WARNING

The court hearing this matter directs that the following notice 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 Information

Ontario Court of Justice

Date: 2014-06-03

Court File No.: Belleville, Ontario 295/11

Between:

Highland Shores Children's Aid Society, Applicant,

AND

C.G., R.G., and P.L. Respondents.

Before: Justice E. Deluzio

Heard on: May 5, 6, 7, 8, 9, 14, 15, 16, 29, 2014

Reasons for Judgment released on: June 3, 2014

Counsel

• Cynthia Law — counsel for the Applicant Society
• Jeffrey Vandekleut — counsel for the Respondent, C.G.
• Isak Feuer — counsel for the Respondent, R.G.
• P.L. — on his own behalf
• Heather Smith McGurk — counsel for the Office of the Children's Lawyer, legal representative for the children, D.G. and Z.G-G
• Heidi Breier — counsel for the Office of the Children's Lawyer, legal representative for the child, J.L.

Deluzio J.:

[1] Introduction

This is a Status Review Application by the Highland Shores Children's Aid Society ("the Society"), involving three children, namely, J.L., DOB […] 1999 (hereinafter "J."); D.G., DOB […], 2005 (hereinafter "D."); and Z.G-G., DOB […], 2009 (hereinafter "Z."). The Society is seeking supervision orders for all three children, with J. remaining in the care of her mother, C.G., and D. and Z. being placed in the care of Z.'s biological father, R.G. At this time all three children are in the primary care of their mother.

[2] Initial Concerns and Current Issues

When the children were first apprehended in August 2011 the protection concerns were the mother's drinking, leaving the children with inappropriate caregivers, and parental neglect. Since the boys were returned to their mother's care, the Society has not received any referrals about the mother's drinking and she has not been seen to be under the influence of alcohol. However, the Society has become increasingly concerned about the risk of emotional harm to the children in their mother's care. C.G. has demonstrated her inability to recognize and meet the emotional needs of her children by her lack of commitment to regular and frequent access with her children while they were in care, her denial of sibling access between J. and D. and Z. and her termination of R.G.'s access with D.

[3] Society's Position

The Society argues that the children remain in need of protection on the basis of risk of emotional harm and that it is in the best interests of D. and Z. that they be placed in the primary care of Z.'s biological father, R.G., subject to the supervision of the Society, with supervised access to their mother, in the Society's discretion.

[4] J.'s Situation

The Society and J.'s Children's Lawyer believe that J. should be in her father's care but given J.'s stated wish to reside with her mother and have no contact with her father, the Society concedes that a supervision order with J. remaining in her mother's care is the only realistic protection order that can be made for her.

[5] C.G.'s Position

C.G. consents to a further supervision order with all three children remaining in her primary care. She now agrees that R.G. can have alternate weekend and shared holiday access with both boys; and says that J. can see her father if she wishes.

[6] R.G.'s Position

R.G. and his partner, Ms N., are proposing that both boys be placed in their primary care, subject to the supervision of the Society.

Ms Smith–McGurk, Children's Lawyer for D. and Z., supports the Society's position that it is in the best interests of both boys that they be placed in the care of R.G. and Ms N., subject to the Society's supervision and with supervised therapeutic access to their mother.

BACKGROUND

[7] Initial Apprehension

The children were apprehended in August 2011 when the Society received a referral from the mother of a 14 year old babysitter who was left with the children overnight.

[8] Circumstances of Apprehension

C.G. admits that on the night the boys were apprehended she was drinking and had stayed out all night but she maintains that she had paid the babysitter's mother $60.00 to be responsible for the children overnight. She took no responsibility for the apprehension. She repeatedly referred to the night of the apprehension as the night the Society "grabbed her children for no reason". She said she blamed the boys' apprehension on Ms. P., the woman J. was staying with at the time, and believed that because the babysitter's mother and Ms. P. knew each other that somehow Ms. P. was behind the apprehension because she wanted custody of J.

[9] C.G.'s Lifestyle

C.G. also admitted that at the time of the apprehension, it was her normal routine to be out of the home three or four nights per week at a karaoke bar.

[10] C.G.'s History with the Society

C.G. has a long history with the Society and has been supervised by the Society on and off for almost thirty years. She has had seven children with six different fathers. The historical protection concerns have been C.G.'s drinking, inappropriate caregivers, multiple domestic partners, inadequate supervision and neglect of the children.

[11] Section 54 Assessment Findings

In her Section 54 Assessment report, dated January 24, 2014, Ms Thompson writes:

"During the current assessment Ms G. was categorically negative about all of her former partners. Ms G. has seven children, with six different, and at times uncertain or unidentified fathers. She was dismissive of the fathers of her children, indicating most were alcoholics, and she did not need them. It is very concerning that Ms G. introduced adults into the home, allowing them to care for her children and develop relationships with the children, without concern for the impact of these temporary relationships on the children's emotional development. Ms G.'s derogatory statements regarding these individuals indicates she does not have insight into the fact she has a pattern of choosing to leave the children in the care of individuals who may be inappropriate and even dangerous to the children. The records of the Society further indicate that Ms G. did not attempt to maintain the children's relationships with their fathers, but actively discouraged them..."

