Mi’Kmaw Family v. Children’s Services of Nova Scotia, 2022 NSFC 2

FAMILY COURT OF NOVA SCOTIA Citation: Mi’Kmaw Family and Children’s Services of Nova Scotia v. A.K., 2022 NSFC 2 Date: 20220328 Docket: FBWCFSA No. 116927 Registry: Bridgewater Between: Mi’Kmaw Family and Children’s Services of Nova Scotia Applicant v. A.K. and N.K. Respondents Restriction on Publication: Pursuant to subsection 10(2) of the Family Court Act, the judge is required to as far as possible guard against any publicity in proceedings in the Court. Information that would identify the parties, witnesses or children in this proceeding has been anonymized so that this decision can be published.

Judge: The Honourable Judge Marci Lin Melvin Heard March 28, 2022, in Bridgewater, Nova Scotia Counsel: Katelyn Morton, for the Applicant Noel Fellows, for the Respondent, A.K. Nicholaus Fitch & Nick Darbyshire, for the Respondent, N.K. By the Court: Introduction [ 1 ] The matter before the Court is an application for the permanent care of the four oldest children of the Respondents: MK born January 2015, EK born June 2016, MYK born July 2017, and DK born July 2018.

In AK’s affidavit received December 17, 2021, and sworn on March 16, 2022, she states: “We are all of Mi’kmaw decent.” [ 2 ] DK is three (3) years (and eight (8) months) old and has been in customary care or temporary care for two (2) years (and three (3) months) of his life and in the care of the Respondents for one (1) year (and four (4) months). MYK is four (4) years (and eight (8) months) old and has been in customary care or temporary care for three (3) years (and three (3) months) of her life and in the care of her parents for one (1) year (and three (3) months).

EK is five (5) years (and nine (9) months) old and has been in customary care or temporary care for four (4) years (and two (2) months) of her life and in the care of her parents for one (1) year (and seven (7) months).

MK is seven years old and has been in customary care or temporary care for four (4) years (and three (3) months) of her life and in the care of her parents approximately three (3) years. [ 3 ] There is a concurrent child protection application involving a fifth child, Baby AK, born April, 2021, who was taken into care at birth, made subsequent to these proceedings being commenced. [ 4 ] The Applicant seeks permanent care of these four (4) older children and their plan was filed with the Court on March 24, 2021. [ 5 ] The Respondents had a joint plan of care seeking the return of the four (4) children to their care but have recently separated. [ 6 ] AK does not have housing, is not in a position to put a plan forward for the care of the children, and is adamantly opposed to the children being placed in NK’s care. [ 7 ] In response to the recent separation, counsel for NK argued that NK’s parenting plan has not changed significantly.

Given an impending criminal trial regarding AK and possible incarceration, NK had prepared for parenting the children without AK should that

have been necessary. [ 8 ] NK seeks the children be returned to him on a full-time basis and the application dismissed. [ 9 ] This matter commenced pro forma by consent on June 3, 2021. [ 10 ] Due to the unavailability of one of the Respondent’s previous counsel, and Covid-19 restrictions, the hearing dates were set in January and February 2022. [ 11 ] Although the matter had been set for a lengthy hearing, Settlement Conference Justice, Associate Chief Justice O’Neil confirmed the time would not be required and instead the evidence would be admitted by consent and cross-examination would be waived. [ 12 ] The parties confirmed there would be no oral submissions rather argument by way of a written brief. [ 13 ] Documents were to be filed in hardcopy and/or electronically with the expectation they would be properly before the court. [ 14 ] Orders were granted on consent pursuant to

section 96 [1] [a] of the Children and Family Services Act , (hereinafter referred to as the CFSA), R.N.S. ch 5, to ensure that the evidence, of all four (4) prior proceedings as well as a sixth (6th) subsequent proceeding involving Baby AK, born after this proceeding was commenced, was properly before the court. [ 15 ] This decision relates to the fifth (5th) application by the Applicant with respect to these Respondents and children. [ 16 ] Counsel for the Applicant noted in her brief that she has filed with the court well over 1000 pages of evidence from previous, current, and subsequent proceedings, which have been admitted into evidence in this proceeding. [ 17 ] The Court has considered and reviewed all of the evidence, the CFSA and the First Nations Inuit Metis Children, Youth and Families Act , (hereinafter referred to as the FNIM), and the jurisprudence in relation to this matter. [ 18 ] The Court has considered the best interests of these children based on all of the evidence before it. [ 19 ] Given the almost two decades of Applicant involvement with one or both of the Respondents, the Court will set out the evidence chronologically for ease of reference.

Evidence [ 20 ] Counsel for NK notes in their written submissions: “Although some facts specific to the truth of their content are in dispute, the facts surrounding Mi’kmaw Family and Children’s Services’ … involvement in the Respondent’s life are set out in their Brief from pages 2-36.” [ 21 ] The Court also notes that counsel for NK argued that from 2004 to 2014, the alleged historic conduct attributed to NK is denied by NK to have ever taken place. [ 22 ] They argue : “Even if they had taken place in exactly the way the Applicant sets out, we respectfully submit that the Applicant clearly did not view these incidents of worthy of seeking permanent care in and of themselves.

NK’s children were returned to him on numerous occasions despite the Applicant’s continued position that these events took place.” [ 23 ] The Court will rule on the significance of historic conduct in this decision. It is suffice to note at this point that the concerns from 2004 until 2014 provide at the very least an historic backdrop to these proceedings. [ 24 ] In 2004, the Respondent NK, 22 years old at the time, was charged with sexual assault of a 12-year-old-girl. NK touched the girl’s buttocks, put his head on her shoulder and tried to look down her shirt.

When this was subsequently addressed by a social worker, NK indicated he had been intoxicated, was young and stupid, and would not happen again. Also in 2004, the Department of Community Services substantiated concerns of NK physically assaulting an ex-partner’s child who was two years old at the time. The child sustained injuries consistent with choking. NK was charged but not convicted.

The Applicant and Respondents entered into an Early Intervention Agreement to address the issue of NK’s anger management. [ 25 ] In 2008, NK, his ex-partner, and the Applicant entered into another Early Intervention Agreement to participate in counseling, anger management, and family support. [ 26 ] In 2009, NK and his ex-partner broke up and NK requested to continue services. He admitted to a social worker that prior to having a child they smoked crack together but it was no longer a concern.

The Applicant’s involvement with NK continued until May 2013 as he had a shared custody arrangement regarding his son and ex-partner. The Applicant closed the file at that time as NK’s ex- partner moved out of the province and NK did not have day-to-day care of the child. [ 27 ] In 2012 NK found out that he was the father of another child from a prior relationship. [ 28 ] In 2013, that child was placed in NK’s care for a brief period from November 2013 until January 2014.

By that time, NK and AK were in a relationship. [ 29 ] In January 2014, the child was taken into care and out of NK’s house due to emotional harm as a result of the Respondent AK’s interactions with the child. NK was given the option to have AK leave the home but NK chose for the child to leave. The evidence notes NK said couldn’t do it without AK being with him. On this point, counsel for NK argued: “NK has demonstrated an ability to recognize when he is not able to care for his children on his own.”

[ 30 ] In 2015, the Respondents had their first child, MK. The Applicant received a referral from the RCMP of a domestic disturbance between the Respondents. During the investigation, the Respondents denied physical violence, although both acknowledged it had happened in the past. Concerns were noted regarding the Respondents’ relationship and AK‘s mental health. The Applicant and Respondents entered into an Early Intervention Agreement to provide counseling, family support, women’s outreach, and family group counselling. [ 31 ] In January 2016, the Respondents were expecting their second child.

They did not want to renew the Early Intervention Agreement as they believed they had addressed all concerns through counselling and that their relationship was more stable. Their second child EK was born in June 2016. In September 2016, the Applicant received a referral that the children were dirty and smelled of urine. Furthermore, the house was dirty and smelled of animal urine and feces as they had several pets.

