2023 SKKB 41, 2023 SKKB 41

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 41 Date: 202 3 02 17 Docket: FSM-RG-00049-2018 Judicial Centre : Regina IN THE MATTER OF A HEARING UNDER THE CHILD AND FAMILY SERVICES ACT , SS 1989-90, c C-7.2 AND IN THE MATTER OF THE CHILDREN: M.A.B., born […], 2010 AND M.J.B., born […], 2012 Counsel: Darcia G. Schirr, K.C. for the Ministry of Social Services Lara Bonokoski for K.L.B. Christine A. Hansen-Chad for the children JUDGMENT BERGBUSCH J.

February 17, 2023 introduction [ 1 ] This is an application by the Ministry of Social Services [Ministry] regarding two children, M.A.B. (DOB […], 2010) and M.J.B. (DOB […], 2012). The Ministry seeks an order pursuant to ss. 37(1) (

b) and 38(2) of The Child and Family Services Act , SS 1989-90, c C-7.2 [ CFSA ] finding that these children remain in need of protection, designating their grandmother as a person of sufficient interest, and holding that they shall remain in the care of their grandmother on an indefinite basis subject to certain conditions. [ 2 ] At the commencement of the hearing, the Ministry filed a draft order. Through counsel, the mother and the two children have provided their consent to the order sought by the Ministry.

The court is required to determine whether the proposed consent order ought to be granted, having regard for the applicable law and the facts, as proven by relevant and admissible evidence. [ 3 ] Although some evidence relied upon by the Ministry is inadmissible, I have nevertheless determined that the two children remain in need of protection and the draft consent order should be granted, with some modifications. Background [ 4 ] This child protection file has a complicated history. [ 5 ] K.L.B. is the mother of six children, including M.A.B. and M.J.B., and a member of the Cote First Nation in Saskatchewan.

The registration of live birth for each of M.A.B. and M.J.B. identifies D.R. as their father. [ 6 ] Five of K.L.B.’s children, including M.A.B. and M.J.B., were apprehended on June 21, 2018 (At the time, K.L.B.’s eldest child lived with her father). The Ministry applied for a protection order pursuant to ss. 17(4) (

b) of the CFSA , which was

eventually scheduled to be heard on December 12, 2018. However, on December 10, 2018, the Ministry withdrew the application and returned the children to K.L.B.’s care because the responsible case worker believed the children were no longer in need of protection. [ 7 ] On December 12, 2018, K.L.B.’s mother, E.S.B., evicted K.L.B. and her children from her house. The Ministry arranged temporary lodging for K.L.B. and her children until December 17, 2018, when they were moved to Home Inn & Suites, where they lived at the Ministry’s expense.

Despite case workers’ urging, K.L.B. made little effort to find permanent housing. [ 8 ] K.L.B. was evicted from the hotel on May 1, 2019. Photos sent by the hotel manager to the Ministry depicted drugs and drug paraphernalia in the vacated hotel room. A child protection worker met with one of K.L.B.’s children, M.R.B., who disclosed that she had seen K.L.B. smoke “stuff” out of a glass pipe. As a result of these events, three of K.L.B.’s children (M.J.B., M.A.B., and M.R.B.) were apprehended again on May 2, 2019. Two other children were not apprehended because K.L.B. was no longer caring for them.

The Ministry placed the three apprehended children with their maternal grandmother, E.S.B. [ 9 ] On May 9, 2019, the Ministry filed a new application for a protection order and, on September 10, 2019, Justice Megaw found that M.A.B., M.J.B., and M.R.B., were children in need of protection pursuant to s. 11 (

b) of the CFSA . Megaw J. ordered the children to be placed in the custody of the Ministry for a period of four months pursuant to ss. 37(1) (

c) of the CFSA . The order also imposed conditions on the mother, K.L.B., as follows: 3 … That [K.L.B.] shall: (

a) Secure safe and stable housing, suitable for children, and free of drugs, alcohol, and weapons; (

b) Not permit inappropriate any [sic] unsafe individuals into her home or around the children; (

c) Regularly meet with her case worker, provide the Ministry of Social Services with notice of any change of residence, change of roommate, or change in contact information, and allow the Ministry of Social Services to attend at her home for scheduled meeting and unscheduled visits; (

d) Work with in-home parenting supports, as arranged by the Ministry of Social Services; (

e) Complete toxicology screens twice a week, and at the request of the Ministry of Social Services, and consent to a release of information regarding the results; (

f) Attend all scheduled visits with the children, as well as any medical or school-related appointments; and (

g) Attend regular meetings with her case worker for the purposes of case planning. The father of M.A.B. and M.J.B. consented to the court order. [ 10 ] On September 10, 2019, in a second order Megaw J. also found that G.J.R., K.L.B.’s youngest child, was in need of protection and made an order placing her in her father’s custody. [ 11 ] Eventually, the matter came back before Justice Megaw, who ordered on April 21, 2020, that M.A.B., M.J.B. and M.R.B. remained in need of protection pursuant to s. 11 (

b) and should remain in custody for a further period of four months pursuant to ss. 37(1) (c) [Megaw Order]. The Megaw Order imposed conditions on K.L.B. identical to those in the previous order.

The children’s parents did not participate in child protection chambers when the Megaw Order was granted. [ 12 ] On August 21, 2020, the Ministry filed an application for a protection hearing for M.A.B., M.J.B. and M.R.B., in order to seek an extension of the Megaw Order pursuant to s. 38(2) of the CFSA . [ 13 ] On October 6, 2020, a long term wardship order was made for M.R.B. [ 14 ] In respect of the balance of the proceeding involving M.A.B. and M.J.B., a pre-trial conference was held on March 10, 2021. During the pre-trial conference, their mother and father both opposed an order for long term wardship.

K.L.B. indicated that she wanted to parent the children. D.R., who had been participating sporadically in the child protection proceeding by telephone, also advised that he wanted to parent the children in Oregon where he resided. As explained by counsel appointed by the Public Guardian and Trustee, the children wanted to live with their mother but maintain their relationship with their maternal grandmother, with whom they were residing.

On behalf of the Cote First Nation, a representative of the Yorkton Tribal Council Child & Family Services Inc. [YTCCFS] agreed with the Ministry that the children should be subject to a long term wardship order and reside with their maternal grandmother. [ 15 ] Given those irreconcilable positions, the Ministry served an application for a protection hearing pursuant to s. 38(2) of the CFSA , to be held in Regina, Saskatchewan on December 6-14, 2021, at which time the Ministry intended to seek a long term wardship order for M.A.B. and M.J.B.

The notice was served personally on K.L.B. on September 7, 2021; on YTCCFS by registered mail on September 8, 2021; and personally on D.R. on October 29, 2021, in Wood Village, Oregon.

[16] The notice served on D.R. stated that the trial: … may proceed whether or not you and your legal counsel are present, and the Court of Queen’s Bench may make an order in yourabsence that the children [M.A.B.] and [M.J.B.] are in need of protection and that an order issue pursuant to section 37(3) of The Child and Family Services Act.

