Court File and Parties

Ontario Court of Justice

Date: May 3, 2018

Court File No.: Toronto DFO 17 15444 B1

Between:

A.T. and M.J. Applicants

— AND —

A.J. AND J.C-J. Respondents

-AND-

AN.J. Respondent

Before: Justice E.B. Murray

Reasons for Decision released on: May 3, 2018

Representation

• A.T. — acting on his own behalf
• M.J. — acting on her own behalf
• A.J. — acting on his own behalf
• J.C-J. — acting on her own behalf
• Mr. Ed Rice — counsel for the respondent AN.J.

Decision

MURRAY, E. B. J.:

[1] This is my decision on an oral motion made by AN.J. asking that the court make an order requesting that the Children's Lawyer appoint a lawyer for the child "Tyreke" [1] J.

[2] Tyreke is 11, almost 12 years old. He is the child of A.T and AN.J. As a result of an intervention by the Children's Aid Society, he was transferred in July 2015 from AN.J.'s care to the care of A.T and his partner M.J. The Society supervised this placement for two years, and assisted A.T and M.J. in arranging for trauma-based treatment for Tyreke at Sick Kids Centre for Community Mental Health (formerly Hincks-Dellcrest). That treatment is ongoing.

[3] In early 2017 the Society decided that supervision of Tyreke's placement was no longer necessary. In May 2017, with the encouragement and support of the Society, A.T and M.J. applied for an order of custody of Tyreke. This application was supported by the maternal grandfather, A.J., and his spouse J.C-J., who are parties in this case. (A.J. and J.C-J. were Tyreke's caregivers early in his life pursuant to a 2008 order, when he was removed from AN.J. and A.T.'s care because of concerns about neglect and domestic violence.)

[4] At the time A.T. and M.J. began their application, AN.J. had not seen Tyreke since he left her care in 2015. She had a couple of early telephone conversations with the child. These conversations upset Tyreke, and at the Society's direction she stopped calling. In the intervening two years she made no requests for access. She did not send cards, letters, or presents. She did not commence a court application.

[5] AN.J. responded to A.T. and M.J.'s Application. She seeks an order of custody, and, if that is not granted, access. Her request is opposed by A.T. and M.J., as well as A.J. and J.C-J. They say that Tyreke does not wish contact now and that it would be emotionally damaging for him to force contact. They say that he has made his wishes clear to his therapists, and that AN.J.'s action has caused him serious stress and anxiety, noted by his school and therapists.

[6] AN.J. now asks for an order requesting that the Children's Lawyer appoint a lawyer for Tyreke. A.T. and M.J., supported by A.J. and J.C-J., oppose such an order at this time. They say that the report from Sick Kids Centre is reliable evidence as to Tyreke's wishes, and that getting the OCL involved will only add to Tyreke's stress.

[7] The court has discretion under s. 89 of the Courts of Justice Act to request that the Children's Lawyer appoint a legal representative for a child. That is one way of giving children the right to be heard in actions dealing with their lives, a right set out in the International Treaty on the Rights of the Child, to which Canada is signatory. There are other avenues through which the court can receive a child's views. A judicial interview is one. A report from a therapist working with the child is another.

[8] I have before me a trauma-informed assessment report from Hincks-Dellcrest concerning Tyreke dated December 15, 2016 and a report concerning Tyreke's treatment from Sick Kids Centre dated January 2, 2018.

[9] The Hincks assessment was initiated because of Tyreke's difficulties with emotional dysregulation—aggressive and impulsive behaviours, inattention, hyperactivity. The assessment team made it clear that the roots of these behaviours were found in Tyreke's life history, not just his last two years with A.T and M.J. They said that "Given Tyreke's history of neglect, physical abuse, witnessing domestic violence and multiple caregivers, (his) presenting issues can be understood from a developmental trauma perspective". Individual and parenting therapy was recommended.

[10] Tyreke has been treated on a weekly basis at the Sick Kids Centre since November 3, 2016 in a course of trauma-based therapy. A.T and M.J., as his caregivers, are seen weekly by another therapist. Set out below are selected portions of the Sick Kids report.