When an Applicant worker arrived to investigate, AK was across the street at a neighbor’s home with the oldest child MK, while the three (3)-month-old infant, EK, had been left in the Respondent’s home unattended. The squalor in the home was substantiated. [ 32 ] It should be noted that the Respondents had been together since AK was sixteen (16) and NK was twenty-eight (28). By the time AK was twenty (20) years old, she had two (2) babies to care for, was responsible for the housework, and she had a job at night as a cleaner.

AK’s Parenting Capacity Assessment states: “During the day she would take care of the two children as [NK] was not helping out. According to [AK] he thought parenting the children was [AK]’s responsibility.” [ 33 ] While investigating the September 2016 referral, it was noted that there was a pile of items three (3) to four (4) feet high in which the Applicant discovered five (5) rifles. Due to the unfit living conditions, AK was asked to make appropriate family arrangements and a safety plan for the children. AK suggested the children go with her grandmother.

AK subsequently raised concerns that the grandmother had tried to drown her in a sink when she was younger. During the time that the two children were with the grandmother, MK received an injury to her head from falling onto a concrete floor. [ 34 ] MK and EK were taken into care on October 5, 2016, and the Applicant commenced their first child protection proceedings in relation to these Respondents. AK advised that NK had hit her once or twice and she had hit him back, noting it was done before they had children.

Collateral contacts with family members confirmed concerns that the Respondents had been involved in domestic altercations since having children and family members had to intervene. When the children were removed from AK’s grandmother, AK went to the Millbrook Healing Centre with the children and the children were returned to her care under a Supervision Order on the condition that the Respondents not reside together. AK was not to facilitate NK’s parenting time with the children. [ 35 ] Shortly thereafter on a referral, the Applicant made an unannounced visit to NK’s home where entry was initially denied.

AK was in the home with the two children and attempting to hide them from the Applicant. The children were removed from her care and placed in the customary care of NK’s sister. The Respondents participated in individual counseling, couples counseling, family support work, men’s and women’s outreach, and family group conferencing. [ 36 ] In April 2017, the children were returned to the Respondents’ care under a Supervision Order. In July 2017, AK gave birth to their third child, MYK. AK left the hospital on the same day of the birth of the child against medical advice.

Pursuant to the CFSA , the Applicant made a second application to the Court for the third child due to AK not making child-centric decisions, not being willing to work with the Applicant, and reported ongoing relationship concerns between the couple.

Once the concerns were addressed to the Applicant’s satisfaction, the Respondents were cooperating, and there had been no recent referrals, the Applicant made the decision to request termination of both court proceedings and file yet another Early Intervention Agreement to continue the Respondents’ participation in therapy and family support work. [ 37 ] Three days after the first and second child protection proceedings terminated, RCMP contacted the Applicant and advised that on September 28, 2017, they had been called to the Respondents’ home for a domestic violence incident that involved NK being charged with assault.

All three children were present during this physical altercation. [ 38 ] The Applicant initiated the third child protection proceeding with respect to the Respondents on October 6, 2017. The Respondents contested the matter at the 30-day stage and it was heard by this Court on October 30, 2017. In the published decision ( Mi’kmaw Family and Children’s Services v. NK , 2017 NSFC 27 ) the Court stated: Three days after the terminations, a referral was received by the emergency duty worker from an RCMP officer in the Chester detachment.

The RCMP attended the home of the Respondent Parents on that date for a domestic violence incident after being contacted by the Respondent Mother. According to the Respondent Father, the Respondent Mother had hit him while he was holding one of the children. All three children were present for the altercation. The Respondent Mother confirmed that an altercation had taken place but her evidence was she did not hit the Respondent Father while he was holding one of the children but the children were present.

On September 29, 2017, the Agency worker spoke with a family member who advised the worker that she had heard about the fight the Respondents had had the night before. She further advised that two weeks previous she had been told that the Respondent Mother had pushed or shoved the Respondent Father while he was holding the child and knocked the child out of his arms. This is disturbing as this happened just prior to the matter being terminated by the Court. In the latest altercation, the Respondent Father was alleging that the Respondent Mother hit him twice in the face and then she bit him.

In the Respondent Mother‘s affidavit she says that they weren’t having a fight. She goes on to say that the Respondent Father was holding her in a headlock, and she bit him so he would let go of her, she was afraid and needed to be out of the headlock to attend to her children and leave the home. It is disturbing to the Court that the Respondent Mother would say that they were not having a fight. What other word would describe what happened? This lack of ability to accept responsibility, or call an egg an egg, is troubling.

There is also evidence in the Respondent Mother’s affidavit that the parties had been fighting over jealousy issues. (paragraphs 8 to 18.)

[ 39 ] At that time, the two eldest children were placed in a customary care and custody arrangement with NK’s sister. The baby, MYK, was placed in the temporary care of the Applicant. AK advised that NK had accused her of cheating, they started arguing, he put her in a headlock, she bit him and he bit her back. There were serious concerns noted with respect to the parenting of the children. [ 40 ] By December 2017, concerns had continued to escalate.

During the access visits, the youngest child almost fell off the table while in her car seat, the Respondents argued, one of the children picked up animal feces, and the youngest child was being fed inadequately. More services were put in place: anger management therapy for NK, therapy for AK to address healthy relationships, stress management, and self-care and attachment. Co-parenting therapy and family support to address healthy relationships and parenting deficits were also added. [ 41 ] In 2018, the Applicant noted that the Respondents were not initially engaged in these services.

By May 2018, the concerns from the access reports escalated even further concerning excessive discipline and punitive approaches taken in regard to the child EK, who was still under two years of age. EK was subjected to 45 minute timeouts and being restrained in her highchair. She was being left alone on a sofa while the Respondents were across the room. She was being corrected constantly and not receiving incentive stickers while the oldest child was getting plenty of incentive stickers and prizes.

There were concerns of favoritism which was denied by the Respondents. [ 42 ] Although the cleanliness of the home seemed to have improved, the SPCA became involved during this proceeding due to treatment of six (6) dogs that were in the Respondents’ care. [ 43 ] In July 2018, a fourth child, DK, was born to the Respondents. The Applicant commenced a fourth Application under the CFSA with respect to DK and the Respondents. [ 44 ] At this point, AK refused to have another family support worker in their home to provide intensive family support work.

In August 2018, MK and EK’s customary care placement broke down and the children were taken into the temporary care and custody of the Applicant. The Applicant subsequently decided that the child protection concerns relating to the two (2) youngest children were being addressed and the Applicant decided to return these two (2) children to the Respondents care under Supervision Order and the two (2) oldest children would begin overnight access with their Respondents.

The Respondents agreed to start intensive family support work, doing individual therapy, couple therapy, and family support work. [ 45 ] The Applicant noted that the behaviors of the two oldest children regressed after having access with the Respondents. It was noted by the family support worker that AK continued to treat the two oldest children differently. In October 2018, the Applicant noted the Respondents screaming, swearing, and name calling at each other when the children were present. They further noticed the excessive correction and discipline AK used towards EK.

It was noted that NK did not speak to EK in this manner. The family support worker noted that the Respondents would not take responsibility for the situation and put blame on the foster parents, family support workers, the Applicant, and sometimes the children for their behaviors and regressions. [ 46 ] In November 2018, numerous difficulties were noted with respect to the way the children were treated during the access visits. Early intervention services noted potential delays with the two (2) oldest children.

NK’s therapist noted that NK was doing well and becoming more of a peacemaker. [ 47 ] In 2019, the Respondents began participating more in the case-plan and the Applicant moved towards transitioning the oldest children back to the Respondents care under a Supervision Order, which was granted January 2019. However, in January 2019, AK had moved EK to the spare room, turned the crib upside down over her, and had duct taped her pajamas to her.

The child, MK, was allowed to sleep in her parent’s bed, but according to the evidence, EK spent her nights alone trapped under a crib, waking up every hour screaming. [ 48 ] The Applicant continued to note concerns from January 2019, however, by June 2019, the Applicant believed the Respondents had made enough progress. As the statutory timeline for the third proceeding expired in August of 2019, the Applicant requested a termination of both proceedings and that yet another Early Invention Agreement be put in place.

