E. J. GUNN REDACTED VERSION QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2016 SKQB 154 Date: 2016 05 02 Docket: FSM 55 of 2013 Judicial Centre: Regina, Family Law Division IN THE MATTER OF HEARING UNDER THE CHILD AND FAMILY SERVICES ACT, SS 1989-90, C-7.2 AND IN THE MATTER OF THE CHILD: J.G. BORN …, 2001 H.G., BORN…, 2003 Counsel: Karen Hindle and Michael Morris for the Ministry Sherri Woods for the children JUDGMENT MEGAW J. MAY 2, 2016 INTRODUCTION [1] The Ministry seeks permanent wardship order with respect to two children. The parents of the children, despite being more or less involved with the proceedings for some of the period of time, did not appear for the trial of the action. While this failure to show was unfortunate, it does not change the obligation of the court with respect to the decision to be made. Accordingly, the Ministry presented its evidence completely and provided full and complete argument in support of its recommendation in this matter. Similarly, counsel for the children participated fully in the trial process and presented argument in advocating for the interests of the children. [2] Decisions like those the court is called upon to make in this case are difficult. They are life altering for so many people: the children, their parents, the extended family, the childcare workers, the foster parents and their extended family. These decisions are sometimes made more difficult when the confluence of scarcity of both financial and personal resources, lack of urgency and lack of attention cause the initial problems to become more perplexing, if not insurmountable. This confluence is present not necessarily through the fault of the principal actors. Rather, it is present because circumstances dictate it to be so. [3] While happy is not word often seen in these judgments, happily that confluence did not occur here. Rather, from tragic and wrong beginning, all of the necessary stars have lined up. The children have proven resilient. The right child protection team was put in place and remained in place. The right professional assistance was sought out and remained committed to these children. Last, but by no means least, the right foster parents were located and the children were allowed to remain in this consistent loving care throughout their time as wards of the Ministry. [4] give this long introduction because there are cases where no satisfactory results have occurred with children and the involvement of the Ministry. In the case before me, good people have done good work on behalf of good children, who absolutely deserve the work that was done. [5] There are two children involved in this matter: J.G., born …, 2001 and H.G., born …, 2003. Their parents are C.G. and S.G. C.G. had been peripherally involved with the raising of these children. Until July 7, 2013, S.G. had been the primary caregiver for both J.G. and H.G. [6] On July 7, 2013, the lives of these children changed indelibly. On that night, they were assaulted by their father. He had returned to the home intoxicated. He had taken turns assaulting first J.G. and then H.G. As one child attempted to assist the other, they were subjected to further assaults. At the time, the children were 12 and years old. While it appears from the materials both of these children had previously been subjected to their father’s physical manifestation of his anger, it appears this was the night when action was taken. [7] As result of complaint to the police by concerned neighbour, officers attended and arrested S.G. for the assault on his two children. Mobile Crisis attended the home and apprehended the two children. S.G. was taken to cells. The children were taken to foster home located in the Gravelbourg, Saskatchewan vicinity. The foster parents were T.A. and [8] S.G. pled guilty to the assaults very soon after he was charged. He was sentenced to period of six months incarceration with probation to follow. Shortly thereafter, he pled guilty to previous domestic violence assault on his then partner and received an additional eight month term of incarceration. It appears from the material filed he has history of violent behaviour on various parties, from his children, through his then partners to his parents. It appears most, if not all, of his violent behaviours are directed at either women or children. It further appears he has provided little to the Ministry to indicate he has either learned from his violent past or has taken steps to discover strategies to overcome his difficulties. [9] C.G. has been, for the most part, an absentee parent. The Ministry learned she suffers from addiction issues. She was described by S.G. as being “crack head” in one of his discussions with Ministry personnel. Following the apprehension of the children, the Ministry arranged for seven visits between C.G. and the children. C.G. managed to attend four. While those visits were reported to have gone very well, there have been no visits since November, 2013 and there have been no requests for visits since that time. The missed visits had an adverse emotional reaction on the children. C.G. has not been heard from since that time and her whereabouts are unknown. [10] S.G. has had no visits with the children. Application was made to court to attempt to compel visits. The application was denied by the