SCHERMAN REDACTED VERSION QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 308 Date: 2017 10 12 Docket: FSM of 2015 Judicial Centre: Estevan IN THE MATTER OF HEARING UNDER THE CHILD AND FAMILY SERVICES ACT, SS 1989-90, C-7.2 AND IN THE MATTER OF C.T., BORN …, 2015 Appearing: Jeremy Ellergodt for the Minister Khurshed Chowdury for the respondent-father, A.T. A.R. self-represented respondent-mother JUDGMENT ELSON J. October 12, 2017 INTRODUCTION [1] This case pertains to one child, C.T. [C.T.], born January 7, 2015. At the time of the hearing in this matter, C.T. was slightly more than two years of age. C.T.’s mother is A.R. [A.R.]. His father is A.T. Since his birth, C.T. has lived with A.R.’s parents at their home in Estevan. A.R.’s parents, Mr. R. [Mr. R.] and Ms. R. [Ms. R.] have now been designated as persons of sufficient interest regarding C.T., pursuant to s. 23(1)(a) of The Child and Family Services Act, SS 1989-90, C-7.2 [CFSA]. In this proceeding, the Minister of Social Services [Ministry] seeks an order, pursuant to s. 37(1)(b) of the CFSA, that C.T. be committed to the care of A.R.’s parents for an indefinite period of time. [2] should also note that, when the Ministry first brought this application, A.R. and A.T. were represented by the same legal counsel. After the pre-trial conference, differences arose between the parents and it became necessary that they each have separate counsel. A.R. was represented by counsel from Legal Aid Saskatchewan while A.T. was represented by court appointed counsel. few days before trial, counsel for A.R. sought leave to withdraw on grounds unrelated to the client’s eligibility for legal aid services. Recognizing that A.R.’s communication with counsel was privileged, the court did not inquire further into the reasons for counsel’s request. granted counsel leave to withdraw following which denied A.R.’s request for an adjournment of the trial. As this application was filed in late 2015, was of the view that further delay was not in C.T.’s best interests. Accordingly, directed that the trial should proceed as scheduled. [3] should further note that, at the date and time the trial was scheduled to commence, A.R. was not in attendance at court. During brief adjournment, A.R. was contacted by telephone at her parents’ home at which time she advised that she would not attend the trial. Upon receiving this advice, directed the trial to proceed. That said, should further note that A.R. eventually changed her mind and attended the trial part way through. Although she did not cross-examine any witnesses, she asked to take the stand and give evidence. granted her request and the court received her testimony. She remained unrepresented throughout the trial. [4] The evidence in this case was presented through the testimony of six witnesses: the two child protection workers assigned to C.T.’s case, both of A.R.’s parents, and both of C.T.’s parents. The court also received affidavit evidence, admitted by consent, related to criminal record information. [5] will begin my discussion of the evidence with background review of C.T.’s parents. A.R. was about one month shy of her 32nd birthday at the time of trial. She was born and raised in Estevan, the oldest of three children. The court did not receive any additional evidence related to her level of education or occupational experience. That said, A.R. testified that she relocated to Regina in September 2016, and was residing there at the time of trial. She was employed part-time at retail store in Regina. [6] A.R. admits to an addiction to crack cocaine. Although she did not say how long she has suffered with her addiction, Mr. R. testified that A.R.’s problems developed when she was approximately 25 years old. [7] A.T. was 33 years of age at the time of trial. He was raised in Vancouver, British Columbia and relocated to Estevan in 2012. He has some training in heavy machinery and equipment. That said, his work in Estevan has primarily been devoted to oil rig operations. With the downturn in the price of oil in the last several years, A.T.’s employment history has become somewhat sporadic. At the time of trial, he had relatively consistent part-time employment, earning approximately $5,000.00 per month. [8] A.T. also admits to substance issues. Although he has used cocaine in the past, A.T. candidly admits that his bigger problem is alcohol use. This admission is confirmed by his criminal record which includes more than one drinking and driving offence. [9] The court heard that A.R. and A.T. began their relationship in 2012 or 2013. By the end of 2013, they were living together. The evidence, including the testimony of A.R.’s parents, discloses that the relationship was somewhat