Court File and Parties
Court File No.: St. Thomas 94/10 Date: 2012-02-27 Ontario Court of Justice
Applicant: Children's Aid Society of the City of St. Thomas and the County of Elgin
Respondents: E.D. and J.D.
Dates of Hearing: 19-21 October 2011; 2 & 8 December 2011; 4-5 January 2012; and 15 February 2012
Decision Released: 27 February 2012
Counsel
M. Elizabeth Wilson — counsel for the applicant society
David Winninger — counsel for the respondent mother E.D.
Keli D. Mersereau — counsel for the respondent father, J.D.
Endorsement
Introduction and Findings
[1] JUSTICE M.P. O'DEA (endorsement):— This is the trial of a protection application following the apprehension of two children from the care of their parents. The mother is Ms. E.D. The father is Mr. J.D. The children are J.D.D (who was born […], 2007) and S.D. (who was born […], 2008). The family does not adhere to any particular faith and neither child has native status. The children were apprehended on April 9, 2010 in Elgin County. On these facts, the subsection 47(2) findings are confirmed.
[2] The parties have agreed that findings should be made pursuant to subclauses 37(2)(b)(i) & (ii) and clause 37(2)(g) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended. The findings pursuant to clause 37(2)(b) are based on the substandard condition of the family home that remained unchanged in the year prior to apprehension. The home was consistently filthy, strewn with garbage and dropped food and smelling of urine and feces. The children's beds seldom had bedding and they and the home reeked strongly of stale smoke since both parents smoked in the home. The children were observed as dirty, under-dressed or not dressed at all. How or whether they dressed was apparently left to them. They would pee on the floor and also eat food that had been dropped on the same floors. Both parents were more interested in other activities rather than monitoring their children. The findings pursuant to clause 37(2)(g) are based on consistent fighting, swearing or arguing between the parents that was seen frequently by the children and it is agreed they would be adversely affected emotionally by what they witnessed.
[3] The parties agree that a placement of the children with either parent would be subject to supervision. The dispositional issue is with which parent the children should be placed and the terms that would apply to the supervision.
[4] Interim placement was argued on November 4, 2010 and the girls were placed in the interim care and control of Mr. J.D. subject to supervision. The interim terms were mainly focused on both of their deficits that identified the risks but one term was added by the court to address Mr. J.D.'s obsession with his personal computer and on-line gaming. This habit appeared to feed many of his deficiencies so it was ordered that he not have a personal computer in his home or possession.
Analysis of Parental Deficits
[5] Historically, from the perspective of the interests of the children, it is sad to note that neither parent required much (if any) formal instruction on how to clean and maintain a safe home following their separation. This indicates that the deplorable conditions in the home during cohabitation were intentional. Both parents chose that the family would live in such conditions so each could pursue their individual focuses. Mr. J.D.'s was on-line gaming. In this focus, he was absolutely self-centered and selfish. He adamantly refused to lift a finger to help around the house and with the children if that required him to be away from his computer. Ms. E.D.'s focus of choice is less clear. There is some evidence she spent a lot of time on a computer but, on the whole, it appears to boil down to the fact that she just could not or would not consistently do what was needed to keep the home and the children clean and safe.
[6] It is further historically clear that neither had the interest or energy or ability to effectively manage and monitor the children. Everything suggests that as it related to child management or structure both parents chose the path of least resistance and primarily allowed the children to fend for themselves. Neither was interested in structure or routine since that would take the time and effort that neither was prepared to invest. In their failure to invest the time and effort, the children were exposed to daily risk of physical harm. All of the evidence supports that child management was not, as with house cleaning, an intentional deficit. Both required education to remedy this deficit.
Credibility and Incidents
[7] Since the risks were defined by agreement, the focus in this trial ought to have been whether a parent had remediated the deficits leading to the risks. A majority of trial time, however, was spent exploring "incidents" that — it would be argued — might have a bearing on the parent's "credibility".
[8] In any proceeding involving custody of children, credibility almost always takes a back seat to the image that a parent wants to portray to the court. Problems and shortcomings are discounted, minimized or denied altogether. Where the problems or shortcomings are peripheral to the core issue of best interests, the minimization, discounting or denials are seldom determinative. Where the problems or shortcomings are connected to a specific best interest criterion, the minimization, discounting or denials may become directly or indirectly determinative.
[9] Credibility will always be a determining factor in assessing finding in need of protection. The reasons are obvious. Causation determines the State's right to intervene in the affairs of a family and a finding brands parent(s) for a potentially very long time. The State's obligation to prove that a parent caused the risk(s) almost always will boil down to a broad credibility assessment. The same will apply to a dispute between parents as to who caused the risk(s).
[10] Where only disposition is at issue, however, credibility (as between parents) does not play as major a role. Considering the potential depth of the historic deficiencies faced by both parents, the court expects relapses to historic conduct as each parent strives to change. The court recognizes that, during the learning process, mistakes will be made that are harmful or potentially harmful to the children. The court will attribute little weight to the individual incidents. They will only merit weight in the face of repetition and refusal to learn from the mistake(s).
[11] In this case, the focus was mainly on "incidents" and it appeared that the purpose of raising an incident was not to focus failure to change but to embarrass or suggest that both parents are equally negligent.
[12] Nevertheless, in deference to the positions taken, I will briefly outline my assessment of credibility in context of the incidents and the weight to be given to each incident. The connection to a specific best interest criterion will be addressed later.
[13] The time spent regarding Mr. J.D.'s circumstances at work in 2008 was a waste of the court's time. That evidence had no bearing on disposition, risk or best interests.
