P.H. v. Nova Scotia (Community Services), 2013 NSCA 21

NOVA SCOTIA COURT OF APPEAL Citation: P.H. v. Nova Scotia (Community Services) , 2013 NSCA 21 Date: 20130211 Docket: CA 411685 Registry: Halifax Between: P.H. Appellant v. Minister of Community Services and R.W. Respondents Editorial Notice Identifying information has been removed from this electronic version of the judgment. Publication Ban: pursuant to s. 94(1) of the Children and Family Services Act Judge: The Honourable Justice David P.S. Farrar Motion Heard: February 7, 2013, in Halifax, Nova Scotia, in Chambers Held: Motion granted, in part. Counsel: Donna D.

Franey and Heather McNeill, Q.C., for the appellant Peter C. McVey, for the respondent Minister of Community Services Respondent, R.W. not appearing Restriction on publication:

Publishers of this case please take note that s. 94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication. Section 94(1) provides: “No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or relative of the child.” Decision: [ 1 ] P.H. appeals from the decision of Judge Jean M. Dewolfe of the Family Court placing Ms.

H.’s daughter, C., in the permanent care and custody of the Minister of Community Services and denying access to Ms. H. [ 2 ] The Minister’s plan for C. is to place her in an appropriate adoptive home by the child protection authority in the Mohawk home community of C. and her parents (the Six Nations Band of the Grand River Territory, Province of Ontario). Because C. is a member of the Mohawk First Nations, the Aboriginal Child Welfare Authority, rather than the Minister of Community Services, must place her for adoption, or be asked and decline to place her for adoption, before the Minister may do so. [ 3 ] Ms.

H. applies for a stay of execution of the trial judge’s order. The effect of such a stay would be to maintain access visits for Ms. H. with C. and C. would not be removed from the Province of Nova Scotia and placed into permanent care and custody pending this appeal. For the reasons that follow, I would allow the stay in part. In my view, it is in the child’s best interests that there be no access with her mother pending appeal. However, it is not in the child’s best interests that she be moved from Nova Scotia to Ontario pending appeal.

Background [ 4 ] C. was born in Ontario and is almost 11 years of age (D.O.B. June, 2002) . She is the daughter of Ms. H. and the respondent, R.W. [ 5 ] C.’s contact with children’s services in Ontario commenced at a very early age as a result of a referral regarding Mr. W.’s treatment of Ms. H.’s 11-year-old daughter by a previous relationship, P. P. went to live with Ms. H.’s mother in 2002 and has never returned to Ms. H.’s care. [ 6 ] Attempts were made shortly after C.’s birth to assist Ms. H. and Mr. W. in parenting her. These attempts were not successful.

C. was first apprehended in February, 2003, after the Children’s Aid Society in Brantford, Ontario, received a report that Mr. W. was at Ms. H.’s home. Ms. H. had previously agreed that she would not allow him in the home because of his behavior which was described as threatening and aggressive. C. was eventually returned to the care of Ms. H. under supervision and on conditions that included no access by Mr W. unless agreed to by the CAS Brantford. [ 7 ] On August 5, 2003, C. was re-apprehended for the second time as a result of concerns about Ms. H.’s mental health.

She was returned the following day, after it was confirmed that Ms. H. was engaging in mental health services and treatment. [ 8 ] Later that month C. was apprehended again following a conflict between Mr. W. and Ms. H. in C.’s presence. She was placed in foster care where she remained for approximately one year. In 2004 C. was returned to Ms. H.’s care following her assurances that she and Mr. W. had separated. However, she was re-apprehended for a fourth time in November, 2004, when it appeared that Mr. W. was having contact with Ms.

H. [ 9 ] The Ontario child protection proceedings were dismissed in January of 2005 on the condition that Mr .W. was to have no access to C. for at least five years. [ 10 ] Ms. H. and C. moved to Sackville, Nova Scotia, in May, 2006. In December, 2006, the Sackville office of the Nova Scotia Department of Community Services received a referral that Mr .W. and Ms. H. were living together and that multiple domestic conflicts had occurred. Ms. H. denied contact with Mr .W. However, it was determined that she was in contact with him. The Sackville office sought and received a supervision order in March, 2007. Mr.

