Court File and Parties

Court File No.: Elliot Lake, File No. 21/09 Date: 2012-03-07 Ontario Court of Justice

Between: Children's Aid Society of Algoma, Applicant

— And —

L.T. (mother), C.C. (father), B.W. (First Nation), Respondents

Before: Justice R. Villeneuve

Heard on: February 13, 2012

Endorsement released on: March 7, 2012

Counsel:

• Bonnie Ostroski, for the applicant society
• Eric McCooeye, for the respondent mother

Endorsement

VILLENEUVE, J.:

The Motion

[1] The Court heard argument on the Society's motion at Tab 2, volume 3. The Society seeks an interim order placing the child, L.C., born […], 2005 in the temporary care and custody of the mother, L.T., under the supervision of the Children's Aid Society of Algoma, and subject to the terms and conditions set out in the appendix to the application.

[2] The motion also seeks conditions on access by Mr. C. who did not participate in the motion.

[3] The child, L.C., was not apprehended by the Society and remains in the care of the respondent mother, L.T.

Background History

[4] On August 30, 2010 this Court made a final order terminating a previous order of this Court dated September 21, 2009. That order placed the child, L.C., and the child, E.C., in the care and custody of the mother, L.T. and the father C.C. on a 12 month supervision order subject to certain terms and conditions including a term requiring the mother and father to, at all times, absolutely abstain from the consumption of alcohol and non prescribed dosages of drugs.

[5] A brief history is in order to put this motion into context. The respondent and her spouse Mr. C. are the parents of the child, L.C., the subject of this motion, and the child, E.C., who currently resides with her father Mr. C., in southern Ontario.

[6] There is an ongoing history with child protection agencies dating back to at least May of 2000 when a third child of the respondent mother was made a Crown ward in Manitoba. Substance abuse by the mother was a factor considered by the court in making that order. Subsequently, the respondents moved to Saskatchewan and in 2002, child protection authorities began to become involved with this family. By then, the child, E.C., had been born into the family. Of particular interest to this Court is the fact that both parents of the child, E.C., at the time were suffering from abuse of alcohol and drug issues. The child, L.C., was in fact born addicted to drugs as the mother admitted to abusing cocaine while pregnant with child.

[7] The children were apprehended on at least two occasions in the summer of 2005 owing to the parents' inability to care for them given their addiction issues and their failure to choose appropriate caregivers for the children.

[8] The mother's issues culminated in her being charged with several criminal offences including robbery for which she received a 3 ½ year Federal sentence on October 5, 2005.

[9] In or about 2006 the father relocated to the Blind River jurisdiction and continued to work with child protection authorities to address his alcohol and drug issues. The respondent mother, upon her release from jail, relocated to this region in 2008. The Ontario Provincial Police attended on at least a couple of occasions for calls of a domestic nature. On both occasions the parties had been drinking. In fact, on December 14, 2008, the respondent mother was arrested by the police for having breached her parole condition to not consume alcohol. Her parole was revoked and she remained in jail until April 3, 2009.

[10] Both parents further attempted in 2009, to deal with their addiction issues and attended the Oaks Centre in Elliot Lake. The mother completed the program on July 3, 2009 and continued with her after care.

[11] This Court, on September 21, 2009 made a finding that the children, E.C., and L.C., were in need of protection and placed the children with the parents on a 12 month supervision order on the consent of the Society given the fact that both parents were making a concerted effort to address their addiction issues.

[12] The Society conducted hair follicle testing on both parents, the results of which were negative on November 16, 2009. A second test was conducted of the respondent mother, in May of 2010 which again proved negative for drugs and alcohol. As a result, this Court terminated the September 21, 2009 order on August 30, 2010.

[13] In the meantime, the parents had split up and the respondent father, Mr. C., relocated to southern Ontario in the Kitchener area.

Recent Events and Concerns

[14] The Society's material, and in particular, the affidavit at Tab 3 sets out information obtained from a foster parent, M.P., who indicated that on or about May 18, 2011 he attended the family residence to assist with the child, E.C. He noted the mother, L.T., to have been consuming alcohol and that the child, E.C., was visibly upset by that fact.