[12] Ongoing Supervision and Concerns

Most recently, C.G. had been working on a voluntary basis with the Society since 2009. A.B., who worked with C.G. from 2009 to 2010 and again as a children's services worker in 2011, testified that her ongoing protection concerns were general neglect, lack of stimulation for the children, inappropriate caregivers, and out of control behaviours of the children. When Ms A.B first started working with the family D. was 3, J. was 9 and DU. was 14. DU. was often left babysitting the younger children and J. demonstrated parentified behaviors towards D. When she was reassigned to the family in 2011, after Z.'s birth, Ms A.B noted the same concerns, and testified that even D. was demonstrating parentified behaviours towards Z. She said that the boys were very attached to each other and that D. was always trying to make Z. happy.

C.G.'S ACCESS

[13] Reduction of Access Visits

Following the apprehension, access was arranged three times per week, but C.G. reduced her access visits from three times per week to once per week. She told her worker, Ms A.B., that she could not manage access three times per week because she had other appointments and obligations. The Society did not want to reduce access because the Society's plan was to reintegrate the boys into C.G.'s care. C.G. testified and admitted that she asked for only one visit per week, but she could not remember why she asked for fewer visits. She said she thought it was because she was "doing stuff… I don't know …" When trying to come up with a reason C.G. was vague and seemed unconcerned. She did not express any insight or understanding about how her decision to reduce access may have affected her children. Ms. A.B. observed that during the visits it was J. who was most attentive and responsive towards the boys. She also observed that the boys did not demonstrate any difficulty leaving their mother at the end of the visits.

[14] Chaotic Visits and Parentification

Christine Duncan has been a child protection worker with the HCAS for 8 years. She was assigned to the G. file on August 24, 2011. Ms Duncan supervised some of the visits between C.G. and the children. She said the visits she supervised were chaotic. She said D. was defiant and J. tried to take over the visits and parent the boys herself. She observed a very strong attachment between the boys and J. and said that during the visits the boys looked to J. when they wanted something, even though their mother was right there. She said J. was very parentified and would remember a Society worker's instructions or input from a previous visit and remind her mother about what she should do. She said J. would even intervene in directing the boys to apologize to each other.

[15] Z.'s Hospital Stay

During Thanksgiving weekend in October 2011, Z. was accidentally burned while attending a bonfire with his foster parents. During his hospital stay at the Hospital for Sick Children in Toronto, C.G. only visited Z. once, staying for only 15 minutes. C.G. testified that she left the hospital and returned to Belleville because the nurses asked her to leave Z.'s room when Z. became upset and agitated. C.G. said Z. was upset because he wanted to see her and yet C.G. did not visit Z. in hospital again. She said she did not want to see Z. in the hospital because she did not want to visit him with Society workers or the foster parents present. C.G. also refused to attend Z.'s follow up medical appointments because she did not want to be there with Z.'s foster parents. When she testified about this incident and was trying to explain her reasons for not visiting her young son in hospital, C.G. did not appear to understand or appreciate how her lack of contact with Z. while he was in hospital may have been emotionally harmful to him.

[16] Return of Boys to Mother's Care

Notwithstanding C.G.'s failure to exercise regular access with her children while they were in care, the Society proceeded with reintegrating the boys at home. D. and Z. were returned to their mother's care in December 2011. At that time J. was still with Ms. P. She wanted to see her brothers, but she did not want contact with her mother.

Z. AND D. RETURN HOME

[17] Interim Supervision Order

On January 27, 2012, C.G. agreed to an interim supervision order and plan of care. On March 8, 2012 D. and Z. were found in need of protection and placed in the care of their mother subject to a six month supervision order, incorporating the terms of supervision contained in the interim plan of care.

[18] Non-Compliance with Plan of Care

Ms Jennifer Legge is the current protection worker. She testified that C.G. has not complied with most of the terms of the plan of care. She has never completed a substance abuse assessment and has refused to participate in regular drug and alcohol screening. She has never advised the Society in advance of alternate caregivers, has never competed mental health assessment or attended parenting programs. She has not completed individual counseling, and has refused to allow Society workers access to her home to visit with children.

[19] Denial of Sibling Access

After the boys were returned to C.G.'s care, she would not co-operate in arranging access between J. and the boys. C.G. made comments to Ms. A.B. that J. was "systemized" and would "taint" her brothers. J. wanted to be able to call the boys at home, but C.G. would not allow the phone contact. Ms A.B. testified that in fact visits between the boys and J. were positive. They had a very close connection with each other. The boys idolized J. and were very affectionate with her during visits. When J. didn't see her brothers she would become depressed and sad. J. believed her mother was punishing her. J. was not invited to see the boys on D.'s birthday that year or for Christmas access. J. reported leaving frequent voice messages, trying to contact her brothers, and these calls went unanswered.

