Children’s Aid Society of Cape Breton-Victoria Applicant v. A.L. & J.W.M. Respondent DECISION ____________________________________________________________ Judge: The Honourable Justice Darryl W. Wilson, 2010 NSSC 189

IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Cite as: Children ’ s Aid Society of Cape Breton- Victoria v. A.L., 2010 NSSC 189 Date: 20100506 Docket: SFSNCFSA60627 & SFSNCFSA56925 Registry: Sydney, Nova Scotia Between: Children’s Aid Society of Cape Breton-Victoria Applicant v. A.L. & J.W.M. Respondent DECISION ____________________________________________________________ Judge: The Honourable Justice Darryl W.

Wilson Heard: September 14, 15, November 20, 2009 and March 25, 2010 Decision (written): May 6, 2010 Counsel: David Raniseth and Tara MacSween - Counsel for the Applicant Luke Wintermans - Counsel for the Respondent, A.L. Alfred Dinaut - Counsel for the Respondent, J.W.M. Editorial Notice Identifying information has been removed from this electronic version of the judgment.

Publishers of this case please note: That s.94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication. Section 94(1) provides: No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or a relative of the child. 1990, c . 5 The Court: [ 1 ] This proceeding concerns the future care and custody of two children.

The older child, H., age 4, is the son of A.L., the Respondent mother, and J.M., the Respondent father. Protection proceedings were initiated by the Children ’ s Aid Society of Cape Breton-Victoria, the Agency, in January, 2008. [ 2 ] The younger child, N., was born in September, 2008 and protection proceedings were initiated at the time of his birth. Although the mother asserts that J.M. is N.’s father, J.M. doubts that he is N.’s father. [ 3 ] The Agency’s application seeks a Permanent Care and Custody Order with no provision for access for each of the children.

The Agency’s plan for H. is permanent placement through adoption with paternal grandparents. The Agency’s plan for N. is permanent placement through adoption with non-relatives. [ 4 ] The Respondents ended their relationship in the Spring of 2008 and no longer communicate with one another. The mother opposes the application and seeks an Order returning both children to her care.

The father did not present a plan of care. [ 5 ] Although both children are in the temporary care and custody of the Agency, H. has been residing with his paternal grandparents since November, 2007, and N. has been residing in an Agency approved foster home since his birth in September, 2008. [ 6 ] The protection risks identified by the Agency when the proceedings began was substance abuse by both Respondents and domestic violence.

The main protection concern of the Agency at the time of trial was domestic violence in the mother’s personal relationships. [ 7 ] The maximum time-limits for Disposition Orders pursuant to the Act with respect to the child, H., have expired and the Court must either place the child in the permanent care and custody of the Agency or dismiss the proceedings and return the child to the care of the mother. [ 8 ] The maximum time-limits for Disposition Orders with respect to the child, N., expired in April, 2010.

The Agency’s position is that the circumstances justifying a Permanent Care and Custody Order are unlikely to change by April, 2010 so that the child can be returned to his mother and, therefore, a Permanent Care and Custody Order should issue at this time. [ 9 ] A Disposition Review Hearing was held on September 13 th and 14 th , 2009 to determine whether H. and N. should be placed in the permanent care of the Agency or returned to the care of their mother.

The Court rendered an oral decision on September 23, 2009, with written reasons to follow, ordering that the proceeding with respect to H. be dismissed and H. be returned to his mother’s care, and that the child, N., be returned to the mother subject to the supervision of the Agency.

[ 10 ] The Agency filed an application on October 2, 2009, seeking an Order to stay the execution of the Order for Dismissal and the Supervision Order. This application was premature as the written reasons were not filed and the Order had not been issued. [ 11 ] When written reasons were filed (see decision reported at 2009 NSSC 328 ), the Agency applied for an Order pursuant to Civil Procedure Rule 15.08(

a) seeking an order for the production of documents and to introduce new evidence in the proceeding. [ 12 ] The Application to admit new evidence was considered on November 20, 2009.