W. left the home and agreed not to have unsupervised access to C. [ 11 ] By 2008 it appeared that Ms. H. and Mr. W. were making progress and Mr. W. was permitted to reside with Ms. H. and C. on the understanding that they would continue to engage in services and there would be no domestic violence. [ 12 ] In 2008 the parties re-located to the Truro area. The Truro office of the Department of Community Services (the Agency) became involved with the respondents in February, 2010, when Mr. W. caused a disturbance at C.’s school. [ 13 ] The present proceedings commenced September 18, 2010, when Ms.

H. made a 911 call to report physical and verbal confrontation between herself and Mr. W. It was decided at that time to take C. into care. [ 14 ] An interim order was made by the Family Court on September 29, 2010, placing C. in the temporary care and custody of the Agency which was confirmed on October 21 st , 2010. [ 15 ] A protection finding was made, with Ms.

H.’s consent on December 7, 2010, on the basis that there was a substantial risk to C. that she would suffer physical harm inflicted or caused by the failure of a parent to supervise or protect her adequately; there was a substantial risk that she would suffer emotional harm and that Ms. H. refused or was unavailable to consent to services or treatment to remedy or alleviate the harm; and C. had suffered physical or emotional harm caused by being exposed to repeated domestic violence by or towards Ms. H. and Ms.

H. failed or refused to obtain services or treatment to remedy or alleviate the violence. (See Children and Family Services Act , S.N.S. 1990, c. 5 ( CFSA ), sections 22(2)(b)(

g) and (i)). [ 16 ] On March 7, 2011, the Family Court approved the Agency plan of care dated March 3, 2011, which provided for re-unification of Ms. H. and C. within a 10-week timeframe with no access to Mr .W. except as agreed by the Agency. On March 31, 2011, an access visit was scheduled at Ms. H.’s apartment. She became upset and told C. that her father was there, took her in the bedroom and refused to allow the access supervisor to come in. She later said that this was an “April Fools” joke. [ 17 ] In July, 2011, Ms. H. allowed Mr. W. to stay with her for approximately 12 days. During this time Mr.

W. attended at the Agency’s office during an access visit and caused a disturbance. [ 18 ] On April 4, 2012, the Minister filed a plan of care seeking permanent care with no access for the respondents. The plan was for C. to be returned to the Mohawk First Nations in Ontario where she would be made available for adoption. [ 19 ] The final disposition hearing commenced on April 19, 2012, and continued on July 30, July 31, September 17-18, October 22 and 31 st , 2012. The court heard from 18 witnesses including eight experts, seven social workers and Ms. H.

On December 12, 2012, the family court judge issued a written decision placing C. into the permanent care and custody of the Minister and denying access to Mr. W. and Ms. H. The Order was issued on January 2 nd , 2013, and Ms. H. filed a Notice of Appeal on January 31, 2013. On the same day she filed a motion to stay the order of Judge Dewolfe. [ 20 ] In support of her motion Ms. H. files her own affidavit. In response to the affidavit, the Minister of Community Services has filed the affidavit of Stacey Paupin, C.’s social worker and the expert report of Lisa Richardson, C.’s therapist.

Issue [ 21 ] The issue is whether Ms. H. has established the requirements for a stay.

Analysis [22] The combination of s. 49(3) of the CFSA, s. 41(

e) of the Judicature Act, R.S.N.S. 1989, c. 240 and Rule 90.41(2) of the CivilProcedure Rules permits a single judge of this Court to grant a stay. [23] In Fulton Insurance Agencies Ltd. v. Purdy (1991), (NS CA), 100 N.S.R. (2d) 341 (C.A.) Justice Hallettset out the well-known principles which have governed the exercise of discretion in granting a stay since that decision. A stay may begranted if the applicant shows either (

i) an arguable issue for the appeal; (ii) that there would be irreparable harm from the denial of thestay and that the balance of convenience favours the applicant; or (iii) there are exceptional circumstances. [24] However, in child protection cases, special principles infuse the Fulton test. Justice Fichaud in Nova Scotia (Minister ofCommunity) v. D.M.F., 2004 NSCA 113 reviewed the authorities and summarized the test as follows: 13 Although the Fulton test provides the format for analysis, under s. 2(2) of the Act in a child protection case the overriding factor isalways the best interests of the child.

