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 subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

45.— (8) 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.

85.— (3) A person who contravenes subsection 45(8) (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 File and Parties

Court File No.: FO-09-000037-02

Ontario Court of Justice

Between:

Kenora-Rainy River District Child and Family Services Applicant,

— and —

R.D.K. Respondent,

Before: Justice Peter T. Bishop

Heard on: January 30, 31, March 19 and April 2, 2012

Reasons for Judgment released on: May 1, 2012

Counsel:

• David Elliott, for the applicant society
• Mark Mymko, for the respondent
• R.D.K., for herself at trial

BISHOP J.:

Introduction

[1] This matter comes before me by way of a Status Review Application relating to A.K., date of birth […], 2005 and J.J. St.A., date of birth […], 2006. The Applicant is the birth mother of these children.

[2] The children were the subject of two Temporary Care Agreements and were subsequently apprehended on June 19, 2009.

[3] Both children were made Crown Wards without access by the Order of Justice A. Thomas McKay dated March 26, 2010.

[4] Justice McKay found the children in need of protection pursuant to S.37(2)(b)(i) and S.37(2)(b)(ii) of the Child and Family Services Act.

[5] Justice McKay found that the mother and her partner had a long history of drug abuse and instability of life style with parenting issues that flow from that type of issue.

[6] The mother and her partner had very little engagement with the child protection agency and both decided to deal with their drug issues on their own through the methadone program in Dryden. At that time Justice McKay found that there was a small bit of evidence that showed that the Applicant was progressing through the levels of methadone program. There was no evidence that the parenting issues had been addressed in a comprehensive way.

[7] He found that there was lack of engagement with the agency and lack of any detail as to her plan for herself the children. He stated at some point Ms. K. may be capable of parenting.

[8] The oldest child was placed with the Applicant's father, who was unable to care for both the oldest and youngest child. He is being considered as a possible adoptive placement.

[9] On a Status Review Application, the court must consider what is in the best interests of these children since the granting of the last Order.

Evidence of Karen Taylor

[10] Ms. Taylor is a resource manager of Anishinaabe Abinoojii Family Service. This agency became involved at the request of the mother to transfer the present file to their agency. The mother has given birth to a child since the children of these proceedings were apprehended. Anishinaabe Abinoojii Family Services has been monitoring the service plan with the mother and her current partner W.W.

[11] Kenora Rainy River Child and Family Services presented their case by Affidavit and I have reviewed the Affidavits of April Munroe-Wood, sworn January 27, 2012, a transcript of Justice McKay's reasons for judgement, dated March 26, 2010, the Voluntary Service Agreement, signed by all parties in November, 2010, the Affidavit of Rhonda Hall, sworn December 20, 2011, the Affidavit of Ruth Ann Eskritt, sworn December 28, 2011, the Affidavit of Cheryl Reddick, sworn January 11, 2012, the Affidavit of Shannon McFayden, sworn January 18, 2012, the Affidavit of Sherry Gabris, sworn January 23, 2012, the Affidavit of Terri Fedorchuk, sworn January 25, 2012, the Affidavit of Heather Struthers, sworn January 25, 2012 as well as the business records which have been filed.

[12] This agency is in the home bi-weekly and both parents come to their agency office frequently and are very co-operative.

[13] Anishinaabe Abinoojii Family Services has both un-announced and announced visits.

[14] The parties have engaged in Healthy Babies counselling and also are in the Methadone Clinic.

[15] This agency is very supportive of the mother and her application.

[16] Ms. Taylor indicates that the mother has been involved with individual counselling but there has been no domestic violence counselling and that the current child is approximately two years old and the mother is expecting another child in April of this year.

[17] It is admitted that the new child in the relationship will bring other stressors to the family and that children don't forget their mother. She is supporting a gradual return of the children to the applicant and her partner.

[18] This witness does not see it as a risk returning the children as she feels comfortable that the home set up by the Applicant and her partner is immaculate and well equipped. She does not know what is in the best interest of the two oldest children.

