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 45(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: September 25, 2015

Court File No.: Kenora FO-11-082-002

Between:

Kenora Rainy River Districts Child and Family Services, Applicant

— AND —

L.S., J.M., Respondents

Before: Justice Sarah Cleghorn

Heard on: February 26, 27; March 9, 12, 13; April 28, 29; May 1; July 13, 2015

All written submissions filed by: August 21, 2015

Reasons for Judgment released on: September 25, 2015

Counsel

• David Elliott — counsel for the applicant society
• Mark Mymko — counsel for the respondent J.M.
• Kylee Ronning — counsel for the respondent L.S.
• Peter Kirby — counsel for the Office of the Children's Lawyer, legal representative for the children

Judgment

Cleghorn J.:

Overview

[1] This matter proceeded forward at a Status Review hearing (from Order dated February 12, 2014) concerning the two children, B.M. born […], 2002 and D.M. born […], 2005. At the time of the trial the children were Society Wards and were exercising supervised access with both of the parents.

[2] Prior to the conclusion of the trial, tragically, the mother, L.S. passed away unexpectedly. The father, J.M., from the onset has consented to the relief that is sought by the Society (an Order of Crown Wardship) with a request for access. The Society is not opposing the access to the father. His position has not changed with the passing of the mother.

[3] The sole remaining issue is the legislative requirement under Section 57(4) of the Act. I must decide whether it is possible for the children to be placed with extended family members. In this matter the mother was supporting the maternal grandparents alternate plan that the children be placed in their care. There were no other extended family members or community members put forward for my consideration.

[4] Counsel provided written submissions on this issue. It is important to note that I have based my decision solely on the evidence that was properly tendered at trial and not any further evidentiary material that was submitted by the Society and Office of the Children's Lawyer counsel since the last hearing date.

[5] I made an endorsement that the grandparents were to file affidavits in advance of the continuation dates for December of 2015. That endorsement was complied with and an affidavit of the maternal grandmother sworn May 14, 2015 was filed with the Court. I have reviewed that evidence.

[6] The parents signed a Statement of Agreed Facts dated February 28, 2013 placing both of the children in the care of the Society for a period of 6 months. Protection findings were made pursuant to section 37(2)(f.1)(g). The parents acknowledged the following (summary of the document):

• D.M. had witnessed physical violence between the parents in October of 2011;
• B.M. had disclosed being present for verbal arguments between his parents and he did not feel safe in the home;
• In October of 2011 a school official at the children's school reported that the mother had reacted in anger on more than one occasion, D.M. had been physically ill when he was aware that his mother was to be collecting him from school, B.M. was displaying aggression at school and had been physical with other students. As a result he had to be separated from other students;
• B.M. had disclosed that he is scared when his mother reacts in anger;
• B.M. disclosed that D.M. had made inappropriate sexual comments to him;
• School had ongoing concerns with D.M.'s hygiene;
• The children's mental health therapist was struggling to provide services to the children, as there was no follow through in the parents' homes. The therapist had been assisting the children for 20 weeks and could not report a change in their behaviours;
• Conflict had arisen at the maternal grandparents home where the police have attended and B.M. was present;
• B.M. disclosed that the father was drinking alcoholic beverages in the morning;
• The children were accessing pornography on the computer while in the father's care.

[7] At the time the document was signed the parents were separated.

[8] The children were initially placed in the care of the father in November of 2011 with access to the mother to be arranged by the Society.

[9] In March of 2012 it was agreed by all parties (Society and the parents) to have the children move between the two homes on a week about schedule. The Society had continued to receive referrals concerning a lack of supervision at the father's home resulting in the children accessing pornographic material on the computer and playing inappropriate video games (issues that had been discussed with the father by a Society worker on more than one occasion).

[10] Protection concerns were not eliminated and the children were apprehended on August 7, 2012.

