Court File and Parties

Court File No.: Kenora FO-09-069-001

Date: 2012-04-03

Ontario Court of Justice

Between:

Kenora Rainy River Child and Family Services Applicant

— And —

P.C. & A.C. Respondent

Before: Justice Jennifer Hoshizaki

Heard on: June 13, 2011, August 15, 22, 2011, September 9, 2011, October 3, 2011, November 2, 7, 8, 10, 2011, December 7, 8, 2011 and January 27, 2012

Reasons for Judgment released on: April 3, 2012

Counsel:

• David Elliot, for the applicant Society
• Beth White, for the respondent P.C.
• Shirley Gauthier, for the respondent A.C.
• Peter Kirby, for the Office of the Children's Lawyer, legal representative for the Children

Judgment

Hoshizaki J.:

Introduction

[1] This matter comes before me by way of a Status Review Application for Crown Wardship with no access. The trial commenced on June 13, 2011 and continued for 12 days. The matter was adjourned until April 3rd, 2012 for decision.

Background

[2] P.C. ("the father") and A.C. ("the mother") are the parents of the children who are the subject of this application namely S.C.S.C., born […], 2004 (age 8) and B.R.M.C., born […], 2005 (age 6). The family moved to Kenora in April 2007. Prior to residing in Kenora they resided in Edmonton, Alberta. They were involved with Alberta Children's Services in August 31, 2005. The concerns of the Society at that time were identified as marital conflict, parental marijuana use and ongoing mental health concerns of the mother. (Statement of Agreed Facts dated March 11, 2010). In 2006, the parties briefly separated and the children remained with the father. The parties reconciled later that year. In February 2007, the children were apprehended by Alberta Children's Services. By agreement, the children were returned to the parents under a Supervision Order.

[3] The Kenora Rainy River Child and Family Services provided services to the family until January 2008, when the file was closed. However the protection file was reopened in April 2008. The parties separated on September 12, 2009. The father contacted the society and requested that the children be taken into care. On September 14, 2009, the parties signed a temporary Care Agreement for three months. On November 3, 2009, the society terminated the agreement and filed a Protection Application. On March 11, 2010, an Agreed Statement of Facts was filed and a final order issued on the same date by Justice Hoshizaki making the children Society Wards of Kenora-Patricia Child and Family Services (as it then was) for a period of three months. The matter returned on June 24, 2010 when the Society brought a Status Review Application seeking a further three-month period of supervision. On July 29, 2010, the society received an order amending the Application to Crown Wardship on consent. The Society is seeking Crown Wardship with no access.

Status Review

[4] The initial determination for this court is whether the order previously made to protect the children continues to be required for the future protection of the children. There has already been a finding that the children are in need of protection. The protection finding for the order of Society Wardship was made pursuant to Section 37(2)(b)(ii) of the Child and Family Services Act – the risk that the children are likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's pattern of neglect in caring for, providing for, supervising or protecting the child.

[5] The Supreme Court case of Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165 outlines the two-fold examination of any Status Review hearing. The court must look at 1) whether or not the children continue to be in need of protection and therefore, require a court order for his or her protection and 2) the court must review the best interests of the children.

[6] The position of the Kenora-Rainy River Districts Child and Family Services ("the Society") and of Mr Kirby, who represents the children from the Office of the Children's Lawyer arises primarily from the Parenting Capacity Assessment of Dr Ellis. Mr Kirby concurs that the evidence favours Crown Wardship without access.

The Report of Dr Ellis

[7] Dr Ellis prepared a thorough and lengthy report dated May 30, 2010 after reviewing all of the background material and spending significant time with the parents and children. It is evidence that was not contested at trial. The mother did not dispute his facts and the father noted a few minor inconsistencies. The report itself has been unchallenged.

The Children

[8] Dr Ellis described S.C.S.C. as a child who did not exhibit any significant reticence upon meeting him. Throughout the visit, she invaded personal space boundaries and presented as demanding, oppositional, impulsive, insecure and manipulative. Her mood range was intense, ranging from euphoria to anger. He described B.R.M.C. as exhibiting a slight reticence but also invaded personal space boundaries. She related in a distant, aggressive, insecure and impulsive manner. The children present as inappropriately sexualized for their age.