The new evidence included information about the mother’s living arrangements at the time she testified on September 13, 2009, and her actions post hearing, in varying a Recognizance to allow contact between herself and P.M., who had been charged with assaulting her. [ 13 ] The Court granted the application of the Agency to admit new evidence (see Decision reported at 2010 NSSC 33 ). [ 14 ] Counsel were given the opportunity to make submissions taking into account the evidence at the hearing in September, as well as the new evidence presented on November 20, 2009.

Counsel for the Agency provided a written submission. Counsel for the father who had supported the Agency’s position at the hearing in September, 2009 declined to make further submissions. [ 15 ] Counsel for the mother requested and the parties agreed to admit additional evidence involving the mother’s contact with P.M. post November 20, 2009, and the mother’s plan of safety prepared in conjunction with Victim Services, police and others if P.M. attempted to contact the mother. BACKGROUND [ 16 ] The child, H., was born in the Spring of 2005 while the Respondents were living together.

Both Respondents had children from other relationships, who were residing with their former partners. The Respondents’ relationship was marked by domestic violence and substance abuse. The father was incarcerated in 2007 in the * Correctional Facility. During the period of this incarceration, the Child Welfare Agency in the * area investigated child protection concerns involving the mother. Court proceedings were not initiated. [ 17 ] After the father’s release from custody in the Fall of 2007, the Respondents relocated to * looking for work.

Shortly after their relocation, H. was apprehended due to substance abuse by the Respondents. The paternal grandparents, who reside in Cape Breton, travelled to * to assist the Respondents. An agreement was reached to place the child in the supervised care of the paternal grandparents and the entire family including grandparents, Respondents and child returned to Cape Breton in November, 2007. The Children’s Aid Society of Cape Breton-Victoria became involved with the family to provide courtesy supervision for the * Agency.

The mother was residing with the paternal grandparents and the child in the grandparents’ small trailer in Cape Breton when the * Agency ended their protection proceedings because the child had been relocated to Cape Breton. [ 18 ] The local agency initiated protection proceedings in January, 2008 because of continuing concerns involving substance abuse by both parents and domestic violence. The mother was admitted to Detox on two or three occasions in January and February, 2008, due to continued substance abuse, including taking an overdose of the drug seroquel, an anti-depressant, on one occasion.

The mother’s substance abuse involved primarily prescription medication for pain caused by a back injury. Despite domestic violence concerns, the Respondents continued to have contact with one another. [ 19 ] Although H. was placed in the temporary care and custody of the Agency, he continued to reside with his paternal grandparents. The Respondents, who were putting forth a common plan for the return of their child, were offered remedial services. The mother was to be H.’s primary caregiver.

In March, 2008, the mother was informed by the paternal grandparents that she was no longer welcomed to stay at their home. The Respondents maintained separate residences. A no-contact provision was included in the protection orders, while services were being accessed. The Respondents continued to see one another. According to the father, they would stay together on occasion. He believed they were still in a relationship. Each initiated contact with the other. He would pick her up and drop her off at Transition House when she was residing there and also at the Agency’s offices when she attended for access visits.

[ 20 ] The Respondents’ relationship ended in the Spring of 2008 when the father was incarcerated on assault charges. They have not resumed their relationship. The mother has been participating in services to address her substance abuse, including attendance at Detox in February or March, 2008, addiction counselling, providing hair samples for analysis and participation in the Methadone Maintenance Program. At the time of trial in September, 2009, she had made significant progress in addressing these past addiction concerns.

Services to address domestic violence concerns included residing at Transition House, participating in programs offered by the staff of Transition House, * and contact with Victims’ Services and the Domestic Violence Unit of the Regional Police. The mother also attended parenting programs including a “Parents Together” support group. [ 21 ] In the Spring/Summer of 2008, the mother informed the Agency of her pregnancy, which was considered high risk due to her substance abuse. The child, N., who was born in September, 2008, experienced difficulties because of the mother’s substance abuse.

