WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.—(7) Order excluding media representatives or prohibiting publication.
The court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
45.—(8) Prohibition: identifying child.
No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.
45.—(9) Idem: order re adult.
The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
85.—(3) Idem.
A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court Information
Timmins File No.: 62-11(00)
Date: 2014-11-28
Ontario Court of Justice
Between:
North Eastern Ontario Family and Children's Services, Applicant
— And —
C.G., K.T.2 and L.J., Respondents
Before: Justice Randall W. Lalande
Heard on: 14-17 April 2014; and 16-18 July 2014
Reasons for Judgment released on: 28 November 2014
Counsel and Representation
Justin J.B. Ellery — counsel for the applicant
C.G. (respondent mother) — on her own behalf
K.T.2 (respondent father of K.T.1) — on his own behalf
L.J. (respondent father of E.G.J.) — on his own behalf
Liisa Parisé — counsel for the Office of the Children's Lawyer, legal representative for the children
1: INTRODUCTION
Background and Parties
[1] Ms. C.G. (the "mother") and Mr. K.T.2 ("K.T.1's father") are the biological parents of K.T.1 (15 years of age) born on […], 1998.
[2] Ms. C.G. (the "mother") and Mr. L.J. ("E.G.J.'s father") are the biological parents of E.G.J. (9 years of age) born on […], 2005.
[3] On May 2, 2011, the Northeastern Ontario Family and Children's Services (hereinafter referred as "the agency") received a referral from the Timmins Police Service "the police"). For reasons referred to later in this decision, the child K.T.1 was ultimately apprehended and brought to her father's home. She has continued to reside with her father since that time. She has since refused to have access with her mother.
[4] On May 4, 2011, the child E.G.J. was apprehended from her mother and placed with her father, Mr. L.J..
[5] On May 9, 2011, Justice Martin P. Lambert made a temporary "without prejudice" order placing K.T.1 with her father, Mr. K.T.2 and placing the child E.G.J. with her father, Mr. L.J..
[6] On June 24, 2011, Justice Lambert conducted a section 51 hearing under the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended. He ordered that the child K.T.1 remain in her father's care. The child E.G.J. was returned to her mother subject to a supervision order in favour of the agency.
[7] On July 12, 2012, the child E.G.J. was re-apprehended from her mother. On July 16, 2012, Justice Ralph E.W. Carr made a temporary order that E.G.J. again be placed in the care of her father subject to supervision by the agency and pending further order of the court.
[8] Both children continue to reside with their respective fathers. The child, K.T.1 has continually resided with her father since May 2, 2011. The child E.G.J. resided with her father from May 4, 2011 to June 24, 2011 and then continuously from July 12, 2012 to the present.
[9] The agency is seeking a custody order of the child K.T.1 in favour of her father Mr. K.T.2 and a custody order of the child E.G.J. in favour of her father Mr. L.J.. Both orders are sought under section 57.1 of the Child and Family Services Act.
Mother's Position
[10] With regard to both children, the mother opposes that there be a finding of "in need of protection". In consequence, she opposes the court's making orders under section 57.1 of the Child and Family Services Act and asks that the protection application be dismissed. More specifically, the mother takes the following position:
That the child E.G.J. be returned to her care. In the alternative, if the application is not dismissed, she be granted generous and unsupervised access;
That the child K.T.1's wish to remain with her father be respected. She would not oppose a custody order made in favour of K.T.1's father under the Children's Law Reform Act, R.S.O. 1990, c. C-12, as amended. She does not seek terms of access at this time but aspires to be a presence in the child's life in the future.
Support for Agency Position
[11] Ms. Liisa Parisé has been appointed by the Office of the Children's Lawyer to represent both children. She supports the position taken by the agency. Both fathers support the position taken by the agency.
Procedural Timeline
[12] The following are some of the key dates relevant to procedural steps and court attendances:
| Date | Court Attendance |
|---|---|
| May 9, 2011 | A protection application was brought by the agency seeking that both children be placed with their respective fathers subject to supervision by the agency for a period of six months and for an order that the Office of the Children's Lawyer appoint counsel to represent both children. |
| May 9, 2011 | Justice Lambert made a temporary, "without prejudice" order placing both children in the care of their respective fathers. |
| June 24, 2011 | Justice Lambert rendered a decision on a motion for temporary care and custody under section 51 of the Child and Family Services Act. He concluded that there would be a risk of harm if K.T.1 were returned to her mother. Different considerations applied to E.G.J.. He allowed that she be returned to her mother subject to a supervision order. |
| December 13, 2011 | Justice Richard A. Humphrey made a decision on three motions as follows: Motion 1 — brought by the agency to transfer proceedings to Kapuskasing. Motion dismissed. Motion 2 — brought by the mother for a variety of relief. Motion dismissed. Motion 3 — brought by the father, Mr. L.J. to set a date for trial. Motion dismissed. Justice Humphrey also ordered no further motions to be brought without leave of the court. |
| July 12, 2012 | The child E.G.J. was again apprehended from her mother. |
| July 16, 2012 | Justice Carr made a temporary order that E.G.J. be placed in the care of her father subject to supervision by the agency and pending further order of the court. |
| April 8, 2013 | The agency brought a motion to amend its application to seek custody orders under section 57.1 respecting each father. |
Mother's Procedural Complaints
[13] The mother asserted on a number of occasions prior to and during the trial that she was dealt with unfairly because she was denied a section 51 hearing following E.G.J.'s apprehension on July 12, 2012 and further to Justice Carr's interim "without prejudice" order made on July 16, 2012.
[14] Justice Carr's order of July 16, 2012 placed E.G.J. with her father (Mr. L.J.) subject to the agency's supervision. He ordered that the Office of the Children's Lawyer appoint counsel for E.G.J.. Ms. Liisa Parisé was recommended.
[15] On August 15, 2012, the mother appealed Justice Carr's order of July 16, 2012. Within the appeal process, she brought several motions all of which were dismissed except for production of some hospital records and procedural matters relating to the appeal itself.
[16] On September 26, 2013, Superior Court Justice James A.S. Wilcox dismissed the mother's appeal. The operative order remains that of Justice Carr made on July 16, 2012.
[17] Within a reasonable time after the mother's appeal was dismissed, trial dates were scheduled for November 8 and 29, 2013. These dates were subsequently cancelled because the mother retained counsel but the date of November 29, 2013 was kept to conduct a trial management conference before myself. On November 29, 2013, new trial dates were set for April 14, 15, 16 and 17, 2014. After these dates were set, the mother dismissed her counsel and, on December 4 (or 5), 2013, she filed a change of representation indicating that she would again be representing herself.
[18] The status quo with respect to the child E.G.J. has been maintained since July 16, 2012. Between Justice Carr's order of July 16, 2012 and the setting of the trial dates on November 29, 2013, the mother had been focused on the appeal. No date was sought for a section 51 hearing. As indicated, the appeal was dismissed on September 26, 2013. Trial dates were pending and it would not have been feasible at that late date to conduct a motion (section 51 hearing) substantially dealing with the same issues to be dealt with at trial. Moreover, given the passage of time (and trial dates having been set), it was in the best interest of the children to make a final determination based on the evidence to be called at trial. Additionally and on a practical basis, there would be no available time to accommodate a lengthy section 51 hearing before trial.
