Nova Scotia (Community Services) v. M.A.B., 2013 NSFC 11

FAMILY COURT OF NOVA SCOTIA Citation: Nova Scotia (Community Services) v. M.A.B., 2013 NSFC 11 Date: 20130529 Docket: FLB CFSA-071955 Registry: Bridgewater Between: Minister of Community Services Applicant - and - M. A. B. and B. K. B. Respondents - and - J.E.B.B. Third Party - and - C. H. and G. H. Fourth Parties Editorial Notice Identifying information has been removed from this electronic version of the judgment.

Publication restriction: Publishers of this case please take note that s.94(1) of the Children and Family Services act applies and may require editing of this judgment or its heading before publication. Section 94(1) provides: 94(1) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or a relative of the child. Judge: The Honourable Judge William J.

Dyer Heard: January 22, 23, 29, 30, 31, 2013, February 4, 12, 14, 2013 and May 7, 2013 at Bridgewater, Nova Scotia Counsel: Philip S. Gruchy, for the Applicant, Minister of Community Services Barry F. Whynot, for the Respondent, M. B. Jennifer Rafuse and Shawn O ’ Hara, for the Third Party, J.E.B.B. Thomas J. Feindel, counsel for Fourth Parties, C. H. and G. H.

By the Court : [ 1 ] This decision follows a review of disposition hearing under the Children and Family Services Act (CFSA) . Background [ 2 ] To facilitate understanding, I will identify the parties. [ 3 ] Family and Children ’ s Services of Lunenburg County is the agency. [ 4 ] M. B. is the mother of four children, W, X, Y and Z . She will be referred to by her first name, by her surname, or as “ the mother ” , as the context requires. The children will be referred to by their first names. ( editorial note - to be known as W, X, Y and Z) [ 5 ] All four children were the subject of CFSA proceedings in 2005.

When those proceedings ended in 2006, the children were not in the agency ’ s care. [ 6 ] The present case relates to Z, who is now 10 years old, and Y, who is now 14 years old. [ 7 ] Y lives with the mother, subject to agency supervision. Z is in the agency ’ s temporary care and custody and has been in foster care since taken into care in September, 2010. [ 8 ] Y is a party to the proceedings. Throughout, he has had the benefit of independent legal counsel. A watching brief was maintained until the last full hearing. As anticipated, Y ’ s counsel did not attend that hearing and Y did not participate.

However, by agreement, an affidavit from Y was entered into evidence without the necessity of courtroom testimony. [ 9 ] B. B. is the father of X, Y and Z. He and the mother are now divorced. Although given notice of the proceedings, Mr. B. has not actively participated in the present case and he has not put forward a Plan of Care for Y or Z. He submitted no affidavit(

s) or other evidence for consideration. [ 10 ] C. H. and G. H. are the children ’ s maternal grandparents and were added as parties without objection. They are referred to as the grandparents or the H. ’ s. They participated in the hearing and put forward what was characterized as an alternate Plan of Care. [ 11 ] There was a long list of lay and professional witnesses. Without intending any discourtesy, I have frequently referred to them by their surnames only.

Issues [ 12 ] The agency seeks to terminate the proceedings insofar as Y is concerned and to place Z in its permanent care and custody. [ 13 ] The agency ’ s September 20, 2012 Plan of Care for Z was authored by Linda Jensen, an agency Supervisor. (She did not testify.)

[14] The mother wants continuation of Y’s supervision order and seeks return of Z to her care, under agency supervision. Should Znot be returned to her mother’s care, the H.’s seek placement with them, under agency supervision if need be, in lieu of a permanent careand custody award. [15] The mother submitted that the children continue to be in need of protective services as contemplated by section 22(2)(

b) of theCFSA, and as previously determined at the disposition stage. It is common ground that such a finding would be sufficient to sustain thevarious potential outcomes and orders proposed by the parties for Z. However, as mentioned, Y’s status must be revisited. New Evidence [16] After receiving the evidence and hearing the submissions of counsel, I reserved my decision.

But, on the brink of a scheduled(oral) decision to conclude the review, the agency gave notice that it wanted to reopen the case and introduce “new evidence” aboutintervening events which (from its perspective) were significant enough to warrant the court’s attention before the decision was released.(By this time, Y had retained new counsel.) [17] There was informal discussion which centred on Family Court Rule 1.04, Civil Procedure Rules 51.05 (

b) and 82.22 (2), andthe import of Children’s Aid Society of Cape Breton - Victoria v. A. L., [2010] N. S. J. 290 and Griffin v. Corcoran (2001), 2001NSCA 73 , 193 N. S. R. (2d) 279. The upshot was an agreement that I would reopen the case and admit into evidence severalaffidavits tendered by the agency, and one reply affidavit by the mother, without testimony by the deponents. Counsel for thegrandparents and for Y elected not to submit supplementary affidavits, and also waived examination rights. All counsel then waived theirrights to further closing submissions.

I (again) reserved my decision to consider the “new” and the “old” evidence. [18] I commend counsel for achieving a consensus on the new evidence issue. It was unanticipated and somewhat novel. It easilycould have devolved into a time-consuming exercise with further delay in a lengthy case. As will appear, the scope of the hearing wasalready widened by the introduction of evidence from a prior CFSA proceeding, and, more recently, the start and subsequent “rollover”of another proceeding (and its evidence) into the current one (with its evidence).

The Evidence Social Workers [19] Given that the agency’s involvement with the family goes back to approximately 1994, and given the competing perspectiveson the weight to be attached to past parenting and the agency’s own role and effectiveness in providing appropriate care, supervision,and support for the children when called upon to do so, it was not surprising that the evidence from social workers was voluminous.Reduction was difficult because counsel focussed on so many details.

Robert Snair September 15, 2010 Affidavit [20] Robert Snair is a social worker who was employed by the agency when Z and Y were taken into care in early September 9,

2010. He recounted the history of the agency ’ s involvement with the mother and her children dating back to 1994 and included a

summary of previous involvement and legal proceedings spanning August, 2004 to December, 2006. [ 21 ] Snair described and elaborated on what he called a pattern of chronic neglect and inadequate supervision of the children by the mother. In broad brush, he wrote as follows: The children have been living in an unstable home environment where there is minimal structure, routine and discipline, and where their mother is not appropriately responding to their needs. The result is children who are aggressive and undisciplined. M.

B.’s lack of parenting ability and mental health issues have placed the children at risk, both physically and emotionally. The basic physical and emotional needs of the children have often not been met. The younger children have been exposed to repeated incidents of aggression and violence involving W and his mother in the family home, which has often resulted in police involvement. [ 22 ] Snair mentioned there was at least one period of stability for the family - between December, 2006 and the Spring of 2009 - when there was what he described as minimal agency involvement.

However, there was no elaboration and no credit given to the mother or others (assuming this was not fortuitous). [ 23 ] Snair summarized the events leading up to the agency ’ s 2010 apprehension starting at page 3 of his affidavit. Particular attention was devoted to events in late July when Z was admitted to the IWK Hospital. The mother had found Z on the floor of her room. The child appeared to be going in and out of consciousness. As discussed elsewhere, Z was taken to the emergency department of the local hospital and then transferred to the IWK where there were suspicions of the possible ingestion of drugs.

There were confusing toxicology test results at the time. [ 24 ] Snair also recounted disclosure of a drug overdose by the mother which had resulted in her hospitalization. Snair captured the final triggering events as follows: Throughout the Agency’s involvement with this family M. B.’s mental health has been a persistent problem. She was diagnosed in 2006 with Borderline Personality Disorder and also meeting the criteria for Passive-Aggressive Personality Disorder. Ms. B. has made multiple suicide attempts, with two overdoes (sic) of prescription medication in this past year alone.

The most recent suicide attempt, noted above, was made on or about September 1, 2010 and resulted in Ms. B. being in a coma in hospital for several days. The information available to the agency suggests that this suicide attempt was a reaction to the stress that Ms. B. said she was feeling as a result of ongoing conflict with neighbours. Ms. B. made no attempt to shield her children from this most recent overdose, not did she make any arrangements for their care. The children were left to provide care for their mother and seek out medical assistance for her.

