Nova Scotia (Community Services) v. C.K.Z., 2016 NSCA 61

Nova Scotia Court of Appeal Citation: Nova Scotia (Community Services) v. C.K.Z. , 2016 NSCA 61 Date: 20160729 Docket: CA 449684 Registry: Halifax Between: Minister of Community Services Appellant v. C.K.Z. and G.L.P. Respondents Restriction on Publication: 94(1) of the Children and Family Services Act , S.N.S. 1990, c. 5 . Judge: The Honourable Justices Bourgeois and Van den Eynden Appeal Heard: July 15, 2016, in Halifax, Nova Scotia Subject: Permanent care and custody; Children and Family Services Act ( ss. 22(2) (

b) and (k)); best interests of children

Summary: In the court below, the Minister applied for permanent care orders for the respondents’ two infant children —now 2 and 4 years of age. In the decision under appeal, the trial judge determined the children were no longer in need of protection. He dismissed the Minister’s application for permanent care and returned the children to their parents’ care. The Minister appealed, and asserted the trial judge made several reviewable errors, including that he wrongly focused on the rights of the parents as opposed to what was in the best interests of the children.

The trial judge determined both parents were intellectually disabled. He determined that the parents “may need society’s long term help” and “it may be time for a different perspective, and a different approach in the best interests of the family.” In his decision, the trial judge also referenced the United Nations Convention on the Rights of Persons with Disabilities . The Minister maintains the trial judge was required to view the evidence and assess risk from the perspective of the children’s needs and best interests, not the parents’.

The Minister argued that the level of ongoing risk to the children remains high and requests this Court to order permanent care if error is found.

Issues: 1. Did the trial judge err by adopting a parent-centric and/or proof of fault requirement when considering whether the children were in need of protective services? 2. Did the trial judge err when stating the burden of proof on the Minister was to a “clear, convincing and cogent” standard? 3. Did the trial judge err in his application of s. 22(2) (

k) of the Act ? 4. Did the trial judge err in his application of s. 22(2) (

b) of the Act ? 5. Should this Court find error justifying appellate intervention, what is the appropriate disposition? Result: Appeal allowed. Children placed in the permanent care and custody of the Minister. 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 38 pages. Nova Scotia Court of Appeal Citation: Nova Scotia (Community Services) v. C.K.Z. , 2016 NSCA 61 Date: 20160729 Docket: CA 449684 Registry: Halifax Between: Minister of Community Services Appellant v. C.K.Z. and G.L.P.

Respondents Restriction on Publication: 94(1) of the Children and Family Services Act , S.N.S. 1990, c. 5 . Judges: Scanlan, Bourgeois and Van den Eynden, JJ.A. Appeal Heard: July 15, 2016, in Halifax, Nova Scotia Held: Appeal granted, per reasons for judgment of Bourgeois and Van den Eynden, JJ.A.; Scanlan, J.A. concurring Counsel: Peter C. McVey, Q.C., for the appellant Nicholaus Fitch, for C.K.Z. Michael K. Power, Q.C., for G.L.P. 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. SECTION 94(1) PROVIDES: 94(1) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding pursuant to this Act , or a parent or guardian, a foster parent or a relative of the child.

Reasons for Judgment: Overview [ 1 ] In the court below, the Minister applied for permanent care orders for the respondents’ two infant children—now 2 and 4 years of age. At trial, the Minister asserted the parents did not have the capacity and/or ability to resume care of their children. The Minister believed returning the children to the care of their parents exposed them to substantial risk of physical harm, emotional harm and chronic neglect. [ 2 ] In the decision under appeal, the trial judge determined the children were no longer in need of protection.

He dismissed the Minister’s application for permanent care and returned the children to their parents’ care. Prior to that, both children had been in the temporary care of the Minister for some time. [ 3 ] The Minister appeals, asserting the trial judge made several reviewable errors. One material and overarching asserted error was that the trial judge wrongly focused on the rights of the parents as opposed to what was in the best interests of the children. [ 4 ] The trial judge determined both parents were intellectually disabled.

He determined that the parents “may need society’s long term help” and “it may be time for a different perspective, and a different approach in the best interests of the family.” In his decision, the trial judge also referenced the United Nations Convention on the Rights of Persons with Disabilities.

The Minister maintains the trial judge was required to view the evidence and assess risk from the perspective of the children’s needs and best interests, not the parents’. [ 5 ] The Minister argues that the level of ongoing risk to the children remains high and, based on fresh evidence the Minister seeks to submit, has arguably increased since return of the children to their parents’ care. [ 6 ] Understandably, the parents love and want to continue to care for their children. Losing their right to parent cannot be interfered with lightly and should only occur if required to protect the welfare of a child.

Such is the circumstance in this case. [ 7 ] We find the trial judge made reversible errors and allow the appeal. The Minister asks this Court grant the requested orders for permanent care and not remit for retrial. This Court has the authority to grant the requested orders for permanent care, and we have determined it is in the best interests of the children to do so. Our reasons follow. Background [ 8 ] Before setting out the issues and our analysis, we turn to set out some background for context.

We will provide additional background and evidence as required when addressing the specific issues. [ 9 ] The respondent parents, CKZ (mother) and GLP (father), have been in a relationship for approximately 7 years. CKZ is 26 years old (DOB June 17, 1990). GLP is 44 years old (DOB February 11, 1972). [ 10 ] Together they have two children, ASP (DOB March 15, 2013) and GCP (DOB June 17, 2014). Both were found to be in need of protective services. Separate protection proceedings were commenced for each child in the Family Court of Nova Scotia. Judge William J.

Dyer presided over both protection proceedings. [ 11 ] The Minister took ASP into care on June 18, 2013. The Minister filed a Protection Application and Notice of Hearing dated June 21, 2013. The Minister sought an order for temporary care and custody; asserting ASP was a child in need of protection pursuant to s. 22(2) of the Children and Family Services Act ( Act ).

Specifically, under s. 22(2)(b) – substantial risk of physical harm, (g) – substantial risk of emotional harm, (ja) – substantial risk of physical harm caused by chronic and serious neglect, and (k) – his parents were unable to resume his care. [ 12 ] At each stage of the protection hearing phase (initial five-day hearing June 25, 2013, interim hearing July 15, 2013 and protection hearing September 23, 2013) , the trial judge determined that ASP was a child in need of protection under the above clauses of

s. 22(2) of the Act . In addition, at each stage, he ordered that the child ASP remain in the interim care and custody of the Minister. [ 13 ] The orders issued during the protection hearing phase provided for parental access, which was subject to supervision. In addition, the parents were expected to engage in supportive and rehabilitative services, and the trial judge ordered the parents to participate in an assessment of their parental capacity. Two experts prepared reports – Dr. Susan Hastey and Debra Reimer.

Their findings and recommendations will be referred to in more detail later. [ 14 ] In preparation of the disposition hearing, initially scheduled for December 16, 2013, the Minister filed the required plan of care. Under this plan, dated December 10, 2013, the Minister sought permanent care and custody of ASP. At that time, the Minister held the view that: While the Respondents, [CKZ] and [GLP], have not refused services, there is ample concern of ongoing denial and/or minimization of concerns which would severely impair their ability to benefit from services.

It is the Applicant Agency’s position that all available services have been considered and and/or attempted.

It is the Agency’s position that there is no reasonable expectation that [CKZ] or [GLP] will become able to safely and adequately parent [ASP] or their second child as numerous Child Protection issues remain unaddressed. … Although [GLP] and [CKZ] requested a referral for Alternatives in order to deal with their anger and relationship problems, both parents have been unable to identify the reasons why [ASP] was removed from their care and have minimized the concerns for domestic violence. [CKZ] and [GLP] remain unable to recognize and/or acknowledge the existence of these issues or their involvement in causing their child harm by repeatedly placing him at significant risk.