court. The view of Ministry staff and healthcare professionals was that visitations with S.G. were not in the best interests of these children. However, in December, 2014, following consultation with the healthcare professional, S.G. was permitted to provide letter to each of the children. They, in turn, provided their response. There has been no further direct contact since that time. It appears for brief period of time J.G. may have had “Facebook” contact, but he has since deleted that from his “Facebook” account. [11] Following the initial apprehension, the Ministry made application for four month temporary order with respect to the children. That order was granted by Danyliuk J. on August 6, 2013. Following the expiry of that order, the Ministry made application for further three month temporary order. That order was granted by Kraus J. on December 31, 2013. The temporary orders were sought, not because the Ministry was considering return of the children to the parents, but rather because the Ministry was of the view they needed an opportunity to determine what steps should be taken to advance the best interests of these children. The Ministry determined to pursue permanent wardship order on April 8, 2014. [12] The child protection file was originally handled by Ashley Young of the Regina Children’s Justice Centre. She was the child protection arm of the Centre, working in conjunction with the Regina City Police, as these children had been abused. The actual child protection worker assigned was Kim Schleede and she remained involved in the file through to very recently. The file was transferred to child protection worker Jennifer Bender in early November, 2015. Despite this transfer, it appears Ms. Schleede stayed involved in her new role as an assistant supervisor still in child protection services. [13] Ms. Schleede was involved in setting up the visitations with C.G. She was also involved in discussions with S.G. During her discussions with S.G., he was variously interested in the children and interested in berating Ms. Schleede through the use of vulgar and inappropriate language. Presumably these instances were but continuation of his assault on others, and women in particular. [14] When the children were initially apprehended, they were examined in the Emergency Ward of the Regina General Hospital. The attending physician’s reports were submitted in evidence (Exhibit M1, Tabs 10(a) and (b)). In both cases, number of bruises were found on both the children’s faces and torsos. These bruises, in the opinion of the physician, confirmed the accounts given by the children that they were kicked and struck by their father on the night of July 7, 2013. [15] Incidentally, while S.G. did plead guilty to these assaults, he resiled from that guilt in his conversations with Ms. Schleede. To her, he denied having assaulted the children and suggested he pled guilty to avoid the children having to testify in the matter. Additionally, and much more disconcerting, he told her that if, in fact, he had kicked and struck the children the number of times they alleged, “they would be dead.” Chilling is an appropriate word to describe this conversation. [16] The child protection worker, Ms. Schleede, had discussion with C.G. at the time of the pre-trial conference. Ms. Schleede recounted C.G. had indicated she had run into extreme difficulty with the individual who supplied her with her drugs and also with law enforcement. She was apparently heavily involved in the drug scene and was both accused and witness in some type of criminal proceedings. This information is quite incomplete. It may be concluded C.G. was experiencing ongoing addictions issues and was in no position to be parenting these children, even had she indicated desire to so parent. [17] Both children were referred to registered psychologist, Shantelle Szuch. She began seeing the children in November, 2013. She was qualified as an expert in the area of child and adolescent psychology, including trauma focused therapy. She engaged this form of therapy with these children. She worked with both the children and the foster mother through to mid-March, 2015. She continues to work with all of them, but now on an as needed basis. This move to non-treatment is in accordance with the generally accepted professional view that it is not appropriate to “keep clients in ongoing, long term therapy once improvement has been observed.” (Exhibit M1, Tab 17, Letter of Shantelle Szuch) [18] And, according to the evidence, improvement was shown. Both children initially presented as angry, aggressive and scared. They reacted inappropriately emotionally and, on occasion, physically. Ms. Szuch determined these reactions were caused by the trauma they had been exposed to. J.G. was difficult to handle and was on the verge of being expelled from his new school. H.G. was reacting badly at her new home. To top matters off, H.G. was determined to be cognitively delayed and was functioning at an age considerably less than her chronological age. Her intellectual skills were quite stunted. As an aside, the psychologist was unable to assist on whether this intellectual deficit was the result of organic circumstances or the trauma to which she had been exposed. [19] This then brings me to the foster parents. In this case, the court