IN THE SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: E.S. v. Children’s Aid Society of Cape Breton-Victoria, 2006 NSSC 303
Date: 20060529
Docket: SFSNCFSA-019697
Registry: Sydney
Between:
E.S. and M.S.
Applicants
v.
The Children’s Aid Society of Cape Breton-Victoria
Respondent
|
Editorial Notice
Identifying information has been removed from this electronic version of the judgment. |
RESTRICTION ON PUBLICATION: Throughout the Decision, reference to the parents and children's names must be changed to read E.S., M.S., D., R., and E., including all references in the quotes cited in the case law.
Judge: The Honourable Justice M. Heather Robertson
Heard: May 8, 9, 10, 11 and 29, 2006, in Sydney, Nova Scotia
Written Decision: October 16, 2006 (Oral: May 29, 2006)
Counsel: Mary Francis Roach MacDonald, for the applicants
Robert Crosby, Q.C., for the respondent
Robertson, J.: (Orally)
[1] The applicants E.S. and M.S. seek the termination of the respondent Children’s Aid Society of Cape Breton - Victoria’s (“CAS”) order of the permanent care of the S.’s three children: “D.”, born August *, 1998; “R.”, born November *, 1999, and “E.”, born March *, 2001.
[2] M.S. is the biological mother of all three children and E.S. is the biological father of the youngest child.
HISTORY OF THE PROCEEDINGS:
[3] The history of these proceedings is relevant to the present application. Counsel for CAS have submitted that
1. The operation of s. 48(4) of the Children and Family Services Act Chapter 5 of the Acts of 1990 as amended precludes the court from having jurisdiction to hear an application to terminate permanent care once notices of proposed adoption have been issued.
2. The applicants had failed to show that there had been any significant change since the making of the order for permanent care and custody.
3. That all of the medical evidence in this proceeding in support of the applicants’ claim relates to programmes largely undertaken and reports written in 2005-2006, after the applicants had filed an application for leave pursuant to s. 48(6)(c) in December 2004.
4. Lastly, counsel for CAS has submitted that delays occasioned by adjournments in hearing this application were at the request of counsel for the applicants, who needed time to perfect her application by securing more recent medical and psychological evidence to meet the burden on the applicants arising out of s. 48(10)(a).
[4] Counsel for the applicants on the other hand had also expressed concern that delays in hearing the application to terminate care were institutional delays. Much of the resources the S.’s needed to avail themselves were services that were unavailable. The public system takes months to access. Counsel has reviewed that chronology, and I do not propose to repeat it here, but I am well aware that appointments made following the June 2004 hearing, with social workers, Mr. Jim Gouthro, Ms. Marjorie MacDonald and Ms. Dawn MacKeigan took some months to set up.
[5] Accordingly, I set out a brief history of the proceedings as I understand them, as represented by counsel to the court, from the history of various orders granted in these proceedings.
[6] The CAS took these children into temporary care on September 26, 2002. E.S. and M.S. were given some access to the children both supervised and unsupervised at various times, both within their home and later at the CAS offices, from October 2002 to April 29, 2004, when all visitation was terminated.
[7] The permanent care order was granted by Justice Clare MacLellan on June 11, 2004. An appeal of this decision to the Nova Scotia Court of Appeal was dismissed by order dated October 27, 2004.
[8] By November 26, 2004, the CAS had successfully identified two prospective adoptive homes for R. and E. the two youngest children. That process was underway, but notices of the proposed adoptions were not yet issued, when on December 20, 2004 the applicants made an application for leave to terminate the permanent care order pursuant to s. 48(6)(c) of the Children and Family Services Act. They were represented by an agent, Mr. O’Neil well known to the court as an advocate for parents who had proceedings before the court relating to child custody matters and the CAS.
[9] The matter was set down for a hearing on February 9, 2005. Prior to the application being heard, the adoptive placements were finalized and notices of proposed adoptions were filed with the Minister.
[10] The parties appeared in Chambers February 9, 2005 before Justice Clare MacLellan. CAS took the position that the court had no jurisdiction to entertain an application to terminate in respect of R. and E., by virtue of s. 48(4) of the Act.
[11] The S.’s were by this date represented by their present counsel Ms. Mary Francis Roach MacDonald. She asked for time to review the file and the matter was adjourned to February 25, 2005 and again adjourned for a period of six weeks as was agreed to by counsel.
[12] In April 2005, Ms. MacDonald filed a new application to terminate the order for permanent care.
[13] On June 9, 2005 before Justice Arthur LeBlanc, counsel for the applicants indicated that they intended to proceed with the application for leave rather than the application to terminate. (E.S. v. Children’s Aid Society of Cape Breton - Victoria [2005] N.S.J. No. 269, 2005 N.S.S.C. No. 172 at para 3.) However, counsel for the applicants appropriately points out that Justice LeBlanc also responded to the technical provisions of the Act, in deciding to grant leave rather than addressing the full merits of the application at that time. His comments are addressed in paras. 64-67 of his decision.
[14] Leave was granted by his written decision dated June 22, 2005. Justice LeBlanc declined to order access on the evidence then before him.
As I am proceeding on the basis of the application for leave, I am not considering the application to terminate. Therefore, I believe I have jurisdiction to entertain this application in respect of all three children, not only D. This is so despite the fact that notices of proposed adoption were filed in late January 2005 for the other two children, at least two months after the application for leave was filed.
The Agency properly points out that there are restrictions on the right to apply to terminate, and that in the case of an application for leave, it can only be done with leave if the application is filed within six months of the date of final disposition of an appeal of an order for permanent care and custody. The Agency states that an application for leave to terminate is neither conceptually nor legally equivalent to an application to terminate and does not have the effect of placing "termination" substantially in issue before the court. If this were otherwise, the Agency argues, the intention of s. 48(6) would be muted because "a parent could keep the agency and its plans on a permanent hold simply by continuously applying for leave."
