IN THE FAMILY COURT OF NOVA SCOTIA
Citation: Nova Scotia (Community Services) v. S.J.D., 2009 NSFC 2
Date: (20090116)
Docket: FANCFSA-054420
Registry: Yarmouth
Between:
Minister of Community Services (Annapolis County)
Applicant
v.
S.J.D., B.B. and P.R.
Respondents
Publication restriction: Publishers of this case please take note that Section 94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication. Section 94 provides:
94(1) No person shall publish or make public information that has the effect of identifying a child who is a witness or a participant in a hearing or the subject of a proceeding pursuant to this Act, or a parent or a guardian, a foster parent or a relative of the child.
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Judge: The Honourable Judge John D. Comeau, Chief Judge of the Family Court of Nova Scotia
Heard: October 9, 2008, in Comeauville, Nova Scotia
October 21, 2008, in Digby, Nova Scotia
Decision Date: January 16, 2009
Counsel: Donald B. MacMillan, Counsel for the Applicant
Peter VanFeggelen, Counsel for Respondent, S.J.D.
Amber Snow, Counsel for Respondent, P.R.
Respondent, B.B., unrepresented and not present
By the Court:
The Application:
[1] This is a review of a disposition, the original which was made on November 13, 2007, and provided that the child, T., born March *, 2007, remain in the care and custody of the Respondent P.R. The Respondents S.J.D. and B.B. are the mother and father (biological parents) of the child, T.. The Respondent P.R. is the maternal grandmother of the child. She was been a party to this proceeding from the first court appearance which was the 27th of August, 2007. On that date it was confirmed that the child would remain in her care and custody. The child was taken into care on August 17, 2007. At that time, the mother and child lived with her mother, P.R., having moved there on July 18, 2007, because of conflicts with the father, B.B.
[2] It appears that the initial documents prepared and filed on behalf of the Minister were in error as they included as a party P.R. when she did not come under any of those definitions of a party under S. 36 of the Children and Family Services Act. Clause 4 of the Order of Judge Levy (5 day stage) dated the 27th of August, 2007, deletes P.R. as a party but places the child in her care and custody with such access to the parents agreeable to the Agency. In a Pre-Protection Services Hearing Review Order dated October 2, 2007, by consent, P.R. was added as a party. She had become eligible for that status pursuant to S. 36(1)(b) being the guardian of the child.
[3] The Protection and Disposition Hearings were joined (consolidated under S. 40(2) of the Act) by consent of the parties. A Supervision Disposition Order was made on the 13th of November, 2007, and it placed the child in the continued care and custody of the maternal grandmother P.R. Access was to be to the parents with terms and conditions agreed to by the Applicant (Minister/Agency) in consultation with P.R.
[4] A review was made on February 12, 2008, and an Order issued which continued and extended the Order of November 13, 2007. A further review was heard on April 17, 2008, and this also continued and extended the previous Order. The actual Review Application and Notice of Hearing that the Court is dealing with refers to the Order of February 12, 2008.
The Facts:
History of the Parents’ Relationship - Protection Evidence
[5] The reasons for the apprehension of the child, T., born March *, 2007, concerned the relationship between the mother and father who were 19 and 21 years of age respectively at the birth of the child. They had lived together in L. until the father, B.B. went to jail and the mother moved in with the maternal grandmother, P.R.
[6] The Agency (Minister) became involved after a complaint was received from the grandmother, P.R. She was very upset, emotional and worried about her grandson, T.. The concern was that her daughter might reunite with the father, B.B., and there could be a compromise to the mother and son’s safety. There were allegations of arguments on a daily basis, both throwing things around the apartment and accusing and threatening each other, all of this in front of the child. The Respondent S.J.D. went to her mother’s home because B.B. kicked her out of the apartment. He had choked her on two occasions. When the agent interviewed the father, B.B., he acknowledged that he likes to drink (appeared intoxicated at the time of the interview) and that there was lots of fighting between he and the mother. He did not want to take anger management courses having done that eight times in the past. The indication was that he was not prepared to cooperate with the Agency.
[7] The Agency then attempted to arrange counselling for the couple with a psychologist skilled in addressing domestic violence issues. It appears neither party took advantage of this offer but the mother was cautioned, by the agent, about exposing her son to domestic violence.
[8] August 15, 2007, the Agent attended at the home of the grandmother, P.R. At that time she met with the mother who was discussing going back with the father although nothing had been done to alleviate the domestic problems. A discussion with respect to counselling ended with the mother becoming angry and denying that there had been any domestic disputes or physical violence in front of the child. She said she could not stay at her mother’s home because her brother, T., bugged her all the time. This conversation ended with the mother storming out of the room.
