Supreme Court of Nova Scotia
(FAMILY DIVISION)
Citation: Nova Scotia (Community Services) v. R.M., 2019 NSSC 8
Date: 2019-01-14
Docket: 105093
Registry: Sydney, NS
Between:
Minister of Community Services
Applicant
v.
R.M. and C.O.
Respondents
Library Heading
Restriction on Publication:
Section 94(1) of the Children and Family Services Act applies to this decision and provides as follows:
94(1) No person shall publish or make public information that has the effects of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or a relative of the child.
Information that would identify the children, parents or foster parents in this proceeding has ben anonymized so that this decision can be published.
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Judge: |
The Honourable Justice Kenneth C. Haley |
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Heard: |
October 4, 5, 22, 23 and 24, 2018 in Sydney, Nova Scotia |
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Written Release: |
January 14, 2019 |
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Subject: |
Permanent Care and Custody Hearing |
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Summary: |
- The Minister of Community Services seeks permanent care of the Respondents’ child S., pursuant to s. 42(1)(f) of the Children and Family Services Act. - The Respondents have a long history of domestic violence and substance abuse. - R.M. had made great strides to improve her lifestyle while having no contact with C.O. - R.M. had the supervised care of S. since March 2018. - Family and Provincial Court Orders provided that C.O. was to have no contact with R.M. - R.M. was well aware of the no contact provisions, and aware of the consequences in the event of breach. - In August 2018 R.M. allowed C.O. contact with both herself and the child S. - The Minister took the child S. back into care as a result. - C.O. supported return of S. to R.M. - R.M. had clearly not gained proper insight into the protection concerns of the Minister. - R.M. could not be entrusted with the future care of S. as she demonstrated she could not stay aware from C.O. - The legislative times had been exhausted. - It was not in the best interests of S. to be returned to R.M. The Court ordered the child be placed in the permanent care of the Minister. |
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Issue: |
Permanent Care and Custody vs. Dismissal |
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Result: |
Permanent Care and Custody ordered in favour of the Minister of Community Services with no provision for access |
THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.
SUPREME COURT OF Nova Scotia
FAMILY DIVISION
Citation: Nova Scotia (Community Services) v. R.M., 2019 NSSC 8
Date: 2019-01-14
Docket: 105093
Registry: Sydney, NS
Minister of Community Services
Applicant
v.
R.M. and C.O.
Respondents
RESTRICTION ON PUBLICATION
Section 94(1) of the Children and Family Services Act applies to this decision and provides as follows:
94(1) No personal shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or a relative of the child.
Information that would identify the children, parents or foster parents in this proceeding has been anonymized so that this decision can be published.
|
Judge: |
The Honourable Justice Kenneth C. Haley |
|
Heard: |
October 4, 5, 22, 23 and 24, 2018, in Sydney, Nova Scotia |
|
Written Release: |
January 14, 2019 |
|
Counsel: |
Tara MacSween for the Applicant Steven Jamael for the Respondent, R.M. Jill Perry for the Respondent, C.O. |
By the Court:
[1] This is the application of the Minister of Community Services, hereinafter called “the Minister”, seeking an Order pursuant to s. 42(1)(f) of the Children and Family Services Act, that the child, S. born April 13, 2017, be placed in the permanent care and custody of the Minister.
[2] The Court heard evidence on October 4, 5, 22, 23, and 24, 2018 with written Submissions submitted by the Minister on November 8, 2018, and oral submissions by Respondents’ counsel on November 13, 2018.
[3] The following witnesses testified on behalf of the Applicant:
• G.R. (mother of the Respondent, R.M.)
• Constable Dan Currie of the Cape Breton Regional Police Service.
• Constable Matt McNeil of the Cape Breton Regional Police Service.
• Patricia Bates-MacDonald (Social Worker).
• Ashley Cote (Protection Worker).
• Noelle Holloway-MacDonald (Social Worker).
• Amy Donovan (Protection Worker).
• Ann Delynn MacDougall (Clinical Therapist).
• Detective Constable Allison Henneberry of the Halifax Regional Police Service.
• Sgt. Mike Somerton of Cape Breton Regional Police Service.
• Jennifer MacNeil (Child and Care Worker).
• Rendell Witchell (Mental Health Clinic)
• Dr. Sandra Scherbarth (Family doctor – obstetrics).
• Gerry Lynn MacDougall (Rehab Nurse).
[4] The following Exhibits were received into evidence by the Court, namely:
• Exhibit 1 – Letter from Patricia Bates-MacDonald.
• Exhibit 2 – Book of Pleadings.
• Exhibit 3 – Record of Convictions.
• Exhibit 4 – Orders.
• Exhibit 5 – Addiction Services Record.
[5] The following witnesses testified on behalf of the Respondents:
• Darlene Nymark (Addictions C.B. Regional Hospital).
• David Arsenault (Probation Officer)
• F.O. (father of the Respondent, C.O.).
• Respondent (R.M.).
HISTORICAL BACKGROUND
[6] This proceeding began by way of Notice of Child Protection Application dated April 13, 2017.
[7] At a Protection Hearing held on July 13, 2017, the child S. was found to be a child in need of protective services, pursuant to s. 22(2)(b) of the Children and Family Services Act.
[8] Together the Respondents have an older child, A. born August 30, 2015, who was placed in the Minister’s permanent care and custody on December 22, 2016 with the consent of the Respondents.
[9] The Respondent, R.M. also has an 11 year old son, X., who is in the custody of his maternal grandmother, G.R.
[10] The child S. was ultimately returned to the supervised care of the Respondent, R.M. on March 20, 2018 and confirmed on June 13, 2018.
[11] The Supervision Orders granted in this proceeding included the condition that R.M. not allow C.O. to “reside with, contact, or associate in any way with the child S”.
