Nova Scotia (Community Services) v. V.A.H., 2019 NSCA 72

Nova Scotia Court of Appeal Citation: Nova Scotia (Community Services) v. V.A.H. , 2019 NSCA 72 Date: 20190829 Docket: CA 486201 Registry: Halifax Between: Minister of Community Services Appellant v. V.A.H. and B.W.H. Respondents Restriction on Publication: s. 94(1) of the Children and Family Services Act Judge: The Honourable Justice Peter M. S. Bryson Appeal Heard: June 14, 2019, in Halifax, Nova Scotia Subject: Family Law. Child Protection. Use of International Conventions. Fresh Evidence.

Summary: Judge dismissed Minister’s application for permanent care order of two young children with psychological and behavioural difficulties whose parents experience significant intellectual disabilities. The Minister applied to admit fresh evidence and appealed arguing that the judge erred: by relying upon the United Nations Convention on the Rights of the Child to supplement the Children and Family Services Act , S.N.S. 1990, c. 5 ; in her consideration of voluntary services and the Minister’s Agency Plan; and by giving reasons revealing material error that denied the Minister a meaningful right of appeal.

Result: Appeal allowed. Fresh evidence admitted. Protection Order granted. There was no basis in this case to use the UN Convention to supplement the Act regarding services. The judge erred in her consideration of the Agency Plan which did not relieve her of the obligation to decide the matter in the children’s best interests. The judge made clear and material errors of fact in failing to consider the uncontroverted evidence that the parents’ disabilities coupled with their children’s needs place the children at substantial risk of physical and emotional harm.

It was in the children’s best interests to grant a permanent care order. 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 17 pages. Nova Scotia Court of Appeal Citation: Nova Scotia (Community Services) v. V.A.H. , 2019 NSCA 72 Date: 20190829 Docket: CA 486201 Registry: Halifax Between: Minister of Community Services Appellant

v. V.A.H. and B.W.H. Respondents Restriction on Publication: s. 94(1) of the Children and Family Services Act Judges: Farrar, Oland and Bryson, JJ.A. Appeal Heard: June 14, 2019, in Halifax, Nova Scotia Held: Appeal allowed, per reasons for judgment of Bryson, J.A.; Farrar and Oland, JJ.A. concurring Counsel: Peter McVey, Q.C., for the appellant Jessica Drohan-Burke, for the respondent V.A.H. Shawnee Gregory, for the respondent B.W.H. 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. Prohibition on 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: INTRODUCTION [ 1 ] The Minister of Community Services appeals the unreported decision of Family Court Judge Marci Lin Melvin by which she returned custody and care of two children to their parents after their apprehension by the Minister. [ 2 ] The respondent parents, V.H. and B.H., have two young boys who are 7 and 10.

The boys experience a wide array of physical, mental and emotional challenges that create complex needs requiring specialized treatment, care and supervision. Their parents have intellectual disabilities including both cognitive and adaptive ability challenges which compromise their practical capacity to live independently as adults. [ 3 ] On December 2, 2016, the children were taken into care.

On December 9, 2016, interim care and custody was granted to the Minister. [ 4 ] On February 27, 2017, the children were found to be in need of protective services owing to a substantial risk of physical and emotional abuse their parents were unable to address ( s. 22(2) (b), (

f) and (

g) of the Children and Family Services Act , S.N.S. 1990, c. 5 ). The Court also found that the children had already experienced emotional abuse. [ 5 ] Ultimately, a disposition hearing was conducted on January 23 and 24, 2019. The special needs of the children were not in doubt. At issue was the capacity of the parents to provide for the care of their children. Owing to the expiry of the statutory timeframes for disposition orders, the judge only had two options: grant the order or dismiss the application.

The judge dismissed the Minister’s application for a permanent care order, while finding that the children and their parents required ongoing and necessary services. [ 6 ] The Minister says that the judge failed to undertake an examination of the needs or required care of the children or compare those needs with the capacity of their parents to meet them.

