THE MINISTER OF SOCIAL DEVELOPMENT, Applicant, – v. –, 2022 NBKB 191

FDM-89-2015 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF MONCTON Date: October 17, 2022 Neutral Citation: 2022 NBKB 191 BETWEEN: THE MINISTER OF SOCIAL DEVELOPMENT, Applicant, – and – D.K.S.L. and A.L.C., Respondents (Moving Parties), – and – J.A.M.S., T.W.J.D.S. AND N.P.L., Respondents. DECISION BEFORE: Madam Justice Marie-Claude Bélanger-Richard AT: Moncton, N.B. DATES OF HEARING: July 11, 12 and 13, 2022 DATE OF DECISION: October 17, 2022 APPEARANCES: Karen L. LeBlanc for the Applicant April L. Morgan for the Respondents D.K.S.L. and A.L.C.

No one appearing on behalf of the Respondents J.A.M.S., T.W.J.D.S. and N.P.L. Victoria H. Morrissey as Counsel for the children

Summary: Request to terminate a guardianship order denied, but variation of access rights granted BÉLANGER-RICHARD, J.: OVERVIEW [ 1 ] On November 9, 2015, the Minister of Social Development (the “Minister” or the “Department”) was granted a guardianship order regarding five children. Since then and with the Minister’s consent, two of these five children were returned to the Moving Parties. Now, the Moving Parties request the termination of the guardianship order for the two youngest children for whom they are the biological parents.

[ 2 ] The Moving Parties (the “parents”) allege they have changed for the better since 2015 and the Minister’s concerns about physical abuse no longer exist. The parents claim that the two youngest children, L.R.S. (L.) (14 years old) and S.L.L. (Se.) (9 years old) wish to return home and live with them. [ 3 ] The Minister opposes the request to terminate the guardianship order, saying it is not in the best interests of the children. [ 4 ] Terminating a guardianship order is rare and exceptional, but that does not mean these attributes should influence the ultimate decision.

What is at stake and paramount is the best interests of the children L. and Se. FACTS [ 5 ] When a guardianship order was granted regarding L. and Se. in 2015, the major problem was the father’s violent behaviour towards the children or that the children had witnessed. Also, the father hit the mother and at times, she was afraid of him. In her decision, the trial judge made the following conclusions (at para. 107

f) of the decision): f) […] Mr. L. and Ms. C. individually or as a couple cannot break the cycle of violence to which the children have become victims to. After numerous counselling sessions and anger management programs, Mr. L. still resorts to slapping the children across the face, kicking them or hitting them with a clenched fist. I realize that generally St. and Sa. were the recipients of these assaults. However, this violence was witnesses (sic) by all children who were present. As well, Ms. C. did not stop the violence inflicted against the children. At times, she was afraid of Mr.

L. herself. (Page 89 of the Record on Motion) [ 6 ] At trial, the father and mother pretended to have broken up, but the trial judge was convinced they were still a couple. As mentioned, a guardianship order was granted. A right of access to the father and mother was reserved for L. and Se. without specifying the form, the extent or the frequency of such access (para. 114 of the decision – page 89 of the Record on Motion). [ 7 ] In 2015, the Minister’s plan was to keep the children in the Elsipogtog community and to have the children adopted by a family.

However, things turned out to be somewhat different. [ 8 ] For the last seven years, L. has been living off reserve (in Moncton) with the same foster family. In September 2022, L. will be in grade 8 and will be attending a new school. She is very excited to go to this school in Moncton. In Moncton, L. has friends and likes hanging out with them. She does not want to leave her friends by changing her living arrangements. For L., her foster family is “home”. She feels safe with her foster family and when she is sad, she can talk to her foster father. L. has no memories of having lived with her parents.

She does not like where her parents reside. She does not want to visit her parents unless at least one of her siblings is present. [ 9 ] As to Se., he was placed in the community with a foster mother, G., who sadly passed away in the summer of 2021. During his interview with Ms. Elaine Howell (who prepared a Voice of the Child Report), Se. consistently referred to his foster mother G. as “mom”. Following G.’s passing, Se. moved in with G.’s nephew (S.) who resides next door to G.’s home and would often visit. Se. shared with Ms.

Howell that he would like to see his parents “every single morning” and he is worried that he might not go back to living with them. However, Se. likes being with S. as for him, it is a safe place, and he can ask for help if he needs it. [ 10 ] Ms. Elaine Howell is a social worker who interviewed both children in June-July 2022 and prepared a Voice of the Child Report (Exhibit 5). In addition to what I have just reported regarding the children’s interests and wishes, Ms.

Howell makes the following comments about her interviews with the children: Neither child identified their biological parents as sources of protection, comfort, or care. Both children spoke of feeling “safe” with their placements with their current caregivers.

The death of [Se.]’s mother-figure was terrible and traumatic for him, and it has led to worries about his own risk of dying. […] [Se.] made positive references to his biological mother but said nothing about his biological father without being asked. […] [Se.] is very likely looking for comfort. He has a trusting relationship with [S.] but not with [S.]’s partner.

He has lost his mother-figure, and his interest in returning to live with his parents may be connected to his need for comfort. [L.] was distressed at the idea of leaving her foster family and friends and did not want to return to Big Cove or live with her parents now or in the future. (Pp. 7-9 of the Voice of the Child Report - Exhibit 5) [ 11 ] Following the guardianship order, the social worker Rebecca Simon was assigned to the family. She testified that after starting school, Se. was assessed and diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Foetal Alcohol Syndrome Disorder (FASD).

He was put on a modified curriculum at school and an aide was assigned to him in the classroom. Ms. Simon meets with the school representatives every year and reports that Se. does “pretty good” at school. Ms. Simon sees Se. twice a month and meets with his foster parents on a monthly basis. She mentions that grief counselling for Se. will start in the next two months. [ 12 ] Ms. Simon sees L. once a month. Like Se., L. is on a modified educational program and she has an aide at school. For a number of years, L. has been receiving counselling.