[12] Further R.M. was required to “immediately report to a representative of the Minister any attempt by C.O. to reside with, contact or associate in any way with the child”.
[13] At no point during this proceeding did the Minister deem it appropriate for C.O. to have supervised access with the child S.
[14] On August 30, 2018, the child S. was again taken into the Minister’s care, after R.M. and the child were found at C.O.’s home.
[15] On September 5, 2018, the Minister filed an Agency Plan for the child’s care outlining it’s plan to seek permanent care and custody of the child S.
[16] The Respondent R.M. opposes the Minister’s Plan, and proposes the child be returned to her care.
[17] The Respondent C.O. did not put forth a plan of care for the child S, and supports R.M.’s plan to have the child returned to her care.
EVIDENCE
[18] The Minister’s Amended Plan of Care dated September 5, 2018 (Exhibit #2 at Tab 7) outlines the Minister’s concerns at paragraph 6(a) as follows:
The objective of the Agency’s intervention was to provide services to remedy/alleviate the conditions which placed the child, S., in need of protective services. While the plan was for R.M. to have full time care and control of the child, as the child was returned to her care under a Supervision Order in March 2018.
R.M. initially acknowledged the risk of being in a relationship with an abusive partner, R.M. completed all the requested services of her. She seemed to have gained insight into her past and the risk concerns. However, the Agency has serious concerns with C.M.’s decision making skills. On August 30, 2018 the Agency found C.M. and the child S. at C.O.’s apartment. R.M. reunited with C.O. stating she had no other supports and no one knows what it is like to be in an abusive relationship.
The Agency has grave concerns as to her own safety given the severity of abuse that she has been subjected to. R.M. had been untruthful about her contact with C.O., most likely due to the abuse and threats he had made towards her. R.M. had been a victim of longstanding physical and mental abuse, which impacts on her decision making skills and ability to protect her child from harm.
At this time, no further services are identified and which the Agency could provide or facilitate which would remedy the parenting deficits which place the subject child at substantial risk of harm. R.M. has placed her child at risk of harm, despite having completed the services that were implemented. It appears that services to alleviate the risk to the child have failed. The legislative deadline in this proceeding is October 11, 2018.
[19] G.R. the mother of R.M., had a confrontational relationship with her daughter over the years. The evidence suggest G.R. still loves her daughter and would do whatever she could to support her daughter in good times and in bad.
[20] G.R. had great concerns about her daughter’s relationship with Respondent C.O. R.M. had told her mother C.O. was abusive toward her, and G.R. witnessed bruises on R.M. which she believed were caused by C.O.
[21] R.M. admitted to her mother that she did not tell C.O. about her pregnancy with A. because she was afraid C.O. would get violent if he found out.
[22] While in the hospital giving birth to A., R.M. admitted to G.R. that she was afraid of C.O. who frequently abused her, and was also selling drugs.
[23] G.R. testified:
She (R.M.) asked the nurses not to allow C.O. to visit her at the hospital.
[24] Once released from the hospital R.M. did not follow her safety plan, and returned to live with C.O.
[25] G.R. argued with R.M. to leave C.O., but realized…”it wasn’t going to happen”.
[26] The daughter A. was ultimately placed in permanent care. R.M. was angry with everyone for that happening, but G.R. testified:
She (R.M.) didn’t realize that C.O. was the problem. She wouldn’t accept that.
[27] Subsequently R.M. became pregnant with S. R.M. told G.R. that she and C.O. planned to raise this baby. G.R. was perplexed and confused because child A. was recently taken from R.M.
[28] When R.M. was giving birth to S., G.R. visited R.M. at the hospital. G.R. saw R.M.’s injured eye. R.M. acknowledged that C.O. had assaulted her which resulted in R.M. now having an artificial eye.
[29] G.R. testified that she discussed with R.M. about getting away from C.O. and going to the police. G.R. testified that R.M. agreed. G.R. testified:
R.M. was beaten down…nervous/twitching.
[30] Once released from the hospital R.M. started to improve. G.R. testified:
The old R.M. was coming back.
[31] The child S. was returned to R.M. on March 20, 2018. G.R. testified:
She (R.M.) was trying so hard to be a good mom.
[32] On April 30, 2018 G.R. made a referral to the Minister. She believed that R.M. had spoken to C.O. on the phone in breach of the Court condition.
I knew his voice very well. His voice was booming over the phone.
That cancer was back in her life.
[33] When confronted with her suspicion R.M. denied that she was having contact with C.O., that it was a call from the church.
[34] G.R. repeatedly reminded R.M. about the “no contact” provision in the Court Order, and that S. would be taken back into care.
[35] G.R. feared that R.M. was maintaining contact with C.O. G.R. testified:
R.M. changed…she kept more to herself. I could see we were losing her.
[36] Subsequently G.R. had little success in contact R.M.. She testified:
I bombarded her phone.
Call me.
Where are you?
I will call the Minister or the police.
[37] And then the child S. was taken into care. G.R. went to R.M.’s apartment where she found a note in the door.
I have no family.
You are all dead to me.
[38] G.R. testified:
As a mother and grandmother I wouldn’t wish this on anybody.
To watch your daughter being destroyed.
She knows we love her.
She knows we would do anything for her.
She is intelligent and bright when she is allowed to be who she is.
[39] G.R. testified that R.M. needed counselling and support, but “it’s hard to ask for that when you’re in the throws of chaos”.
[40] G.R. testified:
R.M. needs long term counselling.
A lot of checks and balances.
If that was done I think she’d be ok.
[41] Police evidence confirmed the violent and abusive nature of the relationship between R.M. and C.O. Most often R.M. did not cooperate with police in providing information that would result in criminal charges. The evidence nonetheless establishes that the police had repeated domestic calls regarding R.M. and C.O. and others. Exhibits #3 and #4 establish that C.O. has the following criminal convictions:
• 21 July 2008 – uttering threats to cause death. Conditional sentence and probation, firearm prohibition.
