Nova Scotia (Community Services) v. H. H., 2016 NSSC 314

SUPREME COURT OF NOVA SCOTIA (Family Division) Citation: Nova Scotia (Community Services) v. H. H., 2016 NSSC 314 Date: 20161116 Docket: SFSNCFSA 093657 Registry: Sydney Between: Nova Scotia (Community Services) Applicant and H. H. and C. C. Respondent LIBRARY HEADING Judge: The Honourable Associate Chief Justice Lawrence I. O’Neil Heard: April 7 and 15, 2016; June 3, 6, 7, 8. 16, 17 and 21, 2016; July 13, 21 and 22, 2016; September 1, 2016 and November 10, 2016 in Sydney, Nova Scotia Issue: Should the Respondents’ children be placed in the permanent care of the Minister of Community Services?

Summary: The Respondents’ three children were placed in the sole custody of members of the mother’s extended family. The oldest child, a special needs child, was placed in the care of his grandfather. The other two children were placed in the sole custody of the maternal aunt who lived next door to the grandfather. Keywords: permanent care; burden of proof; child protection Legislation: Children and Family Services Act, S.N.S. 1990 c.5 Maintenance and Custody Act , R.S.N.S., 1989 c.160

THIS INFORMATION SHEET DOES NOT 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 (Community Services) v. H. H., 2016 NSSC 314 Date: 20161116 Docket: SFSNCFSA 093657 Registry: Sydney Between: Nova Scotia (Community Services) Applicant and H. H. and C. C. Respondents 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.” Editorial Notice: Identifying information has been removed from this electronic version of the judgment. Judge: Associate Chief Justice Lawrence I. O ’ Neil Heard: April 7 and 15, 2016; June 3, 6, 7, 8, 16, 17 and 21, 2016; July 13, 21 and 22, 2016; September 1, 2016 and November 10, 2016 in Sydney, Nova Scotia

Counsel: Adam B. Neal, Counsel for the Minister Coline Morrow, Counsel for H. H. Alan J. Stanwick, Counsel for L.C. By the Court : Introduction [ 1 ] The Minister of Community Services seeks permanent care of three children, all born to H. H. The children were fathered by C. C. The children J.H. (d.o.b. May 8, 2005); S.H-C. (d.o.b. September 21, 2010) and I.H-C. (d.o.b. July 20, 2012) are currently in the temporary care of the Minister of Community Services.

Two children reside in different foster homes and the oldest child resides at the Wood Street Centre, a home for children with behavioural issues inter alia . [ 2 ] This permanent care hearing commenced April 7, 2016 and continued on April 15, 2016. The matter was then adjourned to June 3, 2016 for continuation. The presiding Judge was unable to continue. Pursuant to Rule 82.19, I assumed the matter. Additional evidence was received on June 3, 6, 7, 8, 16, 17 and 21; July 13, 21 and 22 and completed on September 1, 2016.

Medical issues experienced by one counsel prevented the matter from continuing on August 15 and 17, 2016 as planned. Written submissions followed. Due to the unavailability of one or more parties or their counsel, oral submissions were delayed to November 10, 2016. History of Proceedings [ 3 ] On November 5, 2014, a Notice of Protection Application was filed by the Minister of Community Services.

As a result of the ensuing Court appearance, on November 7, 2014 an order issued permitting the Minister to supervise the children ’ s care in the home of the Respondents. [ 4 ] On February 18, 2015, the Minister served notice it was taking the three children into care and it did so. This decision was triggered by the Minister finding the three children in the unsupervised care of C. C. ’ s oldest child, who has a history of violence. This was learned as a result of an unscheduled home visit to C. C. ’ s residence on February 18, 2015.

On February 25, 2015, the Minister sought a review of the Protection Order and was granted an order placing all three children in the care of the Minister. The temporary care order was confirmed at the disposition hearing on April 27, 2015 and at the two reviews, one on August 21, 2015 and a second on November 23, 2015. [ 5 ] On April 7, 2016 the Minister filed its plan for the permanent care of all three children. [ 6 ] The proceeding is now beyond the time line for completion. The outside date for completion was April 27, 2016.

Although the hearing commenced prior to April 27, 2016, it was necessary to extend the time limit for completion beyond the statutory time line; in the best interests of the children. In addition, the Judge who presided over the initial part of the hearing became unavailable to complete the proceeding. The Court must terminate this proceeding and return one or more of the children to the Respondents or, as proposed in the alternative by the Respondents, place one or more of the children in the care of a member of H. H. ’ s extended family or grant permanent care of one or more of the children to the Minister.

The Governing Legal Principles Legal principles

- outside date for conclusion of proceedings [ 7 ]

Section 45 of the Children and Family Services Act, S.N.S., 1990, c.5 ; the CFSA provides that proceedings involving children must be completed within identifiable time frames. These time frames vary, reflecting the age of the child. The proceeding itself has several stages and each of these stages must be completed within time frames.

Typically, a proceeding that runs the entire time line has an interim hearing stage; a protection stage; a disposition stage and reviews of disposition. -identifiable risk and burden of proof [ 8 ] The Minister must establish on a balance of probability that the children are in need of protective services because of a risk of future harm to the children or that their current needs are not and can not be met by the parents/guardians and the children can not be protected if left in the care of the Respondents.

