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, R.S.O. 1990, c. C-11, as amended, and is subject to 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 on publication of identifying information
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) 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) Offence
A person who contravenes subsection 45(8) (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
Sudbury Registry No.: C45-12
Date: 2015-11-12
Ontario Court of Justice
Between:
Children's Aid Society of the Districts of Sudbury and Manitoulin, Applicant,
— And —
M.R., P.R. and R.A.L. Respondents.
Before: Justice Randall W. Lalande
Heard on: 25 and 28 May 2015 and September 25, 2015
Reasons for Judgment released on: 12 November 2015
Counsel
Patricia G. Marcuccio — counsel for the applicant society
Darren Berlinguette — counsel for the respondent mother, P.R.
M.R. (respondent father of A.R. and B.R.) — on his own behalf
R.A.L. (respondent father of M.L.) — on his own behalf
JUSTICE R.W. LALANDE:
1: INTRODUCTION
[1] P.R. (age 42) born on […]1973 (the "mother") and M.R. (age 46) born on […]1968 (the "father"), are the biological parents of A.R. (age 12) born on […]2002 and B.R. (age 10) born on […]2005.
[2] P.R. and R.A.L. (age 48) born on […] 1967 (the "father of M.L.") are the biological parents of M.L. (age 3) born on […]2012.
[3] The trial of this matter proceeded on the issue of disposition only. Both M.R. and R.L. were earlier noted in default. M.R. was present at the trial and was called by the mother as a witness.
[4] The child M.L. has been in care for more than 800 days which, in accordance with section 70 of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended, limits the court's available options on disposition.
[5] The relief sought by the society for the children, A.R. and B.R., is as set out in its amended protection application dated 20 February 2015:
Pursuant to Section 57.1(1) of the Child and Family Services Act, the respondent father M.R. shall be granted sole custody of the children A.R. born […], 2002 and B.R. born […], 2005.
Access by the respondent mother P.R. shall be as agreed upon between the parties, supervised by M.R. or his designate at M.R.R.' discretion.
There shall be no access whatsoever, direct or indirect, by R.A.L. to the children B.R. and A.R.
Any application or motion to vary the provisions regarding the custody or access provisions of this order shall be served upon the Children's Aid Society of the Districts of Sudbury and Manitoulin or the agency in which the children are residing, which agency may at its discretion become a party to the proceedings.
[6] The society is seeking that the child M.L. be made ward of the Crown.
[7] Initially, relief sought by the mother was that all children be returned to her care. At trial, the mother indicated that she would support a joint custody order of all three children in favour of herself and the father with the father designated as the primary caregiver.
[8] The father does not disagree with the position taken by the society nor does he disagree with the position taken by the mother — namely, that the court grant a joint custody order of all three children in favour of himself and the mother with himself designated as the primary caregiver.
[9] The society is opposed to any joint custody order.
2: COURT HISTORY
[10] The mother and father separated in 2009. After the separation, the mother acted as the primary caregiver of the two children, A.R. (then approximately 6 years old) and B.R. (then approximately 4 years old). The father had generous access.
[11] After separating from the father, the mother entered into a relationship with R.L.. She became pregnant. During the currency of her relationship with R.L. and partially during her pregnancy, he (R.L.) came under a dated investigation for having sexually abused and assaulted two young girls who at the time were approximately 10 years old. He was charged with several serious sexual related offences.
[12] The society has identified Mr. R.A.L. as a person having a serious criminal record, a history of drug abuse and a history of failed relationships. Additionally, in the society's view, there exist undeniable hallmarks of R.L.'s being a child sex abuser. Notwithstanding that he was not criminally found guilty, the society deems him to be a serious risk to children.
[13] On 6 February 2012, Justice Richard A. Humphrey granted an interim "without prejudice" order placing the children, A.R. and B.R. in the care of P.R., subject to supervision, with no access to R.L.
[14] M.L. was born on […] 2012. A further order followed on 13 July 2012 where Justice Malcolm G. McLeod ordered that M.L. be placed in the care of P.R. (the mother) subject to supervision with specified and supervised access to R.L.
[15] During the months that followed, the mother played a cat and mouse game over her relationship with R.L.. All three children were apprehended on 23 August 2012 from the mother with police assistance after she was seen by worker Sylvie Courchesne walking with Mr. R.A.L. while pushing baby M.L. in a stroller. This apprehension led to two orders granted by Justice John D. Keast on 29 August 2012. Both orders were made on an interim "without prejudice" basis. The first placed the children A.R. and B.R. with their father subject to numerous terms and conditions including that the father not allow R.L. any access whatsoever, direct or indirect. The second order placed the child M.L. in the interim care of Reverend G.R. with a stipulation that any access by the mother or R.L. was to be agreed upon by the parties and supervised by the society.
[16] On 2 October 2012, Justice Humphrey granted an interim "without prejudice" order placing the child M.L. in the care of the society. Access by P.R. and R.L. to remain as agreed upon between the parties and supervised by the society.
[17] On 5 October 2012, Justice Humphrey made a finding on consent that the children A.R., B.R. and M.L. were children in need of protection.
[18] On 5 October 2012, Justice Humphrey granted a final order on consent placing the children A.R. and B.R. in the care of M.R. for a period of six (6) months subject to supervision and the child M.L. in the care of the society for a period of six (6) months. Access by P.R. to all three children A.R., B.R. and M.L. was to be supervised by the society. Access by R.L. to M.L. was to be supervised by the society and R.L. was to have no access to A.R. and B.R.