[7] Following the judge’s dismissal of the Minister’s application, she granted a brief stay. This Court also granted a stay pendingappeal (2019 NSCA 26). As a result, the children remain in the custody of the Minister, who now appeals claiming that the judge erred: (

a) in the use she made of International Conventions; (

b) in her

interpretation of the voluntary services provisions of the Act; (

c) in the approach she took to the Minister’s Agency Plan; and (

d) by giving reasons which reveal material error and deny the Minister a meaningful right of appeal. [8] The Minister asks that the judge’s decision be overturned and that this Court rule on the merits. In support of the appeal, theMinister has made a fresh evidence application. [9] For reasons that follow, the fresh evidence should be admitted and the appeal should be allowed. The admissibility of thefresh evidence will be addressed first, followed by the four grounds of appeal and concluding with appropriate disposition.

The fresh evidence should be admitted [10] The Minister applies to adduce fresh evidence from social worker, Jessica Kressebuch and foster parent, D.H. The respondentsdo not oppose the admission of the fresh evidence which this Court can receive as a matter of discretion, keeping in mind the permissivelanguage of s. 49(5) of the Act and Civil Procedure Rule 90.47. As this Court said in Nova Scotia (Community Services) v.

T.G., 2012NSCA 43: [77] … Admission is governed by four factors: (1) whether there was due diligence in the effort to adduce the evidence at trial; (2)relevance to the issue at trial; (3) credibility of the new evidence; (4) whether the evidence could reasonably have affected the result. … [11] The fresh evidence discloses that the children continue to have very high needs for special services, monitoring and other formsof intervention. The older child resides in a structured group home with a high level of supervision provided by qualified staff.

Thechild’s challenging behaviour includes self-harm, physical and verbal aggression and sexualized behaviours. The younger child residesin a foster home and requires constant supervision. The evidence goes on to describe the inability of the parents to fully appreciate theneeds of their children and provide for those needs. More will be said about this evidence later. [12] The due diligence criterion for admission of fresh evidence is diminished in this case because the evidence focuses on theongoing nature of the children’s needs and behavioral challenges as well as their parents’ inability to meet them.

The evidence is clearlyrelevant. Both the children’s needs and parental capacity affect the propriety of an order for permanent care. There are no credibilityissues with the affiants who were not cross-examined. There is no question that the evidence should be received by the Court, keeping inmind the Supreme Court’s acknowledgement of the “importance of having accurate and up-to-date information on children whose fateoften hangs on the determination by judges of their best interests” (Catholic Children’s Aid Society of Metropolitan Toronto v. M.C., (SCC), [1994] 2 S.C.R. 165 at p. 188).

The judge erred in her use of International Conventions [13] The Minister complains that the mother cited international law and invited the court to apply that law in this case in support ofan argument that the children be returned to her care, but with extensive services for herself and her children.

The Minister says thiserroneous approach is exemplified by the following passage from the judge’s decision: United Nations Conventions Counsel for V.H. argued with respect to the United Nations Convention on the Rights of Persons with Disabilities, and Convention onthe Rights of the Child: “Much of the Minister’s case focuses on the … [children’s] … complex needs and on the Minister’sperception their parents are unable to meet those needs due to their own disabilities … Canada’s International legal obligationsstate, on no uncertain terms, “in no case shall a child be separated from parents on the basis of a disability of either the child or oneor both of the parents” (Convention on the Rights of Persons with Disabilities).” [original emphasis] […] Combining

section 13 of the Children and Family Services Act with

Article 23, would ensure the services required by V.H. to assisther to raise her children and would be in the best interests of the children. [emphasis added] […] Clearly this blending is befitting V.H. and her children. [14] The judge augmented s. 13 of the Act with the International Conventions described.

Section 13 of the Act provides: Services to promote integrity of family 13

(1) Where it appears to the Minister or an agency that services are necessary to promote the principle of using the least intrusivemeans of intervention and, in particular, to enable a child to remain with the child’s parent or guardian or be returned to or placed in thecare of a parent or guardian of the child, the Minister and the agency shall take reasonable measures to provide services to families andchildren that promote the integrity of the family.

