S.A.D. v. Nova Scotia (Community Services), 2014 NSCA 77

NOVA SCOTIA COURT OF APPEAL Citation: S.A.D. v. Nova Scotia (Community Services) 2014 NSCA 77 Date: 20140801 Docket: CA 422799 Registry: Halifax Between: S.A.D. Appellant v. Minister of Community Services, A.G.M., C.E.M., C.I.A.M., by their guardian ad litem , Valorie Rule Respondents Restriction on Publication: s. 94(1) of Children and Family Services Act Judges: Fichaud, Beveridge and Scanlan, JJ.A. Appeal Heard: May 16, 2014 in Halifax, Nova Scotia Subject: Child protection - Children and Family Services Act

Summary: The Family Court ordered that three children be in the permanent care and custody of the Minister of Community Services, without access, because of the risk that the children would be exposed to violence in the home. The mother appealed. Issue: Did the Family Court judge commit an appealable error? Result: The Court of Appeal dismissed the appeal. The projection of future risk to the children was an issue of fact. There was substantial evidence to support the trial judge’s view that the cycle of violence would recur, and that exposure to recurring violence was contrary to the children’s best interests. The judge committed no palpable and overriding error of fact and no error of law.

This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 45 pages. Nova Scotia Court of Appeal Citation: S.A.D. v. Nova Scotia (Community Services) , 2014 NSCA 77 Date: 20140801 Docket: CA 422799 Registry: Halifax Between: S.A.D. Appellant v.

Minister of Community Services, A.G.M., C.E.M., C.I.A.M. by their Guardian ad Litem, Valorie Rule Respondent Restriction on Publication: 94(1) Children and Family Services Act Editorial Notice: Identifying information has been removed from this electronic version of the judgment. Judges: Fichaud, Beveridge and Scanlan, JJ.A. Appeal Heard: May 16, 2014 in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Fichaud, J.A. ; Beveridge and Scanlan, JJ.A. concurring Counsel: Roseanne M. Skoke, for the appellant Peter C.

McVey and Cory Roberts, for the respondent Minister of Community Services Lisa Bevin, for the respondent A.G.M. (not appearing) Alain Bégin, for the respondent Guardian Ad Litem V.R. Edward Gores, Q.C., for the respondent Attorney General of Nova Scotia Restriction on publication: Pursuant to s. 94(1) Children and Family Services Act , S.N.S. 1990, c. 5. 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.

94(1) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or a relative of the child. Reasons for Judgment: [ 1 ] In

summary: • In 2006, the Minister of Community Services began proceedings to protect two young children from family violence. The father had beaten the mother in the home, not for the first time. He has explosive anger disorder and a drug habit. • After a period of interim temporary care by the Minister, the children returned to the mother under supervision with services and conditions. A year later the mother deposed that her relationship with the father was “permanently severed”.

So the court terminated the protection proceeding, gave sole custody to the mother and prohibited the father from contacting the children. • The couple nonetheless resumed cohabitation, with the children, and a third child was born in July 2011. More family violence led to another child protection proceeding in early 2012. Initially there was a supervision order with targeted services. The father was not to have unsupervised contact with the children and was not to be in the mother’s home. • In July 2012, the teenaged oldest son, emulating his father, beat the mother while she was holding the baby.

The three children again were taken into care, and services continued. • In 2013, the father again was staying regularly at the mother’s home, the mother lied to the Minister’s staff about his presence, the father was found by the police hiding in a crawl space in the mother’s home, the mother mistreated her children during a tumultuous access visit, and several times the mother tested positive for cannabis. • In July 2013, the father again assaulted the mother at the mother’s home. • There was a Disposition Hearing in September and October 2013, with five days of testimony.

A focus of the evidence was the mother’s proclivity to allow the father to return, despite his inveterate violent behaviour. The judge of the Family Court ordered that the three children be placed in the permanent care and custody of the Minister without access. In his view, leaving the children with the mother likely would expose the children to further violence, contrary to their best interests. • The mother appeals. [ 2 ] This appeal turns on an issue of fact.

The trial judge foresaw that, as had occurred often before, the mother and the father likely would resume what the judge found to be their “very enmeshed and complicated relationship”, and reinstitute what the judge found to be a “recurring cycle” of exposure to domestic violence that has wounded these children. In my view, the judge made no palpable and overriding error of fact. 1. Background [ 3 ] The Appellant S.A.D. is the mother, and the Respondent A.G.M. is the father of three sons. C.A.M. was born on September …], 1998, C.E.M. on August […], 2005 and C.I.A.M. on July […], 2011.

The boys were fifteen, eight and two years of age when the judge issued the decision for permanent care and custody in October 2013.

To lessen the distraction of initialization, I will refer to them as the mother and father, and the oldest, middle and youngest children. [ 4 ] To grasp the judge’s appraisal of the risks facing these children, one has to appreciate the ingrained familial dynamics, going back many years. [ 5 ] On January 27, 2006, while living in Antigonish, the children were taken into care by the Minister. [ 6 ] The protection worker’s affidavit for this event recited the events and observations from his visits to the mother’s trailer, on January 24, 2006 and later that week.

The visits followed an RCMP referral of family violence. The affidavit cited another episode, in 2005, of the father’s assault against the mother for which the father was convicted and still on probation. The mother’s testimony at the later (October 2013) Disposition Hearing confirmed those facts. On January 24, 2006, the mother had recent facial injuries. The mother recited how the father had beaten her while the infant (the middle child) was in the home. The mother said that the couple had separated many times before. But their separations never stuck.

The father would return, she would take him in, and he would stay over at her home several times a week. She said he had a violent temper, and often demanded money for his drug habit, which led to arguments. She said she used marijuana. The mother declined to go to the police detachment to give a statement about the assault.

She said that the father was a “good parent”, that she wanted their relationship to work, and perhaps the couple needed counselling. [ 7 ] On February 2, 2006, Judge James Wilson of the Family Court issued an Interim Order that there were reasonable and probable grounds to believe the two children were in need of protective services and that their health and safety could not be protected other than by taking them into care, and that the Minister have their temporary care and custody with supervised access. [ 8 ] The children stayed in the Minister’s interim care until the protection hearing on March 28, 2006.

[ 9 ] On March 28, 2006, after hearing counsel for the Minister, mother and father, Judge Wilson ordered that the two children were in need of protection under ss. 22(1) and (2) (b), (f), (

g) and (

i) of the Children and Family Services Act , S.N.S. 1990, c. 5, as amended (“ CFSA ”). These provisions respectively refer to (1) “substantial risk” – defined as a “real chance of danger that is apparent on the evidence” – that the child will suffer physical harm, (2) actual emotional harm that the parent has been unable to alleviate, (3) a substantial risk of future emotional harm, and (4) an actual mental, emotional or developmental condition that could impair the child’s development and that the parent has not been able to alleviate. The Order placed the children in the mother’s care, with Agency ( i.e.

Department of Community Services) supervision and conditions. The conditions included (1) that the mother “shall have no contact with [the father] and immediately report to the Agency and police if any attempts of contact are made by [the father]”, and (2) “the Respondents shall abstain from alcohol and illegal drug use”. [ 10 ] The Order of March 28, 2006 also directed the mother and father to participate in the services stated in the Minister’s Plan of Care.

These services included (1) meetings with a Child Protection Social Worker, (2) weekly supervised access visits with the father managed by an Access Facilitator, (3) parental skills education presented by the Agency’s Family Skills Workers, (4) participation in “New Leaf” (family violence programming for the father), (5) participation in the Naomi Society’s domestic violence counselling for women and children who are victims of family violence and (6) access to psychiatric counselling at St.

Martha’s Hospital in Antigonish. [ 11 ] After review hearings, Judge Wilson repeated these terms in Supervision Orders dated June 6, September 5 and December 5, 2006 and January 30, 2007. Services continued. [ 12 ] In March 2007, the Minister agreed to terminate the child protection proceeding, to be replaced by an Order under the Maintenance and Custody Act , R.S.N.S. 1989, c. 160, as amended, that the mother have sole custody of the children.