[9] Following a meeting of Agency staff it was agreed that the mother was to be advised she and the father, B.B., could not be together in the presence of the child. When the mother was told of the Agency’s position she became angry and said she did not want Agency or social workers at her house again and she and the father would work out things on their own. Following this communication agents determined that an application to the Court was necessary to find the child in need of protective services. The child, T., was taken into care on August 17, 2007. He was placed with the grandmother, P.R., at the time of apprehension (confirmed by Court order on August 27, 2007) and remains there to date.
Situation of Parents at the Disposition Review Hearing
[10] The father, B.B., has not participated in this proceedings except to give evidence at a hearing on August 7, 2008, concerning the parties’ child, Riley. This evidence forms part of the proceeding before the Court and has been admitted by way of a transcript under S. 96 of the Act. It is understood he wants access to his child.
[11] The child’s mother, S.J.D., wants joint custody with her mother. She is opposed to her mother having sole custody but agrees to her being the primary caregiver. All this is to be done under the authority of an application under the Maintenance and Custody Act if this proceeding under the Children and Family Services Act were dismissed. Access would have to be approved by P.R. for both parents.
[12] In November of 2007 the mother stopped residing with the father, B.B., and she has no contact with him now. In the past she has lied about seeing him saying he threatened her if she told. He has assaulted her in the past, left marks on her arms and destroyed some of her things. She is currently back to work and residing away from her mother’s home.
Issue:
[13] Whether the Minster (Agency) has proved a change of circumstances to warrant a variation.
[14] Whether the Minister’s Plan of Care is the least intrusive method and in the child’s best interest.
The Law:
[15] An Application for Review is governed by S. 46 of the Children and Family Services Act.
S. 46(1) A party may at any time apply for a review of a Supervision Order or an Order for Temporary Care and Custody, but in any event the Agency shall apply to the court for review prior to the expiry of the Order or where the child is taken into care while under a Supervision Order.
S. 46(4) - Matters to be Considered
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 it’s 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.
*Subsection 6 deals with Temporary Care and Custody Orders.
Section 46(5) - Powers of the Court on Review
On hearing of an Application for Review, the Court may, in the child’s best interest
(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 for Supervision Orders and in Section 45 for Orders of Temporary Care and Custody.
[16] The section requires a review of the Plan for the child’s care that the Court applied in its Disposition Order with a view as to whether it is being carried out. That Plan is dated November 22, 2007, and the disposition sought was as follows:
CFSA S. 42(1) - Custody of the child with his maternal grandmother, the Respondent P.R., under the supervision of the Applicant (Agency).
[17] The parents were to attend for psychological services, assessments and counselling. This has been done and the Court has had access to that report. Its emphasizes was on domestic violence issues and it was completed June 30, 2008, and recommended certain programs be taken by the parents to deal with physical or emotional abuse towards each other. This was not very successful and presently the parents are not together and admit they are not in a position to parent the child.
[18] The relevant sections of the Plan are as follows:
5(c) Possible placements with a relative, neighbour or other member of the child’s community or extended family that have been considered and rejected and reasons therefore.
T. is currently residing with his grandmother under the supervision of the Agency. This was deemed an appropriate arrangement on a short term basis. P.R., maternal grandmother, is single parenting at this time, has seven children of her own and limited support. The Department is concerned about Ms. R.’s ability to care for T. long-term. A home study has been arranged to thoroughly assess placement at her home on a long-term basis.
[19] Other parts of this Plan were not commented on because the Agency was uncertain about long-term placement at the grandmother’s home. At this review they rely on the professional report of Colleen Shepard as the long-term Plan of Care for T.. The Minister (Agency) has not filed a new detailed Plan of Care except to advise in the agent’s Affidavit attached to the Review Application the following:
8. Thus, the Applicant respectfully requests a hearing date for this Application to Vary the Disposition Order issued the 19th day of February, 2008, with respect to the child, T., to provide that the child be placed in the permanent care and custody of the Applicant pursuant to the Children and Family Services Act, S. 46(1) - (5)(e).
[20] The Affidavit attached to the Application discusses domestic violence between the parents and refers to the grandmother’s care (placement) of the child as being temporary. It makes reference to the grandmother having had extensive protection involvement and being a single parent with seven children of her own, has limited support and her husband is due to return to that home after serving prison time for ten convictions of sexually related offences against a child. The professional report of Colleen Shepard is relied on in support of the Application for Permanent Care and Custody.
No Agency Plan
[21] Family Court Rule 21.12 B requires the Agency on an application under S. 46 to file an Agency Plan prior to the hearing. This was not done but reliance is on a professional report. The form of Agency Plan would have provided more detailed information to the Court.
