QUEEN’S BENCH FOR SASKATCHEWAN Date: 2009 11 03 Citation: 2009 SKQB 433 Docket: F.S.M. No. 44 of 2003 Judicial Centre: Saskatoon, Family Law Division IN THE MATTER OF HEARING UNDER THE CHILD AND FAMILY SERVICES ACT AND IN THE MATTER OF D.T.P-L.C., born June 25, 2001 (“David”) M.S.S., born July 14, 2004 (“Michael”) Counsel: J.D. Hillson and P-L. Tallis for The Ministry of Social Services M.E. Soder for the mother, M.C. (“Melody”) M.J. Helms for the maternal grandmother, L.H., (“Laura”) C.A. Lavier for the paternal grandfather, A.H. (“Art”) JUDGMENT R.S. SMITH J. November 3, 2009 1) This action deals with the placement of two brothers, M.S.S. (“Michael”) and D.T.P-L.C. (“David”), who were apprehended from the care of their maternal grandparents, A.H. (“Art”) and L.H. (“Laura”). To preserve the family’s anonymity, will refer to them by the aforesaid pseudonyms and to the mother of the boys, M.C., as “Melody”. will refer to other players simply by initials. 2) The Ministry seeks an order under s. 37(2), which is a permanent committal and is a precursor to the boys being placed for adoption. Art and Laura oppose the application and petition the Court to return their grandsons to their care. At the commencement of the trial, counsel for the boys’ mother, Melody, indicated that she supported her parents’ application for custody. Legislative regime 3) Recently, Wilkinson J. had occasion to outline an analytical roadmap which the Court should follow in grappling with these unfortunate cases. In Re: V.J.C. et al, 2009 SKQB 395 (CanLII), [2009] S.J. No. 592 (QL), Wilkinson J. opined at paras. to as follows: [4] The Child and Family Services Act, S.S. (1989-90), c. C-7.2 (the “Act”) sets out clear objectives. If child is found in need of protection, the Court is required to look firstly at s. 37(1) which requires determination of whether or not the children should be returned to parent, placed with person of sufficient interest, or with the Minister for temporary period. If no order is available under s. 37(1), then pursuant to s. 37(2), the Court shall make permanent order placing the children with the Minister. However, s. 37(3) provides an exception to s. 37(2), namely, where the Court is of the view that an adoption plan is unlikely due to reasons such as the age of the child or other circumstances. Where the Court is of that view, it may make long-term order placing the child in the custody of the Minister until the age of 18. [5] These are the relevant provisions: 37(1) Subject to subsection (2), if the court determines that child is in need of protection, the court shall make an order that the child: (a) remain with, be returned to or be placed in the custody of his or her parent; (b) be placed in the custody of person having sufficient interest in the child; or (c) remain in or be placed in the custody of the minister for temporary period not exceeding six months. (2) If, in the opinion of the court, none of the orders described in subsection (1) is appropriate, the court shall make an order permanently committing the child to the minister. (3) Notwithstanding subsections (1) and (2), the court may, if it is of the view that: (a) child is in need of protection; and (b) by reason of the age of the child or other circumstances, it is unlikely that an adoption plan would be made if the child were permanently committed to the minister; order that the child be placed in the custody of the minister until the child attains the age of 18 years. (4) In making an order pursuant to subsection (1), (2) or (3), the court: (a) shall consider the best interests of the child; (b) may consider the recommendations of the officer mentioned in subsection 36(2); and (c) may consider the recommendations of chief, chief’s designate or an agency that appears in court pursuant to subsection (11). [6] The procedure to be followed by Court in making these determinations was outlined in Re: E.K.S. (1996), 1996 CanLII 7131 (SK QB), 146 Sask. R. 46 (Q.B.). [7] The “best interests standard” mandated by s. 37(4)(a) is necessarily an individualistic approach as explained in A.C. v. Manitoba (Director Child and Family Services), 2009 SCC 30 (CanLII), [2009] S.C.J. No. 30, at paras. 88-90. In that case, particular emphasis was placed on the comments of L’Heureux-Dubé J. in Young v. Young, 1993 CanLII 34 (SCC), [1993] S.C.R. 3, that “... courts must be directed to create or support the conditions which are most conducive to the flourishing of the child...” (para. 70) and similar sentiments expressed by McIntyre J. in King v. Low, 1985 CanLII 59 (SCC), [1985] S.C.R. 87, where he observed: “... [i]t must be the aim of the Court ... to choose the course which will best provide for the healthy growth, development and education of the child so that he will be equipped to face the problems of life as mature adult....” (para. 27). 