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 one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

45.— (8) Prohibition: identifying child.

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.

45.— (9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (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.: 12-00057014

Date: 2012-10-24

Ontario Court of Justice

Between:

Children's Aid Society of Toronto, Applicant,

— AND —

J.M. and D.O. Respondents.

Before: Justice C.J. Jones

Heard on: October 16, 2012

Reasons for Decision released on: October 24, 2012

Counsel:

• Estee Garfin, for the applicant society
• William Sullivan, for the respondent mother
• Victoria Starr, for the Office of the Children's Lawyer, legal representative for the children
• No appearance by or on behalf of the respondent father, D.O. (not yet served with notice)

Decision

C.J. Jones, J.:

Introduction

[1] This is a temporary care and custody motion in relation to the child, A.M.-2 born […], 2002, (referred to as A.M.-2 or the child) currently 10 years of age. A.M.-2 and her older sister, A.M.-1 born […], 1998, age 14 years, were both apprehended from the care of the respondent mother (referred to as the mother) on June 27, 2012 by the applicant society (referred to as the society).

[2] On September 4, 2012 the older daughter, A.M.-1, left her society placement and returned to her mother's residence. The mother did not return A.M.-1 to the society's care, notwithstanding the terms of the temporary order, then in effect, such that A.M.-1 remained residing with her mother in contravention of the court order. The society did not re-apprehend A.M.-1 by force, expressing concern about the emotional impact this would have upon A.M.-1 and the difficulties that would be encountered in maintaining A.M.-1 at any placement that was not secure. Ultimately, the society agreed to attempt to work with the mother in relation to the plan for A.M.-1, and on October 4, 2012 the older child was returned to the mother's care, subject to the terms of a temporary supervision order. The younger child, A.M.-2, has remained in the temporary care of the society.

[3] The mother's position is that the child should be returned to her care subject to terms of a supervision order. Through counsel, the mother contends that any risk to A.M.-2 can be adequately addressed by way of the terms of a temporary supervision order. The child's counsel supports the position of the mother. She advocates for strict supervision terms to address the protection concerns that have been identified by the society. Ms. Starr advises that it is A.M.-2's strong wish to return to the care of the mother immediately. The society argues that there is a risk that A.M.-2 is likely to suffer harm, should she be returned to her mother's care at this stage, and that the child cannot be adequately protected by the terms of a supervision order. The society therefore argues that A.M.-2 should remain in society care at this stage.

Legal Test

[4] All parties agree on the legal test that is applicable to this temporary care and custody motion pursuant to s. 51(3) of the Child and Family Services Act (referred to as the Act). This test is set out in the case of Children's Aid Society of Toronto v. C. (Y.), 2007 ONCJ 479, [2007] O.J. No. 4094, 171 A.C.W.S. (3d) 883 (ON. C.J.) wherein the court refers to and adopts the test articulated by the court in Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273, 97 A.C.W.S. (3D) 939, 2000 CarswellOnt 2156 (ON.S.C.) as follows:

"At a temporary care and custody hearing the onus is on the society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if the child is returned to the mother, it is more probable than not that she will suffer harm. Further, the onus is upon the society to establish that the child cannot be adequately protected by terms or conditions of a supervision Order."

Protection Concerns Identified by the Society

[5] The society takes the position that there are at least seven bases upon which the society has identified protection concerns. From the society's perspective, the concerns are as follows:

1. The dreadful state of the home, at the time of the apprehension of the girls.
2. The exposure of the children to domestic violence in the mother's household and the impact this has had upon the children.
3. The child's poor school attendance.
4. Concerns regarding the health and behaviour of the older child, A.M.-1, and the effect this has had on the younger child, A.M.-2.
5. The mother's failure to follow through with services required to address the identified concerns.
6. The mother's lack of compliance with the terms of previous court Orders, coupled with her negative stance towards the society.
7. The mother's lack of boundaries with the children.