(2) Services to promote the integrity of the family include, but are not limited to, services provided by the agency or provided by otherswith the assistance of the agency for the following purposes:

(

a) improving the family’s financial situation; (

b) improving the family’s housing situation; (

c) improving parenting skills; (

d) improving child-care and child-rearing capabilities; (

e) improving homemaking skills; (

f) counselling and assessment; (

g) drug or alcohol treatment and rehabilitation; (

h) child care; (

i) mediation of disputes; (

j) self-help and empowerment of parents whose children have been, are or may be in need of protective services; (

k) such matters prescribed by the regulations. [Emphasis added] [15]

Section 13 is incorporated by reference into

section 42. Section 42(2) of the Act required the judge to determine whetherservices had been attempted and failed or would be inadequate to protect the children, but she made no finding. Absent a judicial review,the judge did not have authority to displace the discretion of the Minister respecting the provision of services in accordance with s. 13 ofthe Act.

Extensive services had been provided to the parents and children over several years. [16] There are obvious constitutional reasons why international norms and obligations do not have the force of law in Canada unlessthey enjoy legislative sanction in this country. Nevertheless, various principles may make international conventions or treaties relevantto the

interpretation of domestic legislation. [17] The Supreme Court has used international conventions as extrinsic aids to interpret domestic legislation: (

a) where domestic legislation has been enacted to give effect to an international agreement, (National Corn Growers Assn. v.Canada (Import Tribunal), (SCC), [1990] 2 S.C.R. 1324, pp. 1371-1372); (

b) where there is ambiguity in legislation or to give context if the legislation does not preclude reference to an internationalobligation (R. v. Hape, 2007 SCC 26; Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2S.C.R. 817) (

c) in delineating the breadth and scope of Charter rights, (Canadian Foundation for Children, Youth and the Law v. Canada(Attorney General), 2004 SCC 4); and (

d) in deciding whether to recognize a principle of fundamental justice, (Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62). [18] The majority in Baker said that “values reflected in international human rights law may help inform the contextual approach tostatutory

interpretation and judicial review” but that interpretative assistance cannot displace clear statutory language (Hape, ¶53). Thetask of the court is to interpret the legislation, not supplement it with a judicial preference justified by generic “values”. For example, inthis case, the best interests of a child are not merely a described “value”, but acquire concrete meaning from the legislatively prescribedconsiderations that must be taken into account (s. 2 of the Act). [19] The judge does not explain how international conventions inform s. 13 of the Act.

In this case, there is no foundation forallowing the United Nations Convention on the Rights of the Child to intrude on the statutory language of the Act which it was the dutyof the trial judge to apply. Although not determinative, the Minister adds that the Act predates ratification of the Convention by Canadaand should not be construed as an attempt to conform with a Convention not yet approved by the Government of Canada or theProvince. [20] The judge decided that she would consider the Convention “[f]or

section 13 purposes”. She said that both Conventions would“sit as silent guardians” – whatever that may mean. But then she invited the “silent guardians” to speak by invoking them:

Section 13 of the Act combined with

Article 23 of the United Nations Convention on the Rights of the Child allows for services to be putin place, pursuant to the above, to ensure the best interests of these children are met. (p. 8) [21] The judge erred in law in her problematic importation of international conventions to impose unidentified duties on the Ministernot described in the Act. This is apparent from her distinguishing this Court’s decision on L.L.P. v. Nova Scotia (Community Services),2003 NSCA 1 in which this Court observed: “The Act does not contemplate that the Agency shore up the family indefinitely” (¶25).

