WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.— (7) Order excluding media representatives or prohibiting publication.
The court may make an order:
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
45.— (8) Prohibition: identifying child.
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, or the child's parent or foster parent or a member of the child's family.
45.— (9) Idem: order re adult.
The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
85.— (3) Idem.
A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court Information
Ontario Court of Justice
Between:
Chatham-Kent Children's Services, Applicant,
— AND —
C.T., D.G.G., D.T. Respondents,
Before: Justice Lucy Glenn
Heard on: October 28, 29, 30, November 1, December 16, 18, 2013 and January 23, 2014
Reasons for Judgment released on: April 25, 2014
Counsel
Loree Hodgson-Harris — for the applicant Society
Jeffery Rehner — for the respondent, D.T.
C.T. and D.G.G. — on their own behalf
Judith Pascoe — for the Office of the Children's Lawyer, legal representative for the children, Q. and S.
Kristen Hales — for the Office of the Children's Lawyer, legal representative for L., J. and N.
Reasons for Judgment
Introduction
1This is an application by the Society regarding five children namely: L. born 2002 (age 11), J. born 2005 (age 8), N. born 2006 (age 7), Q. born 2008 (age 5) and S. born 2011 (age 2). This application was commenced on June 13, 2011 at which time the four oldest children were taken into care. They remain in the care of the Society at this time. S. was apprehended at birth and has also remained in care since that date.
2Mr. T. who is the father of the three oldest children was represented by counsel. All of the children were also represented by the OCL. Mr. G. who is the father of the two youngest children and the mother were both unrepresented. Mr. G. did not attend all of the trial nor did he provide any evidence or make submissions at the conclusion of the trial.
Proposed Plans of Each Party
3The Society, the OCL for all of the children along with the father, Mr. T (to the extent that his three oldest children were involved) were in full agreement with the plan for the children. This plan called for:
(a) L. and N. to be placed in a kin home under the supervision of the Society for six months with unsupervised liberal access to Mr. T. and supervised access once per month to the mother.
(b) J. to be made a ward of the Crown with unsupervised access to the father, Mr. T and supervised access once per month to the mother.
(c) Q. and S. to be made Crown wards with no access to their parents (that is the mother and Mr. G.) for the purpose of adoption.
(d) The mother and Mr. G asked that all five of the children be returned to their care so that they could live together in Bedford, Quebec. In the alternative, the mother proposed that the five children be placed in the care of Mr. G.'s aunt E. who also lived in Bedford, Quebec.
4No other plans were placed before the court, although the current family services worker advised that the agency had looked but had not been successful in finding other kin homes for the children other than the kin placements that they found for L. and N.
History Prior to the Apprehension of the Children on June 9, 2011
5History prior to the apprehension of the children on June 9, 2011:
Observations Made by or on Behalf of the Society
6Observations made by or on behalf of the Society:
Voluntary Supports
a. Even though no court proceeding had been commenced before the children were apprehended on June 9, 2011, very early on, the mother was identified as a person who would be best served by having parenting supports. Society workers as well as four different protection support workers started being provided to her on a voluntary basis as early as August of 2005 and this support continued until the time of the apprehension in June of 2011. In addition she received support from a Public Health nurse and the Public Housing social worker. Much evidence was heard from all of these sources at trial about the challenges faced by the mother who largely operated as a single parent. Their evidence can be summarized as follows:
Mother's Cognitive Issues
b. It was obvious to the workers that the mother had problems with intellectual delays and problem solving. Concerns were noted regarding her apparent limited reading abilities and comprehension of time. These limitations translated into concerns regarding how often J. was eating since she had difficulties articulating specific time frames about when he was fed. The public health nurse testified that she was concerned about the mother not being able to read a dropper to measure medication for her child. The support worker who provided services from August of 2005 until April of 2006 noted that the mother was very quiet during their involvement and shared little information about herself. When the worker would model parenting behaviours, the mother never showed the same behaviours. The second protection support worker who worked voluntarily with her between May of 2007 and July of 2007 noted that the mother did not have a strong grasp of information that had already been provided to her in the past and seemed not to understand why the Society was involved with her. The involvement of the third protection worker was intended to last for a three month period however the contract was renewed three more times and involved seventy training sessions which lasted from August of 2007 until September of 2008. At the end of this period, services continued on until June of 2009. It was noted by this third protection Support Worker that the mother was marginally able to meet her children's needs with this support of the Society. It was noted that the mother was not able to see the usefulness of the parenting suggestions and she continued to struggle with managing the challenging behaviours of her children. She would often engage in power struggles with the children and reported feeling frustrated and overwhelmed in her parenting. A further protection worker who worked with the mother from May 4, 2011 until early July of 2011 observed that the mother was not receptive to suggestions and resisted engaging in parenting training. It was noted by the Public Housing social worker that the mother appeared to have difficulty reading, could not adhere to her budget and did not appear to understand the material in this regard that was presented to her. In spite of this she declined any recommendation that she should become involved in a trustee program. Further, she seemed unable to follow a chore list that was provide to her in order to help her with a daily routine and she also seemed incapable of making the necessary arrangements related to basic maintenance of her housing unit.
State of the Mother's Home
c. It was observed that the mother had chronic problems with her home being cluttered, dirty and unsafe. At one point there were three cats and also an inadequately maintained cat litter box in the area where J. would be able to crawl. It was not uncommon to observe dishes on the floor with dried food on them. On an occasion in November of 2006, when her home was particularly deplorable, the children went to live with the maternal grandmother where they remained for almost two years until approximately August of 2008.