[19] According to the mother, she and R.L. only lived together until the end of September 2013. A status review application was heard on 22 January 2014. Justice Keast granted a final order on consent placing the children, A.R., B.R. and M.L. in the care of P.R. subject to a twelve (12) month supervision order. R.L. was to have no access to A.R. and B.R.. Access to M.L. by R.L. was to be as arranged with the society at the Supervised Access Centre. In the alternative, access to be supervised by a responsible adult approved and jointly agreed to by the society and R.L.. The children were also found to be in continued need of protection.
[20] Regrettably over the next several months, the mother demonstrated an unwillingness to comply with the order of 22 January 2014. In a secretly contrived plan, the mother followed Mr. R.A.L. to Sault Ste. Marie. She left the two older children (A.R. and B.R.) with their father. She brought M.L. with her to Sault Ste. Marie knowing that R.L. had already moved there and anticipating that he would have access to her. The plan was discovered by the society and the children were again apprehended.
[21] The children were apprehended on 3 July 2014. This led to two orders made by Justice Keast on 8 July 2014 as follows:
On 8 July 2014, Justice Keast granted an interim "without prejudice" order placing the child M.L. in the care of the society. Access by P.R. and R.L. to be as agreed between the parties and supervised by the society.
On 8 July 2014, Justice Keast granted an interim "without prejudice" order placing the children A.R. and B.R. in the care of M.R. subject to supervision. Access by P.R. to be agreed upon and supervised by the society at its discretion. There was no access in favour R.L.
[22] The mother moved back to Sudbury from Sault Ste. Marie. She had no place to live. The father allowed her to stay in his home with himself and the two children (A.R. and B.R.). The mother and father currently maintain that, although living under the same roof, they are not in a relationship. The father acknowledges that the mother contributes to the home. She helps with caring for the children and maintaining the household.
[23] M.L. has remained in foster care since 3 July 2014. The mother has been diligent in exercising regular access. The access takes place twice per week for three hours. The access is described as both open and closed. With full disclosure of her whereabouts, the mother is able to leave the society's facility with the child.
3: OVERVIEW
[24] According to the evidence of Monique Roumanes (child protection worker), the mother, as a child, had an extensive history with child protection agencies starting in 1975. Essentially, she suffered a traumatic childhood and was made a Crown ward in 1983. She was placed and remained in the foster home of Reverend G.R. in December 1983.
[25] After attaining the age of 18, the mother remained involved with the society under an extended care agreement. She continued to live with Reverend G.R.. She was discharged from care on 31 July 1993 at age 20 when she was no longer involved in any academic program and had moved in with her boyfriend.
[26] The society first became involved with the mother and father (M.R.) as a couple in approximately 2008. They became separated in the year 2009. After the separation, the children primarily lived with the mother. The father exercised generous access.
[27] The mother entered into a relationship with R.L. and became pregnant. M.L. was born on […] 2012 and is now 3 years old. Mr. R.A.L. was in a previous relationship with M.L.. From that relationship, he is the biological father of L.L., born on […] 2009. L.L. was apprehended by the society on […] 2010 at age 9 months. Following a trial that began in June 2012, L.L. was made a Crown ward and subsequently became adopted.
[28] According to the affidavit evidence of Ms. Roumanes, R.L. had a very neglectful and turbulent childhood. He was abandoned by his mother in New Brunswick. He lived with his father and stepmother. They struggled with his bad behaviour and criminal activity, which resulted in his being in care as a Crown ward for approximately two years as a teenager. He disclosed to the society that he had been sexually abused as a child.
[29] In 2002, R.L. was the subject of an extensive investigation involving allegations of sexual abuse and assault of two young girls (each approximately aged 10 years). Details of the allegations are outlined in the affidavit evidence of Ms. Roumanes. The incidents, which were investigated, allegedly occurred in the years 2000 and 2002. He was charged with sexual exploitation, invitation to sexual touching, sexual interference and sexual assault. The evidence is not clear whether he was discharged at his preliminary inquiry on 19 June 2003 or whether the charges were withdrawn.
[30] The society has highlighted that R.L. has admitted using various hard drugs since the age of 8 years old including crack and heroine and has struggled with substance abuse issues for numerous years. He has an extensive criminal record, which includes convictions for possession of drugs and possession for the purpose of trafficking.
[31] Justice Humphrey presided over the protection hearing that led to the child L.L.'s (R.L.'s daughter) being made a Crown ward. In his decision released on 21 June 2012, Justice Humphrey made a number of findings that, although certainly not determinative in these proceedings, remain relevant. They include the following:
The parents (R.L. and M.L.) would often use drugs after L.L. had gone to bed. They would stay up all night smoking crack. Mr. R.A.L. would consume the drugs and then stay with L.L. and care for her while he was coming off their effect.
His past drug use included cocaine, heroin and speed. He has been an intravenous drug user and contracted hepatitis C.
R.L. indicated that he knew that his use of drugs and alcohol in the company of the mother would be hurtful to the child.
R.L.'s plan was to unite with his girlfriend, P.R. and her two daughters and have the assistance of Ms. P.R. in raising L.L.
The evidence established that R.L. and P.R. had no appreciation for L.L.'s emotional circumstances, much less any concrete plan in place to deal with them.
