SUPREME COURT OF Nova Scotia
FAMILY DIVISION
Citation: Nova Scotia (Community Services) v. KM, 2023 NSSC 8
Date: 20230111
Docket: Sydney No. 127865
Registry: Sydney
Between:
Minister of Community Services
Applicant
v.
KM and BW
Respondents
| Judge: |
The Honourable Justice Lee Anne MacLeod-Archer |
| Heard: |
December 22, 2022, in Sydney, Nova Scotia |
| Written Release: |
January 11, 2023 |
| Counsel: |
Cheryl Morrison for the Applicant Emma Astephen for the Respondent KW BW, Self-Represented |
By the Court:
BACKGROUND
[1] This is a child protection proceeding involving a 17 month old girl. The Minister became involved with the parents in February, 2022 after receiving a referral from police relaying concerns of domestic violence and breach of a “no contact” order between them.
[2] That investigation was still open when the maternal grandmother called the Minister on August 22, 2022 to report concerns of unstable mental health and drug use by KM. She also reported that KM had left the child with her five weeks prior, and she’d been caring for her ever since. The Minister presumably accepted the referral for investigation, because the social worker told the grandmother that if KM showed up at her home and there were “concerns about [KM’s] mental health or that she is on [sic] the influence of a substance” that she should contact the [Minister] or call police.
[3] On August 24, 2022 KM went to the grandmother’s home, looking to pick up the child. The grandmother called police, who intervened. They contacted the Minister, and after discussing the matter, told KM to “go to family court to address custody and access disputes.”
[4] The next day, KM contacted police “seeking direction from the agency as to what is going to happen” after she was “refused entry to her mother’s home to get her daughter.”
[5] Two social workers attended KM’s home on August 25, 2022, to discuss the referral information from the grandmother and KM’s attempt to retrieve her daughter. KM acknowledged her struggles with mental health and finances. She advised that she had already followed up with her psychiatrist and was taking medication, but she was seeking more in-depth treatment. She confirmed that she’d left her daughter with the grandmother while she dealt with these issues.
[6] The social worker discussed drug testing and mental health services with KM, who agreed to sign an authorization permitting social workers to speak with her mental health providers. After asking if the child could stay with the grandmother while services got underway, the social worker told KM that she “needs to stop showing up at her mother’s home and getting police involved as we cannot be a witness to this.”
[7] The social worker’s affidavit states that KM told her that she “understands this now” and “knows there is a plan in place to get [the child] home and she will cooperate with it.”
[8] On September 3, 2022 the grandmother reported an attempt by KM to retrieve the child, and told the social worker that she’d changed the locks and installed a security camera at her home. It’s not clear whether this was a second attempt to retrieve the child or a report relating to the earlier attempt.
[9] On September 9, 2022 the social worker spoke with KM to provide an update on services. She confirmed that drug testing was underway and some results had come back. She also confirmed that KM’s mental health records were received, and she told KM that the Minister would be reviewing this information “to see what the recommendation would be.”
[10] On September 13, 2022 the Minister held a Risk Management Conference (“RMC”) in which it decided to “open [KM’s] file for long-term services.”
[11] On September 14, 2022 social workers met with KM to discuss the outcome of the RMC. In that meeting, KM questioned “what right [the grandmother] has to [the child].” The social worker replied that “[the Minister] wanted [the child] to stay with her mother while we worked with [KM].”
[12] The social worker also told KM that the Minister had “concerns with her mental health” and wanted to “work with her for a period of time to monitor some things and put some services in place while that happens.”
[13] The social worker spoke with KM again on September 23, 2022 and “noted that she would be scheduling in person access for her and will have a case plan available for her.” The affidavit indicates that “[KM] agreed.”
[14] The social worker and the grandmother discussed KM’s access visits on October 1, 2022. At that time the social worker “advised [the grandmother] not to give [KM] any timeline as to how long the visits would be supervised, or how long [the child] would be with [the grandmother].”
[15] An access schedule of two visits per week was communicated to both KM and the grandmother on October 6, 2022. The next day, at an access visit at the Minister’s offices, the social worker reviewed the access policy with KM, who “indicated that she understood and signed [a copy].” By the time access started, KM had not had in-person contact with her daughter in almost three months. Seven of those weeks fell after August 22, 2022.
