Nova Scotia (Minister of Community Services) v. A.R., 2019 NSSC 1

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Nova Scotia (Minister of Community Services) v. A.R. 2019 NSSC 1 Date: 2019-01-21 Docket: SFHCFSA 105844 Registry: Halifax Between: Minister of Community Services Applicant v. A.R. and G.B. Respondents LIBRARY HEADING Judge: The Honourable Justice R. Lester Jesudason Heard: September 18, 19, 27, 28, October 1, 25, November 6 and December 5, 2018 Written Decision: January 21, 2019

Summary: Application by Minister for permanent care and custody of 19-month-old child. Application dismissed. Key words: Permanent care and custody, best interests of the child, domestic violence, anger management neglect. 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. A.R. , 2019 NSSC 1 Date: 2019-01-21 Docket: SFHCFSA-105844 Registry: Halifax Between: Minister of Community Services Applicant v. A.R. and G.B. Respondents Judge: The Honourable Justice R.

Lester Jesudason Heard: September 18, 19, 27, 28, October 1, 25, November 6 and December 5, 2018 Final Written Submission: Written Release: December 6, 2018 January 21, 2019 Counsel: Elizabeth Whelton Q.C., for the Minister of Community Services A.R., self-represented G.B., not participating 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: Index 1.0 Overview…………………………………………………………………… para. 1 2.0 History……………………………………………………………………... para. 9 3.0 The Law……………………………………………………………………. para. 22

4.0 Burden of Proof……………………………………………………………. para. 25 5.0 Parties’ Positions……………………………………………………........... para. 26 6.0 Substantial Risk……………………………………………………………. para. 31 7.0 The Minister’s Current Concerns…………………………………............... para. 33 a. Domestic Violence………………………………………………. para. 33 1. Pamela Rubin’s evidence……………...………………… para. 39 2. Ms. R’s evidence………………………………………… para. 65 b. Anger Management………………………………………............ para. 92 1. Pamela Rubin’s evidence……………………………….. para. 93 2. Ms. R’s evidence………………………………………… para. 96 3. Evidence of Minister’s Witnesses………………………..para. 99 c.

Instability and lack of viable plan……………………………….. para. 104 8.0 Conclusion………………………………………………………………… para. 113 1.0 Overview [ 1 ] The Minister of Community Services has applied for permanent care and custody of 19 month old, D, claiming that his mother, Ms. R, is unable to protect him from a substantial risk of physical and emotional harm. [ 2 ] D was taken into the Minister’s care at birth. He’s the fifth child of Ms. R taken into the Minister’s care. In my decision, Nova Scotia (Minister of Community Services) v. A.R., 2018 NSSC 86 , released on April 24, 2018, I granted the Minister’s application to place Ms.

R’s four oldest children, aged 9, 4, 2 and 2, into the Minister’s permanent care and custody. [ 3 ] Mr. B, the biological father of the three youngest of those children, didn’t participate in the first proceeding except for some very limited initial involvement. He’s also the biological father of D and hasn’t participated at all in this proceeding despite having notice of it. [ 4 ] In my prior decision, I noted the daunting challenges faced by Ms. R in having her children returned to her care. They included: • She was the victim of repeated intimate partner/domestic violence perpetrated by Mr.

B, a person she loved; • She understood that her four older children had witnessed the domestic violence and had been emotionally harmed by what they saw; • She was expected to leave Mr. B and raise all five children on her own. To do this, she would need to secure new housing and a stable source of income. She had no job because she was looking after the children.

She also didn’t have a driver’s license to assist with transporting the children; • She was expected to make these significant changes to her life while juggling attending access visits with the children and participating in services requested by the Minister; • She had been told that, despite regularly attending access and participating in services, the Minister was seeking to place her four older children in the Minister’s permanent care with a plan to have them adopted by people she would never know. The Minister also opposed her having any further contact with the children if placed in permanent care; and

• She had to prepare for and attend a multi-day trial, seeking to have those children returned to her care. [ 5 ] Ultimately, I found that Ms. R wasn’t able to overcome these challenges in the time allowed to complete the first proceeding. In ordering that all four children be placed in the Ministers’ permanent care and custody, I stated: • Ms. R hadn’t made sufficient progress in addressing the impact that repeated exposure to domestic violence had on her children. She had only recently recommenced counselling to help address the negative impact that domestic violence had on her and the children. • Ms.

R hadn’t taken steps to try to secure a stable source of income to support the children or secure housing for them. She was living with her father and his girlfriend in their apartment which she acknowledged couldn’t house the children. • Ms. R’s access with her children, including D, had only progressed to a limited basis in the community. Given that she hadn’t secured stable housing, no access visits had occurred in a home setting so that Agency workers could assess where the children would live, or how she would care for them in her new home. • It wasn’t in the children’s best interests to be returned to Ms.

R’s care. They had been exposed to repeated domestic violence while in her care. The expert evidence indicated that the children would likely destabilize if returned to Ms. R’s care and doing so would likely negatively impact on their healthy development when they were just showing signs of getting over their unfortunate past experiences. • The four oldest children’s futures could wait no longer. They required stability and certainty which Ms. R couldn’t provide. [ 6 ] The parties acknowledged that the outcome of the first proceeding didn’t determine what would happen to D.

They agreed that there was still time for Ms. R to try to address the child protection concerns so that he could be safely returned to her care. [ 7 ] Notwithstanding this, three days after my decision was released, the Agency held a Risk Management Conference and made a decision to also seek permanent care and custody of D. The Agency’s long-term social worker for both files, CB, who has been involved with Ms. R since July 2016, testified about why the Agency sought permanent care. In response to questioning from the Minister’s counsel, she said: • “nothing has changed” with Ms. R since 2016; • Ms.

R was still seeing Mr. B so D would witness domestic violence. Ms. R hasn’t chosen D over Mr. B and is unable to protect him from exposure to domestic violence; • D could potentially be hurt, neglected and have his needs unmet if returned to Ms. R’s care; • Ms. R hasn’t “put in the work” to sufficiently mitigate the risk of harm necessary to return D to her care and hasn’t shown any significant progress in addressing the child protection concerns; and • Ms. R lacks insight into the child protection concerns. [ 8 ] I disagree. I conclude that the evidence demonstrates that Ms.

R has made considerable progress in addressing the child protection concerns since my last decision which warrants D being returned to her care. My reasons follow.

2.0 History [ 9 ] In paragraphs 9-41 of my prior decision, I discussed the relevant family and procedural history of the first proceeding involving Ms. R’s four older children. I rely on same and, in the interest of brevity, won’t repeat it. [ 10 ] The proceeding involving D was commenced on June 16, 2017. It’s governed by the version of the Children and Family Services Act ( CFSA ) in place prior to the CFSA being amended in March 2017. [ 11 ] The statutory deadline to complete the proceeding was October 12, 2018.

The final disposition trial started on September 18, 2018, and the evidence was concluded on October 1, 2018. However, due to the Minister’s counsel advising she was going to be away for several days, I scheduled the parties to come back for final closing oral argument on October 25, 2018. The parties were also given the opportunity to file written argument before then which both parties did. [ 12 ] On October 22, 2018, the Minister filed a notice of motion seeking to introduce new evidence in relation to Ms.

R being charged with assault causing bodily harm as a result of an incident which allegedly occurred on October 5 th . A submission and documents were filed with the notice of motion without any supporting affidavit explaining how and when the Minister obtained the documents. The Minister requested that the motion be heard when the parties returned on October 25 th . [ 13 ] At 12:50 p.m. on October 25 th , the Minister’s counsel’s assistant emailed my judicial assistant 38 pages of additional material consisting of a second motion seeking to admit more new evidence.

This time, the motion included an affidavit from the long-term worker, CB, which provided information and police records about another incident alleged to have occurred late in the evening/early morning of October 19 th and 20 th , 2018. The incident resulted in an adult third party being criminally charged in relation to various offences where Ms. R was alleged to be a victim.