[14] The time spent exploring who was at fault for the parents' debt load at or following separation was not helpful in context of disposition. In context of credibility, it was clear that Mr. J.D. unfairly projected much of the blame on Ms. E.D. His credibility was weak in this area since it was historically clear that neither parent was interested in budgeting. They lived on a fixed or limited income. The evidence is clear, especially as it relates to the cost of their electronic gadgets and utilities, that they historically overspent and often found themselves in debt with service providers. At a point, they both elected to or acquiesced in putting certain accounts into the names of their children to avoid losing the service.
[15] Little weight will be given to Mr. J.D.'s effort to project blame. The evidence conclusively shows that he has not repeated whatever caused his historic deficit in budgeting. I will address Ms. E.D.'s budgeting circumstances below.
[16] Considerable time was spent describing ongoing conflict between the parents. The ongoing conflict has the potential to extend the risk found under clause 37(2)(g). I give this evidence no weight in regard to credibility. But I will give the fact of ongoing conflict considerable weight in regard to terms. When all of this evidence is added up — on its own and in context with other "incidents" — my sense is that both parents continue to have some level of attachment to the other, which at times might be healthy but on the whole appears very unhealthy. In so far as eventually ruling out the clause 37(2)(g) risk, the ongoing attachment between the parents needs to be addressed.
[17] I give no weight to the condition of the children or their clothing on exchanges. This evidence has nothing to do with risk and everything to do with each parent's wish to continue doing battle with the other. Delayed exchanges are other "incidents" that are connected to the relationship issue. The same can be said about the alleged 2010 Valentines gifts.
[18] I attribute no weight to the fact that either parent sought out new relationships or how they went about doing so. I attribute no weight to the fact that a person helped out in their homes or undertook some housekeeping tasks. If this were a problem, almost every parent we deal with in the child welfare context would be subject to censure. The relevancy arises in the choices made when a new relationship reaches the point where a child is exposed to a new potential partner. That will be discussed below.
[19] A considerable amount of time was spent on the May 12, 2011 incident where Mr. J.D. fell asleep and the girls had the run of the house and yard but the only real area of disagreement was whether the girls had sleeping pills or not. Ms. Webber, who called 911, testified that they did and Mr. J.D. testified that he never had sleeping pills in the home. To the extent that this was her issue, the mother's evidence falls well short on the point of disagreement. Ms. Webber's evidence was inconsistent in a number of critical areas as to the unfolding of the incident and was vastly inconsistent with the evidence of the officer who responded to her call. The major inconsistency is that Ms. Webber claimed the sleeve of pills was marked "Sleep Aid 50 mg" but the officer testified there was no writing on the sleeve. I also doubt that Ms. Webber was ever concerned that the girls had consumed sleeping pills. If she was as concerned as she presented, she would not have left them alone while she spoke with neighbours and waited for police to arrive.
[20] There are no credibility issues flowing from this incident. Any positive weight extends to Mr. J.D. who immediately acknowledged what had occurred and that it was his fault. He offered no excuses. He immediately implemented the safety plan demanded of him and there is no evidence of repetition or circumstances that might lead to repetition.
[21] Considerable time was spent discussing a sunburn and infections. No weight is given to these incidents in context of their occurrence or credibility. Both parents addressed the situations appropriately. My sense from the evidence is neither parent was outraged when the incidents occurred. Their outrage was reserved for trial.
[22] As indicated above, a term of the November 4, 2010 interim order was that Mr. J.D. was not to have a computer in his home. In the interim decision, the court focused Mr. J.D.'s use of his computer in context of gaming and Mr. J.D. focused this finding on how he would implement the ban. The evidence is clear that he had computers in the home throughout the course of the interim order. He disengaged his laptop and put it in a closet but admitted that he only needed to plug it in to use it. His father bought him a "Net Top" pad that had limited computer capabilities that he used in the home over the course of the order. He bought a cell phone in June of 2011 that had limited computer capabilities that he used in the home over the course of the order. In context of this evidence, I find that he breached the November 4, 2010 order.
[23] From the perspective of credibility, not much attaches to this evidence. Mr. J.D. did not deny what he had. His evidence was "guilty with an explanation". The weight of his admissions will attach to the clarity of any term that is deemed appropriate in regard to ongoing computer use. Ms. Webber's evidence is of little help on this issue. She had known and visited both parents before they separated. She visited Mr. J.D. after the separation. She acknowledged her observations of the desktop were from the summer of 2010 and the "laptop" she spoke of was in fact the "Net Top". Her evidence does not contradict Mr. J.D.'s to any significant degree.
[24] I intend to address the sex videos at this point only in context of credibility. Irrespective of whose explanation is accepted, the evidence is clear that the three 60 to 90-second videos were made in the fall of 2010. Mr. J.D. clearly stated he got the computer he allegedly discovered the videos on in December of 2010 and this evidence belies suggestions by his lawyer that the videos were made at some point in early 2011. There is no issue when the other video was made.
[25] It is impossible to articulate, in context of the evidence related solely to the making of the videos, whether Ms. E.D. was invited to make them for financial gain or she made them without any proposal from Mr. J.D. However, on the evidence as a whole, I intend to significantly discount the evidence of both parents on this point.
[26] I firmly believe the making of those videos had everything to do with relationship issues. The timing of their making together with the ongoing waxing and waning of reconciliation discussions and Ms. E.D.'s evidence — which I accept — that they historically had exchanged videos with sexual content, suggests the likelihood of some level of mutuality. I will discuss later the weight to be attributed to the fact they were made independent of the reason or timing.