In general, [CKZ] and [GLP] have many parenting challenges that impede their ability to safely and adequately parent [ASP]. … It was and remains the Applicant Agency’s position that the Respondents, [CKZ] and [GLP], do not have the potential to safely and adequately parent their child and provide for his care, needs and safety. The child would remain at risk of harm as per Sections 22.2 (b) (g)(ja) and (

k) of the Children and Family Services Act should [ASP] be returned to their day to day care and custody. It is the Agency’s position that there are no services available to assist [CKZ] and [GLP] in addressing these protection concerns within the time limitations imposed by the Children and Family Services Act . [ 15 ] The respondents contested the disposition sought by the Minister. [ 16 ] The disposition phase of the proceedings involving ASP was protracted.

The disposition hearing was “notionally” started on December 16, 2013 but the disposition hearing and resulting order were not finalized until October 2, 2014. A number of intervening events affected the timeline. These included delays in the preparation of expert reports, complications with the respondent mother’s health, and the fact she was pregnant with her second child and the birth of that child, to mention a few. Counsel asked for and agreed to the extensions.

The parties, their counsel, and the trial judge, shared the view that the multiple adjournments were in the best interests of ASP. [ 17 ] The October 2, 2014 disposition order confirmed ASP remained a child in need of protection (under the same clauses of s. 22(2) noted earlier) and ASP was maintained in the temporary care and custody of the Minister. Although the order provided for ongoing placement in the Minister’s care, the Minister had revised its plan of care.

Due to changing circumstances, as of October 2014, the Minister was now open to considering the possibility that ASP might be returned to his parents’ care. The change in circumstances, which gave rise to the Minister not pressing for an order for permanent care and custody at this time, was set out in the September 12, 2014 plan of care and included: [CKZ] and [GLP] gave birth to [GCP] on June 17, 2014. [CKZ] received prenatal and postnatal care from Midwife, Leslie Niblett. Prior to the baby’s birth, the Agency had discussed the possibility of taking the baby into the Agency’s Temporary Care.

At the time of [GCP’s] birth, the Agency received positive reports from Ms. Niblett and have noted that there have been no recent reports of domestic violence between the parents. Both parents have also agreed to participate in any services that are offered by the Agency along with the Enhanced home visiting program offered through Public Health. Based on this information, the Agency made the decision to allow the baby to remain in the parents[’] care while providing intensive parenting support along with other community resources and services.

The Agency agreed that a case plan would be developed in order for the Agency to assess the parents’ commitment to change and their ability to appropriately care for their newborn child while determining the best plan for [ASP]. [. . .] At the present time, the parents are having supervised visits with [ASP] at their home every Friday from 10 – 3pm. The Agency’s plan is to have [ASP] remain in the Agency’s Temporary Care and Custody with three month reviews and to begin increasing access at the parents’ home.

The access will be reviewed on a monthly basis. [. . .] [ASP] has been in the Agency’s care since June 2013. Significant progress must now be made in terms of stabilizing their personal circumstances, demonstrating a commitment to consistently being available for the children and being able to identify and meet the needs of the children.

Final disposition will be dependent on the outcome and reports from service providers, observations made by Agency caseworkers along with the outcome of the parents[’] access with [ASP]. [ 18 ] Following the granting of the first disposition order respecting ASP on October 2, 2014, multiple disposition reviews occurred. Each review order confirmed ASP remained in need of protection. Temporary care was continued; however, the access exercised by the

respondent parents increased with reduced supervision. Initially, it appeared that the circumstances of the parents might be improvingand the risks to the children reducing as evident in the Minister’s updated plan of care dated December 22, 2014. This was not to be thecase. [19] On April 22, 2015, the Minister took the respondents’ second child, GCP, into care. He was 10 months old at the time. Thistriggered the Protection Application for GCP.

At the initial (April 29, 2015), interim (May 19, 2015), and final protection hearing (July20, 2015) the trial judge determined GCP was a child in need of protection pursuant to s. 22(2)(b) – substantial risk of physical harm, and(g) – substantial risk of emotional harm, of the Act. [20] This also triggered the Minister to reverse its course respecting ASP. Under a plan of care dated May 26, 2015, the Ministerreverted to seeking an order placing ASP in the permanent care and custody of the Minister.

Although the disposition timeline for theyoungest child would not run out for some time, the disposition timeline for the child ASP was drawing to a close. [21] The Minister decided to seek an order for permanent care and custody of GCP early in the disposition phase of the protectionproceedings respecting this child. The Minister filed a plan of care to this effect on September 1, 2015. [22] Although the two protection proceedings were not consolidated, the final disposition hearing for the child ASP was heldconcurrent with the disposition hearing for GCP.

By agreement, the evidence applied to both applications. [23] As indicated earlier, the disposition phase of ASP’s protection proceedings was protracted. Not only was there a delay incompleting the disposition hearing (December 16, 2013 to October 2, 2014), the final disposition, although notionally started before theexpiry under s. 45(1) of the Act, it was completed outside this time frame.

Similarly, it was determined that the various adjournmentswere in the best interests of ASP. [24] The disposition hearing under appeal started on September 22, 2015 and was held over for completion to November 17, 18 and 19th, 2015. Closing submissions were in written form and filed in mid-December 2015.

The trial judge rendered an oral decision onFebruary 3, 2016 with orders pursuant to his decision issued on February 12, 2016. [25] At the final disposition hearing, the applicable statute provided the trial judge with only two options respecting the child ASP –grant the order for permanent care as requested by the Minister under s. 47(1) of the Act or dismiss the protection proceedings.

Theoptions for the younger child GCP were more diverse: dismissal, permanent care, continued temporary care or return to the parentssubject to supervision. [26] The trial judge concluded that both children were no longer in need of protection and dismissed both protection proceedings. [27] Subsequent to the Minister filing her Notice of Appeal, the trial judge released his decision in written form. (Minister ofCommunity Services v. GP, 2016 NSFC 9, unreported). It contains multiple variations from his oral decision. Some are more materialthan others.

The Minister requests that this Court disregard those portions of the written decision that are at variance with the trialjudge’s oral decision. The Minister suggests that some of the alterations speak to the grounds advanced on appeal or a material issue. We will return to this point later. [28] The Minister has filed a motion under s. 49(5) of the Act and Civil Procedure Rule 90.47 to introduce fresh evidence on appeal. We heard that motion together with the appeal proper. We allow the motion and admit the fresh evidence.

Issues [29] In her Notice of Appeal, the Minister sets out seven detailed grounds of appeal. Having considered the record, and the writtenand oral submissions, we would re-frame the issues before the Court as follows: 1. Did the trial judge err by adopting a parent-centric and/or proof of fault requirement when considering whether the childrenwere in need of protective services?; 2. Did the trial judge err when stating the burden of proof on the Minister was to a “clear, convincing and cogent” standard?; 3. Did the trial judge err in his application of s. 22(2)(

k) of the Act?; 4. Did the trial judge err in his application of s. 22(2)(

b) of the Act?; 5. Should this Court find error justifying appellate intervention, what is the appropriate disposition? Standard of Review [30] The standard of review of a trial judge’s decision on a child protection matter is well settled. This Court may only intervene ifthe trial judge erred in law or has made a palpable and overriding error in his appreciation of the evidence. In H.A.N. v.

Nova Scotia(Community Services), 2013 NSCA 44, Fichaud J.A. described the scope of appellate review as follows: [32] The Court of Appeal applies standards of correctness to issues of law, and palpable and overriding error - meaning an error that isboth clear and material – to issues of either fact or mixed fact and law with no extractable legal error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R 235, paras 8-10, 19-25, 31-36; H.L. v. Canada (Attorney General), 2005 SCC 25 , [2005] 1 S.C.R.401, paras 4, 65, 69, 72-74.