[20] Court Orders for Sibling Access

This Court ordered sibling access on two occasions. On January 27, 2012 the Court ordered that "J. was to have access with D. and Z. in the Society's discretion". On October 24, 2012 ordering specified access for R.G. including alternating weekly access with Z. and alternate weekend access with D.; and ordered that sibling access between J. and the boys "shall be arranged by the CAS and may involve P.L. and R.G."

[21] C.G.'s Justification for Denying Access

C.G. agreed she did not want J. staying with Ms. P. and therefore she did not want J. to call from "that lady's house". C.G. testified that she recalled that there were many times when she did not let J. visit the boys. She said it was because she knew J. was not in counselling, and she did not want J. around the boys until she "got counselling to deal with the way she was". Under cross examination, C.G. agreed that she did not consider J.'s emotional needs when she interfered with J.'s access to her younger brothers. She says she now knows this was the wrong thing to do.

J.

[22] J.'s Initial Protection Order

J. was found in need of protection by Order of Justice Malcolm, made on June 20, 2012. She was made a Society Ward for twelve months with access to her mother, and her biological father, P.L., in the Society' discretion and consistent with J.'s wishes. At that time J. did not want to return home and her access with her mother had been very limited. Unfortunately, J.'s placement in the P. home had broken down and she experienced several foster placement breakdowns before she was placed in her father's care on August 24, 2012.

[23] J. in Father's Care and Return to Mother

J. remained in her father's care for almost a year. On January 23, 2013 Justice Malcolm made an Order, on consent, pursuant to Section 57.1 of the Child and Family Services Act, R.R.O., 1990 c.C.11, granting P.L. sole custody of J., with access to her mother in accordance with J.'s wishes. On June 23, 2013 P.L. allowed J. to have an unsupervised visit with her mother and by the following day J. was refusing to return to her father's care. J. continues to reside with her mother and now refuses to have contact with her father at this time.

[24] P.L.'s Evidence - Early Relationship

P.L. testified. J. is his only child. When P.L. became involved with C.G. she was pregnant with her son, DU., and had two other children, R. and J. They lived together for nine years. He says that C.G. rarely interacted or played with her children, rarely cooked meals, and would just let the children do what they wanted to do. His relationship with C.G. ended when J. was 4 or 5 years old, and J. remained in C.G.'s custody.

[25] P.L.'s Difficulty Exercising Access

P.L. says he had great difficulty exercising regular access with J., and police incident reports filed by the Society corroborate his evidence that he frequently had to involve the police to enforce his access rights. He says J. was unhappy and doing poorly at school just prior to her apprehension in 2011. He was having regular alternate weekend access with J. before and after her apprehension.

[26] J.'s Happiness Outside Mother's Care

P.L. felt that J. seemed happier when she was out of her mother's care and in the care of her neighbour, Ms. P. During his visits with J., J. was describing positive, child focused activities she was participating in, instead of complaining about what was happening at her mother's home. He says J. did worry about D. and Z. once they were returned to the care of their mother.

[27] Family Group Decision Making Conference

P.L. had extended summer access with J. in 2012. During the summer of 2012 a family group decision making conference was held. J. participated. C.G. was invited to the conference but she did not to attend.

[28] J.'s Year in Father's Care

J. remained in P.L.'s care for the following school year. P.L. described an active child focused family life during the year that J. lived with him. He said J. enjoyed participating in family activities and seemed happy in his home, but did complain about being bullied at school. He said that J. returned to her mother's care after telling him she did not like the grade 8 graduation dress that P.L. purchased for her. J. had been having regular contact with D. and Z. at her mother's home since December 2012. He says that J. worried constantly about her younger brothers and wanted to see them. Towards the end of the school year, J. was communicating with her mother on the internet. P.L. thinks J. wanted more freedom and did not like living with him in the country.

[29] Limited Contact Since Return to Mother

P.L. has had only two phone calls with J. since June 2013. During the last call, which occurred in April 2014, J. told P.L. she did not want him to go to Court, she was doing well in school. She accused P.L. of not loving her and only wanting her for the money. P.L. says that J. is welcome in his home and can come and live with him if she wants to live with him.

[30] J.'s School Performance in Father's Care

J.'s school records, filed as Exhibit # 2, confirm that J.'s school performance improved significantly during her Grade 8 year when she was in P.L.'s care. In her final grade 8 report card dated June 17, 2013 J.'s school performance is summarized as follows:

"J. is personable, cooperative and a respectful student. She has made tremendous strides throughout this school year. She has shown a consistently good outlook towards learning and striving to be ready for high school…."

[31] J.'s School Performance After Return to Mother

J.'s Grade 9 report cards tell a much different story. She has attended two different high schools this year. She is failing or at risk of failing several courses and has missed many classes.

MR R.G. ACCESS WITH Z. AND D.

[32] Initial Access Arrangements

The Court made orders about R.G.'s access. On January 27, 2012 the Court ordered that R.G. would have reasonable access with the boys in the discretion of the Society. Following this Order C.G. and R.G. were able to arrange access between R.G. and both boys, and the Society was satisfied with these arrangements. The Society did not have any protection concerns when the boys were in the care of R.G. and Ms. N. The visits quickly expanded from overnights to weekends and by June 2012 C.G. and R.G. had agreed that R.G. would have both boys in his care for alternate weeks during the school summer holiday.