[16] The Minister filed its Notice of Child Protection Application (“Application”) on November 10, 2022. The matter came before the Court for the first appearance, known as the 5-day interim hearing, on November 21, 2022. Neither parent had been served by that date, so the Minister sought (and was granted) a waiver of the time for service.
[17] At that first appearance, I questioned whether there had been a constructive taking into care, and whether that impacted my jurisdiction to deal with the matter. The Minister’s response was that the child was not taken into care, rather she’d been left in the grandmother’s care while the Minister attempted “least intrusive measures” to address the risk. It was the Minister’s position that because the child was not taken into care, the matter was properly before the Court within 5 business days of filing as required by s.39(1) of the Children and Family Services Act, SNS 1990, c. 5 (“CFSA”).
[18] The Court questioned what triggered the filing of the Application two months later, if as the Minister argued, KM was cooperating with a plan she agreed to. There is nothing in the affidavit filed on November 10, 2022 to suggest that KM stopped cooperating, that there were new concerns or some triggering event which prompted the filing, or that the “safety plan” was no longer adequate to address the risk. Counsel responded that as the file progressed, it became “apparent” that an Application would be necessary. I therefore invited the Minister to file an updated affidavit identifying what transpired to trigger the Application.
[19] I adjourned the interim hearing for conclusion within thirty days as permitted by the legislation. However, as required by s39(4) of the CFSA, I granted an interim order placing the child in the maternal grandmother’s supervised care pending further order of the Court.
[20] With a date set for completion of the interim hearing, I directed the Minister to file three things before the return date: A) written submissions on whether there was a constructive taking into care (citing Nova Scotia (Community Services) v. KB, 2021 NSSC 372); B) written submissions on whether the Court lacked jurisdiction if there’d been a constructive taking almost two months prior; and C) an updated affidavit outlining any new concerns or events that might have triggered the Application.
[21] When the matter came back before the Court on December 9, 2022 the Minister had filed none of these documents. By that time, KM’s counsel was present, so I exercised my discretion to extend the deadline for completion of the 30-day interim hearing and directed both counsel to file submissions on the issues of a constructive taking and jurisdiction. I also granted an extension of time for the Minister to file an updated affidavit.
[22] The matter returned to Court on December 22, 2022 by which time, the Minister and counsel for KM had both filed submissions on the issues identified by the Court. The Minister also filed a supplemental affidavit. KM did not file an affidavit or request cross-examination of the social worker.
[23] I heard oral arguments and granted an order dismissing the Minister's Application based on a constructive taking into care, resulting in a lack of jurisdiction. I indicated that written reasons would follow. These are my reasons.
ISSUES
(a) Was there a constructive “taking into care” of the child by the Minister?
(b) If there was a taking into care, did the Minister meet the legislated timeframe for filing a Child Protection Application?
(c) If the Minister did not file its Application by the legislated deadline, does this Court have jurisdiction to grant an order?
ISSUE 1: Was there a constructive “taking into care” of the child by the Minister?
[24] As Justice Christenson noted in KB (supra), the term “taking into care” is not defined in the CFSA. She concluded that whether a “taking” occurred is a finding of fact arising from the particular circumstances of an individual case.
[25] I agree that a “taking into care” is a factual finding. I’ve used the list of questions posed by Justice Christenson in KB (supra) as a guide in considering the factual circumstances of this case. I am also guided by the legislation and, in particular the sections of the preamble which state:
…
AND WHEREAS the basic rights and fundamental freedoms of children and their families include a right to the least invasion of privacy and interference with freedom that is compatible with their own interests and of society’s interest in protecting children from abuse and neglect;
AND WHEREAS parents or guardians have responsibility for the care and supervision of their children and children should only be removed from that supervision, either partly or entirely, when all other measures are inappropriate;
…
AND WHEREAS the rights of children, families and individuals are guaranteed by the rule of law and intervention into the affairs of individuals and families so as to protect and affirm these rights must be governed by the rule of law;
[26] My findings are as follows:
1. Did the Minister state an intention to take the child into its care?
The Minister did not express an intent to take the child into its care, either at the RMC, or in discussions with KM, the father, the grandmother, or police.
