Nova Scotia (Minister of Opportunities and Social Development) v. AJ

Nova Scotia (Minister of Opportunities and Social Development) v. AJ Court Supreme Court Date 2025-04-01 Citation 2025 NSSC 115 Docket Hfx SFHCFSA No. 130295 Judge/Registrar/Adjudicator Chiasson, C. LouAnn (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Nova Scotia (Minister of Opportunities and Social Development) v. AJ, 2025 NSSC 115 Date: 20250401 Docket: Hfx SFHCFSA No. 130295 Registry: Halifax Between: Minister of Opportunities and Social Development Applicant v. AJ, NJ, GJ and TJ Respondents Judge: The Honourable Justice C. LouAnn Chiasson Heard: November 29, 2024; January 8, 20, 21, 22 and 24, 2025, in Halifax, Nova Scotia Oral Decision: April 1, 2025 Counsel: Deanna Bru for the Applicant Katelyn Viner for the Respondent, AJ Jennifer Schofield for the Respondent, NJ Jessie Chisholm for the Respondents, GJ and TJ Restriction on Publication: Pursuant to subsection 94(1) of the Children and Family Services Act, S.N.S. 1990, c. 5, there is a ban on disclosing 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: Introduction [1] The allegations in this proceeding have torn this family apart. It has pitted father against son, brother against brother. Ms. J., the mother, would love nothing more than to parent her child, C. Her eldest son, G. and his wife T. have put forward a plan to continue to care for C.. The other family members oppose their plan. The parents have indicated that they would prefer C. be placed in permanent care with a foster family rather than be placed in the care of G. and his spouse. [2] Child protection proceedings are governed by the Children and Family Services Act, S.N.S. 1990, c. 5, as amended (“CFSA”). The purpose of the Act is stated in section 2 of the CFSA, supra- to protect children from harm, promote the integrity of the family and assure the best interests of the children. In all such proceedings, the paramount consideration is the best interests of the child. [3] I am mindful of the weighty task in making a determination that will impact the lives of C. and all those around him. The Minister must meet the burden of proving on a balance of probabilities that C. remains at risk and in need of protective services. After analyzing the admissible and credible evidence before the court, I will determine if C. remains at risk and who will care for C.. My focus is and will remain on the child at the centre of these proceedings. ISSUES [4] The issues to be addressed can be summarized as follows: 1. ADMISSIBLE EVIDENCE- Are the hearsay statements of the child admissible? 2. CREDIBILITY FINDINGS- Are the statements of the witnesses credible? 3. REVIEW OF PROTECTION FINDING: Does the child remain in need of protective services? a. Has the Minister met the burden of proving that the father poses a risk to the child as a result of physical and sexual abuse? b. Has the Minister met the burden of proving that the mother poses a risk to the child or can the child be returned to the care of his mother? 4. PERMANENT CARE a. If the protection risks remain, should the child be placed in the permanent care of the Minister? b. Alternatively, should the child be placed in the care of G. and T.? BACKGROUND [5] The parties immigrated in Canada prior to the birth of the youngest child. At the time of the child’s birth, the parties already had two adult children, A. and G.. [6] A. is currently 35 years old and resides in Ontario with his spouse. Since moving to Ontario in 2016, he has returned to visit the family in Nova Scotia approximately once per year. A. filed an affidavit in the proceeding supporting his mother’s request for C. to return to her care. The affidavit of A. is the only evidence filed on behalf of the father. [7] G. is 38 years old and resides in HRM with his spouse and their children. Currently G. and his spouse have care of C.. Both G. and his wife, T., testified at the proceeding. [8] When the child, C. was born, his mother was 51 years old. C. was conceived through IVF. The mother held a very traditional role in the family and looked after the family home and child rearing responsibilities. She speaks virtually no English. [9] At the time of these proceedings she was 62 years of age and in poor health. She suffers from a lung disease, hearing impairment, and other health issues. She requires support from others, including A. and his wife, to assist with her own care. [10] The father worked outside the home. He is 62 years old. Although he understands some English, the father’s first language is not English. In June 2020, the father lost his employment following an allegation of sexual assault at his workplace. The father travelled to another country for the vast majority of 2021 and was unable to return to Canada for a significant period of time given the pandemic. [11] Following his return to Canada in November, 2021, he was arrested and charged with sexual assault. At the conclusion of the criminal trial, he was convicted and served six months in prison. He was released from prison in December 2023. [12] Prior to the child protection proceedings, the Respondents resided in a home owned jointly by the father and the son, A.. They rented rooms through Airbnb to various individuals. Since the commencement of the proceedings, the parents have advised that they are separated and intend to stay separated. [13] G. and his spouse assumed a significant amount of C.’s care commencing in 2020. Over the next few years, G. and his spouse assumed more and more of the responsibilities related to C.. These responsibilities included health care, educational assistance and many other child care matters. [14] They