At the protection and subsequent stages, the Court must establish that the children continue in need of protective services, if the Minister wishes to remain involved in a family without the consent to that involvement. -options for this disposition [ 9 ] Among the options for final disposition outlined by

Section 42 of the “ CFSA ” , the court may (1) dismiss the Minister's case for one or more children; or (2) the court may order that one or more of the children be placed in the permanent care and custody of the Minister. - criteria to be applied [ 10 ] Section 2 (1) of the Act identifies the purposes of the CFSA to be the protection of children from harm; the promotion of the integrity of the family and the need to assure the best interests of children. Throughout its deliberations the court must have as its paramount consideration the best interests of the children.

This directive is contained in section 2(2) of the CFSA . [ 11 ] Section 3(2) of the CFSA gives a list of criteria that assist in determining the best interests of a child. The text of that sub

section is reproduced at paragraph 13. Section 3(2) must be read with s. 22 (2) of the CFSA , reproduced in part at paragraph 18. Best interests criteria [ 12 ] As stated, the CFSA requires that the ultimate decision of the court when determining the appropriate disposition following this hearing be that which is in a child ’ s best interests. ( CFSA , s.2(2), s.42(1)). [ 13 ] S.3(2) of the CFSA contains fourteen enumerated circumstances if deemed relevant. I am not prohibited from considering additional relevant circumstances.

For ease of reference, I reproduce s.3(2): Best Interests of Child 3(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; (

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, compared with 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 a parent 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. [ 14 ] Extensive evidence was received in this proceeding over several months in 2016. Expert reports were received; social workers evidence was also tendered. Extensive pleadings with detailed affidavits have been filed since the proceeding commenced.

Both Respondents testified. [ 15 ] This court is required to assess the evidence, to determine whether the Minister has met its burden of proof, that is to establish on a balance of probabilities that the children are in need of protective services as defined by s.22(2) of the CFSA and if so, to determine by reference to the circumstances enumerated in s.3(2) what disposition is in the children ’ s best interests. [ 16 ] What then are the relevant conclusions that have been reached by the court on a balance of probabilities?

The answer to this question requires a critical assessment of the evidence as it relates to the circumstances that give rise to the alleged risk, a conclusion as to whether a risk continues to exist and the merits of plans put forward for the children ’ s care.

Position of the Parties Need for protective services [ 17 ] The Minister has asked that all three children be found in need of protection and that the disposition be their placement in the permanent care and custody of the Minister. The Respondents argue that the children are not in need of protection and the proceeding should terminate and the children should be returned to them with the oldest child J. being placed in H. H. ’ s care and the two younger ones, S. and I. being in C. C. ’ s care. Alternatively, H.

H. asks the Court to place the children in the care of two members of her extended family. [ 18 ] The Minister relies upon the following sub-sections of the CFSA supra , as a legal basis for its application: s.22(2)(

b) and (g). Either of these may be the legal basis for an order for permanent care and custody. For ease of reference, they are produced below. Since s.22(2)(

a) and (

f) are referenced in (

b) and (

g) respectively, they too are reproduced: s.22(2) A child is in need of protective services where (

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; (

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

f) the child has suffered emotional harm, demonstrated by severe anxiety, depression, withdrawal, or self-destructive or aggressive behaviour and the child's parent or guardian does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm; (

g) there is a substantial risk that the child will suffer emotional harm of the kind described in clause (f), and the parent or guardian does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm; . . . . . [ 19 ] Following a disposition hearing the court, prior to removing a child from the care of a parent or guardian must conclude that leaving the child with the parent or guardian is not in the child ’ s best interest. Section 42(2) and (3) provide as follows: 42.

(2) The court shall not make an order removing the child from the care of a parent or guardian unless the court is satisfied that less intrusive alternatives, including services to promote the integrity of the family pursuant to

Section 13, (

a) have been attempted and have failed; (

b) have been refused by the parent or guardian; or (

c) would be inadequate to protect the child.

(3) Where the court determines that it is necessary to remove the child from the care of a parent or guardian, the court shall, before making an order for temporary or permanent care and custody pursuant to clause (d), (

e) or (

f) of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family pursuant to clause (

c) of subsection (1), with the consent of the relative or other person. [ 20 ] As stated, the Minister ’ s Notice of Application (exhibit 15, tab 1) offered two basis for requesting a child protection order. [ 21 ] The agency ’ s plan of care filed April 24, 2015 (exhibit 15, tab 5) sought temporary care of all three children. The criteria then identified for determining whether the children should be returned to the Respondents was outlined. [ 22 ] With respect to H.

H., the Minister wanted her (1) to address substance abuse; (2) to attend for a mental health assessment and treatment; (3) to improve her parenting skills; (4) to refrain from involvement in criminal activities; and (5) to address her history of a conflictual relationship with C. C. and to engage in an anger management program through the Elizabeth Fry Society. [ 23 ] With respect to C. C., that he address the same five issues, although the recommended details for doing so were different. [ 24 ] On April 7, 2016, the Minister filed an amended plan of care in favour of permanent care of all three children.

At page 10, the Minister explained why, in its view, the circumstances justifying the proposal for permanent care were unlikely to change within the time frame of this proceeding and as a consequence of which the Minister was applying for permanent care of the children. [ 25 ] The agency plan states the following: Why the circumstances justifying the proposal are unlikely to change within the reasonably and foreseeable time not exceeding the maximum time limits H. H. has unresolved issues in regards to her mental health needs and has made little effort in addressing such needs. H.