He was apprehended at birth and was placed in an agency-approved foster home. He is being seen by a doctor and physiotherapist for delays in his motor skills development. [ 22 ] After N.’s birth, the Agency became aware that the mother was involved in a new domestic relationship with another individual, P.M. The Agency did not know much about P.M. In January, 2009, the Agency became aware of a reported domestic violence incident between the mother and P.M., which had occurred in December, 2008.

At that time, P.M. was charged with mischief by throwing a rock at the windshield of the mother’s car and threatening to burn her vehicle. He was placed on an Undertaking not to have contact with the mother. He complained that he had been assaulted by the mother. The day following this incident, P.M. was arrested again for breach of an Undertaking not to have contact with the mother. Also, the mother was charged with an assault on P.M., which was alleged to have occurred the day before.

The status of this charge is unclear. [ 23 ] The Agency requested that P.M. attend remedial services, including the Second Chance Program to address domestic violence issues and Addiction Services, if the mother was going to have a relationship with him, while parenting her children. [ 24 ] In April, 2009, the Agency acknowledged the progress made by the mother with her addictions and the steps being taken to address domestic violence concerns. The Agency was in favour of returning the children to the mother’s care. The risk factors of domestic violence and substance abuse were still a concern.

The Agency wanted a period of supervision in order to ensure the mother refrained from the abuse of substances and remained in a violent free relationship. Access between mother and children was moved to the mother’s residence. A pre-condition to moving the place of access was that P.M. not be present in the home until the Agency received information from his service providers.

However, on at least one occasion, P.M. was present during the mother’s access with her children, contrary to court orders that provided there was to be no contact between them. [ 25 ] In April, 2009, the mother informed the Agency that she had been in a car accident which resulted in injuries including a black eye. There was no police report of a car accident as alleged by the mother. The Agency questioned her about the accident and the mother reported the driver of the vehicle had consumed alcohol. [ 26 ] On May 6, 2009, the mother was violently assaulted by P.M.

The mother was at the residence of P.M.’s brother. Alcohol was being consumed and an argument ensued. P.M. threw the mother over the back steps. Her injuries included a lump on the back of the head, a red and swollen face, bruises on her hand, arms and the kidney area of her back. When the police arrived, she was upset, crying and afraid of P.M. [ 27 ] The police officer who investigated the May 6, 2009 incident stated the mother told her that P.M. had assaulted her on four occasions from December, 2008 until May, 2009. Each physical altercation resulted in bruises and marks.

The officer said the mother told her that the injuries she reported caused by a car accident in April were actually suffered as a result of an assault by P.M. The injuries at that time included a swollen right eye, bruises on her back, knee and arm. The mother did not report the April assault because she was afraid it would hurt her chances of having her children returned to her care. [ 28 ] P.M. was arrested, charged with assault and placed on an Undertaking with conditions, including not having any contact with the mother. P.M. tried to contact the mother from the correctional centre the day after the incident.

She reported this incident to the police.

[ 29 ] The Agency held another risk conference in May, 2009, which recommended the children remain in temporary care and custody rather than the supervised care of the mother, because the mother was repeating a pattern of engaging in personal relationships with violent men, which created a substantial risk of physical harm for the children. [ 30 ] The protection proceedings were stayed in June, 2009, for a period of three (3) months and mediation ordered to assist the parties in reaching a resolution in the best interests of the children.

The paternal grandparents who had been caring for the child, H., since the Fall of 2007, were elderly and uncertain whether they wished the child placed with them pursuant to an adoption, which was the Agency’s Plan. The grandparents were not able to put forward a plan of care for the child, N. Mediation was not successful. The grandparents now support the Agency’s plan to permanently place the child, H., with them by adoption. [ 31 ] In June, 2009, the mother obtained full-time employment with a call centre in *. She was relocating her residence from the * area to * in August, 2009.

