Nova Scotia (Community Services) v. NW, 2020 NSSC 353

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Nova Scotia (Community Services) v. NW , 2020 NSSC 353 Date: 2020-12-07 Docket: SFHCFSA No. 114927 Registry: Halifax Between: Minister of Community Services Applicant v. N.W.

Respondent Judge : The Honourable Justice Theresa Forgeron Heard : December 7, 2020, in Halifax, Nova Scotia Oral Decision : December 7, 2020 Written Release : December 9, 2020 Counsel : Sarah Gordon, counsel for the Applicant, the Minister of Community Services Linda Tippett-Leary as Amicus Curiae N.W., self-represented Restriction on Publication: Restriction on Publication Pursuant to subsection 94(1) of the Children and Family Services Act , S.N.S. 1990, c. 5 , there is a ban on disclosing 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.

By the Court: Introduction [ 1 ] This child protection decision is about an 18-month-old toddler, NyW. The child is the daughter of NW. Regrettably, the child’s biological father is also the biological father of the mother. [ 2 ] Because of her parentage, the child is diagnosed with serious medical issues and experiences significant developmental delays. The child’s needs are considerable. The corpus callosum did not develop in her brain. She is being monitored for cerebral palsy.

She is seen by many specialists at the IWK, including those from its genetic, pediatric, neurology, ophthalmology, immunology, physiotherapy, and occupational therapy departments. She also participates in programming through Early Childhood Development and Intervention Services. The child is considered medically vulnerable. [ 3 ] Although medically vulnerable, the child is nonetheless content. The child is being raised by specialized foster parents who provide a loving, supportive and happy homelife. The child and foster parents are bonded, as is the child and her special needs foster brother.

The child loves and knows love. [ 4 ] The Minister seeks to have the child placed in her permanent care and custody. The Minister states that the presenting protection concerns have not resolved. The mother is diagnosed with an intellectual disability and has no support system. As a result, she is transient and is not capable of parenting safely. The Minister states that a permanent care order must issue in the child’s best interests. [ 5 ] The mother did not attend today’s hearing.

Although her legal position was not formally stated, in the past, the mother consistently said that she wanted the child returned to her care. From all accounts, the mother loves her daughter. When she exercised

access, the mother was affectionate, kind and caring. [6] Initially, the mother put forth a plan that involved assistance from her father. However, once the child’s parentage wasdiscovered, this plan was abandoned. The mother did not present the court with any other plan or options. The mother led no evidence. Issues [7] Should a permanent care and custody order issue? Background Facts [8] The child was born in June 2019. She remained in hospital for an extended time because of her many health challenges. [9] On July 4, 2019, a protection application was filed under s. 22(2) (b), (g), (

k) and (kb) of the Children and Family ServicesAct. Protection concerns centered around the mother’s low functioning. The Minister states that the mother lacks basic parenting skillswhich places the child at a significant risk of physical and emotional harm. In addition, the mother is transient; she has not secured stablehousing. [10] Interim proceedings were completed on July 4 and 22, 2019. The protection finding was entered on September 30, 2019.

Thedisposition order issued on December 17, 2019, with review orders being granted on February12, May 6, July 21, and October 19, 2020.Since the proceedings began, the child has remained in the care of the Minister. The mother has supervised parenting time. [11] Because of her presentation, the Minister sought a psychological assessment of the mother, which was completed by LizaGabriel. Ms. Gabriel diagnosed the mother as having an intellectual disability. The Minister provided adaptations to its family skillsprogram in keeping with Ms.

Gabriel’s recommendations. [12] The Minister eventually concluded that the mother was not capable of addressing the protection concerns. The Ministerdecided to seek a permanent care order after a November risk management conference, and as confirmed in the November 12, 2019motion filed. [13] During this portion of the proceeding, the mother was represented by Ms. Gilmer. On February 10, 2020, Ms. Gilmer filed amotion to be removed as solicitor of record. In her affidavit, Ms.

Gilmer noted as follows at para. 15: Based on my two meetings with xxx, and my review of the material in this matter, including the Psychological Assessment Report fromLiza Gabriel, it is my conclusion that xxx cannot instruct me. I am not confident that xxx has sufficient understanding about what istaking place in this proceeding, in order to make informed decisions on her own behalf, and to be able to instruct legal counsel. [14] Upon receipt of Ms.

