agency social worker, deposed that the Agency decided to bring the application “[d]ue to concerns over [Ms. F]’s lack of commitment to fully participate in the services recommended by the Agency and [Mr. M]’s emotional instability and inability to manage his anger”.

At a later risk management conference, according to Ms. Mercer, consideration was given to Mr. M’s . . . making numerous invalid reports against [Ms. F]. And in considering [Mr. M]’s agitation and volatility with Agency staff when his son is present, and knowledge of [Mr. M]’s actions behaviours during access pick up and drop off. [ 25 ] The original Notice of Taking into Care, dated October 27, 2010, identified sections 22(2) (b),(

g) and (ja) of the Children and Family Services Act as the bases for the Minister’s application. [ 26 ] In general terms, these sections refer to a substantial risk that children will suffer physical harm inflicted or caused by a parent or caused by the parent’s failure to supervise the children adequately [s. 22(2)(b)]; a substantial risk that children will suffer emotional harm ( demonstrated by severe anxiety, depression, withdrawal, or self-destructive or aggressive behaviour) and the parent doesn’t provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm [s. 22(2)(g)]; and a substantial risk that children will suffer physical harm caused by chronic and serious neglect by a parent, and the parent doesn’t provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm [s. 22(2)(ja)]. [ 27 ] The Notice of Child Protection Application was filed October 28, 2010 and repeated these statutory references.

The application sought to have B and C placed with Ms. W, and outlined the terms of cooperation, compliance and access imposed on Ms. W by that arrangement. The application sought an order for supervised access by each parent. Orders for various referrals were sought with regard to both parents: a substance abuse assessment; individual therapy and counselling; and random urine drug testing. For Ms. F, an order for a mental health assessment was sought. For Mr. M, the Minister sought an order that he self-refer to New Start Counselling for an assessment regarding anger management.

In every case where an assessment was sought to be ordered, the request included an order that the parent follow any recommendations flowing from the assessment. [ 28 ] Certain production orders were sought. With regard to Ms. F, records from the Abbie J. Lane Hospital, from Dr. Aziz, Dr. Muhsin and Joyce Lyons were sought. With regard to Mr. M, records from New Start Counselling were sought. The records of both parents from N.S. Medical Services Insurance and the Halifax Regional Police were requested. With regard to the children, records were sought from the Halifax Regional Police, Dr. Aziz, Dr. Muhsin, N.S.

Medical Services Insurance and the Halifax Regional School Board. The five day hearing [ 29 ] Both Ms. F and Mr. M were represented by counsel at the five day hearing. They consented to an order on the basis that there were reasonable and probable grounds to believe that B and C were in need of protective services and the children were placed with Ms. W on November 1, 2010. Supervised access was put in place for each parent. [ 30 ] At this stage, Ms. F was willing to consent to all the production orders the Minister sought.

She also consented to an order that she self-refer for a mental health assessment, submit to random urine drug testing and be referred for individual therapy and counselling. Completion of the interim hearing

[ 31 ] Completion of the interim hearing was scheduled for November 15, 2010: Ms. F was present, while Mr. M had injured his hand and was at the hospital emergency room. His counsel didn’t have instructions on some of the relief that the Minister was requesting, but said that Mr. M was contesting C’s placement with Ms. W and sought to have C in his care. A placement hearing was scheduled for March 16 and 17, 2011. In Mr. M’s absence, completion of the interim hearing was adjourned to November 25. [ 32 ] On November 25, 2010 the interim hearing was completed with the parents’ consent. Mr. M was present.

The children remained with their maternal grandmother, having supervised access with their parents. Mr. M consented to the production of his Halifax Regional Police Department and New Start Counselling records. He also consented to the production of C’s Halifax Regional School Board records, medical, MSI records and any Halifax Regional Police records relating to C. At this hearing, Mr. M’s lawyer raised the issue of the anger management counselling: Mr.

M was more than willing to participate in an assessment, but felt that New Start was not the appropriate place. [ 33 ] As a result, the interim order provided that Mr. M would “be referred for individual therapy and counselling for anger management” rather than to New Start Counselling. He was also ordered to “self-refer for a mental health assessment”. The protection hearing [ 34 ] A conference was held on January 17, 2011 prior to the protection hearing. Mr. M wasn’t present and his counsel had no instructions.

The deadline for the protection hearing was January 26, 2011, so the matter was adjourned to January 24. However, Mr. M’s counsel still had no contact with him and no instructions on that date. [ 35 ] A finding that the children were in need of protective services based on section 22(2)(

g) of the Act was made on January 24, 2011 with Ms. F’s consent. Mr. M’s counsel appeared on his behalf: she had no instructions from Mr. M to consent to or oppose the order. Mr. M wasn’t present. I made the protection finding pursuant to section 22(2)(

g) of the Act on the basis of the evidence contained in the affidavits filed on the Minister’s behalf. The protection order continued the terms of the interim order that Mr. M would “be referred for individual therapy and counselling for anger management” and that he would “self-refer for a mental health assessment” as he had earlier agreed. [ 36 ] In this context I should note paragraphs 29 to 32 of the Court of Appeal’s decision in Nova Scotia (Community Services) v. B.L.C. , 2007 NSCA 45 .

There, Justice Bateman’s reasons remind me that “Consent findings of protection are an efficient procedural tool which avoid early stage litigation and facilitate a focus on remediating the parenting issues.” This, of course, is true of Ms. F who consented to the protection finding. Mr. M did not consent to the protection finding. I made the finding in his absence and without evidence or submissions on his behalf as to the appropriate finding. [ 37 ] Justice Bateman noted that at the protection hearing there’s no agreed statement of facts.

Typically, the only evidence is provided in affidavits from Agency staff and, as Justice Bateman said at paragraph 29: It is impossible to know which, if any, of the affidavit’s factual assertions are admitted by the mother.

At the disposition hearing [the mother] cannot dispute that the child was in need of protective services but she may well take issue with the factual basis for that finding and may maintain that she has adequately addressed the issues leading to the child’s need for protection. [ 38 ] Because the dates for the placement hearing were approaching, deadlines were fixed for filing affidavits. [ 39 ] On February 22, 2011, I granted a motion by Mr. M’s lawyer to withdraw. Since then, Mr. M has acted on his own behalf. [ 40 ] On March 10, 2011, the Minister’s counsel wrote to the court, stating that Mr.

M had advised the Agency that he no longer wished to participate in a placement hearing, so this hearing was cancelled. The disposition hearing [ 41 ] The Minister moved for a disposition order on March 11, 2011, seeking an order pursuant to section 42(1)(

c) of the Act that the children remain in Ms. W’s care “with the consent of [Ms. F]” subject to the Minister’s supervision. The Agency filed its Plan for the Child’s Care. According to the Plan, neither parent had begun random urine drug testing: each wished to delay the start of testing. The Plan said that Mr. M planned to start “urine collection in a month which will give him enough time for the marijuana to be out of his system”. Ms. F’s self-referral for mental health services was underway. Ms. F was receiving “in home” parental instruction weekly and during her access visits. Mr. M had self-referred to Community Mental Health Services and was on the wait list.

[ 42 ] The goal of the case plan “will continue to be measured by the Respondents’ abilities to commit to their children and adhere to” certain conditions. As they related to Mr.