This reformulates the "irreparable harm" and "balance of convenience" branches of the Fulton test.The standard civil tests of irreparable harm to the applicant and balance of convenience between applicant and respondent are sterile in achild custody case. It is not the irreparable harm to the applicant (whether parent or Agency) or the balance of convenience between thelitigants (parent and Agency) which governs. Rather the focus is on the child. It is highly unlikely that harm to the child would becompensable in money.

So the "irreparable" concept recedes. 14 In B.F., at para. 19, Justice Cromwell summarized the approach: The applicants must show a risk of harm produced by the combination of the continuing in force of the order under appeal and the delayuntil the result of the proposed appeal is known. The risk is that if the stay is withheld, their rights and the interests of the children willbe so impaired by the time of final judgment that it will be too late to afford complete relief. On the other hand, this risk must bebalanced with the risk of harm to the children if the stay is granted.

The risk to be considered is that of harm to the children that couldresult from staying an order that may be affirmed on further review to be both lawful and in their best interests. 15 This perspective also affects the deference which the judge considering a stay application must give to the trial judge's findings.The determination of the child's best interests is a delicate fact-driven balance at the core of the rationale for appellate deference.

Forthese reasons, in B.M.J. at para. 31, Justice Flinn said that the Court of Appeal "shows considerable deference to the decision of a trialjudge in custody matters" and will only interfere if the trial judge has "gone wrong in principle, or has overlooked material evidence."Justice Cromwell noted in B.F. at para. 13 that, because of the need for stability and finality in child custody, generally there must be"circumstances of a 'special and persuasive nature', usually connected to the risk of harm to the children, in order to persuade the court togrant a stay." (Emphasis mine) [25] Therefore, in order to allow the motion, I must be satisfied that the appellant has raised an arguable issue and there arecircumstances of a special and persuasive nature that would warrant a granting of the stay.

Put another way, I would have to be satisfiedthat the circumstances here are such that C.’s best interests would be served by a stay. Application of the Principles [26] The first issue in the Fulton analysis requires that there be an arguable issue raised on appeal. In her Notice of Appeal, Ms. H.raises four grounds of appeal alleging errors in the trial judge’s consideration and application of the factors set out in the CFSA in herdetermination of the best interests of the child. [27] I am satisfied that the grounds of appeal are, at least, arguable. It is not necessary to say anything further on this issue.

Themerits of the appeal will be for the panel. [28] I will now turn to consideration of the irreparable harm and balance of inconvenience test which distills into an analysis ofwhether denial of the stay would harm the child and, if so, whether the stay’s issuance or a denial would better serve, or cause less harmto the child’s interests (Minister of Community Services v. B.F., 2003 NSCA 125, ¶20). [29] In her affidavit, Ms. H. says this in support of continuing access: 7. [C.] and I share a very strong bond and Native heritage as we belong to the Mohawk First Nation. We have a close and lovingrelationship.

I feel it is very important for us to continue to have contact until the appeal is processed. [C.] has a secure attachment to meand time for us to interact with one another is very important to her well being. 8. It has been my experience that while [C.] has been in the Minister’s care, she has had very little access to cultural activities orFirst Nations’ events or the Native culture in general. For the majority of her time in care, her placement has been with a Caucasianfoster family where she continues to be placed.

It is important that she maintain a connection to her culture and this can be accomplishedat the very least through access visits with me until the appeal is complete. 9. Her connection to her Mohawk heritage and culture in the current circumstances is through her interaction with me. The point isnot just that she be exposed to Native culture, but to people that look like her and share a specific heritage in the Mohawk way. I believethe only solid connection to her culture is made through our visits with one another. 10.