[33] Report of Bruising on D.

On July 10, 2012, during a weeklong access visit R.G. noticed bruising on D.'s arms and contacted the Society. R.G. testified that he reported the bruises because he was worried that he would be blamed for them. D. was interviewed by a Society worker and disclosed that his older brother DU had grabbed him by the arms and caused the bruises. D. also disclosed seeing mom drink beer in the home.

[34] C.G.'s Retaliation

The Society investigated and C.G. was informed of D.'s disclosures. Text messages exchanged between R.G. and C.G., admitted by C.G. and filed as Exhibits, reveal that by July of 2012 R.G. was having access to both boys during alternate weeks. C.G. was angry about the disclosure and follow up investigation and she responded by denying R.G. access with D. The text messages also reveal that D. was enjoying his visits and excited to spend time with R.G. She also reneged on an earlier offer to allow R.G. alternating weekly access with Z., and restricted his access to alternate weekends only.

R.G.'s BACKGROUND

[35] R.G.'s Observations of C.G.'s Parenting

R.G. started a relationship with C.G. when D. was 18 months old. J. was 6 or 7. His observations about C.G.'s parenting are consistent with the evidence of the Society workers who testified, and are corroborative of P.L.' evidence. He says D. was often locked in a car seat in front of the television set watching cartoons. He says there was no discipline in the house, and the children were out of control. He saw little interaction between C.G. and the children. He says DU. was a "built in" babysitter who was always changing D. and always looking after J. R.G. says that at the start of his relationship with C.G. they went to bars a lot but he says he eventually stopped going to the bars and he started looking after D. He says all of the children called him dad, even DU. He heard C.G. constantly say in front of the children that their fathers were all alcoholics and she did not need them. The only father he ever saw was P.L., and C.G. would threaten J., when J. was acting up, telling her that she would never see her father again. He says J. was always trying to get outside. He watched C.G. put screws in the front door to prevent the children from opening the doors.

[36] R.G.'s Separation and Impaired Driving Charge

R.G. testified that he and C.G. were already separated when he found out she was pregnant with Z. They reconciled briefly and he was there when Z. was born on […], 2009. Three days after Z.'s birth R.G. was arrested for impaired driving. He testified that he left Belleville in November 2010 and moved to Arnprior, where he met Ms. N. He said that C.G. refused to allow him regular access. She told him he could see the children during Christmas 2010 but then called him Christmas eve to tell him she had changed her mind. She said she did not want him to have access because he had been charged with impaired driving and she said she did not want R.G. in and out of children's lives if he was going to be sentenced to jail.

[37] R.G.'s Criminal Record and Current Status

R.G.'s criminal record was admitted by him and filed as an Exhibit at trial. He has an extensive record, including several impaired driving convictions. He admits that most of his criminal conduct has been related to his drinking. He says he only drinks beer occasionally now and never to excess. His life has changed since his relationship with Ms. N. and especially since he started having regular access with Z.

[38] R.G.'s Path to Accessing Z.

R.G. found out in September 2011 that the children had been apprehended. His mother was having regular contact with C.G. and it was his mother who told him. He had been convicted of impaired driving and knew he would be sentenced to custody so he waited until serving a 60 day sentence before pursuing access. Then he found out Z. had been injured in a fire. Again, his mother, not C.G., told him. His mother, who was living in Montreal, picked him up in Arnprior and drove him to the Society office and then he started to have access with Z. at the Society office. First saw Z. a week after Z. got out of the hospital. He was travelling from Arnprior once a week for one hour and then visits were extended to a few hours. Ms. N. was driving him for the visits. She does all the driving because he is not permitted to drive. Once R.G. started having access he and Ms. N. relocated to Napanee and then Shannonville so he could be closer to his son. At first his home access with Z. was partially supervised by Jennifer Legge, then extended to overnight.

[39] Improved Relationship with C.G.

After a Final Order was made on March 8, 2012 with the boys in C.G.'s care, subject to weekly access by R.G., in the Society's discretion, his relationship with C.G. improved and they started to make their own access arrangements.

[40] Ms Legge's Observations of R.G. and Ms. N.

Ms Legge testified that she first met R.G. and Ms. N. in her office after Z. was injured (burned). Found both to be positively oriented people who were concerned about how to meet the Society's expectations in order to establish a relationship with Z. Even the very first visit was very positive. From the beginning R.G. expressed an interest in seeing D. and concern about all four children, including J. and DU. Ms Legge says that he talked about having had a father-son relationship with D. and how he saw D. as his son. Ms Legge observed visits in R.G.'s home. Z. was very comfortable and proud of his room. Ms. N. completed PRIDE training at the request of the Society. The Society quickly expanded access from supervised access at CAS to access in R.G.'s home. The visits all went well. All observed visits were very positive and child focused. Ms Legge also had opportunities to observe D. with R.G. and Ms. N. and D. was happy and well cared for in their home.

