Nova Scotia (Community Services) v. E.U., 2015 NSSC 4

Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: Nova Scotia (Community Services) v. E.U., 2015 NSSC 4 Date: 20150106 Docket: SFSNCFSA8244 Registry: Sydney, NS Between: Minister of Community Services Applicant v. E.U. Respondent Library Heading To the Publishers of this case: Please take note that Section 94(1) of the Children and Family Services Act applies and may require editing of this judgment or its headings before publication. Section 94(1) provides: Prohibition on publication 94

(1) 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 a relative of the child. Judge: The Honourable Justice Kenneth C. Haley Heard: July 22 nd , July 23 rd , Sept. 3 rd , Sept. 4 th , Sept. 5 th , Oct. 9 th , Oct. 10 th , Oct. 14 th and Oct. 17 th , 2014 in Sydney, Nova Scotia Final Written Submissions: December 12, 2014 Written Decision: January 6, 2015

Subject:

Summary: Issues: Result: Cases: Permanent Care/Exceeding Statutory Timelines * The Applicant seeks a Permanent Care Order with no provision for access for the Respondent’sdaughter. * The Respondent had drug, domestic violence and mental health issues and had not successfullyengaged in services with the Minister. * The Court found that the child remained in need of protective services and that risk of harm to thechild remained if returned to the Respondent. Permanent care or dismissal Permanent care ordered, with no provision for access.

The circumstances were unlikely to changewithin a reasonably foreseeable time. F.H. v. McDougall, 2008 SCC 53 , [2008] 3 S.C.R. 41 Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., (SCC), [1994]S.C.J. No. 37 (SCC) Nova Scotia (Minister of Community Services) v. L.L.P., [2003] N.S.J. No. 1 (NSCA) D.G. v. Family and Children Services of Lunenburg County and T.M.C. and C.L.G. [2006]N.S.J. No. 432 G.S. v. Nova Scotia (Minister of Community Services), [2006] N.S.J. No. 52 (NSCA) Children and Family Services of Colchester County v. K.T., [2010], N.S.J. No. 474 Nova Scotia (Community Services) v.

T.H., 2010 NSCA 63 Mi’kmaw Family and Children’s Services v. L.(B.), [2011] NSCA 104 THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THEDECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Nova Scotia (Community Services) v. E.U., 2015 NSSC 4 Date: 20150106 Docket No. SFSNCFSA85244 Registry: Sydney, NS Between: Minister of Community Services Applicant v. E.U.

Respondent To the Publishers of this case: Please take note that Section 94(1) of the Children and Family Services Act applies and may require editing of this judgment orits headings before publication. Section 94(1) provides: Prohibition on publication

(1) 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 a relative of the child. Editorial Notice: Identifying information has been removed from this electronic version of the judgment. Judge: The Honourable Justice Kenneth C.

Haley Heard: July 22 nd , July 23 rd , Sept. 3 rd , Sept. 4 th , Sept. 5 th , Oct. 9 th , Oct. 10 th , Oct. 14 th and Oct. 17 th , 2014, in Sydney, Nova Scotia Final Written Submissions Written Release: December 12, 2014 January 6, 2015 Counsel: Danielle Morrison, Counsel for the Applicant Coline Morrow, Counsel for the Respondent By the Court: [ 1 ] This is the application of the Minister of Community Services, hereinafter called “the Minister”, seeking an Order pursuant to s. 42(1) (

f) of the Children and Family Services Act of Nova Scotia (CFSA), that the child, A.U., born March 2013, be placed in the permanent care of the Minister, with no provision for access. [ 2 ] The Respondent, E.U., is the biological mother of the child. She opposes the Application and seeks return of the child to her care. The biological father, D.R., has passed away and no longer is a named party to this proceeding. [ 3 ] The history of the file is as follows: March 11, 2013 [ 4 ] The child, A.U., was taken into care by the Minister at birth.

March 13, 2013 – Interim Hearing [ 5 ] An Interim Hearing (5-Day) was held, pursuant to s. 39 of the CFSA. The child was placed in the interim care and custody of the Minister with supervised access to the Respondent, E.U. April 2, 2013 – Completion of the Interim Hearing [ 6 ] A completion of the s. 39, Interim Hearing, was held. [ 7 ] Court ordered that the child remain in the temporary care and custody of the Minister, with supervised access to the Respondent. May 7, 2013 – Protection Hearing [ 8 ] The child, A.U., was found to be in need of protective services pursuant to s. 22(2)(

b) of the CFSA. [ 9 ] The status quo was to continue, with supervised access to the Respondent. July 19, 2013 – Disposition Hearing [ 10 ] Status quo to continue with supervised access to the Respondent. [ 11 ] Minister’s Plan of Care dated July 18, 2013, filed with the Court. [ 12 ] The Minister agrees to review the Respondent’s request to transfer the file to Ontario where the Respondent wished to relocate and live with a family member.

August 27, 2013 – Disposition Update [ 13 ] The Minister advised that the Ontario Child Welfare Authority did not support a transfer of the file to Ontario and did not support placement of A.U. with the Respondent’s family member. [ 14 ] The Respondent had already moved out of the jurisdiction for work purposes and her counsel had no instructions. October 2, 2013 – Disposition Review [ 15 ] Status quo to continue, with supervised access to the Respondent.

[ 16 ] The Respondent was still in Ontario for work purposes and, as a result, was not exercising access and/or engaging in services.

November 19, 2013 – Disposition Review [ 17 ] Status quo to continue, with supervised access to the Respondent. [ 18 ] The Respondent was still in Ontario and not exercising access and/or engaging in services. [ 19 ] The Minister advised it will be amending its plan to seek permanent care of A.U., with no provision for access. [ 20 ] The Court directed the Respondent to return to the jurisdiction of the Court within thirty (30) days, at which time dates will be scheduled for hearing.

December 18, 2013 – Disposition Review [ 21 ] Status quo to continue, with supervised access to the Respondent. [ 22 ] Minister confirmed its intention to seek permanent care. [ 23 ] The Respondent, E.U., was present and requested that access and services be recommenced immediately. [ 24 ] Final deadline - July 19, 2014. March 12 – 13, 2014 [ 25 ] Counsel for the Respondent requested an adjournment of the March 21 st and March 24 th , 2014 hearing dates. [ 26 ] Adjournment by consent. [ 27 ] New hearing dates assigned – April 10 th and 11 th , 2014.

April 14, 2014 [ 28 ] Matter re-scheduled for Final Hearing to July 22 nd , July 23 rd , July 24 th , 2014, by consent. [ 29 ] Both the Minister and counsel for the Respondent agreed to exceed the statutory times, as it was in the best interests of the child to do so. [ 30 ] Status quo to continue, with supervised access to the Respondent. [ 31 ] On July 22 nd and July 23 rd , 2014 the Minister put forth the following witnesses and evidence as follows: 1. Cst. Dwight Miller – Cape Breton Regional Police 2. Dr. Stephen Farrell – Respondent’s physician. Dr.

Farrell tendered Exhibit #1 , which included, “Correspondence and Copies of Prescriptions Issued and Drug Testing Results”. 3. Joanne McCormick – Access Facilitator. She tendered Exhibit #2 and Exhibit #3 , which were her “Access Notes, Volume 1 and Volume 2”. 4. Mr. Joe Gareri – Hair and Drug Analyst. He tendered Exhibit #6 , “ Drug Testing Results” for the Respondent .

The following exhibits were filed subsequent to the witness’s testimony, namely, “MotherRisk Laboratory Report” of Joey Gerari, dated October 9, 2014, re Review of Hair Test Results for G.H and Curriculum Vitae of Joey Gareri, along with Exhibit #18 , “ Bell Aliant email” dated Friday, October 10, 2014, from Joey Gareri to Jim MacCormack and Coline Morrow , re Review of Hair Test Results for G.H.

These exhibits were tendered on October 17, 2014, while the Respondent, E.U., was subject to examination. [ 32 ] The proceeding was then adjourned to September 3 rd , 4 th and 5 th , 2014 by consent of the parties since there was not sufficient time to conclude the proceeding by July 24, 2014. [ 33 ] On September 3, 2014 the Minister called the following witnesses and evidence: 5. Dr. Salim Hakeem – Respondent’s physician. 6. Paula MacMullin-Beaton – Clinical Therapist with Addiction Services. Ms. Beaton tendered into evidence the “ Addiction Services Records” of the Respondent, which were marked as Exhibit #7 .