September 30, 2010 Affidavit [ 25 ] Snair ’ s late September, 2010 affidavit clarified that when Y and Z were taken into care, their sister X was residing with her father, B. B., in [...]. X returned to Nova Scotia in late September, 2010 accompanied by a social worker employed by a [...] child protection agency. The Nova Scotia proceedings were widened to include X and she was found to be in need of protection. February 8, 2011 Affidavit [ 26 ] By early February, 2011 Snair was reporting that the three children remained in the agency ’ s temporary care and custody.

X had been placed at [...] in Halifax, and was supposed to be attending school. Y had been placed at [...], also in Halifax, and was supposed to be attending a specialized education program. However, as discussed elsewhere, Y refused to attend school or any other educational program, he was frequently absent from his placement, and he allegedly became involved in dangerous and destructive activities.

Z had been placed in an approved foster home and was attending elementary school. [ 27 ] Snair confirmed that the mother was continuing regular counselling with agency family therapist, Stephen Young, and that she was also attending other therapy (with her eldest son, W). Services were being managed by Stephen Young and psychologist, Dr.

Valerie MacDonald. Individual counselling was continuing for both X and Z at the time. [ 28 ] Appended to this affidavit is the agency ’ s Plan of Care for X, Y and Z. It provided an overview of resources being provided to the family and a host of other matters as mandated by the statute. April 26, 2011 Affidavit [ 29 ] Snair ’ s last affidavit confirmed that by the end of April, 2011 the three children were still in the agency ’ s care. Reportedly, X was frequently absent from her placement at [...] and presenting all sorts of challenges.

Similarly, Y ’ s residential facility placement at [...] continued to be problematic. Z ’ s situation, by contrast, appeared to be much more stable. [ 30 ] Snair confirmed that the agency had received a mental health assessment from psychiatrist Dr. David Mulhall to the effect that the mother did not suffer from any major mental health illness. Snair noted that the primary psychiatric diagnosis was one of “ personality disorder ” . Snair ’ s Testimony [ 31 ] During his testimony, Snair was asked about the agency ’ s response to Dr. Mulhall ’ s report.

He confirmed that there had been no treatment recommendations and could not recall whether Dr. Mulhall was queried about potential services to alleviate the mother ’ s difficulties. When pressed, Snair said the only services offered to the mother were access to her children (while they were in care), some counselling or therapy, transportation services, and that a Parental Capacity Assessment was recommended.

Asked to identify the therapists offered or provided to the mother from 2009 to 2011, Snair confirmed that there was just one - an in-house therapist (Stephen Young). [ 32 ] It was on Snair ’ s watch that Z ’ s foster mother contacted the agency with a view to reducing the mother ’ s contact with Z. However, Snair was unable to recall the particulars. (Unfortunately for the witness, he apparently was not provided with copies of the agency notes and his own records so that he could better prepare for the hearing.) Archie Kennedy [ 33 ] Archie Kennedy is a social worker employed by the agency.

He assumed responsibilities from Robert Snair. November 7, 2011 Affidavit [ 34 ] In early November, 2011 Kennedy wrote that X was continuing to reside at [...] in Halifax and had been frequently absent from her placement without permission. At the time, it was said she could often be located at the “ Occupy Nova Scotia ” site in the city. This was a widely publicized and controversial protest/ political event which occurred in Halifax. Similar protests occurred across Canada, and in other countries. [ 35 ] X decided to quit school because it was causing her too much anxiety.

She agreed to consider enrollment in an alternative school, but did not attend a meeting to pursue this. She had a few counselling sessions with one Wendy Green but her frequent residential absences interrupted the sessions.

[ 36 ] At this time, Y was at [...] in Halifax. He had a brief admission and stay at the [...] from which he was discharged in late October, 2011. Within days of his discharge, he left his normal placement without permission and was reportedly staying away for extended periods. There were allegations by [...] staff that Y was involved with drug use while away from his placement. It was said that he was refusing to participate in individual counselling, at that time. [ 37 ] No formal reports from, or about, Y ’ s or X ’ s Halifax placements were put in evidence.

No reports about Y ’ s secure treatment stay were introduced. [ 38 ] By early November, 2011 Z was in an approved foster home and attending a public school. There were reports of “ behavioural difficulties following access visits with her family ” . As a result, visits with her mother were increased and visits with her siblings were decreased. By then, telephone access had been eliminated. [ 39 ] Also by that time, B. was continuing counselling with agency family therapist Stephen Young, and attending family therapy with W as facilitated by Young and psychologist Dr. Valerie MacDonald.

Arrangements had been made for B. to see Jan Cressman for additional mental health counselling. The mother was admittedly cooperative throughout. February 27 th , 2012 Affidavit [ 40 ] By late February, 2012, the agency had completed its review of plans for X and Y, and it was exploring ways for them to leave residential care and reside with family. The proposal was for an incremental and progressive return of the children to family, and it was proposed that B. and the H. ’ s share responsibility for the children.

Practically speaking, there was an agreement that Y would live with the H. ’ s and that X would return to her mother ’ s care. [ 41 ] Kennedy admitted the agency anticipated that X would rebel against any boundaries and rules, that there would be conflict, and possibly a breakdown of the placement. There was lingering concern that Y would not have adequate structure at his grandparents. To address these concerns, and in preparation, access visits were expected to expand. [ 42 ] However, the agency wanted Z to remain in an approved foster home and was not prepared to consider ending that placement.

June 11, 2012 Affidavit [ 43 ] In mid June, 2012 Kennedy wrote that the agency had learned that the H.s were unable or unwilling to continue responsibility for Y ’ s care and custody. As a consequence, the agency took a decision to support Y ’ s return to his mother ’ s care and custody with agency support and supervision. A family support worker was arranged to assist the mother with parenting, education and support.

It was recognized that X and Y would be presenting the mother with many challenges if she was to successfully parent two children on a full time basis. [ 44 ] Kennedy confirmed that a report had been received from therapist Ken Osbourne in early June, 2012 (discussed elsewhere) and that Osbourne would be working with Z and M. B. in joint sessions in the following weeks and months. [ 45 ] Kennedy wrote that: ...the agency has decided that the best approach for this family is to work cooperatively with Ms. B. to agree to the extension of the time

available for disposition orders in this proceeding. The agency is proposing that this proceeding terminate and that a new proceeding be commenced, thereby extending the disposition time that will be available to the court and the parties. [ 46 ] The latter reference is to the agreed “ rollover ” , mentioned at the outset. September 25, 2012 Affidavit [ 47 ] Kennedy wrote that the respondent B. B. resides in [...] and had no involvement in the proceeding since it started in September, 2010.

He noted that his co-worker Maggie Stewart was responsible for Z. [ 48 ] Kennedy reiterated that Y and Z were taken into care (as mentioned) in early September, 2010 and were both found to be in need of protective services in mid December, 2010. He confirmed the original proceeding concluded in mid June, 2012, as agreed.

The rollover included consolidation of “ new ” interim, protection and disposition hearings following coincidental termination of the initial child protection case. [ 49 ] The court had reconfirmed that Y and Z were in need of protective services, approved a plan for Z to remain in temporary care and custody for three months, and authorized return of Y to his mother subject to agency supervision for three months. [ 50 ] The June, 2012 consolidated order included terms for access between M. B. and Z, continuation of individual counselling for the mother with Dr.

Gretta Taylor (weekly), provision of an agency family support worker, and individual counselling for Z (Ken Osbourne). Insofar as Y was concerned, the order provided for ongoing counselling with Michael Belgrave.

Additionally, weekly therapy for the mother with Jan Cressman was approved. [ 51 ] Kennedy wrote that it was fully anticipated that the transition for Y back to his mother ’ s care would be difficult and that a minimum of six months would be required for the agency to determine if the mother would follow through with services, to assess her commitment to improved parenting, and to determine if her mental health status was stable. [ 52 ] Kennedy noted that B. was adamant that she wanted Z returned to her care.

