SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-03-485-14
DATE: 20120326

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 and in the matter of

RE: The Children’s Aid Society of Ottawa v. D.P., C.D. and A.K.

BEFORE: J. Mackinnon J

COUNSEL:
Judith Hupé, for the Applicant

Karen Leef, for the Respondent , maternal grandmother, D.P.

Audra Bennett, for the Respondent mother, C.D.

Kristen Robins, for the Respondent, father A.K.

DATE HEARD: March 20, 2012

E N D O R S E M E N T

[ 1 ] This motion is for an order for temporary care and custody of three children. The competing parties are the CAS of Ottawa Carleton and the maternal grandmother of the children.

[ 2 ] Briefly, the children are two boys, ages 11 and 8, and a girl, age 2 years. All three children were apprehended from the grandmother’s home on January 5, 2012. Prior to that date, the boys had been living with her since 2003 and the girl for almost eight months.

[ 3 ] In November 2011, the CAS had filed a status review for the boys seeking to terminate its involvement in favour of a voluntary service agreement. At the same time, the CAS sought a six month supervision order for the girl.

[ 4 ] The apprehension took place because of a well founded complaint regarding the condition of the grandmother’s home. It had deteriorated to a level of clutter, disorder and disarray to the point of being unsafe. In addition, the grandmother’s adult son was living there, something that the grandmother had been warned against several times. His large dog was also living in the home which was a concern given the presence of three other animals in the home already.

[ 5 ] I am satisfied that these were the primary reasons for the apprehension. In the supporting paper work, the CAS did identify some other issues, such as the possibility that there had been smoking in the home (one child is asthmatic), and an ongoing need for counseling for the grandmother in relation to hoarding tendencies, past trauma and relationship issues with her adult daughter.

[ 6 ] After the children had been apprehended and were in foster care, other observations were made. The granddaughter thrived and flourished in foster care. She gained needed weight and developed age appropriate skills quickly. She became attached to the foster mother and demonstrated her keen interest in returning to the foster mother’s home after access visits with her grandmother.

[ 7 ] The Society decided to do a kin assessment of the grandmother’s plan to keep her granddaughter on a permanent basis. The report did not recommend this plan. A very significant part of the report is merely a historical review of the CAS files with respect to this family going back into the 1980s. The current investigatory work undertaken for the kin assessment did provide support for the conclusion that the grandmother was having some difficulty focusing sufficiently and equally on all three children and that the granddaughter may have come up on the short end of that measure. These observations and conclusions are consistent with the significant progress made by the granddaughter while in foster care.

[ 8 ] In light of the recommendation in the kin assessment, the CAS has delivered an amended application seeking Crown Wardship for the granddaughter.

[ 9 ] Observations have also been made of the boys during the period in care. They are both doing well in the foster home and at school. The older brother is said to be “making gains” without much specificity being provided. He has told his grandmother that he wants to come home to her, but he has also recently told the social worker that he is not ready to go home. The younger boy has had some problems sleeping and seems to be anxious for his grandmother’s wellbeing. He has consistently said that he wants to go home. There is a concern that he may be somewhat parentified with respect to his grandmother. It was also learned that the grandmother had not provided the school with the prescribed medication that he was supposed to take at mid-day and that an inhaler had not been delivered to the school for him.

[ 10 ] The nurse at the family doctor’s office is reported to have said that she sees a “significant difference in all three children” since in care, but no details are provided such as when or how often she saw them, or what the differences were that she noted.

[ 11 ] The grandmother and her adult son both say that he is no longer living at her place. Yet, his dog remains there as do most of his belongings. This is explained by saying that he is living with an uncle in his small mobile home where there is just no room for his dog or his belongings. Court is told that the son is constantly looking for his own place but has been unable to locate accommodation for a number of reasons. The uncle has also deposed an affidavit confirming that his nephew is living with him.

[ 12 ] Despite this evidence, on every single occasion when a CAS representative has attended the grandmother’s home, her adult son is present. He may be sleeping or showering, he may have a friend with him, but the appearance is certainly that he is continuing to reside there.