I feel it would be very disruptive to [C.], and emotionally harmful, to discontinue our contact prior to the hearing of the appeal. As I understand it, she will be continuing to live in the same foster placement and otherwise continue with her current routine. 11. I feel it would be cruel to cut off our contact and have [C.] go through the grieving process prior to knowing the outcome of the

appeal. If I am successful, [C.] will suffer unnecessarily if access is terminated. 12. At each access visit, [C.] and I would share a meal which is important to our cultural and family values. We also talk, laugh, do activities like puzzles, crafts or reading. I often brushed and put traditional braiding in her hair or painted her nails. Prior to going into care, [C.] was an accomplished Fancy Shawl dancer. I took her dancing Regalia to a visit to share memories of her dancing. She is proud of her dancing and planned to show the Regalia around at her school.

Because of [C.]’s age and close relationship with me, I feel maintaining access which has become a constant in our lives over the last two years is essential. ... 20. Prior to the Permanent Care and Custody Decision, [C.] voiced her wishes to come home to live with me and I am pursuing an appeal to make that a reality for her.

I believe that cutting off our contact with one another will cause more harm to my child than good in the present circumstances. [C.] would not be put at risk if visits were to continue through the appeal period and indeed may be spared significant emotional turmoil. [ 30 ] A review of these paragraphs suggests that the visits between Ms. H. and C. are positive, not disruptive and beneficial to C. However, the affidavit of Ms. Paupin paints an entirely different picture. She outlines in some detail the visits Ms. H. has with C. since the trial judge’s decision. Ms.

Paupin’s description of the visit on December 20 th , 2012, (just after the trial judge’s decision was rendered) is as follows: 41. On December 20, 2012 , [C.] was brought to the Agency offices for an access visit with her mother. 42. During this access visit, the following occurred: (

a) Jennifer Deshaw, a Supervisor, and I spoke with P.H. in advance, stressing that she must avoid discussing adult matters with [C.] or the visit would be ended; (

b) When the visit was ready to begin, P.H. would not enter the access room. She told [C.] to leave the access room and come to her, which [C.] eventually did; (

c) P.H. was crying and informed [C.] that she “could not do this” and “had to go”; (

d) P.H. gave [C.] a bag of Christmas gifts and a ring, hugged and kissed her, and left. [ 31 ] The next access visit occurred on January 3, 2013. Once again Ms. Paupin had this to say about that meeting: 48. The next access visit occurred on January 3, 2013 .

I am informed by Christine Mason, Access Facilitator, and believe to true (sic), that the following occurred during this visit: (a) [P.H.] asked [C.] a series of questions about when she was moving and how many more access visits were scheduled. (b) [P.H.] pointed out to [C.] that she “wouldn’t be getting any more home cooking” as she was not allowed to bring food to the visits; (c) [P.H.] asked [C.] to return the photographs that [C.] had of her mother and father. [C.] said that she wanted to keep them; (d) [P.H.] stated, “they told me that you did not want them”; (e) [P.H.] stated, “you shouldn’t keep pictures of people you do not like or are scared of”; (f) [C.] replied that she had not said that.

P.H., however, informed [C.] that “that’s what your therapist said”; (g) [C.] then attempted to change the subject but her mother told her not to “try and change the subject on me”; (h) [P.H.] continued to ask [C.] about the pictures, and [C.] continued to try to change the subject; (

i) Christine Mason intervened, informing P.H. that she was making [C.] look sad, and the visit should be positive and not make [C.] uncomfortable; (j) [P.H.] said that [C.] used to tell her everything, but it seems like she “does not have any emotions anymore”. [C.] replied that she does (have emotions). 49. The visit continued but [P.H.] returned to the topic of the family photographs she wished her daughter to return to her. Christine Mason then interrupted the access visit and brought [C.] to my office, explaining what was happening. 50.

I asked [C.] how she felt about the pictures, and she informed me that she wanted to keep them “to remember” her mother and father. I returned to the Access Room to speak with [P.H.]. 51. [P.H.] repeated to me, “why would she want to keep pictures of people she is scared of and doesn’t like?”, referring, I believe, to some of the evidence [P.H.] heard at the Trial of this matter. 52.