M, the conditions were that he: a. refrain from the use of non-medically prescribed drugs and the use of alcohol; b. co-operate with random drug testing and be available to provide urine samples as requested for drug-testing purposes; c. participate with Addiction Prevention and Treatment Services for assessment and treatment (if required) with regard to resolving personal issues regarding drug use; d. attend anger management counselling; e. self-refer to Community Mental Health Services for a mental health assessment and, if recommended, treatment to address personal and mental health issues that impact his ability to parent; f. continue to consistently attend scheduled visits with C; g. continue to consistently attend all scheduled appointments with his case worker and others, providing essential information on a timely basis and following through with reasonable requests, directions and recommendations; and h. conduct himself appropriately and respectfully in communicating with Agency staff. [ 43 ] To be clear, these are the conditions determined by the Agency.

As well, these conditions are not reflected in the various court orders: at no point was Mr. M ordered to “participate with Addiction Prevention and Treatment Services for assessment and treatment (if required) with regard to resolving personal issues regarding drug use”, nor was he ordered to “refrain from the use of non-medically prescribed drugs and the use of alcohol”.

Similarly, there were no orders compelling him to attend scheduled visits with C, to attend visits with his case worker or to “conduct himself appropriately and respectfully in communicating with Agency staff.” [ 44 ] On March 16, 2011 there was a pre-trial conference prior to the disposition hearing scheduled for April 7, 2011. All parties were present and there was discussion about the matter’s progress. Mr. M didn’t appear at the disposition hearing on April 7, 2011. Ms. F consented to a supervision order and, in Mr. M’s absence, I granted the order which repeated the requirements that Mr.

M would “be referred for individual therapy and counselling for anger management” and that he would “self-refer for a mental health assessment” as he’d earlier agreed. Review hearings [ 45 ] The first review of the supervision order occurred on July 11, 2011. Mr. M appeared and said that he had been willing to continue with the anger management counselling arranged by the Agency with Jacqueline Barkley, but Ms. Barkley had decided not to continue it. He said that the Agency had not seen him do anything inappropriate in front of C. The order from this hearing stated that Mr.

M would “be referred for individual therapy and counselling for anger management” and that he would “self-refer for a mental health assessment”. [ 46 ] A second review of the disposition order occurred on September 28, 2011. By this point, Mr. M had referred himself for a mental health assessment on two different occasions: February 22, 2011 and July 11, 2011. He arranged a third appointment on September 6, 2011 but it’s unclear whether he attended this appointment. Because Mr.

M told mental health service providers that he didn’t feel he needed an assessment and it was compelled by a court order, the service providers wouldn’t conduct an assessment. Mr. M authorized Agency staff to speak with his physician. [ 47 ] At the September hearing, Mr. M expressed various concerns about C’s placement with Ms. W. I suggested Mr. M file a motion to review the disposition order. In the absence of a motion from Mr. M, but as a result of these concerns, the next review was scheduled in November 2011, though it would typically not be expected until January 2012.

The order following the September review continued the terms that Mr. M would “be referred for individual therapy and counselling for anger management” and that he would “self-refer for a mental health assessment”. The language relating to the mental health assessment was not modified to address the difficulties that Mr. M experienced in attempting to refer himself for an assessment, but the Minister and Mr.

M were aware of those difficulties because they were discussed in court on September 28, 2011 and there are other similar discussions documented in the Agency’s case recordings. [ 48 ] At the November review, a commencement date was set for Mr. M’s random urine drug testing and the duration of the testing was agreed upon. Mr. M reported there were difficulties in C’s medication travelling with him for visits. An organizational conference, a settlement conference and trial dates were scheduled.

The November 10, 2011 supervision order continued the anger management therapy and mental health assessment self-referral provisions. The order also stated that Mr. M would submit to random urine drug testing for a five week period beginning December 14, 2011. [ 49 ] The organizational pre-trial conference began on January 20 and was continued on February 2, 15 and 22 to organize matters

relating to the trial such as the attendance of witnesses, filing deadlines and Ms. W’s newly-filed Maintenance and Custody Act application. This hearing [ 50 ] Four organizational pre-trial conferences pre-dated the trial. At these I directed the Minister to sub peona as witnesses those whom the Minister contracted to provide services to the family. In my experience the Minister usually arranges the attendance of such witnesses, though here the Minister was requiring Mr. M to make these arrangements. [ 51 ] At the January 20, 2012 conference, there was discussion of having Jacqueline Barkley testify about Mr.

M’s counseling. Following this conference I prepared a memorandum of filing and other deadlines which I provided to each party. It directed that the Minister provide the parties with its witnesses’ affidavits and “its exhibits (case notes, reports, documents produced pursuant to Orders to Produce, etc)” on February 10, 2012. Ms. F and Mr. M were to file their responding affidavits on February 21, 2012. [ 52 ] The Minister failed to file affidavits from Ashley Lekas, who is Mr. M’s social worker, and Angela Jones, the Dartmouth District Office’s Casework Supervisor by its February 10, 2012 deadline.

These affidavits were filed on February 22: the day after Ms. F and Mr. M filed theirs. This meant that Ms. F and Mr. M didn’t have the opportunity to address this evidence in their affidavits. [ 53 ] The parents were to file their own affidavits simultaneously on February 21, so neither of them was able to respond to the others’. [ 54 ] I determined that each of the parents would be able to testify in response to the material that was filed late and to each other’s affidavit. [ 55 ] The Minister’s counsel spoke with Ms. Barkley on February 22, 2012. During this conversation, Ms.

Barkley mentioned preparing a report about her most recent involvement with Mr. M from August 31, 2011 to November 20, 2011. Of course, by the time of this conversation, the Minister’s filing deadline had already passed. [ 56 ] On February 22, 2012, the parties appeared before me for the last organizational pre-trial conference. At this conference there was no mention that Ms. Barkley might be filing a report. [ 57 ] Ms. Barkley sent her report to the Minister’s counsel electronically in the late evening hours of Monday, February 27, 2012.

When the Minister’s counsel opened this email on February 29, 2012, she forwarded the report to Ms. F’s counsel. She did not forward the report to Mr. M. She did not make him aware that she’d received the report. She did not file the report at the court, aware that she would be required to seek leave to admit the report, given its lateness. [ 58 ] When the hearing began on March 5, 2012, Mr. M was given a copy of Ms. Barkley’s report while we were in the courtroom. The Minister’s counsel asked that the report be admitted, saying that it “goes to the heart of the matter”.

Regardless of its argued relevance, I was not told of any earlier efforts to make Mr. M aware of the existence of the report or its contents. Mr. M learned of the report only as the trial began and five hours before Ms. Barkley was scheduled to testify. At Mr. M’s request, I adjourned Ms. Barkley’s testimony for one day to allow him to review the report, to prepare for her testimony and to prepare his cross-examination of her. [ 59 ] The hearing came before me during the week of March 5 to 8, 2012. The Minister’s witnesses were Agency staff Ashley Lekas, Angela Jones and Suzanne Mercer.

There was testimony by others who provided services to the family: Clara Coward (who provided parent education and individual counselling services to Ms. F), Sara Lamb (who counselled the children), Jacqueline Barkley (who provided anger management counselling to Mr.

M) and Anne Hartling-Briggs (Ms. F’s family skills worker). Ms. F, Ms. W and Mr. M all filed affidavits and were cross-examined. [ 60 ] At the beginning of the hearing, I confirmed that no briefs were filed by any of the parties. I expressed my concern that the failure to abide by the Civil Procedure Rules’ requirement to file a brief put Mr. M at a disadvantage in conducting the hearing. Briefs were filed by the represented parties prior to March 16 and I heard final argument on March 23. Concerns relating to Mr. M [ 61 ] At the start of the child protection proceeding, the Minister wanted Mr.