Also, L. had occupational therapy twice a month in 2021. [ 13 ] L. and Se. see each other at the visits and at summer camps. Ms. Simon testified there were two family visits per month after August 2021, but due to scheduling and availability issues, the visits were reduced to once a month in December 2021 or January 2022. The Department also tries to arrange for one siblings visit per month. The scheduling of visits is difficult because of the foster parents’

schedule and of the children’s appointments and activities. Ms. Simon testified L. and Se. never asked for family visits prior to this proceeding. They were however interested in seeing their siblings. Since May 2022, L. does not want to go to the family visits. [ 14 ] Ms. Simon testified she still has concerns about the parents. Because she lives in the same community, she claims to be aware of what is going on with regards to the parents and alleges there are ongoing criminal activities and substance abuse at the parents’ home.

However, she has not personally witnessed any such behaviours from the parents. [ 15 ] For the last twenty-two years, the father has been fishing lobster and has been a boat captain. The mother is a stay-at-home mother. The parents now have a 3-year-old son (Sk.). [ 16 ] Regarding the two oldest children who came back to live with the parents in 2020, E. has been coming and going. St. left home when he turned 18, but two months prior to the final hearing in this matter, he came back to live with his parents due to a fire at his apartment.

St. also works as a fisherman. [ 17 ] The father acknowledges that he used to spank the oldest children when they were young. He explained that he was brought up that way. He does not remember hitting L. and he testified Se. never knew “this bad part of me”. However, a Certificate of Conviction was tendered into evidence indicating that the father was found guilty of assault on all his children (including L. and Se.) between June 2013 and November 2015 (Exhibit 1).

In 2017, the father was also found guilty of inviting a young person to do sexual touching (Exhibit 2). [ 18 ] Since 2015, the father has learned new methods of discipline with a counsellor, and he has been using them with his children. Both the father and the mother took parenting classes and an anger management course. The father testified that things are going well at home. He and the mother no longer have verbal fights. The father apparently told the children he was sorry for what he did to them. [ 19 ] About ten years ago, the mother had issues with drugs.

She claims the father helped her to get rid of her drug addiction. The mother admits she now smokes marijuana every day, and she drinks alcohol three or four times a month, consuming eight or nine drinks

at a time. She says she has a babysitter looking after the child Sk. when she consumes alcohol. [ 20 ] The father does not remember having visits with L. and Se. following the guardianship order in 2015. He understood it was up to the children to request visits, and it did not happen as the children were very young. The mother testified there was one visit with the children following the guardianship order, but an incident happened and out of frustration, she called the social worker names.

However, the parents were able to see and watch Se. at times when his foster mother G. did errands or when they drove by her house. G. even allowed Se. to sleep two overnights with his parents. According to the mother, she did not see L. for five or six years because the Department did not share information about L. [ 21 ] Following the filing of the parents’ motion in this matter, an Interim Order was made by the Court to define the children’s right of access pending the final determination of the parents’ motion (the “Interim Order of August 2021”).

The Interim Order of August 2021, provides that the children will have interim access to their parents, as long as it remains in their best interests, as follows:

a) One visit per week for the duration of 1 to 2 hours for the first two weeks of visitation;

b) Two visits per week for the duration of 1 to 2 hours each as of the third week of visitation and every week thereafter. [ 22 ] The Interim Order of August 2021, stipulates the visits must be fully supervised by a family support worker and subject to this person’s availability. Should this person not be available, the parents and the Minister may agree upon another third party to supervise the visit. All the visits must occur in a public place approved by the Minister. Siblings are encouraged to attend the visits as much as possible.

Finally, the Minister has the discretion to terminate or modify the access in accordance with the best interests of the children. [ 23 ] Since the Interim Order made on August 31, 2021, there has never been a 2-hour visit between the children and the parents. No telephone contact has been allowed according to the parents. For a while, the children saw their parents for a 1-hour visit approximately every two weeks. More recently, the duration of a family visit was increased to 1.5 hour. Except for three visits, all visits have occurred at the Department’s office.

The mother described L. as being shy and scared during the visits. The father admits he gives money to the children at the visits. Because the children do not know what they want, he prefers to give them money so they can buy what they want. Recently, the parents have missed some visits; the mother alleges she and the father were sick while the father alleges he needed to work. [ 24 ] The parents do not believe that Se. has ADHD and FASD. The father believes that L. has an eye problem, but he was the only one mentioning this.

The parents are not aware that L. did occupational therapy twice a month and has seen a counsellor once a month for some time. The mother does not believe that L. has special needs or a speech problem. The father does not know L. has a problem with the use of Internet and the mother does not seem to be aware of it either. The father would like to bring the children to his family doctor for them to be assessed, and he says he will do what is needed to help them. [ 25 ] Both parents have a grade 9 education. When the two oldest children came back home, the father tried to help them with their homework.

He admits that he and the mother “googled things for an answer”. He believes that education is important for the children. However, he recognizes that in 2015, the Minister also had concerns about the children not attending school while in their parents’ care. The mother explained that their other child E. was depressed at the time, and she did not want to force her to go to school. The father is not aware if the school in Rexton can offer special support to L.

The mother suggested that a tutor be hired if the children have difficulties at school. [ 26 ] Both parents say they improved a lot since the guardianship order. The mother could not explain how the father’s parenting skills have changed but stated that the father was “so different” and “better than always being mad every day”. The mother testified she is better at keeping her house clean, taking care of her children, and having food in the fridge. If the children L. and Se. are returned under the care of their parents, the mother says they will follow the same routine than they have with Sk., a 3-year-old boy.

During her cross-examination, she modified her answer saying L. and Se. would go to bed later in the evening, e.g., at 10:00 or 11:00 p.m. [ 27 ] The father testified that their home is ready for the children L. and Se. Everything the Minister requested has been done. Each of the children will have his or her own room. The father, however, indicated they do not have beds for the children yet, but he has the

money to buy the necessary furniture when the children come home. The mother was asked where the children would sleep if they had overnight visits with them; she answered that they could sleep anywhere and even in her bed if they wanted. [ 28 ] According to the parents, L. gets along with all her siblings except with E. E. and L. had an “Internet fight” about one or two months ago. The reason of the Internet fight was about Sa. (the other child for whom a guardianship order was granted in 2015) whom L. considers to be her brother even though there is no blood relationship between them.