[19] The trial of this matter took place over two set blocks of time namely April 14, 15, 16 and 17 and then on July 16, 17 and 18, 2014. Although the issues for determination were not unusually complex, the case proceeded slowly largely because of the mother's approach to the litigation.
2: ANALYSIS
2.1 First Apprehension (Both Children)
[20] The agency's involvement started on March 8, 2011. The agency received a call from the Jeanne Sauvé Child and Family Services to assist in the interview of the mother and the two children. At the time, the mother was in a relationship with Mr. S.C.. The concerns raised had to do with a sexual abuse investigation involving Mr. S.C.'s son.
[21] Lynne Larabie is a child protection worker employed by the agency. According to Ms. Larabie, although the matter could have unfolded in a rather straightforward manner, the mother declined to meet with her. The mother's subsequent unrelenting quarrelsome approach and unwillingness to co-operate heightened Ms. Larabie's overall concern about the welfare of the children. Essentially because the mother played close to the vest with any and all information, Ms. Larabie became increasingly suspicious about the level of care she was providing to the children. The mother essentially took the position that the agency was intruding in her life notwithstanding any bona fides that the agency may have had in pursuing even the most superficial aspects or phases of its investigation.
[22] A similar referral was received by the agency on March 29, 2011 regarding physical discipline used by the mother and regarding arguments of an ongoing and troublesome nature between herself and her partner Mr. S.C..
[23] The child K.T.1 was interviewed at school by Lynne Larabie on April 1, 2011 and again at her father's home on April 27, 2011. She expressed being fearful of her mother's bouts of anger and methods of physical discipline. She gave an example of having sustained some bruising to her forearm approximately six weeks prior when her mother grabbed her arm and pushed her onto her bed. She said her mother also slapped her on the back of the head when angry. She also identified an incident when her mother had harshly struck her sister E.G.J. on the hand.
[24] On April 1, 2011, the child E.G.J. was privately interviewed at school. According to Ms. Larabie, she confirmed that her mother and Mr. S.C. "screamed" at each other. She said that she saw Mr. S.C. slap her mother on the shoulder as well as Mr. S.C. smashing a guitar during a separate argument with her mother.
[25] When approached by Ms. Larabie, the mother said that she felt that K.T.1 was lying. She also became very angry with Ms. Larabie. She expressly refused to meet with Ms. Larabie and, on April 7, 2011, stated (over the telephone) that the agency was "a little cult" which she would not allow to control her family. According to Ms. Larabie, the mother used profanities and maintained a staunch unremitting refusal to co-operate.
[26] Lynne Larabie spoke with K.T.1's father (Mr. K.T.2) on April 27, 2011. K.T.1 was refusing to return to her mother's home. The mother called police. She wanted them to assist by bringing K.T.1 back to her home. K.T.1 reported being fearful of her mother's anger issues and violent outbursts.
[27] Statements taken from children are not necessarily determinative of any issue. They are relevant in assessing the general circumstances of the agency's investigation including reasons for apprehension. There is no basis here to conclude that the statements given by K.T.1 and E.G.J. are in and of themselves fundamentally unreliable. These statements must be given appropriate evidentiary weight and of course measured within the ambit of the totality of the evidence.
[28] It is against this backdrop that the events of May 2, 2011 unfolded resulting in the police bringing K.T.1 to her father's home. On that day, a further referral had been received by Timmins Police Service. The mother had attended at K.T.1's school to bring her to a counselling appointment. K.T.1 refused to go with her. The mother called police. According to Ms. Larabie's evidence, the mother was reported to have been yelling and screaming at K.T.1 and at the police officer in attendance. She said that K.T.1 displayed being anxious and fearful and was essentially begging not to be forced to leave the school with her mother. Police brought K.T.1 to her father's home.
[29] A few days later and on May 4, 2011, E.G.J. was apprehended. She was later returned to her mother's care further to Justice Lambert's section 51 decision released on June 24, 2011. She was re-apprehended on July 12, 2012.
2.2 Second Apprehension (E.G.J.)
2.2(a): Dr. Colin Ucar's Call to the Agency
[30] E.G.J. was re-apprehended from the care of her mother on July 12, 2012. The agency's investigation was triggered by a telephone call made by Dr. Colin Ucar. Dr. Ucar has been practising as an emergency physician at the Timmins and District Hospital since 2004. He was called as the agency's first witness to explain the circumstances of his meeting with the mother and E.G.J. at the hospital.
[31] According to Dr. Ucar, at around 5:00 a.m. on July 12, 2012 and during a busy shift, he saw E.G.J. who was in the company of her mother. He said he thought she was reported as having shortness of breath and an upper respiratory cough. He asked as a matter of routine whether E.G.J. had been exposed to second hand smoke. In his recollection, the mother quickly became angry and stated "You are here to see my daughter, not me", "What I do is not your goddam business". Her relationship with Dr. Ucar from that point deteriorated very quickly. She presumably felt targeted by the question because she quickly became agitated and disputatious.
[32] Dr. Ucar advised the mother that she had the option of seeing the next physician at 8:00 a.m. He thought she was going to do so. Although the mother waited until about 6:00 a.m., she decided to leave. She told the nursing staff that she would be attending at the Anson General Hospital at Iroquois Falls.
[33] Dr. Ucar also testified that the mother aimed her anger at the nurses and staff who were on duty at the time. At one point, the mother indicated that she was going to sue everyone involved. In a question put in cross-examination, Dr. Ucar stated he felt that the accelerated rate at which the mother got angry was in itself concerning to him. The following entry was made in his physician's chart (exhibit 1):
Child not examined as pt's mother took her by the hand and escorted her out of the department amidst yelling and swearing both at author and at nurses at nursing station.
[34] Dr. Ucar finished his shift at 8:00 a.m. but, before leaving the hospital at 9:00 a.m., made a call to the Anson General Hospital at Iroquois Falls. He did so in order to see whether the mother had in fact attended there with her daughter as she said she was going to do. He ascertained that she had not. He felt that because E.G.J. had an abnormal vital sign (which needed to be clinically assessed), it was necessary for her to be seen by a physician.
[35] After ascertaining that the mother had not attended at Anson General (as she said she would), Dr. Ucar called to report the matter to the agency. He indicated he felt that he had no option on a professional level but to do so. At the time he placed the call to the agency, he did not know that the mother had in fact attended at a different hospital with E.G.J. namely the Lady Minto Hospital at Cochrane. Shortly before 9:00 a.m. on July 12, 2012, E.G.J. was seen by Dr. Xiaobin Li at Lady Minto Hospital.
[36] Later that day after E.G.J. was apprehended, she was returned to the care of her father Mr. L.J.. On July 13, 2012, he brought her back to the hospital at Timmins. Dr. Ucar was again on call. He examined and assessed E.G.J.. In his testimony, he spoke favourably of E.G.J.'s father's insight about her condition and was pleased with his level of co-operation.
[37] In cross-examination, the mother engaged in a verbal sparring match (of sorts) with Dr. Ucar. Her focus was to admonish him for having placed a call to the agency. Her theory was that he maliciously made the call because he was displeased over his interaction with her. In essence, she felt that his call to the agency was retaliatory in nature and not as a result of any professional responsibility.