M: to be referred for a substance abuse assessment, therapy, counseling and treatment; to submit to random urine drug testing; to be referred for individual therapy and counseling; and to self-refer to New Start Counselling for counseling and treatment for anger management issues. [ 62 ] There has never been an order that Mr.

M refer for a substance abuse assessment, therapy, counseling and treatment or that he, in general, be referred for individual therapy and counseling though, as events transpired, he was referred to individual therapy and counseling for anger management. [ 63 ] At the risk management conferences where the Agency determined that a child protection application should be made, the concerns relating to Mr. M were his: a. “making numerous invalid reports against [Ms.

F]”; b. “emotional instability and inability to manage his anger”; c. “agitation and volatility with Agency staff when [C] is present”; and d. “actions behaviours during access pick up and drop off”. [ 64 ] The witnesses’ affidavits and testimony and the documentary exhibits make it possible to assess these concerns so I can better understand the situation in 2010 when the child protection application began. Essentially, there are two complaints: Mr. M’s repeated

referrals about Ms. F and his emotions (instability, anger, agitation and volatility), particularly in the presence of C. [ 65 ] With regard to “numerous invalid reports against [Ms. F]”, I’ve noted at paragraphs 13 to 15, that most of Mr. M’s referrals were never investigated. The case recordings indicate the referrals weren’t investigated because they were of insufficient severity to engage the Agency’s mandate or because it was thought that the referrals were intended to advance Mr. M’s position in his litigation with Ms. F.

Because many of the referrals didn’t pass the Agency’s threshold for an investigation, the Agency didn’t confirm whether they were true. The case recordings note that once when Mr. M made a report, he said his lawyer told him to report to the Agency. At another point, Mr. M said that he was working on building a case for custody and “his lawyer will likely subpoena the information that is reported”. He later said that he was recommended by the judge who dealt with Ms. M’s Maintenance and Custody Act application to contact the Agency if he had any concerns relating to C’s care when with Ms.

F. [ 66 ] In cross-examination, it was suggested that Mr. M had made “hundreds” of referrals to the Agency. Mr. M was prepared to admit that there might be one hundred referrals. There were no referrals in 2004. In 2005, he made five calls. Some of these calls arose because Mr. M sought information about an earlier referral he’d made to the Agency. His next referral came in early 2008. This is when he explained (according to the case recordings of January 14, 2008) “he was recommended by the judge to contact the agency should he have any concerns related to [C]’s case when in the care of his mother”.

From January 2008 to December 2009, Mr. M made sixteen referrals. Notably, in these referrals, Mr. M raises one issue repeatedly: C is left with Ms. W and Ms. F has told him that Ms. W was physically abusive to her when she was a child. [ 67 ] Mr. M admits that he’s been agitated and irate with staff at the Agency. Initially, this related to the fact that C had been placed with Ms. W for a much longer period than he had thought and he had not been advised C was seeing a counselor. On September 22, when Suzanne Mercer first met with Mr. M, she told him she hadn’t read the full file.

At that point, she’d had responsibility for the file (and thirteen others) for twenty-one days since she’d returned to work following a year-long educational leave. [ 68 ] Shortly thereafter, Mr. M met with more members of the Agency’s staff. The case recordings from a meeting on October 8, 2010 state a suspicion that Mr. M had been drinking. He was confronted about this and he denied it. When Mr. M left the meeting, one staff member called the police. Mr. M was stopped by the police who concluded that he wasn’t under the influence. [ 69 ] The claim that C was present when Mr.

M demonstrated “agitation and volatility with Agency staff” is not borne out by the case recordings. During a meeting on February 3, 2010 when Mr. M and C were both at the Agency office there was no reference to Mr. M being agitated or volatile. Later that year, on October 8, 2010 Mr. M was described as leaving a meeting “in an agitated state” where he “refused to calmly or rationally discuss the custody order” in Suzanne Mercer’s affidavit. According to Ms. Mercer, C was in the waiting room and Mr. M “did not understand how his demeanor could impact his son hearing his outbursts”. On this day, Mr.

M had met with two staff members. Both staff members entered case recordings about the meeting. Neither case recording by those who were actually present said that C was present or in the waiting room. Ms. Mercer wasn’t present and had no independent knowledge of where C was during this meeting. The only information from Agency staff is that C wasn’t present. Ms. Mercer admitted this mistake in her testimony. So, the Agency’s evidence to the time when the child protection application was begun indicates that when C was present, Mr. M didn’t demonstrate agitation and volatility with Agency staff and when Mr.

M did demonstrate this behaviour, C wasn’t present. [ 70 ] Historically, there were difficulties with access exchanges. For example, in September 2010, Mr. M berated Ms. F because C wasn’t wearing a hat. C was present when this occurred. Eventually, exchanges involved Ms. W because of difficulties in exchanges between Mr. M and Ms. F. After a problem occurred at an exchange with Ms. W (which I will describe further at paragraph 86, Mr. M absented himself from the access exchanges entirely. [ 71 ] Returning to the Agency’s concerns about Mr. M (his repeated referrals about Ms.

F and his emotional instability, anger, agitation and volatility, particularly in the presence of

C) and considering them with the information now available, I can appreciate why Mr. M wanted to challenge C’s placement with Ms. W. [ 72 ] My task is to determine whether there continues to be a need for a protection order, considering C’s changing needs and C’s family. I’m to consider if the circumstances that gave rise to the original order still exist and if C is still in need of the state’s protection. This is outlined for me in Children’s Aid Society of Halifax v. C.V . , 2005 NSCA 87 at paragraph 8 . The bases of the original order were sections 22(2)(b), (

g) and (ja) of the Act .

Generally, these sections refer to a substantial risk that a child will suffer physical harm inflicted or caused by a parent or caused by the parent’s failure to supervise the child adequately [section 22(2)(b)]; a substantial risk that the child will suffer emotional harm ( demonstrated by severe anxiety, depression, withdrawal, or self-destructive or aggressive behaviour) and the parent doesn’t provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm [section 22(2)(g)]; and the substantial risk that a child will suffer physical harm caused by chronic and serious neglect by a parent, and the parent doesn’t provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm [section 22(2)(ja)].

Anger management [ 73 ] The Agency’s concern about Mr. M’s behaviour is framed as a concern that he has an anger management problem which is variously described as emotional instability, anger, agitation and volatility. [ 74 ] Mr. M responds in three ways. First, he says that he has done as much as he can to satisfy the requirement he participate in anger management counseling. Second, he says that C is not exposed to the conduct of concern. Third, he says that he is justifiably irate when the Agency staff members do not do their jobs.

Anger management counseling [ 75 ] With regard to the first assertion, the Agency initially asked for an order that Mr. M self-refer to New Start Counselling “for the purposes of assessment and therapy, counseling and treatment for anger management issues”. Mr. M objected to this because New Start does not provide anger management counseling: it provides domestic violence counseling.

[ 76 ] Mr. M wanted to take

part in individual counseling and all the orders which addressed anger management spoke to this: he was never ordered to self-refer to New Start Counselling. Mr. M testified that New Start’s programming relates to domestic violence, not anger management and this is why he was not willing to attend New Start for anger management counseling. The Agency located a clinical social worker, Jackie Barkley, to provide this counseling. An appointment was scheduled for January 20, 2011 but Mr. M was unable to attend this because he was in Cape Breton with his ill father and it was re-scheduled. [ 77 ] Mr.