The third and fourth proceedings terminated on July 2, 2019. [ 49 ] Three (3) months after the Respondents’ third and fourth child protection proceedings terminated, RCMP reported concerns pertaining to the welfare of the children, as well as animals residing in the Respondents’ home, which was characterized as unsafe and unsanitary. The RCMP and the SPCA attended the home and seized eight (8) dogs. Some of the dogs were doubled up in crates in which they could not sit down or turn in, and there were concerns about whether adequate food and water was left for the animals.

When asked about the eight (8) dogs, AK stated they were her children’s therapy dogs. The RCMP officer who attended the home noted the house smelled strongly of animal urine and feces. Further, RCMP had been recently called because a four (4)-year-old was on the road by herself walking only in a diaper and AK had no idea her child was missing. [ 50 ] AK’s sister advised the Applicant in January 2020 that she had moved AK into this home in July 2019 following AK being assaulted by NK, which resulted in AK suffering a concussion.

AK’s sister advised that during another visit in September 2019, she arrived and AK, AK’s boyfriend, and MK were upstairs in the master bedroom. DK was alone in a playpen facing the TV. The floors were covered in dog urine and feces. There were mouldy dishes and a sink full of stagnant, dirty water. Her sister advised she had to clean the stairway to get upstairs. She found EK and MYK in their bedroom, which was blacked out with curtains with a television turned on.

There was no door and there was a baby gate blocking the doorway. [ 51 ] According to AK’s sister, EK’s crib was upright, but the mattress was dropped so the child was unable to climb out, while MYK’s crib was upside down over her like a cage. EK and MYK’s diapers had “exploded”, they were both soaked in urine, and EK was covered in feces as well. The skin on their bums was raw and peeling. [ 52 ] Counsel for NK noted these incidents were not in their client’s control as the children were with AK at this time.

[ 53 ] On October 28, 2019, a second referral was received that AK had relocated and was residing with NK and their children. The Applicant was concerned given the incidents of family violence and that when the prior child protection proceedings terminated in July 2019, the Respondents’ plan was that a family member would support/supervise their joint access to reduce the risk to the children.

That family member later confirmed the Respondents had not cooperated with that plan. [ 54 ] On November 1, 2019, RCMP advised there were pending charges against NK for assault and uttering threats towards AK and her sister from a July 2019 incident. Both Respondents blamed AK’s sister for the incident of family violence and claimed she had made it up.

Also on November 1, 2019, AK told an Applicant social worker she could not tell NK about her boyfriend without fear of NK reacting. [ 55 ] On November 6, 2019, a referral was received that AK had been in a head-on collision that resulted in the death of another motorist. The RCMP advised that officers on the scene observed drug paraphernalia in AK’s car and charged AK with several criminal code offences, including criminal negligence causing death.

In the Parenting Capacity Assessment Report for AK by Monique Simonse, in the Background Information section, it was noted that AK told the RCMP that she was five (5) months pregnant with twins at the time. The assessment also noted that “[AK] explained that she smokes weed on a daily basis and that it was likely still in her system as she’d not smoked that day because she was pregnant with twins.” [ 56 ] The Court has been unable to find any other reference in the evidence to this pregnancy or the twins, except in NK’s assessment.

Other evidence noted that AK was uncooperative with the Applicant’s investigation into these referrals, was verbally aggressive with the social workers, and failed to show any insight into the child protection concerns. [ 57 ] The Applicant initiated the fifth court application (this current proceeding) in December 2019. The children were placed in the care and custody of third parties and a family member. [ 58 ] In January 2020, an Applicant worker observed that EK’s and MYK’s struggles seemed to lie with emotional development and attachment.

The Applicant arranged therapy for EK and MYK for trauma, aggression, and sexualized behaviours in EK. [ 59 ] During a home visit by the Applicant in January 2020, the Applicant noted NK discussed a domestic incident that occurred in July 2019 where he ‘beat the shit out of’ AK and asked AK if she wanted to go through that again.

NK’s counsel argued that NK denied ever having claimed to ‘beat the shit out of her.’ His counsel continued: “The incidents being discussed involved a conflict from many years ago, as opposed to conduct relating to the past summer.” [ 60 ] In February 2020, NK indicated there were times when he could feel the anger/frustration he experienced in the past and wanted to find more appropriate means of coping, noting he did not want to be in the same space he was when he physically assaulted AK the previous summer.

EK and MYK’s customary placement with a family member broke down and they were taken into the temporary care and custody of the Applicant. [ 61 ] In March 2020, the Court made the protection finding, finding the children were in need of protective services pursuant to

section 40 and subsections 22(2)(b), (g), and (

k) of the CFSA . In April 2020, AK confirmed Therapist Trevor Moores was in contact with both Respondents to begin individual counselling services. MK’s caregiver advised she was obsessed with private parts. MK was seeing First Nations Clinical Therapist Bryn Davies on this issue. [ 62 ] Affidavit evidence of Sylvia Martin, a woman’s outreach worker with the Mi’kmaw Family Healing Centre, filed by counsel for AK, noted she first met with AK in February 2020 and had been working with her since that time. Ms.

Martin’s evidence was that AK had changed a lot I the time she worked with her, the last time being August 4, 2021. Ms. Martin noted AK had “…modified her attitude a lot and is now always forthcoming and eager to do the programming and learn.” [ 63 ] In May 2020, the Respondents continued to refuse urine collections for random drug and alcohol testing, citing concerns with people entering their home during the Covid-19 pandemic. [ 64 ] On June 4, 2020, the Court made the initial disposition finding.

MK’s caregiver advised they were working on strategies (to deal with MK’s challenging behaviours) given to them by MK’s therapist and they appeared to be working. AK believed MK’s behaviours were due to the numerous upheavals in her life and exacerbated due to changes in her caregiver’s home. AK confirmed she had been having regular contact with her therapist and her Women’s Outreach Worker. [ 65 ] MK’s caregiver noted MK randomly said that her parents were fighting one time and her dad pushed on her mom’s throat and when he stopped, her mom pushed her dad against a wall.

When the social worker met with MK and EK, EK said she saw her dad push her mom against the wall and choke her and demonstrated by wrapping one of her hands around her throat. MK said that was not what happened, and her mom pushed her dad against the wall and choked him. MK said it only happened once and it was “funny” because her dad was trying to talk and couldn’t. MK couldn’t say when it happened. NK denied having choked AK in front of the children. [ 66 ] In July 2020, a Family Support Worker noted sessions were focused on managing emotions.

The Respondents were noted to be cooperative despite not seeing their children for in-person access (only virtual) due to Covid-19. The Family Support worker noted AK was engaged and appeared knowledgeable on childhood injuries and childproofing. The Respondents continued with their therapist and resumed random drug testing in July. By August the therapist noted the Respondents seemed to be making some progress. [ 67 ] By October 2020, small improvements were noted by Applicant workers. The home was tidy and both Respondents were fully engaged in their Substance Use Assessments.

Their therapist noted conflict between the Respondents during couples counselling. [ 68 ] MK and EK scored mild and moderate severe respectively on a test for PTSD. At one point while discussing family violence, MK put her hands on her own throat and said she saw her mom choke her dad. The therapist, Ms. Davies, offered to meet with the Respondents in their home to teach them the necessary skills to ensure consistency in relation to addressing the girls’ behaviours. [ 69 ] Ms. Davies reported having made several attempts to contact the Respondents. The Respondents wanted confirmation of Ms.

Davies identity and it was confirmed. However, despite significant effort by Ms. Davies to assist the Respondents, the Respondents refused to cooperate, finally saying in February 2021, they had not had the children in their care enough to have any impact on the children’s behaviours. [ 70 ] The Applicant raised concerns with the Respondents based on their fully-supervised access visits with the children.