I am of the view that once an application for leave is properly before the court, and steps are taken to place of the children in an adoptive home and to provide a notice of adoption pursuant to the provisions of the statute, it is nevertheless appropriate to deal fully with the application for leave. This application cannot be arrested simply because in the meantime the Agency has taken steps to have the children adopted. Admittedly, there is a restriction on making an application to terminate a permanent care order once the notice of intended adoption has been served. This is provided in s. 48(4) of the Act. I also do not agree with the submission of the Agency that the application for leave somehow lose its status simply because more than six months has elapsed. The intention of the Legislature was to allow a restricted opportunity for parents or legal guardians to seek termination of a permanent care order if this attempt was made within six months of the permanent care order. That is why the Legislature did not permit applications to terminate within the six‑month period without leave of the court. However, once the application for leave is sought, I am satisfied that there is a corresponding duty on the part of the Agency to suspend the filing of the notice of proposed adoption and the adoption process. Professor Thompson states at page 254 of his Annotated Children and Family Services Act (1991):
... It can properly be argued that an adoption notice should not be filed until the disposition of the leave application ... but once leave has been denied, it is up to the applicant party to seek a stay pursuant to Section 49(2) or (3) pending any appeal of the denial, in order to forestall any continuation of the adoption process. By this means, it should be possible for the courts to address the merits and demands of individual cases, with the onus squarely placed upon the appropriate party in such situations.
The Agency acknowledges that in C.A.S. of Cape Breton‑Victoria v. G.L. [2004] N.S.J. No. 289 (S.C.) Wilson J. heard an application for leave despite the fact the Agency had given notice of proposed adoption. The Agency claims that s. 48(4) overrides any application for leave. Therefore, the Agency contends, an application for leave does not preclude the filing of a valid notice of proposed adoption, because if it did it would have the effect of stalling permanent planning for the children. I adopt the position of Justice Wilson in G.L. The application to leave can be heard despite the fact that the Agency has given notice of the proposed adoption of two of the children.
[15] He then urged the parties to proceed with haste as children’s lives do not stand still. The order was issued August 11, 2005. The matter did not immediately proceed and at the request of counsel for CAS, Justice LeBlanc held a case review hearing on November 1, 2005, in which it was agreed that the S.’s counsel would file its completed application to terminate care by November 8, 2005 and be allowed to file supplementary affidavits, following further medical assessment of M.S., by November 18, 2005 with the respondent CAS allowed to file affidavits in response by November 28, 2005. The hearing was set for January 12, 2006 and subsequently adjourned by agreement of counsel to March 20, 2006.
[16] In the meantime, the applicants received notice by letter dated February 17, 2006 that a final order of adoption had been granted for the youngest child E.
[17] On March 9, 2006 the S.’s applied to the court to have the adoption set aside. This application was dated February 28, 2006. At that hearing before Justice Mona Lynch the issue of the court’s jurisdiction to entertain an application to set aside the adoption was discussed and it was agreed that counsel for the applicants would appear on March 20, 2006 having filed an amended application with respect to the information she sought concerning the adoption of E. for the purpose of making an appeal to the Nova Scotia Court of Appeal of the final order of adoption under s. 83 of the Act.
[18] On March 20, 2006 Mr. Robert Crosby counsel for CAS, Ms. MacDonald for the applicants and Mr. James Leiper (by telephone) on behalf of the Minister of Community Services appeared. I heard the application and ordered that the Minister of Community Services disclose (1) the name of the judge who granted the adoption; (2) the date of the adoption order ; and (3) whether the judge was aware that leave had been granted to the S.’s to make an application to terminate permanent care for all three of their children.
[19] The order was issued on March 30, 2006. Mr. Leiper confirmed by telephone conference with counsel and the court prior to the order being signed that the judge who granted the final adoption order was unaware of Justice LeBlanc’s order granting leave.
[20] This application for termination of permanent care of all three children was adjourned to and heard by me on May 8 - 11, 2006.
[21] CAS continues to take the position that once the notices of proposed adoption for R. and E. were issued, the court was precluded from entertaining an application to terminate care for these two children. Justice LeBlanc however granted leave to apply to terminate care of all three children despite the notices of proposed adoption partially on the ground that the application for leave predated the notices. CAS did not appeal that decision.
[22] The applicants E.S. and M.S. have given evidence at this proceeding. They told the court that they love their children very much and always understood that from the day their children were first taken into care on September 26, 2002 they believed the situation was temporary and that they would continue to have access to them and eventually their return to be a family again.
[23] I accept the S.’s love their children. I also accept their evidence with respect to their ignorance of court proceedings. I accept their evidence that they believed they were misled by their agent Mr. O’Neil and never understood the gravity of their children being taken into care and the nature of the proceedings before the Nova Scotia Court of Appeal.
[24] For this reason I intend to deal with this application on its merits and will comment at the end of this decision on the effect of s. 48(4) on this application.
[25] I will first review the relevant statutory provisions and law in this matter.
Children and Family Services Act:
Termination of permanent care and custody order
48(8) On the hearing of an application to terminate an order for permanent care and custody, the court may
(a) dismiss the application;
(b) adjourn the hearing of the application for a period not to exceed ninety days and refer the child, parent or guardian or other person seeking care and custody of the child for psychiatric, medical or other examination or assessment;
(c) adjourn the hearing of the application for a period not to exceed six months and place the child in the care and custody of a parent or guardian, subject to the supervision of the agency;
(d) adjourn the hearing of the application for a period not to exceed six months and place the child in the care and custody of a person other than a parent or guardian, with the consent of that other person, subject to the supervision of the agency; or
(e) terminate the order for permanent care and custody and order the return of the child to the care and custody of a parent or guardian or other person.
