Nova Scotia (Community Services) v. A.W., 2014 NSSC 393

Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: Nova Scotia (Community Services) v. A.W. , 2014 NSSC 393 Date: 20141029 Docket: SFSNCFSA85541 Registry: Sydney, NS Between: Minister of Community Services Applicant v.a A.W. and S.L. Respondents 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: September 11 th , 2014 and September 12 th , 2014 in Sydney, Nova Scotia Final Written Submissions: October 2, 2014 Written Decision: October 29, 2014

Subject:

Summary: Issues: Result: Cases: Permanent Care * The Applicant seeks a Permanent Care Order with no provision for access for the Respondent’sdaughter. * The Respondent had ongoing drug issues and had not successfully engaged in services with theMinister. * 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) G.S. v. Nova Scotia (Minister of Community Services), [2006] N.S.J. No. 52 (NSCA) Nova Scotia (Minister of Community Services) v. L.L.P., [2003] N.S.J. No. 1 (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. A.W., 2014 NSSC 393 Date: 20141029 Docket: SFSNCFSA85541 Registry: Sydney, NS Between: Minister of Community Services Applicant v. A.W. and S.L. Respondents 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 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. Editorial Notice: Identifying information has been removed from this electronic version of the judgment. Judge: The Honourable Justice Kenneth C.

Haley Heard: September 11 th , 2014 & September 12 th , 2014 Sydney, Nova Scotia Written Release: October 29, 2014 Counsel: Danielle Morrison, Counsel for the Applicant Alan Stanwick, Counsel for the Respondent, A.W. 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, H.W., born February […], 2012, be placed in the permanent care of the Minister with no provision for access. [ 2 ] The Respondent, A.W., is the biological mother of the child. She opposes the application, and seeks the return of the child, H.W. to her care. [ 3 ] The history of the file is as follows: March 28, 2013 - Apprehension [ 4 ] The child, H.W. was taken into care by the Minister.

April 8, 2013 – Interim Hearing (5-Day), pursuant to s. 39 [ 5 ] The child was placed in the interim care and custody of the Minister with supervised access to the Respondent, A.W. [ 6 ] The matter was adjourned for completion of the s. 39, Interim Hearing phase, and to afford the Respondent the opportunity to retain counsel. April 26, 2013 – Completion of s. 39, Interim Hearing [ 7 ] Status quo to continue with supervised access to A.W. [ 8 ] Matter adjourned for Protection Hearing. June 27, 2013 – Protection Hearing [ 9 ] The child, H.W., was found to be in need of protective services, pursuant to s. 22(2)(

b) of the CFSA. [ 10 ] Status quo to continue, with supervised access to A.W. [ 11 ] The Respondent has agreed to engage in services. September 16, 2013 – Disposition Hearing [ 12 ] Status quo to continue, with supervised access to A.W. [ 13 ] The biological father, S.L., appeared, requesting the opportunity to retain counsel and present a Plan of Care. [ 14 ] All parties agreed to add S.L. as a party to the proceedings, once he obtained counsel and made an application in this regard. November 27, 2013 – Disposition Review Hearing

[ 15 ] Mr. Peter Forgeron requested (and was granted) permission to be removed as solicitor of record for the Respondent, A.W. [ 16 ] S.L. had not yet retained counsel and was advised to do so. [ 17 ] Status quo to continue, with supervised access to the Respondent, A.W. February 18, 2014 – Disposition Review Hearing [ 18 ] Neither A.W. nor S.L. appeared in court on this date. [ 19 ] Proof of service on A.W. was confirmed by the Court. [ 20 ] S.L. had taken no action to formally become involved in the proceeding. [ 21 ] Status quo to continue with supervised access to A.W.

May 14, 2014 – Disposition Review Hearing [ 22 ] Neither A.W. nor S.L. appeared in Court on this date. [ 23 ] Proof of service was confirmed by the Court. [ 24 ] Minister advised of its’ intention to seek permanent care of H.W. [ 25 ] The statutory deadline was September 16, 2014. [ 26 ] Court declined to set permanent care dates until the Respondent(

s) had an opportunity to be present with counsel. [ 27 ] Adjourned “setting down” to June 12, 2014. Parties were to be personally served. [ 28 ] Status quo to continue with supervised access to the Respondent, A.W.