• 18 February 2018 – causing a disturbance. Fined $350.00 plus court costs.
• 13 October 2017 – assault. Sixty day imprisonment and probation.
• 4 June 2018 – break and enter with intent. Ninety days imprisonment and probation.
• 26 August 2016 – Fail to comply with a Recognizance or Undertaking. Thirty days imprisonment.
• 13 October 2017 – damage to property. Sixty days imprisonment and probation.
• 13 October 2017 – breach of undertaking. Sixty days custody and probation.
• 13 October 2017 – death threats. Sixty days custody and probation.
• 13 October 2017 – damage to property. Sixty days custody and probation.
• 13 October 2017 – assault. Sixty days custody and probation.
[42] The Minister’s evidence painted a picture of a woman (R.M.) who was very fearful of C.O., but had difficulty in ending the relationship.
[43] R.M. had told service providers that C.O. threatened to kill her if she left him. R.M. had a safety plan in place, but was unable to utilize except when C.O. was in jail.
[44] The Minister’s evidence confirmed that R.M. was “fearful of C.O.”, and sustained serious injuries at the hand of C.O.; which went either unreported or R.M. was untruthful about the circumstances of the injuries.
[45] Patricia Bates-MacDonald was questioned by the Court as follows:
Q: And that he threatened to kill her if she left him and she was concealing a pregnancy from him?
A: Yes.
Q: You’ve been a social worker for a long time, what does that suggest to you about their relationship?
A: It’s dangerous.
[46] While C.O. was incarcerated R.M. was able to focus on S., complete courses, and eventually have S. returned to her supervised care. R.M. was “doing really well”. The Minister did not support access for C.O., and R.M. was well aware of the same.
[47] R.M. was following the safety plan and had confirmed “she wanted no contacted with C.O.”. Amy Donovan testified:
She (R.M.) knew C.O. was to have no contact with the baby.
She (R.M.) knew the consequences if she breached this condition.
[48] The Minister investigated a referral on July 5, 2018 alleging R.M. had contact with C.O. R.M. denied any contact, and she was again reminded the baby would be taken back into care if established she had contact with C.O.
[49] Amy Donovan was very pleased with R.M.’s progress. She testified:
I believed she had gained the insight.
[50] On August 30, 2018 Amy Donovan went to C.O.’s apartment. She testified:
I had a gut feeling because of a call from R.M.’s mother
I hoped I was wrong.
[51] R.M. was found at C.O.’s apartment with the baby and the baby’s belongings. The baby S. was taken into care.
[52] Amy Donovan testified:
There was no other decision that could be made.
R.M. returned to C.O. and put her child at risk.
[53] R.M. told Amy Donovan that she had “messed up”, and that she had no family and no supports. Amy Donovan testified:
We thought she (R.M.) had changed.
Within months she was back with C.O.
[54] On cross-examination Amy Donovan was asked:
Q. Do you believe R.M. can effectively parent if free of C.O.?
A. I did…but I don’t believe it anymore.
[55] In response the Respondent, R.M., told the Court:
I’m more stable now.
I’m aware of who I am.
I admit I made a mistake.
I hope the Court will allow me to be a mother.
She’s (S). my last baby.
[56] In responding as to why she breached the Court Order, R.M. testified:
I knew I had to follow the court order.
I knew I had to avoid C.O.
[57] R.M. explained in speaking with C.O.’s father she was of the belief that C.O. was doing well on the Suboxone Program. R.M. saw C.O. at Tim Horton’s and “froze in the moment”.
[58] C.O. had tears in his eyes and said he would like to see the baby, and R.M. agreed. She testified:
I had a weak moment
It was poor judgment
I regret the decision everyday
I know I made a poor choice
I knew it was wrong but I thought it would be okay for a couple of hours.
[59] R.M. testified she would not have facilitated the visit with C.O. if she did not believe he was doing better.
[60] In relation to her relationship with C.O., R.M. testified:
I was happy without C.O. in my life
I was happy
I had control of my life
C.O. was a hindrance in my life
I want nothing to do with C.O. in the future
I let a lot of people down, including Amy Donovan….she was always there for me.
[61] Testifying about her decision to allow C.O. to see S., R.M. stated:
Q. What did you foresee happening?
A. I honestly wasn’t thinking…I probably caused S. harm but it was not my intention.
[62] R.M. acknowledged that C.O. must show significant change before S. can see him again. R.M. would consult the Minister if this situation ever arose again. R.M. testified she no longer feels she has to lie to protect C.O.
MINISTER’S SUBMISSIONS
(a) General
[63] The Minister submits the following:
• That the standard of proof to be applied in this proceeding is on a balance of probabilities.
• That the Act defines substantial risk to mean a real chance of danger that is apparent on the evidence.
• That it is not the court’s function to retry the original protection hearing; but rather the court must determine whether the child continues to be in need of protective services.
• That in reaching a decision regarding the future care of the child, the court must be guided by the child’s best interests.
• That this review hearing was commenced before the expiration of the statutory limit.
• That as the maximum time limit is approached, the available time to place a child with family under a Supervision Order diminishes.
• That when a proceeding is at the maximum time limit, as the case at bar, the court is no longer required to consider whether placement with family is possible.
• That there is an onus on a potential family placement to come forward and put before the court a reasonable plan of care for the child.
• That no family member has come forward as a placement option for S.
• That the maximum time limit in this matter expired on October 11, 2018.
• That if the court finds that the child remains in need of protective services, it must make an Order for Permanent Care and Custody.
• That the courts in Nova Scotia have established that evidence of past parenting is a relevant consideration on the probability of an event reoccurring.
• That the court has no authority to grant access under a Permanent Care Order.
(b) Risk presented by C. O.