provided overnight care to C. which increased over time. This resulted in C. dividing his time between them and the parents of C. prior to the agency’s involvement. This assumption of a quasi parental role by G. and his spouse was consented to and supported by the parents of C.. [15] In June 2023, C. disclosed to G.’s spouse (T.) that he had been sexually abused by his father for an extended period of time. Authorities were contacted. There was a joint interview of C. by the police and the Department of Community Services. [16] On June 30, 2023, the father was charged with assault and sexual interference in relation to C.. C. remained in the care of G. and his spouse as of June 2023. The criminal trial is scheduled to proceed in April 2025. [17] At the hearing of this matter, the father testified that he would like to have parenting time with C. as soon as any criminal restrictions are lifted. LAW & ANALYSIS CHILD HEARSAY STATEMENTS [18] A preliminary determination must be made on the admissibility of the child’s hearsay statements. Counsel for the mother objects to the admission of C.’s statements made to various individuals. Although not specifically referenced in argument, it is believed that the objection relates to all statements made by C to the following individuals: 1) to the police and the agency during the joint interview; 2) statements made to C’s therapist, Wendy Greene; 3) statements made to G. and T.. [19] Statutory authority to consider hearsay statements from children is set out in s. 96(3) of the CFSA, supra. The court must consider the best interests of the child and the reliability of the statements of the child in conducting an analysis of admissibility. [20] In determining threshold admissibility, the court must be satisfied that the statements are necessary and reliable. As conceded by counsel for the mother, the first stage of necessity is conceded. The second stage of the analysis involves a consideration of the reliability of the statements. [21] As it relates to reliability of the statements made in a joint interview to the police and social worker, there are two primary factors for the court to consider: whether the child was asked open ended questions, and whether the child appreciates the difference between a truth and a lie (Nova Scotia (Minister of Community Services) v D.B., 2016 NSCA 74 (N.S.C.A.)). [22] A review of the transcript of the interview confirms that the interviewers asked open ended questions. They ensured C. was comfortable during the interview and built a rapport with him. What was lacking in the interview process was a discussion between a truth and a lie. [23] As noted by the Court of Appeal in Nova Scotia (Minister of Community Services) v DB, supra, failure to adhere to protocol may not be fatal to the reliability of the statements. The Court confirmed that “[e]ach case will have to be determined based upon its particular circumstance…” [24] Child hearsay statements have been discussed on numerous occasions in the context of child protection. The case of Mi’kmaw Family and Children Services of Nova Scotia v H.F., 2013 NSSC 310 (N.S.S.C.), discussed various factors to be considered by the court. As noted in the case of G.A. v Children’s Aid Society of Cape Breton-Victoria, 2004 NSCA 52 (N.S.C.A.), the Court of Appeal endorsed a principled approach to the admission of hearsay statements of children and confirmed that there was no rigid formula for the receipt of such evidence. [25] More recently, the court considered the factors to address in determining the reliability of child hearsay statements in the case of Miller v. Kruezer, 2024 NSSC 251 (CanLii). Justice Doucet referenced with approval, the factors noted in Paciocco, Paciocco and Struesser, The Law of Evidence, (Toronto: Irwin Law, 2020) at pp. 164- 165. The authors provide a list of factors that indicate inherent trustworthiness of statements. [26] Counsel for the parents argue that C.’s statements are not reliable. They suggest that the disclosures of abuse were not contemporaneous and that there were inconsistencies in C.’s statements. [27] The inconsistencies relate to the child’s denial that the mother had physically disciplined him. The child initially denied any physical abuse of the mother but subsequently advised his therapist and to T. and G. that he had been hit by her with a “rod.” As noted by the therapist, Wendy Greene, such disclosures taking place over time when the child is more comfortable are common. [28] Another inconsistency noted by counsel for the parents involved the child’s initial interview indicating his father had slapped him. There was no mention of the use of a “rod” to hit him by either parent. However, subsequently, the child discussed being hit by a “rod” by both of his parents. This was corroborated by G. when he confronted his mother about the use of the “rod” and threw a “rod” away. [29] The statements made by C. meet the standard for threshold reliability. I have considered the factors as set out in the case law and have applied those to the unique circumstances of this case. The statements of C. to the police, social workers, therapist, as well as statements to T. and G. are generally consistent. [30] The statements in the joint interview are admissible, despite the flaw in not discussing the difference between a truth and a lie. Although preferable for the authorities to have done so, as noted in G.A., supra, this may not be fatal to the analysis. I have considered additional factors, including other consistent and corroborating evidence. [31] Despite meeting the test for threshold reliability, the issue of ultimate reliability must be determined based on the totality of the evidence. Ultimate reliability is a far more stringent analysis in that the court will assess what, if any weight to put on the child’s hearsay statements. [32] The weight to be afforded children’s hearsay statements was canvassed in the case of D.L. v. ANCR, 2022 MBQB 109 (CanLII) (Man. Q.B.). At paragraph 55, the court addressed the principles to be considered which are summarized as follows: a) Despite inconsistencies in evidence, the evidence must be viewed through the lens of a child (F.H. v. McDougall, 2008 SCC 53). b) The determination of reliability is based on a more common sense, child-centered approach versus the former inherent unreliability of children’s statements warranting special caution (R. v. W.