G.L. v. Children's Aid Society of Cape Breton-Victoria

G.L. v. Children's Aid Society of Cape Breton-Victoria Court Supreme Court Date 2004-07-19 Citation 2004 NSSF 69 Docket SFSNC 13062 Judge/Registrar/Adjudicator Wilson, Darryl W. (Honourable Justice) (NSSF) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: G.L. v. Children’s Aid Society of Cape Breton-Victoria, 2004 NSSF 69 Date: 20040719 Docket: SFSNC 13062 Registry: Sydney Between: G.L. Plaintiff v. Children’s Aid Society of Cape Breton-Victoria Defendant Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on May 30, 2008. Restriction on publication: SECTION 94(1) PROVIDES: 94(1) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or a relative of the child. Judge: The Honourable Justice Darryl W. Wilson Heard: July 19, 2004, in Sydney, Nova Scotia Written Decision: July 21, 2004 Counsel: Alan Stanwick, for the G.L. Robert Crosby. Q.C., for the Children’s Aid Society of Cape Breton-Victoria By the Court: [1] G.L. has applied for leave to terminate an Order of Permanent Care and Custody dated April 15, 2003. The order was appealed to the Nova Scotia Court of Appeal which dismissed the appeal without costs on October 21, 2003. [2] The application for leave is dated November 28, 2003 and was scheduled for hearing on December 11, 2003. The hearing was adjourned to allow the applicant time to appeal the decision of Nova Scotia Legal Aid in refusing her legal counsel. The next court appearance on the application was May 2004. Justice MacLellan declined to hear the application at the request of G.L. on the basis that Justice MacLellan made the original Permanent Care and Custody Order. [3] The child M.O. has been in the temporary care and custody of the agency since October 26, 2001. In December 2003 prospective adoptive parents to the child gave notice of a proposed adoption. [4] The hearing of the application came before this court in June 2004. The agency had indicated an intention to argue the court lacked jurisdiction to hear the application because there was no Leave granted to terminate the Permanent Care and Custody Order and the filing of a notice of proposed adoption was a bar to hearing the application to terminate permanent care and custody. The agency also opposed the application on the basis that sufficient progress had not been made by the applicant to justify granting an application for leave to terminate permanent care and custody. In June the applicant was only prepared to deal with the preliminary question of the courts’ jurisdiction and so the hearing was further adjourned to allow the applicant time to file additional evidence in support of her application for leave to terminate the Permanent Care and Custody Order. [5] In Children’s Aid Society of Cape Breton v. L.M. and B.M. (1999), 177 N.S.R. (2nd) 25, Flinn, J.A. at pg. 41 stated: [68] There is, in my view, a sound basis for the requirement to obtain the leave of the court before making an application to terminate a permanent care order as that requirement is set out in s. 48 of the Act; in particular s. 48(6)(c)(iii) in this case. The requirement for leave is a matter of substance. It is not merely a formality. In fact, the Family Court Rules require a separate and distinct application for leave. [69] Rule 21.14(3) of the Family Court Rules provides as follows: “21.14(3) Where a party is required to obtain leave of the court under section 48(6), prior to making an application to terminate an order for permanent care and custody, the party shall first file an application for leave, supported by affidavit, and, if leave is granted, an application in Form 21.14B shall be filed and served as directed by the court”. [70] It is precisely because the interests of the child are paramount that the leave provisions must be met. As to the importance of, and requirement for, leave to make an application to terminate a permanent care order, Judge Levy of the Family Court of Nova Scotia said the following in the case of D.L.G. v. Family & Children Services of Kings County et al. (1994), 36 N.S..R. (2nd) 131; 388 A.P.R. 131 (F.C.), at p. 133 “It is evident from the entirety of s. 48 that the Legislature intended that the Agency, on obtaining permanent care and custody would have a six month ‘window’ of time, free from court proceedings, to work with and possibly place children. That ‘window’ is not to be interfered with unless a judge grants leave.” “An application to terminate a care and custody order of necessity interjects delay and uncertainty into an Agency’s plans for children. It may well be that this delay and uncertainty would compromise the best interests of the children. So too might the possibility of further assessments, (48(8)(c)), and the distraction of the Agency workers from the task of settling the children. If a parent could keep the Agency and its plans on a permanent hold simply to continuously applying for termination, much of, if not the entire value of a permanent care and custody order would be lost. Certainly any undue delay in settling children or commencing the necessary ‘healing’ process can prejudice a child’s healthy development.” “Wisely, the Act seeks not to altogether forbid or preclude an application within the six month