[27] The last "incidents" relate to the evidence of the applicant's worker and it goes strictly to the issue of credibility. Ms. E.D. submits that I should discount or reject her evidence because she so obviously favoured Mr. J.D. Two reasons are advanced: that she did not meet with Ms. E.D. as frequently as Mr. J.D. and she made a call to Ms. Webber's employer in retaliation for the fact that Ms. Webber complained to the police about Mr. J.D. on May 12, 2011.
[28] The issue of frequency of meetings was explored. There were a lot of meetings before Ms. E.D. moved to London and almost none after. I note that the applicant passed Ms. E.D. off to the London children's aid society and a worker was immediately appointed for her. I give no weight to the paucity of meetings after the move since it was obvious that Ms. E.D. had assistance from London and from her parents with whom she was living. The sub-issue of the Ontario Works start-up funds is a red herring and nothing turns on it.
[29] The call to Ms. Webber's employer is a bit more troubling; notwithstanding, it merits little weight. The call was made in September of 2011. If it was in retaliation for the May 12, 2011 incident, that connection has not been made. The worker testified she did not know that Ms. Webber had called police before her call was made and this evidence was not shaken. However, the worker stated the purpose of the call was entirely unrelated to this file but there was a note in the file about the call and the worker could not satisfactorily explain why it was noted if it was unrelated. A significant amount of factual detail was suggested to the worker in the course of cross-examination on this issue. Unfortunately, the person who could confirm the suggestions was not called.
[30] I was troubled by the fact that the supposedly unrelated call was noted given the suggestions of its purpose. However, by the end of evidence, there is nothing more than suggestions about the call to rely on and the suggestions are not evidence. I do not intend to discount credibility due to the two incidents complained of.
Core Issues for Assessment
[31] The truly relevant evidence in this trial flows from the broader issues raised by the applicant rather than the individual incidents focused by the parents. The critical focus will be retention and implementation of what is learned in regard to strategies to consistently:
maintain a clean and safe home;
budget and spend within their means;
follow consistent routines in the management of the children in their home including feeding, grooming and bedtime patterns;
effectively monitor the children having regard to their ages and behaviour;
willingness to coexist with each other peacefully and to adopt an attitude evidencing a willingness to consistently place their children's needs ahead of their own; and
show an ability to make appropriate relationship choices in the interests of the children rather that out of self-interest.
Clean and Safe Home
[32] As indicated above, neither parent needed much teaching in regard to how to maintain a clean home or the importance of doing so. They have both consistently followed through. On its own, the evidence supports that the cleanliness of the home has been resolved and should no longer be considered a risk issue from either parent's perspective. In the result, it has no real bearing on disposition at this point.
Budgeting and Spending
[33] Mr. J.D. and the girls live on a fixed income consisting of Ontario Works, child tax credits and G.S.T. credits. The only evidence before me is that he has learned to co-ordinate his spending within the limits fixed by his income. I do not doubt that he has likely made some poor spending choices about which we have not heard but the poor spending choices do not create the risk. The risk comes with the stress arising from constantly being overextended, the need to cut corners on the children's needs to meet creditor's demands and the lack of focus and conflict that the stress creates.
[34] To the extent that debt defines risk, the evidence does not support a connection in Mr. J.D.'s case. How he has done financially on an ongoing basis was not attacked. All that was attacked was the issue of historic debt. In the result, budgeting and spending has no real bearing on disposition at this point in context of Mr. J.D.
[35] Ms. E.D. has not fared as well. She exists on the same fixed income sources as Mr. J.D. but has made some truly poor decisions in her purchase of what are generally defined as "extras". I give no weight to the debt that she had to repay to her mother for a cell phone plan. This debt arose mainly as a result of the poor decisions that both parents made regarding cell phones during cohabitation and Ms. E.D. had the bad luck of having to repay an historic debt before she could get any form of telephone connection.
[36] However, I attribute considerable weight to the ongoing situation (August of 2010 to December of 2011) related to the minutes she used but could not afford. A phone for someone in Ms. E.D.'s position is a necessity but extensive minutes are not. Her monthly minute limit was $75.00 but, on average, she used $130.00 a month over this period. One month, she overused to $200.00 and once to $500.00. Her mother eventually had to bail her out again and last December (2011), her mother — not Ms. E.D. — suggested a plan that would limit her exposure to $35.00 monthly. Ms. E.D. apparently got angry about her mother's interference but the evidence regarding her absolute inability to recognize — over a period of 16 months — that her debt load was increasing and the need to or how to address it is striking. One of Ms. E.D.'s core weaknesses is her decision-making and the cell phone evidence clearly defines it.
[37] Ms. E.D.'s decisions to purchase pets were poorly thought through but on their own do not give rise to risks. However, in context of the mounting phone debt, the other spending decisions risk contributing to financial stress and her ability to focus her attention on the children.
[38] In the child welfare context, courts rarely use finances as a factor regarding placement. The reasons are apparent and do not need to be discussed. In Ms. E.D.'s case, however, finances have to be weighed in context of decision-making, impact of stress and ability to focus. When all the evidence about Ms. E.D.'s personal deficits are considered, there can be no doubt that financial stress will lead to parenting stress and the real risk of an inability to focus on the needs of the children in her care.
Management Routines
[39] This topic garnered the most evidence from the applicant. It will take some time and space to outline.
