Supreme Court

SUPREME COURT OF Nova Scotia

FAMILY DIVISION

Citation: J.A. v. S.B., 2023 NSSC 46

Date: 20230213

Docket: SFAMPSA-119512

Registry: Amherst

Between:

J. A.

Applicant

v.

 

S. B.

Respondent

 

 

DECISION

 

Judge:	The Honourable Justice Robert M. Gregan
Heard:	September 28, 2022, and November 30, 2022, in Amherst, Nova Scotia
Written Release:	February 13, 2023
Counsel:	Robert Moores for the Applicant, J.A. S.B., Self-Represented Respondent

 

By the Court:

Introduction

[1]             This matter involves the child J., who is now thirteen years of age. J. is transgender and identifies as he.

[2]             At the outset of both the Children and Family Services Act proceedings, which will be referred to as the “CFSA proceedings”, that concluded, and the current Parenting and Support Act proceeding, which will be referred to as “PSA proceeding”, J. was referred to as S.

[3]             I will however, throughout this decision given his wishes, refer to J. as J., or him, or he.

[4]             I would say as well that the process of transitioning can be a difficult process. One that is exacerbated in this case by the fact that J. has been placed in the middle of a high conflict custody dispute.

Issues

[5]             The issues I must decide in this case are as follows:

1.     In whose primary day-to-day care and which parent should be responsible for decision-making as it relates to J.?

 

2.     What is the appropriate parenting arrangement for J.?

[6]             Overarching these two issues is what is in J.’s best interests?

Background

[7]             Prior to the summer of 2020 both parties and J. were residents of the province of Ontario.  J.A. however grew up in Amherst, Nova Scotia and has ties to the area.

[8]             Although an Order was granted in 2018 placing J. in the primary care of S.B. with access to J.A. there has been in the background a long-standing involvement with Family and Children’s Services - Frontenac, Lennox and Addington in Kingston, Ontario dating back to 2013.

[9]             Children’s Aid Society involvement continued after the granting of the 2018 Order on a continuous basis including and up until the then CFSA proceedings commenced in Nova Scotia.

[10]         While in Ontario the following concerns were noted:

•        Domestic violence between S.B. and J.A. alleged to have been perpetrated with both parties as aggressors.

 

•        Violence by S.B. upon J. by slapping him in the face, yelling, screaming, and cursing at him.

 

•        The state of the family home (resulting in the home twice being deemed by local fire department officials as uninhabitable).

 

•        In addition, S.B. was charged with and convicted of a number of criminal offences, and as a result she was:

 

•      the subject to a peace bond.

 

•      placed on probation.

 

•        S.B. was also the subject to two Orders pursuant to the provincial legislation in Ontario which resulted in S.B. having two admissions to the hospital for mental health issues. On one of these occasions, she tested positive for crystal meth.

[11]         All of this information was found in Exhibit 2 of these proceedings (Agency Production Materials) and were summarized in both written letters by Children’s Aid Society to S.B. and in Affidavits filed by a social worker in Ontario in the Nova Scotia CFSA proceedings.

[12]         By April of 2020 and throughout the summer of 2020 matters had escalated between S.B. and Children’s Aid Society in Ontario to the point where Children’s Aid Society in Ontario had developed a safety plan for J.

[13]         Under that safety plan S.B. was not to be left alone in a parenting role with J.

[14]         In taking this position Children’s Aid Society relied on:

•        Continued undiagnosed mental health of S.B.

•        Continued erratic behaviors of S.B. and unwillingness to work with Children’s Aid Society workers and lack of engagement in mental health services.

•        State of the home.

[15]         In June of 2020 S.B. and J.A. agreed that J.A. and J. could travel to Amherst, Nova Scotia for the summer returning on August 10, 2020.

[16]         J.A. and J. did not return.

[17]         While in Nova Scotia, additional disclosures were made by J.A. against S.B. J. also made additional disclosures against S.B.

[18]         S.B. contacted a number of agencies with referrals and concerns regarding J. in J.A.’s care. These included referrals to police that J. had been “abducted”.

[19]         During this time (Fall 2020):

•        J.A. made application to the Court in Nova Scotia under the PSA seeking custody.

•        At the urging of Children’s Aid Society in Ontario, the Minister in Nova Scotia became involved with the parties and with J.

[20]         Also, during the Fall of 2020, Children’s Aid Society in Ontario wrote to S.B. once again confirming their protection concerns, and, confirming that they did not support J. being in S.B.’s care.

[21]          Children’s Aid Society also confirmed with S.B. that the safety plan involving J.A. was no longer viable given that J.A. was now living in Nova Scotia.

[22]          Children’s Aid Society also cautioned S.B. that if she exercised her legal rights to J. and attempted to return J. to Ontario that it would warrant protective intervention by Children’s Aid Society in Ontario.

[23]         The letter by Children’s Aid Society - Frontenac, Lennox and Addington dated September 15 (contained in Exhibit 2 of the proceedings) also stressed that while they were closing their file, they were doing so because the Minister of Community of Services in Nova Scotia was involved. That letter once again confirmed that there remained unaddressed mental health issues regarding S.B., which would result in protective intervention if J. was returned to her care in Ontario.

[24]         Despite this, S.B. continued to assert that the actions of J.A. were tantamount to ‘an abduction’, and, despite the position of the Children’s Aid Society in Ontario and the involvement of the Minister of Community Services in Nova Scotia, S.B. drove to Nova Scotia from Ontario and attempted to return J. to Ontario on November 2, 2020. This resulted in S.B. and J. being detained in Oromocto, New Brunswick in the middle of the night.

[25]         This resulted in trauma being placed on J. and was done so by S.B. despite knowing that:

•        The police were not treating the matter as an abduction.

•        The matter was before the court in Nova Scotia.

•        The Minister of Community Services in Nova Scotia and Children’s Aid Society in Ontario were not supporting:

•      J. remaining in her care.

•      J. returning to Ontario.

[26]         Clearly S.B. acted contrary to J.’s best interests.

History of Court Proceedings in Nova Scotia

 

CFSA Proceedings (Protective-intervention Order)

[27]         As a result of the referrals from Family and Children Services - Frontenac, Lennox and Addington in Kingston, Ontario, and the attempts by S.B. to remove J. from Nova Scotia, the Minister of Community Services in Nova Scotia made application pursuant to Section 30 of the CFSA seeking a Protective-intervention Order. The application was heard before me on November 5, 2020, and the court granted an Order that S.B. was not to contact or associate with the child in any way except contact supervised by J.A. or a third party designated by him. The court also ordered that S.B. shall not remove, or attempt to have removed, the child S.[J.] from the province of Nova Scotia and also included provisions for enforcement by law enforcement agencies.

[28]         The Order was granted because the court was advised of attempts by S.B. to remove J. and secondly the court was advised that J.A. required time to obtain counsel and make an application under the PSA.

[29]         The court in granting the Order directed a review of that matter take place on November 19, 2020.

[30]         On November 19, 2020, the matter was before me again for review and the court terminated the Protective-intervention Order.

The Notice of Child Protection Application

[31]         The Minister of Community Services filed a Notice of Child Protection Application dated November 24, 2020, which was before me on November 26, 2020. Ms. Brown from Nova Scotia Legal Aid was present on behalf of S.B. The court over the objections of S.B. determined that it had jurisdiction to deal with the CFSA proceeding.

[32]         The court however declined to grant a Supervision Order in favour of J.A. and ordered a Supervision Order in favor of S.B.

[33]         The court ordered a review within thirty days (completion of the Section 39) and expected to hear on that date that one of the following three things had occurred:

1.     S.B. was residing in Nova Scotia and working with the Minister, or alternatively,

2.     That the proceedings in Nova Scotia were terminated in favor of commencement of proceedings in Ontario, or

3.      That there continued to be a courtesy supervision by the Ontario agencies of the Nova Scotia Supervision Order.

Application to Vary by the Minister

[34]         Following the November 26, 2020, appearance an Application to Vary was made by the Minister seeking a change of the Supervision Order from S.B. to J.A. That application was before me on December 9, 2020.

[35]         Also, on December 9 there was an application by S.B. seeking to enforce the Supervision Order. The court granted the Application to Vary and declined to enforce the Supervision Order in favor of S.B. because:

1.     The court was satisfied that the Minister had shown a change in circumstances.

 

2.     The Affidavit of Heidi Melanson of December 7, 2020, (Exhibit 2 of these proceedings), set out follow-up information provided by the Minister’s office in Ontario. Children’s Aid Society in Ontario stated that there was an inability to supervise S.B., citing several concerns.

[36]         The concerns identified by the workers at the Children’s Aid Society in Ontario were as follows:

•        State of the home of S.B.

 

•        Refusal of S.B. to permit workers to photograph a portion of her home.

 

•        The conclusion of the Children’s Aid Society that S.B. was unable to be supervised, or act under a Supervision Order without a safety plan being in place.

 

•        That S.B. was advising workers in Nova Scotia that she was not prepared to work with them.