I explained to [P.H.] why her daughter may wish to retain pictures of her family. [P.H.] replied, “why does she want to keep pictures of people she is never going to see again?” [ 32 ] The next two visits were on January 10 th , 2013 and January 17 th , 2013. Ms. Paupin’s descriptions of those meetings and the

aftermath of them are as follows: 56. On January 10, 2013 , the next access visit was held for [C.] with [P.H.] I am informed by Carole Carter, Access Facilitator, and believe to be true, that the following occurred during this visit: (

a) For the most part, [P.H.] was appropriate in her interactions with [C.]; (

b) However, part way through the visit, [P.H.] began to ask [C.] when she was moving, and if anyone had spoken to her about moving; (c) [P.H.] also stated to [C.], the following; (i) “A lot of people don’t agree with this” (the move); (ii) “They said I beat you. Did I beat you?” (iii) ([C.] replied, “no”); (iv) “Maybe I should have, then they would have had a good reason to take you.” (v) “Have you been talking to Lisa [Richardson] about separation?” (vi) ([C.] replied that she, “did not know”); (vii) “You do know, you just don’t want me to know.” 57.

The next access visit was held on January 17, 2013 , supervised again by Christine Mason.

I am informed by Christine Mason, and believe to be true, that the following occurred during this access visit: (a) [P.H.] asked [C.] to “bring me your [traditional dance] Regalia” so “I can keep it for you”; (b) [C.] replied that it was hers and she wished to keep it herself; (c) [P.H.] said to [C.], “you will probably never see us again”; (d) [P.H.] asked [C.] if she was “going through the grieving process”. [C.] said she did not know what that meant. (e) [P.H.] explained that “you do it when people die”; (f) [P.H.] told [C.] that she would have to do this because “we are dead to you”, and you need to grieve and move on; (g) [P.H.] told [C.] that she had to look at it as if they (her parents) are dead. [C.] replied that they (her parents) are not dead; (h) [P.H.] persisted and told [C.] she had to “close her eyes and picture me and your dad in a box with our arms crossed”; (

i) Christine Mason observed [C.] to look sad and confused by her mother’s statements. She interrupted, telling [P.H.] to change the subject; (j) [C.] then also attempted to discuss other matters, such as her school and the sports she is involved in; (k) [P.H.], however, then began to ask [C.] if she is “getting ready to move to Ontario”; (l) [P.H.] asked [C.] if she has talked to her therapist (Lisa Richardson) about going to Ontario; (

m) Christine Mason advises me that [C.] kept trying to change the subject, but [P.H.] continued to ask [C.] such questions; (

n) Christine Mason then took [C.] to my office. 58. I first spoke with Christine Mason, who described what was happening in the access visit and what [P.H.] had said. I then asked [C.] what she wished to do now. [C.] told me she wished to end the access visit with her mother. [C.] stated to me that she did not want to go back in the access room. I told her to stay in my office with Christine Mason and I would go and talk with her mother. 59.

I went to the Access Room and spoke with [P.H.], as follows: (a) [P.H.] defended her statements to her daughter, saying she “was just trying to help her deal with grief”; (b) [P.H.] repeated to me that [C.] was “better off” thinking they were “dead” because she would “never see us again”; (

c) I explained to [P.H.] that this was an unacceptable way to discuss these issues with her ten year old daughter and it made [C.] uncomfortable; (d) [P.H.] replied that [C.] “needs to deal with it”; (

e) I explained to [P.H.] that [C.] would go through the process of grieving and loss in therapy; (

f) We then discussed other issues, such as activities I suggested they engage in during visits;

(g) [P.H.], however, repeated her belief that [C.] needs to think of her parents as “dead”; (

h) I made the decision that the visit would end and not resume; (i) [P.H.] asked me if she could say “goodbye” to [C.], which I agreed to allow; (

j) I had [C.] return to the Access Room, say “goodbye” to her mother, and then leave the room again. 60. After [P.H.] left the Agency Office, I went to meet further with [C.]. 61. I observed that [C.] had tears in her eyes while we spoke. I asked [C.] how she was feeling. [C.] stated that she “does not know why” her mother “does this”. 62. On January 17, 2013, following the visit, [C.] asked me if she could meet less frequently with her mother (every other week, rather than every week). I said to [C.] that I thought this was a good idea. [ 33 ] The last access visit occurred on January 31, 2013.

It is described as follows: 67. The next access visit occurred on January 31, 2013 .