(R.), [1992] 2 SCR 122) and, c) In weighing the evidence of the child, the court must have regard to the age, intelligence and development of the child. (D.G.S. v. The Director of Child and Family Services, 2019 MBQB 40). As noted in the D.G.S. case, supra, “[w]hat is important is whether the essential details of a child’s story are clear and consistent and any flaws not go to the heart of their story (R. v. Merkl, 2017 MBQB 129). [33] I find as a fact that C.’s hearsay statements are reliable for the following reasons: 1. The initial disclosure of C. to T. was spontaneous, natural and without suggestion. 2. The initial disclosure of C. to T. occurred within a few weeks of the last incident of alleged sexual abuse by the father. The timing of the disclosure is relatively contemporaneous. 3. There is no reasonable motive for C. to fabricate the allegations. 4. The mother provided written testimony that her husband had touched C. when C. was in the bathroom. 5. The language used by C. in his interview and in discussions with Wendy Greene were age appropriate. There was no indication of coaching in relation to his disclosures. 6. C. was balanced in his comments about his father and was able to recall positive events with his father such as riding a scooter and playing a video game with him. 7. In the joint interview, C. disclosed that he wanted to keep the abuse a secret because he was embarrassed. He further indicated that his mother could not do anything about it because his father was aggressive with her. 8. The inconsistencies in C.’s disclosures in the joint interview are not significant. He described being slapped. After therapeutic intervention, he also disclosed being hit by his parents with rods. As noted by Ms. Greene, such additional disclosures made when a child feels safe are not unusual. 9. Ms. Greene testified that disclosures of sexual abuse may be incremental as it is difficult for children to make sense of what has happened. As they progress in treatment, it is common that they can recall more details that have occurred. Ms. Greene testified that this is likely because they have had to move away from the event emotionally and psychologically as it was occurring. 10. The prior denial of abuse by C. to G. is not significant. Allegations of abuse may be denied for a period of time. This is particularly relevant when one considers C.’s young age and the vulnerability of C. in relation to his father. 11. The mother corroborated C.’s allegations of being slapped by the father in her written testimony. 12. The mother provided written testimony that her husband would insist that the child sleep downstairs with him on occasion. She indicated that C. could not sleep upstairs with her on these occasions and the father provided no explanation. 13. There is corroborating testimony from G. as to the physical abuse by the parents during his childhood. 14. There is corroborating testimony from A. in relation to the physical discipline by the parents during his childhood. CREDIBILITY [34] I have considered the factors outlined in Baker-Warren v Denault, 2009 NSSC 59 (N.S.S.C.) in considering the credibility of the witnesses. I have considered all relevant evidence but will highlight certain portions of the evidence for context. [35] As it relates to the evidence of the father on cross examination, I find his evidence to lack credibility. The father was compelled to provide evidence on cross examination. He did not voluntarily provide any evidence in the proceeding. The only evidence filed by his counsel was the affidavit of his adult son, A.. [36] The inconsistencies in the father’s evidence when compared to other witnesses was significant. The father’s denials of any form of domestic violence related to the mother are not credible. G. testified to the domestic violence against his mother witnessed by him on numerous occasions over a number of years. [37] G. recalled an incident where his father was threatening his mother and threatening self harm. This incident happened in approximately 2009. When G. was unable to diffuse the situation with his father, he had to contact police and the father was taken away in handcuffs. Despite this episode, his parents remained together. [38] C. recalled specific incidents of domestic violence of his father directed to his mother. He described one occasion where his mother was making tea for his father and his father pushed his mother’s hand. This caused the tea mug his mother was holding to drop and break. C. described his father yelling “at the top of his lungs really mad even though it was his fault and really like slapped [his] mom really hard. (Ref. Exhibit 3, tab 3, p. 49). C. described the physical abuse of his mother to include being hit on her face, arms, and shoulders. [39] The father only admitted to striking C. on one occasion when he fell down the stairs. He testified that he was concerned for his son’s welfare and used physical punishment to