The court recognizes that Mr. R.A.L. has made significant progress in attempting to overcome his addiction issues and should be commended for having done so, but the fact remains that his life has been one of turmoil on all fronts.
Due to the finding that the child is in need of protection made in this proceeding, there is a high likelihood that the society will intervene in the life of Mr. R.A.L. and Ms. P.R. should they cohabit, due to the allegations of sexual impropriety on his part.
P.R. was adamant in her assertion that the society has been unfair to both herself and to Mr. R.A.L.. "There was in their evidence, a tone of animosity directed towards the society which would give cause for concern to this court that they might not co-operate to the extent necessary to make a supervision order a success."
[32] The society has steadfastly maintained that the mother's relationship with R.L. has posed (and poses) risk to the children. According to the society, the mother has refused to protect the children. On consent and on 5 October 2012, all three children were found to be in need of protection due to the risk of sexual harm posed by R.L.. The society maintains that the mother has demonstrated an ongoing inability to recognize this risk posed to the children. Additionally, she has demonstrated an unwillingness to comply with court orders.
[33] It is to be noted that R.L. underwent a psychological assessment and a report dated 9 January 2012 was prepared by Dr. Larivière. He was assessed as being low-moderate risk for criminal behaviour. It was recommended that he undergo cognitive and behavioural based therapy with a focus on sexual offence prevention, substance abuse relapse and conflict resolution.
[34] In February 2012, the society brought an application for an order of supervision placing the children in the care of the mother with terms and conditions. A temporary order was granted on 6 February 2012, which included a condition that the mother not allow R.L. to have any access whatsoever direct or indirect to the children, A.R. and B.R.
[35] The society alleges that following that order, there were numerous reliable reports that R.L. found himself in the presence of the children. Ms. Roumanes' affidavit cites instances where R.L. was in the presence of the children. It strongly appears on the evidence that efforts were indeed made by the mother and Mr. R.A.L. to circumvent the order. The children were apprehended on 23 August 2012.
4: ANALYSIS
4.1: The Mother
[36] There were a number of issues raised in the evidence that negatively impacted the mother's credibility including, for example, the following:
Facebook Communications
In cross-examination, the mother was questioned about ongoing contact with R.L. on Facebook. At one point, she said that she had not communicated with R.L. since 15 March except on Facebook. When ask why she had not deleted R.L. from her Facebook contacts, she stated, "It doesn't matter because I do not communicate with him".
I found her answer ambivalent. At first, she said she did not communicate with him. Then she said she did. She sounded like a person who was playing loose with the truth.
October 2011 Meeting
In her affidavit, Ms. Roumanes highlighted a meeting between society worker Melissa Montpellier and the mother on 19 October 2011 at which time the mother was noted to have been aware that R.L. could not be left alone with the children A.R. and B.R. or be left in a caregiving role. The mother denied the existence of the meeting or the conversation. The mother simply stated that to her knowledge, Ms. Montpellier had only left a card in the door of her residence.
This bald denial when measured against the recorded details of the meeting lacks credibility.
November 2011 Conversation
According to Mr. Lyons, the mother had earlier told him that Mr. R.A.L. only attended at her residence on Tuesdays or Wednesdays when the children were not there. This according to Mr. Lyons was told to him on 23 November 2011. In response, the mother stated that a conversation had taken place between herself and Mr. Lyons but she did not recall saying the above. She stated that she only recalled that Mr. Lyons attended with police on 12 December 2011. Later in her testimony, she said that "the conversation did not happen".
Again, this type of bald denial represents an answer of convenience resorted to by the mother in order to avoid detection of her relationship with Mr. R.A.L.
Allegations of Abuse
The father (M.R.) testified that he and the mother had a relatively untroubled life together prior to their separation in 2009. He denied any physical abuse toward her. The mother, however, when questioned at the Women in Crisis (Algoma) Centre on 26 June 2014 gave a different account. The worker at the Crisis Centre noted the following: "…that she then decided to move in with her ex-husband who was abusive in the past. Shared that he continued to be verbally and physically abusive to her and she decided to flee to the Soo to start fresh."
Confronted with these comments and other evidence, the father did mellow his response by saying that maybe they fought. He denied, however, that there was anything physical.
The issue bearing on credibility here is that the mother gave a false reason for attending at Sault Ste. Marie (as will be discussed later in these reasons). She blamed it on the father's abuse. This, however, was not what motivated her to go to Sault Ste. Marie. She was untruthful. Moreover, given her past and more current relationship with the father, his version of their history as a couple is more believable.
Sault Ste. Marie Move
After taking M.L. to Sault Ste. Marie, the mother left her with R.L.'s new partner, J.M.. In her evidence, she stated "I guess I brought M.L. knowing he'd see her."
The mother's explanation was a guarded response in circumstances where she knew full well that R.L. would have unfettered access to M.L. once M.L. was left in the care of J.M.
Knowledge of R.L.'s Location
At one point in cross-examination, the mother said that, when she attended at Sault Ste. Marie with M.L., she had no idea that R.L. was living with J.M.. She said she thought this because she had been told he had been living with his sponsor.
On this point, the mother completely contradicted the evidence of Jenna MacGillivary (a child protection worker with the society in Algoma) who unequivocally stated that the mother told her that she was aware that the child was staying with J.M. and was aware that M.L.'s father was actually caring for her.