June 12, 2014 – Disposition Review Hearing [ 29 ] A.W. appeared this date with counsel. [ 30 ] S.L. appeared this date without counsel. [ 31 ] Permanent Care Hearing dates scheduled for September 11 & 12, 2014. [ 32 ] All parties were advised by the Court to be prepared to proceed on these dates. [ 33 ] Status quo to continue with supervised access to A.W. [ 34 ] The matter proceeded to Final Hearing on September 11, 2014. S.L. was not present and had not filed any documentation in support of his Plan of Care.

It was appropriate to proceed in his absence. [ 35 ] The Minister called the following witnesses and evidence: • Wendy Clarke - Addiction Services – Records. “Exhibit #1” – Hospital Chart of Respondent, A.W. - tendered into evidence. • Diane Degault - Access Facilitator. “Exhibit #2” – Access Notes of the witness - tendered into evidence. • Melissa Nearing - Child Care Worker • Amy Donovan - Long-Term Protection Worker. “Exhibit #3” – Book of Pleadings - tendered into evidence.

Exhibit #3 contained the following: TAB PLEADING 1 Notice of Child Protection Application and Affidavit of Marcie Aucoin, dated, signed, sworn to, and filed with the Court on the 4 th day of April, 2013. 2 Interim Order, rendered on the 8 th day of April, 2013, and issued on the 26 th of April, 2013.

3 Interim Order, rendered on the 26 th day of April, 2013, and issued on the 10 th day of June, 2013. 4 Affidavit of Marcie Aucoin, signed, sworn to, and filed with the Court on the 21 st day of June, 2013. 5 Protection Order, rendered on the 27 th day of June, 2013, and issued on the 17 th day of September, 2013. 6 Notice of Motion, Affidavit, and Agency Plan for the Child’s Care, dated, signed and sworn to on the 9 th day of September, 2013, and issued on the 10 th day of September, 2013. 7 Notice of Motion and Affidavit of Amy Donovan, dated, signed, sworn to, and filed with the Court on the 20 th day of November, 2013. 8 Temporary Care and Custody Order, rendered on the 27 th day of November, 2013, and issued on the 8 th day of January, 2014. 9 Notice of Motion and Affidavit of Amy Donovan, dated, signed, sworn to, and filed with the Court on the 13 th day of February, 2014. 10 Temporary Care and Custody Order, rendered on the 18 th day of February, 2014, and issued on the 21 st day of February, 2014. 11 Notice of Motion, Affidavit of Amy Donovan, and Agency Plan for the Child’s Care, dated, signed and sworn to on the 6 th day of May, 2014, and filed with Court on the 7 th day of May, 2014. 12 Temporary Care and Custody Order, rendered on the 14 th day of May, 2014, and issued on the 30 th day of May, 2014. 13 Temporary Care and Custody Order, rendered on the 12 th day of June, 2014, and issued on the 4 th day of July, 2014. • Alana Brown – Clinical Therapist, Addiction Services [ 36 ] On September 12, 2014, counsel for the Respondent called as witnesses:

(1) B.R. , friend of the Respondent; and,

(2) A.W. , the Respondent. Exhibit #4 – Record of Conviction - tendered into evidence. [ 37 ] At the close of evidence, the matter was adjourned for written submissions. Minister’s Evidence [ 38 ] Diane Degault was responsible to oversee and supervise access visits between the Respondent and her infant daughter. [ 39 ] Ms. Degault testified that, in general, access was “wonderful”. The Respondent interacted well with her daughter and was very affectionate, interested and supportive. [ 40 ] The difficulty with access was the maintenance of continuity of the visits.

A number of missed and/or cancelled visits ultimately resulted in access being suspended from September 2013 through to October 2013, and again in March 2014 through to June 26, 2014. [ 41 ] The Respondent last visited with her daughter September 4, 2014, at which time the Respondent stated that she “was stressed and it may be her last visit”. [ 42 ] Ms. Degault did confirm on cross-examination that despite the interruption(

s) in access, it did not negatively affect the positive relationship between mother and child.

[ 43 ] Melissa Nearing is employed with the Department of Community Services as a Temporary Child Care Worker. She has in excess of thirteen (13) years of service in the child protection field. [ 44 ] Ms. Nearing’s role was to work with the child and the foster parents in terms of a Case Plan. [ 45 ] Ms. Nearing testified that the child was doing “extremely well” in the foster home during the eighteen (18) month placement. The child, H.W., is now two and one-half (2 ½) years old. [ 46 ] The Minister’s plan is for the child to be placed into permanent care, with no provision for access.