The Ministry is recommending that the children remain in its care to age 18. [17] Despite his earlier position that he wanted to parent the children, D.R. did not contact the Ministry or the courtor make any effort to participate in the proceedings following service on him of the notice of trial. [18] On December 2, 2021, Megaw J. presided over a case conference call, at which the Ministry’s counsel, counselfor the two children, and K.L.B. participated.

The trial dates set for December 6-14, 2021, were vacated to allow K.L.B. to meet with alawyer with Legal Aid on December 13, 2021. [19] A second pre-trial conference occurred on March 9, 2022. By that time, K.L.B. had secured representation, andher counsel was present along with counsel for the Ministry and the children. Neither D.R. nor YTCCFS participated.

The pre-trialconference report indicates that K.L.B. continued to oppose the Ministry’s recommendation of long term wardship for the two children.A four-day trial was scheduled for December 19-22, 2022. [20] At the start of the hearing on December 19, 2022, counsel for the Ministry advised that an agreement had beenreached among the participating parties on the terms of a consent order. The hearing was adjourned so that the Ministry could fileadditional evidence by affidavit.

When the hearing resumed, two supplementary affidavits filed by the Ministry were marked as exhibits:Exhibit P3, Affidavit of Nina Lindo sworn December 2, 2021; and Exhibit P4, Affidavit of Lindsay Lewandowski sworn December 20,2022. [21] Neither counsel for the mother nor the children objected to the affidavits, along with the exhibits attachedthereto, being marked as full exhibits. No viva voce evidence was called during the child protection hearing.

In support of the reliefrequested, the Ministry relied upon Exhibits P3 and P4, as well as three other affidavits previously sworn by case workers about eventsafter the Megaw Order. overview of legal principles [22] In an application pursuant to s. 38(2) of the CFSA, the court is required to determine whether the childrencontinue to be in need of protection and to make any order authorized by ss. 36 or 37, as required. [23] The CFSA mandates a two-step analysis: Saskatchewan (Minister of Social Services) v E.K.S. (1997), (SK KB), 146 Sask R 46 (Sask QB) [E.K.S.]; M.K.F.B. (Re), 2019 SKQB 133 at para 6, 28 RFL (8th) 216 [M.K.F.B.].

InS.F. (Re), 2009 SKCA 121, [2010] 1 WWR 217, the Court of Appeal referred to E.K.S. as the “controlling authority” in protectionmatters and explained the analysis dictated by s. 37 as follows: [28] In my view, the controlling authority and procedure to be followed in relation to s. 37 is set out in E.K.S. wherein McIntyre J.correctly analyzed the Act [The Child and Family Services Act], outlined the relevant legal principles, and set out the process to befollowed by the court in determining whether a child is or continues to be in need of protection and determining what order should bemade under s. 37 of the Act.

As noted by McIntyre J., s. 37 is constructed in a hierarchical way and the analysis would proceed asfollows: Step 1: determine if the children are in need of protection, and if so Step 2: determine the appropriate order under s. 37 in accordance with the principles set out in E.K.S. Approach this task as follows: (a) (

i) consider the best interests of the child within the meaning of s. 4 of the Act; (ii) may consider the recommendations of the officer. Note: both of these considerations must take place in the context of the objective of the Act as enumerated in s. 3. (

b) determine whether any of the options in s. 37(1) are appropriate. The choices are: (

i) return the children to the parents, with conditions attached if need be, including supervision by the Minister for up to one year; (ii) place the child in the custody of a person having sufficient interest; or (iii) commit the child to the custody of the Minister for up to six months. (

c) if none of the options in s. 37(1) is appropriate, then order, pursuant to s. 37(2), the children to be permanently committed to theMinister; or (

d) pursuant to s. 37(3), if it is unlikely an adoption plan would be made for the child if permanently committed to the Minister, thenorder the child placed in the custody of the Minister until the child is 18 years old. [24] Since Megaw J. determined on April 21, 2020, that M.A.B. and M.J.B. were in need of protection, my task is todecide whether the children remain in need of protection. If the court determines that the children are not in need of protection, the court

“shall dismiss the application and order the return of the child to a person who has a right to custody of the child”: s. 36(3). [25] If the court decides that the children are or continue to be in need of protection, the court must make an order inaccordance with s. 37 of the CFSA. In this case, by the date of the hearing the Ministry was no longer seeking a long term wardship orderfor M.A.B. and M.J.B. pursuant to s. 37(2). Instead, the Ministry sought an order pursuant to s. 37(1)(

b) that the children remain in thecare and custody of their maternal grandmother on an indefinite basis, subject to certain conditions.

Section 37 reads, in relevant part, as follows: 37(1) Subject to subsection (2), if the court determines that a child is in need of protection, the court shall make an order that the child: (

a) remain with, be returned to or be placed in the custody of his or her parent; (

b) be placed in the custody of a person having a sufficient interest in the child; or (

c) remain in or be placed in the custody of the minister for a temporary period not exceeding six months.

(2) If, in the opinion of the court, none of the orders described in subsection (1) is appropriate, the court shall make an order permanentlycommitting the child to the minister. …

(4) In making an order pursuant to subsection (1), (2) or (3), the court: (

a) shall consider the best interests of the child; (

b) may consider the recommendations of the officer mentioned in subsection 36(2); and (

c) may consider the recommendations of a chief, a chief’s designate or an agency that appears in court pursuant to subsection (11).

(5) In making an order pursuant to subsection (1) or (3), the court may: (

a) impose any terms and conditions that the court considers appropriate; and (

b) include in the order a provision respecting access to the child. … [Emphasis added] [26] In making an order pursuant to s. 37, the court must have regard for the best interests of the children, taking intoaccount the factors specified in s. 4 of the CFSA. [27] Because K.L.B. is a member of the Cote First Nation, I have also considered the best interests of the childrenand the principles of cultural continuity laid out at ss. 9 and 10 of

An Act respecting First Nations, Inuit and Métis children, youth andfamilies, SC 2019, c 24. Further, I have taken into account the order of priority for placement of Indigenous children set out at s. 16 ofthis Act. In this case, the outcome would be the same whether I applied s. 11 of the CFSA or the comparable provisions of the federallegislation. Preliminary Matters [28] Before turning to my application of the law to the facts in this case, I will provide some comments regarding theconsent order and the evidence filed in this case.

Consent Orders under the CFSA [29] Irrespective of the parties’ agreement to the terms of a consent order, the court must be satisfied that theproposed order fulfils the objectives and requirements of the CFSA. [30] Chief Justice Popescul’s remarks in C.T.G. v R.R.G., 2016 SKQB 387 at para 11, 86 RFL (7th) 312 regardingconsent orders are apposite, even though his decision addressed child support obligations rather than child protection.