Thejudge brushed aside L.L.P. because in that case the Court had not been invited to apply the UN Convention on the Rights of the Child. She does not say why such an invitation would have been accepted or implemented: In Nova Scotia (Minister of Children Services) v. L.L.P., supra, the Court of Appeal stated: “The Act does not contemplate that theAgency shore up the family indefinitely.” The case at bar can be distinguished from L.L.P., however, in that the Court of Appeal in

L.L.P. lacked invitation to consider the Children and Family Services Act in conjunction with

Article 23 of the Convention of the Rights of the Child. Read in harmony,

section 13 of the Act and

Article 23 of the Convention, particularly 23(3), ensure the best interests of a child with special needs will be met to allow that child to achieve “… the fullest possible social integration, and individual development.” [ 22 ] The judge gives the impression that by invoking International Conventions, s. 13 services could be indefinitely extended, notwithstanding this Court’s decision in L.L.P. : [25] The goal of “services” is not to address the parents’ deficiencies in isolation, but to serve the children’s needs by equipping the parents to fulfill their role in order that the family remain intact.

Any service-based measure intended to preserve or reunite the family unit, must be one which can effect acceptable change within the limited time permitted by the Act. If a stable and safe level of parental functioning has not been achieved by the time of final disposition, before returning the children to the parents, the court should generally be satisfied that the parents will voluntarily continue with such services or other arrangements as are necessary for the continued protection of the children, beyond the end of the proceeding. Ultimately, parents must assume responsibility for parenting their children.

The Act does not contemplate that the Agency shore up the family indefinitely. [Emphasis added] [ 23 ] The judge’s consideration of s. 13 in this case should have been unencumbered by any reference to international law. Moreover, as we shall see, the judge’s focus on s. 13 itself was an error of law affecting her disposition analysis, discussed further below.

The judge erred in her treatment of the Minister’s Agency Plan [ 24 ] Although it is not entirely clear what role the Agency Plan played in the judge’s decision, she was highly critical of the currency of the Plan and of the effectiveness of some of the support services provided to the parents. The judge observed: The Plan of Care was dated March 20, 2018. The hearing was January 24th and 25th, 2019. No updates or revisions of the original Plan of Care were filed with the Court, even though the family dynamic changed during that time.

The jurisprudence is clear: the Minister bears the burden of proving the existence of a current and continuing need for protection. … Counsel for V.H. argued that due to the outdated Plan of Care, numerous portions are no longer accurate and the

summary of services, resources, and the general state of affairs have become stale with age. [ 25 ] The judge elaborated on her criticisms: Since the Plan of Care was filed, there has been a revolving cavalcade of protection and social workers assigned to this family … The Court finds the social workers for the Minister have had little to no interaction with the Respondents during the last quarter of this proceeding and there is little evidence to suggest the Minister’s social workers engaged with B.H. in any meaningful way since … approximately six months ago. … An application for Permanent Care should not be considered a slam dunk.

Only in the most profound cases of abuse can an Agency ever be fairly certain of such an order. … [ 26 ] Given the numerous adjournments in this case, it is unsurprising that the initial plan of the Minister became dated. That Plan was for a trial scheduled to start May 2018; but which was adjourned to August 2018; then to November 2018; and finally to January 2019. [ 27 ] Whether it would have been a counsel of prudence to file an amended Plan does not displace the court’s duty to ascertain the children’s best interests and, in particular, whether they remained at risk for harm ( D.R. v.

Family and Children’s Services of Kings County , 1992 NSCA 37 ). As Justice Chipman noted in D.R. : While the agency's plan must comply with s. 41(3), the emphasis must be on substance rather than on form. Moreover, even if a plan were found wanting, the Family Court judge must exercise other available options than returning the child to the parents or guardian, if that course is not in the best interests of the child. That is the paramount consideration in all proceedings and matters pursuant to the Act . [ 28 ] The real question is whether the criteria for a permanent order were met in this case.

This brings us to the final ground of appeal. The judge gave reasons revealing material error, denying the Minister a meaningful right of appeal [ 29 ] Respectfully, this ground appears to confuse material error with reasons too poor to assess material error. Rather, the judge’s decision is unsupported by the evidence and so discloses a clear and material error of fact. [ 30 ] The Minister reminds us that the children were found in need of protective services on February 27, 2017 because they had suffered emotional abuse and remained at substantial risk of physical and emotional abuse.