M came to the Agency’s offices for the re-scheduled meeting: road conditions were poor and Ms. Barkley didn’t attend. Thereafter there was discussion between Mr. M and Suzanne Mercer: Mr. M said that he’d agreed to an anger management assessment, not therapy. Ms. Mercer disagreed and consulted with Ms. Barkley. [ 78 ] The issue of how anger management was to be addressed was stalled until late March 2011. At that point, Mr. M describes himself as having a “breakdown”. He’d had repeated surgeries. He saw his doctor and was prescribed anti-anxiety and anti-depression medication.

He says while he was previously prepared to fight for his son, he no longer had the strength to do so. While he felt this way, he asked that his access visits be reduced and the placement hearing was cancelled. [ 79 ] Mr. M’s first meeting with Ms. Barkley was on May 5, 2011. They met again on May 19. According to Ms. Barkley, Mr. M was co-operative during their meetings. She agreed that their dealings were “open, honest and straightforward”. Because Mr. M felt he didn’t need anger management counseling and Ms.

Barkley was not going to offer counseling to someone who didn’t feel he had a problem, they spent these two meetings discussing her approach to counseling. She felt that this would allow Mr. M the opportunity to understand her and the process and come to trust it so he could decide whether to take part. At the conclusion of those two meetings, Mr. M was willing to continue to attend and to talk with her, but Ms. Barkley declined to proceed further on the basis that Mr. M didn’t admit to having a problem. [ 80 ] In August and September 2011, Mr. M asked Ashley Lekas, his social worker, if he could meet with Ms.

Barkley again. This was arranged and he attended further meetings. In her February 27, 2012 report Ms. Barkley wrote “While the sessions since Sept. were intense, I feel [Mr. M] was making a sincere effort to change deeply rooted defenses.” [ 81 ] When Mr. M found work in the fall of 2011, he asked that his meetings with Ms. Barkley occur in the evenings. He was already leaving work early twice each week for his visits with C and he was concerned about his employer’s response to an additional early departure (which would occur once every two weeks to accommodate his meetings with Ms. Barkley). Ms.

Barkley wasn’t willing to accommodate this request and said she “was left with the impression that [Mr. M] felt I needed to make the compromises and adjustments, rather than both of us”. In cross-examination, Ms. Barkley admitted that she was unaware that Mr. M already had to leave work early for access. [ 82 ] After Mr. M requested evening meetings, both he and Ms. Barkley contacted the Agency: Ms. Barkley did so on November 22, 2011 and Mr. M did so on November 28, 2011. Ms. Lekas said she wasn’t aware of any service providers who could provide counseling on evenings or weekends but that she would look into it.

The Agency made no further anger management counseling available to Mr. M. C isn’t exposed to inappropriate conduct [ 83 ] Mr. M’s second response to the Agency’s concern about his temper was to say that C isn’t exposed to inappropriate conduct. [ 84 ] Mr. M admitted that C witnessed the incident in September 2007 which ended his relationship with Ms. F. Mr. M says that C came in to the room where he and Ms. F were arguing, C tugged on Mr. M’s pants, crying, and asked if they could go outside to play. Mr.

M says that, with this, he realized the impact of his actions and that’s when he left. [ 85 ] Since this occurred, there have been various instances when Mr. M has taken steps to ensure C is not exposed to inappropriate conflict. Mr. M arranged to meet with C’s counselor, Sara Lamb, to discuss C. When he arrived, he found Ms. F in Ms. Lamb’s waiting room. Mr. M left. He said this was to avoid placing C in a stressful situation. H said that when he saw Ms. F on a bus, he’d avoid her or get off. [ 86 ] Mr. M hasn’t always been successful in shielding C from inappropriate conduct. In October 2010, Ms.

W reported to the Agency that Mr. M used obscene language in speaking with her at an access exchange in late September 2010. In cross-examination, Mr. M admitted that he’d collected C from Ms. W at a coffee shop and then put C “between two doors” at the entrance to the coffee shop. He then went back to speak to Ms. W. This is when he swore at Ms. W. He said that C could see what was happening, but he wasn’t sure whether C heard him or not. When Mr. M and C got to the car, Mr. M explained that he hadn’t been nice, C shouldn’t have been there and he would apologize to nanny. According to Mr.

M, as he drove away, Ms. W “gave him the finger”. Ms. W doesn’t recall this, but volunteered that she followed Mr. M out. [ 87 ] Since that incident, which occurred before this application, there’s no evidence that Mr. M has exposed C to a display of temper. [ 88 ] Case recordings support Mr. M’s claim that C isn’t exposed to inappropriate conduct. [ 89 ] Sara Lamb, C’s counselor, testified that some of the people who harbour anger or bitterness to their child’s other parent have difficulty putting aside those feelings and their feelings would be manifest to the child. Ms.

Lamb said that parents assume they don’t communicate much, without realizing that children are very observant of tone and expressions. [ 90 ] Jackie Barkley described Mr. M’s personality in her June 9, 2011 report. Two facets of his personality are particularly relevant: his absolutist thinking and his rigid intellectual and emotional framework. These features mean that Mr. M sees situations in black or white terms, without appreciating nuance and compromise. In a number of instances his rigid view has prompted an irate response. Ms. Barkley said that Mr.

M’s personality was a “risk” factor in raising a child. [ 91 ] As a result of these comments, I want to carefully review situations where Mr. M is described as agitated, irate, angry or

otherwise upset to see if Mr. M is correct in his assessment that C isn’t exposed to this. Quotations from case recordings and Access Facilitator Reports haven’t been edited. [ 92 ] In January and February 2011 there were a number of instances where C wasn’t brought to a visit or when his access visits began late. These occasions were on January 11, January 25, February 9 and February 14. The case aide responsible for transporting C for his visits and supervising the visits was Heather Loadman. January 11, 2011 visit [ 93 ] On January 6, Ms. Loadman determined she had to re-schedule Mr.

M’s visit from January 11 to January 12. She wasn’t able to reach him to tell him this, so Mr. M came to the office on January 11 expecting to visit with C. [ 94 ] The only case recording on January 11, 2011 is an email the reception clerk sent to Suzanne Mercer stating Mr. M: is requesting a meeting with Jill and Angela together “as soon as possible”. He advised me that he will be back tomorrow to find out when he is able to meet with Jill and Angela, as his phone is in Cape Breton. He also wanted to remind us that he will be here for his access on Thursday afternoon @ 2:30. [ 95 ] There’s no reference to Mr.

M acting inappropriately. It’s clear from the case recordings that Mr. M wasn’t made aware that his January 11 visit had been re-scheduled to January 12. Nowhere is there any explanation why the access visit didn’t occur or that Mr. M was ever offered an explanation. Mr. M wasn’t told the visit would occur the following day, even when he confirmed that he’d be there for his access on Thursday (which was January 13). As a result, Ms. Loadman’s Access Facilitator Report for January 12 says the visit was “CANCELLED” and “apparently [Mr. M] did not know about the change in his schedule”.

January 25, 2011 visit [ 96 ] Case recordings indicate that Mr. M was at the Agency’s offices. He left a letter at the desk for Ms. Mercer. The case recordings say nothing untoward about this. It’s only apparent that a visit is missed on this day because Ms. Loadman wrote an email to Suzanne Mercer on February 17, 2011 in which she says: January 25, 2011 – Rescheduled access from 2:15 to 2:45 so [C] would not miss any school. Could not reach [Mr. M]. We arrived on time for 2:45 visit. [ 97 ] There is no Access Facilitator Report from the visit on January 25, suggesting that while Mr.