Evidence of Agnes Bachman

[19] Ms. Bachmann is a family service worker for Anishinaabe Abinoojii Family Services. She is working towards unification of this family. There has been a new service plan dealing with addictions and making sure that the current child is protected.

[20] It is her view that the mother is doing well in the methadone program and that they have attended counselling with Kate Kroker to address the mother's extreme jealously issue. There has also been work done with respect to domestic violence and she reports that this family is a success story. There have been no reports of any incidents and does not feel there are child protection issues.

[21] She is in the home at least once a month and sometimes twice. The home is clean, tidy and spacious with three bedrooms and a full basement.

[22] The Applicant and her partner have been working with Betty Chartrand with the Healthy Babies program.

[23] It is her view that the Applicant and her partner are capable of looking after the new child and other children.

[24] Both the mother and her partner have indicated that they want to return to school in September and will make arrangements with daycare.

[25] The mother and her partner W.W. have been struggling for three and one-half years with their addictions to prescription drugs but for the last three years have been on track with no relapses.

[26] This witness is not aware of the older children and that the mother has not had any contact since the granting of the Crown Wardship order in March of 2010.

[27] It is her view that re-integration should be done in stages and that there should be a trial period with testing and assessment. The oldest child is aware of her mother and asks about her and cries for her.

Evidence of W.W.

[28] Mr. W. and Ms. K. have been together since 2008. He described the present home and that they also have a car. He often has seasonal work and admitted to assaulting Ms. K. while intoxicated and was sentenced to forty-five days in jail. He has been addicted to cocaine, oxycotin and marihuana.

[29] He has been drug free for two years and is involved in the methadone program.

[30] He feels that he is making progress and will eventually withdraw from methadone over a two year period.

[31] He does not now consume drugs or alcohol.

[32] He has taken family counselling with Holly Maggrah Polkinghorne and the Family Health Team. He has a good relationship with the applicant's father, M.K.

[33] He indicates that he has gone to mental health counselling with Kate Kroker.

[34] His mother sometimes babysits for their current child and when he plays darts.

[35] He has been involved in the PAR Program and completed it. He has also taken anger management with Kathy McIvor.

[36] He is aware that his partner, R.D., is extremely jealous but she is becoming to trust him more and more. Jealously is still a factor which they are working on. He admits to assaulting her and stomping her head with his boot approximately two months after the granting of the Crown Wardship Order but there have been no further incidents.

[37] He is looking forward to having the children re-united and he and his partner are happy in a drug-free, alcohol-free home.

[38] He admits his frailties and weaknesses and is equally responsible for the children being made Crown Wards.

[39] He is taking couple's counselling to deal with his addictions to alcohol and drugs and how to care for a new baby and he goes to counselling with Kate Kroker once to twice a week for one-half to two hours.

Evidence of Carmen Moody

[40] She is the Partner Assault Response Program supervisor. This program is voluntary although Mr. W. was referred by the probation office.

[41] This witness reviewed the incidents of physical assault and abuse by Mr. W. on the Applicant. He acknowledged inflicting the injuries and caused the injuries to her. She described him as not a successful alumni of this program as he tended to put the onus and responsibility back on his partner. He indicated that he would go to Alcoholics Anonymous and the methadone program and tended to show some progress. She related occurrences that Mr. W. told her about in May of 2010 after the granting of the Crown Wardship Order.

[42] She recommended individual counselling as the power was based on conflict. Mr. W. showed anger management issues with warning signs as he has childhood issues with his mother.

Evidence of R.D.K.

[43] She stated that she has been drug free for two years and that she was severely messed-up in the past. She has lots of support and she has been working hard with Healthy Babies and counselling and meets with them every two weeks.

[44] She has also been going to counselling with Holly Maggrah Polkinghore for wellness counselling once every two weeks and parenting groups with Firefly.

[45] She would like to have her children returned to her to have the oldest children meet her newest child. She has been using the Dryden Resource Centre and the Toy Library and the oldest daughter particularly needs her mother.