was treated to hearing evidence from T.A. Without reservation, am able to say this individual is genuinely committed to the welfare of the children in her charge. She is devoted, in particular, to the two children in issue here. Through the course of her time as foster parent, she has had some 150 children involved in the system go through her home. cannot help but think those children are the better for their stay with her and her family. [20] At the present time, T.A. and her husband have 10 children living in their home: four are their biological children; five are foster children; and, one is adopted following being foster child. The children range in age from 11 to 18 years old. She testified that when J.G. and H.G. first came to them, there were emotional and physical outbursts. While she was understated in her comments, it is surmised this initial period was quite difficult. She was involved in their home life, their school life and their treatment with Ms. Szuch. [21] Throughout the time T.A. and K.A. have been involved with these children, it appears the kids have made nothing short of remarkable turnaround. While things are not perfect, as few familial relations are, they are certainly markedly better and continually moving in the right direction. The children call their foster parents mother and father. J.G. has developed into quite the little athlete and is doing exceedingly well academically. H.G. is getting assistance with her intellectual difficulties. She is involved in extra-curricular activities such as dancing. Both have positive peer roles in the home and have developed quite close bonds with the other children in the home. [22] T.S. gave her evidence in an exceedingly understated and humble manner. She was quite matter of fact in recounting her involvement in the turnaround of these children. But, she was quite pointed in providing the before and after picture for these kids. Her work with these children is nothing short of remarkable. Both have developed deep emotional bond with her. H.G. in particular is very attached. The children are lucky to have her in their lives. It appears she feels lucky to have these children, and the others in her brood, in her life. [23] Dr. Greenough, registered doctoral psychologist, was retained by the Ministry to complete parenting capacity assessment report to assist in formulating plan for the children. His report was marked as Exhibit M8 at the trial. His recommendations were blunt, the children should not be returned to their father’s care now, or in the foreseeable future. Further, he was not in support of the father having any access to the children. In his words, such access “will exacerbate their trauma and compromise their movement to healthy adjustment.” [24] The children were represented by counsel and have had the benefit of that consistent counsel for in excess of two years. Ms. Woods, in her role as advocate for the children, advised they wish to remain living with their foster parents. The children are concerned about the outcome of this trial and the continuing uncertainty of their permanent living arrangements. The foster mother confirmed the children have advised her they seek to remain living in her home. This information has also been provided to the child protection workers. [25] As indicated, the parents did not participate in the trial. was advised by counsel neither parent had contact with the Ministry for some period of time. While unfortunate, counsel did good job of marshalling the evidence and ensuring complete picture was presented to the court. While it would have been preferable to have heard from the parents, am satisfied received all of the available evidence concerning these children. [26] The Ministry seeks permanent order with respect to these children. Such an order removes all parental rights to the children and would come without conditions attached. The only real alternative on the facts presented here is long-term order. This type of order would preserve parental rights and would also leave open the door for variation application down the road. While there are other options in The Child and Family Services Act, SS 1989-90, C-7.2 [Act], like return of the children to their parents or an ongoing temporary order, none are appropriate on the facts of this case. Similarly, there is no indication of any person being available from the parents’ families to take responsibility for these children. [27] The method to be used to analyse case is set forth in (Re) S.F., 2009 SKCA 121 (CanLII), 343 Sask 112 [S.F.] and Saskatchewan (Minister of Social Services) E.K.S. (1996), 1996 CanLII 7131 (SK QB), 146 Sask 46 (QB) [E.K.S.] and (Re) T.C., 2014 SKQB 115 (CanLII), 444 Sask 10. It was most recently set forth in the decision of (Re) N.B., 2015 SKQB 171 (CanLII). [28] The first step is to determine whether the child is in need of protection pursuant to s. 11 of the Act. finding of such need requires the court to then look to s. 37 of the Act to determine the type of order to put in place. In considering that order, the court may consider the recommendation of the Ministry but will be guided by the best interests of the child as set forth in s. of the Act. [29] These various considerations occur against the overarching principle set forth in s. of the Act: The purpose of