 

•        Workers in Ontario also advised the Minister in Nova Scotia that if J. was returned to S.B.’s care at present it would require a removal of the child J. and that J. would be taken into temporary care.

 

•        Also, workers in Ontario spoke to S.B.’s family doctor in Ontario and it was determined that S.B. had not kept in contact with her family doctor, Dr. Cowan, since September 2020.

 

•        Also raised as a concern was that her family doctor, Dr. Cowan, had been having difficulty getting S.B. to agree to a psychiatric assessment. As well Dr. Cowan was reporting that S.B. was reporting as unwell and paranoid. S.B. also at the time was refusing drug screening which was recommended by her family doctor.

[37]         Ultimately S.B. did submit to a Psychological Assessment which was conducted by Dr. Altrows. That report dated November 21, 2020, is also found in Exhibit 2 (Agency Production Materials) and that the summary of Dr. Altrows was as follows:

Conclusion

In my opinion, … [S.B.]… has a substantial mental impairment and is substantially functionally disabled in view of substance use disorder and other apparent mental disorders as discussed above. In my opinion, the substantial mental impairment will last continuously for at least one year. In my opinion, as a result of substantial mental impairment, … [S.B.] … is not capable of normal functional ability in activities of daily living, normal social activities, or vocational activities. In terms of the DSM-IV categorization of global assessment of functioning, I would presently rate her GAF as falling in the 30-40 range, with both symptom severity and functioning level in this range.

[38]          The Minister in Nova Scotia, also through Affidavit evidence, indicated that S.B. was not willing to cooperate with workers in Nova Scotia.

[39]         As a result, as mentioned the court varied the previous Supervision Order and ordered J. be placed in the care of J.A. and access to S.B. at the discretion of the Minister. The court further ordered that J.A. was to receive the following services:

•        he be referred to and cooperate with a family skills worker.

 

•        he be referred to and cooperate with domestic violence counselling.

[40]         For S.B. the following was ordered:

•        she would continue to cooperate and participate in services arranged and recommended by Family and Children Services - Frontenac, Lennox and Addington.

 

•        she would identify any doctors and/or service providers including psychiatrists, mental health workers or counsellors involved with S.B. to the agency.

 

•        she would sign all consents to allow communication between the agency and such doctors and service providers including psychiatrists and mental health workers or counsellors.

 

Protection Finding

[41]         On December 24, 2020, at the completion of the Section 39 Hearing, the court found there continued to be reasonable and probable grounds to believe that J. remained a child in need of protective services and the matter was adjourned until February 11, 2021, for a Combined Pre-Trial and Protection Hearing. In adjourning the matter to February, the court emphasized the importance of maintaining J.’s continuing receipt of mental health counselling. 

[42]         The matter returned before me for Combined Pre-Trial and Protection Hearing on February 11, 2021. At the February 11 appearance S.B. through her counsel did not contest a finding being made pursuant to Section 22(2)(b) that there was a substantial risk that J. will suffer physical harm inflicted or caused by a parent or caused by the failure of a parent to protect the child adequately.

[43]         J.A. who remained unrepresented agreed with the Minister’s position.

[44]         S.B. through her counsel also requested a hearing on the issue of placement of the child J. and that it be changed from a Supervision Order with J.A. to S.B.

[45]         The court declined to do so because S.B. had failed to provide the necessary consents as ordered by the court on December 9, 2020.

[46]         The net result was that:

•        The Minister was unable to gather information regarding steps by S.B. taken to address mental health concerns and other concerns.

 

•        The court therefore had no evidence on record before me at the February 11 appearance that those concerns had been addressed and therefore the court determined it was not in the best interests of J. that a Placement Hearing be held or placement with S.B. be considered at that time.

 

The Disposition Hearing

[47]         The matter was adjourned until April 22, 2021, for a Combined Pre-Trial and Disposition Hearing and at that appearance the court was advised that the Minister was seeking a Guardian Ad Litem and it hoped to do so by way of Motion by Correspondence. But the Minister had been advised by counsel for S.B. that there had been a breakdown in the solicitor/client relationship between S.B. and her lawyer.

[48]         The court granted the appointment of a Guardian Ad Litem by consent as S.B. advised on her own behalf that she was consenting to a Guardian Ad Litem being appointed. The court was also advised by Ms. Brown of the breakdown in solicitor/client relationship between her and S.B.  Ms. Brown did advise however, that Legal Aid would be prepared to provide additional counsel to S.B.

[49]         Ms. Brown was permitted to withdraw as counsel, and S.B. advised she was in the process of obtaining a psychiatric evaluation, and would provide that information to the Minister.

[50]         There was an appearance on May 6, 2021, and at that appearance S.B. was now represented by Ms. Stacey Merrigan as counsel and Ms. Karen Killawee was also present on behalf of the Guardian Ad Litem, Harvey Bate. J.A. appeared and continued to be self-represented.

[51]         At the May 6 appearance the Disposition Hearing was held and Mr. Melvin, counsel for the Minister, advised that J. had been refusing to participate in access with S.B. S.B. had previously agreed to do the psychiatric assessment with Dr. Pogosyan and was now refusing to do so.

[52]         It was reported that the child J. was being connected with Devin Rankin for counselling and provided a laptop to facilitate counselling.

[53]         The Minister was seeking a continuation of the Supervision Order moving forward for review. The Minister was also requesting a complete psychiatric assessment on S.B. to be completed by someone in Nova Scotia that was known to the Minister and arranged by the Minister.

[54]          Ms. Merrigan on behalf of her client advised that her client was agreeable to signing all necessary consents.

[55]         Ms. Merrigan further advised that S.B. was not in agreement with child protection concerns and was contesting the placement of the child once again and that the child be placed with her in Ontario. Ms. Merrigan clarified on behalf of S.B. that her client was contesting for today’s purposes and was not in agreement with the Order being requested by the Minister.

[56]          Ms. Killawee on behalf of the Guardian Ad Litem confirmed that the Guardian Ad Litem was consenting to the Supervision Order being put forward by the Minister.

[57]         The court granted a Disposition Order and noted from the Guardian Ad Litem report that the child is now identifying as J.

[58]         The court clarified previous court appearances and the chronology of the proceedings. The court also noted that at the last appearance in February that a protection finding had been made pursuant to Section 22(2)(b) of the CFSA that there were concerns centered around mental health as related to S.B. and whether or not some issues were related to mental heath or addiction issues.

[59]         The court noted that there were assessments that were carried out but agreed there should be another assessment completed as the one previously dealt with similar issues was unclear. The court granted the Disposition Order and the matter was to return on July 29, 2021, at 11:30am. 

The Disposition Review

[60]         The matter was back before me on July 29, 2021, for Disposition Review and at that time the court was advised that Ms. Merrigan was having difficulties obtaining instructions from her client and she was prepared to continue to remain on the file.

[61]          Mr. Melvin on behalf of the Minister advised the Minister was being contacted by police agencies in Ontario reporting that there had been complaints by S.B. that J.A. had kidnapped the child.

[62]         There were also concerns expressed that there continued to be provisions and steps taken to garnish J.A.’s wages.

[63]         Counsel for the Guardian Ad Litem was present and confirmed agreement with the continuation of the Disposition Order and Supervision Order with J.A. J.A., self-represented, consented as well.

[64]         Ms. Merrigan indicated that S.B. was still wishing to have a Placement Hearing and still wishing to contest the Minister’s position but Ms. Merrigan acknowledged that given the lack of instructions she was not prepared to seek a hearing date at that time.

[65]         The court once again granted the Disposition Order and the matter was scheduled to return on October 21, 2021, at 11:30am.

[66]         At the appearance on October 21 S.B. was not present. All other parties were present including counsel.  At that time the court was advised there was a Revised Plan of Care that was going to be filed by the Minister. That plan was seeking a termination in favor of a PSA application by J.A.

[67]         Ms. Merrigan on behalf of S.B. indicated that she had not had contact with her client, had made a number of attempts which had been unsuccessful and was surprised that S.B. was not present at the appearance.

[68]         Ms. Merrigan indicated that she had not received instructions and would be making a further Motion to Withdraw as solicitor.

[69]         The Guardian Ad Litem took the position of continuing to support the Minister’s position and was aware of the Minister’s Revised Plan of Care. J.A. also supported the Plan of Care.

[70]          The court acknowledged the Minister needed additional time to file a new plan and there was still some time within the deadline for this to occur.

[71]         The court granted the Supervision Order that was requested and set the matter over with sufficient time for Ms. Merrigan to get instructions on behalf of S.B., and also to allow sufficient time for J.A. to retain counsel and make the PSA application.

[72]         The matter was adjourned to December 7, 2021, at 10:00 am.

Termination of CFSA Proceedings in favor of a PSA Order

[73]         At the December 7 appearance, Ms. Merrigan made a formal Motion to Withdraw as counsel for S.B., and that Motion was granted.

[74]         A Termination Order was also granted under the CFSA in favour of a PSA Order which had the following terms and conditions:

•        that the child J. (formerly known as S.) will be in the primary day-to-day care of J.A.

