THE MINISTER OF SOCIAL DEVELOPMENT Applicant v. E.T., 2023 NBKB 227

2023 NBKB 227 COURT FILE: FDF- 371-23 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF FREDERICTON BETWEEN: THE MINISTER OF SOCIAL DEVELOPMENT Applicant and E.T. Respondent BEFORE: Madam Justice Krista L. Colford AT: Fredericton, New Brunswick DATES OF HEARING: December 4, 2023 DATE OF DECISION: December 14, 2023 APPEARANCES: Jayne Veinotte for the Applicant Sophie Noël for the Respondent E.T.

COLFORD, J. I. OVERVIEW [ 1 ] In this proceeding, the Minister of Social Development seeks a guardianship order pursuant to section 56(1) of the Family Services Act S.N.B. 1980, c.F-2.2 (the “ Act ”), in relation to the child C.T. born [...], 2023. Despite the child only having been in the Minister’s care for five months, t he Minister believes that a guardianship order is the only way to achieve safety, stability, and permanency for this child. [ 2 ] The Respondent, Ms. T is the biological mother of the child.

She opposes the Minister’s request for guardianship and seeks a custody order extension based on the fact C.T. has been in the Minister’s care for such a short period of time. In her view the Minister has not met the heavy evidentiary burden required for a guardianship order to issue. [ 3 ] In the event the Minister is successful, she asks that a right of post guardianship access be preserved for the child on her behalf. [ 4 ] The matter proceeded to hearing on December 5, 2023. Ms. T attended represented by counsel.

The Minister called one witness and relies on seven affidavits, two of which are historical. [ 5 ] Ms. T did not file a pleading or affidavit in response to the Application. She did testify on her own behalf. She called no further witnesses. [ 6 ] I have considered the totality of the affidavit and viva voce evidence tendered but have summarized only that most relevant to the issues presented. II. FACTS [ 7 ] The Minister has a longstanding history with Ms. T that dates back to approximately 2016. She is the biological mother of four children, three of which are the subject of prior guardianship orders.

Those children range in ages between four and six years of age. [ 8 ] C.T., the child at issue with respect to the Minister’s current application is just shy of six months of age. [ 9 ] Less than a month after birth, on July 20, 2023 she was placed into the protective care of the Minister amid concerns related to Ms. T’s drug use, the condition of her home and the fact Ms. T was not prepared to care for the child outside of the hospital setting.

The evidence confirms that she lacked necessities for the child such as a crib, car seat, clothing, and diapers. [ 10 ] Additionally, C.T. at the time she was born screened positive for amphetamines. Ms. T denied this was the result of any drug use on her part. A Permanency Planning Conference was held on July 24, 2023, Ms. T unfortunately did not attend. [ 11 ] She did oppose the taking of protective care and a hearing was held on August 14, 2023.

An oral decision was rendered on August 18, 2023 whereby the Court determined the Minister had reasonable and probable grounds for the taking of protective care and that the child needed to remain in the interim protective care of the Minister pending disposition of the Application for guardianship. [ 12 ] This court has had opportunity to author several decisions over the last three years relating to previous custody and guardianship applications in relation to Ms. T’s three other children. A review of those decisions reveals that the Minister’s historical issues with Ms.

T were grounded in concerns related to her mental health, addictions, housing instability, and criminality. [ 13 ] The Minister on this application argues that the pattern of drug use, transience and criminal activity that grounded the Minister’s previous applications, remains current. It is for this reason the Minister moved directly to a guardianship application in relation to C.T. A. The Evidence [ 14 ] Ms. Mandy Arsenault is the lead social worker on the file. She has been involved with this family since the taking of protective care.

She testified at the hearing and submitted affidavit evidence sworn to on November 24, 2023. Ms. Arsenault presented as a credible witness. Her affidavit and viva voce evidence were consistent. She was straight forward and forthright in response to both direct and cross examination questions. I accept her evidence as truthful. [ 15 ] Ms. Arsenault’s evidence identifies Ms. T’s drug use, housing instability, and criminality as the main issues on which the Minister relies for the relief it seeks. Ancillary to that she testified to the struggles she has faced engaging Ms.

T in meaningful case planning. [ 16 ] A case plan was executed on July 26, 2023 wherein one of the identified objectives was to attempt, pending final disposition of the application, to enhance family functioning. [ 17 ] As part of that objective the Minister was asking Ms. T to do the following:

• abstain from illegal non-prescription drugs when caring for the child; • participate in random drug testing as arranged by the Minister • self-refer to addiction and mental health services to address concerns related to her mental health and substance abuse and follow through with any recommendations • demonstrate that she can maintain safe and stable housing free from drugs and criminal activity • cooperate with unannounced visits as deemed necessary by the Minister or her delegate • sign consents for the release of information requested by the Minister to ensure disclosure of information between the ministry and service providers • inform the minister within 24 hours of any and all changes in the composition of her household change of address or telephone number • work cooperatively with the Minister’s representatives and service providers [ 18 ] The case plan was reviewed with Ms.