The prospects for adoption, according to the witness, were “very, very good”. [ 47 ] The rationale for providing no access would be to achieve permanency for the child in the adoptive home. [ 48 ] Amy Donovan also has extensive experience in the child protection field and has been the Long-Term Protection Worker in this case and has been involved in this file since February, 2012, upon receiving a referral from the Respondent’s family doctor. [ 49 ] The Respondent was reported to be using cocaine and benzodiazepines during the pregnancy and, at birth, the baby was addicted, hence resulting in the referral. [ 50 ] At the time of the baby’s release from hospital in March 2012, the Minister’s Case Plan was to permit the Respondent to maintain custody of the baby under the supervision of the Respondent’s father.

There was no apprehension at this time. [ 51 ] In March, 2013, the Minister had received numerous referrals regarding drug use by the Respondent.

The Respondent had tested positive for cocaine and was arrested for shoplifting. [ 52 ] The child was taken into care as a result of a referral from Transition House, where the Respondent was now staying. [ 53 ] Transition House sources also reported having found a “joint” in the Respondent’s room and that she had injected “Ritalin”. [ 54 ] The child was taken into care at this time and placed in foster care with supervised access afforded to the Respondent. [ 55 ] The Minister expected the Respondent to engage in services; abstain from alcohol and drugs, other than those prescribed; and, to have no contact with the biological father, S.L., who had declined to cooperate with services and drug testing. [ 56 ] S.L. had a lengthy history of criminal involvement and drug use and had only one (1) contact with the child while he was incarcerated.

Since his release in July 2013, S.L. has not exercised access or participated in child care. [ 57 ] Up to September 4, 2014, the Respondent denied being in a relationship with S.L., but on this date admitted to the witness that she was, in fact, living with S.L. [ 58 ] The Respondent acknowledged on September 4, 2014, that she was aware that S.L. could not be in her life “if she wanted H.W. returned to her care”. [ 59 ] Ms. Donovan referenced the first Plan of Care, dated September 10, 2013, found in Exhibit #3 at Tab 6. The Respondent’s goals were listed #1-6 as follows: Ms. W. 1. Ms.

W. will consistently attend all scheduled appointments and remain in regular contact with her caseworker and other involved professionals, providing essential information in a timely fashion and follow through with all reasonable requests, inquiries, directions and recommendations of involved professionals. 2. Ms. W. will maintain an appropriate and stable residence. 3. Ms. W. will comply with hair testing and/or urine testing for the purposes of drug screening. 4. Ms. W. will refrain from the abuse of non-medically prescribed drugs and the abuse of alcohol. 5. Ms.

W. will continue with services at Addiction Services and Adult Mental Health and for an assessment and follow through with any recommended treatments. 6. Ms. W. refrain from involvement in criminal activities. [ 60 ] The Respondent was not fulfilling the expectations in this regard.

With the knowledge that the Respondent was still living with S.L.; was still using marijuana at least once a week; and, had served sixty (60) days (intermittent) in the local Correctional Facility for a conviction of shoplifting, the decision was taken on April 30, 2014 to amend the Plan of Care to seek permanent care with no access. [ 61 ] In June 2014, the Respondent requested that access be reinstated and further confirmed a willingness to participate in services and submit to drug testing. [ 62 ] In August 2014, after testing positive for “cocaine and benzodiazepines”, Ms.

Donovan met with the Respondent, at which time the Respondent admitted to using “marijuana, non-prescribed benzodiazepines and rivotril”.

[ 63 ] Alanna Brown is employed by Addiction Services and has been working with the Opiate Recovery Program since February 2014. She is a Clinical Therapist who provides counselling and support to clients. [ 64 ] Ms. Brown’s first contact with the Respondent was April 8, 2014. The Respondent declined counselling and did not attend the requested bi-weekly meetings. [ 65 ] From April 8, 2014 to August 19, 2014, the Respondent provided eleven (11) urine screens out of a total of nineteen (19) that were scheduled. Eight (8) screens tested positive for cocaine and benzodiazepines.

In addition, the July 23, 2014, screen tested positive for opiates. The Respondent’s last “clear test” was May 6, 2014. [ 66 ] As she had done with Amy Donovan (the Long Term Protection Worker), the Respondent continued to deny that she was in a relationship with S.L. until September 2, 2014. [ 67 ] On that date, the Respondent acknowledged her relationship with S.L. was ongoing. In addition, Ms. Brown formed the opinion that the Respondent was impaired. [ 68 ] Ms.