 

•        parenting time for S.B. was to be at the discretion of J.A.

 

•        the child is to reside and the residence of the child would be in the Province of Nova Scotia unless otherwise ordered by the court.

 

•        the child was not to be removed from the Province of Nova Scotia without the written consent of both parties.

 

•        J.A. was not to change his residence without 90 days’ notice to S.B.

[75]         There was also a provision that the Order could be registered in the Province of Ontario under reciprocal legislation, and the Minister was to be provided notice of any subsequent court applications to change the Order.

[76]         The matter was adjourned until February 24, 2022, to allow the parties to retain counsel.

Current Proceeding under the PSA

[77]         On February 24, 2022, the court was advised that both parties were still in the process of obtaining lawyers. The court agreed to a short adjournment because the matter needed to proceed and move forward. The court had been advised at the previous appearance when the CFSA proceedings were terminated that J. through his Guardian Ad Litem had expressed that J. was anxious to have the matters concluded. The court therefore granted an adjournment until March 31, 2022, which was a fairly quick turnaround.

March 31, 2022, Court Appearance

[78]         At the appearance on March 31, 2022, both parties were present and again appeared without counsel. The court had a discussion with the parties with respect to potential witnesses. The court was also of the view that it was important to have a date to work towards and setting of a hearing date, with filing deadlines and dates for Pre-Trial. As a result, the court directed that the matter be set for a full day hearing on September 28, 2022, from 10:00am to 4:30pm, and filing deadlines for materials were provided for both parties.

June 30, 2022, Pre-Trial Conference

[79]         A Pre-Trial was set for June 30, 2022, at 9:30am. At the June 30 appearance J.A. was present with counsel, Robert Moores. S.B. appeared to continue to remain unrepresented. At that time there was a request and the court granted an Order for Production as it related to files contained in the CFSA proceedings. At that time there was also a request for a Voice of the Child Report. The court declined to order a Voice of the Child Report because the court was of the view that it was not in J.’s best interests to be further involved directly with the matters. The court was of the view that the Guardian Ad Litem Report would be used as opposed to a Voice of the Child Report. The Guardian Ad Litem Report would be entered into evidence and the Guardian Ad Litem would be made available for cross-examination.  The matter was adjourned for further Pre-Trial and Case Management on July 22, 2022.

July 22, 2022, Case Management Conference

[80]         At the Case Management Conference on July 22, 2022, a number of other issues were discussed. Mr. Moores had advised that he had received the materials from the Production Order from the CFSA proceeding which was in excess of 300 pages, with Affidavits and reports and Mr. Moores on behalf of J.A. advised that he would be calling one worker, and was not certain who that would be, and Mr. Bate, the Guardian Ad Litem would be available to give evidence and be cross-examined as well as J.A. and his partner, P.A.

[81]         There was also discussion about a digital recording from S.B. where S.B. was questioning J. and there was objection as to the admissibility of that recording. Mr. Moores also advised he had provided a copy of the materials to S.B. and given their volume could not be sent via email, so they were sent via Priority Post. The court indicated that because there was an objection as to the admissibility of the video interview between S.B. and J. that the document would be sealed and would be the subject of a voir dire on the issue of admissibility.

[82]         The court explained the process of a voir dire to S.B. including requirements to be proven to deal with the admissibility of child hearsay statements. The court also noted that it was concerned that the child was being involved directly in this matter given that the court had declined a Voice of the Child Report. Again, the parties were reminded of the previous ruling about the Guardian Ad Litem evidence. The matter was scheduled for another Case Management Conference prior to hearing on September 15, 2022, at 3:30pm.

September 15, 2022, Pre-Trial Conference

[83]         On September 15, 2022, both parties were present, and Mr. Moores on behalf of J.A.

[84]         S.B. remained unrepresented. Mr. Moores advised that original material from the Minister had been disclosed to S.B. and his office was in the process of putting together Exhibit books. He also advised there would be two Exhibit books, including documents that were filed up until June 27, 2022. He also advised that a third book, being the Minister’s disclosure was also being prepared.

[85]         Mr. Moores stated that he was in the process of ensuring a worker would be available and was in discussions with the Minister regarding that.

[86]         There were discussions about further materials that were filed by S.B. following the previous court appearance.

[87]         Mr. Moores advised he would want to cross-examine Kimberly Stacey, Jennifer Ducharme and Joseph Ducharme, some of the witnesses that had been provided by S.B. Mr. Moores conceded that Dr. Cowan’s materials would be included by consent without the necessity to cross-examine the doctor.

[88]         Mr. Moores advised he was not opposed to S.B.’s witnesses giving evidence via telephone as opposed to requiring them to travel to Nova Scotia for the hearing.

[89]         S.B. advised that she wanted Dr. Cowan to be called to the stand and give evidence.

[90]         The court explained to S.B. that Dr. Cowan was a family doctor, and that although there was consent without requirement of cross-examination that if S.B. was seeking to call Dr. Cowan to give further evidence as an expert it would require an expert’s report under the Civil Procedure Rules. The process was explained to her and that it would not be possible for Dr. Cowan to come and give evidence without compliance with Rule 55.  The court further stated that the materials she provided would be considered by the court, but Dr. Cowan would not be permitted to give further evidence in the matter.

[91]         The court further expressed concern, given that the hearing was scheduled for September 28, 2022, that there would be insufficient time for an expert report to be prepared in compliance with Civil Procedure Rule 55.

[92]         The court therefore confirmed the matter would proceed based on the directions given by the court.

[93]         S.B. indicated that there were two witnesses from the Minister’s office that she wished to cross-examine, from the materials filed by Mr. Moores. The court directed that if there were additional witnesses that S.B. wanted to hear from in relation to the Minister’s materials that it would be her responsibility to subpoena those witnesses to have them available.

The PSA Hearing

[94]         The hearing took place on September 28 and November 30, 2022. At the hearing on September 28 the following Exhibits were marked:

•        Exhibit 1: Book of Exhibits tabs 1-8 tendered by Mr. Moores

 

•        Exhibit 2: Agency Production Materials tendered by Mr. Moores

 

•        Exhibit 3: Book of Exhibits tabs 1-9 tendered by S.B.

[95]         The court also heard from the following witnesses: Jacqlyn McIver, Social Worker, Harvey Bate, Guardian Ad Litem, J.A., and P. A. and that concluded day one of the proceedings. Although scheduled for previous dates ultimately the second day of the hearing took place on November 30 and at that time there were additional exhibits that were marked:

•        Exhibit 4: Exhibit Book tabs 1-4 tendered by S.B.

 

•        Exhibit 5: IWK Interdisciplinary Discharge Notes tendered by Mr. Moores

 

•        Exhibit 6: USB drive with video clips tendered by S.B.

[96]         Ultimately Mr. Moores on behalf of J.A. indicated that a voir dire would not be required regarding the admissibility of Exhibit 6: USB drive with video clips, and that his client was content to have the court determine the issue of ultimate reliability as it related to that Exhibit. Before reviewing the evidence, I will now set out the position of the parties.

Position of Parties

 

J.A.

[97]         J.A. relied on the materials from previous CFSA proceedings including the Guardian Ad Litem Report, all of which were contained in Exhibit 2 in the proceedings as well as J.A.’s Affidavit and the Affidavit of his current partner, P.A. which were contained in Exhibit 1. J.A. took the position that there remains an outstanding risk to J. if returned to S.B.’s care.

[98]         J.A. acknowledged there had been emotional and behavioral issues with J. in his care but says that they were because of:

•         S.B.’s failure to recognize J. as transgender.

 

•         Continued pressure by S.B. to have J. returned to Ontario despite risks and contrary to J.’s wishes.

 

•         The Guardian Ad Litem reported that J. expressed views and wishes to remain in the care of J.A. in Nova Scotia.

 

•         The lack of communication and high conflict between the parties, he and S.B. were not able to co-parent.

 

•         It is in the best interests of J. to remain in his care and that at present there be no contact or limited contact with S.B.

 

•         S.B.’s unaddressed mental health issues continue to pose a risk to J.

S.B.

[99]         S.B. sought to have J. returned to her care and S.B. says there are no longer any risks if J. is returned to her care.

[100]    S.B. also says that all of J.’s emotional and behavioral problems are because:

•         J. wishes to be in her day-to-day care.

•         she is unable to have parenting time with J. which is affecting J.’s emotion and behaviour.

[101]    S.B. also says that if granted day-to-day care, she, and J.A. will be able to co-parent.

[102]    S.B. also relying on Exhibit 6: USB drive with video clips says that this is proof that J. wishes to return to her care and remain in her day-to-day care.