The missing Page 8 was subsequently marked Exhibit #8. 7. G.H. – Respondent’s boyfriend. 8. J.M. – Respondent’s friend. [ 34 ] On September 4 th and 5 th , the following witnesses testified: 9. Ainslie Elgebeily – Child Protection Social Worker. Ms. Elgebeily tendered Exhibit #9 , “ Book of Pleadings” , which

consists of the following: Tab 1 Notice of Child Protection Application with the Affidavit of Ainslie Kehoe sworn to March 11, 2013, attached thereto. Tab 2 Affidavit of Ainslie Kehoe sworn to May 6, 2013. Tab 3 Notice of Motion for Disposition Order dated July 17, 2013, with the Agency’s Plan for the Child’s Care dated July 17, 2013 and the Affidavit of Ainslie Kehoe sworn to July 17, 2013, attached thereto. Tab 4 Notice of Motion for Disposition Order dated September 30, 2013, with the Affidavit of Ainslie Kehoe sworn to September 30, 2013, attached thereto.

Tab 5 Notice of Motion for Disposition Order dated November 15, 2013, with the Affidavit of Ainslie Kehoe sworn to November 15, 2013, attached thereto. Tab 6 Notice of Motion for Disposition Order dated April 11, 2014, with the Affidavit of Ainslie Kehoe sworn to April 11, 2014, attached thereto. 10.

Donna Mikkelsen – Child and Care Worker. [ 35 ] The case required more time to complete and with the Respondent being pregnant and due to deliver her new baby on September 20, 2014, the matter was further adjourned, by consent, to October 9 th , October 10 th and October 14 th , 2014. [ 36 ] On October 9 th & October 10th, 2014, the Minister continued with the following witnesses: 11. Dr. Neil Christians – Clinical Psychiatrist. Dr. Christian is the treating psychiatrist for the Respondent. During the course of his evidence, the following exhibits were introduced into evidence.

Exhibit #10 Curriculum Vitae Exhibit #11 Cape Breton District Health Authority Chart for the Respondent Exhibit #12 Report of Dr. Christians, dated July 22, 2014 Exhibit #13 Report of Dr. Christians, dated October 6, 2014 Exhibit #14 Report of Dr. Christians, dated August 18, 2014 Exhibit #14(

b) Report of Dr. Christians, dated September 16, 2014 [ 37 ] On October 14 th and 17 th , 2014, the Respondent called the following witnesses: 12. Heather Gouthro: Outreach Coordinator at Transition House 13.

E.U. , the Respondent. “Exhibit #15” and “Exhibit #16” were tendered into evidence. [ 38 ] The Respondent does not contest and, indeed, acknowledges her past lifestyle and conduct, which caused the Minister’s concern about her ability to parent. [ 39 ] Nevertheless, the Respondent now claims to be drug free, in a stable relationship and has engaged in services, some at the instance of the Minister and others that have been self-initiated. [ 40 ] The Respondent is of the view that her previous, unacceptable, lifestyle is a thing of the past and that she now presents no risk to her child in a care giving role. [ 41 ] It should be noted that earlier, on July 22 nd , 2014, the Respondent called: 14.

Lisa Carr – who works at the Cape Breton Family Place Resource Centre. Ms. Carr provided parenting programs to the Respondent (see “ Exhibit #2 ). [ 42 ] The evidence was thus concluded, with written submissions to be submitted by counsel to the Court. [ 43 ] Counsel requested additional time in order to obtain a transcript of the 9-day hearing. Original dates for submissions were November 10 th for the Minister and November 25 th for the Respondent. The dates were later extended to November 25 th and December 12 th , 2014 respectively. Minister’s Evidence

Cst. Dwight Miller [ 44 ] Cst. Miller has been employed by the Cape Breton Regional Police for fourteen (14) years. He testified about an incident involving the Respondent on June 22, 2012, in response to a 911 call. [ 45 ] The Respondent was residing with her husband, D.R., at the time. The officer noted damage to the apartment walls, apparently done as a result of Mr. R. punching same. [ 46 ] The Respondent was threatening to jump from her upstairs window and was arrested under the Involuntary Psychiatric Act.

While awaiting the ambulance, the Respondent attempted to run up the street yelling that she would have to be dragged to the hospital and, if Cst. Miller touched her, she would have his job. [ 47 ] Cst. Miller found the Respondent to be “stressed out” and “agitated”. He formed the opinion that the Respondent was under the influence of a narcotic. Dr. Stephen Farrell [ 48 ] Dr. Farrell has been a family physician for thirty-eight (38) years. The Respondent has been his patient since June 10, 2013. [ 49 ] The Respondent’s initial complaint was that of dental pain [caused by her long-time use of crack cocaine]. Dr.

Farrell prescribed Tylenol 3 for pain on April 11, 2013 and June 10, 2013 (see Exhibit #1 ). Each prescription provided the Respondent with thirty-six (36) tablets. The April 11, 2013 prescription provided the Respondent with a 9-day supply; the June 10, 2013 prescription provided a 12-day supply. [ 50 ] Reportedly, the Respondent was also taking Tylenol 1 for pain. Tylenol 1 can be obtained without a prescription, but must be issued by a pharmacist (see Exhibit #1 , page 5). [ 51 ] Dr.

Farrell testified that an excessive use of Tylenol 1 would be problematic and would not be in the best interests of the Respondent if, indeed, she was taking one hundred (100) tablets per week. [ 52 ] Dr. Farrell saw the Respondent seven (7) times from April 11, 2013 – April 25, 2014. On January 28, 2014, the doctor made a mental health referral to Dr. Christians, who saw the Respondent in June 2014. [ 53 ] Also, on January 28, 2014, the Respondent advised Dr. Farrell that she was pregnant. As a result, a referral was made to an obstetrician. Joanne McCormick [ 54 ] Ms.

McCormick has been employed by the Department of Community Services as a Case Aid and Access Facilitator for seven (7) years.

She became involved with the Respondent’s file on April 12, 2013. [ 55 ] The witness’s notes were tendered with the Court as Exhibit #3 , Exhibit #4 and Exhibit #5 , which references the Respondent’s access visits from April 12, 2013 – June 27, 2014. [ 56 ] Counsel for the Minister was very thorough in referencing the witness’s notes and bringing forth the details and/or concerns of the Minister with regard to the Respondent’s visits with her infant daughter, A.U. [ 57 ] Access was interrupted from July 17, 2013 – January 13, 2014 since the Respondent had moved back to Ontario.

Suffice to say, the witness did agree that upon the Respondent’s return in 2014, she did a very good job with access. Joey Gareri (

a) The Respondent, E.U. [ 58 ] Mr. Gareri is a Laboratory Manager and Researcher at the Hospital for Sick Children in Toronto, Ontario. Mr. Gareri was qualified, without contest, as an expert in the area of hair, urine and meconium analysis with regard to drugs and alcohol. [ 59 ] Mr. Gareri has testified in the Nova Scotia Supreme Court on a regular basis and his qualifications have been accepted by the court to testify as an expert witness. Mr. Gareri’s C.V. was tendered as Exhibit #17 [ 60 ] Exhibit #6 is the Report of Mr.

Gareri regarding the drug use of the Respondent with regard to three (3) samples taken on April 9, 2013, February 15, 2014 and May 31, 2014. He concluded that the meconium sample of the newborn child, A.U., collected one (1) day after birth, tested positive for codeine at the very high end of the calibration scale, namely in excess of 1600 nana grams (i.e.) numbers are not given past 1600. The sample also tested positive for morphine at a concentration of 727 nana grams per gram of meconium, which is a substantial amount. Mr.

Gareri testified: This result indicates use of codeine by this baby’s mom likely during the third trimester of pregnancy, either relatively frequent codeine use during this time, or codeine use very close to the time of labour and delivery. Morphine is a metabolite of codeine… so the morphine present is likely due to the codeine. It is also important to note that the morphine could be there from independent use of morphine, or even from use of heroine which is also metabolized to morphine. So there are possible explanations for the morphine finding. [ 61 ] Mr.