2. Did the Minister prepare and serve a Notice of Taking?
There was no Notice of Taking prepared or served on either parent or the grandmother.
3. Did the Minister implement a “safety plan”? If so, under what circumstances did that arise? Did the Minister advise the custodial parent how long the “safety plan” would remain in place?
- I recognize, as did Christenson, J. in KB, that the legislation doesn’t provide for, or define, a “safety plan”. I am aware that “safety plans” are often used where the Minister decides to investigate a referral, but needs to ensure the short-term safety of the child while that investigation unfolds. I am also aware that “safety plans” differ from “case plans” (another term not defined in the CFSA), which typically capture long-term arrangements for the safety of a child where a referral has been substantiated.
- The Minister initiated discussions about what it calls (in submissions though not in the social worker’s affidavit) a “safety plan”. The discussion arose in the context of discussions about the grandmother’s referral, and KM’s acknowledgement that she was dealing with mental health and financial issues. The social worker made it clear to KM that the Minister wanted a plan for the child in place while she accessed services.
- There is no evidence that the social worker ever communicated to KM how long the “safety plan” would be in place. In fact, the social worker cautioned the grandmother against giving KM any estimate of time for how long the child would be in her care.
4. Did the Minister expressly advise the custodial parent of the implications of a failure to cooperate with the “safety plan”?
No. The affidavits don’t outline any discussion between the social worker and KM about whether (or what kind of) more intrusive measures might be taken if she didn’t cooperate with the “safety plan”.
5. Was the “safety plan” implemented by consent or was it imposed by the Minister?
- The plan to leave the child with the grandmother and require KM to access services was discussed with KM, but the evidence doesn’t persuade me that it was concluded by consent.
- The social worker knew that the grandmother already had the child in her care. The Minister had already directed the grandmother to keep the child and call the Minister or police if KM showed up and there were concerns about her mental health or impairment. It was a given that if KM tried to retrieve the child, she would be refused, and police or the Minister would be called.
- The social worker wasn’t asking KM to leave the child with the grandmother; she was telling her to do so. This is clear in her direction to KM to stop going to the grandmother’s home and involving police.
6. Did the “safety plan” restrict the custodial parent’s care and control of the child? To what extent?
- The arrangements put in place by the Minister restricted all aspects of KM’s care and control of the child. She was not permitted to retrieve the child, nor even to see her in person while access arrangements were made through the Minister. That took seven weeks to arrange.
- The plan constituted a significant intrusion on a custodial parent’s right to provide care of their child.
7. Who was present when the “safety plan” was developed? What impact did their presence (or other factors such as legal advice) have on the issue of voluntary consent?
- A lone social worker met with KM on August 25, 2022; two social workers met with her on September 14, 2022. The presence of two authority figures with the power to keep you from seeing your child would be quite intimidating, especially to a parent who had already been removed by police from her mother’s home and hadn’t seen her daughter in weeks. The power imbalance is significant here.
- The Minister did not request police assistance when meeting with KM to discuss the “safety plan” on either occasion. However, the social worker had advised the grandmother to call police if KM came to her home, which she did. KM was aware from police involvement on August 24, 2022 that their authority would be used to enforce the “safety plan”.
- This is reinforced by the fact that on August 25, 2022 KM contacted police “seeking direction from the agency as to what is going to happen”. The social worker asked police to tell KM to “go home and wait for a social worker to attend at her home to speak with her.”
- This clearly signals that the Minister was directing the situation, that it was limiting KM’s contact with her daughter, and that if she didn’t cooperate, police would be called. This doesn’t support the Minister’s assertion that KM agreed to the “safety plan” voluntarily.
- There’s no evidence that KM had legal advice when the “safety plan” was implemented.
8. Did the Minister physically remove the child from the custodial parent’s care? Or did the Minister imply or express/state that the child was in its care and control ?
- The Minister did not physically remove the child from KM’s care, because she was already in the care of the grandmother. However, the grandmother was told to keep the child and call police if KM tried to take her. Days later, when KM questioned what right the grandmother had to keep the child, the social worker directed her to leave the child with the grandmother and stop showing up at her house. This effectively removed the child from KM’s care and control.