State of the Mother's Home

[6] In relation to the state of the mother's home, mother's counsel has provided evidence that this issue has been addressed and resolved by the mother. Following the apprehension of the children, the mother took very considerable steps to repair, unclutter and disinfect the home. She also removed a large number of animals from the premises, including a number of dogs, cats and at least one rabbit. These animals had contributed to the previous state of disarray in the home. The mother admits that she had more animals residing in the home than she was able to manage. The society concedes that the mother has now addressed the deplorable state of the family home that existed at the time of the apprehension. The municipal inspector has also approved the state of the home.

[7] It is evident to the court that the mother has made great strides in improving the physical state of the premises. She has taken steps to address the poor state of hygiene and the physical safety issues that previously existed in the home. The concern, for the court, is the unanswered question as to why the mother's functioning was apparently so poor, at the time of the apprehension of the children, that she had allowed the home to deteriorate to such a state that it was virtually unfit for habitation. This question remains unanswered in the material filed on this motion.

[8] The society has requested that the mother engage in a psychological assessment, to identify whether there is any underlying mental or physical health issue affecting the behaviour and functioning of the mother. The court is of the view that it would be a helpful step for the mother to engage in such an assessment, as part of her overall plan to have A.M.-2 returned to her care. This may shed some light on the unanswered question, referred to above, so that strategies may be put in place to address any areas of concern.

Domestic Violence

[9] In relation to the issue of domestic violence, the society refers to the mother's volatile relationship with Mr. I.C., which was fraught with turmoil, with conflict often occurring in front of the children. There are a number of reported incidents in the society's material wherein Mr. I.C. was alleged to have assaulted the mother. In addition, there was an incident in February 2011 when Mr. I.C. allegedly assaulted the older child, A.M.-1 as well.

[10] The society notes that it was a further incident of domestic conflict involving Mr. I.C. in late June 2012, that led to the apprehension of the children. At the time of the incident, a large window on the main floor of the home was broken, with the children reporting that Mr. I.C. had smashed the window. A.M.-1 reported to the society worker that Mr. I.C. had threatened to kill her, and that she was afraid he would hurt her or her mother. The children reported that Mr. I.C. had choked the mother the previous week because he didn't want her taking the dogs to the pound. A.M.-2 reported that Mr. I.C. drinks every day, becomes angry when he is drunk, and that he would yell at her and direct verbal abuse towards her.

[11] In response, the mother indicates that she has ended her relationship with Mr. I.C., and that she contacted the police in August 2012 when Mr. I.C. entered her home by force, resulting in a charge against Mr. I.C., for which he is currently incarcerated. Mr. Sullivan, on behalf of the mother, also points to the mother's evidence, wherein she is now accessing counselling for the past domestic violence. The mother indicates that she is now recognizing the detrimental impact this has had upon her daughters. In her affidavit material, the mother indicates that she has apologized to the children for the past domestic conflict that they have lived through.

[12] Counsel for the child also refers to evidence from Mr. I.C.'s criminal and immigration counsel, to the effect that Mr. I.C. is likely to be deported, once his current criminal charges are dealt with, and that he is unlikely to be released.

[13] Both counsel for the mother and counsel for the child therefore take the position that any risk in relation to Mr. I.C. has been neutralized, due to his current incarceration and his probable ongoing detention on the immigration warrant. Certainly, it would appear that there is no immediate risk to the mother or the girls, posed by Mr. I.C., given these circumstances.

School Attendance

[14] In relation to A.M.-2's school attendance, the society notes that there has been a very poor pattern of tardiness and non-attendance over a number of years while A.M.-2 was in her mother's care, with A.M.-2 having been absent for 39 days of school (equivalent to approximately 2 months of school) and late on 29 occasions (equivalent to another month and a half of classes) during the most recent academic year 2011-2012, her Grade 4 year. A similar pattern was noted in A.M.-2's school records for virtually every year she has been attending school, dating back to Kindergarten. A.M.-2 is already far behind her grade level at school and requires an Individual Education Plan (IEP). However, she cannot benefit from the IEP if she is not in regular attendance at school.

