Nova Scotia (Community Services) v EW and HC, 2020 NSSC 199

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Nova Scotia (Community Services) v EW and HC , 2020 NSSC 199 Date: June 29, 2020 Docket: SFHCFSA 113220 Registry: Halifax Between MINISTER OF COMMUNITY SERVICES Applicant v EW and HC Respondents Judge: The Honourable Justice Theresa Forgeron Heard: June 29, 2020 Oral Decision: June 29, 2020 Written Decision: July 2, 2020 Counsel Peter C. McVey, Q.C. for the Applicant EW, self-represented Kevin Reardon for HC I. Introduction Application [ 1 ] This permanent care application concerns a one-year old boy, HREC, who was born in January 2019.

EW is the child’s mother and HC is the father. The child was taken into care at birth because of concerns surrounding substance abuse, inadequate housing, inadequate parenting skills, intimate partner violence, and criminal activity. The Child [ 2 ] HREC is a delightful child. He is flourishing in the care of his foster parent. Regrettably, the child faces serious medical challenges. He was diagnosed with Horner’s syndrome which is likely caused by the growing tumor (either a neuroblastoma, ganglionneuroblastoma, or ganglioma tumor) around his cervical spine, near his lungs.

The tumor is on a root nerve that supplies the synthetic nerve system which controls the eye. The child is being followed by the IWK Health Center including the oncology, genetics, physiotherapy, occupational therapy, ophthalmology, and neurology departments. [ 3 ] The child is fortunate to be in the care of a dedicated and devoted foster parent who detected his health issues and ensured professional involvement when it was much needed. Because of the foster parent’s love, care and guidance, the child is exceeding anticipated development gains.

Further, the child, despite his serious health issues, is a cheerful, loving, and confident little boy. [ 4 ] The court expresses appreciation to the foster parent and all professionals involved in this child’s multi-faceted care. Reports of the child’s happiness and continued successes are encouraging.

Position of the Minister [ 5 ] The Minister seeks a permanent care and custody order. The Minister states that the child continues to be a child in need of protection because he is at a substantial risk of physical harm and because the parents have effectively abandoned their son. Position of the Respondents [ 6 ] The parents’ position was not communicated to the court. Neither parent participated at the hearing. The mother stopped engaging with the Minister and the court in October 2019; the father stopped participating in June 2019. [ 7 ] The Minister, through the worker and Mr.

McVey, repeatedly reached out to the parents to re-engage them. Their attempts were not successful. [ 8 ] Neither parent had recent contact with their lawyer. Ms. Gilmer was permitted to withdraw as counsel for the mother in April 2020. Despite many concerted attempts, Mr. Reardon was unable to connect with the father. Because he had no instructions, Mr. Reardon was unable to advance a position on the father’s behalf. II. Procedural History [ 9 ] The child was taken into care at birth.

The child was placed in the Minister’s care and custody after his hospital discharge. [ 10 ] Interim court proceedings were completed by March 1, 2019. The protection finding was granted by consent on May 3, 2019 based on a substantial risk of emotional abuse under s. 22(2)(

g) of the Children and Family and Services Act , 1990, c 5. The first disposition hearing was held on July 30, 2019. Review orders were granted on October 30, 2019; December 6, 2019; February 10, 2020; and April 28, 2020. [ 11 ] At the outset, the Minister sought an order for temporary care and custody, while offering both parties services to successfully address the considerable protection concerns.

Proposed services included education from a family support worker; counselling with a therapist to address trauma, mental health issues, domestic violence, and personal issues; therapy with an addiction counsellor; addiction treatment from a methadone treatment program; and toxicology testing. [ 12 ] Initially, the mother made some advances, but she was unable to sustain the progress. As a result, the Minister sought a permanent care order in the child’s best interests. [ 13 ] The permanent care hearing was held on June 29, 2020, with an oral decision being rendered on the same date.

I placed the child in the permanent care and custody of the Minister. This endorsement confirms the oral decision and provides written reasons to the parties. III. Issues [ 14 ] Two issues were determined at the permanent care hearing, as follows: • Should the permanent care application proceed when statutory time limits have not expired? • Should a permanent care order be granted? IV. Analysis

[15] Should the permanent care application proceed when statutory time limits have not expired? [16] The Minister asked that a permanent care order be granted even though the statutory time limits have not expired. [17] I granted the Minister’s request after applying the legal principles stated in Mi’Kmaw Family and Children Services v. D.(K.),2012 NSSC 379, at paras 26-29. In so doing, I considered past parenting history. Although “[t]here is no legal principle that history isdestiny”, past parenting history is relevant as it may signal “the expectation of future risk”: D.(S.A.) v.

Nova Scotia (CommunityServices), 2014 NSCA 77, para 82. The court is concerned with probabilities, not possibilities. Therefore, where past history aids in thedetermination of future probabilities, it is admissible, germane, and relevant. [18] After considering the evidence, I found that the protection concerns are unlikely to change within a reasonably foreseeable time.