• That C.O. has a lengthy history of substance abuse, domestic violence, and criminal activity, including violent assaultive behavior.
• That C.O. has a history of breaching court orders.
• That C.O. violently assaulted R.M. days before giving birth to S., the result of which caused R.M. to lose her eye.
• That R.M. lied about this encounter and thus C.O. was never charged.
• That although C.O. has not been convicted of any assaults on R.M., the court has ample evidence to establish that he was violent toward R.M. (Reference G.R.; Dr. Sander Scherbarth; Patricia Bates-MacDonald; Ashley Cote; Noelle Holloway-MacDonald).
• That C.O. was emotionally, verbally and physically abusive toward R.M.
• That C.O. did not testify in this proceeding, and hence the evidence regarding C.O.’s assaultive behaviour is uncontradicted.
• That C.O. remains a risk to his child S.
• That despite having completed Second Chance Program, C.O. subsequently engaged in violent behaviour, and this service has failed to alleviate the risk.
• That throughout this proceeding C.O. has failed to complete identified remedial services, and has failed to maintain contact with the assigned case worker and probation officer.
• That C.O.’s substance abuse problem remains unaddressed to the Minister’s satisfaction.
• That C.O. has reportedly been doing well on the suboxone program since May 2018. He did have an unconfirmed positive test for cocaine on August 23, 2018.
• That six months of involvement in such a program is not sufficient to reduce the risk to the child, given his lengthy history of substance abuse.
• That despite C.O.’s involvement in the opioid replacement therapy program, C.O. is still not availing himself of supportive addiction counselling.
(c) Risk Presented by R.M.
• That the evidence establishes that R.M. stayed in a very violent relationship with C.O. for years.
• That R.M. either could not or would not leave the relationship.
• That R.M. still has not fully extracted herself from the relationship, and thus she cannot adequately protect her child from C.O.
• That although R.M. now acknowledges the abuse that was present in her relationship with C.O., she has had a history of recanting/or lying when it suits her purpose.
• That R.M. testified she made a mistake, “weak moment” when she allowed C.O. to have contact with S.
R.M. would like the court to believe the following:
That she unexpectedly ran into C.O. at Tim Horton’s on August 27, 2018, and that she would not simply leave, because she was caught off guard, and there were too many people around.
That C.O. convinced her to bring S. to his home early the following morning.
That on August 28, 2018 R.M. packed up S. and her belongings and walked to C.O.’s apartment early in the morning, and stayed only for a few hours, until he went to work at 10:00 a.m.
That on August 30, 2018 R.M. once again packed up S. and her belongings and walked to C.O.’s apartment early in the morning; however, this time, she acknowledges that she and S. were still at the home after C.O. left for work because S. was asleep.
• That the Court can infer that R.M. and S. were spending the night at C.O.’s home, namely August 28, 29, and 30, 2018.
• That R.M.’s evidence in this regard is not credible and should be rejected by the court.
• That the evidence supports an inference that R.M. was having contact with C.O. well before August 28, 2018 (Reference G.R.’s testimony).
• That in a previous proceeding involving child A., R.M. continued in her relationship with C.O. and continued to deny there was any violence in her relationship.
• Child A. was eventually placed in permanent care with the consent of the Respondents.
• The Minister concedes that C.M. completed the requested services during this proceeding, and had appeared to make significant progress.
• That it appeared that R.M. was not having contact with C.O. such that the Minister was planning to terminate this proceeding in September 2018.
• That the Minister could not follow through with that plan once R.M. and S. were found at C.O.’s home.
• That despite R.M.’s completion of remedial services identified to reduce the risk to the child, R.M.’s contact with C.O. is a clear indication that those services have failed.
• That R.M. was repeatedly advised of the consequences of having any contact with C.O.
• That R.M. fully understood the potential consequences of her actions.
• That R.M.’s conduct demonstrates total lack of insight into the risk of domestic violence.
• That it is in the best interests of S. to be placed in the permanent care and custody of the Minister.
• That there is no time left on the statutory clock and should the court conclude the child S. remains in need of protective services, it has no alternative but to order permanent care with no access.
• R.M.’s assurances that she will have no contact with C.O. are simply not credible.
• It is not safe to return the child to R.M.’s care.
• The Minister plans to place S. for adoption.
SUBMISSIONS – R.M.
[64] The Respondent, R.M. submits the following:
• That the parties were in a longstanding relationship with a history of domestic violence, substance abuse, and control.
• That R.M. was trapped in the cycle of domestic violence.
• That on March 20, 2018, S. was returned to the care and custody of R.M. under the supervision of the Minister.
• A condition of this return was that R.M. was to have no contact with the Respondent, C.O.
• That R.M. had created a clean, safe, and well organized environment for S.
• That the Minister had not identified any issues with R.M.’s parenting ability.
• That R.M. has a strong bond with S.
• That R. M. plans to move to Antigonish, Nova Scotia, to stay away from C.O. with the support of family.
• That C.M. has clearly transformed her life, save and except the misstep of having contact with C.O. in August 2018.
• That R.M. completed all courses and classes recommended by the Minister.
• That R.M. finally did admit to the circumstances of domestic violence where she lost her eye due to the violent actions of C.O.
• That R.M. is done with C.O. and has no intent to get back with him.
• That R.M. had a weak moment in late August 2018, and she understands the potential consequences of that mistake.
• That R.M. acknowledges she made a terrible mistake when she facilitated access with C.O.
• That R.M. is asking the court to give her a second chance, and recognize all the progress she had made prior to August 2018.
• That S. is no longer in need of protective services, and can be safely returned to her mother.
RESPONDENT’S SUBMISSIONS – C.O.
[65] The Respondent, C.O. submits the following:
• That C.O. supports the plan submitted by R.M.
• That the conduct and actions of C.O. cannot be defended.
