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 Information
Court File No.: C436-09, C437-09
North Bay
Ontario Court of Justice
In the Matter of the Child and Family Services Act, R.S.O. 1990, c. 11
Parties
Between:
Children's Aid Society of Nipissing and Parry Sound
Ms. Heather Zuck, for the Applicant
— AND —
T.C.1 Not appearing Respondent
T.W. AND R.W. Self-represented Respondents
G.T. AND M.T. Mr. Hugh McLachlan, for the Respondents Respondents
Heard: April 30, May 1, 2, 3, 2012
The Honourable Mr. Justice Greg P. Rodgers:
Decision
[1] This case focuses on the best interest of two little girls; M.M.C. and R.L.C.. M.M.C. is six and R.L.C is almost four. The girls are full siblings. Their mother is T.C.1. Their father is M.C.. The sisters have different surnames because when R.L.C was conceived T.C.1 was in a relationship with both M.C. and T.C.2 and paternity was uncertain. It is now established that Mr. C. is the father of both girls. T.C.1 has two older children, D. and J. who reside in the custody of their father L.C..
[2] M.M.C. and R.L.C have two sets of grandparents. G.T. and M.T. are their paternal grandparents. To be precise M.T. is their grandmother and G.T. is her husband. R.L.C and M.M.C. live with the T. in Mattawa. They were placed there by the Children's Aid Society.
[3] T.W. and R.W. are the girls' maternal grandparents. T.W. is their grandmother. R.W. is her husband.
[4] The Children's Aid Society has had a long history with these children. T.C.1 has persistently been an irresponsible parent. She abuses drugs. Indeed drug abuse has been the central theme of her life since her early teens.
[5] The CAS is seeking a final order for Crown Wardship without access so these children can be adopted. The agency sees Mr. and Mrs. T. as prospective adoptive parents. It is clear that the children thrive in their care.
[6] T.C.1 has not appeared at this trial. Indeed, in October 2011, she advised the CAS by voice mail in a profanity laced message that she wanted nothing to do with these proceedings. This was immediately after she was served with notice that the CAS was seeking Crown Wardship without access.
[7] The children have been out of Ms. L.C.'s care since February 2010, almost two and a half years ago. Ms. L.C. continues to abuse opiates. Most telling she has not attended access visits since September 7, 2011. Unfortunately, T.C.1 remains mired in a lifestyle that is inconsistent with responsible parenting. Moreover, I am convinced that it is in the girls' best interest that T.C.1 has no contact with them.
[8] Mr. and Mrs. W. at the outset of this trial requested an order that the children be placed in their custody. After some evidence was called they conceded that they were not able to take custody of the children. They requested that the court grant custody to the T. and make a provision for the W. access to the children. They are opposed to a Crown Wardship without access order as they are concerned that such an order would sever their opportunity to enjoy a relationship with their granddaughters.
[9] The real issue here is whether there should be an order for Crown Wardship without access to permit adoption (presumably with the T.) or whether there should be a custody order pursuant to S57.1 of the Child and Family Services Act in favour of the T. with access to Mr. and Mrs. W..
[10] Mr. and Mrs. W. are not without their own issues. Both have serious health problems. T.W. has mobility limitations that would impact on her ability to properly supervise these active children. R.W. has a volatile temper. He handles frustration poorly. He has been verbally abusive of several CAS workers. He threatened to strike Kristine Smith a primary protection worker for this family. Both Mr. and Mrs. W. are chronic complainers. They habitually find fault with authority figures and constantly blame others. They have approached these proceedings from a "grandparent's rights" basis rather than from a child's best interest.
[11] For far too long they appeared to remain loyal to T.C.1 well after it was obvious that she was not a viable parent.
[12] The W. for all their rough edges and unpleasant attitude are devoted grandparents. Mr. R.W. has never directed his anger at the children. The W. have been faithful in attending access even when they disagreed that such access needed to be supervised. They were the primary care givers to M.M.C. and R.L.C as well as their two siblings for several months in late 2009 and early 2010.
[13] An order for Crown Wardship to permit adoption would potentially cut off these children from their maternal grandparents. S.C., the S.54 assessor, testified that such an event would be a serious loss for the children. In this case R.L.C and M.M.C. have already lost much. Their mother has shown little interest in them. Their father has never shown any commitment to them. The loss of a set of grandparents with whom they once lived and with whom they have bonded would be a significant blow.
[14] Ms. Zuck on behalf of the CAS argues that a Crown Wardship order without access would have the desired effect of preventing T.C.1 from re-surfacing and re-litigating for an opportunity to become re-involved with her children. A S.57.1 CFSA custody order is deemed by virtue of S.57.1(2) to be made under section 28 of the Children's Law Reform Act. As such a party can bring a motion to change the order after six months or upon a material change in circumstances. The argument advanced is that an order for Crown Wardship without access would allow for permanency while a S.57.1 custody order would not.
[15] That may be so, however, such certainty would be at the expense of severing the girls' relationship with their grandparents, Mr. and Mrs. W..
[16] Section 1.(2) of the Child and Family Services Act reads in part:
"The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children are: … 2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered."
[17] I conclude that a S57.1 CFSA custody order with appropriate safeguards is in the best interest of these children. Such an order will have the effect of placing the children in a home where they are thriving. It will maintain the sisters' connection to their maternal grandparents with whom they have a loving and healthy relationship. I am concerned that an order for Crown Wardship without access would eventually result in the severance of this relationship. It is unlikely that any adoptive parents (including the T.) would voluntarily wish to maintain contact with the W. given their tendency to be difficult. A custody order could also prohibit any contact between T.C.1 and the children.
[18] It should be clear that if it were not for the children's beneficial relationship with Mr. and Mrs. W. I would be making an order for Crown Wardship without access. T.C.1 should not under any circumstances have any contact with these children.
[19] In conclusion, I find that it is in the children's best interest that they remain in the custody of Mr. and Mrs. T. and that they have access to Mr. and Mrs. W.. Thankfully, these children have loving and responsible grandparents on both sides. I conclude that access need not be supervised as long as both Mr. and Mrs. W. are present. Mr. R.W. is more mobile than his wife and should be able to adequately respond to the Children's needs in any emergency.
Final Order
[20] There shall be a final order pursuant to S.57.1 of the Child and Family Services Act with the following terms:
M.T. and G.T. shall have custody of the children M.M.C. (D.O.B. [...], 2006) and R.L.C. (D.O.B. […], 2008).
T.W. and R.W. shall have access to M.M.C. and R.L.C the third weekend of each month from Friday at 6:00 p.m. to Sunday at 6:00 p.m. This access shall be unsupervised. T.W. shall not be alone with the children given her mobility limitations.
T.W. and R.W. shall have reasonable weekly telephone contact with the children.
M.T. and G.T. and T.W. and R.W. may agree to additional or alternate access.
T.C.1, M.C., T.C.2 shall have absolutely no contact with these children.
M.T. and G.T. and T.W. and R.W. shall notify the CAS immediately if T.C.1, M.C. or T.C.2 make any attempt to contact these children.
Released: August 14, 2012
Signed: "Justice The Honourable Mr. Justice Greg P. Rodgers"