However, the agency resisted on the basis that it believed she and the children required further services to ensure a successful return for Z. [ 53 ] Kennedy expressed the agency ’ s position at that time as follows: The agency was particularly concerned about a premature return of Z to her mother’s care and the significant risk that Z would again need to be removed from the home environment in order to protect her from harm should Ms. B. be unable to provide the care, stability and nurturing required by Z. [ 54 ] In late June, 2012 Kennedy introduced Family Support Worker Rosalie Carmichael to B..

Kennedy described the mother as being “ very negative about my presence in her home ” and that she “ appeared resistant to engaging in ongoing family support sessions with Ms. Carmichael ” . In her evidence, B. attributed any negative behaviours displayed to him and/or Rosalee Carmichael to the stress surrounding her children ’ s return. [ 55 ] (I disregarded several paragraphs in this affidavit authored by Kennedy. I sustained objections about hearsay content raised by B. ’ s counsel and have given no weight to the offending content.)

[ 56 ] Kennedy met with B. and Y in late August, 2012. At that time, there was discussion concerning plans for Y ’ s schooling for the upcoming academic year. B. reportedly confirmed that Y and X had both been in trouble with the law for shoplifting. Both the mother and Y reportedly confirmed that Y had been staying periodically with his grandparents, C. and G. H.. [ 57 ] As of late September, 2012 Kennedy said the agency ’ s position with respect to long term planning for Z was the same as before the first legal proceeding was terminated and the rollover. Based on M.

B.’s documented and ongoing challenges with parenting her children, the agency’s position remains that it is in Z’s best interest to be placed in the permanent care and custody of the Minister of Community Services. [ 58 ] Kennedy acknowledged that all of the family members had significant attachment and love for one another but insisted it was also clear that the mother did not have the ability to make and maintain the changes the agency considered necessary for her to create an appropriate home environment for Z, in particular.

Kennedy wrote that Z needed a stable long term plan and could not remain in limbo indefinitely. At the time, Kennedy also asserted that the mother continued to demonstrate poor decision making in relation to the supervision provided for X and Y. In his opinion, the mother continued to be unwilling or unable to put into practice the structures and limitations on those children that would be reasonable and expected or normal. [ 59 ] Kennedy confirmed that on August 29 th , 2012 an agency risk management meeting was convened and a decision was made to terminate family support services.

Kennedy said that decision was based on reported observations that Ms.

B.: . . . knows what is expected of her in order to ensure the safety of her children but whether she’s able to put that knowledge into practice is still in question, given her poor decision making in regard to X and Y this summer. [ 60 ] Kennedy said the agency decided to push forward with the permanent care and custody application as further delay was not perceived to be in Z ’ s best interest and that (from the agency ’ s perspective) the mother ’ s ability to parent was unlikely to change to the point where she could adequately care for Z and protect her from future harm, in any event. [ 61 ] With that said, Kennedy noted that the Z ’ s access with her mother and siblings would remain the same pending court approval of a permanent care order.

In the same vein, counselling and therapy would continue to be offered to the mother and her daughter. [ 62 ] Kennedy said the agency recommended continuation of agency supervision under court order insofar as Y is concerned. October 25, 2012 Affidavit [ 63 ] In late October, 2012 Kennedy confirmed that Z was continuing to see Ken Osbourne for therapy and that the agency was receiving regular updates from him.

Y was back with his mother, with the agency ’ s approval. [ 64 ] Kennedy acknowledged that he spoke to the mother before a court appearance in mid September 2012 and confirmed that she requested resumption of family support services. However, the agency took the position that she had been taught all of the skills that the family support program could offer and took the position that the real issue was her capacity to follow through with the application of the skills already taught. Kennedy said the mother was encouraged to make contact with the Parenting Journey Program, if she felt she

required additional or further support. (As noted elsewhere, the mother did so) [ 65 ] Kennedy said that in mid September, 2012 there had been referrals and allegations about youth in the community coming and going from the B. residence and being engaged in drug use while there. B. firmly denied any drug use in her residence whatsoever, to her knowledge. As indicated elsewhere, on those occasions when she returned from appointments in the city and there were teenagers at her home with the apparent blessing of X and/or Y, she asked those individuals to leave immediately.

She reiterated that she was concerned about what was happening in her absence but she was, at the time, travelling to Halifax three times weekly for professional visits and access with Z. [ 66 ] In considering the foregoing, I observe that none of the complainants or referral sources were identified and, accordingly, the allegations were unsubstantiated. Nonetheless, some agency representatives continued to be concerned that the B. residence was a “ popular hang out spot for the children from the community ” .

I find the agency ’ s propensity to rely on unsubstantiated rumour and innuendo did nothing to allay B. ’ s own suspicions that the agency ’ s agenda and the family ’ s fate were already sealed. [ 67 ] Kennedy wrote about a police service referral in mid October, 2012 having to do with Y. However, I have disregarded that portion of the evidence as it was unsupported in the evidence from the police authorities. [ 68 ] However, around the same time, Kennedy said that the mother disclosed her own concerns about Y staying at an inappropriate location and being provided with drugs and alcohol while there.

Kennedy said the mother went as far as to identify other individuals who might assist with the agency ’ s investigations. [ 69 ] There were efforts to convene a meeting to include Kennedy, the mother and Y but that did not come to fruition before the end of October, 2012. As of the end of October, 2012 the stated position of the agency, according to Kennedy, was: that M. B. was unable to exercise adequate parental authority with her children. The agency does not support the return of Z to this home environment.

January 22, 2013 Affidavit [ 70 ] Kennedy updated the family ’ s circumstances in late January, 2013 by reaching back in time and stating that by late May, 2012 X had left her mother ’ s home and returned to the Halifax area. Reportedly, the mother did not know precisely where her daughter was staying, and according to Kennedy, the mother did not inform the agency that X had left her care. [ 71 ] The mother had taken steps to register X in school following her return to the family home but reportedly X only attended a few days and then stopped.

Kennedy said that the mother didn ’ t inform the agency that X was refusing school attendance and said that she did not ask for agency help to address the issue in any event. [ 72 ] Kennedy said that when X was returned to the home, the agency wanted to see if the mother could set reasonable limits to protect X from harm and would ensure school attendance. As far as the agency was concerned B. did not meet its expectations. [ 73 ] Kennedy said that Y initially did well following placement with his maternal grandparents.

However, he said the agency learned in late May, 2012 that Y was having overnight visits with his mother without prior agency approval. It was learned that he (once again) stopped attending school but he claimed the agency was not informed. [ 74 ] Kennedy said that by the end of May, 2012 the H. were not prepared to continue responsibility for Y because he kept running

back to his mother ’ s home. Kennedy said that he proposed that Y spend weekends with his mother and that the H. should continue to provide a home during the week. He said that C.

H. reluctantly agreed to this proposal on the understanding it would not be a long term arrangement. [ 75 ] He again mentioned Carmichael ’ s reception by the mother and added that she was also very negative generally about the agency ’ s involvement and that she blamed the agency for the problems she was experiencing with her children. [ 76 ] In late August, 2012 Kennedy said he met with the mother to discuss school placements for Y and X and to also discuss family support services. On that occasion, the mother disclosed legal difficulties Y was having. The same was said with regard to X.

Kennedy said that the mother disclosed problems in making Y adhere to a regular curfew. [ 77 ] Kennedy conceded that he had observed an improvement in the mother ’ s presentation over the last year. He candidly attributed that improvement to the involvement of Dr. Gretta Taylor. Kennedy said that the mother was observed to be better able to interact positively with him, personally and he also acknowledged that the mother had made advances identifying and coping with her emotions.

Nonetheless, Kennedy insisted there were outstanding concerns about the mother ’ s capacity to maintain her improvements when stressed or overwhelmed by her personal circumstances or the demands of her children. [ 78 ] Kennedy visited the mother ’ s new residence in mid January, 2013. Y was there and his demeanour was described in positive terms by Kennedy. [ 79 ] M. B. discussed the involvement of C. T. of the Alternative School in [...]. There was also discussion regarding Y ’ s school attendance and his mother ’ s perception of observed improvements.