(9) Where the court makes a supervision order pursuant to clause (c) or (d) of subsection (8), subsections (1), (2) and (3) of Section 43 and subsection (1) of Section 46 apply.
(10) Before making an order pursuant to subsection (8), the court shall consider
(a) whether the circumstances have changed since the making of the order for permanent care and custody; and
(b) the child's best interests.
Supervision order
43 (1) Where the court makes a supervision order pursuant to clause (b), (c) or (e) of subsection (1) of Section 42, the court may impose reasonable terms and conditions relating to the child's care and supervision, including
(a) a requirement that the agency supervise the child within the residence of the child;
(b) the place of residence of the child and the person with whom the child must, with the consent of that person, reside;
(c) the frequency of visits at the residence of the child by the agency;
(d) that a parent or guardian or other person shall not reside with or contact or associate in any way with the child;
(e) access to the child by a parent or guardian or other person;
(f) the assessment, treatment or services to be obtained for the child by a parent or guardian or other person having the care and custody of the child;
(g) the assessment, treatment or services to be obtained by a parent or guardian or other person residing with the child; and
(h) any other terms the court considers necessary.
Review of order
46 (1) A party may at any time apply for 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.
[26] Counsel for the CAS properly observe that the court enjoys a measure of flexibility with respect to the disposition of an application to terminate but is however subject to statutory time constraints in that an application to terminate may be adjourned for a maximum of nine months to afford time for medical assessment of child, parent or guardian (three months) or to allow placement of the child with a parent or guardian under the supervision of the agency (maximum of six months) until a final order is rendered.
[27] Further, s. 48(10) provides that the court, must balance the need for continued state intervention with the paramount importance of the child’s best interests. It set out a two-fold test; whether the circumstances have changed since making the permanent care order and the best interests of the child.
[28] The “best interests of the child” are defined in s. 3(2) of the Act.
(2) Where a person is directed pursuant to this Act, except in respect of a proposed adoption, to make an order or determination in the best interests of a child, the person shall consider those of the following circumstances that are relevant:
(a) the importance for the child's development of a positive relationship with a parent or guardian and a secure place as a member of a family;
(b) the child's relationships with relatives;
(c) the importance of continuity in the child's care and the possible effect on the child of the disruption of that continuity;
(d) the bonding that exists between the child and the child's parent or guardian;
(e) the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs;
(f) the child's physical, mental and emotional level of development;
(g) the child's cultural, racial and linguistic heritage;
(h) the religious faith, if any, in which the child is being raised;
(I) the merits of a plan for the child's care proposed by an agency, including a proposal that the child be placed for adoption, compared with the merits of the child remaining with or returning to a parent or guardian;
(j) the child's views and wishes, if they can be reasonably ascertained;
(k) the effect on the child of delay in the disposition of the case;
(l) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent or guardian;
(m) the degree of risk, if any, that justified the finding that the child is in need of protective services;
(n) any other relevant circumstances.
[29] In this application the burden lies with the applicants. They must demonstrate that there has been a significant change in circumstances that would warrant the court granting a termination order. The change must be a substantial and positive change so that when weighed against the children’s best interests, the court is satisfied that sending the children back to their parents would in fact be in the children’s best interests. V.S. v. Nova Scotia Minister of Community Services [1999] N.S.J. No. 435; M.D. v. Children’s Aid Society of Halifax [1993] N.S.J. No. 306 (Fam. Ct.) Affirmed [1994] N.S.J. No. 191 (C.A.).
[30] The court therefore must direct its mind not simply to the positive and substantial change the applicants say has occurred in their own lives, but must also consider how the children have fared since the order was granted in June 2004.
[31] Justice Bateman in S.G. v. Children’s Aid Society of Cape Breton [1996] N.S.J. 180 observed at para. 19:
Under the scheme set out in the Act, a permanent care order is generally granted only after a series of attempts by the agency to support or facilitate the rehabilitation of the parent, and the failure of rehabilitation to occur within a reasonable time frame. Such was the case here. Appropriately, once a permanent care order has been made, in the termination proceeding, there is a shifting of focus, to the best interests of the child, not in the context of the child and a hypothetical care giver, offered as an alternative to the parent, but in the context of the new environment the child has come to know.
[32] In order to make such a determination there must be a bench mark. This is achieved by examining the applicants’ situation at the time the order for permanent care was granted and examining the change that may have occurred since. Is the change significant? Is it real? Will it last?
[33] The court has before it the report of Valerie Rule, MA, a registered psychologist and clinical and forensic assessor. The report dated May 26, 2004 was prepared for the hearing of June 9, 2004 as well as the reports of Bryson and Landry were before the court in June 2004. These reports were relied upon by Justice MacLellan in making the permanent care order. The reports and Justice MacLellan’s findings are a benchmark against which the applicants’ expert evidence may be weighed. Ms. Rule has provided a supplemental report dated April 15, 2006 in response to these experts’ reports tendered by the applicants.
[34] With respect to the children, Justice MacLellan’s decision chronicles the life of a very dysfunctional family in which the children were severely compromised; the two eldest being most affected and the youngest child E. least affected because he was still an infant, only 17 months old when apprehended.
[35] In particular she found that the children lived in deplorable conditions. Mr. Crosby listed the parenting deficiencies found by Justice MacLellan in his brief. They were:
- poor hygiene
- poor nutrition
- lack of supervision
- domestic disputes and the exposure of the children to violent behaviour of the parents
- overall poor parenting
- physical risk to the children because of inappropriate discipline
- Mrs. S.’s explosive temper and emotional health
- negligible attachment to the children by the mother
- Mr. S.’s anger
- impulsivity & reactivity of the parents
- lack of insight, desire or ability to improve by the parents
- undermining by the parents of the foster care arrangements of the child, R.