- The Minister did not expressly state that the child was under its control, but it is clear that the Minister was directing the child’s placement and contact with KM. The social worker also addressed with KM the Minister’s expectations “when [the child] is returned to her”. She also told KM that she must cooperate with the Minister if she wanted the child “returned to her”.
9. Did the custodial parent expressly state their intention to cooperate with the “safety plan”? Did they state a different intention at any time?
- Evidence of KM’s intentions is available only through the Minister’s affidavits because she didn’t file an affidavit. The social worker’s affidavits state that KM agreed to cooperate with the Minister’s direction that she leave the child with the grandmother while she accessed services. Yet two days after the initial discussion, she tried to remove the child from the grandmother’s care. The affidavit isn’t entirely clear, but she may have tried to remove the child again on September 3, 2022.
- Although KM didn’t expressly state any reservations when meeting with the social workers, that meeting involved a power imbalance that makes it unsurprising that she’d be reticent. Her actions make it clear, however, that her intention was to resume care and control of the child.
- Reinforcing my conclusion is the fact that on September 14, 2022 KM told social workers that she wasn’t in agreement with “leaving [the child] at her mother’s temporarily.”
- The Minister states in its submissions that “During that meeting [of August 25] the proposed safety plan was reviewed with [KM] and she agreed with it.” Counsel suggested that this situation was analogous to a person being told they need a medical intervention and feeling pressured to give consent. Counsel argues that this still comprises informed consent. I reject that argument. The two situations are not the same.
- I accept the argument of KM’s counsel, who said that the plan KM agreed to cooperate with was imposed on her by the Minister under duress. She knew that she had no other choice. She couldn’t ask for a “second opinion”. She hadn’t yet retained a lawyer. She’d already been removed by police from her mother’s home and was being denied contact with her daughter. She’d asked police and the Minister what she had to do to regain access with her daughter, and she was told that she must cooperate with the plan. I find that she agreed to the “safety plan” under duress, and that if she expressed consent, it was not informed.
- The Minister argues that KM subsequently expressing reservations or displeasure about the arrangement doesn’t negate her consent, but cooperation under duress doesn’t equate to genuine or informed consent.
10. Did the Minister put the specifics of the “safety plan” in writing? If so, was it done in a reasonable period of time?
- No “safety plan” was prepared in writing, even though the social worker told KM on August 24, 2022 that the Minister’s workers would meet and come up with “recommendations”. KM was then told on September 23, 2022 that a “case plan” would be prepared.
- No written document (other than the access policy) was presented to KM until she was provided with a “case plan” on October 26, 2022 and asked to sign it.
- KM was presented with a “case plan” but no “safety plan”. And only then, six weeks after the Minister told KM to leave the child with the grandmother and stop showing up at her house, and nine weeks after KM was removed from the grandmother’s home by police. That is not a reasonable timeframe given the level of state intervention.
- The Minister’s actions removed KM’s right to provide care to her daughter; it effectively transferred authority to control the child to the grandmother under the Minister’s direction. Until then, KM had legal responsibility to provide care for the child. The arrangement with the grandmother was informal; KM had the right to retrieve the child from the grandmother at any time.
- On August 25, 2022 the grandmother called police when KM attempted to retrieve the child, as directed by the Minister. The police asked KM to leave, advising her to “go to family court to address custody and access disputes.”
- The fact that KM followed up with police the next day “seeking direction from the agency as to what is going to happen” and was told to “go home and wait for a social worker to attend at her home to speak with her.” demonstrates not only that the Minister was directing the situation, but that it made that clear to KM. She understood that her options were limited. She knew that contact with her daughter was being restricted and that the Minister was using police authority to limit her contact.
- The Minister dictated the time, place and type of contact that KM had with her daughter. This is highly restrictive and invasive. Such restrictions must only be implemented in a way that’s consistent with the CFSA preamble and natural justice.
- The social worker’s affidavit indicates that the Minister didn’t develop a “case plan” on this file until some time after October 19, 2022.
11. Did the Minister make a decision to initiate a Court Application under the CFSA? When was that decision made?
- The Minister’s affidavits don’t state when the Minister’s investigation was completed, but it’s reasonable to infer that it was concluded by the time the first RMC was held on September 13, 2022. It’s also reasonable to infer that the risk was substantiated, as the file wasn’t closed.