4) Justice Wilkinson’s explication shall inform my reasoning in addressing the facts of this case. Events leading to apprehension 5) At all material times, the Family Service worker responsible for the Ministry of Social Services (“MSS”) concerns for Michael and David was Rae Shoofey-Stabler (“Rae”). Both boys have special needs and are developmentally delayed. MSS opened its file respecting Melody shortly after she gave birth to David. There were concerns about her parenting skills and hygiene in the home. 6) In short, Melody’s problem was that she was overwhelmed as parent. She could not cope. When Rae first met Melody, sometime in 2007, Melody had just given birth to her son K. Melody was self-aware of her inability to contend with newborn and placed K. with his father and his father’s mother to raise. 7) In October, 2007, Melody asked her parents, Art and Laura, if they would care for the boys. They were pleased to do so. MSS was not involved with that private placement but was aware of it and initially comfortable with the plan. At that juncture, Melody carried the hope that having her parents raise the boys would only be temporary. In time, she came to accept that for the foreseeable future she will not be in position to care for the boys on her own. 8) It is to be noted that the fathers of the boys have been served with notice of these proceedings but each has indicated that they are not interested in the trial or the outcome. 9) Through Rae, MSS would periodically check in with Art and Laura as to the status of the boys. The observation was that Michael and David were improving from where they were at under Melody’s care. 10) In November, 2007, MSS received mobile crisis report which raised the question as to whether Art was convicted sex offender. The report came across Rae’s desk and she took steps to investigate. In due course, Rae discovered that in January, 1987 Art had been convicted of sexual assault (which took place in 1986) against four girls who were friends of his daughter, C. He had been sentenced to 21 months and probation for three years on each of the four charges, all to be served concurrently. 11) Rae, quite properly, concluded it was incumbent upon her to meet with Art and Laura and to talk to the boys and Melody. After various meetings with the family, Rae concluded that Art did not pose risk to the boys. Firstly, the allegation was over 20 years old and, from Rae’s investigation, nothing showed Art to have any disposition to sexually assault his own children. Further, Melody advised that she was satisfied that the allegations against Art were false. 12) Through working with Melody and her family, Rae’s relationship with Melody became more trusting. That growing bond likely led to revelations by Melody made in February, 2008. She confided to Rae that Art, on at least two occasions, had molested her once when she was eight and later at age 16. Melody advised Rae that both she and her sister, C., had been sexually abused by Art and had reported it to the police. As Melody related it to Rae, the police did not proceed because she and her sister were too emotionally fragile to cope with court proceeding. 13) What Melody indicated to Rae, although not always in seamless, sequential fashion, was that when she was roughly eight years old Art was naked and she was naked and he rubbed his penis against her vagina. Art also took pictures of her friends in panties and her parents were casual about where they had sex and Melody had had occasion to witness them. The girls for whom Art was prosecuted were age 10 or 11 at the time of the offences in 1986. Additionally, Melody advised that Art fondled the girls and would masturbate in front of them. 14) Suffice it to say, in the face of Melody’s revelations, Rae regretted her decision to allow the boys to stay with Art and Laura. Rae immediately and appropriately reported to her supervisors. The file that MSS previously had respecting Art and Laura and their three daughters was requisitioned for review. 15) Upon receipt of the material, Rae, along with upper management at MSS, reviewed the issues affecting with David and Michael and the old file that dealt with Melody and her two sisters. 16) That inspection by MSS yielded more information than simply the four charges in 1987. MSS was now faced with the following facts that had to be factored into their consideration as to the boys’ continued placement with Art and Laura, namely: (i) Melody said she was molested by Art at age eight and at age 16; (ii) Melody said at age 16 Art had taken pictures of her that were sexual in nature; (iii) Melody’s sister, C., had also said she was molested by Art; (iv) In October, 1989, Court order issued permanently apprehending Melody and her sisters from Art and Laura; (v) Photos were discovered by the teacher of another girl and were given to MSS which then placed them on Melody’s file. MSS understood that Art had taken the photos. They