The court has anobligation to scrutinize consent orders to ensure that they accord with the law and the best interests of the affected children: [11] Where parties have had their agreement sanctioned by the court by incorporation of the child support terms into a judgment ororder, a judicial determination has been made. The courts have a duty to scrutinize agreements and consent orders or consent judgmentsthat are submitted by the parties in order to ensure that they comply with the law and are in accordance with the best interests of the childor children who are subject to the order or judgment.

The process is more than just a “rubber stamp”. See Hayes v Hayes (1987), (SK KB), 6 RFL (3d) 138 (Sask QB). [31] Similarly, Justice Goebel commented in M.K.F.B. that the court must ensure that consent orders in childprotection matters are supported by relevant and admissible evidence: [18] In any child protection matter, parties are strongly encouraged to find solutions and reach agreements. In so doing, they havethe ability to enter into private, contractual arrangements.

On the other hand, if they choose to seek relief from the court, even pursuant toa consent order or in default, the court has an overriding responsibility to apply the law in a principled way and to ensure that the order issupported by relevant and admissible evidence. The court cannot be expected to blindly endorse agreements through the issuance ofcourt orders without regard for the legal or evidentiary landscape.

[ 32 ] Each element of the draft consent order must be grounded in admissible and relevant evidence before it will be granted: MSS v A.M.S ., 2019 SKQB 289 at para 10 . See also the comments of Ryan-Froslie J. (as she then was) to similar effect in N. (D.), Re , 2001 SKQB 461 at para 9 , 212 Sask R 123 . [ 33 ] In addition, when the court makes an order pursuant to s. 37 of the CFSA , the court must provide a written

summary of its reasons for determining that a child is in need of protection: s. 37(9) . This reinforces that the court’s role in reviewing proposed consent orders under the CFSA is not simply perfunctory. Admissibility of Evidence [ 34 ] As noted, no witnesses were called to testify by the Ministry at the hearing. The Ministry’s evidence consisted of five affidavits, including three affidavits previously filed at various stages in this proceeding.

These affidavits attached as exhibits a variety of records, such as a hospital chart for K.L.B., drug screens and toxicology results, numerous records subpoenaed from the Regina Police Service [RPS], psychological and other specialized reports, and so on. [ 35 ] The court must determine whether this evidence is admissible and, if so, for what purpose. [ 36 ] Counsel for the Ministry referred the court to the reasons of Ottenbreit J.A. in B.L. v Saskatchewan (Social Services) , 2012 SKCA 38 , [2012] 12 WWR 468 [ B.L. ], as authority for the proposition that records of the RPS could be admitted in evidence for the truth of their contents as business records.

In B.L. , the Ministry had adduced integrated electronic information system [IEIS] records of the RPS, which included “ entries regarding police involvement with the parents, including calls from third parties; attendances at the parents’ home; admissions from the parents themselves and from third parties; and particulars of alleged criminal offences upon which charges did not proceed or convictions did not result”: B.L. at para 8 .

From this description the records in B.L. appear to have been very similar to the police records attached to the social worker’s affidavit (Exhibit P4) in this case. [ 37 ] The provisions of The Evidence Act , SS 2006, c E-11.2 that authorize the admission of business records as evidence of the “act, transaction, occurrence or event” read as follows: 50(1) Any record made of any act, transaction, occurrence or event is admissible in any proceeding as evidence of the act, transaction, occurrence or event if: (

a) it was made in the usual and ordinary course of a business; and (

b) it was in the usual and ordinary course of the business to make the record at the time of the act, transaction, occurrence or event or within a reasonable time after the act, transaction, occurrence or event.

(2) The circumstances of the making of a record mentioned in subsection (1), including the time of making the record in relation to the time of the act, transaction, occurrence or event and lack of personal knowledge by the maker, may be shown to affect its weight, but those circumstances do not affect its admissibility. … 52(1) Subject to this section, a copy of an entry in a record kept by a business is admissible in any proceeding as proof, in the absence of evidence to the contrary, of the entry, and of the acts, transactions, occurrences and events recorded in the entry.

(2) A copy of an entry in a record kept by a business shall not be received in evidence pursuant to this

section unless it is first proved that : (

a) the record was, at the time of the making of the entry, one of the ordinary records of the business ; (

b) the entry was made in the usual and ordinary course of business ; (

c) the record is in the custody or control of the business or its successor; and (

d) the copy is a true copy .

(3) The proof described in subsection (2) may be given by the manager or accountant of the business or by any person employed by the business who has knowledge of the record, and may be given orally or by affidavit . [Emphasis added] [ 38 ] Before a business record can be admitted in reliance upon these provisions, the party seeking to adduce the evidence must prove that the four conditions set out in s. 52(2) of The Evidence Act have been satisfied.

In B.L. , a staff sergeant employed by RPS with knowledge about the records within the meaning of s. 52(3) of The Evidence Act was called to testify, after which the trial judge found that the four conditions of s. 52(2) of The Evidence Act had been met. [ 39 ] In his appeal decision in B.L. , Ottenbreit J.A. cited with approval a

summary of the applicable principles for admissibility distilled by Ryan-Froslie J. (as she then was) in a child protection case, and concluded that those principles govern the admissibility of records pursuant to ss. 50 - 52 of The Evidence Act : [24] In S.V. (Re) , 2002 SKQB 499 , 228 Sask.R. 161 the court dealt with investigation records, assessments and case plans, social histories and an application for exceptional funding, all proffered by the Ministry as admissible pursuant to s. 31 of the Saskatchewan Evidence Act (as it then was) or alternatively pursuant to the common law business records exception.

In that case, Ryan-Froslie J. determined that virtually none of the documents were admissible because they contained summaries or condensed versions of the act, transaction or occurrence or opinions they purported to record. In making that ruling respecting admissibility under the statutory business

records provision she relied on Setak Computer [Setak Computer Services Corporation Ltd. v Burroughs Business Machines Ltd. et al(1977), (ON SC), 76 DLR (3d) 641 (Ont. H.C.)]. At para. 30, Ryan-Froslie J. summarized the principles of Setak asfollows: (

i) The evidence must be a writing or record produced by a business as that term is defined in the statutes.

At pages 647-648 of the SetakComputer Services Corp. decision, Justice Griffith made reference to the fact that the Ontario statutory provision was "...cast in verybroad terms so as to encompass practically every type of writing utilized in connection with any business". (ii) The writing or record must be made in the usual and ordinary course of a business (See: page 649 of the Setak decision). (iii) It must be in the usual and ordinary course of the business to make such writing or record (See: pages 649-650 of the Setakdecision). (iv) The writing or record must be made at the time of or within a reasonable time after the act, transaction, occurrence or event it isintroduced as evidence of (See: page 651 of the Setak decision). (

v) Business records are not proof of the validity of any opinion expressed therein (See: page 652 of the Setak decision where JusticeGriffith quoted with approval the case of Adderly v. Bremner, (ON SC), [1968] 1 O.R. 621 (Ont. H.C.), which statedthat opinions would not be accepted as evidence unless given by a duly qualified expert). (vi) Lack of personal knowledge does not affect the admissibility of the writing or record (See: page 652 of the Setak decision). To these principles Ryan-Froslie J. added an additional principle: 31 . . . The writing or record must be of

an act, transaction occurrence or event; [i.e. a positive happening which is routinely recorded.] [25] These principles will normally guide the determination of whether records are admissible pursuant to ss. 50-52 of The Evidence Act. [40] The court has discretion to admit records that are inadmissible as business records “for the limited purpose ofnarrative or background”: B.L. at para 33.