- inability to control themselves during access or exercise access meaningfully
- all-consuming anger and preoccupation with Children’s Aid
[36] Justice MacLellan also found that despite a variety of interventions to assist the S.’s in developing parenting skills and interventions to help the S.’s have a greater awareness of the effect of their own behaviour upon the children; these had been tried and failed. These services included:
- parent aid, including videotaping and modelling
- access facilitator
- marriage counselling referral
- adult mental health counselling (Mrs. S.)
- anger management (Mr. S.)
- parenting courses
The Applicants:
[37] The applicants have filed affidavits with the court.
[38] M.S. describes the efforts she has made to rehabilitate herself since the June 2004 order. She has attended at Addiction Services Centre through Adult Mental Health Services and has been seeing Dr. Scott Milligan, a psychiatrist on a regular basis, since November 17, 2005, attended marriage counselling with her husband, attended anger management sessions and has taken parenting courses.
[39] Both in her affidavit and vive voce evidence M.S. acknowledges that she came from a very troubled past that contributed to the difficulties she faced as a parent and resulted in the intervention of CAS.
[40] In particular she stated in her affidavit paras. 17, 18, 19, 20, 21, 22:
17. That E.S. and I recognize and take responsibility for the mistakes we made in regard to our children and the Agency. It was not borne out of malicious intent or disregard. I especially didn’t know any better. And because of my mental condition it was hard to get through to me.
18. That to say I am remorseful would be an understatement. I extend my sincerest apologies to everyone who tried to help and to whom I have offended. I especially apologize to my children whom I love dearly.
19. That it was for the children’s benefit and in particular for E. that I contacted the Agency for help as I knew I was overwhelmed.
20. That I feel like a new person. I have had a medical turnaround and an extreme attitudinal changed.
21. I am physically healthy and I am now mentally stable and working towards becoming emotionally and psychologically healthy encompassing the ability to deal with the world as a mature fully functioning adult.
22. That my husband and I want to raise our children and believe we have much to offer them.
[41] M.S. believes she has many skills that she can offer her children if they are returned to her. In evidence she enumerated helping the children with their homework, teaching the boys canoeing and how to camp in the woods, teaching her daughter how to do various hairstyles, figure skating and cheerleading, all derived from her own background in these areas, as well as teaching the boys skating skills for playing hockey and enumerating even further talents.
[42] M.S. believes now that since her diagnosis of bipolar disorder has been treated successfully, she is now able to manage her household, has developed a solid marriage free of the past disruption and violent outbursts that her children had been subjected to and is therefore now ready to assume her parental duties. She testified that she loved her children dearly and just wants them back to start a new family life.
[43] E.S. in his affidavit and viva voce evidence supports his wife’s view that she is now dramatically improved since diagnosis and treatment. He testified that he too has participated in all the programmes recommended to him; including 34 anger management sessions taken with therapist Sr. Gwendolyn O’Neill of Family Services and participation in marriage counselling and parenting programmes.
[44] He testified as to his personal skills which include a love of the outdoors, a knowledge of the woods, silva culture, water safety, a myriad of sports including boating, hockey, baseball, soccer, biking, board games, a love of music and skills such as carpentry and painting. He wants the opportunity to teach his children his skill sets and to parent them again with the continued help of agency involvement, with whom he says he and his wife are now able to fully cooperate. This is in contrast to their earlier dealings with the agency when he testified he was misled by the civilian agent who counselled them both not to be cooperative with CAS.
[45] M.S. said in her testimony that their past angry behaviour and attitude towards CAS was in great part the reason she lost her children.
[46] The S.’s have support for the view that they have made progress in their personal development following these various treatment programmes.
[47] Before dealing with this evidence and the reports of their expert witnesses, I do wish to say that I was impressed with the sincerity of both Mr. and Mrs. S., the commitment they have both made to securing mental health services and the effort they both appear to have made to restore their own marriage over these past two years. I also know how much they love their children.
[48] Dr. Scott Milligan is a psychiatrist at the Cape Breton Regional Hospital. He testified that he first saw M.S. on June 7, 2006. In his report dated February 22, 2005 he summarized his initial diagnosis:
She was seen initially at the prompting of Children’s Aid, encouraging her to get help for her anger management. M.S. described a long history of problems with explosive discharges of her anger, chronic low mood, and difficulty regulating her emotions, as well as a tendency to stay emotionally detached. There is a remote history of drug and alcohol use, particularly in her teenage years, but none recently. M.S. also has had chronic difficulties with her sleep with initial, middle, and terminal insomnia, problems related to her body image, and also problems with her interpersonal relationships. Although it did not come out in my initial assessment of M.S., it later became clear that she had numerous obsessive-compulsive symptoms with worry about harm coming to family members, a need to shower frequently, as well as numerous checking behaviours. Also not apparent on my initial assessment but something that came out later was that her mood symptoms tended to be of a bipolar nature.
[49] Dr. Milligan prescribed the anti depressant Venlafaxine. In October 2004 he notes that she described a cluster of manic symptoms. He then prescribed Divalproex Sodium also known as Epival to which she responded well. Dr. Milligan testified he saw E.S. once, with M.S. and that Mr. S. had confirmed that her angry outbursts had been less frequent and that she appeared to be more stable.
[50] Dr. Milligan’s initial assessment took about 1-1/2 hours. He testified that thereafter he saw her every month for an approximate ½ hour session. He testified that a couple of weeks before her July 27, 2005 appointment Mrs. S. stopped taking her medication telling him “I get sick just looking at the bottle.”