• That C.O. exhibited extremely disastrous judgment when, in August 2018, he approached R.M. and S. at Tim Horton’s and invited them to his home.
• This approach was in violation of both C.O.’s probation order and order of this court.
• That R.M. should not be punished for the actions of C.O.
• That it is acknowledged that it would be foolish to attempt to argue that the court should not be concerned by the facts which have been established by the evidence.
• Nonetheless, it is submitted that S. is no longer in need of protective services as defined by s. 22(2)(b) of the Children and Family Services Act.
• That the substantial risk of harm to S. by her parents has been addressed and eliminated.
• That R.M. successfully gained the return of S. to her care in March 2018.
• That the evidence suggests that S. was doing well in her mother’s supervised care.
• That R.M. provided a suitable home, provided for S. both physically and emotionally; had established a very clear bond and loving relationship.
• That it would be wrong for the Court to assume that a breach of the court order automatically or necessarily creates a real chance of danger that is apparent on the evidence.
• That regardless of the contact with C.O., there was no evidence of actual harm or imminent harm to S. associated with the contact.
• That the evidence is that S. had her toys at C.O.’s house, including her car seat and sleeping crib for regular naps.
• That there was no evidence of any drinking or substance abuse by either parent at C.O.’s apartment.
• That there was no suggestion of inappropriate supervision.
• That the evidence does support that C.O. was doing better on the suboxone program, and thus good reason for R.M. to believe that C.O. did not pose risk to her and S. as he had in the past.
• That there is no evidence of certainty for S. if permanent care is ordered.
• That S.’s only constant at this time is the bond that she has had with her mother since birth.
• That the child can be safely returned to the care of her mother.
• That the Minister’s application for permanent care should be dismissed.
LAW
[66] In F.H. v. McDougall, 2008 SCC 53, the trial judge stated that in cases involving serious allegations and grave consequences, a civil standard of proof “commensurate with the occasion” must be applied. The Supreme Court of Canada overturned this decision, holding that there is one standard of proof in civil cases, and that is proof upon the balance of probabilities. It is not heightened or raised by the nature of the proceeding.
[67] At paragraphs 40, 45 and 46 of F.H. the Court said:
[40] Like the House of Lords, I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities. Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences. However, these considerations do not change the standard of proof. I am of the respectful opinion that the alternatives I have listed above be rejected for the reasons that follow:
[45] To suggest that depending upon the seriousness, the evidence in the civil case must be scrutinized with greater care implies that in less serious cases the evidence need not be scrutinized with such care. I think it is inappropriate to say that there are legally recognized different levels of scrutiny of the evidence depending upon the seriousness of the case. There is only one legal rule and that is in all cases, evidence must be scrutinized with care by the trial judge.
[46] Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. But again, there is no objective standard to measure sufficiency. In serious cases, like the present, judges may be faced with evidence of events that are alleged to have occurred many years before, where there is little other evidence than that of the plaintiff and defendant. As difficult as the task may be the judge must make a decision. If a responsible judge finds for the plaintiff, it must be accepted that the evidence was sufficiently clear, convincing and cogent to that judge that the plaintiff satisfied the balance of probabilities test.
[68] As noted by the Court of Appeal in M.J.B. v. Family and Children’s Services of Kings County 2008, NSCA No. 64 at paragraph 77:
[77] The Act defines “substantial risk” to mean a real chance of danger that is apparent on the evidence (s.22(1)). In the context here, it is the real chance of sexual abuse that must be proved to the civil standard. That future sexual abuse will actually occur need not be established on a balance of probabilities. (B.S. v. British Columbia (Director of Child, Family and Community Services) (1998), 160 D.L.R. (4th) 264 [1998] B.C.J. No. 1085 (Q.L.) (C.A.) at paras 26 to 30.
[69] The Supreme Court of Canada set out the test to be applied on statutory review hearings in child protection proceedings in the Catholic Children’s Aid Society of Metropolitan Toronto v. M.C. [1994] S.C.J. No. 37, where the Court held that at a status review hearing, it is not the court’s function to retry to original protection finding, but rather, the court must determine whether the child continues to be in need of protective services. Writing for the majority, L’Heureux-Dube, J. stated as follows, starting at paragraph 35:
[35] It is clear that it is not the function of the status review hearing to retry to original need for protection order. The order is set in time and it must be assumed that it has been properly made at the time. In fact, it has been executed and the child has been taken into protection by the respondent society. The question to be evaluated by the courts on status review is whether there is a need for a continued order for protection.
[36] The question as to whether the grounds which prompted the original order still exist and whether the child continues to be in need of state protection must be canvassed at the status review hearing. Since the Act provides for such review, it cannot have been its intention that such a hearing is simply a rubber stamp of the original decision. Equal competition between parents and the Children’s Aid Society is not supported by construction of the Ontario legislation. Essentially, the fact that the Act has as one of its objectives the preservation of the autonomy and integrity of the family unit and that the child protection services should operate in the least restrictive and disruptive manner, while at the same time recognizing the paramount objective of protecting the best interests of children, leads me to believe that consideration for integrity of the family unit and the continuing need of protection of a child must be undertaken.
[37] The examination that must be undertaken on a status review is a two-fold examination. The first one is concerned with whether the child continues to be in need of protection and, as a consequence, requires a court order for his or her protection. The second consideration is of the best interests of the child, an important and, in the final analysis, a determining element of the decision as to the need of protection. The need for continued protection may arise from the existence or absence of the circumstances that triggered the first order for protection, or from circumstances which have arisen since that time.
[70] In reaching a decision regarding the future care of the child, this Court must be guided by the child’s best interests. Section 2(2) of the Children and Family Services Act provides:
2(2) In all proceedings and matters pursuant to this Act, the paramount consideration is the best interests of the child.