The mother and E. wrote to L. that Sa. was not her brother, and he was “nothing” to them. Despite L. insisting she still loved Sa. and mentioning she was heartbroken by their comments and wanted them to stop saying Sa. was not her brother, the mother told her she would continue to tell her the truth. [ 29 ] By all accounts, the parents have not been cooperative with the Minister and her representatives. The father also admits that he probably spoke negatively about the foster parents. He claims he will cooperate with the Department if the children are returned to his home.

The mother will not cooperate with the Department because they do not cooperate with her. The mother believes that L. is being “brainwashed” by the Department and therefore, L. has no emotions. In the mother’s opinion, L. would be better at home because she would not be hurt by the Department. The mother says she will not stop L. if she wants to visit her foster parents or friends in Moncton. Even if L. does not want to be returned home, both parents insist she should be under their care.

The mother does not believe that L. does not want to come live with them. [ 30 ] Robert Doucet, a licensed psychologist and recognized expert in psychological assessments and parental capacity assessments, prepared two reports regarding the parents. His first report dated September 25, 2021, consisted of a psychological assessment. In that report, Mr. Doucet concluded that both parents did not present “overly aggressive and/or with a serious psychological problem”. He opined they appeared to show a genuine concern for their children L. and Se. and good intentions regarding their parenting role. However, Mr.

Doucet expressed concerns about the parents’ past history, their rather weak parenting style and their relaxed routine and structure considering the children’s learning and behavioural challenges.

At page 6 of his report (Exhibit 7), he wrote: A problem as I see it, in my opinion, based on their past parenting strategies, has been that they present a rather weak parenting style where structure, boundaries and routine are rather relaxed and that this can contribute to major problems as the children grow older and continue to test the limits of behaviour thereby producing a response from the parents that may or may not be favorable.

Specifically for [the father], a child’s disruptive behaviour will have a tendency to increase his stress level and in the past, has probably contributed to an overly aggressive response in order to try to control his children’s behaviours. Although [the father] recognizes his past mistakes in terms of aggressiveness towards the children, I do not believe that he has acquired significant alternatives of parenting skills which would prevent him from responding in similar ways that he did in the past.

In other words, it is not good enough to have good intentions and have love, a parent needs to have the skills of providing structure, routine, consistency to a child as well as appropriate disciplinary measures so that the child learns to be secure and understands the boundaries of his or her behaviour as he continues to develop. As for [the mother], I also regard that her parenting skills would need to be upgraded so that she can learn to implement more effective structure including routines so that the young child that they have now will not present future behaviour problems as he continues to develop.

In other words, both [the mother] and [the father] would need to upgrade their parenting skills so that they can avoid the problems which occurred in the past with regards to their parenting style. [The mother] and [the father]’s family of origin experiences present many problems and no doubt did not provide them with good parenting models and experiences they would have been able to carry forward in their adult lives. […] The parents therefore have to learn what they were not taught during their early years. This is doable however takes time and practice.

Both [Se.] and [L.] present with some learning and behavioural challenges. Diagnoses of Foetal Alcohol Syndrome Disorder, Attention Deficit Hyperactivity Disorder and learning problems require a parent to provide a consistent structure and routine for these children to help manage their behaviours. To not do so, would result in an unregulated emotional and behavioural response which would occur at home as well as at school.

These types of disorders are of a long term nature and require a parent to be quite vigilant and to provide a household environment which would be conducive to the children showing appropriate behaviour and mood regulation. [ 31 ] For his second report dated June 30, 2022, Mr. Doucet did a parenting capacity assessment in which he combined the results obtained for his first report with the results obtained from his most recent assessment with the parents and the children. As part of his most recent assessment, he observed interactions between the parents and the children during two visits.

However, neither the father nor L. were present during the first visit he observed. Mr. Doucet recorded the following observations regarding these two visits: First visit (page 4 of the report – Exhibit 8): This visit consisted mostly of [the mother] having prepared a meal and various snacks for [Se.] which he consumed at various times during the visit. Everyone were involved in consuming snacks. Other than the consumption of food, there was no particular activity that was planned with [Se.].

The atmosphere was rather relaxed and free-flowing and I did not observe any disruptive behaviours on either parent or child. [Se.] showed no difficulty in approaching his mother and asking questions and sharing information with her and as well, [the mother] appeared relaxed when interacting with [Se.]. […] As a side note, I noticed that the snacks were not particularly nutritious and somewhat sugary which is not necessarily advisable for a child who has Attention Deficit Hyperactivity Disorder behaviours.

A further observation was that [Se.] was asking for money during this visit and the mother informed him that she had transferred money from his father’s account into hers and that she could give him some money. Second visit (pp. 4-5 of the report – Exhibit 8) The activity again revolved around the consumption of food which [the mother] and [the father] had prepared prior to the visit. At this visit, [L.] had decided to attend as well. What was noteworthy however, was the fact that when the foster parents arrived with [L.], she refused to get out of the car until her brother [Se.] had also arrived.

The atmosphere during the visit was pleasant and cordial and both [Se.] and [L.] appeared to be relaxed in the family home. […] During this visit as well, the issue of money came up as well as the parents wanting to give [L.] either a hamster or a small rabbit. [ 32 ] In his second report, Mr. Doucet lists the challenges the parents face in wanting their children back in their care. In addition to their difficult family of origin backgrounds and the personal issues they had in the past, Mr. Doucet describes the following other challenges for the parents: 3.

Both [Se.] and [L.] have been assessed with developmental issues, including learning problems, attachment related difficulties, Attention Deficit Hyperactivity Disorder and as well Foetal Alcohol Syndrome Disorder. These difficulties impact the children at various levels, most notably school where they will require extra help and guidance as they continue to mature. At home, it may present itself as behaviour problems if the environment is not sufficiently structured with consistency and stability.

Both children are described as being easily influenced and subject to getting into negative relationships as they continue to mature. The presence of incentives such as money during the visits is not seen as a positive sign and especially with [Se.], could be a major influence on his comments of wanting to return to live with his parents. Further information obtained from [L.]’s foster parents indicate that this child has shown multiple behaviour problems in the past years and requires a consistent discipline and structure approach to deal with these same behaviours.