For this hearing, the mother filed an affidavit of March 6, 2007, stating that “[the father] and I no longer reside in the same household and that we permanently severed our relationship”, and “the cessation of my relationship with [the father] has removed any possibility of harm or potential harm being caused to the children”. [ 13 ] Relying on the mother’s assertion, on March 6, 2007, Judge Wilson issued an Order dismissing the protection proceeding.

On May 22, 2007, Judge Wilson followed with an Order that the mother have sole custody of the two children and that “the Respondent [the father] shall have no access or contact with the children whatsoever unless otherwise ordered by a Court”. [ 14 ] Despite her Affidavit and the Order, the mother and father reunited, lived at her home, the father re-entered the children’s lives, a third child was born in July 2011, and violence returned to the home. [ 15 ] By early 2012, the oldest child, now teenaged, was the focus of violence in the home, leading the Minister to commence a new protection proceeding.

The Affidavit of February 13, 2012 by the responsible Case Worker, Diane Chisholm, described the events of the previous three weeks learned from her interviews with the police, school officials, the mother, oldest son and middle son: • On January 22, 2012, there was a police referral to the Agency. • The oldest son reported to the RCMP that his mother had “punched him in the face”, that, a week or two before, the mother “had punched him in the face two or three times”, and that “they fight all the time, yelling at each other”.

The school principal said that the oldest child had presented with a “scratch mark by his eye which he alleged was from his mother hitting him”, and that the middle son “saw the fight happening”. The oldest son told the Case Worker that the oldest son “swore at her [his mother] and she pinned him on the floor by putting her knees on his arms – she was hitting his face with both hands”, and “[t]hat he hit her back a few times”. He said “his brothers were in the living room while his mother and he were fighting in the kitchen – they would have heard the fight”.

The Case Worker attested “I observed a scratch by the corner of [the oldest son]’s left eye and a slight scar on his cheek which he said was caused by his mother’s nails when she hit his face last year”. • The mother denied that she hit her oldest son. She said her oldest son “has anger issues which seem to come out after he talks with his father”. She said the oldest son “was lying and that she had not hit him, that he had been hitting her”.

The mother said that the oldest son “had punched himself in the eye and that she had called Mental Health Services because ‘we might have to rush [the oldest son] up there because he’s harmful to himself and harmful to his brothers’ ”. • The oldest son said “his father lives nearby but his parents had split up about 2 months ago”, and that “before they broke up they were fighting all the time – they would hit each other, usually his mom would hit first”.

He said “he saw his parents hit each other – Mom would hit first with a frying pan or anything she could get her hands on, Dad would hit her back and then leave”. • The middle son said “their dad would push mom around and that made [the middle son] feel bad inside”, and that the oldest son “had hit his mom in the head with a pan”. • The police officer reported that he observed the oldest son “punching the walls, screaming and cursing” and that a neighbour’s complaint alleged that the oldest son “had been banging at the neighbour’s door, yelling and screaming”. [ 16 ] On February 7, 2012, the mother signed a Memorandum of Understanding with the Agency, stating the terms of her supervised care of the children.

These terms were expressed to be “in order to prevent physical or emotional conflict from occurring in my home”.

The terms included: (1) allowing the oldest son to have a time out in his room or to go for a walk to cool off, (2) if conflict is imminent, asking a friend to come over to defuse the conflict, (3) refraining from engaging in physical conflict, yelling, swearing or name calling with the oldest son, (4) calling 911 if there are signs of imminent conflict, (5) calling 911 “immediately should [the father] come to my home”, (6) attending at the services arranged by the Agency including Mental Health counselling at St.

Martha’s Hospital, abuse counselling at the Naomi Society, and parenting services. [ 17 ] In February 2012, Judge Wilson issued an Interim Order that: (1) there were reasonable grounds to believe that the three children were in need of protection under ss. 22(2) (b), (

g) and (

i) of the CFSA , (2) the children remain in the mother’s care with Agency supervision, (3) the mother participate in the services offered by the Agency (including assessment, treatment and counselling), (4) there be no physical punishment or verbal abuse of the children, (5) the mother shall abstain from using alcohol and non-prescribed drugs, and

(6) the father not be at the children’s home or schools. [ 18 ] The services began in February 2012.

According to the Agency’s Case Plan Document, signed by the mother, these included (1) meetings with the Naomi Society “to address the concerns and impacts of domestic violence on herself and her children”, (2) attendance by the middle son at sessions entitled “Children Who Witness Domestic Violence” at the Naomi Society; (3) counselling by the mother and oldest son with a clinical therapist Gary Neufeld, respecting “the impacts of unhealthy relationships, risk to herself, children and the cycle of violence”; (4) the father’s attendance at the New Leaf Program on a regular basis; (5) regular conferences with the Agency’s Case Worker; and (6) “financial support may be provided and assessed as required”.

The Agency paid for many of the mother’s taxi trips to access services. [ 19 ] The later Parental Capacity Assessment Report (below, paras 36 ff.), prepared by Elaine Boyd-Wilcox, a psychologist, noted the following events in the chronology: On February 2, 2012 staff from [the oldest child]’s school reported that [the mother] had called and rudely demanded to speak with [the oldest child]. He had disclosed that there had been an argument the previous evening during which [the mother] hit him in the face and threw him on the floor causing him to hit his head. He had a scratch on his face.

When interviewed [the oldest child] described his mother throwing him to the floor and hitting him. He admitted that he hit her back and left and went to a neighbour’s. [The oldest son] also disclosed that his father had been living with them until just before Christmas. He said his father and mother fought physically and that his mother would hit his father first. [The middle child] (age 6) who [the oldest child] said was present during the altercation with his mother was interviewed but could not provide clear details about the fight between the mother and [the oldest child].

He disclosed that he had seen [the father] pushing [the mother] around and that making him feel bad. … On March 12 2012 there was a referral from the RCMP stating that they had been called to [the mother]’s residence twice in the previous two weeks because of [the oldest son] hitting [the mother] (first with his fist and the second time with a hockey stick; he also broke a window) The same day a second call was received from RCMP who were at [the mother]’s residence at the time. The officer reported that he had been there the previous day as well.

He indicated that [the mother] had called police because [the oldest son] was in the bathroom with some glass and she was afraid he might harm himself. When the social worker attended the home she learned that a friend of [the mother]’s had reported an incident involving a knife had also taken place. [The oldest son] wanted to go to his father’s home but that was not supported because of the Court Order so it was eventually arranged that he stay with a family friend. The next day [the mother] reported [the oldest son] wanted to return home. [ 20 ] In May 2012, Judge Wilson issued a Protection Order.

The Order recited that the Minister, mother and father had been represented by counsel, and that the parties consented to the terms of the Order. The Order included: (1) a finding that the three children were in need of protection under ss. 22(2) (b), (

g) and (

i) of the CFSA (substantial risk of physical harm and emotional harm, and actual emotional harm from exposure to domestic violence); (2) the children shall remain in the mother’s care, with Agency supervision; (3) the father may have supervised access but “shall not attend at or around the childrens’ home or schools”; (4) there shall be no physical punishment, verbal abuse, derogatory names or profanity toward the children; (5) the mother “shall abstain from using alcohol and non-prescribed drugs”, as would the father during access visits; and (6) the parents shall cooperate with the services, assessment, treatment and counselling offered by the Agency. [ 21 ] Violence continued. [ 22 ] The affidavit dated July 13, 2012 of the Child Protection Worker, Tiffany Hallett, related that, on May 7 or 8, 2012, an Agency caseworker had received a telephone call from the mother.

The mother said that, the previous night, the oldest son had “hit her on the head; she alleged he threatened to harm himself and others so she called the police and he was taken to the hospital”. The later Parental Capacity Assessment Report of Ms. Boyd-Wilcox said, of this event: [The mother] had indicated that [the oldest son] was using marijuana and that he had made threats against the younger children. [ 23 ] According to Ms. Hallett’s affidavit, on June 12, 2012, the school principal told Ms.

