ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: C640/12
DATE: 2012-04-23

BETWEEN:

Children’s Aid Society of Hamilton Applicant – and – B.D. and F.T.M. Respondents

Treena Watts, for the Applicant

R. Wasserman, for the Respondent Mother
J. B. Kerr, for the Respondent Father
V. Mendes da Costa for O.C.L.

HEARD: April 19, 2012

The Honourable mr. justice a. pazaratz

1 . In this temporary care hearing, the mother B.D. is 38 years old; the father F.T.M.is 46. They have four children: a 15-year-old son, K.T.M., and three daughters, C.M.M. [age 12], A-R.C.M. [age 9], and K.N.M. [age 5].

2 . The parents separated in November 2010 after approximately 15 years of unmarried cohabitation. Upon separation the father went to live with his current partner J.L., who is 45. Soon after separation, and without court order, the parties agreed to an equal time-sharing arrangement which primarily took the form of alternating five-day blocks of time with each parent.

3 . But many problems have arisen; relations between the parties remain volatile and acrimonious; and since November 2010 the Children’s Aid Society of Hamilton (the Society) has been involved trying to protect the children from exposure to adult conflict within an increasingly bitter and turbulent custody/access dispute.

4 . Both parties acknowledge that notwithstanding the overall 50-50 time-sharing agreement, the oldest child K.T.M. has resided almost exclusively with the father; and since approximately June 2011 C.M.M. has resided almost exclusively with the mother.

5 . The parties also agree that the youngest two girls have, for the most part, been splitting their time equally between the parents. K.N.M. has been doing so consistently. In A-R.C.M.'s case there was a period in December 2011 and January 2012 when the nine year old expressed reluctance to have contact with the father. However most recently A-R.C.M. has also been spending equal periods of time with each parent.

6 . The Society has now concluded it can no longer rely on voluntary cooperation by the parents; the equal time sharing arrangement has become unworkable; and that the unresolved (and chaotic) custody/access dispute has endangered the children to the point where intervention is required.

7 . On April 3, 2012 the Society commenced a protection application, requesting that the son be placed with the father and that the daughters be placed with the mother, with all placements to be under the supervision of the Society for a period of six months. The mother's access to K.T.M. would be as arranged between mother and son. The father's access to the daughters would be in the discretion of the Society. For the moment, the Society proposes that his access would be supervised.

8 . The children were not apprehended, but on the first return date of the application, April 4, 2012, I made a temporary temporary without prejudice order as requested by the Society, and the Office of the Children's Lawyer (OCL) was appointed to represent the children. That order was on consent of the mother but opposed by the father.

9 . The father has now brought a motion dated April 11, 2012 requesting that all four children be placed temporarily in his care, or in the alternative that the children be returned to the care of the parents on an equal time-sharing basis. As well the father requested an assessment under section 54 of the Child and Family Services Act (CFSA) "to be completed by a forensic psychiatrist".

POSITIONS AT HEARING

10 . At the temporary care hearing the Society’s position was, for the most part, supported by the children’s lawyer. However, Ms. Mendes da Costa questioned whether it was realistic or appropriate for the father’s access to the girls to be supervised.

11 . The mother agreed with the Society that the three daughters should remain in her care under a supervision order. She agreed the father's access should be supervised.

12 . The mother did not request that the boy K.T.M. be returned to her at this time. She admits K.T.M. has many problems and she cannot currently handle him. She agreed that access between herself and K.T.M. should be left for the two of them to work out.

13 . During submissions the mother’s lawyer Mr. Wasserman questioned whether it was safe to leave the 15 year old with the father and his girlfriend. He suggested – but did not strenuously argue – that perhaps K.T.M. would be better off being placed in Society care. Neither the Society nor the OCL supported the submission.

14 . The father’s position changed somewhat by the time the temporary care hearing was argued. While his materials requested that all four children be placed in his care, during submissions Mr. Kerr proposed that K.T.M. reside with the father and that C.M.M. remain with the mother.