tumultuous, marked by considerable conflict and substance abuse. By the time C.T. was born, the couple had stopped living together. Although there appears to have been some effort to get back together in 2015, it is agreed that by the end of that year, the relationship was completely over. Both A.T. and A.R. testified that there is no prospect of reconciliation. [10] The Ministry’s involvement in this family began in September of 2013, more than year before C.T. was born. At that time, the Ministry’s focus was on C.T.’s older brother. N.T. was born to A.R. and A.T. on September 6, 2013. Shortly after N.T. was born, members of the parents’ community advised Ministry staff of child protection concerns related to the parents’ alleged use of illicit drugs and the possible impact this might have on the child’s safety. The Ministry assigned child protection worker, Jolene Millions, to the case. [11] Ms. Millions initiated discussions with A.R. and A.T. These discussions quickly led to the parents and the Ministry entering into Parental Services Agreement, pursuant to s. 14 of the CFSA. Under the terms of the agreement, A.R. and A.T. agreed: 1) to complete an addictions assessment; 2) to complete random drug screens; 3) to remain clean and sober; and 4) to cooperate with the Ministry in its interactions. In turn, as the family’s caseworker, Ms. Millions would check with the family through home visits and phone calls and would also check with addictions personnel to ensure appropriate follow-through. The identified concerns for the agreement were drug use and new baby in the home. In this respect, there was an admission that A.R. had used crack cocaine during her pregnancy. [12] Sadly, tragedy intervened before the Parental Services Agreement could be fully completed. On February 4, 2014, N.T. died. The evidence at trial revealed that N.T. had suffocated when he and his father fell asleep together on the living room couch. [13] Following N.T.’s death, the Ministry had no further contact with the family until late 2014 when it again heard from members of the parents’ community. Specifically, the Ministry learned that A.R. was pregnant again and that there were renewed concerns about drug use during her pregnancy. After receiving the necessary approval from her supervisors, Ms. Millions contacted A.R. directly. [14] Although the court did not receive detailed description of the Ministry’s interaction with the parents at this time, there is no dispute that A.R. agreed to be admitted to the Calder Centre, well-known inpatient detoxification and rehabilitation facility in Saskatoon. The report from the Calder Centre, admitted by consent, revealed that A.R. was admitted on December 9, 2014 and discharged 20 days later, on December 29, 2014. The report also disclosed that A.R. made significant progress in her treatment goals during her admission, which was originally expected to last 30 days. It was cut short so that she could deliver C.T. on January 7, 2015. [15] Immediately after C.T. was born, the Ministry entered into residential services agreements with both parents, pursuant to s. of the CFSA. Because A.R. and A.T. were no longer living together, and because of the specific care arrangement for C.T., each parent entered into separate agreements. The agreement with A.R. stipulated that C.T. would live with her only at her parents’ home. A.T.’s agreement permitted him visits with C.T. at Mr. and Ms. R.’s home. [16] At the same time as the parents entered into their respective s. agreements, they also agreed to separate agreement under s. 14 of the CFSA. This agreement specifically identified the drug use concerns as well as certain mental health concerns related to A.R. The agreement included requirements that A.R. and A.T. would: 1) provide random drug screens to the Ministry; and 2) connect with addictions counselling and mental health counselling. The agreement also stipulated that A.T. would attend detoxification and treatment. In turn, the Ministry, through Ms. Millions, agreed to schedule the drug screens, take steps to ensure that C.T. was safe and follow up with the family for scheduling visits. [17] For time, the s. arrangement appeared to be functioning relatively well. It began to unravel, however, in early February 2015, culminating in the agreement’s termination on March 2, 2015. [18] The first sign of problems in the agreement arose in early February. On February 6, 2015, Ms. Millions met with the family, including Mr. and Ms. R. The meeting did not go well. Aside from not interacting with C.T. in any way, A.R. became extremely volatile and argumentative. The court heard that, in language laden with obscenities, A.R. directed her anger at both Ms. Millions