J. IN THE FAMILY COURT OF NOVA SCOTIA Citation: Family and Children’s Services of Yarmouth County v. T.S., V.M. R.S. and F.M., 2004 NSFC 13 Date: 20040915 Docket: 03Y027089 Registry: Yarmouth Between: Family and Children’s Services of Yarmouth County v. T.S., V.M., R.S. and F.M. Respondent Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on February 5, 2009. Publication restriction: Publishers 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 heading before publication. Section 94 provides: 94(1) No person shall publish or make public information that has the effect of identifying child who is witness or participant in hearing or the subject of proceeding pursuant to this Act, or parent or guardian, foster parent or relative of the child. Judge: The Honourable Chief Judge John D. Comeau Heard: Wednesday, July 21, 2004,Yarmoututh, Nova Scotia Written Decision: Friday, September 24, 2004 Counsel: Martin J. Pink, Q.C., for the Applicant Timothy Landry, Esq., for the Respondent, T.S. V.M., not present and not represented Hugh Robichaud, Esq., for the Respondent, R.S. Patricia Reardon, Esq., for the Respondent, F.M. THE APPLICATION: [1] This is disposition hearing under s. 41(1) of the Children and Family Services Act respecting the child, D., born [in 2003]. THE ISSUES: Placement. Consideration of parenting plans of the paternal and maternal grandmothers as to placement under the Act for the long term best interests of the child. 2. Sibling contact and bonding reviewed. [4] The parties agree that the child is in need of protective services. Evidence used at the protection hearing is not disputed. This evidence is contained in the affidavit of Sarah Wallace, agent, Family and Children’s Services of Yarmouth County. [5] There are two children of the relationship between the parties; D., born [in 2003], and C., born [in 2002]. C. lives with the maternal grandmother in the Halifax area. [6] The father, V.M., is a convicted child abuser whose name appears on the Child Abuse Register, having been sentenced to thirty-nine (39) months in prison as a result of the conviction. His access to his son, C., is by court order, supervised only, but there was evidence he had the care of his son in an unsupervised situation. [7] Referrals were made with respect to D. from the Public Health nurse concerning parenting ability and missed medical appointments. V.M. also has unsupervised care of D. on occasion. [8] family support worker attempted to provide assistance to the parties but there was an indication baby food was being fed to the child when she was not quite four months old and not ready for it. [9] Concerns were also expressed by the local pediatrician, Dr. Dominique Couture. [10] Both parties were very uncooperative with the agency and it is clear neither party was willing to work with assistance towards learning sufficient parenting skills to take care of the child. PROFESSIONAL REPORTS: [11] I.W.K. Health Centre Assessment Summary: “Unfortunately, both parents do not have the ability to successfully parent D. without there being sufficient risks to D.’s healthy development. It is due to this that this report makes the sole recommendation that D. is child in need of protection who would ideally be placed for adoption.” [12] Dr. Michael S. Donaldson, Family Therapist/Custody Evaluator This report was commissioned by the court with the consent of the parties as follows: “Home Study Report to determine if grandparents (paternal or maternal) are able to look after the child.” [13] As result, Dr. Donaldson interviewed the paternal grandmother total of 3½ hours and the maternal grandmother total of 2½ hours. Collateral information was gained by reports or personal telephone interviews with Sarah Wallace, Child Protection Worker. [14] He recommends that D. be placed in the sole custody of the paternal grandmother. AGENCY PLAN: [15] The agency is requesting the following disposition: “The child, D., born [in 2003], shall be placed in the permanent care and custody of F.M., the paternal grandmother, and that the matter be dismissed pursuant to s. 42(1)(a) of the Children and Family Services Act.” [16] The paternal grandmother has made application for leave to apply for custody under the Maintenance and Custody Act. She has not filed formal plan of care. She relies on the agency plan. MATERNAL GRANDMOTHER’S PLAN OF CARE: [17] The maternal grandmother’s plan of care is as follows: “The child, D., shall be placed in the permanent care and custody of R.S., the maternal grandmother and that the matter be dismissed pursuant to s. 42(1)(a) of the Children and Family Services Act.” [18] She has not made application under the Maintenance and Custody Act but because the issues before the court are the parenting plans of both grandmothers, she will be joined as party to the proceeding started by the maternal grandmother under the Maintenance and Custody Act 03Y027089. [19] It should be noted that both grandmother’s indicate in their plans they would provide supervised access to both parents on frequent and regular basis. EVIDENCE IN SUPPORT OF THE RESPECTIVE PLANS: [20] The court heard evidence by the parties with respect to their plan of care. [21] The maternal grandmother, R.S., (45 years old), lives in two bedroom apartment in [the Halifax Regional Municipality], Nova Scotia, but would get larger one if she got custody. son, S., 18 years old lives there as well as D.’s brother, C. (28 months old) and they have very good relationship as he is with her all day every day. Her reasons for custody include the fact that she is her grandmother and he should be “raised” with her brother. The paternal grandmother was born [in 1938] and R.S., who is twenty years younger, has concerns about her age and what would happen to D. if she died. [22] There was some question about her (maternal grandmother) past and present use of alcohol or drugs but she says that is in the past and she only uses alcohol on occasion. The