[9] There is no doubt from the evidence of the care providers, the support workers and the foster parents that these children are extremely high needs. The then foster mother Ms A.B. stated to Dr Ellis that her mind is "exhausted" from parenting the children. Dr Ellis concluded that the children are "beyond conventional help." Page 68, paragraph 2 of his report predicts the following:

[10] "It would literally take the rest of the time available to the children before they reached adulthood in high quality parental care for them to have even a slight chance of achieving something approximating psychological functioning within the broad range of normal."

[11] Dr Ellis concluded that the children's interpersonal functioning is severely compromised. His report indicates that their manner of relating evidences the fact that they have yet to form a secure and fulfilling attachment to a principal caretaker, a milestone he notes, is usually achieved in the second half of a child's first year of life. This attachment develops in response to a predictable and empathetic need fulfillment from a principal caregiver. His conclusion was evidenced throughout the trial. The present foster parent K.L. testified that the children are unconcerned about strangers and want to kiss people on the mouth. There also was ample evidence from the access drivers, other foster parents and Society workers that the children did not experience any difficulty in leaving access visits with their parents.

The Parents

[12] Dr Ellis opined that both parents had a role to play in the children's issues. Although both parents believe that the primary reason for apprehending the children was due to substance abuse, Dr Ellis concluded that the substance abuse was not the primary cause of the severe deficits in their parenting. The parent's substance abuse was a secondary effect of their psychological disturbance, which was the more direct cause of the children's profound developmental delays in the area of interpersonal and emotional development. In page 66 paragraphs 1 and 2 respectively, of his report, Dr Ellis further states:

"The primary cause of the children's disturbance is directly a result of mother's life long and nearly similar disturbance in psychological functioning, a disturbance which despite its pervasive manifestations of dysfunction in her own life is transmitted to the children's life by mother's incapacity to parent as a result of the many impacts of her disturbance on her ability to provide empathically informed responsiveness to her children's needs."

"The father is not responsible primarily for the inadequacies to which the children were exposed, but is responsible for enabling and perpetuating these deficits by funding the mother's substance dependency and being an equivalent partner in it as a means to fulfill his own cheap thrills compensation for his feelings of inadequacy as a person and a male."

[13] The father displayed an appalling lack of judgment in placing his needs before the needs of the children.

[14] In conclusion, Dr Ellis is concerned that the parents have little or no insight into the role that they both played in the children's significant deficits. He recommended a residential treatment program for both parents. Although this may not be ideal for the father, Dr Ellis considered the program as a starting point for him to begin the process of feedback on his denials and on the impact of his behaviour on his children.

[15] Dr Ellis notes that the father has no control or influence over the children. His visit was more controlled than the mother's but this control is how he maintains interpersonal distance. He is permissive in his response to the children. These are not parenting skills that would allow the children to recover from what they have experienced in the past. The interpersonal space would not engender any trust in the children. Under the father's care, Dr Ellis concluded that the children would be out of control by the time that they reached puberty.

[16] He goes on to predict that the children would be out of control in their mother's care in a matter of weeks. He noted that both parents self reporting was riddled with inconsistencies. The father's self report also contained conflicting information and distortions of information.

The Report of Dr Hunt

[17] Dr Hunt's report is titled a parenting capacity assessment but he acknowledged in his testimony that the report is limited due to his restricted hours from Legal Aid. In addition, he testified that he did not review all of the background documentation nor verify the parent's self report and that he is not an expert in parenting capacity assessments.

[18] Dr Hunt prefaced his report with some of his views on the child welfare legislation. His opinions are generally the views of the rest of the stakeholders in this matter. Children are best raised by their natural parents unless there are situations that find a child in need of protection. We are looking for the alternatives that are least disruptive to the child. Dr Hunt testified that his bias going in is that he is interested in supporting families, but his bias does not constrain him from recommending the removal of the children.

[19] His report noted that he was not able to establish a definitive causal connection between Mr C.'s parenting behaviours and the observed problematic behaviours of the children. He testified that this sexual behaviour could appear on its own, without external stimuli. Dr Hunt concluded that the father "appears to be able to parent the children with minimal supervision." (page 5, paragraph 7).

[20] Dr Hunt further concluded that there are serious concerns regarding the mother's parenting and she requires supervised access.

[21] He noted sexualized acting-out behaviours in S.C.S.C. and that she was engaged in inappropriate self-touching during his interview with her. B.R.M.C.'s behaviour issues were different. She presented as an emotionally constricted, introverted child. S.C.S.C. expressed a preference in living with her father and B.R.M.C. expressed a preference to live with her foster parents. He met with the children on one occasion.