Hallett that the oldest son was “past the experimental stage” with drugs, “the R.C.M.P. had been to the school and had been exploring allegations that [the oldest son] and other students were dealing drugs”, and when the school contacted the mother about the oldest son’s escalating behaviour the mother “would curse and swear at the administration”. [ 24 ] On July 7, 2012 the Agency received another RCMP referral. A neighbour had reported to the RCMP that the oldest son was “hitting his mother in the head and beating her to the ground while holding her 2 year old child”. Ms.

Hallett spoke to the mother about the incident. Ms.

Hallett’s notes of the conversation, exhibited to her affidavit, included: - [The mother] was sitting on the couch and she described [the oldest son] as ‘coming right at me and hitting me in the head’. - [The youngest son] was in her arms throughout the altercation - [The mother] expressed that she pleaded with [the oldest son], “the baby is in my arms’. [The mother] stated “I wanted someone to help me.’ - [The mother] described the baby as crying and [the mother] asked [the middle son] to ‘go up the road and get help’ When [the middle son] left [the oldest son] followed him - [The oldest son] told [the middle son] to get in the house, which [the middle son] did - [The mother] described [the oldest son] as striking her with a plastic chair that belongs to [the youngest son] – he struck her in the head and ankle.

- [The mother] described being fearful of [the oldest son] for the last month and a half - [The mother] expressed she was in fear of leaving [the youngest son] alone because she was concerned [the oldest son] would hurt him. [The mother] expressed she was ‘screaming – Help’ really bad. [The mother] expressed to this worker that she was trying to protect the other boys.

She expressed that [the oldest son] started to punch here [ sic –her?] and she didn’t want to pass out. “I kept screaming and screaming and I was fearful he was going to hit the baby.’ … - [The mother] left the house and crossed the street, [the youngest son] was still in her arms. [The mother] described [the oldest son] as ‘trying to hit my head against the road. I didn’t care about myself. I was scared for the baby.’ [ 25 ] Two days after this interview, on July 9, Ms. Hallett received a phone call from the mother. According to Ms.

Hallett’s affidavit: 57. … [The mother] expressed that [the oldest son] stated that he was scared that Dad would “kick his ass” and that his father would be “pissed”. She expressed to me that she had no one to help her and expressed there needed to be contact with these kids and their father and that they were missing him. 58. THAT [the mother] alleged that the problems all started when they couldn’t see [the father]. … 59. THAT I contacted the R.C.M.P. and received a return call from Cst. Adam Merchant. I advised him of the circumstances and that [the oldest son]’s whereabouts are unknown. I was advised by Cst.

Merchant and did verily believe that he would send an email with the other members to see if he could be contacted. 60. THAT Cst. Merchant further advised me and I did verily believe in discussing the circumstances with the child, [name of middle son], he had indicated that he was “going to his dad’s tonight” and that he had lived “over there” pointing in the direction of Brendan’s Fairway. [ 26 ] On the following day, July 10, 2012, Ms. Hallett again went to the mother’s home. According to Ms.

Hallett’s affidavit, the mother “became increasingly agitated with me, raised her voice, and told me to “get the fuck out, get the fuck out of my house”. The mother did not attend her scheduled appointment with the therapist, Mr. Neufeld, that day. [ 27 ] Ms. Hallett’s Affidavit continues: 71. THAT as a result of the foregoing a Risk Conference was convened and based upon the foregoing it was determined that services had not alleviated the risk and that [the mother] was not complying with counselling and was admitting to self-medicating.

The children … had been in direct conflict with an incident of physical violence in the home and emotional abuse and other children had observed the violence. Numerous concerns were reviewed at the Risk Conference and it was determined that a Supervision Order could not adequately manage the risk in the home. 72.

THAT as a result of the foregoing, I have reasonable grounds to believe and do believe that the children … continue to be in need of protective services and that their health and safety could not be adequately protected other than by being taken into care. [ 28 ] On July 24, 2012, after hearing counsel for the Minister and the mother, the father appearing on his own behalf, the parties consenting, Judge Wilson issued an Initial Disposition Order that: (1) the three children were in need of protection under ss. 22(2) (b), (

g) and (

i) of the CFSA , (2) the children be in the Minister’s temporary care and custody with supervised access to the parents, (3) that the father “shall not attend at or around the childrens’ home or schools”, (4) that the mother “shall abstain from using alcohol and non- prescribed drugs”, and (5) scheduling a Placement Hearing for a later date. [ 29 ] The Initial Disposition Order of July 24, 2012 triggered the time limits in s. 45(1) of the CFSA : 45(1) Where the court has made an order for temporary care and custody, the total period of duration of all disposition orders, including any supervision orders, shall not exceed (

a) where the child was under six years of age at the time of the application commencing the proceedings, twelve months; or (

b) where the child was six years of age or more but under twelve years of age at the time of the application commencing the proceedings, eighteen months, from the date of the initial disposition order. The time limit for the youngest child, aged one at the time, would expire on July 24, 2013. The time limit for the middle son, aged six, would expire on January 24, 2014. [ 30 ] On August 14 and October 30, 2012 and January 15, and February 19, 2013, after review hearings, Judge Wilson issued further Orders for Temporary Care and Custody.

On each occasion, the Minister and mother appeared by counsel and consented to the Order. The father appeared by counsel on the first two occasions and on his own behalf on the latter two, each time consenting to the Order. The Orders reiterated the terms of the Initial Disposition Order of July 24, 2012. The Order of February 19, 2013 said the oldest child had separate counsel who should be copied with material. [ 31 ] By January 2013, a court ordered parental capacity assessment was underway, with an interim report expected before the next scheduled review hearing. On February 14, 2013, Ms.

Elaine Boyd-Wilcox, a psychologist, completed her interim report to assess parental capacity. The Report contained analyses related to the older and middle sons and the parents. Her comments respecting the father included:

[The father] appears to have dependent and self-defeating personality traits along with paranoid and avoidant features. Although he is usually able to function on a satisfactory basis, he may experience periods of marked emotional, cognitive, or behavioural dysfunction. … … Test results were indicative of numerous areas of concern about [the father]’s experience and expression of anger that would likely impact on his ability to parent effectively. Parenting Attitudes and Skills [The father] has indicated that he will support the boys being returned to [the mother]’s care.

It is his intention to maintain contact with them and participate with her in parenting. To this point he has not identified any deficits in his own parenting but I have not yet completed my final interview with him. Ms. Boyd-Wilcox’ comments respecting the mother included: At this point I am comfortable with concluding that [the mother] does have the potential to parent her sons effectively.

However, I remain concerned about her (in my opinion) unrealistic expectations about the nature of the support she can/should expect from [the father]. [ 32 ] After the February 19, 2013 appearance, the Agency received the results of toxicology tests that confirmed the mother’s use of cannabinoids on three occasions. For the next review hearing, Ms. Hallett, the Agency’s Child Protection Worker, filed an affidavit dated March 1, 2013. The Affidavit included: 9.

THAT since the Court appearance on February 19, 2013, the Applicant has received further drug testing confirming the use of cannabinoids on collection dates for January 2 nd , 6 th , and 8, 2013. … [ 33 ] On several occasions, Ms. Hallett spoke to the mother about the positive tests. According to Ms.

Hallett’s affidavit, at various times the mother said she had "one puff”, she “advised that she did not always use marijuana and does not purchase marijuana”, “she had not used it more than ‘a couple of times’ ”, and “I spoke to her specifically about these drug test results on February 19, 2013 and she again denied use of illegal drugs”. Ms. Hallett deposed that she “asked [the mother] to move forward to contact Addiction Services and complete an intake”. The toxicology reports exhibited to Ms. Hallett’s affidavit were reviewed by Dr. Bassam Nassar, a medical biochemist. Dr.

Nassar’s report, also an exhibit, said: From the information and tests provided, [the mother] states that she only used cannabinoids on or before December 2, 2012 and only as a single puff. However, [the mother] has tested positive not only on December 2, 2012 but also on January 2, 6 and 8, 2013.