Again, the Minister requested that the motion be dealt with at the appearance scheduled for less than two hours later. [ 14 ] When the parties appeared on October 25, 2018, at 2:30 p.m., we had a discussion about how to deal with the Minister’s two motions. The Minister’s counsel advised that the 38 pages of material for the new motion had been emailed to Ms. R a couple of hours earlier and a hard copy was given to her as she was coming into court. Ms. R indicated that she hadn’t seen the email and had just received the hard copy of the materials. [ 15 ] None of the new information directly involved any children.

The Minister’s counsel submitted that it was important for me to consider it because it related to the determination of D’s best interests and raised issues of anger management and instability in Ms. R’s life which could pose a substantial risk of harm to D if he was returned to her care. She also suggested that the information raised the question of Mr. B’s continued involvement in Ms. R’s life. [ 16 ] The Minister’s counsel advised that the Minister sought to simply have the new evidence admitted but had also subpoenaed the officers who could speak to the police records if required.

She advised that the Minister wasn’t seeking to call any more witnesses but simply wished to have the documents admitted as evidence and make argument as to what flowed from them. However, if Ms. R wanted to cross-examine the officers or CB, the Minister would make them available. If admitted, the Minister also wouldn’t oppose Ms. R giving her own evidence in response to the new evidence. [ 17 ] I encouraged Ms. R to remain silent in relation to the criminal charge against her. She advised that she may be retaining criminal counsel to assist her in that matter.

I suggested that, as a self-represented litigant who had received the second motion documents a few minutes before coming into court, she should be given a reasonable opportunity to review the documents and consult with a lawyer about how she wished to respond to the Minister’s motions. The Minister’s counsel advised she had no difficulty proceeding on that basis even if it delayed completing the proceeding. In her words, it was “more important to make the right decision in D’s best interests than a quick one”. [ 18 ] I inquired from Ms.

R how long she thought she would need to review the documents and consult with a lawyer. She requested a couple of days so I scheduled a one hour appearance on November 6 th to deal with the Minister’s two motions. I asked that the Minister provide a brief in support of the requests to admit new evidence which Ms. R could review. The parties also agreed that, given the circumstances, it was in D’s best interests to exceed the statutory deadline in order to complete the trial and render my decision.

[19] When the parties came back on November 6th, Ms. R advised: • She was consenting to admitting the new evidence; and • She was not seeking to cross-examine anyone in relation to that evidence nor would she be seeking to provide any additionalevidence in response to it. [20] I therefore admitted the new evidence by consent and scheduled a further appearance on December 5, 2018, for closing oralargument. I also gave the parties the opportunity to file additional written argument on the significance of the new evidence.

Both partiessubsequently did this. [21] The parties appeared on December 5th at which time closing oral argument was completed. I advised the parties I was reserving my decision. The Minister also filed a short two page additional written submission on December 6th in relation to a couple ofpoints which arose during oral argument. Ms.

R was given the opportunity to respond to that submission but hasn’t filed anything more. 3.0 The Law [22] The purposes of the CFSA are to protect children from harm, to promote the family’s integrity and to assure children’s bestinterests: subsection 2(1). [23] In CFSA proceedings, children’s best interests are paramount. At different points in a child protection proceeding, the CFSAdirects 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’sexisting relationships; the child’s present needs; the child’s preferences if they are reasonably ascertained; future risk; and other relevantcircumstances. [24] This is an application for a final disposition order. The statutory deadline has already been exceeded. I am required toconsider the best interests of D. The only options open to me under subsection 42(1) are: (

a) Dismiss the matter and return D to the care of Ms. R; or (

b) Place D in the Minister’s permanent care and custody. 4.0 Burden of Proof [25] The Minister bears the burden of establishing on a balance of probabilities that D continues to be a child in need of protectiveservices and that a permanent care order is in his best interests: Catholic Children’s Aid Society of Metropolitan Toronto v. MC, (SCC), [1994] 2 S.C.R. 165 at paras. 37-38. 5.0 The Parties’ Positions [26] The Minister seeks permanent care and custody of D. In the Notice of Child Protection Application filed on June 19, 2017, theMinister alleged that D was a child in need of protective services under subsections 22(2)(b), (

g) and (

k) of the CFSA. The Ministerclaims that D continues to be in need of protective services. [27] The three main areas of current concern by the Minister are:

• Domestic violence; • Anger management issues; and • Instability and lack of a viable plan by Ms. R to prevent an ongoing substantial risk of physical and emotional harm to D. [28] Both in this proceeding, and the proceeding involving Ms. R’s four older children, the Minister also alleged concerns of unfitliving conditions and neglect. I addressed these issues in paras. 53-59 and 60-74 in my prior decision in relation to Ms. R’s four olderchildren. I found: • The Minister had failed to persuade me that the living conditions in which Ms. R housed her four older children were unfit; • Ms.

R has taken advantage of the educational opportunities given to her in areas where she had been inadequately parenting herolder children; and • With the assistance of services, she has gained insight into same such that there no longer remains a substantial risk of harm tothose children based on those concerns if they were returned to her care. [29] During closing oral argument on December 5th, the Minister’s counsel confirmed that the Minister was no longer alleging thatunfit living conditions or neglect were ongoing concerns. This was an appropriate acknowledgement based on the evidence.

The accessworkers and family skills worker who have been working with Ms. R over the last several months have not raised any such currentconcerns. [30] Ms. R disputes the remaining concerns of the Minister and asks that D be returned to her care. Essentially, she says that losingher four children has been a wake up call for her and that, over the last several months, she has made significant progress in addressingthe child protection concerns.

She says that D wouldn’t be at a substantial risk of harm if returned to her care. 6.0 Substantial Risk [31] “Substantial risk” is a real chance of danger that is apparent on the evidence: subsection 22(1) of the Children and FamilyServices Act. It is the real chance of physical or emotional harm or neglect that must be proved to the civil balance of probabilitiesstandard. That future physical or emotional harm or neglect will actually occur need not be established on a balance of probabilities: MJBv. Family and Children Services of Kings County, 2008 NSCA 64 at paragraph 77, adopting B.S. v.

British Columbia (Director of Child, Family and Community Services), (1998), (BC CA), 160 D.L.R. (4th) 264, at paragraphs 26 to 30. [32] If the Minister doesn’t establish that D continues to be in need of protective services, then he must be returned to Ms. R. If theMinister establishes that he continues to be in need of protective services, I must consider his best interests, as between being placed inthe Minister’s permanent care and custody or being returned to Ms. R: Catholic Children’s Aid Society of Metropolitan Toronto v.

M.C, (SCC), [1994] 2 S.C.R. 165 at paras. 37-38; s. 42(1) of the CFSA. 7.0 The Minister’s Current Concerns Concern #1 - Domestic Violence [33] In my prior decision, I concluded that Ms. R was the victim of repeated incidents of domestic violence perpetrated by Mr. Bwhich culminated in a physical assault on June 24, 2016, leading to his arrest.

[ 34 ] Sadly, Ms. R’s four older children witnessed some of the domestic violence and were harmed by what they saw. While I noted that there’s a difference between being treated poorly by a partner and being a “poor parent”, I emphasized that section 22(2) (

i) of the CFSA requires that parents, whose children have been harmed by repeated exposure to domestic violence, to obtain services or treatment to remedy or alleviate the substantial risk of physical and emotional harm created by that exposure. [ 35 ] As I also noted in my prior decision, criticizing Ms. R for remaining in an abusive relationship with Mr. B isn’t warranted. She’s a victim. Intimate partner/domestic violence is complex and often involves power dynamics which often don’t make it easy for the victim to simply leave. Breaking the cycle of violence is easier said than done.

However, when viewed from a best interests and child- focussed lens, I found that returning them to Ms. R’s care would place them in a substantial risk of harm and not be in their best interests because: • Her four oldest children, particularly, S and C, had been profoundly negatively impacted by being exposed to the domestic violence while living with Ms. R and Mr. B. They had stabilized in foster care and shown progress in getting past their unfortunate history. They were, however, exhibiting signs of being anxious at the thought of being returned to Ms. R’s care.

