Minister of Community Services Applicant v. G.M. Respondent Restriction on Publication: Pursuant to subsection 94(1) of the Children v. Family Services Act, 2022 NSSC 348

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Nova Scotia (Community Services) v. G.M. , 20 22 NSSC 348 Date: 20221202 Docket: SFKCFSA No. 123446 Registry: Kentville Between: Minister of Community Services Applicant v. G.M. Respondent Restriction on Publication: Pursuant to subsection 94(1) of the Children and Family Services Act , there is a ban on disclosing 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 a relative of the child.

This decision complies with this restriction so that it can be published. 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.” Judge: The Honourable Justice Jean M. Dewolfe Heard: November 4, 2022 in Kentville, Nova Scotia Written Release: December 2, 2022 Counsel: John MacMillan for the Minister of Community Services Kathleen Hutchinson for the Respondent, G.M.

By the Court: [ 1 ] This is an application by the Minister of Community Services (the “Minister”) to place a 2-year-old child, L. in the permanent care and custody of the Minister, pursuant to the Children and Family Services Act, S.N.S. 1990, c. 5 (the “ Act ”). [ 2 ] G.M. is L.’s mother. L.’s possible father has had no access to L. since birth and has not been involved in these proceedings. [ 3 ] G.M. seeks to either have L. returned to her care, or, in the alternative, to have him remain in the temporary care and custody of the Minister.

The statutory timeline in this proceeding expires on March 21, 2023. [ 4 ] This matter was scheduled to be heard on October 31, 2022, but G.M. did not appear. The matter was rescheduled to November 4, 2022 when it was heard. The hearing took place by Microsoft Teams Video, with consent of the Minister and G.M. BACKGROUND [ 5 ] G.M. is 19 years of age. She was 17 years old and in the permanent care and custody of the Minister at the time of L.’s birth. After L.’s birth, she and L. resided at SHYM supportive housing for young mothers. In December 2020, G.M. left SHYM with L. and moved in with her grandfather.

She later moved into an apartment of her own where she still resides. [ 6 ] In April 2021, G.M. placed L. in the voluntary care of the Minister. He was returned to her care in early September 2021. [ 7 ] On September 22, 2021, L. was taken into temporary care and custody of the Minister due to concerns as to inadequate supervision and parenting. In particular, the Minister had told G.M. that her grandmother, G.L., was not to care for L. for more than two hours at a time, and the Minister had concerns that this direction was not being followed. [ 8 ] L. has remained in a foster home since that time. G.

M. had sporadic supervised access to L. until May 2022, but has not had

access since that time. EVIDENCE Minister’s Evidence [ 9 ] The Minister submitted affidavits from social workers Hannah Wallace and Hayley Borden. They provided direct testimony at the hearing and were cross-examined. Hannah Wallace [ 10 ] Hannah Wallace was the long-term case worker for G.M. and L. from 2020 until January 2022. She described G.M.’s history as a child in care, and G.M.’s conflictual relationship with family members. G.M.’s parents had addictions and domestic violence concerns.

G.M. was in her grandmother, G.L.’s care until 2012, when she was removed after G.L. physically assaulted G.M.’s sister. [ 11 ] As a child in care, G.M. exhibited behavioural issues. She resided in group homes for periods of time, and had been placed at Wood Street Secure Treatment Center. [ 12 ] While G.M. was pregnant she had indicated that she was seeking supports and services, but had only followed through minimally. [ 13 ] Ms. Wallace reported that G.M. did not engage in any of the programs offered for new moms and babies at SHYM. [ 14 ] In April 2021, G.M. told Ms.

Wallace that she felt overwhelmed, and she placed L. in voluntary care. A plan was developed in July 2021 to return L. to G.M., which plan included family support work, counselling, and a mental health assessment. Ms. Wallace noted that G.M. was “crisis driven”, and unable to complete family support course work despite being in frequent contact with the worker. [ 15 ] By August 2021, G.M. had still not completed any counselling. Even so, L. was returned to G.M.’s care in September 2021. [ 16 ] Ms. Wallace explained to G.M. the Minister’s concerns with G.L. caring for L.