These normal standards of appellate review apply to a judge’s custody decision involving the child’s bestinterests. In Van de Perre v. Edwards, 2001 SCC 60 , [2001] 2 S.C.R. 1014, Justice Bastarache, for the Court, elaborated: 13 As I have stated, the Court of Appeal was incorrect to imply that Hickey, supra [Hickey v. Hickey, (SCC),[1999] 2 S.C.R. 518], and the narrow scope of appellate review it advocates are not applicable to custodial determinations where the best

interests of the child come into play. Its reasoning cannot be accepted. First, finality is not merely a social interest; rather, it isparticularly important for the parties and children involved in custodial disputes. A child should not be unsure of his or her home for fouryears, as in this case. Finality is a significant consideration in child custody cases, maybe more so than in support cases, and reinforcesdeference to the trial judge’s decision.

Second, an appellate court may only intervene in the decision of a trial judge if he or she erred inlaw or made a material error in the application of the facts... 14 It is clear from this case that it is necessary for this Court to state explicitly that the scope of appellate review does not changebecause of the type of case on appeal... Rather than indicating that appellate review differs when a court must consider the best interestsof the child, Gordon (Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27) is consistent with the narrow scope of appellatereview discussed later in Hickey, supra.

The case does not suggest that appellate review is appropriate whenever a trial judge has failedto mention a relevant factor or to discuss a relevant factor at depth. 15 As indicated in both Gordon and Hickey, the approach to appellate review requires an indication of a material error. If there is anindication that the trial judge did not consider relevant factors or evidence, this might indicate that he did not properly weigh all of thefactors.

In such a case, an appellate court may review the evidence proffered at trial to determine if the trial judge ignored or misdirectedhimself with respect to relevant evidence. This being said, I repeat that omissions in the reasons will not necessarily mean that theappellate court has jurisdiction to review the evidence heard at trial. As stated in Van Mol (Guardian ad Litem of) v.

Ashmore (1999),1999 BCCA 6 , 168 D.L.R. (4th) 637 (B.C.C.A.), leave to appeal refused [2000] 1 S.C.R. vi [sic], an omission is only a materialerror if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way thataffected his conclusion. Without this reasoned belief, the appellate court cannot reconsider the evidence. To the same effect: Nova Scotia (Community Services) v. B.F., 2003 NSCA 119, paras 44-45, leave to appeal refused . . .

Analysis Did the trial judge err by adopting a parent-centric and/or proof of fault requirement when considering whether the children were inneed of protective services? [31] The Minister asserts the trial judge inappropriately adopted a parent-centric approach to the issues before him for determinationand his assessment of the evidence. It is argued that the primary focus of proceedings under the Act must be the children, and that thetrial judge’s failure to make them so constitutes an error of law. [32] In response, the respondent argued that the Act specifically recognizes in the

preamble, and in a number of provisions, theimportance of the integrity of the family, and as such, the trial judge’s focus on the parents was not inappropriate. The respondent arguesthat the trial judge appropriately considered the family unit, including the parents and children, as the Act requires. [33] Integrity of a family unit is important. However, the predominant factor must be the welfare of the child. Following theseminal decision of the Supreme Court of Canada in New Brunswick (Minister of Health and Community Services) v.

C.(G.C.), (SCC), [1988] 1 S.C.R. 1073, courts have clearly placed the welfare and best interests of the child in priority to considerationsof parental rights and family integrity. In K.L.M. v. Nova Scotia (Community Services), 2007 NSCA 100, Justice Bateman said: [30] Throughout these proceedings the parents’ approach had been one of “parental rights” rather than child protection. They say it istheir right to raise their children as they see fit, unimpeded by society’s oversight, regardless of the impact on the children.

However, theSupreme Court of Canada has clearly rejected a parental rights approach to child welfare. In Syl Apps Secure Treatment Centre v. B.D.,2007 SCC 38 , [2007] S.C.J. No. 38, Abella, J. wrote for the Court: 44 The primacy of the best interests of the child over parental rights in the child protection context is an axiomatic proposition in thejurisprudence. As Daley J.F.C. observed in Children’s Aid Society of Halifax v. S.F. (1992), (NS FC), 110 N.S.R.(2d) 159 (Fam. Ct.): [Child welfare statutes] promot[e] the integrity of the family, but only in circumstances which will protect the child.

When the childcannot be protected as outlined in the [Act] within the family, no matter how well meaning the family is, then, if its welfare requires it,the child is to be protected outside the family. [para. 5] . . . 45 This Court has confirmed that pursuing and protecting the best interests of the child must take precedence over the wishes of aparent (King v. Low, (SCC), [1985] 1 S.C.R. 87; Young v. Young, (SCC), [1993] 4 S.C.R. 3, NewBrunswick (Minister of Health and Community Services) v. L. (M.), (SCC), [1998] 2 S.C.R. 534). It also directed inCatholic Children’s Aid Society of Metropolitan Toronto v.

M. (C.), (SCC), [1994] 2 S.C.R. 165, that in child welfarelegislation the “integrity of the family unit” should be interpreted not as strengthening parental rights, but as “fostering the best interestsof children” (p. 191).

L’Heureux-Dubé J. cautioned at p. 191 that “the value of maintaining a family unit intact [must be] evaluated incontemplation of what is best for the child, rather than for the parent”. 46 It is true that ss. 1 and 37(3) of the Act make reference to the family, but nothing in them detracts from the Act’s overall anddeterminative emphasis on the protection and promotion of the child’s best interests, not those of the family.

The statutory references toparents and family in the Act, which the family seeks to rely on to ground proximity, are not stand-alone principles, but fall instead underthe overarching umbrella of the best interests of the child. Those provisions are there to protect and further the interests of the child, notof the parents ... [31] The paramount consideration is the best interests of the children.

See also H.A.N. at paras. 44–46 . [ 34 ] We turn now to the trial judge’s decision. After an evidentiary review, the trial judge summarized “key points” in terms of the legal principles relating to permanent care applications. Relevant to the Minister’s allegation that the trial judge employed a parent- centric approach, we note that the trial judge included the following as “key” principles at paragraph [238] of his written decision: • The children’s best interests are paramount.

At different points in a child protection application, the Act directs the court to consider “the best interests of a child” when making an order or a determination. When that happens, subsection 3(2) dictates that the court consider those of the enumerated circumstances which are relevant. [ . . . ] • The Act must be interpreted according to a child-centred approach, in keeping with the best interests principle as defined in sec. 3(2) . This definition is multifaceted.

It directs the court to consider various factors unique to each child, including those associated with the child’s emotional, physical, cultural, and social development needs, and those associated with risk of harm. [ 35 ] Clearly, the trial judge was aware of the appropriate legal principles requiring him to make the children the focus of his analysis. Notwithstanding the court articulating the correct principles, the Minister argued the trial judge’s reasons do not disclose any meaningful application thereof, but rather, are replete with instances where the parents and their treatment were his pivotal focus.

To address this concern, it will be necessary to quote extensively from the trial judge’s reasons. [ 36 ] After concluding his review of the legal principles and sections of the Act , the trial judge began his analysis as follows: [247] I find merit to the parents’ assertions that especially in the early stages, the agency was slow to identify and provide appropriate supports and services, preferring to wait on professional assessments. (Susan Hastey mentioned the same in her first assessment.) [248] More troubling, I find, is the agency’s failure to recognize the parents’ special needs as intellectually disabled citizens.

I have combed and re-combed the voluminous document evidence entered and have been hard-pressed to find references to this reality, let alone any consideration of how to best meet those needs. The result, I find, is that the parents’ abilities (or lack), their progress (or lack), their perceived conflict with some agency representatives, etcetera, were invariably measured and assessed as if there was no disability – rather a simple unwillingness or inability [on the parents’ part] to meet “reasonable expectations”.

Rarely, if ever, I find, did anyone see the parents through a disability lens or put themselves in their shoes, so to speak. With respect, I refer back to Ms. Hastey’s original assessment and the clear determination of intellectual disability. I reiterate my opinion that that critical component was either brushed aside or forgotten. [249] At one juncture, I thought the information had been disregarded by service providers. But, upon hearing evidence from Lizette d’Entremont, for example, it seems the front-line services providers were not informed of the disabilities.