[41] D.'s Emotional Response to Loss of Access

R.G. and Ms. N. testified that when D. was no longer allowed to go they saw D. looking out the window with his head down and looking about to cry. One time D. went out the back door and he smiled and waved good bye.

[42] D.'s Changed Demeanor After Access Stopped

Ms Legge testified that when she attended C.G.'s home after access stopped D.'s demeanour had changed. There was no eye contact or engagement which was different than previous interactions. She did follow up with visit at the school and D. maintained that he did not want to attend access.

[43] Ms Legge's Assessment of R.G. and Ms. N.

Ms. Legge described R.G. as a positively oriented, optimistic, engaging social person. She described Ms. N. as equally engaging, caring, and hopeful. Ms Legge testified that she believes that contact between Z. and R.G. and Ms. N. has "nourished and encouraged his personality and that Z. has benefited from stimulation and enrichment they have provided during visits".

[44] D.'s Activities in Mother's Care

Ms. Legge testified that she has asked D. repeatedly to talk about what he does for fun when he is with his mother and he is not able to articulate experiences he has shared with his mother. Instead, he tells her he plays a lot of video games, including games that are not age appropriate.

[45] Court Order for Access and Non-Compliance

On October 24, 2012 the Court ordered specified access for R.G. with both Z. and D., including alternating weekly access with Z. and alternate weekend access with D. C.G. maintained her position that D. did not want to attend access with R.G. and the access Order, made October 24, 2012, was not complied with as it related to D.

RECENT ACCESS BETWEEN D. AND R.G.

[46] Section 54 Assessment Order

On March 7, 2013 the Court ordered a Section 54 Assessment and made a further Order strongly recommending that access between D. and R.G. be reinstated in the discretion of the Society.

[47] Delay in Reinstating Access

Notwithstanding the Court's orders directing access between D. and R.G., D. did not attend access with R.G. until December 4, 2013 when C.G. consented to an access visit for D., as part of the Section 54 Assessment.

[48] Enforcement Attempts

No attempts were made by the Society or R.G. to enforce this access until after the Section 54 Assessment was released in January 2014 when R.G. brought a motion seeking a finding that C.G. was in contempt.

[49] February 7, 2014 Access Attempt

A visit was arranged for February 7, 2014. R.G. and Ms. N. went to pick up the boys at C.G.'s home and Z. came out to the car and said "D. wants to talk to you dad". R.G. says he knew right away D. was not coming. D. came to his car, with his head down. A male friend of C.G.'s, D.J., was with D. D. did not have his coat on and did not have an overnight bag. R.G. said to D. "so you are not coming" and D. had his head down and just shook his head. Then D.J. turned him around and directed him back to the house.

[50] February 21, 2014 Access Attempt

The next visit was arranged with the boys to be picked up at the school on February 21, 2014. While R.G. and Ms. N. were waiting for D. to arrive from a school bus trip, a friend of C.G.'s showed up to drop Z. off. The friend stayed and waited until D. arrived on the bus. She must have already known that D. was not going on the visit. Once again, D. did not have anything packed. R.G. said D. started walking towards him and when R.G. asked if he was coming he put his head down and shook his head.

MS N.

[51] Ms. N.'s Background and Commitment

Ms. N. testified. She impressed the Court as positive, happy, and engaging. She plays a significant care giving role with both boys. She described a happy, active, child-focused home. She has always worked and currently works a night shift Sunday to Thursday at a factory. She chose the 11:00 p.m. to 7:00 a.m. shift so she could get the boys to and from school because R.G. does not drive. She says she does not need much sleep. She and R.G. have been in a relationship for 3 and ½ years. She knows about R.G.'s history with drinking and she knows about his criminal record. She says he has not had any issues since they have been together. He served his last sentence in 2011 before he started seeing Z., and he has had no new charges. Ms. N. says she is behind R.G. 100 percent in pursuing custody of the boys. She and R.G. have never missed any visits with the kids, even when they were travelling from Arnprior to Belleville and the visits were just for an hour.

[52] Ms. N.'s Observations of the Boys

Ms. N. testified that between March 2012 to July 2012 their access progressed from day to overnights. Easter was the first overnight for Z. and right after that they started getting D. every weekend and then it went to a full week. She described Z. as a very happy go lucky child. She says D. is different now than he was before the visits stopped. She says D. is a sad, quiet little boy. She says since D.'s visits have resumed the boys actually fight over their dad but R.G. does not favour one over the other. She says he is constantly playing with the boys. They never use any physical discipline on the children. She agreed that R.G. used to be a heavy drinker but he only has a few beers now and does not drink at all when the boys are with them.

EVIDENCE ABOUT RECENT COURT ORDERED ACCESS

[53] Julie Hoskins' First Observations

Julie Hoskins, a supervised access worker with HCAS, was assigned to observe access between D. and R.G. after the Court ordered week about access for both boys, starting April 7, 2014. Ms Hoskins attended the G./N. home six times and observed several exchanges at the CAS offices. She said that R.G. and Ms. N. live in a cozy home in Shannonville beside a large field. There are toys inside and outside for the children. She said that both R.G. and Ms. N. are child focused and have good parenting strategies. She said the boys are treated equally and if she did not know she would not have been able to say which boy was R.G.'s biological son. During her first visit, when D. had only been in the G./N. home for three days she found D. to be quiet, unsure and a little uncomfortable while Z. presented as a cute, talkative, outgoing little boy.