M went to the Agency’s office (which is documented in the case recordings), he didn’t remain when access didn’t start when scheduled. February 9, 2011 visit [ 98 ] On February 9, the reception clerk sent Suzanne Mercer an email saying that Mr. M wanted a message passed along to her that he was “unhappy” that Ms. Loadman was late. [ 99 ] Ms.

Loadman’s Access Facilitator Report notes, with regard to the pick up: I extended my previous visit to make up for a storm day, and when the bank machine was not working downstairs I had to go to the drug store to get $3.00 for the parking lot which had me running approximately 20 minutes late. I called [C]’s grandmother and I said I would call her when I was on route. She offered to have [C] downstairs waiting for me. I tried to contact [Mr. M], however I could not reach him via his cell phone. I called the office and informed the receptionist I would be approximately 15 minutes late.

When we arrived, we got into the elevator and [C] realized he had forgotten his markers in the car. He wanted to go back for them because he had made a deal with his father that if he brought in the markers he could take home some paint. So we returned to the car and did not get upstairs until almost 2:55. According to one of the access facilitators in the office , [Mr. M] had been upset and had requested to speak to a Supervisor. I apologized to him and added the time to the end of the visit. [emphasis added] [ 100 ] Here, Mr. M is described as “upset” by another access facilitator. It is not Ms.

Loadman’s observation of Mr. M. The other access facilitator says that Mr. M asked to speak to a supervisor, but that request isn’t in the reception clerk’s email to Ms. Mercer. In terms of the visit itself, I am quoting Ms. Loadman’s observations in their entirety. The visit lasted ninety minutes. [Mr. M] greeted his son with a smile and gave no indication he was perturbed about our late arrival. He gave his son a hug and a kiss, he sat him on his lap for a few minutes and asked him about his day. He offered him a snack, [C] asked him what he had brought, but [C] said he did not want anything. [Mr.

M] asked him what he had eaten and [C] told him a “Nutella sandwich”. [Mr. M] made a comment about Nutella not being allowed at school because it was made from nut products. We informed him schools were closed today due to the snow storm. [C] told his father about some games/movies that his brother was going to get be given “he will be able to play burned games”. [Mr.

M] informed his son, he does not believe in using burned disks because it is illegal; he added “if you are going use games you should buy them”. [C]s father told him it was up to his Nanny, and then looked at me and said “see what I mean?” On one occasion when [C]’s father spoke to him, [C] ignored him. [Mr. M] responded “Did you hear me? What do we do when we hear each other? We say something – we respond and acknowledge each other OK?”

[Mr. M] asked [C]: “What do you think – I will get my hair cut at the end of the month?” [C] and his father sat at the small table together and [C] drew a picture for his father of a Jet Pack. They talked about where they would go. [C] told his father he would take him with him to Disney World. They talked about Disney World memorabilia. [Mr. M] said things like: We always played outside at our house. We seldom watched TV or played Video games – even if it rained. [C]’s father directed his son to wash his hands before he ate. He went to the washroom with him and they both washed up. [Mr.

M] brought a variety of items for [C] to choose from: Dried apricots Apple A fruit cup (peaches and pears) Chocolate pudding Dried cranberries [C] chose to have the apple, his father brought an apple cutter, it cored and sliced it. [C] snuggled up on his father’s lap, snacked on his apple and listened intently while his father read him a book called Monsters Inc. They pointed out items and characters in the pictures and discussed the story as it progressed. [Mr. M] stopped when he thought [C] might no understand the meaning of a word, like toxic and disbelief, and gave him a definition. [Mr.

M] often told his son he loved him, he loved him so much he could squeeze him till his head popped off and occasionally mentioned he missed him. [Mr. M] was affectionate. He often touched [C], ruffled his hair, kissed him, rubbed his back, sat [C] on his lap and tickled him. He praised [C] when he used his manners, for working hard at school, remembering the markers getting Gotcha’s at school and sounding out words. By 4:00 [C] had eaten his fruit cup, his chocolate pudding, the apple and was snacking on the dried cranberries. I like it when you cuddle with me.

Soon you will grow up and you won’t want to sit on my lap anymore. [C] laughed and said “yes I will!” [C] chose another book for his father to read called Richard Scarey’s Great Steamboat. Mystery. At 4:20 [Mr. M] suggested [C] wash his hands and face. [C] ended up using the bathroom. When he came out he had urinated in his pants – he had not been able to get them undone in time. [Mr. M] responded by acknowledging it was tough to get them undone sometimes, it was an accident, accidents happen. He helped [C] get his coat and hat on and I helped clean things up. [Mr.

M] headed out at approximately 4:30 and when we got downstairs he was at the bus stop. I buckled [C] into his booster seat, and his father came over and gave him a kiss good-bye.

They waved at each other as we left the [the sentence ends there] February 14, 2011 visit [ 101 ] On February 14, 2011 there is a case recording made by Suzanne Mercer noting that she received an email from the reception clerk which said: Today at 1:03 pm, Mr. [M] came to the desk and told me that he is going for a smoke and asked that I send an email to you because he said that today was the 4 th time which Case Aide Heather was late arriving for his access visit. He stated that he wanted her to be removed as the Case Aid.

He expressed his concerns to me in a stern and frustrated manner . [emphasis added] [ 102 ] According to the notes, Mr. M was told at 1:10 that Heather Loadman was running “about 5 minutes late”. Mr. M “immediately said that it is not the child’s fault for being late and again stressed this was the 4 th time.” Mr. M wanted the reception clerk to send Suzanne Mercer an email to have Heather Loadman removed as his Case Aide. [ 103 ] Ms. Loadman’s Access Facilitator Report from the February 14, 2011 visit state: I picked up [C] at his residence this afternoon.

I arrived at 12:50, however according to his grandmother [C] had just run upstairs to “take a pee”. I talked with her for awhile and then suggested it seemed to be taking quite awhile for him to be just “taking a pee”. [C]’s grandmother rang the buzzer and spoke to [B]. She asked him if [C] was still in the bathroom, and asked him to hurry up because I was waiting. [B] said [C] had diarrhea and had pooed all over the toilet seat. I could hear him yelling at his brother to hurry up. Eventually [C] came downstairs and we headed out. I could smell feces and asked [C] if he had managed to clean himself up properly.

He said he had. I suggested he may have something on his boots. I told him his dad might help us out with that once we got to the office. [ 104 ] Under the heading “General Observations During Visit”, Ms. Loadman wrote: [C] said his grandmother had given him medicine for his cold “she makes me have the purple stuff – you know how I don’t like it”. [Mr. M] asked him if it was a prescription or if it was Tylenol. I told [C]’s father his grandmother had no mentioned it to me. [Mr. M] greeted his son in the reception with a smile.

Once we were in I explained [C] had to go upt tothe washroom just as I arrived at his grandmothers. Although he said he need to urinate, when he came downstairs with his brother, [B] announced he had diarrhea and had “pooed all over the toilet seat.” I noticed a smell once we started the transport to the office. I let [Mr. M] know quietly and he

attended to cleaning up his son. I stood at the bathroom door. According to [Mr. M] [C] had feces along his backside and his underwear was thrown out. [Mr. M] brought crackers, home made bread, salmon an apple and a fruit cup. [C] seemed to enjoy the fish. [C] told his father he could not find something. His father said “Remember how we used to have it. We had it organized. We had things that we played with all the time in one spot . . . if you have your things put away you know where they are when you want them.