Her exploration of porn on her phone is an example of such behaviour. [L.]’s intellectual difficulties affect in large part her level of maturity and judgement and she is seen as a much younger child than her stated age of fourteen. Her judgement, decision making and tendency to be influenced could be greatly negatively affected is she is not monitored closely. […] 4. Both [the mother] and [the father] have not engaged in any formal training on how to deal with children who have Attention Deficit Hyperactivity Disorder or Foetal Alcohol Syndrome Disorder.

If left unchecked, these behaviours can escalate and cause multiple problems within a family dynamic. In my recent phone interview with [the mother], she indicated she doesn’t believe her children have these reported diagnoses and that they behave as normal children do. 5. The text messages between [L.], [the mother] and [E.] is an example of how they perceive [L.] as a normal 14-year-old and seek to influence her thoughts on who is and who is not part of the family and who to associate with even though [L.] expresses a different opinion.

My understanding from reviewing these exchanges was that it doesn’t matter for [L.] whether a brother or sister is of biological blood but rather the connection she has established with this family member whereas for [the mother] and [E.] they were pressuring [L.] to remain loyal to her immediate biological family. […] 6. Both [the father] and [the mother] are able to attend to the children’s basic needs including food, housing, clothing as well as able to show love and caring. They have good intelligence with no severe mental health issues. They have a relaxed parenting approach.

They are however less well equipped to deal with behaviours that are seen as more challenging as the ones mentioned in the above comments. All this would tend to challenge [the mother] and [the father]’s basic childcare behaviours and bring about an increased amount of stress in their relationship and within the family dynamic. The result would not be positive for both [Se.] and [L.].

There is a tendency to deny the presence of these disorders within both of these kids which therefore implies that both [the mother] and [the father] have not sought to educate themselves in these types of disorders and the intervention which are conducive to improvements in general functioning.

(Pp. 6-7 of the Psychological Parenting Capacity Report – Exhibit 8) [ 33 ] Mr. Doucet testified he saw good intentions on the part of the parents, but no significant changes regarding their parenting capacity. He expressed concerns about the parents not having acquired the necessary knowledge to parent children with special needs. He stressed the numerous issues that L. and Se. have, and the importance for the parents to identify these issues so they can fulfill the children’s needs. [ 34 ] Mr. Doucet indicated L. needs to be monitored closely because of her immature behaviours.

He also emphasized how disruptive it would be for L. to be removed from her foster family with whom she has been living for the last seven years. As to Se., Mr. Doucet mentioned that Se. was looking for an attachment figure after the loss of his foster mother G. and in that regard, Se. needed counselling. Mr. Doucet was also concerned that Se. was being influenced by the fact he has been given money from his parents during visits, and Se. might have the impression that this would be the kind of life he would have with them.

ISSUES [ 35 ] In their Amended Notice of Motion and in their pre-hearing brief, the parents seek the termination of the guardianship order made on November 9, 2015, regarding L. and Se. In their post-hearing brief, the parents request that if one or both children remain in the care of the Minister, this Court should define the terms and conditions of the access order already granted to L. and Se. as part of the guardianship order.

This alternative relief was not pleaded by the parents in their amended motion although they asked that the children’s right of access “be defined and enforced pending the final hearing of this Motion” (page 5 of the Record on Motion) (emphasis added). This interim relief sought by the parents was heard and determined by the Court, resulting in the Interim Order of August 2021. [ 36 ] In her post-hearing brief, the Minister points out that the parents have not sought a variation of the guardianship order regarding the children’s right of access.

However, as I will explain later in more details, the Minister agrees that the Family Services Act , S.N.B. 1980, c. F.2-2 , gives to the Court the jurisdiction to vary a guardianship order. The Minister, however, insists that a change in circumstances must be proven before a court considers appropriate and in the best interests of the children to make a variation order regarding access rights and, in this case, the parents did not meet their burden of proof. [ 37 ] Therefore, I will address the two following issues in this decision:

a) whether it is in the best interests of L. and Se. to terminate the guardianship order made on November 9, 2015; and

b) whether there should be variation of the children’s right of access if the guardianship order remains in place. LAW AND ANALYSIS

A) TERMINATION OF THE GUARDIANSHIP ORDER [ 38 ] Section 60(3) , 61(1) and 61(4) of the Family Services Act , S.N.B. 1980, c. F-2.2 (the “ Act ”) allow a child or former parent of the child to apply to the Court for a variation or termination of a guardianship order or a guardianship agreement where six months have elapsed since the making of the order or agreement, the child has not been placed for adoption, and upon giving a 14-day notice to the Minister. Section 60(3) and 61(1) read as follows: 60(3) Where authorized under

section 61, the child or the former parent may, upon fourteen days’ notice to the Minister and any other person affected, apply to the court to have a guardianship order or agreement varied or terminated. 61(1) Where a child is in care under a guardianship order or a guardianship agreement and at least six months have elapsed from the making of the order or agreement or from any previous review of the order or agreement, a child or former parent of the child may apply to the court to vary or terminate the order or agreement. 61(4) A court shall not hear an application under this

section if the child has been placed for adoption.

[ 39 ] Section 61(2) of the Act provides a legal framework for the hearing and determination of a request for the termination or variation of a guardianship order. Section 61(2) states: 61(2) Upon receiving an application under subsection (1), the court shall, subject to subsection (4), (

a) hear the matter in accordance with

section 60, (

b) take into account as additional considerations, (

i) whether the Minister has fulfilled his obligations under the order or agreement, and (ii) if relevant to the application, whether the former parent is able and willing to provide appropriate care for the child. [ 40 ] In “hearing the matter in accordance with

section 60”, the Court must be satisfied that it is in the best interests of the children to make an order ( section 60(6) of the Act ). However, as stipulated in section 61(2) (

b) of the Act , there are additional considerations that a court must take into account in hearing this kind of applications. These additional considerations are: i- whether the Minister has fulfilled his obligations under the guardianship order, and ii- if relevant, whether the former parent is able and willing to provide appropriate care for the children. [ 41 ] I will first start with the analysis of the children’s best interests.