[54] Julie Hoskins' Subsequent Observations

During subsequent visits Ms Hoskins said she observed D. be more comfortable, outgoing, relaxed, happy, joking and playful. She said his interactions with both R.G. and Ms. N. were natural and relaxed. She observed him doing reading homework with Ms. N. and playing with R.G. On one occasion she noted that when Z. was bugging D., D. got up and went to sit beside R.G. She said she had no concerns at all about D. in their care. She did note that when she observed D. at the CAS office, waiting to be picked up to return to his mother's home, he had his head down and was looking at the ground. She asked him if he had fun at his dad's home and he said "yeah".

C.G.'S EVIDENCE

[55] C.G.'s Testimony About Changes

C.G. testified. She says she has quit drinking and no longer goes out to karaoke bars three or four times a week. Since the boys have been going with R.G. she only goes to the bar when they are with him. She says that she is supportive of access between her children and their fathers. She says that she has tried to encourage J. to see P.L. but J. refuses to go.

[56] Assessment of C.G.'s Credibility

C.G. was not a credible witness. She frequently contradicted her own evidence, both during her examination in chief and when cross examined. Her evidence was inconsistent with previous sworn affidavit evidence. Throughout her testimony she demonstrated little insight into how her previous actions may have negatively impacted her children. She says she has changed but she communicated no remorse or regret about her previous lifestyle and how it may have affected her children. She seems unconcerned about her lack of contact with her older children.

[57] C.G.'s Contradictory Explanation for Stopping Access

Although the text messages clearly demonstrate that C.G. made the decision to terminate R.G.'s access with D., in response to R.G.'s report about D.'s bruises, C.G. maintained in her testimony that she stopped access because D. did not want to go anymore. She could not explain when D. made this decision and acknowledged that D. was still in R.G.'s care where she sent R.G. the text saying she was stopping the access and reducing his time with Z. Clearly D. had not made a complaint to C.G. at that time.

[58] C.G.'s Affidavit Evidence

In a recent Affidavit, sworn March 31, 2014, and filed before the text messages were disclosed, C.G. says after D.'s second visit with R.G. in the summer of 2012 D. told her he did not want to go anymore. She says D. told her that R.G. was mean and that he was forcefully thrown on the bed. She says that since then D. has not wanted to have anything to do with R.G. She says that she has done everything to comply with the Court ordered access and that just before the access visits with D. would occur she could encourage D. and repeatedly ask him to try it. She said he would get very upset and say he would hide if forced to go. She says D. would also say repeatedly that "he's not my dad".

[59] C.G.'s Cross-Examination on Stopping Access

When pressed further about this issue under cross examination C.G. gave the following explanation for stopping the visits in July 2012:

"it had something to do with D.'s bruises on his arms….I was sick of the accusations and being blamed for everything… so I said no the bruises did not come from my home… I don't believe it happened in my home… they are saying it came from DU. from wrestling but when my boys leave…… and yes I said you are no longer getting D. because I am sick of the lies… I stopped it yes I did…. And after that D. didn't want to go because he was telling me R. was mean to me…. R.G. didn't give me a hard time or nothing.. he just let it go on. He still had access to Z. …"

MID TRIAL DISCLOSURE

[60] C.G.'s Report of Alleged Abuse

C.G.'s mid trial disclosure about Z. reporting, four days earlier, that R.G. had hit him on his face and back, causing bruises, is of great concern. The report to the Society happened over the lunch hour, just before R.G. was to be cross examined. C.G. told Ms Legge that on the previous Saturday evening while she was bathing Z., she saw three little bruises on his back and asked Z. where he got them. She said that Z. said "daddy slaps me on the back all the time" and then he demonstrated daddy slapping him across the face. C.G. also told Ms Legge that Z. has regularly told her that his dad slaps him.

[61] Ms Legge's Interview with Z.

The Court was informed that a disclosure had been made and Court adjourned early that day so that the disclosure could immediately be investigated by Ms Legge. Ms Legge interviewed Z. first. She said he was able to tell her the difference between the truth and a lie. She then asked how things how things were going at dad's and he said good. She said he was very happy and smiling with no sign of distress. She then asked him if he had been hurt by dad and she said he quickly looked at her and demonstrated by slapping his own face. Ms Legge then I asked him if that was the truth or a lie and Z. looked down and said a lie. Ms Legge said Z. kept repeating the words "I lie, I lie" in a goofy voice. Ms Legge then asked Z. if he was ever hit by anyone and he said firmly "no. no one has ever smacked me". Ms Legge then asked Z. if he told his mom that his dad hurt him, Z. would not answer and then he ran out of the room. Ms Legge examined Z.'s back and saw three very small pink bruises. She said the bruises were not suspicious and could have happened in play. There were no hand marks or slap marks.