Little wonder some of them expressed frustration or consternation with the parents’ understanding, progress, etcetera. The service providers were never informed or directed appropriately. [250] Looking objectively at the evidence, perhaps the parents deserve far more credit than they have been given; and the agency considerably less.

I find, with respect, a more nuanced and insightful approach to the parents was warranted. [251] I judicially notice, based on many years of courtroom experience, that there are Province-wide, not-for-profit associations for people with intellectual disabilities and others - such as the Nova Scotia People First organization. It [People First] provides and supports a host of services, and can provide advocacy when appropriate.

With respect, I was surprised that neither the agency, nor the parents for that matter, directed any evidence to this resource. [emphasis in original] [ 37 ] The trial judge returned to the issue of the parents’ intellectual disabilities: [256] This is not a case of chronic serious partner abuse or deliberate child abuse . Drugs and alcohol dependency are not factors.

There is no evidence of psychiatric disorders or other significant mental health issues that are not already under supports and services. [257] It is a case involving two intellectually disabled parents who live in modest, if not impoverished, circumstances. They have experienced episodic problems within their relationship. Both have personal, emotional issues to address , but they are plugging away at them. [258] In my opinion, the parents may need society’s long term help . Many disabled people do.

This should not be a rationale to permanently remove their children from their care. [259] There has been much said about the parents’ failures. The bigger issue may be whether society has failed them. In asking that rhetorical question, I impute no ill-will or motive to anyone. But, it may be time for a different perspective, and a different approach in the best interests of the family . [260] I am allowing, as I must, that counsel for the parents and counsel for the agency made no reference in their submissions to the United Nations Convention on the Rights of Persons with Disabilities – but I will do so.

Did you know the Convention outlines the rights of people with disabilities and provides guidance for government and for society to ensure the rights of all individuals who are labelled as intellectually disabled are respected? The Convention was ratified by Canada in 2010. And, did you know Nova Scotia was one of the first Provinces to consent to Canada’s decision to sign and ratify it? (Even the “plain language” version of the Convention is somewhat lengthy.) (Emphasis added) [ 38 ] The trial judge then proceeded to quote extensively from the Convention on the Rights of Persons with Disabilities , including

from

Article 23 – Respect for Home and the Family . After which, he immediately concluded his analysis as follows: [263] I have considered all of the evidence before me. I am not persuaded, as at the hearing, that there is sufficiently clear, convincing and cogent evidence to meet the balance of probability standard to sustain the protection findings which are necessary to grant the permanent care and custody application in regard to [ASP].

And, as alluded to earlier, on the same evidence, continuation of the proceedings in regard to [GCP] cannot be sustained because I find he is not a child in need of protective services. [264] I conclude it is not in the best interests of each child that they be placed permanently in the agency’s care and custody. The respective applications are dismissed. (Emphasis added) [ 39 ] We note that the highlighted reference to the “best interests of the child” is the sole reference within the trial judge’s analysis to that critical issue.

There is no further explanation offered as to how the court was satisfied, based on the evidence before it, of that conclusion. [ 40 ] The Minister submits that the parent-centric approach apparent in the trial judge’s reasoning was not merely harmless musings, but rather indicative of him doing what he said it was time to do in protection proceedings involving parents with intellectual disabilities – implement a new approach utilizing a “new perspective” in the best interests of the family.

It is further argued that this “new perspective” found its way, inappropriately, into the trial judge’s assessment of the evidence. The Minister points to the trial judge’s conclusions relating to Dr. Hastey’s evidence as particularly troublesome: [ 41 ] Ms. Hastey recommended that [ASP] remain in the agency’s temporary care and custody, subject to supervised access at the parents’ home.

With respect, it struck me as extraordinary that she made not one recommendation to the agency regarding supports and services that might be sourced and tailored to meet the parents’ intellectual needs - which I respectfully find to be (and will now refer to as) intellectual disabilities. Nor did she at any time provide any guidance, or any measure or comparison of these individuals with other parents in the wider community with similar capacity . [ 42 ] As a consequence there is no evidence as to whether the parents fall within normal limits for similarly disabled people.

If nothing else, this is important when weighing Ms. Hastey’s opinions regarding the parents’ reported expectations for children and for themselves . And, with respect, this raises questions about whether the agency’s expectations for the parents were, and are, unrealistic. (Emphasis added) [41] The Minister submits that there are so many problems with the trial judge’s parent-centric analysis that the result is “a death by a thousand cuts”. We agree. Contrary to the respondents’ assertion, the trial judge’s approach to the issues before him was not in accordance with the principles set out in the Act .

We are satisfied that despite stating the correct child-centered legal principles, he failed to apply them. He also inappropriately referenced material not before the court in support of his “new perspective”. Finally, the trial judge applied a legal standard to the issues and evidence before him, which does not exist in the governing legislation. [42] It is difficult to accept that the trial judge’s analysis, as set out above, was harmless obiter . The words he chose are clear and unequivocal. The trial judge boldly called for a “different perspective” for parents with intellectual disabilities.

In endorsing a “different approach”, the trial judge found support in the United Nations Convention on the Rights of Persons with Disabilities . This is problematic in several regards. Firstly, the trial judge noted “Nova Scotia was one of the first Provinces to consent to Canada’s decision to sign and ratify it”, yet, there is no analysis how that document serves to modify the child-centered focus set out in the legislation governing the proceeding before him.

Furthermore, we note that in relying on one Convention on the rights of persons with disabilities, the trial judge overlooked the existence of the United Nations Convention on the Rights of the Child . There is no analysis as to why the rights of disabled persons, as recognized by the United Nations, trumps the recognized rights of children. Finally, notwithstanding the existence of the United Nations Convention on the Rights of Persons with Disabilities , case authorities continue to hold that protection legislation is child-focused.

The trial judge was bound to follow the legislation and the approach set out by the Supreme Court of Canada and this Court. [ 43 ] It is also concerning that the trial judge, without giving the parties the opportunity to speak to it, relied upon a document, not argued or placed before him in evidence, as support for a new approach to intellectually disabled parents in child protection proceedings. This Court in Nova Scotia (Community Services) v. B.F. , 2003 NSCA 119 (leave to appeal denied, [2003] S.C.C.A.

No. 531) found that it was an error for a trial judge to rely upon a report on “system abuse” in a child protection proceeding in circumstances analogous to those before us. There, Fichaud J.A. wrote: [91] The concept of “system abuse” quoted from Routledge was central to the trial judge’s analysis of the key facts - ie. the reasons for the respondents’ failure to cooperate with the Agency’s initiatives. [92] The Routledge report was never entered into evidence. It was not referred to by any witness or by counsel at trial.

No notice was given to the Agency or its counsel that the Routledge report would be considered by the Family Court in the court’s reasons. Apparently the trial judge located the document independently after the trial. [93] This report was not a legal text. The trial judge used the report as an expert opinion. [94] The trial judge did not refer to the doctrine of judicial notice, or attempt to admit the Routledge paper under that doctrine. [ . . . ] [99] I am not commenting on the validity or otherwise of the “system abuse” concept, or its application to the respondents.

I am saying that the trial judge should not have based a central feature of his reasoning on a document which was not entered into evidence, and

which the parties had no opportunity to address. [ 44 ] It was inappropriate for the trial judge to support his call for a “different perspective” with a document arguably not properly before the court, but more importantly, a document upon which the parties had no opportunity to comment. [ 45 ] The trial judge’s “different approach” calls for a different legal standard when assessing the abilities of intellectually impaired parents to care for their children.

He suggests that their parenting ability ought to be compared to those of “similarly disabled parents”, to see whether they fall within “normal limits” for that comparator group. According to the trial judge, the Minister, her agents and witnesses, failed to do that comparison, and as a result, unfairly assessed the respondents’ ability to resume care of their children. [ 46 ] The trial judge’s use of a standard calling for a comparison to similarly disabled parents as part of a protection analysis is flawed. The Act contains no such standard.