Therefore, to continue to test positive for cannabinoids between December 2, 2012 and January 8, 2013, on four independent occasions, is inconsistent with the information provided and thus indicates use on more than one occasion. [ 34 ] As a result of the positive drug tests, which contravened the conditions of the Temporary Care Orders, the Agency suspended the mother’s access visits for nine days. Ms. Hallett’s affidavit of March 1, 2013 said: 18.

THAT in consultation on February 28, 2013 the Applicant [ i.e. the Minister] determined that it would support access resuming with [the mother] on the understanding that further breaches would result in suspension of access. The Applicant will be reinstituting the random alcohol and drug testing, which had been cessated on January 8, 2013. Unsupervised access would not be considered until a period of one (1) month of negative toxicology reports were received. … [ 35 ] Further to Ms.

Hallett’s suggestion, in February 2013, the mother contacted the Addiction Services of the Guysborough Antigonish Strait Health Authority concerning her marijuana use. On June 18, 2013, a clinical therapist with Addiction Services wrote a letter stating that the mother had completed the ten week program, was an active participant, and fulfilled her commitments. [ 36 ] On March 25, 2013, Ms. Boyd-Wilcox completed her Parental Capacity Assessment Report, drawn from psychological testing and interviews with the parties.

The Assessment said, of the father: He likely meets the diagnostic criteria for Intermittent explosive disorder (IED) an impulse control disorder characterized by extreme expressions of anger, often to the point of uncontrollable rage, that are disproportionate to the situation at hand. [ 37 ] The Parental Capacity Assessment’s appraisal of the relationship between the mother and father included: [The mother] indicated that the only serious relationship she has had is her relationship with [the father] which began when she was 17 years old and [the father] was 18 years old. … [The mother] reported that alcohol use was never an issue for either party in the relationship, but that [the father]’s use of marijuana was an issue.

She described [the father] as very dependent on marijuana, but she did not realize this until she got older. … [The mother] reported that during her relationship with [the father], she engaged in the following physically abusive or threatening behaviors towards him a few times [Ms. Boyd-Wilcox’ bolding]: • Threw an object at him. • Threatened him with a weapon.

• Threatened him with a club like object. • Scratched him. • Slapped him with the palm of her hand. • Hit him with an object. … [The mother] reported that during her relationship with [the father], he engaged in the following physically abusive or threatening behaviors toward her a few times [Ms.

Boyd-Wilcox’ bolding]: • Hit a wall, door, or furniture. • Threw an object at her. • Shook a finger at her. • Made threatening gestures or faces at her. • Threatened to destroy property. • Threatened her with a weapon. • Acted like he wanted to kill her. • Bit her. • Slapped her with the palm of his hand. • Hit her with an object. • Punched her. • Kicked her. • Beat her up. [The mother] reported that during her relationship with [the father], he engaged in the following physically abusive or threatening behaviors towards her many times [Ms.

Boyd-Wilcox’ bolding]: • Shook a fist at her. • Acted like a bully towards her. • Destroyed something belonging to her. • Threatened to harm or damage things that she cares about. • Threatened to hurt her. • Threatened to kill her. • Pushed or shoved her. • Grabbed her suddenly and forcefully. • Shook or roughly handled her. • Pulled her hair. • Twisted her arm. • Stomped on her. • Choked her. [ 38 ] During her cross-examination at the later Disposition Hearing, in October 2013, the mother confirmed that she had given this information to Ms. Boyd-Wilcox, and that the information was correct, but she added: Q.

And, in fact, her evidence suggests that there was reciprocal violence, what she called reciprocal violence. So you were perpetrating violence on [the father] as well. A. No.

Q. So you disagree with Ms. Boyd? A. Yes, I do. Q. Okay. Yet according to this very information, you admit to striking him. A. In retaliation. Q. Oh, so it was all [the father]’s doing? A. Yes, Q. Okay. Is that your position? A. I believe both of us had a part, yes. Q. Yeah. A. It takes two. [ 39 ] The Parental Capacity Assessment Report related the mother’s depiction of the family dynamics: [The mother] disclosed that around Christmas 2012 she saw that [the oldest son] was aligning with his father and claimed that the first time [the oldest son] tried to hit her [the father] reinforced his behavior. [ 40 ] Ms.

Boyd-Wilcox’ Parental Capacity Assessment Report stated the following conclusion respecting the mother: It is my conclusion based on the information gained during the course of this assessment that [the mother] has the potential to adequately parent her three sons [names omitted] if she is able to address the original protection concerns more thoroughly and to enhance her parenting skills within the timeframes allowed by the Child Protection Legislation.

I am guardedly optimistic that she will be able to do so. … The ongoing concerns identified about [the mother]’s ability to parent her sons effectively are as follows: • Intimate Partner Violence between [the mother] and [the father] was one of the presenting protection concerns when this assessment was referred. Although [the mother] has maintained regular contact with the Naomi Society and has been addressing issues related to abuse with her therapist Gary Neufeld she continues to have a tendency to minimize the scope and impact of the violence in her relationship with [the father].

This is not necessarily surprising given that she was exposed to violence between her parents which undoubtedly had an impact on her willingness to accept violence from her partner. As well, [the mother] seems to have had some difficulty understanding that [the oldest son]’s behaviour may at least in part be as a result of behavior modelled in the home and that her response to him was similar to her response to [the father] in the past.

That is, she attempted to minimize conflict and gave in to avoid violence. … • The experience and expression of anger is sometimes a struggle for [the mother] who concurred with test results indicating that she has had a problem with her anger for some time, that she is suspicious of others, that she ruminates about anger provoking incidents, and that she acts both passive aggressively and impulsively at times.

Given the violence that has occurred between her and [the father] and the results of the Anger Disorders Scale I am also concerned about how [the mother] might respond in a parenting situation when angry. … • Because [the mother] continues to minimize about the violence in her relationship with [the father] and because she continues to struggle with her own experience and expression of anger there remains a risk that she would expose her children to further abuse between her and her partner should she enter a new intimate relationship. • Although [the oldest son]’s behavioral problems were a significant factor in [the mother]’s children being taken into care [the mother] focuses on that and expresses that there was no reason to remove the two younger boys from the home.

She seems to be having difficulty acknowledging her inability to keep the younger boys safe given [the oldest son]’s behavior and given that until late 2012 [the father] was resident in the home at least some of the time. She minimizes the potential impact of having [the father] in the home and claimed ignorance about the Court Order from 2007 that prohibited [the father] from seeing the children and had the effect of the child protection file at that time being closed. … • [The mother] identified a limited support network and suggested that [the father] could provide child care while she was working.

She expressed confidence that she could co-parent with him and had no concern about his interactions with the boys in spite of having disclosed that he had supported [the oldest son] the first time he (the oldest son) hit her. Given the extent of the conflict and violence between [the mother] and [the father] in the past I find her comments very concerning because of the lack of recognition of the potential danger of having [the father] in her home (he does not have a home where he could care for the children) and the potential negative impact of his modelling on the boys’ behavior. [ 41 ] Ms.

Boyd-Wilcox’ Parental Capacity Assessment Report recommended: If [the mother] is able to address the identified concerns (through the interventions outlined below) in a timely fashion and the boys are to be returned to her care I would recommend that they be returned one at a time starting with [the youngest son]. Ms. Boyd-Wilcox’ “identified concerns” included:

7. Under no circumstances should [the mother] and [the father] be together in front of their sons. I continue to be concerned that they would not manage conflict appropriately and the potential for conflict between them remains high. If [the mother] is unable to comply with this restriction then she should not have the boys in her care. She should be assisted in developing strategies for dealing with [the father] demanding to see the boys or showing up at her home. [ 42 ] On March 27, 2013, the mother and Ms.

Hallett, the Agency’s Social Worker, met to discuss the Parental Capacity Assessment Report and, in particular, a “safety plan” to avert contact between the mother and the father. [ 43 ] On May 10, 2013 there was an access visit with the mother, the boys and the Agency’s Access Worker, Ms. Mohr. The mother’s treatment of the children raised concern. Ms.