I would imagine they are in the house some where – it is very important to keep things organized – thats why I keep my bag packed so I am organized”. [C] told his father they were trying trying to win a vacation on the Bounce – a Westjet vacation, a trip to Alaska and lots of money. [Mr. M] asked: “Bounce – is that that Rap Station?”. I told him it was a “light rock” station. [C] suggested if they won “me, you and nanny could move and find a bigger house” [C]’s father responded “would n’t you miss your mommy?” [C] said with a big grin: “we could call her.” [Mr.

M] pulled his son onto his lap and hugged him. [C] laughed and hugged his father while his father tickled him and gave him some big snuggles. [C]’s father said “You know something, I really missed you this week when you were not home. [C]’s father brought a Power Ranger book. It had magnetic pages and included magnetic cut outs of the book’s characters. [C] led the play and made up the story line. “I like to get interactive games so he can use his brain”. He took [C]’s head between his hands and kissed him. [Mr. M] often got Kleenex for his son and helped him blow his nose.

On one occasion he twisted the Kleenex and used it to clean out [C]’s nose. He made comments about [C]’s snot box and snot factory. [C] and his father interacted throughout the access visit. They played hockey, made ramps, played with a robotic bug and used the magnetic book. Cleaned up at 2:33. He said good-bye at 2:40. [C] gave his father a “Super Hug”. His father told him he was the best hugger and added “You are the best and I love you”. When we got to the car [Mr. M] was waiting at the bus stop. He helped [C] into his seat and said a quick good-by again. [ 105 ] Ms. Mercer didn’t respond immediately to Mr.

M about his request that Ms. Loadman be replaced. Two days later, Mr. M met with the Casework Supervisor, Angela Jones. Ms. Mercer had planned to attend this meeting but she was ill. One concern that Mr. M raised at the meeting was that “one of the case aides has been late for the last four visits and that C was covered in feces at the last visit after having had diarrhea.” [ 106 ] On February 17, 2011 Heather Loadman sent Suzanne Mercer an email about the missed and late visits. Heather Loadman’s email is reproduced in the case recordings. In her email, Ms. Loadman writes that the visitation

schedule was changed from January 11, 2011 to January 12, 2011 and no one informed Mr. M of this. The email says: I was unable to contact [Mr. M] (attempted phone calls, social worker and text messages) and when he came into the office on the 11 th for his visit (Suzanne [Mercer] and Kevin [the reception clerk] were aware), they forgot to tell him about the 12 th because he was making quite a fuss . I could not reach him. [emphasis added] [ 107 ] I don’t know the basis for Heather Loadman’s statement that Mr. M “was making quite a fuss”: she wasn’t present to observe his reaction.

Suzanne Mercer made no notation in the case recordings of seeing or speaking with Mr. M on January 11. The fact that the reception clerk sent Ms. Mercer an email detailing what happened when Mr. M arrived for his visit suggests that Ms. Mercer wasn’t present. The only person who seems to have been present was the reception clerk and his contemporaneous email to Suzanne Mercer doesn’t describe Mr. M behaving inappropriately or making a fuss. [ 108 ] Ms. Loadman’s February 17, 2011 email to Ms. Mercer said that on January 25, 2011 “Rescheduled access from 2:15 to 2:45 so [C] would not miss any school.

Could not reach Mr. M. We arrived on time for 2:45 visit.” Case recordings reflect no efforts to contact Mr. M to tell him his visit would be one-half hour late in starting. Mr. M was at the Agency offices on January 25: the case recordings indicate he collected a letter left for him by Suzanne Mercer and left a note for her. There is no Access Facilitators’ Report for this date. There are no records of inappropriate behaviour. [ 109 ] Mr. M reported a number of concerns to Angela Jones on February 16, 2011 including his request that Ms. Loadman be replaced. On February 23, 2011 he met with Ms.

Mercer and the Acting Supervisor to discuss his concerns, including his concern about Ms. Loadman’s tardiness and her blaming C for being late. [ 110 ] On February 23, 2011 Ms. Mercer and Heather Loadman discussed Mr. M’s concerns about Ms. Loadman. The case recordings of this meeting include the statement “Heather advised worker that she would never know that [Mr. M] is upset with her because he does not show it during the visit ” [emphasis added]. [ 111 ] This observation is echoed in the recordings on March 2, 2011 when Ms. Jones says I advised [Mr.

M] that all of his visits go very well and that no one has raised a concern about his interactions with C. I explained that to the contrary, it is remarkable how [Mr. M] can be so frustrated and agitated when meeting with Agency staff, however, be able to calm down and attend and behave like the meeting had not occurred . [emphasis added] [ 112 ] It is clear from Heather Loadman’s notes that regardless of problems with his access, Mr. M did not display any untoward emotion in C’s presence.

His conduct in these sessions (which is representative of his conduct in his other access sessions) is exemplary: he brings nutritious snacks, he brings activities, he interacts with C on C’s level, and he uses opportunities that present themselves to reinforce appropriate behaviour, such as sharing and using good manners. He helps C wash his hands before eating and at the end of the

visit. They clean up the access room at the end of their visit. [ 113 ] Neither Ms. Lamb nor Ms. Barkley were asked about these situations so I don’t know if or how this information might affect their views about the risk Mr. M poses to his son. Ms. Barkley has said that Mr. M is extremely intelligent and his intelligence may play some

part in his ability to isolate his feelings from his involvement with C. Ms. Lamb’s view of C’s relationship with the adults in his life might be influenced by C’s comment that if they won the radio contest, that he, Mr. M and Ms. W would live together. Ms. Lamb saw C with Ms. W, but not with Mr. M. [ 114 ] The comments of Heather Loadman, whose job it is to observe and record events at access visits, and those of Angela Jones, the social worker who is the Dartmouth District Office Casework Supervisor, are that Mr. M’s upset, frustration and agitation are non- existent when he is with C.

Their observations and assessments are consistent with Mr. M’s assertion that he does not expose C to inappropriate behaviour. Mr. M is “justifiably irate” when Agency staff aren’t doing their jobs [ 115 ] In some regards, the Agency attempts to judge C’s situation by Mr. M’s relationship with Agency staff. Mr. M’s demeanour in dealing with Agency staff is listed as one of the criteria by which progress on the case plan is assessed. [ 116 ] Angela Jones, the Casework Supervisor, explained that it’s not unusual for there to be difficulty when the Agency is gets involved with a family.

She said that after time, relationships develop and cases progress. For Mr. M, there was ongoing tension with the Agency: at times Mr. M worked cooperatively with Agency workers, and at other times there were significant disagreements. None of the Minister’s employees (Angela Jones, Suzanne Mercer of Ashley Lekas) would say that Mr. M’s conduct was always bad. Ms. Jones said that Mr.

M would yell at workers if he felt they were not doing their jobs. [ 117 ] The Agency’s recordings about this family begin in June 2004, a few months before C was born. [ 118 ] The couple’s first extended separation began in February 2005, after Mr. M was charged with assaulting Ms. F. During 2005, Mr. M made referrals to the Agency about Ms. F. In October 2005 he told a worker that he “is frustrated by the fact that the agency will not investigate the matter as he has called several times.

He stated that he feels that the agency does not believe him because he has been charged and has an undertaking.” In fact, when his referrals were analysed, the case recordings document that one consideration (often fatal) in the decision not to investigate was Mr. M’s own credibility, which was seen as questionable in light of the outstanding charge. This was just as Mr. M feared. [ 119 ] When the Agency began to work with Ms. F on a voluntary basis in 2010, Mr. M was asked if he’d agree to take C into his home on a temporary basis. When Ms. F wouldn’t provide the letter or court order that Mr.