Analysis

[103]    To resolve the outstanding issues the court must look at the authority found within the legislation and the appropriate case law. The governing legislation is the PSA and the factors set out in Section 18(6):

18   (6) In determining the best interests of the child, the court shall consider all relevant circumstances, including

            (a) the child’s physical, emotional, social and educational needs, including the child’s need for stability and safety, taking into account the child’s age and stage of development;

            (b) each parent’s or guardian’s willingness to support the development and maintenance of the child’s relationship with the other parent or guardian;

            (c) the history of care for the child, having regard to the child’s physical, emotional, social and educational needs;

            (d) the plans proposed for the child’s care and upbringing, having regard to the child’s physical, emotional, social and educational needs;

            (e) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including the child’s aboriginal upbringing and heritage, if applicable;

            (f) the child’s views and preferences, if the court considers it necessary and appropriate to ascertain them given the child’s age and stage of development and if the views and preferences can reasonably be ascertained;

            (g) the nature, strength and stability of the relationship between the child and each parent or guardian;

            (h) the nature, strength and stability of the relationship between the child and each sibling, grandparent and other significant person in the child’s life;

            (i) the ability of each parent, guardian or other person in respect of whom the order would apply to communicate and cooperate on issues affecting the child;

            (ia) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child; and

            (j) the impact of any family violence, abuse or intimidation, regardless of whether the child has been directly exposed, including any impact on

            (i) the ability of the person causing the family violence, abuse or intimidation to care for and meet the needs of the child, and

            (ii) the appropriateness of an arrangement that would require co-operation on issues affecting the child, including whether requiring such co-operation would threaten the safety or security of the child or of any other person.

[104]    While I have reviewed all of the factors under Section 18(6), I will only highlight in my decision those that are significant in deciding this matter.

[105]    Section 18(6)(a):

(a) the child’s physical, emotional, social and educational needs, including the child’s need for stability and safety, taking into account the child’s age and stage of development;

It is significant because here we are dealing with a thirteen-year-old in the process of transitioning.

Clearly in my view J. needs safety and stability to do so, and, encouragement as well as counselling throughout this process. It is also clear from my review of the evidence that J. is struggling, and has been having emotional, and behavioural issues, to the point of both self harm by J. and more recently hospitalization.

[106]    Section 18(6)(b):

(b) each parent’s or guardian’s willingness to support the development and maintenance of the child’s relationship with the other parent or guardian;

Here both prior to relocation and particularly since the proceedings commenced the interaction between J.A. and S.B. has been highly conflictual and there has been an inability to co-parent.

[107]    Section 18(6)(c):

(c) the history of care for the child, having regard to the child’s physical, emotional, social and educational needs;

Here as mentioned from 2013 to 2020 there was a long history with involvement with Children’s Aid Society in Ontario. This involvement with Children’s Aid Society continued as part of the process in Nova Scotia. As stated, the involvement of Children’s Aid Society resulted in a safety plan in Ontario and J. was placed in J.A.’s care. As well there were CFSA proceedings and protection findings made here in Nova Scotia, ultimately terminating with the child being placed in J.A.’s care.

[108]    Section 18(6)(d):

(d) the plans proposed for the child’s care and upbringing, having regard to the child’s physical, emotional, social and educational needs;

I will have more to say about the proposed plans of each party within my decision and the weighing of each of their plans and potential risks.

[109]    Section 18(6)(e):

 (e) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including the child’s aboriginal upbringing and heritage, if applicable;

There was some reference in the proceedings to S.B. identifying as First Nations. There is no evidence before the court to support this requirement to consider this subsection of Section 18(6). Given also that it was acknowledged by S.B. that the child J. does not identify with any particular band, this section does not apply.

[110]    Section 18(6)(f):

(f) the child’s views and preferences, if the court considers it necessary and appropriate to ascertain them given the child’s age and stage of development and if the views and preferences can reasonably be ascertained;

As stated, the court was of the view that the Guardian Ad Litem Report was appropriate versus the Voice of the Child Report. It was not appropriate to have J. subjected to further direct involvement in the proceedings. It was also not appropriate to adjourn the hearing which would take additional time for a Voice of the Child Report to be prepared. As part of the views of the child I have been asked to consider video clips of an interview between S.B. and the child. Again, I will have more to say about that in my decision.

[111]     Section 18(6)(g):

(g) the nature, strength and stability of the relationship between the child and each parent or guardian; 

The parties take differing views on this. J.A. takes the view that the parties are not able to co-parent, and S.B. indicates the parties are able to do so. Again, this would require findings of credibility and I will refer to it later in my decision.

[112]    Section 18(6)(i):

(i) the ability of each parent, guardian or other person in respect of whom the order would apply to communicate and cooperate on issues affecting the child; 

This is a high conflict case. S.B. says the parties can cooperate and communicate and J.A. disagrees. Once again, I will have more to say in my decision.

[113]    Section 18(6)(j)

(j) the impact of any family violence, abuse or intimidation, regardless of whether the child has been directly exposed, including any impact on;

I will refer further to this in my decision.

Case Authorities

[114]    In order to decide these issues, I must make findings of credibility. In Baker-Warren v. Denault, 2009 NSSC 59, Forgeron, J. set out the helpful factors to be considered by the court in determining credibility at paragraph 19:

[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 the witness’ testimony, and the documentary evidence, and the testimony of other witnesses: Re: Novak Estate, 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 a 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 and 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?

Evidence

[115]    At the outset of this decision, I reviewed the history of the Children’s Aid Society proceedings in Ontario and Nova Scotia.

[116]    Those documents were introduced in these proceedings as Exhibit 2 (Agency Production Materials). That Exhibit contained evidence from a number of social workers, both in Nova Scotia and Ontario. As well, it contained psychotherapy reports for both J. and J.A., as well as two Guardian Ad Litem Reports by Mr. Bate, Guardian Ad Litem.

[117]    Both Jacqlyn McIver, Primary Social Worker on the CFSA proceeding in Nova Scotia and the Guardian Ad Litem, Mr. Bate, gave evidence and were made available for cross-examination.

[118]    Although S.B. opposed the introduction of the materials as being not relevant, the court overruled the objection and admitted the materials.

[119]    S.B. was also advised that she could seek to cross-examine any of the witnesses identified in the agency materials. She chose to cross-examine Ms. McIver and Mr. Bate.

Findings

[120]    From the evidence in Exhibit 2 and evidence of the witnesses, Ms. McIver and Mr. Bate, I find as follows:

1.     There was a long-established history of Children’s Aid Society involvement with both J.A. and S.B.

 

2.     I accept at the time that J.A. and J. relocated to Nova Scotia in summer of 2020, there was a clear direction that J. be placed in the day-to-day care of J.A. That safety plan had been in place since at least April 2020, and required S.B. not be alone in a parenting role with J.

 

3.     I also accept from the evidence that S.B. was diagnosed in 2020 with undetermined mental health issues. That the inability to finally diagnose these mental health issues was due to S.B.’s failure to cooperate with her family doctor, Dr. Cowan, and psychiatrist, Dr. Altrows, who performed the psychological evaluation.

 

4.     I also accept the evidence from Exhibit 2, tab 7, Affidavit of worker Ms. Andrée Willetts and the attached references to Dr. Cowan. Dr. Cowan was not prepared to write a letter for S.B. in support of J. being returned to her care.  I also accept that Dr. Cowan agreed with Dr. Altrows’ diagnosis that S.B. was unwell. In S.B.’s materials she argued that Dr. Cowan was in support of J. being returned to her care. I do not accept this evidence and find that S.B. attempted to mislead the court on this point by ‘cherry picking’ the evidence.

 

5.     I further accept that S.B. went months without engaging with Dr. Cowan and following up as required to do so under her Probation Order.

 

6.     I further accept the evidence of both workers in Ontario and in Nova Scotia that S.B. refused to comply and cooperate with mental health professionals to alleviate mental health concerns. As such, placement with S.B. throughout the CFSA proceedings in Nova Scotia was not an option.

 

While there was some limited evidence by Dr. Cowan, that evidence was provided in her capacity as S.B.’s family doctor. Dr. Cowan was not qualified as an expert on mental health issues, and therefore any of her evidence on this issue must be given very little weight. Furthermore, I find from the evidence S.B. refused to engage with mental health professionals.

 

7.     I also accept from the evidence that because of the unresolved mental health issues for S.B. at the conclusion of the CFSA proceedings, that the risk for the child J. remained if J. were to be placed with S.B.

 

8.     I further find that although the Minister decided to terminate the CFSA proceedings it was only if J. was in J.A.’s primary care.

 

9.     I also accept from the evidence that the position in Ontario with the Children’s Aid Society remains that if J. is returned to S.B.’s care, given the unresolved mental health issues of S.B., it would result in J. being taken into care.

 

10.  Nothing from the evidence in this PSA proceeding satisfies me that the risk to J. because of S.B.’s underlying mental health issues has been addressed by S.B.

 

I also find from the evidence as it relates to the factors under Section 18(6) as referenced earlier, I find as follows, under Section 18(6)(a), J.A. is meeting J.’s physical, emotional, social, and educational needs. While there have been emotional and behavioral issues exhibited by J., I find that J.A. has been addressing these concerns appropriately through individual counselling with Devin Rankin for both him and J., and working and cooperating with CFSA workers and accepting and encouraging J.’s transitioning process.