The Agency is aware that she is residing in *, but did not visit her residence in * and are not sure of its’ suitability. [ 32 ] The mother ’ s testimony concerning her employment and living accommodations at the Disposition Hearing on September 13 th and 14 th , included the following: A.L., Duly called, sworn, testified as follows: DIRECT EXAMINATION MR. WINTERMANS: Can you state your full name and address please? MS. L: A.L.L, 8 * Street, * * . Q. And how long have you been at that address? A. Just recently moved. Q. I see. And before that, where were you living? A. 30 * Drive. Q. And that ’ s where?

A. [*] ... [FURTHER ON IN THE TRANSCRIPT]

MR. WINTERMANS: So you, you ’ re working now? MS. L. : Yes. Q. Where are you working? A. I am working at * *. Q. What ’ s that? A. It ’ s a, ah, call centre...it ’ s like, ah, in * *. Q. And that ’ s in * *? A. That is correct. Q. And, ah, are you on full-time there? A. Ah, yes, I am. Q. How long have you been working there. A. Since July 13 th ...June 13 th . Q. June 13 th of 2009? A. Yes. Q. So about three months? A. Yes. Q. And, um, what kind of hours do you have? A. Ah, well...

Q. Is it...do you switch? A. ...they do switch. Q. Yeah. A. They do switch, however, they have been doing the best they can to, um, to ensure that I still make my visits because the, the shifts are, they, like I said, they do rotate shifts. Q. Yes. A. And they have been accommodating. Q. Okay. So they would accommodate your child care? A. That ’ s correct. Q. Alright. Now what do you want, ah, as a result of this hearing today? A. I would like to have my boys. Q. Returned to you? A. That ’ s correct. Q. Right. And if you did, they would be living with you at your address in * *? A. That is correct. Q.

Um, can you describe the apartment that you have there? A. Yes. It ’ s a, um, ah, very large 2-bedroom. Q. Uh hum. A. Ah, um, of course, it ’ s got the living room, kitchen, um... Q. Uh huh.

A. ...everything is completely child-proofed - all the little plugs in the socket, the... Q. Yes. A. ...they have things on the door knobs, and... Q. Uh huh. A. ...a very clean place. It ’ s only four years old. Q. Uh huh. A. Um, it ’ s got central air going through it, and... Q. Huh hmm. A. ...everything is included. Q. What do you mean by everything? A. Heat and lights. I... Q. I see, okay. A. ...yes. Q. And, um, how much is the rent? A. $720.00. Q. Okay, and what ’ s your monthly income at the present time, approximately? A. Ah, wow, ah, I guess, maybe $1,300.00. Q. I see.

[ 33 ] The preceding evidence was given by the mother in Court on September 14, 2009. [ 34 ] On September 11, 2009, Constable Chiasson of the Cape Breton Regional Police investigated a landlord/tenant dispute at the mother’s apartment. Constable Chiasson stated that the mother informed him the landlord would not allow her into her apartment because the rent had not been paid on time.

Arrangements were made for the mother to pick up her possessions on September 12 th and the mother said she would take the dispute to the Residential Tenancy Board. [ 35 ] At a Residential Tenancy Board hearing on September 16 th the mother claimed moving and storage expenses resulting from her vacating the apartment on September 12 th and gas and ferry receipts for a trip to * to borrow money from a friend to be used as a deposit on a new apartment. [ 36 ] In August, 2009, the Agency received a police report that P.M. was seen in a motor vehicle being driven by the mother.

The police were aware P.M. was on an Undertaking not to have any contact with the mother. They pursued the vehicle until it stopped at a service station in *. The police observed P.M. exiting the vehicle, and entering the service station. When P.M. exited the service station, he ran from the police when confronted by them. According to Cst. Myler, he was within ten (10) feet of P.M. when he exited the vehicle. He also stated the mother acknowledged P.M. was with her. The officer testified the mother informed him P.M. was with her because she needed help moving furniture to a new residence.

P.M. was charged with a breach of the Undertaking. He is awaiting trial on these charges. The mother did not have a valid drivers’ license at the time. [ 37 ] The mother testified it was P.M.’s son who was with her on that day and not P.M. The mother testified she has ended her relationship with P.M. and has reported an attempt by him to contact her after the May incident. P.M.’s son testified that it was he himself and not his father who was with the mother on that day.