[51] He then prescribed a drug called Seroquel (or otherwise known as the new Lithium). By her self reporting and his contact with family members, her husband, her sister in-law, Dr. Milligan testified that he has concluded that Mrs. S. has responded well to her medications and that while on her meds her interactions are better overall. He testified, if on her medications, she is more stable and therefore has better relationships with individual family members and he assumes therefore she will do better with her children.
[52] Dr. Milligan had not read the 187 page parenting capacity assessment, authored by Valerie Rule. In his report he stated “Unfortunately, the diagnosis alone of bipolar disorder will not be terribly helpful in determining whether or not she is fit to raise her children.” Dr. Milligan had not had the opportunity to see Mrs. S. with her children during his treatment of her, because they were not in her care.
[53] Dr. Milligan testified that his sessions with Mrs. S. were to review how she was getting along and adjust her medicine if required. These were not psychotherapy sessions. He testified that he recommended her to Dawn MacKeigan, a psychiatric social worker for more intensive therapy.
[54] Dawn MacKeigan gave evidence for the applicant M.S. and was generally optimistic about the strides Mrs. S. had made. She testified that things are going well for Mrs. S.; no outbursts, no argumentative behaviour, that she appears motivated, comes to her appointments, is open to being challenged without angry response. Ms. MacKeigan testified that “the person Ms. Rule describes is not the person I have met.”
[55] However, Ms. MacKeigan also testified that she could not comment on M.S.’s capacity to parent. She testified that the loss of her children and particularly the news of E.’s adoption were crisis’ that evolved great sadness and that this hearing itself was a crisis. Once the hearing is over “we might get into doing real work with M.S.” She testified that in depth psychoanalysis is not appropriate at this time.
[56] Her role was to work with M.S. to help her realize what adequacy she does have parenting, assist her with developing coping techniques to handle stressful situations, such as the current absence of her children.
[57] Ms. MacKeigan had reviewed the Bryson and second Rule reports, but had never seen the first Rule parenting assessment, saying these reports were not really necessary in the type of work she was doing with Mrs. S.
[58] Jim Gouthro is a social worker with Family Services who started counselling the S.’s in June 2005. He described his services as relationship counselling and anger management. He spoke well of the S.’s commitment to working with him testifying that they came prepared, were proactive in treatment and involved in very session.
[59] Mr. Gouthro treated M.S. independently in six sessions of anger management. He performed couples counselling with the S.’s for eight sessions. These sessions with Mr. Gouthro took place between the Fall of 2005 and March 2006.
[60] Mr. Gouthro’s interviewing case notes from Family Services testified that Mr. S.’s treatment was of longer duration. He began anger management with Sr. Gwendolyn O’Neill September 24, 2002 and concluded on March 10, 2003 after 35 sessions. Asked why 35 sessions and not the more usual eight sessions to complete treatment, Mr. Gouthro testified that the number of sessions depends on the therapist’s style, on the need and on what the client brings to the session. He testified that he could not comment on Sr. O’Neill’s work, only to say she had retired after illness and he took over the file but had not actually been able to contact E.S. so his file was closed on December 2003. Mr. Gouthro testified that he had not accessed the Valerie Rule parenting capacity assessment.
[61] Marjorie MacDonald is a social worker with Addiction Services. She testified that M.S. still has some issues she needs to work on but that she seems to cope in the current crisis. She testified that all of Mrs. S.’s energy goes into having her children returned; that she is trying hard to be the best she can be and is working in the counselling situation to discover her own strengths. Ms. MacDonald testified that she is very impressed with M.S.’s strength in light of the very difficult background she has, the challenges she faced as a child herself in the care of CAS, and the current difficulties having her own children removed. She testified that M.S. sees CAS “almost like her parents” and feels betrayed by them now, having asked for their help and then had her children permanently removed.
[62] Ms. MacDonald testified that she found M.S. has had low self esteem and reactions of aggression and anger.
[63] She testified that M.S. is beginning to develop self esteem and knows that she has rights and has insight into her past inappropriate use of anger and has now learned better ways to communicate.
[64] Ms. MacDonald testified that she had no way to comment on her ability to parent but did say she sees a strong desire in M.S. to have her children returned and that M.S. had spoken very lovingly of her children.
[65] Ms. MacDonald testified under cross examination that M.S.’s continued therapy would have to focus on the difficulties arising from her past and how that impacts on her life today, saying that therapy could take from two to three years.
THE CHILDREN:
[66] The respondent CAS introduced the evidence of two childcare workers from the CAS who have been involved with D., R. and E.’s case files.
[67] Michelle Popovitch has a B.A. is social work and is a child care worker. She addressed her own report dated April 27, 2006 relating details of a case conference she attended on November 2, 2005 with psychologist Beverly Zinc, who had just completed a diagnosis on R. She notes in her report that R. has
× Attention Hyperactivity Disorder (ADHD), Combined Type.
× Re-active Attention [sic, Attachment] Disorder.
× Strong indication of Fetal Alcohol effect, which will require further assessment by a specialist in this field.
× Significant gaps in knowledge base which require highly elevated needs in terms of her general coping, effective development, and impulse controls.
× The assessment also concluded that R. has severe gaps in visual scanning, pattern recognition, and for social and academic reason will require heightened adult supports in the classroom and on the playgrounds.
Recommendations:
× Elevated education supports.
× Developmental re-assessment.
× Elevated parental support.
× Therapeutic involvement.
× Psychiatric follow-up.
Her evidence was that R.’s foster parents were having a hard time with her.
[68] Ms. Popovitch testified that since December 2005, R. has been on a slow dose of Ritalin prescribed by her pediatrician Dr. Abenheimer to reduce her aggressive behaviour at home and at school. With adjustment upwards in the dosage, there were improvements at school, with further improvements at home in March and April 2006. Although she remains a handful, her behaviour has become more manageable.
