A judge in Nova Scotia gave custody of a toddler back to the child’s birth parents after finding that there would be no substantial risk of physical or mental harm to the child.  The child had been removed from the parents care by the Minster of Community Services who felt that the parent’s mental health issues and living conditions, among other things, placed the child in danger.

What Happened?

The parents in question began a relationship in the summer of 2015 when the mother was 18 and the father was 22. Several weeks into the relationship, the mother learned that she was pregnant. The couple moved in together before ultimately learning that the father was not the child’s biological father. Despite this information, the father committed to caring for the child.

Both parents had difficult childhoods and subsequent mental health challenges. The mother has had difficulties with mental health since her teens, twice being hospitalized. She was bullied, harmed herself via cutting, and abused prescription medication. The father had been subject to verbal and emotional abuse by his own father, leaving home by the time he was 15.

Over the course of their relationship, the father called police a number of times after fights with the mother, and once due to a suicide attempt by the mother. After one specific fight, which turned physical, the mother had been taken into police custody.

The couple’s child was born in February 2016. In June 2016, the province took her into the care of the Minister of Community Services citing the parents’ “multiple challenges” including mental health issues, interpersonal conflict, and unstable living conditions. The Minister argued that the parents were “poor parents” and that there was substantial risk of physical or emotional harm or neglect.

The Child

At the time of trial, the child was 20 months old. She is bi-racial. Since coming into the province’s care, she has only lived in one foster placement. The child has no unusual needs. Throughout the proceedings she was characterized as “happy” and “social” with an “even temperament”. She was also described as “healthy”, “developing well”, or “developing on par for her age” and had met all developmental milestones.

Throughout the duration of the child living in the foster home, the parents had communicated with her using a communication book.

The Parent’s Position

At trial, the parents argued that the Minister had not shown that there was a substantial risk of physical or emotional harm to the child.

The Minister’s Position

The Minister continued to argue, at trial, that there was a substantial chance of harm to the child.

Legally, under the province’s Children and Family Services Act, a “substantial risk” is a real chance of danger that is clear based on the evidence. In other words, the real chance of physical or emotional harm or neglect, or the probability that physical or emotional harm will actually occur. This needs to be established on a balance of probabilities. To establish this, the Minister pointed to:

• Each parent’s unresolved mental health problems;
• The uncertainty of the parents’ relationship; and
• The transiency and residence instability of the parents.

The Minister argued that based on these circumstances, the child would require protective services if she were returned to the care of her parents.

The Decision

In coming to a decision in this matter, the judge noted that since the last time a decision had been made with respect to the child:

• The parent’s access attendance had regularized;
• Both parents started to more regularly participate in couple’s counselling;
• The father was also attending individual counselling and had been prescribed anxiety medication; and
• The parents moved to a new apartment with no health and safety hazards.

The judge also addressed each of the Minister’s concerns in turn.

The Parent’s Mental Health

The judge concluded that neither the mother’s nor the father’s mental health put the child at risk.

The mother had experienced no mental health crises in the 17 months leading to the trial. In addition, her previous history indicated that when there had been a crisis, she had accessed mental health services. Furthermore, she had extensive experience caring for children as she was the oldest of six siblings and was “a confident, competent and capable care-giver”.

The father’s PTSD and anxiety had not hindered him in finding and keeping a job. When the Minister had complained that the parents had been missing too many access visits, the father switched jobs so that he could better accommodate the access. The found him to be “hard-working and committed to supporting his family”.

The Uncertainty of the Parent’s Relationship

The judge concluded that the state of the parents’ relationship would not put the child at risk. She noted the court’s “docket is populated by broken family relationships” but that the mere fact that a family is broken does not necessitate involvement by the Minister. There must be something more, which did not exist in this case.

The judge also acknowledged that as the trial in this matter went on, the parents had become more adept at isolating their children from their disagreements, and had improved their communication skills through therapy. She went on to note that while the parents could not guarantee that their relationship would endure, the court did not believe that such a guarantee was necessary. Their improved communication skills would assist them if they chose to separate.

The parents’ Transiency and Residence Instability

The judge concluded that the parent’s living situation would not put the child at risk.

The judge noted that it had been the parents’ accommodation that was causing their poverty to be conflated with being poor parents, however, that “There is a difference between parents who are poor, and poor parents”.

When their relationship first began the couple lived in an apartment. After the father lost his job due to layoffs the couple moved in with the mother’s parents temporarily. Too many people in a small home led to conflict, which led to police being called, and the Department of Community Services to be involved. The parents moved out but were later evicted from a different apartment due to conflicts with their landlord over slow repairs and other issues.

The judge stated, about the parents:

The parents cannot be faulted for their inability to afford homes in better neighbourhoods.  This past summer, both parents left their jobs which were interfering with their ability to attend appointments and access in response to the Minister’s concerns that they were missing appointments and access.  Without earnings, they have less income and fewer housing options.  [The father] has just found a job.  His earnings will reduce the amount of income assistance he receives.  They are aware of the need to provide [the child] with appropriate housing.

Final Decision

The judge did not accept that the parents would fail to get treatment or provide services to alleviate potential harm to the child. They are aware of their daughter’s needs and seek services and help to meet those needs, and to protect her from the challenges brought on by their poverty and mental health conditions.

The judge concluded that the child was not in need of protective services and dismissed the Minister’s application for permanent care and custody of the child.

Lessons Learned

Disputes over custody and access can be emotional and very challenging, particularly if the Children’s Aid Society or the Ministry of Children and Youth Services becomes involved.

If you have questions about your rights with respect to child custody and access, contact Gelman & Associates. We strive to provide you with the information and resources necessary to make informed decisions about family law matters. In addition to our firm’s handbook on separation and divorce and numerous web-based resources, all prospective clients are given a comprehensive family law kit during their initial consultation, with detailed information and resources to help individuals understand and navigate the separation and divorce process.

Our phone lines are open Monday to Friday from 8:00 a.m. to 8:00 p.m. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for an initial consultation.