[40] In fairness to Ms. E.D., the court recognizes that, from the date of apprehension until early August of 2010, both she and Mr. J.D. were "joined at the hip" in their dislike for and lack of trust in the applicant and its worker. Both absolutely refused to make any changes to the condition of their home. Both refused — Mr. J.D. in particular — to co-operate with the plan that might see the children returned. In Ms. E.D.'s defence, she enrolled in the applicant's parenting program during this period while Mr. J.D. sat at home on his computer. Having regard to the inflexible positions taken by both parents at the time, it is not surprising that many of the comments in the St. Thomas program report about Ms. E.D. are negative.
[41] It was not until they separated and it became apparent that each could apply for placement of the children that their attitudes changed. Ms. E.D. left the relationship and moved into her parent's home because she believed this would be her best opportunity to retain care of Daniel. This decision irked and hurt Mr. J.D. and was the factor that drove his decision to change. He was focused on besting Ms. E.D. in the placement dispute over the girls that followed. Considering everything, both parents should be thankful the separation occurred. Had they remained together, we would likely be facing an application for Crown wardship rather than supervision.
[42] Nevertheless, the parents' reasons for change are irrelevant. The issue is whether change has occurred, whether it has legs and will survive and whether it is enough to erase the risks that allowed the applicant to intervene.
[43] Mr. J.D. attended a number of programs. He completed the "Dad's and Tots" parenting program and the "Caring Dads" program. Reports from these programs are positive. He repaired relationships with his family who have to date been a consistent source of support. The applicant has been in his home often since the interim order was made and its worker testified, and was not truly challenged, that he has consistently and appropriately implemented what he learned in the programs. In regard to the various incidents that were investigated, Mr. J.D. was proactive in regard to accepting his mistakes and implementing plans to assure none recurred and there is no evidence any did recur.
[44] There remain issues respecting Mr. J.D. that can be addressed in terms and these will be discussed later. But there is no evidence he is not entitled to placement of his daughters in context of his daily management of them.
[45] As to Ms. E.D., her initial program was the "Mom's and Tot's" parenting program offered through the applicant. The negative report was discussed above. I place minimal weight on her attitude in the sessions. However, considering the evidence as a whole, I reject Ms. E.D.'s claim that she learned everything the program had to offer. She might have retained bits and pieces but even she cannot be clear what they were. Considering issues respecting the impact of stress and anxiety on her ability to focus, fed by her disputes at the time with the applicant and her deteriorating relationship with Mr. J.D. and her limitations at multi-tasking, I accept that she did not learn or retain the core teachings in the program.
[46] Upon Ms. E.D.'s arrival in London, the London children's aid society made it clear that it would support Daniel's placement in her care subject to supervision. This position enabled Ms. E.D. to both respect and co-operate with the London worker — entirely unlike her position in St. Thomas which did not support her ongoing parenting.
[47] Between August and November of 2010, a parent support worker was appointed to assist Ms. E.D. in her home. The worker had a number of fixed goals, one of which was improved parenting skills. At the end of this session, the worker identified that Ms. E.D. required more assistance in a broad range of parenting tasks, including meeting emotional needs and attachments, daily routine and structure. The worker also recommended more help in personal areas such as self-esteem, relationship with Mr. J.D. and focus.
[48] As a result of these recommendations and her worker's observations, Ms. E.D. was enrolled in a family support group. The first six weeks involved teaching basic infant care. The second eight weeks involved parenting toddlers. The group sessions for both programs ran from September of 2010 until March of 2011. The reports were positive in regard to Ms. E.D.'s ability to meet Daniel's basic needs. When J.D.D. and S.D. attended and she had no help, Ms. E.D. struggled to meet all three children's basic needs. Most critically, the second group report contained many instances where Ms. E.D. could not implement what she had previously learned. The report identified also that her attention span was quite short and she needed frequent breaks in the 90-minute sessions.
[49] Ms. E.D. has had the assistance of a public health nurse since July of 2010 addressing healthy babies. In August of 2010, the Health Unit identified Ms. E.D. as within its high-risk stream with the result that the nurse's attendance is unlimited as to duration. No one asked what factors led to this designation. The nurse advised the court that Ms. E.D. has progressed well in meeting Daniel's basic needs and that Daniel is progressing and developing normally. She also noted that Ms. E.D.'s short attention span and gave a few examples where Ms. E.D. misunderstood or forgot what she had learned. Most importantly, the nurse observed that, as long as Ms. E.D. is not distracted by what is occurring around her or she is not stressed or anxious and her life's circumstances are unfolding rationally, she can cope with basic parenting and meet basic tasks.
[50] Ms. E.D. completed a life skills program in St. Thomas in June of 2010. This was, considering her weaknesses, a critical program since it involved, among other things, budgeting, communication, boundaries and relationships. For the reasons outlined above, Ms. E.D. retained little from this program. In 2011, she asked London to enrol her in the same group but it is unclear whether that occurred. However, some of the life skill topics were to be covered with her second parent support worker.
[51] Beginning in May of 2011, a second parent support worker was assigned to assist Ms. E.D. in her home. This worker testified and reports were filed. Before addressing her evidence, some comment is needed regarding the delivery process.
[52] The worker's role was not just teaching. She was also mandated to provide transportation where needed in regard to securing necessaries for Daniel. Her teaching role was undefined. Ms. E.D.'s learning obligation was equally undefined. The reports listed behaviour management strategies but her evidence indicated she also intended to address budgeting. This worker's reports offered nothing in context of information that might assist Ms. E.D.'s protection worker to identify targets met or areas for improvement.
