Court File and Parties

Court File No.: Brampton 90/12 Date: 2012-05-29 Ontario Court of Justice

Between: D.B., Applicant

— And —

J.W., Respondent

Before: Justice P.W. Dunn

Heard on: 23 May 2012 for an Uncontested Trial

Reasons for Judgment released on: 29 May 2012

Counsel:

• Mel Lubek, Esq., for the applicant
• Ms. Hilborn, Duty Counsel, assisting the respondent

Reasons for Judgment

P.W. DUNN, J.:

Background and Parties

[1] D.B., as applicant, is the father of A.W.-B., born […] July 2010, and J.W., the respondent is the mother.

[2] D.B. filed an Application dated 27 January 2012 under the Children's Law Reform Act (the CLRA) file 90-12, in which he sought custody, child support and a claim for special expenses. The Application was adjourned to 23 May 2012 to be dealt with at the same time as a proceeding brought by the Children's Aid Society of the Region of Peel (the society) (file 20138/10). The original Protection Application, dated 18 October 2010 was presented by the Children's Aid Society of Toronto because at the time the child was hospitalized in Toronto. The case was transferred to this court and under the aegis of the society because the applicant and respondent live in Peel Region.

Child Protection Background

[3] On 13 October 2010, the child had unexplained injuries of a serious nature. A.W.-B. was apprehended under the Child and Family Services Act and placed in a foster home during society and police investigations.

[4] Since the start of the society's case, the applicant and the respondent had access to A.W.-B. supervised by the society. During the access, the parents were assessed as to their parenting ability. They also took part in the Pathways Supervised Access Program (Pathways). This allowed for caregiving instruction in a "hands-on" atmosphere. Since the parties lived separately, each person was assessed individually. It was understood by the society that each parent would be planning separately for the eventual return of the child to her or him.

Pathways Assessment

[5] The assessments of the parents in the summer of 2011 by Pathways was thorough and in depth. D.B. and J.W. were nineteen years old at the time. The report about J.W. stated in part:

[J.W.] has been unable to demonstrate that she has been able to identify the impact of her parenting on A.W.-B.. She continues to deny and minimize the risk factors which brought him into care. Her lack of insight regarding the past and present protection concerns are indicators that when under stress or is preoccupied, she would continue to use maladaptive and unsuccessful strategies that she has utilized in the past. Therefore it is recommended that [J.W.] not be in a primary caregiving role and that she have supervised access with her son.

[6] Pathways reported about D.B.:

It was noted by the assessors that he is highly attuned to A.W.-B.'s signals and responds to them promptly and appropriately. He is able to see things from A.W.-B.'s point of view; his perceptions of A.W.-B.'s signals and communications are not distorted by his own needs and defences. It was reported that [D.B.] has well-developed interactions with his son; these transactions have been observed to be consistent and satisfying in meeting A.W.-B. in a sensitive and (sic) contingent manner.

[7] Pathways' report concluded about D.B.:

…It is recommended that [D.B.] be given the opportunity to have A.W.-B. return to his care on a permanent basis. While keeping the child's best interests in mind, A.W.-B. is at the age and stage (six to twelve months of age) when he is determining his level of attachment hierarchy. Throughout this assessment period, [D.B.] has been able to demonstrate and reinforce a secure relationship with his son which promotes a healthy and secure attachment; thus in A.W.-B.'s world, he is placing his father at the top of his hierarchy.

Therefore the reunification of A.W.-B. and his father should be done in a timely manner.

Placement and Supervision

[8] Shortly after the Pathways reports were received by the society, this court on consent of J.W. and with the society's approval, placed A.W.-B. in D.B.'s care under six month supervision by the society. Access by J.W. was to be supervised by the society or someone approved by it.

[9] The placement with D.B. was successful. He resided with his parents who supported him in his child care.

[10] There were problems with irregularity in J.W.'s access. On 23 November 2011, an order was made that J.W. would have to call the society to confirm her attendance for access on each day.

[11] On 29 February 2012, in child welfare proceedings, Mr. Moore on behalf of the society stated that if D.B. were to obtain custody under the CLRA, the society would consider withdrawing its protection application.