These concerns included AK refusing to close the front door despite the children saying they were cold (AK said she was hot), the Respondents not having any clothes for DK to change into after his pants got wet, the children getting flea bites and children getting bitten on multiple occasions by the rabbits. [ 71 ] In AK’s affidavit aforementioned, she states: “We have 5 dogs, 5 cats and 5 rabbits and the animals are well behaved … The animals are not aggressive ….” [ 72 ] The Applicant advised the Respondents it was looking to implement individual access for each parent to assess their ability to parent their children separately, which would be important should AK be incarcerated.

The Respondents refused, saying they would “never not parent together”. The Respondents reported there is a possibility of AK being incarcerated but said the Applicant’s involvement would be over by that time, so the Applicant did not need to prepare for that possibility. The Applicant noted that while there had been some improvement with the Respondents’ engagement with the Applicant compared to previous proceedings, there remained significant challenges and barriers to the Respondents’ progress.

The Applicant believed that while the Respondents were engaged in services they continued to demonstrate limited insight into child-centric decision making. The Respondents were given a copy of the Applicant case plan and asked to review it before the next home visit. [ 73 ] During the next home visit in December 2020, when asked if they had reviewed their case plan, they said no, and AK replied: “Do you know how busy we are?” The Applicant raised concerns with the Respondents about them showing favouritism of their other children over EK. NK acknowledged the Applicant had concerns in the past about this.

When asked if EK’s behaviours affected their perception of her, the Respondents said they can separate a child from the behaviours. The Respondents said EK knew how to be hurtful and would intentionally try to hurt them and provided the example of EK telling them they were no longer her parents.

The social worker explained this behaviour was likely EK’s own pain response. [ 74 ] In February 2021, the Applicant received the Parental Capacity Assessments from Registered Psychologist Monique Simonse for both Respondents. [ 75 ] The evidence is clear that AK’s life from an early age was difficult and challenging. [ 76 ] As noted above, the Assessment made reference that AK became involved with NK when she was sixteen (16) years old and he was twenty-eight (28) years old.

Even in those early days, NK was aggressive and physically assaulted AK, described in the report as: “beat her up.” AK was only nineteen (19) when their first child was born, and twenty (20) when she had the second, and the weight of childcare and house work fell squarely on AK’s shoulders. [ 77 ] According to Ms. Simonse, the assessment results indicated AK had good parenting abilities, but the problems in her relationship with NK, her personality profile, childhood experiences, and history had become a barrier in providing adequate care for her children.

She noted information from collateral sources, indicating that AK required a supportive network, and practical and emotional support to parent all four children by herself. [ 78 ] In a Parental Capacity Assessment prepared by Monique Simonse for NK, dated January 23, 2021, she states: “ [NK] shared that his two uncles (his father’s brothers) and his grandfather were alcoholics.

He grew up in an environment where heavy drinking and fighting was normal. [NK] started drinking at a very young age, because his family members would offer him beer.” [ 79 ] The Parental Assessment Report seems to contain a thorough accounting of NK’s life. When the Applicant took their first two children into care the report noted: “[NK] explained that he did not help [AK] at all with running the household and taking care of the children. [AK] did everything for the first two years. As a result, the house was a mess and the dogs were pooping in the basement. [NK] and [AK] were fighting about household chores.

The children were gone for about eighteen months, according to [ NK ]. He and [AK] got involved in services and started counselling. After they were returned, [AK] was pregnant with [MYK]. When [MYK] was born the children were taken into care again.” [ 80 ] Annie Knockwood, a Family Support Worker with Mi’kmaw Family and Children’s Services had worked with the Respondents for four years when interviewed for the Parental Capacity Assessment in November 2020. The report stated : “Annie feels that [NK] and [AK] would parent better if their relationship was more stable.

She noticed that [NK] is helping out more as he has been cleaning the house, mopping the floors and cooking meals.” [ 81 ] Ms. Simonse conducted a number of psychological tests on NK. On one particular test, she noted: “ [NK]’s overall AX Index score fell in the moderate range, indicating that when he is angry or furious, he likely tries to keep calm, be relaxed and cool, be patient, tolerant and understanding of others. Like most people, he may not always be successful in doing this, but he might be aware of his anger.” [ 82 ] Ms.

Simonse continued: “From the information gathered, it seems that [NK] is invested in and committed to providing care for his children, but he is experiencing barriers as a result of his emotion-regulation problems, early childhood experiences, communications problems, attachment issues and possibly as a result of his cognitive challenges. Results of this assessment suggest that [NK] was not strongly involved in the parenting of the children in the past … He showed a strong motivation to be more involved and to learn more about

parenting.” [ 83 ] She concluded: “During the assessment appointments it as noticed that [NK] seems to lack insight in his own functioning and how this might impact his parenting and his relationship with [AK]. He mainly talked about how the fact that the children were taken into care have affected their behavior, but contributed this more to other caretakers being involved and them not parenting the same as [NK] and [AK] had done.

He did not contribute the children’s change in behavior to the fact that the children being removed out of his and [AK]’s care and then witnessing domestic violence and the impact on their sense of security and their attachment.

In conclusion, assessment results indicated that he had some parenting abilities, but the problems in his relationship with AK, his personality profile, childhood experiences, and history had become barriers in providing adequate care for his children.” [ 84 ] She also noted information from collateral sources and NK’s score on the cognitive ability and achievement tests indicate that he needed support to parent all four (4) children by himself. [ 85 ] The Applicant received subsequent correspondence from Ms.

Simonse regarding the Respondents’ Parental Capacity Assessments, noting the children may have developed attachment problems and trauma as a result of their placements outside of the family and as a result of witnessing family violence and noted the Respondents would benefit from specific parenting support services. Ms.

Simonse noted that if similar services have been offered and completed a number of times and no progress is noticed, it is likely that the services offered are not a good match or that the barriers for the Respondents to benefit from the program are too high. [ 86 ] In late February 2021, the social worker, Respondents, and Ms. Simonse met and specific programs were recommended to look at the Respondents’ own experiences of trauma/attachment and how they manifest those into their own parenting. [ 87 ] AK said the children’s apparent attachment issues were from them frequently being removed from the home. Ms.

Simonse noted the children’s trauma was reinforced with each taking into care and that each time the children’s maladaptive attachments were reinforced, those behaviours became deeper entrenched, more difficult for each child to process, and more difficult for supportive services to address.

AK said they worked hard to address problematic behavioural patterns of the past and their current Applicant involvement had no merit and was from a malicious referral from her sister. [ 88 ] The Applicant spoke of concerns regarding the stability of the Respondents’ relationship, noting the Applicant just completed involvement in July 2019 and then their relationship broke down. It was noted that AK said it was the removal of their children in the fall of 2019 that destabilized their relationship. Ms.

Simonse discussed their therapy, noting sessions with NK went well, but when the therapist would challenge AK to dig deeper into her trauma and its impact on their current situation, AK’s entrenched responses prevented them from moving forward in those sessions. Ms. Simonse noted that when that was explained to AK, she became defensive. AK said NK was the one who needed to work through his past, not her. [ 89 ] The Applicant noted concerns with the Respondents redirecting the identified child protection concerns by placing blame on others.

When asked about this, the Respondents said they understood how it could appear that way but insisted they had done nothing wrong that required the Applicant’s current involvement, noting it is due to a malicious referral. Later in February, MK and EK’s therapist, Ms.

Davies, confirmed the children required consistent parenting and supports and she had seen great improvement in both girls since being with their current caregiver. [ 90 ] The Applicant advised that it was during this time they made a decision to begin permanency planning and would encourage the Respondents to identify long-term caregivers for the children. [ 91 ] The Applicant argued a lengthy involvement with the Respondents, that the Respondents had been offered supportive services multiple times, and even with all of that, the Respondents’ had been unable to demonstrate or maintain the necessary changes that would provide a stable, nurturing, and consistent home environment that supported the children’s healthy mental, physical, social, and emotional development. [ 92 ] NK said he did not understand the decision, noting the referrals made by AK’s sister were malicious. [ 93 ] On March 11, 2021, the Applicant formally decided to seek permanent care and custody of the four older children.

