THE MINISTER OF SOCIAL DEVELOPMENT, Applicant. – v. –, 2022 NBKB 209

s FDM-384-2022 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF MONCTON Date: November 9, 2022 Neutral Citation: 2022 NBKB 209 BETWEEN: THE MINISTER OF SOCIAL DEVELOPMENT, Applicant. – and – C.M.A., A.S. and J.D.K., Respondents. DECISION BEFORE: Madam Justice Marie-Claude Bélanger-Richard AT: Moncton, N.B. DATES OF HEARING: October 27 and 28, 2022 DATE OF DECISION: November 9, 2022 APPEARANCES: Karen LeBlanc for the Applicant Joshua Adams for the Respondent C.M.A. Respondent A.S. represented himself Respondent J.D.K. did not appear

Summary: Guardianship granted with right of access for the children

BÉLANGER-RICHARD, J.: OVERVIEW [ 1 ] The best interests of two children are at stake in this matter. The two children are A.J.A. (“AJA”) born on […], 2018 and A.S.A. (“ASA”) born on […], 2015. The Minister of Social Development (the “Minister” or the “Department”) seeks a guardianship order regarding the two children. The Respondents C.M.A. and A.S. oppose the Minister’s application but recognize that they are not ready at this moment to care for the children. They ask the Court to issue a custody order for a period of up to six months.

J.D.K. did not participate in the proceeding. [ 2 ] The Respondent C.M.A. is the biological mother to the two children. Initially and because he was named on her birth certificate, the Respondent J.D.K. was identified as the biological father of ASA. However, DNA testing was done, and it was confirmed that the Respondent A.S. is indeed the biological father to the two children. J.D.K. is still named as Respondent in this matter because he acted in loco parentis to ASA for a short period of time.

FACTS Events leading to the children’s apprehension [ 3 ] The Department, which includes the Elsipogtog Oetjgoapeniag Elnoei Family Services Agency (a community social service designated by the Minister), has been involved with this family since 2018. In 2018, there was one reported incident of a lack of supervision by the mother regarding ASA. As well, there were concerns raised at the time of AJA’s birth (in […] 2018) regarding the mother’s mental health, possible intoxication, and lack of supervision.

However, the mother reached out for services and the Department closed its file in June 2019. [ 4 ] Between January and July 2020, regular referrals were made by different people (RCMP, paramedics and service providers) to the Department regarding the mother’s mental health. While the mother admits of some mental health issues such as depression and Attention Deficit Hyperactivity Disorder, she is not certain about any other diagnosis. The affidavit evidence reveals that the mother could have been diagnosed with Panic Disorder with Agoraphobia and Post-Traumatic Stress Disorder.

The mother agrees that she was prescribed medication to address some mental health issues. [ 5 ] Not only were there concerns about the mother’s mental health, but referrals were made in early 2020 about the mother’s consumption of marijuana and lack of supervision regarding her children. [ 6 ] In April 2020, a Safety Plan was implemented.

One of the mother’s friends was to take care of the children and if he were to become overwhelmed, he was to call Mental Health Services, the Department and/or one of the mother’s sisters. [ 7 ] By summer 2020, the mother was staying with her own mother, C.A., because she had been kicked out of her apartment due to uncleanliness. In September 2020, the mother and the Department signed another Safety Plan. According to that Safety Plan, the mother was to take her medication and to ensure the children lived in a safe place. Unfortunately, the Safety Plan did not last because the mother and C.A. had an argument.

The mother and the children had to leave. [ 8 ] The mother and the children were brought to J.D.K.’s residence and another Safety Plan was put in place. This third Safety Plan provided that the children would remain in the care of J.D.K. if the mother decided to leave. The mother did not follow the Safety Plan and around February 2021, the mother left with AJA. ASA, the oldest child, remained under the care of J.D.K. until May 2022. At the time, J.D.K. was allegedly ASA’s father because his name was on her birth certificate.

AJA’s apprehension [ 9 ] On April 14, 2021, following a referral reporting neglect, the social worker Claudette LeBlanc and two colleagues attended the residence where the mother was residing. Ms. LeBlanc took the mother to the hospital as her arm was swollen due to a fight with her brother. On the way to the hospital, the mother admitted not having a plan for housing as she had recently lost her apartment in Moncton. Upon arrival to the hospital, Ms. LeBlanc suggested to bring AJA back to Elsipogtog and to inquire about housing for them. The mother became hysterical and screamed at Ms. LeBlanc.