In the same vein, B. informed Kennedy of the involvement of Donette Getson from the Parenting Journey Program. [ 80 ] Kennedy recounted his version of the mother ’ s short term involvement with one D.B.. B. disclosed to Kennedy an incident of domestic violence which she said prompted her to terminate the relationship with this gentleman. B. admitted to Kennedy that she had not reported the foregoing to the police or to the agency. [ 81 ] Kennedy said that at of the end of January, 2013, and as at the hearing, his opinion was that M. B. was unable to exercise adequate parental authority with her children.

He said the agency does not support return of Z to her home. [ 82 ] Kennedy was aware of the H.s ’ intention to advance a so-called alternative plan for Z ’ s care. After reviewing their plans, the agency took a decision that it would not support them. Kennedy ’ s Testimony [ 83 ] Kennedy reiterated in the courtroom that the agency fears repetition of the fate for Z as befell Y and the other siblings.

He reiterated that there were outstanding and unresolved concerns surrounding the mother ’ s ability to safely and securely parent Z because of a complex combination of the mother ’ s personal shortcomings and challenges in meeting her own needs. [ 84 ] Kennedy ventured to say that although there have been outward appearances or signs of progress by the mother, they are not sufficient and, indeed, may be false, to the point where the agency will not support her plan for repatriation.

This was a clear attack on the mother ’ s credibility and trustworthiness, in and out of court. [ 85 ] Kennedy testified that the agency wants Z to have a secure home and life - elsewhere than with her mother. However, he said

that the agency is prepared to support ongoing contact between mother and daughter, provided it is outside a formal court order. [ 86 ] On cross-examination, Kennedy reaffirmed that Y and X were both “ out of control ” during their residential placements in Halifax. He said the agency was quite concerned about their circumstances.

However, he was vague, if not evasive, on who ultimately was responsible and accountable for locating the children and returning them to their placements when they were absent without permission or when their whereabouts were otherwise unknown. [ 87 ] Kennedy acknowledged that the agency was well aware of the BPD diagnosis attributed to the mother.

However, when asked why the agency referred the mother to Jan Cressman for counselling, he was unable to speak to Cressman ’ s qualifications or training regarding BPD and frankly stated “ I didn ’ t delve into her C.V. ” And he offered that his memory was unclear about why the agency settled on Cressman for the referral. Nonetheless, Kennedy did recall that the mother cooperated with counselling and services as suggested and recommended by the agency. [ 88 ] Oddly, given its significance in the case, Kennedy said he was aware Dr.

Gretta Taylor ’ s involvement - but professed that he could recall few details regarding her engagement and her work. He could not recall the transportation arrangements for the mother to see Dr. Taylor - other than to note that the agency had agreed to pay for it. [ 89 ] When faced with voluminous access facilitators reports (350 pages), Kennedy was also unable to recall any specific issues or concerns identified by agency facilitators.

This is important because he had made sweeping, negative generalizations about the mother ’ s parenting capacity, which presumably took into account mother/daughter interactions during dozens of visits. He struggled to find anything negative about the mother in the reports or, indeed, anywhere else, supporting his broad assertions. [ 90 ] On another front, when asked to elaborate on the agreed “ rollover ” of the former proceedings into the current one, Kennedy was unable to provide any cogent explanation despite full access to agency and court records.

Given that it occurred with court approval at a critical juncture, and for reasons stated on the record, the witness ’ memory for events and his credibility were certainly shaken. [ 91 ] Kennedy acknowledged that the agency was getting regular reports from Ken Osbourne regarding the bonding between mother and daughter. He agreed that joint counselling sessions involving both mother and daughter were approved by the agency at Osbourne ’ s request. When reminded that the joint sessions were ultimately terminated, Kennedy could not recall the circumstances under which that occurred.

In fairness, however, I find it more likely that social worker Maggie Stewart was a key player at that stage and likely was involved in the decision making. Also, in fairness to him, there were times when he was away from his employment and therefore did not attend some meetings when critical decisions were made.

Allowing that he was not a participant for several weeks during the summer of 2012, when asked why he did not take steps later to self-inform and “ get up to speed ” about developments in his absence, Kennedy was vague and defensive, in my opinion. [ 92 ] During cross-examination, Kennedy unabashedly agreed with the proposition put to him that the agency really could not help Y, in any event, and that the agency had endorsed the transition from the grandparents back to his mother because there were no other viable options.

He agreed that the supervision order which accompanied Y ’ s return home was approved by the agency. [ 93 ] Giving some credit where credit is due, Kennedy was candid about Y by essentially saying that the agency found itself “ between a rock and a hard place ” .

Unfortunately, and with respect, I find the witness was not as generous and forthcoming when it came to evaluating the mother ’ s capacity and prospects in the face of the same challenges. [ 94 ] Pressed on the issue of the mother ’ s current parenting capacity and about gains or advances in recent months, Kennedy simply insisted those gains were “ not global enough ” to support Z ’ s repatriation. He struggled to elaborate. [ 95 ] Kennedy acknowledged that the return of both X and Y to the mother ’ s home was very stressful and demanding.

However, he agreed that the only extra services offered to the mother was a family support worker (Carmichael), and the professional work being done by Dr. Gretta Taylor. [ 96 ] As mentioned elsewhere, the agency subsequently decided to end family support services and to press on with permanent care

and custody for Z. [ 97 ] Kennedy agreed that after Carmichael ’ s services were terminated that the mother later requested reinstatement - but the request was turned down by the agency.

Kennedy justified this by saying that she had been provided with family support services for several years and there was nothing more to be gained. [ 98 ] When asked directly if the agency ’ s final position at the hearing was “ truthfully what the agency was looking for all along ” , Kennedy said, “ yes ” . [ 99 ] Kennedy was aware that the mother had self referred to the Parenting Journey Program which is not funded by the agency; but he seemed to be unaware of the service provider ’ s objectives, policies, level and intensity of service, etcetera. [ 100 ] As a lead worker for the agency, Kennedy was present through much of the hearing and had the benefit of Dr.

Taylor ’ s evidence. Before the referral to Dr. Taylor, Kennedy admitted that the mother was doing everything that she could regarding her BPD. After hearing Taylor ’ s evidence, Kennedy was still sceptical about whether the treatment and the likelihood of long term improvements. [ 101 ] Regarding access should a permanent care and custody order be granted, Kennedy reiterated that it was the agency ’ s position that court-enshrined access would compromise or jeopardize the chances of successfully placing Z for adoption (which is the agency ’ s goal).

Kennedy conceded that termination of the mother/daughter contact would emotionally harm Z (according to the expert evidence) but opined that the benefits of a permanent adoption placement outweighed the potential harm. He described the exercise as a difficult balancing act in order to get what he described as the least detrimental outcome. [ 102 ] Kennedy clarified that both X (while in care) and Y had short term placements at the secure treatment facility in [...].

He acknowledged those temporary placements did not have any obvious long term benefits. [ 103 ] Kennedy agreed that the mother was always keen on Y attending school and obtaining an education. He agreed it would be difficult, if not impossible, to actually force a teenager to continue or to resume schooling if he or she decided not to. [ 104 ] Importantly, Kennedy agreed that the statutory deadline for possible orders other than permanent care falls in the month of December, 2013.

However, he asserted that Z ’ s placement has been languishing for a long time and that the agency seeks a determination at this time and resists delaying the outcome until the time periods have been maximized under legislation. [ 105 ] On cross-examination, regarding the mother ’ s interest in the whereabouts of X when she was in Halifax and thought to be involved with the Occupy Nova Scotia movement, Kennedy admitted X simply would not tell her mother where she was at the time and he conceded it was presumptions on his part to suggest, as he did in his affidavit, that the mother did not want to know where her daughter was.

He ultimately agreed the mother was trying to find out the precise whereabouts of her daughter at all material times, albeit unsuccessfully, and that she was at the very least maintaining text communication. [ 106 ] As Kennedy concluded his testimony, I was left wondering if he and his colleagues have been expecting and demanding more of the mother than is reasonable given the agency ’ s own track record (for X ’ s and Y ’ s care and supervision) and whether there is a double standard in play.