In s. 22(2), the Legislature set out the circumstances which give rise to a finding that a child is in need of protective services. It reads: 22

(2) A child is in need of protective services where (

a) the child has suffered physical harm, inflicted by a parent or guardian of the child or caused by the failure of a parent or guardian to supervise and protect the child adequately; (

b) there is a substantial risk that the child will suffer physical harm inflicted or caused as described in clause (a); (

c) the child has been sexually abused by a parent or guardian of the child, or by another person where a parent or guardian of the child knows or should know of the possibility of sexual abuse and fails to protect the child; (

d) there is a substantial risk that the child will be sexually abused as described in clause (c); (

e) a child requires medical treatment to cure, prevent or alleviate physical harm or suffering, and the child's parent or guardian does not provide, or refuses or is unavailable or is unable to consent to, the treatment; (

f) the child has suffered emotional harm, demonstrated by severe anxiety, depression, withdrawal, or self-destructive or aggressive behaviour and the child's parent or guardian does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm; (

g) there is a substantial risk that the child will suffer emotional harm of the kind described in clause (f), and the parent or guardian does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm; (

h) the child suffers from a mental, emotional or developmental condition that, if not remedied, could seriously impair the child's development and the child's parent or guardian does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the condition; (

i) the child has suffered physical or emotional harm caused by being exposed to repeated domestic violence by or towards a parent or guardian of the child, and the child's parent or guardian fails or refuses to obtain services or treatment to remedy or alleviate the violence; (

j) the child has suffered physical harm caused by chronic and serious neglect by a parent or guardian of the child, and the parent or guardian does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm; (ja) there is a substantial risk that the child will suffer physical harm inflicted or caused as described in clause (j); (

k) the child has been abandoned, the child's only parent or guardian has died or is unavailable to exercise custodial rights over the child and has not made adequate provisions for the child's care and custody, or the child is in the care of an agency or another person and the parent or guardian of the child refuses or is unable or unwilling to resume the child's care and custody; (

l) the child is under twelve years of age and has killed or seriously injured another person or caused serious damage to another person's property, and services or treatment are necessary to prevent a recurrence and a parent or guardian of the child does not provide, or refuses or is unavailable or unable to consent to, the necessary services or treatment; (

m) the child is under twelve years of age and has on more than one occasion injured another person or caused loss or damage to another person's property, with the encouragement of a parent or guardian of the child or because of the parent or guardian's failure or inability to supervise the child adequately. 1990, c. 5, s. 22; 1996, c. 10, s. 1 . [ 47 ] Nowhere in s. 22(2) is the protection status of a child linked to the specific attributes of his or her parent or guardian. It is, however, clearly linked to the actions, failure to act, or inability to act of the adults responsible for the child’s care.

Whether a child is in need of protective services is based upon the real life, lived experiences of the child. Nowhere in that definition, or elsewhere in the Act , is the status of a child as being in need of protective services informed by the reason why their parents acted, failed to act, or have the inability to act in a particular manner. [ 48 ] We agree that the intellectual capacity of a parent is an important factor in implementing services to remediate problematic circumstances, and in some instances, evaluating the risk of future harm.

However, the Act does not contemplate a finding that a child is, or is not, in need of protective services, being based upon where his or her intellectually disabled parents fall within a comparison to parents with similar attributes. [ 49 ] We are satisfied that the trial judge applied an erroneous focus and legal standard to the issues before him for determination, most critically whether the children were in need of protective services as alleged by the Minister.

We are further of the view that the trial judge’s belief that a “different perspective” was warranted influenced his view of the evidence before him, particularly that offered on behalf of the Minister. On this basis alone, we would allow the appeal. There is however, benefit to addressing briefly, some of the

other issues raised by the Minister. Did the trial judge err when stating the burden of proof on the Minister was to a “clear, convincing and cogent” standard? [50] The Minister submits the trial judge inappropriately applied a heightened burden of proof to the evidence before him. The trialjudge briefly references the applicable standard twice in his reasons: [238] . . .The agency has the burden of proof. It is the civil burden of the proof. The agency must prove its case on a balance ofprobabilities by providing the court with “clear, convincing, and cogent evidence”.

And further: [263] I have considered all of the evidence before me. I am not persuaded, as at the hearing, that there is sufficiently clear, convincingand cogent evidence to meet the balance of probability standard to sustain the protection findings which are necessary to grant thepermanent care and custody application . . . [51] The Minister submits that the burden, as articulated by the trial judge, is uncomfortably close to one specifically rejected by theSupreme Court of Canada in F.H. v.

McDougall, 2008 SCC 53, and that the phrase “clear, convincing, and cogent evidence”, althoughused by the Supreme Court, was done so in a broader context. The Minister submits that the trial judge’s use of the phrase as a standalone burden, may signal a return to the now rejected heightened sufficiency of evidence. [52] In our view, the description of the burden as employed by the trial judge overly condensed the approach endorsed in F.H. Itrisks the re-implementation of a higher burden. [53] We think it appropriate to refer to the approach taken by the trial judge in Minister of Community Services v.

M.P., 2014 NSSC80. It articulates, more fully, the correct burden: [112] A proceeding pursuant to the Children and Family Services Act is a civil proceeding NS (MCS) v. DJM [2002] N.S.J. No. 368(NSCS). [113] The burden of proof is on a balance of probabilities, which is not heightened or raised because of the nature of the proceeding. F.H. v.

McDougall 2008 SCC 53 , [2008] 3 S.C.R. 41, the Supreme Court of Canada held at paragraph 40: Like the House of Lords, I think it is time to say, once and for all in Canada there is only one civil standard of proof at common law andthat is proof on a balance of probabilities. Of course, context is all important and a judge should not be unmindful, where appropriate, ofinherent probabilities or improbabilities or the seriousness of the allegations or consequences. However, these considerations do notchange the standard of proof.

And further at paragraph 45 and 46: To suggest that depending upon the seriousness, the evidence in the civil case must be scrutinized with greater care implies that in lessserious cases the evidence need not be scrutinized with such care. I think it is inappropriate to say that there are legally recognizeddifferent levels of scrutiny of the evidence depending upon the seriousness of the case. There is only one legal rule and that is that in allcases, evidence must be scrutinized with care by the trial judge.

Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. But again, thereis no objective standard to measure sufficiency. In serious cases, like the present, judges may be faced with evidence of events that arealleged to have occurred many years before, where there is little other evidence than that of the plaintiff and defendant. As difficult asthe task may be, the judge must make a decision.

If a responsible judge finds for the plaintiff, it musts [sic] be accepted that theevidence was sufficiently clear, convincing and cogent to that judge that the plaintiff satisfied the balance of probabilities test. [54] Although prudence called for a more fulsome description by the trial judge, on the record before us we are not satisfied that hemisapplied the burden and standard of proof. Did the trial judge err in his application of s. 22(2)(

k) of the Act? [55] In her pleadings and the submissions advanced at trial, the Minister specifically alleged that the children were in need ofprotective services by virtue of s. 22(2)(

k) of the Act. We repeat it for ease of reference: 22(2) A child is in need of protective services where (

k) the child has been abandoned, the child’s only parent or guardian has died or is unavailable to exercise custodial rights over the childand has not made adequate provisions for the child’s care and custody, or the child is in the care of an agency or another person and theparent or guardian of the child refuses or is unable or unwilling to resume the child’s care and custody; [56] Evidence was led, including from two expert witnesses, that the respondents were unable to resume care of the children. TheMinister says the trial judge failed to consider this ground as plead, and what minimal reference he made to s. 22(2)(

k) demonstrateslegal error. [57] The respondents submit this Court should reject the Minister’s concerns. They submit that the trial judge was not obligated toconsider s. 22(2)(

k) at all, as that

section can only ground a finding of protection in cases of parental abandonment. Here, they submit,there is no evidence the parents abandoned their children. [58] With respect, the respondents’ narrow