M wanted to ensure that C wouldn’t be removed whenever Ms. F changed her mind, and Mr. M said he would take C without a letter or court order, the Agency wasn’t willing to place C with Mr. M, and placed C with Ms. W instead. [ 120 ] C was placed with Ms. W on a long term basis and counseling was arranged for him. Mr. M wasn’t informed of this and, according to Ms. W, she was asked by an Agency worker not to tell Mr. M that C was living with her. The Agency says that while its involvement with Ms.

F is voluntary, it isn’t for the Agency to interfere with the parents’ relationship, but for the parents to deal with each other. However, this approach of staying out of the parents’ dispute is undermined where the Agency has involved itself, by asked Ms. W not to tell Mr. M where C is living. [ 121 ] Mr. M came to the Agency in search of information on September 22, 2010. Suzanne Mercer had been assigned the file (and thirteen others) on September 1 when she returned to work after a year-long educational leave. She’d made announced and unannounced visits on Ms. F and visited Ms. W. When Mr.

M came to see her, she told him that she hadn’t fully read the file. [ 122 ] After the child protection application started, Agency materials were regularly disclosed to the parents. [ 123 ] Suzanne Mercer testified that when referrals are made about a parent, the normal procedure is to call the parent about the referral. She admitted that when a referral came in about Mr. M, he wasn’t asked about the referral and given a chance to respond to it. She said it was “very difficult” to communicate with Mr. M and that some of the information would come from documents that were ordered to be produced.

I was not provided with copies of all documents that resulted from the production orders which were granted in the fall of 2010. More than once, Mr. M pointed out that materials such as the police files simply record what someone has said: it doesn’t make the remarks true. As such, documents produced as a result of the production orders aren’t equivalent to an investigation. The failure to investigate referrals with Mr. M fell short of the Agency’s own procedure for investigation and contributed to Mr. M’s concern that he was not being treated properly by the Agency. [ 124 ] Ms.

F’s visits with B and C occurred outside Agency offices (either at her mother’s home or her own home) and Ms. Mercer, who was the social worker for both Ms. F and Mr. M, was present for many of them. In contrast, until June 2011, Mr. M’s visits occurred at Agency offices and weren’t supervised by Ms. Mercer or, when she was replaced, by Ms. Lekas, but by a Case Aide. [ 125 ] Mr. M repeatedly raised certain issues with Suzanne Mercer such as C’s use of his nasal spray and puffers, and the propensity of Ms. W and Ms. F to discuss “adult” topics in front of C. Mr.

M believed there was little to no progress in dealing with the problems he identified. He was frustrated with his social worker, Suzanne Mercer, about this and wanted her replaced. It was months before this happened in May 2011. Mr. Mercer was replaced when the Agency concluded that her involvement was perceived by Mr. M to be a barrier to his progress and the Agency decided to remove that barrier. [ 126 ] When a new social worker was assigned to him, she didn’t attend court appearances and Mr. M felt that she was unaware of what was happening in court. [ 127 ] Mr. M learned that Ms. W and Ms.

F participated in C’s counseling sessions with Sara Lamb. When he asked to attend, Ms. Lamb asked C for input before deciding that Mr. M could not participate. In contrast, C wasn’t asked whether his mother or grandmother

could attend. [ 128 ] As noted at paragraphs 92 to 108, Mr. M’s Case Aide was repeatedly late bringing C to access over many weeks. It was weeks before she was replaced. [ 129 ] In March 2011, when Mr. M asked for his mother to have visits with C, he was told that his mother must undergo a police record check. No similar check was required of Ms. W when the children were placed in her home. After this issue was discussed in court, a police check was done for Ms W. [ 130 ] Also in March, Ms. Mercer consulted with Angela Jones about the fact that Mr.

M had missed his past four access visits without calling to cancel or re-schedule them. The Case Aide identified that the telephone number provided to Mr. M to use to confirm visits was incorrect. Even though this error was the Agency’s, Mr. M was told that if he missed another visit, his visits would be suspended. [ 131 ] Mr. M attended an “access review meeting” in April 2011. He thought that at this meeting, he and Agency staff would review his access and he could propose changes to his access before the Agency decided what changes to make.

At the meeting he learned this wasn’t a review meeting, it was a report meeting. There had already been an earlier staff meeting to decide upon changes to his access and he was given no opportunity to offer any input into the decision. Mr. M’s upset at learning this meant that his access would not be expanded as had earlier been planned. [ 132 ] It’s likely these aren’t the only complaints that Mr. M has with the Agency. These easily come to mind from the testimony I heard and from various appearances during the course of this proceeding. [ 133 ] I don’t want to get too distracted by the question of whether Mr.

M’s ire with the Agency was justified. The decision before me is whether C should be returned to Mr. M or placed in Ms. W’s care following a permanent care order, and the relationship between Mr. M and the Agency has limited relevance to that decision. However, the relationship does need to be addressed. Unquestionably, the client/Agency relationship would have been smoother if Mr. M’d overlooked these situations and others where he believed he was being treated improperly or differently than Ms. F. [ 134 ] As Mr.

M testified, he isn’t silent when he thinks something is wrong, especially in matters relating to his child. In some cases, the Agency clearly fell short of what should reasonably be expected of it: Ms. Mercer admitted she didn’t follow normal practice by allowing Mr. M to comment on referrals about him. Mr. M was given an incorrect phone number and, when he was unable to confirm or cancel his access as a result, he was threatened with its suspension. C was repeatedly brought late to access. In other cases, the Agency’s policies and practices may have been followed, but they were such that Mr.

M felt he was treated unfairly: his mother needed a police check before access with C, while Ms. W didn’t need a police check before C was placed with her; the access review meeting wasn’t a consultation. [ 135 ] In some regards, Mr. M’s ire was justified because the Agency didn’t follow its own procedures. [ 136 ] In other regards, the Agency workers were insensitive to Mr. M’s experience: one possible result of the Minister’s application is Mr. M’s permanent loss of his child. Agency staff are well educated and professionally trained. Here, the Agency workers either failed to appreciate how Mr.

M viewed situations or failed to adjust their approach to him to accommodate his views. It’s reasonable that Mr. M would expect more. His upset in the circumstances is to be expected. Mental health [ 137 ] No specific concern was identified with regard to Mr. M’s mental health in the initial child protection application: the Minister’s concern was framed as concern about Mr. M’s emotions (instability, anger, agitation and volatility). The Minister, Ms. F and Ms. W all point to the fact that Mr. M hasn’t completed a mental health assessment and argue that concern about Mr. M’s mental health hasn’t been alleviated.

Mr. M says that he’s done all possible to complete a mental health assessment. Further, there’s evidence of Mr. M’s own efforts to address his competency to parent. Mental health assessment [ 138 ] On January 24, 2011 I ordered Mr. M to self-refer for a mental health assessment. Mr. M went to his doctor and was re-directed to a community mental health clinic. He went to the Cole Harbour Community Mental Health office on February 22. This isn’t the mental health office closest to Mr. M’s home. He says he chose this office because Ms. F was being seen at the office closest to his home. [ 139 ] Mr.