[22] Dr Hunt recommended that the Crown Wardship be terminated and that the father have care of the children with access to the mother. He noted the difficulties in mother's access if the father returned to Edmonton. He based his recommendation on the father's past proven ability to parent (his older children) and the fact that he is no longer abusing substances.

The Report of Dr Perdita Torres in 2003

[23] The report of Dr. Torres was for psychological assessment to evaluate the father's current mental and emotional functioning as well as his ability to parent his children. She is a chartered psychologist from Edmonton, Alberta. The father was facing charges resulting from an altercation with the man that he caught with his former wife. The report describes the father as a person who is frequently in conflict with members of his family and with persons in authority. Ms Torres notes that the father's profile presents as someone who sees himself as a victim of circumstances rather than the offender. Someone who rationalizes the offense and denies any guilt for it. Such a person may be self-centered and does not listen to criticism or advice. She indicates that the father's job made him unavailable to parent his older children. She states that his parenting abilities are questionable. She refers to the fact that the father brought his daughter with him when he went to confront the wife's boyfriend; there were reports that his son damaged his ex wife's home with his encouragement and that he left his 14 year old son at home with minimal supervision when he was facing the criminal charges. Dr Torres' assessment outlines the father's low empathic awareness of his children's needs.

[24] Dr Torres describes the mother as a disturbed young woman whose emotional instability is exacerbated by her substance abuse. She is prone to temper outbursts, threatening behaviours and to lose control once the situation is escalated. Her negative childhood experiences make the likelihood of change to be very low.

Sexualized Behaviours of the Children

[25] There was ample evidence at trial substantiating that the children are inappropriately aware of sexual behaviour and sexual language for their young age.

[26] A.B., the first foster mother, who had the children for over a year testified that S.C.S.C. talked of wanting to do open mouth tongues kisses with Ms A.B.; about asking to lick her bum; asking about B.R.M.C. trying to get S.C.S.C. to take pictures of her vagina and asking her to lick her. C.L.B., the second foster mother testified that S.C.S.C. told her that she saw her mom and dad "doing it and it looked like they were having fun." Ms C.L.B. found a note written to Jackson (a school mate) from S.C.S.C.. When she questioned her about the note, S.C.S.C. told her that by having sex with Jackson, he would be her friend. She saw her parents get "naked and hump". When asked about the word "hump", S.C.S.C. told Ms C.L.B. to "ask her mom."

[27] The trial was replete with testimony from many different witnesses concerning the children's knowledge of sexual language, overt sexual behaviour and their exposure to adult conversations concerning sex.

[28] In addition, the evidence from the foster parents portrayed extremely troubled children. When they first came into care, the children had bowel issues. They displayed aggressive behaviour. S.C.S.C. was observed harming animals and they both were destructive; S.C.S.C. by cutting clothing and both by colouring and painting on the floor. Ms K.L. and Ms C.L.B. testified that the children did not have a sense of right and wrong appropriate for their age. Ms A.B. testified that she received ongoing reports from the school that S.C.S.C. was jumping on the boys on the bus and making children cry. S.C.S.C. was also stealing things from school. Ms C.L.B. testified that S.C.S.C. had no idea that the other children shunned her. She was completely lacking in social skills and any understanding of interpersonal skills.

[29] Presently the children are receiving counselling with Firefly at the Cameron Bay Children's Centre. There has been gradual improvement in their behaviour at their present foster home. Ms K.L. testified that the children have settled in their home. They are socializing more, getting invited to birthday parties and doing well in school. She has not witnessed any overt sexual behaviour since May 2011. The children came into her care in April 2011.

The Mother and Father

[30] Both parties presented at trial in a manner similar to their interactions with Dr Ellis.

[31] The mother is a product of her family of origin issues. She relates in a disorganized and incoherent manner. Her dysfunctional upbringing, although no fault of her own, leaves her bereft of any sense of self worth. Clearly she is unable to manage her own interpersonal and emotional intensities. She has the intellect to understand what this means in terms of her non-existent parenting abilities, but she lacks the ability to process how to manage all of the intense negative emotions cemented in her character during the earlier years of her life. At trial, she presented as an open book. She did not appear to be hiding anything and to her credit, she understands that her deficits may leave her unable to parent her children. She testified that she wants what is best for them, and recognizes that this may mean they cannot be returned to her care. I give her credit for putting the children's needs ahead of her own. I also give her credit for attending a residential treatment program. She needs to continue with counselling but she has made a start.