[71] Factors to be considered when making a decision in a child’s best interests are enumerated in s. 3(2) of the Act.
3(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 relationship 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 level of development;
f) The child’s physical, mental, and emotional needs, and the appropriate care or treatment to meet those needs;
g) The child’s cultural, racial, and linguistic heritage;
h) The religious faith, if any, in which he child is being raised;
i) The merits of a plan for the child’s care proposed by the 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.
[72] Section 45 of the Children and Family Services Act sets out the total duration of all disposition orders. Section 45(2)(a) provides:
45(2) Where the court has made an order for temporary care and custody, the total period of all disposition orders, including supervision orders, shall not exceed:
(a) Where the child was under fourteen years of age at the time of the application commencing the proceedings, twelve months;
[73] Upon the expiration of the maximum time limit prescribed by s. 45, there are only two possible dispositions orders available to the court: dismissal of the proceedings, or an order for permanent care and custody.
[74] As noted by the Nova Scotia Court of Appeal in G.S. v. Nova Scotia (Minister of Community Services [2006] N.S.J. No. 52 (C.A.) at paragraph 20:
If the children are still in need of protective services, the matter cannot be dismissed.
[75] The principle behind the statutory time limits can be found in the preamble of the Children and Family Services Act, which states:
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.
[76] Commenting on this principle, the Court in B.M. v. Children’s Aid Society of Cape Breton-Victoria [1998] N.S.J. No. 288 (C.A.) stated at paragraph 37:
[37] The strict time limits for proceedings to be taken under the Act are undoubtedly designed to respect the child’s sense of time and to avoid protracted litigation becoming a dominant or central event in a child’s upbringing.
[77] Prior to the Court granting an order for removal of a child from the custody of a parent, the requirements of s. 42(2)(3) and (4) of the Children and Family Services Act must be met.
[78] Section 42(2) provides:
The court shall not make an order removing the child from the care of a parent or guardian unless the court is satisfied that less intrusive alternatives, including services to promote the integrity of the family pursuant to Section 13
(a) have been attempted and failed;
(b) have been refused by the parent or guardian; or
(c) would be inadequate to protect the child.
[79] The obligation to provide services is not without limit. In Children’s Aid Society of Shelburne County v. S.L.S. [2001] N.S.J. No. 138 (C.A.), the Court of Appeal held at paragraphs 35-37:
[35] The trial judge was well aware of this issue which the appellant now raises. It was put to the trial judge, but trial counsel, in terms of giving the appellant “another chance”. The trial judge noted in his decision that “any further services would be inadequate to protect the child.”
[36] In any event the obligation of the Agency to provide integrated services to the appellant is not unlimited. Section 31(1) of the Act obligates the Agency to take “reasonable matters” in this regard.
[37] I agree with the submission of counsel for the Agency that the main limitation on the provision of services in this case was the appellant herself.
[80] Section 42(3) of the Children and Family Services Act provides:
42(3) Where the court determines that it is necessary to remove the child from the care of a parent or guardian, the court shall, before making an order for temporary or permanent care and custody pursuant to clause (d), (e), of (f) of subsection (1), consider whether it is possible to place the child with a relative, neighbour, or other member of the child’s community or extended family pursuant to clause (c) of subsection (1), with the consent of the relative or other person.
[81] At the end of the time limit, the Court may consider existing relationships with family and the availability of family alternatives; but not because s. 42(3) requires it; rather, this is just one aspect of the child’s best interest as defined under s. 3(2) of the Act, which must be weighed along with other factors to determine the child’s best interest. There is an onus on a potential family placement to put before the Court a reasonable plan for the care of the child Children’s Aid Society of Halifax v. T.B., [2001] N.S.J. No. 225 (C.A.)).
[82] Section 42(4) of the Children and Family Services Act provides the court with the authority to make a permanent care order, if the circumstances are unlikely to change within the reasonably foreseeable time. Section 42(4) states as follows:
42(4) The court shall not make an order for permanent care and custody pursuant to clause (f) of subsection (1), unless the court is satisfied that the circumstances justifying the order are unlikely to change within a reasonably foreseeable time not exceeding the maximum time limits, based upon the age of the child, set out in subsection (1) of Section 45, so that the child can be returned to the parent or guardian.
[83] Section 46(6) provides of the Act provides as follows:
46(6) Where the court reviews an order for temporary care and custody, the court may make a further order for temporary care and custody unless the court is satisfied that the circumstances justifying the earlier order for temporary care and custody are unlikely to change within a reasonably foreseeable time not exceeding the remainder of the applicable time period pursuant to subsection (1) of Section 45, so that the child can be returned to the parent or guardian.
[84] Courts in Nova Scotia have established that evidence of past parenting is a relevant consideration in determining the probability of an event reoccurring. In Nova Scotia (Minister of Community Services) v. G.R., 2011 NSCC 88, this Honourable Court summarized the law in Nova Scotia with respect to past parenting, stating as follows at paragraph 22:
[22] Past parenting history is also relevant. Past parenting history may be used in assessing present circumstances. An examination of past circumstances helps the court determine the probability of the event reoccurring. The court is concerned with probabilities, not possibilities. Therefore, where past history aids in the determination of future probabilities, it is admissible, germane, and relevant. In Nova Scotia (Minister of Community Services) v. Z.(S.) (1999), 18 N.S.R. (2d) 99 (C.A.) Chipman, J.A., confirmed the relevance of past history at para 13 wherein he states:
13. I am unable to conclude that the trial judge placed undue emphasis on the applicant’s past parenting. It was, of course, the primary evidence on which he would be entitled to rely in judging the appellant’s ability to parent B.Z. In Children’s Aid Society of Winnipeg (City) v. F. (1978), J.R.F.L. 2(d) 46 (Man. Prov. Ct.) at p. 51, Carr, Prov. J., (as he then was), said at p. 51:
…in deciding whether a child’s environment is injurious to himself, whether the parents are competent, whether a child’s physical or mental health is endangered, surely evidence of past experience is invaluable to the court in assessing the present situation. But for the admissibility of this type of evidence children still in the custody of chronic child abusers may be beyond the protection of the court…
[85] Under the current Children and Family Services Act, the court has no authority to grant access under an Order for Permanent Care and Custody. Any access under an Order for Permanent Care and Custody is at the sole discretion of the Agency. Specifically, s. 47 of the Act provides as follows:
47(1) Where the court makes an order for permanent care and custody pursuant to clause (f) of subsection (1) of Section 42, the agency is the legal guardian of the child and as such has all the rights, powers and responsibilities of a parent or guardian for the child’s care and custody.