reason she has not visited with D. regularly is because of the distance she lives from the [area]. [23] D.’s mother supports the maternal grandmother in her quest to get custody and would move to the city if she gets custody. Another child of the maternal grandmother, R.S., also supports her having custody and expressed the good care C., D.’s brother, gets. [24] The paternal grandmother, F.M., was born in 1938. She lives with man the same age in [...], New Brunswick, and would take D. there and care for her. She had thirteen children and has thirty three (33) grandchildren and number of great grandchildren. [25] At the present time she resides in [...] because of the regular contact she has had with D. since apprehension. This she stresses, citing the maternal grandmother’s lack of contact. [26] She indicated that if there was problem with her caring for the child (age, health, death) she would go to T., the mother’s sister. [27] Although number of her children have been in regular conflict with the law, she says she has always exercised proper parenting skills. THE LAW: Section 42(1): Disposition Order 42(1) At the conclusion of the Disposition hearing, the court shall make one of the following orders, in the child’s best interests; (a) dismiss the matter; (b) the child shall remain in or be returned to the care and custody of parent or guardian, subject to the supervision of the agency, or specified period, in accordance with Section 43; (c) the child shall remain in or be returned to the care and custody of person other than parent or guardian, with the consent of that other person, subject to the supervision of the agency, for specified period, in accordance with Section 43; (d) the child shall be placed in the temporary care and custody of the agency for specified period, in accordance with Sections 44 and 45; (e) the child shall be placed in the temporary care and custody of the agency pursuant to clause (d) for specified period and then be returned to parent or guardian or other person pursuant to clauses (b) or (c) for specified period, in accordance with Section 43 to 45; (f) the child shall be placed in the permanent care and custody of the agency, in accordance with Section 47. Section 42(2): Restriction on Removal of Child 42(2) The court shall not make an order removing the child from the care of parent or guardian unless the court is satisfied that less intrusive alternatives, including services to promote the integrity of the family pursuant to Section 13, (a) have been attempted and have failed; (b) have been refused by the parent or guardian; or (c) would be inadequate to protect the child, Section 41(5): Duty of court upon making order 41(5) Where the court makes disposition order, the court shall give (a) statement of the plan for the child’s care that the court is applying in its decision; and (b) the reasons for its decision, including; (i) statement of the evidence on which the court bases its decision, and (ii) where the disposition order has the effect of removing or keeping the child from the care or custody of the parent or guardian, statement of the reasons why the child cannot adequately protected while in the care or custody of the parent or guardian. PLACEMENT CONSIDERATIONS SIBLINGS: [29] Section 42(3) provides for consideration of placement with relative. The importance of keeping siblings together is recognized in s. 44(3) where an order for temporary care and custody is made. Section 44(3) Where the agency places child who is the subject of an order for temporary care and custody, the agency shall, where practicable, in order to ensure the best interests of the child are served, take into account; (a) the desirability of keeping brothers and sisters in the same family unit. [30] The court has duty to look at all plans from respective parties. This is statutory requirement and the burden of establishing an alternative to parental placement is squarely on the proponent. [31] Saunders, J.A., in Children’s Aid Society of Halifax v. T.B. [2001] N.S.J. No. 225 (N.S.C.A.) describes the burden or persuasion on the proponent of family (relative) placement at p. 10. “Quite apart from the statutory component, there are sound practical policy reasons for fixing the proponent of family placement with the burden of persuasion that have described. The things that motivate alternative proposals for family placement in child custody matters may be as varied as the factors that prompted the family crisis in the first place. In many cases, relative’s offer to provide shelter, love and support to another parent’s child will be driven by genuine affection and willingness to help. But in other cases, offers of assistance may be prompted by harsh, yet subtle catalysts, including threats or other forms of coercion by those whose power or control over the proposed custodian may go well beyond the current judicial proceeding. This reality may be quite difficult to discern; all the more reason to expect that the individual who volunteers to serve as an alternative family placement, be obliged to demonstrate that the proposed plan is workable, well motivated and worthy of serious consideration.” [32] The issue of separation of siblings is just one factor in considering an alternative (relative) placement. In considering this issue the court has reviewed the following decisions: [33] Mitchell v. Mitchell, 2002 BCSC 31 (CanLII), 2002 Carswell B.C. 37, 2002 B.C.S.C. 31 (S.C.) Johnson v. Johnson 2002 Carswell B.C. 311 and Boomhour v. Boomhour (2002) Carswell Ont. 2626, 31 R.F.L. (5th) 48 (S.C.J.) This is serious consideration. CONCLUSIONS/DECISION: [34] The agency, in its plan of care, supports alternative placement with the paternal grandmother. They believe she is more connected to the child and has taken more interest in the long term care than has the maternal grandmother who is asking for care and control of the child. [35] The report and assessment of the I.W.K. does not support