[69] Every other weekend R. moves to a second family for respite care to give her foster parents a rest. She goes to the same foster home for these respite breaks.
[70] R. also receives counselling from a psychologist Julie MacDonald.
[71] Other than a brief adoption attempt that was unsuccessful, R. has remained with the same foster family and respite care family.
[72] Robert Burke, a child care worker for CAS testified that he made notes, taken from D.’s file that reflect D.’s behaviour and prognosis for the future. Mr. Burke only became D.’s child care worker in November 8, 2005.
[73] He summarized the file information as follows (Exhibit 6. p. 3):
1. Behaviours
Aggression
Easily distracted, difficulty staying on task
Very active, with hyperactivity
No stranger anxiety, i.e. boundaries around strangers
Lack of impulse control
Problematic sleep, i.e. walking through the night
Does not respond well to change - needs planned, structured routines
2. Diagnosis - Information received from Dr. David Aldridge
Attachment Disorder - over-friendliness, soiling and destructive behaviour
Complex Post Traumatic Stress Disorder - hypervigilence and fear
exhibited, aggression due to misinterpretation of events around him.
Cognitive difficulty
Diagnostic Testing - revealed anxious, inattentive and aggressive
Fetal Alcohol Spectrum Disorder - to be assessed
Present Medication - 36 mgs Concerta and ½ Ritilan daily
He testified that D. now receives the following support services:
Dr. David Aldridge, Child Psychiatrist
Dr. Martin Abenheimer - Pediatrician
Julia [sic] MacDonald - Psychologist at Child & Adolescent Services
Teacher Aide at elementary school - Grade 2
Referral in progress -
Mental Heath - Intensive Community Based Treatment Program - Garth Nathanson
Fetal Alcohol Spectrum Disorder Assessment - Dr. William Vitalie, Halifax
Respite - bi-monthly with alternative foster parents
[74] Dr. Vitalie is a specialist now at the IWK Grace, who recently came to Halifax. He is apparently the only specialist in the province who makes assessments for Fetal Alcohol Syndrome. Both D. and R. await this assessment as their pediatrician believes this diagnosis will be confirmed by Dr. Vitalie.
[75] Mr. Burke’s evidence was that these tests could not have been performed earlier and the assessment for both D. and R. will occur soon, as no specialist with Dr. Vitalie’s expertise was previously available.
[76] Mr. Burke testified that D. is in Grade 2 this year. Early in the year he had difficulty with aggression, social situations, was easily distracted and frustrated with work. He can be oppositional unless clear consequences are in place and made known to him. A teacher’s aide is involved to help with work and behaviour, both in and out of the classroom and to help D. stay on task.
[77] He apparently has a much improved second report for this year which consisted of predominately “goods” which show he has demonstrated the required knowledge and skill to meet outcomes. Teachers report D. is working hard and made good progress and is expected to be promoted to Grade 3 providing he continues his present behaviour and work habits.
[78] As Dr. Vitalie has not made any assessment of the children to date, I place no significance in this speculation of a diagnosis not yet made.
[79] There was no direct evidence relating to the current circumstances of the youngest child E. who is now five years of age and lived with his parents for approximately 17 months before he was taken into care. E. has been in an adoption placement since December 2004. Mr. Crosby represented to the court that he is thriving and secure in his new attachments.
[80] Valerie Rule testified on behalf of CAS. The parenting capacity assessment report dated May 26, 2004 is a document of 178 pages in length; the longest report she has ever prepared in her lengthy career of preparing hundreds of such reports. She testified that in part, it was necessary to provide verbatim excerpts of the interviews the S.’s had with her because the matter was so complex and because there were so many issues. She also observed 17 hours of video tape of the S.’s interacting with their children on the supervised visits they enjoyed until April 27, 2004.
[81] Her report noted five concerns. These included: (1) Mr. and Mrs. S.’s maladaptive personality problems, (2) the relationship between Mr. and Mrs. S., (3) Mr. and Mrs. S.’s anger responses and how this impacts on their parenting roles, (4) the current status of the children impacted by the lack of attachment from Mrs. S. and the lack of consistency in applying effective parenting strategies by both parents, and (5) the prognosis for meaningful change in light of the S.’s inability to work with the agency. The assessment concluded, that based on the evidence at hand, that “Mr. and Ms. S. do not currently have the capacity to offer D., R. and E. even the most basic parenting skills that would be considered “good enough” parenting.”
[82] Ms. Rule commented on the significantly different picture of the S.’s life today, that counsel for the applicants urges the court to accept. Her response to the reports of Dr. Milligan, Ms. Dawn MacKeigan, Mr. Jim Gouthro and Ms. Marjorie MacDonald is contained in her second report dated April 15, 2006 about which she also testified.
[83] It is Valerie Rule’s evidence that she doubts that despite the 35 anger management sessions attended by Mr. S. prior to October 2004; he is able to internalize, maintain and apply these emotion regulation strategies when faced with a difficult situation.
[84] As to the couple’s treatment (eight sessions) delivered by Mr. Gouthro in 2005, she doubted that would be enough, given the severity of their relationship difficulties. She noted Mr. Gouthro had placed a very positive spin on their proactive approach to treatment and commitment to their relationship, without actually offering any opinion on the prognosis for future improvement.
[85] With respect to Ms. S.’s attendance at six anger management sessions, Ms. Rule made similar observations and expressed doubt in terms of emotion regulation. She notes:
It is important to note that a six week anger management program in all likelihood, would not address the chronicity of Ms. S.’s emotional regulation problems. Rather than a structured anger management program, Ms. S. would have been helped more with intensive psychotherapy by a seasoned mental health professional who could address her early childhood difficulties and connect them to her compromised adult psychological functioning. It would have been beneficial if the deferred diagnosis of Post Traumatic Stress Disorder and Cluster B Personality Traits from the Parental Capacity Assessment were followed up and either ruled out or confirmed in order that a comprehensive treatment plan be implemented, rather than the “duplication of services” as indicated by Ms. MaKeigna’s [sic] notes.