47(2) Where the court makes an order for permanent care and custody, the court shall not make any order for access by a parent, guardian or other person.
47(3) Where a child is the subject of an order for permanent care and custody and the agency considers it to be in the child’s best interests, the agency shall, where possible, facilitate communication or contact between the child and
(a) a relative of the child; or
(b) a person who has an established relationship with the child.
[86] In Baker-Warren v. Denault 2009 NSSC 59, which was cited with approval by the Court of Appeal in Hurst v. Gill, 2011 NSCA 100, the Court reviewed factors to be considered when making credibility determinations. Justice Forgeron stated at paragraphs 18 to 20:
[18] For the benefit of the parties, I will review some of the factors which I have considered when making credibility determinations. It is important to note, however, that credibility assessment is not a science. It is not always possible to “articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.” R. v. Gagnon, 2006 SCC 17 (S.C.C.), para. 20. I further note that “assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.” R. v. R.E.M. 2008 SCC 51 (S.C.C.), para. 49.
[19] With these caveats in mind, the following are some of the factors which were balanced when the court assessed credibility:
a) What were the inconsistencies and weaknesses in the witness’ evidence, which include internal inconsistencies, prior inconsistent statements, inconsistencies between witness’ testimony, and documentary evidence, and the testimony of other witnesses: Novak Estate (Re), 2008 NSSC 283 (S.C.);
b) Did the witness have an interest in the outcome or was he/she personally connected to either party;
c) Did the witness have a motive to deceive;
d) Did the witness have the ability to observe the factual matters about which he/she testified;
e) Did the witness have sufficient power of recollection to provide the court with an accurate account;
f) Is the testimony in harmony with the preponderance of probabilities which a practical or informed person would find reasonable given the particular place and conditions. Faryna v. Chorney [1952] 2 D.L.R. 354;
g) Was there an internal consistency and logical flow to the evidence;
h) Was the evidence provided in a candid and straight forward manner, or was the witness evasive, strategic, hesitant, or biased; and
i) Where appropriate, was the witness capable of making an admission against interest, or was the witness self-serving?
[20] I have placed little weight on the demeanor of the witness because demeanor is often not a good indicator of credibility: R. v. Norman (1993), 16 O.R. (3d) 295 (C.A.) at para. 55. In addition, I have adopted the following rule, succinctly paraphrased by Warner, J. in Re: Novak Estate, supra, at para 37:
There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety. On the contrary, a trier may believe none, part, or all of the witness’s evidence, and may attach different weight to different parts of a witness’s evidence. (See R. v. D.R. [1966] 2 S.C.R. 291 at 93 and R. v. J.H., (supra).
[87] In Jacques Home Town Dry Cleaners v. Nova Scotia (Attorney General), 2013 NSCA 4, the Court of Appeal commented on the use of inferences and their importance in the decision making process. Saunders, J.A., stated as follows at paragraph 31:
[31] An inference may be described as a conclusion that is logical. An inference is not a hunch. A hunch is little more than a guess, a 50/50 chance at best, that may turn out to be right or wrong, once all the facts are brought to light. Whereas an inference is a conclusion reached when the probability of its likelihood is confirmed by surrounding, established facts. When engaged in the process of reasoning we are often called upon to draw an inference which acts as a kind or cognitive tool or buckle used to cinch together two potentially related, but still separated propositions. In the context of judicial decision-making, drawing an inference is the intellectual process by which we assimilate and test the evidence in order to satisfy ourselves that the link between the two propositions is strong enough to establish the probability of the ultimate conclusion. We do that based on our powers of observation, life’s experience and common sense. In matters such as this, reasonableness is the gauge by which we evaluate the strength of the conclusion reached through our reasoning.
ISSUE
[88] What is the appropriate Disposition Order in the present circumstances – permanent care or dismissal?
ANALYSIS/DECISION
[89] The Respondents have a history with the Minister. Their oldest child A. was placed in the permanent care and custody of the Minister by consent on December 22, 2016. The Application regarding their daughter S. was commenced by the Minister on April 20, 2018. Concerns have been domestic violence and substance abuse by C.O.
[90] The Minister’s evidence provided details of a violent, abusive, and dysfunctional relationship between R.M. and C.O., marked by serious incidents of drinking, drug abuse, and domestic violence.
[91] Although often the victim of violence at the hand of C.O., R.M. appeared to be trapped in the cycle of abuse, being unable to cooperate with authorities and report the abuse.
[92] R.M. would consistently lie to protect C.O., to her severe disadvantage. She was untruthful with her mother, the police, and the Minister’s staff workers and service providers. R.M.’s untruthful past has made her credibility before this Court suspect.
[93] R.M. demonstrated her self worth and love for her daughter S. by ultimately working with the Minister, completing programs and services, and most importantly acknowledging that C.O. could no longer be in her life if she was to succeed as a mother and parent.
[94] R.M. was most successful in her bid to have S. returned to her care when C.O. was incarcerated and not playing an active role in her life.