[22] Form 21.12 B (Agency Plan) is summarized below. Its purpose is to provide the Respondents (parents or guardians) with specifics of what the Minister is proposing for the long-term care of the child. Completing and filing this form provides the parents or guardians with the reasons why the Minister believes they must lose custody of their child. It is part of the evidence to assist the Court to consider whether the least intrusive alternative has been applied and failed.
Agency Plan for the Child’s Care
1. Disposition Order sought.
2. Description of services to be provided to remedy the condition or situation on the basis of which the child was found in need of protective services:
(a) Agency services;
(b) other community resources.
3. Criteria by which the Agency will determine when its care and custody or supervision is no longer required (specify the objectives of the Agency’s intervention and how attainment of those objectives will be determined).
4. Estimate of the time required to achieve the purpose of the Agency’s intervention (including the appropriate date for review, specific time lines with respect to service plans and prognosis).
5. Where the Agency proposes to remove the child from the care of a parent or guardian:
(a) Explanation of why the child cannot be adequately protected while in the care of the parent or guardian. (Refer to the condition or situation on the basis of which the child was found to be in need of protective services).
(b) Description of past and present services.
Services that have been attempted and their current status. (Include any reasons why the services have failed, if applicable).
Services that have been refused by the parent or guardian. (Specify the reasons for the refusal and any renewed offer of services made subsequent to that refusal).
Services that have been considered, but would be inadequate to protect the child. (Specify why the services would be inadequate to protect the child).
(c) Possible placements with a relative, neighbour or other member of the child’s community or extended family that have ben considered and rejected and reasons therefor.
(d) What efforts, if any, are planned to maintain the child’s contact with the parent or guardian. (Specify the proposed frequency and terms of any such contact).
6. Where the Agency proposes that the child be placed in the temporary care and custody of the Agency:
(a) A description of the child’s needs with reference to the findings of current or previous assessments.
(b) A statement of the goals to be achieved for the child while in temporary care and custody.
(c) A statement of the objectives to be used to achieve the specified goals for the child.
(d) A statement of the educational program for the child.
(e) A statement of the ways in which the child’s parents will be involved in the Plan of Care, including arrangements for contact between the child and the child’s family.
(f) Particulars of any specialized service to be provided.
(g) Particulars of the dates for review of the Plan of Care and revisions to the Plan of Care, as necessary.
(h) A statement of the anticipated Plan at final disposition, where applicable.
7. Where the Agency proposes that the child be placed in the permanent care and custody of the Agency:
(a) Why the circumstances justifying the proposal are unlikely to change within a reasonably foreseeable time not exceeding the maximum time limits. (Specify the barriers to change, Agency efforts to remedy or alleviate those barriers and why those efforts would be unsuccessful within the maximum time limits provided in the Act).
(b) Description of the arrangements made or being made for the child’s long-term stable placement. (Refer to the child’s present placement, any intended changes to that placement, any special needs of the child, availability of long-term placements, Agency’s plan to identify a permanent placement for the child, adoption prospects, et.).
(c) Access, if any, proposed for the child and any terms and conditions to be included in such access arrangements.
[23] The least intrusive alternative is described in the preamble to the Children and Family Services Act.
And whereas the basic rights and fundamental freedoms of children and their families include a right to the least invasion of privacy and interference with freedom that is compatible with their own interests and of society’s interest in protecting children from abuse and neglect.
[24] The intent of using the least intrusive principle in child protection proceedings is to find a way that children can remain or be returned to their parents’ care. When that is not possible, which is the case before the Court, the Minister saw fit to place the child with his grandmother even though they had concerns about her parenting with referrals as far back as 1997. The argument is that this was only a temporary placement. Even this type of placement has to be considered by the Minister as in the child’s best interests.
[25] A Plan of Care must state more than the disposition sought. There are specific headings that must be completed which include services provided and an explanation as to why the child cannot be adequately protected while in the care of the parent or guardian. There should have been a list of services, if any, refused by the guardian with specifics of why permanent care should be ordered. In this particular case those items would have been outlined with respect to the guardian (grandmother). There should have been evidence of the arrangements being made for the child’s long-term stable placement.
[26] The least intrusive alternative in the child’s best interest was considered by the Agency on behalf of the Minister. This was to place the child with the maternal grandmother. This placement continues and was confirmed at the five day hearing continuing through the consolidated Protection and Disposition Hearings and two Review Hearings.
[27] The Minister (Agency) has not provided a new plan which would describe how these least intrusive measures have failed. They rely on the professional report of Colleen Shepard to answer these questions.