Lack of Parenting Skills and Neglect
d. The mother lacked parenting skills and appropriate discipline techniques. She failed to recognize hazards to the children. There were concerns about lack of supervision, not recognizing when her infant was in discomfort or hungry or having age appropriate expectations for her children. She failed at times to comfort her children when appropriate. She was also observed by one of these witnesses to fall asleep while providing care for her three children and becoming preoccupied with her cell phone to the exclusion of providing proper supervision of them. A Society worker who was involved with the family at the time that the children were apprehended testified about her concern that Q., who would have been about age three at the time, was observed to have a flat effect and would sit and stare at her during her visits. When that worker suggested that the mother could take the children to the Early Years programs or send them to camp, the mother said "no" and claimed that the children just wanted to stay home.
Birth Control
e. The mother was not open to discussing or implementing birth control. At a time when she was overburdened and having difficulty coping as a single parent raising her two oldest children, she indicated that she was not interested in birth control as Mr. T. was Catholic and they wanted to have five children.
Lack of Parental Support from Either of the Fathers
f. Neither Mr. T. nor Mr. G. were of any significant support or assistance to the mother in raising her children. Early on, it appeared that Mr. T. only attended at the mother's home on weekends and was typically of very little help with parenting or the maintenance of the home. When the mother became pregnant with their third child, she told the protection support worker that Mr. T. was not happy about the pregnancy. During the period 2005 to 2008 she noted that the mother had claimed that Mr. T. was quick to anger and that he had thrown the child L. while being angry, which was later denied by him. In spite of this, the worker testified that she had little or no contact with Mr. T. as he was not really involved much with the children at the time. Later, when Mr. T. moved in with the mother he was never an active participant with the protection support worker although he was always invited to participate. Likewise, when Mr. G. was present on a couple of occasions during parenting training sessions, he also did not engage in the process. Closer to the time that the children were apprehended, the mother tearfully told the worker that she did not know how she would cope with the birth of the youngest child (S.).
Transience and Poor Financial Management
g. Throughout the time she received the services of protection support workers, observations were made as to the multiple residential moves made by the mother and as to her poor financial planning which left her unable to financially support her family adequately.
Physical Violence
h. In December of 2008, it was observed that both of L.'s eyes were swollen and discharging a white substance. At that time she reported that Mr. G.'s daughter, C.A. had hit her in the nose with a shoe and that Mr. G. also hit her on the arms. Further CA. (Mr. G.'s daughter) reported that the mother hit J. on the hand. In October of 2008, both the mother and Mr. G. signed a voluntary agreement that there would be no physical violence used in their home and that they would continue to allow the Society into their home on a regular basis.
Grandmother's Involvement
7In November of 2006, with the support of the Society, the three oldest children went to reside with the maternal grandmother because of the mother's inability to provide proper supervision for her children and the poor condition of her home. There was no indication at this time that the grandmother employed inappropriate discipline with the children. They were then transitioned back into the care of the mother in the summer of 2008. The child Q. was also born in August of 2008. Therefore by August of 2008 the mother ended up with the care of all four children. By September of 2009, the mother and these four children were living with the maternal grandmother and this arrangement continued until September of 2010 when she moved out of the grandmother's home and in with Mr. G. and his daughter.
Mother's Relationship with Mr. G. Prior to the Apprehension
8Mr. G. is the father of the two youngest children, Q. and S.. The mother and Mr. G. were apparently living together in February of 2008. At that time the children were living with the maternal grandmother. They continued to live together until April of 2009. Even after that, Mr. G and his daughter, C.A. continued to have dinner every night at the home of the mother and her three oldest children and would sometimes spend the night there. By July of 2009, the mother reported that Mr. G. threw a food processor across the room and as a result, he was no longer around. She also reported that he would come to her home and eat the food but not contribute financially. While she reported that they were not in a relationship in October of 2009, by February of 2010, she reported to the worker that he was with her and the children frequently. By August of 2010, they had moved in together once again even though the mother clearly had found it stressful in the past to live with Mr. G. and his daughter C.A.. By December 21, 2010, the mother was reporting to the worker that Mr. G. had not been helping around the house at all. In January and February of 2011, the mother reported that he had been physically and verbally aggressive with her and the children and that he had mood swings and black-outs. She also disclosed that he would be rough with the children, especially L. when he was angry, though he never left marks on them and that she did not leave the children alone with him because of her concern about his anger and risk of "black-outs". She also claimed that he had fractured her wrist a while ago. When asked about this, Mr. G. reported that he had been playing with L. and had gone to kick her when the mother intervened and was apparently kicked instead. She also complained that he called her "lazy" and that he was spending her money. The mother and Mr. G. agreed that their relationship was not good because they had been arguing a lot and the mother reported that she did not want to be in a relationship with him until they were able to attend counselling together. In response the worker referred the mother to the necessary counselling agency. Apparently they separated in January of 2011 but by the time the children were apprehended in June of 2011, they were again living together and according to the testimony of the mother.
Complaints by Day Care Workers
9The observations of the daycare workers which were presented to the court were made roughly between 2005 and 2011. One must acknowledge that between November of 2006 and the summer of 2008, the children, L., J. and N. were in the fulltime care of the maternal grandmother. Therefore some of the following observations may have related to the care provided by the grandmother. It is noted that at the time the children were apprehended in June of 2011, the grandmother was living with the mother and providing parenting assistance to her. However, any daycare observations of Q. would clearly have been at a time when the mother was in a sole caregiving role to that child.
10The evidence provided by two workers from the day care facility that the four oldest children attended was revealing. Both of them testified that all of the children were very quiet, withdrawn and shy. When L. started going to daycare at age two and one-half, she appeared to be dressed appropriately but there were times when they needed to wash her clothes because she would arrive dirty to school.