I am informed by Christine Mason, Access Facilitator, and believe to be true, that the following occurred during the visit: (a) [P.H.] told [C.] that she believed [C.] had been losing weight, and that she planned to bring a scale to the next visit and weigh her; (b) [C.] replied that she did not believe she had been losing weight and eats “a lot more now”; (c) [P.H.] said that [C.]’s pants looked “baggy” on her now, contrasting this with how “cute” she looked when she lived at home; (d) [P.H.] also criticized [C.]’s boot (“How do you walk in those stupid things?”), to which [C.] replied, “Good”; (e) [P.H.] informed [C.] that she was making plans to “get her back” (return her to her mother’s care); (f) [P.H.] told her daughter stories about how disrespectful she ([P.H.]) was when she was in school, how she didn’t listen to her teachers, left school grounds, went to the Mall to steal clothes, and how she “used to get drunk”; (

g) While playing with a ball on a string, [C.] almost hit her mother. [C.] said she was “sorry” and sat quietly, “with a sad look on her face”; (h) [P.H.] asked [C.] if she would like to end the visit early; (

i) When [C.] said “No”, [P.H.] replied, “Why not, you did it at the last visit?” (As noted above, I had decided to end the last visit); (

j) Christine Mason noted that [C.] then looked “like she was going to cry”. [P.H.] was then physically affectionate with [C.]; (

k) However, immediately after this incident, [P.H.] asked [C.] whether she “got yelled at or hit [in her foster home] when she does something wrong”. [C.] said that she did not; (i) [P.H.] replied, “Nobody has since you moved away from [R.]”, referring to a former foster mother of the child. [ 34 ] There have been no access visits since that time. [ 35 ] I accept the evidence of Ms. Paupin as to what occurred during those access visits. As can be seen from these excerpts from her affidavit, the conduct of Ms. H. during her access visits is totally inappropriate and harmful to the child.

Being disrespectful to Agency employees, criticizing her daughter’s clothing, asking her daughter to picture her and her father dead, discussing adult issues after being repeatedly told not to do so are all inappropriate. In my view, a continuation of these visits is not in the best interests of C. Further evidence of this is found in Ms. Paupin’s consultation with C.’s foster mother which she describes in her affidavit as follows: 81. On January 23, 2013 , I also consulted with [C.]’s foster mother , for a description of [C.]’s emotional presentation around the time of access visits.

I am informed by [C.]’s foster mother, and believe to be true, the following: (a) [C.] appeared “more upset” after the last access visit (January 17, 2013) than she had on the previous visit (January 10, 2013); (b) [C.] presented as “very quiet” following the visit, appearing as if thinking about something; (c) [C.] did talk to her foster parents about the visit following the foster family dinner that night (January 17, 2013); (d) [C.] said then that her mother could be “terrible and mean”; (e) [C.] said to the foster father that not even he could spend ten minutes in a room with her mother without crying; (f) [C.] stated to her foster mother that the visits would be less frequent. [ 36 ] And Ms.

Paupin’s discussion with C. herself: 85. On January 25, 2013 , I also spoke with [C.] about access visits with her mother. During our conversation, the following was discussed:

(

a) I asked [C.] how the access visits made her feel; (b) [C.] informed me that she had been “sad” lately, because her mother is “mean”; (c) [C.] repeated to me what I am informed she has also said to others (“she is so mean that anyone who spent 10 minutes in a room with her would come out crying”); (d) [C.] said she did not like it when her mother behaves like that, and does not like it that her mother “will not listen to anyone”; (e) [C.] said again that she wished the visits were less frequent, because she “can’t deal with [her] mother”, “how she makes me feel”, and “never knowing what she’s going to say”; (f) [C.] told me that she wants to keep the pictures of her family and knows that they are still alive. [ 37 ] Finally, I have the report of Lisa Richardson, C.’s therapist.

Ms. Richardson was qualified by Judge Dewolfe to give expert testimony “as a social worker with expertise in the area of providing counselling or therapy services for children”. Ms. Richardson’s report is relatively brief and I will set it out in some detail: ...While [C.] found the waiting period for the court decision a stressful process, she had managed to maintain a healthy level of functioning up until the first access contact between she and her Mother after Ms. [H.] had been aware of the permanent care and custody decision.