The Minister criticizes the judge’s legal conclusions as “uncluttered by any reference to the evidence before her”. She argues strenuously that the judge materially erred in failing to consider the evidence respecting the physical, mental and emotional needs of the children as well as evidence respecting the appropriate care or treatment of those needs. She submits that those oversights constituted material errors requiring this Court to make the assessment which the judge failed to make, citing Van de Perre v. Edwards , 2001 SCC 60 , ¶15 and Nova Scotia (Community Services) v.

C.K.Z. , 2016 NSCA 61 , ¶66. [ 31 ] Although the judge comments that things had improved since the children were initially taken into care, she makes no reasoned finding respecting a substantial risk of physical or emotional harm: There is no doubt that these children and the parents will require support. Even the foster parents have had support and with that, they were not able to care for E.C. and he was removed from there [ sic ] care and placed in a group home.

[…]

Section 13 of the Act combined with

Article 23 of the United Nations Convention on the Rights of the Child allows for services to be putin place, pursuant to the above, to ensure the best interests of these children are met. The Court finds that the Minister has not proven on a balance of probabilities that there exists a real chance of danger that is apparent onthe evidence. The Court finds that an order for Permanent Care is not in the best interests of these children. [32] The judge’s decision is a conclusion without an explanation.

For example, how a child whom a highly competent foster parentcannot care for and who has been placed in a group home can be returned to his parents, who have serious challenges of their own, withthe incantation of s. 13 of the Act and a United Nations Convention is a complete mystery. [33] The judge did not engage the evidence concerning the inability of the parents to meet the needs of their children and anysubsequent change to that lack of capacity. Nor did she consider the previous findings that the children were at risk of physical andemotional harm.

The judge simply provided conclusory summaries without connecting them to any reduced risk to the children: The Court finds there is significant evidence that the parents have worked hard to ensure their lives are better, they communicate better,and they are more stable than they were when the children were taken into care.

Further, the Court finds that the Respondent mother has supports and services in place and her evidence is that she will continue withthose supports and services should the children be returned to her care. […] The Court finds the Respondent mother has demonstrated her ability to live independently and properly manage her home on her own.

The Respondent father’s evidence is he believes the plan is adequate to protect the children from harm and they are no longer children inneed of protective services. [34] The evidence does not support these findings. [35] On March 18, 2019, V.H. informed the family support worker, Brandace Hodder, that:

a) She did not want both children to be placed immediately in her care because she wanted to transition the older child home first, withthe younger to follow.

b) She needed more time to organize services which she and the children required. [36] V.H. has expressed a desire both to work part-time, but also to be at home. In the event that she is away from home, sheindicates that B.H. could be the children’s caregiver. [37] The judge concluded: The Court finds, given the changes the Respondents have made, it is in the best interests of the children to have another chance for aloving connection and bond with their mother.

The alternative is an uncertain future in Permanent Care, which is not in these children’sbest interests. [38] There is no analysis of whether the children remain at risk of harm or how any changes made by their parents have mitigatedthose risks. Certainly, the judge was satisfied that the children had been at risk.

The judge earlier found that the children’s needs werebeyond their parents’ capacity to meet: The wheels fell off the bus for this family and as a result, the Agency determined the Respondents were not able to meet the demands ofparenting, were unable to properly manage their home, could not provide structure and routine for the children, and further, could notmanage the children’s [behaviours].

An application to take the children into care was filed with the Court on December 7, 2016. [39] As we shall see, the evidence disclosed that while both parents were cooperative with the provision of services, the progressmade did not materially reduce the risks already identified. Disposition [40] When a trial judge fails to address evidence that is material to a finding of the need for protective services, the appeal court maydo so (S.R. v. Nova Scotia (Community Services), 2012 NSCA 46, ¶22-27).