11As the next three children started to attend daycare, each at age eighteen months of age, their home care came more and more into question. At times J. was observed to come to school in clothing that was the wrong size and weather inappropriate. Sometimes he would arrive with a diaper that was heavily soiled and appeared not to be changed from the night before and once or twice per month they would need to also give him a bath. The evidence was that daycare workers normally never had to give children in their care baths. He would also be noticeably hungry on his arrival at school.
12These types of observations were also made of Nathanial and Q. as they started up at daycare. The issues of hunger and a dirtiness which was described as "stomach turning" were persistent throughout the time these children attended daycare. Specifically also, observations were made about them arriving with dirty hands, feet and faces, smelling heavily of urine. With Q., they always did a daily extra wipe down.
13In her testimony, the mother claimed that the children were clean when they went to daycare but filthy when they came home. I do not accept her evidence in this regard. The daycare workers gave detailed evidence about the condition of the children on arrival at school. They had nothing to gain by giving this evidence and it is inconceivable that the children would get in this condition after arriving at daycare.
14A third daycare worker who had Q. in her class between September of 2010 until April of 2011, not only confirmed the testimony as it related to Q. regarding his being sent to school filthy, but also testified to seeing concerning bruises on him on three different occasions. On one occasion she observed a significant bruise on his hip. On November 4 and November 23, 2010, he came to school with significant bruising on the left forehead and eye area, which she documented with photos. On each occasion, the mother gave the same explanation to the daycare worker that Q. had fallen and hit himself on a chair. This explanation became even more unbelievable when, in direct contradiction to these earlier explanations, the mother testified that the bruises happened at school and not at home and that she had been the one to go to the daycare facility to ask them what happened.
15One daycare worker commented about how Q. never showed emotion and one wouldn't know if he was happy or sad. The first time she had seen him excited and happy was after he was taken into the care of the Society and came to school with a brand new pair of shoes. After this point, there was a drastic change in his behaviour. His clothes were clean and they fit him and he showed emotion and played with the other children.
Complaints by the School
16Some of the evidence led by the Society pertained to C.A., the child of Mr. G. who was in his custody, both of whom were living in the home of the mother and her children at the relevant time or spending a great deal of time in that home. C.A. later became the subject of another protection application other than this one.
17C.A.'s 2009/2010 teacher as well as her principal testified that she came to school every day in dirty, ill-fitting clothing and with a body odour that was so strong that it made it hard for other people to be near her. About once per week the principal would call for her to be picked up and taken home to be bathed. She appeared emotionally disturbed and clingy towards the teacher and frequently would shake and cry when she was sent to the washroom to clean herself. The principal testified to the numerous occasions that this child would soil herself at school, sometimes once per week and the emotional distress that would cause her. Even after she tried to engage the father, Mr. G. to assist his child there was no change that resulted in that child's behaviors. On one occasion, when this child became ill and the mother came to pick her up at school, C.A. became visibly upset as the mother was seen entering the school and told the principal that she didn't like the mother or her house because she got yelled at, got in trouble and had to stand in the corner. The mother's response on arrival at the school was that she appeared upset that she had had to come to pick up this sick child during her busy day.
18The following school year, 2010/2011 a different teacher had C.A. and L. in a split grade 3/4 class. L. was one year behind C.A.. At this point the two children were from the same home, and while there were concerns about C.A., there weren't the same concerns about L.. On a pizza day L. would have pizza money and C.A. wouldn't. L. (who exhibited other concerning behaviours) was clean, but C.A. wasn't. In her evidence, the mother claimed that Mr. G.'s daughter, C.A. was a trouble maker in their home although as time went on she could see some improvements. Specifically regarding the cleanliness issues, the mother claimed that this child had a bath every morning and had clean clothes every day, but that she would soil herself at school. This does not appear to be a credible explanation for what appeared to be a chronic problem.
19The principal testified as to the change in the children between pre and post apprehension. Whereas L. had been coming to school at age eight wearing makeup and high heels, these practices now stopped. She also stopped stealing sparkly items as she once had done. She now made an effort to talk to others and would make a point of coming to the principal and show off her new clothes and tell her she was happy.
20Prior to apprehension, there were problems with J. having enough food for lunch and the school would supplement this meal. Also his clothing was too big and he would be tripping over his pants. His clothes were dirty and he would chew on his sleeve and wear the same outfit on consecutive days. Both of J. and N. exhibited concerning behaviours including running around and having hands on other children.
21These behaviours abated somewhat after apprehension and J., whose behaviours were more pronounced, could now focus enough to complete a sentence or a thought. Both of these boys were now brighter and happier and would come to the principal to show off their new clothes. Further, their lunches were full and plenty. At trial, the mother claimed that J. only acted up because of his teachers and that he did not act like that at home.
22After the apprehension of C.A. from her father's care, she ceased soiling herself, and came to school in nice clothes that were clean and that fit her. She was happier, began to make friends and interact more with other children.
Events Leading Up to the Apprehension
23On April 26, 2011, the Society commenced an investigation after receiving a report from L.'s teacher that she had arrived at school with a bandage over her eye. It turned out that the bandage covered a one centimeter cut. Both she and the mother were interviewed by police and the Society as to what had happened.
24In her statement to police L. claimed that the day before, the mother had made her stand in the corner because she failed to make her bed and that when her mother saw that she was not facing the corner, she grabbed her by the scruff of the neck and slammed her head into the corner, striking a light switch and causing the cut.