[38] In cross-examination, Dr. Ucar did say "The accelerated rate at which you got angry was concerning". The following wording also appears in the physician's chart:
Pt's mother very dramatic, paranoid, stated she was going to call the police to have me arrested . . . planning to go to Iroquois Falls.
[39] In my view, there is no evidence upon which to find that Dr. Ucar called the agency for nefarious purposes. The evidence strongly points in the opposite direction. Dr. Ucar waited until 9:00 a.m. and, in so doing, provided the mother and with adequate window of time to attend at the hospital at Iroquois Falls where she specifically stated she was going to go. He called the agency only after ascertaining she had not attended at Anson Hospital with the child. Dr. Ucar may have been perturbed by his confrontation with the mother's but he had not met her before and it cannot be assumed that he had a personal axe to grind. Moreover, although he categorized her as being rude and angry, he was not unaccustomed to dealing with members of the public in various challenging circumstances. In my observation of Dr. Ucar, he appeared quite composed. He did not appear to be the type of person who would be easily flustered or prone to react imprudently.
[40] According to the mother, by making the improperly motivated call to the agency, Dr. Ucar unwittingly played into the agency's hand. In her view, the agency continued to favour the idea of E.G.J.'s being cared for by her father (notwithstanding Justice Lambert's decision of June 24, 2011) and seized the moment to act in concert with E.G.J.'s father. In that context, it would be the mother's theory that the agency immediately planned to apprehend E.G.J. after receiving Dr. Ucar's complaint and engaged the father who was eagerly awaiting to co-operate.
[41] In order to enhance her theory that the agency was called by Dr. Ucar out of spite, the mother subpoenaed Dr. Xiaobin Li. In deference in his busy schedule, Dr. Li was allowed to testify out of turn. His evidence dovetails with that of Dr. Ucar; hence, I shall refer to it at this point.
[42] Dr. Li was the emergency doctor on duty at Lady Minto Hospital at Cochrane. The mother and E.G.J. attended on July 12, 2012 shortly after 9:00 a.m. The mother's objective in calling Dr. Li to testify was to show that he arrived at a different diagnosis (than Dr. Ucar) thus, at least in part, vitiating the concerns voiced by Dr. Ucar in support of his eagerness to call the agency at her expense.
[43] Dr. Li appeared to arrive at a different diagnosis excluding an "asthmatic component". He prescribed an antibiotic (Zithromax) to replace the antibiotic medication that E.G.J. was already taking. In his view, E.G.J. may have manifested a reaction.
[44] In cross-examination, Dr. Li was presented with respiratory test results which had been taken at the hospital at Timmins. In a straightforward way, he said that he could not disagree that the testing resulted in a finding consistent with asthma or a moderately severe obstructed airways disease. Dr. Li was honest and forthcoming. He clearly admitted being prepared to defer to the respiratory specialist who interpreted the respiratory test results. He clearly stated that he did not have such testing at his disposal for consideration when he saw E.G.J..
[45] It should also be noted that, when Dr. Li examined E.G.J., her oxygen level (Sa O2) was at 100. When seen by Dr. Ucar earlier, her oxygen level was at 93. Dr. Ucar flagged this as eyebrow-raising. Dr. Li did not disagree that an oxygen level of 93 would be considered low. He specifically stated that a level lower than 95 may indicate something to be wrong with the lungs or airway.
[46] On balance, I am more than satisfied that Dr. Ucar had a valid or legitimate medical reason to foster concern about E.G.J.'s health and subsequently follow-up. He wanted to ensure that she was seen. Had the mother attended at Iroquois Falls Hospital as she said she was going to do, he would not have called the agency. He had no way of knowing that the mother chose instead to attend at the hospital at Cochrane.
2.2(b): The Agency's Response
[47] Ms. St. Jacques responded to the referral made by Dr. Ucar. She is a child protection worker employed by Northeastern Ontario Family and Children Services. She worked with the mother from June 13, 2011 to February 27, 2013. In her evidence, Dr. Ucar was concerned about E.G.J.'s not having been medically assessed in circumstances where she had presented with respiratory related issues.
[48] Ms. St. Jacques located the mother (and E.G.J.) at her own mother's home in Iroquois Falls. Ms. St. Jacques attended at the home in the company of two uniformed OPP officers. She spoke to the mother through a screen door and requested entry to the home to verify E.G.J.'s presence and to ensure her safety. Entry was flatly denied.
[49] The following excerpts appear from Ms. St. Jacques evidence:
The police officer opened the screen and unlocked the door and entered the home. [The mother] ran around the corner and called out for her daughter E.G.J.. She picked up E.G.J. in her arms and requested that she not let go . . . she started shouting that [the agency] was part of a conspiracy theory…she began yelling at her daughter not to let her go and to bite and kick the police officers . . . the police officer removed E.G.J. from [the mother's] grip . . . [The mother] threatened to add them to her lawsuit.
[50] During the process of the apprehension and according to Ms. St. Jacques' evidence, police did try to calm the mother down but to no avail. Her focus appeared to be to resist intervention at all costs rather than to respond to inquiries the agency was making within its mandate regarding the welfare of her child. Ms. St. Jacques stated:
During my short-lived involvement with [the mother], she often tried to use threats of suing or have a distorted belief that there was a conspiracy theory against her to cause her misery.
[51] Ms. St. Jacques is not a medical expert but, in her opinion and as a result of her dealings with the mother, the issue of the mother's mental health had to be considered. In that context, she stated the following:
It is in my opinion that [the mother] requires a full psychological assessment in order to insure her mental health is stable prior to providing any care to her daughters.
[52] Of looming significance here is that the mother knew it was important for E.G.J. to be medically assessed. She knew this because she in fact did attend at hospital at Cochrane with E.G.J.. The explosive exchange she had with Dr. Ucar was pivotal in her leaving the Timmins Hospital. She and Dr. Ucar became involved in a very discomforting exchange. She said she felt degraded. She said she became distraught. She described him as arrogant, unprofessional, incompetent and chauvinistic.
[53] Dr. Ucar presented as a straightforward witness. He was well poised and fully aware of the details of the encounter with the mother. There is no reason to discount his credibility. In simple terms, he did what he professionally thought was necessary. His focus was on the child when he made the call and not on the mother. I am satisfied he was not vindictively motivated as suggested by the mother.
2.3 Section 54 Assessment Order
2.3(a): Persons Assessed
[54] The agency brought a motion for a section 54 order which was granted further to the trial management conference on November 29, 2013. The mother was represented by counsel at that time. Her counsel requested that the order include the following persons (in addition to the mother), namely: her two daughters, their respective fathers and Ms. T.R. (the spouse of the younger girl's father).
[55] The mother objected to the first draft of the order which in fact mistakenly did not include all above-named persons. She was advised that this oversight had been caught and that the draft was corrected. The endorsement granting the order reads as follows:
The order for assessment requested under section 54 of the Child and Family Services Act is granted, however, at the request of the respondent, [the mother], the scope of the assessment shall be broadened to include the children K.T.1 born on […], 1998, E.G.J. born on […], 2005 and Ms. T.R., the respondent Mr. L.J.'s spouse. Counsel are asked to consult on the format (and standard) wording to be used for purposes of the order. Dr. Fitzgerald has consented to complete the assessment within a defined timeframe and meets the necessary criteria.