ensure he did not do that again. [40] The evidence as a whole, including the examples noted herein, lead me to conclude that the father’s evidence is not credible. [41] The mother initially acknowledged that she was the victim of domestic violence but recanted that evidence on cross examination. The mother also acknowledged that her spouse had physically disciplined the child by slapping him on occasion. In affidavit evidence she acknowledged that her spouse touched their child inappropriately. Once again, she recanted this testimony under cross examination. [42] My sympathies lie with the mother and the vast power imbalance in this family dynamic. I find as a fact that she was the victim of family violence for a number of years. Family violence that included emotional as well as physical abuse at the hands of her husband. In moving to Canada where she did not speak the language, had little social supports and worked within the home, this power imbalance was magnified. [43] The evidence provided by her own therapist and by herself in her written affidavit was contradicted by her oral testimony on the stand. I am mindful of the potential issues in translating her testimony into the English language. The court must be mindful that nuances of language may not be apparent in translation. Unfortunately, the mother was repeatedly questioned by counsel in relation to the allegations of abuse. On each occasion, she confirmed that neither she nor the child suffered any form of abuse at the hands of her spouse. [44] The evidence of the mother lacks credibility based on the inconsistencies in her testimony. [45] The evidence of A. was provided in a clear and cogent way. He indicated that he did not believe the allegations against his father. The difficulty with the evidence of A. do not relate to credibility, but rather his limited direct/ personal contact with C.. [46] A. moved away when C. was two years old. He only visited approximately once per year. He has not seen C. since July 2020 when his mother and C. went to Ontario for a visit. Most of his information related to the Respondent’s parenting abilities would have been information supplied by his parents- parents who have denied any difficulties in their parenting abilities. [47] The evidence of T. and G. was straight forward and forthright. G. provided evidence that was direct and, at times, unflattering to him. He acknowledged having a difficult relationship with his father. He testified that he would argue with his father and that it would involve yelling. He indicated that the arguments generally involved the father being abusive to mother either verbally or physically, or being verbally or physically abusive to G.. [48] G. acknowledges punching a wall during an argument over a decade ago. He indicated that he was upset over losing his emotions on that occasion and has done a lot of work to ensure that he does not lose control again. His emotions got the better of him at that time as he was concerned over the abuse of his mother at the hands of his father. [49] The evidence of T. was also consistent and forthright. She described the disclosures of abuse by C. to her. T. confirmed that she and G. immediately reached out to authorities to report the disclosures. She testified to the increasing role they were playing in C.’s care but did not have the documentation necessary to provide the care (i.e. to the school, health care providers). She confirmed they sought legal advice prior to the child protection proceeding to see if there could be documentation confirming their ability to continue to provide care to C.. I found her evidence to be credible. [50] The evidence of the therapist, Wendy Greene was credible and is given considerable weight. Ms. Greene has provided expert evidence in this court over years. Her decades of experience in working with children was clear. She provided evidence of the child’s behaviour and his language during their sessions commencing in July 2023. She was clear and unequivocal in her belief related to the child’s allegations of abuse. [51] It is also worthy of note that Ms. Greene was clearly concerned about this child. She became slightly emotional on the stand discussing the love and care that T and G have provided to C.. She stated that C felt safe and loved in their home and discussed how foundational that would be to C’s well being in the future. [52] The evidence of the social workers was generally consistent. The court heard evidence from Kelly Adamson, Aghogho Okundalaiye, and Tina Jennings. The evidence of the social workers centred on discussions with C., the parents, T., G. and all relevant collaterals. Evidence was given related to services provided, risk assessments conducted and actions taken by the Minister. The evidence of the workers is fully detailed in the affidavits filed by the Minister. PROTECTION FINDING- Does the father pose a risk to the child as a result of physical and sexual abuse? [53] The Minister bears the burden of proving on a balance of probabilities that the father poses a risk to C. The burden is not heightened by virtue of the allegations but remains proof on a balance of probabilities (Nova Scotia (Community Services) v C.K.Z. 2016,NSCA 61 (N.S.C.A.)). The Minister is seeking a finding pursuant to section 22(2)(a) and 22(2)(c) of the CFSA, supra. [54] The father opposed those findings but provided no evidence in chief. The evidence tendered on his behalf was an affidavit from his son, A. As noted, the father was compelled to testify on cross examination at the trial. [55] To make out a finding under s. 22(2)(a), the Minister must establish that the child suffered physical harm inflicted on him by