The mother in her statement to police at first claimed that the child refused to stand in the correct corner and that when the mother tried to move her to the correct one, the child sat down. The mother claimed that when she tried to pull L. to her feet this must have been when the child hit her head on the light switch because less than five minutes later, the child complained that she was bleeding. It was then that the mother took the child to the bathroom to deal with the injury. After continued questioning by the police who strongly suggested that given the nature of the cut, it did not appear that the injury could have been sustained as described by the mother, she then acknowledged that she pushed her daughter into the corner. At trial, the mother changed her story again. In her evidence in chief, she claimed that L. had been jumping up and down in the corner and implied that she had injured herself while doing so. She went on to testify that after she had finished her time in the corner, she left and went to another room and then came running out to show her the injury. On cross examination, she could not explain the different explanations she had given for the injury and would not admit that she had been inconsistent. Once again, I find that the mother's explanation of this event is not credible.
25As a result of this investigation the children were apprehended but were soon after returned to the mother pursuant to a voluntary service agreement which required that the mother and the children reside with the maternal grandmother. The expectation was that the grandmother would be present when the mother was with the children.
26Less than two months later, on June 9, 2011 L. along with her mother and maternal grandmother were in attendance at the office of her Nurse Practitioner (hereinafter referred to as her NP). According to the NP, during the course of this visit, the maternal grandmother stood up and walked over to the chair where L. was sitting and angrily and forcefully slapped her on the forearm and told her to pay attention to the NP. The child had not been misbehaving and had been very quiet up until that point. L. began to tear up and the NP told the maternal grandmother that hitting was never acceptable and that the appointment was over. As the child was walking out of the building somewhat behind her mother and grandmother she told the NP that her grandmother "slaps her a lot for nothing on the arms."
27As a result of this incident, all of the children were apprehended. At the time of the apprehension, L. told the worker that Mr. G. would grab her by the back of the neck about three times per week and would stick his thumb into a sore part of her neck.
28After the children were apprehended the mother told the worker that the grandmother didn't hit L. and that the NP had lied. On another occasion as well as at trial, she claimed that the maternal grandmother had only tapped the child on her hand and that the NP had been looking at her computer and could not have seen what really happened. I had the opportunity to assess the credibility of the NP who testified at trial. I found her evidence to be detailed and credible. She was present with the mother, grandmother and child in an examination room when the incident occurred and it was clear to me that she had witnessed the incident that she described.
Mother's Relationship with Mr. G After the Apprehension
29According to the mother's testimony, she and Mr. G. have remained together as a couple since the date of apprehension, except for a forced separation in the fall of 2013 when he obtained employment in Quebec. In spite of this testimony, in August of 2011, the mother told her worker that she didn't know what Mr. G was to her anymore and that he was supposed to be living with his father but that his father was never home so Mr. G stayed with his ex-wife. In September of 2011, Mr. G told his worker that he and the mother were just friends. In January of 2012, the mother told her worker that while Mr. G was living at her house, she denied being in a relationship with him and said they were just friends. Clearly their relationship has exhibited periods of instability.
Previous Protection Findings Regarding Mr. G.
30On April 19, 2012 findings of fact and a protection disposition was made regarding Mr. G.'s child C.A. by Justice Fuerth pursuant to an agreed statement of facts signed by Mr. G. and the mother of that child. At that time C.A. was placed in the custody of a third party. The factual underpinning for the protection finding which was relevant to Mr. G was as follows:
a. The father was not meeting the basic needs of the child which included the child's ongoing hygiene issues.
b. The father lacked the parenting abilities to keep the child safe.
c. The father had not demonstrated an ability to maintain a stable, clean home environment on an ongoing basis.
d. The father has an unstable and high conflict relationship with the mother (that is, the mother in our case) which the child has been inappropriately exposed to.
e. C.A. has attended multiple schools since Junior Kindergarten.
f. The father has not been open and honest regarding his ongoing relationship with the mother, (that is, the mother in our case).
g. The father and the mother of C.A. have demonstrated a long history of parenting difficulties and deficiencies.
Parental Capacity Assessment of the Mother
31Dr. William G. Ross, C. Psych. assessed the mother's parenting capacity both in January of 2007 and also in October of 2011. At the time of the first assessment, the three oldest children who were then alive had been moved to live with their maternal grandmother. Dr. Ross identified that the mother scored in the Borderline range of overall ability and that she displayed a significant verbal learning disability that would impact on her capacity to retain information. Her basic academic readiness was measured as being at a grade 3-4 level and her basic reading skills were quite limited. Dr. Ross opined that it was unlikely that the mother would be able to independently meet the needs of her three children on a consistent basis, and considered it to be relevant that she appeared not to recognize the concerns expressed by the Society, particularly those related to neglect. He also cautioned that she would have difficulty accurately identifying the needs of the children and, even if she were able to do so, it was questionable as to whether she would be able to follow the appropriate steps to ascertain that they would be adequately dealt with. He also identified that she appeared to have psychological difficulties that would impact on her capacity to parent effectively in the long term and suggested that she consult a psychiatrist to see if she might benefit from the introduction of psychotropic medication. In addition, he also urged that she receive continued parenting education but cautioned that if the children were to be returned to her care, monitoring of her parental functioning would be required in the relatively long-term.
32By the time Dr. Ross completed his follow-up assessment in October of 2011, the children had not only since been returned to the care of the mother, but all five of them had then been apprehended and place in the care of the Society. He reconfirmed the significant cognitive delays that the mother exhibited and also commented again on his concerns about her psychological functioning and the fact that she was easily agitated and would demonstrate poor judgment such that she would have difficulty learning from past mistakes. He also identified that when she was presented with information about why her children had been apprehended, she tended not to understand or would put up a defensive barrier that decreased the probability of her altering her pattern of behaviour. He stated that she was more overwhelmed now than she was in 2007 and that while she loved and cared for her children, her limited cognitive capability was a significant impediment to being able to meeting the developmental needs of her five children. He concluded that she would not be able to function autonomously raising her three children, let alone the five children that she now had.