were exhibited as P-3 and are the pictures of young woman (late teens or early 20s in various stages of dress and undress); and (vi) It was discovered that Art had, for number of years, operated photography business focussing on pictures of young models (dressed and undressed) for their portfolio. He would often advertise at food banks and indicated that there was no fee. 17) Shortly after MSS’s reassessment, it was resolved that the boys should be apprehended from Art and Laura and same took place on March 18, 2008. By March 31, 2008, Michael and David were living with “Mary Stevens” and her husband “Albert” (pseudonyms). They operate therapeutic foster home. The boys remain at the Stevens home. Status since apprehension 18) Although living in therapeutic foster home, the boys still have regular contact with Melody and Art and Laura. Melody sees the boys once week and is, to great extent, left alone with the boys. However, she cannot leave the MSS office without being escorted by worker. The grandparents’ access is fully supervised and notes are taken. There have been no problems with the boys’ access to their mother and grandparents. 19) Rae observes that both David and Michael have improved in terms of their ability to carry on daily activities. Each is doing better at school and not acting out as much. Additionally, Michael, who had been verbally challenged, has shown great improvement in both language and vocabulary. 20) MSS has determined that they do not regard Art and Laura as good resource for the boys. They seek an order under s. 37(2) which places the children on an adoption list. Rae concedes adoption may be difficult because both David and Michael have demonstrable cognitive problems or delays. That fact impacts negatively on the likelihood of adoption. Until the boys are adopted, it is the intention of MSS to leave them at the Stevens home. Rae advises that Mary Stevens has indicated willingness to care for the boys on long-term basis. 21) The current caregiver, Mary Stevens, also testified. She has been foster mother for five years and has taken the necessary courses to be deemed therapeutic foster parent. Albert has also taken training but it was unclear whether he benefits from the therapeutic designation. The Stevens have had care and charge of the boys since March 31, 2008. 22) Ms. Stevens indicates that in the beginning David was: (i) Very withdrawn; (ii) Lots of nightmares; (iii) No hygiene at all; (iv) Needed training as to daily tasks, including toilet training; (v) Problems at school with aggression and foul language; (vi) He could not read; and (vii) He seemed particularly mean to girls and prone to racist remarks. 23) Ms. Stevens indicates that David has thrived from being exposed to regular routine. She reads to him every day and considerable progress had been made on that front. She allows that now that David can read his self-confidence has improved and he appears to want to learn. As his self-confidence has improved, his conduct has improved and he no longer poses problems at school. 24) As to Michael, Ms. Stevens observes he was three years old when he came to live with her. Although three, he was more like baby. The issues were: (i) Completely non-verbal; (ii) To the extent he verbalized, it was gibberish; (iii) Still in diapers; (iv) Nightmares; (v) When wanting something, he did not know how to ask all he knew how to do was to cry and scream; and (vi) Throwing tantrums was the only way he seemed to have of communicating. 25) Ms. Stevens allowed that both boys, in the beginning, tended to fondle themselves excessively every time they were in the bathroom or taking baths. She has worked with them on this and they are now less inclined to do so. 26) Ms. Stevens has worked with Michael and he is now able to verbalize although sometimes he is difficult to understand. He was put in pre-kindergarten class which has been good for him. Every day he gets one-on-one speech therapy for 15 minutes. He is now communicating more clearly. Ms. Stevens said he is also potty trained, however, it took close to year and he was four years old before that problem was solved. 27) It is fair to say Michael was never as aggressive with other children as David. If he had problems, he just tended to cry and throw tantrums. In the beginning, he had no social skills and did not know how to play with other children. His social skills have greatly improved. 28) There is regular contact between Ms. Stevens and Melody. Initially, Melody was somewhat distant, not unexpectedly, but over time it has improved and Ms. Stevens has indicated she attempts to assist Melody with her self-esteem. She notes that the boys are always happy to see Melody and concedes they are also happy to see Art and Laura. 