They had issues with trusting her and expressed concern about whether she would be able to protect them; • Ms. R’s therapy with Jacqueline Barkley, the counsellor retained by the Minister to help her address the concerns about domestic violence, ended in August 2017. Ms. Barkley indicated that counselling with Ms. R was unable to progress because Ms. R had become entrenched in her views, was no longer open to suggestions in counselling, lacked insight into how domestic violence negatively impacted on her children and refused to accept even partial responsibility for her circumstances; • While Ms.

R had applied through Victim Services for funding for a new therapist, she only started with the new therapist in February 2018. This was after the statutory deadline for the proceeding had passed. That counselling was only in its initial stages; • Ms. R hadn’t meaningfully addressed the concerns of repeated exposure to domestic violence by the time of the trial. She acknowledged that she still has much work to do and needed help to address the issues of past trauma and abuse she experienced which had negatively impacted on the children; and • The four oldest children needed stability and certainty which Ms.

R simply couldn’t provide. Given that she had only recently recommenced counselling to help her gain insight into and address the impact of domestic violence, I had no comfort that she could safely protect her older four children from the concerns about domestic violence and help them move past their unfortunate experiences with same. Their treating professionals testified that they would likely destabilize if returned to Ms. R’s care given the lack of progress she made in addressing the concerns about domestic violence. [ 36 ] While I granted the Minister’s request for permanent care of Ms.

R’s four older children largely because of my concerns about domestic violence, I also stated: Ms. R presented as an articulate and intelligent woman. Her efforts with Mr. McMullin demonstrated that she’s able to take advantage of educational opportunities to improve her parenting. I am therefore hopeful that, with additional time, Ms. R can gain more insight into the negative impact that exposure to domestic violence has on children, and how it is essential that parents protect children from such exposure. Unfortunately, however, I don’t have the luxury of giving her that additional time.

The statutory timelines have already been exceeded. Simply put, time has run out. Thus, I find that the Minister has met the burden of establishing that returning the children to Ms. R’s care now would place them at a substantial risk of harm due to the ongoing concerns involving domestic violence and that doing so is not in their best interests (para. 106) [ 37 ] The fact that Ms. R is articulate and intelligent was vividly reinforced to me during this trial. Indeed, unlike her first trial where she was represented by a lawyer, she represented herself in this trial.

She was well-prepared when presenting her own evidence and cross-examining the Minister’s witnesses. She ably articulated her positions both orally and in writing. [ 38 ] Of course, Ms. R’s level of intelligence isn’t what’s at issue here. What’s at issue is her ability to appropriately parent D, and protect him from a substantial risk of harm if returned to her care. In this regard, as hoped for in my prior decision, I am satisfied that Ms. R has taken advantage of the additional time given to her to appropriately address and alleviate the concerns relating to domestic violence. I rely on the following:

1. Pamela Rubin’s Evidence [ 39 ] After counselling with the Agency appointed counsellor, Ms. Barkley ended, Ms. R took steps to secure her own private counsellor, Pamela Rubin, using funding she secured through Victim Services. She started seeing Ms. Rubin in February 2018 and was continuing to see her at the time of the trial. She plans to continue seeing Ms. Rubin after this proceeding is over. [ 40 ] Ms. Rubin is a Canadian Certified Counsellor.

She was qualified as a Canadian Certified Counsellor with expertise in gender violence trauma which includes providing counselling services to victims of intimate partner violence (a subset of domestic violence) and sexual violence. [ 41 ] Ms. Rubin currently provides counselling services through her own private practice and also through the Antigonish Women’s Resource Centre and Sexual Assault Services Association. Her counselling services focus on a number of areas including assisting survivors of gendered violence and anger management. Ms.

Rubin’s experience includes: • Working on issues of gender violence from the victims’ perspective since 1993; • Specializing in assisting clients, primarily women, recover from gendered violence trauma since 2010; • Working with hundreds of victims of domestic violence in an individualized or group setting; and • Working with several clients involved in child protection cases and, on two occasions, being directly retained by child protection agencies as an independent contractor to provide trauma therapy for clients. In those cases, she reported directly to the agency. [ 42 ] Ms.

Rubin testified that she worked primarily with Ms. R on issues of domestic violence and anger management. According to Ms. Rubin, when Ms. R first saw her, Ms. R unequivocally stated that she wasn’t interested in being abused ever again and was interested in identifying the signs of potential abuse. She said Ms. R wanted to talk about her “hopes and dreams”, how to be the best parent she could be, and the stressors in her life.

Her hopes and dreams included wanting to continue her education, obtain meaningful employment, being the best parent she could be, and suffering less from the impact of the violence she experienced. [ 43 ] Ms. Rubin said Ms. R would bring a notebook to her sessions and do independent follow up on topics they discussed outside of their sessions. They identified local resources and information on websites about abuse. [ 44 ] When I asked Ms. Rubin about her therapeutic work with Ms. R, and her view on Ms. R’s level of engagement and progress, she stated: Q. All right.

So, is it fair to say, at the least the impression I had, Ms. Rubin, is that the work you primarily did with [Ms. R] related to the issues of domestic violence and anger management? Is that fair? A. Yes. Q. Okay. And what can you say about her -- the level of engagement she demonstrated to you when you were working with her on those issues? A. I would say [Ms. R] is a highly-engaged client. She was very eager for knowledge, was note-taking, was accomplishing the tasks that I suggested between sessions, was incorporating practices that she would then be able to demonstrate to me in a session.

I would call her highly-engaged. Q. And what’s your -- we’ve heard some -- what’s your view about the level of progress she made in terms of addressing those issues, from your perspective? A. I would say that her progress was good. I – people, during recovery from trauma, can vary. I wouldn’t say that there was a norm against which to judge speed of progress. And, of course, it varies in terms of conditions. And if there are ongoing stressors, that hinders people’s recovery and healing from post-traumatic stresses. Q. Okay.

A. So, [Ms. R] continues to have significant stressors in her life, poverty, the ongoing Court proceedings, that kept her in a -- a bit of a holding pattern of how we spend a lot of time on coping. Now, that’s not to say that the coping technique –-- they still support long-term healing. But for [Ms. R], or for any trauma survivor, when there are very significant stressors like the ones I’ve mentioned, it slows the deeper healing. Q. Okay. A. But nevertheless, I consider within those conditions that [Ms. R] was making good progress. [ 45 ] Similarly, in Ms. Rubin’s report of June 12, 2018, she stated: “[Ms.

R] has accomplished psychoeducation and gains knowledge and skills awareness through completing suggested readings, participating in discussion, and reviewing online resources with respect to: - recognizing domestic violence trauma and healing in its aftermath - anger management - cultural competence as a parent of children of African…heritage - mindfulness practices” [ 46 ] When asked about Ms. R’s ability to apply what she had learned about the impact of domestic violence to future relationships, Ms. Rubin testified: Q. All right.

Can you turn to page 5 and this is an entry from June 1st, 2018 and at the top, you said: “Discussed what warning signs she might look for in future relationships that are red flags for potential abuse. A...” I think that’s [AR]. “...[Ms. R] named all of them including jealousy, controlling behaviours, losing temper, name-calling, yelling, isolating from friends and family, put-downs, et cetera.” So, are those the examples of red flags that you’re talking about? A. Yes. Q. Okay. I’m going to take you to your report or your letter of June 12th, 2018 found on page 8. A. Yes. Q.

And I’m just going to take you to some references and ask you to elaborate upon what you mean, okay? A. Yes. Q. So, in I think the fifth paragraph down, half-way through, it says: “...[Ms. R] does not minimize the risk, impacts and dangers of domestic violence in her discussion of these issues. Her understanding of the gravity of domestic violence and its impacts is a motivating factor for her in attending these trauma-focus sessions with me under her award.” What do you mean by that? Can you elaborate on what you’re saying there? A. In her discussions with me, [Ms.

R], has described the impact on her every day would say were typical, such as [heightened sense] of arousal, heightened reactivity, increased irritability, hyper-vision. She was well-aware and distressed by these symptoms. Q. Okay. A. And I would say that she saw violence and abuse as something which would not permit her to live a healthy life or [pursue] her goals in life. Q. Okay. And the next paragraph down, you say: “[Ms.