T in or around August 1, 2023. She advised Ms. Arsenault that the items set out in the case plan was “not what she needed to do”. Rather, she wanted to focus on finances and housing. She did not need a parent aide, or addictions counselling, she just needed transportation and assistance with housing. She reiterated this position in her viva voce evidence indicating that the Minister and the system have failed her on this front. In her view she is a competent parent who just needs a home, resources, and access to transportation. [ 19 ] In her meeting with Ms.

Arsenault in August she expressed her distrust “of the system” and in particular social workers in Fredericton. She feels they are “out to get her” . [ 20 ] The evidence of Ms. Arsenault is that Ms. T would often “go missing” for periods of time, not responding to her attempts at communication. Her last contact with Ms. T, prior to the hearing was October 24, 2023. Accordingly her lack of any meaningful engagement with the Minister and her daughter over the last several months reinforces her position that a guardianship order is in C.T.’s best interests. 1.

Drug Use /Addictions and Mental Health [ 21 ] The only evidence before this court with respect to Ms. T’s mental health came from her own testimony and a reference to PTSD. The background to this declared diagnosis was not set out in the evidence, but the emotion displayed by Ms. T in her evidence surrounding the issue, convinces the court she recognizes underlying mental health issues that need to be addressed. She testified she did not however feel quite ready to face them. She did advise Ms.

Arsenault in August that she would speak to a counsellor as long as it was someone she was comfortable with. [ 22 ] Other than a reference to an upcoming appointment however, the evidence did not confirm any actual engagement with mental health counselling since the taking of protective care. [ 23 ] Ms. T confirmed a good relationship with her probation officer who appears to be a source of support for Ms. T. In her words she is “helping her to get on her feet”, advising of programs such as “Program Stamp”. However again the evidence did not confirm any actual participation in these programs. [ 24 ] Ms.

T admittedly has a long relationship with illicit drug use. She has been very candid with the Minister in the past with respect to her use of cocaine and methamphetamines. She has admitted to use during her previous pregnancies. [ 25 ] In this instance Ms. T denied drug use during her pregnancy with C.T., but for one occasion early on in the pregnancy. In the face of her daughter’s positive screen for amphetamines, Ms. T was adamant it was not due to her using.

Rather, she explained it was the result of third party use and pointed to those in the vehicle that transported her to the hospital when she went into labour. She disclosed this position to the Minister at the time C.T. was born, she maintained it at the protective care hearing and at the hearing of the Application. [ 26 ] The Minister’s evidence confirms that screens completed by Ms. T on August 10, 2023 and October 17, 2023 returned positive for both amphetamines and methamphetamines. Ms. T does not dispute the positive screens. In fact she concedes regular ongoing drug use.

In her testimony she was forthright in stating that she is still currently actively using illicit substances approximately twice weekly. She explained that drug use is a coping mechanism for her when things are not going well in her life. Simply put, if she gets stressed she will use. [ 27 ] Despite this admission she does not believe that her drug use presents any risk to the security of her daughter.

She stated that while she is a drug user she is not reliant on drugs to function day to day and she never uses when children are in her care. [ 28 ] At the time protective care was taken and again in October of this year, the Minister offered Ms. T a referral to mental health and addictions including detox programming. Ms. T declined the service on both occasions. [ 29 ] Her position is clear, she does not have a problem with drug use that requires intervention or management. She stated definitively that “drugs are the least of my worries.” 2. Criminality

[ 30 ] Ms. T was incarcerated for approximately five weeks in April/May of this year. She was released just a few weeks prior to C.T.‘s birth. The Minister’s affidavit evidence indicates this was not her first incarceration. [ 31 ] She is also currently facing numerous outstanding charges before the provincial courts in Miramichi, Woodstock, and Fredericton.

These charges are not insignificant and include possession of stolen property, dangerous driving, flight from police, driving while her license is suspended, assault, possession of methamphetamines, a failure to attend court, and breach of probation. [ 32 ] Most recently Ms. T was apprehended on an arrest warrant on November 21, 2023 and released on conditions following a bail hearing on November 24, 2023. [ 33 ] In total there are approximately 21 outstanding charges against Ms. T. She has upcoming court appearances this month and in February of 2024. [ 34 ] Ms.

T does not refute these ongoing criminal matters or the potential for future incarceration, but stated that they are mainly

summary conviction offenses that she is not concerned about. 3. Housing Instability [ 35 ] Central to Ms. T’s struggles and one of the main concerns for the Minister is Ms. T’s ongoing financial insecurity and lack of stable housing. Ms. T, openly recognizes that she has not had stable housing for a very long time. [ 36 ] The evidence did not disclose where she was residing prior to her incarceration in May of this year, however it establishes that at the time C.T. was born she was sharing a home with a friend in the Fredericton area.

It was this home that the Minister determined (at the time protective care was taken) posed a safety risk to C.T. [ 37 ] The Minister’s evidence indicates the ceiling of the bedroom where she and C.T. would be sleeping was open to the outdoors with exposed insulation. There was also exposed wiring in the home. Ms. T testified she worked hard to renovate this home so it would be acceptable to the Minister. [ 38 ] Ultimately however the Minister did not have opportunity to work with Ms. T on resolving those safety issues.