Note: The endorsement initially referred to "Ms. Smith" as Mr. L.J.'s partner/spouse. This has been corrected to read "T.R.".
[56] In accordance with the section 54 order, the mother was requested to sign necessary consents to permit Dr. Fitzgerald to obtain a variety of documents including records from treatment centres, psychological records and medical records. She refused to provide the consents. Dr. Fitzgerald made efforts to co-ordinate a meeting with the mother. He conducted a telephone conversation with her on February 28, 2014. She indicated in no uncertain terms that she would not participate in a parenting capacity assessment. Dr. Fitzgerald felt threatened by her. In his letter (dated March 4, 2014) prefacing his assessment report, he indicated as follows:
Furthermore, she stated that she does not consent for me to have contact with either of her daughters for the purpose of conducting this assessment. As well, she threatened that she would seek to cause damage to my professional reputation as well as to create financial hardship by suing me and embroiling me in a protracted civil court proceedings should I proceed with this parenting capacity assessment. Such threats and the refusal to co-operate with the assessment clearly create a toxic environment which represents a significant impediment to a balanced evaluation. Therefore, I want to make it clear that I will not conduct an assessment of [the mother] without her complete and unreserved co-operation . . . should she wish to proceed with the assessment, her full co-operation will be essential.
[57] In the mother's view, Dr. Fitzgerald was a hired gun and his report was intended to rubber-stamp a decision which the agency had already arrived at. She referred to the order as "fishing expedition" intended to justify an intrusion into her family's life. She stated that she viewed this as a breach of her rights to life, liberty and security.
[58] Dr. Fitzgerald prepared a comprehensive assessment report which was filed with the court on April 8, 2014. In his opinion, the assessment effectively addressed the issue of the parenting abilities of the two fathers and the spouse of the younger girl's father. He said that they all appeared to be very capable of parenting the children currently in their care. Because the mother refused to participate in the assessment, it was not possible for Dr. Fitzgerald to answer questions pertaining to her.
2.3(b): The Child K.T.1
[59] Dr. Fitzgerald described K.T.1 as an alert, intelligent and insightful 15 year old. He felt that she was personable and co-operative during his evaluation. He described her as having average intellectual ability and strong academic skills. He said she was goal-orientated and that there is no indication that she suffers from any emotional or behavioural difficulties.
[60] Dr. Fitzgerald did indicate that it appears that K.T.1 has been affected by the exposure of a traumatic and chaotic home environment earlier in her life. He states that, in the past, K.T.1 has been bothered by intrusive thoughts and sensations related to her relationship with her mother. He said that she is choosing to not have any direct or indirect contact with her mother although she does not rule this out as a possibility in the future. Dr. Fitzgerald was satisfied that K.T.1 made the decision to completely avoid her mother (at this time) after careful thought and deliberation. He does not disagree that, at least at this time, her decision is best for her own health and emotional well-being.
[61] K.T.1 is described as having a loving relationship with her father and step-mother and is very comfortable in their home. According to Dr. Fitzgerald, it is clear that K.T.1 has flourished in her father's care and clearly desires to remain living with him until such time as she is able to live independently as an adult. There is no indication that she needs any type of therapeutic intervention either at the family level or individually. She may consider becoming involved in some form of counselling at a later date. Dr. Fitzgerald says that there are no indications from his assessment that K.T.1 would benefit from any change in placement nor at this time does there appear to be any merit in making an order for access with her mother that is not consistent with her wishes.
2.3(c): The Child E.G.J
[62] Dr. Fitzgerald describes E.G.J. as a bright, socially confident and outgoing girl who speaks positively about her current situation. By all accounts, she is developing nicely and is quite successful at school while having ongoing involvement with friends and activities in the community. There are no indications of social, emotional or behavioural difficulties. E.G.J. told Dr. Fitzgerald that she was comfortable living with her father and step-mother and that she wanted to continue living with them.
[63] Dr. Fitzgerald indicated that E.G.J. enjoys a positive home environment. In his view, continuing to have E.G.J. remain living with her father and step-mother is "very likely" to be advantageous to her healthy development. In essence, Dr. Fitzgerald concluded that remaining her current home would likely be very beneficial for E.G.J..
[64] In the assessment report, Dr. Fitzgerald does mention that E.G.J.'s father believes that he can work collaboratively with E.G.J.'s mother to make flexible access arrangements work for them all. Although Dr. Fitzgerald understands the importance of the mother's access (whether supervised or not), he does mention that issues of safety need to be carefully considered because it is very important that E.G.J. be protected from exposure to unstable adult behaviour and conflict. In other words, it is important that access to the mother in no way undermine the stability of the relationship that E.G.J. has developed with her father and step-mother.
2.3(d): The Mother
[65] Dr. Fitzgerald was not able to evaluate any risk or emotional harm to E.G.J. resulting from contact with her mother. He did in a theoretical way only indicate that individuals with undiagnosed or untreated mental health problems could pose risk for neglect and maltreatment of children in their care. He did identify the existence of a potential risk for emotional harm due to unresolved custody issues between E.G.J.'s mother and father. In his opinion, E.G.J. needs to be protected from being drawn into conflicts. He suggested that any effort by one parent to alienate her from the other should be viewed as maltreatment.
[66] Dr. Fitzgerald acknowledges that E.G.J.'s father and his partner T.R. feel strongly that it shall be important for E.G.J. to maintain a relationship with her mother. In his view, because the mother did not participate in the assessment, it was not possible to assess her willingness or ability to engage in access that is entirely child-focused and that will not undermine E.G.J.'s relationship with her father and T.R. or for that matter be a source of distress due to other types of conflict or disruption.
2.3(e): Generally
[67] Dr. Fitzgerald provided a thorough parenting capacity assessment but was not able to provide a full scope analysis because of the mother's refusal to participate. His ultimate conclusion, based on the assessment he was able to conduct, is that there would be no merit in making an access order contrary to K.T.1's wishes in favour of the mother and that continuation of the status quo would be in E.G.J.'s best interest. He remained somewhat guarded on the thought of the mother's access to E.G.J. but did not totally discount the advantage of the father's willingness to work in harmony with the mother on this front.
2.4 The Mother's Access
[68] As clearly expressed by Ms. Parisé, who was appointed to represent the children by the Office of the Children's Lawyer, the child K.T.1 is seeking to remain in her father's care and does not wish to have access or contact with her mother. There has been no ongoing access by the mother to K.T.1 since her apprehension. As earlier stated, the mother is mindful of K.T.1's position and is content that the status quo remains.
[69] Ms. Parisé, with reference to the child K.T.1, submitted that nothing should change. K.T.1 continues to express reservations about seeing her mother. Ms. Parisé advises that K.T.1 is comfortable with her decision (at least at this time) and on her behalf would seek that no order of access be made or that access be subject to her wishes.
[70] In Ms. Parisé's submission, because of K.T.1's age, it is important to consider her views and preferences. Her father supports her position. He also indicated that he will support her at any future time that she may decide to reconnect with her mother.
[71] Further to E.G.J.'s re-apprehension on July 12, 2012, arrangements were made for her to have supervised access visits with her mother on Saturdays at New Liskeard (plus telephone communication). The access visits were initially set from 11:00 a.m. to 2:00 p.m. on Saturdays. On October 19, 2013, the access was changed to 11:00 a.m. to 3:00 p.m. on Saturdays plus telephone communication.