Gareri further testified: Q: …let’s say if the mother took Tylenol 3 on the day of delivery, would that result in that kind of codeine response?

A: I couldn’t rule that out. Q: Now, within the time frame we’re looking at here, you said this would be the last trimester of pregnancy? A: Yes. Q: So this would be items consumed by the mother, if the birth of the child was March 6, the period the mother could have taken codeine and/or morphine would be from January, December? A: I’d say December 2012 to February 2013 inclusive. [ 62 ] Regarding hair samples provided by the Respondent on April 9, 2013, Mr. Gareri testified: A: …A total of six centimetres of hair was tested.

Hair grows at an approximated rate of one centimetre per month, and this six month period was tested in three, two month segments. So the zero to two centimetres essentially represents February and March, 2013. [ 63 ] Mr. Gareri found that it tested positive for cocaine at a level of 1.42 nana grams/milligram. For the time period February – March 2013, Mr. Gareri testified: ...the level of cocaine we detected is in the medium range.

It’s around 30th percentile for our population, so this would indicate repeated use of cocaine during that two month time frame. [ 64 ] For the time period December 2012 to January 2013, the two (2) to four (4) centimetre

section of hair also tested positive for cocaine in a higher concentration. Mr. Gareri testified: …so this result of 4.25 nana grams per milligram of hair is above the 50th percentile, indicating also a repeated use of cocaine for this two (2) month period, at a greater intensity than the repeated use demonstrated in the February – March time period. [ 65 ] For the time period October – November, 2012, or the four (4) to six (6) month segment of hair sample analysis, E.U. also tested positive for cocaine at a concentration of 8.81 nana grams/milligram. Mr.

Gareri testified: …this cocaine concentration is in the high range, so amongst cocaine-positive individuals from our laboratory population, which is 95% child welfare related cases, this result is in the top 25% of values and is indicative of frequent or intensive use of cocaine during this two (2) month time period. [ 66 ] Regarding codeine levels of the Respondent from October 2012 – March 2013, Mr.

Gareri testified: …so, we’ve looked at three distinct two month periods from October (2012) to March (2013) inclusive, and in each two month period, there appears to be a similar overall level of codeine use. [ 67 ] The next hair sample analysis was provided by the Respondent on February 21, 2014. It covers the time period from August 2013 to January 2014. Mr. Gareri testified: Q: So looking at the November to January 30th segment, that would be zero to three? A: Yes. Q: And, what do we have a positive there for? Codeine? A: Yes, so this

section of hair is positive for codeine only, at a concentration of 0.65 nana grams/milligram of hair, indicating some use of codeine during this three (3) month time period. The concentration is relatively low, and looking at Ms. E.U.’s previous sample, it’s substantially lower than her other samples, so overall it indicates a decrease in the average intensity of codeine use during this three (3) month period, as compared to her previous tests. Q: Alright then, can we go to the three (3) to six (6) month segment from February? A: …this three (3) to six (6) month centimeter

section represents approximately August to October 2013, inclusive. This segment of hair was positive for cocaine in trace amounts. Trace, meaning a very low concentration of cocaine… [ 68 ] Mr.

Gareri went on to testify that this trace positive amount of cocaine is consistent with one (1) of two (2) scenarios: …the first scenario is isolated or infrequent use of cocaine, on as little as one occasion between August and October 2013. …the second primary scenario that would be consistent with these results would be frequent past exposure to cocaine during this time through either exposure to second hand smoke on a regular basis, um, drug residues in a regular environment, such as touching the head.

So, for example, if she had a friend who smoked crack in their living room and she’s sitting on the couch a few times a week, her hair is touching the couch which is smoked around often, that kind of direct contact with contaminated services on a regular basis, or frequent direct physical contact with a heavy cocaine user. [ 69 ] Mr.

Gareri agreed that this trace amount of cocaine could be the result of a person blowing cocaine on the Respondent while sleeping, which was identified as a possible source when the Respondent was living with J.M. [ 70 ] The third and final hair sample was provided by the Respondent on May 31, 2014, representing the three (3) month period from mid-February to mid-May, 2014. This sample was positive for codeine at a level of 0.59 nana grams/milligram. Mr. Gareri testified:

This result would indicate some use of codeine during this three (3) month period. [ 71 ] Ms. Gareri considered this result to be similar to, and consistent with, codeine used by the Respondent between November 2013 and January 2014. [ 72 ] During cross-examination, Mr. Gareri testified as follows: Q: So, if Ms. E.U. had told the Agency that her use of drugs, that she stopped using drugs such as cocaine in or around the end of October, 2013, these results would back that up? Other than codeine, correct? A: Other than codeine, I have no evidence of use of any of the other drugs tested after October 2013.

Q: …And you would agree with me that the amount of codeine is a low level result in 2014? A: The concentration in this sample is in the low range for our codeine reference range. Q: Showing infrequent use? A: Yeah, it would suggest relatively infrequent use… [ 73 ] Mr. Gareri concluded his evidence by stating the Respondent’s later results showed “a very good progress with regard to illicit drug use”. He confirmed that all her levels are going down and she has had a relatively consistent amount of testing. (

b) G.H. [ 74 ] At the close of proceedings on October 17, 2014, counsel for the Minister and the Respondent tendered by consent a further Report of Mr. Gareri, dated October 9, 2014 with regard to hair sample analysis for Mr. G.H. This report also contained Mr. Gareri’s C.V. and was marked Exhibit #17 . [ 75 ] The hair sample was collected July 4, 2014 and represents approximately six (6) months of drug exposure from late December 2013 to late June 2014. The sample tested positive for trace amounts of cocaine, benzoylecgonine, codeine (very low range), cannabinoids and alcohol. Mr.

Gareri reported at pages 1 and 2: Cocaine: The positive cocaine findings in each segment suggest a history of cocaine exposure in this individual. The very low- level findings in both segments do not provide conclusive evidence of active cocaine use by this individual during the six-month time period tested. Benzoylecgonine: The presence of benzoylecgonine (cocaine is converted to benzoylecgonine by the body after administration of the drug) is generally a confirmation of active cocaine use in adult hair samples.

This test helps distinguish between passive (i.e. second-hand) and active exposure to cocaine in samples containing low levels of cocaine. The absence of detectable cocaine metabolites in the 0-3 cm segment means that active cocaine use by this individual, while possible, is not conclusively proven by these findings. The presence of benzoylecgonine in the 3-6 cm segment, while suggesting active cocaine use, does not provide clear evidence of use due to the very-low level cocaine result. [ 76 ] Mr. Gareri provides three (3) scenarios which could explain his findings.

He opines at page 2-3 of his report that based upon the pattern of results observed that scenario (ii) provides the best explanation for the current findings, although all three (3) scenarios are possible.

Scenario (ii) states as follows: (ii) Higher-level (i.e. repeated) use of cocaine in the recent past (within 1-2 months prior to late December 2013) and these results are residues left over from previous use…. … Codeine: This hair sample tested positive for codeine, suggesting use of codeine during each three-month time period tested, with a slighter lower average level of use in the more recent three-month period.

Based on the “trace” findings in the 0-3 cm section, it remains possible that codeine use was limited to the single time period from late December 2013 to late March 2014 as described for cocaine in scenario (ii) above. Please note, since codeine is a prescription medication, it is important to determine whether this individual filled any legitimate codeine-containing prescriptions during the tested time period. Low-dose codeine formulations (i.e. Tylenol 1) are also available without prescription.

Cannabinoids: …Our cannabinoids analysis reflects the concentration of THC, the primary psychoactive component of marijuana/hashish…This hair sample tested positive for “trace” concentrations of THC, indicating frequent use of cannabis by this individual during each three-month time period tested…. Alcohol: …analysis of Mr.

H.’s hair sample provides suggestive evidence of frequent heavy alcohol use between late March and late June 2014….These findings in and of themselves should not be considered conclusive proof of frequent heavy alcohol use during this time in the absence of additional supporting evidence. [ 77 ] In addition to Mr. Gareri’s formal report, he also provided an email response in answer to a question posed by counsel for the Respondent on October 10, 2014. This email has been tendered by consent and marked Exhibit #8 . Q: …Mr.

H. reports using cocaine in 2013 starting in September 2013 and ending in or around October 13, 2013. He reports no use of cocaine since that time. Is this consistent with your findings?