Eventually, the mother got out of the vehicle and Ms. LeBlanc left with the child AJA. [ 10 ] Because of concerns of inadequate supervision, neglect and drug use, the Minister took protective care of AJA on April 19,

2021. The mother threatened to hurt Ms. LeBlanc. Consequently, the Notice of Protective Care had to be served on a third party who handed the document to the mother. Ms. LeBlanc told the mother the child would be in care for only one month so the mother would have time to see a doctor and to settle into a new apartment. The mother agreed to sign a one-month custody agreement. The child AJA went residing with foster parents, Charmaine and Dean Levi. Housing for the mother was arranged through Miramichi Youth House Inc., and the child AJA was then returned to her mother on May 11, 2021. During her testimony, Ms.

LeBlanc explained that the child was returned to the mother’s care because there was constant supervision at the Miramichi Youth House, and they could assist the mother with daily tasks. [ 11 ] Unfortunately, several referrals were made to the Department between May 20 and June 7, 2021, outlining concerns of neglect, including several instances where the child AJA, who was not yet 3 years old, had been left alone for extended periods of time or unattended in hazardous situations.

The mother was also facing eviction from the Miramichi Youth House as she was not following the rules. [ 12 ] Due to these ongoing concerns, Ms. LeBlanc contacted the police to request assistance for apprehending the child AJA. When Ms. LeBlanc arrived at the Miramichi Youth House and explained to the mother the concern about the lack of supervision, the mother became angry and threatened Ms. LeBlanc. Eventually, the mother calmed down and Ms. LeBlanc left with the child AJA. A Notice of Protective Care regarding AJA was issued on June 23, 2021.

AJA was placed with the same foster parents, Charmaine and Dean Levi. ASA’s apprehension [ 13 ] From the time her mother left her (around February 2021) until May 2022, the child ASA lived with J.D.K. There is no evidence that the mother visited or saw the child ASA during that period. In May 2022, the Department was notified that J.D.K. was passed out in his vehicle and the child ASA was without a sober caregiver. The child ASA was apprehended the next day. In the following days, visits were made to J.D.K.’s residence.

There was no answer or when he was there, he appeared under the influence. [ 14 ] On May 24, 2022, a Custody Agreement was signed by the mother and A.S. in which it was agreed that the maternal grandmother, C. A., would take care of ASA. It appears that J.D.K. never signed a Custody Agreement as he was passed out or did not answer the door when the Department attempted to meet with him.

The Minister’s concerns about the mother [ 15 ] Since AJA’s apprehension in April 2021, the Minister has continued to have concerns about the mother’s ability to take care of her children and more specifically, the following concerns: • lack of supervision regarding the children • parenting issues • mental health • drug use • lack of housing stability [ 16 ] With regard to lack of supervision, I have already mentioned what the Minister reported as an ongoing concern since 2018 and particularly, the incidents that happened at the Miramichi Youth House.

During her testimony, the mother minimized the incidents without demonstrating any serious worries about her child’s safety and well-being. It was disconcerting. [ 17 ] With regard to parenting issues, the mother was offered twice to take parenting classes. Each time, she refused. She was also offered private parenting lessons, but once again, the mother was not interested. During her testimony, the mother mentioned her lack of transportation as an excuse for not attending parenting classes.

She however added that she did not believe parenting classes would have made things better. [ 18 ] As mentioned earlier and admitted by the mother, she has been suffering from depression for many years. She also has Attention Deficit Hyperactivity Disorder. Since she consulted with a psychiatrist, Dr. Sadiq, she has seen him three or four times. Dr. Sadiq prescribed her medication, and the mother claims she has been taking her medication in the last year. The mother testified at the hearing she has been feeling better in the last two months.

However, she could not explain what improvements she has noticed or why it has been in the last two months only she has been feeling better.

