Nunavut (Director of Child and Family Services) v M.J., 2013 NUCJ 17

Citation: Nunavut (Director of Child and Family Services) v M.J., 2013NUCJ17 Date: 20130816 Docket: 08-11-369 CHW Registry: Iqaluit Applicant: Director of Child and Family Services -and- Respondent: M.J. _____________________________________________________________________ Before: The Honourable Madam Justice Tulloch Counsel (Applicant): S.MacKenzie, G. Rutland Counsel (Respondent): J. Rowsell Location Heard: Iqaluit, Nunavut Date Heard: July 22, 2013 and July 23, 2013 Matters: Child and Family Services Act , ss. 3 , 7(3) (b), 7(3)(n), 28(1) (d).

Family law --- Child protection –Considerations – Best interests of the children –– Care and custody of children –– F.J., born in [...] of 2006, and D.J., born in [...] of 2008. --- both children apprehended on January 2, 2012. --- D.J. in the care of the Director for 45 months -- - F.J. in the care of the Director for 29 months -- mother not participating in the proceedings – no plan of care presented – in the best interest of the children to have certainty and stability – mother residing temporarily at the Safe Shelter – no evidence to support the return of the children to the mother -- Application by the Director for permanent custody of the children, F.J. and D.J. allowed REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) I.

INTRODUCTION [ 1 ] On February 15, 2012, the Director of Child and Family Services brought this application for permanent custody of the children: F.J., born [...], 2006, and D.J., born [...] , 2008. [ 2 ] Both children were apprehended and taken into care by the Director on January 2, 2012, as a result of a fire which left them homeless. [ 3 ] The cause of the fire was inconclusive, but it originated in the children’s bedroom and destroyed their home and their belongings. [ 4 ] The Director’s application is opposed by M.J., the natural mother of both children.

After a number of adjournments, this matter proceeded to hearing on July 22 and 23, 2013. [ 5 ] M.J. chose not to participate in the hearing and did not provide evidence. II. HISTORY [ 6 ] This is the Director’s application for permanent custody of two young boys: F.J. (currently 7 years old) and D.J. (currently 4 years old). [ 7 ] M.J. is the natural mother of both children. [ 8 ] The boy’s fathers are not named as respondents. The identity of F.J.’s father has never been disclosed to the Director. The father of D.J. is deceased. [ 9 ] This application is being made pursuant to section 28(1) (

d) of the Child and Family Services Act, S.N.W.T 1997 c.13 as duplicated for Nunavut by s.29 of the Nunavut Act, S.C. 1993, c.28 . [ 10 ] The evidence shows an involvement by the Director with M.J. and her children since 2008. [ 11 ] This particular action arises from a fire that took place at the home of M.J. on January 2, 2012, when both children were in her care. As a result of that fire, M.J. received medical treatment in Iqaluit and Ottawa and the two children were apprehended.

They have both been in the care of the Director since that date. [ 12 ] For the first six months, the Director was under the impression that the mother was consenting to an application for permanent custody with respect to both children. [ 13 ] In May of 2012, M.J. came to court to enter into a consent order and the maternal grandparents came as well to indicate that they

wished to be involved in the children’s lives. The matter was adjourned for the grandparents to retain counsel and possibly apply for standing. Nothing further was heard from the grandparents and they did not attend any further proceedings.

They are not parties to the proceeding. [ 14 ] D.J. has been in the Director’s care on and off for approximately 45 months. [ 15 ] F.J. has been in the Director’s care on and off for approximately 29 months. [ 16 ] D.J. and F.J. have spent additional time in the care of others through private arrangements outside the Director’s custody. [ 17 ] Since the January 2, 2012, apprehension by the Director, D.J. and F.J. have been residing together consistently in a stable foster home owned by E.C. and his common law spouse. III.

RESPONDENT’S NON-PARTICIPATION [ 18 ] At the commencement of the hearing on July 22, 2013, the Court was advised by counsel for M.J., that her client was not present in the courtroom. [ 19 ] The Court was quite concerned by this and the following discussion took place on the record: MS. ROWSELL: Essentially my client has been very emotionally distraught at the process. She is living in a shelter and she --- I’ve had difficulty actually getting her to prepare for the trial and I have obtained her instructions. She wants me to represent her.

She is very clear in that but in terms of participating and keeping appointments, communicating with me and, generally speaking, preparing for the trial, I’ve had some difficulties with my client. She has not been cooperative in helping me in terms of addressing her case. Nevertheless, I am going to proceed to represent my client since those are her instructions. Official Transcript of Proceedings, July 22 and 23, 2013, 1-2, [OT]. Given the fact that the court needs to make a determination regarding this matter, the trial should proceed and I am prepared to represent my client in the circumstances.