[46] She gave birth to her youngest in Thunder Bay because she was taking methadone. That child was born in […] of 2010 and is approximately one and one-half years old. Her current partner is the father of that child.

[47] The oldest daughter is the subject of this application and is currently six years old and lives with her father in S.L.. The youngest child from a different relationship is in foster care in Dryden.

[48] She admits to a very bad past with drugs and was not able to parent. She admits her drug abuse and jealously issues and states that she was abused by her previous partner, Mr. St. A.

[49] At first her relationship with Mr. W. was not good as there was domestic violence. She is working with Holly Maggrah Polkinghorne and Kate Kroker. She is engaged in couples counselling with the Family Health Team. She has had no contact with her daughter for the last two and one-half years although she receives reports and updates from her own father.

Evidence of M.K.

[50] Mr. K. is the grandfather of the subject children and has custody of the oldest child. That child constantly asks about her mother and is in Grade One and is a Grade A student.

[51] He could not look after both children when they were apprehended and states that the oldest child knows who her mother is. He has seen a very significant change in R.D. since she started all of the counselling.

Reply Evidence of April Munroe-Wood

[52] Ms. Munroe-Wood is the supervisor of the Dryden protection worker with the Kenora Rainy River Child and Family Services. She assesses risk of addictions and violence for the mother's situation with her previous and present partner. She reviewed the history of abuse and the temporary care agreements which were attempted between 2008 and 2010.

[53] She described the youngest child being five years old and in a permanent and solid home. She states that the mother declined permanency planning when she was pregnant with the present child, R. and had extreme jealousy issues concerning her present partner.

[54] Ms. Munroe-Wood described the reluctance of Ms. K. and Mr. W. to engage with the service providers and cited examples of Ms. K.'s jealousy and desiring a new counsellor for Mr. W. as the one assigned was too attractive.

Position of the Applicant

[55] At the beginning of these proceedings Ms. K. was requesting that the children be returned to her. After hearing evidence and at the conclusion of the trial, she requests supervised access to have a gradual return of the children to her care. She states that she has made significant strides in her rehabilitation dealing with drug abuse, parenting ability and jealousy issues. She has engaged in the methadone program for a number of years and has been clean with urine testing along with her partner. She is in a committed relationship and has been for the last four years and has another child, R. A. W., born […], 2010 and is expecting fourth child at the time of trial. She admits that in the past there have been serious addiction problems and the parties began the methadone program in 2008. They have learned the lessons and benefits of being sober and need to treat each other with respect and compassion. They have tested clean at the methadone program and have support of their community with Anishinaabe Abinoojii Family Services.

[56] They have accessed the Dryden Native Friendship Children's Healing and Wellness Program with Jacklin Rundle.

[57] They have been meeting with Holly Maggrah Polkinghorne with the Ontario Native Women's Association to learn how they can grow as a couple. They have been attending Healthy Babies-Healthy Children Program with co-ordinator Brenda Chartrand and are of the view that they have made significant progress in their ability to parent and to live together as a couple.

Position of Kenora-Rainy River District Child and Family Services

[58] The agency does not agree that there has been enough progress in this families' ability to parent and to deal with each other. The agency is not convinced that Ms. K. has addressed her severe jealously issue and that the parties need individual counselling and not joint counselling. Further, Mr. W. has not taken ownership of the abuse.

[59] The agency stresses that there must be relapse prevention counselling with respect to the methadone clinic. This can be accomplished through the Dryden Regional Mental Health Clinic. Further, parenting must be done individually at first and then jointly.

The parties are not ready for an additional two children to the family as there is one child already in the family plus another one on the way.

[60] The agency refers the court to the Catholic Children's Aid Society of Metropolitan Toronto v. M. (C), [1994] 2 S.C.R. 165.