[11] The parents entered into a second Statement of Agreed Facts dated February 12, 2014. A summary of the document included the following concerns:

• On-going issues with the father's drinking as a coping strategy;
• Domestic violence issues with the mother and her partner at the time;
• The mother's mental health issues;
• The school psychologist had concerns surrounding D.M.'s sexualized behavior;
• Dr. Stambrook reported that, "The children are not cured, are not healthy, and may have chronic needs.";
• The father was soliciting sex from unknown females in the community;
• The mother was not attending for counseling as directed;
• B.M. had made comments of self-harm.

[12] An order placing the children in the care of the Society as Crown Wards for a period of 6 months was made.

Understanding the Needs of the Children

[13] At the request of the Society, Dr. Stambrook completed a Parent Capacity Assessment on both parents. An updated assessment was filed during the proceedings and is dated November 28, 2014. I will not address in details the contents of the assessments as they related to the parents and not the maternal grandparents. In order to fully understand the vulnerabilities of the children I will provide an overview of Dr. Stambrook's expert opinion provided at the trial and was based in part on his reports.

[14] Dr. Stambrook testified at the trial. On consent and subject to my approval, he was qualified as an expert to give opinion evidence in the area of child and adult psychological functioning, parenting capacity assessment, child and adult psychological abnormalities.

[15] Dr. Stambrook first became involved in 2009. His concerns included the children's maladjustments at the school, what he described as an "extreme level" of concern about their functioning, that the child D.M. was shutting down and was displaying sexualized behaviours, that the child B.M. was very aggressive and dangerous to other children. Dr. Stambrook recommended that the Society consider a therapeutic placement for the children. As a result the children were placed in therapeutic foster homes in August of 2012. A therapeutic foster home has a treatment team including a therapist assigned to a child. A specialized foster home provides additional training to foster parents who care for children with high needs.

[16] The children were described as "damaged" with high needs requiring structure and stability in order for them to stabilize.

[17] D.M. was described as doing well in his current placement and had formed attachments to his foster family. Despite the fact that D.M. has made some gains, Dr. Stambrook described D.M. as a "disabled" child who will remain so given his cognitive development and his underlying trauma. D.M. has been diagnosed with ADHD, is reactive and has attachment issues as a result of his childhood experiences. It is the opinion of Dr. Stambrook that D.M. is the more damaged of the two children and still requires a high level of care in a two-parent home.

[18] Both children were described as suffering from developmental trauma that occurred during vulnerable times (pre-school years) in their lives. B.M. is now able to express the trauma he suffered while D.M. is felt to be acting out in his behaviour. B.M. is now at a point where he is dealing with his trauma through therapy. Dr. Stambrook testified that D.M. must still stabilize and will likely test the limits in therapy, however he should remain in therapy even if D.M. views it as not helpful to him.

[19] The home environment of the mother was detailed as exposing the children to neglect and a high level of intense hostility. At the father's home the children were exposed to pornographic material, the father's alcohol use and domestic violence between the parents (when the parents were required to interact with one another). The children are described as having been "terrified" in the home when the parents were still residing with one another.

[20] As a result, the recommendation was made for the children to enter into therapeutic foster homes. At the time of trial D.M. remains in a therapeutic foster home. B.M. has progressed to a specialized foster home.

Current Placement of the Children

a) The Child D.M.

[21] D.M. is placed in a foster home for children with high needs and continues to reside in the same home he was initially placed.

[22] C.L. (foster placement) testified that she and her husband have been providing foster care for high needs children for the past 14 years. Upon arrival to their home, D.M. was displaying sexualized behaviour, there were ongoing issues with the school (she reports that at the start of the placement the school contacted her almost daily) and D.M. was wetting the bed. All of these issues have now decreased substantially and C.L. has no major concerns with the behaviours of D.M.. C.L. and her husband are committed to a long-term placement for D.M. and depending on my decision adoption is something they will take into consideration.

[23] The current treatment plan for D.M. includes continuing with the foster parents having what is described by the Society worker as "a lot of hands on" work, therapy once a week and continued support through the school and the therapist assigned to the team.