interpretation of s. 22(2)(

k) is flawed. A reading of the

section demonstrates that notonly a parent’s unwillingness to resume care of a child is included (an abandonment), but also a parent’s inability to do so. The provision

is intended to cover circumstances well beyond abandonment, also permitting a consideration of a willing parent’s ability to resume care. [59] In his reasons, the trial judge made minimal reference to s. 22(2)(k). The court’s treatment of this provision changed, materiallyin our view, from the oral decision, to that issued in writing. In his written decision, the trial judge says: [240] Regarding section 22(2) (b), (g), (ja), and (

k) of the CFSA, references to “substantial risk” means a real chance of danger that isapparent on the evidence. Accordingly, opinions or speculation regarding the future based on the past must be received with caution.Section 22(2) (

b) is linked to section 22(2) (

a) which makes reference to failure to supervise and adequately protect. [241] I note section 22(2) (

g) is actually a two-fold test. Not only must there be evidence of the kind of risk, as defined, but it must alsobe established the parent does not provide, or refuses, or is unavailable or unable to consent to services or treatment to remedy or alleviatethe harm. Similarly, allegations of risk linked to chronic and serious neglect must be linked to the status of services. [emphasis inoriginal] [60] However, a review of the oral decision reveals the trial judge’s analysis was originally more expansive, including a broaderconsideration of s. 22(2)(k). The bolded portions are those which were omitted from the written decision: I do want to mention section 22(2)(b), (g), (

j) and (

k) briefly, and we’ll say that the references to substantial risk we know, I know,means a real chance of danger that is apparent on the evidence. Accordingly, opinions or speculation regarding the future based on thepast must be received with some caution. Section 22(2)(

b) is linked to 22(2)(a), which make reference to failure to supervise andadequately protect. I note that section 22(2)(

g) is actually a two-fold test. That is important. So not only must there be evidence of the kind of risk I’vebeen alluding to or talking about, but it must be established that the parent does not provide or refuses or is unavailable to unable toconsent to services or treatment to remedy or alleviate harm. Similarly, allegations of risk linked to chronic and serious neglect must belinked to the status of services or status uptake. So the word “and” in section 22(2)(

g) and (

k) is certainly significant. [61] What is the authority for a trial judge to revise the content of their oral decision, particularly, after having issued orders thatflowed from their decision? It is acceptable and proper for a trial judge to edit their oral decision reduced to written form both forreadability and to catch typographical transcription errors. When editing, a judge should not change the substance of their rendered oralreasons. Public confidence in and the integrity of our justice system requires that judges avoid what might appear to be after-the-factjustification.

Appellate courts and the Supreme Court of Canada have confirmed these principles (See R. v. Teskey, 2007 SCC 267 andR. v. Arnaout, 2015 ONCA 655).

In Teskey, the Supreme Court of Canada said this about the potential negative fallout when reasons arealtered following the filing of a Notice of Appeal: [18] … if an appeal from the verdict has been launched, as here, and the reasons deal with certain issues raised on appeal, this maycreate the appearance that the trial judge is advocating a particular result rather than articulating the reasons that led him or her to thedecision. [62] In its supplemental factum, the Minister charts some 58 alterations the trial judge made to his oral decision.

Although theMinister expressed concern with many of the changes, she concedes the changes are not to the degree that it raises a judicialapprehension of bias, thereby rebutting the presumption of judicial integrity. We agree. That recognized, the Minister asked that we relyon the oral transcript when assessing the grounds of appeal or a material issue. We agree that is appropriate. There is authority for thisapproach – see R. v.

R.D.S., (NSSC), whose approach was not disturbed by the Court of Appeal ((1995), 1995 NSCA201 , 145 N.S.R. (2d) 284) or the Supreme Court of Canada (SCC), [1997] 3 S.C.R. 484). [63] In our view, the deletion of the reference to s. 22(2)(

k) from the oral to the written decision went beyond editing for grammar orease of comprehension. As such, we will consider the trial judge’s oral reasons as reflective of his analysis. [64] We are satisfied that the trial judge erred in his

interpretation of s. 22(2)(

k) in two regards. Firstly, the trial judge incorrectlyidentified s. 22(2)(

k) as a “substantial risk” provision, along with clauses (b), (

g) and (ja). It is not. Secondly, it is clear in the oraldecision that the trial judge was of the view that like (g), (

k) included a consideration of whether the parents were consenting to servicesor treatment to alleviate harm. (The trial judge had found the respondents to be willing to participate in services.) Sections 22(2)(

g) and(

k) are not analogous. Section 22(2)(

g) provides: 22(2) A child is in need of protective services where (

g) there is a substantial risk that the child will suffer emotional harm of the kind described in clause (f), and the parent or guardian doesnot provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm; [65] Section 22(2)(k), unlike (g), does not, as initially stated by the trial judge, include a consideration of parental engagement inservices. [66] Perhaps the trial judge’s misinterpretation of s. 22(2)(

k) accounts for his failure to provide an analysis, or determination, ofwhether the respondents had the ability to resume care of the children. As will be discussed further, there was substantial evidence,relevant to parental capacity, which was not referred to by the trial judge in his decision. We are concerned that this was more than thetrial judge not including a reference to that evidence in his decision. In this case, parental capacity was front and centre, and a failure toconsider that evidence as to the lack of capacity gives rise to a “reasoned belief” that the failure to do so affected his conclusion,permitting this Court’s intervention (Van de Perre).

Did the trial judge err in his application of s. 22(1) and (2) (

b) of the Act ? [ 67 ] The Minister says the trial judge erred in his application of s. 22(1) and (2) (

b) of the Act . These state: 22

(1) In this Section, "substantial risk" means a real chance of danger that is apparent on the evidence.

(2) A child is in need of protective services where (

b) there is a substantial risk that the child will suffer physical harm inflicted or caused as described in clause (a); [ 68 ] The Minister argues that the trial judge failed to undertake any analysis, as was required, as to whether the evidence established a substantial risk of physical harm to the children. She further alleged that the court’s brief comments regarding the assessment of risk discloses an approach inconsistent with the direction of this Court.

We agree with the Minister on both counts. [ 69 ] Similar to his approach to s. 22(2) (k), in the decision there is no analysis undertaken by the trial judge with respect to s. 22(2) (b). Given his finding that the children were not in need of protective services, it is implicit the trial judge concluded the children were not at substantial risk of physical harm. However, given the pleadings, and the evidence before the court, more was required than a blanket conclusion. [ 70 ] The trial judge’s view regarding the role of “the past” when assessing the existence of substantial risk is troublesome.

In his analysis, he stated that assessments of future risk, “based on the past must be received with caution”. This approach seems to be at odds with what the trial judge had earlier put forward as a “key point” gleaned from case authorities (paragraph [238]): • Past parenting history is also relevant as it may be used in assessing present circumstances. An examination of past circumstances helps the court determine the probability of the event reoccurring. The court is concerned with probabilities, not possibilities.

Therefore, where past history aids in the determination of future probabilities, it is admissible, germane, and relevant. [ 71 ] Evidence of past parenting has been described as “the primary evidence” upon which current and future circumstances can be assessed, and “highly relevant” to the future care of the child ( Nova Scotia (Minister of Community Services) v. S.Z. , 1999 NSCA 155 ; K.L.M. ). In the present case, there was ample evidence of past behaviour of both respondents which is relevant to their care of the children, and in particular the risk of physical harm.

However, the trial judge undertook no analysis, based on the evidence, relating to the alleged risk of physical harm to the children. His failure to do so is an error justifying intervention. What is the appropriate disposition? [ 72 ] Having concluded the trial judge erred, what should now flow from that conclusion? We have the option of ordering a new trial in the court below. Section 49(6) (

c) of the Act also permits this Court to make any order the court below could have made. The Minister has requested we proceed to assess the record, and submits that an order for permanent care for both children should result. [ 73 ] GCP and ASP are young children—now 2 and 4 years of age. They have been the subject of court proceedings for almost the entirety of their young lives. Because of the lengthy delays in completing both the original and final disposition hearing for ASP— settling his long term plan is seriously over the statutory timeline. Such delays are not ideal.

