Court File and Parties

COURT FILE NO.: FC-17-185 DATE: 2017/04/12 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Children's Aid Society of Ottawa, Applicants AND M. L., Respondent mother J. B. Respondent father

BEFORE: Shelston, J

COUNSEL: Mr. Fisher, counsel for the Applicant Ms. Robin, counsel, for the Respondent mother Mr. Lafrenière, counsel for the Respondent father

HEARD: April 6, 2017

Reasons for Decision

[1] The Children’s Aid Society of Ottawa (“Society”) seeks an order that the child M., born […], 2014, be found in need of protection and placed the care of her father for a period of six months subject to the supervision of the Society. The Society, with the support of the father, seeks a temporary order placing the child in the care of the father subject to the supervision of the Society.

[2] The mother seeks the return of her child to her care subject to a supervision order to the Society.

Position Of The Parties

[3] The Society’s protection concerns relate to the mother’s volatile behaviour, her inability to be protective of the child and lack of insight, her lack of support in her life, her mental health and her lack of attachment with the child.

[4] The father’s position is that the child would likely suffer harm if she was returned to the mother’s care due to the mother’s anger management issues, the refusal to be protective of the child in regards to a certain individual and her inability to care for the child.

[5] The mother concedes there is a risk if the child is returned to her care but that the risk can be dealt with by a supervision order.

The Apprehension

[6] On January 28, 2017, the Society received the report from the sister of the mother that she was concerned about her niece, M., because the mother was residing with an individual known as A. K. who had a history of domestic violence and a criminal history. The concern was that the mother was vulnerable and could be easily influenced. The Society confirmed that A. K. had been involved in domestic violence against previous partner.

[7] On February 1, 2017, the Society received a call from the paternal aunt raising concerns about the mother’s mental health, that the mother was exhibiting signs of erratic and paranoid behaviour talking about government conspiracies, cult rituals and that the police were able to come to anyone’s home and make them disappear. Further, the paternal aunt was concerned about the mother stopping any contact with the paternal grandmother and the child. Finally the paternal aunt was concerned that the mother was isolated from family, was using marijuana and that there were strangers in the mother’s home resulting in a serious concern about care for the child.

[8] On February 3, 2017, a child protection worker attended at the home. The worker initially found the mother to be cooperative and reported that the mother took care of the child during the day and the child was not attending daycare. During that visit, the mother reported that her doctor prescribed marijuana to deal with chronic pain sustained as a result of the severe car accident. The mother admitted that she was helping her friend, A.K. and he had it been staying in her home on a temporary basis.

[9] The child protection worker advised the mother of the risk posed to the child by A. K residing there and indicated the Society expected that he would leave the home. At that time the mother became very upset and started to scream, yell and swear at the worker in front of the child. The mother told the worker that A. K. would not leave the home and asked her to get out of the home. The Society worker then left the home.

[10] The child protection worker returned to the home later that day with another worker and a police escort. At that time A. K. was sitting in the living room. The worker repeated her concern at which point the mother became very upset and started to scream, yell and swear and refused to accept that A. K. would have to leave the home. The mother said that the daughter would be the one to have to leave the home. At this point, A. K. indicated he would leave the home. The child protection worker told the mother that they wanted a safety plan for the child and asked her where the child would go if A. K. would not leave the home.

[11] The mother yelled at the child protection workers that they were ruining her daughter’s life, refused to cooperate, continued to yell and swear and refused to give any belongings for the child. The child protection workers apprehended the child. The mother refused to say goodbye.

[12] Later that day, the Society was contacted by family members requesting that the child be placed with them. On February 3, 2017, the child was placed with the mother’s cousin for the weekend. An alternative plan was proposed for the child but fell through and the child was placed in foster care.

[13] On February 6, 2017, the father and the paternal grandmother contacted the Society and presented a plan of care for the child. On February 8, 2017, Justice Roger granted a temporary, without prejudice, order placing the child in the care of the Society and granted access to the parents and adjourned the matter to February 23rd 2017.

[14] On February 8, 2017, the child protection worker met with the father and the paternal grandparents and concluded that the home was appropriate and safe for the child.

[15] On February 10, 2017 the child protection worker observed the child, the father and the paternal grandparents and observed that the child ran to the father, observed affection between the child and the father and the godparents and that the visit was positive.