and her parents. [19] Although there was hope that the February incident was an aberration, it turned out not to be so. Ms. Millions testified that, during the month of February, A.R. would often call her and express the same kind of vitriol shown at the family meeting. A.R. also refused to cooperate appropriately with the family support worker that had been set up for her. [20] Things came to head sometime around March 1, 2015. According to Mr. R., A.R. had been increasingly disruptive in the home and refused to cooperate with the family support workers assigned to assist her with C.T. According to the undisputed testimony of Mr. R., A.R. had become so disruptive that her father was compelled to call the police and have her removed from the home. Shortly after this incident, on March 2, 2015, A.R. sent an email message to Ms. Millions advising that she was withdrawing from the s. agreement and wanted C.T. removed from her parents’ care. It was at this point that the Ministry terminated the s. agreement and formally apprehended C.T., who remained in his grandparents’ care. [21] digress from the narrative, at this point, simply to note that A.R. made certain allegations of abuse against her parents, which allegations formed the basis of her request to have C.T. removed from their care. Ms. Millions testified that the allegations were investigated and found to be unjustified. Ms. Millions went on to say that the Ministry had no concerns, of any kind, with the care provided by Mr. and Ms. R. [22] Following the apprehension, protection hearing was held before this Court, resulting in an order, dated April 10, 2015. Under the terms of the order, C.T. was found to be child in need of protection, pursuant to s. 11(b) of the CFSA, and he was placed in the custody of the Minister for period of three months. The order also included certain conditions for A.R. and A.T., related to addiction assessments, addiction treatment, drug screens and psychological assessments. subsequent three-month order was issued by this Court on July 17, 2015. [23] Ms. Millions remained involved in C.T.’s care until she left the employ of the Ministry in June 2015. She testified that, during the months immediately before her departure, there was little, if any, cooperation from A.R. and A.T. They did not cooperate in providing drug screens nor did they fully access the supports that the Ministry had put in place for both of them. [24] Following Ms. Millions’ departure from the Ministry, Melissa Hunt became C.T.’s child protection worker. From Ms. Hunt’s evidence, it is apparent that the parents’ lack of cooperation continued. Although both A.R. and A.T. had promised to comply with the conditions set out in the orders, little progress was shown. Both parents admitted to continued drug use with A.T. using cocaine while A.R. used crack cocaine. Despite these admissions, neither parent worked well with their respective addiction workers, nor did they express any willingness to seek out care at an inpatient treatment facility. By the time of the second three-month order, in July 2015, there had been no meaningful compliance with the conditions stipulated in the first order. [25] To compound problems, there were increasing cracks in the relationship between A.R. and A.T. relationship that had already been fragile for some time. Specifically, A.T. told Ms. Hunt that A.R. had been verbally abusive to him. In Ms. Hunt’s view, the domestic situation between the parents represented child protection concern that would seriously impact the prospect of family reunification. [26] In the meantime, the relationship between A.R. and her parents remained tense. A.R. continued to visit with C.T., but the visits were arranged and supervised by family support worker. According to Ms. Hunt, A.R. found it difficult to cooperate with the assigned worker and she remained unhappy about C.T. remaining with Mr. and Ms. R. On one occasion, in October 2015, A.R. told Ms. Hunt that, if she did not get different family support worker, she would cause such disturbance at her parents’ home that it would result in C.T. being removed from the home. By November of that year, the problem escalated further when the agency that supplied the family support worker terminated its assistance because of A.R.’s abusive behaviour and threats. [27] Aside from A.R.’s issues with the family support worker, the evidence at trial suggests that the frequency of visits, by both parents, were reasonably good during the summer of 2015, but had dropped off significantly in September. This prompted Ms. Hunt to prepare schedule that called for less visits, which was more in keeping with the visits that were actually taking place. She arranged meeting