[37] In broad terms, the mother vacillated on a number of issues when pressed in cross-examination. She resorted to answers indicating that she either did not recall or that conversations shedding a bad light on her simply did not occur. Quite telling is her lack of honesty in disclosing to the worker at the Crisis Centre in Sault Ste. Marie the real reason for which she found herself at the shelter. In large part, the mother remained prone to providing answers of convenience without regard to the truth.
[38] On 22 January 2014 (12.5 months later), all three children were returned to the mother's care under a 12-month supervision order in accordance with a further order made by Justice Keast. The order contained numerous terms and conditions. The order presumed the father's full involvement with the children but clearly stipulated that R.L. was not to have any access whatsoever direct or indirect to all three children. This was with the exception that access to the child M.L. only be allowed as arranged by the society at the Supervised Access Centre or supervised by the society or a responsible adult jointly agreed to by the society and R.L.
[39] The evidence of Ms. Roumanes indicates that, between January 2014 and May 2014, on several occasions, the society received third-hand information that triggered a suspicion that the mother and R.L. were together with the child M.L. in contravention of Justice Keast's order of 22 January 2014.
[40] On 20 March 2014, the mother asked whether she could supervise R.L.'s access. She was specifically reminded that she could not. There is no doubt by this stage that the mother knew she could not supervise R.L.'s access. Nonetheless, she continued to press the fence, so to speak.
[41] It appears that the mother became frustrated in trying to care for the children and at the same time keep R.L. away. On 11 April 2014, she advised the society that she would be moving out of town (or at least intended to do so). Curiously a little bit earlier on the same day, R.L. told society worker Paula Withrow that he would be moving away the following month.
[42] Equipped with the knowledge that both R.L. and the mother had individually stated that they were or may be moving away (as well as other information received), the society proactively sent letters dated 17 April 2014 and 23 May 2014 to each reminding them of the provisions of Justice Keast's order of 22 January 2014.
[43] R.L. did move to Sault Ste. Marie. He took up residence with a new partner — namely, J.M.
[44] In her opening statement and affidavit evidence, the mother admitted going to Sault Ste. Marie knowing that R.L. was already there and allowing him access to M.L.. She advanced the following explanation:
R.L. was asking to see her and telling me he wanted to be part of her life. I felt guilty and was not sure what to do. He kept telling me, don't worry we won't get caught. He told me to go to the Women's Shelter and that, once I got an apartment, I would tell the society that I moved. I felt she should know her father.
[45] The mother clearly knew that her conduct was wrong and that she should not have gone to Sault Ste. Marie to allow R.L. to have access and that to do so was in blatant contravention of the court's order of 22 January 2014. In her subsequent failed cover-up efforts, she stated that she was afraid to admit the truth for fear of losing M.L.
[46] The mother was complicit in orchestrating a clandestine move to Sault Ste. Marie in order to facilitate Mr. R.A.L.'s access. After having provided several unbelievable explanations in her evidence, she resorted to stating "I did not do it on my own accord". Given her level of participation, this statement cannot be believed. The mother was fully involved in conduct targeted to circumvent the order of the court.
[47] The mother's lack of credibility has manifested itself as recently as 27 April 2015 where she denied having communicated with R.L. on Facebook. When confronted by Ms. Roumanes with the fact that a previous society worker saw her communicate with R.L. on Facebook, she told Ms. Roumanes she had been communicating with a different friend with the same name. This response was geared to avoid the truth.
[48] M.L. was physically apprehended at Sault Ste. Marie on 3 July 2015. The society maintains that the mother has miserably failed to identify risks posed to M.L. and has snubbed her legal obligations. In the society's estimation, the mother has from the outset had a poor understanding of its protection concerns and in the future would more than not again likely succumb to the influence of Mr. R.A.L.. The society points to the affidavit evidence of Chantalle Richardson sworn on 20 May 2015, where the mother (on 26 July 2014) is reported to have said:
The reason they [R.L. and the mother] split up was because M.L. would be returned to her.
That she [the mother] is moving to Sault Ste. Marie leaving the two girls behind . . . no one knows us there and our situation so nobody would be watching.
M.L. has support, she has her mom and dad [meaning R.L.].
[49] The approach taken by the mother is also highlighted in the evidence of society worker Paula Withrow who met with the mother on 21 October 2014. At that meeting, the mother confirmed that she did not see R.L. as a risk to M.L. and did not see the need for the society's continued involvement.
[50] The fact that the mother failed to understand or identify the reason(s) for which the society did not trust R.L. permeates throughout her evidence.
[51] The mother has circumvented or attempted to circumvent court orders and strongly appears to have been under R.L.'s heavy influence despite knowing the risk that this would have in M.L. remaining in her care. Rather than allow issues of Mr. R.A.L.'s access to unfold outside the purview of her relationship with him, she has more or less remained poised to act in concert with him in contravention of any applicable court order. In consequence, the society was obliged throughout its involvement to take a heightened watchful approach.
[52] The mother's conduct (and R.L.'s conduct) has influenced the direction of this case, which has resulted in the child M.L.'s remaining in the society's care for a total period well exceeding 800 days. In fact, as at 28 May 2015 and in accordance with the society's calculation, M.L. has been in care for 823 days.