Evidence of child therapist, Bryn Davies, highlighted her concerns about MK’s vivid recollection of events and fear pertaining to AK’s fatal motor vehicle collision, despite MK not being present at the time. [ 94 ] The Applicant’s evidence also noted concerns with the Respondents’ inappropriate information-sharing and exposing young children to adult issues.

Further, as has been noted throughout the evidence, the Applicant had concerns from access where the Respondents’ differential treatment between the children seemed to be increasing. [ 95 ] The Access Facilitator noted AK seemed to be blaming EK for everything during a particular visit, and when EK felt she was being blamed, she would shut down, not say anything, go under a table, and hide her face. AK would then get mad at EK for being upset for “not getting her way”.

Family Support Worker Laura Winters evidence was that she had completed a two and a-half (2 and ½) hour session with the Respondents and they did not cover any programming as the Respondents wanted to use the time to fill her in on their perspective of the Applicant’s involvement.

The Applicant arranged for EK to begin participating in Rowan’s Room Development Centre to work on attachment, routine development, and emotional regulation skills using a trauma-informed approach. [ 96 ] AK told the social worker that she and NK accepted their roles in their previous Agency involvements and their history of family violence. The Applicant advised AK that they did not believe the Respondents had adequately addressed the child protection concerns of this involvement, and raised the concern of unfit living conditions.

AK denied this concern. [ 97 ] The Respondents were noted once again to have said the children’s problematic behaviours and attachment were a result of having been removed from the Respondents’ care. The Applicant’s evidence is that they believe the Respondents continue to blame the

Applicant for the removal of their children, rather than accepting responsibility for having their children removed. [ 98 ] On April 2, 2021, AK gave birth to the Respondents’ fifth child, Baby AK, and the Applicant initiated the sixth child protection proceeding. As previously mentioned, pursuant to a motion granted under subsection 96(1)(

a) of the CFSA , the evidence under Baby AK’s proceeding has been admitted as evidence under this proceeding. Baby AK was taken into the temporary care and custody of the Applicant upon birth. There were significant concerns reported by the nurses while Baby AK was in the hospital with the Respondents during the first few days postpartum, and indeed the evidence shows these concerns continued.

Baby AK remains in the care of the Applicant. [ 99 ] However, this matter involves Baby AK’s older siblings and the Court will focus for the most part on that. [ 100 ] In April 2021, AK and NK’s individual therapist, Trevor Moores, noted the Respondents requested two sessions per week. Mr. Moores stated he wished they had been willing to put in this level of work a long time ago, noting the Respondents’ claim is in line with his observations of the Respondents being presented information one way, and then spinning it another way to their advantage. [ 101 ] Mr.

Moores noted the Respondents appeared to hear only what is perceived by them to be advantageous, and his role continued to be supportive rather than therapeutic as the Respondents had not used their time with him to address the identified issues, but instead, to complain about the Applicant and the Applicant’s involvement. [ 102 ] Further, Mr. Moores noted that during one of their sessions, AK told him that her lawyer (former Counsel) was present. Mr.

Moores noted this took place without his consent or knowledge and as such, he no longer felt telephone sessions were appropriate and would no longer offer his therapeutic sessions to the Respondents via telephone. Mr. Moores noted Cognitive Processing Therapy (CPT) needed to be done individually. [ 103 ] The Respondents refused CPT noting they were too busy to take on any other services, and accused the Applicant of trying to overwhelm them. By May 2021, the Respondents were willing to try CPT. AK advised NK was not finding therapy with Mr.

Moores useful and the quest for a new therapist for NK began. [ 104 ] Also at that time, Psychiatrist, Iftikhar Hussain noted EK appeared to have traumatic childhood experiences, neglect, and attachment difficulties, and this was exhibited by her behaviour and emotions.

He recommended a stable placement and consistent environment to address EK potentially suffering from an attachment disorder. [ 105 ] During a Risk Management Conference held on May 18, 2021, the Applicant’s evidence is that they shared concerns that the Respondents did not appear to recognize their children’s response to their situation and that the children were expressing their own emotional/psychological needs.

The takeaway was the Respondents appeared to ignore these needs, blaming the children’s caregivers for allowing the children to “get away with acting like this” or stating “they need to be back home where they belong so they can be taught this doesn’t get them want they want” , all within earshot of the children. During an access visit, DK found Febreeze, sprayed it, and it just missed his face/eyes and the Access Facilitator had to intervene. [ 106 ] NK’s affidavit evidence was that he acknowledged this happened and it was a lapse of judgement in his

part in failing to put the Febreeze away prior to the access visit. [ 107 ] During the same visit, EK found nail clippers, tried to use them on DK, and the Access Facilitator had to intercede again. The Applicant noted circumstances justifying a request for permanent care and custody had not changed and are unlikely to change before the statutory timeline expiring on June 4, 2021. [ 108 ] The Permanent Care and Custody Trial commenced pro forma on June 3, 2021 before the timeline expired.

In July 2021, trial dates were scheduled for January 2022 for reasons previously noted. [ 109 ] Although the Respondents had told the Applicant a ‘hard no’ to the possibility of NK’s sister being a permanent placement for EK in mid-May 2021 as AK said she believed EK’s behaviours began when EK was placed with NK’s sister in the past, in June, AK changed her mind. EK had already begun transitioning to NK’s sister’s care as a foster kinship placement.

NK’s sister advised she was leaning towards the plan of permanent care and custody for EK while continuing to be EK’s foster kinship placement. [ 110 ] On June 22, 2021, NK’s sister advised she was unable to continue being EK’s placement due to EK’s behaviours as she had to protect her own child, who began hiding in her room and when she came out, EK verbally attacked her. [ 111 ] In June 2021, the Respondents indicated they were supporting NK’s parents taking the other three children.

On June 3, 2021, the Applicant decided to explore and assess this proposed plan and implement access between the three (3) children and their paternal grandparents. The three (3) children were to be fully transitioned on July 1, 2021. On June 27, 2021, the children’s transition to the paternal grandparents’ long-term care broke down due to the grandparents’ inability to care for all three (3) children. [ 112 ] In June 2021, Therapist Joan Reeves advised she arranged with AK for in-person sessions every week starting June 16, 2021. On July 24, 2021, Ms.

Reeves’ report noted that although AK was referred to her counselling services in May, she was unable to reach AK to

schedule an appointment until mid-June due to difficulties with AK’s cell phone service. Ms. Reeves noted AK had attended six (6) sessions since mid-June and had not missed any appointments. Ms. Reeves noted AK said the Applicant’s current child protection proceeding was “based on a lie” . Ms. Reeves noted AK was not in agreement with addressing her trauma during these six (6) appointments and therefore Cognitive Processing Therapy was not attempted. [ 113 ] Ms.

Reeves noted AK frequently shared her belief that the circumstances she faced were the fault of others and became defensive if another perspective was offered. In September 2021, Ms. Reeves questioned whether AK was able to start Cognitive Processing Therapy, as she thought AK’s regulation skills needed to improve before they risked going into further detailed historical trauma. Ms. Reeves noted that she and AK spoke about AK’s need to cope with what was happening in her life currently with her criminal case and child protection involvement.

[ 114 ] Throughout the summer of 2021, the Applicant continued to note multiple concerns with the Respondents parenting abilities during their access to the children. [ 115 ] In September, MYK’s Therapist, Bryn Davies, indicated MYK talked a lot about penises, was good at drawing penises, drew a monster with a penis, and dropped her pants and showed the therapist her new underwear during session. Ms. Davies wanted the Applicant to be aware of MYK’s sexualized behaviours.

Further incidents of sexualized behaviours between two of the children were noted during an access visit later in September. [ 116 ] The Access Facilitator noted the Respondents seemed to be fighting a lot and there was tension between them during access. [ 117 ] The Applicant noted that NK informed Family Support Worker, Laura Winters, he was not sure how much more he could take. AK denied there was tension between them during access, advising the Applicant was just nit-picking.