Section 1 of the Act provides a definition of “best interests of the child” and gives a list of factors to consider: “best interests of the child” means the best interests of the child under the circumstances taking into consideration: (

a) the mental, emotional and physical health of the child and his need for appropriate care or treatment, or both; (

b) the views and preferences of the child, where such views and preferences can be reasonably ascertained; (

c) the effect upon the child of any disruption of the child’s sense of continuity; (

d) the love, affection and ties that exist between the child and each person to whom the child’s custody is entrusted, each person to whom access to the child is granted and, where appropriate, each sibling of the child and, where appropriate, each grandparent of the child ; (

e) the merits of any plan proposed by the Minister under which he would be caring for the child, in comparison with the merits of the child returning to or remaining with his parents ; (

f) the need to provide a secure environment that would permit the child to become a useful and productive member of society through the achievement of his full potential according to his individual capacity; and (

g) the child’s cultural and religious heritage; [ 42 ] In light of these factors and after having carefully reviewed and weighed the evidence, I conclude as follows:

a) Children’s needs : Both children have special needs as they have been diagnosed with ADHD and FASD. As explained by Mr. Doucet, the children’s behavioural challenges and learning problems require consistent structure, routine, and stability. While the parents state they will do what is required for the children’s needs, it does not appear they intend to change the relaxed structure, boundaries and routine they have adopted at their home. Unfortunately, the parents do not acknowledge the children’s special needs and do not find essential to modify their parenting style.

It is evident that the parents have improved since 2015. The father learned how unacceptable his violent behaviour was and its negative effects on the children. The mother no longer has a drug addiction. The parents would be able to attend to the children’s basic needs such as food, housing, and clothing, and they would show love and caring. However, by ignoring the children’s special needs, the parents are unable to fulfill all the children’s needs and consequently, to ensure improvements in their general functioning.

Also, I have concerns about the parents’ ability to help the children with school assignments and to impose the necessary discipline to ensure school attendance. Under the Minister’s care, the children have shown improvements at school and at home. When needed, counselling and occupational therapy have been offered to L., and Se. will soon obtain grief counselling. Following psycho-educational assessments, both children are now following a modified curriculum at school to ensure academic progress.

In their respective foster home, each child has appropriate structure, routine and guidance that help them manage their behaviours and emotions.

b) Children’s views and preferences : L. is 14 years old. She is adamant she wishes to stay with her foster family and attend school with her friends in Moncton. Since the guardianship order, she has not asked to see her parents. When family visits were suggested to her, she accepted only after being told family visits would be supervised and siblings would be present. Ms. Howell confirmed that L.’s views appeared voluntarily expressed. The mother testified that L. once expressed the wish to come home, but she did not explain in what context L.’s statement was made.

The mother also said L. had a “breakdown” after a one-hour visit, but the Department refused to offer more time for visits. Once again, no detail was provided for me to give any weight to these statements made by L. in front of her mother. As to Se., he has expressed the desire to go live with his parents. However, both experts, Mr. Doucet and Ms. Howell, mentioned that Se.’s desire may be connected to his need for a mother-figure and comfort. I am also concerned about the father regularly giving money to Se. during family visits.

Although the father insists on his good intentions in giving money to his son, Se. is only nine years old and can be easily influenced or lured by the prospect of money each time he asks for it.

c) Effect upon the children of any disruption of the children’s sense of continuity : I understand that prior to the guardianship order, the children were moved around in different foster families. However, for the last seven years, L. has been living with her current foster family. For her, they are “home”. While L. will be attending a new school in September 2022, she will continue to be with the same friends she has known for a number of years. L. feels stable and safe in her current environment.

On the other hand, she has no memories of living with her parents and she is distressed at the thought of moving in with them. Returning L. to her parents would evidently be a major disruption of L.’s sense of continuity and security. As to Se., he was placed with G. following the guardianship order. Se. had a close connection with G. and still refers to her as his “mom”. He is still grieving from her death. In order to ensure some continuity, the Minister decided to place Se. with G.’s nephew who lives next door to G.’s home and was used to come over for family dinners.

Although there has been a significant change in Se.’s life with G.’s departure, the Minister has maintained stability in his life by ensuring that a well-known and trusted family member takes over his care. Even though Se. expresses a desire to go live with his parents, he still insists on maintaining his ties and contacts with his foster father S. The fact that Se. feels safe with S. is important and would be impacted if he was to return to his parents. Mr. Doucet also mentioned that for children with FASD, transition to a new situation may be challenging.

d) Family ties and love : Without a doubt, the parents love L. and Se. They have the best intentions regarding their care. Se. and L. also love their parents and appear to enjoy visiting them. It is also evident that the siblings like one another and enjoy being together. Despite the incident that happened between L. and E., I am convinced that time will help resolve their conflict.

e) Plans : The Minister plans to continue looking after the children and ensuring all their needs are fulfilled. Similarly, the parents plan to take care of their children.

f) Secure environment and achievement of the children’s potential : Both children have expressed they feel safe at their respective foster home. There is no doubt that the children currently live in an appropriate and safe environment. With the services, support, and assistance provided by or through the Department, the children are able to develop and grow in becoming useful members of our society. In providing for the children’s special needs, the Minister ensures the children may achieve their best potential.

On the other hand, the parents have demonstrated a lack of understanding regarding the children’s special needs. The parents are therefore unable to fulfill these needs and allow the children to develop to their best potential. According to Ms. Howell, neither children identified their parents as sources of protection, comfort or care. The Minister has also alleged a potential issue of safety regarding the parents, claiming that there were criminal activity and substance abuse at their home.

