Nova Scotia (Community Services) v. BC, 2012 NSSC 413

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Nova Scotia (Community Services) v. BC , 2012 NSSC 413 Date: 20121127 Docket: SFSNCFSA - 79544 Registry: Sydney Between: The Minister of Community Services Applicant v. BC and IF Respondents Date: 20121127 Docket: SFSNCFSA - 81761 Registry: Sydney Between: CD and GD Applicants v. BC and IF Respondents LIBRARY HEADING Judge: The Honourable Justice Theresa M. Forgeron. Heard: October 3 and 4, 2012, Sydney, Nova Scotia Written Decision: January 29, 2013. Subject: Child Protection, Grandparent Custody and Access Request. Result: Grandparents denied standing, placement and access under CFSA because

of their parenting deficits, their conflictual relationship with the parents, and lack of recent meaningful contact. Leave, custody and access request under MCA likewise denied because CFSA was operative legislation and not in best interests of children. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Nova Scotia (Community Services) v. BC, 2012 NSSC 413 Date: 20121127 Docket: SFSNCFSA - 79544 Registry: Sydney Between: The Minister of Community Services Applicant v.

BC and IF Respondents Date: 20121127 Docket: SFSNCFSA - 81761 Registry: Sydney Between: CD and GD Applicants v. BC and IF Respondents Editorial Notice Identifying information has been removed from this electronic version of the judgment. Judge: The Honourable Justice Theresa Forgeron

Heard: October 3 and 4, 2012 in Sydney, Nova Scotia Oral Decision: November 27, 2012 Written Decision: January 29, 2013 Counsel: Tara MacSween, for the Minister of Community Services Alfred Dinaut, for the respondent, BC; Jill Perry, for the respondent, IF; CD and GC, self-represented. By the Court: [ 1 ] Introduction [ 2 ] Five year old B, three year old KM, and one year old M, are the children of BC and IF. The children are in the temporary care and custody of the Minister of Community Services.

CD is the maternal grandmother of the children; GD is the husband of CD. [ 3 ] CD and GD are seeking involvement in the child protection proceedings. They seek party status, and either placement or access to their grandchildren. The Minister, BC and IF dispute these applications. In the alternative, CD and GD seek leave, and either custody or access to their grandchildren pursuant to the provisions of the Maintenance and Custody Act .

BC and IF dispute these applications. [ 4 ] Issues [ 5 ] The following issues will be determined in this decision: ∙ Should CD and GD be granted standing in the child protection proceedings? ∙ Should the children be placed in the care of CD and GD pursuant to the provisions of the Children and Family Services Act ? ∙ Should CD and GD be granted access in the event placement is denied? ∙ Should CD and GD be granted leave, custody or access pursuant to the provisions of the Maintenance and Custody Act ? [ 6 ] Background [ 7 ] The Minister ’ s involvement began in February, 2012 because of concerns around neglect.

The home of BC and IF was unfit and unsafe. In addition, BC and IF were not meeting the nutritional or medical needs of their children. Two of the children experienced

serious developmental delays. Further, BC and IF were not addressing their own mental health issues. IF was diagnosed with bi-polar disorder and was not taking prescribed medication. BC was suffering from depression. [ 8 ] Neither party appreciated the magnitude of these problems. As a result, chaos and neglect gave rise to serious protection concerns. CD reported these concerns to the Minister. The Minister removed the children from the care of BC and IF. A protection finding was entered by consent on May 16, 2012 pursuant to sec. 22(2)(

b) of the Children and Family Services Act . [ 9 ] Following the apprehension, the children were placed with the paternal grandparents. The paternal grandparents eventually determined that they could no longer care for the children because of health and employment issues, and given the special needs of the children. The children were then placed in an agency approved foster home where they are showing consistent and steady improvement. [ 10 ] Once the children were placed in foster care, CD contacted the Minister. CD requested that she and her husband be considered as placement for the children.