Brown further testified that the Respondent was subject to the “Prescription Monitoring Program” and as a result of her failed drug tests, the pharmacy was directed to “hold dispensing” to the Respondent. [ 69 ] The positive tests for benzodiazepines was, thus, indicative of “illicit use” by the Respondent. Respondent’s Evidence [ 70 ] B.R. R. is a friend of the Respondent and has been for the last five and one-half (5 ½) years. [ 71 ] Ms.

R. was very supportive of the Respondent’s desire to have H.W. returned to A.W.’s care. [ 72 ] She testified that she had “never seen a girl who loved her child so much”. [ 73 ] Ms. R. also testified that during their time together, she has never witnessed the Respondent to be impaired. [ 74 ] A.W. , the Respondent, acknowledges that she had abused drugs since she was twenty (20) years old and that she has been in the “Methadone Maintenance Program” for six (6) years.

The Respondent is now twenty-seven (27) years of age. [ 75 ] The Respondent testified: Still to this day, I don’t, I don’t find methadone works for me and I’ve talked to addiction services about it, it’s just it doesn’t work. [ 76 ] The Respondent acknowledged that she used drugs during her pregnancy with H.W. stating that she had “one mishap of cocaine”. [ 77 ] After the baby was released from hospital, the Respondent moved to her father’s home with the baby in April 2012.

The Minister was not formally involved at this time but, nonetheless, overseeing and assessing the childcare arrangement. [ 78 ] The Respondent acknowledged she used drugs in May 2012 shortly after the baby was returned to her care. The Respondent testified: It was probably most likely cocaine. Before I had my little girl, that was my drug of choice… [ 79 ] The Respondent further testified that she smoked marijuana: Q: Okay. Did you smoke marijuana in the presence of your daughter?

A: No, no, I’ve smoked weed twice since I’ve had her, living with my father and both times I walked to my sister’s when my father was in care with my daughter.” [ 80 ] The Respondent acknowledged that on October 9, 2013, she commenced serving sixty (60) days on weekends in jail for shoplifting charges which occurred on March 3, 2013 and March 22, 2013 as per Exhibit #4. Eighteen (18) months’ probation was also a part of her sentence. At this time, the Respondent was residing at Transition House.

A referral from Transition House then reported drug use by the Respondent. [ 81 ] The Respondent denied the allegations but did admit to giving a “joint” to Transition House staff. The child, H.W., was thus formally placed in the care of the Minister on March 28, 2013. [ 82 ] In terms of the case plan put forth at the time the Respondent was required to abstain from drugs and alcohol, the Respondent testified: Q: Okay, okay, that was the first one yes, okay. Um, now did you, eh, did you follow that case plan in terms of staying away from drugs and alcohol? A: No.

Q: And why not? A: Again, there’s no excuse it was the environment I was in and around. I have no excuse for using, I have none. It was stupid. I can’t take it back, it was, there was no excuse for it. Q: Okay. A: But if H.W. was in my care this wouldn’t be, you know, there would be none. Q: There would be what? A: None, no drug use… [ 83 ] The Respondent went on to acknowledge that she took benzodiazepines and rivotril without a prescription for same. She testified: Q: Are you, are you using them (benzodiazepines) without a prescription though?

A: Right, but I am not using them to get high…they give me ambition, they keep me moving, they make me eat, you know like they help, they help me in many ways. I don’t seem to be so depressed when I am on them. [ 84 ] The Respondent then testified that she is a daily marijuana user. In terms of her need for the drug, the Respondent testified: Q: Um, now with the eh you know with the positive drug tests like cocaine and that, do you feel you have a substance abuse problem?

A: No, with marijuana, but that is easy, that is easy for me to stop, but no with cocaine, no, with opiates no, with benzodiazepines, I need them. That is why I am getting them back on Wednesday, I need them. Q: Do you feel the eh the Court should be concerned about placing H.W. in your care and custody when you have positive drug results? A: I can’t say no to that, I can’t say no obviously…. [ 85 ] The Respondent testified that if H.W. was in her care there would be no further drug use. She also testified that she would end her relationship with S.L. if she had any inkling that her daughter was coming home.