R] has accomplished psycho-education and gained knowledge and skills awareness through completed suggested reading, participation and discussion and reviewing online resources with respect to...” And there’s -- the rest I’m paraphrasing, but recognizing domestic violence, trauma, healing as aftermath, anger management and some other things as well. What do you mean by “she has accomplished psycho-education and gained knowledge” of those issues? A. She completed the tasks that I recommended, some of which we would conduct in my office and some that she would complete in between sessions.

We’d have follow-up discussion and review.

Q. Okay. And if you turn to page 9 and --- A. Yes. Q. --- the first full paragraph, it says: “As a result of psycho-education completed to-date, [Ms. R] reflects on the impacts of trauma on her parenting and feels less-stigmatized in acceptance of her responsibility for taking control of her parenting. She has no difficulty applying knowledge gains in practical parenting scenarios, which have been discussed extensively.” Can you tell me what you mean there? A. Yes.

In terms of being stigmatized, sometimes that people who are suffering the aftermath of a trauma, as I say, will experience (inaudible) on the activity…and a quick feeling of overwhelm. So, as [Ms. R] began to understand that her experience of some of these things were not inherent character flaws but were outcomes, typical outcomes of trauma, she felt less-stigmatized as a bad person for experiencing these symptoms. And it’s -- when we’re left -- when we’re feeling less-stigmatized, it’s easier for us to engage --- Q. Okay. A. --- and work with those symptoms.

So, though we use different scenarios as a way to explore how one would apply these skills she was really learning such as mindfulness and grounding, such as positive self-talks, such as progressive muscle relaxation, and everything else we support. Q. Okay. A. So, we would discuss scenarios and then I invited [Ms. R] to explain how she would use the skills in those scenarios. [46] Ms. Rubin also testified that she did not sense any minimization by Ms. R on the impact of domestic violence during her sessions. She said that she was willing to continue to provide counselling to Ms. R until the funding through Ms.

R’s counselling award was exhausted. She estimated that Ms. R could have approximately thirteen more sessions with her. [ 47 ] In response to questioning from the Minister’s counsel, Ms. Rubin acknowledged that the information she had when providing counselling services came solely from Ms. R and not from the Agency. In the closing submissions filed on October 19, 2018, the Minister appears to suggest that the weight of Ms. Rubin’s evidence should be discounted largely because: • Ms. Rubin wasn’t provided with the information which the Agency had about Ms. R; • Ms.

Rubin took no steps to verify any of the information provided to her by Ms. R or to inform herself about the issues involved in the child protection proceeding; • Ms. Rubin didn’t provide the Agency with information about the work she was doing with Ms. R until after being served with an order for production; • Ms. R didn’t discuss with Ms. Rubin the specific details of the abuse she suffered from Mr. B; and • Ms. Rubin only provided “limited counselling” for Ms. R which hasn’t addressed the issues of domestic violence and her ongoing involvement in a relationship “of some kind” with Mr.

B. [ 48 ] I have considered these points when weighing Ms. Rubin’s evidence. I don’t conclude they justify largely discounting her evidence. [ 49 ] First, to suggest that Ms. Rubin wasn’t informed about the issues in the child protection proceeding fails to recognize that Ms. R self-identified to Ms. Rubin that she wanted to work on the issues of domestic violence, anger management, unfit living conditions and neglect (Exhibit 14, Page 3). These were all key child protection concerns raised by the Minister in the two proceedings involving Ms. R. As noted, Ms.

Rubin clearly spent significant time in her sessions working with Ms. R on the issues of domestic violence and anger management.

[ 50 ] Second, as the judge tasked with viewing this proceeding through a best interests/child-focused lens, it’s more important to me that Ms. R has taken meaningful steps to appropriately address the child protection concerns than whether the Agency was kept contemporaneously apprised with a detailed accounting of her progress with respect to same. [ 51 ] Third, when I consider the email exchanges between Ms. Rubin and the long-term worker, CB, and their evidence at trial, I don’t conclude that Ms. Rubin flatly refused to provide the Agency with information. To the contrary, Ms.

Rubin indicated she was concerned about controlling the release of information in order to effectively maintain the confidentiality and effectiveness of the therapeutic relationship but did offer to communicate with CB through email. For example, in an email exchange Ms. Rubin had with CB on July 18, 2018, Ms. Rubin stated at 12:19 a.m.: “Could you please let me know the purpose of your request for contact in person or by phone, that cannot be met by email correspondence?

It is my practice to correspond in writing with child welfare employees so that all exchanges are fully documented.” [ 52 ] CB’s response later that day outlined the information that the Agency was seeking from Ms. Rubin and concluded with: “I would have expected that in furtherance of your work with [Ms. R] that you would have wanted to have a discussion about these matters, however I take from your email that you do not.” [Exhibit 25] [ 53 ] Ms. Rubin testified that she found CB’s response “odd” and saw it as a judgment by CB on the fact that Ms. Rubin preferred a written report to a telephone call.

According to Ms. Rubin, she had never been “pushed” like that in the past by any other professional she had dealt with including child protection professionals. She said she had offered to communicate in writing but was open to hearing why verbal communication was necessary. However, it appeared to her that CB simply decided to not have any further exchange. [ 54 ] Based on the emails, I see no basis to be critical of Ms. Rubin failing to provide information to the Agency. Rather, Ms. Rubin preferred to have a dialogue in writing so that the exchanges were fully documented.

It appears to me that CB simply jumped to the conclusion that, based on this preference, Ms. Rubin was unwilling to provide any information to the Agency and then decided not to follow up any further. [ 55 ] I find this conclusion puzzling because CB testified that she had Ms. R sign a written consent allowing the Agency to obtain any information from Ms. Rubin. Indeed, the Agency Recordings suggest that Ms. R signed the consent several months earlier in February 2018 (Exhibit 29, Page 2, Last Paragraph). [ 56 ] Despite knowing the consent existed, CB didn’t bring it to Ms. Rubin’s attention.

When I asked why she didn’t, CB replied that she doesn’t know if she was able to get Ms. Rubin’s fax number. She suggested that while her usual practice would be to fax the consent to a client’s therapist, she wasn’t given the opportunity in this case because she didn’t have Ms. Rubin’s fax number. This seems like a questionable justification given that CB had been in communication with Ms. Rubin by email, could have easily informed her of the existence of the written consent, and could have asked for a fax number or possibly even emailed it to her. Furthermore, if the Minister wished to provide Ms.

Rubin with information about Ms. R, one would think the consent may have allowed for this to happen especially since CB’s email of July 18, 2018, indicated that CB wanted to “have a discussion” with Ms. Rubin about Ms. R’s situation. [ 57 ] While I was provided with hundreds of pages of material by the Minister including the detailed day by day Agency recordings, I wasn’t provided with the written consent. I therefore asked CB and Minister’s counsel if it could be obtained.

It was never provided to me although I understand that unsuccessful attempts were made to find it. [ 58 ] Fourth, if the Minister felt that obtaining Ms. Rubin’s records was necessary in order to do a proper assessment of whether D would be at a risk of harm if returned to Ms. R’s care, an order for production could have easily been sought any time after Ms. R started seeing Ms. Rubin in February 2018. The Minister eventually sought production of those records on July 5, 2018, which Ms. R consented to that same day. Thus, the Minister was eventually able to obtain Ms.

Rubin’s records through the order for production (Exhibit 14). Those records, as well as Ms. Rubin’s evidence, haven’t changed the Minister’s position that permanent care of D is necessary.

[ 59 ] Fifth, the Minister hasn’t provided me with any compelling rationale as to why it would be incumbent on Ms. R to discuss the specific, painful and, at times, graphic details of the domestic violence she suffered from Mr. B with Ms. Rubin in therapy. I’m therefore not willing to be critical of Ms. R’s failure to do so as a means of discounting Ms. Rubin’s evidence. [ 60 ] Again, Ms. R is a survivor of domestic violence. She is healing from that experience.