[95] Historically R.M. had made strides to remove herself from the lure of C.O., only to abandon safety plans, supports, and return to the abusive relationship. This pattern of behavior was instrumental in R.M.’s child A. being placed in the permanent care and custody of the Minister. This historical pattern cannot be overlooked.
[96] In this instance R.M. appeared to be on the right path. Her child S. was returned to R.M.’s supervised care in March 2018, with plans to terminate their involvement in early September.
[97] Then suddenly the “wheels came off” with the untimely contact between R.M. and C.O. in the late summer of 2018. All of R.M.’s efforts and hard work resulted in a re-apprehension of S., and the Minister’s shift to seek permanent care.
[98] Neither R.M. or C.O. deny the events of August 2018. R.M. has expressed full contrition for her actions. C.O. (through his counsel) acknowledges his wrongdoing and emphasizes to the Court not to punish R.M. for his inappropriate conduct.
[99] Both Respondents were well aware and fully informed about the importance to have no contact with one another in accordance with the Court Order. Both R.M. and C.O. were fully aware that the Minister had a “zero tolerance” rule in effect should that proviso in the Order be breached. R.M. not only breached the Court Order; but also breached the trust of the Minister.
[100] The Court is thus faced with the difficult decision to either place the child S. in permanent care or return her to her mother. Does R.M. deserve a second chance?
[101] I have reviewed and considered the evidence, together with the plan of the Minister, the plan of R.M. (supported by C.O.), and the respective submissions of counsel. Although I may not have specifically commented on all of the evidence in this decision, I have nonetheless, considered the totality of the evidence in reaching this decision.
[102] I have applied the burden of proof to the Minister. There is only one standard of proof and this proof is on a balance of probabilities, a burden which must be discharged by the Minister.
[103] I have considered the applicable law and the legislative provisions of the Children and Family Services Act.
[104] According to the legislation, which I must follow, the Court has only two stark options available at this time:
(1) Order permanent care, or
(2) Dismiss the proceeding and return S. to the Respondent
mother, R.M.
[105] There is no middle ground. As noted in G.S. v. Nova Scotia (Minister of Community Services) [2003] N.S.J. No. 52 (NSCA) at paragraph 20:
If the children are still in need of protective services the matter cannot be dismissed.
[106] The law is also clear that should a trial judge conclude that the circumstances are unlikely to change, that the judge has no option but to order permanent care. Nova Scotia (Minister of Community Services) v. L.L.P. [2003] NSJ No. 1 (NSCA).
[107] The need for protection may arise from the existence or absence of the circumstances that triggered the first Order from protection, or from circumstances which have arisen since that time. G.S. v. Nova Scotia (Minister of Community Services) supra.
[108] It is not the Court’s function to retry the original protection finding, but rather the Court must determine whether or not the child, S. continues to be in need of protective services.
[109] I have scrutinized the evidence with care. I am satisfied that the evidence of the Minister is sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. The contention that the Respondent, R.M. poses a substantial risk of harm or real chance of danger to her child has been proven to the Court’s satisfaction on a balance of probabilities.
[110] I reject the plan put forth by R.M.. Her plan does not address the short-term and long-term needs of S. Obviously some progress has been made by R.M., but the events of August 2018 clearly establish that R.M. has no meaningful insight into the child protection concerns associated with C.O. C.O.’s recent steps to improve himself may have impressed R.M. to the extent that she decided S. was safe in his presence. From the Court’s perspective such a decision lacked insight and was dangerous in the context of the expressed child welfare concerns in this matter.
[111] Whether or not R.M. spent a couple of hours with C.O., or a couple of days or nights with C.O., is not an issue of concern for the Court. No inference is required to be drawn by the Court in this instance.
[112] The fact remains that S. was placed at risk for whatever period of time. R.M. chose to have S. in C.O.’s apartment. The Court cannot control R.M. should she wish to go back to C.O.; but her decision to do so adversely affected the safety of S. This cannot be tolerated or rationalized to any extent.
[113] I accept R.M.’s evidence that she “may not have been thinking” or “that it was not intentional”. Neither explanation, however, minimizes the risk to S. associated with her decision.
[114] The Court finds that it is not safe to put R.M. in a child caring role at this time. The evidence is clear, convincing and cogent that R.M. cannot be entrusted with the care of her daughter S. There will be no second chance. It is too dangerous for S.
[115] R.M. acknowledged her mistake and testified it would never happen again. She testified that she is done with C.O. The question is whether or not C.O. is done with R.M.? R.M. has not established a base of credibility upon which the Court can conclude that C.O. is completely out of her life. R.M. mouths the words, but the court does not find her credible. To this point the history of the relationship with C.O. betrays R.M.’s expressed good intentions in this regard.
[116] R.M.’s proposal that she will move to Antigonish, Nova Scotia, and have nothing more to do with C.O. is rejected by the Court. R.M.’s plan is unsubstantiated; non-corroborated; it is not sound; it is not sensible; it is not well conceived…it is not in the best interests of S.
[117] S. remains a child in need of protective services. It is not safe to return S. to R.M.’s care. This matter, thus, cannot be dismissed.
CONCLUSION
[118] The outstanding protection concerns remain unchanged. The legislative timelines in this proceeding have been exhausted. Nothing more can be done to reliably address the child welfare concerns about the Respondent, R.M. The statutory requirements of S. 42(2), (3) and (4) have been met.
[119] The Court finds the Order requested by the Minister is the appropriate one, having considered the totality of the evidence and applicable law. The Court agrees with and accepts the Minister’s submissions. It is in the best interests of S. to be placed in the permanent care and custody of the Minister, pursuant to s. 42(1)(f) and s. 47 of the Act. The circumstances justifying this conclusion are unlikely to change within a reasonably foreseeable time.
[120] An Order for Permanent Care and Custody in favour the Minister will thus issue, with no provision for access.
Order Accordingly.
Haley, J.