They also requested access. Both requests were denied after the agency ’ s review and assessment were completed. [ 11 ] The contested hearing involving CD and GD was held on October 3 and 4, 2012. The following witnesses provided evidence: Dr. Mark Sampson, Stuart Matheson, NP, PC, SB, EL, CD, AB, Noelle Holloway-MacDonald, Nicole Sheppard, BC, the paternal grandmother, Wendy Aboud, and IF.

The oral decision was rendered on November 27, 2012. [ 12 ] Analysis [ 13 ] Position of the Parties [ 14 ] CD and GD seek party status and argue that the children should either be placed in their care or they should be granted access, either under the Children and Family Services Act or the Maintenance and Custody Act . CD and GD submit that they have a strong and direct interest in the proceedings because of their connection to their grandchildren as confirmed in CD ’ s evidence and the evidence of their many witnesses.

CD and GD state that they had regular, consistent and positive involvement with their two oldest grandchildren. CD and GD acknowledge a limited relationship with their youngest grandchild. They claim that BC and IF inappropriately limited their contact because BC and IF were spiteful, antagonistic, and conflictual. [ 15 ] CD and GD further argue that they have always focussed on the best interests of their grandchildren, as evidenced by the fact that they contacted child protection authorities as soon as they became aware of the neglect.

CD and GD state that they are inappropriately being penalized for having laid the complaint. Their grandchildren should be part of their lives. [ 16 ] CD and GD state it is in the best interests of the children to be with family and to be placed in their care. Their home is safe, loving and nurturing. They built an extra bedroom and also have access to friends who can provide professional guidance and assistance so they can meet the children ’ s special needs. [ 17 ] In contrast, the agency, BC and IF strenuously argue against the applications of CD and GD.

They state that the children ’ s welfare will not be enhanced by adding CD and GD as parties, or by allowing them contact with the children. In support of this position, the Minister, BC and IF note the conflictual relationships amongst family members and the protection concerns found in the home of CD and GD. These protection concerns relate to the viewing of pornography, the lack of experience with special needs children, and CD ’ s anger management issues.

For these reasons, the agency, BC and IF oppose the applications of CD and GD. [ 18 ] Should CD and GD be granted standing in the child protection proceedings?

[ 19 ] Section 36(1)(

f) of the Children and Family Services Act provides the court with the jurisdiction to add other people as parties at any stage in the child protection proceedings pursuant to the Family Court Rules . In Nova Scotia Community Services v.

S.(S), 2012 NSSC 293 , Jollimore, J. confirmed that Family Court Rule 5.09 continues to govern those who seek party status in proceedings brought in the Supreme Court of Nova Scotia Family Division pursuant to the Children and Family Services Act at paras 8 and 9. [ 20 ] Further, after undertaking an analysis of the caselaw, Jollimore, J. reviewed the three factors which must be addressed when standing is an issue.

These factors are as follows: ∙ whether the third party seeking standing has a direct interest in the proceeding ’ s subject matters; ∙ whether the third party seeking standing has a familial, or some other, relationship; and ∙ whether there is a reasonable possibility, when compared to other alternatives, that the children ’ s welfare may be enhanced by granting the third party standing and hearing the relevant evidence. [ 21 ] The burden is on CD and GD to prove their case. I find that they have not done so.

Although, I am satisfied that they have a direct interest in the proceedings and that there is a preexisting family relationship, CD and GD have not proven that their involvement has a reasonable possibility of enhancing the children ’ s welfare. [ 22 ] In reaching this conclusion, I have reviewed the best interests test as articulated in secs. 2(2) and 3(2) of the Children and Family Services Act . I have also considered the law as set out in Nova Scotia Minister of Community Services v. S.(S.) , supra .