However, the evidence presented on this issue was based on rumors and gossips circulating in the community and I do not accept this evidence.

g) Children’s cultural heritage : The parents are proud of their Mi’kmaq culture. They wish to teach their children about Mi’kmaq language and activities such as fishing, hunting, and beading. The father, however, testified he does not participate in community events. According to the mother, they learn and do things the Mi’kmaq way, but she did not elaborate as to what it involves. Since the guardianship order, Se. lives in a First Nations community and L. resides with a First Nations family. According to Ms. Simon, the children have attended cultural camps and events, and they have been introduced to cultural ceremonies. Also, there are many cultural

programs at Se.’s school. As to L., Ms. Simon testified that her foster parents ensure L. is exposed to her culture. [43] Pursuant to section 61(2)(

b) of the Act, I must take into account two additional considerations in determining to terminate or varya guardianship order. I must consider first whether the Minister has fulfilled his obligations under the guardianship order, and second,whether the former parents are able and willing to provide appropriate care for the children. [44] Section 56(2) of the Act stipulates the Minister must meet the obligations set out in section 45(3) when a child is in care under aguardianship order. Section 45(3) of the Act reads as follows: 45(3) Where the child is in care under a guardianship agreement, the Minister shall (

a) provide care for the child that will meet his physical, emotional, religious, educational, social, cultural and recreational needs; (

b) provide for the support of the child; and (

c) consider any wishes that the child expresses with regard to any placement or planning the Minister proposes; and the Minister has full parental rights and shall exercise full parental responsibilities with respect to the child. [45] In this matter, I am satisfied that the Minister has been providing appropriate care to the children and the children’s needs,including their special needs, have been fulfilled. The Minister has also been providing for the support of the children.

Regarding thechildren’s wishes, the Minister has recently considered them and has consequently organized family visits and siblings visits for thechildren. I would comment that it does not appear that the children’s right of access under the guardianship order was given muchimportance by the Department until very recently. Prior to the filing of the parents’ motion, there was no access organized by theDepartment between the parents and the children. Se. was seeing his parents occasionally because they all live in the same community. L. was seeing her siblings by attending cultural events and summer camps.

After the filing of the parents’ motion, the Court made theInterim Order of August 2021 to ensure regular supervised access between the parents and the children. The Interim Order of August2021 provided that, after three weeks of visitation, there were to be two visits per week for a duration of one to two hours per visit. Asexplained by Ms. Simon, there were issues with the scheduling of the family visits and the availability of support workers. Therefore,the family visits did not happen as provided for in the Interim Order of August 2021. During Ms.

Simon’s testimony, I did not have theimpression that she was very supportive of the children’s right of access. Even though I am preoccupied by the Minister’s actionsregarding the children’s right of access, I am still satisfied that overall the Minister has been caring for the children L. and Se.appropriately. [46] As to the second consideration, I find that it is appropriate in the circumstances of this matter to consider whether the parents areable and willing to provide appropriate care for their children. There is no question that the parents are able and willing to provide forthe children’s basic needs.

The issue lies with the children’s special needs. The parents do not recognize the children’s special needs. Consequently, they cannot help the children with the challenges and issues ensuing from these special needs. While the parents say theywill do what needs to be done for their children, I am very concerned that they do not have the knowledge and tools to recognize thechildren’s challenges and properly address them.

Their relaxed parenting style is not appropriate for these children who need routine,structure, boundaries and consistency. [47] Therefore, although I recognize and commend the parents for having made significant positive changes to their lives, I mustconclude that it is in the best interests of the children to maintain the guardianship order made on November 9, 2015. The additionalconsiderations I am mandated to consider also support my conclusion.

B) VARIATION OF THE CHILDREN’S RIGHT OF ACCESS [48] Finally, I must determine whether a variation of the children’s right of access is warranted in this matter. The Minister opposesany changes to the access provision that gives to her full discretion regarding the terms and conditions of such access. The parents insiston a more structured access as they complain about the Minister’s reluctance and incapability to organize access between the parents andthe children despite the children’s explicit desire to see their parents. [49] In New Brunswick (Minister of Health and Community Services) v. M.L. and R.L., (SCC), [1998] 2 S.C.R. 534

(S.C.C.) ( L .(M.)), the Supreme Court of Canada states that post-guardianship access rights belong to the child, and not to the parents. Access is the exception and not the rule in the circumstances of a guardianship order. [ 50 ] In the present matter, the Minister submits that a change in circumstances is required before a court may vary the access rights under a guardianship order. While I agree that the situation must have changed somewhat to justify a variation of access rights, it is a “change of circumstances that affects the best interests of the child” ( New Brunswick (Minister of Social Development) v.

G. (M.) , 2012 NBCA 19 (N.B.C.A.) ( G.(M.) ) at para.12).

I am of the opinion that the threshold for a variation of post-guardianship access is the best interests of the child as stipulated in section 60(6) of the Act , which reads as follows: 60(6) Upon hearing an application the court, if satisfied that it is in the best interests of the child to do so, may make such order authorized by this Part as it considers appropriate. [ 51 ] In other words, the best interests of a child being at stake upon a request to terminate a guardianship order, the court has the discretion to make any orders as it considers appropriate including reviewing the access provision.

The Supreme Court of Canada expressed the same view in L.(M.) at para. 27 : 27 In short, the Act provides for the guardianship order to be varied on the application of the Minister (s. 60(2)) or the parents ( ss.60(3) and 61(1) ) and for the court to be able to make any order that it considers appropriate at that time, having regard to the best interest of the child ( s. 60(6) ).

Access may be considered when the guardianship order is reviewed. [Emphasis added.] [ 52 ] Therefore, I do not agree that a “change in circumstances” is formally required before a court will consider whether access should be granted or varied when a guardianship order is under examination pursuant to section 60(3) of the Act .

Access depends on the best interests of the child where a court is in the process of determining whether a guardianship order should be terminated or maintained. [ 53 ] In most cases where a right of access is reserved for a child, the Minister has a discretionary power to determine what access the child will have with his or her former parents, taking into consideration the best interests of the child.

The form, extent and frequency of access are not usually spelled out in a guardianship order and the Minister, being entrusted with full parental rights and responsibilities regarding the child, exercises her discretion to allow or deny such access. [ 54 ] I agree with the Minister that in many cases in the province of New Brunswick, a right of access is reserved to a child without any specifications save and except that it must be exercised in the best interests of the child.

The New Brunswick Court of Appeal also seems to support discretion and flexibility regarding post-guardianship access considering their comments in G.(M.) , at para. 11: 11 With respect to the second ground, the Minister argues that structured access should not have been ordered because it had not been specifically sought by the child’s counsel. The Minister points out that structured access creates difficulties for both the Minister and the child and argues that discretion and flexibility should be the norm.