However, the difficulty, Your Honour, is that my client does not presently feel comfortable entering the courtroom. OT, 3. I’m prepared to proceed. Unfortunately I can’t comment on how my client is likely going to behave throughout the court proceedings and whether she will be participating or even present. Currently she has told me that she will not be providing any evidence. She will not be subject to examination or cross-examination. OT, 3. [ 20 ] The Court questioned counsel further as follows: THE COURT: Ms.

Rowsell, are you convinced that your client understands the proceedings today and understands what may or may not happen at the end of this case? MS. ROWSELL: Yes, Your Honour, I know that she does understand the nature of these proceedings and the consequences of these proceedings and the significance of the proceedings. Nevertheless, she, for her own personal reasons, feels she could not be present. OT, 4. [ 21 ] After this exchange, the Court adjourned in order for Ms. Rowsell to have further discussion with M.J. who was, according to counsel, in another part of the courthouse. [ 22 ] Ms.

Rowsell was advised that, with the consent of the Director, the court was prepared to have M.J. sit in the body of the courtroom rather than at counsel’s table if it meant that she would be present for the hearing. [ 23 ] Ms. Rowsell was directed by the Court to advise M.J. that she was the most important person with respect to this case and it was to her advantage to at least be present during these proceedings. [ 24 ] The court adjourned. [ 25 ] When the court reconvened Ms. Rowsell indicated the following: MS.

ROWSELL: Your Honour, unfortunately my client is still reluctant to venture upstairs to even sit in the gallery … she simply does not want to even come into the courtroom and deal with what the decision ultimately will be the fact that there is an issue of permanent wardship. She doesn’t want to face it, she doesn’t want to come in and actually be present over the course of the trial. OT, 6-7. [ 26 ] The hearing began without M.J. being present but prior to the first witness being called and after opening statements, M.J. appeared in the body of the courtroom. Ms.

Rowsell invited her to sit at counsel table but she refused and remained in the gallery for two short periods of time during the morning. M.J. returned once in the afternoon for a very short period of time and did not return to the courtroom again on July 22, 2013. M.J. was not present in the court room on July 23, 2013. IV. THE EVIDENCE [ 27 ] A joint book of exhibits containing 77 documents was filed by the parties in advance of the hearing. A

summary was presented to counsel by the Court at the outset of the trial. [ 28 ] Both parties agreed that the exhibits were to be filed for the truth of their contents in spite of the fact that many of them contained hearsay. It was agreed that any documents containing hearsay evidence, not proven by the witnesses called, will go to weight and not to admissibility.

[ 29 ] The joint book of exhibits shows that the Director has been involved with M.J. and her children since 2008 on many occasions. It contains 47 exhibits involving case notes, screening reports, and general emails from professional employees with Child and Family Services. [ 30 ] It also contains two voluntary support agreements, two foster child placements, one consent to services agreement signed by M.J. with respect to D.J., and two consent to services agreements signed by M.J. with respect to F.J.

There is one plan of care agreement, two case transfer summaries, one psychiatric assessment related to F.J. and one formal review by the Director. [ 31 ] Further the joint book of exhibits contains information involving police involvement with M.J. since 2009. [ 32 ] Finally, there are a number of reports from the Iqaluit Fire Department and the RCMP relating to a fire which occurred in M.J.’s home on January 2, 2012 when D.J. and F.J. were in her custody and care. [ 33 ] Six witnesses were called by the Director and one witness was called by the Respondent.

The testimony of these witnesses forms part of the record in this case. I do not find it necessary to go through their evidence in detail but I will point to portions of it that have assisted me in the decision to grant the Director’s application for permanent custody at this time. [ 34 ] Child Protection Workers Nancy Pellerin and Diakite Abdoul-Karim were called as witnesses by the Director.

They have both been substantially involved in this case. [ 35 ] They tell a story through their testimony of a young mother struggling with an addiction to alcohol which has considerably affected her ability to care for her children since 2008. [ 36 ] The Department of Child and Family Services has spent a considerable amount of time and effort over the years to assist M.J. so that she might be in a position to properly provide for her children. Those efforts have had limited and minimal success. [ 37 ] M.J. has had a very difficult life.

There have been long periods of time when she was homeless and unable to look after her children. She has not always maintained contact with the Department or her children and has, at times, been difficult to locate. At one point, while her children were in the temporary care of the Director, M.J. relocated to Cape Dorset. She did not contact the authorities at all during this period of time. [ 38 ] Until recently, M.J.’s access visits with her children have been unpredictable and inconsistent. [ 39 ] Constable Alan Foster gave evidence at the hearing.