this Act is to promote the well-being of children in need of protection by offering, wherever appropriate, services that are designed to maintain, support and preserve the family in the least disruptive manner. [30] The determination of whether child is in need of protection is arrived at from review of the items set forth in s. 11: 11 child is in need of protection where: (a) as result of action or omission by the child’s parent: (i) the child has suffered or is likely to suffer physical harm; (ii) the child has suffered or is likely to suffer serious impairment of mental or emotional functioning; (iii) the child has been or is likely to be exposed to harmful interaction for sexual purpose, including involvement in prostitution and including conduct that may amount to an offence within the meaning of the Criminal Code; (iv) medical, surgical or other recognized remedial care or treatment that is considered essential by duly qualified medical practitioner has not been or is not likely to be provided to the child; (v) the child’s development is likely to be seriously impaired by failure to remedy mental, emotional or developmental condition; or (vi) the child has been exposed to domestic violence or severe domestic disharmony that is likely to result in physical or emotional harm to the child; (b) there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur; or (c) the child is less than 12 years of age and: (i) there are reasonable and probable grounds to believe that: (A) the child has committed an act that, if the child were 12 years of age or more, would constitute an offence under the Criminal Code, the Narcotic Control Act (Canada) or Part III or Part IV of the Food and Drug Act (Canada); and (B) family services are necessary to prevent recurrence; and (ii) the child’s parent is unable or unwilling to provide for the child’s needs. [31] The best interests of the children are arrived at by considering the specific direction of s. 4: Where person or court is required by any provision of this Act other than subsection 49(2) to determine the best interests of child, the person or court shall take into account: (a) the quality of the relationships that the child has with any person who may have close connection with the child; (b) the child’s physical, mental and emotional level of development; (c) the child’s emotional, cultural, physical, psychological and spiritual needs; (d) the home environment proposed to be provided for the child; (e) the plans for the care of the child of the person to whom it is proposed that the custody of the child be entrusted; (f) where practicable, the child’s wishes, having regard to the age and level of the child’s development; (g) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity; and (h) the effect on the child of delay in making decision. [32] In an oft-quoted passage, the Court of Appeal, in S.F., agreed with McIntyre J.’s determination in E.K.S. in outlining the principles to be applied in deciding the options available under s. 37 of the Act to carry out those best interests of the child (at para. 29): 29 In E.K.S. McIntyre J. set out the principles to be followed by court when determining whether any options available in s. 37(1) are appropriate as follows: 1. The welfare of the child is the paramount (but not the sole) consideration. The wishes of the parent must be given independent subordinate weight. The weight will depend on the circumstances in each case. (R. v. Saskatchewan (Minister of Social Services), 1974 CanLII 959 (SK QB), [1974] W.W.R. 388, at p. 393 (Sask. Q.B.)) 2. Section 37(4)(a) does not declare that only the best interests of the child shall be considered. The implication is that the court may be mindful of other matters. As well, the list in s. is not exhaustive in determining the best interests of the child. (Saskatchewan (Minister of Social Services) v. R.G. (1990), 1990 CanLII 7428 (SK QB), 88 Sask. R. 262 (U.F.C.)) 3. Any determination made must be in the context of the objective of the Act, set out in s. 3. (M.A.C.) v. Saskatchewan (Minister of Social Services) (1993), 1993 CanLII 9025 (SK QB), 110 Sask. R. 81; 46 R.F.L. (3d) 174 (Q.B.)) 4. The court may consider the recommendation of the officer (representative of the Department) but is not bound thereby. 5. The court, having determined the child to be in need of protection, has determined that the level of parenting care is below the minimum tolerated by society. Therefore, in determining whether an order under s. 37(1) is appropriate, including conditions which could be attached, the court must be satisfied either: (a)The parent or parents have altered his or her ways such that the circumstances which gave rise to the determination that the child was in need of protection no longer exist, or (b)The court is satisfied that there is realistic plan or reasonable basis upon which to conclude that the necessary changes can occur within reasonable time whereby the children can be safely returned to the care of their parent or parents. (Saskatchewan (Minister of Social Services) v. A.J. and C.J. (1987), 1987 CanLII 4660 (SK CA), 58 Sask. R. 246 (C.A.); Saskatchewan (Minister of Social Services) v. M.L. and M.L.M. (1988), 1988 CanLII 4925 (SK QB), 71 Sask. R. 110 (U.F.C.); M.A.C. v. Saskatchewan (Minister of Social Services), supra; Saskatchewan (Minister of Social Services) v. R.G., supra.) [50] The court must look at various factors including (without meaning to be exhaustive of the possibilities) any changes in circumstance or conduct of the parent that has occurred or is proposed, any plan of corrective action that is being advanced, the nature of any resources suggested and the time frames which may be involved. The options in s. 37(1) are premised upon reasonable prospect of change, within reasonable length of time and reasonable use of resources if needed. [51] In making an assessment as to whether an order under s. 37(1) is appropriate the court must do so on the basis of the evidence before it. As noted by the Court of Appeal in Saskatchewan (Minister of Social Services) v. A.J. and C.J., supra, p. at 251: "However, the following is self-evident. Where, as here, children have been placed into the temporary custody of the Minister, and the parents wish to have the children returned to them, they must make efforts to improve or remove the conditions or circumstances in the home which have resulted in the children being taken from the parents ..." [52] Counsel for the department said "good intentions are not sufficient" and relied upon the following observations of the Manitoba Court of Appeal in Children's Aid Society of Winnipeg v. Redwood (1980), 19 R.F.L. (2d) 232 (Man. C.A.), at p. 234: "... The test is: What is in the best interests of these children, and not whether the mother has merely seen the light and is now prepared to be good mother, while in the past, on her own admission, she was not such. The test is whether the mother has in fact turned new leaf and whether she is now able to give to the children the care which is in their best interests. Good intentions are not sufficient. As the chief justice of this court, speaking in an unanimous decision in another case, stated so ably: 'to give this mother another chance is to give these children one less chance in life.'" [53] The foregoing comments must be applied with caution. agree that good intentions by themselves are not sufficient. The question in every instance must be whether, on all of the evidence before the court, the court is satisfied sufficient change can occur within the context of an order under s. 37(1) such that it is in the best interests of the child to make such an order. Given the objective of the Act as set out in s. 3, permanent committal does not ipso facto follow just because the parent has not yet turned that new leaf. [33] In the case before me, I conclude these children, as at the date of the expiry of the last order of Kraus J., continue to be children in need of protection. I arrive at this conclusion by applying ss. 11(a)(1) and (b). The evidence discloses the father has taken no measurable steps to deal with his anger, violence and alcohol issues. He has lengthy history of violent acts against those who are ill-positioned to defend against such violence. It appears this violence occurs when he is abstaining from alcohol (in the case of his last known partner) and when he is intoxicated (in the case of these children). His comments to the child protection worker in his telephone conversations, regrettably, confirm he continues to struggle with anger and violent emotions. [34] These children were subjected to violence on July 7, 2013. The statements of the children at that time suggest they had been subjected to this violence on previous occasions. Nothing has changed with the father. Accordingly these children continue to be in need of protection as they are likely to suffer physical harm at the hands of their father. [35] In addition, the children’s emotional and psychological state requires them to continue to be in need of protection. The evidence showed the children struggle on an ongoing basis from the trauma they experienced at the hands of their father. [36] As well, there does not appear to be any adult person able or willing to provide for their needs. As such, the children are further exposed to emotional and physical harm. The mother continues to suffer from addictions issues. She is engaged with the criminal justice system. She is involved in serious matters which, obviously, preclude the attention to children. The father has been absent from the children’s lives this entire period of time. [37] Neither parent has taken an active interest in these children for almost three years. The mother has had no contact with the children since missing her last visit at the end of 2013. The father, once the letters were written, has had no involvement with the Ministry. Neither appeared at the trial. It is apparent neither is available to care for these children. [38] The next step is to determine the appropriate order. As indicated, the recommendation of the Ministry is for permanent order. The best interests of these children compel such an order being made. arrive at this conclusion for the following reasons. [39] The children have developed close, loving bond with their foster parents. They have been in this relationship for almost three years. The efforts of both the children and their foster mother have achieved remarkable results. It is imperative in the lives of these children this relationship be continued and be made permanent. [40] J.G.’s intellectual and emotional