15 . The real issue relates to A-R.C.M. and K.N.M. While the father had initially requested that they also be placed in his care, during submissions Mr. Kerr suggested these youngest two daughters be placed in the care of both parents equally, on a 50-50 time sharing basis, under Society supervision.

16 . All parties agreed that the father’s request for a parenting capacity assessment should be adjourned at this time.

THE ALLEGATIONS

17 . Ms. Watts argued that from the Society's perspective, working with this family has been difficult because for almost a year and a half both parents have been making similar allegations against one another, often without independent witnesses or corroborating evidence. For example:

a. Each parent alleges drug and alcohol abuse by the other.

b. Each complains about physical conditions and the environment in the other party's home.

c. Each alleges that the other parent’s new partner has behaved inappropriately, and represents a threat to the children’s well-being.

d. Each blames the other for the children's poor school attendance.

e. Each blames the other for a lack of follow-through regarding children's medical issues. Each accuses the other of failing to fill out prescriptions for K.N.M.

f. Each accuses the other of discussing court proceedings with the children. K.T.M. has stated that both parents have discussed custody access issues with him, and he wants this to stop. Each complains that the other party allowed A-R.C.M. to read court documents.

g. Each accuses the other of making inappropriate and denigrating statements to the children. The father in particular has alleged parental alienation by the mother.

18 . Counsel for both the Society and the OCL identified their primary concerns as relating to the father. These concerns include:

a. The Society has made significant efforts to engage the father and work with him, but for the most part he has refused to cooperate. At times he has said he does not wish to be involved with the Society. At other times he has objected to the worker assigned to his case.

b. The Society is concerned the father may have underlying mental health issues. This is based upon the father's presentation and his impulsive (and at times aggressive) behaviour, as commented on by school, police, and other professionals.

c. The father has repeatedly attended at the children's school in a disruptive and at times aggressive manner. He has removed the children from school without the mother’s knowledge or consent. He has been confrontational with staff. School officials have been so concerned about the father’s behavior and attitude that on two occasions they have sought to ban him from "trespassing" at the school. The children have expressed concern about the father coming to school and taking them.

d. The father recently decided to "home school" the children (even though he only had the two youngest girls 50% of the time). He insists that he discussed this with the mother although she denies it (and does not approve). There appear to be serious concerns about merit and potential benefit of this plan. The father appears to have no particular qualifications or insight with respect to educational issues. Some of the children were already suffering academically. Perhaps as an acknowledgement that this unilateral action was ill-conceived, Mr. Kerr now proposes that as part of the father’s plan, all of the children would be returned to full-time attendance in school.

e. The father appears to have a turbulent and unstable relationship with his live-in partner J.L., who appears to have multiple problems of her own. The father has repeatedly made excuses for his partner’s inappropriate behavior in the past, blaming her medication or her medical diagnoses.

f. An affidavit filed by OCL clinical investigator Michelle Hayes summarized numerous police calls involving the parties, and in particular involving late night disturbances between the father and J.L. – disturbances characterized by erratic behaviour and significant consumption of alcohol. Other police reports from several years ago describe various “disturbance” type incidents involving the mother and father, jointly and individually. Both parents have had more than their share of police interactions in dubious circumstances. Indeed, the mother appears to have an old arrest warrant outstanding in Thunder Bay for theft or fraud (police won’t be returning her to that jurisdiction). But the father’s multiple domestic disturbance calls involving J.L. in 2011 suggest serious problems with alcohol abuse and an unstable home environment. The OCL clinical investigator noted she is still waiting for 2012 police records.

g. The father was not forthcoming about K.T.M.'s whereabouts when the oldest child “disappeared” for a period of time in February 2012. He advised the Society that K.T.M. was staying with a nephew but he refused to provide sufficient information to enable the Society to check on the boy. Later K.T.M. disclosed that for most of the time in question, he had actually been staying with the father. The Society submits that this act of deception about K.T.M.’s whereabouts is one of many reasons why none of the girls can be entrusted to the father’s care under a supervision order.

h. The Society is concerned that while the father is able to recognize situations in which the children are impacted by parental conflict, the father refuses to take any responsibility for the problems the children are experiencing. Instead he attempts to justify his actions, and place blame on the mother.

i. Overall the Society has significant concern about the father's pattern of unreasonableness behaviour, and his lack of insight.