A: I would consider a last cocaine use in October 2013 to be consistent with these findings as described in scenario (ii) of the cocaine

section of my letter. Dr. Saima Haleem [ 78 ] Dr. Haleem is the physician who treated the Respondent during her pregnancy and delivered the baby, A.U., in March 2013. [ 79 ] Dr. Haleem testified that the baby was “jittery”, “restless” and had “involuntary movements”. The doctor attributed these symptoms to withdrawal from drugs. The newborn baby was kept in the hospital for ten (10) days. [ 80 ] Dr. Haleem testified that the baby, A.U., has both physical and developmental delay, which she again attributed to maternal drug use. [ 81 ] Dr.

Haleem further testified that the baby, A.U., will require a lot of follow up, including the possibility of specialized care through the I.W.K. Hospital in Halifax, Nova Scotia, although no trips are currently planned. [ 82 ] Dr. Haleem testified that she sees A.U. every two (2) to three (3) months and that the child is speaking, walking and catching up on her developmental milestones. Paula McMullen-Beaton [ 83 ] Ms. Beaton works with Addiction Services as a Clinical Therapist. She has been involved with the Respondent since January 16, 2014. Ms.

Beaton filed Addiction Records with the Court, which were marked as Exhibit #7 . [ 84 ] The Respondent has met with Ms. Beaton on five (5) occasions, which included: January 16 th , January 30 th and April 31 st , 2014. These were primary assessment sessions. Ms.

Beaton outlined her treatment recommendation at Tab 3, Page 5 of Exhibit #7 as follows: * Continue to attend CBS counselling in order to examine ways to remain substance free and in a steady recovery. * Attend self-help recovery activities in order to develop the support of others in maintaining her sobriety. * Participate in a women’s structured relapse prevention program on the next offering of the program. [ 85 ] The Respondent has since participated in only two (2) cognitive training sessions with Ms. Beaton on May 22 nd and June 17 th , 2014.

Cognitive Therapy focuses on trying to change a person’s beliefs by challenging their behaviour. This is a standard practice of an addiction counsellor and can be a long process. [ 86 ] The Respondent had reported a past history of illicit drug use, domestic violence and childhood abuse. The Respondent did not discuss her history of child welfare proceedings in Ontario or her history of prostitution. [ 87 ] Based upon the Respondent’s self-reporting, Ms. Beaton was of the opinion that the Respondent had not used illicit drugs since July 2012 and had not used marijuana since the late Fall of 2013. Ms.

Beaton understood that the Respondent was currently not abusing or taking any substance other than Tylenol 1 for her severe dental pain. [ 88 ] Ms. Beaton was of the opinion that the Respondent was very open to receiving help and was very sincere in wanting to never use drugs again. [ 89 ] During her five (5) meetings with the Respondent, Ms. Beaton was impressed by the Respondent’s level of engagement, commitment and focus. G.H. [ 90 ] G.H. is currently the partner of the Respondent and they have been together as a couple since October 2013.

They met in […] while both were working with the […]. [ 91 ] G.H. and the Respondent moved to Cape Breton, December 17 th , 2013. He testified he has his own place but is always at the Respondent’s residence. [ 92 ] The Respondent recently gave birth to a new son and G.H. is the biological father. Prior to knowing that the Respondent was pregnant with his child, G.H. acknowledged that there was a plan in place whereby the Respondent agreed to be a “surrogate mother” for J.M. and C.

M., a couple who had befriended them in December, 2013 and who themselves could not have children. [ 93 ] Upon learning that the Respondent was pregnant, she and G.H. then agreed to have the J.M. and C.M. adopt their baby. This plan has since changed and G.H. and the Respondent are intent on keeping and raising their new baby [who is currently in the temporary care of the Minister]. [ 94 ] G.H. testified that he is supportive of the Respondent. He does not judge her for her past.

He states he is protective of the Respondent but is not possessive of her. [ 95 ] G.H. testified that he is a social drinker and may have one (1) or two (2) beer per week. He testified he no longer has “poker night” at the Respondent’s residence. [ 96 ] G.H. acknowledged he used cocaine the end of 2013 and now smokes marijuana on a casual basis only and has not done so the

last two (2) months. [ 97 ] G.H. intends to seek out counselling and, in particular, will be seeing Dr. Christians on October 23, 2014. He testified that he wants to talk about dealing with his emotions, i.e. “get into stuff that happened in my life”. [ 98 ] G.H. testified that he has a good relationship with the Respondent. There is no physical violence between them and when there is an issue they now talk things out. J.M. [ 99 ] J.M. is a […] and is forty-two (42) years of age. Her husband, C.M., does not work and is fifty-one (51) years of age. J.M. and C.M. have no children of their own. [ 100 ] Mrs.

M. knew D.R., the Respondent’s late husband, from earlier days in […], Nova Scotia. After learning of Mr. R.’s death, Mrs. M. contacted the Respondent to express her sympathies and they subsequently became friends. [ 101 ] When the Respondent offered to “carry a child” for J.M., Mr. and Mrs. M. agreed. Several attempts at artificial insemination in the M.’s basement failed. [ 102 ] When the Respondent learned that she was pregnant, she and the M’s agreed to have J.M. and C.M. become the adoptive parents.

A lawyer was retained to assist with a private adoption. [ 103 ] On July 18, 2014, the Respondent advised the M’s that there was a change in plans and that the Respondent and G.H. planned to keep their baby. [ 104 ] In spite of this decision by the Respondent, Mrs. M. still remained supportive of the Respondent. When it was suggested to Mrs. M. that the Respondent had referred to her as “psycho”, was abusive to […] and was “intimidating and threatening”, Mrs. M. testified: This is crazy. [ 105 ] At the close of her testimony, Mrs. M. was uncertain whether or not she would remain friends with the Respondent.

Ainslie Elgebeily [ 106 ] Ms. Elgebeily has been a Child Protection Social Worker with the Department of Community Services for seven (7) years. She became involved in the Respondent’s file in August 2012 as the result of a referral from Cst. Dwight Miller of the Cape Breton Regional Police. [ 107 ] Initially, when the Respondent was still living with D.R., the couple had no interest in attending Addiction Services and refused to cooperate with hair testing. [ 108 ] The Minister was concerned about drug use and domestic violence.

The Respondent had disclosed that she used cocaine during the first trimester of her pregnancy. [ 109 ] After the death of D.R., due to an accidental drug overdose in April 2013, the Respondent became more committed to the Minister’s Plan of Care. She was prepared to participate in counselling, attend Outreach and Addiction Services Programs, work with a support worker and consent to hair follicle testing. [ 110 ] In discussing the plan with the Respondent on April 24, 2013, Ms. Elgebeily explained the importance of the Respondent being honest about her issues.

The Respondent indicated that she was clean of drugs since April 2012, other than prescribed drugs of Tylenol, Clorazepam and Ritalin. [ 111 ] On May 30, 2013, the Respondent left a voice mail with Ms. Elgebeily explaining that she was not in a good place at this time and was having suicidal thoughts. Ms. Elgebeily followed up the next day and found the Respondent to be okay during A.U.’s access visit. In July 2013, there was some discussion that the Respondent may move back to Ontario as she had no support in Nova Scotia.

The Minister agreed to look into a possible placement of A.U. with the Respondent’s cousin in Ontario, K.W. Without knowing the result of this inquiry, the Respondent moved back to Ontario. [ 112 ] On August 20, 2013, the Minister was advised that the Ontario Child Welfare Agency did not support the placement of A.U. with K.W. The Respondent was now in Ontario working with […]. She did not contact Ms. Elgebeily until September, 2013 at which time the Respondent advised she would return to Nova Scotia on October 14, 2013. Ms.

Elgebeily advised the Respondent that the Ontario placement was no longer an option. [ 113 ] The Respondent did not return to Nova Scotia on October 14, 2013 and was not engaging in services. She contacted Ms. Elgebeily on November 15, 2013 and was angry about the expectation that she attend the November 19, 2013 court date. [ 114 ] Ms. Elgebeily testified that the Respondent was conflicted about where she needed to be at this time. Ms.