From this point on, I noticed an increase in [C.]’s anxious behavior (ie stuttering, worrying and emotional reactivity). [C.] reported several occasions where comments made by her mother during access visits had “upset her”. For example: her mother telling her to picture her parents in a box with their arms crossed and think of them as “dead”. It took several minutes for [C.] to share this with me as her stutter greatly interrupted her speech. Although I was aware [C.] used to have problems with stuttering, this was the first time I had ever observed it within our therapy sessions.

This speech difficulty has become an ongoing issue over the last several weeks, and is isolated to times when [C.] discusses access visits with her mother. During our most recent session, [C.] shared that she worries about attending upcoming access visits as she is never sure what her mother is going to say. She said she feels responsible for her mother’s behavior and tries to change the subject when she realizes her mother is being inappropriate.

We have discussed that this is not [C.]’s responsibility and that this is up to the worker’s supervising the visit. [C.] said that her social worker Stacey had asked her if she would like me to attend access visits with her. [C.] said she told her she would like me to come to visits but thought it would be better if I didn’t. When I asked her why she stated, “even you would cry Lisa if you were in a room with my mother for 10 minutes. She says really mean things. I’m used to it.

You’re not.” Conclusion Throughout my interactions with [C.] it has become apparent that the most recent access visits are causing her undo emotional distress. I have been made aware that Ms. [H.] has made an appeal application of the permanent care and custody decision. It is my opinion that access contact past the final visit on Feb 7/13 would not be in the best interests of [C.]. ... [ 38 ] Ms. Richardson’s report is graphic and disconcerting. It makes clear that which is apparent from Ms. Paupin’s affidavit; continued access between C. and Ms.

H. pending this appeal would be harmful to C. and is not in her best interests. [ 39 ] Ms. H.’s inappropriate conduct during access visits is not recent, it is longstanding. The trial judge also expressed concerns about Ms. H.’s conduct during access visits. I will reference some of the excerpts from the evidence cited in the trial judge’s decision when referring to Ms. H.’s own testimony: On cross-examination she maintained that she does what is “right” for her and her family. She described her continued references to Mr. W. during her access with C. as her attempt to keep a connection between C. and her father.

She did not accept Ms. Richardson’s view that this makes C. uncomfortable. Ms. H. stated that she cannot “force” C. to see Mr .W. but was unsure as to what her response would be if C. wanted to see him. Ms. H. continues to minimize and blame others, most notably the various agencies with which have been involved, for the chaos in C.’s life. She maintains the Ontario Agency did not treat Mr .W. fairly and excuses his behaviour by indicating he has trouble with authority.

Her account of events which led to C.’s five apprehensions and lengthy periods of Agency involvement under supervision orders does not acknowledge her failure to protect C. It is clear from her testimony that she is still resistant to authority and will follow her own moral compass in the face of any Court order or agreement . (Emphasis mine) Ms. H. admits that she does not trust or respect the opinions of Agency representatives or Agency paid service providers. ... ...In the current matter before this Court, this approach is exemplified by Ms.

H.’s initial refusal to even discuss the need for Agency involvement, her reluctance to engage with Agency workers in creating and committing to a safety plan, the “April Fools” fiasco, and her continued insistence on inappropriate and anxiety-causing behaviour and conversations during access . (Emphasis mine) [ 40 ] In light of the longstanding and continuing issues with Ms.

H.’s conduct during access visits with C., it is not in the best interests of the child to continue those access visits beyond the visit now scheduled for February 12 th . (The February 7 th visit referred to in Lisa Richardson’s report was postponed because of this motion.) I would dismiss the motion to stay the portion of the order denying access. Removal from the Province [ 41 ] The Agency’s plan for permanent care has C. being removed from the Province and returning to the Mohawk First Nations in Ontario.

[ 42 ] At the stay hearing I asked counsel for the Minister whether the Minister would undertake to not remove C. from the province pending the appeal in this matter. Counsel could not give that undertaking. He suggested I take the approach of Cromwell, J.A. (as he was then) in B.F. , supra . In B.F. , Justice Cromwell explained the Minister’s proposal: [32] Counsel for the Minister advised during the hearing that there is no intention to remove the children from the applicants' care until a suitable foster placement is found for them.