4.2: The Father
[53] The father stated that he and the mother had been married nine years before becoming separated in 2009. He did not in his general outline speak negatively about the life that he and the mother had together. He denied any physical abuse toward her. He acknowledges that she took up a relationship with R.L. after they separated. In general terms and in reference to her current life situation he states, "she is not the same woman now."
[54] To his credit, the father has maintained steady employment. He does not own a vehicle and must rely on public transportation to attend work each day. He has resided in the same modest rented two-bedroom apartment for the past five years. He admits that the apartment is crowded especially now that the mother (who is currently not in a relationship with him) is temporarily residing there as well.
[55] After living through a tumultuous relationship with Mr. R.A.L., the mother found herself without adequate accommodations. The father agreed to allow her to reside in his apartment. He stated clearly in his affidavit evidence that they are not in a relationship. He also indicated that the mother could stay "as long as needed".
[56] It is the father's ultimate plan to seek a larger housing facility through the assistance of Sudbury Housing. In the meantime, he is willing to have M.L. move in even if all three girls had to share one bedroom for a short while.
[57] The idea of the father having the care and custody of M.L. is fairly fresh. As recently as 20 April 2015, the mother stated to Tina Myles (an access facilitator employed by the society) that she was hoping to get M.L. back and that she would be moving into her mother's home with M.L.. The idea of a custody order in favour of the father did not surface during that conversation.
[58] The mother does not now have any type of relationship with the father's family. She has not spoken to the father's mother since the separation in 2009. In her evidence, she stated that it does matter to her whether or not she has or maintains a relationship with his family.
[59] On 19 February 2015, society worker Johnathon Isabella spoke with Reverend G.R. to determine whether there were any other family members who could care for or assist with the care for M.L.. She indicated that, because the mother (P.R.) cheated on the father with R.L. and had a baby with him, the R.'R. family had turned their back on her. When confronted with this statement made by Reverend G.R., the mother denied the fact that Reverend G.R. would have said this.
[60] In his affidavit sworn on 23 April 2015, the father states, "I am requesting custody of the children as I feel that someone should have custody." Further, in his affidavit, he states "…I believe that we will be able to share and co-parent the children together".
[61] It is to be noted that, on 25 March 2015, the father advised society worker Jennifer Kay that he was hoping the mother would find someone else to care for M.L.. He indicated that it would be too much responsibility and that he is now barely able to keep up with his two girls. The father made it very clear that he is focused on continuing to care for his two daughters.
[62] On 30 April 2015, the father advised Ms. Roumanes that he was willing to present a plan for M.L.. He indicated that he was no longer working a second job with graveyard shifts and would be less tired and more able to care for all three girls. He also indicated that he was under now the impression that R.L. was no longer in the picture and that he (R.L.) would not be causing any problems. It is however to be noted that the father may not be totally convinced that R.L. is completely out of the picture. On 30 April 2015, during a discussion with Ms. Roumanes, he did indicate that he was "not surprised" if the mother was still having some form of contact with Mr. R.A.L. (i.e., on Facebook).
[63] The father did indicate that it would be of benefit for M.L. to be with her sisters. He also stated in this same discussion with Ms. Roumanes that he felt that the foster mom was doing a great job and that she was "so much better equipped" with skills and routines for M.L. and that "a judge would surely see that". In his discussion with Ms. Roumanes, the father said that he would not mind having another child in the home. It was Ms. Roumanes' feeling that, although the father stated that he could look after all three children, his body language gave the very strong impression that he was not at all certain.
[64] The father expressed satisfaction with the mother's participation in the home. He described the home routine as being "pretty hectic" and said that the mother was definitely helping out.
[65] The father has not had much of a relationship with M.L.. He admitted that he does not get to see her a lot, although he has more recently been thinking about her. He has never had access since she has been brought into care. In terms of his own parental obligations, the father stated that he relies on extended family members including his cousin and his aunt. He said he has a lot of family to help him but that he has not spoken to any of them yet about agreeing to have custody of M.L.
[66] The father does acknowledge that he is aware that, at this stage, the mother is desperate to maintain contact with M.L.. Also and notwithstanding stating that he was aware that the mother acted badly over the years, he described her as "still being a good mom".
[67] It is the father's theory that, if all three children were placed in his care and custody, the mother would have access and be able to help out in the home. He did not identify with any potential problems associated with the mother's temporarily living in the home.
[68] The following comments relevant to the mother's perspective of her relationship with the father are contained in the affidavit of Ms. Roumanes:
On 1 October 2014, P.R. left a voice mail for society worker Paula Withrow indicating that she was back in Sudbury for good and that she and M.R. were going to try and work things out with their marriage and that M.R. was going to pay for her return bus ticket to Sudbury.
On 21 October 2014, P.R. advised society worker Paula Withrow that she and M.R. were no longer trying to work on their marriage. P.R. indicated that she wanted M.L. back in her care to raise on her own.
On 27 November 2014, P.R. advised society worker Paula Withrow that she feels that she has to go back to an "unhealthy situation" with M.R. in order for M.L. to be placed with him.
[69] Of importance was the mother's thinking at that time. In canvassing her options on 27 November 2014, she contemplated returning to reside with the father as a means to have M.L. placed with him. Her vision at that time was to do so even if this meant he had to return to an "unhealthy" situation.