the agency plan. They recommend the child be placed for adoption. It should, however, be noted that the I.W.K. assessors were only considering the parents’ ability to provide long term care. [36] Both grandparents who are putting forth plan are somewhat critical of the other’s ability to parent. In order to determine which is the workable plan in the best interests of the child, there are number of factors to be looked at with respect to the benefits or weaknesses of both parties. [37] Paternal Grandmother [38] She is 66 years old and lives with man about that age, in other words, both are senior citizens and reside in [...] New Brunswick. The evidence discloses that number of her children have, because of their actions (trouble with the law over the years) brought her parenting into question. She does have stable home and the child would live alone with her and common law husband. It is clear that she has visited with the child while in care and taken what is considered great interest. [39] There are three negatives that should be considered; the senior age of the proposed custodian, her past parenting ability and the fact no other children or siblings reside in her home. The Maternal Grandmother [40] She is 45 years old and lives in [the Halifax Regional Municipality] and lives with her son who is 18 years of age. The child (D.’s brother) lives there as she has custody of him. He is 28 months old and she spends all day, every day, with him. She believes siblings should be together and her daughter (D.’s mother) supports her. In fact, the mother would move at or near [the area] so she could see her child on occasion, if the maternal grandmother gets custody. [41] The negative aspect raised in the evidence is that there was some question about her past and present use of alcohol and drugs. She says this is in the past and there is no evidence before the court that this is not so. [42] There is some testimony from another family member that the maternal grandmother has and is providing good and adequate care for D.’s brother. [43] Mr. Donaldson, in his report, expresses some concern over the maternal grandmother’s parenting plan; “...it is my opinion that F.M. (the paternal grandmother) is able to provide for the needs of child whereas R.S. (the maternal grandmother) is not in position to do so at this time. Were D. to be raised in the care of R.S. (maternal grandmother) she would be raised in an environment that could only be described as impoverished and unstable. Given the concerns raised in this assessment regarding inadequacies in R.S.’s parenting capacity, it would seem an unnecessary risk to D. to not place her with F.M.. Risks, such as her inability to adequately nurture D., to provide for her materially, to not place her in an environment of risk, etcetera, are evident.” [44] Mr. Donaldson does not see any problem with the paternal grandmother’s age. [45] The issue of separation of siblings has been addressed by the courts in numerous custody cases. In Zinck v. Zinck (1973), 1973 CanLII 1247 (NS CA), N.S.R. (2d) 622, the Nova Scotia Appeal Division discussed the use of this factor. “The appellant contended that the learned trial judge had disregarded rule that children should not be separated from each other unless “absolutely necessary” (a phrase used in Bromley on Family Law, 3rd ed., p. 310). do not think that this proposition should be elevated to principle or rule of law. It is undoubtedly desirable, if it can be accomplished, to keep children of family together, so that they may share the affection and support of each other and grow up with sense of family solidarity. This, however, is only one factor of the many that must be balanced and considered in determining what is in the best interest of the individual children respectively.” [46] These are very young children and there is no evidence of bond between them. This does not, however, preclude consideration of future bonding if there is enough contact. [47] Considering all the evidence before the court, including the two plans of care, there is a bond between the paternal grandmother and the child. She would facilitate access and protect the child from her own son whose access must always be supervised. She is better set up in her home to receive the child. She is more financially stable. The maternal grandmother indicated she would have to move to larger residence and would do that if she got custody. [48] It is in the best interest of the child, D., that this matter be dismissed and by separate order, the court will grant leave to the paternal grandmother to apply for custody. An order will issue under that Act (Maintenance and Custody Act) granting custody to the paternal grandmother who will be required to facilitate access amongst the various parties, some of which will be supervised within her discretion. John D. Comeau Chief Judge of the Family Court for the Province of Nova Scotia
The mother was unable to care for the child and the father, who had been convicted of sexual assault, was only entitled to supervised access. Both the paternal and maternal grandmothers presented plans of care to the court, with the paternal grandmother seeking custody and the maternal grandmother seeking care and control of the child. The child had a younger sibling who was in the maternal grandmother's custody and her daughter, the mother of the child, supported the plan of the maternal grandmother. The Agency supported the paternal grandmother. Custody granted to the paternal grandmother with reasonable access to the maternal grandmother and supervised access to the parents. The paternal grandmother was better able to care for the child financially and her circumstances were such that it was in the child's best interests to grant her custody. The issue of separation of siblings was only one factor in considering an alternative (relative) placement; the children were very young and there was no evidence of a bond between them.