The Access Facilitator noted one (1) of the children picked up rabbit feces from the floor and was prepared to eat it and AK took the feces away and threw it back onto the floor. AK’s affidavit evidence was that she then swept the floor. [ 118 ] The Applicant participated in a scheduled phone consult with EK’s pediatrician, Dr. Crouse. Dr. Crouse noted EK required routine, structure, and security to stabilize. [ 119 ] On October 4, 2021, Developmental Paediatrician Dr.

Jillian MacCuspie advised the Applicant that EK needed therapy for her history of complex trauma, attachment difficulties, and challenges with emotional regulation. [ 120 ] On October 4, 2021, the Court made the protection finding that Baby AK was in need of protection services pursuant to sections 40 and 22(2)(

b) and (

g) of the CFSA . [ 121 ] AK’s Therapist provided a subsequent progress report, noting AK engaged and participated in sessions and showed progress in establishing a therapeutic rapport. She noted that starting Cognitive Processing Therapy at this time was inappropriate given AK’s current stressors and her report that she felt significant distress in doing so. [ 122 ] A report of Clinical Social Worker Ian “Tay” Landry with Sweetgrass and Sage Counselling and Therapeutic Services dated October 31, 2021, was filed with the Court, respecting his involvement with NK. Mr.

Landry spoke well of NK’s progress: NK “… has participated fully in the counselling process. He was open and candid about the reasons for he and his partner’s involvelment with Mi’kmaw Family, including a history of poly-substance abuse, intimate partner violence and inappropriate parenting …. [He] expressed pride in the significant changes he has achieved in his ability to control his mood, as well as his behavior.

He noted that when he now feels stressed, frustrated or angry he will spend time in the woods, chop wood, draw or spend time by himself by a fire…. [ NK ] stated he has also learned to express his feelings, concerns and frustrations, including discussing them with his partner, instead of bottling them up and eventually feeling overwhelmed and becoming emotionally dysregulated.” He “… describes himself as being in a committed relationship with his partner, as well as being a father to his children.

He expressed significant insight into, and regret for, how he and his partner’s problematic behavior traumatized their children while they were previously in their care. He expressed significant concern that their children are now being further traumatized remaining in care…. [ NK ] described a significant improvement in his relationship with his partner. He expressed pride in the work they have done to achieve this. He noted they now communicate better and have fewer periods of heightened agitation and have had no incidents of intimate partner violence.” [ 123 ] Mr.

Landry noted NK believed the Applicant was punishing the Respondents for their past behaviours instead of acknowledging the positive changes they had made. [ 124 ] NK advised the social worker he accepted responsibility for AK leaving their home with their four eldest children in 2019, noting he had not been supportive in co-parenting. The Respondents stated they had completed everything that has been asked of them multiple times. The Applicant agreed, explaining the Respondents had taken every program the Applicant had to offer numerous times.

However, the Respondents had yet to adequately accept responsibility for the Applicant’s current involvement, the children being removed from their care, and the children’s resulting trauma. The Applicant’s evidence is that NK became escalated. The Applicant worker attempted to explain the ongoing issues, lack of insight demonstrated, and the ongoing relationship/co-parenting issues apparent in the access reports.

NK blamed the Applicant for creating the tensions in their relationship. [ 125 ] At the same time, the Applicant received communication from therapist, Bryn Davies respecting her work with all four children. Ms. Davies noted that DK’s behaviours were fairly normal and although there were ADHD concerns, he was too young to be assessed. MYK had started trauma-focused cognitive behavioural therapy, was progressing well, and very receptive and engaged. MK’s sessions were stalled due to the lack of engagement from the caregiver, NK’s mother. Ms.

Davies could not proceed without engagement from the parent figure, so instead Ms. Davies reviewed coping, communication and relaxation skills with MK whom she said was always engaged and happy to connect. EK seemed much happier and grounded when she saw her in-session with her foster parent, and EK is keen to learn and engaged. [ 126 ] Dr. Hussain’s evidence was that due to MYK’s background history of trauma and emotional abuse in her childhood, she had apparent attachment difficulties.

His management plan was to continue MYK’s trauma focused-CBT play therapy with Bryn Davies and that a permanent placement of the child would be of great help so that she could have a secure base. [ 127 ] The Respondent’s case worker of twenty-two (22) months discussed the Applicant’s decision to seek permanent care and custody of the four older children. When the case worker added there had been little progress in that time, the Respondents suggested it was due to the case worker’s ineptitude.

Numerous issues were discussed, including the possibility of AK’s imprisonment; however, the Respondents maintained this was not open to discussion. [ 128 ] In November 2021, Family Support Worker Laura Winters advised that while the Respondents were engaging in family support

work and AK seemed to be able to “repeat back” what she was supposed to do, it was evident that AK was unable to apply the learning. Ms. Winters’ evidence was she believed she was wasting her time and resources with weekly family support work as it was mostly a “complaint session” and AK did not accept any direction Ms. Winters offered, as AK felt she “…always knows best.” [ 129 ] AK’s affidavit evidence was that the Respondents have had some relationship issues in the past, however, they had made progress and the main stressor in the relationship is the involvement of the Applicant.

AK noted they had both learned coping strategies during therapy, which has helped deal with their issues. AK noted when they had an argument, NK would disengage and leave the area and she had noticed a significant change. [ 130 ] In NK ’s affidavit of December 17, 2021 he states: “One of the agency concerns involves the potential of domestic violence. I have been in counselling as directed by the MFCS and continue to be. I am currently seeing Tay Landry and we have a great relationship in therapy. I have been taught strategies by previous and current therapists.

If AK and I have an argument, I will disengage, leave the area, take a couple of deep breaths and go outside for a few moments and then refocus and return. I have shown this method successfully working. I acknowledge I have previously had anger issues but I have been successful in therapy and my approach has changed. There have been no concerns about my anger in relation to domestic violence in the current proceeding.” [ 131 ] In January 2022, the Applicant received a subsequent Progress Report, dated December 31, 2021, for NK’s individual therapy with Ian Landry. NK expressed similar things and Mr.

Landry’s clinical impression was noted to be unchanged since the previous report. [ 132 ] On February 2, 2022, Social Worker Sarah Elson received a message to call NK. When she called NK, he advised that he and AK were no longer together. He said he was trying to talk to AK about getting the kids back, AK being out of his life so this could happen, and that he had to work on himself. He became upset and tried to get AK to leave the home and an argument and altercation ensued.

He was charged with assault with a weapon. [ 133 ] On the same day the Applicant worker received a message to call AK who confirmed an incident of domestic violence had taken place. She said she was packing to move out but had twenty (20) pets and she was not leaving them there. [ 134 ] On February 3, 2022, Ms. Elson called AK to confirm she was still at NK’s home and she said she was. AK told Ms. Elson that her bong was on the table, and she was not putting it away as she was packing. Ms. Elson said she would be over shortly. She noted the house was untidy, but AK was packing.

She was greeted by multiple cats and dogs who appeared very friendly. AK said that NK also threatened to kill her, tie her up, and beat her until she wasn’t recognizable and when she came to, he would beat her again. AK discussed further particulars and told Ms. Elson that there is a No Contact Order in place as the RCMP charged NK with assault with a weapon. [ 135 ] On February 3, 2022, Agency worker, Ms. Elson met with NK. Ms. Elson confirmed with NK that what he reported yesterday was still correct. He told Ms.

Elson that AK wouldn’t leave after he’d asked her to, that AK had been stealing from him and going out with her sister to find men in the evening, that AK had been cheating on him, he pushed her/hockey-checked her to get out of the house. NK said that she told the RCMP he beat/punched her. He said this was not true. [ 136 ] NK told Ms. Elson that he wanted to focus on himself and the children. He told her that he had a lot of supports to help him.