Elgebeily advised the Respondent of her concern that the statutory timeline in this matter would expire in July 2014 and that at this point in time, the Respondent had not yet engaged in any services and had not seen her daughter for five (5) months. Ms. Elgebeily advised the Respondent that based upon these concerns, the Minister was now seeking permanent care of A.U. [ 115 ] The Respondent arrived back in Cape Breton on December 17, 2013 immediately demanding to have access with her daughter.

The Respondent also requested that J.M. be approved as a foster placement which the Minister did not support. [ 116 ] By January 3, 2014, efforts were in place to assist the Respondent with services. The Respondent and her partner, G.H., were

temporarily residing with J.M. and C. M. [ 117 ] Ms. Elgebeily met with the Respondent on January 10, 2014 to confirm appointments were made with both the Outreach and Addiction Services Programs. Ms. Elgebeily found the Respondent to be well groomed and “looked healthier”. [ 118 ] The Respondent denied that she was pregnant and advised that she looked healthier because she was no longer using drugs. [ 119 ] The Respondent agreed to drug/hair testing, however, advised Ms. Elgebeily that she was taking Tylenol 1 and smoking marijuana to alleviate the dental pain.

The Respondent indicated that she stopped smoking marijuana in December, 2013. [ 120 ] By February, 2014, the Respondent was engaging in all services, including some self-referral programming. At this time, the Respondent acknowledged that she was pregnant and the plan was to have the M’s adopt the new baby. Ms. Elgebeily testified that the Respondent said that she did not want the baby; that her partner was not prepared or ready to have a child and that she was experiencing pressure from Mrs. M. to give up the baby. Ms.

Elgebeily also learned of the earlier plan to artificially inseminate the Respondent so as to provide a child to J.M. and C.M. [ 121 ] On February 24, 2014, the Respondent confirmed with Ms. Elgebeily that she did not want the baby and was unhappy with the plan to give the child to Mrs. M., said plan being attributed to her partner, G.H. [ 122 ] Ms. Elgebeily had additional contact with the Respondent on March 24 th , 2014, at which time the Respondent presented certificates she had earned. Ms.

Elgebeily viewed these as helpful, but stressed with the Respondent the importance of focusing on the recommended services of the Minister. [ 123 ] Ms. Elgebeily continued to meet with the Respondent from April to July 15 th and 16 th , 2014. At the July meeting, the Respondent indicated she considered Mrs. M. to be one of her supports, but stated she was upset with Mrs. M. and was having difficulty trusting her. She said she felt pressured by Mrs. M. but did not want to lose her friendship. The Respondent stated that Mrs. M. threatened to take her to court if she did not go through with the adoption plan.

The Respondent referred to Mrs. M. as a “psycho” and disclosed that the M’s were abusive to […]. The Respondent stated to Ms. Elgebeily that Mrs. M. should never be given care of a child. [ 124 ] Ms. Elgebeily continued to testify that the Respondent had stated that her partner was insecure about her past and complained that G.H. was controlling. The Respondent told Ms. Elgebeily that G.H. was both verbally and emotionally abusive, and generally disrespectful. Ms. Elgebeily testified that the Respondent subsequently attempted to qualify some of her comments about G.H. [ 125 ] Ms.

Elgebeily testified that initially the Minister’s concerns were that of substance abuse and domestic violence. She now sees the Respondent more as a mental health concern which, in Ms. Elgebeily’s opinion, will take some time to resolve. [ 126 ] Under cross-examination, Ms. Elgebeily acknowledged that since her return from Ontario, the Respondent has cooperated fully with the Minister and that there “has been a significant change for the better”.

She testified that the Respondent has gained good insight into her parenting issues and is very committed. [ 127 ] Regarding the Respondent’s plan with the M’s to adopt the baby, Ms. Elgebeily further acknowledged that there was no evidence it was a sinister plan to “snatch a baby”. Ms. Elgebeily referenced the fact that the parties had consulted a lawyer with a view to proceeding by way of private adoption. [ 128 ] Nonetheless, Ms.

Elgebeily expressed concern about the willingness of the Respondent to assist the M’s with initially artificial insemination and then later, upon learning she was pregnant, with adoption. Ms. Elgebeily testified this conduct has amplified her concerns about the Respondent’s mental health, especially when one considered the evidence of the past year for the Respondent, which included, death of her partner, unstable relationship with one J.M., use of drugs, bad influences at […], moving around and concerns about her current partner, G.H. [ 129 ] Ms.

Elgebeily testified that currently the Respondent is “putting into practice” the things she is learning from services and programming. The Reports from Mr. Gareri, Addiction Services and Transition House in terms of the Respondent’s progress are all very good. Ms. Elgebeily, nonetheless, testified: …If there was a major change we could have reconsidered our position…we feel Ms. U. needs more time to address her issues before entrusting childcare to her…there was a lot of available time wasted and her current progress is good but in early stages…more really needs to happen. [ 130 ] In addition, Ms.

Elgebeily testified there is work to be done with G.H., who has yet to engage in services and programs. [ 131 ] Ms. Elgebeily concluded her evidence by testifying that it would be a risk to place the child, A.U., in the “uncertain environment” of the Respondent. Donna Mikkelson [ 132 ] Ms. Mikkelson has been a Child and Case Worker for eight (8) years and overall has worked in the protection field for fourteen (14) years. [ 133 ] Ms. Mikkelson testified that the child, A.U., is a “happy, healthy and very active” baby.

The child is making progress, but not without her challenges, both physically and developmentally. [ 134 ] Ms. Mikkelson confirmed the Minister’s plan for A.U. is one of permanent care with no access since access would impede the adoption process. The adoption process will help the child settle more; to achieve permanency; and move on with her life with her new adoptive parents.

Dr. Neil Christians [ 135 ] Dr. Christians was qualified to give expert evidence in the field of general psychiatry (see Exhibit #10 ). He has practiced psychiatry for twenty-eight (28) years and first met with the Respondent on July 25, 2012 as a crisis admission. He subsequently saw the Respondent on March 20, 2013; April 4, 2013; April 5, 2013; April 18, 2013; April 26, 2013; June 2, 2014; July 7, 2014; August 18, 2014; September 16, 2014; and October 6, 2014. During the course of his evidence, Dr. Christians referenced Exhibit(s) #11, 12, 13, 14(

a) and 14(b) . [ 136 ] Dr. Christian testified that the Respondent has had a history of depression, anxiety and attempted suicide, but has no suicidal thoughts at this time. He testified that her child was taken into care due to concerns about substance abuse and domestic violence. [ 137 ] Upon the death of her husband, D.R., in April 2013, the Respondent was “acutely distressed” and as a result was referred to counselling by Dr. Christians. [ 138 ] Although Dr.

Christians was supportive of the Respondent moving back to Ontario where she had more support, the decision to leave by the Respondent was not discussed with the doctor. As a result, he did not see the Respondent again until June 2, 2014. In his report dated July 22, 2014, ( Exhibit #12 ), Dr.

Christians stated at page 4: She is still struggling with insight concerning her mental disorders. [ 139 ] The doctor stated his “impression” at page 4 of his report as follows: The assessment is of a lady who has had an extremely difficult childhood, numerous traumatic events, has a history of co-morbid Generalized Anxiety, Social Anxiety, Attention Deficit with Mood Disorders with no clear identified type of mood disorder.

She reports substances, last being 2013, and now struggling with her mental disorders as described above. [ 140 ] The doctor states his opinion and recommendation at pages 4-5 as follows: This lady has significant undiagnosed and untreated psychiatric conditions. The undiagnosed condition would be the type of depression, whether it is Major Depression, Cyclothymia or Bipolar. This will be addressed by collecting information over a period of time and watching her mood disorder. She is presently depressed and is on Prozac (low dose) in the meanwhile just to “tie her over” during the pregnancy.

She has untreated Attention Deficit, Hyperactivity, Generalized Anxiety, Social Anxiety, as well as Cluster B Personality Traits. In other words, she has not had proper adequate psychiatric treatment at the present moment. The previous visits were usually crisis events. … I would recommend that she be followed up regularly by psychiatry to address the conditions as described above… [ 141 ] In Dr. Christians’ Report dated August 18, 2014, and marked as Exhibit #14(a) , he states: E.U. reports that she still has mood swings. She is now in the present circumstances, her relationship has his own issues [sic].