On the day the court rendered it’s decision on protective care, this housing arrangement broke down. Apparently the home owner had his own struggles with law enforcement. [ 39 ] This left Ms. T homeless. She advised Ms. Arsenault of her intention to relocate to another friend’s home in St. Stephen. She asked Ms. Arsenault to transfer her file to a St. Stephen social worker. Ms. Arsenault was not opposed and asked Ms. T to confirm when she had made the move. [ 40 ] Ms. T relocated to St. Stephen at some point in late August.

On August 29 th she confirmed she was residing with a friend for a time and would have access to a vehicle. She further advised that she was trying to get into Transition House. [ 41 ] Subsequently, only four weeks later on September 29, 2023, she advised Ms. Arsenault that she was now working on Grand Manan Island and again “living with a friend”. Things changed again on October 16, 2023 when she advised Ms. Arsenault that she was relocating to Woodstock to work. [ 42 ] The two had an in person meeting on October 17, 2023 in Fredericton. Ms. T expressed uncertainty about where she would be living.

They collaborated on options and landed on Grace House. [ 43 ] They met with representatives at Grace House that day and a plan was implemented. Unfortunately, that placement only lasted two days. The reasons why were not clearly presented in the evidence but appear to be related to Ms. T’s inability to comply with curfew. A circumstance she attributes to an arrest that occurred. [ 44 ] Regardless, Ms. T relocated back to St. Stephen, again looking for housing or a shelter. [ 45 ] Currently, Ms. T is couch surfing in the St. Stephen area. She stated that in the short term she is looking for an apartment.

Long term she has a plan to purchase a five acre property which includes a mini home, for approximately $5,000.00. She testified that she has savings to assist with the purchase. She did not tender any corroborating evidence relating to the savings or the particulars of the real estate transaction. [ 46 ] The Minister’s evidence indicates that Ms. T disclosed that her file with Income Assistance has been closed for three years due to troubles related to acquiring her banking information. In her testimony Ms.

T confirmed that a lack of appropriate identification had prevented her from getting her benefits reinstated. She confirmed that he has not had income for awhile and that friends “Dale and Linda” are “providing for her.” [ 47 ] Ms. Arsenault had offered help with navigating the process for Income Assistance, it appears even Grace House could have provided support on that front, however it does not appear that either opportunity was engaged by Ms. T. [ 48 ] She testified that her identification issue has been resolved and she has an upcoming meeting that she is confident will have her benefits back in place. 4.

Engagement and Supervised Visits [ 49 ] The Minister’s evidence confirms that between the taking of protective care and November of 2023, a total of 26 visits were scheduled between mother and daughter. Of those visits Ms. T attended only nine arriving late for four. One visit ended early due to concerns that she may be under the influence and on two visits in October she was observed to be struggling to stay awake. She denies

this was related to drug use. [ 50 ] Her last visit with C.T. was on October 20, 2023. Her last communication with Ms. Arsenault was four days later on October 24, 2023, it was on that date that she advised that she been “kicked out” of Grace House and had gone back to St. Stephen. Ms. T asked for her visit the next day to be cancelled due to illness. [ 51 ] Subsequent attempts to contact Ms. T to

schedule visits were unsuccessful. As a result the Minister placed further visits on hold as of October 31, 2023. Ms. Arsenault made attempts to connect with Ms. T by text and voicemail on October 29 th , 30 th , November 7 th , 15 th , and 16 th . Again, she was not successful. The Minister did not hear from Ms. T again until the commencement of the hearing. [ 52 ] Initially, Ms. Arsenault had set up a

schedule of visits three times weekly. Regrettably, the evidence establishes that vey quickly accommodation had to be made to that schedule. For the mainstay of the time C.T. has been in care visits were arranged when Ms. T advised she would be available. [ 53 ] Ms. T disagrees with much of the Ministers evidence on this point. She testified that in fact it was the Minister’s failure to respond to her many texts and calls that was the barrier to communication and her ability to visit with her daughter.

That, and on going issues with transportation. [ 54 ] In her viva voce evidence she was very critical of the Minister’s failure to transfer her file and her daughter’s foster care placement to St. Stephen. In her view that was a central issue to her being able to see her daughter. She does have some support in the St. Stephen area and her Probation Officer is also there. [ 55 ] Ms. Arsenault’s evidence indicates in part that circumstances was the result of Ms. T failing to stay in one place long enough for the Minister to be confident with where she intended to consistently reside. Ms.

Arsenault confirmed in her evidence that bus passes and gas cards were offered to Ms. T to assist with transportation but Ms. T did not take advantage of the opportunity. The foster parents were also engaged to assist with transportation. III.