29) From comments the boys have made to her, she believes they may have seen violence between Art and Laura, although it is impossible to be conclusive. Ms. Stevens is also of the view that Melody’s relationship with her parents is somewhat uneven. Nonetheless, she acknowledges that Melody is supportive of her parents seeing the boys. 30) Ms. Stevens is prepared to commit to the boys in the sense of continuing to care for them. She says what they truly need is stability and routine. Her husband, Albert, is similarly committed. When asked whether she would be open to an assisted adoption (adoption but continuing to receive money from MSS), Ms. Stevens said that she would consider it. 31) It is worthwhile to note that the therapeutic foster home operated by the Stevens is occupied by the two of them and seven foster children two girls, and 16 and three boys, ages 8, and 11, plus Michael and David. All the children have special needs of some sort, even high needs. Ms. Stevens testified that from time to time MSS will come to her to be an emergency foster home and therefore she will add to her brood for short period of time. At one juncture, she had nine foster children. 32) The physical plant of the foster home must present some challenges. Ms. Stevens indicated she did not know the square footage but did advise that there were: four bedrooms; kitchen; livingroom; recreation room in basement; three TVs; one bathroom; separate laundry room; and large back yard. 33) inquired whether her home, with her and Albert and seven foster children, and sometimes up to nine, each with some type of special need, would be problematic, bearing in mind there was only one bathroom. She replied that they can and do cope. It is obvious that in order to have positive environment within those restrictions, it is necessary to be very organized and cohere to routine. It is clear that Ms. Stevens has the skills to do that. 34) It is not necessary for me to remind MSS that it has moral and legal duty to ensure that foster home has the necessary physical requirements to properly care for the children placed in such home. MSS has no doubt concluded the Stevens home meets the necessary standard. 35) The Court heard from the educational assistant who attends to Michael in his afternoon kindergarten class. She does 15 minute one-on-one speech work with him every day and then attends to him along with some other special needs children. She has only seen Michael since the start of school in September, 2009. She said he seems to have settled down in the last week or so. He does not socialize well, however, he does not get angry, he just tends to be by himself. At first, Michael was not verbal but slow progress has been made on that front. She estimates he functions at the age three to four level. From her perspective, Michael will require an educational assistant for the foreseeable future. 36) David’s Grade teacher also testified and describes him as very kind boy who is good with the other children, both in the class and on the playground. He tries hard but obviously struggles academically. He is easily distracted. David has not shown himself to be aggressive with the other children. He is more often by himself, somewhat like bystander. He oral reading level is about the middle of Grade 1. His comprehension level is less. Art and Laura 37) Art and Laura called five friends, all of whom have knowledge of the boys and Art and Laura. Most were also involved with Art and Laura at their Pentecostal church. The witnesses were sincere, both in their concern for the boys and in their belief that Art and Laura could provide them with decent home. All commented that Art and Laura are committed to each other and have support network of friends. 38) Art is 53 years old. He has been on disability and more or less unemployed since he got out of jail in 1988. His health problems include diabetes and prostate cancer. He also has mobility issues. 39) Art and Laura have lived together since 1986 but have known each other well since the 1970s. They have three children, A., Melody, and C. It is somewhat of an open question as to whether Art is the biological father of Melody as at the time of her conception both Art and Laura were living with other partners. Nothing turns on this, as both Art and Laura are convinced that Art is Melody’s father. 40) Art has had somewhat complex familial background, having had number of partners. He has three other children, N., P. and T. He did not know he was the father of T. until approximately three years ago. 41) Art is not stranger to the criminal justice system. He readily acknowledged he has criminal record. brief summary is as follows: (i) Convicted of indecent acts (s. 169(b)) in 1997. Art said he was walking around nude in his house with the drapes open. The business across the street complained and he plead guilty. (ii) 1980 plead guilty to indecent assault on female (s. 149). The facts were simply that he exposed himself to woman. He advises there was no touching. (iii) In 1987, as previously referred to, he was convicted of four counts of sexual assault on four girls (aged roughly 10 or 11). Pursuant to s. 246.1, he was sentenced to 21 months and three years probation. 