She testified: Q: Yeah, so you’re saying, are you saying to the Court that if H.W. was placed back in your care and custody there would be no risk of harm to her? A: No, most definitely. [ 86 ] In terms of a Plan of Care for H.W., the Respondent testified she did not have one: Q: So what would your, if H.W. was returned to your care, what is your plan….? A: I’ve already started job looking, I mean I know I can go back to school and keep her in day care, I would come up with a plan if I thought she was coming home. I don’t have one right now.

Minister’s Submissions [ 87 ] The Minister, by way of written submission dated September 22, 2014, submits as follows: • That the standard of proof to be applied is on a balance of probabilities; • That evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities; • That a Court, hearing a Review Application, is required by s. 46(4) to consider if circumstances have changed; if the Plan of Care is being carried out; and what is the least intrusive alternative in the child’s best interests; • That in reaching a decision regarding future care of the child, the Court must be guided by the child’s best interests; • That the Court must determine whether or not the child continues to be in need of protective services; • That the obligation of the Minister to provide services is not without limit; • That the Respondent continued to use drugs, despite the Minister’s Case Plan and admonitions, thus resulting in the taking into care on March 28, 2013; • That following the child coming into care, the Respondent tested positive for cocaine and benzodiazepine use; • That the Respondent admitted continued drug use, specifically the use of cocaine on April 5, 2014, and marijuana in March 2013; • That the Respondent admitted to all incidents of shoplifting, resulting in her subsequent conviction and incarceration; • That the Respondent failed to maintain regular contact with the Minister’s service providers and caseworker(

s) as provided for in

the Plan of Care; • That the evidence shows that the Respondent has not found a stable and appropriate residence to share with her daughter; • That there is no reason to believe that the Respondent’s intention to remove S.L. from her life, if H.W. was returned home, wouldbe realized; • That the Respondent again tested positive for cocaine and benzodiazepines in June 2014; • That frequently missed drug screening tests by the Respondent resulted in withholding of her daily methadone dose through theOpiate Recovery Program; • That the Respondent admitted to taking prescribed drugs without a prescription because she reported that she needed them; • That the Respondent admitted to illicit drug use as recently as August 22, 2014; • That Ms.

Brown testified that the Respondent appeared to be under the influence of drugs when she attended the program onSeptember 2, 2014; • That the Respondent did not actively engage in services and, as a result, the service has failed. • That the Respondent has failed to achieve an abstinence from drugs; • That the Respondent failed to regularly engage in access with the child; • That mental health concerns have not been addressed; • That (with the failure of services provided to the Respondent) risk to the child, H.W., has not been reduced; • That the Respondent has not demonstrated that she is able to control her own life to the point that H.W. will be protected from risk; • That the Respondent’s plans are entirely speculative and past history would suggest she is very unlikely to follow through; • That the child, H.W., continues to be in need of protective services; • That it is in the child’s best interest to be placed in the permanent care of the Minister, for the purpose of adoption, with noprovision for access; • That the proceeding has reached the end of the available time-line and a permanent placement for the child, in a family setting, isnecessary.

Respondent’s Submission [88] By way of written submission dated October 2, 2014, counsel for A.W. submits as follows: • That the evidence discloses that the Respondent is a loving, affectionate and attentive mother; • That the Respondent has a strong and loving bond with her daughter; • That the Respondent meets all the child’s needs – physical, emotional and psychological; • That the Respondent can be described as an “excellent” parent; • That the Respondent testified that criminal activity and substance abuse are things in her past; • That the Respondent would not place her daughter in a situation that would pose risk; • That the Respondent testified that she no longer uses drugs, is clean and is committed to being clean; • That the burden of proof is upon the Minister, who must prove on a balance of probabilities that the child remains in need ofprotective services; • That the Minister has failed to adduce “clear”, “convincing” and “cogent” evidence to satisfy the “balance of probabilities” test andprove that the child, H.W., is still in need of protective services; • That the Minister’s application should be dismissed and the child returned to the care and custody of the Respondent.

Burden of Proof [89] The burden of proof is on a balance of probabilities, which is not heightened or raised because of the nature of the proceeding. In the 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. [90] 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. [91] 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 [92] 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 havebeen its intention that such a hearing simply be a rubber stamp of the original decision.