[70] The current plan put forth at the last minute (so to speak) has surfaced because the mother has run out of options. Although the mother loves her child (M.L.) and wishes to care for her full-time, she knows that she is not poised to do so on her own. Against this backdrop looms the question of whether the father is truly committed to care for M.L.. The following factors are most relevant:
M.R. is not M.L.'s biological father;
He has had a very limited relationship with M.L.;
He has previously expressed little or no interest in having access to M.L.;
There is no sign of any significant level attachment between the father and M.L.;
The plan to seek custody of M.L. emerged from the mother's desperation;
In an interview with Ms. Roumanes on 11 May 2015, he stated that the mother was on him "non-stop" about wanting him to take M.L. into his care. He said the mother waiting until the last hour to come up with this plan when she had three years to figure things out;
He is living in modest circumstances both in terms of housing and finances;
The relationship between him and the mother does not represent a traditional family unit. There is no indication that his relation with the mother is other than temporary;
He requires the support of his family and extended family with whom the mother has no close relationship, if any.
[71] The father made earlier comments expressing that M.L. is currently in a home that is much better equipped to look after her. In making these comments, the father grasped that the overall circumstances of M.L.'s care should be looked at more broadly and not necessarily through the lens of the mother's exigent circumstances. It is rather telling that, in his interview with Ms. Roumanes on 11 May 2015, when asked whether he really wanted to care for M.L. or was doing so under the mother's pressure, he stated "It will be up to the court".
[72] It is evident that the plan to place M.L. with the father (M.R.) was hatched as a last-minute scheme to provide a mechanism whereby she (M.L.) could remain accessible to her mother and/or in her mother's care.
[73] There are legitimate grounds to be concerned about the father's level of commitment in becoming M.L.'s custodian and full-time caregiver. On the other hand, the father is a caring and competent parent. He recognizes the benefit of M.L.'s being with her siblings, is willing to find larger accommodations and acknowledges the benefit of the mother's help. The question now to be asked is whether this recent plan presents more as a stop-gap measure or a long-term solution for M.L.
4.3: Sole or Joint Custody (A.R. and B.R.)
[74] Section 57.1 came into force on 30 November 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.
[75] Since allowing the mother to occupy his home, the father has referred to her a changed person who helps with the children. There is some evidence, however, indicative of the mother and father not always having navigated in smooth waters. On 27 April 2015, Ms. Roumanes interviewed the children A.R. and B.R.. A.R. indicated that she enjoys her parents being together but that they yell at each other a lot. She said that she did not know why they were fighting. B.R. also indicated that her parents have lots of arguments. She does not know what these arguments are about. These comments are not determinative of any issue but may be taken into account and accorded appropriate weight.
[76] Relevant to the issue of whether the court should grant a sole or joint custody order is the fact that the living arrangement agreed to by the mother and father is temporary in nature. The mother is not residing in the home on a long-term basis. She is not in a relationship with the father. Her goal appears to be to re-establish herself sufficiently to move out and acquire her own residence. There is no evidence that the mother and father are working toward a reconciliation.
[77] It becomes less than certain if not doubtful that, in the longer term, the mother and father shall be able to make parental decisions together. In these circumstances, the father to his credit has already adequately taken up the challenge of making key decisions about the children. He has been doing quite well on his own. Given the current mechanics of his relationship with the mother, it is questionable whether from a practical viewpoint the format should be changed.
[78] It is to be noted on this issue that the mother is not now well received by the father's family nor has she had much time to repair the trail of dishonest conduct she has left behind in the eyes of the society.
[79] There is no doubt that the mother loves her children and remains a presence in their lives. This is manifested daily because she has returned to the father's home and resides with them. On a temporary basis, she has been well-received and contributes in looking after the children (A.R. and B.R.). On the other hand, there is no need, based on the mother's current and temporary presence in the home, to tinker with the status quo. Absent more information in terms of the mother's goals and on the heels of her unreliable behaviour, it is difficult to surmise that a joint custody order in the current context would in any meaningful way be advantageous to the children taking into account what is in their best interest.
[80] Within the circumstances as they now exist, it remains important that the father continue to be able to make important decisions about the children. This does not mean that the mother (especially if she is residing in the home and making practical contributions), cannot within the father's discretion contribute in a practical way on day-to-day basis. My decision on this point is not to be taken as a criticism of the mother. The fact remains that, although the mother has returned to the home (not in a relationship with the father), a cloud of uncertainty remains regarding her future plans and her future relationship with R.L.
[81] Generally speaking, the court has always held that joint custody requires a mutual commitment between parents to co-operate on matters pertaining to the raising of their children and an ability for the parents to put their own interests behind those of the children.
[82] In the recent past, the mother has not shown an ability to put her own interest behind that of the children and, in these circumstances, the court should be deferential to the father who in the final analysis has been living the reality of caring for his two daughters. It is simply not necessary on these facts to preserve any type of balance of power between the parents for the advantage of the children. Moreover the mother has not in the recent past been truthful or collaborative and has expressed a lack of understanding of how she placed the children at risk.
[83] The mother and father are looking after the children together at this time due to hapless circumstances. Prior to this, the society had full confidence in the level of care provided by the father on his own and in his judgment on the issue of making proper decisions. The current arrangement appears to be temporary and in the context of what is in the best interest of the children, it is preferable that the father be granted sole custody.
4.4: The Child M.L.
