FAMILY COURT OF NOVA SCOTIA
Citation: Nova Scotia (Community Services) v. D.B., 2016 NSFC 4
Date: 20160212
Docket: FNGCFSA-091684
Registry: Pictou
Between: Minister of Community Services
Applicant
-and-
DB and CB
Respondents
-and-
AB and KB by their Guardian ad Litem, Sonya Paris
Third Parties
-and-
CNB and LM
Third Parties
Restriction on Publication: Pursuant to Section 94(1)
of the Children and Family Services Act
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Judge: |
The Honourable Associate Chief Judge S. Raymond Morse |
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Heard: |
July 7, 9, 10, 17, 21, 23, 24, October 20, 22, 23, 2015 in Pictou, Nova Scotia
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Written Decision: |
February 12, 2016 |
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Counsel: |
Patricia McFadgen, for the Applicant Jennifer Reid, for the Respondent, DB Rob Sutherland, for the Respondent, CB Raymond Kuszelewski, for the Third Parties Tammy MacKenzie, for the Guardian ad Litem
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TO PUBLISHERS AND OTHER READERS OF THIS CASE:
PLEASE TAKE NOTE THAT SECTION 94(1) OF THE CHILDREN AND
FAMILY SERVICES ACT APPLIES AND MAY REQUIRE EDITING OF THIS JUDGMENT OR ITS HEADINGS BEFORE PUBLICATION.
SECTION 94(1) PROVIDES:
94(1) No person 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.
By the Court:
Introduction
[1] The Respondents DB and CB (also referred to herein as Mr. and Mrs. B) are the adoptive parents of AB (DOB January *, 1999), KB (DOB August *, 2001), BB (DOB August *, 2007) and GB (DOB October *, 2008).
[2] The children were the subject of prior protection proceedings involving their biological parents which resulted in orders for permanent care and custody. Only two of the children, KB and BB, are biological siblings. The children were initially placed with the Respondents as foster parents and subsequently adopted by the Respondents.
[3] It is unfortunate and disturbing that these children have experienced so much trauma and turmoil in their lives. Their adoption by the Respondents was obviously intended to afford the children the opportunity to be members of a loving family, in a safe and secure home environment. This is a fundamental premise of the adoption system currently utilized in Nova Scotia, when a child is placed in the permanent care and custody of the Minister and the long term plan is premised upon adoption placement.
[4] The Minister maintains that the children are in need of protective services due to the Respondents’ use of inappropriate discipline. The Minister’s case relies heavily on the out-of-court statements made by the children. The Respondents have consistently denied the children’s allegations and maintain that they did not use physical discipline other than infrequent spanking of the two youngest children, utilized, according to the children’s mother DB, as a last resort.
[5] It is the two younger children who are currently the focus of this proceeding. The Minister and the Respondents were able to reach agreement on a consent disposition in relation to the two older children at the outset of trial.
[6] The Third Party CNB is the Respondents’ biological son. The Third Party LM is his spouse. The Third Parties are supportive of the Respondents’ request that the two children, BB and GB, be returned to their care. However, in the event the court determines that cannot happen, the Third Parties request that the two children be placed in their day-to-day care.
[7] I want to make it clear at the outset of this decision that the paramount consideration in this case is the best interests of the children. The focus of this case is not the religious beliefs or practices of the Respondents. Accordingly, the court has adopted a child-centric approach to determination of this matter.
Proceedings
[8] Pursuant to protection application and notice of hearing dated June 25, 2014 the Minister maintained that the children AB (DOB January *, 1999), KB (DOB August *, 2001), BB (DOB August *, 2007) and GB (DOB October *, 2008) were in need of protective services pursuant to section 22(2), subparagraphs (b), (g) and (ja).
[9] The initial interim or 5-day hearing was held June 26, 2014 before His Honour Associate Chief Justice Wilson. During the course of that hearing His Honour identified conflict concerns which precluded him from continuing to deal with the matter. At the conclusion of that hearing Judge Wilson made the necessary finding and granted an interim order as requested by the Minister placing the three younger children in the temporary care and custody of the Minister and confirming a supervisory order in relation to the oldest child AB.
[10] The interim hearing was completed on July 17, 2014. The hearing proceeded on an uncontested basis subject to a reservation of rights in favour of the Respondents. At the conclusion of that hearing the court made the necessary findings and extended the existing temporary care and custody order in relation to the three younger children and approved a continuation of the supervisory order for the oldest child.
[11] A combined prehearing/protection hearing, held on September 2, 2014 proceeded on a consent basis. The protection finding was made subject to a reservation of rights in favour of the respondent parents. The court granted the Minister’s request for the appointment of Sonya Paris as Guardian ad Litem for AB and KB, the two older children. The matter was then scheduled for combined pretrial and disposition hearing as well as a contested placement hearing.
[12] On November 17, 2014 counsel for the Minister filed the Minister’s application for disposition order and notice of hearing, dated November 17, as well as the agency’s plan for the children’s care dated November 13. The application confirmed a request for orders for permanent care and custody in relation to the three younger children and a request for dismissal of the protection proceeding in relation to the oldest child AB in favour of an order pursuant to the Maintenance and Custody Act, which would place AB in the care and custody of AP (AB’s adoptive adult sister) and her husband, MP.
[13] A telephone pretrial conference was held November 17. It was agreed by counsel that in light of the Minister’s disposition application it would no longer be appropriate to proceed with a contested interim placement hearing on November 20 and that the November 20 appearance would now serve as the commencement of a contested disposition hearing. It was agreed that the November 20 hearing would also constitute a further pretrial at which additional dates would be assigned.
[14] On November 20 the court confirmed at the outset that the court was now proceeding with hearing of the Minister’s disposition application and noted that the contested hearing was being commenced in light of the fact that the outside date for completion of disposition hearing, pursuant to section 41, was December 2, 2014. The court confirmed dates for continuation of the disposition hearing on February 6, 17, 19 and 20 as well as March 3, 5, 6, 17, 19 and 20. The hearing of the disposition application then commenced with the filing of an initial exhibit, the Minister’s plan of care. The hearing was then adjourned by consent for continuation on February 6, 2015. The court confirmed an extension of the existing order for temporary care and custody for the three younger children, as well as the supervisory order in relation to AB, by way of interim disposition order.
[15] On December 16, 2014 an application and summons was filed on behalf of SV, the biological parent of KB and BB, applying for party status and standing in the protection proceeding pursuant to section 36.
[16] Subsequently, a separate application was filed on behalf of AP and MP pursuant to the Maintenance and Custody Act with respect to the oldest child AB, requesting leave, and if granted leave, an order for custody under the Maintenance and Custody Act. The application was dated January 16, 2015. In addition MP filed a separate application requesting party status in the protection proceeding.
[17] CNB (the Respondents’ biological son), and his spouse LM, also filed applications requesting party status in the protection proceeding pursuant to section 36 of the Children and Family Services Act. Both applications were filed January 7, 2015.
[18] On January 21, 2015, DB submitted a letter to the court indicating that she would not be ready for trial because she no longer had legal counsel. Her letter confirmed a request that the dates for trial be rescheduled in order to allow her time to retain counsel.
[19] A pretrial was arranged for January 29. At the outset of the pretrial the court granted leave for DB’s original counsel to withdraw. The court acknowledged that the existing trial dates could no longer be maintained and that it would be appropriate to adjourn the matter in order to allow DB the opportunity to retain new counsel. The court acknowledged the application for party status as filed by SV and the similar applications filed by CNB and LM. The court scheduled SV’s application for hearing on March 17, 2015. The applications by CNB and LM were scheduled to be heard on March 19, 2015. In assigning these dates the court acknowledged that the dates were being tentatively set without knowing the availability of DB’s new counsel. The court was advised that MP was withdrawing his section 36 application but that the Maintenance and Custody Act application as filed by MP and AP, respecting the oldest child AB, would remain.
[20] The dates assigned for hearing of the section 36 applications subsequently had to be changed to accommodate DB’s new counsel’s availability. SV’s application was rescheduled for April 24 and CNB and LM’s applications were rescheduled for May 1.
[21] A further prehearing was held March 17, 2015. The court confirmed filing deadlines with respect to the section 36 applications. In addition the court confirmed that the case would now proceed to trial on July 7 and continue on July 9, 10, 16, 17, 21, 23 and 24, 2015. At time of the prehearing, with the consent of counsel for the Respondents, the court granted the Minister’s request for a disposition order pursuant to section 41 placing the three younger children in the temporary care and custody of the Minister and confirmed a Third Party supervisory order in favour of AP and MP in relation to the oldest child AB.
[22] On April 2, 2015 an application for standing was filed on behalf of SB (the Respondents’ biological daughter). The application was scheduled for initial appearance on April 24, 2015.
[23] Prior to the commencement of SV’s application on April 24 the court dealt with the application by SB and confirmed that her section 36 application would be heard May 19. The court then proceeded with the hearing of SV’s application. At the conclusion of the hearing the court reserved decision and advised that an oral decision would be provided on May 11, prior to the scheduled hearing of the section 36 applications on behalf of CNB and LM.
[24] On April 29 counsel for the Minister advised the court that the section 36 applications on behalf of CNB and LM had been resolved and that the Minister was now consenting to their applications for standing.
[25] On May 11 the court proceeded to render an oral decision confirming dismissal of SV’s application. The court acknowledged that CNB and LM were to be added as Third Parties by consent thereby eliminating the need for hearing of their application. The court noted that SB’s section 36 application would still proceed as scheduled. The court confirmed the date of June 12 as a further pretrial conference.
[26] Subsequently the court was advised that SB had withdrawn her section 36 application.
[27] Pursuant to review application and notice of hearing dated June 10, 2015 the Minister requested orders for permanent care and custody with respect to the children KB, BB and GB pursuant to section 46(5)(c) of the Children and Family Services Act, as well as a termination order in relation to the oldest child, AB.
[28] The notice also confirmed an application pursuant to section 96(3) of the Children and Family Services Act for the admission into evidence of statements made by each of the children.
[29] At a prehearing held June 12 at Truro Justice Centre counsel agreed that the Minister’s application pursuant to section 96(3) would be dealt with at the outset of trial by way of a voir dire. All parties acknowledged that it would be in the best interests of the children that they not be called as witnesses at trial. It was agreed that the issue for determination by way of voir dire would be the issue of threshold reliability of the statements.
[30] Immediately prior to commencement of the trial on July 7 the court inquired as to whether or not the Respondents would consent to a termination order and an order for custody in favour of AP and MP in relation to the oldest child AB, under the Maintenance and Custody Act. Counsel for the Respondents confirmed the Respondents’ willingness to proceed on that basis. The court then proceeded to grant the Minister’s request for termination of the disposition order relating to AB. MP confirmed his request for an appropriate order under the Maintenance and Custody Act on behalf of himself and his wife AP. The court granted leave for the application and then confirmed an order for sole custody in favour of MP and AP based upon the court’s determination that such an order would be in the best interests of the child AB. In granting the order the court acknowledged the consent of the Respondents.
[31] The court then proceeded to confirm the Respondents’ position with respect to the child KB. The Respondent parents confirmed that they were not requesting that KB be returned to their care but they were not prepared to admit that she was in need of protection on the grounds alleged by the Minister. Counsel for the Guardian ad Litem then suggested that consideration should be given to a possible protection finding based upon subparagraph (k) of section 22(2). The court adjourned the matter briefly in order to allow counsel the opportunity to seek appropriate instructions from their respective clients.
[32] Following the adjournment counsel for the Respondents confirmed the willingness on the part of DB and CB to consent to a protection finding under section 22(2)(k) in relation to the child KB and also advised that both parents would consent to an order for permanent care and custody in relation to KB. Counsel for the Third Parties took no position. Counsel for the Minister stipulated that if the Respondents and Third Parties were willing to proceed on that basis it would be subject to a reservation of the Minister’s right to still proceed with presentation of evidence relating to AB and KB in support of the Minister’s application relating to the two younger children. Counsel for the Respondents and the Third Parties acknowledged the Minister’s position and indicated that they were prepared to proceed on that basis.
[33] The court then proceeded to make the necessary protection finding with respect to KB and granted the Minister’s request for an order for permanent care and custody as consented to by the Respondents.
[34] Prior to commencement of the voir dire counsel requested that the court assign additional dates for trial. The court confirmed October 20, 22 and 23 as additional dates for trial if required.
[35] The Minister’s application for permanent care and custody in regards to the two younger children, BB and GB, then proceeded with the commencement of the voir dire. The voir dire continued on July 9 and concluded on July 10. On July 17 the court provided a detailed oral decision on the issue of threshold reliability in relation to the children’s statements. The trial then resumed on July 17 and continued on July 21, 23, 24, October 20, 22 and 23, 2015.
[36] Following submissions by counsel on October 23 the court reserved decision on the understanding that counsel for the Minister, as well as counsel for Mrs. B, would be submitting additional post-hearing briefs.
[37] The Minister’s post-hearing brief was filed November 9, 2015. Jennifer Reid, counsel for Mrs. B, subsequently submitted correspondence, dated November 16, indicating that no further submissions would be made on behalf of Mrs. B. Ms. Reid did advise that, in the event permanent care was ordered, both parents were requesting continued access with the children however, the parents also acknowledged that the Minister’s plan was premised upon adoption placement for both children, and therefore, in the further alternative, they requested the opportunity for a final visit with both children.
Issues
[38] The primary issue for determination is whether or not the two children who continue to be the subject of the protection proceeding, BB and GB, should be placed in permanent care and custody or returned to the care of the Respondents, DB and CB.
[39] Determination of the first issue will necessarily involve determination of the ultimate reliability of the out-of-court statements of the children as admitted at the conclusion of the voir dire, as well as determination of whether or not the children continue to be in need of protective services.
[40] In the event the court determines that the children are not to be returned to the care of the Respondents the court must then determine whether or not the children should be placed in the care of the Third Parties, CNB and LM, rather than permanent care and custody.
[41] If the court grants the Minister’s request for orders for permanent care and custody then the court will have to determine whether or not the Respondents should nevertheless be permitted to have access with the children.
Review of evidence admitted by way of voir dire
[42] As noted earlier a voir dire was held at the outset of the hearing in order to determine the Minister’s application for admission of out-of-court statements of the children pursuant to section 96(3).
[43] Eight witnesses testified and 14 exhibits were entered during the course of the voir dire. Neither the Respondents, nor Third Parties, called any witnesses during the voir dire.
[44] Prior to submissions at the conclusion of the voir dire counsel confirmed that they had agreed that all the evidence adduced and admitted by way of voir dire would be admitted as evidence for purposes of trial, subject of course to the court’s decision on the voir dire.