[61] In that case, the Supreme Court of Canada stated that once Crown Wardship was ordered, Section 58(1) imposes a presumption against access. Section 59(2) specifies the unusual circumstances in which access can be ordered. The burden is on the Applicant. In Catholic Children's Aid Society of Metropolitan Toronto v. M. (C), permanent placement had been established with a family who wished to adopt a child and the child refused to make contact with the mother. There was psychological bonding with the foster family.

[62] The facts are entirely different in the case at bar.

Court's Analysis

[63] It is apparent from the litigation that Kenora Rainy River District Child and Family Services has been focusing unduly on past occurrences and not recognizing the efforts made by the applicant and her partner to better themselves with a view to caring for the children and addressing the children's best interests. There is also a mistrust between Kenora Rainy River Child and Family Services and Anishinaabe Abinoojii Family Services with respect to the latter's ability to properly assist in this case.

[64] By illustration Kenora Rainy River District Child and Family Services insisted that the mother and her partner provide finger, toenail and hair samples in addition to the urine samples from the methadone clinic as a previous individual in another case tried to trick their agency. There is no evidence in this case that there has been any deceptions by the parents with respect to the results of the methadone clinic.

[65] Kenora Rainy River District Child and Family Services stresses and repeats the past bad conduct of the mother and her partner and exaggerates the parenting issues and fails to recognize the efforts and gains that these individuals have made separately and as a couple.

[66] Here the court must be satisfied pursuant to Section 58(2.1) that:

a) The relationship between the person that the child is beneficial and meaningful to the child; and

b) The order of access will not impair the child's future opportunities for adoption.

[67] I am finding that it is in the best interests of these children to have access to their mother and her partner for the following reasons:

i) The situation since the granting of Justice McKay's Order on March 26, 2010 has changed significantly. The mother and her partner have recognized their deficiencies. They are taking parenting counselling together. They have been drug free for approximately two years and are currently involved in the methadone program in a meaningful way with no breaches as evidenced by their negative urine samples. They have a positive relationship with Anishinaabe Abinoojii Child and Family Services.

ii) The Applicant and her partner are entitled to Indian status and have engaged in efforts to regain that aboriginal heritage.

iii) The Applicant's father (grandfather to these children) is very supportive of the his granddaughter renewing her relationship with the mother and he has seen a marked change in the mother's behaviour and attitude since the granting of the Crown Wardship Order.

iv) There is no evidence that either child has been placed for adoption or bonded with their current caregiver.

v) It is in the best interests of these children that Section 1(2) of the C.F.S.A. (Other Purposes) be recognized, particularly subsections 4 and 5.

Order

[68] It would be premature at this time to return the children to the mother and her partner without conditions. In these circumstances, it is in the best interests of these children to have supervised access to the mother and her partner for a period of six months on the following terms:

a) The supervision will take place at the mother's home at least two times per week for a minimum of three hours per visit, supervised by her father, M. K. or Holly Maggrah Polkinghorne or a worker from Anishinaabe Abinoojii Family Services who shall provide Kenora Rainy River District Child and Family Services with biweekly progress reports;

b) The Applicant and her partner, W.W. shall continue on with the methadone program and provide copies of any urine tests within three days after the results are provided to her to Anishinaabe Abinoojii Family Services and Kenora Rainy River District Child and Family Services;

c) The mother shall take counselling with a counsellor at Hoshizaki House to deal with abuse issues on a schedule and time table set up by Ms. K. and Hoshizaki House directly and reports will be forwarded to Anishinaabe Abinoojii Family Services and Kenora Rainy River District Child and Family Services forthwith;

d) The Applicant and her partner, W.W. shall not consume alcohol or non-prescription drugs except through the controlled methadone program;

e) The Applicant and her partner, W.W. shall take relapse prevention counselling through the Dryden Regional Mental Health Committee and provide copies of any reports to Anishinaabe Abinoojii Family Services and Kenora Rainy River District Child and Family Services within three days after the sessions are complete and reports have been prepared.

Released: May 1, 2012

Signed: "Justice Peter T. Bishop"