ISSUES [ 56 ] The issues in this matter, simply put, are as follows: • Is it in C.T.’s best interest that a guardianship order issue, transferring her custody care and control to the Minister on a permanent basis, or should an alternative order be granted? • In the event a guardianship order is granted, is it in the best interests of C.T. that a right of access be reserved for her with respect to Ms. T ? IV. ANALYSIS A. Position of the Parties 1. The Minister [ 57 ] The Minister acknowledges that the request for guardianship comes early in that this child has been in care for just under six months.

The Minister asks the court however not to lose sight of Ms. T’s previous six years of involvement with child protection services. The Minister argues the same historical issues remain current and Ms. T remains dismissive of the fact these concerns present a significant risk of harm to C.T.’s security and development. [ 58 ] In support the Minister points to the evidence that establishes Ms. T remains transient and homeless, faces numerous criminal charges, some of which may result in further incarceration.

The Minister also spotlights the fact she concedes continued use of methamphetamines but denies addiction or the need for mitigation by way of addiction services. In

summary the Minister argues that Ms. T has failure to engage in “any” meaningful case planning over the last six months. [ 59 ] In

summary, the Minister’s believes it has done all it can to encourage Ms. T to engage in case planning and more importantly with her daughter. Additional time in the Minister’s view will not change Ms. T’s longstanding resistance to work with the Minister. As a result, the Minister argues there is no realistic chance of success or “turnaround” for Ms. T within a time period that is within the best interests of her daughter. [ 60 ] The Minister asks this court to grant the guardianship.

In light of the limited engagement with C.T. throughout the last five months and considering the very young age of the child, the Minister does not support a reserved right of access with Ms. T. 2. Ms. T [ 61 ] Ms. T is not seeking reunification but rather an extended custody order so that she can have more time to secure the housing she so desperately needs for reunification to occur. Counsel for Ms. T maintains that the Minister has not met the heavy evidentiary burden placed on it to justify the guardianship order issuing. She argues that the rush to guardianship is premised more on the Minister’s

historical relationship with Ms. T then her current circumstances. In her view the Minister has not exhausted the resources necessary to assist her in mitigating her issues. [ 62 ] Counsel for Ms. T further argues there is a bond between mother and child that needs to be prioritized. It, in itself warrants more time being given to Ms. T to prove her genuine commitment to reunification. She argues that Ms. is seeking out resources, and she should be provided the time necessary to meaningfully engage with these resources.

In her view it is in the child’s best interest that she be given every opportunity to have her mother remain in her life. B. The Law [ 63 ] The power of the Court to render guardianship orders is found in

Part IV of the Act , more specifically at subsection 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. [ 64 ] On a Minister’s application for guardianship the Court is mandated by subsection 53(2) of the Act to place the best interests of the child above all other considerations.

The Court is guided by the abundance of caselaw in New Brunswick that fortifies the child centric perspective of the best interests of the child analysis. As stated by the Court of Appeal in V.C and J.C. v. The Minister of Social Development 2015 NBCA 28 , the best interest of the child test is the sole test employed to determine child custody. [ 65 ] It is not lost on this court that Ms. T as had a difficult life. It is easy to feel empathy for Ms. T. Her struggles are real and unfortunately not uncommon. The court is attuned to the paucity of resources in this Province to assist those like Ms.

T who have had significant trauma in their lives, to regain their balance and find footing in the community. It was clear from her evidence that she loves her daughter and desperately wants to find her way to reunification with her. [ 66 ] Regrettably this court, despite empathy for the plight of the parent, can not prioritize that over what determination remains in the best interests of the child. The court at all times recognizes the importance of this decision in the lives of both Ms.

T and her daughter and has considered the evidence and arguments presented very carefully. [ 67 ] In accordance with the definition as set out in

section 1 of the Act , “best interests of the child” requires consideration of the evidence against the backdrop of the following factors: (

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. C. The Best Interest Test (

a) The mental, emotional and physical health of the children and their need for appropriate care or treatment, or both and the need to provide a secure environment that would permit the children to become a useful and productive members of society through the achievement of their full potential according to their individual capacity [ 68 ] I find this is an appropriate case in which to combine paragraphs (

a) and (

f) of the best interests of the child analysis. [ 69 ] There was nothing presented in the evidence that suggests C.T., despite her precarious start in life, is anything other than a healthy six month old child. Further, there was no evidence presented to suggest that the child’s physical emotional and psychological well-being have not been appropriately supported during her time in the minister’s care. [ 70 ] The court recognizes that as a result of her young age, her mental, emotional, and physical needs are significant. Unfortunately, Ms.

T is not and has not since C.T.’s birth, been in a position to discharge her responsibility with respect to supporting these needs. [ 71 ] Ms. T is homeless, financially insecure, facing multiple criminal charges and is actively using methamphetamines weekly. She accepts this reality. She recognizes she is struggling to meet her own basic needs and is not ready for reunification today. [ 72 ] From the court’s perspective, I am not confident things will change for Ms. T in the near future. Before reunification can occur, Ms.

T will need to be able to demonstrate sustained sobriety, housing stability, and actual engagement with mental health and addiction supports. Her issues are all longstanding, and by that I mean they have been pervasively present for many many years. These issues will take significant time and effort on the part of Ms. T to resolve.