[72] Several workers who supervised the mother's access visits testified. Generally, they identified a strong bond between E.G.J. and her mother. For the most part, the workers were able to speak positively about the interaction between E.G.J. and her mother during the access visits.
[73] Derek Dallaire supervised a number of visits between February 2013 and December 2013. He observed the mother demonstrating affection toward E.G.J.. He spoke positively about the way the mother was engaging E.G.J. and playing games with her. In his view, E.G.J. appeared to be at ease when with her mother.
[74] Amy Kirkey gave evidence. She stated that E.G.J. looked forward to the access visits but that the visits did not always take place. She provided a list of dates where access was scheduled but did not take place. She also said that the telephone access was at times sporadic. In speaking about one visit that she did supervise, she confirmed that it was positive. She indicated that the mother was able to meet E.G.J.'s needs and was affectionate toward her. They had appropriate conversations and the visit was pleasant.
[75] To be noted is that E.G.J.'s father does not oppose the mother's having reasonable regular and even unsupervised access. In his submission, access at this time is to be responsibly encouraged. He expressed no prevalent concern at the level of care that E.G.J. now receives (or would receive) while with her mother. Assuming he remains the custodial parent, he is open to the court's granting unsupervised access every second weekend subject to the mother's undertaking to not smoke in the home and subject to his approval of the adequacy of the mother's home.
[76] According to Ms. Parisé, the child E.G.J. enjoys time spent with her mother and would like access to be extended. She expresses a strong attachment to both her parents. She enjoys a good lifestyle with her father but at the same time would like to enjoy as much access as reasonably possible with her mother.
[77] Ms. Parisé indicated that the issue of whether access should be unsupervised remains the "unknown". The mother has refused to sign any authorizations and this has made it difficult for Ms. Parisé as counsel to the children to unreservedly support the idea of unsupervised access.
[78] On behalf of the agency, Mr. Ellery indicated that should the court order custody of E.G.J. in favour of the father, it would be very difficult for the agency to monitor access on an ongoing basis. In his submission, the mother has not been willing to work with the agency on a collaborative basis in the past and there is no reason to think that her attitude will change. On the other hand, the agency has full confidence and faith in the level of care being provided by the father. In that respect and because there would be no protection concerns vis-à-vis the father in his role as custodial parent, the agency is at this time prepared defer to his parental judgment in making direct reasonable access arrangements with the mother, not contrary to E.G.J.'s best interests.
3: CONCLUSION
3.1: General
[79] The trial of this matter took longer than expected. Thirteen witnesses were called by the agency. The mother did not call any witnesses but provided lengthy testimony. Neither father testified or called witnesses. Numerous exhibits were filed. It shall not be possible within the ambit of these reasons to refer to all of the evidence, but all of the evidence relevant to the case has been considered for the purpose of completing these reasons.
[80] Following the trial management conference on November 29, 2013, the mother dismissed her counsel and chose to represent herself. I was not dis-impressed during the trial by the mother's ability to formulate and pose questions. She was articulate, spoke clearly and, for the most part, remained composed. Although she worked energetically throughout the trial, her focus kept diverting to many issues of marginal importance. She seemed fixed on confronting the agency at every step of the way. In essence she persisted on navigating upstream. Rather than dealing with the issues in a practical way and focusing on E.G.J.'s best interests, she spent much of her energy disparaging the agency for having had the audacity of pursuing its investigation(s).
[81] From the agency's perspective, the mother's lack of co-operation and defiant approach in dealing with its workers hindered its ability to easily move forward with its investigation. The task of determining what steps to take to ensure the welfare of the children became unnecessarily more complicated and arduous.
[82] I did my best to maintain proper courtroom protocol throughout the trial and at the same time allow the mother ample procedural latitude. Strict time limitations on cross-examination (by the mother) were avoided although it was necessary to provide time guidelines. The mother remained insistent on filing copious materials mostly of minor relevance to the case. She also frequently made unhelpful references to the Constitution, the Charter, lawsuits, appeals and procedural unfairness which unnecessarily distracted from the real focus of the case. Generally, balancing the task of ensuring procedural fairness and at the same time controlling the court process became more of a challenge.
[83] The following points are relevant in describing the approach taken by the mother to the litigation:
- The mother has accused agency worker, Lynne Larabie of falsifying claims and fabricating evidence. At paragraph 37 of her affidavit provided on April 8, 2014, she states:
Lynne Larabie then goes even further and makes a falsified claim of abuse and begins formulating her plan to apprehend the child to spite the mother for having complained to the Executive Director. She fabricated and pre mediated a bias finding to support her decision to remove K.T.1. She had to find a good reason for her intrusive decision of telling her not to return home on two occasions and now keeping her from returning on the day of her mother's birthday. K.T.1's father of course supports the reason that the child not return and is happy because he fought in court for sole custody for 9 years and lost and he figured that CAS will do it all for him.
- The mother suggested that the agency was involved in some type of entrapment plan relative to the child K.T.1's apprehension. She states at paragraph 47 of her affidavit provided on April 8, 2014:
The mother then realized that [the agency] and the father hoped and planned for the mother to attend the school to speak to the child. Nobody from [the agency] was returning her calls to give her reasons why she was not coming home and this was entrapment and the child was told what to do and say . . .
- The mother indicated that the father, Mr. K.T.2, fabricated facts and utilized police to get what he wants. She also indicated Mr. K.T.2 believed that Justice Carr ruled in his favour because he (Justice Carr) and his parents are Christians. This is mentioned in the mother's affidavit of April 8, 2014 at paragraph 47:
. . . K.T.2 knew full well that the child was not at risk of harm and utilizes police and [the agency] with fabrications to get what he wants. (He believes because his uncle used to be the chief of police and because some family members of his work at [the agency] that they will cover for him anytime. He also believes and has mentioned in the past numerous times that Justice Carr rules in his favor because the judge and his parents are Christians. He said his lawyer Kenneth Alexander made sure it was Justice Carr presiding.)
- In her cross-examination and upon being questioned about her lack of co-operation, the mother stated:
There is nothing I can do when the justice system is corrupt.
According to the mother, the agency capitalized on the referral made by Dr. Ucar and seized the moment to act in concert with E.G.J.'s father to remove E.G.J. from her care;
According to the mother when Ms. Larabie attended her mother's residence on July 12, 2012, it was for the pre-planned purpose of apprehending E.G.J. and not to simply verify the state of her welfare;
The following comments were made to Mr. Ellery by the mother during his cross-examination:
I think you should go back to school Mr. Ellery.
You have a tendency to mislead the court, Mr. Ellery.
You have a vendetta against me because I brought the Law Society complaint against you.
During cross-examination by the agency's counsel (Mr. Ellery) the mother walked off the witness stand. She refused to be further cross-examined by counsel representing the agency because she thought the questioning constituted an abuse of process.
The mother refused to participate in the parenting capacity assessment prepared by Dr. Fitzgerald in accordance with the court's order.