period. There may be any number of circumstances that would justify proceeding with such an application to terminate. Imposing the necessity of, (and granting the opportunity to), obtain leave is a mechanism to secure balance and flexibility for appropriate circumstances.” [71] As to the burden on the applicant, Judge Levy said at p. 134: “...the applicant for leave must, in my opinion, present ostensibly credible and weighty evidence that those deficiencies in the parent or her circumstances that led to the care and custody order bing granted have improved, or are bing convincingly and meaningfully addressed with a realistic expectation of success in the reasonably foreseeable future.” [72] And further: “The applicant for leave does not have to prove that the children should be returned forthwith. What must be established however, is that there is sufficient evidence to warrant holding a hearing and of having any agency plans, put on hold; some reasonable prospect of success. The parent’s right and her evidence are to be weighed against whatever negative consequences there might be from holding a hearing, and the decision, as with all decisions under the Act, is to be made in the best interest of the children.” [73] Generally speaking, I endorse those comments of Judge Levy. [6] The application for leave to terminate the permanent care order was made before the filing of the notice of proposed adoption thus distinguishing the present case from Children's Aid Society of Cape Breton v. L.M. and B.M., (supra). The hearing of the application for leave has taken place eight months after the filing of the application. No explanation was given for the lengthy delay in hearing this matter. Neither party can be ascribed fault for the delay. In weighing the relevant factors in reaching its final decision the court was uncertain whether to consider the applicant’s circumstances at the time or shortly after the application for leave was filed or her circumstances at the present time. In the final analysis I find the application should be dismissed under either set of circumstances. [7] In R.B. v. Children's Aid Society of Halifax, et al, (2003), 214 N.S.R. (2d) 335(ca), Chipman, J.A. at para 35 states: [48] Bateman, J.A., points out that the test to be applied on a leave application is not set out in the Act and has received little judicial consideration. Generally such applications are made by a parent or person from whom the child has been apprehended, and who now seeks to demonstrate a change in circumstances. In such a context, the applicant must adduce sufficient evidence to warrant a hearing and thereby put the agency's plans on hold. [8] Justice Chipman was referring to the decision of Bateman, J.A. in I.C. et al v. Children's Aid Society of Shelburne County et al 196, N.S.R. (2d) (70). The R.B, supra and the I.C, supra both had to do with leave applications by persons who were not a party and without prior involvement in the proceedings. The court determined that the test for permitting standing to one who is not a party and without prior involvement in proceedings was more stringent. In these cases the court determined that a person must show compelling circumstances justifying status and leave. [9] In the present case the applicant is the mother of the child and was a party to the original proceedings. Therefore the burden on her is to adduce sufficient evidence to warrant a hearing and put the agency's plans on hold. However, the test approved by the Court of Appeal in Children's Aid Society of Cape Breton v. L.M. and B.M, (supra) also included the following: The burden is on the applicant to "present ostensibly credible and weighty evidence that those deficiencies in the parent or her circumstances that lead to the care and custody order being granted have improved, or are being convincingly and meaningfully addressed with a realistic expectation of success in a reasonably foreseeable future." [10] The affidavit of G.L. at the time she filed her leave application in November 2003 indicated that she could show the court a substantial change in her circumstances to have the court feel comfortable in placing the child into her care and custody. It further stated that she loved her daughter and that she made many changes in her life in the past year and specifically the last six months including being able to focus on her child and to be the best parent she could be. [11] Doctor M.A. Mian, a psychiatrist practising in Sydney, Nova Scotia filed an affidavit dated July 5, 2004 that the applicant was experiencing a great deal of stress in October 2003 due to custody issues regarding her daughter and financial stressors and he referred her to the day center program at the Cape Breton Regional Hospital to address problems of low energy, being scared and feelings of loneliness as well as the stress she was experiencing. Since that time, in his opinion, she has managed to function well by volunteering, attending an adult learning centre, completing a Christopher Leadership course, applying and being accepted into a two year unit services program at [name of campus changed] beginning in the fall of 2004 and seeking employment for the summer. He does not have any concerns regarding G.L.'s