Mohr’s notes of the meeting included: … [The middle son] drew a picture and when he was done he proudly showed mom the family picture [The oldest son] then mocked the picture. [The middle son] then threw the crayons on the floor and slammed his fist on the table and called [the oldest son] an asshole. [The middle son] and [the oldest son] continued to bicker throughout the visit. [The mother] did not intervene and continued to colour she made a picture as well of the four of them when [the middle son] asked where dad was she replied swimming in the water and then began to draw another figure representing dad. [The oldest son] continues to bother [the middle son] and then mom replies that is enough [name of oldest son] you are going in timeout. [The oldest son] would not get off the chair so she attempts to tip the chair over and [the oldest son] lands on the ground. [The mother] then begins to drag [the oldest son] across the floor into the other room. [The oldest son] begins to laugh uncontrollably but sits in the other room. [The mother] then enters the other room after a few minutes and asks [the oldest son] to apologize to [the middle son]. [The oldest son] agrees and does and then he asks [the middle son] for a hug. [The middle son] will not go near [the oldest son] for fear [the oldest son] will hurt him. [The middle son] then throws his cheese and cracker packets all over the floor, [name of oldest son] you’re an asshole and I don’t trust you he screams. [The middle son] then begins to stomp over to the washroom [the mother] not far behind him and she asks why he threw the food all over the floor, because [name of oldest son] can’t be trusted he replies. [Name of middle son] now you go on timeout yells mom, I’m sick of this fucking bullshit states mom. [The middle son] then walks into the other room punches and kicks the walls and screamed and cried. [The middle son] then kicks the chairs and sat himself on the floor.

After a few minutes mom goes and sees [the middle son] and sits on the floor with him and states “it’s not your fault and started to also cry. At this point this writer informs the mother that she will be ending the visit because everything was escalating and out of control. … [ 44 ] The mother told Ms. Hallett, the Agency’s Child Protection Worker, that these events were not worrisome. Ms. Hallett’s Affidavit of May 14, 2013 says: 38. THAT I contacted [the mother] subsequently on May 10 th . I asked [the mother] if she had any concerns about the access visit and she indicated “nope”.

I asked her of her impressions of the visit that day and she stated that it was like the last number of visits. I again asked her if she felt it was problematic and she stated “nope”. I advised her that the description of the visit by the Access Facilitator was very concerning and that it was determined that access would be suspended until further notice. She replied by indicating “oh really”. I encouraged her to think over the weekend about the visit and what she believed needed to change and noting it was her responsibility to contact me early next week to

schedule a meeting. [ 45 ] At the later Disposition Hearing, in September 2013, the mother’s next door neighbour testified about the father’s living arrangements at the mother’s home in 2013: Q. All right. Now, I want to talk about 2013, okay? This year. From – in the year 2013 did you see [the father] at [the mother]’s residence? A. Yes, I did. Q. And how frequently? A. He was living there. Q. Now, why do you say that? What did you see. Tell me what you saw. A. He was in and out. You’d see him coming in and out of the house with just his pajamas pants on. He was shovelling the driveway.

He was being picked up for his appointments and dropped off for his appointments to see the kids. Q. When was this occurring? A. This was after the new year. [ 46 ] This evidence may be compared to the mother’s statement to the Parental Capacity Assessor, Ms. Boyd-Wilcox, reported in Ms. Boyd-Wilcox’ interim report of February 14, 2013: [The mother] currently maintains that she has no intention of reconciling with [the father]. [ 47 ] On May 17, 2013, in response to reports that the father had been spending time at the mother’s home, the Agency’s child protection worker, Ms. Hallett, went to the mother’s home.

Ms. Hallett’s affidavit of June 14, 2013 says: 25. THAT on May 17, 2013, I accompanied by Worker, Willow McLean, attended at the residence of [the mother] together with Cst. McKenna from the Antigonish R.C.M.P. at approximately 2:30 p.m.. We knocked on the door various times with no response. A green Toyota Echo was observed in the driveway with a temporary permit in the window. There was a light on in the kitchen; boots and a light green windbreaker were observed in the entrance. 26. THAT at approximately 2:50 p.m. the green Toyota Echo was observed backing out of the driveway. [The mother] was driving.

I approached her and asked her to please return with me. I noted in our discussion that we needed to address various things. We attended at the residence. Constable McKenna returned to the residence and entered with us. 27. THAT [the mother] was advised of the allegations. She was questioned why she had not answered the door approximately 20 minutes earlier. She indicated she was in the bathroom and did not hear the door. I advised [the mother] that the Applicant had received referral information that [the father] was residing with her; she denied this. 28.

THAT I observed male flip flops in the kitchen area of the home and asked who they belonged to. [The mother] indicated she did not know. I again asked and she alleged they belonged to her father. I noted that they were exactly the same as the flip flops that [the father] was wearing at Court the day prior and asked if he was currently in the home. [The mother] advised me that [the father] had stopped in the day prior following Court to discuss the children and that he was not in the home. 29. THAT I asked if she had any objection to us taking a look around the home and she stated she did not.

With the assistance of Cst. McKenna, [the father] was located in a utility room under the stairs in a crawl-like space hiding. He was asked by Cst. McKenna, after being located with the use of a flashlight, to exit the crawlspace. [The father] indicated “there is no Order that says I can’t be here Tiffany”. [ 48 ] On July 30, 2013, the Agency received a referral from the RCMP that the mother had reported a violent incident at her home. The Agency’s Ms. Hallett spoke to the mother later that day. Ms.

Hallett’s notes of that conversation include: - [The mother] stated that when she arrived home there was a message from [the father] and he was cursing in the message - [The mother] stated that [the father] was stating he “wanted his stuff”, that he was “out of money” and “out of smokes”. [The father] did asked [the mother] about his mower stating “where is my fucking mower”. - [The mother] stated that she was on the telephone and answered the incoming call without knowing it was [the father] - [The mother] stated that she tried to “calm him down” - [The mother] stated that [the father] threatened to “smash the windows in her car” - [The mother] stated that in the conversation, [the father] stated that he was “coming in” - [The mother] reported that she was in her living room reading and did not hear [the father] come into the driveway – [The mother] stated that [the father] was banging on the window and banging on the steel door - [The mother] reported that she went to the top of the stairs and went to the door – [The mother] reported that [the father] shoved her from her shoulders. - [The mother] reported that she told [the father] she was going to call the police. - [The mother] reported that [the father] slammed her screen door and broke the handle of the screen door [ 49 ] On July 18, 2013, Ms.

Boyd-Wilcox wrote an Addendum to update her Parental Capacity Assessment Report, taking into account the events that occurred since her Report of March 25, 2013. The Addendum concluded that the mother was unable to address the protection concerns to protect the children from domestic violence and emotional abuse: The Case Recording Report indicates that [the mother] has continued to allow [the father] to have access to her home and that she seems to have attempted to hide his presence from agency staff is very concerning.

It suggests that she continues to cling to the relationship with [the father] and that in spite of intervention she continues to minimize the risk of the children being exposed to inappropriate conflict between her and [the father]. In my opinion the risk of such conflict remains high. Also the fact that [the mother] attempted to hide the fact [the father] was in her home brings into question her reliability as a source of information and thus decreases confidence about her ability to work collaboratively with service providers and support systems.

Another concerning issue was [the mother]’s response to what one would think would be the positive news that the agency was moving forward with a gradual transition to the boys being in her care. After the conversation with workers she is reported to have become upset and angry about the proposed manner of transition and this upset appears to have carried over into an access visit leading to her being inappropriate with the children and the access facilitator ending the visit early. [The mother] later denied any issues with the visit and minimized her inappropriate behavior.

This situation is an example of [the mother]’s ongoing struggle with anger management and with acting on impulse without being able to see the consequences of her actions. These reports suggest that her anger interfered with her ability to parent even for the short duration of the supervised access visit and her children were negatively impacted by her anger response. Unfortunately the recent events outlined in the Case Recording Report lead me to believe that [the mother] is not able to parent effectively at this time because of her inability to address the protection concerns more thoroughly.