development has seen steady trajectory upwards. He is bright young man and is doing very well in school. This development appears to have occurred since he was placed with the foster home. He is also learning to control his aggression and inappropriate behaviour. This is occurring through his hard work, but it is also occurring through the efforts of his foster parents and his support network. This support network includes Ms. Szuch, his school officials and the child protection workers. This development must be allowed to continue and that can only happen if he is committed permanently to the care of the Ministry in the hands of T.A. and K.A. [41] H.G.’s cognitive deficits are recognized and dealt with by the foster parents. While she struggles academically, all are working with her to develop her to her maximum potential. She is learning to control her aggression and outbursts. This occurs through the complete support network but appears to be principally the result of the loving, gentle but firm, guidance of T.A. This ongoing development can only happen if she is permanently committed to the care of the Ministry in the hands of T.A. and K.A.. [42] The proposal going forward is that both children will remain in the care of the foster parents. As T.A. put it in her evidence, she is committed to parenting these children through to their 18th birthday “and beyond”. She, and her husband, are these children’s parents for life. They have loving home in which appropriate behaviour, emotional development and academic achievement are emphasized and developed. Extra-curricular activities for all of the children, and for these two in particular, are plentiful and add to the development of both J.G. and H.G. [43] The children’s wishes, as expressed through T.A., the child protection team, Ms. Szuch and their counsel are that they wish to reside permanently with T.A. and K.A. J.G. puts it that he wants to change his last name to A. Their counsel describes J.G.’s wishes as informed. She describes H.G.’s wishes as being the practical result of what is in her best interests. Regardless, the clear wishes of these children, as expressed repeatedly and unwaveringly, is to reside permanently with their present parents. put weight on these wishes in making my decision. [44] The conclusion of Dr. Greenough is short and pointed: there is to be no further contact with the father. This conclusion of doctoral, registered psychologist carries weight in the circumstances before me. The children’s psychological best interests require permanent order to be made. [45] As indicated in the introduction, the continuity exhibited in this case is quite remarkable. It is tribute to those involved. More importantly, the children have been the real beneficiaries of this level of consistency and continuity. Their protection, mental health assistance, academic help, psychological assistance and parenting have been conducted cooperatively between the various agencies and persons. It is unusual to see this for whole host of reasons, none of which cast aspersions on any of the agencies involved. It obviously worked here and it is imperative this continuity continue into the future. [46] Finally, consider the effect of delay in making decision through long-term order. The children were aware this trial was approaching. It is appropriate in these circumstances that they did know. They were aware of their situation and information on the legal process allowed those advising and counselling them to include them in this process. [47] However, that knowledge brought with it anxiety. It resulted in reversion to some of the children’s previous behaviour. It appears, for these children to gain the full benefit of the situation in which they find themselves, they must know their situation is permanent. They must know their home is their family home and will not be changing now or in the future. Such further contact will practically be dictated by the children as they age. [48] For all of these reasons, I determine a permanent order with respect to these children is the appropriate order to make. have determined to make no additional recommendations to the Ministry. am mindful of the comments of Dr. Greenough and leave any further recommendations in the care of the Ministry. CONCLUSION [49] There shall be an order pursuant to s. 37(2) of the Act permanently committing the children, J.G. and H.G., to the care of the Minister. am confident they are in good hands with T.A. and K.A. J. M. T. MEGAW
HELD: The order was granted. Following the expiry of the current temporary order, the court found that the children were in need of protection pursuant to s. 11 of The Child and Family Services Act. As the father had taken no steps to deal with his anger, violence and alcohol issues, the children continued to be in need of protection as they were likely to suffer physical harm at his hands. Their psychological well-being required that they remain in protection to allow them to deal with the trauma they had suffered while they were in his care. Therefore, the court found that because the children were doing well in foster care and did not wish to be returned to their father and that the expert had advised against them having any further contact with him, it would make a permanent order rather than a long-term order.