[45] In an oral decision rendered July 17, 2015 the court acknowledged that the parties had agreed that the sole issue for determination by way of voir dire was the issue of threshold reliability of the children’s statements given the parties’ agreement that it would not be in the best interests of the children to testify. Necessity was therefore admitted. I acknowledged the clear distinction between the determination of the issues of threshold and ultimate reliability and confirmed that the determination as to ultimate reliability would be made based upon consideration of all of the evidence presented during the trial.
[46] In the paragraphs that follow I have summarized portions of the out-of-court statements made by the children that were determined to be admissible at the conclusion of the voir dire. As indicated this is a summary and not intended to be comprehensive.
[47] The court confirmed that AB’s video statement of April 1, 2014 would be admitted, subject to specific redactions as confirmed in relation to the transcript entered as exhibit 2. The redacted sections of the transcript and the corresponding segments of the video were confirmed as inadmissible.
[48] During the course of her statement AB described her home life indicating that she and her sister KB were responsible for chores on a consistent basis such as cleaning the kitchen and bathroom. If the chores were not done to the satisfaction of the Respondents then they would be punished by either being sent to bed early or being required to do extra chores. She confirmed that her younger adoptive siblings, BB and GB were not required to do any chores.
[49] AB indicated that her sister KB got hit all the time. She mentioned one occasion when their father CB hit KB with a broomstick and described another altercation where their mother DB grabbed KB by the back and clawed her in the back and hit her in the head. AB stated that she was there when her mother clawed KB in the back and that she had watched her father hit KB with the broomstick. AB described her father as having a very bad temper and that when he explodes he yells, screams and curses. AB referred to her sister KB as a pathological liar during the course of her interview. AB also talked about her mother telling her to hit KB so that KB couldn’t say it was one of her parents hitting her and they would be able to say it was just AB and KB fighting. However she indicated that sometimes her parents’ temper got out of control and they forgot and hit KB themselves.
[50] The three other children; KB, BB and GB were interviewed at the agency on April 2, 2014. The affidavit of Alison MacDonald, sworn June 25, 2014 (exhibit 6, tab 1) at paragraph 26, confirms that BB denied that the children were physically abused and GB did not disclose any information to support AB’s allegations. KB also denied that the allegations made by AB were true.
[51] Exhibit 1 was a documentary brochure including the complete RCMP file and record. The records within tab B of exhibit 1 include a statement from KB as taken at the agency office on April 2, 2014. In her statement KB indicated that she had never been assaulted by either Respondent and that she had never seen any of her siblings get physically disciplined. The record also confirms the officer’s observation that KB appeared truthful.
[52] With respect to AB’s second video statement obtained on September 24, 2014 the court determined that it would also be admitted subject to the exclusion of specific portions of the transcript of the interview (exhibit 3) and corresponding portions of the video.
[53] During the second video statement AB again described her home life with the Respondents. Her account was similar to her original statement. During the course of the second interview AB stated that her brother BB got spanked by the Respondent CB because he peed himself at night. AB stated that BB and GB both got spanked and that KB got hit. AB said that the Respondents would never hit her. Again AB stated that her mother would ask her to hit KB when KB was having a temper tantrum and confirmed that on one occasion her father hit KB with a broomstick. AB also indicated that GB would be hit with wooden or plastic spoons and that her parents also used what she referred to as a wooden cylinder purchased from Home Hardware, approximately a half inch in diameter, snapped in half, that was called “Mr. Rollie”. AB indicated that the Respondents also had those when their own biological children were young and that’s where the name “Mr. Rollie” had come from. AB indicated that “Mr. Rollie” was used to discipline GB and that the Respondents would spank GB with it on the bum.
[54] The video statement of BB taken September 24, 2014 and associated transcript (exhibit 4) were also held to be admissible subject to the exclusion/redaction of specific portions of the transcript and associated portions of the video interview.
[55] During his interview BB confirmed that his parents would give spankings. He indicated that a spatula would be used. BB indicated that if he accidentally peed his pants he would be spanked with the spatula. BB also indicated that a wooden spoon was also used for spanking. BB indicated that brooms were just used for sweeping. BB said that when he was spanked with the wooden spoon or spatula it hurt really bad.
[56] The video statement of GB taken September 24, 2014 was also found to be admissible subject to the exclusion/redaction of certain portions of the transcript and associated portions of the video interview.
[57] During her interview GB indicated that if somebody broke a rule, or got in trouble for doing something they weren’t supposed to, they would be spanked. When asked how someone would be spanked GB indicated with a stick. She indicated that the spanking would be done by her father and that it hurt. GB testified that neither KB nor AB would be spanked and that when they got in trouble they were sent to their rooms. She indicated that her brother BB got spanked for peeing in the bed. GB confirmed that KB and AB did chores at home.
[58] The video statement of KB and associated transcript (exhibit 14) were held to be admissible.
[59] During the course of her interview KB described an incident where her mother told her to go to her room and then AB came into the room and started punching and hitting her. KB suggested that her mother had made AB do that. KB also referred to an incident where her father picked up a broom and whammed it into her back. She also described another incident where her mother scratched or clawed her on the back. During her interview KB referred to “Mr. Rollie” and described it as something that you can get at Home Hardware and that her mother would spank GB with that. She also confirmed that her father would spank BB. KB said that her father never hit her other than the incident with the broomstick. KB maintained that aside from AB it was mostly her mother who hit her and that her father was usually pretty good.
[60] BB’s statement to Anna Galvin on October 20, 2014, as referred to in Ms. Galvin’s affidavit sworn January 9, 2015 (exhibit 6, tab 11) was admitted. BB’s statement to Anna Galvin on January 26, 2015, as referred to in her affidavit sworn June 10, 2015 (exhibit 7, tab 4), was also held to be admissible. In both statements BB expressed his concern about participating in access visits. He felt that the Respondents were acting differently during access visits compared to how they behaved at home.
[61] BB’s statements to his foster parent DS, as referred to in the affidavit of DS sworn June 23, 2015 (exhibit 12, paragraph 10), were admitted. BB told DS that GB would get spanked if she had an accident in her pants, that his mother mostly spanked GB and that his father spanked really hard and he demonstrated to the foster parent how he was spanked.
[62] BB’s statements to his foster parent DS in August 2014, as referred to in the affidavit (exhibit 12), commencing at paragraph 15, and also as referred to in the affidavit of Anna Galvin, sworn January 9, 2015 (exhibit 6, tab 11), were not admitted into evidence.
[63] The statement of AB to Alison MacDonald on April 22, 2014, as referred to in Alison MacDonald’s affidavit sworn June 25, 2014 (exhibit 6, tab 1), was admitted. When Ms. MacDonald met with AB on that date AB told her that when the Respondents were going through the courses required for foster and adoptive families they took them seriously but once the children were adopted the Respondents changed. AB indicated that her parents knew they could not spank the children before they were adopted because it was against the rules but that the two youngest children BB and GB had subsequently been spanked with a wooden spoon and a wooden rod. AB indicated that the children were not allowed to tell anyone what was happening because they had to be loyal to the family.
[64] The statement of KB to Alison MacDonald on July 14, 2014 was also admitted (affidavit of Alison MacDonald sworn July 16, 2014, exhibit 6, tab 3, and paragraph 7). During the interview with KB on July 14, KB indicated that her mother and father did a lot of screaming and yelling at home, that she had been slapped by her mother DB on her back on the day she was taken into care and that this had been painful and she had cried and that this was not the first time she had been hit by her mother. KB also indicated that her mother would have her older sister AB hit her. KB also stated that before she and GB and BB were interviewed on April 2, 2014, her mother had them memorize answers to the agency’s questions. KB also indicated that she was not hit or spanked until after her adoption day. KB suggested that her sister AB had told the truth in what she had originally reported. She described an incident where her mother had chased her around the house before cornering her and then grabbing her back in a manner which left scratches. KB indicated that she couldn’t tell the truth previously because of the need to obey her mother noting that if the children did not obey they would get hurt.
[65] The statement made by KB to her foster parent MM (affidavit of MM sworn June 23, 2015, exhibit 11, commencing paragraph 9) was found to be admissible together with those portions of the affidavit of Anna Galvin (exhibit 6, tab 11) referring to the statement as reported by the foster parent. On July 12, 2015 KB told her foster parent that there was a lot of yelling and screaming at her parents’ home and that her younger siblings GB and BB were frequently spanked by her parents. KB indicated that two days before she came into care her mother slapped her back. She indicated that it was a very hard slap and that it really did hurt. KB also indicated that, after agency social workers had come to visit the home, her parents sat her and her two younger siblings at a table and had a rehearsal about how they would respond to questions if interviewed about whether they were ever hit, yelled at or spanked and that they were told to say “no”. KB indicated that she was afraid to tell the truth because of what would happen if she did and she was made to go back home. KB expressed concern for her younger siblings.
[66] Statements made by KB to Anna Galvin in October 2014 (October 10 and 30), as referred to in Ms. Galvin’s affidavit of January 9, 2015 (exhibit 6, tab 11, paragraphs 47 and 48) were also determined to be admissible. On October 30 KB participated in a meeting at the agency and indicated that she didn’t wish to have access with her parents. KB again indicated that when agency workers had attempted to interview the children prior to the taking into care the Respondents had primed GB and BB to respond in the negative if they were asked if the Respondents spanked them.
[67] The statements made by GB to her foster parent MM during the period August to December 2014 were held not to be admissible. The statements attributed to GB as referred to in the affidavit of MM (exhibit 11), together with relevant paragraphs from the affidavit of Anna Galvin dated January 9, 2015 (exhibit 6, tab 11), were struck.
[68] Finally with respect to the statement of GB to Anna Galvin on March 2, 2015 as referred to in Ms. Galvin’s affidavit of June 10, 2015 (exhibit 7, tab 4, paragraph 32) the court determined that those statements were admissible. On March 2, 2015 the worker attended at the foster home and GB asked to meet with her in private. GB indicated that she was mad at her parents because they had said that she was lying. When asked when her parents had said this GB indicated that it was during one of her visits with her parents but she couldn’t remember when. GB indicated that she was not lying and indicated that the Respondents did “hit us”.
[69] The court provided detailed oral reasons for its decision on the voir dire on July 17.
Review of evidence adduced during remainder of trial
[70] The hearing of the Minister’s application for orders for permanent care and custody then continued, on the basis of counsel’s agreement that the evidence admitted during the voir dire would also be available for consideration in determining the Minister’s application.
[71] In the paragraphs that follow I provide a summary of some of the evidence presented during the balance of the hearing. I want to again emphasize that this is a summary and not intended to be a comprehensive review of the evidence. I do however want to assure all the parties that I have carefully considered and reviewed all of the evidence presented during the entire hearing in determining this application.
[72] The trial continued on July 17, 21, 23 and 24 and also October 20 and 23. A total of 37 exhibits (including voir dire exhibits) were tendered during the trial. Ten additional witnesses were called on behalf of the Minister, and one witness who had testified during the voir dire, Anna Galvin, was recalled. The Respondents DB and CB testified. The Third Parties CNB and LM also testified.
[73] Angela Ellsworth, psychologist, testified on behalf the Minister. She was permitted to give opinion evidence as an expert in psychology with particular expertise in relation to child psychology, trauma-informed treatment and assessment of the psychological, cognitive and social needs of children.
[74] Ms. Ellsworth confirmed that she had completed comprehensive psychological assessments for KB, BB and GB.
[75] During her direct examination she confirmed that KB’s cognitive abilities were within the average range. Ms. Ellsworth testified that child development is very much influenced by primary caregivers. In KB’s case her early childhood experiences were disrupted by either abuse or neglect and not receiving appropriate caregiving. As a result she developed a sense of distrust and developed strategies to best manage on her own. This was then followed by her adoptive family placement where Ms. Ellsworth believed she again was in an environment that did not offer safety and security and exposed her to additional trauma. Ms. Ellsworth expressed her belief that KB would require long-term intense therapy.
[76] Ms. Ellsworth was asked how a child who had been impacted by trauma would react to being returned to the placement where they had experienced that trauma and she suggested that the child would react in a significantly negative manner. She expressed concern that the child would be hyper-aroused to not feel safe or secure and that he or she would be left to their own survival mode and self-preservation, which has long term significant social, emotional and learning repercussions.
[77] Ms. Ellsworth suggested that GB would benefit from appropriate support from adults, as well as individual therapy that could offer guidance for GB as well as her caregiver. She felt that it would be in GB’s best interests to have a trauma- focused approach to therapy based on the fact that what has happened to GB is trauma based and is impacting upon attachment relationships. She referred to GB as being at greater risk for impulsive type behaviours and not necessarily knowing or understanding the consequences prior to making choices.
[78] Ms. Ellsworth’s assessments for each child were included in exhibit 18, at tab 1.
[79] Doreen Coady Shadbolt, registered psychologist, also testified for the Minister. Ms. Coady Shadbolt was permitted to give opinion evidence as an expert in psychology with particular expertise in diagnosing and treating children with mental health, emotional, social and behavioural issues as well as expertise in identifying and treating attachment issues in children. She provided therapeutic services for KB, BB and GB following the taking into care.
[80] When asked how life experience may impact upon development Ms. Coady Shadbolt indicated that early neglect, trauma or chaos can impact negatively upon the child’s development and their ability to regulate their emotions.
[81] In a written report relating to her involvement with all three children dated June 7, 2015 (exhibit 18, tab 3I) Ms. Coady Shadbolt offers the following opinions with respect to KB:
K presents as a young pubescent girl who is in the process of identity formation. K has had numerous changes and challenges in her life and as a result is somewhat wary of forming new relationships. She is, in my opinion, exquisitely sensitive to tone of voice and rejection, as well as hypocrisy. K appears hypervigilant to alterations of the truth and becomes very distressed (which manifests itself as anger) when adults in her life do not validate her emotions or her perspective. K has made clear statements about her adoptive family, and how she has felt disconnected and harmed by them. She has disclosed incidents of physical punishment and lack of feeling important in the household. She has expressed significant anger at her former adoptive parents and at present is stating that she wishes no relationship with them.
[82] In her report dated June 7, 2015 Ms. Coady Shadbolt expresses her belief that the child GB requires a stable home environment which is able to teach her emotional regulation skills and encourage exploration and curiosity. At one point during her direct examination she indicated that if GB was not placed in that type of environment she will start to have difficulty at school and her peer relationships might suffer. She expressed concern that GB might become emotionally dysregulated or temperamental, and that her anxiety would begin to manifest as anger.