Equal competition between parents andthe Children’s Aid Society is not supported by the construction of the Ontario legislation. Essentially, the fact that the Act has asone of its objectives the preservation of the autonomy and the integrity of the family unit and that the child protection servicesshould operate in the least restrictive and disruptive manner, while at the same time recognizing the paramount objective ofprotecting the best interests of children, leads me to believe that consideration for the integrity of the family unit and thecontinuing 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 withwhether 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 ofthe decision as to the need of protection. The need for continued protection may arise from the existence or the absence of thecircumstances that triggered the first order for protection or from circumstances which have arisen since that time.

Legislation [93] 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 shouldonly 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 Actand proceedings taken pursuant to it must respect the child’s sense of time. [94] 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 ofchildren. 2(2) In all proceedings and matter pursuant to this Act, the paramount consideration is the best interests of the child. [95] 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 ordetermination 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. [ 96 ] 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. [ 97 ] 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. [ 98 ] Other relevant sections include ss. 42(1) ; 42(2); 42(3); and 42(4), 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 subsection (1) of

Section 45, so that the child can be returned to the parent or guardian. 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. Law and Analysis [ 99 ] “What is the appropriate Disposition Order in the present circumstances, i.e., permanent care or dismissal?” [ 100 ] I have reviewed and considered the evidence, together with the plans and submissions of the parties.

Although I may not have specifically commented on all of the evidence in this decision, I have nonetheless considered the totality of the evidence in reaching this decision. [ 101 ] I have applied the burden of proof to the Minister.

There is only one standard of proof, and this proof is on a balance of probabilities, a burden which must be discharged by the Minister. [ 102 ] I have considered the law and legislative provisions of the Children and Family Services Act . [ 103 ] According to the legislation, which I must follow, the Court has only two (2) stark options available at this time: (1) order permanent care, or (2) dismiss the proceeding and return the children to the Respondent, A,W. [ 104 ] There is no middle ground. As noted by the Nova Scotia Court of Appeal in G.S. v. Nova Scotia (Minister of Community Services), [2006] N.S.J.

No. 52 (NSCA) at paragraph 20 : If the children are still in need of protective services the matter cannot be dismissed. [ 105 ] The law is clear that should a trial judge conclude at a Disposition Hearing or Disposition Review Hearing in relation to a Temporary Care Order, that circumstances are unlikely to change, the judge has no option ...but to order permanent care. Nova Scotia (Minister of Community Services) v. L.L.P., [2003] N.S.J.

No. 1 (NSCA) . [ 106 ] The need for protection may arise from the existence or absence of the circumstances that triggered the first order for protection, or from circumstances which have arisen since that time G.S. v. Nova Scotia (Minister of Community Services) , [2006] N.S.J.

No. 52 (NSCA) . [ 107 ] It is not the Court’s function to retry the original protection finding, but rather the Court must determine whether or not the child continues to be in need of protective services. [ 108 ] I have scrutinized the evidence with care, and I am satisfied that the evidence of the Minister is sufficiently clear, convincing, and cogent to satisfy the balance of probabilities test.

The contention that the Respondent poses a substantial risk of harm or real chance of danger to the child, H.W., has been proven on a balance of probabilities. [ 109 ] I reject the plan put forth by the Respondent, A.W. Her plan in no way addresses the long term needs of the child, H.W., and I find that H.W. would be placed at substantial risk of harm if returned to her mother’s care. The proceeding cannot be dismissed. [ 110 ] A.W.’s plan is uncertain, unstructured, and speculative. It is not reasonable or realistic to place the child in her mother’s care.

As well intentioned as A.W. is, she lacks total insight into the parenting skills which will be required for her child. [ 111 ] The evidence with regard to the Respondent’s ongoing and persistent drug abuse problem is clear, convincing and cogent.

She lacks total insight into her drug issue and the impact it has had, or will have, on her daughter, H.W. [ 112 ] The Respondent has done nothing of a positive nature, in the Court’s view, to alter or change the dynamics that existed at the time her daughter was taken into care by the Minister. [ 113 ] The Respondent has either not cooperated with services or refused to accept services to reduce or eliminate risk to her child.