Temporary Placement versus Long-Term Placement
[28] The child, T., has been in the care of the grandmother since August of 2007 by agreement of the Minister. There were no concerns that the child was at risk. What evidence is there that it is not in the long-term interests to remain where he is? The professional evidence speaks of history of relationships, residence moves, limited support system and failure to follow through with professional help. Most of this historical data is gleaned from Agency notes. These are old allegations in current proceedings and there is some concern about their relevancy and prejudicial affect. (See Minister of Community Services and C.R. and T.G. and D.C. and H.C., SFHCFSA 056570, MacDonald, J., SCFD).
[29] There is very little evidence before the Court to prove on a balance of probabilities that the present status quo is not in the child’s long-term interests. No long-term plan for the child’s care has been presented to the Court.
Professional Report
[30] The Minister of Community Services relies on a professional report (Parental Capacity Assessment) prepared by Colleen Shepard, M.S.W., R.S.W., respecting the child, the subject of this proceeding, T., born March *, 2007. This report was prepared and completed on February 15, 2008, and at that time the child, T., was residing with the Respondent, P.R., being been placed there by recommendation and agreement of the Minister (Agency) after the child was apprehended on August 17, 2007.
[31] The assessor notes:
The Child Welfare Agency was in agreement with the above-noted plan for T.’s care with the understanding it would be a temporary arrangement which would allow the parents time to participate in the services necessary to improve their relationship which was characterized by frequent arguing and conflict and what appears to have been incidents of domestic violence.
[32] The grandmother’s intent was to retain day-to-day care of the child. (Present plan is custody under the MCA).
However, Child Welfare personnel have concerns about (grandmother’s) situation in that she has seven children of her own ranging in ages from T.’s mother (now 20) to N. who is now about two years old. The grandmother is a single parent at the present time and the Agency was involved with her back in 1995. She and the children had extensive family support services with minimal improvement in her parenting skills and practices. Her husband, and the father of her three youngest children, is presently incarcerated for sexually assaulting a young girl.
[33] The father of T. refused to participate in the assessment following the initial interview and as a result it was impossible to assess him as a parent. Collateral sources were used to comment on impressions and concerns about him.
[34] At this point in time it is clear neither parent is in a position or capable of having the child returned to them. Given the Minister’s (Agency’s) plan it’s important to examine those aspects of the report that apply to the child and the grandmother’s environment and parenting.
Child Behavioural Problems
[35] In February, 1997, the grandmother asked for Agency help for one of her children who was roaming around the house at night and lighting matches. This child also had a negative effect on one of his brothers. Family support services were provided and the child was referred to Mental Health Services.
[36] A referral to the Agency in April, 1997, alleged the mother of T. was sexually assaulted by a boyfriend of the grandmother. This was not corroborated by the mother and the grandmother did not “access the services of the Family Support Worker who was prepared to provide information regarding sexual development and safety issues for her daughter.”
Discipline of Children
[37] In the fall of 1997 a referral was made to the Agency alleging the grandmother’s children were “subjected to harsh and unusual discipline and were being humiliated and emotionally abused. She acknowledged “inappropriate disciplinary techniques.”
[38] Certain services were provided in the spring of 1998 to correct this problem including attending a mother’s group at the Family Resource Centre and counselling with the children. In July, 1998, a Family Skills Worker began parenting skills and anger management programs with the grandmother who admitted she yelled at the children. File notes dated March, 1999, indicate “the grandmother was still involved with counselling and the services of the Family Support Work and that the family appeared to be doing well.”
[39] As the years passed the Agency continued to assist the grandmother to cope with stress and child behaviour problems. Discipline problems continued to be investigated.
In mid July, 2001, the decision was made to close the file since the grandmother seemed to be coping. The children were involved in summer programs, it appeared that housekeeping standards had improved following the family’s move back to L., the newborn baby seemed to be doing well and there were no further services to offer.
[40] Again in 2002 a referral was made respecting inappropriate physical discipline. The Agency investigated and took no action. Further referrals were made in May and July of 2003 which concerned problems with T.’s mother (teenager at the time) and relationship with the grandmother.
[41] In February, 2006, the Agency was again involved when the grandmother’s husband was charged with sexually assaulting a thirteen year old girl. He is presently incarcerated but release is eminent in 2009. This was again a very stressful time for the grandmother and the Agency workers met with her to emphasize the seriousness of the situation and the need for her to focus on the needs of the children. She remained preoccupied with the charges against her husband and did not believe them. During this period there were concerns about housekeeping standards and the safety of the children. This eventually improved.
[42] Following the husband’s guilty plea on May 8, 2007, on ten sexual assault charges in that same month the grandmother and common-law husband were married before his sentencing. The Agency also arranged for the husband to have a supervised visit with the children before he began serving his prison term and this went well.