[62] D.'s Statement to Ms Legge

Ms Legge asked D. if he had ever seen Z.'s dad hurt Z. and he said no. He had seen R.G. pick up Z. and take him to his room.

[63] R.G. and Ms. N.'s Response

Ms Legge also met with R.G. and Ms. N. at the Society office. R.G. said he has never hit Z. and he was upset and shocked by the allegations. Ms. N. said she had never seen R.G. hit the boys, but said the boys had been rambunctious – physical with each other and she had to give D. a time out when she saw him punching Z. in the stomach.

[64] Ms Legge's Assessment of the Disclosure

Ms Legge found the disclosure to be "not verified" and she expressed concern about the suspicious timing of the disclosure and Z.'s confused responses during her interview of him – his demonstration of being slapped, his refusal to admit telling his mother, his denial that he was ever hit by R.G. and his words "I lie, I lie". Ms Legge expressed feeling "deeply sad about having to interview Z. and take pictures of the marks on his back", and said she was deeply concerned about Z.'s emotional safety.

[65] C.G.'s Explanation for Delayed Reporting

C.G. was cross examined about the suspicious timing of her report about Z.'s bruises and his alleged disclosure. She said she did not contact the Society earlier because she did not think the Society would believe her. She could not explain why she had not at least told her lawyer, since they had been together in Court the previous three days. She said she did not know why she had not told Mr. VandeKleut.

EVIDENCE OF D.K.

[66] D.K.'s Role and Limitations

C.G.'s sister, D.K., testified. She describes herself as a support person and advocate for C.G. She testified that she has been involved fulltime with C.G. and her children for three years, since the children were apprehended. Early on in the Court proceedings Ms D.K. and her husband both filed Affidavits offering to support and assist C.G. in her care of the children, but it became clear when Ms D.K. testified that her support is limited to advising her sister. She is not willing to assist with caring for the children. It was clear from Ms D.K.'s testimony, that she sees her role as a coach and mentor to her sister, but she has minimal involvement with the children and keeps the children at arms-length. She would not be willing to care for C.G.'s children or more than a day or two if they were removed from C.G.'s home again, or if J.'s relationship with C.G. broke down again. Ms D.K. testified that she has taken on primary responsibility for J.'s schooling, but she had not even seen J.'s most recent report card and was unaware that J. was failing one course, and doing poorly in several other courses.

[67] D.K.'s Prior Lack of Involvement

Before the children were apprehended they did not even know Ms. D.K. Ms. D.K. testified that she knew the Society was involved with C.G. due to concerns about C.G.'s drinking, and her lifestyle, but she was too busy in her own life to get involved before. Ms. D.K. conceded that she has lived in the Belleville area with her family for the past ten years, and was aware that the Society was regularly involved with C.G. and her children due to ongoing concerns about C.G.'s drinking, and neglect of the children, but she had almost no contact with C.G. until her children were apprehended. Although she has children the same age as C.G.'s older children, including a son who is the same age as C.G.'s son DU., her own children have never even met C.G.'s children.

DISCUSSION

[68] Observations of D. in R.G.'s Care

All of the witnesses who have observed D. in R.G.'s care both before access was terminated and since access was started again, including Ms Legge, Julie Hoskins, and Meredith Thompson, say that D. is happy and well cared for in the home of R.G. and Ms. N. These same witnesses describe a close affectionate relationship existing now between D. and R.G., despite a 20 month interruption in their relationship.

[69] D.'s Conflicting Statements

At some point after C.G. stopped the access visits, D. started to say that he did not want to go anymore. He still says this to his Children's Lawyer, while at the same time telling her that he enjoys his visits and is happy during extended visits in the G./N. home.

[70] Comments About Biological Fatherhood

D. and Z. have both made comments about R.G. not being D.'s "biological father". They have heard this from someone else. D. has been told his own biological father is an alcoholic but he has never been told his father's identity.

[71] C.G.'s Active Encouragement Then Termination

The text messages support and corroborate the evidence of R.G. that for a few months C.G. actively encouraged a father-son relationship between R.G. and D., and then when D. was enjoying the visits, looking forward to his time with R.G., she stopped the visit with no regard for the emotional impact that would have on D., who had to watch his younger brother leave every other weekend, knowing about the fun activities Z. would enjoy with R.G. and Ms. N.

[72] Meredith Thompson's Observations of D. with R.G.

When Meredith Thompson tried to arrange a single supervised office visit between R.G. and D. for the purpose of the Section 54 Assessment, she was met with much resistance from both C.G. and her sister, Ms. D.K. C.G. insisted that D. was unwilling to attend the visit and Ms D.K. predicted that D. would be unwilling to even enter a room where R.G. was present. Ms Thompson writes that when C.G. agreed to the visit she did so, she proposed that her sister Ms D.K. would bring D. to her office, so that Ms Thompson could see D.'s response for herself. In fact, the visit was a positive one. She said that when D. first entered the room where R.G., Ms. N. and Z. were waiting, Z. "rushed with joy at D. and they hugged intensely, falling onto the loveseat". She described D. as initially inhibited, sitting stiffly refusing any offered snacks or physical contact other than with Z. and difficult to engage in conversation. As the boys played together, D. became more relaxed and began to easily interact verbally with R.G. and Ms. N. During the visit D. become relaxed, enthusiastic and engaged. His face lit up and he appeared vibrant and happy. She said he happily made plans for the next visit. She writes that "throughout the visit Z. discussed excitedly with D. about coming to visit at "our house" although he stated "his mom says he can't come to our house"". She noted that on his return to his Aunt, D. was again subdued and inhibited.