H. has not been able to complete the Anger Management Program to date and missed a recent appointment. H. H.’s anger has been evident when she is engaged in access with C. C. and she has also struggled with self-regulation. There continue to be concerns associated with substance abuse. H. H. has tested positive for Ritalin in December 2015, January 2016 and February 2016. H. H. disclosed that she had taken her friends medication and that she had thought it was the Effexor. H. H. has also had positive tests for cannabinoids.

There continues to be issues in access despite ongoing meetings with the family support worker. The parental capacity assessment that has made numerous recommendations for H. H., some of which were also recommended by the agency. Respondent C. C. has continued to use marijuana despite ongoing meetings at addiction services and with the family support worker. He does not appear to recognize this as a concern. C. C. has completed anger management but continues to exhibit anger and frustration that has been directed towards H. H. and at times, the children.

There continues to be issues in access despite ongoing meetings with the family support worker. It should be noted that the agency has been involved with C. C. and H. H. for a number of years and similar services were put in place to assist the family but the issues continue to persist. It is unlikely, given the history, current involvement and time remaining that either Respondent is able to make the changes to alleviate the risk factors present to the children.

Therefore, the Agency’s plan for the children is permanent care with no access for either Respondent. [ 26 ] To fully appreciate the history of the Respondents’ attention to directions of the Minister following commencement of this proceeding, it is instructive to review the significant time commitment made by the Respondents to ensure all their opportunities to have time with the children were realized.

These parents have been diligent in their exercise of access to the children when that access was made possible by the Minister. [ 27 ] The Respondents ’ lives, while the Minister has been involved in this proceeding, have been dominated by the need to visit their

children. This proceeding has resulted in their planning their lives in a way that addresses the Court ordered obligations imposed upon them and their understanding that they needed to visit the children for the children ’ s sake. The visits were important for these parents. Both parents fully understood the visits were for the children ’ s well being. [ 28 ] In my view, evidence from the many access visits confirms the Respondents have achieved progress as they strive to achieve competence to care for the children.

They have responded to the concerns raised by the Minister and forming the basis of the Court ’ s earlier findings. - H. H., the Respondent [ 29 ] The Respondent H. H. testified on July 25, 2016. She was cross examined by counsel for the Minister of Community Services. [ 30 ] H. H. ’ s first child I. recently attained seventeen (17) years of age. He was until recently in the care of H.H ’ s mother. Until he was twelve (12) years of age, H. H. raised him. However, her abuse of opiates resulted in her loss of responsibility for his care. [ 31 ] H. H. confirmed that she and the Respondent C.

C. lived together for ten (10) years and they were together for thirteen (13) years. H. H. testified that following the birth of her second child, J.H., (d.o.b. May 8, 2005), she used opiates for pain relief and became addicted. As stated, that addiction ultimately resulted in her first child living with her mother. [ 32 ] H. H. confirmed that when she separated from the Respondent C. C. in September 2015, the children remained behind with him. [ 33 ] H. H. is now a participant in the methadone program and is subject to random urine sampling at least three times each month.

She confirmed she relapsed at one point, having injected ritalin to obtain a drug induced high. She says she is not currently using ritalin. She testified that she is in frequent contact with the addiction services office for ongoing support of her efforts to overcome her addiction. [ 34 ] H. H. reviewed the structured and detailed program of assistance she has been following with the support of the child protection agency. The program involves family support workers; access workers and appointments related to her opiate recovery program.

Access to the children has frequently required travel to Margaree, Truro or Halifax. [ 35 ] H. H. undertook to ensure the children meet all their appointments if the children are returned to her and C. C. Her preferred plan is for the two younger children to be returned to one parent and for J. to be placed with the other. Alternatively, she would support the children being placed in the care of her father and sister in […]. The later plan would have J. living with her father and the two younger children living next door with her sister. She would also reside with her father. [ 36 ] H. H. is confident she and C.

C. can communicate effectively to parent the children even though they have separate households. [ 37 ] During cross examination by counsel for the Minister, H. H. confirmed her history of involvement with child protection authorities. She confirmed complaints of property damage arising from conflict with C. C. in the 2006-2008 time period. She confirmed that in 2011 her drug use and the state of her mental health made her an unsuitable parent. [ 38 ] As referenced, she confirmed her relapse in 2015 and 2016 which involved the use of ritalin. [ 39 ] H.

H. was questioned about urine test results over the past eighteen (18) months and her drug use. She admitted to a couple of “ slips ” .

- C. C., the Respondent [ 40 ] C. C. is the father of the three subject children and two other children. One of his other children, a teenager referenced to herein as J2., lived with him for a short time. In March of 2015 the three subject children lived with C. C. who also lived separately from H. H. at that time. During this period, the children were in C. C. ’ s care under a supervision order. One of the conditions being that the children not be left in J2. ’ s care. As a result of the children being left by C. C. with J2., when C. C. left to buy groceries, the children were taken into care.

J2. has a conviction for assaulting one of the children. [ 41 ] H. H. was dealing with her addiction issues at the time and she was not then an option for providing care for the children. [ 42 ] C. C. acknowledges a history of smoking marihuana dating to his childhood beginning at the age of ten. He says it assists in the management of his anxiety and has a calming influence. His consumption over the past year has declined. He is taking steps to obtain a medical certificate to permit him to smoke marihuana. [ 43 ] I am satisfied that C.