[43] In June, 2007, Agency workers met with the grandmother to emphasize the risk the husband posed to the children would have to be lowered considerably before he could be a part of their lives and this would include successful treatment for him as well as treatment and education for her.
[44] The assessor says at the time of her report there was no open Agency file on the grandmother and her children. The final referral was in October, 2007, when she asked for financial help for babysitting and transportation costs to take one of the children to mental health appointments.
[45] The proceeding before the Court initially started as a referral by the grandmother concerned about her daughter’s parenting of T. and her relationship with the child’s father.
The Child T.
[46] T. was born March *, 2007, and is described as a little guy with blond hair and blue eyes.
[47] In February, 2008, the assessor obtained information from the grandmother on the child’s development.
(The grandmother) has expressed some concern about possible developmental delays saying that T. didn’t sit up by himself, crawl or walk as early as her children did. P.R. says that until recently he had difficulty holding his own bottle and his muscle tone appears to be “floppy”. However, she adds that by early January he was starting to catch up and to move around on his own a bit more. T. is crawling now and standing up holding on to furniture. When observed by the evaluator T. appeared to be an affectionate and responsive baby.
Information from Collateral Sources
[48] The family physician has concerns about the mother’s parenting but while expressing concern over the grandmother’s judgement to take on another child, he indicates, “He has no serious concerns about her.” Concluding in correspondence:
I have no information in my interactions with or in my records of this family that give me concern about their caregivers ability to respond appropriately to the childrens’ needs.
[49] A psychologist at the local Mental Health Centre dealt with one of the grandmother’s children diagnosed with ADHD, although the grandmother did not have time to participate with the child in group treatment a day service for Youth Program was set up and it continues there with another psychologist. He indicates the grandmother continues to maintain regular contact with the program personnel.
[50] The Income Support Worker for the Department of Community Services advised the assessor positively:
Based on her knowledge of the family she offered her impression that (the grandmother) loves her children and enjoys them, especially when they are babies. She recalls that there was some concern about hygiene in the home at the time although she is not aware of this since P. moved to her present accommodation in the summer of 2006.
[51] Public Health Services reported the home to be clean and the children doing well.
[52] School authorities (teachers, principal) interviewed described assistance for N., who required a resource teacher. She described him as “a very quiet but nice and cooperative little boy who appears to be happy and to receive adequate physical care.”
[53] Both M. and T. are in modified academic programs. The principal describes M. as a “good kid who is quiet and a bit of a loner.” Although there was trouble with T. there has not been a problem since he transferred to the Day Services Program. The principal indicates the grandmother “has been cooperative with school personnel” and was very receptive to T. attending the special program. This has been confirmed by the vice-principal, as well.
The Grandmother’s Children
[54] Other than the Respondent, S.J.D., the grandmother has the following children:
M. - Born October *, 1989, is very helpful with the younger children and the assessor describes him as “honest and forthright about his feelings and concerns.” He indicated that although he feels that he is expected to help too much with regard to carry for his younger siblings, this is “okay” with him but he would like to have more time to himself. He helps both feed and babysit the children, takes them to the bus and goes to church with the younger children.
T. - Born September *, 1993, is described as being a friendly and likeable young boy. He has had behavioural problems but programs supported by the grandmother has helped. He is on medication for ADHD and appears to be doing well.
N. - Born June *, 2001, is described as cute and very “quiet little guy”. He has academic delays but is very well behaved at school. He loves his mom and dad and wants him to come home.
N. - Born March *, 2004, is described as a handsome little boy who presents as being very quiet and shy. No health problems and very smart for his age.
I. - Born April *, 2005, described as a “cute little guy” who is clingy and demanding of his mother’s attention.
N. - Born December *, 2006, described as “shy with strangers but is an engaging, chubby baby who appears to be developing well.”
[55] In the EVALUATION section of this report the assessor indicates she was asked to assess the plans and situations of the mother and father of the child. The Minister’s (Agency’s) plan is to remove the child from the grandmother’s home and place him for adoption (permanent care and custody). The parents agree they are unable to parent the child and agree to custody under the Maintenance and Custody Act to the grandmother, access to be arranged through her.
[56] Particularly relevant to this proceeding is the home and parenting skills of the grandmother and not the parents because they are not asking for return of the child.
[57] The assessor’s recommendation is that the child, T., be placed in foster care with the intent of having him adopted. This conclusion suggests that the permanent care plan should be carried out “unless there are significant changes and improvements in the very future in the ability of either parent or the grandmother to provide satisfactory long-term care for them.”