He is almost very controlling, doesn’t give her the element of freedom. Unfortunately, he is also smoking cannabis. So far the pregnancy seems to be going reasonably well. They go to court the 2nd and 3rd of September. … She is depressed with mood swings, with elements of Depression, that is down days, feeling worthless, useless, but no suicidal thoughts. [ 142 ] Exhibit #14(

b) identifies Dr. Christians report dated September 16, 2014. He states: …She is still connected with R. [G.H.] who is also coming for help here. He recognizes he has his own issues. She comes in generally pleasant, heavily pregnant; makes good eye contact and tearful when she speaks about the previous relationship with D.(R.). She still has features of Post-Traumatic Stress related to that. She still has more down days than up days and worried about the future. She is still depressed major (moderate in nature).

One is not sure how much is Bipolarity, Cyclothymia but will address it appropriately. [ 143 ] And, Dr. Christians’ final written report is dated October 5, 2014 and marked Exhibit #13 . (The Respondent has since given birth.) …She comes over as pleasant, interactive, emotionally responsive, not significantly depressed, almost frustration which is understandable especially with what she is going through at the present moment. She is clearly overwhelmed with what is actually happening. In some ways she is fighting for the lives of the children… [ 144 ] Dr.

Christians testified that the Respondent is now compliant with her medications and appointments. She is “fully engaged” and the doctor has seen a change in the Respondent. She is learning more about the conditions and has more direction and purpose in her life. [ 145 ] Dr. Christians testified that it will be 3-6 months before the Respondent can recommence her medication because she is presently

breastfeeding her newborn baby. He expects continued treatment will take 1-2 years. He testified: People can change their lives completely. Respondent’s Evidence Lisa Carr [ 146 ] Ms. Carr has been employed by the Cape Breton Place Family Resource Centre for seven and one-half (7 ½) years. She has experience in the field dating back twenty (20) years, providing parent education. [ 147 ] The Respondent has attended fourteen

(14) Parent Connection Sessions up to July 15, 2014. Ms. Carr found the Respondent to be appropriate and engaged well in the sessions. She testified: She was no different than anyone else in the group. [ 148 ] Exhibit #2 represents the Respondent’s Certificate of Participation dated May 2014, which confirms she attended fourteen (14) sessions from January 28 th to July 15, 2014 on Discipline, Nutrition, Helping Kids Cope With Stress, Dental Hygiene, Home Safety, Summer Safety, Attention Deficit Disorder, Car Seat and Booster Seat Safety and Bullying. Heather Lynn Gouthro [ 149 ] Ms.

Gouthro has worked at Transition House for twelve (12) years, the last three (3) of which she has acted as the Outreach Coordinator. She works with women on a one-on-one basis and deals with the issue of domestic violence, anger awareness and the effects of domestic violence on children. [ 150 ] The Respondent was a self-referral who first met Ms. Gouthro on January 7, 2014. The Respondent completed the Domestic Abuse Program, which included sessions on domestic violence, healthy relationships, boundaries, red flags for relationships, cycle of abuse, power and control and abusive relationships.

The sessions were conducted from January 28 - March 5, 2014. [ 151 ] Ms. Gouthro described the Respondent’s level of engagement and participation as “excellent”. Ms. Gouthro testified: …you could tell she absorbed a lot of information. …she learned a lot from this program. [ 152 ] Ms. Gouthro testified that the Respondent took the course for a second time, which demonstrated to her a high level of commitment by the Respondent. E.U., the Respondent [ 153 ] The Respondent is twenty-six (26) years of age and is the mother of five (5) children.

Three (3) of her older children reside with family as a result of child welfare proceedings in the jurisdiction of Ontario. The fourth child, A.U., is the subject of this proceeding. Her fifth child is a newborn, who was taken into care by the Minister at birth in September, 2014. [ 154 ] The Respondent had a difficult childhood, which included abuse and drug use. She experimented with marijuana at age fourteen (14) and began her heavy use of cocaine/crack cocaine at age twenty (20).

Her mother was also an addict and she had provided the Respondent with drugs. [ 155 ] The Respondent’s marriage to D.R. was one of domestic violence and continued drug abuse. It is apparent that Mr. R’s death in April, 2013, although traumatic, was the triggering factor in the Respondent’s decision to change her life around in a dramatic way.

The Respondent testified that she has been drug free since July 2013, except for some marijuana use in October 2013. [ 156 ] The Respondent testified that she now has a “brighter outlook” on life and realizes how much she has going for her without drugs and violence in her life.

Since her return to Cape Breton on December 17, 2013, the Respondent has immersed herself in services and programs, some recommended by the Minister and others by way of self-referral (see Exhibit #16 ). [ 157 ] The Respondent testified: Now I look forward to services…I use to dread it. [ 158 ] The Respondent believes she now has a “very strong” support network which she did not have previously. [ 159 ] The Respondent testified that she feels she can be a capable parent and there should be no concerns about placing A.U. in her care.

She testified: …I came back because of A.U. …That little girl has changed my life a lot. …Not a day goes by I don’t think about her. [ 160 ] Under cross-examination, the Respondent acknowledged her past history of child neglect, domestic violence, drug abuse, attempted suicide and prostitution. She made no effort to condone what she did and admitted it was a mistake and that she exercised bad judgment.

[ 161 ] When questioned about the arrangements made with the M’s regarding artificial insemination and adoption, the Respondent testified: I thought at the time it was a good idea. [ 162 ] The Respondent did not specifically recall conversations with Ms. Elgebeily and Ms. McCormick, but did not dispute that she referred to Mrs. M. as “psycho” and “crazy”. The Respondent agreed that she had said some terrible things about Mrs. M. She testified: I did and I’m truly, truly sorry. [ 163 ] Regarding her current partner, G.H., it was suggested to the Respondent that he was verbally and emotionally abusive.

The Respondent testified: …We are working on that. …We are getting better at this. [ 164 ] The Respondent was finally questioned about her mental wellness. She testified: I do admit there are some issues I have to work on.

Minister’s Submissions [ 165 ] The Minister submits, as noted in their Post-Hearing Submissions dated November 24, 2014, as follows: * That the burden of proof upon the Minister is upon a balance of probabilities; * That the evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test; * That at a Status Review Hearing, it is not the Court’s function to retry the original protection finding, but rather, the Court must determine whether the child continues to be in need of protective services; * That in reaching a decision regarding the future care of the child, the Court must be guided by the child’s best interest. * That the decision by the Court, with agreement of counsel, to exceed the statutory timeline of July 19, 2014, was necessary to complete the evidence and in the best interests of the child. * That the Respondent was encouraged by the Minister to engage in services with Addiction Counselling and Mental Health Services. * That the Respondent had minimal engagement with these services and had initially reported she was drug free since July 2012, which is not consistent with the expert evidence of Mr.

Joe Gareri. * That the obligation of the Minister to provide reasonable services is not without limit. * That the Minister took reasonable measures to provide services to the Respondent which meets its obligation under s. 13(1) of the Legislation. * That the Respondent left the province in July, 2013 and did not return until December, 2013, during which time she had no access with the child, A.U. * That the Respondent did not engage in services until January, 2014, but all reports are positive with regard to her efforts to address her issues and addictions. * That the protection concerns of the Minister are domestic violence, substance abuse and mental health concerns. * That the Respondent has a history of involvement with child welfare authority dating back to 2007 and 2011. * That the Respondent’s three (3) older children were apprehended at birth in Ontario for similar concerns regarding domestic violence and drug use, which resulted in permanent care placements. * That the Respondent now acknowledges her past history of domestic violence and drug use. * That the Respondent further acknowledges that her relationship with D.R., the father of A.U., was also drug and violence based. * That the Respondent’s subsequent relationship, after D.R.’s death, with J.M., from July – September, 2013, again placed her in an environment of domestic violence and drug use. * That in July, 2014, the Respondent reported concerns about her current partner, G.H., citing examples of verbal and emotional abuse. * That the Respondent now reports her relationship with G.H. has improved, but this is not consistent with the evidence of Dr.

Christians, who testified the Respondent referred to G.H. as being “controlling” as late as August, 2014. * That the Respondent has a history of failed relationships and the Minister has concerns about the stability of her relationship with G.H.