[24] C.L. has supported access visits including facilitating sibling visits.

b) The Child B.M.

[25] B.M. was initially placed in a therapeutic foster home and remained in the first home for a period of 2 years. As B.M. stabilized he no longer required a treatment home and he was moved on July 4, 2014 to a specialized foster home and remains in this placement at the time of the trial date. J.S. (foster mother) described B.M. as initially displaying anxiety, that he made threats of self-harm, he had poor self-esteem, was nail biting and required reassurance from her that he was not in trouble on a consistent basis. B.M. has stabilized in his current foster home but still has anxiety and low self-esteem. J.S. testified that B.M. requires stability, routine, structure and a non-reactive calm approach on most issues.

[26] J.S. has experienced some difficulties with the maternal grandparents. For example, J.S. overheard the grandmother telling B.M. what he should be telling his lawyer. On one occasion conflict occurred between the father and the grandfather at the skating rink where B.M. was put in the middle of the conflict. The grandparents routinely drive past her home hoping to find B.M. playing outside. On one occasion she has heard the grandparents demean the father in the presence of B.M. The grandfather has made racist comments in the presence of B.M.

[27] The current treatment plan for B.M. includes what is described by the Society worker as "hands on" work by the foster parent and bi-weekly counseling.

[28] J.S. is committed to providing a long term home to B.M.

Grandparent's Plan

[29] The grandmother has set out in her affidavit her views on how the mother parented the children and the ongoing support that both the grandmother and grandfather were prepared to offer to the mother and the children. The grandmother was supportive of the mother's request to have the children returned to her primary care.

[30] The issues that have been raised by the Society were responded too and essentially denied.

[31] The grandmother detailed how access had occurred with the children, how it was positive and expressed her love and support for the children.

[32] The grandmother stated that her home was available as a placement option. It was her view that the children are better to be placed in the grandparent's home than have the children placed in foster care as only family can provide a certain type of love and affection. She felt that both herself and her husband were able to meet all the needs of the children and work co-operatively with the Society and service providers.

[33] The Society has arranged for access to the children while they have been in care based on the grandparent's schedule and the needs of the children.

[34] A number of issues have arisen that the Society has had to address with the grandparents. A summary of examples include the following:

• The grandparents discuss the litigation process with the children and direct them on what to tell their lawyer (for example the grandmother has told the children that "even people in jail get phone calls" in relation to both her and the mother's ability to contact the children);
• An issue arose where one of the children was sleeping in the same bed as the grandparents. When the Society attempted to address it the grandparents' response was that it should be the child's decision to make;
• The grandfather has had an argument with the father in the presence of one of the children;
• On one visit the child returned with a mistaken belief that no one wanted him in Kenora (this impression being imposed on the child during a visit with the grandparents);
• The grandfather will make racist comments in the presence of the children;
• The grandparents have had heated discussions with the Society worker expressing their level of dissatisfaction with the Society in the presence of B.M.;
• The grandparents and the mother would argue with one another in the presence of the children;
• The grandfather told a Society worker that he hopes that he causes anxiety with the child B.M.

[35] In the Statement of Agreed Facts dated February 28, 2013 the mother acknowledged in paragraph 43, "At the outcome of this investigation it was verified that the children are experiencing emotional harm due to the conflict between the adults in the home. Ms. S. acknowledged that there is conflict between herself and her parents to the point that B.M. gets scared and leaves the room."

[36] Dr. Stambrook was provided an email sent by the maternal grandmother to the Society. It was his opinion that the grandmother clearly felt hurt and upset with the Society and was taking the side of the mother. He further testified that the grandmother's response can be viewed as, "She does not appreciate the well-being of the children. She is an angry, emotional and angst (sic) women who is blaming the Society and the worker, and has a high level of hostility."

[37] The grandparents have discussed with B.M. what they felt was inadequate contact with the family. Dr. Stambrook testified that the grandparents should not be addressing access issues directly with B.M. as it may make him upset and leave him with the impression that he is being deprived of access.

