The father could also not be relied upon to be a protective parent: court
The NS Supreme Court has refused to grant care and custody to the parents of a child who remains at risk of harm due to the mother’s substance abuse.
In Nova Scotia (Community Services) v NL, WM, 2023 NSSC 185, the parents of a 12-year-old child have a long history of child protection involvement due to substance abuse and violence issues. The minister sought permanent care and custody of the child, which led to a contested permanent care hearing. The minister argued that the child needed protective services and asked the court to place her in the minister’s permanent care and custody. The minister has also indicated a plan for the child to be adopted by her sister should the permanent care and custody order be granted.
The minister alleged that the child’s mother has substance abuse issues that she has not fully addressed. The minister noted that the mother suffered significant relapses despite completing a substantive in-house treatment program several years ago. The minister claimed that the mother continues to struggle with her addiction despite claiming she has the tools and skills to remain sober.
The minister also asked the court to infer that the child’s parents are in a relationship and continue to reside together. The minister further asserted that the father has failed to demonstrate insight into the risk posed by the mother’s ongoing substance abuse. Accordingly, the minister contended that it is in the child’s best interest to be placed in the permanent care and custody of the minister.
The father asserted that the child was never at risk of harm, and should she be at risk, he would act as the protective parent to ensure the child was safe. On the other hand, the mother claimed that she is sober and has the tools and skills to remain sober. However, she also acknowledged that her substance abuse issue poses a substantial risk of harm to the child.
The NS Supreme Court explained that the minister bears the burden of proving its case on a balance of probabilities by providing the court with clear, compelling, and convincing evidence that the child remains at substantial risk of harm and that it is in the child’s best interest to be placed in the permanent care and custody of the minister.
The court further said that decisions about permanent care require the court to consider factors unique to the needs of each child and how those needs relate to the risk of harm. “Substantial risk” means a real chance of danger that is apparent in the evidence. The court must be satisfied that the possibility of danger is real, rather than speculative or imaginary, and substantial in that there is a risk of serious harm or serious risk.
When the court determines that it is necessary to remove the child from the care of a parent, the court must first consider whether it is possible to place the child with a relative, neighbour, or other members of the child’s community or extended family. The court stressed that the onus is on a potential family placement to put before the court a reasonable plan for the care of the child. “Reasonable” means proposals that are sound, sensible, workable, well-conceived and have a basis.
The court applied the civil burden of proof and the provisions of the law, and it has also considered the applicable case law, including that relating to reliability. The court found that the minister had established, on a balance of probabilities, that the father’s resumed cohabitation with the mother posed a substantial risk of harm to the child, given the father’s attitude towards the mother’s serious addiction issue.
While the mother acknowledged her substance abuse issues pose an ongoing risk of harm to the child, the court underscored that the salient point is whether the father will act as a protective parent by ensuring the child is not exposed to the risk of harm presented by the mother. Based on the evidence, the court concluded that the father could not be relied upon to be a protective parent for the child as the court found that he was not honest about the risk.
The court ruled that the child remains at substantial risk of harm and found that it is in the child’s best interest to be placed in the permanent care and custody of the minister.