Parental Assessment of Mr. T. (the Father of the Three Oldest Children)
33Dr. Ross also assessed the parenting ability of the father of the three oldest children, Mr. T. and his wife Mrs. T. While he did not rule out a placement of the children with them, it was clear that such a plan would present obvious challenges given that Mr. and Mrs. T. already had four children in their household. In the end, they have agreed with the Society plan as it relates to these children, and further discussion regarding the merits of a placement with them is not necessary here. I would only point out that Dr. Ross acknowledged that the anger issues presented by Mr. T. in the past had the potential to be a problem. However he recognized that he appeared to have made progress in this regard and that his wife had been of assistance with this. Specifically, he testified that he had no difficulty with the notion that Mr. T. would have ongoing access with his three children.
Parental Assessment of Mr. G. (the Father of the Two Youngest Children)
34Dr. Jay McGrory assessed the father, Mr. G. in January of 2012. His report spoke to the advisability of Mr. G. regaining the care not only of the two youngest children in this proceeding, but also the care of his older daughter C.A., who is not the subject of this proceeding. Dr. McGrory concluded that this father had significant cognitive limitations and that his overall learning skills fell below 96 percent of the population. It was his opinion that this resulted in him tending to be concrete, having weak problem solving skills, exhibiting poor judgment and failing to benefit from experiences. Dr. McGrory also identified that it was apparent that his parenting skills were limited and lacking in sophistication and that he appeared not to be aware of basic elements of stimulation, nurturance and developmental needs. He also noted that this father was not aware of basic developmental milestones and generally appeared to be overwhelmed in attempting to address the needs of his children. He concluded that he did not have the requisite skills to meet the needs of his two younger children.
Society Involvement with the Parents After Apprehension
35It is noteworthy that after the children were apprehended the mother frequently complained about the care her children were receiving (regarding cleanliness, clothing, marks, bruises, physical health, hygiene) while they were in care. However, the Society could not verify any of her claims that they were being neglected or abused. Although she apparently engaged in some personal counselling, she claimed that this did not help her and did not introduce any evidence at trial regarding any benefit to her in engaging in this process. Further, with the exception of her involvement at the Women's center, she would not provide her consent for her worker to contact her other service providers. On one occasion she refused to provide the Society with her new address, and just before the trial started, she refused the Society entry to her Apartment building in order to be served with court documents. Although she claimed that she wanted to attend a specific parenting program, it was not open to her because she did not have the children in her care. It would appear that much of her engagement with the Society was confrontational and negative in nature. In both August of 2011 and February of 2012, it was observed by the worker that the mother had two dogs and three cats living in her home.
36Mr. G. also failed to maintain contact with the Society and did not provide updated contact information. At times it appeared he was living with the mother, but at other times, from the vague comments of the mother, it appeared that they we not cohabiting. He was not consistent in his access visits with his children, Q. and S. and by the start of the trial he was required by the Supervised Access Center to provide confirmation of his attendance by 3:00 P.M. on the day before each visit because of the frequency of missed visits.
37The mother and Mr. G.'s failure to communicate with the Society was in evidence when they only informed the Society on the first day of trial that they had permanently moved to Quebec a number of weeks previously and that their plan was that all five children would be placed with them at that location.
38It would appear that although Mr. T. has had some issues in the past with anger and aggressive behaviours, he has stabilized substantially in recent years, especially with the support of his current partner. He and his partner now have four children in their home. One of their children, a teenage daughter, had significant behavioural issues. Originally they wished to have Mr. T.'s three children, L., J. and N. in their care, but they ultimately realized that they were unable to care for them due to the struggles they were having with their other children. Mr. T. now supports the plan of the Society. He and the Society entered into a partial Agreed Statement of Facts. This document was not signed by the mother, although very little of it appears to deal with issues related to the mother.
The Children
39Each of the children in this case are unique.
a. L. is diagnosed with a Mild Intellectual Disability and a broad based language delay. She is in a regular classroom at this time with the help of a Resource Assistant.
b. J. clearly demonstrated significant behavioural difficulties immediately after his apprehension and has been in nine placements since his apprehension as a result of his behaviours. For about ten months he was placed at K[…] in St. Agatha where he could be supervised and receive counselling. It appears that he has a learning disability and he currently has an Education Assistant at school. He has also been prescribed medication in relation to his behaviours since shortly after he came into care and has been taking Respiridol twice a day since August of 2013. He has also been provided a number of services including for his language and speech delays, play therapy and programs to increase his social skills.
c. N. is a very busy child who presented challenges to his initial foster parents. He has been in the same placement now since August of 2012. Although, soon after he was apprehended, he was observed to have challenging behaviours, in November of 2012 he was assessed as having cognitive skills that fell within the normal range. He has been prescribed medication for ADHD since November of 2012.
d. Q. does not have any significant behavioural concerns and is a happy little boy. He is very close to his younger sister S. with whom he is placed. Although he has some mild delays, he has been receiving services for them while he has been in care. Currently he is doing well in Senior Kindergarten and there is nothing that would significantly impair his adoptability.
e. S. is a happy two year old. She has recently been assessed by a speech pathologist and achieved appropriate scores in this regard. There is nothing that would impair her adoptability.