[15] A.M.-2's poor school attendance is particularly concerning given that her older sister, A.M.-1, also had a pattern of irregular school attendance. Ultimately, beginning at approximately age 10 or 11 years, A.M.-1 stopped attending school altogether. Although the mother was charged with truancy in 2009, she apparently could not ensure her daughter's regular attendance at school, even after the charge was addressed in court. The society's affidavit indicates that an order had been made by the court under the Education Act, requiring that the mother ensure that A.M.-1 attends school, however A.M.-1 had nevertheless ceased attending after the order was made. Finally, in the 2011-12 school year the mother obtained permission from the Toronto District School Board for A.M.-1 to be home-schooled, and thereby excused from attendance at school.

[16] A.M.-2's poor school attendance raises concerns as to the mother's level of functioning in a parenting role over the years when the school attendance issues arose. Given that the mother was frequently unable to ensure that her young child attended school regularly and on time in the past, the court questions whether there may be underlying factors that are impacting negatively upon the mother's parenting ability. Any such factors would need to be addressed in any supervision order to ensure the success of any plan that would involve the return of A.M.-2 to the mother's care.

[17] The child's counsel agrees that it is unacceptable that A.M.-2 has missed so much school. She suggests that strict terms, requiring regular school attendance, could be incorporated into a supervision order to address this issue.

[18] The court agrees that it would likely be possible to compel A.M.-2's regular school attendance using very strict terms of supervision, that would establish clear expectations of both the mother and A.M.-2 in this regard. However, any supervision order granted by this court would need to be more compelling than the previous order of the court granted under the Education Act pertaining to A.M.-1, given that the Education Act order was not sufficient to ensure the older child's regular attendance at school. Such terms of supervision would not, however, cast any light upon any factors that may be impacting the mother's competency as a parent, or in identifying the treatment and services that would assist the mother in addressing any areas of concern. If the child's poor school attendance is a result of a broader underlying issue, other concerns are likely to emerge in other areas of the mother's parenting, unless the broader issue is addressed.

A.M.-1's Mental-Emotional Health and Behaviour

[19] The society raises questions regarding A.M.-1's mental-emotional health and her behaviour, and the impact that these factors may have on A.M.-2, should the younger child also be returned to the mother's care. This is an area of concern that also causes the court uneasiness for A.M.-2's safety. While A.M.-1 no doubt has many positive qualities, the affidavit material filed on this motion raises significant concerns regarding A.M.-1's behaviour towards her younger sister and the mother's ability to effectively manage both children.

[20] As well, A.M.-1, who is currently in her mother's care under a supervision order, is clearly a child who has significant special needs. The court is concerned that the high level of A.M.-1's needs may entirely consume the mother's time, energy and parenting abilities. To add the needs of an additional child, at this time, may very well overwhelm the mother and place demands upon her that are beyond her capacity. It appears that this has likely been the dynamic in the past.

[21] The materials before the court include reference to a number of prior occasions when the older child, A.M.-1, refused to work with professionals to address her mental and emotional issues. The mother has agreed, in her affidavit sworn 12 October 2012, that she has capitulated to A.M.-1's obstinance and refusal to participate with professional services, even though the professional involvement was for A.M.-1's physical and emotional well-being. While the mother has pledged to properly address this in the future, to ensure that appropriate resources are accessed to address A.M.-1's behaviour, she has had limited success in the past in attempting to exert her authority as a parent over A.M.-1. The evidence is clear that the mother has taken the path of least resistance in relation to setting limits and structures for A.M.-1.

[22] It appears that, at the time of the apprehension, the mother was not able to consistently provide a safe and secure environment for the two girls and she was not adequately meeting their needs. The court would wish to see a period of time during which the mother demonstrates her ability to appropriately address the needs of the older daughter, A.M.-1, before adding the responsibility of another child to her care.