[ 73 ] More importantly that will only happen once acceptance and engagement with services occurs. [ 74 ] The evidence persuades me that Ms. T has not yet fully accepted the breadth of issues she is facing and what she must do to be in a position to over come these issues. Until that occurs she will not be equipped to support her daughters needs and provide her with a safe, stable and structured environment. [ 75 ] The other notable concern is the very real possibility that Ms. T may be facing future incarceration. Her immediate and long term situation is very uncertain.

This uncertainty weighs heavily in the analysis. [ 76 ] In short I am not persuaded that Ms. T will, within a timeframe that is in her daughter’s best interests be able to mitigate her mental heath and addictions issues, resolve her outstanding criminal charges and secure financial stability and suitable housing. [ 77 ] This aspect of the best interest of the child analysis is weighted strongly in favor of a guardianship order issuing. (

b) the views and preferences of the child, where such views and preferences can be reasonably ascertained [ 78 ] C.T. being only six months old it is not possible for this court to reasonably ascertained her views and preferences. (

c) the effect upon the child of any disruption of the child's sense of continuity [ 79 ] This child has spent her entire young life in the care of her foster placement. Considering that Ms. T is not seeking reunification, but rather an extended custody order, whether guardianship is granted or not, the child’s current sense of continuity will not be impacted. She will remain in the short term care of the Minister, most likely in her current foster care placement. [ 80 ] It is acknowledged that an adoptive placement will ultimately result in a change in her circumstances and continuity of care.

The permanency it provides however outweighs any short term disruption to her 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 [ 81 ] It is clear that Ms. T loves her daughter. However I cannot conclude, considering the child’s age and the minimal engagement she has had with Ms. T that there is any significant bond or attachment between the two that would be negatively impacted by the granting of a guardianship order.

Over the last five months C.T. has only seen her mother nine times. Each occasion was only for a very short time. [ 82 ] It is doubtful C.T recognizes Ms. T as her mother or even considering the months that have passed since she last saw her, remembers her. (

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 [ 83 ] The Minister’s plan is to seek permanence for C.T. through adoption. [ 84 ] Ms. T at this juncture is not presenting a parenting plan, rather she is simply asking for more time. She argues that she has started to engage with the case plan alluding to an upcoming counselling session with mental health. She advises her social assistance will be reinstated shortly.

She points to her goal of purchasing the five acres of property and suggests that once weather permits she will do the work necessary to ensure the property is suitable. Unfortunately, all aspects of this “plan” forward are suspiciously devoid detail. This leaves the court questioning whether the plan forward is in fact a feasible one. [ 85 ] By way of example, her plan to purchase the mini home and surrounding acreage with savings does not seem plausible in light of her current circumstances.

She admittedly has not had social assistance benefits for a very long time and testified that she had been relying on “Dale and Linda” to provide for her. She has been homeless and couch surfing for the last six months. [ 86 ] One of the reasons Ms. T was not successful in having her file transferred to St. Stephen is because of her transience. If Ms. T had savings, the question must be asked why she did not secure suitable accommodation long before now. She is aware the Minister requires it for reunification.

Further it would have facilitated an appropriate avenue for her to have consistent parenting time with C.T. [ 87 ] In the end I do not find her assertions credible as it relates to her plan forward. [ 88 ] Lastly, the court is cognizant of the potential impact Ms. T’s ongoing criminal charges may have on her ability to continue to case plan with the Minister. A circumstance she did not address or account for in her evidence. [ 89 ] C.T.’s best interests require a plan moving forward that will, with certainty , lead to permanence. I do not doubt Ms.

T’s plan is well intentioned, it simply is not grounded in anything in the evidentiary record that gives me confidence it is going to happen within a timeline that would be consistent with C.T.’s best interests. [ 90 ] Overall, the Minister's plan is superior and will ensure C.T. the stability, security, and permanence that she is entitled to. To accommodate Ms. P’s potential future plan of reunification , prioritizes Ms. P’s interests over that of her daughter. This is contrary to the best interest of the child analysis. (

g) the child's cultural and religious heritage

[91] There is no evidence before the Court in respect of the cultural and religious heritage of C.T. I therefore decline to address thiscriterion. A. Issue 1 — Should a guardianship order issue? [92] The overarching principle governing this Court’s difficult task is what is in the “best interests of C.T. within the meaning ofSection 1 of the Act. It “trumps all other considerations”, New Brunswick (Minister of Family and Community Services) v. M (T.L.)(Litigation Guardian of), 2009 NBCA 8 (N.B.C.A.).

At the end of the day, it is the parental tie as a meaningful and positive force in thelife of a child and not in the life of a parent, that the Court must focus on, (R. (A.N.) v W. (L.J.), (SCC), [1983] 2 S.C.R.173. (S.C.C.). The best interests of the child are paramount to all other considerations, including the family unit.”, (F.(J.) v. E.(T), 2010NBCA 14 , 2010 NBCA14 (N.B.C.A.)). [93] It is not uncommon for this court to be presented with a request for guardianship prior to the expiration of the 24 month periodset out in section 55(2) of the Family Services Act.