This is not the conduct expected of a parent who seeks return of a child to her care. [ 114 ] The Respondent has not demonstrated that she remains drug free to the point the Court can entrust her with the important task of parenting. [ 115 ] The unfortunate reality is that A.W. is a drug abuser and her admission to recent “illicit use” is of major concern to the Court. [ 116 ] The Court acknowledges that mother and child have a close, loving relationship, however, her expressed good intentions to improve her life by (

a) abstaining from drugs, and (

b) leaving S.L., are simply not a sufficient basis upon which the Court can conclude that there is a reduction or elimination of risk to the child, H.W. [ 117 ] The Respondent has testified that should H.W. be returned to her care, she would then be willing and able to eliminate any and all of the expressed concerns of the Minister. To the contrary, the Court cannot consider return of a child to a parent’s care unless (and until) the risk of harm has already been reduced or eliminated.

A commitment to do so is simply wholly inadequate when considering the best interests of a child. [ 118 ] A.W.’s plan is purely speculative and futuristic. The Court can place no reliance on same. I am satisfied, on a balance of probabilities, that the child, H.W., would not be safe and free from risk of harm if placed in the environment where the Respondent lives.

[119] A.W.’s plan is neither sound, sensible, workable, nor well-conceived. It has no basis in fact and is premised on the pre-conditionthat the child first be returned to her. This cannot occur. [120] The time limits in this proceeding have been exhausted. Nothing more can be done pursuant to the Legislation to realisticallychange the existing concerns about the Respondent. [121] I find that A.W. is not capable of assuming the demanding role of parenting. It is not safe to return H.W. to her care. [122] A.W.’s pronounced good intentions are not sufficient in terms of removing risk from the equation.

A.W.’s intentions arelaudable, but not reasonable in terms of the child’s best interest. [123] I find the Order requested by the Minister is the appropriate one having considered the totality of the evidence. I agree with, andaccept, the Minister’s submissions. The child, H.W., continues to be in need of protective services. It is in the best interests of the childto be placed in the permanent care of the Minister, pursuant to s. 42(1)(

f) and s. 47 of the Act. I cannot return H.W. to the Respondent,A.W. [124] I further find that the circumstances justifying this conclusion are unlikely to change within a reasonably foreseeable time. [125] Permanent care and custody of H.W. shall, thus, be placed with the Minister in accordance with s. 47, which states as follows: 47(1) Where the Court makes an order for permanent care and custody pursuant to clause (

f) of subsection (1) of

Section 42, theAgency is the legal guardian of the child, and as such, has all the rights, powers and responsibilities of a parent or guardian forthe child’s care and custody. Issue Two [126] Should access be provided to A.W.? [127] In view of the above finding, I must now consider the issue of access under the pre-conditions enumerated under s. 47(2) of theChildren and Family Services Act which states: 47(2) Where an order for permanent care and custody is made, the court may make an order for access by a parent or guardianor other person, but the court shall not make such an order unless the court is satisfied that: (

a) Permanent placement in a family setting has not been planned or is not possible and the person’s access will not impair thechild’s future opportunities for such placement; (

b) The child is at least twelve (12) years of age and wishes to maintain contact with that person; (

c) The child has been, or will be placed, with a person who does not wish to adopt the child; or (

d) Some other special circumstance justifies making an order for access. [128] The Nova Scotia Court of Appeal has held that the onus to show access be granted under an Order for Permanent Care andCustody is upon the person requesting the right of access. In G.S. v. Nova Scotia (Minister of Community Services), [2006] N.S.J.No. 52 (NSCA), Justice Cromwell noted that the access decision contemplated in s. 47(2) of the Act is a “delicate exercise that requiredthe Judge to weight the various components of integrity of the child”.

Cromwell, J. further commented that the Court must consider theimportance of adoption in the presented circumstances of the case and the benefits and risks of making an Order for access. Atparagraph 36 he stated: These submissions must be considered in light of three important legal principles. First, I would note that once permanent carewas ordered, the burden was on the appellant to show that an order for access should be made: s. 47(2); New Brunswick(Minister of Health and Community Services) v. L.(M.), (SCC), [1998] 2 S.C.R. 534 at para. 44 and authoritiescited therein.

Second, I would observe that, as Gonthier, J. said in L.M. at para. 50, the decision as to whether or not to grantaccess is a “...delicate exercise which requires that the judge weigh the various components of the best interests of the child”. Itis, therefore, a matter on which considerable deference is owed to the judge of first instance for the reasons I have set out earlier.

I would note finally that, in considering whether the appellant had discharged her onus to establish that access ought to beordered, the judge should consider both the importance of adoption in the particular circumstances of the case and the benefitsand risks of making an order for access.” [emphasis added] [129] The Nova Scotia Court of Appeal has recently considered s. 47(2) of the Act in Children and Family Services of ColchesterCounty v.