42) Art says the 1987 convictions are an injustice. Firstly, his lawyer pleaded him guilty notwithstanding that he did not want to plead guilty. Secondly, he did not assault the girls. What happened was that his daughter, C., and four of her friends were in the basement drinking wine and smoking marijuana with boy. He threw the boy out. The young man then conspired with the four girls and they laid false charges of sexual assault against Art. Art, however, does admit that, at that time, he did periodically walk around the house nude and when he masturbated, the door was often left open. 43) That laissez-faire approach to sexuality was confirmed by Chief Justice Laing in prosecution against Art which went forward in February/March, 2001. Although Melody had advised MSS that the Crown did not proceed with charges against Art based on her complaint, the fact is they did. 44) Art was charged with sexual assault (s. 271) against Melody, who was then described as his step-daughter. The alleged assault took place between November 1, 1996 and March 1, 1999. Chief Justice Laing (then Justice Laing) delivered judgment on March 1, 2001 and in doing so made the following observation, firstly at page 1, line 12: In the latter part of February, 1999, on the same day the accused had shaved the public hair of [Melody] and her friend [name omitted], the two girls left for [name omitted]’s sister’s house and [Melody] did not return to [Art and Laura’s] home thereafter. Evidence indicates some sort of disclosure occurred on that day. will not refer to the background evidence in detail, but suffice it to say this was somewhat unorthodox household, insofar as the accused regularly walked around naked, as did [Laura] on occasion. The accused apparently masturbated without too much concern about who might observe him. And both the accused and [Laura] had sufficiently libertine attitude to allow the accused to take photos of [Melody] and her friends in lingerie and/or bikinis, whereupon he made various adjustments to [Melody]’s attire; and also allowed for the accused to shave the pubic hair of [Melody] and her friend [name omitted], again in the presence of [Laura]. The foregoing activity is referred to and is not disputed, simply to make the point that none of the touching which has occurred in the foregoing events form the subject of these charges. 45) It is important to note that Chief Justice Laing acquitted Art of the charge. It was clear that Melody’s inability to give coherent testimony as to time and place precluded the Crown from meeting its burden. 46) When asked about Chief Justice Laing’s comments in 2001, Art took some exception. Although he does concede shaving the pubic area of Melody’s friend, he said that he did not shave Melody’s. 47) In cross-examination, Art was asked if he ever treated his daughters in sexually inappropriate way. He replied flatly that he did not. asked him if he considered masturbating in front of his daughters sexually inappropriate. After shrug, he did allow it is inappropriate but he clearly considered it at the lower end on the scale of outrage. 48) Art does concede that in addition to Melody, his daughter C. has accused him of sexual assault although the matter did not go to trial. Art points out that when he was in prison he received extensive counselling and through the three year probation period. He even continued counselling after the three years as he thought he was helping the counsellor with the others in the group. 49) There was considerable evidence from Art, both in chief and cross, concerning photographs (P-3) and activities he undertook apparently between 1992 and 1999. During that period, he was engaged in photography business where he would take photos of young women, in various stages of dress and undress, so they could put together modelling portfolio. He would charge no fee. 50) Although Art charged no fee, it was not completely altruistic undertaking. Art had contact in the east who was in the modelling business. If that contact actually employed one of Art’s photographic subjects, then he would receive $1,000 finder’s fee. He advised he did receive the fee at least once. 51) Art admits that in the process of taking those photos there was often shaving of the pubic area. Although his wife was always in attendance, it was he that would attend to that aspect of preparation. The business ended in 1999. 