The jurisprudence establishes that this court is not prevented from finding that thebest interests of C.T. warrants the issuing of the guardianship now, despite her short time in care, (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 ofSocial Development v. D.M. and S.D., 2020 NBQB 225, M.S.D. v. D.F and M.M, 2022 NBQB 039). [94] Comment from the Court of Appeal in Minister of Social Development v. S.H. and C.H. 2021 NBCA 56 is instructive.

In thatcase the Court was asked to consider, inter alia, whether a trial judge must prior to the expiration of the 24-month period set out ins.55(2) of the Act, dismiss or delay guardianship applications when faced with evidence that a parent may make further progress as aresult of the measures employed by the Minister.

The essence of the appellant mother’s argument in that instance was that a trial judge isrequired as a matter of law to find that all other measures have failed before a guardianship order can issue. [95] Acknowledging that the Act requires the state to attempt reunification before permanently extinguishing parental rights, the Courtfound the ground of appeal to be without merit.

The trial judge’s decision not to grant additional time was determined to be “hers to makeand it was entitled to deference”, (para. 22). [96] Accordingly, the question to be answered is has the Minister made sufficient effort in the period of time C.T. has been in care toachieve or work towards reunification? [97] In my view this question must be answered in the affirmative. [98] The Minister has prepared an extensive case plan. It represents the road map Ms. T needed to follow to satisfy the Minister shewas making best efforts to address and ultimately eliminate the child protection concerns at play.

In accordance with the case plan, theMinister scheduled visits with C.T. in a safe environment. Ms. T did not consistently attend despite bus passes, gas cards, andtransportation by the foster parents being offered to assist. The Minister offered addictions and mental health services which weredeclined. She refused and missed drug screens. The Minister tried to find secure housing for Ms. T through Grace House. Grace Housecould have assisted Ms. T with navigating many services such as income assistance. Ms.

T could not in the end find away to stay atGrace House and take advantage of the structure and the services it offered. [99] Ms. T has quite simply chosen not to follow the road map. She is largely resistant to accepting any help from the Minister. [100] Ms. T whether she wishes to admit it or not has a methamphetamine addiction that needs to be managed along with some complexunderlying mental health issues.

She very candidly testified to mental health issues that require therapy but stated that she just is notready to deal with them yet. [101] These unaddressed mental health and addiction issues remain a risk of harm to C.T.’s security. [102] I am not alone in drawing that conclusion. In New Brunswick (Minister of Social Development) v. S.T., [2014] N.B.J. No 74,2014 NBQB 24, Noble J. quoted from Ferguson J. New Brunswick (Minister of Social Development) v. T.L.T., [2010] N.B.J. No. 169 andstated as follows: 200. The second of the decisions, that of Ferguson, J. in New Brunswick (Minister of Social Development) v.

T.L.T., [2010] N.B.J. No.169, expanded upon the theme set out by Justice Boisvert: The Minister, in my view, has led cogent evidence concerning the father's failure to deal in any effective way with his drug problem overa lengthy period of time. That evidence is especially cogent for the period after he was given the greatest incentive to do so by beingtold, almost 2 years ago, that his failure to live drug-free would lead to a guardianship application. Absent evidence that drug use hasceased, and not just for the near term, the guardianship case has been made out given the needs of the child.

That is not to say thatthe burden of proof has been shifted to the father. It has remained with the Minister throughout. However, C cannot be turned backto the custody of a father still struggling to overcome his drug dependency only to be apprehended again in the near future. Her bestinterests demand more than a hope the father can be rehabilitated. 201. Justice Ferguson's decision emphasizes that the Court's primary concern must be the best interests of the child.

If there is any riskthat the addiction of the parent poses a risk to the children in his/her custody, the Court should always make its decision in the bestinterests of the child. The decision does not stand for the principle that parents who suffer from addictions should never be permitted tohave custody of their children. Instead, it reinforces the principle that an addict that suffers from a "history of relapse" poses a threat to adependent child. (See: The Minister of Family and Community Services v. A.W. & W.C., [2007] N.B.J. No. 4 (QL), 2007 NBQB 9.

Thisdecision was upheld by the New Brunswick Court of Appeal. See A.W. v. The Minister of Family and Community Services, 2007 NBCA77 ; 322 N.B.R. (2d) 162; 43 R.F.L. (6th) 277).

Emphasis Added [ 103 ] Justice Noble in New Brunswick (Minister of Social Development) v. S.T., goes on to characterize addictions as “chronic diseases” that are never cured only “managed”. In that case he concluded based on the evidence that the parents before him had not yet managed to take full control of their addictions and that was “a significant factor” for the court’s consideration, (p.204). [ 104 ] Likewise, Ms. T’s methamphetamine use is a significant factor for this court. Based on the totality of the evidence presented including Ms.