the father. The evidence clearly established that the father was physical with C. by slapping him. I also find as a fact that the father used a rod to hit C. [56] Counsel for the father does not deny that he slapped C. on one occasion. C. testified that his father struck him often, sometimes slapping him and sometimes striking him with a rod. In the joint interview, C. indicated he would sometimes be physically hit if he refused his father’s sexual touching. [57] The act of physically disciplining a child is permissible in the criminal context pursuant to s. 43 of the Criminal Code of Canada, R.S.C. 1985, C.46 (as amended). The Supreme Court of Canada indicated that the discipline must be intended for educative or corrective purposes. The child must be capable of benefitting from the corrective discipline and the force used must be reasonable. Physical discipline using objects (such as a rod) is physically and emotionally harmful. (Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) 2004 SCC 4 (S.C.C.), Nova Scotia (Minister of Community Services) v D.B., 2016 NSFC 4). [58] As noted in paragraph 34 of the Canadian Foundation case, supra: “ Section 43’s ambit is further defined by the direction to consider the circumstances under which corrective force is used. National and international precedents have set out factors to be considered. Article 3 of the European Convention on Human Rights, 213 U.N.T.S. 221, forbids inhuman and degrading treatment. The European Court of Human Rights, in determining whether parental treatment of a child was severe enough to fall within the scope of Article 3, held that assessment must take account of “all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim”: Eur. Court H.R., A. v. United Kingdom, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2699. These factors properly focus on the prospective effect of the corrective force upon the child, as required by s. 43. [59] The matter before me involves child protection, not a criminal charge. Nevertheless, the factors noted by the Supreme Court of Canada provide some framework to consider in assessing whether the use of physical force is “acceptable.” Although some proponents believe that any physical discipline is harmful, the current state of the case law does not accept that point of view. [60] C. disclosed being slapped by his father in the face on a number of occasions. He also disclosed to his therapist, Wendy Greene that his mother and father had separate rods for hitting him. He advised Ms. Greene that his father had a rod (described sometimes as a larger stick than his mother’s) to hit him with. He told her that the rod was kept in the home on top of a tall cabinet or fridge. He described that his father would hit him with the rod on his legs. [61] The father attributes the one acknowledged incident of physical aggression to discipline. Discipline, however, was not the sole reason for the physical actions of the father against C. C. disclosed that his father became enraged and hit him on one occasion when he was playing with a ballon with his mother. Other times, the father would hit C. when he refused his father’s sexual advances. Surely this cannot be said to be appropriate corrective action taken to discipline the child. [62] Often when his father would become aggressive, his mother would advise C. to avoid contact with him. C. was not only fearful for what his father would do to him, but also very fearful of what is father would do to his mother. The father wielded control over both his wife and his young son with fear. [63] G. testified that C. discussed the physical punishment by his father gradually over time. G. testified that on more than a couple of occasions, he would arrive to pick C. up on weekends and the parents would greet him at the door and start disclosing C.’s behaviour. They would advise G. somewhat proudly that they had to hit him because he was not listening and he should talk to C. about that. [64] I have taken into account the following factors in reaching a decision on the use of physical force against C. by his father: the nature and context of the treatment, its duration, its physical and mental effects and the sex, age and state of health of the victim. [65] C. was very young when his father started to hit him. His mental health was negatively impacted by his father’s treatment of both himself and of his mother. I must also consider the allegations of sexual abuse in contextualizing the potential harm and effect on C.. [66] I find that the Minister has met the burden of proving that C. has suffered physical harm inflicted by his father pursuant to section 22 (2) (a) of the CFSA, supra. [67] I also find that the Minister has met the burden of proving that C. was sexually abused by his father. I make this finding based on the following: 1. C. provided a detailed account of sexual abuse in his statement given in the joint interview to the police and to the social worker. He described in detail where the abuse occurred, what transpired and who was present. He described that his father would touch him sexually with his hands but the father would remain fully clothed. He described the incidents usually taking place in the bathroom after showering or in the basement. C. also described his father hitting him if he said no to his father. He described that if his mother walked in, his father would stop. 2. C. used age appropriate language when discussing the abuse. 3. There was a lack of embellishment by C. in describing the sexual abuse. He indicated that the frequency of the sexual abuse declined in the recent past starting at the age of five. He indicated that it happened approximately 1-2 times every 1-2 months now, but occurred more frequently when he was younger. 