Section 49(6) of the Act allows this Court to make any orderthat the court appealed from could have made. [41] In S.R., this Court referred, at para. 27, to its earlier decision in Nova Scotia (Minister of Community Services) v.

B.M. (1998),1998 NSCA 132 , 168 N.S.R. (2d) 271: [25] While some of Judge White's observations arguably related to this issue, unfortunately he failed to review the evidence or make anyfindings, as required by the Act, respecting the critical issue before him - namely, whether the Agency established that the children werein need of protective services pursuant to s. 22. […] [49] It is necessary, therefore, to review the evidence to determine whether the Agency, at the protection hearing, met the burden ofproof imposed on it, namely to establish on the balance of probabilities that the children, or one or more of them, were in need ofprotective services.

The Appeal Court made a finding that the children were in need of protective services as defined by s. 22(2)(

b) of the Act.

Are the children in need of protective services? [ 42 ] To answer this question, it is necessary to consider both the needs of the children and the capacity of their parents to meet them. [ 43 ] As previously described, the children had already been found in need of protective services within the meaning of s. 22 of the Act , owing to a substantial risk of physical and emotional harm, and a finding that they had suffered emotional harm. The judge was obliged to determine if this was still so. [ 44 ] The additional relevant statutory provisions in this case are: Disposition order 42

(1) At the conclusion of the disposition hearing, the court shall make one of the following orders, in the child’s best interests: (

a) dismiss the matter; […] (

f) the child shall be placed in the permanent care and custody of the agency, in accordance with

Section 47.

(2) The court shall not make an order removing the child from the care of a parent or guardian unless the court is satisfied that less intrusive alternatives, including services to promote the integrity of the family pursuant to

Section 13, (

a) have been attempted and have failed; (

b) have been refused by the parent or guardian; or (

c) would be inadequate to protect the child. [ 45 ] The evidence was that the parents never progressed beyond supervised access to their children. As previously described, the judge made no clear finding. But her acknowledgment that the parents would need the “assistance of the state”, relying on s. 13 of the Act and the United Nations Convention on the Rights of the Child, suggests that services within the timelines of the Act have failed. [ 46 ] Aside from adoption, the Act requires that these circumstances be considered when determining a child’s best interests: 3

(2) Where a person is directed pursuant to this Act, except in respect of a proposed adoption, to make an order or determination in the best interests of a child, the person shall consider those of the following circumstances that are relevant: (

a) the importance for the child’s development of a positive relationship with a parent or guardian and a secure place as a member of a family; (

b) the child’s relationships with relatives; (

c) the importance of continuity in the child’s care and the possible effect on the child of the disruption of that continuity; (

d) the bonding that exists between the child and the child’s parent or guardian; (

e) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs; (

f) the child’s physical, mental and emotional level of development; (

g) the child’s cultural, racial and linguistic heritage; (ga) the child’s sexual orientation, gender identity and gender expression; (

h) the religious faith, if any, in which the child is being raised; (

i) the merits of a plan for the child’s care proposed by an agency, including a proposal that the child be placed for adoption, compared with the merits of the child remaining with or returning to a parent or guardian; (

j) the child’s views and wishes, if they can be reasonably ascertained; (

k) the effect on the child of delay in the disposition of the case; (

l) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent or guardian; (

m) the degree of risk, if any, that justified the finding that the child is in need of protective services;

(

n) any other relevant circumstances. [ 47 ] The determinative criterion in this case is (f), because the children’s needs and the ability of their parents or the Minister to meet them are central for them. [ 48 ] If children remain in need of protective services at the time of final disposition, the matter cannot be dismissed: N.J.H. v. Nova Scotia (Community Services) , 2006 NSCA 20 , at para. 20 . Needs of the children [ 49 ] In October of 2017, the IWK Health Centre Genetics Clinic diagnosed the younger child who was then five with “Fragile X syndrome”, which causes intellectual disability in boys.