Specific Concerns of the Assessor Regarding the
Grandmother’s Parenting and Environment
History of Relationships
[58] The grandmother has had seven children from four different partners and has described these men as abusive and “idiots”.
[59] With respect to her husband serving time for sexual assault, the children somehow have the opinion he could not have done it. “One cannot help but wonder what message the grandmother is giving about his guilt and convictions.” The evidence does disclose that the children have a positive feeling for this man which is legitimate and they miss him.
Physical Instability
[60] The grandmother has a history of physical moves which was disruptive to the children’s schooling.
Limited Support System
[61] The assessor says, “She has her father and church supports but little else ...” As a caretaker of eight children she has a lot on her plate and an extremely limited support system.
Failure to Follow Through with Professional Help as Indicated
[62] The assessor believes that the involvement of support workers over several years resulted in little change in parenting beliefs and practices. Examples are failure to follow through in 1999 on counselling for anger management. Failure to follow up counselling for her past abusive upbringing and sexual abuse. Also counselling to deal with her husband’s convictions for sexual abuse. She said it was a waste of time as he will not be returning home.
[63] Reference is made of her delay in getting help for T. at an early stage so his ADHD diagnosis could have been made earlier.
[64] There is also concern about the grandmother’s willingness to work honestly and cooperatively with the Agency.
[65] In addition to the specific recommendation of permanent care, the assessor makes the following proposal if the child is to remain with the grandmother.
It is suggested that whatever is decided with regard to the two children in question, P.R. has to address the situation with her husband, C.R., by engaging in therapy as recommended jointly by Child Welfare and Correctional Services personnel. It is also suggested that all available information regarding C.R., past and present functioning, be available to Child Welfare personnel if consideration is given to permitting him to return to live with P.R. and her children.
If T. remains in P.R.’s care, it is suggested that it be mandatory that she demonstrate her willingness and ability to change her parenting practices by learning and implementing more positive and less punitive child management techniques with all of the children; that she follow through with getting her own children, T. and N., the help they need and that she cooperate fully with school personnel to address their academic needs.
It is recommended that T. be assessed for possible developmental delay since P.R. has raised this as a concern. This could include initial screening by the family doctor and public health nurse and referral, if indicated, to V. Child Development or to an early intervention program. It is suggested that P.R.’s two youngest children would benefit from participation in the latter program as well.
With the consent of the parties, it is recommended that copies of this report or relevant information from the report be shared with those professionals who are involved with assessing and/or treating family members.
Use of Professional Evidence (Parental Capacity Assessment)
[66] The assessor’s evidence contained in a written report refers to Agency case notes dated August 3, 2007, to January 9, 2008, re: S.J.D. and July 24, 1995, to November 7, 2007, re: P.R. They were used by the assessor to formulate and come to an opinion. There is over reliance on the notes which are internal documents not tried and tested as to the accuracy of the truth of what is contained therein. These notes were not disclosed to Counsel for the Respondents. This was discussed by MacLellan, J., in C.A.S.N.D. and R.M., 2003, NSSF 19 (Can LII):
Secondly, I find that he relied to a substantial degree on the material in the Agency file, which was not subject to cross-examination. The Agency file is an internal document. It was not meant as the ultimate document of truth and does not have any of the safeguards. Perhaps the most glaring example is the reference to N.D.’s loss of her child through possibly a dirty baby bottle. It was clear at the end of the day that there was never evidence of this allegation. This is a highly prejudicial comment to consider in the absence of proof.
The use of this type of speculation and the basis that an opinion witness is able to use background material is a very important issue. It has been referred to by many Courts. I think it is particularly important in Children’s Aid cases where the Agency staff, by their mandate, have to take unsubstantiated complaints people make and look into the allegations. The Children’s Aid Society staff dismiss them or validate them or continue their investigation until they complete a risk assessment. This is a running file - it is not a truthful chronology - it is a working document for an Agency who is given the obligation to look into matters.
[67] As a running file, the Agency notes provide a chronology of events to the present time. The expert’s opinion cannot be based on one segment of this historical document.
[68] Justice Sopinka in R. V. Lavallee 1990 Can L II 95 S.C.C. referred to the use of expert evidence based on second hand evidence:
1. An expert opinion is admissible if relevant, even if it is based on sceond-hand evidence.
2. This second-hand evidence (hearsay) is admissible to show the information on which the expert opinion is based, not as evidence going to the existence of the facts on which the opinion is based.
3. Where the psychiatric evidence is comprised of hearsay evidence, the problem is the weight to be attributed to the opinion.
4. Before any weight can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist.
[69] It is within the Courts discretion to look at the evidence as a whole and consider the tools and references the assessor used to come to her conclusion and decide what weight will be given to the report.