An example is the decision by Wilkinson J. in V.J.C. (Re), 2009 SKQB 395 [V.J.C.], to admita family’s lengthy case history, summaries prepared by case workers who were unavailable for cross-examination, and third partyreports, not for the truth of their contents, but for the purpose of explaining the actions of Ministry witnesses who testified that theyreviewed the documents and acted on them.

In other words, these records were admissible for a non-hearsay purpose. [41] In B.L., Ottenbreit J.A. ultimately concluded that the trial judge did not err in admitting the IEIS records, sincethe Ministry had discharged its evidentiary burden by calling the staff sergeant to testify about their creation: [44] The use of the business records exception whether documents are tendered under s. 50 or s. 52 is an entirely appropriate tool toprove certain relevant facts. There was nothing inherently unfair in this process. It does not relieve the Ministry of its ultimate burden.

Inthis case, the evidentiary onus was on the Ministry to justify the admission of the records under The Evidence Act. They did this bytendering the documents and calling Sgt. Wyatt who testified about the creation of the records. … [Emphasis added] [42] If the requirements of The Evidence Act are not met, a party can still seek to have a record admitted inaccordance with the principled exception to the hearsay rule. The Ministry has not suggested in this case that any records should beadmitted on that basis. [43] One final aspect of the decision of Ottenbreit J.A. is worth noting in the present situation.

In B.L., both theparents and the Ministry applied to file further evidence on appeal to provide an update of events involving the children and their parentssince the trial decision. On the Ministry’s part, the supplementary evidence included the affidavit of a social worker, who, among otherthings, sought to introduce additional police records. In B.L.

Ottenbreit J.A. determined that these police reports were inadmissiblebecause they were hearsay and the requirements of The Evidence Act had not been satisfied: [78] … A second affidavit of Darlene Walliser dated May 26, 2011 consists of information about the parents’ involvement with thepolice. It references information in police reports and IEIS records and also attaches Provincial Court Informations and endorsements.This affidavit is not admitted. All of it is hearsay to start with. As well, Ms.

Walliser is not part of the organization that created the recordand therefore cannot speak with any authority about it. It is a written

summary of a verbal recounting of business records. None of theprerequisites to admissibility set forth in The Evidence Act are disclosed in the affidavit. [44] The Saskatchewan Court of Appeal recently reaffirmed in A.M. v.

Ministry of Social Services, 2020 SKCA 114[A.M.], that, while the rules of evidence may be somewhat relaxed in child protection hearings, evidence must still meet the tests ofrelevance and reliability: [120] While it is fair to say the rules of evidence can be somewhat relaxed in family law and child protection proceedings to ensure thatall relevant evidence pertaining to children is before the court, that does not mean the rules of evidence have no application. All evidencemust still meet the tests of relevance and reliability (see: S.V., Re, 2002 SKQB 499, 228 Sask R 161).

Otherwise inadmissible hearsayevidence should not be relied upon for the truth of its content in determining crucial issues in child protection hearings but is admissibleto complete the narrative or to put things in context (DCP v C.P. & T.P., 2014 PECA 18 at para 48). Contextual information that isconfined to primary sources of information, or records made in trustworthy circumstances is entitled to weight in the decision-makingprocess (J.B., Re, 2013 SKQB 272). … [Emphasis added]

[ 45 ] In the present case, the court file contains the affidavit of Lorrie Hanna dated October 15, 2018. Ms. Hanna, the Manager of Police Information and Evidence Management at RPS, explained that RPS maintains an IEIS, which collects all police concerns and investigative material, as well as court-related documents, related to police occurrence reporting. Ms. Hanna confirmed that the documents attached to her affidavit had been obtained from the IEIS. Ms.

Hanna also averred that information in the IEIS is entered by officers at or near the time of the incident, in as much detail as is available and the situation requires. The police occurrence reports provided details of several interactions between police and K.L.B., including an alleged incident on April 19, 2018, where K.L.B. had attempted to strike someone with the vehicle she was driving. The report indicates that K.L.B.’s children G.J.R. and M.J.B. were in the back seat. Following that incident K.L.B. was charged with a criminal offence.

K.L.B. was also charged with carrying a concealed weapon and failing to stop at the scene of an accident related to alleged incidents on June 17, 2018. This evidence was all admissible, consistent with the Court of Appeal’s reasons in B.L . [ 46 ] In contrast, E xhibits C – J to the affidavit of Lindsay Lewandowski sworn December 20, 2022 (marked as Exhibit P4) are inadmissible, with two limited exceptions. Ms. Lewandowski is a social worker with the Ministry.

The exhibits purport to show K.L.B.’s involvement with the RPS on June 26, 2020, July 21, 2020, November 30, 2020, July 12, 2021, January 8, 2022, April 24, 2022, May 23, 2022, and July 26, 2022. Ms. Lewandowski is not an RPS employee and did not and could not give evidence about the circumstances in which these police occurrence records were created. The four prerequisites for admission of these records have not been met. While counsel for K.L.B. did not object to the admission of these records, she did advise the court that K.L.B. did not concede the truth of their contents.

I have not considered Exhibits C – J for the truth of the events they recount. [ 47 ] However, I can consider the police reports dated July 21, 2020 and July 12, 2021 for a non-hearsay purpose. Case workers received information about K.L.B.’s involvement with police on July 21, 2020, and took action to locate and assist K.L.B., as I will describe below. Further, K.L.B.’s health records for the period of July 13-20, 2021, have been tendered in evidence, and the police report of July 12, 2021, can be considered as part of the narrative related to her hospital admission. [ 48 ] Ms.

Lewandowski’s affidavit attaches a psychological assessment report about M.A.B. dated February 20, 2020, prepared by a senior psychologist with the Saskatchewan Health Authority, and an occupational therapy assessment report dated May 26, 2020. Both reports were prepared in response to challenges E.S.B. initially faced with M.A.B. when her granddaughter was placed with her. In addition, Ms. Lewandowski’s affidavit attaches a document, entitled “2022-2023 Impact Assessment Inclusion and Intervention Plan,” prepared by a collaborative team at [redacted] School in the Regina Public School system.

The report addresses M.A.B.’s functioning as a student and identifies areas that affect her learning. From my review, no one from the Ministry participated in preparing the document. [ 49 ] A report regarding M.J.B., attached to Ms. Lewandowski’s affidavit, is entitled “Violence Threat Risk Assessment (VTRA)” [VTRA].