[84] I agree with Justice Lambert's comments made on June 24, 2011 where he indicated as follows:
The disposition of this case is very problematic given the mother's difficult personality; she refuses to co-operate with the Society and she sees conspiracies everywhere. The voluminous, often repetitive and prolix materials which she filed on this motion speaks volumes of her inability to see what is important and in the end, the best interest of the children. The reality is that if she had allowed the children to be interviewed about the sexual assault allegation in the first place, she would likely not be facing this crisis. Unfortunately, things have evolved to where we are today.
3.2: The Application
[85] The hearing of a protection application involves four stages, as follows:
The court is first required to determine whether the child who is the subject of the proceedings is in need of protection within the meaning of the Child and Family Services Act;
If a protection finding is made, the court must determine whether further intervention through a court order is necessary to protect the child in the future;
The court must then make a determination regarding the placement of the child; and
The court must decide the issue of access to the child.
[86] The court may make a custody order under section 57.1 of the Child and Family Services Act, granting custody of a child to a person other than a foster parent. An order under section 57.1 is deemed to be an order under the Children's Law Reform Act and can be enforced, varied or terminated only in accordance with that Act.
[87] In essence if a court finds a child (or children) to be in need of protection, the court may, if in the child's best interests, make an order granting custody of the child to one or more persons (with the consent of the person or persons) instead of making an order under subsection 57(1).
3.2(a): Bifurcated Hearing
[88] The Child and Family Services Act contemplates a bifurcated hearing. First, a child must be found to be in need of protection in accordance with subsections 47(1) and 37(2). Subsequently, if a child is found to be in need of protection and a court determines that an order is necessary to protect the child in the future, the court must then consider what order should be made under section 57.
[89] In Children's Aid Society of Algoma v. Brenda A., 106 A.C.W.S. (3d) 470, [2001] O.J. No. 2745, 2001 Carswell Ont 2345 (Ont. C.J.), the following is stated at paragraph [21]:
. . . if a finding is made in a case, the Act does not, by subsection 50(2), require a repetition of any evidence that may apply to both finding and disposition that has already been adduced. Such evidence is already before the Court. A bifurcated proceeding is still only one proceeding. Subsection 50(2) does not purport to exclude any evidence that is relevant to disposition, it merely provides for an order of precedence of presentation of evidence in a child protection case.
3.2(b): Finding of In Need of Protection
[90] Section 37 of the Child and Family Services Act provides the headings for the court to determine under which circumstances it will find a child to be in need of protection. It is events that fall under these headings that may lead to intervention by child protection authorities. The Act was amended in 1999 (affecting applications commenced after March 31, 2000) to include emotional harm to a child (or children) as a ground for intervention. Also, the "risk" of physical or emotional harm or sexual molestation no longer had to be "substantial".
[91] A child protection proceeding is unlike ordinary civil litigation and the court can choose a flexible approach that would admit evidence arising at any time up to the date of the court hearing, subject to adequate disclosure to all parties. See Children's Aid Society of Brant v. James Albert T., 2005 ONCJ 302, 144 A.C.W.S. (3d) 278, 19 O.F.L.R. 161, [2005] O.J. No. 5249, 2005 Carswell Ont 7097 (Ont. C.J.), per Justice Lawrence P. Thibideau.
[92] Also in Children's Aid Society of Hamilton-Wentworth v. K.R. and C.W. (2001), 114 A.C.W.S. (3d) 71, [2001] O.J. No. 5754, 2001 Carswell Ont 5006 (Ont. Fam. Ct.), Justice George Czutrin referred to several guiding principles including that "best interests" are paramount, child welfare legislation is different from general legislation and to be overly technical could put a child at risk.
[93] In paragraph 1 of the protection application filed on May 6, 2011, the agency is asking the court to make a finding of in need of protection because of a risk of physical harm within circumstances set out in subclause 37(2)(b)(ii) of the Act.
[94] In the case of Children's Aid Society of Hamilton-Wentworth v. K.R. and C.W., supra, Justice Czutrin held that the court may consider whether a child is in need of protection at the commencement of the proceedings or at the hearing date or, for the matter, at any other relevant date. At paragraphs [49] and [50] of his decision, he stated as follows:
[49] [For a court to] refer only to the start date is to interpret the Act in a manner that would undermine the purposes of the C.F.S.A. If under the C.F.S.A. the only time that can be considered when determining protection is the start date, it might result in the court returning a child to a person even if the court came to the conclusion the child was in need of protection at the time of the hearing as opposed to the date of apprehension. This could potentially put a child in need of protection and potentially at risk, and would require a new apprehension after return. This cannot be in the best interests of a child. The legislation emphasizes the need to avoid having children in limbo. It cannot be in the child's best interests to create such a scenario . . .
[50] . . . the court should be free to consider whether the child is in need of protection at the commencement of the proceedings or at the hearing date, or for that matter some other date, depending on the circumstances. There cannot be an absolute rule as to the relevant date, . . .
[95] The court is not restricted by the grounds chosen in the application in the presentation of its evidence. In other words, the court is not restricted from making a finding that the children are in need of protection because the finding is made on a ground other than the one alleged in the application. See paragraphs [105]-[107] of Children's Aid Society of Sudbury and Manitoulin v. Deborah D., 116 A.C.W.S. (3d) 65, [2002] O.J. No. 3071, 2002 Carswell Ont 2585 (Ont. C.J.).
[96] Reference in these reasons to grounds leading (or not) to a finding are not to be taken as lessening the importance of any progress made by the mother in terms of her current understanding and acceptance of K.T.1's position and her existing access to E.G.J.. To her credit, the mother does not now take issue with K.T.1 remaining with her father. She has also remained a faithful presence in E.G.J.'s life through scheduled, supervised access visits.
[97] The agency received a referral on March 8, 2011. On March 21, 2011, the mother declined to meet with Ms. Larabie and would not allow her to meet with the children. A further referral was received on March 29, 2011, following which a decision was made by the agency to interview the children at school. This was done on April 1, 2011. Subsequently and on April 7, 2011, the mother was contacted by Ms. Larabie. According to Ms. Larabie the mother presented as extremely angry, used profanities and refused any co-operation.
[98] Before the agency actually formulated a plan on how or whether to move ahead with the file, K.T.1's father made contact. He notified the agency that K.T.1 was refusing to return to her mother's care. An interview was held with K.T.1. This proved to be a rather pivotal point which resulted in the agency's decision to press ahead. It was not unreasonable for the agency to have factored in the mother's steadfast and vigorous refusal to co-operate as an element of concern.
[99] In his written reasons given on June 24, 2011, Justice Lambert noted that both children had been the subject of extensive litigation over the years between the mother and the two fathers over issues of custody, access and support. Against this backdrop, while considering the facts before him (touching upon K.T.1 and E.G.J.'s apprehension), he identified the mother's difficult personality, her refusal to co-operate and her referral to conspiracies "everywhere" as factors complicating the disposition of the case.
[100] After referencing facts pertinent to the issue of temporary care and custody, Justice Lambert concluded for purposes of the section 51 hearing that there would exist a risk of harm to K.T.1 if she were to be returned to her mother, especially against her wishes.
[101] In terms of reasons triggering E.G.J.'s re-apprehension, I am satisfied that Dr. Ucar presented as a straightforward witness. He was well poised and fully aware of the details of the encounter with the mother. There is no reason to discount his credibility. In simple terms, he did what he professionally thought was necessary. His focus was on the child when he made the call and not on the mother. I am satisfied he was not vindictively motivated as suggested by the mother.