[23] The foster mother also reported relentless bullying of the younger child, A.M.-2 by the older child, A.M.-1 over the summer of 2012, to the degree that the society was required to take steps to split the girls up in their placements, for A.M.-2's safety. The foster mother described that, in July and August 2012, A.M.-1 was constantly harassing and insulting A.M.-2 throughout the day, using verbal insults and epithets towards her younger sister. She described that A.M.-2 would typically cower away from her older sister when this occurred.

[24] The mother addresses these concerns by acknowledging that her girls have experienced some difficulties in their relationship and some ongoing rivalry, although she maintains that they are very close and loving to each other. This was certainly not the flavour of the observations of the foster mother, regarding the children's relationship.

[25] A.M.-1 also appears to struggle with self-restraint. The society worker described that A.M.-1 has disrupted access visits with A.M.-2, storming out of the September 24, 2012 visit with such intensity that she made the walls of the room shake.

[26] The society's material includes reference to other disturbing behaviour of A.M.-1. The society affidavit details that in November 2009 the society received a call from the Toronto Police Service, to advise that they had been called to the home due to a fight having broken out between the two children. Police advised that A.M.-1 had grabbed a knife and went after A.M.-2. In their follow-up to this referral, society records indicate that A.M.-1 was to be assessed at the Shoniker Clinic. A referral had been made by Dr. Edgerley on June 16, 2009 for the older child's defiant behaviour, among other reasons. Although the records of the Shoniker Clinic indicate that A.M.-1 attended on January 12, 2010, the file at the clinic was closed when the mother failed to schedule the required follow-up appointments.

[27] The society's evidence indicates that, at the time the children were apprehended in late June 2012, there was a hole in the wall of the mother's home, where A.M.-1 had reportedly used a baseball bat to smash the wall. A.M.-1's bedroom in the home had been painted red, upon which A.M.-1 had scrawled obscene words and phrases, as well as suicidal comments, using a black marker. A.M.-1 was described as becoming easily agitated.

[28] The court is of the view that, at the current time, A.M.-1 poses a risk of significant emotional harm to A.M.-2 through her intimidating and bullying behaviour. As well, the court is of the view that A.M.-1 also presents a risk of physical harm to A.M.-2 through her lack of self-regulation and her aggressive behaviour. The mother has shown limitations in her ability to address A.M.-1's issues in the past. Adding the responsibility of another child to the mother's load, at this time, is likely to overburden the mother's personal reserves and work to the detriment of both girls.

Failure to Obtain Services

[29] The mother's failure, in the past, to follow-through with services recommended for the children, has been referred to above. The terms of the current temporary supervision order relating to the older child require the mother to ensure that A.M.-1 attends and follows through with any psycho-educational or psychological assessments arranged by the society. The mother is to follow through with all recommendations arising from such assessments of A.M.-1. The society indicates that it has expedited the request for psychological assessments of both children, and that they are currently scheduled for November 2012, to be performed by Dr. Fitzgerald.

[30] Mr. Sullivan, for the mother, indicates that the mother has now agreed to the referral of both children for assessments and has signed consents for this to occur. While this is an encouraging recent development, the evidence is clear that for several years the difficulties of the children, particularly A.M.-1, were not effectively addressed. Following the completion of the assessments, steps will need to be taken to put any necessary supports in place for the family, before contemplating a return of A.M.-2 to the mother's care, to ensure the success of the mother's plan for both daughters.

[31] As well, under the terms of the temporary supervision order, the mother is to ensure that both she and A.M.-1 attend all of their appointments with their counsellor at Tropicana and follow all recommendations made by the counsellor. The evidence from the Tropicana counsellor indicates that the mother has attended two sessions at that agency and that the mother presented as receptive to the counselling process, indicative of a positive beginning with this service. It is hoped that, once the mother has made further progress in this direction and once the counsellor has been able to establish a therapeutic relationship with the older child, the mother will be better able to establish limits for the children and the level of risk A.M.-1 presents towards her younger sister will subside.