I draw my conclusion from the following findings of fact: ∙ The relationship between CD and GD and the children was markedly restricted during the past year and a half. Further, CD and GD have little connection to M, who was born on March *, 2011. ∙ The relationship between the maternal grandparents and BC and IF is a divisive one. Animosity and conflict continually erupt when they interact. Indeed, CD and BC were involved in a physical altercation that resulted in police being called.

This altercation began when the children were present. ∙ The application was made before the Minister has suggested that the agency will seek a permanent care and custody order.

At this stage, the Minister ’ s focus is on the provision of services which will eliminate the risks so that the children can be safely returned to BC and IF. [ 23 ] Given these findings, CD and GD will not be granted party status. [ 24 ] Should the children be placed in the care of CD and GD pursuant to the provisions of the Children and Family Services Act ? [ 25 ] CD and GD request that the children be placed in their care until such time as the children are able to be returned to BC and IF.

The Minister, BC and IF oppose their application. [ 26 ] The Children and Family Services Act contemplates family placement in appropriate circumstances. Section 42(1)(

c) of the Act provides the court with the jurisdiction to place a child in the care and custody of a person other than a parent, with the consent of that other person, subject to the supervision of the agency. Section 42(3) of the Act states that where a court determines that it is necessary to remove a child from parental care, the court must consider whether it is possible to place the child with a relative, neighbour

or other member of the child ’ s community or extended family, with the consent of that relative or other person. These provisions must be read in the context of the best interests of the child as stated in secs. 2(2) and 3(2) of the Act . The needs and best interests of the child are central to the determination involving family placement: B.D. v. Family and Children ’ s Services of Kings County, 1999 NSJ 220 (C.A.) . [ 27 ] When responding to a family placement request, the court must be responsive to reasonable alternatives.

Reasonable is deemed to mean “ those proposals that are sound, sensible, workable, well conceived and have a basis in fact ” : Children ’ s Aid Society of Halifax v. B.(T.) , 2001 NSCA 99 at para. 30 . JA Saunders also notes at paras. 51, 52 and 53 as follows: The agency has a statutory duty to take reasonable measures to provide services to families and children that promote the integrity of the family (s. 13 CFSA).

The court has its own responsibility to take into account such measures and alternatives as are applicable in the circumstances of the case, before removing the child from the care of a parent or guardian (s. 42(2) CFSA). Thus the court and the agency share a responsibility to see that reasonable family or community options are considered. But the burden of establishing the merits of the alternative proposed are squarely upon the proponent. It is the proponent who must satisfy what I would term a burden of persuasion.

Only when specific arrangements have been conceived and put in place by the proponent can the viability of that proposal be assessed. Quite apart from the statutory component, there are sound practical and policy reasons for fixing the proponent of a family placement with the burden of persuasion that I have described. The things that motivate alternative proposals for family placement in child custody matters may be as varied as the factors which prompted the family crisis in the first place.

In many cases, a relative's offer to provide shelter, love and support to another parent's child will be driven by a genuine affection and willingness to help. But in other cases, offers of assistance may be prompted by harsh, yet subtle catalysts, including threats or other forms of coercion by those whose power or control over the proposed custodian may go well beyond the current judicial proceeding.

This reality may be quite difficult to discern; all the more reason to expect that the individual who volunteers to serve as an alternative family placement, be obliged to demonstrate that the proposed plan is workable, well motivated and worthy of serious consideration. The agency is not required to investigate each and every family placement proposal.

The burden of persuasion is upon those advocating a competing plan to advance the most compelling and sensible alternative they can muster. [ 28 ] I have determined that it is not in the best interests of the children to be placed in the care of CD and GD, individually or jointly. CD acts inappropriately when faced with stress. The coping methods that she has employed in the past are negative and will compromise the best interests of the children.

Examples in support of this conclusion include the following: ∙ When CD learned that her sister, who is a vulnerable adult, would be leaving her home and moving into a group home, CD hurled a cup against the wall. CD ’ s sister spent a brief period at transition house. CD attempted to minimize the seriousness of her conduct by indicating that her sister was not present in the kitchen when she threw the cup.