He was contacted by the mother in order to return some items she had that belonged to his father and he agreed to help her move furniture to her new residence. He said he ran from police because he owed money on outstanding fines from prior offences. [ 38 ] The mother agrees that the paternal grandparents are providing good care for the child, H., at this time. However, the mother is concerned about the availability and the ability of the grandparents to parent H. in the future because of their age, which she estimates to be over 65.

She is also concerned that they have allowed contact between the father and H., even though the father (their son) has not accessed the services requested of him by the Agency. The mother believes the father is seeing the child in the grandparents’ resident, contrary to the existing court orders. The Agency has spoken to the grandparents and the father about this concern, which has been denied by them.

The father said that he attends his parents’ residence only when the child is not there. [ 39 ] The Agency referred the mother for personal counselling services with Family Services of Eastern Nova Scotia on June 25, 2009. The mother did not attend the initial counselling interview scheduled for August 20, 2009, because she had obtained full-time employment, and was accessing personal counselling services through her addiction counsellor. [ 40 ] The mother has attended access visits regularly with both children. Initially, access was with H. alone. After the birth of N., access was with both children.

However, some visits had to be scheduled between the mother and H. alone in order to meet H.’s need for attention from his mother. The Agency has no concerns about the mother’s ability to parent the children if placed in her care or her ability to meet the medical needs of the child, N. The mother has an 18 year old son who resided with her during the 2008/09 school year, while he was completing his high school education. He is not residing with her at this time. The mother has two (2) daughters from another relationship, who reside with their father but visit her on weekends.

The mother experienced a great deal of financial difficulty during the past year and relied upon P.M. to assist her in meeting her basic needs. POST HEARING EVIDENCE [ 41 ] On October 19, 2009 the mother agreed to an amendment to P.M.’s recognizance allowing P.M. to contact her with her written consent. The mother said she agreed to this change as a result of pressure from P.M.’s mother.

[ 42 ] On December 11, 2009, the mother called police to the * Legion and told them she had been approached by P.M. who was looking for a place to stay for the night. She was afraid he may be at her apartment. Police checked her apartment and surrounding area and could not locate P.M. [ 43 ] On December 18, 2009, the police received a 911 call to attend at the mother’s residence. P.M. had entered her residence while she was sleeping. He cut her telephone wires and grabbed her wrist while she tried to call police on the cell phone causing bruising to her wrist.

Police arrested P.M. at the residence and charged him with breach of an undertaking. The mother refused a formal statement and informed police she did not want CAS involved. P.M. was subsequently released from jail. [ 44 ] On January 26, 2010 the police responded to a reported incident at the mother’s residence. The mother said she arrived home at 9:20 p.m., and P.M. was in her residence and confronted her about where she had been. He assaulted her and she suffered several injuries including a lump on her head and bruises to her thigh.

P.M. was arrested several days later and is presently incarcerated. [ 45 ] The mother has been identified as a person at high risk for serious harm through domestic violence. On February 4, 2010 the mother met with various representatives of the High Risk Case Coordination Program to draw up a safety plan should P.M. attempt to contact her in the future. The mother has agreed to abide by the terms of the plan. AGENCY’S POSITION [ 46 ] The objective of the Agency’s intervention was to provide services to alleviate the conditions which placed the children in need of protective services.

Substance abuse and domestic violence were the factors which placed the children at substantial risk of physical harm. [ 47 ] It is the Agency’s position that, although the mother has made gains in addressing her substance addictions, she has made little or no progress in addressing the issue of domestic violence in her relationships.