What is being sought is a placement (or perhaps, if necessary, placements) in which the children can be kept together (or at least in very close proximity to each other) and in reasonably close proximity to their parents so as to facilitate ongoing contact with them.

This will make it certain, it is submitted, that the children will receive the sort of care and services they need while not severing contact with their parents and each other. [ 43 ] As can be seen from this passage, the Minister’s plan in B.F. did not involve removing the children from Nova Scotia; instead, it involved placing them in foster homes as close to the parents as possible.

While Justice Cromwell refused to grant the stay, he imposed conditions on the order to ensure that the Minister followed this plan, giving the parents a chance to re-apply for a stay if that did not happen: [35] I am sensitive to the pressures of time and resources on the respondent as well as the need to respond flexibly and promptly to the needs of the children in light of the available placement options. I have no wish to attempt to "micro-manage" the discharge of the respondent's statutory duties.

However, it is appropriate for me to do what reasonably can be done to assure that the basis on which I have exercised my authority and responsibility in relation to these children, their parents and the community reflects the actual situation of the children. [36] I, therefore, will dismiss the stay application, but on the following conditions.

Before moving to enforce the order of this Court granting permanent care and custody of the children to the respondent, the respondent shall give reasonable notice of the particulars of the intended placement of the children upon their removal from the applicants' care and custody . I intend the term "reasonable" in this context to mean such notice as can be given taking into account the exigencies of obtaining placements.

On receipt of such notice, the applicants shall be at liberty to apply again for a stay of proceedings if the intended placement differs in significant respects from that outlined in the course of submissions to me by counsel for the Minister and summarized earlier in my reasons .

Such application, if any, must be made within 48 hours of receipt of the notice and be made returnable before a judge of this Court at the first possible opportunity bearing in mind the discretion of the Court to abridge the usual periods for service of notice. (Emphasis mine) [ 44 ] The Minister’s counsel suggests that I could dismiss the stay on similar conditions. I presume this to mean that I could require the Minister give “reasonable notice” to Ms. H. if an appropriate placement in Ontario arose and the Minister planned to move the child there before the appeal could be determined.

As a corollary to that condition, I could permit the mother to return to Chambers and make another stay motion.

The result of such conditions could result in the same issue being re-litigated in another stay motion between now and the date of the decision. [ 45 ] I see no reason to do so nor do I see any benefit in subjecting this child to yet another court proceeding. [ 46 ] I am prepared to grant the stay which would prevent the Minister from removing C. from Nova Scotia pending the determination of this appeal. [ 47 ] In my view, given C.’s current situation, she is in a stable foster home and is doing very well in school, the disruption caused by removing her from Nova Scotia may have devastating consequences.

Should a stay be refused and Ms. H.’s appeal is ultimately successful, C. may suffer irreparable harm. One can only envision the scenario where C. would be removed from her present foster home and school, moved to Ontario, and placed in another foster home and school pending adoption. If Ms. H. is successful on her appeal, it would mean that the disruption would revisit itself. She would again be uprooted and transitioned back to Nova Scotia. This potential disruption cannot be said to be in the best interests of the child. [ 48 ] I am aware that Ms.

Paupin has spoken with a social worker with the Six Nations Band, in the Province of Ontario with respect to the Minister’s plan for C. Ms. Paupin informed the social worker that C. wished to remain in her current foster home for a period of time. As previously noted, the adoption process for Mohawk children is with the Aboriginal Child Welfare Authority. Ms. Paupin was informed that C.’s request would be discussed and that she thought she could stay in Nova Scotia until the end of the school year at least, but no assurances were given.

I want to give C. the assurance that she will remain in her stable environment, at least, until the disposition of this appeal. [ 49 ] Therefore, to ensure that C. remains in Nova Scotia, I would grant a partial stay preventing the Minister of Community Services from transitioning C. to the Aboriginal Child Welfare Authority in Ontario until the disposition of this appeal. Conclusion [ 50 ] The stay of the Order of the trial judge denying access to Ms. H. is dismissed.

A stay preventing C. from being transitioned to the Aboriginal Child Welfare Authority in Ontario pending the determination of the appeal in this matter is granted. Farrar, J.A.