4. There was corroborating evidence provided by the mother in discovering that the father had touched C. inappropriately. 5. There was evidence provided by the mother that the father inexplicably insisted that the child sleep downstairs with him, despite the mother’s protests. 6. C.’s statements of sexual abuse were made to multiple parties including Wendy Greene, and C.’s current caregivers, T. and G.. 7. When asked why he did not disclose the sexual abuse earlier, C. replied that he wanted to keep it a secret. When asked why, his response was “I didn’t want anybody to know because- well, it’s embarrassing. I don’t want anybody – I wanted a- I would probably lose all my friends and I didn’t want to everyone to dislike me just because my dad is bad.” (Ref, Exhibit 3, tab 3, page 45). [68] It is a tragedy that C. endured sexual abuse for over five years in silence. Abuse which began when he was a mere five years old. The impact of this abuse is immeasurable. Hopefully, with time, intervention and a safe and secure home, the impacts will lessen. [69] In conclusion, I find as a fact that the father has both physically and sexually abused C. contrary to sections 22 (2) (a) and (c) of the CFSA, supra, and will be placed on the Child Abuse Registry. PROTECTION FINDING- Does the mother pose a risk to the child or can the child be returned to her care? [70] The Minister has the burden of showing that there is a substantial risk posed to C. by his mother. The Minister did not seek a finding pursuant to section 22(2)(a) as it relates to the mother. As the relief has not been claimed by the Minister, I will not be addressing the evidence related to past physical discipline of the mother. [71] I will address the provisions plead by the Minister in the Notice of Child Protection Application other than section 22 (2)(a). The sections plead reference sections 22(2) (b), (d), (f) (g) and (i). [72] Sections 22(2)(b), (d) and (g) relate to allegations of “substantial risk”. Substantial risk has been considered in a number of cases and is defined in section 22(1) of the CFSA, supra. [73] As noted by Justice Jollimore in Nova Scotia (Minister of Community Services) v. S.C., 2017 NSSC 336 (N.S.S.C.), at paragraph 35: “Substantial risk” is a real chance of danger that is apparent on the evidence: subsection 22(1) of the Children and Family Services Act. It is the real chance of physical or emotional harm or neglect that must be proved to the civil standard. [74] The Court of Appeal in C.R. v Nova Scotia (Community Services) 2019 NSCA 19 (N.S.C.A.), held that the substantial risk assessment cannot be speculative or illusory. The court must determine that the risk or “chance of danger” exists on the evidence presented. [75] Section 22(2)(b) deals with the risk that the child will suffer physical harm inflicted or caused in 22(2)(a). Documentary evidence provided on behalf of the mother acknowledged the past physical harm inflicted by the father. [76] At paragraph 118 of the mother’s affidavit she stated that her husband often yelled and was very angry and aggressive. The mother’s therapist provide five reports in relation to the mother. In the last four reports, the therapist stated the mother had acknowledged the history of physical abuse of her spouse towards herself and C.. [77] Counsel on behalf of the mother argued vehemently that the mother has been “open and honest with respect to domestic violence. Ms. [J] admitted that she was a victim of domestic violence, and acknowledged that [C] was exposed to and aware of violence perpetrated by [Mr. J]. Ms. [J.] has actively worked to address this risk.” Counsel indicated that she has “demonstrated insight into the impact of domestic violence and has engaged in therapeutic work to process and remedy her own trauma.” [78] Any optimism that the mother had gained the necessary insight to address the risk to C. from his father was dispelled following her testimony on the stand. She indicated that the father was not physically violent with her. She indicated that T. and G. and convinced C. to lie about the allegations against the father. She could not articulate anything learned in counselling. [79] She appeared very confused in giving her evidence. She denied that she had been provided any of the documents from the Minister despite her son, A. indicating that he had translated the documents for her. She denied receiving documents including the transcript of C.’s joint interview with the police and social worker and had no knowledge of the contents of any of the disclosure. [80] G. testified that he was concerned about his mother’s cognitive decline. He gave an example of attending an appointment with her in 2021 for her hearing aids and his mother was unable to comprehend the conversation despite his translation for her. He indicated that his concern related to her cognition have increased over time. Her ability to comprehend the questions on cross examination was extremely limited (despite translation). [81] In the joint interview of C., he stated that he told his mother about the abuse. He indicated that she could not do anything about it. I find as a fact that the mother knew of the abuse but felt powerless to do anything to stop her husband. Sadly, I do not find that the services provided the mother have altered her ability to protect C. from his father. [82] The father has indicated that once the criminal prohibition against contact with C. is lifted, he intends to have a relationship with his son and will have parenting time with him. The mother indicated that she will ensure C.’s safety. I am uncertain how