[83] During her direct examination Ms. Coady Shadbolt also talked of a therapy session with GB where she was reaching into a shelf to get some stickers and a bag containing small dowels fell out and GB reacted by saying “Hey, it’s a little Mr. Rollie”. The child wasn’t frightened, just pointing out what it was.
[84] In her report of June 7, 2015 Ms. Coady Shadbolt indicates her belief that BB has adjusted well in his current foster placement and is displaying no significant behaviours either at home or at school. She noted that BB had made comments about being fearful of his adoptive parents and had indicated that he no longer wished to visit them. She expressed her opinion that it was imperative that BB’s positive relationship with his current foster parent be maintained given his developmental stage, noting the need for BB to be stabilized in a healthy, structured and warm environment otherwise the child could begin to increase risk-taking behaviour.
[85] During cross-examination Ms. Coady Shadbolt indicated that she did not believe that any of the disclosures made by the children about the abuse they had suffered at the home of their adoptive parents were a result of manipulation or coaching.
[86] Harvey Bate, casework supervisor, identified his affidavit sworn January 6, 2015 as set forth in exhibit 6, tab 10.
[87] Mr. Bate testified that he was the caseworker for the Respondents DB and CB in 1998 when their biological daughter AP reported that she had been hit. Mr. Bate was requested to do an investigation and subsequently AP was taken into care. According to Mr. Bate, Mr. and Mrs. B admitted to hitting the child with a belt but denied that this had happened the number of times suggested by AP.
[88] The case recordings relating to AP are found in exhibit 13 at tab 1A. The recordings confirm that AP alleged that her father CB hit her with a belt. The recording dated April 10, 1998 indicates that when interviewed, her mother, DB, confirmed that AP was hit by the belt by her father, but indicated it was the first time she had been hit with the belt, it was only used as a last resort and no force was used. An entry dated April 14, 1998 indicates that AP also reported being hit with a broomstick. The case recordings also confirm that the parents consistently expressed concerns with respect to AP’s credibility.
[89] Mr. Bate testified that a psychological assessment was completed and according to Mr. Bate the report indicated that AP was prone to lying. Family support services were provided. DB and CB were cooperative with the agency and AP was eventually returned home and the file closed.
[90] During his testimony Mr. Bate confirmed the agency’s belief that the children would be at risk in Mr. and Mrs. B’s home. The agency is accepting of the children’s disclosures.
[91] Mr. Bate testified that Mr. and Mrs. B had been offered therapy but had not been able to identify any issues to be addressed through therapy. The agency concluded that family support services would not be appropriate because the Respondents had had extensive training previously as foster parents and potential adoptive parents.
[92] Mr. Bate also confirmed that the Minister was not willing to pursue placement of the children with CNB and LM. Mr. Bate indicated that the agency was relying upon the recommendations of Debra Garland with respect to any possible placement for BB and GB. He noted that there had been a prior concern relating to domestic violence on the part of CNB and that CNB had also been involved in mental health counselling. Another concern was their ability to protect the children given CNB’s continued relationship and contact with his parents DB and CB. Mr. Bate made it clear that there were no major concerns regarding the parenting ability of CNB and LM.
[93] During his cross-examination Mr. Bate acknowledged that KB and BB had been adopted by Mr. and Mrs. B in May 2013 and at that point there had not been any concerns identified with respect to the care being provided by Mr. and Mrs. B.
[94] The next witness called on behalf of the Minister was Kerstin Schauss, clinical therapist. Ms. Schauss identified her correspondence to the agency dated July 15, 2014 (exhibit 6, tab 3, exhibit D), regarding her involvement with BB. The letter confirms that Ms. Schauss had been providing joint therapy sessions for the child BB and the Respondent DB during the months of May, June and July 2013. Following a joint therapy session on July 4, 2013 DB did not bring BB for any further therapy. She made several attempts to contact DB by telephone to inquire as to why they had stopped coming but there was no answer. Ms. Schauss indicated her belief that joint sessions were beneficial for BB. She expressed concern that the abrupt disruption in service was not a healthy way for the child to disengage from therapy since it provided no opportunity for therapeutic closure.
[95] Ms. Schauss indicated that she’d also been involved in providing therapy for KB. She acknowledged that she had terminated KB’s therapy because she concluded that it was no longer necessary. However she explained that they had a closing session with KB and again emphasized that that had not happened for BB.
[96] During cross-examination Ms. Schauss reiterated that she was very clear in indicating that she never said therapy for BB had ended.
[97] Social worker Amy Sutherland testified on behalf of the agency. Ms. Sutherland indicated that she became the responsible social worker in July 2014 and as such was responsible for case planning. She confirmed that the agency identified that a parenting capacities assessment would be useful and she arranged for Debra Garland to undertake such an assessment. Counselling was also identified as appropriate and so they arranged for Dr. Webster to provide counselling for Mr. and Mrs. B.
[98] During her direct examination Ms. Sutherland reviewed the agency’s concerns with respect to Mr. and Mrs. B, noting that the children had originally been placed with them as foster parents subject to a written agreement that they not use corporal punishment. In addition she noted that Mr. and Mrs. B had received training for foster and adoptive parents. She suggested that approximately 20 courses may have been provided to DB. Despite all this training, Mr. and Mrs. B still used corporal punishment in disciplining the children.
[99] Another concern was what happened with the children appeared to be part of a greater pattern involving Mr. and Mrs. B’s biological children. She noted that the history of parenting of their biological children also involved use of corporal punishment.
[100] Ms. Sutherland indicated that the agency had to follow the timelines in the legislation and stated that the Minister did not believe that there would be any foreseeable positive change in the near future.
[101] She reviewed the services that had been provided both prior to and subsequent to adoption. She noted the Respondents’ participation in PRIDE training, foster/adoption training plus a subsidized adoption agreement that had authorized services for the children, including counselling for KB and BB and for the Respondents themselves.
[102] During her testimony Ms. Sutherland also indicated her belief that a supervision order would not be able to alleviate the identified protection concerns. She again confirmed the Minister’s belief that the children had been emotionally and physically abused. Ms. Sutherland expressed her opinion that the children had experienced trauma in the home of Mr. and Mrs. B and that any potential placement with them would involve a high risk of future trauma.
[103] Ms. Sutherland confirmed that the agency was not supportive of placement with CNB and LM. The agency concerns were based upon the fact that CNB and LM did not see any risk associated with Mr. and Mrs. B. She confirmed her understanding that CNB and LM do not believe that the children’s statements or reports of abuse are true. CNB and LM do not see any risk associated with contact between the children and Mr. and Mrs. B. She indicated that CNB and his parents have a close relationship. She queried how CNB could protect the children if he did not perceive there to be any risk associated with contact with his parents. She emphasized that the children need to be in a blemish-free stable home but acknowledged the well-meaning intentions on the part of CNB and LM.
[104] In commenting upon the agency’s long-term plan for the children she confirmed that the agency plan is premised upon the two children being adopted and having a “forever” home. She expressed her belief that access post permanent care and custody would interfere with the stability of an adoptive home.
[105] Debra Garland, registered psychologist, was the next witness to testify for the Minister. Ms. Garland was permitted to give opinion evidence as an expert in psychology with particular expertise with respect to parental capacity assessments, parent-child relationships, child psychological development and attachment.
[106] Ms. Garland identified her assessment as contained in exhibit 17, at tab 1B.
[107] When referred to page 22 of her assessment report and the information regarding the collateral interview with CNB, Ms. Garland testified that she was confident that she would have included CNB’s statement that he and his sister were disciplined with a belt on occasion in her notes and that she was confident that it was an accurate statement attributable to CNB.
[108] Based upon the results of the psychological testing Ms. Garland concluded that the Respondents do not have the parental capacity to meet the emotional, psychological and physical or developmental needs of the children.
[109] Ms. Garland expressed her belief that the child GB requires parents who can respond to her need to grow and develop, to encourage her socially, to encourage her independence, to teach her social norms and values. She indicated that this would also apply to the child BB.
[110] Ms. Garland testified that use of physical discipline has impact upon children. She expressed her belief that when children are physically disciplined it’s a threat and an assault. It teaches children that force is a means of dealing with issues. It often encourages them to use physical discipline or physical intervention as they grow older.
[111] Ms. Garland testified that her ultimate conclusion with respect to the Respondents’ parenting capacity was that she does not believe that they have the capacity or ability to adequately parent the children.
[112] Ms. Garland also expressed her opinion that if GB and BB are to be placed in the permanent care of the Minister and if they are going to have another adoptive home, that home has to be established and stable. She indicated that there cannot be any history of interpersonal violence or domestic violence or substance abuse. It needs to be a very stable home where the children will be able to have permanency.
[113] During her cross-examination Ms. Garland acknowledged that it was possible she was confusing a conversation with KB and AB at page 17 of her report and she retracted her earlier testimony where she indicated that the child AB had suggested that the Respondent DB watched television.
[114] Ms. Garland confirmed that in undertaking her assessment she was looking for adequate parenting capacity.
[115] Later in her cross-examination she was referred to the collateral interview with AP, as referred to at page 26 of her report, where she indicated that AB reported that she ran away when she was 13 years old because of corporal punishment used by her parents and that the catalyst was when her mother DB had accused AB of stealing paper money and held her while she was beaten all over her body with a wooden dowel. Ms. Garland acknowledged that those statements should in fact be attributed to AP rather than AB, and that she had confused it in her report.
[116] During further cross-examination Ms. Garland also reiterated her opinion that the children if placed in permanent care and custody need to be placed in a stable and blemish-free home. She also indicated that any placement that would expose the children to continued contact with the Respondents would be a concern.
[117] Ms. Garland was the last witness to testify on behalf of the Minister. The trial continued with the presentation of evidence on behalf of the Respondents.
[118] Olga Komissarova, registered psychologist testified on behalf of the Respondent DB. Ms. Komissarova’s Curriculum Vitae was entered as exhibit 26 and her report was entered as exhibit 27. The Minister was not prepared to admit her qualifications.
[119] During cross-examination on the motion to qualify, Ms. Komissarova agreed with the suggestion that her report was a psychological assessment and not a parenting capacities assessment.
[120] At the conclusion of the voir dire on the motion to qualify, counsel for DB amended her original motion to indicate that she was requesting that the witness be qualified as a psychologist with expertise in the area of psychological assessments. Counsel for the Minister then advised that the Minister was willing to consent to that motion but on the condition that any reference to parenting capacity or placement issues should be struck from her report. The motion to qualify as consented to by the Minister was granted by the court.
[121] The recommendations as set forth in Ms. Komissarova’s psychological assessment dated June 26, 2015 included a recommendation that the children BB and GB be returned to the care of Mr. and Mrs. B under the supervision of the agency. She indicated that future contact between Mr. and Mrs. B and the two older children AB and KB should be gradual and only if the two children express a need for such contact.
[122] During cross-examination Ms. Komissarova acknowledged that she had not spoken with Debra Garland but stated that she views Debra Garland to be an excellent psychologist.
[123] At one point during her cross-examination Ms. Komissarova acknowledged that members of the family tend to be more subjective. When questioned as to why she didn’t speak with the Respondents’ son, CNB, she said it was probably because she just didn’t have time.
[124] During her cross-examination Ms. Komissarova was asked if it was ethical to provide an opinion if she had only limited time to complete the assessment and had to leave out important information. Ms. Komissarova responded by indicating that she had a certain timeframe to work within and that it was not a question of ethics but a question of teamwork and she didn’t feel that she received teamwork from some sources. She then acknowledged that in other circumstances it might be considered unethical but she felt that she did the best she could.
[125] Ms. Komissarova acknowledged that she didn’t have any contact with any of the children. At another point she acknowledged that she had a limited time to review the documentation that she was provided with and therefore she had filed an addendum on June 29.
[126] During cross-examination by counsel for the Guardian ad Litem, Ms. Komissarova agreed that she couldn’t complete a thorough assessment due to time limitations.
[127] The next witness to testify was the Respondent, DB. She identified her affidavit as exhibit 21 and confirmed that the information in the affidavit was true.
[128] In her affidavit DB confirmed that she and CB are currently members of a Mennonite Church. She indicates that they were previously members of a different Mennonite Church but left that church permanently in 2014 as a result of differences between their beliefs and those of that Church.
[129] In her affidavit DB confirmed all of the courses that she and CB had taken to qualify as foster parents and adoptive parents. Various certificates of merit and certificates of accomplishment were attached as exhibits to her affidavit.
[130] In her affidavit DB noted that the child AB was adopted August 13, 2012, KB and BB were adopted on May 3, 2013 and GB was adopted on May 24, 2011.
[131] In one section of her affidavit DB discussed discipline in the home. She confirmed that spanking was used on occasion as a last resort and always with a hand on top of the clothes and with an explanation for the punishment. According to the applicant spanking was only used as a corrective measure. BB was only ever spanked once or twice because he was lying persistently. GB was spanked infrequently as a corrective measure for hitting and yelling at others. DB denied frequent spanking, spanking or hitting with the use of any kind of tool or weapon or spanking on any part of the body, other than a tap on the bum. She also denied any yelling or screaming at the children. DB’s affidavit also included a denial of any abuse of her biological children. Her affidavit confirmed her request that the two younger children be returned to the care of the Respondents. In the alternative, if that was not possible, then she supported the children being placed in the care of CNB and LM.
[132] She was cross-examined by counsel for the Minister.
[133] DB acknowledged that she admitted to spanking the children with an open hand but denied all other allegations. When asked about the children’s allegations DB suggested that it seemed to her that the children had been led. She did not offer any basis for this impression.
[134] DB testified that she and Ms. Schauss had reached a mutual understanding to stop BB’s therapy. She disagreed with Ms. Schauss’ testimony about the ending of the therapy for BP.
[135] When asked about discipline DB testified that she remembered signing the agency’s discipline policy however she indicated that she thought it was only applicable to foster children and noted that in any event physical discipline involving the use of a hand for spanking was only used as a last resort. She indicated she understood that the Minister’s discipline policy meant that spanking was not okay. She then went on to testify that while she understood it was not okay, the spanking occurred about a year later, meaning a year after the children had been adopted. She was then asked if she considered herself bound by the policy post adoption and she responded “not necessarily”.
[136] DB testified that as adopting parents they had received a letter stating that they now have all the rights as if the children were born to them. She then suggested that physical discipline was okay if done in a proper manner. She acknowledged that she had received training regarding discipline as a foster parent. It was again suggested to her that physical discipline was not acceptable and she said she couldn’t remember what book indicated that so she wasn’t able to comment.
