Mi'kmawFamily and Children's Services of Nova Scotia v. L.C.

Mi'kmawFamily and Children's Services of Nova Scotia v. L.C. Court Supreme Court Date 2009-10-14 Citation 2009 NSSC 304 Docket 065543 Judge/Registrar/Adjudicator Forgeron, Theresa M. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF NOVA SCOTIA Citation: Mi’kmaw Family and Children’s Services of Nova Scotia v. L.C., 2009 NSSC 304 Date: 20091014 Docket: 065543 Registry: Sydney Between: Mi’kmaw Family and Children’s Services of Nova Scotia Applicant v. L. C., A. C. and B. K. Respondents Editorial Notice Identifying information has been removed from this electronic version of the judgment. Judge: The Honourable Justice Theresa Forgeron. Heard: October 9, 2009 Oral Decision: October 14, 2009 Written Decision: October 22, 2009 Counsel: LeeAnne MacLeod-Archer, for the Applicant Mark Gouthro, for the Respondent, L. C. A.C. - Not Appearing B.K. - Not Appearing Restriction on publication: S. 94(1) of the Children and Family Services Act applies and may require editing of this Judgment or its heading before publication. S. 94(1) provides: 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. By the Court: [1] I. Introduction. [2] L. C. has three children: A., who is 7 years old, Ai., who is 5 years old, and M. who is 3 years old. They were removed from Ms. C.’s care on July 23, 2009 by Mi’kmaw Family and Children’s Services of Nova Scotia because of safety concerns surrounding the sobriety of Ms. C. and her lack of supervision of the children. The children are currently living with Ms. C, subject to the supervision of the Agency by virtue of the last court order. [3] II. Issue [4] The sole issue before me is whether the children, A., Ai., and M. are children in need of protective services? [5] III. Analysis [6] Position of the Agency [7] The Agency states that the children are in need of protective services. They rely upon Ms. C.’s past history of addiction, and Ms. C.’s current inability to understand that her consumption of alcohol or drugs exposes the children to harm. [8] Position of Ms. C. [9] Ms. C. notes that there are no current protection concerns facing her children. She states that she was not intoxicated on July 23, 2009. Ms. C. explained that she was exhausted because she had been up the previous night with a sick child. She left work early on the 23rd, returned home, and took prescribed medication for an anxiety attack. This medication, coupled with her exhaustion, lead her to enter into a sound sleep. Further, the empty liquor bottles found were those being collected by her son for a cash return at the recycling depot. [10] Ms. C. states that she does not experience any problems with alcohol or drug use. In the past, she successfully undertook the counselling and therapy demanded by the Agency. She states that she was sober for two years and that she has no current issues with alcohol or drugs. In addition, Ms. C. states that she is pregnant and thus is unable to consume alcohol or illegal drugs in any event. She also notes that the preliminary tests conducted by the Agency showed negative for all but prescribed medication. [11] Ms. C. states that she is a full‑time student at UCB and that she is employed during the summer break with *. She is able to hold down a job and do well at university because she is clean and sober. [12] Ms. C. expressed concern about the Agency's involvement and feels that she is a target given her past history. Ms. C. wants to be left alone by the Agency to raise her children in peace. [13] Law [14] Section 40 of the Children and Family Services Act gives the court the jurisdiction to make one of two findings: a) that the children are in need of protective services or, b) that the children are not in need of protective services. If the children are not in need of protective services, the proceeding will be dismissed. [15] Section 40(4) of the Act states that the operative date for the finding is the date of the protection hearing itself. Thus I must determine if the children in this case are children in need of protective services at the present time, and not as of July 23, 2009. This directive, however, does not mean that past history is not relevant in the determination finding. To the contrary, past history may be used in assessing present circumstances. An examination of past circumstances helps the court determine the probability of the event reoccurring. The court is concerned with probabilities, not possibilities. Therefore, where past history aids in the determination of future probabilities it is admissible, germane and relevant. In Nova Scotia (Minister of Community Services) v. Z. (S.) 1999 CarswellNS 396 (C.A.) Chipman, J.A. confirmed the relevance of past history at para. 13: 13 I am unable to conclude that the trial judge placed undue emphasis on the appellant's past parenting. It was, of course, the primary evidence on which he would be entitled to rely in judging the appellant's ability to parent B.Z. In Children's Aid Society of Winnipeg (City) v. F.1. (1978), 1 R.F.L. (2d) 46 (Man. Prov. Ct.) at p. 51, Carr, Prov. J., (as he then was), said at p. 51: ... In deciding whether a child's environment is injurious to himself, whether the parents are competent, whether a child's physical or mental health is endangered, surely evidence of past experience is invaluable to the court in assessing the present situation. But for the admissibility of this type of evidence children still in the custody of chronic child abusers may be beyond the protection of the court ... [16] In reaching my conclusion on the protection finding, I have also reviewed the preamble to the legislation and its purpose as outlined in s. 2 of the Act. I have balanced the need to protect children from harm, to promote the integrity of the family, and to assure the bests interests of A., Ai., and M.. In considering their best interests, I have paid special recognition to s. 3(2) (a), (b), (c), (d), (e), (f), (g), (k), and (l) of the Act. [17] The Agency relies upon ss. 22 (2)(b) and (ja) of the legislation in support of its position. I find that the Agency has not met its burden under s. 22(2)(ja), and thus I will consider the Agency's position only in the context of s. 22(2)(b). [18] Section 22 (2)(b) of the Act states that a child is in need of protective services where there is a substantial risk that the child will suffer physical harm as a result of the parent's failure to supervise and protect the child adequately. "Substantial risk" is defined in s. 22(1) of the Act to mean a real chance of danger apparent on the evidence. The court is not required to