[15] On May 22, 2011 the respondent mother was charged with impaired driving by the Ontario Provincial Police. There were smashed beer bottles noted in the car and the mother was described as highly intoxicated.

[16] In June of 2011 the respondent mother and the child, E.C., relocated to Kitchener to join the father and the child, L.C. The mother and the children next returned to the Blind River region in July of 2011. On July 31, 2011 and based on information provided to the Society by M. and J.P., foster parents, the children were left with them on Friday evening to be babysat. The information provided by the P. would suggest that the respondent mother left the children with them to be babysat overnight. She subsequently called on Saturday and asked that the children remain another night as she was to be out for the evening socializing with friends. The foster parents became concerned by Sunday night when the children had not yet been picked up.

[17] In August of 2011 there was an incident whereby a third party complained of the child, L.C., riding his bike in the neighbourhood without a helmet at 10 p.m. in the evening. This incident is denied by the respondent mother. In October of 2011 there was an anonymous complaint made to the Children's Aid Society of the mother drinking alcohol. An interview with the child, L.C., at school in October was conducted wherein the child told child protection authorities that his mother drank alcohol and that she bought her beer at the Beer Store. When confronted with this, according to Society material which is not denied, the mother took the position that alcohol use in her home was permissible.

[18] Further meetings occurred with the mother and in late October the mother did not deny drinking but during that conversation with the Child Protection Worker, agreed to stop consuming alcohol.

[19] There was another meeting on November 7, 2011 when the mother's continued consumption of alcohol while caring for the child, L.C., was discussed. By this time, the child, E.C., has relocated to live with her father in Kitchener. The respondent mother again took the position at that meeting that her alcohol issues were in the past and despite her past with alcohol abuse, the Society was not entitled to insist that she not consume alcohol whatsoever. The mother reiterated her position that prior to consuming alcohol she would arrange for an adequate caregiver for the child, L.C.

Mother's Position

[20] The mother has filed affidavit evidence at Tab 6 of volume 3. She has explained the situation involving the P. and maintains that she asked for and obtained their consent to continue to care for the children on that week-end in question. She has denied the incident of the third party calling involving the child, L.C., being out on his bicycle in the neighbourhood at 10 p.m.

[21] The mother, in her affidavit and at the hearing of this motion, maintained the position that she should not be prohibited from consuming alcohol. She is in agreement that the child should not be present when she does so in the home, and she is prepared to provide adequate care for the child, L.C., during those times that she chooses to consume alcohol. She is prepared to agree that no alcohol be present in the home and that no persons under the influence of alcohol be in the home in the presence of the child, L.C.

Society's Position

[22] The Society is of the view, given the respondent mother's history with the abuse of alcohol, that her use of alcohol places the child, L.C., at risk such that there should be a supervision order prohibiting the consumption of alcohol whatsoever.

[23] The Society maintains its position that the order which this Court made on August 30, 2010 terminating the September 21, 2009 supervision order, was based on two clean hair follicle tests on the part of the mother when she was tested negative for the consumption of alcohol and drugs.

Legal Framework and Analysis

[24] The onus in a Section 51 hearing of the Child and Family Services Act rests upon the Society. Section 51 (2) provides the court with four options in a temporary care and custody hearing. Option C and D are not applicable at this time. The child has not been apprehended from the care of the respondent mother. At issue is whether or not the court ought to order that the child, L.C., remain in the care of the respondent mother without any conditions, some conditions, or those conditions sought by the Society in the appendix to its application.

[25] The central question here to be addressed is whether or not the Society has met the burden of proof on the balance of probabilities that an order that the child remain in the care of the respondent mother without conditions poses a risk to this child. If the Court finds that in fact the circumstances of this case pose a risk to the child, L.C., then the Court must determine adequate conditions to address that element of risk.

[26] The Court has highlighted a brief history of the respondent mother's involvement with child protection authorities in Manitoba, Saskatchewan, and Ontario. Central to the intervention by those child protection agencies was the mother's abuse of drugs and alcohol. In fact, the child, L.C., was born addicted to drugs. The mother's difficulties with alcohol and drug abuse directly led to her incarceration in a Federal institution for the crime of robbery for 3 ½ years. She was granted early parole and violated that parole in 2008. The violation of the parole involved her inability to refrain from consuming alcohol.