[16] On February 23, 2017, the parties appeared before me and consented on a without prejudice basis that the child would be placed in the temporary care and custody of the father subject to the conditions set out in the order. On that date, the care and custody hearing was set for March 16, 2017 and settlement conference was set for May 8, 2017. The care and custody hearing was subsequently adjourned to April 6, 2017.

Evidence Of The Parties

[17] The mother is 22 years of age. She was in a relationship with the father for approximately two years but broke up a few months after the child was born. The parties never lived together and for the first two years of the child’s life, the mother and the child resided with her parents in their home.

[18] In 2010, when the mother was 16 years of age, she was involved in a major car accident where she sustained severe injuries. She underwent significant rehabilitative therapy.

[19] Despite sufferings such severe injuries, the mother graduated from Algonquin College with a diploma in Community and Justice Services where she was on the Dean’s List and earned an award for the Most Progress Achieved. The mother was able to achieve such success as she was living at home and had significant support services. After graduating from college in 2015, the mother believed that she had the ability to care for the child herself and moved out in April 2016. The mother purchased her home with part of the financial settlements related to the car accident and receives a steady income based on a structured settlement related to that accident. She resides in a three bedroom home in Kanata, has purchased an investment property which she rents out to tenants and has invested money into a registered education savings plan for the child.

[20] The mother was under the care of Mr. St. Germain, an occupational therapist, until late 2015 who assisted her in implementing most of her rehabilitative services from medical care to basic life skill training. In his report dated March 9, 2017, he confirms that he has been treated the mother for five years in a clinical environment and in the last year and a half at both mother’s parents home as well as in her own home. His report indicates that the mother demonstrates a high level of maturity and he has no concerns about the mother being neglectful with respect to her child. He further observes that the child is highly intelligent and certainly more advanced than her current age and that she is able to use multiple words in a cohesive, understandable and contextually relevant sentences in regards to her surroundings. He observes that the child is well-adjusted, happy and playful.

[21] The mother was also involved with Dr. Helen Pigeon, a psychologist, to help her deal with the trauma experienced as result of the accident as well as anxiety and depression. The mother was under Dr. Pigeon’s care until 2015. The doctor advised the Society that the mother has problems with emotional regulation control which is not uncommon for her form of brain injury. The doctor indicated that the mother may say things without thinking without holding back and is impulsive in her responses.

[22] The mother also worked closely with the pain specialist, Dr. Mary Redmond to deal with her severe headaches, shoulder pain, neck and back pain also related to the accident. It was decided the most effective way to manage her pain was regular massage therapy and in the use of medicinal marijuana. Dr. Redmond has written two reports one being July 3, 2015 and a second report dated March 27, 2017 confirming that she prescribed the mother the use of marijuana to deal with pain. In her report dated March 27, 2017, the doctor indicated that she had no concern about the mother.

[23] In addition, the mother was under the care of her family doctor, Dr. Tonon who provided a report dated March 31, 2017 which indicates that she has seen the mother and the child on a fairly regular basis. The child has been brought in for the well-baby checks and recommended intervals, the child’s immunizations are up to date and that the child was brought in for appropriate reasons. Further, the doctor confirms that she did not have any specific concerns of the mother’s presentation at appointments or the mother’s ability to understand and follow through on any medical advice or recommendations. The doctor also advised the Society that when the child was seen at two years of age, there were no concerns noted and it was shared by the mother that the child was a good eater had a balanced diet but there was no direct observations.

[24] The Society provided a copy of her report from Dr. David Collins, a neuropsychologist dated September 7, 2012 where the doctor indicated that the mother presented at that time to have varying issues in many cognitive areas, particularly to working memory, memory and executive functioning. The report, written 4 1/2 years ago, provides a caveat at the beginning of the report which states, “the information and recommendations contained within the following report are intended for current use. Due to the developing nature of children and adolescents, reference to or use of this report in future years should be made with caution.” Despite that caution, the Society relies in part on this report to support their contention that the mother is volatile, impulsive, is inattentive and suffers from emotional regulation.