We generally agree with this last proposition. [Emphasis added.] [ 55 ] In G.(M.) , the trial judge granted a guardianship order and imposed a structured access.

The Court of Appeal still dismissed the appeal because of the deference they owed to the trial judge’s assessment of the best interests of a child and because the structured access provision in the guardianship order was not immutable or, in other words, could be changed. [ 56 ] As mentioned earlier, the Supreme Court of Canada in L.(M.) recognized the judicial discretion to provide for access rights in a guardianship order, but I note that the Supreme Court of Canada also expressed some reservations about leaving the issue of access entirely in the Minister’s hands : 29 If the court has the power to “preserve” a right of access after adoption, a measure that is even more drastic and final than permanent guardianship, it would be illogical for it not to have the power to grant access when it makes the initial permanent guardianship order. 30 This

interpretation of the Act is consistent with what was intended by the legislature, that is, the best interests of the child . Any other

interpretation would leave the question of access entirely in the Minister’s hands. This would not be desirable, in that the children might suffer, from example, from administrative oversights, lack of communication or tensions between the people involved (citations omitted). [Emphasis added.] [ 57 ] I agree that in that context, the Supreme Court of Canada was referring to a guardianship order that would be silent on the issue of access. However, I believe the same reservations apply to an indeterminate access provision in a guardianship order.

Section 56(3) of the Act already provides that the Minister “may return the child to the former parent periodically, as the Minister considers appropriate”, under a guardianship order. In L.(M.) , the Supreme Court of Canada underscored that the expression “may” means “must” where that is in the best interests of the child (para. 18). Therefore, an indeterminate access provision in a guardianship order providing that such access shall be in accordance with the best interests of the child replicates what is already the Minister’s obligation under section 56(3) .

Consequently, if there are concerns or issues regarding “administrative oversights, lack of communication or tensions between the people involved”, a court should not leave access in the Minister’s hands and should exercise its discretion to impose more definite access rights to the benefit of the child in a guardianship order, with the understanding that some flexibility and discretion may be required in the exercise of such access. [ 58 ] It is evident that when a court already granted explicit access rights to a child in a guardianship order, serious consideration must be given to these rights in reviewing the guardianship order.

The manner these access rights were exercised and how the children reacted to such access should be part of the analysis in determining what is in the best interests of the children in reviewing such access. In L. (M.) , the Supreme Court of Canada provides guidance on how a court should reach a determination on post-guardianship access and in my opinion, the same principles apply when access is under review like in this case: 51 The decision as to whether or not to grant access is a delicate exercise which requires that the judge weigh the various components of the best interests of the child.

It is up to the judge to determine which of the child’s interests and needs take priority […] A child’s emotional stability is of prime importance. If the child is unduly disturbed by access, it is generally not granted […]. 52 The evidence as to how access has been exercised is particularly relevant, since it relates both to the attitude of the parent and to the effects of the visits on the child . Every parent must place his or her child’s interests ahead of the parent’s own. The parent’s inability to do so, and the harm suffered by the child, are factors that may result in access being prohibited.

This will be the case, for example, where the parent is violent, manipulative, unstable or unable to control his or her emotions. With regard to the effects of the visits on the child, signs such as sadness, anxiety, regression, the reappearance or exacerbation of behavioural problems, mood and nightmares may evidence harm. […] In short, the parents must be worthy of being “visitors in their child’s life”, in the words of Judge Cook-Stanhope in Alberta (Director of Child Welfare) v. O (L.L.) , (July 2, 1996), Doc. Calgary N13875 (Alta. Prov.

Ct.), at para. 94. [Emphasis added.] [ 59 ] At para. 49 of their decision, the Supreme Court of Canada also emphasized that the child’s wishes, where the child is capable of expressing them, is an important consideration in determining access, based on section 6(1) and 45(3) (

c) of the Act . Section 6(1) and 45(3) (

c) read as follows: 6(1) In the exercise of any authority under this Act given to any person to make a decision that affects a child, the child’s wishes, where they can be expressed and where the child is capable of understanding the nature of any choices that may be available to him, shall be given consideration in determining his interests and concerns, and the interests and concerns of the child shall be given consideration as distinct interests and concerns, separate from those of any other person 45(3) Where the child is in care under a guardianship agreement the Minister shall […]

c) consider any wishes that the child expresses with regard to any placement or planning the Minister proposes;

[ 60 ] In the present matter, the parents complain that the Minister did nothing to organize access following the guardianship order. The parents were able to see Se. because his foster mother G. had an open-door policy and did not mind such contacts. However, there was no contact between L. and her parents. The social worker Ms. Simon testified the parents never asked for family visits until they filed the current proceeding. However, Ms. Simon admitted under cross-examination that a few years ago, the mother asked for visits around Christmas time, but Ms.

Simon told the mother she had lost all her rights with the guardianship order. Ms. Simon told the mother to bring her gifts to the office and upon receiving the mother’s gifts, Ms. Simon provided them to the children. Ms. Simon also admitted she did not advise the parents when the children were in the community attending cultural camps or events.

No telephone access has been allowed between the children and the parents since the guardianship order. [ 61 ] Following the Interim Order of August 2021, some visits between the children and the parents were organized, but the visits never lasted two hours and did not occur twice a week, contrary to that Order. According to the mother, the visits only increased to 1.5 hour per visit every two weeks at the end of June 2022. She asked for two visits a week, but there was either no available supervisor or no available space. The social worker Ms.

Simon testified she never explored the possibility of appointing a third party to do the supervision despite this option being expressly mentioned in the Interim Order of August 2021 ( para. 1 (c)). As to siblings visits, the Department tried to organize them once a month whenever a family support worker was available. [ 62 ] According to the parents, the visits go well, but both children do not talk a lot. For the parents, the children are scared to talk because of the presence of a social worker and a support worker. On the other hand, Ms.