* That it appears that the Respondent does not yet have the ability to identify the healthy and unhealthy aspect of her relationships. * That the Respondent does not show an appropriate understanding of her addiction issues and has not completed the services outlined in her treatment plan at the time of trial. * That domestic violence has been a recurrent problem throughout the Respondent’s involvement with child protection agencies. * That the Respondent’s mental health concerns still remain unaddressed. * That Dr.

Christians testified the Respondent had significant undiagnosed and untreated psychiatric condition. * That Dr. Christians testified it may take six (6) months to clarify the Respondent’s current diagnosis and determine the appropriate treatment plan. * That Dr.

Christians has, as yet, an incomplete picture of the Respondent’s mental health situation and the risks that this may pose to a child in her care. * That the Respondent has been dishonest with her treating physician, medical staff and service providers with regard to her use of drugs, relationships and mental health issues. * That the Respondent has shown no capacity to act in a manner that she could be trusted to ensure the child’s physical, mental and emotional needs are being met. * That risk of physical and emotional harm from the Respondent’s issues of domestic violence, drug use and mental health concerns continues to be a real and present risk for a child in the Respondent’s care at the present time. * That the outstanding protection concerns remain unchanged and, until addressed, relapse into addictions and domestic violence remains a palpable risk. * That it is acknowledged the Respondent’s level of engagement in services since January 2014 has been excellent and that significant progress has been made to date, particularly, with the risk associated with the Respondent’s drug use. * That the Respondent, nonetheless, still requires more services and treatment to successfully reduce or eliminate the Minister’s risk concerns. * That the Minister’s concerns are unlikely to change with a reasonably foreseeable time. * That the child, A.U., remains in need of protective services. * That this proceeding has reached the end of the available time pursuant to the legislation and a permanent placement for A.U. in a family setting is necessary to provide stability in the child’s life. * That it is in A.U.’s best interest to be placed in the permanent care and custody of the Minister for the purposes of adoption, with no provision for access.

Respondent’s Submissions [ 166 ] The Respondent submits in the post hearing submissions dated December 12, 2014, as follows: * That Ms. U. successfully made all of the changes and completed all of the services requested of her by the Minister. * That ongoing treatment does not make Ms. U. a risk to parent her child. * That there is no evidence that Ms. U. cannot look after A.U., despite having anxiety and moderate depression. * That the submission of the Minister that Ms. U. was diagnosed with borderline personality is not accurate and should be disregarded by the Court. * That Ms.

U. has given up her addiction to drugs and, in particular, her addiction to cocaine. * That Ms. U. has successfully completed all services requested by the Minister, she has a loving bond with her daughter, she has suitable living arrangements and she has learned to find community support with parenting. * That since Ms. U’s return to Nova Scotia in December 2013, the evidence is she was committed and focused during sessions with Addiction Services. * That Ms. U’s participation in counselling for domestic violence was excellent. * That Ms. U. made good efforts to get to see Dr.

Christians. * That systemic delays in acquiring mental health treatment are not the fault of Ms. U. * That Ms. U. is now participating in her treatment plan. * That the Minister’s desire to have Ms. U. undertake treatment for a longer period of time is not sufficient reason to place the child in the permanent care of the government.

* That Dr. Christians testified that Ms. U. is not a risk to herself or any other person. * That Dr. Christians testified that Ms. U. was showing insight into her condition and that she was fully engaged and that heexpected her to continue on that path. * That the Minister dragged its feet providing any services when Ms. U. returned from Ontario. * That Ms. U. sought services on her own initiative and was very committed to same. * That it is not logical for the Minister to argue that Ms.

U. has to complete more counselling before her child can be returned. * That the Minister does not give enough weight to the fact Ms. U. has overcome her addiction, and this, along with her commitmentto be a good parent to her daughter, and her commitment to mental health services, has led to a sufficient reduction of the risk of placingthe child in her care. * That Ms. U., in spite of the gap in time from July to December, 2013, made the changes required and sufficiently reduced the riskto have A.U. placed in her care. * That Ms. U. was a sincere and truthful witness. * That the Court can be satisfied that Ms.

U. has sufficiently reduced the risk of having A.U. placed in her care. * That the Court should give no weight to the artificial insemination story because there was no maliciousness intended. * That the Minister has not made out a case for permanent care. * That the Minister has not discharged the heavy burden upon it. * That the child, A.U., should be returned to Ms. U.’s care. * In the alternative, should the court award permanent care, access should continue until the time of any adoption.

The Law Burden of Proof [167] The burden of proof is on a balance of probabilities, which is not heightened or raised because of the nature of the proceeding. Inthe case of F.H. v. McDougall, 2008 SCC 53 , [2008] 3 S.C.R. 41, the Supreme Court of Canada held at paragraph 40: Like the House of Lords, I think it is time to say, once and for all in Canada there is only one civil standard of proof at commonlaw and that is proof on a balance of probabilities.

Of course, context is all important and a judge should not be unmindful,where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences. However,these considerations do not change the standard of proof. [168] And further at paragraph 45 and 46: 45. To suggest that depending upon the seriousness, the evidence in the civil case must be scrutinized with greater care impliesthat in less serious cases the evidence need not be scrutinized with such care.

I think it is inappropriate to say that there arelegally recognized different levels of scrutiny of the evidence depending upon the seriousness of the case. There is only one legalrule and that is that in all cases, evidence must be scrutinized with care by the trial judge. 46. Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. Butagain, there is no objective standard to measure sufficiency.

In serious cases, like the present, judges may be faced with evidenceof events that are alleged to have occurred many years before, where there is little other evidence than that of the plaintiff anddefendant. As difficult as the task may be, the judge must make a decision. If a responsible judge finds for the plaintiff, it mustbe accepted that the evidence was sufficiently clear, convincing and cogent to that judge That the plaintiff satisfied the balance ofprobabilities test. [169] The burden of proof is on the Minister to show that the Permanent Care and Custody Order is in the child’s best interest.

Test on Statutory Review [170] The Supreme Court of Canada set out the test to be applied on statutory Review Hearings in child protection proceedings in theCatholic Children’s Aid Society of Metropolitan Toronto v. C.M., (SCC), [1994] S.C.J. No. 37 (SCC), where theCourt held that, at a Status Review Hearing, it is not the Court’s function to retry the original protection finding, but rather the Courtmust determine whether the child continues to be in need of protective services. Writing for the majority, L’Heureux-Dube, J. stated asfollows at paragraphs 35, 36, and 37: 35.

It is clear that it is not the function of the status review hearing to retry the original need for protection order. That order isset in time and it must be assumed that it has been properly made at that time. In fact, it has been executed and the child hasbeen taken into protective by the respondent society. The question to be evaluated by courts on status review is whether there isa need for a continued order for protection... 36.

The question as to whether the grounds which prompted the original order still exist and whether the child continues to be inneed of state protection must be canvassed at the status review hearing. Since the Act provides for such review, it cannot have

been its intention that such a hearing simply be a rubber stamp of the original decision. Equal competition between parents and the Children’s Aid Society is not supported by the construction of the Ontario legislation.

Essentially, the fact that the Act has as one of its objectives the preservation of the autonomy and the integrity of the family unit and that the child protection services should operate in the least restrictive and disruptive manner, while at the same time recognizing the paramount objective of protecting the best interests of children, leads me to believe that consideration for the integrity of the family unit and the continuing need of protection of a child must be undertaken. 37. The examination that must be undertaken on a status review is a two-fold examination.

The first one is concerned with whether the child continues to be in need of protection and, as a consequence, requires a court order for his or her protection. The second is a consideration of the best interests of the child, an important and, in the final analysis, a determining element of the decision as to the need of protection. The need for continued protection may arise from the existence or the absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time.

Legislation [ 171 ] The Court must consider the requirements of the Children and Family Services Act , S.N.S. 1990, c. 5 in reaching its conclusion. I have considered the

preamble which states: AND WHEREAS children are entitled to protection from abuse and neglect; AND WHEREAS parents or guardians have responsibility for the care and supervision of their children and children should only be removed from that supervision, either partly or entirely, when all other measures are inappropriate; AND WHEREAS children have a sense of time that is different from that of adults and services provided pursuant to this Act and proceedings taken pursuant to it must respect the child’s sense of time. [ 172 ] I have also considered ss. 2(1) and 2(2) which provide: Purpose and paramount consideration 2(1) The purpose of this Act is to protect children from harm, promote the integrity of the family and assure the best interests of children. 2(2) In all proceedings and matter pursuant to this Act, the paramount consideration is the best interests of the child. [ 173 ] I have considered the relevant circumstances of s. 3(2), which provide: 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 of 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 relationship 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 view and wishes, if they can be reasonable 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. [ 174 ] I have considered the relevant provisions of s. 22, and in particular s. 22(1) and s. 22(2) (

b) of the Children and Family Services Act , which state: Child in need of protective services

22(1) In this Section, “substantial risk” means a real chance of danger that is apparent on the evidence.