[84] R.L. did not respond to the amended application. The level of suggested risk that his presence posed (and poses) to children was not seriously challenged at trial. He was described as a person who abused illegal drugs, a person with a significant record and a child sex abuser. No evidence was presented in terms of efforts by Mr. R.A.L. toward treatment or rehabilitation. He is the father two older children with whom it is said he has no meaningful contact. His younger daughter L.L. was made a Crown ward in accordance with Justice Humphrey's decision dated 21 June 2012.
[85] In the absence of input by Mr. R.A.L. (or on his behalf), the court has, in the face of largely uncontested evidence, proceeded on the basis that he posed (and poses) a serious risk to children. There is evidence that the mother has not agreed with this categorization but it is clear that she understands that the society proceeded with its amended application because of her relationship with R.L. and her refusal to keep the children away and out of his presence.
[86] M.L. is doing very well in her foster home. By all indications, she is a happy and healthy child. There have been some developmental issues including feeding sensitivity, plagiocephaly (flat head syndrome), suspected mild asthma and mild expressive language difficulties. Although these issues have been identified, she has not been classified a child with "special needs". In fact, there is every reason to conclude that her symptoms are abating and will not in the longer term affect her health, growth or development over time. It is assumed of course that her caregiver(s) will maintain a watchful eye on these identified health related issues as well as any that may surface in the future.
[87] Counsel for the society submitted that, because of the mother's serious track record of non-compliance with court orders or reasonable directives, it would not be feasible at this stage to place M.L. in her care under another supervision order as there is little assurance that she would comply.
[88] The evidence clearly establishes that there is no significant relationship between M.L. and the father (M.R.). The only contact between them has been infrequent and incidental. There is no evidence of attachment. The father has also demonstrated ambivalence in terms of his commitment to care for M.L.
[89] The entire idea of a custody order in the father's favour was hatched at the last minute and emerges from the mother's regrettable personal exigent circumstances. In considering the totality of the evidence, the court must be cautious against adopting this type of temporary transitional resolution that does not meet the child's need for permanence and stability.
[90] At this point in her life, M.L. needs the benefit of a predictable future. There is some merit in the society's argument that to place her in the father's care under a custody order might be tantamount to engaging in an experimental project geared to seeing how things would work out. At this stage, the father is extremely busy. His energy is spent in caring for his daughters and ensuring their well-being. The mother resides in the home on a temporary basis. The father's level of commitment in taking on the additional challenge of caring for M.L. (as a custodial parent) is questionable. The mother is not in a relationship with him and as already stated there is no reason to think that her presence and/or ability to help is other than temporary.
[91] The granting of a custody order in favour of the father in these circumstances is like trying to force a square block into a round hole. The order would result in the mother's likely becoming the de facto caregiver while her own final plans remain in limbo. Continuity in M.L.'s care would be at serious risk if this newly hatched plan was implemented.
5: CONCLUSION
[92] Section 1 of the Child and Family Services Act sets out the Act's various purposes and objectives. The paramount purpose of the Act is to promote the best interests, protection and well-being of children.
[93] In arriving at the determination of what is in the best interest 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.
[94] The factors that lay in favour of M.L.'s return to her mother include her relationship with her mother by blood; the importance of her developing a positive relationship with her mother; and the risk that she (M.L.) may suffer from emotional harm by being kept away from the care of her mother. No evidence was called on the issue of any risk to M.L. regarding the severance of her attachment with her mother. The court does not discount the importance of these factors and they certainly must be given appropriate weight. The remaining relevant factors however weigh heavily in favour of a Crown wardship order and plan to secure permanency and stability for M.L. including adoption.
[95] Of key importance to ensure that M.L. has a chance at long-term stability but is the issue of continuity in her care, I adopt Justice Keast's comment in the decision of Children's Aid Society of Sudbury and Manitoulin v. Tiffany S. and Nicholas F., 2011 ONCJ 745, where he stated as follows (emphasis is that of Justice Keast):
[128] Of the best interest criteria under s. 37(3), item 7 is by far the most important, in this particular set of circumstances. Given the chaotic history, continuity in the children's care is paramount. Disruption in continuity would have significant consequences for the children. Children can only absorb so much instability during their formative years. At some point, there is a real risk of long-term emotional harm. From child to child, the tipping point is not known. Some children are less resilient than others. A conservative approach is in the best interest of the children.
[96] In considering the totality of the evidence, I must conclude that the mother's plan to have the father become M.L.'s joint or sole custodial parent would not achieve the goal of ensuring continuity of her care. Continuity of care for M.L. is now paramount. There would be too much potential for disruption in M.L.'s continuity of care should she be placed in the father's custody or in the joint custody of the father and the mother.
[97] The mother now admits her mistakes and acknowledges that she is prepared to abide by any reasonable terms and conditions imposed by the court. The difficulty however is that the mother's track record is one of non-compliance. She has previously been unable to adhere to reasonable directives and court orders and even in the face of losing the care of her children, chose to allow her destructive relationship with R.L. to continue. Any promise now made by the mother must be cautiously weighed in view of her weakened credibility.
[98] As already indicated, the plan of placing M.L. with the father (not her biological father) was hatched at the last minute (so to speak). It is not known how long the mother will remain at the father's residence, but it is evident that, at some point, she envisages a transition of the child's returning to her care. This entire scenario lacks predictability and for the most part fails to provide a proper framework to ensure M.L.'s continuity of care and long-term stability.