Symptoms include language delays, behavioural problems, autism, autism-like features, hyperactivity and delayed motor development. Symptoms vary and may not all be present or present in the same degree in all children with this syndrome. [ 50 ] The older child has been diagnosed with attention deficit hyperactivity disorder, predominantly inattentive type and hyperactive- impulsive type, conduct disorder and oppositional defiance disorder.

Psychologist Toni Campagnoni opined that the older child is hyper-vigilant, and experiences sensory sensitivities which appear to be principally caused by an unidentified trauma. Ms. Campagnoni advised the older child required stability and predictability, with ongoing therapy to work on sensory reactions, understanding of emotions and the establishment of healthy relationships.

In December 2017 the older child’s access visits with his father were temporarily suspended owing to the young boy’s acting out behaviours. [ 51 ] By September 2018, the older child was an increasing behavioural challenge at school and in his foster home. By November 2018, this behaviour escalated to an apparent assault on his younger brother. He was placed in a special child-care facility. By trial, the older child still exhibited aggressive and defiant behaviour and hyperactivity.

Parental capacity [ 52 ] In her February 15, 2018 Affidavit, social worker Kendra Fevens summarized the concerns about the parents’ capabilities to meet their children’s needs: 15. There has been lack of progress with both parents being able to safely meet the needs of both children during access visits. The children have different types of high needs: [the elder child’s] mental health and behavioural, while [the younger child] has been diagnosed with Fragile X, causing intellectual disability and Autism.

Given the high needs of each child and the parent’s intellectual disabilities the Agency has determined that the parents, though willing and engaged in services, are unable to safely meet the children’s needs and the level of risk to the safety and wellbeing of the children has not been reduced. The Agency is also satisfied that these circumstances are unlikely to change within a reasonable period of time and certainly not before a final disposition decision must be made.

As a result, the Agency is seeking an order for Permanent Care and Custody for the children. [ 53 ] The parents propose that V.H. be the primary caregiver, not the father. Nevertheless, Kendra Fevens noted as of July 2018: While Ms.

H. is having some success with preparing for and managing the children during fully supported access visits, she has not demonstrated that she is able to independently parent her children. … The Agency continues to be of the view that V.H. does not have the capacity to parent her children on a full time and independent basis. [ 54 ] Brandace Hodder is a family support worker who had been working with V.H. and B.H. since February of 2017.

She assumed family support responsibilities, in particular, helping them prepare for access visits with their children. [ 55 ] In her July 2018 affidavit, Brandace Hodder, expressed safety concerns about access visits. One involved having the older child assist with cooking and placing him at risk of being burned by the stove. In a second incident, V.H. cooked French fries together with a chicken in a plastic container in the stove. When questioned what she was doing, V.H. explained she was cooking the fries and heating the chicken. Ms.

Hodder then explained to her that the plastic container in the oven would melt and could start a fire. [ 56 ] Ms. Hodder described other instances of V.H.’s apparent inability to recognize and respond to safety risks to her children. In each case, each child entered and remained on a public street without reaction or intervention by V.H. [ 57 ] Ms. Hodder concluded: It is obvious to me that V.H. and B.H. both love their children.

Unfortunately, from my observations, it appears that neither parent has the ability to provide for the needs for [of] their children without supervision. … [ 58 ] The children’s father, B.H., experiences high anxiety. Psychological testing reveals that his cognitive abilities are impaired. His General Intellectual Ability places him in the fifth percentile (95 percent of his peers score higher). He meets the criteria for an Intellectual Disability as defined by DSM-V.

When assessing “Intellectual Disability”, one looks not simply at score results for “Intellectual Ability” but also “adaptive ability”, which is the capacity of a person to function in the community, manage a home, health, and money. B.H. was found to be intellectually disabled in this sense. [ 59 ] Sheila Bower-Jacquard is a psychologist. She commented on B.H.’s “fluid reasoning” in this way: The fluid reasoning is more of a non-verbal way of learning to see how that person approaches things. … This is where the challenge comes in for Mr.