(2) A child is in need of protective services where: (

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

a) states as follows: (

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. [ 175 ] In addition, the Court has reviewed and considered s. 9 and s. 13 of the Act, which respectively state: Functions of Agency 9. The functions of an agency are to: (

a) protect children from harm; (

b) work with other community and social services to prevent, alleviate and remedy the personal, social and economic conditions that might place children and families at risk; (

c) provide guidance, counselling and other services to families for the prevention of circumstances that might require intervention by an agency; (

d) investigate allegations or evidence that children may be in need of protective services; (

e) develop and provide services to families to promote the integrity of families, before and after intervention pursuant to this Act; (

f) supervise children assigned to its supervision pursuant to this Act; (

g) provide care for children in its care or care and custody pursuant to this Act; (

h) provide adoption services and place children for adoption pursuant to this Act; (

i) provide services that respect and preserve the cultural, racial and linguistic heritage of children and their families; (

j) take reasonable measures to make known in the community the services the agency provides; and (

k) perform any other duties given to the agency by this Act or the regulations, 1990, c. 5, s. 9. Services to Promote Integrity of Family 13(1) Where it appears to the Minister or an agency that services are necessary to promote the principle of using the least intrusive means of intervention and, in particular, to enable a child to remain with the child’s parent or guardian, the Minister and the agency shall take reasonable measures to provide services to families and children that promote the integrity of the family.

(2) Services to promote the integrity of the family include, but are not limited to, services provided by the agency or provided by others with the assistance of the agency for the following purposes: (

a) improving the family’s financial situation; (

b) improving the family’s housing situation; (

c) improving parenting skills; (

d) improving child-care and child-rearing capabilities; (

e) improving homemaking skills; (

f) counselling and assessment; (

g) drug or alcohol treatment and rehabilitation; (

h) childcare; (

i) mediation of disputes; (

j) self-help and empowerment of parents whose children have been, are or may be in need of protective services; (

k) such matters prescribed by the regulars. 1990, c.5, s. 13. [ 176 ] Other relevant sections include ss. 42(1) ; 42(2); 42(3); 42(4) and 45, which provide as follows: 42(1) At the conclusion of the Disposition Hearing, the court shall make one of the following orders, in the child’s best interest:

(

a) dismiss the matter; (

b) the child shall remain in or be returned to the care and custody of a parent or guardian, subject to the supervision of the agency, for a specified period, in accordance with

Section 43; (

c) the child shall remain in or be placed in the care and custody of a person other than a parent or guardian, with the consent of that other person, subject to the supervision of the agency for a specified period, in accordance with

Section 32; (

d) the child shall be placed in the temporary care and custody of the agency for a specified period, in accordance with Sections 44 and 45; (

e) the child shall be placed in the temporary care and custody of the agency pursuant to clause (

d) for a specified period and then be returned to a parent or guardian or other person pursuant to clauses (

b) or (

c) for a specified period, in accordance with Sections 43 to 45; (

f) the child shall be placed in the permanent care and custody of the agency, in accordance with

Section 47. (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.

(4) The Court shall not make an order for permanent care and custody pursuant to clause (

f) of subsection (1), unless the Court is satisfied that the circumstances justifying the order are unlikely to change within a reasonably foreseeable time not exceeding the maximum time limits, based upon the age of the child, set out in

Section 45, so that the child can be returned to the parent or guardian. Duration of orders 45

(1) Where the court has made an order for temporary care and custody, the total period of duration of all disposition orders, including any supervision orders, shall not exceed (

a) where the child was under six years of age at the time of the application commencing the proceedings, twelve months; or (

b) where the child was six years of age or more but under twelve years of age at the time of the application commencing the proceedings, eighteen months, from the date of the initial disposition order.

(2) The period of duration of an order for temporary care and custody, made pursuant to clause (

d) or (

e) of subsection (1) of

Section 42, shall not exceed (

a) where the child or youngest child that is the subject of the disposition hearing is under three years of age at the time of the application commencing the proceedings, three months; (

b) where the child or youngest child that is the subject of the disposition hearing is three years of age or more but under the age of twelve years, six months; or (

c) where the child or youngest child that is the subject of the disposition hearing is twelve years of age or more, twelve months.

(3) Where a child that is the subject of an order for temporary care and custody becomes twelve years of age, the time limits set out in subsection (1) no longer apply and clause (

c) of subsection (2) applies to any further orders for temporary care and custody. 1990, c. 5, s. 45. Analysis Issue 1 [ 177 ] Whether or not the Court has the jurisdiction to exceed the statutory timelines as prescribed in s. 45(1)? [ 178 ] In Nova Scotia (Minister of Community Services) v. L.L.P . [2003] N.S.J. No. 1 (C.A.), at paragraphs 24 and 25 , the Nova Scotia Court of Appeal has stated as follows with respect to the legislative time limits: 24 The maximum statutory time limits for a proceeding are set out in

section 45 of the Act: twelve months for children under

six years of age and eighteen months for those between six and twelve years. At the end of these periods a court must eitherdismiss the proceeding or order permanent care and custody.

The time frames within which the proceeding must be resolved arenecessarily short in deference to the "child's sense of time", as is recognized in the recitals to the Act: AND WHEREAS children have a sense of time that is different from that of adults and services provided pursuant to this Actand proceedings taken pursuant to it must respect the child's sense of time; 25 The goal of "services" is not to address the parents deficiencies in isolation, but to serve the children's needs by equippingthe parents to fulfill their role in order that the family remain intact.

Any service-based measure intended to preserve or reunitethe family unit, must be one which can effect acceptable change within the limited time permitted by the Act. If a stable and safelevel of parental functioning has not been achieved by the time of final disposition, before returning the children to the parents,the court should generally be satisfied that the parents will voluntarily continue with such services or other arrangements as arenecessary for the continued protection of the children, beyond the end of the proceeding. Ultimately, parents must assumeresponsibility for parenting their children.

The Act does not contemplate that the Agency shore up the family indefinitely. [179] The extensive evidence in these proceedings necessarily required the Court to consider exceeding the statutory time limes asdefined by the Children and Family Services Act. [180] As a result, the Court found, with the consent of the parties, that it was in the best interests of the child, A.U., to exceed thestatutory time lines to afford the necessary time for the Respondent, E.U. to present all relevant evidence so as to permit the Court tofairly and properly adjudicate upon the matter. [181] In the case of D.G. v.

Family and Children Services of Lunenburg County and T.M.C. and C.L.G. [2006] N.S.J. No. 432, Justice Oland stated at paragraph 17, as follows: 17 However, the law is clear that exceeding that time limit does not always constitute an error of law. In Children's Aid Societyof Cape Breton-Victoria v. A.M., [2005] N.S.J. No. 132, 2005 NSCA 58, in seeking to overturn an order placing her children inpermanent care, the appellant parent argued first, that the judge had no jurisdiction to make a permanent care order once the s.45(1)(

a) time limits had been reached, and second, if the judge had discretion to extend the time, he erred in doing so because hefailed to consider whether the extension was in the best interests of the children. Cromwell, J.A. for this court stated: [28] Turning to the first submission, there was no loss of jurisdiction here. The Court made this clear in Nova Scotia (Minister ofCommunity Services) v. B.F. (2003), 2003 NSCA 119 , 219 N.S.R. (2d) 41 (C.A.); [2003] N.S.J. No. 405 (Q.L.) (C.A.) atparas. 57 and 58 and The Children's Aid Society and Family Services of Colchester County v.

H.W. (1996), (NS CA), 155 N.S.R. (2d) 334 (C.A.). The Act contemplates that there will be a judicial determination of the child's best interests.If a time limit, which is a milestone toward that determi

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