 

I do not accept that S.B. has done so nor, has she acted in J.’s best interests. This includes a number of concerns:

 

•        Attempting to return J. to Ontario at a time when she knew Children’s Aid Society in both Ontario and Nova Scotia were not supporting J.’s return. The result was that S.B. was detained in Oromocto, New Brunswick and J. was subjected to police involvement.

 

•        S.B.’s lack of insight into the effects of her actions by having J. present when being arrested were inappropriate. Instead S.B. attempted to deflect blame to J.A. being unable to pick up J. at 3 o’clock in the morning in Oromocto when S.B. and J. were detained, all as a result of S.B.’s actions.

 

11.  Furthermore, I accept from the evidence that S.B. has not been supportive of J.’s transitioning process because:

 

•        I accept that she has called the school looking to speak to J. and has referred to J. as S. in doing so.

 

•        I accept that this was awkward and embarrassing for J.

 

•        I also accept from the evidence that it was reported that during visits S.B. continued to provide female clothing to J. and insist that J. try the clothing on. I accept this was emotionally harmful to J. and not in his best interest, and not providing J. with the emotional support he needs.

 

12.  From Exhibit 2, tab 12, the lack of support by S.B. clearly affected J. to the point where he advised the counsellor contained in Devin Rankin’s report he was not prepared to engage with S.B., one on one during therapy sessions.

 

In addition given S.B.’s unaddressed mental health issues, in my view S.B. is not capable in engaging and supporting J. until such times as these mental health issues are addressed.

 

From the evidence I accept there has been a withdrawal by J.A. to engage with S.B. and co-parent. This is not surprising given the history of the parties.

 

13.  I accept from the evidence that J.A. had remained as a safety plan for J. as long as he could. He attempted to co-parent with S.B. as best as possible, however by April of 2020 it was becoming exceedingly difficult for J.A. to do so, given S.B.’s mental health issues.

 

14.  It is extremely unfortunate that the proceedings unfolded across jurisdictions. The fact that J.A. relocated to another province clearly fed S.B.’s misguided views that J. was ‘abducted’.

 

15.  While J. stayed in Nova Scotia beyond the period consented to by S.B., I find from the evidence that J. was clearly not abducted. Rather, J.A. was no longer willing, or able, to act as a safety plan for S.B.

 

16.  All service providers and social workers were of the view, that given the unaddressed risks to J., J. could not return to S.B.’s care, without J.A. being part of that plan.

 

J.A. was encouraged by professionals (and the court) to resolve issues in Ontario. That did not happen. The court provided an opportunity for S.B. to work with agencies in Ontario and Nova Scotia to have concerns addressed and have J. returned to her care.

 

As mentioned at one point I ordered a Supervision Order in favor of S.B.

S.B. however because of lack of insight and refusal to work with agencies was unable to be supervised and, J. was placed with J.A. under a Supervision Order.

 

17.  Throughout these proceedings S.B. continued to attempt unilateral decisions regarding J. From the evidence she did not co-parent with J.A. during both the CFSA proceedings and following termination of those proceedings.

 

Again, I accept that while there were times when she would correspond accordingly via email or text, that the vast majority of times her communication was done in an aggressive, intimidating and demanding fashion. It was done at times in a manic way of all hours of the day and night.

 

Again, given the history of these actions of S.B., it is not surprising that J.A. would withdraw from wanting to have a parental co-parenting relationship with S.B.

 

18.  I find it was the result of the actions of S.B. both consciously and without insight, that have led to the inability to foster, or promote parental communication.

 

19.  At paragraph [107] of this Decision, I have already canvassed as a factor, Section 18(6)(c) of the PSA (the history of care for the child). There was a court Order in place in 2018 granting S.B. primary care however for the reasons already stated, I find that J.A. was involved as a safety plan since April of 2020 and J. has been in his primary care since then, under both the CFSA, and, PSA proceedings.

[121]    Under Section 18(6)(d), I am required to consider both parents’ plan of care.

J.A.’s plan of care:

 

•        J. would continue to be in his care as has been done since August 2020.

 

•        during the CFSA involvement, J.A. has been both open and cooperative with the Minister.

 

•        his plan includes supporting J. in his transitioning process and counselling.

 

•        J.A. has a supportive partner.

 

•        although there were allegations/referrals by S.B. to the Minister about J. in J.A.’s care, these concerns were not substantiated and J.A. fully cooperated with the Minister.

 

 S.B.’s plan of care:

 

•        S.B. has not had J. in her care since the summer of 2020.

 

•        Since then, S.B. has not cooperated with services or service providers and professionals.

 

•        S.B. has relocated and no longer resides in the same area that the parties had been residing prior to both Children’s Aid Society and CFSA proceedings in Ontario. Therefore, regardless of whose care J. is placed, J. will not be returning to the same area in which he grew up.

 

•        I find from the evidence that S.B.’s plan is very vague and lacked much detail, for example:

 

S.B. had reported that she had wished to appear by video conference as opposed to in person between the two hearing dates, because she had started a new job, and was unable to travel to Nova Scotia. On the second day of the hearing, she indicated that job had been postponed so she could deal with court matters, however when pressed further in cross-examination by Mr. Moores, S.B. indicated that she was employed, but had not started the employment phase and was completing on the job training. There were inconsistencies and lack of detail. In another example, S.B. indicated that she was currently residing with her current partner, it was not a permanent home, and that she had plans in the very near future to build another home. Again, it is unclear whether or not the home environment for S.B. is long term or temporary.  J. needs stability, and long-term commitment to get through the emotional and behavioural concerns that he is expressing as well as completing the transitioning process.

 

•        I find from the evidence that S.B.’s plan lacks support and details and lacks stability particularly given S.B.’s unaddressed mental health issues.

 

[122]     I therefore find that J.A.’s plan for J. is a better plan and provides more stability.

[123]    Under Section 18(6)(f), the child views are a factor but not the overriding factor. The paramount consideration is the best interests of the child. Here the court has the benefit of the Guardian Ad Litem Report referred to in Exhibit 2.

[124]    In his reports, and in cross-examination, the Guardian Ad Litem, Mr. Bate, was clear that J.’s preference was to remain residing in Nova Scotia with his father. The Guardian Ad Litem acknowledged that there were times when J. would express a contrary view, however the Guardian Ad Litem indicated those were infrequent and done when J. was angry with his father.

[125]    The Affidavits of workers in the CFSA materials also referenced, that during some access visits when J. would become upset with his father, or when he was promised certain items from S.B., he would express an interest to live with his mother. Again, however this was not the norm and done infrequently.

[126]    I am satisfied from the evidence of the Guardian Ad Litem, and the evidence as a hole, that on a balance of probabilities that J.’s wishes are to remain with his father.

Exhibit 6: USB drive with Video Clips-Child Hearsay

[127]    I must also consider the evidence that was provided by S.B. as it relates to the child’s wishes that was contained in Exhibit 6: USB drive with video clips.

[128]    I have reviewed and considered those video clips, which were comprised of three video clips less than 10 seconds in duration.

•        Clip 1 was a video of an interaction between S.B. and J. where S.B. asks J. to state “Where do you want to live and who do you want live with?”. And J. responds “With you. S.B.”. And then the video clip ends.

 

•        Clip 2 is again a video clip of interaction between S.B. and J. where S.B. asks J. “How many times have you talked to Harvey Bate?”. J. responds “Two times.” S.B. then asks “Do you text with Mr. Bate?”. J. responds “No I can’t.” S.B. then asks “Do you email him?” and J.’s response is “Ah no.”, then S.B. says “And.” Then the clip finishes.

 

•        Clip 3 is a clip where J.A. is recorded asking J. if he wants to take a call from his mother. The response of J., or what sounds like J.’s voice although he doesn’t appear on the video replies “No go away. Go away. Ah.” Then the clip ends.

[129]    Initially counsel for J.A. objected to the admissibility of the three clips, therefore the court as mentioned directed that the videos would be subject to a voir dire.

[130]    At the hearing J.A. through counsel indicated that he would not continue to object to the admissibility of the clips on the basis that they would not challenge the threshold of necessity and reliability, but took the position that the court should give the video clips little to no weight because they were unreliable. Therefore, they were by consent admitted and viewed.

Analysis of Evidence Concerning Child Hearsay Statements and J.’s Wishes

[131]    In my view the three videos are problematic in a number of respects:

1.     Child hearsay is presumably inadmissible.

 

2.     While child hearsay can be admitted in certain circumstances, to do so requires certain guarantees of necessity and reliability as well as guarantees procedurally of trustworthiness of the evidence (See: R. v. Khan, R. v. Khelawon, R. v. Bradshaw). I find as follows:

 

•        As mentioned, each clip was less than 10 seconds in duration.

 

•        There is no information establishing the date and time that these events were recorded.

 

•        The ‘evidence’ of J.’s statements were not under oath.

 

•        There is no evidence that J. was consenting to or was made aware that what was being said was being recorded.

 

•        There is no way to determine whether or not J.’s statements were in the beginning, middle or end of the conversation between he and his mother.