In my view, asking a victim to re-live the specific and traumatic details of the past in counselling could potentially cause more trauma to the parent and may not be necessary to address the child protection concerns. [ 61 ] Ms. Rubin, who testified she has been previously retained by child protection agencies in the past to help clients deal with trauma, appeared to make this very point. She testified she didn’t see her therapeutic role to be an investigator into the past but was focussed on helping Ms. R move forward with her healing from the trauma she suffered. Thus, Ms. Rubin said it wasn’t necessary for Ms.

R to talk about all the details of the aftermath of her abuse. [ 62 ] Furthermore, while Ms. Rubin may not have known the specific details of the domestic violence Ms. R suffered from Mr. B, she did say she was made aware by Ms. R of the general nature of her history and experience with domestic violence although Mr. B wasn’t specifically mentioned by name. Specifically, in response to questions from the Minister’s counsel, Ms. Rubin said: • Ms. R did indicate that her history of being a victim of domestic violence had a profound impact on her and hurt her; • Ms.

Rubin got the impression that there was a pattern of abuse suffered by Ms. R from her former partner; • Ms. Rubin’s focus wasn’t to investigate the details of the abuse but to work with victims on the aftermath. If survivors don’t want to talk, it isn’t necessary; and • Ms. R indicated that she had no interest in being in any relationship with her former partner and wanted to be free from any abuse. [ 63 ] Similarly, in responding to questions from me, Ms. Rubin testified: Q. All right. Now, in response to questions from the Minister’s counsel, I think you described [Ms.

R] as identifying she was a survivor of intimate partner violence from a gentleman she had been in a relationship with, right? A. Yes. Q. And when the Minister’s counsel asked you about your impression about the intensity or frequency of that intimate partner violence, I think you said you had the impression it was intense and part of a pattern, but that your focus really isn’t to do an investigation, you were there to help survivors deal with the aftermath. Do I have that right? A. Yes. Q. And I think you said that [Ms. R] acknowledged that the intimate partner violence had a profound impact on her.

Am I correct on that? A. Yes. [ 64 ] In conclusion, I found Ms. Rubin’s evidence helpful when considering the progress Ms. R has made in therapy over the last few months in addressing the child protection concerns arising from issues of domestic violence. I disagree with the Minister’s description in the post-trial written submissions filed on October 19, 2018, that Ms. Rubin only provided “limited counseling” to Ms. R which hasn’t addressed the issues of domestic violence. 2. Ms. R’s evidence [ 65 ] Even if I didn’t find Ms. Rubin’s evidence helpful or persuasive, perhaps the most impactful evidence about Ms.

R’s progress in addressing the concerns about domestic violence came directly from Ms. R.

[ 66 ] Indeed, it’s one thing for a parent to engage in services with a professional to address child protection issues and have that professional testify as to the parent’s level of insight and progress. It’s quite another thing to hear that insight directly from the parent. Indeed, simple participation in services doesn’t necessarily result into better parenting. [ 67 ] Here, Ms. R’s evidence demonstrates that she has gained considerable insight about the concerns of domestic violence since the last trial. For example, her evidence in response to questions posed by me included the following: Q. Okay.

What do you understand domestic violence to be? Can you give me your own view of what that is? A. Any type of emotional abuse. I never knew before that, you know, moving somebody away from their friends and family was any type of abuse. Not going to school, not having friends and things like that, I never knew it was a form of emotional abuse. And the yelling and the screaming around the kids. It gave them a huge impact because of the things that they’ve been saying happened to them and that they feel have happened to them.

I -- I guess I always knew that it -- this -- there -- this was a source of domestic violence. I just didn’t know what exactly domestic violence was at the time. I thought way back it was actually just beating the crap out of people, name-calling. Out partying every night and not having any relationship with the family is also a big part of domestic violence, emotionally. Belittling people. I was belittled a lot, always told that I was never able to do certain things.

And those were all forms of abuse and I never ever known that and I never ever knew that yelling and screaming -- that the kids actually hear and I always thought that if they were sleeping, it was -- it didn’t mean anything to them because they didn’t see it. But I realize now just hearing -- hearing things being said out loud, it causes an impact on children. Q. And say the last part. A. It causes an impact on children. Q. And what do you understand the impact to be? A. Traumatic. They are obviously a lot -- they obviously hate [Mr. B], things I never ever knew that they feared.

I never ever know my daughter never trusted in me or felt safe with me. I guess at that time, they felt that I couldn’t protect them and I couldn’t at that time. And now I realize that, you know, I can’t allow things like that to happen, and I have to stop and be alert of the warning signs in the future. Q. So, what do you say are the warning signs in the future? What do you mean by that? A. Like you can’t wear certain clothing. You can’t go certain places. Q. So, somebody telling you that? A. Yeah, like the controllingness, the isolation, no friends, no family around. I never realized at the time.

I always thought we moved here for good intentions but in learning about domestic violence, I believe that he moved us here to isolate us from family, so he could gain more control over -- over us and I didn’t see it at the time. Q. Right. A. And those are the signs that -- those are the little signs. [ 68 ] Ms. R was also questioned about a passage in her affidavit in which she referred to the impact of domestic violence on children. Again, her evidence was insightful: Q. Yeah. The last page of your affidavit is Exhibit 20. And the last page, if I could take you to that. A. Yeah. Q.

You talked about your work with Ms. Rubin and it says: “We talk about...” Do you see this fourth line from the top? “We talk about domestic violence and the impact that it has caused me and my children. We brain storm ways to be alert of this in future. Learn to self-feel and control and self-care for myself.” So, can you tell me what you mean there about the impact it’s had on your children and what you’re talking about there? A. Well, my four children are gone due to the fact. The impact it’s caused on me as a person was I was never -- I have never been myself in the past six years.

So, basically, I bottled myself up for the past six years in a bottle. Tried to be somebody else, I guess, or who somebody wanted me to be at that time. The impact that it’s caused on my children, [S] and [C], they are fearful of so many different things that I’ve never even heard of before of my children. They felt they weren’t protected, they weren’t safe. And they felt I couldn’t give them that.

Q. Sorry, what was the last part? A. I couldn’t give them that or they felt that I could not give them that. And when children do not feel a sense of protection and stability, I guess that’s -- the trust is gone at that point and I never really ever knew that. And being isolated for six years, I guess I failed to neglect some of the parenting like stability and structure and protection for my children.

And now I realize that, you know, this is something that children need and that [D] can’t have that. [ 69 ] When asked to respond to CB’s testimony that the Agency believes that she has failed to make any progress with respect to the concern of domestic violence. Ms. R responded as follows: Q. And you heard -- and again, I’m again I’m going by my memory here -- but you heard [CB] take the stand and say something to the effect that the agency doesn’t feel that you’ve made progress on the issues of domestic violence and the issues over those since 2016. Do you recall her giving that evidence? A. Yes. Q.

So, what is your response as to what -- how you feel you have or haven’t made progress on the issue, domestic violence? A. I’ve made progress to me, I believe, because when this first started, like I said, I didn’t even know what domestic violence was. I thought this was actually a physical fight. I never knew that there was different or types of abuse, emotionally, mentally, physically. Before, I guess, I did minimize a lot of the things that the agency was throwing at me because I was defended a lot, I find, of the whole situation because I didn’t see it the way they did.

After it’s been this long and I’ve been outside of the box, I’ve been able to see that that’s not my life and the things that, you know, it’s done to my family and myself, as a person. I just realize that, you know, I find that is progress. And before, I never ever known what any of it was. Now, I mean, I can’t sit here and say I know every single thing because I’m still learning about it. But I believe that I have put significant time into learning about it and I have put significant time into parenting classes and learning about the neglect that domestic violence can cause a parent on their children.

And I mean, I’m still in a healing process, so I’m not sure why -- I’m not sure why they -- they continue to keep saying that but it’s just not only that they continue to say I don’t progress at anything, so --- Q. Okay. And how many more sessions does your funding cover with Ms. Rubin? A. I believe she had said thirteen the other day. [ 70 ] In light of the evidence from Ms. Rubin and Ms. R, I disagree with the Minister’s assertion that Ms. R has failed to show any progress in dealing with the issue of domestic violence. It’s also hard to understand why the Agency would show no meaningful recognition of Ms.