mental health and in his opinion she is not suffering from any mental infirmity that would negatively impact upon her ability to provide appropriate care for her child. [12] Also filing an affidavit dated July 5, 2004 is Lydia MacIsaac who is a registered nurse providing supportive counselling in the day centre program at the Cape Breton Regional Hospital. . Her affidavit indicates that G.L. was readmitted into the program in October 2003 following a referral from Dr. Mian and she agrees with the comments of Dr. Mian regarding G.L.'s current functioning. [13] G.L. testified viva voce that her life has changed substantially in the past year as a result of her volunteering, completing school, and meeting new friends. She is more outgoing. She acknowledges having problems in the past dealing with stress which had an impact on her ability to parent her daughter. The various courses she completed and her volunteering efforts have enabled her to learn to live with stress. This makes her a better mother because she can raise her daughter and deal with the various stressors that may come into her life. She's been on her current medication since the fall of 2002. It took a while to find the right medication which was a concern of the court at the permanent care and custody hearing. She sees Dr. Mian every two or three months when she needs a prescription refilled and he asks her how she is doing. She sees Lydia MacIsaac once a month for supportive counselling while the court proceedings are ongoing. Her last appointment with Lydia MacIsaac will be in August. She does not need to continue counselling with Ms. MacIssac and will see Dr. Mian only for her prescription needs. [14] The agency has not had any contact with G.L. since late November or early December when access visits were terminated, subsequent to the release of the Court of Appeal decision. Ms. MacLean, supervisor with the agency stated G.L. was still attempting to disrupt the child's placement in October 2003 after the Permanent Care and Custody Order had been granted but before the Appeal Court decision had been issued Ms. MacLean said that from her own discussions with G.L. and as a result of a family referral she had concerns about G.L.'s mental health and asked her to go to the Crisis Unit of the Cape Breton Regional Hospital. The agency provided funds for a taxi fare to the hospital. Ms. MacLean indicated that as a result of working with the applicant over a two year period the Agency noted short periods of improvement in her functioning. When the agency attempted to return the child to her care or after overnight access visit there was regression in G.L.'s behavior which affected her ability to parent. The agency is concerned that G.L. is not able to provide long term stable and risk free care for M.O. despite the improved personal functioning noted by Dr. Mian. [15] In order to determine that sufficient evidence has been adduced to address the deficiencies in the parent or her circumstance since the Permanent Care and Custody Order was issued it is necessary to examine the findings of the court. Justice MacLellan relied upon the expert opinion evidence of Dr. Mian, psychiatrist and Dr. Landry psychologist. [16] In the opinion of Dr. Mian, G.L. suffered from borderline personality and post traumatic stress disorder which could not be cured but with appropriate medication and support was manageable. [17] At the hearing in April 2003 Dr. Mian filed a report which is quoted in part at page 16 and 17 of Justice MacLellan's decision: 6.) She still has difficulty in many areas such as: (1) areas of difficulty experienced in relation to self and others within and outside the family: self-confidence: appropriate emotional experience: realistic goals for self and other: (2) she still has difficulty coping with stressful life events and mood reactivity: (3) daily living skills involving role, cognitive functioning, independence, structuring time, and life satisfaction: (4) problems re self-realization, self-actualization, and self-esteem: (5) more autonomous and progressive mode of dealing with life. We have seen her while she was in the supportive environment of the Day Centre. It is very difficult to state her capability for care for a young child. I think The Children’s Aid Society will be the best judge of that. 7.) I don’t think she is a threat to herself or anybody else. 8.) As stated above, she is functioning quite well within the setting of the Day Centre, which is a supportive environment. However, her issues extend beyond the direct resolution of psychopathology and echoes of the past experiences intrude upon and distort her perception, relationships, and behaviour. Her current transactional pattern is being influenced by internalized blocks, hypersensitivities, and distortions accumulated over a lifetime. Medication is helpful in the presence of neurovegetative symptoms and transitional stress in the face of compromised adaptive functioning. Her level of functioning can be helped in regards to the stress level and neurovegative symptoms, but medication will not alter her personality difficulties. 