M asked for a mental health assessment, explaining that the court ordered him to do this. He was told that court-ordered assessments are not done: assessments are done only for individuals who say they want or need an assessment or counseling. Since Mr. M wanted the assessment solely to satisfy a court order, the service wasn’t available for him. [ 140 ] Mr. M reported this to Suzanne Mercer, who called the Cole Harbour office. Mr. M’s description of the availability of a mental health assessment was confirmed. It was left to Ms.

Mercer to deal with this problem. [ 141 ] A further intake appointment was arranged at the community mental health clinic on April 19. Mr. M cancelled this visit when he became frustrated with the Agency. By mid-May, he had called to re-schedule. He returned to the mental health clinic on July 21, 2011. By this point, he no longer felt he needed the clinic’s assistance because he was seeing and being treated by his own doctor. Mr. M reiterated his willingness to participate in an assessment arranged by the Agency. The case recordings note no further steps by the Agency at this point. [ 142 ] Mr.

M arranged another appointment at the Cole Harbour Mental Health office for September 6, 2011. There’s no mention in the case recordings whether Mr. M attended this appointment. There’s no mental health assessment, so either he did not attend or, if he did, his request for services was again rejected.

[ 143 ] In his affidavit, Mr. M deposed that he went to the Nova Scotia Hospital and asked for a mental health assessment. In his affidavit, he also deposed that he telephoned the forensic hospital attached to the “Burnside Jail” (the Central Nova Correctional Facility). He was unable to obtain an assessment through either source. It appears Mr. M relayed at least some of the information he learned about the availability of assessments to Ms. Lekas, though this didn’t result in an assessment. [ 144 ] When Mr.

M was unable to self-refer for the mental health assessment, he let Agency staff know so the Agency could solve this problem. It didn’t. [ 145 ] The requirement that a parent self-refer for a mental health assessment is a confounding one. A self-referral can only be made if the parent claims to need mental health services. A parent who doesn’t feel the need for these services or who believes that sufficient mental health services are being accessed elsewhere must lie in order to comply with the order to self-refer. I wonder what happens to the parent who tells this lie.

How does the parent answer the clinician’s questions about the claimed need for services? What does the clinician make of the answers in assessing the parent’s mental health? What would Yossarian say about this Catch-22? [ 146 ] I find that Mr. M made reasonable efforts to self-refer for a mental health assessment. Mr. M’s efforts to address his mental health [ 147 ] In the spring of 2011, Mr. M reported to Agency staff that he wasn’t emotionally ready to have C with him full time. He said that he had recently started taking anti-depressant and anti-anxiety medication prescribed by his doctor.

He sought adjustments to his access

schedule to accommodate his health. Mr. M was encouraged to attend the mental health offices, though he was under his own doctor’s care. [ 148 ] In late September 2011, Mr. M asked the Casework Supervisor, Angela Jones, and his social worker, Ashley Lekas, what he would need to do to prove to the Agency that he was able to parent C. He was told “the Agency will need to have input by and confirmation from [Mr. M]’s doctor who is prescribing him medication that his mental health is being managed and that [Mr. M] could assume a parenting role.” It was acknowledged that Mr.

M had provided consent to speak with his doctor. In cross-examination, Ms. Lekas admitted that Mr. M’s doctor wasn’t contacted for confirmation about Mr. M’s fitness to parent until January 12, 2012 when the doctor said that Mr. M was managing his depression and anxiety and taking medication. The doctor reported no concerns about Mr. M, according to Ms. Lekas. [ 149 ] I find that Mr. M took appropriate steps to address deterioration in his own mental health: he contacted his doctor, he took prescribed medication, he adjusted his access with C to a level that was manageable for him and on which C could depend.

Drug and alcohol use [ 150 ] At the risk management meetings which preceded the child protection application, Mr. M’s use of alcohol or drugs was not mentioned as a basis for the Agency’s claim that C was in need of protective services. In February 2005 when he was charged with assaulting Ms. F, Mr. M was intoxicated, according to the police records. [ 151 ] During her cross-examination, Suzanne Mercer said that to her recollection there’s been no referral to agency about Mr. M’s drug or alcohol use. [ 152 ] Mr.

M volunteered information to the Agency about his “raging alcoholism” when he was in his twenties, his binge drinking in the past and his use of marijuana. He’s willing to describe himself as an “alcoholic”: he does this, he says, on the basis of his mother’s description that a person with an alcohol problem is always an alcoholic even if he or she maintains sobriety. He says he hasn’t used alcohol or drugs while caring for C and there’s no evidence to the contrary. [ 153 ] There was no suggestion or indication that Mr. M has abused prescribed medication. To the Agency and me, Mr.

M outlined his use of prescribed medication for anxiety and depression. He authorized the Agency to obtain information from his doctor. Ashley Lekas spoke with Mr. M’s doctor on January 12, 2012 who reported that Mr. M was managing his depression and anxiety and taking medication. The doctor reported no concerns, according to Ms. Lekas. [ 154 ] Mr. M recently stopped taking prescribed medication under his doctor’s supervision. Random urine drug testing [ 155 ] At the November 2011 review hearing, Mr. M agreed to make himself available for drug testing for period of five weeks, beginning on December 14.

Drug testing involves random visits during pre-selected hours when a urine sample is collected. It isn’t known when the collection agency representative will attend to collect a sample. The person is required to be available for a two hour period each day and, if a random visit occurs, it will occur during that time. Mr. M says that the hours when he would be available should start after 8 p.m. so C’s access would be over and C would not be there when the nurse came for a urine sample and he says that this was discussed at court on November 10. Ms. Lekas was not at court that day.

Regardless, the Agency would be aware of the

schedule of C’s access with Mr. M. [ 156 ] On December 13, 2011, Mr. M left voicemail for Ashley Lekas saying he’d be working in Cape Breton and be unavailable for testing. The case recordings note his message on December 13 and record a responding message from Ms. Lekas that random urine testing couldn’t begin until a time was set for him to be home. Mr. M testified that he asked what he could do to ensure he met his obligation and even offered to have blood drawn in Sydney and sent to Halifax at his own expense for testing.

This isn’t in the case recordings and I don’t know if this offer was made in a voicemail message or during Mr. M’s conversation with Ms. Lekas. Ms. Lekas didn’t deny this testimony. [ 157 ] According to Mr. M, Ms. Lekas wasn’t aware that the time for the testing was set at court in November because she wasn’t being informed of what was happening in court and she wasn’t attending herself. In any event, Ms. Lekas was waiting for confirmation of a

testing time before arranging the testing, while Mr. M believed the testing time had been resolved in court in November. I should be clear that there was no discussion on the record of the hours when Mr. M would be available for testing. If it was discussed on November 10 it was done outside the courtroom and I acknowledge that frequently there are discussions between the parties before or after the court appearance. No one disputed Mr. M’s testimony that the testing time had been discussed on November 10. [ 158 ] Mr. M left another message for Ms. Lekas about the testing on December 14. On December 16, Mr.

M and Ms. Lekas finally spoke to each other about the random urine testing. According to the case recordings, Ms. Lekas left it with Mr. M to advise her when he was able to begin testing and he didn’t do this. On December 20, 2011, Mr. M left a voicemail for Ms. Lekas asking about doing hair follicle testing starting on January 20, 2012 . This was not put in place. [ 159 ] Mr. M hasn’t participated in random urine drug testing. A parent’s abuse of alcohol or drugs while responsible for caring for a child is a cause for concern: since 2005 there have been no reports of Mr.

M abusing alcohol in C’s presence and there is no record of any report of abuse of drugs, prescribed or otherwise. Analysis [ 16

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