[ 19 ] The other concern raised by the Minister is the mother’s drug use. Between March 1 and May 27, 2022, the mother tested positive a few times for amphetamines and methamphetamines as well as marijuana or tetrahydrocannabinol (THC). [ 20 ] More recently on June 10, 2022, another drug screening was performed, and again the mother tested positive for amphetamines, methamphetamines, THC and marijuana. The mother does not deny taking illicit drugs in summer 2022. She testified it was “just a weekend thing” but could not elaborate as to what she meant.

Although she tested positive for drugs, the mother claims that she was still sober and fit to look after her children. [ 21 ] Finally, the other significant concern for the Minister is the mother’s lack of housing stability. Recall that the Department helped the mother to obtain housing at the Miramichi Youth House in May 2021. At the end of June 2021, the mother was evicted from that place and went to Crossroads for Women in Moncton for a few days. She left Crossroads for Women on July 7, 2021 without notifying them about her intention. [ 22 ] On July 9, 2021, the mother was seen in the community of Elsipogtog.

On July 15, 2021, Ms. LeBlanc saw her loading up a vehicle with some belongings. The mother told Ms. LeBlanc to stop looking for her and made threats to Ms. LeBlanc. Ms. LeBlanc told the mother to contact the office if she wanted visits with AJA. [ 23 ] Despite being invited to AJA’s birthday on […] at her foster residence, the mother did not attend. No explanation was provided by the mother. From August 24 to 31, 2021, the mother was hospitalized at the psychiatric unit of Moncton Hospital.

According to the social worker Claudette LeBlanc, she spoke with the mother on August 25 and the mother told her she did not have a place to live. [ 24 ] In September 2021, the mother was apparently looking to move to Miramichi so she could continue her relationship with her boyfriend (no name was mentioned). Efforts were made by the Department to have the mother going back to the Miramichi Youth House, but the mother needed to abide by some conditions, such as following the house rules, providing urine samples for drug testing, and attending appointments with her psychiatrist, Dr. Sadiq.

Between October 28 and December 10, 2021, the social worker Claudette LeBlanc could not speak with the mother despite attempts made to reach and locate her. In December 2021, the Department was told the Miramichi Youth House could not accommodate the mother as she was over the age of 19. [ 25 ] On December 10, 2021, the mother attended a supervised visit with her child AJA and during the visit, she stole makeup from a store.

In addition to being prohibited to go to a store during visits, the mother was warned about her use of inappropriate language during visits and the need for her to be ready for the visits. [ 26 ] In March 2022, the mother told the social worker Claudette LeBlanc that she had been kicked out of her mother’s residence and was moving in with her boyfriend T.K. It appears that visits took place at T.K.’s house for some time in spring 2022. [ 27 ] In late September 2022, the mother went to the Miramichi Emergency Centre for Women following an incident of domestic violence between her and her boyfriend T.K.

The mother later reported to Ms. LeBlanc that she was kicked out of the Miramichi Emergency Centre for Women as other residents told lies about her. Ms. LeBlanc suggested to the mother to go to another shelter, but she refused. [ 28 ] Between September 21 and October 6, 2022, Ms. LeBlanc was unable to locate the mother despite asking relatives and close contacts for her whereabouts. [ 29 ] At the hearing, the mother testified that she currently resides at a friend’s residence. She has only been there for a week. She admits she is homeless and needs to continue moving for the time being.

The mother complains that apartments are either not available or too expensive to rent. It is also a struggle for her to find a place because she has no phone and no internet. Her name is currently on NB Housing list. [ 30 ] Ms. LeBlanc testified about numerous efforts made by her and other people to obtain housing for the mother. She also mentioned that NB Housing offered to the mother an apartment in April 2020 or 2021, but the mother declined the offer. Consequently, the mother’s name was removed from the list and another application had to be made for her to be again on NB Housing list. Ms.

LeBlanc testified that it has been difficult to communicate with the mother because of her constant moves. The Minister’s concerns about J.D.K. [ 31 ] Since the child ASA has been in the care of the Minister, J.D.K. has not made any contacts with the Department to request supervised visits with the child except during a conversation on September 18, 2022. On that day, J.D.K. asked to have a visit, but Ms. LeBlanc noticed he had slurred speech during the conversation. [ 32 ] J.D.K. did not attend any of the hearings in this proceeding and he was not present at the final hearing.