 

•        Finally, the person making the recording and asking the questions is J.’s mother, a party to these proceedings, and not an independent or neutral third party.

[132]    Therefore, while counsel for J.A. conceded the threshold reliability, given the frailties of the evidence and the manner in which it was created, in my view makes the evidence ultimately unreliable.

[133]    Furthermore, in contrast the views expressed to the Guardian Ad Litem, which were provided to a neutral third party, who was under a duty to record, are, therefore in my view reliable.

Further Consideration of Factors Under Section 18(6) of the PSA and Findings of Credibility

[134]    I find on a balance of probabilities J.’s wishes are to remain with his father in Nova Scotia.

[135]    Under Section 18(6)(i), as already stated, I accept from the evidence J.A. is unwillingly and unable to communicate with S.B. I do not accept S.B.’s position that the parties are able to co-parent given the current high conflict.  I find from the evidence, that if J. were placed in S.B.’s care, there would be no ability for J.A. to exercise parenting time, or decision-making, and I am not satisfied that S.B. is able or capable at the present time to make current parental decisions.

[136]    Under Section 18(6)(j)(i), while there has been a history of domestic violence between J.A. and S.B., I find there has not been any evidence of such between J.A. and his current spouse.

Credibility of J.A.’s Evidence

[137]    J.A. has completed all services required by the Minister.

[138]    Where the evidence of J.A. and S.B. differs, I accept the evidence of J.A.

[139]    I find the evidence of S.B. and her witnesses to be not credible.

[140]    The evidence of J.A. and his partner, P.A., that they are meeting J.’s needs is credible.

[141]    I accept their explanation of the series of events leading to J.’s behavioral issues, and hospitalization. That it was the actions of S.B. and unrealistic expectations for J. that led to J.’s difficulties.

[142]    I accept that J.A. dealt appropriately in meeting J.’s medical needs, as well as supporting J.’s emotional needs, and physical needs. I accept this was the case, both during the CFSA proceedings, and throughout the PSA proceeding.

[143]    The evidence of support and appropriate care of J. throughout the CFSA proceedings was confirmed by the Minister’s evidence in the CFSA proceedings, and his level of cooperation with the Minster.

[144]    I also accept the evidence of his partner, P.A., on this point.

[145]    In contrast I do not accept the evidence of S.B. and her witnesses. Each witness will be identified individually.

Evidence of Joseph Ducharme

[146]    Mr. Ducharme’s evidence is contained in Exhibit 3, tab 9.

[147]    Mr. Ducharme was by consent cross-examined via telephone.

[148]    In his Affidavit Mr. Ducharme testified that he was giving evidence to matters that he had personal knowledge of.

[149]    From cross-examination however, it was clear that almost the entirety of his Affidavit was based upon information provided by S.B.

[150]    For example, when asked about his statement in his Affidavit that he had witnessed J.A. punch S.B. while driving, he conceded that conclusion was based upon what he was told by S.B., and not what he observed personally.

[151]    Similarly, Mr. Ducharme asserted that J.A. had broken S.B.’s nose by headbutting her. Again, on cross-examination he conceded that while he observed those injuries, he was not present when they occurred and was relying on statements by S.B.

[152]    While Mr. Ducharme testified to witnessing firsthand other instances of domestic violence between the parties, that evidence was very vague, lacked detail, and I find it to be unreliable.

[153]    Similarly at paragraphs 20, 21 and 22 of his Affidavit Mr. Ducharme made certain assumptions, and conclusions about J. based on information provided by S.B. This information was not correct.

[154]    Finally, although testifying by phone, and the court being unable to view his testimony, during his evidence Mr. Ducharme used a number of expletives requiring the court to remind him that he was giving evidence in a court proceeding.

Evidence of Joseph Normile

[155]    Mr. Normile’s Affidavit is contained in Exhibit 3, tab 7 and was sworn June 15, 2022.

[156]    Mr. Normile was cross-examined via telephone.

[157]    Mr. Normile in his Affidavit began at paragraph one amongst other statements said that he was testifying as to the “constructive abduction” of S.[J.].

[158]    Mr. Normile also urged the court not to view S.B.’s “quirky traits” as a mental disorder. Mr. Normile in his Affidavit went on to state that S.B. had PTSD as a result of J.A.’s actions.

[159]    Mr. Normile’s Affidavit stated that he had reviewed the evaluations of Dr. Reshetukha regarding S.B.’s mental health but did not reference Dr. Altrows’ evaluation.

[160]    Mr. Normile, like Mr. Ducharme, also stated in his Affidavit and in cross-examination that he had read all of the CFSA materials and police reports.

[161]    Mr. Normile also had very specific knowledge contained in his Affidavit; for example, about the type of brain tumour S.B.’s biological father succumbed to in very specific detail.

[162]    Mr. Normile also gave detailed evidence about an injury that S.B. says was perpetrated upon her by J.A. Mr. Ducharme described the injury in the Affidavit as “skier’s fracture to her right palm/thumb”.

[163]    Mr. Normile confirmed also purchasing a dress for J. (S. as he referred to her) during the March break. This was at a time when J. was transitioning. From the Affidavit it appears that Mr. Normile had no insight into this fact when he and S.B. purchased the dress for J. and had him try it on. 

[164]    In cross-examination by Mr. Moores, Mr. Moores questioned Mr. Normile referring to himself in his Affidavit as an “outstanding citizen” and “a pillar in the community”.

[165]    In response Mr. Normile seemed unclear as to what that meant. When Mr. Moores suggested that S.B. had prepared the Affidavit and all the words contained in it were not his but those of S.B., Mr. Normile denied that assertion.

[166]    I however agree with Mr. Moores.

[167]     As already stated much of his Affidavit contained detailed evidence readily available to S.B. In addition, like the evidence of Mr. Ducharme, I also find the conclusions were based upon what was told to Mr. Normile by S.B. and was what she wanted to hear.

[168]    Another example is when Mr. Normile mentioned S.B.’s mental health. Mr. Normile concluded that it was all J.A.’s fault and did not reference Dr. Altrows’ evaluation. And did not state for instance whether:

•        He agreed or disagreed.

 

•        Observed any of those concerns.

 

•        Discussed this issue with S.B.

 

•        Whether or not any steps or strategies were developed to overcome the concerns of Dr. Altrows.

[169]    I find therefore that it was S.B. who wrote the Affidavit and that Mr. Normile did not have personal knowledge of matter for which he testified, and that his evidence is not credible.

[170]    I also note that at times Mr. Normile attempted to bolster S.B.’s evidence, for example suggesting that Children’s Aid Society in Ontario had closed the file on S.B. because there continued to be no concerns if J. were in her care.

[171]    At paragraph 18 of Mr. Normile’s Affidavit, Mr. Normile attached a letter (Exhibit 1) summarizing a meeting between S.B. and workers in Ontario for which he indicated he was present.

[172]    It was his suggestion from the evidence and the Exhibits and from the meeting and materials contained in Exhibit 1, that there would be no concerns of the Minister if J. returned to S.B.’s care.

[173]    I do not find this evidence to be credible for a number of reasons:

 1. The evidence of the worker was hearsay as the worker did not testify in these proceedings.

2. From Exhibit 3, tab 7, Exhibit I, the discussion that took place and summarized in the letter were in relation to proposed access by S.B. under the Interim PSA Order here in Nova Scotia, and not premised on S.B. having primary care.

3. The other underlying premise is that S.B. would be subject to an assessment by the Minister. Implicit in that is:

a) the Minister in Ontario had previously determined that it was not supporting J.’s return and therefore it is implicit if that was to change it would require reassessment.

b) It presupposes that S.B. would cooperate with Ontario workers which did not previously occur, as already stated on a number of occasions S.B. denied workers entry into the home and refused to cooperate in working with social workers in Ontario.

[174]    I therefore find that neither Mr. Normile’s nor S.B.’s evidence was credible on this point.

[175]    Overall, I find Mr. Normile’s evidence to be not credible.

Evidence of Kimberly Stacey

[176]    Ms. Stacey’s Affidavit was contained in Exhibit 3, tab 8 of S.B.’s Exhibit book.

[177]    Mr. Moores, counsel for J.A., chose not to cross-examine Ms. Stacey but indicated that her evidence should be given very little weight.

[178]    I make the following observations regarding Ms. Stacey’s evidence:

•        It was in the same format as Mr. Ducharme’s and Mr. Normile’s.

•        It included specific details in respect to S.B.’s father’s cancer diagnosis as did Mr. Normile’s. Ms. Stacey’s evidence also included additional details describing S.B.’s father as S.B.’s “best friend”.

•        Again much of the evidence was based not on personal knowledge but what was told to Ms. Stacey by S.B. For example, the Affidavit reported that S.B. read to S.[J.] every night. Ms. Stacey was not present every night and therefore it was a fact told to her by S.B.

•        Ms. Stacey’s Affidavit also used the word “abducted”.

[179]    I find Ms. Stacey’s evidence should be given very little weight and where it differs from J.A.’s, I accept his evidence.