with A.R. to discuss the new schedule shortly after the visit in December. [28] This meeting also did not go well. In particular, A.R. became extremely upset when she learned that no visit had been set for Christmas day. She responded by threatening to kidnap Ms. Hunt’s children, just as she claimed the Ministry had done to her. Understandably, this was extremely distressing for Ms. Hunt. She contacted the local police service. As result, A.R. was charged with criminal harassment, contrary to s. 264 of the Criminal Code, RSC 1985, C-46. A.R. avoided incarceration pending trial by agreeing to number of conditions attached to her release, one of which was that she would have no contact with Ms. Hunt. [29] In the meantime, A.T. also had issues with police. According to the record presented before the court, he had eight Criminal Code convictions prior to C.T.’s birth. They included convictions for theft and possession of stolen property as well as failures to comply with undertakings and probation terms. Since C.T.’s birth, A.T.’s criminal activity has continued. He has since had convictions for impaired driving, driving while disqualified, operation of motor vehicle while pursued by police and, more recently, weapons offences. [30] Following the problems A.R. had created with the family support worker and Ms. Hunt, Mr. and Ms. R. agreed to supervise and schedule parental visits with C.T. Meanwhile, the Ministry initiated discussions with the maternal grandparents about possible designation as persons of sufficient interest pursuant to s. 23(1)(a) of the CFSA. Although initially reluctant to accept the designation, they eventually agreed. Accordingly, they were formally designated by an order of this Court, issued February 26, 2016. At the same time, the application for an indefinite person of sufficient interest order was made. [31] As earlier mentioned, both Mr. and Ms. R. testified at this trial. They are in their mid to late 50s and have each retired from their previous occupations. They have lived in Estevan since 1984, shortly before A.R. was born. In addition to A.R., Mr. and Ms. R. have two adult sons. A.R. is the oldest of their three adult children. To their knowledge, neither of A.R.’s brothers have any addiction issues. [32] Mr. and Ms. R. also testified to the parental visits they have been arranging since 2016, when the family support workers terminated assistance. Typically, the visits would be arranged as result of either A.R. or A.T. calling them and asking for visit with C.T., usually on the spur of the moment. Until A.R.’s relocation to Regina, each parent would usually have two visits per week, at various locations in Estevan. Since A.R.’s move to Regina, in September 2016, her visits have become considerably less. [33] A.T.’s present living circumstances were presented in his testimony. At the time of trial, he was living on his own in small apartment with month-to-month tenancy. A.T. expressed his intention that, if and when he is reunified with C.T., he will move into larger home that would better accommodate family. Beyond this comment, A.T. presented no evidence of family plan. [34] A.T. acknowledged his criminal record. He also acknowledged that he had been incarcerated earlier in 2017, having been sentenced to term of imprisonment for 110 days in February for the weapons offences earlier mentioned. [35] A.R. also acknowledged that her present living circumstances in Regina are not suitable for her to raise C.T. She is hopeful that, with continued progress in her personal life, she will soon be able to move into more suitable accommodations. [36] As for her past, A.R. candidly acknowledged her problems and difficulties, including the use of crack cocaine, volatile behaviour episodes and failure to comply with conditions. Despite this, she is optimistic about her future. A.R. testified that she has been subject to probation order, which was issued in the disposition of the criminal harassment charge. In A.R.’s view, this order has caused her to take steps to straighten out her life. She has arranged for drug screens and sought counselling. A.R. also believes that her relocation away from Estevan has allowed her to start new life, away from the bad influences. In answering one of my questions, A.R. said she has not arranged for inpatient treatment for her addiction. That said, she testified that she was not adverse to doing so. POSITIONS OF THE PARTIES [37] The Ministry’s position is clear. In order to serve C.T.’s best interests, some form of permanency in his life is required. At present, the most appropriate way in which this can be achieved is through an indefinite placement with C.T.’s maternal grandparents, as persons of sufficient