The evidence, however, showed that CD ’ s sister was next to the kitchen and was negatively impacted by CD ’ s angry outburst. ∙ When CD and BC disagreed on a trivial matter, they engaged in a physical altercation. CD attempted to minimize the seriousness of this conduct by stating that she acted in self defence in response to her daughter ’ s physical assault upon her. Regardless, the altercation was serious. The police were called. The children were present for a portion of the fight.

CD lacked insight into the impact that this altercation could cause children. ∙ Upon learning about a school disturbance involving her son and a neighbour ’ s daughter, CD engaged in inappropriate, violent confrontations. CD, GD, and other family members attended at the neighbour ’ s home and created a threatening disturbance. There was no escalation because the neighbour, Ms. Aboud showed restraint. Police were called to the scene. Further, CD continued her vendetta against Ms. Aboud by driving dangerously when CD encountered her neighbour. I accept the evidence of Ms. Aboud. She was credible. CD was not.

Inappropriate driving by CD was also reported by IF. [ 29 ] Further, CD and GD do not have the requisite skills necessary to parent these special needs children. Indeed, one of CD ’ s own references, Dr. Sampson, advised Ms. Holloway-MacDonald that CD did not have the knowledge and expertise required to deal with the children ’ s developmental delays and challenging behaviours. Dr. Sampson repeated these comments to the court. The evidence before

the court, as articulated above, confirms Dr. Sampson ’ s conclusion. CD ’ s demonstrated lack of patience, lack of insight, and inappropriate angry and violent reactions will negatively affect the children. [ 30 ] In addition, GD watches pornographic movies and has done so in the presence of others. GD refused to stop watching pornography even when requested by CD to do so. I reject CD ’ s trial account on this issue. She was not credible. I accept the evidence of Ms. Holloway-MacDonald and Ms. Sheppard. They accurately reported the comments of CD.

I find that CD told both workers that GD did watch pornographic movies; that CD did not support such activities; and that GD continued to watch pornography even after being asked to stop this practice by CD. CD attempted to minimize this concern by stating that GD did not watch movies, but rather only looked at sexual images and never engaged in this pursuit in front of third parties or children. I reject this evidence.

I accept the evidence of AB and BC who stated that GD watched pornography on the stationary computer which is located in an open space in the living room, and has done so with other people present. [ 31 ] Finally, serious safety issues were found in the home of CD and GD. Ammunition was found in the same locked cabinet as a gun. There was no safety gate. [ 32 ] The children have significant needs. It is not in their best interests to be removed from their current foster homes to be placed in the care of CD and GD in light of these significant deficits.

The plan of CD and GD is not sound, sensible, workable, well-conceived or appropriate. [ 33 ] Should CD and GD be granted access in the event placement is denied? [ 34 ] Section 44(1)(

b) of the Children and Family Services Act provides the court with the jurisdiction to order access to nonparents when children are placed in the temporary care and custody of the Minister. For the reasons previously articulated, it is not in the best interests of these children to have access to CD and GD because of their parenting deficits, the conflictual relationship between them and BC and IF, and given the lack of recent meaningful contact between the children and CD and GD.

Nothing will be gained, from the children ’ s perspective, by the introduction of access at this time. [ 35 ] Should CD and GD be granted leave, custody or access pursuant to the provisions of the Maintenance and Custody Act ? [ 36 ] CD and GD also seek leave and an order for custody or access pursuant to the provisions of the Maintenance and Custody Act. At this time, the Children and Family Services Act is the operative legislation respecting placement and access.

Further, and in any event, leave, custody and access are not in the children ’ s best interests for the reasons previously stated. [ 37 ] Conclusion [ 38 ] The applications of CD and GD are dismissed. It is not in the best interests of the children for CD and GD to be added as a party, to have custody or access to the children, or to be granted leave to apply for custody or access to the children. __________________________ Forgeron, J.