[102] The circumstances surrounding E.G.J.'s re-apprehension are troublesome. Rather than disclose to the agency that she had in fact gone to another hospital (and thus defuse concerns relative to E.G.J.'s welfare), she chose to remain silent and block entrance to the home. The mother knew police were present and ready to intervene if necessary. Nonetheless, she remained unyielding, irrespective of how the foreseeable consequences of so doing might traumatically impact E.G.J..
[103] The mother's firm unwillingness to comply with the section 54 order represents another telling feature relevant to her overall approach to the case. All other persons mentioned in the order fully participated in the assessment. Dr. Fitzgerald attempted to accommodate a time to see the mother. She bluntly refused largely because she disagreed with the granting of the order in the first place and did not want to share any information of a personal or medical nature. It should be noted that section 54 assessment reports are inadmissible as evidence in all other proceedings except appeals, inquests and civil actions for damages for abuses brought on the child's behalf, without the consent of the person assessed.
[104] Under subsection 54(7) of the Act, a court may draw any inference it considers reasonable from a person's refusal to undergo an assessment ordered.
[105] In his report provided on April 8, 2014, Dr. Fitzgerald said that K.T.1 described her mother as an angry person and provided examples of how she was frequently negligent of her and her sister E.G.J.. Starting at the early age of 13 and up to the present, K.T.1 has maintained strong unwillingness to have any type of contact with her mother. She wishes to remain living in her father's home. She has no physical or mental health problems. She is doing well in school and is socially outgoing.
[106] Dr. Fitzgerald did not have the benefit of interviewing the mother but based on his observations and assessment of K.T.1. He stated that it appeared that K.T.1 had been impacted by the effects of her earlier neglect and mistreatment. In part, he attributed this to the fact that K.T.1 was having thoughts and memories of past traumatic events related to her experiences while in her mother's care. Generally, the import of Dr. Fitzgerald's comments is that K.T.1 is now at ease and able to enjoy the comfort of a stable, routine, peaceful and non-conflicted lifestyle.
[107] E.G.J. was 6 years old when she was first apprehended on May 4, 2011. Dr. Fitzgerald did not indicate that she appeared to have been impacted by issues relating to her care while with her mother. It is to be noted that Justice Lambert in his decision released June 24, 2011 felt that different considerations should apply to E.G.J. because there did not seem to exist the same conflict between her and her mother (as there was between her mother and K.T.1). The circumstances surrounding E.G.J.'s re-apprehension on July 12, 2012 and in particular the mother's oppositional stance, are germane to the issue of a finding.
[108] An agency's decision to apprehend (or not) is usually not made in a vacuum. Here the agency received referrals in 2011. The information from the referrals provided ample enough reason for the agency to want to visit the home, obtain additional information and if necessary maintain a watchful eye. The mother refused to co-operate. Her refusal was intractable. The agency's position shifted and it became more concerned.
[109] Matters were at a stand-still for a short while but came to a head when K.T.1's refused to return to her mother's care (from school). K.T.1 and E.G.J. were interviewed despite the mother's continuing refusal to co-operate. There was an apprehension. Information obtained from K.T.1 and E.G.J. was not inconsistent with the earlier information obtained from the referrals. The mother remained disdainful of any intrusion into her personal space or privacy and chose to oppose and fight the agency every step of the way.
[110] Although the mother is free to make her own choices, the pervasiveness of her lack of flexibility within the context of a protection proceeding involving her own children remains an important factor in considering the issue of a finding. The mother had the ability to provide the agency with information that may have defused its concerns about the welfare of the children on a number of fronts. She chose not to do so.
[111] I do make an adverse inference against the mother for having refused to be assessed in accordance with the section 54 order. It is not in these circumstances unreasonable to conclude that the mother may have been worried about what the assessment may have disclosed had she complied. The court cannot speculate about what Dr. Fitzgerald's findings may have been but the reality is that the mother refused to be assessed. The mother did not refuse simply because she mistakenly thought that non-compliance with the order would somehow strategically help her case. The stronger inference is that the mother was making an effort to preserve an external cloak of acceptable parental stability in circumstances where she was emotionally having a tough time. Prevalent circumstances including information obtained from referrals, the mother's adverse reaction to any form of inquiry, K.T.1's ongoing refusal to see her mother, circumstances described by K.T.1 and E.G.J. when interviewed, the mother's heated encounter with Dr. Ucar and police are factors indicative that all was not well within the home environment.
[112] This is not a case of a single or specific incident of neglect or injury giving rise to a finding. This is a case where the totality of the evidence must be evaluated. It is a case where the protection finding must be based upon circumstances existing before the time of the apprehension, at the time of apprehension and at the time of the protection hearing.
[113] The burden of proof on the agency at the finding or adjudication stage is the ordinary civil onus founded upon a balance of probabilities. In determining the finding issue, I have considered the history of this matter, the circumstances surrounding the apprehensions, the section 54 report, the mother's unyielding refusal to co-operate, the child K.T.1's plight, the mother's evidence and what is in the best interests of the children. In considering all of the evidence, I am satisfied that, at the time that K.T.1 and E.G.J. were apprehended, there existed a risk of physical harm or emotional harm or both within the home. There was no opportunity for the agency to help or lend assistance. The agency proceeded in accordance with its mandate to investigate. A negative inference has been drawn against the mother as a result of her refusal to participate in the section 54 assessment.
[114] For the above reasons, the agency has satisfied the required onus and a finding of in need of protection within the meaning of subclauses 37(2)(b)(ii), 37(2)(g) and 37(2)(g.1) of the Act shall be made regarding both children.
4: DISPOSITION
[115] If a finding is made in a case, the Act does not, by subsection 50(2), require a repetition of any evidence that may apply to both finding and disposition that has already been adduced. Such evidence is already before the Court. A bifurcated proceeding is still only one proceeding. Subsection 50(2) does not purport to exclude any evidence that is relevant to disposition, it merely provides for an order of precedence of presentation of evidence in a child protection case.
[116] Further to a finding in need of protection, the court is mandated to make an order that is in the best interest of the children in accordance with section 57 or, in the alternative, section 57.1 of the Act.
[117] Section 57.1 came into force on November 30, 2006 and permits the court to make a custody order under Part III granting custody of a child (or children) to a person other than a foster parent. Subsection 59(1.1) provides that, if a custody order is made removing a child from the person who had charge of the child immediately before intervention, the court shall make an order for access by that person unless the court is satisfied that continued contact will not be in the child's best interest.
[118] The test at the disposition stage of a protection application is "the best interests of the children". In arriving at the determination of what is in the best interests of the children, the court must consider the itemized criteria referred to in subsection 37(3) of the Act. Subsection 37(3) of the Act sets out a non-exhaustive list of factors to be taken into account by the court but a final determination must always be arrived at upon assessing all of the relevant facts and circumstances of the case.
[119] The agency brought a motion to amend its application to seek custody orders under section 57.1 for both children. The motion was brought on April 8, 2013 and allowed. The agency is asking for an order granting custody of the child K.T.1 to her father Mr. K.T.2 and for an order granting custody of the child E.G.J. to her father Mr. L.J..