He has had a long history of dealing with M.J. over the years. His testimony tells a tragic story of a young woman who has been caught up in the justice system since 2009, and who continues to struggle with her personal demons through her addiction to alcohol. [ 40 ] Constable Foster was the first officer on the scene of the fire which occurred in M.J.’s home on January 2, 2012.

Due to information the officer received from F.J. that his mother was responsible for bringing the fire into his room, he conducted a criminal arson investigation which resulted in no charges being laid. [ 41 ] Constable Foster’s investigation and the Office of the Fire Marshal Incident Report confirm that the fire started in the rear bedroom which was the one occupied at the time by D.J. and F.J. [ 42 ] At the time of the fire, M.J. was intoxicated and it fell to her brother to get the boys out of the house without injury. [ 43 ] The joint book of exhibits filed by the parties contain occurrence summaries from the RCMP related to M.J.

The first Occurrence

Summary is dated January 3, 2009, and the last Occurrence

Summary is dated June 1, 2013. There are 11 occurrences reported in 2009, 20 occurrences reported in 2010, 16 occurrences in 2011, 8 occurrences in 2012, and 4 occurrences in 2013. Most occurrence summaries identify M.J. as being intoxicated at the time of the RCMP contact. [ 44 ] The most recent occurrence

summary dated June 1, 2013, indicates that RCMP were called because there was a very intoxicated female walking around without shoes outside the Post Office. Members attended and located M.J. grossly intoxicated and unable to care for herself. She was lodged in cells until sober. [ 45 ] Constable Foster testified to M.J.’s criminal record.

In May of 2009, she was convicted of assault causing bodily harm and each year since there has been at least one conviction entered on her record. [ 46 ] In December of 2012, M.J. was convicted of child abandonment. [ 47 ] On July 5 of 2013, she was convicted of taking a motor vehicle without consent. At the time of the offence she was intoxicated and caused considerable damage resulting in a custodial sentence to be served in the community under various conditions. Part of the sentence was that she was to make restitution in the amount of almost $7,000.00. [ 48 ] E.C. testified on behalf of the Director.

He currently acts as a foster parent to both boys. He and his spouse have had the continuous care of D.J. and F.J. since the January 2, 2012, apprehension. Further, they have been involved in the boys’ lives on an interim basis since 2010. [ 49 ] Both boys appear to be doing well and are excelling in school. They have overcome a number of problems throughout this period of stability and have become a very important part of the family. [ 50 ] E.C. and his spouse hope to adopt D.J. and F.J. in the future. [ 51 ] Gilles Verreault is a mental health and addictions counselor working for the Government of Nunavut.

[ 52 ] He testified that M.J. came to see him in January of 2013. She wanted to go for treatment with respect to her addiction to alcohol so that she could get her boys back into her care. M.J. said that she wanted to learn how to live without alcohol in her life. At that meeting they discussed attending a residential treatment program and the need for after care and a support system after the program was completed. During the meeting with Mr. Verreault, M.J. was cooperative, polite, and sober.

When the discussion turned to after care, M.J. disconnected, left the meeting, and did not return. [ 53 ] Jeannie Bishop testified that she is a psychiatric social worker with the Government of Nunavut. She offers counseling services with respect to addictions and trauma. [ 54 ] In particular, she runs a relapse prevention program for clients who have completed alcohol addiction treatment programs. She works with the ladies who reside at the Safe Shelter and it is in this role that she met with M.J. [ 55 ] Ms. Bishop’s first meeting with M.J. took place May 25, 2013. At that time it was Ms.

Bishop’s opinion that although M.J. wanted to change her lifestyle and stop drinking, she was not yet committed to taking action. She was asked to attend the relapse prevention course and M.J. stated that she would do so. She did not attend and when Ms. Bishop met with M.J. again on June 7, 2013, she appeared to have “shut down”. M.J. said that she wanted to be sober but she was not willing to participate in a recovery plan. She did not return for counseling. [ 56 ] Ms. Jovi Mauricio was the only witness called by the Respondent. Ms. Mauricio is a client support worker at the Y.W.C.A.

She took a one year community service worker course prior to her employment. In November of 2012, she met M.J. when she was residing at the homeless shelter. Ms. Mauricio was assisting at the time by offering counseling to the women who live at the homeless shelter and also to those living at the safe shelter in Apex. The counseling is not in depth and has a social focus. She offers cognitive therapy to assist women to change their thought processes from negative to positive.