This assessment addresses troubling incidents involving M.J.B. and school staff, and was prepared by the VTRA members, who include Regina Public School and RPS employees (Exhibit N). [ 50 ] None of these reports contains information relevant to the question whether the children remain in need of protection. They might have some bearing on the court’s analysis of the recommended placement order. In any event, the contents of these reports are hearsay. No one who was involved in their preparation has provided evidence to the court.

None of the prerequisites to the admission of these reports as business records has been met. This situation is distinguishable from the circumstances in A.M. (see paras 118-120 ), where the Court of Appeal determined that two OPIK [Opikinawasowin] reports were admissible, since the trial judge had heard testimony proving that the OPIK reports were business records. [ 51 ] Accordingly, I have also not considered Exhibits K - N in determining whether the consent order should be granted, except insofar as Ms.

Lewandowski testified about steps taken by the Ministry in response to these reports. [ 52 ] Exhibit O to Ms. Lewandowski’s affidavit is an Extended Family Assessment Report prepared by the Ministry between March to June 2020 concerning the grandmother’s ability to care for M.J.B., M.A.B. and M.R.B. Since it is tendered, without objection, for the purpose of assisting the court to determine whether E.S.B. should have care and custody of the children, I am prepared to admit this report for its truth with respect to observations regarding M.J.B., M.A.B., and their grandmother E.S.B.

I am not prepared to give any weight to numerous hearsay statements contained in the report. For example, a

section entitled “Child Protection and Caregiver/Provider History” appears to be a

summary of information drawn from various sources, including police reports, and is hearsay. [ 53 ] I have also considered s. 28 of the CFSA . Among other things, this provision permits the court to admit evidence by affidavit or any other means authorized by The Queen’s Bench Rules . It also authorizes the court to admit hearsay evidence if, in the opinion of the court, the evidence is credible and trustworthy and it would not be in the best interests of a child to testify. This

section does not create an alternate basis for the court to admit for their truth records such as police records, since children’s testimony would not otherwise be required for these records to be admitted in evidence: see B.L. at para 19 , where the Court of Appeal concluded that s. 28(3) had no application to police records.

Step 1: Are M.A.B. and M.J.B. in Need of Protection? [ 54 ] I will now turn to the two-step analysis outlined by McIntyre J. in E.K.S . [ 55 ] On the basis of the admissible evidence, as well as K.L.B.’s concession expressed through her counsel during the child protection hearing, I find on a balance of probabilities that M.A.B. and M.J.B. continue to be children in need of protection. [ 56 ]

Section 11 of the CFSA specifies the circumstances that must exist for the court to find that a child is in need of protection and reads, in relevant part, as follows: 11 A child is in need of protection if:

(

a) as a result of action or omission by the child’s parent : (

i) the child has suffered or is likely to suffer physical harm ; (ii) the child has suffered or is likely to suffer a serious impairment of mental or emotional functioning ; (iii) the child has been or is likely to be: (

A) exposed or subjected to harmful interaction for a sexual purpose, including sexual contact, activity or behaviour; or (

B) sexually exploited by another person, including conduct that may amount to an offence within the meaning of the Criminal Code ; (iv) medical, surgical or other recognized remedial care or treatment that is considered essential by a duly qualified medical practitioner has not been or is not likely to be provided to the child; (

v) the child’s development is likely to be seriously impaired by failure to remedy a mental, emotional or developmental condition; or (vi) the child has been exposed to interpersonal violence or severe domestic disharmony that is likely to result in physical or emotional harm to the child; (

b) there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur ; or (c) … [Emphasis added] [ 57 ] In its application dated August 21, 2020, the Ministry relied upon s. 11 (b), stating as the reason for the application, “There is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur.” Given that the consent order seeks to place M.J.B. and M.A.B. with their maternal grandmother, presumably the Ministry now advances a different basis for the order in reliance upon s. 11 (

a) of the CFSA . [ 58 ] The Ministry’s notice of application refers to several circumstances that led originally to the application, which I summarize as follows: (

a) K.L.B.’s limited efforts to secure adequate housing for her children; (

b) The fact that, when K.L.B. and her children were evicted from the hotel on May 1, 2019, the hotel room had evidence of drug use and drug paraphernalia (as well as supplies to produce methamphetamines); (

c) K.L.B.’s failure to engage in “case planning” and to develop a case plan with the Ministry, contrary to a Family Service Agreement she signed with the Ministry on July 7, 2020; (

d) K.L.B.’s failure to address her addictions; and (

e) The length of time M.J.B. and M.A.B. have been in care and the need to establish permanence and stability for them. [ 59 ] It is worth reiterating the conditions imposed on K.L.B. in the Megaw Order, as they indicate the problems that K.L.B. had to address so that M.J.B. and M.A.B. would no longer need protection. K.L.B. was ordered to: (

a) Secure safe and stable housing, suitable for children, and free of drugs, alcohol, and weapons; (

b) Not permit inappropriate any [sic] unsafe individuals into her home or around the children; (

c) Regularly meet with her case worker, provide the Ministry of Social Services with notice of any change of residence, change of roommate, or change in contact information, and allow the Ministry of Social Services to attend at her home for scheduled meeting and unscheduled visits; (

d) Work with in-home parenting supports, as arranged by the Ministry of Social Services; (

e) Complete toxicology screens twice a week, and at the request of the Ministry of Social Services, and consent to a release of information regarding the results; (

f) Attend all scheduled visits with the children, as well as any medical or school-related appointments; and (

g) Attend regular meetings with her case worker for the purposes of case planning. [ 60 ] My focus is on events following the Megaw Order. No evidence has been tendered showing that K.L.B. has permitted inappropriate or unsafe individuals to enter her home or to be around the children. Further, none of the affidavits provides information about K.L.B.’s participation (or lack thereof) in medical or school appointments with her children. There is also no evidence of a

schedule for K.L.B.’s visits with her children, although one case worker attested that K.L.B. was seeing her children M.J.B. and M.A.B. at her mother’s house on a nearly weekly basis. Noncompliance with those conditions in the Megaw Order has not been established. [ 61 ] However, the evidence demonstrates that K.L.B. has been unable to secure safe and stable housing for her

children. Further, K.L.B. has failed to meet regularly with her case workers or to cooperate in any meaningful way with the Ministry. Finally, K.L.B. has consented to the release of only a few toxicology test results to the Ministry, and has fallen far short of the condition that she complete such screens twice a week. [ 62 ] Following the Megaw Order, K.L.B. did not engage with the Ministry for several months. On July 7, 2020, K.L.B. unexpectedly met with her case worker, Jenna McCormick, to advise that she was moving to Calgary, Alberta and wanted to regain custody of the children so they could move with her.