C. ’ s consumption of marihuana is not an obstacle to his parenting the subject children. Clearly, it was not an obstacle in the eyes of the Minister, when the children were placed in his care solely in March of 2015. I am satisfied the Minister was aware of his use of marihuana but judged it did not pose a risk to the children receiving appropriate care. I agree that was a correct assessment then and it continues to be so. [ 44 ] The Court heard from many access facilitators; social workers and other professionals whose mandates required them to report any evidence that C.

C. ’ s capacity to parent was affected by impairment by a substance or impairment of any kind. No evidence of this nature was offered by them. The Court is not prepared to conclude that his consumption of marihuana results in his being less capable of being a good parent. His evidence, which is uncontradicted, is that it has a beneficial effect on him in this respect. [ 45 ] In my view, evidence of his consumption of marihuana, without more evidence, has limited value in deciding the issues before the Court. I am of the view, however, that the use of marihuana to address his anxiety is a positive in his life.

There may be alternative ways for him to lessen his anxiety. [ 46 ] C. C. is unusual in his presentation. I am satisfied he is an intelligent and loving parent. He articulates well. His description of his acceptance of “ corporal ” punishment is clear. Notwithstanding his use of strong words such as “ beating ” , “ spanking ” , “ slapping ” , “ hitting ” and the like, he clearly means light tapping of a child ’ s hand as a means of redirecting a child ’ s behaviour when verbal direction fails. He says he does not ever leave red marks or any other evidence of the contact.

He says such contact with any one of the children is followed by a loving embrace. [ 47 ] He says his method is not abuse, is permitted by law and is not used frequently. I accept his evidence describing how he touches the children as a form of discipline. [ 48 ] Clearly the line of questioning on this subject was understood by him to be an opportunity to distance himself from acceptance of corporal punishment. He did not. His evidence was not self serving on this point. Quite the contrary. His credibility is enhanced as a consequence. [ 49 ] In my view, he was a forthright and candid witness.

He intervened when H. H. was abusing drugs to protect the children and says he would do so again. I am satisfied he would. He contacted the Minister and communicated his concern about H. H. as a parent because of her substance abuse. [ 50 ] He acknowledged his decision to leave the children in the care of J2. was a mistake. He did not attempt to minimize this error. In my view, he was sincere on this point.

[ 51 ] C. C. has an empathy and understanding of his son J. ’ s condition. His understanding is not a result of medical training. C. C. has learned how to effectively parent J. This involves knowing what negatively impacts J. not necessarily why. His testimony revealed a high level of caring, love and attention to and for J. He gave evidence of his many visits to see J., whether at Chisholm House or the Wood Street facility. His diligence in being there at access visits for J. is evidence of his commitment to him. I am satisfied he gave thought to how to ensure the visits were successful for J.

He arrived prepared with food and games for entertainment. [ 52 ] C. C. diligently prepared for and attended visits with the two younger children as well. [ 53 ] All evidence of visits by both parents with the three children leads to the unavoidable conclusion that the access visits were successful. They were characterized by love between the parents and the children and appropriate parenting. [ 54 ] C. C. explained his reports of aliens and belief in the same are based on hallucinations he experienced when high a significant number of years ago.

I reject the notion that he had visions of this nature at other times and is somehow mentally ill. This is the clear implication of the questioning. As for a general belief in the existence of aliens, C. C. observed 70% of the population believes aliens exist. Whether this statistic is accurate or not, he did make his point. He has company. - D. H. and A. H. [ 55 ] On the last day of evidence in this matter, the Court heard from the Respondent H. H. ’ s father, D. H. and her sister A. H. D. H. and his daughter A. H. live in adjacent properties across the driveway from one another. D.

H. ’ s former home is now owned by A. H. D. H. purchased and then moved into a smaller home next door. [ 56 ] A. H. has two children, a fourteen year old daughter and an eighteen year old son who I conclude, lives independently. The children of the Respondents, subject to this proceeding, have visited both of these homes. I am satisfied D. H. and A. H. are known to the subject children and the children are comfortable with their maternal grandfather and their maternal aunt. [ 57 ] Both D. H. and A. H. are impressive.

They are candid, serious adults with a clear understanding of their role as parents, prospective parents of the Respondents ’ children and the need to assert their authority with the Respondents or the subject children, should that need ever arise in their relationship [ 58 ] D. H. is most recently retired from a position as a […[ manager in […]. He advanced over the years to this, the most senior managerial position at the […].

He had significant supervisory responsibilities and authority on site and he needed to function in a larger organization that had its main business office elsewhere. [ 59 ] He is sixty-nine years old; lives alone; reported no health concerns; is clearly alert, intelligent and hard working. Following his retirement, he accepted employment as a […] manager. In that role he is called upon to […] in the Cape Breton […] from Forchu in Richmond County to Dingwall in Victoria County. He is employed from the spring until the early fall. He is called out when needed to perform this work.

Some of his work days are long, others short. [ 60 ] D. H. knows the child J., particularly well and frequently attempted to arrange visits with him while J. was at Wood Street. He expressed astonishment at the lack of support from the Minister of Community Services for this to happen. He complained of the lack of coordination and internal communication within the organization. He testified that he did everything he could to arrange to see his grandson, including having a criminal record check done.

He clearly is of the view that his grandson is just a file to be managed by the Minister of Community Services. [ 61 ] D. H. is a no nonsense individual dedicated to his family, including his grandchildren. He gets along with his former wife, the mother of both of his daughters. He was clear in saying that if he is entrusted with J. ’ s care, he will meet his grandson ’ s needs and will ensure the extended family will also be involved. He would ensure J. is never in the care of anyone who puts him at risk, including the Respondents.