Given no party has raised this as an issue, we will say nothing further on the delay issue. [ 74 ] In our view, there should be no further delays in determining the long term care and custody arrangements for both children. Although the statutory timeline for the youngest child GCP has yet to expire, his well-being requires a timely decision from this Court. In short, these children deserve to have an outcome adjudicated sooner, as opposed to later. Given the children’s needs and their sense of timing, rendering a timely decision is important.

Finality is an important consideration in decisions pertaining to children. To remit for a retrial is not in their best interests. The thorough record from the court below permits a meaningful review by this Court. All parties had prepared for a permanent care hearing and advanced evidence and argument accordingly. This material enables us to adjudicate on the issues of critical importance to these children. [ 75 ] Having determined it is appropriate for this Court to undertake a consideration of the appropriate disposition in this case, we now turn to this analysis. [ 76 ] We have reviewed the entire record.

It is extensive and includes 19 comprehensive affidavits (15 filed on behalf of the Minister and 4 from the respondents), service provider reports/records, reports from two experts (Dr. Susan Hastey and Debra Reimer), and the entire transcript of both protection proceedings, including the viva voce evidence advanced over the course of a four day contested final disposition hearing. [ 77 ] In our view, there is ample evidence in the record to support a determination that the children remain in need of protection.

The only way to protect them adequately from risk of harm is by placing them in the permanent care and custody of the Minister. [ 78 ] The underlying protection concerns are serious and chronic. The maladaptive behaviours and deficient parenting skills of CKZ and GLP are well entrenched and unlikely to change for the positive, in any material way, in the foreseeable future.

In our view, the children, if left in the care of their parents, are at high risk for future harm. [ 79 ] Given the incorrect parent-centric lens through which the trial judge assessed the evidence, his finding that the children were not in need of protective services is seriously undermined. In our view, the record supports a finding that there is substantial risk of physical harm ( s. 22(2) (b)), and a finding that the parents are unable to resume the care of their children (k). [ 80 ] Based on the record, it is fair to say there is a considerable level of dysfunction in the parents’ personal relationship.

There is

serious and longstanding conflict between them. The parents acknowledge this; CKZ more candidly than does the children’s father. He is generally the person exploding with anger. The record supports a finding that the conflict is chronic and not likely to change. [ 81 ] The history of parental conflict predates apprehension of ASP. The parents have failed to protect and insulate both children from their harmful conflict.

In fact, the evidence discloses that the children were often at the epicentre of dangerous outbursts of uncontrolled anger, more so at the hands of GLP. [ 82 ] The record confirms the parents came to the Minister’s attention through multiple referrals. Concerns identified included arguing and fighting. Neighbours overheard the parents yelling and screaming and things being thrown around their apartment. This would often happen late in the night and often last for several hours.

The conflict seemed to escalate with the birth of ASP. [ 83 ] The parents acknowledged that they became frustrated when their baby would not sleep. There is evidence that GLP kicked in rung(

s) of ASP’s crib during the heat of parental conflict. On another occasion, he punched a hole in their bedroom wall. Baby ASP was not in the crib when the rungs were broken; however, during both incidents, he was very close by. There are other examples in the record of intense conflict and things getting smashed in the course of parental conflict: broken phones, broken stereo, clothing being thrown outside and baby clothes being burned. The parents acknowledged these incidents occurred, although they tended to downplay the seriousness of them. [ 84 ] The parents’ plan of care is to parent jointly.

CKZ was candid and clear that she is not able to parent on her own. She requires the support of her partner GLP. Furthermore, the parents have virtually no supportive family or friends to turn to for help or guidance. [ 85 ] The stability of the parents’ relationship is in serious question. Although they have been residing as a couple for several years, their relationship is volatile. It is marked with CKZ on several occasions throughout the protection proceedings expressing the desire to leave GLP.

The desire to leave was fueled by GLP’s unmanageable temper and the negative impact this had on CKZ and the children. Another underlying theme is jealousy. CKZ is concerned that her partner might be unfaithful to her. She has also expressed a concern that her partner is sometimes jealous of the attention she pays to her infant children. Although CKZ and GLP remained a couple at the time of trial, the long-term stability of their relationship is called into question. [ 86 ] The bursts of anger in the presence of the children are highly inappropriate and expose the children to harm.

These children are infants and do not have any means of protecting themselves if the behavior of their parents places them in danger. The record indicates that on several occasions CKZ was unable to subordinate her needs to ensure the safety of her children. On two occasions, during periods of conflict between the parties, CKZ decided to leave her partner. When faced with a choice of retaining the care of each of her young children, she put her needs first, not theirs.

Knowing that her children would likely be taken into care if she returned to her partner, she chose her relationship over the needs of her children. [ 87 ] More specifically, the first event happened when ASP was an infant. There was an incident of domestic violence between the parties which resulted in criminal charges against GLP. (They were later withdrawn and he entered into a peace bond.) This was a pivotal event, which led to ASP being taken into care. [ 88 ] CKZ faced a similar choice when GCP was just ten months old. She disclosed ongoing high conflict in the home and in the presence of the child.

She said it got to the point where she could not take it any more and wanted it to stop. She had kept this concern from the Minster and her supporting professionals. CKZ chose to leave her partner and go to a safe place. The Minister offered her support in this choice; however, CKZ quickly decided that she would return to her partner. This led to GCP being taken into care and the Minister retracting from her earlier position of considering a possible return of ASP to his parents’ care. Both parents later tried to minimize and retract from the seriousness of this event.

Based on the evidence of CKZ, it is clear that GCP was still being exposed to ongoing high conflict between his parents. [ 89 ] The parents say their relationship has improved and they fight less. Even accepting that to be the case, and accepting the parents did make some gains in addressing various protection concerns, conflict remains an underlying concern. Despite the provision of various services, which we will expand upon later, the risk of the children being exposed to damaging ongoing conflict remains high.

In fact, even in supervised access settings following their second child (GCP) being taken into care, there were occasions when GLP’s temper got out of control in the presence of the children. The Minister summarized these incidents in the September 1, 2015 plan of care as follows: … On June 9 th , [GCP] fell when reaching for his toy train and this caused his lip to bleed. [CKZ] soothed [GCP], however [GLP] became angry, picked up the train and threw it against the wall. Ms. Ascott advised [GLP] to calm down and he then left the room for a short period of time.

On August 20 th 2015, [GLP] advised Access Facilitator, Lorraine Ascott at the beginning of the visit that they did not have a good morning as they weren’t able to purchase cigarettes and were trying to find someone that could help them financially.

It was reported that [GLP] grew increasingly agitated during the visit. [GLP] became highly agitated when [GCP] fell with a toy in his hand and immediately grabbed the toy and threw it against the wall. [GLP] continued to be enraged, kicking chairs and slamming doors. [GLP] was yelling at the workers, threw the toy in the garbage and yelled at [ASP] stating, “you don’t have a father”. [GLP] was told to leave the church and continued to verbally assault the worker, the Pastor who was present in the church and continued to throw items.

The visit ended early and [CKZ] tried to keep the children away from [GLP’s] outburst while packing up their belongs. Although GLP minimized and quibbled with some of the Minister’s description, he acknowledged that inappropriate events did occur. [ 90 ] In her testimony, CKZ tried to retract from previous statements she made to the Minister about the gravity and frequency of the children’s exposure to conflict, yet she acknowledged it was still a problem. The following excerpts from CKZ’s cross examination testimony highlight the risk of ongoing conflict: […] Q.