She offered to have a child protection worker visit her new house once she was settled. Ms. McCormick warned that if K.L.B. did not participate in case planning, the Ministry would apply for long-term wardship orders for the children. K.L.B. committed to case planning. K.L.B. also conceded she had been struggling with substance abuse but claimed she was sober and would provide the Ministry with drug screens. At the meeting, K.L.B. signed a Family Services Agreement with the Ministry “for services designed to strengthen and support your family” for the period July 7 to September 7, 2020.

The agreement included the following elements: (

a) The Ministry was involved because of “concerns with substance use & inadequate housing.” (

b) The “goal statement” was that “[K.L.B.] will reside in a safe & stable environment with her children free from substance use.” (

c) K.L.B.’s “Case Plan Action Steps” were to demonstrate and maintain sobriety, to find and maintain safe and stable housing, to provide twice weekly toxicology screens, to sign a release of information with her case worker, to allow workers into her home to assess her housing, and to have bi-weekly contact with the Ministry case worker. [ 63 ] In essence, K.L.B.’s obligations under the agreement restated the conditions in the Megaw Order. [ 64 ] Ms.

McCormick’s next involvement with K.L.B. was on July 24, 2020, when the Ministry received an intake report from the RPS that police had found K.L.B. with her daughter G.J.R. at a grocery store in south Regina. The RPS report indicated that K.L.B. said she had no money and was staying at a hotel. [ 65 ] Ms. McCormick and her assistant supervisor Caitlin Guy went looking for K.L.B. After checking for her at the hotel, they found her with G.J.R. in the parking lot of a nearby discount store. K.L.B. was running around the parking lot while pushing her daughter in a full grocery cart.

While she was running, approximately ten $100 bills started blowing around and K.L.B. began trying to collect them. Ms. McCormick reminded K.L.B. that she was not permitted to parent G.J.R. while on her own, but K.L.B. was focussed on trying to collect the money. Ms. McCormick saw that K.L.B.’s eyes appeared heavy and she was slurring her words, and she assessed K.L.B. to be under the influence. When confronted, K.L.B. denied that she was impaired and said she had autism. Ms. Guy accompanied K.L.B. back to the hotel, while Ms. McCormick waited for G.J.R.’s father to pick her up. [ 66 ] Ms.

McCormick next spoke to K.L.B. on September 3, 2020, about the Ministry’s proposed long-term wardship orders. K.L.B. again said that she wanted to case plan with the Ministry. Ms. McCormick responded that K.L.B. had yet to meet any of the case plan goals in the Family Services Agreement. Next, K.L.B. missed a meeting with her case worker on September 8, 2020. Ms. McCormick spoke to K.L.B. by telephone on September 14, 2020, to arrange for service of the Ministry’s notice of application. K.L.B. would not give an address or a time to meet.

However, K.L.B. advised the court in child protection chambers on September 22, 2020, that she wished to case plan with the Ministry. [ 67 ] K.L.B. missed a meeting with Ms. McCormick on September 25, 2020, cancelled the next meeting on October 20, 2020 at the last minute, and then arrived late to their rescheduled meeting on October 21, 2020. Ms. McCormick observed that K.L.B. was fidgety and struggled to remain focussed. K.L.B. signed a new Family Services Agreement for the period October 21 to December 21, 2020, which reiterated the stipulations in the previous agreement. During their meeting, Ms.

McCormick advised K.L.B. that the Ministry would not support her reunification with her children until she had secured adequate housing. [ 68 ] They next spoke on November 12, 2020, after another of K.L.B.’s children had been apprehended. K.L.B. agreed to meet with the social worker handling that child’s file and reported that she had completed one toxicology test. [ 69 ] Ms. McCormick and Ms. Guy met with K.L.B. on November 18, 2020. Ms. McCormick observed that K.L.B. appeared to be passed out or sleeping in the reception area. K.L.B. claimed that her prescription medication made her drowsy.

Throughout their meeting, K.L.B. appeared very lethargic and slurred her words. They reviewed K.L.B.’s Family Services Agreement, and K.L.B. signed a release so that the Ministry could obtain the results of her drug tests. K.L.B. explained she was using marijuana for pain management. K.L.B. was still looking for housing and was staying with her sister but refused to provide her sister’s address. Ms. Guy offered to assist K.L.B. to find permanent housing. [ 70 ] On November 19, 2020, the Ministry received drug screen results for K.L.B. showing collection dates of November 11 and 14, 2020.

They were positive for marijuana but nothing else. [ 71 ] The file for K.L.B.’s children was reassigned to Ms. Guy, who met with K.L.B. on December 2, 2020. K.L.B. provided Ms. Guy with her new address and showed a copy of her residential lease. K.L.B. refused to provide a release for her medical records but did say she was working on completing more drug screens and obtaining a letter from her physician to explain her prescription medication. [ 72 ] On December 8, 2020, Ms. Guy contacted K.L.B. since she had missed a court hearing.

During the conversation, K.L.B. advised that she would not be staying at her new house as there were mice and roaches and she was going to stay with one of her sisters. After further attempts to contact K.L.B., Ms. Guy heard from her on December 31, 2020. K.L.B. said she did not

understand why she had to continue working with the Ministry since she had provided clean drug screens. Ms. Guy reminded her that she had only provided two drug screens and had not addressed any of the other elements of the case plan. K.L.B. requested a taxi so she could pick up disclosure from the Ministry, but then failed to follow up. Ms. Guy had no contact with K.L.B. between December 31, 2020 and February 4, 2021. [ 73 ] The affidavit of Ms.

Lewandowski, a social worker with the Ministry and an officer as defined in the CFSA , provided an overview of the Ministry’s four year involvement with K.L.B. and her children, as well as more recent information covering the period from February 2021 to December 2022. Ms. Lewandowski supervises the unit within the Ministry that has oversight for the child protection matters involving M.A.B. and M.J.B. [ 74 ] A s noted earlier, Ms. Lewandowski’s affidavit includes records subpoenaed by the Ministry from the RPS, including an occurrence report showing that K.L.B. was involved with RPS on July 12, 2021.

That interaction led to K.L.B.’s admission to the Regina General Hospital [RGH] on July 13, 2021. [ 75 ] Records of K.L.B.’s hospital stay were entered in evidence by the Ministry through the Affidavit of Nina Lindo, sworn December 2, 2021. Ms. Lindo is the Manager of Health Information Management Services [HIMS] at RGH and a trustee pursuant to The Health Information Protection Act , SS 1999, c H-0.021 . As such, she is responsible to protect the security, accuracy and integrity of health records.

HIMS is the central repository at RGH for all records created, maintained and kept for all individuals accessing health services at RGH. Ms. Lindo was served with a subpoena dated November 22, 2021, to produce the complete hospital chart for K.L.B. She attested that the chart consists of tests, laboratory reports, and reports, notes and records created by health care professionals. I find that the hospital chart is admissible as a business record. [ 76 ] K.L.B.’s hospital chart documents that she was brought to the RGH on July 13, 2021, by RPS emergency medical personnel.