Gilmer’s motion, the Minister applied to have Susan Sly appointed as litigation guardian for the mother.Both motions were heard together. [15] The motions were processed through telephone conferences and without an in-person component in keeping with Covidprotocols. During the June 12, 2020 conference, I appointed an amicus curiae. Ms. Tippett-Leary ultimately assumed this role. [16] After all submissions were filed, I rendered an oral decision, followed by a written decision as reported at Nova Scotia(Community Services) v. NW, 2020 NSSC 244.

I denied the Minister’s motion because the court lacked the jurisdiction to grant therequested relief under Rule 36. Rather, the Minister should have applied under the Adult Capacity and Decision-making Act, S.N.S,2017 c.4. In contrast, Ms. Gilmer’s motion to be released as counsel for the mother was granted. [17] The Minister asked to proceed with the permanent care hearing. As there was no consent, an in-person hearing was held onDecember 7, 2020. The mother did not attend.

The following witnesses provided evidence: psychologist, Liza Gabriel; family supportworker, Mekisha Johnston; and child-in-care worker, Katie Brown. Submissions were provided at the conclusion of the hearing and anoral decision rendered. Issues [18] Should a permanent care and custody order issue? Analysis Law [19] This permanent care hearing is the last of the disposition reviews because the statutory time limits will be exhausted in tendays.

In conducting this disposition review, I must assume that the orders previously made were correct at the time. [20] Further, at this stage, I must determine whether the circumstances, which resulted in the original order, still exist, or whetherthere are positive or negative changes, or whether new factual circumstances have arisen, such that the child is no longer in need of protective services: sec. 46 of the CFSA; and Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), (SCC), [1994] 2 S.C.R. 165, at paras. 35 to 37. [21] The Minister bears the burden of proof.

It is a civil burden of proof based on a balance of probabilities. The Minister mustpresent evidence that is sufficiently clear, convincing, and cogent: C. (R.) v. McDougall, 2008 SCC 53. The phrase “clear, convincing,and cogent” does not create an additional or heightened level of proof. Rather, the Minister must prove why it is in the child’s bestinterests to be placed in the Minister’s permanent care and custody according to the legislative mandate. [22] In making my decision, I am mindful of the threefold legislative purpose set out in s. 2(1) of the CFSA to promote the integrity

of the family, to protect children from harm, and to ensure the best interests of children. The paramount consideration, however, is the best interests principle as stated in s. 2(2) of the Act . [ 23 ] The CFSA must be interpreted according to a child-centered approach, in keeping with the best interests principle as defined in s. 3 (2). This definition is multifaceted.

It directs the court to consider various factors unique to each child, including those associated with the child’s emotional, physical, cultural, and social developmental needs, and those associated with risk of harm. [ 24 ] As the Minister is seeking to permanently remove the child from her mother’s care, s. 42(2) of the CFSA is invoked. This

section confirms that the court must not remove a chid from parental care, unless less intrusive alternatives were attempted and failed, or were refused by the parent, or would be inadequate to protect the child. The obligation to provide services is not without restrictions as noted by Flinn, J.A. in Children’s Aid Society of Shelburne (County) v. S.L.S , 2001 NSCA 62 , at para. 36 . [ 25 ] The Minister relies primarily upon s. 22(2)(

b) of the CFSA in support of her position that the child remains in need of protective services . The Minister states that there is a substantial risk that the child will suffer physical harm caused by the mother’s failure to adequately supervise and protect the child. [ 26 ] Substantial risk is defined in s. 22(1) of the Act as meaning a real chance of danger that is apparent on the evidence. In M.J.B. v.

Family and Children’s Services of Kings County , 2008 NSCA 64 , para 77 , Bateman, J.A. confirmed that in relying on “substantial risk”, the Minister need only prove that there is a real chance that the future abuse will occur, and not that future abuse will actually occur. [ 27 ] Moreover, when assessing risk of harm, the court does not demand perfection. Rather, the question to be asked is whether adequate parenting can be achieved within the statutory timeframe: J. F. v. Children's Aid Society of Cape Breton-Victoria , 2005 NSCA 101 , at para 18 .

Decision [ 28 ] I find the Minister proved that the child continues to be in need of protection under s. 22(2)(

b) of the CFSA . There is a substantial risk that the child will suffer physical harm if she was placed in the mother’s care for three reasons - lack of parenting capacity, lack of a support network, and lack of insight. Lack of Parenting Capacity [ 29 ] The mother does not have the capacity to parent on her own. In so finding, I accept the evidence of Ms. Gabriel who was qualified to provide expert opinion in the field of psychology, including mental health functioning, assessment, diagnosis, and treatment. Ms.