Current Access Arrangements
40The Society introduced evidence from three access supervisors which, in my view was largely a waste of time. I say this since pages of affidavit evidence were introduced which mundanely recited the details of many visits. On too many occasions highly negative conclusions were drawn by supervisors based on minimal or trivial observations. Not only was this unfair but I must say that on reading many of the observations I would not have come close to drawing the same conclusions. In some cases, their conclusions represented inadmissible unqualified opinion evidence. In addition, I am not at all sure that drawing conclusions based on observations made during a supervised access center visit are a reliable indication of parenting ability, especially when multiple children who are not in a parent's care (as is the case here) are thrown together for a parental visit in a setting where other families are also having visits at the same time. Not surprisingly many of the supervisor's complaints centered on the mother not being able to divide her time between her five children or supervise them effectively. It seems to me that unless there is a significant incident that takes place during a supervised access visit, this type of evidence is usually unhelpful.
41Currently L., Q., J. and N. visit with their mother at the Supervised Access Centre for an hour, twice per week. On one of the visits each week, the children see not only their mother but each other. S., who was born shortly after the apprehension of the older four children has access with her mother five days per week. The mother has continued her visits with these children faithfully, even though she claimed (unconvincingly) that somehow she was commuting back and forth to Quebec each week so she could continue to live with Mr. G.
42Although Mr. G.'s attendance at visits with Q. and S. was relatively regular initially, since about April of 2012, it fell of dramatically. By the start of trial he had almost entirely stopped attending access visits with these children, perhaps because he had moved to Quebec. Since he did not attend the last part of the trial nor did he give evidence at trial, the precise reasons for his failure to go to access visits with his two children was not disclosed.
43At the time that the children were apprehended in June of 2011, Mr. T., the father of the three oldest children had not seen his children since 2008. Access between Mr. T. and L. and N. has progressed to the point that they now visit with him unsupervised on Sunday afternoons for four or five hours. J. also has visits with him unsupervised on Saturday afternoons for four hours. For a period of time, Mr. T. also provided backup support to J.'s foster mother by caring for J. before and after school. J. speaks positively about his relationship with his father and siblings, however does not talk about his relationship with his mother.
44Mr. T. would like to be able to build up his access to L. and N. to alternate weekend access. At the time of trial, he had not had overnight access to these children yet because of the limitations of his accommodation. However he had recently moved to larger premises and hoped to begin some overnight visits before long. He testified that he was currently satisfied with the access he was getting with J.
Finding of Protection
45Finding of protection:
46On reviewing the evidence and the facts of this case, I find that the children are in need of protection as per section 37 (2) (b) (i) & (ii) and (g) of the CFSA.
47In articulating the factual underpinning for the finding of protection, I recognize that Mr. T. signed a partial statement of agreed facts which was labeled exhibit 26 at the time of trial. The important facts that were acknowledged have largely been woven into the text of this decision. I will not therefore reproduce exhibit 26 at this time. Rather, after canvassing all of the evidence I will summarize the factual underpinnings for the finding of protection as set out in the paragraph below.
Factual Underpinning for the Findings of Protection
48Factual underpinning for the findings of protection:
(a) The mother, who had been the primary parental caregiver for the children has cognitive delays and has been overwhelmed by the care of her five children. The Society has provided parental training and support services to her for almost six years up until the point that her children were apprehended. In spite of this, the mother did not exhibit many gains and often was resistant or unable to making changes. Even though it was apparent that she was having difficulty coping as a single parent, she was not open to using birth control and continued to have five children.
(b) During the six years that the Society was involved with the mother before the apprehension of her children, she made multiple residential moves and demonstrated poor financial management which left her unable to financially support her family adequately.
(c) The mother had chronic problems in maintaining a safe and clean home and her children often attended school in a deplorable state of filth and neglect.
(d) The mother used physical discipline which resulted in an injury to L.. In addition, Q. was observed to have significant unexplained bruises while in the care of the mother.
(e) Neither of the two fathers of the children provided any degree of assistance or support in caring for their children prior to their apprehension. At the time of apprehension in June of 2011, Mr. T. (the father of the three oldest children) had not had access with his three children since December of 2008. Once the mother and Mr. G (the father of the two youngest children) became involved together, their relationship was marked by relationship instability, conflict and abuse to which the children were exposed.
(f) For a period of time Mr. G. and his daughter, C.A. lived with the mother and the four oldest children in this case. On April 19, 2012, Justice Fuerth made the following findings of fact in a protection proceeding regarding Mr. G in relation to C.A. which are adopted here:
(i) The father was not meeting the basic needs of the child which included the child's ongoing hygiene issues.
(ii) The father lacked the parenting abilities to keep the child safe.
(iii) The father did not demonstrate any ability to maintain a stable, clean home environment on an ongoing basis.
(iv) The father has an unstable and high conflict relationship with the mother (that is the mother in our case ) which the child has been inappropriately exposed to.
(v) The father (and mother of C.A.) have demonstrated a long history of parenting difficulties and deficiencies.
(g) The parental capacity assessment of the mother by Dr. Ross concluded that the mother would be overwhelmed and unable to function autonomously in raising her five children. The mother proposed a plan of care whereby Mr. G. would be a co-parent with her in raising her five children. However, the parental assessment of Mr. G. which was completed in 2012 concluded that he did not have the requisite skills to meet the needs of his two children.
(h) The mother and Mr. G. do not have the ability either on their own or together to parent any of these children.
(i) The mother and Mr. G have never had counselling as a couple, even though their relationship had been unstable and conflicted for over eight years.
(j) Mr. T. appeared to have some issues in the past with anger and aggressive behaviours, which have stabilized substantially in recent years, especially with the support of his current partner. Although he originally put forward a plan to have his three children placed in the care of himself and his spouse, he has recognized the difficulty that this would present given that they already have four children in their care, one of whom has significant behavioural issues.