19 . The father denies most of the allegations. He filed a lengthy and somewhat unfocussed affidavit which added only limited clarity to his position.

20 . The father has expressed significant concerns not only about the mother but also about her boyfriend K. While the father alleges that they are living together, the Society believes that the boyfriend has his own residence where he resides with his own children. The Society has not verified any of the concerns about the boyfriend raised by the father. Ms. Watts stated that the Society would be following up on an allegation that the oldest child K.T.M. used marijuana with the boyfriend.

21 . His lawyer Mr. Kerr insisted the mother has just as many problems and personal deficiencies. He submitted the mother has been no more cooperative with the Society than the father, and that both parents are equally matched in terms of strengths, weaknesses, and the likelihood of successfully complying with a supervision order. However the Society and the OCL disagree that the parents present equal cause for concern.

22 . The Society states that while the mother has at times been uncooperative, for the most part – currently and for a long time now – the mother has been cooperative and amenable to receiving assistance and guidance from the Society. In contrast there have been significant periods of time when the father absolutely refused to have any contact with the Society.

23 . The Society also distinguishes the parents in terms of accountability. Clearly, both parents have made (many) mistakes. However from the Society's perspective, the father has consistently indicated that he believes all of the conflict since separation in November 2010 has been caused by the mother. He does not acknowledge that there is anything he could have done differently, or that he ever acted inappropriately. In contrast, the mother has shown a willingness to recognize and acknowledge problematic behaviour; a willingness to accept suggestions, and work with professionals.

24 . From the Society's perspective, the father does not appear to recognize (to the same extent as the mother) that the children require more structure, stability, and insulation from adult conflict.

INEFFECTUAL PARENTING

25 . However “blame” is apportioned, the reality is that the parties have clearly demonstrated that they can no longer be entrusted to jointly organize these children’s lives, or maintain an unstructured “equal time” sharing arrangement. Among the many conflicts on very basic issues:

a. The parties have had disputes concerning the children's health cards. The father admits he changed the health cards and listed his new address for the children, without the mother’s participation.

b. A dispute arose as to whether one of the parties was trying to secure passports for the children or leave the jurisdiction with some of the children.

c. The father admits he cancelled a medical appointment for K.T.M. which had been arranged by the mother. The father said the appointment was useless and that the mother had only scheduled the appointment to further her case and make him look bad.

d. The father accused the mother of preventing him from getting information about A-R.C.M.’s dental care.

e. The father says the mother never told him that C.M.M. was seeing a psychiatrist

f. The parents have been unable to agree on access exchange locations and terms.

g. At times the father has refused to release the children to the mother.

IMPACT ON CHILDREN

26 . The affidavits filed on this motion disclose numerous instances of school officials, doctors, social workers and other professionals expressing concern about the impact of the unresolved custody/access dispute on the children. Among the problems the children have experienced:

a. All of the children have complained about being exposed to the ongoing conflict between the parents. They have all acknowledged the significant stress this has caused them, and how they have been caught between their parents.

b. 15 year old K.T.M. has a problem with aggressive behavior – so much so that the mother says she cannot control him and she is not prepared to have him returned to her home at this time. She wants to maintain contact with him but she feels she is unable to provide the structure that he needs. She is confident that she and her son will be able to work out access on their own.

c. K.T.M. has displayed other problematic behaviors. His school has reported that K.T.M.’s behaviour has changed significantly; he is now missing school on a regular basis; he presents as defiant and aggressive; and he appears to be under the influence of marijuana.

d. Both parents have expressed concern about K.T.M.'s drug use, but they do not agree on the source of his drugs. The father says he believes K.T.M. is getting drugs from the community or from the mother's boyfriend. The mother says K.T.M. is getting drugs from the father's partner J.L. who has her own health issues and has a prescription for medical marijuana. The Society notes that at one point K.T.M. told his school principal that J.L. will give marijuana to whoever asked for it.