Indeed, Ms. Rule doubted the efficiency of M.S. seeing multiple therapists and warned of its danger.
[86] Respecting Dr. Milligan’s diagnosis of bipolar disorder, Ms. Rule had some doubts. She indicated:
He diagnosed Bipolar Disorder with co morbid Obsessive-Compulsive Disorder and treated her with Divalproex Sodium to which Ms. S. reported was helpful. He later changed the medication and she reported that this was also helpful. At the time the Parental Capacity Assessment was conducted, there was no symptomotology self reported by Ms. S. or observed by the assessor that was consistent with these diagnoses. The assessor deferred a diagnosis on Axis I (DSM-IV) and queried Post Traumatic Stress Disorder as well as Cluster B personality traits. Dr. Milligan documented in his letter of February 22nd 2005, “Objectively, I have seen little in the way of either depression or mania in M.S.”
[87] In fact Dr. Milligan acknowledged in his own testimony that his findings were based on Mrs. S.’s self reported behaviour. His observations of her were limited to 30-minute sessions.
[88] Valerie Rule emphasized that Mrs. S.’s gains achieved by taking prescribed medications are only real so long as she continues the meds. She expressed concern over Dr. Milligan’s report that one blood sample drawn did not show any sign of the presence of his prescribed meds and she was further concerned about her self reported “two week hiatus” in taking prescribed meds in July 2005, after which Dr. Milligan placed her on newly prescribed Seroquel.
[89] With respect to the S.’s ability to achieve real gains in parenting skills through attendance at programmes offered from Family Place, she commented:
It is likely that due to Mrs. S.’s lack of ability to apply what she has learned through participation in the nine programs prior to the Parental Capacity Assessment, that she may have similar difficulty in applying strategies today. These are helpful programs, however are geared more to parents who are functioning in a healthy manner and are utilized to enhance appropriate parenting practices. Individuals with severe difficulties applying healthy and appropriate parenting require more in depth, one on one teaching; with a modelling component. This is similar to working with a Family Skills Worker and matching the intervention to the manner in which the parent’s learn, at the pace they can cope with, with goals to reach and measures to determine whether they have reached the goals. In addition, there should be a mechanism to determine whether the parents can retain what they have learned over time through the process of internalization, and can demonstrate the ability to generalize this learning to their day to day lives. There is no indication that Mr. and Ms. S. have accomplished this.
[90] Notwithstanding the myriad of programmes the S.’s have participated in the past 24 months, it was Ms. Rule’s opinion that:
... there is no documented evidence to suggest that the improvements service providers have observed have been maintained over time. In addition; and perhaps more importantly, there is no evidence that Ms. and Mr. S. have the ability to generalize what they have learned to day to day life with children.
Ms. Rule’s evidence confirmed her conclusion stated in her report:
Given the poor to guarded prognosis as indicated in the Parental Capacity Assessment it is unlikely that this prognosis would be improved to any significant extent based on the documented services that the S.’s have participated in.
The S. children have been severely compromised. This is well documented in the Parental Capacity Assessment of May 24th 2004. They require more than “good enough” parenting. In order for them to grow up to be physically and psychologically well adjusted children, they require stability, predictability, and emotional nurturing. In addition, they require highly skilled care givers.
It is my opinion, based on the information forwarded to me and compared to the concerns described in the Parental Capacity Assessment, that the S.’s have not made meaningful change to the degree that would change my initial opinion that they do not have the capacity to offer even good enough parenting to the children.
[91] I was particularly concerned about that portion of her evidence that focussed on M.S.’s own attachment disorder, suffered as the result of the poor parenting she herself had received. This disorder has, I accept, resulted in harm to her own children, particularly the two eldest as diagnosed by Dr. Abenheimer as a reactive attachment disorder, noted in Mr. Burke’s report.
[92] Dr. Abenheimer did not present evidence in court nor did Ms. Bev Zinck a child psychologist who also diagnosed the two eldest children.
[93] These diagnosis were referred to in the reports of Ms. Popovitch and Mr. Burke, child care workers.
[94] I accept their reports, that include these diagnosis, as the basis upon which they prepared a plan of treatment and services, that were provided to the children in response to these diagnosis.
[95] This evidence is admissible for this purpose only. Family and Children’s Services of Yarmouth Co. and T.S. & W.S. [2003] N.S.R. (2d) Uned. 68 (FC) Comeau C.J., July 11, 2003 wherein he adopts L. v. Lavelee (1999), 55 C.C.C. (3d) 97, and R. v. Abbey [1982] 2 S.C.R. 24 - see para. [14].
[96] Ms. Rule gave testimony of a general nature respecting this disorder. She characterized it as a trauma bond; an attachment based on fear that becomes pathological. When applied to this family she likened placing the children back in the S.’s home as being “akin to putting a wife back with an abusive spouse.” She testified it is harmful to put the children back in the home where the disorder was created.
[97] Counsel for the applicants in her cross examination of Ms. Rule suggested her theory that the children’s current condition, as articulated by the CAS child care workers, was the result of the trauma they suffered in their foster homes and as a result of being ripped away from their own family.
[98] Ms. Rule categorically rejected this view testifying that, the acting out the children, D. and R. have exhibited, while in foster care was because they could release all of their pent up anxieties once they were in the safe environment of foster care.
[99] She testified that the children’s needs were not being consistently met by the S.’s. She saw, in the 17 hours of tapes she viewed, a consistent pattern of detachment and lack of emotional connection by M.S. toward her children.