interest. This would involve an order pursuant to s. 37(1)(b) of the CFSA. More particularly, the Ministry submits that neither A.R. nor A.T. have been able to place C.T.’s interests ahead of their own personal desires. Despite ample opportunity to change their behaviours, the Ministry contends that neither parent has demonstrated the kind of stability that would justify any form of reunification, now or in the foreseeable future. [38] A.T.’s position, as put forward by his counsel, was directed solely at the appropriateness of the type of order the court should make under s. 37. In A.T.’s view, this is not an appropriate case for the court to make an indefinite order for custody to be placed with the maternal grandparents as persons of sufficient interest. In its place, A.T. suggests a temporaryorder, of up to one year, under s. 37(7) of the CFSA. A.T. contends that,with this additional time, he will be able to demonstrate sufficient stability, both in his lifestyle and behaviour, that he would be able to resume parenting C.T. [39] A.R.’s position was presented primarily through her testimony. Despite the candid admissions in her testimony, A.R. contends that she is in position to change her life and lifestyle in much more positive way. She expects she will be in position to parent C.T. in the near future. Accordingly, A.R. also suggests that a temporary order would be appropriate. [40] The issues in this matter are relatively straightforward and can be identified with two questions: 1) Is C.T. in need of protection? and 2) If so, what is the appropriate order to serve C.T.’s best interests. LAW AND ANALYSIS [41] This application engages certain provisions of the CFSA, including ss. 3, 4, 11 and 37. Section describes the purpose of the CFSA, which is to promote the well-being of children in need of protection. Section 4, meanwhile, identifies the criteria court is obliged to take into account to determine the best interests of child. For the particular purpose of this application, the following criteria are noted: 1) the quality of the child’s relationships with people that are close to the child; 2) the child’s physical, mental and emotional level of development; 3) the child’s emotional, cultural, physical, psychological and spiritual needs; 4) the proposed home environment for the child; and 5) the care plans for the child of the person to whom custody of the child is to be entrusted. [42] Section11 defines the circumstances under which court is to find that child is in need of protection. As this definition is at the root of the CFSA’s purpose, it should be restated in full. The provision reads as follows: 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. [43] The determination under s. 11 is not measured against the standard of perfect parent. Rather, s. 11 requires determination as to whether the subject parents have met, or are able to meet, required threshold of parenting. The applicable test, which Megaw J. applied in L.L.-B. (Re), 2016 SKQB 237 (CanLII) [L.L.-B.], was described by Baynton J. in Saskatchewan (Minister of Social Services) S.E., 1992 CanLII 8071 (SK QB), [1992] WWR 289 (Sask QB) as follows, at 296: Counsel for the parents have quite properly pointed out that the issue is not whether the children might be better off, or happier, or obtain better upbringing in the care of other “parents” than with their natural parents. If that were the criterion for protection order, not many children would remain with their natural parents. The issue however really is whether the children concerned are receiving level of parenting care that is below the minimal standard that will be tolerated in our society. [44] In the present case, the Ministry’s position that C.T. remained child in need of protection was not seriously challenged by either A.R. or A.T. In the circumstances of this case, am more than satisfied that C.T. remains child in need of protection pursuant to s. 11(b) of the CFSA. With their present living circumstances, as well as the substance abuse and behavioural issues in both parents’ lives, find that neither A.R. nor A.T. are able and willing to provide the minimum level of parenting required for C.T.’s needs. am also satisfied that this failure is likely to cause C.T. physical and/or emotional harm. [45] The next question pertains to the appropriate order to be made once child is found to be in need of protection under s. 11. Section 37 sets out the tools available for the court to promote the well-being of child found to be in need of protection under s. 11. With emphasis on the specific provision raised by the Ministry, s. 37 reads as follows 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). (5) In making an order pursuant to