Kari Trethewey [ 107 ] Kari Trethewey (formally Kari Whitfield) is a veteran child protection social worker who is familiar with M. B. ’ s family and who was involved with and is familiar with former proceedings by the agency under the file FLBCFSA-071955A. Exhibit 2 is a voluminous bundle of evidence from the former proceedings which includes two previous Plans of Care for the children W, X, Y and Z

which she authored in late October, 2005 and early July, 2006, respectively. [ 108 ] I have reviewed but will not attempt to regurgitate the five affidavits that Trethewey submitted in the former proceeding. I will highlight some aspects of her affidavits which were given attention during testimony in the present case. July 7, 2005 Affidavit [ 109 ] This 40 page affidavit spans 195 paragraphs. It purports to set out the background circumstances which triggered the agency ’ s involvement and the commencement of proceedings in 2005.

In June of that year, a risk management conference was convened by the agency and position taken that despite agency involvement with the family over the many months and despite offerings of services, that the perceived risks to the children had not decreased and that there had been a deterioration in the mother ’ s ability to respond to and meet the children ’ s needs. [ 110 ] By that time a psychiatrist, Dr. Milliken, had already offered a borderline personality diagnosis of the mother.

And, perhaps not surprisingly, the agency believed there was a significant mental health component impacting on the mother ’ s ability to benefit from services and to make the necessary changes in her parenting to reduce the risk to the children. There was concern about a reported lack of follow through by the mother with psychiatric and psychological services, and evidence that the mother was unable or unwilling to discipline and respond to the challenging behaviours of her children.

Despite the depth and breadth of the many concerns at the time, the agency ’ s opinion was that the risks to the children could be reduced by refining services under and through proceedings that would see supervision of the family. There was no perceived need to take the children into care at that time. Incidental to the proceeding, a Parental Capacity and Psychological Assessment was authorized. December 12, 2005 Affidavit [ 111 ] By December, 2005 B. reportedly was continuing counselling/therapy with Mary Haylock and professional assessments were still pending.

The upshot of Trethewey ’ s report at the time was that the risk of harm to the children had not significantly increased to the point that removal from the mother ’ s home was necessary. July 10, 2006 Affidavit [ 112 ] In July, 2006 Trethewey was reporting that a Parental Capacity and Psychological Assessment of the mother had been carried out by psychologist Elaine Boyd (now Boyd-Wilcox). Trethewey made it clear that no follow-up treatment and/or therapy was recommended by Boyd.

However, continuation of family supports and services were recommended and, according to Trethewey, were being pursued by the family. [ 113 ] Trethewey wrote that at a risk management conference held in early June, 2006 M. B. had volunteered that she had been diagnosed with a Bi-Polar Disorder but she noted that Boyd had actually ruled out such a diagnosis. Boyd was cited as believing that the mother more likely had a Borderline Personality Disorder (BPD) and that she also met the criteria for so-called Passive-Aggressive Personality Disorder.

Other observations and opinion offered by Elaine Boyd at the time are canvassed elsewhere in this decision. [ 114 ] Trethewey wrote in July that it was the decision of the protection team that “ inasmuch as the children were not at risk at present but rather more likely at risk on a long-term basis ” that the mother should be given more time to make the necessary changes to successfully parent independently of the agency. Accordingly, at the time, the agency sought a further six month supervision order with enhanced services. October 16, 2006 Affidavi t

[ 115 ] Trethewey ’ s mid October 2006 affidavit briefly reviewed the legal history to that point and confirmed that the children had remained in the sole care and custody of their mother under agency supervision.

After mapping out the reports of various professionals and observers of the family, Trethewey wrote as follows: Your deponent advised the group that from the Agency’s standpoint there are no current protection concerns and there have been no investigations since September, 2006, regarding M. or the children; your deponent advised that things appear to be going well and that the agency appeared to be on track for terminating its involvement with M. and the children in December, 2006: December 4, 2006 Affidavi t [ 116 ] By early December, 2006 the statutory deadlines for the maximum involvement of the agency under a supervision order or orders was about to expire.

The legal options at the time were dismissal of the proceeding or an order for permanent care and custody of the children. [ 117 ] Trethewey wrote that the mother had been somewhat inconsistent in attending appointments with counsellor, Mary Haylock, but that was due in part to the demands of parenting. And, to her credit, the mother reportedly was attending school while juggling parenting responsibilities.

That said, Haylock told the agency that she was satisfied with the progress the mother was making and that overall the mother had exhibited stabilization in her life and had demonstrated the ability to cope with things differently than in the past. The agency ’ s family support worker was similarly reporting no concerns regarding the safety and well-being of the children. [ 118 ] At a risk management conference in December, it was noted that the professionals involved with the family were: ... generally positive in their assessment of Ms.

B.’s progress; none of the professionals in question have reported child protection concerns and Ms.

B. is noted to be coping well with crises in her life as they arise and it was further noted that she and the children have maintained a consistent pattern of stability at home, in school and in the community; there have been no new referrals received since September 26, 2005, which have met the criteria needed to warrant investigation. [ 119 ] Accordingly, Trethewey wrote that she advised the protection team at the time that she had come away satisfied that the children themselves have no protection concerns and that they and the mother no longer required support services.

That reinforced a decision by the agency to motion for dismissal of the underlying application in early December, 2006. [ 120 ] An end to the proceedings did not mean the mother would not have to face the accumulated evidence again. Although there were no contests as such during 2005 -2006, the agency moved to introduce the former evidence into the present proceedings. It went in by consent on the understanding that examination rights would be honoured. The result was a bloated (current) hearing as the parties waded through what had been presented years ago. A bloated decision is another obvious byproduct.

Agency Plan of Care (October 27, 2005) This Plan of Care gives a succinct overview of agency services intended to be provided to the family to alleviate the prevailing challenges within the home and the criteria by which the agency was going to determine when its care and custody or supervision was no longer required. Agency Plan of Care (July 6, 2006)

[ 121 ] In a similar vein, the July, 2006 Plan of Care briefly describes the services being provided to the family and the agency ’ s expectations leading up to its eventual termination of the case. Trethewey ’ s Testimony [ 122 ] During questioning about the former proceeding, Trethewey confirmed that the agency was alert to a BPD diagnosis which prompted its referral to Mary Haylock for counselling services.

However, Trethewey was another witness who was unable to state Haylock ’ s qualifications to address BPD or otherwise explain why the referral was made to Haylock. [ 123 ] Trethewey was unfamiliar with reports of Post Traumatic Stress Disorder symptoms or diagnosis in 2006. She is generally well aware of the hallmarks of the disorder. She was alert to the mother ’ s episodic depression and at least one suicide attempt. She recalled that the mother was struggling as a single parent with four children and few community or family supports and that she had just come out of an abusive domestic relationship.

Trethewey also confirmed that the agency confined itself to referrals for services which had been recommended by Elaine Boyd in her first assessment and did not stray into other areas. [ 124 ] Trethewey was repeatedly asked to confirm (which she did) that the agency was well aware in 2006 of the BPD diagnosis. [ 125 ] Exhibit 13 is an excerpt from the Diagnostic and Statistical Manual of Mental Health Disorders which provides a generally accepted overview of BPD. At least five of nine of the delineated criteria must be present to confirm a diagnosis.

Despite identification of BPD (which is not to be confused with Bi-Polar Disorder and other conditions), Trethewey said there was no therapeutic referral targeted at addressing or alleviating the underlying disorder. [ 126 ] Despite the absence of a focussed referral, Trethewey took the position that the presenting difficulties were being adequately addressed by Mary Haylock during the course of her professional work. [ 127 ] Trethewey also had knowledge of the second round of legal proceedings and volunteered that in the January - September, 2011time frame the mother had issues and difficulties during access visits which centred, principally, on the mother ’ s ability to adequately supervise and discipline the children. [ 128 ] When invited to point to specific examples (in Exhibit1) where the mother fell short of the agency ’ s expectations during access visits, the witness struggled and was hard-pressed to substantiate her broad sweeping allegations.