wait until physical injuries actually occur before it is permitted to act. Rather, in the absence of physical injuries, the court must find a real chance of danger to the children before a finding can be entered: M. (K.L.) v. Nova Scotia (Minister of Community Services) 2007 CarswellNS 438 (C.A.). [19] The burden throughout these proceedings is on the Agency. In F. H. v. McDougall, 2008 SCC 53, Rothstein, J. confirmed that there is only one standard of proof in civil cases ‑ proof on a balance of probabilities. He further held that there are no degrees of probability within the civil standard. In every civil case, a judge should take into account the seriousness of the allegations or consequences, or inherent improbabilities; however, these considerations do not alter the standard of proof. In all cases, the court must scrutinize the evidence when deciding whether it is more likely than not that an alleged event occurred. The evidence must always be clear, convincing, and cogent to satisfy the balance of probabilities test. Testimony must not be considered in isolation, but rather examined based upon the totality of the circumstances. [20] Credibility plays a significant role when assessing the burden of proof. The court considers a number of factors when making credibility determinations. These factors were reviewed in Baker‑Warren v. Denault 2009 NSSC 59, at paras 18 to 20, and have been considered by me in this decision. [21] In considering the arguments advanced by the parties, I have applied the civil burden of proof to the Agency. The Agency must prove, on the balance of probabilities, that A., Ai. and M. are children in need of protective services today. I have reviewed the totality of the evidence with reference to the internal consistencies and inconsistencies, and in reference to the position of each of the parties. I have looked for clear, convincing, and cogent evidence. I have made specific credibility findings based upon the evidence and in light of the civil burden of proof. [22] Findings of the Court [23] I have determined that the Agency has met its burden. The Agency has proven, and I find, that the children, A., Ai., and M. are children in need of protective services, at the present time, pursuant to s. 22 (2)(b) of the Act for the reasons reviewed in the following paragraphs. [24] Ms. C. suffers from addiction issues. In the past, Ms. C. attended rehab and undertook counselling. She was sober for two years. Ms. C. began to flirt with alcohol use in 2009 and this, not surprisingly, impacted negatively upon her ability to supervise and protect her children. [25] I reject Ms. C.’s description of the events which occurred on July 23, 2009. Ms. C. is not credible. I do not accept that the consumption of 1 mg of ativan, even if Ms. C. was exhausted, would have caused Ms. C. to reek of alcohol, slur her speech, be unsteady on her feet, or be incapable of being roused from a nap. [26] Dr. Haleen's evidence did not support Ms. C.’s position. Dr. Haleen stated that Ms. C. had taken ativan in the past, and had not lodged any complaints about negative side effects. Dr. Haleen also noted that the side effects of ativan usually remain consistent with individual use, or in the alternative, a patient becomes tolerant which would lead to a reduction, and not an increase, it his/her experience of adverse side effects. [27] I prefer the evidence of the other witnesses who were present on July 23, 2009 to the evidence of Ms. C.. Mr. Munden was a police cadet who was assigned to Constable MacIsaac on July 23, 2009. Neither Mr. Munden, nor Constable MacIsaac had a motive to lie. Their evidence withstood the scrutiny of cross examination. I accept that Ms. C. told Mr. Munden that she had been out late the night previous and had been drinking. I accept that Ms. C. told Mr. Munden that she was trying to sleep off the alcohol effects. I accept the evidence of Mr. Munden and Constable MacIsaac as it related to the extreme measures required to rouse Ms. C.. I accept Constable MacIsaac's description of the alcohol symptoms presented by Ms. C.: slurred speech, alcohol odour, staggering and unsteady movements. [28] I accept the evidence of Ms. Hiscock and Mr. Campbell and their description of Ms. C.’s condition, including: glossy eyes, slurred speech, and stumbling. I find that Ms. C. was attempting to mask her condition from the Agency by chain smoking. I find that neither Ms. Hiscock, nor Mr.Campbell are "out to get" Ms. C., and neither individual has targeted Ms. C. as she alleges. Ms. Hiscock and Mr. Campbell's evidence also withstood the rigors of cross examination. [29] The evidence establishes on a balance of probabilities that Ms. C. was highly intoxicated on July 23, 2009. A real chance of danger was thereby created which placed the children at risk of suffering physical injuries as a result of Ms. C.’s inability to supervise and protect them adequately. M. was in a diaper, unsupervised. He opened the door to strangers. Ms. C. was non‑responsive; she was in a drunken stupor in bed. Ms. C. was not easily awaken. Constable MacIsaac heard M. crying, yet even these cries did not rouse Ms. C.. A three year old, a five year old, and a seven year old, are not mature enough, are not responsible enough, and are not capable of self‑supervising in a safe fashion. [30] The fact that Ms. C. failed to accept responsibility for her actions on July 23rd is disturbing when coupled with Ms. C.’s past history of substance abuse. This lack of admission confirms that Ms. C. fails to appreciate the dangers inherent in any alcohol use by her. Ms. C. is addicted to alcohol. She cannot toy with its use. When Ms. C. used alcohol, she once again abused it and placed the children at a significant risk of harm. Ms. C.’s failure to appreciate these facts, means that the children will continue to be at risk unless and until Ms. C. obtains the treatment that she requires, and unless and until Ms. C. comes to a healthy understanding of the true nature of her addiction and its impact on parenting. The fact that Ms. C. was not abusing when Agency tests were administered during the currency of the interim order, does not alleviate these concerns. [31] IV. Conclusion [32] I find that the Agency has met the burden upon it. The children, A., Ai. and M. are children in need of protective services pursuant to s. 22 (2)(b) of the legislation. The terms and conditions of the current supervision order will remain in effect pending disposition. Ms. MacLeod‑Archer is to draft the order and dates will be obtained for the pretrial and disposition hearing. Thank‑you counsel. Forgeron, J.