He said that he has wanted AK gone for a while now but knew it would all blow up when he told her to leave, that all her animals are a problem because she just kept getting more and not caring for them, and that the Band told him that AK had to be out by end of day. [ 137 ] In Sarah Elson’s affidavit filed on February 7, 2022, Ms. Elson stated she spoke with NK’s sister, as a collateral contact. NK’s sister told Ms. Elson that AK is not a good mom. She said that AK needed help. She said that AK had never done anything for the kids. NK’s sister told Ms.

Elson that NK had family for supports and help, but that AK would never let him access them. NK’s sister confirmed that she is a support for her brother and will help him any way she could and that AK is a cheater and she stole from NK. The evidence of NK’s sister is not formally before the Court and although it has not been objected to in any filed documents, the Court has afforded this evidence the appropriate weight. [ 138 ] As AK had advised the Applicant she was on a video chat with her aunt at the time of the alleged incident, the worker contacted AK’s aunt for confirmation.

It was confirmed that the aunt was video chatting with AK during the incident yesterday. According to the Applicant’s evidence, NK started to have a “shitty attitude “calling AK names, said she was a “whore”, and was cheating on him. She reported NK stated he would like to slice AK’s throat. He said he would tie her up in the basement and beat her until she was unrecognizable. The aunt then reported that he then started hitting AK with a broom and said she was trying to remain neutral.

Again, the evidence of AK’s aunt is not formally before the Court and the Court affords it the appropriate weight. [ 139 ] AK’s affidavit of February 22, 2022, paragraphs 8-18, states: “On February 2, 2022, we woke up four hour access visit at 8:03 a.m., [NK] started calling me a ‘Child fucker’ and punched me in the arm and leg. At 8:45 a.m., he hit me with a broom handle and told me he ‘wanted to tie me to the pole in the basement, beat me unconscious and then when I came to, he was going to beat me again.’ Attached as exhibit a are pictures of bruises I sustained.

He also told me he ‘doesn’t like anyone’ and he does not ‘like the children because he sees me in them.’ I began to Facebook video with my aunt … so she could hear what was being said and she called the police. The police arrived and arrested [NK]. He was charged with assault, assault with a weapon and uttering threats. I suffered bruises to my arms and legs which was documented by the police . … I finally had [NK] charged because I had enough with his abusive behavior I needed to free myself from the physically, emotionally, and verbally abusive situation.

I am deeply saddened by the fact that I did not have housing and I am unable to offer a plan of care for my children, I am unable to change the situation between now and the completion of the trial.” [ 140 ] NK’s affidavit filed February 22, 2022, stated: “Regarding the incident on February 2, 2022, the incident did not take place as described by AK. Additionally, the children were not present at the time of the alleged incident.” [ 141 ] As noted above, charges have been laid and there is a no contact order between the Respondents.

The Law [142] The law involving child welfare proceedings is complex.

In the matter before the Court, the Court must weigh the evidence whileconsidering the burden and civil standard of proof, past parenting, prior proceedings, the legal issues pursuant to the relevant sections ofthe CFSA and the Act respecting FNIM, whether the children remain in need of protection, the statutory timelines, credibility and mostimportantly, the best interests of the children. [143] As in all child protection proceedings in Canada the burden of proof is on a balance of probabilities. [144] There is only one civil standard of proof in Canada. In FH v.

McDougall, 2008 SCC 53, the Supreme Court of Canada stated atparagraph 49: I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civilcases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an allegedevent occurred. [145] Quoting the above in Nova Scotia (Community Services) v C.K.Z, 2016 NSCA 61, the Court continued at paragraph 53: We think it appropriate to refer to the approach taken by the trial judge in Minister of Community Services v. M.P., 2014 NSSC 80.

Itarticulates, more fully, the correct burden: [112] A proceeding pursuant to the Children and Family Services Act is a civilproceeding. NS (MCS) v. DJM [2002] N.S.J. No. 368 (NSCS). [113] The burden of proof is on a balance of probabilities, which is not heightened or raised because of the nature of the proceeding.F.H. v. McDougall 2008 SCC 53 [2008] 3 S.C.R. 41, the Supreme Court of Canada held at paragraph 40: Like the House of Lords, I think it is time to say, once and for all in Canada there is only one civil standard of proof at common lawand that is proof on a balance of probabilities.

Of course, context is all important and a judge should not be unmindful, whereappropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences. However, theseconsiderations do not change the standard of proof. And further at paragraphs 45 and 46: To suggest that depending upon the seriousness, the evidence in the civil case must be scrutinized with greater care implies that inless serious cases the evidence need not be scrutinized with such care.

I think it is inappropriate to say that there are legallyrecognized different levels of scrutiny of the evidence depending on the seriousness of the case. There is only one legal rule and thatis that in all cases, evidence must be scrutinized with care by the trial judge. Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. But again,there is no objective standard to measure sufficiency.

In serious cases, like the present, judges may be faced with evidence of eventsthat are alleged to have occurred many years before, where there is little other evidence than that of the plaintiff and defendant. Asdifficult as the task may be, the judge must make a decision.

If a responsible judge finds for the plaintiff, it musts [sic] be acceptedthat the evidence was sufficiently clear, convincing and cogent to that judge that the plaintiff satisfied the balance of probabilitiestest. [146] This is a difficult concept for most people to understand, so for the benefit of the Respondents who will read this: [147] Picture the scales of justice with both sides of the scales equally balanced with credible evidence to support the positions of Party“A” and Party “B”. As the matter continues, Party “A” puts a bit more evidence in their side of the scale.

Party “B” has no moreevidence to put in it. The scales are no longer balanced equally, but one side weighs heavier, the balance of probabilities weighing inParty “A”’s favour. The Court must weigh the evidence applying the civil standard to determine this matter on a balance of probabilities. The burden of proof sits squarely on the Applicant’s shoulders.

Is the evidence sufficiently clear, convincing and cogent for the Court tobe satisfied on the balance of probabilities test as stated above? [148] A first step in determining the answer to that question is to review past parenting and prior proceedings. [149] In Minister of Social Services v. Richardson and Richardson (1980), (NS FC), 44 N.S.R. (2d) 493;(NSFC), Niedermayer, F.C.J., states at paragraph 74: The past events, looked at in a series of frequency and degree, determine what is probable in the future […] the probability of eventsreoccurring are part of the circumstances to be examined.

If there is likelihood with a degree of probability, as opposed to possibility,that the circumstances will continue, then in my opinion, if they are unfit or improper a decision has to be made finding the child inneed of protection. […] The conditions that have existed will, in my opinion, continue to exist and they are unfit and improper for aninfant. […] If the child is placed back into the Richardson home and survives it will become a most abused, confused and bruisedperson.

[ 150 ] More recently, in Nova Scotia (Community Services) v. G.R. 2011 NSSC 88 (affirmed at the Court of Appeal) , Forgeron, J., held at paragraph 22: Past parenting history is also relevant. Past parenting history may be used in assessing present circumstances. An examination of past circumstances helps the court determine the probability of the event reoccurring. The court is concerned with probabilities, not possibilities. Therefore, where past history aids in the determination of future probabilities, it is admissible, germane, and relevant. […] [ 151 ] In M. (K.L.) v.

Nova Scotia (Minister of Community Services) 2007 NSCA 100 , the Court of Appeal stated: “ … evidence of past parenting practices is highly relevant where current child welfare proceedings overlap the former.” [ 152 ] As noted by this Court in Nova Scotia (Community Services) v.

K.S ., 2016 NSFC at page 7 of the decision: Having considered the above, this court has concluded that contextually “overlap” does not of necessity refer to chronology, but rather when the circumstances in a child welfare proceeding mirror those of a previous proceeding involving the same parties and the risk and concerns remain essentially the same.