e. In August 2011 a McMaster University Medical Center social worker expressed concern about K.T.M.’s emotional health, noting that he presented with a “flat affect”. The social worker said the oldest child acknowledged significant stress in the family home and that he felt caught in the conflict.

f. Earlier this year K.T.M. was brought to the hospital after he injured his hand by punching a wall out of anger. A social worker expressed concern about conflict in the family and its impact on the children.

g. K.T.M. has complained that both parents have discussed custody/access issues with him and he wants them to stop.

h. 12 year old C.M.M. has developed serious mental health issues. She has been diagnosed as being depressed, and was seeing a counselor but has been reluctant to continue.

i. Several professionals have expressed concern about C.M.M.’s suicidal ideation. In January 2012 her teacher contacted the Society and reported that C.M.M. made comments at school that life was chaotic and she didn't know why she was living. She said she hated her father and expressed worry that she couldn't protect her siblings from bad people.

j. Other mental health professionals have reported C.M.M. as describing her family situation has dysfunctional. She has experienced anxiety and has had trouble coping. She has articulated that she has low self-esteem and is angry most of the time. She has a tendency to turn anger inwards and call herself names.

k. C.M.M. is experiencing significant problems in school. She is struggling in grade 7 and functions at the grade 2-3 level. School officials say she used to be a fairly good student but after December 2010 she became very defiant and uncooperative. School officials have recommended a second psychoeducational assessment.

l. All of the children have missed significant amounts of school, which has impacted on their academic performance.

m. C.M.M. has only had a couple of visits with the father since last summer. She says she wants no contact with the father, and complains that the father and his girlfriend tell lies. The father’s partner appears to exacerbate the conflict between the parents.

n. The father blames the mother for C.M.M.'s emotional upset, complaining that the mother has allowed the oldest daughter to read court documents.

o. Nine year old A-R.C.M. has told the Society that she is tired of all of the drama. She wants her father to stop lying about her mother. She said her father was trying to turn the children against the mother. She said the father once told her that the maternal grandparents were only visiting in order to make the father look bad and in order to help the mother get custody. The child stated that the mother hardly talked about the father.

p. A-R.C.M. recently expressed a desire to have a break from access to the father. She expressed upset at the father and also stated that she did not like his girlfriend. The middle daughter only resumed access with the father recently.

q. In his materials the father admits he spoke to A-R.C.M. about custody issues. He said he knew there would be trouble, but he felt justified.

r. C.M.M. said that when K.N.M. is with the father, the five year old will call the mother's house and tell the mother that she hates her, but when K.N.M. returns to the mother's care she is loving with her.

CFSA PROVISIONS

27 . This temporary care hearing is to be determined by section 51 of the CFSA which states:

51(1) Adjournments

The court shall not adjourn a hearing for more than thirty days,

(a) unless all the parties present and the person who will be caring for the child during the adjournment consent; or

(b) if the court is aware that a party who is not present at the hearing objects to the longer adjournment.

51(2) Custody during adjournment

Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in,

(i) a place of secure custody as defined in Part IV (Youth Justice), or

(ii) a place of open temporary detention as defined in that Part that has not been designated as a place of safety.

51(3) Criteria

The court shall not make an order under clause (2)(c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2)(a) or (b).

51(3.1) Placement with relative, etc

Before making a temporary order for care and custody under clause (2)(d), the court shall consider whether it is in the child's best interests to make an order under clause (2)(c) to place the child in the care and custody of a person who is a relative of the child or a member of the child's extended family or community.

51(3.2) Terms and conditions in order

A temporary order for care and custody of a child under clause (2)(b) or (c) may impose,

(a) reasonable terms and conditions relating to the child's care and supervision;

(b) reasonable terms and conditions on the child's parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child; and

(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services.

51(4) Application of s. 62

Where the court makes an order under clause (2)(d), section 62 (parental consents) applies with necessary modifications.

51(5) Access

An order made under clause (2)(c) or (d) may contain provisions regarding any person's right of access to the child on such terms and conditions as the court considers appropriate.

51(6) Power to vary

The court may at any time vary or terminate an order made under subsection (2).