Not to overstate the point, she was not the only agency social worker who had this problem. [ 129 ] Trethewey did acknowledge that the mother episodically requested increased access to her children - in particular, Z in recent times. Trethewey, for some reason, was somewhat reluctant to acknowledge the mother ’ s requests for improved access opportunities with Z, but she eventually conceded that agency records did disclose improvements in the arrangements despite some resistance from the foster parent.

I should add that all of this is against the background of Trethewey ’ s knowledge of the prior work of the agency with Y and X, including their short term placements at the secure treatment centre. She was well aware of the challenges the mother faced as the older children were repatriated and, of course, the agency ’ s own difficulties in managing placements for those children when they were in agency care. [ 130 ] By way of new evidence, Trethewey said that in early April, 2013 she went to the mother ’ s home early in the day.

She wanted to assess whether a safety plan had been put into place for S.A. ’ s infant daughter (discussed elsewhere). The agency had directed that S.A. and W B. were not to be together in the presence of their child because of “ ongoing concerns about W ’ s volatile behaviour ” . Trethewey said X answered the door and that Y was also there. To her, it appeared he had been sleeping on the sofa.

[ 131 ] Trethewey said she observed S.A. come out of a bedroom, later identified as Y ’ s room. Trethewey said S.A. confirmed that she was aware of the agency ’ s expectations with respect to contact with W. [ 132 ] Trethewey asked to check the entire residence. This was agreed to by B.. Trethewey did not observe W on that occasion. However, in the mother ’ s bedroom she found another young individual, one N.R., and a young male child whose name she said was E. [ 133 ] Before leaving, Trethewey said that she observed the home to be very untidy. She did not elaborate.

Maggie Stewart [ 134 ] Maggie Stewart is a social worker employed by the agency. She submitted an affidavit dated January 21, 2013. Stewart noted that Z has resided in two foster homes since the proceedings started. She was initially placed in the home of one E ( editorial note- to be known as E to avoid confusion with another party ) where she remained until late November, 2010. She was then transferred to another foster home where she remained until June, 2011.

And finally, Z returned to the E home where she currently resides. [ 135 ] Stewart confirmed that shortly after Z was taken into care in early September, 2010 she was referred to therapist Ken Osbourne who provided regular therapeutic support until she moved from her first foster placement. Services with Osbourne resumed after the child ’ s return to the first foster home in June, 2011. Stewart assumed responsibility for Z ’ s “ children in care file ” in late September, 2011. Since then, she has maintained regular contact with the foster mother, and with Ken Osbourne.

She said she has also had regular contact with the child, either at school or in the foster home. Based on her own observations and review of agency file materials, Stewart believes that she has developed a good sense of Z ’ s needs and how they might best be met. [ 136 ] According to Stewart, Z needs structure and routine in her home environment, and she does best when there are clear and consistent expectations placed on her regarding her behaviour. Stewart stated that Z needs a caregiver capable of following through on disciplinary consequences.

Moreover, Stewart stated that Z needs nurturance by which she meant “ loving care and attention ” . It is Stewart ’ s belief that Z receives such nurturance from M. B. and the current foster mother. [ 137 ] Objection was taken to opinions Stewart attempted to express regarding the root causes of past concerns surrounding Z and the observed, gradual improvements in her behaviour after she was taken into care. Not surprisingly, objection was also taken to hearsay references to events about which Stewart had no direct knowledge.

At one stage Stewart said as follows “ For the most part, my direct conversations with Z have been fairly superficial. I left the exploration of sources of fear, stress and anxiety for discussion with Mr. Osbourne ” . [ 138 ] In my opinion, the objectionable portions of Stewart ’ s evidence can be, and they have been, addressed by me more appropriately elsewhere in this decision. [ 139 ] Stewart wrote that as a children-in-care social worker, it is her belief that all children are potentially candidates for adoption, despite the challenges in achieving that outcome for some children.

She said it is the responsibility of the agency to try to place children for adoption wherever possible. She noted this is the expectation of the Department of Community Services for children in permanent care and custody. [ 140 ] Stewart said that it is her understanding that foster care is not meant to be a permanent home - rather temporary until a child can either go home or be adopted.

According to her, adoption provides children with a sense of security and stability as a member of a family that is not available through long term foster placement. [ 141 ] Stewart confirmed that it is the agency ’ s intention for Z to remain in her current foster home until it is possible for her to be placed for adoption. However, she said it is also the agency ’ s intention to maintain contact between Z and her mother and siblings “ for

as long as this is possible, provided it does not interfere with her prospects for adoption and remains in her best interests ” . [ 142 ] In her testimony, Stewart acknowledged that she is aware of Ken Osbourne ’ s position on mother/daughter contact and said that this is reflected in the agency ’ s current plan albeit not intended to be captured in a court order. [ 143 ] The witness made reference to policies or directives of the department that access, even when agreed, ought not to be embodied in court orders.

The policies or directives she was referring to were not introduced into evidence. [ 144 ] In her testimony, Stewart confirmed that she was also the child-in-care worker for both Y and X in September, 2011. She found her assignment very challenging and acknowledged that when both of those children were placed in residential settings in Metro that each child was frequently absent without permission and that Y became involved in the Youth Criminal Justice System. [ 145 ] Stewart was aware that M.

B. frequently went to the city to check on Y, in particular and had expressed concerns about him and his sister getting wrapped up in the so-called Occupy Halifax movement. [ 146 ] Stewart also confirmed that Y had a brief stabilization placement at the [...] facility which did not prove terribly helpful. [ 147 ] Stewart acknowledged that at one stage she met with Ken Osbourne who recommended that an access assessment be conducted and that the Parenting Capacity Assessor perform that task.

She confirmed that the agency did not follow Osbourne ’ s advice. [ 148 ] Stewart seemed to have limited knowledge of the mother ’ s additional access request for Z and the resistance or interference being proffered by the foster mother. [ 149 ] Stewart said she learned of Dr. Gretta Taylor ’ s involvement and conceded that since the mother has been consulting with Dr.

Taylor that she (Stewart) has noticed improvements in the mother ’ s presentation, eg. better management of emotions, more effective and appropriate expression of concerns, etcetera. [ 150 ] At the end of the day, Stewart confirmed that she was under directions to oppose court ordered access in the event a permanent care and custody order is approved for Z. Tina Peddle [ 151 ] Tina Peddle is an adoption worker for the Department of Community Services, Lunenburg District Office. It is her responsibility to locate appropriate adoptive homes for children placed in the permanent care and custody of the agency.

Her duties include identifying and selecting potential adoptive homes, determining children ’ s placement needs and readiness for adoption, preparing children for the transition to a new adoptive family and following through with the adoption process from placement to legal conclusion. [ 152 ] Peddle identified Z as a child with “ special emotional and behavioural needs ” . She cited Maggie Stewart, the child ’ s social worker, as the source of these attributes. [ 153 ] Peddle ’ s affidavit speaks for itself but it canvasses various placement methods currently used.

Statistically, she reported that as of December 31st, 2012 there were 121 waiting families approved for adoption in Nova Scotia. Of those, 30 families reportedly had expressed an interest in potentially adopting a female Caucasian child of 10/11 years of age. According to Peddle, departmental statistics

also indicate that from April 1st to December 1st, 2012 there were 11 children in the age category of 11 years and older who were actually placed for adoption. [ 154 ] Peddle explained that under

section 7A of the CFSA there is provision for Oneness Agreement. She said these are agreements for the purpose of facilitating some level of contact between adoptive parents and the child ’ s birth relatives. She said these Agreements are not legally binding and that they have no effect on the legal status of an adoption order.

She wrote, “ Openness in adoption can be seen as a continuum from the sharing of non-identifying information such as letters to direct contact ” . [ 155 ] Peddle ’ s evidence was that any plan to enter into an Openness Agreement must be in the child ’ s best interests and be child focussed.