The Agency refers the Court to evidence detailing the extent of serious domestic violence in her relationship with the father and subsequently P.M., her failure to keep the Agency informed about domestic violence events, her failure to comply with conditions set out in court orders not to have contact with the father or P.M., her attempts to mislead the Agency about injuries caused by domestic violence and ongoing contact with P.M. despite the threat he poses to her safety. [ 48 ] It is the position of the Agency that the children’s need for safety and security are paramount, the domestic violence risk factors which led to children to be in need of protective services continue to exist, the services that have been implemented to alleviate the risk have failed and the circumstances giving rise to the risk are unlikely to change within a reasonable foreseeable time-frame based on the ages of the children. [ 49 ] The Agency requests Orders for Permanent Care and Custody so the children may be placed for adoption as soon as possible.

THE MOTHER’S POSITION [ 50 ] It is the position of the mother that she has not been given an opportunity to parent her younger son, N., and to resume the parenting of H. She has taken remedial services to reduce the protection risks that were present when these proceedings began. She will continue to address substance abuse issues by following her Methadone Maintenance Program and attending sessions with her Addiction Services’ Counsellor, Pauline Saunders, who also provides personal counselling.

She experienced difficult financial circumstances in the past year which led to her making poor choices in continuing a relationship with P.M., who was providing financial assistance to her while her son, age 18, resided with her. She did not have any contact with P.M. after the May incident contrary to the evidence of the police officer. She immediately notified the police when P.M. attempted to contact her in December 2009 and January 2010. She has not had any contact with P.M. since his incarceration in January.

She made significant progress in her personal life by addressing her addiction concerns, obtaining full-time employment. She was able to immediately move to a new apartment when the landlord evicted her. She is prepared to care for her children with the assistance of the Agency. P.M. is currently in jail and she has a safety plan in place put together with the assistance of members of the High Risk Case Conference Program should P.M. attempt to contact her in the future.

THE FATHER’S POSITION [ 51 ] Initially the father supported the Agency’s plan for permanent care and custody of both children and their permanent placement through adoption. The father has changed his position and now supports the return of the children to the mother since he believes she has been taking appropriate steps to deal with the risk of violence by P.M. [ 52 ] The following sections of the Children and Family Services Act are relevant in this application: Review of Order 45(4) Before making an order pursuant to subsection (5), the Court shall consider (

a) whether the circumstances have changed since the previous disposition order was made; (

b) whether the plan for the child's care that the Court applied in its decision is being carried out; (

c) what is the least intrusive alternative that is in the child's best interests; and (

d) whether the requirements of subsection (6) have been met.

(5) On the hearing of an application for review, the Court may, in the child's best interests, (

a) vary or terminate the disposition order made pursuant to subsection (1) of

Section 42, including any term or condition that is part of that order; (

b) order that the disposition order terminate on a specified future date; or (

c) make a further or another order pursuant to subsection (1) of

Section 42, subject to the time limits specified in

Section 43 for supervision orders and in

Section 45 for orders for temporary care and custody.

(6) Where the Court reviews an order for temporary care and custody, the Court may make a further order for temporary care and custody unless the Court is satisfied that the circumstances justifying the earlier order for temporary care and custody are unlikely to change within a reasonably foreseeable time not exceeding the remainder of the applicable maximum time period pursuant to subsection (1) of

Section 45, so that the child can be returned to the parent or guardian. 1990, c. 5, s. 46. ... Disposition order 42

(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.

(3) Where the Court determines that it is necessary to remove the child from the care of a parent or guardian, the Court shall, before making an order for temporary or permanent care and custody pursuant to clause (d), (

e) or (

f) of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family pursuant to clause © of subsection (1), with the consent of the relative or other person.

(4) The Court shall not make an order for permanent care and custody pursuant to clause (

f) of subsection (1), unless the Court is satisfied that the circumstances justifying the order are unlikely to change within a reasonably foreseeable time not exceeding the maximum time limits, based upon the age of the child, set out in subsection (1) of

Section 45, so that the child can be returned to the parent or guardian. 1990, c. 5, s. 42. ... Services to promote integrity of family 13(2) Services to promote the integrity of the family include, but are not limited to, services provided by the agency or provided by others with 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. 1990, c. 5, s. 13. ... Purpose and paramount consideration 2

(1) The purpose of this Act is to protect children from harm, promote the integrity of the family and assure the best interests of children. ...