(k) J. has very significant behavioural issues. During the last two and one-half years that he has been in care he has been in nine different placements because of these behaviours. He, in particular will require the talents of a sophisticated parent as he moves forward through his childhood.
The Society Plan for J., as Endorsed by Mr. T. and the OCL
49The Society's plan for J. is that he would be made a Crown ward with access to his parents. Given the number of placements that J. has broken down since being brought into care, there is skepticism as to his adoptability at this time. The Society suggested that access between J. and Mr. T. should be liberal in nature, but J.'s behaviours would have to be monitored to determine the extent to which it might be expanded. When it came to access visits between the mother and J., however they relied on J.'s lack of enthusiasm for visits with her and his need to develop a sense of permanency in his placement as a Crown ward. Based on these factors they suggested that the mother's access be reduced to one visit per month.
Society's Plan for L. and N. as Endorsed by Mr. T. and the OCL
50The Society proposed that the children be placed in the care of the paternal aunt and uncle under supervision. For some time now both L. and N. have been having extended access at their home. They currently also have their own four children at home and are willing to have these two additional children become part of their family. The aunt testified that they fit in well and that they are treated like siblings by her other four children. The aunt works full time and her husband is a stay-at-home dad. Further, she and her husband get along well with her brother, Mr. T. (the father of L. and N.) and his wife who they look to as alternative caregivers for their own four children from time to time.
51Regarding access to these two children, there is already considerable cooperation between the parental aunt and uncle and Mr. T. and his wife and it was suggested that they would be able to work out an access regime for these two children with ease. There has been no issues regarding access between Mr. T. and these two children and the Society's intention is that access would continue on a liberal basis. Also the paternal aunt and uncle are agreeable to facilitating access between L. and N. and their brother, J.. This plan was supported by their father Mr. T. along with the OCL who represented these three children. The Society expects that access arrangements pertaining to L. and N. would largely be arranged cooperatively between Mr. T. and his sister, with the Society being kept informed about these arrangements.
52In contrast to the access that Mr. T would be getting, the Society proposed that the mother would only get one supervised visit per month to each of L. and N.. The reason for this is that the children would be living about an hour away from Chatham if they were placed with the paternal aunt and uncle. The aunt and uncle are not prepared to supervise the mother's visits and therefore they would be required to drive the children to access visits which would take place at the Supervised Access Center in Chatham. They have four other children to care for with many schedules to be juggled which would make multiple trips to Chatham difficult not to mention expensive. In addition, there are concerns that the children should be given a chance to settle into their new home and develop a sense of permanency.
Society's Plan for Q. and S.
53It is noted that Mr. T was not involved with these two children and that they were not represented by the OCL. The Society testified that they had looked for kin for a possible placement for these two youngest children but were not successful. People that the mother and Mr. G. suggested might be interested did not materialize. The Society proposed that these two children be made Crown wards, and that given their age and the fact that they were highly adoptable, there would be no access to either the mother or Mr. G. They did state, however that they would be willing to explore with an adoptive family, the possibility of facilitating ongoing contact between these two children and their siblings.
The Plan of Mr. G. and the Mother
54It is noteworthy that by the end of the trial, Mr. G. had ceased attending the trial. The mother testified that he was working in Quebec and it fell to her to put forward "their" plan for the care of the five children. Given the volatility of their relationship, I have some concern that they were still in a relationship and also had some doubts that her evidence could be relied on to represent the wishes of Mr. G. Further, as can be seen below, the plan has numerous gaps and inconsistencies.
55The mother testified that Mr. G. had moved to Bedford, Quebec in the summer of 2013 and that she had moved there in September of 2013. The fact that they had indeed made this move was not made known to the society until the start of trial on October 28, 2013. She claimed that they moved to Bedford because Mr. G obtained a job as fork lift driver. She did not know the name of his employer. She testified that Mr. G. had many family members living in that area who could act as support people if the children were placed in their care. However she could not name any of them. If she was not successful in gaining the return of the five children to her care, she wanted them placed in the care of Mr. G.'s aunt E.. She also proposed that this lady would provide daycare services for the children while she (the mother) was working if the children were placed with the parents. However, she did not know Aunt E.'s last name. Apparently this woman had never had children of her own. There was no indication that she had even ever met the children or been informed about their special needs. Further she did not come forward to give evidence at trial nor had she ever made contact with the Society. It also appeared that the mother had not proposed her to the Society as a kin placement before mentioning her name at trial from the witness stand.
56The mother claimed that they had made contact with the local Quebec child protection agency in an effort to facilitate the return of her five children to their home in Bedford and that not only had their home been approved, but that aunt E. was approved as a kin placement. However, she could not remember the name of the agency or the worker who had provided this approval. It is noteworthy that the family service worker on this file testified that she had communicated with the child protection agency that would have had Bedford, Quebec in its jurisdiction and received no confirmation that they had made any contact with the mother or Mr. G.
57The mother at first claimed that she and Mr. G. owned their own home which consisted of a three bedroom unit. She then went on to say that it had four apartments in it and that they were almost finished paying for it. She also indicated that aunt E. lived in one of the units. Her testimony then changed when she said that they were renting-to-own and that the landlord still owned the property for another few months. She did not explain how it was that they could have a four-unit housing unit fully paid off in a matter of months, especially given that the indications that neither she nor Mr. G. appeared to have significant financial means.
58The mother then claimed that her source of income was from her work in a food factory, although she did not know the name of her employer. She also claimed that she worked there for three weeks after she moved to Bedford, Quebec, and then altered her evidence to say that she only worked there on Fridays. Next she acknowledged on cross-examination that she was on Ontario Works, even though she now lived in Quebec and that she was actually not working right now and that she didn't know when she last worked there, but it had been a while.