52) The 1987 conviction was not Art’s last brush with the law. There are two other convictions on his record, namely: (i) In 2000, he was convicted of fraud over $5,000 (s. 380(1)(a)) and given 12 month conditional sentence order and restitution. Essentially, the charge was welfare fraud. Art was working and being paid at the same time he was receiving Social Assistance benefits. Art explains that it was case of necessity. He and Laura had taken in two girls they knew into their home who were otherwise living on the street. He needed the extra money to care for them and as result was forced to work. (ii) In 2007, Art was again convicted of fraud over $5,000 (s. 380(1)(a)) and was given nine month conditional sentence order and an order for restitution in the amount of $5,400. Again, it was welfare fraud. Art asserts this was yet another judicial error. He said that Laura was working and receiving Social Assistance benefits, not him. Nonetheless, they were both charged. 53) After working through the Criminal Code convictions and the photography business, the balance of Art’s testimony focussed on his relationship with the boys. Art testified as to his love for the boys and do not doubt his sincerity. He and Laura see David and Michael every third Sunday, more or less, and he avers that the boys are always thrilled to see the two of them. 54) Arts also outlined solid relationship with Laura. He concedes they have ups and downs as do everyone but there is never any violence. 55) Art testified that he and Laura are regular churchgoers and it is clear their social life involves people from the church. He wants the opportunity to raise Michael and David so that he can instill in them Christian values. 56) Laura’s testimony echoed Arts in terms of the nature of their relationship and their love for the boys. She acknowledged that when Art got out of jail in 1988 she put her foot down about him walking around nude and masturbating with the door open. She says it has not been problem since. 57) Laura spoke of the boys lovingly and pleads for an opportunity to raise them in their home. She concedes their family has had problems and that their relationship with Melody has been off and on. She acknowledges that in October, 1989 permanent order issued apprehending Melody and her two sisters, placing them in the custody of the Minister of Social Services. 58) Further, Laura admits that sometime after her daughters were taken she penned letter to C. The letter also appears to be addressing Melody and her other sister, A. In essence, the letter is mea culpa on behalf of her and Art respecting the home life they had provided. sense of the tone of the correspondence is reflected in the second paragraph which reads: am writing this letter to inform you that now know everything about what [Art] did to you. do know you feel about what happen [sic] between you and [Art] but when we had counselling at McNeill Clinic really didn’t understand what you went through. do know now what you went through when it happened. So hope and wish you forgive me for my ignorance about it some time in the future. 59) Laura concedes that she remains unreconciled with her daughters, C. and A. 60) Laura’s loyalty to Art is ironclad. When Laura was asked about Art’s conviction respecting the four girls in 1987, she answered that she thought the girls were lying. When asked about Melody’s allegations against Art, she answered that she thought Melody was lying. When asked about her daughter, C.’s, allegations that Art had molested her, she again replied that C. was lying. 61) MSS placed considerable weight on the contention that Art is at risk of sexually reoffending and specifically offending against the boys. The Court benefited from the evidence of two experts, Dr. Brian Chartier, clinical psychologist who was qualified to give evidence in psychology as it related to parent capacity and sexual deviance; and Dr. J. Stephen Wormith, registered psychologist who was called on behalf of Art. Dr. Chartier readily acknowledged the expertise of Dr. Wormith in the area of sexual offenders. 62) Dr. Chartier did not have occasion to assess Art but he did engage in two-day assessment of Melody approximately one year ago. In that process, Melody made number of disturbing disclosures, namely the incidents with Art. He allows Melody’s emotions run the gamut respecting her parents, from hating them to “trying to deal with them”. He acknowledges Melody is not always able to give an accurate recitation of events in terms of date and sequence. He was not surprised that she proved to be problematic witness at the aforementioned 2001 trial of Art. 63) Dr. Chartier outlines that once sexual preference is developed, it does not change. In short, there is no cure for sexual preference for young children or young women. The focus of psychologists in addressing an offender is to change behaviour so as to fortify the offender in resisting his urges. Dr. Chartier repeated what the Court already knows that children learn from their parents. If parents create sexualized environment, that clearly impacts the children. To them, it appears to be the norm. Dr. Chartier observed that the harm of an inappropriately sexualized environment can be exacerbated if the children are intellectually delayed. Those children are, by definition, more vulnerable. 