[ 62 ] D. H. believes the Respondents are the persons best suited to care for the subject children. He says his daughter has overcome her addiction habits and is a capable, caring parent when not abusing drugs. He agrees that when she is on opiates, it is obvious to him and she should not have responsibility for caring for the children. He also says C. C., the Respondent, is a good parent. [ 63 ] He says his plan has H. H. also living with him to assist with J. ’ s care. [ 64 ] The Minister says D. H. was unaware H. H. had relapsed with ritalin and therefore, he can not ever be sure she is using or not.

However, the scenario D. H. proposes would have H. H. with him every day for observation. The scenario would also have her subject to the careful observation of C. C. and her sister A. H. I am satisfied that with that level of supervision any change in behaviour by H. H. will be noticed, and addressed. [ 65 ] D. H. proposes to share responsibility for caring for J. with his daughter who lives next door. He acknowledges that some days he will be less available because of his employment. [ 66 ] In my view, D.

H. is more than capable of managing the needs of J. and when he is not present, more than capable and willing to ensure arrangements are made to have J. ’ s needs met by others. I am satisfied he will be very responsible when that need arises. [ 67 ] Similarly, A. H. is impressive. She is candid and loving as a parent. She has a social conscience as evidenced by her volunteering to work with the local […] a decade or so ago.

That effort resulted in her gaining some paid employment through the organization. [ 68 ] The employment required her to make public presentations on drug abuse; hepatitis ‘ C ’ and issues arising from the misuse of drugs. She regularly visited schools to educate young people. [ 69 ] She left this employment to advance her career and to improve her employment prospects. She is entering the second year of a three year […] program at a local community college. Clearly, she is ambitious. She is a single parent. [ 70 ] A. H. confirmed her relationship with the subject children.

They were frequently at her home prior to being taken into care. She asks the Court to order the two younger children to be placed with her if the Court is satisfied that is a better option than returning them to their parents. [ 71 ] She proposes that she and her father essentially assume care of all three children and assist each other in that task. Clearly, both she and D. H. envision involving the Respondents as they deem appropriate and in circumstances that do not give rise to concerns for the children. [ 72 ] Like her father, A.

H. says she will exercise her authority to ensure the children are never compromised by any sense of loyalty she feels to her sister, H. H. or to C. C. I am satisfied this is true. [ 73 ] A. H. now has a good relationship with her mother, a retired […] who is involved in A. H. ’ s life in a supportive role as she is with H. H. In fact, the maternal grandmother is raising H. H. ’ s first child, I., who is now seventeen years of age. Both of H. H. ’ s parents and all of the grandchildren have a history of sharing family celebrations.

This is an established and healthy support network for all concerned, including the subject three children. [ 74 ] The Court was interested in learning from both D. H. and A. H. why their plan was only presented at the last moment; as the evidence in this matter concluded.

[ 75 ] I am satisfied with their explanations. A. H. explained that she never believed the Minister would persist to this point based on what she believed was the complaint, which resulted in the children being removed from C. C., i.e. leaving the children in the care of C. C. ’ s teenage son. D. H. says he did not appreciate he could involve other people in a plan to care for the children, believing instead that he would have to do it all himself.

To do so, he would be required to quit his job; seasonal employment he needed because he does not have a pension from his former employment. [ 76 ] Given all I have heard from them directly and considering all other evidence, it is clear that each of these persons are interested, motivated and committed to doing what is necessary to raise the subject children and to treat them as well as their biological children; a standard that I am satisfied was very good. [ 77 ] It is worthy of note that D. H. was passionate when talking of changes to J ’ s behaviour after being taken into care.

His commitment to the well being of these children is clear. What he knows of J. ’ s behaviour while in care is what he has learned as a result of the Minister ’ s disclosures. [ 78 ] D. H. and other members of J. ’ s family, including the Respondents, observed that J ’ s behaviour was “ better ” prior to being taken into care.

All acknowledge he had some issues to manage but these were more successfully managed within the family context than in an institutional context. [ 79 ] The Court was not told that autism is progressive, a reality that might explain the change and deterioration in his behaviour after being placed in care. The Court was not really told why the reports of J ’ s behaviour with family members was different, assuming the reports of family members to be true. I am satisfied they are. [ 80 ] Whether D. H. is correct in explaining the deterioration of J. ’ s behaviour, or not, is an issue that I can not resolve.

Similarly, C. C., the Respondent testified as to the contrasting behaviour of J. when in school and at home, during the period before he was taken into care in the fall of 2014. He acted out at school but was much better behaved at home. [ 81 ] D. H. confirmed his willingness to access any autism support program available to help him care for J. and to cooperate with the Wood Street Centre to effect J ’ s transition to his care. I am satisfied that he will. - Dr.

Reginald Landry, Ph.D. [ 82 ] The evidence of an expert is often significant. [ 83 ] When called upon to consider the evidence of an expert witness, the Court must be mindful not to delegate its role as the ultimate decision maker. [ 84 ] The evidence of Dr. Reginald Landry, Ph.D. is summarized in his report entitled Psychological Assessment of Parental Capacity (exhibit 1) dated March 21, 2016. Dr. Landry testified on April 7 and 15, 2016.

His report identifies the purpose of the assessment to be the following: Purpose of the Assessment A Psychological Assessment of Parental Capacity was requested by Sherry Johnson with the Department of Community Services-Child Welfare. The assessment was requested in order to provide a report which will outline concerns and recommendations. It was noted that C. C. has had ongoing issues with drug use, emotional regulation, anger management, parenting issues, and he has reported that he has had contact with aliens and that they “provided him with al the information in the universe”. It was noted that H.