59Regarding the behaviours of J., the mother claimed that he had been really good while he was at home before the apprehension, but recognized that there are difficulties in his interactions in particular with N. currently. However she maintained that if the children came home to her and Mr. G. their behaviour would go back to the way it was before the apprehension. She did not provide any indication that she had contacted service providers for the special needs of her children, nor had she made contact with the school that they might be attending in Quebec.
60The mother testified that if the Society's plan was adopted by the court, she would be living in Quebec and that her current access to the three oldest children would have to be altered. Her suggestion was that it should take place every other week, given that the round trip between Chatham and Bedford took at least 20 hours.
Disposition
61Given the findings of fact that I have established above, it is inconceivable that I could place the five children or any of them with the mother and Mr. G. (either alone or together) even with the help of a supervision order. I have considered the best interests of the children under s. 37 (3) of the CFSA, however, the conclusion that the children would not be safe in their care must be given priority over the other "best interests" considerations that might support a return of the children to the mother and/or Mr. G.
62Even if this were not the case, I would not send any of the children off to Quebec to be placed with them when the plan proposed by the mother is so clearly inadequate. Not only is it unworkable because it is not thought out but the children would be placed in a totally unknown circumstance beyond the reach of the workers and support people here who are knowledgeable about the family. It is also not at all clear to me that Mr. G. is on side with the plan. The relationship between Mr. G and the mother was unstable and filled with conflict when they lived in our jurisdiction and there is no reason to believe that that situation doesn't continue. Mr. G. did not even attend the last part of the trial and his feelings on the matter are unknown.
63Given this conclusion and the position of the other parties, it would appear that the plan that has been proposed by the Society regarding the placement of the children is the obvious choice. The children have all been in care more than two and one-half years but except for L. and N., there is no viable placement with parents or kin. Under s. 70 of the CFSA the remaining children can't remain in the care of the Society.
64As such, order to go that:
Orders
65The children J., Q. and S. will be made Crown wards.
66L. and N. will be placed in the care of the paternal aunt and uncle for a period of six months subject to the supervision of the society and subject to the terms and conditions as follows:
(i) The society will be at liberty to make announced and unannounced visits at the home of the paternal aunt and her husband.
(ii) The society will be at liberty to meet with and interview the children alone.
(iii) The paternal aunt and uncle will not use corporal punishment.
(iv) The paternal aunt and uncle will provide two weeks' notice of any change in their address.
(v) The paternal aunt and uncle will follow the requirements of the order of this court regarding access between the children L. and N. their parents.
Access to L. and N.
67Regarding the children L. and N., they clearly have a beneficial and meaningful relationship with their father, Mr. T., but it is less clear the extent to which this might be the case with their mother. Once again the father's access has been unsupervised for some time now, however the mother's has remained fully supervised. The reality is that they will be living approximately an hour away from Chatham, and the mother does not drive. Her access would need to continue to need to be supervised, and the only way her visits could take place would likely be if the people the children were placed with drove them to Chatham. This is a concern when one considers that they are of modest means and also have four children of their own whose lives they must organize and care for. It will be a big transition for everyone as the children settle in and it is important that this new arrangement not break down. On the other hand, the father, Mr. T. has his own transportation to the home of his sister where the children will be living and his access does not require supervision. Access visits with him would reasonably be considered to be of assistance in supporting the placement while lightening the load on the paternal aunt and uncle.
68Accordingly, order to go that:
69The mother will have access to L. and N. as arranged by the Society and supervised by the Society or their designate which will be offered a minimum of once per month.
70The father, Mr. T. will have liberal access to L. and N. as approved by the society and as arranged between him and the paternal aunt and uncle.
Parental Access to the Children Q. and S.
71Regarding the children Q. and S., I have considered the provisions of s. 59 of the CFSA. Both of these children are young and are adoptable. They have both been in care for almost three years. S. has never lived with either of her parents and Q. was only age two when he was apprehended. Q.'s memory of family life with his parents would be minimal and S.'s would be nonexistent. Although the mother continued to visit regularly with these two children, there was little evidence upon which to determine the degree to which these visits were either beneficial or meaningful to them. All visits with their parents have been in a supervised setting. Their father no longer attends access visits with them at all. If they continued to be tethered to their parents through an access order, there is a significant risk that this could further slow the process of placing the children for adoption and thus their future opportunities for their adoption could be impaired. They have been living in limbo far too long and they need to find a permanent home without further delay.
72Accordingly, order to go that neither the mother nor Mr. G. will have access to either of Q. or S.
Access to J.
73Regarding the child J. there was a good deal of evidence that his access with his father, Mr. T. was both beneficial and meaningful to him, although there was little evidence to establish this criteria regarding his visits with his mother. Indeed, there was some evidence that he was less than enthusiastic about visits with his mother. Visits with his father have been unsupervised for some time now, however those with the mother have remained supervised since the apprehension and should only take place in a supervised setting in the future. However, given the frequency with which he has broken down placements since apprehension, it does not appear that he will be easily placed for adoption. Therefore, continued access with his parents could not currently be said to impair his future opportunities for adoption. The mother suggested that if the children were not placed with her that she should have access visits with them every other week given the distance that she has to travel to come to Chatham. I have considered this evidence in light of the requirements of s. 59 (2.1) of the CFSA.
74Accordingly, order to go that:
75The father will have liberal access the child J. which is commensurate with his best interests in light of his behavioural challenges, as arranged by the Society.
76The mother will have access to the child J. as arranged by the Society which will be supervised by the Society or their designate and will be offered a minimum of two visits per month.
Released: April 25, 2014
Justice L. Glenn