I am particularly concerned about her ability to protect her children from further exposure to domestic violence and emotional abuse. 2. The Disposition Hearing [ 50 ] On September 17, 2013, the Disposition Hearing began before (now) Associate Chief Judge Wilson of the Family Court. The judge heard five days of testimony by nineteen lay and expert witnesses. The mother and father each were represented by counsel. The guardian ad litem for the two younger children had separate counsel. [ 51 ] The evidence from the prior proceeding was admitted by consent. Its admission was permitted by s. 96(1) (

a) of the CFSA . See also Nova Scotia (Community Services) v. S.Z. , 1999 NSCA 155 , at para 13 .

[ 52 ] The mother explained how the father’s attendances at her home squared with her affidavit that they had “permanently severed our relationship” (above para 12). She testified: Q. So, and [the youngest son] was born July 16th, 2011, is that correct? A. Yes. Q. So you’re in a sexual relationship with [the father] at least nine months prior to that? A. Yes. Q. Right? A. Yes. Q. Yeah. And, in fact, according to the RCMP records that have been distributed, you had reported him to the police on April 9th, 2012, because he had a BB gun and you thought he was going to do damage to your property. Do you recall that?

A. I believe so. Q. Yeah. A. Yes, I do. Q. So very volatile relationship, right? A. Yes, it is. Q. You’re back with him against a court order. When did you get back with him? A. It was never really a relationship after that. Q. And I think maybe this is some of the problem that I’m having with your evidence is that you continue to use the word “relationship” and maybe you use it different than I do. A. Maybe. Q. Yeah. So what’s your definition of a relationship? A. Being with somebody every day. Q. Okay. All right. And I’m not trying to put words in your mouth. I’m just letting you tell me, okay? A. Yeah.

A relationship, being with somebody every day, maybe residing with them. Q. But there were periods of time in 2010 and 2011 and 2012 that [the father] was living at your place occasionally, right? Was staying over, right? A. Yes. Yeah. Q. You were having sex with him. You had a kid with him, right? A. Yes. Yes. Q. And I would suggest to you, by most people’s definition, that’s a relationship, but it’s just not yours, is that it? A. It’s just not mine. Q. I see. So when we hear your evidence today about you’re not in a relationship with [the father], we have to keep in mind your definition, would that be fair? A.

Yes. [ 53 ] With the consent of the mother’s counsel, Ms. Boyd-Wilcox was qualified to give expert opinion evidence in the fields of “psychological assessment, clinical psychology, parental capacity, cognitive ability and the needs of children needs, assessment of abusers and victims of intimate partner violence”. She testified to her Reports, including her Parental Capacity Assessment Report of March 25, 2013 and Addendum of July 18, 2013 (above paras 31, 36-41, 49).

Asked for her reaction to the resumption of relations between the mother and father in 2013, leading to the discovery of the father in the crawl space on May 17, 2013 (above para 47), Ms. Boyd-Wilcox testified: A.

Well, the whole – my whole assumption that it would be safe to attempt to return the children to her care was based on the idea that she understood that this relationship, as it existed, was detrimental to the children and posed a risk to the children in terms of them being emotionally abused by witnessing the conflict and potentially physically abused by being collateral damage, if nothing else, in the conflict.

And by virtue of the fact that this was going on when she was saying that it wasn’t, it suggests to me that she really wasn’t attending to the seriousness of the concerns about the relationship and the potential risk to the children.

Ms. Boyd-Wilcox testified that the position stated in her update of July 18, 2013 (above para 49) accurately reflected her ultimate opinion. She then testified: Q. The record indicates, and I’m going to state this as an assumed fact, I guess, but I mean it’s a known fact that the time line in this matter for dealing with these kids is over in terms of the CFSA . Based upon the totality of your work, what, if any, opinion do you have as to whether [the mother] has the parental capacity to parent any or all of these three children? A.

Unfortunately, my opinion, as stated in the final letter, is that it’s not – I don’t believe that she has the capacity at this time to do that. … Q. And you are aware that the agency is seeking permanent care and custody without access for the purpose of adoption? A. I am. Q. And in terms of the work that you’ve done and your view of these children’s needs, what, if anything, can you say as to whether that plan is consistent or inconsistent with your view of the children’s need for stability? A.

Given the situation with the parents at this point in time, the information, I think that that plan is consistent. [ 54 ] Gary Neufeld is a clinical therapist who had treated the mother over the eighteen months since February 2012. At the request of the mother’s counsel, the judge qualified Mr. Neufeld to give expert opinion evidence in the field of clinical social work. Mr. Neufeld’s direct examination by the mother’s counsel included: Q. Mr. Neufeld, you do have a therapeutic relationship with [the mother], correct? A. Yes, I do. Q.

And you also have a therapeutic relationship with [name of oldest son], her son? A. Yes. Q. And I understand that this relationship commenced back in February of 2012, is that correct? A. That’s correct. Q. And this relationship is continuing today, to date? A. Yes, it is. … Q. Okay. In terms of [the mother]’s level of comprehension of what the goals and objectives were in your work with her, did she appear to have a good sense of what it was that she was working on and be able to identify the issues or problems? A. Yes. [The mother] does comprehend.

It’s – the struggle for her was behaviouralizing the comprehension at times. Q. And can you explain that further? What does that mean, behaviouralizing? A. Well, so an example would be she’s well aware that exposing the children to violence is unhealthy, and yet there were times when she would expose the children to violence because of very complicated issues to do with her past. Q. Now, when you say there were times that she would, are you referring to the period of time in your therapeutic intervention before the children were apprehended? A. Yes.

Well, depending on the – there was – there was violence within the couple relationship before the children, long before the children were apprehended, but then there was also violence from [the oldest son] to [the mother] that the younger children witnessed. And she – for example, she was well aware that that was unhealthy but, at times, was rather paralyzed to act upon it. … Q. All right. And throughout the course of your psychotherapy with [the mother], did she come to have some insight as to why [the oldest son] was demonstrating such behaviours? A. Yes, she did. Q. And can you elaborate on that for the court?

How can you attest to that? A. [The mother] was very clear that it likely came as a result of modelling in terms of witnessing his father being aggressive with his mom, and also that he learned over time that if he threatened aggression or used aggression, he would either get out of doing something that he was asked to do or be able to go somewhere that he wanted to go when [the mother] had requested that he not. … Q. And what could you tell the court about whether [the mother] was, in fact, intimidated by her son and how did she react to his aggression or lack of respect toward her?

A. She would most frequently become silent and was – seemed unable to provide consequences. Q. And throughout the course of your therapy with [the mother], did you work on that very issue with her in terms of how she should behave and … A. Yes, but I became – as I said, I became quite convinced that it had as much or more to do with the family that she grew up in than it did with the family that she was living in. Q. And can you explain that further for the court. What exactly do you mean by that? A.

That [the mother] witnessed her father physically assault her mother over many years in her childhood, and she was very often the – attempted to mediate between her mom and her dad. And it was an extremely difficult thing for her to witness, and she was not equipped in any way because of her developmental position to be doing that. Q. Okay. So how does that carry forward to her current circumstances? Can you … A. Well, she met and fell in love with [the father], and some of those abusive practices became part of that relationship as well.

And so – I mean, that’s a dynamic that’s not uncommon, that people who have experienced violence in the home can then become involved with – in an abusive relationship with an intimate partner. Q. Okay. And with respect to her role as a mediator between her mom and dad and her own childhood because of violence in the home, were you able to determine from her as to what role, if any, she took

part in family violence in the relationship with [the father]? A. I know that [the mother] said that there were times when she would retaliate, that she would become aggressive with [the father] as well. Q. Okay. And in terms of [the mother]’s personality, did you have an opportunity to make observations or do any assessment on her personality or her nature? A. Yes, I did. It’s my belief that [the mother] has – falls within what’s commonly referred to as cluster B and a personality disorder, more specifically borderline and narcissistic. [ 55 ] Mr.