Failure to Abide by Court Order or Cooperate with Society

[32] The society also suggests that the mother has not shown deference, in the past, to the terms of court orders, and that she has not worked cooperatively with the society. The society notes that the mother's former partner, Mr. I.C., had previously been bound by the terms of a criminal court order, prohibiting him from residing with the mother. Those terms expired in May 2012. The society expresses concern that the mother allowed Mr. I.C. to return to the home following the expiration of those terms, notwithstanding the society's clear expectations, expressed to the mother, that Mr. I.C. should not be permitted to do so.

[33] The society also points to statements made by the children to the society worker on June 27, 2012, referred to in paragraph 22 of the affidavit of Ms. Mancao, sworn June 29, 2012, to the effect that Mr. I.C. had been living in the basement of the home for the previous two years, including during the time that his criminal court conditions prohibited any contact with the mother. The society points to this evidence, in support of its contention that the mother may not attentively abide by the terms of a court order, including the terms of any temporary supervision order that might be imposed by this court.

[34] In response, mother's counsel indicates that there is a lack of differentiation, in the evidence, as to whether Mr. I.C. was present in the mother's home on the basis that he was cohabiting with the mother in an ongoing relationship, or whether he was simply a basement tenant of the same dwelling where the mother and the girls were residing. It is the view of the court that this makes little difference, as it would be difficult to comprehend how there could be any assurance that there would be no contact between Mr. I.C. and the mother, if they were both residing in the same dwelling house, even if they were in separate quarters.

[35] Moreover, the evidence of the society worker, Ms. Mancao, is clear that the mother reported to her in May 2012 that Mr. I.C. was residing with a friend in north Scarborough, a statement that was subsequently contradicted by the information reported to Ms. Mancao on June 27, 2012 by the child, A.M.-1. This evidence suggests that the mother has been less than candid with the society in the past.

[36] The society also maintains that the mother did not respect the terms of the temporary, without prejudice order of Spence, J. wherein the children were placed in the care and custody of the society, subject to access to the mother. The society points to the fact that the mother did not take steps to call the society or to facilitate the return of A.M.-2 to the society's care, when the younger child left her placement and made her way to the mother's home. The police subsequently attended at the mother's home and returned the child to her placement.

[37] In response, the child's counsel points to the fact that the older daughter, A.M.-1, contacted the foster mother to notify her that A.M.-2 was at the mother's home, and suggests that this call would have been made at the direction of the mother. Even accepting this to be the case, the call to the foster mother, to notify the society of A.M.-2's whereabouts, ought to have been made by the mother, as the adult and the parent, rather than from the older child. It is not appropriate for A.M.-1 to be drawn into the stand-off between the mother and the society that was developing over the placement issues pertaining to A.M.-2.

[38] The society expresses reservations as to the degree to which the mother is prepared to work with the society. The society's evidence indicates that, during an access visit, the mother took the child, A.M.-1, to the Emergency Dept. at the Scarborough Hospital, as A.M.-1 was complaining of chest pain, a headache and tingling in her arms. The society affidavit states that, upon returning A.M.-1 to the group home, the mother refused to provide group home staff with any information regarding the findings or follow-up recommendations of the hospital for A.M.-1. This manner of response, by the mother, is likely to make the society uneasy about the future prospects of working cooperatively with the mother.

[39] The agency also points to the mother's voice mail message, left for the former worker, Ms. Mancao, on September 5, 2012, immediately following A.M.-1's return to her mother's care and the older child's refusal to return to her group home placement. The details of this voice mail message are referred to in the affidavit of Ms. Wint, the society's current worker. Ms. Wint recounts that in her voice mail message to Ms. Mancao, the mother stated that the older child would not be going back to the group home and that she (the mother) would no longer be cooperating with the society. According to Ms. Wint's evidence, in the same message, the mother referred to Ms. Mancao as a "sick child abuser", among other disparaging comments. Around the same time, the mother left messages for the children's former counsel, appointed through the Office of the Children's Lawyer, calling him "sick and deranged" and refusing to permit him any further meetings with the children. These communications resulted in the need to appoint a new lawyer for the children on the file.