She stated an Agreement must not present a risk to a child ’ s health, safety or well being; and will only occur if the birth family, adoptive parents and child (where appropriate) are able to support the adoption itself and contact plans. [ 156 ] Peddle said that the Department does not maintain statistics on the types of contact which is occurring under Openness Agreements. [ 157 ] Peddle ’ s evidence, based on her experience, is that the most common form of contact is the provision of non-identifying letters and possibly photographs, perhaps once or twice yearly, facilitated by Department offices.

She said she is aware that some adoptive families have direct personal contact with the birth family but she described these as rare. [ 158 ] During her testimony, Peddle acknowledged that she has not been involved with a permanent care and custody case in which a final order has recognized and authorized access by a parent or other family member. She said it was difficult to say what the impact of court sanctioned access in a permanent care and custody order might be in terms of the prospect for adoption placement but she reiterated that most adoptions follow orders in which no access has been ordered.

She speculated that if there is court ordered access the pool of potential adoptive parents would be smaller. [ 159 ] In cross-examination, Peddle confirmed that she was aware of Ken Osbourne ’ s counselling role and his opinion on potential severance of the mother/daughter contact. Notwithstanding Osbourne ’ s opinion, she said that the agency ’ s position has not changed (i.e. re court sanctioned access). [ 160 ] Peddle was unable to say how many potential adoptive families would accept a so-called high needs child at this time.

Regarding statistics, she cited about children in the 11 years of age category, she was unable to give any data regarding gender.

She was unable to say how many of those children have special needs and of those “ 11 years and older who are placed for adoption ” she was unable to give an elaboration on placement in relation to specific ages. [ 161 ] Peddle confirmed that she was not a participant in the agency team decision to seek permanent care and custody for Z. [ 162 ] Also in testimony, Peddle acknowledged that she had not, in fact, read all of Ken Osbourne ’ s reports - indeed, she had seen only one report in the last six months preceding the hearing and that report she saw the day before the hearing commenced. [ 163 ] Peddle also acknowledged that although she has spoken to social worker Maggie Stewart and seen the final Plan of Care, she has not read any of the background professional reports and many affidavits introduced or proposed to be introduced at the hearing.

She explained that that is because most of her work is done after an order is granted. At that stage, she may then seek access to the child protection file, consult with various professionals, etcetera, in order to facilitate potential adoption placement. [ 164 ] When pressed in cross-examination, Peddle confirmed that she saw the agency ’ s final Plan of Care just before the hearing commenced and that she had last spoken to social worker, Maggie Stewart, once between March, 2012 and the start of the hearing.

The final contact with Stewart was reportedly to assist with preparation of Peddle ’ s own affidavit which would be introduced at the hearing. Simone Fournel

[ 165 ] Simone Fournel is a social worker who assumed responsibility for the agency ’ s file in relation to the mother and Y. (Her co- worker, Maggie Stewart, has been responsible for the agency ’ s file in relation to Z). Her involvement started in mid-February, 2013. [ 166 ] In late March, co-worker Heather Haughn contacted her and they discussed Haughn ’ s work with W B. and one S.A., and their newborn child. (See below.) [ 167 ] According to Fournel, B. disclosed that Y had stopped attending school and refused to return. The mother disclosed that she tried to get her son to go back but was unsuccessful.

The mother reiterated her concern about the failure to attend. She subsequently went to B. ’ s residence. She met with Y who confirmed he was not attending school. [ 168 ] There was some tension between the worker and the mother when the worker attempted to engage the mother in discussion about X ’ s health status. [ 169 ] B. disclosed that A. occasionally visits with the newborn but that W did not do so. The worker observed the home to be tidy. [ 170 ] In late April, 2013 Fournel made two visits to the mother ’ s residence. She observed two (unidentified) females at the residence, plus X.

There was some attempt to discuss Y ’ s circumstances directly with him but he refused to engage. According to the worker, the house was untidy and had a strong smell of urine. The worker characterized the visit as unproductive because, according to her, B. was angry and eventually terminated their discussions. [ 171 ] Fournel said that the mother telephoned her later and explained that she was upset because a friend of hers had recently died. She also expressed renewed concerns about the plans for Z. Following the brief telephone conversation, Fournel returned to the B. residence.

In Y ’ s presence, there was discussion about potential options for his education. Asked directly if Y had mentioned any particular issues surrounding the school he was supposed to be attending, the worker said he simply stated he was “ bored by it ” . [ 172 ] The worker said that X was also present at the second visit. She said that X confirmed that she was living in Halifax but spending time in B. and, when there, staying at her mother ’ s home. [ 173 ] There was brief discussion with the mother about making arrangements for Y to continue to see his counsellor, Stephen Young.

And, according to the worker, B. also disclosed that Y had left her residence for a few days at the end of March because he reportedly was worried about “ getting beaten up ” by unidentified individuals. Fournel said that the mother had contacted the police who helped her locate Y in Halifax, He was later returned to his mother ’ s house. At the time of the second visit, the residence was “ significantly more tidy ” . [ 174 ] Fournel said that she met again with the mother on May 2nd, 2013.

There were discussions about Y ’ s counselling and, according to Fournel, the mother informed her that she [B.] was making plans for X to return to B. and live with her. She said the mother expressed hope that X would resume schooling and if that occurred, it might be easier for Y to regain interest. Heather Haughn [ 175 ] As noted , Heather Haughn is a social worker for the agency who is responsible for the file relating to W B., S.A., and their infant daughter, Sa., born in late March, 2013. [ 176 ] Haughn wrote that in mid March she met with S.A..

She said S.A. provided information regarding W ’ s living arrangements

(which have been a concern in the present case). S.A. informed the worker that W was staying with his mother, two nights per week. [ 177 ] Shortly after, Haughn said she spoke by telephone with X B.. According to Haughn, X informed her she was staying with her mother. She also said that X confirmed that W had stayed at the mother ’ s home the previous night. [ 178 ] Haughn met with W around mid-March. She asked him where he was living. According to her, she needed that information in order to set up transportation for him to attend visits with his newborn daughter.

She said W told her he goes back and forth between his mother ’ s home and an apartment being shared with S.A.. His actual residential

schedule or routine was unclear to her. Medical Evidence [ 179 ] The medical evidence figured prominently at the hearing. It spans several years. I have given it more attention than usual because of its significance in the parties ’ respective legal positions. Dr. John Christian Pugh [ 180 ] Dr. John Pugh is a veteran emergency department physician. He gave evidence surrounding Z ’ s admission to the local hospital about two and a half years ago when she presented with what he described as abnormal behaviours, altered consciousness, “ divergent gaze ” , “ episodic lashing out ” , etcetera.

I find it unnecessary to elaborate on his examination and initial diagnosis given that Z was transferred to the IWK on his direction. Dr. Pugh ’ s essential diagnosis was that the child may have ingested antidepressants or other prescription medications. [ 181 ] Although there was initially concern about the risk of death, Dr. Pugh confirmed that clinical tests tended to point away from such a high risk scenario. [ 182 ] On cross-examination, Dr.

Pugh confirmed that his working hypotheses was that the child had experienced what he described as a toxic ingestion or, possibly, was experiencing some sort of seizure disorder of an unknown origin. Dr. Kevin E. Gordon [ 183 ] Dr. Kevin Gordon is a Pediatric Neurologist at the IWK Health Centre. Z was seen by him in late March, 2011. He had seen Z the previous July when she was transferred to the IWK following ingestion of medications at home, was admitted to the local hospital, and then transferred.

That incident was described as a “ single abnormal toxicological result ” [ 184 ] The working diagnosis was a toxic ingestion of substance - with a possible alternative diagnosis of a seizure disorder. [ 185 ] Dr. Gordon ’ s concluding 2011 comments were that there had been no recurrent events since the incident the previous July. He noted that there were no confirmation tests done regarding the ingestion in July and, in any event, that the recovery did seem unusually quick for an ingestion. [ 186 ] Dr.

Gordon noticed that there had been no recurrences of anything resembling a seizure and he conceded it was possible that she had a “ single event ” .