[25] I also reviewed the affidavits of the maternal grandparents and the mother’s sister. All three affidavits support the conclusion that the child has been doing well in the mother’s care. The sister was the one who originally contacted the Society regarding her concern about A. K. and continues to maintain that he should not be around her sister and the child as a result of a history of domestic violence with his previous partner. However, she is supportive of the child living with her sister.

[26] After the apprehension, the mother has been fully cooperative with the Society. She has the support of her parents. She is prepared to move back to her parent’s home if deemed necessary. She is prepared to enroll the child in either a part-time or full-time daycare as a condition of the child returning to her care to alleviate any concerns regarding the child. The mother has completed an intake form at the Bethany Hope Centre and seeks to participate in attachment counselling with that organization. The mother contacted St. Mary’s and attended a short parenting program called “Children See Children Learn”. The mother has registered in a course recommended by the Society called “Beyond Basics”. The mother is prepared to take a course recommended by the Society entitled “Healthy Babies Healthy Children” program.

[27] In addition, the mother has reconnected with Mr. St. Germain, the occupational therapist, to ensure that she is able to manage the child’s care and has reconnected with Dr. Pigeon to deal with the stress associated with the daughter being removed. The mother acknowledges a new psychologist will have to be retained because she is now an adult. The mother has contacted Elizabeth Fry Society to register for a course on emotional regulation program to start at the end of May.

[28] The mother’s marijuana use has been prescribed by Dr. Redmond. To alleviate any concerns with the mother using drugs such as cocaine and ecstasy which the mother admitted she did in her youth, she has registered with the relapse prevention program at Elizabeth Fry Society.

[29] The father is currently employed at Farm Boy and lives with his parents. The father was having access to the child until Christmas 2015 when access stopped and resumed in November 2016, when the father had access two times per week always supervised by the mother until January 2017. The father did not take any action to seek custody of the child or contact Society regarding any concerns about his child in the mother’s care as he wanted to avoid conflict and hoped the situation would resolve itself.

[30] The father’s affidavit raises concerns about strangers being in the mother’s home with the child, erratic behaviour of the mother by refusing access to the father, concerns about the mother’s anger management problems such as yelling in front of the child and inappropriately feeding the child.

[31] The Society’s evidence raises concern about the mother’s reaction to the intervention on February 3, 2017. The Society initially was concerned about A. K. living with the mother. Based on the information that I have received, that concern was a valid concern. The mother denies that the individual was living with her but indicates that he stayed at a residence for a few days prior to the apprehension and that she did so to give him a break from living in a rooming house. The mother denies that he ever lived with her.

[32] The mother indicates that after initially being sympathetic and understanding to the mother’s decision to allow the individual to sleep at her home, the Society worker changed her tone and demanded that the individual leave the residence or that she would apprehend the child. The mother acknowledges that her reaction and subsequent behaviour was not appropriate.

[33] The mother states that she never says goodbye to her daughter because when she parts she uses the words “see you later”. The mother now acknowledges that her actions were inappropriate but not saying something to her child.

[34] Counsel for the mother submits that one of the effects of the mother’s serious brain injury is that when she feels threatened, she acts out aggressively and consequently when the Society indicated that A. K. had to leave the home, the mother felt threatened and consequently acted out accordingly. Subsequent to the apprehension, A. K. was arrested and is currently incarcerated. There is no evidence as to when he will be released.

[35] Subsequent to the apprehension, the Society has raised other concerns. The first concern was that during access, the mother made inappropriate comments about the father in the child’s presence, the mother bringing too many items to the visit and concerns about the mother having “flat effect” in regards her daughter.

[36] The initial meetings with the Society and the mother after the apprehension were quite tense. However, by March 30, 2017, the relationship had improved, the mother reported to the Society worker of the various courses that she was going to undertake, agreed to provide consents and was observed that the mother was calm even though it had been observed that are starting to become more anxious.

[37] During the access visits, the CYC workers noted strengths in the mother’s access but indicated the mother continued to speak negatively about the father although less frequently. The CYC worker observed a lack of affection at the beginning of the visits between the mother and child, the mother attempts to engage the child and that the mother presenting with a “flat effect” at access. This was observed at various access visits. The mother’s evidence is that the child has changed since the child is taken out of her care and the changes are dramatic as the child is now quite withdrawn and less affectionate towards her.