Sick Kids Centre Report Excerpts

The goals of the therapeutic treatment were to understand the ways in which Tyreke was impacted by the difficult events he experienced, to address his acting out behaviours at school (e.g. disruptive, trouble settling down, staying in his seat), challenges with transitions and altered routines (e.g. anger), as well as self-regulation difficulties (e.g. unable to talk, express himself, curl up into a ball). When the co-therapists involved ended with the agency, Tyreke was reported to have made significant progress, but continued to require support….

In recognition of the progress Tyreke has made, the current Service Plan involves work revolving around continuing to support Tyreke (and caregivers) in understanding ways in which challenging life events continue to impact him (i.e. through behaviour at school, managing changes and transitions, and self-regulation) as well as to provide a safe space to explore and process emotions around traumatic experiences….

Toward the goal of providing a safe space to explore and process emotions, this team observed that since the onset of court there have been escalating presenting concerns in Tyreke's presentation within sessions. This was also reported by parents in the home, and by teachers at Tyreke's school; the latter which necessitated a meeting involving Ms. M.J., two of Tyreke's teachers and Ms. Furtado, Family Therapist, to discuss the disruptive behaviours that were re-emerging in class. In therapy sessions, Tyreke has appeared fidgety, closed off, defiant at times, and has expressed difficulty in trusting adult figures that are not his current primary caregivers. Additionally, when discussing the possibility of reconnecting with his biological mother, Tyreke expressed emotions of sadness, anger, and frustration. Past traumatic experiences related to his mother seemed to resurface, as Tyreke began to recount some of them while expressing these painful memories.

At the same time, Tyreke showed careful hopefulness about having a healthy relationship with his mother in the future, when both of them have completed a meaningful therapeutic process. When discussing his impressions of the court proceedings, Tyreke has stated that he would not like to have visits with his mother at the current time and shared that "I want to wait another year until 2019" at which point, he believes he would be more ready to make a decision about this matter. He also stated that "I want to see my sister before I see my mom, if possible''. Tyreke expressed concern with his mother's feelings about the above preferences and shared that "I don't want her to feel offended".

Tyreke shared that he would like his biological mother to understand the impact that his experiences in her care have had on him. He has expressed that he would like an apology from her acknowledging the trauma he has experienced. He also shared that he would feel more comfortable if his mother engaged in therapeutic parenting sessions, as his primary caregivers have done at this agency. Through this parent work, Tyreke has responded well to increased stability in his current environment where he has a consistent schedule and expectations. Tyreke has shared and has been observed to benefit from being provided information about changes in advance and appropriate time and space to process his feelings in relation to his experiences. He was agreeable to the idea of his biological mother engaging in services with this agency at another site in the future….

Tyreke is aware that he may change his mind about the above information and that he can freely communicate this to significant persons in his life. Finally, he is aware that his reflections on his current needs and desires do not guarantee any specific outcome with the court process.

[11] Tyreke has been meeting with his current therapists weekly since October 2017. They are well aware of his needs and his ability to receive and communicate information. I am satisfied that their report is reliable in communicating Tyreke's wishes and concerns. Although this information was not gathered for the purpose of use in court, in my view Tyreke's therapists are at least as able as any lawyer who might be assigned by the OCL to perform this function. As the report notes, Tyreke's views may change; they have alerted him to this possibility and his right to communicate his wishes.

[12] I am concerned that appointing a lawyer for Tyreke, at least at this stage of the action, would add to the child's anxiety by involving him more directly in the case. A lawyer assigned by the OCL would meet with the child at least three times. The lawyer could very well find it necessary to ask for a clinical assist, which would mean more interviews of Tyreke, and interviews with the parties and perhaps collaterals.

[13] Although the court might obtain additional evidence as a result of an appointment of a lawyer for Tyreke, in my view the possible benefit of that appointment is outweighed by the additional anxiety that Tyreke would suffer. There are other ways of obtaining relevant evidence.

[14] I decline to make an order asking for the appointment of a lawyer for Tyreke.

Released: May 3, 2018

Signed: Justice E.B. Murray

[1] A pseudonym