Neufeld’s cross examination by the Minister’s counsel included: Q. Yeah. What was she telling you between January 2013 and May of 2013 about her relationship with [the father]? And you can look at your notes if you need to. I just would like to know what she was telling you about that. A. No. I don’t need to look at my notes. I remember quite accurately. The relationship with [the father] was complicated. She is drawn to him. It’s similar to what I talked about earlier. She knows that it’s an unhealthy relationship. She knows for herself, she knows it unhealthy for the children, and yet she is drawn to him. Q.

Okay. But what was she telling you about what was happening on the ground at that point? Did she tell you they were together? A. She told me about it after the fact. Q. All right. And when was that … A. After it was … Q. Discovered? A. Exactly. … Q. And she was still drawn to him today? Is she still drawn to him today? A. I would say that in a physical sense, she has told me she is not drawn to him. She’s not spending time with him. But my belief is, and what she has told me, is she will always be drawn to him. Q. So I’m going to – I just want to make sure I’ve got what you’ve told us.

On a number of occasions you said that she has insight, yet her difficulty has been to behaviouralize it? A. That’s correct. Q. In fact, that’s noted in a number of your reports. A. It is. Q. So, in other words, to take what you learn and put it into practice? A. Correct. Q. At its simplest? A. Yes.

Q. Correct? A. Um-hmm. Q. And would you agree with me that in this circumstance insight, in other words knowing – let’s deal with [the father]. Knowing [the father] is a danger to her and her children, she verbalizes that, correct? A. Yes. Q. She has insight into that in that way? A. Yes. Q. And she has admitted that – and there’s no question that – there’s no question whatsoever, is there, that that relationship has damaged at least [the middle son] and [the oldest son]? A. Yes. Q. And she acknowledges that? A. Yes, she does. Q.

Yet, despite having this insight, quote/unquote, she’s back with him months before the end of the – mere months before the end of the time line, right? A. Yes. Q. So she can’t put that knowledge and turn that into practice when it comes to [the father], and that’s been the history, correct? A. Yes. And that’s similar to what I was describing with the behavioural management of the children. … Q. She’s been a good client in the sense that she’s tried hard? A. She has. Q. Yeah.

Because of her – is it because of her family background and the resultant traits, she is at least at this point today, you are unable to say that she has overcome those issues? A. I would say that’s correct. Q. Yeah. And thus, as we’re sending her children – if her children or one of them were sent back to her today, those same issues exist, correct? A. They have not – they will not disappear. Q. No. And to date, based on her history, she’s been unable to manage them successfully for her children, correct? A. That’s correct. Q.

And would you agree with me that the best predictor of future behaviour is past behaviour or not? I hear that a lot from psychologists, I don’t know about therapists. A. I think that’s probably, generally speaking, fair to say. Q. Yeah. Yeah. And unfortunately, despite the obvious, I’ll use the word, high stakes of being in a child welfare matter, correct, and significant service, that’s where we’re at today with her, right? A. Yes. Q. And from – insight that you can’t put in practice doesn’t lessen the risk for the kids, does it? A. It would not lessen the risk. [ 56 ] Ms.

Valorie Rule was the guardian ad litem for the two younger children, appointed by the Court further to s. 37(3) of the CFSA . Ms. Rule is a clinical and forensic psychologist with extensive experience in child protection. As guardian ad litem , Ms. Rule filed a report and testified. Her Report said: There is a plethora of research to support the impression that children who are exposed to parental conflict, substance use, and corporal punishment are at risk of developing emotional, academic, and behavioural difficulties. The more chronic and direct the exposure is, the greater the risk.

It is likely that [the middle son]’s difficulties including eating, bed wetting, aggressiveness, academic problems, and emotional symptoms; and [the youngest son]’s temper tantrums and need for rest are based in growing up in their family of origin environment. There is an indication that both boys’ current level of functioning is improved since being placed in the protective care of the Minister and they have stabilized.

Based on the review of the file material, the parent’s resistance to lack of progress in ameliorating services, and the concern that therehas been no significant change in terms of [the mother] or [the father]’s functioning since the initial finding of protection, it is myopinion that the best interest of [the middle son] and [the youngest son] would be served by remaining in the care of the Minister in aPermanent Care Arrangement. [Ms. Rule’s underlining] [57] On October 18, 2013, the judge issued his Decision, followed on November 19, 2013 by three Orders, one for each child.

Thejudge ordered that the Minister have permanent care and custody of the three children, without access to either parent. Later I willdiscuss the judge’s reasons. 3. Issues [58] On December 20, 2013, the mother appealed to this Court. She asks that the Minister’s protection application be dismissed forthe two younger children and that the two younger children be returned to her care. [59] The mother’s factum lists thirteen issues. Most are factual, or involve the application of the CFSA’s standards to the facts. Themother’s submissions cover the territory of analysis at a final disposition hearing.

Almost all can be grouped under the heading –whether the trial judge committed an appealable error, under the standard of review, in his determination that the children should be inthe permanent care and custody of the Minister, without access. I will discuss these points topically as the principal issue. [60] In addition, the mother (1) challenges the constitutional validity of the CFSA’s time limits for supervision and temporary care,and (2) says that the trial judge erred by allowing the guardian ad litem too prominent a role in the proceeding, prejudicing the trial’sfairness to the mother.

I will address these points as other issues. 4. Standard of Review [61] In A.M. v. Children’s Aid Society of Cape Breton-Victoria, 2005 NSCA 58, Justice Cromwell described the standard ofreview in child protection appeals: [26] This is an appeal. It is not a retrial on the written record or a chance to second guess the judge’s exercise of discretion. Theappellate court is not, therefore, to act on the basis of its own fresh assessment of the evidence or to substitute its own exercise ofdiscretion for that of the judge at first instance.

This Court is to intervene only if the trial judge erred in legal principle or made apalpable and overriding error in finding the facts. The advantages of the trial judge in appreciating the nuances of the evidence and inweighing the many dimensions of the relevant statutory considerations mean that his decision deserves considerable appellate deferenceexcept in the presence of clear and material error: Family and Children’s Services of Lunenburg County v. G.D., [2003] NSJ. No416 (Q.L.) (C.A.) at para 18; Family and Children’s Services of Kings County v.

B.D. (1999), 1999 NSCA 180 , 177 N.S.R.(2d) 169 (C.A.); Nova Scotia (Minister of Community Services) v. C.B.T. (2002), 2002 NSCA 101 , 207 N.S.R. (2d) 109;Van de Perre v. Edwards, 2001 SCC 60 , [2001] 2 S.C.R. 1014 at paras 10 - 16. [62] This Court often has adopted Justice Cromwell’s passage: Nova Scotia (Community Services) v. T.H., 2010 NSCA 63, atpara 18, leave to appeal refused [2011] 1 S.C.R. xi; Children and Family Services of Colchester County v. K.T., 2010 NSCA 72, atpara 22, leave to appeal refused [2011] 1 S.C.R. vii; Children’s Aid Society of Cape Breton (Victoria) v.

J.F., 2005 NSCA 101, para15, per Bateman, J.A.; Nova Scotia (Community Services) v. A.S., 2007 NSCA 82, paras 5-9, per Cromwell, J.A., as he then was; G.M. v. Children’s Aid Society of Cape Breton-Victoria, 2008 NSCA 114, para 26; Nova Scotia (Community Services) v. N.J.H.,2006 NSCA 20, para 15. [63] Similarly, in S.G. v. Children’s Aid Society of Halifax, 2001 NSCA 70, Justice Cromwell said: [4] In approaching the appeal, it is essential to bear in mind the role of this Court on appeal as compared to the role of the trial judge.

The role of this Court is to determine whether there was any error on the part of the trial judge, not to review the written record andsubstitute our view for hers. As has been said many times, the trial judge’s decision in a child protection matter should not be set asideon appeal unless a wrong principle of law has been applied or there has been a palpable and overriding error in the appreciation of theevidence [citation omitted]. The overriding concern is that the legislation must be applied in accordance with the best interests of thechildren.

