Court File and Parties
Ontario Court of Justice (West Region, at St. Thomas)
Kelly Steinburg APPLICANT
Jody McIntyre RESPONDENT
Cross-Motions for Interim Custody
Cross-Motions for Interim Custody
Cross-motions for interim custody of Devon Tyler McIntyre, born September 8, 2007, were argued today. His biological parents are the parties herein.
Background
Background
Each parent has a dark history. The father's history includes abuse of drugs and alcohol and an ongoing criminal history. The mother's is her mental health. Both gravitated to anti-social lifestyles. Both have extensive histories with child welfare agencies. Their history with child welfare agencies before 2010 is well defined in the materials and does not need repeating for the purposes of this decision.
Devon has not had an easy life. He was apprehended by the child welfare authorities at birth due to his mother's history. Before he turned three years of age, a multitude of persons had cared for him including foster parents, his own parents and family members. He was in the care of his mother intermittently over this timeline for about 18 months and with his father about 16 months. The placements with his parents in this timeline were insecure and unstable.
Social scientists agree that a child's personal, emotional and behavioural traits will be defined in the first three years of his life. In Devon's case, he is now defined as significantly behaviourally challenged. His future will be defined by meetings with professionals and counsellors who will work with him and a parent to establish daily routines and disciplinary patterns. Devon will be a challenge if a parent does not offer fixed daily routines, fixed disciplinary routines and a level of consistency in his surroundings. Consistency does not end with routines; he will need consistency in who will parent him, parental demeanour and home life.
Devon's last apprehension was from the care of his mother in January of 2010. After a brief period in foster care and with an aunt, he ended up in the care of his paternal grandparents until August 1, 2013.
In June of 2013, the parents negotiated a custody/access agreement wherein they were to have joint custody with primary residence with the father. The mother's access was both defined and somewhat open-ended.
In August of 2013, they negotiated a Voluntary Services Agreement with the CAS.
On the strength of both of these agreements, the CAS closed its file and withdrew the court application on October 10, 2013. Devon had been in his father's primary care since August 1, 2013.
On October 27, 2013, the mother unilaterally changed the custody regime she agreed to by refusing to return Devon to his father. She also removed him from his school. An emergency order issued on October 31, 2013 to reinstate Devon's primary residence with his father. The mother's decision leads to the motions today.
Positions of the Parties
Positions of the Parties
Both parents claim they have disposed of their historical demons and are now ready to parent effectively and in Devon's best interests.
Neither has truly "disposed" of their histories. The father will always be a recovering substance abuser. Personality patterns leading to anti-social behaviour rarely are disposed of; it becomes a situation of management of these weaknesses. Similarly, one does not simply "dispose" of many mental health deficiencies. Like lifestyle choices, these deficiencies must be consistently managed and controlled. Without an effective system managing one's lifestyle, a recurrence of the deficiencies is likely.
However, it is clear some meaningful change must have occurred; otherwise, the CAS would still be part of the picture.
The logical starting point for assessing the parent's claims and their strengths and weaknesses is the last trial involving an assessment of their rights and Devon's interests. The mother challenged the legitimacy of the January, 2010 apprehension and demanded that Devon be returned to her care and control. In that trial, she alleged her historical circumstances had improved. The position of the CAS was that neither parent had changed much and, in addition to leaving Devon in the care of his grandparents, the CAS demanded that both parents' access be supervised.
This trial lasted five days and ended in June of 2011. Madame Justice Templeton delivered her decision on July 12, 2011. Devon was left in the care of his grandparents. As to access, Justice Templeton's findings regarding the mother were not supportive of her access plan.
Her Honour found that on apprehension, the mother had entered into a relationship with a man having an extensive history of violence. She found that both this man and the mother consistently refused to cooperate with the plan of care fixed by the CAS in Devon's interests. She found that the mother did not take Devon to pre-set medical and counselling appointments. She noted that on apprehension, Devon was filthy and unkempt and had bruising and cuts that were consistent with some level of abuse which was also consistent with the mother's history of failing to protect her other children – one of whom suffered neurological damage while in the mother's care.
Her Honour noted findings in a 2009 Parenting Capacity Assessment that the mother exhibited a "high level of impatience and hostility and demonstrated a quick temper" and that it appeared to the assessor that the mother exhibited a lack of commitment to her children.
The most telling comments in the decision related to the mother's insecure connection with reality. After finding the mother had consistently lied to the assessor, the CAS worker and the court, Her Honour noted:
"[20] K.V.'s lie respecting her educational enrollment….reflects a deeper pathological basis that has been manifest on numerous occasions in the past. Her inability or refusal to tell the truth consistently was addressed in the parenting capacity assessment in 2009".