[137] At one point during her testimony DB said that the children were in the home for one and half years following adoption before she ever spanked one of them. She then went on to suggest that what happened was that BB was getting a lot like KB and he was “lying without consequence or reward, lying, lying, lying”. They tried to make him understand through consequences by sending him to bed early or time out but none of the methods tried were successful so she gave him a little spanking, but that didn’t help either.
[138] When questioned by counsel for CB, DB indicated she agreed that she would regard spanking as a last resort. She was then asked if spanking remained an option and she responded “definitely not”. She was then asked why and she said “look where we are at”. She testified that spanking didn’t help with BB and she deeply regretted it. She then stated that spanking was used once for BB and about twice with GB. DB said that spanking was used with BB as a last resort because they didn’t want BB to be like KB. She went on to explain that AB was giving them lots of problems due to her crush on a teacher and KB was yelling and screaming a lot and they tried to hide the young ones from this. At a later point she testified that KB constantly involved the other children in her lies.
[139] Various affidavits were entered as exhibits 23, 24 and 25 by consent. The deponents for exhibits 23 and 24 confirmed their acquaintance with the Respondents and indicated that they had never seen any signs of abuse or mistreatment of the children.
[140] Exhibit 25 was the affidavit of the Respondents’ daughter, SB. In her affidavit SB maintains that KB would lie about things. SB indicated in her affidavit that she has never been abused by either of her parents in any way and that she has never seen her parents abuse the other children. She denied any knowledge of “Mr. Rollie”.
[141] The next witness to testify was the children’s father, CB. He identified his affidavit (sworn declaration) as exhibit 28. With the exception of some typographical errors he said that the affidavit was true.
[142] CB discussed discipline of the children in his affidavit. He indicated the discipline was always corrective. He confirmed that the forms of discipline utilized included spanking. He denied that discipline ever involved hitting a child with an open or closed hand, slapping a child in the face, hitting the child with a physical instrument such as a wooden dowel or wooden spoon or wooden or plastic spatula or broomstick.
[143] CB denied ever hitting KB or using any weapons as a form of discipline or ever making threats of physical discipline. In relation to BB he indicated that he spanked BB a couple of times for lying and that the spanking involved a couple of slaps to the rear and never left any marks and never involved use of a weapon. The reason BB was spanked was because he was constantly lying. He denied ever spanking or using any physical discipline with GB.
[144] CB denied that either DB or he ever coached the children to lie.
[145] He acknowledged that the term ‘Rollie’ was a term he was familiar with. It was referenced in a book used by a Minister during a study on Christian parenting that advocated not “spoiling the child by sparing the rod” and according to CB the rod was called “Rollie”. CB denied that he or DB ever used rods or dowels as a form of discipline. He acknowledged that dowels were used in the house in the front yard to keep rosebushes in place and that one was used in the powder room to hold up a curtain in front of the closet.
[146] Three other sworn declarations were entered on behalf of CB as exhibits 29, 30 and 31 on a consent basis. The declarations were similar insofar as each declarant confirmed their relationship with the Respondents and indicated that they had never seen the Respondents physically or emotionally abuse their children.
[147] The Third Party CNB testified on his own behalf. He identified exhibit 36 as his affidavit sworn April 24, 2015.
[148] When referred to his discussion with Debra Garland he indicated that when he told Ms. Garland he was never disciplined he meant by use of a weapon or object. He indicated he was spanked on his rear and that the last time this would have happened would have been when he was 9 or 10 years old.
[149] When asked about his mental health history he said that his mental health was an issue in 2012, when he was a patient in the mental health unit at the local hospital. He had overdosed on Ativan. He was experiencing a lot of stress. He was admitted to hospital in June 2012 and afterwards continued with therapy for eight months.
[150] CNB confirmed that he was still supportive of his parents but in the alternative he was asking that the two children be placed in the care of himself and LM. He confirmed his willingness to cooperate with the agency and comply with any court order.
[151] During cross-examination CNB was asked whether or not he agreed that his parents pose a risk for the children. He responded by indicating that with the current evidence he didn’t have to agree to that, but he was waiting on the outcome of the trial and would prefer that the judge make the decision. However he did point out that the risk was based on the allegations of the children.
[152] He was then asked whether or not he felt the children would be at risk in his parents’ care and he indicated that he never felt they were at risk however after hearing the evidence he felt there was a risk. Again he said the risk that he sees is based on the allegations of the children but he can’t be confident about the allegations until they are proven one hundred percent. He indicated that if the court says there are risks, he will agree.
[153] CNB was then asked whether or not he believes the children would be at risk of harm if they were in his parents’ care and he testified that at this time he does not believe that.
[154] When asked whether or not he would accept or rely upon Debra Garland’s opinion, CNB responded by indicating that he still supports the children being returned home to his parents.
[155] CNB was then referred again to Debra Garland’s assessment and asked to acknowledge her recommendation that any placement for the children should have a long history without blemishes and he agreed that that was her recommendation. He was then asked if he fit that description and he suggested that in the past five years he would say he was without blemishes. He was then asked if he had contact with the agency in 2012 after he had overdosed on Ativan and he acknowledged that to be correct. He was then asked if his daughter had been present when he had overdosed and he responded in the affirmative.
[156] The mental health records for CNB were tendered as exhibit 37. CNB acknowledged that in the past five years he had attended mental health for depression.
[157] After being given the opportunity to review his mental health records he was then asked if this was the blemish-free history that the children required and he responded by indicating that in the span of five years he agreed that he would not be blemish free.
[158] CNB was then referred to paragraph 11 of exhibit 34 (CNB’s supplementary affidavit sworn July 7, 2015). When asked to explain the information set forth in the exhibit CNB said that he was on Ativan and it made him lose control over his thoughts and actions. He maintained he had no recollection of what was referred to in the mental health records. He indicated that what he had said at the time was not one hundred percent true or accurate, but then suggested that the things he had said were not true at all.
[159] CNB was then referred to exhibit 37 (CNB’s mental health records) at page 51 and asked about his visit to mental health on November 4, 2011. CNB said he was not denying what was in the records but at the time he was having a lot of problems and he was trying to blame other people for his problems. He then indicated that contrary to the information in the records there was no family violence in his home. He stated that his reference to his father being physically abusive towards himself and his sister was incorrect and that that did not happen. In particular he said that his father did not hit them on the skin with rods and belts. CNB testified that he had no memory of violence towards himself or his sister and again he stated that at the time he was on Ativan and at a low point in his life.
[160] CNB was then referred to Debra Garland’s report at page 22 wherein Ms. Garland indicated that he had told her that as a child he had been disciplined with a belt. CNB then suggested that Debra Garland had misinterpreted his conversation with her. He agreed that he was not on Ativan at time of the interview with Debra Garland. CNB maintained that what he told Debra Garland was the story that his sister AP had told regarding the belt.
[161] CNB was then asked to explain the contradiction between what he had put in his affidavit, what he had told mental health and what he had told Debra Garland and he responded that when he was involved with mental health he was trying to blame everybody else and felt that he deserved some support financially from his parents and he was bitter and angry towards them. Again he insisted that he had told Debra Garland AP’s version of the story.
[162] At page 51 of exhibit 37 a mental status exam note for visit date of November 4, 2011 indicated that CNB reported depressed mood with suicidal ideation and a plan to hang himself in the woods. Concern was noted regarding his judgment due to his pattern of cannabis abuse. Risk of suicide was assessed as moderate to severe.
[163] Exhibit 37 contained the following entry at page 51, as part of a Mental Health Crisis Consult dated November 4, 2011 in the psychosocial portion of the Consult:
He reports a family history of family violence. Reports his father was physically abusive to him and his oldest sister. He reports Children’s Aid was involved when he was a youth but he lied to them because he feared he would be abused more. He reports his father would hit him often on the bare skin with rods and belts. He moved out as stated above at Grade 10 and the abuse stopped. He says now he has a good relationship with his parents and they are different people. They are foster parents. He has no concerns of his children being with his parents due to risk of violence. . . .
[164] The Third Party LM was the last witness to testify. She identified exhibit 32 as her affidavit. During brief cross-examination she confirmed that she and CNB reside less than five minutes away from Mr. and Mrs. B.
Submissions
[165] In closing argument counsel for the Respondent DB emphasized the burden of proof resting upon the Minister. Ms. Reid emphasized that the burden of proof was on balance of probabilities and that the court needed to be satisfied that it is more likely than not that there is either harm or risk of harm in order to find the children to be in need of protective services. Ms. Reid emphasized the importance of assessment of credibility in determining the Minister’s application and stressed the need to assess ultimate reliability with respect to the children’s out-of-court statements. She maintained that if ultimate reliability of the statements could not be established then the Minister would not have met the burden of proof required to establish that the children were in need of protective services. Ms. Reid emphasized that it was not acceptable for the Minister to take the position that spanking is never okay. She suggested that spanking would not fall under the definition of physical or emotional harm. Ms. Reid also emphasized that the standard expected of the parents is good enough parenting.
[166] Counsel for CB did not make oral submissions at the conclusion of the hearing indicating that he would rely upon the written submissions filed on behalf of CB. In a written submission dated October 23, 2015 Mr. Sutherland emphasized the importance of the court making appropriate findings with respect to credibility, as well as reliability, in relation to the children’s out-of-court statements. Mr. Sutherland maintained that the Respondents did not have to prove that the children were lying or colluding but rather the onus rested with the agency to establish the reliability of the children’s statements.
[167] Counsel for the Third Parties confirmed that his clients continue to support the Respondents and their request that the two children be returned to their care. In the alternative the Third Parties were asking that the children be placed in their care. Mr. Kuszelewski maintained that his client’s plan was acceptable and workable. He suggested that the Minister was wrong in suggesting that a five-year timeframe would be required or appropriate to establish a blemish-free potential placement. He confirmed the willingness on the part of the Third Parties to cooperate with the terms of any order and indicated that he would prepare any necessary application or order quickly.
[168] Counsel for the Guardian ad Litem emphasized that the children had reported abuse to agency workers, foster parents as well as the police. She submitted that any suggestion of collusion between the children was ludicrous. Ms. MacKenzie submitted that the Minister had met the burden of proof. She also submitted that there were too many problems associated with the parenting plan submitted by the Third Parties and in particular noted the Third Parties’ failure to appreciate or acknowledge any risks with respect to the Respondents. Ms. MacKenzie indicated that there were significant credibility concerns relating to the Third Party CNB.
[169] In a brief oral submission, counsel for the Minister emphasized the significance of the children’s disclosures. Ms. McFadgen urged the court to accept Ms. Garland’s assessment report in its entirety. She indicated that the risk regarding the Third Parties is unambiguous because they do not accept any risk regarding Mr. and Mrs. B. Given the initial interim disposition order made November 20, 2014 Ms. McFadgen indicated that the section 45 time limit in relation to the youngest child GB (12 months) had expired and therefore there were only two options; either dismissal or permanent care and custody. With respect to BB she acknowledged that because of his age, the timeline would be extended to May 20, 2016. She confirmed the Minister’s position that the protection issues could not be addressed within the timeline.
[170] The Minister submitted a written post-hearing brief on November 9, 2015. The brief confirmed the Minister’s request for a finding that the two children are in need of protective services pursuant to section 22(2), paragraphs (b), (g), (f), and (k).
[171] With respect to substantial risk of physical harm the Minister maintains that the disclosures made by the children do not support the Respondents’ contention that any physical discipline utilized should be seen as reasonable corrective discipline. The Minister maintained that the statements of the children should be accepted as reliable. The Minister suggested that the credibility of the Respondents as well as CNB should be carefully considered and assessed.
[172] With respect to the Third Parties, the Minister acknowledged the court’s jurisdiction to grant a Third Party supervision order in favour of CNB and LM but suggested doing so would be inconsistent with the children’s best interests and would place them at substantial risk of physical and emotional harm. The Minister argued that the risk posed by CNB and LM stems largely from their failure to recognize the risk posed by the Respondents.
[173] I would also note that extensive prehearing briefs were filed on behalf of DB, CB and the Minister prior to the commencement of the contested hearing on July 7.
Applicable legislation and case authorities
[174] In determining this matter I have taken note of the relevant provisions of the Children and Family Services Act.
[175] In particular I have considered the preamble to the legislation which underscores the purpose and philosophy of the Act and clearly emphasizes that children are only to be removed from the care of their parents when all other measures are inappropriate.
[176] I have also taken note of section 2 which confirms that the paramount consideration in all child protection proceedings is the best interests of the children.
[177] I have considered section 3(2), and the relevant circumstances as listed therein, in determining the best interests of the children.
[178] I have also considered the agency’s obligation to provide services as per section 13.
[179] I have taken note of the relevant provisions as set forth in section 22(2) in determining whether the children continue to be in need of protective services.
[180] I have also taken into consideration the provisions of sections 42, 45, 46 and 47.
[181] In the paragraphs that follow I have set forth excerpts from several decisions that provide guidance with respect to the determination of an application for permanent care and custody under the Children and Family Services Act.
[182] In Nova Scotia (Community Services) v. C.B., 2012 NSSC 358 Justice Jollimore determined an application by the Minister for an order for permanent care and custody without provision for access for the Respondent mother. In granting the Minister’s application, Justice Jollimore offered the following analysis commencing at paragraph 19:
[19] The purposes of the Children and Family Services Act are to protect children from harm, to promote the family’s integrity and to assure children’s best interests. These purposes are expressed in the Act’s preamble and they are also repeated in the articulation of “best interests” found in subsection 3(2).
[20] In Children and Family Services Act proceedings, the children’s best interests are paramount. At different points in a child protection application, the Act directs me to consider “the best interests of a child” when making an order or a determination. When that happens, subsection 3(2) dictates that I consider those of enumerated circumstances which are relevant.
[21] This is an application to review a temporary care and custody order. Section 46 of the Children and Family Services Act outlines the process I’m to follow in this review. Before I make an order in a review, I must consider: whether the circumstances have changed since the previous disposition order was made; whether the plan for the children’s care applied in that order is being executed; the least intrusive alternative that’s in the children’s best interests; and whether the requirements of subsection 46(6) have been met. Subsection 46(6) says that I may make a further temporary care and custody order unless I am satisfied that the circumstances which justified the earlier order are unlikely to change within a reasonably foreseeable time that doesn’t exceed the statutory deadline.
. . .