K.L.B. had been picked up at her mother’s house by police. K.L.B. was acting strangely and claimed she was in labour. She was taken to a cell and later found on the floor, in the fetal position, covered in feces. At the hospital, K.L.B. was observed exhibiting bizarre behaviour, her level of consciousness was disturbed, and she was agitated and uncooperative to orders or in responding to questions. She was admitted to the hospital and treated with antipsychotics, sedatives, and other medications for suspected crystal meth use.

Progress notes dated July 17, 2021, record that K.L.B. stated she had been using fentanyl a lot. K.L.B. was eventually diagnosed with substance-induced psychotic disorder. She was discharged on July 20, 2021, with an appointment for further psychiatric treatment on an outpatient basis. [ 77 ] Apart from the two drug screens from November 2020, the Ministry did not receive any other toxicology reports for K.L.B. until December 12, 2022, when the Ministry received a fax from the Regina Recovery Centre attaching eight toxicology results for dates in September, October and November 2022.

All eight tests were positive for methadone (sometimes used to treat opioid addiction) and most were positive for alcohol, but negative for any other substances. K.L.B.’s toxicology results were filed as an exhibit to Ms. Lewandowski’s affidavit.

I take note that K.L.B. did complete eight drug screens during the three-month period preceding the child protection hearing, but without some medical evidence I am unable to draw any conclusions from the toxicology results themselves. [ 78 ] The evidence does establish that K.L.B. has been unable to secure safe and stable housing for M.J.B. and M.A.B. since the date of the Megaw Order. K.L.B. appears to move around frequently, sometimes “couch-surfing” with friends or staying with a sister or in motels.

Her transient lifestyle is also reflected in many affidavits of attempted service, where process servers hired by the Ministry attested to their futile efforts to locate K.L.B. to serve documents on her. Case workers offered on numerous occasions to assist K.L.B. to locate permanent housing, but she rebuffed their assistance. [ 79 ] K.L.B. has often said that she will participate in case planning with the Ministry to regain custody of her children, but she has never followed through with concrete action.

Child protection workers have frequently chased K.L.B. in order to arrange meetings, provide disclosure to her, and so on. K.L.B. has often missed or arrived late for meetings scheduled with case workers. Although the Ministry has offered K.L.B. access to services, including the Ranch Ehrlo Family Preservation Program and Fox Valley Counselling, which offers a family support worker program, K.L.B. has made it clear she does not want the assistance of the Ministry or any other agency.

During the child protection hearing, K.L.B.’s counsel advised the court that K.L.B. remains unwilling to work with the Ministry. [ 80 ] Evidence that K.L.B. has an ongoing substance abuse problem is equivocal. K.L.B.’s failure to complete toxicology tests twice weekly, as ordered by Megaw J., has contributed to a lack of information about her possible difficulties. Case workers observed K.L.B. behaving sluggishly and erratically on several occasions, which led them to suspect she was under the influence. K.L.B. did have a significant health event in July 2021 precipitated by substance abuse.

However, the most recent drug screens she completed were positive only for alcohol and methadone. The evidence before the court does not explain whether K.L.B.’s alcohol and methadone use should be cause for concern. [ 81 ] Notwithstanding an evidentiary record that contains some gaps, I have concluded that M.J.B. and M.A.B. continue to be children in need of protection. I reach this conclusion primarily for the reason that K.L.B. has been unable to secure stable and safe housing for herself or her children.

I also take into account K.L.B.’s own admission that the children are in need of protection, communicated through her counsel at the hearing. Step 2: What is the Appropriate Order Under s . 37? [ 82 ] In order to determine what order to make under s. 37 of the CFSA , I am required to consider the best interests of the children, having regard for the factors in s. 4 and the objective of the CFSA as specified in s. 3 . [ 83 ] I may also consider the recommendation of the officer, in this case Ms.

Lewandowski, who affirmed the Ministry’s recommendation that E.S.B. be designated as a person of sufficient interest and that M.A.B. and M.J.B. remain in her care on an indefinite basis, subject to the following conditions:

(

a) E.S.B. shall not return the children to the care and custody of K.L.B. or D.R. without advance approval of the Ministry or order of the court; (

b) K.L.B. shall have reasonable access to the children as arranged with her mother; and (

c) Within six months, the Ministry, K.L.B. and E.S.B. would review and fully discuss the circumstances of the children and K.L.B.’s compliance with the conditions. [ 84 ] Ms. Lewandowski provided her opinion that the recommended order is in the best interests of the children, as E.S.B. has provided a safe and stable home for her grandchildren and is committed to them. Ms.

Lewandowski affirmed that the Ministry would continue to provide supports and services to E.S.B. as she and the children may require. [ 85 ] An order to return M.J.B. and M.A.B. to the custody of either of their parents, possibly with conditions and supervision by the Minister for up to one year, is not in the best interests of M.J.B. and M.A.B. K.L.B. has not had custody of the children since May 2, 2019. From that date to present, she has not been able to secure safe and stable housing for herself or her children. She has rejected offers by the Ministry to assist her to find appropriate housing.

Returning the children to her custody is not a realistic option, given that her inability to provide a stable home for them is the primary reason for my finding that they remain in need of protection. I also place considerable emphasis on the fact that K.L.B. has now consented to an order placing the children in her mother’s care indefinitely. [ 86 ] Further, I cannot consider placing M.J.B. and M.A.B. in their father’s care.

While at one stage of this proceeding he expressed an interest in parenting his children by moving them to Oregon, the evidence before the court suggests he has had minimal, if any, contact with them since at least 2018. D.R.’s non-participation in the child protection hearing means that I have no way to assess whether placing the children with him is a viable option.

Ordering that M.J.B. and M.A.B. be placed in his care would not promote their well-being and would not serve to “maintain, support and preserve the family in the least disruptive manner,” in keeping with the CFSA ’s objective. [ 87 ] The alternative supported by the Ministry is an order placing the children in the custody of a person having a sufficient interest. As their maternal grandmother, E.S.B. is by definition a member of their extended family. Accordingly, as requested by the Ministry, I designate E.S.B. a person having sufficient interest in M.A.B. and M.J.B. pursuant to s. 23(1) (

a) of the CFSA . Further, as required by s. 23(3), I direct that any notices to be served in relation to M.A.B. and M.J.B. be served on E.S.B. [ 88 ] I turn to the non-exhaustive factors set out in s. 4 of the CFSA to determine whether the best interests of the children is that they be placed indefinitely in their grandmother’s custody.

Applying this standard is necessarily an individualistic and highly discretionary exercise, where the court attempts to support conditions that are most likely to enable the children to develop and flourish: see V.J.C. at para. 7 ; T.B.S. v S.J.B , 2020 SKCA 93 at para 22 , 45 RFL (8th) 148 . Quality of the relationship that the children have with E.S.B. [ 89 ] E.S.B.’s grandchildren have resided in her care since May 2, 2019, and she has been a constant in their lives. According to the Extended Family Assessment Report dated July 28, 2020, E.S.B. and her grandchildren have a strong bond to each other.