Procedural Issues

[12] Mr. Price was counsel for J.W. in the society's case. I note that the society's counsel was agent for Mr. Price on the society's court dates of 17 November 2010, 9 February 2011, 25 May 2011, 24 August 2011 (Mr. Price was present earlier before the case started), 23 November 2011 (Mr. Price was present earlier before the case started), 29 February 2012 and 23 May 2012. In the endorsement of 29 February 2012, I wrote:

…Mr. Price is expected to act for J.W. on the CLRA file 90-12. Mr. Price does not know J.W.'s position on file 90-12.

On 23 May 2012, Mr. Lubek advised the court that Mr. Price was never retained by J.W. to represent her on the CLRA file 90-12.

[13] The society's case was adjourned to 11 July 2012 in order to allow time for this court to consider the Application by D.B. for custody.

CLRA Application and Default

[14] Turning now to proceedings under the CLRA, on the first appearance in clerk's court on 1 March 2012, there was an adjournment to the society's court date of 23 May 2012. On 23 May 2012, Mr. Lubek wished to have J.W. noted in default and proceed with the applicant's Form 23C Affidavit for an uncontested trial. The Application had been served on J.W. on 28 January 2012 and no responding material was filed.

[15] Ms. Hilborn requested an adjournment for J.W. to obtain legal representation to assist her to defend D.B.'s case. The request was opposed by Mr. Lubek because:

1. J.W. had almost four months after service to apply for legal aid.
2. Apparently J.W. did not question Mr. Price about file 90-12 when he was already representing her in the society's case 20138-10.
3. It is in the child's best interests that his future be decided without further delay.

I agree with Mr. Lubek's submissions. J.W. is noted in default with respect to file 90-12.

Society's Support

[16] D.B. filed a letter dated 15 May 2012 from the society. It stated:

The society is in support of D.B.'s claim for sole custody. The society has been monitoring child, A.W.-B. in his father's care since August 2011 and to the best of the society's knowledge, there has been no child protection concerns with the care he has provided…

Reasons for Custody Award

[17] Custody will be granted to D.B. because:

1. He demonstrated through the Pathways Assessment and the society's observations since August 2011 that he can very adequately care for his son.
2. The Pathways assessment signalled serious inadequacies in J.W.'s parenting ability.
3. J.W. has missed a significant number of access visits.

Final Orders

[18] The following orders will issue:

Final Orders:

1. D.B. shall have sole custody of A.W.-B., born […] July 2010.

2. Access by J.W. is in the discretion of D.B. and the society as to frequency, duration, place and supervision.

3. J.W. is prohibited from removing the child from the Greater Toronto area without a further court order or the written consent of D.B.

4. At any time, without the consent, signature or permission of J.W.:

   • (a) D.B. may apply for and retain a passport for the child, and
   • (b) Remove the child from Canada for vacation purposes.

5. J.W. is ordered to keep D.B. advised about up-to-date contact information including residential address, telephone numbers and email addresses.

6. J.W. is ordered to serve Mr. Lubek and file in court by 22 June 2012, the following:

   • (a) a sworn up-to-date financial statement,
   • (b) proof of income earned to date,
   • (c) if J.W. is not working, a list of places and addresses where she sought work,
   • (d) if J.W. attends school or intends to attend school, J.W. is to provide full particulars of school arrangements to include fees, courses and course completion dates,
   • (e) evidence from a physician about J.W.'s ability to work full time.

7. By June 1st in each year, starting 1 June 2012, J.W. is to give D.B. a copy of her last year's income tax return, together with a notice of assessment or reassessment.

Child Support and Special Expenses

[19] There will be no order for J.W. to pay child support at this time, nor will there be an order for her to contribute to s.7 expenses, until much more is known about her financial and school status and her health. On the return date, the court will consider D.B.'s request that a minimum wage income of $21,300 be imputed to J.W.. That may turn out to be an unrealistic suggestion, depending on J.W.'s disclosures.

[20] D.B. requests J.W. to contribute to special expenses but he has not provided any information yet as to particulars.

Costs

[21] The request by D.B. for costs is reserved until the return date. I trust D.B. will be practical if he requests costs, taking into account J.W.'s financial situation.

[22] Neither party will earn any significant income at the present time. It would be helpful if any child support order against J.W. was not so onerous so as to prohibit her from purchasing 'extras' for the child.

Released: 29 May 2012

Justice P.W. Dunn