My reasons to support this conclusion are as follows: • Neither the mother nor the father successfully addressed the protection concerns. • Neither the mother nor the father is participating in services. • Neither the mother nor the father holds insight into the issues which gave rise to the protection proceedings. • Neither the mother nor the father made any meaningful or lasting lifestyle changes. • The protection concerns were unresolved for many years. For example, the mother had three other children. Two of the threechildren are living with other family members. The third child was adopted.

The mother does not have custody because she was and isunable to offer a healthy, safe, and loving environment. • HREC was never in the care of either the mother or the father. The child was in the care of the Minister essentially since birth. The child has no relationship with either parent. • The father stopped exercising access in June 2019; the mother in October 2019. • Neither the mother nor the father had contact with the workers in many months. They have not asked about the child’s well-being. [19] This child has significant needs. He requires love, security, and stability.

The protection concerns are not being addressed. This is not likely to change in the near future. It is in the child’s best interest to proceed with the permanent care hearing. [20] Should a permanent care order be granted? [21] The Minister asked that a permanent care order issue. [22] I granted this request under s. 22(2)(

b) and 22(kb) of the Act. I found that the Minister proved that the protection concerns,which resulted in the original order, still exist; that the parents did not effect positive lifestyle changes; and that the child remains in needof protective services: sec. 46 of the CFSA; and Catholic Children’s Aid Society of Metropolitan Toronto v.

M. (C.), (SCC), [1994] 2 S.C.R. 165, at paras. 35 to 37. [23] I made this finding after applying the threefold legislative purpose set out in s. 2(1) of the CFSA- to promote the integrity of thefamily, to protect children from harm, and to ensure the best interests of children, and while giving effect to the paramount consideration- the best interests principle as stated in s. 2(2) of the Act. [24] In addition, I applied a child-centered approach.

I considered factors unique to this child, including those associated with hisphysical, medical, emotional, and social developmental needs, and those associated with risk of harm. [25] In granting the permanent care order, I am satisfied that less intrusive alternatives were offered to both parents. The parents,however, failed to meaningfully participate. As a result, I granted the permanent care order pursuant to s. 22 (2)(

b) and 22(2) (kb) of theAct.

Section 22(2)(b) – Substantial Risk of Physical Harm [ 26 ] The evidence supports a finding under s.22(2)(

b) of the Act. The Minister proved that there is a real chance that physical harm would occur if the child were returned to his parents. I made this finding after applying the test set out in M.J.B. v. Family and Children’s Services of Kings County , 2008 NSCA 64 , para 77 , and for the following reasons: • Both parents have significant drug addictions. Their addiction negatively impacts all aspects of their lives from impaired decision- making to the dangerous assumption of risk.

Priority is assigned to the purchase and consumption of drugs rather than meeting the physical, medical, emotional, and social needs of their child. • Neither parent has a stable and safe home. They were at times homeless. On occasion, they lived in shelters. At other times, they lived with the father’s biological mother until conflict resulted in eviction. Such a lifestyle would expose the child to a real chance of danger of physical harm. • The mother has untreated mental health issues. She does not seek therapy or professional assistance.

This too increases the risk of physical harm. • The parents engage in criminal activity to feed their addiction. Such a dangerous way of life increases the likelihood that the child will be physically harmed if returned to the parents’ care. • The parents lack basic parenting skills, so necessary to safely raise a child, especially a young, vulnerable child such as HERC. The lack of parenting skills increases the likelihood of physical harm. • The father abused the mother.

Domestic violence represents a real chance that the child will also be physically and emotionally harmed. [ 27 ] The evidence overwhelmingly supports a finding that the child remains in need of protection because there is a substantial risk, that if returned to his parents’ care, the child would suffer physical harm because of his parents’ failure to supervise and protect the child adequately. Section 22(2) (kb) – Abandonment [ 28 ] The evidence also overwhelmingly supports a finding under s. 22(2) (kb) of the Act.

The Minister proved that by their inaction, lack of contact, and failure to participate, the parents are unable or unwilling to resume care of the child.

Summary on Permanent Care Order [ 29 ] The Minister proved that a permanent care order is in the best interests of this child because he remains a child in need of protection as there is a substantial risk that he will be physically harmed if returned to his parents’ care because of their drug addictions, the mother’s untreated mental health conditions, domestic violence, lack of housing, and lack of parenting skills. Further the Minister proved that the parents are unable or unwilling to resume care of the child. V. Conclusion [ 30 ] The Minister’s application is granted.

The child remains a child in need of protection. The child has significant medical needs. The child requires love, stability, guidance, and attention. These needs can only be met through the issuance of a permanent care order. The parents’ lives are chaotic, dangerous, and unstable. There is no order for access. Forgeron, J.