Interpretation 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; (

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. CONCLUSION [ 53 ] I ’ ve considered the evidence of witnesses who testified at hearings in September 2009, November 2009 and March 2010 and the exhibits filed. The evidence relating to the mother ’ s actual living accommodations at the time she testified in September of 2009 is evidence that existed at the time of the September hearing which was not made available for the Court ’ s consideration.

This is evidence that is appropriate for considering what order is in the best interest of both children as of September 2009. [ 54 ] The evidence of events after the September disposition review hearing including the mother’s consent to the amendment to P.M.’s recognizance in October, contact between the mother and P.M. in December of 2009 and January of 2010 and the mother’s safety plan, was permitted as new evidence for consideration with the other evidence given in September in relation to the youngest child, N., because (1) the protection proceeding had not been completed, (2) the evidence was relevant to the Court’s determination of what order was in the children’s best interest,(3) the parties agreed to the admission of evidence relating to the mother’s contact with P.M. in December 09 and January 2010 and her safety plan and (4) evidence of events after the September disposition review hearing would have been available for the Court’s consideration on any further disposition review respecting the younger child. [ 55 ] I have considered the

preamble to the Children and Family Services Act and the relevant statutory provisions. [ 56 ] The Court is required to make an order in the best interest of each child, taking into account all the relevant circumstances, including factors set out in s.3(3) of the Act . [ 57 ] By September of 2009 the time limits for all disposition orders with respect to the child H. had expired and the Court was required to either dismiss the proceedings and return the child to his mother or place H. in the permanent care and custody of the Agency. [ 58 ] The time limit for all disposition orders with respect to the child N. will expire in April of 2010 and likewise the Court must either dismiss the proceedings and return the child to his mother or place H. in the permanent care and custody of the Agency. [ 59 ] In considering what order is in the child’s best interest, the Court must consider whether services to promote the integrity of the family, pursuant to s.13, have failed or will be inadequate to protect the child; whether it is possible to place each child with a relative or member of his extended community; and whether the Court is satisfied the circumstances justifying the earlier protection orders are not likely to change sufficiently so that the children can be returned to their mother’s care. [ 60 ] At the Disposition Review Hearing the Agency’s main protection concern was the mother’s lack of progress in dealing with violence in her personal relationships, which presented a risk of physical harm to any children in her care.

The Agency is concerned the mother, despite accessing services to address this protection risk and court orders restricting contact between herself and abusive partners, continues to put herself at risk of physical harm by associating with people who were violent towards her. [ 61 ] On August 1, 2009 just one month before her disposition review hearing the mother was seen by two members of the Cape Breton Regional Police Service driving a motor vehicle with P.M. as a passenger.

The police were aware that P.M. had violently assaulted the mother, that P.M. was awaiting trial on assault charges and there was a recognizance directing him not to have any contact with her. The police were unable to arrest P.M. at the scene because he fled the vehicle when it was stopped at a service station in *. The police officer indicated that the mother acknowledged P.M. was in the vehicle and he personally identified P.M. when he exited the

vehicle. The mother subsequently denied P.M. was in the vehicle and testified that it was P.M.’s son. The Court on an earlier occasion was not prepared to find the Agency had established an association between the mother and P.M. on August 1 st on the balance of probabilities given the conflict in the evidence of the police officer and the mother and P.M.’s son. However, the Court is now satisfied that the mother’s evidence is not credible. I am satisfied she was associating with P.M. on August 1 as testified by Constable Myler.

In making this adverse finding of credibility against the mother, I have considered the mother’s misleading evidence about her living accommodations during the court hearing in September 2009 which clearly misrepresented her circumstances and her previous failures to comply with court orders restricting contact between herself and the father, and herself and P.M. [ 62 ] Both children continue to be in need of protective services. [ 63 ] The mother has engaged in remedial services which have been beneficial in reducing the risk of harm to her children due to her substance abuse. [ 64 ] The mother has participated in self-help and empowerment programs dealing with the impact on children of domestic violence.