H. has had ongoing

issues with drug use, emotional regulation, anger management, parenting issues, and has made threats of self harm. [ 85 ] Under the heading

Summary and Conclusions, Dr. Landry states inter alia (at p.40-42):

Summary and Conclusions . . . . . 1. C. C. would benefit from regular psychotherapy to deal with his history of adversity and, in particular, his difficulties with anxiety. Given his well-developed cognitive abilities, he would benefit from structured cognitive behavioural strategies. 2. In addition, given his issues with trust, he would benefit from some confidentiality. Otherwise, it would be very difficult for the therapist to establish a therapeutic relationship. 3.

He would benefit from a psychiatric assessment to assess the issue of his anxiety and to discuss the implications of using marihuana to deal with anxiety. 4. H. H. would benefit from an updated psychiatric assessment, given the issues related to an acute mood disorder. 5. H. H. would benefit from some regular psychotherapy to help with her mental health needs as well her experience of adversity. She would benefit from cognitive-behavioural strategies that focussed on her current functioning. 6. H. H. would benefit from some education on the manifestation of ADHD in adulthood. 7.

A useful reference for dealing with some of the issues of the person with ADHD is The Disorganized Mind: Couching your ADHD brain to take control of your time, tasks and talents by Nancy Ratey. 8. Another useful reference is Taking Charge of Adult ADHD by Dr. Russell Barkely. 9. She may benefit from some explicit coaching on regulating her feelings using strategies in addition to the use of pharmacotherapy (e.g. psycho-stimulants). 10. A useful referenced for thinking about emotional issues in people with ADHD is Smart but Stuck: Emotions in Teens and Adults with ADHD by Dr. Thomas Brown. 11.

Another useful reference and strategy is The Mindfulness Prescription for Adult ADHD: An 8-Step Program for Strengthening Attention, Managing Emotions, and Achieving Your Goals by Dr. Kidia Zylowska and Dr. Daniel Siegel. 12. C. C. and H. H. would benefit from counselling to improve their stress management (e.g., nutrition, sleep hygiene). 13. C. C. and H. H. would benefit from some couple’s counselling to help them work out the issue of parental roles and patterns for communication, particularly around issues related to their individual patterns of regulating their feelings.

14. Parenting strategies that are being taught would likely be most effective if it included some modelling of the skills. C. C., in particular, would benefit from some education about the specific rationales for the interventions being taught. [ 86 ] In the course of his oral evidence, both on direct and cross examination, Dr. Landry elaborated on a number of the observations and conclusions in his report. [ 87 ] In particular, on cross examination, Dr. Landry agreed the Respondents have the capacity to parent children, although he recommends a gradual type of return of the children to their care.

He explained that with the right interventions, the Respondents can parent their children. [ 88 ] Dr. Landry ’ s observations, conclusions and recommendations must be interpreted and evaluated after all the evidence is considered. The Court has the benefit of far more information about the functioning of the Respondents as parents than was available to Dr. Landry. [ 89 ] As Dr.

Landry observes, a parent ’ s individual issues are important considerations because a parent ’ s individual issues can affect the environment in which a child lives and this in turn can have a profound development effect on a child (p.16). It is important to remind ourselves that the existence of individual issues does not always lead to this result. For this reason, evidence of parenting must be carefully considered.

Chisholm House, Wood Street Centre [ 90 ] The Court heard from a number of professionals employed as staff or outside service providers at the Wood Street Centre, i.e. ‘ Wood Street ’ located in Truro. The Wood Street Centre is a residential facility that hosts between fifteen and twenty youth identified as displaying behavioural issues. All are clients or direct referrals by the Department of Community Services.

The Court ’ s belief is that youth not placed in this facility by the Department of Community Services are ineligible to reside there. [ 91 ] The subject child J. was transferred to the Wood Street Centre in November 2015 from Chisholm House in Halifax. Chisholm House is also a home for children displaying behavioural issues. J. resided at Chisholm House from March 15, 2015 to November 2015. [ 92 ] The Court also heard from staff and service providers at Chisholm House. Chisholm House, Halifax [ 93 ] Mr. Daniel Abar, the Director of Clinical Services at Chisholm House testified.

He holds a MEd in counselling and has responsibility for overseeing the Chisholm House clinical programs; has responsibility for making recommendations for the care of the children; for implementing recommendations and is responsible for liaising with family members. [ 94 ] Mr. Abar confirmed his belief that J. was admitted to Chisholm House following a breakdown at the foster placement. Through Chisholm House, J. received medical care and was placed in the public school system. [ 95 ] J. attended the […] School and benefited from the services of a TA (teaching assistant) in the learning centre.

There were incidents at the [,,,] School which involved property damage by J. He also engaged in aggressive behaviour towards other students and threw chairs. A number of times the Chisholm House crisis unit was called to the school and on one or two occasions, police were

involved. [ 96 ] At Chisholm House, J. also displayed other behavioural challenges. He was temperamental, would engage in swearing, kicking, throwing, pushing and he would damage property. [ 97 ] Staff at Chisholm House would attempt to reduce J. ’ s sensory load and intervene with physical holds on occasion. [ 98 ] Mr. Abar gave evidence of J. ’ s severe problem with constipation, for which he was prescribed laxatae. This resulted in soiling for J. and made swimming and other activities impossible. Managing this issue, without shaming J., became a challenge for staff at Chisholm Centre. [ 99 ] Mr.