[53] This worker's evidence clearly showed that what she was to deliver had no structure. There were no targets or deadlines. Ms. E.D. dictated what would be accomplished in each session and, for her eight months of involvement to date, the worker allowed Ms. E.D. to defer critical areas of teaching or learning. The worker referred several times to her heavy case load and the cost of delivering this service yet the absolute lack of structure assures that the program will forever be cost-and-results inefficient.
[54] On the whole, this worker's evidence was of no help in determining whether Ms. E.D. had made any progress since finishing the last group program in March of 2011, which effectively stated that Ms. E.D. needed to retake the group program at home where a parent support worker could teach in a "hands-on" format.
[55] Considering the evidence as a whole, Ms. E.D. has learned how to properly meet Daniel's basic needs. Her housekeeping is consistent. Food management is consistent. The child's clothing and hygienic needs are consistently met. Ms. E.D.'s mood appears stable in context of her communication with Daniel. And so far as Daniel is concerned, it appears Ms. E.D. has a structured routine in place during the day and for bedtime. The London agency notes, and I concur, that her basic parenting of Daniel has markedly improved compared to her pre-apprehension circumstances.
[56] The same cannot be said when she has all three children in her care. Every report and all the evidence supports that, when she is responsible for all of her children, she needs consistent help to accomplish basic tasks. Her stress level markedly worsens and she is not able to multi-task which is demanded since the girls have differing needs and demands than Daniel. As a result of stress, structure and routine with all the children falls well below an acceptable minimum standard. The evidence is also clear that, on many weekends when she has all of the children, she spends most of the time with friends or relatives who appear to assume a number of parenting tasks for her.
[57] In my mind, the evidence is crystal clear that, if I were to place the girls with Ms. E.D., it is probable that many of the pre-apprehension management and structure deficits would re-appear. That would not be in the interests of the children.
Effective Monitoring
[58] J.D.D. and S.D. are both described as "high-energy and active" young girls and my sense is that both parents do not yet accept the demands of effective monitoring of children such as these two. My sense as well is that both parents continue to find that the applicant's demands for effective monitoring to be tiring and a bit overstated. My sense derives from the laisser-faire attitude toward monitoring that both evidenced historically and in my mind, both parents are presently equally weak in this area.
[59] Both parents still smoke. Both are striving not to do so in the presence of the children but, when they need a smoke, they have to physically separate themselves from their charges. Mr. J.D. goes up to his room and leaves the girls downstairs. Ms. E.D. goes to her balcony and leaves Daniel in the apartment. My sense is that both smoke a lot with the result that the children are left with the run of their homes often.
[60] Mr. J.D. lives in a townhouse complex. There are some outdoor green common areas but most of it is paved and travelled. He believes that the girls can play outside and will be watched by other parents but there is no set plan among the parents identifying who is responsible for monitoring at any given time.
[61] Historically, Mr. J.D. exhibited extremely poor monitoring skills. On one hand, it was by choice and he deferred the responsibility to Ms. E.D. and then ignored the deplorable condition in which the children were often observed. His assumption at the time was that, as long as they were in the house, they could look after themselves. On all the evidence, my sense is that he still believes the girls are mature enough to be given considerable freedom of movement in and around his home. On the other hand, he was utterly selfish in regard to his monitoring when that obligation conflicted with his computer use and I am not yet satisfied that, if he were given unlimited computer access, he would not revert to old habits.
[62] I am of the view Mr. J.D. has more to learn about age-appropriate expectations in context of his obligation to keep his young children safe.
[63] In regard to Ms. E.D., I am of the view that her limitation respecting monitoring is directly connected to her attention deficits and anxiety/stress. I would have expected the applicant to bring better evidence identifying the specifics of her attention limitations since so many of its or London's employees commented about it. She has been depressed since childhood and is presently medicated for this deficit. Several of the program reporters mentioned that she was recently medicated for A.D.H.D. Then there is the very general self-report that since August of 2010, Ms. E.D. has been taking Concerta to combat the effects of an impulse disorder. According to Ms. E.D., the Concerta helps her think more clearly and she hints that it also helps to combat anxiety and stress.
[64] The observations are that she cannot think clearly when under stress or if too much is going on around her or if her daily circumstances are not unfolding rationally. She loses focus and needs time alone (breaks) to regain it. When she loses focus, she cannot respond to demands of her — whether from workers or children. When all of this evidence is considered, it is not at all surprising that she so frequently found herself helpless and simply ignored the children when she and Mr. J.D. were together.
[65] All of the observed circumstances regarding attention deficits impact both her parenting and learning. They all have a role in regard to what teachings were not retained or implemented in the home. They impact how she should be taught and that hands-on training and observation and feedback are critical. The observations explain why the present parent support worker is achieving so little.
[66] Ms. E.D. has retained enough to muddy through with parenting Daniel but, if her attention deficits do not improve or she is not taught how to cope in spite of them, parenting Daniel will likely become more difficult and stressful as he ages and becomes more active. Unfortunately, Ms. E.D. has not retained nearly enough to cope with monitoring three children. Ms. E.D.'s attention/stress/anxiety/impulse deficits impact every issue raised by the applicant to some extent.
Family Relationships
[67] I have already discussed my sense that neither parent has adequately addressed their separation and there is still some connection between them. Until both come to terms with their separation, conflict will likely continue. Further, it is not my sense that the sole rationale for their ongoing conflict is this litigation. In my mind, this decision will not reduce the incidents of conflict.
[68] Mr. J.D. gets considerable support from his family and his relationship with them is normal in all respects. On the evidence, it is easy to infer that they will continue to assist where necessary and it is clear he needs their support at times.