[33] The Minister asks that I order the children be placed in its permanent care and custody pursuant to section 42(1)(f). Before I may do this, I must consider subsections 42(2) and 42(4) of the Act. The former section mandates that I do not make an order that removes the children from their mother unless I am satisfied that less intrusive alternatives have been tried and have failed, have been refused, or would be inadequate to protect them. The latter section instructs that I shall not make a permanent care and custody order unless I am satisfied that the circumstances which justify the order are unlikely to change within a reasonably foreseeable time, not exceeding the maximum time limits. I have already addressed the latter point, above, but will return to it, briefly, below.
. . .
[42] According to subsection 42(3) of the Children and Family Services Act, I am not to place children in the Minister’s permanent care and custody without considering whether there is a possible placement with a relative, neighbor or other member of the children’s community or with extended family. Here, no such placement has been identified for J or C.
….
[183] In Mi’Kmaw Family and Children Services v. KDo, 2012 NSSC 379 Justice Forgeron considered an application for permanent care and custody. Justice Forgeron identified the following principles commencing at paragraph 18:
[18] In this case, the agency is assigned the burden of proof. It is the civil burden of the proof. The agency must prove its case on a balance of probabilities by providing the court with “clear, convincing, and cogent evidence”: C. (R.) v. McDougall, 2008 SCC 53. The agency must prove why it is in the best interests of the children to be placed in the permanent care and custody of the agency, according to the legislative requirements, at this time.
[19] In making my decision, I must be mindful of the legislative purpose. The threefold purpose is to promote the integrity of the family, protect children from harm, and ensure the best interests of children. The overriding consideration is, however, the best interests of children as stated in sec. 2(2) of the Act.
[20] The Act must be interpreted according to a child centred approach, in keeping with the best interests principle as defined in sec. 3(2). This definition is multifaceted. It directs the court to consider various factors unique to each child, including those associated with the child’s emotional, physical, cultural, and social development needs, and those associated with risk of harm.
[21] In addition, sec. 42(2) of the Act states that the court is not to remove children from the care of their parents, unless less intrusive alternatives have been attempted and have failed, or have been refused by the parent, or would be inadequate to protect the children.
[22] When a court conducts a disposition review, the court assumes that the orders previously made were correct, based upon the circumstances existing at the time. At a review hearing, the court must determine whether the circumstances which resulted in the original order, still exist, or whether there have been changes such that the children are no longer children in need of protective services: sec. 46 of the Act; and Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.) [1994] 2 S.C.R. 165.
[23] Past parenting history is also relevant as it 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: Nova Scotia (Minister of Community Services) v. Z.S. 1999 NSCA 155 at para. 13; Nova Scotia (Minister of Community Services) v. G.R. 2011 NSSC 88, para. 22, as affirmed at Nova Scotia (Minister of Community Services) v. G.R. 2011 NSCA 61.
[184] In Nova Scotia (Community Services) v. A.W., 2014 NSSC 393, Justice Haley determined an application for permanent care and custody. His Lordship offered the following comments with respect to determination of an application for review pursuant to section 46:
[92] 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. C.M., [1994] S.C.J. No. 37 (SCC), where the Court held that, at a Status Review Hearing, it is not the Court’s function to retry the 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 at paragraphs 35, 36, and 37: …
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 is a consideration 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 the absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time.
[185] In Nova Scotia (Community Services) v. R.F., 2012 NSSC 125, Justice Jollimore determined the Minister’s application for permanent care and custody. Justice Jollimore indicated as follows at paragraph 178:
[178] Sections 22(2)(b), (g) and (ja) of the Children and Family Services Act are the bases for the Minister’s application. Each of these sections refers to “substantial risk” of physical harm or emotional harm. “Substantial risk” means “a real chance of danger that is apparent on the evidence” according to section 22(1) of the Act. The Minister is to prove that there is a real chance of the described harm that must be proved to the civil standard. The Minister need not prove that this harm will actually occur on a balance of probabilities.
Legal Analysis
[186] The Minister is seeking an order for permanent care and custody with respect to the children GB and BB.
[187] The Minister bears the burden of proof in establishing that an order for permanent care and custody would be in the best interests of the children. Case authorities confirm that the burden of proof is the civil burden based on balance of probabilities (F.H. v. McDougall, 2008 SCC 53).
[188] In determining whether or not the burden of proof has been met in any given case it is the responsibility of the trial judge to review or scrutinize all of the evidence with care before determining the application.
[189] The purpose of the Children and Family Services Act as set forth in section 2(1), namely, to protect children from harm, promote the integrity of the family and assure the best interests of children must be borne in mind.
[190] Similarly it is important to acknowledge that in all proceedings under the Act the paramount consideration is the best interests of the child as per section 2(2). That provision confirms the need for a child-focused or centric approach to the determination of child protection proceedings.
[191] Section 3(2) offers considerable assistance by identifying various circumstances that are to be considered in determining best interests. Nevertheless, the determination of best interests is a challenging task. This case was no exception.
Need of Protective Services
[192] The Minister maintains that the children are in need of protective services in accordance with section 22(2), subparagraphs (b), (g), (f) and (k). A protection finding was made September 2, 2014 on the basis of the original application. The court must determine whether or not the children remain in need of protective services at this point in time based upon the evidence presented at trial.
A. Ultimate Reliability of the Children’s Statements
[193] In this particular case the court’s conclusion with respect to the ultimate reliability of the children’s out-of-court statements is critical to the determination of whether or not the children continue to be in need of protection.
[194] In Mi’kmaw Family and Children Services of Nova Scotia v. HF, 2013 NSSC 310, Justice Forgeron considered the agency’s request for a finding that three out-of-court statements made by the child be held to be reliable for the truth of their content. The application for admission of the statements was made pursuant to section 96(3) (b). Justice Forgeron indicated as follows commencing at paragraph 49:
[49] Section 96(3)(b) of the Act was the subject of appellate review in G.A. v. Children’s Aid Society of Cape Breton-Victoria, 2004 NSCA 52 (N.S.C.A.). In this decision, Hamilton J.A. noted the important distinction between criminal and child protection proceedings. She further held that the application of rigid formulas was not appropriate in the child protection context at para. 15, wherein the following was stated:
15 Bearing in mind the context and purpose of the trial judge's exercise of discretion to admit child hearsay pursuant to s. 96(3)(b) of the Act, I am not persuaded it is appropriate to impose any rigid formula for the receipt of such evidence. These are not criminal proceedings where the protections and concerns described in the governing jurisprudence such as R. v. Khan (1990), 79 C.R. (3d) 1 (S.C.C.), R. v. Smith, [1992] 2 S.C.R. 915 (S.C.C.), and R. v. Starr, [2000] 2 S.C.R. 144 (S.C.C.) necessarily arise. Here in the context of child protection proceedings, the discretion granted a trial judge to admit such evidence, whether or not the child in fact ever actually testifies in court, is found in s. 96(3)(b)...
[50] It is not necessary for me to consider whether necessity remains a factor to be proven in light of the specific wording of s. 96(3)(b) because the parties did not advance that argument. Necessity was admitted. Reliability was the sole battle ground. Further, and although I am directed not to apply rigid rules, I must nonetheless consider the issue of reliability in the context of the case law which has developed under the principled approach to hearsay.
[51] The starting point of the analysis is the premise that hearsay statements are presumptively inadmissible: R v. Couture, supra, para. 85. The court has the discretion to nonetheless admit the hearsay statements if the agency proves admissibility through indicia of reliability: R v. Couture, para. 85.
[52] This assessment of reliability involves a two stage process. The first stage, threshold reliability, was discussed and resolved previously. During the second stage, the trier of fact, in this case the court, must assess ultimate reliability based upon the totality of the evidence presented. In R. v. Khelawon, supra, the Supreme Court of Canada held that a functional approach should be adopted when determining factors relevant to the assessment of reliability. In particular, the court should focus on “the particular dangers raised by the hearsay evidence sought to be introduced, and on those attributes or circumstances relied upon by the proponent to overcome those dangers:” para. 93. The presence of corroborating or conflicting evidence is appropriate to consider at both the threshold and ultimate reliability stage: paras. 4, 100.
[53] Paciocco and Stuesser in the Law of Evidence, sixth edition, 2011, list factors that can be considered when determining the inherent trustworthiness of a statement, at p. 125, which factors include statements that are made:
• spontaneously,
• naturally,
• without suggestion,
• reasonably contemporaneously with the events,
• by a person who has no motive to fabricate,
• by a person with a sound mental state,
• against the person’s interest in whole or in part,
• by a young person who would not likely have knowledge of the acts
• alleged, and
• whether there is corroborating evidence.
[54] The authors also list safeguards surrounding the making of the statement that could expose inaccuracy or fabrications at p. 125 of their text, which provides the following list of questions:
• Was the person under a duty to record the statements?
• Was the statement made to public officials?
• Was the statement recorded?
• Did the person know the statement would be publicized?
[195] As in H.F., supra, the issue of threshold reliability of the children’s out-of-court statements has been determined by way of a voir dire. Ultimate reliability of the out-of-court statements, as admitted at the conclusion of the voir dire, is the issue that must now be considered having regards to all of the evidence presented. In deciding this issue I have attempted to adopt a functional approach as mandated by the Supreme Court of Canada. I would confirm that I have reviewed each of the statements and provided reasons for my decision on the issue of ultimate reliability having regards to the totality of the evidence. I acknowledge that I am not obligated to utilize a rigid formula when exercising my discretion to admit evidence under section 96(3), given the Court of Appeal decision in G.A. v. Children’s Aid Society of Cape Breton – Victoria, 2004 NSCA 52.
Videotaped statements of AB
[196] The oldest child AB participated in two separate video statements given at the local RCMP detachment on April 1, 2014 and September 24, 2014. The statements were not identical however the information provided by AB during both interviews was fairly consistent. AB appeared to be quite comfortable during both interviews and readily answered the questions that were put to her. Open-ended and non-leading questions were generally used with some exception during both interviews. In several instances AB provided lengthy narrative responses to the questions posed and during the course of her answers appear to spontaneously offer information not necessarily related to the question. In both interviews AB described specific incidents between her adoptive sister KB and her adoptive parents. One incident involved DB clawing KB’s back and the other incident involved CB hitting KB with a broomstick.
[197] Circumstances which negate reliability
• the statements were not given under oath
• there was no discussion of the distinction between truth and lies during either interview
• the disclosures made during the interviews were not contemporaneous
• the information provided by AB was inconsistent with the information provided by KB, BB and GB on April 2, 2014
• AB may have had a motive to fabricate
• possibility of collusion
[198] Circumstances which support ultimate reliability
• the interviews were videotaped interviews involving the participation of an RCMP officer and trained social worker
• open-ended or non-leading questions were generally utilized during both interviews
• AB appeared to spontaneously offer information during her responses to questions
• AB presented in both interviews as polite, well-spoken and mature
• AB’s disclosures were consistent with and corroborated by the disclosures made by KB in her video statement of September 24, 2014
• some of the disclosures made by AB during the September 24 interview were also consistent with the disclosures made by BB and GB in their videotaped statements
[199] AB’s statements are consistent with and corroborated by KB in her video statement taken at the RCMP detachment on September 24, 2014. KB described the incident where CB hit her with a broomstick. She also confirmed the incident where her mother scratched her on her back. There are inconsistencies between the recorded statements but I find that the inconsistencies are not sufficient or adequate to warrant or justify exclusion of AB’s statements.
[200] I would again note that portions of AB’s September 24 interview are also consistent with the videotaped statements obtained from the children BB and GB. AB spoke of BB being spanked for peeing himself at night. BB confirmed this in his video statement. AB also talked of the wooden rod, identified as “Mr. Rollie”, being used to hit only GB. During her video statement GB confirmed that she had been spanked with a stick and she later indicated that no one else did. GB also confirmed that BB got spanked for peeing the bed. During a therapy session GB spontaneously identified a wooden dowel as a little “Mr. Rollie”. Again there are certainly inconsistencies between the children’s statements but the inconsistencies are not sufficient or adequate to warrant or justify exclusion of AB’s evidence. Indeed I think it is reasonable to suggest that lack or absence of inconsistencies would have raised an obvious concern with respect to the reliability of the statements.
[201] In determining the issue of ultimate reliability in relation to AB’s video statements I have taken into consideration the argument made by Respondents’ counsel that AB’s motivation for such statements was based upon her upset or disappointment with her parents’ decision to change schools in order to limit her contact with a teacher who AB reportedly had a crush on. While the evidence does indicate and confirm that AB was upset with her parents’ decision, on balance I’m unable to conclude that it provided motive for her to fabricate her allegations of abuse, especially in light of the similar allegations made by the other children.
[202] I have also considered the significance of the inconsistent statements obtained from the three younger children on April 2, 2014. In essence all three children when interviewed on that date denied any abuse on the part of the Respondents and did not provide or disclose any information supportive of AB’s allegations. KB denied that the allegations made by AB were true. The RCMP officer involved in KB’s interview on April 2 felt that she appeared truthful.
[203] During an interview with agency worker Alison MacDonald on July 14, 2014 KB stated that before she and the two younger children were interviewed on April 2, the Respondent DB had them memorize answers to the agency’s possible questions. KB indicated that she could not tell the truth previously because of the need to obey her mother, and indicated that if the children did not obey they would get hurt. KB had provided similar information to her foster parent MM on July 12 indicating that after agency social workers came to visit the home her parents had sat her and her two younger siblings at a table and had a rehearsal about how they would respond to questions if interviewed. They were told to say no if they were asked whether they were ever hit, yelled at or spanked. As of April 2, 2014 all three children were still living with the Respondents and it was the Respondents who transported them to and from the interview at the agency on April 2, 2014.
[204] I accept KB’s explanation for the children’s denial on April 2, 2014. It is interesting to note its similarity to information that the Respondents’ son CNB gave during a mental health assessment in November 2011. The mental health records confirm that CNB reported that he lied to Children’s Aid as a youth about his parents being abusive because he feared he would be abused more (exhibit 37, page 51). KB’s explanation is also consistent with the information AB provided to social worker Alison MacDonald on April 22, 2014 when AB stated that her parents were convincing when the agency came to the home and the children were not allowed to tell anyone what was happening because they had to be loyal to the family (affidavit of Alison MacDonald sworn June 25, 2014, exhibit 6, tab 1, paragraph 37b.).
[205] The Respondents have also suggested that the children have colluded with respect to their allegations. The fact that the children have made somewhat similar, but not identical, allegations does not warrant or justify a finding of collusion. Based upon a careful review of all of the evidence I’m unable to conclude that the children entered into an agreement to fabricate allegations against the Respondents. The various ages and stages of development of the children in my opinion makes the possibility of collusion unlikely. The fact that the statements made by the children are not consistent in every respect or detail also justifies this conclusion. I believe that the similarities in the information provided by the children, without the information being identical, is an indication of reliability, not collusion.