H. … When he learns something, it’s hard for his brain to let him say “oh, this is very similar to that, I could apply that”. (AB page 283) [ 60 ] The children’s mother, V.H., is in the second percentile of general intellectual ability (98 percent of her peers score higher). She

meets the criteria for DSM-V Intellectual Disability (Intellectual Development Disorder). V.H. also has significant limitations with respect to “fluid reasoning”. According to Ms.

Bower-Jacquard, V.H. will require “significant support” to live and work independently as an adult. [ 61 ] As the Minister’s Agency plan notes, by March 20, 2018: While a great deal of progress has been made with regards to the parents meeting the children’s physical needs in the [access] visits, both parents continue to struggle to manage [the children’s] behaviour and struggle with meeting the emotional needs of both children during joint visits.

The parents have demonstrated they cannot meet the physical and emotional needs of their children without continuous prompting, intervention and support from the Family Support Worker. The goals of this service/support have not been met by either parent. [ 62 ] The trial judge does not address, much less discuss, any of the Minister’s evidence with respect to the safety of the children and their parents’ capacity to ensure their safety. Her comments on improvements made by the parents are confined to their domestic circumstances.

Despite some progress, there was no evidence that V.H. could parent two challenging children alone or with B.H.’s assistance. Although V.H. and B.H. love their children, they lack the insight to accommodate their children’s physical and emotional needs. In particular, V.H. as the proposed primary custodial parent, does not anticipate or mitigate obvious risks to the physical safety of her children. On the record before her, the trial judge should have granted the permanent care order sought by the Minister.

The fresh evidence [ 63 ] This is the most recent evidence of the children’s needs and the capacity of their parents to meet them. In brief, there has been insufficient improvement to justify any finding other than that the children continue to be in need of protective services. [ 64 ] The fresh evidence discloses that the older child continues to reside at the youth centre, and the younger with foster parent, D.H. D.H. brings the younger child to the youth centre weekly for access visits. The older child has also had overnight/weekend access visits with D.H.

Both parents have supervised access with each child. [ 65 ] The older child, who continues to reside in the youth centre, remains a behavioural challenge and V.H. is unable to manage him. He demonstrates severe aggression—both verbal and physical, self-harming behaviour, sexualized actions or verbalizations, and runs away from caregivers. Between January 2019 and April 2019, inhouse caregivers noted 8 incidents of self-harm by the older child, 19 incidents of verbal aggression, 21 incidents of physical aggression, and 10 incidents of sexualized behaviours or verbalization.

The director of the youth centre described the older child as “quantitatively the most aggressively active child currently in our programme”. [ 66 ] This year the older child has been seeing a child psychiatrist and has been participating in services and programing provided at the youth centre designed to mitigate some of the behaviours already described. Unfortunately, B.H. informed the older child that he had a court appearance on March 28.

The child’s behaviour deteriorated and he experienced a panic attack. [ 67 ] The younger child, who has been diagnosed with Fragile X and autism, has been followed by a pediatrician and has occupational therapy through mental health services. The younger child has sensory issues and uses a pressure vest and a weighted blanket. He is in grade primary, after being held back a year, and has a teaching assistant who works with him on his speech, vocabulary and peer engagement. [ 68 ] In April of this year, the Agency decided to offer family support to B.H. The first appointment was cancelled by B.H. owing to illness.

The Agency was unable to reach B.H. throughout April to

schedule an appointment. When later questioned about this, B.H. said he had been “out a lot lately”. B.H. has acknowledged that he would struggle to have the children in his own care without the support of a family support worker. [ 69 ] As the fresh evidence makes plain, V.H. and B.H. remain unable to parent their challenging boys without placing them at substantial risk of physical and emotional harm. A permanent care order is in the best interests of the children. Conclusion [ 70 ] The decision of Judge Melvin should be set aside and a permanent care order should issue respecting both children. Bryson, J.A. Concurred in: Farrar, J.A. Oland, J.A.