[69] In her circumstances, Ms. E.D. needs a strong support network. She has none at present with the result that she looks more to the London society's workers for assistance rather than teaching. Ms. E.D. claims her family will be her network but the evidence strongly discounts her family's participation. Ms. E.D. has a conflicted relationship with her mother. This is not a new phenomenon: it has existed since her teens. They frequently argue and, when they do, Ms. E.D. finds it necessary to separate herself from her mother so that Daniel will not witness the disputes. The evidence supports that they fight frequently. Her relationship with her sisters is improving but still distant. Notwithstanding, neither sister has the time to assist Ms. E.D. at the level she requires.
[70] I attribute considerable weight to the fact that Ms. E.D.'s mother did not testify. The fact that their conflict would be focused by the applicant and father was apparent from the notes and reports. If I am to give any weight to Ms. E.D.'s mother's willingness to assist, the notes and records demanded that I hear from her. What I have from the evidence I heard is the sense that Ms. E.D.'s mother still treats her as a child and is not herself confident that her daughter will make sound and rational decisions in regard to daily circumstances that will affect her parenting. My sense from Ms. E.D. is that they fight when her mother interferes in her personal decisions. Considering all the evidence, it appears they will fight often.
[71] The evidence does not support Ms. E.D.'s claim that her family will support her to the extent necessary given her needs and weaknesses.
New Relationships
[72] This factor also affects both parents but Ms. E.D. more so than Mr. J.D.
[73] Some time was spent questioning about the use of a dating website. Considering what is acceptable in society today, I doubt that using such a site falls below community standards. In any event, it is the decisions that follow choosing a potential partner that matter.
[74] Mr. J.D. has been just as anxious as Ms. E.D. in finding a new partner. The difficulty with his choices is that most have had some connection with a child welfare service and most have ongoing restrictions respecting caring for children. Mr. J.D.'s pool of choices has come out of his housing complex and all present the risk of conflict between him and the applicant which must enforce the restrictions. His decisions are a bit different in kind from those made by Ms. E.D. but merit monitoring in any event.
[75] Ms. E.D. has made some questionable decisions in regard to the speed with which she will expose Daniel to someone about whom she knows little. She reconnected with friends from the past who were immediately granted access to Daniel. One was her old friend Joe with whom she had had minimal contact since she was a teen in Barrie. She let him move in notwithstanding that she knew little of his present day character. She wanted to take Daniel to Montreal for a week to connect with a person she had not seen for 14 years and had no sense of his present character. She met a few others on the website who, but for the insistence by her worker to do background checks, would likely have been granted access to Daniel.
[76] The real issue with Ms. E.D. and relationships is her deficient decision-making capacity and low self-esteem. Although perhaps not intentional, I do not believe that she is capable of prioritizing Daniel's needs over hers. Decision-making and self-esteem were significant factors in the making of the two sex videos and this finding applies notwithstanding which explanation for their making I might accept. Whether they were made for money that she believed was owed to her or to enhance her relationship with Mr. J.D. is secondary to the depth with which she knew she would debase herself if they were made and published and she chose to make and publish them nevertheless. I am firmly of the view that Ms. E.D. stands the risk of debasing herself again in the interests of maintaining a relationship.
[77] In my mind Ms. E.D. will go to any length to please a potential partner and, on the evidence, most partners whom she might choose will treat her poorly. Unfortunately, it will take far more than 6 to 12 months of teaching to rectify this deficiency and, as long as it remains unrectified, the girls will be as at risk emotionally as they were when Mr. J.D. and Ms. E.D. were together. I would expect Ms. E.D.'s programs with the London Abused Women's Centre would address some of these issues but, on a reading of the two reports, it is entirely unclear what concrete teachings this organization offered Ms. E.D. The two reports cannot be given any weight.
Best Interests
[78] In my assessment of best interests and a balancing of the plans proposed, I am of the view that the best interest considerations in subsection 37(3) are either equal or unrelated save and except the importance of the children's development of a positive relationship with a parent and a secure place as a member of a family (paragraph 37(3)¶5) and continuity of care (paragraph 37(3)¶7). On the evidence that I heard and accept, I am of the view these two considerations favour the plan advanced by the applicant and father.
Positive Relationship with a Parent
[79] In context of this criterion, the applicant argues that the court should give considerable weight to Mr. J.D.'s status quo that has existed since November of 2010. To the extent that this submission seeks a general finding that all things being equal, the court should not risk a change of custody, I respectfully disagree.
[80] The status quo principle is mainly applied in the domestic setting which generally involves just two parties — parents. In the child welfare setting, the State is also a party exercising statutory duties to protect children from identified risks and meeting statutory obligations to the parents to remedy the identified risks. Until those duties and obligations are fully delivered, nothing is equal. In any event, the court should not look to domestic custody principles respecting placement when it is provided statutory considerations to apply in child welfare cases that focus both risk and change.
[81] To apply the so-called status quo principle at this stage would cede far greater importance to an interim decision than it merits since it is often made long before a parent begins the process of change. It would ignore the potential of one to change and remedy risk in favour of the other who just happened to be in a slightly better position at the time of the interim hearing. In situations where a child is removed from the care of one parent and delivered over to another family member, application of the principle would render all the presumptions favouring the parent having prior care and control meaningless.
[82] I am confident in this finding when section 57.1 is considered. A deemed domestic custody order made under child welfare legislation should not be endorsed until the applicant has, among other things, satisfied the court it has met all its statutory obligations to the parent who had prior care and control. In my mind, if an applicant meets this onus, the so-called status quo principle will be applied since the purpose of an section 57.1 custody order is to recognize the interests of a child in confirming an existing placement in the face of a parent's failure to change.