Except for that period when he took care of ASA, J.D.K. has not been involved in her care and has shown no interest in pursuing a relationship with the child. The Minister’s concerns about A.S. [ 33 ] As to A.S., the issue is his lack of involvement in the children’s life. The affidavit evidence does not reveal what, if any, involvement A.S. had with the children prior to June 2021. A.S. claims he was living with the mother until AJA’s apprehension in June 2021. There is no evidence A.S. requested visits with AJA following her apprehension until A.S.’s incarceration.

As to ASA, A.S. testified he only saw her occasionally prior to June 2021, because J.D.K. denied him the right to visit the child. [ 34 ] In September 2021, Ms. LeBlanc learned that A.S. was on house arrest. She spoke with him on September 27, 2021 about the proceeding the Minister intended to file concerning AJA. Ms. LeBlanc did not speak with A.S. again until February 2022. In February 2022, Ms. LeBlanc met with A.S. at the Moncton Court House to serve him with documents. She was then informed that A.S. had been arrested on December 13, 2021 for resisting arrest and assaulting a police officer.

A.S. is still incarcerated to this day, having pleaded guilty to charges of break-and-enter and assault. A.S. expects to be released in April 2023. [ 35 ] At some point during his incarceration, A.S. asked for visits. However, at the time, in-person visits for children under the age of 12 were not allowed due to restraints imposed by the Covid-19 pandemic. Ms. LeBlanc told A.S. she would investigate the possibility of virtual visits. Unfortunately, it has yet to happen. A.S. expressed frustration about this at the hearing.

Visits between the mother and the children [ 36 ] Despite issues with transportation, it appears that the mother has attended many of her supervised visits with the children. As stated in Ms. LeBlanc’s Affidavit sworn to on June 27, 2022, the mother did not attend 4 out of 24 scheduled visits between July 30 and November 19, 2021. Two of her non-attendance were due to her hospitalization. Between January 11 and June 16, 2022, the mother attended 18 of her 24 scheduled visits. Some visits were also on hold during that period because of Covid-19 issues. [ 37 ] At the hearing, Ms.

LeBlanc qualified the mother’s attendance to visits as sporadic. She explained that the mother’s pattern is to attend a few visits, then to stop for two or three weeks or to skip one visit. The mother refused to provide any explanations to Ms. LeBlanc why she would miss a visit. [ 38 ] The foster parents reported to Ms. LeBlanc that AJA has had some setbacks in the recent months such as wetting herself and having fits of crying. These reactions by AJA have been noticed when AJA was upset because of a visit being cancelled or not attended by the mother. Ms.

LeBlanc has requested counselling and therapy for AJA. [ 39 ] Recently, the supervised visits have been reduced to two visits a week with a duration of 2 to 3 hours for each visit. As the mother appeared to be overwhelmed and to struggle to attend to both children during visits, the Department decided in September 2022 to

schedule separate visits for each child. Consequently, the mother now has one visit per week with each child. The mother claims that it is difficult to prove she is able to take care of her two children because of that decision. While the mother agrees the children were demanding a lot of attention, she explains that it was due to the fact they had not had visits all together for a long time. Ms. LeBlanc agreed that this was a plausible explanation to the children’s behaviour during visits. [ 40 ] The visits have been occurring in the community or at the Department office.

The children look forward to the visits with their mother. Ms. LeBlanc mentioned that at times, the children are upset and crying at the end of a visit because they do not want to leave their mother. Placement and current situation

[ 41 ] When she was apprehended in June 2021, AJA was placed with Charmaine Levi. On October 19, 2021, she was moved to the home of F.A., one of the mother’s sisters. By February 2022, F.A. expressed concerns because AJA’s presence in her home was causing difficulties with her son. Therefore, on April 1, 2022, AJA was moved back to Charmaine Levi’s house. [ 42 ] Unfortunately, within a few days, AJA had to be moved again and she went to live with T.A.. In May 2022, T.A. was no longer able to look after her.

AJA was therefore moved with L.A. and J.A. on May 23, 2022. [ 43 ] Since May 2022, AJA has continued to stay with L.A. and J.A. in Bass River. J.A is a member of the Band Counsel and L.A works on the reserve as a Crisis Line Counsellor. The family participates in cultural activities. AJA continues to have contacts with her extended family. [ 44 ] Since May 2022, the child ASA has continued to be under the care of her maternal grandmother, and she has contacts with her extended family.