R’s efforts even if it ultimately maintained that placing D in the Minister’s permanent care is in his best interests. [ 71 ] Perhaps some of the Agency’s intransigence is grounded in a belief that Ms. R is still in a relationship with Mr. B even after my prior decision was released last April which placed her four older children in permanent care. In the Minister’s closing submissions, reliance is placed on several incidents which occurred on May 19, 2018, July 1, 2018, July 4, 2018, July 10, 2018, August 17, 2018, August 30, 2018 and October 19/20, 2018, which the Minister suggests indicate that Mr.

B is still present in Ms. R’s life. [ 72 ] I have carefully considered these incidents. Some didn’t involve Ms. R and Mr. B being seen together but, rather, being seen in the same area. This isn’t surprising given that they live in the same neighborhood. [ 73 ] On other occasions, Ms. R acknowledged that she did have contact with Mr. B.

For example, she had contact with him on July 1, 2018, and July 10, 2018, which she says were unplanned encounters (on July 1, 2018, he showed up unexpectedly when she was visiting his aunt and, on July 10, 2018, she bumped into him in front of the Subway restaurant in their neighborhood). She also saw him on August 30, 2018, when, as pre-arranged with Mr. B’s father, she agreed to meet Mr. B to give him some old paperwork/mail she had with his name on it which Mr. B required in order to collect an inheritance. Furthermore, she also testified that since the last trial, she has encountered Mr.

B on a few other occasions in the neighborhood which were not specifically referenced by the Minister. She said that, during those occasions, she didn’t communicate with him. She also said that she hopes to move away from that neighborhood so that Mr. B won’t know where she lives but is currently unable to do so based on her limited financial means. [ 74 ] The Minister has failed to persuade me that Ms. R is currently in a relationship with Mr. B such that if D was returned to her care, he would be in need of protective services or at a substantial risk of harm. At best, the evidence that Ms. R and Mr.

B remain in a relationship is quite circumstantial. Furthermore, in addition to the evidence relied upon by the Minister, I note the following: • Ms. R pointed out that, unlike in the prior proceeding where the Agency went to considerable lengths to speak to her former landlord and superintendent about Mr. B’s presence in her former apartment, and called them as witnesses, the Agency made no attempts

to speak to her current landlord or anyone in her building as to whether Mr. B was around. Ms. R testified that she has told the landlord that she doesn’t want Mr. B around and that, if he show up, she wants the landlord to ask him to leave. • Ms. R moved into her new apartment around May 1, 2018. Since the middle of June 2018, access workers have been attending access visits between Ms. R and D in that apartment. The visits occur twice per week. During those dozens of visits, the Minister hasn’t provided persuasive evidence that suggests that Mr. B was present in Ms.

R’s life although an access worker did suggest she has seen an unidentified pair of “men’s sneakers” in the apartment although she didn’t ask to whom they belonged. • Despite having the ability to make unannounced or planned home visits, CB has only been inside Ms. R’s apartment on one occasion since Ms. R moved into it in May 2018. This was in the middle of June as part of an arranged visit. While she attended Ms. R’s building on two other occasions, she didn’t go inside the apartment. One time, Ms. R wasn’t home and, the other time, Ms. R had company so CB agreed to come back on another date.

CB also hasn’t attended a single access visit between Ms. R and D in her apartment. When asked if there was a reason about why she has only been to Ms. R’s apartment on one occasion, CB said there was “no particular reason”. When asked why she hasn’t attended any access visits in the apartment, CB indicated that she hadn’t had the opportunity yet but would be doing so in the future. I find CB’s responses questionable given that at the first trial, she expressed concern that Ms. R hadn’t secured stable housing so that she and other agency staff could observe Ms. R parenting in a home setting.

Thus, I would think that viewing Ms. R’s living arrangements and going to access visits would be important to CB both to see how Ms. R parented D, and also to see if there were any signs of Mr. B being present. This is particularly so given that CB was a key part of the team that made the decision to pursue the plan for permanent care and custody largely due to a belief that Ms. R and Mr. B were still in a relationship. • During cross-examination, Minister’s counsel questioned Ms. R about pictures found on Mr. B’s Facebook page. She then made a request of Ms.

R to open up her Facebook page on the stand using her phone so that it could be determined whether she had been messaging Mr. B. Ms. R agreed. She and the Minister’s counsel then stood together while she opened up her Facebook account in court using her phone. After viewing it together, they agreed that there were no messages or postings on Ms. R’s Facebook which related to Mr. B. The Minister’s counsel then requested that Ms. R pull up her text messages. Ms. R again agreed but indicated that she only had text messages going back a day because she didn’t save her text messages beyond then.

Again, both agreed that Ms. R’s texts showed no text communication with Mr. B. [ 75 ] Plainly, the Agency doesn’t consider Ms. R to be honest. Indeed, it has described her as being “dishonest” and suggests she is unworthy of belief. For example, in her recordings of April 27, 2018 (three days after I rendered my prior decision), CB recommended to her supervisors that D be placed in permanent care and stated: “I said to both supervisors that Ms. R appears to have no insight into the agency concerns and with her being with Mr.

B despite their history, it shows that she is continuing to be dishonest.” [ 76 ] Similarly, CB was asked during cross-examination by Ms. R as to why CB feels she is always being dishonest, CB testified that Ms. R had a tendency to be dishonest with her over the last 2.5 years and has “never owned anything”. She reiterated her concerns about Ms. R’s honesty later in her evidence as follows: A.…but your history, I will state, has not been honest…but your history with the [Agency] [Ms.

R] and I and the work that we have done is that you have been consistently dishonest… …What I am saying is that you have a history of being dishonest…with the agency, a 100 percent.

[ 77 ] Likewise, in the Minster’s closing submission filed on October 19, 2018, the Minister makes submissions on the issue of credibility and submits that “the testimony and evidence of [Ms. R] is less than credible”. [ 78 ] I have considered the issue of Ms. R’s credibility applying the guidance from cases such as Baker-Warren v. Denault , 2009 NSSC 59 and Nova Scotia (Minister of Community Services) v. SLW, 2015 NSFC 1 . [ 79 ] I agree with the Minister that Ms. R hasn’t always been forthright with the Agency on the state of her relationship with Mr. B.

I also agree that, like many parents who have had their children taken away from their care, Ms. R has been somewhat antagonistic toward the Agency and hasn’t always been open with CB. This doesn’t mean, however, that Ms. R was “less than credible” when she testified in this proceeding. [ 80 ] Furthermore, my paramount consideration isn’t whether Ms. R has always been completely honest with the Agency. Rather, it’s D’s best interests and whether the Minister has established he continues to be in need of protective services.

Indeed, there may be parents who appear before this court who have been less than honest about things occurring in their lives. Those parents aren’t deprived permanently of their children simply because they have been less than honest about those events. [ 81 ] I also urge the Agency to be cautious about simplistically painting Ms. R’s credibility with a broad brush and suggesting that she’s a person unworthy of being believed because she may not have always been forthright in the past about the state of her relationship with Mr. B. [ 82 ] Again, Ms. R was a victim of repeated domestic violence.

As I stated earlier, it’s not always easy for a victim to simply break free from an abusive partner given the power dynamics which are involved. Furthermore, sometimes victims may be hesitant to openly share information about the state of their abusive relationship to third parties particularly when those third parties have been involved in taking their children into care due to concerns about domestic violence.

In such cases, I would hope that victims wouldn’t be unfairly labelled as being fundamentally dishonest simply because they minimized the state of their relationship with their abusers. [ 83 ] As noted by Ms. Rubin, sometimes victims of domestic violence may feel “stigmatized” in the aftermath of their trauma and need to learn that they do not have “inherent character flaws”. Sometimes, it takes considerable time and courage for victims to leave abusive relationships for their benefit and, more importantly, for their children’s benefit.

When they make that decision, I would hope that the Agency would embrace their decision and help them move forward, as opposed to holding the past against them as a basis to disbelieve that they may have finally taken steps to break the cycle of violence. Indeed, as everyone acknowledged, despite my decision to place the four older children in permanent care, there was still time for Ms. R to address the child protection concerns in relation to D so that what would happened to him wasn’t a “fait accompli”. [ 84 ] When asked about her perception of the Agency’s responses to Ms. R, Ms.