she will be able to ensure there is no risk to C. if Mr. J. insists on parenting C. The power dynamic has proven that she would be unable to protect C. from his father. [83] Given the limitations of language and health, it is clear that the mother is unable to parent on her own. The mother provided evidence that she will have supports in the community to assist her if C. is returned to her care. Her supports include A. and his wife, members of her religious community, and tenants in the Airbnb. [84] The difficulty is that there are allegations of inappropriate touching of C. by tenants of the Airbnb. It is unknown if it is the same individuals, but nevertheless, the plan to rely on the tenants appears to be problematic. It is another factor to be considered in relation to the risk of physical harm and/ or sexual harm. [85] In the present circumstances, a finding of risk of physical harm is appropriate. The evidence confirms C. would be at risk in the care of his mother related to physical harm from his father. [86] Section 22(2)(d) deals with the risk that the child would be sexually abused as set out in 22(2)(c). As with the risk of physical abuse, the mother is equally ill equipped to protect C. from any risk of sexual abuse by his father. The evidence reveals that C. would be at risk in the care of his mother related to sexual abuse by his father. [87] Section 22(2)(g) deals with the risk that the child would suffer emotional abuse and the parent does not provide services or treatment to alleviate the abuse. As noted in the case of Nova Scotia (Community Services) v K.M., 2019 NSSC 312 (N.S.S.C.), the court held at paragraph 27: “A finding of a substantial risk of emotional abuse, like any other protection finding, is not one that will be entered lightly. Evidence must support such a finding in keeping with the civil burden of proof. Such a finding involves both objective and subjective elements. The parental conduct must be viewed objectively to prove actions that seriously interfere with a child. The parental conduct must also be viewed subjectively based on the impact that the conduct has or will likely have on the specific child.” [88] The principles in KM, supra, have been cited in a number of cases and recently cited with approval by our Court of Appeal in A.B. v. Nova Scotia (Community Services), 2022 NSCA 24 (N.S,C.A.). [89] Emotional abuse has been defined in the CFSA, supra, at section 3(1)(1a) to be: “… acts that seriously interfere with a child’s healthy development, emotional functioning and attachment to others such as: (i) Rejection, (ii) Isolation, including depriving the child from normal social interactions, (iii) Deprivation of affection or cognitive stimulation, (iv) Inappropriate criticism, humiliation or expectations of or threats or accusations toward the child, or (v) Any other similar acts.” [90] The evidence reveals that C. would be at risk of emotional abuse in the care of his mother. There is no question that C. loves his mother and she loves him. The difficulty lies in the parenting dynamic that has been established throughout C.’s life. [91] The mother does not fully appreciate the impact of the abuse C. has suffered, nor is she equipped to provide appropriate and secure home for C.- despite her best efforts. The mother continues to struggle with several factors impeding her ability to parent including her cognitive state and health issues. I find as a fact that mother poses an ongoing risk to C. pursuant to sections 22 (2) (b), (d) and (g). [92] I make this finding despite the empathy and sadness felt for the mother. She is the victim of domestic violence. As such, she needed support and services to assist her in addressing the history of violence perpetrated on both her and C.. She received the services, but in the end was unable to sufficiently address the protection risks. [93] I also find the child has suffered emotional abuse pursuant to s. 22(2)(f). The mother has used demeaning and derogatory methods of discipline with C. in the past (including ridicule, removal of clothing, etc.). She may have simply been following the example established by her spouse, but that does not alleviate the abuse C. suffered. [94] I also find that C. has been exposed to violence towards his mother. I do not find that the services provided to the mother are adequate to ensure that the violence at the hands of her husband have been remedied or alleviated. I am extremely concerned about the continuing vulnerability of the mother and the potential exposure to further domestic violence at the hands of the father. A finding of protective services is also warranted under s. 22(2)(i) of the CFSA, supra. PERMANENT CARE AND CUSTODY [95] Having found that the grounds of alleged risk to C. have been substantiated as against both parents, I then turn to the issue of whether permanent care is appropriate. As noted in s. 42(2), (3) and (4) of the CFSA, supra, I must consider various factors prior to determining if permanent care is appropriate. [96] Section 42(2) of the CFSA, supra, directs the Court not to remove children from the care of their parents unless less intrusive alternatives, including services to promote the integrity of the family, have been attempted and have failed, or have been refused by the parent, or would be inadequate to protect the children. [97] The Minister must provide services to appropriately reduce the risk to the child. The services must effect change within the legislative time frame. (L.D. v. Children’s Aid Society of Cape-Breton- Victoria, 2010 NSCA 64 (N.S.C.A.)). The Minister provided those services to the mother, but the necessary mitigation of risk did not