Abar testified that finally it was realized the public school system was not workable for J. and a decision was made to refer J. to the Wood Street Centre. A requested psychological assessment arranged by Wood Street could not be completed because of J. ’ s behaviour. This assessment had been attempted during J. ’ s two brief stays at Wood Street in the spring of 2015. [ 100 ] Upon his second brief stay at Wood Street in June 2015, he was seen by Dr.

De boer and protocols for his care were put in place and J. was returned to Chisholm House. [ 101 ] After returning to Chisholm House, acting out behaviour persisted and as stated, a decision to place J. at Wood Street for ongoing care was made in the fall of 2015. He was discharged from Chisholm House on November 3, 2015. [ 102 ] The Court heard detailed evidence of the manner in which J. was transported to Wood Street from Chisholm House. Wood Street Centre, Truro [ 103 ] The Court learned from Wood Street staff that J. has significant challenges.

The evidence of Nina Haynes-Dempsey, an occupational therapist employed at the Wood Street Centre was particularly helpful. Her reports were current. She assists in developing, managing and overseeing the implementation of those plans. She also serves as case manager. [ 104 ] Ms. Haynes-Dempsey described a child whose response to multiple environmental stimuli made it difficult for him to function. She described the steps being taken to assist J. and reported progress. She impressed the Court as knowledgeable of all aspects of J. ’ s circumstances.

She was balanced and thoughtful in her responses. [ 105 ] There is no question that J. is benefiting from the Wood Street Centre program at this time. [ 106 ] The Court also heard from Sarah Angelopoulos, the clinical director at the Wood Street Centre and the evidence of Dr. De boer, a psychiatrist was entered by consent. [ 107 ] Ms. Angelopoulos is a psychologist whose role is to provide over all clinical supervision at the Wood Street Centre. She described services offered at the Centre for children twelve (12) years of age and under and children aged twelve to eighteen (12-18) years of age.

The unit of younger children houses six (6) children and there are two units for the older group each housing six (6) children. In addition, the Centre has two (2) levels of treatment, secure treatment and non secure. [ 108 ] The subject child J. is in the under twelve (12) unit with four (4) others.

[ 109 ] Ms. Angelopoulos explained that J. has multiple services at his disposal including those of clinical staff, a psychologist, a social worker and a consulting psychiatrist. J. has in house individual and group therapy and participates in an in house educational program. In appropriate circumstances, residents can participate in community schooling. [ 110 ] She reported that J. has some dis-regulation which may require restraint and seclusion; verbal and physical intervention. J. also suffers from encopresis.

On cross examination she explained her belief that J. was admitted to Wood Street because of emotional and behavioural regulation and encopresis. She confirmed that J., while at Wood Street, was admitted to the Wood Street secure unit, once or twice, for a period of time because of behavioural issues. [ 111 ] Ms.

Angelopoulos confirmed J. ’ s diagnosis as being an autistic child. [ 112 ] The Court heard from numerous case aides who transported the Respondents to access visits at Chisholm House in Halifax or at other times to the Wood Street Centre in Truro. [ 113 ] The conclusion to be drawn from their evidence is positive with respect to the Respondents. I draw this conclusion on a balance of probabilities. [ 114 ] The Respondents attended almost all scheduled visits with all their children. This required them to devote most of each week to accomplishing this goal.

The three children were not generally living proximate to one another. [ 115 ] The Respondents planned for their access visits with the children. They prepared by packing food and items that would provide an opportunity for play and positive interaction.

While they were with the children the interactions were, for the most part, positive. [ 116 ] Almost all access observers reported loving interaction between the children and their parents and testified to their belief of a strong bond between the parents and the children. [ 117 ] A number of access workers implied a lack of control of the children, on occasion, by the parents when visiting at the Wood Street Centre. However, as was effectively illustrated in cross examination, the room made available for access at that location was inadequate for that purpose given the number of persons involved.

It was refreshing to hear one of the access facilitators forthrightly acknowledge the children were being children and expecting them to sit still in the access room for several hours was unrealistic. [ 118 ] I am satisfied the parents responded calmly and appropriately to the children in a difficult context. The conclusions to be drawn from the evidence of these access workers are not negative in terms of their performance as parents. The Child J. d.o.b. May 8, 2005 [ 119 ] These parents were involved in the life of their child J. when he was in the public school system in the Sydney area.

J. was undiagnosed for much of this time. It is now known that he is autistic. [ 120 ] J. ’ s early behavioural problems resulted in the Respondents having frequent contact with his school and with related professionals, both educational and health care professionals. The Respondents remained attentive advocates for their son. They were not absent when it came time to address their son ’ s needs. They sought help for him at a time when no medical explanation for the child ’ s behaviour was being offered.

In those circumstances, it would not be surprising for questions to be asked about the circumstances in the child ’ s home as a possible explanation for J. ’ s anti-social behaviour. I am satisfied recurring reports about J ’ s behaviour at school is the main reason the Minister intervened in this family in November 2014.

[ 121 ] Following the child J. being taken into care, the Minister of Community Services quickly learned how challenging it was to care for J. No foster home was found. Although the evidence is somewhat contradictory on the issue of whether a foster home could be found for J., I am satisfied his behaviour posed a foster home placement challenge. [ 122 ] When J. was placed in Chisholm House and later at the Wood Street facility, his behavioural issues intensified. Clearly, he had done better when in the care of the Respondents.