E.S.B. openly shows emotion by telling her grandchildren that she loves them as they leave for school, and they respond in kind and often ask her about her day. E.S.B. has provided a stable environment and routine for her grandchildren and demonstrated patience towards them and an appreciation of their needs. Ms. McCormick observed that M.A.B.’s and M.J.B.’s behaviour improved once they settled into E.S.B.’s home, in part because of her patience and ability to stick to a routine. E.S.B. also ensured that M.J.B. received medical attention when he was ill.

When another grandchild, M.R.B., was also living with her and was having trouble with other children at school, E.S.B. engaged her in conversation and followed up with the school and the child protection worker. [ 90 ] The evidence shows that E.S.B. provides M.A.B. and M.J.B. with safe and stable housing and she has a loving relationship with her grandchildren. The mental, emotional, physical and educational needs of the children and the appropriate care or treatment, or both, to meet those needs [ 91 ] M.A.B. is presently in grade 7 at [redacted] School.

When M.A.B. was first placed in her grandmother’s care, E.S.B. found some of her granddaughter’s behaviour difficult to manage. In consequence, M.A.B. was referred to Child and Youth Services for an assessment, which resulted in a psychological assessment report dated February 20, 2020, and an occupational therapy assessment report dated May 26, 2020. M.A.B. is also part of an inclusion and intervention plan at [redacted] School. [ 92 ] M.J.B. is in grade 5 at [redacted] School, where he transferred in September 2022 after previously attending a different school.

He had exhibited some behavioural problems, involving threats made to staff. The Ministry was provided with a document prepared by the Regina Public School Board entitled “Violence Threat Risk Assessment (VTRA),” which described an incident on March 15, 2022 and prior incidents of concern. As a result of receiving this assessment, the Ministry arranged for M.J.B. to attend counselling at Catholic Family Services. He attended one session in April 2022 but then refused to attend further sessions.

The Ministry intends to work with the school to have M.J.B. referred to Child and Youth Services for an assessment and counselling and to impress upon E.S.B. the importance of encouraging M.J.B. to participate. [ 93 ] While I have concluded that these reports are not admissible in evidence for the truth of their contents, I find that E.S.B. has worked cooperatively with the Ministry to address the mental well-being of M.J.B. and M.A.B.

Further, the Ministry has undertaken to assist E.S.B. through supports and services as she and her grandchildren may require. [ 94 ] The children’s emotional well-being is also served by their having a continuing relationship with their mother in a stable environment. The evidence indicates that E.S.B. encourages her grandchildren’s relationship with their mother through regular

visits and provides opportunities for contact with their other siblings and aunts. The children’s cultural and spiritual heritage and upbringing [ 95 ] E.S.B. is a member of the Cote First Nation, as are M.A.B. and M.J.B. E.S.B. does not engage in many indigenous cultural practices but she supports her grandchildren learning about their culture if they are interested and she has attended some events, such as Powwows, with them.

On behalf of the Cote First Nation, the YTCCFS has indicated in this proceeding its support for a long-term wardship order for M.A.B. and M.J.B. [ 96 ] A long-term placement order with E.S.B. is consistent with this factor. The home environment proposed to be provided for the children [ 97 ] According to the Extended Family Assessment Report dated July 28, 2020, E.S.B. moved houses in September 2019 because of her desire to provide an adequate home for the children and her concerns about the safety of the neighbourhood.

A social worker who visited the new home in March 2020 found that it was clean, well-maintained, and free from alcohol and drugs. M.A.B. and M.J.B. had their own bedrooms, although for a time M.A.B. shared a bedroom with her sister. [ 98 ] During the COVID-19 pandemic, when the children were not attending school in person, E.S.B. tried to find alternate activities for them. She encouraged her grandchildren to play at a nearby park and taught them to plant a garden and to cook. The home environment provided by E.S.B. for her grandchildren is stable and nurturing.

The plans, with respect to the care of the children, of the person to whom it is proposed that the custody of the child be entrusted [ 99 ] At the date of the child protection hearing, E.S.B. was about 73 years old and had some health conditions, which appear to be well-managed. Over several years, E.S.B. has shown that she is up to the task of caring for her grandchildren. She also benefits from the occasional assistance of one of her daughters. Her intention is to care for her grandchildren for so long as her health allows.

If practicable, the child’s wishes, having regard to the age and level of the child’s development [ 100 ] The court has not heard directly from M.A.B. and M.J.B. At one pre-trial conference, counsel appointed by the Public Guardian and Trustee to represent the children expressed their preference to return to their mother’s custody, while maintaining their relationship with their grandmother. While this is not possible, it is positive that E.S.B. routinely facilitates visits between her daughter and grandchildren.

The importance of continuity in the children’s care and the possible effect on the children of disruption of that continuity [ 101 ] All counsel at the hearing agreed that that the consent order would best ensure stability for the children. M.A.B. and M.J.B. have been in their grandmother’s care since May 2019. They appear to have benefitted from the routine, rules, and gentle discipline that she has provided. It seems obvious that maintaining the current status quo serves the children’s best interests.

The effect on the children of a delay in making a decision. [ 102 ] M.A.B. and M.J.B. were apprehended by the Ministry on May 2, 2019. The Megaw Order was made on April 21, 2020, and the Ministry’s application for a permanent order under s. 38 of the CFSA was filed on August 21, 2020. Considerable time passed before the Ministry’s application was heard by the court in December 2022. Delay is not a significant factor in this case since the grandchildren have remained in E.S.B.’s care throughout. Nevertheless, continuing uncertainty about their status cannot be beneficial.

Conclusion on the children’s best interests [ 103 ] I am satisfied that the best interests of M.A.B. and M.J.B. are served by making an order that they should remain in the custody of their grandmother indefinitely. The conditions in the proposed consent order are also appropriate. Order [ 104 ] For the foregoing reasons, I make the following orders: (

a) M.A.B. and M.J.B. are in need of protection, pursuant to s. 11 (

a) of the CFSA ; (

b) Pursuant to s. 23(1) (

a) of the CFSA , E.S.B. is designated a person having sufficient interest regarding the children M.A.B. and M.J.B.; (

c) Pursuant to s. 23(3) of the CFSA , any notices to be served in relation to M.A.B. and M.J.B. shall be served on E.S.B.; (

d) Pursuant to s. 37(1) (

b) of the CFSA , the children shall remain in the care and custody of E.S.B. as a person of sufficient interest on an indefinite basis and subject to the following conditions pursuant to s. 37(5) of the CFSA : (

i) E.S.B. shall not return the children to the care and custody of K.L.B. and/or D.R. without the advance approval of the

Ministry or an order of the court; (ii) K.L.B. shall have reasonable access to the children as may be arranged with E.S.B.; and (iii) Within six months of this order, the Ministry, K.L.B., and E.S.B. will review and fully discuss the current circumstances of the children and K.L.B.’s compliance with these conditions. J. P.T. BERGBUSCH