[206] The fact that the children have had contact with each other since the taking into care does not justify a finding of collusion. The children are siblings by adoption and it is reasonable and consistent with their best interests that they be afforded the opportunity for continued contact. Such contact in and of itself does not justify an inference of collusion in the absence of any evidence indicating a legitimate basis for the concern.
[207] It has also been argued that the three younger children have fabricated allegations of abuse because they prefer the lifestyle of their foster homes to the lifestyle of the Respondents. Again based upon a careful review of the evidence I am unable to conclude that this is a likely motivation for the children’s allegations.
[208] Given AB’s age and obvious maturity I do not consider a discussion of truth or lies to be required or necessary.
[209] On balance I therefore find that the Minister has adequately established the ultimate reliability of both of AB’s video recorded out-of-court statements.
AB’s statement to Alison MacDonald
[210] Circumstances that negate ultimate reliability include the following:
• statement was not made under oath
• no discussion of distinction between truth and lies
• the statement was not videotaped or recorded
• disclosures made were not contemporaneous
• disclosures were inconsistent with the three other children’s statements as provided April 2, 2014
• possibility of motive
• possibility of collusion
[211] Circumstances which favour ultimate reliability include the following:
• AB did not know the reason for the interview in advance
• the interviewing social worker prepared notes based upon the interview, contemporaneous with the interview
• the worker used the StepWise protocol
• AB was observed to engage readily and answered questions thoughtfully
• consistency with prior statements
[212] On balance I also find that the Minister has adequately established the ultimate reliability of AB’s statement to Ms. MacDonald on April 22, 2014 as referred to in the affidavit of Alison MacDonald sworn June 25, 2014, contained in exhibit 6, tab 1, and paragraph 37. This interview took place at the agency office. The worker prepared case notes based upon the interview. The StepWise interview procedure was utilized. Only the worker and AB were present. AB readily engaged in conversation with the worker and the worker observed that AB appeared to answer the questions thoughtfully and maintained eye contact. There is consistency between the information provided by AB during this interview and the information she provided during her April 2 RCMP interview.
BB’s videotaped statement
[213] Circumstances which negate reliability include the following:
• statement was not given under oath/the age of the child
• inconsistency with earlier interview on April 2, 2014
• leading questions were used at different points during the interview
• possibility of motive
• possibility of collusion
[214] Circumstances which favour ultimate reliability include the following:
• the interview was recorded in the presence of an RCMP officer and trained social worker
• a discussion of truth and lies occurred at the outset of the interview and BB appeared to appreciate the distinction
• BB appeared cooperative throughout
[215] The Minister has adequately established the admissibility/ultimate reliability of BB’s video statement taken September 24, 2014. The interview was undertaken at the local RCMP detachment. BB was cooperative throughout the interview. At the outset of the interview there was a brief discussion about the difference between a truth and a lie. The child indicated an understanding of the distinction. The videotape and associated transcript provides an objective record of the statement. In my decision at the conclusion of the voir dire I acknowledged that some leading questions were utilized during the interview and that the involved RCMP officer and social worker on occasion asked questions concurrently. In my decision I confirmed that various portions of the videotaped interview and associated transcript were to be excluded or struck based upon the use of leading questions which effectively negated the reliability of the responses provided by BB.
[216] Again I have considered the Respondents’ concern that BB may have a motive to be untruthful. As indicated earlier I find that the evidence does not support or justify such a finding. Similarly the evidence does not support a negative finding on ultimate reliability due to collusion.
[217] I have also taken into consideration the fact that BB gave inconsistent or contradictory information during his interview on April 2. However I would again confirm my conclusion that the explanations as offered by KB are the most plausible and likely explanation for BB’s contradictory interviews.
BB’s statement to Anna Galvin on October 20, 2014
[218] Circumstances which negate ultimate reliability include the following:
• statement not made under oath
• possibility of collusion
• possibility of motive
[219] Circumstances which support admissibility/ultimate reliability include the following:
• a trained social worker utilized the StepWise protocol
• the worker prepared case notes based upon the interview and contemporaneous with the interview
• the worker observed that BB was comfortable during the interview and maintained good eye contact throughout
[220] The Minister has also adequately established the admissibility of BB’s statement to social worker, Anna Galvin, on October 20, 2014, as referred to in Ms. Galvin’s affidavit of January 9, 2015, exhibit 6, tab 11, at paragraph 20. This interview occurred at BB’s request. The interview took place at the foster parent’s home. The worker and BB sat at the dining room table and the foster parent was in the kitchen out of their line of vision. Ms. Galvin testified that BB appeared comfortable and maintained good eye contact. She used open-ended questions during the interview consistent with the StepWise interview protocol. She prepared case notes based upon the interview. The notes were prepared contemporaneous with the meeting.
[221] While BB does indicate during the interview that he does not wish to attend a Mennonite Church and does not like wearing Mennonite clothing I’m unable to conclude that these issues or concerns were the motivating factor behind his request to meet with the worker or what he told her. Indeed during the meeting with the worker BB talked about how he was feeling and expressed his concern about access visits with the Respondents based upon the fact that he felt that the Respondents were pretending to be nice during visits whereas they were not nice to him before he came into foster care.
[222] Again in determining the ultimate reliability of the statement I have considered the reliability concerns raised by the Respondents. Having regards to all of the evidence, I find that ultimate reliability has been adequately established and that the statement is admissible.
BB’s statement to Anna Galvin on January 26, 2015
[223] BB’s statement to social worker Anna Galvin on January 26, 2015, (exhibit 7, tab 4, and paragraph 15) is also admissible. The conversation between the worker and BB occurred at the foster home. The worker prepared case recordings following the conversation in order to document it. The worker used the StepWise principles for purposes of the interview. The interview was conducted in private. The worker noted that BB was eager to engage and she had no concerns regarding his demeanour. Again I have considered the reliability issues or concerns as raised by the Respondents. I have again considered factors that would negate reliability and those that support reliability in determining the issue of ultimate reliability. I have concluded having regards to all the evidence that ultimate reliability has been adequately established and therefore the statement is admissible.
BB’s statement to foster parent on July 15, 2014
[224] BB’s statements to his foster parent on July 15, 2014 (exhibit 12, paragraph 10) is also admissible. The foster parent confirmed that this was a spontaneous conversation between herself and BB which occurred at BB’s bedtime. She did not ask questions or attempt to prompt. She reported the information to a social worker or supervisor as soon as possible. The foster parent did not initiate the conversation or suggest topics. On balance, weighing factors that tend to negate reliability with those that support reliability, I’m again satisfied as to the ultimate reliability of this statement.
GB’s videotaped statement of September 24, 2014
[225] Circumstances which negate ultimate reliability include the following:
• the statements were not made under oath/the age of the child
• discussion of truth and lies did not occur at the outset of the interview
• leading questions were utilized during the interview
• at the outset of the interview the child was upset and at subsequent points during interview the child appeared tired
• inconsistency with April 2 interview
• possibility of motive based upon preference for lifestyle at foster home
• possibility of collusion
[226] Circumstances which support admissibility/ultimate reliability include the following:
• the interview was videotaped
• GB’s responses to non-leading questions included disclosures of physical abuse
• consistency between GB’s disclosures and the disclosure provided by AB and BB
• while initially upset the child calmed fairly quickly after the foster parent left the interview room and did not appear to be in distress during the balance of the interview
[227] The Minister has adequately established the admissibility of GB’s video statement of September 24, 2014, subject to the redactions as confirmed in the court’s decision at the conclusion of the voir dire.
[228] The interview took place at the local RCMP detachment. This was a joint interview involving an RCMP Constable and social worker. At the outset of the interview the child appeared upset and did not wish the foster parent to leave the interview room. Eventually the foster parent was able to leave and the child seemed to settle and calm fairly quickly. The video and associated transcript provide an accurate and reliable account of the interview. Constable LeBlanc agreed with the suggestion that she would have used a different approach towards the interview than that adopted by the social worker and that she would have avoided leading questions.
[229] The social worker Aleeta Cowan acknowledged that she used some leading questions during the interview but confirmed that not all questions were leading.
[230] In my oral decision on threshold reliability I excluded portions of the video and associated transcript based upon use of leading questions which negated the reliability of the child’s responses. In doing so I acknowledged the challenges associated with interviewing children, especially younger children such as GB. While acknowledging that it may be appropriate to use some leading questions during such an interview, I also emphasized the importance of limiting the use of leading or closed questions as much as possible.
[231] In concluding that ultimate reliability has been established with respect to GB’s video statement, as admitted at the conclusion of the voir dire, I would note that information provided during the interview is consistent with information provided by AB and BB. By way of example, in her September 24 statement GB confirmed that she was spanked at her parents’ home and that she was spanked with a stick. She also indicated that BB would get spanked for peeing the bed. Based upon my review of the evidence I am unable to conclude that any of the concerns or issues raised by the Respondents would justify non-admission of the statement.
GB’s statement to Anna Galvin
[232] GB’s statement to social worker Anna Galvin on March 2, 2015, as set forth in exhibit 7, tab 4, at paragraph 32 is also admissible. The worker testified that she had not gone to the child’s foster home that day specifically to see GB but to see another child. GB approached the worker and asked to speak with her. The worker acknowledged that this was not a formal interview but she nevertheless used the StepWise protocol. GB asked to speak to the worker in private. Their conversation took place in the child’s bedroom. Ms. Galvin testified that the child maintained eye contact during the conversation and talked clearly. The worker confirmed that she wrote down what the child said immediately and entered it into the agency case recording system right away. Given the circumstances relating to the statement I am satisfied as to its ultimate reliability and confirm its admissibility. I’m unable to conclude that the issues or concerns raised by the Respondents would justify exclusion of the statement.
KB’s videotaped statement
[233] Circumstances which negate ultimate reliability include the following:
• not under oath
• inconsistent with statement provided on April 2, 2014
• risk of fabrication/exaggeration
• motive
• possibility of collusion
[234] Circumstances which support ultimate reliability:
• videotaped interview
• discussion of truth and lies at the outset and demonstration of understanding of the distinction
• absence of leading questions
• child responded to questions in a free-wheeling narrative style providing information spontaneously
• disclosures consistent with the disclosures made by AB albeit not identical
[235] I find that the Minister has also established the admissibility of the video statement of KB as made September 24, 2014. The statement was provided at the local RCMP detachment. The interview involved an RCMP officer as well as a social worker. There was a discussion with respect to truth and lies at the outset of the interview and KB demonstrated quite clearly an understanding or appreciation of the difference between a truth and a lie. KB had no difficulty engaging in the interview process albeit she appeared somewhat hyperactive. She engaged in a lengthy and rambling narrative type responses to questions. She appeared prone to exaggeration on occasion.
[236] Once again in determining the issue of ultimate reliability of KB’s video statement I have considered the obvious and serious inconsistency between her statement of April 2, 2014 and her September 24 statement. As noted earlier I accept KB’s subsequent explanation for the inconsistency.
[237] I have also again considered the issues or concerns as raised by the Respondents with respect to the reliability of the statement. Again I have concluded that these issues or concerns do not warrant or justify exclusion of the statement. The fact that there was a possibility for collusion or collaboration between the children does not justify the inference that it likely occurred.
[238] In concluding that the statement is admissible I also note the consistency between the information that KB provided during the interview with the information provided by the other children.
[239] The Respondents have expressed considerable concern with respect to KB’s credibility. They maintained that KB is prone to lying. However the fact that KB may have lied on other occasions does not mean that she lied throughout her video statement. On the other hand I observed KB’s tendency to exaggerate in the video statement and I have given that issue careful consideration in determining the ultimate reliability of KB’s statement and in determining the protection issue. On balance I am satisfied that the statement passes the ultimate reliability test.
KB’s statement to Alison MacDonald
[240] I find that the Minister has also established the admissibility of KB’s statement to social worker Alison MacDonald on July 14, 2014, as set forth in Ms. MacDonald’s affidavit of July 16, 2014 (exhibit 6, tab 3, and paragraph 7). Ms. MacDonald confirmed during her testimony that her interview with KB on July 16 utilized the StepWise interview procedure. The interview took place at the agency boardroom. Open questions were used during the interview. Ms. MacDonald testified that KB started talking at the outset of the interview and it was a free narrative by the child.
[241] The information provided by KB on July 14, 2004 is in many instances consistent with the information which AB provided in her statements. She confirmed that DB would have AB hit her, the incident where her father hit her with a broomstick, and the incident where her mother scratched her back, that BB was spanked when he wet the bed and that her mother used a rod named “Mr. Rollie” for discipline.
[242] Once again I have considered the issues or concerns raised by the Respondents with respect to reliability in determining the admissibility of this statement.
KB’s statement to foster parent
[243] The statement made by KB to foster parent MM on July 12, 2014 is also admissible. The statements are set forth in the affidavit of MM sworn June 23, 2015, exhibit 11, paragraph 9. This was a conversation between KB and her foster parent that occurred at the foster parent’s home. The foster parent asked KB how she was doing and if she had any concerns and KB proceeded to make various statements. The statements made were offered spontaneously by KB and not as a result of specific questions. The foster parent did not record the conversation but immediately contacted the agency to report what KB had said. Reporting of the information was confirmed by social worker Anna Galvin (see affidavit of Anna Galvin sworn January 9, 2015, exhibit 6, tab 11, and paragraph 40).
[244] In determining on balance that the statement is ultimately reliable I would note that the information that KB provided on July 12 is similar or consistent with information that she subsequently provided in her video statement on September 24. Again some of the information provided is consistent with information provided by the other children. In determining ultimate reliability I have once again considered the issues or concerns as raised by the Respondents.
KB’s statement to Anna Galvin
[245] I have also concluded that the statements made by KB to social worker Anna Galvin on October 10 and October 30, 2014 are also admissible. (See affidavit of Anna Galvin sworn January 9, 2015, exhibit 6, tab 11, paragraphs 47 and 48.) Once again in determining threshold liability with respect to the statements I have considered the issues or concerns as raised by the Respondents with respect to KB’s credibility. I am unable to conclude that KB’s statement should be rejected or viewed as ultimately unreliable because of a propensity to lie. As noted, KB’s statements are, in many instances, consistent with the disclosures made by her siblings. The fact that her disclosures are not identical with the disclosures made by the other children is a factor that supports admissibility. There is no evidence indicating that any of the statements made by KB or any of the other children were presented in a manner that would suggest that the information had been rehearsed. Many of the children’s disclosures, including KB’s disclosure on July 12, were obviously spontaneous. The fact that there are discrepancies or distinctions between the children’s statements is understandable given the ages and developmental stages of the children and their differing perspectives. Again, balancing the relevant factors or circumstances I’m satisfied as to the admissibility of the statement.