occur. [98] Services have been attempted in relation to the mother which have failed. Therapy was provided to provide insight into the effects of domestic violence. This service did not have the necessary impact as the mother continues to deny and minimize the domestic violence that occurred in the home. [99] As noted in section 42(4) of the CFSA, supra, the court should not make an order for permanent care unless the court is satisfied that the circumstances justifying the order of permanent care are unlikely to change within a reasonable time. Based upon the evidence before the court, the circumstances related to the parenting abilities of the mother and father are unlikely to change. If anything, the concerns related to the ability of the mother may be negatively impacted over time. [100] There is one further section to consider and that is section 42(3) of the CFSA, supra. If it is necessary to remove a child from the care of a parent, the court must consider placement with a relative, neighbour, or other member of the child’s community or extended family. [101] As noted in the case of Nova Scotia (Community Services) v. M.O., 2019 NSSC 117 (N.S.S.C.), at paragraph 70: “…The onus falls upon the adult sibling advancing the plan to provide sufficient information to support that the plan is in the children’s best interests (ref Children's Aid Society of Halifax v. B. (T.), [2001] N.S.J. No. 225 (N.S. C.A.)).” [102] The court must have sufficient information in the proposed family plan of care to assess whether that plan is viable and in the child’s best interests. I do find that such a plan exists- it is the plan of T. and G. to care for C.. PLACEMENT WITH G. AND T. [103] G. and T. have been providing care for C. over a number of years. The care they have provided to him has increased in both frequency and scope. As time has gone on, they have assumed many of the parenting responsibilities for C. including responsibilities related to health and education. G. and T. also support C.’s culture and extended family connections. As C.’s biological brother, they share they same cultural heritage. [104] G. and T. have sought out resources to support C.’s culture including sourcing: books, activities, and community events. C. finds learning about his culture interesting and G. plans to continue to foster that interest. G. also ensures that C. is connected to family (including his grandmother and aunt- the father’s sister) and will continue to do so. [105] Prior to the child protection application, this assumption of parenting roles was done with the full support and consent of the parents. Sadly, the catastrophic and divisive nature of these proceedings changed all of that. The parents have indicated that if the child cannot be returned to the care of the mother, they would prefer the child be placed in foster care. [106] Such a position is not in C.’s best interests. It is motivated by their extreme opposition to their eldest son, G.. They have gone as far as to blame G. for coaching C. to make false allegations of abuse. [107] What makes the position of the parents even more disturbing is that they have requested to cut T. and G. completely out of C.’s life. The fracturing of the only stable home C. has had would be devastating to C.. C. has developed very strong bonds with G. and T.. He is loved, supported and nurtured. This loving environment provided to C. was enough to cause a seasoned, experienced therapist to become emotional when discussing it. [108] I find it in C.’s best interest to remain in the care of G. and T. pursuant to an order under the Parenting and Support Act, S.N.S. 2015, c.44 (“PSA”). The Minister is supportive of the PSA, supra, order sought by G. and T. [109] To address the risks posed by the parents of C., the following terms will be contained in the Order: 1. The father is to have no parenting time or contact with C.. As a result of the findings contained herein, the father’s name will be placed on the Child Abuse Registry. 2. The mother is to have parenting time solely at the discretion of T. and G. and on terms acceptable to T. and G. including levels of supervision for the mother as they deem appropriate. CONCLUSION [110] A parent that has sexually, physically and emotionally abused their child without remorse, without acknowledgement, without treatment, should not and will not have rights as a parent. [111] It has been heart wrenching to witness the ongoing power and control the father has over this family. The mother has suffered emotional and physical abuse. During the course of therapy she had glimmers of appreciation for what she endured and what C. went through. Sadly, on the witness stand, she recanted the abuse suffered. In doing so, she has confirmed her inability to reclaim her power as a mother. [112] This mother loves her son and wants and needs to be a mother to him. She has much to offer her son, but she has been broken by the years of abuse of her spouse. What role she will play in C.’s life will be guided by the people best able to provide for C.’s care- G. and T.. [113] A. testified in favour of his mother’s plan. It is clear that he is devoted and loves his mother, as he should. His lens, however, is clouded by the efforts of his father to negate the reality C. has lived through. [114] This family has been fractured. Years of abuse at the hands of the father has resulted in intervention by the Minister and criminal charges by the police. Services were put in place to try and address the abuse, but the services have failed to alleviate the risks. I am not optimistic that this family will recover and come together for the sake of C. One can only hope that they will. Chiasson, J.