So when I asked you earlier is it – if it was true that before this incident blew up, that you had – you’d had enough; that [GLP]

had – his behaviour had – was not good enough anymore, you didn’t like the hollering, the stomping the feet and all that stuff – you answered my questions about that earlier, and you agreed with me that that was something you had had enough of? A. Yes. Q. So it was true? A. Certain things was true and certain things I made up. Q. So the hollering was true? A. Yes. Q. And it was constant? A. Yes. Q. And it was yelling? A. Yes. Q. Swearing? A. Yes. Q. In the presence of the baby? A. Yes. Q. So you didn’t lie about that to anybody? A. No. Q. So it’s not all lies? A.

Some parts, like with what I said about like [GLP] was hollering at the baby since he was born; that was false. Q. But at that time, for quite a while before April, it was true? A. Certain things, yes. Q. Okay. So how long had it been going on for? A. Pretty much – it wasn’t just certain situations. It was mostly like arguments with our relationship. It didn’t have like – it wasn’t that bad. And pretty much our relationship – it was common things that we was arguing, mostly. Q. But you told me that you had had enough? A. All the time, yes. Q.

All right, so it had reached a level that you couldn’t tolerate anymore? A. Yes. Q. And I suggested to you earlier maybe that it had come to the point where it was every day? A. It wasn’t every day. Q. Well, then, you said that it was enough that you couldn’t tolerate it anymore? A. Yes. Q. So what does that – when does it get to the point where you can’t tolerate it anymore? A. Well, pretty much if it puts me – it had to – would take – if it was putting my life at risk, I couldn’t take it anymore, or if things got really out of control like – Q.

Well, you used the phrase you couldn’t put up with it anymore; was it – had it reached that point where something bad had happened? A. No. Q. But it was too often? A. It was happening more often.

[…] Q. So after baby [GCP] was taken into care, you certainly knew that the issues of – regarding [GLP’s] behaviour around you or around the baby was important again? A. Yes. Q. Because you’d raised them? A. Yeah. Q. And it certainly was bad, don’t you agree? A. Yes. Q. Whether you over exaggerated or not, it was still bad enough? A. Yes. Q. And like you said, you were hoping to bring [GLP]to attention; is that the best way to – A. Yes. Q. – describe it? A. Yes. Q. All right. So you’ve had access between the two of you since then? A. Yes. Q. Right?

And you’ve witnessed on – at least two occasions when [GLP] lost it again? A. Yes. Q. In the middle of access? A. Yes. Q. So it hasn’t gone away, has it? A. On certain things, yes, and he’s been controlling it a lot more, and it’s just – it wasn’t bad like how it used to be. It’s just the only thing that he does now is just when he gets upset, that he tries to leave the situation, but if someone keeps talking to him when he’s angry, that’s when he’ll explode. Q. So if someone disagrees with him on anything, that’s a problem, right? A. Yes. […] Q. So do you know – how long have your [sic] known [GLP] now? A.

I’d say about seven years. Q. And do you know why he gets so angry? A. Yes, I do. It’s just when thing are not being dealt with, that’s when he loses it. Like I can explain a little bit more; like if we report something and things ain’t getting dealt with that’s when he’ll lose it. Q. And why does he get angry, then, when he can’t quiet down baby [GCP]? A. Because – which – he was trying everything, and it’s just being – it’s like being a new father, pretty much there, that when he doesn’t calm the child down he gets frustrated, and then he feels like a bad father because he can’t calm him down.

And that’s what gets him frustrated. Q. And then he gets angry? A. Yes. […] Q. Has he always, in the seven years that you’ve known him, shown anger when he got frustrated? A. Yes.

[ 91 ] Past parenting history is informative when a court has to determine the probability that risk will continue. (See Nova Scotia (Minister of Community Services) v. S.Z. and K.L.M.) In the present case, given the entrenched history of conflict which is not resolved, there is a high probability it will continue. [ 92 ] The Minister also identified concerns of general neglect (including proper hygiene and regular medical attention for the children). Also the parents’ ability to manage their home and finances.

Although there are some lingering concerns, it is fair to say that the record demonstrates the parents did make gains with meeting the needs of their children and managing their household. That said, the more serious and overarching concern is with the parents’ ability and capacity to resume parenting of their children. In our view, the record is clear and persuasive: the parents lack the ability and capacity to resume safely the care of their children.

This is not likely to change. [ 93 ] Turning to the expert evidence: the Minister argued, as a ground of appeal, that the trial judge misused the expert evidence and his misuse caused an injustice to the children. We have not dealt with this as a separate ground of appeal. We need not because, as previously noted, we determined that the wrong lens in which the trial judge assessed the evidence tainted his view of the expert evidence. [ 94 ] As previously discussed in paragraphs 64 and 69, the trial judge erred in his analysis of s. 22(2) (

k) and he failed to conduct any analysis under s. 22(2) (b). While not challenging the trial judge’s findings on attachment, what is most problematic with his treatment of the expert evidence is his failure to consider their evidence as it relates to ss. 22(2) (

b) and (

k) of the Act . [ 95 ] Both experts recommended the children be placed in the permanent care and custody of the Minister. In reading his decision, it is obvious the trial judge took exception to the experts including final disposition recommendations in their respective reports. In child protection proceedings, it is both common and acceptable to see experts make recommendations that touch upon the “ultimate issue” before the Court. (See Children’s Aid Society of Pictou County v. A.J.G. , 2009 NSFC 26 and H.A.N.) That said, recommendations from experts alone do not carry the day.

The admissible and relevant evidence of experts is to be considered with the other evidence. In the end, it is up to the trial judge (and in this case this Court as we are delving into the record) to determine the ultimate outcome or disposition. [ 96 ] In our assessment of the ongoing risk factors and the ability and capacity of the parents to resume parenting, we have considered the expert evidence. [ 97 ] We now refer to the expert testimony of Dr. Hastey and Ms. Reimer.

In our view, their opinions are insightful and generally supported by the other evidence, including the evidence of the parents themselves. [ 98 ] In her expert report dated September 17, 2015, Ms. Reimer stated: Children should be kept out of the conflicts between their parents. … It is extremely concerning to me that these children are continually being subjected to conflict and violence, in spite of the fact access is supervised . While [GLP’s] volatility may not show itself every visit, it happens frequently enough that stress levels are likely to be heightened during any access.

There is a great deal to this case. However, when looked at in its entirety, I am left with many areas of concern. First is the continued level of anger and violence expressed by [GLP]. While my job is to provide an assessment with regard to [CKZ], it would be irresponsible of me not to consider [GLP’s] influence and involvement in her life. She has been clear that she is unable to care for the children without [GLP’s] support. Dr.

Hastey has been clear that she believes a child placed in the full-time care of a parent presenting with the behavioural issues and attitudes of [GLP] would be at risk of social, emotional and physical abuse and would, over the long term, be a victim of chronic neglect .

As importantly, collaterals have been clear that they do not believe [CKZ] is able to choose her children over [GLP] which means his present [sic] must be taken into consideration and significantly impacts any recommendations made by this assessor. […] [CKZ] said she researched roughness and discovered that children act out when they are stressed, yet she does not appear to make the connection between [GLP’s] explosive behaviours and the impact it will have on the children.

She identified that [ASP] becomes frightened, or scared when he sees his parents upset but does not appear to make the connection here either. … I am concerned about how she navigates his personality. And, [GLP] is aware of how important the children are to [CKZ] yet he continues to act in a manner that jeopardizes their return and [CKZ] appears to feel she cannot make it without him.

Lastly, while what [CKZ] wants for her children is admirable, to work hard, save money and treat a girlfriend good , I question whether these are things the children would learn in an environment where nether [sic] parents works [sic], where money management is a constant issue and where the children are exposed to [GLP’s] treatment of their mother. [emphasis in original] [ 99 ] Dr. Hastey completed her assessment of parental capacity in November 2013. In

summary she concluded: This assessor has found very few beliefs or positive parenting behaviors in regard to the assessment of [CKZ] and [GLP]. Few positives were ob

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