64) Dr. Wormith, who testified on behalf of Art, is an acknowledged expert in the field of paedophelia. He had occasion to meet with Art and used the STATIC 99 test which is the accepted testing vehicle to determine the risk factor of sexual offender. Art received score of out of possible 12 points. This places him in the “moderate-high” risk category. The score on the STATIC 99 test is derived essentially from an actuarial table which assigns points to convictions and relationship of the offender to the victim. Dr. Wormith conducted the test on the basis that Art was unrelated to the victims, although was aware that Melody had made an accusation, albeit unsubstantiated. Dr. Wormith was unaware that Melody’s sister, C., had also filed statement with police alleging Art had sexually assaulted her. 65) Dr. Wormith testified that although Art placed on the moderate-high risk category, there were mitigating factors which reduce that risk vis-à-vis Michael and David. Those factors are: (i) in excess of 20 years since conviction for sexual offence; (ii) his offences were against girls, not boys; and (iii) Art’s age and health are also factors which typically mitigate risk. 66) In sum, Dr. Wormith believes Art presents some, but minimal, risk of reoffending. However, that is qualified by the following remarks in his reporting letter. At page 6: [Art] denies that he sexually assaulted any of the girls, although he does acknowledge that he did do some sexually inappropriate things. This included walking around the house nude and masturbating in front of the girls. His stance at the time was that it was his house and he would dress as he pleased and do as he wished regardless of who was present. When challenged about the behaviour, he indicated that he now agrees that it was wrong and that his counseling sessions with Mr. Doug Harder assisted him in taking different perspective on the matter. Yet in recounting the incident, he still seems to subscribe to the “I’m king of my castle and when I’m there can do whatever please” principle. Then, at page 9: [Art] presents as single minded type of individual who holds his opinions very strongly. Family dynamics with their long history of arguing, fighting and not talking to one another indicate very seriously dysfunctional family. [Art’s] history of sexual offending appears, at least partly, to be at the root of these difficulties. His relationship with their daughter, [Melody], has been problematic, he acknowledges since she was about the age of sixteen. How much of this conflict is rooted in his inappropriate sexual behaviour with her remains unknown but certainly is probable contributor. Finally, at page 11, Dr. Wormith observes: The element of risk is present, in large part, simply because of his sexual offense history. The fact that he has, on three separate occasions been convicted of sexual offenses constitute what is referred to as “static” risk factor and will remain with him throughout his life, although as reflected above the magnitude of this risk decreases over time and it has indeed been many years since his last sexual offense. Inappropriate sexual behaviour with his daughter, for which he has never been prosecuted, may have occurred more recently, thus shortening the period of problem-free sexual misbehaviour. Secondly, his recounting of his sexual offenses and his explanations of them remain quite disquieting. His persistent denial and minimization of the severity of his actions remains in evidence in spite of what appears to have been fairly lengthy period of counseling. There remains an element of defiance to his justification for his behaviour in his earlier offenses. His outright denial of the four counts of sexual assault and account of the manner in which his case was handled in court are also of concern. Although the statistical evidence as to what extent these characteristics augment his risk is uncertain, they remain troublesome. Finally, other more recent actions suggest some question of judgment on [Art’s] part. His relatively recent fraud conviction in 2007, repeat of similar conviction in 2000 suggests an ongoing inclination to live outside the strictures of the law and conventional society. His run-in with an employee of the Ministry of Social Services suggests some ongoing interpersonal difficulties and perhaps an element of impulsivity and temper control, as does the ongoing difficulty with their daughter [Melody] although she is no doubt contributing significantly to the tension and strained relationship between them. Collectively, these events and implied characteristics of [Art] introduce another concern, that of personal judgment when it comes to interpersonal matters, which could impact on the nature of his parenting behaviour. 