Then previous evidence should and can have significant weight. [ 153 ] Of note, given a physical hearing was not conducted and cross-examination was waived, is whether the evidence of previous proceedings can also be utilized to determine the “believability” of the evidence. [ 154 ] The Applicant submitted that a Permanent Care and Custody hearing is technically a “Review Hearing” held under

section 46 of the CFSA . Subsection 46(4) of the CFSA , provides the following direction: 46

(4) Before making an order pursuant to subsection (5), the court shall consider (

a) whether the circumstances have changed since the previous disposition order was made; (

b) whether the plan for the child’s care that the court applied in its decision is being carried out; (

c) what is the least intrusive alternative that is in the child’s best interests; and (

d) whether the requirements of subsection (6) have been met. [ 155 ] The Applicant argued: The examination that must be undertaken on a status review is a two-fold examination. The first one is concerned with whether the child continues to be in need of protection and, as a consequence, requires a court order for his or her protection. The second is a consideration of the best interests of the child, an important and, in the final analysis, a determining element of the decision as to the need of protection.

The need for continued protection may arise from the existence or the absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time. [ 156 ] Do the children remain in need of protective services? [ 157 ] In March 2020, the Court determined the children were in need of protective services under

section 40 subsections 22(2)(b), (g), and (

k) of the CFSA . [ 158 ] The Applicant’s position is that the children remain in need of protective services under these grounds. [ 159 ] Respondent NK’s position is the Application should be dismissed and the children returned to him thereby no longer being in need of protective services. NK further argued the main reason the children were in need of protective services was because of AK’s actions not his. NK argued in his brief: “NK submits that the Agency became involved with respect to this proceeding primarily due to an incident involving the children when they were staying with AK.

As mentioned, it was impossible for NK to take steps to alleviate the conduct of AK. It is our respectful submission that the vast majority of alleged conduct in the Applicant’s brief relates to AK (including before 2019.)” [ 160 ] Subsection 22(2)(

b) of the CFSA states: “there is a substantial risk that the child will suffer physical harm inflicted or caused as described in clause (a)” and clause (

a) states: “the child has suffered physical harm, inflicted by a parent or guardian of the child or caused by the failure of a parent or guardian to supervise and protect the child adequately”. [ 161 ] Subsection 22(2)(

g) of the CFSA states: “there is substantial risk that the child will suffer emotional abuse and the parent or guardian does not provide, refuses or is unavailable or unable to consent to, or fails to co-operate with the provision of, services or treatment to remedy or alleviate the abuse”. [ 162 ] “ Emotional abuse” is defined in subsection 3(1)(

a) of the CFSA as acts that seriously interfere with a child’s healthy development, emotional functioning and attachment to others such as: (

i) rejection,

(ii) isolation, including depriving the child from normal social interactions, (iii) deprivation of affection or cognitive stimulation, (iv) inappropriate criticism, humiliation or expectations of or threats or accusations toward the child, or (

v) any other similar acts; [163] Subsection 22(2)(

k) of the CFSA states: “there is a substantial risk that the child will experience neglect by a parent orguardian of the child, and the parent or guardian does not provide, refuses or is unavailable or unable to consent to, or fails to co-operate with the provision of, services or treatment to remedy or alleviate the harm”. [164] The definition of substantial risk as defined in section 22 (1) of the CFSA, means a real chance of danger that is apparent on theevidence. [165] The Applicant submits there are substantial risks that the children will suffer physical harm, emotional abuse, and experienceneglect in care of either or both of the Respondents. [166] There is also evidence that the children have been made aware of violence by or towards their parents, and pursuant to subsection22(2)(

i) of the CFSA, the Respondents have failed to remedy or alleviate the violence. [167] The Applicant argued it is only a “real chance of danger that is apparent on the evidence” that must be established to meet thecivil standard: The Act defines “substantial risk” to mean a real chance of danger that is apparent on the evidence (s. 22(1)). In the context here, itis the real chance of sexual abuse that must be proved to the civil standard. That future sexual abuse will actually occur need not beestablished on a balance of probabilities (B.S. v.

British Columbia (Director of Child, Family and Community Services) (BC CA). [168] Although AK’s counsel does not specifically address the issue of substantial risk, he does state in his brief: “AK adamantlyopposes that the children be returned to NK’s care and it is in her submission that it is not in the children’s best interest to be placedin [NK]’s care.” [169] In her affidavit sworn on March 16, 2022, AK states at paragraph 17: “I finally had [NK] charged because I had enough withhis abusive behavior and needed to free myself from the physically, emotionally and verbally abusive situation.” [170] Based on the above, the Court finds that AK confirmed there is substantial risk, a real chance of danger that is apparent on theevidence. [171] NK submitted that there is not a real chance of danger apparent on the evidence.

The Court takes note of the affidavit evidence ofNK filed on December 17, 2021 and that of AK filed two (2) months later on February 23, 2022. In NK’s affidavit of December 17,2021, he unequivocally stated although he previously had anger issues of concern to the Applicant regarding the potential for violence,he had been successful in therapy and his approach had changed.

His evidence is: “There have been no concerns about my anger inrelation to domestic violence in the current proceeding.” AK’s affidavit of February 22, 2022, tells of an incident of extreme domesticviolence which if accurate shows a side of NK that completely lost control. NK does not refute that an incident occurred.

His evidence isthat it did not occur exactly as noted by AK. [172] This evidence in and of itself is evidence of substantial risk. [173] The Applicant further argued that the history of services provided, their results, and evidence of their application (ormisapplication) by a parent are all relevant to the issue of ongoing need of protective services. [174] In Nova Scotia (Community Services) v.

K.S., 2016 NSFC 2 at page 7, the Court found: If a Court is satisfied on the evidence that services provided by the Applicant were not successful in addressing current or historicalprotection concerns, then the Court must find that the child protection concerns that existed at the time of taking the children intocare still exist at this time. In this case, the Respondent father maintains he found some of his own services and availed himself ofthem. This factor gives significantly more weight to whether existing protection concerns have been effectively addressed.

Thededication and commitment it takes to finding one’s own service providers and getting treatment is a powerful testament to theRespondent father’s will to better himself. That even these services failed him is an equally powerful testament to the fact that theprotection concerns still exist. [175] The Court must also consider the best interests of the children.

Is it better to return the children to a parent with knowndeficiencies and a propensity towards violence or better to subject them to the uncertainties of foster care? [176] “In all proceedings and matters pursuant to this Act, the paramount consideration is the best interests of the child”. (Section2(2) CFSA). Section 3(2) of the CFSA enumerates a non-exhaustive list of a factors for the Court to consider when determining achild’s best interests. [177] FNIM Act came into effect on January 1, 2020. It is not stand-alone legislation and does not replace the CFSA, as the law inNova Scotia.

Section 4 of FNIM states: “For greater certainty, nothing in this Act affects the application of a provision of a provincial

Act or regulation to the extent that the provision does not conflict with, or not inconsistent with, the provision of this Act”. [ 178 ] The legislation is clear that FNIM does not replace the CFSA . [ 179 ] FNIM , section 9(1) clearly sets out: “This Act is to be interpreted and administered in accordance with the principle of the best interests of the child.” And further, Section 10(1) the FNIM states: “The best interests of the child must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services in relation to an Indigenous child and, in the case of decisions or actions related to child apprehension, the best interests of the child must be the paramount consideration.” [ 180 ] The Applicant argued that FNIM enhances the CFSA , and creates minimum standards for child protection in Indigenous communities. [ 181 ] While the Court must interpret and administer the CFSA keeping in mind the purpose of the CFSA is to protect all children from harm, promote the integrity of the family, and assure the best interests of children, the Court must also balance this by interpreting and administering the FNIM in accordance with the principle of the best interests of Indigenous children as set out in section 10(3) of the Act. [ 182 ] The primary consideration in the FNIM is as follows: 10

(2) When the factors referred to in subsection (3) are being considered, primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child’s connections to his or her culture. [ 183 ] The factors a Court must consider when determining the best interests of an Indigenous child are set out in section 10(3) of the FNIM :

(3) To determine the best interests of an Indigenous child, all factors related to the circumstances of the child must be considered, including (

a) the child’s cultural, linguistic, religious and spiritual upbringing and heritage; (

b) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (

c) the nature and strength of the child’s relationship with his or her parent, the care provider and any member of his or her family who plays an import

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