[180]    I note that none of the witnesses who testified on behalf of S.B., confirmed S.B.’s living arrangements.

[181]    I find this significant in particular as it relates to Mr. Normile who S.B. says:

•        is her current partner and

 

•        did not confirm any of the present living or working arrangements for S.B.

[182]    The court therefore has no evidence on this point other than the assertions by S.B., none of which were corroborated in supporting S.B.’s plan.

Evidence of S.B.

[183]    I find that S.B.’s evidence was not credible for a number of reasons.

1. It was not consistent with the evidence of all other witnesses except for   her own witnesses which I have found to be not credible.

2. I reject her evidence that she has no underlying mental health issues. I reject that she has addressed mental health concerns and I find that given that she still poses a risk to J.

3. Neither S.B. nor any of her witnesses addressed J. as J. All referred to J. as S. even though they were aware of J.’s wishes. In addition, S.B. and Mr. Normile not only in these proceedings but in the CFSA proceedings when meeting with J. during the March break continued to refer to J. in person and via Skype or Facetime as S. This is in contrast to J.A. and his partner who have accepted J.’s transition.

4. I do not accept S.B.’s evidence that she is able to coparent with J.A.

5. Normally demeanour evidence should be given very little weight. Here, however the court cannot ignore S.B.’s behaviour during these proceedings. On a number of occasions she would continue to talk over lawyers, over witnesses, and even over me during pre-trial conferences. On many occasions she would raise her voice, yell, or make vitriolic comments. Given this behavior in the courtroom setting, I find that S.B. would be unable to interact with J.A. outside of the courtroom setting to make parental decisions. The tone of her emails to other participants in these proceedings such as workers are contained in Exhibit 3, tab 6- Affidavit of S.B. sworn in June 2022 which sets out S.B. threatening legal action against workers, the lawyer for the Minister, the Guardian Ad Litem, which threats included criminal charges. In addition, S.B. said she was “firing” Ms. McIver as her worker.

6. I do not accept S.B.’s evidence that she is willing to work with workers in the past or the future in Ontario, and this is not a CFSA proceeding in any event, and I find that she has no ability to work with J.A.

7. I find from the evidence that S.B. will not comply with any court Order. She also will not comply with any schedule for parenting time as set out by the court. This has been demonstrated in the past, when for example as already stated S.B. has taken J. out of Nova Scotia, and has spoken with J. outside of agreed parenting times while J. was in J.A.’s care. In addition, S.B. has placed J. in the middle by not taking any responsibility for J. being in J.A.s’ care. She has little insight into her own actions.

8. I am concerned given S.B.’s actions and unaddressed mental health issues that she will continue to pressure J. during parenting time outside of what was agreed and give unrealistic expectations for J.’s return to her care. I am also very concerned about the negative effects that this pressure has on J., as he has already demonstrated through behavioral issues and hospitalization largely because of pressure put upon J. by S.B.

9. I do not accept S.B.’s evidence regarding employment and living arrangements and therefore I am not confident that S.B. is in a stable situation and J. needs stability at the present time.

[184]    Given these issues I find S.B.’s evidence is not credible and I am not satisfied that she is in a stable situation without corroborating evidence.

[185]    In contrast, S.B. has not engaged in services and the manner in which she has continued to interact with J.A. has been very aggressive and intimidating towards him, including threats of having J.A. charged on several occasions with abduction and other threats.

[186]    S.B. was also very threatening in the past as recorded in Exhibit 2 (Agency Production Materials) with J. himself and with workers, police officers even some Department of Justice officials from the Minister of Community Services office. I note as well that in determining and making the findings that I have, I do not accept the witnesses of S.B. Their evidence was in my view coached and was evidence that was provided to them by S.B. as opposed to evidence of things they had witnessed themselves.

[187]    Therefore, given all the factors and evidence I find that it is in J.’s best interests to remain in the primary day-to-day care of J.A.

Parenting Time

[188]    The next issue I must decide is what is the appropriate parenting time for S.B. and what parenting time is in J.’s best interests.

[189]    As stated, the overarching principle the court must consider is J.’s best interests.

[190]    As part of that principle, parenting time is the right of the child and not the parent. As stated by the Supreme Court of Canada, paragraph 27 in King v. Low, [1985] 1 S.C.R. 87 the court stated as follows:

27        This conclusion is consistent with modern authority in this Court and others: see Racine, Beson, and Re Moores and Feldstein. I would therefore hold that in the case at bar the dominant consideration to which all other considerations must remain subordinate must be the welfare of the child. This is not to say that the question of custody will be determined by weighing the economic circumstances of the contending parties. The matter will not be determined solely on the basis of the physical comfort and material advantages that may be available in the home of one contender or the other. The welfare of the child must be decided on a consideration of these and all other relevant factors, including the general psychological, spiritual and emotional welfare of the child. It must be the aim of the Court, when resolving disputes between rival claimants for the custody of a child, to choose the course which will best provide for the healthy growth, development and education of the child so that he will be equipped to face the problems of life as a mature adult. Parental claims must not be lightly set aside, and they are entitled to serious consideration in reaching any conclusion. Where it is clear that the welfare of the child requires it, however, they must be set aside.

[191]    Therefore despite S.B.’s overwhelming desire to see J., it is crucial that any parenting time between S.B. and J. be healthy, productive and be beneficial to J., and not cause any additional harm to J.

[192]    In Doncaster v. Field, 2014 NSCA 39, our Court of Appeal set out the following comments contained in paragraphs 51 to 55 and 63 to 68:

[51]        The appellant argues that, the judge not having made any finding that access would create a substantial risk of harm to the children, she had no justification for denying him any contact or access.  He emphasizes that her Order did not allow access under supervision or with restrictions; rather, the prohibition against communication and contact was complete. 

[52]        I begin with s. 16 of the Divorce Act which authorizes a court to make orders respecting the custody of, or the access to, any and all children of a marriage.  It reads in part:

Factor

      (8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

Past conduct

      (9)  In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

Maximum contact

      (10)  In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.    

[53]        To a large extent, custody and access decisions are fact-based and discretionary.  A trial judge has the enormous advantage of observing, hearing and assessing the parties and witnesses first hand.  She or he must consider the unique circumstances of the particular child or children involved and the factors, both positive and negative, which can affect them.  This Court does not retry the case.  It will not interfere with custody and access decisions unless there is material error, a serious misapprehension of the evidence or an error in law.

[54]        In Young v. Young, [1993] 4 S.C.R. 3, the Supreme Court of Canada considered what the “best interests of the child” test in s. 16(8) of the Divorce Act requires.  McLachlin, J. (as she then was) wrote at pp.116-118:  

      Parliament has adopted the “best interests of the child” test as the basis upon which custody and access disputes are to be resolved.  Three aspects of the way Parliament has done this merit comment.

      First, the “best interests of the child” test is the only test.  The express wording of s. 16(8) of the Divorce Act requires the court to look only at the best interests of the child in making orders of custody and access.  This means that parental preferences and “rights” play no role.

      Second, the test is broad.  Parliament has recognized that the variety of circumstances which may arise in disputes over custody and access is so diverse that predetermined rules, designed to resolve certain types of disputes in advance, may not be useful.  Rather, it has been left to the judge to decide what is in the “best interests of the child”, by reference to the “condition, means, needs and other circumstances” of the child.  Nevertheless, the judicial task is not one of pure discretion.  By embodying the “best interests” test in legislation and by setting out general factors to be considered, Parliament has established a legal test, albeit a flexible one.  Like all legal tests, it is to be applied according to the evidence in the case viewed objectively.  There is no room for the judge’s personal predilections and prejudices.  The judge’s duty is to apply the law.  He or she must not do what he or she wants to do but what he or she ought to do.

      Third, s. 16(10) provides that in making an order, the court shall give effect “to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child.”  This is significant.  It stands as the only specific factor which Parliament has seen fit to single out as being something which the judge must consider.  By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized.  The modifying phrase “as is consistent with the best interests of the child” means that the goal of maximum contact of each parent with the child is not absolute.  To the extent that contact conflicts with the bests interests of the child, it may be restricted.  But only to that extent.  ...

...

      I would summarize the effect of the provisions of the Divorce Act on matters of access as follows.  The ultimate test in all cases is the best interests of the child.  This is a positive test, encompassing a wide variety of factors.  One of the factors which the judge seeking to determine what is in the best interests of the child must have regard to is the desirability of maximizing contact between the child and each parent.  But in the final analysis, decisions on access must reflect what is in the best interests of the child.  [McLachlin, J.’s underlining]

[55]        Courts are hesitant to totally deny access to the non-custodial parent.  As has been explained, contact between a child and each parent is seen as desirable.  The significance of the maximum contact principle embedded in s. 16(10) is apparent:  it is the single factor a judge must consider in deciding custody and access.  A complete denial of access has been ordered only infrequently, where the behaviours of the parent seeking access were extreme, access would place the child at risk of emotional or physical harm, or access was otherwise not in the best interests of the child.  Each case is unique and driven by its specific facts.