Simon testified there is a lot of talking during family visits, the parents and children like to play games, and there are good interactions between them. As the visits take place at the Department’s office, the parents claim to be limited as to what to do with the children. I however note that the two visits which were observed by Mr. Doucet happened at the parents’ home, and there was another visit that took place at a restaurant because it was Sk.’s birthday. Mr.

Doucet testified both children reacted positively to their parents during the visits. [ 63 ] L. has expressed the desire to continue living with her foster family. She does not want to go back living with her parents and in their community. According to Ms. Howell, L. was clearly distressed by the thought of going back with her parents. The mother is convinced that L. has been brainwashed by the Department and L. says what they want her to say.

In May 2022, L. added her mother to her Facebook account, but after one conversation that turned sour (Exhibit 3), there has not been any further contacts between L. and her mother through social media. According to Ms. Howell, L. likes the family visits because of the opportunity to see her older siblings and Se., but L. did not mention Sk. Since June 2022, L. has decided not to attend family visits and I assume that her decision is motivated by the internet fight she had with E. [ 64 ] Se. expresses the desire to have visits with his parents and to stay with them.

He however does not want to lose his foster father S. [ 65 ] The evidence shows that the parents have not been cooperative with the Minister, and they spoke negatively about the foster parents and the social workers. The parents do not deny this. Also, both parents admitted at the hearing they had missed visits in the previous weeks because they were either sick or at work. [ 66 ] At the hearing, Mr. Doucet was not opposed to family visits because the children react positively to their parents. He agreed that it would be beneficial to have a more structured access, and especially for Se. Ms.

Simon also agreed that it could help to have a more structured

schedule of access. However, she added the Department would only follow a defined access

schedule if it was in the best interests of the children as determined by the Department . [ 67 ] The parents suggest unsupervised access because the children would not be scared to talk to them. Mr. Doucet was uncertain about the necessity of having supervised visits considering the improvements in the parents’ behaviours. He however mentioned the children appeared comfortable in the presence of a support worker. He added that if there were unsupervised visits, there should not be any negative comments expressed by the parents. Ms.

Simon has concerns about unsupervised family visits at the parents’ home because of the father’s past convictions, the lack of improvements in the parents’ behaviours and what she hears in the community. She testified about the parents speaking negatively about the Department, the foster parents, and the proceedings in front of the children. Ms. Simon also mentioned the fact that Se. is being given money by his parents during visits and is impressionable at his age.

Finally, the Department takes the position that all communications between L. and her parents should be supervised. [ 68 ] After considering all the evidence, I am convinced that the children like the family visits where their parents and siblings are all together. I find the children benefit from these family visits. They keep learning about their family background and their culture. They

develop a relationship with their siblings and it helps growing a sense of appurtenance. However, I believe it is important to respect L.’s wishes regarding these visits. The Minister is not opposed to maintaining a right of access for the children but insists on some safety measures such as supervision during the visits and having a broad discretionary power regarding these visits. [ 69 ] I agree that some supervision should be in place regarding the family visits to ensure that the children are comfortable and safe as well as to avoid the children being influenced by negative comments expressed by the parents.

I however disagree on giving to the Minister a broad discretion regarding the visits. The evidence I heard convinces me that the indeterminate access provision laid in the guardianship order has not been used to the benefit of the children. Even after the Court ordered a minimum of visits per month as per the Interim Order of August 2021, the Minister did not comply with the access provision, alleging a lack of available resources. While I may accept some difficulties in having the appropriate resources, the Minister still did not try to appoint a third party for supervising the visits.

Clearly, there are tensions between the parents and the social worker Ms. Simon, which tensions are not conducive of finding solutions that would be in the best interests of the children regarding access to their parents. [ 70 ] Therefore, I will vary the access provision in the guardianship order, and considering the best interests of the children, I will order as follows:

a) The child Se. shall have three (3) supervised visits per month with his parents for a duration of three hours for each visit with the visits occurring on the first 3 Saturdays of every month. Se.’s siblings may attend the visits. The supervisor shall be such responsible adult as agreed upon between Se.’s foster father S. and the parents. Failing any such agreement, the visit shall be supervised by a family support worker engaged and designated by the Minister. The visits shall occur at the parents’ home unless the supervisor of the visit makes the decision to designate another location.

b) As long as the child L. wishes to have family visits, the child L. shall have two (2) supervised visits per month, jointly with her parents and at least two (2) siblings, for a duration of two hours for each visit, with the visits occurring on the first and third Saturdays of every month. The supervisor shall be such responsible adult as agreed upon between the Minister and the parents. Failing any such agreement the visit shall be supervised by a professional access supervisor to be paid by the parents. The visits shall occur at the parents’ home unless the supervisor of the visit makes the decision to designate another location.

c) The exact time of the visits shall be determined by the availability of whoever will supervise the visits and the children’s schedule. The Minister shall coordinate the exchange of necessary information between the parents, the supervisor, and the foster parents.

d) Neither the parents nor any siblings shall speak negatively about the Minister’s representatives, the Department, or the foster families during the visits.

e) If any visit is missed by reason of the Minister or her representatives, such visit shall be replaced within 30 days by another visit under the same conditions.

f) If at any time any of the parents misses more than three consecutive visits with a designated child without reasonable excuse, access between the parents and the designated child shall be suspended until further Order of the Court or until the Minister deems it in the best interests of that child to resume access.

g) If L. or Se. requests telephone access to their parents, L. or Se. shall be allowed to call their parents once a week. The same applies if L. or Se. requests telephone access to any of their siblings. The duration of each call shall not exceed fifteen (15) minutes and shall be monitored by the foster parents.

h) The Minister shall continue to ensure that L. and Se. have regular contacts with their siblings whether in attending community events, camps or siblings visits. DISPOSITION [ 71 ] Therefore, t he guardianship order made on November 9, 2015, regarding the children L.R.S. born on April 24, 2008, and S.L.L. born on September 8, 2012, continues to be of full force and effect but the access provision is varied. The children L.R.S. and S.L.L. shall have access to their parents as provided for in paragraph 70 of this decision.

DATED at Moncton, New Brunswick this 17 th day of October 2022. __________________________________________ Justice Marie-Claude Bélanger-Richard Court of King’s Bench of New Brunswick Family Division