Conclusion/Decision
[70] The Court has to consider whether the Minister (Agency) has proved a change in circumstances since the previous Disposition Order. Section 45 of the Children and Family Services Act provides a time line for dispositions with respect to young children:
45(1) Where the Court has made an order for temporary care and custody, to total period of duration of all dispositions orders, including any supervision orders, shall not exceed
(a) Where the child was under six years of age at the time of the application commencing the proceedings, twelve months
[71] The original disposition placing the child in the care of the grandmother P. R. was made on November 13, 2007 and the required review was commenced on October 9, 2008. The Court has no jurisdiction to make any further temporary care and custody or Supervision Orders. Those options under the statute the Court is dealing with are permanent care and custody or dismissal.
[72] At the time of the placement of the child with the grandmother the Minister’s agents were satisfied that placing him in this residence was not contrary to his interests. It was the duty of the Minister to comply with section 39(8) of the Act.
Where the Agency places a child who is the subject of an order pursuant to clause (e) of subsection (4), the Agency shall, where practicable, in order to ensure the best interests of the child are served, take into account.
(a) the desirability of keeping brothers and sisters in the same family unti;
(b) the need to maintain contact with the child’s relatives and friends;
(c) the preservation of the child’s cultural, racial and linguistic heritage; and
(d) the continuity of the child’s education and religion.
[73] The placement was made by consent of the parties and based on affidavit evidence before the Court which required the following consideration:
In subsection (7), “substantial risk” means a real chance of danger that is apparent on the evidence.
(7) The Court shall not make an order pursuant to clause (d) or (e) of subsection (4) unless the Court is satisfied that there are reasonable and probable grounds to believe that there is a substantial risk to the child’s health or safety and that the child cannot be protected adequately by an order pursuant to clause (a),(b) or (c) (subsection (d) refers to placement in the care and custody of a person other than a parent or guardian).
[74] Finally when a child is being placed in a residence the Minister and or the Court shall consider the purpose of the Act and the paramount consideration.
Purpose and paramount consideration
2 (1) The purpose of the Act is to protect children from harm, promote the integrity of the family and assure the best interests of the children.
(2) In all proceedings and matters pursuant to this Act, the paramount consideration is the best interests of the child.
[75] It was the Minister’s decision to place the child with the grandmother and this status quo was confirmed by a number of orders including a Disposition Order. The other parties agreed with the Minister’s decision which was sanctioned by the Court taking into consideration the factors referred to earlier.
[76] At the time of placement the child’s mother was living in the grandmother’s residence but that is no longer the case. The child has resided with the grandmother since the date of apprehension which was August 17, 2007. The problems between the parents have been discussed earlier in the facts of this case. Those problems still exist and they collectively or individually are not capable of parenting the child.
[77] At the time of apprehension the Minister’s Agent in her affidavit referred to the domestic violence between the parents and concluded the child’s safety would be assured at the grandmother’s residence.
[78] Prior to apprehension Agency staff met and decided that T.’s safety could only be protected if a Court application were made. It was agreed that the child needed to be taken into care unless another acceptable arrangement could be made. There was agreement such an option could be that T. be placed in the care of his grandmother P.R. under the voluntary supervision of the Agency, as long as P.R. agreed that S.J.L., and B.B., would not be together in the presence of T.. If one of the parties were not in agreement with this T. would have to be apprehended and this is what happened.
[79] At this point in time there was no reference to the placement being temporary, however, subsequent evidence has confirmed that was the intent of the Minister. Prior to final disposition all placements are temporary because the intent of the Act is to find ways to eventually reunite children with their parents. The preamble to the Children and Family Services Act confirms such an approach:
WHEREAS the family exists as the basic unit of society, and its well-being is inseparable from the common well-being;
AND WHEREAS children are entitled to protection from abuse and neglect;
AND WHEREAS the rights of children are enjoyed either personally or with their family;
AND WHEREAS children have basic rights and fundamental freedoms no less than those of adults and a right to special safeguards and assistance in the preservation of those rights and freedoms;
AND WHEREAS children are entitled, to the extent they are capable of understanding, to be informed of their rights and freedoms, to be heard in the course of and to participate in the processes that lead to decisions that affect them;
AND WHEREAS the basic rights and fundamental freedoms of children and their families include a right to the least invasion of privacy and interference with freedom that is compatible with their own interests and of society’s interest in protecting children from abuse and neglect;
AND WHEREAS parents or guardians have responsibility for the care and supervision of their children and children should only be removed from that supervision, either partly or entirely, when all other measures are inappropriate;
AND WHEREAS when it is necessary to remove children from the care and supervision of their parents or guardians, they should be provided for, as nearly as possible, as if they were under the care and protection of wise and conscientious parents;
AND WHEREAS children have a sense of time that is different from that of adults and services provided pursuant to this Act and proceedings taken pursuant to it must respect the child’s sense of time;
AND WHEREAS social services are essential to prevent or alleviate the social and related economic problems of individuals and families;
AND WHEREAS the rights of children, families and individuals are guaranteed by the rule of law and intervention into the affairs of individuals and families so as to protect and affirm these rights must be governed by the rule of law;
AND WHEREAS the preservation of a child’s cultural, racial and linguistic heritage promotes the healthy development of the child;
[80] The parents of T. are unable to parent the child (supervise as per the preamble above) and all other measures are in appropriate. The grandmother P.R. is a party to this proceeding and has had the child residing with her since August of 2007. In order to apply Section 46(4)(a) of the Act, the circumstances existing at the time of placement and at the date of this hearing concerning the grandmother P.R. have been considered. She is a party to the proceeding and entitled to ask the Court for a remedy under the Act.