She does not offer any addictions counseling. [ 57 ] She advised the court that M.J. has been residing at the shelters since November of 2012, and has, for the most part, been abiding by the rules which include a zero tolerance for alcohol. Residents are not allowed to consume alcohol and cannot have it on the premises. If they do drink, they must leave and not return to the shelter until they are sober. M.J. has been given two warnings since February of 2013. [ 58 ] It is only the last month or two that M.J. has opened up to Ms. Mauricio. She has seen a marked improvement in her behaviour recently. [ 59 ] Ms.

Mauricio confirmed that M.J. does not feel comfortable being in court and that she is the type of person that you cannot force to do anything. She is confident in saying that M.J. loves her children a great deal. She has observed M.J.’s excitement and joy when she has the opportunity to visit her boys. [ 60 ] Ms. Mauricio testified that M.J. can reside at either shelter with her children if the court decides to return the boys to her care. [ 61 ] In cross-examination, however, Ms.

Mauricio admitted that M.J. has already stayed at the safe shelter in Apex beyond the 8 week limit usually allowed. [ 62 ] M.J. has applied for housing but the wait list currently in Iqaluit is three to five years. V. ANALYSIS [ 63 ] It is a very serious matter when the Director of Child and Family Services applies to the court for permanent custody. The court does not grant such an order without careful consideration, after hearing all of the evidence and applying that evidence to the law. [ 64 ] The burden of proof with respect to this proceeding remains on the Director throughout.

The standard of proof is on a balance of probabilities. [ 65 ] The parties agree that the overriding principle in this case is: what is in the best interest of D.J. and F.J.? In order to answer that question, there are a number of factors under s. 3 of the Child and Family Services Act that the court can consider. [ 66 ] Ms. MacKenzie, on behalf of the Director, went through each factor contained in s. 3 (

a) to (

j) and applied the evidence heard. I will not repeat this exercise here as it forms part of the record in this case. She concluded by advising the court that the only order, given the evidence heard and the total absence of any plan of care or evidence from the respondent, was the order sought. [ 67 ] Ms. Rowsell could not give the court any explanation for why her client chose not to participate in these important proceedings, other than to say that she was uncomfortable and unwilling. Although this is very unfortunate, it is a conscious choice made by M.J. at this time. [ 68 ] Ms.

Rowsell asked the court to consider a temporary custody order instead of a permanent custody order in favour of the Director. She advised the court that the test for doing so is for the court to find that there is a substantial likelihood that within a reasonable time, M.J. will be in a position to provide sustained and adequate care for her children. There is no evidence before me that would even come close to meeting that test. [ 69 ] D.J. and F.J. need to be loved and cared for. It is every child’s right to have their basic needs taken care of and to be part of a stable and loving family unit.

It is time to stop shuffling them back and forth between M.J. and others. It is time for them to enjoy the benefits of stability, consistency and certainty in their young lives. [ 70 ] The evidence shows that from the time of their latest apprehension the boys have thrived in the care of E.C. and his spouse. Their needs are being met in a loving and supportive family. It is in the best interest of the children for this to continue.

[ 71 ] E.C. testified that he and his spouse plan to apply to the Director to adopt both boys. They are in the best position to provide for the cultural, emotional, and financial needs of D.J. and F.J. [ 72 ] The boys have bonded and become a very important part of their lives, and the lives of E.C.’s extended family. [ 73 ] As Ms. Rowsell pointed out in her submissions, M.J. will always be D.J. and F.J.’s natural mother. That will never change. [ 74 ] I am convinced that M.J. must now concentrate on looking after herself so that she can get her own life on track.

She has a long and difficult journey ahead of her. There is no doubt in the Court’s mind that she loves her children and it is my hope that if the boys are adopted by E.C. and his spouse in the future, they will allow M.J. reasonable access. [ 75 ] I am encouraged by the fact that E.C. testified that both foster parents continue to believe that it is in the children’s best interest to maintain contact with their mother, her family, and their culture. VI.

CONCLUSION [ 76 ] I am satisfied, on all of the evidence, that D.J. and F.J. are children in need of protection within the meaning of the Child and Family Services Act . [ 77 ] I am further satisfied, on a balance of probabilities, that it is now in the best interest of D.J. and F.J. to grant the Director permanent custody of these children and I accordingly make an order to that effect. [ 78 ] General and reasonable access is to be provided to M.J., pending placement for adoption, at the discretion of the Director and according to the best interest of the children.

Dated at the City of Iqaluit this 12th day of August, 2013. ___________________ Justice B. Tulloch Nunavut Court of Justice