[ 187 ] Another option referred to by Dr. Gordon was a “ confusional migraine ” . He stated that the speed of recovery would be consistent with migraine. [ 188 ] In the final result, Dr. Gordon was unable to assign a cause for the initial episode of diminished level of consciousness which the child presented with on admission to the IWK. [ 189 ] Dr. Gordon did not see any need for follow up assessment by him. Dr. Amy E. Ornstein [ 190 ] Dr. Amy Ornstein is a pediatrician and a Medical Director, Child Protection Team, IWK Health Care Centre at Halifax.

She confirmed that a toxicity screen was performed while Z was an inpatient at the Centre. Although there was a request that the child be screened for tricyclic antidepressants (TCA), such tests were not done. Dr. David R. Mulhall [ 191 ] Dr. David Mulhall is a psychiatrist based in Kentville. Child protection worker Robert Snair referred B. to him. There was a 1.5 hour consultation in late March, 2011. Dr. Mulhall had access to some agency documents including a Parenting Capacity Assessment completed by Elaine Boyd-Wilcox in May, 2006. [ 192 ] Dr. Mulhall ’ s written report includes a lengthy

summary of disclosures by the mother. His assessment was primarily to determine the presence of active mental illness/mental health issues. He opined that there was no evidence of a current, significant major mental illness, but believed that her primary historical psychiatric diagnosis was one of Borderline Personality Disorder (BPD). [ 193 ] Dr.

Mulhall thought that B. might derive some modest benefit from the use of low dose Bupropion to reduce what he described as emotional reactivity. [ 194 ] He concluded it was unlikely that there would be a role for formal involvement with psychiatry and he ruled out other psychotropic medication. He also reaffirmed that she might benefit from previously recommended involvement in self-esteem programs and continuing parent management programs along with family therapy involving her children. [ 195 ] Dr. Mulhall stressed that his assessment did not measure B. ’ s parenting capacity. Dr. Richard W. Kydd [ 196 ] Dr.

Richard Kydd is B. ’ s personal physician. In a report authored in early May, 2012 he confirmed the following: [ 197 ] He saw B. in early August, 2011. At the time she was treated for a medical condition with antibiotics over a ten day period. She was also given a prescription for an antidepressant that she had already been taking on a regular basis. And, she was prescribed an anti- anxiety type of medication.

Both the antidepressant and anti-anxiety medications included 30 tables with five refills. [ 198 ] B. was not seen again until early April, 2012 when an antibiotic was prescribed for a urinary tract infection.

[ 199 ] There was an annual check up in March, 2012. The patient disclosed that she had not used up all of the previously prescribed medications for anxiety and depression. She disclosed she was seeing a psychologist but did not disclose any concerning issues. Dr. Kydd was not privy to any of the psychologist ’ s file materials. Intensive Short-Term Dynamic Psychotherapy (ISTDP) [ 200 ] I will not attempt a full dissertation regarding ISTDP which received a great deal of attention during the course of the hearing.

I took from the evidence that it is a type of short-term psychotherapy whose origins are largely attributable to an internationally recognized Canadian psychiatrist one Habib Davanloo. [ 201 ] The main goal of this type of therapy is to help a patient overcome what is commonly referred to as internal resistance to experiencing ones true feelings about the past and about the present. It was said that often such feelings have been warded off because they are too painful or too frightening for the patient.

By intensive therapy, it is hoped the patient will be helped to deal with or experience the suppressed feelings as much as possible. The experience of overcoming those obstacles is intended to happen as quickly as possible. The dynamic feature apparently relates to the necessity of working with unconscious feelings and forces and transference of them. [ 202 ] My impression from the evidence is that this therapeutic technique in not unlike peeling back the layers of an onion, to use a crude analogy.

That is, the therapist peels back the various layers of unconscious feelings by using very specific interventions and techniques. These are finely honed, by training and by experience, and in theory, are calculated to overcome a patient ’ s resistance as quickly and completely as possible. By this method, it is believed, patients will sooner, rather than later, experience true feelings about the past and the present and thereby have expedited improvement in mental health and general well-being. [ 203 ] As discussed next, Dr.

Allan Abbass at Dalhousie University has done empirical research regarding the efficacy of ISTDP and has attracted a host of professional followers and advocates - including Dr. Gretta Taylor and psychologist Dr. Gerald Hann, both of whom testified. [ 204 ] Dr.

Abbass and others claim that there is empirical evidence that ISTDP is not only effective from a mental health point of view, but also cost effective in terms of delivery of health services. [ 205 ] The evidence also suggests that ISTDP is distinct from, and perhaps markedly different from, another professionally popular therapy knows as Cognitive Behavioural Therapy (CBT). Reportedly, CBT has also been shown to be effective in numerous clinical trials particularly in dealing with depression and anxiety disorders.

In the present case, there was not a lot of evidence devoted to CBT but my general impression is that both CBT and ISTDP have their adherents and proponents who hold strong opinions regarding clinical efficacy. I mention this because the evidence suggests that CBT is perhaps the more traditional and conventional approach, and is still employed by many psychiatrists and therapists. By contrast ISTDP appears to be more on the cutting edge of treatment, even though its origins go back to the 1960's or 1970's. Dr. Allan Abbass [ 206 ] Dr.

Allan Abbas is a professor and Director of Education at the Dalhousie University Department of Psychiatry. His December 1, 2011 report to M. B. ’ s lawyer was admitted by consent. Dr. Abbass did not testify. [ 207 ] I will not dwell on those portions of the report which deal with M. B. ’ s extensive disclosures to Dr. Abbass about her history and circumstances. They speak for themselves. But, the salient portions of the report include the following:

[ 208 ] Dr. Abbass found no signs of cognitive perceptual disruption and no sign of psychotic process or delusion. There were no signs of cognitive impairment. He said that B. has “ historically had features of borderline personality disorder ” and postulated she may have “ met many criteria for personality disorder ” . And he wrote that “ some entertainment of the diagnosis of post traumatic stress disorder related to the assault at age 16 is warranted ” . [ 209 ] However, Dr.

Abbass finally opined that “ using the broad diagnostic criteria and looking at the entire history a diagnosis of borderline personality disorder is warranted ” . ( My emphasis .) [ 210 ] As far as treatment of the personality disorder is concerned, Dr. Abbass strongly endorsed “ the Intensive Short Term Dynamic Psychotherapy model ” (ISTDP). In his words, We found that patients with borderline disorder could benefit with an average of about thirty-six treatment sessions and have significant improvements in a number of domains.

Although all patients in this group do not benefit significantly from this treatment it is certainly warranted to try this approach since it is available and relatively brief and cost effective. We have also accumulated a large body of data on the cost effectiveness of this approach for people with personality disorders and have found a massive cost reduction through reduced hospitalization and medical visits after a relatively short course of this treatment. [ 211 ] In the result, Dr. Abbass recommended from 40 to a maximum of 60, one hour treatment sessions using the ISTDP model.

He went on to provide an estimate regarding cost. Dr. Gretta Taylor [ 212 ] Gretta Taylor is a licenced medical practitioner. She is currently a general practising hospitalist with the Department of Psychiatry, Capital Health in Halifax. Since 2010 she has also maintained a psychotherapy practice out of Lunenburg. As appears from her curriculum vitae , she is currently training in ISTDP and seeing patients under the supervision of Dr. Allan Abbass. [ 213 ] Taylor ’ s evidence was that she has employed the ISTDP method in helping between 30 and 40 patients since 2010.

As mentioned, her treatment is under the close supervision of Dr. Abbass. She will not get another license, degree or diploma following completion of her supervised work. However, her training and supervised practice will continue for as long as this is deemed appropriate by Dr. Abbass. [ 214 ] I ruled that Taylor may give expert opinion evidence regarding ISTDP for reasons stated on the record. [ 215 ] As discussed elsewhere, it was Dr. Abbass who referred B. to Taylor for treatment. There is no cost to B. because the expense is covered under the MSI program. [ 216 ] Taylor first saw B. in mid December, 2011.

Her written reports will be found in Exhibit 3 at Tabs 21, 27 and 38, respectively. I have disregarded those portions of the reports purporting to give o

[…]