9.) I met with Ms. E. and G.L. on September 25th and again on November 13th.. At the September meeting, the main concerns were about her nightmares and night terrors and he recall of those events. In November, she [18] Justice MacLellan also accepted the evidence of Dr. Landry who prepared a psychological assessment and parental capacity assessment. His recommendations are stated at page 8 and 9 of the court’s decision. 1) Given the number of mental health concerns raised and questions about the nature of the particular disorders, particularly possible Bipolar Disorder, Type 2, G.L. should be assessed by a psychiatrist to review her condition and make recommendations about possible interventions; 2) It is recommended that M.O. remain in the temporary care of the Children’s Aid Society of Cape Breton-Victoria while the assessment is taking place. In addition, this will provide G.L. an opportunity to adjust to living in Cape Breton and establish a place in the community. As soon as is possible, the access visits should take place in G.L.’s home to begin to familiarize M.O. to her home environment. Ideally, the visits could also increase in frequency or length so that G.L. and M.O. can spend more time together; 3) G.L. may benefit from psychotherapy to deal with a variety of issues including anxiety and depression and to address issues related to her maladaptive interpersonal relationships, particularly anger and hostility; 4) G.L. may also benefit from consultation with a psychologist who is trained to work with clients who are experiencing chronic pain. As noted above, the psychological aspects of chronic pain can have a debilitating effect on one’s sense of well-being and contribute to feelings of anxiety and depression.” [19] Dr. Mian agreed with Dr. Landry’s treatment plan. The court concluded that given G.L.’s personality profile as indicated by Dr. Landry and the psychological and the psychiatric assessment of Dr. Mian that G.L. would have to work very hard to maintain an appropriate level of mental health. The court also determined that G.L. has not been able to be healthy on a consistent basis and given the time needed to monitor her own health, she would have little time or energy left for the role of a full time parent. CONCLUSION: [20] Since the Permanent Care and Custody Order was issued, G.L. has managed to function well and is progressing in therapy very well. In the opinion of Dr. Mian she currently is not suffering from any mental infirmity that would negatively impact upon her ability to provide appropriate care for her daughter. [21] G.L. has spent the time since the Permanent Care Order was issued volunteering with [name of organization changed], attending an adult learning centre, completing a Christopher Leadership course, applying and being accepted into a program at the community college. She continues to take her prescription medication on a regular basis. [22] G.L. is to be commended for the progress and gain she has made in her personal functioning. [23] The findings of the court at the permanent care hearing indicated extensive personality and psychological deficiencies which negatively impacted on G.L.’s ability to care for her child. Dr. Landry recommended psychotherapy to deal not only with mental health issues but G.L.’s maladaptive interpersonal relationships including anger and hostility and consultations with a psychologist regarding the psychological aspects of chronic pain. Dr. Mian agreed with Dr. Landry’s recommendations. Dr.Mian also noted at that hearing that G.L. suffered from psychological difficulties including borderline personality disorder and post traumatic stress disorders which could not be cured but managed. Dr. Mian did not give an opinion on G.L.’s capacity or her ability to parent, only that currently she did not suffer from any mental infirmity (such as depression or anxiety) which would negatively impact on her ability to care for her child. [24] G.L. did not adduce any evidence regarding treatment for the psychological difficulties reported by Dr. Landry. G.L. indicated she was seeing Dr. Mian every two or three months regarding her prescription needs and Ms. MacIsaac regarding supportive counselling throughout the court process which will end in August. [25] I find that G.L. has not presented sufficient evidence to indicate that the deficiencies in her circumstances and her parenting abilities that lead to the care and custody order being granted have improved or are being convincingly and meaningfully address with a realistic expectation of success in the reasonably foreseeable future. [26] I have considered the best interest of the child as required by the statute. The child has been in the care of the agency for almost three years. She will soon be five years of age. It is important that there be a permanent plan put in place for her well being and development. At the same time the negative consequences that might flow from holding a hearing are to be weighed against G.L.’s evidence if there is some reasonable prospect of success. I find that the applicant, G.L. has not brought forward sufficient evidence which would indicate some reasonable prospect of success if a hearing was held. [27] Accordingly the application for leave is dismissed without costs to either party. ____________________________ Wilson, J. Sydney, Nova Scotia July, 2004