First, they felt G.M. needed to be able to care for L. on her own with minimal assistance from G.L., i.e. a maximum of two hours babysitting for appointments, etc. Second, they had concerns about G.L.’s care of L. due to past parenting concerns and her current health. Ms. Wallace noted that G.M. did not recognize any concerns with respect to G.L. caring for L. [ 17 ] When asked in September about the extent of G.L.’s care for L., G.M. lied to Ms. Wallace, and then provided contradictory information. L. was taken into care on September 22,2021. [ 18 ] Ms.

Wallace testified that G.M, inconsistently attended scheduled appointments (counselling, family support work) and access. [ 19 ] G.M. did not request assistance with attending access and services (eg. transportation). [ 20 ] G.M. often cited illness as a reason for missing visits. When Ms. Wallace attempted to talk to G.M. about missing visits and appointments, her response was “nothing I do is good enough”. Hayley Borden [ 21 ] Hayley Borden has been the long term caseworker for G.M. and L. since early 2022. [ 22 ] Ms. Borden reported inconsistent attendance by G.M. at access and service appointments.

For example: • October and November 2021 – seven out of twelve visits missed; visits put on hold; • December 2021 – visits reinstated. G.M. attended one visit on December 11, 2021 but no others. Visits were again put on hold on January 24, 2022; • March 7, 2022 - visits reinstated (twice a week); • May and June 2022, G.M. attended three of eight scheduled visits and ended one visit early. On June 20, 2022, visits again put on hold. [ 23 ] On several occasions G.M. cited illness or exposure to COVID as the reason for cancelling access.

However, often no reason was given, and no advance notice provided. [ 24 ] In May/June 2022, G.M. gave various excuses to Ms. Borden for missed appointments, e.g. a broken phone, a headache, changes in school schedule, landlord fixing something, no minutes on her phone, Covid 19 exposure, a medication change. [ 25 ] Ms. Borden testified that on April 25, 2022 counselling with Derrick McEachern for G.M. was halted, as G.M. had attended only 14 of 31 sessions since August 2021. G.M. had commented to Ms. Borden that she felt counselling was “pointless”, and that all Mr.

McEachern did was make her feel like a “bad parent”. [ 26 ] In April 2022, G.M. refused the Minister’s offer of a bus pass to assist her in attending counselling through Mental Health or Victim Services. [ 27 ] Ms. Borden testified that G.M. refused to allow the Minister to confirm G.M.’s engagement with counselling services through

Victim Services or the Portal. [ 28 ] G.M. refused to participate in a Parental Capacity Assessment. [ 29 ] G.M.’s family support worker was changed twice at her request; however, G. M. cancelled all scheduled meetings with her last family support worker. This service was terminated in early June 2022. [ 30 ] On August 10, 2022, the Agency imposed a requirement on G.M. that she attend three straight counselling sessions with a new counsellor prior to the Agency restarting access. This did not occur, and G.M. has therefore not had any access with L. since May 2022. [ 31 ] In September 2022 Ms.

Borden reported that the Agency had been advised that G.M.’s older sister, B.M., had been staying with G.M., and that B.M. and G.L. had engaged in a disturbance at G.M.’s apartment resulting in police involvement. Sheila Bower- Jacquard [ 32 ] Shelia Bower-Jacquard is a psychologist. She prepared an updated Psychological Assessment Report with respect to G.M. in 2019 (the “Updated Report”).

She had previously conducted a psychological assessment in 2010 (the “2010 Assessment”). [ 33 ] The Updated Report outlined G.M.’s chaotic childhood, noting that G.M. was removed from G.L.’s care and came into permanent care in October 2011. [ 34 ] In the 2010 Assessment, Ms. Bower-Jacquard had determined that G.M.’s biggest deficits were “word knowledge and short- term memory”. Difficulties in behavioral control were noted, and possible diagnoses of anxiety, Fetal Alcohol Syndrome or PTSD in addition to ADHD were identified. [ 35 ] In the Updated Report, Ms.