[38] Society worker, Pamela Siemens, testified that the grandparents were vetted by the Society as a potential placement from the onset. At the time of apprehension the children required therapeutic foster homes as recommended by Dr. Stambrook. This was a critical consideration of the Society; finding a home that best met the specific needs of the children.

[39] The grandparents were invited to attend a counseling meeting for B.M. as he was experiencing a high level of anxiety. The purpose was to have the parents and the grandparents understand where B.M. was at, from a therapeutic approach. The grandmother was ill and not able to attend, following which the grandparents left on their annual 3-month vacation.

[40] The Society was concerned how the grandparents viewed the father in such a negative light and expressed their views of the father directly to the children. Ms. Siemens testified that she would have concerns on the impact this may have on the relationship with the father if the children were in the care of the grandparents.

[41] The grandparents questioned why the children required therapeutic foster placements.

[42] The grandparents have not been able to work co-operatively with the Society. Both have displayed aggressive and hostile behaviour towards the workers.

Decision

[43] The law requires that I must determine if an extended family member or community member is available for placement of the children prior to making an order for Crown Wardship pursuant to s. 51(3.1) of the Act.

[44] I have no doubt that the grandparents have deep love and affection for the children and that the children are bonded as well. Both of the children are extremely vulnerable and fragile as a result of the high level of trauma that they experienced at the hands of their parents. It is Dr. Stambrook's opinion that the children require very specific care in order to meet their ongoing needs. The sheer damage occasioned on the children is evident upon full review of Dr. Stambrook's parenting assessment reports and upon hearing his evidence at trial. D.M. remains in a therapeutic home as of the present day and although B.M. has made some gains he still requires specialized care in his foster home.

[45] The grandparents are not equipped with the necessary skills that are required for the children's stability and to address their high needs. Based on the evidence that I have heard from the Society and Dr. Stambrook, the grandparents are not fully able to appreciate how damaged the children are nor have they accepted what has been put in place for the children to receive the treatment they so desperately need. It is concerning that the grandparents have involved the children in the ligation process by trying to coach them on what they should be telling their lawyer. It is concerning that the grandparents view the father in such a negative light and freely express their views to the children. The father and the children will have an on-going access relationship and the children must be able to foster and develop this relationship in a positive fashion. Although the grandparents deny these allegations I prefer the evidence of Dr. Stambrook, the Society worker and the foster parent over that of the grandmother.

[46] The children are extremely vulnerable and have been under specific treatment plans for a substantial period of time, yet both remain in a high vulnerable state. Their on-going needs for their mental health and to deal with the severe trauma of their childhood requires that they live in a stable, structured, home environment with individuals who have specific training and will work co-operatively with the Society and service providers. The grandparents are not able to provide the home environment needed for the children. I cannot find that placing the children in the home of the grandparents would be in their best interest.

[47] All parties have acknowledged that ongoing access for the children with the father, the grandparents and one another is in their best interest. If these relationships can be fostered through access without impacting the children's mental health then it should be facilitated. The evidence has clearly established that access for the children with the father, the grandparents and each other is both meaningful and beneficial to them. Further, Dr. Stambrook gave evidence of the importance of continuing the access given the ages of the children and the connections they have made.

[48] For these reasons a final order shall issue making the children, D.M. and B.M. Crown Wards of Kenora Rainy River Districts Child and Family Services, with rights of access to the father, maternal grandparents and sibling access. The access shall be arranged by and be at the discretion of the Society including the Society having discretion with terms and conditions that are appropriate.

[49] This matter was complex, high conflict and fraught with emotions. All counsel involved provided a high level of advocacy displaying compassion and empathy for not only their respective clients but for other parties involved expressing genuine concern for the children. For this, all counsel involved are to be commended.

[50] I wish to express my sincere condolences to the family of the mother for her untimely passing.

Released: September 25, 2015

Signed: Justice Sarah Cleghorn