According to her maternal grandmother, ASA does well at school and her dental needs have been attended to. [ 45 ] As pointed out by the mother, the children have not been kept together in the same foster home. Ms. LeBlanc mentioned there was no foster home available where the two children could be cared together. POSITION OF THE PARTIES [ 46 ] The Minister seeks a guardianship order regarding the two children, claiming it is in their best interests.

The Minister supports a right of access for the children with their parents, C.M.A. and A.S. [ 47 ] C.M.A. admits she is not currently ready to take care of the children due to her housing issue. She proposes that a custody order for a period of up to six months be granted in favor of the Minister and during that period, she plans to find a place to live with her children, probably with family members. [ 48 ] While he supports a custody order for a period of up to six months, A.S. would prefer to have one of his sisters looking after the children until he is released from jail.

A.S. plans to have an apartment soon, i.e., prior to his release. When he is released, he wants to take care of his children. ISSUE [ 49 ] In this matter, I must decide whether the best interests of the children command a guardianship order or a different order in accordance with the Family Services Act , S.N.B. 1980, c. F-2.2 (the “ Act ”).

LAW AND ANALYSIS [ 50 ] The Court has the authority to issue a guardianship order pursuant to section 56(1) of the Act which reads as follows: 56(1) The court may make a guardianship order transferring from a parent to the Minister on a permanent basis the guardianship of a child, including the custody, care and control of, and all parental rights and responsibilities with respect to, the child. [ 51 ] In the present matter, the children have been in the care of the Minister for a period of less than 24 months.

For AJA, she has been in the Minister’s custody for a period of approximately 17 months and for ASA, that period is approximately 5 months. As requested by the parents, a custody order for a period of up to six months could therefore be issued pursuant to section 55(1) of the Act as the statutory limit of 24 months for children to be in the care of the Minister has not been reached.

While I agree that a custody order for a period of up to six months is a possible option in this matter, it does not mean that I am obliged to delay or dismiss the guardianship application because the 24-month period has not yet elapsed. In addressing the same issue, Justice Colford eloquently summarized the law in New Brunswick (Minister of Social Development) v. D.F. , 2022 NBQB 39 , as follows:

171 This Court has on many previous occasions found that the granting of guardianship to the Minister was warranted prior to the expiration of the maximum 24 months permitted under s.55(2) of the Act , (see Minister of Social Development v. S.T. and D.B.S., unreported, FDSJ-531-2016); Minister of Social Development v. E.T. and K.A ., 2020 NBQB 148 (NBQB) ; Minister of Social Development v. D.M. and S.D ., 2020 NBQB 225 (NBQB) . 172 The Court of Appeal has very recently weighed in on the issue and provided further direction. In Minister of Social Development v.

S.H. and C.H. 2021 NBCA 56 , the Court was asked to consider, inter alia , whether a trial judge must prior to the expiration of the 24- month period set out in s.55(2) of the Act , dismiss or delay guardianship applications when faced with evidence that a parent may make further progress as a result of the measures employed by the Minister.

The essence of the appellant mother’s argument in that case was that a trial judge is required as a matter of law to find that all other measures have failed before a guardianship order can issue. 173 Acknowledging that the Act requires the state to attempt reunification before permanently extinguishing parental rights, the Court found the ground of appeal to be without merit.

The trial judge’s decision not to grant additional time was determined to be “hers to make and it was entitled to deference”, (para. 22). 174 In coming to that conclusion, the court had this to say at paragraphs 15 and 18 of the decision: 15. If we were to accept the mother’s submission, we would be reweighing the evidence on which the judge based her decision that a guardianship order was then in the best interests of the children. We would be compelled to conclude the judge erred in her analysis. We would be adopting an

interpretation of the Act that would prohibit the Minister, in these cases from proving its case for a guardianship order until the twenty four - month period has elapsed when there is evidence of some progress in parenting skills. The mother was unable to provide us with jurisprudence to support this argument, and, with respect, it is rejected. In fact, in S.G. and E.S. v. Minister of Families and Children , 2019 NBCA 66 , [2019] N.B.J. No. 240 (Q.L.) , Green J.A. specifically discussed this point.