subsection (1) or (3), the court may: (a) impose any terms and conditions that the court considers appropriate; and (b) include in the order provision respecting access to the child. (6) If the court, in making an order pursuant to clause (1)(a) or (b), orders supervision of the child by the minister as term or condition of the order, the period of supervision shall not exceed one year. (7) In making an order pursuant to clause (1)(b), the court may direct that the order shall terminate after the expiry of period, not exceeding one year, specified in the order. (8) Any order made pursuant to clause (1)(a) or (b) or section 16 that is inconsistent with an existing custody order of superior court shall be considered an interim order that is subject to further order of superior court. [Emphasis Added] [46] The approach to be followed in cases of this kind was described by McIntyre J. in Saskatchewan (Minister of Social Services) E.K.S. (1996), 1996 CanLII 7131 (SK QB), 146 Sask 46 (WL) (Sask QB) [E.K.S.]. While the E.K.S. framework is now more than 20 years old, the approach described therein has stood the test of time and remains well-recognized. It was expressly confirmed by the Saskatchewan Court of Appeal in S.F. (Re), 2009 SKCA 121 (CanLII), 343 Sask 112 [S.F.]. More recently, the analysis and approach was followed by Goebel J. in Z.A.P. (Re) 2016 SKQB 47 (CanLII) as well as by Megaw J. in two judgments, L.L.-B. and S.U. (Re), 2017 SKQB 37 (CanLII). [47] The E.K.S. framework is laid out in paras. 44-48 of the judgment, which paragraphs were later repeated, with approval, in S.F. The relevant passage from E.K.S. reads as follows: 44 In determining whether any of the options in ss. 37(1) is appropriate number of principals can be taken from various reported decisions and the statute itself, keeping in mind that the decision must be reached in the context of determining what is in the best interests of the children. 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 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. G. (R.) (1990), 1990 CanLII 7428 (SK QB), 88 Sask. R. 262 (Q.B.) 3. Any determination made must be in the context of the objective of the Act, set out in s. 3. C. (M.A.) v. Saskatchewan (Minister of Social Services) (1993), 1993 CanLII 9025 (SK QB), 46 R.F.L. (3d) 174 (Sask. 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 ss. 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. J. (A.) (1987), 1987 CanLII 4660 (SK CA), 58 Sask. R. 246 (C.A.) Saskatchewan (Minister of Social Services) v. L. (M.) (1988), 1988 CanLII 4925 (SK QB), 71 Sask. R. 110 (Q.B.) C. (M.A.) v. Saskatchewan (Minister of Social Services), supra Saskatchewan (Minister of Social Services) v. G. (R.), supra 45 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 ss. 37(1) are premised upon reasonable prospect of change, within reasonable length of time and reasonable use of resources if needed. 46 In making an assessment as to whether an order under ss. 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. J. (A.), supra, 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... 47 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 (City) v. Redwood (1980), 19 R.F.L. (2d) 232 at 234 (Man. C.A.): ... 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." 48 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 ss. 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. [48] In the present case, it must be remembered that the Ministry is not seeking an order that permanently commits C.T. to the care of the Minister, as provided in s. 37(2) of the CFSA. Rather, the E.K.S. framework describes s. 37(1)(b) order as one of the options that “are premised upon reasonable prospect of change…”. That said, of the three options under s. 37(1), an indefinite persons of sufficient interest order is rather more long-term and is the closest option to permanent order. In other words, while the proposed order would not be a temporary order, it would not be as potentially immutable as a s. 37(2) order. [49] The essential difference between the parties is simply whether the appropriate order should be temporary or indefinite. Considering the various factors identified in the E.K.S. framework, this decision largely turns on whether there is reasonable prospect of change that will properly serve C.T.’s best interests and, if so, how much time and resources should be allowed for that change. [50] These questions can only be answered on an assessment of the evidence presented at trial. Based on that evidence, find that the prospect for change is, to this point, primarily limited to statements of good intention from both A.R. and A.T. While these statements may well be real, and should not be