[246] There is other evidence that is consistent with the children’s statements.
[247] Doreen Coady Shadbolt testified that during her sessions with KB, KB disclosed that she had been hit with a broom. She also described a session with the child GB where a bag of small dowels used for activities fell from a shelf and GB immediately reacted by stating “hey it’s a little Mr. Rollie.”
[248] The Respondent CB provided some historical context for the children’s reference to “Mr. Rollie”. In his statutory declaration, sworn June 28, 2015, exhibit 28, commencing at paragraph 44, CB indicates that the term “Rollie” was referenced in a book used by a minister who conducted a church bible study on Christian parenting, in 1998 or 1999, which the Respondents participated in. The study apparently advocated not “spoiling the child by sparing the rod”. According to CB the rod was called “Rollie”. CB indicated that he and DB disagreed with the minister over the use of the rod and indicated that the term “Rollie” thereafter became a family joke. CB maintained that the Respondents never used rods as a form of discipline. CB also acknowledged that there were two wooden dowels used to hold rosebushes in place and another dowel used in the powder room to hold up a curtain. While obviously denying the children’s allegations with respect to use of “Mr. Rollie” CB’s evidence does provide an explanation as to the origins of “Mr. Rollie” and confirms that the name refers to a rod used for discipline. The children AB and KB stated that “Mr. Rollie” was used by the Respondents as a means of punishment.
[249] Sonya Paris, Guardian ad Litem for AB and KB submitted several reports. (See reports of Sonya Paris, exhibits 17 and 18.) Ms. Paris confirmed that both children described physical, emotional and verbal abuse in the home of the Respondents.
[250] Accordingly in determining the admissibility of the children’s out-of-court statements, having regards to all of the evidence presented, I have concluded on balance that ultimate reliability has been established and that the statements should be admitted. I offer further comment with respect to the evidence of the Respondents and the Respondents’ credibility in the context of the protection finding.
B. Protection Finding
[251] Having concluded that the children’s out-of-court statements meet the ultimate reliability test I must now determine whether or not the children are in need of protective services pursuant to section 22(2), subparagraphs (b), (f) and (g).
22 (1) In this Section, "substantial risk" means a real chance of danger that is apparent on the evidence.
(2) A child is in need of protective services where
(a) the child has suffered physical harm, inflicted by a parent or guardian of the child or caused by the failure of a parent or guardian to supervise and protect the child adequately;
(b) there is a substantial risk that the child will suffer physical harm inflicted or caused as described in clause (a);
…
(f) the child has suffered emotional harm, demonstrated by severe anxiety, depression, withdrawal, or self-destructive or aggressive behaviour and the child's parent or guardian does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm;
(g) there is a substantial risk that the child will suffer emotional harm of the kind described in clause (f), and the parent or guardian does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm;
[252] The Minister also maintained that the children were in need of protection under subparagraph (k). The Respondents at time of trial were subject to Provincial Court undertakings that required them to abstain from communication with the children or going to their place of residence without the Minister’s approval. In essence the Minister maintained that the undertakings meant that the Respondents were “unable” to resume care and custody as per subparagraph (k). However counsel for CB advised the Court on Feb 4, 2016 that the undertakings had been discontinued as a result of a stay of the Criminal proceedings against the Respondents. Given this change in circumstance I find that there is no longer any basis to support the Minister’s request for a finding under (k).
[253] I am not prepared to accept the Respondents’ denial of physical abuse or their contention that any physical discipline utilized was limited to corrective measures only, involving spanking of the two younger children on a couple of occasions and only as a last resort. I accept the evidence of the children respecting the Respondents’ use of physical discipline in preference to the evidence of the Respondents. I find the children’s statements regarding use of physical discipline by the Respondents to be more reliable than the Respondents’ denial.
[254] In assessing credibility I have taken note of the comments made by Justice Forgeron in Baker-Warren v. Denault, 2009 NSSC 59 as well as the decision of Justice Warner in Novak Estate (Re), 2008 NSSC 283.
[255] The Respondents have said different things on different occasions in denying the children’s allegations.
[256] During an interview with agency workers on April 2, 2014 the Respondent DB denied physically disciplining the children. In her affidavit sworn July 1, 2015, DB indicates at paragraph 87 that spanking was used on occasion as a last resort. At paragraph 88 the Respondent maintains that spanking was used as a corrective measure only and that BB was only ever spanked once or twice because he was lying persistently. At paragraph 89 she indicated that GB was spanked infrequently as a corrective measure.
[257] During his interview with Debra Garland CB noted spanking BB once for not listening. In his statutory declaration sworn June 28, 2015, at paragraph 31, CB indicated that the worst discipline he ever had to use on BB was when he lied a couple of times and he received a spanking. He indicated that this happened in total two times. According to CB the reason BB was spanked was because he was constantly lying.
[258] The reliability of the Respondents’ evidence with respect to physical discipline has to be assessed in light of the fact that the Respondents repeatedly signed documents acknowledging that they would use other means of discipline other than corporal punishment when disciplining the children. Exhibit C to the affidavit of Alison MacDonald sworn July 16, 2014 (exhibit 6, tab 3) contains copies of several Statements of Understanding between the Respondents and the Department of Community Services as well as attached Department of Community Services Policy of Standards of Discipline in Adoption/Foster Homes. In these documents the Respondents acknowledged that they had reviewed the Department’s discipline policy and confirmed their willingness to follow the policy. The first paragraph of the policy document concludes with the following statement “Policy does not permit the use of physical punishment for children of all ages.” The Respondents each signed similar such documents on multiple occasions.
[259] The Respondents acknowledge spanking of both BB and GB. It is clear that they did not consider themselves bound by the Department’s policy despite their written agreement to comply.
[260] Exhibit C to the Respondent DB’s affidavit, exhibit 21, is comprised of a number of certificates of accomplishments confirming DB’s participation in various courses offered by the Department of Community Services for foster and adoptive parents. A total of 15 certificates of accomplishment were received by DB during the period 2008 to 2013. Each certificate is signed by a representative of the Department of Community Services. In addition DB received four certificates from the Federation of Foster Families confirming successful completion of programs. Many of the courses were part of the Department’s PRIDE training program for foster and adoptive parents which includes emphasis on the department’s policy prohibiting physical discipline.
[261] The evidence of DB offers an explanation for the Respondents’ use of physical discipline. DB testified that she remembered signing the agency’s discipline policy however she indicated that she thought it was only applicable to foster children and then went on to suggest that in any event physical discipline involving the use of a hand was only used as a last resort. However DB also acknowledged that she understood that the Minister’s discipline policy meant that spanking was not okay but when asked if she considered herself bound by the policy post adoption she responded “not necessarily”. DB then went on to refer to a letter that they had received following adoption indicating that they now had all the rights as if the children were born to them. She then proceeded to suggest that physical discipline was okay if done in a proper manner. When it was suggested to DB that her training as a foster parent confirmed that physical discipline is not acceptable she replied by indicating that she couldn’t remember what book indicated that so she wasn’t able to comment. Given the nature and extent of DB’s training it is simply not credible for DB to suggest that she thought that the training was only applicable to foster children or that she could ignore the training after the children were adopted.
[262] Later DB once again testified that the children were in the home for one and a half years following adoption before she ever spanked one of them. She went on to explain that what happened was that BB was getting a lot like KB and he was lying without consequence or reward. BB was adopted in May 2013. The difficulty with DB’s suggested time line is that the taking into care of KB, BB and GB was June 19, 2014 a little more than a year after BB and KB were adopted.
[263] DB also disputed the testimony of Kerstin Schauss. Ms. Schauss testified that the therapy she was providing for BB was terminated without notice and without discussion. DB simply stopped the therapy. Ms. Schauss was concerned that the therapy was terminated without her concurrence and without an appropriate final or closing session. DB maintained in her evidence that Ms. Schauss indicated that she did not need to continue BB’s counseling. I accept the evidence of Ms. Schauss in preference to DB’s testimony. Ms. Schauss was clearly troubled by the manner in which her involvement with BB had concluded and was concerned for BB’s welfare. She had had a closing session with KB when her therapy had concluded and I am satisfied that she would have ended BB’s therapy in a similar manner if she had had the opportunity. DB’s decision to end the therapy unilaterally was not in BB’s best interests.
[264] Casework supervisor Harvey Bate confirmed during his testimony that there had been a prior agency protection proceeding relating to the Respondents’ biological daughter AP. AP alleged that her parents hit her with a belt and at another point the file confirms that she alleged that she was hit with a broom. According to Mr. Bate the Respondent DB initially admitted to the use of the belt but said it occurred on just one occasion and was used as a last resort. The agency file materials confirm this. Subsequently DB denied use of the belt. DB denied any abuse of AP in her affidavit.
[265] I have considered the totality of the evidence in evaluating and assessing the Respondents’ credibility. Based upon consideration of all relevant factors I have concluded that both Respondents are lacking in credibility when it comes to their denial of the children’s allegations. The Respondents have said different things on different occasions about the use of physical discipline. Their assertion that any discipline utilized was always corrective is obviously strategic and self-serving.
[266] In the end result, having regards to all the evidence, on balance I have concluded that the evidence of the children is more reliable than that of the Respondents.
[267] In Minister of Community Services v. C.C., 2015 NSFC 15, Her Honour Judge Dewolfe considered an application by the Minister to find a child in need of protective services. The Minister was requesting a protection finding based upon the 10 year old child’s disclosure that he had been spanked by the Respondent. In her decision Her Honour Judge Dewolfe confirmed that the only reasonable conclusion to be drawn based upon the evidence was that the bruising was caused by the Respondent’s spanking. Judge Dewolfe then indicated as follows at paragraph 22:
[22] Parents and guardians are permitted to spank as reasonable corrective discipline: Canadian Foundation for Children, Youth and The Law v. Canada (A.G), 2004 SCC 4. However, the SCC limits physical discipline to reasonable measures. Blows with an object are not “reasonable”. They must be “…corrective, which rules out conduct stemming from the caregiver’s frustration, loss of temper or abusive personality…”
[23] In this case I find that the corrective force used by C.C was excessive, and caused J physical harm. I also find that the spanking was administered out of frustration. C.C’s evidence is that J was disrespectful and uncooperative after his return from his mother’s home five days earlier. I do not accept C.C’s evidence that J asked for the spanking, and that she remained calm in the face of disrespectful comments by J. Her evidence is self-serving and not credible.
[24] C.C has not admitted wrongdoing. Her circumstances are unchanged since May 15, 2015. I find that J would remain at substantial risk of physical harm if returned to C.C’s care. I therefore find that J meets the definition of a child in need of protection pursuant to s. 21(1) and s.22(2)(a) and (b) of the Act.
[25] The Court also finds that J is at substantial risk of emotional harm as defined by s. 22(1) and s.22(2)(f) and (g) of the Act.
[268] Based upon my review of the evidence I am satisfied that the physical discipline utilized by the Respondents was inappropriate, involving use of excessive force and use of objects such as a spatula, wooden spoon, wooden rod and broomstick.
[269] During an interview with Debra Garland, psychologist, CNB told Ms. Garland that he and his sister were disciplined with a belt. At trial CNB tried to maintain that Ms. Garland misunderstood the information he had provided. Ms. Garland maintained that her notes made at the time of the interview were accurate and that she had not misunderstood the information provided by CNB.
[270] I will comment further on CNB’s credibility later in this decision however I find that the entries in the mental health records as well as Ms. Garland’s note and recollection of her interview with CNB to be more reliable than CNB’s testimony on these issues.
[271] I find that the evidence supports and justifies the conclusion that there is an historical pattern of use of inappropriate discipline techniques on the part of the Respondents.
[272] The Respondents on multiple occasions signed documentation confirming that they would abide by the Minister’s policy respecting non-use of corporal punishment. Willingness to comply with the policy was a fundamental prerequisite to the Respondents being approved as foster and adoptive parents. The Respondents participated in extensive training and programming intended to assist them in their role as foster parents and later as adoptive parents. The training included emphasis on non-use of corporal punishment for discipline. The children’s evidence justifies the conclusion that the Respondents knowingly chose to ignore their training and the Department’s policy following their adoption of the children.
[273] DB’s testimony supports and justifies the conclusion that the Respondents viewed confirmation of their new role and status as adoptive parents following adoption of KB and BB as a change in status that justified or authorized the use of physical discipline. DB maintained that they did not use physical discipline until after they received written confirmation that the adoption meant that they could now be considered to be their children as if they were their biological children. This testimony on the part of DB is an obvious attempt to somehow justify and rationalize use of physical discipline that is quite simply unacceptable. DB and CB were better educated than most parents as to the inappropriateness of physical discipline and its harmful impact on children. The evidence supports and justifies the conclusion that DB and CB knowingly chose to adopt an approach to discipline which they knew was inappropriate and inconsistent with the best interests of the children.
[274] Even the Respondents’ admission to infrequent spanking of the children is concerning given the reports of both GB and BB that the spanking hurt. The children’s statements support an inference that the force used to spank the children was likely excessive.
[275] Based upon consideration of all the evidence I’ve concluded that the Minister has adequately established that the children are in need of protective services pursuant to subparagraph (b) of section 22(2) of the Children and Family Services Act. Based upon my review of the evidence I find that the Minister has adequately established a substantial risk of physical harm. I’m satisfied on balance of probabilities that the evidence establishes a real chance of danger with respect to future physical harm if the children were to be returned to the Respondents.
[276] In Canadian Foundation for Children, Youth and the Law v. Canada (A.G.), 2004 SCC 4, the Supreme Court of Canada confirmed that corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful. Based upon my review of the evidence I find that the Respondents’ discipline of BB and GB was inappropriate and emotionally harmful involving the use of objects such as a wooden dowel or stick, spatula and wooden spoon.
[277] The children’s therapist, Doreen Coady Shadbolt, indicated that both children have expressed being fearful of their adoptive parents. I find that the children’s fear is a direct result of the Respondents’ inappropriate parenting, involving inappropriate and excessive physical discipline.
[278] I’m also satisfied that the Respondents are unable to consent to services or treatment to remedy or alleviate the harm. The Respondents have had extensive training emphasizing non-use of corporal punishment for discipline. Clearly that training has proven to be ineffective. I accept Debra Garland’s conclusion that there is little likelihood that the Respondents will change their method of discipline and that the prognosis for such change is poor. I am satisfied that the children have suffered emotional harm and therefore are also in need of protective services under subparagraph (f).