Gabriel’s conclusion that the mother has an intellectual disability is accepted. [ 30 ] In her August 2019 psychological assessment, Ms.

Gabriel stated as follows about the mother: • That the mother presented with thinking and reasoning skills that fell in the extremely low range, based upon her full-scale cognitive score, at less than the 0.1 st percentile. • That the mother experienced significant challenge on all cognitive tasks presented. • That the mother faced significant challenge using information to reason and problem solve. • That the mother’s academic performance was commensurate with her cognitive skills. • That the mother displayed adaptive skills difficulties. [ 31 ] Ms.

Gabriel concluded that the mother meets the criteria for an intellectual disability given her extremely low cognitive functioning as well as her adaptive skills deficits. [ 32 ] This diagnosis explains much of the mother’s concerning behaviour. For example, the diagnosis explains why the mother is unable to make or keep appointments in a timely and meaningful fashion. Despite her love for the child, the mother often forgot about her appointments with social workers. She frequently did not return phone calls. She frequently did not attend access visits. She frequently did not attend court.

How will the mother ensure that the child attends her many specialist appointments or how will the mother implement the child’s complicated medical care when the mother cannot make or keep basic appointments with social workers, access facilitators, or the court? [ 33 ] In addition, the mother’s intellectual disability explains why the mother was unable to understand, process, or implement basic parenting skills as taught by the family support worker, even after adaptations were added to the learning modules. [ 34 ] Finally, the mother’s intellectual disability explains why she was unable to successfully apply for financial assistance.

Ms. Johnston, the family support worker, had to fill out the forms on the mother’s behalf. Ms. Johnston also assisted in securing the mother a placement at a local hotel and then a woman’s shelter. The mother was not capable of navigating these systems on her own. [ 35 ] I infer that the mother’s limitations with cognitive and adaptive skills functioning will cause parenting deficits that will place the child at a substantial risk of physical harm.

The mother simply does not have the capacity to evaluate, plan and deliver safe solutions to existing or novel problems which will consistently arise as the child develops and matures, especially given the child’s complex medical needs. Lack of a Support Network

[ 36 ] The mother requires a supportive network if she is to safely parent the child. She does not have such a network. Her own mother kicked her out of her home because she was pregnant. Her father sexually assaulted her. She has no family or friends who provide safe and healthy supports. As a result, the mother has no home. She is transient. She lives in a shelter. Lack of Insight [ 37 ] The mother lacks insight. This lack of insight will place the child at a substantial risk of harm.

For example, the mother’s limitations led her to participate in a sexual relationship with her own father without appreciating its unacceptability. The mother lacks insight into the nature of abuse and trauma that arises from this relationship. How will the mother protect the child from abuse when she fails to even recognize sexual abuse at such a fundamental level? [ 38 ] Further, the mother does not appreciate significant safety risks. For example, Ms. Johnston secured hotel accommodations for the mother during the Covid shutdown. Ms. Johnston reviewed the Covid hotel rules which were enacted for health safety.

The mother did not follow the rules and thus was asked to leave the hotel. [ 39 ] The mother is a naïve and vulnerable person who often makes poor choices because of her lack of insight. The mother’s vulnerability and lack of insight will place the child at a substantial risk of physical harm.

Summary [ 40 ] In

summary, I find that the child still remains in need of protection. The child would be at a substantial risk of physical harm if she was placed in the mother’s care because of the mother’s failure to adequately supervise and protect the child. The substantial risk of harm is linked to the mother’s lack of parenting capacity, lack of a support network, and lack of insight which arise because of the mother’s intellectual disability. [ 41 ] At this stage of the proceeding, I have only two available options. I must either dismiss the proceeding or grant a permanent care order: N.J.H. v.

Nova Scotia (Community Services) 2006 NSCA 20 , at para. 20 . There is no middle ground. Because the child remains in need of protective services, I find that it is in her best interests to be placed in the permanent care and custody of the Minister with a view of adoption. An award of access is no longer legislatively possible. Conclusion [ 42 ] This decision involves tragic circumstances and a tragic result. Although the mother genuinely loves her daughter, as a result of circumstances beyond her control, she is unable to parent safely. The mother is herself a vulnerable person.

Further, the mother has no viable support options. Given these facts, I have no choice but to place the child in the permanent care of the Minister. [ 43 ] I also thank the Minister for extending her mandate to ensure that the mother receives the professional support that she requires to process this decision and to connect with much needed resources to move forward. [ 44 ] Ms. Gordon is to draft and circulate the order. Forgeron, J.