T’s own admissions, it is clear illicit drug use is an integral part of her life. [ 105 ] In my view a dependency exits. Absent that dependency she would have complied with her case plan on this front and abstained from use. Ms. T was aware, essentially from the taking of protective care forward, that her parental rights were at risk. If she was committed to reunification with C.T. and she was able , I believe she would have heeded the Minister’s request and ceased any further drug use.

Sadly, she has not and continues to engage weekly in drugs. [ 106 ] She is not in my view “in control” of her long time drug habit and will not actively engage in any programming to mitigate it. This is not surprising considering her position. In her view there is nothing to manage. [ 107 ] Ms. T loves her daughter, I believe her desire to have her in her permanent care is genuinely held. Unfortunately, methamphetamines are a powerful foe. They ruin the best of intentions. This court has previously found that methamphetamines do not lend themselves to “recreational use” as suggested by Ms. T. In M.S.D. v.

B.A., W.P. and V.H . 2021 NBQB 254 , the court stated as follows at paragraph 116: This case is illustrative of the risks of “recreational drug use” involving crystal meth (methamphetamines). While some may argue that certain drugs qualify as suitable for recreational drug use, this family has learned that crystal meth is not one of them. By all appearances, crystal meth is a devastating drug that slowly and methodically ruins a person from the inside out. It is now eating its way through this vulnerable family. [ 108 ] I echo the comments of the court in M.S.D. v. B.A et.al. Ms.

T’s failure to recognize that her drug habit presents a tangible risk to her daughter’s well being, is a significant barrier to reunification now and in the near future. The court can not via a crystal ball determine when or if Ms. T will acknowledge the risk of ongoing drug use to her daughter. [ 109 ] In the end, her failure to recognize and take ownership of this issue and the others raised by the Minister, is the most tangible impediment to any hope of reunification. Ms. T remains steadfast in her position that her troubles are grounded in a system that has failed her.

She reiterated this is in her evidence many times. In her view, her inability to reunify with her daughter is solely due to the Minister’s short comings. [ 110 ] This perception again is a longstanding one. She has expressed similar sentiment to this court on countless previous occasions. In August of 2020 Ms. T testified at the hearing of the guardianship application with respect to her third child. The court in granting the guardianship, concluded the following, ( M.S.D. v. E.T. and K.A August 28, 2020 at paragraph.78): E.T. lives a transient and unstable lifestyle.

Her judgement and actions are in some real doubt. She has not shown herself to be able to put the child first. She admitted to using drugs and alcohol to excess just prior to the hearing. Her priorities are in doubt. I am not at all convinced that she has done all that she can do to improve her situation and to at least make an effort to help herself and most importantly, to parent C.L.M.A. She maintains she is a capable parent. However there is a real disparity in her willingness to prioritize the child. She is unfortunately fixated on the Minister’s prior actions in her life and cannot seem to get past them.

She feels like she cannot win. She is in denial and has unreasonably convinced herself to shift the blame for her life onto the Minister. Emphasis Added [ 111 ] Similarly, approximately a year later, Justice Godbout rendered a decision with respect to the extension of a custody order with respect to Ms. T’s two oldest children. In that decision which was rendered orally on April 28, 2021 she stated the following: Although not a finding of fact, this court observed [Ms. T] to be stuck in an exhausting thought pattern that prevents her from moving forward.

Distrust of the Minister infuses every decision she needs to make. To quote her ‘I am willing to do whatever they want but they can never tell me why they want me to do it.” [ 112 ] A further custody order extension hearing was held with respect to the same two children subsequently in October of 2021. The Court in granting the Minister’s application had this to say at paragraph 12 the decision: Before me, E.T.’s testimony sounded very similar to what she gave before Justice Godbout and as reflected in her decision.

Quite tellingly, before me E.T. testified “my problems are CPS (child protection services) that’s my only problem”. She added ‘the system is screwing everything up”. The genesis of E.T.’s deeply held distrust of Social Development relates to her view that the Minister’s taking of her children and indeed much of her past parenting history with them, is based on a false premise or is a “false history”.

She feels deeply aggrieved that when she reached out for help or originally to the police in the fall of 2020, over access issues with J.P.(the father) the Minister got involved and created in her mind child protection concerns that led to her losing her children. She feels that social development tricked her or that instead of helping her they broke up the family. To be clear I do not find E.T. to be delusional or anything of the like and indeed her feelings seem honestly held. However I do not find them to be reasonably held.

For instance E.T. testified that she sees the benefit’s of counselling but just as long as the Minister is not involved or the results shared with them. She agreed to drug testing but did not complete most that were requested of her. E.T. needs to understand that the child protection system exists foremost to protect her children. Her personal discomfort with the Minister’s involvement in her and the children’s lives may be an unfortunate by-product but it is a personal obstacle that she needs to overcome if she hopes to reunify with her children.

E.T. presented as combative and emotional in her testimony she is intelligent. She remains, notwithstanding her acknowledged personalrisky profile, prideful and independent. E.T. testified that she is an open book and “honest to a fault”. To some degree that rings true. Shetestified by often admitting certain facts that likely play against her. However her position and some of her evidence is simply illogical orunreasonable. It is fuelled by her strong resentment toward the child protection workers.