"[21] It is sadly ironic that K.V.'s inability or unwillingness to speak the truth consistently; her inability or unwillingness to resist the temptation to relate to others as reality a description of how she would like things to be (my emphasis); and, her inability or unwillingness to consistently present herself to others as she truly is have all backfired and have had the opposite consequence to that intended. Because of such behaviour, K.V. cannot be trusted to tell the truth at all times with respect to the whereabouts and safety and security of her son, his development, his care or her overarching long-term commitment to him as his mother."
"[22] K.V. has certainly made efforts to address some of her personal issues but the sincerity of those efforts and the positive Impact those efforts may have had on her personal choices are questionable (my emphasis)."
"[23] There is no doubt in my opinion that until her issues in this regard are resolved by way of therapy (my emphasis), D.M.'s health and safety will be at risk if left alone with his mother for, until that time, she simply cannot be called upon to ensure appropriate disclosure of and demonstration of parental conduct that will always be in her son's best interests."
As a result of her findings, Justice Templeton ordered that all the mother's access to Devon must be supervised.
As to the father, Justice Templeton found that between the apprehension and trial, he saw his son daily and assumed increasing responsibilities for his daily and specialized care. She found that the father "demonstrated the commitment and maturity necessary to ensure an ongoing development of a deep and loving relationship with his son". She found that the father had "contacted and maintained active involvement with the numerous agencies and support networks available to assist him" (for personal issues and Devon's issues). Her Honour accepted the father's evidence that he had not used hard drugs for five years and alcohol for two years.
Justice Templeton gave the father unsupervised access to Devon.
For today's purposes, Justice Templeton's findings constitute a baseline to assess change. Has the mother's connection with reality improved? Has she been sincere in seeking assistance for her personal issues? Has she sought professional help (therapy) to address her issues? Has the father continued an active involvement with agencies and support groups on his own behalf and for Devon? Has he retreated to his former lifestyle?
Analysis
Analysis
I find that the father has continued an active involvement with support agencies for his issues and Devon's.
In the Oxford-Elgin Child and Youth Centre (hereafter OECYC) reports, it is clear that the father recognizes his personal history and the difficulties addressing his issues on an ongoing basis. He has maintained contact with the Psychiatric Survivors Network and his personal physician respecting lifestyle choices. There is no factual evidence supporting the mother's persistent claims that he has regressed and is using hard drugs. Her claims respecting the solidity of his past and present relationships with live in partners are conjecture and unsupported opinion. Had there been any third party evidence, particularly from the CAS, of drug use or problems in his home, I am sure she would have attached it to her materials. In regard to drug use, I note the clean drug screen found at Tab 12(b).
The OECYC materials clearly evidence an ongoing relationship with its counsellor between August of 2011 and December of 2013. This connection was for the purpose of learning how to deal with Devon's issues on a day-to-day basis. In closing, the report states:
"Despite the many challenges Devon has dealt with in his life including multiple attachment interruptions and intrusive medical procedures for his cleft palate, Devon is a well-adjusted articulate bright engaging 6 year old who is extremely creative, articulate and energetic. Similarly, Jody is a motivated and committed parent to Devon who continues to practice his own self-care…. Jody is a strong advocate for Devon and has become a good advocate for himself as well. Jody is self-aware and has good insight into Devon's emotional needs. Jody is able to read Devon's cues and he continues to look for what is emotionally happening to Devon underneath the behaviours. Since Devon has experienced multiple attachment interruptions in his life, he continues to require a lot of support for his emotional needs and as well requires a high level of parenting. Jody's natural parenting abilities make him a good fit for Devon as he provides consistent quality parenting for Devon " (my emphasis).
In addition to his involvement with OECYC, the father enrolled Devon in the "Tyke Talk" program; he worked with the Madame Vanier Institute in a program teaching parenting skills for a behaviourally challenged child; he has maintained an active role and positive relationship with Devon's school, its teachers and professionals; and, he successfully completed the Family Support program through the CAS.
On the evidence provided, I find no change to the father's commitment to Devon identified by Justice Templeton in support of granting him unsupervised access.
The mother has a great deal to say about the father personally. She firmly believes he "pulled the wool over Justice Templeton's eyes" and that she got it all wrong. No facts support this opinion.
She repetitively claims that it was a pre-condition to the custody/access agreement that the father would obtain and give her drug tests and because he has not done so, she demands an inference be drawn that he is still using. I have carefully read the mediated agreement and can find no direct or indirect provision supporting this claim. The mother makes no reference to the drug test at Tab 12(b) which was completed October 29, 2013. Its results certainly belie her claims.
She claims the father refuses to have Devon screened for ADHD which is a screen suggested by her own doctor. No note from her doctor was provided so it is not at all clear the screen was his suggestion. Furthermore, Devon has been seeing professionals since 2010 and if there was any concern about ADHD, it would have been raised long ago.