[ 13 ] Perhaps the parties have different understandings of what it means to live somewhere. For the purposes of this motion, I find that the adult son continues to reside in the grandmother’s home in that he is there on a daily basis for extended periods of time, together with his belongings and dog. He may sleep overnight at his uncle’s but so doing does not accomplish the sought after goal in the case which is that, for a variety of documented reasons, he ought not to be at his mother’s place, nor should his dog, when the children are residing there. The grandmother is quick to point out that, at present, the children are not residing with her. This is true, but she is also aware that the CAS asked her to demonstrate that she can and will remove him and the dog from her home before the children go back, and she has not done so.

[ 14 ] The grandmother has addressed the organizational issues with respect to her home in a satisfactory manner. She is receiving counseling from her church and continues to be on a waiting list for professional, subsidized counseling services from a local community organization.

[ 15 ] The kin assessment also expressed concern for the long-term viability of the grandmother’s parenting plan for the boys. The CAS has stated its intention to seek a family court clinic assessment prior to deciding its position as to the long term care of these boys.

[ 16 ] Section 64(8) of the CFSA provides that on a status review, the child shall remain in the care and custody of the person having charge of the child until the application is disposed of unless the court is satisfied that the child’s best interests require a change in the child’s care and custody. This provision includes in it the possibility of changing the terms and conditions under which a child resides with the person who previously had charge of the child. In this case, the onus is on the CAS to establish a basis for changing the children’s placement as being required in their best interests.

[ 17 ] In my view, they have done so with respect to the granddaughter. She has clearly made significant improvements in her physical health and in her skill development in foster care. She has easily formed an attachment to the foster mother and is clingy with her and desirous of returning to her after visits with the grandmother. In my view, the change in her placement is required in order to meet her best interests. For this reason, an order will go awarding temporary care and custody of her to the CAS. If satisfactory terms of access are not agreed to between the parties, that issue may be returned to court on a separate motion.

[ 18 ] I have not been persuaded that the boys’ best interests do require a change in their placement now that the grandmother has cleaned and organized her home. The evidence as to progress they may have made in care lacks cogent detail. The CAS concerns must be weighed in light of the lengthy time that the children have resided with the grandmother and the fact that the CAS was ready to terminate its formal involvement with them in November. It would appear that the grandmother has taken some steps towards removing her adult son from her home. I am satisfied that he overnights elsewhere and that the belongings he does not require for daily living have been boxed away. This is not sufficient but shows some progress on her on part. It is enough to persuade me that the CAS has not met its onus to show that the boys’ best interests now require them to remain in care.

[ 19 ] Accordingly, the boys are ordered to be placed in the temporary care and custody of the grandmother subject to supervision by the CAS on terms and conditions. The first condition, which is more accurately stated as a pre-condition, is that the grandmother has completed the removal of her adult son, his belongings and his dog from her home within two weeks of the day of this order. The second term is that neither he nor the children’s mother may be present in her home at anytime, whether or not the children are actually in the home at that particular time, without the prior written consent of the CAS.

[ 20 ] Terms and conditions 1 to 8 and 10 to 17 as set out in the grandmother’s proposed terms and conditions dated February 17, 2012 and included in the endorsement record following my endorsement of same date are also included as terms and conditions of the supervision order. Condition 17 is expanded to include her adult son.

J. Mackinnon J

RELEASED: March 26, 2012

COURT FILE NO.: FC-03-485-14

DATE: 20120326

SUPERIOR COURT OF JUSTICE - ONTARIO IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 and in the matter of RE: The Children’s Aid Society of Ottawa v. D.P., C.D. and A.K. BEFORE: J. Mackinnon J COUNSEL: Judith Hupé, for the Applicant Karen Leef, for the Respondent, maternal grandmother, D.P. Audra Bennett, for the Respondent mother, C.D. Kristen. Robins, for the Respondent, father A.K. ENDORSEMENT J. Mackinnon J

RELEASED: March 26, 2012