[83] Considering paragraph 37(3)¶5, I am satisfied that the children have developed a positive relationship with their father and can feel secure in his care. This finding is not without caveats respecting risk but all the evidence supports that the relationship can be maintained with terms. The availability of this finding was not shaken in the evidence.
[84] The girls have a positive relationship with their mother on a very basic level but the positive aspects are tenuous on most practicable levels. Whether the relationship remains positive depends on Ms. E.D.'s ability to manage her attention/stress/anxiety/impulse deficits and, at this point, the court is of the view her ability to do so is deficient and cannot be managed with terms. In this regard, the security of her relationship with the children is equally tenuous.
Continuity of Care
[85] When one considers the depth of the parents historic deficits, some of which were intentional, the court must give considerable weight to the fact that the father has managed to parent the children since November of 2010 without an incident that might support their removal. He is not the parent many would choose to watch their children but, for 15 months, he has managed to meet the standards demanded of him in the community and he has learned and implemented enough skills to keep the wolf from the door.
[86] If the girls were placed with their mother, the evidence firmly supports the likelihood of a breakdown and an apprehension in the future. Considering her history, we have not seen the last of her poor financial decisions which will result in stress and loss of focus in regard to her parenting obligations. Her management of the three children is as yet untested since, each time the girls visit, Ms. E.D. abdicates many of her duties and chores to others. To this point, there is no real evidence supporting her ability to manage all three and evidence supports that the stress and pressure of doing so will negatively affect her ability to apply the bits and pieces of information she has learned to date. In regard to learning, she has completed programs but, at the end of each, recommendations are made for her to repeat them and, in regard to everything I heard, it would not be long before her management of her children deteriorated to pre-2010 levels. Issues respecting monitoring, conflict in her life and relationships will simply add to the stresses that she will so clearly experience in parenting. These issues might be manageable by terms on their own but, in context of the spending and management issues, they will accentuate her core weaknesses.
[87] J.D.D. and S.D. are meeting all their medical and developmental milestones. They are considered well-behaved in their father's home. Nothing suggests anything personal to the girls that might hinder their appropriate development in his care. Notwithstanding ongoing fighting between their parents, they appear to transition easily between homes for access. In this context, it is not clear that the girls would not manage a move from their father's to their mother's. Notwithstanding that they might manage the first move, I am not prepared to find they would manage well the re-apprehension that will likely occur. They are older and more attuned to what is occurring around them and about them. Given her makeup, Ms. E.D. would not manage another apprehension well and her children should not have to face that reality.
[88] For the reasons above, on a balancing of plans, it is in the best interests of the children to remain in the care and control of their father subject to the supervision of the applicant.
Supervisory Terms
[89] None of the parties made submissions respecting the appropriateness of any of the terms in the application. In the result, I will assume each accepts what is printed and I will either vary or add terms if necessary from the evidence accepted in this hearing.
[90] Terms 1 to 4 will be incorporated as printed in the amended application.
[91] Term number 5 is no longer appropriate as written since there is no evidence of a present effort to reconcile. However, both seriously need assistance dealing with their separation and unresolved feelings about the other. As indicated above, it appears that, if their feelings are left as they presently stand, ongoing conflict between them will be a certainty.
[92] As to term number 6, it is outdated as printed. I am of the view this term should encompass all in-home services deemed appropriate by either parent's worker having regard to recommendations in programs already completed or recommended herein.
[93] Term numbers 7 to 9 will be incorporated as printed in the amended application.
[94] As to number 10, I am not certain that the counselling identified therein will be effectively delivered by Violence against Women's centers. Much of Ms. E.D.'s needs in this area evolve from her low self-esteem, her deficient decision-making skills and her ability to place her children's need for safety ahead of her need for a personal relationship. In my mind, something more focused is needed in a one-to-one basis. I have yet to encounter an organization run by volunteers that can effectively address these issues — yet it appears many children's aid societies default to them. Ms. E.D.'s issues in this area are difficult and ingrained: they require professional attention.
[95] Number 11 should relate to both parents. It is not clear on the evidence why it would only relate to Ms. E.D.
[96] As to numbers 12 and 13, evidence does not support that either of these services is presently relevant. These terms will be deleted but the ability to provide for ongoing services will be addressed in number 6 above.
[97] Two additional terms will be added by the court: the first will address each parent's obligation to disclose any relationship in which a child might be exposed to a potential partner; the second will address computers in Mr. J.D.'s home.
[98] As to relationships, both parents are choosing potential partners with child protection histories and issues or with unknown backgrounds. Neither has as yet shown the ability to pick and choose partners who do not pose an immediate risk to the children. In this regard, both must notify the children's aid society with enough particulars about the person to allow a child welfare background check and both will be bound to follow the advice of their worker whether the relationship can progress. This provision is in addition to the child-care provision in number 8.
[99] As to computers, I am of the view that effective monitoring is Mr. J.D.'s major weakness. Reasons were discussed above. Until he clearly accepts and understands his obligation to keep his children safe in and about their home and that it is not up to the children to meet this need, a computer will be a significant distraction. However, I do not intend that the prohibition be as sweeping as it was in the November, 2010 order. Considering that distraction is the deficiency I want to avoid, I intend to order that he cannot have a computer in the home that is capable of supporting gaming or Facebook applications and I intend to order that he will not access either application on any computer that is in his home or that of a neighbour in his townhouse complex. This may appear harsh in this age of instant connectivity but, in context of his history, some harshness is called for.