Bower- Jacquard concluded: (Exhibit 2, p. 34) “(G.M) … has learned to devalue others and not to trust their judgment. Rather than question the correctness of her own beliefs, she assumes that the views of others are at fault. Hence the more disagreement she has with others, the more convinced she is right and the more isolated and alienated she is likely to become. She will need patience in therapy as she may not trust easily and will try to outwit the therapist and asset her control … (G.M.’

s) limited cognitive and academic skills, along with neurological issues, .. trauma, losses and troubling experiences, likely make trusting others difficult.” [ 36 ] She recommended: (Exhibit 2, p. 35): “ … that (G.M.) have the benefit of continued therapy to help her understand how her childhood has contributed to her attachment pattern and support in developing healthy relationship skills, as well as addressing her symptoms of ADHD, trauma, anxiety and depression.”. Derrick McEachern [ 37 ] Derrick McEachern is a registered counselling therapist.

He answered written questions submitted by G.M.’s counsel, which answers were admitted by consent. Mr. McEachern offered counselling to G.M. between the summer of 2021 and June 2022. His C.V. and reports relating his work with G.M., dated February 1, 2022 and April 10, 2022, were also admitted by consent. [ 38 ] Mr. McEachern reported inconsistent attendance by G.M. at counselling appointments. For example, in January 2022 she attended one out of five scheduled counselling appointments. In March 2022 she attended three of five scheduled appointments.

In total, she cancelled at the last minute or did not attend 17 of 31 scheduled sessions. [ 39 ] Mr. McEachern indicated that G.M. presents with symptoms consistent with ADHD, anxiety, depression, and trauma (in particular attachment trauma). Although he had not reviewed Ms. Bower-Jacquard’s assessments, his therapeutic approach was as recommended by Ms. Bower-Jacquard. He reported that he had worked with G.M. to build trust and used trauma informed “emotionally focused individual therapy”. [ 40 ] He noted that while, at times, G.M. appeared “focused and committed to (L.’

s) needs, more often, however, other attachment concerns in the form of crises with others (her sister, Mom, grandmother, romantic interests, friends or CPS workers) left little time for discussing L.’s needs or parenting discussions.” [ 41 ] In Mr. McEachern’s opinion, G.M. had not progressed in therapy and her potential progress in the next four months would depend on “whether she believes and is engaged in her own healing and commitment to parenting”. Respondent’s Evidence G. M. [ 42 ] G.M. filed an affidavit dated November 4, 2022.

She provided direct testimony and was cross-examined. [ 43 ] G.M. lives by herself in an apartment. She has “aged out” of permanent care, but receives some funding from the Minister because she is in school. She is currently attending Nova Scotia Community College (“NSCC”) on a part-time, online basis to complete her high school diploma. [ 44 ] G.M. has not obtained a counsellor through Victim Services. She has enrolled in anger management classes through The Portal. She also complained that the Minister would not provide her with a bus pass, and that Ms. Borden had not approved her choice of counsellors.

[ 45 ] She also complained that the Minister would not fund a course for her through the Kids Action Plan. On cross-examination, she admitted that she was required to pay for the course because she had failed to attend free courses for which she had registered in the past. [ 46 ] G.M. plans to enroll L. in NSCC daycare. However, on cross-examination she admitted she did not know how long the waiting list was for this facility. [ 47 ] Her only support identified in her affidavit is G.L.

In cross-examination she advised that she feels G.L. is able to care for L. because she had completed all the services the Minister required that she complete in the past. She admitted G.L. suffers from liver cirrhosis. She also admitted that in September 2022 her sister B.M., and G.L. had had a heated argument in her apartment, and as a result the police had been called. [ 48 ] On cross-examination she admitted she does not really have any friends.