K.T., [2010], N.S.J., No. 474 (Application for Leave to Appeal to SCC dismissed) at paragraphs 39-41 as follows: Therefore, from my reading of s. 47, three conclusions relevant to this appeal are clear. First, the Agency effectively replaces thenatural parents. This puts the onus on the natural parents (or guardian) to establish a special circumstance that would justifycontinued access. Second, by virtue of ss. 47(2)(

a) and (b), an access order must not impair permanent placement opportunitiesfor children under 12. Section 47(2)(

c) is consistent with this. It provides that if no adoption is planned then access will beavailable. This highlights the importance of adoption as the new goal and the risk that access may pose o adoption. Third, forchildren under 12, the “some other special circumstance” contemplated in Section 47(2)(d), must be one that will not impairpermanent placement opportunities. Therefore, to rely on s. 47(2)(

d) as the judge did in this appeal, the (special) circumstances must be such that would not impair afuture permanent placement. When then would s. 47(2)(

d) apply? Consider for example a permanent placement with a familymember which will involve contact with the natural parent. Presuming that the adopting parents would be content with that

arrangement, the adoption would not be deterred. See Children’s Aid Society of Cape Breton Victoria v. M.H., 2008 NSSC 242 at para. 34 . In short, access which would impair a future permanent placement is, by virtue of s. 47(2), deemed not to be in the child’s best interest. This presents a clear legislative choice to which the judiciary must defer.” [Emphasis added] [ 130 ] This position is further highlighted by the comment of Chief Justice Michael MacDonald in K.T., supra , at paragraphs 47 and 38: Before the issuance of a permanent care order, the legislative focus in on preserving the family unit.

This would understandably mean that when the children are in temporary Agency care, parental access is to be encouraged so as to hopefully rehabilitate the family. However, with a permanent care order, the focus shifts. Any hope of preserving the family within the legislated time limits is presumably lost and the focus becomes a stable alternate plan. Thus, upon securing a permanent care order, the Agency under the CFSA effectively becomes the parent: 47(1) Where the court makes an order for permanent care and custody pursuant to clause (

f) of subsection (1) of

Section 42, the agency is the legal guardian of the child and as such has all the rights, powers and responsibilities of a parent or guardian for the child’s care and custody. This provision suggests the termination of the natural parents’ relationship with the children. However, in special circumstances, post-permanent care access is possible although given the stark change in focus, such circumstances are rare and limited to those that would not jeopardize the new focus, namely an alternate stable placement.

Thus, it is not surprising that the provision allowing for such access is highly restrictive. [ 131 ] Justice Fichaud in Nova Scotia (Community Services) v. T.H. , 2010 NSCA 63 also comments at paragraph 46 therein that after a Permanent Care Order has been issued, there is de-emphasis on family contact and instead priority is assigned to long term stable placement. [ 132 ] Justice Oland in Mi’kmaw Family and Children’s Services v. L.(B.), [2011] NSCA 104 nonetheless reminds us as follows at paragraph 42: ...Section 47(2) does not impose a blanket prohibition against access.

Rather, a Judge must consider factors such as the likelihood of impairment of opportunities for permanent placement and whether there are special circumstances which would justify making an access order. [ 133 ] In this regard, I find there are no special circumstances which would justify the making of an Access Order. [ 134 ] The Minister has confirmed its plan to seek permanent placement for H.W. through the process of adoption with no provision for access.

In my view, the awarding of access to the Respondent would impair the contemplated long-term permanent placement, and, thus, by virtue of s. 47(2), I find that access is not in the best interests of H.W. I find there are no special circumstances which would justify the making of an Access Order in these circumstances. [ 135 ] H.W. is entitled to continuity and stability in her life. Permanent care with no provision for access will achieve this purpose.

Conclusion [ 136 ] An Order for Permanent Care and Custody in favour of the Minister will issue, with no provision for access to the Respondent, A.W. [ 137 ] A.W. is not up to the demanding task of parenting, and I foresee the continued involvement of child welfare authorities should the child, H.W., be returned to her care. [ 138 ] The Court has an obligation to ensure the child’s best interests are protected, and that is best achieved with this Order. [ 139 ] Order accordingly. ______________________________ J. I:\COURTS_SYDNCharlotte136\Decisions\Family Division\K. Haley\A.W.DraftDEC.dot