[279] With respect to subparagraph (g) I would again note the evidence of Doreen Coady Shadbolt, as per her report of June 7, 2015, confirming that GB requires a stable home environment which is able to teach her emotional regulation skills and encourage exploration and curiosity. In her testimony Ms. Coady Shadbolt indicated that if that type of environment is not provided the child could become emotionally dysregulated and more temperamental and her anxiety might manifest as anger.
[280] Earlier in her report Ms. Coady Shadbolt indicated that GB had made many comments about being fearful of hitting by her adoptive parents and referred to one incident where the child was distressed and fearful that her adoptive parents were at Ms. Coady Shadbolt’s office and were there to take her away.
[281] In relation to BB Ms. Coady Shadbolt indicated that BB during sessions had made comments about being fearful of his adoptive parents and had stated that he no longer wishes to visit them. BB has expressed similar concerns to his social worker.
[282] The parenting of BB and GB by the Respondents involved use of physical discipline. The children were disciplined using objects or items. The emotional impact of such discipline upon children is significant. In this case it manifests itself in BB’s fear of potential return to the care of the Respondents and his refusal to participate in access and GB’s anxiety about being hit by her parents.
[283] I find that the evidence supports and justifies the conclusion that use of inappropriate or excessive physical discipline gives rise to a real chance of emotional harm. I therefore conclude that the Minister has adequately established that there is a substantial risk that the children will suffer emotional harm and therefore BB and GB are also in need of protective services per section 22(2), subparagraph (g).
[284] In finding that the children are in need of protective services under subparagraph (g), I have also concluded that in the circumstances of this case the Respondents are unable to consent to services or treatment to remedy or alleviate the harm. The Respondents have had the opportunity to participate in a myriad of programs intended to assist them in parenting as foster and adoptive parents. These programs emphasized non-use of physical discipline consistent with the Minister’s policy. Despite their participation in these programs and their repeated written acknowledgement of their willingness to comply with the Minister’s policy, the Respondents utilized inappropriate physical discipline techniques when disciplining the children. Indeed the evidence suggests that it is likely that the Respondents also utilized physical discipline with their biological children. Their approach to discipline of children is therefore long-standing and constitutes a pattern of parenting that appears well entrenched. The Respondents have denied the children’s allegations throughout this proceeding. Given these circumstances I have little hesitation in concluding that the Respondents are unwilling or unable to consent to services or treatment to remedy or alleviate the harm.
Best Interests
[285] The legislation confirms that the best interests of the children is the paramount consideration in determining this application.
[286] In determining best interests in this case I have considered the applicable circumstances as referred to in section 3(2).
[287] I have also considered the children’s needs assessments as completed by Ms. Ellsworth, registered psychologist, as well as the parenting capacities assessment submitted by Debra Garland, registered psychologist.
[288] In her assessment report respecting BB, Ms. Ellsworth notes that BB does not present with social, emotional or behavioural concerns but may, at some point, demonstrate some difficulties considering his history. She indicates that it will be important to monitor BB and provide the necessary support to reduce the impact of trauma he experienced. She recommends that BB would likely benefit from trauma-based individual therapy.
[289] In her report relating to GB, Ms. Ellsworth expresses her opinion that overall the child’s behaviours suggest a high level of maladjustment across several areas and is indicative of the trauma and chaos that has been a part of her life. She identifies GB as requiring a significant amount of emotional, social and behavioural support. Included in Ms. Ellsworth’s recommendations is a recommendation for continued individual therapy with a trauma-focused approach.
[290] The parenting capacities assessment submitted by Debra Garland confirms Ms. Garland’s overall conclusion that the Respondents do not have the parental capacity to adequately parent the children. She indicates that “The children will likely require extensive and ongoing therapy for some time to recover and place their trust in another ‘forever home’.”
[291] I have also considered the evidence of Olga Komissarova, registered psychologist, as well as her reports. I have concluded that I am unable to attach much weight or significance to the reports and recommendations made by Ms. Komissarova. Ms. Komissarova was retained immediately prior to trial. She had limited time to complete a report. She had to rely extensively upon collateral source information. She did not arrange to interview the involved social workers or their casework supervisor. She did not have the opportunity to observe any access visits between the Respondents and GB. She did not interview any of the children. In light of time constraints she had to submit an addendum to her initial report. Her report is a psychological assessment and not a parenting capacities assessment.
[292] During cross-examination Ms. Komissarova candidly acknowledged and admitted that she was unable to complete a thorough assessment due to time limitations. At another point during her cross-examination she indicated that she didn’t feel that she received the teamwork she required from some sources. She acknowledged that in other circumstances it might be considered unethical to complete an assessment where time constraints required important information to be left out but she felt she did the best she could in the circumstances.
[293] I am unable to place much weight on Ms. Komissarova’s recommendation that the children be returned to the Respondents. I accept the ultimate conclusions and recommendations of Ms. Garland in preference to the recommendations of Ms. Komissarova. In reaching this conclusion I want to emphasize that I recognize that Ms. Komissarova was placed in a very difficult position as a result of having been retained at the eleventh hour. Unfortunately the timing of her retainer significantly compromised her ability to complete an appropriate assessment report and renders her recommendations unreliable.
[294] I have concluded that the factors listed in section 3(2), subparagraphs (a), (e), (f), (i), (j), (k), (l) and (m) all support and justify the conclusion that an order for permanent care and custody would be in the best interests of the children BB and GB.
[295] While in the care of the Respondents the children were raised in accordance with the Mennonite faith. However the possible or potential benefits associated with the children’s participation in the Mennonite faith are not sufficient or adequate to justify the conclusion that it would be in the best interests of the children that they be returned to the care of the Respondents.
[296] On balance, consideration of the best interests circumstances as referred to in section 3(2) clearly justifies and supports the conclusion that an order for permanent care and custody would be in the best interests of the children.
[297] The children deserve the opportunity to have a ‘forever family’ as referred to by Ms. Garland. The circumstances of this case underscore the heavy burden or responsibility resting upon child welfare authorities to do their utmost to ensure that any proposed adoption placement is consistent with the best interests of the child. Tragically, this case also illustrates that despite systemic safeguards, and the extensive training offered to potential adoptive parents, there are no guarantees associated with adoption placement. However, I am satisfied that an order for permanent care and custody premised upon a plan for adoption provides the best opportunity for successful outcome, provided a high degree of due diligence is exercised in the pursuit of that objective.
[298] In concluding that an order for permanent care and custody would be in the best interests of the children I am satisfied that any less intrusive alternative would be inadequate to protect them.
Possibility of placement per section 42(3)
[299] I also find that placement with the Third Parties CNB and LM would not be consistent with the best interests of the children. I do however accept that their application was made based upon their legitimate concern for the future welfare of the children.
[300] Consideration of CNB’s personal history and background indicate that his request for placement is not appropriate. His mental health history includes struggles with depression and suicidal ideation as well as an overdose on medication. He also has a history of substance abuse. Consideration of CNB’s history and background justifies the agency’s conclusion that potential placement with CNB would not constitute the type of placement recommended by Debra Garland. Ms. Garland recommended that any potential placement should be a stable and blemish-free home. During his cross-examination CNB reluctantly conceded that his parenting plan or proposal would not meet these criteria.
[301] CNB has a positive and close relationship with his parents DB and CB. They live a few minutes apart. CNB did not dispute or question his parents’ denial of the children’s allegations. CNB appeared equivocal when questioned about his position during cross-examination, indicating at one point that he would prefer to wait on the court’s decision. However CNB also testified that he did not see any risk associated with contact between the children and his parents. CNB’s ambivalence and lack of insight is disturbing. I find that there would be a significant risk of harm for the children if placed in the care of the Third Parties, CNB and LM. CNB’s willingness to accept the court’s conclusion with respect to the children’s allegations and comply with any order made by the court does not adequately address the obvious risk.
[302] I did not find CNB to be a credible witness. CNB disputed the statements attributed to him by Debra Garland. I accept Ms. Garland’s evidence as to the information provided by CNB during his interview in preference to the testimony of CNB. Debra Garland’s report and her testimony were based upon notes that she made at time of her interview of CNB. Ms. Garland confirmed that CNB told her that both he and his sister were hit with a belt by his parents. Her notes confirmed this information.
[303] In addition, the information that CNB provided to Debra Garland is consistent with the information that CNB himself provided during his mental health assessment in 2011 as confirmed in his mental health records. CNB attempted to suggest that he lied to mental health when he reported a history of abuse by his parents. His explanation was that he lied because he was angry at his parents and also under the influence of Ativan. However it is again noteworthy that the information that CNB provided at time of his mental health assessment was also consistent with the information that his sister AP had provided to the agency when she was taken into care. CNB attended at mental health for assessment in November 2011 because he was experiencing serious mental health issues at the time. The need for help or assistance was directly linked to what he was going through at the time. There was no need to embellish his situation by lying about a past history of abuse. Indeed in reporting the abuse at time of the assessment CNB advised that he had lied to the agency and denied any abuse within the home when his sister was taken into care. CNB’s evidence would require the court to accept that he was lying about lying. The credibility issue associated with his evidence is obvious. The records also confirm that his explanation for lying to the agency was that he felt that if he didn’t lie he would be abused more. This explanation is strikingly similar to the explanation provided by KB for the information she provided to the RCMP and the agency on April 2, 2014. On balance I find that the information as set forth in the mental health records is more reliable than CNB’s testimony.
[304] In the end result, based upon consideration of all the evidence, I find that it would not be in the best interests of the children to place them with CNB and LM. In reaching this conclusion, I have again considered applicable circumstances as referred to section 3(2). I have also concluded that it is not possible to place BB and GB with any other relative or member of the children’s community.
Consideration of section 42(4)
[305] I’m also satisfied that the circumstances justifying an order for permanent care and custody are unlikely to change within a reasonably foreseeable time having regards to section 42(4). The pattern of parenting involving inappropriate and excessive physical discipline on the part of the Respondents is well-established. The Respondents have had the opportunity to participate in multiple parenting courses or programs, both as foster parents and adoptive parents. They are well acquainted with the Minister’s policy prohibiting use of physical discipline. Despite this knowledge and their extensive training the Respondents knowingly utilized disciplinary practices that were inappropriate and abusive. The Respondents have denied the children’s allegations with the exception of limited and infrequent spanking of BB and GB. Again I accept the testimony of Debra Garland that the Respondents’ denial demonstrates a lack of insight that justifies and supports the conclusion that it is unlikely that the Respondents would be able to effect necessary changes in their parenting, or to achieve adequate parenting, within the foreseeable future.
[306] The Minister takes the position that the outside limit for the proceeding with respect to the child GB would be November 20, 2015, the one year anniversary of the initial interim disposition order (November 20, 2014).
[307] If the date of the initial interim disposition order, November 20, 2014, is utilized to determine the outside limit, then the outside limit for BB would expire 18 months later, on May 20, 2016.
[308] Given the expiration of the outside limit for GB it is clear that the court only has two options, dismissal or permanent care and custody. The court’s finding on the protection issues preclude dismissal. With respect to BB there is the possibility for a further order for temporary care and custody or a supervisory order given the outside limit of May 20, 2016. However based upon my review of the evidence I’m satisfied that it would not be in BB’s best interests to grant any other disposition order other than an order for permanent care and custody.
[309] The Respondents did not expressly agree that the outside limit should be calculated from the date of the initial interim disposition order made November 20, 2014. Neither did the Respondents specifically maintain that the outside limit should be calculated from the date of the disposition order made March 17, 2015, when the section 41 hearing was concluded. If the outside limit were to be calculated from that date then the outside limit for the proceeding in relation to GB would be March 17, 2016 and the outside limit applicable to BB would be 6 months beyond that date.
[310] I am not satisfied that March 17, 2015 should be utilized as the date of disposition for purposes of determining the outside limits under section 45. I believe that the outside limit should be calculated based upon the initial disposition order made November 20, 2014. I believe that utilizing the November 20 date is more consistent with the legislation’s emphasis on the need to be mindful of the child’s sense of time. Utilizing the March 17, 2015 date would in essence produce a result that would unreasonably extend the section 45 time limits applicable to each child and fail to recognize the mandatory nature of the section 45 limits. I do not see this as being consistent with the best interests of either child.
[311] However even if March 17, 2015 is used as the date to determine the outside limit for each child, in the alternative, based on the evidence, I find that the circumstances which support and justify an order for permanent care and custody for both children are unlikely to change prior to the expiration of the then applicable outside limit, which in the case of the oldest child BB would be September 17, 2016.
Consideration of section 46
[312] With respect to section 46 of the Act I find that there has been no significant change in circumstance since the disposition order of November 20, 2014 or March 17, 2015. I find that the agency’s plan of care premised upon permanent care and custody is in the best interests of both children. I find that orders for permanent care and custody would be in the best interests of both children and that less intrusive orders would be inadequate to ensure the children’s health and welfare. I’m also satisfied that extension of the existing order for temporary care and custody would be inappropriate and contrary to the best interests of the children given my conclusion that the circumstances justifying the current order for temporary care and custody are unlikely to change within the foreseeable future. In reaching these conclusions I would indicate that I am satisfied that the services offered by the agency both prior to and subsequent to commencement of the proceeding were appropriate and adequate.
Access
[313] The agency’s plan is premised upon adoption of both children. The evidence presented on behalf of the Minister included evidence indicating that an order for access will impact negatively upon the potential for successful adoption placement. No evidence to the contrary was presented on behalf of the Respondents or Third Parties. I also find that the Respondents have failed to establish any special circumstances that would justify or support an order for access post permanent care and custody. I would confirm therefore the orders for permanent care and custody will not include any provision for access for the Respondents.
Section 50 - Religion
[314] I would confirm the religious denomination of both BB and GB to be Mennonite. This is the faith that they were being raised in as of the date of taking into care.
[315] Pursuant to section 47(4), where practicable, a child who is the subject of an order for permanent care and custody shall be placed with a family of the child’s own religion subject to availability within a reasonable time. Clearly the decision with respect to the practicability of any potential placement rests with the Minister, premised upon consideration of the children’s best interests.
Conclusion
[316] I find that the Minister has satisfied the burden of proof in this case. The Minister’s application for permanent care and custody of BB and GB be and hereby is granted.
[317] I would like to thank counsel for their participation in this matter and I would ask that counsel for the Minister prepare appropriate orders in accordance with this decision.
Morse, ACJFC