She generally claims the father did not advise Devon's counsellor about incidents occurring at school with the inference that Devon's treatment has somehow been short-changed as a result. The mother did not tell the court what incidents were withheld with the result that this claim merits no weight.
She is generally dismissive of the custody/access agreement. She hints it is invalid because she did not obtain independent legal advice but does not explain why she failed to do so in the face of the clear written warning in the agreement that both parents were "encouraged to seek independent legal advice". She claims a number of pre-conditions existed that the father has breached including the drug testing (above), a term prohibiting changing Devon's school and a term delineating who was allowed to occupy the father's home. I find no support for these claims in the agreement itself.
Finally, she generally claims the father has misrepresented the severity of Devon's behaviour in school. She appears to claim it is not improving but worsening and he has misrepresented it to accelerate closing Devon's file at OECYC. However, the mother has not identified a single incident from the school, how she learned about it or who told her. She hasn't filed any school reports to back up this claim.
As to her own emotional/mental well-being, the mother broadly alleges at Tab 15, paragraph 9 that:
"I meticulously follow doctors' instructions with respect to health, exercise, nutrition and medication. I am not presently on any medication at all and haven't been for almost two full years with no relapse or any symptoms or incidents at all, and have never felt healthier, happier or more emotionally stable"
This is the extent of her evidence respecting what Justice Templeton referred to as therapy to address her personal issues of which, in my mind, the most focused was her ability to recognize reality.
The mother has not even deemed it important to disclose who her treating mental health physician has been since 2011, diagnoses, who prescribed her medication, what the medication was intended to address. She asks me to blindly adopt her evidence as real in the face of Justice Templeton's crushing comments about her limited grip on reality a mere 30 month ago.
In her evidence, especially that referred to above, I still get the hint that it is not based on anything real but solely on what the mother perceives her reality should be – especially as it relates to the father. Without evidence of treatment or therapy, there is still a significant risk that what she is saying is based on perception, not reality. In the result, I cannot give most of her evidence any weight at all in context of reliability and trustworthiness.
Beyond this difficulty, I have found no evidence that the mother has ever involved herself consistently with any program intended to teach her how to parent a behaviourally challenged child. She has met with counsellors from time to time but on the records, these meeting were without focus. Overall, I find not support for a finding that that the mother has the capacity to effectively parent Devon.
When her materials are considered as a whole, my sense is that the mother does not entirely accept Devon's challenges. She appears to want to lay blame on his circumstances at the father's feet and she then suggests all will be better if she is the one directing Devon's life, not his father. This is an extremely pollyannish view and appears to lack a base in reality.
Lastly, the mother's decision to remove Devon from his father's care and from his school was short-sighted and utterly selfish. Her decision and efforts to explain it also leave me with the sense that her grip on reality is tenuous and, as Justice Templeton found"she simply cannot be called upon to ensure appropriate disclosure of and demonstration of parental conduct that will always be in her son's best interests".
The mother states the relief she wants in alternatives: joint custody and principle residence with her, shared custody on a week-on/week-off basis; or, joint custody with principle residence with the father, ie. – revert to the mediated agreement.
For the reasons above, it is not in Devon's best interests to give the mother any level of parental control or decision-making. Further, I find the mother has abandoned her obligations and agreements under the custody/access agreement and it is not in Devon's best interests to revert back to its custodial terms.
Further, I find the mother's attitude about the father is poisoned and irrational and cannot be reconciled to a level where she can be trusted to cooperate and communicate in Devon's interests. I find her cooperation and communication will be predicated on her skewered sense of reality, not the child's interests. In this regard, neither a joint or shared order is in his best interests.
Considering that the mother has had no apparent training how to deal with Devon's behaviours, I am somewhat reluctant to merely order that the access regime described in the agreement should recommence. However, when the regime was mediated, the father clearly knew she had not been appropriately trained to deal with negative behaviours. In that regard, the access regime described at paragraphs 13, 15, 17, 18 and 19 to 30 will be reinstated. I do not intend to endorse the lengthy access during the summer months described in paragraph 16 until further evidence is tendered respecting her ability to implement the same or similar living and disciplinary routines as exist in the father's home.
For the sake of clarity, I find the custody/access agreement has been abandoned and save as outlined above, its terms shall no longer bind the parties hereto.
The application is adjourned to the trial coordinator to fix the next step at the request of either party.
Decision Information
Motion Argued: April 25, 2014
Decision Released: April 28, 2014
Counsel:
- Nancy Hellyer for the father (Moving Party)
- Karen King, agent for Katherine Orkin for the mother (Responding Party)
Justice M.P. O'Dea