In that case, the child had already been in the Minister's care for twenty four months but, in upholding the judges decision to grant the guardianship order, Green J.A. observed, although the application judge acknowledged the mother's progress with respect to finding housing, maintaining a clean home, budgeting, spending, and meal planning, and the strong bond between the mother and the child, the judges “preoccupation” was with the mother’s parenting skills and her ability to ensure the child’s safety" 18.

In this case abundant historical evidence chronicled child neglect and domestic violence dating back to 2011. I agree with the mother's submission that the Act requires the state to attempt family reunification before any other measures are taken to permanently remove children from parental care. In New Brunswick (Minister of Health and Community Services) v. C. (G.C.) , [1988] 1 S.C.R. No.48 (QL), L’Heureux-Dube J. acknowledged the

preamble to the Act declares that the children should only be removed from parental care either partly or entirely when all other measures are inappropriate (para 13 cited to QL). This is the distinction. The mother submits that all other measures must have failed before the children can be permanently removed from her care. This is not how I interpret the law. The Act states that children should only be removed from parental supervision in accordance with the provisions of the Act .

Emphasis Added [ 52 ] Whatever order I may decide to make, the Act mandates that the paramount consideration in such matters is the best interests of the children. Section 53(2) of the Act reads as follows: 53(2) When disposing of an application under this Part the court shall at all times place above all other considerations the best interests of the child. [ 53 ] The definition of best interests of the child is found in

section 1 of the Act : “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; [ 54 ] I will now address each factor and consider the evidence submitted in this case.

a) The children’s mental, emotional and physical health and their needs [ 55 ] There is no evidence that the children currently have major health issues. They appear to do well under the Minister’s care. The only recent concern is about AJA’s emotional state as she reacts to her mother’s sporadic attendance at visits. The Minister intends to provide her with the necessary counselling. [ 56 ] Neither parent is ready and available to take care of the children right now.

While A.S. alleges he will be capable to look after the children upon his release in April 2023, there is no evidence he has been involved in the children’s lives and has taken care of them and their needs prior to their apprehension. Prior to his incarceration in December 2021, A.S. did not visit the children and did not request parenting time with them. I have therefore no evidence about his ability to parent these children. I understand he is the biological father of these children and wishes to look after them.

However, his lack of involvement raises serious concerns about his parenting abilities and bonding with the children. [ 57 ] As to the mother, she has shown a lack of supervision towards her children and her explanations fell short of being comforting. She did not appear to understand the seriousness of the incidents where her children were left unsupervised. The mother also appears to have an issue with drugs, but denies it affects her parenting ability. While the mother asks the court to give her another six months to address her housing issue, her most concrete plan is to live with relatives.

However, since 2020, the mother has tried many times to live with family members, but whatever her housing arrangements were, problems arose, and the mother had to move again. The mother admits she is homeless, and she goes back and forth to shelters. While I have a lot of empathy for the mother’s difficult situation, she has still to assume a part of responsibility concerning her current situation and to give priority to her children’s well-being and needs by taking steps to address her mental and personal issues.

Although the mother has attended most of the visits with the children and the visits are not the major issue in this case, there are times when the mother disappeared for extended periods, and nobody knew where she was. The mother did not provide any explanation for her absences and consequently, left others to look after her children’s needs and well-being without contacting the children.

b) The children’s views and preferences [58] The children are too young for the court to ascertain and consider their views and preferences.

c) The effect of any disruption on the children’s sense of continuity [59] The child AJA has had unstable living accommodation since her birth, moving from one place to another with her mother andmoving from one foster home to another under the Minister’s care. As to ASA, she has been under the care of her maternal grandmothersince her apprehension in June 2022 but with her mother, she also moved to different places. In addition to these constant moves, thechildren have not been placed in the same foster home. In other words, there has been a lot of disruption in the children’s lives prior andafter apprehension.

However, the Minister has maintained their ties with their First Nations community by placing them with a FirstNations family or relatives. In my opinion, it is now time to give to the children stability for them to develop a sense of continuity andsecurity as soon as possible.

d) The children’s family ties [60] There is no question that the parents, C.M.A. and A.S., love their children. The children certainly have a bond with their motherconsidering they are eager to go to visits, they enjoy the visits with the mother, and they would like her to stay longer. ConsideringA.S.’s lack of involvement in the children’s life prior and since his incarceration in December 2021, I am concerned that the childrenhave not developed a bond with their father.