The mother was required not to associate with the father and P.M. both of whom assaulted her. Throughout these proceedings and while attending self-help programs, she associated with these men who physically abused her. Early on in the proceedings she had contact with the father contrary to orders of this Court. The father while awaiting trial on assault charges on the mother testified that he transported the mother to and from Transition House where she was attending programs dealing with domestic violence.

When the mother ended her relationship with the father she began a new relationship with P.M., a violent individual who assaulted her on numerous occasions from December 08 to May 2009. During this time the mother misled the Agency about injuries sustained at the hands of P.M. With criminal charges pending and child protection proceedings approaching, she put herself at risk of physical harm by associating with P.M. on August 1 st , 2009 and then misled the Agency and the Court about her association with him. [ 65 ] The mother has been a victim of domestic violence.

Throughout these proceedings she seemed unable to remove herself from associations or circumstances in which domestic violence existed. The mother submits the risk of physical harm because of domestic violence in her relationships has been reduced to a manageable level because P.M. is incarcerated, and she recently re-engaged with service providers, notifies police when P.M. contacted her and set up a plan of safety if P.M. attempts to contact her in the future.

The court is not assured that her plan of safety will protect the children in the future, because her actions throughout these protection proceedings have demonstrated that she puts herself in harms way and is not forthcoming in reporting incidents of domestic violence in a timely manner . Her recent conduct can be characterized as too little too late. The time limits for dealing with protection concerns have expired. The Court must return the children to the care of the mother or place them in the permanent care and custody of the Agency.

It is clear the mother’s actions throughout the entire proceeding and not just recent events, demonstrate that she has shown little insight into the risk of harm to her children of domestic violence. [ 66 ] In considering what order is in each child’s best interest I find

(1) H. has a close bond with his mother evidenced by his need to spend time alone with her during access visits. N.’s attachment with the mother may not be as strong since he has been in foster care since birth. However, the mother is capable of establishing a close bond with N.

(2) The mother has the capacity to meet her children’s physical, mental and emotional needs but her inability to remove herself from associations involving domestic violence put in doubt her ability to ensure their safety.

(3) The mother’s plan for care would enable both children to be part of one family unit, whereas the Agency’s plan would result in separation of the siblings and one child, N., not having an opportunity to develop relationship with relatives.

(4) The degree of risk that justified the protection finding has not been reduced to an acceptable level because of the mother’s continued association with violent individuals while accessing remedial services. These associations have resulted in additional violence. H. has resided in a safe environment at his grandparents home for two and a half years. Likewise N. has been in a secured foster home since his birth. Therefore, the risk of harm by returning the children to the care of the mother is greater than the risk of harm of them being kept away from the mother’s care.

The degree of risk should the children be returned to the mother, is significant given the serious nature of the injuries suffered by the mother on numerous occasions. [ 67 ] The Agency’s plan for H. is a permanent placement with paternal grandparents through adoption. H. has been in their care for two and a half years. The Court is aware that this plan involves a permanent placement with parents of an individual who assaulted the mother and therefore is responsible for domestic violence. However the father would not have responsibility for care of H.

The grandparents would become H.’s parents and therefore responsible for protecting him. The Court is satisfied that it is in H.’s best interest that he be placed in the permanent care and custody of the Agency with no provision for access so that he may be placed for adoption with paternal grandparents rather than being returned to the care of the mother.

Placement of H. permanently with grandparents through adoption rather than returning to the care of his mother, is best for his future development since it provides him with stability and security as a member of a family, maintains relationships with relatives, reduces the risk that he may suffer harm from domestic

violence and ensures greater continuity in his care. [ 68 ] Likewise the Court finds that it is in N.’s best interest that he be placed in the permanent care and custody of the Agency with no provision for access so that he maybe permanently placed for adoption rather than be returned to the care and custody of the mother. The Agency’s plan provides the best opportunity for N.’s future development since it will allow him to have a secure place as a member of a family, ensure continuity in his care and reduces the risk of physical harm that exists in the mother’s home. J.