[99] Unfortunately, the mother is not in a position (after a significant time lapse) to care for M.L. on her own. She has no defined future plans. She has demonstrated a strong lack of commitment to following reasonable directives or court orders. Moreover, even if the mother met the challenge of being more self-sufficient and independent, there is no certainty at this time that she would remain reliable in the longer term. Recent conduct dictates otherwise. It is most important that M.L. now have the opportunity to enjoy a stable environment and be given a solid chance at striving to her full potential.
[100] Further, it is not an option on these facts to consider a supervision order in favour of the mother. The mother's lack of truthfulness, inability or unwillingness to collaborate, failure to understand how she may have put her daughter at risk, failure to cleanly sever her relationship with R.L. while in a caregiving role and lack of future planning militates against the granting of a supervision order.
[101] I fully recognize that this decision will be difficult for the mother. The court sympathizes with the mother but wishes her to understand that, at this point, the final decision is not about her, it is about the child and what is in her best interest. It is in M.L.'s best interest to order that she be made a Crown ward with a view to securing a long-term, stable home that can meet all her physical, mental and emotional needs.
6.1: Access
[102] Access is dealt with in sections 58 and 59 of the Act. Section 58 permits one to seek an access order in respect of a child who is in the "care and custody or supervision" of a society. Subsection 59(2.1) creates a presumption against access where the child is a Crown ward.
[103] The focus of subsection 59(2.1) is very narrowly on the tests of beneficial and meaningful relationship and no impairment of adoption opportunities. Best interests, including a child's wishes, are not mentioned. It is only when one gets through the narrow gateway of subsection 59(2.1) that the wider best interests test of subsection 37(3) becomes open for discussion.
[104] Section 63.1 (in force on 30 November 2006) stipulates that, where a child is made a Crown ward, the society shall make all reasonable efforts to assist the child to develop a positive, secure and enduring relationship with a family through adoption or a custody order. In other words, section 63.1 makes it clear the legislature has determined that the best interests of children who cannot return to a parent's care and who are adoptable lie in a permanent family placement by way of adoption or a custody order.
[105] The mother has been making an effort to maintain a presence in M.L.'s life. Since her return to Sudbury from Sault Ste. Marie, she has exercised regular access. The access visits have gone reasonably well and M.L. has enjoyed being with her mother.
[106] In the larger picture, the mother must show more than just that M.L. has had a good time during visits. As stated in Children's Aid Society of Peel Region v. Marsha S., 2006 ONCJ 523, more is required than just a display of love between parent and child. It has been held that a person seeking access must establish that his or her relationship with the child "brings a significant positive advantage to the child." See Children's Aid Society of Niagara Region v. J.C..
[107] The Act essentially creates a presumption against access. The burden of proof on a balance of probabilities rests with the mother. The mother has not met the burden of proof. She has not established that her relationship with M.L. brings (or shall bring) a significant positive advantage to her life. In the final analysis, the court must conclude that the evidence falls short of establishing that ongoing access would be beneficial and meaningful. Of paramount importance at this stage is that M.L. should be given a chance to immediately be provided with continuity of care and long-term stability.
[108] The second element of the test under subsection 59(2.1) places a burden on the person seeking access to show that an access order would not impair a child's future abilities to be adopted. In essence, the mother would have to satisfy the court that access would not diminish, reduce, jeopardize or interfere with M.L.'s future opportunities for adoption.
[109] M.L.'s adoptability is not in issue. She has made excellent progress while in foster care. She has enjoyed being with her half-sibling L.L.. Her foster parents have adopted her half-sibling L.L.. Essentially, M.L. is a happy child who has adjusted well in her current family setting. She has formed an attachment to her foster parents who have expressed an interest in adopting her.
[110] The mother has not shown good behaviour in the recent past. She has exhibited a lack of comprehension in the society's efforts to keep the child risk free. She has not fully co-operated with M.L.'s current caregivers. She has historically shown little respect for court orders or common sense directives. Absent the father's goodwill, she does not currently have a home. There is no convincing assurance that her relationship with R.L. is terminated. During her testimony, the mother did indicate that she now has a better understanding of the issues. Although any move in the right direction taken by the mother must be seen as commendable, she has not in the overall picture provided sufficient evidence to satisfy the onus that an access order would not impair the child's future opportunities for a permanent or stable placement attainable through adoption.
[111] On these facts there exists a likelihood that an access order would negatively impact or impair M.L.'s future opportunities to be adopted.
6.2: Final Order
[112] For the above reasons, it is ordered as follows:
1. Pursuant to subsection 57.1(1) of the Child and Family Services Act, the respondent father, M.R., shall be granted sole custody of the children, A.R., born on […] 2002 and B.R., born on […] 2005.
2. Access by the respondent mother, P.R., shall be as agreed upon between the parties, supervised by M.R., or his designate, at M.R.R.' discretion.
3. There shall be no access whatsoever, direct or indirect, by R.A.L. to the children, B.R. and A.R.
4. Any application or motion to vary the provisions regarding the custody or access provisions of this order shall be served upon the Children's Aid Society of the Districts of Sudbury and Manitoulin or the agency in which the children are residing, which agency may, at its discretion, become a party to the proceedings.
5. That the child M.L., born on […] 2012, be made a ward of the Crown without access.
Released: 12 November 2015
Signed: "Justice Randall W. Lalande"