She recently made two “friends”, who could assist in caring for L., but did not know their last names. [ 49 ] G.M. testified that she suffers from migraine headaches, sometimes four times per week, which incapacitate her for 24-48 hours, for half or more of the time. This is a longstanding issue for G.M. , and treatment consists of lying in a darkened space and taking Advil. This led to her failure to attend Court on October 31, 2022. [ 50 ] G.M. noted that her apartment has black mold, and thought this may be contributing to her ill health.

The Portal is helping her to remedy this. [ 51 ] In her testimony, she confirmed that she feels counselling is “pointless”, but she will do it if the Minister tells her to do it. [ 52 ] She expressed a desire to move to Middleton or New Minas. [ 53 ] She testified that her last romantic relationship was two or three months ago. LAW [ 54 ] This matter is a Review hearing and as such pursuant to s. 46( 4) of the Act the Court is directed as follows:

(4) Before making an order pursuant to subsection (5), the court shall consider (

a) whether the circumstances have changed since the previous disposition order was made; (

b) whether the plan for the child’s care that the court applied in its decision is being carried out; (

c) what is the least intrusive alternative that is in the child’s best interests; and (

d) whether the requirements of subsection (6) have been met. [ 55 ] The Minister must prove on the balance of probabilities that the child continues to be a child in need of protection pursuant to s. 22(2) of the Act . [ 56 ] The Minister relies on subsection (b), (

g) of s. 22(2) which state: (

b) there is a substantial risk that the child will suffer physical harm inflicted or caused as described in clause (a); (

g) there is substantial risk that the child will suffer emotional abuse and the parent or guardian does not provide, refuses or is unavailable or unable to consent to, or fails to co-operate with the provision of, services or treatment to remedy or alleviate the abuse; [ 57 ] Subparagraph (

a) provides: (

a) the child has suffered physical harm, inflicted by a parent or guardian of the child or caused by the failure of a parent or guardian to supervise and protect the child adequately; [ 58 ] The Act defines “substantial risk” to mean a “real chance” of danger that is apparent on the evidence: s. 22 (1) . [ 59 ] The Court is required to make a disposition that is in the child’s best interest: s. 42(1). This requirement is the paramount consideration: section 2(2). The factors which the Court must address in reaching this determination are set out at section 3(2) of the Act which provides as follows:

(2) Where a person is directed pursuant to this Act , except in respect of a proposed adoption, to make an order or determination in the best interests of a child, the person shall consider those of the following circumstances that are relevant: (

a) the importance for the child’s development of a positive relationship with a parent or guardian and a secure place as a member of a family; (

b) the child’s relationships with relatives; (

c) the importance of continuity in the child’s care and the possible effect on the child of the disruption of that continuity;

(

d) the bonding that exists between the child and the child’s parent or guardian; (

e) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs; (

f) the child’s physical, mental and emotional level of development; (

g) the child’s cultural, racial and linguistic heritage; (ga) the child’s sexual orientation, gender identity and gender expression; (

h) the religious faith, if any, in which the child is being raised; (

i) the merits of a plan for the child’s care proposed by an agency, including a proposal that the child be placed for adoption, comparedwith the merits of the child remaining with or returning to a parent or guardian; (

j) the child’s views and wishes, if they can be reasonably ascertained; (

k) the effect on the child of delay in the disposition of the case; (

l) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of aparent or guardian; (

m) the degree of risk, if any, that justified the finding that the child is in need of protective services; (

n) any other relevant circumstances. [60] The Act imposes statutory timelines within which applications must be heard: s. 45(2). Prospects for Change and Legislative Time Limits [61] Section 42(4) of the Act states as follows: The court shall not make an order for permanent care and custody pursuant to clause (

f) of subsection (l), unless the court is satisfied thatthe circumstances justifying the order are unlikely to change within a reasonably foreseeable time not exceeding the maximum timelimits, based upon the age of the child, set out in subsection (

l) of

Section 45, so that the child can be returned to the parent or guardian. [62] Section 46(6) provides of the Act provides as follows: Where the court reviews an order for temporary care and custody, the court may make a further order for temporary care and custodyunless the court is satisfied that the circumstances justifying the earlier order for temporary care and custody are unlikely to changewithin a reasonably foreseeable time not exceeding the remainder of the applicable time period pursuant to subsection (

l) of

Section 45,so that the child can be returned to the parent or guardian. [63] The question of whether a matter should be adjourned, and a parent given more time to address personal deficiencies orproblems, must be resolved by a balancing of the child’s needs, best interest and protection. [Nova Scotia (Minister of CommunityServices) v. S.Z. et al. (N.S.S.C.)] [64] As the Court of Appeal stated in L.L.P. v.