            ...

[63]        In these circumstances, I cannot say that the judge erred in law by failing to take into account the requirements of the maximum contact principle.  Rather, the record shows that she was well aware of s. 16(10) and strove to find a way to start normalizing relations between the children and their father.

[64]        The appellant then argues that, unless the judge had found that access would create a “substantial risk of harm”, there was no justification for denying him any access. 

[65]        Certainly, the risk of harm is one of the factors to be considered in deciding custody and access.  However, it is not determinative.  In Young, McLachlin, J. (as she then was) stated at p. 120:

      ... The judge must consider all factors relevant to determining what is in the child's best interests; a factor which must be considered in all cases is Parliament's view that contact with each parent is to be maximized to the extent that this is compatible with the best interests of the child.  The risk of harm to the child, while not the ultimate legal test, may also be a factor to be considered.  This is particularly so where the issue is the quality of access — what the access parent may say or do with the child.  In such cases, it will generally be relevant to consider whether the conduct in question poses a risk of harm to the child which outweighs the benefits of a free and open relationship which permits the child to know the access parent as he or she is.  It goes without saying that, as for any other legal test, the judge, in determining what is in the best interests of the child, must act not on his or her personal views, but on the evidence.    

                                                                                           [Emphasis added]

[66]        As this passage indicates, while reducing a child’s risk of harm should be beneficial, “the best interests of the child” concept is broader.  It requires a more fulsome assessment than simply assessing whether there is any risk of harm and, if so, how great or small it may be.

[67]        In this case, the judge found at ¶ 129 of her decision that the appellant has unintentionally caused his children harm.  In describing that harm, she did not use the adjective “substantial” or similar wording.  In my view, it was not essential that she do so in order to deny access.

[68]        The cases I described where access was completely prohibited would imply that those courts found a significant risk of harm.  They often featured threats or acts of intentional violence.  However, the courts have not relied on a finding of “substantial risk of harm” to ground their decisions.  That phrase is often not explicit in the decisions.  Even the word “harm” does not always appear.  Rather, each judge examined all the circumstances of the particular case, and ultimately determined that access was not in the best interests of the child.

[193]    Additional guidance is also found in J.T. v. M.W., 2017 NSSC 118, where Justice Forgeron in deciding that in-person access would be suspended for three children with PTSD, but also deciding access would continue for one other child; Justice Forgeron summarized succinctly the principles in dealing with this issue, in paragraph 16 of her decision:

          [16] …

•         The burden of proof lies with the party who alleges that access should be denied or restricted, although proof of harm need not be shown. Proof of harm is but one factor to consider in the best interests test.

•          The right of the child to know and to be exposed to the influence of each parent is subordinate in principle to the child's best interests.

•         The best interests test is a positive and flexible legal test which encompasses a wide variety of factors, including the desirability of maximizing contact between the child and each parent, provided such contact is in the child’s best interests.

•         The court must be slow to extinguish or restrict access. Examples where courts have extinguished access include cases where access would place the child at risk of physical or emotional harm, or where access was found to be contrary to the child’s best interests.

•          An order for supervised access is seldom seen as an indefinite or long term solution.

•         Access is the right of the child; it is not the right of a parent.

•         There are no cookie-cutter solutions. Courts must examine the unique needs of each child and craft an order that protects and enhances that child’s best interests. 

[194]    Here there are a number of concerns that should be considered in my decision for parenting time for S.B.

•        S.B.’s continued unaddressed mental health issues.

•        S.B.’s unwillingness to accept J.’s transition of gender.

•        S.B.’s interaction with J.A., ignoring input on decisions and threatening J.A. if concessions are not made.

•        Attempts by S.B. to put J. in the middle of parenting and decision-making by recording J.

•        From Exhibit 2 (Agency Production Materials) past inappropriate discipline of J. by screaming, yelling and striking J.

•      This is of concern given J.’s current emotional, behavioral and transitional concerns combined with

•      The unknowns of S.B.’s current mental health issues.

•      The fact that J. has expressed to the Guardian Ad Litem that he does not wish to deal with his mother one on one in counselling sessions.

•        Although S.B. has self reported that she is employed and has adequate housing there is no tangible evidence before this court that her position is stable. While in her evidence, at Exhibit 4, tab 1, she did include a document identified as a ‘Vulnerable Sector Check’ for employment, that document is not proof of employment. It is dated October 31, 2022, and there is no other documented evidence of employment other than her vive voce evidence at trial. That evidence was very vague and lacked detail. For example, whether she would be working from home, out of an office, or travelling. She also did not set out what hours she would be working. As stated, J. needs stability. In the absence of evidence supporting S.B.’s assertion, I find there is not credible evidence relating to the stability of her home environment, and therefore her plan is not in J.’s best interests. Also, given the distances between Ontario and Nova Scotia and these unknowns, parenting time in Ontario is not in J.’s best interests.    

[195]    For these reasons, in my view to grant further parenting time, unsupervised for J. in Ontario would risk further harm to J.

[196]    In D.S. v. R.T.S., 2017 NSSC 155, the father sought unsupervised access to the children. The children had witnessed domestic violence between their father and his new partner. In her decision to not permit the father unsupervised access, the trial Judge said as follows:

•         Although the father participated in anger management courses and counselling, he continues to lack insight. Insight is often required to make permanent lifestyle changes.           

…

•         The father has a short fuse. He is reactive and impulsive. As an example, at the conclusion of his oral submissions in May 2017, and after assuring the court that he had changed, the father called the mother an “idiot” and the court process “pathetic” and “a joke”. This type of impulsive reaction is typical of the father. I infer that if he is unable to act with restraint during a court hearing, his vitriol and abuse will be considerably worse when there is no authority monitoring his actions and conduct.

•         The father lashes out and blames the mother when he does not get his own way, or when he seeks to assert dominance and control. His apologies ring hollow given his repetitive conduct.

[197]    Here S.B., both in emails and text messages, has belittled and intimidated J.A. and his current partner.

[198]    S.B. has during these court proceedings in the courtroom, not only belittled J.A. but has also referred to his counsel as being incompetent.

[199]    S.B. has shown no impulse control, arguing with witnesses and lawyers which was ongoing during both the hearing and at other previous court appearances to the point where court intervention was required.

[200]    S.B. has been conflictual with workers, service providers and has had a breakdown of the solicitor/client relationship with two previous lawyers and was also rejected from further legal aid counsel based on merit and willingness to cooperate with counsel (see Exhibit 3, tab 6 - Affidavit of S.B., June 30, 2022, Exhibit E - letter from Stephanie Hillson, managing lawyer Amherst Legal Aid dated May 19, 2022.)

[201]    Therefore, in my view at this stage ordering parenting time supervised would also be problematic given all of the above.

[202]    I also have no confidence that S.B. will follow any supervised schedule set by the court given her intimidation of J.A., her calling and texting J. outside the times as agreed both during the CFSA proceedings and during these proceedings, as well as subjecting J. to witnessing the arrest which took place in Oromocto, New Brunswick.

[203]    Also as mentioned J. has clearly stated he does not want to have one on one time with S.B.

[204]    Therefore, in my view the Supervised Access and Exchange Program would not be appropriate for these reasons and the distances involved, nor is Facetime appropriate because of S.B.’s inability to follow a schedule.

Conclusion

[205]    I therefore have reluctantly come to the conclusion that until these concerns are addressed, there shall be no parenting time for S.B. for a minimum of six months and S.B. will not be permitted to make any application to the court seeking parenting time.

J. requires this time to emotionally heal, free from the pressure and emotional harm caused by S.B.’s actions. This is what is in J.’s best interests.

Prior to any Application to Vary by S.B. she must provide proof of having undergone a psychiatric or psychological evaluation relating to her ability to parent and demonstrate that she has followed through on any recommendations from psychologists or psychiatrists.

[206]    As well I am directing that S.B. must enroll in and provide proof of counselling for gender transitioning and supporting children in the process of transitioning.

[207]    Any application by S.B. will be an Application to Vary and not a review which will require showing of a material change in circumstances, that must also include an update as to S.B.’s current circumstances such as housing and employment.

[208]    To summarize the Order of the court is that primary day-to- day care of J. will be with J.A. He will be responsible for all day-to-day decision-making for the child and S.B.’s parenting time is suspended for a period of six months from the date of this Order. I will also include the following provisions from the previous Order with respect to residence of the child. Those provisions are the child will reside, and the residence of the child will be in the province of Nova Scotia, unless otherwise ordered by the court. The child is not to be removed from the province of Nova Scotia without the written consent of both parties. J.A. is not to change his residence without 90 days’ notice to S.B. No application shall be brought to the court within six months from the date of the Order and that prior to any application being filed S.B. must provide proof of the reports as I have mentioned. Also proof of psychiatric and psychological assessments as well as attending transition counselling. The provisions from the previous court Order regarding enforcement, will also be included in this Order. The Order will be drafted and delivered with the decision.

 

 

                                                                              Gregan, J.