Legislative Framework

[38] Sections 51(2) and 51(3) of the Child and Family Services Act (CFSA) provide the legal test to be applied for a temporary order for care and custody:

51(2) CUSTODY DURING ADJOURNMENT-Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

a. remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

b. remain in or be returned to the care and custody of the person referred to in clause (a), subject to the Society’s supervision and on such reasonable terms and conditions as the court considers appropriate;

c. be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the Society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or

d. remain or be placed in the care and custody of the Society, but not placed in,

(i) a place of secure custody as defined in Part IV(Youth Justice), or

(ii) a place of open detention as defined in that Part that has not been designated place of safety.

51(3) CRITERIA - The court shall not make an order under clause (2)(a)(b) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and the child cannot be protected adequately by an order under clause 2(a) or(b)

[39] Under subsection 51 (3) of the CFSA, the burden of proof is on the Society to satisfy the Court that there are reasonable grounds to believe that there is a risk that a child is likely to suffer harm and the child cannot be adequately protected by an order returning the child to parental care with or without an interim supervision order. The test set out by Blishen J. in Children’s Aid Society of Ottawa-Carleton v. T., at para. 10, is as follows:

The Children’s Aid Society must establish, on credible and trustworthy evidence, reasonable grounds to believe that there is a real possibility that, if the child is returned to his or her parents, it is more probable than not that he or she will suffer harm. Furthermore, the Society must establish that the child cannot be adequately protected by terms and conditions of an interim supervision order to the parents.

[40] In Children’s Aid Society of Toronto v. L.P., 2010 ONCJ 320, the Court held:

A court must make an order that is the least disruptive placement consistent with the adequate protection of the child in accordance with section 1(2) of the CFSA. The degree of intrusiveness of the Society intervention and the temporary protection ordered by the court should be proportional to the degree of risk.

[41] In Catholic Children’s Aid Society of Toronto v. J.O., 2012 ONCJ 269, 20 R.F.L. (7th) 471, the degree of intrusiveness of the Society’s intervention in the temporary protection order by the Court should be proportional to the degree of risk.

[42] Under section 1(1) of the CFSA, the paramount purpose of the legislation is to promote the best interests, protection and well-being of the children. As part of that purpose one of the factors that a court is to consider is the least disruptive course of action that is appropriate to help children.

Analysis

[43] All parties agree that there is a risk if the child is returned to the mother. The issue is whether I should order the child to remain in the care of the father subject to a supervision order or return the child to the care of the mother under supervision order with very strict conditions.

[44] The CFSA permits the court to return the child to the care of the person who had charge of the child immediately before intervention subject to the Society supervision and on such reasonable terms and conditions as the court considers appropriate. In this case, the person who had care of the child immediately before the intervention was the mother.

[45] The Society has the burden of proof on a balance of probabilities to meet the legal test set out in the legislation. I find that the Society has failed to meet their burden of proof.

[46] With respect to the allegation of the mother’s volatility, the mother’s reaction on February 3, 2017 was inappropriate and disproportionate to the request made by the child protection worker. The mother should have cooperated and had the individual removed from her home. If that have occurred, I doubt the child would have been apprehended. The actions of the mother appeared to be completely out of character when compared to all other evidence regarding her mental health and child caring ability.

[47] While I accept that the mother was a friend of this individual when she was a teenager, she showed poor judgment in allowing that friendship to override her primary role is caring for the child. However, on a review of the totality of the evidence, this appears to be an isolated incident. The preponderance of the evidence supports the finding that the mother has been caring for the child since birth with the support of her parents and living on her own since April 2016.

[48] There is no evidence to support a finding that the mother was not properly caring for the child prior to February 3, 2017. To the contrary, there is significant evidence that show the mother was adequately caring for the child.

[49] While the mother suffered a significant brain injury in 2010, she has been able to graduate from a community college, buy a home, buy an investment property, purchase a registered educational savings plans for her daughter, made sure that her daughter was seen regularly by the family doctor, receive assistance from the massage therapist, a psychologist and pain specialists.

[50] Subsequent to the intervention by the Society, the mother was clearly emotional and extremely upset. However, the mother has been working cooperatively with the Society to pursue whatever recommended courses they have been made to her.

[51] The mother recognizes that A. K., although a teenage friend, is not to be near her own child and is prepared to consent to a condition to that effect.