Nova Scotia (Community Services, 2003 NSCA 1 (C.A.), at paragraph 31: 31 The Act does not require a court to defer a decision to order permanent care until the maximum statutory time limits have expired.The direction of s. 46(6) of the statute is to the opposite effect.

Where a child is in the temporary care and custody of the Agency, at eachfurther disposition hearing, the court may not make a further order for temporary care and custody if the court is satisfied that thecircumstances justifying the earlier order are unlikely to change within a reasonably foreseeable time, not exceeding the remainder of theapplicable maximum time period: ANALYSIS AND FINDINGS [65] The Court finds that L. remains in need of protective services, in that there is a substantial risk that he will suffer physical harm,or emotional harm for which G.M. would not provide services to remedy or alleviate, pursuant to s. 22(2) of the Act. [66] G.M.’s circumstances have not improved since April 2021 when she became “overwhelmed”, and placed L. in voluntary care; since September 2021 when L. was placed in temporary care; or since the last disposition order (August 17, 2022). [67] The Court accepts the evidence of Sheila Bower-Jacquard that G.M. requires significant counselling to address her ownattachment issues before she can be expected to make good decisions for herself and L.

She currently has no support system except G.L.and will not reach out for help from the community. She has consistently failed to follow through on services such as family supportwork. [68] G.M.’s plan of care is unrealistic. G.M. does not know if/when NSCC daycare is available, and her only back up for childcareis G.L. and some friends she recently met and knows very little about. G.M. is easily overwhelmed, and would not be able to care for L.without childcare and backup assistance. Her chronic ill health incapacitates her for two to four days per week, yet when asked about

who would care for L. during these times, she had no plan. [ 69 ] Therefore, the Court finds that to return L. to G.M.’s care at this time would expose him to a significant risk or real chance of physical harm due to inadequate care and supervision. [ 70 ] The Court also finds that there is a substantial risk and very real chance that L. would suffer emotional harm in the care of G.M. [ 71 ] G.M. testified that she does not see any reason to engage in counselling, despite recommendations to do so from Shelia Bower- Jacquard in 2010 and 2019.

She clearly has no insight into her need to meaningfully engage in counselling to address her trauma and attachment issues, or to learn any new parenting skills. She says she will attend counselling if required to do so.

However, given her past experience, there is no reason to expect that she will regularly attend or meaningfully engage in services. [ 72 ] The Court also finds that the it is not in L’s best interests to remain in the temporary care and custody of the Minister until the end of the statutory timelines. [ 73 ] Given G.M.’s significant history of disengagement in services, the Court finds that it is highly unlikely that she could address the Minister’s protection concerns prior to the end of the statutory timelines. [ 74 ] G.M. has not regularly engaged in counselling and has refused services provided by the Agency.

She has not obtained alternate service providers on her own, and it is unlikely that she could build rapport with a new counsellor and effect any significant change in the next three to four months. [ 75 ] L. is a very young child who has been in care for most of his life. He has needs which must be met as he grows and develops. It is in L.’s best interests to have permanency and stability.

Those needs clearly cannot be met by G.M., who can barely care for herself. [ 76 ] No family or community placements have been proposed. [ 77 ] The Court finds that the Minister has offered all reasonable services and supports to G.M. who has either refused or failed to engage in same. [ 78 ] The Court therefore orders that L. be placed in the permanent care and custody of the Minister. [ 79 ] Counsel for the Minister is to prepare the order. Dewolfe, J.