Largely her objection to the Minister’s requestfor an extension comes down to her firm position that she will be able to get all her ducks in a row only once the children are back withher. [113] The evidence presented by Ms. T in these previous court appearances is eerily similar to the evidence she presented on thisApplication. She remains convinced that the Minister has not done all that it could to assist her in addressing her case plan objectives.Her foremost complaint is the Minister’s failure to transfer her file and her daughter’s foster care placement to St. Stephen.

In her viewthe Minister’s representatives in St. Stephen are “less corrupt than those in the Fredericton area.” [114] She does not understand why the Minister has applied for guardianship as opposed to a custody order only. She believes this ishigh-handed and harsh on the part of the Minister. [115] In answer to this the Minister states that nothing has changed with respect to Ms. T since they first became involved in 2016. Iagree. The issues remain unchanged because Ms.

T continues to believe the issue is the Minister. [116] To be successful on the Application the Minister must meet the burden of establishing on a balance of probabilities, that it is inC.T.‘s best interest at the time of hearing, that a guardianship order should issue. That burden never shifts.

However, while the burdenof proof never changes in Ministerial applications, it is recognized that the quantum of proof required in evidentiary terms does. [117] The evidentiary burden, not to be confused with the legal burden, to obtain a supervisory order for example, is less onerous thanthat necessary to permanently extinguish parental rights with respect to children, (New Brunswick Minister of Social Development) v.K.A.M. [2011]N.B.J. No. 511(NBQB) at p. 74-75). [118] The New Brunswick Court of Appeal in the Minister of Social Services v.

M.L. (NB KB), 56 NBR (2ND) 343at p. 29 states the following with respect to the nature of a guardianship order: 29. This recourse is the most serious of those at the Minister’s disposal. Through this order, the court transfers to the Minister on apermanent basis the guardianship of the child, including the custody care and control of the child and all parental rights andresponsibilities with respect to the child. 30.

It goes without saying that a court will only grant such an order in the most serious circumstances and that the Minister must at leastmeet the basic evidentiary requirements as listed above regarding an application for a custody order. In particular it is essential that theMinister satisfy the court that there is only a very small chance that the circumstances threatening the security and development ofthe child will be corrected within the reasonably foreseeable future and that it is unreasonable to think that the child will be able togo back home within a delay compatible with the best interests of the child.

Emphasis Added [119] In my view, the Minister has in this case, satisfied the onerous evidentiary burden required to permanently sever the parentalrights of Ms. T. Her life is now as it has been for many years, in a state of turmoil. She testified that she is a “hot mess”.

Unfortunately,this current state is a significantly historical one that shows no signs of changing. [120] The Minister has established that there is little to no chance that the circumstances threatening the security and development ofC.T. will be corrected within the reasonably foreseeable future and that it is unreasonable to think that she will be able to live with Ms. Twithin a delay compatible with her best interests. [121] C.T. can not wait.

She requires stability and permanence within a timeline that guarantees she will be afforded the opportunity shedeserves to reach her full potential. [122] Accordingly, based upon the significant record of evidence established before me, the arguments presented by counsel and mostimportantly taking into consideration the criteria set out in applicable paragraphs of the definition of the bests interest of the child undersection 1 of the Act., I find that the Minister has established it is more probable than not that the best interest of G.N. requires aguardianship order to be made under section 56(1) of the Act.

B. Issue 3 — Should a right of access be preserved for G.N. with the Respondents? [123] As noted by the Supreme Court of Canada in New Brunswick (Minister of Health and Community Services) v. M.L. and R.L. L.(M.), (SCC), [1998] 2 S.C.R. 534; (SCC) at paragraphs 38 and 39: An order for permanent guardianship is the result of a consideration of the best interests of the child.

In considering whether visiting oraccess rights should be granted, the judge cannot ignore the fact that he or she has first found it necessary to remove the child from theparents' care completely and permanently so that the child's welfare will not be jeopardized any further. The judge must thereforeconsider whether more limited contact might still be beneficial for the child. My consideration of whether access should be granted is based on the following principles. First, there is no inconsistency in principlebetween a permanent guardianship order and an access order.

Second, access is the exception and not the rule. Third, the principle ofpreserving family ties cannot come into play in respect of granting access unless it is in the best interests of the child to do so, having

regard to all the other relevant factors. Fourth, an adoption, which is in the best interests of the child, must not be hampered by the existence of a right of access. Fifth, access should not be granted if its exercise would have negative effects on the physical or psychological health of the child . [ 124 ] The reservation of a right of access remains an exceptional order following the granting of a guardianship order. I am not persuaded this is an exceptional case warranting the preservation of post guardianship access. V.

DISPOSITION [ 125 ] Pursuant to subsection 56(1) of the Act the Minister is granted guardianship of the child C.T. born [...] , 2023. [ 126 ] No right of access is retained on behalf of the child with the Respondent. DATED at Fredericton, N.B., this 14 th day of December 2023. _______________________________________ Krista L. Colford Justice of the Court of King’s Bench of New Brunswick