[40] On a temporary care and custody motion, pursuant to s. 51(7) of the Act, the court may admit and act on evidence the court considers reliable and trustworthy in the circumstances. The court finds this evidence of Ms. Wint to be reliable and trustworthy.

[41] In her reply affidavit sworn October 12, 2012, the mother indicates that she is not a perfect mother. She states that she loves her daughters tremendously, a fact that the court does not doubt. She agrees that it is true that, at times, she has been harsh in her statements to the society workers, and she apologizes. She indicates that she was trying to advocate for her children and that she recognizes that, in retrospect, at times she might not have chosen the best words. She maintains that she has been frustrated with the society's approach when she has attempted to address the society's concerns in good faith. Mr. Sullivan submits that, in child protection cases, parents often do not respond to the society in a manner that puts their best foot forward.

[42] The court can certainly appreciate that parents may find it stressful and, at times, frustrating to deal with the society, particularly in circumstances where their children have been apprehended. Parents cannot be expected to be flawless, in their interaction with society workers. However, in the context of this case, particularly given the fact that the mother was tacitly condoning the breach of the temporary, without prejudice order of Spence, J. in relation to the older child, such a direct and overt statement of her refusal to cooperate with the society and her intention to ignore the court order is concerning.

[43] If the court were to accept the submissions of the mother to return the younger child to her care, the only means open to the court to ensure A.M.-2's protection would be by way of terms of supervision, to be incorporated into a court order. In the face of recent evidence of the mother's open and unequivocal statement of her intention not to comply with the court order nor to cooperate with the society, the court is left with few alternate options.

Inappropriate Boundaries

[44] Finally, the society raises concerns of inappropriate boundaries between the children and the mother. The area where this raises the greatest concern is in relation to the sharing, by the mother with the children, of information regarding the court proceeding and her issues in dispute with the society, resulting in the destabilization of the younger child's placement.

[45] The affidavit of Helen Pereira includes, as Exhibit "M", a record of a telephone call the foster parent received from the Crisis Centre of Scarborough Grace Hospital, where the younger child had been taken by police after she informed them that she intended to commit suicide. The Crisis Centre was of the view that the talk of suicide was a manipulative move and that there was concern A.M.-2 had been "coached". Hospital personnel noted that A.M.-2 was very aware of the details of the court proceedings and while at the Crisis Centre, she was on the phone to her mother several times, to the point that the Crisis Centre questioned why she had possession of a cell phone. The Crisis Centre recommended a psychological assessment of A.M.-2.

[46] The society's evidence confirms that the foster mother made observations of a regression in the children's behaviour and emotional state following contact with their mother, as reported in the affidavit of Ms. Wint. The foster mother reported that, while in care, the children were in constant contact with their mother via cell phone throughout the day and overnight.

[47] Mother's counsel indicates that the mother is working on the boundaries issue. The child's counsel concedes that there is some evidence that the mother has failed to maintain appropriate boundaries with the children, although Ms. Starr notes that there is no definitive evidence of a clear connection between any "coaching" by the mother and the child running away from her placement.

[48] The court is uneasy about the fact that A.M.-2, age 10 years, was able to procure a GPS and/or a cell phone, as well as money, to facilitate her running away from her placement on two previous occasions. The court is also cognizant of the fact that the child was in constant contact with her mother, both before and at the time of one of her flights from the foster home.

[49] The court recognizes that the mother is often loving and affectionate towards her daughters. The evidence supports that the younger child misses her mother. However, there is work that needs to be done by the mother and both daughters, at this stage, before A.M.-2 can safely be returned to her mother's care under the terms of a supervision order. It is hoped that the mother will cooperate with the society to expedite the steps that need to be taken to ensure a successful return of the younger child to her mother's care at the earliest opportunity, especially given A.M.-2's strong views and wishes to see this occur. In the meantime, there is a need for the mother to support A.M.-2 in her current placement.