[100] If left in a situation where there is violence or neglect, children develop high anxiety. She described their potential reactions as fear or flight. Unsure if their needs will be met they are never then sure if they can go to their mom or dad.
[101] When the children R. and D. were in a safe environment where their needs were being met, they could then “let it all hangout.”
[102] Ms. Rule’s observations of these children, both in their home and subsequently in 17 hours of tape, stand alone from diagnosis additionally made by other specialists in child assessment.
[103] I am convinced of the S.’s sincerity in making this application; their firm belief that they are best able to care for their children and their willingness to accept additional help. However, both the S.’s function under certain continuing disabilities and lack a complete and meaningful awareness of the difficulties they faced as parents and have simplified, in my view, the solutions that underpin any plan for the return of their children. It is true they have in the last 18 months been more cooperative and have availed themselves of any and all resources available, to better their situation as a married couple and potentially as parents.
[104] However, more is required than the fulfilment of programmes and a checklist of skills one has to offer the children.
[105] Mrs. S. does have some insights into self. As she testified she “doesn’t want to be an angry person any more.” She always use to be “upset, cursing and hollering.” She says she has not had an angry outburst in two years and has rekindled her relationship with her husband.
[106] She has told the court “everyday is pretty much a learning experience for me.” She has made some very significant gains. Her New Horizons Work Activity Programme will soon complete. She is working on her GED; her life is more stable. She asks the court to consider that instead of a second foster family she be considered and says “why not me?” Her counselling has obviously been helpful, as has her medication. As she says “first time in 20 years I felt like me again.”
CONCLUSION:
[107] Although Ms. S. has made strides in her own level of awareness of the difficulties she faces the journey has just begun, as is apparent from her own experts’ reports, those of Marjorie MacDonald and Dawn MacKeigan.
[108] In part however, I believe she remains conflicted about who bears responsibility for the errors made in children’s lives. She still deflects blame on CAS. Her anger simmers just below the surface. She testified, “My anger gets me in trouble.” She acknowledges bad parenting skills and says “it’s possible it did put my kids in jeopardy ... but I don’t believe it did ...but looking back ... maybe some harm. Not 100% sure ... so I took the courses.”
[109] In my view, she remains equivocal about these issues and through further therapy may develop a better awareness of the effect her own troubled childhood has had on her three children.
[110] Mr. S. appears to me to be somewhat robotic in describing of the skills he has learned and the techniques to deal with the stress in his relationship with his wife; for example, passing the remote back and forth to learn to listen to one another and in reciting other techniques taught to him by Mr. Gouthro.
[111] But I sense it is unlikely he really understands the nature of the underlying reasons for the marital troubles he has had.
[112] I find, in his evidence he has a tendency to abdicate responsibility and recited all of M.S.’s failings and suggested, now that M.S.’s disorder has been diagnosed and meds prescribed, all will be better.
[113] He was in fact out of the home on September 26, 2002 when the children were apprehended because his relationship with M.S. had broken down so badly she had reported to CAS that he struck D. and that the level of conflict needed to be reduced by his departure.
[114] This is not just about M.S.’s mental illness.
[115] E.S. required 35 anger management sessions over a two year period. He contributed to the family’s difficulties as well. I was not assured by his testimony that he has developed an awareness of this fact.
[116] Indeed, I concluded from their testimony that M.S. has actually made greater gains than he and she realizes that her journey has just begun.
[117] In dealing with the Rule Report , Mr. S. levelled blame on Valerie Rule for deceiving them. They opened up to her; told her frankly of their problems. Mr. S. felt lied to, because it was revealed at the June 2004 hearing, she had once worked for CAS many years ago in the Province of Ontario.
[118] Mr. S. therefore discounts the value of her report, notwithstanding that he does not deny the truth of the material contained therein.
[119] Mr. S. viewed the video tape, that of their last visit with the children at the CAS offices before they were denied further access on April 29, 2004 and sees an “affectionate loving experience of three children having a good time with their parents.” He acknowledges it was a “little chaotic” and says there may have been “things we could have done to help the children cooperate a little more ... but M. was undiagnosed and that was the underlying problem.”
[120] His testimony concerning this taped session, which we viewed again at this hearing, shows little insight into the problems that were so evident to the experts who viewed the tape.
[121] In my viewing of the tape, I concluded that Ms. Rule’s observations were well founded. There is more happening in the dynamic of this family, as seen on the tape, than that of slight chaos in a loving family atmosphere. Again I note, Ms. Rule had the benefit of 17 hours of observation.
[122] I agree with Ms. Rule that were these children returned to the family, this would create significant pressure, if not crisis, for the S.’s to manage. Even with skills recently learned, I do not have confidence they could parent these children adequately. Again I agree with Ms. Rule on this point.
[123] Had the applicants’ witnesses been able to comment in the light of the Parenting Capacity Assessment, completed in May 2005, their evidence might have been more helpful to me.
[124] However, the best interests of the children are the paramount consideration in this case.
[125] I have not been convinced that the S.’s, individually or as a couple, have met the onus placed upon them to show the court there is a change in their circumstances, sufficient to allow me to consider returning the children to their care pursuant to the provisions of s. 48(8) of the Act. I must therefore dismiss this application. They have made some progress and I acknowledge that and commend them. I hope that they will continue to progress in their marital relationship and avail themselves of further therapeutic services.
[126] But as I have said, their journey has just begun and has not progressed to a stage of personal growth or rehabilitation to allow me to return their children to them.
[127] With respect to Mr. Crosby’s position that s. 48(4) precludes the court from having jurisdiction to hear an application to terminate care, I am substantially in agreement, but for the unusual circumstance of the earlier application for leave Justice LeBlanc, referred to in his decision. In any event that point is now made moot by my findings on the merits of this application.
Justice M. Heather Robertson