[73] Parental Alienation Concerns

Ms Thompson notes in her report that:

"At the age of eight D. is at a stage of being vulnerable to the effects of parental alienation, as he is able to maintain his mother's distorted perception of R.G. while he is experiencing the reality of his relationship with R.G. D. is in an intolerable position, in that he is aware that his mother does not approve of his having a relationship with R.G., yet this positive relationship allows D. to be himself. While the effects of this alienation are apparent in this situation, it has not yet developed to the extent we witness in J.'s relationship with her father. In my opinion it is urgent this process be interrupted before it progresses to a severe state of alienation."

[74] Contrasting Demeanor in Different Environments

Ms Thompson observed that both Z. and D. demonstrated markedly different demeanours in the presence of C.G., as compared to being with R.G. When she observed the boys in their mother's home, C.G. "displayed little interest in the children's activities or behaviour". She notes that D. was very subdued and there was little verbal or physical interaction between mom and the children. In contrast, she saw positive, playful, nurturing interactions between both R.G. and Ms. N. with Z. in their home, and even during the one hour office visit with D.

[75] Ms Thompson's Recommendation

Ms Thompson testified that she is very worried about the current access arrangements continuing because D. would not feel emotionally safe in expressing to his mother that he wants a relationship with R.G. She recommends that both D. and Z. be placed in the primary care of R.G. with supervised, therapeutic access to their mother, involving a social worker present in the room to ensure that access is positive and beneficial for the children.

DECISION

[76] Status Review Hearing Framework

This is a Status Review Hearing, pursuant to Section 64 of the Child and Family Services Act. The parties agree that the children are in need of protection and that there is evidence to support a continued finding that the children are at risk of emotional harm in their mother's care. The parties also agree that a further supervision order is necessary. The issue to be determined is what protection order is in the best interests of the children.

[77] Court's Authority Under Section 65

Section 65 of the Child and Family Services Act provides that where an Application for Review of a child's status is made under Section 64, the Court may, if satisfied that the child's best interests require a change, make a further order or orders under Section 57 of the Child and Family Services Act.

[78] Assessment of C.G.'s Credibility and Commitment

C.G.'s admits that she was wrong to deny her children contact with each other and she was wrong to terminate D.'s access with R.G., but she did not express any remorse about causing her children emotional distress and she did not demonstrate any empathy towards her children. She lacks insight into how emotionally damaging her conduct has been towards her own children. She says she is willing to work with the Society, but her history of disregarding Court Orders, including terms of supervision and access orders, and her distrust and lack of co-operation with the Society suggests that this is an empty promise. She says she will support R.G.' access with both boys in the future but the suspicious timing of her mid trial disclosure about Z.'s allegations, and Z.'s own response when questioned by the Society Worker, suggest that C.G. will continue to interfere with the relationship the boys have with R.G.

[79] Risk of Ongoing Emotional Harm

D. has already suffered emotional harm, and the recent disclosure involving Z. raises concerns about Z.'s emotional safety in his mother's care. A supervision order cannot protect the boys from the risk of ongoing emotional harm if they remain in their mother's care, in an environment that Ms Thompson describes as negative, isolating and hostile. The boys are happy and emotionally safe when they are in the caring, nurturing and positive environment that R.G. and Ms. N. provide.

[80] Concerns About R.G. and Conditions

Throughout his dealings with the Society over the past three years R.G. has presented as stable and very focused on the best interests of both Z. and D. He has a loving supportive partner in Ms. N. and she is an important and integral part of his plan to care for the boys. But I am concerned about R.G.'s drinking and his volatility when he is intoxicated, as evidenced by his criminal record. I am concerned about the recent incident when R.G. says he fell down the stairs and suffered broken ribs and a collapsed lung. I hope he really did trip over a cat and was not intoxicated at the time but the bar tender's evidence and the coincidence in the timing of the two events makes me suspicious. R.G. has a long standing alcohol problem and he must commit to alcohol counselling and regular attendances at AA meetings. R.G.'s care of the boys must be supervised by the Society.

[81] Final Order

Therefore, there will be a Final Order as follows:

(a) The children, J., D. and Z., are found to be at risk of emotional harm, and they continue to be in need of protection.

(b) J. shall remain in the care of C.G., subject to the supervision of the Society.

(c) D. and Z. shall be placed in the care and custody of R.G. and Ms. N., with regular therapeutic, supervised access with C.G., as arranged by the Society, subject to the supervision of the Society in accordance with terms of supervision set out in a Plan of Care to be filed by the Society and subject to the approval of the Court.

Released: June 3, 2014

Signed: Justice E. Deluzio