This is a multi-faceted endeavour which the trial judge is in a much better position than this Court to undertake. As Chiman,J.A. said in Family and Children Services of Kings County v. D.R. et al. (1992), 1992 NSCA 37 , 118 N.S.R. (2d) 1; 327A.P.R. 1 (C.A.), the trial judge is “…best suited to strike the delicate balance between competing claims to the best interests of thechild”. 5. Principal Issue - Permanent Care and Custody [64] The judge (para 4) opened by stating “[t]he governing principle is always the best interests of the child”, and “[t]he Ministerbears the evidentiary burden”.

The judge (para 31) concluded his reasons in the same vein: The best interests of these children require that they be placed in the permanent care of the applicant. [65] The judge’s statement of the governing principle derives from s. 2(2) of the CFSA: Purpose and paramount consideration … 2(2) In all proceedings and matters pursuant to this Act, the paramount consideration is the best interests of the child. [66] The judge particularized these children’s “best interests” by saying:

[2] The issue in this case is exposure of the children to domestic violence. That the respondent parents have been in an abusive relationship over many years is acknowledged.

That the children have been harmed by exposure to domestic violence is acknowledged. … [3] In the final analysis this case is really about whether the respondent mother, who has engaged in extensive services over a long period of time, is able to keep these children safe should they be returned to her care. [ 67 ] The judge described the effects on the children of their parents’ violent history: [8] … The younger children were exposed to not only parental conflict but conflict between [the mother] and the oldest child.

There is no issue that this was an appropriate case for intervention. … [22] The original presenting challenges were around the older boy’s aggressive behaviour. While he appears to have generally done well in foster care, there continue to be challenges. He can be angry, explosive and has recently been involved with drugs. [23] The middle child, who is currently eight, is in therapy. His therapist describes him as traumatized. Apparently he is an anxious little boy who is concerned about keeping his mom safe.

He too can be explosive and is likely to require on-going services for some time. [24] The infant C. is two years of age. Given his age, he has not been assessed. The guardian who met with him a few times sees behaviours that bear watching. The infant’s needs are not really any different than those of his older siblings.

In the guardian’s opinion these children will require stable, predictable stress free environments where they can be children and not worry about their home being safe of [ sic – “or”] their parent being in danger. … [26] There is no dispute these children have suffered by their exposure to domestic violence over a long period of time.

The experts were all agreed that the children need predictable, stable, stress free environments where they can either be supported as children (the case of the two younger) and in the case of the oldest, receive parenting that is patient and resourceful to address the needs of an adolescent severely compromised by his life experiences. [ 68 ] I agree with the judge that the “paramount consideration” is the best interests of these children not to be exposed to further family violence. The paramount consideration is not the interests or wishes of the mother or the integrity of the biological family.

Exposure to Future Violence [ 69 ] If the children return to the mother, would they be exposed to more violence? [ 70 ] In the judge’s view, any resumption of the relationship between the parents likely would entrain further episodes of violence that would harm the children. That view is well supported by the evidence. For instance, Ms. Boyd-Wilcox’ (March 2013) Parental Capacity Assessment Report’s recommendations included (above para 41): Under no circumstances should [the mother] and [the father] be together in front of their sons.

I continue to be concerned that they would not manage conflict appropriately and the potential for conflict between them remains high. If [the mother] is unable to comply with this restriction then she should not have the boys in her care. … [ 71 ] How substantial is the risk that the mother and father resume their relationship? That is an issue of fact. [ 72 ] The judge referred to aspects of the evidence: [7] As this current proceeding commenced, it was obvious that [the mother] and [the father] had re-established their relationship somewhere between 2006 and 2011.

It was unclear from the evidence exactly how much of that time they resided together, but there were clearly periods of time when he was residing in the household. Their youngest child was born in 2011. Their final separation, in the sense of cessation full-time cohabitation appears to have occurred a few months after the youngest child was born. An important consideration in this case is how that relationship has continued to play out during this proceeding. … [13] In May of this year the Agency met with [the mother] to discuss a transition plan for the children.

That meeting did not go particularly well and [the mother] was visibly upset. While there is conflict in the evidence between [the mother] and the access facilitator, the access visit that followed a day or so after that meeting presented concerns for the Agency because of [the mother]’s presentation. She appeared to be agitated, was having trouble managing the children and according to the access facilitator was engaging in some inappropriate conversations with the children.

The access visit was terminated prematurely. [14] About the same time, the Agency was receiving information that [the father] continued to spend time in [the mother]’s residence. While the order prohibited contact between the respondents and the children without Agency supervision, there was not a provision in the order that prevented contact between the parties.

It was however well understood and acknowledged by [the mother] that her continuing in a relationship with [the father] would be of concern to the Agency and would present great difficulties for her having the children returned to her care. [15] As a result of information received by the Agency, they attended [the mother]’s residence in May 2013. They inquired whether or not [the father] was at the property and [the mother] denied it. The workers were accompanied by an RCMP officer. When they asked if they could search the residence, [the mother] agreed.

During the search of the residence they discovered [the father] hiding in a crawl

space. … … [17] A further significant incident occurred in late July. [The mother] had been on an access visit and returned home. She noted [the father] had called a number of times. They subsequently connected and [the mother] learned he was looking to retrieve a lawn mower. For whatever reason she did not have the lawn mower and an argument ensued. He came to the home and an altercation occurred. As a result of this he has been charged with assault and uttering threats.

He is on an undertaking to have no contact. [ 73 ] In the final analysis, the parties’ “very enmeshed and complicated relationship”, their past pattern of reconciliations after episodes of violence, and the expert testimony of professionals who had spent hours with the mother, assisted the judge to predict that the parents would re-engage, and the children would be exposed to further violence. The judge said: [19] The evidence of [the mother]’s therapist Gary Newfeld [ sic - Neufeld] is important. [The mother] has been engaged in therapy with Mr. Newfeld for an extensive period of time. Mr.

Newfeld has come to understand that [the mother] and [the father] are themselves the product of growing up in homes where they experienced domestic violence. They have been in a relationship since [the mother] was about 15 years of age. It is a very enmeshed and complicated relationship. … [27] The court has to consider this case in its historical context. These are not new or isolated problems. They have continued to persist over a long period of time. The respondents have not shown themselves, despite court orders to the contrary, capable of disengaging themselves from their enmeshed lives.

While [the mother] testifies that she now gets it, she similarly testified seven years ago. … [30] It has been said many times that the best predictor of future behaviour is past behaviour. If that is true, and the psychologists believe that it is, the events of May and July are cause for caution. Just as [the mother] testified in 2006 that she understood the risks [the father] presented, they reunited. In May, she knew [the father] should not be at her home, so he hid. In July she would have to know that an angry [father’s name] could cause trouble, yet she let it happen.

Unfortunately, all this suggests a recurring cycle. [ 74 ] Accordingly, the judge found that the children’s best interests required that they be in the Minister’s permanent care and custody. [ 75 ] The judge’s finding bears no palpable and overriding error.

It is supported by cogent evidence that I have quoted above, and will summarize below. [ 76 ] The judge had the evidence of the father’s repeated physical abuse of the mother, going back years, followed by their separations, then by their reconciliations, and the mother’s insistence, even immediately after physical abuse, that the father was a “good parent” and should have ongoing contact with the children. (above paras 6, 12-16, 19, 25-26, 31, 37-41, 45-47, 49, 52-55). [ 77 ] The judge had the evidence of Ms. Boyd-Wilcox and Mr.

Neufeld, qualified as experts, that the mother’s family background and psychological profile means that her enmeshed relationship with the father likely will continue (above paras 31, 36-41, 49, 53-55). Neither Ms. Boyd-Wilcox nor Mr. Neufeld, nor the Agency, wished that the children be taken from the mother. All were led, nonetheless, to the conclusion that returning the children to the mother likely will result in renewal of the children’s exposure to family violence.

The judge heard similar concerns from the children’s guardian ad litem , a psychologist experienced in child protection (above para 56). [ 78 ] The mother said that her relationship with the father was over. The judge had a material basis to assess the credibility, reliability and weight of the mother’s assurance. [ 79 ] The judge had the mother’s affidavit in 2007 that the mother and father had “permanently severed our relationship” and “the cessation of my relationship

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