- The social worker’s affidavit doesn’t clearly state when the Minister decided to pursue a Court Application. That decision would have been made at an RMC. The first RMC was held on September 13, 2022 and the second was held on October 19, 2022.
- The question arises: if the intent after the September 13, 2022 RMC was to file an Application, what is the reason for a two month delay in filing? That question becomes all the more imperative because during the majority of that time, KM had no access to her child, she was given no written specifics of what was expected of her in order to resume care of her daughter, and she had no disclosure or legal counsel.
- If the decision was made to pursue a Court Application on October 19, 2022 what changed after the “safety plan” was implemented to justify that decision ? There was no evidence of any change to the risk.
12. Did the custodial parent cooperate with the “safety plan”? Or was there a triggering event that gave rise to a Notice of Child Protection Application being filed?
- After the “safety plan” was put in place, there is no evidence of an incident or development which would require the Minister to take more intrusive action. So if the Minister decided at the first RMC to pursue an Application based on the risk at that time, there was a significant delay in filing.
- Conversely, if the decision was made at the second RMC, then what changed ? If the arrangement put in place was truly a “safety plan”, and KM was cooperating, then how and why did it become inadequate to address the risk ?
- Early intervention and voluntary services are to be encouraged for parents who need the Minister’s assistance and who are willing to cooperate. However, beyond that, there is only one real option available, i.e. initiate an Application.
- The Minister suggests that it became “apparent” that an Application would have to be filed, yet even in the social worker’s supplemental affidavit, there’s no evidence of any new development or triggering event that necessitated the Application. Again, KM was cooperating with the “safety plan”. She had signed a “case plan” just two weeks before the Application was filed. KM was cooperating with the “case plan” when the Application was filed.
13. Did the Minister take reasonable steps to advance the file (once a decision was made to initiate an Application) and bring the “safety plan” to an end?
- The Minister did not take reasonable steps to advance the file. It took almost two months after the initial RMC to file its Application. There is no explanation or reason for the delay.
[27] Based on all of the above, I find that the child was constructively taken into care on September 14, 2022 when the Minister directed KM to leave the child with the grandmother and stop showing up at the grandmother’s home.
[28] I further accept KM’s argument, in the alternative, that the taking into care may have happened even sooner, when KM was refused contact with the child and directed by police to leave the grandmother’s home. That took place on August 24, 2022, two days after the Minister directed the grandmother that if there were “concerns about [KM’s] mental health or that she is under the influence of a substance…” to call police or the Minister if KM showed up at her home.
ISSUE #2: If there was taking into care, did the Minister meet the legislated timeframe for filing a Child Protection Application?
[29] Under s.39(1) the Minister was obliged to file its Application within five working days of the date of the taking. The latest date of these two dates of taking the child into care would place that deadline at September 21, 2022.
[30] The Application wasn’t filed until November 10, 2022, so the Minister did not meet the legislated deadline for filing its Application.
ISSUE #3: If the Minister did not file by the legislated deadline, does this Court have jurisdiction to grant an order?
[31] The Minister agues that, even if there was a constructive taking into care and the Minister failed to meet the legislated deadline, I can and should exercise my discretion to extend the deadline for filing in the child’s best interests. No authority for that suggestion was provided in the Minister’s submissions, but presumably the Minister is referring to my parens patriae jurisdiction under the Judicature Act, R.S.N.S. 1989, c 240, or my authority under the Nova Scotia Civil Procedure Rules.
[32] In any event, I decline to exercise my discretion to extend the deadline. The child’s interests are not served by extending a process that denies the mother natural justice and denies her and the child the safeguards and deadlines set out in the legislation. The aim of the CFSA is to reunite families where possible. The legislation sets out strict time limits because a child’s sense of time is unique. Circumventing those timelines by allowing the Minister to delay bringing a Child Protection Application while relying on a “safety plan” that is highly intrusive does not serve the child’s interests.
[33] Having decided that I will not extend the deadline for filing, I am without jurisdiction to issue an order under the CFSA. The Application is dismissed and the 5 day interim order is vacated.
[34] The Minister is directed to file the appropriate order.
MacLeod-Archer, J.