downplayed, they are, by themselves, insufficient. [51] Moreover, the statements of good intentions have been made in the wake of multiple lost opportunities. These opportunities were presented in the form of: 1) s. agreement; 2) successive temporary orders with associated conditions; 3) assistance of paid support workers; and 4) Ministry assistance in arranging drug screens and related supports. These were opportunities for the parents to demonstrate a reasonable prospect for change – something more palpable and more meaningful than any statements of good intentions could ever be. Instead, these opportunities were squandered by both parents. In the case of A.R., certain of these opportunities were not simply squandered. Rather, they were abusively rejected, sometimes in spectacular fashion. [52] One item that did not include on the above list is the role of Mr. and Ms. R. Their efforts to this point also reflect an opportunity that the parents, particularly A.R., did not take. Having seen both of A.R.’s parents on the witness stand, have no doubt that their decision to provide home for C.T. was borne of love, not just for their grandson but for A.R., as well. They did their best to maintain C.T.’s connection with the family, all with the hope that A.R. would take their assistance as an opportunity to make real changes in her life and resume her responsibility as C.T.’s parent. [53] In the face of the history of lack of cooperation and non-compliance with conditions, A.R. and A.T.’s respective statements of good intentions are not very compelling. am not persuaded that, at present, either parent is able to put C.T.’s best interests and welfare ahead of their own personal desires and inclinations. It necessarily follows that an indefinite order under s. 37(1)(b), as requested by the Ministry, should issue. [54] Before concluding this judgment, think it appropriate to reiterate an earlier observation. While an indefinite order is designed to provide some permanency in the arrangements for child, it is not unchangeable. Where parents, with the necessary self-reflection and insight, make meaningful and positive changes that speak well of their ability to parent, such orders can be changed. Depending on the extent of change, indefinite orders can even be terminated. [55] That said, such change is not always easy, and the necessary insight to make the change is often difficult to acquire. More importantly, where change is made and insight is acquired, it is rarely, if ever, done alone. hope that both A.R. and A.T. will take the time to reflect on the events that have led to this state of affairs. further hope that, after such reflection, they will each take the necessary steps and ask for the necessary help to move forward positively if not for their sake, for C.T.’s sake. CONCLUSION [56] In the result, there will be an order placing C.T. inthe custody of the persons of sufficient interest, Mr. and Ms. R., on an indefinite basis.
The Minister of Social Services applied for an order committing a two-year-old child to the care of his maternal grandparents for an indefinite period of time. The grandparents were previously designated as persons of sufficient interest. The child had lived with them since birth. The mother and father both suffered from addictions and had stopped living together by the time the child was born. The father had multiple criminal convictions, including drinking and driving offences and weapons offences. The mother’s relationship with her parents, family support worker and child protection worker during the course of the child’s life had been marked by volatility, argumentative behaviour and threats, one of which resulted in criminal harassment charges. The child was the subject of a protection order, which imposed conditions upon his parents. Neither meaningfully complied with the conditions set out in the protection order. Both parents testified at trial that their present circumstances were not suitable to raise a child. Each expressed intention to take steps necessary to provide a home for the child. Each parent asserted that a temporary order was appropriate. | HELD: The child was placed in the custody of his grandparents on an indefinite basis, which, while not temporary, was not as potentially immutable as a permanent order. That the child was in need of protection was not seriously challenged by either his mother or father. The prospect for change at the time of trial was limited to statements of good intentions. On their own, such statements were insufficient. There were opportunities for the parents to demonstrate a reasonable prospect for change. These opportunities were squandered and, in some cases abusively rejected by the mother.