His behavioural issues became more concerning after he was taken from the care of the Respondents. [ 123 ] J. is now benefiting from highly specialized services at the Wood Street Centre but he can not remain here and the Minister ’ s plan does not propose this. Finding alternative, timely and comparable help in the community may be difficult but community based programs and supports do exist. The parents love and caring can not substitute for these services. [ 124 ] Change is difficult for J.

The family visits between J. and the Respondents and J. ’ s siblings have been a significant positive feature of J ’ s life. He looks for and loves his family. This aspect of his life cannot be replaced. At his age he knows, appreciates and values the Respondents and his siblings. These relationships are an essential source of happiness and a positive feature of this child ’ s life. For these relationships to be terminated at this stage of his life would be a drastic change in J. ’ s life.

Such would represent the loss of relationships that have been consistently loving and caring. - hand cuffing J. [ 125 ] The Court heard disturbing evidence describing the conditions to which J. was subject to effect his transport to the Wood Street Centre in Truro from Chisholm House in Halifax in November 2015. [ 126 ] He was literally imprisoned at a police facility, handcuffed and transported by police or sheriffs or security officers. He was not treated as a child with special needs.

For the child ’ s care givers, whether at Chisholm House or Wood Street, to simply explain this treatment of J. as it being the protocol of the police department or security officers is not enough. This child was in their care. [ 127 ] Clearly, J. was frequently transported in less draconian ways on many occasions to other places. It appears the so called protocol followed on this occasion flows from “ the need ” for a Court order to effect J. ’ s placement at Wood Street. [ 128 ] Regardless, transporting a vulnerable child as if he is a violent adult offender, is a serious issue that should be addressed.

When the Court learns of circumstances such as those to which J. was subjected in this instance and the apparent acceptance of this protocol by his care givers, it is forced to ask who oversees the decisions and quality of care provided by the Minister of Community Services when it is charged with interim or permanent care of children. [ 129 ] Perhaps it is time for a child ’ s advocate, independent of the government authorities, to be charged with responsibility to advocate for children in care. [ 130 ] The biological parents of J. were consistently advocating on his behalf.

However, given their status as Respondents in a child protection proceeding, it would not be surprising to learn that their voices could not be heard. Conclusion [ 131 ] The Court has been asked to consider three plans for the children. [ 132 ] The Minister proposes to place all three children for adoption together, if possible and in different homes, if necessary.

[ 133 ] The Respondents H. H. and C. C. propose to have the children live with them or with H. H. ’ s extended family members who would have sole custody of the children. [ 134 ] C. C. proposes that one parent be given responsibility for J. and the other be given responsibility for the care of the two younger children. H. H. also proposes this. However, they also support a second plan should the Court not find that plan in the children ’ s best interests. That plan has J. in the care of D. H., with H. H. also living with her father, D. H. and the two younger children living next door to D. H. with her sister, A.

H. [ 135 ] I am satisfied that the Minister ’ s plan is the least desirable option. It is an extreme response and a last resort which is not necessary in the circumstances. I am satisfied no protection concerns as defined by s.22(2) of the CFSA will remain if these children are not placed with the Minister but instead are placed with members of their extended family, D. H. and A. H. as proposed by each of them. [ 136 ] The decision to not return the children to the Respondents is a close call.

However, I am satisfied a risk would remain if the children were placed in their care. [ 137 ] I am satisfied J. will receive the love and support of both parents and his extended family as a consequence of living with D. H. and H. H. I repeat, D. H. is a capable and caring individual. He is honest and fully understands the need to meet the responsibilities he says he will assume. His initial decision to not formalize a plan to care for the children was based on his then belief that he could not meet that responsibility.

It is a decision that lends credibility to his claim that the current plan will permit him to do so. [ 138 ] D. H. will call on his daughter who is living next door and his daughter, the Respondent, who will be living with him, for help from time to time. J. will not be exposed to the effects of drug abuse while under D. H. ’ s care. J. will attend all necessary health appointments, whether related to his dental care, general health needs or autism condition. [ 139 ] Importantly, J. will have the opportunity to preserve his family relationships. I have commented on the value of that experience for J.

His siblings will be next door. He has immediate family in the area. He will be protected, nurtured and understood. [ 140 ] The two younger children will share all the benefits identified for J. They will live next door to J. with an intelligent, experienced mother. A. H. is a positive role model for these children. I have no evidence upon which to conclude the children would be at risk if in the care of A. H. [ 141 ] It is in the best interests of all three children that their sole custody be entrusted to a member of their extended family. The oldest child J. will be in the sole custody of his grandfather D.

H. and the two younger children will be in the sole custody of their aunt A. H. It is a condition of that custody that for as long as H. H. lives with D. H., H. H. not be under the influence of drugs, other than drugs prescribed for her and taken in accordance with the prescription. C. C. is not to live with D. H. Neither H. H. nor C.

C. are to be left with the care of one or more of the children over night. [ 142 ] All changes to the terms of the custody order must be sought through the court and notice that a change is being sought must be provided to the Minister of Community Services. [ 143 ] The parties are invited to make submissions on what additional terms should be contained in the order. [ 144 ] The child protection proceeding will terminate with the issuance of the order under the Maintenance and Custody Act, R.S.N.S., 1989 c.160. [ 145 ] In the interim, steps are to be taken immediately to transition the children to their new homes.

ACJ