Summary

[50] In summary, the court is of the view that the society has met the two-part test set out in s. 51(3) of the Act in relation to the child, A.M.-2. There are reasonable grounds to believe that there is a real possibility that if the child is returned to the mother, she is likely to suffer harm. Further, the society has established that the child cannot be adequately protected, at this stage, by terms or conditions of a temporary supervision order.

Temporary Access

[51] The court is greatly concerned about the possibility that the younger child may be further de-stabilized in the society's care, through contact with her mother or her older sister, A.M.-1. The society indicates that the foster parent had observed that with every telephone contact and access visit with her mother, A.M.-2 tends to get upset and unsettled. The foster mother reports that A.M.-2 has made several comments about needing to present as "mad and sad" while in foster care, so as to appear that she is not doing well in care.

[52] On access visits, both the mother and the older child have shown a lack of restraint and a failure to follow the direction of society workers, however A.M.-1 is more aggressive and less deferential to the direction of the society, in this regard. The court is concerned about the possibility of A.M.-2's placement being undermined, as well as the possibility of A.M.-2 receiving encouragement to leave her placement and put herself in harm's way, due to unmonitored contact with her mother or A.M.-1. The court is also concerned that the child should not hear further details of the court proceeding from anyone other than her own lawyer.

[53] Given these concerns, the court is of the view that the temporary order in this case must also restrict the forms of access that A.M.-2 has with her mother and her sister at this time, and that in order to ensure A.M.-2's safety, the frequency of her contact with her older sister must be limited, until firstly, A.M.-1 has received some counselling or therapy to improve her ability to regulate her own behaviour and emotions and secondly, A.M.-2 stabilizes in her placement.

Temporary Order

[54] The court therefore makes the following temporary order:

1. The younger child, A.M.-2, will continue to be placed in the temporary care and custody of the applicant society. This order is no longer a "without prejudice" order.

2. The respondent mother will have temporary access visits with the child, with such access to be supervised until such time as the society is satisfied that A.M.-2 has stabilized in her placement and the respondent mother is able to support A.M.-2 in her placement by both her statements and actions. The access will continue to be a minimum of two visits per week. No one else may participate in such access visits, without the society's written consent.

3. In addition, the respondent mother may have supervised telephone contact with the child, A.M.-2, a minimum of three times per week, provided that the society is able to ensure supervision of such telephone contact, and provided the respondent mother is prepared to observe and comply with the parameters of such telephone access. The respondent mother is not to have any other form of access to A.M.-2, either by way of telephone, text, email or other electronic means, until such time as the Society is satisfied that A.M.-2 has stabilized in her placement and the mother has demonstrated an ability to support A.M.-2 in her placement. The society may therefore restrict A.M.-2's access to a cell phone to ensure compliance with this term.

4. The older child, A.M.-1, will have supervised access visits with her younger sister, A.M.-2, to occur initially once per week, provided A.M.-1 demonstrates sufficient self-restraint to ensure that she is able to comply with any parameters for access that may be established by the Society. In the Society's option, A.M.-1's supervised access visit may be coupled with one of the respondent mother's supervised access visits with A.M.-2. Otherwise, A.M.-1 is not to have any other form of access to A.M.-2, either by way of telephone, text, email or other electronic means, until such time as the Society is satisfied that A.M.-2 has stabilized in her placement and A.M.-1 has demonstrated an acceptable level of self-restraint in her statements and her behaviours, such that the additional contact would not pose an ongoing risk to A.M.-2.

5. Future expansions of the access of the mother and A.M.-2 to the younger child, A.M.-1, including the removal of supervision, are in the society's discretion.

Released: October 24, 2012

Signed: "Justice C.J Jones"