[27] To her credit she attended treatment and tested negative for the consumption of alcohol in two hair follicle tests conducted in 2009 and 2010. As a result of those test results and her continued commitment to work on her abuse issues the element of risk to the child, L.C., and E.C., was deemed minimal to the point where this Court ended all child protection proceedings by way of the August 30, 2010 order.

[28] Unfortunately, shortly thereafter the respondent mother resumed consuming alcohol as evidenced by the Society's affidavit material of incidents on May 18, 2011 and the impaired driving charges of May 22, 2011.

[29] The respondent mother has not denied that she has resumed consuming alcohol. She takes the position through her counsel and in her material filed that her resumption of the consumption of alcohol does not pose a risk to the child provided alcohol is not consumed in the child's presence and that adequate care arrangements have been made for the child during those periods of time that the respondent mother chooses to consume alcohol.

[30] Without knowing the results of the impaired driving charge, what is evident to this Court is that the respondent mothers' resumption of the consumption of alcohol has caused her once again to run afoul of the law. She fails to recognize the seriousness of that incident and more particularly, the seriousness of the impact on her family by her resumption of the consumption of alcohol. Alcohol, since at least the late '90's, has been an issue for her. It has resulted in her eldest child being made a Crown ward. It has resulted in the child, E.C., choosing to leave the mother's residence in Blind River to resume living with her father in Kitchener. It has impacted the child, L.C., to the point where he has disclosed to child protection authorities that his mother drinks and that she in fact purchases alcohol at the Beer Store. We are dealing with a 7 year old child who is quite candid with child protection workers when they visit him at school about the habits of his mother.

[31] I find that based on the history of the respondent mother which I have set out above and the impact on her 3 children to date, that the consumption of alcohol by the respondent mother poses a risk that the child, L.C., is likely to suffer harm if exposed to the mother's alcohol consumption. She does not make good choices when drinking.

Risk Management

[32] The next question is whether or not that risk can be adequately managed by a protection order under Section 51 (2)(b).

[33] The Society seeks a complete prohibition on the consumption of alcohol by the respondent mother. The respondent mother opposes such an order but is willing to concede that alcohol should not be present in her residence, she should not be caring for the child under the influence of alcohol, nor should any third party. The respondent mother also opposes any order that would permit unsupervised visits by child protection authorities with the child, L.C., at school. She is of the view that such visits place unnecessary stress on the child.

[34] In view of the history of the respondent mother with child protection authorities and her struggles with addiction issues, I cannot agree with the mother's position that there be no clause prohibiting her from consuming alcohol while the child, L.C., is in her care. There is evidence of a lack of judgment on the part of the mother from time to time, when consuming alcohol, such as the impaired driving incident. Furthermore, the week-end wherein the children, E.C., and L.C., were placed with the P. family by the mother, for Friday night so that she could socialize with friends, which by her own admission included the consumption of alcohol, is further evidence to this Court that she lacks judgment when consuming alcohol. To her credit, she did call the P. residence to extend the children's stay for another night so that she could continue to socialize with friends and consume alcohol. By Sunday night she had not yet picked up the children. I accept that evidence. This is indicative of the mother's lack of appreciation and/or judgment when it comes to her obligation towards her children and her choice to consume alcohol. She has maintained through her counsel, that she would make adequate supervision arrangements for the child, L.C., should she choose to consume alcohol but this Court is not satisfied that she would make appropriate arrangements in those circumstances. The Court is concerned that the mother's desire to consume alcohol would cloud her better judgment in arranging for or choosing an appropriate caregiver.

[35] The risk that the respondent mother's consumption of alcohol poses to this child cannot be addressed without a prohibition on the consumption of alcohol.

Order

[36] Accordingly, there shall be an order placing the child in the care of the respondent mother on those terms and conditions set out in the appendix attached to the application at Tab 1 of volume 3.

[37] Access to the father, C.C., to the child, L.C., shall be in accordance with those terms and conditions set out in paragraph 2 of the application.

[38] This application shall be adjourned to March 26, 2012 to set a date for settlement conference.

Released: March 7, 2012

Signed: "Justice R. Villeneuve"