4.1: The Child K.T.1
[120] The mother is not opposing K.T.1's remaining in the care of her father. If I understand the mother's position correctly, she would not oppose a custody order in favour of K.T.1's father Mr. K.T.2 if proceedings were brought under the Children's Law Reform Act nor would she seek terms of access.
[121] K.T.1 is clearly desirous of remaining with her father. She has had no meaningful contact with her mother since May 2011. She has maintained a refusal to communicate with her mother. She advised Dr. Fitzgerald that she may choose to have contact with her mother at some future time and she would expect to arrive at that decision on her own accord.
[122] Ms. Parisé was correct in submitting that K.T.1's views and preferences are important and relevant especially know that she is 15 years of age. Ms. Parisé supports the agency's position and agrees that any access by the mother should be made subject to K.T.1's wishes.
[123] K.T.1's father, Mr. K.T.2, provides her with a good home and solid family setting. He and K.T.1 get along well. In his interview with Dr. Fitzgerald, he described K.T.1 as a very responsible, conscientious girl who has a good relationship with him, his partner and her step-siblings. He is proud of K.T.1's accomplishments both at school and at home. He will support her at any future time that she chooses to have contact with her mother.
[124] K.T.1 enjoys a stable home and a lifestyle that is solidly family-orientated. All evidence indicates that a custody order in her father's favour would be in her best interest. It would not, at this time, be beneficial to consider an access provision within the order. Taking into account all circumstances including K.T.1's firm unwillingness to have contact with her mother (at this time), I must conclude that the making of an order for access under section 59 of the Act would not be in her best interest.
4.2: The Child E.G.J
[125] Ms. Parisé described E.G.J. as a happy child who loves both her parents. She enjoys access visits with her mother. She misses her mother and ideally would like to live with both her mother and her father.
[126] Ms. Parisé indicated that E.G.J. vacillates between wanting to live with one parent or the other and by all indications, clearly loves both. According to Ms. Parisé, the fact that E.G.J. is well-settled in her father's care and enjoys a steady, predictable lifestyle is a very significant factor at this stage of her life.
[127] According to Ms. Parisé, E.G.J. is making excellent progress in her father's care. Her father benefits from a solid relationship with his partner and they are both committed to caring for E.G.J. on a long-term basis. Moreover E.G.J's father is supportive of E.G.J.'s having a solid and productive relationship with her mother. He envisions the mother being a positive presence in E.G.J.'s life and is prepared through a responsible access regime to accommodate that goal.
[128] According to Dr. Fitzgerald, E.G.J. is evolving nicely. She is successful at school. She has good friends. She is comfortable living with her father and her father has demonstrated dependable parenting skills. He is described as a person able to prioritize E.G.J.'s needs and family life in general.
[129] The mother is asking that E.G.J. be returned to her care. I am confident that the mother, at this stage, knows that there has been a lot of water under the bridge (so to speak) since E.G.J.'s apprehension. E.G.J. is enjoying stability and an excellent lifestyle. Her continuing progress is paramount. There is no reason to displace her at this time. To her credit the mother has maintained a presence in E.G.J.'s life and, by all indications, E.G.J. is anxious for them to be able to spend more time together.
[130] The agency is not confident, given the history of this matter, that it would be feasible for it to monitor the mother's access on an ongoing basis. The agency, however, has full confidence in the level of care provided by E.G.J.'s father and is prepared to defer to his judgment, if he is made a custodial parent, on the issue of the mother's access.
[131] In making his own submissions, the father directly apologized to the mother for any missteps on his part in the past. His vision is to make every effort to get along with the mother as an access parent. He highlighted how well E.G.J. was doing overall. He stated that she was "thriving" and it would not be prudent to remove her from his care. The mother is devoted to nurturing her relationship with E.G.J.. By all accounts there has been favourable progress. Although concerns were expressed by Dr. Fitzgerald, I am satisfied that there is no reason at this time to limit the mother's access beyond the parameters of the order (to follow) or as may be mutually agreed to by the mother and the father.
[132] In the court's view, the evidence strongly supports a custodial order in the father's favour with access to the mother. The undercurrent of this entire exercise is to achieve a solution consistent with the child's best interest. Accordingly, there shall be a custody order in favour of E.G.J.'s father, Mr. L.J..
[133] The mother and father are reminded that healthy child adjustment requires parental co-operation, mutual respect and the absence of inter-parental conflict. If the mother and father cannot remain amicable, then it would be preferable for them to remain disengaged and ask for the assistance of a reliable third party. Of utmost importance is to protect E.G.J. from exposure to any parental conflict.
[134] To provide specific terms of access to cover all of life's contingencies would be a difficult task. In these circumstances, it has been my preference to inject some flexibility with the expectation that the parents shall do their very best to follow the terms and spirit of the order.
[135] I shall in these reasons provide specific terms of access that may be reasonably modified by the mother and father on consent and in writing.
5: DECISION
[136] For the above reasons an order shall go as follows:
1. In accordance with section 57.1 of the Child and Family Services Act, the father, Mr. K.T.2, shall have sole custody of the child, K.T.1, born on […], 1998;
2. Access to the child, K.T.1, to the mother, Ms. C.G., shall be at the discretion of the father, Mr. K.T.2, and in accordance with the child's wishes;
3. In accordance with section 57.1 of the Child and Family Services Act, the father, Mr. L.J., shall have sole custody of the child, E.G.J., born on […], 2005;
4. The mother, Ms. C.G., shall have access as follows:
(a) Alternate weekends from Friday at 5:00 p.m. to Sunday at 7:30 p.m. commencing Friday, December 5, 2014. This access on weekends shall be extended to include statutory holidays if applicable. Further, any time the child is not in school, the mother's access shall extend to include the Monday until 7:30 p.m.;
(b) Christmas access: in odd-numbered years from 5:00 p.m. on December 24 to 3:00 p.m. on December 25; in even-numbered years from 3:00 p.m. on December 25 to 5:00 p.m. on December 26. Other days during the Christmas holidays to be shared equally;
(c) The child to spend Mother's Day with her mother;
(d) Alternate March breaks (or March breaks can be divided each year if agreed to by the parents);
(e) Alternate Easter breaks (or Easter breaks can be divided each year if agreed to by the parents);
(f) The child to spend some time with each parent on the child's birthday;
(g) The mother shall be entitled to summer access for the first two weeks of July and the first two weeks of August, each year;
(h) The mother and father may agree to vary the access times, days and particulars herein provided such changes are in writing and signed by both.
5. The mother shall provide the father with reasonable notice if access times cannot be followed due to unforeseen circumstances;
6. The mother shall not smoke in her residence or in any residence occupied by her during access with the child;
7. The mother may have reasonable telephone access once per day limited to three times per week for a reasonable amount of time and during reasonable times. In the absence of the mother and father agreeing to a reasonable time, such telephone calls may take place prior to the child's scheduled bedtime;
8. The father shall provide the mother with timely disclosure in regards to all matters relating to the child's education and health;
9. The father shall have reasonable telephone access during times when the child is with the mother on access visits;
10. Prior to any overnight access visits commencing, the father may, at his discretion, inspect or satisfy himself as to the adequacy of the mother's home or residence or the home or residence where the child shall be staying with her during access times;
11. Any change or proposed change regarding the custody of the child shall be on notice to the North Eastern Ontario Family and Children's Services.
Released: November 28, 2014
Justice Randall W. Lalande