Unfortunately, A.S. might be more a stranger than a parental figure for these children at thistime. [61] As much as love is important in one’s life, love is not enough in the present circumstances. As stated by Justice Petrie, in NewBrunswick (Social Development) v. N.C., (NBQB), at para. 131, “(…) being an appropriate or “good enough” parentis more than loving your child. There is also the serious responsibility of ensuring that the children are properly taken care of. It is not astandard of perfection but one of a reasonably acceptable level.” [62] Similarly, in The Minister of Social Development v.

G.B., 2012 NBCA 62, at para. 36 d), Justice Quigg stated as follows: Although love and affection are important criteria to consider when assessing the best interests of the child, they are not to supersede theother factors enumerated in the definition of best interests of the child. In this case, the mother’s inability to put her child first in her life,her lack of capacity to parent and the instability of her living accommodations undermine the mutual love and affection that exists.

e) The parties’ plans for the children [63] The Minister plans to have the children placed with or adopted by a loving and caring family. Counsel for the mother argued thatthe Minister’s plan lacked details. While I have not heard any evidence about the adoption process, it is recognized that interestedfamilies go through a rigorous approval process before being considered potential adoptive families.

There is no reason to doubt that aloving and caring family would be approved and chosen to fulfill the children’s needs and to raise them as their own children. [64] The mother hopes that a period of six months would give her time to find appropriate housing to look after her children. However, she has no plan to address her other issues such as her mental health, drug use and parenting abilities. The father A.S. claimsthat upon his release from jail, he will have a place to live with the children, and he will be able to look after them.

While he claims thatone of his sisters could help looking after the children, none of them has come forward to support his plan. (

f) The children’s need for secure environment to develop their full potential and to ensure they become useful andproductive members of society [65] While one child has continued to experience instability even after her apprehension, both children have been safe and secureunder the care of the Minister. The Minister is looking appropriately after the children’s needs and both children are doing well. On theother hand, neither parent can currently provide a secure environment. Their respective long-term plans are not based on anythingconcrete.

Again, I understand that the parents believe in their heart to be able to provide a secure environment to their children for themto develop and to achieve their full potential. However, I fail to see reasonable assurances that could convince me that the parents’ plansmay work in the near future and provide to these children the appropriate and stable environment they need for their development andwell-being.

g) The children’s cultural and religious heritage [66] The mother has not raised this factor as an issue. A.S. mentioned he was Acadien and one of his sisters live close to Elsipogtog. However, there is no evidence that the parents have done anything to familiarize the children and enhance their knowledge about theirrespective culture. Both children are currently living with members of their First Nations community and are being exposed to thatculture and heritage.

I am satisfied the Minister is conscious of her obligations and responsibilities in that regard. [67] On the basis of the above analysis and conclusions, I am satisfied that a guardianship order must be granted. I have consideredthe possibility of granting a custody order for a period of up to six months to the Minister, but I am of the opinion that any further delayto a final resolution of this matter is not in the best interests of the children.

Despite the delay in hearing this matter, the parents have notdemonstrated any progress or improvement in their personal situation which might have convinced me that a few more months wouldallow them to be in a position of caring for their children. RIGHT OF ACCESS [68] In the present matter, the Minister supports a right of access for the children to their parents, being C.M.A. and A.S. On the basisof Minister of Health and Community Services v.

M.L. and R.L., (SCC), [1998] 2 S.C.R. 534 (SCC), I am satisfied thatthis is one of the rare cases where a right of access should be reserved to the children with their parents considering the relationship theyhave developed with their mother, the ties the father has with the community where the children live, and considering their best interests. [69] Therefore, a right of access is reserved to the children AJA and ASA to have access to their parents, C.M.A. and A.S., for as longas such access remains in their best interests and subject to the discretion of the Minister of Social Development, adoptive parents and/ora permanent caregiver as designated by an Order made pursuant to s. 56.1(1) of the Act.

DATED at Moncton, New Brunswick, this 9th day of November, 2022. __________________________________________ Justice Marie-Claude Bélanger-Richard Court of King’s Bench of New Brunswick