Rubin testified that she became concerned that there was an inappropriate and single-minded focus by the Agency on permanent care and she also had concerns that the Agency wasn’t finding practical ways to support Ms. R but was instead creating barriers for her. [ 85 ] I appreciate that Ms. Rubin’s perspective largely came from information relayed to her from Ms. R. I also don’t believe that the Agency was deliberately setting up barriers for Ms. R to fail. I can also understand why CB may have some difficulty believing Ms. R. based on their dealings over the last two and a half years.

Indeed, I accept that CB made considerable efforts before the first trial to arrange for services for Ms. R to attempt to address the concerns about domestic violence. I commend CB for all those efforts. What I’m not prepared to do, however, is conclude, as the Minister has, that Ms. R was “less than credible” when giving her evidence at trial and is a person unworthy of belief largely because she may not have been forthright to the Agency in the past about the state of her relationship with Mr. B. [ 86 ] To the contrary, I conclude that Ms.

R was generally truthful at this trial when giving evidence which goes to the heart of the issue of whether D would be in need of protective services if returned to her care. I accept that she wants to live a life free of Mr. B. I conclude this despite the fact that, like the Minister, I also had serious concerns about Mr. B’s involvement in her life and how she intended to protect D from being exposed to a substantial risk of harm should Mr. B show up again. I therefore, like Minister’s counsel, asked Ms. R about this. [ 87 ] Again, Ms.

R gave thoughtful answers which show that not only has she gained insight about how domestic violence negatively impacts on children, but also show that she has made the decision to break the cycle of violence with Mr. B. Her evidence included the following: Q. Okay. And since the -- we’ve heard some evidence about the contact you’ve had with him. Since the last trial, which ended in April 9th of --- A. Yeah. Q. --- can you tell me how many times you have seen [Mr. B]? A. It was that one time that [CB] seen us in the Subway parking lot.

And just the other day, when the -- that incident had taken place on the 30th. Now, I do see [Mr. B] around the area. I mean, I see him walking sometimes. I don’t contact with him but he -- I’ve seen him, you know, within since March ‘til now, maybe five times throughout the area. Q. And you also saw him on the Canada Day incident?

A. Oh, yes, Canada Day incident, yes. Q. So, tell me about the -- you say you see him in the neighbourhood -- about the nature of communication you have with [Mr. B]. If you see him walking, tell me about what happens. A. None at all. The first day that I actually had spoke to him was the day that [CB] had seen us in the Subway parking lot. And the only reason why there was any acknowledgement at that point was because of the fact that his father had contacted me about the mail, with pieces of -- his social insurance number might’ve been printed on any mail I had.

That was the only time I spoke to him and it was because it was in the public -- a public place and I had already went over safety plans with my support worker… And in the past, already about if I had ever seen [Mr. B] in the public or anything like that, or if I ever seen him, it most likely would be better in the public setting where there was tons of people around the surrounding area. And at that day, I did see a police officer parked over in the parking lot there, so I didn’t -- wasn’t fearing for my life at that moment. There was -- there was a lot of people around and the police were right there. Q.

I understand your position to be…that you have no intention of resuming a relationship with [Mr. B]. A. No. Q. And why -- why do you say that? A. One, I don’t want to be with him. I haven’t wanted to be with him for a long period of time now. I guess I just didn’t know how to ever get out of that, bad is it is to say that this had to happen for him to be out of my life. It is bad but I haven’t been wanting to be with him for a long time. And he’s controlling and he always thinks that he’s right about everything. He can’t ever see the world outside of his box. He just thinks he’s right. I -- he’s arrogant.

I just can’t stand him. Q. I understand you said that you’ve talked about seeing him in public and around the area. And if [D] was returned to your care, what role do you see [Mr. B] having in your and --- A. None. Q. Okay. He lives in the same area? A. Yeah. Q. That’s what he says. Okay? A. Yeah. Q. And you talked to me about this incident on, I think it was July the 1st where he finds out he -- you’re at his aunt’s place. A. Um-hmm. Q. And he’s like kicking the door and yelling and cursing and things like that. A. Yeah. Q. Okay. A. That was a fault on mine.

I should’ve never been at a family member or a home of his. I always thought his family wouldn’t have sided with either/or, which they hadn’t. But I never knew that an issue would happen like that and now that I know it did, that I had to take the fact where she actually had to call the police, I would never bring [D] back to any family members near him. Q. Okay. But you have an understanding that [Mr. B] knows where you live? A. Yes. Q. Okay. So, if [D] was returned to your care, you know, and he comes knocking on your – [Mr.

B] comes knocking at your door and starts kicking your door like, how do you say you can protect [D]? A. Well, I’d have to -- I would have to call police at that point. I made up safe plans with my support worker, [E], that if that were to ever happen, and [Mr. B] were to come to the door and start kicking it or anything like that, that I would immediately call police. My landlord also is aware that [Mr. B] is not allowed around near the area. So, if ever I have any problems arise or see him in the area, I just have to give my landlord a quick call and he’ll come over to the property and remove him.

There’s a lady that lives directly upstairs from me. She keeps a watch out just in case she sees anybody out and around the building. He does know where I live. Hopefully, I want to move out of that building, if [D] were to come back to my care, into a different building. So that way, [Mr. B] does not actually know where I actually live. So that way, that doesn’t have the option to ever happen. [ 88 ] Not only do Ms. R’s words demonstrate her desire to break free of Mr. B’s influence, and how she would protect D should Mr. B. show up, but her actions also demonstrate this.

For example, while the Minister relies on the incident of July 1, 2018, to speculate that Ms. R and Mr. B are still in a relationship, I took some comfort from Ms. R’s reaction to the situation that evening when assessing the likelihood of future risk of harm to D should he be returned to her care. Indeed, when Mr. B showed up to his aunt’s home that evening in an intoxicated and belligerent state demanding to speak to Ms. R, she:

• Said “no”; • Went inside the aunt’s home and shut the door; • The police were called; and • Ms. R told the police after they arrived that Mr. B had a no contact order in place with her and that she didn’t want him following her. [ 89 ] As the trial judge uniquely positioned to observe Ms. R over a period of two and a half years, I was impressed by Ms. R’s evidence and conclude that she has come far in addressing the concerns of domestic violence.

Her evidence was persuasive to me especially since much of it was unscripted and spontaneous responses to questions I posed as opposed to being “prepared evidence” contained in affidavits or elicited as responses to one’s lawyer. [ 90 ] Both Ms. R’s evidence and actions demonstrate to me that, since the last trial, she has gained considerable insight about how domestic violence has negatively impacted on her and her children. Indeed, as noted earlier, Ms. Barkley described Ms.

R in April 2017 as being: • “entrenched in unidimensional views of her situation”; • “no longer open to suggestions in counselling”; and • “excluding insight and even partial responsibility for her circumstances” (para. 83). [ 91 ] While Ms. Barkley’s description of Ms. R may have been accurate back in April 2017, it isn’t an accurate description of Ms. R in October 2018.

Not only has she gained admirable insight into the issue of domestic violence, but I am likewise satisfied that she has made considerable progress in addressing this concern such that D would not be in need of protective services or at a substantial risk of harm should he be returned to her care. Furthermore, unlike her four older children, D has no history of being exposed to domestic violence perpetrated by Mr. B. Consequently, he hasn’t had to overcome those negative effects which, as I noted in my last decision, were significant barriers to returning the other children to Ms. R’s care.

Here, D doesn’t have that unfortunate experience and I’m satisfied that Ms. R has learned to safely protect him from any future exposure to domestic violence concerns. Concern #2 - Anger Management [ 92 ] I am also satisfied that Ms. R has also satisfactorily addressed the Minister’s concerns about anger management. I rely on the following evidence. 1. Evidence of Pamela Rubin [ 93 ] Ms. Rubin said that when she initially met Ms. R, she self-identified anger management as a child protection concern that she wanted to work on. In her notes and reports (Exhibit 14), Ms.