67) Having heard the evidence, and having observed Art, am inclined to agree with Dr. Wormith. In my view there appears to be minimum risk that Art would sexually assault the boys. However, that finding does not necessarily lead to conclusion that Art and Laura present meaningful opportunity for the boys to benefit from nurturing environment. 68) reiterate that there is no doubt Art and Laura love and wish the best for David and Michael. However, one of the best predictors of what will happen is to look to the past. An examination of the familial context of Art and Laura presents real concerns. 69) Firstly, there is the fact that Melody and her two sisters were permanently apprehended from Art and Laura in 1989 and committed to the Minister. Additionally, it is pertinent to observe that Art and Laura have three children and Art has three children from other partnerships. Of those six, Art and Laura are completely estranged from four. Although they have relationship with T., it is of short duration. Two of the children allege Art sexually assaulted them. 70) Their relationship with Melody is complicated and, tellingly, when Melody took the stand and was asked where she would like to see the boys placed, she replied that her preference was with Mary Stevens. That preference is no doubt because her relationship with Mary Stevens is less problematic than it is with her parents. Having said that, it is important to acknowledge that Melody said that in her opinion the boys would be in “good hands” regardless of whether they were placed with the Stevens or Art and Laura. 71) The Court is presented with two uneasy options. Placement with the Minister results with the boys continuing in foster care indefinitely unless they are adopted. While I accept the Stevens home is a positive and nurturing one, there is no question it not an ideal physical plant for nine people. Nonetheless, also accept that with organization, routine and discipline, it can function at satisfactory level. Further, if an order is made under s. 37(2), the boys have the opportunity to be adopted, which is always considered preferable to foster care. I cannot lightly preclude that possibility. 72) The other option is to return the children to Art and Laura. While they do love them, there are real questions that arise from their history and the reality of their ongoing estrangement from four of their six children. On balance, am compelled to agree with MSS that Art and Laura are not able to provide the boys with an acceptable opportunity or grounding from which they can meet their uncertain and challenging future. conclude the best interests of the boys lies in permanent placement with MSS. 73) Accordingly, I make the following orders: (i) I find that David and Michael are children in need of protection under s. 11(1)(b) of The Child and Family Services Act. Further, there will be an order under s. 37(2) placing the boys in the permanent care of the Minister. (ii) I order that for as long as the children are in foster care, that the Ministry make arrangements for the boys to have regular access to their mother and to Art and Laura. The conditions respecting such access shall be as determined by MSS to be in the best interests of David and Michael or as ordered by the Court. 74) There shall be no order as to costs. J. R. S. Smith
The Ministry seeks an order under s. 37(2) which is a permanent committal and is a precursor to the boys Michael and David being placed for adoption. Art and Laura, the maternal grandparents oppose the application and want the boys returned to their care. The mother, Melody, supported her parent's application for custody. HELD: The boys are in need of protection and there is an order placing the boys in the permanent care of the Minister. As long as the boys are in foster care, the Ministry will make arrangements for the boys to have regular access to their mother and to Art and Laura.  1) There is no doubt but that Art and Laura love and wish the best for the boys. However, there are real concerns about Art and Laura' familial context. There is the fact that Art and Laura's own children were apprehended in 1989 and committed to the Minister. It is pertinent to note Art and Laura are estranged from four of their six children.  Two of Art's children claim he sexually assaulted them. When Melody testified she said her first preference was that the boys be placed with Mary Stevens, their foster parent, but did acknowledge that the boys would be in good hands with Art and Laura. 2) While the Court accepts that the Stevens home is a positive and nurturing one, there is no question it is not an ideal physical place for 9 people. With organization, routine and discipline however, it can function at a satisfactory level. Further, if an order is made under s. 37(2), the boys have the opportunity to be adopted. The Court cannot lightly preclude that possibility.