[52] Other than the allegation of the presence of A. K., I do not find that the mother has permitted strangers to enter her home and be in contact with her child.

[53] I also do not find that the mother has been inattentive or lacks insight with respect to the care of her child. To the contrary, I find the mother has been attentive to her child and has the necessary insight to care for her child.

[54] With respect to the marijuana use, it was prescribed by a medical doctor to assist the mother in dealing with the pain suffered in the car accident in 2010. I do not find any evidence of the mother has abused that medication.

[55] With respect to the observations made by the CYC’s specifically with respect to the issue that the mother fails to show sufficient emotional ties to her daughter, the mother has agreed to undertake a course in emotional regulation. Dr. Pigeon indicates that the mother has problems with emotional regulation. I note that the evidence of the CYC workers provides many instances of positive aspects of the mother’s access.

[56] I am not satisfied on a balance of probabilities that I can make a finding that the mother is emotionally not connected with her daughter based on the observations of the CYC workers in the face of the mother’s denials and an explanation as to the mother’s observations of the change in her daughter’s demeanour.

Disposition

[57] I find that the child shall return to the mother’s care subject to supervision of the Society with the conditions set out herein:

(1) The mother shall cooperate with the Society by meeting regularly with her assigned worker, allowing announced and unannounced visits at her home, and following reasonable recommendations that are made.

(2) The mother shall ensure that all of M.'s medical, emotional, and developmental needs are met.

(3) The mother shall not expose M. to any adult conflict, which includes speaking negatively about the father and/or any members of his family.

(4) The mother shall not permit M. to be exposed to any individuals who have a history of violence or criminal activity, including A. K., unless otherwise approved by the Society or the Court.

(5) The mother shall not allow any individuals to reside in her home unless approved in advance by the Society or the Court. The mother shall not leave the child with any alternate caregivers unless they are approved in advance by the Society or the Court.

(6) The mother shall ensure that M. is visible in the community, by enrolling her in a full-time or part-time daycare program, or another activity/program such as a playgroup, swimming lessons, etc., which would allow M. to be visible to professionals in the community a minimum of 3 days each week.

(7) The mother shall allow her parents to attend her residence on a daily basis to check-in, and accept their support.

(8) The mother shall access support services to address issues associated with her brain injury, which may include occupational therapy with Cameron St. Germain from TRAC group, or a life skills professional and follow recommendations that are made.

(9) The mother shall participate in counselling services with Dr. Pigeon, or another qualified service provider, with a specific focus on learning ways to manage her emotions in stressful situations.

(10) The mother shall complete the Emotion Regulation Program at the Elizabeth Fry Society of Ottawa.

(11) The mother shall continue to work with Dr. Mary Redmond, or another qualified physician, to manage her physical pain, and follow recommendations that are made.

(12) The mother shall attend and complete the Beyond the Basics parenting course.

(13) The mother shall work with the Healthy Babies Healthy Children program, and follow reasonable recommendations that are made.

(14) The mother shall participate in attachment counselling with the Bethany Hope Center, and follow recommendations that are made.

(15) The mother shall sign consent forms to permit the Society to verify her involvement and progress in services, as well as compliance with any recommendations.

(16) The mother shall facilitate access to the father as ordered by the Court.

[58] With respect to access, the father had requested that he have the child on an alternating weekly basis. The mother’s position is that the father should have the child every second weekend from Friday at 6 PM to Sunday at 6 PM and one overnight on the alternative week. The father works at Farm Boy and works Friday nights but does not work on Sunday and Monday. In the circumstances, I order that the father have the child every second weekend from Sunday at 9 am until Monday at 6 pm and every other week, as agreed to by the parties, for an overnight.

Shelston, J Date: April 12, 2017

COURT FILE NO.: FC-17-185 DATE: 2017/04/12 ONTARIO SUPERIOR COURT OF JUSTICE RE: Children's Aid Society of Ottawa, Applicants AND M. L., Respondent mother J. B. Respondent father BEFORE: Shelston J. COUNSEL: Mr. Fisher, counsel for the Applicant Ms. Robin, counsel, for the Respondent mother Mr. Lafrenière, counsel for the Respondent father reasons for decision Shelston J. Released: April 12, 2017