Rubin indicates that they worked on this through: • mindfulness and grounding tools; • using techniques such as “54321” and “S.T.O.P.”; • lowering tension; • noticing early signs of anger; • reinforcing wellness practices; • completing planning for preventing overwhelm by traumatic stress responses in the aftermath of prior domestic violence; • increasing Ms. R’s ability to recognize stress responses; and • increasing Ms. R’s ability to focus when stressed. [ 94 ] Ms. Rubin indicated that Ms.

R’s feelings of tension and anxiety about her circumstances often caused her to respond with stress and feeling overwhelmed, Thus, she worked with Ms. R on implementing coping strategies. [ 95 ] As noted earlier, Ms. Rubin spoke very positively about Ms. R’s level of engagement and progress in dealing with both domestic violence and anger management issues.

2. Ms. R’s evidence [ 96 ] Ms. Rubin’s evidence about Ms. R’s positive level of insight and progress was again reinforced through Ms. R’s own evidence. For example, I asked Ms. R about her view of the work she did with Ms. Rubin in addressing anger management issues and the use of specific techniques she learned from Ms. Rubin such as the “S.T.O.P” and “ABC, 123”. Her evidence included the following: A. The stop is -- you stop, observe or you take in and then you observe and then you praise.

You just -- it’s kind of -- if you’re ever in a moment where you feel like you’re under any type of stress or anger, it kind of -- you can -- we have to do exercise where you actually put your feet to the ground, make sure you feel them on the ground, observe things around you. You have to look off into a space and you have to kind of clear your mind of everything you’re thinking of and, that’s just an exercise we do to kind of relieve stress.

And then the A, B, C’s is if ever in a situation where somebody’s actually speaking to me where I could feel a sense of anger coming on, it’s almost like you sing the A, B, C’s in your head to yourself, rather than, I guess, take criticism to what the people are saying to you. So, that way, you don’t have a reaction back to them. Q. What’s 1, 2, 3? A. It’s kind of just pretty much the same thing. You know, you know, stop, observe, look around, keep your balance and things like that.

So, if I’m ever in a situation where I feel like my anxiety could start to rise up or I feel like I’m going to be angry or lash out at somebody --- Q. Um-hmm. A. --- those exercises help because I can take myself back, stop, and observe and look around. Q. Yeah. A. Or sing the A, B, C’s. She also had another thing with beads, like, if you’re just holding a necklace in your hand… [ 97 ] As noted earlier, Ms. Rubin testified that Ms. R’s emotional responses were triggered by feelings of stress and tension so that she worked with Ms. R on coping strategies.

While drawing conclusions about a person’s ability to control anger based on how they conduct themselves in court isn’t determinative, and should be done with caution, it’s hard to imagine a more stressful situation to Ms. R than being immersed in a multi-day child protection trial where: • the future of her youngest child was at stake; • the Minister sought to permanently deprive her of any parental relationship with D; • she represented herself and had to respond to a number of procedural issues including two motions brought by the Minister after the evidence was initially concluded.

Despite not completing high school or having any formal legal training, Ms. R was able to thoughtfully address the various procedural issues; • the Minister was represented by very senior and capable counsel experienced in child protection matters who subjected Ms.

R to a thorough cross-examination; • she had to listen to evidence and submissions from the Minister which alleged that she wasn’t able to safely parent D and was dishonest and not credible; and • she had to present and argue her case before the same judge who, months earlier, placed her four older children in the Minister’s permanent care over her objection. [ 98 ] Despite this, it was noteworthy to me that, during the course of this trial, Ms. R presented as a respectful and thoughtful litigant who was in control of her emotions. Again, this gives me comfort that the work she has done with Ms.

Rubin in terms of managing anger in response to stressful situations has been beneficial.

3. Evidence of the Minister’s Witnesses [ 99 ] Jessica Sampson, an access worker employed by the Department of Community Services, testified for the Minister at both trials. She’s been responsible for supporting and supervising access between Ms. R and her children for the last year and a half. Initially, this was with all five children but has just been with D after the four oldest children were placed in permanent care. Since June of 2018, the visits with D have been occurring in Ms. R’s apartment approximately twice per week. She therefore testified she has observed Ms.

R parent D “tens of times”. [ 100 ] I referenced Ms. Sampson’s evidence at the last trial in paragraph 72 of my decision. As I noted, she spoke positively of Ms. R’s interactions with all five children as well as Ms. R’s ability to manage all of them despite their young ages and different ages. She testified: • Ms. R had “very appropriate” interactions with all five of her children. • Ms. R did well even when she was required to correct their behaviours. • Ms. R was engaged with the children during the visits. • In terms of physical care, Ms.

R “does it all” and was able to give them their snacks, coordinate taking them to the bathroom together and would get them ready to go when it was time for the visits to end. [ 101 ] Ms. Sampson gave similar positive evidence on Ms. R’s parenting with D since my last decision. She reported no concerns of Ms. R demonstrating anger while parenting D. She stated: • The access visits in Ms. R’s home go very well; • D is happy to see his mom; • D is a “happy-go-lucky” child; • She has no concerns about how D presents at access visits; and • She hasn’t observed anything in relation to Ms.

R’s parenting which has caused her any concern. [ 102 ] CB also acknowledged that there were no significant concerns raised by any employees of the Agency who witnessed access visits between Ms. R and D. [ 103 ] In conclusion, the Minister has failed to satisfy me that there are ongoing concerns over anger management that would place D in a substantial risk of harm if returned to Ms. R’s care. Concern #3 – Instability and lack of viable plan

[ 104 ] In paragraphs 107-113 of my prior decision, I found that Ms. R hadn’t presented me with a viable plan of care which satisfied me that her four oldest children could be safely returned to her care.

I noted that: • She had only recently recommenced counselling with a new counsellor to address the concerns with respect to issues of anger management and domestic violence; • She hadn’t secured stable housing; • She hadn’t completed the steps to secure a stable source of income to financially provide for the children; and • There had been no home visits by Agency workers to assess where the children would live, or how Ms.

R could care for the children on her own in their new home. [ 105 ] I therefore agreed with the Minister that the lack of progress in these areas would continue to pose a substantial risk of harm to the children if returned to Ms. R’s care. [ 106 ] Since the last trial, Ms. R has addressed all these issues. Specifically, she: • Has made significant progress in her therapy with Ms. Rubin on the issues of domestic violence and anger management; • Has secured her own apartment; • Has secured a stable source of income; and • Access visits with D have progressed into her home. [ 107 ] Ms.

R was questioned about her current circumstances and future plans. Her testimony included the following: Q. Okay. And I recognize, [Ms. R], I’m asking you some, you know, some personal questions here. I’m not trying to be disrespectful but my job is to consider [D]’s best interests and I have to consider, you know, the competing plans and risk of harm to him. So, that’s why I’m asking you this. All right? A. Yes. Q. Okay. Now, I heard you say in your testimony that you are working towards getting your GED. Can you just, at a high level, tell me what your future plans are in terms of your life?

What are you planning to do? A. Well, I always wanted to be a lawyer. So, but my mind actually has a few different things. So, I need actually to sit with a career consultant to see what exactly I’m better at. So, right now, I’m just kind of taking my GED to basically get that part of my education out of the way. So, that way, I can meet with a career consultant to see what my specialties are. I have a lot of different things, like event planning, lawyer, or therapist. Q. Um-hmm. A. I’ve a lot of things that I’ve wanted to do. I just don’t know what I’m going to actually end up doing.

But right now, I just want to attain the GED because that’s just something I’ve always wanted to do. Since I had [S], I was part of a program. [S] was enrolled in daycare and she got to go to daycare free while I did the GED. I never completed it because I had gotten pregnant for [C] and then moved out here. So, when I heard that it was free, I looked into it a couple of times but never actually went. And when my therapist suggested to me that I should look into it again, I went ahead and called and put myself right into it. Q. All right.

And in terms of the future, what sort of -- do you plan in terms of your living arrangements? I know you have a 2-bedroom that potentially you said is on-hold now.

A. Yes. Q. But what is your plan? Where are you plan

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