Access
[100] Ms. E.D.'s suggested access regime mirrors one that would generally be made in a domestic proceeding. On the evidence, it is not yet time to allow access to look like it was made in a domestic order since there remain issues in the child welfare context that must be addressed.
[101] Ms. E.D. has had access to the girls every weekend during the period covered by the interim order. She asks that this weekly regime be maintained. The applicant and Mr. J.D. suggest that her weekend access should be cut back since Ms. E.D. has complained that having the girls every weekend does not allow her to socialize with her friends, since she has such difficulty parenting all three children and since the regime does not allow Mr. J.D. the time with the girls other than on school days.
[102] In my mind, there is insufficient evidence to terminate or reduce the weekend access that she has enjoyed. There is no evidence that this access has exposed the children to harm or a risk of harm. It is acknowledged that this access did not assist Ms. E.D. in proving parenting strengths as she thought it would but where she lacked parenting strength did not translate into risk of harm to the children in context of access alone. I do not adopt the submission that the two times she asked Mr. J.D. to keep the children translate into a complaint related to every weekend. The two events were special circumstances and it was not unfair for her to ask the favour. Finally, Mr. J.D. did not testify that he wanted weekend time or how he would spend it in the interests of the children.
[103] However, the court is not yet prepared to consider the more extended visits Ms. E.D. asks for during school breaks. Ms. E.D. still exhibits significant weakness in regard to management and routine and the more the children are with her, the more likely they will be exposed to the varied risks discussed above. When the court is satisfied that these issues can be managed, extended visits can be considered.
[104] Since this order will survive through the 2012 Christmas holiday, I will order that Ms. E.D.'s access this year will be from 9:00 a.m. on December 24 to noon on December 25, provided concurrent access with Daniel is resolved and provided Ms. E.D. is responsible for transportation of the children both ways for this particular visit.
[105] Both parents should be entitled to access to schools and doctors unless such access might lead to conflict. Presently, I am of the view neither parent is ready to personally discuss anything about the children without the possibility of conflict with the result that it is not yet time to implement any terms demanding consultation or any circumstance where Ms. E.D. is in a position to disregard or oppose Mr. J.D.'s instructions to doctors or schools. I intend to order Mr. J.D. to execute consents allowing Ms. E.D. to speak with the girl's family doctor to obtain information and authorizing the school to deliver to Ms. E.D. copies of report cards and notices of open houses, concerts, pageants, sports and extra-curricular activities.
Order
[106] J.D.D. who was born […], 2007 and S.D. who was born […], 2008 shall be placed in the care and custody of Mr. J.D. subject to the supervision of the applicant herein for a period of 12 months from this date.
[107] The terms of supervision are as written in the amended application, numbers 1 to 4, 7, 8 and 9.
[108] Number 5 is amended as follows: "[Ms. E.D.] and [Mr. J.D.] shall actively attend and participate in counselling recommended by the applicant to address their separation, ongoing attachments and relationship issues between them."
[109] Number 6 is amended as follows: "[Ms. E.D.] and [Mr. J.D.] shall actively attend and participate in programs recommended to address age appropriate expectations of both parents respecting the safety of children in and about their homes and effective strategies for monitoring the children; and, any additional or residual programs for either parent identified in the reports filed as exhibits in this proceeding as requiring further attention."
[110] Number 10 is amended as follows: "The applicant shall initiate discussions with [Ms. E.D.'s] London worker to identify and coordinate information about [Ms. E.D.'s] issues surrounding attention deficits, anxiety, stress, impulsiveness and self-esteem and the applicant shall, in conjunction with the London worker, identify specific programs or interventions targeted specifically at these issues and [Ms. E.D.] shall actively attend and participate in any strategy to identify or resolve any of these issues."
[111] Number 11 is amended as follows: "[Ms. E.D.] and [Mr. J.D.] shall maintain a safe and hygienic home environment for the children in either's care."
[112] Number 12 and 13 in the amended application are deleted.
[113] New number 12 shall read: "[Mr. J.D.] shall prepare, execute and deliver to [Ms. E.D.] consents entitling [Ms. E.D.] access to speak with the children's family doctor from time to time about their medical well-being and authorizing the children's school from time to time to deliver to [Ms. E.D.] copies of the children's school reports and notices of open houses, concerts, pageants, sports and extra-curricular activities."
[114] New number 13 shall read: "[Ms. E.D.] and [Mr. J.D.] shall notify the applicant with particulars about every person who might exercise some minimal parenting role or function with the children in order to allow a child welfare background check to be made of that person and [Ms. E.D.] and [Mr. J.D.] shall follow the direction of their worker in regard to limits in contact between the person and the children."
[115] New number 14 shall read: "[Mr. J.D.] shall forthwith remove from his home all desk-top and laptop computers whether presently operable or in parts. [Mr. J.D.] is entitled to have in his home his existing NetTop device and cellular telephone provided he removes from them any application allowing access to any form of computer game or Facebook account and [Mr. J.D.] shall allow the applicant or its designate access to both devices and any location in his home to confirm compliance with this term. [Mr. J.D.] shall not access in his home or, while the children are in his care from any other location, any application on any device that allows computer gaming and Facebook use."
[116] Ms. E.D. shall have access to the children every Friday at 5:00 p.m. until Sunday at noon and from 9:00 a.m. on December 24, 2012 to noon on December 25, 2012 provided concurrent access with Daniel is adjusted accordingly and provided Ms. E.D. is responsible for transportation of the children both ways for this particular visit.
Justice Michael P. O'Dea