[81] The evidence that has been outlined earlier indicates at the time T. was placed with his grandmother there were already seven children of her own residing there which included T.’s mother age then 20. Other children included M., born in 1989, T., born in 1993, N., born in 2001, N., born in 2004, I., born in 2005 and N., born in 2006.
[82] The mother of T. has left the home but she continues to have access arranged through the grandmother. Since the professional report was done the Court placed an infant child of the mother with the grandmother on a temporary basis.
[83] The Minister relies on a professional report, which is not very weighty because of its reliance on Agency notes. Reference to collateral sources by the assessor have been noted. This is mostly a historical document which confirms concerns over the living situation of the grandmother from child behavioural problems, discipline of children, history of relationship with men, and physical instability. These are concerns that existed at the time the Minister placed T. with his grandmother. She has addressed those issues over the years and the description of each one of her children and her parenting of them has been addressed by the assessor.
[84] The children are doing well and the grandmother is providing for their needs as best she can. This is a large family and that should be taken into account. Family dynamics are always changing.
[85] There is no material change in circumstances since the disposition was made. One child (the mother) has left and another child has been added. The Minister relies on the professional report to prove a change in circumstances and it does not do this. It is at most a document which describes the Minister’s involvement with the Family.
[86] The Court is satisfied that the grandmother P.R. has availed herself of relevant services provided by the Minister, and she has been mostly successful with them.
[87] The Minister has failed to provide the Court with a long term plan of care required by the Act. There is no proof that the plan relied on at disposition is not working. On a balance of probabilities the Minister has not proven that permanent care and custody is the least intrusive option.
[88] Finally considering the evidence as a whole the Court is satisfied the child is being well cared for by the grandmother and his needs are being met. It would be contrary to the child’s best interest to take him away from the family unit that has been established at his grandmothers. It would not be the least intrusive alternative. The Minister’s formal involvement is an end and this matter is dismissed.
[89] The Disposition Order has expired. It is hoped the Minister will, if requested, provide services under Section 13 of the Act to promote the integrity of this family.
Maintenance and Custody Act
[90] This decision is made under the Children and Family Services Act but is it necessary to comment on the ultimate custody of the child. In addition to the custody issue of T. access for the parents has to be considered. There is also the concern about the possible return to the home of the grandmother’s husband, a convicted child molester who is presently incarcerated.
[91] The application under the Maintenance and Custody Act on which the Court will proceed is dated October 2, 2007 for standing to apply for care and custody. A request for standing is not necessary as the grandmother is a guardian under the MC Act with a right to apply for custody. The Respondent parents have had notice. Their concern is that they have access to the child.
[92] At the present time the Court is of the opinion that there should be one person with authority to deal with issues that may arise in the child’s life. Further there have to be specific conditions put in place concerning contact with the grandmother’s husband and/or his eventual return to the household, (see Blois v. Blois (1988), 83 N.S.R. (2d) 328 (N.S.C.A.).
[93] Council for the grandmother P.R. shall prepare the order which will contain the following:
1. Custody to P.R. with reasonable access to S.J.D. and B.B. arranged through P.R. and subject to any conditions she may place on visiting.
2. That P.R. will ensure that the child has no contact with her husband C.R.
3. That if P.R. intends to have her husband return to the home where he will have contact with the child she will be required to engage in therapy recommended by correctional services.
4. That P.R. will not allow her husband C.R. to have contact with the child or reside in the home with the child until further order of the Court.
[94] Order accordingly.
________________________________________ John D. Comeau, Chief Judge of the Family Court