[32] The mother testified that the father couldn't parent the children. He will give them what they want, not what they need. She objects to his position that he has a proven track record of raising his older children. He was not the primary parent during their childhood and the children did not grow up without difficulties in their lives. Other evidence at trial corroborates this.

[33] The father and mother met when he was 42 years of age and she was 18 years of age. She was high on cocaine that evening and they had sex. He acknowledged that during their relationship, he purchased marijuana for her to get her off of crack. In addition, the marijuana would mellow her out. He told Dr Ellis that the relationship lasted six years because he has a big heart. He has no understanding how deep his need for intimate and emotional self-fulfillment played a role in the disintegration of the relationship and in the dysfunction in their parenting.

[34] Dr Hunt observed that the father fixates on particular areas of external difficulties. He externalizes his problems and focuses on the perceived injustice of the situation. This was evident in his interactions with the society. He is preoccupied in trying to achieve positive reinforcement and is only able to commit to a long-term relationship with supports that appear to be on his side. Dr Ellis reported, "he (the father) adopted aggrandizing beliefs in his superiority to compensate for his identity/self esteem deficits." (page 64, paragraph 4) Both Dr Ellis and Dr Hunt recommended that the father participate in a group counselling sessions where confrontation might assist the father in gaining some insight in his role in the children's deficits.

[35] What is significant to the court is that both parents deny that the children were experiencing any of the serious problems that were evidenced by caregivers, teachers, workers and doctors when they were first brought into care. I agree with the Society's position and the position of the Children's Lawyer that the father's credibility is suspect at best. His denial of any wrong doing or any parenting shortfalls is so deep rooted in his character that it would take years of intensive counselling to reach a stage where he could begin to meet the emotional needs of these children. He could meet the custodial needs of the children, but that is not enough. These are extremely high needs children.

[36] The father filed a list of contacts and resources in Edmonton but the personal supports are not significant and the community supports are also available in Kenora. The father has not received any intensive counselling since the apprehension. He has had counselling with Irene Bergman. However from her testimony, it is evident that this counselling was superficial at best. Ms. Bergman clearly crossed the line from counsellor to advocate.

[37] Both parents had difficulty in cooperating with the Society. The mother's relationship improved after she attended treatment but the father's relationship with the Society was damaged by his outrageous accusations. These accusations, threats, complainants and claims of support (that did not materialize as evidence at trial) are clear examples of his externalization. The father would have been better served by addressing his issues rather blaming others for his current situation.

The Decision

[38] The expert report of Dr Ellis has been unchallenged. He has forty years of preparing assessments primarily in the conflictual areas of child protection and custody and access disputes. His report is strongly in favour of Crown Wardship. I echo all of his concerns and the testimony of each parent at trial corroborates his assessment of them in the report. Neither parent has progressed significantly, if at all, in their ability to parent these children since the protection finding. The apprehension concerns of the Society are still valid today. Accordingly, an order for Crown Wardship is in the best interest of the children.

Crown Ward With or Without Access

[39] The legislation states that any order for access after an order of Crown Wardship is terminated. This is a rebuttable presumption. The onus is on the parents.

[40] Section 59(2.1) states that a court may not make an access order unless the court is satisfied that the access between the person and the child is "meaningful and beneficial" to the child and that the ordered access will not impair the child's future opportunities for adoption.

[41] Presently, the children are in a foster home that meets the needs of the children. There has been some improvement in their behaviour. But they require years of consistent, high quality care to nurture them to a place where they can begin recover from their traumatic past. They need an opportunity to learn to trust their caregivers and develop a bond with them. This can only be achieved if they are in a stable, secure environment. Even though there is no plan before the court for adoption, it is only recent that the children have settled down to a level that such relationships could develop. There is no obligation on the Society to provide a prospective family. The children are young and an order for access, considering the ongoing issues of each parent, would impair their future opportunities for adoption. There was ample evidence at trial that the children have no secure attachment to either parent. I cannot perceive how access could benefit these children going forward. Therefore, the order for Crown Wardship shall be without access.

Released: April 3, 2012

Signed: Justice Jennifer Hoshizaki