51(7) Evidence on adjournments

For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.

28 . The purpose of the temporary care hearing is to determine where a child is to stay until the merits of the protection case can be heard. Subsection 51(3) states that the court shall not make an order placing the child in the custody of someone else or the CAS unless the court is satisfied that there are “reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause 2(a) or (b).” This has been interpreted as: the Children’s Aid Society must establish, on credible and trustworthy evidence, reasonable grounds to believe there is a real possibility that if the child is returned to the parents, it is more probable than not that he will suffer harm. Further, the CAS must establish that the child cannot be adequately protected by terms and conditions of an interim supervision order to the parents. ( Children’s Aid Society of Ottawa-Carleton v. T ., 2000 21157 (ON SC) , [2000] O.J. No. 2273 (Ont. S.C.J.) )

29 . A court can make any of the following orders on an interim care and custody motion, but must choose the order that is the least disruptive placement consistent with adequate protection of the child ( CFSA, s.1(2) ):

a) an order placing the child in the temporary care and custody of the person who had charge of the person immediately prior to the Society’s intervention, without supervision by the Society;

b) an order placing the child in the temporary care and custody of the person who had charge of the person immediately prior to the Society’s intervention, subject to the Society’s supervision, and under reasonable terms and conditions;

c) an order placing the child in the temporary care and custody of a person other than the parent (not including a foster parent), with that person’s consent, and subject to the Society’s supervision, with reasonable terms and conditions, or

d) an order placing the child in the temporary care and custody of the Society.

30 . The last two options – placement with someone other than the parent who had charge of the child prior to the Society’s involvement – can only be ordered if the court is satisfied that there are “reasonable grounds to believe that there is a risk that the child is likely to suffer harm” and that the child cannot be protected if returned to that person, with or without supervision (s. 51(3).)

31 . Accordingly, the section 51 analysis requires a threshold determination of which person “had charge of the child immediately before intervention.”

32 . Here, the parties agree as to “who had charge” of each child prior to intervention. K.T.M. was with the father. C.M.M. was with the mother. There is consensus that those placements should continue.

33 . There is also agreement that A-R.C.M. and K.N.M. were in the care of both parents equally. This places the mother and father on equal footing in a s.51 analysis. As Kukurin J. stated in Children’s Aid Society of Algoma v. M. (J.) 2008 ONCJ 782 (O.C.J.) , “There is no exclusivity inherent in the words "had charge". In other words, more than one person may have "charge" of a child at any particular tim e just as more than one person can have custody or care and control at any one time.”

ANALYSIS

34 . Mr. Kerr submitted on behalf of the father that this is a high conflict custody file in which there is no basis to presume that either party is the better parent, or that either party is more to blame for any negative impact on the children. He argued that while the evidence presented to the court raises equal concerns about both parents, the Society has arbitrarily chosen to take decisive action only against the father. He questioned the logic – or fairness – of suddenly disrupting a long-standing 50-50 timesharing arrangement, particularly where there is no compelling evidence that any risk of harm to the children would be reduced by having them spend less time with one parent, and more time with the other.

35 . I agree with Mr. Kerr that both parents started out on an equal footing in a s.51 analysis. I do not, however, agree that the mother and father share the same collection of problems, or that they represent the same level of risk to their children.

36 . Without question, both parents have significant parenting, lifestyle and perhaps mental health issues. However, based on the evidence, I find that the mother’s problems are comparatively less serious. More to the point, the mother has shown a significant willingness to address her problems and work with the Society and other professionals involved in the children’s lives. In contrast, the father appears to be oblivious to his problems and their impact on his children. His long-standing refusal to cooperate with the Society, and his ongoing conflict with school officials cause me to have little confidence in his sudden promises to change; or his new-found willingness to cooperate with supervision.

37 . In considering the s.51(2) sequential options in relation to A-R.C.M. and K.N.M.:

a. I find that there are reasonable grounds to believe that the children would be likely to suffer harm if returned to the care of the father – either full-time or half the time – and that these children could not be protected adequately by Society supervision.

b. I find that there are reasonable grounds to believe that the children would be likely to suffer harm if returned to the care of the mother – either full-time or half of the time – but that these children could be protected adequately by Society supervision, if the children were placed in the full-time care of the mother.

38 . I agree with both the Society and the OCL counsel: these parties and these children are not well-suited to a 50-50 time sharing regime, whether in alternating 5 day blocks, or in any other format. Equal time sharing requires a workable level of communication, reasonable organizational skills, compatible parenting styles and environments, consistent routines, a mutual capacity and willingness to problem solve, good faith, and maturity. All four children have suffered because the previous equal time sharing arrangement promoted interminable conflict and destructive behaviour. The children require a more structured, consistent environment.

39 . As stated, the Society and the OCL propose that K.T.M. remain in the father’s care. Notwithstanding Mr. Wasserman’s expressed doubt that the father can be entrusted with even one child, I find that any risk of harm to K.T.M. can be adequately protected by Society supervision. Given the child’s age and his preferences, removing him from the father’s home would not only be unwarranted; it would likely create more problems than it would solve. As stated, the mother is content that access to her son be as arranged between them.

40 . Similarly, in his submissions Mr. Kerr acknowledged that while the father would prefer an “equal time sharing” regime in relation to all three daughters, the father is prepared to face the reality that C.M.M. wishes to live with the mother, and currently has little desire to have contact with the father.

41 . With respect to A-R.C.M. and K.N.M., pursuant to s.51 I find that it is appropriate that they be returned to the mother’s care on a full time basis, under supervision.

42 . The only remaining issue is the father’s access to the three daughters. The mother supports the Society’s position that such access be in the discretion of the Society. The OCL has expressed concern the Society has already indicated if given the discretion, it will require that all access be supervised.

43 . C.M.M.’s case is somewhat distinct. She is older. She has already elected not to have ongoing access to her father. She has significant emotional or psychological issues, and her situation needs to be approached with utmost sensitivity. I am not inclined to force any particular form of access in her case, and to his credit the father has also backed off and respected her wishes. The Society will be in the best position to monitor C.M.M.’s progress, her emotional state, and the potential impact of access to the father.

44 . With respect to A-R.C.M. and K.N.M., I agree with Ms. Mendes da Costa that supervised access is a dramatic change for nine and five year old children who are used to spending half their time with their father. While I share the Society’s concern that one of the primary objectives of supervision would be to ensure that the father does not make inappropriate statements to the children, on balance I am not satisfied that such an extreme restriction on access is warranted in all the circumstances. I also wish to ensure opportunities for meaningful sibling access involving K.T.M. and his sisters.

THE ORDER

45 . Temporary Without Prejudice Order:

a. The child K.T.M. shall remain in the care of the father, under supervision by the Society. The mother shall have access to K.T.M. as arranged between the mother and K.T.M. The father shall encourage such access.

b. The child C.M.M. shall remain in the care of the mother, under supervision by the Society. Access by the father shall be in the discretion of the Society, taking into account the child’s wishes and comfort level and any recommendations from mental health professionals in her life.

c. The children A-R.C.M. and K.N.M. shall remain in care of the mother, under supervision by the Society. The father shall have access to these children in the discretion of the Society, but as a minimum the father shall have an unsupervised non-overnight visit with these children on one day each weekend.

d. The father’s request for a parenting capacity assessment is adjourned without a return date, returnable on 7 days notice.

e. Terms of supervision shall be as set out in the Appendix to the Society Protection Application dated April 3, 2012 at Tab 1, pages 7, 8 and 9. However, given my determinations herein, counsel may see me for any refinement of terms of supervision, and any specification which may be required in relation to access.

f. A Settlement Conference has already been scheduled for June 4, 2012 at 11 a.m.

g. In addition, this matter is adjourned to April 30, 2012 at 10 a.m., at which time counsel may address any residual matters.

Pazaratz, J.

Released: April 23, 2012

ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Children’s Aid Society of Hamilton Applicant – and – B.D. and F.T.M. Respondents

REASONS FOR JUDGMENT

Pazaratz, J.

Released: April 23, 2012